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(2008) Crystal HIBBARD, Plaintiff v. Michael J. ASTRUE, Commissioner of Social Security, Defendant. No. Civil Action No. 6:07-285-KKC. United States District Court, E.D. Kentucky, Southern Division, at London. February 4, 2008. OPINION AND ORDER KAREN K. CALDWELL, District Judge. This matter is before the Court on the Motions for Summary Judgment of Plaintiff Crystal Hibbard [R. 10] and Defendant Commissioner Astrue [R. 11]. For the reasons given below, Plaintiff Hibbard's Motion is DENIED and Defendant Astrue's Motion is GRANTED. I. Factual and Procedural Background Plaintiff Crystal Hibbard filed her application for Social Security Disability Benefits on February 14, 2005. Plaintiff originally alleged a disability onset date of June 15, 1999; she later amended this onset date to May 14, 2004. Plaintiff's claim for disability benefits was denied initially and on reconsideration, and on November 17, 2006, Plaintiff testified at an administrative hearing before Administrative Law Judge [hereinafter "ALJ"] Donald A. Rising. Plaintiff Hibbard alleges disability due to a combination of impairments, including anxiety, panic attacks, degenerative disc disease, and carpal tunnel syndrome, with primary symptoms of back, neck, and upper extremity pain. Plaintiff complains of upper and lower back pain, and also alleges problems with her right wrist, neck, and shoulders. She claims that her left shoulder freezes up, and that throughout the day her fingers become stiff, tender, and numb. Plaintiff claims that she is unable to sit down for lengthy periods of time because of her back pain, which she says moves around to different joints of her body. Plaintiff performed secretarial work from. 1984 to 1991, worked as a dataentry clerk from 1994 to 1999. She says that she ceased working in 1999 because work was too stressful, as well as mentally and physically demanding, due to her alleged disabilities. Plaintiff also alleges that from 1999 to 2004 she experienced depression, because of which she remained bedridden for much of her time instead of leaving her home to do other activities. Plaintiff claims that during the above time frame, she could sit down perhaps two hours, stand three hours, and use her hand one to 1.5 hours per day. Plaintiff's Motion for Summary Judgment, at 2 [hereinafter "Plaintiffs Motion"]; ALJ's Opinion, at 3. Plaintiff has been seen and treated by a variety of doctors and medical providers. The first appears to be Dr. Harold L. Bushey, who treated Plaintiff from February 1990 to May 1998. Defendant's Motion for Summary Judgment, at 5 [hereinafter "Defendant's Motion"]. An exam conducted by Dr. Bushey in 1990 revealed scoliosis with convexity to the right in the thoracic area and to the left in the lumbar area. Plaintiffs Motion, at 3. Dr. Bushey remarked that Plaintiffs scoliosis was more notable when she was standing up. Plaintiff received further treatment from Dr. Bushey for lumbar strain and anxiety in 1995, 1996, and 1998, and was prescribed Xanax, Voltaren, Vicodin, and Lortab for these conditions. Dr. Bushey also prescribed a wrist splint in 1995 for right wrist and hand pain attributed to carpal tunnel syndrome. Though Dr. Bushey's records indicate that Plaintiff complained of back pain and that she displayed a tenderness or restriction in her back, these records do not opine about any work-related limitations that Plaintiffs noted conditions may cause. Plaintiff also received treatment from Dr. Mirella Ducu from February 1999 to February 2000. D's Motion, at 6; Plaintiffs Motion, at 3. Dr. Ducu noted that Plaintiff had back pain, anxiety, and other impairments. Dr. Ducu's records, however, did not indicate whether Plaintiff had any functional limitations that would affect her ability to perform work. Defendant's Motion, at 6. Also, from January 1999 to February 2003, Plaintiff received treatment at Butler Health Associates. Records there reflected complaints of back pain and paraspinal spasm, sinus problems, and periodic shoulder or elbow pain. Plaintiffs Motion, at 3; Defendant's Motion, at 5. These records also do not indicate whether Plaintiff would have had functional limitations because of these issues. Plaintiff sought refills of her medications during these visits, and in March 2000, her pain medicagons were switched to Oxycontin. Plaintiffs Motion, at 3. From 1995 on, Plaintiff was also treated at the Clay County Medical Center. Throughout this timer Plaintiff brought varied complaints of neck pain, anxiety, and sinus problems. Defendant's Motion, at 6. In July 1997, Plaintiff was treated for cervical-thoracic strain with swelling, and was also noted to have lateral scoliosis. Plaintiff has been diagnosed with scoliosis since she was nine years old. Plaintiff's Motion, at 5. In September 2003, she reported having back pain, scoliosis, and insomnia. Id. At this time, Plaintiff was noted to have been off of Oxycontin for two to three months. In October 2003, she again complained of neck and back pain, and in November 2003 and August 2004, she complained of chronic right shoulder pain. In August 2004, Plaintiff was also treated for ear pain and a sore throat, but nothing was noted on this occasion about lasting back or other problems. Defendant's Motion, at 7. In 2006, Plaintiff was treated on three separate occasions for chronic neck pain, left shoulder pain, elbow pain, low back pain, and anxiety. Id. Records from the Clay County Medical Center, however, did not explicitly indicate that Plaintiff had any functional limitations due to these diagnoses. Defendant's Motion, at 6. Plaintiff was also seen by Dr. Josephy Stubbers from May 2003 to September 2005 because of Plaintiff's complaints of chronic back pain. ALJ's Opinion, at 4. Dr. Stubbers' initial physical examination, as well as several subsequent examinations, revealed flattening of the lumbar lordosis, and noted pain and discomfort in the lumbar paraspinal muscles. Plaintiffs Motion, at 4. Another physical examination of Plaintiff in September 2004 revealed mild scoliosis. Id.; ALJ's Opinion, at 4. In July 2004, Plaintiff complained of back and ear pain to Dr. Stubbers, who reported that Plaintiff's symptoms remained the same and recommended that Plaintiff obtain radiographs. Defendant's Motion, at 7. X-rays performed in September 2004 returned positive for spurring change throughout the spine, as well as for a mild decrease in joint space. Plaintiff's Motion, at 4. Dr. Stubbers noted that these x-rays showed a possible aneurism, but a later aortic duplex scan did not show aneurism signs. Defendant's Motion, at 7. In November 2004, Plaintiff reported to Dr. Stubbers that if she takes her medications, her pain is controlled, and her level of functioning is improved in that she can do activities such as performing her ADLs, washing clothes, and cleaning her house. ALJ's Opinion, at 4.; Defendant's Motion, at 7-8. Plaintiff also denied any significant side effects from these medications. At this time, Dr. Stubbers did not note any abnormalities on the Plaintiff's examination; he only recommended that Plaintiff adjust her diet and exercise to help control her blood pressure and cholesterol level. Defendant's Motion, at 7. On January 13, 2005, Plaintiff returned to Dr. Stubbers with complaints of back pain, though she admitted that her pain was controlled well with Oxycontin. Defendant's Motion, at 8. Dr. Stubbers noted that Plaintiff had flattening of her T-spine with bilateral paraspinal muscle spasm. Id. Dr. Stubbers initially prescribed Piroxicam, Amitriptyline, and Ultram, and he decreased the dosage level of Oxycontin prescribed earlier by thirty percent. Plaintiff's Motion, at 4. In March 2005, Plaintiff again admitted the effectiveness of her pain medication. Defendant's Motion, at 8. At this time, Dr. Stubbers also prescribed wrist splints for Plaintiffs carpal tunnel syndrome. Plaintiff's Motion, at 4. Plaintiffs physical examination at this time included a full range of motion in all extremities. Defendant's Motion, at 8. In September 2005, Plaintiff again returned to Dr. Stubbers for anxiety, hypertension, hypercholesterolemia, and other complaints. Id. At this time, Dr. Stubbers noted that Plaintiff had flattening of the lumbar lordosis with pain. Id. However, Dr. Stubbers' treatment records do not opine about any functional limitations that Plaintiff may have regarding her ability to work. Id. Plaintiff was given ho recommendations for surgery, nor she undertake physical therapy for her conditions. ALJ's Opinion, at 5. No EMG or NCV studies were performed on Plaintiff. Id. Plaintiff never sought treatment from a specialist physician for her conditions, instead being treated solely by general practitioners. Id. Plaintiff was not referred for mentalhealth treatment and is not presently undergoing such treatment. Id. Plaintiff currently takes nerve pills, but uses no other kind of psychotropic medication. Id. Plaintiff stated that despite her alleged physical and mental impairments, she is still able to engage in a variety of activities, including caring for her personal needs, cooking, doing laundry, washing dishes, paying bills, going shopping, watching television, feeding her dogs, visiting family and friends, and driving. Id. at 6. Plaintiffs medical record was reviewed by Social Security Agency examiners Drs. Humildad Anzures and David Swan, in June and December 2005, respectively. Both examiners concluded that Plaintiff did not have a severe physical impairment as of December 31, 2004, Plaintiffs date last insured. Defendant's Motion, at 11. Moreover, Social Security Agency examiner Dr. Larry Freudenberger reviewed Plaintiffs medical record in November 2005, and concluded that Plaintiff did not have a severe mental impairment by December 31, 2004. Id. There were no other physical or mental residual functional capacity assessments from any other physicians. On December 28, 2006, the ALJ issued an opinion denying Plaintiffs application for disability benefits. The ALJ found that, as of December 31, 2004, Plaintiff had the medically determinable impairments of minimal spurring at L4-L5 and anxiety. ALJ's Opinion, at 3. However, the ALJ found that these impairments did not constitute "severe" impairments, since Plaintiffs impairments did not significantly limit her ability to perform basic work-related activities for twelve consecutive months. Id. at 4. The ALJ observed that Plaintiff had failed to produce objective medical evidence to confirm the alleged severity of her symptoms, or that the objectively determined medical conditions were of such severity that they could give rise to her alleged symptoms. Id. at 5. Therefore, the ALJ concluded that Plaintiff was not under a "disability" within the meaning of the Social Security Act prior to her date last insured of December 31, 2004. Id. at 6. The Social Security Appeals Council denied review of the ALJ's opinion, Commissioner Astrue adopted the opinion, and Plaintiff sought review before this Court. II. Standard of Review When reviewing decisions of the Social Security Agency, the Court is commanded to uphold the Agency decision, "absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record." Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir.2004) (internal quotation marks and citation omitted). Substantial evidence is defined as "more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cutlip v. Sec'y of Health and Human Servs., 25 F.3d 284, 285-86 (6th Cir.1994). The Court is required to defer to the Agency's decision "even if there is substantial evidence in the record that would have supported an opposite conclusion, so long as substantial evidence supports the conclusion reached by the ALJ." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir.2003) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997)). Further, when reviewing the ALJ's decision, the Court cannot review the case de novo, resolve conflicts in the evidence, or decide questions of credibility. Nelson v. Comm'r of Soc. Sec., 195 Fed.Appx. 462, 468 (6th Cir.2006); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984). Where the Commissioner adopts the ALJ's opinion as its own opinion, the Court reviews the ALJ's opinion directly. See Sharp v. Barnhart, 152 Fed.Appx. 503, 506 (6th Cir. 2005). III. Analysis In her challenge to the ALJ's denial of her application for Social Security disability benefits, Plaintiff raises only one argument: the ALJ's decision that Plaintiff has no severe impairments was not supported by substantial evidence of record. As an initial matter, the ALJ determined that Plaintiff's disability insured status expired on December 31, 2004. See ALJ's Opinion, at 1. To be eligible for Social Security disability benefits, therefore, Plaintiff had to prove that she was disabled between May 14, 2004, her alleged onset date, and December 31, 2004, her date last insured. See 42 U.S.C. §§ 416(i)(3), 423(a)(1)(A), 423(c)(1); 20 C.F.R. §§ 404.101, 404.131, 404.315(a); Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir.1990) ("In order to establish entitlement to disability insurance benefits, an individual must establish that he became `disabled' prior to the expiration of his insured status."). If there is substantial evidence to support the ALJ's decision that Plaintiff was disabled between May 14, 2004 and December 31, 2004, the ALJ's decision must be upheld by this Court against Plaintiffs challenge. The Court finds that there is substantial evidence to support this decision. To determine whether a social security claimant is legally disabled, the ALJ must perform a five-step evaluation. The claimant bears the burden of proof for the first four steps, the ALJ bears the burden for the fifth step. First, if the claimant is performing substantial gainful work, she is not disabled. Second, if the claimant is not performing substantial gainful work, her impairment(s) must be considered "severe" before can be considered disabled. Third, it must be determined whether the claimant's impairment is at least as severe as one in the Social Security Act's Listing of Impairments, and is expected to result in death or to last at least twelve months. If so, the claimant is presumed disabled. Fourth, if the claimant's impairment or combination of impairments does not prevent her from doing her past relevant work, she is not disabled. Finally, even if the claimant cannot perform her past relevant work due to her impairments, if other work exists in the national economy in significant numbers that accommodates the claimant's residual functional capacity and vocational factors, she is not disabled. See 20 C.F.R. § 404.1520(a)(4); Kornecky v. Comm'r of Soc. Sec, 167 Fed.Appx. 496, 498-500 (6th Cir.2006). In this case, the ALJ properly performed this step-by-step evaluation of Plaintiffs disability application. After making his finding about Plaintiffs date last insured, the ALJ determined that Plaintiff had not engaged in substantial gainful activity during the relevant time period, from May 14, 2004 to December 31, 2004. ALJ's Opinion, at 3. Next, the ALJ considered the medical evidence of record and concluded that Plaintiff had the medically determinable impairments of minimal spurring at L4-L5 and anxiety. These conclusions are not challenged by the Plaintiff in this action. Finally, the ALJ determined that the aforementioned impairments cannot be considered "severe" within the meaning of the Social Security Act and regulations. "Through the date last insured, the claimant did not have an impairment or combination of impairments that significantly limited her ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant did not have a severe impairment or combination of impairments." Id. at 4. It is this finding with which Plaintiff takes issue, as Plaintiff argues that this determination is not supported by substantial evidence and that the ALJ thus improperly found that Plaintiff does not have a severe impairment or combination of impairments. There is substantial evidence of record to support the ALJ's determination that Plaintiff did not have a severe impairment or combination of impairments during the relevant time period of May 14, 2004 to December 31, 2004. A severe impairment is an impairment which significantly limits a claimant's physical or mental abilities to perform basic work activities. See 20 C.F.R. §§ 404.1520(c), 404.1521(a). Furthermore, "an impairment can be considered not severe only if it is a slight abnormality that minimally affects work ability regardless of age, education, and experience." Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir.1988); Farris v. Sec'y of Health and Human Servs., 773 F.2d 85, 90 (6th Cir.1985). As noted above, to be considered possible grounds for disability, Plaintiff must establish that her impairments were "severe" between May 14, 2004, her amended onset date, and December 31, 2004, her date last insured. Consequently, evidence indicating only that an impairment may have been severe prior to the onset date, but not also indicating that this impairment could still be considered severe on or after this date, does not undermine a finding of no severity. Similarly, evidence indicating only that an impairment may have became severe after the date last insured, but not also indicating that this impairment was severe on or before this date, also does not aid the disability claimant. See Kornecky, 167 Fed.Appx. at 497 ("In order to qualify for SS [social security] benefits, [plaintiff] had to establish that she had a disability on or before her date last insured...."); Wirth v. Comm'r of Soc. Sec., 87 Fed. Appx. 478, 480 (6th Cir.2003) ("Post-expiration evidence must relate back to the claimant's condition prior to the expiration of her date last insured."). Substantial evidence of record indicates that Plaintiffs impairments did not significantly limit her physical and mental abilities to perform basic work activities. Despite the fairly large volume of medical treatment records obtained from various physicians and treatment centers, none of it explicitly indicates that Plaintiffs impairments significantly interfere with her work-related activities. As the ALJ noted in his opinion, Plaintiff has submitted no medical-source opinions from any physician opining that Plaintiffs conditions create any functional limitations that would impede her ability to work. See ALJ's Opinion, at 6. Specifically, no physical or mental residual functional capacity assessments were offered as evidence by the Plaintiff that her impairments are legally "severe." Id. Instead, the only opinion evidence regarding Plaintiffs functional abilities to do work-related activities came from Social Security Agency examining physicians. All of these examiners, after reviewing Plaintiffs medical treatment records, concluded that Plaintiff did not suffer from any severe impairment: Drs. Anzures and Swan opined that Plaintiff did not suffer from a severe physical impairment, and Dr. Freudenberger also opined that Plaintiff had no severe mental impairment[1] Thus, the only medical opinions offered that directly address the severity of Plaintiffs medical impairments clearly undermine the alleged severity of those impairments. It was proper for the ALJ to consider these agency examiners' opinions in his disability determination. The Social Security regulations permit the ALJ to consider the medical opinions of State agency consultants; indeed, they are considered experts in Social Security disability evaluation. 20 C.F.R. § 404.1527(f)(2). It was also proper for the ALJ to place weight on the fact that Plaintiff submitted no medical opinions or statements indicating any functional limitations, "because a lack of physical restrictions constitutes substantial evidence for a finding of nondisability." Longworth v. Comm'r, Soc. Sec. Admin., 402 F.3d 591, 596 (6th Cir. 2005) (quoting Maher v. Sec'y of Health and Human Servs., 898 F.2d 1106, 1109 (6th Cir.1989)). The other evidence of record, like the agency examiner opinions and the lack of conflicting medical opinions, also provides substantial evidence in support of the ALJ's decision. Plaintiff emphasizes that she has been diagnosed with a number of physical and mental ailments by her physicians and other health providers, and has undergone treatment for these problems. She argues that this medical history establishes that fact that she has severe medical impairments. Dr. Bushey diagnosed Plaintiff with scoliosis and carpal tunnel syndrome, treated her for lumbar strain and anxiety, prescribed her various medications, and noted her complaints of back pain and tenderness. Dr. Ducu noted Plaintiff's back pain, anxiety, and other impairments. Butler Health Associates noted Plaintiffs complaints of back, shoulder, and elbow pain, paraspinal spasm, and sinus problems. Clay County Medical Center again diagnosed Plaintiff with scoliosis, as well as lateral-thoracic strain, and also recorded Plaintiffs complaints of neck, back, shoulder, and elbow pain, anxiety, insomnia, and sinus problems. Finally, Dr. Stubbers diagnosed Plaintiff with flattening of the lumbar lordosis, mild scoliosis, spurring change in the spine, and a mild decrease in joint space. Dr. Stubbers also again noted Plaintiffs complaints of back and ear pain, as well as discomfort in the paraspinal muscles. The fact that Plaintiff has been diagnosed and treated for these various conditions, however, does not by itself lead to an inference that Plaintiff has severe impairments under the Social Security Act. "The mere diagnosis ..., of course, says nothing about the severity of the condition." Higgs, 880 F.2d at 863. Rather, Plaintiff has the burden to produce objective medical evidence to prove that these physical and mental conditions caused functional limitations, that is, significantly limited the Plaintiffs physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1520(c). This objective medical evidence consists of signs, symptoms, and laboratory findings, not only by a statement of symptoms. Id. § 404.1508. The Plaintiffs subjective complaints of pain must also be considered in determining whether Plaintiff satisfied this burden of proving severity. However, with regards to these subjective pain complaints, the Plaintiff must show that objective medical evidence confirms the severity of the alleged pain, or that the objectively determined medical condition is of such severity that it can reasonably be expected to give rise to the alleged pain. 20 C.F.R. § 404.1529(b); Bartyzel v. Comm'r of Soc. Sec., 74 Fed.Appx. 515, 525 (6th Cir.2003). The ALJ specifically noted that, in determining whether Plaintiff satisfied her burden of proving severity by objective medical evidence, "I have considered, among other things, [Plaintiff s] allegations of pain and other subjective symptoms, her daily activities, and her use of medication." ALJ's Opinion, at 5. The ALJ ultimately concluded that Plaintiffs medical record, pain allegations, and symptoms, despite the above-listed diagnoses and treatment, did not meet Plaintiffs evidentiary burden regarding the severity of her impairments. Id. There is substantial evidence, documented by the ALJ, to support this determination. Plaintiffs treatment history, as the ALJ noted, was fairly routine and conservative, indicating a lack of severity in her impairments. Id. Plaintiff received no surgery recommendations, physical therapy, or other forms of aggressive treatment for her impairments. Instead, Plaintiff's pain was primarily treated by medication, which she admitted on numerous occasions controls her pain considerably and allows her to function better. Id. Plaintiff denies experiencing any significant side effects from these medications. Id. Beyond the diagnoses listed above, for which Plaintiff was effectively treated by pain medication, Plaintiffs physical examinations were essentially unremarkable, which helps explain why surgery or other advanced medical treatment was never recommended. Id.; Defendant's Motion, at 5-8. Further evidence that the ALJ emphasized also provides clear support for his decision. Plaintiff has never sought treatment from a specialist. Rather, her medical care has always been from general practitioners, none of whom, as discussed, have assessed any functional limitations in Plaintiff due to her impairments. Id. Though Plaintiff has claimed problems with her hand, the evidence did not indicate that EMG or NCV studies were ever performed. Id. Plaintiff claims total disability in part due to her scoliosis, but she has been diagnosed with this impairment since the age of nine. Despite this history of scoliosis since childhood, Plaintiff was still able to maintain employment until 1999, which casts doubt on her allegations of disabling pain. Defendant's Motion, at 5. With regards to the alleged psychological impairments of depression and anxiety, the ALJ determined that there has never been a diagnosis or other objective medical evidence indicating regular complaints of, and treatment for, these impairments. ALJ's Opinion, at 5. Although this observation appears to be contradicted with regards to anxiety, as Plaintiffs treatment records make mention of anxiety complaints, see Defendant's Motion, at 6-8, the ALJ's conclusion regarding Plaintiff's depression complaints appears sound. Moreover, Plaintiff is not undergoing any mental-health treatment for her alleged psychological problems, other than taking medication for her nerves, and has no history of any such treatment. ALJ's Opinion, at 5. Finally, as the ALJ observed, Plaintiff s routine activities and functions are plainly inconsistent with the assertion that she is a totally disabled individual. Despite her alleged inability to engage in any workrelated activities due to her medical impairments, Plaintiff admitted that she is able to care for her personal needs, cook, do laundry, wash dishes, pay her bills, go shopping, watch television, care for her dogs, visit family and friends, and drive. Id. at 6. This admitted ability to engage in such a variety of activities provides further evidence that simultaneously undercuts Plaintiffs claims of severe physical and mental impairments and supports the ALJ's conclusion of nondisability. The ALJ's determination that Plaintiff does not have a "severe" physical or mental impairment, and is therefore not disabled within the meaning of the Social Security Act, is supported by substantial evidence of record. Therefore, the Court must uphold the ALJ's decision, grant Defendant's Motion for Summary Judgment, and deny Plaintiffs Motion for Summary Judgment. WHEREFORE, for the reasons stated above, 1. The Defendant's Motion for Summary Judgment is GRANTED; and 2. The Plaintiffs Motion for Summary Judgment is DENIED. NOTES [1] Plaintiff appears to argue that one of these agency examiner opinions, that of Dr. Swan, should not be entitled to much probative value because of an alleged mistake in its analysis. The opinion reads, "Claimant's allegations only concern impairments that developed after the DLI [date last insured]." Opinion of Dr. Swan, Transcript, at 185. Plaintiff states that this conclusion is in error, since "[Plaintiff's] back problems have existed for many years as further reflected in treatment records submitted at the hearing level." Plaintiff's Motion for, Summary Judgment, at 8. The Court need not decide whether Plaintiff's argument here is correct. Even if Dr. Swan's analysis is flawed, as Plaintiff claims, his analysis on the issue of severity is but one of three. The other two agency examiner opinions reach the same ultimate conclusion that Dr. Swan's does — that Plaintiff did not have a severe impairment, physical or mental, during the relevant time period. These opinions are not rebutted by the conclusions of contrary functional capacity assessments. Therefore, even assuming Plaintiff's argument here is correct, and the ALJ committed error in accepting Dr. Swan's opinion, this error was harmless.

990 F.2d 1377 301 U.S.App.D.C. 107 NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.Eileen G.C. EVANS, Appellant,v.The GEORGE HYMAN CONSTRUCTION COMPANY, et al. No. 92-7055. United States Court of Appeals, District of Columbia Circuit. March 29, 1993. Before: MIKVA, Chief Judge; WILLIAMS and SENTELLE, Circuit Judges. JUDGMENT PER CURIAM. 1 This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. The court has determined that the issues presented occasion no need for a published opinion. See D.C.Cir.Rule 14(c). It is 2 ORDERED AND ADJUDGED that the district court's memorandum and order filed January 31, 1992, be affirmed. Under the circumstances of this case, denial of reconsideration (and therefore leave to amend the complaint) was within the district court's discretion: None of the excuses offered by appellant for her failure to properly allege diversity jurisdiction warranted reconsideration under Federal Rule of Civil Procedure 60(b). See 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice & Procedure § 1489, at 694 (1990) ("a party moving under Rule 60(b) will be successful [in obtaining leave to amend] only if [s]he first demonstrates that the judgment should be set aside for one of the six reasons specified in the rule"). As this court noted in Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792 n. 21 (D.C.Cir.1983), cert. denied, 467 U.S. 1210 (1984): "While we are cognizant that 'defective allegations of jurisdiction may be amended,' 28 U.S.C. § 1653, courts are not obliged to indulge litigants indefinitely, especially when their amendments constitute futile gestures." 3 Upon consideration of the motion for leave to amend the complaint, the oppositions thereto, and the reply, it is 4 FURTHER ORDERED that the motion for leave be dismissed as moot. 5 The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 15.

201 P.3d 1 (2009) STATE v. MILLER. No. 99998. Court of Appeals of Kansas. February 13, 2009. Decision without published opinion. Affirmed.

Filed Washington State Court of Appeals Division Two June 9, 2020 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 51874-1-II Respondent, v. ANDREW FLOYD HIEB, UNPUBLISHED OPINION Appellant. SUTTON, J. — Andrew Floyd Hieb appeals his convictions for two counts of first degree child rape, one count of first degree child molestation, one count of first degree attempted rape of a child, and one count of second degree child molestation. Hieb argues that the State’s arguments during closing were improper and prejudicial, and violated his right to a fair trial. The asserted improper arguments made by the prosecutor included: (1) describing the victim’s testimony by speaking in the first person; (2) arguing that Hieb told the victim that the abuse was her fault; (3) claiming that Hieb’s counsel asked the jury to blame the victim; (4) implying that the victim suffered from a torn hymen; (5) arguing the jury should consider what the victim endured; (6) misstating the burden of proof when she compared reasonable doubt to a jury having confidence in its decision; (7) vouching for the victim’s credibility; and (8) arguing that the justice due Hieb was also due to the victim. Hieb claims that the cumulative effect of these asserted improper arguments violated his right to a fair trial. No. 51874-1-II We agree that the first four arguments were improper. We assume without deciding that the next two arguments were improper but conclude that the trial court’s instruction cured any prejudice. We conclude that the last two arguments were not improper. Our ultimate holding is that none of the arguments standing alone are sufficiently prejudicial to warrant reversal and Hieb fails to show that the cumulative effect of the errors denied him a fair trial. Thus, we affirm the convictions. FACTS I. BACKGROUND The State charged Hieb with one count of first degree rape of a child (count I) and three counts of first degree child molestation (counts II-IV). The State filed an amended information adding one count of second degree child molestation (count V), one count of first degree child molestation (count VI) and amending count III to include the alternative means of first degree attempted rape of a child. At trial, the State’s case was based on the testimony of the victim. Defense counsel argued that there was reasonable doubt because there was evidence that impeached the victim’s testimony, there was no corroborating evidence, and the State failed to adequately investigate the allegations. II. THE VICTIM’S TESTIMONY The victim testified at trial that she knew Hieb her entire life because he was her mother’s childhood friend and lived up the road from their house. The victim saw Hieb five days a week. She would often go to his house for dinner when she was younger. Hieb worked in landscaping and helped the victim’s mother with the house. 2 No. 51874-1-II The victim testified that Hieb sexually abused her repeatedly when she was in elementary school. She gave extremely detailed accounts of each incident. The victim testified that she never reported the abuse because Hieb told her not to and she thought it was her fault. On October 9, 2016, the victim’s mother was informed of an incident involving allegations of improper conduct by Hieb with the victim’s young niece. The victim’s mother asked her if Hieb had ever touched her after learning what had happened to her niece. The victim told her mother that Hieb had been sexually touching her for her entire life. Shortly thereafter, she and her mother called the police. An officer came to their house and the victim spoke with a child forensic interviewer. III. JURY INSTRUCTIONS During trial, the State proposed the standard Washington Pattern Jury Instruction, 4.01, regarding reasonable doubt which includes the “abiding belief” language. Hieb proposed a jury instruction explicitly omitting the “abiding belief” language. The trial court accepted Hieb’s proposed instruction omitting the “abiding belief” to which the State took exception. The State argued, “My understanding is that the court is not allowing the State to use the words ‘abiding belief,’ which I would argue to the court that ‘abiding belief’ is an accurate statement of the law. The State should be allowed to argue that even if the court is going to give the defense[’s] proposed instruction of ‘beyond a reasonable doubt.’” Report of Proceedings (RP) at 976. To which the court responded, “Well, if I was going to give ‘abiding belief,’ then it would be perfectly fine to argue that. Since I’m not, you can’t. You have to argue the law based on the instructions of the court.” RP at 976. 3 No. 51874-1-II The court’s instruction on reasonable doubt stated, A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. Clerk’s Papers (CP) at 46. IV. CLOSING ARGUMENTS A. SPEAKING IN THE FIRST PERSON TO DESCRIBE THE VICTIM’S TESTIMONY The prosecutor began closing arguments as follows: [STATE]: Thank you, Your Honor. “When it happened, I didn’t understand what he was doing to me. I didn’t understand the gravity --” [DEFENSE COUNSEL]: Objection, Your Honor. At this time, counsel is speaking in the first person. She is playing to the prejudice and passions of the jury. This is inappropriate. THE COURT: Overruled. You may proceed. [STATE]: Thank you. “I didn’t understand the gravity of what was happening to me. I trusted him. I didn’t want to make my mom mad. I thought it was my fault.” [DEFENSE COUNSEL]: Objection. THE COURT: Objection is overruled. [STATE]: “He stopped when I told him to stop. He never touched me again.” [The victim] testified and told you that she held on to what the defendant had done to her, kept it to herself for over eight years of sexual abuse. RP at 995-96. B. ARGUMENT THAT HIEB TOLD THE VICTIM THE ABUSE WAS HER FAULT The prosecutor argued the following: [STATE]: Defense counsel make[s] the comments about the shortcomings of the law enforcement investigation. I submit to you that those shortcomings don’t 4 No. 51874-1-II change what happened to [the victim]. [The victim] has been blamed for the defendant’s actions by him telling her that it is her fault. She is the one in trouble. [DEFENSE COUNSEL]: Objection, Your Honor. There is no testimony to support that. Assumes facts not in evidence. THE COURT: The jury will determine what the facts are. They have been advised previously that the lawyer’s remarks, statements, and arguments are not evidence. They determine what the evidence was. RP at 1086 (emphasis added). C. DEFENSE COUNSEL ASKED THE JURY TO BLAME THE VICTIM The prosecutor’s above quoted argument implied that defense counsel was advocating for the jury to blame the victim. D. IMPLYING THAT THE VICTIM SUFFERED FROM A TORN HYMEN In his closing argument, defense counsel argued that there was insufficient evidence because law enforcement failed to conduct additional investigation. The prosecutor argued on rebuttal that there could always be more evidence, but that here, there was enough evidence to convict. The prosecutor argued the following: [STATE]: We have to prove it beyond a reasonable doubt, and we can do that if our witness is credible and you find her credible and you find that she has testified to the elements in this packet and that we have proven it beyond a reasonable doubt. That is how we do it. There is nothing that says we need to corroborate. I would submit to you, as we’ve discussed earlier, these are crimes of secrecy. You are not going to have corroborating evidence. So what if she had a medical exam? That would have been great. It would have been one more box to check off. Who is to say that torn hymen is from the defendant? There is nothing to say that. There’s other ways for those things to happen. It’s not going to be – [DEFENSE COUNSEL]: Objection, Your Honor. Assumes facts not in evidence. 5 No. 51874-1-II THE COURT: Overruled. [STATE]: There is not going to be DNA evidence from the defendant by the time that she goes in and discloses. [DEFENSE COUNSEL]: Objection, Your Honor. Assumes facts not in evidence. THE COURT: Overruled. RP at 1079-80 (emphasis added). E. JURY SHOULD CONSIDER WHAT THE VICTIM ENDURED The prosecutor argued the following: [STATE]: When you look at that [referring to the earlier argument that justice that is due the accused is also due the accuser], you look at what does the victim . . . experience in this? And you consider everything carefully. You consider what she went through and what she was able to tell you. You consider – [DEFENSE COUNSEL]: Again, objection at this time. She is playing to the passions and prejudice of the jury. THE COURT: The jury has been instructed as to what the burden of proof is on the State. I think what counsel is trying to talk about is [the] credibility of the witness. If counsel is trying to talk about that, you should find the defendant guilty because this is difficult for the victim, then that is not correct. That is not what the court’s instructions say. RP at 1083 (emphasis added). F. MISSTATEMENT OF THE LAW REGARDING REASONABLE DOUBT The prosecutor argued the following: [STATE]: Defense counsel is shining the spotlight on law enforcement’s shortcomings or potential shortcomings. [The victim] shouldn’t pay for law enforcement’s potential shortcomings. She told you what happened. She was credible. She told you the truth of what occurred. You are always going to want more. There is no question about that. The question is, if you find the defendant guilty -- and I submit to you that the State has proven beyond a reasonable doubt that he is guilty -- do you have enough to be 6 No. 51874-1-II confident in that decision? If you have enough to be confident in that decision, then we have proven it beyond a reasonable doubt. [DEFENSE COUNSEL]: Objection, Your Honor. That is not the standard. THE COURT: I’m sorry. I didn’t hear the last remark. It didn’t sound like it was inappropriate to me. [STATE]: If you have enough to be confident in that decision – THE COURT: The jury has been instructed as to what the burden of proof is in Instruction No. 2. They should follow that instruction as to the law. RP at 1087 (emphasis added). G. VOUCHING FOR THE VICTIM’S CREDIBILITY The prosecutor argued that the victim was a credible witness as follows: [STATE]: Next thing I want to look at is credibility. The judge went through with you [i]nstruction [number one], which covers credibility. No matter what is said, if anything is misstated, I’m not the judge of credibility. The defense is not the judge of credibility. The detective is not the judge of credibility. The forensic interviewer is not the judge of credibility. The only person that is the judge of credibility is you, the jury. That’s it. You are the sole judges of credibility. You make that determination . . . I submit to you that when you are determining the credibility of [the victim], the State submits, that she was credible. She got up there. She told the truth. She gave you all of the information that she had, all of the information that she could take in. There are two different options here in looking at that. She made it up. She made up these allegations. [DEFENSE COUNSEL]: Again, Your Honor, objection. This is improper argument. THE COURT: Overruled. RP at 1000-02 (emphasis added). 7 No. 51874-1-II H. ARGUING THAT JUSTICE DUE HIEB IS ALSO DUE THE VICTIM The prosecutor argued that the justice due to Hieb is also due to the victim: [STATE]: I submit to you that you don’t have a reasonable doubt. The State has proven this case beyond a reasonable doubt. We can’t take you back in time and have you hover above the room in which they were occurring and allow you to absorb every single act that was occurring at the time. Quite frankly, if we could, no one would sign up to go to jury duty because no one would want to experience that. Just as defense counsel says -- and he makes the comparison to this is worse than murder. I don’t know if it is worse than murder. That is for anybody to decide, but that’s not what these instructions tell you is before you. What is before you is justice that is due the accused is also due the accuser. [DEFENSE COUNSEL]: Objection, Your Honor. That phrase – THE COURT: Proceed. RP at 1082-83 (emphasis added). V. JURY CONVICTION AND GUILTY PLEA A jury found Hieb guilty of two counts of first degree child rape (counts I and IV), one count of first degree child molestation (count II), one count of first degree attempted rape of a child (count III), and one count of second degree child molestation (count V). Hieb appeals his convictions.1 1 Following his convictions, Hieb pleaded guilty to an amended complaint alleging one count of second degree child molestation against the victim’s niece (count VI). This plea and resulting conviction are not the subject of this appeal. 8 No. 51874-1-II ANALYSIS I. STANDARDS OF REVIEW A criminal defendant is entitled to a fair trial. U.S. CONST. amends. VI, XIV, § 1; WASH. CONST. Art. I, §§ 3, 21, 22. To prevail on a claim of prosecutorial misconduct, a defendant must show that the prosecutor’s conduct was both improper and prejudicial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). A prosecutor has “wide latitude to argue reasonable inferences from the evidence, including evidence respecting the credibility of witnesses.” State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011). It is improper for the prosecutor to argue facts that are not in evidence. Glasmann, 175 Wn.2d at 704-05. It is misconduct for a prosecutor to personally vouch for the credibility of a witness. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). However, improper arguments do not necessarily require reversal. “If the defendant objected at trial, the defendant must show that the prosecutor’s misconduct resulted in prejudice that had a substantial likelihood of affecting the jury’s verdict.” State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). We evaluate the effect of a prosecutor’s conduct by examining the conduct in the context of the full trial, the evidence presented, the issues, and the instructions given to the jury. State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011). II. CLOSING ARGUMENTS A. SPEAKING IN THE FIRST PERSON TO DESCRIBE THE VICTIM’S TESTIMONY Hieb argues that the prosecutor’s argument describing the victim’s testimony by speaking in the first person was improper and prejudicial. We hold that the argument was improper, and the court should have sustained the objection, but that it was not prejudicial. 9 No. 51874-1-II Hieb cites to State v. Pierce, 169 Wn. App. 533, 280 P.3d 1158 (2012) to support his argument. In Pierce, the prosecutor constructed an entire conversation which was not supported in the record between the defendant and his victims just before he murdered them. 169 Wn. App. at 543. The prosecutor also created a fictitious internal dialogue the defendant had with himself before deciding to rob and murder his victims. Pierce, 169 Wn. App. at 542. The prosecutor recited this dialogue in a first person narrative during the State’s closing argument. Pierce, 169 Wn. App. at 542-43. We held that these arguments had no basis in the record and improperly requested the jurors to step into both the victim’s and the defendant’s shoes. Pierce, 169 Wn. App. at 555. Here, similarly, the prosecutor assumed the role of the victim and addressed the jury by speaking in the first person. But unlike the arguments in Pierce, the prosecutor’s arguments were not based on a fictional dialogue. However, a prosecutor may not speak in the first person when describing the victim’s testimony. A prosecutor certainly can use the first person when quoting a victim’s trial testimony. But here, although the prosecutor gave the impression she was quoting, in fact she was paraphrasing and used language that the victim did not use. Accordingly, we hold that the prosecutor’s use of the first person to describe the victim’s testimony was improper. However, we hold that the prosecutor’s use of the first person to describe the victim’s testimony was not prejudicial because it did not mischaracterize her testimony and it did not have a substantial likelihood of affecting the verdict. 10 No. 51874-1-II B. ARGUING THAT HIEB TOLD THE VICTIM THE ABUSE WAS HER FAULT Hieb argues that the prosecutor’s argument, that Hieb told the victim the abuse was her fault, was improper and prejudicial because there was no evidence in the record to support this argument. We agree with Hieb that it was improper, but hold that it was not prejudicial. The prosecutor argued, “[The victim] has been blamed for the defendant’s actions by him telling her that it is her fault. She is the one in trouble.” RP at 1086 (emphasis added). But there was no evidence presented at trial that Hieb told the victim that the sexual abuse was her fault. The court should have sustained defense counsel’s objection to the argument. Thus, we hold that the prosecutor’s statement here was improper. However, the prosecutor’s argument did not have a substantial likelihood of affecting the jury’s verdict because the victim otherwise gave detailed accounts of the incidents of abuse. We hold that the argument although improper, was not prejudicial. C. DEFENSE COUNSEL ASKED THE JURY TO BLAME THE VICTIM Hieb argues that the prosecutor’s argument, that defense counsel asked the jury to blame the victim for the abuse, was improper and prejudicial. We agree that the prosecutor’s argument was improper, and the court should have sustained the objection. However, we hold that the argument was not prejudicial. Here, the prosecutor implied that defense counsel was advocating for the jury to blame the victim. Defense counsel objected and without formally ruling on the objection, the court stated, “The jury will determine what the facts are. They have been advised previously that the lawyer’s remarks, statements, and arguments are not evidence. They determine what the evidence was.” 11 No. 51874-1-II RP at 1086. However, the court should have sustained the objection. The court’s curative instruction should have also instructed the jury to disregard the argument. To warrant reversal, a defendant “must show that the prosecutor’s misconduct resulted in prejudice that had a substantial likelihood of affecting the jury’s verdict.” Emery, 174 Wn.2d at 760. Here, the prosecutor’s argument did not have a substantial likelihood of affecting the jury’s verdict because the argument itself was brief and subtle. The court’s curative instruction to the jury also helped to negate any prejudice. Accordingly, the prosecutor’s argument was not prejudicial. D. IMPLYING THAT THE VICTIM SUFFERED A TORN HYMEN Hieb argues that the prosecutor’s argument, implying that the victim suffered a torn hymen, was improper and prejudicial because there is no evidence in the record supporting it. Again, we agree that this argument was improper, but hold that it was not prejudicial. When arguing that corroborating evidence was unnecessary, the prosecutor stated, “Who is to say that torn hymen is from the defendant?” RP at 1080. The prosecutor did not expressly state that the victim had a torn hymen, but she certainly implied that fact. But there was no evidence presented at trial that the victim had suffered a torn hymen. Thus, we agree that the prosecutor’s statement was improper. However, the prosecutor’s statement did not have a substantial likelihood of affecting the jury’s verdict because it was included in a list of other hypothetical pieces of evidence that the jury may have liked to have had, but did not exist. Thus, although the argument was improper, we hold that when considered in context with the entire surrounding argument, it was not prejudicial. 12 No. 51874-1-II E. THE JURY SHOULD CONSIDER WHAT THE VICTIM ENDURED Hieb argues that the prosecutor’s argument, asking that the jury consider what the victim endured, was improper and prejudicial. Assuming without deciding that this argument was improper, the court issued a curative instruction which told the jury that this argument was incorrect. Thus, even assuming without deciding that the argument was improper, we hold that it did not cause prejudice in light of the court’s curative response. Here, the prosecutor, referring to her earlier argument, argued that the justice due to Hieb was also due to the victim, and asked the jury to carefully consider all of the information. The prosecutor argued that “[y]ou consider what she went through and what she was able to tell you.” RP at 1083. Defense counsel objected, and the court responded as follows: The jury has been instructed as to what the burden of proof is on the State. I think what counsel is trying to talk about is the credibility of the witness. If counsel is trying to talk about that, you should find the defendant guilty because this is difficult for the victim, then that is not correct. That is not what the court’s instructions say. RP at 1083. The prosecutor’s statement did not cause prejudice in light of the court’s curative response. Thus, even assuming without deciding that the argument was improper, we hold that Hieb fails to show that it was prejudicial. F. MISSTATEMENT OF THE LAW REGARDING REASONABLE DOUBT Hieb argues that the prosecutor misstated the burden of proof when equating reasonable doubt to the jury’s confidence in its decision. Assuming without deciding that the argument was improper, we hold that it did not cause prejudice in light of the court’s curative response. 13 No. 51874-1-II “‘When a prosecutor compares the reasonable doubt standard to everyday decision making, it improperly minimizes and trivializes the gravity of the standard and the jury’s role.’” State v. Lindsay, 180 Wn.2d 423, 436, 326 P.3d 125 (2014) (quoting State v. Lindsay & Holmes, 171 Wn. App. 808, 828, 288 P.3d 641 (2014)). Here, the prosecutor argued: The question is, if you find the defendant guilty -- and I submit to you that the State has proven beyond a reasonable doubt that he is guilty -- do you have enough to be confident in that decision? If you have enough to be confident in that decision, then we have proven it beyond a reasonable doubt. RP at 1087 (emphasis added). After objection, the court reminded the jury that they had been instructed on the burden of proof. RP at 1087. The court later instructed the jury on reasonable doubt as follows: A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. CP at 46. Even assuming the prosecutor misstated the law on the State’s burden of proof, the court properly gave a curative instruction that reminded the jury to follow the instructions as given, and we presume that a jury follows the court’s instructions. State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007). Therefore, even if the prosecutor’s misstatement of the law was improper, it did not cause prejudice in light of the court’s curative response. G. VOUCHING FOR THE VICTIM’S CREDIBILITY Hieb argues that the prosecutor’s argument, vouching for the victim’s credibility, was improper and prejudicial. Specifically, he argues that “[t]he prosecutor’s comments impermissibly 14 No. 51874-1-II conveyed that she was [the victim’s] personal representative and impermissibly conveyed her personal belief in [the victim’s] credibility” because the prosecutor “told [the] jurors that [the victim] was credible and that ‘[s]he told the truth.’” Br. of Appellant at 12 (quoting RP at 1002). We hold that the prosecutor’s argument regarding the victim’s credibility was not improper because it was prefaced with the phrase “the State submits.” RP at 1001. It is improper for the prosecutor to vouch for a witness’s credibility. Brett, 126 Wn.2d at 175. Here, most significantly, the prosecutor prefaced her argument with the phrase, “the State submits.” The prosecutor then explained that the judge had reviewed the instruction on witness credibility with the jury, but she wanted to remind the jurors that they were the sole judges of witness credibility. We hold that the prosecutor’s argument was not improper because it was prefaced by the phrase, “the State submits.” Thus, Hieb’s claim fails. H. JUSTICE DUE HIEB IS ALSO DUE THE VICTIM Hieb next argues that the prosecutor’s argument, that justice due Hieb is also due to the victim, was improper and prejudicial. We disagree with Hieb and hold that this statement was not improper because it was contextually appropriate. Here, the prosecutor made the following argument: [STATE]: I submit to you that you don’t have a reasonable doubt. The State has proven this case beyond a reasonable doubt. We can’t take you back in time and have you hover above the room in which they were occurring and allow you to absorb every single act that was occurring at the time. Quite frankly, if we could, no one would sign up to go to jury duty because no one would want to experience that. Just as defense counsel says -- and he makes the comparison to this is worse than murder. I don’t know if it is worse than murder. That is for anybody to decide, 15 No. 51874-1-II but that’s not what these instructions tell you is before you. What is before you is justice that is due the accused is also due the accuser. [DEFENSE COUNSEL]: Objection, Your Honor. That phrase – THE COURT: Proceed. RP at 1082-83 (emphasis added). Because the statement was contextually appropriate, we hold that it was not improper, and thus, Hieb’s claim fails. III. CUMULATIVE ERROR DOCTRINE Hieb argues that the cumulative effect of these errors deprived him of a fair trial. We disagree and hold that the errors did not cause cumulative prejudice, and thus, he was not denied a fair trial. Cumulative errors may merit reversal even when each error alone could be considered harmless. In re the Pers. Restraint of Yates, 177 Wn.2d 1, 65-66, 296 P.3d 872 (2013). Courts apply the cumulative error doctrine to cases of repetitive or frequent errors. See Yates, 177 Wn.2d at 65-66. “Under the cumulative error doctrine, a defendant may be entitled to a new trial when cumulative errors produce a trial that is fundamentally unfair.” Emery, 174 Wn.2d at 766. This doctrine does not apply when the defendant fails to establish how the claimed instances of prosecutorial misconduct affected the outcome of the trial. Thorgerson, 172 Wn.2d at 454. The issue is whether the cumulative effect of the prosecutor’s improper arguments, as discussed above, in the context of the full trial, the evidence presented, the issues, and the instructions given, show a substantial likelihood of affecting the jury’s verdict. Emery, 174 Wn.2d at 760. 16 No. 51874-1-II As discussed above, we agree with Hieb that some of the prosecutor’s arguments were improper, including the prosecutor’s use of the first person to describe the victim’s testimony, that Hieb told the victim the abuse was her fault, that Hieb’s counsel asked the jury to blame the victim, and implying that the victim suffered from a torn hymen. Even assuming without deciding that the prosecutor’s others arguments—that the jury should consider what the victim endured and misstating the burden of proof—were also improper, they were not prejudicial in light of the court’s curative response. After determining that these arguments were improper, but not prejudicial, and viewing them in light of the context of the total trial, the evidence, the issues, and the court’s instructions, Hieb must demonstrate how these instances of impropriety substantially affected the outcome of the jury’s verdict. See Emery, 174 Wn.2d at 760. The victim testified about her interactions with Hieb in very specific detail. The jury evaluated the witnesses’ credibility. The court repeatedly reminded the jury to weigh the actual evidence rather than the argument. Additionally, the court reminded the jury that they were to follow the reasonable doubt standard as instructed. Hieb has not explained how the instances of impropriety substantially affected the outcome of the jury’s verdict. Nor has he shown how these errors prejudiced his right to a fair trial. Therefore, we hold that Hieb is not entitled to a new trial under the cumulative error doctrine. 17 No. 51874-1-II CONCLUSION We hold that although some of the State’s closing arguments were improper, the errors did not cumulatively deprive Hieb of his right to a fair trial, and thus, we affirm Hieb’s convictions. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. SUTTON, A.C.J. We concur: MAXA, J. GLASGOW, J. 18 

78 F.3d 577 NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.UNITED STATES, Appellee,v.Hilario MATEO-SALAS, Defendant, Appellant. No. 95-2128. United States Court of Appeals, First Circuit. March 6, 1996. Julio Fontanet Maldonado on brief for appellant. Guillermo Gil, United States Attorney, Miguel A. Pereira, Assistant U.S. Attorney, and Jose A. Quiles Espinosa, Senior Litigation Counsel, on brief for appellee. Before TORRUELLA, Chief Judge, CYR and STAHL, Circuit Judges. PER CURIAM. 1 The judgment is summarily affirmed. Loc. R. 27.1. 2 1. As defendant acknowledges, the court was not bound by the version of facts attached to the plea agreement, U.S.S.G. § 6B1.4(d), or the plea agreement itself. Consequently, the court was free to consider an adjustment under § 2D1.1(b)(1). As defendant has neither argued that such an adjustment was unsupported by the evidence nor furnished a transcript of the evidentiary hearing, we do not consider the matter further. 3 2. Having failed to show that he ever requested a downward departure, defendant may not now premise error on the court's failure to depart. United States v. Field, 39 F.3d 15, 21 (1st Cir.1994), cert. denied, 115 S.Ct. 1806 (1995). 4 Affirmed.

                                                  COURT OF APPEALS                                        SECOND DISTRICT OF TEXAS                                                    FORT WORTH                                             NO. 2-04-106-CV     GROVER C. GIBSON                                                            APPELLANT                                                      V.   LEHOMA JOYCE GIBSON                                                        APPELLEE                                                 ------------              FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY                                                 ------------                                                OPINION                                                 ------------ This is an appeal from the trial court=s property division in a divorce proceeding.  In two points, appellant Grover C. Gibson contends that the trial court erroneously awarded appellee Lehoma Joyce Gibson property owned by a limited partnership in which appellant held a community property partnership interest and that the trial court denied him due course of law by delaying the final division of the marital estate until two years and eight months after trial. Because we conclude that the trial court=s award of the partnership property to appellee constituted reversible error, we reverse and remand in part and affirm in part.  In his first point, appellant contends that the trial court abused its discretion by awarding appellee property owned by GCG Partners, L.P., a limited partnership that appellant and his son Glen formed for investment purposes.  The evidence at trial showed that appellant owned a fifty-percent community property interest in the limited partnership[1] and Glen owned the other fifty-percent interest.  The partnership=s assets consisted mainly of real property worth approximately $373,000 and $15,000 in cash and securities. In its final decree, the trial court awarded the following to appellee: With respect to the limited partnerships [sic] known as GCG Partners, L.L.P. [sic], [appellee] is awarded all of the community interest including the partnership interest in the real estate located at 5900 Lovell, Fort Worth, Texas, including but not limited to the note payable dated December 20, 1993, in the amount of $160,000.00 payable to [appellant] to the parties from GCG, all furniture, fixtures, machinery, equipment, inventory, cash, receivables, accounts, goods, and supplies; all personal property used in connection with the operation of the business; and all rights and privileges, past, present, or future, arising out of or in connection with the operation of GCG Partners.  [Emphasis supplied.]   Thus, the trial court=s order purported to award appellee not only appellant=s community property partnership interest in GCG Partners, but also an interest in specific partnership property.  The trial court also ordered appellant to vacate the building at 5900 Lovell on or before January 9, 2004. The limited partnership agreement of GCG Partners provides that A[a]ll property owned by the [p]artnership . . . shall be deemed to be owned by the [p]artnership as an entity; and no [p]artner, individually, shall have ownership of such property.@  In addition, the Texas Revised Limited Partnership Act (TRLPA) provides that a partner has no interest in specific limited partnership property.[2] Under both the limited partnership agreement and TRLPA, the community interest in GCG Partners was personal property.[3] A trial court may not award specific partnership assets to a nonpartner spouse.[4]  Only a partner=s partnership interestCthe right to receive a share of the profits and surpluses from the partnershipCis subject to division in a divorce proceeding.[5]  Accordingly, the trial court abused its discretion by awarding GCG=s partnership property to appellee. An error of law that causes the rendition of an improper judgment is reversible error.[6]  Divesting a partnership that is not a party to a divorce proceeding of partnership property and awarding that property to a nonpartner spouse is reversible error.[7] Because the trial court committed reversible error when it purported to award GCG=s partnership property to appellee, we must reverse the trial court=s judgment as to the property division and remand the case to the trial court to redivide the parties= community estate.[8]  We affirm the portion of the judgment granting the parties a divorce.     JOHN CAYCE CHIEF JUSTICE   PANEL A:   CAYCE, C.J.; HOLMAN and GARDNER, JJ.   DELIVERED:  March 30, 2006   [1]Appellant=s interest consisted of a one-percent interest as a general partner and a forty-nine percent interest as a limited partner.  [2]Tex. Rev. Civ. Stat. Ann. art. 6132a-1, ' 7.01 (Vernon Supp. 2005). [3]Id. [4]See Lifshutz v. Lifshutz, 61 S.W.3d 511, 518 (Tex. App.CSan Antonio 2001, pet. denied). [5]Young v. Young, 168 S.W.3d 276, 287 (Tex. App.CDallas 2005, no pet.). [6]See Tex. R. App. P. 44.1(a). [7]See Siefkas v. Siefkas, 902 S.W.2d 72, 79-80 (Tex. App.CEl Paso 1995, no writ) (holding that trial court reversibly erred by dividing property that may have been owned by appellant=s professional corporation, which was a separate legal entity and not a party to the proceedings); cf. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex. 1977) (holding that divesting a spouse of separate property is reversible error); Smith v. Smith, 22 S.W.3d 140, 147 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (same).  On rehearing, appellant argues for the first time that the trial court=s erroneous order awarding the partnership property to appellee is void.  Appellant cites no legal authority for this argument.  See Tex. R. App. P. 38.1(h) (requiring appellate arguments to be supported by legal authority).  A trial court=s judgment is void only when the court rendering the judgment had no jurisdiction over the parties, no jurisdiction over the subject matter, no jurisdiction to render the judgment, or no capacity to act as a court.  Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). A judgment based on an erroneous holding of substantive law, including the award of partnership property to a nonpartner spouse in a divorce proceeding, merely renders the judgment voidable, not void.  Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003).   [8]In light of our holding, we need not consider appellant=s second point, in which he complains that the trial court denied him due process of law by delaying the final division of the community estate for two years and eight months after trial.  See Tex. R. App. P. 47.1.

930 F.Supp. 83 (1996) Catherine EVANS, Parent of a disabled child, F.Z., Plaintiff, v. The BOARD OF EDUCATION OF THE RHINEBECK CENTRAL SCHOOL DISTRICT, Defendant. No. 95 CV 10102 (BDP). United States District Court, S.D. New York. June 10, 1996. *84 *85 Rosa Lee Charpentier, Family Advocates Inc., New Paltz, NY, for Plaintiff. Garret L. Silveira, Shaw & Silveira, Highland, NY, for Defendants. MEMORANDUM DECISION AND ORDER PARKER, District Judge. BACKGROUND Plaintiff Catherine Evans commenced this action on behalf of her son, Frank, seeking declaratory and injunctive relief and alleging that defendant Rhinebeck Central School District Board of Education ("the District") violated the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C. § 1400 et seq., and her civil rights under 42 U.S.C. § 1983, by failing to provide Frank with a "free appropriate public education" as *86 required under the Act. On January 29, 1996, the parties appeared before this Court on Evans' motion for a temporary restraining order and preliminary injunction enjoining the District to maintain Frank at his current educational placement, the Kildonan School, pending further proceedings. This Court denied Evans' application for a TRO based on the evidence before it at that time, and ordered the trial on the merits to be advanced and consolidated with the hearing of the application for a preliminary injunction. See Fed.R.Civ.P. 65(a)(2). A hearing on the preliminary injunction application and on the merits was conducted on April 12, 1996. In a decision, dated April 15, 1996, and amended May 6, 1996, the Court granted Evans' motion for a preliminary injunction, enjoining the District to maintain Frank at Kildonan, pending the Court's decision on the merits. This Memorandum Decision and Order constitutes the Court's findings of fact and conclusions of law on the merits. Evans claims various procedural errors by the District in developing Frank's 1994-95 Individual Educational Program ("IEP") and also claims that Frank's 1994-95 IEP did not meet the substantive requirement that it be reasonably calculated to confer educational benefit. The hearing officer found in favor of the District, and the State Review Officer dismissed Evans' appeal. Although the Supreme Court has held that reviewing courts should be cautious in cases questioning the efficacy of a state educational program, see Hendrick Hudson Board of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3050-51, 73 L.Ed.2d 690 (1982), a thorough review of the record here has convinced the Court that the findings and conclusion of the state administrative officers simply do not merit deference. Because this review has indicated that the findings and conclusions of the state administrative officers are largely unsupported, I begin by proceeding through the evidence in some detail. FACTS Frank is a fifteen year old boy of above average intelligence. He suffers from dyslexia, a severe learning disability that hinders his ability to decipher written symbols. Dyslexia has a neurological basis, and although there is no cure, a dyslexic child can learn methods to decipher words. Although Frank was not diagnosed with dyslexia until the summer of 1994, Evans testified that, from the time he entered school, Frank has had problems with spelling, reading and writing. She also testified that he has always experienced anxiety, sometimes accompanied by physical symptoms, in connection with tests. In 1993, Evans enrolled Frank in the District's Buckeley Middle School, where he was placed in a regular education seventh grade class for the 1993-94 school year. Concerned with his difficulty in reading and spelling, Evans referred Frank to the District's Committee on Special Education ("CSE") in November of 1993. He was psychologically and educationally evaluated in December of that year. The school psychologist, Donna Smith, reported that testing showed that Frank had a high IQ. She found that his verbal ability was superior, and that his ability to acquire information through auditory and oral modes was significantly greater than that of his peers. She noted, however, that Frank slowed down while performing visual motor tasks to assure his accuracy. She also found that writing and copying symbols were his weaknesses, but that his writing ability nevertheless appeared to be at age level. In addition, Smith's projective testing revealed that Frank had a negative perception of his abilities in school, physical appearance, and popularity with peers, that he had "needs for security," that "[h]e feels that despite the times he works hard he `does bad' and he `can't get it all right,'" and that he "experiences himself as perceived as `different' by his peers." She recommended that the CSE consider alternate ways of helping Frank obtain information in the classroom, such as having him obtain copies of class notes and teaching him alternative ways of recording information, that he receive remedial help in spelling and a spell-checker, and that his progress be monitored. Interviewed by Smith in November 1993, Evans reported that Frank's self-image was "poor right now due to negative experience in school," that he experienced "mood swings *87 and frustration in regard to school," that he was frustrated with his writing, spelling and reading problem, that "he feels that he is stupid." Using the Woodcock Johnson Achievement Test, the school special education teacher, Roberta Bloomer, performed an educational evaluation. Frank received the following grade equivalent scores: 5.8 in letter-word recognition, and 8.3 in passage comprehension, resulting in 6.5 for broad reading; 8.9 in mathematical calculation, and 10.1 in applied problems, resulting in 9.4 in mathematics; 3.1 in dictation (spelling), and 8.9 in writing samples, resulting in 4.3 for written language. Because of Frank's weaknesses in reading and spelling, Bloomer also gave him the Boder Test of Reading and Spelling, in which Frank reportedly identified words at the 6th and 7th grade level and read on the fifth to sixth grade level, but spelled correctly only 20% of the words given to him. Bloomer noted that Frank spelled phonetically, but did not use non-phonetic spelling patterns. The CSE met on December 10, and considered Frank's psychological and educational evaluations, but, despite what Patricia Zeisler, the chair of the CSE and principal of Buckeley, identified as "a discrepancy between ... the verbal and performance subtest scores, which often [is] associated with a learning disability," it did not classify him as a child with a disability. The CSE notified Evans that it declined to classify Frank because testing results did not indicate the presence of a learning disorder at that time. Instead, Frank received remedial instruction in reading and spelling by Bloomer, and counseling by Smith. Bloomer worked with Frank in the classroom as an inclusion teacher, helped him organize his notebook, and monitored his homework and performance in class. Bloomer also provided individual instruction to him during study periods four times a week plus one or two other 40-minute periods each week, and used glass analysis, an alternative method of word decoding with him. She also worked with him to improve his writing and spelling by using a computer. At Evans' request, counseling was discontinued shortly after it had begun because Frank evidently did not feel comfortable with Smith. On March 22, 1994, the CSE reconvened. Bloomer reported that Frank required more assistance to be successful in the classroom. She told the CSE that he needed help with notetaking, and developing his study and organizational skills, in addition to assistance in improving his reading, spelling and writing skills. Although no additional tests were conducted, the CSE relied upon Bloomer's oral report to recommend that Frank be classified as learning disabled. There was no written report of the basis of that determination. Zeisler testified that the CSE decided to use Frank's spelling deficit as the basis for the classification. His spelling score on the Woodcock Johnson was not reflected in his IEP, however. The CSE further recommended that Frank receive consultant teacher services twice a day with Bloomer, and be permitted to use testing modifications, such as extended time limits, taking tests in alternate locations and giving oral responses to test questions. Frank's IEP included annual goals to improve keyboarding, writing and study skills. According to Bloomer, Frank's testing was modified in all subject areas. He was given multiple choice questions, with short answers. Often Bloomer would read the tests to him so that he could dictate answers. Where longer writing was required, he was permitted to write in phrases, and she would later work with him to produce full sentences. Frank's homework assignments were also modified so that they were shorter. In addition, although it was not reflected in the IEP, Bloomer provided individual instruction for 40-minute periods approximately eight times per week. She worked with Frank in all subject areas, but primarily in writing. Despite these additional services and testing modifications, Frank's performance declined between March and the end of the school year. Frank failed every major academic subject that year. He received a grade of "Unsatisfactory" in language arts, social studies, science *88 and mathematics. Teacher comments on his report card indicate that he had difficulty following classroom procedures, had not completed assignments and was absent a lot. Bloomer testified that Frank did not achieve any of the goals included in the March IEP. In May, increasingly concerned about Frank's academic difficulties and emotional problems, Evans requested that Frank be independently evaluated by a private psychologist. Dr. Howard Susser assessed Frank's cognitive skills using the Wide Range Achievement Test ("WRAT"). Frank received the following grade equivalent scores: 9.8 broad cognitive abilities, 13.6 oral language, 2.3 long term retrieval, 5.7 processing speed, 3.5 auditory processing, 7.8 visual processing, 10.3 knowledge, 16.9 short term memory, and 16.9 fluid reasoning. Frank also received grade equivalent scores of: 4 (beginning) in reading, 2 (end) in spelling, 7 (beginning) in arithmetic. Dr. Susser reported that Frank's reading, decoding and spelling skills were impaired by weaknesses in processing speed, auditory processing and long-term memory retrieval skills, and specifically in sound blending and memory for names, but that Frank's significant strength in reasoning, comprehension, language skills and short-term memory compensated for his weaknesses. He summarized Frank's learning disability as an auditory processing deficit, a long-term retrieval or associative learning deficit and a weakness in processing speeds, which led to difficulties in spelling and decoding. Dr. Susser also reported that emotionally and behaviorally, Frank's most significant problem was internalizing his feelings. Dr. Susser explained that Frank had two significant conflicts, the first being Oedipal, which had led to difficulty in developing independence from his mother, and the second relating to his learning disability. Dr. Susser reported that school learning could have been a route to independence and separation from his mother, but had been blocked by his academic difficulties. Dr. Susser explained that the two conflicts conspired together in such a way that Frank had difficulty in expressing his independence positively. According to Dr. Susser, Frank experienced significant anxiety and depression. Dr. Susser recommended that Frank receive psychotherapy with a male therapist, remedial instruction in reading, writing, and spelling, and possibly use a "spell check" computer program and tape record classes. Dr. Susser also recommended that his teachers should be made to understand that comments on his report card such as "if he only worked harder, he would do better ..." would be counterproductive. The CSE met again on June 14, before Frank's report card came out, and prepared part of Frank's IEP for the 1994-95 school year (the IEP was dated June 1, 1994). Despite Frank's complete failure in seventh grade, the District proposed to promote Frank to the eighth grade and to continue for the 1994-95 school year substantially the same modifications and services that had to date not helped him. The CSE recommended that Frank continue to receive daily individual instruction, but from special education teacher Elizabeth Villanti rather than Bloomer, and concentrating on social studies, rather than writing. The CSE also recommended that he receive the standard services given to all learning disabled students: enrollment in a 12:1 special education class for English and consultant teacher services (in math and science) two periods per day. The CSE also relied upon Dr. Susser's report to prepare a "learning plan," which suggested techniques for Frank's teachers. These techniques included many of the modifications to testing, classwork and homework that Bloomer had already begun, such as providing Frank with class notes, permitting oral responses, shortening homework reading assignments, etc. The goals and objectives of the IEP were formulated at that meeting but were not finalized because the CSE wanted input from Evans, who was not present at the meeting. *89 Unable to contact Evans, however, Villanti wrote the goals herself in August. That summer, Evans enrolled Frank, at her expense, in the summer program of the Kildonan School, a private school for children with dyslexia, which is not on the state-approved list. Students at Kildonan are taught using the principles of the Orton-Gillingham method. According to Margaret Mabie and Diana King, experts in dyslexia and the Orton-Gillingham method, because dyslexics do not learn by having someone simply tell them something, and because they cannot remember, for example, the spelling of a word by simply looking at it, they must learn through a multi-sensory procedure, using multiple sensory systems — visual, auditory and kinesthetic. In the beginning, each letter of the alphabet must be taught to dyslexics through multi-sensory procedures. Because they cannot discriminate between sounds like most people, in order to learn a sound, they must say it, feeling its distinction in their mouths, in association with seeing it written and writing it themselves. The technical rules of a language, learned visually by many people, must also be taught to the dyslexic. For example, the dyslexic must learn that when a word begins with "k" the following vowel is "i," "e" or "y," but that most words beginning with a "k" sound actually begin with "c." Dyslexics do not learn by reading a rule, such as "i" before "e" except after "c" ..., on the blackboard. Nor do they learn by having someone recite them a rule, even repeatedly. Rather, they a rule must be learned through daily multi-sensory drill and practice, until it becomes automatic. In addition, according to Mabie and King, because dyslexics cannot absorb the structure of a language visually or by being told, they must learn it sequentially, starting with small units, such as the order of letters in the alphabet, gradually adding larger pieces, such as learning the spelling of sounds and how syllables are divided, and then proceeding to the rules of sentence structure and idea formation. In addition, because, through Orton-Gillingham, the dyslexic learns progressively, building upon the information that he has mastered, his confidence remains intact. Instructed in accordance with principles of Orton-Gillingham, a dyslexic's skill level remains commensurate with his abilities, and he does not experience the frustration caused by having a wide discrepancy between intellectual ability and academic achievement. What distinguishes a dyslexic student from a low-level functioning, mildly retarded student is that the mildly retarded student may not have the capability to acquire or absorb the knowledge necessary to progress in school, but the dyslexic merely requires a different approach to learning language skills. If a dyslexic is taught language skills in an appropriate manner from the beginning of his education, he can manage effectively in a regular classroom. When Frank arrived at Kildonan, according to King, he had "pathetically weak skills in decoding." Katherine Schantz, the current academic dean and director of admission at the Kildonan School, conducted Frank's initial interview. She discovered that Frank's family had a history of dyslexia, and her pre-testing of Frank led her to the conclusion that Frank was profoundly dyslexic. In June, Schantz conducted the following tests on which Frank received the following grade equivalent scores: 3.8 WRAT-R2 (word identification), 5.1 Gray Oral Reading (reading speed and accuracy), 6.1 Gates-Macginitie Silent Reading Test (Level 5/6 K & L) (vocabulary), 4.1 Gates-Macginitie (reading comprehension), 3.1 Morrison-McCall (spelling), 3.9 IOTA, 7 WRAT-3 (arithmetic). Schantz concluded that Frank's disability was in a very specific subskill of language, namely phonological coding, which manifested itself most profoundly in testing for sound-syllable relationships. Frank's phonological coding disability effected his spelling, his speed in reading, writing and mathematics, as well as his interpretation of reading matter. Schantz also observed that, as is typical of students where there is a wide discrepancy between intellectual potential and skill, Frank was quite frustrated and *90 emotionally fragile. Schantz's primary concern at that time was that Frank did not have access to reading as a way of learning, that is, he was still reading in order to learn to read, but could not use reading as a way to learn. Because of what she characterized as his "cognitive wealth," however, she believed Frank's prognoses was excellent. Frank was assigned a male tutor for the summer and concentrated on three areas: (1) word identification so that he could read more difficult material that would sustain his interest; (2) making his handwriting more automatic because, as Schantz testified, for dyslexics the kinesthetic exercise of writing is essential in establishing sound-syllable relationships; and (3) oral reading in the context of a tutorial to assist him in establishing the speed and automation necessary to become an independent reader. At the end of the summer, in August, Frank was tested again. The testing revealed that he had made considerable progress during the summer in the areas of word identification, reading speed and accuracy, and comprehension. He received the following scores: 8.8 WRAT-R2 (word identification), 7.3 Gray Oral Reading (reading speed and accuracy), 7.3 Gates-Macginitie Silent Reading Test (Level 5/6 K & L) (vocabulary), 9.5 Gates-Macginitie (reading comprehension), 4.7 Morrison-McCall (spelling). Schantz testified that Frank had developed certain systematic ways to attack unfamiliar words, that he had learned a whole system of what types of syllables were in the english language and how to address phonetic issues, that he was reading with greater speed and somewhat greater accuracy near grade level, although not up to his intellectual capacity, and that he could read to learn, instead of merely reading to learn to read. In his academic report, Frank's tutor commented that Frank was a "responsible, and determined student, he completed his assignments regularly.... As the summer progressed, he took increasing pride in his accomplishments, and his interest increased with constant reinforcement and academic variety." The tutor reported that Frank had made outstanding progress in his handwriting, significant progress in phonics, solid gains in spelling and that he had learned to write with more focus, detail, and organization. The tutor recommended that Frank develop a daily reading habit, that he never be penalized for spelling errors, that he should be required to use cursive writing for all written work, that he develop proficiency in keyboarding and word-processing skills, that testing and homework be modified, that he receive instruction from a trained Orton-Gillingham tutor, and that he attend Kildonan for the school year. Over the summer, Evans requested and reiterated her request for an impartial hearing in letters dated July 5 and September 1. A hearing was not scheduled at that time, but Evans met with the District for mediation on three occasions, early in September. The parties have differing perceptions about the outcome of the mediation. Zeisler testified that she believed that the parties had agreed that the District would employ Mabie, an Orton-Gillingham trained instructor, to conduct Frank's individual instruction. Evans testified that she agreed, at Zeisler's suggestion, to have a psychiatric evaluation done by a physician for a diagnosis of dyslexia so that the CSE could make a recommendation to the Board of Education to keep Frank at Kildonan, to have Mabie "screen" Frank to determine his needs, and then to meet with the CSE again to discuss placement. She also testified that the parties agreed that Frank would remain where he was, at Kildonan, until another arrangement could be worked out. Mabie testified that when Zeisler called her, she agreed to meet with Frank and do a quick screening. She never made a commitment to the District, but indicated that she would try to fit him into her schedule. She testified, however, that she agreed to the screening before she knew anything about Frank's background. Ultimately, Mabie never did the screening because she did not have time, but also because she began to "question[] whether an hour a day with me was all this child needed." Mabie felt that Frank was in "very bad shape." "When I saw his *91 background I felt that my one hour a day was just, you know, this much (indicating) and he needed a whole lot more." By this time, however, Evans had enrolled Frank in the Kildonan School for the 1994-95 school year. At Kildonan, Frank continued the tutorial, at a frequency of five times per week for 45 minutes, that was started in the summer. His schedule included prealgebra, preliminary chemistry/physics, American history, literature and studio arts/ceramics, in addition to a proctored study hall and an individual tutorial. Each class was taught by an Orton-Gillingham trained teacher who presented the material using the Orton-Gillingham method. Through the course of a period, the materially was presented both orally and in writing, and assignments were both oral and written. In addition, testing was modified as necessary. Frank was "fast-tracked" with intellectually superior students who were very similar in profile in terms of being dyslexic or dysgraphic, although some did not have Frank's degree of difficulty in reading. Schantz testified that in terms of content, Frank's classes were not modified, but that the volume of independent work was reduced. She observed that his motivation increased noticeably over the year, he was inspired by books that he was reading in his literature class, he was much more engaged, he made friends, he felt challenged intellectually and was responding well, and he was well adjusted and well-liked by his teachers. Kildonan conducted its regular mid-school year battery of tests in February of 1995, on which Frank received the following scores: 8.2 Woodcock-Johnson (letter/word identification), 3.3 Woodcock-Johnson subtest (word attack), 11.3 WIAT (reading comprehension), 4.7 Barnell-Loft (spelling). Schantz explained that Frank exhibited no notable progress on the word attack subtest because it specifically isolated his deficit. Because this deficit is part of his neurological make-up, when isolated, it will remain largely unchanged. Frank's report card for the end of the 1994-95 fall term indicated that his reading had progressed, and that he had a good grasp of pre-algebra. Although he still needed work on writing and sequencing, he was generally doing considerably better in a number of other areas. But, in September of 1994, as Frank began the fall term at Kildonan and the parties grew frustrated with mediation, an impartial hearing was scheduled for the 21st. It was later adjourned with the consent of both parties until October 26. Meanwhile, Evans received a letter notifying her of a CSE meeting on October 4. The letter stated that the purpose of the meeting was to "review placement at Kildonan," and "Program Review (increase or decrease level of services)." On October 4, Evans met with the CSE and requested that the CSE recommend placement at Kildonan. She testified that she was asked to bring along a representative from Kildonan so that placement there could be considered. King, the founder and former director of the Kildonan School, attended the CSE meeting, discussed Frank's participation in the School's summer program, and recommended that Frank attend the Kildonan School as a residential student during the 1994-95 school year. The CSE also considered a letter from Dr. Harold Levinson, who evaluated Frank over the summer, and who opined that Frank had "dyslexia secondary to a cerebellar-vestibular dysfunction." Dr. Levinson recommended that Frank remain at the Kildonan School. The CSE, however, recommended placement in the District's school and amended Frank's IEP for the 1994-95 school year by replacing the individual instruction in social studies with individual, multi-sensory instruction in reading and writing for 60 minutes four days per week with Mabie — as the parties had discussed at their mediation — and inserting counseling for 30 minutes per week by a private psychologist who would consult with the school psychologist twice per week. Annual goals relating to American history and keyboarding were deleted, and new goals relating to mathematics and counseling were added. In describing Frank's current level of functioning, the IEP incorporated two scores, in reading comprehension and vocabulary, from Kildonan's August 1994 testing. *92 Disagreeing with the CSE's placement recommendation, Evans insisted that the hearing scheduled for October 26 proceed. As noted above, following that meeting, Mabie declined to provide the multi-sensory services to Frank. Thus, the District was not in a position to implement its IEP. On October 26, the parties met just prior to the commencement of the impartial hearing. At that meeting, the parties came to an agreement that obviated the need for a hearing. The terms of that agreement are highly disputed, but the result was that the impartial hearing was called off and Frank continued at the Kildonan School at the expense of the District. The parties asked the hearing officer to retain jurisdiction, in the event that there was a subsequent disagreement. On Nov. 7, the District hired a substitute multi-sensory reading and writing instructor, Constance Moore, who was to tutor Frank 40 minutes each day and spend the extra 20 minutes of the hour consulting with Frank's core curriculum teachers. Moore is currently a private tutor. She has a teaching degree in elementary education, and a permanent teaching certificate for kindergarten through sixth grade. She has taught kindergarten, second grade and elementary reading, and at least one highschool boy. She is not certified in either special education or Orton-Gillingham instruction. She taught at the Kildonan school part-time for three years, and full-time for five years, where for less than a year, she was trained in Orton-Gillingham instruction by King. King testified that Moore is not qualified "for work with an adolescent. Under supervision, in a structured supervision she works well with young children.... With an adolescent you have to be prepared to go into the more advanced language skills. You have to be well organized and appropriate in your relationships with an adolescent." King testified that Moore is not qualified in those areas of work required by adolescents. She further testified that Moore is not qualified or competent to instruct, train or otherwise consult with other teachers as to how to work with a specific student under the Orton-Gillingham approach. Sometime after November 14, Evans informed Zeisler that she had spoken with Moore and concluded that she was not qualified to provide Frank with the instruction he required. In a letter, dated December 5, Zeisler informed Evans that the District would no longer be responsible for paying Frank's tuition at the Kildonan School. In response, Evans requested another meeting of the CSE, and in a letter dated January 4, 1995, she requested an impartial hearing. The CSE did not meet until January 19. Thus, it was not until January 19 that Frank's IEP was amended to reflect the changes made after Mabie declined to accept Frank as a student and the parties came to their October agreement that obviated the need for a hearing. On January 19, Evans reiterated that she would pursue the impartial hearing. The District agreed at that time to pay Frank's tuition at the Kildonan School until the hearing officer rendered his decision. The impartial hearing began on February 8 and, after 11 sessions, concluded on June 6. In his decision, dated July 10, the hearing officer found that the current designation of Frank's handicapping condition was "unknown," that the District was reasonable in proceeding cautiously in classifying Frank when he first arrived in the District, that a detailed plan of action for addressing Frank's needs was agreed to after the CSE meeting in June of 1994, that "[t]here is nothing in the record to refute the fact that the school district established an appropriate IEP for [Frank] for 1994-95," that the record indicated that the District had complied with the procedural requirements for preparing Frank's IEP for the 1994-95 school year and that the IEP was reasonably calculated to provide education benefit in the least restrictive environment. He directed the District to put in place immediately a program similar to that outlined in the October 1994 IEP, but also to update it. Evans appealed this decision to the State Review Officer. In a decision dated September 29, 1995, the State Review Officer dismissed the appeal on the grounds that the IEP proposed by the CSE was appropriate *93 and that it was available as of January 19, 1995. Except for a brief period following the District's decision to terminate its tuition payments on December 5, 1994, Frank attended the Kildonan School at the District's expense from October 1994 until December 1995. Evans made two unsuccessful attempts to send Frank to Rhinebeck's high school in January and February of this year, but Frank ran away. Thus, Frank has not attended any school from January through April of this year, when this Court granted Evans' motion for a preliminary injunction. DISCUSSION 1. Legal Standards The IDEA permits an aggrieved parent to bring an action in district court. In reviewing the decision of the state educational agency, [t]he court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. 20 U.S.C. § 1415(e)(2). The role of the reviewing court, however, is circumscribed. Rowley, 458 U.S. at 206, 102 S.Ct. at 3051, cautioned that "the provision that a reviewing court base its decision on the `preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." The Court held that "due weight" must be given to the state administrative proceedings. See Rowley, 458 U.S. at 206, 102 S.Ct. at 3051. In this regard, "[a] number of other courts, including the Second Circuit, have held that the administrative findings in lawsuits brought under the [IDEA] should be accorded some degree of deference." Mavis v. Sobol, 839 F.Supp. 968, 986 (N.D.N.Y.1993) (quoting Hiller v. Board of Educ., 743 F.Supp. 958, 968 (N.D.N.Y.1990)). See Karl v. Board of Educ., 736 F.2d 873, 876-77 (2d Cir.1984). In assessing the appropriateness of the educational program offered by the state, Rowley held that the proper inquiry is two-fold: "First, has the State complied with the procedural requirements set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?" Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3051. As the party challenging the findings of the administrative determination, Evans has the burden of proof. See Hiller v. Board of Educ., 743 F.Supp. 958, 967-68 (N.D.N.Y. 1990). 2. Procedural Requirements Detailed procedural provisions lie at the heart of the IDEA. These processes are designed to guarantee that each handicapped student's education is tailored to his unique needs and abilities. The Act, and the regulations promulgated pursuant to it, contain procedures for determining whether the appropriate placement is regular or special education, for preparing an IEP, for changing the placement or the IEP, and for removing the child from regular education. 20 U.S.C. §§ 1412 & 1415; 34 C.F.R. §§ 300.300 — 300.576. "The Act's procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. Rather, `the formality of the Act's procedures is itself a safeguard against arbitrary or erroneous decisionmaking.'" Daniel R.R. v. State Board of Educ., 874 F.2d 1036, 1041 (5th Cir.1989) (quoting Jackson v. Franklin County School Board, 806 F.2d 623, 630 (5th Cir.1986)). Both Congress and the Supreme Court place great importance on the procedural provisions incorporated into § 1415. See Rowley, 458 U.S. at 205, 102 S.Ct. at 3050 ("the importance Congress attached to these procedural safeguards cannot be gainsaid."). A violation of the Act's procedural guarantees may be a sufficient ground for holding that a school system has failed to provide a free appropriate public education and, thus, has violated the Act. See Daniel, 874 F.2d at 1041. Procedural flaws do not automatically require a finding of a denial of a free appropriate education, but procedural inadequacies that result in the loss of educational opportunity clearly result in the denial *94 of a free appropriate education. See W.G. v. Board of Trustees, 960 F.2d 1479, 1484 (9th Cir.1991) (citing Burke County Board of Educ. v. Denton, 895 F.2d 973, 982 (4th Cir.1990). Evans raises four claims of procedural error: (1) failure to convene an impartial hearing within 45 days of her request on July 7, 1994, in violation of 34 C.F.R. 300.512(a); (2) failure to have a proper IEP ready to implement at the start of the school year, in violation of 34 C.F.R. §§ 300.342; (3) failure to include in the IEP a statement of Frank's present level of educational functioning and strategies to evaluate progress, in violation of 20 U.S.C. § 1401(a)(19) and 34 C.F.R. §§ 300.346(a); and (4) failure, when developing the IEP, to include Frank's classroom teacher in the evaluation team, to conduct a classroom observation of Frank, and to prepare a written report that included a statement of the basis for the determination that Frank was learning disabled, in violation of 34 C.F.R. §§ 300.543, 300.344(a)(1)-(2) & 300.540(a)-(b). I discuss each alleged error in turn.[1] In a letter, dated July 7, 1994, Evans requested an impartial hearing. A hearing was not scheduled, however, until September 21, after the school year had begun. The IDEA's implementing regulation provides that the District "shall ensure that not later than 45 days after the receipt of a request for a hearing ... a final decision is reached in the hearing." 34 C.F.R. § 300.512(a)(1). Although a hearing officer may grant an extension of the 45-day limit at the request of either party, see 34 C.F.R. § 300.512(c), here, a hearing was not even scheduled until 71 days after Evans' request. Instead, the District arranged for mediation of the dispute. The hearing officer made no specific findings or conclusions in connection with this alleged procedural violation. The State Review Officer specifically found that the District had failed to schedule promptly a hearing and found that it had offered no factual basis or legal authority in support of its argument that Evans waived her right to receive a written decision of the hearing officer within 45 days by agreeing to mediation. However, after noting "that both parties bear responsibility for the protracted proceeding which has occurred," the State Review Officer merely admonished the District to "ensure that hearings are commenced promptly after it receives hearing requests." The Act, however, was intended to ensure prompt resolution of disputes regarding appropriate education for disabled children. This includes, of course, the administrative review process. The legislative and administrative concern for prompt final resolution has been reflected in judicial opinions. See e.g. Spiegler v. District of Columbia, 866 F.2d 461, 466-67 (D.D.C.1989). Section 300.512(a) specifically sets forth that it is the District's duty, and not the parent's, to ensure that a timely hearing and decision takes place after the parent requests an impartial hearing of the IEP decision. Thus, I believe that the State Review Officer's admonishment falls short of the mark, but I do not rest my decision on that basis alone. Evans next alleges that the District failed to have a proper IEP ready to implement at the start of the new school year. The hearing officer found that the October 1994 IEP "was determined appropriate upon [Frank]'s arrival in the Rhinebeck School System at that time."[2] The State Review Officer *95 found, however, that there was no dispute that the IEP which the CSE recommended on October 4 could not have been implemented at that time, because Mabie, who was to provide individual tutoring, had declined to provide her services. The State Review Officer found that, although a change in a child's service provider is not normally considered to be a change in a child's program, upon hiring Moore, the District also intended to change the amount of service, which required an amendment to Frank's IEP by the CSE. Thus, the State Review Officer found that the District "did not have an appropriate program" until January 19, 1995 when it amended Frank's IEP, and thus by implication, that the District did not have an appropriate program at the start of the school year. Under the IDEA, the general rule is that placement should be based on an IEP. See 34 C.F.R. § 300.552. The IDEA's implementing regulation provides that [a]t the beginning of each school year, each public agency shall have in effect an IEP for every child with a disability who is receiving special education from that agency.... An IEP must ... [b]e in effect before special education and related services are provided to a child; and ... [b]e implemented as soon as possible following the [CSE] meetings. 34 C.F.R. § 300.342. The note following this provision states that "it is expected that the IEP of a child with a disability will be implemented immediately following the [CSE] meetings." Here, as the State Review Officer found, the District did not have an appropriate program in effect until Frank's IEP was revised in January 1995, four months into the 1994-95 school year. Thus, the District's decision to place Frank at Buckeley at the start of the 1994-95 school year, before it had an IEP in effect on which to base that placement, constitutes a procedural violation of the Act. Cf. Spielberg v. Henrico County Public Schools, 853 F.2d 256, 259 (4th Cir.1988). The third alleged procedural error is the failure to include in the IEP a statement of Frank's present level of educational functioning and strategies to evaluate his progress, in violation of 20 U.S.C. § 1401(a)(19) and 34 C.F.R. §§ 300.346(a)(1), (2) & (5). Under the Act, an IEP must be a written statement of specially designed instruction to meet the unique needs of a handicapped child, which includes: (A) a statement of the present levels of educational performance of such child; (B) a statement of annual goals, including short-term instructional objectives; (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs; (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. 20 U.S.C. § 1401(a)(19); see also 34 C.F.R. §§ 300.346(a)(1), (2) & (5). Frank's October 1994 and January 1995 IEPs listed his IQ test scores, as well as broad reading, broad mathematics, broad written language, and general knowledge scores, from evaluations performed by the CSE in December 1993. In addition, they included two test scores — in reading comprehension and vocabulary — from a test administered at the Kildonan School in August 1994. Based on this information, the State Review Officer found that the IEPs stated Frank's current level of educational performance. (The hearing officer made no specific finding with regard to whether the IEPs set forth Frank's present level of educational functioning.) Both IEPs, however, fail to establish with precision Frank's individual needs. Frank's current level of functioning for reading and writing was presented in a broad score, thereby masking his areas of deficit, according to uncontroverted expert testimony. According to Schantz, who has expertise in the *96 fields of clinical psychology and intellectual, emotional and social testing, the Woodcock Johnson has a subtest in word attack skills, on which Frank, as is typical of dyslexics, scores much lower. The broad, composite score for reading depresses his reading comprehension abilities, which are actually much higher than indicated, but inflates his word attack skills, his area of deficit. As a result, Frank's needs cannot be accurately projected based on a broad score. Neither IEP reveals Frank's scores in spelling or word attack — those areas where his deficit most profoundly manifests itself — in spite of extensive evaluations carried out by Dr. Susser and at Kildonan and which were available to the CSE. There is no indication in the record why only two of the scores from the test administered by Kildonan were included in the IEP, or why those two scores in particular were included. Mabie, the Orton-Gillingham trained instructor hired by the District originally to tutor Frank, who, at her own learning center established ten years ago, educationally evaluates primarily dyslexic students, testified that the testing results reflected in the IEP did not give her the type of information she needed to identify Frank's areas of deficit. As a result, she inquired of the District whether she could do her own testing. She testified that she, found [the IEP] confusing.... [I]n the comprehension they had a score of 9.5. My first reaction was why is this child, he is in ninth grade, why is he having a problem if he is reading at grade level. It didn't make much sense to me. And then it had broad reading, 6.5; written language of 4.3. I didn't see any spelling score at all and it just did not give me enough. I wanted to find out where the difficulty — in other words, I wanted to give him a test so I could find out what his work attack skill was, word identification, word comprehension, passage comprehension. In addition to masking his deficit, most of the scores used to describe Frank's current level of educational functioning were obtained as a result of testing done in December 1993. Thus, the October 1994 IEP essentially described Frank's level of functioning ten months previously and the January 1995 IEP described Frank's level of functioning from the previous year. The District's own witness, Zeisler, even conceded, in connection with the June 1994 IEP which differed from the October 1994 and January 1995 IEPS only in that it did not include the two scores from the Kildonan testing, that the IEP did not reflect Frank's current functioning level, because he was not to be tested again until the fall of 1994. Even if I were to defer to the State Review Officer's finding that the IEP adequately described Frank's current functioning level, notwithstanding the fact that it wholly failed to identify his particular areas of deficit and was based on information that was at least ten months old, I still find that the IEPs did not adequately set forth strategies for evaluating progress, in violation of 20 U.S.C. § 1401(a)(19) and 34 C.F.R. § 300.346(a)(2). The Act's requirement of periodic and individualized assessments of each handicapped child evinces a recognition that children develop quickly and that a placement decision that may have been appropriate a year ago may no longer be appropriate today. Neither the hearing officer nor the State Review Officer made a specific finding in connection with whether Frank's IEP provided adequate short term instructional objectives. Appendix C defines "short term instructional objectives" as "measurable, intermediate steps between a handicapped child's present level of educational performance and the annual goals that are established for the child." 34 C.F.R. ch. 3, App. C, question 39. The objectives are to "serve as milestones for measuring progress toward meeting the [annual] goals." 34 C.F.R. ch. 3, App. C, question 39. They "provide a mechanism for determining ... whether the child is progressing in the special education program ... and whether the placement and services are appropriate to the child's special learning needs. In effect, these requirements provide a way for the child's teacher(s) and parents to be able to track the child's progress in special education." 34 C.F.R. ch. 3, App. C, question 37. *97 The IEPs include only broad, generic objectives and vague, subjective methods for monitoring Frank's progress. For example, the first goal in Frank's October 1994 IEP provided that he would be evaluated on the listed objectives by reference to "teacher observation" and "80% accuracy." With reference to the second goal, the October 1994 IEP provided that Frank would be evaluated by "teacher observation" and "80% success." Although the IEP repeatedly incants these phrases — "teacher observation," "80% success" — because there is little indication of what Frank's level of success was when the IEP was written, it fails to specify strategies for adequately evaluating Frank's academic progress and determining which teaching methods are effective and which need to be revised. Again, Zeisler conceded, with regard to the June 1994 IEP, which used the same mantra to a large extent, that it did not set forth measurable criteria to assess progress. Villanti's testimony is also enlightening on this issue. She had not met Frank when she wrote the goals and objectives that appear on the October 1994 and January 1995 IEPs, but based them on information that she acquired from Bloomer, Smith and Zeisler at the June CSE meeting. Villanti wrote a goal that Frank would increase computation skills in math at the eighth grade level, but testified that she had no idea why he had failed seventh grade math. She wrote a goal for eighth grade physical science, but testified that she did not know whether he had passed seventh grade science or what his functioning level was in physical science. She wrote a goal for spelling, but testified that she did not know what his functioning level in spelling was. She testified that she did not know why there were no goals for the individual instruction in social studies that she was to provide Frank. Finally, she testified that she did not know why the IEP did not reflect the other scores obtained from testing by Kildonan, the fact that Frank failed every subject his seventh grade year, or teacher information. The fourth procedural failure raised by Evans is the District's failure, when developing the 1994-95 IEPs, to include Frank's classroom teacher in the evaluation team, to conduct a classroom observation of Frank, and to prepare a written report that included a statement of the basis for the determination that Frank was learning disabled, in violation of 34 C.F.R. §§ 300.543, 300.344(a)(1)-(2) & 300.540(a)-(b). Neither the hearing officer nor the State Review Officer made specific findings with regard to the fourth alleged procedural violation. The CSE has never prepared a written report that included a statement of the basis for the determination that Frank was learning disabled. Rather, he was classified in March 1994, based upon Bloomer's oral report to the CSE, that Frank required more assistance to be successful in the classroom. The minutes from this CSE meeting are perfunctory. They state only that "Mrs Bloomer reported on individual reading and spelling work. Organized notebook & folder for every subject. Helped him with his Expo 94 project." Although Zeisler testified that the decision to classify was based upon his deficit in spelling, Frank's level of functioning in spelling has never appeared on any IEP. Evans also alleges that Frank's 1994-95 IEPs were not developed with input from his teachers at Kildonan, in violation of 20 U.S.C. § 1401(a)(19) and 34 C.F.R. § 300.344(a)(2). A classroom observation was never conducted at Kildonan, and none of Frank's teachers at Kildonan ever attended a CSE meeting. However, Bloomer, Frank's special education teacher during his seventh grade year, attended the CSE meeting in June 1994, at which Frank's 1994-95 IEP was substantially developed. In addition, King attended the CSE meeting in October 1994, in which the IEP was amended to include some information from the summer program at Kildonan. At that meeting, King discussed Frank's participation in the summer program at Kildonan. Although Frank's 1994-95 IEP could only have been improved by a classroom observation at Kildonan and participation of people knowledgeable about his particular learning disability and his experience in the summer program and at Kildonan itself, in light of Bloomer's participation in the June 1994 meeting and King's participation in the *98 October 1994 meeting, the Court finds that any violation in this regard was not alone sufficient to result in the loss of educational opportunity. When viewed in light of the standards discussed above, the hearing officer's decision that the District met the necessary procedural requirements is unsupported by the facts of record and incorrect as a matter of law. Uncontroverted testimony, for the most part, establishes that the District did not convene an impartial hearing within 45 days of Evans' request and did not have an IEP ready to implement at the start of the school year, did not include in the IEP a statement of Frank's present level of educational functioning, specifically in his areas of deficit, did not include in the IEP a statement of objective strategies to evaluate progress, and did not prepare a written report of the basis for the determination that Frank was learning disabled. The nature and number of these procedural violations support only one conclusion — that Frank was not given the educational opportunity that the procedural requirements of the IDEA were intended to protect. 3. Substantive Requirement A school district is not required to implement a program that will maximize the handicapped child's potential. Rowley, 458 U.S. at 198-99, 102 S.Ct. at 3046-47. Rather, a handicapped child has a right to "personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Rowley, 458 U.S. at 203, 102 S.Ct. at 3049. Rowley explained that [i]mplicit in the congressional purpose of providing access to a `free appropriate public education' is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child.... We therefore conclude that the `basic floor of opportunity' provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. Rowley, 458 U.S. at 200-02, 102 S.Ct. at 3048. The view held by the District and adopted by the hearing officer and the State Review Officer is that Frank's 1994-95 IEP was reasonably calculated to confer educational benefit. Although this Court is required, in recognition of the expertise of the administrative agency, to give some deference to the conclusions of the hearing officer and the State Review Officer, I note first that there is a discrepancy between the findings of the hearing officer and the State Review Officer. While the hearing officer found the IEP of October 4, 1994 appropriate, the State Review Officer found that the District did not have an appropriate IEP available until the October 1994 IEP was amended by the CSE in January 1995. More importantly, however, a comprehensive review of the record reveals that the District's view, and the conclusion of the hearing officer and State Review Officer, are directly contradicted by the testimony of each of the experts on dyslexia. The testimony of the experts on dyslexia clearly establishes that to benefit educationally Frank requires an intensive program of individualized, integrated, multi-sensory, sequential training. Katherine Schantz, a doctoral student at Harvard University in consulting psychology, with professional and clinical experience in therapy and testing of children, and fifteen years experience with learning disabled adolescents, dyslexics in particular, testified that dyslexics are very difficult to teach, particularly those like Frank in whom the discrepancy between intellectual ability and skill is wide. She testified that in order to learn dyslexics need more drilling in all systems — auditory, visual and kinesthetic — and more personal contact than other students. She testified that a severely dyslexic student such as Frank needed specific training in a multi-sensory, sequential approach on a daily basis. She further testified that because Frank is dyslexic, he could learn only through the use of such a method. Schantz expressly denied that anything less than an intensive program of study through a multi-sensory, sequential approach *99 could confer educational benefit. She explained that the danger is that any other approach would not take into account Frank's social and emotional fragility. She testified that dyslexic students, and particularly Frank because of his wide discrepancy between ability and skill, are emotionally fragile and at risk for depression. She stated that particularly severe dyslexics must be carefully schooled so that their self-image progresses, and thus, they benefit greatly from being with other dyslexics for a period of time so that they understand they are not alone in their struggle. Schantz further explained that merely having a trained tutor explain the needs of such students to academic core subject area teachers who are not trained in an appropriate approach, as the District proposed, would not be sufficient because not only would it exacerbate Frank's emotional and social difficulties by singling him out for special attention, but that mere modifications to classwork and homework were not adequate. The presentation of the subject matter had to be done differently. She testified that counseling in such a setting would not assist Frank and that he was not secure enough with his disability to be returned to a mainstream environment. Diana King, who has 45 years of experience in the education of dyslexic students, has founded a school for dyslexics, and has lectured and trained teachers both in the United States and abroad for 40 years, testified that Frank's disability was such that it should have been identified before he entered first grade, and that his years of failure had exacerbated his condition. King testified that it would not be appropriate to return Frank to a regular education classroom, even with a daily 40-minute tutorial by a multi-sensory trained teacher. She stated that to change the program that is currently working for Frank would put him at risk for even more profound educational failure. Margaret Mabie has a bachelor's degree in psychology and master's degrees in special education and administrative supervision, as well as significant graduate hours in teaching techniques, primarily Orton-Gillingham, for dyslexic students. She was an assistant professor for 15 years at the State University College at New Paltz, where she started a special education program. She has also taught reading in middle school and high school, and has had her own learning center for ten years, where she does educational evaluations of mainly dyslexic students, teaches math and trains teachers. She has also taught graduate education classes in language procedures at Columbia University. Mabie has never been employed by the Kildonan School. Mabie testified that Frank does not have the ability to benefit from regular education classes and that a daily 40-minute instruction using a multi-sensory, sequential approach could not meet his needs. She explained that with such a session he could not even begin to address the primary difficulties he experiences in reading, writing or spelling. She testified that even with one hour of service a day, it would be very hard for Frank to participate in the other regular education programs for the rest of the day. In fact, she testified that Frank would be "in deep trouble in high school subjects," going from one teacher to another, even with compensatory help. She stated that it would take a couple years before he would be able to survive in a regular classroom. Mabie further testified that although regular academic subject teachers should be advised as to Frank's difficulties, she explained that there is a "big gap" between telling them what to do and their knowing what to do or how to do it. She explained that the situation is such, that is with the numbers of students regular education teachers have and the demands made upon them, that they are not able to adapt their presentation of subject matter nor able to devote the time needed to a particular student or group of students. For example, she testified, typically a dyslexic student will be given a spell check as a way to address his difficulties with spelling. She explained that a spell check does not work well with dyslexics because in order to use a spell check, one must have some idea of the correct word when given a choice of words. Dyslexics, however, are unable to remember the spelling of a word simply by looking at it. *100 These experts all had the opportunity to review Frank's educational records and/or assess him. According to each one, the program currently proposed by the District to educate Frank is not reasonably calculate to provide him with educational benefit, and in fact may harm him. The concordance of these experts on dyslexia, in conjunction with the record evidence, unmistakably demonstrates the accuracy of their conclusions. Their expert opinion is borne out by the fact that Frank's academic performance showed no improvement and even deteriorated since he began receiving special education at Buckeley. Rowley held that in the regular education system, "[t]he grading and advancement system ... constitute[] an important factor in determining educational benefit." Rowley, 458 U.S. at 203, 102 S.Ct. at 3049; accord Angevine v. Jenkins, 752 F.Supp. 24, 27 (D.D.C.1990). Rowley explained that: the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Rowley, 458 U.S. at 203-04, 102 S.Ct. at 3049. Here, Bloomer testified that despite her intensive individual instruction eight times per week, and homework and classwork modifications, Frank's performance declined. In fact, he failed every major academic subject of his seventh grade year. The only significant service changes incorporated in his 1994-95 IEP — beyond the services that were being provided between March and June of Frank's seventh grade year — were placement in a special education English class and a multi-sensory tutorial. There is no evidence in the record, however, as to the profile of the proposed special education English class, except that provided by the District in response to a request from Evans made in July 1994. Neither the exhibit nor the testimony of the District's witnesses provides any indication of whether Frank and the other students are appropriately grouped in terms of their academic or educational achievement and learning characteristics, and social and emotional development. In fact, the class profile as of July 1994 appears to place Frank with a hearing impaired student and a speech impaired student, as well as two other learning disabled students, whose learning disability is unspecified. Information on the class profile is vital because the capabilities and needs of the other students in the proposed class are relevant factors in determining whether Frank's placement in such a class would benefit him educationally. The record also fails to establish that the multi-sensory tutorial is reasonably calculated to confer some educational benefit on Frank. In addition to the testimony of the experts on dyslexia that Frank will not benefit from a daily 40-minute multi-sensory tutorial, there is compelling evidence that the proposed instructor was not qualified to teach adolescents or to instruct, train or otherwise consult with teachers as to how to work with Frank using the approach he requires. The proposed instructor is neither certified in special education nor in Orton-Gillingham instruction. The person who trained the proposed instructor in Orton-Gillingham testified in no uncertain terms that the proposed instructor was not qualified to work with Frank, nor to consult with his regular education teachers about how to work with Frank. Rowley has explicitly cautioned that the IDEA contemplates meaningful access to a public education: "[i]t would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education." Rowley, 458 U.S. at 200-01, 102 S.Ct. at 3048. Even a showing of minimal improvement on some test results would not compel a finding that an IEP is reasonably calculated to confer some educational benefit. Courts have agreed that "[t]he Act does not permit states to make mere token gestures to accommodate handicapped students; its requirement for modifying and supplementing regular education is broad." Daniel R.R., 874 F.2d at 1048; *101 Hall v. Vance County Board of Educ., 774 F.2d 629, 636 (4th Cir.1985) ("Clearly, Congress did not intend that a school system could discharge its duty under the IDEA by providing a program that produces some minimal academic advancement, no matter how trivial."); Chris D. v. Montgomery County, 753 F.Supp. 922, 931 (M.D.Ala.1990) ("The Act requires a plan of instruction under which educational progress is likely.") The uncontroverted testimony of the experts on dyslexia demonstrates that an integrated, multi-sensory, sequential method is a necessity rather than an optimum situation for Frank, because of the nature and severity of his dyslexia and his associative emotional problems. Thus, in holding that the District's IEP is not reasonably calculated to confer educational benefit on Frank, this Court has not been unfaithful to Rowley's directive that "courts must be careful to avoid imposing their view of preferable education methods upon the States." Rowley, 458 U.S. at 207, 102 S.Ct. at 3051. Evans' claim has not presented a contest of experts in which a court must choose between competent expert testimony presented by opposing parties. While the District presented evidence from experts in special education, none has any specific expertise in the area of Frank's disability.[3] In addition, Schantz's expert opinion as to Frank's emotional fragility, and its impact upon his ability to function in a regular school classroom, is borne out not only by overwhelming evidence in the record below, but by the additional testimony of Dr. Sal Massa presented to this Court at the hearing on April 2, 1996. According to Schantz, Frank made significant progress, both academically and emotionally, at Kildonan because he was schooled in a method that permitted his skill to develop at a level commensurate with his intellectual ability.[4] Dr. Susser's report indicates that Frank has experienced significant emotional conflict, anxiety and depression directly associated with his learning disability. Each of the experts on dyslexia testified that Frank exhibited an incapacitating sense of frustration that is typical in severe dyslexics whose intellectual abilities are significantly greater than their level of achievement. The District terminated its funding of Kildonan following the issuance of the State Review Officer's decision. At the time of the hearing before this Court on April 1-2, 1996, Frank had not attended school since December 1995. Massa, a school psychologist with a Ph.D in Clinical Psychology and considerable experience with learning disabled students, testified that Frank's current emotional problems have effected his academic performance to such an extent that he ought now not to be classified simply as learning disabled, but as multiply handicapped. Based upon meetings with Frank in February and March 1996, and a review of his records, Dr. Massa diagnosed Frank with an adjustment disorder. He testified that an adjustment disorder, by its nature, is specific to a situation. In Frank's case, it is specific to the public school situation, which for him is associated with failure. He has neither adjusted to being out of school nor to the prospect of returning to Buckeley. The testimony and documentary evidence tell a compelling story of a very intelligent, but emotionally vulnerable, child who is at great risk of dropping out of school, despite a demonstrated capacity to succeed academically, *102 socially and emotionally in an appropriate program. The expert testimony establishes that, the nature of Frank's dyslexia in conjunction with his emotional problems, is such that he needs an intensive program of individualized, integrated, multisensory, sequential training with students of similar needs. The IEP proposed for Frank is not such a program, and therefore cannot meet his needs. It does not appear to this Court that either the hearing officer or the State Review Officer considered the testimony of the experts on dyslexia. Because the officers' conclusions are unsupported by the record as a whole and incorrect as a matter of law, they simply does not merit deference.[5]See P.J. v. State of Connecticut, 788 F.Supp. 673, 679 (D.Conn.1992). In addition, given the overwhelming evidence of the significant relationship between Frank's academic performance and his emotional problems, the officers could not have reasonably concluded that Frank's education was not significantly impeded or adversely affected by his emotional difficulties, which are directly associated with his learning disability. While the 1994-95 IEP certainly touches upon some of the necessities for Frank to benefit from an educational program, as the court has already found, it reduces or omits several of the types of services that those who know Frank, and have expertise and experience in his type of learning disability, believe are essential to his benefiting from an educational program. For instance, one such omission involves the presentation of subject matter in a multi-sensory, sequential manner. The failure to use an approach that will provide Frank with the tools to become, for example, an independent reader is alone an important reason why the District's IEP does not provide an appropriate education. Therefore, neither prong of the Rowley test has been met under the facts, and Evans is entitled to relief under 20 U.S.C. § 1415(e)(2). In fashioning remedies for violations of the IDEA, the court is authorized to "grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2). The court's discretion in fashioning relief is broad. Burlington School Committee v. Dept. of Educ., 471 U.S. 359, 369, 105 S.Ct. 1996, 2002, 85 L.Ed.2d 385 (1985). In light of the foregoing, Evans is entitled to a declaratory judgment, and this matter is remanded to the District's CSE with instructions to develop an IEP for Frank which will address his particular needs, consistent with this decision. The District shall make a concerted effort to ensure that Frank attend classes with students who have similar learning disabilities and intellectual abilities, and in which the subject matter is presented from a multi-sensory, sequential approach. Pending the development of such an IEP, Frank shall remain in his current educational placement. The parties shall settle a judgment, including appropriate injunctive relief, on or before June 30 on 10 days notice. Evans is not entitled to relief on her claim under 42 U.S.C. § 1983. While such a claim is not precluded because it is brought simultaneously with a claim under the IDEA, in order to obtain relief under § 1983, a plaintiff must establish that a constitutional *103 violation outside the scope of the IDEA has occurred. See Bonar v. Ambach, 771 F.2d 14, 18 (2d Cir.1985). Such a violation has not been established. SO ORDERED. NOTES [1] The District argues that Evans failed to raise these procedural violations both in her complaint and in the administrative proceedings below. The complaint, however, states a claim for procedural violations of the IDEA. The complaint need not set forth the plaintiff's theory of recovery. Evans also discussed each alleged violation in her pre-trial brief so that the District was free to adduce evidence or supplement the record at the hearing before this Court. In addition, a litigant is generally free to amend a complaint to conform with the evidence at any time during the proceedings. See Federal Rules of Civil Procedure 15(b). Finally, this Court finds that, although the hearing officer did not make specific findings in regard to some of the alleged procedural violations, the record reveals that the alleged violations were repeatedly raised below. [2] Frank entered the Rhinebeck School System in October of 1993. This finding about the October 1994 IEP is mentioned first in the hearing officer's chronological march through the evidence. The language of the hearing officer's finding — "upon [Frank]'s arrival in the Rhinebeck School System" — and its erroneous placement in the chronology leads this Court to the conclusion that the hearing officer was confused about when the October 1994 IEP was developed and implemented. [3] The District presented testimony from two of its special education teachers. Although both have masters degrees in special education or learning disabilities, neither has any apparent expertise in dyslexia. The District also presented testimony from the school psychologist, who has a master's degree in school psychology, but no apparent expertise in dyslexia. Finally, Zeisler has a master's degree in reading problems and a Ph.D in organizational structures in connection with special education decision-making. While Zeisler has considerable experience with education of the learning disabled, she also has no apparent expertise in the education of dyslexics. [4] My reference to Frank's progress at Kildonan is not inconsistent with the IDEA's "reasonably calculated to confer educational benefit" standard. I am mindful of the fact that a district court is not to decide which program offers the greatest benefits to a child, but whether the program offered to the child by the District enables him to receive educational benefits. The fact that Frank made good progress at Kildonan is merely an indication that that type of program was appropriate and effective. [5] Frank's poor record of attendance and timeliness appeared to play a significant role in the decision of the hearing officer. Frank was absent 29 days (10 of which were unexcused) and late 44 days (all of which were unexcused) during his seventh grade year. Although the problem with tardiness appears to have been solved by his taking a bus to school when he attended Kildonan, his poor attendance appears to have continued. Although, in light of all the evidence, this Court cannot reasonably conclude that Frank's absences were the cause of his inability to learn in the program proposed by the District, as even Smith, the District's own witness, testified that it became apparent that "it wasn't his lack of attendance" that caused him to be unable to pick up on material introduced to him in class, it nevertheless considers Frank's poor attendance record to be a very serious matter. Almost every teacher that Frank had at Buckeley and Kildonan have commented in various reports that his absences have affected his performance. Like the hearing officer, this Court believes that "[t]his child needs every advantage possible to help him succeed and ... need [not] be caught in this dilemma." That it would do little good for Congress to spend millions of dollars in providing access to a public education only to have it squandered at the whim of a parent who takes a child on vacation while school is in session is a natural corollary to Rowley's caveat that the IDEA contemplates meaningful access to a public education. Rowley, 458 U.S. at 200-01, 102 S.Ct. at 3047-48.

893 F.2d 1502 58 USLW 2446 UNITED STATES of America, Plaintiff-Appellee,v.William M. CARROLL, Defendant-Appellant. No. 88-2260. United States Court of Appeals,Sixth Circuit. Argued July 31, 1989.Decided Jan. 9, 1990. David Debold, argued, Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee. Jill L. Price, argued, Federal Public Defenders Office, Detroit, Mich., for defendant-appellant. Before KRUPANSKY and RYAN, Circuit Judges, and WILHOIT, District Judge.* RYAN, Circuit Judge. 1 This sentence guidelines appeal presents a meritorious assignment of error. 2 Because we conclude that the sentencing court erred as a matter of law in selecting the numerical value corresponding to the defendant's "role" in the offense in this case, and as a result necessarily came to a mistaken mathematical conclusion about the appropriate sentence guidelines range, we vacate the sentence and remand the case for resentencing. I. 3 Before turning to the four meritless and one meritorious issues in this appeal, we should like to say a word, in dicta to be sure, about the ever increasing volume of sentence guidelines appeals being filed in this circuit, and presumably in others. 4 This is one in an ever increasing number of such appeals in which the principal thrust of the appeal is to attempt to persuade this court to second guess the sentencing judge's findings about the nature of the defendant's role in the offense, or his attitude about his guilt, or his criminal justice history; and sometimes, as in this case, all three. 5 This appeal is unusual in that it presents a meritorious assignment of error. In most of these appeals the sentenced offender is the appellant and his sole appellate purpose is obvious: to obtain a more lenient sentence than was imposed by the district court. When the government is the appellant, as it is with increasing frequency, its purpose, ordinarily, is to obtain a more severe sentence. 6 The usual request in these appeals is that we substitute our own findings of fact for those of the sentencing court and then recompute the "correct" sentence guideline range by introducing into the convoluted arithmetical sentencing guidelines formula different numerical values for the defendant's role in the offense, his attitude, and his criminal history than the sentencing court, and usually the probation department, thought to be appropriate. To characterize this use of the resources of the United States Court of Appeals as imprudent is a very considerable understatement. 7 As the burgeoning volume of these sentence guidelines appeals begins to bloat the dockets of all the courts of appeals, we are necessarily spending more and more time doing nothing more than responding to appellants' pleas that we disagree with the factual determinations of sentencing judges and correct their mathematical computations. In the vast majority of these cases, although not this particular one, after careful and exhaustive examination of the sentencing court's findings of facts and its arithmetical computations, our appellate scrutiny results in a conclusion, even where some minor mathematical mistake is identified, that the correct sentence range is exactly as determined by the sentencing court. Part of the price that is paid for this kind of appellate drill is the unwarranted consumption of considerable time and energy that should be devoted to study, research, decision making, and opinion writing in an accumulating backlog of cases involving hundreds of jurisprudentially significant questions of state, federal, and constitutional law--functions for which the United States court of appeals was created. 8 It is not too late for Congress to reconsider whether the time and resources the courts of appeals are devoting to reviewing these sentence guideline cases, particularly in view of the essentially clerical nature of the current review function, can be better spent without sacrificing a sentenced defendant's entitlement to appropriate appellate review of the sentence imposed. 9 Meanwhile, we shall continue to undertake, as we have in this case, a detailed analysis of the correct application of the guidelines to the facts of individual cases in the hope that doing so will contribute to an early accumulation of a body of appellate precedent on the subject, looking to the day when most district court findings of fact and arithmetical computations in sentence guideline cases can be double checked without the full blown court of appeals briefing, oral argument, and opinion writing that should be reserved for jurisprudentially weightier matters. II. 10 Appellant William M. Carroll attempted to escape from a federal correctional institute, pleaded guilty to doing so, was convicted and sentenced, and now appeals the district court's interpretation of the sentencing guidelines and the measure of proof by which the court required the government to prove the facts relied upon to compute the correct sentencing guidelines range. 11 Appellant argues that the district court erred in the following matters: 12 --Not requiring the government to prove by clear and convincing evidence the facts upon which it urged the district court to rely in determining the correct sentencing guidelines' values. 13 --Increasing appellant's base offense level by two levels for being an "organizer or leader." 14 --Increasing appellant's criminal history score by two points for committing an offense while under a criminal justice sentence. 15 --Increasing appellant's criminal history by two points for committing an offense within two years after release from custody. 16 --Denying appellant a two level reduction for acceptance of responsibility. 17 We agree with appellant that, as a matter of law, his base offense level could not be increased by two points on the theory that he was an organizer or leader under the "role in the offense" guideline. The remaining assignments of error are without merit, but because of the "role in the offense" miscalculation, the sentence is vacated and the matter is remanded to the district court for resentencing. III. 18 Carroll was serving a fifteen-year sentence for manufacturing counterfeit currency when, in February 1988, he asked another inmate whether the inmate knew anyone on the outside who could help Carroll escape from the Federal Correctional Institute in Milan, Michigan. The inmate promptly alerted prison authorities who instructed the inmate to put Carroll in touch with an undercover FBI agent outside the prison who would pose as a helicopter pilot for hire. 19 Carroll telephoned the agent six times. He also wrote several letters in which he detailed his escape plans in "invisible ink" (lemon juice). Carroll planned to pay the agent and his helpers with $1,000,000 in counterfeit currency that he would then launder by purchasing cocaine from "a couple of Venezuelan brothers." Carroll offered the agent an extra $250,000 if he could recruit one more assistant and indicated a willingness to pay an additional one million counterfeit dollars for the life of the "bastard who got me this 15 years." In a later letter to the agent, Carroll identified that person, but told the agent to wait about six months so that the two could review details and defuse suspicion. 20 Carroll admitted that at the time scheduled for the escape, he was waiting for the helicopter in the designated place, was wearing predetermined clothing, and was signaling the pilot where to land. 21 Carroll was charged in a complaint with attempted escape, 18 U.S.C. Sec. 751, and solicitation to commit murder, 18 U.S.C. Sec. 13, relying, pursuant to the Assimilative Crimes Act, on Mich.Comp.Laws Sec. 750.157b (1989). He pleaded guilty and was scheduled for sentencing on December 14, 1988. As required by local court rule, appellant filed written objections to the calculation of his sentencing guidelines and renewed those objections orally at the time of his sentence. He makes the same arguments on appeal that he made below. 22 At sentencing, Carroll did not dispute the initial determination that Guideline Sec. 2P1.1(a) assigns a base level of thirteen to his offense; nor did he seriously dispute the court's finding that he initiated and planned the escape attempt. Rather, Carroll objected to the government's argument that he deserved a two point base level increase, pursuant to Sec. 3B1.1(c), due to his "aggravating role" in the escape attempt. Carroll maintained that because he was the only criminally responsible person alleged to have been involved in the offense, he could not rationally be treated as an "organizer or manager" within the language and intent of the applicable guideline--regardless of whether he planned the escape--because the escape involved no other "participants" as defined in the guidelines. Carroll asserted that in this case he only organized himself and the guideline does not permit enhancement in such a situation. 23 Carroll also objected to the government's request to add two points to his criminal history score for having committed an offense while under a criminal justice sentence, and one point for commission of an offense within two years after release from custody. He argued that because a defendant cannot commit the offense of escape unless he is under a criminal justice sentence, the two point addition to the criminal history score mandated by Sec. 4A1.1(d) is inappropriate in escape cases. Carroll further argued that the commission of his offense prior to his release from custody renders Sec. 4A1.1(e) inapplicable. 24 Finally, Carroll argued that he was entitled to the two level "acceptance of responsibility" reduction. 25 The sentencing court accepted the government's position on every guideline issue. The court began the sentencing computation by applying a base offense level of thirteen. U.S.S.G. Sec. 2P1.1(a)(1). In apparent reliance on the agent's affidavit that Carroll initiated the attempted escape, the district court increased the base by two levels due to Carroll's aggravating role in the offense, pursuant to Sec. 3B.1. (c), for a total offense level of fifteen. The court determined Carroll's criminal history category to be Five, based on twelve criminal history points, and gave Carroll no credit, pursuant to Sec. 3E1.1, for "acceptance of responsibility." As a result of the various enhancements, the guidelines indicated that Carroll's sentence should range from thirty-seven to forty-six months. The court imposed a sentence of forty months to run consecutive to Carroll's previous counterfeiting sentence, followed by three years' supervised release. IV. A. 26 Appellate review of sentences imposed under the guidelines is set forth at 18 U.S.C. Sec. 3742 (1989), which provides in pertinent part: 27 (e) Consideration.--Upon review of the record, the court of appeals shall determine whether the sentence-- 28 (1) was imposed in violation of law;(2) was imposed as a result of an incorrect application of the sentencing guidelines; 29 .... 30 The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts. 31 (f) Decision and disposition.--If the court of appeals determines that the sentence-- 32 (1) was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate.... 33 Under the "due deference" standard of 18 U.S.C. Sec. 3742(e), the appellate review standard varies depending on whether an issue is factual, legal, or mixed. United States v. Ortiz, 878 F.2d 125 (3d Cir.1989). B. 34 Carroll first claims that the district court erred in not requiring the government to prove by clear and convincing evidence those facts upon which the court should rely in determining the sentence pursuant to the guidelines.1 We disagree. 35 As the Fourth Circuit recently noted in United States v. Urrego-Linares, 879 F.2d 1234 (4th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989), other courts examining the standard of proof required by the guidelines "have generally agreed that a preponderance standard is the proper measure." See, e.g., United States v. Lovell, 715 F.Supp. 854 (W.D.Tenn.1989); United States v. Dolan, 701 F.Supp. 138, 140 (E.D.Tenn.1988); United States v. Silverman, 692 F.Supp. 788, 791 (S.D.Ohio 1988). Moreover, although McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2418, 91 L.Ed.2d 67 (1986), was a pre-guidelines case, McMillan's due process analysis applies with equal force to federal courts. See United States v. Lee, 818 F.2d 1052, 1057 (2d Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376 (1987); United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir.1988). In McMillan, the Supreme Court rejected a contention that a sentencing court must apply a clear and convincing standard to factual findings relevant to sentencing determinations. The McMillan Court concluded that Pennsylvania's statutory requirement of proof by a preponderance satisfied due process, noting that "[s]entencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all." 477 U.S. at 91, 106 S.Ct. at 2419. 36 While the precise question whether the Constitution mandates proof of facts by at least a preponderance standard was not before the McMillan Court and is not before us, we certainly think the trial court's application of that standard here suffices. We discern no reason to accept appellant's claim that the advent of a new sentencing system requires application of a standard higher than that accepted in McMillan. C. 37 We turn next to Carroll's claim that the trial court erred by adding two points to the base level for his offense pursuant to Sec. 3B1.1(c). Carroll argues that guideline Sec. 3B1.1 applies to organizers or leaders involved in "organizational crime" and that enhancement was improper in this case because he was the sole defendant alleged to have participated in this offense. 38 It is necessary for an adequate understanding of Carroll's argument and a resolution of the issue to burden our opinion by setting forth, in full, the relevant guidelines and related commentary: PART B--ROLE IN THE OFFENSE Introductory Commentary 39 The Part provides adjustments to the offense level based upon the role the defendant played in committing the offense. When an offense is committed by more than one participant, Sec. 3B.1 or 3B.2 (or neither) may apply. Section 3B1.3 may apply to offenses committed by any number of participants. Sec. 3B1.1 Aggravating Role 40 Based on the defendant's role in the offense, increase the offense level as follows: 41 (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. 42 (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. 43 (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. Commentary Application Notes: 44 1. A "participant" is a person who is criminally responsible for the commission of the offense, but need not have been convicted. 45 .... 46 3. ... This adjustment does not apply to a defendant who merely suggests committing the offense. 47 .... 48 Sec. 3B1.4 In any other case, no adjustment is made for role in the offense. Commentary 49 Many offenses are committed by a single individual or by individuals of roughly equal culpability so that none of them will receive an adjustment under this Part. 50 The introductory commentary to the "Role in the Offense" enhancement provision states that Sec. 3B1.1 may apply "when an offense is committed by more than one participant." The commentary to the same section defines "participant" as any "person who is criminally responsible for commission of the offense" with which the defendant has been charged. Because Carroll only "organized" law enforcement authorities--persons who could not have been "criminally responsible"--it is undisputed that Carroll's crime involved only one offender and, therefore, no criminal organization or enterprise. 51 The government maintains that enhancement was appropriate because the commentary referring to, and apparently requiring, "participants" is merely equivalent to legislative history that should be ignored when the plain language of the guideline is clear. See Sec. 1B1.7, Comment.; McBarron v. S & T Industries, Inc., 771 F.2d 94, 97 (6th Cir.1985). The government argues that although 52 the word "participants" is explicitly used in the two previous subsections, ... in the subsection in question, the term "any criminal activity other than described [in the two previous sections]" is substituted. Thus, no magic number of "participants" need be proven, by the plain language of the guideline. The Introductory Commentary does not state that the Aggravating Role adjustments (Sec. 3B1.1) apply only to offenses committed by more than one participant. It merely provides a general rule--an overview or "Introduction" to the entire chapter; it is not tailored to the specific and peculiar situation presented in this case where the defendant unwittingly attempts to organize the non-culpable. 53 In further support of its reading of the guideline, the government asserts the following:The purposes behind an "organizer or leader" adjustment include punishing more severely those who are more likely to profit and those who, by virtue of their willingness to lead, "present a greater danger to the public and/or are more likely to recidivate." Sec. 3B1.1, Commentary (Background). These purposes are just as applicable when the defendant unwittingly tries to organize and lead non-criminals. In short, this defendant should be subject to the same sentencing range as a defendant who, by luck, picks a fellow inmate who is willing to break the law and who hires a real pilot on the outside who will jump at the chance to make two million dollars in counterfeit currency that can be laundered through drug deals. 54 Our review of this guidelines construction issue is plenary. United States v. Ofchinick, 877 F.2d 251, 256 (3d Cir.1989); 18 U.S.C. Sec. 3742(f)(1). 55 We disagree with both the government's reading of the guideline and its characterization of Carroll as a leader. With respect to the government's argument that the "participants" requirement should be treated as superfluous legislative history creating an ambiguity in an otherwise clear statute, we note that, unlike traditional legislative history which is often written by legislative staff and not subject to congressional vote, the commentary here accompanies and is printed between the various guideline provisions in the Guidelines Manual, an official publication of the United States Sentencing Commission. Furthermore, the government's authority for treating commentary as legislative history is actually found in the commentary to another guideline whose language indicates that the commentary has greater significance than the government recognizes. That introductory guideline and its commentary states: Sec. 1B1.7 Significance of Commentary 56 The Commentary that accompanies the guideline sections may serve a number of purposes. First, it may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal. See 18 U.S.C. Sec. 3742. 57 .... Commentary 58 Portions of this document not labeled as guidelines or commentary also express the policy of the Commission or provide guidance as to the interpretation and application of the guidelines. These are to be construed as commentary and thus have the force of policy statements. 59 In stating that failure to follow certain commentary "could constitute an incorrect application of the guidelines," the Commission simply means that in seeking to understand the meaning of the guidelines courts likely will look to the commentary for guidance as an indication of the intent of those who wrote them. In such instances, the courts will treat the commentary much like legislative history or other legal material that helps determine the intent of the drafter. 60 It is disingenuous for the government to cite the commentary as support for its argument that we should ignore the commentary. 61 While we recognize and accept the government's argument that one of the purposes of this enhancement section is to punish more severely those who, like Carroll, are "willing to lead," the background to Sec. 3B1.1, from which the government also selectively quotes, indicates that leadership of culpable individuals is necessary. The background explains that "[t]his section provides a range of adjustments to increase the offense level based upon the size of a criminal organization (i.e., the number of participants in the offense) and the degree to which the defendant was responsible for committing the offense." U.S.S.G. Sec. 3B1.1, Comment, (backg'd.) (emphasis added). The government ignores the underscored conjunction and, therefore, the first half of the sentence. The government also fails to address those portions of the commentary to Sec. 3B1.1 indicating the following: 62 This adjustment does not apply to a defendant who merely suggests committing the offense. 63 .... 64 In relatively small criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility. This is reflected in the inclusiveness of Sec. 3B1.1(c). 65 While Carroll may have suggested a prison escape, the government, unbeknownst to Carroll, had actually taken over and was actually organizing the operation.2 Just as the government cannot claim that a defendant conspired with a government agent because "proof of an agreement between a defendant and a government agent or informer will not support a conspiracy," United States v. Pennell, 737 F.2d 521, 536 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985), the government cannot claim that Carroll was leading or organizing government agents. When read in context, the language of the guideline indicates that its drafters did not seek to provide "supervisory" enhancement in a case such as this. Rather, like conspiracy, this guideline requires that a defendant engage in criminal activity with at least one other criminally culpable person. To accept the government's argument that Sec. 3B1.1(c) should be read exclusive of the commentary would permit enhancement where a single offender engaged in what could be considered an "otherwise extensive" criminal activity by the mere fact that the activity involved use of the services of several innocent people. We hold that enhancement pursuant to Sec. 3B1.1 requires the participation of at least two culpable individuals so that leadership of some criminal enterprise or organization, however minimal, can be claimed. D. 66 Appellant next challenges the increase of his criminal history score by two points for the "commission of the instant offense while under any criminal justice sentence," Sec. 4A1.1(d), and by one point for the "commission of the instant offense less than two years after the release from imprisonment," Sec. 4A1.1. (e). Those sections provide in pertinent part: 67 CHAPTER FOUR--CRIMINAL HISTORY AND CRIMINAL LIVELIHOOD PART A--CRIMINAL HISTORY 68 .... Sec. 4A1.1 Criminal History Category 69 The total points from items (a) through (e) determine the criminal history category in the Sentencing Table in Chapter Five, Part A. 70 (a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month. 71 (b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a). 72 (c) Add 1 point for each prior sentence not included in (a) or (b), up to a total of 4 points for this item. 73 (d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. 74 (e) Add 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b). If 2 points are added for item (d), add only 1 point for this item. 75 Carroll maintains that because he was charged with escape, the base offense level implicitly included punishment for an offense committed while under sentence since, by definition, one cannot escape unless one is under a criminal justice sentence. Carroll argues that the additional two point increase is a double punishment. 76 In calculating Carroll's criminal history points, the probation department report relied on the language of the enhancing guideline and on the answer to Question 22 of the Sentencing Commission's "Questions Most Frequently Asked About The Sentencing Guidelines," issued on May 5, 1988. In that publication, the Commission stated that in drafting the guidelines the Commission intended that courts would impose two criminal history points for Sec. 4A1.1(d) and one point for Sec. 4A1.1(e) when sentencing escape offenders.3 The trial court adopted the probation department's calculation of the criminal history score, noting reliance on the Sentencing Commission's commentary. 77 In agreement with the Third and Tenth Circuits, we note that the language of Guideline Sec. 4A1.1 does not support a different result. See United States v. Ofchinick, 877 F.2d 251 (3d Cir.1989) (defendant convicted of escape from custody may receive criminal history enhancement under Guideline Secs. 4A1.1(d) and (e) for escaping while under a sentence of imprisonment and while still in confinement, even though being in custody is an element of the offense); United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989) (affirming use of Guideline Sec. 4A1.1(d) to add two points to criminal history score of defendant convicted of escape). But see United States v. Clark, 711 F.Supp. 736 (S.D.N.Y.1989) (such use constitutes double counting); United States v. Bell, 716 F.Supp. 1207 (Minn.1989) (same holding). 78 The language of Sec. 4A1.1(d) indicates that that provision applies to all offenses committed while imprisoned. The commentary to the guidelines often cautions against double counting in particular areas, but fails to indicate that adding three points here would violate that principle. Because the language of the guidelines fails to support his argument, Carroll claims that it was never the Commission's intent to enhance the base offense level for escape. But as the sentencing court recognized, the Sentencing Commission's answer to this specific question disproves Carroll's argument that the Commission intended, through the assignment of a base level of thirteen, to account for the fact that the offense was committed while under a sentence. Moreover, "[t]he structure of the Sentencing Guidelines suggests that the criminal history category is to be determined without regard to the nature of the crime for which the defendant is currently being sentenced." Goldbaum, 879 F.2d at 813, citing United States v. Reyes-Ruiz, 868 F.2d 698, 700 (5th Cir.1989). 79 The better inference is that the Commission chose not to propose an even higher base level for escape offenses because it anticipated that a separate upward adjustment in the criminal history category would produce a similar result. The Goldbaum court stated: 80 [I]n the absence of any contrary intent we must apply the clear language of the guideline and presume that in formulating the base level specified for the crime of escape in Guideline Sec. 2P1.1, the Sentencing Commission had in mind that under Guidelines Secs. 4A1.1(d) and (e), points would be added to the particular defendant's criminal history category thereby enhancing the sentence. 81 Carroll also maintains that the court made an interpretation error by adding one point under guideline Sec. 4A1.1(e), which provides that one or two points shall be added to the criminal history category "if the defendant committed the instant offense less than two years after release from imprisonment." Carroll argues that this guideline is inapplicable to his situation because he was obviously not released before he committed the offense. 82 This claim was recently rejected by the Fourth and Tenth Circuits. See United States v. Ofchinick, 877 F.2d 251, 256-57 (3d Cir.1989); United States v. Goldbaum, 879 F.2d 811 (10th Cir.1989). The Ofchinick court indicated: 83 Unquestionably the language of the guideline supports [appellant's] interpretation. However, application note 5 to guideline Sec. 4A1.1 indicates that guideline Sec. 4A1.1. (e) "applies if the defendant committed the instant offense while still in confinement on such a sentence." Guideline Sec. 1B1.7 provides that the commentary, which includes the application notes, may be used to "interpret the guideline or explain how it is to be applied." Thus, there is no question but that the computation of [appellant]'s criminal history category was consistent with the intent of the Sentencing Commission. 84 Thus, while we recognize the inconsistency between the guideline and the note, we do not see how we cannot follow the note, as the Sentencing Commission issued both the guidelines and the commentary in its official Guidelines Manual. This is not the usual case in which we are asked to accept legislative history such as committee reports, or even testimony of a witness before a committee, to determine the intent of Congress as a whole. 85 (Footnote omitted.) 86 Like the Fourth Circuit, we recognize that the commentary accompanying the Sentencing Guidelines Manual is unusually probative of the Commission's intent on this issue. We also recognize that a recent amendment to this section, which took effect on November 1, 1989, supports our interpretation by adding "or while in imprisonment or escape status on such a sentence" to the end of the first sentence of the guideline. "Inasmuch as the amendment to the guideline is intended to clarify the existing guideline, we may give it substantial weight in determining the meaning of the existing guideline." Ofchinick, 877 F.2d at 257 n. 9. We affirm the sentencing court's application of the guidelines to determine Carroll's criminal history category. E. 87 Finally, Carroll contests the district court's refusal to grant him a two level offense reduction for his "acceptance of responsibility" as permitted by Sec. 3E1.1 of the guidelines. Carroll maintains that he should have received the two level reduction because he waived indictment and pleaded guilty within two weeks of his initial appearance on the complaint. The district court disagreed, concluding that Carroll had not "expressed any remorse" and was only "trying to be [as] persuasive as possible ... to pay the minimum to what he did to himself." 88 This circuit recently discussed the standard for reviewing a district court's "acceptance of responsibility" determination in United States v. Wilson, 878 F.2d 921 (6th Cir.1989). Quoting United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989), we explained: 89 Whether or not a defendant has accepted responsibility for his crime is a factual question. The district court's determination of that question, like its findings with respect to manager status, and minimal participant status, enjoys the protection of the "clearly erroneous" standard. Because the trial court's assessment of a defendant's contrition will depend heavily on credibility assessments, the "clearly erroneous" standard will nearly always sustain the judgment of the district court in this area. Indeed, the guidelines specifically state that "[t]he sentencing judge is in a unique position to evaluate the defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation." 90 (Citations omitted.) 91 A guilty plea does not automatically entitle a defendant to the acceptance of responsibility reduction. See Sec. 3E1.1. (c). Although a guilty plea may provide some evidence of a defendant's acceptance of responsibility, that acceptance remains questionable where, as here, the plea may have been induced by factors of overwhelming evidence of guilt and desire to avoid the risk of conviction on other charges, such as solicitation to murder. Carroll's continued insistence that the inmate-informant had initially approached him further supports the court's conclusion that Carroll had not accepted full responsibility for the offense. 92 Finally, the factors that Sec. 3E1.1's commentary lists as appropriate to consider in deciding whether to apply the "acceptance of responsibility" reduction hardly apply to Carroll. Carroll did not voluntarily withdraw from or terminate his criminal conduct prior to his apprehension or in some other way timely manifest through his conduct an acceptance of responsibility. Carroll merely entered a guilty plea in the face of almost certain conviction. The district court was in a much better position to observe Carroll's demeanor, and whether we agree with its ruling is not the issue. The real question is whether the district court's finding of fact in the matter is clearly erroneous. Plainly, it is not. V. 93 For the reasons given, appellant's sentence is VACATED and the matter is REMANDED for resentencing. * The Honorable Henry R. Wilhoit, Jr., United States District Judge for the Eastern District of Kentucky, sitting by designation 1 Both parties agree that the burden of persuading the court that an aggravating factor applies remains with the government. The parties do not address, so neither do we, whether the government should also be required to disprove application of mitigating factors or whether the burden of persuading the court that a point reduction applies should shift to the defendant seeking the reduction. See United States v. Lovell, 715 F.Supp. 854 (W.D.Tenn.1989) (shifting burden of persuasion); United States v. Dolan, 701 F.Supp. 138, 140 (E.D.Tenn.1988) (burden remains on government at all times) 2 The government might have arrested Carroll after he had spoken only to the informant. Obviously the government's evidence would not have been nearly as compelling, but the crime would have been the same. Instead, the government organized and orchestrated its own scheme, introducing Carroll to an agent who was able to obtain the incriminating evidence that led to Carroll's guilty plea by appearing to participate in the planned escape 3 Question 22 provides in pertinent part: 22 In a case involving escape from prison (or work release) as the instant offense, does the defendant receive two criminal history points for Sec. 4A1.1(d) and one more for Sec. 4A1.1(e)? Yes, providing the prior sentence of imprisonment (or work release from confinement) is at least 60 days. The defendant receives two points pursuant to Sec. 4A1.1(d) for committing the instant offense while under any criminal justice sentence. Another point is received for committing the offense less than two years after release from imprisonment on a sentence of at least 60 days (Sec. 4A1.1(e)). As stated in Application Note # 5, Sec. 4A1.1(e) "also applies if the defendant committed the instant offense while still in confinement on such a sentence."

190 So.2d 42 (1966) Henry GREEN, Jr., Appellant, v. STATE of Florida, Appellee. No. 6828. District Court of Appeal of Florida. Second District. September 7, 1966. *43 Robert E. Jagger, Public Defender, and Robert E. Pyle, Asst. Public Defender, Clearwater, for appellant. Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee. PIERCE, Judge. This is an appeal by Henry Green, Jr., from a judgment of conviction entered against him upon a jury verdict finding him guilty under an information filed in the Pinellas County Circuit Court charging him with robbery at gun point of one Hiram Sharp. From the judgment and sentence imposed defendant Green assigns numerous errors, only one of which deserves serious consideration, namely, the propriety of allowing the testimony of a State witness, Allie Mae Smith, to go to the jury over objection of defendant. The robbery occurred on November 13th, 1964, at about 7 o'clock P.M. at the Seven-Eleven Food Store, located on 78th Avenue in St. Petersburg. The Assistant Manager of the store, Hiram C. Sharp, Jr., was sweeping up in the aisle of the store with his back to the front entrance, when two colored men came in, walked up behind him, and asked him if he had any beer. Sharp straightened up and indicated where the beverage could be found in the store, at which time one of the colored men stuck a gun in his back and said "this is a stick-up, I don't want any trouble, I will blow your head off". Sharp then proceeded to turn over the contents of the cash register and a small safe on the floor to the men, amounting to a little over $214.00. The men thereupon turned around and walked out of the store side by side and disappeared. At the time they entered no one else was inside the store except Sharp, but while they were inside and before they left a customer, James S. Wegner, entered and after walking around the store noticed Henry Green standing at the end of the counter looking out in front of the store. He then noticed the other negro standing at the cash register with Mr. Sharp. Immediately afterward, when he went to pay *44 his bill, Wegner saw the cash registers were open and then ascertained, in conversation with Sharp, that the robbery had just occurred. The two negroes had just left the store. Wegner positively identified the defendant Henry Green as being the negro who had been watching out the front door.[1] Allie Mae Smith, a 16 year old girl, who had known Henry Green for about five years, went to see Green at the County Jail while he was awaiting trial, and had a short conversation with him. Her occupancy of the witness stand was punctuated by repeated objections and arguments between counsel and continual haranguing and colloquys between counsel and the Court, all of which tended to incredibly slow up the pace of the trial, and has rendered difficult a coherent reading of what actually took place. She was brought on as a witness to narrate the substance of her conversation with Green at the jail, and ostensibly to quote statements from Green that would implicate him in the Seven-Eleven robbery upon which he was on trial. But after all the clashes and acrimony of counsel and indulgences of the Court that marked her tenure as a witness, and the fragmentary shambles of her testimony could be analyzed, all that had been accomplished was to infect an otherwise orderly criminal prosecution with fatal error. The substance of her testimony, as gleaned from the morass of extra-testimonial bickerings attendant upon the proceedings, was that she had read a newspaper article in the Clearwater Sun "about Henry Green * * * about money being stolen * * * from the Seven-Eleven". The following excerpts from the record refer to the conversation: "Q Who was present when you were talking to Henry? A No one. Q Just the two of you? A Yes. Q All right, what did you say to him and what did he say to you? A Well, I asked him where did he go. He said he went to Miami or Georgia, one of them. And I asked him how did he get there. He said with Leroy in the white Oldsmobile. And I told him people out where I live was accusing me of being with them when that happened. Q When what happened? A When he was being accused of money being stolen. Q All right, what did he say? A He said that he was going to punish them, or something like that. Made some kind of remark. Q All right, go ahead. What else did you talk about? Did you ask him anything about the money? * * * * * * A That's all I know." The newspaper article in question was never introduced or offered in evidence, it was not otherwise identified, and the contents of the article were not otherwise disclosed except as aforesaid. Allie Mae did not have the article with her when she was at the jail or at the trial, although she had been interrogated by the prosecutors just prior to trial. It is obvious from her testimony that both the news article itself and her conversation with Green at the jail related to a robbery of a Seven-Eleven Store with money being taken. It is equally obvious, however, that the robbery was never identified as this particular robbery for which Green was on trial. The trial Judge, after such testimony was already in, apparently decided to strike Allie Mae's testimony, observing that — *45 "* * * after having thought about this particular case that is before me I would have to strike all the testimony of Allie Mae Smith, because it is my opinion that I should strike it and so inform the jury. * * * It is my opinion, though, that it would be actually harmful error with the mistake that I had made,[1a] and it is my further opinion that Allie Mae Smith's testimony when I think about it, most of it is immaterial. In fact, in my opinion all of it is immaterial, and it is almost impossible to pick out what is not and what is material. In fact it is my opinion that most of it is immaterial. Therefore I would grant the motion for a directed verdict at this time based on the case as it now appears." However, during the ensuing wrangling of counsel, with the Court participating therein, the Judge apparently changed his mind and, after letting the prosecutor put Allie Mae back on the witness stand but adducing nothing additional from her of any consequence, denied successive motions to strike the various portions of her testimony. The case then went to the jury, resulting in the verdict of guilty as aforesaid. For decades in Florida — in fact since 1886[2] — convictions have been reversed because of admission of evidence of other offenses wholly independent of the case being tried. Such evidence must be excluded if it has no direct bearing in proof of the instant case and where the only probative value is to prove or tend to prove a wholly extraneous offense. Hooper v. State, Fla.App. 1959, 115 So.2d 769; Hartman v. State, 1936, 121 Fla. 627, 164 So. 354; Rhodes v. State, 1932, 104 Fla. 520, 140 So. 309; West v. State, 1939, 140 Fla. 421, 191 So. 771; Adams v. State, 1943, 153 Fla. 68, 13 So.2d 610. And this is true even though the offenses are similar or of like nature. Denton v. State, 1913, 66 Fla. 87, 62 So. 914; Suarez v. State, 95 Fla. 42, 115 So. 519; Boyett v. State, 1928, 95 Fla. 597, 116 So. 476; Varnum v. State, 1939, 137 Fla. 438, 188 So. 346; Padgett v. State, Fla. 1951, 53 So.2d 106; Fastow v. State, Fla. 1951, 54 So.2d 110; Smith v. State, Fla. 1951, 54 So.2d 37. Likewise, any evidence that has no more attributes of admissibility than to merely suggest, or tend to suggest, commission of an independent crime, goes out. Wilson v. State, Fla.App. 1965, 171 So.2d 903; Andrews v. State, Fla.App. 1965, 172 So.2d 505. In 1959 the Supreme Court, in Williams v. State, Fla. 1959, 110 So.2d 654, in a well-publicized opinion by Chief Justice Thornal, presumed to put a "new look" on such extraneous-offenses evidence, or at least to chart a new "legal approach" to such evidence. Up until Williams the inadmissibility of such evidence had been intermittently referred to in the cases as "the general rule", while the instances of admissibility had been variously described as "the exceptions". The Williams case took the old package out of tinfoil and wrapped it up in neat, modern cellophane by announcing that the admission of such evidence would be thenceforth "the general rule" and the non-admission would be "the exception". Thus, by a sort of reverse English the rule of relevancy has now supplanted the rule of exclusion. And it is to the credit of our Supreme Court that this new approach was announced. Because it is as it should be. Admissibility should always be favored if legally permissible. Exclusion should never *46 be resorted to unless legally necessary. The contrast between hearsay and res gestae is a classic example. Hearsay, now the exclusionary rule, should be the exception. Res gestae, now the admissibility exception, should be the rule — if and when, of course, it is applicable. See Williams v. State, Fla. App., 188 So.2d 320, opinion filed June 24, 1966. Fundamentally, however, as we read Williams, the essential characteristics of evidentiary admissibility have not been materially altered. Evidence of other offenses which was admissible before Williams has been generally held admissible since Williams, and will undoubtedly continue so to be held in the future; and vice versa as to inadmissibility. We analyze Williams to mean that evidence of other offenses is admissible if — — it is relevant and has probative value in proof of the instant case or some material fact or facts in issue in the instant case; and — its sole purpose is not to show the bad character of the accused; and — its sole purpose is not to show the propensity of the accused to commit the instant crime charged; and — its admission is not precluded by some other specific exception or rule of exclusion. Thus, evidence would now be admissible as meeting the foregoing tests flowing from Williams which, prior to Williams, was held admissible under one or more of the then recognized exceptions to the then general rule of exclusion. Examples are: where such evidence of another or similar crime is admissible to prove identity, Thomas v. State, 1938, 132 Fla. 78, 181 So. 337; Kennedy v. State, 1939, 140 Fla. 124, 191 So. 193; Licht v. State, Fla.App. 1963, 148 So.2d 295; or to prove motive, pattern or intent, Hutchinson v. State, Fla.App. 1958, 102 So.2d 44; Shargaa v. State, Fla. 1958, 102 So.2d 814; or to show a common scheme or design, Talley v. State, 1948, 160 Fla. 593, 36 So.2d 201; or to show guilty knowledge, Langford v. State, 1894, 33 Fla. 233, 14 So. 815; or where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime, Nickels v. State, 1925, 90 Fla. 659, 106 So. 479; or where it is part of the res gestae, Kennedy v. State, 1939, 140 Fla. 124, 191 So. 193; or where it tends to disprove a defense of alibi, Thomas v. State, 1938, 132 Fla. 78, 181 So. 337; or to disprove unlawful entrapment, Ybor v. United States, 5 Cir.1929, 31 F.2d 42; or to disprove a defense of accident, mistake or inadvertence, Andrews v. State, Fla. App. 1965, 172 So.2d 505; Talley v. State, supra. Evidence tending to prove the various foregoing elements was held to render admissible as exceptions evidence of independent crimes in the respective cases cited, and such evidence would undoubtedly meet the tests now prescribed for relevancy in Williams. The adjudicated cases since Williams involving admissibility of such evidence have shown a pattern of disposition quite consistent with disposition of similar cases prior to Williams. Thus, where collateral crime or "similar fact" evidence has been held admissible, such as in Mackiewicz v. State, Fla. 1959, 114 So.2d 684; Johnson v. State, Fla. 1961, 130 So.2d 599; Reddish v. State, Fla. 1964, 167 So.2d 858; San Fratello v. State, Fla.App. 1963, 154 So.2d 327; Bell v. State, Fla.App. 1965, 178 So.2d 131; like disposition would have undoubtedly been reached prior to Williams. And by the same token, where collateral crime or "similar fact" evidence has been held inadmissible, such as in Norris v. State, Fla. App. 1963, 158 So.2d 803; State v. Norris, Fla. 1964, 168 So.2d 541; Williams v. State, Fla. 1962, 143 So.2d 484; Jordan v. State, Fla.App. 1965, 171 So.2d 418; Hooper v. State, supra; cf. Swain v. State, Fla.App. 1965, 172 So.2d 3; it would undoubtedly have been held inadmissible prior to Williams. *47 The same line of demarcation between admissibility and non-admissibility of such "similar fact" evidence applies with equal force where the evidence of the collateral and unconnected crime derives from previous statements of defendant, as here. See Minturn v. State, Fla.App. 1962, 136 So.2d 359; Hooper v. State, Fla.App. 1959, 115 So.2d 769; Moseley v. State, Fla. 1952, 60 So.2d 167. The argument for inadmissibility is, in fact, more cogent. From all the foregoing, it is clearly evident from the record before us that the evidence of Allie Mae Smith detailing her conversation with defendant Green with reference to the robbery of a Seven-Eleven Food Store, not otherwise identified as being the store or the robbery involved in the case on trial, was not relevant to prove any fact or facts in issue before the jury, and its sole purpose and effect could only have been to show the bad character of the defendant when he had not put his character into evidence, and his propensity for committing the robbery in question. The oft-quoted observation of Mr. Justice Cordoza, in Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196, is pertinent: "It is for ordinary minds, and not for phychoanalysts, that our rules of evidence are framed. They have their source very often in considerations of administrative convenience, of practical expediency, and not in rules of logic. When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out." From all the foregoing, it necessarily follows that, because of the improper admission of the testimony of Allie Mae Smith, the judgment and sentence appealed from must be reversed. Reversed and remanded. HOBSON, Acting C.J., and SILVERTOOTH, LYNN N., Associate Judge, concur. NOTES [1] Green and Whiting were informed against jointly but were tried separately, and the instant appeal is from the separate trial of Green. Whiting was likewise convicted. [1a] After Allie Mae Smith had testified at length, counsel argued motions in Chambers, after which the Court called the jury back and stated: "Gentlemen of the jury, this witness (Smith) has testified earlier, and in turn I mislead or rather misquoted what she said earlier. It was my recollection that she said she had money, or rather the money was used to go to Miami or Georgia in an Oldsmobile. Please disregard what I said about that. * * * Because I am sure that it was misleading to have me quote what she did not say." [2] Selph v. State, Fla. 1886, 22 Fla. 537; Mann v. State, Fla. 1886, 22 Fla. 600.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 10-1901 ___________ Chrystal Gray, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Arkansas Department of Human * Services, (DHS); John Selig, * [UNPUBLISHED] Director, DHS; Toni Bogan, * Manager, Appeals and Hearings, * Office of Chief Counsel, DHS; * Sherry Middleton, Director, * Division of Volunteerism, DHS, * * Appellees. * ___________ Submitted: November 2, 2010 Filed: December 16, 2010 ___________ Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges. ___________ PER CURIAM. Chrystal Gray appeals from the district court’s1 dismissal of her employment- discrimination retaliation claims brought under 42 U.S.C. §§ 1981, 1983. Upon 1 The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas. careful de novo review, see Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (district court’s grant of motion to dismiss reviewed de novo), we agree with the district court that Gray could not bring an action against defendants under section 1981, see Artis v. Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d 1178, 1181 (8th Cir. 1998) (federal action to enforce rights under § 1981 against state actor must be brought under § 1983). We further agree that, because Gray’s complaint was silent as to the capacity in which she was suing defendants, her complaint was properly construed as asserting only official-capacity claims, see Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007) (if complaint is silent about capacity in which defendant is sued, court interprets complaint as including only official-capacity claims); and, as such, her section 1983 claims failed, see Morstad v. Dept. of Corr. & Rehab., 147 F.3d 741, 743-44 (8th Cir. 1998) (Eleventh Amendment bars § 1983 action against state and its officials acting in their official capacities); Nix v. Norman, 879 F.2d 429, 432 (8th Cir. 1989) (suit brought solely against state or state agency is generally proscribed by Eleventh Amendment). Accordingly, we affirm, see 8th Cir. R. 47B, but we modify the dismissal to be without prejudice to Gray refiling her action. We express no opinion on the timeliness of such an action. ______________________________ -2- 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-95-00526-CR Ex Parte: Christopher Ryan Byrd, Appellant FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY NO. 43,685, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING Appeal is taken from the trial court's denial of habeas corpus relief. Appellant contends that the trial court erred in holding that an administrative driver's license suspension is not punishment so as to bar further prosecution for the same offense. (1) We will affirm. It appears that the facts are undisputed. Appellant was arrested for the offense of driving while intoxicated (DWI) on or about April 21, 1995, and refused to submit to a breath test at the request of the arresting officer. Appellant was advised that his driving privileges would be suspended pursuant to Texas law. See Art. 6701l-5, § 2(d) (now Transp. Code § 72.032). On May 31, 1995, appellant was charged by information with the offense of DWI based on the April 21st incident. In a letter, dated June 8, 1995, the Texas Department of Public Safety notified appellant that his driver's license would be suspended for ninety-days. (2) See Art. 6701l-5, § 2(i) (now Transp. Code § 724.035). The pertinent provision in the Double Jeopardy Clause protects an accused from multiple punishment for the same offense. United States v. Halper, 490 U.S. 435, 440 (1989). The issue before us is whether the forfeiture of appellant's driver's license for ninety days constituted "punishment." This Court has recently held that suspension of a driver's license is not punishment so as to bar prosecution for the same DWI offense. See Ex parte Arnold, No. 03-95-00520-CR, slip op. at 8 (Tex. App.--Austin February 7, 1996, no pet. h.). The United States Supreme Court has addressed the issue of whether forfeitures constitute punishment so as to bar prosecutions growing out of the same offenses in three opinions since 1989. See Montana Dept. of Revenue v. Kurth Ranch, 128 L.Ed.2d 767 (1994); Austin v. United States, 509 U.S. , 125 L. Ed. 2d 488 (1993); Halper, 490 U.S. 435 (1989). We reviewed these opinions in Arnold and will not elongate this opinion by revisiting them. In a different Arnold opinion cited by appellant in his supplemental brief, a Houston Court of Appeals found the rationales used in opinions addressing this issue are difficult to reconcile. See Arnold v. State, No. 01-95-00633-CR, slip op. at 25 (Tex. App.--Houston [1st Dist.] January 18, 1996, no pet. h.). We agree. Appellant cites us to language in the body of the Houston Arnold opinion that tends to support his position. However, the court in that case held that the driver's license suspension did not bar prosecution for DWI, relying on Halper's rationale that the Double Jeopardy Clause is applicable in the "rare" case where the sanction imposed is "overwhelmingly disproportionate to the damages . . . caused" and bears no rational relation to the goal of compensating the government for its loss. See id., slip. op. at 23 (citing Halper, 490 U.S. at 449). In addition to Texas courts of appeals' opinions cited in our Arnold opinion denying habeas relief from DWI prosecution following administrative suspension of driver's license based on the same incident, Ex parte Helber, No. 01-95-00926-CR (Tex. App.--Houston [1st Dist.] February 1, 1996, no pet. h.), has been handed down. In denying habeas relief, the Helber Court noted that a nationwide survey of decisions showed that courts have almost uniformly held that an administrative license suspension does not prohibit a later prosecution for DWI. Id., slip op. at 9. We have reviewed two cases from the United States District Court for the Eastern District of Virginia (Alexandria Division), cited by appellant, holding that driver's license suspension statutes are, at least partially, punitive in nature and jeopardy attaches. See United States of America v. Johnson, No. 95-76-M (E.D. Va. Sept. 1, 1995) (mem.); Murphy v. Commonwealth of Virginia, et al., 89 F. Supp. 577 (E.D. Va. 1995). Our review of Murphy and Johnson fails to persuade us that our opinion in Arnold is incorrect. In our Arnold opinion, we found a bright line distinction between the cases where the government attempted to forfeit property or raise revenue and those cases where the State attempts to suspend a driver's license. Ex parte Arnold, No. 03-95-00520-CR, slip. op. at 5. The Supreme Court noted in Austin that forfeiture has been historically understood as punishing the owner of forfeited property. Austin, 125 L. Ed. at 503; see Ex parte Ariza, 913 S.W.2d 215, 220 (Tex. App.--Austin 1995, pet. filed). On the other hand, courts have traditionally held that a license to drive an automobile is not property, but a privilege subject to reasonable regulations in the interest of the welfare and safety of the public. Ex parte Arnold, No. 03-95-00520-CR, slip op. at 5; Coyle v. State, 775 S.W.2d 843, 846 (Tex. App.--Dallas 1989, no pet.). We adhere to our holding in Arnold that the holder of a driver's license possesses a privilege rather than an interest in property and that its suspension serves the remedial purpose of protecting public safety by quickly removing drivers from the road. Accordingly, we hold that the suspension of appellant's driver's license in this case did not constitute punishment for the same DWI offense under the Double Jeopardy Clause. The trial court's denial of habeas corpus relief is affirmed. Tom G. Davis, Justice Before Justices Aboussie, Kidd and Davis* Affirmed Filed: April 17, 1996 Do Not Publish * Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988). 1.   Appellant's license was suspended pursuant to Act of May 29, 1993, 73d Leg., R.S., ch. 886, § 9, 1993 Tex. Gen. Laws 3515, 3523 (Tex. Rev. Civ. Stat. Ann. art. 6701-5, § 2, since amended and codified at Tex. Transp. Code Ann. §§ 724.031 et seq. (West 1996)). 2.   We note that the record reflects that the trial court granted appellant an occupational driver's license on June 1, 1995. age in the body of the Houston Arnold opinion that tends to support his position. However, the court in that case held that the driver's license suspension did not bar prosecution for DWI, relying on Halper's rationale that the Double Jeopardy Clause is applicable in the "rare" case where the sanction imposed is "overwhelmingly disproportionate to the damages . . . caused" and bears no rational relation to the goal of compensating the government for its loss. See id., slip. op. at 23 (citing Halper, 490 U.S. at 449). In addition to Texas courts of appeals' opinions cited in our Arnold opinion denying habeas relief from DWI prosecution following administrative suspension of driver's license based on the same incident, Ex parte Helber, N

92 F.3d 1173 U.S.v.James A. Dye, Jr. NO. 96-3128 United States Court of Appeals,Third Circuit. July 15, 1996 Appeal From: W.D.Pa., No. 90-00035E, Cohill, J. 1 AFFIRMED.

Court of Appeals of the State of Georgia ATLANTA,____________________ January 16, 2020 The Court of Appeals hereby passes the following order: A19A1755. WILLIE S. JENKINS, JR. v. WILLIE MUNFORD, ON BEHALF OF NEW WILLOW GROVE BAPTIST CHURCH et al. Plaintiffs Willie Munford, Ginneski Munford, and Tracey Cheevers, on behalf of New Willow Grove Baptist Church filed a complaint for, inter alia, declaratory judgment against Willie S. Jenkins, Jr., in this property dispute. The plaintiffs thereafter amended their complaint to add a claim for quiet title, and the court appointed a special master to conduct a title abstract. The plaintiffs then filed a motion to bifurcate the action, and the matter proceeded to a bench trial only as to the claims raised in the original complaint. Following the bench trial, the court entered an order granting declaratory judgment to the plaintiffs, canceling Jenkins’s deed, and awarding the plaintiffs attorney fees. Jenkins then filed this direct appeal. We lack jurisdiction. “In a case involving multiple parties or multiple claims, a decision adjudicating fewer than all the claims or the rights and liabilities of less than all the parties is not a final judgment.” Johnson v. Hosp. Corp. of Am., 192 Ga. App. 628, 629 (385 SE2d 731) (1989) (punctuation omitted). In such circumstances, there must be either an express determination that there is no just reason for delay under OCGA § 9-11-54 (b) or compliance with the interlocutory appeal requirements of OCGA § 5-6-34 (b). See id. “Where neither of these code sections [is] followed, the appeal is premature and must be dismissed.” Id. (punctuation omitted). The order on appeal resolved the declaratory judgment action and canceled Jenkins’s deed. However, the order did not resolve the quiet title claim. See OCGA § 23-3-66 et seq. Further, the order did not direct the entry of final judgment in accordance with OCGA § 9-11-54 (b). Under these circumstances, Jenkins’s failure to comply with the interlocutory appeal procedures deprives us of jurisdiction over this appeal, which is hereby DISMISSED. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/16/2020 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. 

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 07a0030n.06 Filed: January 9, 2007 No. 05-4536 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT CARL G. SIMPSON, Co-Administrator of the ) Estate of Carl D. Simpson; BONNIE REED ) SIMPSON, Co-Administrator of the Estate of Carl ) D. Simpson, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT Plaintiffs-Appellants, ) COURT FOR THE ) SOUTHERN DISTRICT OF v. ) OHIO ) INTERMET CORPORATION, et al., ) OPINION ) Defendants, ) ) and ) ) NATIONAL UNION FIRE INSURANCE CO., ) ) Defendant-Appellee. ) BEFORE: COOK and McKEAGUE, Circuit Judges; and WILHOIT, District Judge.* McKEAGUE, Circuit Judge. This is an appeal from the denial of declaratory relief regarding insurance coverage for an employee’s work-related death allegedly caused by the employer’s intentional tort. Essentially, the question presented is whether, under Ohio law, an umbrella policy of insurance which provides coverage for liability for an occurrence in excess of the _________________________ No. 05-4536 Simpson v. Intermet Corp., et al. * The Honorable Henry R. Wilhoit, Jr., United States District Judge for the Eastern District of Kentucky, sitting by designation. limits of the insured’s primary employer’s liability coverage, and which does not exclude coverage for injury arising in the course of employment, but does exclude coverage for injury resulting from an accident expected or intended from the standpoint of the insured employer, effectively excludes coverage for what is known under Ohio law as a “substantial certainty” intentional tort. The district court, ruling on cross-motions for summary judgment, answered this question in the affirmative. Appellants contend the district court misapplied the controlling Ohio law. For the reasons that follow, we affirm the district court’s judgment. I. FACTUAL AND PROCEDURAL BACKGROUND The material facts are not disputed. Carl D. Simpson had been employed by Intermet Corporation (“Intermet”) at its Ironton Iron, Inc. plant in Ironton, Ohio since 1992. For more than four years, Simpson was an operator of a mold manufacturing machine called a Sutter machine. The Sutter machine injects a sand and resin mixture into a mold to later be filled with iron to create I- beams, an end-product used in automotive manufacturing. Numerous times each shift, the injection ports in the molds would become clogged, requiring the operator to enter into the pinch-points of the machine to remove the clog. During one of these removal procedures on September 21, 1999, Simpson became trapped between the machine’s pinch-points and was crushed, dying within four hours after the accident. Co-Administrators of Simpson’s estate, his father Carl G. Simpson and wife Bonnie Reed Simpson, brought an action against Intermet in the Southern District of Ohio, alleging Simpson’s death was the result of an intentional tort. Plaintiffs alleged, in relevant part, that the conditions in -2- No. 05-4536 Simpson v. Intermet Corp., et al. which Simpson had worked were the product of intentional acts by Intermet and resulted in a substantial certainty that he and other similarly situated employees would be injured. Prior to trial, a settlement of this underlying action was reached between the estate and Intermet and Intermet’s primary insurer, Liberty Mutual Insurance Company (“Liberty Mutual”). Pursuant to the settlement, the estate received benefits from Liberty Mutual up to the limits of the primary insurance coverage. The settlement also included Intermet’s assignment to the estate of its right to proceed against the umbrella policy insurer, National Union Fire Insurance Company (“National Union”), which had refused to defend or participate in the litigation and in the settlement negotiations. This appeal stems from the Co-Administrators’ exercise of this right of assignment. In the same underlying action in the Southern District of Ohio, they sought a declaratory judgment to the effect that Intermet’s liability for Simpson’s death pursuant to the “substantial certainty” intentional tort claim came within the coverage afforded Intermet under National Union’s commercial umbrella policy. There being no genuine issue of material fact, the district court ruled on cross-motions for summary judgment. The district court concluded that National Union was not obligated to indemnify Intermet under the terms of the policy. It concluded that Intermet’s assumed liability for Simpson’s death, in response to a substantial certainty intentional tort claim, was necessarily based on the theory that the accident was, from the standpoint of Intermet, either expected or intended. Because the umbrella policy provided coverage only for an “occurrence,” which is by definition “neither expected nor intended from the standpoint of the insured,” the court held National Union owed no duty to indemnify. The court granted National Union’s motion for summary judgment and denied the estate’s motion for declaratory judgment and summary judgment. This appeal followed. -3- No. 05-4536 Simpson v. Intermet Corp., et al. II. ANALYSIS In this diversity action, calling for interpretation of an insurance policy, the law of Ohio provides the governing substantive law. Under Ohio law, an insurance policy is a contract and its construction is a matter of law. Penn Traffic Co. v. AIU Ins. Co., 99 Ohio St. 3d 227, 229 (2003). The court looks first to the policy language, giving terms their plain and ordinary meaning. Id. If the language is clear and unambiguous, then it must be enforced as written and the court may not resort to construction of the language. Karabin v. State Automobile Mut. Ins. Co., 10 Ohio St. 3d 163, 167 (1984). If the language allows for more than one reasonable interpretation, then it must be strictly construed against the insurer. King v. Nationwide Ins. Co., 35 Ohio St. 3d 208, 211 (1988). There is no ambiguity on the face of National Union’s policy language. National Union’s Commercial Umbrella Policy provides in pertinent part: I. Coverage We will pay on behalf of the Insured those sums in excess of the Retained Limit that the Insured becomes legally obligated to pay by reason of liability imposed by law or assumed by the Insured under an Insured Contract because of Bodily Injury. . . . that takes place during the Policy Period and is caused by an Occurrence happening anywhere in the world. IV. Definitions H. Occurrence means: 1. As respects Bodily Injury or Property Damage, an accident, including continuous or repeated exposure to conditions, which results in Bodily Injury or Property Damage neither expected nor intended from the standpoint of the Insured. All such exposure to substantially the same general conditions shall be considered as arising out of one Occurrence. -4- No. 05-4536 Simpson v. Intermet Corp., et al. V. Exclusions This insurance does not apply to: O. Bodily Injury or Property Damage expected or intended from the standpoint of the Insured. Commercial Umbrella Policy Form pp. 1-9, JA 382-90 (emphasis added). Pursuant to the definition of “occurrence,” coverage does not extend to bodily injury caused by an accident – including an accident consisting of continuous or repeated exposure to conditions – if the injury was expected or intended from the standpoint of Intermet. Consistent with this definition, removing any doubt about the scope of coverage, the policy language also, in Exclusion O, expressly excludes coverage for bodily injury expected or intended from the standpoint of Intermet. The instant controversy stems not from the language itself, but from its significance under Ohio law. After briefly surveying the evolution of Ohio law on insurance coverage of liability for intentional torts, the district court essentially agreed with plaintiffs that Penn Traffic Co. v. AIU Ins. Co., 99 Ohio St. 3d 227 (2003), represents the most recent relevant ruling on the subject by the state’s highest court. Although Penn Traffic was then and continues to be the case primarily relied on by plaintiffs, the district court reached a different conclusion than plaintiffs regarding its import. In Penn Traffic, the Ohio Supreme Court considered an umbrella policy similar to National Union’s. The trial court had determined that the policy’s definition of occurrence – similar but not identical to that found in National Union’s policy – did not afford coverage for liability stemming from a substantial certainty intentional tort. Id. at 234. The trial court therefore awarded summary -5- No. 05-4536 Simpson v. Intermet Corp., et al. judgment to the insurer, holding it had no duty to indemnify the insured employer for bodily injury sustained by an employee. The intermediate appellate court set aside the summary judgment. It focused on the “plain language” of the policy and concluded that, depending on development of the factual record, coverage could be available. The umbrella policy issued to Penn Traffic defined occurrence to mean, “with respect to bodily injury or property damage liability, an event, including the continuous and repeated exposure to substantially the same general harmful conditions neither expected nor intended from the standpoint of the insured.” Id. The appellate court read this definition of occurrence as encompassing an event like the employee’s injury-producing fall unless it was found to have been caused by continuous and repeated exposure to the same conditions that were expected or intended by the employer, Penn Traffic. See Penn Traffic Co. v. AIU Ins. Co., 2001 WL 1085242 (Ohio App. 4 Dist.) (unpublished). In other words, the court held that only injuries resulting from continuous and repeated exposure to harmful conditions were excluded from coverage, and only if the harmful conditions were expected or intended. Id. at *14-15. The court expressly observed that if a comma had been inserted after “conditions” in the above definition, the meaning would have been changed “such that any event which was expected or intended by the insured would be excluded from the definition of ‘occurrence’ and, consequently, not covered by the policy.” Id. at *14 n.4 (emphasis added). Because the record did not disclose whether the employee’s injury had resulted from continuous or repeated exposure to harmful conditions neither expected nor intended, the case was remanded to the trial court for further factual development. -6- No. 05-4536 Simpson v. Intermet Corp., et al. The supreme court affirmed the appellate court’s ruling on the same reasoning. Penn Traffic, 99 Ohio St.3d at 234. Appellants insist this case presents materially identical policy language and contend the district court’s award of summary judgment should, therefore, consistent with Penn Traffic, be reversed. Appellants’ argument lacks merit because its premise is erroneous. The language in the National Union policy is not materially identical to that presented in Penn Traffic. Most importantly, the National Union policy’s definition of occurrence includes the critical comma omitted from the definition considered in Penn Traffic. Hence, the National Union policy expressly covers bodily injury caused by an accident – irrespective of whether it resulted from continuous or repeated exposure to conditions – only if it was neither expected nor intended by Intermet. Stated otherwise, the National Union definition of occurrence expressly excludes any bodily injury that was expected or intended by Intermet. In this crucial respect, the language of the National Union definition of occurrence, although similar to that presented in Penn Traffic, is materially different. Moreover, consistent with this clear and unambiguous definition of occurrence, the National Union policy, in Exclusion O, also expressly excludes coverage for any bodily injury expected or intended by Intermet. There simply is no ambiguity regarding the scope of coverage. Fairly applying the teaching of Penn Traffic to the National Union policy language compels quite a different conclusion than that urged by appellants. Nothing in Penn Traffic hints at judicial unwillingness to enforce the umbrella policy in accordance with its plain language. Summary judgment in favor of the insurer was vacated in Penn Traffic only because there remained, in light of the relevant policy language, genuine issues of material fact regarding causation of the employee’s -7- No. 05-4536 Simpson v. Intermet Corp., et al. injury. Here, in contrast, the record is sufficiently established, in light of the relevant policy language, to enable judgment as a matter of law. The liability assumed by Intermet pursuant to the settlement agreement necessarily stemmed from plaintiffs’ substantial certainty intentional tort claim. On this point, there is no dispute between the parties. That is, the liability assumed by Intermet necessarily stemmed from conditions in the workplace under which Intermet’s intent to harm is inferred as a matter of law. See Penn Traffic, 99 Ohio St. 3d at 228 (observing that where substantial certainty exists, intent to harm is inferred as a matter of law). Or, as explained by the Ohio Court of Appeals in Penn Traffic, with reference to the elements of a substantial certainty tort, Intermet’s intent to harm is inferred, notwithstanding lack of evidence of direct intent or desire to cause harm, based on its actions, which it must have expected would cause harm. 2001 WL 1085242 at *15. It is this necessarily inferred expectation of harm that at once establishes Intermet’s intentional tort liability and disqualifies it from coverage for the liability under the National Union policy. In light of the clear policy language, and the undisputed basis for Intermet’s underlying liability to the Simpson estate, there is no genuine issue of material fact that would forestall summary judgment in favor of National Union. The district court’s succinct ruling, “if there was a ‘substantial certainty” that decedent would be injured, there was no ‘occurrence,’” must therefore be affirmed. The correctness of this analysis is demonstrated by rulings made by the Ohio courts in the wake of Penn Traffic. Similar controversies were presented in McGuffin v. Zaremba Contracting, 166 Ohio App. 3d 142 (Ohio App. 8 Dist. 2006); Cincinnati Ins. Co. v. Schwerha, 2006 WL 1868321 (Ohio App. 7 Dist. 2006); Chavis v. AIG Technical Servs., Inc., 2005 WL 1177929 (Ohio -8- No. 05-4536 Simpson v. Intermet Corp., et al. App. 10 Dist. 2005); and Altvater v. Ohio Cas. Ins. Co., 2003 WL 22077728 (Ohio App. 10 Dist. 2003). The insurance policy at issue in McGuffin contained a definition of occurrence virtually identical to the National Union policy definition, i.e., not including coverage for bodily injury “expected or intended.” The court held that even though the policy did not expressly exclude coverage for substantial certainty intentional torts, the definition of occurrence had the same effect. Following Penn Traffic, the McGuffin court held that “(1) where substantial certainty exists, intent to harm will be inferred as a matter of law, and (2) there is no coverage for substantial-certainty employer intentional torts where an insurance policy excludes coverage for bodily injury ‘expected or intended’ from the standpoint of the insured.” McGuffin, 166 Ohio App. 3d at 146-47, quoting Altvater, 2005 WL 1177929 at *4. The rulings in Schwerha, Chavis, and Altvater also apply this construction of Penn Traffic, enforcing the same definition of occurrence at issue in this case. Appellants cite Talbert v. Continental Cas. Co., 157 Ohio App. 3d 469 (Ohio App. 2 Dist. 2004), as a post-Penn Traffic decision in which summary judgment for the insurer was set aside and liability for a substantial certainty intentional tort was held not to be necessarily excluded from coverage. Talbert is distinguishable. In Talbert, the subject policy contained a definition of occurrence that did not expressly exclude bodily injury that was intended or expected. In addition, the policy contained an exclusion only for bodily injury intentionally caused by the insured. Unlike the provisions at issue in McGuffin, Schwerha, Chavis and Altvater, liability for injury that was merely “expected,” as in a substantial certainty tort, rather than directly intended, was not expressly excluded from coverage. Inasmuch as the subject tort liability appeared not to result from a “direct intent” tort such as battery, but from conduct and knowledge by the employer that may have given -9- No. 05-4536 Simpson v. Intermet Corp., et al. rise to a substantial certainty and necessary expectation of injury, the Talbert court held that coverage was not necessarily excluded. Id. at 479. In its construction and enforcement of the policy language presented, Talbert is thus consistent with Penn Traffic, McGuffin, Schwerha, Chavis and Altvater. Talbert does not, therefore, undermine the correctness of the district court’s ruling on the scope of coverage under the language of the National Union policy. Appellants maintain that Penn Traffic is instructive in yet another way. They point to language in the primary insurance policy presented in Penn Traffic expressly excluding coverage for “injury to an employee arising out of and in the course of employment by the insured.” 99 Ohio St. 3d at 230. Whereas this exclusion was deemed effective to exclude coverage by the primary insurer for Penn Traffic’s liability for the substantial certainty tort, Liberty Mutual’s primary employer’s liability policy in this case included no such “course of employment” exclusion. In fact, Liberty Mutual expressly provided coverage for bodily injury sustained by an employee in the course of employment, while excluding coverage for “injury intentionally caused or aggravated by [Intermet],” but not excluding coverage for a substantial certainty intentional tort. Consequently, Liberty Mutual has, pursuant to the settlement agreement, paid the policy limits to the Simpson estate. Appellants contend that National Union’s policy, as an “umbrella” policy, should be construed as providing coverage as broad as, if not broader than, the underlying insurance. They argue that because an umbrella policy “typically” provides broader coverage than the primary coverage, the National Union policy should be construed, notwithstanding its clear and unambiguous language, as providing coverage at least as broad as the Liberty Mutual policy, to include coverage for substantial certainty torts. - 10 - No. 05-4536 Simpson v. Intermet Corp., et al. Even an umbrella policy must be enforced under Ohio law so as to give effect to its plain language. The National Union policy is a stand alone policy that contains its own definitions and exclusions. As explained above, pursuant to these clear and unambiguous terms, coverage for liability for a substantial certainty intentional tort under the umbrella policy is clearly not as broad as that afforded under the Liberty Mutual policy. Appellants’ argument based on the “typical” scope of umbrella policies is meritless. III. CONCLUSION For the above reasons, we find no error in the district court’s judgment. The National Union policy language is unambiguous and the district court’s enforcement of the language as written is proper under Ohio law. Accordingly, the district court’s award of summary judgment in favor of appellee National Union is AFFIRMED. - 11 - 

Case: 19-50080 Document: 00515185889 Page: 1 Date Filed: 11/04/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-50080 November 4, 2019 Lyle W. Cayce NANCY C. CALDERON; PHILLIP R. CALDERON, Clerk Plaintiffs - Appellants v. BANK OF NEW YORK MELLON, formerly known as Bank of New York, as Trustee for the Certificateholders of the CWABS, Incorporated, Asset-Backed Certificates Series 2006-22; SPECIALIZED LOAN SERVICING, L.L.C., Defendants - Appellees Appeal from the United States District Court for the Western District of Texas USDC No. 5:17-CV-933 Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges. PER CURIAM:* Nancy C. Calderon and Phillip R. Calderon challenge the grant of summary judgment in favor of Bank of New York Mellon (“Bank”). In granting the Bank’s summary judgment motion, the district court held that res judicata barred the Calderons’ Texas Constitutional claims, and that there was no * 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: 19-50080 Document: 00515185889 Page: 2 Date Filed: 11/04/2019 No. 19-50080 genuine dispute of material fact regarding the Bank’s abandonment of its acceleration notice. The Calderons argue the district court erred by applying res judicata to dismiss a claim under the Texas Constitution that they did not raise, and the Bank’s purported abandonment of acceleration letter was ambiguous, therefore creating a genuine fact issue for a jury to decide. We AFFIRM. FACTS AND PROCEDURAL HISTORY In 2006, the Calderons purchased a house located at 2125 West Gramercy Place, San Antonio, Texas 78201, by executing a Texas Home Equity Adjustable Rate Note and Deed of Trust in the amount of $414,500. The Note and Deed of Trust were then assigned to the Bank. The Calderons indisputably defaulted on the Note and Deed of Trust. As a result, the Bank sent the Calderons a Notice of Acceleration on August 10, 2010, accelerating the debt on the Note. (The date of this acceleration is disputed. The Calderons claim the loan was accelerated on March 10, 2010.) On August 19, 2010, the Calderons executed a Loan Modification Agreement for $509,033.06. On August 30, 2010, the Bank sent the Calderons a Letter of Abandonment, describing the Bank’s abandonment of the August 10 acceleration due to the loan modification. A year later, on August 14, 2011, the Calderons again defaulted, and the Bank sent a Notice of Default seeking only the past due payments totaling $20,203.68. The Calderons filed suit in state court against Bank of America, acting as the Bank’s mortgage servicer, on February 6, 2012, contending the Bank did not have authority to foreclose on the property, and requesting a declaratory judgment, quiet title, injunctive relief, and attorney’s fees. The case was removed to federal court. On July 27, 2012, the Bank sent the 2  Case: 19-50080 Document: 00515185889 Page: 3 Date Filed: 11/04/2019 No. 19-50080 Calderons a Payoff Demand Statement. On April 23, 2013, the court granted summary judgment for Bank of America in the 2012 suit. On April 25, 2013, the Calderons sent the Bank a letter stating that the 2010 Loan Modification Agreement violated the Texas Constitution. In response, on June 27, 2013, the Bank sent a Notification of Cure, denying all the Calderons’ complaints and rescinding the Loan Modification. Also in 2013, the Calderons were named class representatives in a class- action lawsuit in the Southern District of Texas against Bank of America, the mortgage servicer for their loan. Following a decision favorable to the Bank of America on a certified question to the Texas Supreme Court, the case was voluntarily dismissed without prejudice. On May 15, 2014, the Bank sent the Calderons a new Notice of Acceleration. On September 15, 2016, the Bank sent the Calderons a new Notice of Default and Intent to Accelerate. On March 14, 2017, the Bank sent another new Notice of Acceleration. On August 14, 2017, the Calderons filed a complaint in state court, and the Bank timely removed this action to federal court. On January 17, 2018, the Calderons filed an amended complaint to quiet title alleging that the Bank accelerated the loan on August 10, 2010, and the Bank never abandoned that acceleration, and, even if they had, the Calderons had detrimentally relied on the acceleration, and, therefore, the statute of limitations had run on the Bank’s ability to foreclose on the property. The Bank moved for summary judgment, which the district court granted. ANALYSIS Texas substantive law applies to this diversity-jurisdiction case. Erie R.R. v. Tompkins, 304 U.S. 64, 78–79 (1938). We review the res judicata effect of a prior judgment de novo. Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 3  Case: 19-50080 Document: 00515185889 Page: 4 Date Filed: 11/04/2019 No. 19-50080 559, 571 (5th Cir. 2005). Likewise, the district court’s “grant[] and denial[] of summary judgment [is reviewed] de novo.” Century Surety Co. v. Seidel, 893 F.3d 328, 332 (5th Cir. 2018) (quotations and citation omitted). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A. Texas Constitutional Claims The Calderons argue that the district court erred by finding a constitutional claim regarding the 2010 Loan Modification barred under res judicata. In Texas, for res judicata to apply, three elements must be present: “(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims that were raised or could have been raised in the first action.” Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). The Calderons dispute the first and third elements. The Calderons assert that res judicata is not at issue because they did not raise a claim under the Texas Constitution in this case. It is true that it was not properly raised in pleadings, but it was relied upon in the Calderons’ response to the Bank’s summary judgment motion, prompting the district court to address the Calderons’ argument. See Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990). In so doing, the district court was correct that any such claim would be precluded. Texas law requires a “transactional approach” to claim preclusion: “A subsequent suit will be barred if it arises out of the same subject matter of a previous suit and which through the exercise of diligence, could have been litigated in a prior suit.” Barr v. Resolution Tr. Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992). Thus, the claim need not be previously 4  Case: 19-50080 Document: 00515185889 Page: 5 Date Filed: 11/04/2019 No. 19-50080 actually raised if it previously could and should have been raised. The Calderons did not challenge the constitutionality of the Loan Modification in the 2012 lawsuit. However, they clearly could have. That case involved the same Note and Deed of Trust as this one. The modification in question occurred in 2010, well before the 2012 suit was filed. The Calderons cannot now assert a constitutional claim that they neglected to raise in 2012. Therefore, to the extent that any constitutional claim was raised or relied upon in this case, we affirm the district court’s judgment on the issue of res judicata. B. Abandonment of Acceleration Under Texas law, “[a] person must bring suit for . . . the foreclosure of a real property lien not later than four years after the day the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.035(a). If foreclosure does not occur within this limitations period, “the real property lien and a power of sale to enforce the . . . lien become void.” Id. § 16.035(d). If the note secured by the property contains an optional acceleration clause, “the action accrues only when the holder actually exercises its option to accelerate.” Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001). The acceleration may be abandoned, either by the lender’s unilateral actions or by agreement, in which case a new limitations period will begin to run when the lender exercises its option to re-accelerate the note. Boren v. U.S. Nat’l Bank Ass’n, 807 F.3d 99, 106 (5th Cir. 2015); Holy Cross, 44 S.W.3d at 566–67. “[T]he request for payment of less than the full obligation—after initially accelerating the entire obligation—[is] an unequivocal expression of the bank’s intent to abandon or waive its initial acceleration.” Martin v. Fed. Nat’l Mortg. Ass’n, 814 F.3d 315, 318 (5th Cir. 2016). Further, “the holder can abandon acceleration if the holder continues to accept payments without exacting any remedies available to it upon declared maturity.” Rivera v. Bank 5  Case: 19-50080 Document: 00515185889 Page: 6 Date Filed: 11/04/2019 No. 19-50080 of Am., N.A., 607 F. App’x 358, 360 (5th Cir. 2015) (per curiam) (quoting Holy Cross, 44 S.W.3d at 566–67). Viewing the facts in the requisite light most favorable to the Calderons, there is no genuine dispute of material fact. The August 30, 2010, Letter of Abandonment unequivocally abandoned the acceleration. Even had it not, the August 14, 2011, Notice of Default requesting only the past due amounts, substantially less than the full amount owed, acted as an abandonment of the acceleration. See Martin, 814 F.3d at 318. Once again, in the 2013 Notification of Cure, the Bank sent notice the Calderons could cure their default by remitting a reinstatement amount of $93,169.39, substantially less than the full amount of the loan. All of these actions sufficed to abandon the acceleration of the loan prior to the statute of limitations cutoff, even assuming the note was accelerated on the earlier March 10, 2010, date. The only argument the Calderons raise is that the 2013 Notification of Cure unwound everything done since the 2010 loan modification. Therefore, they claim any intervening abandonment of acceleration was undone, and they were restored to the same position they were at on August 10, 2010—with an accelerated loan. There is no basis for this assertion, and they cite no authority for this proposition. The main case they rely upon, Wilmington Trust, N.A. v. Rob, 891 F.3d 174 (5th Cir. 2018), involved a reinstatement of the loan followed by a foreclosure lawsuit purporting to trigger acceleration of the loan. Under a different set of facts from this case, the court held that the bank failed to show a “notice of intent to accelerate prior to filing suit” such that it was not entitled to foreclosure. Id. at 178. The Notification of Cure stated it was returning the Calderons to default status. In any event, as noted, the Notification of Cure would have acted as an abandonment itself if the loan was accelerated, and it was sent on June 27, 6  Case: 19-50080 Document: 00515185889 Page: 7 Date Filed: 11/04/2019 No. 19-50080 2013, well within the four-year statute of limitations. Additionally, the Calderons agree the Notification of Cure did not rescind the intervening payments made by them after the 2010 modification but prior to the notification of cure. As noted above, the Bank’s acceptance of payments acted as an abandonment. See Rivera, 607 F. App’x at 360; Holy Cross, 44 S.W.3d at 566–67. Finally, the Calderons did not assert their detrimental reliance claim on appeal, and thus, have abandoned it. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Even if they had asserted it, we held earlier this year that no such claim is available under Texas law. Jatera Corp. v. US Bank Nat’l Ass’n, 917 F.3d 831, 837 (5th Cir. 2019). AFFIRMED. 7 

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER ON MOTION FOR REHEARING OF COURT’S ORDER GRANTING EN BANC RECONSIDERATION Appellate case name: In the Interest of J.J.G., L.K.G., H.A.G., and A.G.G Appellate case number: 01-16-00104-CV Trial court case number: 2014-00610J Trial court: 313th District Court of Harris County Date motion filed: September 25, 2017 Party filing motion: J.R.G., appellant It is ordered that the motion for rehearing is DENIED GRANTED. Judge’s signature: /s/___Evelyn v. Keyes________________________________________ Acting Individually Acting for the Court The en banc court consists of: Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, Lloyd, and Caughey. Justice Jennings voted to grant the motion for the reasons expressed in his dissenting opinion. Date: November 14, 2017 

127 N.W.2d 606 (1964) Marion BOYER, Appellant, v. IOWA HIGH SCHOOL ATHLETIC ASSOCIATION and Independent School District of Mason City, Iowa, Appellees. Carroll GARLAND, Appellant, v. IOWA HIGH SCHOOL ATHLETIC ASSOCIATION and Independent School District of Mason City, Iowa, Appellees. No. 51235. Supreme Court of Iowa. April 8, 1964. *607 Pappas & Senneff, Mason City, for appellants. Westfall, Laird & Burington, and Beck & Butler, Mason City, for appellees. GARFIELD, Chief Justice. Two paying spectators at a high school tournament basketball game brought law actions against the Iowa High School Athletic Association and the Independent School District of Mason City to recover for personal injuries from collapse of the bleachers. The trial court sustained the school district's motion to dismiss on the ground it was an agency of the state, not liable for negligence in the discharge of a governmental function in the absence of statutory authority for the actions. Plaintiffs appeal from the dismissal. No determination has been made as to the athletic association's liability and that question is not before us. Since the actions are identical we will refer to only one of them. I. The single error relied on for reversal is the sustaining of the motion in that, it is said, the doctrine of governmental immunity should be abrogated in Iowa as outmoded, harsh and not in keeping with the modern trend of the law. Unquestionably adherence to our prior decisions over a period of nearly a hundred years would lead to an affirmance. The school district is a quasi corporation, an arm or agency of the state, created by the legislature to carry out the governmental function of maintaining public schools. City of Bloomfield v. Davis County Comm. School Dist., 254 Iowa 900, 904, 119 N.W.2d 909, 912, and citations. As such a quasi corporation a school district does not differ essentially from a county except that its functions and the purposes of its organization are fewer and more restricted. Lane v. District Township of Woodbury, 58 Iowa 462, 463, 12 N.W. 478. These quasi corporations are to be distinguished from municipal corporations proper, such as cities, which are more amply endowed with corporate functions, conferred in general at the request of the inhabitants of the municipality for their peculiar and special advantage and convenience. Soper v. Henry County (Dillon, J.), 26 Iowa 264, 267; Snethen v. Harrison County, 172 Iowa 81, 85-86, 152 N.W. 12, 13; Larsen v. School District, 223 Iowa 691, 700-701, 272 N.W. 632; Shirkey v. Keokuk County, 225 Iowa 1159, 1170, 275 N.W. 706, 281 N.W. 837. Commencing with Soper v. Henry County, supra, in 1868, we have consistently and repeatedly held, with three exceptions later to be mentioned, that such quasi corporations as counties and school districts are not liable for negligence in the absence of a statute so providing. Speaking of the liability of such "involuntary * * * divisions of the state," the Soper opinion holds (pages 267, 271 of 26 Iowa): "To the statute they owe their creation, and the statute confers upon them all the powers which they possess, prescribes all the duties which they owe, and imposes all the liabilities to which they are subject. * * * If the county ought to be liable in such a case, the remedy must be sought from the legislature." Snethen v. Harrison County, Larsen v. School District, Shirkey v. Keokuk County, *608 all supra, and Post v. Davis County, 196 Iowa 183, 192-193, 191 N.W. 129, 194 N.W. 245, are among decisions which repeat the quoted language. To like effect are Cunningham v. Adair County, 190 Iowa 913, 915-916, 181 N.W. 20; Bruggeman v. Independent School Dist., 227 Iowa 661, 664, 289 N.W. 5; Perkins v. Palo Alto County, 245 Iowa 310, 317, 60 N.W.2d 562, 565; Wittmer v. Letts, 248 Iowa 648, 651, 80 N.W.2d 561, 562. In 1908 Wenck v. Carroll County (Weaver, J.), 140 Iowa 558, 560, 118 N.W. 900, observed: "The rule which has heretofore obtained does not often work substantial injustice, and, if it is to be materially modified or overthrown, it should be done by an expression of the legislative will to that effect." That our decisions correspond with many others to the effect a school district is not liable, in the absence of statute, for injury to pupils or others by reason of the condition of the school premises, see the annotations in 9 A.L.R. 911 and those supplementing it; 40 A.L.R. 1091; 160 A.L.R. 7, 127 et seq.; 86 A.L.R.2d 489, 545-546. The annotation in 160 A.L.R. 7, 127, 129, cites many decisions in support of this rule: "* * * in the absence of statute, it is the general rule that school districts, * * * are immune from liability in tort for the personal injuries or death of pupils or other persons resulting from the dangerous, defective, unsafe, or negligent condition of school buildings, school grounds, or other school facility or equipment on school premises, * * *. "A similar rule obtains with respect to the liability of counties, or towns not having the status of a municipal corporation, while in charge of public school premises." To like effect is Anno. 86 A.L.R.2d 489, 546. We now mention the three exceptions we have recognized to the rule of nonliability of quasi public corporations. (1) Counties were held liable for injury from defective bridges and approaches thereto. This was first recognized in Wilson & Gustin v. Jefferson County, 13 Iowa 181. After a change in the applicable statute the cited decision and those which followed it were overruled in Post v. Davis County, supra, 196 Iowa 183, 191, 191 N.W. 129, 194 N.W. 245, where "we return to the fundamental principle of nonliability of the county in the absence of legislation creating liability" (196 Iowa pages 195-196, 191 N.W. page 135). (2) Ness v. Independent School Dist., 230 Iowa 771, 298 N.W. 855, holds the district liable in damages for a nuisance. (3) Wittmer v. Letts, supra, 248 Iowa 648, 80 N.W.2d 561, holds a county liable for injury to a paying patient in its hospital by reason of the negligence of an employee, on the theory maintenance of the hospital was a proprietary, not a governmental, function. II. The trial court ruled that holding the basketball tournament was a governmental function, not a proprietary one. There is no room for a contrary holding here on this point. Plaintiff does not contend the court erred in this respect. As previously indicated, her sole assigned error is that the whole doctrine of governmental immunity is outmoded and should be abrogated by the courts. It is of course fundamental that a law case will not be reversed on a possible error not assigned and argued. See rule 344(a) (4) (Third), Rules of Civil Procedure, 58 I.C.A. We may observe many authorities support the view the school district was engaged in a governmental function even though spectators at the game were charged admission. They include Richards v. School District, 348 Mich. 490, 83 N.W.2d 643, 648-54; Mokovich v. Independent School Dist., 177 Minn. 446, 225 N.W. 292, 293; Rhoades v. School District, 115 Mont. 352, 142 P.2d 890, 160 A.L.R. 1, 6; Brown v. Board of Trustees, 303 N.Y. 484, 104 N.E.2d 866, 34 A.L.R.2d 720, 723; Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783, 788; Reed v. Rhea *609 County, 189 Tenn. 247, 225 S.W.2d 49; Annos. 160 A.L.R. 7, 67-68, 182, 191-192; 86 A.L.R.2d 489, 576, 582-584. Sawaya v. Tucson High School Dist., 78 Ariz. 389, 281 P.2d 105, is the only contrary precedent called to our attention. We may also observe, without deciding the point, there is much authority that a school district exercises only governmental functions. Reed v. Rhea County, supra; Annos. 160 A.L.R. 7, 65-68; 86 A.L.R.2d 489, 516-520. See also Lane v. District Township of Woodbury, supra, 58 Iowa 462, 463, 12 N.W. 478; Larsen v. School District, supra, 223 Iowa 691, 700-701, 272 N.W. 632. III. We have held many times that if the doctrine of governmental immunity is to be changed it should be done by the legislature. We have already referred to Wenck v. Carroll County, 140 Iowa 558, 560, 118 N.W. 900, and other early cases. Decisions to like effect include Florey v. City of Burlington, 247 Iowa 316, 320-321, 73 N.W. 2d 770, 772; McGrath Building Co. v. City of Bettendorf, 248 Iowa 1386, 1392, 85 N.W.2d 616, 620, 68 A.L.R.2d 1429; Monroe v. Razor Constr. Co., 252 Iowa 1249, 1255-1256, 110 N.W.2d 250, 254. See also Genkinger v. Jefferson County, 250 Iowa 118, 121, 93 N.W.2d 130, 132 which states, "While this rule of governmental immunity as to counties * * * is a court-made rule, it has been in substance the law of the state for many years. We feel it is based upon sound reason and are not inclined to change it." The position we have taken accords with that of most courts. The annotation in 86 A.L.R.2d 489, 501, says: "Undoubtedly, there is more criticism now of the doctrine of governmental immunity and its various underlying reasons, but in most instances the courts have felt that any relief should come from the legislature, particularly in view of the fact that the immunity doctrine in most jurisdictions has been adhered to for a great many years." We think experience in the few states where the court has attempted to abrogate the immunity doctrine indicates legislative action is a better solution. The two principal precedents plaintiff cites are Molitor v. Kaneland Comm. Unit. Dist., 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469, and Spanel v. Mounds View School Dist., 264 Minn. 279, 118 N.W.2d 795. They are the only decisions cited where the court abrogates the immunity doctrine as directly applied to a school district. In both cases the decision was to operate prospectively. In Illinois the new court-made rule was to apply to the instant case and to such others only as arose out of future occurrences. The state legislature promptly reinstated immunity as to certain governmental subdivisions. See Spanel v. Mounds View School Dist., supra, 264 Minn. 279, 118 N.W.2d 795, 801; Clark v. Ruidoso-Hondo Valley Hosp., 72 N.M. 9, 380 P.2d 168, 169; Ill.Rev.Stat.1959, chapter 34, section 301.1; chapter 57½, section 3a; chapter 105, sections 12.1-1, 333.2a and 491. See also chapter 122, section 821, in which the legislature finds and enacts the public policy of Illinois, section 822 which limits to one year the time for commencing action against any school district or nonprofit private school for injury to person or property, and section 825 of chapter 122 which limits recovery against such schools to $10,000 for each cause of action. See also Anno. 86 A.L.R.2d at 526; Comment 46 Iowa Law Review 196, 202. The existence of an Illinois statute as to liability insurance school districts were permitted to obtain may have had a bearing on the decision in the Molitor case. Under the statute, if there were insurance the insurer must waive the right to refuse payment by reason of the immunity of the insured. The Minnesota case, supra, even more persuasively demonstrated the desirability of leaving to the legislature the matter of abrogating the immunity rule. There dismissal of the action on the ground of governmental *610 immunity was affirmed but by way of what was admittedly dictum it was stated that with respect to torts committed after the next regular session of the state legislature the doctrine would not be recognized, subject to existing or subsequent statutes which would limit or regulate the prosecution of such claims. The opinion suggests these matters, among others, which might well receive the attention of the legislature: "(1) A requirement for giving prompt notice of the claim after the occurrence of the tort, (2) a reduction in the usual period of limitations, (3) a monetary limit on the amount of liability, (4) the establishment of a special claims court or commission, or provision for trial by the court without a jury, and (5) the continuation of the defense of immunity as to some or all units of government for a limited or indefinite period of time" (page 804 of 118 N.W.2d). The Minnesota court "readily concede that the flexibility of the legislative process — which is denied the judiciary — makes (that) avenue of approach more desirable" (page 803 of 118 N.W.2d). The Spanel opinion concludes, "It may appear unfair to deprive the present claimant of his day in court. However, we are of the opinion it would work an even greater injustice to deny defendant and other units of government a defense on which they have had a right to rely. * * *" Fette v. City of St. Louis (Mo.), 366 S.W.2d 446, 447-448 (Hyde, J.), considers the Minnesota case, supra, and the same other precedents plaintiff cites here, later to be mentioned herein. We agree with this from the Fette opinion: "We think the above-cited recent Minnesota case shows why this is properly a matter for the legislature." After referring to the five suggested proposals we have quoted above, found in the Minnesota case, the Fette opinion proceeds, "If such legislation is required by the abrogation of this doctrine, and we think it is, it is our view that the whole matter should be left to the legislature." The Missouri court then takes note of the moratorium the California legislature promptly declared on the particular claim and others similarly situated following the decision in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, cited by plaintiff here, and the legislation in Illinois following the Molitor decision, supra, and concludes, "All this confirms our view that whatever is done to change the doctrine of governmental immunity should be done by the legislature and not by the courts." IV. Aside from the Molitor and Spanel decisions just discussed, plaintiff relies on these other out-of-state precedents: Stone v. Arizona Highway Comm., 93 Ariz. 384, 381 P.2d 107; Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457; Hargrove v. Town of Cocoa Beach, (Fla.), 96 So.2d 130, 60 A.L.R.2d 1193; Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1; Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618. We have just referred to the moratorium promptly enacted by the legislature on the Muskopf claim and others similarly situated, following the cited California decision. See Corning Hospital Dist. v. Superior Court, 57 Cal.2d 488, 20 Cal.Rptr. 621, 370 P.2d 325. We may observe that two years later the legislature again passed laws on the subject of immunity and the intermediate appellate court held effect of both legislative enactments was merely to suspend operation of the Muskopf decision. Bell v. City of Palos Verdes Estates, Cal. App., 36 Cal.Rptr. 424, 426-427. In Hargrove, supra, a town was held liable for negligently causing death of a prisoner in the jail. The precedent is not authority for plaintiff here. Two years later the Florida appellate court held a county school board was immune from liability for negligence in maintaining an athletic *611 field. Buck v. McLean, Fla.App., 115 So. 2d 764, 767. The court holds: "There is nothing in this (Hargrove) decision which says, or from which it can be reasonably inferred, that the rule there announced is likewise applicable to the State of Florida, or its several counties and boards of public instruction." The Florida supreme court has cited Buck v. McLean with apparent approval. Kaulakis v. Boyd, Fla., 138 So.2d 505, 507. In Williams v. City of Detroit, supra, an equally divided court holds the city was not liable for death from falling into an unguarded elevator shaft in a municipal building but by a vote of five to three abolished the immunity doctrine as to like causes thereafter arising. In a long separate opinion the judge who cast the deciding vote on this question sought to justify his position in these words (page 18 of 111 N.W.2d): "Regrettably, release of these opinions cannot be delayed until the legislature is in session. * * * "* * * The Governor may call a special legislative session to authorize purchase and maintenance by municipal corporations of liability insurance pending the regular session and such contemplative study of the situation as may result in legislative determination to effect strict immunity by statute; modified immunity by statute; amount-limited liability by statute, or full liability by statute with insured protection." Later Michigan precedents make it clear the Williams case applies only to municipal corporations proper, not to such state agencies as school districts. McDowell v. Mackie, 365 Mich. 268, 112 N.W.2d 491; Sayers v. School District, 366 Mich. 217, 114 N.W.2d 191; Stevens v. City of St. Clair Shores, 366 Mich. 341, 115 N.W.2d 69. Governmental immunity of a city for torts is prospectively abrogated in Holytz v. City of Milwaukee, supra, 17 Wis.2d 26, 115 N.W.2d 618, but the court says the decision applies also to all public bodies in the state, including school districts, but the state itself may be sued only upon its consent. The opinion observes: "If the legislature deems it better public policy, it is, of course, free to reinstate immunity. The legislature may also impose ceilings on the amount of damages or set up administrative requirements which may be preliminary to the commencement of judicial proceedings for an alleged tort." At least this last sentence seems to be by way of suggestion to the legislature. In Clark v. Ruidoso-Hondo Valley Hospital, supra, 72 N.M. 9, 380 P.2d 168, plaintiff cited the same precedents cited to us here. After carefully considering them the court concludes, "The not-too-satisfactory experience in most of those jurisdictions which have attempted to overrule the immunity doctrine by court decision should make it obvious that legislative action on the subject is the preferred solution." V. It is clear our legislature has been fully aware of the long-standing public policy of our state as to governmental immunity and has given thought relative thereto. In many instances the legislature has recognized the doctrine of governmental immunity from liability for torts while engaged in governmental functions and has taken limited action in this field. We mention some of these instances. Several statutes authorize the purchase of liability insurance although none confers authority on school districts to purchase insurance to cover such a claim as this for which we have uniformly held there is no liability. Section 321.497, Code, 1962, I.C.A., provides a city, town or township maintaining a police or fire department may purchase liability insurance covering individuals or groups in such departments. Section 404.8, subd. 6, confers power on municipal corporations to levy a tax to be used, among other purposes, to pay premiums on insurance authorized by 321.497. Section 368A.1, subd. 12, confers power on municipal corporations to purchase liability *612 and property damage insurance covering municipal employees while operating certain vehicles owned or used by the corporations. Section 517A.1, quoted in Johnson v. Baker, 254 Iowa 1077, 1088-1089, 120 N.W. 2d 502, 508-509, authorizes purchase of liability "insurance covering all officers, proprietary functions and employees of such public bodies * * *" (emphasis added). Section 368.11 states, "They (cities and towns) may provide conditions upon which the fire department will answer calls outside the corporate limits * * * and the corporation shall have the same governmental immunity as when operating within the corporate limits" (emphasis again added). Another legislative recognition of governmental immunity of cities and towns is found in chapter 235, Laws of the 60th General Assembly, effective July 4, 1963, I.C.A. § 368.2; "It is hereby declared to be the policy of the state of Iowa that the provisions of the Code relating to the powers, privileges, and immunities of cities and towns are intended to confer broad powers of self-determination as to strictly local and internal affairs upon such municipal corporations and should be liberally construed in favor of such corporations." The state senate in the last regular legislative session passed a state torts claim act (Senate File 377) although it was not passed by the house and, of course, did not become law. It seems clear from the above that the legislature has not closed its eyes to problems surrounding the immunity rule. VI. As above indicated, whether or not the state or any of its political subdivisions or governmental agencies are to be immune from liability for torts is largely a matter of public policy. The legislature, not the courts, ordinarily determines the public policy of the state. State v. Bruntlett, 240 Iowa 338, 355-356, 36 N.W.2d 450, 460; In re Disinterment of Jarvis, 244 Iowa 1025, 1031, 58 N.W.2d 24, 27, and citations; 16 C.J.S. Constitutional Law, § 151(1)b, page 733 "* * * policy questions are for the legislature and not for the courts." Although the doctrine of governmental immunity may have been of ancient judicial origin, it has been recognized as the policy of the state by the limited action of the legislature toward relaxation. The purposes for which public funds may be expended are limited by statute. The legislature recognized and relaxed the limitation by passage of laws authorizing purchase of liability insurance covering proprietary functions and officers and employees of certain public bodies. Had the legislature favored complete abrogation of the immunity rule, as plaintiff contends for, it could have said so and authorized purchase of insurance protecting against such a claim as here asserted. It is significant the legislature did not do so. In the particulars wherein the legislature has acted we have a clear recognition of legislative responsibility for action in the field of public policy. The limited action taken shows more than mere tacit approval of the long-standing doctrine left unchanged. Our problem is whether we should now interfere and by judicial decision overrule a public policy doctrine that is more appropriately left to the legislature. We think not. VII. We are fully aware of the trend away from governmental immunity. We took note of it in Brown v. Sioux City, 242 Iowa 1196, 1201, 49 N.W.2d 853, 857, and Florey v. City of Burlington, supra, 247 Iowa 316, 320, 73 N.W.2d 770, 772. Florey is the same case in which we said any substantial modification of the rule must come by legislation. As pointed out, subsequent decisions adhere to this view. Consideration of the problems of legislative vs. judicial abrogation of the rule, including the *613 precedents plaintiff cites to us, leaves us satisfied the policy we have announced is the preferred one. VIII. The writer joined in a concurring opinion to Moore v. Murphy, 254 Iowa 969, 973-976, 119 N.W.2d 759, 762-763, which warned that the doctrine of governmental immunity might be re-examined in the near future. This has now been done. The conclusion reached from such re-examination is, as stated, that abrogation of the doctrine should come from legislative, not judicial, action. This is the position we have repeatedly taken and, as pointed out, that taken "in most instances," by other courts (Anno. 86 A.L.R.2d 489, 501). It may be added that when Moore v. Murphy was before us little, if any, consideration was given to the question whether the courts or the legislature should act in the matter of abrogating the doctrine. Affirmed. THOMPSON, LARSON, SNELL and STUART, JJ., concur. MOORE, HAYS, PETERSON and THORNTON, JJ., dissent. MOORE, Justice. I dissent. As stated in the majority opinion appellant's sole assigned error is that the whole doctrine of governmental immunity is outmoded and should be abrogated by the court. Yet Division I consisting of several pages of the majority opinion is devoted to identifying quasi corporations as compared to municipal corporations. Both perform governmental functions and by prior decisions have some immunity from tort liability. Any attempt to distinguish between them as to liability for negligent use of bleachers at an athletic event would only add another ridiculous example of the doctrine. Our decisions have already created too many. For example, if a child is injured as a result of negligence at a private or Sunday school recovery may be had but if at a public school immunity bars recovery; if a street, public health, police or fire department vehicle is negligently operated causing injury immunity protects the public body but if done by a private corporation or an individual liability follows; if an individual is injured in a public park or airport immunity may or may not apply depending on the location on the premises; if a defect in a street causes injury recovery is permitted if within a city but is barred by the doctrine of immunity if on a county road. Others could be cited. We are not alone in being faced with the problem of eliminating such absurdities from the law. Text writers and law reviews have for the last several decades unanimously condemned such confusion and contradictions of municipal tort law. In recent years numerous other courts have denounced the municipal immunity doctrine and by decision have abrogated. Several will be quoted later in this dissent. In 75 A.L.R. 1196, a classic observation as to the sociological aspects of sovereign immunity appears which has since been quoted with approval in several jurisdictions; "* * * The whole doctrine of governmental immunity from liability for tort rests upon a rotten foundation. It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, `the King can do no wrong,' should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs." *614 The majority opinion does not dispute the modern trend which recognizes the immunity rule is unjust, unsupported by any valid reason and has no rightful place in modern society but refuses to follow the holding of an overwhelming majority of the more recent cases that being court-made the rule should be eliminated by its creator. To hold the legislature should bury this court's mistakes of the past seems as illogical as the rule itself. The annotation in 86 A.L.R.2d 489 follows the case of Molitor v. Kaneland Comm. Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469. That decision abolishes the previous long existing tort immunity of school districts in Illinois. It permits recovery for injuries received by a child while riding on a school bus. It recognizes the principle of stare decisis makes the accomplishment of justice its primary object and does not compel the blind following of precedents. On page 502, 86 A.L.R.2d, the editor states: "This case may be of great significance even outside Illinois, because of the impact it conceivably will have on those courts which adhere to the immunity rule with ever-increasing reluctance and which may be swayed by the courageous example of the Illinois Supreme Court, as well as by its arguments, to reconsider their position in the light of new developments." Indeed it has had great impact and has been followed by almost all recent opinions written on the subject. Molitor v. Kaneland Comm. Unit Dist., supra, page 93 of 163 N.E.2d states: "It is a basic concept underlying the whole law of torts today that liability follows negligence, and that individuals and corporations are responsible for the negligence of their agents and employees acting in the course of their employment. The doctrine of governmental immunity runs directly counter to that basic concept. What reasons, then, are so impelling as to allow a school district, as a quasi-municipal corporation, to commit wrongdoing without any responsibility to its victims, while any individual or private corporation would be called to task in court for such tortious conduct?" At page 96 it is said: "Defendant strongly urges that if said immunity is to be abolished, it should be done by the legislature, not by this court. With this contention we must disagree. The doctrine of school district immunity was created by this court alone. Having found that doctrine to be unsound and unjust under present conditions, we consider that we have not only the power, but the duty, to abolish that immunity. `We closed our courtroom doors without legislative help, and we can likewise open them.' Pierce v. Yakima Valley Memorial Hospital Ass'n, 43 Wash.2d 162, 260 P.2d 765, 774." In Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130 (written before Molitor) the Florida court abolished the long established municipal corporation immunity from liability for the torts of police officers. At page 132 it is said: "The appellee here contends that any recession from the rule of immunity should come about by legislation rather than judicial decree. It is insisted that the immunity rule is a part of the common law which we have adopted and that therefore its abolition should come about only by statute. We are here compelled to disagree. * * * We can see no necessity for insisting on legislative action in a matter which the courts themselves originated." The court continues on the next page: "In doing this we are thoroughly cognizant that some may contend that we are failing to remain blindly loyal to the doctrine of stare decisis. However, we must recognize that the law is not static. The great body of our laws is the product of progressive thinking which attunes traditional concepts to the needs and demands of changing times. The modern city is in substantial measure a large business institution. While it enjoys many of the basic *615 powers of government, it nonetheless is an incorporated organization which exercises those powers primarily for the benefit of the people within the municipal limits who enjoy the services rendered pursuant to the powers. To continue to endow this type of organization with sovereign divinity appears to us to predicate the law of the Twentieth Century upon an Eighteenth Century anachronism. Judicial consistency loses its virtue when it is degraded by the vice of injustice." (Emphasis ours) This writer feels compelled to cite and quote several opinions written subsequent to Molitor v. Kaneland. McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820, 88 A.L.R.2d 1313, overrules many earlier cases and holds a city liable for injury to a child negligently shot by a policeman. At page 832 of 162 A.2d it is said: "The borough argues that any such change should come about, if at all, by action of the Legislature. But the limitation on the normal operation of respondeat superior was originally placed there by the Judiciary. Surely it cannot be urged successfully that an outmoded, inequitable, and artificial curtailment of a general rule of action created by the judicial branch of the government cannot or should not be removed by its creator." The California Supreme Court in Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, at page 90, 359 P.2d 457, at page 458 states: "After a re-evaluation of the rule of governmental immunity from tort liability we have concluded that it must be discarded as mistaken and unjust." At page 93 of 11 Cal.Rptr., at page 461 of 359 P.2d it is said: "It is strenuously urged, however, that it is for the Legislature and not the courts to remove the existing governmental immunities. Two basic arguments are made to deny the court's power: first, that by enacting various statutes affecting immunity the Legislature has determined that no further change is to be made by the court; and second, that by the force of stare decisis the rule has become so firmly entrenched that only the Legislature can change it. Neither argument is persuasive. "The doctrine of governmental immunity was originally court made. * * * "The state has also enacted various statutes waiving substantive immunity in certain areas. * * * "Nor are we faced with a comprehensive legislative enactment designed to cover a field. What is before us is a series of sporadic statutes, each operating on a separate area of governmental immunity where its evil was felt most. Defendant would have us say that because the Legislature has removed governmental immunity in these areas we are powerless to remove it in others. We read the statutes as meaning only what they say: that in the areas indicated there shall be no governmental immunity. They leave to the court whether it should adhere to its own rule of immunity in other areas." As observed in Division V of the majority opinion our legislature also has enacted a few statutes which indirectly recognize some of the evils of the doctrine of governmental immunity but they leave its elimination to us. The injustices resulting therefrom are caused by our rule. Why should the legislature interfere when we refuse to correct our past mistakes? It is our duty to see that justice is done. "Policy" or any other reason does not justify our inaction. In Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1, the doctrine of governmental immunity is abrogated prospectively by the court. That court cites and quotes at great length many legal writings, law reviews and decisions by other courts dealing with the problems now before us. At pages 16 and 17 of 111 N.W.2d it is said: "All distinguished writers recommend corrective legislation, enacted with the adjusted detail carefully drawn statutes only *616 can provide. So do I. But what is an appellate court to do when the legislative process remains comatose, year after year and decade after decade, the court meanwhile hearing the onus of what was done judicially during the dim yesterdays and maintained to this day by the self-stultifying fetish of stare decisis? Must the court continue to proclaim its impotence as legislators shrug their responsibility with a nod of risus sardonicus toward the error-guilty judicial branch? My answer is that this Court may relieve itself of past error by confessing and adjudging that error, and that it may at the same time force what all students of the problem have rightly sought for lo these many years; a statute relieving the injured citizen from the total burden of municipal negligence and still controlling the result so that municipal functions may be carried on without serious financial risk." The Wisconsin court after extensive review of legal writings, decisions of other courts and its own contrary precedents joins the ever-increasing parade of courts in abrogating governmental immunity in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N. W.2d 618. At page 621 of 115 N.W.2d it is said: "There are probably few tenets of American jurisprudence which have been so unanimously berated as the governmental immunity doctrine. This court and the highest courts of numerous other states have been unusually articulate in castigating the existing rule; text writers and law reviews have joined the chorus of denunciators." At page 623 it is stated: "We are satisfied that the governmental immunity doctrine has judicial origins. Upon careful consideration, we are now of the opinion that it is appropriate for this court to abolish this immunity notwithstanding the legislature's failure to adopt corrective enactments." The question of the scope of the abrogation of the rule is answered by the Wisconsin court at page 625. "The case at bar relates specifically to a city; however, we consider that abrogation of the doctrine applies to all public bodies within the state: the state, counties, cities, villages, towns, school districts, sewer districts, drainage districts, and any other political subdivisions of the state — whether they be incorporated or not." Following the above cited cases and others our sister state to the north, Minnesota, in a case involving injury to a child from a defective slide in a kindergarten classroom prospectively abrogated by court decision the doctrine of governmental immunity. Spanel v. Mounds View School District No. 621, 264 Minn. 279, 118 N.W.2d 795 (December 1962), brands the rule as archaic and prospectively overruled as a defense with respect to tort claims against school district, municipal corporations, and other subdivisions of government on whom immunity had been conferred by judicial decision. At page 803 of 118 N.W.2d it is said: "The Minnesota Legislature has not wholly ignored the problem. School districts have been authorized to provide liability insurance and to waive immunity with respect to claims so insured. Such laws are important steps toward mitigating the harshness of the immunity doctrine. However, we do not share the view that a court-made rule, however unjust or outmoded, becomes with age invulnerable to judicial attack and cannot be discarded except by legislative action." The Nevada court in Rice v. Clark County, Nev., 382 P.2d 605 (May 1963) holds sovereign immunity does not extend to counties so as to relieve them for their negligent operation of roads. The court at page 608 states: "It is contended that it is for the legislature and not the courts to remove immunity. We so stated in Taylor v. State and University [73 Nev. 151, 311 P.2d 733], *617 supra. There we were considering the liability of the State of Nevada and the University of Nevada for negligence. Here, where only a county's liability is involved, we do not hesitate to say that since its immunity was court made, this court as well as the legislature is empowered to reject it." In Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (April 1963) the doctrine of governmental immunity from tort liability is abolished. The Arizona court at page 113 of 381 P.2d states: "It has been urged by the adherents of the sovereign immunity rule that the principle has become so firmly fixed that any change must come from the legislature. In previous decisions (the latest being Lee v. Dunklee, supra) this court concurred in this reasoning. Upon reconsideration we realize that the doctrine of sovereign immunity was originally judicially created. We are not convinced that a court-made rule, when unjust or outmoded, does not necessarily become with age invulnerable to judicial attack. This doctrine having been engrafted upon Arizona law by judicial enunciation may properly be changed or abrogated by the same process." With such an almost unanimous holding as shown by these cases and others cited therein it is most difficult to understand the majority opinion. It cites and apparently relies on Clark v. Ruidoso-Hondo Valley Hospital, 72 N.M. 9, 380 P.2d 168 and Fette v. City of St. Louis, Mo., 366 S.W.2d 446. In Clark v. Ruidoso, supra, the court refused to abrogate the governmental immunity rule as against county hospitals primarily because the New Mexico legislature had made provisions for those injured by negligence of the state or a subdivision thereof in the event liability insurance was carried. At pages 170-171 of 380 P.2d it is said: "We see no reason (the legislature having taken the action that it has) for the court to reconsider a rule of law that has been effective for so many years in this jurisdiction." We have no such legislative enactment. Fette v. City of St. Louis, supra, simply refuses to follow the modern authorities on the subject of whether the court or the legislature should abrogate the doctrine. It holds the matter should be left to the legislature because several state legislatures have taken some action after abrogation by the court. The fallacy of such an approach is clearly shown by the question — "What has happened in Missouri?" and the answer — "Nothing". Several times in the past this court has suggested abrogation should come from the legislature. Nothing has been done to eliminate our court-made unjust rule. We should abrogate the rule now. As demonstrated in the cases any necessary legislative action will follow. In the past we have admitted our mistakes, overruled precedents and adopted proper legal principles as indicated by modern trends and majority rules. In Lindquist v. Des Moines Union Ry. Co., 239 Iowa 356, 30 N.W.2d 120, we return to the common law rule of negligence and recognize statutory requirements as being merely a minimum standard. We overrule several prior cases. We also change an established rule of evidence and made evidence of prior similar accidents admissible. At page 363 of 239 Iowa, pages 123, 124 of 30 N.W.2d, we said: "This rule is neither based upon reason nor sound judgment and should not be persisted in." Without hesitation we again overruled prior decisions. In Stuart v. Pilgrim, 247 Iowa 709, 74 N.W.2d 212, this court changed completely the rule regarding liability of a nondriver owner of a motor vehicle. In doing so a long well established line of cases was overruled. At pages 713, 714 of 247 Iowa, pages 215, 216 of 74 N.W.2d this court states: "The problem before us now is whether more harm will be done by overruling our *618 previous cases in order to install what we think is clearly the correct principle, or by adhering to an unsound decision in the interest of the rule of stare decisis. It is of the greatest importance that the law should be settled. Fairness to the trial courts, to the legal profession, and above all to citizens generally demands that interpretations once made should be overturned only for the most cogent reasons. The law should be progressive; it should advance with changing conditions. But this does not mean that its forward progress should be over the dead bodies of slain and discarded precedents. Legal authority must be respected; not because it is venerable with age, but because it is important that courts, and lawyers and their clients, may know what the law is and order their affairs accordingly. "We have concluded here, however, that more mischief will be done by adhering to the precedent established in the Secured Finance Company case than by overruling. It proceeds upon a wrong principle, built upon a false premise, and arrives at an erroneous conclusion. It is of course incumbent upon us to make clear our reasons for so determining." (Emphasis added) In Haynes v. Presbyterian Hosp. Ass'n, 241 Iowa 1269, 45 N.W.2d 151, this court abrogates the doctrine of immunity of charitable institutions for negligence of its agents. Prior decisions were overruled. At pages 1273, 1274 of 241 Iowa, page 154 of 45 N.W.2d, we said: "Thus it is evident that times have changed and are now changing in the business, social, economic and legal worlds. The basis for, and the need of such encouragement is no longer existent. "The law's emphasis generally is on liability, rather than immunity, for wrongdoing. Charity is generally no defense. It is for the legislature, not the courts, to create and grant immunity. The fact that the courts may have at an early date, in response to what appeared good as a matter of policy, created an immunity, does not appear to us a sound reason for continuing the same, when under all legal theories, it is basically unsound and especially so, when the reasons upon which it was built, no longer exist." (Emphasis added) This last quote expresses exactly what I believe should be our views here. We need only to change "charity" to "governmental activity". In fairness to the able trial court it must be stated he, like each trial judge in our last three cited cases, was duty bound to follow precedent. It is our responsibility and duty to alter decisional law to produce common sense justice. As to our doctrine of governmental immunity we have already waited too long. I would join the vast majority of the other courts in abrogating it. I would reverse. HAYS, PETERSON and THORNTON, JJ., join in this dissent.

NO. 07-07-0014-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JANUARY 31, 2007 ______________________________ IN RE JOHANSON LEE WATSON, Relator _______________________________ Original Proceeding _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Pending before this court is the petition of Johanson Lee Watson for writ of mandamus. The document is somewhat vague; so, we will construe it in a liberal manner. In so construing it, we see that he wants us to order the “Judge of the 46th Judicial District Court of Wilbarger County Texas” (district court) “to act on the pending motion.” We deny the writ for several reasons. First, the nature of the motion goes unexplained, though Watson periodically refers to an application for writ of habeas corpus. Nor has he provided us with an appendix containing the “motion” at issue or any other documents pertinent to his request for mandamus relief. The rules of procedure obligate one seeking mandamus relief to accompany his petition with an appendix. TEX . R. APP. P. 52.3(j). The latter must include, among other things, a “certified or sworn copy of . . . [the] document showing the matter complained of.” Watson has not complied with this rule.  Second, a trial court cannot be found to have abused its discretion until the complainant establishes that it 1) had a legal duty to perform a non-discretionary act, 2) was asked to perform the act, and 3) failed or refused to do so. O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992). To the extent that Watson complains of the trial court’s failure to set aside his conviction, application of the foregoing rule would necessarily require him to illustrate that the trial court was aware of his request for and refused same. This he did not do. Moreover, the same analysis applies to any motion pending before the trial court filed by Watson. He has failed to illustrate that any of his motions have been presented to the trial court or that the court has refused to rule. Accordingly, the petition for writ of mandamus is denied. Brian Quinn Chief Justice 2 

114 B.R. 649 (1990) In re Paul W. GEIGER, Debtor. Margaret KAWAAUHAU and Solomon Kawaauhau, Plaintiffs, v. Paul W. GEIGER, Defendant. Bankruptcy No. 89-01062-BKC-DPM, Adv. No. 89-0154. United States Bankruptcy Court, E.D. Missouri, E.D. April 17, 1990. Michael K. Sheehan, St. Louis, Mo., for debtor/defendant. *650 Norman W. Pressman, St. Louis, Mo., for plaintiffs. A. Thomas DeWoskin, Trustee, St. Louis, Mo. James S. Cole, Asst. U.S. Trustee, St. Louis, Mo. MEMORANDUM OPINION DAVID P. McDONALD, Chief Judge. I. JURISDICTION This Court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334, 151, and 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a "core proceeding" pursuant to 28 U.S.C. § 157(b)(2)(I), which the Court may hear and determine. II. PROCEDURAL BACKGROUND The Debtor, Dr. Paul W. Geiger, filed his voluntary Chapter 7 petition on March 16, 1989. A Complaint To Determine Dischargeability Of Debt was filed by judgment creditors Margaret and Solomon Kawaauhau on June 23, 1989. Debtor's Answer To Complaint To Determine Dischargeability was filed with the Court on July 26, 1989. The Debtor also filed a Motion For Summary Judgment and its brief in support thereof on July 26, 1989. In response, creditors filed their Memorandum In Opposition To Debtor's Motion For Summary Judgment on August 22, 1989. A hearing was held on the Debtor's Motion For Summary Judgment on September 15, 1989, and at the request of the parties, the Court took the matter under submission. The Court, having examined the pleadings filed in this matter, having received and examined memoranda of law submitted by the parties in support of their respective positions, and being fully advised in the premises, makes the following Findings Of Fact and Conclusions Of Law. III. FACTUAL BACKGROUND On October 18, 1985, Margaret and Solomon Kawaauhau filed a medical malpractice case against Dr. Paul W. Geiger in Hilo, Hawaii alleging that Dr. Geiger's negligence injured Margaret Kawaauhau and gave rise to the injuries suffered by Solomon Kawaauhau, her husband. A jury trial was conducted in the Third Circuit Court for the State of Hawaii from February 23, 1987 to February 27, 1987. At the conclusion of the trial, the jury found that Dr. Geiger was negligent and held that his negligence was the legal cause of injury to the Plaintiffs. However, the jury reduced the award of special and general damages by 10%, finding Margaret Kawaauhau 10% contributorily negligent. No punitive damages were awarded. On March 25, 1987, a judgment against Dr. Paul W. Geiger was entered by the Honorable Ernest Kubota. The total judgment awarded in favor of Plaintiffs Margaret and Solomon Kawaauhau was in the amount of $355,040. IV. DISCUSSION AND ANALYSIS The Debtor's Motion For Summary Judgment raises two legal issues which his counsel contends preclude litigation of the creditors' Complaint To Determine Dischargeability and entitle the Debtor to a judgment as a matter of law. Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure, as incorporated by Bankruptcy Rule 7056. Rule 56(c) provides that summary judgment ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. FRCP 56(c). The Debtor asserts that no genuine dispute exists on any material fact because all facts necessary to determine the dischargeability of its debt were established in the prior state court proceeding. Therefore, the Debtor requests that the Court apply the principles of res judicata and collateral estoppel to preclude relitigation of facts establishing willful and malicious injury within the meaning of 11 U.S.C. § 523(a)(6). *651 In Brown v. Felsen, 442 U.S. 127, 139-40, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979), the Supreme Court concluded that the exclusive jurisdiction granted to bankruptcy courts to resolve questions of dischargeability under section 17(a) of the Bankruptcy Act prevented the application of claim preclusion — res judicata — to resolve questions of dischargeability. See, In re Garner, 881 F.2d 579, 581 (8th Cir. 1989), where the court found that the logic of the Brown decision also applied to issues arising under section 523(a) of the Bankruptcy Code, the provision which replaced section 17(a) of the Act. In Garner, the Eighth Circuit noted that issue preclusion — collateral estoppel — could still be applied in a later dischargeability proceeding. "`If, in the course of adjudicating a state-law question, a state court should determine factual issue using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court.'" Id., quoting, Brown, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. In determining whether issue preclusion is to be given effect, a number of bankruptcy courts have adopted a four point test. First, the issue sought to be precluded must be identical to the one in the prior action. Second, the issue must have been actually litigated in the prior action. Third, the prior determination must have resulted in a valid and final judgment. Finally, the determination of the facts for which preclusion is sought must have been necessary to the outcome. In re McQueen, 102 B.R. 120, 123 (Bankr. S.D.Ohio 1989); see also, In re Ross, 602 F.2d 604, 608 (3rd Cir.1979). In addition, the burden of proof required in the prior proceeding must be no less than that required to establish an exception to discharge under section 523(a). Garner, 881 F.2d at 581. A finding of willful and malicious conduct on the part of a debtor must be based on "clear and convincing evidence." See, e.g., In re Ikner, 883 F.2d 986, 989 (11th Cir.1989). In the underlying case, Judge Kubota applied Hawaii substantive law and instructed the jury as follows: The burden is on the plaintiffs to prove their claim by a preponderance of the evidence. To prove by a preponderance of the evidence means to prove that something is more likely so than not so. It means to prove by evidence which, in your opinion, convinces you that something is more probably true than not true. Transcript of Proceedings, p. 60 (Feb. 27, 1987). Therefore, the evidentiary standard employed at the prior proceeding does not satisfy the "clear and convincing" standard required under 11 U.S.C. § 523(a)(6). Nonetheless, the Debtor contends that the Plaintiffs are collaterally estopped from raising the issue of willful and malicious conduct because the jury award in Hawaii was premised on a finding of negligence. However, the Plaintiffs seek to except the Hawaii judgment from discharge pursuant to the terms of 11 U.S.C. § 523(a)(6) which employs an entirely different standard of culpability. Section 523(a)(6) provides that a debtor is not discharged from any debt for willful and malicious injury by the debtor to another entity. A review of the jury instructions and the special verdict form reveals that the issues of willfulness and maliciousness were not actually litigated or necessary to the jury determination. Therefore, the Court finds that the precise issue of whether the Plaintiffs' injuries arose from the willful and malicious conduct of the Debtor was not actually litigated in the Hawaii court. Accordingly, the Court finds that genuine issues of material fact exist on this issue and, holds that summary judgment in favor of Debtor-Defendant is not appropriate.

Order Michigan Supreme Court Lansing, Michigan May 25, 2010 Marilyn Kelly, Chief Justice 140040 Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman PEOPLE OF THE STATE OF MICHIGAN, Diane M. Hathaway, Plaintiff-Appellee, Justices v SC: 140040 COA: 290916 Kent CC: 00-005302-FC ERIC ROMAN POWELL, Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the October 2, 2009 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. May 25, 2010 _________________________________________ s0517 Clerk 

827 F.2d 769 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Federico ARAS, Petitioner-Appellant,v.UNITED STATES PAROLE COMMISSION et al., Respondents-Appellees. No. 87-5190 United States Court of Appeals, Sixth Circuit. August 24, 1987. ORDER 1 Before RALPH B. GUY, Jr. and BOGGS, Circuit Judges, and SUHRHEINRICH, District Judge.* 2 This pro se petitioner appeals from a district court's order dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. Sec. 2241. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and briefs submitted by the parties, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. 3 Petitioner failed to file objections within ten days of the date of service of the magistrate's report and recommendation, despite being specifically advised to do so. A party who does not file timely objections to a magistrate's report and recommendation after being advised to do so waives his right to appeal. Thomas v. Arn, ---- U.S. ----, 106 S.Ct. 466, 471 (1985); Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir. 1986); Wilson v. McMacken, 786 F.2d 216, 220 (6th Cir. 1986). 4 For this reason, this appeal is hereby dismissed. Rule 9(b)(5), Rules of the Sixth Circuit. * The Honorable Richard F. Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation

793 F.Supp. 273 (1992) UNITED STATES of America, Plaintiff, v. Paul SUMNER, Defendant. CR. A. No. 91-10056-01. United States District Court, D. Kansas. April 29, 1992. *274 Asst. U.S. Atty., D. Blair Watson, Wichita, Kan., for the Government. Daniel E. Monnat, Monnat & Spurrier, Wichita, Kan., Ronald P. Wood, Gates & Clyde, Overland Park, Kan., for defendant. MEMORANDUM AND ORDER THEIS, Senior District Judge. A number of motions are pending in this matter. The court held an evidentiary hearing on April 10, 1992. I. Motion to Suppress — Doc. 22 The defendant moves to suppress all evidence seized, all statements of the defendant, and all observations of law enforcement officers obtained during the search of certain real property owned by Dr. Ralph N. Sumner, M.D. (the defendant's father). The defendant makes the following arguments: (1) he has a reasonable expectation of privacy in the property, used by the entire family as a weekend and vacation home; (2) the officers trespassed on the curtilage of the property; (3) the "open fields" doctrine does not exist under Kansas law; and (4) any statements made were involuntary and not pursuant to a free, knowing and intelligent waiver of his rights. Dr. Ralph N. Sumner, M.D. (Dr. Sumner) testified at the hearing that he is the owner of the property where the marijuana was discovered growing on July 15 and 16, 1991. The property consists of 240 acres and is located approximately 3 2/3 miles east of the city of Fredonia, Kansas. Dr. Sumner testified that all of his children have keys and have free access to the property. The members of the Sumner family use the property as a weekend retreat. The Sumners swim, fish, hunt, entertain guests, and stay overnight at a trailer home located on the property. Access to the trailer or "cabin" area is via a gravel road leading from the county road at the Sumner's property line. The gravel road passes through three locked gates, the first of which is located just off the county road, and the third of which is located near the cabin area. The gates are posted with "No Trespassing" or "Private Property" signs. The cabin area (approximately four to five acres) is kept mowed. Located on this mowed or manicured area are the trailer, the storage shed, barbecue grills, picnic tables, and lawn furniture. Dr. Sumner testified that the vast majority of the family's time is spent on the manicured area, on the nearby pond, or on or near the gravel road which leads to the manicured area. Dr. Sumner also mows along the gravel road. Wilson County Deputy Sheriff Mike Barrow testified that he first met the defendant, Paul Sumner, on the date of Sumner's arrest, July 16, 1991. At that time, *275 Barrow was an officer with the Fredonia Police Department and had previously received information about cultivated marijuana growth on Dr. Sumner's property. Barrow had been on the property for the first time the day before, July 15, 1991. On July 15, 1991, Barrow and another officer went to the Sumner property to look for marijuana. They were dropped off on the county road that runs along the south edge of the Sumner property. The officers walked north through the neighboring property, following the west edge of the Sumner property. The officers eventually crossed over the fence (three or four strands of barbed wire) and onto the Sumner property. The officers followed a dry creekbed toward the pond. The officers then followed some trails in the grass which led to a plot of marijuana. Barrow testified that they found a plot of thirteen plants, which were approximately five feet nine inches in height. Barrow testified that they were on the Sumner property for about an hour and they never entered the gravel road or the manicured area. The next day, July 16, 1991, Barrow returned with two officers to get more information, including an accurate count of the number of marijuana plants growing on the property. The officers entered the property by the same route. The officers proceeded to the marijuana plants which had been discovered the day before. Barrow testified that he heard a motor start up over toward the pond. The officers proceeded around the pond toward the noise. The officers located Paul Sumner using a gas powered water pump to water a plot of marijuana plants with pond water. Barrow arrested Sumner. One officer remained at the scene to secure the area. Barrow and the other officer took the defendant to the manicured area, and took the defendant in the defendant's car to the police station. Defendant first argues that this is not an "open fields" case because the officers actually made warrantless entries onto the curtilage of the dwelling. Pursuant to Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), only the curtilage, not the surrounding open fields, warrants fourth amendment protection from unreasonable searches and seizures. The factors for determining the extent of a home's curtilage are: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139-40, 94 L.Ed.2d 326 (1987). The evidence at the hearing shows that marijuana plots were located some distance from the manicured area, with the nearest plot of marijuana being 60 yards away from the manicured area. No evidence was presented that the areas where the marijuana was located were used for any family activities. The residents had erected fences and no trespassing signs; however, the fence that the police officers crossed was only three or four strands of barbed wire. While the defendant's father testified that the family used the entire 240 acre area, the court must conclude that only the manicured area of approximately four or five acres constitutes the curtilage. That manicured area included the trailer home where the family slept, the barbecue and picnic areas, and the shed where equipment was stored. The area where the marijuana was found was apparently not used by the Sumners for any purpose. The evidence presented at the hearing indicates that the officers did not enter the curtilage area until after they had entered the open field, discovered defendant watering the marijuana and arrested him. Assuming next that the open fields doctrine would apply if this had been a federal investigation, the defendant next argues that the government cannot rely on this doctrine. Defendant argues that the open fields doctrine is not available under Kansas law and the search was conducted by state officers. Defendant argues that the law in the Tenth Circuit "seems to indicate" that state constitutional law applies in a federal prosecution to determine the *276 lawfulness of a search by state law enforcement officials. Federal standards govern the admissibility of evidence in federal criminal prosecutions. United States v. Glasco, 917 F.2d 797, 798 (4th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1120, 113 L.Ed.2d 228 (1991). The fact that state officers obtained evidence with no federal involvement does not alter the general rule. Id. at 798-99. "In determining whether evidence seized by state officials may be used against a defendant in a federal proceeding, the district court must determine the legality of the search and seizure as if federal officers had executed the search and seizure." United States v. Mealy, 851 F.2d 890, 907 (7th Cir.1988). The Courts of Appeals appear to be in agreement that evidence admissible under federal law cannot be excluded because it would be inadmissible under state law. See United States v. Pforzheimer, 826 F.2d 200, 204 (2d Cir.1987) (citing cases); United States v. Chavez-Vernaza, 844 F.2d 1368, 1372-74 (9th Cir.1987). The Tenth Circuit recently stated that when a search is state in character, it need only conform to federal constitutional requirements for the resulting evidence to be admissible in a federal prosecution; violation of state law would not render the evidence obtained inadmissible in federal court. United States v. Morehead, 959 F.2d 1489, 1497 (10th Cir.1992). The court must reject the defendant's argument that Kansas law should apply to the search in the present case.[1] Defendant next argues that he had a reasonable expectation of privacy in the area searched. This argument hinges on the court adopting the defendant's state law arguments, because there is no expectation of privacy in open fields. United States v. Oliver, 466 U.S. at 179, 104 S.Ct. at 1741-42. The court has rejected the defendant's argument that Kansas law controls. Consequently, even if Kansas law does not recognize the open fields doctrine,[2] defendant had no expectation of privacy in the area searched. Defendant's final argument is that any statements he made were involuntary. Defendant argues that he requested an attorney several times but was not allowed to obtain one. The testimony from the hearing establishes that the defendant was arrested at approximately 3:45 p.m. Defendant did not receive Miranda warnings until approximately 9:15 p.m. The defendant arrived at the Wilson County Jail around 5:00 p.m., was processed and placed in a cell around 5:45 p.m. The defendant was not allowed to make any telephone calls since the investigation was still ongoing. Defendant was advised of his Miranda rights and waived those rights in writing at 9:15 p.m. The defendant apparently made some statements at that time. From the evidence presented at the hearing, it appears that no interrogation occurred between the time the defendant was arrested and the time he received the Miranda warnings. No evidence was presented that the defendant requested an attorney. From the matters presently before the court, it appears that any statements the defendant made were not obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) or Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Defendant argued in his motion that he would present evidence at the hearing to establish his standing to contest the search. The court assumes standing and, for the reasons set forth above, denies the motion to suppress. II. Motion to Certify Question of Law to the Kansas Supreme Court — Doc. 24 Defendant seeks to certify the following question to the Kansas Supreme Court: *277 does the "open fields" doctrine of the Fourth Amendment to the United States Constitution apply in Kansas under Section 15 of the Kansas Bill of Rights? The defendant argues that the Kansas Bill of Rights forbids the application of the open fields doctrine to warrantless searches conducted by state officials. He argues that this court should apply the state exclusionary rule to such evidence. For the reasons set forth above in connection with the motion to suppress, Kansas law on the open fields doctrine is irrelevant to this federal prosecution. The motion to certify shall be denied. III. Brady Motion for Discovery of all Favorable Evidence of Defendant's Connection with Searched Premises and Items for Defendant's Motion to Suppress — Doc. 25 Defendant seeks discovery of any evidence the government may have that would indicate that the defendant possessed some interest in the real estate, was a guest or permitted user, or was otherwise connected with the real estate which was the subject of the search. Defendant argues that he needs the evidence to establish standing at the suppression hearing. The court has assumed that the defendant has standing, but has denied the motion to suppress. This motion is moot. IV. Motion to Compel Disclosure of Identity of Confidential Informant — Doc. 26 Defendant seeks the identity of the confidential informant who gave the Wilson County Sheriff's Office information regarding marijuana growing on the defendant's father's property. Defendant alleges that the confidential informant was acting on behalf of law enforcement officials. The government objects to disclosure of the identity, arguing that the defendant is merely speculating. Deputy Sheriff Barrow testified at the hearing that he had received information from two confidential informants. The first provided information to Barrow approximately in mid-May that there were areas of growing marijuana on the Sumner property. This first informant had apparently not been on the Sumner property. Barrow did not have time to pursue the information at that time, but he intended to pursue it later. The second informant provided information to Barrow in early July. This informant stated that Paul Sumner was growing marijuana on the property. This second informant stated that he/she had recently been on the property and had seen the marijuana plants growing around the pond. No law enforcement officers were with this second informant when he/she was on the Sumner property. This informant had not been directed by the authorities to enter the Sumner property. Barrow denied that either of the two informants were law enforcement officers. The evidence from the hearing indicates that the two informants were tipsters. They were not participants in or witnesses to the crime charged. The evidence sought from them would be merely cumulative. Their identities need not be disclosed. See United States v. Moralez, 908 F.2d 565, 567 (10th Cir.1990). V. Motion for Discovery — Doc. 27 The defendant seeks a number of items. The court will address each item or category of items in turn. Defendant is entitled to any statements made by him. The government shall provide copies or allow inspection of all tangible objects requested in paragraph 5 of defendant's motion. The government shall disclose the results of laboratory tests. The government is not required to disclose the requested information regarding the expert witness. The court need not order that the government has a continuing duty to disclose, since Fed.R.Crim.P. 16(c) imposes such a continuing duty. The court cannot order the government to disclose information which is not within the possession, custody or control of the government. Fed.R.Crim.P. 16(a)(1). VI. Motion for Leave to File Supplemental Motions — Doc. 29 Defendant seeks advance court approval to file additional motions after he *278 receives all requested discovery from the government. The government has responded that the defendant should seek leave to file any additional motions when and if he wants to file them. The court believes that a blanket prohibition against future defense motions would be constitutionally infirm. Due process requires that defendant be able to file additional motions when necessary. The court does not believe that prior court approval is required. VII. Motion for Discovery and Disclosure of Impeaching Information — Doc. 30 Rather than lengthen this opinion by discussing the defendant's requests and the government's response, the court shall merely set forth its rulings. The adult criminal records of government witnesses shall be disclosed. Prior misconduct or bad acts attributed to the witness need not be disclosed. All promises or consideration given to the witness shall be disclosed. Threats made to a witness, if any, shall be disclosed. Witness statements are protected by the Jencks Act, 18 U.S.C. § 3500. The government has agreed to provide these matters prior to trial. Testimony of any witnesses in other cases need not be disclosed. Personnel files of law enforcement witnesses shall not be disclosed. The defendant's request for anything else which could be helpful or useful to the defense in impeaching or detracting from the probative force of the government's evidence appears to fall within the category of Brady evidence and shall be disclosed, if the government has any such evidence. The request for the same evidence as to nonwitnesses shall be denied. All exculpatory evidence shall be disclosed. Information regarding other crimes committed by the defendant is Rule 404(b) evidence and shall be disclosed as provided below. VIII. Motion for Discovery of Rule 404(b) Evidence and for Hearing on 404(b) Evidence Outside the Presence of the Jury and in Limine — Doc. 32 Since Rule 404(b) now requires it, the government has agreed to disclose one week prior to trial any 404(b) evidence it might intend to introduce at trial. The government does not object to a hearing outside the presence of the jury before the introduction of such evidence. This motion shall be granted. IX. Motion for Production of Sentencing Guideline Material — Doc. 33 The court shall order disclosure of the defendant's criminal record, which is specifically required by Rule 16(a)(1)(B). The motion is otherwise denied. X. Motion for Disclosure of Pen Register and/or Wiretap Evidence — Doc. 34 The government states that it is not aware of the use of wiretaps or pen registers in this investigation. This motion shall be denied. IT IS BY THE COURT THEREFORE ORDERED that defendant's motion to suppress (Doc. 22) is hereby denied. IT IS FURTHER ORDERED that defendant's motion to certify question of law to the Kansas Supreme Court (Doc. 24) is hereby denied. IT IS FURTHER ORDERED that defendant's Brady motion for discovery of all favorable evidence of defendant's connection with the searched premises and items for defendant's motion to suppress (Doc. 25) is moot. IT IS FURTHER ORDERED that defendant's motion to compel disclosure of identity of confidential informant (Doc. 26) is hereby denied. IT IS FURTHER ORDERED that defendant's motion for discovery (Doc. 27) is hereby granted in part and denied in part. IT IS FURTHER ORDERED that defendant's motion for leave to file supplemental motions (Doc. 29) is hereby granted. IT IS FURTHER ORDERED that defendant's motion for discovery and disclosure of impeaching information (Doc. 30) is hereby granted in part and denied in part. *279 IT IS FURTHER ORDERED that defendant's motion for discovery of Rule 404(b) evidence and for hearing on Rule 404(b) evidence outside the presence of the jury and in limine (Doc. 32) is hereby granted. IT IS FURTHER ORDERED that defendant's motion for production of sentencing guideline material (Doc. 33) is hereby granted in part and denied in part. IT IS FURTHER ORDERED that defendant's motion for disclosure of pen register and/or wiretap evidence (Doc. 34) is hereby denied. NOTES [1] The court notes that a different rule applies in cases of warrantless arrests. In the absence of an applicable federal statute, the law of the state where a warrantless arrest occurs determines its validity even for federal crimes. United States v. Swingler, 758 F.2d 477, 487 (10th Cir.1985). [2] The Kansas Court of Appeals has ruled that open fields are not entitled to protection from searches and seizures under the Fourth Amendment to the United States Constitution or its Kansas counterpart, Section 15 of the Kansas Bill of Rights. State v. Tinsley, 16 Kan.App.2d 287, 823 P.2d 205 (1991).

103 F.3d 133 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Anthony JONES, also known as Tonya Star Jones, Plaintiff-Appellant,v.Charles BANKS, Correctional Officer, Defendant-Appellee. No. 95-3241. United States Court of Appeals, Seventh Circuit. Submitted Nov. 12, 1996.*Decided Nov. 22, 1996. Before MANION, ROVNER and DIANE P. WOOD, Circuit Judges. ORDER 1 Anthony Jones, a state prisoner acting pro se, sued Charles Banks, an Illinois Department of Corrections Officer, for violating his civil rights. Jones claimed that Banks allowed another prisoner, Cook, into his cell even though Banks knew Cook intended to harm Jones. The jury found in favor of Banks and the district court entered judgment. Jones filed several post-trial motions, as well as a motion for a free copy of the trial transcript. Each of these motions was denied by the district court, and Jones filed a timely notice of appeal on September 20, 1995. Although the district court granted Jones' motion to proceed on appeal in forma pauperis, Jones did not renew his motion for a free copy of the trial transcript in either the district court or this court. Thus, the appellate record does not include a trial transcript. 2 On appeal, Jones argues that the district court: (1) abused its discretion in not granting his motion for a continuance; (2) abused its discretion by allowing certain deposition testimony; (3) made improper statements during his closing argument; and (4) erred in denying his motion for a directed verdict. We affirm. 3 The burden is on an appellant to provide a reviewing court with a record sufficient to permit meaningful review. LaFollette v. Savage, 63 F.3d 540, 544 (7th Cir.1995); Stookey v. Teller Training Distrib., Inc., 9 F.3d 631, 635 (7th Cir.1993), cert. denied, 513 U.S. 839, 115 S.Ct. 122, 130 L.E.2d 67 (1994); Woods v. Thieret, 5 F.3d 244, 245 (7th Cir.1993). The reason is clear: a reviewing court must have the means to apply the relevant law to the specific facts of the case appealed. When the absence of a transcript precludes meaningful review, a court either may "dismiss the appeal or decide [the case] on the merits to the extent it is practical and possible." Fisher v. Krajewski, 873 F.2d 1057, 1061 (7th Cir.1989), cert. denied, 493 U.S. 1020 (1990). 4 Federal Rule of Appellate Procedure 10(b)(2) requires that "[i]f an appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion." Fed.R.App.P. 10(b)(2); see also LaFollette, 63 F.3d at 544. Failure to do so is grounds for dismissal. Fed.R.App.P. 3(a); LaFollette, 63 F.3d at 544. 5 The Rules also provide that within ten days of filing a notice of appeal, the appellant must order a transcript of such parts of the proceedings as he deems necessary to his appeal. Fed.R.App.P. 10(b)(1). If an appellant is unable to pay for the transcript, he may file a motion to proceed on appeal in forma pauperis, 28 U.S.C. § 1915, and if this motion is granted, the trial judge or a circuit judge may then grant a motion for a free transcript upon determining that the appeal is not frivolous. 28 U.S.C. § 753(f). There is no authority for a judge to grant a motion for a free trial transcript prior to the filing of a notice of appeal, and Jones' only request for a free transcript came prior to his filing a notice of appeal and before the district court granted his motion to proceed on appeal in forma pauperis. This motion was denied. Once he filed his notice of appeal and was allowed to proceed in forma pauperis, he did not renew his motion for a free transcript, nor did he request this court to provide one. 6 Here, Jones appeals several actions taken by the district court judge during the course of the trial. It is simply impossible to evaluate the merits of his argument, or even determine whether the issues raised were properly preserved for appeal absent a trial transcript. Likewise, Jones' challenge to the denial of his motion for a directed verdict must fail. The argument that there was no evidence upon which a reasonable jury could reach the verdict that it did cannot be evaluated in the absence of a transcript. See Fed.R.Civ.P. 50(a). 7 Jones argues that because he is a pro se plaintiff he should be held to a less stringent standard than counselled plaintiffs and that his appeal should not be dismissed on what he terms "procedural grounds." Although there is case law supporting Jones' argument for lenient treatment of pro se litigants' procedural errors in the trial court, see e.g., Casteel v. Pieschek, 3 F.3d 1050 (7th Cir.1993) (district court erred in dismissing pro se plaintiff's complaint for failure to state a claim, and should have allowed amendment instead), Castillo v. Cook County Mail Room Dep't, 990 F.2d 304, (7th Cir.1993) (district court erred in dismissing pro se plaintiff's claim on grounds he named unsueable entity as defendant), and although we have the authority to order that the record be supplemented with a transcript of the trial, we will not exercise that authority in a case such as this where it appears that Jones' appeal has little merit. 8 Therefore, the district court judgment is AFFIRMED. * After an examination of the briefs and the record, we have concluded that oral argument is unnecessary in this case, accordingly, the appeal is submitted on the briefs and the record. See Fed.R.App.P. 34(a), Cir.R. 34(f)

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 24 2001 TENTH CIRCUIT PATRICK FISHER Clerk ROLAND RUDD, Plaintiff-Appellant, v. BILL GRAVES, Governor of the State No. 01-3264 of Kansas; WILLIAM P. MAHONEY, (D.C. No. 01-CV-3067-GTV) Police Officer, Wichita Police (D. Kan.) Department; DONNA JEAN BUCKMAN, Police Officer, Wichita Police Department; and BOB KNIGHT, Mayor, Wichita, Kansas, Defendants-Appellees. ORDER AND JUDGMENT * Before EBEL, KELLY, and LUCERO, Circuit Judges. * After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.  On January 12, 2000, a Kansas jury found Mr. Ronald Rudd, the plaintiff- appellant, guilty of rape. Mr. Rudd is currently serving a prison sentence in Kansas for that crime. On March 20, 2001, Mr. Rudd filed a suit pursuant to 42 U.S.C. § 1983 in the United States District Court for the District of Kansas asserting that Wichita police officers arrested him in violation of his rights under the Fourth and Fourteenth Amendments. (Doc. 3.) Specifically, Mr. Rudd alleged “that the arresting officers did not reply to his question why he was under arrest.” (April 18, 2001 Order at 2; Doc. 4). Because his initial filing did not identify facts that would allow him to press a cognizable Fourth Amendment claim, the district court granted Mr. Rudd leave “to present any additional facts or arguments in support of his claim.” (April 18, 2001 Order at 3; Doc. 4) In an amended complaint, Mr. Rudd alleged two grounds for relief. First, he contended, as he had in his initial filing, that his Fourth Amendment rights were violated when the arresting officers failed to tell him why he was placed under arrest. Second, Mr. Rudd alleged that the police officers did not have probable cause to make an arrest. (August 1, 2001 Order at 1-2; Doc. 7.) The district court dismissed both claims. On August 5, 2001, Mr. Rudd filed a Notice of Appeal with this Court. (Doc. 12.) On September 7, 2001, he filed a brief with this Court, and on -2- September 10, 2001, he submitted a letter to this Court asking to supplement the record on appeal. In his appeal, Mr. Rudd reasserts that the arresting officers violated his Fourth Amendment rights by not explaining why he was placed under arrest, or even telling him that he was under arrest, until he was booked several hours later at the police station. He also renews his claim that he was arrested without probable cause. In addition, Mr. Rudd asserts, from the record, seemingly for the first time, that the district court did not have proper venue over the case. We find all of Mr. Rudd’s arguments to be frivolous and affirm the judgment of the district court. As to the venue claim, Mr. Rudd alleges venue was improper because his case was filed initially with the federal district court sitting in Wichita, then transferred to Topeka, and transferred from Topeka to Kansas City, Kansas. (Aplt. Br. at 1, 6.) Without offering any factual support, he asserts there is a “discriminatory practice in sending the prisoners’ cases to Kansas City, Kansas.” (Id. at 6.) Not only is Mr. Rudd’s venue claim without merit, see 28 U.S.C. § 1391(b), he has waived the issue by not properly raising it below. See FRCP 12(h)(1); 28 U.S.C. § 1406(b). Mr. Rudd’s claim that his constitutional rights were violated because police officers only told him the grounds for his arrest at the time he was “booked” is -3- also meritless. The Sixth Amendment only requires that a defendant be informed of the charges against him when “the government has committed itself to prosecution.” Kladis v. Brezek, 823 F.2d 1014, 1018 (7th Cir. 1987). The Fourth Amendment–the Amendment Mr. Rudd looks to for relief–does not require officers to tell a suspect the grounds for his arrest or even to expressly state that he is under arrest; rather, it requires that officers have probable cause before making an arrest. Dunway v. New York, 442 U.S. 200, 212-13 (1979) (finding the even though a defendant “was not told he was under arrest,” his seizure fell within the Fourth Amendment’s protection against “illegal arrests” and required a showing of probable cause to be justified); United States v. Davis, 197 F.3d 1048, 1051 (10th Cir. 1999) (“An arrest is a ‘seizure’ for Fourth Amendment purposes and is reasonable where there is probable cause to believe that an offense has been or is being committed.”); United States v. Young, 105 F.3d 1, 6-8 (1st Cir. 1997) (discussing how a stop that turns into a de facto arrest must be supported by probable cause); Kladis, 823 F.2d at 1018 (“[T]he Fourth Amendment requires only that the police have probable cause to believe that an individual has broken the law before arresting him.”). Finally, contrary to Mr. Rudd’s claim, the arresting officers had probable cause to make an arrest. “Probable cause exists where the facts and circumstances within the arresting officer’s knowledge and of which they had -4- reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to have the belief that an offense has been or is being committed by the person to be arrested.” United States v. Alonso, 790 F.2d 1489, 1496 (10th Cir. 1986). In this case, officers initially received a 911 dispatch indicating that a Roland Azlum committed the rape and giving a physical description of the assailant. While en route to the scene of the crime, at least one of the arresting officers received a subsequent radio dispatch indicating that the suspect was at the scene of the crime and that his name was Roland Rudd. Upon arriving, one officer encountered a male matching the description of the alleged assailant who identified himself as Roland Rudd. Inside the room where the rape occurred, another officer found a distraught young woman cowering under a sink and was told by another person present in the room that Mr. Rudd had raped the victim. Moreover, as the Kansas trial court explained, the victim feared Mr. Rudd. (Preliminary Exam Tr. at 25.) Such facts more than adequately show that probable cause existed for the arrest. For the forgoing reasons, we deem Mr. Rudd’s appeal frivolous, AFFIRM the district court’s rulings, and DENY Mr. Rudd’s motion to supplement the record on appeal. -5-  We also remind Mr. Rudd that although the district court granted his application to proceed without prepaying the appellate filing fee, he must continue making partial payments until the entire filing fee is paid. ENTERED FOR THE COURT David M. Ebel Circuit Judge -6- 

357 F.Supp. 853 (1973) UNITED STATES of America For the Use of R. Rudnick and Company, an Illinois corporation, v. DANIEL, URBAHN, SEELYE AND FULLER, a partnership, et al., No. 72 C 312. United States District Court, N. D. Illinois, E. D. April 12, 1973. *854 John M. Burke, Chicago, Ill., for plaintiff. James R. Thompson, U. S. Atty., by R. B. Schaeffer, Asst. U. S. Atty., Chicago, Ill., for defendants. MEMORANDUM OPINION and ORDER AUSTIN, District Judge. Plaintiff, a corporation engaged in the general construction business, brought this suit under the Miller Act, 40 U.S.C. § 270a et seq. There are four defendants, one a partnership, Daniel, Urbahn, Seelye and Fuller (hereinafter referred to as "DUSAF"), alleged to be composed of the other defendants, which are another partnership and two corporations. The complaint has previously been dismissed as to five other defendants and two others were granted summary judgment. The complaint alleges that DUSAF was the prime contractor for the United States and the Atomic Energy Commission (AEC) for the construction of proton beam enclosures at Batavia, Illinois.[1] Prior to submitting its bid, plaintiff examined the construction site and soil boring reports that were prepared by Soil Testing Services, Inc., (a previously dismissed defendant) and that were submitted by DUSAF in its "Invitation to Bid." Plaintiff alleges that based on its inspections and the soil boring reports it believed it would not encounter any unusual water conditions and determined the amount of its bid for the construction work accordingly. Its bid was accepted by DUSAF and after beginning performance plaintiff encountered an "unusual" amount of subsurface water, alleged to be an "unknown latent physical condition differing materially from those conditions usually encountered in work of this nature." *855 Plaintiff alleges that this condition falls within the provisions of two clauses of its contract with DUSAF that provide for an "equitable adjustment" of the contract by DUSAF; that it had increased costs of $497,559 as a result of the condition; that it demanded payment pursuant to the two contract clauses; and that DUSAF has refused to pay the additional costs. Pending before the court are two motions, plaintiff's motion to strike the appearance of the U. S. Attorney and DUSAF's motion, filed by the U. S. Attorney, to dismiss or in the alternative, for summary judgment. Motion to Strike the Appearance of the U. S. Attorney In the court file is a copy of a letter from the Assistant United States Attorney General, Civil Division, which acknowledges receipt of a letter from the AEC that presumably asked the government to take part in this lawsuit. In that letter the Assistant Attorney General told the AEC that he was asking the U. S. Attorney in Chicago to undertake the defense of this case. The U. S. Attorney filed, on behalf of DUSAF, the aforementioned motion to dismiss or for summary judgment. He did not, however, file an appearance on behalf of DUSAF, as he is required to do under Local Civil Rule 6(b). Given the present posture of the case, the U. S. Attorney's filing a motion on behalf of DUSAF will be considered as equivalent to filing an appearance and therefore plaintiff's motion to strike the appearance is appropriate. Plaintiff's contention is, in short, that because Miller Act suits are brought in the name of the United States, for the use of subcontractors, and because the purpose of the Act is to bestow a benefit upon subcontractors, it is inappropriate for the U. S. Attorney to represent a defendant contractor. The U. S. Attorney argues that because the contract between the AEC and DUSAF is a cost-plus-fixed-fee contract (CPFF),[2] under which the AEC will have to pay all of DUSAF's costs, the government has an interest in this case and under 28 U.S.C. §§ 516, 547 his appearance is proper. The issue of the propriety of the government appearing on behalf of a defendant contractor in a Miller Act case is apparently one of first impression.[3] Therefore, it is important to determine the intent of Congress in passing the Miller Act and the statutes enumerating the duties of U. S. Attorneys. Duties of the U. S. Attorney The U. S. Attorney relies upon 28 U. S.C. §§ 516 and 547 as giving him authority to represent the government's interest in this case, which means appearing on behalf of the contractor DUSAF. Section 547 provides in relevant part: Except as otherwise provided by law, each United States attorney, within his district shall . . . prosecute or defend, for the Government, all civil actions, suits or proceedings in which the United States is concerned. . . . Section 516 provides: Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved *856 to officers of the Department of Justice, under the direction of the Attorney General. While on their faces these statutes might seem to grant the U. S. Attorney such authority, an examination of the legislative history makes their scope less clear. Since § 547 is more clearly applicable to the instant case than § 516, its background will be examined first. The Judiciary Act of 1789 provided that a person should be appointed in each judicial district to act as attorney for the United States . . . whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned. . . . Act of Sept. 25, 1789, ch. 20, § 35, 1 Stat. 92. While on its face it would seem to provide that the district attorney (as he was known until 1948) would only prosecute criminal and civil actions, he in fact had much discretion in defending cases in which the government was concerned.[4] In 1863 Congress provided that it was the attorneys' duty to appear on behalf of all revenue officers, Act of Mar. 3, 1863, ch. 76, § 13, 12 Stat. 741 [now 28 U.S.C. § 547(3)], although earlier it had provided for payment to them when they defended any officers of the United States for acts done in the "lawful discharge of their duties." Act of Aug. 16, 1856, ch. 124, § 12, 11 Stat. 50.[5] The Supreme Court sanctioned district attorneys defending cases by interpreting the words "to prosecute all civil actions" as covering any case in which the district attorneys are employed to prosecute the interests of the government in any civil action, whether such interest be the subject of attack or of defense.[6] Thus, while the statute prescribing the duties of district attorneys in defending cases may have appeared to be limited in scope, it was not so interpreted by the courts and the Attorney General. The provision covering duties, which consisted of the original language of 1789 plus the 1863 addition covering defense of revenue officers, remained unchanged until 1948. [See 28 U.S.C. § 485 (1940)]. In that year Title 28 was revised, the purpose thereof being to create a "modern, workable" judicial code. 93 Cong.Rec. 8384 (1947) (Remarks of Representative Robison). The revision specificially denominated the attorney as the United States Attorney and in 28 U.S.C. § 507(a) (Supp. IV, 1950)[6a] provided; (a) It shall be the duty of each United States attorney, within his district, to: . . . . . . (2) Prosecute or defend, for the government, all civil actions, suits *857 or proceedings in which the United States is concerned. . . . Significantly, subsection (a)(2) contained the first statutory authorization for the U. S. Attorney to defend all civil actions in which the government was concerned. Presumably the revisers intended that the wording of the revision reflect the broad interpretation of the U. S. Attorney's duties by the courts and the Attorney General, yet there is no indication of that in either the Reviser's Notes, which accompanied the House Report, or the debate in Congress. The Reviser's Notes stated that the revision of the U. S. Attorney's duties merely changed the "arrangement and phraseology" and was a "consolidation" of prior law. H.R.Rpt. No. 308, 80th Cong., 1st Sess. A 60, 61 (1947), reprinted at 28 U.S.C.A. § 547 (1968). The only debate in Congress on the revision concerned the creation of the Tax Court. 93 Cong.Rec. 5049-50, 8384-92 (1947); 94 Cong.Rec. 7927-30, 8498-501 (1948). In 1949 Congress amended various parts of the revision in order to "correct minor typographical and clerical errors. . . ." 95 Cong.Rec. 5826 (1949) (Remarks of Senator O'Conor). Those involved in the revision may have realized that the U. S. Attorney's duties enumerated in the revision did not conform to the prior statutory law, because one of the amendments changed the first part of 28 U.S.C. § 507(a), which had read "It shall be the duty of each United States attorney. . . ." It was amended to read, "Except as otherwise provided by law, it shall be the duty of each United States attorney. . . ." Act of May 24, 1949, ch. 139, § 71, 63 Stat. 100. One of the purposes of the 1949 amendments was to clarify "the language of some sections to conform more closely to the original law, or to remove ambiguities" that had been discovered. H.R.Rpt. No. 352, 81st Cong. 1st Sess. 1 (1949). While neither the House Report nor floor debate[7] indicates the reason Congress made that particular amendment, it is not unreasonable to assume that "Except as otherwise provided by law" was added to conform the revision more closely to the original law. Thus, while courts, when faced with the question, have liberally construed the duties of U. S. Attorneys in appearing in cases in which the United States is "concerned,"[8] there is not much evidence that Congress intended to give them unlimited discretion to appear in any and all cases. A similar conclusion is reached when the background of the other provision upon which the U. S. Attorney relies, 28 U.S.C. § 516, is examined. That section, quoted in full above, provides that the conduct of litigation in which the United States is "interested" is reserved to the Department of Justice. That section was enacted in 1966 and was derived from 5 U.S.C. § 306 (1964), which was limited in scope to proceedings only in the Supreme Court and the Court of Claims and which provided, in relevant part: The officers of the Department of Justice, under the direction of the Attorney General, shall . . . procure the proper evidence for, and conduct, prosecute, or defend all suits and proceedings in the Supreme Court and in the Court of Claims, in which the United States, or any officer thereof, as such officer, is a party or may be interested. . . . *858 The purpose of the 1966 Act was to restate in comprehensive form, without substantive change, the statutes in effect before July 1, 1965, that relate to Government employees, the organization and powers of Federal agencies generally, and administrative procedure, and to enact title 5 of the United States Code. H.R.Rpt. No. 901, 89th Cong., 1st Sess. 1 (1965). The change was to merely rearrange the then existing law and the Senate Committee on the Judiciary rejected proposed amendments when they believed they "constituted a substantive change in existing law which is not within the concept of a codification." 112 Cong.Rec. 17010 (1966). In light of these intentions of Congress in passing this codification, § 516 should be strictly construed. That provision does not explicitly provide that officers of the Department of Justice may conduct any litigation in which they believe the government has any interest; it merely provides that if any is conducted, it shall be done by the Department of Justice.[9] Thus, the legislative history of 28 U. S.C. §§ 516 and 547 lend little support to the contention that the U. S. Attorney and the Department of Justice have discretion to defend any civil action in which they think the government might be interested. In light of this vague legislative history this court believes interpretation of those statutes must be made in light of the Miller Act. Although as previously noted, there is no reported case in point, the issue arises more than infrequently. The U. S. Attorney has filed with this court excerpts from the United States Attorneys' Manual (U.S. Department of Justice, June 1, 1970), which states that "frequently" the Department of Justice is asked to defend cost-plus contractors and in those cases it is in the interest of the Government to furnish legal representation for the contractor upon the request of the interested Government agency (most frequently the Departments of the Army, Navy, or Air Force, or the Atomic Energy Commission). Miller Act and its Background The predecessor of the Miller Act was the Heard Act. Act of Aug. 13, 1894, ch. 280, 28 Stat. 278. The reason for passage of the Heard Act was that many contractors constructing public buildings for the government were insolvent when entering into the contracts or at the completion of the work and because mechanics' and materialmen's liens were not provided for on public buildings, persons furnishing labor or material to the contractors were left without a remedy. The practice prior to the Act had been for the government to require contractors to post a bond for the protection of the United States and the law was passed to give those furnishing material and labor the right to sue on the bond. H.R.Rpt. No. 97, 53d Cong., 1st Sess. 1 (1893). Contractors were obligated to "promptly make payments" to those supplying material and labor and if they did not the latter were authorized to bring suit "in the name of the United States for his or their use and benefit. . . ." The Heard Act was amended in order to specify the procedure to be followed by those furnishing labor or materials to contractors (hereinafter referred to as subcontractors). Act of Feb. 24, 1905, ch. 778, 33 Stat. 811. They were given the right to "intervene and be made a party" in an action instituted by the government, though the government's interest had a priority over theirs. If the government instituted no action, six months after the "completion and final settlement" of the contract with the government, subcontractors could bring suit against the contractor. The suit had to be commenced within one year after *859 such completion; thus subcontractors had a six month period in which they could sue. The Heard Act was repealed by the Miller Act. 40 U.S.C. § 270a et seq., Act of Aug. 24, 1935, ch. 642, 49 Stat. 793. As previously noted, under the Heard Act subcontractors had to wait until six months after completion of all construction before they could sue, which on lengthy projects was often long after they had supplied labor and material. It was the "resultant hardships" caused by this delay that the Miller Act sought to prevent. H.R.Rpt. No. 1263, 74th Cong. 1st Sess. 1 (1935). One of the hardships was that subcontractors were often forced to accept compromises of their claims: [I]t appears that claimants frequently find themselves under the necessity of choosing whether they will wait for years for their money or accept compromises which, if they do not involve greater loss, at least destroy the profitableness of the contract. Those in financial stringency, of course, have no choice but the latter alternative. H.R.Rpt. No. 1263, 74th Cong., 1st Sess. 2 (1935). Also, bad faith on the part of contractors, already noted as one of the reasons for passage of the Heard Act, was still a problem. Senator Walsh stated, the investigations conducted by the subcommittee of the Committee on Education and Labor showed a deplorable condition with reference to the way employees on public buildings were defrauded and cheated of their wages, and any measure that will tend to strengthen their rights and help them to secure their compensation is justified. 79 Cong.Rec. 13383 (1935). The significant changes in procedure created by the Miller Act were that its provisions applied to contracts exceeding $2,000; a contractor had to provide two bonds instead of the previous one, one a performance bond for the benefit of the government and the other a payment bond for the benefit of subcontractors; and instead of having to wait until six months after completion and final settlement of the contractor's contract with the government, subcontractors could sue 90 days after the last day on which they supplied labor or material. The provision of the Heard Act that suit could not be commenced after the expiration of one year after the date of final settlement was retained. Plaintiff's arguments are that the U. S. Attorney's appearance is improper because the purpose of the act is to protect subcontractors, because the lawsuit is brought in the name of the United States, and because allowing him to appear would set a precedent enabling general contractors to deny claims brought on behalf of subcontractors knowing that the government will defend them at the cost of the taxpayers. Plaintiff is well founded in arguing that the purpose of the act is to protect subcontractors. In interpreting the Heard Act, the Supreme Court said it was committed to the doctrine that it should be liberally construed in aid of the evident public object—security to those who contribute labor or material for public works. Standard Accident Insurance Co. v. United States for Use and Benefit of Powell, 302 U.S. 442, 444, 58 S.Ct. 314, 315, 82 L.Ed. 350 (1938). Further, Congress in passing the Heard Act evidenced a concern that the government incur no expense in suits by subcontractors against contractors. The statute explicitly provided that "such action and its prosecutions shall involve the United States in no expense." Act of Aug. 13, 1894, ch. 280, 28 Stat. 278. The Miller Act retained the provision that "[t]he United States shall not be liable for the payment of any costs or expenses of any such suit." 40 U.S.C. § *860 270b(b). Moreover, the time period for suing after the work was completed by subcontractors was shortened so that they would not have to compromise their claims for fear of having to wait a long time to collect their money by suit. H. R.Rpt. No. 1263, 77th Cong., 1st Sess. 2 (1935). If, because of the CPFF contract, contractors can always count on the government defending them in a lawsuit or at least paying expenses, then they have no incentive to make an equitable compromise of a subcontractor's claim.[10] Also, subcontractors, knowing that they would have to pay litigation expenses while contractors would not, would probably feel pressure to settle their claims for less than they might otherwise. What complicates the issue is that at the time the Miller Act was passed almost all government construction was based on fixed price contracts rather than CPFF contracts. S.Rpt. No. 366, 84th Cong., 1st Sess. 2 (1955). As a result, the provision that the government not be liable for costs of the suit, 40 U. S.C. § 270b(b), makes little sense today when the government contractually agrees to bear the burden of the contractor's litigation expenses.[11] The plaintiff has not named as a defendant the AEC or otherwise challenged the validity of that contractual obligation undertaken by the AEC. Since that obligation has not been challenged this court must assume its validity and in light of that plaintiff's argument has little merit. Given the government's contractual obligation to pay litigation expenses, it would probably make little difference to a contractor whether he hires his own counsel or the U. S. Attorney appears for him. Either way, the government ends up paying the cost and either way there is no incentive for him to settle prior to litigation. The only real effect of not allowing the U. S. Attorney to appear probably would be to increase the ultimate cost to the taxpayers by having to pay the cost of private counsel rather than the cost of a government attorney. This court does not feel it is in the position to, and plaintiff has not argued it should, find illegal the government's practice of letting CPFF contracts that cover litigation expenses, in spite of its apparent inconsistency with the Miller Act provision that the government incur no expenses or costs. Even though the legislative history of the statutes enumerating the U. S. Attorney's duties is vague, sometimes the court's task is not to "inquire what the legislature meant [but to] ask only what the statute means."[12] Given the long history of courts allowing U. S. Attorneys to appear in cases in which there is a clear governmental interest and given the AEC's contractual obligation to reimburse URA, which in turn will reimburse DUSAF, here unchallenged by plaintiff, this court finds there is a sufficient governmental interest to allow the appearance of the U. S. Attorney on behalf of DUSAF. Motion to Dismiss or for Summary Judgment The contract between plaintiff and DUSAF has a disputes clause that provides in part: A. Except as otherwise provided in this Subcontract, any dispute concerning *861 a question of fact arising under this Subcontract which is not disposed of by agreement shall be decided by the Manager, Chicago Operations Office, Atomic Energy Commission, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Subcontractor. The decision of the Manager, Chicago Operations Office shall be final and conclusive unless within thirty (30) days from the date of receipt of such copy, the Subcontractor mails or otherwise furnishes to the Manager, Chicago Operations Office a written appeal addressed to the Commission, providing a copy to the Contractor. The decision of Commission or its duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. . . . B. This `Disputes' Article does not preclude consideration of law questions in connection with decisions provided for in Section A above: Provided, that nothing in this Subcontract shall be construed as making final the decision of any administrative official, representative, or board on a question of law.[13] The U. S. Attorney, on behalf of DUSAF, has moved to dismiss or in the alternative for summary judgment on the ground that by agreeing to the disputes clause plaintiff has waived its rights to sue under the Miller Act. Plaintiff contends that such a waiver must be explicit and that the language of the disputes clause is not sufficiently explicit. In Fanderlick-Locke Co. v. United States, 285 F.2d 939 (10th Cir. 1960), cert. denied, 365 U.S. 860, 81 S.Ct. 826, 5 L.Ed.2d 823 (1961), the court interpreted a subcontract provision that provided the subcontractor would be bound to the contract in the same manner as the contractor was bound to the government. The prime contract, but not the subcontract, contained a disputes clause similar to the one here in question. While expressing "no opinion as to the right of the parties to enter into an agreement which might circumvent the Miller Act," the court held that the parties had not intended that the subcontractor be required to comply with the disputes clause of the prime contract before it could maintain an action under the Miller Act. 285 F.2d at 942; accord, United States for Use of B's Co. v. Cleveland Electric Co., 373 F.2d 585 (4th Cir. 1970). The instant case is clearly distinguishable in that the disputes clause is explicitly set out in the subcontract itself, not incorporated therein by reference to the prime contract. This court finds, however, that plaintiff has not waived all of its Miller Act rights and therefore DUSAF's motion must be denied. The Heard and Miller Acts were intended to protect subcontractors against insolvent or unethical contractors. While there is no allegation that DUSAF is presently insolvent, it might have financial problems in the future. By then it might be too late for plaintiff to file suit.[14] Filing within the one year period is a condition *862 precedent to the right to maintain suit. United States for Use and Benefit of Statham Instruments, Inc. v. Western Casualty and Surety Co., 359 F.2d 521 (6th Cir. 1966); United States ex rel. Dover Elevator Co. v. General Insurance Co., 339 F.2d 194 (6th Cir. 1964). Not even arbitration will toll that requirement. United States for Use of Wrecking Corp. v. Edward R. Marden Corp., 406 F.2d 525 (1st Cir. 1969). If a subcontractor fails to file suit within one year after he has completed his work or delivered his supplies, he loses all his Miller Act rights. That includes his right to proceed against an insolvent contractor, and there is no allegation by DUSAF that plaintiff has waived that right. Moreover, it is not clear that the issue in this case does not involve a question of law, which would be subject to court review. See, e. g., United States for Use of White Masonry, Inc. v. F. D. Rich Co., Inc., 434 F.2d 855 (9th Cir. 1970). While plaintiff is not barred from filing this suit, it is barred from proceeding further until it exhausts its administrative remedies. It explicitly agreed to follow those procedures and it cannot now claim that it is not obligated to do so. At this point in the lawsuit it does not appear that requiring it to do so would be contrary to the purposes of the Miller Act. Thus, this court finds that plaintiff has not waived all its Miller Act rights and therefore this proceeding will be stayed pending the outcome of the disputes clause proceeding. Thereafter DUSAF may renew its motion to dismiss or for summary judgment if it believes plaintiff has no remaining Miller Act rights. Plaintiff's motion to strike the appearance of the U. S. Attorney is denied. DUSAF's motion to dismiss or for summary judgment is denied. Further proceedings in this case are stayed pending the resolution of the disputes clause proceeding before the AEC. NOTES [1] While the complaint alleges that DUSAF was the prime contractor, from copies of contracts submitted to this court it appears that DUSAF was actually a subcontractor under Universities Research Association, Inc. (URA) the prime contractor. In regard to the pending motions DUSAF has intentionally failed to deny it is the prime contractor and therefore this court will have to assume that it is. [2] Under this type of contract the subcontractor is reimbursed for allowable costs of actual performance plus a fee which is determined at the beginning of the work. Nash, Pricing Policies in Government Contracts, 29 Law & Contemp.Prob. 361, 365 n. 13 (1964). [3] Although not brought under the Miller Act, People ex rel. Kerner v. Keeney, 399 Ill. 611, 78 N.E.2d 252 (1948), involved the U.S. Attorney representing the defendant contractor who had a CPFF contract with the War Department. The court held that the trial judge may refuse the appearance of the U.S. Attorney "only when all of the facts are known to him and no reasonable doubt exists but that the United States has no direct interest in the outcome of the litigation." 399 Ill. at 616, 78 N.E.2d at 254. [4] The Attorney General interpreted the statute as requiring district attorneys to "appear in the federal courts of their respective districts in all cases in which the `United States shall be concerned.'" 8 Op.Attn'y Gen. 399 (1857) (emphasis added). [5] The Attorney General, noting that the law was "silent" as to the defense of officers other than those connected with the revenue, admitted that "it is every day's practice for district attorneys to defend them; and the same may be said in reference to cases in which the United States is interested but not a party to the record." 20 Op.Attn'y Gen. 235 (1891). [6] United States v. Smith, 158 U.S. 346, 354, 15 S.Ct. 846, 849, 39 L.Ed. 1011 (1895); accord, Colman v. United States, 66 F. 695, 699 (7th Cir. 1895). This interpretation was upheld even when put to the very persuasive argument of a district attorney that when the original statute was passed in 1789 the United States could not be sued in the district or circuit courts and therefore it was not contemplated that a district attorney would be called upon to defend the United States. Hilborn v. United States, 163 U.S. 342, 345, 16 S.Ct. 1017, 41 L.Ed. 183 (1896). [6a] Act of May 24, 1949, ch. 139, § 71, 63 Stat. 100. [7] 95 Cong.Rec. 3813-20, 5826, 6283-84 (1949). [8] Carter v. American Export Isbrandtsen Lines, Inc., 411 F.2d 1185 (2d Cir. 1969) (U.S. Attorney allowed to defend the lessee of a ship owned by the United States); United States for Use of Somers v. Winscott, 238 F.2d 519 (7th Cir. 1956) (U.S. Attorney allowed to appear on behalf of the clerk and a deputy clerk of the district court who were sued in regard to an alleged erroneous order.) [9] See S & E Contractors, Inc. v. United States, 406 U.S. 1, 12-15, 92 S.Ct. 1411, 31 L.Ed.2d 658 (1972) (where § 516 was interpreted in light of the Wunderlich Act and the court held the Department of Justice had no right to appeal from a decision of the AEC). [10] Another problem with CPFF contracts is "to greatly reduce the incentive to the contractor to utilize resources efficiently in the performance of the job." Accordingly, the Department of Defense has in the past tried to reduce the use of CPFF contracts. Nash, Pricing Policies in Government Contracts, 29 Law &. Contemp.Prob. 361, 365-366 (1964). [11] The language of the contract between URA and the AEC is identical to that of the subcontract between DUSAF and URA in regard to litigation expenses. Both contracts provide that litigation expenses including reasonable counsel fees are reimbursable by URA and, in turn, by the AEC. Both the subcontract and the contract provide that in the event the government defends a lawsuit, DUSAF and URA, respectively, shall assist in asserting a defense. [12] Holmes, The Theory of Legal Interpretation, 12 Harv.L.Rev. 417, 419 (1899). [13] This provision is identical to the one in the subcontract between DUSAF and URA and the one in the contract between URA and the AEC. [14] Some contractors have been known to stall as long as possible in making payments to subcontractors. When that occurs, a subcontractor may be forced to file suit. Easterwood, Miller Act Problems, 16 Fed.Bar J. 264, 267-268 (1956).

968 A.2d 792 (2009) COM. v. KENDALL. No. 1129 EDA 2008. Superior Court of Pennsylvania. January 12, 2009. Quashed.

36 F.3d 1439 UNITED STATES of America, Plaintiff-Appellant,v.Raymond D. CHEELY, Jr.; Douglas P. Gustafson, Defendants-Appellees. Nos. 92-30257, 92-30504. United States Court of Appeals,Ninth Circuit. Argued and Submitted August 6, 1993.Decided April 11, 1994.Amended Oct. 3, 1994. Wevley William Shea, U.S. Atty., District of Alaska, Anchorage, AK, James S. Reynolds, Dept. of Justice, John F. De Pue, Dept. of Justice, Mark H. Bonner, Asst. U.S. Atty., Mary Incontro, Tammy Haimov, Dept. of Justice, Washington, DC, for plaintiff-appellant. Nancy Shaw, Federal Public Defender, Anchorage, AK, Richard Kammen, McClure, McClure & Kammen, Indianapolis, IN, James H. McComas, Schleuss & McComas, Richard H. Friedman, Friedman & Rubin, Rich Curtner, Asst. Public Defender, Anchorage, AK, for defendants-appellees. Appeal from the United States District Court for the District of Alaska. Before: SCHROEDER, FLETCHER, and ALARCON, Circuit Judges. 1 Opinion by Judge FLETCHER; Concurrence and Dissent by Judge ALARCON. ORDER 2 Although no petition for rehearing was filed, and no request for en banc rehearing was made by the parties, a member of the court requested en banc rehearing of this appeal. The request was put to a vote of all active non-recused judges. The request did not secure the required majority vote of the active non-recused members of the court. 3 The panel, of its own motion, called for supplemental briefs on the possible effect of the Supreme Court's decision in Davis v. United States, --- U.S. ----, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) on its affirmance of the district court order to suppress Cheely's statements to postal inspectors. It now, by this order, reaffirms its holding but modifies the opinion, United States v. Cheely, 21 F.3d 914 (9th Cir.1994): 4 No petition for rehearing will be entertained. The mandate shall issue forthwith.OPINION FLETCHER, Circuit Judge: 5 The government brings an interlocutory appeal to challenge the district court's pretrial rulings that (1) Cheely cannot be subjected to the death penalty, and (2) Cheely's statements to investigating postal inspectors are inadmissible at trial because his Miranda rights were violated. We affirm. PROCEDURAL HISTORY 6 Before the commencement of trial, the district court directed the parties to address the applicability of the capital punishment provisions of the relevant federal statutes. It did this because several procedures different from those for an ordinary criminal trial would be implemented were this a death penalty case. For example, Cheely would be entitled to extra peremptory challenges if the offenses for which he is charged are "punishable by death," Fed.R.Crim.P. 24(b), and he would also be entitled to have two attorneys represent him. 18 U.S.C. Sec. 3005 (1988). The government, on the other hand, would be allowed to seek a "death qualified" jury, one free of jurors so absolutely opposed to the death penalty that they would not impose it regardless of the strength of the government's case. Cf. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). 7 The district court had jurisdiction under 18 U.S.C. Sec. 3231 (1988). It decided that the capital sentencing provisions under which Cheely was charged were unconstitutional, and that Cheely's statements to the postal inspectors should be suppressed. We have jurisdiction to hear the government's timely filed appeal of both issues. The provisions of 18 U.S.C. Sec. 3731 (1988) are "intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Woolard, 981 F.2d 756, 757 (5th Cir.) (finding jurisdiction under Sec. 3731 to review district court's order striking death as a permissible punishment for violation of 18 U.S.C. Secs. 2, 1111, 1114), reh'g en banc denied, 990 F.2d 819 (5th Cir.1993);1 United States v. Dominguez-Villa, 954 F.2d 562, 564 (9th Cir.1992) (government may appeal adverse ruling on suppression motion). DISCUSSION I. Challenge to the Death Penalty A. Factual Background 8 In 1991, Cheely and Gustafson2 were convicted of Jeffrey Cain's murder. George Kerr, a key witness at the trial, testified that he was in the car with Cheely and Gustafson when they shot and killed Cain. The indictment on which Cheely and Gustafson currently await trial alleges that, after their convictions for the Cain homicide, they devised plans to kill Kerr and others who participated in the trial. From behind bars, Cheely and Gustafson allegedly instructed Gustafson's older brother and sister in the construction of a mail bomb, which they directed be mailed to Kerr's Post Office box in Chugiak, Alaska. Kerr's parents, who were collecting his mail while he was out of the state, opened the box containing the mail bomb. David Kerr, George's father, was killed. Michelle Kerr, George's mother, was seriously injured. Cheely, Gustafson, and Gustafson's siblings were subsequently indicted for, among other things, the mail bomb murder of David Kerr. 9 B. Constitutionality of Capital Sentencing Provisions 10 We first consider Cheely's constitutional challenge to the capital provisions under which he was charged, 18 U.S.C. Secs. 844(d) and 1716(a) (1988). A challenge to the constitutionality of capital statutes presents a question of law; we review de novo the district court's resolution of this question. McKenzie v. Risley, 842 F.2d 1525, 1538 (9th Cir.) (en banc), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). 1. Death Penalty Jurisprudence 11 Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), "sentencing juries had almost complete discretion in determining whether a given defendant would be sentenced to death." Johnson v. Texas, --- U.S. ----, ----, 113 S.Ct. 2658, 2664, 125 L.Ed.2d 290 (1993).3 Furman held that a death sentence imposed by a jury exercising unbridled discretion as to whether death should be the penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Capital punishment is unconstitutional when it is "wantonly and ... freakishly imposed," Furman, 408 U.S. at 310, 92 S.Ct. at 2763 (Stewart, J., concurring), pursuant to statutes that provide "no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." Id. at 313, 92 S.Ct. at 2764 (White, J., concurring); see also Gregg v. Georgia, 428 U.S. 153, 196 n. 47, 96 S.Ct. 2909, 2936 n. 47, 49 L.Ed.2d 859 (1976) ("[W]here the ultimate punishment of death is at issue a system of standardless jury discretion violates the Eighth and Fourteenth Amendments.") (Stewart, Powell, and Stevens, JJ); Woodson v. North Carolina, 428 U.S. 280, 302, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976) ("Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments.") (Stewart, Powell, and Stevens, JJ, concurring). 12 The post-Furman death penalty jurisprudential framework can be quickly sketched. See Blystone v. Pennsylvania, 494 U.S. 299, 308-09, 110 S.Ct. 1078, 1084, 108 L.Ed.2d 255 (1990) (quoting McCleskey v. Kemp, 481 U.S. 279, 305-06, 107 S.Ct. 1756, 1774, 95 L.Ed.2d 262 (1987)). Beyond the threshold requirement that death must be a penalty proportionate to the crime for which the defendant is convicted,4 a statute that includes capital punishment as a possible penalty (1) must "genuinely narrow the class of persons eligible for the death penalty and ... reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder," Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983), and (2) must not "prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or character or to the circumstances of the offense that mitigate against imposing the death penalty." Penry v. Lynaugh, 492 U.S. 302, 318, 109 S.Ct. 2934, 2946-47, 106 L.Ed.2d 256 (1989). 13 The Court noted in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), that the requisite narrowing could be accomplished in one of two ways: either "[t]he legislature may itself narrow the definition of capital offenses ... so that the jury finding of guilt responds to this concern,"5 or "the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase." Lowenfield, 484 U.S. at 246, 108 S.Ct. at 555.6 14 2. Constitutionality of Secs. 844(d) and 1716(a) 15 The statutory provisions under which the government seeks the death penalty for Cheely are as follows: Sec. 844. Penalties 16 .... 17 (d) Whoever transports or receives, or attempts to transport or receive, in interstate commerce or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, shall be imprisoned for not more than ten years, or fined not more than $10,000, or both; and if ... death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment as provided in section 34 of this title.7 18 18 U.S.C. Sec. 844(d) (1988). 19 Sec. 1716. Injurious articles as nonmailable 20 (a) [A]ll explosives, inflammable materials, infernal machines, and mechanical, chemical, or other devices or compositions which may ignite or explode, ... are nonmailable matter and shall not be conveyed in the mails.... 21 .... 22 Whoever knowingly deposits for mailing or delivery, or knowingly causes to be delivered by mail, ... anything declared nonmailable by this section, whether or not transmitted in accordance with the rules ... with intent to kill or injure another, or injure the mails or other property, shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. 23 Whoever is convicted of any crime prohibited by this section, which has resulted in the death of any person, shall be subject also to the death penalty or to imprisonment for life, if the jury shall in its discretion so direct.... 24 18 U.S.C. Sec. 1716(a), undesignated paragraphs following (i) (1988). 25 These provisions authorize the death penalty not only for persons who murder by means of mail bomb, but also for a much broader class of less culpable persons. Because these provisions require only an intent to damage property, transmission of explosive or inflammable material through the mail, and a resulting death, they are broad enough to authorize death for persons guilty of no more than involuntary manslaughter. Suppose, for instance, one person mails another an explosive or inflammable substance in furtherance of a joint plan to blow a crater in the local college's football field, to protest the ascendancy of athletics over academics. If for any reason the substance accidentally explodes while en route,8 and a person dies as a result, both conspirators could be sentenced to death. 26 This scenario raises at least two constitutional problems. First, in such circumstances the death penalty would be disproportionately severe.9 Cheely is not in a position to advance this argument, however, as he is charged with the intentional murder of David Kerr.10 27 Second, under the statute one jury could sentence the football field bombers to death, while another could reject the death penalty in a case where a paid assassin successfully used a mail bomb to murder an NAACP leader. The prospect of such "wanton" and "freakish" death sentencing is intolerable under Furman and the cases following it. The constitutional defect in sections 844(d) and 1716(a) is that they create the potential for impermissibly disparate and irrational sentencing because they encompass a broad class of death-eligible defendants without providing guidance to the sentencing jury as to how to distinguish among them.11 28 The gravamen of the government's argument, and that of the dissent, is that in defining the death-eligible conduct these sections sufficiently narrow the class of death-eligible persons, and thus that no further guidance to the jury is required. Given the potential for such extreme disparities as those between the football field bombers and the NAACP assassin, we cannot agree.12 In evaluating sections 844(d) and 1716(a), we do not find the requisite statutory narrowing that the Court found adequate in Lowenfield and Jurek. 29 In Lowenfield and Jurek, the Supreme Court upheld the capital sentencing schemes of Louisiana and Texas. These schemes authorized the death penalty if the jury found the defendant guilty of murder under particularly aggravated circumstances. Specifically, death was authorized where the defendant murdered certain types of persons (e.g., children, police officers, prison guards), where the murder was committed with a particularly heinous state of mind (e.g., with intent to kill more than one person, as a paid assassin, or in the course of torture), or where the murder was committed in the course of an aggravated felony. See Lowenfield, 484 U.S. at 242-43, 108 S.Ct. at 553-54; Jurek, 428 U.S. at 265-66, 96 S.Ct. at 2953-54; see also Gregg, 428 U.S. at 165-66, 96 S.Ct. at 2921-22 (aggravating circumstances in Georgia's capital sentencing scheme); McKenzie, 842 F.2d at 1538 n. 26 (aggravating circumstances in Montana's capital sentencing scheme). 30 The statutory scheme approved in Gregg was different from those in Jurek and Lowenfield but it achieved the same result: by first marking out a broad category of murderers, and then authorizing the jury to impose death only upon certain, well-defined subclasses involving highly aggravating factors, the scheme avoided the possibility of arbitrary sentencing abhorred in Furman. In contrast, sections 844(d) and 1716(a) neither require the jury to find any of the aggravating factors present in Gregg, nor account for these factors directly in their definitions of death-eligible conduct, as did the statutes in Jurek and Lowenfield. Indeed, these sections do not even restrict their focus to murderers, but rather sweep within their coverage those guilty of no more than involuntary manslaughter.13 31 The government argues that these sections genuinely narrow the class of death-eligible persons because they authorize the death penalty only for those relatively few persons who use mail bombs.14 This argument reveals a fundamental misunderstanding of the caselaw. Narrowing is not an end in itself, and not just any narrowing will suffice. The narrowing must be such that it forecloses the prospect of the cruel and unusual punishment from "wanton or freakish" imposition of the death penalty. When juries are presented with a broad class, composed of persons of many different levels of culpability, and are allowed to decide who among them deserves death, the possibility of aberrational decisions as to life or death is too great. The statute before us is unconstitutional because it utterly fails to foreclose this prospect. 32 The dissent argues at some length that because Congress can legislate only in respect to federal crimes, and must therefore focus on murder by mail bomb rather than murder generally, the requisite narrowing has been accomplished by virtue of the statute's limited jurisdiction. Dissent at 1455-57. We disagree. Surely, the death penalty cannot be imposed for any and every intentional act which is susceptible to federal legislative jurisdiction and which results in a death. Whether statutes are state or federal, in narrowing the class of death-eligible defendants, they must focus on the type of aggravating factors described in Lowenfield, Jurek, and Gregg, not on mere jurisdictional prerequisites.15 33 The government also argues that sections 844(d) and 1716(a) are like the capital sentencing provisions in Jurek and Lowenfield in that they narrow the class of death-eligible persons to those who cause "a risk of death or great bodily harm to more than one person," and to those who kill a public official. Appellant's Opening Brief at 25. However, these factors have been held to adequately "narrow[ ] the class of death-eligible murderers," not a broader class of those who may be guilty of murder or involuntary manslaughter. Lowenfield, 484 U.S. at 246, 108 S.Ct. at 555 (emphasis added). Moreover, sections 844(d) and 1716(a) do not in fact require a finding of risk to more than one person, reckless disregard for human life,16 or the death of a public official. Again, these sections are nothing like the capital sentencing provisions upheld in Jurek and Lowenfield. 34 Finally, we also agree with Cheely's contention that United States v. Harper, 729 F.2d 1216 (9th Cir.1984), cuts against the government's claim that sections 844(d) and 1716(a) are sufficiently narrow because they limit their focus to homicides that result from the mailing of prohibited materials. In Harper, we held unconstitutional the capital sentencing provision of the Espionage Act, 18 U.S.C. Sec. 794(a) (1982).17 Cheely persuasively contends that "[i]f the provision of potential capital consequences ... in the Espionage Act is unconstitutional, as the Harper court held ... then, a fortiori"--because "[i]t is difficult to conceive of an offense category more narrow than espionage"--the death penalty provisions of Secs. 844(d) and 1716(a) must also be unconstitutional. Appellee's Brief at 32.18 35 We affirm the district court's determination that the death penalty provisions in 18 U.S.C. Secs. 844(d) and 1716(a) are unconstitutional because they do not "genuinely narrow the class of persons eligible for the death penalty," Zant, 462 U.S. at 877, 103 S.Ct. at 2742, and because they set the stage for capital punishment which may be "wantonly and ... freakishly imposed." Furman, 408 U.S. at 310, 92 S.Ct. at 2763 (Stewart, J., Concurring).19 II. Motion to Suppress Evidence A. Factual Background 36 On September 20, 1991, three days after the mail bomb explosion, postal inspectors Glenn Porter and David Hertle visited Cheely at the Cook Inlet Pretrial Facility in Anchorage, where Cheely is serving a sixty-year sentence in the state prison system for the murder of Jeffrey Cain. 37 Porter and Hertle were among the postal inspectors detailed to execute a warrant to search Cheely's person, his property, and his cell for evidence pertaining to the Kerr bombing,20 and to interview him regarding the incident. After conducting the search, Porter and Hertle advised Cheely that they wanted to talk to him. Cheely responded that he had been expecting them. The inspectors next advised Cheely of his rights, utilizing a "Form 1067" with a "warning" section identical in all material respects to the "advice of rights" form approved in United States v. Fouche, 833 F.2d 1284, 1286 n. 2 (9th Cir.1987) ("Fouche II" ), cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988). 38 Cheely acknowledged that he understood his rights and signed on a line directly beneath the warning section. Form 1067 also includes a "waiver" section, which reads: "I am willing to discuss subjects presented and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me." Cheely declined to sign the waiver. 39 The two inspectors' versions of what transpired next are consistent. Porter: 40 Q [by the prosecutor] Did [Cheely] say anything with regard to declining to sign the waiver portion of the form? 41 A He did tell us that he--his attorney had advised him not to talk to us. 42 Q What did you say, if anything, at that point? 43 A We asked him, with that being the case, did he want to talk to us about the--about the case, and he told us that he appreciated us coming down to talk to him. He also told us that he had tried to talk to the Anchorage Police Department when this thing went down back in October of '90. Hertle: 44 Q [by the prosecutor] What about the waiver portion of [Form 1067], on the bottom. Just tell us what happened with regard to that. 45 A [Cheely] told me that he didn't think he need--he told me that he didn't think he wanted to sign that. 46 Q Well, did you read it to him? 47 A I read him the waiver, yes. 48 Q And then what happened after you read it to him? Did you ask him anything? 49 A Well, he told me that he didn't think his attorney would want him talking to us, and I said to him, 'With that in mind, would you still want to talk with us?' 50 Q What did he say? 51 A He said he sure--he said he appreciated the postal inspectors coming to visit with him, and then he started to tell us, back in October of 1990, that he'd wanted to talk to Anchorage Police Department regarding the homicide case at that time, and they refused to talk to him. 52 During the initial stages of the interview, Inspector Porter took notes. Porter testified that, when Cheely realized notes were being taken, "once again he said that his attorney had advised him not to talk to us, ... and he was concerned about my taking notes." Hertle, in his testimony, does not mention the second reference by Cheely to his attorney's advice, recalling merely that Cheely told them that "[h]e would be comfortable to continue the conversation as long as we were not taking notes of that conversation." Porter stopped taking notes at that point. The "conversation," during which Cheely asked the inspectors several questions, lasted approximately two hours. The government acknowledges that although Cheely did not confess, he made several incriminating statements. B. Analysis 53 The essential facts underlying the district court's decision to suppress Cheely's September 20, 1991 statements are not in dispute. We review the district court's legal conclusion that there was no waiver and that Cheely's Miranda rights were violated de novo. See United States v. Homick, 964 F.2d 899, 903 (9th Cir.1992). 54 As an initial matter, it is clear that the inspectors' "conversation" with Cheely was a custodial interrogation. In Cervantes v. Walker, 589 F.2d 424 (9th Cir.1978), this court characterized Mathis v. United States, 391 U.S. 1, 4-5, 88 S.Ct. 1503, 1505, 20 L.Ed.2d 381 (1968), as deciding that Miranda warnings were required where a prisoner was questioned "by a government agent, not himself a member of the prison staff, on a matter not under investigation within the prison itself" because that questioning "constituted an additional imposition on his limited freedom of movement." Cervantes, 589 F.2d at 428. Here, Cheely was interrogated and searched by postal inspectors executing a warrant and investigating a mail bomb murder that occurred outside the prison walls. He was taken from his cell at the Cook Inlet facility to a locked room, where he was strip searched and then questioned for two hours. This is, without a doubt, custodial interrogation. 55 Of course, Cheely does not necessarily invoke his rights simply by saying the magic word "attorney"; that word "has no talismanic qualities," and "[a] defendant does not invoke his right to counsel any time the word falls from his lips." United States v. Jardina, 747 F.2d 945, 949 (5th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1773, 84 L.Ed.2d 833 (1985). Similarly, an express written or oral waiver of the right to counsel "is not inevitably either necessary or sufficient to establish waiver." North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). 56 In combination, however, Cheely's written acknowledgment that he understood his rights, his refusal to sign the waiver portion of Form 1067, and his explanation of that refusal--my attorney does not want me to talk to you--amount to an invocation of his rights under Edwards v. Arizona. "[H]aving expressed his desire to deal with the [postal inspectors] only through counsel, [Cheely] is not subject to further interrogation by the authorities until counsel has been made available to him...." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). Cheely's continued response to questions from Porter and Hertle after invoking his right to counsel does not constitute waiver of the right. See Smith v. Endell, 860 F.2d 1528, 1529 (9th Cir.1988) (citing Edwards ), cert. denied, 498 U.S. 981, 111 S.Ct. 510, 112 L.Ed.2d 522 (1990). 57 Subsequent to the filing of the opinion in this appeal, the Supreme Court decided Davis v. United States, --- U.S. ----, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). We called for supplemental briefing from the parties as to the effect Davis might have on our conclusion that Cheely had unequivocally invoked his right to counsel and that the inspector's inquiry as to whether Cheely wanted to talk, despite his attorney's advice, was improper once Cheely invoked his right to counsel. We now reaffirm the district court's grant of Cheely's motion to suppress. The factual differences between the two cases are striking. Davis waived his right to counsel both orally and in writing. Cheely declined to waive his right to counsel either orally or in writing. Davis was interrogated for half an hour before he said, "Maybe I should talk to a lawyer." Asked if he were making a comment or asking for a lawyer, he responded, "No, I am not asking for a lawyer" followed by, "No, I don't want a lawyer." 58 In contrast to Cheely who unequivocally refused to waive his right to counsel, Davis unequivocally waived his right and then, after a period of questioning, equivocated as to whether he should ask for counsel and said he was not asking for counsel. The Davis court saw "no reason to disturb [the lower court's] conclusion" that "petitioner's remark to the NIS agents [ ] was not a request for counsel." 59 Id. at ----, 114 S.Ct. at 2357. We see no reason here to disturb the district court's conclusion that Cheely had invoked his right to counsel. 60 Finally, 18 U.S.C. Sec. 3501 (1988), which provides that a confession or "any self-incriminating statement" shall be admissible at trial if "voluntarily given," id. at Sec. 3501(a), (e), does not, as the government argues, trump Edwards. Cheely's statements were "unconstitutionally elicited after he had invoked his right[ ] to counsel ..., [and] it is [thus] irrelevant that [Cheely's] subsequent [incriminating statements] w[ere] voluntary." See Desire v. Attorney General, 969 F.2d 802, 805 (9th Cir.1992). CONCLUSION 61 The district court correctly determined that the death penalty provisions of 18 U.S.C. Secs. 844(d) and 1716(a) are unconstitutional. It also correctly granted Cheely's motion to suppress. 62 AFFIRMED. 63 ALARCON, Circuit Judge, concurring and dissenting: 64 The majority has concluded that Congress violated the Eighth Amendment by making punishable by death the intentional killing of a human being by sending a bomb through the United States mails. In reaching this result, the majority has ignored the presumption that "a punishment selected by a democratically elected legislature is constitutionally valid." Campbell v. Wood, 18 F.3d 662, 682, 1994 U.S.App. LEXIS 1964, at * 1964 (9th Cir. Feb. 8, 1994) (en banc). 65 I respectfully dissent because, in enacting sections 844(d) and 1716(a), Congress limited the death penalty to those who kill in a particularly appalling and heinous manner. As applied to Cheely, these statutes fully comply with the Eighth Amendment as interpreted by the Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). I. The Indictment 66 Cheely was indicted on April 14, 1992. The indictment alleges in Count 1 that 67 [o]n or about September 17, 1991, in the District of Alaska, defendants Raymond D. Cheely, Jr., Douglas P. Gustafson, Peggy Gustafson Barnett and Craig A. Gustafson knowingly and with intent to kill and cause injury to another, deposited for mailing and caused to be delivered by mail according to the direction thereon, a package addressed to George Kerr, Post Office Box 671091, Chugiak, Alaska, 99567, containing material which was nonmailable, to wit: explosives contained in a mail bomb designed to explode upon opening the package in which it was sent, which resulted in the death of Mr. David L. Kerr and in injury to Mrs. Michelle T. Kerr. 68 All of which is in violation of and contrary to Title 18, United States Code, Section 1716(a) and (2). Count 4 of the indictment charges that 69 [o]n or about September 13, 1991, in the District of Alaska, defendants Raymond D. Cheely, Jr., Douglas P. Gustafson, Peggy Gustafson Barnett and Craig A. Gustafson transported through the United States mails in interstate commerce an explosive contained within a package addressed to George Kerr, Post Office Box 671091, Chugiak, Alaska, 99567, said explosive being designed to detonate upon the opening of the package, with the knowledge and intent that the explosive would be used to kill, injure, and intimidate an individual, and which did, in fact, cause the death of Mr. David L. Kerr. 70 All of which is in violation of and contrary to Title 18, United States Code, Section 844(d). 71 Unlike the majority's negligent idealist whose sole goal was to damage a football field, Cheely is charged in Count 1 with sending an explosive device through the mails with the intent to injure and kill the person who opened the package. In Count 4, Cheely is charged with sending an explosive device intentionally designed to kill the recipient. The indictment in each count expressly alleges that Cheely acted with the intent to kill another human being. Our responsibility in this case is to determine whether the death penalty can be applied to a person who committed the crime described in the indictment. 72 II. The Presumptive Constitutional Validity of Sections 844(d) and 1716(a) 73 The majority correctly explains that we cannot defer to the trial judge's interpretation of the Eighth Amendment, nor to the district court's determination that Congress exceeded its constitutional powers in enacting sections 844(d) and 1716(a). In carrying out our independent appellate responsibility in reviewing a constitutional challenge to the punishment prescribed by Congress, we must faithfully apply the decisions of this nation's highest court. These decisions instruct us that we must presume that Congress lawfully performed its constitutional duties. In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Supreme Court cautioned courts charged with determining the constitutionality of a death penalty statute as follows: 74 [I]n assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people. 75 Id. at 175, 96 S.Ct. at 2926 (emphasis added). 76 Cheely does not argue that the death penalty is cruelly inhumane. Instead, Cheely contends that these statutes are unconstitutional because they cover "a wide range of acts ... where there is no intent to kill, but solely the intent to damage property." Appellee's Brief at 29. Although never acknowledged by the majority, it is Cheely who bears the heavy burden of demonstrating that section 844(d) and section 1716(a) are unconstitutional. He has not met that burden. 77 III. Cheely Lacks Standing to Challenge the Statute as Applied to Others 78 Cheely contends that sections 844(d) and 1716(a) do not meet the narrowing requirement imposed by the Eighth Amendment because they are so broad in their scope that they would permit a jury to recommend the death penalty arbitrarily and capriciously, in violation of the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). 79 In adopting Cheely's contention, the majority argues that the statutes are unconstitutional because the jury in this matter will be presented "with a broad class, composed of persons of many different levels of culpability, and [will be] allowed to decide who among them deserves death." Majority opinion at 1445. The majority maintains that "[t]he statute before us is unconstitutional because it utterly fails to foreclose this prospect." Id. The majority concludes that the statutes permit a wanton and freakish application of the death penalty in violation of the Eighth Amendment because they "are broad enough to authorize death for persons guilty of no more than involuntary manslaughter." Id. at 1443. 80 The majority's analysis confuses the requirement that statutes narrow the class of persons subject to the death penalty with the rule prohibiting a punishment that is grossly disproportionate to the crime involved. See Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1976). In Coker, the Supreme Court held that the death penalty was a grossly disproportionate and excessive punishment for the crime of rape. Id. In this matter, the majority essentially concludes that the statutes at issue may subject to the death penalty persons for whom death would similarly be a disproportionate punishment. For the majority, this demonstrates that the statutes fail to narrow the class of persons eligible for the death penalty. However, this line of analysis more properly relates to the question of proportionality, a requirement which is fulfilled in this case. As the district court noted in its June 3, 1992 minute order: "[T]he defendants are charged with what would have been premeditated murder at common law.... Consequently, their crime, if proved to the satisfaction of a petit jury, satisfies the proportionality analysis employed by the United States Supreme Court." Minute Order from Chambers at 1-2 (June 3, 1992). 81 Furthermore, the majority's analysis ignores the fact that Cheely was not charged with conduct that might be characterized as involuntary manslaughter. He is charged with what would have been identified as an especially vicious form of deliberate, premeditated, intentional murder at common law. This stands in stark contrast to the straw man created and triumphantly destroyed by the majority. 82 The majority argues that a sentence of death would be "impermissibly disparate and irrational" for a person who unintentionally kills a human being with an explosive device sent through the mails as part of an academic protest. Majority opinion at 1444. The Supreme Court instructed us long ago, however, that we lack the jurisdiction to give advisory opinions on hypothetical questions. Our authority is limited to actual cases and controversies presented by persons who have a concrete interest in the outcome of the litigation because of an alleged or threatened injury. The constitutionality of the portions of these statutes that make an intentional killing punishable by death is the sole issue before this court. Cheely simply lacks standing to challenge these statutes "on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the [c]ourt."1 Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973). Accordingly, the distracting hypothetical posed by the majority concerning the impact of these statutes on a bumbling academic protestor who kills unintentionally is not properly before this court under the clear teaching of Broadrick. IV. Eighth Amendment Jurisprudence A. Furman v. Georgia 83 An examination of the development of Eighth Amendment jurisprudence readily demonstrates that the challenged statutes meet the narrowing requirement first recognized by the Supreme Court's plurality opinion in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In Furman, the defendants were convicted and sentenced under Georgia statutes which permitted the trier of fact to select the punishment of death or a lighter punishment in its unfettered discretion. Id. at 240, 92 S.Ct. at 2727 (Douglas, J., concurring). Three members of the Court concluded that the failure of the Georgia statutes to guide the jury in the exercise of its discretion violated the Eighth and Fourteenth Amendments. Id. at 256-57, 92 S.Ct. at 2735 (Douglas, J., concurring) ("[T]hese discretionary statutes are unconstitutional in their operation."); id. at 310, 92 S.Ct. at 2763 (Stewart, J., concurring) ("I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and freakishly imposed."); see id. at 313, 92 S.Ct. at 2764 (White, J., concurring) ("[A]s the statutes before us are now administered, the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice."). Justice Brennan and Justice Marshall were of the view that capital punishment is cruel and unusual, and therefore cannot be imposed for any crime. Id. at 305, 92 S.Ct. at 2760 (Brennan, J., concurring); id. at 360, 92 S.Ct. at 2788 (Marshall, J., concurring). 84 Left unresolved by Furman was the question whether the narrowing of the jury's discretion could be performed by the definition of the crime itself, or whether it was necessary for the statute to recite a specific set of factors to guide the trier of fact's discretion in making its sentencing decision, after finding the defendant guilty of a homicide. In subsequent decisions, the Court has held that the narrowing function can be provided in the definition of the crime applied during the guilt phase of trial, or in the specification of aggravating circumstances to be considered during sentencing proceedings. B. Georgia's Response to Furman v. Georgia 85 Following the Court's determination that its capital punishment procedures were unconstitutional, Georgia amended its laws to place limitations on the jury's discretion in capital cases. Although no change was made in the definition of the felonies for which a person could receive the death penalty, Gregg v. Georgia, 428 U.S. 153, 163 n. 6, 96 S.Ct. 2909, 2920 n. 6, 49 L.Ed.2d 859 (1976),2 the 1972 Georgia legislation required that the trier of fact find the existence of certain specified aggravating circumstances before the death penalty could be imposed. See id. at 165-66, 96 S.Ct. at 2921-22. The Georgia statute also permitted the jury to consider "nonstatutory aggravating or mitigating circumstances," although the nature or scope of the nonstatutory aggravating or mitigating circumstances was not set forth in the statute. Id. at 164, 96 S.Ct. at 2921. Moreover, the Georgia statute provided that if the sentence imposed was death, the judge or jury must specify the aggravating circumstance(s) found to justify the penalty. Id. at 166, 96 S.Ct. at 2922. 86 The Supreme Court reviewed the constitutionality of the penalty phase procedures of this new legislation in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The Court first confronted the question that was left unresolved in Furman, namely, whether "the punishment of death for the crime of murder is, under all circumstances, 'cruel and unusual' in violation of the Eighth and Fourteenth Amendments of the Constitution." Id. at 168, 96 S.Ct. at 2922. The Court determined that it was not. Id. at 187, 96 S.Ct. at 2931-32. 87 The Court next considered whether the 1972 Georgia statute had overcome the constitutional deficiencies of the procedures followed in the Furman prosecution. Furman, the Court noted, prohibited the imposition of the death penalty where the "sentencing procedures ... created a substantial risk that it would be inflicted in an arbitrary and capricious manner." Id. at 188, 96 S.Ct. at 2932. The Court further explained that "Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Id. at 189, 96 S.Ct. at 2932. 88 The Court ruled that the sentencing procedures devised by the State of Georgia met the requirements prescribed in Furman, reasoning that: 89 [t]he basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury's discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. 90 Id. at 206-07, 96 S.Ct. at 2940-41. C. Texas' Response to Branch v. Texas 91 In Branch v. Texas, which was consolidated with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Court held unconstitutional Texas' system for imposing capital punishment. Id. at 239-40, 92 S.Ct. at 2727. In response, the Texas Legislature revised its death penalty statute. With regard to murder, Texas redefined capital homicide, limiting the punishment of death to: 92 murder of a peace officer or fireman; murder committed in the course of kidnaping, burglary, robbery, forcible rape, or arson; murder committed for remuneration; murder committed while escaping or attempting to escape from a penal institution; and murder committed by a prison inmate when the victim is a prison employee. 93 See Jurek v. Texas, 428 U.S. 262, 268, 96 S.Ct. 2950, 2954-55, 49 L.Ed.2d 929 (1976). 94 Texas also adopted a new procedure to be followed in cases wherein the jury found the defendant guilty of a capital homicide. Id. at 269, 96 S.Ct. at 2955. This procedure required the jury to answer the following questions: 95 (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; 96 (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and 97 (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. 98 Id. (quoting Tex.Code Crim.Proc., Art. 37.071(b) (Supp.1975-76)). If a Texas jury found that the prosecution had proved beyond a reasonable doubt that the answer to each question was yes, the death penalty was imposed. Id. If the answer to any question was no, a sentence of life imprisonment was imposed. Id. 99 In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the petitioner was convicted of killing a woman during the perpetration of a kidnapping and rape. Id. at 264-67, 96 S.Ct. at 2953-54. After considering evidence of mitigating and aggravating circumstances submitted during the punishment phase of the bifurcated proceedings, the jury answered yes to the following applicable questions: 100 (1) whether the evidence established beyond a reasonable doubt that the murder of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result, and (2) whether the evidence established beyond a reasonable doubt that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 101 Id. at 267-268, 96 S.Ct. at 2954. In accordance with the jury's unanimous affirmative vote, the state trial court sentenced the petitioner to death. Id. at 268, 96 S.Ct. at 2954-55. 102 On certiorari to the United States Supreme Court, the petitioner argued that the Texas statute violated the Eighth and Fourteenth Amendments because it did not eliminate the arbitrary and capricious nature of the system found unconstitutional in Branch and Furman. Id. at 274, 96 S.Ct. at 2957. The Court rejected this argument, concluding that 103 [w]hile Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. 104 Id. at 270, 96 S.Ct. at 2955. The Court noted that "the principle difference between Texas and [Georgia and Florida] is that the death penalty is an available sentencing option--even potentially--for a smaller class of murders.... Otherwise the statutes are similar. Each requires the sentencing authority to focus on the particularized nature of the crime." Id. at 271, 96 S.Ct. at 2956. Thus, in defining the crime, the Texas statute adequately narrowed the class of murderers subject to the death penalty. 105 The Court also concluded that to meet the constitutional requirement of individualized sentencing, 106 [a] jury must be allowed to consider on the basis of all the relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed. 107 Thus, in order to meet the requirement of the Eighth and Fourteenth Amendments, a capital-sentencing system must allow the sentencing authority to consider mitigating circumstances. 108 Id. Unlike the Georgia statute that directed the jury to consider mitigating factors, Texas law "[did] not explicitly speak of mitigating circumstances." Id. at 272, 96 S.Ct. at 2956. Nevertheless, the Court upheld the constitutionality of the Texas statute because the Texas Court of Criminal Appeals had interpreted the second statutory question "so as to allow a defendant to bring to the jury's attention whatever mitigating circumstances he may be able to show." Id. 109 The Court summarized its holding in Jurek in the following passage: 110 Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. It thus appears that, as in Georgia and Florida, the Texas capital-sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death. 111 Id. at 273-274, 96 S.Ct. at 2957. 112 The Court concluded that "[b]ecause [the Texas] system serves to assure that sentences of death will not be 'wantonly' or 'freakishly' imposed, it does not violate the Constitution." Id. at 276, 96 S.Ct. at 2958. 113 D. Application of the Narrowing Principle to Louisiana Law 114 In Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), the Supreme Court reviewed Louisiana's death penalty scheme. Louisiana law divided homicide into five grades: first-degree murder, second-degree murder, manslaughter, negligent homicide, and vehicular homicide. Id. at 241, 108 S.Ct. at 553. Second-degree murder included intentional murder and felony murder. The punishment for second-degree murder was life imprisonment without the possibility of parole. Id. First degree murder was limited to a narrower class of homicides--the killing of a human being: 115 (1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery; 116 (2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties; 117 (3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or 118 (4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing. 119 (5) When the offender has the specific intent to kill or to inflict great bodily harm upon a victim under the age of twelve years. 120 Id. at 241-42, 108 S.Ct. at 553 (quoting La.Rev.Stat.Ann. Sec. 14:30A (West 1986)). 121 Under this statutory scheme, after a jury found an individual guilty of first-degree murder during the guilt phase of the trial, the jury selected the punishment in a separate proceeding. Id. at 242, 108 S.Ct. at 553. Louisiana law provided that " '[a] sentence of death [could] not be imposed unless the jury [found] beyond a reasonable doubt that at least one statutory aggravating circumstance exist[ed] and, after consideration of any mitigating circumstances, recommend[ed] that the sentence of death be imposed.' " Id. (quoting La.Code Crim.Proc.Ann., Art. 905.3 (West 1984)). If the jury was not persuaded that at least one of the ten aggravating circumstances identified by statute had been proved, it could only impose a sentence of imprisonment without benefit of parole, probation, or suspension of sentence. Id. 122 The petitioner in Lowenfield was found guilty of three counts of first-degree murder under section 14.30A(3), an essential element of which was a finding that he intended " 'to kill or to inflict great bodily harm upon more than one person.' " Id. at 233, 108 S.Ct. at 549 (quoting La.Rev.Stat.Ann. Sec. 14.30A(3) (West 1986)). During the penalty phase of the trial, the jury found that the evidence demonstrated the existence of one of the aggravating circumstances listed by statute--the offender knowingly created " 'a risk of death or great bodily harm to more than one person.' " Id. at 235, 108 S.Ct. at 549 (quoting La.Code Crim.Proc.Ann., Art. 905.4(d) (West 1984)). Under Louisiana law, section 14.30A(3) and article 905.4(d) were "interpreted in a 'parallel fashion.' " Id. at 243-44, 108 S.Ct. at 554 (citing State v. Williams, 480 So.2d 721, 726-27 (La.1985)). The petitioner was sentenced to death. Id. at 235, 108 S.Ct. at 549. 123 Before the Supreme Court, the petitioner argued that the death sentence imposed by the trial court violated the Eighth Amendment because the aggravating circumstance found by the jury "merely duplicate[d] an element of the underlying offense of first-degree murder of which he was convicted at the guilt stage." Id. at 233, 108 S.Ct. at 548. In rejecting this contention, the Court summarized its prior analysis of the narrowing requirement of the Eighth Amendment in capital cases as follows: 124 It seems clear to us ... that the narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase. 125 Id. at 246, 108 S.Ct. at 555. The Court concluded that Louisiana's death penalty scheme was constitutional because the statutes narrowed the class of persons eligible for the death penalty and thereby limited the jury's discretion. Id. 126 In so doing, the Court made it clear that its decisions have not diluted the principle first announced by the plurality opinion in Furman that state laws which allow juries to recommend the penalty of death arbitrarily and capriciously violate the Eighth and Fourteenth Amendments. Since Furman was decided, the Court has upheld state laws that restrict or guide the exercise of discretion in capital murder cases. In Gregg, the Court instructed that a state may, without violating the Constitution, continue to define the crime of murder as it was at common law if its laws also require the jury to find expressly the existence of an aggravating circumstance that narrows the class of persons eligible for the death penalty. In Jurek, the Court ruled that a state may eliminate the possibility that a jury will act capriciously or arbitrarily by "narrowing the categories of murders for which a death sentence may ever be imposed," without requiring that the jury also find the existence of an aggravating circumstance. Jurek, 428 U.S. at 270, 96 S.Ct. at 2955. The Court further confirmed the constitutional validity of this approach in Lowenfield. Thus, a death penalty statute which limits the discretion of the trier of fact, either during the guilt phase by narrowly defining the class of capital crimes, or during the penalty phase by specifying aggravating circumstances, may be upheld. 127 The Court cautioned in Gregg that "each distinct [capital sentencing] system [of restraining jury discretion] must be examined on an individual basis." Gregg, 428 U.S. at 195, 96 S.Ct. at 2935. An examination of the federal statutes challenged in this matter, as applied to Cheely, reveals that the imposition of capital punishment is restricted to a particularly heinous form of homicide. 128 V. The Crime of Sending an Explosive Device to Kill or 129 Injure Property Which Results in Death is Narrowly Defined 130 Critical to the resolution of the issues presented in this appeal is that we are not reviewing a federal statute which purports to punish all forms of homicide regardless of the intent of the perpetrator and without any guidelines to limit the jury's discretion. Such a statute would unquestionably violate the plurality opinion in Furman. Furthermore, Congress has not in these statutes purported to punish common law murder committed within a state's territorial jurisdiction. The exercise of the police power is not included in the enumerated powers of Congress set forth in Article I, Section 8 of the Constitution. The Tenth Amendment makes this restriction quite clear by providing that "[t]he powers that are not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people." U.S. Const. amend. X. Unlike the States, which possess the power to enact broad homicide statutes which specify aggravating circumstances to narrow the class of murderers subject to the death penalty, Congress, in lawfully exercising its authority to regulate the mail and commerce, is limited to the enactment of statutes which narrowly define capital crimes. As discussed above, we must presume it did so in adopting sections 844(d) and 1716(a), mindful of its duty to comply with the Eighth Amendment. Gregg v. Georgia, 428 U.S. at 175, 96 S.Ct. at 2926. 131 Cheely argues that sections 844(d) and 1716(a) are unconstitutional because they were enacted before the publication of Furman v. Georgia in 1972. Appellee's Brief at 3, 11. The district court appears to have been persuaded by this argument. In justifying its ruling, the trial judge commented as follows: 132 In analyzing the three statutes in question in this case, it is important to bear in mind that all of them were enacted pre-Furman, so that in enacting the statutes, no Congress person sat down and sought to find language to meet the concerns articulated by the Supreme Court in Furman. The most that could be said is that in subsequent decisions of the U.S. Supreme Court, and particularly the Lowenfield decision, sufficiently backtracked on Furman to make a Furman response unnecessary. The Court is not prepared to find that. 133 Transcript of Proceedings, May 28, 1992, at 48-49. The majority apparently shares the view that all pre-Furman federal statutes are per se unconstitutional. See Majority opinion at 1444 n. 12. The only authority cited by the majority for this novel proposition is the dissenting opinion of Chief Justice Burger in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Chief Justice Burger speculated that the plurality opinion in Furman would require state legislatures and Congress "to make a thorough re-evaluation of the entire subject of capital punishment." Id. at 403, 92 S.Ct. at 2811 (Burger, C.J., dissenting). 134 Chief Justice Burger's obiter dictum assumed that the Court's three-judge plurality opinion effectively declared that all state and federal statutes not reviewed by the Court in Furman violated the Eighth Amendment. Unfortunately, Chief Justice Burger did not cite any authority to support his suggestion that the plurality opinion in Furman invalidated all existing state and federal death penalty legislation. Furthermore, I am unaware of any authority that holds that a dissenting judge's dire prediction of the woeful consequences that will flow from the majority's constitutional interpretation has any precedential value. 135 In fairness, it should be noted that Chief Justice Burger could not have anticipated the subsequent evolution of death penalty jurisprudence. He could not have anticipated that three years later, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court would hold that death penalty statutes are presumed to be valid, or that an accused faces a heavy burden in challenging their constitutionality. Chief Justice Burger also had no way of knowing in 1972 that the Supreme Court would hold in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), that a statute may comply with the Eighth Amendment by narrowly defining a capital crime, although not requiring the jury to find an aggravating circumstance. Furthermore, the notion that the Court's decision in Furman also invalidated every existing state and federal statute whose validity was not being challenged in the matter before the Court, is contrary to the Court's later admonition in Gregg that "each distinct [capital sentencing] system [of restraining jury discretion] must be examined on an individual basis." Gregg, 428 U.S. at 195, 96 S.Ct. at 2935 (emphasis added). 136 Having individually examined sections 844(d) and 1716(a), I would hold that they comply with the narrowing standard set forth in Jurek and Lowenfield. In Lowenfield, the Supreme Court explained that the constitutional requirements set forth in Furman are satisfied by a system which limits the discretion of the trier of fact either during the guilt phase by narrowly defining the class of capital crimes, or during the penalty phase by specifying aggravating circumstances. Lowenfield, 484 U.S. at 246, 108 S.Ct. at 555. The Court has ruled that by making the death penalty a sentencing option for a smaller class of murderers, a statute may sufficiently channel the jury's discretion at the guilt phase. Jurek, 428 U.S. at 270-71, 96 S.Ct. at 2955-56. In enacting sections 844(d) and 1716(a), Congress has confined the imposition of capital punishment to a person who has sent an explosive device through the mails with the intent to injure or kill the recipient and has succeeded in his plan. In so doing, Congress narrowly defined the type of offenders who may be subject to the death penalty--those who intentionally kill by use of a mail bomb. No further narrowing is required. 137 Through sections 844(d) and 1716(a), Congress targeted a particularly depraved type of killer--the cowardly assassin who intentionally and furtively kills from afar by means of a lethal device, disarmingly concealed in a wrapped container. Contrary to the majority's suggestion, there is no possibility that the jury to be selected someday to try this case will be permitted to render a wanton and freakish recommendation that would result in the death penalty for a person "guilty of no more than involuntary manslaughter." Majority opinion at 1444. Because these statutes do not permit the trier of fact to act arbitrarily and capriciously, Cheely has failed to meet his heavy burden of demonstrating a violation of the Eighth Amendment. 138 VI. The Majority's Reliance on United States v. Harper is Misplaced 139 The majority finds support for its determination that the mail bomb statutes are unconstitutional in this court's decision in United States v. Harper, 729 F.2d 1216 (9th Cir.1984). This reliance is misplaced. In Harper, the appellant was charged with espionage, in violation of subsections (a) and (c) of 18 U.S.C. Sec. 794. Id. at 1218 n. 1. Pursuant to section 794(a), any person who is convicted of transmitting to a foreign nation anything relating to the national defense, "with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation," is subject to punishment by death or life imprisonment. Id. 140 The analysis employed in Harper to declare this statute unconstitutional does not support the majority's decision in this case. If anything, the Harper rationale requires this court to uphold the constitutionality of the penalty provisions of sections 844(d) and 1716(a). In section 794(a), Congress lumped together in one statute all forms of espionage. Congress did not distinguish the types of espionage that in its judgment required the death penalty from other forms less threatening to our national defense or public safety. For example, Congress did not focus on spies whose betrayal directly caused the death of another person. Unlike the mail bomb statutes, section 794(a) did not require any demonstration that anyone was injured. A mere showing that the espionage communication assisted another nation was sufficient to trigger the imposition of the death penalty.3 141 Unlike section 794(a), the mail bomb statutes involved in this case narrowly define the type of conduct that must be proved before the jury can find the accused guilty and thereby subject to the death penalty. Thus, Congress, in its definition of the crime, has confined the jury's ability to recommend the death penalty to a case wherein the defendant mailed a bomb with the intent to injure or kill the recipient, and caused the death of a human being. This method of narrowing the jury's discretion in death penalty cases is consistent with the statutes upheld in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). Because sections 844(d) and 1716(a) do not violate the Eighth Amendment, congressional amendment of these statutes after the Supreme Court announced its decision in Furman was unnecessary. I would hold that Cheely has failed to bear his heavy burden of overcoming the presumption of constitutionality of a punishment prescribed by the duly elected members of Congress. 142 VII. The Statutes Need Not Explicitly Provide for the Consideration of Mitigating Evidence 143 Cheely also argues that the mail bomb statutes violate the Eighth Amendment because they do not expressly require that the jury consider mitigating evidence in choosing between life imprisonment and the death penalty. This contention lacks merit. 144 Rule 402 of the Federal Rules of Evidence provides that all relevant evidence is admissible. Fed.R.Evid. 402. Under the Eighth Amendment, evidence that might cause a jury to decline to impose the death penalty must be admitted. McCleskey v. Kemp, 481 U.S. 279, 304, 107 S.Ct. 1756, 1773-74, 95 L.Ed.2d 262 (1987). Therefore, the Constitution dictates that any evidence which might reasonably be deemed to have mitigating value is relevant and admissible, McKoy v. North Carolina, 494 U.S. 433, 440, 110 S.Ct. 1227, 1232, 108 L.Ed.2d 369 (1990), and the exclusion of such evidence would violate the Eighth Amendment. Lockett v. Ohio, 438 U.S. 586, 608, 98 S.Ct. 2954, 2966-67, 57 L.Ed.2d 973 (1978). Contrary to Cheely's contention, Congress, in adopting Rule 402 of the Federal Rules of Evidence, has provided for the admission of mitigating circumstances in federal death penalty cases. 145 Cheely further contends that the mail bomb statutes are unconstitutional because Congress failed to spell out the procedure that must be followed during the sentencing phase. We rejected a similar argument in McKenzie v. Risley, 842 F.2d 1525, 1542 n. 35 (9th Cir.) (en banc), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). We disposed of this issue with the following words: 146 Harper correctly notes that the Supreme Court has expressly required statutory aggravating circumstances in a death sentencing scheme. McKenzie apparently reads Harper as requiring similar explicit statutory provisions for consideration of mitigating circumstances, including detailed procedures for implementing this review. Such a reading of Harper would, of course, conflict with Jurek. We therefore decline to so interpret Harper. 147 Id. (emphasis added). 148 The trial in this matter has been delayed pending resolution of this appeal. We therefore have the opportunity to direct the trial court to conduct sentencing proceedings if the jury returns a guilty verdict, to admit all mitigating evidence pursuant to Rule 402, and to instruct the jury according to the Eighth Amendment jurisprudence of the Supreme Court. Since the mail bomb statutes already narrow the class eligible for the death penalty in the definition of the crime, they are constitutional "even though [they] clearly did not channel the jury's discretion by enunciating specific standards to guide the jury's consideration of aggravating and mitigating circumstances." Zant v. Stephens, 462 U.S. 862, 875, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). Conclusion 149 In sections 844(d) and 1716(a), Congress has focused on a vicious type of killer whose conduct endangers all persons who come into contact with his lethal package, whether or not they are the target of his depraved intent. The statutes comply fully with the Supreme Court's decisions that statutes may narrowly define capital crimes as a means of preventing juries from arbitrarily and capriciously recommending the death penalty. 150 The fact that the mail bomb statutes do not specify statutory mitigating circumstances does not conflict with the Eighth Amendment. The rules of evidence presently allow for the admission of mitigating evidence. Any error in the exclusion of mitigating evidence that may occur at trial may be appealed as a matter right to this court. This court can also direct the district court to the body of law that has evolved since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), regarding the manner of conducting sentencing proceedings and the instructions that should be provided to the jury. 151 Cheely has failed to meet the heavy burden of overcoming the presumption of constitutionality of an act of Congress. I would reverse the district court's determination that the mail bomb statutes violate the Eighth Amendment. 152 I concur in the majority's judgment that the district court properly granted the motion to suppress. 1 Alternatively, we may treat the appeal of this issue as an application for a writ of mandamus. United States v. Harper, 729 F.2d 1216, 1219-24 (9th Cir.1984) 2 On April 6, 1993, the government and Gustafson stipulated to the dismissal of Gustafson's appeal 3 For example, this jury instruction was approved by the Supreme Court in a 1948 decision: [Y]ou may return a qualified verdict in this case by adding the words "without capital punishment" to your verdict. This power is conferred solely upon you and in this connection the [c]ourt can not extend or prescribe to you any definite rule defining the exercise of this power, but commits the entire matter of its exercise to your judgment. .... ... [Y]ou are authorized to add to your verdict the words "without capital punishment," and this you may do no matter what the evidence may be.... Andres v. United States, 333 U.S. 740, 743-44 & n. 4, 68 S.Ct. 880, 881-82 & n. 4, 92 L.Ed. 1055 (1948). 4 See, e.g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (death is disproportionately severe penalty for rape of adult woman) 5 Lowenfield upheld Louisiana's capital sentencing scheme because it satisfied the former of these two conditions: the statute itself sufficiently narrowed "the class of death-eligible murderers." 484 U.S. at 246, 108 S.Ct. at 555; see also Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) 6 In Gregg, the Court upheld Georgia's revised capital sentencing scheme, which required the jury to find certain, statutorily-specified aggravating circumstances before it could impose the death penalty. 428 U.S. at 162-63, 96 S.Ct. at 2920 7 Section 34 of title 18, entitled "[p]enalty when death results," provides that "[w]hoever is convicted of any crime prohibited by this chapter, which has resulted in the death of any person, shall be subject also to the death penalty or to imprisonment for life, if the jury shall in its discretion so direct." 18 U.S.C. Sec. 34 (1988) 8 The statute does not require that the defendant's behavior be reckless, that the accident be reasonably foreseeable, or that the defendant even know the material is capable of exploding 9 The least culpable mental state the Supreme Court has held death-eligible is reckless indifference to human life during commission of a felony. Tison v. Arizona, 481 U.S. 137, 157-58, 107 S.Ct. 1676, 1687-88, 95 L.Ed.2d 127 (1987) 10 Cheely does not contend that death would be a disproportionate penalty for the crime he is alleged to have committed. He argues, however, that because the mail bomb statutes authorize death for a vast number of acts which could not pass the proportionality requirement, they are defective for that reason alone. While this type of challenge would be permissible in the First Amendment context where chilling effect on protected conduct or speech is a concern, we cannot entertain it here. "Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the [c]ourt." Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973) 11 The dissent wrongly asserts that just as Cheely is without standing to bring a proportionality challenge on behalf of those convicted of less serious crimes than he, he also may not refer to such persons in his Furman challenge. Dissent at 11922-25. However, a challenge under Furman is a challenge to the capital sentencing regime as a whole, not its application to a particular defendant. The Supreme Court has not hesitated under Furman to invalidate capital sentencing schemes challenged by defendants who had been convicted of first-degree murder. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Even those convicted of heinous crimes, if they face the death penalty, have a constitutional right to be sentenced in the consistent, rational manner prescribed by Furman 12 Throughout, the dissent persists in pressing an analysis based on the faulty premise that sections 844(d) and 1716(a) authorize the death penalty only for "a vicious type of killer" with "depraved intent." Dissent at 1458-59. At one point, it asserts that Congress limited the death penalty "to a person who has sent an explosive device through the mails with the intent to injure or kill the recipient and has succeeded in his plan." Id. at 1456-57 (emphasis added). That is simply untrue. Section 844 requires only the knowledge or intent that the device "will be used to ... intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property." 18 U.S.C. Sec. 844(d) 13 This is not particularly surprising in a statute enacted prior to Furman. Such statutes typically marked out a large class of death-eligible persons, and left it to the jury to decide who among this class would be subject to the death penalty. For this reason the dissenting Justices in Furman feared the Court's ruling meant that "if ... the Congress wish[es] to maintain the availability of capital punishment, significant statutory changes will have to be made." Furman, 408 U.S. at 400, 92 S.Ct. at 2809 (Burger, C.J., dissenting) 14 Cheely points out that this is equivalent to arguing that "[a] state could ... save its capital sentencing scheme simply by subdividing the homicide section of its criminal code to provide, for example, for murder by gun, murder by knife, by burning ... etc." Appellee's Brief at 28 15 Had the mail bomb statutes provided, for instance, that the sentence of death could be imposed only where serious bodily harm or death were intended, we would agree that Congress had sufficiently narrowed the class of death-eligible defendants. In such a case, the class of death-eligible defendants would be narrowed to those who had the mens rea of murderers, and whose chosen method of killing was both felonious and highly dangerous to third parties. The statutes before us now, however, do not accomplish such narrowing 16 Tison held that death was a proportionate penalty in cases involving reckless disregard for human life during commission of a felony. 481 U.S. at 155-58, 107 S.Ct. at 1687-88. In contrast, the capital provisions before us now authorize the death penalty for a much less culpable mental state: intent to damage property 17 As quoted in Harper, Sec. 794(a) provided that (a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life. Harper, 729 F.2d at 1218 n. 1 (quoting 18 U.S.C. Sec. 794(a)). 18 The dissent argues that the statute before us now is more narrowly drawn than the Espionage Act. Dissent at 1457-58. But the only distinguishing feature noted by the dissent is that the present statute requires a resulting death. According to the dissent, Harper should have held the Espionage Act unconstitutional because, in imposing death on persons who had not caused any loss of human life, it failed to satisfy threshold proportionality requirements. Id. at 1457 n. 3. This may or may not be true. Coker v. Georgia does not foreclose the possibility that grave injury to the interests of the United States would suffice. For Furman purposes, in any case, the homicide requirement of the statutes before us does not make Harper 's rationale inapplicable 19 In light of the above discussion, we need not address Cheely's claim that the statutes "prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or character or to the circumstances of the offense that mitigate against imposing the death penalty." Penry v. Lynaugh, 492 U.S. at 318, 109 S.Ct. at 2946-47. We note, however, that sections 844(d) and 1716(a) make no mention whatever of mitigating factors; since Furman neither the Supreme Court nor this court has upheld such an open-ended capital sentencing scheme 20 For instance, Cheely reputedly had written out a "hit list" that he kept in his cell, targeting individuals involved in the prosecution of the Cain homicide 1 The majority argues that Cheely has standing to attack these statutes because "[e]ven those convicted of heinous crimes ... have a constitutional right to be sentenced in the consistent, rational manner prescribed in Furman." Majority opinion at 1444 n. 11. Although this statement is true, none of the cases cited by the majority support the contention that a defendant may challenge a statute by recasting a proportionality argument, which he lacks standing to present, in the form of a claim that the statute fails to comply with the mandate of Furman 2 At the time Gregg was decided, Georgia provided for the alternative punishment of death for six crimes: murder, kidnapping for ransom or where the victim was harmed, armed robbery, rape, treason, and aircraft hijacking. See Gregg, 428 U.S. at 162-63, 96 S.Ct. at 2920 3 It should be noted that section 794(a) authorized the imposition of the death penalty in the absence of proof that any person was injured or killed as the result of the accused's alleged espionage activities. In Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), decided seven years before Harper, the Supreme Court held that "death is ... a disproportionate penalty for the crime of raping an adult woman." Id. at 597, 97 S.Ct. at 2869. In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the Supreme Court held that the Eighth Amendment does not permit the imposition of the death penalty on one who "aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." Id. at 797, 102 S.Ct. at 3376. These Supreme Court decisions suggest that the death penalty may not be imposed absent a homicide The appellant in Harper was not accused of taking a human life in the perpetration of the crime of espionage. Section 794(a) did not require proof that another person was killed before the death penalty could be imposed. The panel that decided Harper failed to consider or apply the principle set forth in Coker and Enmund that the death penalty is an excessive punishment for someone who has not taken human life. Perhaps this court's failure in Harper to apply dispositive decisions of our nation's highest court was caused, at least in part, because counsel for both parties believed that section 794(a) was unconstitutional solely because the statute failed to provide statutory guidelines to control the trier of fact's discretion. Harper, 729 F.2d at 1218, 1225-26. Had the panel in Harper applied Coker and Enmund, it would have been unnecessary for it to reach out to decide whether section 794(a) was unconstitutional because Congress did not provide guidelines to limit the jury's discretion.

537 U.S. 1095 OLSONv.UNITED STATES. No. 02-7377. Supreme Court of United States. December 16, 2002. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. 2 C. A. 11th Cir. Certiorari denied. Reported below: 44 Fed. Appx. 945.

810 F.2d 195 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.In re Raymond WAGSTAFF, Petitioner. No. 86-8010. United States Court of Appeals, Fourth Circuit. Submitted Dec. 24, 1986.Decided Jan. 21, 1987. Before SPROUSE, ERVIN and CHAPMAN, Circuit Judges. Raymond Wagstaff, petitioner pro se. PER CURIAM: 1 Raymond Wagstaff applies to this Court for a writ of mandamus, claiming that he filed a criminal complaint in the district court against Special Agent Roger Kuhleman for allegedly committing perjury at the grand jury proceeding and detention hearing preceding his trial and conviction for bank robbery in criminal case No. Y-86-015, in stating that a positive photographic identification had been made; that Magistrate Paul Rosenberg, the presiding official at the detention hearing, knew or should have known that Kuhleman perjured himself; and that the magistrate failed to act on his complaint against Kuhleman. Wagstaff asks this Court to "order the U.S. Magistrate Paul Rosenberg to perform his duty under the Federal Rules of Procedures (sic) Rules 3, 4, 5, 6 and 7", and "to refrain from conduct reviewable under Title 28 U.S.C.A. 372." 2 On June 25, 1986, the district court entered a memorandum and order in No. Y-86-015, in which it fully explored the question of whether improprieties occurred before the magistrate. The district court concluded that there was no support for Wagstaff's contention that Kuhleman gave perjured testimony, and that contention is now before us on appeal in No. 86-5585. 3 We find that issuance of the writ is inappropriate. Writs of mandamus are extraordinary writs, and the power to issue them is sparingly exercised. Kerr v. United States District Court, 426 U.S. 394 (1976). 4 Therefore, we grant leave to proceed in forma pauperis and deny the application for a writ of mandamus. 5 DENIED.

423 S.W.2d 140 (1967) Charles D. CALDWELL, Appellant, v. Cordia G. CALDWELL, Appellee. No. 4666. Court of Civil Appeals of Texas. Waco. December 28, 1967. Rehearing Denied January 18, 1968. *141 Clair F. Achenbach, Dallas, for appellant. Burt Barr, Dallas, Robert Doss, Denison, for appellee. OPINION McDONALD, Chief Justice. This is an appeal by defendant Charles D. Caldwell from a judgment awarding plaintiff Cordia G. Caldwell a divorce, dividing property, and awarding plaintiff's attorneys a fee from community property of the parties. Plaintiff, Cordia Caldwell, filed suit for divorce against defendant Charles Caldwell, alleging "defendant several years prior to said separation commenced a course of harsh, cruel and tyrannical treatment toward the plaintiff; that he was always continually fussing and nagging at the plaintiff; that such conduct on the part of the defendant toward her renders their further living together insupportable." Plaintiff prayed for divorce, property division, and attorneys' fees. Defendant excepted to the allegations of cruel treatment as vague and indefinite; but did not bring same to the attention of the trial court or secure an order overruling same, and did not object to any testimony offered on the issue of cruel treatment. Trial was to the court without a jury, which, after hearing, granted plaintiff divorce; awarded plaintiff's attorneys $8500. attorneys' fee out of community funds of the parties; awarded plaintiff her separate properties; awarded defendant $8,250.; a 1962 Dodge automobile, lawnmower, motorboat, $1,000. insurance policy on defendant's life, other insurance policies and cemetery lot; and awarded plaintiff all other community property of the parties. Defendant appeals on 4 points, contending the trial court erred: 1) In granting divorce "for the reason that plaintiff's petition did not properly allege any ground upon which a divorce could be granted, against which defendant specially excepted." 2) In granting a divorce "for the reason there was no evidence, or insufficient *142 evidence, to support such decree." 3) "In failing to make a particular finding of what was community property and what was separate property, thereby perpetrating a severe injustice upon defendant under the judgment." 4) In awarding plaintiff's attorneys "the sum of $8500. payable out of the community property," without a separate finding of the value of the community property. Defendant's 1st contention is that plaintiff did not properly allege any ground upon which divorce could be granted. Plaintiff alleged "harsh, cruel and tyrannical treatment * * * which renders their further living together insupportable." While defendant excepted to the foregoing as vague and indefinite, he did not preserve the point by getting a ruling on his exception, and thereafter objecting to testimony. Defendant's right to object to the pleading has therefore been waived; and the pleading is sufficient to support an action for divorce on the ground of cruel treatment. McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459. Defendant's 2nd contention is that there is no evidence, or insufficient evidence, to support a decree of divorce. The record reflects the plaintiff is 83 years of age; the defendant some 88 years of age; and they had been married some 17 years. Plaintiff owned considerable property; defendant had none at the time of the marriage. Almost all income was from the separate property of plaintiff. Plaintiff is crippled and immobilized since 1943. She testified defendant was nagging her to give him all her property and was trying to take everything away from her, and that this caused her anxiety and unrest; that it was impossible for her to live with defendant as husband and wife. Defendant left plaintiff on 2 occasions and moved out; told others that plaintiff had lost her mind; and tried to get the banker to change plaintiff's bank account to defendant's name. In a divorce case the question of whether further living together by the parties is insupportable is a fact question to be determined by the trial court, under all facts and circumstances in the case, and much latitude is allowed a court in determining such question. Mobley v. Mobley (nwh) Tex.Civ.App., 263 S.W.2d 794. From the record, we cannot say the trial judge abused his discretion in granting the divorce; or that there is no evidence or insufficient evidence to sustain the judgment. Defendant's 3rd contention is that the trial court erred in not making findings as to what was community property and separate property. Defendant has waived such point by not making demand for such findings by the trial court under Rule 297, Texas Rules of Civil Procedure. As to the trial court's division of the community property, Article 4638, Vernon's Ann.Tex.St. prescribes that the trial court shall divide the estate of the parties in such a way as the court shall deem just and right. We are unable to say from this record that the trial court acted arbitrarily, or that there is shown any abuse of discretion. See: Grant v. Grant, (nre) Tex. Civ.App., 351 S.W.2d 897; Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299. Defendant's 4th contention complains of the award of attorneys' fees to plaintiff's attorneys out of the community property, "without a separate finding of the value of the community property." Defendant requested no findings of the trial court, and cannot be heard to complain of such for the first time on appeal. Rules 296, 297, T.R.C.P. All defendant's points and contentions are overruled. Affirmed.

Citation Nr: 1641945 Decision Date: 10/31/16 Archive Date: 11/08/16 DOCKET NO. 05-25 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a higher rating for lumbar spine intervertebral disc syndrome, currently rated as 10 percent disabling from August 2, 2003 to February 3, 2014 and as 20 percent disabling from the latter date. 2. Entitlement to a higher rating for right lower extremity radiculopathy, currently unrated prior to February 3, 2014 and rated as 10 percent disabling from that date. 3. Entitlement to a higher rating for left lower extremity radiculopathy, currently unrated prior to February 3, 2014 and rated as 10 percent disabling from that date. 4. Entitlement to a TDIU due to lumbar spine intervertebral disc syndrome with right and left lower extremity radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran had active military service from July 1990 to August 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In that decision, service connection was established for the low back disability, and a 10 percent rating was assigned, effective from August 2, 2003. In November 2015, the rating for low back disability was increased to 20 percent, effective from February 3, 2014, and 10 percent ratings were assigned for right and left lower extremity radiculopathy, each from February 3, 2014. The lower extremity radiculopathies are manifestations of the Veteran's service-connected back disability. When the Veteran disagreed with the amount of compensation awarded for back, he did not limit his appeal to one manifestation but rather was seeking the highest rating or ratings available for disability due to his service-connected back disability. See AB v Brown, 6 Vet. App. 35 (1993). Moreover, regulation provides that VA is to evaluate any neurologic abnormalities associated with a spine disability under an appropriate diagnostic code. 38 CFR § 4 71a, Note (1) (2015). Thus, when the Veteran appealed the rating assigned for his back disability, his appeal encompassed ratings for all manifestations of the condition. The award of the ratings for lower extremity radiculopathy in the November 2015 decision could not limit the Board's jurisdiction to less than it had acquired via the notice of disagreement filed in connection with rating decision on appeal. Thus, the issues before the Board are as shown on the title page. In November 2007, the Board remanded the case primarily for readjudication of the Veteran's claim with consideration under the spine rating criteria effective prior to September 26, 2003, as the Veteran had not been provided with the old rating criteria, nor had the RO considered his claim under the old regulations. In June 2011, the Board again remanded, noting that following its November 2007 remand, the instructions to readjudicate the claim under the old regulations had not been followed. In August 2016, after the case was returned to the Board, the representative waived initial RO consideration of additional relevant evidence received on appeal. A July 2016 VA examination report raises the matter of entitlement to a total rating for compensation based upon individual unemployability (TDIU) due to multiple service-connected disabilities, some of which are not currently at issue. Unlike in an appeal per Rice v. Shinseki, 22 Vet. App. 447 (2009), where a claim of TDIU rests solely on the disability for which an increased rating is being sought, the Board does not have jurisdiction of this matter. Instead, it is referred to the RO for appropriate action. The Board does have jurisdiction over the matter of entitlement to a TDIU due to the Veteran's service-connected lumbar spine intervertebral disc syndrome with right and left lower extremity radiculopathy, pursuant to Rice, and is rendering a decision on that matter below. In January 2016, the RO denied increased ratings for left and right knee disabilities, and proposed to reduce the rating for asthma. In March 2016, the Veteran's representative wrote indicating that it disagreed with a November 2015 decision denying an earlier effective date for asthma, an increased rating and earlier effective date for a low back disability rating, service connection for posttraumatic stress disorder (PTSD), recoupment of disability severance pay, and payment of attorneys fees. However, the RO had not denied service connection for PTSD within a year prior to that letter, and so that correspondence was not a timely notice of disagreement to an RO decision and that decision is not on appeal. The RO advised the Veteran in February 2016 that records did not show that the issue of service connection for PTSD was on appeal. Instead, the RO had notified the Veteran in June 2014 concerning a claim for service connection for PTSD, and he did not submit a notice of disagreement within 1 year of the decision notification date. Also, in February 2016, the RO returned to the Veteran all attorneys fees which it previously withheld from him in December 2015 (in the amount of $1997.76), and so the matter of payment of attorneys fees is not on appeal. The RO had made a recoupment of disability severance pay from the Veteran in February 2016, and notified him of that action and of his appeal rights at the time. Subsequent correspondence from the representative (in March 2016) was accepted as a notice of disagreement by the RO, and in April 2016, the RO advised the Veteran that it was going to try to resolve his disagreement through the post-decision review process, for which he had elected to have a decision review officer assigned to his case. The RO indicated that it would issue the Veteran a statement of the case if that review did not resolve his disagreement. As the RO is taking action on this issue which is necessary before any statement of the case which may be necessary is issued, remand for a statement of the case, per Manlincon v. West, 12 Vet. App. 238 (1999), is not warranted, as it could affect the pre-selected RO adjudication process. The issue of increased compensation for low back disability, which covers the concerns encompassed by the representative in March 2016 (the effective date for a staged increase in compensation for disabilities at issue), is already on appeal, as part and parcel of the Veteran's appeal for a higher rating for his service-connected low back disability, and the Board is rendering a decision on it at this time. In April 2016, the RO reduced the rating for asthma from 100 percent to 30 percent and terminated special monthly compensation from the July 1, 2016 date the asthma rating was reduced. The Veteran had previously in March 2016 attempted to disagree with the January 2016 proposed reduction for asthma. However, a proposed rating decision such as the January 2016 proposed rating decision is not appealable. Moreover, the Veteran has not filed a notice of disagreement with the actual April 2016 rating reduction made by the RO for asthma or the termination of special monthly compensation. This is necessary for him to commence an appeal concerning those decisions, and he still has time to do this if he would like to do so. FINDINGS OF FACT 1. Prior to February 3, 2014, the Veteran did not have moderate limitation of motion of his lumbar spine; nor did he have forward flexion of his thoracolumbar spine not greater than 60 degrees; or the combined range of motion of his thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. From February 3, 2014, forward flexion of the thoracolumbar spine was limited to 30 degrees; unfavorable ankylosis of the entire thoracolumbar spine was not shown. 3. Prior to February 3, 2014, the Veteran did not have lumbosacral strain with muscle spasm on extreme forward bending, and unilateral loss of lateral spine motion in a standing position. 4. From February 3, 2014, the Veteran does not have severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 5. Prior to February 3, 2014, the Veteran did not have moderate lumbar spine intervertebral disc syndrome, with recurring attacks. 6. From February 3, 2014, the Veteran does not have severe lumbar spine intervertebral disc syndrome, with recurring attacks, with intermittent relief. 7. Prior to February 3, 2014, the Veteran did not have incapacitating episodes of lumbar spine intervertebral disc syndrome having a total duration of 2 weeks or more during the past 12 months; and from February 3, 2014, he has not had them for a total duration of 4 weeks or more during the past 12 months. 8. Since August 2, 2003, the Veteran has had mild, but not moderate, right lower extremity radiculopathy. 9. Prior to June 19, 2009, the Veteran does not have mild left lower extremity radiculopathy. 10. Since June 19, 2009, the Veteran has had mild, but not moderate, left lower extremity radiculopathy. 11. The Veteran does not have any other neurological abnormalities which are associated with his service connected lumbar spine intervertebral disc syndrome. 12. The Veteran's service-connected lumbar spine intervertebral disc syndrome with right and left lower extremity radiculopathy do not preclude him from engaging in all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbar spine intervertebral disc syndrome prior to February 3, 2014 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5292-5295 (2002), 5243 (2003, 2015). 2. The criteria for a 40 percent rating, but not higher, for lumbar spine intervertebral disc syndrome from February 3, 2014 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5292-5295 (2002), 5243 (2003, 2015). 3. The criteria for a 10 percent rating, but not higher, for right lower extremity radiculopathy from August 2, 2003 to present are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8720 (2015). 4. The criteria for a compensable rating for left lower extremity radiculopathy prior to June 19, 2009 are not met. The criteria for a 10 percent rating, but not higher, for left lower extremity radiculopathy from June 19, 2009 to present are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8720 (2015). 5. The criteria for TDIU due to service-connected lumbar spine intervertebral disc syndrome with right and left lower extremity radiculopathy are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The effective date for the grant of service connection for the disability for which the ratings are now at issue is August 2, 2003, the date following the Veteran's August 2003 service discharge. The appeal stems from the original rating assigned in the August 2004 rating decision. Currently, a 10 percent rating is in effect for lumbar spine intervertebral disc syndrome from August 2, 2003 to February 3, 2014, and a 20 percent rating is in effect from the latter date. Two 10 percent ratings are in effect for right and left lower extremity radiculopathy, both from February 3, 2014, the date of a VA-authorized examination report. The regulations for rating disabilities of the spine were revised during the pendency of the claim, effective September 26, 2003. See 68 Fed. Reg. 51454 (Aug. 27, 2003). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C.A. § 5110 (g); 38 C.F.R. § 3.114 . Former Diagnostic Code 5292 permits a 10 percent rating for slight limitation of motion of the lumbar spine, a 20 percent rating for moderate limitation of motion of the lumbar spine, and a 40 percent rating for severe limitation of motion of the lumbar spine. Additionally, there is former Diagnostic Code 5295. Under it, lumbosacral strain with characteristic pain on motion warrants a 10 percent rating. With muscle spasm on extreme forward bending, and unilateral loss of lateral spine motion in a standing position, a 20 percent rating is warranted. Severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent rating. Additionally, former Diagnostic Code 5293 provides ratings for intervertebral disc syndrome between 0 and 60 percent based on orthopedic and neurological manifestations. A noncompensable rating is assigned for postoperative, cured intervertebral disc syndrome. A 10 percent rating is assigned for mild intervertebral disc syndrome. A 20 percent rating is assigned for moderate intervertebral disc syndrome, with recurring attacks. A 40 percent rating is assigned for severe intervertebral disc syndrome, with recurring attacks, with intermittent relief. A 60 percent rating is assigned for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurologic findings appropriate to the site of diseased disc, with little intermittent relief. Under 38 C.F.R. § 4.71a's (2015) new General Rating Formula for Diseases and Injuries of the Spine, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height warrants a 10 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Effective from September 23, 2002, see 67 Fed. Reg. 54345 (August 22, 2002), intervertebral disc syndrome could be rated either on chronic orthopedic and neurological manifestations or on the frequency of incapacitating episodes, defined as requiring bed rest prescribed by a physician and treatment by a physician. Effective from September 26, 2003, 68 Fed. Reg. 51456 (Aug. 27, 2003), the current General Rating Formula for Diseases and Injuries of the Spine became effective. Thus, prior to September 23, 2002, intervertebral disc syndrome can be rated on the basis of orthopedic and neurological manifestations under Diagnostic Code 5293. From September 23, 2002, intervertebral disc syndrome is rated either on the basis of chronic orthopedic and neurological manifestations or on the basis of frequency of incapacitating episodes. A 10 percent rating under the new Formula For Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes requires incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating requires incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating required incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See that Formula and its Note (1) at 38 C.F.R. § 4.71a. The rating criteria for the Veteran's right and left lower extremity neurological manifestations, found at 38 C.F.R. § 4.124a, have not changed. The RO has rated the Veteran's left and right lower extremity radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8720, which is a sciatic nerve rating for neuralgia. Under Diagnostic Code 8520, which is for paralysis of the sciatic nerve, and under which sciatic neuralgia is rated, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted when the incomplete paralysis is moderate, and a 40 percent rating is warranted when the incomplete paralysis is moderately severe. A 60 percent rating is warranted when there is severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. An 80 percent rating is warranted when there is complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 U.S.C.A. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. On VA authorized examination in February 2004, it was noted that the Veteran had a history of recurring low back pain with radiation into the right leg and hip now and then, with a feeling of numbness in that region. A further extension into the right foot was not present. Micturition and bowel movements were normal. There was no radiation into the left foot. Urination and stools were normal. The Veteran was able to sit, walk, or stand only for limited periods of time. On examination, his gait appeared normal. Typical types of gaits were demonstrated without difficulty. The Veteran could squat easily and get up easily with no signs of insufficiency. His shoulders were positioned longitudinally with the head positioned in the center. His pelvis-sacrum was positioned straight and the vertebral column was vertical, with hyperlordosis. Physical examination revealed lumbar spine sideways inclination to the right to 35 degrees passively, and 32 degrees actively, with complaints of pain at 30 degrees. Sideways inclination to the left was to 35 degrees passively and actively, with complaints of pain at 35 degrees. Right and left rotation were each to 35 degrees, with no complaints of pain. Forward flexion was to 110 degrees passively and actively, with no pain reported, and extension backward was to 35 degrees, with no pain reported. An MRI of the lumbar spine revealed foraminal stenosis at L5/S1. Muscular proprioceptive reflexes were normal and equal on both sides, and deep sensitivity was observed. Coordination was normal, and there were no pathological reflexes. The Veteran had pressure sensitivity of the plantar aponeurosis, and there were no sensorimotor deficits. The diagnosis was myotendinous and static syndrome of the lumbar vertebral column, in addition to foraminal stenosis at L5/S1 on both sides with recurring radiculopathy at L5/S1 on the right as shown by MRI. On VA evaluation on June 19, 2009, the Veteran reported bilateral radicular symptoms into his lateral legs, right greater than left. He was neurologically negative. In July 2011, the Veteran reported that he had had an MRI of his back 2 years beforehand, showing some disc space narrowing but no sign of nerve root compression. Since late May, he had been having a lot more pain in his right leg. He reported a lot of pain when he sat for more than 10 minutes, to the point where he would have to stand up and move around. He was not clearly having any weakness or numbness in his lower extremities, and no urinary symptoms. He felt he could not work any longer at jobs he had previously been doing. No neurological findings were made. The impression was chronic back pain with an injury in late May. The physician suspected that he possibly had nerve root compression at times. An August 2011 addendum shows that an MRI showed no evidence of nerve root compression. On VA evaluation in September 2011, the Veteran reported that he had been having pain in his back since 1994. It was a constant gripping pain in his right low back and then he would get a hot kind of feeling down the top of his right thigh and hip. He stated that it is worse when he has to walk any distance or if he has to sit for a prolonged period of time. On evaluation, he walked independently. His bilateral lower extremity strength was within normal limits. He had difficulty moving from sitting to supine due to pain. He was able to demonstrate trunk active range of motions within functional limits. A wall test showed that his right sacroiliac joint was locked, but there was no evidence of edema, redness, warmth, or increased pain. This responded well to physical therapy. On VA authorized examination on February 3, 2014, the Veteran reported flare-ups 3 to 4 times per week, lasting up to one day. On range of motion testing, the Veteran had forward flexion to 35 degrees, with painful motion beginning at 30 degrees. Extension was to 5 degrees, with painful motion at that point. Right lateral flexion was to 25 degrees, with painful motion at 20 degrees. Left lateral flexion was to 10 degrees, with painful motion beginning at 5 degrees. Right and left lateral rotation were to 30 degrees, with painful motion at that point. On repetitive use testing with 3 repetitions, forward flexion was to 35 degrees, extension was to 5 degrees, right lateral flexion was to 25 degrees, left lateral flexion was to 5 degrees, and right and left lateral rotation were to 30 degrees. The Veteran had muscle spasm that resulted in abnormal spinal contour. Muscle strength testing was all normal in his lower extremities. Deep tendon reflexes were 2+ at the knees and ankles, and sensory examination was normal in the lower extremities. The examiner indicated that the Veteran did not have constant pain in his right or left lower extremity. He had moderate intermittent pain in each lower extremity. He had no right or left lower extremity paresthesias or numbness. Tests revealed involvement of the sciatic nerve bilaterally. The Veteran had no other neurological abnormalities related to his thoracolumbar spine condition, such as bowel or bladder problems or pathological reflexes. The Veteran had intervertebral disc syndrome, with a total duration of incapacitating episodes of at least 1 week but less than 2 weeks over the past 12 months. It was felt that the condition limited him to lifting 5 kg occasionally. His walking was unlimited. Sitting and standing was unlimited, as long as the Veteran changed position occasionally. He was to have no forced position; no cold, wet, or windy working areas; no lifting, pulling, pushing, or carrying more than 5 kg occasionally; and no bending, twisting, jumping, or climbing. A July 2016 VA authorized examination for the Veteran's knees shows no reduction in lower extremity muscle strength, and no muscle atrophy. The evidence shows that from August 2003 to February 3, 2014, no more than a 10 percent rating is warranted based on low back limitation of motion under the old or new rating criteria. The February 2004 VA examination showed flexion to 110 degrees, and other motions to at least 30 degrees. This does not permit a rating greater than 10 percent under old rating criteria or the new rating criteria. This would warrant no more than a 10 percent rating under old Diagnostic Code 5292, for as it was no more than slight limitation of lumbar spine motion, and no more than a 10 percent rating under the new rating criteria's General Rating Formula for Diseases and Injuries of the Spine, as forward flexion of the thoracolumbar spine was to greater than 60 degrees and the combined range of motion of the thoracolumbar spine was to greater than 120 degrees and there was not muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Board next finds that from February 3, 2014, a 40 percent rating is warranted based on low back limitation of motion under the new rating criteria. The February 3, 2014 examination report shows that the Veteran's thoracolumbar spine forward flexion was to 35 degrees, with pain at 30 degrees. The examiner noted the Veteran's report of flare-ups 3 to 4 times per month, lasting up to one day, resulting in limitation to standing and walking. Although forward flexion was to 35 degrees during repetitive use testing, the examiner noted that the Veteran had functional impairment based on less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing. This evidence clearly reflects that the Veteran's back disability has caused impairment to the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Therefore, he is entitled to an increased 40 percent rating from February 3, 2014 based on functional impairment caused by pain. As there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine, an increased 50 percent rating is not warranted under the more recent criteria. The evidence also shows that from August 2003 to February 3, 2014, a rating in excess of 10 percent could not be assigned for lumbar spine intervertebral disc syndrome under old Diagnostic Code 5295, as the evidence shows that the Veteran did not have lumbosacral strain with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. The evidence further shows that from February 3, 2014, a rating in excess of 20 percent cannot be assigned under Diagnostic Code 5295, as the Veteran does not have severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forwarded bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. The Veteran's forward flexion was not markedly limited on VA examination in February 2014, lumbosacral strain was not diagnosed, his whole spine was not listed to the opposite side, and there was not loss of lateral spine motion or abnormal mobility on forced motion. Furthermore, the evidence does not support the assignment of a 20 percent rating for the Veteran's low back disability prior to February 3, 2014, by rating it as intervertebral disc syndrome under old Diagnostic Code 5293. Under that Diagnostic Code, a 20 percent rating could be assigned for moderate intervertebral disc syndrome, with recurring attacks. The Veteran's intervertebral disc syndrome would best be categorized as no more than mild prior to February 3, 2014, rather than moderate with recurring attacks. The only complaint on examination in February 2004 was of radiation now and then into only the right leg and hip, with a feeling of numbness. At the time of the June 2009 VA evaluation, the Veteran was having only right leg pain, and no weakness or numbness in his lower extremities, and the examiner suspected only that he had nerve root compression at times and an MRI showed no evidence of nerve root compression. In September 2011, the Veteran mentioned positive complaints only in his right lower extremity, and his bilateral lower extremity strength was within normal limits. This shows that the Veteran did not have moderate intervertebral disc syndrome with recurring attacks. The evidence also shows that from February 3, 2014, a rating in excess of 20 percent cannot be assigned under old Diagnostic Code 5293, as the evidence shows that severe intervertebral disc syndrome with recurrent attacks with intermittent relief is not present. The February 2014 examination indicates that the Veteran had less than 2 weeks of incapacitating episodes over the past 12 month period, his muscle strength was normal, and his deep tendon reflexes and sensory were also, and the Veteran did not have constant pain in his right or left lower extremity; instead, he had moderate intermittent pain. There was no paresthesias or numbness. Additionally, there is no indication that the Veteran had incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks during the past 12 months prior to February 3, 2014, to permit a rating higher than 10 percent under the new Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes now listed in 38 C.F.R. § 4.71a. To the contrary, the report from that date indicates that he had had incapacitating episodes of less than 2 weeks over the past 12 months at that time. There is also no indication that the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks during the past 12 months from February 3, 2014, to permit a rating higher than 20 percent under the new Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. There is no report of at least 4 weeks of incapacitating episodes during the past 12 months since February 3, 2014, and the examiner on that date indicated that the Veteran has not had more than 2 episodes of intervertebral disc syndrome in the past 12 months. The Board also finds that from August 2003 to February 3, 2014, a 10 percent rating for right lower extremity radiculopathy is reasonable. The Veteran had complaints of radiation now and then into his right leg and hip, and numbness in that region, at the time of the February 2004 examination. A rating higher than that is not warranted, however, either prior to or after February 3, 2014. No muscle weakness was shown on examination in February 2004, at the time of the evaluation in June 2009, or at the time of evaluation in September 2011. The evaluator in June 2009 suspected that the Veteran had possible nerve root compression only at times. On authorized examination in February 2014, the Veteran reported only moderate intermittent pain in his right lower extremity, and he had no right lower extremity paresthesias or numbness. Also, there was no weakness or atrophy on authorized examination in July 2016. The Board next finds that prior to June 19, 2009, a compensable rating is not warranted for left lower extremity radiculopathy, as mild incomplete paralysis of the sciatic nerve was not present. The evidence including the February 2004 VA examination report shows no left lower extremity radicular symptoms prior to that time. The Veteran's left lower extremity was neurologically normal in February 2004. He reported only right lower extremity symptoms in February 2004, and there was no mention of any left lower extremity symptoms prior to June 19, 2009. The Board finds that from June 19, 2009 to present, however, a 10 percent rating, but not higher, is warranted for left lower extremity radiculopathy. On June 19, 2009, the Veteran indicated that he had radicular symptoms into his left lower extremity, and this and the other evidence since then is reasonably consistent with mild incomplete paralysis of the left lower extremity. No more than a 10 percent rating is warranted from June 19, 2009, however, as moderate sciatic nerve incomplete paralysis in the left lower extremity is not shown from June 19, 2009 to present. The physician noted in June 2009 that the Veteran had no clear weakness or numbness in his lower extremities, and suspected that he only possibly had nerve root compression at times. His left lower extremity strength was normal on evaluation in September 2011. His deep tendon reflexes and sensory were normal on examination on February 3, 2014, with no paresthesias or numbness, and in July 2016, he had no reduction in muscle strength, and no muscle atrophy. In light of all of the above, a rating in excess of 10 percent for low back limitation of motion or intervertebral disc syndrome based on incapacitating episodes is not warranted prior to February 3, 2014, and a rating in excess of 20 percent for low back limitation of motion or intervertebral disc syndrome based on incapacitating episodes is not warranted from February 3, 2014. A 10 percent rating is assignable for right lower extremity radiculopathy from the August 2003 effective date of the grant of service connection, to the present. A 10 percent rating is assignable for left lower extremity radiculopathy from, but not prior to June 19, 2009. The provisions of 38 C.F.R. §§ 4.40, 4.45 have been considered in every applicable respect, with notations, where appropriate, as to the absence, presence, and severity of symptoms which they indicate should be considered in determining disability ratings, and that the benefit of the doubt doctrine has been carefully considered as well, but no higher ratings than those indicated above are warranted. No other compensable ratings are warranted for objective neurological abnormalities associated with the Veteran's service-connected low back disability, as none are claimed or shown. The examiner in February 2004 indicated that the Veteran's micturition and bowel movements were normal, and the physician in June 2009 indicated that he had no urinary symptoms The examiner in February 2014 indicated that the Veteran had no other neurological abnormalities related to his thoracolumbar spine condition, such as bowel or bladder problems or pathological reflexes. Other considerations The Board has considered lay statements from the Veteran about the severity of his low back and bilateral lower extremity radiculopathy disabilities. The Veteran's complaints have been considered and accepted, along with the probative competent evidence concerning the nature and extent of his disabilities which has been provided by the medical personnel who have examined him during the course of the current claim and who have considered and described pertinent clinical findings and rendered pertinent opinions in conjunction with their evaluations. The evidence of record directly addresses the criteria under which the disabilities are evaluated. The discussion above reflects that the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected low back disability with left and right lower extremity radiculopathy. The symptoms and impairment caused by them are specifically contemplated by the schedular rating criteria including 38 C.F.R. § 4.40, 4.45. These include impairment caused by pain, limitation of motion, weakness, muscle spasm, lack of endurance, diminished neurology, and the like. Thus, consideration of whether the Veteran's disability pictures exhibit other related factors such as those provided by the regulations as "governing norms" is not required and referral for extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board notes that the Veteran is service-connected for several disabilities. However, the issue of whether referral for extraschedular consideration is warranted for the Veteran's disabilities on a collective basis has not been argued or reasonably raised by the record. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014); Yancy v. McDonald, 27 Vet. App. 484 (2016). TDIU The Board finds that the matter of TDIU due to the Veteran's service-connected lumbar spine intervertebral disc syndrome with right and left lower extremity radiculopathy has been raised by the record, per Rice v. Shinseki, 22 Vet. App.447 (2009), and that the issue is ready for appellate review. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of service-connected disabilities. 38 C.F.R. §§ 3.340 , 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disability(ies) is(are) sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). For a Veteran to prevail on a total rating claim, the record must reflect some factor which takes the claimant's case outside the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See 38 U.S.C.A. § 4 .16 (a); Van Hoose, 4 Vet. App. at 363. In this case, the disabilities at issue are lumbar spine intervertebral disc syndrome, which is ratable at no more than 20 percent, and right and left lower extremity radiculopathy, each ratable at no more than 10 percent, for an aggregate rating of 40 percent. Accordingly, the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a) are not met. The analysis progresses to consideration of 38 C.F.R. § 4.16 (b), and a determination as to whether referral for extraschedular consideration is warranted, i.e., the Board must determine whether the Veteran is unemployable due to these service-connected disabilities regardless of the 40 percent rating. 38 C.F.R. § 4.16 (b) provides that it is established by VA policy that "all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled." However, in these cases, in order for the Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some circumstance which places the claimant in a different position from other Veterans with the same rating. The disability picture presented by the Veteran's lumbar spine intervertebral disc syndrome with right and left lower extremity radiculopathy does not reflect that the impact of it is such that it places him outside of the norm and renders him unemployable. In June 2009, the Veteran reported that he felt he could not work any longer at jobs he had previously been doing. In December 2013, the Veteran reported that he cannot sit for long periods of time, because this causes him very much pain; and that lifting, bending over, and standing for long periods of time is also a problem. He stated that the only relief he could get from the pain is from pain medication and walking. He also stated that problems with his back were making his job opportunities slim to none. He implied that he was still working, as a busboy, as he stated: "I work at the local Chile's." He indicated that he had to resign from his last job due to pain and to come to United States to get medical help. A July 2016 VA examiner stated that the Veteran reported losing his job in June 2016 predominantly due to his back. In the examiner's opinion, the Veteran was unable to perform any gainful employment because of multiple health impacting disabilities. He felt that the Veteran's prospects for finding a new job were poor due to his service-connected disabilities. Educational and employment information which the Veteran has submitted shows that he is currently working on a Criminal Justice degree and that he has experience in IT work, tax work, as a coordinator of automation equipment, and in voice and data communication, video teleconferencing, and with LANs; and that he has been responsible for operation of complex cryptographic equipment and has had significant training. Based on the evidence, the Board finds that referral of the Veteran's claim for TDIU due to lumbar spine intervertebral disc syndrome and right and left lower extremity radiculopathy for extraschedular consideration of a TDIU rating is not warranted, as the preponderance of the evidence indicates that they do not preclude him from all forms of substantially gainful employment. Given the Veteran's education and prior work experience, it is clear that these disabilities do not preclude him from all forms of substantially gainful employment. There would appear to be numerous more sedentary occupations which he could perform, which would provide him with an opportunity to get up after sitting for shorter periods of time, and which would not be contraindicated by the limitations reported by the examiner in February 2014, which are mentioned well above. With respect to the Veteran's claims being decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The representative argued in August 2016 that a remand is warranted for a new VA examination, as the examiner in 2014 did not have the claims folder available to him and so he could not answer the questions posed by the Board in June 2011. However, a review of the record reveals that the information provided by the examiner and the rest of the record permits a fair, full, and informed review of the Veteran's appeal. Accordingly, a remand would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 541 (1991). The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached. ORDER A rating in excess of 10 percent for lumbar spine intervertebral disc syndrome prior to February 3, 2014 is denied. A 40 percent rating for lumbar spine intervertebral disc syndrome from February 3, 2014, is granted, subject to the controlling regulations applicable to the payment of monetary benefits. The current 10 percent rating, but not higher, for right lower extremity radiculopathy, is granted from August 2, 2003, subject to the controlling regulations applicable to the payment of monetary benefits. A compensable rating for left lower extremity radiculopathy is denied prior to June 19, 2009; however, the current 10 percent rating for it, but not higher, is granted from June 19, 2009, subject to the controlling regulations applicable to the payment of monetary benefits. A TDIU due to lumbar spine intervertebral disc syndrome with right and left lower extremity radiculopathy is denied. ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Respondent, v. BRENT ALEXANDER HARGOUS, Petitioner. No. 1 CA-CR 15-0454 PRPC FILED 5-4-2017 Petition for Review from the Superior Court in Apache County Nos. S0100CR201100146 S0100CR201100268 S0100CR201100269 S0100CR201200104 The Honorable Michael P. Roca, Judge Pro Tem, Retired REVIEW GRANTED; RELIEF DENIED COUNSEL Apache County Attorney’s Office, St. Johns By Michael B. Whiting Counsel for Respondent Emily Danies, Tucson Counsel for Petitioner  STATE v. HARGOUS Decision of the Court MEMORANDUM DECISION Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined. T H O M P S O N, Judge,: ¶1 Brent Alexander Hargous petitions this court for review from the dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review but deny relief. ¶2 The state charged Hargous with multiple crimes in four different cases. After the superior court consolidated the cases, Hargous entered into plea agreements with the state. The court placed him on four years of intensive probation, a condition of which required Hargous to actively participate in an inpatient drug rehabilitation program. ¶3 The state subsequently petitioned the court to revoke Hargous’s probation based on allegations that he failed to seek drug treatment. The court held a hearing and found the state proved the probation violation. Consequently, the court revoked probation and sentenced Hargous to consecutive prison terms totaling eighteen years. On direct appeal, this court affirmed. ¶4 Hargous subsequently petitioned the superior court for relief pursuant to Arizona Rule of Criminal Procedure 32, arguing newly discovered evidence entitled him to be resentenced. Specifically, Hargous explained that, shortly after he began serving his prison sentence, he was diagnosed as having a psychiatric disorder. Hargous provided a copy of a letter by a psychiatrist who, after reviewing Hargous’s mental health records from the Department of Corrections, opined that “it’s extremely likely . . . [Hargous’s] psychiatric diagnoses were present at the time of sentencing . . ..” The psychiatrist also stated “the diagnosis . . . was most likely present . . . when Mr. Hargous committed certain crimes.” According to Hargous, he probably would have received mitigated or concurrent sentences had the trial court known at sentencing of his mental illness. 2  STATE v. HARGOUS Decision of the Court ¶5 The superior court noted that the petition did not comply with Rule 32.5, which requires a petition to be accompanied by the defendant’s declaration “stating under penalty of perjury that the information contained in the petition is true to the best of the defendant’s knowledge and belief.” The court gave Hargous sixty days to amend his petition to comply with Rule 32.5. ¶6 Almost two months after the court-ordered deadline, Hargous’s counsel filed a declaration avowing that the information contained in the petition was true to the best of Hargous’s and her knowledge and belief. The court dismissed the petition because the provided declaration did not remedy the defect; namely, Hargous’s attorney, not Hargous himself, made the declaration. The court also found the petition failed to present a colorable claim. Hargous unsuccessfully moved for reconsideration before requesting another sixty-day extension to file a Rule 32.5 compliant declaration. The court denied Hargous’s request, and this timely petition for review followed. ¶7 Hargous argues the court erred in determining he failed to present a colorable claim. Specifically, he contends the psychiatric diagnosis made after he was sentenced constituted newly discovered evidence requiring the superior court to resentence him. Hargous also contends the superior court should have granted him leave to file a delayed Rule 32.5 declaration. ¶8 “We will not disturb a trial court’s ruling on a petition for post-conviction relief absent a clear abuse of discretion.” State v. Swoopes, 216 Ariz. 390, 393, ¶ 4, 166 P.3d 945, 948 (App. 2007). We are obliged to uphold the trial court’s ruling if the result is legally correct for any reason. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984); State v. Cantu, 116 Ariz. 356, 358, 569 P.2d 298, 300 (1977). ¶9 To present a colorable claim of newly-discovered evidence, the evidence must appear on its face to have existed at the time of trial (or in this case, at sentencing) but be discovered thereafter. State v. Bilke, 162 Ariz. 51, 52, 781 P.2d 28, 29 (1989). In Bilke, our supreme court addressed a claim of newly discovered evidence relating to a defendant’s diagnosis of post-traumatic stress disorder (PTSD). Id. at 53, 781 P.2d at 30. There, the Court determined the defendant satisfied the foregoing requirement because, “while defendant may have been aware that his mental condition was not stable, he was not aware that he suffered from PTSD.” Id. at 53, 781 P.2d at 30. The reason for the defendant’s lack of knowledge regarding his 3  STATE v. HARGOUS Decision of the Court PTSD, the court noted, was that PTSD “was not a recognized mental condition at the time of his trial.” Id. ¶10 Hargous does not contend he was diagnosed with a mental illness that was not a recognized mental condition at the time he was sentenced. Nor does Hargous argue his mental illness was otherwise not subject to diagnosis at that time. He merely asserts that, although he was aware at the time of sentencing that he suffered a mental illness, the specific disorder was not diagnosed until after he started serving his sentence. Thus, unlike the petitioner in Bilke, Hargous’s post-trial diagnoses did not amount to newly discovered evidence. As a result, Hargous did not present a colorable claim, and the superior court acted within its discretion by dismissing the petition for post-conviction relief.1 ¶11 For the foregoing reasons, we grant review but deny relief. AMY M. WOOD • Clerk of the Court FILED: AA 1 Based on Hargous’s failure to raise a colorable claim of newly discovered evidence, addressing the propriety of the superior court’s decision denying Hargous leave to file a declaration in compliance with Rule 32.5 is unnecessary. 4 

409 So.2d 876 (1981) Henry T. JACQUES v. STATE. 4 Div. 837. Court of Criminal Appeals of Alabama. May 5, 1981. Rehearing Denied June 23, 1981. *878 Jerry E. Stokes, Andalusia, for appellant. Charles A. Graddick, Atty. Gen. and J. Michael Horsley, Asst. Atty. Gen., for appellee. LEIGH M. CLARK, Retired Circuit Judge. This is an appeal from the denial of appellant's petition for a writ of error coram nobis. The target of the petition is the judgment of conviction and sentence that was affirmed in Jacques v. State, Ala.Cr.App., 376 So.2d 821 (1979), wherein defendant was convicted of a crime of escape defined and proscribed by Code 1975, § 13-5-65, and sentenced to imprisonment for thirty years. The petition was a pro se petition in excellent handwriting, purportedly that of the petitioner, in which the petitioner made an "Affidavit of Poverty," in which he stated that he was "unable to ... employ an attorney." The attorney who represented him on the trial of the case and on appeal filed a motion to withdraw as attorney, which motion was granted, and a new experienced attorney was appointed to represent him, which he did on the hearing of the petition and has continued to do so on appeal.[1] The first issue raised by appellant's attorney is as to a matter set forth in the petition, in somewhat of a discursive manner, to the effect that he was convicted of a felony and sentenced accordingly, but that the indictment charged a misdemeanor. His attorney captions the proposition: "Whether the judgment and sentence imposed upon the appellant was responsive to the offense charged." The question has been a troublesome one for many years, as is evidenced by cases cited by petitioner in his petition, and it is argued by petitioner's attorney as well as it can be argued on behalf of petitioner. We agree with the following statement of appellant's counsel: "Alabama has [it had at the time of the alleged offense] three escape statutes material to this inquiry. Sec. 13-5-63 of the Alabama Code provides punishment for escape by a convict sentenced to imprisonment in the county jail or to hard labor for the county who escapes from such confinement before the expiration of his sentence. Sec. 13-5-65 provides punishment for any convict who escapes or attempts to escape from the penitentiary, or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which the convict has been sentenced. Sec. 13-5-68 provides punishment of not more than six months imprisonment for any prisoner who escapes from the lawful custody of any law officer." The issue now presented is related to, but not exactly the same as, the issue as to a material variance between the indictment and the proof that was raised and decided adversely to appellant in Jacques v. State, supra. Now it appears that appellant takes the position that the indictment does not charge a violation of § 13-5-65 but at the most charges a violation of § 13-5-68. He is mistaken, for the reason the indictment expressly charges that defendant was "a convict" and that he did wilfully and unlawfully escape from a place where a person "had him in charge under authority of law, before the expiration of the term for which he was sentenced." *879 This language is equivalent to an alternative phrase of § 13-5-65, which provides: "Any convict who escapes or attempts to escape from the penitentiary or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which he was sentenced, shall, on conviction, be imprisoned for an additional term of not less than one year." (Emphasis supplied). Some confusion could conceivably result from the failure of an indictment to set forth in the most unambiguous language possible an offense chargeable under one of the three sections as distinguished from an offense chargeable under either of the other two, but we think that it cannot be reasonably held that defendant was not sufficiently apprised of the charge against him to enable him to determine that it was based on § 13-5-65 and not under either of the other two sections. This is especially true in light of the fact that, according to the undisputed evidence, and necessarily to the knowledge of defendant, he had been convicted theretofore and sentenced to the penitentiary for burglary and grand larceny, each a felony, which could not have been embraced as a basis for an indictment pursuant to § 13-5-63. Clearly also it is not embraced as a basis for an indictment under § 13-5-68, which proscribes, according to its caption, "Escapes not otherwise provided for," which is corroborated by the text of § 13-5-68. It is not for us to attempt to explain or justify the great difference between maximum punishment prescribed for a violation of § 13-5-65 and the maximum prescribed by § 13-5-63 and § 13-5-68. The maximum, though not expressly stated in § 13-5-65 is a "term up to and including life." Weaver v. State, 44 Ala.App. 268, 207 So.2d 134 (1968); Kelly v. State, 44 Ala.App. 307, 208 So.2d 217 (1968). It is to be noted that the new criminal code, Code of Alabama 1975, Title 13A, effective as to crimes committed after January 1, 1980, has made considerable change in the punishment prescribed for the various kinds of escapes, and perhaps commendable intelligence as to changes made by the new criminal code has encouraged defendant in his apparent belief that the judgment of conviction and sentence was not in conformity with the indictment and with the law applicable to the case against him. One ground of the petition for writ of error coram nobis alleged that "during the whole trial, petitioner was compelled to wear prison clothing before a jury." Substantially the same ground is asserted as a basis for a reversal of the court's order denying the petition. During the hearing on the petition, and after there was evidence to the effect that defendant was wearing prison clothing, "blue denim clothing like a blue denim shirt with dark denim pants," the court stated: "Mr. Stokes, I can tell you this of my own personal knowledge about the prison clothes. Mr. Bill Law, the probation officer, told me that the Baptist Church had clothing that could be made available to Defendants in these cases. And I don't know what officer it was, but I told him to find out if Mr. Jacques wanted some clothes from down there and he said, no, he wanted to be tried in his prison clothes, is the word that came back to me about it. I made an effort to see that he got clothing other than the prison clothing." The petitioner testified that he did not recall having any discussion with the court or his attorney with reference to his clothing and that he was not advised that he did not have to proceed to trial in the clothing that he had on. He said: "Q. Your testimony under oath is, that nobody ever told you that you had access to any other clothes? "A. Yes, sir. "Q. And you sat through your trial in the clothes that you had issued to you in Kilby prison, is that right? "A. Yes, sir." In Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), reh. den. 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976), it was held that a state *880 cannot, consistent with the Fourteenth Amendment due process or equal protection requirements, compel an accused to stand trial before a jury while clothed in identifiable prison clothing, but that the failure to make an objection to the court as to being tried in such clothing, for whatever reason, was sufficient to negate the presence of compulsion necessary to establish a constitutional violation. The instant case presents an even more favorable situation for the application of that which was held in Estelle v. Williams, for the reason that all of the jurors knew from the evidence presented to them that defendant was at the time of his trial a convict, serving time at the time of the trial for a previous felony. His prison attire revealed nothing to the jury as to which the jury was not fully informed by the evidence. The defendant was not prejudiced by any failure on the part of the State to provide him with other clothes. In saying this, we do not recommend that even in such a case a convict should not be dressed with appropriate clothes throughout his trial, clothing distinctly different from his prison clothes. He should be if such is his desire, as apparently he would have been, except for some apparent or possible misunderstanding. One of the grounds of the pro se petition for writ of error coram nobis states: "Petitioner was entitled to a court appointed attorney who would aid him and not the state, and an attorney who had an interest and not a conflict of interest. Three other codefendants only got 90 days for alleged escape, yet court appointed attorney wanted petitioner to plea bargain for thirty years. Court appointed attorney's wife, a lawyer also on the same case, had another codefendant testify against petitioner to get 90 days in jail." On the hearing of the petition, the attorney appointed to represent defendant on the trial and who continued to represent him on appeal, as shown by Jacques v. State, supra, testified on call of the petitioner. Said attorney's wife, also an attorney, testified also on call of the petitioner. Their testimony is clear, and its credibility is not questioned. They are and were partners in the practice of the law. Each was appointed by the court as an attorney for an indigent defendant who was confined to the Covington County Jail on the night of November 1-2, 1978, when there was a "jailbreak" in which seven or more prisoners escaped. The husband was appointed to represent Mr. Jacques, and the wife was appointed to represent Mr. Bart T. Rossi. However, she was not appointed to represent Mr. Rossi on the charge of an escape. It appears that before she was appointed to represent him, the case against him for an escape had already been heard and disposed of as a misdemeanor in the District Court. She was appointed to represent Rossi first in a case against him for possession of marijuana and thereafter was appointed to represent him in a case based on a charge of larceny and robbery on the occasion or night of the jailbreak. The testimony on the hearing of the petition, which consisted of the testimony of the two attorneys who had represented Mr. Jacques and Mr. Rossi, and the testimony of Mr. Jacques, was clear to the effect that both of the attorneys and Mr. Jacques knew that the husband was representing Mr. Jacques and the wife was representing Mr. Rossi. It is also clear from the testimony of Mr. Jacques and his attorney that the matter of the representation of Mr. Rossi by the attorney for Mr. Jacques was discussed between Mr. Jacques and his attorney, but neither was positive as to the reason for such discussion or as to any details thereof. The undisputed evidence on the hearing on the petition shows also that Mr. Rossi's attorney through plea bargaining discussions with a representative of the State obtained an agreement from the prosecution for a judgment or judgments against Rossi, on his plea or pleas of guilty, which the court by its judgment or judgments approved. As to the plea bargaining discussions, the attorney for Mr. Rossi testified: "Q. Okay. Now, during your representation of him, was there some plea bargaining that went on in connection with *881 his getting a sentence in exchange for his cooperation in testifying in the Henry Jacques' trial? "A. He would get a recommendation in exchange for his cooperation in the escape and the charges arising therefrom. ". . . . "Q. Okay. So he agreed in effect, to cooperate with the State in the prosecutions arising, against anyone, arising out of the escape incident? "A. As I remember, that's correct. "Q. In which, Mr. Jacques was involved? "A. In exchange for a recommendation, yes." It is clear also that each of the attorneys represented his or her respective client independently and without cooperation or conjunction with the other attorney in his or her representation of his or her client. It appears that the only communication between them with reference to the subject was that she "told Mr. Jacques' attorney that Mr. Rossi was going to testify in the case against Mr. Jacques." As a part of the testimony of Mr. Rossi's attorney on the hearing of the coram nobis petition, she said: "Q. Did you have any discussion with the District Attorney or the Court with reference to any possible conflicts that might arise from that situation? "A. Yes, I did. "Q. Could you tell us the nature of those discussions and how that was resolved? "A. When I became aware that Mr. Rossi—that there was a possibility that he would become a State's witness, as I remember it, I spoke to the judge. And asked him about my husband representing one person involved in the escape and my representing another and was informed that they did not believe that there would be any conflict and that I would not withdraw." Notwithstanding the good faith and sincerity and the then apparent propriety of one's law partner representing Mr. Jacques and the other law partner representing Mr. Rossi, with the sanction thereof by the court, there was danger lurking therein that doubtless could not have been as well perceived then as now. Facially, at least, a serious question is presented as to whether the situation described impaired Mr. Jacques' attorney, potentially or actually, in his ability or conduct in his representation of Mr. Jacques. Not all law partnerships possess the same community of interest and confidence in the business of the partnership. However, we have an example here of an admirable extraordinary community of interest among law partners that is hardly distinguishable from a complete unity of interest. If it is assumed that neither of the attorneys could have properly represented Jacques and Rossi, it seems to us that neither attorney should have represented either defendant while the other attorney was representing the other defendant. It cannot be maintained that an attorney cannot represent more than one of a number of codefendants, whether singly or jointly indicted. At the time of the appointment of the attorney to represent Jacques and the appointment of the attorney to represent Rossi, it is understandable that there was no apparent conflict of interest between that of Jacques and that of Rossi. However, when it developed that Rossi was to plea bargain on a basis of his cooperation with the State and testifying on call of the State, which he did not have to do by reason of his constitutional right not to incriminate himself, a conflict, in our opinion, occurred. The situation then became dangerously close to a collision with the result found in Zuck v. Alabama, 588 F.2d 436 (5 Cir. 1979), in which it was stated at 588 F.2d 439: "... If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client. "If such an actual conflict exists, it need not be shown that the divided loyalties actually prejudice the defendant in the *882 conduct of his trial. As we noted in Castillo [Castillo v. Estelle], 504 F.2d [1243] at 1245 [(5th Cir.)]: "`When there is a conflict of interest such as exists in this case, the prejudice may be subtle, even unconscious. It may elude detection or review. A reviewing court deals with a cold record, capable, perhaps, of exposing gross instances of incompetence but often giving no clue to the erosion of zeal which may ensue from divided loyalty. Accordingly, where the conflict is real, as it is here, a denial of the right to effective representation exists, without the showing of specific prejudice.'" Whether we agree with the application of the principles of law set forth in Zuck to the facts, we are required, whether such is as it should be, to follow what federal courts consistently hold as to rights guaranteed by the Constitution of the United States, including the Fourteenth Amendment rights which have been construed to include the right to the effective assistance of counsel in the defense of a criminal case. We do not hesitate to follow that which was held in Zuck and stated in other federal cases. We find, however, that there are circumstances in the instant case not discussed above, which will be now discussed, that remove the judgment of conviction and sentence of Jacques from extinction as pronounced as to the trial court judgments in Zuck and other cases. On the hearing of the coram nobis petition, there was introduced in evidence a copy of the transcript of the evidence on the trial of the case, and we have it now before us as a part of the transcript[2] on this appeal as it was in Zuck v. State, supra. By it we are reminded of the factual basis for what was said in Jacques v. State, at 376 So.2d 825, that before the trial commenced therein defendant moved the court to dismiss his attorney and that in overruling the motion, the trial court made it clear to the defendant that defendant presented to the court no good reason for the removal of the attorney, that the previous attorney had been appointed and had been removed on motion of the defendant. In Jacques v. State, supra, our opinion included a review of the trial court's action in denying defendant's motion to remove his attorney and in permitting, nevertheless, the defendant to participate pro se in the defense, which he did with commendable skill, irrespective of any lack of due deference to the trial judge and to his attorney. We concluded that there had been no error prejudicial to defendant, that there had been "no questionable ruling of the court that, if otherwise, would have caused a different verdict." There was no application for rehearing, no petition for certiorari. In presenting the motion to remove his attorney in the trial court, defendant filed a written pro se motion, consisting of nine paragraphs, the last paragraph stating: "9. It seems public defender spends more time talking to the district attorney; therefore, defendant asks the court to appoint him another attorney for public defender definitely has no interest and there certainly is a conflict of interest, for I need an attorney who will help me and not the district attorney." Promptly after the court announced its ruling denying defendant's motion to dismiss his attorney, there was considerable dialogue between the court and defendant, but in it there was no mention made of the fact that the wife and partner of defendant's attorney was attorney for Bart Rossi. The motion was filed two days before the trial commenced, along with other pro se documents, including a "Request for Subpoena to Produce Witnesses at Trial." The request contained a list of fifty-seven named witnesses, which included as number 13 the name of Bart Rossi. Although there is accentuation in the coram nobis proceeding of the representation of petitioner by the husband and law partner of the attorney who represented Rossi, *883 it appears that petitioner was fully cognizant of that fact when the case was tried and that he did not accentuate the fact when he presented his motion to remove his attorney. With his obvious familiarity with his Fourth Amendment rights, appellant should have so emphasized the conflict of interest question as to have brought it to the attention of the trial court and to the court on appeal, long before the filing of his coram nobis petition. We now have occasion to look more intently upon the testimony of Bart Rossi on the trial of the case. He was the witness who testified that he saw defendant releasing the jailer from a "Full-Nelson hold." He was not cross-examined by defendant's attorney; Mr. Jacques cross-examined the witness. He was able to show by his own familiarity with the jail that were it not for light in a bathroom of the area where the witness said he saw defendant releasing the jailer from a "Full-Nelson hold" the area would have been "pitch black." A part of the cross-examination was as follows: "Q. All right. Was there any lights on out here? "A. No, it was very dark. "Q. Was there any lights in the middle cell? "A. No. "Q. Was any lights on on the north side? "A. No. "Q. In other words, the place—the whole top floor was pitch black? "A. Right. "Q. But you seen me bring Melvin Watson inside in a Full-Nelson? "A. Yes. "Q. In pitch black darkness, you seen me? "A. Right. There was a light on in the bathroom. "Q. You just said all the lights were out upstairs? "A. They were except for the bathroom light. That light is always on. "Q. Nobody in the cell can turn that light out? "A. Not before you can go up there and unscrew it. "Q. Can anybody in the cell unscrew that light and put that light out? "A. Yes. "Q. And as far as you know all these doors was open? "A. Right." It should be said, we think, that, contrary to that which might otherwise be thought, Bart Rossi was not a convict at the time of the escape and therefore could not have been convicted under § 13-5-65, as was Mr. Jacques, or under § 13-5-63, which is applicable to the escape of one who has been convicted of a misdemeanor, and could only have been convicted under § 13-5-68. The violation of § 13-5-68 is a misdemeanor with a maximum prison sentence of six months. Whatever leniency he may have obtained by reason of his willingness to testify as a witness for the State against Mr. Jacques was not as great as Mr. Jacques seemed to think in emphasizing the disparity between the punishment received by Mr. Jacques and the punishment received by Rossi. We do not attempt to say whether the fact that Rossi was only eighteen years of age at the time was a material factor as to the punishment he received. Although the conflict of interest issue was presented in the coram nobis proceeding, the cardinal grievance of petitioner was as to the question of the validity of his sentence of imprisonment for thirty years. According to what the petitioner said at the conclusion of his testimony on the hearing, the proceeding was based exclusively upon that grievance. His last words on the subject in his cross-examination were: "Q. Now, Mr. Jacques, at the time you were indicted and tried for escape, what was you in jail for? "A. I'd been-I was in jail for breaking and entering and grand larceny, I believe. "Q. How many different cases? "A. Four. "Q. Four different cases? All right. Did you escape from jail? "A. I walked away from the jail. *884 "Q. All right. You did leave the jail knowing you were sentenced—supposed to stay there, didn't you? "A. Yes, sir. "Q. All right. Now what is it you are asking the Court to do here today? "A. I'm asking that I be tried and sentenced for what I am indicted for. I was not tried and sentenced for what I was indicted for. I was found guilty of escaping from a county jail and the sheriff and then I was sentenced to thirty years for escape from a penitentiary and a guard. "Q. All right. And that's what you are asking for? "MR. STOKES: I ... "A. I'm just asking to be treated like anybody else got treated." By his own testimony, appellant showed that he was guilty of the crime of escape, that he was rightfully convicted of a crime of escape, that he now has no genuine complaint as to the services of the attorney who represented him on the trial except that the attorney should not have endeavored to work out a plea bargaining disposition of his case on the basis that there was no valid charge against him for the more serious kind of an escape, and that his punishment should not have exceeded the maximum of the punishment prescribed for the escape committed by Rossi and some of the other escapees. His entire grievance was condensed into a mistaken notion as to the applicable law. It follows that he has presented no valid basis for post-conviction relief and that the trial court was not in error in denying his petition for writ of error coram nobis. As we have already indicated, the notion of appellant that the section of the Code under which he was convicted, § 13-5-65, does not exclusively embrace an escape by one who has been convicted of a felony, and for that reason another section of the Code would have been applicable to his case, is a mistaken one. However, the mistake is one easily made and is not without some reason, when we consider the absence of express language that the convict therein stated must be one convicted of a felony. In addition to what has been determined herein that the language of § 13-5-65, containing the phrase "either within or outside the walls of the penitentiary," limited its application to persons who had been convicted of a felony and sentenced to the penitentiary, and that none of the other sections of the Code would have been applicable to such convicts whose sentences had not expired, we call special attention to the true meaning of "convict" when used as a noun. This portion of the opinion is largely out of special consideration and respect for that which appears to be a persistent and sincere belief of appellant in the correctness of his construction of the law, as to which he has recently been an avid and resourceful student. We can readily see that in the language and terminology of the present time the noun "convict" is often used and understood as referable to one who has not been convicted of a felony and sentenced to the penitentiary, but, to avoid a misunderstanding, it is well to note that the word has a special signification in addition to its general meaning, which is thus well expressed: "1. A person proved guilty, by a competent tribunal, of a criminal offense; esp., a person convicted of, and under sentence for, a felony or serious crime. "2. Hence, in popular use, a person serving a prison sentence, usually for a long term." Webster's New International Dictionary (2d. ed.) No doubt the special meaning of the word was more generally ascribed to it in the distant past than was its general meaning, particularly in 1852, when the law contained in § 13-5-65 was first codified. In striking contrast, the statutory authority for § 13-5-63, applicable to convicts sentenced to imprisonment in the county jail or to hard labor for the county, is found in Acts 1959, No. 87, p. 508. It is to be noted that his attorney appointed by the court to represent him in his coram nobis proceeding, who has also represented him on appeal and has filed a brief *885 in his behalf, filed a motion in this court on January 9, 1981, that he be allowed to withdraw as counsel for appellant by reason of the fact that on January 20, 1981, he would become an "Assistant District Attorney for Covington County, Alabama," which would create a conflict of interest. The motion was granted by the Presiding Judge of this Court on the same day it was filed. Thereafter, appellant filed a motion for the appointment of counsel on appeal, in the light of the conflict of interest of his own attorney on this appeal. By letter of February 5, 1981, the Clerk of this Court advised appellant that she had been instructed to inform him that his appeal in this case had been submitted on the brief of his former attorney and that "Should your appeal be affirmed, the Court of Criminal Appeals will appoint an attorney for you for application for rehearing." This is to be promptly done so as to give the newly appointed attorney an opportunity to file an application for rehearing and a supporting brief. It is to be further noted, perhaps interestingly, that in requesting a particular attorney, naming him, appellant says that he "is a competent attorney and is very familiar with this for he is already representing a codefendant on his appeal connected with this same case." All of this is to be kept in mind and special consideration given to any question of "conflict of interest." The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby AFFIRMED. All the Judges concur. NOTES [1] The attorney does not now represent appellant, as explained in the concluding part of the opinion. [2] It is a photocopy, which complies with the Rules, but it is a dim copy, which does not comply with the spirit of the Rules, and we have been able with considerable strain to read it.

964 A.2d 1 (2009) COM. v. DECK. No. 512 MAL (2008). Supreme Court of Pennsylvania. January 16, 2009. Disposition of petition for allowance of appeal. Denied.

538 So.2d 1377 (1989) Alphonzo McCREARY, Appellant, v. STATE of Florida, Appellee. No. 88-777. District Court of Appeal of Florida, First District. March 2, 1989. Rehearing Denied March 31, 1989. Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant. Robert A. Butterworth, Atty. Gen., and Carolyn A. Mosley, Asst. Atty. Gen., Tallahassee, for appellee. ZEHMER, Judge. Alphonzo McCreary appeals his conviction of unlawful possession of drug paraphernalia *1378 on the ground that the trial court erred in denying his motion to suppress evidence seized from him at the time of his arrest. We reverse. The evidence in this case established that on September 13, 1987, at approximately 5:00 p.m., Deputy Sheriffs Allen Barton and Kenneth Forrester of the Escambia County Sheriff's Department observed a vehicle bearing Texas license plates parked in front of a lounge in a predominantly black area of Pensacola that is known for drug-related crimes. A white male was sitting in the driver seat; appellant, a black male, was sitting in the front passenger seat; a white female was sitting between the driver and appellant; and a second black male was sitting in the back seat. Although the officers observed no illegal activity, they parked their patrol car behind the subject car. Officer Barton then approached the driver and Officer Forrester approached the passenger's side of the vehicle. Officer Forrester asked appellant to get out of the car and asked him his name. Appellant gave him a false name. Forrester got the other persons' names, went back to the patrol car, and ran a warrant check on them, which came up negative. Meanwhile, Officer Barton talked to the driver, who had gotten out of the car. After the negative warrant check, Barton returned to look around the car and observed some needles on the floorboard of the right passenger side of the vehicle. Forrester and Barton then put the driver in the patrol car, and the driver told them that he was trying to buy narcotics from appellant and that appellant had the narcotics in his shoe. The driver said his wife had a serious narcotics habit and he was trying to purchase either heroin or cocaine for her. The officers then asked appellant if they could check his shoe. While appellant was taking off one of his shoes, Officer Barton noticed that appellant's hand was on the side of his foot and it appeared that he was trying to break up something. Barton reached down and grabbed appellant's hand, and at that point appellant shoved Barton to the ground and ran to the rear of the lounge. At that time, Barton's K-9 dog jumped out of the patrol car and pursued appellant. The dog caught appellant and the officers brought appellant under control and handcuffed him. Officer Forrester then looked in appellant's other shoe and found a small red balloon and two or three red capsules containing a white powdery substance. The lab report on this substance indicated that it was not any type of drug. The State charged appellant with unlawful possession of drug paraphernalia, along with other charges not pertinent to this appeal, and appellant filed a motion to suppress the seized evidence. After the court denied the motion, appellant entered a plea of no contest, reserving the right to appeal this denial, and the court adjudicated him guilty of unlawful possession of drug paraphernalia. Appellant argues on appeal that the court erred in denying his motion to suppress because the officers did not have the reasonable suspicion required for the detention to be constitutional. We find that the officers' actions of parking their patrol car behind the vehicle in which appellant was sitting, ordering the occupants out of the car, and asking their identities, constituted an investigatory stop. See Currens v. State, 363 So.2d 1116 (Fla. 4th DCA 1978) (officer conducted investigatory stop where he observed a legally parked vehicle, stationed himself where he could observe the car for a few minutes, saw no unusual activity, pulled his motorcycle up to and adjacent with the vehicle, noticed the defendant make a quick motion with his hand between his legs, and then ordered the defendant out of the vehicle). To be valid, the stop must have been predicated on a founded or reasonable suspicion requiring further investigation to determine whether the vehicle's occupants committed, were committing, or were about to commit a crime. McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986). See § 901.151, Florida Statutes (1987). In determining whether sufficient evidence to support a founded suspicion exists *1379 at the time of an investigatory stop, the court should consider all the facts that were known to the officers prior to the stop. Adams v. State, 523 So.2d 190 (Fla. 1st DCA 1988); State v. Lewis, 406 So.2d 79 (Fla. 2d DCA 1981). Here, Officer Barton testified that the "sum total of probable cause ... to approach the car" was that the car contained two blacks and two whites, bore out-of-state tags, and was parked in an area known for drug activity. Mere presence in a predominantly black, high-crime area is not a sufficient basis upon which to justify a stop. Bartlett v. State, 508 So.2d 567 (Fla. 2d DCA 1987); Cobb v. State, 511 So.2d 698 (Fla. 3d DCA 1987). Furthermore, the fact that an officer's suspicion of criminal activity is based in part on the fact that the car in which the defendant was riding contained a racially-mixed group of people does not justify an investigatory stop. Spann v. State, 529 So.2d 825 (Fla. 4th DCA 1988).[1] Accordingly, the facts of this case, even when taken together as viewed by experienced officers, were not sufficient to justify the investigatory stop, and the lower court erred in denying appellant's motion to suppress. The conviction is REVERSED and the case REMANDED with directions to discharge the defendant. SHIVERS and BARFIELD, JJ., concur. NOTES [1] In Spann, the officer noticed a vehicle containing a white female, white male, and black male stop in a black neighborhood, the driver pulled off the pavement onto the shoulder of the road and turned the headlights off, the black male exited car, walked down the street, entered a restaurant and returned to the car. The officer testified that he had seen other whites using black people to make drug purchases for them so they would not get "ripped off," and that he believed that to be the situation in Spann. The fourth district court held that these observations, even in light of the officer's experience and knowledge, were insufficient to constitute a founded suspicion that the defendant had committed, was committing, or was about to commit a crime justifying an investigatory stop.

70 F.3d 539 26 Envtl. L. Rep. 20,232, 95 Cal. Daily Op.Serv. 8761,95 Daily Journal D.A.R. 15,182 Pietro PARRAVANO; Wayne Heikkila; Marguerite Dodgin; EarlCarpenter; David Bitts; Liz Henry; Norman L. De Vall;Pacific Coast Federation of Fishermen's Associations, Inc.;Humboldt Fishermens' Marketing Association; CaitoFisheries, Inc.; Golden Gate Fisherman's Association;Salmon Trollers Marketing Association, Plaintiffs-Appellants,v.Bruce BABBITT, Secretary of the United States Department ofInterior; Ron Brown, Secretary, United StatesDepartment of Commerce, Defendants-Appellees,andSue MASTEN, Intervenor-Appellee. No. 94-16727. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 17, 1995.Decided Nov. 16, 1995. James M. Johnson, Olympia, Washington, for plaintiffs-appellants. Jacques B. Gelin, United States Department of Justice, Washington, DC, for defendants-appellees. George Forman, Alexander & Karshmer, Berkeley, California, for intervenor-appellee. Thomas F. Gede, Special Assistant Attorney General, Sacramento, California, for amicus States of California, Idaho, Nevada, North Dakota, Oklahoma, South Dakota and Vermont. Thomas P. Schlosser, Morisset, Schlosser, Ayer & Jozwiak, Seattle, Washington, for amicus Hoopa Valley Tribe. Appeal from the United States District Court for the Northern District of California. Before: SKOPIL, PREGERSON, and FERNANDEZ, Circuit Judges. PREGERSON, Circuit Judge: 1 Pietro Parravano, other commercial fishermen, and commercial fishing associations (collectively "Parravano") appeal the district court's order granting partial summary judgment in favor of defendants Interior Secretary Babbitt and Commerce Secretary Brown and dismissing the remainder of Parravano's claims. 2 In United States District Court, Parravano alleged that Secretary Brown violated the Magnuson Fishery Conservation and Management Act ("Magnuson Act"), 16 U.S.C. Sec. 1801 et seq., when he issued an emergency regulation that reduced the ocean harvest rate of Klamath River chinook for the fall 1993 season. The district court determined that executive orders issued in 1876 and 1891 and the 1988 Hoopa-Yurok Settlement Act, 25 U.S.C. Sec. 1300i et seq., vested the Hoopa Valley and Yurok Tribes (the "Tribes") with federally reserved fishing rights. The district court found that these fishing rights constituted "any other applicable law," 16 U.S.C. Sec. 1854(a)(1)(B), which the Secretary of Commerce could take into consideration when reviewing fishery management policies under the Magnuson Act. For this reason, the district court concluded that Secretary Brown did not violate the Magnuson Act when he issued emergency regulations for the fall 1993 ocean harvest. 3 Parravano also charged that Secretary Babbitt failed to comply with the Klamath River Basin Fishery Resources Restoration Act ("Klamath Act"), 16 U.S.C. Sec. 460ss, and the Trinity Basin Act ("Trinity Act"), Pub.L. No. 98-541, by failing to enforce limitations on Indian fishing in the Klamath River. The district court dismissed the claims against Secretary Babbitt, concluding that there was no basis for judicial review under the Administrative Procedure Act, 5 U.S.C. Sec. 551 et seq., and that Parravano did not have standing because there was neither an explicit nor an implicit private right of action under the Klamath and Trinity Acts.1 Parravano now appeals. 4 We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm for the same reasons stated by the district court in its orders published at 837 F.Supp. 1034 (N.D.Cal.1993) and 861 F.Supp. 914 (N.D.Cal.1994). Accordingly, we adopt those portions of the district court orders relating to the issues raised by Parravano on appeal. We write only to emphasize that Indian fishing rights, whether they arise from treaty, statute, or executive order, are to be treated the same under the Magnuson Act. BACKGROUND 5 We incorporate by reference the factual background to this case as set forth by the district court at 837 F.Supp. at 1038-39 and 861 F.Supp. at 917. We discuss only those facts relevant to the issues raised on appeal. 6 * The Klamath River fall chinook salmon is an anadromous fish that takes its name from the Klamath River where it spawns. By their very nature, anadromous fish live transient lives. They hatch in the upper tributaries of rivers such as the Klamath and migrate down to the Pacific Ocean where they spend much of their adulthood. At the age of three or four years, they instinctively return to the tributaries of their natal river where they spawn and then die. For generations, the Hoopa Valley and Yurok Indian tribes have depended on the Klamath chinook salmon for their nourishment and economic livelihood. See Arnett v. 5 Gill Nets, 48 Cal.App.3d 454, 121 Cal.Rptr. 906, 907-909 (1975); cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757 (1976); Memorandum from John D. Leshy, Solicitor of the Department of the Interior to the Secretary of the Interior 8 (Oct. 4, 1993) ("Interior Solicitor's Opinion"). In the past, we have observed that the Tribes' salmon fishery was "not much less necessary to [their existence] than the atmosphere they breathed." Blake v. Arnett, 663 F.2d 906, 909 (9th Cir.1981) (internal quotations omitted). 7 In 1876, President Grant issued an executive order formally establishing a reservation for the Tribes "to be set apart for Indian purposes, as one of the Indian reservations authorized to be set apart, in California, by Act of Congress approved April 8, 1864." I.C. Kappler, Indian Affairs: Laws and Treaties 815 (1904). In the years following the 1876 executive order, non-Indians encroached upon the Indian fisheries along the Klamath River, challenging the Indians' fishing rights. Interior Solicitor's Opinion, at 6. To resolve this problem, in 1891 President Harrison issued another executive order under the authority of the 1864 Act. See Donnelly v. United States, 228 U.S. 243, 258-59, 33 S.Ct. 449, 453-54, 57 L.Ed. 820 (1913), modified on other grounds, 228 U.S. 708, 33 S.Ct. 1024, 57 L.Ed. 1035 (1913). The 1891 order extended the Hoopa Valley Reservation to include the old Klamath Reservation and the strip of land connecting the two reservations. See Mattz v. Arnett, 412 U.S. 481, 493-94, 93 S.Ct. 2245, 2252-53, 37 L.Ed.2d 92 & app. (1973). Together, the 1876 and 1891 executive orders created the extended Hoopa Valley Reservation, which ran along both sides of the Klamath River, from the mouth of the Trinity River down to the Pacific Ocean. See id. 8 In 1988, Congress enacted the Hoopa-Yurok Settlement Act to divide the extended Hoopa Valley Reservation into the Yurok Reservation and Hoopa Valley Reservation. 25 U.S.C. Sec. 1300i. One of the concerns of Congress at the time of the 1988 partitioning was to protect the Tribes' fisheries. See Partitioning Certain Reservation Lands Between the Hoopa Valley Tribe and the Yurok Indians, to Clarify the Use of Tribal Timber Proceeds, and For Other Purposes, S.Rep. No. 564, at 14-15; H.R.Rep. No. 938, Pt. 1, at 20. II 9 Congress enacted the Magnuson Act, 16 U.S.C. Sec. 1801, to conserve ocean fishing resources and to protect these resources from foreign fishing. The Magnuson Act delegated to the Secretary of Commerce the authority to set harvest levels in ocean fisheries located between three and two hundred nautical miles offshore, 16 U.S.C. Sec. 1851. The Magnuson Act also established regional Fishery Management Councils, which are charged with recommending to the Secretary of Commerce ocean harvest limits and salmon "escapement" levels.2 16 U.S.C. Sec. 1852. The Secretary of Commerce reviews the regional councils' recommendations for consistency with the national standards set forth in the Magnuson Act and "any other applicable law." 16 U.S.C. Sec. 1854(a)(1)(B).3 The Magnuson Act, however, does not require the Secretary to follow a regional council's recommendations; he may reject them and, when necessary, promulgate ninety-day emergency regulations in their stead. 16 U.S.C. Secs. 1854, 1855(b). 10 The regional council charged with formulating recommendations for the Klamath River chinook harvest is the Pacific Fishery Management Council ("Pacific Council"). Through the fall of 1993, Pacific Council had consistently failed to set harvest regulations sufficient to meet conservation requirements, forcing the Interior Department to severely curtail Indian salmon harvesting in the Klamath River. According to the Interior Department, this failure was adversely affecting the Tribes' reservation fisheries. See Letter from Eddie F. Brown, Assistant Secretary for Indian Affairs, Department of the Interior, to Barbara Hackman Franklin, Secretary of Commerce, 1-3 (May 19, 1992) ("Brown Letter"). Seeking a more equitable distribution of the Klamath chinook resource, Secretary Babbitt met with Secretary Brown to coordinate regulation of the fall 1993 harvest. Secretary Babbitt informed Secretary Brown that the Interior Department believed that the Tribes were entitled to a fifty-percent share of the total Klamath chinook harvest and that ocean harvesting of this salmon would have to be curtailed so that a sufficient number of the fish could reach the Klamath River for tribal harvests as well as for spawning. See Interior Solicitor's Opinion, at 27. 11 On April 14, 1993, Pacific Council recommended harvest levels for the fall season. Although Secretary Brown had announced his desire to issue regulations consistent with providing the Tribes with a fifty-percent allocation of the salmon, Pacific Council authorized a 22% ocean harvest rate, with a spawning escapement floor of 35,000 fish. These ocean harvest levels exceeded the levels necessary to reserve fifty percent of the harvest for the Tribes' Klamath River fisheries. Faced with the possibility that Pacific Council's recommended ocean harvest levels would either fail to meet Magnuson Act goals or would compromise the resource rights of the Tribes, Secretary Brown suspended Pacific Council's regulations. Because of the imminent commencement of the fall 1993 season, he issued ninety-day emergency regulations that set a lower ocean harvest rate of 14.5% and a higher salmon escapement floor of 38,000 fish for the fall 1993 season. STANDARDS OF REVIEW 12 We review the district court's grant of summary judgment de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), petition for cert. filed, 64 U.S.L.W. 3271 (Sept. 20, 1995). We review interpretations of statutes and regulations de novo. Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 783 (9th Cir.1995) (statute); Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 918 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 337, 133 L.Ed.2d 236 (1995) (regulation). With respect to an action taken by the Secretary of Commerce under the Magnuson Act, we have limited judicial review, 16 U.S.C. Sec. 1855(b), and may only invalidate the challenged action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A); Pacific Coast Federation of Fishermen's Ass'ns v. Secretary of Commerce, 94 F.Supp. 626, 627-28 (N.D.Cal.1980). 13 As for Indian affairs, we must assume that the Department of the Interior has been given reasonable power to discharge effectively its broad responsibilities in this area. United States v. Eberhardt, 789 F.2d 1354, 1361 (9th Cir.1986); Udall v. Littell, 366 F.2d 668, 672 (D.C.Cir.1966), cert. denied, 385 U.S. 1007, 87 S.Ct. 713, 17 L.Ed.2d 545 (1967) Thus, although we review questions of statutory interpretation de novo, in reviewing the Secretary's actions, we give substantial deference to his interpretation of the applicable statutes and executive actions that give rise to tribal rights. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). 14 Statutory interpretation and standing issues raised under the Klamath and Trinity Acts are reviewed de novo. See ACF Indus., Inc. v. California State Bd. of Equalization, 42 F.3d 1286, 1289 (9th Cir.1994). 15 CONSTRUCTION OF STATUTES AND EXECUTIVE ORDERS ESTABLISHING, MODIFYING OR EXTINGUISHING INDIAN RESERVATIONS 16 The rule of construction applicable to executive orders creating Indian reservations is the same as that governing the interpretation of Indian treaties. Executive orders, no less than treaties, must be interpreted as the Indians would have understood them "and any doubtful expressions in them should be resolved in the Indians' favor." Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 90 S.Ct. 1328, 1334, 25 L.Ed.2d 615 (1970); United States v. State of Washington, 969 F.2d 752, 755 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1945, 123 L.Ed.2d 651 (1993). In interpreting statutes that terminate or alter Indian reservations, we construe ambiguities in favor of the Indians. DeCoteau v. District County Court for Tenth Judicial Dist., 420 U.S. 425, 444, 95 S.Ct. 1082, 1092, 43 L.Ed.2d 300 (1975); Confederated Salish and Kootenai Tribes of Flathead Reservation, Mont. v. Namen, 665 F.2d 951, 955 (9th Cir.1982), cert. denied, 459 U.S. 977, 103 S.Ct. 314, 74 L.Ed.2d 291 (1982). Rights arising from these statutes must be interpreted liberally, in favor of the Indians. Pacific Coast, 494 F.Supp. at 633 n. 6 (citing Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 569, 56 L.Ed. 941 (1912)). ANALYSIS 17 Under the Magnuson Act, the Secretary of Commerce may issue emergency regulations to achieve consistency with the national standards set forth in the Act and "any other applicable law." 16 U.S.C. Secs. 1853(a)(1)(C), 1854(a)(1)(B). Indian fishing rights that exist under federal law may constitute "any other applicable law." Washington State Charterboat Ass'n v. Baldrige, 702 F.2d 820, 823 (9th Cir.1983), cert. denied, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 194 (1984) (Northwest Indian treaty fishing rights constitute "other applicable law" under Magnuson Act). Therefore, the question before this court is whether the Hoopa Valley and Yurok Tribes retain federally reserved fishing rights that constitute "any other applicable law" within the meaning of the Magnuson Act. They do. 18 * Parravano contends that the Tribes hold no fishing rights that constitute "other applicable law" within the meaning of the Magnuson Act because their reservations were created not by treaty but by executive orders authorized by Congress. The problem with Parravano's position is threefold. First, a treaty/executive order distinction has no historical or legal significance with respect to the Tribes involved here. Second, a treaty/executive order distinction contradicts the doctrine that the grant of hunting and fishing rights is implicit in the setting aside of a reservation "for Indian purposes." Third, a treaty/executive order distinction is inconsistent with the well-established federal trust obligation owed to the Indian tribes. 19 Parravano argues that affording equal dignity to tribal fishing rights emanating from executive orders unfairly grants rights to executive order reservation tribes. He asserts that such a holding would debase the rights of treaty tribes. Parravano reasons that enforcing the Tribes' fishing rights would grant promises made to Indian tribes through executive order the same solemnity as promises made to tribes by treaty. These arguments are unpersuasive and contrary to federal law and policy. 20 We have long held that when it comes to protecting tribal rights against non-federal interests, it makes no difference whether those rights derive from treaty, statute or executive order, unless Congress has provided otherwise. See, e.g., United States v. Southern Pac. Transp. Co., 543 F.2d 676, 685-86 (9th Cir.1976); Gibson v. Anderson, 131 F. 39, 41-42 (9th Cir.1904); McFadden v. Mountain View Mining & Milling Co., 97 F. 670, 673 (9th Cir.1899), rev'd on other grounds 180 U.S. 533, 21 S.Ct. 488, 45 L.Ed. 656 (1901). 21 With respect to the Hoopa Valley and Yurok Tribes, the California courts concluded nearly two decades ago that, as against non-federal interests, tribal rights derived from executive order are treated the same as treaty rights. In Arnett v. 5 Gill Nets, the California Court of Appeal acknowledged that the executive orders establishing the extended Hoopa Valley Reservation created recognizable fishing rights. See Arnett, 121 Cal.Rptr. at 907-909. In fact, the Arnett court sharply rejected a treaty/executive order distinction, aptly noting that the Hoopa Valley Reservation was created by executive order authorized by federal statute. See id. at 460, 121 Cal.Rptr. at 909-10. 22 In 1976, when the State of California petitioned the United States Supreme Court for certiorari in Arnett, the federal government opposed the petition, arguing that the fishing rights of these Tribes were tantamount to treaty rights. As Solicitor General Robert Bork explained to the Court: 23 That executive orders played a prominent role in the creation of the [Hoopa Valley] Reservation does not change this result [that the United States reserved to the Indians the right to fish on the Reservation without state interference]. Regardless of the manner in which a reservation is created the purpose is generally the same: to create a federally-protected refuge for the tribe.... 24 With respect to fishing rights we see no reason why a reservation validly established by executive order should be treated differently from other reservations. 25 Memorandum for the United States as Amicus Curiae, at 5 (writing in opposition to California's petition for a grant of certiorari in Arnett ). 26 Solicitor General Bork's conclusion was well-founded. Although the Executive Branch engaged in treaty-making with the Indian tribes before 1871, in that year Congress decided that it would no longer negotiate treaties with the tribes. Congress thus suspended the entire process of treaty negotiation with the Indian tribes and delegated power to the President to create specified numbers of Indian reservations. 25 U.S.C. Sec. 71. "Reservations established after 1871 were accordingly created either by statute or, until Congress ended the practice in 1919, by executive order." William C. Canby, American Indian Law 17-18 (2d ed.1988). 27 Because of this historical background, we emphasize that there are no broad distinctions between Indian reservations created before 1871 and those created after. Although their manner of creation is different, they are substantively the same, at least with respect to non-federal interests. We agree with the observation that: 28 [M]any federal Indian law decisions, especially those dealing with developments since the mid-nineteenth century, turn not on treaty language, but on the text of seemingly more mundane instruments of law, such as statutes, executive orders, and federal regulations.... This difference in form should not, however, substantially alter judicial methodology. Some of these non-treaty enactments embody agreements with tribes that would have been handled by treaty in former eras. 29 Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism and Interpretation in Federal Indian Law, 107 Harv.L.Rev. 381, 421 & n. 164 (1993). 30 With Congress's authorization, the 1876 and 1891 executive orders first created and then extended a reservation "for Indian purposes" along the main course of the Klamath River. Donnelly, 228 U.S. at 253, 33 S.Ct. at 451. We have never encountered difficulty in inferring that the Tribes' traditional salmon fishing was necessarily included as one of those "purposes." See United States v. Wilson, 611 F.Supp. 813, 817-18 (N.D.Cal.1985), rev'd on other grounds sub. nom., United States v. Eberhardt, 789 F.2d. 1354 (9th Cir.1986). Our interpretation accords with the general understanding that hunting and fishing rights arise by implication when a reservation is set aside for Indian purposes. See Menominee Tribe v. United States, 391 U.S. 404, 406, 88 S.Ct. 1705, 1707, 20 L.Ed.2d 697 (1968); Pacific Coast, 494 F.Supp. at 632. Thus, we reject Parravano's novel theory that ambiguity in the phrase "for Indian purposes" should be resolved against the Tribes. 31 In partitioning the original reservation in 1988, Congress recognized the importance of the Tribes' rights to fish along the Klamath River. Although the 1988 Hoopa-Yurok Settlement Act did not explicitly set aside fishing rights, it did make clear that the partitioning would not dispossess the Tribes of their assets. The legislative history of the 1988 Act indicates that Congress was aware that each Tribes' interests in their salmon fisheries was one of its principal assets. For example, Congress explained that: 32 The legislation will also establish and confirm the property interests of the Yurok Tribe in the Extension, including its interest in the fishery, enabling the Tribe to organize and assume governing authority in the Extension. 33 S.R. 564, 100th Cong., 2d Sess., 2-9 (1988); H.R. 938, Pt. 1, 100th Cong., 2d Sess., 8-15. Given this legislative history, we cannot accept Parravano's invitation to interpret the 1988 Hoopa-Yurok Settlement Act as a divestiture of the Tribes' federally reserved fishing rights. Barring explicit Congressional instructions to the contrary, we must construe any ambiguities in the executive orders and in the 1988 Hoopa-Yurok Settlement Act in the Tribes' favor. See DeCoteau, 420 U.S. at 444, 95 S.Ct. at 1092; Confederated Salish and Kootenai Tribes, 665 F.2d at 955. 34 We have noted, with great frequency, that the federal government is the trustee of the Indian tribes' rights, including fishing rights. See, e.g., Joint Bd. of Control v. United States, 862 F.2d 195, 198 (9th Cir.1988). This trust responsibility extends not just to the Interior Department, but attaches to the federal government as a whole. Eberhardt, 789 F.2d at 1363 (Beezer, J., concurring); see also Pyramid Lake Paiute Tribe v. United States Dept. of Navy, 898 F.2d 1410, 1420 (9th Cir.1990); Covelo Indian Community v. FERC, 895 F.2d 581, 586 (9th Cir.1990). In particular, this court and the Interior Department have recognized a trust obligation to protect the Yurok and Hoopa Valley Tribes' rights to harvest Klamath chinook. See Eberhardt, 789 F.2d at 1359-62; Interior Solicitor's Opinion, at 29. 35 Secretary Brown fulfilled his federal trust obligations by issuing emergency regulations for the fall 1993 ocean harvest of Klamath chinook. The Secretary acted in response to ocean overharvesting of Klamath chinook which threatened the Tribes' ability to harvest their share of the salmon. Parravano, 861 F.Supp. at 914. Upon these facts, we agree with the district court that Secretary Brown did not act arbitrarily or capriciously when he chose to reformulate Pacific Council's fishing recommendations to guarantee that the Tribes would receive their fair share of the salmon harvest. II 36 Parravano argues that even if the Tribes have fishing rights, these rights cannot extend outside of the reservation because they do not derive from a treaty. According to this reasoning, because the Tribes' fishing rights arise out of executive orders, the Secretary of Commerce cannot regulate ocean fishing in order to protect Indian salmon harvests. We rejected a similar argument in Washington Charterboat. There, we found that there is "nothing in the language of the Magnuson Act or in its legislative history that even remotely suggests that Congress intended to abrogate or modify" Indian treaties which included salmon fishing rights. Washington Charterboat, 702 F.2d at 823. Because we reject a broad treaty/executive order distinction, especially with regard to the Hoopa Valley and Yurok Tribes' fishing rights, Washington Charterboat applies here. 37 The Klamath chinook is an anadromous species. As a result, successful preservation of the Tribes' on-reservation fishing rights must include regulation of ocean fishing of the same resource. Indeed, allowing ocean fishing to take all the chinook available for harvest before the salmon can migrate upstream to the Tribes' waters would offer no protection to the Indians' fishing rights. We must conclude, as we did in Washington Charterboat, that the Tribes' federally reserved fishing rights are accompanied by a corresponding duty on the part of the government to preserve those rights. 38 Our conclusion is not a new one. Nearly a decade has elapsed since Judge Beezer of this court first observed uncoordinated regulation of Pacific Ocean fishing and the Tribe's fisheries. See United States v. Eberhardt, 789 F.2d 1354, 1363 (9th Cir.1986) (Beezer, Circuit Judge, concurring). He noted then, as we note now, that overharvesting of the Klamath chinook in the Pacific Ocean results in dwindling numbers of salmon able to survive for spawning. Id.; Brown Letter at 1-3. Low spawning levels, in turn, reduce further the number of Klamath chinook available for future harvests, thus creating long-term conservation concerns. See Eberhardt, 789 F.2d at 1363 (Beezer, Circuit Judge, concurring). 39 Specific harm to the Indians' fisheries is clear. The low numbers of salmon escaping Pacific trolling has forced the Department of the Interior to preserve a sufficient number of salmon for spawning by dramatically reducing the number of salmon that the Tribes are allowed to harvest. The government has continued to allow ocean fishermen to overharvest the Klamath chinook. This ocean overharvesting has reduced the number of salmon remaining for upstream reproduction and, as a result, has only increased the conservation burden placed on the Tribes. Id.; see also Brown Letter, at 1-3. 40 Given Pacific Council's past reluctance to set ocean harvest levels that would guarantee adequate upstream spawning for conservation of the Klamath chinook, as well as the imminent harm that would befall the Tribes if ocean overharvesting were allowed to continue, Secretary Brown had ample justification for an emergency departure from Pacific Council's recommendations. Indeed, the Magnuson Act requires the Secretary to scrutinize carefully the suggested harvest levels promulgated by the regional councils. When the councils' recommendations threaten conservation goals or undermine other federal laws and obligations, the Secretary must reject them. If the councils refuse to comply with national standards or "any other applicable law," the Secretary may need to issue emergency regulations. Here, Secretary Brown issued emergency regulations to conserve salmon runs and to ensure consistency with "any other applicable law," which includes the Tribes' federally reserved fishing rights. Parravano, 837 F.Supp. at 1042-44; 861 F.Supp. at 914. The district court therefore correctly held that Secretary Brown's actions were not arbitrary, capricious, or an abuse of discretion. CONCLUSION 41 We affirm the district court's orders. In so doing, we emphasize that Indian rights arising from executive orders are entitled to the same protection against non-federal interests as Indian rights arising from treaties. See Southern Pac. Transp. Co., 543 F.2d at 685-86. 42 Under the Magnuson Act, the Secretary of Commerce may issue regulations affecting coastal fishing to protect against violations of "other applicable law." The 1876 and 1891 executive orders that created the extended Hoopa Valley Reservation and the 1988 Hoopa-Yurok Settlement Act vested the Tribes with federally reserved fishing rights that constitute "other applicable law" within the meaning of the Magnuson Act. 43 Secretary Brown is a trustee of tribal interests as well as the administrator of the Magnuson Act; he properly considered the Tribes' federally reserved fishing rights in issuing emergency regulations reducing ocean harvest limits of the Klamath chinook. 44 Finally, because of the migratory nature of the Klamath chinook, the protection of upstream tribal fishing rights depends on coordinating regulation of ocean and river fishing. 45 AFFIRMED. 1 In district court, Parravano also charged that the actions of Secretaries Brown and Babbitt violated the Civil Rights Act, 42 U.S.C. Sec. 1981, the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552b, and the United States Constitution. The district court held that this action did not present any due process or equal protection violations. See Parravano v. Babbitt, 861 F.Supp. 914, 926-931 (N.D.Cal.1994). Parravano does not appeal these holdings 2 "Escapement" literally refers to the number of salmon that are allowed to "escape" harvest and to spawn 3 16 U.S.C. Sec. 1854(a)(1)(B) provides: (1) After the Secretary receives a fishery management plan, ... which was prepared by a Council, the Secretary shall-- (B) Immediately commence a review of the management plan or amendment to determine whether it is consistent with the national standards, the other provisions of this chapter, and any other applicable law. (Emphasis added).

[Cite as State v. Goss, 2017-Ohio-161.] COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 16 COA 023 GARRETT S. GOSS Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. 16 TRC 1963 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: January 17, 2017 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant ANDREW N. BUSH MATTHEW J. MALONE ASSISTANT LAW DIRECTOR THE LAW OFFICES OF 1213 East Main Street MATTHEW J. MALONE, LLC Ashland, Ohio 44805 10 East Main Street Ashland, Ohio 444805 Ashland County, Case No. 16 COA 023 2 Wise, P. J. {¶1} Appellant Garrett S. Goss appeals his conviction, following a no contest plea, in the Municipal Court of Ashland County, for operating a motor vehicle under the influence and improper operation at a stop sign. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows. {¶2} On March 26, 2016, Officer Cody Hying of the Ashland Police Department stopped Appellant Goss for failing to stop at a marked bar or line at an intersection (Ashland Codified Ordinance § 331.19(a)), having observed him come to a stop at an intersection with the engine compartment of his 2004 Toyota Tacoma extended-cab pickup truck beyond the stop line and the rear wheels of his vehicle behind it, such that appellant’s “driver’s door was on top of the stop bar.” Hying Testimony, Suppression Tr. at 6. {¶3} Based on Officer Hying’s subsequent observations and investigation at the scene, appellant was charged with OVI (R.C. 4511.19(A)(1)(a) and (A)(1)(d)) and improper operation of vehicles at a stop sign (A.C.O. § 331.19(a)), under trial court case number 16 TRC 1963. In addition, appellant was charged with possession of drug paraphernalia (A.C.O. § 513.12(C)(1)) and possession of marihuana (A.C.O. § 513.03(C)(2)) under trial court case number 16 CRB 382. {¶4} Appellant thereafter entered pleas of not guilty to all charges. On April 19, 2016, appellant filed in each case a motion to suppress the evidence obtained as a result of the traffic stop. A joint hearing on the motions was held on May 6, 2016. {¶5} After taking the matter under advisement, the trial court denied appellant’s motion(s) to suppress via a judgment entry issued June 21, 2016. Ashland County, Case No. 16 COA 023 3 {¶6} On June 22, 2016, appellant entered no contest pleas to OVI (R.C. 4511.19(A)(1)(a) and (A)(1)(d)) and the stop sign violation in 16 TRC 1963, as well as possession of drug paraphernalia and possession of marihuana in 16 CRB 382. Formal sentencing entries on the two cases were issued on July 6, 2016. {¶7} Appellant filed a notice of appeal on June 30, 2016. He herein raises the following sole Assignment of Error: {¶8} “THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS.” I. {¶9} In his sole Assignment of Error, appellant contends the trial court erred in denying his motion to suppress. We disagree. {¶10} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's finding of fact. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this third type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N .E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. The United States Supreme Court has held that “... as a general matter Ashland County, Case No. 16 COA 023 4 determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.” Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911. {¶11} A.C.O. § 331.19(a) governs stopping at stop signs within Ashland’s municipal jurisdiction. It states, in pertinent part: "Except when directed to proceed by a law enforcement officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, but if none before entering the crosswalk on the near side of the intersection ***.” (Emphasis added).1 {¶12} In the case sub judice, appellant argues that the trial court incorrectly decided the ultimate or final issue raised in his motion to suppress. See Appellant’s Brief at 3-4. Thus, appellant is presently not focused on the court’s basic factual findings. However, we would at least note the trial court found a lack of credibility in appellant’s suppression testimony that he was certain he had stopped his vehicle twice at the intersection, once before the stop bar and once beyond it. See Judgment Entry Regarding Motion to Suppress, at 2. {¶13} The Ohio Supreme Court has stated: “ * * * [I]f an officer's decision to stop a motorist for a criminal violation, including a traffic violation, is prompted by a reasonable and articulable suspicion considering all the circumstances, then the stop is constitutionally valid.” State v. Mays, 119 Ohio St.3d 406, 894 N.E.2d 1204, 2008–Ohio– 4539, ¶ 8. It is well-established that an officer's reasonable articulable suspicion does not require proof beyond a reasonable doubt that the defendant's conduct has satisfied the elements of the offense. State v. Willis, 5th Dist. Licking No. 14 CA 103, 2015–Ohio– 1 The language of A.C.O. § 331.19(a) reflects the language found in R.C 4511.43(A). Ashland County, Case No. 16 COA 023 5 3739, ¶ 25, citing Westlake v. Kaplysh, 118 Ohio App.3d 18, 20, 691 N.E.2d 1074 (8th Dist.1997). {¶14} Appellant directs us inter alia to State v. Drushal, 9th Dist. Wayne No. 13CA0028, 2014–Ohio–3088, wherein the Ninth District Court of Appeals found the basic language in the Wooster Codified Ordinances that “a vehicle approaching a stop sign shall stop at a clearly marked stop line” to be unambiguous. Id. at ¶ 12. We note the facts in Drushal indicate the driver had stopped either just at or somewhat on top of the stop line, but not “before” it, which is how the Wooster officer making the traffic stop in that case had interpreted the law. See id. at ¶ 4. Appellant herein maintains that under Drushal, a driver does not have to stop his or her vehicle just before a stop line or bar in order to be “at” the line for purposes of the ordinance in question. {¶15} We find Drushal provides only limited guidance in our present analysis, as the opinion does not make entirely clear how similar the car’s position was to the situation before us of an operator fully straddling the stop line between the front engine compartment area and the rear axle of his or her vehicle. Furthermore, we do not agree with the Ninth District’s assessment that the “stop line” language found in ordinances such as those of Wooster and Ashland is inherently clear and unambiguous. {¶16} In contrast, the Third District Court of Appeals has concluded that the “stop line” language of R.C. 4511.43(A), i.e., the requirement that a motorist stop at a clearly marked stop line, is reasonably susceptible to more than one interpretation. See State v. Miller, 3rd Dist. Marion No. 9–14–50, 2015-Ohio-3529, ¶ 17. Noting the legislative goal of protecting the safety of motorists and pedestrians, and recognizing that stop lines are often used to protect other motorists by allowing adequate room for large vehicles to Ashland County, Case No. 16 COA 023 6 complete their turns at intersections, the Third District Court therein stated: “ *** [W]e interpret the statute to require a motorist to stop prior to the point at which the front-most portion of his or her vehicle will break the plane of the outermost edge of the clearly marked stop line to most readily further the General Assembly's purpose in enacting R.C. 4511.43(A).” Id. at ¶ 22. {¶17} Upon review, we find the officer's decision in this instance to stop appellant under A.C.O. 331.19(a) was supported by a reasonable and articulable suspicion of a violation of Ashland’s traffic laws, and we therefore find no reversible error in the trial court's denial of appellant's suppression motion in the instant case. {¶18} Appellant's sole Assignment of Error is overruled. {¶19} For the foregoing reasons, the judgment of the Municipal Court, Ashland County, Ohio, is hereby affirmed. By: Wise, P. J. Baldwin, J., concurs. Delaney, J, dissents. JWW/d 1222 Ashland County, Case No. 16 COA 023 7 Delaney, J., dissenting. {¶20} I respectfully dissent from the majority opinion. Based upon a review of all the circumstances of this case, I disagree the facts support a conclusion that a reasonable and articulable suspicion existed to support a constitutionally valid traffic stop of Appellant’s vehicle. Therefore, I would sustain Appellant’s sole assignment of error in part. {¶21} There is little doubt in this case the stop of Appellant’s vehicle was pretextual. The officer having followed Appellant’s vehicle upon his departure from a bar in the early morning hours of March 26, 2016, and then shortly thereafter pulls Appellant over in a residential neighborhood for a “stop line” violation. {¶22} According to the officer, the Appellant stopped at a stop sign at the intersection of Cottage Street and West 10th Street in Ashland, Ohio. Photographs of the intersection are shown in State’s Exhibit 1. The photos show the stop sign with a faded stop line directly even with the stop sign, and a similarly faded crosswalk approximately a yard beyond the stop line. {¶23} The officer testified that while Appellant obeyed the stop sign, his vehicle straddled or stopped over the stop line such that his driver’s door was on top of the stop bar and the engine compartment of the truck was into the crosswalk. The rear wheels of the truck were behind the stop bar. Without any indication of unreasonable driving or hazard to any potential oncoming traffic or pedestrians, the officer initiated a traffic stop because Appellant failed to stop his entire vehicle before or “at” the stop line and had partially stopped in the crosswalk, which is very close to the stop line. Ashland County, Case No. 16 COA 023 8 {¶24} As found by the majority, Ashland Codified Ordinance 331.19(a) mirrors similar local ordinances and R.C. 4511.43(A), which states, in relevant part: “Except when directed to proceed by a law enforcement officer, every driver of a vehicle * * * approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it.” (Emphasis added.) {¶25} At least two Ohio Appellate Districts have issued conflicting rulings on whether the meaning of the word “at” as used in the statute or similar ordinances means “in, on or near” the stop line as was held by the Ninth District in State v. Drushal, 2014- Ohio-3088 or means “the point at which the front-most portion of his or her vehicle will break the plane of the outermost edge of the clearly marked stop line” as held by Third District in State v. Miller, 2015-Ohio-3529. {¶26} I would follow the reasoning of the Ninth District in Drushal, and find the word “at” is clear and unambiguous, and does not require a vehicle to be stopped completely before the stop bar. It would be extremely difficult for a driver to determine if his or her vehicle had “broken the plane” of the stop line or crosswalk while riding in their vehicle. Likewise, R.C. 4511.712 permits vehicles to enter an intersection or marked crosswalk as long as there is sufficient space for the passage of other vehicles or pedestrians. The Ninth District’s reasoning also appears to follow the practices of many drivers. Therefore, I would reverse the ruling of the trial court based upon the facts of this case. Ashland County, Case No. 16 COA 023 9 

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: June 11, 2015 516551 ________________________________ In the Matter of KYLEE Y. and Others, Alleged to be Neglected Children. CLINTON COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; LYNN AA., Respondent. TIMOTHY Z., Appellant. (Proceeding No. 1.) _______________________________ MEMORANDUM AND ORDER In the Matter of KYLEE Y. and Others, Alleged to be Neglected Children. CLINTON COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; DONALD Y., Respondent. TIMOTHY Z., Appellant. (Proceeding No. 2.) ________________________________ Calendar Date: April 29, 2015 Before: Peters, P.J., Garry, Rose and Devine, JJ.  -2- 516551 __________ Allan B. Cruikshank, Plattsburgh, for appellant. Allison W. Mussen, Clinton County Department of Social Services, Plattsburgh, for Clinton County Department of Social Services, respondent. Omshanti Parnes, Plattsburgh, attorney for the children. __________ Rose, J. Appeals from two orders of the Family Court of Clinton County (Lawliss, J.), entered March 11, 2013, which granted petitioner's applications, in two proceedings pursuant to Family Ct Act article 10, to adjudicate respondents' children to be neglected, and modified an award of supervised visitation to Timothy Z. Timothy Z. (hereinafter the father) is the father of twins, Brandy Y. and Cedar Y. (born in 2008). Respondent Lynn AA. is the mother of the twins and she also has two other children, who are not the subject of this appeal, with respondent Donald Y. Petitioner commenced these proceedings against Lynn AA. and Donald Y. alleging that they had neglected all four of the children, and the father appeared as a nonrespondent parent (see Family Ct Act § 1035 [d]). Family Court determined that the children were neglected and entered dispositional orders which, as relevant here, provided the father with visitation supervised by petitioner. The father appeals, arguing that Family Court did not have a sound and substantial basis to name petitioner as the supervisor of visitation. Since the March 2013 entry of the dispositional orders on appeal, however, Family Court (Ryan, J.) issued permanency orders terminating the father's right to  -3- 516551 visitation with his children.1 Those orders were entered in November 2014, and it is our understanding that they have not been appealed. Accordingly, these subsequent orders render the appeals moot, inasmuch as the rights of the father will not be "'directly affected by the determination of the appeal[s]'" (Matter of Veronica P. v Radcliff A., 24 NY3d 668, 671 [2015], quoting Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see Matter of Lauren L. [Cassi M.], 79 AD3d 1172, 1172 [2010]; Matter of Ariel FF., 63 AD3d 1202, 1203 [2009]). Peters, P.J., Garry and Devine, JJ., concur. ORDERED that the appeals are dismissed, as moot, without costs. ENTER: Robert D. Mayberger Clerk of the Court 1 We take judicial notice of those orders (see Matter of Hannah U. [Patti U.], 110 AD3d 1258, 1260 n 5 [2013]). 

155 Cal.App.2d 225 (1957) D. H. BELL, Respondent, v. ANNABELLE TOWNE, Appellant. Civ. No. 22531. California Court of Appeals. Second Dist., Div. One. Nov. 14, 1957. Willedd Andrews for Appellant. Leo Goodman and Gizella L. Allen for Respondent. FOURT, J. This is an appeal from a judgment in favor of the plaintiff quieting her title to two vacant lots. This action was filed November 20, 1953. In 1946, the plaintiff herein filed an action, which will hereinafter be referred to as the "first action," to quiet title to the same two lots involved in the present action. The matter was heard in the same court, against the same defendant-appellant, her husband, and Catherine A. McKenna, and plaintiff received a judgment quieting the title in plaintiff, which judgment was sustained on appeal in 95 Cal.App.2d 398 [213 P.2d 73], and became final on May 25, 1950. In the first action the appellant herein appeared and answered in propria persona and testified at the trial that she did not own any part of either lot and that she only claimed the right to take care of the lots for Mrs. McKenna. The judgment in the first action was in the usual form. The present action was filed about three and one-half years after the judgment in the first action became final. The complaint in the present case set forth and pleaded a copy of the judgment in the first action, as well as a copy of the opinion of the District Court of Appeal. The appellant answered by denying that the plaintiff owned the property, but made no denial of the record of the first action. She further answered, by way of a special defense, that she was the owner of the property in question. There was no plea of the statute of limitations. The evidence disclosed that the first time appellant saw or communicated with plaintiff, or anyone representing her, *227 following the first action was in the fall of 1953, at which time a representative of the plaintiff called on appellant to discuss the sale of the lots to appellant, and plaintiff through her representative thereupon discovered for the first time subsequent to the first action, that appellant claimed an interest in the lots. A title search was requested and plaintiff ascertained that a quitclaim deed dated April 28, 1952, from a Catherine A. McKenna to the appellant Towne had been recorded on April 29, 1952. Plaintiff then brought this action to remove the cloud on the title caused by the recording of the quitclaim deed, and also to remove any other possible claim of the appellant. At the trial there was received into evidence the file of the first action, which included the exhibits, pleadings, judgment and a copy of the opinion of the District Court of Appeal. [1, 2] It has been held that, "When a former judgment is properly pleaded in a complaint, such judgment may be considered by the trial court in determining whether it is res judicata of a plaintiff's alleged cause of action" and, "... it is the general rule that a final judgment is res judicata of the issues involved therein where the trial court had jurisdiction." (Weil v. Barthel, 45 Cal.2d 835, 837 [291 P.2d 30].) [3] It was stated in Todhunter v. Smith, 219 Cal. 690, at pages 694-695 [28 P.2d 916], as follows: "By virtue of the doctrine of res judicata the final determination of a court of competent jurisdiction necessarily affirming the existence of any fact is conclusive evidence of the existence of that fact when it is again in issue in subsequent litigation between the same parties in the same or any other court. The facts decided in the first suit cannot be disputed or relitigated although the later suit is upon a different cause of action. (Citing cases and authority.) The doctrine of res judicata has a double aspect. [4] A former judgment operates as a bar against a second action upon the same cause, but in a later action upon a different claim or cause of action, it operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action." The Todhunter case is cited with approval in Taylor v. Hawkinson, 47 Cal.2d 893, 895 [306 P.2d 797]. [5] The appellant made an effort to attack collaterally the judgment in the first action by attempting to show that McKenna was a disbarred attorney and therefore could not represent the appellant therein. The record discloses that *228 appellant was in court in propria persona, as was McKenna. No such collateral attack can be permitted. (Hollyfield v. Geibel, 20 Cal.App.2d 142, 148 [66 P.2d 755]; Westphal v. Westphal, 20 Cal.2d 393, 397 [126 P.2d 105].) [6] The plaintiff established a prima facie case in her favor when she pleaded the judgment and the appellate court opinion, and at the trial caused to be received into evidence the file of the first action (including the judgment which established that she was the owner of the property in question, and that the appellant had no right, title or interest in the property, and that she was enjoined from claiming any). The burden then shifted to the appellant. It was appropriately stated in Madden v. Alpha Hardware & Supply Co., 128 Cal.App.2d 72, at page 75 [274 P.2d 705]: "It should be noted that the primary question for determination is the validity of plaintiffs' title, if any--not the strength or weakness of defendant's title; in other words, the sufficiency of the evidence to support the finding of the trial court that plaintiffs have title to the property in question." "The plaintiffs, having shown legal title in themselves, it is presumed that they were possessed of the property within the time required by law and that the occupation thereof by defendant is deemed to have been in subordination of plaintiffs' title, unless it be shown that defendant's possession was adverse for the statutory period. (Code Civ. Proc., 321.) Thus the burden was cast upon defendant to affirmatively establish its alleged adverse possession. (Westphal v. Arnoux, 51 Cal.App. 532 [197 P. 395].)" (See also Cory v. Hotchkiss, 31 Cal.App. 443, 444 [160 P. 841].) The quitclaim deed which the appellant secured from McKenna was worthless. The court in the first action decreed that McKenna had no interest in the property, and therefore she had no interest which she could transfer to the appellant herein. Appellant did pay some of the taxes on the property but she did not pay all of them. [7] In West v. Evans, 29 Cal.2d 414, at page 417 [175 P.2d 219], it is set forth: "To establish title by adverse possession, the claimant must establish five elements in connection with his occupancy of the property. (Unger v. Mooney, 63 Cal. 586 [49 Am.Rep. 100] ...; see Code Civ. Proc., 321 et seq.) (1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. (Citing cases.) (2) Possession must be hostile to the owner's title. (Citing *229 cases.) (3) The holder must claim the property as his own, either under color of title, or claim of right. (Citing cases.) (4) Possession must be continuous and uninterrupted for five years. (Citing cases.) (5) The possessor must pay all of the taxes levied and assessed upon the property during the period. (Citing cases.) Unless each one of these elements is established by the evidence, the plaintiff has not acquired title by adverse possession." "Actual possession, said Chief Justice Field, means 'a subjection to the will and dominion of the claimant' (Coryell v. Cain, 16 Cal. 567, 573). It is established not alone by the assertion of title, but it must be coupled with acts of ownership which proclaim to the world, and bring notice to the owner, that a right is claimed in the land over which the claimant is seeking to exercise dominion. (Hart v. Cox, 171 Cal. 364, 367 [153 P. 391]. ...)" In the present case the evidence disclosed that appellant failed to establish the requirements numbered (1), (2), (4) and (5) above mentioned. The judgment is affirmed. White, P. J., and Drapeau, J., [fn. *] concurred. NOTES [fn. *] *. Assigned by Chairman of Judicial Council.

120 Cal.App.2d 242 (1953) HOWARD PARK COMPANY (a Corporation) et al., Appellants, v. CITY OF LOS ANGELES et al., Respondents. Civ. No. 19683. California Court of Appeals. Second Dist., Div. One. Sept. 15, 1953. Holbrook, Tarr & O'Neill for Appellants. Ray L. Chesebro, City Attorney, Bourke Jones, Assistant City Attorney, Alfred E. Rogers, Deputy City Attorney, and Roscoe R. Hess for Respondents. WHITE, P. J. This is an appeal by plaintiffs from an order of the Superior Court of Los Angeles County denying the issuance of an alternative writ of mandate on a petition that is entitled "Petition for Writ of Mandate and/or Injunction." Named as defendants in this proceeding are the city of Los Angeles, the mayor of said city, members of the city council, board of public works and the Meriwether Investment Company, a corporation. Plaintiffs are the owners of a tract of land in the city of Los Angeles, zoned and being used for oil production purposes, a portion of the tract lying within the boundaries of the sanitary sewer district created pursuant to section 5000 et seq. of the Streets and Highways Code (formerly the Improvement Act of 1911), and known as the Athens Boulevard and Vermont Avenue Sewer District. Meriwether Investment Company is allegedly the assignee of the contractor who constructed the sanitary sewer system in the aforesaid district, and as such assignee, is alleged to have bought or undertaken to buy the bonds to be issued for the financing of said sewer system. In their petition for a writ of mandate and/or injunction filed in the superior court, plaintiffs prayed that the city and all its named officials "recall, withdraw and expunge" all of the proceedings taken as to assessments numbered 514, 724, 725, 850, and 851 of the Athens Boulevard and Vermont Avenue Sewer District, and to make a new assessment in accordance with certain rules prescribed by plaintiffs in their petition for the writ, and which rules, according to plaintiffs are "in accordance with law." Plaintiffs also prayed for the issuance of a "Writ of Injunction" to restrain defendant Meriwether Company from "doing any acts whatsoever to impose any liens ... on property of plaintiffs." The petition now before us sought a review by the superior court of the confirmation by the city council of the assessments levied against the properties of plaintiffs. *244 The basic contentions as advanced by plaintiffs are as follows: First, that the board of public works failed to comply with section 5343 of the Streets and Highways Code, in that said body did not assess against the lands of petitioners the cost of such improvement "in proportion to the estimated benefits to be received by each of the said several lots or parcels of land." (Sts. & Hy. Code, 5343), but proceeded in accordance with the provisions of the cited code, sections 5315 to 5327, requiring that street assessments be spread "in proportion to the frontage." Second, that the board of public works unlawfully delegated its powers and duties to employees of said board, to-wit, employees in the bureau of assessments of the city of Los Angeles, who prepared an assessment list and diagram which was submitted to the board, and which list and diagram and the assessments thereunder were allegedly computed "illegally and erroneously and in violation of law by application in proportion to the frontage owned by each property owner in said district of the cost at a rate per front foot ... of the work." That in accepting from its employees the assessment list and diagram and not making any independent investigation of its own, but approving the list and diagram as submitted, the Board of Public Works illegally delegated its powers. At the conclusion of the hearing before the superior court, the following order was entered: "The court having read the petition herein, the reporter's transcript of the proceeding before the city council of the city of Los Angeles in the matter of the appeal of the Howard Park Company, filed herein and the several points and authorities filed by the plaintiffs and the defendants, the court now denies plaintiff's application for an alternative writ of mandate." From such order plaintiffs prosecute this appeal. When a stay pending determination of the foregoing appeal was denied, plaintiffs applied to this court for a writ of mandate against the above- named defendants and also joined as a respondent therein, the treasurer of the city of Los Angeles. We issued an alternative writ of mandate, briefs were filed, the cause was orally argued and, on August 5, 1953, this court rendered its decision wherein the alternative writ issued by us was discharged and a peremptory writ denied (Howard Park Co. v. City of Los Angeles, 119 Cal.App.2d 515 [259 P.2d 977]). [1] The foregoing basic issues presented by appellants herein were fully considered by us in the case just cited *245 and were determined adversely to them. Upon the authority of and for the reasons stated in said decision we are satisfied that the board of public works did not unlawfully delegate its powers in spreading the assessments in question, and that the procedure adopted in the instant case does no violence to section 5343 of the Streets and Highways Code. [2] An examination of the transcript of proceedings had before the city council, and which document was before the superior court, reveals that appellants were given every opportunity to be heard before the legislative body, and that they availed themselves thereof, presenting not only oral and documentary evidence, but also presented judicial decisions affecting the legal aspect of the assessments at considerable length. There appears no evidence of fraud, gross injustice or demonstrable mistake in the conclusion arrived at in the hearings before or the conclusions arrived at by the legislative body on the question of the extent of benefits to appellants' properties. The question, resting as it does, peculiarly in the determination of the assessing authority, the conclusion arrived at by the latter will not, under the circumstances here present, be interfered with by the courts. [3] There is one further matter not referred to in appellants' briefs but which was included in their petition to the superior court and presented at the oral argument before us. That is the claim that at the hearing before the city council, one of the members thereof "prejudged the matter." In that regard appellants alleged in their petition to the superior court that during the hearing, when an adjournment was taken to the following day, the councilman in whose councilmanic district the sewer district in question is located, addressed his colleagues on the council, stating, "That in his mind he was satisfied that the assessments were proper and should be confirmed." Appellants' petition then avers that immediately following the aforesaid statement by the councilman, appellants' counsel requested the president of defendant city council to rule that, by virtue of "prejudgment" of said matter, defendant Councilman Gibson was not qualified to further sit as a member of a quasi-judicial tribunal hearing such appeals; that nevertheless said defendant Gibson was permitted at all times thereafter to participate in such hearing and thereafter to vote on the confirmation of said assessments. *246 We fail to see wherein appellants were prejudiced by reason of the fact that Councilman Gibson was permitted to vote on the confirmation of the assessments. Of the 15 members constituting the city council, 13 were present at the hearing in question. Eight votes, or a majority of the council, were necessary to confirm the assessments. On the roll call, 13 members voted to confirm the assessments. Had Councilman Gibson refrained from voting or been denied the right to vote there would still remain 12 affirmative votes, or four more than necessary for confirmation of the assessments. Had the vote of Councilman Gibson been necessary in order to confirm the assessments, a different question might be presented, but such was not the case in the matter now engaging our attention. For the foregoing reasons, the order from which this appeal was taken is affirmed. Doran, J., and Drapeau, J., concurred.

472 F.Supp. 396 (1979) Allen CARLSON, Plaintiff, v. Ransford B. PALMER, Defendant. Civ. A. No. 78-218. United States District Court, D. Delaware. June 15, 1979. *397 Richard L. Sutton, and Walter C. Tuthill, of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for plaintiff; E. Michael Keating, of Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., of counsel. Richard W. Pell, of Tybout & Redfearn, Wilmington, Del., for defendant. MEMORANDUM STEEL, Senior District Judge: Presently before the Court is the defendant's motion to have the Clerk's disallowance of costs reviewed pursuant to Rule 54 Fed.R.Civ.P. (Doc. No. 39).[1] On May 4, 1979, the Clerk of the District Court for the District of Delaware denied defendant's request to tax as costs the fees of five expert witnesses on the ground that expert witness fees are not taxable in excess of the amounts allowable for ordinary witnesses pursuant to 28 U.S.C. § 1821 (1976). (Doc. No. 38).[2] Defendant prevailed in a jury trial which ran from March 26 to March 28, 1979. As the prevailing party, defendant is entitled to certain costs pursuant to Rule 54(d) Fed. R.Civ.P. and 28 U.S.C. §§ 1821, 1925 (1976). Defendant seeks to charge as costs against the plaintiff the fees of two medical expert witnesses, two ship captains, and one economist, who testified at trial. Specifically, defendant requests $400 for the court appearance of Dr. Haynes B. Cates; $400 for the appearance of Dr. Allen Fink; $242.36 for the appearance of Captain Elmer L. Thomas; $150 for the appearance of Captain Frank Badur; and $886.08 for the appearance of Robert F. Minnehan, Ph.D. (Doc. No. 36). This action, which involved a claim of maritime tort, invoked both the admiralty and diversity jurisdiction of this court. (Doc. No. 1). In non-maritime actions brought solely on the basis of diversity jurisdiction, this Court, in its discretion, has elected to follow the state rule embodied in 10 Del.C. § 8906 (1975) which provides that expert witness fees are taxable as costs.[3]*398 See Townsend v. Wise, 450 F.Supp. 1162 (D.Del.1979); Chemical Bank v. Kimmel, 68 F.R.D. 679 (D.Del.1975); Henlopen Hotel Corp. v. Aetna Ins. Co., 38 F.R.D. 155 (D.Del.1965). Title 28 U.S.C. § 1925 (1976) governs the allocation of costs in maritime and admiralty proceedings. Enacted in 1948, 28 U.S.C. § 1925 provides: Except as otherwise provided by Act of Congress, the allowance and taxation of costs in admiralty and maritime cases shall be prescribed by rules promulgated by the Supreme Court. Thus, in admiralty and maritime proceedings, costs are allowed according to rules promulgated by the Supreme Court if Congress has not acted. See Firemen's Fund Ins. Co. v. Standard Oil of Cal., 339 F.2d 148 (9th Cir. 1964). Although the Supreme Court has not exercised its power to promulgate rules concerning the allocation of costs in admiralty cases, Congress, however, has enacted a comprehensive statute that governs the payment of witness fees for "a witness in attendance at any court of the United States." 18 U.S.C. § 1821 (emphasis added). Accordingly, the provisions of Section 1821, which have been construed to prevent taxation of expert witness fees as costs, See Gerber v. Stoltenberg, 394 F.2d 179 (5th Cir. 1968); Kaiser Industries Corp. v. McLouth Steel Corp., 50 F.R.D. 5, 13 (D.C.Mich.1970); 6 Moore's Federal Practice, § 54.77[5-3] at p. 1734, apply to admiralty cases by virtue of the "except as otherwise provided by Act of Congress" clause in Section 1925. As was stated in Katz v. Cie Generale Transatlantique, 190 F.Supp. 435, 437 (E.D.Va.1960), "[s]ection 1821 is made expressly applicable to witnesses attending in any court of the United States, and is not affected by 28 U.S.C.A. § 1925 as the costs are `otherwise provided by Act of Congress.'" In short, Section 1821 controls the assessment of expert witness fees in both civil and admiralty cases and is not subject to alteration by the Supreme Court even if one had been attempted.[4] The only question presently facing the Court is whether state or federal law governing the payment of expert witness fees applies to a maritime tort action based on diversity and admiralty jurisdiction. It is well established that maritime torts, whether instituted pursuant to diversity or admiralty jurisdiction, are measured by the standards of federal admiralty law. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1958); Branch v. Schumann, 445 F.2d 175, 178 (5th Cir. 1971); Capozziello v. Brasileiro, 443 F.2d 1155 (2d Cir. 1971). It is also fundamental that admiralty law is to be uniform throughout the United States. Accordingly, a federal court sitting in admiralty may apply state law that "does not contravene any acts of Congress, nor work any prejudice to the characteristic features of the maritime law, nor interfere with its proper harmony and uniformity in its international and interstate relations." Just v. Chambers, 312 U.S. 383, 389, 61 S.Ct. 687, 692, 85 L.Ed. 903 (1940); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 410, 73 S.Ct. 1129, 97 L.Ed. 1398 (1953); St. Hilaire Moye v. Henderson, 496 F.2d 973, 980-81 (8th Cir.), cert. denied, 419 U.S. 884, 95 S.Ct. 151, 42 L.Ed.2d 125 (1974). Application of the Delaware statute governing expert witness fees in the instant case would directly contravene the federal statute governing taxation of witness fees as costs in maritime tort cases. By enacting 28 U.S.C. § 1925, Congress indicated its intention to apply the provisions of Section 1821, among other federal statutes, to admiralty and maritime cases. Therefore, the *399 provisions of Section 1821 constitute an element of federal maritime law and establish specific standards governing the taxation as costs of expert witness fees. Because the Delaware statute directly contravenes Section 1821, as construed to prevent expert witness fees from being taxed as costs, the provisions of the Delaware statute may not be applied in an admiralty court.[5] Accordingly, defendant's motion to recover the costs of expert witness fees will be denied. NOTES [1] Rule 54(d) Fed.R.Civ.P. provides as follows: Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; . . . Costs may be taxed by the clerk on one day's notice. On motion served within five days thereafter, the action of the clerk may be reviewed by the court. [2] 28 U.S.C. § 1821 provides as follows: (a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section. (2) As used in this section, the term `court of the United States' includes, in addition to the courts listed in section 451 of this title, any court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States. (b) A witness shall be paid an attendance fee of $30 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance. (c)(1) A witness who travels by common carrier shall be paid for the actual expenses of travel on the basis of the means of transportation reasonably utilized and the distance necessarily traveled to and from such witness's residence by the shortest practical route in going to and returning from the place of attendance. Such a witness shall utilize a common carrier at the most economical rate reasonably available. A receipt or other evidence of actual cost shall be furnished. (2) A travel allowance equal to the mileage allowance which the Administrator of General Services has prescribed, pursuant to section 5704 of title 5, for official travel of employees of the Federal Government shall be paid to each witness who travels by privately owned vehicle. Computation of mileage under this paragraph shall be made on the basis of a uniformed table of distances adopted by the Administrator of General Services. [3] 10 Del.C. § 8906 provides as follows: The fees for witnesses testifying as experts or in the capacity of professional men in cases in the Superior Court, and the Court of Chancery, within this State, shall be fixed by the court in its discretion, and such fees so fixed shall be taxed as part of the costs in each case and shall be collected and paid as other witness fees are now collected and paid. [4] See also Isthmian Lines, Inc. v. Moran, 45 F.R.D. 531 (S.D.N.Y.1968) (while failing to cite any statutory grounds for its decision, the district court refused to tax as costs the fees of expert witnesses in an admiralty case); The Wahkeena, 51 F.2d 106 (W.D.Wash.1931) (the court refused to follow state law which allowed the taxation of expert witness fees as costs, reasoning that "[i]n admiralty causes, the Conformity Act does not apply."). [5] Cf. Kalmbach, Inc. v. Ins. Co. of State of Pa., Inc., 422 F.Supp. 44, reversed on other grounds, 529 F.2d 552 (9th Cir. 1976) (in a case brought pursuant to both admiralty and diversity jurisdiction, the court refused to apply the state statute governing the award of attorneys' fees, reasoning that the fact that diversity jurisdiction was invoked did not alter the federal rule prohibiting the recovery of attorneys' fees in admiralty cases); American Union Transport Co. v. Aquadilla Terminal Inc., 302 F.2d 394, 396 (1st Cir. 1962) (holding that Puerto Rican law awarding counsel fees to the prevailing party was inapplicable in admiralty suits, reasoning that "in admiralty there is no specific authority in the statute, Title 28 U.S.C. §§ 1923, 1925 . . . for awarding counsel fees.").

              MEMORANDUM OPINION   No. 04-11-00220-CV   EX PARTE Jesse RAMIREZ   Original Mandamus Proceeding[1]   PER CURIAM   Sitting:          Sandee Bryan Marion, Justice                      Rebecca Simmons, Justice                      Marialyn Barnard, Justice                 Delivered and Filed:  April 13, 2011   PETITION FOR WRIT OF HABEAS CORPUS DENIED    On March 22, 2011, relator filed a petition for writ of habeas corpus.  The court has considered relator’s petition and is of the opinion that relator is not entitled to the relief sought.  Accordingly, the petition for writ of habeas corpus is DENIED.  See Tex. R. App. P. 52.8(a).  PER CURIAM             [1] This proceeding arises out of Cause No. 98-CI-12694, styled In the Interest of J.R. and G.C.R., in the 73rd Judicial District Court, Bexar County, Texas, the Honorable Renée F. McElhaney presiding. 

172 F.3d 866 Torresv.Johnson NO. 97-20635 United States Court of Appeals,Fifth Circuit. February 01, 1999 Appeal From: S.D.Tex. , No.H-88-CV-1960 1 Affirmed.

507 F.2d 865 FOOD INDUSTRIES RESEARCH AND ENGINEERING, INC., a WashingtonCorporation, Appellant,v.STATE OF ALASKA et al., Defendants, Greater AnchorageDevelopment Corp. et al., Appellees. No. 73-3023. United States Court of Appeals, Ninth Circuit. Nov. 19, 1974. Walter H. Garretson (argued), Anchorage, Alaska, for appellant. Walter W. Cardwell, III (argued), Richard F. Lytle (argued), Houston & Lytle, Anchorage, Alaska, for appellees. Before BROWNING, ELY and GOODWIN, Circuit Judges. OPINION ALFRED T. GOODWIN, Circuit Judge: 1 Plaintiff engineering firm appeals from a summary judgment denying recovery of the price of engineering services and quantum meruit relief. The district court held that the contract under which the services were performed was illegal from its inception because the engineers had not qualified to perform professional services in Alaska prior to entering into the contract.1 2 The equities favor the engineers. Their plans were utilized in construction of the building. The illegality of the contract was a matter of inadvertence and bad timing. One of the engineers' officers applied for the requisite certification less than a month after the contract was made. The illegality caused no loss to the appellees. The engineers were at all times qualified to perform engineering services in the state of Washington, and obtained qualification in Alaska before the two final phases of the contract had been performed. Finally, the appellees' agent appears to have been aware of the possibility that the engineers had not qualified to do business in Alaska. Less than three months after the contract was signed the agent wrote to the appellant's head of engineering: 3 'The other thing I wanted to ask, Dee, are you licensed in Alaska? If not I believe state law requires an architect licensed in Alaska to stamp the plans. But this can be easily taken care of.' 4 Though the equities favor the appellant, a prior decision of this court does not. In Hedla v. McCool, 476 F.2d 1223 (9th Cir. 1973), we held that a firm of Seattle architects who were not qualified in Alaska could not recover on a contract to design a building to be constructed in Alaska. We relied on the same statute that is at issue here. We also refused quantum meruit relief, on the basis of an Erie-educated2 guess that Alaska would follow the common-law rule that a party to an illegal contract cannot recover in quasi contract for the benefit conferred. 476 F.2d at 1227. 5 The substantive holding in Hedla was, at the time it was written, an educated guess on a question of state law. Hedla is useful as precedent only to the extent that it reflects the current state of Alaska law. 6 Two recent Alaska Supreme Court decisions suggest that the proper course now is to remand the case to the district court for further consideration in light of new Alaska precedent. In Gates v. Rivers Construction Co., 515 P.2d 1020 (Alaska 1973), the Supreme Court of Alaska enforced an employment contract which violated the immigration laws of the United States. Recognizing the general rule that an illegal contract is unenforceable, the court noted that there were many exceptions to this rule. It placed particular significance on the fact that the statute making the contract illegal contained no specific declaration that the labor or service contracts of aliens seeking to enter the United States for the purpose of performing labor should be void. 7 '* * * The statute only specifies that aliens who enter this country for such purpose, without having received the necessary certification, 'shall be ineligible to receive visas and shall be excluded from admission into the United States." 515 P.2d at 1022. 8 The court contrasted the current statutory language with the language of the predecessor statute, which expressly made such contracts void and of no effect, and inferred that Congress, by omitting the 'void' language, intended to allow such contracts to be enforced. 515 P.2d at 1022-1023. 9 The engineers here compare the Alaska engineer-registration statute, which contains no express 'void' clause, with the Alaska contractor-registration statute, which does provide that no action may be brought on a contract entered into prior to registration.3 10 The omission of specific 'void' or 'unenforceable' language appears to be meaningful to the Supreme Court of Alaska. In denying relief in reliance upon Hedla v. McCool, supra, the district court did not have the benefit of the Alaska court's recently announced view of the significance of such an omission. 11 A second recent Alaska case, Sumner Development Corporation v. Shivers, 517 P.2d 757 (Alaska 1974), held that the contractor-registration statute, AS 08.-18.151, precludes affirmative recovery on a contract by an unregistered contractor but permits use of the barred claim as a setoff. In the context of affirmative recovery, Sumner reiterated the view expressed in Gates v. Rivers Construction Co., supra, that action on an 'illegal' contract is not necessarily barred unless the statute contains an explicit unenforceability provision. 517 P.2d at 763. 12 Because the statute at issue here does not contain explicit 'unenforceability' or 'void' language, the case should be remanded for reconsideration by the district court in light of Sumner and Gates. 13 Neither party is entitled to costs in this court. 14 Vacated and remanded. ELY, Circuit Judge (concurring): 15 In the light of certain writings of the Alaska Supreme Court, issued after the District Court's entry of judgment, I cannot conscientiously dissent from the majority's wish that the district judge be allowed to reconsider the dispute in the light of the subsequent state court expressions. It warrants emphasis, however, that it is not intended by the principal opinion to in any manner indicate this court's view as to the decision that should be properly made by the District Court in its reconsideration. Speaking only for myself, I can perceive nothing in the utterances of the Supreme Court of Alaska, particularly in Gates v. Rivers Construction Co. and Sumner Development Corp. v. Shivers, cited in the principal opinion, that should induce the District Court to alter its original judgment and thus depart from our court's holding in Hedla v. McCool, 476 F.2d 1223 (9th Cir. 1973). 1 Former AS 08.48.190, which was in effect at the time the contract was entered into, provided: 'A registered professional engineer or architect who is not a resident of the state or does not have an established place of business in the state but who possesses the qualifications required by this chapter shall qualify under this chapter before he may solicit business for, enter into contracts for, or perform professional services requiring registration or a permit.' AS 08.48.190 was repealed by 1, ch. 179, SLA 1972 (effective July 1, 1972), and replaced by a similar provision, AS 08.48.281. 2 Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) 3 AS 08.18.151 'No person acting in the capacity of a contractor may bring an action in a court of this state for the collection of compensation for the performance of work or for breach of a contract for which registration is required under this chapter without alleging and proving that he was a registered contractor at the time he contracted for the performance of the work.'

420 F.3d 1185 Peter N. GEORGACARAKOS, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 04-1363. United States Court of Appeals, Tenth Circuit. August 29, 2005. Submitted on the Brief:* Peter N. Georgacarakos, pro se. John W. Suthers, United States Attorney, Jerry N. Jones, Assistant United States Attorney and Elizabeth A. Weishaupl, Assistant United States Attorney, Denver, Colorado, for Defendant-Appellee. Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges. HARTZ, Circuit Judge. 1 Plaintiff Peter N. Georgacarakos, a federal prisoner, sued the United States for the loss of 23 books and a manuscript allegedly caused by the Bureau of Prisons and the United States Post Office. In May 2002 personnel at the Bureau's facility in Florence, Colorado, removed a box containing the books and manuscript from storage and mailed it to Plaintiff's family, apparently believing that they were acting at Plaintiff's request. The box came apart at the Florence Post Office, and all but seven of the books were lost. 2 Plaintiff claims that the Bureau caused his loss by mailing his box without authorization, failing to secure it properly, and failing to use certified mail so that it could be tracked, and that the Bureau compounded its errors by refusing to investigate the loss after it had occurred. He claims that the Post Office caused his loss by failing to secure his books and the manuscript after the box came apart, and compounded its error by failing to document the lost items properly or investigate the loss. He seeks damages. 3 The United States claims sovereign immunity. The district court dismissed for want of subject-matter jurisdiction on that ground. We review the district court's grant of a motion to dismiss de novo, assuming the truth of all facts that Plaintiff alleges. See Woodmen of World Life Ins. Soc'y v. Manganaro, 342 F.3d 1213, 1216 (10th Cir.2003); Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.1971). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. 4 The Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), generally waives the United States' sovereign immunity with respect to claims for money damages arising out of loss of property resulting from federal employee misconduct.1 But the Bureau and Post Office rely on two exceptions to the Act, 28 U.S.C. § 2680(b), (c), which state: 5 The provisions of this chapter and section 1346(b) of this title [waiving sovereign immunity] shall not apply to — 6 . . . 7 (b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter. 8 (c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer. . . . 9 Subsection (b) is sufficient to protect the United States, so we need not consider subsection (c). 10 Plaintiff's claims arise out of the loss of the books and manuscript that the Bureau mailed. Once mailed, the books and manuscript became "postal matter" within the meaning of § 2680(b). See Marine Ins. Co. v. United States, 378 F.2d 812 (2d Cir.1967) (package of emeralds temporarily diverted from postal delivery by Bureau of Customs was "postal matter"). And had these items not been lost, Plaintiff would have suffered no loss and would have had no claim. Thus, Plaintiff's claims arise out of the loss of postal matter and are consequently within the § 2680(b) exception. 11 It is irrelevant that the loss may also arise out of conduct for which there would otherwise be liability under the FTCA. For example, Plaintiff contends that the prison mailed his books without authorization. We can assume that he would have had a valid claim for expenses incurred in recovering books mailed to an unauthorized address. Moreover, we may assume that without the unauthorized mailing this claim would not exist. It is also true, however, that the claim that Plaintiff actually brought would not exist had the books not been lost in transmission. We note that the only damages he claims spring from the eventual loss of the books. Thus, Plaintiff's claim is one that was generated in part by an event covered by the exemption from liability provided by § 2680(b)— the loss of postal matter—and in part by an event not covered—unauthorized mailing. If § 2680(b) exempted liability only for a "claim arising solely out of the loss of postal matter," Plaintiff's claim would survive. But the statutory provision is not limited by the word solely or the like. 12 In insurance cases an analogous question arises when a policy excludes losses "arising out of" some event and it must be decided whether the policy covers a loss caused in part by that event and in part by others. In that context the majority rule is that policy language excluding losses arising out of some event excludes losses caused by that event even when they are also caused by other events. In All American Insurance Co. v. Burns, 971 F.2d 438, 440 (10th Cir.1992), for example, a church bus driver molested two of his minor passengers. They and their fathers sued the church, charging it with negligently hiring and failing to discharge the driver. Id. The insurance policy at issue contained an exclusion for "personal injury arising out of the willful violation of a penal statute." Id. at 440 (internal quotation marks and emphasis omitted). We observed that the plaintiffs' loss was caused by the church's negligence, but was also caused by the molestation: without it they would have had no claim. Id. at 442-43. Accordingly, the policy exclusion applied: 13 We cannot agree with the [plaintiffs'] argument that the cases can be viewed as involving only the negligence allegations and the negligent entrustment theory. It is, instead, an essential element of the state court causes of action that [the driver] molested the girls and caused them injuries of mind and body. . . . The petitions here would not have stated the complete causes of action without alleging the molestation and resulting injuries. . . . 14 Thus the penal violation exclusion logically and necessarily applies. 15 Id. Similarly, in American Commerce Insurance Co. v. Porto, 811 A.2d 1185 (R.I.2002), the court ruled that there was no coverage with respect to a negligent-supervision claim brought when a boy scout was sexually molested by a troop leader. The insurer prevailed because of a policy exclusion for a claim that "arises out of . . . the actual, alleged or threatened sexual molestation of a person." Id. at 1189 (internal quotation marks omitted). See also Stouffer & Knight v. Cont'l Cas. Co., 96 Wash.App. 741, 982 P.2d 105, 108 (1999) (exclusion for claims arising out of dishonest acts protected insurer against covering claim for negligent supervision brought by law-firm client whose funds were embezzled by secretary); Lee R. Russ & Thomas F. Segalla, 7 Couch on Insurance § 101:54 (3d ed. 1997) ("The phrase `arising out of' is frequently given a broader meaning than proximate cause. The phrase is considered to mean `flowing from' or `having its origin in," indicating that there only need be `a' causal connection, rather than a proximate causal connection."). Cf. Saenz v. Ins. Co. of Pa., 66 S.W.3d 444, 448 (Tex.App.2001) ("Under the Workers' Compensation Act, a claimant is required to prove that the injury for which she seeks compensation arose out of her employment. . . . [A]n injury arises out of employment if the employment is a producing cause—which means even if there are other causes for the injury, the employment need only be `a' cause."); Daniello v. Machise Express Co., 119 N.J.Super. 20, 289 A.2d 558, 560 (1972) ("An accident `arises out of employment' when in some manner it is due to the risk reasonably incidental to the employment, if the employment is a contributing cause of the accident resulting in the injury, and if the employment is a necessary factor leading to the accident, even though the employment is not the sole or proximate cause of the injury."). We see no reason why arising out of should have a different meaning in the FTCA. 16 Likewise, we are not persuaded by Plaintiff's contention that his claim falls outside the statutory exception because the Post Office's errors took place after transmission had ceased. The postal-matter exception is not limited to claims based on negligent transmission. It covers "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of . . . postal matter." § 2680(b) (emphasis added). The exception applies here because the heart of Plaintiff's claim is still the damage caused by loss of the postal matter. 17 Cases in which appellate courts have held § 2680(b) inapplicable are quite different from the one before us. In Birnbaum v. United States, 588 F.2d 319, 321 (2d Cir.1978), the issue was whether § 2680(b) protected the United States from invasion-of-privacy suits based on its opening letters on their way to the Soviet Union. The Second Circuit held § 2680(b) inapplicable because negligent transmission did not encompass intentional opening of the letters, "[n]or were the letters lost or miscarried." Id. at 328; see Cruikshank v. United States, 431 F.Supp. 1355, 1359-60 (D.Haw.1977) (same); Avery v. United States, 434 F.Supp. 937, 944-45 (D.Conn.1977) (same). 18 In Raila v. United States, 355 F.3d 118 (2d Cir.2004), the Second Circuit again held § 2680(b) inapplicable, this time to the Post Office's negligently placing a package just underneath the plaintiff's front step, causing her to slip and fall. Whether the claim arose from the loss of postal matter was not at issue; the only question was whether it arose from negligent transmission. Analogizing to a claim arising from a Post Office employee's negligently driving a delivery truck, which is not barred by § 2680(b), see Kosak v. United States, 465 U.S. 848, 855, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984), the Second Circuit held that negligent placement of postal matter at the end of its journey is not negligent transmission. Contra Dolan v. United States, 377 F.3d 285, 287-88 (3d Cir.2004). 19 Other cases are even farther afield. See United States v. Cushman & Wakefield, Inc., 275 F.Supp.2d 763, 778 (N.D.Tex.2002) (negligence in giving postage refund checks to manager who converted them to his own use); Barbieri v. Hartsdale Post Office, 856 F.Supp. 817, 818 (S.D.N.Y.1994) (incorrect postmark resulting in tax penalty). 20 Finally, we reject the contention that the postal-matter exception of § 2680(b) applies to the Post Office only. Section 2680's language does not suggest any such limitation. By its terms it applies to any claim arising out of the loss of postal matter. The Fifth Circuit has held that the exception extends to an FTCA claim based on federal prison officials' failure to deliver a prisoner's litigation-related mail. See Ruiz v. United States, 160 F.3d 273 (5th Cir.1998). We note that Plaintiff is not advancing a civil-rights claim against state officials under 42 U.S.C. § 1983, which, of course, is not governed by the Federal Tort Claims Act. Cf. Simkins v. Bruce, 406 F.3d 1239 (10th Cir.2005) (permitting § 1983 claim for failure to deliver litigation-related mail amounting to denial of constitutional right of access to the courts). 21 We hold that each of Plaintiff's claims is within the postal-matter exception to the Federal Tort Claims Act. Each claim is thus barred by the United States' sovereign immunity. 22 We AFFIRM the district court's dismissal for lack of subject-matter jurisdiction. Notes: * After examining the brief and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appealSee Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 1 Section 1346(b) states in pertinent part: [T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages. . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

J. S69030/14 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ERIBERTO GONZALEZ, : No. 203 EDA 2014 : Appellant : Appeal from the Judgment of Sentence, November 19, 2013 in the Court of Common Pleas of Lehigh County Criminal Division at No. CP-39-CR-0005179-2012 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 12, 2014 Eriberto Gonzalez appeals from the judgment of sentence of November 19, 2013, following a plea of nolo contendere to one count of possession with intent to deliver (“PWID”) (heroin). We affirm. On September 9, 2012, at approximately 3:15 p.m., Officer David Howells was on routine patrol when he observed a black Mercedes SUV. (Notes of testimony, 11/19/13 at 11.) Officer Howells ran the license plate number and discovered that the vehicle’s registration was suspended for insurance cancellation. (Id.) Officer Howells executed a traffic stop and approached the vehicle. (Id.) Officer Howells observed appellant in the driver’s seat. (Id.) When he asked appellant for identification, appellant produced a driver’s license with the name “Angel Cintron.” (Id. at 12.) It J. S69030/14 was clear to the officer that appellant was not the same man pictured on the driver’s license. (Id.) At that time, Officer Howells asked appellant to step out of the vehicle. (Id.) Appellant consented to a search of his person, at which time Officer Howells recovered a packet of synthetic marijuana in appellant’s pocket. (Id.) During a subsequent inventory search of appellant’s vehicle, Officer Howells found a black plastic bag filled with rice in the center console. (Id.) Inside the bag were nine bundles of heroin containing a total of 69 stamp bags of heroin. (Id.) When Officer Howells placed appellant under arrest, he asked whether he used any drugs such as cocaine or heroin. (Id.) Appellant denied using any drugs except for synthetic marijuana. (Id. at 13.) On November 19, 2013, appellant entered a plea of nolo contendere to count 1, PWID (heroin). In exchange for appellant’s plea, the Commonwealth agreed to withdraw the remaining charges including two counts of possession, possession of drug paraphernalia, and false identification. In addition, the Commonwealth agreed to waive the 3-year mandatory minimum sentence and cap appellant’s minimum sentence at the bottom of the standard range of the sentencing guidelines, or 24 months. (Id. at 3.) Appellant was also RRRI eligible. (Id.)1 There was no 1 Recidivism Risk Reduction Incentive (“RRRI”) program, 61 Pa.C.S.A. § 4501 et seq. -2- J. S69030/14 agreement as to the maximum sentence appellant could receive. (Id. at 6- 7.) The trial court accepted the plea and imposed a sentence of 24 months to 7 years’ imprisonment. (Id. at 21.) Under RRRI, appellant would be eligible for release on parole after 18 months. (Id. at 22-23.) On December 2, 2013, appellant filed a post-sentence motion for modification of sentence, requesting a sentence of 2 to 5 years’ imprisonment or, in the alternative, to withdraw his plea.2 Appellant’s motion was denied on December 18, 2013. A timely notice of appeal was filed on January 14, 2014. On January 15, 2014, appellant was ordered to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Appellant filed his Rule 1925(b) statement on February 14, 2014, and the trial court has filed a Rule 1925(a) opinion.3 2 The 10th day following sentencing was Friday, November 29, 2013. As this was the day after Thanksgiving, presumably the courthouse was closed. No one suggests that appellant’s post-sentence motion was untimely and failed to toll the appeal period. Therefore, we conclude that appellant’s post-sentence motion filed the following Monday, December 2, 2013, was timely. See 1 Pa.C.S.A. § 1908 (excluding weekends and holidays from the computation of time). 3 Appellant’s Rule 1925(b) statement was due on February 5, 2014. Therefore, it was filed late. However, the trial court addressed the issues raised in its Rule 1925(a) opinion and it is unnecessary to remand. See Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa.Super. 2012) (“When counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues we need not remand and may address the merits of the issues presented.”), citing Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009) (en banc). -3- J. S69030/14 Appellant has presented the following issues for this court’s review: A. Did the lower court err by denying [appellant]’s request to withdraw his nolo plea, post-sentence, as [appellant]’s plea was not entered knowingly or voluntarily or that [appellant] was innocent of the charge? B. Whether the length of the maximum sentence imposed by the court is manifestly excessive given the totality of the circumstances, [appellant]’s rehabilitative needs, and the disproporti[o]nate reliance upon the need to protect the community? Appellant’s brief at 7 (capitalization omitted) (emphasis added). “Preliminarily, we note that in terms of its effect upon a case, a plea of nolo contendere is treated the same as a guilty plea.” Commonwealth v. Leidig, 850 A.2d 743, 745 (Pa.Super. 2004), citing Commonwealth v. Miller, 748 A.2d 733, 735 (Pa.Super. 2000). Our law is clear that, to be valid, a guilty plea must be knowingly, voluntarily and intelligently entered. Commonwealth v. Shekerko, 432 Pa.Super. 610, 639 A.2d 810, 813 (1994). There is no absolute right to withdraw a guilty plea, and the decision as to whether to allow a defendant to do so is a matter within the sound discretion of the trial court. Commonwealth v. Muhammad, 794 A.2d 378, 382 (Pa.Super.2002). To withdraw a plea after sentencing, a defendant must make a showing of prejudice amounting to “manifest injustice.” Id., 794 A.2d at 383. “A plea rises to the level of manifest injustice when it was entered into involuntarily, unknowingly, or unintelligently.” Commonwealth v. Ingold, 823 A.2d 917, 920 (Pa.Super.2003). A defendant’s disappointment in the sentence imposed does not constitute “manifest injustice.” Muhammad, 794 A.2d at 383. -4- J. S69030/14 A court accepting a defendant’s guilty plea is required to conduct an on-the-record inquiry during the plea colloquy. Ingold, 823 A.2d at 920. The colloquy must inquire into the following areas: (1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere? (2) Is there a factual basis for the plea? (3) Does the defendant understand that he or she has the right to trial by jury? (4) Does the defendant understand that he or she is presumed innocent until found guilty? (5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged? (6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement? Id. at 920-21. Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super.1999). He bears the burden of proving otherwise. Id. Commonwealth v. Pollard, 832 A.2d 517, 522-523 (Pa.Super. 2003). Instantly, the trial court conducted a thorough, probing on-the-record plea colloquy with appellant. (Notes of testimony, 11/19/13 at 6-13.) Appellant also completed a written plea colloquy which was explained to him by his attorney. (Id. at 7.) Appellant was clearly informed that under the terms of the plea agreement, his minimum sentence could be no greater -5- J. S69030/14 than 2 years but that there was no agreement as to the maximum sentence he could receive. (Id. at 6-7.) Appellant indicated he understood that the maximum sentence was 30 years’ incarceration. (Id. at 10.) Appellant stated that no one had coerced or threatened him to enter the plea, and other than the plea agreement, no promises had been made to entice a plea. (Id. at 9.) As the trial court states, it appears that appellant is simply disappointed in his sentence. (Trial court opinion, 3/12/14 at 5.) This conclusion is supported by appellant’s post-sentence motion, in which he stated, “[Appellant] has indicated to his undersigned counsel that he is dissatisfied with the above-referenced sentence and, if this Honorable Court denies his Motion to Modify Sentence, has requested that the undersigned counsel request the withdrawal of his plea of nolo contendere.” (Post-sentence motion, 12/2/13 at 5 ¶22; docket #28.) A showing of manifest injustice is required after imposition of sentence since, at this stage of the proceeding, permitting the liberal standard enunciated in [the presentence setting] might encourage the entrance of a plea as a sentence testing device. We note that disappointment by a defendant in the sentence actually imposed does not represent manifest injustice. Commonwealth v. Byrne, 833 A.2d 729, 737 (Pa.Super. 2003), quoting Muhammad, 794 A.2d at 383. Appellant failed to demonstrate a manifest injustice. To the contrary, the record shows that appellant entered his plea knowingly, voluntarily, and intelligently. There is no merit here. -6- J. S69030/14 Next, appellant presents a challenge to the discretionary aspects of his sentence, claiming that his sentence is manifestly excessive and disregards his rehabilitative needs. Appellant concedes the sentence complied with the express terms of the plea agreement and was within the standard range of the guidelines, but argues that the maximum sentence of 7 years was unjustified. A challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 1136 (Pa.Super.2001)[,] appeal denied, 568 Pa. 695, 796 A.2d 979 (2001). When challenging the discretionary aspects of a sentence, an appellant must invoke the appellate court’s jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); 42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal ‘furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court’s evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.’” Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385, 1387 (1989) (en banc) (emphasis in original). Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004). To demonstrate that a substantial question exists, “a party must articulate reasons why a particular sentence raises doubts that the trial court did not properly consider [the] general guidelines provided by the legislature.” Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 622 (2002), quoting, -7- J. S69030/14 Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225, 244 (1999). In Mouzon, our Supreme Court held that allegations of an excessive sentence raise a substantial question where the defendant alleges that the sentence “violates the requirements and goals of the Code and of the application of the guidelines . . . .” Id. at 627. A bald allegation of excessiveness will not suffice. Id. Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super. 2005), appeal denied, 897 A.2d 451 (Pa. 2006). Instantly, appellant has complied with the requirements of Rule 2119(f) by including such a statement in his brief. (Appellant’s brief at 10.) Therein, appellant contends that his sentence is “manifestly excessive, disproportionate to the actions of [appellant] and his rehabilitative needs.” (Id.) Initially, we note that appellant’s sentence fell within the standard range of the sentencing guidelines. See Commonwealth v. Maneval, 688 A.2d 1198, 1199-1200 (Pa.Super. 1997) (“Generally, if the sentence imposed falls within the sentencing guidelines, no substantial question exists.”), citing Commonwealth v. Johnson, 666 A.2d 690, 692 (Pa.Super. 1995). Appellant had a prior record score of 5, including prior drug offenses. (Notes of testimony, 11/19/13 at 13-14.) At the time he committed this offense, appellant was on parole. (Id. at 4-5.) PWID carries an offense gravity score of 7. (Id. at 2-3.) Appellant faced a maximum term of 30 years and a mandatory minimum term of 3 years; however, in accordance with the terms of the plea agreement, the Commonwealth -8- J. S69030/14 waived the mandatory minimum and agreed to a minimum sentence of no more than 24 months, which falls at the bottom end of the standard range of the sentencing guidelines. (Id. at 2-3, 5-6.) In exchange for his plea, the Commonwealth withdrew the remaining charges. Appellant waived his right to a pre-sentence investigation and asked to proceed directly to sentencing. (Id. at 13.) Appellant indicated he understood that there was no agreement on the maximum sentence he could receive and the trial court’s 2-7 year sentence complied with the terms of the plea bargain and was well within the guidelines. Appellant falls far short of raising a substantial question for our review. Even if we were to review appellant’s sentence on the merits, appellant would have to demonstrate that “the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2). Appellant has a lengthy history of dealing drugs, and previous attempts at rehabilitation were unsuccessful. (Trial court opinion, 3/12/14 at 4.) It is clear that the trial court imposed a 7-year maximum sentence to ensure that if appellant is paroled at the expiration of his minimum sentence, which could be as soon as 18 months, he receives the appropriate treatment and supervision. (Id.; notes of testimony, 11/19/13 at 22.) Appellant’s sentence was not clearly unreasonable. Judgment of sentence affirmed. -9- J. S69030/14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/12/2014 - 10 - 

570 So.2d 829 (1990) Charles Wesley EDWARDS v. STATE. 6 Div. 225. Court of Criminal Appeals of Alabama. August 3, 1990. Rehearing Denied September 21, 1990. William M. Dawson, Birmingham, for appellant. Don Siegelman, Atty. Gen., and Sandra Lewis, Asst. Atty. Gen., for appellee. BOWEN, Judge. Charles Wesley Edwards was convicted of manslaughter and sentenced to 15 years' imprisonment. This appeal is from that conviction. I. Edwards contends that "all the evidence supports the contention that the shooting occurred during the course of a struggle over the gun and while he was immediately trying to unload it," and that the trial court committed error in refusing to instruct the jury on the legal principle of accident. Appellant's brief at 26. Edwards submitted four written requested charges regarding accident. "Charge No. 24 "I charge you that if the death of the deceased is the result of an accident, then you cannot convict the defendant of murder." *830 "Charge No. 25 "I charge you that a killing done by accident cannot be the basis of a murder conviction. The laws recognizes that an accident may absolve the perpretrator of responsibility under the criminal law." "Charge No. 26 "I charge you that the offense of manslaughter as charged in the indictment cannot be sustained if you are convinced from the evidence that the killing was done by accident, and not by the intention of the defendant." "Charge No. 28 "I charge you that you cannot convict the defendant of either murder or manslaughter unless you find that the killing was done with the intention to take human life. Merely finding that the acts resulting in the loss of life were done recklessly, wantonly, carelessly or negligently will not support a finding of guilty of either murder or manslaughter as charged in the indictment." As a technical matter, these charges were properly refused. Charges 24, 25, and 26 were properly refused because each charge failed to define the meaning of the word "accident." Gautney v. State, 284 Ala. 82, 89, 222 So.2d 175, 182 (1969); Terry v. State, 540 So.2d 782, 785 (Ala.Cr.App.1988), cert. denied, 540 So.2d 785 (Ala.1989). Charge No. 28 was also properly refused because it is an incorrect statement of the law. A person may commit the crime of reckless manslaughter. Ala.Code 1975, § 13A-6-3(a)(1). See § 13A-6-3 Commentary under "Wanton or Reckless Conduct"; § 13A-2-2(3) (defining "recklessly"). Furthermore, that charge is confusing. See Owen v. State, 255 Ala. 354, 357, 51 So.2d 541, 543 (1951). Finally, each of the above requested charges was properly refused because each charge is not predicated on the evidence. "The refusal of a written instruction not hypothesized on a belief from the evidence is not error." Eslava v. State, 473 So.2d 1143, 1148 (Ala.Cr.App.1985). However, in this case defense counsel did more than merely submit requested instructions to the trial court. When the trial court concluded its oral charge, defense counsel requested the court to charge on the law of accident asserting that this aspect had been omitted from the charge and thereby preserving this issue for review. Salazar v. State, 505 So.2d 1287, 1289-90 (Ala.Cr.App.1986). "[Defense Counsel:] And then [the] next charges 24, 25, 26, and 28 deal with the concept of accident. We think that there wasn't any mention in the Court's oral charge in that these are correct statements of the law. That there should be some mention of the fact that if this happened accidentally or unintentionally then they would be entitled to find the defendant not guilty. "I think the whole oral charge has omitted that factor. "THE COURT: What was that last part now? "MR. DAWSON [defense counsel]: The fact that the idea of accident or unintentional action actually causing the death. And if [that] is so, the jury should be instructed they would be entitled to find the defendant not guilty." "Under Alabama law an accidental killing may support a conviction for murder, manslaughter, or negligent homicide, depending on the circumstances of the case." Ex parte Weems, 463 So.2d 170, 172 (Ala. 1984). Additionally, a truly accidental killing may result in no criminal responsibility. "A homicide by accident is an excusable homicide. It is an unintended homicide which occurs in the course of performing a lawful act, without criminal negligence." 2 C. Torcia, Wharton's Criminal Law § 136 (14th ed. 1979) (footnote omitted). "If by misfortune or misadventure, while in the performance of a lawful act, exercising due care, and without intention to do harm, human life is taken, the law will excuse. There must, however, be a concurrence of these facts, and the absence of any one will *831 involve in guilt." Tidwell v. State, 70 Ala. 33, 44-45 (1881), quoted in Turner v. State, 38 Ala.App. 73, 77, 77 So.2d 503, 506 (1954), cert. denied, 262 Ala. 704, 77 So.2d 506 (1955). "Where the death of a human being is the result of accident or misadventure, in the true meaning of the term, no criminal responsibility attaches to the act of the slayer. Where it appears that a killing was unintentional, that the perpetrator acted with no wrongful purpose in doing the homicidal act, that it was done while he was engaged in a lawful enterprise, and that it was not the result of negligence, the homicide will be excused on the score of accident or misadventure. Such accident may be shown under a plea of not guilty, and if established, requires a verdict of not guilty. Action accompanied, not only with no intent to do harm, but also with a reasonable belief that no harm is possible, is clearly wanting in every essential element of crime. Under this rule, a homicide is excused when caused by the discharge of a gun or pistol which the slayer did not intentionally point at the deceased, and while he was not engaged in any unlawful act, and without any carelessness or negligence on his part, for example, where the slayer is hunting, or where the accused is lawfully attempting to take a gun from the victim and it is accidentally discharged, or where the accused is lawfully acting in self-defense and the victim meets death by accident, through the unintentional discharge of a gun, or the like. "On the other hand, a homicide is not excusable on the ground of accident or misadventure unless it appears that the act of the slayer was lawful and free from negligence." 40 Am.Jur.2d Homicide § 112 (1968) (footnotes omitted). "The defendant has the right to request instructions based upon any material hypothesis which the evidence in his favor tends to establish. Johnson v. State, 257 Ala. 644, 60 So.2d 818 (1952). In determining whether an instruction was supported by the evidence the question is not whether the Supreme Court or Court of Criminal Appeals believes the evidence, but simply whether such evidence was presented. Hunter v. State, 295 Ala. 180, 325 So.2d 921 (1975); Giles v. State, 366 So.2d 351 (Ala.Cr.App.1978)." Ex parte McGee, 383 So.2d 205, 206 (Ala.1980). "[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility." Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978). See also Stephens v. State, 552 So.2d 162 (Ala.1989); Hopson v. State, 414 So.2d 464 (Ala.1982). "`It is the inescapable duty of the trial judge to instruct the jurors fully and correctly on the applicable law of the case, and to guide, direct and assist them toward an intelligent understanding of the legal and factual issues involved in their search for truth.'" Grayco Resources, Inc. v. Poole, 500 So.2d 1030, 1033 (Ala.1986), quoting McClendon v. Reynolds Electrical and Engineering, 432 F.2d 320 (5th Cir.1970). Although the question was one for the jury, Edwards presented a very plausible case that the shooting was accidental. While that was the only real issue in this case, the trial court never mentioned the term "accident" in his oral charge. Contrary to the State's argument, the trial court's instructions on the intent elements involved in murder, manslaughter, and criminally negligent homicide did not fairly and substantially cover the legal principles involved in accident. The appellant's conviction must be reversed because the trial court refused to charge the jury on the legal principle of accident as it related to homicide. Because we must reverse on this issue, we do not consider the two other issues presented on this appeal. However, we note that while chief deputy coroner Jay Glass is qualified to testify to the cause of the victim's death, Woodard v. State, 401 So.2d 300, 303 (Ala. Cr.App.1981), his detailed testimony as to the nature of the wounds may not be based solely on the autopsy report prepared by *832 Dr. Garcea. See Bird v. State, [Ms. 3 Div. 938, February 23, 1990] (Ala.Cr.App.1990). The judgment of the circuit court is reversed, and this cause is remanded for further proceedings not inconsistent with this opinion. REVERSED AND REMANDED. All Judges concur.

28 F.3d 686 40 Fed. R. Evid. Serv. 1336 UNITED STATES of America, Plaintiff-Appellee,v.Santos ACEVEDO, Defendant-Appellant. No. 93-1536. United States Court of Appeals,Seventh Circuit. Argued March 30, 1994.Decided July 1, 1994. Barry R. Elden, Asst. U.S. Atty., Terry Kinney (argued), Crim. Receiving, Appellate Div., Chicago, IL, for U.S. Richard R. Mottweiler, James A. Graham (argued), Chicago, IL, for Santos Acevedo. Before BAUER, FLAUM and RIPPLE, Circuit Judges. FLAUM, Circuit Judge. 1 The defendant was convicted of three drug trafficking offenses after attempting to sell one and one-half kilograms of cocaine to an acquaintance-turned-government - informant. His arrest for the failed deal led to a search of an apartment (apparently his) where marijuana, cocaine and drug mixing equipment, among other things, were found. Relying upon the testimony of the informant, the testimony of a DEA drug expert, and physical evidence from the apartment, the district court at sentencing attributed to the defendant eleven kilograms of cocaine in addition to the drugs actually seized. He challenges both this determination and a evidentiary ruling that the district court made during his jury trial. 2 When arrested the defendant was in possession of a false Illinois driver's license that bore the defendant's photograph, listed a Social Security number of a deceased individual named Santos Acevedo, and was issued in the name of Santos Acevedo. (The government charged the defendant as Santos Acevedo because it was unable to ascertain the defendant's true identity.) This information was presented to the jury. The defendant argues that it constituted evidence of "other wrongs," inadmissible under Fed.R.Evid. 404(b) for its tendency to show that he was a person of bad character and therefore more likely to have committed the charged offenses. 3 The possession of false identification by a drug trafficking defendant at the time of the trafficking, however, is not merely generalized evidence of bad character. Rather, by indicating that the defendant wished to conceal his identity during ongoing involvement with drugs, it can help prove an element of the offense charged, namely that the defendant possessed a culpable state of mind. This is a legitimate use of such evidence, whether one conceives of it as outside the scope of Rule 404(b) because of the evidence's "intrinsic" value deriving from its specific relationship to the facts of the offense or as countenanced by Rule 404(b) because of its relevance in proving a non-character-related consequential fact--consciousness of guilt. See, e.g., United States v. Wilson, 11 F.3d 346, 353 (2nd Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2142, 128 L.Ed.2d 870 (1994); United States v. Wint, 974 F.2d 961, 967 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1001, 122 L.Ed.2d 151 (1993); United States v. Horton, 873 F.2d 180, 181 (8th Cir.1989); United States v. Kloock, 652 F.2d 492, 494-95 (5th Cir. Unit B 1981); cf. United States v. Silverman, 771 F.2d 1193, 1199-1200 (9th Cir.1985), withdrawn, 796 F.2d 339 (9th Cir.1986), and superseded on other grounds, 861 F.2d 571 (9th Cir.1988). Either way, the evidence is relevant to the defendant's state of mind entirely apart from how it reflects upon his character (and under current circuit law, the government is entitled to present "other acts" evidence to assist in proving such a material element of an offense even if it is not in dispute, see United States v. Maholias, 985 F.2d 869, 879 (7th Cir.1993); United States v. Chaimson, 760 F.2d 798, 803-04 (7th Cir.1985)). The district court insured that the evidence was properly so viewed by specifically instructing the jury as to the limited use to which it could be put. We also believe the danger of unfair prejudice arising from the disclosure of the defendant's possession of a false driver's license was slight. It was entirely within the district court's discretion to conclude that the jury would not draw unjustified inferences about the defendant as a drug dealer because of his willingness to assume the identity of a dead man and would not be so enraged by the nature of the act that it would disregard its mandate to decide the defendant's guilt or innocence only with respect to the offenses charged. 4 After the defendant was arrested, he consented to a search of an apartment of which he was apparently a resident. (Keys found on the defendant opened the apartment door and a utility bill found in the defendant's car bore the apartment's address). DEA agents found the apartment unoccupied (although loud music was playing inside). The apartment was spartanly furnished but did contain a loaded pistol and two scales (triple-beam and electronic) on a small table in the dining room, a shotgun in the closet, several bags of marijuana in the bedroom, and more drug-related items in the kitchen--specifically, there were two plastic bags containing a total of about 1.7 kilograms of high purity cocaine powder, next to the sink there was a white powder mixture alongside implements for cutting and mixing cocaine, in the trash inside a single bag there were twelve large ziplock plastic bags, of the same type as the bags found containing cocaine, and a green wrapper, all with white powdery residue on them, and around the kitchen there were other, smaller plastic bags. A DEA expert tested the powder inside one of the large bags for the presence of cocaine with positive result and testified that the other large bags smelled of cocaine. He also testified that in his opinion the green wrapper also contained cocaine residue and both it and the large ziplock bags were used, at one point or another, for storing or transporting kilogram quantities of cocaine. He stated that a red wrapper found next to one of the bags of cocaine was, like the green wrapper, used to package cocaine before it was cut. The agent opined that the apartment was used as a cocaine distribution hub and based on the packaging materials found concluded that at least fifteen kilograms of cocaine had passed through it. 5 The government also offered the testimony of the informant in support of its argument that at least fifteen kilograms of cocaine should be attributed to the defendant. The informant testified that he had had an ongoing drug-buying relationship with the defendant and in the course of that relationship had purchased from the defendant, or discussed the defendant's receipt of, very large quantities of cocaine, forty and forty-five kilograms on two occasions. The district court refused to fully credit the testimony of the informant (who was receiving favorable treatment from the government in exchange for his cooperation) because he had a long record of deceit, including lying to agents earlier in this investigation about the extent to which the defendant was the source of a separate eight kilogram delivery. However, the court did rely on the informant's testimony in combination with other evidence in the case, especially the content and tone of a recorded conversation between him and the defendant, to conclude that a drug-related relationship did exist. The court turned to the physical evidence from the apartment to ascertain the extent of the relationship and only accepted the informant's statements of amount to the extent they were so corroborated. Noting the sophisticated drug distribution equipment at the apartment and finding the testimony of the DEA agent credible, the court determined that the plastic baggies indicated by their size and the presence of cocaine residue that at least eleven additional kilograms of cocaine went through the apartment, and the court considered such to be relevant conduct under U.S.S.G. Sec. 1B1.3. The defendant was accordingly sentenced. 6 The defendant asserts that the district court's conclusions were clearly erroneous, United States v. Montgomery, 14 F.3d 1189, 1196 (7th Cir.1994); United States v. Sykes, 7 F.3d 1331, 1335 (7th Cir.1993); United States v. Rivera, 6 F.3d 431, 444 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1098, 127 L.Ed.2d 411 (1994), in two respects: first, because they relied to some extent on the testimony of the untrustworthy informant and, second, because they were, at the end of the day, conjectural. The informant was indeed of dubious credibility. The district court recognized as much and thus placed no faith in those parts of his testimony that were not independently corroborated. This was entirely within its discretion to do, see, e.g., United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir.1993); United States v. Soria, 965 F.2d 436, 443 (7th Cir.1992), and our analysis must turn to whether the evidence as a whole supported the attribution to the defendant of the cocaine from the apartment, especially the eleven kilograms of cocaine not found but presumed to have been processed and distributed by the defendant's operation out of the apartment. 7 First of all, the defendant asserts that there was not sufficient evidence to link him to the goings-on in the apartment, mostly because the only fingerprints found in the apartment were those of another man. However, the keys to the apartment found in the defendant's possession, the receipts in his name found in the apartment, including the receipt to the pager that he used in arranging the set-up cocaine sale to the informant, as well as the presence in the apartment of undeveloped photographs of the defendant, the fact that an apartment employee collected rent from the defendant and that the defendant himself implied his role in ongoing distribution activity when negotiating with the informant, amply indicate the defendant's connection to the apartment and to the sophisticated and open drug operation being carried out there. And because the defendant does not otherwise argue that there was insufficient evidence to support the conclusion that drugs distributed from the apartment "were part of the same course of conduct or common scheme or plan as the offense of conviction," U.S.S.G. Sec. 1B1.3(a)(2); see also United States v. Mumford, 25 F.3d 461, 465 (7th Cir.1994), he is accountable for the amount of cocaine that can fairly be associated with that distribution operation. 8 The district court was right to attempt to estimate the quantity of cocaine that actually went through the apartment as part of this single drug operation beyond the amount that was actually seized. See U.S.S.G. Sec. 2D1.1, application note 12. The defendant challenges that estimate as speculative, or, in other words, clearly not supported by a preponderance of the evidence. The district court arrived at a more conservative figure than the one the government and its expert witness advanced, eleven additional kilograms instead of fifteen (and an additional twenty that the government urged the defendant had previously sold to the informant). The court accepted that the large kilogram bags containing cocaine residue (according to the testimony of the DEA expert which, since based on his personal inspection, the court undoubtedly could credit) probably each held separate kilogram quantities of cocaine at one time. The court did not attribute additional kilograms based on the red and green wrappers and the many smaller baggies found in the apartment as the government had asked. 9 We are not persuaded that the district court's estimate was too speculative to be sustained. It was clear that the apartment served as a center for distributing large amounts of cocaine and that more than the 1.7 kilograms that were actually found at the time of the search were processed for distribution on the site. To arrive at a figure that would reflect the true scope of the operation the district court utilized a measurement that was objectively based and unlikely to result in double counting. The large baggies were kilogram capacity and, given the use to which like bags were actually put and the presence of cocaine residue, the conclusion that they were largely filled at one time was sound. Furthermore, the district court did not unthinkingly add up the total volume of all cocaine-related containers found in the apartment; rather, it excluded those which could have held the same cocaine in different stages of processing: the wrappers were conceivably used for importation and the smaller baggies for individual sales and their capacities were not factored into the calculus. On the other hand, no reason was offered why cut cocaine would be poured from one large bag into another and, especially in light of the availability of numerous smaller bags, the testimony of the DEA expert that they likely held their own respective quantities of cocaine on the order of a kilogram could be credited. Estimating the amount of drugs that went through an ongoing operation on the basis of a snapshot of that operation is inherently an inexact science but is one in which the district courts must be engaged. The district court here recognized the caution with which the task must be approached and took pains to err on the side of underestimation. There was no clear error. The conviction and sentence are affirmed.

746 F.2d 1367 James JOHNSON, Appellant,v.A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee. No. 84-1250. United States Court of Appeals,Eighth Circuit. Submitted July 11, 1984.Decided Oct. 30, 1984. William C. Harbour, Bryant, Ark., for appellant. Steve Clark, Atty. Gen., and Michael E. Wheeler, Asst. Atty. Gen., Little Rock, Ark., for appellee. Before HEANEY, BRIGHT and ROSS, Circuit Judges. PER CURIAM. 1 James Johnson appeals from a denial of his petition for writ of habeas corpus under 28 U.S.C. Sec. 2254 (1982). For reversal Johnson argues the district court1 erred in accepting the Magistrate's2 findings, after an evidentiary hearing, that his guilty plea was knowingly and voluntarily made and with effective assistance of counsel.3 We affirm. 2 On May 11, 1979, Johnson entered a plea of guilty to first degree murder. He was represented by court-appointed counsel, who had met with him several times and conducted an independent investigation of the case. Counsel interviewed two witnesses who would have testified that they saw appellant shoot the victim, and two witnesses who placed appellant in the area of the shooting. Although the criminal information alleged that Johnson had committed two or more prior felonies, counsel determined that if the case went to trial, the prosecution would amend its information and prove four or more prior felonies, and that appellant had been represented by counsel at the time of each conviction. Johnson proposed the defense that he had been "hexed" or, in the alternative, that he was not at the scene of the crime. 3 Counsel advised Johnson that the prosecution had a strong case and that if he were convicted, he would receive a sentence of not less than fifty years nor more than life imprisonment in the Arkansas State Penitentiary and/or a possible fine of up to fifteen thousand dollars. Ark.Stat.Ann. Secs. 41-1502 and 41-1001 (1977) (amended 1981). In the alternative, he could plead guilty and be sentenced to forty years imprisonment. Johnson chose the plea agreement. Upon arrival at the Arkansas State Penitentiary, he learned that, because he was classified a fourth offender, he was ineligible for parole. He thereafter brought this petition for habeas corpus. 4 When a plea is challenged, the record must be examined to assure that the plea was entered voluntarily with sufficient awareness of the relevant circumstances and likely consequences and with the advice of competent counsel. Williams v. State of Missouri, 640 F.2d 140, 147 (8th Cir.1981). After reviewing the record, we find that, although the state trial judge might have interrogated appellant more thoroughly, the test enunciated in Williams was satisfied. 5 Johnson also argues that he was inadequately informed or actually misinformed about parole eligibility. In Pennington v. Housewright, 666 F.2d 329, 332 n. 5 (8th Cir.1981), cert. denied, 456 U.S. 918, 102 S.Ct. 1775, 72 L.Ed.2d 178 (1982), we noted that the voluntariness of a guilty plea could be established more conclusively if the defendant was informed of his eligibility for parole. However, in Hill v. Lockhart, 731 F.2d 568, 570 (8th Cir.1984), reh'g en banc granted, No. 83-1397 (May 10, 1984), aff'd by an equally divided court en banc, No. 83-1397 (September 20, 1984), we noted that the failure of a trial judge to explain the details of parole eligibility is insufficient grounds for ruling that a guilty plea is involuntary. We need not consider whether a different situation arises where an attorney misrepresents parole eligibility to his client because we find no evidence contrary to the magistrate's finding that counsel did not promise petitioner that he would be paroled. 6 Therefore, because the reasoning and conclusions of the Magistrate, as adopted by the district court, are not clearly erroneous, we affirm. See 8th Cir.R. 14. 1 The Honorable G. Thomas Eisele, Chief Judge, United States District Court, Eastern District of Arkansas 2 The Honorable Henry L. Jones, United States Magistrate, Eastern District of Arkansas 3 Although appellant raised several issues before the Magistrate and raises two issues before this Court, we believe both issues may be condensed

125 F.2d 493 (1942) PARRY v. BACHE et al. No. 10042. Circuit Court of Appeals, Fifth Circuit. February 5, 1942. Charles W. Zaring, of Miami, Fla., for appellant. Melvin J. Richard, of Miami Beach, Fla., for appellees. Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges. *494 HUTCHESON, Circuit Judge. Defendants, citizens of the city and state of New York, and resident therein, are co-partners in a banking and brokerage business with their principal office in New York and branches and agencies in other cities and states. Plaintiff, a resident citizen of Florida and a customer of defendants, by purchases of listed stocks, arranged through their Miami, Florida office, brought this suit in the state court for an accounting with reference to stocks for which he had given purchase and sale orders to defendants.[1] Defendants removed the cause into the Federal court and alleging that the suit was upon "an issue referable to arbitration under an agreement in writing for such arbitration",[2] moved for[3] and after hearing on "affidavits filed and proof heard", were granted a stay of the trial of the action until such arbitration has been had in accordance with the terms of the agreement.[4] Plaintiff here, insisting that the invoked statute is without application, makes seven points against the appealed order: (1) *495 That the agreement is not, within the meaning of the Statute, in writing; (2) that there is not sufficient signing by the partners under New York law to make the arbitration agreement binding; (3) that there is not sufficient proof of the purchase and sale of stocks alleged to constitute interstate commerce; (4) that assuming the purchase and sale this did not constitute such commerce; (5) that the accounting plaintiff sued for is not a controversy within the arbitration clause; (6) that arbitration goes to the remedy, the remedy to be applied is determined by the law of the forum, and under Florida law the arbitration agreement is not enforceable; (7) plaintiff, under Florida law, had a defense to the agreement, while the suit was in the state court and its removal could not deprive him of this defense. We cannot agree with plaintiff. It is perfectly clear that the agreement for arbitration was in writing,[5] and that it was made and acted on by both plaintiff and defendants under circumstances which bound them both to its terms as written, including Clause 10 for arbitration. It is also too clear on the record for any question to be made of it that the matter in suit involved orders by mail and telegraph for, and actual purchases and sales of, stock in interstate commerce.[6] Finally, it is equally clear that; the case involves a controversy covered by the arbitration agreement; that having been removed to the federal court, it proceeds as though it had been originally commenced there,[7] that the invoked statute being remedial,[8] controls the procedure in the federal court; and that the view the state court might take of the arbitration agreement is wholly immaterial. In this view, the agreement being clearly one "evidencing a transaction involving commerce", we do not undertake to determine whether as ably argued,[9] by appellees, the invoked section of the arbitration act is broader than the preceding sections and, not limited as those are, to maritime transactions and those involved in commerce, extends to all issues "referable to arbitration under an agreement in writing for such arbitration." The judgment granting the stay was right. It is affirmed. NOTES [1] It was alleged: (1) That defendants were engaged in the business of buying and selling stocks and other securities for customers upon commission and in furnishing customers facilities for such purchase and sale; (2) that plaintiff gave, on April 16th and 20th, 1940, buying orders and made margin deposits with defendants; (3) that it was defendants' duty to actually purchase the stocks and hold them until sold or delivered on plaintiff's order; (4) that defendants accepted the orders and represented that they had purchased the stock; (5) that to protect himself from losses, plaintiff, from time to time, placed stop loss orders with defendants but on information and belief, they ignored them and sold the stocks after a heavy decline; (6) that plaintiff is without exact knowledge of the state of his account or the price at which the stocks were sold or whether defendants actually purchased the stocks. There was a prayer, for an accounting, and a judgment in accordance therewith. [2] The agreement relied on is the regular General Customers Agreement. Signed by plaintiff, it requests the opening of an account for the purchase of stocks; agrees to be bound by the provisions of the Customers Margin Agreement attached, and also signed by plaintiff; agrees that all transactions for his account are to be subject to the rules of the exchange where transactions are executed, makes further agreements, and concludes with Section 10, the arbitration clause: "This agreement and its enforcement shall be governed by the laws of the State of New York. Any controversy between you and me arising out of, or relating to this contract, or the breach thereof, shall be determined by arbitration in accordance with the rules, then obtaining, of either the Arbitration Committee of the Chamber of Commerce of the State of New York, or the American Arbitration Association, or the Arbitration Committee of the New York Stock Exchange, as I may elect. If I do not make such election by registered mail addressed to you at your main office within five days after receipt of notification from you requesting such election, then you may make such election. Any arbitration hereunder shall be before three arbitrators and the award of the arbitrators, or a majority of them, shall be final, and judgment upon the award rendered may be entered in any Court, State or Federal, having jurisdiction. I agree that notices of, and in, any such arbitration may be sent to me by mail, and waive personal service thereof." [3] The motion attached a photostatic copy of the agreement for arbitration between plaintiff and defendants, alleged that plaintiff had refused, though requested by defendants to make election of an arbitration committee, to arbitrate pursuant to the Customers Agreement and defendants had elected the American Arbitration Association. Attached to the motion were the correspondence requesting and declining arbitration and affidavits, of one of the partners, of one William Graham, employee in the margin department of the New York office, and of the manager of and a customer's man in the branch office in Miami. Graham's affidavit, supported by affidavits of five of the employees, contained a full statement of the plaintiff's account and showed that the stocks had been purchased as ordered and sold because not sufficiently margined, that plaintiff's account was credited with the proceeds of the sales, and a check for the balance remaining was transmitted to him. The Miami affidavits set out that plaintiff had made his dealings through the Miami office of defendant's firm and that these orders had been transmitted by telegraph to the New York office and then transmitted to a representative of the firm on the floor of the New York stock exchange. [4] Stay of proceedings where issue therein referable to arbitration. "If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration." 9 U.S.C.A. § 3. [5] Krauss Bros. Lumber Co. v. Louis Bossert & Sons, 2 Cir., 62 F.2d 1004; 12 Am.Jur. 609; Cousens v. Watson, 130 Me. 456, 157 A. 232; Klapp v. Bache & Co., 229 App.Div. 415, 242 N.Y.S. 155; National Cash Register Co. v. Lesko, 77 Conn. 276, 58 A. 967; Reeves Furniture Co. v. Simms, Tex.Civ.App., 59 S.W.2d 262; National Bank of Commerce of Houston v. Moody, Tex.Civ.App., 90 S. W.2d 279; McDermott v. Mahoney, 139 Iowa 292, 115 N.W. 32, 116 N.W. 788. [6] Securities Exchange Act 1934, 15 U. S.C.A. §§ 78b and 78c, 17; Securities and Exchange Commission v. Torr, D. C., 15 F.Supp. 315; Cerritos Gun Club v. Hall, 9 Cir., 96 F.2d 620; 15 C.J.S., Commerce, § 17, p. 277; Newfield v. Ryan, 5 Cir., 91 F.2d 700; Oklahoma-Texas Trust v. Securities and Exchange Commission, 10 Cir., 100 F.2d 888; Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160. [7] 28 U.S.C.A. § 81; Savelle v. Southern Railway Company, 5 Cir., 93 F.2d 377, 114 A.L.R. 1261. [8] Beale, A Treatise on the Conflict of Laws, pp. 1245-46. [9] Cf. Marine Transit v. Dreyfus, 284 U.S. 263, 52 S.Ct. 166, 76 L.Ed. 516; Shanferoke Coal & Supply Corp. v. Westchester Service Corp., 2 Cir., 70 F.2d 297, affirmed 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583; In re Utility Oil Corp., 2 Cir., 69 F.2d 524.

[J-19-2017][M.O. – Baer, J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT ROY H. LOMAS, SR., D/B/A ROY LOMAS : No. 87 MAP 2016 CARPET CONRACTOR, : : Appeal from the Order of the Superior Appellee : Court dated 12/21/15 at No. 2391 EDA : 2011 affirming the judgment of the v. : Court of Common Pleas of Montgomery : County, Civil Division, entered on : 8/16/11 at No. 2000-05929 JAMES B. KRAVITZ, CHERRYDALE : CONSTRUCTION CO., ANDORRA : SPRINGS DEVELOPMENT, INC., AND : KRAVMAR, INC. F/K/A EASTERN : DEVELOPMENT ENTERPRISES INC., : : Appellants : ARGUED: March 8, 2017 DISSENTING OPINION CHIEF JUSTICE SAYLOR DECIDED: September 28, 2017 Although I agree with the majority that a motion for recusal must be promptly filed, my view diverges from the majority’s application of the “earliest possible moment” standard and its conclusion that Appellants’ filing was untimely. Majority Opinion, slip op. at 15. I believe that, in the circumstances presented, Appellants’ submission was not late, and further, they demonstrated an appearance of impropriety, warranting the recusal of the full Montgomery County bench. Beginning with the “earliest possible moment” precept, the language of this standard, if taken literally, suggests that an immediate response is required, akin to an evidentiary objection, which I believe is problematic in the recusal context. For example, the Superior Court’s Opinion in Support of Affirmance (“OISA”) in this matter indicated that Appellants were required to halt the proceedings and file a recusal motion immediately following Judge Branca’s testimony that revealed his financial interest, rather than proceed with the other witnesses who were present and prepared to testify that day. See Lomas v. Kravitz, 130 A.3d 107, 120 (Pa. Super. 2015) (en banc) (OISA).1 In this respect, the majority’s reasoning does not elaborate what considerations or circumstances generally inform the timeliness analysis. Instead, it merely recites the number of elapsed days and observes that the parties’ evidentiary presentations had concluded. As the United States Supreme Court has cautioned, a request for recusal “should not be made lightly.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 826-27, 106 S. Ct. 1580, 1588 (1986) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149 (1923) (explaining that recusal motions should be filed with “care and good faith”)); In re Crawford's Estate, 307 Pa. 102, 109, 160 A. 585, 587 (1931) (“The charge of disqualification is serious, and should not be made lightly or frivolously.”). “[A] request for the disqualification of a trial judge is a most serious undertaking which should not be pursued absent thorough factual investigation and legal research.” Johnson v. Dist. Court In & For Jefferson Cty., 674 P.2d 952, 957 (Colo. 1984). Even though judges are presumed to be impartial arbiters and conscientious of potential biases and appearances of such, some practitioners express reservations that seeking recusal will be taken personally by the judge to the detriment of the client and counsel. See Debra Lyn Bassetta, Rex R. Perschbacher, The Elusive Goal of 1 The Superior Court OISA also indicated that Appellants had an opportunity to seek recusal when they were informed of Judge Branca’s prior representation. See Lomas, 130 A.3d at 120 (OISA). I agree with the majority, however, that Appellants were not aware of all the facts relevant to their recusal motion until Judge Branca testified on September 6, 2007. See Majority Opinion, slip op. at 18. [J-19-2017][M.O. – Baer, J.] - 2 Impartiality, 97 IOWA L. REV. 181, 204 (2011) (acknowledging attorneys’ concerns that the suggestion of disqualification “has the potential to antagonize the challenged judge, either consciously or subconsciously, with the result that the moving litigants and their counsel may suffer” (quoting RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES §1.7, at 18 (2d ed. 2007))). Thus, the perceived potential for retribution may cause counsel to be reluctant to file a motion in the first instance. See Jeffrey Cole, Jilting the Judge: How To Make and Survive a Motion To Disqualify, 34 LITIGATION, no. 2, Winter 2008, at 48 (“Lawyers are as quick to see bias as they are reluctant to file disqualification motions.”). Additional reluctance may stem from a lack of substantial information supporting the request, apart from speculation and hearsay. See Amanda Frost, Keeping Up Appearances: A Process-oriented Approach to Judicial Recusal, 53 U. KAN. L. REV. 531, 568-69 (2005) (observing that, in many instances, a party will only possess uncorroborated information and noting that there are rarely procedures for investigating speculation or gossip, thus resulting in a reluctance to advance a disqualification claim). Further, there is arguably some procedural ambiguity in Pennsylvania’s recusal jurisprudence that may result in requests not being sought with absolute immediacy. Relative to initiating a recusal request, the case law has variously referred to an “application by petition” or the filing of a “motion,” Reilly by Reilly v. SEPTA, 507 Pa. 204, 220, 489 A.2d 1291, 1299 (1985), as well as the lodging of an “objection,” Goodheart v. Casey, 523 Pa. 188, 199, 565 A.2d 757, 763 (1989); see also Reilly, 507 Pa. at 222, 489 A.2d at 1300 (“In order to preserve an issue for appeal, [the party has] [J-19-2017][M.O. – Baer, J.] - 3 to make a timely, specific objection at trial and raise the issue on post-trial motions.” (emphasis in original)).2 Although this historical lack of consistency may be attributable to deviations in nomenclature, it is notable that there are no statutory or rules-based procedures for recusal in Pennsylvania, as there are in other jurisdictions.3 See, e.g., 28 U.S.C. §144 (“Bias or prejudice of judge”), §455 (“Disqualification of justice, judge, or magistrate judge”); ALASKA STAT. §22.20.022 (“Peremptory disqualification of judge”); Alaska R.Crim.P. 25 (“Judge—Disqualification or Disability”); Colo.R.C.P. 97 (“Change of Judge”); Fla.R.Jud.Admin. 2.330 (“Disqualification of Trial Judges”); Ind. R. Trial P. 76 (“Change of venue”). The only written directive that arises in the recusal context comes by way of reference to Rule 2.11 of the Code of Judicial Conduct, which has been employed to inform the recusal standard. See Goodheart, 523 Pa. at 200, 565 A.2d at 763 (suggesting that a judge’s self-evaluation of impartiality is guided by the factors provided in the Code of Judicial Conduct); Kenneth S. Kilimnik, Recusal Standards for Judges in Pennsylvania: Cause for Concern, 36 VILL. L. REV. 713, 726 (1991) (“Since 2 Tangentially, there is some criticism of the Reilly Court’s recusal analysis (which later cases frequently referenced) insofar as it relied on In re Crawford’s Estate, 307 Pa. 102, 160 A. 585 (1931). Specifically, Reilly adopted the recusal procedures from Crawford’s Estate without acknowledging that the Crawford’s Estate Court’s explication pertained to the then-existing recusal statutes, which had been repealed prior to the Reilly decision. See Kenneth S. Kilimnik, Recusal Standards for Judges in Pennsylvania: Cause for Concern, 36 VILL. L. REV. 713, 725-27 (1991). 3 Although not applicable in civil matters, such as the present case, the Rules of Criminal Procedure require that requests for disqualification be included in an omnibus pretrial motion for relief. See Pa.R.Crim.P. 578, Comment (7). The Comment further advises that this rule is “not intended to limit other types of motions, oral or written, made pretrial or during trial,” but it encourages the “earliest feasible submission” of such matters. Id.; see also Pa.R.J.C.P. 346, Comment (same). [J-19-2017][M.O. – Baer, J.] - 4 1974, the Code of Judicial Conduct had provided the sole non-case derived principles in Pennsylvania governing judicial recusal . . ..”). The lack of codified procedural direction has been cited as an impediment to requesting recusals. See Frost, Keeping Up Appearances: A Process-oriented Approach to Judicial Recusal, 53 U. KAN. L. REV. at 567 (“The very absence of statutorily prescribed procedures discourages lawyers from moving for disqualification and makes recusal motions all the more ad hoc and exceptional.”). In all, the above concerns reflect significant uncertainties on the part of practitioners that may reasonably delay the submission of recusal motions. Accordingly, given the importance of recusals in maintaining the legitimacy of the judiciary, see Emma J. Payne, Note, Let the Sun Shine in: A Judicially Implied Timeliness Requirement Creates A Murky Standard for Federal Judges and Litigants and Perpetuates an Appearance of Bias in the Federal Judiciary, 40 OKLA. CITY U. L. REV. 597, 606 (2015) (footnote omitted), and this atmosphere of uncertainty, I would not construe the “earliest possible moment” standard as implicating an objection-like immediacy mandate for raising a recusal issue on pain of waiver. Nonetheless, a timeliness requirement is a necessary component of the recusal framework in order to avoid unnecessary delays and judge-shopping, both of which impair the judicial process. Scott v. Pryor (In re Chandler's Cove Inn, Ltd.), 74 B.R. 772, 773 (Bankr. E.D.N.Y. 1987) (“[R]ecusal motions which are too liberally granted are tantamount to unilateral ‘judge shopping’ and may be used for a delaying tactic, for their disposition requires a serious investment of judicial time and thought.”). Thus, I believe that questions of timeliness should be subject to a more discerning analysis, recognizing the above difficulties and providing some notice to litigants who may be faced with recusal scenarios. In the absence of delineated [J-19-2017][M.O. – Baer, J.] - 5 procedures, I would adopt the four-factor test employed by some federal courts in assessing whether a party seeking recusal does so at the “earliest possible moment”: whether (1) the movant has participated in a substantial manner in trial or pre-trial proceedings; (2) granting the motion would represent a waste of judicial resources; (3) the motion was made after the entry of judgment; and (4) the movant can demonstrate good cause for delay. United States v. Amico, 486 F.3d 764, 773 (2d Cir. 2007) (quoting Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 334 (2d Cir. 1987)). The demonstration of good cause for delay is “at the crux of the balancing” of these factors. Id. at 775 (quoting United States v. Brinkworth, 68 F.3d 633, 639 (2d Cir.1995)); cf. Reilly, 507 Pa. at 222, 489 A.2d at 1300 (explaining that moving party had failed to offer an excuse for its delay in filing the motion for recusal). The federal courts have also viewed this four-factor test as encompassing a good-faith requirement. See Planned Parenthood of Se. Pa. v. Casey, 812 F. Supp. 541, 546 (E.D. Pa. 1993) (citing Smith v. Danyo, 585 F.2d 83, 85 (3d Cir. 1978)). Applying these factors here, it is evident that Appellants have substantially participated in the litigation, and that recusal of the trial judge at this late stage of the proceedings would represent a waste of judicial resources, thus militating toward the conclusion that the filing was late. However, these two factors must be tempered, at least in part, by acknowledging that the relevant facts undergirding the recusal motion arose at this late juncture in the litigation.4 Furthermore, Appellants served Appellee with a request for production of documents seeking additional information relative to Judge Branca’s involvement and financial interest on September 24, 2007, only 18 days 4 In terms of applying the test to situations in which the facts implicating recusal are discovered near the end of proceedings, these two factors may be viewed as generally providing less overall guidance. [J-19-2017][M.O. – Baer, J.] - 6 following the pertinent hearing and prior to the closure of the record. Appellee refused the request and instead later opted to seek a protective order for the sought-after documentation. Regarding the timing of the filing relative to the entry of judgment, although there had been an adverse judgment against Appellants as to liability, the broader recusal concerns appear to have pertained to Judge Branca’s financial interest that was contingent on the calculation of damages and discovered subsequent to the liability verdict.5 Additionally, Appellants’ filling of the recusal motion on October 15 coincided with a previously scheduled conference with the judge and parties to address briefing and final argument; thus, the motion was submitted in advance of any actual or anticipated intervening action by the court. In this regard, I respectfully differ with the majority’s determination that the closure of the record, relative to the particulars of this case, is significantly material to the timeliness inquiry. See Majority Opinion, slip op. at 19. Accordingly, Appellants’ request should be considered as having been forwarded prior to the entry of judgment.6 As to the final and most critical factor, good cause for delay, Appellants develop that they needed to carefully consider their claim for recusal and that they filed prior to 5 The parties had previously agreed to proceed before Judge Rogers premised on Appellee’s erroneous representation that Judge Branca’s involvement in the matter had ended and all of his fees paid. See N.T., Nov. 9, 2007, at 48-49 (Appellee’s counsel acknowledging that they had indicated that “all counsel fees had been paid” to Judge Branca). 6 Although the Superior Court OISA also observed that Appellants’ filing followed James Kravitz’s “appalling” testimony regarding his financial activity, Lomas, 130 A.3d at 125, it seems to me that most parties to a litigation will experience adverse circumstances at some point, particularly in lengthy and complex matters. Thus, although Kravitz’s testimony may appear particularly harmful, it is difficult to assess its direct import on Appellants’ reasoning relative to recusal. Accordingly, I limit my rationale to the distinct actions taken by the trial court. [J-19-2017][M.O. – Baer, J.] - 7 any further advancement of the litigation, assertions which I believe provide reasonable explanations for the timing of their request. Furthermore, as previously noted, Appellants requested discovery pertaining to Judge Branca, and they also retained new counsel, both of which may be viewed as indicators that Appellants recognized the gravity of suggesting the recusal of not only the sitting trial judge, but all of his Montgomery County colleagues. Additionally, an earlier filing -- for example, within the 30-day review period -- would not have caused any less disruption or delay in the proceedings. See Riley v. State, 608 P.2d 27, 29-30 (Alaska 1980) (relaxing application of strict time limits on the basis that, inter alia, the later submission did not cause any additional delay than would have occurred if timely motioned). But see Wakefield v. Stevens, 290 S.E.2d 58, 61 (Ga. 1982) (concluding that a 20-day delay was untimely). Accordingly, given the peculiar circumstances of this case and the lack of concrete procedural guidance, I find that good cause existed to justify Appellants’ filing at the October 15 conference. Assessing the sum of these factors, with emphasis on Appellants’ good cause for delay, I believe the motion for recusal should be deemed timely. Since I would conclude that Appellants did not waive their challenge, I turn to the primary questions presented for review pertaining to whether the trial judge and/or the rest of the common pleas court should have recused in light of their colleague’s participation and direct and proportional financial interest.7 7 Appellee contends that, since the issues presented for review are framed in terms of whether recusal was required “as a matter of law,” the Court is precluded from determining whether Judge Rogers abused his discretion in refusing to recuse. Lomas v. Kravitz, __ Pa. __, 147 A.3d 517 (2016) (per curiam). From my perspective, the substance of this matter pertains to the propriety of recusal in the circumstances, and I do not read the issues in such a strictly constrained manner. [J-19-2017][M.O. – Baer, J.] - 8  Appellants’ advocacy closely tracks the reasoning of the Superior Court’s Opinion in Support of Reversal (“OISR”), arguing that the appearance of propriety standard is an independently sufficient basis for recusal, see Goodheart, 523 Pa. at 201-02, 565 A.2d at 764, and that Pennsylvania courts have required recusal in factually similar situations, see, e.g., Commonwealth ex rel. Armor v. Armor, 263 Pa. Super. 353, 398 A.2d 173 (1978). They further contend that proper application of the recusal framework relative to Judge Branca’s financial interest mandates the recusal of the entire Montgomery County bench, since the disqualifying circumstances would apply equally to the entire flight of jurists. In Appellants’ view, the trial court and OISA improperly limited review to only whether actual bias or prejudice existed. Appellants also criticize Appellee’s proffered “fully informed person” standard -- assessing the appearance of impropriety from the perspective of a person who is “fully informed of all . . . surrounding facts and circumstances” and who closely examines those facts to determine whether the proceedings will be, or were, fairly conducted, or whether the record reveals actual bias or prejudice. Brief for Appellee at 15, 32 (emphasis in original). Appellants contend that adopting such a view would essentially result in a post hoc evaluation of whether the process was fair and just, rather than the foundational question underlying the appearance inquiry, which is distinctly aimed at ensuring the public’s faith in the judiciary. Further, Appellants observe that Appellee offers no procedures for determining “all of the true facts and surrounding circumstances,” and that to do so would likely require a remand for a hearing and discovery, much in line with the request for documents that Appellants filed, but which was denied. Instead, in Appellants’ view, analyzing the appearance of impropriety should simply focus on whether “a significant minority of the lay community could reasonably question the court’s impartiality.” Reply Brief for Appellants at 10 (quoting [J-19-2017][M.O. – Baer, J.] - 9 Commonwealth v. Darush, 501 Pa. 15, 24, 459 A.2d 727, 732 (1983)). Lastly, Appellants dispute that they have conceded that the proceedings were fair and without error, noting that they sought to challenge various aspects of Judge Rogers’ damages determination, but that such issues were denied by this Court for review. In response, Appellee effectively concedes that the appearance of impropriety may independently warrant recusal, but contends that any application should be made by reference to the “fully informed” person. Brief for Appellee at 25 (citing Pepsico v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985), as cited in 207 Pa. Code §15-4). In this respect, Appellee argues that, since there is no dispute that Judge Rogers ruled impartially and conducted a fair trial, a person fully informed of these facts could not view Judge Branca’s intermittent participation and financial interest as establishing an appearance of impropriety. Stated another way, Appellants’ concession that they had a fair trial moots any appearance of impropriety. See Reilly, 507 Pa. at 222, 489 A.2d at 1300 (“If the cause is appealed, the record is before the appellate court which can determine whether a fair and impartial trial were had. If so, the alleged disqualifying factors of the trial judge become moot.”). Appellee further forwards that this Court has previously found that the lack of actual prejudice or bias during a trial ameliorates any concerns regarding an appearance of impropriety. See Brief for Appellee at 28 n.2 (citing In re Lokuta, 608 Pa. 223, 240, 11 A.3d 427, 436-37 (2011)). Appellee also contends that, except for matters involving public corruption or obvious conflicts of the adjudicating judge, the trial judge has discretion to assess the appearance of impropriety.8 Because this matter does not fall within the narrow subset of cases that present an appearance of impropriety as a matter of law, see 207 Pa. 8 I agree with the largely undisputed notion that appellate courts should review recusal decisions for an abuse of discretion. See Reilly, 507 Pa. at 220, 489 A.2d at 1299. [J-19-2017][M.O. – Baer, J.] - 10 Code §15-4 (advising as to potential categorical scenarios implicating the appearance of impropriety), it is Appellee’s position that Judge Rogers’ ruling in this matter should not be overruled. Moreover, even if Judge Rogers’ recusal was appropriate, Appellee proffers that, relative to disqualifying the sum of the Montgomery County bench, the Court should consider the resulting prejudice to him and Appellants’ ongoing manipulation of the judicial system. Appellee continues that requiring court-wide recusal in all instances where a litigant was a former client of a sitting judge and provided a referral fee would be unworkable. As a final point, Appellee contends that any reliance on Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 (2009), is misplaced, given the significantly differing factual circumstances. On the merits, my view substantively aligns with the reasoning developed in the Superior Court’s Opinion in Support of Reversal (“OISR”). See Lomas v Kravitz, 130 A.3d 107, 132-45 (Pa. Super. 2015) (OISR). In particular, I agree that the appearance of impropriety standard is an independent substantive precept that may warrant recusal, and that Judge Rogers and the full Montgomery County bench should be recused in this instance predicated on Judge Branca’s participation and direct and proportional financial interest in the discretionary damages award despite the presumption that Judge Rogers and the other jurists would handle the matter with impartiality and fairness. Further, I believe the OISR correctly recognized that the case law had, in some instances, mistakenly deemed a trial judge’s decision with regard to the appearance of impropriety an “unreviewable decision,” when that axiom should only pertain to a judge’s self-evaluation for actual bias or prejudice. See id. at 138-41 & n.33. [J-19-2017][M.O. – Baer, J.] - 11  As for Appellee’s contentions that are not addressed by the OISR’s reasoning, I remain unpersuaded. Regarding the notion that the appearance standard should incorporate the fully informed person framework, I agree that the analysis should be made in light of all the surrounding facts and circumstances, rather than based on incomplete or mistaken information. However, as Appellants cogently observe, Appellee’s proffered standard effectively reviews whether the proceedings were fair and just and whether actual bias or prejudice can be found in the record, rather than addressing the gravamen of the appearance of impartiality inquiry, i.e., whether there could be a public perception of impartiality that undermines confidence in the judiciary. See Reilly, 507 Pa. at 221, 489 A.2d at 1299 (“[T]he administration of justice should be beyond the appearance of unfairness . . . so that courts may as near as possible be above suspicion . . ..”). In this respect, the Caperton Court’s observation that a “judge's own inquiry into actual bias . . . is not one that the law can easily superintend or review . . .” demonstrates the practical difficulty with Appellee’s preferred post-judgment analysis. Caperton, 556 U.S. at 883, 129 S. Ct. at 2263. Further, the Caperton decision required an objective test to protect due process principles, which is satisfied by the appearance of impropriety standard. See id. Moreover, although the notion of fairness may facially appear to ameliorate appearance concerns relative to certain objective aspects of the proceedings, the lack of record evidence proving partiality does little to counter the potential public perception that a discretionary ruling, such as the damages calculation in this case, was materially influenced by a judge’s relationship with a financially interested entity. Accordingly, I am of the view that the appearance of impropriety -- that is, “conduct [that] would create in reasonable minds a perception that the judge violated [the Code of Judicial Conduct] or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, [J-19-2017][M.O. – Baer, J.] - 12 temperament, or fitness to serve as a judge,” Code of Judicial Conduct Rule 1.2, Comment [5] -- alone forms an independent basis for recusal, even in the absence of actual bias, unfairness, or prejudice on the part of the trial judge. See Lomas, 130 A.3d at 133 (OISR).9 As to Appellee’s policy perspective, insisting that court-wide recusals, based on a prior relationship between sitting-judges’ and former clients, would prove unworkable, this contention seems predicated on a far broader set of factual circumstances than are at issue in this matter. Here, the Court is concerned only with the implications of a current judge’s participation and presently existing financial interest that is directly and proportionally tied to the monetary award determined by a colleague of the same court. Of course, newly elected judges transitioning from private practice will need to be aware of the challenges that such a shift presents, but I do not believe that the position expressed here would impose the significantly disruptive burdens that Appellee predicts. Lastly, although I agree with Appellee that Caperton is distinguishable on its facts, the import of that case, at least relative to Appellee’s claims, is its due process based mandate for objective appellate review of the appearance of impropriety, thus reinforcing the notion that appearances -- apart from actual bias, prejudice, and unfairness -- are a necessary component of the recusal framework. 9 The OISR notes that some authorities employ the above language from the Code of Judicial Conduct, while others follow Appellants’ preferred formulation, pertaining to a significant minority of the lay community. See Lomas, 130 A.3d at 140 n.31 (OISR). From my perspective, this is largely a distinction without a difference, although it appears to me that the former has been referenced with greater frequency than the later. See, e.g., 207 Pa. Code. §15-4 (formal advisory opinion regarding disqualification and recusal). [J-19-2017][M.O. – Baer, J.] - 13  Ultimately, I am of the view that Judge Branca’s participation in this matter and his present primary financial interest in the monetary damages, assessed by a colleague who shares the same bench, establishes an appearance of impropriety that warrants the recusal of the entirety of the Court of Common Pleas of Montgomery County. Further, I believe that this conclusion requires a new trial as to both liability and damages before a judge assigned from outside of Montgomery County. Although the relevant facts apparently were not revealed to Judge Rogers and Appellants until the damages phase, the appearance of impropriety created by Judge Branca’s participation and financial interest clouds both phases of the trial, which could have been avoided had a full disclosure been proffered when the matter initially arose pretrial. See supra note 5.10 10 Although the above reasoning would dispose of this matter, there are additional potential procedural irregularities that emerged in this case relative to Judge Rogers’ initial order for recusal of the full Montgomery County bench, which I believe reinforces the uncertainty that seems to envelope this area of law in Pennsylvania jurisprudence. For example, in some jurisdictions, recusal orders may not be reconsidered by the issuing judge, even if filed “prematurely,” Lomas v. Kravitz, No. 00-05929, at 8 (C.P. Montgomery Cnty. filed Dec. 31, 2008), or otherwise erroneously submitted. See Moody v. Simmons, 858 F.2d 137, 143 (3d Cir. 1988) (“Once a judge has disqualified himself, he or she may enter no further orders in the case[, with power thus] limited to performing ministerial duties necessary to transfer the case to another judge (including the entering of ‘housekeeping’ orders).” (citations omitted)). But see United States v. Lauersen, 348 F.3d 329, 338 (2d Cir. 2003) (concluding that a judge may revisit a recusal order, citing changed circumstances as an example of circumstances justifying such). Additionally, the prevailing view among jurisdictions is that once the recusal order is signed, the submitting judge is barred from reentering the case, except for narrow circumstances in which the disqualifying factor is removed, or there was a material error as to the existence of the recusal-inducing fact. See Luce v. Cushing, 868 A.2d 672, 677-78 (Vt. 2004) (collecting cases). However, there is a minority view that takes a more strict approach, prohibiting a recused judge from rendering any further decisions in the case, regardless of circumstances. See Jenkins v. Motorola, Inc., 911 So. 2d (continued…) [J-19-2017][M.O. – Baer, J.] - 14 (…continued) 196, 197 (Fla. Dist. Ct. App. 2005) (citation omitted); Tatum v. Orleans Par. Sch. Bd., 894 So. 2d 1180, 1181 (La. Ct. App. 2005) (citation omitted). Although, in the proper case, the above considerations may be dispositive, the parties’ present advocacy has not been developed along these lines. [J-19-2017][M.O. – Baer, J.] - 15 

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS UNITED STATES v. Airman Basic WILLIAM P. SMITH JR. United States Air Force ACM 38728 17 May 2016 Sentence adjudged 12 July 2014 by GCM convened at Keesler Air Force Base, Mississippi. Military Judge: Shaun S. Speranza. Approved Sentence: Bad-conduct discharge. Appellate Counsel for Appellant: Major Isaac C. Keenen. Appellate Counsel for the United States: Lieutenant Colonel Roberto Ramirez; Major Mary Ellen Payne; and Gerald R. Bruce, Esquire. Before MITCHELL, DUBRISKE, and BROWN Appellate Military Judges OPINION OF THE COURT This opinion is issued as an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4. BROWN, Judge: At a general court-martial composed of officer and enlisted members, Appellant was convicted, contrary to his pleas, of two specifications of communicating indecent language, in violation of Article 134, UCMJ, 10 U.S.C. § 934. 1 The court sentenced Appellant to a bad-conduct discharge. 1 Appellant was found not guilty of abusive sexual contact, aggravated sexual contact, an additional specification of indecent language, assault consummated by a battery, and disorderly conduct, in violation of Articles 120, 128, and 134, UCMJ, 10 U.S.C. §§ 920, 928, 934. These offenses all involved the same alleged victim, who was not the named victim in the indecent language specifications Appellant was convicted of at trial.  On appeal, Appellant contends: (1) the evidence is factually insufficient to sustain one of the indecent language convictions, (2) the military judge’s standard beyond-a- reasonable-doubt instruction was erroneous, and (3) the prosecutor erred in referencing that purported erroneous instruction during findings argument. We disagree and affirm the findings and sentence. Background Appellant was an Airman Basic (E-1) assigned to Keesler Air Force Base (AFB), Mississippi, as a technical school student. Both indecent language specifications involved sexually explicit comments he made to female technical school students in March and April of 2013. As to the specific incident relevant to this appeal, it occurred on Keesler AFB in the food court at the Base Exchange (BX). On the afternoon of 3 April 2013, the victim and a female friend, A1C VC, went to a sandwich shop at the BX. They were both in civilian clothes and sat down in a less populated portion of the food court to eat their meal. Appellant, who was in uniform at the time, approached them and sat down at a table next to them. Appellant was approximately four to five feet away. Neither the victim nor A1C VC knew Appellant. Appellant asked them their names, where they were from, and if they had boyfriends. When Appellant learned that A1C VC was engaged, he focused his comments and questions more toward the victim. The tone of Appellant’s conversations to this point was casual and flirty. Appellant’s tone, however, changed when a male friend of Appellant arrived and sat down across from him. At a volume loud enough to be heard by both the victim and A1C VC, Appellant told his friend, “Doesn’t she look like something that you would want to take to a hotel room, tie and tape her up, and have sex with her until she begs, and then maybe if she begs you to stop, then maybe you will stop.” He continued by saying he wanted to take pictures of the victim while she was tied up and post the pictures on Facebook with a comment saying, “This is mine.” While Appellant was talking, he was glancing toward the victim and making eye contact. The victim testified she believed these comments were directed toward her—both because they referenced her and Appellant was making eye contact with her while he was talking. The victim and A1C VC were both shocked and offended by the comments. The victim was scared by Appellant’s comments. Factual Sufficiency Although Appellant does not contest that he made the statements attributed to him, he argues the statements were not indecent for two reasons: (1) Appellant was speaking to his friend rather than the victim, and (2) the statement was not indecent considering the Air Force community standards as a whole. 2 ACM 38728  We review issues of factual sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual sufficiency is “whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, [we are] convinced of the accused’s guilt beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). In conducting this unique appellate role, we take “a fresh, impartial look at the evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to “make [our] own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.” Washington, 57 M.J. at 399. Uttering indecent language is not specifically enumerated in the UCMJ as a criminal offense, but it is punishable under Article 134, UCMJ. In the Manual for Courts-Martial, United States (MCM), the President prescribed the elements which the Government was required to prove beyond a reasonable doubt in order to establish its case against Appellant: (1) That the accused orally or in writing communicated to another person certain language; (2) That such language was indecent; and (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. MCM, pt. IV, ¶ 89.b. (2012 ed.); see also Department of the Army Pamphlet (D.A. Pam.) 27-9, Military Judges’ Benchbook, ¶ 3-89-1.c. (1 January 2010). Indecent language is defined as, “that which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought.” MCM, pt. IV, ¶ 89.c. It must also be calculated to corrupt morals or incite libidinous thoughts. United States v. Brinson, 49 M.J. 360, 364 (C.A.A.F. 1998) (quoting United States v. French, 31 M.J. 57, 60 (C.M.A. 1990)). The language must be evaluated in the circumstances under which the charged language was communicated. See id. (holding profanity did not constitute indecent language where it was intended to express rage rather than sexual desire). To be indecent, the language must violate community standards. MCM, pt. IV, ¶ 89.c. When determining whether certain language violates community standards, it is appropriate to consider the larger Air Force worldwide community. United States v. Baker, 57 M.J. 330, 339 (C.A.A.F. 2002). 3 ACM 38728  Here, Appellant had only met the victim moments before he made the statement. He used the language in a public eating area, on base, while he was in uniform. Based on their interactions to that point, there was nothing to suggest that the victim welcomed the statement or considered it appropriate. Appellant, though ostensibly talking to his friend, made eye contact with the victim as he made the statement and talked loudly enough for the victim to hear him. This was not a private conversation between friends that was inadvertently overheard by a passerby—it was a sexually charged statement that Appellant directed toward both his friend and the victim. It was a statement calculated to corrupt morals and incite libidinous thoughts. Appellant, both at trial and on appeal, further argued that these statements did not violate community standards of decency. To this end, the Defense introduced evidence of sexually explicit books, songs, magazines, and movies that were sold at the BX. Appellant also points to the testimony of several witnesses, to include A1C VC, regarding their hearing similar sexual comments by others in the past. Despite Appellant’s reliance on this testimony, there were few specifics about these other purportedly similar comments and no testimony regarding the context of when and where the statements were made. We are convinced that Appellant’s language in this case, considering the facts and circumstances surrounding its utterance, violated the standards of the larger Air Force worldwide community. Both A1C VC and the victim testified they were shocked by the comments of someone they viewed as a stranger. Though we acknowledge that some people in the military may have heard similar statements under different circumstances, there was nothing to suggest that the community standards are such that statements similar to the ones here are frequently exchanged by strangers, in uniform, on base, and in public. Further, the availability of sexually explicit materials in a base library, or for sale at the BX, does not deter us from this conclusion. One’s ability to purchase sexually explicit media for private consumption is a far cry from what occurred here. We are not persuaded by Appellant’s argument that his statements here did not constitute indecent language. Weighing all the evidence admitted at trial and mindful of the fact that we have not heard the witnesses, this court is convinced beyond a reasonable doubt that Appellant is guilty of the offense. Beyond a Reasonable Doubt Instruction During voir dire and prior to deliberations on findings, the military judge instructed the members as follows with respect to proof beyond a reasonable doubt: A “reasonable doubt” is a conscientious doubt based upon reason and common sense, and arising from the state of evidence. Some of you may have served as jurors in civil cases, or as members of an administrative boards, where you 4 ACM 38728  were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government’s proof must be more powerful than that. It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the accused’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty. If, on the other hand, you think there is a real possibility that the accused is not guilty, you must give him the benefit of the doubt and find him not guilty. In addition, during trial counsel’s rebuttal argument in findings, trial counsel reread the military judge’s beyond a reasonable doubt instruction to the members. At no point did Appellant object to the military judge’s instruction, which is the standard Air Force instruction on proof beyond a reasonable doubt.2 It is the military judge’s duty to properly instruct the members at trial. See United States v. Quintanilla, 56 M.J. 37, 83 (C.A.A.F. 2001). We review de novo the military judge’s instructions to ensure that they correctly address the issues raised by the evidence. United States v. Maynulet, 68 M.J. 374, 376 (C.A.A.F. 2010). In examining instructions provided by the military judge, an appellate court examines “whether the instruction as a whole provides meaningful legal principles for the court-martial’s consideration.” United States v. Truman, 42 C.M.R. 106, 109 (C.M.A. 1970). “The military judge has considerable discretion in tailoring instructions to the evidence and law. United States v. Hopkins, 56 M.J. 393, 395 (C.A.A.F. 2002). Where, as here, trial defense counsel made no challenge to the instruction now contested on appeal, the appellant has forfeited the objection in the absence of plain error.3 Rule for Courts-Martial (R.C.M.) 920(f). If we find error, we must determine whether the error was harmless beyond a reasonable doubt. United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011). Appellant now argues on appeal that this instruction, as recited by the military judge and argued by the prosecutor, violates Supreme Court precedent prohibiting a trial judge 2 Though Appellant asserts that the Defense did object to trial counsel’s recitation of this instruction during the findings argument, a review of the record refutes this. A careful reading of the record reveals that the objection was to trial counsel’s characterizing the Defense as improperly asking the members to speculate about information and testimony not offered into evidence. Appellant did not raise this as an issue on appeal. 3 Although we recognize that the rule speaks of “waiver,” this is in fact forfeiture. United States v. Sousa, 72 M.J. 643, 651 (A.F. Ct. Crim. App. 2013). 5 ACM 38728 from “directing the jury to come forward with a [guilty verdict].” United States v. Martin Linen Supply Co., 430 U.S. 564, 572–73 (1977). The military judge did not attempt to override or interfere with the court members’ independent judgement. The members retained their authority to determine the amount of evidence that they—rather than the military judge—believed constituted sufficient evidence to prove an element beyond a reasonable doubt. The military judge directed the members to return a finding of guilty if the members determined that the Government had proven the accused’s guilt beyond a reasonable doubt. In other words, the military judge instructed the members to follow and apply the law. Appellant, however, argues that the members have the authority to disregard the law and return a finding of not guilty regardless of whether they conclude that the Government has proven each element beyond a reasonable doubt—a concept commonly referred to as jury nullification. In United States v. Hardy, however, the Court of Appeals for the Armed Forces held that a court-martial panel does not have the right of jury nullification or “have the right to nullify the lawful instructions of a military judge.” 46 M.J. 67, 75 (C.A.A.F. 1997) (emphasis added). Furthermore, the language used by the military judge in Appellant’s case is—and has been for many years—an accepted reasonable doubt instruction used in Air Force courts-martial. See, e.g., United States v. Sanchez, 50 M.J. 506, 509 (A.F. Ct. Crim. App. 1999); United States v. Taylor, ACM 38700, unpub. op. at 23–24 (A.F. Ct. Crim. App. 25 February 2016); United States v. McClour, ACM 38704, unpub. op. at 16–17 (A.F. Ct. Crim. App. 11 February 2016); see also United States v. Gibson, 726 F.2d 869, 873–74 (1st Cir. 1984) (upholding similar language). The very language used by this military judge, that became the standard beyond a reasonable doubt instruction for the Air Force, was also offered by our superior court as a suggested instruction. See United States v. Meeks, 41 M.J. 150, 157–58 n.2 (C.M.A. 1994) (citing Federal Judicial Center, Pattern Criminal Jury Instruction 17-18 (1987)). Based on this legal landscape, we cannot say that the military judge committed error, plain or otherwise, in his reasonable doubt instruction. In addition, for these same reasons, it was also not error for trial counsel to recite the military judge’s instruction during the findings rebuttal argument. Conclusion The approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). 6 ACM 38728 Accordingly, the approved findings and sentence are AFFIRMED. FOR THE COURT LEAH M. CALAHAN Clerk of the Court 7 ACM 38728 

430 S.W.2d 536 (1968) The VECTOR CORPORATION and Miltex Oil and Gas Corporation, Appellants, v. FIRST STATE BANK & TRUST COMPANY OF PORT LAVACA, Texas, Charles H. Stevenson, Jr., and Charles H. Stevenson, Jr., Trustee, Appellees. No. 4703. Court of Civil Appeals of Texas, Waco. June 20, 1968. Rehearing Denied July 11, 1968. *537 Kleberg, Mobley, Lockett & Weil, J. Lev Hunt, Corpus Christi, Rochelle & Gandy, Dean M. Gandy, Dallas, for appellants. Sorrell, Anderson & Porter, Wm. R. Anderson, Jr., Butler, Schraub & Gandy, Roger Butler, Corpus Christi, for appellees. OPINION WILSON, Justice. The bank sued the Vector Corporation, Miltex Oil & Gas Corporation and Charles Stevenson, individually and as trustee, on a 1965 promissory deed of trust note for $100,000 payable to the bank. It was signed "Charles H. Stevenson, Jr., individually and as Trustee". The trial court, after a non-jury trial, rendered judgment against all defendants jointly and severally, granting Stevenson judgment over against Vector and Miltex. We first dispose of appellants' complaint of judgment for Stevenson, individually, against Vector and Miltex. There was no pleading or evidence to support the judgment, and it is vacated. The chief question in this case is whether Vector and Miltex are liable to plaintiff bank for payment of the note which was executed solely by Stevenson, individually and as trustee. The only cause of action alleged by the bank was that to enforce payment of the note. It alleged reasons for liability of the two corporations on the note. It asserted that Stevenson was president and manager of Vector and Miltex, and was owner of one-third of the capital stock of one and 18½% of the stock of the other; that the corporations "authorized or acquiesced" in and ratified Stevenson's acts in making the loan represented by the note; that he held legal title to the property described in the deed of trust securing payment of the note as trustee for the corporations; that their operations, income and properties "were commingled"; that Stevenson subsequently assigned most of the properties to Miltex; that the corporations were "estopped to deny they are indebted to plaintiff by reason of the above described note", having "enjoyed the fruits thereof," using the proceeds to pay corporate debts. Vector and Miltex are not liable on the note, in our opinion. Art. 5932, Sec. 18, Vernon's Ann.Civ. Stat., (Sec. 18, Uniform Negotiable Instruments Act), in effect when the note was executed, provides: "No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided." Appellee relies on Secs. 19 and 20 of Art. 5932 as constituting modifications of Sec. 18 which permit recovery. Sec. 19, however, merely authorizes the "signature" of a party to be made by an agent. It concerns the name of a party placed on the instrument by another. Sec. 20, on the other hand, relates only to liability of the signer; not that of a non-signatory party. Parol evidence was not admissible to establish liability beyond the terms of the instrument where the cause of action asserted is on the note. The instrument "cannot be made the obligation of one *538 not a party by extrinsic proof, regardless of what are the real facts." By the parol evidence rule the evidence "is inadmissible because it is an attempt to add to the terms of a written instrument." Farrier v. Hopkins, 131 Tex. 75, 112 S.W.2d 182, 183.[1] The bank insists also that parol evidence is admissible because there is an "ambiguity" in the note. The ambiguity claimed is that the note does not disclose for whom Stevenson was trustee. "Ambiguity" relates to language of doubtful or uncertain meaning. 3 Words and Phrases, "Ambiguous." There is no ambiguity present. The evidence is undisputed that the bank relied on Stevenson personally to pay the note. The ledger sheets and accounting records of the bank show Stevenson alone as being liable on the notes. No writing in the bank's records evidenced liability of Vector or Miltex. The bank's evidence, however, made it undisputed that the corporations were disclosed principals and the bank was fully cognizant of the relationship between them and Stevenson. The president of the bank who made the loan testified the loan represented by the note was not made to the corporations; that they were not "primary obligors on the note"; that they were not "guarantors"; that they were "not obligated on the note directly"; that Stevenson was the one the bank was "looking to"; that until just before suit "it had not even occurred" to the president that "the corporation might be liable", or that "the corporation owed the money". He requested that Stevenson sign the note individually and as trustee. The president of appellee bank testified, "I much prefer not to have a loan in a corporate name; paper work that's involved, resolutions, etc. I much prefer to deal through an individual." Under these facts, as Justice Gaines said, the principal being disclosed and the note showing that Stevenson, the agent, is bound, the bank "elected in the contract itself to look to the agent, and the principal is not liable." Heffron v. Pollard, 73 Tex. 96, 11 S.W. 165, 166. The basis for the rule was there stated to be that if plaintiffs knew when the contract was made that it was made for the benefit of a disclosed principal, "the writing showed that they had elected to look to the agent for its performance, and parol evidence was not admissible to vary the writing to show that they did not so elect." The rule is "very different from the case of an undisclosed principal", the Supreme Court there said. See Farrier v. Hopkins, 131 Tex. 75, 112 S.W.2d 182; First State Bank of Riesel v. Dyer, 151 Tex. 650, 653, 254 S.W.2d 92, 95; Garcia v. Yzaguirre, Tex.Com. App., 213 S.W. 236, 240; Day Ranch Co. v. Hubert & Woodward, Tex.Civ.App., 32 S.W.2d 252, writ ref. In our opinion appellants' contention is correct also that judgment against Vector and Miltex was erroneous because the evidence is undisputed that the trust asserted by the bank was an express trust relating solely to realty. It was not a resulting or constructive trust. Under Art. 7425b-7, Vernon's Ann.Civ.Stat., parol evidence was not admissible to establish such an express trust. See Sevine v. Heissner, 148 Tex. 345, 224 S.W.2d 184; Morrison v. Farmer, 147 Tex. 122, 213 S.W.2d 813. *539 The bank says the judgment is sustainable on its theories of ratification and estoppel. There are equitable defenses. Since they are defensive in character, they do not create liability or a cause of action. Their function is "to preserve rights, not to bring into being a cause of action." Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660, 663; Cotton Belt State Bank v. Roy H. Hatcheries, Tex. Civ.App., 351 S.W.2d 325. They do not constitute a cause of action or basis for one. Sessions v. Whitcomb, Tex.Civ.App., 329 S.W.2d 470, writ ref. n. r. e.; Jones v. Texas Gulf Sulphur Co., Tex.Civ.App., 397 S.W.2d 304, writ ref. n. r. e., and authorities cited. We have considered the bank's other theories of recovery, and none of them, in our opinion, is tenable. We do not reach appellants' other points. Appellee Stevenson has filed a brief in which he presents two "cross-points" asserting error in denying him judgment against one Becker who is not a party (either appearing or served) to the suit. An appellee's right to present cross-points, where he has not perfected a separate appeal, as is the case here, is limited to those which "affect the interest of appellant or bear upon matters presented by the appeal." He may not, as appellee, use cross-points to assume the position of appellant to complain of a portion of the judgment against him in favor of one who is not a party to the appeal. Bowman v. Puckett, Tex.Civ.App., 185 S.W.2d 228, 231, syl. 5, approved, 144 Tex. 125, 188 S.W.2d 571, 575; and see Jackson v. Ewton, Tex. Sup., 1967, 411 S.W.2d 715, 717; opinion of Subcommittee, vol. 4, Vernon's Ann. Rules of Civil Procedure, p. 642. We have no jurisdiction of the second and third cross-points. We overrule the first. The judgment is reversed and here rendered that appellee Stevenson, individually and as trustee, and appellee bank take nothing as against Vector and Miltex. Costs are adjudged against appellees. The judgment in other respects is affirmed. NOTES [1] Gulf Liquid Fertilizer Co. v. Titus, 163 Tex. 260, 354 S.W.2d 378, relied on by appellee is a case involving the Statute of Frauds, Art. 3995, and not the parol evidence rule, or a negotiable instrument. It concerned a direct and independent promise to a creditor. The rule in Moore v. B. & M. Chevrolet Co., Tex. Civ.App., 72 S.W.2d 945, no writ, also urged by the bank, is restricted in the opinion to "instruments which are non-negotiable" or which are not required by common law to be under seal. McFarland v. Shaw, Tex.Com.App., 45 S.W. 2d 193 involved only liability of a signatory party. In Wood v. Key, Tex.Civ. App., 256 S.W. 314, no writ, liability was asserted "outside the note". The rule quoted by appellee was not sought to be applied to the note.

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ NORMAND P. RAINVILLE, Claimant-Appellant, v. SLOAN D. GIBSON, Acting Secretary of Veterans Affairs, Respondent-Appellee. ______________________ 2014-7052 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 13-70, Judge Coral Wong Pietsch. ______________________ Decided: July 11, 2014 ______________________ NORMAND P. RAINVILLE, of Apple Creek, Ohio, pro se. RICHARD P. SCHROEDER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depart- ment of Justice, of Washington, DC, for respondent- appellee. With him on the brief were STUART F. DELERY, Assistant Attorney General, ROBERT E. KIRSCHMAN, JR., Director, and CLAUDIA BURKE, Assistant Director. Of counsel on the brief were Y. KEN LEE, Deputy Assistant General Counsel, and CHRISTINA GREGG, Attorney, United 2 RAINVILLE v. GIBSON States Department of Veterans Affairs, of Washington, DC. ______________________ Before MOORE, O’MALLEY, and WALLACH, Circuit Judges. PER CURIAM. Normand P. Rainville appeals from the judgment of the United States Court of Appeals for Veterans Claims (Veterans Court) affirming the decision of the Board of Veterans Appeals (Board) denying Mr. Rainville’s claim for service connection for a cervical spine disability. We dismiss this appeal for lack of jurisdiction. BACKGROUND Mr. Rainville served in the United States Army from 1966 to 1970. In 1967, Mr. Rainville suffered a mild concussion after colliding with the wing of a stationary missile. He was hospitalized for two days, but his skull X- rays were reported as normal. In 1969, Mr. Rainville complained of muscle soreness in his back after he was in a motor vehicle accident. The X-rays following the inci- dent were negative for fractures. Mr. Rainville’s 1970 service separation examination was normal and he did not report any neck pain on the health history question- naire. In April 2007, Mr. Rainville was diagnosed with cervi- cal spondylotic myelopathy and degenerative joint disease of the cervical spine following an X-ray and magnetic resonance image (MRI). The X-ray and MRI did not reveal any fracture or dislocation of the cervical spine. Following his diagnosis, Mr. Rainville filed a claim for service connection for conditions which he characterized as resulting from his 1967 in-service collision with the wing of the stationary missile. He alleged that the dam- age to his cervical spine diagnosed in 2007 was a result of a long-term progressive degeneration triggered by the RAINVILLE v. GIBSON 3 missile wing collision. Mr. Rainville supported his claim with a statement by his physician noting that it was possible that Mr. Rainville’s degenerative condition was incited or worsened by prior injuries. The physician’s statement also explained that he could not definitively determine whether this was so without appropriate medical records from the time of injury. The Board denied Mr. Rainville’s claim. It relied up- on Mr. Rainville’s medical history as well as various medical opinions obtained in 2010 and 2012 in concluding that Mr. Rainville’s neck condition was not service- connected. The Veterans Court affirmed. It determined that there was a plausible basis for the Board’s decision and that the Board provided an adequate basis for its conclusions. Mr. Rainville appeals. DISCUSSION Our jurisdiction to review decisions of the Veterans Court is limited by statute. We have jurisdiction to review a decision of the Veterans Court “with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation . . . or any interpretation thereof . . . that was relied on by the [Veterans Court] in making the decision.” 38 U.S.C. § 7292(a) (2012). We lack juris- diction to review a “challenge to a factual determination” or a “challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). On appeal, Mr. Rainville makes two arguments. First, he argues that the Veterans Court erred in not applying the “benefit of the doubt rule” to his case. Appel- lant’s Informal Br. at 1. Second, he argues that the Board erred in failing to obtain the X-rays from his 1967 missile wing collision. Appellant’s Informal Br. Attach. 1 at 1–2. Mr. Rainville’s argument concerning the application of the “benefit of the doubt rule” is a factual challenge over which we lack jurisdiction. That rule states that, 4 RAINVILLE v. GIBSON “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b). The Veterans Court affirmed the Board’s fact finding that the preponderance of the evidence did not support enti- tlement to service connection. Because the evidence was not in equipoise, the Veterans Court held that the Board did not err in failing to apply the “benefit of the doubt rule.” Importantly, Mr. Rainville does not raise any challenge to the lawfulness or interpretation of this rule. Cf. Fagan v. Shinseki, 573 F.3d 1282, 1288–90 (Fed. Cir. 2009). Mr. Rainville’s challenge to the interpretation or weighing of the evidence is beyond our jurisdiction. See 38 U.S.C. § 7292(d)(2). Mr. Rainville’s complaint that the Board erred in fail- ing to obtain his 1967 X-rays amounts to a challenge to the reliability of the evidence used to establish that Mr. Rainville lacked service connection and is therefore out- side of our jurisdiction. The Board concluded that a written report associated with the 1967 X-rays was ade- quate and reliable evidence of Mr. Rainville’s 1967 inju- ries. In other words, it determined that the 1967 X-rays would have been cumulative over the 1967 written report. Reliability of evidence is a factual determination for the Board. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). To address the merits of Mr. Rainville’s ar- gument would require us to make our own factual deter- mination as to whether the 1967 written report was indeed reliable evidence. We lack jurisdiction to under- take such fact-based review and therefore cannot reach the merits of Mr. Rainville’s challenge. CONCLUSION For the foregoing reasons, the appeal is dismissed for lack of jurisdiction. DISMISSED RAINVILLE v. GIBSON 5 COSTS No costs. 

Cite as 2017 Ark. App. 313 ARKANSAS COURT OF APPEALS DIVISION I No. CR-15-817 Opinion Delivered May 17, 2017 TROY LAURENCE MCCULLEY APPEAL FROM THE POINSETT APPELLANT COUNTY CIRCUIT COURT [NO. 56CR-12-50] V. HONORABLE BRENT DAVIS, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED; MOTION DENIED BRANDON J. HARRISON, Judge Appellant Troy Laurence McCulley filed a petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2015), which was denied by the circuit court. McCulley was represented by counsel in the proceedings below, and after lodging an appeal, his postconviction counsel filed a motion to be relieved, which was granted by the Arkansas Supreme Court on December 10, 2015. McCulley v. State, No. CR-817 (Ark. Dec. 10, 2015) (order granting motion to be relieved). McCulley subsequently filed a pro se appellant’s brief, appellee responded, and McCulley filed a pro se reply brief. After the issues on appeal were thoroughly briefed, McCulley filed a motion for appointment of counsel. For the reasons stated below, we affirm the circuit court’s denial of postconviction relief, and McCulley’s motion for appointment of counsel is therefore denied.  Cite as 2017 Ark. App. 313 A jury convicted McCulley of one count of rape, three counts of felony possession of drug paraphernalia, and one count of misdemeanor possession of drug paraphernalia. He was sentenced to thirty years’ imprisonment for rape, and a $1000 fine was imposed for each of the drug offenses. This court affirmed his convictions on direct appeal. McCulley v. State, 2014 Ark. App. 330. McCulley filed a timely petition for postconviction relief and made numerous allegations of ineffective assistance of counsel, contending that his trial counsel failed to gain suppression of certain physical evidence, failed to object to the admission of a drug-screen analysis, and failed to object to the admission of irrelevant evidence and testimony. A hearing was conducted by the circuit court. The circuit court relied on the arguments presented at the hearing as well as an extensive review of the trial record and concluded that the arguments and objections that McCulley alleged trial counsel had erroneously failed to raise would have been meritless and otherwise would not have changed the outcome of his trial. On appeal, McCulley repeats some, but not all, of the claims raised below and argues that the circuit court erred by denying these claims for relief. The arguments that were made below but not raised on appeal are considered abandoned. State v. Grisby, 370 Ark. 66, 69, 257 S.W.3d 104, 107 (2007). Our jurisdiction is pursuant to footnote 1 in Barnes v. State, 2017 Ark. 76, 511 S.W.3d 845 (per curiam). The appellate court will not reverse the circuit court’s decision granting or denying postconviction relief unless it is clearly erroneous. Walden v. State, 2016 Ark. 306, at 2–3, 498 S.W.3d 725, 728–29 (per curiam); Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A finding is clearly erroneous when, although there is evidence 2  Cite as 2017 Ark. App. 313 to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Walden, 2016 Ark. 306, at 2–3, 498 S.W.3d at 728–29. When considering an appeal from a circuit court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on the totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), the circuit court clearly erred in holding that counsel’s performance was not ineffective. Id. Under the two-prong standard outlined in Strickland, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Id. The reviewing court must indulge in a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming ineffective assistance of counsel has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id. The second prong requires a petitioner to show that counsel’s deficient performance so prejudiced his defense that he was deprived of a fair trial. Id. Consequently, the petitioner must show there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless 3  Cite as 2017 Ark. App. 313 a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. In order to demonstrate the prejudice required under the Strickland test, a person seeking postconviction relief on a claim of ineffective assistance that is based on the failure of counsel to make a motion or objection must show that counsel could have made a successful argument. Breeden v. State, 2014 Ark. 159, at 6–7, 432 S.W.3d 618, 624 (per curiam). Failure to make a meritless objection or motion does not constitute ineffective assistance of counsel. Id.; Greene v. State, 356 Ark. 59, 70, 146 S.W.3d 871, 880 (2004). Before addressing McCulley’s arguments on appeal, it is necessary to review the evidence adduced at his trial. The trial record demonstrates that McCulley’s girlfriend, Loretta Collette, lured her sixteen-year-old niece, A.R., to McCulley’s residence. According to the testimony of A.R., after arriving at McCulley’s residence, she was drugged and taken to an outbuilding behind the main house, stripped naked, bound by her hands and feet, and raped by Collette and McCulley. A.R. was returned to her mother hours after she had been due home. Because of her unusual behavior, a drug test was administered by a local physician, and the test was positive for amphetamines. Eventually, A.R. reported to investigators that not only had she been drugged by McCulley and Collette, but that she had also been sexually assaulted by them. Subsequently, Collette admitted to police that she had participated in the assault, and based on Collette’s admissions, a search warrant for McCulley’s residence was obtained and executed. The search included the outbuilding described by A.R. The police seized numerous items as a result of the search, including, among other things, drug paraphernalia and pornographic videotapes. 4  Cite as 2017 Ark. App. 313 In his first point on appeal, McCulley argues that the circuit court erred by rejecting his ineffective-assistance-of-counsel claim that counsel had erroneously failed to gain the suppression of all evidence seized in the search of his residence and the outbuilding. According to McCulley, trial counsel failed to move to suppress this evidence on the basis that the warrant was deficient because the warrant was signed by the presiding judge before the affidavit establishing probable cause had been presented. McCulley maintains that all evidence seized would have been suppressed but for the failure of his counsel to challenge the manner in which the search warrant had been issued. 1 The record of the suppression hearing demonstrates that the affiant, Officer Erik Willbanks, testified that he had appeared before Judge Ron Hunter at 6:12 p.m. on January 16, 2012, and swore to the facts contained in the affidavit. The affidavit itself shows that it was signed by Willbanks at 6:12 p.m.; the affidavit originally reflected that it was signed and sworn before Judge Hunter at 6:00 p.m., but the number six was crossed out and replaced with the number seven. On the other hand, the related warrant signed and issued by Judge Hunter bears a typewritten time of 6:15 p.m. Based on the time discrepancy on the affidavit, McCulley argues that the search warrant was invalid, and all items seized as a result of its issuance should have been suppressed. The Arkansas Supreme Court rejected a similar argument that a search warrant was invalid based on a discrepancy between the date that appeared on the affidavit and the 1McCulley’s trial counsel filed a motion to suppress alleging that certain photographs and videotapes seized by police exceeded the scope of the warrant and, in the alternative, requesting that the photos and videos be excluded as prejudicial under Arkansas Rule of Evidence 403 (2015). Trial counsel did not challenge the sufficiency of the warrant itself. 5  Cite as 2017 Ark. App. 313 date the warrant was issued in Nance v. State, 323 Ark. 583, 597, 918 S.W.2d 114, 120–21 (1996). In that case, the supreme court affirmed the lower court’s conclusion that the warrant was valid despite an “apparent misprision” in the documents because the affiant had testified that he had appeared before the judge and sworn to the facts contained in the affidavit on the same date that the warrant had been issued. Id. Likewise, Willbanks testified at the suppression hearing that the affidavit was signed in the presence of the judge. When an affidavit states sufficient facts to establish probable cause for a search, discrepancies in the date or time the affidavit was executed will not invalidate a search warrant if the affiant appeared and provided sworn testimony that cures such errors. Nance, 323 Ark. at 597, 918 S.W.2d at 120–21; Johnson v. State, 2015 Ark. 387, at 4–5, 472 S.W.3d 486, 488–89. The circuit court did not clearly err when it found that, based on the testimony of Willbanks, the search warrant had been properly issued on a showing of probable cause in accordance with procedural rules. McCulley’s trial counsel was not ineffective for failing to make a motion that would not have been successful. Breeden, 2014 Ark. 159, at 6–7, 432 S.W.3d at 624. In his second argument on appeal, McCulley maintains that the circuit court erred when it rejected his ineffective-assistance-of-counsel claim based on allegations that trial counsel failed to object to the admission of photographs and items seized in the search as outside the scope of the warrant and otherwise irrelevant to the facts of the case. McCulley’s argument fails to specify the photographs and items of evidence to which he refers and cites no authority in support of his claim that trial counsel ineffectively allowed irrelevant and prejudicial evidence to be admitted. Moreover, trial counsel moved to suppress certain 6  Cite as 2017 Ark. App. 313 evidence on these same grounds, and McCulley does not identify the evidence that was not challenged by his trial counsel in the motion to suppress. In any event, the record demonstrates that the photographs introduced at trial consisted of photographs of the outbuilding where A.R. had been raped, depicting the bed with handcuffs hanging from pipes above the bed. These photographs corroborated the testimony of A.R. and Collette, who described this outbuilding as the room where the rape had taken place. The items that were introduced into evidence consisted of containers of lubricants and fur-lined handcuffs that A.R. stated had been used to restrain her, as well as sex toys of a type described by A.R. and Collette as having been used in the assault. The circuit court did not clearly err when it found that the photographs and items admitted during McCulley’s trial were relevant as having corroborated the testimony of both A.R. and Collette. See Watson v. State, 308 Ark. 643, 647, 826 S.W.2d 281, 284 (1992) (Evidence corroborating rape victim’s testimony is relevant and admissible.). Again, the failure to make a meritless objection does not constitute ineffective assistance of counsel. Greene, 356 Ark. at 70, 146 S.W.3d at 880. McCulley argues in his third point on appeal that counsel was ineffective for failing to object to the admission of a drug-test report demonstrating that A.R. tested positive for amphetamines. The drug-test report was introduced into evidence to corroborate the testimony of both A.R. and Collette that A.R. became impaired and incapacitated after being given an orange drink on the night of the rape. Collette testified that she observed McCulley place a substance in A.R.’s orange drink, which Collette believed to be an 7  Cite as 2017 Ark. App. 313 amphetamine. The contents of the drug-test results were admitted through the testimony of the phlebotomist who collected the sample from A.R. and the medical-records custodian. According to McCulley, the report was inadmissible because the drug test had been conducted for medical reasons, and the test was presumptive because it had not been confirmed by a forensic laboratory. Medical records may be admissible under the business- records exception to the hearsay rule. Terry v. State, 309 Ark. 64, 69, 826 S.W.2d 817, 820 (1992); see also McClellan v. State, 81 Ark. App. 361, 365, 101 S.W.3d 864, 866 (2003). The alleged deficiencies of the drug-test results go to the weight of the evidence rather than its admissibility. Isbell v. State, 326 Ark. 17, 23, 931 S.W.2d 74, 78 (1996). Furthermore, even assuming that an objection from McCulley’s trial counsel would have succeeded in gaining the exclusion of the drug-test results, McCulley failed to demonstrate that he had been prejudiced by the alleged error. A petitioner asserting ineffective assistance of counsel must demonstrate that he or she was prejudiced by counsel’s errors. Walden, 2016 Ark. 306, at 2–3, 498 S.W.3d at 728–29. Prejudice is established by facts that create a reasonable probability that the finding of guilt was unreliable. Id. Here, based on the testimony of A.R., who described her impaired state after ingesting the orange drink, combined with the testimony of Collette, who observed McCulley putting a substance in A.R.’s drink and also described A.R.’s incapacity during the sexual assault, as well as the testimony of A.R.’s parents describing their daughter’s impaired behavior after she returned home, the exclusion of a drug test demonstrating that A.R. tested positive for amphetamines would not have rendered the guilty verdict unreliable. The circuit court did not clearly err when it rejected this ineffective-assistance-of-counsel claim. 8  Cite as 2017 Ark. App. 313 In a related argument, McCulley raises as his fourth point that trial counsel was ineffective by failing to object to the above-described testimony regarding A.R.’s incapacity due to ingesting amphetamines or another drug on the basis that it was hearsay and that the witnesses were not competent to render an opinion that A.R. was under the influence of drugs when she was raped. The record demonstrates that the testimony of A.R., Collette, and A.R.’s parents was based on their personal observations during the relevant time frame. Testimony of personal observations is admissible under Rules 602 and 701 of the Arkansas Rules of Evidence (2016) as long as the testimony is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony or the determination of a fact in issue. Marks v. State, 375 Ark. 265, 269–70, 289 S.W.3d 923, 926–27 (2008); Russell v. State, 306 Ark. 436, 441, 815 S.W.2d 929, 932 (1991); Miller v. State, 250 Ark. 199, 201–02, 464 S.W.2d 594, 596–97 (1971). The trial record clearly shows that the testimony met the requirements of admissibility under the Arkansas Rules of Evidence and that McCulley failed to allege sufficient facts demonstrating that an objection to the above- described testimony would have been meritorious. McCulley’s fifth ineffective-assistance-of-counsel claim includes the assertion that trial counsel failed to object to the description by the prosecutor and witnesses of the outbuilding where A.R. was raped as a “sex room.” McCulley maintains that such a reference was highly prejudicial in that it led the jury to conclude that the outbuilding was intended for sex-related activities. A.R. testified that she was raped in the outbuilding, where she had been handcuffed to bars hanging over the bed, where televisions continuously played pornography, and where a sign that read “sex instructions, first lessons free” was 9  Cite as 2017 Ark. App. 313 hanging on the wall. Collette testified that the outbuilding was used for sex and drugs, that straps were attached to the bars hanging over a queen-size bed, and that the televisions were used exclusively for viewing pornographic movies. Willbanks testified that when he entered the room pursuant to a search warrant, he observed pornography playing continuously and discovered several pornographic videotapes as well as handcuffs, sex toys, rope, and lubricants. In view of the above-described testimony, the description of the outbuilding as a “sex room” was apropos, and there is no demonstration that trial counsel’s failure to object to the term “sex room” was either deficient or prejudicial to the outcome of the trial. Walden, 2016 Ark. 306, at 2–3, 498 S.W.3d at 728–29. McCulley’s final ineffective-assistance-of-counsel claim asserts that counsel erroneously failed to object to testimony setting forth the titles of the various pornographic videos seized in the search. Evidence of the existence of pornographic videos corroborated the testimony of both the victim and Collette and was therefore relevant and admissible. Watson, 308 Ark. at 647, 826 S.W.2d at 284; Martin v. State, 2013 Ark. App. 110, at 7, 426 S.W.3d 515, 519 (pornographic photographs admissible in rape trial to corroborate testimony of victim). Again, in view of the evidence and testimony described above, McCulley fails to explain how referring to the videos by name rather than as “pornographic” or “sexually explicit” changed the outcome of his trial. Walden, 2016 Ark. 306, at 2–3, 498 S.W.3d at 728–29; see also Johnston v. State, 2014 Ark. 110, at 7, 431 S.W.3d 895, 899 (Even if evidence is erroneously admitted, we may declare the error harmless and affirm if the evidence of guilt is overwhelming.). The circuit court did not clearly err by rejecting these last two 10  Cite as 2017 Ark. App. 313 ineffective-assistance-of-counsel claims as insufficient to establish that the lack of an objection was either deficient or prejudicial. Walden, 2016 Ark. 306, at 2–3, 498 S.W.3d at 728–29. McCulley finally argues that the circuit court’s order contravened Rule 37.3(c) of the Arkansas Rules of Criminal Procedure because the court’s findings were conclusory and did not reflect how the court applied the ineffective-assistance-of-counsel standard. Rule 37.3(c) of the Arkansas Rules of Criminal Procedure states in pertinent part that after a hearing, “[t]he court shall determine the issues and make written findings of fact and conclusions of law with respect thereto.” See Scott v. State, 351 Ark. 619, 621, 96 S.W.3d 732, 732–33 (2003). Without exception, the Arkansas Supreme Court has held that this rule is mandatory and requires written findings. Id. Here, the circuit court held a hearing, reviewed the trial record, issued a letter setting out each of McCulley’s claims, applied the standard set forth in Strickland, and explained the reasons for denying each claim. In conjunction with the letter, the circuit court entered its order denying McCulley’s petition. The circuit court’s written findings as set out in its letter complied with Rule 37.3(c). Affirmed; motion denied. VIRDEN and GLOVER, JJ., agree. Troy Laurence McCulley, pro se appellant. Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee. 11 Cite as 2017 Ark. App. 313 12 

76 F.3d 372 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Lawrence DUKES, Plaintiff-Appellant,v.W.K. JONES; Alvin Newman, Defendants-Appellees. No. 95-7334. United States Court of Appeals, Fourth Circuit. Submitted Jan. 18, 1996.Decided Feb. 1, 1996. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Chief District Judge. (CA-95-232-5-F) Before HAMILTON and LUTTIG, Circuit Judges, and CHAPMAN, Senior Circuit Judge. Lawrence Dukes, Appellant Pro Se. E.D.N.C. AFFIRMED. PER CURIAM: 1 Appellant appeals from the district court's order denying relief on his 42 U.S.C. § 1983 (1988) complaint. We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Dukes v. Jones, No. CA-95-232-5-F (E.D.N.C. Aug. 9, 1995). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

Statute Limiting the President’s Authority to Supervise the Director of the Centers for Disease Control in the Distribution of an AIDS Pamphlet Statutory provision requiring the D irector o f the Centers for D isease Control to distribute an AIDS inform ation pam phlet to the public “without necessary clearance o f the content by any official, organization or office” violates the separation o f powers by unconstitutionally infringing upon the P resident’s authority to supervise the executive branch. March 11, 1988 M em o ran d u m O p in io n f o r t h e C ou n sel to the P r e s id e n t This memorandum responds to your request that this Office comment on the constitutionality of a provision found in H.J. Res. 395 (the fiscal 1988 Continu­ ing Resolution), which purports to require the Director of the Centers for Dis­ ease Control (“CDC”) to arrange for the mass mailing of AIDS information fliers, free from any executive branch supervision. For the reasons set forth below, we believe that this provision violates the separation of powers by unconstitution­ ally infringing upon the President’s authority to supervise the executive branch.1 I. Background The provision in question is found at page 22 of the “Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropria­ tion Act,” one of the appropriations measures subsumed within H.J. Res. 395. That provision requires “[t]hat the Director [of the CDC] shall cause to be dis­ tributed without necessary clearance o f the content by any official, organization or office, an AIDS mailer to every American household by June 30,1988, as ap­ proved and funded by the Congress in Public Law 100-71” (emphasis added).2 1 This memorandum is confined to the constitutional illegitimacy o f this provision’s restriction on the Presi­ dent’s exercise o f his supervisory powers. Accordingly, this memorandum does not address the constitutionality of the provision’s establishment of a June 30, 1988, deadline for the mailing o f AIDS fliers. See text o f provision, in­ fra, main text. 2 The provision’s legislative history suggests that congressional concern over White House delays in authoriz­ ing the mailing o f AIDS fliers by the CDC led to passage o f the provision under scrutiny in this memorandum. The Senate Appropriations Committee Report accompanying the fiscal 1988 Departments of Labor, Health and Human Services, and Education and Related Agencies Appropriations Bill stated* “The Committee is greatly concerned that the $20,000,000 provided by the Committee in the 1987 supplemental for an every-household mailing has been delayed by the White House The Committee believes that this is an important initiative as recommended by the 47  The CDC is a subordinate executive branch agency within the Public Health Service of the Department of Health and Human Services (“HHS”).3 On its face, the language highlighted above (“shall cause to be distributed w ithout. . . clear­ ance of the content by any official”) appears to preclude the President and his subordinates from overseeing the CDC ’s determination of the content of the AIDS mailer. This language thus prevents the President, either directly or through his subordinates, from supervising a subordinate executive branch official (the CDC Director) in the conduct of certain of his duties (viz., the dissemination of spec­ ified AIDS-related information to the public), trenching upon the President’s ex­ clusive constitutional authority to supervise the executive branch. See U.S. Const, art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the United States of America.”).4 II. Discussion A. The Nature o f the Unitary Executive As head of a unitary executive, the President controls all subordinate officers within the executive branch. The Constitution vests in the President of the United States “The executive Power,” which means the whole executive power. Because no one individual could personally carry out all executive functions, the Presi­ dent delegates many of these functions to his subordinates in the executive branch. But because the Constitution vests this power in him alone, it follows that he is solely responsible for supervising and directing the activities of his subordinates in carrying out executive functions. Any attempt by Congress to constrain the President’s authority to supervise and direct his subordinates in this respect, vi­ olates the Constitution. 2 (. . continued) CDC and the Department [of Health and H um an Services], and bill language has been included mandating this mailing by February 15, 1988.” S. Rep No 189, 100th Cong., 1st Sess. 70 (1987). (The mailing deadline date was changed to June 30,1988, in the final Continuing Resolution.) Reflecting this concern, the amended version o f the Labor and Related Agencies Appropriations Bill, reported by the Appropriations Committee and debated by the full Senate on October 13,1987, contained language requiring CDC to distribute AIDS mailers “without necessary clearance o f the content by any official, organization or office.” See 133 Cong Rec. 27,372 (1987). 3 The CDC was established by the Secretary of HHS pursuant to his authority under section 301 o f the Act of July 1, 1944, as amended, 58 Stat. 691 (1944) (codified at 42 U.S.C § 241). That section authorizes the Secretary o f HHS to “conduct in the [Public Health] Service . . . research, investigations, experiments, demonstrations, and studies relating to the causes, diagnosis, treatment, control, and prevention of physical and mental diseases and im­ pairments o f m an.” 42 U.S.C § 241(a). The CDC was organized as the “Communicable Disease Center” in the 1950s, and redesignated the CDC in 1970. S ee 35 Fed. Reg 10,797 (1970). The CDC was given full “agency sta­ tus” in 1973. See 38 Fed. Reg. 18,261(1973). The CDC was reorganized in 1980. See 45 Fed. Reg. 67,772 (1980). 4 Since the provision in question, on its face, precludes supervision o f the CDC Director “by any official, orga­ nization o r office,” the question arises w hether the President him self is an “official, organization or office” within the m eaning o f the statute. Even assuming th at the President himself is deemed to be neither an “official” (a strained interpretation, since the President certainly exercises “official” functions m carrying out his duties, such as the duty to “ lake Care that the Laws be faithfully executed”) nor an “organization” nor an “office,” the provision at issue is constitutionally impermissible, in that it effectively eviscerates the President’s ability to supervise a subordinate executive branch agency, the CDC. Since ev en under this construction the terms “official," “organization,” and “of- 48 B. Evidence o f Original Intent Evidence of the framers’ original intent demonstrates that the Constitution was designed to vest the whole executive power in the President.5 The framers pur­ posefully chose a unitary executive approach over a more traditional alternative. Influenced by the British model, in which ministers were held responsible for the acts of an unimpeachable monarch, most of the original states inhibited their gov­ ernors’ power by forcing them to act through, or in cooperation with, some form of privy council or constitutional cabinet. See The Federalist No. 70 (Alexander Hamilton) (Clinton Rossitered., 1961) (“The Federalist”). This device was care­ fully considered and deliberately rejected by the Federal Convention. The ques­ tion of the proper disposition of the executive power in the new Constitution pro­ voked a lengthy explication in several numbers of the The Federalist. The two main reasons for adopting a truly unitary executive in the new Con­ stitution were complementary and mutually reinforcing. On the one hand, unity obviously promotes dispatch and decisiveness, which is of far greater importance in the executive than in either of the other branches. As Hamilton pointed out: In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarring of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and cir­ cumspection, and serve to check excesses in the m ajority.. . . But no favorable circumstances palliate or atone for the disadvantages of dissention in the executive department. . . . They serve to em­ barrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. 4 ( . . . continued) flee” certainly encompass all officers o f the executive branch other than the President, the President would be pre­ cluded from assigning supervision o f the C D C ’s AIDS mailer activities to any of his subordinates Wholly apart from the fact that limitations on the President’s time would prevent him personally from overseeing the C D C ’s AIDS-related functions, such a preclusion would intolerably denude the President o f his constitutional prerogative to establish the means by which his supervisory authonty is to be exercised As this Office has opined, the mere fact that Congress places particular executive functions in specified executive branch agencies does not preclude the President from exercising general supervisory authority with regard to those functions through his agents, such as the Office o f Management and Budget See Proposed Executive Order Entitled "Federal Regulation”, 5 Op O L.C. 59, 63-64 (1981). Yet the statutory provision at issue would bar him from assigning supervision of the C D C ’s AIDS mailer to any other individual or entity within the executive branch. (For example, even assuming the President himself is not covered by this statute, he could not assign supervision of the CD C ’s AIDS mailer activi­ ties to his subordinates within the White House Office, since the term “office” would appear to apply to that entity. Buttressing this conclusion is the fact that the Senate’s concern about “White House delays” {see supra note 2) ap­ parently prompted adoption o f the statutory provision under scrutiny.) In sum, even if the President is not person­ ally covered, the effective result o f this statutory provision would be an infringement on the President’s supervi­ sory authonty vis-a-vis CDC’s AIDS mailer activities. 5 Our discussion of the Framers’ original intent with respect to the unitary executive does not purport to be ex­ haustive, but illustrative. For a fuller discussion of the issue, see Myers v United States, 272 U.S. 52 (1926). 49 The Federalist No. 70, at 426-27 (Alexander Hamilton). Even more important in Hamilton’s view, however, unity in the executive promotes accountability, which is the necessary flip side of decisiveness. As Hamilton pointed out, the more that the executive power is watered down and distributed among various persons, the easier it is for everyone concerned to avoid the blame for bad actions taken or for desirable actions left undone. At the Pennsylvania ratifying convention, James Wilson offered the same view of the advantages of a unitary executive: The next good quality that I remark is, that the executive author­ ity is one. . .. The executive power is better to be trusted when it has no screen. . . . We secure vigor. We well know what numer­ ous executives are. We know there is neither vigor, decision, nor responsibility, in them. Add to all this, that officer is placed high, and is possessed of power far from being contemptible, yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a cit­ izen, and in his public character by impeachment. 2 Elliot’s Debates 480. The Framers were under no illusions that vesting the executive power in a sin­ gle person would suffice to accomplish the goals they had in mind when they chose a unitary executive. They believed that the nature of popular government is such that legislative tyranny is the danger most to be feared: as Madison noted, legislatures inevitably seek to draw “all power into [their] impetuous vortex.” The Federalist No. 48, at 309 (James Madison). Alexander Hamilton explained this tendency as follows: “The representatives of the people, in a popular as­ sembly, seem sometimes to fancy that they are the people themselves, and be­ tray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity.” The Federalist No. 71, at 433. The constitutional remedies for what Madison called “this inconveniency” (The Federalist No. 51, at 322) (James Madison) included the devices of bicam­ eralism and the presidential veto. But human nature being what it is, the framers anticipated that the legislature would inevitably seek and find new devices for encroaching on the other branches and for trying to make those other branches its servants. The only way to prevent this from happening was to arm the Presi­ dent and encourage him to fight against it: [T]he great security against a gradual concentration of the sev­ eral powers in the same department consists in giving to those who administer each department the necessary constitutional means 50  ' and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition. The Federalist No. 51, at 321-322 (James Madison) (emphasis added). See also INS v. Chadha, 462 U.S. 919,951 (1983) (“The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to ac­ complish desirable objectives, must be resisted.”). The fundamental need for the President to have firm control over the conduct of his executive branch subordinates was recognized by the First Congress when it debated whether he had the inherent power to remove those subordinates from office. In the course of an extended debate in the House of Representatives, nu­ merous Congressmen articulated the reasons for leaving the President the means of remaining master in his own house. See 1 Annals of Cong. 462-584 (1789). For example, James Madison said: Vest [the power of removal] in the Senate jointly with the Presi­ dent, and you abolish at once that great principle of unity and re­ sponsibility in the Executive department . . . . If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved__ The pow­ ers relative to offices are partly Legislative and partly Executive. The Legislature creates the office, defines the powers, limits its duration, and annexes a compensation. This done, the Legislative power ceases. Id. at 499,581-82 (emphasis added). Mr. Boudinot of New Jersey described what would happen if the President could not unilaterally dismiss his subordinates: [W]hat a situation is the President then in, surrounded by officers with whom, by his situation, he is compelled to act, but in whom he can have no confidence, reversing the privilege given him by the Constitution, to prevent his having officers imposed upon him who do not meet his approbation? Id. at 469 (emphasis added). Mr. Sedgwick of Massachusetts said: Shall a man . . . be saddled upon the President, who has been ap­ pointed for no other purpose but to aid the President in perform­ ing certain duties? . . . If he is, where is the responsibility? Are you to look for it in the President, who has no control over the of­ 51  ficer, no power to remove him if he acts unfeelingly or unfaith­ fully?6 Id. at 522-23. In short, the Framers believed that the President should enjoy exclusive au­ thority to supervise his subordinates in carrying out executive functions, free from interference by the other branches. C. Case Law Precedents Supreme Court jurisprudence supports the proposition that the President should enjoy full power to supervise his subordinates in carrying out executive branch functions. For example, in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-66 (1803), Chief Justice Marshall stated: By the Constitution o f the United States, the President is in­ vested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in confor­ mity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The extent of the President’s right to control subordinate officers was specif­ ically considered by the Supreme Court in a trilogy of cases involving the Pres­ ident’s power to remove federal officials. In Myers v. United States, 272 U.S. 52 (1926), the Court ruled unconstitutional a statute that limited the President’s power to remove certain postmasters, and it declared, in dictum, that the repealed 6 Admittedly, this debate was not entirely one-sided. Some Members of Congress argued that the Senate must consent to the P resident’s removal of particular subordinates. For example, Mr. Jackson o f Georgia argued against allow ing officers o f the executive departments to be “mere creatures of the President,” on the ground that such a result would cause executive “ministers [to] obtrude upon us to govern and direct the measures of the Legislature, and to support the influence o f their master.” Id at 487 Mr. W hite of Virginia maintained that the President’s claim ed power to remove executive officers “ is a doctrine not to be learned in American Governments; is no part o f the Constitution o f the Union.” Id at 513. Nevertheless, the point of view articulated by Madison— that the Pres­ ident alone possesses the pow er to remove his subordinates within the executive branch— earned the day. In en­ acting legislation creating executive departments, the First Congress decided not to include provisions specifying the means by which executive officers could be removed from Office. 52 Tenure of Office Act had been unconstitutional as well.7 In reaching this con­ clusion, the Court considered a number of factors, including the constitutional debates, previous congressional practice, and the relationship between the power to appoint and the power to remove. In addition, the Court expressly based its decision on the conclusion that “Article II grants to the President the executive power of the Government, i.e., the general administrative control of those exe­ cuting the laws, including the power of appointment and removal of executive officers— a conclusion confirmed by his obligation to take care that the laws be faithfully executed.” 272 U.S. at 163-64. The Court based this conclusion on the following analysis of the President’s control over subordinate officials: The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contem­ plated in vesting general executive power in the President alone. Laws are often passed with specific provision for the adoption of regulations by a department or bureau head to make the law work­ able and effective. The ability and judgment manifested by the of­ ficial thus empowered, as well as his energy and stimulation of his subordinates, are subjects which the President must consider and supervise in his administrative control. Finding such officers to be negligent and inefficient, the President should have the power to remove them. Id. at 135. The Court confirmed this view of the President’s power over his subordinates within the executive branch in Humphrey’s Executor v. United States, 295 U.S. 602 (1935). In that case, the Court ruled that Congress could, consistent with the Constitution, immunize a Commissioner of the Federal Trade Commission from removal by the President at his pleasure. The Court reasoned that the FTC could not “be characterized as an arm or an eye of the executive. Its duties are per­ formed without executive leave and, in the contemplation of the statute, must be free from executive control.” Id. at 628. Specifically, the Court found that “the [Com m ission acts in part quasi-legislatively [in making investigations for the information of Congress] and in part quasi-judicially [in acting as a ‘master in chancery’] . . . . To the extent that it exercises any executive function . . . it does 7 The Tenure o f Office Act, 14 Slat. 430 (1867), had provided that all officers appointed by and with the con­ sent of the Senate should hold their offices until their successors had been appointed and approved, and that cer­ tain heads o f departments, including the Secretary o f War, should hold their offices during the term o f the Presi­ dent who appointed them, subject to removal by consent o f the Senate. This Act was the principal basis for the articles o f impeachment filed against President Andrew Johnson after he dismissed his Secretary o f W ar without the consent o f the Senate. 53 so in the discharge and effectuation of its quasi-legislative or quasi-judicial pow­ ers, or as an agency of the legislative or judicial departments of the government.” Id. (citation omitted). Myers was distinguished on the ground that “[t]he actual decision in the Myers case finds support in the theory that such an officer is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose sub­ ordinate and aid he is.” Id. at 627. The Court emphasized that the President re­ tained the right to direct the actions of his subordinates in carrying out executive branch functions, free from interference by another branch: The fundamental necessity of maintaining each of the three gen­ eral departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality. The sound application of a principle that makes one master in his own house precludes him from im­ posing his control in the house of another who is master there. Id. at 629—30. Thus, by narrowing Myers to cover only subordinates of the Pres­ ident carrying out purely executive functions, the Court linked the removal power even more clearly to the right o f the President to control purely executive offi­ cials. This principle was reaffirmed in Wiener v. United States, 357 U.S. 349 (1958). In that case, the Court held that the President did not have a constitutional right to remove a member of the W ar Claims Commission. The Court ruled that the Commission was essentially judicial in nature and that it was intended by Con­ gress to operate entirely free of the President’s control. Id. at 355-56. The Court expressly linked the right of removal with the right of the President to control a particular official: If, as one must take for granted, the War Claims Act precluded the President from influencing the Commission in passing on a particular claim, a fortiori must it be inferred that Congress did not wish to have hang over the Commission the Damocles’ sword of removal by the President for no reason other than that he pre­ ferred to have on that Commission men of his own choosing. Id. at 356. The Court thus emphasized that Humphrey’s Executor “drew a sharp line of cleavage between officials who were part of the Executive establishment and were thus removable by virtue of the President’s constitutional powers,” and those who were members of an independent body required to exercise its judg­ ment without hindrance from the Executive. Id. at 353. As the Court pointed out, it is the function of a governmental body that determines whether it is subject to 54 executive control. The “sharp differentiation [between those officials who are freely removable by virtue of the President’s inherent constitutional powers and those who are not] derives from the difference in functions between those who are part of the Executive establishment and those whose tasks require absolute freedom from Executive interference.” Id. These three cases clearly establish the President’s right to control the actions and duties of his subordinates within the executive branch. Myers explicitly set forth the President’s right to control as one of the bases for establishing the pres­ idential right to discharge subordinate officials. Humphrey’s Executor and Wiener, while limiting the President’s removal power, reinforced the link be­ tween the President’s right to control and his right to remove executive branch officials. Since, in the instant case, the Director of the CDC performs an execu­ tive function and is thus inescapably within the executive branch, the limitations imposed by Humphrey’s Executor and Wiener do not apply to presidential su­ pervision of the CDC Director. The President’s right to control the execution of the laws free from undue in­ terference from coordinate branches of government is supported by an additional line of authority. In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court confirmed that the Constitution protects the integrity of the executive branch decision-making process from interference by another branch through de­ mands for information about the executive’s deliberations. The Court recognized the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this con­ fidentiality is too plain to require further discussion. Human ex­ perience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appear­ ances and for their own interests to the detriment of the decision­ making process. Id. at 705. The Court specifically acknowledged that this right of confidentiality “can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential com­ munications has similar constitutional underpinings.” Id. at 705-06 (footnote omitted). The Court further noted that this protection “is fundamental to the op­ eration of Government and inextricably rooted in the separation of powers under the Constitution.” Id. at 708. This decision gives further content to the principle that the constitutional sep­ aration of powers requires the President to have effective control over the deci­ sion-making process within the executive branch. The constitutional prerogative recognized by the Court connects the President’s constitutional responsibility to take care that the laws be faithfully executed with the practical need for confi­ dentiality in executive branch deliberations. The Court has unmistakably declared 55 that the powers necessary to the implementation of the President’s authority over the executive branch cannot be abridged absent a compelling and specific need asserted by another branch.8 D. Implications fo r the Instant Case The preceding discussion delineating the President’s control of the unitary ex­ ecutive is directly applicable to the instant case. The Director of the CDC, as a subordinate executive branch officer within the Department of Health and Hu­ man Services, is subject to the complete supervision of the President with respect to the carrying out of executive functions. The congressionally-imposed re­ quirement that the Director of the CDC develop and distribute AIDS information to the general public entails the carrying out of a purely executive function. The dissemination of AIDS information to the public does not involve the judicial function of the adjudication o f cases, nor does it involve legislative activity.9 Rather, the dissemination of this information clearly involves “[interpreting a law enacted by Congress [the Continuing Resolution] to implement the legisla­ tive mandate” of furthering the public health and welfare by informing the pub­ lic about AIDS, which “plainly entail[s] execution of the law in constitutional terms.” Bowsher v. Synar, 478 U.S. 714, 732-33 (1986). In short, the President has complete constitutional authority to supervise the Director of the CDC (a sub­ ordinate executive branch officer) in connection with the dissemination of AIDS fliers to the general public (an executive function). Accordingly, by preventing the President from supervising the CDC Director in this regard, the Continuing Resolution provision at issue in this memorandum unconstitutionally infringes upon the President’s exercise o f that authority. The unconstitutional nature of the AIDS-related Continuing Resolution pro­ vision also may be established by reference to the Supreme Court’s discussion in Nixon of Congress’s constitutional inability to undercut the confidential na­ ture of internal executive branch deliberative processes. The fundamental prin­ ciple emerging from Nixon is that Congress cannot constitutionally require the President to render unto it information bearing on the precise manner in which 8 A lthough the Nixon case dealt with communications between the President and White House advisors, it seems clear that the principles enunciated therein extend at least to other important decision makers within the executive branch. See U nited States v. AT& T, 567 F.2d 121 (D.C. Cir. 1977). The Nixon Court specifically referred not sim­ ply to the President but to “ high Government officials and those who advise and assist them.” 418 U.S. at 705 Fur­ thermore, as the Supreme Court recognized in Barr v M atteo, 360 U S. 564 (1959), where it extended the privi­ lege against libel suits involving official utterances to executive officials below Cabinet rank: We do not think that the principle announced in Vilas can properly be restricted to executive officers o f cabinet rank, and in fact it never has been so restricted by the lower federal courts. The privilege is not a badge or emolument of exalted office, but an expression o f a policy designed to aid in the ef­ fective functioning o f government T he complexities and magnitude o f governmental activity have be­ com e so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are ex­ ercised by officers o f low er rank in th e executive hierarchy. 360 U.S. at 572-73 (footnote omitted). 9 N or can the C D C ’s task be viewed as quasi-legislative o r quasi-judicial, as those terms are used in Humphrey's Executor. 56  the President carries out his supervisory authority. It follows, a fortiori, that the Constitution precludes the Congress from undermining the executive decision­ making process by preventing the President from even exercising his supervisory authority over an executive agency, such as the CDC. If Congress is barred from unacceptably interfering in internal executive branch deliberations (Nixon), it surely is precluded from preventing the carrying out of such deliberations—the result that would obtain if Congress were permitted to bar presidential oversight of CDC actions. Our conclusion that Congress cannot constitutionally preclude presidential oversight of the CDC’s dissemination of AIDS mailers (or the CDC’s carrying out of any other executive function) is fully in keeping with principles previously enunciated by this Office. As this Office opined in commenting upon a law that purported to require a subordinate executive officer to provide specified infor­ mation directly to Congress, “ [t]he separation of powers requires that the Presi­ dent have ultimate control over subordinate officials who perform purely exec­ utive functions and assist him in the performance of his constitutional responsibilities. This power includes the right to supervise and review the work of such subordinate officials, including reports issued either to the public or to Congress.” Constitutionality of Statute Requiring Executive Agency to Report D i­ rectly to Congress, 6 Op. O.L.C. 632,633 (1982) (emphasis added). Accordingly, a legislative provision precluding presidential review of AIDS fliers drafted by the CDC for public dissemination violates the separation of powers. Consistent with the preceding analysis, it matters not at all that the informa­ tion in the AIDS fliers may be highly scientific in nature. The President’s super­ visory authority encompasses all of the activities of his executive branch subor­ dinates, whether those activities be technical or non-technical in nature.10 This necessarily follows from the fact that the Constitution vests “[t]he entire execu­ tive Power,” without subject matter limitation, in the President.11 Finally, we wish to stress the significance of the fundamental constitutional principles at stake here. The egregious manner in which the Continuing Resolu­ tion provision at issue offends the separation of powers cannot be overempha­ sized. Congress has no more right to prevent the President from supervising a subordinate (the CDC Director) in his performance of an executive task (the dis­ semination of AIDS-related information) than the President would have to pre­ clude federal judges from reviewing draft opinions prepared by their clerks— or than the federal judiciary would have to bar Members of Congress from review­ ing draft legislation and reports prepared by congressional staff. If the principle 10 Thus, for example, the President enjoys supervisory authority over Environmental Protection Agency delib­ erations in the area of environmental science, and over National Aeronautics and Space Administration delibera­ tions dealing with space science 11 Indeed, it would be an absurdity to suggest that the existence o f the President’s supervisory authonty should turn on the nature o f the executive duties being exercised. In enacting laws, Congress does not categonze the many different statutory duties it creates according to their “technical” or “ non-technical” nature. Moreover, there is no suggestion in the Constitution that the nature of the President’s responsibility to “take Care that the Laws be faith­ fully executed” (I) S Const art. II, § 3) is affected by the subject matter o f the law under consideration 57 of separation of powers means anything, it means that each one of the three co­ equal branches o f government must be free to supervise its subordinates in the performance of their official duties. Any effort by one branch to intrude upon and, indeed, eviscerate the supervisory prerogatives of another branch is patently offensive to the separation of powers. Such a destruction of the coequality of the branches would help bring about “a gradual concentration of the several powers in the same [offending] department”, thereby eliminating the means by which “ [ajmbition must be made to counteract ambition.” The Federalist No. 51, at 321-22 (James Madison). As such the provision at issue here is fundamentally inconsistent with our tripartite system of republican government. III. Conclusion For the foregoing reasons, we conclude that Congress cannot, consistent with the Constitution, preclude the President from reviewing, either personally or through subordinates, the content of AIDS mailers that are to be distributed to the public. Statutory language that purports to preclude the President from car­ rying out such supervision is unconstitutional on its face and should be regarded as a nullity. C h a r l e s J. C o o p e r Assistant Attorney General Office of Legal Counsel 58 

24 F.Supp.2d 789 (1998) NATIONAL CARTAGE CO., Plaintiff, v. CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS HEALTH AND WELFARE AND PENSION FUNDS, Defendant. No. Civ.A 97-40504. United States District Court, E.D. Michigan, Southern Division. September 29, 1998. *790 Peter T. Mooney, Winegarden, Shedd, Flint, MI, Sander H. Simen, Simen, Winkler, Flint, MI, Kendall B. Williams, Williams Firm, Grand Blanc, MI, for National Cartage Company, plaintiff. Paul M. Newcomer, Harrison Assoc., Bloomfield Hills, MI, Albert M. Madden, Central States Southeast and Southwest Areas Funds, Des Plaines, IL, for Central States Southeast and Southwest Areas Health and Welfare and Pension Funds, defendant. MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT GADOLA, District Judge. Before the court is a motion by defendant, Central States, Southeast and Southwest Areas Health and Welfare and Pension Funds, for summary judgment pursuant to Fed. R.Civ.P. 56. For the reasons set forth below, this court will deny defendant's motion in part, and grant it in part. Factual Background Defendant is a multi-employer benefits fund that provides retirement benefits to employees pursuant to collective bargaining agreements between employers and local unions affiliated with the International Brotherhood of Teamsters. Pursuant to a series of collective bargaining agreements, plaintiff, National Cartage Company, paid contributions to the fund on behalf of its employees. Plaintiff also agreed to be bound by a trust agreement that governs the allocation of benefits. The instant dispute concerns contributions paid between 1961 and 1994 on behalf of John Nash, the 100% stockholder of plaintiff. The plan provides that only "employees" are eligible to participate. Defendant made a determination that Nash had supervisory responsibilities while he was employed *791 by plaintiff. Accordingly, defendant determined that Nash was not entitled to participate in the fund. However, plaintiff had paid contributions on Nash's behalf for the full 33-year period that Nash owned the company. Nash originally applied for pension benefits in November of 1993. On July 24, 1996, defendant informed Nash that he was ineligible to participate in the plan. After defendant informed Nash in July of 1996 that he was not entitled to participate in the plan, Nash appealed that determination through various channels made available by defendant. None of these appeals were successful. During that same period, on August 6, 1996, plaintiff requested a refund of all contributions paid to the fund on behalf of Nash. Defendant indicated that it would not process such a request unless it received a signed statement from Nash waiving all claims to benefits under the plan. On July 21, 1997, Nash signed a statement in which he admitted that, as an owner, he was not a member of the bargaining unit and not able to participate in the plan. The statement further provided: When [my] records are corrected, as I have stated they should be, I understand and agree that I will not be entitled to any benefits from the Fund on account of the work I did for National Cartage Company during the time from October 1, 1961, to June 25, 1994, and I now state that I will not make any claim for any benefits on account of that work. (Def.'s Mot. for Summ. J., Ex. 12.) Plaintiff has been unable to recover the funds it contributed to the fund on Nash's behalf. Accordingly, on December 18, 1997 plaintiff filed the instant complaint seeking restitution of the funds. Discussion 1. Standard for summary judgment pursuant to Rule 56 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the non-moving party's case on which the non-moving party would bear the burden of proof at trial. Martin v. Ohio Turnpike Commission, 968 F.2d 606, 608 (6th Cir.1992); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, the court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the non-moving party. 60 Ivy Street Corporation v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). The court is not required or permitted, however, to judge the evidence or make findings of fact. Id. 822 F.2d at 1435-36. The moving party has the burden of showing conclusively that no genuine issue of material fact exists. Id. 822 F.2d at 1435. A fact is "material" for purposes of summary judgment where proof of that fact would have the effect of establishing or refuting an essential element of the cause of action or a defense advanced by the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). In other words, the disputed fact must be one which might affect outcome of the suit under the substantive law controlling the issue. Henson v. National Aeronautics and Space Administration, 14 F.3d 1143, 1148 (6th Cir.1994). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. Accordingly, where a reasonable jury could not find that the non-moving party is entitled to a verdict, there is no genuine issue for trial and summary judgment is appropriate. Feliciano v. City of Cleveland, 988 F.2d 649 (6th Cir. 1993). Once the moving party carries its initial burden of demonstrating that no genuine issues of material fact are in dispute, the burden shifts to the non-moving party to present specific facts to prove that there is a genuine issue for trial. To create a genuine issue of material fact, the non-moving party *792 must present more than just some evidence of a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986): There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the [non-moving party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted. (Citations omitted); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Consequently, the non-moving party must do more than raise some doubt as to the existence of a fact; the non-moving party must produce evidence that would be sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701 (6th Cir. 1991). 2. Analysis The contributions at issue in this case can be broken down into three distinct groups: (A) Contributions paid within the ten-year limitation period provided in the trust agreement (June 16, 1984 to June 16, 1994); (B) contributions paid between the effective date of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq., and the start of the ten-year limitation period (January 1, 1975 to June 16, 1984); and (C) contributions paid prior to the effective date of ERISA (October 1, 1961 to January 1, 1975). This court finds that defendant is not entitled to summary judgment with respect to groups (A) and (B), but it is entitled to summary judgment with respect to group (C). The analysis related to each of these groups will be discussed in turn. A. Contributions paid within the ten-year limitation period provided by the trust agreement (June 16, 1984 to June 16, 1994) As noted above, pursuant to a series of collective bargaining agreements between plaintiff and the International Brotherhood of Teamsters, plaintiff has participated in the defendant fund and agreed to be bound by the fund trust agreement. Article XIV, Section 1 of that trust agreement provides, in relevant part: The Trustees will issue a credit for contributions that have been billed to an Employer if (1) the related work history was reported by mistake of fact or law ... as determined by the Trustees and (2) the request for credit is received within ten years after the related work history was billed. If an employer no longer has an obligation to contribute to the Fund and has satisfied his withdrawal liability assessment, the Trustees will refund contributions paid by an Employer to the Trust if (1) such contributions were made by a mistake of fact or law ... as determined by the Trustees and (2) application therefor is received within ten years after payment of the contributions. An Employer shall not have a right to a refund of contributions made more than ten years prior to his application therefor. (Def.'s Mot. for Summ. J., Ex. 1 (emphasis added).) This court notes that the Trustees have already authorized a credit in the amount of $28,930, which represents the amount of contributions paid by plaintiff on behalf of Nash in the ten years prior to June 16, 1994, which is the date on which notice was given to defendant that mistaken contributions had been paid. However, plaintiff asserts that it is entitled to a cash refund in that amount because it satisfies the requirements for a refund under the trust agreement. In its reply brief related to the instant motion, defendant indicates that it: concedes that under the Trust Agreement, National is entitled to a cash refund of any mistaken contributions paid within ten years of its refund request since it has *793 withdrawn from [the fund] and has no withdrawal liability. (Def.'s Reply Br. at 3 (emphasis in original).) However, defendant maintains that a cash refund is still not appropriate in this case because Nash allegedly informed defendant in early 1998 that he was still considering a further appeal of defendant's denial of his application for pension benefits. Accordingly, defendant contends that authorizing a cash refund at this point would potentially subject defendant to multiple inconsistent obligations. Specifically, defendant asserts that it may be required to refund plaintiff's contributions on behalf of Nash in addition to paying Nash's pension benefits. In a supplemental pleading related to the instant motion, plaintiff attached an affidavit from Nash in which he, again, explicitly waives any and all claims related to any pension benefits from the defendant fund to which he may be entitled. (See Pl.'s Supp. Br. to Clarify Issues, Ex. A.) This waiver, combined with Nash's July 21, 1997 waiver of all claims for pension benefits from the fund, ought to be sufficient to allay any concerns defendant may have about the potential of multiple inconsistent obligations in this case. Accordingly, on the record currently before this court, defendant is unable to show as a matter of law that it is entitled to withhold the contributions paid by plaintiff on behalf of Nash during the ten-year limitation period provided by the trust agreement. Therefore, this court will deny defendant's motion for summary judgment as it relates to plaintiff's claims for a refund of those contributions. B. Contributions paid between the effective date of ERISA and the start of the ten-year limitation period (January 1, 1975 to June 16, 1994) Defendant argues that the ten-year limitation provision in the trust agreement bars any claim by plaintiff for a refund of any contributions paid prior to June 16, 1984, which date marks the commencement of the limitation period. Plaintiff contends that the ten-year limitation provision of the trust agreement is inequitable and unenforceable under ERISA. The parties agree that the standard governing whether the ten-year limitation provision is enforceable under ERISA is set forth in Whitworth Brothers Storage v. Central States, Southeast & Southwest Areas Pension Fund, 982 F.2d 1006 (6th Cir.1993). In that case, the court noted that "`ERISA is governed by trust, not contract, law.'" Id. 982 F.2d at 1017 (quoting Wells v. U.S. Steel & Carnegie Pension Fund, Inc., 950 F.2d 1244, 1250 (6th Cir.1991)). Accordingly, the mere fact that defendant included a ten-year limitation provision in the contract will not necessarily mean that the provision is enforceable. Accordingly, the Sixth Circuit noted that "the standard of review to be applied is whether [the] refund limitation rule is arbitrary and capricious as measured by equitable principles." Id. 982 F.2d at 1018. The court held that "a pension fund's refusal to refund contributions paid by mistake is arbitrary unless retention of the money is necessary to the financial soundness of the plan or justified by some other compelling reason." Id. 982 F.2d at 1017. Defendant admits that it has offered no actuarial data to support its contention that the ten-year limitation is necessary to the financial stability of the fund. However, defendant contends that such evidence is not necessary in this case because it is able to demonstrate that the limitation provision is equitable without resort to such proof. Defendant relies primarily on Jamail, Inc. v. Carpenters Dist. Council of Houston Pension & Welfare Trusts, 982 F.2d 299 (5th Cir.1992), which the Sixth Circuit cited with approval in Whitworth, 982 F.2d at 1014-15. In that case, the trustees of certain pension trust funds adopted a policy limiting refunds to only those contributions mistakenly paid in the six month period prior to the date the trustees were notified of the claim. The court in Jamail noted that, in contrast, the funds were afforded four years in which to bring an action against employers for inadequate payments. The court went on to declare that "[j]ustice demands a directly reciprocal limit; recovery of underpayments and refund of overpayments should be possible for an equal period." Jamail, 954 F.2d at 305. In this case, defendant notes that a tenyear *794 limitation applies under the trust agreement for both recovery of underpayments and refund of overpayments. Defendant contends that this limitation provision satisfies the standard set forth in Jamail, and therefore is enforceable as supported by a "compelling reason," beyond the financial soundness of the plan. However, this court rejects defendant's argument. First, defendant's reading of Jamail omits a significant portion of the court's reasoning in that case. After discussing the non-reciprocal limitation provisions, the court went on to note that: [t]he most egregious element of the refund policy, however, is its retroactive application. The Trust Funds had existed for years without a six month limit on refunds, and then the Trustees decided to adopt such a policy and apply it retroactively. Moreover, Jamail was not given notice of the new policy.... There may be situations in which the six month limitation could be a valid part of a refund policy. But not in this case, especially with its retroactive application. Id. 954 F.2d at 305-06. It is clear from this language that an integral part of the court's analysis was the fact that the refund policy was retroactively applied without sufficient notice. That situation is not present in this case, making Jamail's application to the facts of this case more questionable. Second, the analysis of the Sixth Circuit in Whitworth makes clear that the central consideration in these circumstances is the impact of the refund provision on the financial stability of the plan. The court cited a number of cases in which the primary concern was the financial stability of the fund. For example, the Whitworth court cited Dumac Forestry Serv., Inc. v. International Bhd. of Elec. Workers, 814 F.2d 79 (2d Cir.1987), in which the Second Circuit held that a remand was required to determine whether a three-year limitation on refunds was arbitrary and capricious. Specifically, the court noted that: [the] refund limitation rule must be evaluated in light of actuarial and other data considered by the trustees when they adopted the rule — data that were not part of the record before the district court. Id. 814 F.2d at 82-83. The Sixth Circuit also cited with approval Peckham v. Board of Trustees of Int'l Bhd. of Painters and Allied Trades Union and Indus. Nat'l Pension Fund, 719 F.2d 1063 (10th Cir.1983). In Peckham, the court held that it was an abuse of discretion for the trustees in that case to deny a refund. The court relied on the fact that the record contained "no evidence that the pension fund would be underfunded if the trustees returned plaintiffs' contributions." Id. 719 F.2d at 1066. The Whitworth court itself even went so far as to declare: We believe that unless a refund limitation policy is based on actuarial data and necessary to the pension fund's financial stability, it is not necessary for the protection of the property held under the trust agreement for the benefit of the employees, and is arbitrary and capricious. The fund is receiving a windfall and is unjustly enriched by refusing to return an employer's mistaken contributions when it no longer is obliged to pay pension benefits for the employee on whose behalf those contributions were made. Whitworth, 982 F.2d at 1017. While the Sixth Circuit did leave the door open for funds to show that retention of mistaken contributions can be justified by "some other compelling reason," given this authority, it would appear that this court's primary consideration ought to be the continued financial stability of the fund. In this case, there is no evidence in the record to support defendant's claim that the ten-year refund limitation policy is necessary to the continued financial soundness of the fund.[1] Accordingly, this court will deny defendant's motion for summary judgment as it relates to the claims for contributions paid between the effective date of ERISA and the beginning of the ten-year limitation period. *795 C. Contributions paid prior to the effective date of ERISA (October 1, 1961 to January 1, 1975) In Whitworth, the Sixth Circuit was careful to delineate between claims concerning pre-ERISA contributions and post-ERISA contributions. The court noted that any claim for pre-ERISA contributions amounts to a state law claim for breach of contract. See Whitworth, 982 F.2d at 1012. The Whitworth court, relying on Crews v. Central States, Southeast & Southwest Areas Pension Fund, 788 F.2d 332 (6th Cir.1986), held that claims for pre-ERISA contributions which fell outside the limitations period clearly set forth in the parties' contract were barred under the terms of the contract. That portion of the Whitworth opinion applies equally to the claims related to pre-ERISA contributions in this case. Accordingly, this court will grant defendant's motion for summary judgment related to plaintiff's claims for contributions paid on behalf of Nash prior to the effective date of ERISA. Conclusion This court having reviewed the submissions of the parties and being fully advised in the premises, IT IS HEREBY ORDERED that defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56 is DENIED in part and GRANTED in part in accordance with the terms set forth in this opinion. IT IS FURTHER ORDERED that the claims contained in plaintiff's complaint that relate to contributions paid to defendant on behalf of John Nash prior to January 1, 1975 are DISMISSED with prejudice. SO ORDERED. NOTES [1] This court also notes that the total of the contributions paid prior to the commencement of the limitation period, including those contributions paid prior to the effective date of ERISA, appears to be only around $14,000. (See Pl.'s Resp.Br., Ex. 13.) Therefore, it is not at all clear that retention of these funds would be necessary for the continued financial stability of the fund.

617 F.2d 1025 COLONIAL AMERICAN NATIONAL BANK, Appellee,v.Robert L. KOSNOSKI, Appellant. No. 78-1602. United States Court of Appeals,Fourth Circuit. Argued Oct. 3, 1979.Decided Feb. 11, 1980.Rehearing Denied May 5, 1980. Douglas D. Wilson, Roanoke, Va. (Gerald A. Dechow, Martin, Hopkins & Lemon, P. C., Roanoke, Va., on brief), for appellant. William R. Rakes, Roanoke, Va. (Bruce C. Stockburger, Gentry, Locke, Rakes & Moore, Roanoke, Va., on brief), for appellee. Before BRYAN, Senior Circuit Judge, and WINTER and MURNAGHAN, Circuit Judges. ALBERT V. BRYAN, Senior Circuit Judge: 1 Adjudged liable as the guarantor of two dishonored loans of the Colonial American National Bank at Roanoke, Virginia, Robert L. Kosnoski of West Virginia, appeals the judgment passed in a diversity action June 19, 1978, after a bench trial, by the Federal Court for the Western District of Virginia. In defense, he had pleaded complete release from the guaranty because of the bank's failure, upon his demand, after default in the loans, to sue all solvent parties (including sureties, guarantors and endorsers) who reside in Virginia. His stand rests on the exactions imposed upon the bank by the Code of Virginia:1 2 Surety may require creditor to sue. The surety, guarantor or endorser, or his committee or personal representative, of any person bound by any contract may, if a right of action has accrued thereon, require the creditor or his committee or personal representative, by notice in writing, to institute suit thereon, and if he be bound in a bond with a condition, or for the performance of some collateral undertaking, he shall also specify in such requirement the breach of the condition or undertaking for which he requires suit to be brought. 3 Va.Code § 49-25 (1974). 4 Effect of failure of creditor to sue. If such creditor, or his committee or personal representative, shall not, within fifteen days after such requirement, institute suit against every party to such contract who is resident in this State and not insolvent and prosecute the same with due diligence to judgment and by execution, he shall forfeit his right to demand of such surety, guarantor or endorser or his estate, and of his cosureties and their estates, the money due by any such contract for the payment of money, or the damages sustained by any breach of the collateral condition or undertaking specified as aforesaid; but the conditions, rights and remedies against the principal debtor shall remain unimpaired thereby. 5 Va.Code § 49-26 (1974). 6 There are no material factual differences here; decision hinges upon the construction of the statutes. Disagreeing with the trial judge's interpretation, we hold that under State law, Colonial should have sued all the other solvent, resident sureties, guarantors and endorsers, and failing to do so, it is precluded from enforcing Kosnoski's guaranty. 7 By a written contract of June 5, 1975, the bank agreed to lend Edward G. Frye and John Barbour Frye the sum of $372,272 on their note (Term Note), and to extend a $200,000 line of credit to the Frye Building Company to be used as working capital. The loan agreement was subscribed by Frye Building Company, a Virginia corporation, Edward G. Frye, John Barbour Frye, Ruth Townes Frye and Ernestine C. Frye. The agreement demanded that advances made under the line of credit be "personally guaranteed" by the borrowers (Edward G. Frye and John Barbour Frye) and their wives. The joinder of the wives in the loan papers is of peculiar import. It is notable because Ruth Townes Frye, wife of John Barbour Frye, was the only party who remained both a resident of Virginia and not insolvent at the time of default. 8 However, before consummation of the loans, the bank declined to advance $150,000 thereof, having learned meanwhile that Frye Building Company did not have perfect title to one parcel of the property tendered as security.2 During the summer of 1976, Frye Building Company approached the bank for release of the additional $150,000. To this end, Kosnoski, an investor in the Company, on August 12, 1976, executed a Guaranty Agreement with the bank and the Edward G. Frye, III, Construction Company, assuring payment of the retained $150,000. 9 In disbursing the additional funds, the bank prepared a document, signed by John Barbour Frye3 and Ernestine C. Frye, wife of Edward, consenting to the disbursement of the $150,000 by the bank in August 1976. Through the bank's error, the signature of Ruth Townes Frye, wife of John Barbour Frye, was never obtained. Nevertheless, the bank turned over the $150,000 upon receipt of the Guaranty Agreement. 10 On September 30, 1977, the bank wrote Edward and John Frye, their wives, the various corporate entities involved and Kosnoski, notifying them that the makers were in default on the Term Note and line of credit note, and demanding payment on or before October 12, 1977. Otherwise, the letter continued, "our attorneys will be instructed to proceed with collection of these obligations from the makers, guarantors or property securing said notes." 11 With the loans still in arrears, on December 8, 1977, suit was brought by the bank against Kosnoski alone. Through his attorneys, by letter of February 15, 1978, Kosnoski called upon the bank to sue each maker, guarantor and endorser of the two notes.4 Although this demand was received by the bank February 16, no suit was ever begun against any of these parties other than Kosnoski. 12 Since this omission continued for more than 15 days, Kosnoski pleaded it as freeing him, by virtue of Va. Code § 49-26, from responsibility under his guaranty. Undisputed is the fact, it will be recalled, that the only other "party" to the loan "contract who is resident in this State and not insolvent," Va. Code § 49-26, and thus within the embrace of the Virginia statute, is Ruth Townes Frye, the wife of John Barbour Frye. As previously noticed, she bound herself by executing the loan agreement. 13 Admitting that no case has been decided in Virginia specifically addressing the issue of whether the statute applied to a situation in which a guarantor demands that the creditor sue another surety, guarantor or endorser, the bank adverts to the decision of the Supreme Court of West Virginia in State v. Citizens' National Bank of Philippi, 114 W.Va. 338, 171 S.E. 810 (1933). Its discussion traces the Virginia law from its first enactment to the present, but glosses over the point determinative here. The original 1794 statute, 1 Rev. Code of Va. c. 116, § 6, p. 461 (1819) was amended to substantially its present form in 1849 to impose penalties against a creditor who refused "(to) institute suit against every party to such contract who is resident in this State and not insolvent . . . ." Va.Code § 49-26. (Accent added.) The insertion of the phrase "every party" would have been entirely unnecessary if the legislature had intended that the guarantor could only demand suit against the principal. We, therefore, cannot accept the West Virginia view, and find Kosnoski's claim of discharge is unimpeachable. 14 The order on appeal will be reversed, and the action remanded to the District Court with directions to enter judgment for the appellant with costs. 15 Vacated with Directions. MURNAGHAN, Circuit Judge, dissenting: 16 It concerns me to dissent, but my understanding of what the Virginia courts would do in this diversity action differs from that of my fellow panel members. The pertinent rules of suretyship and my perception of the proper reading of the applicable Virginia statutes lead me to a conclusion other than the one the majority has reached. 17 The case involved a term loan agreement, a loan guaranty agreement, and two notes thereunder, all executed on June 5, 1975. Those documents together provided for: (1) borrowings from Colonial American National Bank ("Bank") by Edward G. Frye, III ("Edward") and John Barbour Frye ("John") in the aggregate amount of $372,272, with $122,272 of the total amount to be relent by them to a partnership, Frye Building Company ("Partnership"), and $250,000 to be relent by them to a Virginia corporation also named Frye Building Company ("Virginia Corporation"); and (2) borrowings from the Bank by the Virginia Corporation in the amount of $200,000. 18 The term loan agreement covered in detail the terms of the first of the transactions, and also provided: 19 In addition to the above term loan, Bank will extend a $200,000 line of credit to the Company to be used as working capital at the best commercial rate then in effect plus 1%. . . . All advances made under this line of credit shall be personally guaranteed by Borrowers, Borrowers' wives, and the Partnership. Loans under this line of credit shall be secured by the deed of trust set forth in Exhibit B and governed by the terms of this Agreement. 20 The Borrowers were defined in the term loan agreement as Edward and John. The term loan agreement identified the parties thereto as Edward, John, the Partnership, the Virginia Corporation, and the Bank. The wives of Edward and John1 were not named as parties to the term loan agreement, the sole reference to them being found in the language quoted above requiring them to guarantee advances under the $200,000 line of credit to the Virginia Corporation. At the foot of the term loan agreement, following the signatures by or on behalf of the named parties, Ruth and Ernestine signed. No descriptive language appeared in the vicinity of their signatures. They signed in an order inverse to the order in which their respective husbands signed, thereby generating some subsequent confusion. 21 The term note covering the $372,272 advance identified John and Edward as the makers and borrowers and the Bank as the lender. Edward and John signed as makers. In its body the note provided for waiver of presentment, demand, notice of dishonor and all exemptions by the borrowers and "every endorser and guarantor." Appended at the foot of the note was a legend: "The undersigned hereby unconditionally guarantee the payment of the principal and interest of this note." Following the legend appeared signatures as guarantors by or on behalf of the Virginia Corporation, the Partnership ("By" Edward and John as partners), Ruth and Ernestine. 22 The loan guaranty agreement refers to obtention of credit from the Bank by the Virginia Corporation as an objective and bears signatures by or on behalf of the Partnership (for whom Edward signed as partner), John, Edward, Ruth, and Ernestine.2 23 The demand note in the amount of $200,000 was executed on behalf of the Virginia Corporation as borrower and maker. Following such execution there appeared the legend "The undersigned hereby unconditionally guarantee the payment of the principal and interest of this note," to which were subscribed the signatures as guarantors of Edward, John and the Partnership (by Edward and John as partners). Neither Ernestine nor Ruth signed the note as makers or as guarantors. The parties have not raised any point concerning the absence of the wives' signatures as guarantors presumably because the wives, as guarantors, did sign the related loan guaranty agreement, and also signed at the foot of the term loan agreement, which stated that they would personally guarantee advances to the Virginia Corporation. 24 Although the June 5, 1975 papers constituted evidence of loans aggregating $572,272, the Bank in fact held back $100,000 of the amount to be lent to Edward and John and $50,000 of the amount to be lent to the Virginia Corporation because of a title defect with respect to one property which was to be pledged as security. 25 A year later, to obtain advance by the Bank of the withheld $150,000, Edward G. Frye, III Construction Company ("West Virginia Corporation") and Robert L. Kosnoski on August 12, 1976 entered a guaranty agreement (dated for identification June 28, 1976) with the Bank in which the West Virginia Corporation was referred to as "Company." The recital in the guaranty agreement was: 26 Whereas, Kosnoski and Company desire to guarantee a portion of the indebtedness evidenced by a note dated June 5, 1975, in the amount of Three Hundred Seventy-two Thousand Two Hundred Seventy-two Dollars ($372,272.00) made by Edward G. Frye, III, and John Barbour Frye and a note dated June 5, 1975, in the amount of Two Hundred Thousand Dollars ($200,000.00) made by Frye Building Company, a Virginia corporation in order to induce Colonial American to advance monies to Frye Building Company, a Virginia corporation. 27 Pertinent provisions in the agreement read: 28 1. Kosnoski and Company guarantee the full and prompt payment to Colonial American of the indebtedness evidenced by the aforementioned notes dated June 5, 1975 and every balance and part thereof, whether now owing or due, and which may hereafter, from time to time, be owing or due, and howsoever heretofore or hereafter created or arising, to the extent of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00), and Kosnoski and Company also agree to pay in addition thereto, all costs, expenses and reasonable attorney's fees at any time paid or incurred endeavoring to collect said indebtedness and related to enforcing this instrument. 29 3. The granting of credit from time to time by Colonial American to Frye Building Company, a Virginia Corporation; Frye Building Company, a Virginia Partnership; Edward G. Frye, III; John Barbour Frye; or Edward G. Frye, III, Construction Company, a West Virginia Corporation, in excess of the amount of this guaranty without notice to Kosnoski or Company, is hereby authorized and shall in no way affect or impair this guaranty. 30 4. Authority and consent are hereby expressly given Colonial American from time to time, and without any notice to Kosnoski or Company, to give and make such extensions, renewals, indulgences, settlements and compromises as it may deem proper with respect to any of the indebtedness, liabilities, and obligations covered by the notes aforesaid and this guaranty, including the taking or releasing of security and surrendering of documents. 31 It is to be emphasized that the August 12, 1976 guaranty agreement made absolutely no reference to Ruth and Ernestine. Nor did either Ruth or Ernestine sign, or otherwise associate herself with, the guaranty agreement. At Kosnoski's request, John and Ernestine3 did execute a letter dated August 3, 1976 addressed to the Bank stating: 32 We realize you intend to complete the funding of two (2) loans evidenced by notes dated June 5, 1975 in the face amounts of $200,000.00 and $372,272.00. We recognize that our liability on those two notes will be increased by this funding and we consent to that increase in our liability. 33 We realize you are relying on this letter in making your advance and consent to that reliance. 34 When hard times came, and the borrowers on the two loans defaulted, of the principal borrowers and the guarantors, only Ruth was a solvent Virginia resident. Failure of the Bank to sue her after Kosnoski's request that it do so is the foundation of the majority's conclusion that the Virginia statute directed a forfeiture of the Bank's rights against Kosnoski. 35 At the outset of the discussion of applicable legal principles, it will be well to point to a terminology consideration which, if not recognized, could lead to imprecision or confusion. The parties have designated the two wives as "guarantors." In this dissenting opinion will be found frequent references to the law of suretyship. There are indeed differences between a guarantor and a surety which may on occasion have significance. They relate, primarily, however, to whether, insofar as the obligation to the creditor is concerned, the liability is primary, usually joint with that of the debtor,4 or only secondary, with a condition precedent to liability the failure of the debtor to perform.5 The actual nature of the relationship, not the nomenclature of the parties, is what controls.6 For our purposes, the distinction is of limited significance for, in most aspects of the matter, we deal with a factual situation in which the condition precedent to a guarantor's liability, default by the debtors, had occurred.7 Thereafter the terms "guarantor" and "surety" become synonymous, and interchangeable.8 36 It is an accepted principle of suretyship that there are two distinct contractual relationships, one between the creditor and the borrower, usually referred to as the principal, the other between the creditor and the person9 who agrees that the obligation from the principal to the creditor shall be performed and who undertakes to perform if the principal does not. Bourne v. Board of Supervisors of Henrico County, 161 Va. 678, 684, 172 S.E. 245, 247 (1934) approves and applies the following language: 37 Generally a guaranty relates to the payment of a sum of money or the collectability thereof, . . . Being a collateral engagement for the performance of the undertaking of another, it imports the existence of two different obligations, one being that of the principal debtor and the other that of the guarantor. If there is no obligation on the part of the principal, there is none on the guarantor. But the debtor is not a party to the guaranty, and the guarantor is not a party to the principal obligation. The guaranty is a separate and independent contract, involving duties and imposing responsibilities very different from those created by the original contract to which it is collateral. The fact that both contracts are written on the same paper or instrument does not affect their separate nature. 38 The separate nature status of the guaranty contract has been acknowledged recently in American Industrial Corp. v. First & Merchants Nat'l Bank, 216 Va. 396, 398, 219 S.E.2d 673, 675 (1975) (". . . a guaranty is a separate, collateral and secondary undertaking to answer for the debt of another in event of his default."). Judge Bryan, in a case arising under Virginia law has stated: "The stubborn fact is that the surety met the completion or performance costs without reference to Zoby's separate and several liability therefor." Zoby v. United States, 364 F.2d 216, 219 (4th Cir. 1966).10 While it is customary for the two related contractual undertakings to be coalesced in the same instrument, such an arrangement is by no means necessary. The two separate contracts may be executed at different times. Stearns, op. cit. n. 7, § 2.1, p. 8. 39 In addition to the two contracts between (a) the principal debtor and the creditor and (b) the creditor and the surety, there is a third contract, one of indemnification, between the principal debtor and the surety, under which full reimbursement for all amounts paid by the surety is required. E. g. Dickenson v. Charles, 173 Va. 393, 400, 4 S.E.2d 351, 353 (1939) ("There is an implied contract of indemnity between the principal and his surety, which obliges the former to reimburse the latter who has paid his debt;"); Aetna Casualty & Surety Co. v. Whaley, 173 Va. 11, 15, 3 S.E.2d 395, 396 (1939) ("The surety who pays the debt has a right of action against the principal on an implied contract for exoneration.") 40 Where a suretyship arrangement exists there may, of course, as in the present case, be more than one person who has obliged himself or herself as surety. Most frequently, where there are several sureties their relationship inter sese is one of cosuretyship. There is a presumption that, when two or more persons are sureties on the same instrument they are cosureties. Stearns op. cit. n. 7, § 11.20, p. 486. The presumption operates even though the several sureties are bound by different instruments executed at different times and without the knowledge of each other. 74 Am.Jur.2d (Suretyship § 6), p. 14; Restatement Security § 144, Comment a. Cf. Harrison v. Lane, 5 Leigh (32 Va.) 414, 418, 27 Am.Dec. 607, 609 (1834) ("If the sureties in the second bond were bound for the same thing for which the sureties in the first bond were bound, they would be liable for contribution, although their engagement were made at a subsequent time by a different instrument, and even without the knowledge of the first bond"); Rosenbaum v. Goodman, 78 Va. 121, 127 (1883). Several sureties may be cosureties where bound for different amounts if a final solution is a sharing of the burden. Id.11 41 Cosureties are equally bound to answer for the same duty of the principal and, between themselves, should share any loss caused by the default of the principal. Restatement Security § 144. Inter sese, the obligations of cosureties are limited to contribution by each of his proportionate share of the principal's defaulted indebtedness. Simpson, op. cit. n. 4, § 46, pp. 198, 204. Cf. Houston v. Bain, 170 Va. 378, 389, 196 S.E. 657, 662 (1938); Aetna Casualty & Surety Co. v. Whaley, 173 Va. 11, 15, 35 S.E.2d 395, 397 (1939). Such right of contribution "is based solely on the implied promise growing out of the equitable relations which the sureties, as jointly bound, bear to each other, and not upon the written contract by which they became sureties." Mann v. Bradshaw's Adm'r, 136 Va. 351, 377, 118 S.E. 326, 334 (1923). Payment by one cosurety of more than his proportionate share is a necessary prerequisite to his proceeding for contribution against his other cosureties. Young v. Bowen, 131 Va. 401, 407, 108 S.E. 866, 868 (1921). 42 Contrasted with cosuretyship is the relationship of subsuretyship, in which one surety is entitled to have another surety or sureties bear the entire burden of the principal's default. Restatement Security §§ 144 and 145. As Comment a to § 145 points out: 43 Where there are two sureties, the usual relation is cosuretyship, but by agreement between them or because of the equities of the situation, one of them as between themselves, may be liable for the entire loss caused by the default of the principal and hence not a cosurety. Where this is true, there are two interlocking tripartite relationships. The creditor has two sureties for his principal, but between the sureties one of them is a principal and the other a surety, that is, the former rather than the latter should perform. The former is a surety as to the principal debtor but is a principal as to the other surety. In view of the dual position of the former, he is called the principal surety. The surety to whom the principal surety is in the relation of principal is the subsurety. 44 The principal surety is the one who has the whole duty of performance. Restatement Security § 145. "As to the subsurety, each of the other obligors is a principal, and each owes a duty to reimburse him, if he is required to pay." Simpson, op. cit. n. 4, § 12, p. 15.12 To establish that subsuretyship exists, usually the person claiming subsurety status must have expressly conditioned his undertaking "on nonperformance by the principal and the other sureties " (Emphasis supplied). Simpson, op. cit. n. 4, § 12, p. 14. 45 With respect to the problem with which we are here presented, the correct designation of the several sureties is important. It can hardly be questioned that the relationship is one of cosuretyship, the more customary one. Kosnoski and the West Virginia Corporation had made absolutely no undertaking to be responsible for the obligations of the original cosureties (Edward, John, the Partnership, the Virginia Corporation,13 Ernestine and Ruth). Nor have they made nonperformance by the original cosureties a condition of their undertaking.14 To the contrary, their August 12, 1976 joint guarantee runs only to the obligations as principal debtors of Edward, John and the Virginia Corporation. Edward, John and the Virginia Corporation are the only principals to which the guarantee of Kosnoski and the West Virginia Corporation pertains. Nowhere appears an undertaking by those who became cosureties on June 5, 1975 to indemnify Kosnoski or the West Virginia Corporation.15 No June 5, 1975 cosurety gave any indication that, as between them, he would accept entire responsibility and indemnify the others, or, conversely, seek indemnification. "No one incurs a liability to pay a debt or perform a duty for another unless he expressly agrees to be so bound, for the law does not create relations of this kind by mere implication." Stearns, op. cit. n. 7, § 2.2. p. 9. 46 Consequently, even without the application of the presumption of cosuretyship, status of subsuretyship for Kosnoski and the West Virginia Corporation is entirely negatived. The presumption only fortifies the already inevitable conclusion. There is absolutely no foundation for a determination that, as between the first tier cosureties and the second tier there was a relationship of principal and subsurety. Kosnoski had no contractual basis for calling on any of the first tier cosureties to make him whole for any amount paid out by him by reason of the default of his principals (Edward, John and the Virginia Corporation). His rights against the cosureties were rights of pro rata contribution growing out of the status of cosuretyship, not rights of full reimbursement provided by contract. Rights of full reimbursement would depend on a contractual relationship between Kosnoski and the original cosureties, and no such contract was entered.16 47 In short, while temporally there were two tiers of sureties, in all other respects they were coalesced into a single group of cosureties. As a consequence, no one of them had a right to seek from the others payment of anything more than his or her proportionate share of the amount of any loss to the Bank by virtue of a default by any of the principals (here Edward, John and the Virginia Corporation). 48 In resumee, in a relationship such as the one here presented there are four separate and distinct contracts: 49 (a) The express contract between the principal debtor and the creditor, in which the undertaking is to pay the entire indebtedness; 50 (b) The express contract between the surety and the creditor, in which the undertaking again is to pay the entire indebtedness; 51 (c) The implied contract of indemnification between the principal debtor and the surety, in which the undertaking to reimburse once again relates to the entire indebtedness; and 52 (d) The implied contract of contribution between the cosureties, in which the undertakings are only to pay pro rata shares of the entire indebtedness. 53 If this were a subsuretyship situation, we could speak of a fifth contract, between principal surety and subsurety, but it would, in fact, be but a variant of the contract classified under the heading (c). With respect to it, the principal surety would be the principal debtor, and the subsurety the surety. Of course, in that situation, once again the entire indebtedness would be covered. 54 When these considerations are appreciated, it becomes evident that the Virginia statute created no responsibility on the part of the Bank, as creditor, on demand of one cosurety, to sue another cosurety. The interrelated statutory provisions found at Va.Code §§ 49-25 and 49-26 contemplate only the creation of a right in the surety to require the creditor to sue the surety's principal. Section 49-25 creates the right in "(t)he surety, guarantor or endorser . . . of any person bound by any contract" to "require the creditor . . . to institute suit thereon."17 One cosurety is simply not the surety of another cosurety. To a cosurety, the only person bound on any contract to whom he or she stands in the relationship of surety, guarantor or endorser is the principal debtor. 55 In the instant situation, as cosureties, Kosnoski and the West Virginia Corporation were sureties of the principals, i.e., Edward, John and the Virginia Corporation. They were not, however, sureties of their fellow cosureties, Ruth, in particular. The contracts by which those principals were bound were the one creating the obligation to pay the Bank $372,272 in the case of Edward and John and the one creating the obligation to pay the Bank $200,000 in the case of the Virginia Corporation. Those contracts were separate and distinct from the contracts of guaranty between the Bank and the cosureties obliging them to make good any loss resulting from default by the principal debtors. The principal debtors, qua principal debtors, were not bound by such guaranty contracts.18 The guaranty contracts, therefore, did not fall within the statutory reference to any contract on which a principal is bound. 56 The right to require suit under § 49-25 is the right to require the creditor to institute suit on the very contract by which the principal is bound. It says nothing about suit on a collateral agreement, not directly involving the principal, made between the creditor and the surety or sureties. Section 49-26, which creates the forfeiture for failure to bring suit, speaks in terms of suit "against every party to such contract." The language "such contract" must have an antecedent and obviously refers to the contract described in § 49-25, i. e., the contract binding the principal debtor. 57 The cosurety is simply not a party to that contract,19 and, therefore, not within the statutory description of "every party to such contract." It is, therefore, impossible to read the statutes as creating the right in one cosurety to require the creditor to bring suit against another cosurety, on pain for failure to do so of losing any right of recovery against the cosurety making the requirement. 58 The reason why the statute would not seek to achieve such a result is evident. The cosurety only has a claim for contribution against another cosurety in the amount of his proportionate share of the amount of the indebtedness not repaid by the debtor to the creditor. The amount which would be recoverable from the cosurety could, therefore, only be a fraction of the entire indebtedness. It would be extremely unreasonable for a statute to contemplate discharge of the entire indebtedness for failure to institute suit against someone who, vis-a-vis the person making the demand on the creditor to sue, would only be liable for a portion thereof. The Virginia legislature could hardly have contemplated discharging Kosnoski's $150,000 aggregate guaranty because the Bank failed to sue Ruth, whose maximum contribution exposure to Kosnoski was $23,810.20 59 The inappropriateness of applying the statute to the facts of this case is highlighted if we consider what the situation would have been had one of the original cosureties, Ruth, for example, called upon the Bank, as creditor, to sue her cosurety, Ernestine, or her cosurety Kosnoski. The guaranty agreement made by Kosnoski was clearly separate and distinct from the June 1975 instruments creating the primary obligations. The guarantees of the first tier of cosureties, Ernestine and Ruth in particular, while annexed at the foot of those documents, also created separate and distinct obligations from the primary indebtednesses themselves. No cosurety was a "person bound" by the contracts creating the indebtednesses to the Bank. They were bound by their separate and distinct guaranty agreements. That the statute did not extend, by its terms, to such separate and distinct contracts is obvious. 60 The majority rests its decision principally on the duty imposed on the creditor, by Va.Code § 49-26, once a surety has required that suit be brought, to institute suit "against every party to such contract who is resident in this State and not insolvent." The statutory language manifestly deals with the situation where there are multiple principals, as is the case here with the $373,272 term note of which both Edward and John were makers. Both of them, if Virginia residents and solvent, would have had to have been sued to comply with the "every party" requirement. However, the language "every party to such contract" means just what it says; it does not mean "every party" to another contract or other contracts which happen to be spelled out in the same set of papers as "such contract" (the contract by which the principal or principals are bound).21 61 Kosnoski happened to be a non-resident of Virginia, and had already been sued by the Bank when his demand was made. Suppose, however, a demand that suit be filed made under the statute by a resident cosurety before Kosnoski himself had been sued. Not a party to the agreement creating the indebtedness from the principal to the creditor, such cosurety would, nevertheless, on the approach taken by the majority, be among the group described in the statute as "every party to such contract." So the creditor would have to be careful to sue the requiring cosurety himself, as well as the principal and other cosureties, or else be met by a claim that the cosurety who demanded that suit be brought was relieved of his obligation. Cf. Moore v. Peterson, 64 Iowa 423, 20 N.W. 744 (1884), where the surety's demand that suit be brought was deemed defective because it did not call for himself to be sued. 62 Further circumstances can be imagined to demonstrate the error in the majority's reading of "every party to such contract." Suppose a single document covering separate loans to numerous different individuals. A bank might so contract with all the members of an amateur baseball team or of a fraternal society, in circumstances where liability would be individual and several, not joint. A surety for one of the borrowers could hardly, under the statute, escape liability if the bank, following demand, sued only the one borrower who was in default, instead of suing also all the other nondelinquent borrowers, and any sureties for them. 63 The relationship of Ruth and Kosnoski was not one of subsuretyship. Only if it had been, however, could the result have been as the majority has concluded. Because in a subsuretyship situation Ruth would be Kosnoski's principal, she would have had to have been sued, or the statutory forfeiture would have operated.22 The application of the statute would make sense, for Ruth would, as principal surety to Kosnoski's subsurety, have indemnified him with respect to the entire liability. I submit that it may have been an unexpressed, yet erroneous assumption of subsuretyship between Ruth and Kosnoski which led my colleagues on the panel into what I perceive to be error.23 64 The result I would reach purely from the plain and unambiguous language of the Virginia statutes and principles of suretyship is supported by additional considerations: 65 1. The West Virginia case of State v. Citizens' National Bank of Philippi, 114 W.Va. 338, 343-44, 171 S.E. 810, 812 (1933) concluded that the substantially identical West Virginia statute did not apply to require the creditor to bring suit against a cosurety. The decision in the absence of direct Virginia authority is particularly apposite, for it follows Virginia authorities under the Virginia statute, which was the predecessor of the West Virginia enactment. The West Virginia Supreme Court of Appeals held: 66 It is therefore readily seen that this court follows the trail of the decisions made by the courts in Virginia. So we feel constrained to hold that the position taken by the state as to the interpretation of this statute is correct and that it is limited to the protection of the sureties against any infringements of rights which the creditor or the sureties may have against the principal debtor; or, in other words, the statute was not designed to give protection to a surety against another surety. 67 The Virginia cases cited in Philippi had emphasized that §§ 49-25 and 49-26 were concerned solely with protection of the equity of the surety "against his principal." There, as here, the fact that the cosureties were not principals so far as the demanding cosurety was concerned compelled the conclusion that the statute did not apply.24 The Philippi decision, therefore, constitutes substantial authority as to the result which judges in a state court familiar with local circumstances (presumably quite similar in West Virginia and in its parent state, the Commonwealth of Virginia) have heretofore reached and would reach again in a diversity action like the present one. The result, unless it is clearly wrong to the point that we can say it would not be adhered to by a state court independently considering the matter, should be followed.25 68 2. Virginia Code § 49-26 in so many words creates a forfeiture. The Virginia courts have displayed a dislike for forfeitures and restricted relief which would lead to one. Pence v. Tidewater Townsite Corp., 127 Va. 447, 103 S.E. 694 (1920). 69 With respect to this very statute, the Virginia court has followed that course. In Davis' Administrator v. Snead, 74 Va. (33 Gratt.) 705 (1880), the notice called for in what is now § 49-25 was given, not to the creditor himself but to a court-appointed receiver. Although the receiver clearly stood in the shoes of the creditor, the court avoided application of the statute and the consequent forfeiture which would result by determining that the notice did not comply with the statute which called for notice to the creditor or, in the event of his death, to his personal representative. The court explained the grounds for its decision: "The reason is obvious. The statute is very stringent in its operation.26 70 For those reasons, I would affirm. 1 Both sections of the statute, Va.Code §§ 49-25 and -26, were amended in 1979, but the changes have no impact on this case 2 The bank disbursed only $272,000 of the term loan and $150,000 on the line of credit 3 Edward G. Frye was no longer associated with John Barbour Frye at this point 4 In passing, mention is made of the bank's argument that this notice was not in compliance with the Virginia statute because it was not directed to the bank but, instead, to its attorneys. However, in answer to his pretrial request for admissions, the bank conceded that "Plaintiff had received Defendant counsel's letter of February 15, 1978." Further, in the trial court's opinion was a finding that "the defendant made a written request" of the bank to "institute suit against all parties who made, guaranteed or endorsed the original notes." 1 Edward's wife was Ernestine C. Frye ("Ernestine"); John's wife was Ruth Townes Frye ("Ruth") 2 Actually the name appearing is "Carol C. Frye", presumably a variant of Ernestine C. Frye 3 Ernestine being the wife of Edward, manifestly there was a mixup, with the intention having been that John's wife, Ruth, rather than Ernestine, the wife of Edward, sign. The significance of the August 3, 1976 letter is not, for our purposes, affected by the confusion of names 4 In which case, the relationship is one of suretyship. Simpson, Handbook on the Law of Suretyship (1950) § 14, p. 16. See Piedmont Guano & Mfg. Co. v. Morris, 86 Va. 941, 944-45, 11 S.E. 883, 884 (1890); Phoenix Ins. Co. v. Lester Bros., Inc., 203 Va. 802, 807, 127 S.E.2d 432, 436 (1962) 5 Then the relationship is one of guaranty. Id. Cf. Cobb v. Vaughan & Co., 141 Va. 100, 108, 126 S.E. 77, 81 (1925) 6 B. F. Goodrich Rubber Co., Inc. v. Fisch, 141 Va. 261, 267, 127 S.E. 187, 188-89 (1925) 7 There is nothing in the June 5, 1975 term loan agreement, loan guaranty agreement and notes to intimate an intention of those designated as "guarantors" to do more than obligate themselves to pay if, but only if, the borrowers, Edward, John and the Virginia Corporation were to default. An "unconditional" guaranty signifies that, as a guaranty, it is subject to no conditions, not that the condition precedent of default by the debtor, which is essential to its nature as a guaranty in the first place is eliminated. See Ives v. Williams, 143 Va. 855, 859, 129 S.E. 675, 676 (1925) ("The guaranty . . . is unquestionably an absolute guaranty. . . . (T)he performance of that act is guaranteed by Herbert without any condition of any character being annexed to it. . . . Immediately upon the failure of Ives to perform his contract . . ., there has been failure of performance of the act which Herbert has guaranteed should be performed, and his liability for the failure to perform arises at once and unconditionally. An absolute guaranty is . . . one by which the guarantor unconditionally promises payment or performance of the contract on default of the principal debtor . . ."). Otherwise, the commonly employed phraseology "unconditional guaranty" would have no meaning. It would constitute a total contradiction in terms. See Stearns, The Law of Suretyship (James L. Elder 5th ed., 1951), § 4.5, p. 64: "Guaranties may also be classified as absolute and conditional. An absolute guaranty is an unconditional undertaking on the part of the guarantor that he will pay the debt or perform the obligation immediately upon the debtor's default." (Emphasis supplied) The Bank's counsel was responsible for preparing the papers, and presumably chose the word "guarantor" with an eye to its exact legal meaning, especially since the alternative "surety" would have provided, in theory at least, greater protection for the Bank. See Restatement, Contracts §§ 234, 235(b); Amick v. Baugh, 66 Wash.2d 298, 304, 402 P.2d 342, 346 (1965). The August 3, 1976 letter of John and Ernestine does refer to their liability on the two notes, but a guarantor's conditional liability would as much meet the description as would a true surety's unconditional liability. 8 Restatement, Security § 83, Comment g (1941). Stearns, op. cit. n. 7, § 1.1, p. 1: "Suretyship may be defined as a contractual relation whereby one person engages to be answerable for the debt of another. Within this broad definition fall contracts of guarantors and indorsers, as well as those of sureties in the restricted sense." Simpson, op. cit. n. 4, § 14, p. 16: "Since in most cases the legal consequences of suretyship and guaranty are the same, in this book the word surety will be used in the broad sense to include both surety and guarantor. Where the fact that a collateral promisor's undertaking is conditioned upon the principal's default becomes important to liability, the word guarantor will be used." 9 Designated the surety. Stearns, op. cit. n. 7, § 1.4, p. 3 10 Stearns, op. cit. n. 7, § 4.1, p. 59: "Since the contract of guaranty is collateral, a primary or principal obligation must exist to which it is secondary, as without a principal debt there can be no guaranty. Each contract is separate despite the fact that both may be written on the same instrument." Id. § 1.1, p. 1: "The contract of all three (a guarantor, an indorser and a surety in the restricted, non-combining sense), however, is accessory to the contract of the principal debtor. . . . It is of the essence of the surety's obligation that there be a subsisting valid obligation of a principal debtor." Simpson, op. cit. n. 4, § 6, p. 10: "Thus a contract of guaranty is an obligation in form and substance to answer for another's default. It is collateral, secondary and expressly conditioned upon breach by the principal debtor. The debtor is not a party to the guaranty, and the guarantor is not a party to the principal obligation. Although the same consideration (of detriment to the promisee creditor) may support both the promise of the guarantor and of the principal debtor, yet they are independent obligations." 11 Claybrook v. Scott, 1 Va.Dec. 316, 319 (1878): "The right to contribution is not affected by the co-securities being bound jointly or severally; or by the same or different instruments; or at the same or different times; or for the same or different amounts, except that when the amounts are different, a co-security cannot be required to contribute beyond the sum for which he was bound, nor does it matter whether the co-securities were aware of their being such." 12 If there are two or more sureties, they are cosureties, rather than in the principal surety/subsurety relationship, in the absence of agreement or stipulation to the contrary or of duties or equities imposing the principal liability on one of them. Restatement Security § 146 13 It is confusing that Edward, John and the Virginia Corporation each is both principal debtor and cosurety. The reason, of course, is that there were two loans. On one Edward and John were principal debtors and the Virginia Corporation a cosurety. On the other the Virginia Corporation was the principal debtor and Edward and John cosureties. Ernestine and Ruth were simply cosureties for both loans 14 Contrast Harrison v. Lane, 5 Leigh (32 Va.) 414, 418, 27 Am. Dec. 607, 609 (1834), where the second set of sureties bound themselves "only as the sureties in the first bond should fail to make good." 15 There was a dispute at the trial over whether the August 3, 1976 letter from John and Ernestine to the Bank, acknowledging that advance of the $150,000 theretofore withheld would increase their liability on the two notes, was obtained at Kosnoski's insistence or at the insistence of the Bank. If we assume for present purposes that Kosnoski insisted on the letter, it still did nothing to establish any relationship between those who signed it and Kosnoski. It concerned only the relationship between the Bank and those who subscribed to it. Furthermore, were it, for sake of argument, deemed to create a subsuretyship relationship, the relationship would exist only between Kosnoski and those who signed it, John and Ernestine. There is nothing in the record to suggest that non-signature by Ruth was conscious on her part, an element of a scheme to mislead Kosnoski into believing she was entering a subsuretyship arrangement with him. So, however the August 3, 1976 letter is viewed, it created no subsuretyship between Ruth, as principal, and Kosnoski, as subsurety Kosnoski also has contended that the Bank's failure to obtain Ruth's signature, despite his claimed insistence on having her bound, was a reason independent of Va.Code § 49-26 for relieving him of his guaranty undertaking to the Bank. The district court gave the contention short shrift. The judge found that the letter of August 3, 1976 was procured for the benefit of its addressee, the Bank, and not for the benefit of Kosnoski. The evidence was in conflict and the finding was not clearly erroneous. Furthermore, even if Kosnoski was the one insisting on the undertaking, it was totally superfluous, and of no operative effect. Ruth was liable as guarantor for the full amounts of $372,272 and $200,000 by reason of the June 5, 1975 documents. Another undertaking to like effect would have been repetitive and would have accomplished nothing. The failure to obtain it, therefore, was of no consequence. 16 As a consequence, Kosnoski's maximum rights to recover against Edward and John extended to $100,000 under the loan on which they were the principal borrowers which was guaranteed to the extent of $100,000 by Kosnoski, but to only 2/7 of $50,000 or $14,286 under the loan to which, to the extent of $50,000, Kosnoski, the West Virginia Corporation, Edward, John, the Partnership, Ernestine, and Ruth were cosureties of the borrower, the Virginia Corporation. Similarly against the Virginia Corporation, Kosnoski's maximum right to recover was $50,000 plus 1/6 of $100,000 or $16,667. Kosnoski's maximum right of recovery against Ruth was $7,143 on the $200,000 loan (of which he had guaranteed $50,000) and $16,667 on the $372,272 loan (of which he had guaranteed $100,000), a total of $23,810 If the matter of extent of recovery against cosureties arose in equity, rather than at law, the proportions would be adjusted to eliminate from the denominator all insolvent or nonresident cosureties. Cooper v. Greenberg, 191 Va. 495, 501, 61 S.E.2d 875, 878-79 (1950). However, any adjustment would still leave at least two cosureties, Kosnoski and Ruth, so Ruth's obligation to Kosnoski could never equal the full aggregate amount of the two indebtednesses. 17 I.e., on the contract by which the surety's principal is bound 18 Edward's and John's liabilities under the guaranty were only as sureties for the Virginia Corporation with respect to the $200,000 loan, not as principal debtors. The Virginia Corporation's liability under the contract of guaranty similarly was exclusively as surety for Edward and John on the $372,272 loan 19 See n.10 supra. Bourne v. Board of Supervisors of Henrico County, supra, is precise on the point: " . . . the guarantor is not a party to the principal obligation." 20 Even less could the legislature have contemplated discharging, as to all the cosureties, including Edward, John, the Partnership, the Virginia Corporation, Ernestine and Ruth, their liabilities, as guarantors, for $372,272 and $200,000. Yet that would be the consequence of the majority's decision, for failure to comply with Kosnoski's request, if the statute indeed extended to him the right to require suit against his cosureties, would also, under § 49-26, lead to forfeiture of the Bank's right to recover from "his cosureties and their estates, the money due by any such contract." "The effect of failure to institute suit against every party to such contract who resides in this state and is not insolvent, after notice, is an absolute forfeiture of all claims against every surety upon the contract." Edmonson v. Potts' Administrator, 111 Va. 79, 82, 68 S.E. 254, 256 (1910) 21 The statute creates a trap by using the phrase "every party to such contract" in circumstances where the contract to which reference is intended, i.e., the contract between the creditor and the surety's principal, is intertwined, often in the same document, with the separate and distinct contract between the creditor and the surety himself. The abstruse principles of suretyship are apt to elude the reader of the statute, who reasonably concentrates on "every party," but pays insufficient attention, in circumstances of this nature, to "such contract." The majority are not the first to misread "such contract" as extending to the agreement between creditor and surety, rather than to the agreement between the creditor and the debtor, the principal of the surety. The court in Edmonson v. Potts' Administrator, 111 Va. 79, 68 S.E. 254 (1910) fell into precisely the same trap in a case in which a cosurety sought to compel the creditor to sue a fellow cosurety. The point apparently was never made to the court that the statute did not extend to such a demand to sue. The consequence of the misreading of the statute was but harmless error, however, for the court held that the communications on which the cosurety relied did not, in any event, constitute sufficient notice under the statute. The Edmonson opinion emphasizes that the only question decided was whether the notice was sufficient. So the case constitutes no authority contrary to the conclusion I have reached 22 In those circumstances, the subsurety agreement between Kosnoski and Ruth would relate to the guaranty arrangement by which Ruth bound herself to the Bank to remedy any default by the borrowers (Edward, John and the Virginia Corporation). Kosnoski could under § 49-25, as surety for Ruth, have called on the Bank to institute suit thereon (rather than on the contract between the Bank and the borrowers). The February 15, 1978 demand letter sent by Kosnoski's counsel to counsel for the Bank would, in such circumstances, have satisfied the statute's insistence that the demand specify that suit be sought on the contract binding the surety's principal, for the letter demanded that suit be instituted, not only against the borrowers, but against the guarantors as well The applicability of the statute would clearly have been intended by the Virginia legislature in such circumstances, since Kosnoski, as subsurety, would have at risk the entire $150,000 for which Ruth, as a principal under the subsuretyship arrangement, would have indemnified him (not merely the $23,810 which, as cosurety, Ruth, as an absolute maximum, might be liable to contribute to Kosnoski if he completely fulfilled his surety undertaking to the Bank). Kosnoski evidently would fall within the protective scope of the statute if there were delay in proceeding against Ruth, since the delay might deprive him of a reimbursement source for the entire $150,000. 23 Even if there had been a subsuretyship, however, it appears that, nevertheless, in the particular circumstances of this case, Kosnoski has waived his rights under §§ 49-25 and 49-26. His guaranty agreement of August 12, 1976 expressly consented to extensions, . . . indulgences, . . . and compromises by the Bank "with respect to any of the indebtedness, liabilities and obligations covered by the notes aforesaid and this guaranty." A decision by the Bank not to collect from Ruth by suit or otherwise would be an indulgence. Simpson, op. cit. n.4, § 42, p. 175. While we need not address the question of whether the benefit of the statute may be waived by contract, if it were necessary to do so, the answer is clear that a waiver is valid and enforceable. As held in J. R. Watkins Co. v. Fricks, 210 Ga. 83, 85, 78 S.E.2d 2, 4 (1953): The right created by the legislature, as embodied in § 103-205 of the Code of 1933, was established solely for the benefit of one who has become surety for another, and such surety may therefore waive it without injuring others and without affecting the public interest; and a waiver of the right, as thus established, does not in any way interfere with the preservation of public order or of good morals. See Annotation, Waiver by Surety Agreement of Benefit of Rule which Releases Surety in Event of Obligee's Failure to Comply with Surety's Demand that He Proceed Against Principal, 89 A.L.R. 570; Austad v. United States, 386 F.2d 147, 150 (9th Cir. 1967); United States v. Crain, 589 F.2d 996, 1001 (9th Cir. 1979); Commonwealth ex rel Department of Justice v. National Surety Co., 310 Pa. 108, 164 A. 788 (1932); Owensboro Savings Bank & Trust Co.'s Receiver v. Haynes, 143 Ky. 534, 136 S.W. 1004 (1911). Nor need we consider whether Kosnoski's delay in resorting to the statute after the Bank's notice on September 30, 1977 of default on both loans, until February 15, 1978, over two months after the Bank sued him on December 8, 1977, created any waiver or estoppel. The circumstances do suggest, however, that the demand that guarantors be sued was not made in fulfillment of the statutory purpose: namely, to protect a surety from having to stand by helplessly while someone else, who could minimize or eliminate the surety's secondary liability, wastes his assets. Wright's Administrator v. Stockton, 32 Va. (5 Leigh) 66, 68 (1834). Rather Kosnoski's action appears intended simply as a strategic ploy to set up a claim of release for noncompliance with the statute. 24 It may merit mention that the court in Philippi sensibly recognized the right of one cosurety, such as Kosnoski, to proceed in equity against other cosureties (as, for example, Ruth) to insure payment of their pro rata shares of the default of the principal debtor. See Simpson, op. cit. n. 4, § 46, p. 198. As the West Virginia court pointed out, the fact that the statute substantially identical with §§ 49-25 and 49-26 did not afford a right to the cosurety to compel the creditor to go after cosureties did not preclude the cosurety from himself pursuing in equity his remedy against other cosureties 25 Other authority on the point is non-existent as far as I have been able to discover. The district judge cited two cases which arguably might support Kosnoski's position. See Colonial American Nat'l Bank v. Kosnoski, 452 F.Supp. 135, 137 (W.D.Va.1978). The cases are ably distinguished by the district judge. There is an additional reason, over and beyond the critical differences in statutory language, why the cases afford no authority contrary to the position espoused in this dissenting opinion. Moore v. Peterson, 64 Iowa 423, 20 N.W. 744 (1884) and W. T. Rawleigh Co. v. Moore, 196 Ark. 1148, 121 S.W.2d 106 (1938), as well as the earlier Iowa case of Harriman v. Egbert, 36 Iowa 270 (1873), all concerned the adequacy of the demand by the surety to the creditor that suit be filed. Applying the principle that statutes in derogation of the common law are to be strictly construed, those cases refused to hold that the demanding surety was discharged from liability, because the demand had not been couched in terms of suing the other cosureties, as well as the principal. Such cases, whose results favored the creditor, are scant authority for the proposition Kosnoski here urges which would, if applied, cost the creditor Bank its rights against all the cosureties 26 Cf. Edmonson v. Potts' Administrator, 111 Va. 79, 82, 68 S.E. 254, 256 (1910), which reached a similar result on analogous facts. The interpretation given § 49-26 was very restricted. The court commented: "That section is very stringent in its terms."

166 F.3d 1220 1999 CJ C.A.R. 644 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Michael BATTEN, Petitioner-Appellant,v.Larry FIELDS; Attorney General of the State of Oklahoma,Respondents-Appellees. No. 98-6326. United States Court of Appeals, Tenth Circuit. Feb. 2, 1999. Before TACHA, McKAY, and MURPHY, Circuit Judges. 1 ORDER AND JUDGMENT* 2 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 3 The procedural history surrounding this appeal is important. On July 19, 1996, petitioner Michael S. Batten filed a pro se petition pursuant to 28 U.S.C. § 2254 challenging his 1992 Oklahoma convictions on constitutional grounds. On March 12, 1997, a magistrate judge issued a Report and Recommendation ("R & R"), recommending that Batten's petition be denied. Upon de novo review of those portions of the R & R objected to by Batten, the district court adopted the R & R and denied the petition on August 4, 1997. On July 31, 1998, almost one year later, Batten filed a notice of appeal.1 On August 19, 1998, this court issued a show-cause order, ordering the parties to respond to the following question: "Whether the [July 31, 1998] notice of appeal was timely filed 30 days after entry of the district court's August 4, 1997 Judgment or was it filed nearly 11 months late?" In response to this order, Batten filed in the district court a Motion for Exception to File Out-of-Time Appeal. The district court denied the motion on September 28, 1998, holding as follows: 4 Petitioner has filed a Motion for Exception to File Out-of-Time Appeal, requesting that this Court grant him permission to file a late appeal because he did not receive a copy of this Court's August 4, 1997, Judgment denying habeas relief until July 23, 1998. In support of his motion, he asserts that he notified the Court on September 9, 1997, of a change of address, and notified the Court on December 9, 1997, of a second change of address. 5 Pursuant to Fed. R.App. P. Rules 3 and 4(a)(1), an appeal must be filed within days of the date of entry of the judgment. In the instant case, this would have been October 3, 1997. Pursuant to Fed. R.App. P. Rule 4(a)(6), the Court may grant an extension of 14 days to file a notice of appeal if the petitioner did not receive notice of the entry of judgment within 21 days of its entry, and no party would be prejudiced. However, the petitioner also must have filed a motion within 180 days of judgment or within seven days of the receipt of the notice of judgment, whichever is earlier. Fed. R.App. P. Rule 4(a)(6). Petitioner acknowledges that he "first knew of the denial" on November 7, 1997. Thus, he had until the earliest date of November 14, 1997 (seven days from date he received notice of entry of judgment) or January 1, 1998 (180 days from the entry of judgment)2 to file the notice of intent to appeal. In the instant case, the earlier date is November 14, 1997. However, even assuming Petitioner did not receive notice of the judgment as contemplated by Rule 4(a)(6) until July 23, 1998 [the date Batten received an actual copy of the judgment denying habeas relief], the outer time limit of 180 days expired on January 1, 1998, and thus his Notice of Intent of Appeal, filed in this Court on August 5, 1998, and allegedly mailed on July 31, 1998, is untimely. Accordingly, Petitioner's motion requesting an out-of-time appeal is DENIED. 6 Finally, in response to the district court's order, Batten filed a pro se brief in this court on October 13, 1998, arguing both the merits of his underlying habeas appeal and the propriety of the district court's denial of his motion to file an out-of-time appeal. 7 In light of this procedural history, it is clear that this court lacks jurisdiction to review the district court's August 4, 1997, Judgment denying Batten's § 2254 petition. The thirty-day deadline for the timely filing of a notice of appeal under Fed. R.App. P. 4(a)(1) expired on September 3, 1997. Batten's notice of appeal was filed in the district court on July 31, 1998, many months beyond the thirty-day deadline. The "taking of an appeal within the prescribed time is mandatory and jurisdictional." Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). Furthermore, this court "lacks discretion to consider the merits of a case over which it is without jurisdiction." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379-80, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). Inasmuch as Batten did not file his notice of appeal until almost one year after the district court's Judgment in this case, this court is without jurisdiction over the merits of the denial of Batten's § 2254 petition. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994) (holding that pro se appellants must comply with the requirements of the Federal Rules of Appellate Procedure that govern all litigants). 8 This court's conclusion that it is without jurisdiction to review the merits of the denial of Batten's § 2254 petition does not end the inquiry. As noted above, Batten filed in the district court a motion for order granting an exception to file an out-of-time brief pursuant to Fed. R.App. P. 4(a)(6) on August 12, 1998. The district court denied Batten's Rule 4(a)(6) motion by written order on September 28, 1998. On October 13th, within thirty days of the entry of the district court order denying Batten's Rule 4(a)(6) motion, Batten filed a brief in this court which discusses the denial of the Rule 4(a)(6) motion. Treating that brief as the functional equivalent of a notice of appeal, see Smith v. Barry, 502 U.S. 244, 248-49, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992), this court has jurisdiction over the district court's September 28, 1998, Order denying Batten's Rule 4(a)(6) motion. Upon review of the parties' briefs and contentions on appeal and the district court's September 28th Order, this court finds no reversible error and affirms for substantially those reasons set out in the September 28th Order. 9 For those reasons set out above, Batten's appeal of the district court's August 4, 1997, denial of Batten's § 2254 petition is DISMISSED for lack of appellate jurisdiction. The district court's denial of Batten's Rule 4(a)(6) motion is AFFIRMED. ENTERED FOR THE COURT: * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3 1 Batten's notice of appeal was actually received in the district court on August 5, 1998. Nevertheless, because Batten "certified" that his notice of appeal was placed in the prison mail system on July 31st, the district court treated the notice of appeal as filed on the 31st. See Houston v. Lack, 487 U.S. 266, 275, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (holding that a pro se prisoner's notice of appeal is filed at the moment it is delivered to prison authorities for forwarding to the district court). It should be noted, however, that this distinction is irrelevant to the determination of this particular appeal 2 The district court erred in calculating the 180-day time frame from the filing of the judgment. The January 1, 1998, cut-off date adopted by the district court is only 150 days from the entry of the August 4, 1997, judgment. The appropriate cut-off date is January 31, 1998. Because Batten filed his motion for extension on August 12, 1998, well after the proper cut-off date, the district court's computational error is irrelevant to this court's disposition of this appeal

76 F.3d 358 37 U.S.P.Q.2d 1595 LIFESCAN, INC., Plaintiff-Appellant,v.HOME DIAGNOSTICS, INC., Defendant-Appellee. No. 94-1356. United States Court of Appeals,Federal Circuit. Feb. 2, 1996. Philip S. Johnson, Woodcock Washburn Kurtz Mackiewicz & Norris, Philadelphia, Pennsylvania, argued, for plaintiff-appellant. With him on the brief were Dianne B. Elderkin, Joseph Lucci, and Barbara L. Mullin. Of counsel was Lynn A. Malinoski. Ernest J. Beffel, Jr., Hancock, Rothert & Bunshoft, San Francisco, California, argued, for defendant-appellee. With him on the brief was Elizabeth C. Krivatsy. Of counsel was Mark A. Haynes, Haynes & Davis, Menlo Park, CA. Before NEWMAN, RADER, and BRYSON, Circuit Judges. PAULINE NEWMAN, Circuit Judge. 1 The United States District Court for the Northern District of California1 granted summary judgment that Home Diagnostics, Inc. (HDI) did not infringe United States Patent No. 5,049,487, owned by Lifescan, Inc. We affirm the judgment that there was not literal infringement, and reverse the grant of summary judgment of non-infringement under the doctrine of equivalents. That issue requires trial; we remand for that purpose. Summary Judgment 2 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to 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). We review the grant of summary judgment for correctness as to its premises and as to the law applied to undisputed facts. Scripps Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1570, 18 USPQ2d 1001, 1005 (Fed.Cir.1991). 3 In accordance with Markman v. Westview Instruments, Inc., 52 F.3d 967, 34 USPQ2d 1321 (Fed.Cir.) (en banc ), cert. granted, --- U.S. ----, 116 S.Ct. 40, 132 L.Ed.2d 921 (1995), infringement is determined by a two-step analysis. In the first step the claims are interpreted by the court, as a matter of law. In the second step the claims are applied to the accused device by the trier of fact. This procedure applies whether the issue is of literal infringement or infringement by equivalency. See Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 35 USPQ2d 1641 (Fed.Cir.1995) (en banc ). Thus the issue of infringement is amenable to summary judgment only when there is no genuine issue of material fact as to whether correctly interpreted claims read upon the accused device or method, literally or under the doctrine of equivalents. 4 On appeal we first give plenary review to the trial court's claim interpretation, and then determine whether, on the correct claim interpretation, summary judgment was appropriately granted. The Patented Invention 5 The invention of the '487 patent is a method of determining the amount of test material, such as glucose, in a fluid, such as blood, by a self-monitoring method. The principal users of such devices are persons with diabetes. Lifescan's patented system, trademarked "One Touch," is described as providing greater accuracy and convenience than prior self-monitoring systems. Lifescan states that its device was an immediate commercial success, and the basis of a new and growing business. 6 According to the preferred embodiment described in the '487 patent, a sample of blood is applied to one side of a test strip. The blood plasma penetrates through the test matrix by capillary action. The glucose in the blood reacts with a reagent in the matrix to form a dye during that passage. Red blood cells carried in the blood are filtered out by the matrix, thus avoiding distortion of the color of the dye that is formed. The amount of glucose in the blood is determined by measuring the reflectance at the other side of the strip, at a predetermined interval after the presence of fluid is detected on that side of the strip, and comparing it with the initial wet reflectance of the strip. This predetermined interval begins with a drop in strip reflectance, which indicates that the fluid has penetrated the strip. By this procedure the incubation period, during which the filtered blood is in contact with the test reagent, is timed automatically and the glucose determination is of increased precision. 7 The '487 specification explains that the initial comparison of the dry reflectance and the wet surface signals the start of the incubation period, and that the initial drop in reflectance results from penetration of the blood plasma through the matrix, whereby "there is exact synchronization of assay medium reaching the surface from which measurements are taken and initiation of the sequence of readings, with no requirement of activity by the user." The prosecution history explains that human error is eliminated by using the initial drop in reflectance to start the incubation period. Prior art methods of glucose measurement typically involved applying a sample of blood to a test strip containing a dye-forming reagent, waiting a specified time period, washing out the blood and blotting the strip dry, and then either comparing the color of the remaining dye to a color chart or inserting the strip into a reflectance meter. Lifescan's patented method eliminates the steps of removing the blood and drying the test strip, and is fully automatic. 8 In the HDI meters, as in the Lifescan invention, the sample of blood is applied to a test strip on one side of a matrix through which the blood plasma penetrates by capillary action. The glucose in the blood reacts with a dye-forming reagent during that passage. The amount of glucose present is determined by comparing the reflectance at the other side of the strip, at a predetermined interval after the fluid has penetrated the matrix, with the initial wet reflectance of the strip. Like the Lifescan method, the HDI method compares reflectance readings before and after the glucose in the blood has reacted with the dye-forming reagent in the matrix. However, in the HDI method the initial and final readings are not compared to each other, but to a dry reflectance that the district court found is determined at the factory and programmed into the meter.2 The meter then makes a comparison with the dry reflectance, and the incubation timing begins when the reflectance drops by a specified amount that indicates that the fluid has penetrated the matrix. In comparison, in the Lifescan invention the meter determines both the initial dry reflectance and the reflectance drop that indicates that the fluid has penetrated the matrix, thus beginning the incubation timing. Claim Construction 9 HDI's motion for summary judgment of noninfringement was concentrated on claim 1, as representative of the '487 claims: 10 1. A method of causing an analytical measurement to be made in a reflectance-reading device at the end of a predetermined time period after an analyte reacts with a reagent in a porous, reflectance-reading matrix located in said device, which comprises: 11 taking a first reflectance reading from a dry first surface of said porous matrix prior to application of a sample of body fluid suspected of containing said analyte to a second surface of said porous matrix from which said sample can travel to said first surface by capillary action and react with said reagent in said porous matrix if said analyte is present in said sample; 12 applying said sample to said second surface of said porous matrix; 13 taking an additional reflectance reading from said first surface after said sample is applied to said porous matrix;comparing said additional reflectance reading to said first reflectance reading; 14 initiating said predetermined time period upon a predetermined drop in reflectance sufficient to indicate that said sample has reached said first surface; and 15 taking a measurement reflectance reading at the end of said predetermined time period without having determined the time at which said sample was initially applied to said porous matrix. 16 The district court construed the claims as limited to a method wherein the initial measurement of the dry reflectance is taken on the same test strip just before the blood is applied, and not on a sample test strip whose reflectance is taken at the factory. The court held that although the HDI method functions in the same way as the claimed invention, the HDI device differs in that it "compare[s] the reflectance readings of the test strips, whether they are wet or dry, to a threshold reflectance reading which is programmed into the meter at the factory." 17 Lifescan states that there is no material difference between comparing two reflectance readings to each other, and comparing both readings to a third (threshold) reading that was previously taken at the factory. Thus Lifescan states that the district court erred in construing the claims, arguing that neither the '487 specification nor its prosecution history supports the district court's interpretation of the claims to exclude the possibility of infringement. Lifescan states that the reflectance reading taken at the factory constitutes "taking a first reflectance reading" as called for by claim 1, and that when this reading is compared with the additional reflectance reading taken by the HDI device after the blood sample has been applied, this literally constitutes "comparing said additional reflectance reading to said first reflectance reading," as the patent requires. Lifescan argues that direct comparison is not the only way of comparing values, and that HDI's method of comparing both reflectance readings to a factory-determined "standard" is the same as or equivalent to comparing them to the initial reading by the Lifescan meter. In both devices it is the amount of drop in reflectance that is measured, but in the HDI device both the initial "wet" reflectance after the plasma penetrates to the far side of the matrix, and the reflectance after the incubation period, are compared to the "standard" instead of directly to each other. 18 Lifescan argues that neither the specification nor the claims of the '487 patent requires that the reflectance readings be compared directly to each other, and that the district court erred in finding the claims to be so limited. Lifescan states that the district court improperly read into the claims the details of its preferred embodiment, although these details are not required by the specification, are not included in the claims, and are not required to preserve the validity of the claims. See E.I. DuPont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433, 7 USPQ2d 1129, 1131 (Fed.Cir.) (prohibiting reading limitations from the specification into the claims "wholly apart from any need to interpret what the patentee meant by particular words or phrases in the claim"), cert. denied, 488 U.S. 986, 109 S.Ct. 542, 102 L.Ed.2d 572 (1988); Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 867, 228 USPQ 90, 93 (Fed.Cir.1985) ("Generally, particular limitations or embodiments appearing in the specification will not be read into the claims."). Literal Infringement 19 Lifescan is correct that the claims do not include a limitation to how the reflectance readings are compared. Nor do the claims require that the reflectance readings be compared directly to each other instead of comparing each to a "standard" reflectance. However, the claims state that the dry and wet reflectances are taken from the same strip. Claim 1 states: "taking a first reflectance reading from a dry first surface of said porous matrix." 20 The district court held that the claims can not be literally infringed when the dry reflectance reading is not taken from the same test strip that is used in the test, but is measured in advance at the factory. We conclude that the district court correctly interpreted the claims. Thus by programming its reflectance meter with a predetermined dry reflectance, HDI did not literally infringe the '478 patent. We affirm the summary judgment that the claims are not literally infringed. Infringement by Equivalency 21 HDI's method of establishing a threshold dry reflectance was the only difference from the invention of the '487 claims. Lifescan argued that the methods are substantially the same, and that summary judgment of noninfringement under the doctrine of equivalents was improperly granted. Lifescan argues that it is immaterial whether the dry reflectance of the matrix is measured at the factory or after it is placed in the device, and that all of the other steps of the procedure are identical. 22 Lifescan proffered substantial evidence that HDI's taking of the predetermined dry reflectance reading and programming it into the meter is the equivalent of claim 1 "taking a first reflectance reading from a dry first surface of said porous matrix prior to application of a sample of body fluid." In both cases the dry reading provides the base by which it is determined when the fluid has penetrated the matrix. Lifescan states, and we agree, that a reasonable jury could have deemed it equivalent to determine the dry reflectance in advance, the meter then comparing the "before" reading, taken at the factory, with subsequent readings taken during use. Both methods first compare dry and wet reflectance measurements, and then compare the reflectance when the dye has incubated, based on identical timing. 23 On Lifescan's proffered evidence, a reasonable trier of fact could have found that the function/way/result test of equivalency is satisfied. Hilton Davis, 62 F.3d at 1518, 35 USPQ2d at 1645. When there is substantial evidence to support a factual conclusion, summary judgment to the contrary is improper. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("[S]ummary judgment will not lie ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.") HDI argues that a prior art reference to Tidd limits the range of available equivalency. Tidd describes a meter for use by visually impaired persons, which generates audible signals to indicate glucose levels in urine. Like the HDI device, Tidd starts the process by comparing strip reflectance readings with a pre-determined reference value, whereby the reflectance change serves to indicate that the strip is wet with urine. However, in Tidd the reflectance change is not related to penetration of fluid through a filtration matrix to the far side of the test strip, as in the HDI and Lifescan processes; it simply shows that the strip has become wet. While HDI argues that Tidd shows that its process is in the prior art, Lifescan responds that Tidd is merely cumulative of the art already before the examiner. 24 Tidd may be viewed as showing that HDI has simply replaced the initial step of the Lifescan process with a known interchangeable alternative, thus reinforcing Lifescan's position that the processes are equivalent. See Hilton Davis, 62 F.3d at 1519, 35 USPQ2d at 1645 (interchangeability known to persons reasonably skilled in the art is evidence of equivalency). The remaining steps of the Lifescan and HDI processes are the same. Thus the factual question is raised of the significance of Tidd as evidence that HDI is practicing the prior art, as HDI argues, or as evidence of equivalency. This aspect can not be decided as a matter of law, but must be weighed by the trier of fact, along with the other evidence of similarities and differences, in the course of determining whether the patented and the accused methods are substantially the same. The effect of Tidd, which was not discussed by the district court, can not be decided for the first time on the appellate record. 25 The summary judgment was improperly granted, and is reversed. We remand for determination of the factual issue of infringement in accordance with the doctrine of equivalents. 26 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 1 Lifescan, Inc. v. Home Diagnostics, Inc., No. 92-20811 SW (N.D.Cal. May 18, 1994) 2 Although in the confidential portions of their briefs the parties describe the operation of the accused device somewhat differently than did the district court, they do not challenge the district court's findings on this point

539 U.S. 937 Hillv.Hill et al. No. 02-10105 (02A949). Supreme Court of United States. June 16, 2003. 1 Appeal from the Sup. Ct. N. C. 2 Application for stay, addressed to JUSTICE STEVENS and referred to the Court, denied. Certiorari denied. Reported below: 356 N. C. 301, 570 S. E. 2d 507.

329 F.Supp.2d 1305 (2004) UNITED STATES of America v. Sylvester GRANT No. 3:03-CR-339-J-99MMH. United States District Court, M.D. Florida, August 12, 2004. *1306 Paul I. Perez, United States Attorney, Frank Merrill Talbot, II, Assistant United States Attorney, Bartow, FL, for the United States. Rosemary T. Cakmis, Assistant Federal Public Defender, Clyde M. Collins, Jr., Jacksonville, FL, for Defendant. ORDER ON BLAKELY ISSUES CORRIGAN, District Judge. This case is before the Court for the sentencing of defendant Sylvester Grant. *1307 I. Background Defendant pled guilty to one count of possessing a firearm after having been previously convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The government now asks that the Court apply USSG § 2K2.1(c)(1)(B) to crossover to the sentencing range under USSG § 2A1.3 (voluntary manslaughter) because a death resulted from defendant's use of the firearm. The government is requesting that the Court basically conduct a manslaughter trial at sentencing under the Guidelines, utilizing the lower standards for admissibility of evidence and the preponderance of the evidence burden traditionally used in Guidelines sentencing. If the Court found USSG § 2A1.3 applicable, it would result in an enhanced sentence under the Guidelines based on facts neither found by a jury nor admitted by defendant in his plea.[1] On June 24, 2004, the Supreme Court decided Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). On July 7, 2004, the Court requested briefing from the parties on what effect, if any, Blakely has on defendant's sentencing. The Court subsequently determined that a more general discussion of Blakely's impact on the United States Sentencing Guidelines beyond the circumstances of defendant's case would be helpful in determining how future sentencings should be handled. To this end, the Court invited the Federal Public Defender and United States Attorney to participate in the argument which the Court held on August 11, 2004. The Court incorporates that discussion by reference here and formalizes the announcement made on the record at the hearing. II. Discussion Although guidance from the Eleventh Circuit and the Supreme Court on Blakely's effect on the United States Sentencing Guidelines is forthcoming, the undersigned cannot further postpone sentencing hearings until my superiors decide this issue. Any court is loath to rule that an enactment of Congress is unconstitutional. This is especially true when the entire congressionally mandated federal sentencing scheme is at risk. Thus, I have searched diligently for a way to uphold the Guidelines in their entirety post-Blakely. However, I have come to a conclusion which I think is inescapable: The rule of constitutional law announced in Blakely does apply to the federal Sentencing Guidelines. I so hold. There have been a slew of Blakely opinions from other courts, district and appellate, which I have read and carefully considered. There is no need to replicate those scholarly efforts here. Instead, what follows is a summary of my holdings and how I intend to proceed until I receive appellate guidance: 1. The Supreme Court's decision in Blakely applies to the United States Sentencing Guidelines. See United States v. Booker, 375 F.3d 508, 513, 2004 WL 1535858, *4 (7th Cir.2004); United States v. Ameline, 376 F.3d 967 (9th Cir.2004); United States v. King, 328 F.Supp.2d 1276, ___, 2004 WL 1769148, *2 (M.D.Fla.2004) *1308 (Presnell, J.); United States v. Croxford, 324 F.Supp.2d 1230, 2004 WL 1521560, *1 (D.Utah July 7, 2004) ("Croxford I"); United States v. Croxford, 324 F.Supp.2d 1255 (D.Utah 2004) ("Croxford II"). 2. If the Guidelines would require a judge to enhance a sentence by finding facts beyond those "reflected in the jury verdict," the Guidelines are unconstitutional as applied. Blakely, ___ U.S. at ___, 124 S.Ct. at 2537 (emphasis removed). 3. In a case involving a plea agreement that does not waive Blakely rights or contain sufficient factual admissions to support applicable Guidelines enhancement provisions, the Guidelines are unconstitutional as applied. See Croxford I, at 1242, 2004 WL 1521560 at *9. 4. The Guidelines can be constitutionally applied when there is no judicial factfinding that increases the defendant's sentence beyond the range dictated by the facts found by the jury. See United States v. Thompson, 324 F.Supp.2d 1273, 1274 (D.Utah 2004); Booker, 375 F.3d 508, 515. Thus, if the judge does not enhance a sentence based on additional factual findings not made by the jury, either because the judge determines that no enhancements are applicable or a sought after enhancement is not proven,[2] the Guidelines may be constitutionally applied. 5. The Guidelines can be constitutionally applied when a plea agreement waives Blakely rights and allows the judge to determine enhancements under the Guidelines, or a plea agreement contains factual admissions which allow the judge to enhance under the Guidelines. Blakely, ___ U.S. at ___, 124 S.Ct. at 2541. 6. In a case where the Guidelines are inapplicable because they are unconstitutional as applied under Blakely, the Court, pursuant to 18 U.S.C. § 3553(b)(1),[3] will sentence the defendant under 18 U.S.C. § 3553(a). Under 18 U.S.C. § 3553(a), the Court's sentence is informed by the factors contained therein and by the Sentencing Guidelines, but is indeterminate so long as it does not exceed the statutory maximum or fall below the statutory minimum. Cf. United States v. Hammoud, 378 F.3d 426, 2004 WL 1730309, *1 (4th Cir.2004) (recommending that district courts in the Fourth Circuit announce an alternative sentence pursuant to 18 U.S.C. § 3553(a)). 7. Including sentencing enhancements under the Sentencing Guidelines in the indictment and attempting to prove them to the jury at trial is unauthorized and therefore unavailable.[4]Croxford I, at 1242-1245, 2004 WL 1521560 at *10-12; 18 U.S.C. § 3553(a); Fed.R.Crim.P. 32(i)(3)(B). 8. Empaneling a sentencing jury is not authorized by law and is therefore unavailable. Croxford I, at 1242-1245, 2004 WL 1521560 at *10-12; 18 U.S.C. § 3553(a); Fed.R.Crim.P. 32(i)(3)(B). *1309 9. The Court will conduct all sentencings under the Guidelines as before Blakely so that all Guidelines issues are addressed. The Court will also consider all issues relevant under 18 U.S.C. § 3553(a). If the Court can constitutionally apply the Guidelines, it will. If the Court determines at the sentencing hearing that the Guidelines cannot constitutionally be applied (because the Court is required to apply an enhancement prohibited by Blakely), the Court will impose an indeterminate sentence pursuant to 18 U.S.C. § 3553(a), and will also impose an alternative Guidelines sentence in the event the Guidelines are found to be constitutional after appellate review. 10. The undersigned will apply these principles on a case-by-case basis until I either achieve greater wisdom which causes me to reconsider or my superiors on the Eleventh Circuit or Supreme Court give me guidance. It is so ORDERED. NOTES [1] The probation officer concluded that USSG § 2K2.1(c)(1)(B) was inapplicable. The Florida State Attorney's Office for the Fourth Judicial Circuit did not prosecute the homicide based on the conclusion that the defendant acted in self-defense. As the Court was preparing to issue its written opinion, the government filed a notice withdrawing its request to apply the enhancement. The government's notice does not affect the Court's Blakely decision, which was announced at the hearing, and does not affect the impact of Blakely on the Court's other sentencings. [2] Thus, for example, if the government seeks an enhancement under the Guidelines, but the government is unable to prove the enhancement by a preponderance of the evidence, the Court will, of course, not enhance. And, if the enhancement is not in fact applied, there will be no Blakely problem with sentencing the defendant under the Guidelines. [3] Section 3553(b)(1) provides that "[i]n the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection [18 U.S.C. § 3553](a)(2)." [4] Of course, the Court does not have the authority to dictate to the government or the grand jury what it may include in an indictment. However, indictments containing allegations pertaining only to enhancements under the Guidelines will be subject to challenge by defendants via a motion to strike and it is my present intention not to allow the government to present strictly "Guidelines evidence" at trial.

643 F.Supp.2d 507 (2009) Theodore JENKINS, Plaintiff, v. NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, Defendant. No. 09 Civ. 499(CM). United States District Court, S.D. New York. July 7, 2009. *509 Theodore Jenkins, New York, NY, pro se. Jeffrey Scott Dantowitz, Office of Corporation Counsel NYC, New York, NY, for Defendant. ORDER GRANTING DEFENDANT'S MOTION TO DISMISS McMAHON, District Judge. FACTS In August 2007, Theodore Jenkins sought permanent housing from the New York City Department of Homeless Services ("DHS"). Jenkins underwent a psychiatric evaluation at the Bellevue Shelter on August 20, 2007. (Compl. Ex. A ("Greene Letter") 1). Jenkins was diagnosed with schizophrenia and placed in the Mental Health/Chemical Abuse ("MICA") program at the Fort Washington shelter. (Greene Letter 1). Jenkins is no longer in the shelter system and is now homeless. (Greene Letter 1). Jenkins brings this lawsuit seeking placement in the general shelter population. (Greene Letter 4). He claims that he is not schizophrenic. (Greene Letter 4). Although the record is not clear, it appears that Jenkins voluntarily left the shelter system because he did not want to be assigned to the MICA facility. (Compl. 3) ("Claimant declined the offer of transfer to another MICA facility"), (Greene Letter 1) ("Due to his dissatisfaction with this placement, he is no longer in the shelter system at all"). On June 9, 2008 Ashley Greene, an attorney with the Mental Hygiene Legal Services, wrote DHS on behalf of Jenkins, Greene indicated DHS would reconsider Jenkins' placement if he underwent a second psychiatric evaluation with the doctor of his choice. (Greene Letter 1). Jenkins objects to undergoing any new psychiatric evaluation, he demands to be admitted to the general shelter population, with the goal of obtaining permanent housing. (Greene Letter 1, 4). There is no evidence that Jenkins has submitted to a second psychiatric evaluation, or that DHS has reconsidered its diagnosis and assigned him to the general shelter population, Mr. Jenkins has been homeless since January 2008. (Compl. 2). On October 3, 2008, Mr. Jenkins filed a pro se complaint against DHS in this Court. (Compl. 1). The Defendant moved to dismiss the complaint on March 17, 2009, and the parties held an initial conference on March 20, 2009. Mr. Jenkins filed a response on March 23, 2009, and DHS replied on April 6, 2009. STANDARD OF REVIEW The Defendant moves to dismiss the complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), as well as a lack of subject matter jurisdiction on the Article 78 claim under Federal Rule of Civil Procedure 12(b)(1). Because Jenkins is a pro se party, his pleadings must be construed liberally and interpreted to make the strongest arguments they suggest. Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007). In liberally construing the plaintiffs pleadings the Court should make "reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal *510 training". Id. at 639 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)). In evaluating a 12(b)(6) motion, a complaint that only raises "the mere possibility of misconduct" does not establish that the plaintiff is entitled to relief. Ashcroft v. Iqbal, ___ U.S. ____, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). The plaintiff must establish that the allegations are pushed "across the line from conceivable to plausible". Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "Specific facts are not necessary" but the complaint must give the defendant fair notice of the plaintiff's claim. Erickson v. Pardus, 551 U.S. 89, 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). A pro se complaint should be treated more liberally than a complaint drafted by lawyers. Erickson, 551 U.S. at 89, 127 S.Ct. 2197. If a liberal reading of the pro se pleadings indicate a valid claim might be stated, and could be cured by better pleading, leave to amend the complaint should be granted. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000). However, this liberal interpretation "cannot be used to cure a complaint that consists merely of broad generalizations, sweeping castigations, and unfounded conclusions, but not specific facts from which an actual deprivation of constitutional rights may be inferred". Locicero, 419 F.Supp.2d at 525 (internal citations and quotations omitted). Therefore, if a liberal reading of a pro se complaint reveals a substantive lack of a cause of action, dismissal is appropriate. Cuoco, 222 F.3d at 112. In evaluating the 12(b)(1) motion, the Plaintiff must establish federal question jurisdiction pursuant to 28 U.S.C. § 1331 because the parties are not diverse. Federal question jurisdiction is most commonly exercised in cases in which federal legislation creates a cause of action. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). In addition, federal-question jurisdiction extends to cases "where the vindication of a right under state law necessarily turned on some construction of federal law." Dow, 478 U.S. at 808, 106 S.Ct. 3229 (quoting Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). ISSUES Is the fact that DHS is not a suable entity grounds for dismissal of the complaint? The Defendant argues that the DHS, as a City agency, has not been authorized as a suable entity under the New York City Charter. Mot. to Dismiss 13. The Defendant is "clearly correct" and "the overwhelming body of authority holds that [a city agency] is not a suable entity". Renelique v. Doe, No. 99 Civ. 10425, 2003 WL 23023771, at *6 (S.D.N.Y. Dec. 29, 2003); New York City Charter Ch. 17 § 396. However, the issue is whether this failure to plead the correct party is an example of an "inadvertent forfeiture of important rights because of [his] lack of legal training" that should be avoided by granting a pro se plaintiff leave to amend his complaint. Abbas, 480 F.3d at 639. Granting leave to amend the complaint to name the proper party should only be granted if the amended complaint would survive a motion to dismiss and the amendment would not be futile. Walker v. New York City Dep't of Corrections, No. 01 Civ. 1116, 2008 WL 4974425, at *7 (S.D.N.Y. Nov. 19, 2008). In arguing that a city agency is not suable, the Defendant cites to Renelique, in which the court dismissed a pro se case after finding that the Department of Corrections ("DOC")—the named defendant— *511 was not a suable entity. 2003 WL 23023771, at *7. However, Renelique does not stand for the proposition that a case should be dismissed with prejudice if the wrong municipal entity is sued. Although the court determined the DOC was not a suable entity, it evaluated the motion for summary judgment and the potential liability of the City as if it were named as the defendant. Id. at *6-7. Summary judgment dismissing the complaint was granted, not because the wrong entity was sued, but because there was no evidence of a City policy that caused the plaintiffs injury. Id. at *12-3. The court did not address the possibility of granting leave to amend the complaint to name the proper defendant, although in light of the court's ruling on the merit s, such an amendment would have been futile. In Walker v. New York City Department of Corrections, by contrast the court specifically addressed the failure of a pro se plaintiff to properly plead the City of New York and concluded that the plaintiff should be granted leave to amend the complaint to name the correct defendant unless granting leave to amend would be futile. No. 01 Civ. 1116, 2008 WL 4974425, at *7 (S.D.N.Y., Nov. 19, 2008). In Walker the plaintiff was acting pro se when she initially filed the complaint and named DOC as the defendant. 2008 WL 4974425, at *7. After filing the complaint Walker retained counsel and in response to DOC's motion to dismiss requested leave to amend the complaint and substitute the City of New York as the defendant. 2008 WL 4974425, at *7. In evaluating the motion the court noted that if the amended pleading would not survive a motion to dismiss it would be futile to grant leave to amend the complaint. Id. at *7 (citing Lucente v. IBM, 310 F.3d 243, 258 (2d Cir.2002)). In this case, although DHS is not a suable entity, it would be inappropriate to dismiss the complaint based solely on the technical defect of a pro se complaint[1]. Allowing Jenkins to amend his complaint to name the City of New York as the proper defendant would constitute a reasonable accommodation for a pro se plaintiff. However, as the court did in both Renelique and Walker this Court should evaluate whether or not granting leave to amend the complaint would be futile. In doing so the Court should evaluate the sufficiency of the Plaintiff's claims, assuming the City was properly named as the defendant. Has the Plaintiff stated a claim upon which relief can be granted? Jenkins' pleadings do not assert formal claims and are filled with disconnected facts and quotations from various federal statutes. The complaint, amplified by Jenkins' response to the motion, could be read to include the following claims: an Eighth Amendment claim of cruel and unusual punishment, a procedural due process claim for deprivation of a property interest, a procedural due process claim for deprivation of a liberty interest (also known as a "stigma-plus" claim), a claim under the Americans with Disabilities Act, a claim under the Fair Housing Act, and a challenge to DHS's diagnosis under Article 78 of the New York Civil Practice Law and Rules. Eighth Amendment Jenkins' complaint alleges, "Housing people permanently under these conditions amounts to `cruel and unusual treatment'". (Compl. 1). A liberal reading of this passage could suggest an Eighth Amendment claim of cruel and unusual punishment. However, because Jenkins was not being punished for a crime or civil *512 offense, he has no recourse under the Eighth Amendment. See Austin v. U.S., 509 U.S. 602, 609, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Although the Eighth Amendment has been occasionally described as protecting a right "to be free from cruel and unusual treatment," this description has occurred only in the context of prisoners claiming abuse at the hands of corrections officers. See eg. Moulier v. Moss, 40 Fed.Appx. 648 (2d Cir.2002) (emphasis added). The Supreme Court has held that the Eighth Amendment's protections apply only to criminal and certain civil punishment imposed by the government Austin, 509 U.S. at 609, 621, 113 S.Ct. 2801. The replacement of the word "punishment" with "treatment" in his complaint was not a mere technical error or stylistic choice by Jenkins, but accurately reflects that Jenkins has been charged with no crime or civil violation and subjected to no punishment. The Plaintiff has stated no claim for which relief could be granted under the Eighth Amendment. Due Process Clause of the Fourteenth Amendment A) Deprivation of Property The Plaintiff has no claim for deprivation of property without due process because he does not have a property right to placement in a particular type of shelter under New York law. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). The Supreme Court has ruled that procedural due process protection applies only to rights protected under state law. The procedural component of the Due Process Clause does not protect everything that might be described as a "benefit": "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire" and "more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Such entitlements are, "`of course, ... not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Town of Castle Rock v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). If state law gives government officials discretion to grant or deny a benefit, it is not a protected property interest protected by the Due Process Clause. Castle Rock, 545 U.S. at 756, 125 S.Ct. 2796. A string of cases dating back to 1979 establishes a general right to shelter in New York, rooted in the state's constitution. Callahan v. Carey, 307 A.D.2d 150, 762 N.Y.S.2d 349, 351 (1st Dept.2003). However, the right to shelter is not a "boundless ... entitlement" and may be subject to eligibility requirements and other limitations. Callahan, 762 N.Y.S.2d at 351. The implementing directive promulgated by the New York State Office of Temporary and Disability Assistance makes it clear that broad discretion is given to local authorities in assigning the homeless to shelters. 94 ADM-20(V)(D)(3). The directive explicitly states, "Homeless persons do not have the right to choose their own temporary placements." Id. Jenkins was assigned shelter through the established rules and procedures of DHS. He was, therefore, not deprived of any property protected under New York law. The Supreme Court has not recognized Plaintiffs assertion that the United States Constitution guarantees everyone a right to permanent housing. (Compl. 1), Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). Furthermore, *513 even if such a right had been recognized it would not be relevant to a procedural due process argument because state law, not the Constitution, is the source of protected rights. Castle Rock, 545 U.S. at 756, 125 S.Ct. 2796. B) Deprivation of Liberty—"Stigma Plus" Although Jenkins does not have a protected interest in assignment to a particular shelter, Defendant infers that Jenkins might be arguing that he has a liberty interest in protecting his reputation from stigmatization.[2] Mot. to Dismiss 8-9. However, because DHS has discretion in assignment of housing facilities, Jenkins cannot establish that he was subject to a state-imposed burden sufficient to satisfy a stigma-plus claim. Universal Sanitation Corp. v. Trade Waste Comm'n of New York, 940 F.Supp. 656, 662 (S.D.N.Y.1996). The Second Circuit has described the elements required for an allegation of stigmatization to rise to a constitutional claim; a "stigma plus" claim requires a plaintiff to allege (1) the utterance of a statement about her that is injurious to her reputation, that is capable of being proved false, and that he or she claims is false, and (2) some tangible and material state-imposed burden ... in addition to the stigmatizing statement. Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005). Jenkins' complaint, and the attached letter on his behalf, could be read to allege that a diagnosis of schizophrenia is a statement injurious to his reputation, is capable of being proven false and imposed upon him the burden of being denied entry to the a non-MICA shelter. Although DHS did not publicly disclose Jenkins' diagnosis, the potential for public disclosure is sufficient to meet the public disclosure requirement of a stigma-plus claim. Brandt v. Board of Co-op. Educational Services, 820 F.2d 41, 42-3 (2d Cir.1987). The Second Circuit found, in Donato v. Plainview-Old Bethpage Central School District, that the public disclosure requirement was satisfied when stigmatizing statements were placed in a personnel file of a terminated employee and were likely to be discovered by future employers. 96 F.3d 623, 631 (2d Cir.1996). Similarly, in Brandt v. Board of Co-op. Educational Services allegations of sexual misconduct by a substitute teacher were placed in his personnel file and he was fired. 820 F.2d 41, 42-3 (2d Cir.1987). The district court granted the defendant's motion for summary judgment because the statements were not actually disclosed. Id. at 45. In reversing, the Second Circuit held the plaintiff did not have to wait until the information was disclosed to a potential employer and suffer harm before bringing suit. Id. The Second Circuit also noted that even though the plaintiff has the power over disclosure of his personnel file, if he chooses to keep it confidential form future employers he would be forced to limit his job opportunities. Id. The fact that the City has not disclosed Jenkins' diagnosis does not on its face bar a stigma plus claim. Donato, 96 F.3d at 631. Jenkins' situation appears similar to that of the plaintiff in Brandt, who could choose to keep the information private but only at a cost. Just as Brandt might be limited in his employment options by refusing *514 to allow access to his personnel file, it is possible that Jenkins may be denied various opportunities if he does not disclose his residence or medical history. Thus, at this stage, Jenkins' stigma-plus claim cannot be dismissed because of a lack of public disclosure. However, Jenkins states no claim for stigma plus because the denial of assignment to his preferred shelter is a discretionary agency decision, and so is not a tangible and material state-imposed burden on the plaintiff. Universal Sanitation Corp. v. Trade Waste Comm'n of New York, 940 F.Supp. 656, 662 (S.D.N.Y.1996). To support their contention that no tangible and material state burden has been imposed, the Defendant cites Doe v. Department of Public Safety ex rel. Lee, 271 F.3d 38 (2d Cir.2001) rev'd on other grounds, Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), in which the Second Circuit extensively reviewed the plus requirement of the "stigma plus" test. In Doe the court sought to determine if Connecticut's "Megan's Law," which made public the names and addresses of convicted sex offenders, deprived those on the list of a due process liberty right under the "stigma plus" test. Doe, 271 F.3d at 47. Drawing on the Supreme Court's decision in Paul v. Davis, 424 U.S. 693, 711, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Second Circuit reasoned, that the purpose of the "plus" factor was to prevent traditional state law tort claims of defamation from becoming constitutional claims just because the actor was acting under the color of state law. Doe, 271 F.3d at 53. There is no requirement that the "requisite tangible interest or burden ... meet some threshold of substantiality or that it must implicate a certain kind of interest, but rather it must at least entail some non-trivial state involvement that removes the plaintiffs complaint from the realm of traditional state-law defamation". Id. at 54-55. The court found that the reporting and registration requirements of the Connecticut law which included criminal penalties for non-compliance were governmental acts that altered the plaintiffs legal status and thus satisfied as a "plus" factor. Id. at 56. In this case, Jenkins has no right to placement in a particular shelter, and the DHS has discretion in his assignment to a particular housing unit. 94 ADM-20(V)(D)(3). Although Jenkins could argue he is burdened by his assignment to the MICA facility, where agency discretion exists there is no right or status implicated that satisfies the "plus" factor requirement of the stigma plus test. Universal Sanitation Corp., 940 F.Supp. at 662. Thus, the Plaintiff has no liberty interest that is implicated and has no claim under the Due Process Clause. In any event, even if the court were to find a protected property or liberty interest, the Plaintiffs potential due process claim would have to be dismissed if the Plaintiff was afforded adequate post-deprivation remedies. Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458, 464-5 (2d Cir.2006). Jenkins had two post deprivation remedies that satisfy due process requirements. The New York Administrative Code provides for a hearing to challenge his placement. 18 N.Y.C.R.R. § 358-3.1. DHS also gave Jenkins an opportunity to undergo an additional psychiatric evaluation by the doctor of his choice. (Greene Letter 1). Jenkins was not deprived of any liberty or property "without due process of law". Americans with Disabilities Act The Court should consider a potential Americans with Disabilities Act ("ADA"), despite the lack of any formal pleading regarding the claim. *515 The Defendant acknowledges the possibility of an ADA claim in a footnote, but argues that the complaint "contains no allegations in support of such a claim." Mot. to Dismiss 12 n. 9. However, there are facts that can be gathered from the complaint that might support a plausible claim under the ADA. The ADA defines disability as "A physical or mental impairment that substantially limits one or more major life activities... or being regarded as having such an impairment". 42 U.S.C. § 12102(1)(a-c). The ADA "regarded as" provision was amended effective January 1, 2009 to apply to individuals who have "been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity". 42 U.S.C. § 12102(3)(a). Prior to the amendment, the plaintiff had the burden of proving he was regarded as having a disability as defined by the ADA, and thus prove a perception of impairment of major life activities. See eg., Jacques v. DiMarzio, Inc., 386 F.3d 192, 201 (2nd Cir.2004). Title II of the ADA prevents an individual with a disability from being "excluded from participation in or be denied the benefits of the services, programs, or activities" of a governmental agency. 42 U.S.C. § 12132. The Plaintiff contends he was denied entrance into the shelter of his choice because of a mistaken diagnosis of schizophrenia. (Greene Letter 1). This suggests that the Plaintiff could be alleging that he has been denied a local government service due to his status as an individual who is perceived as having mental disabilities or psychiatric impairment. The Supreme Court has addressed the issue of segregation of mentally ill as a form of discrimination under the ADA. Olmstead v. Zimring, 527 U.S. 581, 600, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). The Olmstead plaintiffs were mentally ill patients who were institutionalized at the psychiatric unit of Georgia Regional Hospital. Id. at 593, 119 S.Ct. 2176. The plaintiffs wanted to leave the institution and enter community based treatment. Id. The medical professionals at the hospital concluded the plaintiffs had stabilized and agreed that they should be transferred to the community-based treatment program in order to be integrated into society. Id. Despite this recommendation the plaintiffs remained institutionalized for more than a year because of a lack of appropriate community placements. Id. They filed a complaint alleging their continued confinement in a mental hospital violated Title II of the ADA. Id. The Attorney General has issued regulations implementing the ADA and "concluded that unjustified placement or retention of persons in institutions, severely limiting their exposure to the outside community, constitutes a form of discrimination based on disability prohibited by Title II". Id. at 596, 119 S.Ct. 2176. However, the Attorney General has also determined that the ADA did not require changes that "would fundamentally alter the nature of the service, program, or activity". Id. (quoting 28 CFR § 35.130(b)(7)). Justice Ginsburg, writing for a plurality, affirmed the Attorney General's interpretation of the ADA that "unjustified segregation ... is properly regarded as discrimination based on disability". Id. at 597, 119 S.Ct. 2176. However, the court cautioned that the ADA does not justify the wholesale elimination of institutionalization in favor of community-based treatment. Id. The ADA only prevents discrimination against those individuals with a disability who are "otherwise qualified" to receive the benefit. Id. at 601-2, 119 S.Ct. 2176. The *516 court noted, "The State generally may rely on the reasonable assessments of its own professionals in determining whether an individual meets the eligibility requirements" of a specific program. Id. at 602, 119 S.Ct. 2176. Justice Ginsburg also noted, "Courts normally should defer to the reasonable medical judgments of public health officials". Id. at 602, 119 S.Ct. 2176. Justice Ginsburg also stated that placement in community-based treatment was required only to the extent that such placement could be reasonably accommodated. Id. at 605, 119 S.Ct. 2176. The court explicitly noted that it is not, "... the ADA's mission to drive States to move institutionalized patients into an inappropriate setting, such as a homeless shelter". Id. The plurality concluded that, under Title II of the ADA, states are required to provide least-restrictive mental health placement to persons with disabilities "when the State's treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with disabilities". Id. at 607, 119 S.Ct. 2176. Unlike the plaintiffs in Olmstead, Jenkins denies that he has a disability. (Greene Letter 1). Jenkins alleges that he is perceived to have a disability (evidenced by his diagnosis of schizophrenia) and that he is being denied placement in a certain type of shelter because of that perception. He argues that he is entitled to be free from discrimination because of his perceived disability in his placement into a shelter. Following the logic of Olmstead, Jenkins' potential claim is that that he is entitled to be placed in the least restrictive housing consistent with his medical condition; his condition has been misdiagnosed and so he is perceived as having a disability; the result is placement in more restrictive housing than he wants, which isolates him from the community in a way that constitutes discrimination under the ADA. However, entertaining such a claim would require this Court to stray from the rule articulated in Olmstead that, "Courts normally should defer to the reasonable medical judgments of public health officials". Id. at 602, 119 S.Ct. 2176, The language of the plurality in Olmstead implies there may be unusual situations in which deference to the State medical professionals would not be appropriate. However, the facts here alleged do not suggest that this is such a case. Given Jenkins' classification by medical professionals as a schizophrenic, he was not qualified for the less restrictive housing assignment he sought. Despite the fact that the Greene letter describes why Jenkins believes the diagnosis is unreasonable, the Court is required to give deference to the medical judgment of trained professionals. Jenkins could have challenged his diagnosis administratively but he did not; he was offered a new evaluation by the physician of his choice but he has refused to undergo it. Under these circumstances, Jenkins is asking the Court to substitute its (non-existent) medical judgment for that of the trained DHS official who diagnosed him. Without a second opinion (which DHS offered to consider) or more specific allegations in the pleadings, there is no basis for second-guessing the diagnosis of DHS medical professionals. Fair Housing Act Although a claim under the Fair Housing Act has not been formally pled it is also appropriate to evaluate the possibility of such a claim. In evaluating a motion to dismiss a pro se complaint, the court should take into consideration all relevant documents and pleadings, not just the *517 complaint, when determining if a valid claim has been stated. Locicero, 419 F.Supp.2d at 525. The Fair Housing Act makes it illegal to "to discriminate in the sale or rental, or otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap". 42 U.S.C. § 3604(f). Handicap is defined as "a physical or mental impairment which substantially limits one or more of such person's major life activities, or a record of having such an impairment or being regarded as having such an impairment". 42 U.S.C. § 3602(h). Based on Jenkins' pleadings and the text of the FHA, it is possible to imply a claim that Jenkins was denied a dwelling because he was regarded as having a mental impairment that substantially limits one or more of his life's activities. The Second Circuit has not addressed whether a shelter offering free housing to the homeless falls under the Fair Housing Act. One court in this district has discussed this issue: in Anonymous v. Goddard Riverside Community Center, Inc., 1997 WL 475165, No. 96 CIV. 9198 (S.D.N.Y. Jul. 18, 1997), the court treated a federally funded residential treatment program for the mentally ill as a rented dwelling for the purposes of evaluating a motion to dismiss. The court dismissed the complaint on other grounds and addressed this issue only in a footnote; it did not need to resolve the issue but cited favorably to cases finding homeless shelters and group homes were "dwellings". Goddard, 1997 WL 475165, at *5 n. 4. A review of cases from other circuits that address the issue in more detail reveals that three issues need to be considered: the classification of the shelter as a "dwelling", the existence of consideration needed to establish "rent", and the meaning of the phrase "otherwise make unavailable or deny". A) Dwelling The Fair Housing Act defines a dwelling as any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof 42 U.S.C. § 3602(b). This has often been interpreted to include homeless shelters. See eg., Woods v. Foster, 884 F.Supp. 1169 (N.D.Ill.1995), Lakeside Resort Enterprises, LP v. Board of Sup'rs of Palmyra Tp., 455 F.3d 154 (3d Cir.2006), Community House, Inc. v. City of Boise, 490 F.3d 1041, 1044 n. 2 (9th Cir.2007) (rehearing en banc). Woods v. Foster, a case from the Northern District of Illinois, offers the most in-depth discussion of whether or not a homeless shelter qualifies as a "residence by one or more families". 884 F.Supp. 1169 (N.D.Ill.1995). In Woods, the plaintiffs were women who resided in a homeless shelter operated by the New Life Outreach Ministries of Chicago under a contract with the City of Chicago Department of Human Services, which was funded by the United States Department of Housing and Urban Development. Id. at 1171. The plaintiffs alleged that supervisors of the shelter made unwanted sexual advances and filed a complaint of discrimination based on sex under the Fair Housing Act. Id. at 1172. In determining if the shelter was a "dwelling," the court determined that most courts have cited the analysis of United States v. Hughes Memorial Home, 396 F.Supp. 544, 548-9 (W.D.Va.1975), which defined residence as "a temporary or permanent dwelling place, abode or habitation to which one intends to return *518 as distinguished from the place of temporary sojourn or transient visit". Courts have continued to look to the Hughes "plain meaning" analysis in determining what constitutes a dwelling under the FHA. See, Home Quest Mortg. LLC v. American Family Mut. Ins. Co., 340 F.Supp.2d 1177, 1184 (D.Kan.2004). The court in Woods concluded that the homeless shelter was a temporary dwelling place and not merely a place of transient visit because the nature of being homeless meant the women had no other place to go, Also, they demonstrated a clear intent to return to the shelter. Id. at 1174. This was contrasted to a hotel where, after finishing their stay, guests return another dwelling. Id. The Third Circuit, evaluating whether or not a drug and alcohol treatment center qualified as a dwelling under the FHA, applied a two-part test: First, we must decide whether the facility is intended or designed for occupants who intend to remain in the facility for any significant period of time. Second, we must determine whether those occupants would view the facility as a place to return to during that period. Lakeside Resort Enterprises, LP v. Board of Sup'rs of Palmyra Tp., 455 F.3d 154, 158 (3d Cir.2006) (internal quotations omitted). The formal two-part test takes into account factors similar to those considered in the as the Hughes "plain meaning" test. The court reached the conclusion that the treatment center was a dwelling under the FHA. Id. The Ninth Circuit has also applied the Fair Housing Act to homeless shelters, although it has not addressed whether all temporary homeless shelters fall within the statute's definition of a "dwelling". Community House, Inc. v. City of Boise, 490 F.3d 1041, 1044 n. 2 (9th Cir.2007) (rehearing en banc). In Community House, the Ninth Circuit reversed the District Court's dismissal of a Fair Housing Act claim against a men's only homeless shelter because the District Court had applied the incorrect test to the discrimination claims made by the plaintiffs. Community House, Inc. v. City of Boise, 468 F.3d 1118, 1123 (9th Cir.2006). The court initially noted in a footnote that it had "previously applied the Fair Housing Act to homeless shelters". Community House, 468 F.3d at 1123 n. 2. Rehearing the case en banc, the court replaced the footnote with an explanation that the parties did not dispute whether or not the FHA applies to homeless shelters, so the court was not ruling on the issue. Community House, 490 F.3d at 1044 n. 2. The court noted in the new footnote that the Community House facility was not mere transient housing, and it had "little trouble concluding" that it qualified as a dwelling under the Fair Housing Act. Community House, 490 F.3d at 1044 n. 2. The court further noted that regulations implementing the Fair Housing Act Amendments with respect to disability specifically listed as an example of a dwelling "shelters intended for occupancy as a residence for homeless persons". Community House, 490 F.3d at 1044 n. 2 (citing 24 C.F.R. § 100.201) (emphasis original). At least at the pleading stage, prior to the development of any factual record, the homeless shelter to which Jenkins was denied entry could well fall within the definition of dwelling under the FHA. Jenkins is intends to stay at the shelter as long as he can, he and has no other home to go to. No facts pleaded or inferred from the complaint distinguish the New York City shelter from the shelters in Woods, Lakeside, and Community House. *519 B) Rent The Fair Housing Act prohibits discrimination "in the sale or rental" of a dwelling. 42 U.S.C. § 3604(f)(1). The FHA defines "to rent" as "to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant." 42 U.S.C. § 3602(e). Although a few district courts have held that government grants to homeless shelters constitute consideration and qualify the homeless as renters, I find that argument unpersuasive. The court in Woods found that the HUD grant paid to the city constituted consideration for the plaintiffs' use of the homeless shelter. 884 F.Supp. at 1175. The court in Goddard similarly treated federal funding as sufficient consideration, albeit in dictum. 1997 WL 475165, at *5 n. 4. However, neither court cited any authority for its conclusion. A far more plausible reading of the statute would limit the word "rent" to consideration paid by the person who has the right to occupy the dwelling. Jenkins seeks a government service. He is not offering any consideration in exchange for a room in the shelter and the government agency that awarded money used to keep the shelter open did not intend to occupy the premises. Therefore, neither Jenkins nor a government agency is a "renter" within the meaning of the FHA. C) Otherwise Make Unavailable or Deny However, the court in Woods held that no payment of rent by the homeless plaintiffs was necessary, because the FHA also makes it illegal to "otherwise make unavailable or deny a dwelling to any person". 884 F.Supp. at 1175 (quoting 42 U.S.C. 3604(a)). The Woods court cited a Seventh Circuit case, N.A.A.C.P. v. American Family Mutual Insurance Co., 978 F.2d 287, 297-301 (7th Cir.1992), cert, denied, 508 U.S. 907, 113 S.Ct. 2335, 124 L.Ed.2d 247 (1993), for the proposition that the "otherwise make unavailable" clause expanded the scope of the Fair Housing Act to include actions other than refusal to rent or sell property. American Family applied the "otherwise make unavailable" clause to the discriminatory refusal to sell homeowners insurance, which had the effect of making a dwelling unavailable to the plaintiff. Id. Most courts that have addressed the issue of whether or not the "otherwise make unavailable" clause expands the FHA beyond renting and selling have concluded that it does. See, National Fair Housing Alliance, Inc. v. Prudential Ins. Co. of America, 208 F.Supp.2d 46 (D.D.C.2002). However, the court in Woods was relying on § 3604(a) of the FHA, which applies to discrimination based on sex. Here the Plaintiff would have to rely on § 3604(f), which applies to discrimination based on handicap. There is, it turns out, a crucial difference in the language of the two provisions, one that makes the analysis in Woods inapplicable to the present case. Section 3604(a) makes it illegal "to otherwise make unavailable or deny, a dwelling to any person". 42 U.S.C. 3604(a) (emphasis added). Section 3604(f) makes it illegal "to otherwise make unavailable or deny, a dwelling to any buyer or renter". 42 U.S.C. 3604(f) (emphasis added). We have already established that under any logical construction of § 3604(f), Jenkins is not a "renter," and he most certainly is not a "buyer." There is thus a critical difference between § 3604(f), which applies to discrimination on the basis of handicap, and § 3604(a), which applies to all other FHA discrimination. The "otherwise make unavailable" clause is narrower in cases of discrimination on the basis of handicap; § 3604(f) requires that a handicapped person *520 be either a renter or a buyer in order to bring a Fair Housing Act claim. Reading § 3604(f) to expand the "otherwise make unavailable" clause beyond renters and buyers would ignore the fact that when Congress drafted the FHA disability amendments, it chose to apply a different (and narrower) standard to individuals who are perceived to have a disability. The Ninth Circuit has noted this distinction and upheld the dismissal of a claim brought under § 3604(f) holding that it "employs the terms `renter or buyer', suggesting that, at the very least, [the plaintiff] must allege that he is a prospective buyer to achieve standing". Ricks v. Beta Development Co., 92 F.3d 1193, No. 95-15335, 1996 WL 436548, at *1 (9th Cir. Jul. 10, 1996) (unpublished table opinion). Thus, the "otherwise make unavailable" clause may expand the prohibited activities under § 3604(f) beyond simply renting and selling but it does not expand the class of individuals who are protected from discrimination on the basis of a handicap beyond renters or buyers. Even if an argument could be made that Jenkins was denied "housing" by being excluded from the shelter he prefers, he is not a buyer or a renter of any property and so has no claim under the differently-worded "otherwise make unavailable" clause of § 3604(f). Article 78 It is clear from Jenkins' pleadings and the letter written on his behalf that Jenkins contends that DHS' the initial diagnosis of schizophrenia was incorrect. For example, Jenkins makes the following allegations: "DHS and MICA refused to review the facts on the in-take evaluation" (Compl. 4); DHS did not offer "arbitration on the evaluation" (Id.); "An asymptomatic client was assigned without cause to MICA" (Response 1); "Mr. Jenkins' psychiatric evaluation does not support a diagnosis of schizophrenia" (Greene Letter 3), A challenge to the agency's determination falls squarely under Article 78 of the New York Civil Practice Law and Rules, which provides a method for challenging an agency decision that a plaintiff believes "was arbitrary and capricious or an abuse of discretion". CLPR § 7803(3). Any such claim is time barred, however, because an Article 78 action "must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner". CPLR § 217(1). Seeking reconsideration of an agency decision does not extend the statute of limitations unless the agency is statutorily obligated to reconsider. Todd v. New York City Housing Authority, 262 A.D.2d 202, 202, 692 N.Y.S.2d 327, 327 (N.Y.A.D. 1 Dept.1999). The court has not been apprised of any such statutory obligation. The determination that Jenkins challenges was made in August of 2007. It became final and binding immediately. He was denied entry into the general homeless shelter population at that time. (Greene Letter 1). That is more than 4 months prior to the commencing of this action on October 3, 2008. DHS offered to reconsider Jenkins' placement sometime before June 9, 2008. Id. According to Greene, DHS indicated the diagnosis was conducted under the authority of 18 NYCRR § 491.4(c) which allows shelters to conduct interviews to determine the needs of potential residents and determine if the shelter is adequate to meet those needs. The regulation does not have any mandatory reconsideration provision and thus the offer to reconsider his placement does not extend the statute of limitations. CONCLUSION All potential claims having been analyzed and dismissed with prejudice, the *521 Clerk of the Court is directed to enter judgment for the Defendant's and close the file. This constitutes the decision and order of the Court. NOTES [1] The Court notes that many lawyers make the same mistake. [2] As the defendant notes, the complaint does not explicitly raise the issue of stigma. Mot. to Dismiss 8. It is not entirely without basis, however, given that the plaintiff makes numerous references to the "hardship" caused by his assignment to the MICA shelter. (Compl. 2, 3). Although evaluating this claim seems to push the limits of the liberal interpretation afforded to pro se complaints, it seems appropriate to evaluate the claim in this manner since the defendant suggested that it might be so read.

48 B.R. 591 (1985) In re Thomas Rye PERRY and Jeri Lynn Perry, Debtors. Thomas Rye PERRY, Plaintiff, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Defendant. Bankruptcy No. 383-01920, Adv. No. 383-0590. United States Bankruptcy Court, M.D. Tennessee. April 22, 1985. *592 Daniel C. Masten, Nashville, Tenn., for debtors. D. Reed Houk, Nashville, Tenn., for defendant. MEMORANDUM KEITH M. LUNDIN, Bankruptcy Judge. The defendant in this action to recover a preference invites reconsideration of the rule announced in this district in Eggleston v. Third National Bank, 19 B.R. 280, 9 BANKR.CT.DEC. (CRR) 44 (Bankr.M.D. Tenn.1982). Eggleston held that wages garnished from a debtor within 90 days of a bankruptcy petition may be preferential transfers though the garnishment lien was executed upon the debtor outside of the 90-day preference period. The defendant argues that Eggleston is incorrect for the reasons stated in two circuit decisions rendered since Eggleston. See Askin Marine Co. v. Conner, 733 F.2d 1560, 1561 (11th Cir.1984); In re Coppie, 728 F.2d 951, 952 (7th Cir.1984), cert. denied sub nom., Gouveia v. Hammond Clinic, ___ U.S. ___, 105 S.Ct. 777, 83 L.Ed.2d 772 (1985). See also Riddervold v. Saratoga Hospital, 647 F.2d 342, 344 (2d Cir.1981). For the reasons stated below, this court believes that Eggleston is correctly decided. The following constitute findings of fact and conclusions of law as required by Bankruptcy Rule 7052. This is a core proceeding. 28 U.S.C. § 157(b)(2)(F). I. On August 25, 1981, General Motors Acceptance Corporation ("GMAC") obtained a judgment for $2,344.93 against Thomas Rye Perry ("Perry") in the Metropolitan General Sessions Court for Davidson County, Tennessee. Perry made several voluntary payments to GMAC and paid part of the judgment through a garnishment. On March 10, 1983, GMAC executed a second *593 garnishment. The writ was served on Perry's employer on April 13, 1983. On July 22, 1983, Perry filed a Chapter 7 petition.[1] Within the 90 days prior to the filing of Perry's petition, GMAC received $751.61 pursuant to its garnishment.[2] Perry scheduled the garnished wages as exempt property and filed a complaint to recover the garnished wages from GMAC as preferential transfers.[3] The matter is before the court on cross-motions for summary judgment. II. The Bankruptcy Code prescribes six elements that must be proven before a transfer is an avoidable preference: (1) the transfer of property of the debtor; (2) to or for the benefit of a creditor; (3) on account of an antecedent debt; (4) while the debtor was insolvent; (5) within 90 days before the filing of a petition; and (6) that enables the creditor to receive more than it would have received if the transfer had not been made and the case was under Chapter 7. 11 U.S.C.A. § 547(b). The trustee or debtor bears the burden of proof on each of these elements.[4]See Eggleston at 282. See also Steel Structures, Inc. v. Star Mfg. Co., 466 F.2d 207, 216 (6th Cir.1972). In Eggleston, Judge Paine of this court held that a transfer of wages pursuant to a garnishment occurs when the debtor actually earns or otherwise becomes entitled to the wages. For preference purposes, he found this conclusion was required by 11 U.S.C.A. § 547(e)(3).[5] This holding is supported by much authority. See Matter of Morton, 44 B.R. 750 (Bankr.N.D.Ga.1984); Tabita v. Internal Revenue Service, 38 B.R. 511, 12 BANKR.CT.DEC. (CRR) 41 (Bankr.E.D.Pa.1984); Button v. Noe, 29 B.R. 118, 120 (Bankr.E.D.Tenn.1983); Larson v. Olympic Finance Co., 21 B.R. 264, 270 (Bankr.D.Utah 1982); Walden v. First Tennessee Bank, 19 B.R. 901 (Bankr.E.D. Tenn.1982); Mayo v. United Services *594 Automobile Ass'n., 19 B.R. 630, 632 (E.D. Va.1981); Evans v. CIT Financial Services, Inc., 16 B.R. 731, 733 (Bankr.N.D.Ga. 1982); Poutre v. Emery, 13 B.R. 689, 690 (Bankr.D.Vt.1981); Brengle v. Wilmington Trust Co., 10 B.R. 360, 362 (Bankr.D.Del. 1981); Cox v. General Electric Credit Corp., 10 B.R. 268, 270 (Bankr.D.Md.1981). Judge Paine examined the Tennessee garnishment law and determined that the garnishee "retains an interest in his wages until such interest is terminated by the court's payment of the garnished wages to the creditor." Eggleston at 285. See Walden v. First Tennessee Bank, 19 B.R. 901 (Bankr.E.D.Tenn.1982) (same view of Tennessee law). The court held that payment of garnished wages to a creditor within the 90-day period was a transfer of the debtor's property and could constitute a preference if the other elements identified above are present. GMAC asserts that Eggleston incorrectly focused on the date the wages were earned by the debtor rather than whether the debtor had any "property interest" in the garnished wages after service of the original writ. I disagree with GMAC's interpretation of Eggleston. In Eggleston, Judge Paine correctly determined that the debtor retains a property interest in garnished wages under Tennessee law sufficient to support a § 547 action. In Tennessee, garnishment is not a magical or mysterious super-power of collection for creditors; it is but one method among many by which creditors are permitted under state law to levy on a debtor's property to satisfy a debt. Under Tennessee law, a garnishment is merely a lien on the debtor's wages. TENN.CODE ANN. § 26-2-214(4) clearly provides that "a garnishment is a lien on salaries, wages, or other compensation due at the time of the service of the execution." (emphasis added). A lien is a charge or an incumbrance on property to secure payment or performance of debt, duty, or other obligation. United States v. Kentucky Home Mutual Life Insurance Co., 292 F.2d 39 (6th Cir.), cert. denied, 369 U.S. 803, 82 S.Ct. 642, 7 L.Ed.2d 550 (1961); In re Harpeth Motors, 135 F.Supp. 863 (M.D.Tenn.1956); Shipley v. Metropolitan Life Insurance Co., 25 Tenn.App. 452, 158 S.W.2d 739 (1942). A garnishment lien does not allow an immediate right of possession but affords security for the payment of the judgment underlying the garnishment. Eggleston cites Beaumont v. Eason, 59 Tenn. (12 Heisk) 417 (1873). In Beaumont, the Tennessee Supreme Court conducted an extensive analysis of the operation and effect of Tennessee's garnishment statute. The court explained: The legal effect of the levy of an execution by garnishment is well settled. . . . [The service of the garnishment] fixes a lien on the debt or effects in the hands of the garnishee, and he holds them under the control of the court, and acquires a special property in them as agent of the court. As such agent, it is the duty of the garnishee to go to the court with the effects in his hands belonging to the debtor and make answer according to the requirements of the process of garnishment. When he has answered, admitting his indebtedness, or that he has effects belonging to the debtor, the court proceeds to subject them to the satisfaction of the debt. . . . The garnishee becomes the agent of the court, not to sell, but to keep and return of the property for the action of the court. He is vested with the special title as a custodian of the property, but not with the title that authorizes him to sell and convey title . . . This is the necessary result of the legal fact of the service of garnishment does no more than vest in the garnishee a special title as a custodian for the court, and divests the title of the debtor only so far as to restrain his power to regain his property while it is in the custody of the garnishee. Beaumont at 418-421 (emphasis added). In Cumberland Telephone and Telegraph Co. v. Jenkins, 1 Tenn.C.C.A. (Higgins) 203, 206 (1910), the court again considered the "trustee" relationship between the garnishee and the debtor noting *595 that "the service of the garnishment writ creates a lien upon the funds of the debtor in the hands of the garnishee and virtually makes him a trustee of those funds; and as such trustee, he must duly account for them in the attacking Court." The court emphasized that: We understand the law further to be that the garnishee, after service of process, must retain the debt or funds attached, and must bring them into Court and have the Court decide the relative rights of the judgment creditor, the judgment debtor, and himself. Cumberland Telephone at 207. Elsewhere, the Tennessee courts describe execution of the garnishment as in the nature of a "sequestration of the effects of the debtor" to secure payment of a judgment. Rucker v. Aymett, 186 Tenn. 672, 212 S.W.2d 659, 661-662 (1948). Under Tennessee law, the property of the debtor which is levied upon pursuant to a wage garnishment is the debt between the debtor and his or her employer and that debt does not come into existence until wages are earned by the debtor. For example, in Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991 (1936) cert. denied, (1937), the Tennessee court addressed the situation where a wage garnishment was served upon an employer who was paying the judgment/debtor (employee) in advance. The court first noted that "the procedure of garnishment is purely statutory" and a garnishee (here, employer) is required to answer: "whether he is, . . . indebted to the defendant. . . . Whether he had in his possession . . . any property, debts, or effects belonging to the defendant. . . ." Consistent with the general rule that "garnishment process can reach only debts absolutely existing," the court held that garnishment process in Tennessee cannot reach wages noncollusively paid in advance by an employer to the debtor/defendant because such advance payments are voluntary, do not constitute debts between the garnishee and defendant and thus "there were none of the defendant's funds over which the court could exercise control . . ." 100 S.W.2d 995. Under Tennessee law a debtor retains important and substantial interests in garnished wages after service of the writ on the debtor's employer. These residual rights and interests are afforded due process protections by Tennessee law. When the garnishment summons is served on the employer/garnishee, Tennessee law requires that the debtor be given a notice informing the debtor of the following rights: TO THE DEBTOR: Your earnings have been subjected to the lien of a garnishment. . . . You have the right to apply to the court for an order suspending further garnishments . . . upon such terms as the court may approve. The court clerk shall provide you with necessary forms . . . you may wish to seek counsel. . . . TENN.CODE ANN. § 26-2-216 (emphasis added). When the debtor becomes entitled to receive wages (i.e., when a debt between the debtor and his employer comes into existence) the garnishment requires the employer/garnishee to segregate the funds subject to garnishment and to pay them not to the creditor, but to the clerk of the appropriate state court. By statute the debtor then has the right to move the court to be allowed to make installment payments and to halt the garnishment. TENN.CODE ANN. § 26-2-216. Tennessee law requires that the judgment debtor be given "due notice . . . and . . . full hearing" of such a motion and the filing of the motion by the judgment debtor "shall stay the issuance, execution or return of any writ of garnishment against wages or salary due the judgment debtor . . ." Id. The debtor has the right to recover the wages if they are wrongfully paid or if the judgment is satisfied, expires, voided or otherwise fails. The debtor can exempt certain wages and, therefore, complete divestment cannot occur at least until the debtor's entitlement to the exemptions is determined. TENN.CODE ANN. § 26-2-101 et seq. *596 Wages subject to a garnishment lien are considered to be the judgment debtor's property for many other purposes. The wages are taxed. Social Security deductions are made from the wages. The wages are counted in determining the debtor's potential entitlement to government benefit programs. The entirety of these rights constitutes a substantial property interest. Eggleston correctly so determined. The recent circuit decisions relied upon by GMAC are either based on provisions of the laws of other states which are not analogous to Tennessee law or are based on interpretation of the Bankruptcy Code which we do not believe would be adopted in this circuit. Since our decision in Eggleston, two United States Courts of Appeals have held that when a garnishment is served outside the 90-day preference period, wages earned but garnished within the 90-day period are not recoverable as preferences.[6]Askin Marine Co. v. Conner, 733 F.2d 1560 (11th Cir.1984); In re Coppie, 728 F.2d 951, 952 (7th Cir.1984), cert. denied sub nom., Gouveia v. Hammond Clinic, ___ U.S. ___, 105 S.Ct. 777, 83 L.Ed.2d 772 (1985). The Coppie court, consistent with the earlier decision of the Second Circuit in Riddervold, held that execution of a garnishment created a "continuing levy" that terminated all property interests that a debtor could obtain in his future wages. The United States Court of Appeals for the Seventh Circuit explained this rationale and specifically rejected Eggleston's reliance on § 547(e)(3):[7] The most important distinction is that under Indiana law, the debtors retained no interest in 10% of their future wages following the entry of the garnishment orders. In contrast, the filing of financing statements in Grain Merchants did not transfer ownership of the debtors future accounts receivable; the debtor would acquire some rights in the future accounts receivable when the accounts receivable came into existence. Section 547(e)(3) does not come into play in this case simply because after a garnishment order providing for a continuing lien is entered . . . a debtor will never acquire rights in the portion of his or her wages to be garnished in the future. Once a garnishment order has been entered by a court, the debtor's rights in 10% of his or her future wages are irrevocably transferred to the garnishment plaintiff. Coppie at 953 (emphasis added). Conner, without reliance on state law, and without reference to § 547(e)(3), held that the "transfer" for § 547 purposes occurred when the original garnishment levy was filed. If it makes sense at all, the "continuing levy" concept offered in Riddervold and applied in Coppie operates only in a state which would recognize execution of the original writ of garnishment as accomplishing the complete end to the debtor's legal and equitable rights in future wages.[8] Citing early New York authority and in particular some analysis by Judge Learned Hand, the Riddervold and Coppie courts found that garnishments under the respective state laws there at issue constitute a "continuing levy" capturing earnings as they come due but effecting a complete divestment into the future of all interests the debtor could have in those future earnings. *597 In the opinion of this court, the "continuing levy" concept begs the question whether the debtor has a right or interest in future wages sufficient to constitute property for preference purposes. Indeed it is true under Tennessee law that a garnishment lien "continues" by statute for three months after original service of the writ and attaches to earnings becoming due to the judgment debtor during that time, unless certain conditions occur (for example— installment payments, discussed above; a court order; retirement of the underlying judgment). The fact that the garnishment lien continues and attaches to earnings is not dispositive of the question whether the debtor also acquires rights and interests in the same wages as they are earned. Tennessee law requires the holding that a judgment debtor acquires rights or interests in property before the "continuing levy" of a garnishment lien acts to affect that property. As demonstrated above, the existence of a debt between the judgment debtor and the garnishee is a prerequisite to the possibility of a wage garnishment under Tennessee law. See Rowland discussed supra. Under Tennessee law, the "continuing levy" is not to the exclusion of the existence of the debt, but rather the debt is the precondition to the operation of the levy. The debt itself is the essence of an interest in property. "Continuing levy" is a process notion—once a debt exists, a creditor's lien can attach to it. Riddervold and Coppie notwithstanding, this court believes that a "continuing levy" operates not to the exclusion of the debtor's interest in property, rather the levy depends upon the existence of that interest. The Seventh Circuit's emasculation of § 547(e)(3) and the Eleventh Circuit's failure to focus on that subsection renders both Coppie and Conner less persuasive on further analysis. This court reaffirms its holding in Eggleston that § 547(e)(3) controls the determination of the date of transfer and is not limited to after-acquired property clauses as suggested by the Seventh Circuit. See Coppie at 953.[9] For the purpose of establishing whether a transfer is preferential, Congress enacted specific criteria to identify when a transfer occurs. Section 547(e)(3) (reproduced in the margin above) represents a radical departure from practice under the Bankruptcy Act. Under the Act, it was unnecessary for the debtor to acquire rights in the property before a transfer was complete. See, e.g., Grain Merchants of Indiana, Inc. v. Union Bank & Savings Co., 408 F.2d 209 (7th Cir.) cert. denied, 396 U.S. 827, 90 S.Ct. 75, 24 L.Ed.2d 78 (1969); DuBay v. Williams, 417 F.2d 1277 (9th Cir.1966).[10] The legislative history reveals, however, that § 547(e)(3) was added to overrule these cases and conform the Bankruptcy Code to the commercial practices applied under the Uniform Commercial Code.[11] H.R.REP. NO. 595, 95th Cong., 1st Sess. 374 (1978); *598 S.REP. NO. 989, 95th Cong., 1st Sess. 88 (1978). Nothing in the statutory language or the legislative history limits § 547(e)(3) to security interests in after-acquired property. It is illogical to refuse to apply § 547(e)(3) to all plainly analogous situations. The discussion of Grain Merchants in the legislative history is merely illustrative of, not the exclusive application of, § 547(e)(3). The language of § 547(e)(3) unambiguously applies to all allegedly preferential transfers. One court has noted that it would be contrary to established canons of statutory construction[12] to restrict the operation of the statute to a single circumstance mentioned, but not specified as exclusive in the legislative history. We are fully cognizant that our interpretation of section 547(e)(3) may have far-reaching ramifications. However, we conclude that had Congress intended to restrict the reach of that section to only those security interests involving after-acquired property clauses, it would have done so in the statutory language itself. Tabita at 515. The transfer of a debtor's wages can not occur until the debtor becomes entitled to be paid. See Rowland, supra. When the garnishment was originally executed, the creditor obtained nothing more than a lien on the debtor's right to receive wages if and when the services were rendered and the wages earned.[13] The date of transfer for purposes of § 547(b), therefore, is the date the wages were actually earned. See Matter of Morton, 44 B.R. 750 (Bankr.N.D.Ga.1984) (distinguishing In re Conner). Riddervold, Coppie and Conner oversimplify the concept of "property" for bankruptcy purposes. The Supreme Court has repeatedly recognized that property is not singular, but is comprised of a "bundle of rights" and multiple divisible interests. See, e.g., United States v. Security Industrial Bank, 459 U.S. 70, 76, 103 S.Ct. 407, 411, 74 L.Ed.2d 235, 241 (1982); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). "Property" refers to all the various rights and interest that accompany the res, including but not limited to, the right to possess, to enjoy, to transfer, *599 and the right to recover ownership. See First Charter Land Corp. v. Fitzgerald, 643 F.2d 1011, 1015 (4th Cir.1981). The multiplicity of property rights and interests was vividly recognized in the bankruptcy context by the Supreme Court in United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). Discussing the concept of "property of the estate" in the context of a turnover action to recover property seized by the IRS prepetition, the Court held that "while there are explicit limitations on the reach of § 542(a) [turnover], none requires that the debtor hold a possessory interest in the property at the commencement of the reorganization proceedings." Id. 103 S.Ct. at 2313-14, 76 L.Ed.2d at 522-523 (emphasis added). The Court found that "the reorganization estate includes property of the debtor that has been seized by a creditor prior to the filing of a petition for reorganization." Id. 103 S.Ct. at 2315, 76 L.Ed.2d at 524. The rights and interests remaining in the debtor after levy and seizure by the IRS in Whiting Pools were found by the Supreme Court to be sufficient interests to constitute property of the estate under § 541 and to support recovery under § 542. In the many ways detailed above, the rights of a wage earner in future wages subject to the lien of a garnishment are at least as great under Tennessee law.[14] In this court's opinion, Eggleston is consistent with Whiting Pools. Conner and Coppie are not obviously reconciled with the discussion of "property" in Whiting Pools. A broad interpretation of the property concept (and a restrictive view of the reach of the Tennessee garnishment statute) comports most completely with the philosophy of the Bankruptcy Code and the garnishment statute.[15] The Supreme Court stated this principal premise underlying the bankruptcy law in Lines v. Frederick, 400 U.S. 18, 19, 91 S.Ct. 113, 27 L.Ed. 124 (1970): The most important consideration limiting the breadth of the definition of "property" lies in the basic purpose of the Bankruptcy Act to give the debtor a "new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt. The various provisions of the Bankruptcy Act were adopted in the light of that view and are to be construed when reasonably possible in harmony with it so as to effectuate the general *600 purpose and policy of the act." (citations omitted). The availability of garnished wages as exempt property is a significant element in the debtor's "fresh start." GMAC's interpretation of the preference statute and the Tennessee garnishment law would constitute garnishment liens as a sort of "superlien." A creditor holding a garnishment lien would realize greater recovery in bankruptcy than other judicial lienholders. The special status argued for garnishment liens would encourage a "race to the courthouse" to obtain garnishments and effectuate execution. In summary, we reaffirm Eggleston by holding that (1) under Tennessee law the debtor retains an interest in wages subject to a garnishment lien which constitutes "property" for § 547 purposes; and, (2) under § 547(e)(3) a transfer takes place when the debtor acquires an interest in the wages—when they are actually earned or when the debtor becomes entitled to the wages. An appropriate order will be entered. NOTES [1] Perry filed a joint petition with his wife Jeri Lynn Perry. Mrs. Perry is not a party to this adversary proceeding. [2] The parties stipulated this amount. Perry later alleged that $814.12 was garnished. [3] Perry uses 11 U.S.C.A. § 522(h) (West 1979) to avoid an allegedly preferential transfer pursuant to § 547. Under § 60(b) of the former Bankruptcy Act, it was generally held that only the trustee had authority to avoid a preferential transfer. With the adoption of 11 U.S.C.A. § 522(g) and § 522(h) (West 1979), Congress authorized the debtor's avoidance of a preferential transfer that encumbers exemptions as an enhancement of the debtor's "fresh start." H.R. REP. NO. 595, 95th Cong., 1st Sess. 362-363 (1977); S.REP. NO. 989, 95th Cong., 2d Sess. 76-77 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. See Straight v. Williamette Collection Service, Inc., 35 B.R. 445, 446 (Bankr.D. Or.1983). Section 522(h) provides in relevant part: The debtor may avoid a transfer of property of the debtor or recover a setoff to the extent that the debtor could have exempted such property under subsection (g)(1) of this section if the trustee had avoided such transfer, if— (1) such transfer is avoidable by the trustee under section . . . 547 . . . of this title . . .; and (2) the trustee does not attempt to avoid such transfer. Section 522(g) provides that: Notwithstanding sections 550 and 551 of this title, the debtor may exempt under subsection (b) of this section property . . . to the extent that the debtor could have exempted such property under subsection (b) . . . if such property had not been transferred, if— (1)(A) such transfer was not a voluntary transfer of such property by the debtor; and (B) the debtor did not conceal such property. Perry satisfies these criteria: the garnishment was an involuntary transfer of his wages, Perry did not conceal the wages, and the trustee did not file a complaint to avoid the transfers. [4] If Eggleston is still the law of this district, the parties agree that the garnished wages constitute preferential transfers. The garnishment was for the benefit of GMAC and was on account of an antecedent judgment debt. Under 11 U.S.C.A. § 547(f) (West 1979) the debtor is presumed to be insolvent during the 90 days preceding bankruptcy and GMAC did not rebut the presumption. The trustee filed a no asset report and the garnishment enabled GMAC to receive more than it would have received in a Chapter 7 liquidation. Consequently, the garnishment was preferential if it constituted a transfer of property within the 90-day period preceding the filing of the bankruptcy petition. [5] 11 U.S.C. § 547(e)(3) provides: For the purposes of this section, a transfer is not made until the debtor has acquired rights in the property transferred. [6] Decisions by United States Courts of Appeals from other circuits are entitled to deference and are persuasive precedents, but are not controlling on trial courts in this circuit. See, e.g., Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981); Securities and Exchange Commission v. Shapiro, 494 F.2d 1301, 1306 n. 2 (2d Cir.1974); United States v. Mitchell, 432 F.2d 354, 356 (1st Cir.), cert. denied, 401 U.S. 910, 91 S.Ct. 872, 27 L.Ed.2d 808 (1970). [7] Neither Riddervold nor Conner addressed the effect of § 547(e)(3). [8] Although this court does not purport to be an authority on the peculiarities of the New York, Indiana, or Georgia law relating to garnishments, we have now twice examined the Tennessee law of garnishment and we are fully satisfied that Tennessee law preserves important rights in a debtor's garnished wages which would trigger § 547 of the Bankruptcy Code. [9] The scope of § 547(e)(3) has also been debated outside the garnishment context. In Diversified World Investments, Ltd. v. Omni International, Ltd., 12 B.R. 517, 519 (Bankr.S.D.Tex. 1981), the court addressed whether an assignment of rents outside the ninety day period constituted a preference and noted that: Although not specifically considered by the legislative history, the court believes that § 547(e)(3) was intended to bring payments made pursuant to an assignment within the term "transfer" . . . Thus while indirect, the rental payments were made when Diversified obtained a right to receive them and not at the time of assignment. (emphasis added). But see Beck v. International Harvester Credit Corp. (In re E.P. Hayes, Inc.), 29 B.R. 907, 911 (faced with the question whether payments received by a creditor within the 90-day preference period made pursuant to an assignment of lease payments executed by the debtor prior to the 90-day period held that "no basis exists for construing § 547(e)(3) as affecting settled law beyond its effect on after-acquired property clauses."). [10] These cases held that collateral transferred to the secured party pursuant to an after-acquired property clause within four months preceding the filing of the bankruptcy petition was not a preference if the creditor had perfected a security interest in after-acquired property more than four months prior to the bankruptcy petition. [11] Section 547(e)(3) is similar to the Uniform Commercial Code provision that a security interest cannot attach until "the debtor has rights in the collateral." See, e.g., TENN.CODE ANN. § 47-9-204(1). [12] The primary reference point for interpreting a particular provision is the statutory language, and absent a clearly expressed legislative intent to the contrary, that language should be conclusive. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). Legislative history should not be used to restrict the plain meaning of a statutory provision or to preclude the reasonable interpretation thereof. See 2 NORTON BANKR.L. & PRAC. § 32.27 (1984 Supp.) ("Application of 547(e)(3) to this [garnishment] setting would be consistent with the treatment of after-acquired security interests and would create a uniform, rational result more consistent with basic bankruptcy policies."). [13] One court explained: A writ of garnishment may well be a duly perfected lien on wages yet to be earned such that a creditor on a simple contract cannot acquire a judicial lien that is superior to the rights of the judgment creditor . . . Nonetheless, the avoidance powers under § 547(b) extend to the avoidance of transfers rather than perfection of liens. Inasmuch as § 547(e)(3) establishes that a transfer does not occur until the debtor has rights in the collateral, the transfer of wages garnished pursuant to a writ of garnishment cannot occur until the judgment debtor has earned the wages garnished. Thus, a payment on the garnishment attributable to wages earned by the debtor within ninety days of the filing of a bankruptcy petition is a preferential transfer to a judgment creditor. Cox v. General Electric Credit Corp., 10 B.R. at 271-272 (emphasis added). The court in Tabita v. Internal Revenue Service, 38 B.R. 511, 515 (Bankr.E.D.Pa.1984) further emphasized that: [C]ontrary to the reasoning expressed by the Second Circuit in Riddervold, we find that section 547(e)(3) of the Code "requires" us to hold that the portion of the debtor's salary subject to the wage attachment vests in the debtor-employee when he has performed the services for which he is entitled to be paid. Until that time, the debtor has not "acquired rights" in his wages. Consequently, since, as a matter of federal bankruptcy law, the debtor acquired rights in his wages when he earned them, those wages collected . . . within the preference period are avoidable under section 547(b) of the Code. [14] The key provision of the definition of property of the estate in 11 U.S.C. § 541 is that the estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1). The operative language of § 547(b) at issue in this case states that the preference recovery power is triggered upon a finding of a transfer of "an interest of the debtor in property." 11 U.S.C. § 547(b). It is not obvious that Congress intended the phrase "interest of the debtor in property" in § 547(b) to be any more or any less extensive than the phrase "all legal or equitable interests of the debtor in property" used in § 541(a). More likely, the phrases mean the same thing; the major difference in effect is caused by the fact that the § 541 notion of property operates "as of the commencement of the case" and the § 547(b) notion of property operates as of the time of "any transfer." We think the property of the estate cases like Whiting Pools are very instructive of what the definition of "interest of the debtor in property" should be for § 547(b) purposes. It seems clear that a debtor's interest in wages that are subject to a garnishment lien would be included in the definition of property of the estate for § 541 purposes if the wages are due as of the commencement of the case. But see § 541(a)(6). It should follow logically that a property interest existed in the debtor during the 90 days before the petition for § 547 purposes each time the debtor earned wages subject to a garnishment lien. The general principle at work here was stated by one United States District Court as, "A property interest protected by the Constitution appears to fall well within the ambit of § 541." Morris v. Philadelphia Electric Co., 45 B.R. 350, 12 BANKR.CT.DEC. (CRR) 897, 898 (E.D.Pa. 1984). As is demonstrated above, a garnishee's interest in future wages is entitled by law to substantial due process protections in Tennessee. A debtor retains a property interest in those wages notwithstanding the garnishment lien and that property interest can be the subject of a § 547 action. [15] The Tennessee garnishment statute should be liberally construed in favor of the debtor. See, e.g., Collier v. Murphy, 90 Tenn. 300, 16 S.W. 465 (1891).

227 F.3d 352 (6th Cir. 2000) Kentucky Association of Health Plans, Inc.; Advantage Care, Inc.; Aetna Health Plans of Ohio, Inc.; Choicecare Health Plans, Inc.; FHP of Ohio, Inc.; HMPK, Inc.; HPLAN, Inc.; Humana Health Plan, Inc., Plaintiffs-Appellants,v.George Nichols, III, in his official capacity as Commissioner of the Kentucky Department of Insurance,Defendant-Appellee. No. 98-6308 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Argued: September 20, 1999Decided and Filed: September 7, 2000 Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort. Nos. 97-00024--Joseph M. Hood, District Judge.[Copyrighted Material Omitted] Barbara Reid Hartung, Greenebaum, Doll, & McDonald, Louisville, KY, Robert N. Eccles, Karen M. Wahle, O'MELVENY & MYERS, Washington, D.C., for Appellants. Shaun T. Orme, Anna R. Gwinn, KENTUCKY DEPARTMENT OF INSURANCE, Frankfort, Kentucky, for Appellee. Before: KENNEDY and NORRIS, Circuit Judges; HOLSCHUH,* District Judge. HOLSCHUH, D. J., delivered the opinion of the court, in which NORRIS, J., joined. KENNEDY, J. (pp. 372-84), delivered a separate dissenting opinion with respect to Part III of the majority opinion. OPINION 1 HOLSCHUH, District Judge. 2 Plaintiffs are seven health maintenance organizations (HMOs) licensed under the laws of Kentucky, and the Kentucky Association of Health Plans, Inc., a non-profit association organized to promote the business interest of its HMO members (hereinafter referred to as "plaintiffs"). Plaintiffs filed this action against George Nichols III ("defendant"), in his official capacity as Commissioner of the Kentucky Department of Insurance. Plaintiffs argued that Kentucky Revised Statutes Annotated §§ 304.17A-110(3) and 304.17A-171(1)-(8) (Banks-Baldwin 1995), should be found preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), and sought injunctive relief from their enforcement. Both parties moved for summary judgment. The district court denied plaintiffs' request for summary judgment and granted defendant's cross-motion for summary judgment, concluding that §§ 304.17A-110(3) and 304.17A-171(2) were saved from preemption by ERISA because they "regulated insurance" under ERISA's savings clause. Plaintiffs assert that the district court erred in this conclusion. I. The State Statutes 3 In 1994, the Kentucky General Assembly enacted the Kentucky Health Care Reform Act (the "Act"). The Act contained an "Any Willing Provider" provision that stated: "Health care benefit plans shall not discriminate against any provider who is located within the geographic coverage area of the health benefit plan and is willing to meet the terms and conditions for participation established by the health benefit plan." Ky. Rev. Stat. Ann. § 304.17A-110(3) (Banks-Baldwin 1995). The Act defined a health benefit plan as: 4 [Any] hospital or medical expense policy or certificate; nonprofit hospital, medical-surgical, and health service corporation contract or certificate; a self-insured plan or a plan provided by a multiple employer welfare arrangement, to the extent permitted by ERISA; health maintenance organization contract; and standard and supplemental health benefit plan as established in KRS 304.17A-160. § 304.17A-100(4)(a) (Banks Baldwin 1995). 5 In 1996, the Kentucky General Assembly added §§ 304.17A-170 and 171 to the code. The additions specifically regulate how "health benefit plans" can interact with chiropractors1. Not only does the statute contain an "any willing provider" provision addressed particularly to chiropractors,2 but it also imposes various additional requirements on health benefit plans that include chiropractic benefits3. See § 304.17A-171. 6 In April of 1997, plaintiffs filed suit in the Eastern District of Kentucky, requesting that § 304.17A-110(3) and § 304.17A-171 (for convenience we will collectively refer to § 304.17A-110(3) and § 304.17A-171(2) as Kentucky's "AWP" laws) be declared, among other things, preempted by § 514(a) of ERISA, 29 U.S.C. § 1144(a). Plaintiffs moved for partial summary judgment on the issue and Commissioner Nichols cross-moved for partial summary judgment as well. The district court determined that while the Kentucky AWP laws were related to employee benefit plans under ERISA § 514(a), they regulated the business of insurance and therefore fell under the saving clause of § 514(b), 29 U.S.C. § 1144(b)(2)(A). The court thus granted partial summary judgment in favor of Commissioner Nichols and determined its order to be final and appealable. This appeal followed. 7 Sections 304.17A-110(3) and 304.17A-100(4)(a) were repealed by the Kentucky legislature effective July 1, 1999. The parties acknowledge that this appeal is not moot, however, as the legislature, through House Bill No. 315 (Ky. 1998), replaced the repealed provisions with the same requirements, but substituted the term "health insurer" for "health benefit plan" in its any willing provider provision, now located at Kentucky Revised Statutes Annotated § 304.17A-270 (Banks-Baldwin 1999). The Bill's definition of "insurer" was codified at Kentucky Revised Statutes Annotated § 304.17A-005(22) (Banks-Baldwin 1999), which defines "insurer" as: 8 [A]ny insurance company; health maintenance organization; self-insurer or multiple employer welfare arrangement not exempt from state regulation by ERISA; provider- sponsored integrated health delivery network; self-insured employer-organized association, or nonprofit hospital, medical-surgical, dental, or health service corporation authorized to transact health insurance business in Kentucky. 9 The parties having agreed that this appeal is not rendered moot by the new language used in the present statutes, the court will consider the AWP laws in their present form in the court's analysis of their validity, rather than adjudicating the validity of repealed statutes. 10 The chiropractic provisions contained in § 304.17A-171 and § 304.17A-170 were left intact by House Bill No. 315 and continue to remain unchanged. 11 The issue of the potential preemption of §§ 304.17A-270 and 304.17A-171(2) by ERISA is therefore properly before this court4. We review a district court's decision to grant summary judgment de novo, applying the same test as that employed by the district court. Wathen v. General Elec. Co., 115 F.3d 400, 403 (6th Cir. 1997). Summary judgment is proper ifthere is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. See Schachner v. Blue Cross & Blue Shield of Ohio, 77 F.3d 889, 892-93 (6th Cir. 1996). II. Preemption 12 We are required by this appeal to define the boundaries of preemption under ERISA § 514 (a) and (b), 29 U.S.C. § 1144(a) and (b). Section 514(a), the preemption provision, reads: 13 Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title (emphasis added). 14 Section 514(b)(2)(A), the "savings" provision, reads: 15 Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking or securities. 16 Section 514(b)(2)(B), the "deemer" provision, reads: 17 Neither an employee benefit plan described in section 1003(a) of this title, which is not exempt under section 1003(b) of this title (other than a plan established primarily for the purpose of providing death benefits), nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. 18 The federal courts have addressed the scope of ERISA's preemption of State law on numerous occasions; however, the wording of the Act combined with the obvious federalism concerns involved have made it difficult to discern clear boundaries. Many courts, including the Supreme Court, have commented on the vexingly broad and ambiguous nature of the provisions.5 Despite such interpretational difficulties, we must determine whether Kentucky Revised Statutes Annotated §§ 304.17A-270 and 304.17A-171(2) (Banks-Baldwin 1999) "relate to" employee benefit plans covered by ERISA. If so, then the provisions are preempted, unless they fall under ERISA's saving clause as laws regulating insurance. 19 ERISA is a comprehensive act designed to regulate employee welfare and pension benefit plans, including those that provide "'medical, surgical, or hospital care or benefits' for plan participants or their beneficiaries 'through the purchase of insurance or otherwise.'" New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 650-51, 115 S. Ct. 1671, 1674, 131 L. Ed. 2d 695, 702 (1995) (discussing and quoting ERISA § 3(1), 29 U.S.C. § 1002(1)). To assure that the regulation of employee welfare benefits would remain an area of exclusive federal concern, Congress passed § 514(a) of ERISA, the preemption provision. 20 The Supreme Court has specifically found that in passing § 514(a) it was Congress' intent: 21 to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government . . ., [and to prevent] the potential for conflict in substantive law . . . requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction. 22 Travelers, 514 U.S. at 656-57, 115 S. Ct. at 1677, 131 L. Ed. 2d at 706 (alteration in original) (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142, 111 S. Ct. 478, 484, 112 L. Ed. 2d 474, 486 (1990)). In discussing the preemption provision, the Court has variously noted its extreme breadth, terming it "clearly expansive," "broad [in] scope," "broadly worded," "deliberately expansive," and "conspicuous for its breadth." California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 324, 117 S. Ct. 832, 837, 136 L. Ed. 2d 791, 799 (1997) (internal citations omitted) (reviewing past Supreme Court case law addressing the scope of ERISA's preemption provision). The preemption provision, however, is not without limits. As the Court noted in Travelers, § 514(a) preempts all state laws that relate to an employee benefit plan covered by ERISA, but, "[i]f 'relate to' were taken to extend to the furthest stretch of its indeterminancy, then for all practical purposes preemption would never run its course." 514 U.S. at 655, 115 S. Ct. at 1677, 131 L. Ed. 2d at 705. 23 Thus, to determine whether a law "relates to" an employee benefit plan, the Court has formulated a two part test, under which a "law 'relate[s] to' a covered employee benefit plan for purposes of § 514(a) if it [1] has a connection with or [2] reference to such plan." Dillingham, 519 U.S. at 324, 117 S. Ct. at 837, 136 L. Ed. 2d at 799 (internal quotations and citations omitted) (emphasis added). The district court found, and plaintiffs argue, that the Kentucky AWP provisions both refer to and have a connection with ERISA covered employee benefit plans.6 We analyze each prong of the "relation to" test in turn. A. Reference To 24 The Supreme Court has provided guidance in several cases as to when a law "refers to" ERISA. In Dillingham the Court summarized its analysis, stating: 25 [W]e have held preempted a law that "impos[ed] requirements by reference to [ERISA],"District of Columbia v. Washington Bd. of Trade, 506 U.S. 125, 130-31 (1992); a law that specifically exempted ERISA plans from an otherwise generally applicable garnishment provision, Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 828 n.2 (1988); and a common-law cause of action premised on the existence of an ERISA plan, Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 140 (1990). Where a State's law acts immediately and exclusively upon ERISA plans, as in Mackey, or where the existence of ERISA plans is essentialto the law's operation, as in Greater Washington Bd. of Trade and Ingersoll-Rand, that "reference" will result in preemption. 26 519 U.S. at 324-25, 117 S. Ct. at 837-38, 136 L. Ed. 2d at 799. 27 In Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 108 S. Ct. 2182, 100 L. Ed. 2d 836 (1988), the Court discussed Georgia Code Annotated § 18-4-22.1 (1982), which specifically exempted ERISA plans from Georgia's general garnishment law. The Court noted that even though Georgia's legislature may have enacted § 18-4-22.1 to help effectuate ERISA's underlying purpose, it would still be preempted if it fell within ERISA's preemption provision. Finding that § 18-4-22.1 was indeed preempted, the Court stated: 28 [A]dhering to our precedents in this area, we hold Ga. Code Ann. § 18-4-22.1, which singles out ERISA employee welfare benefit plans for different treatment under state garnishment procedures, is preempted under § 514(a). The state statute's express reference to ERISA plans suffices to bring it within the federal law's preemptive reach. 29 Mackey, 486 U.S. at 830, 108 S. Ct. at 2186, 100 L. Ed. 2d at 844. In a footnote, the Court indicated that the "different treatment" was illustrated not just by the express reference to ERISA plans in the statute's language, but also in the disparate treatment accorded to non-ERISA pension and benefit plans under Georgia law. See id. at n.4. The effect was that only ERISA welfare benefit plans were singled out for protection under the statute, an impermissible result. 30 The district court in the case at bar relied on Mackey in determining whether Kentucky's AWP statutes referred to an ERISA plan. The district court first observed that under Kentucky's statute, "health benefit plans" were defined to include, among other things, "a self-insured plan or plan provided by a multiple employer welfare arrangement, to the extent permitted by ERISA." Based on this language, the court concluded that "it is clear that the AWP statutes 'refer to' ERISA employee benefit plans." In support, the court cited De Buono v. NYSA-ILA Medical & Clinical Services Fund, 520 U.S. 806, 815, 117 S. Ct. 1747, 1752, 138 L. Ed. 2d 21, 30 (1997), which cited Mackey for the principle that a provision that explicitly refers to ERISA in defining the scope of the state law's application is preempted. 31 The district court noted that the Western District of Kentucky in Community Health Partners, Inc. v. Kentucky, 14 F. Supp. 2d 991 (W.D. Ky. 1998), disagreed with its analysis of the same statute. The Community Health Partners court, relying on language in Dillingham, found that Kentucky's AWP statute did not "refer to" an ERISA plan because the law did not act "immediately and exclusively upon ERISA plans" and because the existence of ERISA plans was not essential to the law's operation. Id. at 995-96. However, the district court in the present case disagreed with the Community Health Partners court, finding that "Mackey makes it clear that when a statute 'singles out ERISA employee benefit plans for different treatment' the statute's 'express reference to ERISA plans suffices to bring it within the federal law's preemptive reach.'" J.A. at 12 n.6. 32 Other courts have reached similar conclusions. The Eighth Circuit in Prudential Insurance Co. of America v. National Park Medical Center, Inc., 154 F.3d 812 (8th Cir. 1998), found that an Arkansas AWP statute containing language comparable to Kentucky's provisions was preempted due to its reference to employee benefit plans covered by ERISA. The court noted that the law expressly stated its provisions "shall not apply to self-funded or other health benefit plans that are exempt from state regulation by virtue of [ERISA]." Id. at 822. Accordingly, the court determined that § 23-99-209 of the Arkansas Patient Protection Act ("PPA") referred to ERISA plans, as it "undeniablymakes an express reference to ERISA and attempts to exclude from coverage of the PPA at least some ERISA plans. Thus it 'singles out ERISA employee benefit plans for different treatment under state [law], [and therefore] is preempted under § [1144(a)].'" Id. at 824 (quoting Mackey). See also Cigna Health Plan of La., Inc. v. Louisiana, 82 F.3d 642, 647-48 (5th Cir. 1996) (concluding that Louisiana's AWP statute, § 2202(5)(c) of the State's Health Care Cost Control Act, which applied to "group purchasers," referred to ERISA qualified plans by defining "group purchasers" to include entities such as "'Taft-Hartley trusts or employers who establish or participate in self-funded trusts or programs' which 'contract [with health care providers] for the benefit of their . . . employees.'"). 33 Although in the recent case of Washington Physicians Service Association v. Gregoire, 147 F.3d 1039 (9th Cir. 1998), cert. denied, 525 U.S. 1141, 119 S. Ct. 1033, 143 L. Ed. 2d 42 (1999), the court found that Washington's "every category of provider" statute did not contain a "reference to" or "connection with" employee benefit plans, the statute at issue is distinguishable from Kentucky's AWP laws. The court noted that by the statute's definition, "health carrier" only included disability insurers, health care service contractors, or health maintenance organizations. See id. at 1043. Employer-sponsored, self-funded plans were excluded not by a provision of the act, but rather by limiting the act's application to only the mentioned entities. As a result, the act contained no reference whatsoever to ERISA-covered employee benefit plans. 34 While a mere reference to an ERISA plan, without more, may not be enough to cause preemption, Supreme Court precedent shows that if such a reference is combined with some effect on those plans, such as singling them out for different treatment, preemption will result. See, e.g., Mackey, 486 U.S. at 830 n.4, 108 S. Ct. at 2186, 100 L. Ed. 2d at 844; cf. District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125, 113 S. Ct. 580, 121 L. Ed. 2d 513 (1992) (finding that a state law that imposes requirements merely by reference to ERISA is preempted). 35 We conclude that Kentucky's AWP statutes "relate to" ERISA plans and are therefore preempted, unless they are found to be statutes that regulate "insurance" under the savings clause of § 514(b)(2)(A). This conclusion also involves consideration of the "deemer" clause, § 514(b) (2)(B), which ensures that ERISA employee benefit plans are not deemed to be engaged in the business of insurance in applying the savings clause. Under the deemer clause, state insurance laws that apply directly to ERISA self-insured plans do not fall within the savings clause and thus are preempted. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S. Ct. 2380, 85 L. Ed. 2d 728 (1985); FMC Corp. v. Holliday, 498 U.S. 52, 111 S. Ct. 403, 112 L. Ed. 2d 356 (1990). 36 The Kentucky legislature, aware of its inability to regulate self-insured ERISA plans, sought to include such plans - as well as multiple employer welfare arrangements (MEWAs) - only "to the extent permitted by ERISA." The effect of this provision is to exclude self-insured ERISA plans from coverage of the statute by virtue of the deemer clause and to include MEWAs only to the extent state regulation is permitted under 29 U.S.C. § 1144(B)(6)7. In Community Health Partners v. Commonwealth of Kentucky, 14 F. Supp. 2d 991 (W.D. Ky. 1998), District Judge McKinley pointed this out in his opinion: 37 The fact that the Kentucky legislature chose to allow for regulation of MEWAs and self-insured plans "to the extent permitted by ERISA" suggests that the legislature was well aware of thepreemptive force of ERISA. As noted by Defendant, the phrase appears merely to restate the "deemer clause" by exempting self-insured ERISA plans from the scope of the AWP statute. The "deemer clause" prevents a state law from "deeming" an employee benefit plan to be an insurance company for the purpose of any law purporting to regulate the business of insurance. 29 U.S.C. 1144 (b)(2)(B). The deemer clause thus effectively prevents states from subjecting self-insured plans to state insurance regulation. On the other hand, insured plans - plans that purchase insurance - are subject to state laws regulating the insurance industry. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 732, 105 S. Ct. 2380, 85 L. Ed. 2d 728 (1985). 38 Id. at 995 n.4. 39 As the Supreme Court noted in UNUM Life Insurance Co. v. Ward, 526 U.S. 358, 367 n.2, 119 S. Ct. 1380, 1386, 143 L. Ed. 2d 462, 472 (1999): 40 Self-insured ERISA plans ... are generally sheltered from state insurance regulation. 41 The Kentucky Act provides that shelter by its exclusion of ERISA self-insured plans from its coverage, but its reference to ERISA plans and its exclusion of self-insured ERISA plans from its coverage clearly bring the statute within the "refer to" prong of the "relate to" analysis. B. Connection With 42 While the fact that the Kentucky statutes "refer to" ERISA employee benefit plans is enough to potentially preempt them on that basis alone, their "connection with" such plans offers an alternative basis for such preemption. Analysis under the "connection with" prong has changed somewhat after the Supreme Court's opinion in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645, 115 S. Ct. 1671, 131 L. Ed. 2d 695 (1995)8. The Travelers Court discussed whether ERISA's preemption provision altered the starting presumption that Congress does not intend to supplant state law. See id. at 654-55, 115 S. Ct. at 1676-77, 131 L. Ed. 2d at 704. While observing that this presumption remained unaltered, the Court recognized that its prior attempts to construe "relate to" did not provide much help drawing the line as to what should be preempted. See id. at 655, 115 S. Ct. at 1677, 131 L. Ed. 2d at 705. The Court concluded that in order to determine whether the normal presumption against preemption has been overcome in a particular case, it "must go beyond the unhelpful text and the frustrating difficulty of defining [§ 514 (a)'s] key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive." Id. at 656, 115 S. Ct. at 1677, 131 L. Ed. 2d at 705. The Court found that the "basic thrust" of the clause was "to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans," and observed that under its past case law it had found ERISA to preempt state laws that mandated employee benefit structures or their administration. Id. at 657-58, 115 S. Ct. at 1677-78, 131 L. Ed. 2d at 706. The use of this approach for "connection with" analysis was subsequently endorsed and used by the Court both in Dillingham and De Buono and recognized by this circuit inDavies v. Centennial Life Insurance Co., 128 F.3d 934 (6th Cir. 1997).9 43 Using the Travelers "connection with" analysis, the district court in the case at bar determined that Kentucky's AWP laws had a connection with ERISA plans. The court found that while the law did not operate directly on ERISA plans, it effectively required benefit plans to purchase benefits of a certain structure, thereby bearing indirectly but substantially on all insured plans. As a result, the court concluded that the AWP statutes did more than just indirectly affect the cost of ERISA plans; the AWP statutes mandated benefit structures. 44 Two other district courts in Kentucky recently drew the same conclusion while addressing the same statute. In Community Health Partners, Inc. v. Kentucky, 14 F. Supp. 2d 991, 1000-01 (W.D. Ky. 1998), the court found Kentucky's AWP provision, located then at § 304.17A-110(3), to be similar in effect to the mandated benefit law in Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 105 S. Ct. 2380, 85 L. Ed. 2d 728 (1985). In Metropolitan, the Supreme Court held that the Massachusetts mandated benefit law "related to" ERISA plans because the statute bore indirectly, but substantially, on all insured employee benefit plans by effectively requiring the plans to purchase mental health benefits when purchasing a certain kind of common insurance policy. See id. at 739, 105 S. Ct. at 2388, 85 L. Ed. 2d at 740. Similarly, the Community Health Partners court believed that the AWP law effectively mandated the benefit structure of ERISA plans and regulated the relationship between traditional ERISA entities, i.e., the plan, the employer, and the plan fiduciaries and beneficiaries. 14 F. Supp. 2d at 997. 45 A recent memorandum opinion, Ward v. Alternative Health Delivery Systems, Inc., 55 F. Supp. 2d 694 (W.D. Ky. 1999), held that § 304.17A-171, which contains regulations of a health benefit plan's use of chiropractic services, including an AWP provision, was preempted by ERISA due to its connection with employee benefit plans. Id. at 701. The judge found that: 46 By specifically prohibiting health organizations from offering networks with limited chiropractic providers, the statute mandates the plan's structure. Moreover, the statute also dictates that all covered participants shall have access to the chiropractor of their choice. This too dictates a certain structure to which an employer's health care plan must succumb. As such this claim also falls within the realm of ERISA preemption. 47 Id. at 699. 48 Some academic literature has suggested that the Supreme Court's post-Travelers case law may represent a "sea change" in the "relation to" analysis; however, neither the Court's nor the circuits' opinions yet confirm this assertion.10 The two appellate courts that have addressed the issue since Travelers both found that the AWP statutes at issue were "connected with" ERISA covered employee benefit plans. See CIGNA Healthplan of La., Inc. v. Louisiana, 82 F.3d 642, 648-49 (5th Cir. 1996); Texas Pharmacy Ass'n v. Prudential Ins. Co. of Am. 105 F.3d 1035, 1037 (5th Cir. 1997). In both of these cases, the courts recognized that under the reasoning of Travelers, state laws that mandate employeebenefit structures are preempted. Finding the AWP statutes at issue did exactly that, both courts concluded that they were trumped by ERISA's preemption provision. Cf. Stuart Circle Hosp. Corp. v. Aetna Health Management, 995 F.2d 500, 502 (4th Cir. 1993) (finding, in a case prior to Travelers, that Virginia's AWP statute related to ERISA covered employee benefit plans because it eliminated an insurer's ability to choose limited provider networks). 49 We are convinced that even after the change of emphasis worked by Travelers on the "connection with" prong of the Supreme Court's "relation to" preemption analysis, the district court in this case was correct in finding that former § 304.17A-110(3) (now § 304.17A-270) and present § 304.17A-171 were both "connected with" ERISA covered plans. They not only affect the benefits available by increasing the potential providers, they directly affect the administration of the plans. 50 The Kentucky statutes in question meet both prongs of the "relation to" analysis and thus are preempted, unless found to be statutes that regulate insurance under the savings clause of § 514(b) (2)(A). III. Insurance Savings Clause 51 Having concluded that Kentucky's AWP laws relate to ERISA covered employee benefit plans, and are thus within the scope of ERISA's preemption provision, the Court must then determine whether the laws fall within ERISA's savings clause. The savings clause states that, "[e]xcept as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking or securities." ERISA § 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)(A). This provision provides a broad and important exception to ERISA's preemption provision, saving state laws that relate to ERISA plans from preemption so long as they "regulate insurance." Much like the preemption provision itself, however, the scope of the savings clause has proved difficult to determine from its sparse language.11 52 The Supreme Court has endeavored to provide guidance on what it means to "regulate insurance," first addressing the issue in Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 105 S. Ct. 2380, 85 L. Ed. 2d 728 (1985), and most recently describing the test in UNUM Life Insurance of America v. Ward, 526 U.S. 358, 119 S. Ct. 1380, 143 L. Ed. 2d 462 (1999), stating: 53 Our precedent provides a framework for resolving whether a state law "regulates insurance" within the meaning of the saving clause. First we ask whether, from a "common sense view of the matter," the contested prescription regulates insurance. Second, we consider three factors employed to determine whether the regulation fits within the "business of insurance" as that phrase is used in the McCarran-Ferguson Act: "first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry." (internal citations omitted). 54 Ward, 526 U.S. at 367-68, 119 S. Ct. at 1386, 143 L. Ed. 2d at 472. 55 The Court noted that the three McCarran-Ferguson factors are "'considerations [to be] weighed' in determining whether a state law regulates insurance" and that "[n]one of these criteria is necessarily determinative in itself." See id. at 373, 119 S. Ct. at 1389, 143 L. Ed. 2d at 476. Therefore, in determining whether Kentucky's AWP laws are saved from preemption by ERISA § 514(b)(2)(A), one must first ask whether as a matter of common sense they regulate insurance, and then look to the McCarran-Ferguson factors as checking points or guideposts to aid the analysis. 56 In Ward, the Court was faced with the question of whether California's notice-prejudice rule12 was preempted by ERISA. The parties had agreed that California's notice-prejudice rule "related to" ERISA covered plans under § 514(a), so the Court had only to determine whether the rule was saved by the insurance regulation savings clause of § 514(b)(2)(A). 526 U.S. at 367, 119 S. Ct. at 1386, 143 L. Ed. 2d at 472. The Court began with the common sense prong of its insurance regulation savings clause test, observing that: 57 The California notice-prejudice rule controls the terms of the insurance relationship by "requiring the insurer to prove prejudice before enforcing proof-of-claim requirements." Cisneros, 134 F.3d at 945. As the Ninth Circuit observed, the rule, by its very terms, "is directed specifically at the insurance industry and is applicable only to insurance contracts." Ibid.; see Brief for United States as Amicus Curiae 12 ("[O]ur survey of California law reveals no cases where the state courts apply the notice-prejudice rule as such outside the insurance area. Nor is this surprising, given that the rule is stated in terms of prejudice to an 'insurer' resulting from untimeliness of notice."). The rule thus appears to satisfy the common-sense view as a regulation that homes in on the insurance industry and does "not just have an impact on [that] industry." Pilot Life, 481 U.S. at 50, 107 S. Ct. 1549. 58 Ward, 526 U.S. at 368, 119 S. Ct. at 1386-87, 143 L. Ed. 2d at 472-73. 59 Ward makes it clear that the most important aspect of the test is whether from a common sense view of the matter the contested statute regulates insurance. The three McCarran-Ferguson factors are of secondary importance, serving only as "checking points" or "guideposts" and not as essential elements. Indeed, in Ward, the Court ignored the first McCarran-Ferguson factor altogether in its analysis of the challenged statute in that case. 60 The Kentucky Act meets the common sense test in that it clearly does regulate insurance. The fact that it includes within its reach HMOs as well as traditional insurance companies does not take it out of the realm of insurance regulation. We agree with the reasoning of the Ninth Circuit in Washington Physicians Service Association v. Gregoire, 147 F.3d 1039 (9th Cir. 1998), in which the Court said: 61 The Washington law is "specifically directed" toward the insurance industry, Pilot Life, 481 U.S. at 50, 107 S.Ct. 1549, because it operates directly on HMOs and HCSCs, entities that are engaged in the business of health insurance. "The primary elements of an insurance contract are the spreading and underwriting of a policyholder's risk." Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 211, 99 S.Ct. 1067, 59 L. Ed.2d 261 (1979), citing 1 G. Couch, Cyclopedia of Insurance Law § 1:3 (2ded.1959)("It is characteristic of insurance that a number of risks are accepted, some of which involve losses, and that such losses are spread over all the risks so as to enable the insurer to accept each risk at a slight fraction of the possible liability upon it."). The only distinction between an HMO (or HCSC) and a traditional insurer is that the HMO provides medical services directly, while a traditional insurer does so indirectly by paying for the service, Anderson v. Humana, Inc., 24 F.3d 889, 890 (7th Cir. 1994), but this is a distinction without a difference. Metropolitan Life, 471 U.S. at 741, 105 S. Ct. 2380 (explaining that nothing in ERISA "purports to distinguish between traditional and innovative insurance laws"); Klamath-Lake Pharmaceutical Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1286-87 (9th Cir. 1983). In the end, HMOs function the same way as a traditional health insurer: The policyholder pays a fee for a promise of medical services in the event that he should need them. It follows that HMOs (and HCSCs) are in the business of insurance. 62 Id. at 1045-4613. In Anderson v. Humana, Inc., 24 F.3d 889, 892 (7th Cir. 1994), the court said: "Because HMOs spread risk - both across patients and over time for any given person - they are insurance vehicles under Illinois law." They are likewise "insurance vehicles" under Kentucky law. 63 It is true that the statutes would reach certain self-insured health care benefit plans that are not under ERISA's protective "deemer" clause, e.g., self-insured government plans and self-insured church plans, because they are excluded entirely from ERISA's coverage under 29 U.S.C. § 1003(b). We do not see this fact, however, as any barrier to a finding that a common sense view is that the statutes regulate insurance. We know of no reason why it is not within the authority of a state in enacting laws dealing with insurance to include within such laws entities that act as self-insurers as well as entities who purchase insurance. As the author of a well-known treatise has said, "Self-insurance has often led courts and legislatures to struggle with the intriguing question of whether a party who has not purchased insurance, effectively acting as its own insurer, should be the equivalent of an insurer." 1 Couch on Insurance 3d § 10.2. It is pointed out that this difficulty in modern practice is frequently removed by express statutory provisions specifying that a particular requirement does or does not apply to self-insured entities. Id. Kentucky has done this by expressly including self-insurers -- to the extent permitted by ERISA -- within the coverage of the statutes in question. 64 The state's regulation of health benefit plans is set forth in Kentucky's Insurance Code (Chapter 304 of Title XXV dealing with Business and Financial Institutions). Subtitle 17A of the Insurance Code deals with health insurers and health benefit plans. Section 304.17A-005 contains the definition of words used in that subtitle. Paragraph 22 provides: 65 "Insurer" means any insurance company; health maintenance organization; self-insurer or multiple employer welfare arrangement not exempt from state regulation by ERISA; provider-sponsored integrated health delivery network; self-insured employer-organized association, or nonprofit hospital, medical-surgical, dental, or health service corporation authorized to transact health insurance business in Kentucky. 66 "Health benefit plan" is also defined, the relevant portion of that definition tracking the above definition of "insurer:""Health benefit plan" means any hospital or medical expense policy or certificate; nonprofit hospital, medical-surgical, and health service corporation contract or certificate; provider sponsored integrated health delivery network; a self-insured plan or a plan provided by a multiple employer welfare arrangement, to the extent permitted by ERISA; health maintenance organization contract; . . . 67 Ky. Rev. Stat. Ann. § 304.17A-005(17). 68 The AWP provision of Kentucky's Insurance Code specifically is directed at "insurers" by providing that: 69 A health insurer shall not discriminate against any provider who is located within the geographic coverage area of the health benefit plan and who is willing to meet the terms and conditions for participation established by the health insurer, including the Kentucky State Medicaid program and Medicaid partnerships (emphasis added). 70 Ky. Rev. Stat. Ann. § 304.17A-270. 71 The chiropractic AWP provision specifically adopts the definition of a health benefit plan as set forth in Kentucky Revised Statutes Annotated § 304.17A-005 and defines "health care insurer" as any entity "authorized by the state of Kentucky to offer or provide health benefit plans, policies, subscriber contracts, or any other contracts of similar nature which indemnify or compensate health care providers for the provision of health care services." Ky. Rev. Stat. Ann. § 304.17A-170(7). 72 The Kentucky AWP laws are thus specifically directed toward "insurers" and the insurance industry and are ones that from a "common sense view" regulate insurance. 73 The fact that the deemer clause prevents ERISA self-insured plans from being considered as engaging in the business of insurance does not mean that self-insured plans, by their nature, do not involve the business of insurance and are beyond the reach of state regulations dealing with insurance. The distinction between plans funded by the purchase of insurance and plans that are funded by employers as self-insured plans results from "a distinction created by Congress in the 'deemer clause,' a distinction Congress is aware of and one it has chosen not to alter." Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. at 747, 105 S. Ct. at 2393, 85 L. Ed. 2d at 745. It is not a distinction based upon a concept that employers who choose to be self-insurers cannot be considered insurers subject to state regulations dealing with insurance. Therefore, the fact that the Kentucky statute reaches self-insurers who are not protected by ERISA's deemer clause does not detract from its characterization as a statute regulating entities engaged in the business of health insurance. 74 As noted earlier, the Kentucky statutes exclude from their scope self-insured ERISA plans. If such a plan provides for a limited group of providers, the AWP laws would not compel a change in that plan, regardless of the nature of the entity administering the plan. It could not be enforced, in our opinion, against the employer who has a self-insured ERISA plan nor against the administrator of such a plan, even if the administrator is an entity, such as an HMO, which would be subject to the statute if it were acting not as a mere administrator but as an insurer of its own plan. In Light v. Blue Cross and Blue Shield, 790 F.2d 1247 (5th Cir.1986), the court rejected the argument that a state law could be enforced against the administrator of a self-insured ERISA plan because the deemer clause, § 514(b)(2)(B), which protects such plans from state regulation, does not expressly include plan administrators among the exempted entities. The court found the fact that administrators of self-insured plans are not mentioned in the deemer clause to be of no significance, and because the state law was preempted, the claim against the administrator of the plan based on that law could not be brought, even though the plan itself provided that the contracts betweenthe employer and the plan administrator would "conform to applicable state laws." The court observed that, "If ERISA preempts state law, there is no applicable state law to which the administrator must conform." Id. at 1248. 75 In Prudential Insurance Company of America v. National Park Medical Center, Inc., 154 F.3d 812 (8th Cir. 1998), the court found that an Arkansas statute that contained an AWP provision did not meet the common sense test because, in part, its scope included "employers and administrators of self-insured plans" (although the statute excluded ERISA self-funded plans). As noted above, however, we do not believe that inclusion of self-insurers not protected by the deemer clause, as well as purchasers of insurance, within the statute's reach in itself removes the statute from being viewed a permissible regulation of insurance based upon "a common understanding of insurance regulation." Also, unlike the Arkansas statute, the Kentucky statutes do not include "administrators of self-insured plans." They are directed towards and limited to health care "insurers."14 76 Texas Pharmacy Association v. Prudential Insurance Company of America, 105 F.3d 1035 (5th Cir. 1997), contains the statement that if a self-insured employer, not subject to the any willing provider statute, "signed up with an HMO or PPO, those organizations would be subject to the statute, even if there is no insurance company involved." Id. at 1039. The court was presumably referring to the HMO or PPO acting as the administrator of the employer's self-funded plan. We believe, however, that, as the court in Light observed, if ERISA preempts the state law with respect to self-funded plans, there is no state law to which the administrator of the self-funded plan must conform. Furthermore, as previously noted, the Kentucky statute is directed toward and applies to only insurers and not to plan administrators. Supra, note 14. A plan administrator that does nothing more than administer the plan of a self-insured employer is not engaged in "the underwriting and spreading of risk," Group Life& Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 221, 99 S. Ct. 1067, 1077, 59 L. Ed. 2d 261, 274 (1979), and in our view, would not be considered an "insurer" of a health benefit plan as that term is used in Kentucky's AWP laws.15 77 In Metropolitan Life, 471 U.S. at 743-44, 105 S. Ct. at 2391, 85 L. Ed. 2d at 743, the Supreme Court said: 78 Congress was concerned [in the McCarran-Ferguson Act] with the type of state regulation that centers around the contract of insurance.... The relationship between insurer and insured, the type of policy which could be issued, its reliability, its interpretation, and enforcement - these were the core of the "business of insurance." [T]he focus [of the statutory term] was on the relationship between the insurance company and the policyholder. Statutes aimed at protecting or regulating this relationship, directly or indirectly, are laws regulating the "business of insurance." SEC v. National Securities, Inc., 393 U.S. 453, 460, 89 S. Ct. 564, 568, 21 L. Ed. 2d 668 (1969). 79 The Kentucky AWP laws deal directly with the relationship between insurers and insureds under health benefit plans. They affect restrictions by the insurers on the number of health care providers available to the insureds under such plans; they increase benefits to the insureds by giving them greater freedom to choose health care providers under the plans; and they are aimed at regulating this insurance relationship. They are part of a comprehensive subtitle of Kentucky's insurance code regulating health benefit plans, and they are, in our view, clearly laws which, in a common sense view of the matter, "regulate insurance" and thus are saved from preemption. 80 Consideration of the three McCarran-Ferguson factors used in the second step of the analysis as "checking points" or "guideposts" does not require a different result. First, although certainly a debatable issue, we agree with the reasoning of the Fourth Circuit in Stuart Circle Hospital Corp. v. Aetna Health Management, 995 F.2d 500 (4th Cir. 1993), that the first factor - "transferring or spreading the policyholder's risk" - is satisfied: 81 There are several components to the "policyholder's risk." They include the types of illness and injury that the insurance contract covers, provision for treatment, and the cost of treatment. The Virginia statute affects the type and cost of treatment available to an insured. If a PPO unreasonably restricts the providers of treatment, even though they meet the insurer's standards, it denies an insured the choice of doctor or hospital that may best suit the insured's needs, unless the insured is willing and able to pay all or part of the cost of the doctor or hospital that is not preferredby the insurer. This is a restriction of the insured's benefits. By its prohibition against unreasonable restriction of providers, the Virginia statute spreads the cost component of the policyholder's risk among all the insureds, instead of requiring the policyholder to shoulder all or part of this cost when seeking care or treatment from an excluded doctor or hospital of his or her choice. 82 Id. at 503. 83 Plaintiffs point out that the Kentucky statutes in question do not require health benefit plans to contract with any additional provider, but only with providers who are willing to meet the network's terms and conditions. While this is unquestionably true, it does not, in our view, change the fact that the statutes open an otherwise closed door, insofar as the availability of health care providers is concerned. Some may choose to go through that door and join the group of providers while others may not, but this does not mean that removal of a restriction on availability of providers is not a benefit conferred on the insureds. It effectively changes the terms of the policy, admittedly not in terms of covered medical conditions, but in terms of covered treatment by health care providers16. 84 While Plaintiffs understandably rely on Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 99 S. Ct. 1067, 59 L. Ed. 2d 261 (1979), in support of their position that the first factor is not present in this case, we believe Royal Drug does not require that conclusion. Unlike the health plans that are the subject of the Kentucky statutes, the insurer in Royal Drug did not restrict the number of providers in question. Blue Cross had offered to enter into a provider agreement with every licensed pharmacy in Texas. The benefit conferred on the insureds by the Kentucky AWP statutes - removal of restrictions on the number of providers - was already present in Royal Drug. The Supreme Court expressly noted, with reference to its discussion of contracts between the insurer and providers, "[t]his is not to say that the contracts offered by Blue Shield to its policyholders, as distinguished from its provider agreements with participating pharmacies, may not be the 'business of insurance' within the meaning of the [McCarran-Ferguson] Act." Id. at 230 n.37, 99 S. Ct. at 1082, 59 L. Ed. 2d at 279. Unlike Royal Drug, policyholders in Kentucky will benefit under their policies by a new change in coverage, insofar as availability of providers is concerned.17 85 The policyholders in Royal Drug were "basically unconcerned with arrangements made between Blue Shield and participating pharmacies." Id. at 214, 99 S. Ct. at 1074, 59 L. Ed. 2d at 270. They paid a fixed price ($2.00) to a participating pharmacy for each prescription, and consequently they were not concerned with Blue Shield's cost for those prescriptions. Similarly, the policyholders in Kentucky are basically unconcernedwith arrangements made between the insurers and participating providers regarding the insurers' cost for the medical services obtained by the insurers. The Kentucky statutes do not seek to change the terms and conditions of those cost arrangements. They merely require that any provider who is willing to meet the same terms and conditions of those arrangements should be allowed to join the list of participating providers. While Kentucky policyholders may be basically unconcerned with the insurers' compensation arrangements with participating providers, it cannot be said that they are unconcerned with a limitation on the number of such providers and the resulting restriction on their freedom of choice in seeking medical treatment.18 86 The Fifth Circuit has also distinguished Royal Drug in its discussion of a prior Texas AWP statute pertaining to pharmacies in Texas Pharmacy Association v. Prudential Insurance Co. of America, 105 F.3d 1035 (5th Cir. 1997), agreeing with the reasoning of the Fourth Circuit in Stuart Circle Hospital Corp. "Unlike the third-party pharmacy agreements in Royal Drug, the prior Texas statute directly regulated the terms of the insurance policy between the insurer and the insured." Id. at 1041. 87 Finally, it should be emphasized, in applying the McCarran-Ferguson factors, that "the focus of McCarran-Ferguson is upon the relationship between the insurance company and its policyholders," and state statutes aimed at regulating that relationship, "directly or indirectly, are laws regulating the 'business of insurance.'" United States Dep't of the Treasury v. Fabe, 508 U.S. 491, 501, 113 S. Ct. 2202, 2208, 124 L. Ed. 2d 449, 459 (1993). In Fabe, the Court held that, "[t]here can be no doubt that the actual performance of an insurance contract falls within the 'business of insurance,' as we understood that phrase in Pireno and Royal Drug." Id. at 503, 113 S. Ct. at 2209, 124 L. Ed. 2d at 461. Furthermore, in Fabe, the Court distinguished Royal Drug on the ground that it was an antitrust law case, and the Court in that case was construing the words, "the business of insurance" contained in the second clause of § 2(b) of the McCarran-Ferguson Act, the antitrust law exemption (see 15 U.S.C. § 1012(b))19. The first clause, which commits laws "enacted by any State for the purpose of regulating the business of insurance" to the States is, according to the Supreme Court, "not so narrowly circumscribed." Id. at 504, 113 S. Ct. at 2209, 124 L. Ed. 2d at 461. 88 The second McCarran-Ferguson factor is, in our view, unquestionably present in this case. The ability of an insured to select a physician of his or her choice to treat a medical condition covered by the insurance is an integral part of the policy relationship between the insurer and the insured. In Ward, the Supreme Courtdealt with a state law which required an insurer to show that it was prejudiced by an untimely proof of claim before it could avoid liability. The Court, as noted earlier, did not even pursue the issue of whether the statute satisfied the first factor - the risk alteration factor - because the other two factors verified the common sense view of the statute as one regulating insurance. The Court specifically rejected the argument that the statute was not such a law because it did not change any substantive terms of the insurance coverage. 89 We reject UNUM's suggestion that because the notice-prejudice rule regulates only the administration of insurance policies, not their substantive terms, it cannot be an integral part of the policy relationship. See Metropolitan Life, 471 U.S. at 728 n.2, 105 S.Ct. 2380 (including laws regulating claims practices and requiring grace periods in catalogue of state laws that regulate insurance). 90 526 U.S. at 375 n.5, 119 S. Ct. at 1390, 143 L. Ed. 2d at 477. 91 In Plaintiffs' view, the second factor is not satisfied because the AWP provisions leave the contract terms between the insurer and the insured unaltered, the medical risks remain the same, and even if an insured's provider decides to join the insured's network, the medical coverage remains the same. While it is admittedly true that the AWP laws do not change the substantive terms of the insurance coverage, it is not necessary that the statutes do this before they can be found to be statutes regulating insurance. Id. Kentucky's AWP laws do, however, directly impact the insurer-insured relationship because they affect restrictions on the network of providers available for treatment under the plan and they directly affect the administration of the plan. As in Ward, the statutes effectively create a mandatory contract term dealing with the manner in which the plan is administered by expanding covered treatment from a closed pool of providers to an open pool of providers. As the Fourth Circuit said in Stuart Circle Hospital Corp., 995 F.2d at 503, "We repeat, treatment and cost are important components of health insurance. Regulations governing these components, such as the Virginia statute, are integral parts of the relationship between insurer and insured." In our view, the second McCarran-Ferguson factor is clearly satisfied. 92 We also conclude that the third factor - the statute's limitations to entities within the insurance industry - is satisfied. For reasons stated earlier, we believe that entities such as HMOs and self-insurers are engaged in the business of insurance along with the more widely recognized and more traditional commercial insurance companies, and that entities acting solely as plan administrators and not as "health insurers" are not within the scope of the statute. As District Judge McKinley pointed out in Community Health Partners: 93 Whatever difference in form or structure that exists as between traditional insurance companies and HMOs, MEWAs, and provider-sponsored integrated health delivery networks is insufficient to establish that Kentucky's AWP law is not limited to entities within the insurance industry. To hold otherwise would require the Court to recognize form over substance and to refuse to recognize the natural evolution of the health insurance industry. Cf. SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 71, 79 S. Ct. 618, 3 L. Ed. 2d 640 (1959) (We realize that life insurance is an evolving institution. Common knowledge tells us that the forms have greatly changed even in a generation. And we would not undertake to freeze the concepts of "insurance". . . into the mold they fitted when these Federal Acts were passed.) 14 F. Supp. 2d at 1003-04.20 94 It must be reiterated and emphasized that the three McCarran-Ferguson factors are not required to be satisfied before astate law can be found to be a law regulating insurance. They are, as the Supreme Court pointed out in Ward, nothing more than "checking points" or "guideposts." The basic test is whether, from a common sense view, the Kentucky AWP laws in question regulate insurance. We conclude, as did the two Kentucky District Judges who carefully considered this question, that they do. IV. Conclusion 95 With respect to Kentucky's AWP statute, Kentucky Revised Statutes Annotated § 304.17A-270 (Banks-Baldwin 1999), and Kentucky's chiropractic AWP statute, Kentucky Revised Statutes Annotated § 304.17A-171(2) (Banks-Baldwin 1999), the judgment of the district court is affirmed. Because the district court opinion does not discuss the additional requirements imposed by provisions (1) and (3)-(8) of § 304.17A-171, dealing with chiropractors and health benefit plans, this case is remanded to the district court for consideration in the first instance of the issue of their preemption by ERISA.21 Notes: * Honorable John D. Holschuh, United States District Judge for the Southern District of Ohio, sitting by designation. 1 Section 304.17A-170(1) states that "health benefit plan" has the same meaning as in § 304.17A-005, which provides in pertinent part: "Health benefit plan" means any hospital or medical expense policy or certificate; nonprofit hospital, medical-surgical, and health service corporation contract or certificate; provider sponsored integrated health delivery network; a self-insured plan or a plan provided by a multiple employer welfare arrangement, to the extent permitted by ERISA; health maintenance organization contract; or any health benefit plan that affects the rights of a Kentucky insured and bears a reasonable relation to Kentucky, whether delivered or issued for delivery in Kentucky . . . . § 304.17A-005(17) (Banks Baldwin 1999). 2 The "any willing provider" provision of § 304.17A-171(2) states: A health benefit plan that includes chiropractic benefits shall: (2)Permit any licensed chiropractor who agrees to abide by the terms, conditions, reimbursement rates, and standards of quality of the health benefit plan to serve as a participating primary chiropractic provider to any person covered by the plan. 3 Specifically, health benefit plans are required to: include all primary chiropractic providers who are selected by a person covered by the plan; allow participants direct access to chiropractors of their choice without referral from a gatekeeper; appoint a chiropractor as a gatekeeper for the provision of chiropractic services when the plan uses gatekeepers; refrain from discriminating in reimbursement rates between chiropractors; refrain from promoting or recommending any chiropractor to a covered person; assure adequate numbers of providers are included in the plan; and make listings of participating chiropractors available to covered persons on a regular basis. § 304.17A-171(1) & (3)-(8). The district court apparently limited its analysis to Kentucky's "Any Willing Provider" provisions, the general provision being located at § 304.17A-110(3) and the specific chiropractic provision being located at § 304.17A-171(2). The district court noted that the chiropractic statute imposed additional requirements, beyond those imposed by the general "any willing provider" statute, but because both statutes "similarly define 'health benefit plan'" the court referred to those statutes collectively. J.A. at 35. Because the court never explicitly addressed provisions (1) and (3)-(8) of § 304.17A-171, the chiropractic statute, we will remand the issue of their preemption for consideration in the first instance by the district court. 4 The appeal taken from Community Health Partners v. Commonwealth of Kentucky, 14 F. Supp. 2d 991 (W.D. Ky. 1998), raised the question of whether § 304.17A-110(3) (replaced by § 304.17A-270) was preempted under ERISA and was argued the same day as this case. As a result, this opinion will necessarily dictate the outcome of that case as well. 5 See, e.g., California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 335-36, 117 S. Ct. 832, 843, 136 L. Ed. 2d 791, 805-06 (1997) (Scalia, J., concurring) (noting that the Court had taken 14 previous cases regarding ERISA preemption, and suggesting that neither the Court's prior decisions, nor its present one, succeeded in bringing clarity to the law); New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656, 115 S. Ct. 1671, 1677, 131 L. Ed. 2d 695, 705 (1995) (remarking on the unhelpful nature of the statute's text and the frustrating difficulty of defining its key terms); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S. Ct. 2380, 2389, 85 L. Ed. 2d 728, 740 (1985) (observing that the provisions were "not a model of legislative drafting"); Prudential Ins. Co. of Am. v. National Park Med. Ctr., Inc., 154 F.3d 812, 818 (8th Cir. 1998) (comparing efforts to discern the scope of ERISA preemption to unraveling the fabled Gordian knot). 6 The Western District of Kentucky in Community Health Partners, Inc. v. Kentucky, 14 F. Supp. 2d 991, 995-1001 (W.D. Ky. 1998), also found the AWP provisions "related to" ERISA plans, but only under the "connection with" prong of the "relation to" analysis. That court did not believe that the statute referred to ERISA plans in the manner that Supreme Court precedent requires for preemption under the "reference to" prong. Specifically, the court believed that under Dillingham, a law will only "refer to" an ERISA plan for preemption purposes if it "acts immediately and exclusively upon ERISA plans" or "where the existence of ERISA covered plans is essential to the law's operation." Id. at 995-96. We disagree with the district court's "reference to" analysis for the reasons set forth in this opinion. 7 29 U.S.C. § 1144(B)(6) permits state laws that regulate insurance to apply to MEWAs under the circumstances set forth in that section. 8 In De Buono v. NYSA-ILA Medical & Clinical Services Fund, 520 U.S. 806, 117 S. Ct. 1747, 138 L. Ed. 2d 21 (1997), the Court explained its change in focus, stating that its earlier ERISA cases had not required a fine analysis of the scope of ERISA's "relate to" language, because the state laws at issue had a clear "connection with or reference to" ERISA benefit plans. De Buono, 520 U.S. at 813, 117 S. Ct. at 1751, 138 L. Ed. 2d at 28-29. The Court explained that in Travelers, however, it was forced to confront directly whether ERISA's "relates to" language altered the normal starting presumption that Congress does not intend to supplant state law. See id. 9 In changing its "relate to" analysis in Travelers, the Court appears to have been addressing only the "connection with" prong, as its statements in later cases indicate the "reference to" prong was unaffected. See De Buono, 520 U.S. at 815 n.15, 117 S. Ct. at 1752, 138 L. Ed. 2d at 30; Dillingham, 519 U.S. at 324, 117 S. Ct. at 837, 136 L. Ed. 2d at 799. 10 While Justice Scalia has suggested that the Court should really be applying field preemption, rather than the express preemption test it has created for analyzing ERISA's preemption provisions, Dillingham, 519 U.S. at 335-36, 117 S. Ct. at 843, 136 L. Ed. 2d at 806 (1997) (Scalia, J., concurring), absent further direction from the whole Court on this issue we must continue to apply the traditional analysis. 11 See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739-40, 105 S. Ct. 2380, 2389, 85 L. Ed. 2d 728, 740 (1985), in which the Court stated: [T]he sphere in which § 514(a) operates was explicitly limited by § 514(b)(2). The insurance savings clause preserves any state law "which regulates insurance, banking, or securities." The two pre-emption sections, while clear enough on their faces, perhaps are not a model of legislative drafting, for while the general preemption clause broadly pre-empts state law, the saving clause appears broadly to preserve the States' lawmaking power over much of the same regulation. While Congress occasionally decides to return to the States what it has previously taken away, it does not normally do both at the same time. 12 The rule states, "a defense based on an insured's failure to give timely notice [of a claim] requires the insurer to prove that it suffered actual prejudice. Prejudice is not presumed from delayed notice alone. The insurer must show actual prejudice, not the mere possibility of prejudice." Ward, 526 U.S. at 366-67, 119 S. Ct. at 1386, 143 L. Ed. 2d at 472. 13 As noted earlier, the Ninth Circuit in Gregoire found that the Washington statute did not come within the scope of ERISA's pre-emption clause. Nevertheless, the Court found that, even if it did, the statute dealt with the regulation of insurance and would therefore be saved from pre-emption. 14 The dissent contends that Kentucky's AWP provisions apply to third parties that a self-insured ERISA plan hires to administer its plan benefits. This contention, however, is based upon the dissent's reading of the repealed Kentucky statutes which prohibited "health care benefit plans" from discrimination and defined health benefit plans as including a health service corporation contract and a health maintenance organization contract. The present Kentucky statutes eliminate any ambiguity as to whether administrators under contracts with benefit plans are included within the scope of the statutes. They obviously are not. The current Kentucky statute prohibits only "a health insurer" from discrimination. Ky. Rev. Stat. Ann. § 304.17A-270. As the defendant correctly notes, "the new statute refers to health insurers which shall not discriminate among providers rather than health care benefit plans which strengthens Appellee's arguments that the AWP law regulates insurance." Brief of Defendant-Appellee, p. 3 n.5. An entity that merely administers a plan for a health insurer and does not participate in the underwriting of the risk is not an "insurer" and is not within the scope of Kentucky's current statutes which are, by their express terms, directed solely at health insurers. This is acknowledged by the defendant: The statutes establish that health insurers, which assume financial risk, cannot discriminate against qualified providers. Therefore, although the statute tenuously affects the relationship between insurers and providers, its focus is on the contractual relationship between the insurer and the insured. Brief of Defendant-Appellee, p. 18. Thus, under the current AWP statute, the insurer of a plan, including a self-insurer of a non-ERISA benefit plan, must not discriminate against qualified providers, and any health benefit plan of such insurer must conform to the statute. While not included as an entity subject to the statute, a plan administrator would necessarily be required to comply with the plan's non-discriminatory requirement. With respect to self-insured ERISA benefit plans, the insurer of such plans is beyond the scope of the statute by its express terms, and the administrators of such plans who act solely as administrators and not as insurers are likewise beyond the scope of the statute because of its application only to health insurers. 15 The dissent believes that the majority is "apparently saying that the law is clearly preempted and not saved insofar as it applies to plan administrators, and then arguing that due to this preemption, the statute does not apply to entities outside the insurance industry." According to the dissent, this is an "attempt to dissect Kentucky's AWP provisions, dismissing some of the provision's applications as preempted and then applying saving clause analysis only to those applications it wishes to retain." This is a misreading of the majority opinion. The majority does not say that the Kentucky statutes are preempted insofar as plan administrators are concerned. The majority is saying that insofar as self-insured ERISA plans are concerned, the Kentucky AWP laws could not be enforced against a plan administrator, as a matter of law, under the reasoning of Light, because if the law is preempted with respect to self-insured plans, "there is no applicable state law to which the administrator must conform." More importantly, however, is the fact that the present Kentucky AWP statute, Ky. Rev. Stat. Ann. § 304.17A-270, prohibits only health insurers from discrimination and would have no application to an entity acting merely as an administrator of an insurer's plan. Although the chiropractic statute still refers to a prohibition against "health benefit plans" discrimination, Ky. Rev. Stat. Ann. § 304.17A-171(2), the majority believes that, properly construed, this encompasses insurers of health benefit plans and not mere administrators of such plans. 16 The dissent characterizes this conclusion as "mysterious." There is no mystery, however, in the undeniable fact that there is a difference between a closed network of providers chosen by the insurer and an open network of providers consisting of all providers - including providers preferred by the insured patients - who are willing to agree to the same terms as the other network providers. It is an extremely significant difference and one which not only changes the conditions of the plan but, by opening an otherwise closed door, expands the potential for inclusion of additional equally competent medical providers. It is in this sense that the AWP laws change "the terms of covered treatment by health care providers." 17 In American Drug Stores, Inc. v. Harvard Pilgrim Health Care, Inc., 973 F. Supp. 60 (D. Mass. 1997), the court, in considering a Massachusetts AWP statute, distinguished Royal Drug on the ground that, "[b]y directing insurers to open their networks, the Act should affect the availability of benefits to insureds by increasing their ability to select pharmacies of their choice. This does concern the relationship between insurer and policyholder, and thus may be considered part of the business of insurance." Id. at 71-72. 18 The dissent states that, "It is true that the AWP laws would likely force insurers to pay higher rates." The economic effect of the AWP laws in question, however, is speculative at best. As one commentator has noted, "While AWP legislation could remove some of the incentive for health care providers to substantially discount their fees, provider reaction will most likely differ according to the number of MCOs (managed care organizations) and providers present in each market." James W. Childs, Jr., You May Be Willing, But Are You Able?: A Critical Analysis of "Any Willing Provider" Legislation, 27 Cumb. L. Rev. 199, 210 (1996-1997). The same author reports that, insofar as any increase in consumer cost is concerned, there is some evidence that health care costs have not risen in those states that have enacted AWP legislation. Id. at 212. The possible economic effect on insurers must be weighed against "... the fact that managed care threatens Americans' right to freely choose their provider, and AWP legislation protects that right." Id. at 217-218. In any event, the decision of the Kentucky legislature to enact AWP laws is one left to the wisdom of that deliberative body, and the possible economic ramifications of its AWP laws should not concern this court. 19 The Court in Royal Drug said, "It is well settled that exemptions from the antitrust laws are to be narrowly construed." 400 U.S. at 231, 99 S. Ct. at 1083, 59 L. Ed. 2d at 280. 20 In American Drug Stores, Inc. v. Harvard Pilgrim Health Care, Inc., 973 F. Supp. 60 (D. Mass. 1997), a Massachusetts AWP statute, unlike the Kentucky AWP laws, did not exclude ERISA self-insured plans from its coverage. Because such plans are not insurers under the "deemer" clause, the argument was made that the state statute was not directed specifically toward the insurance industry. In rejecting this argument, the court noted that, with reference to ERISA self-insured plans, "any decision holding that the Act is saved from preemption by the insurance saving clause would have to recognize that the Act could not apply to the provision of services to self-insured plans. Because the Act would not apply to these uninsured relationships, it is unnecessary to consider whether the Act would lose its status as an insurance regulation because it purports to cover these relationships." Id. at 71 n.9. The court also pointed out that in Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 105 S. Ct. 2380, 85 L. Ed. 2d 728 (1985), the fact that the state statute "applied by its terms to self-insured plans did not prevent the Supreme Court from concluding that the statute was limited to the insurance industry. Instead, the deemer clause simply prevented application of the statute to self-insured plans." Id. (internal citations omitted). 21 Having concluded that Kentucky's AWP statutes are valid, there is no reason for the majority opinion to discuss any question of severability. The dissent, however, in discussing the question of severability, states that the majority "fails to mention, let alone discuss, how it severs Kentucky's AWP provision in such a manner that it no longer applies to third party plan administrators performing administrative functions for self-insured plans, thereby allowing it to conclude that the provision is saved in all other applications." As noted earlier, supra, note 15, this is a misreading of the majority opinion. The majority does not hold that the AWP statutes are preempted as applied to administrators of ERISA self-insured plans. It holds, instead, that because the statutes exclude ERISA self-insured plans, they could not be applied against an administrator of such plans under the reasoning of Light and, more importantly, they prohibit only health insurers from discrimination and, therefore, exclude entities that act solely as administrators of the insurer's health benefit plan. 96 KENNEDY, Circuit Judge, dissenting. 97 I write separately with respect to Part III of the majority's opinion to dissent from the majority's conclusion that Ky. Rev. Stat. Ann. §§ 304.17A-2701 and 304.17A-171(2) (Banks-Baldwin 1995) fall within ERISA's insurance savings clause. I believe that Kentucky's any willing provider laws have little to do with insurance and are not saved from preemption by ERISA's Insurance Savings Clause as they do not regulate insurance as a matter of common sense and fail all three of the McCarran-Ferguson factors. I. Insurance Savings Clause A. 98 The district court in the case at bar devoted only a sentence to the commonsense test, merely concluding that, "the common-sense view is that the AWP statutes regulate the business of insurance."2 Instead the court spent most of its time analyzing the McCarran-Ferguson factors, which significantly overlap the common sense test, being designed largely to guide a court's common sense determination. See Unum Life Ins. of Am. v. Ward, 119 S. Ct. 1380, 1389 143 L. Ed. 2d 462 (1999). 99 As the Supreme Court has generally started its savings clause analysis with the common sense test, I begin there as well. See id. at 1386; See also Davies 128 F.3d 940-941 (6th Cir. 1997). In doing so, I conclude that the Kentucky AWP laws do not meet the common sense test because they are directed at the contracts between benefit plans and third parties, rather than being specifically directed at the insurance industry. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987) (concluding that to fall within the savings clause a law must be specifically directed at the insurance industry, which in part requires that the law define the terms of the relationship between the insurer and the insured, rather than the insurer and a third party). The laws do not change the relationship between the insurer and insureds, as the same medical conditions are covered after the AWP laws as were insured before the passage of these provisions. The underwriting of risk, the traditional earmark of insurance, see Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 211-12, 99 S. Ct. 1067, 1073-74, 59 L. Ed. 2d 261 (1979), is in no way affected. Insureds are not free to attend the provider of their choice, as the AWP laws merely require employee benefit plans to accept previously excluded doctors that are qualified, willing to join the plan, and agree to abide by its terms. 100 Contrary to the majority's assertions, I believe it is also apparent that Kentucky's AWP laws clearly target more than just members of the insurance industry3. By their terms, Kentucky's AWP laws apply to non-ERISA covered self-insured plans by defining health benefit plans to include "a self-insured plan . . . to the extent permitted by ERISA." §§ 304.17A-100(4)(a) and 304.17A-170(1). This definition includes self-insured plans not regulated by ERISA, such as government plans and church plans, which ERISA excludes from its coverage. See 29 U.S.C. § 1003 (b). The result is that these self-insured plans, which, as a matter of common sense oughtto be considered as operating outside the insurance industry, are subject to Kentucky's AWP laws. C.f. Cigna Health Plan of La., Inc. v. Louisiana, 82 F.3d 642, 649 (5th Cir. 1996) (concluding that the statute was not saved as an insurance regulation because it was not limited to entities in the insurance industry as it applied to entities such as self-funded organizations, Taft-Hartley Trusts, or employers who establish and participate in self-funded trusts or programs as well as various intermediaries); Blue Cross & Blue Shield of Alabama v. Neilsen, 917 F. Supp. 1532, 1538-39 (N.D. Ala. 1996) (holding that Alabama's AWP statutes did not regulate insurance as a matter of common sense because they applied to all employee benefit plans, including self-funded plans, and were thus not specifically directed toward the insurance industry) (vacated in part on appeal by Blue Cross & Blue Shield of Alabama v. Neilsen, 142 F.3d 1375 (11th Cir. 1998) due to mootness after the Alabama Supreme Court determined in a certified question that the law at issue did not apply to plaintiff); Stuart Circle, 995 F.2d at 503-04 (concluding that the AWP statute at issue, which only applied to insurance companies actively issuing insurance policies, met the common sense test as a law regulating insurance). 101 Significantly, the AWP provisions also apply to third parties that a self-insured ERISA plan hires to administer its plan benefits. As used in §§ 304.17A-110(3) and 304.17A-171, "health benefit plan" also includes Hospital, Health Service Corporation, and HMO contracts.4 Section 304.17A-270 uses the term "Health Insurer" instead of "Health Benefit Plan," but similarly defines it to include any Insurance Company, HMO, or HSC.5 Thus, Kentucky's AWP laws, by there very terms, prohibit all HMO's, HSC's and Insurance Companies from "discriminat[ing] against any provider who is located within the geographic coverage area of the health benefit plan . . . ." See §§ 304.17A-110(3) and 304.17A-171. The AWP laws would clearly apply to HMOs, HSCs, or Insurance Companies providing plan administration services, as there is nothing in the statute that would exclude them in such a scenario. 102 Although HMOs, HSCs, and Insurance Companies may accept risk in some situations, as third party administrators they would merely be contracting to handle paperwork and plan administration for a self-insured ERISA plan. While handling such administrative duties, however, these entitieswould be forced by Kentucky's AWP laws to accept any willing provider into the plan, even though they were not underwriting any risk. The law in this instance is not directed at the business of insurance, as no insurance is involved. See Prudential Ins. Co., 154 F.3d at 829 (observing that the Arkansas AWP statute at issue defined health benefit plans so broadly as to include plan administrators and thus did not fit within a common sense view of a law directed specifically toward the insurance industry); Texas Pharmacy Ass'n v. Prudential Ins. Co. of America, 105 F.3d 1035, 1039 (5th Cir. 1997) (noting that a self-insured employer would not be subject to Texas' AWP statute, "but if the employer signed up with an HMO or PPO, those organizations would be subject to the statute, even if there is no insurance involved"); Cigna Health Plan of La., Inc. 82 F.3d at 649 (concluding that Louisiana's AWP law was obviously not limited to entities within the insurance industry, in part because it applied to "health care financiers, third party administrators, providers, or other intermediaries"). The only risk underwritten is that accepted by the ERISA self-insured plan, which under the "deemer clause" of ERISA § 514 (b)(2)(B), 29 U.S.C. § 1144(b)(2)(B), cannot be treated as an insurance company for the purposes of state regulation. See FMC Corp. v. Holliday, 498 U.S. 52, 61, 111 S. Ct. 403, 409, 112 L. Ed. 2d 356 (1990); Texas Pharmacy Ass'n, 105 F.3d at 1039. The common sense conclusion that can be drawn from the AWP statute's coverage of entities clearly operating outside of the business of insurance is that the statute is concerned generally with regulating provider access to networks rather than specifically regulating the business of insurance.6 See Prudential Ins. Co., 154 F.3d at 829 (concluding that the AWP law at issue was "not a law directed at the insurance industry at all, but a law directed at regulation of broadly defined health benefit plans, only some of which fall within the insurance industry"). 103 The majority seeks to refute this conclusion by arguing that Kentucky's AWP law would not apply to entities performing only plan administration for self insurers, apparently on the grounds that to the extent that Kentucky's AWP law seeks to do so, they would be preempted by ERISA. In support the majority cites Light v. Blue Cross and Blue Shield of Alabama, Inc., 790 F.2d 1247, 1248 (5th Cir.1986), which holds that state laws which apply to administrators of self insured plans may be preempted by ERISA and "if ERISA preempts state law, there is no applicable state law to which the administrator must conform." Other courts have drawn a similarly unremarkable conclusion. See Insurance Bd. Under Social Ins. Plan of Bethlehem Steel Corp. v. Muir, 819 F.2d 408, 410-13 (3d Cir. 1987) (concluding that Blue Cross and Blue Shield, which provided plan administration services for a self-insured employee benefit plan, were not engaged in the business of insurance and therefore that the state mandated benefit laws were preempted with respect to not only the underlying self-insured plan, but also the plan administrators). 104 Light, however, is inapposite to the proposition the majority ultimately seeks to advance, that is, if Kentucky's AWP law does not apply to self-insurers, a fortiori, it also does not apply to entities administering the self-insured plan. The employee benefit plan at issue in Light contained a provision stating that "the contracts between South Central Bell and the plan administrator necessarily will conform to applicable state laws." Id. at 465. Plaintiffs argued that since the plan adopted state law, the plan administrator was required to comply with that law. The Fifth Circuit began by noting that if ERISA preempted state law, there would be no state law for the administrator to conform to.The court then turned to Plaintiffs' argument that the preemption provision of 29 U.S.C. § 1144(a) should not be read to apply to plan administrators. Plaintiffs asserted that because their action was against a plan administrator, it did not relate to an employee benefit plan, and therefore was not preempted. The court found no merit in plaintiffs' argument because, "[a]bsent ERISA the state common law on which [plaintiffs] rely would provide causes of action for the improper handling of claims under benefit plans," giving the law a "direct connection" with employee benefit plans. Id. at 1249. As a consequence, the court found § 1144 preempted plaintiffs' state causes of action with respect to the administrator of their self-insured plan as well. Id. 105 In the case at bar, the majority states that based in part on reliance on Light, it does not believe that Kentucky's AWP law could be enforced against plan administrators of self-insured plans. The majority appears to arrive at this conclusion due to its belief that, as in Light, Kentucky's AWP statute would be preempted insofar as it applies to plan administrators, given that Kentucky's AWP statute "relates to" employee benefit plans. However, having concluded that the entire AWP provision is preempted, the majority fails to apply savings clause analysis to the entire AWP provision. As I have discussed, Kentucky's law, by its very terms, does attempt to regulate entities outside the insurance industry, through its regulation of HMO and HSC and Insurance Company contracts, which would include contracts purely for plan administration. The majority attempts to ignore this fact by summarily concluding that the law would not apply to plan administrators. However, in doing so the majority is apparently saying that the law is clearly preempted and not saved insofar as it applies to plan administrators, and then arguing that due to this preemption, the statute does not apply to entities outside the insurance industry. The majority cites no authority for its attempt to dissect Kentucky's AWP provisions, dismissing some of the provision's applications as preempted and then applying saving clause analysis only to those applications it wishes to retain. In applying the common sense test we should be looking at the whole provision, not determining whether portions of a provision are saved in some, but not all scenarios. 106 In sum, unlike Ward, where the notice-prejudice rule was by its very terms "directed specifically at the insurance industry and [was] applicable only to insurance contracts," 119 S. Ct. at 1386, Kentucky's AWP laws clearly apply to entities and contracts outside the insurance industry.7 As a result, I must conclude that §§ 304.17A-110(3) and 304.17A-171(2) do not "satisfy the commonsense view as . . . regulation[s] that hone in on the insurance industry" but rather the provisions "just have an impact on [that] industry." See Ward, 119 S. Ct. at 1387 (quoting Pilot Life, 481 U.S., at 50, 107 S.Ct. at 1554). B. 107 Next I "consider [the] three factors employed to determine whether the regulation fits within the 'business of insurance' as that phrase is used in the McCarran-Ferguson Act: first whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry." Ward, 119 S.Ct. at 1386 (internal citations and quotations omitted). The McCarran-Ferguson factors only serve to reinforce my conclusion that Kentucky's AWP laws are not saved from preemption by ERISA § 514(b). While none of the McCarran-Ferguson factors should be seen as dispositive, they provide helpful guideposts for savings clause analysis, lending depth and guidance to the common sense test, particularly in difficult cases such as the one we are presented with. See Ward 119 S. Ct. at 1389. With this understanding I begin by considering whether Kentucky's AWP laws have the effect of transferring or spreading policyholder risk. 108 Appellees argue, and the majority agrees, that the district court was correct in finding that Kentucky's AWP laws spread policyholder risk. The district court reached this conclusion because it believed the laws were similar to the mandated benefit laws that the Supreme Court found to spread risk in Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985). According to the district court, risk was spread because Kentucky's AWP laws made it more likely that an insurer would cover a visit to a provider that the policyholder may have paid to visit on his or her own, due to the policyholder's preference for that particular provider. 109 I disagree with the district court's attenuated risk spreading analysis and find its analogy to Metropolitan Life to be misplaced. Metropolitan Life involved a Massachusetts law which required insurers to provide certain minimum mental health benefits to Massachusetts residents. Id. at 724, 105 S. Ct. 2380. While applying the McCarran-Ferguson factors to the Massachusetts law, the Supreme Court concluded that risk was being spread because the statute was intended "to effectuate the legislative judgment that the risk of mental-health care should be shared." Id. at 743, 105 S. Ct. 2391. 110 Mandated benefit laws like the one at issue in Metropolitan Life require an insurer to treat individuals with health care conditions that may not have been covered before the law. The effect of such laws is to shift a significant degree of risk from individuals who originally had no such coverage under the insurance policy, to the insurer. Although a closer question, the same can likely be said for mandated provider laws. Under such laws, an insurance company must provide coverage for treatment from any category of provider,8 which typically broadens insurance coverage to include forms of alternative medicine (e.g., chiropractic, massage therapy, acupuncture) not previously covered under the policy. The Ninth Circuit confronted such a law in Washington Physicians Serv. Ass'n v. Gregoire, 147 F.3d 1039 (1998). In analyzing whether the law fell under the savings clause as a law regulating insurance, the court began by recognizing that: 111 Because insurance is the business of spreading risk, Royal Drug, 440 U.S. at 205, 99 S. Ct. 1067, a state law that regulates the relationship between a carrier and a provider without affecting the risk borne by the insured is outside the definition of insurance regulation. Id. at 213-214, 99 S. Ct. 1067; Hahn v. OregonPhysicians Serv., 689 F.2d 840, 843-844 (9th Cir. 1982). 112 Id. at 1045. The court concluded, however, that by expanding the kinds of treatment that an insurer must cover to include various types of alternative medicine, the risk that the insured might need alternative medical treatment was shifted to the insurance company. See Gregoire, 147 F.3d at 1046. In reaching this conclusion, the court distinguished Washington's mandatory provider law from AWP laws, noting that the mandatory provider statute did not require any carrier to contract or deal with any particular provider; instead it merely forbade a carrier from excluding a particular class of provider. See Gregoire 147 F.3d at 1046.9 113 AWP statutes such as Kentucky's are different in purpose and effect than either the mandatory benefit or mandatory provider statutes respectively at issue in Metropolitan Life and Gregoire. Rather than shifting risk from policyholders to insurers, Kentucky's AWP statutes merely prohibit benefit plans from excluding qualified providers who want to join the plan's provider network and are able to meet the plan's requirements. The risk assumed by the benefit plan under its policy, that the policyholder will require medical treatment, remains unaltered. The statute's passage in no way alters the terms of the policyholder's policies.10 The only contracts affected are those between the benefit plan and the providers already in the plan network. Kentucky's AWP laws do not require that a single doctor be added to any benefit plan network; benefit plans may still maintain provider networks which require doctors to meet certain terms before joining and the plans may still require that policyholders see plan doctors for their medical costs to be covered. See Gary A. Francesconi, Erisa Preemption of "Any Willing Provider" Laws-An Essential Step Toward National Health Care Reform, 73 Wash. U. L.Q. 227, 248-49 (1995) (observing that with or without the any willing provider law, the insured's access to certain providers is limited by the policy). 114 While doctors who meet the plans qualifications may independently decide to join the plan and the plan must accept them, many doctors may not meet the plan's qualifications or may have no desire to join that particular plan. For example, in an area with multiple benefit plans, a relatively small percentage of additional qualified doctors may decide to join any particular plan network. In such a scenario, many doctors may already be members of several plan networks and may have no desire to enroll in additional networks. Even those qualified doctors who were previously excluded from all the plans in such an area would be unlikely to join every plan after the AWP law. The result is that although Kentucky's AWP laws make it marginally more likely that a policyholder's benefit plan network will contain their preferred doctor,11 they will still be restricted to the doctors in their benefit plan network regardless of the membership or nonmembership of their preferred doctor. 115 The Supreme Court discussed the transfer of policyholder risk in detail in GroupLife & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 99 S. Ct. 1067, 59 L. Ed. 2d 261 (1979). The Court was considering whether agreements between Blue Shield and participating pharmacies concerning the price that policyholders would pay for prescriptions, constituted the business of insurance. Under the agreements, the participating pharmacies would fill any Blue Shield policyholder's prescription for a two-dollar charge. See id. at 209, 99 S. Ct. at 1072. The pharmacy was then entitled to reimbursement from Blue Shield for the cost of acquiring the drugs prescribed. See id. The Court found that, under the antitrust exemption provision of the McCarran-Ferguson Act, 15 U.S.C. § 1012(b), the arrangement did not constitute the "business of insurance" because Blue Shield's agreement with the pharmacies merely limited the amount that it would have to pay to cover its policyholder risks. See id. at 214-15, 99 S. Ct. at 1075. While realizing that the policyholders might ultimately benefit in the form of lower rates charged by Blue Shield, the Court concluded that no additional policyholder risks were being underwritten. Instead, the Court saw the agreements as merely arrangements for the purchase of goods and services by Blue Shield and thus not the "business of insurance." See id. at 214, 99 S. Ct. at 1075. 116 The majority attempts to distinguish Royal Drug on the grounds that "[u]nlike the health plans that are the subject of the Kentucky statute, the insurer in Royal Drug did not restrict the number of providers in question." However, the insurer in Royal Drug merely offered to enter into agreements with each licensed pharmacy in Texas. This is significantly different from actually entering into such agreements, because, as the Supreme Court observed, "only pharmacies that can afford to distribute prescription drugs for less than this $2 markup can profitably participate in the plan." Id. at 209, 99 S. Ct. at 1072. As a result, the insurer's promise to enter into agreements with all pharmacies was essentially an empty one, as only larger, high volume pharmacies could afford to enter into such an agreement. Such a hollow offer provides no real basis to distinguish the case from the limited provider networks at issue in the case at bar. 117 Similarly, Kentucky's AWP laws have almost no effect on the policyholder risk that insurers must underwrite. Like Blue Shield's unchanged obligation to cover a policyholder's prescriptions after entering into the pharmacy agreements, Kentucky insurers must cover the same medical procedures after the AWP law as they would have to if the AWP provision had not been enacted. It is true that the AWP laws would likely force insurers to pay higher rates, however, as in Royal Drug, this would only affect the price that insurers must pay for procedures covered in the policies they have issued, not the type of policyholder risks that they contractually must cover12. Accord, Prudential Ins. Co., 154 F.3d at 828 (finding that the Arkansas AWP statute plainly did not spread risk, and noting that appellants did not even attempt to argue to the contrary). 118 In discussing the nature of insurance, the Royal Drug Court referred to SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 79 S. Ct. 618, 3 L. Ed. 2d 640 (1959), quoting it for the proposition that "the concept of insurance involves some investment risk-taking on the part of the company." The Court noted that whilepetitioners didn't dispute this fact, they maintained that the pharmacy agreements did involve the underwriting of risk. To this end, they argued that Blue Shield accepted a premium and assumed the risk that policyholders would need prescription drugs by agreeing to enter into contracts with existing pharmacies to provide such drugs for promised reimbursement from Blue Shield. The Court observed that "the fallacy of petitioner's position is that they confuse the obligations of Blue Shield under its insurance policies, which insure against the risk that the policyholders will be unable to pay for prescription drugs during the period of coverage, and the agreements between Blue Shield and the participating pharmacies, which serve only to minimize the costs Blue Shield incurs in fulfilling its underwriting obligations." The court then noted that the benefit promised to the policyholders, that they would only have a two-dollar co-payment for any prescriptions, remained unchanged by the arrangement. 119 As a result the court concluded that Blue Shield's arrangements left policyholders basically unconcerned (from a financial perspective) about the arrangements Blue Shield entered into with participating pharmacies. This is not to say that at least some participants would not be disappointed by the fact that their pharmacy of choice might not have been included, if for example it was not large enough to provide prescriptions for only a two-dollar markup. However, the financial risks that Blue Shield agreed to cover remained unchanged, leaving the policyholders without concern for Blue Shield's cost savings agreements with the larger pharmacies. 120 As the majority notes, in the case at bar the policyholders were also unconcerned with the insurer's compensation arrangements. However, the majority concludes that the policyholders were concerned with restrictions on their freedom of choice in seeking medical treatment. Ignoring for a moment the fact that Kentucky's AWP laws do not allow policyholders the freedom to choose their own doctor, and thus only addresses this concern in at best a very tangential way, any concerns over freedom of choice are beside the point. The critical issue with respect to the risk spreading prong, as well as whether the law regulates insurance as a matter of common sense, is whether or not the law is related to the risks underwritten by the insurer. As the Court noted in Royal Drug, while discussing the meaning of "business of insurance" under the McCarran-Ferguson Act: "It is important, therefore, to observe at the outset that the statutory language in question here does not except the business of insurance companies from the scope of the antitrust laws. The exemption is for the 'business of insurance,' not the 'business of insurers.'" Id. at 210-11, 99 S. Ct. at 1073. Because Kentucky's AWP laws seek to merely regulate the "business of insurers" by dictating how they structure their provider networks, irrespective of the risks they underwrite, they should not qualify for savings clause protection. 121 The majority points to Stuart Circle Hosp. Corp. v. Aetna Health Management, 995 F.2d 500 (4th Cir. 1993), as support for its contention that Kentucky's AWP laws do transfer risk. Stuart Circle involved a Virginia statute which required insurers to accept any willing provider if they established preferred provider networks. The court concluded that while the statute "related to" ERISA plans, it was not preempted, because it fell within ERISA's savings clause as a law regulating insurance. Id. at 504. After finding the common sense test satisfied, in part because the law was located within Virginia's insurance code,13 the court moved on to theMcCarran-Ferguson factors. Discussing whether the law transferred or spread policyholder risk, the court concluded that the Virginia statute "affects the type and cost of treatment available to an insured." Id. The court reached this conclusion because it believed that without the AWP law, policyholders might on occasion attend a doctor outside of their plan network, due to a personal preference for that doctor, and in doing so, would be forced to shoulder all or part of the cost. See id. 122 I am unpersuaded by the majority's argument that Stuart Circle's attenuated risk spreading rationale should be applied to Kentucky's AWP laws. As I have discussed, Kentucky's AWP laws do not require health benefit plans to include a single additional provider unless the qualified provider, not the policyholder, decides to join the plan. Policyholders are not necessarily any better off than they were before the law was passed, only benefitting from the law if their provider is both willing to join their particular provider network and able to meet its requirements. The insurance policy and the contingencies it underwrites, i.e., the risk that insured will need medical treatment for a condition covered under the policy, remain the same, regardless of Kentucky's AWP law14. There is no shifting of the risk between the policyholder and insurer that a specific medical contingency will occur. 123 The majority attempts to escape from Royal Drug's teaching by relying on dicta from American Drug Stores, Inc. v. Harvard Pilgrim Health Care, Inc., 973 F. Supp. 60 (D. Mass. 1997), in which the court questioned "whether the holding of Royal Drug may be translated into the ERISA preemption context at all." Id. at 72. The American Drug Store court was referring to the fact that Royal Drug interpreted the scope of the antitrust exemption under § 2(b) of the McCarran-Ferguson Act, but did not address §§ 1 and 2(a) of the act, which preserved a State's ability to regulate the "business of insurance" from Commerce Clause attack. See Royal Drug, 440 U.S. at 219 n.18, 99 S. Ct. at 107715. However, the Supreme Court has not indicated that it is troubled by this distinction. As recently as last term, the Court employed the McCarran-Ferguson factors it created in Royal Drug and importedinto ERISA preemption analysis in Metropolitan Life, without any indication that its past precedent interpreting whether a law "regulates insurance" under ERISA's savings clause was called into doubt. See Ward, 119 S.Ct. 1380, 1388 (1999).16 Until the Court indicates that its Royal Drug business of insurance test is no longer appropriate in the ERISA savings clause context, something that it has yet to do, I believe we must continue to apply the test as dictated by the Court's precedent. 124 Moving to the second McCarran-Ferguson factor, I consider whether Kentucky's AWP laws affect an integral part of the policy relationship between the insurer and insured. The majority asserts that the district court was correct in finding that Kentucky's AWP laws dictate a substantive term of the contract between the insurer and insured and are thus an integral part of this relationship. As support for this proposition, the majority again cites Stuart Circle, which concluded that because Virginia's AWP law affected treatment and cost (through the same attenuated manner in which the court concluded risk was spread) it was integral to the insurer-insured relationship. 995 F.2d 500 at 503. 125 Again I find Stuart Circle unconvincing. The effect of Kentucky's AWP laws center on the insurer-provider relationship. The terms of the insurer-insured relationship are only affected in a very indirect manner, making it difficult to see the AWP laws as integral to that relationship. See Prudential Ins. Co., 154 F.3d at 830 (finding the Arkansas AWP law not to be integral to the insurer-insured relationship, as it defined only the terms between the insurer and providers, and distinguishing Gregoire because Washington's any category of provider law did affect the insurer-insured relationship by expanding the kinds of treatment the policy must cover); Cf., Pilot Life Co. v. Dedeaux, 481 U.S. 41, 50-51, 107 S. Ct. 1549, 1554-55 (1987) (noting that Mississippi's law of bad faith, in contrast to the mandated benefits law in Metropolitan Life, did not define the terms between the insurer and insured, and thus only affected the insurer-insured relationship in an attenuated way). The Court's discussion of California's notice-prejudice rule in Unum Life Ins. Co. of America v. Ward, 119 S. Ct. at 1389-90 (1999), provides an illuminating example of what qualifies as an integral policy relationship under the McCarran-Ferguson factors. The Supreme Court observed that: 126 [California's notice-prejudice rule] serves as an integral part of the policy relationship between the insurer and insured. Metropolitan Life, 471 U.S. at 743, 105 S. Ct. 2380. California's rule changes the bargain between insurer and insured; it effectively creates a mandatory contract term that requires the insurer to prove prejudice before enforcing a timeliness-of-claim provision. 127 Id. In sharp contrast, Kentucky's AWP provisions leave the contract terms between the insurer and insured, unaltered. The relationships directly affected by the law are those existing between insurers and third parties (i.e., medical providers). As discussed above, the medical risks covered by the policy remain the same. Thus, even if an insured's preferred provider decides to join the insured's network, and complies with its terms in doing so, the medical coverage that the insurer has contracted to underwrite remains unchanged. Unlike the mandated benefit laws at issuein Metropolitan Life, the mandated provider law in Gregoire, or the mandatory notice-prejudice rule in Ward, Kentucky's AWP laws do not force the insurer to offer a benefit to insureds that was not available before the law. Rather, Kentucky's AWP laws merely force insurers to potentially make additional contractual arrangements with providers they might otherwise exclude. The medical conditions covered remain unaffected and the insureds are still limited to the plan's network of providers. Therefore, I must conclude that Kentucky's AWP law is not integral to the insured-insurer relationship. 128 Finally, I consider whether the Kentucky AWP laws are limited to entities within the insurance industry. As discussed under the common sense test, I do not believe this to be the case. The law not only regulates entities that fall outside the traditional definition of insurer, it also extends to include entities in no way involved in underwriting risks. In fact, a review of the statute shows that while it may affect the way that some insurance companies run their business, it has nothing to do with the underwriting of risk, the traditional earmark of insurance. See Royal Drug, 440 U.S. at 211-12, 99 S. Ct. at 1073-74. Accordingly, I believe that Kentucky's AWP laws fail the third prong of the McCarran-Ferguson test as well. 129 In sum, I am forced to conclude that §§ 304.17A-110(3) and 304.17A-171(2), Kentucky's AWP laws, are not saved from preemption as laws that regulate the business of insurance, because under ERISA § 514(b), they fail to meet not only the common sense test, but also all of the McCarran-Ferguson factors.17 While federalism concerns prohibit federal courts from lightly preempting acts of a state legislature, I agree with the Eighth Circuit's observation in Prudential Ins. Co. that, "it is for Congress, not the courts, to reassess ERISA in light of modern insurance practices and the national debate over health care." Prudential Ins. Co., 154 F.3d at 829-30. II. Severability 130 Because I believe that Kentucky's AWP provisions, Ky. Rev. Stat. Ann. § 304.17A-110(3) and 304.17A-171(2) (Banks-Baldwin 1995), are preempted by 29 U.S.C. § 1144(a) and not saved by the savings clause of 29 U.S.C. § 1144(b)(2)(A), I write separately to address whether the laws should be invalidated in their entirety, or whether the offending provisions of the statutes may be severed in whole or part. While never explicitly stating so, as discussed above, the majority appears to agree that Kentucky's AWP laws are preempted at least in their application to HMOs and HSCs who are performing administrative or related duties for self-insured employee benefit plans. However, despite implicitly drawing this conclusion, the majority still concludes that the AWP law is saved by the insurance savings clause. In doing so, the majority fails to mention, let alone discuss, how it severs Kentucky's AWP provision in such a manner that it no longer applies to third party plan administrators performing administrative functions for self-insured plans, thereby allowing it to conclude that the provision is saved in all other applications. 131 The Supreme Court has often stated that the inquiry into whether a statute is severable is essentially an inquiry into legislative intent. See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 119 S. Ct. 1187, 143 L. Ed. 2d 270 (1999); Zobel v. Williams, 457 U.S. 55, 64, 102 S. Ct. 2309, 2315, 72 L. Ed. 2d 672 (1982); Regan v. Time, Inc., 468 U.S. 641, 653, 104 S. Ct. 3262, 3269, 82 L. Ed. 2d 487 (1984) (plurality opinion). In discerning the legislature's intent, the Court has directed that: 132 Unless it is evident that the legislature would not have enacted those provisions which are within its power, independentlyof that which is not, the invalid part may be dropped if what is left is fully operative as a law. Champlin Refining Co. v. Corporation Comm'n of Okla., 286 U.S. 210, 234, 52 S. Ct. 559, 76 L. Ed. 1062 (1932). See also Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S. Ct. 1476, 94 L. Ed. 2d 661 (1987); Regan v. Time, Inc., supra, at 653, 104 S. Ct. 3262. 133 Mille Lacs Band of Chippewa Indians, 119 S. Ct. at 1198. Therefore, as evidence of the legislature's intent I look to Kentucky's severability statute, which states: 134 It shall be considered that it is the intent of the general assembly in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the general assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the general assembly. 135 Ky. Rev. Stat. Ann. § 446.090. The statute indicates that if any part of a Kentucky statute is found unconstitutional, it is the legislature's intent that the remaining provisions be saved. However, in drafting the statute the legislature also recognized that situations will exist where severing the offending parts cannot be considered as it would make it impossible to carry out the original legislative intent. 136 I begin my severability inquiry by addressing whether portions of Ky. Rev. Stat. Ann. §§ 304.17A-110(3) and 304.17A-171(2) may be severed in such a way that the provisions would not be preempted in their entirety. Because I believe that §§ 304.17A-110(3) and 304.17A-171(2) contain an impermissible connection with ERISA covered plans, there is no way to save the provisions themselves from preemption by severing particular parts while leaving the rest intact. Even if it were possible to do so, merely removing any prohibited "references to" ERISA plans would not suffice. The Kentucky provisions impermissible "connection with" ERISA plans would continue, as ERISA plans would still be effectively prohibited from offering limited provider panels, as none would be available to them. The only way that §§ 304.17A-110(3) and 304.17A-171(2) could be saved, would be to add language effectively allowing health care entities to offer limited provider networks to ERISA covered plans. Because both Kentucky and federal case law prohibit us from adding language to a state statute to remove its conflict with federal law, see, e.g., Musselman v. Commonwealth, 705 S.W.2d 476, 477 (Ky. 1986), Eubanks v. Wilkinson, 937 F.2d 118, 120 (6th Cir. 1991), I conclude that §§ 304.17A-110(3) and 304.17A-171(2) are preempted in their entirety. See Prudential Ins. Co., 154 F.3d at 832 (concluding that the AWP statute at issue was preempted in its entirety); Texas Pharmacy Ass'n, 105 F.3d at 1039 (drawing the same conclusion). 137 Finally, I address whether the preempted provisions, provision (3) of § 304.17A-110 and provision (2) of § 304.17A-171, may be severed from their respective statutory sections or whether the sections must also be preempted. Kentucky's severability statute indicates that unconstitutional provisions may presumptively be severed, unless severing the offending provisions makes it impossible to execute the remaining provisions of a statute in the manner the legislature intended. It is clear that §§ 304.17A-110 and 304.17A-171 can be executed in accordance with the legislature's original intention without provision (3) and (2) respectively. Accordingly, while I conclude that §§ 304.17A-110(3) and 304.17A-171(2) should be preempted in their entirety, the statutory sections they reside in should remain unaffected. Notes: 1 As noted in the majority's opinion, § 304.17A-110(3) was the provision that was actually before the district court. However, both the parties have agreed that this appeal will govern § 304.17A-270 as well, as it is essentially a recodification of § 304.17A-110(3). Accordingly, unless otherwise noted I would apply my analysis of § 304.17A-110(3) to § 304.17A-270 as well. 2 The district court in the companion case of Community Health Partners, Inc. v. Commonwealth of Kentucky, 14 F. Supp. 2d 991 (1998) devoted more room to its discussion of the common sense test. The court concluded that the statute satisfied the common sense test because it affected specific terms of the insurance policy, was located in the insurance code and regulated insurers or insurer related entities. Id. at 1001-02. While the district court conducted a careful analysis, I reach a contrary conclusion on all points for the reasons explained below. 3 In addition to traditional insurance companies, Kentucky's AWP laws apply to entities such as HMO's and Health Service Corporations. These entities might be argued to fall within the insurance industry if they have agreed to accept the risk that the covered individual will need medical services in exchange for a fee. See Group Life & Health Ins. v. Royal Drug, 440 U.S. 205, 211, 99 S. Ct. 1067, 1073, 59 L. Ed. 2d 261 (1979) (stating that, "[t]he primary elements of an insurance contract are the spreading and underwriting of policyholder risk"). As such, they may be seen as underwriting policyholder risk and then covering that risk with the provision of medical services, rather than by paying for those services as a traditional insurer would. Given the somewhat subtle distinction in this difference, it could be argued that some HMO's and HSC's are engaged in the business of insurance. See Washington Physicians Serv. Ass'n v. Gregoire, 147 F.3d at 1045 (adopting this view); but see Texas Pharmacy Ass'n, 105 F.3d at 1038-39 (concluding that the Texas statute was not limited to entities within the insurance industry, as it applied to entities such as HMO's and PPO's). However, as Kentucky's AWP laws also apply to entities that are clearly outside the business of insurance, I believe that it is unnecessary for us to decide this issue. 4 Section 304.17A-100(4)(a) defined "Health Benefit Plan" as including: Any hospital or medical expense policy or certificate; nonprofit hospital, medical-surgical, and health service corporation contract or certificate; a health benefit plan offered by a provider-sponsored integrated health delivery network; a self-insured plan or a plan provided by a multiple employer welfare arrangement, to the extent permitted by ERISA; health maintenance organization contract; and standard and supplemental health benefit plan as established by KRS 304.17A-160. Ky. Rev. Stat. Ann. § 304.17A-100(4)(a). Section 304.17A-170 supplies a nearly identical definition of "Health Benefit Plan" (by reference to § 304.17A-005) for § 304.17A-171. 5 As observed in part I of the majority opinion, § 304.17A-270 recodified § 304.17A-110(3), merely substituting "Health Insurer" for "Health Benefit Plan," and leaving the AWP provision otherwise unchanged. Section 304.17A-005 defines "Insurer," as used in § 304.17A-270, as: [A]ny insurance company; health maintenance organization; self-insurer or multiple employer welfare arrangement not exempt from state regulation by ERISA; provider sponsored integrated health delivery network; self-insured employer organized association, or nonprofit hospital medical-surgical, dental, or health service corporation authorized to transact health insurance business in Kentucky. Ky. Rev. Stat. Ann. § 304.17A-005 (Banks-Baldwin 1999). This definition largely tracks repealed § 304.17A-100(4)(a)'s definition of "Health Benefit Plan." Despite the majority's claim that the substitution of the term "Health Insurer" for "Health Benefit Plan" in the current statute excludes administrators under contract with benefits plans from the scope of the statutes, the definition of "insurer" continues to include plan administrators. 6 The fact that §§ 304.17A-110(3) and 304.17A-171(2) happen to be codified amongst Kentucky's insurance provisions does not alter this conclusion, as it in no way assures that the law is specifically directed toward the insurance industry. 7 In an attempt to dismiss the problem of partial preemption (insofar as applied only to plan administrators), the majority appears to draw a distinction between Kentucky's AWP statute and the AWP statute at issue in Prudential Ins. Co., on the grounds that Kentucky's statute does not specifically state that it applies to "plan administrators." However, §§ 304.17A-110(3) and 304.17A-171(2) apply to "Health Benefit Plans," defined to include HMO and HSC contracts. Similarly, § 304.17A-270 applies to "Health Insurers," defined to include all Insurance Companies, HMOs and HSCs. These definitions in no way limit the applicability of Kentucky's AWP provisions to entities underwriting risk. Consequently, if a self-insurer entered into a contract with an HMO, HSC, or Insurance Company solely for the provision of plan administration, there is no reason that the AWP laws would not apply. A plain reading of the AWP provision compels this conclusion regardless of the law's applicability to the self-insured entity the HMO or HSC contracted with. Consequently, one can only conclude that the AWP provisions are preempted, as by their terms they apply directly to HMO's and HSC's that have merely agreed to operate as administrators of self-insured employee benefit plans. 8 The insurance company's ability to use limited provided networks remains unaffected by such a law. 9 As to the issue of whether AWP laws spread risk, the Gregoire court stated that it expressed no opinion. Gregoire, 147 F.3d at 1047. 10 The majority mysteriously concludes that the provision changes the policy between the insured and insurer, "not in terms of covered medical conditions, but in terms of covered treatment by health care providers." However, both the medical risks and corresponding treatment covered by the insurer remain unaltered by Kentucky's AWP law. Consequently, I assume that by this statement the majority really means that by potentially expanding the number of plan doctors that one could go to receive treatment for a covered condition, the AWP law somehow changes the contract between the insurer and insured. 11 If their doctor met the plans qualifications, had wanted to join the plan, but was denied membership, that doctor could no longer be kept out of the network if he or she still wished to join. 12 Under Kentucky's AWP law, benefit plans can no longer guarantee a limited panel of providers to which other doctors will not be added to handle the plan's patients. To the extent that contracts between benefit plans and providers contained such exclusivity provisions, under the majority's holding they will no longer be enforceable. While the likely result is an increase in the price that insurers must pay, this is not because of an increase in risk, but rather it is due to a decrease in the volume discount an insurer can command if policyholders are spread across a potentially larger network of plan doctors. See Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 213-15, 99 S. Ct. 1067, 1074-76, 59 L. Ed. 2d 261 (1979). 13 As indicated above, this fact should have little to do with determining whether a law is specifically directed at the insurance industry, as any law may be inserted within the insurance provisions of a state code. Further, the Virginia statute at issue, § 38.2-3407, only applied to "insurers," defined within the Chapter to mean "an insurance company" which is itself defined as "any company engaged in the business of making contracts of insurance." Va. Code Ann. § 38.2-100. Thus, Virginia's AWP statute was more narrow in scope than Kentucky's, quite specifically limiting its application to the term "insurance companies," defined by the statute to include only companies actively issuing insurance contracts. Consequently, Virginia's statute would clearly not apply to entities engaged in only administrative functions for an employee benefit plan. 14 The conclusion that Kentucky's AWP laws are not the business of insurance is supported by the following rhetorical question which the Supreme Court posed in Royal Drug. The court addressed a scenario which essentially involved limited provider networks, stating: Suppose, for example, that an insurance company entered into a contract with a large retail drug chain whereby its policyholders could obtain drugs under their policies only from stores operated by this chain. The justification for such an agreement would be administrative and bulk-purchase savings resulting from obtaining all of the company's drug needs form a single dealer. Even though these cost savings might ultimately be reflected in lower premiums to policyholders, would such a contract be the "business of insurance?" Or suppose that the insurance company should decide to acquire the chain of drug stores in order to lower still further its costs of meeting its obligations to its policyholders. Such an acquisition would surely not be the "business of insurance." 440 U.S. at 215, 99 S. Ct. at 1075. If such agreements are not the "business of insurance," then it follows that a state's attempts to regulate these agreements would not qualify as such either. 15 The majority appears to be persuaded by this reasoning. I do not draw the same conclusion. However, even if the meaning of "business of insurance" was broadened beyond the contractual relationship between the policyholder and insurer, I do not believe that Kentucky's AWP law would qualify. As I have explained elsewhere, Kentucky's AWP laws have at most a speculative and tangential effect on this relationship. 16 The district court in Community Health Partners v. Commonwealth of Kentucky, 14 F.Supp.2d 991 (W.D. Ky. 1998) observed that United States v. Fabe, 508 U.S. 491, 113 S. Ct. 2202, 124 L. Ed.2d 449 (1993) might be argued to change and broaden savings clause analysis in the ERISA context. However, other federal courts have not reached this conclusion and the Supreme Courts most recent opinion in Ward gives no indication that the Court's savings clause analysis has changed. See also, Prudential Ins. Co., 154 F.3d at 827-828 (concluding that Fabe had no effect on savings clause analysis). 17 As we indicated above, the parties have agreed that our holding with regard to § 304.17A-110(3) will serve to determine whether § 304.17A-270 is preempted as well.

87 F.3d 1170 71 Fair Empl.Prac.Cas. (BNA) 339, 5 A.D. Cases 1064,17 A.D.D. 1105, 8 NDLR P 170 Jamie LOWE, Plaintiff-Appellant,v.ANGELO'S ITALIAN FOODS, INC., and its Representatives, andAngelo Fasciano and John P. Fasciano, Defendants-Appellees. No. 95-3064. United States Court of Appeals,Tenth Circuit. July 2, 1996. Jose Hurlstone-Peggs (William L. Fry with her on the brief), William L. Fry, P.A., Wichita, Kansas, for Plaintiff-Appellant. Alexander B. Mitchell, II, Klenda, Mitchell, Austerman & Zuercher, L.L.C., Wichita, Kansas, for Defendants-Appellees. John P. Rowe, General Counsel (Acting), (Gwendolyn Young Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, John F. Suhre, Attorney, with him on the brief), Washington, D.C., filed an amicus curiae brief for the Equal Employment Opportunity Commission. Before BALDOCK, BRISCOE, and MURPHY, Circuit Judges. MURPHY, Circuit Judge. 1 Defendant terminated plaintiff's employment and plaintiff responded by filing this action, alleging violations of both the Americans with Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1964. Plaintiff also sought recovery for intentional infliction of emotional distress. The district court granted summary judgment to defendants. The court held that plaintiff was not disabled under the ADA; that she had failed to present a prima facie case of sex discrimination; and that she had failed to allege sufficient facts to support her state law claim for intentional infliction of emotional distress. We affirm the grant of summary judgment to defendants on plaintiff's Title VII and pendent state law claims. We reverse the grant of summary judgment on plaintiff's ADA claim, however, because plaintiff has presented evidence which creates a genuine issue of fact with respect to whether her ability to lift is substantially impaired. We hold that lifting is a "major life activity" and that an individual whose ability to lift is substantially impaired qualifies as a disabled person within the meaning of the ADA. 2 In late August 1992, plaintiff Jamie Lowe began work for defendant Angelo's Italian Foods, an Italian restaurant located in Wichita, Kansas. Her duties included purchasing and inventory control. When Lowe initially interviewed for a position at Angelo's, she heard a line cook remark "no skirts in the kitchen." Because the cook who made this remark left Angelo's the very next day, Lowe never saw him again. 3 In addition, during the nine weeks she was employed at Angelo's, Lowe's supervisor, defendant Angelo Fasciano, referred to her as "girl" or "girlie" when he couldn't remember her name. Fasciano also required Lowe to wear dress clothes, while two of her male co-workers were allowed to wear jeans and t-shirts. Once when Lowe wore red slacks and a red shirt to work, Fasciano told her "no more of this red thing." 4 On October 22, 1992, Lowe presented Fasciano with a letter from her doctor. The letter stated: 5 Jamie Lowe has seen me recently regarding pain and weakness in her right leg. Because of her neurological problems she fatigues exceedingly easily and needs to be able to sit down occasionally. She is not going to be able to do lots of stooping, bending and cannot carry anything heavy (greater than 15 lbs.) and anything up to 15 lbs. only occasionally. She should avoid stairs. She needs to use a hand rail if she has to climb stairs, so [sic] cannot climb stairs and carry anything. 6 Lowe was terminated that same day. She was thereafter diagnosed with multiple sclerosis. 7 This court reviews the district court's entry of summary judgment de novo, applying the same legal standard used by the district court. Schusterman v. United States, 63 F.3d 986, 989 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1823, 134 L.Ed.2d 929 (1996). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment should be denied "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). 8 Lowe first argues that the district court erred by granting summary judgment to defendants on her ADA claim. Title I of the ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, [or] the hiring, advancement, or discharge of employees." 42 U.S.C. § 12112(a). To maintain a claim for wrongful discharge under the ADA, a plaintiff must demonstrate (1) that she is a disabled person within the meaning of the ADA; (2) that she is able to perform the essential functions of the job with or without reasonable accommodation; and (3) that the employer terminated her because of her disability. White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir.1995). The term "disability" is defined as: 9 (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; 10 (B) a record of such an impairment; or 11 (C) being regarded as having such an impairment. 12 42 U.S.C. § 12102(2). The term "major life activity" as defined in the regulations implementing the ADA encompasses "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i). The appendix to the regulations provides that "other major life activities include, but are not limited to, sitting, standing, lifting, reaching." 29 C.F.R. Pt. 1630, Appendix to Part 1630--Interpretive Guidance to Title I of the ADA, § 1630.2(i) (citing S.Rep. No. 116, 101st Cong., 1st Sess. 22 (1989); H.R.Rep. No. 485 part 2, 101st Cong., 2d Sess. 52 (1990); H.R.Rep. No. 485 part 3, 101st Cong., 2d Sess. 28 (1990)). 13 The term "substantially limits" means "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1)(ii). The three factors to be considered when determining whether an impairment substantially limits a major life activity are "(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." Id. § 1630.2(j)(2). 14 Three additional factors may be considered when the individual claims that the impairment substantially limits her in the major life activity of working. Id. § 1630.2(j)(3)(ii). These factors are: 15 (A) [t]he geographical area to which the individual has reasonable access; 16 (B) [t]he job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or 17 (C) [t]he job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes). 18 Id. Focusing on these additional factors, the district court held that Lowe failed to present evidence that her impairment was substantially limiting. 19 Applying the first three factors laid out in the regulations, the evidence indicates that Lowe suffers from multiple sclerosis or MS; that as a result of her MS, Lowe is unable to lift items weighing more than fifteen pounds and that she should lift items weighing less than fifteen pounds only occasionally; that MS is a neurological disease for which there is no known cure; and that the long-term impact of the disease will vary depending on the form the MS takes. We hold that lifting is a major life activity and that the evidence creates a genuine issue of material fact with respect to whether Lowe's impairment substantially limits her ability to lift. It is thus unnecessary to consider the additional factors relied upon by the district court. 20 Defendants' arguments to the contrary are unavailing. Defendants urge that Lowe has failed to present evidence comparing her ability to lift with the ability of the average person. They assert that she has not demonstrated the impact of her condition on her life away from work. While the court agrees that more specific evidence on these issues will be helpful to the trier of fact on remand, Lowe has nevertheless presented sufficient evidence to withstand summary judgment. 21 Defendants argue, in the alternative, that even if Lowe has created a genuine issue of fact with respect to whether she suffers from a disability under the ADA, she has nevertheless failed to demonstrate that she is qualified for her position at Angelo's. This court has adopted a two-part analysis for determining whether a disabled individual is qualified under the ADA: 22 First, we must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if (but only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions. 23 White, 45 F.3d at 361-62 (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994)). 24 Defendants concede that there is a genuine issue of material fact as to the essential functions of Lowe's job at Angelo's. Nevertheless, they argue that the statement of Marsha Sears, an occupational therapist who examined Lowe after her dismissal, mandates a finding that Lowe is not qualified as a matter of law. Based on Lowe's decreased endurance and strength, Sears concluded that Lowe was "not a candidate for employment at this time as a kitchen manager." Sears's general statement does not, however, address the essential functions of Lowe's job at Angelo's, nor does it conclusively establish that Lowe is unable to perform those functions. Moreover, a finding that Lowe cannot perform the essential functions of her job does not end the inquiry. If the trial court finds that Lowe is unable to perform the essential functions of her position, it must then determine whether any reasonable accommodation by defendants would enable her to perform those functions. Because Lowe has raised a genuine issue of material fact as to the essential functions of her job at Angelo's, summary judgment premised on the testimony of the occupational therapist is inappropriate. 25 Because the district court held that Lowe had failed to establish a prima facie case, it did not reach her claim that defendants discriminated against her by failing to provide reasonable accommodations for her impairment. Under the ADA, prohibited discrimination includes failure to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A). Because Lowe has raised a genuine issue of fact with respect to whether she suffers from a disability and with respect to her qualifications for the position at Angelo's, the court remands this issue to the trial court for further consideration. 26 Lowe next challenges the grant of summary judgment on her Title VII sex discrimination claims. Lowe first contends that her termination constituted disparate treatment. To establish a prima facie case, the discharged employee must show that: (1) she belongs to the protected class; (2) she was qualified for her job; (3) that, despite her qualifications, she was discharged; and (4) that after her discharge the job remained available. See Lujan v. New Mexico Health & Social Servs. Dep't, 624 F.2d 968, 970 (10th Cir.1980) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). Assuming that Lowe was qualified to perform her job at Angelo's, she has nevertheless failed to present any evidence that the job remained available after she was discharged. Accordingly, Lowe has failed to establish a prima facie case of disparate treatment based on her termination. 27 Lowe has likewise failed to establish a prima facie case of disparate treatment based on Fasciano's requirement that she wear "dress" clothes while two of her male co-workers were allowed to wear blue jeans and t-shirts. For purposes of evaluating Lowe's argument, this court will assume that imposing special appearance rules on members of only one sex may violate Title VII. See Carroll v. Talman Fed. Sav. & Loan Ass'n, 604 F.2d 1028, 1032-33 (7th Cir.1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1316, 63 L.Ed.2d 762 (1980). Lowe, however, has failed to show that she was treated less favorably than her similarly-situated male counterparts. See Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1380 (10th Cir.1994). Although she testified that she was required to "dress up," her testimony is equivocal regarding the job descriptions of the two male employees who were exempted from this requirement. Because Lowe has failed to present evidence that these male coworkers were similarly situated with respect to their job functions, she has failed to establish a prima facie case of disparate treatment based on the requirement she wear dress clothes. 28 Lowe next contends that she was the victim of a hostile work environment based on her gender. The Supreme Court has held that "[w]hen the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' ... that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' " Title VII is violated. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986)). The challenged conduct must create "an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive." Id. Casual or isolated manifestations of discriminatory conduct, such as a few sexual comments or slurs, may not support a cause of action. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1414 (10th Cir.1987). 29 Upon review of this record, the court concludes that Lowe has failed to present sufficient evidence from which a reasonable jury could return a verdict in her favor. Lowe argues that Fasciano's requirement that she not wear red is evidence of a hostile work environment. She has failed, however, to establish that this requirement was related to her gender. In addition, the isolated comment "no skirts in the kitchen" and Fasciano's use of the term "girlie" to refer to Lowe, although regrettable, do not demonstrate that the work environment at Angelo's was "permeated with discriminatory intimidation, ridicule, and insult." Harris, 510 U.S. at 21, 114 S.Ct. at 370 (citation and internal quotation marks omitted). 30 In addition to these incidents, Lowe relies heavily on the deposition testimony of a former Angelo's employee, Ronald Sagely, to support her hostile work environment claim. Sagely left Angelo's in 1987, five years before Lowe started working there. He testified that the Fascianos occasionally called waitresses "fucking slow bitches" and blacks "niggers" or "melanzanes," a derogatory Italian term for blacks. He also testified that the Fascianos abused "pretty much everybody." 31 Past discrimination may properly be considered evidence of current discriminatory intent in a disparate treatment case. Pitre v. Western Elec. Co., 843 F.2d 1262, 1267 (10th Cir.1988). This court, however, has yet to address the issue of whether past discrimination may be considered evidence of a current hostile work environment. Assuming that Sagely's testimony can properly be considered, Lowe has nevertheless failed to establish a prima facie case of harassment based on her gender. Viewed in its entirety, Sagely's deposition establishes only that Angelo's was a highly volatile and frequently unpleasant place to work for both men and women. Similarly, the Fascianos use of racist epithets, although appalling, does not establish that Lowe suffered gender discrimination. 32 In her last argument under Title VII, Lowe challenges the district court's grant of summary judgment on her claim that she was discharged in retaliation for advocating the hiring of African Americans. To establish a prima facie case of retaliation under Title VII, an employee must show that: (1) she engaged in protected opposition to statutorily prohibited discrimination; (2) the employer took adverse action contemporaneously or subsequent to the employee's protected activity; and (3) a causal connection exists between the employer's adverse action and the employee's protected activity. Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir.1994). Assuming Lowe's activities qualified as protected opposition to statutorily prohibited discrimination, Lowe has nevertheless failed to provide any evidence demonstrating a causal connection between her termination and the protected activity. Accordingly, she has failed to establish a prima facie case of retaliation under Title VII. 33 Finally, Lowe challenges the district court's grant of summary judgment on her Kansas state law claim for intentional infliction of emotional distress or outrage. This court recently considered the requirements for the tort of outrage under Kansas law in Bolden v. PRC Inc., 43 F.3d 545 (10th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995). To succeed on a claim of outrage, as a threshold matter, the employee must show that: (1) the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) the emotional distress suffered by the plaintiff is so extreme the law must intervene because no reasonable person would be expected to endure it. Id. at 553 (citing Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175, 1179 (1981)). " 'Conduct to be a sufficient basis for an action to recover for emotional distress must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.' " Id. at 554 (quoting Roberts, 637 P.2d at 1179). Because the court determines that defendants' conduct, although distasteful, is not so extreme that it "goes beyond the bounds of decency and is utterly intolerable in a civilized society," the district court's grant of summary judgment on Lowe's claim of outrage is affirmed. 34 For the foregoing reasons, this court AFFIRMS the district court's grant of summary judgment on Lowe's Title VII and intentional infliction of emotional distress claims. The court REVERSES the grant of summary judgment on Lowe's ADA claim and REMANDS for further proceedings.

35 A.3d 682 (2012) 209 N.J. 96 PEREZ v. PROFESSIONALLY GREEN, LLC. C-523 September Term 2011, 069482 Supreme Court of New Jersey. January 19, 2012. Petition for Certification Granted.

85 So.3d 1179 (2012) Christina YACOUB, Appellant, v. STATE of Florida, Appellee. No. 4D10-2400. District Court of Appeal of Florida, Fourth District. April 18, 2012. Rehearing Denied May 16, 2012. Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee. GROSS, J. Christina Yacoub appeals her conviction and sentence for felony driving under the influence. We reverse because the state failed to satisfy its burden of proving that Yacoub was either provided counsel or validly *1180 waived the right with respect to a previous misdemeanor conviction. On July 4, 2008, the state charged Yacoub with felony driving under the influence. The felony charge was based on her guilty plea to two misdemeanor DUI offenses within the past ten years. See § 316.193(2)(b), Fla. Stat. (2008). Yacoub moved to dismiss the charge for lack of jurisdiction, arguing that there was no valid felony charge to prosecute in circuit court since one of her 2002 DUI convictions had been uncounseled. Following a hearing, the trial court denied the motion. A defendant charged with felony DUI may move to dismiss the charge by alleging that the state is improperly relying on a prior uncounseled misdemeanor DUI conviction. See State v. Kelly, 999 So.2d 1029, 1052 (Fla.2008). To validly raise such a jurisdictional challenge, the defendant must satisfy an initial burden of production by asserting under oath "(1) that the [prior] offense involved was punishable by more than six months of imprisonment or that the defendant was actually subjected to a term of imprisonment; (2) that the defendant was indigent and, thus, entitled to court-appointed counsel; (3) [that] counsel was not appointed; and (4) [that] the right to counsel was not waived." Id. at 1037 (citing State v. Beach, 592 So.2d 237, 239 (Fla.1992)). If the defendant carries this minimalistic burden, then the "burden of persuasion shifts to the state to show either that counsel was provided or that the right to counsel was validly waived." See id. at 1053. At the hearing on the motion in this case, the parties stipulated that Yacoub pleaded guilty to two prior DUIs on the same date in 2002 before the same judge, while Yacoub was in custody. They further agreed that one DUI was handled by the public defender's office and that the second was punishable by imprisonment. The state had the burden of establishing that counsel was provided for the second DUI or that Yacoub validly waived her right to counsel. The state offered no transcript of the 2002 plea conference and no other evidence of what occurred. The state produced no written waiver of the right to counsel. See Fla. R.Crim. P. 3.160(e). The lawyer who was present for Yacoub on one DUI at the 2002 hearing did not appear to testify. The state argued that the temporal proximity of the two pleas circumstantially established that both pleas were entered on the advice of counsel. The trial judge accepted this view. However, the state's "showing" failed to meet the requirements of Beach and Kelly, which require "evidence in the record" "`to show [1] either that counsel was provided or [2] that the right to counsel was validly waived.'" Beach, 592 So.2d at 239; Kelly, 999 So.2d at 1037 (quoting Beach) (emphasis in original). The sparse record failed to carry the state's burden of persuasion under Kelly and Beach. We therefore reverse the felony conviction and remand to the circuit court to resentence Yacoub to misdemeanor driving under the influence. Reversed and remanded. MAY, C.J., and DAMOORGIAN, J., concur.

No. 2--01--1207 _________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT _________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County.  )   Plaintiff-Appellee, )                                )                    v. ) No. 00--CF--1885 ) CARLOS A. RIVERA, ) Honorable ) Victoria A. Rossetti, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________ JUSTICE BOWMAN delivered the opinion of the court: Defendant, Carlos Rivera, appeals the circuit court's order summarily dismissing his petition pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 2000)).  Defendant contends that the petition states a valid claim that he was deprived of the effective assistance of counsel when his lawyer did not heed his request to appeal.  We reverse and remand. Defendant pleaded guilty to aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 2000)).  A plea agreement called for a sentence cap of five years.  After hearing the factual basis, the trial court accepted the plea and sentenced defendant to three years' imprisonment.  The court later granted defendant's motion to reconsider the sentence and resentenced him to 4 years' probation, including 20 months' periodic imprisonment. Defendant did not file a direct appeal.  However, on July 25, 2001, he filed a postconviction petition.  Defendant asserted that he was deprived of the effective assistance of counsel when his lawyer did not perfect an appeal after defendant asked him to do so.  The petition also alleged that a felony charge was not appropriate to the facts of the case, that a sentence of more than one year of periodic imprisonment was illegal, and that he did not receive day-for-day credit to which he was entitled. The trial court summarily dismissed the petition, but ordered that defendant receive credit against his periodic imprisonment term for time he spent in jail.  Defendant timely appealed. Defendant argues that the trial court erred in summarily dismissing his petition because it stated the gist of a constitutional claim of ineffective assistance of counsel.  He contends that counsel's failure to perfect a direct appeal after defendant asked him to do so amounts to per se ineffective assistance. The Act provides a procedural mechanism for a criminal defendant to assert that he was deprived of a constitutional right during the proceedings resulting in his conviction.   People v. Enis , 194 Ill. 2d 361, 375-76 (2000).  A postconviction proceeding is a collateral attack on the conviction and is not intended to relitigate a defendant's guilt or innocence.   People v. Evans , 186 Ill. 2d 83, 89 (1999). A defendant is not entitled to an evidentiary hearing unless the petition's allegations, supported by the trial record and any accompanying affidavits, make a substantial showing of a constitutional violation.   Enis , 194 Ill. 2d at 376.  A ruling on the sufficiency of defendant's allegations is a legal determination and, therefore, our review is de novo .   People v. Coleman , 183 Ill. 2d 366, 378 (1998). In People v. Edwards , 197 Ill. 2d 239, 253 (2001), the court held that defense counsel was ineffective for ignoring the defendant's instructions to appeal, even though the defendant had pleaded guilty and did not identify a specific issue he wished to raise.  A defendant whose lawyer fails to perfect an appeal does not have to show prejudice beyond the fact that he lost his right to appeal.   People v. Swanson , 276 Ill. App. 3d 130, 132 (1995). Here, as in Edwards and Swanson , defendant alleges that he requested an appeal but his lawyer did not take the necessary steps to perfect one. The State first contends that defendant waived this issue because the record on appeal does not contain a transcript from a hearing held on October 12, 2001, at which the trial court disposed of defendant's petition.  However, the minute order from that date states that only the trial judge was present and the matter was "STRICKEN FROM CALL."  Thus, it is apparent that no hearing occurred on that date. The State's response on the merits is difficult to follow.  The State repeatedly refers to defense counsel's statement that they "have been able to provide a certificate pursuant to [Supreme Court Rule ] 604(d)."  See 188 Ill. 2d R. 604(d).  The State does not provide a record citation for this statement (see 188 Ill. 2d R. 341(e)(7)) but presumably intends to refer to a statement in the motion to reconsider the sentence.  The significance of this statement is not apparent.  There is no dispute that defense counsel filed a motion to reconsider the sentence.  Despite the ambiguous reference in the motion, no Rule 604(d) certificate appears in the record on appeal.  However, because defendant's plea was partially negotiated, a motion to reconsider the sentence was improper and did not preserve defendant's right to appeal.  See People v. Linder , 186 Ill. 2d 67, 74 (1999).  Thus, whether or not defense counsel filed a Rule 604(d) certificate in conjunction with the motion to reconsider the sentence simply has no bearing on whether counsel perfected defendant's appeal. Citing People v. Lemons , 242 Ill. App. 3d 941, 946 (1993), the State argues that the petition fails to state "sufficient facts" from which a constitutional claim can be found.  However, in Edwards , the supreme court held that a petition need only state the "gist" of a constitutional claim.   Edwards , 197 Ill. 2d at 244.  The court held that the Lemons "sufficient facts" test is "at odds with this court's holdings and should be avoided."   Edwards , 197 Ill. 2d at 244.  The State does not contend that the petition fails to state the gist of a constitutional claim. The State also appears to argue that defendant did not file an affidavit in support of his allegation that he asked his lawyer to appeal.  See 725 ILCS 5/122--2 (West 2000).  Other than the overruled appellate court decision in Lemons , the State cites no authority for its contention that the absence of an affidavit is fatal to a postconviction petition.  In People v. Boclair , 202 Ill. 2d 89, 99-100 (2002), the court stated that at the first stage of postconviction review: "The circuit court is required to make an independent assessment in the summary review stage as to whether the allegations in the petition, liberally construed and taken as true, set forth a constitutional claim for relief.  The court is further foreclosed from engaging in any fact finding or any review of matters beyond the allegations of the petition.   People v. Coleman , 183 Ill. 2d 366 (1998). To survive dismissal at this stage, the petition must only present 'the gist of a constitutional claim.' " Boclair , 202 Ill. 2d at 99-100, quoting People v. Gaultney , 174 Ill. 2d 410, 418 (1996). Requiring the circuit court at the first stage to examine the petition's evidentiary support would require the court to "review *** matters beyond the allegations of the petition."   Boclair , 202 Ill. 2d at 99. Although the State does not cite it, People v. Collins , 202 Ill. 2d 59 (2002), held that the circuit court properly dismissed at the first stage a petition that was not accompanied by affidavits.   Collins , 202 Ill. 2d at 66.  In a strongly worded dissent upon denial of rehearing, Justice McMorrow, joined by Justice Freeman, argued that Collins is completely inconsistent with Boclair and that Boclair , as the later decision, should be followed.   Collins , 202 Ill. 2d at 75-83 (McMorrow, J., dissenting, joined by Freeman, J.).  However, assuming that Collins remains viable, it is distinguishable from this case. Section 122--2 of the Act provides that a petition be accompanied by "affidavits, records, or other evidence supporting its allegations."  725 ILCS 5/122--2 (West 2000).  The requirement of "affidavits, records, or other evidence" is stated with the disjunctive word "or."  Therefore, any one of the three forms of proof will suffice.  See People v. Roake , 334 Ill. App. 3d 504, 511 (2002).  In Collins , the only attachment to the petition was a verification page without reference to any statutory provision ( Collins , 202 Ill. 2d at 62), which the court held did not meet the affidavit requirement of section 122--2 ( Collins , 202 Ill. 2d at 66-67).  Here, the petition is accompanied by a certification that references "Section 1--109 of the Code of Civil Procedure." Said section provides in part, "Any pleading, affidavit or other document certified in accordance with this Section may be used in the same manner and with the same force and effect as though subscribed and sworn to under oath " (emphasis added)(735 ILCS 5/1--109 (West 2000)).  Thus, this certification is at least the equivalent of an affidavit, unlike the verification contained in Collins .  Furthermore, records in the form of docket entries show that neither a motion to withdraw the plea nor a notice of appeal was filed.  Thus, defendant at least nominally satisfied the requirement of attaching records to support his allegations.   Collins does not hold that each and every allegation in a petition must have evidentiary support. The only material allegation not supported by affidavits (although equivalently certified) or other documents is that defendant specifically requested an appeal.  However, such an allegation is not necessarily critical to a claim of ineffective assistance of counsel.   In Roe v. Flores-Ortega , 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000), the Supreme Court held that a lawyer has an affirmative duty to consult with a client about an appeal if there is reason to think either that a rational defendant would want to appeal or that the particular defendant reasonably demonstrated an interest in appealing.   Flores-Ortega , 528 U.S. at 480, 145 L. Ed. 2d at 997, 120 S. Ct. at 1036; see also Edwards , 197 Ill. 2d at 250. Here, there is at least a factual issue whether defendant asked his lawyer to perfect an appeal or whether a reasonable defendant would have wanted to appeal under the circumstances.  Although defendant pleaded guilty and had his sentence reduced to probation, he still has a felony conviction and received a lengthy term of periodic imprisonment.  On this record, we cannot say that a reasonable defendant would not have wanted to appeal.  Therefore, we remand this cause to the trial court with directions to appoint counsel for defendant. The judgment of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings pursuant to the Act. Reversed and remanded with directions. HUTCHINSON, P.J., and McLAREN, J., concur.

458 F.2d 36 UNITED STATES of America, Appellee,v.Billy Delano WALDEN, Appellant.UNITED STATES of America, Appellee,v.Gene Claude EASTERLING, Appellant.UNITED STATES of America, Appellee,v.John Thomas ARD, Appellant.UNITED STATES of America, Appellee,v.Fruent C. KIMES, Appellant.UNITED STATES of America, Appellee,v.Albert Harry WEATHERSBY, Appellant.UNITED STATES of America, Appellee,v.Joe Pat DAMOUR, Appellant.UNITED STATES of America, Appellee,v.Robert Emerson WHITE, Appellant.UNITED STATES of America, Appellee,v.Louis Paul MATRANGA, Appellant.UNITED STATES of America, Appellee,v.William Steven COOK, Appellant.UNITED STATES of America, Appellee,v.Richard Brent HOGAN, Appellant. Nos. 14974-14983. United States Court of Appeals,Fourth Circuit. May 4, 1972. ORDER 1 On reconsideration en banc, the decision of the district court with respect to the question of double jeopardy is affirmed by an equally divided court. 2 The cases are remanded by the full court to the original panel for disposition of the remaining questions on appeal.

379 B.R. 40 (2007) In re SUMMIT METALS, INC., Debtor. No. 98-2870-KJC. United States Bankruptcy Court, D. Delaware. December 4, 2007. *41 *42 *43 *44 *45 Jennifer Lee Scoliard, Philadelphia, PA, Joanne. Bianco Wills, Klehr Harrison Harvey Branzburg & Ellers, Steven K. Kortanek, Womble Carlyle Sandridge & Rice, PLLC, Wilmington, DE, for Debtor. Joseph J. Bodnar, Esq., Law Offices of Joseph J. Bodnar, Kevin J. Mangan, Womble Carlyle Sandridge & Rice PLLC, Wilmington, DE, for trustee. Barry M. Klayman, Todd Charles Schiltz, Esq., Wolf, Block, Schoor & Solis-Cohen LLP, Wilmington, DE, H. Adam Prussin, Pomerantz Haudek Block Grossman & Gross, New York, NY, for Creditor Committee. OPINION[1] KEVIN J. CAREY, Bankruptcy Judge. INTRODUCTION JEPSCO, Ltd. ("Jepsco") and Ambrose M. Richardson, Esq. ("Richardson") have filed applications seeking the allowance of fees and expenses as administrative expenses pursuant to section 503(b) of the Bankruptcy Code. The Chapter 11 Trustee, the United States Trustee, and the Official Committee of Unsecured Creditors (the "Committee") (collectively, the "Objecting Parties") have objected. The Court held evidentiary hearings on February 23, March 16, and April 4, 2006 and accepted post-hearing briefs from the parties. For the reasons set forth below, the Court will deny Jepsco's request and grant in part and deny in part Richardson's request. BACKGROUND A. The Summit Metals Bankruptcy and the Events Preceding A brief explanation of the events leading to and surrounding the filing of this chapter 11 proceeding (the "Case")[2] is helpful to the resolution of the instant dispute. *46 1. The New York Proceedings During the period from 1991 to 1995, Richard E. Gray, the sole director and majority shareholder of The Chariot Group, Inc. ("Chariot") caused Chariot to pay approximately $7.7 million in fees to its indirect majority shareholder, Chariot Holdings Ltd. ("Chariot Holdings"), and to VDC Recovery Corporation, a Gray-controlled entity. During this time, Gray also caused Chariot to write-off loans it had made to Chariot Holdings and to Gray. These events led to the August 1995 filing of a New York shareholder lawsuit against Gray (the "First N.Y. Shareholder Lawsuit"). After the commencement of the First N.Y. Shareholder Lawsuit, Gray attempted to sell Chariot's operating subsidiaries — Energy Savings Products, Inc. ("ESP"), in which Chariot held a 92% interest, and B.F. Rich Co., Inc. ("B.F.Rich"), ESP's wholly-owned subsidiary. Gray was successful in June 1995, causing Chariot to sell its interest in ESP to Homestar Acquisition Corporation ("Homestar Acquisition"), a company wholly owned by Gray. In exchange for ESP's stock, Gray arranged for Chariot to receive a $15 million note (the "Note") from Hallowell Industries, Inc. ("Hallowell"), another entity owned and controlled by Gray. Following the sale of ESP to Homestar Acquisition, Gray merged Homestar Acquisition into ESP. The Note remains unpaid. In August 1995, Gray merged Summit Metals, Inc. ("Summit" or the "Debtor") with Chariot, transferred the remaining Chariot operations to Chariot Management, Inc., another entity affiliated with Gray, and shut down Chariot operations. The events surrounding the Summit/Chariot merger led to the filing of a second shareholder lawsuit (the "Second N.Y. Shareholder Lawsuit," together, with the First N.Y. Shareholder Lawsuit, the "NY Shareholder Lawsuits"). In October 1996, the plaintiffs in the N.Y. Shareholder Lawsuits successfully obtained preliminary injunctive relief with respect to the: (i) alleged looting of Chariot by Gray; (ii) sale of Chariot's interest in ESP to Homestar Acquisition; and (iii) merger of Chariot into Summit (the "Preliminary Injunction Proceeding"). As a result, Gray was enjoined from transferring any of ESP's assets to himself or any other entity that he owned or controlled (the "Preliminary Injunction"). In October 1998, Gray was found to have violated the Preliminary Injunction by misappropriating $4.3 million from ESP and was held in civil contempt (the "Contempt Proceeding"). An order was entered in January 1999 providing Gray an opportunity to purge the judgement of contempt by returning the $4.3 million. However, Gray refused to do so. He was committed to prison from November 2001 until November 2003, at which time he stipulated to deposit the stock of the Debtor, ESP, Rivco (as defined below), and Jenkins (as defined below) into escrow pending the resolution of the DE Adversary Proceeding (as defined below). 2. The Delaware Proceedings On December 30, 1998, the Debtor commenced this Case, seeking protection under chapter 11 of the Bankruptcy Code. The filing of the petition stayed the N.Y. Shareholder Lawsuits. The Committee was formed by the United States Trustee on March 4, 1999. Richardson, the former *47 partner of Gray and officer of Chariot and its subsidiaries, was appointed as its Chairman. On October 1, 2004, the Court appointed Francis A. Monaco, Jr. as the Chapter 11 Trustee. On October 29, 1999, the Committee filed a complaint on behalf of the Debtor to recover property from Gray and his affiliated entities, including ESP (the "DE Adversary Proceeding"). The Complaint alleged that Gray breached his fiduciary duties owed to the Debtor and Chariot by engaging in unfair and fraudulent self-dealing transactions, which included the looting of Chariot from 1991 to 1995 and the sale of Chariot's interest in ESP for the unpaid Note. The Complaint also alleged that, following the shut-down of Chariot's operations, Gray took two corporate opportunities of the Debtor when he acquired ownership in Riverside Millwork Co., Inc. ("Rivco") and Jenkins Manufacturing, Inc. ("Jenkins") with the Debtor's money. On August 6, 2004, the District Court for the District of Delaware found for the Debtor, awarding a $40 million judgment against Gray and directing Gray and his affiliated entities to transfer their interests in Rivco and Jenkins to the Debtor. In 2005, the Debtor sold its interests in Rivco and Jenkins — the estate's only marketable assets — for approximately $18 million. 3. Miscellaneous Relevant Proceedings In 1997, creditors commenced an involuntary bankruptcy proceeding against Homestar Industries, Inc. ("Homestar"), another entity owned by Gray, in the Eastern District of Missouri (the "MO Bankruptcy Proceeding"). A chapter 7 trustee was subsequently appointed, who recovered approximately $600,000 in insurance proceeds misappropriated by Gray from Homestar (the "MO Adversary Proceeding"). While in prison for contempt, Gray pled guilty to bankruptcy and tax fraud relating to the MO Bankruptcy Proceeding (the "MO Criminal Proceeding"). Additional unrelated criminal investigations into Gray's activities also occurred in Connecticut and New York. In 2000, while the DE Adversary Proceeding was pending, creditors of ESP commenced an involuntary bankruptcy proceeding against it in the Middle District of Tennessee (the "TN Bankruptcy Proceeding"). Following the commencement of the TN Adversary Proceeding (as defined below), the Committee dismissed ESP as a defendant from the DE Adversary Proceeding. The Committee then filed a proof of claim on behalf of the Debtor in the TN Bankruptcy Proceeding. To resolve ESP's objection to the Debtor's proof of claim, the Committee agreed to relinquish the Debtor's claim against ESP in exchange for 92% of ESP's outstanding equity post-bankruptcy and any of ESP's rights or causes of action against Gray or his affiliated entities, including any Rivco and Jenkins corporate opportunity Claims. In 2001, Richardson commenced a lawsuit in New Hampshire against Gray and his affiliated entities on the Debtor's behalf, alleging claims identical to those alleged in the DE Adversary Proceeding (the "NH Proceeding"). The NH Proceeding was stayed shortly thereafter. 4. Proceedings Against Richardson Four separate proceedings filed against Richardson are relevant here. First, prior to the filing of this Case, Gray and Summit sued Richardson in New York, alleging that Richardson violated his fiduciary duties as an officer of Chariot (the "Richardson Fiduciary Duty Proceeding"). Ultimately, the Richardson Fiduciary Duty Proceeding was dismissed and Summit was *48 held responsible to indemnify Richardson for his fees and expenses. In 1998, a portion of Richardson's fees and expenses incurred in the Richardson Fiduciary Proceeding was reimbursed by Summit. It was this reimbursement that was the subject of the second proceeding against Richardson. In May 1999, following the commencement of this Case, the Debtor filed an adversary proceeding against Richardson seeking the avoidance and recovery of the reimbursement as an alleged preference (the "Richardson Preference Proceeding"). The third proceeding against Richardson was commenced in August 1999 by the Debtor and alleged racketeering, conspiracy, tortious interference with a contract and economic relations, prima facie tort, abuse of process, breach of fiduciary duty, and vexatious litigation (the "Richardson Racketeering Proceeding"). The life span of the Richardson Racketeering Proceeding was short as it was dismissed after ten days. The fourth and final proceeding against Richardson was commenced by ESP after the filing of the TN Bankruptcy Proceeding. ESP filed suit against the Committee, Richardson, and their individual lawyers and law firms, alleging that the DE Adversary Proceeding violated the automatic stay (the "TN Adversary Proceeding"). ESP also sought punitive damages from Richardson, arguing that his failure to prosecute certain objections he raised in the TN Bankruptcy Proceeding amounted to egregious conduct. B. Procedural History On February 11, 2005, Jepsco filed its application (the "Application" or "Jepsco Application") seeking the allowance of fees and expenses totaling $78,366.78 as an administrative expense under section 330 of the Bankruptcy Code. Jepsco subsequently amended its Application (the "Amended Application" or "Jepsco Amended Application") on April 26, 2005 to seek the allowance of its fees and expenses under section 503(b)(3)(D) for its "substantial contribution" to the Case. The Objecting Parties have argued, inter alia, that: (i) Jepsco lacks standing under section 503(b)(3)(D); (ii) Jepsco did not substantially contribute to the Debtor's estate or creditors; and (iii) even if Jepsco substantially contributed, Jepsco is ineligible to seek its fees as an administrative expense. On February 15, 2005, Richardson filed his application (the "Application" or "Richardson Application") seeking the allowance of fees and expenses totaling $877,752.59 as an administrative expense under sections 507(a)(1) and 503(b). Richardson subsequently amended his Application (the "Amended Application" or "Richardson Amended Application") on March 13, 2006, reducing his request to $869,631.50 and relying only upon sections 503(b)(1)(A),[3] 503(b)(3)(B), (C), (D), and (F), and 503(b)(4). On April 3, 2006, Richardson supplemented (the "Supplement") his Amended Application with more detailed invoices and further amended his request to remove section 503(b)(3)(B) as a supporting provision.[4] The Objecting Parties *49 have argued, inter alia, that: (i) Richardson is unable to collect his expenses under section 503(b)(1)(A) because they did not arise from a post-petition transaction with the Debtor or provide an actual benefit to the Debtor's estate; (ii) Richardson cannot collect expenses under section 503(b)(3)(C) because the criminal matters in which he assisted do not relate to the Case, the Debtor's business or its property; (iii) Richardson cannot recover his expenses under section 503(b)(3)(D) because his efforts failed to make a substantial contribution to the Debtor's estate or creditors; (iv) by the plain language of the statute, Richardson is unable to recover his fees under sections 503(b)(3)(C), (D), and (F); and finally, (v) Richardson cannot recover his fees under section 503(b)(4) because his status as an attorney does not entitle him to recover his professional rate, his efforts were duplicative, his fees are unreasonable, and his invoices are vague and ambiguous. DISCUSSION In deciding whether to grant the relief sought in the Jepsco Amended Application, the Court is called upon to determine: (i) whether Jepsco is eligible to pursue an administrative expense claim under section 503(b)(3)(D); (ii) if so, whether Jepsco substantially contributed to the Debtor's chapter 11 case; and (iii) whether Jepsco can recover its fees under sections 503(b)(3)(D) or 503(b)(4). In deciding whether to grant the relief sought in the Richardson Amended Application, the Court is called upon to determine: (i) whether Richardson's expenses qualify for reimbursement under sections 503(b)(1)(A) and 503(b)(3)(C), (D) or (F); and (ii) whether Richardson's fees qualify for reimbursement under section 503(b)(4). I. Jepsco Amended Application A. Jepsco is eligible to pursue administrative allowance of expenses but not fees In its Amended Application, Jepsco relies upon section 503(b)(3)(D) to seek an administrative expense recovery of $76,344 in fees and $2,022.78 in expenses. Under 11 U.S.C. § 503(b)(3)(D), the Court may allow as administrative expenses, the actual, necessary expenses, other than compensation and reimbursement specified in [section 503(b)(4)], incurred by . . . a creditor, an indentured trustee, an equity security holder, or a committee representing creditors or equity security holders other than a committee appointed under section 1102 of this title, in making a substantial contribution in a case under chapter 9 or 11 of this title. . . . The Objecting Parties argue that Jepsco is ineligible to recover its fees and expenses under this provision because (i) Jepsco is not "a creditor, an indentured trustee, an equity security holder or a committee representing creditors or equity security holders[;]" and (ii) section 503(b)(3)(D) does not permit the recovery of compensation. In defending its eligibility under section 503(b)(3)(D), Jepsco argues that the approximate $1 million claim held in this Case by James T. Kelly ("Kelly"), Jepsco's president, chief executive officer, sole director, *50 and sole employee, qualifies it as a creditor of the Debtor. According to Kelly, he used Jepsco as his alter ego and often operated Jepsco under his name. (Hr'g Tr. 37:20-38:1, Feb. 23, 2006.) Essentially, Jepsco asserts that Jepsco and Kelly are the same entity. The Court will consider the Jepsco Amended Application under section 503(b)(3)(D). The evidence submitted indicates that the totality of fees and expenses requested in the Jepsco Amended Application were generated solely by Kelly. At first, Kelly drafted the Jepsco Application improperly and without the assistance of counsel. (Hr'g Tr. 39:22-24, Feb. 23, 2006.) Thereafter, with the help of counsel, Kelly sought to adopt the Application for himself. The Court finds no reason to refuse such a request and will reach the merits of the Jepsco Amended Application.[5] Although the Court concludes that Kelly may adopt the Jepsco Amended Application for himself, Kelly is eligible to pursue only an award of expenses — not fees — under section 503(b)(3)(D). The plain language of section 503(b)(3)(D) is clear that an applicant who substantially contributes to a debtor's estate and creditors m ay be awarded only actual and necessary expenses. For an award of compensation, applicants must rely on section 503(b)(4), which allows as an administrative expense, reasonable compensation for professional services rendered by an attorney or an accountant of an entity whose expense is allowable under [section 503(b)(3)], based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title, and reimbursement for actual, necessary expenses incurred by such attorney or accountant. . . . 11 U.S.C. § 503(b)(4) (emphasis added). In the instant case, the Objecting Parties have argued that section 503(b)(4) cannot apply because Kelly is neither an accountant nor a lawyer. The Court agrees. Kelly operates and provides the services of a "management consulting firm." (Hr'g Tr. 36:8, Feb. 23, 2006.) Therefore, because Kelly cannot meet the standard for eligibility under section 503(b)(4), the Court must deny Jepsco's request for allowance of $76,344 in fees. B. Jepsco did not substantially contribute to the Debtor's estate or creditors Under section 503(b)(3)(D), Kelly can recover his remaining $2,022.78 in expenses if he proves by a preponderance of the evidence that he incurred the expenses as a result of activities which substantially contributed to the Debtor's estate or creditors. See, e.g., In re Buckhead Am. Corp., 161 B.R. 11, 15 (Bankr.D.Del.1993) ("Because creditors are presumed to act primarily in their own interest and not for the benefit of the estate as a whole, they have the burden of proving that they made the requisite substantial contribution."). The Bankruptcy Code does not define "substantial contribution." However, courts have determined that an applicant's activities substantially contribute if they "`resulted in an actual and demonstrable benefit to the debtor's estate and the creditors.'" Lebron v. Mechem Fin. Inc., 27 F.3d 937, 944 (3d Cir.1994) (quoting Haskins v. United States (In re Lister), 846 F.2d 55, 57 (10th Cir.1988)). The activities must "facilitate progress in the case, rather than . . . retard or interrupt." In re Gurley, 235 B.R. 626, 636 (Bankr. W.D.Tenn.1999). *51 Courts have examined several factors to determine whether applicants' efforts have substantially contributed, including: "whether the services were provided to benefit the estate itself or all of the parties in the bankruptcy case; whether the services conferred a direct benefit upon the estate; and whether services were duplicative of services performed by others." Id.; accord Buckhead, 161 B.R. at 15; In re FRG, Inc., 124 B.R. 653, 658 (Bankr.E.D.Pa.1991); In re Alert Holdings Inc., 157 B.R. 753, 757 (Bankr. S.D.N.Y.1993). Additionally, courts have considered the motivation of the applicant, holding that applicants who act "primarily to serve their own interests and . . . [who would have acted] absent an expectation of reimbursement from the estate" cannot be compensated under section 503(b)(3)(D). Lebron, 27 F.3d at 944 (emphasis added). If the benefit received by the estate was incidental "arising from activities the applicant has pursued in protecting his or her own interests[,]" courts have found an applicant's contribution insubstantial. Id. It is undisputed that Kelly participated voluntarily, not only in this Case and the DE Adversary Proceeding, but also in several of the miscellaneous yet relevant proceedings. More specifically, Kelly provided deposition testimony to aid the DE Adversary Proceeding, testified in this Case to fight against consolidation, reviewed and assembled files in anticipation of the DE Adversary Proceeding, and attended approximately ten meetings with the Committee in preparation for the DE. Adversary Proceeding. Moreover, Kelly met with ESP's general counsel to review business records, met with BF Rich's attorneys and Rivco and Jenkins shareholders to discuss monetary demands from Gray, met with U.S. Attorneys in Missouri, Connecticut, and New York as well as the Federal Bureau of Investigation (the "FBI") and the Internal Revenue Service (the "IRS"), and testified at the Contempt Proceeding and the TN Bankruptcy Proceeding's sale hearing. (Jepsco App. 6-8.) Kelly asserts that his efforts substantially contributed to this Case because: (i) his efforts "prevented Gray from pilfering money from what ultimately would be part of the Summit estate, [he] organized documents and exhibits, and helped send Gray to jail so this [C]ase could proceed" (Jepsco Post-Hr'g Br. 5);. (ii) the DE Adversary Proceeding, in which he participated, "conferred substantially all, if not all, of the assets on the Debtor's estate" (Jepsco Post-Hr'g Br. 5); and (iii) he "lessened the burden on the [d]ebtors' professionals and expedited a smooth transition through the bankruptcy process" (Jepsco Post-Hr'g Br. 9 (alteration in original) (citation omitted)). The Objecting Parties disagree with Kelly's assessment of his efforts' effect on the Debtor's estate and creditors. First, the Objecting Parties argue that any contribution conferred upon this Case was merely incidental, because Kelly's primary motive in assisting the parties was to acquire Rivco and Jenkins from the Committee. Second, the Objecting Parties contend that Kelly's assistance in the TN Bankruptcy Proceeding, the various criminal investigations, the Contempt Proceeding, and the BF Rich, Jenkins and Rivco matters did not relate to this Case and, therefore, no benefit was conferred. Finally, the Objecting Parties assert the success of the DE Adversary Proceeding resulted from the Committee's efforts and that Kelly's testimony could have been compelled through the Federal Rules of Civil Procedure. The Court agrees with the Objecting Parties and concludes that Kelly's activities did not make a substantial contribution to this Case. First, the record fails *52 to establish how Kelly's activities in the criminal investigations, the TN Bankruptcy Proceeding, and the BF Rich matter or even how those matters themselves — conferred a direct benefit on the Debtor's estate, and creditors. Kelly testified that the criminal investigations led to the indictment of Gray in Missouri and Connecticut, may have reduced the IRS's claim in this Case, and placed the IRS in a position to seize Gray's assets. (Hr'g Tr. 281:18-283:1, Apr. 4, 2006.) Kelly also testified that ESP, along with its subsidiary, BF Rich, "were part of the umbrella of Summit Metals" (Hr'g Tr. 41:13-15, Feb. 23, 2006), thereby implying that any contribution to the TN Bankruptcy Proceeding and BF Rich matter contributed to this Case. However, there is no evidence proving that Kelly's efforts in the TN Bankruptcy Proceeding, the BF Rich matter, and the criminal investigations increased the assets of this Case or prevented them from diminishing. See In re Granite Partners, L.P., 213 B.R. 440, 446 (Bankr.S.D.N.Y. 1997) ("[I]nsubstantial services include those that do not actually increase the size of the estate. . . ."); Marcus Montgomery Wolfson & Burten P.C. v. AM Int'l (In re AM Int'l, Inc.), 203 B.R. 898, 904 (D.Del. 1996) (finding that the applicants substantially contributed because their negotiations allowed the creditors committee to receive full payment on their claims). Kelly's actions may have helped the TN Bankruptcy Proceeding by stopping the flow of money from BF Rich to Gray and helping the IRS pursue claims against Gray but none of Kelly's actions have been proven to have increased or maintained the assets of the Debtor. Kelly himself admits this. (See generally Hr'g Tr. 253:1-300:2, Apr. 4, 2006.) Moreover, there is no indication that, absent Kelly's efforts, a different outcome would have been produced in this Case. See, e.g., Lebron, 27 F.3d at 946 (holding that the applicant's contributions were substantial because they were "critical" to both the court and the trustee); Granite, 213 B.R. at 449 ("Here, the applicants' objections to the disclosure statement did not alter the character of the document, and did not, therefore, rise to the level of a substantial contribution."); In re Columbia Gas Sys., Inc., 224 B.R. 540, 552 (Bankr.D.Del.1998) ("Exxon's activities were not of the type that if absent, progress towards reorganization of [the Debtor] would have been substantially diminished."). Second, although Kelly's request of and participation in meetings of the Jenkins and Rivco shareholders may have stopped monetary payments to Gray, which ultimately may have decreased Jenkins' and Rivco's sale value, the record shows that Kelly's motivation for participating in the meetings stemmed from his minority shareholder positions in Rivco and Jenkins. (Hr'g Tr. 50:24-51:2, Feb. 23, 2006 ("[B]oth Ailward and I were shareholders of Jenkins and Rivco, and so we though it was a pretty good idea to find out whether or not these companies were being denuded by Gray. . . . ").) According to Kelly, his primary concern was to prevent Rivco and Jenkins from "paying money out that had been prohibited by a restraining order." (Hr'g Tr. 286:1-3, Apr. 4, 2006.) Therefore, because Kelly requested and participated in the meetings for the purpose of protecting Rivco and Jenkins, any benefit accruing to this Case as a result of these efforts was merely incidental. See, e.g., Mfrs. Hanover Trust Co. v. Bartsh (In re Flight Transp. Corp. Sec. Litig.), 874 F.2d 576, 583 (8th Cir.1989) (finding lack of substantial contribution where Indenture trustee's services, which included monitoring of and intervention in security and bankruptcy litigation, filing proofs of claims, and communicating and advising its clients, were designed primarily to benefit *53 its clients); In re Lister, 846 F.2d at 57 (denying reimbursement for the applicant's pre-petition efforts to collect a judgment when he "was unaware of the pendency of bankruptcy proceedings[,]" and thus, were solely for his own interest); Columbia Gas, 224 B.R. at 549 (noting, as a factor in its decision to withhold reimbursement, the applicant's "strong economic self-interest" in the global settlement); FRG, 124 B.R. at 659 (holding that potential purchasers of the debtors' assets did not substantially contribute to the `estate by participating in the bidding process because their actions were "primarily on behalf of their own interests"). Finally, although the Contempt Proceeding and the DE Adversary Proceeding substantially contributed to this Case by ultimately providing for the recovery and sale of the Jenkins and Rivco stock, the Court cannot find that Kelly's testimony and fact-finding assistance in those proceedings substantially contributed. While it is true that Kelly's participation in the DE Adversary Proceeding was extensive, totaling approximately eighty hours, "extensive participation in a case, without more, is insufficient to compel compensation." Gurley, 235 B.R. at 636. Kelly relies on In re Essential Therapeutics, Inc., 308 B.R. 170 (Bankr.D.Del. 2004), arguing that his extensive participation "`lessened the burden on the [d]ebtors' professionals and expedited a smooth transition through the bankruptcy process.'" (Jepsco Post-Hr'g Br. 9 (alteration in original) (quoting Essential, 308 B.R. at 176).) Kelly's reliance on Essential is misplaced. In Essential, the applicants assisted the estate by taking over a portion of the debtors' counsel's responsibilities. For example, the applicants drafted key plan provisions, participated in hearings, and prepared necessary corporate documents. The Essential Court held that "[w]ithout this assistance, the [d]ebtors' counsel would have had to devote significant time and resources to perform these services. . . . As a result, the Debtors were able to cut costs by focusing their efforts on their areas of expertise and allowing the [applicants] to assist where appropriate. . . ." Essential, 308 B.R. at 176, Here, unlike the applicants in Essential, Kelly's testimony and fact-finding assistance did not relieve the Committee of any of its duties or enable the Committee to focus its attention elsewhere. Essential is inapplicable here. The success of the Contempt Proceeding and the DE Adversary Proceeding did not result solely from Kelly's efforts, but rather, from the participation of many, including the Objecting Parties, the plaintiffs of the N.Y. Shareholder Lawsuits, and their respective attorneys.[6]See, e.g., In re Worldwide Direct, Inc., 334 B.R. 112, 125 (Bankr.D.Del.2005) (concluding that applicant's participation in a sale did not substantially contribute because there was "no evidence what amount was due solely (or even primarily) to [the applicant's] efforts. . . . [and the applicant] acknowledges that it was one of many parties participating in the negotiations"); Columbia Gas, 224 B.R. at 549 (noting, as one of the court's reasons for denying reimbursement, that *54 the settlement, which provided $550 to $600 million in estate value, required the participation of many). Finally, the Court is unwilling to award reimbursement under section 503(b)(3)(D) for an applicant's time and effort in testifying. The Court agrees with the reasoning set forth in In re Gherman, 105 B.R. 714, 717 (Bankr.S.D.Fla.1989): "Virtually all litigation is dependent to some degree upon the testimony and, therefore, the time and effort, of lay witnesses. A witness subject to a court's subpoena power, who voluntarily furnishes evidence, is simply performing a civic duty." Reimbursing a lay witness who provides testimony for the prevailing party would encourage lay witnesses to demand reimbursement from a debtor regardless of the substance or significance of the testimony, thereby adding an unwelcome incentive to the process. Therefore, because the Court has determined that Kelly's efforts throughout the TN Bankruptcy Proceeding, the BF Rich, Rivco, and Jenkins matters, the various criminal investigations, the DE Adversary Proceeding, and the Contempt Proceeding did not substantially contribute to this Case, Jepsco's request for an allowance of $2,022.78 in administrative expenses will be denied. C. Jepsco failed to meet its burden of proving that its expenses are actual and necessary Even if this Court concludes that Kelly's efforts substantially contributed to the Debtor's estate and creditors, the Court cannot award Kelly his expenses because he has failed to meet his burden of proving that they are actual and necessary. Under section 503(b)(3)(D), a finding of substantial contribution is only the first step. After such a finding, the Court must determine whether an applicant's expenses were actual and necessary. The applicant must provide sufficient details of each expense incurred for which reimbursement is sought. See generally In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 584 (Bankr.D.Utah 1985) (noting that required details include the date, type, and amount of each expense). Local Rule 2016-2 provides guidance to applicants. It requires that an applicant requesting payment of an administrative expense under section 503(b)(3) must provide the Court with "an expense summary by category for the entire period of the request. Examples of such categories are computer-assisted legal research, photocopying, outgoing facsimile transmissions, airfare, meals and lodging." Del. Bankr.L.R. 2016-2(e). Additionally, each expense within each category must be itemized, with "the date the expense was incurred, the charge and the individual incurring the expense, if available." Id. In the Jepsco Application, which provides the only expense detail submitted to the Court, Kelly's activities from February 2001 until February 2004 are listed with some detail, but his expenses are merely totaled and listed under each activity. For example, Kelly's submission for February 2001 states: "Meeting in Counsel's office regarding transfer of records (HR) Expense: $32." (Jepsco App. 6.) The Application does not provide any explanation of the expenses except for the January 2004 expense described as "hotel 2 nights and late check out." (Jepsco App. 8.) Moreover, the testimony of both Richardson and Kelly provides no additional insight. Consequently, without any supporting detail, the Court is unable to award Kelly's requested expenses. See, e.g., Jensen-Farley, 47 B.R. at 584 ("Undocumented expenses will not be allowed."); Worldwide Direct, 334 B.R. at 120 (holding that "a request for an *55 administrative claim under section 503(b) requires the same level of documentation and substantiation as a request for compensation under section 330"); In re F.A. Potts & Co., Inc., 114 B.R. 92, 94-95 (Bankr.E.D.Pa.1990) (denying the reimbursement of "administrative costs" for the applicant's failure to specify its components). II. Richardson Amended Application A. Section 503(b)(1)(A) Richardson relies upon section 503(b)(1)(A) to seek an administrative expense recovery of $618,995.87[7] in fees and $82,358.20 in expenses. Part of Richardson's claim is comprised of the Richardson Fiduciary Duty Proceeding indemnification award and his subsequent collection costs. The collection costs include Richardson's fees and expenses incurred for efforts in this Case, the DE Adversary Proceeding, the MO Bankruptcy Proceeding, the MO Adversary Proceeding, the MO Criminal Proceeding, the TN Bankruptcy Proceeding, the TN Adversary Proceeding, the NH Proceeding, the Richardson Preference Proceeding, the Richardson Racketeering Proceeding, the Contempt Proceeding, and the Preliminary Injunction Proceeding, taken to recover assets for the estate so that he could collect his indemnification award (the "Collection Costs"). According to Richardson, lie is entitled to an award of the Collection Costs because of Chariot's corporate by-laws, providing indemnification "to the fullest extent now or hereafter permitted by law" (Richardson Post-Hr'g Br. 3), and the Delaware Supreme Court's decision in Stifel Financial Corp. v. Cochran, 809 A.2d 555 (Del. 2002), permitting the indemnification of expenses incurred by a corporate officer in successfully prosecuting an indemnification suit under 8 Del. C. § 145(a)[8] (Richardson Post-Hr'g Br. 3-4). In response to Richardson's request, the Objecting Parties argue that an indemnification award of Collection Costs is improper because: (i) Richardson failed to introduce into evidence the Chariot bylaws; (ii) the Stifel decision does not entitle Richardson to receive indemnification for the Collection Costs; and (iii) the Collection Costs are unreasonable. Additionally, even if the Court awards Richardson the Collection Costs, the Objecting Parties assert that Richardson's entire indemnification claim under section 503(b)(1)(A) is improper because it did not arise out of a postpetition transaction between the Debtor and because Richardson's actions did not directly and substantially benefit the estate. It is unnecessary for the Court to decide whether Richardson is entitled to an award of his Collection Costs. Even if the Court awarded them, Richardson's indemnification claim is not entitled to administrative status. Under 11 U.S.C. § 503(b)(1)(A), the Court may allow as administrative expenses, "the actual, necessary costs and expenses of preserving the *56 estate, including wages, salaries, commissions for services rendered after the commencement of the case." For a request to be allowed under section 503(b)(1)(A), the applicant must prove that "the debt [arises] from a transaction with the debtor-in-possession . . . [and] the consideration supporting the claimant's right to payment [is] beneficial to the debtor-in-possession in the operation of the business.'" Calpine Corp. v. O'Brien Envtl. Energy, Inc. (In re O'Brien Envtl. Energy, Inc.), 181 F.3d 527, 532-33 (3d Cir.1999) (quoting Cramer v. Mammoth Mart, Inc. (In re Mammoth Mart, Inc.), 536 F.2d 950, 954 (1st Cir.1976) (first alterations in original)); accord In re Women First Healthcare, Inc., 332 B.R. 115, 121 (Bankr.D.Del.2005); In re Pinnacle Brands, Inc., 259 B.R. 46, 51 (Bankr.D.Del.2001); In re Mid-American Waste Sys., Inc., 228 B.R. 816, 821 (Bankr.D.Del.1999); In re Phila. Mortgage Trust, 117 B.R. 820, 827 (Bankr.E.D.Pa. 1990). In this Case, Richardson's section 503(b)(1)(A) indemnification claim fails because it did not arise from a transaction with the Debtor. Rather, it arose from the Richardson Fiduciary Duty Proceeding, which was filed pre-petition and stemmed from Richardson's pre-petition conduct as an officer of Chariot. Consistently, courts have held that an indemnification claim based upon pre-petition services or conduct is not a cost or expense for "services rendered after the commencement of a case." 11 U.S.C. § 503(b)(1)(A). Instead, it is a form of prepetition compensation for services that is not entitled to administrative expense priority. See, e.g., Pinnacle, 259 B.R. at 51-52 (denying administrative status to applicant's indemnification claim arising from a contract executed pre-petition); Mid-American, 228 B.R. at 821-22 (refusing to award administrative expense status for indemnification claims arising from securities litigation, which arose pre-petition out of the applicants' pre-petition conduct); In re Overland Park Fin. Corp., 240 B.R. 402, 405-06 (Bankr.D.Kan.1999) (refusing to grant administrative expense priority to former officer/director's indemnification claim for expenses incurred in a lawsuit based upon his pre-petition actions); Houbigant Inc. v. ACB Mercantile, Inc. (In re Houbigant, Inc.), 188 B.R. 347, 359 (Bankr.S.D.N.Y.1995) (holding that because the agreement at issue was executed pre-petition, any contractual right to indemnification arising therefrom would be a pre-petition unsecured claim); In re Highland Group, Inc., 136 B.R. 475, 481 (Bankr.N.D.Ohio 1992) (same); Phila. Mortgage, 117 B.R. at 828-30 (finding that claims based upon pre-petition conduct cannot be afforded administrative expense priority because claims must arise postpetition); In re Amfesco Indus., Inc., 81 B.R. 777, 784 (Bankr.E.D.N.Y.1988) (same); cf. In re Heck's Props., Inc., 151 B.R. 739, 767-68 (S.D.W.Va.1992) (awarding administrative cost priority to officers' and directors' indemnification claims that arose from a lawsuit based upon their post-petition conduct and services). The remainder of Richardson's section 503(b)(1)(A) claim is comprised of his time and expenses spent on Committee matters. According to Richardson, his time and expenses devoted to Committee matters — and also to collecting his indemnification award — are entitled to priority under section 503(b)(1)(A) because his efforts enabled the recovery of assets for the estate. (Supplement 5-6.) "One of the main policies underlying section 503(b)(1)(A) is to provide an incentive for creditors and others to continue or commence doing business with an insolvent entity." 4 COLLIER ON BANKRUPTCY ¶ 503.06[2] (Alan N. Resnick et al. eds., 15th ed. rev.2006); see also Mammoth *57 Mart, 536 F.2d at 954 ("[I]f a business is to be reorganized, third parties must be willing to provide the necessary goods and services. Since they clearly will not do so unless their claims for payment will be paid ahead of the pre-petition debts and liabilities of the debtor, [the Code] provides a priority for expenses incurred by the debtor-in-possession in order to maintain, preserve, or rehabilitate the bankrupt estate."). Thus, a section 503(b)(1)(A) applicant must demonstrate that "the costs and fees for which it seeks payment provided an actual benefit to the estate and that such costs and expenses were necessary to preserve the value of the estate assets." O'Brien Envtl., 181 F.3d at 533 (citations omitted) (emphasis added), Examples of costs and expenses often awarded priority under section 503(b)(1)(A) are "outlays for repairs, upkeep, freight, [and] insuring the value of the property. . . . [as well as] for storage of property, for rent and for other goods and services incidental to protecting, conserving, maintaining and rehabilitating the estate. . . ." 4 COLLIER ON BANKRUPTCY at ¶ 503.06[1]. In the instant case, although Richardson argues extensively that he conferred an actual benefit to the estate, he failed to establish that his costs and expenses were necessary to preserve the value of estate assets. Therefore, Richardson has failed to meet the burden required under section 503(b)(1)(A). Richardson's request for an administrative expense priority claim under section 503(b)(1)(A) will be denied. B. Section 503(b)(4) Richardson seeks reimbursement of fees totaling $711,326.65 under section 503(b)(4).[9] As set forth above, section 503(b)(4) allows for the reimbursement of "reasonable compensation for professional services rendered by an attorney or an accountant of an entity whose expenses is allowable under [section 503(b)(3)]. . . ." As indicated by the plain language of the statute, the issue of whether fees can be awarded as administrative expenses under section 503(b)(4) typically is not decided until after the Court allows an administrative expense recovery under section 503(b)(3). Nevertheless, the Court will address section 503(b)(4) first, but concludes that Richardson's request must be denied. Richardson, an attorney admitted to practice in the state of New York, has submitted his fee request under section 503(b)(4) and seeks reimbursement of his and his employees' legal services in the N.Y. Shareholder Lawsuits, the Contempt Proceeding, the Preliminary Injunction Proceeding, this Case, the DE Adversary Proceeding, the MO Bankruptcy Proceeding, the MO Adversary Proceeding, the MO Criminal Proceeding, the TN Bankruptcy Proceeding, the TN Adversary Proceeding, the NH Proceeding, the Richardson Fiduciary Duty Proceeding, the Richardson Preference Proceeding, and the Richardson Racketeering Proceeding. Services included drafting, reviewing and filing pleadings, undertaking discovery, providing advice, performing research, and developing legal theories. (Richardson Post-Hr'g Br. 16.) Richardson's time has been billed at the rate of $250-275 per hour, his associate's time at $150 per hour, *58 and his paralegal's time at $75 per hour. (Richardson Am.App. 8.) The Objecting Parties have argued that Richardson was not employed as an attorney for any party and, therefore, is seeking improperly an hourly wage for services he provided while representing himself. In support of this argument, the Objecting Parties rely on In re Gimelson, Nos. 04-3216, 00-11773F, 2004 WL 2713059 (E.D.Pa. Nov.23, 2004), and In re Pappas, 277 B.R. 171 (Bankr.E.D.N.Y. 2002), both of which are helpful to the Court's present inquiry. In Gimelson and Pappas, attorneys sought reimbursement of their time devoted to assisting trustees in the recovery of assets. Both courts denied the requests. The Pappas Court reasoned: "The mere fact that the creditor happens to be an attorney who bills $250 per hour does not change the inquiry. Section 503(b) provides that `actual' `expenses' may be afforded administrative expense status. Marshall's billable time, although valuable, was not an `actual expense' to Marshall." 277 B.R. at 177. The Gimelson Court agreed with the Bankruptcy Court, which held, "Section 503(b)(4) does not include the time spent by a creditor who represents himself and has not incurred any attorney's fees, but affords an administrative priority to reimburse a creditor for compensation paid for professional services provided by an attorney for an entity." 2004 WL 2713059, at *22. The Court agrees with the reasoning of Pappas and Gimelson. The fact that Richardson is an attorney does not change the relevant inquiry of eligibility under section 503(b)(4). Only "an attorney or an accountant of an entity whose expense is allowable under [section 503(b)(3)]" is eligible for reimbursement of the "actual and necessary expenses incurred by such an attorney or accountant. . . ." 11 U.S.C. § 503(b)(4) (emphasis added). Here, although Richardson's actions may have been motivated, at least in part, by the prospect of helping other case participants, Richardson was not employed as an attorney for those participants and thus, could have been acting only in his personal capacity. Therefore, because Richardson, "as an attorney representing himself, does not seek reimbursement of professional fees that he incurred, but seeks compensation for his own time expended[,]" Richardson is ineligible to seek reimbursement of his fees under section 503(b)(4). Gimelson, 2004 WL 2713059, at *21. Richardson's request for reimbursement of $711,326.65 in fees under section 503(b)(4) is denied. C. Section 503(b)(3)(C) Richardson next argues that he is entitled to an administrative expense recovery of $1,830.59 under section 503(b)(3)(C)[10] for his expenses[11] incurred while assisting state and federal officials in developing and prosecuting bankruptcy and tax fraud claims against Gray. More specifically, Richardson asserts that he worked with the FBI and U.S. Attorneys prosecuting the MO Criminal Proceeding by answering questions, establishing the falsity of Gray's statements under oath at the MO Bankruptcy Proceeding's meeting of creditors, identifying supporting evidence, and providing "extensive background information . . . relating to the New York proceedings and the overall big picture." (Richardson Am.App. 27.) The Objecting Parties argue *59 that the MO Criminal Proceeding does not relate to the Debtor's case, business, or property but rather, stems from Gray's misappropriation of Homestar's insurance proceedings and false testimony in the MO Bankruptcy Proceeding's meeting of creditors. The Court cannot allow Richardson's request under section 503(b)(3)(C). Under 11 U.S.C. § 503(b)(3)(C), the Court may allow as administrative expenses, "the actual, necessary expenses, other than compensation and reimbursement specified under [section 503(b)(4)], incurred by . . . a creditor in connection with the prosecution of a criminal offense relating to the case or to the business or property of the debtor. . . ." Unlike sections 503(b)(1)(A) and 503(b)(3)(B) and (D), section 503(b)(3)(C) does not require that the expenses incurred by the creditor provide a benefit to the estate. However, the applicant bears the burden of satisfying a two-prong test. First, the applicant must show a direct relationship between the expenses sought and the prosecution of the criminal activity. See Lebron, 27 F.3d at 943 n. 1 (holding that section 503(b)(3)(C) was unavailable to an applicant because his efforts, although ultimately leading to a criminal prosecution of the debtor, were not incurred in the course of a criminal proceeding); In re Petit, 291 B.R. 582, 591 (Bankr. D.Me.2003) (refusing an award under section 503(b)(3)(C) because there was no showing that the applicant's expenses incurred in providing information to the court, which led to the investigation and prosecution of the debtor, were incurred in connection with a criminal investigation). Second, the applicant must prove that the prosecution of the criminal offense relates to a debtor's case, business, or property. See, e.g., In re Holder, 207 B.R. 574, 576 (Bankr.M.D.Tenn.1997) (prosecuting the debtor for the improper representations and omissions on his statements and schedules). In the instant case, Richardson fulfilled his burden under the first prong but did not do so under the second. The record establishes that Richardson's expenses were incurred in connection with the prosecution of the MO Criminal Proceeding. Richardson's activities assisted the FBI and U.S. Attorneys in formulating an indictment and provided evidence against Gray. See In re Fall, 93 B.R. 1003, 1012 (Bankr.D.Or.1988) ("The phrase `in connection' could encompass a wide variety of activities. Its use suggests a legislative intent that a creditor whose activities can be shown to have contributed in any direct way to the results which led to prosecution of a criminal offense. . . ."). However, the record is unclear how the MO Criminal Proceeding — or even how the MO Bankruptcy Proceeding or the MO Adversary Proceeding — relates to this Case, the Debtor's property or its business. There is no evidence that the Debtor had an interest in the insurance proceeds misappropriated by Gray or that it had any interest in the MO Bankruptcy Proceeding. Moreover, there is no evidence establishing how the Debtor's business related to the MO Criminal Proceeding or to Homestar. Richardson argues that the Homestar trustee may have asserted a claim to Jenkins but did not because of the successful outcome of the MO Adversary Proceeding. (Hr'g Tr. 30:15-25, Mar. 16, 2006.) This argument is unpersuasive in light of the lack of evidence supporting such a claim. Because Richardson has failed to meet his burden of proof, this Court must deny his request for an administrative expense under section 503(b)(3)(C). *60 D. Section 503(b)(3)(D) Turning next to Richardson's most lengthy argument, the Court must decide whether Richardson's request for an administrative expense recovery of $107,282.41 in expenses under section 503(b)(3)(D) is proper.[12] Richardson has set forth eighteen specific examples of how his efforts in thirteen different proceedings substantially contributed to this estate and its creditors. The Objecting Parties contend that an award under section 503(b)(3)(D) is inappropriate because: (1) Richardson's efforts provided no actual and direct benefit to the Case; (ii) if a contribution was made, it was the result of numerous retained professionals; (iii) Richardson's primary motivation in acting was to benefit himself or to fulfill the fiduciary duties owed to Committee members; and (iv) many of Richardson's efforts were duplicative of retained professionals in the Case. Below, the Court addresses separately Richardson's efforts in each one of the thirteen proceedings and determines that an allowed administrative expense totaling $2,533.65 is appropriate. 1. NY Shareholder Lawsuits According to Richardson, his participation in the N.Y. Shareholder Lawsuits, more specifically, his efforts regarding the Preliminary Injunction Proceeding and Contempt Proceeding, substantially contributed to the Debtor's estate and creditors by "establish[ing] the facts and theories of the Debtor's looting and fraudulent transfer claims" (Richardson Post-Hr'g Br. 8) asserted in the DE Adversary Proceeding and by ultimately causing Gray's incarceration, which led to the escrow of Jenkins and Rivco stock and prevented further actions adverse to the Debtor (Richardson Post — Hr'g Br. 8). Additionally, Richardson has argued that his efforts in the Preliminary Injunction Proceeding provided evidence for the DE Adversary Proceeding. More specifically, Richardson gathered evidence, recruited witnesses, drafted pleadings, and supervised attorneys. (Hr'g Tr. 23:4-7, Mar. 16, 2006.) With respect to the Contempt Proceeding, Richardson worked to unseal the record of the Contempt Proceeding, prevented its resealing, discovered and evaluated evidence, and worked with H. Adam Prussin ("Prussin"), the attorney for the N.Y. Shareholder Lawsuit plaintiffs and special counsel to the Committee. (Richardson Post — Hr'g Br. 8; Hr'g Tr. 24:4-22, Mar. 16, 2006.) In this Case, the Preliminary Injunction Proceeding and the Contempt Proceeding substantially contributed to the estate. Those proceedings established facts and theories asserted in the DE Adversary Proceeding, and thereby "lessened the burden on the Debtor['s] professionals[,]" reduced fees and expenses, and eased the professionals' preparation. Essential, 308 B.R. at 176. Moreover, the proceedings led to the escrow of Rivco and Jenkins stock, ensuring its preservation for the Debtor's estate and its creditors. However, the Court cannot conclude that it was Richardson's efforts which directly caused these benefits.[13] The benefits produced *61 from the Preliminary Injunction Proceeding and the Contempt Proceeding resulted from the participation of many, especially Prussin. (Richardson Am.App. 19 ("Richardson . . . worked with H. Adam Prussin to discredit Gray's arguments of not owning his affiliates and having purged his contempt.")); Hr'g Tr. 43:4-7, Mar. 16, 2006 ("[I]n connection with the contempt proceeding and even with respect to the adversary proceeding, it [Richardson's effort] was supportive of Mr. Prussin who was . . . the barrister in this case. . . ."). Richardson claims to have "supplied the evidence to show that . . . Gray had sufficient resources to purge the contempt" (Richardson Am.App. 19), "established the facts and theories of the Debtor's looting and fraudulent transfer claims against Gray" (Richardson Am.App. 5), and been "substantially responsible for [the] injunction" (Hr'g Tr. 23:7, Mar. 16, 2006). Without any additional evidence to support such assertions or the Court's first-hand observance of Richardson's role in the Contempt Proceeding and the Preliminary Injunction Proceeding, the Court cannot conclude that his efforts substantially contributed to the Case. See, e.g., In re 9085 E. Mineral Office Bldg., Ltd., 119 B.R. 246, 249-50 (Bankr.D.Colo.1990) ("Something more than mere conclusory self-serving statements regarding one's involvement in a case which allegedly resulted in a `substantial contribution' must be presented to the Court before compensation can be allowed. . . . `[A] court's own firsthand observance of the services provided may be a sufficient basis. . . .'") (quoting In re U.S. Lines, Inc., 103 B.R. 427, 430 (Bankr.S.D.N.Y.1989)). Moreover, the Court cannot agree that Richardson's efforts to unseal the Contempt Proceeding's record directly benefitted this estate and creditors. In 1999, Richardson's efforts permitted public access to the court file and the records. (See Richardson Post-Hr'g Br. Ex. A (J. Cozier Order dated Dee. 9, 1999).) However, this effort was duplicated by the Committee. The parties involved with the N.Y. Shareholder Lawsuits entered into a Stipulation and Protective Order, which forbade them from using the materials produced in connection with those proceedings in additional litigation. (Ex. 24 (Stipulation & Protective Order dated July 1, 1997).) In 2001, the Committee fought successfully to obtain and use the confidential materials in the DE Adversary Proceeding. (Ex. 516 (Hr'g Tr., Oct. 21, 2002).) Richardson has failed to produce any evidence except for conclusory statements to indicate that the record he worked to unseal included materials not already included in those obtained by the Committee. (See Richardson Post-Hr'g Br. 11). Moreover, even though the Contempt Proceedings' evidentiary record may have been unsealed, the Court is unclear whether the parties to the DE Adversary Proceeding could have used them without first seeking additional court approval. (See Ex. 24 ¶ 7 ("Any Confidential Material which is admitted into evidence shall not lose its protection under this Stipulation and Protective Order unless ordered by the Court.").) As such, the Court must conclude that it was the Committee's efforts, not Richardson's efforts, which directly benefitted the estate and its creditors. 2. MO Bankruptcy Proceeding, MO Adversary Proceeding, MO Criminal Proceeding (collectively, the "MO Proceedings") In the MO Bankruptcy Proceeding, Richardson exchanged information with the chapter 7 trustee, evaluated evidence, *62 and identified instances of Gray's false testimony at the meeting of creditors. These efforts, according to Richardson, led to the success of the MO Adversary Proceeding, which recovered $600,000 for the Homestar estate, and the MO Criminal Proceeding, which led to Gray's guilty plea of bankruptcy and tax fraud. (Richardson Am.App. 26-27.) According to Richardson, the success of the MO Adversary Proceeding stopped the chapter 7 trustee from asserting a claim to Jenkins. (Hr'g Tr. 30:15-20, Mar. 16, 2006.) Also, Richardson argues that Gray's guilty plea discredited Gray in the DE Adversary Proceeding. (Hr'g Tr. 30:24-25, Mar. 16, 2006.) The Court cannot conclude that Richardson's efforts in the MO Proceedings substantially contributed to the Debtor's estate and creditors. For the Court to find a substantial contribution, "the applicant must show a `causal connection' between the service and the contribution." Granite, 213 B.R. at 447 (citation omitted). Here, no such connection has been shown. First, as the Court previously indicated, it is unclear how the MO Proceedings provided a direct benefit to the estate and its creditors. See Discussion supra Part II.C. Second, even if the Court found a direct benefit, it is unclear how Richardson' efforts substantially contributed. There has been no evidence submitted to indicate that the chapter 7 trustee in the MO Bankruptcy Proceeding had a claim to Jenkins and deferred asserting that claim because of the MO Adversary Proceeding's success. Moreover, there is no evidence that the MO Proceedings increased the assets within Debtor's estate or prevented them from diminishing. Finally, although Gray may have been discredited by the MO Criminal Proceeding, the likelihood of the success of the DE Adversary Proceeding would have remained unchanged in its absence. The transactions underlying the DE Adversary Proceeding had already occurred and Gray was already imprisoned for violating the Preliminary Injunction. 3. TN Bankruptcy Proceeding Richardson's participation in the TN Bankruptcy Proceeding took many forms. First, he unsuccessfully attempted to transfer the case to Delaware and to oppose the sale of BF Rich. According to Richardson, these efforts served to educate the parties regarding Gray's prior history and ultimately stopped the sale of BF Rich. (Richardson Am.App. 24.) A party's efforts, while unsuccessful, may substantially contribute to an estate and its creditors. See, e.g., Hall Fin. Group, Inc. v. DP Partners, Ltd. (In re DP Partners, Ltd.), 106 F.3d 667, 670 (5th Cir. 1997) (explaining how creditor's unsuccessful proposed plan set off a bidding war, resulting in a final amended plan that provided $3 million more for the creditors); Granite, 213 B.R. at 449 (considering whether applicants' unsuccessful objections altered the character of the proposed disclosure statement to add value or facilitate a successful reorganization). However, in this case, Richardson merely argues that his unsuccessful efforts substantially contributed to the TN Bankruptcy Proceeding. He offers no suggestion or proof as to how they substantially contributed to the Debtor's estate or creditors. Second, Richardson opposed Gray's proposed plan of reorganization. According to Richardson, the proposed plan "would have deprived the Debtor of everything" because it subordinated the claims of ESP's stockholders to those of BF Rich, foreclosing the Debtor's chances of receiving a distribution. (Richardson Post — Hr'g Br. 9.) The Court cannot conclude that these efforts substantially contributed to the Debtor's estate and creditors. The Committee, in resolving the proof of claim dispute, relinquished the Debtor's claim *63 against ESP. As a result, ESP's plan of reorganization and its proposed distribution schedule bore no effect on the Debtor's estate and creditors. Third, Richardson submitted, defended, and pursued claims on behalf of the Debtor, which resulted "in the Debtor's [sic] obtaining the rights to [Rivco and Jenkins.]" (Richardson Post-Hr'g Br. 9.) More specifically, Richardson, while acting in his personal capacity, filed a separate claim in the TN Bankruptcy Proceeding and "prosecuted [both the Committee's claim and his claim] on behalf of the Committee. . . ." (Hr'g Tr. 33:22-23, Mar. 16, 2006.) According to Richardson, the settlement of the Debtor's claim resulted in the assignment of ESP's corporate opportunity claims against Gray to the Debtor — "the basis of the Debtor's legal claim to [Rivco and Jenkins]." (Richardson Am. App. 25.) Richardson's argument fails. With regard to Richardson's submission of his own proof of claim, it was duplicative of the Committee's effort and no evidence has been submitted to demonstrate a resulting benefit to the estate or creditors. See, e.g., Essential, 308 B.R. at 175 (denying reimbursement where applicant's services were duplicative of the Debtor's professionals); Buckhead, 161 B.R. at 17 (holding that, because the debtor was responsible for the sale of assets, any services provided by the committee in the asset sales "were duplicative rather than actual and necessary"). As to the settlement of the Debtor's proof of claim, it did not result in the Debtor's ownership of Rivco and Jenkins. As the Committee and Chapter 11 Trustee correctly emphasized, Judge Jordan's opinion in the DE Adversary Proceeding found that "the acquisition of Rivco and Jenkins were corporate opportunities that belonged to Summit" — not ESP. (Ex. 509 ¶ 94.) 4. TN Adversary Proceeding According to Richardson, his defense of the TN Adversary Proceeding successfully resisted an "attempt to enjoin the adversary proceeding against Gray in Delaware." (Richardson Am.App. 25.) At the outset, it is important to note that the outcome of the TN Adversary Proceeding benefitted the Debtor's estate and creditors only by allowing the DE Adversary Proceeding to continue. However, the Court cannot conclude that Richardson's efforts substantially contributed to that outcome. First, the success of the TN Adversary Proceeding was a result of numerous participants, including the Committee and its counsel. Second, because Richardson did not specify in detail his efforts taken in the TN Adversary Proceeding, it is impossible for this Court to determine whether Richardson's efforts were duplicative of those performed by the Committee. Third, and finally, like the Richardson Fiduciary Duty Proceeding, the Richardson Preference Proceeding, and the Richardson Racketeering Proceeding discussed below, the benefit conferred upon the estate as a result of Richardson's efforts was merely incidental. By his own testimony, Richardson admits that the actions he undertook in connection with the TN Adversary Proceeding were to prove he was not liable for any wrongdoing. (Hr'g Tr. 164:23-165:2, Apr. 4, 2006.) In fact, a portion of the expenses for which he is seeking reimbursement constitute the fees of his own counsel, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. The Court cannot allow reimbursement of Richardson for expenses incurred as a result of services rendered for his own benefit, rather than for the estate and its creditors. See, e.g., Lister, 846 F.2d at 57 (opining, as support for the Court's denial of a section 503(b)(3)(D) claim, that the applicant's pre-petition efforts were undertaken solely for the purpose of collecting a *64 judgment); Phila. Mortgage, 117 B.R. at 831 ("The only activities which took place post-petition were Sarp's efforts to defend himself. . . . The expenditures appear to have been clearly made for Sarp's own benefit, and any benefit to the Debtor's estate appears to have been, at best, incidental."). 5. NH Proceeding Richardson next argues that the NH Proceeding, filed and pursued solely by Richardson and his local counsel, substantially contributed to the Debtor's estate and creditors by preventing the expiration of the New Hampshire fraudulent transfer statute of limitations, "plac[ing] a cloud on Gray's title and prevent[ing] any attempts by Gray to sell Rivco out from under Summit." (Richardson Am.App. 26-27.) The Court cannot agree. First, like the MO Proceedings, the Court does not believe the NH Proceeding conferred any benefit to the Debtor's estate or creditors. The NH Proceeding was stayed with the commencement of this Case and no judgment was ever entered on behalf of the Debtor. Although Richardson stated that the proceeding prevented looting (Richardson Am.App. 26), there is no evidence that Gray was attempting to sell Rivco and that the NH Proceeding prevented such a sale. Second, Richardson's own testimony indicates that the NH Proceeding was duplicative of the Committee's efforts in Delaware, and therefore, noncompensable. (See Hr'g Tr. 167:6-9, Apr. 4, 2006 ("Q: The New Hampshire claims were duplicative of the claims that were pending in Tennessee and Delaware, right? [Richardson's] A: Well, they were duplicative of the claims that were pending in Delaware."); see also Ex. 35 (July 28, 2003 facsimile from Richardson to Cameron Schilling, Esq. stating that, "The Delaware action . . . covers the same issues as the NH action. . . . ").) 6. Richardson Fiduciary Duty Proceeding Although Richardson's primary argument for the reimbursement of expenses he incurred while defending the Richardson Fiduciary Duty Proceeding falls under section 503(b)(1)(A), Richardson also argues that this proceeding led to discovery that established the corporate opportunity claims alleged in the DE Adversary Proceeding. (Hr'g Tr. 131:19-22, Apr. 4, 2006.) Richardson's argument is flawed in two respects. First, Richardson admitted that the evidence establishing the corporate opportunity claims originated from the discovery performed in the Richardson Preference Proceeding and not the Richardson Fiduciary Duty Proceeding. (Hr'g Tr. 132:10-14, Apr. 4, 2006.) Second, Richardson's primary purpose in acquiring this information was to further his own defense. Because any benefit to the estate and creditors was merely incidental, Richardson cannot receive reimbursement for these expenses. 7. Richardson Preference Proceeding Richardson argues that the discovery he obtained while defending the Richardson Preference Proceeding substantially contributed to the Debtor's estate and creditors by establishing the corporate opportunity claims alleged in the DE Adversary Proceeding, Again, Richardson primary purpose in acquiring this information was to further his own defense. (Hr'g Tr. 144:16-22, Apr. 4, 2006 ("Q: And the actions that you undertook in the suit were taken with the intent of proving that you wern't liable? [Richardson's] A: Yes. Q: In connection with those actions, you sought documents . . . to prove that Summit was solvent . . .? [Richardson's] A: That's correct."); accord Hr'g Tr. 16:10-17:11, *65 Mar. 16, 2006.) Therefore, any benefit to the estate and creditors was merely incidental. 8. Richardson Racketeering Proceeding Richardson seeks reimbursement of his expenses incurred in defending the Richardson Racketeering Proceeding, commenced on August 3, 1999 and voluntarily dismissed ten days later. However, Richardson admits that his defense of the proceeding provided no substantial benefit to the Debtor's estate or creditors. (Hr'g Tr. 151:6-9, Apr. 4, 2006 (testifying that there was no "substantial benefit aspect" to the expenses, but rather, that the expenses were incurred in defending an action brought by the Debtor).) Additionally, like the Richardson Fiduciary Duty Proceeding, the Richardson Preference Proceeding, and the TN Adversary Proceeding, any benefit conferred as a result of Richardson's defensive efforts, however unlikely, was merely an incidental result in light of Richardson's strong personal motive to prove the allegations against him false. Therefore, Richardson's request for reimbursement is denied. 9. DE Adversary Proceeding With regards to the DE Adversary Proceeding, Richardson asserts that he provided the facts and theories for the Complaint, assisted in the Complaint drafting, and succeeded in getting the case moved to Judge Jordan after more than two years of inactivity. Additionally, Richardson claims that he provided the evidence for a majority of the findings and the theories and precedents for the legal conclusions in Judge Jordan's opinion issued in the DE Adversary Proceeding. According to Richardson, his participation in the DE Adversary Proceeding substantially contributed to the Case because it resulted in the recovery of Rivco and Jenkins. (Richardson Am.App. 22-23.) Certainly, the DE Adversary Proceeding provided substantial benefits to the estate and its creditors, including a $40 million judgment against Gray and over $18 million from the stock of Rivco and Jenkins. However, the participation of many led to these results. First, the record is clear that it was Prussin who drafted the Complaint. Richardson reviewed the Complaint and provided comments, but these efforts are not extraordinary. (See, e.g., Supplement Invoice 1/1/99-12/31/00 46, 56 (time records indicating Richardson's review of Prussin's drafts of the Complaint); Hr'g Tr. 200:2-8, Apr. 4, 2006 (Prussin's testimony that he was the "principal draftsman" of the Complaint).) Second, the Complaint's facts and theories originated from multiple sources and did not stem solely from Richardson. Out of the eight causes of action, the first six originated from the N.Y. Shareholder Lawsuits and from the Preliminary Injunction Proceeding. (See, e.g., Hr'g Tr. 125:11-18, Apr. 4, 2006 (Richardson's testimony as to the genesis of the DE Adversary Proceeding's causes of action); Hr'g Tr. 194-208, Apr. 4, 2006 (Prussin's testimony regarding the same). See generally Ex. 22 (Judge Jordan's Post-Trial Findings of Fact & Conclusions of Law detailing the claims asserted in the N.Y. Shareholder Lawsuits and the Preliminary Injunction Proceeding); Ex. 24 (Opinions issued in the Contempt Proceeding and Preliminary Injunction Proceeding).) There has been no evidence presented that it was Richardson who developed the facts and the theories in those proceedings. As to the seventh cause of action — the corporate opportunity claim — the record is unclear who developed it. Although Richardson asserts that he developed the claim, he offers no evidence in support of this. Therefore, he has failed *66 to meet his burden of proof. Finally, although Richardson presented no corroborating evidence to support his claim with regard to the first through seventh causes of action, Prussin testified that the eighth cause of action originated solely from Richardson. (Hr'g Tr. 208:18, Apr. 4, 2006.) Because Judge Jordan found in favor of the Debtor on this cause of action, Richardson's efforts in developing this claim increased the money judgment against Gray. As such, any expenses incurred by Richardson in developing this cause of action may be reimbursed. However, the Court has been unable to identify in the record any expenses attributable to these particular efforts and is therefore unable to make any award in connection therewith. Third, there is no support for Richardson's conclusory statements that he unilaterally provided the evidence upon which the District Court relied. Rather, like so many of the proceedings relevant to this Case, many contributed to the evidence supply. The Committee subpoenaed all the documents produced in connection with the N.Y. Shareholder Lawsuits and fought for their use in the DE Adversary Proceeding. Additionally, they performed their own discovery regarding the allegations in the Complaint. (Exs. 517-22 (requests for the production of documents and subpoenas duces tecum issued by the Committee).) Although Richardson may have obtained important evidence supporting the corporate opportunity claims from the Richardson Preference Proceeding, the benefit to the estate was merely incidental as Richardson's purpose in acquiring the documents was personal. Additionally, a majority of the supporting testimony came from Kelly, without whom, Richardson testified, "it would have been impossible to go to trial. . . ." (Hr'g Tr. 252:11-12, Apr. 4, 2006.) Finally, like many of Richardson's assertions, he has failed to provide any supporting evidence that his complaint to the Court of Appeals for the Third Circuit regarding the stagnant DE Adversary Proceeding caused the case to be re-assigned to Judge Jordan. Moreover, even if evidence existed, the transfer did not result in the successful outcome of the DE Adversary Proceeding. Rather, the success stemmed from the evidence and presentation of the parties. 10. This Case Finally, Richardson asserts that his efforts in this Case entitle him to the reimbursement of expenses because he: (i) was instrumental in forming the Committee, in hiring Prussin as counsel, and in obtaining the authority for the Committee to prosecute claims against Gray; (ii) helped prevent this Case from staying the Contempt Proceeding; (iii) objected first to the conversion of the Case to chapter 7; (iv) helped educate the Court as to the background of the relevant proceedings and the basis for claims against Gray; and (v) objected first to the fee requests of Debtor's counsel, thereby preventing a drain on the assets of the estate. (Richardson Am.App. 20-21.) The Court concludes that Richardson's expenses incurred while performing the above-referenced activities cannot be reimbursed under section 503(b)(3)(D). First, Richardson argues that he formed the Committee but, as the Objecting Parties correctly argue, the power to form a committee lies with the United States Trustee. Richardson failed to present any evidence to suggest that the United States Trustee failed to do her duty or to explain the nature of Richardson's contributions to the Committee's formation. Moreover, Richardson's expenses incurred while obtaining Committee authority to pursue claims *67 against Gray and while pursuing additional committee counsel are equally non-reimbursable as these efforts are routine duties and powers delineated in section 1103(a) and (c). See Worldwide Direct, 334 B.R. at 124 (denying reimbursement to a committee member under section 503(b)(3)(D) for "fulfilling its fiduciary duties as a Committee member and performing the routine Committee tasks delineated in section 1103(c)"). Additionally, there is no evidence that Richardson acted beyond what is expected from a committee member during these pursuits. (See Ex. 9 (Letter from Richardson to Paul Brenman, Esq. noting that he only had "three minor comments on the draft" Committee motion to prosecute the Gray claims).) However, while these efforts are not reimbursable under section 503(b)(3)(D), the Court concludes Richardson may receive reimbursement for these expenses pursuant to section 503(b)(3)(F). Second, to further support his claim, Richardson relies on his opposition to the Debtor's attempt to stay the Contempt Proceedings. However, again, there is no evidence as to how his particular objection effected the outcome of the Debtor's attempt. Additionally, Richardson's effort was duplicative of that of the Committee, which also opposed the Debtor. Third, Richardson has argued that his expenses incurred while opposing the Debtor's motion to convert should be reimbursed because the Committee "missed the motion" and failed to respond. (Hr'g Tr. 25:22, Mar. 16, 2006.) This argument fails because the record indicates that the Committee subsequently filed their response on January 9, 2001. (Ex. 504 (Docket Item No. 251).) Thus, because Richardson's efforts were duplicative of those efforts performed by the Committee, his expenses cannot be reimbursed. Richardson continues his argument by noting how his numerous pleadings "served to educate the Court about the facts and circumstances of the case." (Richardson Am.App. 21.) Although Richardson's pleadings may have served to educate the Court more quickly as to the relevant proceedings and Gray's background, the Court cannot conclude that his actions were extraordinary. See Psychiatric Hosps. of Hernando County, Inc., 228 B.R. 764, 767 (Bankr.M.D.Fla.1998) ("Administrative expense compensation based on a substantial benefit to a bankruptcy estate must be strictly limited to extraordinary creditor actions that led directly to tangible benefits to the creditors, the debtor, or the estate."). Finally, according to Richardson's speculation, his objection to the final fee application of Debtor's counsel, Klehr Harrison Harvey Branzburg & Ellers LLP ("Klehr Harrison"), stopped the flow of funds to them and caused Debtor's counsel to get "kind of discouraged about [not acting in the best interest of the estate]." (Hr'g Tr. 26:2-4, Mar, 16, 2006; see also Hr'g Tr. 52:15-17, Apr. 4, 2006 (Q: "How did [the objection] benefit the estate? [Richardson's] A: Well, I think it did stop the — you know, the payment of fees to Klehr Harrison which were then deferred.").) While it is true that Klehr Harrison subsequently reduced its final fee allowance by $100,000, the Court cannot conclude that Richardson's objection was the cause. The Trustee also filed an objection seeking a reduction in Klehr Harrison's fee allowance. (Docket Item No. 420 (Objection of the Chapter 11 Trustee of Summit Metals, Inc. to the Tenth and Final Application of Klehr Harrison Harvey Branzburg & Ellers LLP for Compensation and Reimbursement of Expenses as Counsel to the Debtor Pursuant to 11 U.S.C. § 330); Docket Item No. 441 (Revised Objection of the Chapter 11 Trustee).) On August 2, *68 2005, the Trustee and Klehr Harrison entered into a stipulation reducing Klehr Harrison's fees and resolving the Trustee's objection. (See Docket Item No. 510 (Certification of Counsel Regarding the Order Approving the Final Application of Klehr Harrison Harvey `Branzburg & Ellers LLP for Allowance of Compensation and for Reimbursement of Expenses).) Richardson was not a party to this stipulation and the record fails to indicate how his objection contributed to the resolution. E. Section 503(b)(3)(F) Despite the Court's denial of Richardson's request for administrative expense claims under sections 503(b)(1)(A), 503(b )(3)(C) and (D), and 503(b)(4), the Court will award Richardson reimbursement for his expenses "incurred in the performance of' Committee duties. 11 U.S.C. § 503(b)(3)(F). Expenses that qualify for reimbursement under this section include travel, lodging, and meal expenses incurred while attending committee meetings or court hearings. See In re Worldwide Direct, Inc., 259 B.R. 56, 63 (Bankr.D.Del.2001) ("Travel expenses for committee members to attend committee meetings or court hearings are necessary for the functioning of the committee and are normally reimbursable."). Therefore, the Court will allow an administrative expense claim totaling $2,533.65. Details of the allowed expenses, derived from the Supplement, are set forth on Exhibit A attached hereto. III. Conclusion For the reasons set forth above, Jepsco's request for the allowance of its fees and expenses as administrative expenses pursuant to section 503(b)(3)(D) is denied. Richardson's request for the allowance of his fees as an administrative expense is also denied. However, the Court will allow an administrative expense claim totaling $2,533.65 for Richardson's incurred expenses. Appropriate Orders follow. IV. Epilogue The function of the Court as gatekeeper of the expenditure of estate resources is among the most important responsibilities conferred upon it. The purpose behind establishing the demanding threshold to recovery under § 503 is obvious. But despite the applicants' inability to meet the rigorous standard set by the Bankruptcy Code, no one should infer that the efforts of Messrs. Richardson and Kelly are unappreciated by the Court or the parties. There was here no challenge to their skill, diligence or dedication in connection with their respective roles, official or otherwise, in this Case. Their participation was certainly helpful and should not be viewed as lacking what was, at least in part, their effort "to do the right thing" in connection with this Case. EXHIBIT A ----------------------------------------------------------------------------------------- LOCATION IN DATE DESCRIPTION SUPPLEMENT ----------------------------------------------------------------------------------------- COST 1/11/99 Train and taxis to creditors meeting Invoice 1/1/99-12/31/00 p. 94 $ 97.00 3/25/99 Metroliner to Wilmington 95 75.00 3/25/99 Train to Wilmington 95 152.00 5/27/99 Metroliner to Wilmington 95 150.00 6/25/99 Tvl to Wilmington 96 126.00 8/10/99 Train to Wilmington 96 152.00 8/27/99 Tvl to Wilmington 97 152.00 *69 2/22/00 Train to Wilmington 98 4/27/00 Metroliner to Wilmington 99 1/11/01 Metroliner and reserved train to and from Wilmington Invoice 1/1/01-8/31/04 p. 66 136.00 5/31/01 Amtrak to Wilmington on 5/1/01 67 138.00 6/26/01 Train to Wilmington 67 138.00 2/13/04 Amtrak to Wilmington on 2/10/04 68 60.00 2/13/04 Hotel in Wilmington 1/10-1/14 68 867.65 ----------------------------------------------------------------------------------------- TOTAL AMOUNT ALLOWED $2,533.65 ----------------------------------------------------------------------------------------- ORDER AND NOW, this day of December, 2007, upon consideration of Amended Application of JEPSCO Ltd. for Compensation and Reimbursement for Administrative Expenses (Docket No. 451)("Jepsco Application"), objections thereto, after evidentiary hearing thereon and consistent with the foregoing Opinion, it is hereby ORDERED and DECREED that the Jepsco Application is DENIED. ORDER AND NOW, this day of December, 2007, upon consideration of Amended Application of Ambrose M. Richardson, Esq. for Compensation as Post-Petition Creditor and as Creditor Providing Substantial Benefit to the Estate Pursuant to §§ 503(b)(1)(A)(i), 503(b)(3)(B),(C),(D) and (F) and 503(b)(4)(Docket No. 587) ("Richardson Application"), objections thereto, after evidentiary hearing thereon and consistent with the foregoing Opinion, it is hereby ORDERED and DECREED that the Richardson Application is GRANTED, in part and DENIED, in part. Richardson is awarded an allowed administrative expense in the amount of $2,533.65. NOTES [1] This Opinion constitutes the findings of fact and conclusions of law required by FED R. BANKR.P. 7052. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 157(a). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(1) and. (b)(2)(13). [2] These background facts have been derived substantially from then District Judge Jordan's Post-Trial Findings of Fact and Conclusions of Law resolving Summit Metals, Inc. v. Gray (In re Summit Metals, Inc.), No. 00-387, 2004 WL 1812700 (D.Del. Aug. 6, 2004), submitted as Exhibit 22. Judge Jordan has since been elevated to the Court of Appeals for the Third Circuit. [3] In his Amended Application, Richardson cites section 503(b)(1)(A)(i). Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPPA"), section 503(b)(1)(A) was renumbered section 503(b)(1)(A)(i). Section 507(a)(1) has also been renumbered as Section 507(a)(2). Because this Case was filed before the effective date of BAPCPA, the Court will refer to the pertinent sections as they were designated at the time the Case was filed. [4] It is unclear whether Richardson removed section 503(b)(3)(F) as well. According to Richardson's testimony on April 4, 2006, he no longer wished to rely upon section 503(b)(3)(F). (Hr'g Tr. 122:13-123:13, Apr, 4, 2006) Moreover, the Supplement lumps his time spent on Committee matters into his section 503(b)(1)(A) claim. (Supplement 5.) However, Richardson's Post-Trial Brief proffers a section 503(b)(3)(F) argument. (Richardson Post-Hr'g Br. 16-18.) Because of this ambiguity and because the Objecting Parties have addressed section 503(b)(3)(F) in their papers, the Court will examine whether the reimbursement of Richardson's expenses under section 503(b)(3)(F) is appropriate. [5] The Court will use "Kelly" and "Jepsco" interchangeably herein. [6] In support of Jepsco's request, Richardson testified that there would not have been a DE Adversary Proceeding without the participation of Kelly. (Hr'g Tr. 252:11-12, Apr, 4, 2006.) As courts have held, "Corroborating testimony by a disinterested [emphasis added] party attesting to a claimant's instrumental acts has proven to be a decisive factor in awarding compensation to activities which otherwise might not constitute a `substantial contribution.'" In re U.S. Lines, Inc., 103 B.R. 427, 430 (Bankr.S.D.N.Y.1989). The Court may also use its "own first-hand observance of the services provided" in addition to any corroborating testimony to find a substantial contribution. Id. [7] Of the $618,995.87 requested under section 503(b)(1)(A), $561,380.81 is also sought under sections 503(b)(3)(D) and 503(b)(4). [8] Richardson also relies upon In re Women First Healthcare, Inc., 332 B.R. 115 (Bankr. D.Del.2005), and Reading Co. v. Brown, 391 U.S. 471, 88 S.Ct. 1759, 20 L.Ed.2d 751 (1968), to argue that he may recover his indemnification claim under section 503(b)(1)(A) without a showing of substantial contribution because his claim was incurred while defending an action brought by the Debtor, as successor in interest to Chariot. (Richardson Post-Hr'g Br. 5-6.) Those cases stand for the proposition that a tort committed by a debtor can give rise to an administrative claim. In the instant case, Richardson's reliance on Women First and Reading is misplaced as he has not accused the Debtor of committing a tort. [9] Richardson requests reimbursement of his fees under sections 503(b)(1)(A), 503(b)(3)(C), (D), and (F), and 503(b)(4). However, reimbursement of fees can be awarded only under sections 503(b)(1)(A) and 503(b)(4). See 11 U.S.C. § 503(b)(3) ("[T]here shall be allowed as administrative expenses . . . the actual and necessary expenses, other than compensation and reimbursement. . . ."). As explained in Discussion supra Part II.A., Richardson's, request for fees under section 503(b)(1)(A) is denied. The remainder of his requested fees will be analyzed under section 503(b)(4). [10] Of the $1,830.59 requested under section 503(b)(3)(C), $1,827.59 is also sought under section 503(b)(3)(D). [11] The Court will not address Richardson's fee request under this section for the reasons stated above. See Discussion supra Part II.B. [12] Of the $107,282.41 requested under section 503(b)(3)(D), $81,816.65 is also sought under section 503(b)(1)(A) and $1,827.59 under section 503(b)(3)(C), but these expenses are disallowed for the reasons discussed previously. The Court will not address Richardson's fee request under § 503(b)(3)(D) for the reasons stated above. See Discussion supra Part II.B. [13] Some of Richardson's efforts occurred prepetition. Pre-petition expenses are recoverable under section 503(b)(3)(D) only if the applicant can "establish that the pre-petition efforts resulted in a substantial contribution to the estate post-petition." Essential, 308 B.R. at 175 (emphasis added).

562 F.Supp.2d 511 (2008) CSX CORPORATION, Plaintiff, v. THE CHILDREN'S INVESTMENT FUND MANAGEMENT (UK) LLP, et al., Defendants, v. Michael J. Ward, Additional Counterclaim Defendant. No. 08 Civ. 2764(LAK). United States District Court, S.D. New York. June 11, 2008. *514 Rory O. Millson, Francis P. Barron, David R. Marriott, Cravath, Swaine & Moore LLP, for Plaintiff and Additional Counterclaim Defendant. Howard O. Godnick, Michael E. Swartz, Yocheved Cohen, Schulte Roth & Zabel LLP, for Defendants The Children's Investment Fund Management (UK) LLP, The Children's Investment Fund Management (Cayman) LTD, The Children's Investment Manager Fund, Christopher Hohn, and Snehal Amin. Peter Duffy Doyle, Andrew M. Genser, Kirkland & Ellis LLP, for Defendants 3G Capital Partners Ltd., 3G Capital Partners, L.P., 3G Fund, LP and Alexandre Behring (a/k/a Alexandre Behring Costa). David M. Becker, Edward J. Rosen, Michael D. Dayan, Cleary Gottlieb Steen & Hamilton LLP, for Amici Curiae International Swaps and Derivatives Associations, Inc. and Securities Industry and Financial Markets Association. Adam H. Offenhartz, Aric H. Wu, J. Ross Wallin, LaShann M. DeArcey, Gibson Dunn & Crutcher LLP, for Amicus Curiae Coalition of Private Investment Companies. Brian Breheny, Division of Corporation Finance, for Amicus Curiae Division of Corporation Finance, Securities and Exchange Commission. OPINION LEWIS A. KAPLAN, District Judge. Table of Contents Background...................................................................... 518 I. Parties ............................................................... 518 *515 II. Proceedings ........................................................... 518 III. Total Return Swaps .................................................... 519 A. The Basics ........................................................ 519 B. The Purposes of TRSs............................................... 521 1. Short Parties .................................................. 521 2. Long Parties ................................................... 522 IV. The Events of Mid-2006 Until Late 2007 ................................ 523 A. TCI................................................................ 523 1. TCI Develops a Position in CSX ................................. 523 2. TCI's Leveraged Buyout Proposal................................. 524 3. January through March 2007 ..................................... 525 4. TCI Begins Preparing for a Proxy Fight ......................... 526 5. CSX Files Its 10-Q and Discloses that TCI Has an Economic Position...................................................... 527 6. Proxy Fight Preparations continue .............................. 528 7. TCI Concentrates its Swaps in Deutsche Bank and Citigroup ...... 529 8. TCI Enters into Agreements with Two Director-Nominees........... 530 B. 3G ................................................................ 530 1. 3G Develops a Position in CSX .................................. 530 2. 3G Resumes Buying CSX Shares.................................... 531 3. 3G's Hart-Scott-Rodino Filing .................................. 531 4. 3G Sells Some Shares ........................................... 532 5. 3G Rebuilds its Investment in CSX .............................. 532 6. 3G Prepares for a Proxy Fight .................................. 532 C. The Relationship Between TCI and 3G................................ 532 1. 3G Learns of TCI's Interest in CSX ............................. 533 2. 3G and TCI Discuss Activity in CSX ............................. 533 3. 3G and TCI Meet on March 29..................................... 534 4. TCI and 3G Inquire of CSX Regarding a Shareholder Vote.......... 534 5. The August-September Pause ..................................... 534 6. TCI and 3G Ramp Up Again ....................................... 535 7. TCI and 3G Search for Director Nominees ........................ 535 V. The Proxy Contest ..................................................... 535 A. TCI and 3G Disclose the Formation of a Formal Group................ 535 B. The Group Files Its Notice of Intent to Nominate Directors ........ 536 C. CSX and TCI Attempt to Negotiate a Resolution...................... 536 D. CSX and The Group File Proxy Materials ............................ 537 1. CSX ............................................................ 537 2. The Group's Proxy Statement .................................... 537 VI. The Positions of the Parties .......................................... 538 Discussion ..................................................................... 538 I. Section 13(d) ......................................................... 538 A. Beneficial Ownership .............................................. 539 1. Rule 13d-3(a) .................................................. 541 a. Investment Power ............................................ 541 b. Voting Power ................................................ 543 c. Synthesis ................................................... 545 2. Rule 13d-3(b) .................................................. 548 B. Group Formation ................................................... 552 C. Alleged Schedule 13D Deficiencies ................................. 555 1. Legal Standard ................................................. 555 2. Beneficial Ownership ........................................... 555 3. Group Formation ................................................ 555 *516 4. Contracts, Arrangements, Understandings, or Relationships....... 556 5. Plans or Proposals.............................................. 556 II. Section 14(a).......................................................... 556 III. Section 20(a).......................................................... 558 IV. Notice of Proposed Director Nominee and Bylaw Amendment................ 559 V. Counterclaims.................................. ...................... 561 A. Section 14(a) Claim................................................ 561 1. Target Awards Under the Long Term Incentive Plan................ 561 2. The CSX Board's Compliance With CSX Insider Trading Policy ..... 562 3. CSX's Belief that TCI Seeks Effective Control................... 564 4. TCI's Proposal Regarding Capital Expenditures................... 564 5. The CSX-TCI Negotiations........................................ 565 6. CSX's Purposes in Bringing this Lawsuit......................... 566 B. Declaratory Relief Regarding By-Laws Amendment..................... 566 VI. Relief................................................................. 567 A. Success on the Merits.............................................. 568 B. Share Sterilization................................................ 568 1. Irreparable Harm................................................ 568 2. Deterrence...................................................... 571 C. Enjoining Further Disclosure Violations............................ 572 1. Probability of Future Violations................................ 572 2. Irreparable Injury.............................................. 573 Conclusion ..................................................................... 573 Appendix 1 ..................................................................... 574 Appendix 2 ..................................................................... 583 Some people deliberately go close to the line dividing legal from illegal if they see a sufficient opportunity for profit in doing so. A few cross that line and, if caught, seek to justify their actions on the basis of formalistic arguments even when it is apparent that they have defeated the purpose of the law. This is such a case. The defendants— two hedge funds that seek extraordinary gain, sometimes through "shareholder activism"—amassed a large economic position in CSX Corporation ("CSX"), one of the nation's largest railroads. They did so for the purpose of causing CSX to behave in a manner that they hoped would lead to a rise in the value of their holdings. And there is nothing wrong with that. But they did so in close coordination with each other and without making the public disclosure required of 5 percent shareholders and groups by the Williams Act, a statute that was enacted to ensure that other shareholders are informed of such accumulations and arrangements. They now have launched a proxy fight that, if successful, would result in their having substantial influence and perhaps practical working control of CSX. Defendants seek to defend their secret accumulation of interests in CSX by invoking what they assert is the letter of the law. Much of their position in CSX was in the form of total return equity swaps' ("TRSs"), a type of derivative that gave defendants substantially all of the indicia of stock ownership save the formal legal right to vote the shares. In consequence, *517 they argue, they did not beneficially own the shares referenced by the swaps and thus were not obliged to disclose sooner or more fully than they did. In a like vein, they contend that they did not reach a formal agreement to act together, and therefore did not become a "group" required to disclose its collaborative activities, until December 2007 despite the fact that they began acting in concert with respect to CSX far earlier. But these contentions are not sufficient to justify defendants' actions. The question whether the holder of a cash-settled equity TRS beneficially owns the referenced stock held by the short counterparty appears to be one of first impression. There are persuasive arguments for concluding, on the facts of this case, that the answer is "yes"—that defendants beneficially owned at least some and quite possibly all of the referenced CSX shares held by their counterparties. But it ultimately is unnecessary to reach such a conclusion to decide this case. Rule 13d-3(b) under the Exchange Act[1] provides in substance that one who creates an arrangement that prevents the vesting of beneficial ownership as part of a plan or scheme to avoid the disclosure that would have been required if the actor bought the stock outright is deemed to be a beneficial owner of those shares. That is exactly what the defendants did here in amassing their swap positions. In consequence, defendants are deemed to be the beneficial owners of the referenced shares. As for the question whether defendants made prompt disclosure after they formed a "group" within the meaning of Section 13(d) of the Exchange Act, the evidence, as in virtually all such cases, is circumstantial. But it quite persuasively demonstrates that they formed a group many months before they filed the necessary disclosure statement. Their protestations to the contrary rest in no small measure on the premise that they avoided forming a group by starting conversations by stating that they were not forming a group and by avoiding entry into a written agreement. But the Exchange Act is concerned with substance, not incantations and formalities. This is not to say that CSX is entitled to all of the relief that it seeks. The Williams Act was intended "not only to prevent secret accumulation and undisclosed group activities with respect to the stock of public companies, but to do so without "tipping the balance of regulation either in favor of management or in favor of the person making the takeover bid."[2] It must be applied, especially in private litigation, with due regard for the principle that the purpose of private equitable relief is "to deter, not to punish."[3] Moreover, the Court's ability to formulate a remedy is sharply constrained by precedent. Accordingly, while the Court will enjoin defendants from further Section 13(d) violations, it may not preclude defendants from voting their CSX shares and declines to grant any of the other drastic relief that CSX seeks. Any penalties for defendants' violations must come by way of appropriate action by the Securities and Exchange Commission ("SEC") or the Department of Justice. *518 Background I. Parties Plaintiff CSX Corporation ("CSX") is incorporated in Virginia and headquartered in Jacksonville, Florida. Its shares are traded on the New York Stock Exchange, and it operates one of the nation's largest rail systems through its wholly owned subsidiary, CSX Transportation, Inc. Its chairman, president, and chief executive officer is Michael J. Ward, who is named here as an additional defendant on the counterclaims. Defendants The Children's Investment Fund Management (UK) LLP ("TCIF UK") and The Children's Investment Fund Management (Cayman) LTD. ("TCIF Cayman") are, respectively, an English limited liability partnership and a Cayman Islands company. Defendant The Children's Investment Master Fund ("TCI Fund") also is a company organized under the laws of the Cayman Islands and is managed by both TCIF UK and TCIF Cayman. These entities are run by defendant Christopher Hohn, who is managing partner and a controlling person of TCIF UK and the sole owner and a controlling person of TCIF Cayman. Defendant Snehal Amin is a partner of TCIF UK. These five defendants are referred to collectively as TCI. Defendants 3G Fund L.P. ("3G Fund") and 3G Capital Partners L.P. ("3G LP") are Cayman Islands limited partnerships. Defendant 3G Capital Partners Ltd. ("3G Ltd.") is a Cayman Islands company and the general partner of 3G LP, which in turn is the general partner of 3G Fund. They are run by defendant Alexandre Behring, also known as Alexandre Behring Costa, who is the managing partner of 3G Ltd. These four defendants are referred to collectively as 3G. II. Proceedings TCI and 3G currently are engaged in a proxy fight in which they seek, inter alia, to elect their nominees to five of the twelve seats on the CSX board of directors and to amend its by-laws to permit holders of 15 percent of CSX shares to call a special meeting of shareholders at any time for any purpose permissible under Virginia law. The CSX annual meeting of shareholders, which is the object of the proxy fight, is scheduled to take place on June 25, 2008. CSX brought this action against TCI and 3G on March 17, 2008. The complaint alleges, among other things, that defendants failed timely to file a Schedule 13D after forming a group to act with reference to the shares of CSX and that both the Schedule 13D and the proxy statement they eventually filed were false and misleading.[4] It seeks, among other things, an order requiring corrective disclosure, voiding proxies defendants have obtained, and precluding defendants from voting their CSX shares. TCI Master Fund, 3G Fund, 3G LP, and 3G Ltd. filed counterclaims against CSX and Ward asserting various claims under the federal securities laws.[5] With the consent of the parties, the Court consolidated the preliminary injunction hearing with the trial on the merits.[6] Following the conduct of a great deal of expedited discovery, the case was tried on May 21 to 22, 2008. The Court subsequently has had the benefit of more than 500 pages of post-trial submissions by the parties, two amicus briefs, an amicus letter on behalf of the Division of Corporation Finance of the SEC, and two lengthy *519 letters by professors, one of whom is a former commissioner of the SEC. The parties have urged the Court to render a decision by this week in order to permit an expedited appeal prior to the meeting. This opinion contains the Court's findings of fact and conclusions of law.[7] Total Return Swaps A. The Basics The term "derivative," as the term is used in today's financial world, refers to a financial instrument that derives its value from the price of an underlying instrument or index. Among the different types of derivatives are swaps, instruments whereby two counterparties agree to "exchange cash flows on two financial instruments over a specific period of time."[8] These are (1) a "reference obligation" or "underlying asset" such as a security, a bank loan, or an index, and (2) a benchmark loan, generally with an interest rate set relative to a commonly used reference rate (the "reference rate") such as the London Inter-Bank Offered Rate ("LIBOR").[9] A TRS is a particular form of swap.[10] The typical—or "plain vanilla"—TRS[11] is represented by Figure 1.[12] *520 Counterparty A—the "short" party— agrees to pay Counterparty B—the "long" party—cash flows based on the performance of a defined underlying asset in exchange for payments by the long party based on the interest that accrues at a negotiated rate on an agreed principal amount (the "notional amount"). More specifically, Counterparty B, which may be referred to as the "total return receiver" or "guarantor," is entitled to receive from Counterparty A the sum of (1) any cash distributions, such as interest or dividends, that it would have received had it held the referenced asset, and (2) either (i) an amount equal to the market appreciation in the value of the referenced asset over the term of the swap (if the TRS is cash-settled) or, what is economically the same thing, (ii) the referenced asset in exchange for its value on the last refixing date prior to the winding up of the transaction (if the TRS is settled in kind). Counterparty A, referred to as the "total return payer" or "beneficiary," is entitled to receive from Counterparty B(1) an amount equal to the interest at the negotiated rate that would have been payable had it actually loaned Counterparty A the notional amount,[13] and (2) any decrease in the market value of the referenced asset.[14] For example, in a cash-settled TRS with reference to 100,000 shares of the stock of General Motors, the short party agrees to pay to the long party an amount equal to *521 the sum of (1) any dividends and cash flow, and (2) any increase in the market value that the long party would have realized had it owned 100,000 shares of General Motors. The long party in turn agrees to pay to the short party the sum of (1) the amount equal to interest that would have been payable had it borrowed the notional amount from the short party, and (2) any depreciation in the market value that it would have suffered had it owned 100,000 shares of General Motors. In practical economic terms, a TRS referenced to stock places the long party in substantially the same economic position that it would occupy if it owned the referenced stock or security. There are two notable exceptions. First, since it does not have record ownership of the referenced shares, it does not have the right to vote them. Second, the long party looks to the short party, rather than to the issuer of the referenced security for distributions and the marketplace for any appreciation in value. The short party of course is in a different situation. It is entitled to have the long party place it in the same economic position it would have occupied had it advanced the long party an amount equal to the market value of the referenced security. But there are at least two salient distinctions, from the short party's perspective, between a TRS and a loan. First, the short party does not actually advance the notional amount to the long party. Second, it is subject to the risk that the referenced asset will appreciate during the term of the TRS. As will appear, the institutions that make a business of serving as short parties in TRSs deal with this exposure by hedging, a fact pivotal to one of CSX's claims here. The swap agreements at issue in this case are cash-settled TRSs entered into by TCI with each of eight counterparties, most significantly Deutsche Bank AG ("Deutsche Bank") and Citigroup Global Markets Limited ("Citigroup"), and by 3G with Morgan Stanley.[15] B. The Purposes of TRSs The goals of those who enter into TRSs vary. 1. Short Parties As a generic matter, a short party may be motivated to enter into a TRS simply to obtain the cash flow generated by the long party's payment of the negotiated rate on the notional amount over the term of the swap. But the quid pro quo for that cash flow is the exposure to the risk of market appreciation in the referenced security. As a matter of theory and on occasion in practice, a short party may accept that exposure either because it thinks the risk of appreciation is small—in other words, it is making its own investment decision with respect to the referenced security—or because it has a more or less offsetting long exposure that it wishes to hedge. But that is not what we are dealing with in this case. The defendants' counterparties in this case are major financial service institutions that are in the business, among others, of *522 offering TRSs as a product or service and seeking an economic return via the pseudo-interest, if it may be so called, that they receive on the notional amount and from other incidental revenue sources. They are not, in this aspect of their endeavors, in the business of speculating on the market fluctuation of the shares referenced by the TRSs into which they enter as short parties. Accordingly, they typically hedge their short exposures by purchasing the referenced securities in amounts identical to those referenced in their swap agreements.[16] Institutions that hedge short TRS exposure by purchasing the referenced shares typically have no economic interest in the securities.[17] They are, however, beneficial owners and thus have the right to vote the referenced shares.[18] Institutional voting practices appear to vary. As noted below, some take the position that they will not vote shares held to hedge TRS risk. Some may be influenced, at least in some cases, to vote as a counterparty desires. Some say they vote as they determine in their sole discretion. Of course, one may suppose that banks seeking to attract swap business well understand that activist investors will consider them to be more attractive counterparties if they vote in favor of the positions their clients advocate. In any case, however, the accumulation of substantial hedge positions significantly alters the corporate electorate. It does so by (1) eliminating the shares constituting the hedge positions from the universe of available votes, (2) subjecting the voting of the shares to the control or influence of a long party that does not own the shares, or (3) leaving the vote to be determined by an institution that has no economic interest in the fortunes of the issuer, holds nothing more than a formal interest, but is aware that future swap business from a particular client may depend upon voting in the "right" way. 2. Long Parties A long party to a TRS referencing equity in a public company gains economic exposure to the equity. In other words, it is exposed to essentially the same potential benefits and detriments as would be the case if it held the referenced security, and it gains that exposure without the need for the capital to fund or maintain such a purchase directly. This may permit such investors to operate with greater leverage or a lower cost than might be the case if they bought the security directly.[19] But those are by no means the only reasons motivating long parties to engage in TRSs. There can be tax advantages. Most importantly for purposes of this case, if the long party to a cash-settled TRS is not the beneficial owner of the referenced shares—a question hotly contested here— one interested in amassing a large economic exposure to the equity of a registered company may do so without making the public disclosure that is required when a *523 person or group acquires 5 percent or more of the outstanding shares. The avoidance of public disclosure can confer significant advantages on the long party. By concealing its activities, it may avoid other investors bidding up the referenced stock in anticipation of a tender offer or other corporate control contest and thus maximize the long party's profit potential. Second, it permits a long party who is interested in persuading an issuer to alter its policies, but desirous of avoiding an all-out battle for control, to select the time of its emergence to the issuer as a powerful player to a moment of its choosing, which may be when its exposure is substantially greater than 5 percent. In other words, it permits a long party to ambush an issuer with a holding far greater than 5 percent. One other point bears mention here. TRSs, like all or most derivatives, are privately negotiated contracts traded over the counter. Their terms may be varied during their lives as long as the counterparties agree. In consequence, a TRS that in its inception contemplates cash settlement may be settled in kind—i.e., by delivery of the referenced shares to the long party—as long as the parties consent. This confers another potential advantage on a long party that contemplates a tender offer, proxy fight, or other corporate control contest. By entering into cash-settled TRSs, such an investor may concentrate large quantities of an issuer's stock in the hands of its short counterparties and, when it judges the time to be right, unwind those swaps by acquiring the referenced shares from those counterparties in swiftly consummated private transactions. Moreover, even if such TRSs were settled in cash, the disposition by the short counterparties of the referenced shares held to hedge their swap exposures would afford a ready supply of shares to the market at times and in circumstances effectively chosen and known principally by the long party. The long party therefore likely would have a real advantage in converting its exposure from swaps to physical shares even if it does not unwind the swaps in kind. IV. The Events of Mid-2006 Until Late 2007 The events preceding this lawsuit are best understood by first considering the conduct of TCI and 3G separately. The Court then will analyze the relationship between TCI and 3G and their conduct in order to determine whether they in fact acted independently. A. TCI 1. TCI Develops a Position in CSX TCI began to research the United States railroad industry in the second half of 2006 and rapidly focused on Norfolk Southern and CSX, the two largest railroads in the eastern portion of the country. It decided to concentrate on CSX because it "had more legacy contracts that were below market value prices" and, in TCI's view, "ran less efficiently" than did Norfolk.[20] In short, it felt that changes in policy and, if need be, management could bring better performance and thus a higher stock price. That insight, if insight it was, however, would be worthless or, at any rate, less valuable if CSX did not act as TCI thought appropriate. So TCI embarked on a course designed from the outset to bring about changes at CSX. TCI made its initial investment in CSX on October 20, 2006, by entering into TRSs *524 referencing 1.4 million shares of CSX stock.[21] By the end of that month, it was party to TRSs referencing 1.7 percent of CSX shares.[22] TCI almost immediately contacted CSX and informed it that TCI had accumulated approximately $100 million of CSX stock. Two weeks later, it advised CSX that it had $300 million invested in CSX, "with the potential to scale that further," and sought a meeting with senior management at the Citigroup Transportation Conference,[23] which was scheduled to take place on November 14, 2006. In the meantime, TCI continued accumulating TRSs referencing CSX throughout November, engaging in seventeen swap transactions with various financial institution counterparties. By the middle of the month, it had increased its exposure to approximately 2.7 percent.[24] On November 14, 2006, TCI's Hohn and Amin attended the Citigroup conference. During the course of the day, they approached CSX representatives, including David Baggs, the assistant vice president of treasury and investor relations. Amin later told Baggs that TCI's swaps, the only type of investment exposure TCI then had in CSX, could be converted into direct ownership at any time.[25] Following the conference, TCI continued to build its position through additional swaps throughout December, reaching 8.8 percent by the end of 2006. 2. TCI's Leveraged Buyout Proposal TCI's belief that it could profit substantially if it could alter CSX's policies or, if need be, management manifested itself when, during December 2006, it began to investigate the possibility of a leveraged buyout ("LBO"). It explored this possibility with Goldman Sachs, sending its LBO model.[26] Its email "re-iterate[d]" the need to keep the communication highly confidential, as TCI "ha[d] not taken the idea to anyone else, nor [was its] holding publicly disclosed so any leakage of our conversations with you would be damaging for our relations with the company."[27] On January 22, 2007, by which date TCI had amassed TRSs referencing 10.5 percent of CSX,[28] TCI met with one of CSX's financial advisors, Morgan Stanley, to discuss the LBO proposal.[29] It noted during its presentation that a "`perfect storm' of conditions makes a private equity bid [for a major U.S. railroad] nearly inevitable" and that "CSX [was] logically the prime candidate" because of its "valuation, size, [and] quality of franchise." TCI urged Morgan Stanley to back the plan and suggested that CSX "formally hire an investment bank to proceed urgently."[30] Morgan Stanley relayed the substance of its conversation to CSX.[31] TCI then *525 approached CSX directly about the issue on February 8 at an investor conference organized by J.P. Morgan.[32] Amin asked Baggs for CSX's views on the LBO proposal. Baggs confirmed that Morgan Stanley had relayed the proposal but said that CSX was not in a position to respond. 3. January through March 2007 TCI continued to build its TRS position in CSX. In the meantime, CSX was not idle. On February 14, 2007, it filed a Report of Form 8-K in which it announced a plan to buy back $2 billion worth of its common stock.[33] By February 15, 2007, the date of the BB & T Transportation Conference, which was attended by CSX, TCI, and others, TCI had increased its position, still entirely via TRSs, to 13.6 percent.[34] At the conference, Amin approached Baggs and Oscar Munoz, CSX's chief financial officer, to inquire as to how CSX intended to conduct its share repurchase program. Baggs and Munoz declined to discuss the specifics in light of Regulation FD under the securities laws.[35] During the course of the brief conversation, however, Amin stated that TCI "owned" 14 percent of CSX.[36] Following the BB & T Transportation Conference, TCI began to contact other hedge funds about CSX. Hohn told Mala Gaonkar, a partner of Lone Pine Capital, to "[t]ake a look" at CSX[37] and Vinit Bodas, managing director of Deccan Value Advisors, that "csx is the best to us. keep this confidential [sic]."[38] On March 2, 2007, Hohn told Bodas to "[b]uy csx [sic]."[39] These contacts, the Court finds, were intended to promote the acquisition of CSX shares by hedge funds that TCI regarded as favorably disposed to TCI and its approach to CSX in an effort to build support for whatever course of action it ultimately might choose with respect to the company. Moreover, the evidence convinces the Court that it is likely that TCI made similar approaches to other such funds. Hohn contended in his witness statement that he had conversations with hedge funds such as Deccan Value Advisors, Lone Pine Capital, 3G, Seneca, Icahn, TWC, and Atticus, but only concerning the railroad industry generally, not CSX in particular.[40] Given the evidence to the contrary regarding Hohn's discussions with Deccan Value and Lone Pine, the Court's assessment of Hohn's credibility, and TCI's clear interest in doing so, the Court finds that Hohn did not limit his conversations with other hedge funds to industry-level topics. He suggested, in one way or another, that they buy CSX shares and alerted them to the fact that CSX had become a TCI target. *526 Up to this point, TCI had not acquired directly even a single share of CSX stock. But it decided to begin such acquisitions to place more pressure on the company and to lay the groundwork for a proxy fight. On March 2, 2007, TCI filed a premerger notification report under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 ("HSR Act")[41] in which it stated that it intended to acquire an undetermined number of CSX common shares in an amount that would meet or exceed $500 million.[42] A few days later, Amin advised CSX of the filing by letter.[43] TCI, in the meantime, had not abandoned the idea of taking CSX private in an LBO. Moreover, the circumstances suggest, and the Court finds, that it continued to discuss its interest in CSX and this and other possibilities for altering CSX's practices in a manner that TCI believed would cause its stock to rise,[44] at least at some level of specificity, with other like-minded hedge funds. The record demonstrates that TCI in March was invited by Austin Friars, a Deutsche Bank proprietary hedge fund, to listen in on a phone call that Austin Friars had arranged with John Snow, a former CSX chief executive officer, to review a list of questions that Austin Friars had compiled for him, and to submit questions of their own. This of course suggests, and the Court finds, that TCI had made Austin Friars aware of its investment in and interest in provoking basic change at CSX, else Austin Friars would have been unlikely to extend this invitation. Among the questions proposed by Austin Friars for Mr. Snow was whether railroad companies could "lend themselves to being ru[n] by private equity."[45] TCI responded that this, among other questions, was "great," thus making clear to Austin Friars, even if it had not specifically done so earlier, that TCI was looking at the possibility of trying to take CSX private. And this was not its only interaction with Deutsche Bank on the subject. It subsequently enlisted Deutsche Bank to analyze its LBO proposal, and Deutsche Bank concluded that CSX was a "terrific LBO candidate."[46] TCI continued to exert pressure on CSX management through the end of March. They met in New York on March 29, at which time Amin criticized management for failing to take certain actions and pressed it to implement TCI's proposals. He indicated that TCI held up to 14 percent of CSX's stock, the bulk of it in swaps that could be converted to physical shares, and that there were "no limits" to what TCI would do absent CSX's acquiescence in its demands.[47] The day after the meeting, March 30, TCI entered into additional swaps that brought its economic exposure to approximately 14.1 percent. 4. TCI Begins Preparing for a Proxy Fight In early April, TCI sent its LBO model *527 to Evercore, another CSX advisor,[48] and reached out to Hunter Harrison, the chief executive officer of Canadian National, a Class I railroad like CSX, to inquire whether "he would be interested in coming in as CEO of CSX."[49] By the middle of the month, Amin wrote that TCI was not "going to get what we want passively."[50] At more or less the same time, TCI began to unwind some of its swaps and to purchase CSX stock with a goal of keeping its exposure to CSX "roughly constant."[51] It is relevant to consider why TCI decided to shift some of its position into shares. Certainly there is no persuasive evidence that any economic factor that led TCI to choose swaps in the first place had changed. In other words, if financing considerations made swaps more attractive at the outset, that advantage persisted. So the explanation lies elsewhere. And it is, in the circumstances, obvious. TCI saw the payoff on its CSX investment, if there was to be one, resulting from a change in CSX policies and, if need be, management. But CSX had rebuffed all of TCI's overtures for substantive high level meetings and shown little interest in an LBO. So TCI by this time understood that a proxy fight likely would be required to gain control of or substantial influence over CSX. Holding shares that it could vote directly had an advantage over swaps because the votes of shares held by swap counterparties were less certain. They depended upon TCI's ability to influence those counterparties to vote the shares as TCI wished. This advantage, however, was not enough to cause TCI to dump a large part of its TRS position. 5. CSX Files Its 10-Q and Discloses that TCI Has an Economic Position On April 18, 2007, CSX filed its Form 10-Q for the period ending March 30, 2007, in which it disclosed that it had "received notice from The Children's Investment Fund Management (U.K.) LLP that it had made a filing under the Hart-Scott-Rodino Antitrust Improvements Act to acquire more than $500 million of CSX stock. That firm has also advised CSX that it currently holds a significant economic position through common stock ownership and derivative contracts tied to the value of CSX stock."[52] Following this disclosure, TCI essentially paused its trading activities. But it continued and, perhaps, stepped up its efforts to lay the groundwork for a proxy contest and to induce like-minded investors *528 to buy CSX shares. On May 8, Amin attended the Bear Stearns Transportation Conference where he gave a heavily attended speech. He set forth TCI's (1) interest in CSX, (2) proposals to improve CSX, and (3) view that management was unresponsive to those proposals.[53] The next day, TCI, among others, emailed CSX to ascertain the outcome of the shareholder vote, taken at the annual meeting on May 2, on a non-binding resolution concerning shareholders' ability to call special meetings.[54] CSX subsequently had little contact with TCI between the Bear Stearns Conference and August. TCI, however, met again with Evercore to express frustration that neither CSX management nor its board had been willing to meet to discuss TCI's proposals to improve operations and governance at the company. TCI informed Evercore that it directly owned 4 percent of CSX shares and had entered into swaps referencing over 10 percent of the company's shares.[55] 6. Proxy Fight Preparations Continue TCI claims to have begun reconsidering its position in CSX as it entered August 2007 because (1) it was reevaluating its entire portfolio in light of turmoil in the credit and equity markets and (2) it perceived a heightened risk of re-regulation of the railroad industry.[56] As we shall see, it in fact reduced its exposure by nearly 2 million shares. Nevertheless, on August 2, TCI met with D.F. King, its proxy solicitation firm, to discuss the mechanics of a proxy contest.[57] D.F. King advised that success in a proxy contest was more likely if TCI proposed a "short slate" of two director-nominees, rather than a control slate, because Institutional Shareholder Services ("ISS")[58] would be more willing to endorse that approach than to endorse a control slate at a company with a record of success vis-a-vis share price performance.[59] Hohn expressed his professed concern over re-regulation to CSX on August 23, stating that the proposed legislation was "a death threat to returns in the industry." He recommended that the railroad industry threaten to "cut all growth capex [i.e., capital expenditure]" because it would be "impossible to justify growth capex if this bill is passed."[60] CSX held an analyst/investor conference in New York on September 6. TCI attended. Following the conference, Hohn met with CSX advisors Evercore and Morgan Stanley and again expressed disappointment with and criticism of CSX.[61] TCI then contacted Heidrick & Struggles, an executive search firm, and asked it to locate one or two potential nominees to the board.[62] On September 20, TCI informed D.F. King that it was "likely to proceed in a *529 proxy contest,"[63] although Amin expressed skepticism that a minority slate of directors could accomplish what TCI wished to achieve. He therefore inquired as to the feasibility of running a slate of nominees for half the board, an idea that D.F. King thought would be unsuccessful because it would not command support by ISS.[64] TCI continued other preparations as well. It identified Tim O'Toole as a potential director nominee at the end of September, and Amin contacted him on October 6 to arrange a meeting between him and Hohn.[65] After the meeting, Amin put O'Toole in touch with an attorney at Schulte Roth, TCI's counsel, "to discuss what a process may look like."[66] TCI continued to press CSX. It sent an open letter to the board on October 16 in which it stated that it owned 4.1 percent of CSX's shares as a "long-term investor." Hohn and Amin reiterated demands that the board (1) "[s]eparate the [c]hairman and CEO roles," (2) "[refresh the [b]oard with new independent directors," (3) "[a]llow shareholders to call special shareholder meetings," (4) "[a]lign management compensation with shareholder interests," (5) "[p]rovide a plan to improve operations," (6) "[j]ustify the capital spending plan," and (7) "[p]romote open and constructive relations with labor, shippers and shareholders."[67] They requested also that the board freeze growth investment until the fate of any regulatory legislation becomes more apparent.[68] Hohn and Amin concluded that they "sincerely hope[d that CSX would] act now—and act voluntarily—to address the serious issues facing CSX."[69] TCI followed with a second open letter on October 22 in which it criticized CSX's response to its first letter as "pandering to Washington" and its management's statements to lawmakers as "reckless" and "irresponsible."[70] 7. TCI Concentrates its Swaps in Deutsche Bank and Citigroup As the likelihood of a proxy fight increased, TCI began to address the matter of its voting power. From the inception of its TRS acquisitions in October 2006 until the end of October 2007, TCI carefully distributed its swaps among eight counterparties so as to prevent any one of them from acquiring greater than 5 percent of CSX's shares and thus having to disclose its swap agreements with TCI. On October 30, 2007, however, TCI began unwinding its TRSs with Credit Suisse, Goldman Sachs, J.P. Morgan, Merrill Lynch, Morgan Stanley, and UBS and replacing them with TRSs with Deutsche Bank and Citigroup. Ultimately, it shifted exposure equal to approximately 9 percent of CSX from other counterparties into Deutsche Bank and Citigroup. TCI contends that it did this for two reasons. It claims first that it was motivated by the credit market crisis, believing that Deutsche Bank and Citigroup, as commercial banks backed by governmental central banks, would reduce TCI's exposure to counterparty credit risk. Perhaps so. But there was another and, from TCI's point of view, far more important reason for this move. The likelihood of its *530 counterparties voting the hedge shares with TCI was very much on its mind. Indeed, Hohn stated that he and Amin "discussed whether picking Deutsche Bank and Citigroup would be beneficial in terms of a potential vote of any hedge shares in a potential proxy fight. With respect to Deutsche Bank, we speculated that it might be helpful that a hedge fund within Deutsche Bank, Austin Friars Capital, also had a proprietary position in CSX."[71] But Hohn was modest. As the record demonstrates, TCI and Austin Friars had been working together, at least to some degree, on the CSX project for some time. TCI had consulted Deutsche Bank about its LBO proposal. And, as we shall see, there is additional reason to believe that Deutsche Bank was exceptionally receptive, to say the least, to TCI's goals and methods. 8. TCI Enters into Agreements with Two Director-Nominees TCI had met with Tim O'Toole in October to gauge his interest in being nominated for the CSX board. On December 6, 2007, O'Toole purchased 2,500 shares of CSX stock, which qualified him for election, and on December 10 entered into a formal agreement to be a nominee for the board.[72] The next day, and after a two week negotiation, Gary Wilson also agreed to be a nominee for TCI's slate of directors.[73] B. 3G 1. 3G Develops a Position in CSX 3G began to analyze the investment potential of the North American railroad industry during 2005 and 2006 but began to focus on CSX only toward the end of 2006 and beginning of 2007.[74] It claims that it perceived CSX to be 3G's best investment opportunity because it thought that (1) the share price of CSX was "less likely to decrease and more likely to appreciate over time as compared with other railroads," (2) "CSX had a large proportion of legacy contracts at below-market prices that would expire and could then be repriced over time" to increase revenues, and (3) "CSX had substantial upside potential from improving operational efficiency."[75] During the first week of February, Daniel Schwartz of 3G contacted CSX's investor relations department to inquire about the company.[76] He then emailed Behring on February 7 to indicate that the deadline had passed for CSX shareholders to submit proposals to be included in the company's proxy materials, including board nominations, for that year's annual general meeting. As 3G was not then a shareholder of CSX—indeed, it had no investments in or exposure to it of any kind—this demonstrates its interest in a proxy fight right from the outset.[77] 3G made its first investment in CSX on February 9, purchasing 1.7 million shares of common stock.[78] In the week ended *531 February 16, it amassed 8.3 million shares, or 1.9 percent of shares outstanding.[79] 3G then sold 17,340 shares and temporarily stopped trading.[80] Behring wrote to CSX's Ward on February 27 to request a meeting. He explained that his interest stemmed from his ownership of approximately 2 percent of CSX shares.[81] Baggs responded on Ward's behalf, stating that he was available to discuss the railroad industry and CSX, but indicating that the J.P. Morgan investor/analyst conference, scheduled in the middle of March, might be a convenient time for Behring to meet with Ward.[82] Behring attended the conference and introduced himself to Ward, who agreed to arrange a meeting with 3G representatives.[83] 2. 3G Resumes Buying CSX Shares On March 29, 2007, 3G began to purchase shares of CSX stock at a rapid rate. Between that date and April 17, it acquired 11:1 million shares, bringing its holdings to 4.4 percent of the company's outstanding stock.[84] Its April 2 purchases alone represented 89.6 percent of the total daily volume of trading in CSX stock.[85] But it stopped buying as abruptly as it began and made no further investments in CSX between April 17 and August 15.[86] 3G nevertheless remained very much interested in CSX. It attended the Bear Stearns Conference on May 8 and heard Amin's speech, which Schwartz characterized as "an amazing speech, ripping into csx mgmt!!!! [sic]."[87] It monitored the price of CSX stock during the speech and noted that it rose to $46.50, up 1.3 percent.[88] On May 9, 2007, Schwartz telephoned CSX to find out the results of votes conducted at the May 2 annual general meeting on various shareholder proposals.[89] He called again on May 17 to seek a meeting between 3G and CSX, a meeting that CSX refused to have. The two parties ultimately[90] agreed to arrange a June visit to CSX's Jacksonville headquarters.[91] 3. 3G's Hart-Scott-Rodino Filing Baggs and Munoz met with 3G at its New York offices on June 11. Behring told CSX that 3G would be making a Hart-Scott-Rodino premerger notification filing, which it subsequently did on June 13.[92] In a subsequent letter to CSX confirming the filing, 3G indicated that it intended *532 to acquire shares of CSX common stock in excess of $500 million and that it might acquire more than 50 percent.[93] 4. 3G Sells Some Shares Notwithstanding its Hart-Scott-Rodino filing, 3G did not change its investment position in CSX for nearly four months after its purchase on April 17. Starting in the middle of August, however, it began once again to increase its holdings, purchasing about 493,000 shares on August 15 and then entering into its first TRSs, which referenced 1.7 million CSX shares, on August 16.[94] Between August 24 and September 14, however, it sold 8.3 million CSX shares, over 40 percent of its position.[95] The Court deals with those sales below. 5. 3G Rebuilds its Investment in CSX By September 15, 3G held 11.6 million shares and swaps referencing 1.7 million shares, giving it economic exposure to just over 3 percent of the shares outstanding, and had stopped reducing its exposure. On September 26, 3G reversed course again and began increasing its direct position. By October 15, it had purchased 5.2 million shares and held 3.8 percent of the shares outstanding. Together with its swaps, it had economic exposure to 4.2 percent of the shares outstanding. 6. 3G Prepares for a Proxy Fight During this period, 3G also began to pursue possible nominees for the CSX board. It identified Behring as one potential candidate and focused on Gil Lamphere, a former director of Canadian National Railway, as another.[96] Following an October 12 meeting, Lamphere put together an operating plan for CSX entitled "Project Improve."[97] On November 2, Lamphere met with 3G's lawyers at Kirkland & Ellis.[98] He then purchased 22,600 shares of CSX stock, thus qualifying for election to the board, and, on December 10, 2007, entered into a formal agreement to be a board nominee.[99] 3G simultaneously acquired more shares and entered into more swaps. On November 1, it increased its physical holdings in CSX by 421,300 shares.[100] Between November 1 and 8, it entered into TRSs referencing an additional 1.58 million CSX shares.[101] On November 8, the final day on which 3G's CSX position changed, it held 4.1 percent of the shares outstanding and had swaps referencing 0.8 percent of shares outstanding, for an aggregate economic exposure of 4.9 percent of the company.[102] C. The Relationship Between TCI and 3G TCI and 3G have had a long-standing relationship. Synergy, a fund under the 3G umbrella, has been an investor in TCI *533 since its beginning.[103] TCI and 3G thus are well known to and communicate regularly with each other. Moreover, TCI is widely regarded as an "activist" hedge fund. This was of considerable interest to 3G, which regarded itself as inexperienced in playing such a role. Behring therefore sought out Hohn for the purpose of educating himself in this area.[104] 1. 3G Learns of TCI's Interest in CSX In the early part of 2007, Synergy received a letter from TCI disclosing the industries in which TCI was invested. The report showed a very large holding in "U.S. transportation." [105] Behring contacted TCI to inquire as to what this meant, He was particularly interested in TCI's holdings in the railroad industry.[106] Hohn told him that TCI had "ah interest in CSX," the size of which could be deduced from TCI's overall position in the railroad industry. While Hohn professes not to recall having told Behring of TCI's exact holdings in the company,[107] it would have been entirely natural for him to have disclosed at least the approximate size of TCI's holding. The Court finds that he did so. 2. 3G and TCI Discuss Activity in CSX As discussed above, 3G purchased its first shares of CSX on February 9 and made additional purchases on February 12. These were no piddling acquisitions. Its purchases over these two days constituted approximately 24 percent of the total market volume for CSX shares.[108] Moreover, its purchasing continued through February 16, by which time 3G had accumulated 8.3 million shares of CSX. In addition, 3G entered into some CSX credit default swaps ("CDS") on February 13 and 14.[109] These events coincided with an email that Hohn sent to Amin on February 13 with the subject line "Re: Arcelor Brasil MTO—urgent." The first paragraph stated that Hohn wanted to discuss communications that Amin had had with a third party regarding Arcelor Brasil. In the next paragraph, however, Hohn raised a new subject. He wrote that "[i]ncreased activity in csx cds [sic ] has caused excitement in the stock. I want to also discuss our friend alex [sic] of Brazil."[110] Hohn admitted that he spoke with Behring in relation to this email and that the conversation occurred at about the time the email was sent. At trial, however, he denied that his interest in discussing his "friend Alex" with Amin, or his conversation with Behring that occurred at this time, related to CDS activity in CSX.[111] *534 This testimony is not credible except perhaps in an extremely literal; sense. 3G was interested in CSX no later than January 2007 and Hohn knew it. 3G purchased a very large volume of CSX shares in the open market immediately before the email. Its CDS transactions, on the other hand, were a handful of private contracts that were characterized by defense counsel as "a tiny minuscule hedge," costing only $10,000 a year, "of what became an over billion dollar equity position."[112] The likelihood therefore is that Hohn's email "misspoke" in referring to 3G's CDS transactions, the intention being to refer to its stock purchases. But whether the reference was intended to be to CDSs or shares, the real "excitement" concerned the volume of trading in CSX shares, not a few private CDS transactions. The Court infers that Hohn wanted to discuss his "friend Alex" with Amin because he was concerned that 3G was acting in a manner that risked having the marketplace become aware of the accumulation of a position that might presage a control battle. 3. 3G and TCI Meet on March 29 This conclusion dovetails with the fact that 3G made no investments in CSX from February 22 until March 29. On the latter date, Behring met with Amin in New York.[113] Each claimed not to recall attending that meeting,[114] but both testified, unpersuasively, that they did not discuss their respective holdings in CSX.[115] On that very day, however, 3G resumed purchasing CSX stock, buying 11.1 million more shares by April 18. In addition, during this period, the waiting period resulting from TCI's HSR Act filing expired, and TCI also began purchasing CSX common stock, accumulating 17.6 million shares by April 18. 4. TCI and 3G Inquire of CSX Regarding a Shareholder Vote TCI and 3G, along with many other investors and CSX, attended the Bear Stearns Transportation Conference on May 8, 2007, at which Amin made his speech about TCI's position and interest in CSX. The next day, TCI contacted CSX to inquire about the results of shareholder voting at the CSX annual general meeting held one week earlier.[116] 3G made the same inquiry, as did several other investors.[117] According to Baggs, who had been the vice president of investor relations for over three years and with the company for over twenty, this "was the first instance in [his] experience of having investors calling about the outcome of a particular shareholder proposal."[118] 5. The August-September Pause We have seen already that TCI began professing concern about the risk of reregulation of railroads in August 2007. And for a period of about two weeks, TCI and 3G evidenced that concern. Both reduced their positions. Between August 23 and August 31, TCI reduced its exposure to *535 CSX by nearly 2 million, shares.[119] Indeed, Amin told Hohn on September 12, 2007 that he wished that TCI had sold CSX "10 dollars ago."[120] And over almost the same period—August 24 to September 14-3G sold 8.3 million CSX shares, over 40 percent of its position.[121] But this change of heart was temporary. 6. TCI and 3G Ramp Up Again On September 20, just six days after 3G completed the sales referred to above, TCI informed D.F. King that it likely would go ahead with a proxy contest and began looking for suitable director-nominees. During that same time period, 3G contemplated proposing Behring as a director-nominee.[122] Amin and Behring met again on September 26. Although both parties deny that they discussed anything related to the purchase of CSX common stock, they both admitted that the topic of CSX likely arose and that each knew that the other had an investment position in the company.[123] And just as occurred on March 29, the date of an earlier Amin-Behring meeting, 3G again began buying CSX holdings on the day of this September 26 meeting.[124] By October 15, it had purchased over 5 million shares, bringing its physical holdings to 16.8 million shares. 7. TCI and 3G Search for Director Nominees TCI and 3G both began searching for director-nominees during the same time period. TCI identified Tim O'Toole as a potential candidate and contacted him on October 6 to arrange a meeting. Hohn and O'Toole met in London on October 8. By October 5, Behring, he says, was reviewing annual reports to identify suitable director candidates. He identified Lamphere around that time and met with him in New York on October 8. Behring met with Lamphere again on October 12 and then met with Amin on October 17. He denied having told Amin during that meeting that 3G was searching for nominees and that it had met twice with a potential candidate. V. The Proxy Contest A. TCI and 3G Disclose the Formation of a Formal Group On December 10, 2007, Lamphere[125] and O'Toole[126] entered into nominee agreements with 3G and TCI, respectively, and on December 11, Gary Wilson agreed with TCI to be a nominee.[127] On December 19, 2007, TCI, 3G, Lamphere, O'Toole, and Wilson (the "Group") filed a Schedule 13D with the SEC. The filing disclosed that they had "entered into an agreement to coordinate certain of their efforts with regard [sic ] (i) the purchase and sale of [various shares and instruments] and (ii) the proposal of certain actions and/or transactions to [CSX]."[128] It *536 stated that the Group disclosed that it collectively owned 8.3 percent of CSX shares outstanding, all of which were said to have been "originally acquired ... for investment in the ordinary course of business" save for the 25,100 purchased by Lamphere and O'Toole in connection with becoming director nominees.[129] The Group disclosed that it "intend[ed] to conduct a proxy solicitation" but "ha[d] no present plan or proposal that would relate to or result in any of the matters set forth in subparagraphs (a)—(j) of Item 4."[130] The Group reserved the right to take future action that it deemed appropriate: The 13D disclosed also that TCI had cash-settled equity swap arrangements with eight counterparties that gave it economic exposure to approximately 11 percent of CSX's shares outstanding. 3G similarly disclosed its swap economic exposure to 0.8 percent, all of which was held with Morgan Stanley. Both disclaimed beneficial ownership of the underlying shares referenced by their TRSs.[131] B. The Group Files Its Notice of Intent to Nominate Directors Pursuant to CSX's amended and restated bylaws, the Group filed a "Stockholder Notice of Intent to Nominate Persons for Election as Directors of CSX Corporation" ("Notice") on January 8, 2008.[132] C. CSX and TCI Attempt to Negotiate a Resolution Edward Kelly, the presiding director of the CSX board, met with Hohn in January to see whether a proxy contest could be avoided. CSX expressed a willingness to nominate three of the Group's director nominees, including Hohn and Behring, and a fourth mutually acceptable candidate.[133] But Kelly and Hohn were unable to agree on a fourth candidate.[134] Hohn's efforts in the negotiations were not limited to seating directors on the board. On January 14, he demanded that (1) he be able to interview the current directors, dictate which directors the Group's three nominees would replace, and determine which committees they would be seated on, (2) the roles of CEO and chairman be split, (3) the board's size not be increased without approval of the shareholders or 80 percent of the board, and (4) shareholders controlling 10 or 15 percent of the outstanding shares of voting stock be permitted to call a special meeting at any time and for any legally permissible purpose.[135] Hohn told Kelly that he would create a dissident board and make things unpleasant for Kelly. Moreover, he told Kelly that if TCI were successful in electing its five directors, Ward's future would be "bleak."[136] Kelly responded on January *537 16 that he was "concerned about [Hohn's] apparent interest in gaining effective control."[137] The two, sides met the next day, and Kelly inquired as to whether Hohn would be interested in a standstill agreement.[138] Hohn was not receptive to the idea so, on January 18, Kelly informed Hohn that the differences between CSX and TCI would be "impossible to bridge," particularly because of Hohn's position that a standstill agreement, no matter its contents, would not be acceptable.[139] Three days later, the Group supplemented its Notice to include its intent to present a proposal that would amend the CSX bylaws to allow shareholders holding at least 15 percent of all shares outstanding the ability to call a special meeting.[140] D. CSX and The Group File Proxy Materials 1. CSX CSX filed a preliminary proxy statement on February 21 and a revised version on February 22, 2008. It urged shareholders to vote for the board's proposed directors and not to vote for any nominees offered by the Group.[141] It stated also that the shareholders would be presented with three proposals concerning their ability to call a special meeting: one supported by CSX, one by TCI, and a third. CSX proposed amending the bylaws to permit holders of 15 percent of the company's outstanding shares to require the board to call a special meeting unless the proposed topic of the meeting had been voted on within the previous year or would be voted on at the annual meeting within the next ninety days.[142] It urged that its proposal provided safeguards against the use of such meetings as a mechanism for disruption or delay that were lacking in the other proposals.[143] 2. The Group's Proxy Statement The Group filed its preliminary proxy, statement on March 10, 2008. It proposed Hohn, Behring, Lamphere, O'Toole, and Wilson for election to the board and advocated its proposal to permit investors holding at least 15 percent of CSX stock to call a special meeting for any purpose permissible under Virginia law. The materials noted that the Group collectively held 35.1 million shares, representing approximately 8.7 percent of those outstanding, and that the value of its investment in CSX exceeded $1.65 billion.[144] It disclosed its members' swap arrangements and the aggregate percentage of CSX shares to which they provided economic exposure.[145] It disclosed also that Deutsche Bank beneficially owned 36.7 million shares of CSX, or 9.1 percent of the common stock.[146] *538 VI. The Positions of the Parties CSX contends that (1) TCI violated Section 13(d) of the Exchange Act by failing to disclose its beneficial ownership of shares of CSX common stock referenced in their TRSs and (2) TCI and 3G violated Section 13(d) by failing timely to disclose the formation of a group. It argues further that TCI and 3G violated Section 14(a) of the Exchange Act because their proxy statements were materially false and misleading. Its state law claim contends that defendants' notice of intent to nominate directors failed to comply with CSX's bylaws in violation of Section 13.1-624 of the Virginia Stock Corporation Act.[147] Defendants contend first that CSX and Ward violated Section 14(a) of the Exchange Act because the CSX proxy statement is materially false and misleading concerning (1) executive compensation and director stock awards, and (2) the defendants and their intentions. They allege also that a bylaw amendment passed by CSX on February 4 concerning shareholder special meetings violates Section 13.1-680 of the Virginia Stock Corporation Act.[148] Discussion I. Section 13(d) The Williams Act, which enacted what now is Section 13(d) of the Exchange Act, was passed to address the increasing frequency with which hostile takeovers were being used to effect changes in corporate control.[149] Section 13(d) in particular was adopted "to alert the marketplace to every large, rapid aggregation or accumulation of securities, regardless of technique employed, which might represent a potential shift in corporate control." [150] The core of the statute for present purposes is Section 13(d)(1), which provides in relevant part that "Any person who, after acquiring directly or indirectly the beneficial ownership of any equity security of a class which is registered pursuant to section 78l of this title, ... is directly or indirectly the beneficial owner of more than 5 per centum of such class shall, within ten days after such acquisition, send to the issuer of the security at its principal executive office, by registered or certified mail, send to each exchange where the security is traded, and file[ ] with the Commission, a statement containing such of the following information, and such additional information, as the Commission may by rules and regulations, prescribe as necessary or appropriate in the public interest or for the protection of investors— *539 "(A) the background, and identity,... and the nature of such beneficial ownership by, such person and all other persons by whom or on whose behalf the purchases have been or are to be effected; * * * * * * "(C) if the purpose of the purchases or prospective purchases is to acquire control of the business of the issuer of the securities, any plans or proposals which such persons may have to liquidate such issuer, to sell its assets to or merge it with any other persons, or to make any other major change in its business or corporate structure; "(D) the number of shares of such security which are beneficially owned, and the number of shares concerning which there is a right to acquire, directly or indirectly, by (i) such person, and (ii) by each associate of such person, giving the background, identity, residence, and citizenship of each such associate...."[151] In order to prevent circumvention of Section 13(d)(1), Section 13(d)(3) further provides that "[w]hen two or more persons act as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of securities of an issuer, such syndicate or group shall be deemed a `person' for the purposes of this subsection." [152] The heart of the dispute presently before the Court concerns whether (1) TCI's investments in cash-settled TRSs referencing CSX shares conferred beneficial ownership of those shares upon TCI, and (2) TCI and 3G formed a group prior to December 12, 2007. A. Beneficial Ownership The concept of "beneficial ownership" is the foundation of the Williams Act and thus critical to the achievement of its goal of providing transparency to the marketplace.[153] Although Congress did not define the term, its intention manifestly was that the phrase be construed broadly.[154] The SEC did so in Rule 13d-3, which provides in relevant part: "(a) For the purposes of sections 13(d) and 13(g) of the Act a beneficial owner of a security includes any person who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise has or shares: "(1) Voting power which includes the power to vote, or to direct the voting of, such security; and/or, "(2) Investment power which includes the power to dispose, or to direct the disposition of, such security. "(b) Any person who, directly or indirectly, creates or uses a trust, proxy, power of attorney, pooling arrangement or any other contract, arrangement, or device with the purpose of [sic ] effect of divesting such person of beneficial ownership of a security or preventing the vesting of such beneficial ownership as part of a plan or scheme to evade the *540 reporting requirements of section 13(d) or (g) of the Act shall be deemed for purposes of such sections to be the beneficial owner of such security."[155] The SEC intended Rule 13d-3(a) to provide a "broad definition" of beneficial ownership so as to ensure disclosure "from all those persons who have the ability to change or influence control." [156] This indeed is apparent from the very words of the Rule. By stating that a beneficial owner "includes" rather than "means" any person who comes within the criteria that follow, it made plain that the language that follows does not exhaust the circumstances in which one might come within the term.[157] The phrases "directly or indirectly" and "any contract, arrangement, understanding, relationship, or otherwise" reinforce that point and demonstrate the focus on substance rather than on form or on the legally enforceable rights of the putative beneficial owner. It therefore is not surprising that the SEC, at the very adoption of Rule 13d-3, stated that the determination of beneficial ownership under Rule 13d-3(a) requires "[a]n analysis of all relevant facts and circumstances in a particular situation... in order to identify each person possessing the requisite voting power or investment power. For example, for purposes of the rule, the mere possession of the legal right to vote securities under applicable state or other law ... may not be determinative of who is a beneficial owner of such securities inasmuch as another person or persons may have the power whether legal, economic, or otherwise, to direct such voting."[158] Nor does Rule 13d-3(a) exhaust the Commission's efforts to cast a very broad net to capture all situations in which the marketplace should be alerted to circumstances that might result in a change in corporate control. Rule 13d-3(b) was adopted so that Rule 13d-3(a) "cannot be circumvented by an arrangement to divest a person of beneficial ownership or to prevent the vesting of beneficial ownership as part of a plan or scheme to evade the reporting requirements of [S]ection 13(d)."[159] With these considerations in mind, the Court turns to CSX's contentions. It first considers whether TCI had beneficial ownership, within the meaning of Rule 13d-3(a), of the shares of CSX stock referenced by its swap agreements and held by its counterparties by considering the facts and circumstances surrounding those contracts. It then turns to the question of whether TCI, assuming it were not a beneficial owner of the hedge shares under Rule 13d-3(a), nevertheless would be *541 deemed a beneficial owner under Rule 13d-3(b) because it used the TRSs as part of a plan or scheme to evade the disclosure requirements of Section 13(d) by avoiding the vesting of beneficial ownership in TCI. 1. Rule 13d-3(a) The contracts embodying TCI's swaps did not give TCI any legal rights with respect to the voting or disposition of the CSX shares referenced therein. Nor did they require that its short counterparties acquire CSX shares to hedge their positions. But the beneficial ownership "inquiry focuses on any relationship that, as a factual matter, confers on a person a significant ability to affect how voting power or investment power will be exercised, because it is primarily designed to ensure timely disclosure of market-sensitive data about changes in the identity of those who are able, as a practicable matter, to influence the use of that power."[160] It therefore is important to consider whether TCI's TRSs contemplated that its counterparties would hedge their positions with CSX shares and, if so, whether TCI had "a significant ability to affect how voting power or investment power will be exercised." a. Investment Power TCI acknowledges, as it must, that its swaps contemplated the possibility that the counterparties might—indeed would— hedge by acquiring physical shares. It emphasizes, however, that they were under no contractual obligation to do so and, indeed, had other means of hedging their short positions. Moreover, TCI asserts that it had no influence over how its counterparties disposed of physical shares used to hedge a swap, if any, at the time of termination. TCI therefore maintains that it had no investment power over any shares used to hedge its swaps. TCI correctly describes the legal instruments constituting the swaps. They do not require the counterparties to hedge their positions by purchasing CSX stock and do not in terms address the question of how the counterparties will dispose of their hedges at the conclusion of the swaps. But the evidence is overwhelming that these counterparties in fact hedged the short positions created by the TRSs with TCI by purchasing shares of CSX common stock. As the charts set forth in Appendix 1 show, they did so on virtually a share-for-share basis and in each case on the day or the day following the commencement of each swap.[161] *542 This is precisely what TCI contemplated and, indeed, intended. None of these counterparties is in the business, so far as running its swap desk is concerned, of taking on the stupendous risks entailed in holding unhedged short (or long) positions in significant percentages of the shares of listed companies. As a practical matter, the Court finds that their positions could not be hedged through the use of other derivatives.[162] Thus, it was inevitable that they would hedge the TCI swaps by purchasing CSX shares. TCI knew that the banks would behave in this manner and therefore sought at the outset to spread its TRS agreements across a number of counterparties so as to avoid pushing any counterparty, individually, across the 5 percent threshold that would have triggered an obligation on the counterparty's part to disclose its position under Regulation 13D.[163] This would have been a cause for concern only if TCI understood that its counterparties, although not legally obligated to do so, in fact would hedge by purchasing CSX shares equal or substantially equal to the shares referenced by the TCI swaps.[164] Moreover, TCI understood that there were advantages to TCI of its short counterparties hedging with physical shares. The fact that these are nominally cash-settled TRSs does not necessarily mean that they all will be settled for cash. TCI and its counterparties have the ability to agree to unwind the swaps in kind, i.e., by delivery of the shares to TCI at the conclusion of each transaction, as indeed commonly occurs.[165] That simple fact means that the hedge positions of the counterparties hang like the sword of Damocles over the neck of CSX. Once the Hart-Scott-Rodino waiting period expired, nothing more was required to move the legal ownership of the hedge shares from the banks to TCI than the stroke of a pen or the transmission of an email. This greatly enhances TCI's leverage over CSX, even if it never settles any of the TRSs for cash, as indeed has been the case to date. And TCI so views the realities as evidenced by Amin's statement to CSX that TCI's swap position could be converted to shares at any time as well as his assertion on February 15, 2007, that TCI "owned" a quantity of shares that clearly included the shares held by its counterparties. The corollary to the bank's behavior at the front end of these transactions, viz. purchasing physical shares to hedge risk, is that the banks would sell those shares at the conclusion of the swaps (assuming cash settlement) so as to avoid the risk that holding the physical shares would entail once the downside protection of the swap was removed. And that is exactly what happened here. With very minor exceptions, whenever TCI terminated a swap, the counterparty sold the same number of physical shares that were referenced in the unwound swap and it did so on the same day that the swap was terminated.[166] Citigroup, *543 Credit Suisse, Deutsche Bank, Goldman, and Morgan Stanley did precisely this, as did Merrill Lynch and UBS save that (1) Merrill Lynch's sales on a few occasions involved slightly different numbers of shares, and (2) UBS on five occasions sold on the day following the termination of a swap.[167] To be sure, there is no evidence that TCI explicitly directed the banks to purchase the hedge shares upon entering into the swaps or to sell them upon termination. Nor did it direct the banks to dispose of their hedge shares by any particular means. But that arguably is not dispositive. On this record, it is quite clear that TCI significantly influenced the banks to purchase the CSX shares that constituted their hedges because the banks, as a practical matter and as TCI both knew and desired, were compelled to do so. It significantly influenced the banks to sell the hedge shares when the swaps were unwound for the same reasons. b. Voting Power There is no evidence that TCI and any of its counterparties had explicit agreements that the banks would vote their hedge shares in a certain way.[168] Moreover, the policies and practices of the counterparties with respect to voting hedge shares vary.[169] But these are not the only pertinent considerations. (1) Deutsche Bank Between October and November 2007, TCI moved swaps referencing 28.4 million and 18.0 million shares into Deutsche Bank and Citigroup, respectively, while leaving swaps referencing 1,000 shares with each of its remaining six counterparties.[170] Hohn offered two reasons for doing so. First, he said that he felt that commercial banks, which are backed by governmental institutions, entailed less credit risk than investment banks. Second, he conceded that he picked Deutsche Bank and Citigroup—as opposed to other commercial banks—because he thought that "would be beneficial in terms of a potential vote of any hedge shares in a potential proxy fight."[171] Hohn's credit risk argument is not entirely persuasive. Assuming arguendo that the commercial banks in general were safer than investment banks, it was by no means clear in November 2007 that Citigroup was not a credit risk, notwithstanding its backing by the Federal Reserve.[172]*544 But it is unnecessary to pause on that point, as it is entirely clear that the move into at least Deutsche Bank was made substantially out of Hohn's belief that he could influence the voting of the shares it held to hedge TCI's swaps. As an initial matter, Hohn was well aware that Austin Friars, a hedge fund within Deutsche Bank, held a proprietary position in CSX common stock. From at least March 2007, when Austin Friars invited TCI to submit questions for and listen in on the John Snow call, the two funds shared a common interest in taking a railroad private. Nor was this the first time that they had shared detailed information about positions or plans. Hohn believed that TCI could exploit this relationship to influence how Austin Friars, and in turn how Deutsche Bank, voted its CSX shares.[173] But there is considerably more to the Deutsche Bank situation than Austin Friars. CSX initially set the record date for voting at its annual meeting as February 27, 2008.[174] Immediately before that record date, Deutsche Bank owned 28.4 million shares to hedge its short position created by its TCI TRSs.[175] Immediately preceding and following the record date, there were large and aberrant movements of CSX shares into and out of Deutsche Bank's hands.[176] CSX argues that these movements show that Deutsche Bank (1) had sought to boost revenues by loaning the shares in its hedge positions, presumably to short sellers, (2) recalled the loans so that it would own the shares on the record date and thus be entitled to vote them, (3) wished to vote those shares pursuant to an arrangement with TCI, and (4) then reloaned the shares immediately after the record date. TCI would have the Court reject this scenario as speculative. It argues that the record date for voting coincided closely[177] with the record date determining the right to receive dividends and that it would have been quite natural for Deutsche Bank to have acted to ensure its receipt of those funds. Moreover, it argues that Deutsche Bank witnesses denied that any recall occurred.[178] TCI's argument falls considerably short. For one thing, CSX adjourned its annual meeting and changed the record date after the record date' for payment of a dividend had passed.[179] There is no evidence that the record date for the dividend was changed. Nevertheless, a similar influx and outflow of shares took place around the adjourned record date.[180] In consequence, the desire to receive the dividend is not a likely explanation for what transpired. Moreover, the bank witnesses upon whom TCI relies in fact lacked any personal knowledge of the material facts.[181] *545 In the last analysis, the question whether there was an agreement—explicit or implicit—between Deutsche Bank and TCI with respect to the voting of the shares is a close one. In view of the grounds on which the Court ultimately disposes of this case, however, it is unnecessary to make a finding on the point. (2) All of the Counterparties The Court is not persuaded that there was any agreement or understanding between TCI and any of the other banks with respect to the voting of their hedge shares. But the SEC has made plain that a party has voting power over a share under Rule 13d-3(a)(1) if that party has the "ability to control or influence the voting ... of the securities."[182] So the question of influence must be considered with respect to all of the banks. As an initial matter, TCI, which knew that the banks would hedge the swaps by purchasing physical shares, could and at least to some extent did select counterparties by taking their business to institutions it thought would be most likely to vote with TCI in a proxy contest. D.F. King's "Preliminary Vote Outlook" presentation concerning the proxy contest indicates that certain types of investors adhere to particular voting patterns in contested elections and are influenced by the recommendations made by institutional proxy advisory firms such as RiskMetrics (formerly ISS).[183] Although D.F. King was clear that it could not guarantee the manner in which a particular investor would vote, patterns of behavior made it possible for TCI to predict the likelihood of that vote and place its swap transactions accordingly. Further, some of the banks' policies gave TCI the power to prevent a share from being voted. Credit Suisse, for example, appears to follow a policy of not voting its hedge shares if it is solicited by its counterparty in a contested situation.[184] In such instances, then, TCI could ensure that that bank's hedge shares would not be voted against it by the simple expedient of soliciting its counterparty. Thus, by entering into a TRS with Credit Suisse, TCI was in a position to ensure that Credit Suisse would purchase shares that otherwise might have been voted against TCI in a proxy fight and then to ensure that those shares would not be so voted. While this would not be as favorable a result as dictating a vote in its favor, it would be better than leaving the votes of those shares to chance. Finally, the fact that TCI thought it could influence Citigroup at least suggests that its relationship with Citigroup permitted it to do so. Nevertheless, the proof on this point is not sufficient to find that TCI in fact had that ability. c. Synthesis In the last analysis, there are substantial reasons for concluding that TCI is the beneficial owner of the CSX shares held as hedges by its short counterparties. The definition of "beneficial ownership" in Rule 13d-3(a) is very broad, as is appropriate to its object of ensuring disclosure "from all... persons who have the ability [even] to *546... influence control."[185] It does not confine itself to "the mere possession of the legal right to vote [or direct the acquisition or disposition of] securities,"[186] but looks instead to all of the facts and circumstances to identify situations in which one has even the ability to influence voting, purchase, or sale decisions of its counterparties by "legal, economic, or other[ ]" means.[187] On this record, TCI manifestly had the economic ability to cause its short counterparties to buy and sell the CSX shares. The very nature of the TRS transactions, as a practical matter, required the counterparties to hedge their short exposures. And while there theoretically are means of hedging that do not require the purchase of physical shares, in the situation before the Court it is perfectly clear that the purchase of physical shares was the only practical alternative. Indeed, TCI effectively has admitted as much. It did so by spreading its swap transactions among eight counterparties to avoid any one hitting the 5 percent disclosure threshold and thus triggering its own reporting obligation—a concern that was relevant only because TCI knew that the counterparties were hedging by buying shares. And it did so in closing argument, where its counsel said that the banks' purchases of CSX shares were "the natural consequence" of the swap transactions.[188] Thus, TCI patently had the power to cause the counterparties to buy CSX. At the very least, it had the power to influence them to do so. And once the counterparties bought the shares, TCI had the practical ability to cause them to sell simply by unwinding the swap transactions. Certainly the banks had no intention of allowing their swap desks to hold the unhedged long positions that would have resulted from the unwinding of the swaps. The voting situation is a bit murkier, but there nevertheless is reason to believe that TCI was in a position to influence the counterparties, especially Deutsche Bank, with respect to the exercise of their voting rights. TCI nevertheless argues strenuously against a finding that it has beneficial ownership of the shares, focusing heavily on the fact that it had no legal right to direct its short counterparties to buy or sell shares or to vote them in any particular way, indeed at all.[189] Some amici, more cautiously, urge that any finding of beneficial ownership be rooted in unique facts of *547 this case to avoid upsetting what they say is the settled expectation of the marketplace that equity swaps, in and of themselves, do not confer beneficial ownership of the referenced shares. They contend that a broader ruling could have extensive implications and that the subject therefore is dealt with more appropriately by administrative agency rule making than case-by-case adjudication. And the SEC Division of Corporation Finance argues—perhaps inconsistently with some of the Commission's past statements about the breadth of the definition of beneficial ownership[190]— that there is no beneficial ownership where the short counterparties buy, sell, or vote their hedge shares as a result of their own economic incentives and not pursuant to legal obligations owed to their long counterparties, although it does not comment on the facts of this case. The Division, moreover, suggests that a contrary ruling would be novel and upset settled expectations of the market. The focus on TCI's legal rights under its swap contracts, while those rights certainly are relevant, exalts form over substance. The securities markets operate in the real world, not in a law school contracts classroom. Any determination of beneficial ownership that failed to take account of the practical realities of that world would be open to the gravest abuse. Indeed, this Court is not alone in recognizing that abuses would be facilitated by a regime that did not require disclosure of the sort that would be required if "beneficial ownership" were construed as advocated by CSX.[191] Moreover, the Court is inclined to the view that the Cassandra-like predictions of dire consequences of holding that TCI has beneficial ownership under Rule 13d-3(a) have been exaggerated.[192] For one thing, there is no reason to believe that there are many situations in which the 5 percent reporting threshold under Section 13(d) would be triggered by such a ruling. The overwhelming majority of swap transactions would proceed as before without any additional Regulation 13D or G reporting requirements. The issue here, moreover, is novel and hardly settled. And markets can well adapt regardless of how it ultimately is resolved. Indeed, the United Kingdom reportedly now requires disclosure of economic stakes greater than I percent in companies involved in takeovers and is considering requiring disclosure at the 3 percent level in other companies, levels lower than would be required to trigger Section 13(d), assuming that the *548 TRSs here fall within Rule 13d-3(a).[193] Yet there is no reason to believe that the sky has fallen, or is likely to fall, in London. Nor do potentially broad implications or any supposed advantage of administrative rule making over adjudication permit a court to decline to decide an issue that must be decided in order to resolve a case before it. But it is equally true that courts should decide no more than is essential to resolve their cases. In this case, it is not essential to decide the beneficial ownership question under Rule 13d-3(a). As is discussed immediately below, TCI used the TRSs with the purpose and effect of preventing the vesting of beneficial ownership of the referenced shares in TCI as part of a plan or scheme to evade the reporting requirements of Section 13(d). Under Rule 13d-3(b), TCI, if it is not a beneficial owner under rule 13d-3(a), therefore is deemed— on the facts of this case—to beneficially own those shares. The Court therefore does not rule on the legal question whether TCI is a beneficial owner under Section 13d-3(a). 2. Rule 13d-3(b) In construing any statute or rule, the Court is governed by well-established principles. It first must examine "the language of the provision at issue,"[194] which governs "`unless that meaning would lead to absurd results,'" [195] In addition, the provision "should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error."[196] We begin with the language. Rule 13d-3(b) provides: "Any person who, directly or indirectly, [1] creates or uses a trust, proxy, power of attorney, pooling arrangement or any other contract, arrangement, or device [2] with the purpose of [sic] effect of divesting such person of beneficial ownership of a security or preventing the vesting of such beneficial ownership [3] as part of a plan or scheme to evade the reporting requirements of section 13(d) or (g) of the Act shall be deemed for purposes of such sections to be the beneficial owner of such security." [197] Thus, the Rule by its plain terms is triggered when three elements are satisfied: • the use of a contract, arrangement, or device • with the purpose or effect of divesting such person of beneficial ownership of a security or preventing the vesting of such beneficial ownership • as part of a plan or scheme to evade the reporting requirements of Section 13(d) or (g). It is undisputed that TCI's cash-settled TRSs are contracts. The first element therefore concededly is satisfied. The evidence that TCI created and used the TRSs, at least in major part, for the purpose of preventing the vesting of beneficial ownership of CSX shares in TCI *549 and as part of a plan or scheme to evade the reporting requirements of Section 13(d) is overwhelming. Joe O'Flynn, the chief financial officer of TCI Fund told its board, albeit not in the specific context of CSX, that one of the reasons for using swaps is "the ability to purchase without disclosure to the market or the company."[198] TCI emails discussed the need to make certain that its counterparties stayed below 5 percent physical share ownership,[199] this in order to avoiding triggering a disclosure obligation on the part of a counterparty. TCI admitted that one of its motivations in avoiding disclosure was to avoid paying a higher price for the shares of CSX, which would have been the product of front-running that it expected would occur if its interest in CSX were disclosed to the market generally.[200] Indeed, TCI acquired only approximately 4.5 percent in physical CSX shares to remain safely below the 5 percent reporting requirement until it was ready to disclose its position. To be sure, there is evidence that TCI argues points in the opposite direction. It did disclose to CSX the fact that it had exposure to its stock well before it made a Schedule 13D filing. But that does not carry the day. Telling an issuer that an investor has exposure to its stock is quite a different matter than timely disclosing to the marketplace generally the details of the investor's position, its plans and intentions, its contracts and arrangements with respect to the issuer's securities, and its financing and then keeping that information up to date as Regulation 13D requires. For one thing, the market in general does not necessarily know even what the issuer knows. And the issuer is left to guess as to many of the important matters that compliance with Regulation 13D requires. Here, TCI's limited disclosure to CSX and its concealment of broader, more timely, and more accurate information from the marketplace served its objectives. It exerted pressure on CSX, a pressure that was enhanced by the lack of complete information. And it kept the marketplace entirely and, after CSX filed its Form 10-Q, largely in the dark, thus serving TCI's interest in permitting it to build its position without running up the price of the stock. In all the circumstances, the Court finds that each of the elements of Rule 13d-3(b) is satisfied here. This outcome is supported by the views of the SEC's Division of Corporation Finance as the Court understands them. While the Division did not comment upon or attempt to analyze the facts of this case in light of governing legal standards, its amicus letter appears to take two positions. First, it states the view that "the long party's underlying motive for entering into the swap transaction generally is not a basis for determining whether there is `a plan or scheme to evade.'"[201] It goes on to say that it believes "that the mental state contemplated by the words `plan or scheme to evade' is generally the intent to enter into an arrangement that creates a false appearance." It states that "a person who entered into a swap would be a beneficial owner under Rule 13d-3(b) if it were determined that the person did so with the intent to create the false appearance of non-ownership of a security." But it adds that it "cannot rule out the possibility *550 that, in some unusual circumstances, a plan or scheme to evade the beneficial ownership provisions of Rule 13d-3 might exist where the evidence does not indicate a false appearance or sham transaction."[202] Having said that, however, the letter concludes that "as a general matter, a person that does nothing more than enter into an equity swap should not be found to have engaged in an evasion of the. reporting requirements."[203] As an initial matter, no one suggests that TCI did "nothing more than enter into an equity swap." At a minimum, it entered into the TRSs rather than buying stock for the purpose, perhaps among others, of avoiding the disclosure requirements of Section 13(d) by preventing the vesting of beneficial ownership in TCI. Passing on to its other point, the Division's assertion that "a person who entered into a swap would be a beneficial owner under Rule 13d-3(b) if it were determined that the person did so with the intent to create the false appearance of non-ownership of a security" suffers from some degree of ambiguity. On the one hand, the statement may be intended merely to illustrate a specific intent that would satisfy the test, without intending to exhaust the possibilities. On the other, it may intend to convey the thought that an intent to create a false appearance of non-ownership is indispensable to a Rule 13d-3(b) finding. Two considerations persuade the Court that the former is the case. First, the Division declined to "rule out the possibility that ... a plan or scheme to evade ... might exist [without] a false appearance or sham transaction." It follows that it cannot be saying that, in its view, a false appearance of non-ownership is a necessary condition for application of Rule 13d-3(b). Second, reading Rule 13d-3(b) as requiring an intent to create a false appearance of non-ownership would violate a fundamental principle of statutory construction. An appearance of non-ownership cannot be false unless one in fact is at least a beneficial owner. That beneficial ownership would satisfy Rule 13d-3(a), thus making Rule 13d-3(b) superfluous. In consequence, Rule 13d-3 as a whole is inconsistent with any view that a false appearance of non-ownership is a prerequisite to application of Rule 13d-3(b). This leaves us with the Division's more likely position, viz. that Rule 13d-3(b) is satisfied only where the actor intends to create some false appearance, albeit not necessarily a false appearance of non-ownership. But false appearance of what? The goal of Section 13(d) "is to alert the marketplace to every large, rapid aggregation or accumulation of securities ... which might represent a potential shift in corporate control." [204] In consequence, the natural reading is that the Division refers to a false appearance that no such accumulation is taking place. Put another way, Rule 13d-3(b) applies where one enters into a transaction with the intent to create the false appearance that there is no large accumulation of securities that might have a potential for shifting corporate control by evading the disclosure requirements of Section 13(d) or (g) through preventing the vesting of beneficial ownership in the actor. If that is what the Division means, then its proposed standard is more than satisfied in this case. TCI intentionally entered *551 into the TRSs, with the purpose and intent of preventing the vesting of beneficial ownership in TCI, as part of a plan or scheme to evade the reporting requirements of Section 13(d) and thus concealed precisely what Section 13(d) was intended to force into the open. And if this is not what the Division means, the Division's argument would be unpersuasive.[205] After all, there is not one word in Section 13(d) or in Rule 13d-3 that supports a requirement of an intent to create a false appearance of non-ownership if that term requires anything more than concealment of the sort of secret market accumulations that went on here. Undaunted, TCI argues that it did not trigger Rule 13d-3(b). It relies in part on a letter from Professor Bernard Black to the SEC in which the professor argued that "it must be permissible for an investor to acquire equity swaps, rather than shares, in part—or indeed entirely—because share ownership is disclosable under § 13(d) while equity swaps are not."[206] He bases this argument on the premise that "the underlying [i.e., evasive] activity must involve holding a position which is 'beneficial ownership' under the statute (Exchange Act § 13(d) or (g)), but would otherwise fall outside the rule—outside the SEC's effort to define the concept of beneficial ownership elsewhere in Rule 13d-3."[207] With respect, the Court finds the argument unpersuasive. As an initial matter, the SEC, in the Court's view, has the power to treat as beneficial ownership a situation that would not fall within the statutory meaning of that term. Section 23(a) of the Exchange Act [208] grants the Commission the "power to make such rules and regulations as may be necessary or appropriate to implement the provisions of this chapter for which [it is] responsible. ..." [209] The validity of a rule or regulation promulgated under such a grant of authority will be sustained so long as it is "reasonably related to the purposes of the enabling legislation."[210] The purpose of Section 13(d) is to alert shareholders of "every large, rapid aggregation or accumulation of securities, regardless of technique employed, which might represent a potential shift in corporate control."[211] Rule 13d-3(b) was promulgated to further this purpose by preventing circumvention of Rule 13d-3 with arrangements designed to avoid disclosure obligations by preventing the vesting of *552 beneficial ownership as defined elsewhere [212]—in other words, where there is accumulation of securities by any means with a potential shift of corporate control, but no beneficial ownership. As Rule 13d-3(b) therefore is reasonably related to the purpose of the statute, it is a perfectly appropriate exercise of the Commission's authority even where it reaches arrangements that otherwise would not amount to beneficial ownership. Second, while it may be debated whether the term "beneficial ownership" as used in the Williams Act is broader than or coextensive with the same language as used in Rule 13d-3(a),[213] one thing is quite clear. If Rule 13d-3(b) reaches only situations that involve beneficial ownership, then it reaches only situations that are reached by Rule 13d-3(a). Professor Black's view thus would render Rule 13d-3(b) superfluous. * * * * * * In sum, the Court finds that TCI created and used the TRSs with the purpose and effect of preventing the vesting of beneficial ownership in TCI as part of a plan or scheme to evade the reporting requirements of Section 13(d). Under the plain language of Rule 13d-3(b), it thus is deemed to be a beneficial owner of the shares held by its counterparties to hedge their short exposures created by the TRSs. B. Group Formation CSX contends that TCI and 3G violated Section 13(d) because they failed timely to disclose that they had formed a group. TCI and 3G contend that they did not form a group until December 12, 2007, and therefore satisfied their disclosure obligations when they filed a Schedule 13D on December 19, 2007.[214] Section 13(d)(3) provides that "[w]hen two or more persons act as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of securities of an issuer, such syndicate or group shall be deemed a `person' for the purposes of this subsection."[215] The existence of a group turns on "whether there is sufficient direct or circumstantial evidence to support the inference of a formal or informal understanding between [members] for the purpose of acquiring, holding, or disposing of securities."[216] Group members need not "be committed to acquisition, holding, or disposition on any specific set of terms. Instead, the touchstone of a group within the meaning of Section 13(d) is that the members combined in furtherance of a common objective."[217] In *553 this respect, an allegation that persons have formed a group "is analogous to a charge of conspiracy" in that "both assert that two or more persons reached an understanding, explicit or tacit, to act in concert to achieve a common goal."[218] The requisite agreement "may be formal or informal, and need not be expressed in writing."[219] The likelihood that any agreement in this case would be proved, if at all, only circumstantially is perhaps greater than usual because the parties went to considerable lengths to cover their tracks.[220] The Court already has made detailed findings concerning the defendants' activities and motives throughout the relevant period. The most salient points are summarized and, to a large extent, conveniently depicted on the timeline included in Appendix 2:[221] • TCI and 3G have had a close relationship for years, in part because 3G's Synergy Fund is an investor in TCI. • January 2007—Hohn and Behring discuss TCI's investment in CSX, including its approximate size. • February 2007—3G begins buying CSX shortly after Behring's January conversation with Hohn. • On or about February 13, 2007—Hohn speaks to his "friend Alex" Behring about CSX as a result of market excitement regarding CSX attributable in whole or part to 3G's heavy buying. • At about the same time, Hohn begins tipping other funds to CSX, which continues for some time. This is an effort to steer CSX shares into the hands of like-minded associates. • March 29, 2007—Amin and Behring meet. • March 29, 2007—3G resumes CSX purchases after hiatus. • March 29, 2007 through April 18, 2007—TCI increases its overall (shares plus swaps) position by 5.5 million shares, or 1.2 percent of CSX. 3G increases its position by 11.1 million shares, or 2.5 percent of CSX. • August to September 2007—Hohn becomes concerned about possible reregulation. Both 3G and TCI reduce their CSX exposures, although 3G to a proportionately greater extent than TCI. • Late September—October 2007—TCI tells D.F. King it probably will mount proxy contest. Hohn and Behring meet on September 26, 2007. Both TCI and 3G resume increasing their positions in the wake of the meeting. Both begin looking for director nominees. *554 These circumstances—including the existing relationship, the admitted exchanges of views and information regarding CSX, 3G's striking patterns of share purchases immediately following meetings with Hohn and Amin, and the parallel proxy fight preparations—all suggest that the parties' activities from at least as early as February 13, 2007, were products of concerted action notwithstanding the defendants' denials. Defendants nevertheless argue strenuously that they did not form a group until December 2007. Perhaps their most significant point is the assertion that 3G's sale of 40 percent of its holdings in August to September 2007 is inconsistent with concerted action because TCI did not act accordingly. But the argument ultimately is unpersuasive for at least two reasons. First, while it is true that TCI did not reduce its exposure by a like proportion (40 percent), TCI and 3G in that period shared misgivings about being as heavily exposed to CSX as they then were. TCI also reduced its exposure, albeit by a smaller percentage. The difference may be characterized as static. Moreover, what is most striking about this period is not that the two entities reduced their exposure asymmetrically. It is that 3G began increasing its exposure again less than a week after TCI decided to launch a proxy fight and on precisely the same day that Amin and Behring met—September 26, 2007. In other words, the parties shared misgivings in August-September when they were reducing their positions, but they got back on the track, so to speak, that they had been on previously by late September. Second, even assuming, for the sake of argument, that 3G's August-September sales were, in whole or in part, not within the mutual contemplation of the defendants, that would not necessarily foreclose a finding that they acted as a group. Coconspirators and members of cartels act on their own from time to time. While this is a fact entitled to be considered in determining whether an agreement existed and, if so, its terms and duration, the weight to be given to it depends upon the circumstances.[222] Defendants rely heavily also on the Court's bench opinion in Hallwood Realty Partners, L.P. v. Gotham Partners, L.P.[223] and, in particular, on its observations that relationships and communications among people and parallel investments in the same company, even where coupled with a motive to avoid discovery, do not necessarily require the conclusion that the actors formed a group. That of course is true. Equally true, however, is that these and other factors all are relevant to the question.[224] Each case presents the issue whether the trier of fact is persuaded by a preponderance of the evidence that the defendants before it formed a group. Each turns on its own facts. So Hallwood Realty does not decide this case, although it certainly is pertinent. In the last analysis, the question comes down to whether this trier of fact, having considered all of the circumstantial evidence *555 e—including the frequent lack of credibility of Hohn, Amin, and Behring and the inferences to be drawn therefrom—is persuaded that TCI and 3G formed a group with respect to CSX securities earlier than they claim. It finds that they did so no later than February 13, 2007. C. Alleged Schedule 13D Deficiencies CSX contends that the TCI-3G Schedule 13D was materially false and misleading because it (1) failed accurately to disclose their beneficial ownership of CSX common stock by falsely disclaiming beneficial ownership of the shares referenced in the swaps, (2) misrepresented the date of group formation and the beneficial ownership of the group's holdings, (3) failed to disclose information concerning contracts, arrangements, understandings, or relationships among group members and others, and (4) failed to disclose plans or proposals as to CSX's business or corporate structure. 1. Legal Standard A beneficial owner of greater than 5 percent of a class of any equity security is required to disclose, within ten days of acquiring that position, the information contained in Section 13(d)(1)(A)—(E) on a Schedule 13D.[225] "A duty to file under [Section] 13(d) creates the duty to file truthfully and completely." [226] Section 13(d) is violated only to the extent that any misstatement or omission is material, viz. "there is a substantial likelihood that a reasonable shareholder would consider it important in making an investment decision." [227] 2. Beneficial Ownership CSX contends that defendants' Schedule 13D is materially misleading because it (1) fails to include the shares referenced in the TRSs in the aggregate of shares beneficially owned and (2) disclaims beneficial ownership over those shares. Whether because TCI and 3G beneficially own those shares under Rule 13d-3(a), which the Court does not decide, or because they are deemed to beneficially own them under Rule 13d-3(b), as the Court has held, the 13D in fact was misleading. Nevertheless, the 13D disclosed the entirety of defendants' position in CSX and the manner in which it was held. It therefore was not materially so. In any case, the facts now are widely disseminated. 3. Group Formation CSX asserts that the Schedule 13D is materially misleading because defendants fail to disclose (1) the correct date on which the group was formed, and (2) an accurate number of shares beneficially owned by the group. The latter contention fails for the reason discussed above. And although the failure to file a Schedule 13D disclosing the existence of a group within ten days of its formation violated Section 13(d), the information that was material when the Schedule 13D belatedly was filed was the existence of the group, not the date of its formation. No reasonable investor, aware of the existence of a group, would find the *556 date on which the group was formed to be important in making an investment decision.[228] 4. Contracts, Arrangements, Understandings, or Relationships Item 6 of Schedule 13D mandated disclosure of any contracts, arrangements, understandings, or relationships with respect to any CSX securities. CSX contends that defendants failed to disclose material terms of their swap agreements, the number of shares referenced in each, and the aggregate number of shares referenced in all of their swaps, and failed to file the swap agreements under Item 7. Moreover, CSX asserts that 3G failed to disclose the material terms of its credit default swaps. Defendants disclosed that (1) they had swaps and the counterparties to those swaps, (2) the aggregate percentage of shares that were referenced in those swaps, and (3) 3G had credit default swaps. Moreover, they disclosed in Item 5 that they had calculated the percentages of their holdings based on the assumption that CSX had 420,425,477 shares outstanding.[229] While defendants might have disclosed more, what they omitted was not material. Further, assuming arguendo that defendants should have included the actual swap agreements in Item 7, their failure to do so was de minimis.[230] 5. Plans or Proposals The statement in the 13D that defendants "originally acquired Shares for investment in the ordinary course of business because they believed that the Shares, when purchased, were undervalued and represented an attractive investment opportunity"[231] was accurate in a limited sense but was false and misleading because it misrepresented the fact that TCI intended from the outset to bring about changes in the policies and, if need be, management of CSX. Nevertheless, defendants' present plans and intentions are plain from the additional paragraphs in Item 4 and the letters attached as Exhibits 2 and 3 and incorporated by reference into Item 4. In light of these disclosures, the false statement concerning defendants' reasons for originally acquiring shares therefore would be unlikely to have any significant impact on shareholders.[232] The misstatement therefore is not material. II. Section U(a) CSX contends that defendants made materially false and misleading statements in their preliminary and definitive proxy statements filed on March 10, April 15, and April 28, 2008,[233] (collectively the "Proxy Filings") in violation of Section 14(a) of the Exchange Act [234] and Rule 14a-9 thereunder.[235] Specifically, it asserts that defendants (1) failed to disclose the true extent of their beneficial ownership of CSX shares of common stock by *557 falsely disclaiming beneficial ownership of shares associated with TRSs, (2) misrepresented the date upon which the TCT-3G group was formed and the number of shares it beneficially owned, (3) failed adequately to disclose the contracts with swap counterparties, (4) misrepresented TCI's position with respect to a settlement of the proxy fight, and (5) set forth a false two-year history of the insurgents' respective transactions in CSX securities because they failed properly to disclose the swap transactions. Section 14(a) makes it unlawful to solicit proxies "in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." [236] Rule 14a-9 prohibits the solicitation of proxies "containing any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading." [237] A fact is material in a proxy solicitation "if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote."[238] As an initial matter, CSX's first three bases for contending that the Proxy Filings are materially false and misleading mirror the challenges it levied against defendants' Schedule 13D filing. They fail for the same reason. CSX next asserts that TCI's statements that it "made many concessions with the hope of being able to reach an amicable resolution with CSX that would avoid a proxy contest" and, during the January 2008 negotiations, "indicated willingness to sign a one year stand-still agreement"[239] were materially false and misleading. It contends that TCI (1) mischaracterizes Mr. Hohn's approach to the negotiations and (2) fails to mention that Mr. Hohn expressed willingness to enter into a standstill agreement only after negotiations were terminated. None of these statements is materially false or misleading. TCI did make concessions during negotiations, a fact demonstrated by Mr. Ward's notes,[240] notwithstanding Mr. Hohn's original position that he wanted all five of his candidates seated on the board. Moreover, although it is true that Hohn expressed willingness to agree to a standstill only after negotiations had terminated, it is not clear that he knew they had been terminated or that they could not have been resuscitated by such a concession. Finally, CSX contends that TCI failed to disclose its history of swap transactions over the preceding two years. Item 5(b)(1)(vi) of Schedule 14A requires that the filing party "[s]tate with respect to all securities of the registrant purchased or sold within the past two years, the dates on which they were purchased or sold and the amount purchased or sold on each such date."[241] This does not require disclosure of swap transactions. Notwithstanding that fact, both 3G and TCI disclosed the *558 swap agreements in which they were counterparties.[242] Accordingly, defendants made no materially misleading statements or omissions in its Proxy Filings and therefore are not in violation of Section 14(a) or Rule 14a-9. III. Section 20(a) Section 20(a) of the Exchange Act provides: "Every person who, directly or indirectly, controls any person liable under any provision of [the Exchange Act] or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action."[243] CSX claims that Messrs. Hohn and Behring are jointly and severally liable for the violation of Sections 13(d). It is undisputed that Messrs. Hohn and Behring, respectively, controlled these entities. The only possible remaining question as to their personal liability relates to their individual culpability. There is a lively debate in this Circuit as to whether culpable participation is an element of a plaintiffs prima facie case under Section 20(a) or, instead, whether lack of culpability is an affirmative defense that must be pleaded and proved by a controlling person in order to escape liability for violations, by a controlled person. This Court holds the latter view,[244] which in this case is fatal to the individual defendants because they have neither pleaded nor proved the affirmative defense. In this case, however, the controversy is beside the point. CSX would prevail on this point even if it bore the burden of proving culpable participation. Hohn was involved in the day-to-day oversight of the swap agreements from the beginning of TCI's investment in CSX. His focus included ensuring that TCI did not push any counterparty across the five percent reporting threshold. He engaged in discussions with Behring regarding TCI's investments and precipitated the conversation on or about February 13 by which— and probably during which—TCI and 3G formed a group regarding CSX. He was responsible for making a filing under the HSR Act in which TCI said that TCI "intend[ed] to try to influence management in how the company is run," [245] and he signed the October 16 letter to the CSX board.[246] Hohn signed also the Schedule 13D filed on December 19, 2007.[247] Behring similarly controlled the day-to-day investment activities of 3G. He spoke with TCI frequently and formed a group with Hohn. He attempted at various times to meet with CSX management and signed a letter to them indicating that 3G had made a Hart-Scott-Rodino filing.[248] He met with Amin on several occasions, during which time the two spoke about their respective investment plans for their TCI holdings and then directed purchases or *559 sales to be made thereafter. Behring also signed the Schedule 13D. In all the circumstances, Hohn and Behring quite plainly induced the Section 13(d) violations. Hohn nevertheless argues that he relied upon the advice of counsel and therefore acted in good faith.[249] The argument relies exclusively on his trial testimony that TCI retained counsel before it made investments, followed their advice as to what was permissible, and was "aware that if you held more than 5 percent of a company in physical shares, ... then derivative positions where you had economic interests but no voting benefit had to also be disclosed."[250] The implication is that he was advised that TCI was not obliged to disclose its derivative position before becoming the beneficial owner of more than 5 percent of the physical shares. The argument, however, is not appropriately considered and in any case unpersuasive. During pretrial discovery, CSX sought disclosure, including production of documents, concerning the legal advice that TCI had obtained. TCI and Hohn responded by asserting the attorney-client privilege to block disclosure.[251] CSX objects to their now relying on the belatedly and incompletely disclosed advice of counsel. The Court agrees with CSX. Having blocked discovery of the existence and nature of any legal advice it sought, Hohn will not now be heard to assert that his actions were consistent with the advice of counsel and therefore in good faith.[252] In any case, Hohn's attempt to rely on the advice of counsel is not convincing given that he has failed to offer evidence sufficient to permit the Court to find that TCI fully disclosed all material facts to counsel, that any failure to do so did not make Hohn's reliance unreasonable, and that Hohn and TCI conformed their actions in all respects to the advice they received. In fact, Hohn testified at his deposition that TCI did not even ask counsel whether it needed to disclose its swaps because it thought it already knew the answer.[253] Accordingly, the Court finds that Hohn and Behring are jointly and severally liable for the violations of Section 13(d). IV. Notice of Proposed Director Nominee and Bylaw Amendment As noted, TCI on January 8, 2008, submitted to CSX a Stockholder Notice of Intent to Nominate Persons for Election as Directors in which it proposed its slate of candidates for the board. Later in January, *560 it sent two supplemental notices regarding its intent to propose an amendment of the bylaws to allow holders of 15 percent or more of all outstanding CSX shares to call a special meeting for any purpose permissible under Virginia law. The January 8 notice,[254] which in this respect was incorporated into the supplemental notices,[255] avowed that TCI beneficially owned 8.3 percent of CSX's shares, a figure that did not include the shares referenced under its TRSs. Article I, Section 11(a)(i), of CSX's bylaws provides in substance that any shareholder of record as of the appropriate date may nominate persons for election and propose business to be considered by the shareholders provided, in relevant part, that the shareholder "complies with the notice procedures set forth in ... Section 11." [256] Section 11(c)(i) makes clear that "[o]nly such persons who are nominated in accordance with the procedures set forth in ... Section 11 shall be eligible ... to serve as directors and only such business shall be conducted at a meeting of shareholders as shall have been brought before the meeting in accordance with the procedures set forth in ... Section 11."[257] Section 11(a)(ii) states in pertinent part that a shareholder's notice: "shall set forth ... (C) as to the shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made ... (2) the class and number of shares of capital stock of the Corporation that are owned beneficially and of record by such shareholder and such beneficial owner."[258] CSX's position is simplicity itself. Defendants, it argues, beneficially owned the shares referenced by their TRSs. Accordingly, it argues, defendants' statement in the notice that they beneficially owned 8.3 percent of CSX's shares did not accurately disclose their beneficial ownership in compliance with the bylaws in consequence of which the notice was deficient. The response to this argument is equally simple. Assuming for purposes of discussion that the defendants were beneficial owners of the shares referenced by their TRSs within the meaning of Rule 13d-3, and assuming further that the definition of the term "beneficial owner" in the bylaws is coextensive with that in the Rule, the fact remains that the defendants' swap positions were disclosed in Annex E to the notice. Under Virginia law, corporate bylaws are construed in accordance with principles used in construing statutes, contracts, and other written instruments.[259] The essential purpose of the notice provision having been satisfied by the defendants' disclosure of their interest, they have complied with its requirements in substance if not in all trivial particulars.[260] That is all that was required. Moreover, it ill behooves CSX, which asks the Court to focus on substance rather than form in *561 determining whether defendants' swaps gave them beneficial ownership of the referenced shares held by their counterparties, to exalt form over substance in construing defendants' notice by disregarding the fact that defendants disclosed the swap positions, albeit without characterizing those positions as giving them beneficial ownership. This is especially so because CSX drafted its own bylaw and thus could have defined beneficial ownership in a manner that would have required the precise disclosure that it here contends was required. Accordingly, CSX's attack on defendants' notice is without merit. V. Counterclaims Defendants have asserted counterclaims against CSX and Ward. They allege that CSX's proxy solicitations are materially false and misleading in violation of Section 14(a) and that Ward is liable for this violation under Section 20(a). They claim also that a by-law amendment adopted by the CSX board on February 4, 2008 (the "Amendment") violates Virginia law. They seek declaratory and injunctive relief. A. Section U(a) Claim Section 14(a) of the Exchange Act prohibits the solicitation of proxy materials in contravention of rules and regulations prescribed by the SEC.[261] Rule 14a-9 prohibits proxy solicitation: "by means of any proxy statement ... containing any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading. ..."[262] Thus, an "omission of information from a proxy statement will violate [Section 14(a) ] if either the SEC regulations specifically require disclosure of the omitted information in a proxy statement, or the omission makes other statements in the proxy statement materially false or misleading."[263] "In the context of a proxy solicitation, a statement is material `if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.'"[264] 1. Target Awards Under the Long Term Incentive Plan Defendants argue that the CSX proxy statement is incomplete and misleading in its disclosure of the long term incentive compensation awarded to executives and employees. On May 1, 2007, CSX's compensation committee submitted and the board adopted the CSX 2007-2009 Long Term Incentive Plan ("LTIP"), which set target awards for covered executives and employees. The target awards are measured in CSX shares. They are not grants of shares, but establish the possibility of future compensation. Actual awards may be adjusted depending, inter alia, on performance. The target award, measured in CSX shares, however, serves as the benchmark for any adjustments. The value of CSX shares on the date of the target awards therefore affects the range of potential actual awards. *562 The CSX compensation committee and the board possessed material non-public information at the time it set the target awards.[265] However, the board did not coordinate setting the target awards with the disclosure of material non-public information.[266] The CSX proxy describes the timing of the performance grants as follows: "Beginning with the 2006-2007 and 2006-2008 [LTIP], the [Compensation] Committee adopted the practice of granting target awards at the May meeting of the Committee, which is the first regular meeting following receipt in April by the Committee and the Board of the Company's business plan for the upcoming three-year period. ..."[267] Defendants argue that this is inadequate because it does not disclose that the company set the performance grants while in possession of material non-public information. SEC rules require that a proxy statement "explain all material elements of the registrant's compensation of the named executive officers," including the information specified in Item 402 of Regulation S-K.[268] Regulation S-K explains that "[h]ow the determination is made as to when [compensation] awards are granted, including awards of equity-based compensation," may be a material element of compensation.[269] An SEC release further explains that under these regulations, a company should disclose if it had or intends to have "a program, plan or practice to select option grant dates ... in coordination with the release of material non-public information...."[270] Thus, if CSX had a program, plan or practice to coordinate the timing of the grants with the release of material non-public information, that practice should have been disclosed in the proxy materials. But there is no convincing evidence that CSX had such a practice. Furthermore, disclosure of the fact that the compensation committee possessed material non-public information at the time they set the target awards is not necessary to make other statements not false or misleading. 2. The CSX Board's Compliance With CSX Insider Trading Policy Defendants argue that the CSX proxy statement is materially misleading because it fails to disclose that the board violated the company's insider trading policy. *563 CSX's policy provides that "[n]o CSX officer, employee or director ... may purchase, sell or otherwise conduct transactions in any CSX security while he or she is aware of material nonpublic information about CSX."[271] It further prohibits any officer, employee, or director from engaging in transactions in CSX securities during certain "blackout periods." [272] The policy defines "CSX security" broadly to include "any derivative instrument (including, but not limited to contracts, swap agreements, warrants and rights), the value of or return on which is based on or linked to the value of or return on any CSX security."[273] As described above, on May 1, 2007, the compensation committee and the board set the target awards for the 2007-2009 LTIP while in possession of material non-public information. In addition, on December 12, 2007, the board granted 5,000 shares of common stock to each non-employee director,[274] pursuant to the CSX Stock Plan for Directors, which allows directors to grant themselves shares on a discretionary basis at any time and upon such terms as the board deems fit.[275] The size and timing of this grant was consistent with discretionary grants made in prior years, and did not depend on the market value of the shares on the day of the grant.[276] The board's December 12, 2007, grants were made during a blackout period as defined by the insider trading policy. Defendants argue that the board violated CSX's insider trading policy by (1) setting the 2007-2009 LTIP target awards while in possession of material non-public information, and (2) making discretionary share grants to directors during a blackout period. Defendants argue that the proxy statement is materially misleading because it does not disclose these violations. The Court is not persuaded that the insider trading policy, which by its terms applies to transactions of an officer, employee or director, applies also to transactions of the board when it acts as a board. Furthermore, assuming arguendo that these transactions violated the insider trading policy, the defendants do not articulate how the omission of this fact renders any statement in the proxy statement materially false or misleading. It is not sufficient that defendants characterize a violation of the insider trading policy as a breach of the board's fiduciary duty. "[N]o general cause of action lies under § 14(a) to remedy a simple breach of fiduciary duty."[277] In any case, the proxy statement discloses the facts and circumstances of these transactions. Defendant's complaint is merely that CSX should have described the transactions as violations of its insider trading policy. But the disclosure rules do not oblige CSX to describe these transactions in pejorative terms.[278] *564 The Court is not persuaded that the transactions by the board violated CSX's insider trading policy. But assuming, arguendo, that these transactions constitute breaches of the board's fiduciary duties, the Court concludes that the CSX proxy statement is not materially false or misleading by its failure to disclose those breaches. 3. CSX's Belief that TCI Seeks Effective Control Defendants argue that CSX's statements that it believed that TCI was seeking "effective control" of the board [279] are materially false and misleading. TCI has nominated only five candidates for election to a twelve-member board.[280] Although this would not be a majority, TCI told CSX that it would use this position to influence the work of the board.[281] Based on this and other experiences with TCI,[282] CSX honestly believed that TCI was seeking effective control.[283] Statements of opinion may be materially false and misleading if the opinion is both objectively and subjectively false.[284] The defendants argue that CSX could not have believed that TCI was seeking effective control of the board because TCI has nominated only a minority slate of directors. Thus, the defendants seek to define effective control as being nothing less than a majority of the board. This is not the natural implication of the phrase as used by CSX in these circumstances.[285] Indeed, the February 14, 2008, letter acknowledges specifically that TCI had nominated only a minority slate before concluding that TCI sought effective control. Because effective control often is understood to mean something considerably less than a majority position, there is no conflict between CSX's knowledge that TCI has nominated a minority state and its opinion that TCI hopes to use that position to exert effective control. Accordingly, the Court concludes that these statements are not materially false or misleading. 4. TCI's Proposal Regarding Capital Expenditures Defendants argue that Michael Ward's statement [286] that "one hedge fund *565... actually demanded that CSX freeze investment in its rail system" is materially false and misleading. It has suggested, it says, only that CSX freeze all growth investment pending congressional action on a re-regulation bill.[287] CSX argues that Ward's statement is true because Ward believed and continues to believe that it is true. But Ward's belief is not relevant—this statement is one of fact, not opinion. Ward's statement inaccurately represents that TCI suggested that CSX freeze all as opposed to a particular type of investment. But this does not get defendants where they want to go. In order to violate Rule 14a-9, a misleading statement must be made with respect to a material fact. The relevant question therefore is whether there is "a substantial likelihood that a reasonable investor would consider [TCI's position on non-growth investment] important in deciding how to vote."[288] Whether this is a material fact in the context of this proxy fight is a close question. One of the matters that shareholders will be asked to decide is whether to vote for the minority slate nominated by TCI. The directors' recommendation about how to vote is likely to be material to such a decision, and the directors' reasons for a recommendation also may be material.[289] When the Supreme Court evaluated the materiality of false statements in Virginia Bankshares, it observed that "[n]aturally... the shareowner faced with a proxy request will think it important to known the directors' belief about the course they are recommending and their specific reasons for urging the stockholders to embrace it."[290] An argument for finding materiality in this case is that Ward, by describing TCI's proposal inaccurately, was able to make the board's recommendation to vote against the TCI slate more persuasive. Faced with a somewhat similar circumstance, the D.C. Circuit concluded that it would be intolerable to allow someone to claim that a fact is immaterial after relying on that fact to make a decision appear well informed.[291] While such an outcome might be troubling, it does little to explain whether a fact is material. A trivial fact does not become material merely because it is related to a material fact. For example, if a false reason is given for a decision but the false reason is trivial, then it is unlikely that it did much to make the decision appear well reasoned and it remains a trivial fact. In the circumstances of this case, the Court is not persuaded that there is a substantial likelihood that a reasonable investor would consider this important in deciding how to vote. Accordingly, Ward's statement did not violate the law. 5. The CSX-TCI Negotiations In a March 17, 2008, CSX press release, CSX's lead director, Mr. Kelly is quoted as saying: "In an effort to avoid the disruption *566 and expense of a proxy contest [CSX has] spoken with TCI on a number of occasions in an attempt to find common ground." [292] Defendants claim this statement is materially false and misleading. The CSX board asked Kelly, as presiding director of the CSX board, to meet with Hohn to assess whether a proxy contest could be avoided.[293] Early in the negotiations, Ward encouraged Kelly to end the negotiations and kill any agreement.[294] But the CSX board asked Kelly to continue negotiations with Hohn, which he did.[295] As the negotiations proceeded, both sides discussed possible concessions.[296] Ultimately, the negotiations ended without an agreement.[297] Defendants claim that CSX had no intention of finding common ground with TCI, and that its statement to the contrary therefore is materially false and misleading. TCI provides no evidence to support this claim. Defendants focus on Ward's intention to end the negotiations and CSX's post-negotiation strategy to win the proxy contest,[298] but neither of these facts suggest that CSX approached the negotiations in January with no intent to find common ground. There is no evidence that CSX had no intention of finding common ground with TCI. Defendants, therefore, cannot establish that Kelly's statement is materially false or misleading. 6. CSX's Purposes in. Bringing this Lawsuit CSX's March 17, 2008, press release quotes Mr. Ward as saying that "[CSX] filed this suit ... to ensure that all of our shareholders receive complete and accurate information." [299] Defendants argue that this statement is materially false and misleading. Speaking bluntly, this contention does not warrant a serious response. If the American people do not know that not every protestation of high motive, made in a contested election, can be taken literally, there is not much hope for any of us. B. Declaratory Relief Regarding By-Laws Amendment On February 4, 2008, the CSX board adopted an amendment to the CSX bylaws under which shareholders of record representing at least fifteen percent of the outstanding shares of CSX's stock may call a special meeting for certain limited purposes.[300] The Amendment does not allow special meetings to be called to elect or remove directors.[301] CSX management is seeking shareholder ratification of the *567 Amendment at the upcoming shareholder meeting.[302] CSX's Articles of Incorporation do not limit the circumstances in which directors may be removed.[303] Its shareholders thus have the power to remove directors with or without cause,[304] although "[a] director may be removed ... only at a meeting called for the purpose of removing the director."[305] Defendants argue that the Amendment is void because it prevents shareholders from calling a special meeting to remove a director without cause and therefore prevents the shareholders from exercising their right to remove directors without cause. This argument is flawed. First, Virginia law does not guarantee shareholders the right to call special meetings.[306] Second, the Amendment does not change shareholders' ability to call special meetings to remove directors—they were not able to call a special meeting to remove directors before its adoption. Finally, although the Amendment does not allow shareholders to call a special meeting for the purpose of removing a director, others are authorized to do so.[307] VI. Relief CSX seeks several forms of injunctive relief, some of it far reaching. In considering its request, it is well to bear in mind that courts in this circuit have found an implied private right of action for issuers—such as plaintiff—to bring claims for injunctive relief for violations of Sections 13(d) and 14(a) [308] on the premise that the "congressional purpose was furthered by providing issuers with the right to sue `to enforce [the] duties created by [the] statute.'" [309] Allowing an issuer to seek injunctive relief "furthers the object of § 13(d) by increasing honest disclosure for the benefit of investors without placing incumbent management in a stronger position than aspiring control groups."[310] This principle informs the scope of relief available to an issuer-plaintiff like CSX. In private actions under the securities laws, relief is "determined according to traditional principles. Thus, [CSX] must succeed on the merits and `show the absence of an adequate remedy at law and irreparable harm if the relief is not granted.'"[311] Further, to obtain an injunction *568 based on a violation of Section 13(d), the irreparable harm must be to those interests which that section seeks to protect.[312] A. Success on the Merits The Court has found that the defendants violated Section 13(d) in that (1) TCI did not file the required disclosure within 10 days of acquiring beneficial ownership in 5 percent of CSX shares, and (2) TCI and 3G failed to file the required disclosure within 10 days of forming a group.[313] But the Court has not found that the defendants' Schedule 13D disclosure is false, misleading, or otherwise inadequate as to a material fact. Nor has the Court found that the defendants violated Section 14(a) or Rule 14d-9. Accordingly, injunctive relief is evaluated in light of the two 13D violations. The fact that the Court has found no proxy rule violation or material misstatement or omission in the Schedule 13D that belatedly was filed disposes of several of CSX's prayers for relief. There is no basis for ordering corrective disclosure or for voiding proxies that defendants have obtained. Thus, the only remedies within the range of reasonable consideration are sterilization of the shares that defendants acquired during the period when they were out of compliance with Section 13(d), which amounts to about 6.4 percent of CSX's outstanding shares,[314] and an injunction against future disclosure violations. B. Share Sterilization Plaintiff seeks an injunction prohibiting the voting of any CSX shares owned by the defendants or members of their group at the 2008 annual meeting. It contends that this relief is warranted for two reasons. CSX's shareholders, they maintain, would be harmed irreparably in its absence. In any case, they argue, sterilization of this stock is required to avoid permitted defendants to retain the fruits of their violations and to deter future violations. 1. Irreparable Harm CSX's irreparable injury argument sweeps too broadly. It offers no persuasive reason to prevent defendants from voting shares that they acquired before they breached any disclosure obligation, so the only proper focus is on the 6.4 percent of CSX shares that they purchased during the period in which they had not satisfied their disclosure obligations. Moreover, any present shareholders who have purchased *569 for the first time after defendants filed their 13D knew what they were getting into and could not be injured in any cognizable way by allowing defendants to vote all their shares. Those current shareholders who have held shares throughout the period, however, may be in a different position. Defendants' actions may have contributed to creating a corporate electorate that is materially different today than it was before defendants made those purchases. Those who are content with present management and unconvinced by defendants' blandishments may be in a weaker position than they might have occupied had defendants made full and timely disclosure.[315] That all of the facts now have been disclosed does not alter this prospect. So the question is whether foreclosing defendants from voting the shares they acquired during their violations would avert irreparable injury that otherwise would occur. In Rondeau v. Mosinee Paper Corp.,[316] the Supreme Court addressed the irreparable harm that a private plaintiff must show in order to obtain injunctive relief for a Section 13(d) violation. Rondeau did not file a Schedule 13D until three months after he had acquired more than 5 percent of the issuer's outstanding stock. He acquired an additional 2.5 percent of the outstanding stock before disclosing his position. Although Rondeau admitted violating Section 13(d), the district court found no irreparable harm and denied injunctive relief.[317] The Court of Appeals reversed. It found irreparable harm because Mosinee Paper "`was delayed in its efforts to make any necessary response to' [Rondeau's] potential to take control." In any case, it concluded, Mosinee "`need not show irreparable harm as a prerequisite to obtaining permanent injunctive relief. ..."' It remanded with instructions to enjoin Rondeau from voting the shares acquired while in violation of Section 13(d). "It considered 'such an injunctive decree appropriate to neutralize [Rondeau's] violation of the Act and to deny him the benefit of his wrongdoing.'"[318] The Supreme Court reversed. In evaluating the claimed harm, it focused on whether "the evils to which the Williams Act was directed ha[d] occurred. ..." It concluded that "[o]n this record there is no likelihood that [Mosinee's] shareholders will be disadvantaged should petitioner make a tender offer, or that [Mosinee] will be unable to adequately place its case before them should a contest for control develop."[319] Rondeau does not foreclose the possibility relief such as sterilization for Section 13(d) violations, but it does make clear that a prerequisite to such relief is a showing of irreparable harm. Moreover, the determinative question is whether, absent an injunction, there would be irreparable harm to the interests which Section 13(d) seeks to protect—viz. "alert[ing] investors to potential changes in corporate control."[320] In consequence, private plaintiffs usually are unable to establish an irreparable *570 harm once the relevant information has been made available to the public. Second Circuit cases go so far as to suggest, in dicta, that irreparable harm can not be established once corrective disclosure is made.[321] Nonetheless, the Second Circuit in Treadway left open the possibility of finding irreparable harm despite corrective disclosure, observing that it would not rule out the possibility that "`disenfranchisement or divestiture may be appropriate'" where a defendant has obtained "`a degree of effective control' as a result of purchases made before it has complied with § 13(d). ..." [322] It did not resolve the issue, however, because it regarded the defendants' 31 percent holding of the outstanding shares as insufficient to confer "a degree of effective control." [323]Treadway thus stands for the proposition that acquisition of a 31 percent block, partially during a period of noncompliance with Section 13(d) is insufficient to threaten irreparable injury on the remaining shareholders because control has not passed at that level. It is questionable whether a bright line rule that appears to foreclose the existence of "a degree of effective control" in the absence of a stock holding larger than 31 percent is consistent with commercial realities. One need look no farther than Hohn's threat to Kelly that election of his slate of a minority of directors would permit him to render Ward's future "bleak" and be disruptive in the CSX boardroom [324] to see why that is so. Moreover, courts have recognized that minority shareholdings or board representation may confer a degree of control, at least in some circumstances.[325] But Treadway is the law of our Circuit, and this Court is obliged to follow it. Indeed, plaintiffs have cited no case, in or out of our Circuit, in which irreparable harm was found because a defendant had obtained a degree of effective control.[326] It necessarily follows that the alteration of the corporate electorate *571 arguably effected by defendants' actions, which did no more than increase its likelihood of prevailing in the current contest, cannot be regarded as irreparable injury that properly may be remedied by preventing the voting of the stock acquired While defendants were in violation of Section 13(d).[327] 2. Deterrence Other courts have suggested that relief beyond corrective disclosure is appropriate, at least in some circumstances, in order to deter violations.[328] In the main, they have done so in reliance on arguments made by the SEC in an amicus curiae brief to the First Circuit where the Commission suggested that, "in determining whether more than corrective disclosure is called for, [a court] should ... consider (1) whether a substantial number of shares were purchased after the misleading disclosures and before corrective disclosure, (2) whether the curative disclosure occurred simultaneously with or on the eve of a tender offer, and (3) whether the violation was egregious" [329] and argued that "[a]bsent a remedy beyond ordering corrective disclosure, a person will have little incentive to comply with the statute."[330] The difficulty with this argument is that it is foreclosed by Rondeau, where the Supreme Court rejected the contention that the relief ordered in that case was justified, notwithstanding the lack of threatened irreparable injury, by the "public interest" in enforcing the disclosure requirements.[331] "[T]he fact that [a plaintiff] is pursuing a cause of action which has been generally recognized to serve the public interest," it said, "provides no basis for concluding that it is relieved of showing irreparable harm and other usual prerequisites for injunctive relief." [332] While a footnote in Piper v. Chris-Craft Industries, Inc.,[333] decided two years after Rondeau, suggests that deterrence "possibly" is an appropriate consideration in formulating relief "with respect to the most flagrant sort of [securities law] violations which no reasonable person could consider *572 lawful," [334] this dictum is insufficient to overcome Rondeau's square holding that threatened irreparable injury is a sine qua non of the sort of relief that CSX seeks here.[335] Accordingly, this Court holds that a threat of irreparable injury is essential to obtain an injunction sterilizing any of defendants' voting rights and that plaintiff has failed to establish such a threat. Were the Court free as a matter of law, however, to grant such an injunction, whether on the basis that such relief is warranted to afford deterrence or on another basis, it would do so. C. Enjoining Further Disclosure Violations CSX seeks an injunction against further violations of the securities laws. The SEC is authorized by statute to seek such an injunction.[336] But it "must demonstrate that there is a substantial likelihood of future [securities] violations...."[337] In evaluating whether there is a substantial likelihood of future violations, a court considers "the fact that the defendant has been found liable for illegal conduct; the degree of scienter involved; whether the infraction is an `isolated occurrence;' whether defendant continues to maintain that his past conduct was blameless; and whether, because of his professional occupation, the defendant might be in a position where future violations could be anticipated."[338] Of course, when the SEC appears before the Court seeking an injunction against further violations, it "appears ... not as an ordinary litigant, but as a statutory guardian charged with safeguarding the public interest in enforcing the securities laws." [339] The SEC therefore is "relieved... of the obligation, imposed on private litigants, to show risk of irreparable injury or the unavailability of remedies at law."[340] CSX, a private litigant, however, must demonstrate a threat of irreparable injury to the interests which Section 13(d) seeks to protect.[341] 1. Probability of Future Violations In this case, defendants have committed two violations of Section 13(d) of the Exchange Act. Both failed to make a timely filing after forming a group. TCI failed to file within 10 days after being becoming, or being deemed to have become a beneficial *573 owner of more than 5 percent of CSX's shares. These violations were not products of ignorance. There is evidence that the use of derivatives such as those at issue here is "a standard technique [in the hedge fund industry] to avoid disclosure of these big stakes." [342] In any case, TCI deliberately evaded disclosure obligations. Both defendants were more than cognizant of the obligation to file promptly upon forming a group and, in this Court's view, knew full well, or recklessly disregarded the substantial likelihood, that they had formed a group, this notwithstanding Hohn's incantations and the lack of a formal written agreement. Both continue to maintain that their actions were blameless and, indeed, testified falsely in a number of respects, notably including incredible claims of failed recollection, to avoid responsibility for their actions. Both, moreover, are engaged in lines of endeavor in which future violations are far more than a speculative possibility. In all the circumstances, the Court finds a substantial likelihood of future violations. Defendants have sought to control CSX for over a year. As obstacles to control surfaced, they adapted their strategy for achieving control, making disclosures only when convenient to their strategy. Defendants' latest strategy for control will be tested at the annual shareholder meeting. And if this strategy is not successful, the Court perceives a substantial likelihood that the defendants would craft a new strategy for control without regard to their disclosure obligations. 2. Irreparable Injury The fact that future violations are probable absent an injunction is highly pertinent to the irreparable injury question. Defendants' past violations have advanced significantly the achievement of their objectives. They likely were able to acquire a larger position in CSX for a price lower than would have been required had all of the facts been disclosed as and when required. The motive for building on that position through concealment remains. The battle for CSX may not end with the June 25 annual meeting. Further Section 13(d) violations could allow defendants to increase their position to a point of working control. Remaining shareholders in that event would find themselves with shares in a corporation with a controlling shareholder and thus deprived of the opportunity to gain a control premium for their shares. Corrective disclosure could not remedy that harm because it would come too late. In any case, the legal remedy, if any, manifestly would be inadequate because it would be impossible to determine with any accuracy the price that the remaining shareholders could have realized if that fact that defendants were in the process of obtaining working control. A permanent injunction against future Section 13(d) injunctions therefore is appropriate.[343] Conclusion For the foregoing reasons, plaintiff is entitled to a permanent injunction restraining future violations of Section 13(d) of the Exchange Act and the rules thereunder. The counterclaims are dismissed. The Court has concluded that it is foreclosed as a matter of law from enjoining defendants *574 from voting the 6.4 percent of CSX's shares that they acquired between the expiration of to 10 days following the formation of the group no later than February 13, 2008 and the date of the trial. If, however, it were free to grant such relief, it would exercise its discretion to do so. Counsel shall notify the Court no later than 11 a.m. on June 12, 2008 whether an application will be made to this Court for relief pending appeal. In the event that they wish to do so, any application will be heard orally that day in Courtroom 12D at 2:15 p.m. SO ORDERED. Appendix 1 *575 *576 *577 *578 *579 *580 *581 *582 *583 NOTES [1] 17 C.F.R. § 240.13d-3(b). [2] Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 58-59, 95 S.Ct. 2069, 45 L.Ed.2d 12 (1975) (quoting S. REP. NO. 550, 90th Cong., 1st Sess., 3 (1967), U.S.Code Cong. & Admin.News 1968, p. 2811). [3] Id. at 61, 95 S.Ct. 2069 (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 88 L.Ed. 754 (1944)). [4] Docket item 1. [5] Docket items 26-27. [6] Docket item 9. [7] In addition to the findings set forth in this opinion, the Court adopts proposed findings 11.3-11.5, 11.17, 11.19-11.22, 12.2, 12.4-12.9, 13.2-13.5, and 13.7-13.10 set forth in docket item 62. [8] Expert Report of Marti G. Subrahmanyam ("Subrahmanyam Report") ¶ 62. [9] Id. [10] Id. [11] The terms of a plain vanilla TRS frequently follow a framework established by the International Swaps and Derivatives Association, Inc. ("ISDA"). The ISDA master agreement is "a standard form that ... includes basic representations and covenants," DX 149 (Partnoy Report) ¶ 46, that parties supplement with modifications to account for their specific interests. Subrahmanyam Report ¶ 68; DX 150 (Partnoy Surrebuttal) ¶ 20 n. 26. For example, counterparties may negotiate such terms as the reference obligation that underlies the agreement or the rights of each party to terminate the swap. It is these contract-specific terms "that determine the value of the transaction." Subrahmanyam Report ¶ 68. [12] Subrahmanyam Report, at 19. [13] The notional amount typically is the value of the referenced asset at the time the transaction is agreed and may be recalculated periodically. Subrahmanyam Report ¶ 63. The difference between the reference rate and the negotiated interest rate of the swap depends on (1) the creditworthiness of the two parties, (2) characteristics of the underlying asset, (3) the total return payer's cost of financing, risk, and desired profit, and (4) market competition. Id. ¶ 64. [14] Id. ¶ 63; DX 149 (Partnoy Report) ¶ 25. The payments occur on "refixing dates" that recur throughout the duration of the TRS as specified by the contract. [15] TCI's other counterparties are Credit Suisse Securities (Europe) Limited ("Credit Suisse"), Goldman Sachs International ("Goldman"), J.P. Morgan Chase Bank ("J.P. Morgan"), Merrill Lynch International ("Merrill Lynch"), Morgan Stanley & Co. International plc ("Morgan Stanley") and UBS AG ("UBS"). TCI's swap agreements can be found at PX 230 (TCI and Citigroup), PX 231 (TCI and Credit Suisse), PX 232 (TCI and Deutsche Bank), PX 233 (TCI and Goldman), PX 234 (TCI and J.P. Morgan), PX 235 (TCI and Merrill Lynch), PX 236 (TCI and Morgan Stanley), and PX 238 (TCI and UBS). 3G's swap agreement with Morgan Stanley can be found at PX 237. [16] An incidental consequence of their doing so is to enable them to generate additional revenue by lending the shares, for a fee, to short sellers. Subrahmanyam Report ¶¶ 65-66. [17] A notable exception would occur if the long party to the TRS became insolvent and thus unable to perform its obligation to hold the short party harmless against any decline in the value of the referenced security. [18] This decoupling of the economic and voting interests is discussed, among other places, in Henry Hu & Bernard Black, The New Vote Buying: Empty Voting and Hidden (Morphable) Ownership, 79 S. CAL. L.REV. 811 (2006). [19] Subrahmanyam Report ¶ 70. [20] DX 145 (Amin) ¶¶ 3-5, 10-11; DX 144 (Hohn) ¶¶ 8-9. Legacy contracts are "longterm contracts that have not been repriced to current market prices." DX 145 (Amin) ¶ 10. [21] PX 206. [22] Subrahmanyam Report Ex. C.1. [23] PX 267 (Munoz) ¶¶ 3-4; PX 133; PX 136. [24] Subrahmanyam Report Ex C.1. [25] PX 268 (Baggs) ¶¶ 5-6. The Court does not credit Amin's denial of any such statement. See DX 145 (Amin) ¶¶ 20-21. [26] PX 20, at TCI0159800-02. [27] Id. at TCI0159799. [28] Subrahmanyam Report Ex. C.1. [29] PX 37; PX 267 (Munoz) ¶ 8. Hohn indicates that he requested that Deutsche Bank analyze the LBO possibility as well. He places this request in early 2007. DX 144 (Hohn) ¶ 17. [30] PX 37, at TCI0153575. [31] PX 267 (Munoz) ¶¶ 8-9. [32] PX 268 (Baggs) ¶ 11; DX 145 (Amin) ¶ 30. [33] JX 6. Share repurchases often are made by companies facing control contests. [34] Subrahmanyam Report Ex. C.1. [35] 17 C.F.R. § 243.100 et seq. "In general terms, Regulation FD prohibits a company and its senior officials from privately disclosing any material nonpublic information regarding the company or its securities to certain persons such as analysts or institutional investors." SEC v. Siebel Sys., Inc., 384 F.Supp.2d 694, 696 (S.D.N.Y.2005). If the company makes selective disclosure of material nonpublic information, it must disclose the same information publicly. [36] PX 268 (Baggs) ¶ 12; PX 267 (Munoz) ¶ 10. The Court does not credit Amin's testimony that he did not speak to Baggs or Munoz at the conference. [37] PX 45; Tr. (Hohn) at 172-73. [38] PX 46. [39] PX 53; Tr. at 174-75, 189. [40] DX 144 (Hohn) ¶ 22. [41] See 15 U.S.C. § 18a. [42] PX 55; DX 145 (Amin) ¶ 34; DX 144 (Hohn) ¶ 21. [43] DX 10; DX 145 (Amin) ¶ 35. CSX asserts that it received such notice on March 15. See Tr. (Hohn) at 166. [44] An LBO of course would have afforded a different route to the big profit that TCI sought. [45] PX 57. [46] PX 65, at TCI0962472; PX 64. Hohn contends that Deutsche Bank approached TCI to market its various banking services and performed the LBO analysis for no compensation. DX 144 (Hohn) ¶ 17. [47] PX 269 (Fitzsimmons) ¶¶ 11-14; PX 267 (Munoz) ¶ 12. [48] PX 71. [49] PX 36; PX 75. Amin explained at trial that TCI sought only to determine whether Harrison was interested, but that it was not TCI's intention "to necessarily have him as CEO of CSX." Tr. (Amin) at 200. Assuming (but not finding) that to be so, the incident nevertheless would confirm the Court's view that TCI was determined to force changes in CSX's policies and, if need be, to bring about a change in control. [50] PX 83, at TCI0254261. [51] DX 145 (Amin) ¶ 37. By April 18, its combined economic exposure to CSX common, including both its directly owned shares and its swap position, reached 15.1 percent. Subrahmanyam Report Ex. C.1. [52] There is some disparity as to when the Form 10-Q actually became publicly available. The document is dated April 17, 2007, but the SEC notes that it was filed on April 18. See http://www.sec.gov/Archives/ edgar/data/277948/XXXXXXXXXXXXXXXXXX/ d10q.htm. The difference matters only insofar as it affects the analysis of TCI's April 18 swap and stock purchase activity. Notwithstanding this disparity, it is clear that TCI made no additional stock purchases after April 18, and engaged in only one swap unwind between April 19 and August 23. [53] DX 145 (Amin) ¶ 39; PX 268 (Baggs) ¶ 18; see PX 96. [54] PX 207; PX 268 (Baggs) ¶ 19 (noting that this "was the first instance in my experience of having investors calling about the outcome of a particular shareholder proposal."). [55] PTO ¶ 13; DX 145 (Amin) ¶ 42; DX 144 (Hohn) ¶ 27. [56] DX 145 (Amin) ¶ 43. [57] PX 116. [58] ISS is an organization that, among other things, advised institutional investors with respect to voting in proxy fights. See http:// www.issproxy.com/serve/index.html. [59] PX 117; PX 118. [60] PX 121, at CSX CORP 00007174. [61] PTO ¶ 15. [62] PX 137, at TCI0512741-42. [63] PX 128; Tr. (Behring) at 107. [64] PX 135, at TCI0955614. [65] PX 192; Tr. (Behring) at 136. [66] PX 139. [67] PX 140, at CSX CORP XXXXXXXX-XX. [68] Id. at CSX CORP 00007192. [69] Id. at CSX CORP 00007193. [70] DX 52, at CSX_00001013-14. [71] DX 144 (Hohn) ¶ 30; DX 145 (Amin) ¶¶ 46-47. [72] PTO ¶ 31; DX 61. [73] DX 64. [74] DX 146 (Behring) ¶¶ 16-19. [75] Id. ¶ 21. [76] PTO ¶ 17. [77] Its denial of this at trial was not credible. [78] PX 206; Subrahmanyam Report Ex. C.2. Behring asserted in his witness statement that this purchase was made on February 8, see DX 146 (Behring) ¶ 22, but agreed at trial that it actually occurred on February 9. Tr. (Behring) at 97, 140. [79] PX 206; Subrahmanyam Report Ex. C.2. 3G's sudden and high volume trading in CSX shares raised interest at UBS, one of 3G's prime brokers. A UBS representative asked 3G why it had focused on CSX, and observed that its CSX holdings represented "a very sizeable position and not something that fit[ ] into [its] regular trading patterns." PX 63. [80] PX 206; Subrahmanyam Report Ex. C.2. [81] DX 11, at CSX_00007286-87. [82] Id. at CSX_00007285-86. [83] DX 146 (Behring) ¶ 30. This meeting never occurred. [84] PX 206; Subrahmanyam Report Ex. C.2. [85] Docket item 61 ¶ 80. [86] PX 206. [87] PX 94. [88] Id. [89] PX 268 (Baggs) ¶ 19. [90] CSX initially declined to meet without documentation of 3G's holdings. See Tr. (Baggs) at 52. 3G then had Morgan Stanley write to CSX and state that 3G held 19,407,894 shares of CSX common stock in an account there. DX 30. [91] DX 146 (Behring) ¶¶ 34, 41. [92] PTO ¶¶, 20-21. [93] PX 105. [94] The counterparty for these swaps was Morgan Stanley. PX 206; Subrahmanyam Report Ex. C.2. [95] PX 206; Subrahmanyam Report Ex. C.2. [96] DX 146 (Behring) ¶¶ 44-45. Schwartz contends that Behring identified Lamphere by reviewing annual reports. See Docket item 61 ¶ 106.5. [97] PX 142. The Court does not credit Lamphere's deposition testimony that Schwartz created the document. [98] PX 194, at LAM 0000237; PX 145. [99] PTO ¶ 30. [100] PX 206; Subrahmanyam Report Ex. C.2. [101] Id. [102] Id. [103] Docket item 61 ¶ 15. [104] Tr. (Behring) at 122-23. [105] Tr. (Hohn) at 159. [106] Id. at 160. [107] Id. at 160-61. [108] Docket item 61 ¶ 53. [109] PX 274. [110] PX 42. [111] Tr. (Hohn) at 156 ("If you read the email, again, you see the title is Arcelor Brasil. It does not say that I wanted to speak to him about CDS swaps. In fact, I wanted to speak to him about Arcelor Brasil, which was a $500 million position for us where we were engaged in an issue with the Brazilian SEC ruling on a minority buyout. I wanted to get Alex's views on whether the Brazilian SEC, how they would deal with the situation."). His reasoning, however, is not credible, as a discussion with Behring arose only after Hohn focused on CSX. Moreover, Hohn's current explanation is undermined by his deposition testimony, in which he claimed that he did not know that "friend Alex of Brazil" referred to Alex Behring. See Docket item 61 ¶ 55. [112] Tr., June 9, 2008, at 53. [113] PX 66. [114] Tr. (Behring) at 99; id. (Amin) at 196. Behring, however, admitted that he met with Amin from time to time and that he could have met with him around March 29, see id. (Behring) at 102, and Amin testified that he had no reason to believe that the meeting did not occur. Id. (Amin) at 196. [115] Id. (Behring) at 102; (Amin) at 197. [116] PX 207. [117] See PX 268 (Baggs) ¶ 19; PX 101. [118] PX 268 (Baggs) ¶ 19. [119] Subrahmanyam Report Ex. C. 1. [120] PX 126, at TCI0017049 [121] PX 206; Subrahmanyam Report Ex. C.2. [122] DX 146 (Behring) ¶ 44. [123] Tr. (Behring) at 124-27; id. (Amin) 197. The Court does not credit Amin's testimony that they never discussed buying or selling CSX stock. [124] PX 206; Subrahmanyam Report Ex. C.2. [125] DX 70. [126] DX 61. [127] DX 145 (Amin) ¶ 60. [128] JX 8 (Item 5). [129] Id. (Item 4). TCI had paid $762,251,613, including commissions, to acquire the 17,796,998 shares that it held and 3G had paid $707,588,338, including commissions, for its 17,232,854 shares. Id. (Item 3). [130] Id. (Item 4). [131] Id. (Item 6). [132] DX 72. [133] PX 266 (Kelly) ¶ 23; DX 144 (Hohn) ¶ 45; PX 161, at TCI0874906. [134] See PX 157, 158, 161, 163. [135] PX 266 (Kelly) ¶ 23; PX 165. Amin noted that it was "very unfortunate[]" that Hohn articulated his demands in an email. See PX 275, at TCI0959364; Tr. (Amin) at 208. He claims to have said that because he thought such matters were "better discussed in person so that there is no confusion about what's being requested." Tr. (Amin) at 208. This testimony, which borders on the absurd, is patently incredible. [136] PX 266 (Kelly) ¶ 25. [137] PX 167. [138] DX 306, at CSX_00035073. [139] PX 169. [140] PTO ¶ 33; JX 9. The Group filed an additional supplemental notice on January 25 proposing to repeal any bylaws passed by the board from January 1, 2008, onward. JX 10. The effect of this proposal would be to repeal the board's February 4, 2008, amendment to the bylaws that permitted shareholders of fifteen percent or more of a class of stock to call a special meeting. [141] JX 3, at third page. [142] Id. at page 57. [143] Id. The third proposal ultimately was withdrawn. [144] JX 12, at fourth page. [145] Id. at page 15. [146] Id. at page 17. This fact was disclosed in CSX's proxy materials as well. [147] PTO, at 92-93. [148] Id. at 93-94. [149] See Act of July 29, 1968, Pub.L. No. 90-439, § 2, 82 Stat. 454 (1968). Senator Williams opened the hearings on the legislation by stating that filling the large gap in the disclosure requirements of the securities laws, a step already taken at that point by several other countries, would ensure that "[a]ll will be able to deal in the securities markets knowing that all of the pertinent facts are available. This is the premise under which our securities markets are supposed to work. Following this premise they have thrived and prospered over the years. Now is the time to eliminate the last remaining areas where full disclosure is necessary but not yet available." Full Disclosure of Corporate Equity Ownership and in Corporate Takeover Bids: Hearing Before the Subcomm. on Securities of the S. Comm. On Banking and Currency, 90th Cong., 1st Sess. 2-3 (1967) (statement of Sen. Williams, Chairman, Senate Subcomm. on Securities). [150] GAF Corp. v. Milstein, 453 F.2d 709, 717 (2d Cir.1971), cert. denied, 406 U.S. 910, 92 S.Ct. 1610, 31 L.Ed.2d 821 (1972). [151] 15 U.S.C. § 78m(d)(1). [152] Id. § 78m(d)(3). [153] See Takeover Bids: Hearing Before the Subcomm. on Commerce and Finance of the H. Comm. on Interstate and Foreign Commerce, 90th Cong., 2d Sess. 40-41 (1968) (statement of Manuel F. Cohen, Chairman, Securities and Exchange Commission) ("[B]eneficial ownership is the test. [The acquiring entity] might try to get around it, and that would be a violation of law, but the legal requirement is beneficial ownership."). [154] See, e.g., Wellman v. Dickinson, 682 F.2d 355, 365-66 (2d Cir.1982) (rejecting narrow construction of § 13(d)(3) in light of legislative history), cert. denied 460 U.S. 1069, 103 S.Ct. 1522, 75 L.Ed.2d 946 (1983). [155] See 17 C.F.R. § 240.13d-3. [156] Filing and Disclosure Requirements Relating to Beneficial Ownership, Exchange Act Release Nos. 33-5925, 34-14692, 43 Fed.Reg. 18,484, 18,489 (Apr. 28, 1978); Interpretive Release on Rules Applicable to Insider Reporting and Trading, Exchange Act Release No. 34-18114, 46 Fed.Reg. 48,147 (Oct. 1, 1981) (indicating that the concept of beneficial ownership under Section 13(d) "emphasizes the ability to control or influence the voting or disposition of the securities."). [157] See, e.g., Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 99-100, 62 S.Ct. 1, 86 L.Ed. 65 (1941); United States v. Huber, 603 F.2d 387, 394 (2d Cir.1979), cert. denied 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980); W. 79th St. Corp. v. Congregation Kahl Minchas Chinuch, No. 03 Civ. 8606(RWS), 2004 WL 2187069, at *5 (S.D.N.Y. Sept.29, 2004). [158] Adoption of Beneficial Ownership Disclosure Requirements, Exchange Act Release Nos. 33-5808, 34-13291, 42 Fed.Reg. 12,342, 12,344 (Mar. 3, 1977)(emphasis added). [159] Id. [160] SEC v. Drexel Burnham Lambert Inc., 837 F.Supp. 587, 607 (S.D.N.Y.1993) (internal quotation marks and emphasis omitted), aff'd sub nom. SEC v. Posner, 16 F.3d 520 (2d Cir.1994), cert. denied, 513 U.S. 1077, 115 S.Ct. 724, 130 L.Ed.2d 629 (1995) (emphasis added). Accord Filing and Disclosure Requirements Relating to Beneficial Ownership, Exchange Act Release Nos. 33-5925, 34-14692, 43 Fed.Reg. 18,484, 18,489 (Apr. 28, 1978) (Rule 13d-3(a) requires disclosure "from all those persons who have the ability to change or influence control") (emphasis added); Interpretive Release on Rules Applicable to Insider Reporting and Trading, Exchange Act Release No. 34-18114, 46 Fed. Reg. 48, 147 (Oct. 1, 1981) (indicating that the concept of beneficial ownership under Section 13(d) "emphasizes the ability to control or influence the voting or disposition of the securities.") (emphasis added). [161] Four of the counterparties—Citigroup, Deutsche Bank, Morgan Stanley, and UBS— purchased shares to hedge its corresponding swap short position every time they and TCI entered into a TRS. See Subrahmanyam Rebuttal Report, at 12. Deutsche Bank in each case did so on the same day on which the TRS was transacted. See id. at 12. Merrill Lynch hedged fifteen of its sixteen swaps by purchasing an equivalent number of matching shares, all on the same day as the swap transaction, and Credit Suisse hedged fourteen of its sixteen swaps in the same manner, all on the same day as the swaps. Id. (No data were provided for Goldman or J.P. Morgan.) [162] See Subrahmanyam Report ¶¶ 87-102 (explaining why alternative instruments used to hedge risk were not economically practical for the bank counterparties). [163] See PX 30, at TCI0929168; PX 22; PX 27. [164] Mr. Amin's testimony that TCI could not and did not assume that each counterparty would hedge the swaps by purchasing a corresponding number of physical shares, see Tr. (Amin) at 202-03, 205-06, simply is not credible. [165] Henry Hu & Bernard Black, 79 S. CAL. L.REV. at 868. [166] See Subrahmanyam Rebuttal Report Exs. 4.1 to 4.7. [167] Id. [168] See, e.g., DX 149 (Partnoy Report) ¶ 50. [169] Some appear to have policies that preclude its swap counterparties from influencing any votes on proprietary shares purchased to hedge swaps. Others, notably Deutsche Bank, do not prohibit swap counterparties such as TCI from influencing the manner in which it votes hedge shares. Still others appear to lack any uniform policies. Citigroup views the shares it purchases to hedge swaps as exclusively under its control and as "a matter of practice" does not vote those shares, but admitted that it "might vote" them. Kennedy Dep. at 19, 24. UBS refers "[a]ny request by a swap counterparty relating to voting of a [UBS proprietary share]" to its legal department. DX 149 (Partnoy Report) ¶¶ 49(c). [170] TCI left swaps in each of its six other counterparties to obscure the identities of its principal counterparties. Tr. (Amin) at 204-06; Docket item 70, at 64-65 ¶ 39. [171] DX 144 (Hohn) ¶ 30. [172] See, e.g., Carrick Mollenkamp, HSBC, the Subprime Seer: Sanguine View Isn't Likely, WALL ST. J., Nov. 12, 2007, at C1 (noting that Citigroup was expected to announce potential write-downs of nearly $11 billion in the fourth quarter of 2007). [173] Amin's testimony to the contrary, see Tr. (Amin) at 218, is not credible. [174] PX 264 (Ward) ¶ 25. [175] Subrahmanyam Rebuttal Report Ex. 4.3. [176] PX 270 (Miller) ¶¶ 16-19, 26, 28, 34; Tr. (Miller) at 76-77. [177] The coincidence was not exact. There was a two day difference. PX 16, at CSX CORP XXXXXXXX-XX; PX 17, at CSX CORP 00008181. [178] Tr., June 9, 2008, at 28:18-29:5. [179] The record date for payment of dividends was February 29. The new record date for the adjourned shareholders meeting was set on March 14. PX 17, at CSX CORP 00008181; PX 18, at CSX CORP 00008206. [180] Tr. (Miller) at 84. [181] See Arnone Dep. at 39-40, 51-54; Busby Dep. at 24, 28-30, 34. In fact, TCI cites to the deposition of Arnone, see docket item 59, at 33, without disclosing that the pages referenced record not testimony, but a statement by counsel. See Arnone Dep. at 54-48. [182] Interpretive Release on Rules Applicable to Insider Reporting and Trading, Exchange Act Release No. 34-18114, 46 Fed.Reg. 48,147 (Oct. 1, 1981) (emphasis added). See also Wellman, 682 F.2d at 365 n. 12 (beneficial ownership not defined by Rule 13d-3 "solely as present voting power"). [183] See PX 160, at TCI0891561-62. [184] DX 149 (Partnoy Report) ¶ 49(a). [185] Note 156, supra. [186] Note 158, supra. [187] Id. [188] Tr., June 9, 2008, at 27:33. [189] Defendants rely on an SEC interpretive release in which the Commission took the position that "[a] purchaser of a cash-settled security future (i.e., a security future that, by its terms, must be settled by a cash payment) would not count the equity securities underlying the contract for purposes of determining whether he or she is subject to the Regulation 13D reporting requirements, because he or she does not have the right to acquire beneficial ownership of the underlying security." Commission Guidance on the Application of Certain Provisions to Trading in Security Futures Products, 67 Fed.Reg. 43,234, 43,240 (June 27, 2002) (listed as an interpretive release at 17 C.F.R. pts. 231 and 241). As an initial matter, no one suggests that this interpretation resolves the question before this Court. The interpretive release involved only cash-settled securities futures, which are impersonal exchange traded transactions, and at least to that extent, unlike cash-settled equity swaps. Moreover, there is no evidence that the Commission intended this guidance to apply outside the context of cash-settled securities futures. In any case, in view of the fact that the matter is being decided on other grounds, this interpretation need not be addressed at greater length. [190] The statements referred to, e.g., note 156, supra, were not made in the specific context of swaps or other derivatives. [191] See, e.g., Henry Hu & Bernard Black, Equity and Debt Decoupling and Empty Voting II: Importance and Extensions, 156 U. PENN. L.REV. 625, 735-37 (2008) (assuming that equity swaps do not give the long party beneficial ownership, they can be used to secure effective control without disclosure otherwise required by § 13(d)). Similarly, professor and former SEC commissioner Joseph Grundfest and other academics have written that "[i]n the context of this case, the ... integrity of the stock market was undermined and an uneven playing field was created." See Letter from Joseph Grundfest, Henry Hu, and Marti Subrahmanyam to Brian Cartwright, General Counsel of the SEC (June 2, 2008), at 13. [192] A major proponent of the hypothesis that dire consequences will ensue from a determination of beneficial ownership in this case is defendants' expert Frank Partnoy. Having considered Partnoy's positions and Marti Subrahmanyam's responses, the Court believes Partnoy's views are exaggerated and declines to accept them. In addition, Partnoy's views in this respect are unpersuasive because his failure to engage with the specific circumstances of this case renders his generalizations suspect. [193] Robert Cyran, Policing Equity Derivatives, WALL ST. J., June 7, 2008, at B14. [194] Resnik v. Swartz, 303 F.3d 147, 151-52 (2d Cir.2002). [195] Forest Watch v. United States Forest Serv., 410 F.3d, 115, 117 (2d Cir.2005) (quoting Reno v. Nat'l Transp. Safety Bd., 45 F.3d 1375, 1379 (9th Cir. 1995)). [196] APWU v. Potter, 343 F.3d 619, 626 (2d Cir.2003) (internal citation omitted). [197] See 17 C.F.R. § 240.13d-3(b). [198] PX 19, at TCI0011386; see also Subrahmanyam Report ¶ 72. [199] PX 22, 27-30; see also Subrahmanyam Report Exs. D, D.1-D.7. [200] DX 144 (Hohn) ¶ 22; Tr. (Hohn) at 188-90. [201] Letter from Brian Breheny, Deputy Director of the Division of Corporation Finance, to Judge Kaplan (June 4, 2008), at 3. [202] Id. [203] Id. at 4. [204] Treadway Cos., Inc. v. Care Corp., 638 F.2d 357, 380 (2d Cir.1980) (internal citation omitted). [205] As a staff interpretation, the Division's views are entitled to no greater weight than flows from their persuasive qualities. See United States v. Mead Corp., 533 U.S. 218, 234-35, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944); see also Gryl ex rel. Shire Pharms. Group PLC v. Shire Pharms. Group PLC, 298 F.3d 136, 145 (2d Cir.2002), cert, denied 537 U.S. 1191, 123 S.Ct. 1262, 154 L.Ed.2d 1024 (2003). [206] Letter from Bernard Black to Brian G. Cartwright, General Counsel of the SEC (May 29, 2008), at 4-5 (emphasis in original). [207] Id. at 5 (emphasis in original). [208] 15 U.S.C. § 78w(a). [209] Id. § 78w(a)(1). [210] See Amendments to Tender Offer Rules; All-Holders and Best-Price, Exchange Act Release Nos. 33-6653, 34-23421, 51 Fed.Reg. 25,873-01, 25,875 (July 11, 1986); see also Mourning v. Family Publ'ns Serv., Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973) (quoting Thorpe v. Housing Auth. of City of Durham, 393 U.S. 268, 280-81, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969)); Polaroid Corp. v. Disney, 862 F.2d 987, 994-95 (3d Cir.1988) (sustaining All Holders Rule as within the SEC's rulemaking authority). [211] GAF Corp. v. Milstein, 453 F.2d 709, 717 (2d Cir.1971), cert, denied 406 U.S. 910, 92 S.Ct. 1610, 31 L.Ed.2d 821 (1972). [212] Adoption of Beneficial Ownership Disclosure Requirements, Exchange Act Release No. 33-5808, No. 34-13291, 42 Fed.Reg. 12,342, 12,344 (Mar. 3, 1977). [213] The language of the Rule defines the term "[f]or the purposes of sections 13(d) and 13(g) of the Act." 17 C.F.R. § 240.13d-3(a). While the use in the Rule of the term "includes," inter alia, makes clear that Rule 13d-3(a)(1) and (2) are not the only criteria that define "beneficial ownership," Rule 13d-3(a) as a whole appears quite plainly to reflect the Commission's intent to define the term exhaustively for purposes of the statute. Curiously, however, the Division's amicus letter, without citation of authority, states that the Division "believes that Rule 13d-3, properly construed, is narrower in coverage than the statute." [214] JX 8. [215] 15 U.S.C. § 78m(d)(3). [216] Hallwood Realty Partners, L.P. v. Gotham Partners, L.P., 286 F.3d 613, 617 (2d Cir.2002) (internal quotation marks omitted). [217] Wellman, 682 F.2d at 363; see Morales v. Quintel Entm't, Inc., 249 F.3d 115, 124 (2d Cir.2001). [218] Hallwood Realty Partners, L.P. v. Gotham Partners, L.P., 95 F.Supp.2d 169, 176 (S.D.N.Y.2000), aff'd, 286 F.3d 613. [219] Hallwood Realty Partners, 286 F.3d at 617; see Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir.1994) ("[Conspiracies are by their very nature secretive operations that can hardly ever be proven by direct evidence."). [220] Hohn testified that he was "particularly sensitive to the issue of groups and knowledgeable about when a group is formed and when it is not formed," Tr. (Hohn) at 180, and claims often to have begun conversations with other hedge funds, including 3G, by saying that the two parties were not a group. Id. (Behring) at 120. Furthermore, when TCI approached the line between non-group and group behavior as it viewed it, it sought to limit any paper trail. See, e.g., PX 84; see also PX 46, at TCI0345190 ("we cannot be in a group so we are careful on sending models"). [221] The timeline in the original and official, copy of this opinion is in color and larger than the standard 8.5 × 11 inch page. A reduced, black and white copy is included in the electronically filed version. [222] See, e.g., United States v. Beaver, 515 F.3d 730, 739 (7th Cir.2008) ("It is not uncommon for members of a price-fixing conspiracy to cheat on one another occasionally, and evidence of cheating certainly does not, by itself, prevent the government from proving a conspiracy."). [223] No. 00 Civ. 1115(LAK) (S.D.N.Y. dated Feb. 23, 2001), aff'd, Hallwood Realty Partners, L.P., 286 F.3d 613. [224] Id.; see Wellman, 682 F.2d at 363-65 (relying, inter alia, upon communications and common objectives among putative members to sustain "group" finding). [225] 15 U.S.C. § 78m(d)(1). [226] United States v. Bilzerian, 926 F.2d 1285, 1298 (2d Cir.), cert, denied, 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 39 (1991). [227] Id. (citing TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976) (noting that to satisfy the materiality requirement, "there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the `total mix' of information made available.")). [228] See Standard Metals Corp. v. Tomlin, 503 F.Supp. 586, 603-04 (S.D.N.Y.1980) (disclosure of the existence of a group renders the date of formation "relatively immaterial"). [229] JX 8 (Items 5 and 6). [230] The Court doubts whether any reasonable investor would have found those agreements, some of which exceeded 100 pages, important in making an investment decision. [231] JX 8 (Item 4). [232] See Int'l Banknote Co., Inc. v. Muller, 713 F.Supp. 612, 621 (S.D.N.Y.1989). [233] JX 12, JX 17, JX 19. [234] 15 U.S.C. § 78n(a). [235] 17 C.F.R. § 240.14a-9. [236] 15 U.S.C. § 78n(a). [237] 17 C.F.R. § 240.14a-9(a). [238] Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1090, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991); Resnik v. Swartz, 303 F.3d 147, 151 (2d Cir.2002). [239] JX 19, at page 5. [240] See DX 306. [241] 17 C.F.R. § 240.14a-101. [242] JX 19, at 18. [243] 15 U.S.C. § 78t(a). [244] E.g., In re BISYS Sec. Litig., 397 F.Supp.2d 430, 450-52 (S.D.N.Y.2005); In re Parmalat Sec. Litig., 375 F.Supp.2d 278, 307-10 (S.D.N.Y.2005); In re NTL, Inc. Sec. Litig., 347 F.Supp.2d 15, 37 n. 127 (S.D.N.Y.2004) [245] PX 87A, at TCI0418758. [246] PX 140. [247] JX 8. [248] PX 105. [249] See Docket item 59, at 56-57. [250] Tr. (Hohn) at 187-88. The fact that the testimony that TCI relies upon came in response to a question by the Court is beside the point. It would be fundamentally unfair for TCI now to assert that it relied upon the advice of counsel after having prevented CSX from inquiring into what advice was sought and on what factual predicate, and what advice in fact was given. [251] See, e.g., Docket item 89, at 3-7. [252] E.G.L. Gem Lab Ltd. v. Gem Quality Inst., Inc., 90 F.Supp.2d 277, 296 n. 133 (S.D.N.Y. 2000), aff'd, 4 Fed.Appx. 81 (2d Cir.2001) (affirming judgment and finding of bad faith); Trouble v. Wet Seal, Inc., 179 F.Supp.2d 291, 304 (S.D.N.Y.2001) (party waives advice of counsel defense by failing to disclose intention to assert that defense during discovery); In re Buspirone Antitrust Litig., 208 F.R.D. 516, 521-24 (S.D.N.Y.2002) (similar); In re Worldcom, Inc. Sec. Litig., No. 02 Civ. 3288(DLC), 2005 WL 600019 (S.D.N.Y. Mar. 15, 2005) (denying leave to amend to assert advice of counsel defense given lack of notice during discovery); In re Worldcom, Inc. Sec. Litig., No. 02 Civ. 3288(DLC), 2005 WL 627721 (S.D.N.Y. Mar.16, 2005) (same); see Bilzerian, 926 F.2d at 1292. [253] Docket item 90, Ex. 15, at 139:19-140:5. [254] PX 159. [255] JX 9, 10. [256] JX 30, at 4. [257] Id. at 7. [258] Id. at 5. [259] Virginia High Sch. League, Inc. v. JJ. Kelly High Sch., 254 Va. 528, 531, 493 S.E.2d 362 (1997). [260] See, e.g., Akers v. James T. Barnes of Washington, D.C., 227 Va. 367, 370-71, 315 S.E.2d 199 (1984) ("Substantial compliance with reference to contracts, means that although the conditions of the contract have been deviated from in trifling particulars not materially detracting from the benefit the other party would derive from a literal performance, he has received substantially the benefit he expected, and is, therefore, bound to pay.") (emphasis removed). [261] 15 U.S.C. § 78n(a). [262] 17 C.F.R. § 240.14a-9(a). [263] See Resnik v. Swartz, 303 F.3d 147, 151 (2d Cir.2002). [264] Resnik, 303 F.3d at 151 (quoting Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1090, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991)). [265] See, e.g., PX 4 at 5; PX 267 (Munoz) ¶ 21; PX 265 (Richardson) ¶ 13. [266] PX 265 (Richardson) ¶¶ 12, 14. [267] JX 5, at 27. [268] 17 C.F.R. § 240.14a-101 (Item 8). [269] 17 C.F.R. § 229.402(b)(2)(iv). [270] Executive Compensation and Related Person Disclosure, Exchange Act Release Nos. 33-8732A, 34-54302A, 71 Fed.Reg. 53,158, 53,163-64 (Sept. 8, 2006). CSX argues that the performance grants are not options and thus fall outside of this regulation. But the SEC release makes clear that this disclosure should be made with regard to "the award of stock options and other equity-based instruments." Mat 53,165. The SEC's Division of Corporation Finance confirms this. SEC, Item 402 of Regulation S-K—Executive Compensation, Questions & Answers of General Applicability, Question 3.01, http://www. sec.gov/divisions/corpfin/guidance/execcomp 402interp.htm. That the performance grants are subject to later adjustment is immaterial because the trading price on the date of the grant determines the number of shares that can be earned. If the grants were made just prior to the release of material non-public information that increased the trading price, then the monetary value of the grants would appear artificially small. It is this type of timing, if done as part of a program, plan, or practice, that should be disclosed under the regulation and guidance. [271] JX 27, atl. [272] Id. at 3. [273] Id. atl. [274] PX 14, at 8. [275] JX 5, at 15. [276] PX 269 (Fitzsimmons) ¶ 10. [277] Koppel v. 4987 Corp., 167 F.3d 125, 133 (2d Cir.1999); see Va. Bankshares, 501 U.S. at 1098 n. 7, 111 S.Ct. 2749 ("Subjection to liability for misleading others does not raise a duty of self-accusation; [rather] it enforces a duty to refrain from misleading.") [278] In re: PHLCORP Sec. Tender Offer Litig., 700 F.Supp. 1265, 1269 (S.D.N.Y.1988)(stating, in a § 14(e) case, that as long as the relevant underlying facts are disclosed, the securities laws do not require insiders to characterize conflict of interest transactions with pejorative nouns or adjectives); see GAF Corp. v. Heyman, 724 F.2d 727, 740 (2d Cir. 1983). [279] Such statements were made in the Board's February 14, 2008, letter to Hohn (DX 79) and in CSX's March 17, 2008, press release (DX 86). CSX has filed both of these documents as additional solicitation material pursuant to Rule 14a-12. [280] JX 17, at 1. [281] PX 266 (Kelly) ¶ 25 (Kelly understood Hohn to have threatened to create a dissident board that could disrupt the operation of the board). [282] See, e.g., PX 108 (indicating that TCI might attempt to replace the entire board); PX 111 (same). [283] PX 266 (Kelly) ¶ 27. [284] Virginia Bankshares, 501 U.S. at 1095-96, 111 S.Ct. 2749; Bond Opportunity Fund v. Unilab Corp., No. 99 Civ. 11074(JSM), 2003 WL 21058251, at *5 (S.D.N.Y. May 9, 2003); In re: McKesson HBOC, Inc. Sec. Litig., 126 F.Supp.2d 1248, 1260, 1265 (N.D.Cal.2000). [285] For example, TCI's proxy solicitor, D.F. King, expressed the opinion that "the loss of confidence expressed by shareholders in electing a short-slate dramatically alters longstanding board alliances and creates opportunities for change." PX 135. [286] This statement was made in a March 11, 2008, opinion article by Michael Ward published in the Washington Times. DX 184. CSX filed the article as additional soliciting material. [287] See, e.g., DX 47, 83, 82 at 99, 152-54; PX 96, 121. [288] Resnik, 303 F.3d at 151 (quoting Virginia Bankshares, 501 U.S. at 1090, 111 S.Ct. 2749). [289] See Virginia Bankshares, 501 U.S. at 1090-91, 111 S.Ct. 2749 ("We think there is no room to deny that a statement of belief by corporate directors about a recommended course of action, or an explanation of their reasons for recommending it, can [be material].") [290] Id. at 1091, 111 S.Ct. 2749. [291] Berg v. First Am. Bankshares, Inc., 796 F.2d 489, 496 (D.C.Cir.1986). [292] DX 86. [293] PX 266 (Kelly) ¶ 21. [294] Tr. (Ward), at 13:9-14; 13:21-23; 16:21-24. [295] PX 15, at 2-3; PX 266 (Kelly) ¶¶ 21-22. [296] See, e.g., PX 266 (Kelly) ¶ 23; DX 144 (Hohn) ¶¶ 45-47. [297] See PX 169. [298] Although Ward admits that CSX's current plan is to "deploy offense and defense with the goal of zero dissidents," there is no evidence that CSX adopted this plan while the negotiations with TCI were ongoing. See Tr. (Ward) at 22:2-23:7; DX 307 (notes from meeting that occurred after end of negotiations). [299] DX 86. [300] JX 5, at 54; JX 30, at Art. I, § 2(b) (the amendment). [301] Although the Amendment does not preclude specifically the use of special meetings for the election or removal of directors, its terms achieve that effect. See DX 266 (Kelly ¶ 7). [302] JX 5, at 54. [303] See DX 98. [304] VA.CODE § 13.1-680. [305] Id. [306] Rather, shareholders are only able to call a special meeting if the articles or bylaws of the corporation authorize it. VA.CODE § 13.1-655. [307] VA CODE § 13.1-655 provides that "[a] corporation shall hold a special meeting of shareholders ... [o]n call of the chairman of the board of directors, the president, the board of directors. ..." [308] See, e.g., GAF Corp. v. Milstein, 453 F.2d 709, 720 (2d Cir.1971) (§ 13(d)), cert, denied, 406 U.S. 910, 92 S.Ct. 1610, 31 L.Ed.2d 821 (1972); Capital Real Estate Investors Tax Exempt Fund Ltd. P'ship v. Schwartzberg, 929 F.Supp. 105, 108-09 (S.D.N.Y. 1996) (§ 14(a)). See also Rondeau, 422 U.S. at 62-63, 95 S.Ct. 2069 (securities laws generally); Mobil Corp. v. Marathon Oil Co., 669 F.2d 366, 371 (6th Cir.1981) (§ 14(a)), cert, denied, 455 U.S. 982, 102 S.Ct. 1490, 71 L.Ed.2d 691 (1982). [309] Hallwood Realty Partners, L.P., 286 F.3d at 620. [310] Id. at 620-21. [311] Roach v. Morse, 440 F.3d 53, 56 (2d Cir. 2006) (quoting N.Y. State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir.1989) (citing Rondeau, 422 U.S. at 57, 95 S.Ct. 2069)). The Court applies the standard for a permanent injunction because this case was tried on the merits, pursuant to FED. R. CIV. P. 65(a)(2). [312] ICN Pharm., Inc. v. Khan, 2 F.3d 484, 489 (2d Cir.1993) ("[A]n injunction will issue for a violation of § 13(d) only on a showing of irreparable harm to the interests which that section seeks to protect" (quoting Treadway Cos., 638 F.2d at 380); Capital Realty Investors Tax Exempt Fund Ltd. P'ship v. Dominium Tax Exempt Fund L.L.P., 944 F.Supp. 250, 258-259 (S.D.N.Y.1996) (§ 14); ONBANCorp, Inc. v. Holtzman, 956 F.Supp. 250, 256 (N.D.N.Y.1997) (§ 14); E.H.I, of Fla., Inc. v. Ins. Co. of N. Am., 499 F.Supp. 1053, 1066 (D.C.Pa.1980) (§ 14)). Moreover, when assessing irreparable harm for 13(d) claims, the court is not concerned with the shareholder who already has sold shares at a depressed price. E.ON AG v. Acciona, S.A., 468 F.Supp.2d 537, 557 (S.D.N.Y.2006) (citing Rondeau, 422 U.S. at 59, 95 S.Ct. 2069). [313] The Court has found also that Hohn and Behring are personally liable for the violations of TCI and 3G respectively. [314] Defendants most recently held 8.3 percent of CSX's shares. Of that total, 1.9 percent were acquired by 3G before its disclosure obligation arose upon the expiration of 10 days following the formation of a group with TCI no later than February 13, 2007. [315] Had defendants made full and timely disclosure, it is likely that the price of CSX shares would have risen on the prospect of a battle for control. [316] 422 U.S. 49, 95 S.Ct. 2069, 45 L.Ed.2d 12. [317] Id. at 51-54, 95 S.Ct. 2069. [318] Id. at 56-57, 95 S.Ct. 2069. [319] Id. at 59, 95 S.Ct. 2069. [320] Kamerman v. Steinberg, 891 F.2d 424, 430 (2d Cir.1989) (quoting GAF Corp., 453 F.2d at 720). [321] ICN Pharm., 2 F.3d at 489 ("`[A]n injunction will issue for a violation of § 13(d) only on a showing of irreparable harm to the interests which that section seeks to protect. Those interests are fully satisfied when the shareholders receive the information required to be filed.'" (citations omitted) (quoting Treadway Cos., 638 F.2d at 380)); Treadway Cos., 638 F.2d at 380 ("Since the informative purpose of § 13(d) had thereby been fulfilled, there was no risk of irreparable injury. ..."). [322] Treadway Cos., 638 F.2d at 380 n. 45 (quoting Fin. Gen'l Bankshares, Inc. v. Lance, No. 78-0276, 1978 WL 1082, at *13 (D.D.C., Apr.27, 1978)). [323] This conclusion is consistent with the district court case to which the Circuit cited. In Financial General Bankshares Inc., the Court observed that enjoining any future stock acquisition "might be appropriate if defendants had obtained effective control ... as a result of purchases made while not complying with section 13(d)." The Court concluded that the defendants had not obtained effective control despite acquiring approximately an additional 15 percent of the outstanding shares. Fin. Gen'l Bankshares, Inc., No. 78-0276, 1978 WL 1082, at *13 (D.D.C. Apr.27, 1978). [324] PX 266 (Kelly) ¶ 25. [325] See, e.g., Dan River, Inc. v. Unitex Ltd., 624 F.2d 1216, 1225 (4th Cir.1980) (20 percent "frequently is regarded as control of a corporation"); Standard Fin., Inc. v. La-Salle/Kross Partners, L.P., No. 96 C 8037, 1997 WL 80946, at *4-*5 (N.D.Ill. Feb.20, 1997) (intention to obtain two board seats and to influence company evidenced purpose to exercise control); Saunders Leasing Sys., Inc. v. Societe Holding Gray D'Albion, S.A., 507 F.Supp. 627, 633-34 (N.D.Ala.1981) (intention to acquire 25 percent of issuer "controlling"). [326] E.g., Raybestos-Manhattan, Inc. v. Hi-Shear Indus., 503 F.Supp. 1122, 1133 (E.D.N.Y.1980) (quoting Treadway, but not finding degree of effective control); Drobbin v. Nicolet Instrument Corp., 631 F.Supp. 860, 913 n. 3 (S.D.N.Y.1986) (same). [327] Other courts have observed that the disadvantage to management or to a tender offeror that may result from a shift in the corporate electorate does not an irreparable harm. See, e.g., Gearhart Indus., Inc. v. Smith Intern., Inc., 741 F.2d 707, 715 (5th Cir.1984) ("Insofar... as the injunction is made to rest on disadvantage created to ... management's resistance to the takeover, the Williams Act does not support it."); E.ON AG v. Acciona, S.A., No. 06 Civ. 8720(DLC), 2007 WL 316874, at *9 (S.D.N.Y. Feb.5, 2007) (fact that defendant's substantial stock holdings may make tender offer more difficult does not constitute irreparable harm); Fin. Gen'l Bankshares, Inc., No. 78-0276, 1978 WL 1082, at *12 (no irreparable injury based "unlawful headstart [tender offerors] have obtained in their surreptitious efforts to seize control. ..."). [328] See, e.g., San Francisco Real Estate Investors v. Real Estate Inv. Trust of Am., 701 F.2d 1000, 1009 (1st Cir.1983); Am. Carriers, Inc. v. Baytree Investors, Inc., 685 F.Supp. 800, 812-13 (D.Kan. 1988); Hanna Mining Co. v. Norcen Energy Resources Ltd., 574 F.Supp. 1172, 1202-03 (N.D.Ohio 1982). [329] San Francisco Real Estate Investors, 701 F.2d at 1009. [330] Brief for the SEC as Amicus Curiae, San Francisco Real Estate Investors v. Real Estate Inv. Trust of Am., 701 F.2d 1000 (1st Cir. 1983) [DI61, Add. B]; see also Gen. Steel Indus., Inc. v. Walco Nat'l Corp., SEC Litig. Release No. 9533, 1981 WL 315222 (Dec. 21, 1981). [331] Rondeau, 422 U.S. at 62, 65, 95 S.Ct. 2069. [332] Id. at 64-65, 95 S.Ct. 2069. [333] 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977). [334] Id. at 40 n. 26, 97 S.Ct. 926. [335] Plaintiff cites two post-Rondeau cases in which shares were sterilized despite corrective disclosure. Champion Parts Rebuilders, Inc. v. Cormier Corp., 661 F.Supp. 825 (N.D.Ill.1987); General Steel Indus., Inc. v. Walco Nat. Corp., No. 81-1410-C, 1981 WL 17552, at *3 (E.D.Mo. Nov.24, 1981). Both, however, relied on considerations that are inappropriate in light of Rondeau. [336] 15 U.S.C. § 78u(d). [337] SEC v. Cavanagh, 155 F.3d 129, 135 (2d Cir.1998) (citing SEC v. Unifund SAL, 910 F.2d 1028, 1040 (2d Cir.1990)). [338] Cavanagh, 155 F.3d at 135 (quoting SEC v. Commonwealth Chem. Sec, Inc., 574 F.2d 90, 100 (2d Cir. 1978)). [339] SEC v. Mgmt. Dynamics, Inc., 515 F.2d 801, 809 (2d Cir.1975). [340] Unifund SAL, 910 F.2d at 1036 (citations omitted); also Mgmt. Dynamics, Inc., 515 F.2d at 808-09. [341] Rondeau, 422 U.S. at 57, 95 S.Ct. 2069 (addressing, inter alia, injunction against future violations); Wininger v. SI Mgmt. L.P., 33 F.Supp.2d 838, 847 (N.D.Cal.1998) (concluding that plaintiff's request for a permanent injunction was not futile because the Court could issue a permanent injunction on a showing of irreparable harm). [342] U.S. Securities and Exchange Commission, Unofficial Transcript of the Roundtable Discussion on Proxy Mechanics May 24, 2007 (remarks of Prof. Henry Hu). (Unfortunately, the document is not paginated.) [343] See, e.g., E.On AG v. Acciona, S.A., No. 06 Civ. 8720(DLC), 2007 WL 316874, at *10 (S.D.N.Y. Feb.5, 2007).

740 N.W.2d 368 (2007) 16 Neb. App. 14 John C. MITCHELL, Appellee and Cross-Appellant, v. TEAM FINANCIAL, INC., et al., Appellants and Cross-Appellees. No. A-05-1271. Court of Appeals of Nebraska. October 9, 2007. *371 Alan E. Pedersen of McGill, Gotsdiner, Workman & Lepp, P.C., L.L.O., Omaha, for appellants. Richard A. DeWitt and David J. Skalka of Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, L.L.C., Omaha, for appellee. IRWIN, SIEVERS, and CASSEL, Judges. IRWIN, Judge. I. INTRODUCTION Team Financial, Inc. (TFIN), Team Financial Acquisition Subsidiary, Inc. (TAC), and TeamBank, N.A. (collectively the Defendants), appeal a judgment of the district court for Douglas County granting summary judgment in favor of John C. Mitchell and denying partial summary judgment for the Defendants. On appeal, the Defendants assert the district court erred in finding that a provision under an agreement with Mitchell constituted a guaranty and in finding that the Defendants breached the terms of the agreement, releasing Mitchell as guarantor. For the reasons stated below, we affirm the trial court's order. II. BACKGROUND On October 29, 1999, TFIN and TAC, a bank holding company that is wholly owned by TFIN, entered into an "Acquisition Agreement and Plan of Merger" (the Agreement) with Fort Calhoun Investment Co. (FCIC), a bank holding company, and Mitchell, an FCIC stockholder who has general power of attorney to act for the remaining stockholders in FCIC. Under the terms of the Agreement, TAC and TFIN agreed to purchase 100 percent of the outstanding FCIC common stock for $3,600,000. At the time of the merger, Fort Calhoun State Bank (the Bank) was a wholly owned subsidiary of FCIC, and the Bank held a reserve amount of $84,310 for loan loss. Prior to the closing of the Agreement, TAC conducted a review of the Bank's loans. It regarded one loan in particular, "Loan No. 635110," to be a "potential problem loan." Although 74 percent of loan No. 635110 was covered by an "SBA guarantee," the remaining 26 percent, or $175,534.13, was unsecured. As a result, the parties to the Agreement agreed that an additional reserve amount (ARA) of $170,000 would be set aside for loan loss in connection to loan No. 635110. This provision was incorporated into the Agreement under section 2.4, which read in pertinent part: Based on a review of loans of [the Bank], TAC and FCIC have agreed that there should be established an additional reserve for loan loss [in the amount of $170,000] in connection with the uninsured portion of Loan No. 635110 with [that loan's] promissory note and related loan documents hereinafter referred to as "Loan No. 635110". Such Additional Reserve Amount, [$170,000,] shall be deducted at Closing *372 from the Purchase Price (Cash Consideration) provided for in Section 2.2. Section 2.4 under the Agreement further provided: (ii) . . . [A]s long as Loan No. 635110 is not in default, [the Bank] shall distribute and pay to [Mitchell] interest on the [ARA]. . . . . (v) If Loan No. 635110 should be in default, the [ARA] may be reduced by [the Bank] to the extent of any loss to [the Bank]. . . . . (vii) Following default[, the] Bank or its successor shall not be obligated to pay any of the [ARA] to [Mitchell] until said loan is paid in full or written off by [the Bank]. (viii) [Mitchell] shall have the option to have the portion of [the loan's promissory] note not guaranteed by [the SBA guaranty] and the security thereon assigned to [Mitchell]. (ix) Upon payment in full of said loan or upon said note being written off, any remaining balance of the [ARA] shall be paid to [Mitchell]. (x) . . . [I]f the borrower . . . should make 24 consecutive timely monthly payments (not more than 30 days past due) of the regular principal and interest payments due on . . . Loan No. 635110 and if the borrower is not otherwise in default pursuant to the terms of the loan documents, then any remaining balance in the [ARA] shall be paid forthwith to [Mitchell] free and clear of any obligation for payment of Loan No. 635110. . . . (xi) [The Bank] shall make quarterly reports to [Mitchell] from such time [as] Loan No. 635110 is in default until the [ARA] is exhausted. The evidence indicates that prior to the closing of the Agreement, the Bank conducted a board of directors' meeting on February 29, 2000. Mitchell, who served as chairman of the board of directors, was present. At the meeting, a list of substandard loans was circulated, and a loan report indicated that the principal debtor for loan No. 635110 had not made his February payment, which had been due on February 13. The parties closed the Agreement on March 24, 2000. Although the evidence does not indicate the exact date, at some point after the closing of the Agreement, the Bank merged into TeamBank, N.A., a wholly owned subsidiary of TFIN and TAC. Because the terms of the Agreement include successors to the Bank, we will continue to refer to the newly merged bank as "the Bank." On March 7, 2001, the Bank sent notice to the principal debtor for loan No. 635110, informing him that he was in default on the loan and that the full sum was due on or before April 7. On December 3, 2002, more than 24 months after the closing of the Agreement, Mitchell tendered a formal demand of payment to the Defendants for the ARA of $170,000. TFIN's attorney responded by letter, stating, "My general understanding is that [loan No. 635110] went into default some time following the Effective Time of the merger and thereafter the collection efforts have been continuing." TFIN later sent a followup letter stating that when the Agreement became effective on March 24, 2000, loan No. 635110 was already in default. An additional followup letter further indicated that because there was a principal balance of $175,534.13 due on the unsecured portion of the loan, the Defendants intended to withhold the ARA to satisfy the loss. *373 On February 25, 2004, Mitchell filed a complaint alleging two causes of action: breach of contract and declaratory judgment seeking discharge of guarantors. In the first cause of action, Mitchell alleged that the Defendants breached section 2.4 of the Agreement because the Bank failed to make either interest payments from the ARA or quarterly reports indicating that loan No. 635110 was in default. Mitchell asserted that his rights under the Agreement were greatly impaired because he was unable to reduce or mitigate his exposure to loss as the guarantor of loan No. 635110. Under the second cause of action, Mitchell alleged that he should be discharged and excused from payment of any amount of the guaranty due to acts or omissions by the Defendants. We note here that Mitchell filed the complaint in his personal capacity. He asserted by affidavit that he is entitled to the full $170,000 because he distributed the cash consideration in the Agreement to the other FCIC shareholders, but did not reduce their payments by the $170,000 ARA. This position is not disputed by the Defendants. Mitchell filed a motion for summary judgment on March 23, 2005. On May 6, the Defendants filed a motion for partial summary judgment, asserting that Mitchell's second cause of action seeking a declaratory judgment and discharge of guarantors should be dismissed. Following an evidentiary hearing, the trial court granted Mitchell's motion for summary judgment and dismissed the Defendants' motion on September 19. The trial court looked to whether the $170,000 ARA under section 2.4 constituted an earn-out provision, an indemnity clause, or a guaranty. The court found that section 2.4 "d[id] not appear to be an earn-out provision" because "[n]othing in Section 2.4 addresses the overall earnings or value of [the Bank]; rather, Section 2.4 is entirely concerned with the specific performance of Loan No. 635110" (emphasis in original). The court further found that section 2.4 did not constitute an indemnity clause because "[n]othing in the provisions of Section 2.4 serves to protect TFIN or TAC from a liability they owe or may owe to a third party." The trial court found that section 2.4 operated as a guaranty. The court noted that the $170,000 ARA, supplied by Mitchell, would be reduced by the Bank only upon the principal debtor's failure to pay. The court further noted that upon satisfaction of the debt, any remaining balance in the ARA would be paid to Mitchell "free and clear of any obligation for payment of Loan No. 635110" (emphasis in original). The court found that the Defendants breached the Agreement by failing to make quarterly reports to Mitchell and concluded that Mitchell should be released as guarantor. III. ASSIGNMENTS OF ERROR The Defendants assign two errors on appeal. First, they assert that the district court erred in finding that section 2.4 under the Agreement constitutes a guaranty by Mitchell to the Bank for loan No. 635110. Second, they assert that the district court erred in finding that Mitchell should be released from his obligations as guarantor. On cross-appeal, Mitchell assigns one error. He asserts that in the event this court finds in favor of the Defendants, the district court erred in admitting certain parol evidence. Because we find that summary judgment in favor of Mitchell was proper, this cross-appeal is moot and we need not address it further. IV. ANALYSIS 1. STANDARD OF REVIEW Summary judgment is proper when the pleadings and evidence admitted at the *374 hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. NEBCO, Inc. v. Adams, 270 Neb. 484, 704 N.W.2d 777 (2005); Fraternal Order of Police v. County of Douglas, 270 Neb. 118, 699 N.W.2d 820 (2005). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. NEBCO, Inc. v. Adams, supra; Plowman v. Pratt, 268 Neb. 466, 684 N.W.2d 28 (2004). 2. SECTION 2.4 UNDER AGREEMENT The Defendants challenge the trial court's finding that section 2.4 under the Agreement constitutes a guaranty. They argue that section 2.4 is not a guaranty because it operates as either an earn-out provision or an indemnity clause. We disagree. (a) Section 2.4 as Guaranty A guaranty is a collateral undertaking by one person to answer for the payment of a debt or the performance of some contract or duty in case of the default of another person who is liable for such payment or performance in the first instance. Northern Bank v. Dowd, 252 Neb. 352, 562 N.W.2d 378 (1997); Chiles, Heider & Co. v. Pawnee Meadows, 217 Neb. 315, 350 N.W.2d 1 (1984). As such, a guaranty is basically a contract by which the guarantor promises to make payment if the principal debtor defaults. Northern Bank v. Dowd, supra. We rely on general principles of contract and guaranty law to determine the obligations of the guarantor. Rodehorst v. Gartner, 266 Neb. 842, 669 N.W.2d 679 (2003). Because a guaranty is a contract, it must be understood in light of the parties' intentions and the circumstances under which the guaranty was given. NEBCO, Inc. v. Adams, supra. In the instant case, section 2.4 functions as a guaranty by Mitchell for the unsecured portion of loan No. 635110 because Mitchell, as guarantor, provided the $170,000 to the Bank and promised to answer for up to $170,000 of the principal debtor's default. The terms under section 2.4 of the Agreement state that the $170,000 ARA may be used by the Bank only in connection with the uninsured portion of loan No. 635110. Under those terms, if the debtor fails to make proper payments to the Bank and loan No. 635110 goes into default, the ARA may be reduced by the Bank only to the extent that the Bank experienced any loss. Moreover, the evidence further indicates that section 2.4 is a guaranty because the remaining balance of the ARA is to be returned to Mitchell free and clear of any obligation upon 24 timely consecutive payments on loan No. 635110 or upon the loan's full payment. The Defendants argue on appeal that Mitchell cannot be a guarantor because "the identity of the debtor is not even established in the . . . Agreement." Brief for appellants at 22. This assertion is untrue. The Agreement expressly provides that the ARA in the amount of $170,000 is to be used only with "the uninsured portion of Loan No. 635110 with [the loan's] promissory note and related loan documents." The loan documents for loan No. 635110 expressly provide the name of the principal debtor. The Defendants also argued to the trial court that section 2.4 cannot operate as a guaranty because Mitchell promises to protect the Bank against loss or damage, not TAC and FCIC, the parties to the Agreement. As *375 noted by the trial court, "TFIN and TAC concede that Section 2.4 is beneficial to them in that it protects the value of [the Bank], a wholly-owned subsidiary of TFIN and TAC." Therefore, although Mitchell's promise to guarantee loan No. 635110 benefits the Bank, it also inures to the benefit of TFIN and TAC. As such, after viewing the evidence in the light most favorable to the Defendants, we find no error in the trial court's finding that there is no genuine issue of material fact regarding section 2.4 as a guaranty. (b) Section 2.4 as Earn-Out Provision The Defendants argue that section 2.4 operates as an earn-out provision, or price adjustment term, instead of a guaranty because the purchase price would be reduced by the $170,000 ARA upon the principal debtor's default. We find no merit to this argument. Nebraska statutory and case law does not define "earn-out" provision. However, as defined by the Practicing Law Institute: "An earnout provision makes a portion of the payment to the sellers contingent upon the target reaching specified milestones during a specified period after the closing. The milestones used are usually financial, such as net revenues, gross profits, EBIT, EBITDA, net income or earnings per share." Maryann A. Waryjas, Structuring and Negotiating Earn-Outs, Acquiring or Selling the Privately Held Company 2007, at 759, 761 (PLI Corporate Law & Practice, Course Handbook Series 2007). Earn-out provisions in merger-and-acquisition agreements have further been described as provisions that are "intended to accommodate the seller's desire for compensation for the anticipated future value of the transferred assets and the buyer's reciprocal desire to avoid overpaying for potential, but as yet unrealized, value." Highland Capital Mgt. LP v. Schneider, 8 N.Y.3d 406, 408 n. 1, 834 N.Y.S.2d 692, 693-94 n. 1, 866 N.E.2d 1020, 1021-22 n. 1 (2007). As explained in Robert M. Fogler & Rob Witwer, Buying, Selling, and Combining Businesses Under the Colorado Business Corporation Act, 33 Colo. Law. 73, 78 (Nov. 2004), in an earnout provision, "a portion of the purchase price depends on the success of the business during the year or two following the sale," and that is usually "tied to projected revenue or profit numbers." Furthermore, earn-out provisions alleviate the effects of information disparity by punishing a seller's withholding of information; they encourage seller shareholders to assist with transitional issues, and they discourage seller shareholders from inflating financial performance numbers. Id. Viewing the evidence in the light most favorable to the Defendants and giving them the benefit of all reasonable inferences, the evidence fails to prove that section 2.4 is an earn-out provision. The $170,000 ARA was not set aside by the Defendants for Mitchell as contingent payment upon the completion of specified milestones by the acquired business. Rather, the $170,000 ARA was set aside by Mitchell as security to the Defendants for the unsecured portion of loan No. 635110. Unlike an earn-out provision, which typically concerns the success of the entire business in the year or two following the sale, section 2.4 provides that the ARA in the instant case is to be utilized only when the principal debtor fails to make payments on the unsecured portion of loan No. 635110. The application of the ARA funds is in no way related to the overall performance of the acquired business. (c) Section 2.4 as Indemnity Provision The Defendants next argue that to the extent we determine that section 2.4 constitutes something more than an earnout provision, it is an indemnity clause. *376 They argue that section 2.4 is an indemnity provision because it protects TAC and TFIN should they incur potential obligation or suffer any loss due to the substandard loan. We also find no merit to this argument. Under Nebraska case law, if a contract of indemnity refers to and is founded on another contract, either existing or anticipated, it covenants to protect the promisee from some accrued or anticipated liability arising on the other contract. See Currency Services, Inc. v. Passer, 178 Neb. 286, 133 N.W.2d 19 (1965). Stated another way, the promise of the indemnitor is not to answer for the debt, default, or miscarriage of another, but may be to make good the loss resulting from such debt, default, or miscarriage. See, 28 C.J. Guaranty § 8 at 892 (1922); Assets Realization Co. v. Roth, 226 N.Y. 370, 123 N.E. 743 (1919); Eckhart v. Heier, et al., 37 S.D. 382, 158 N.W. 403 (1916). The distinction between a guaranty provision and an indemnity provision is explained as follows: [T]he promisor in an indemnity contract undertakes to protect his promise against loss or damage through a liability on the part of the latter to a third person, while the undertaking of a guarantor or surety is to protect the promisee against loss or damage through the failure of a third person to carry out his obligations to the promisee. 38 Am.Jur.2d Guaranty § 14 at 882 (1999). In the instant case, section 2.4 does not operate as an indemnity provision. Mitchell did not undertake to protect TAC against loss or damage caused by liability on the part of TAC to a third person. On the contrary, Mitchell undertook to protect the Bank, a wholly owned subsidiary of TAC, against loss or damage caused by liability on the part of a third party to TAC. Whereas the promise of an indemnitor is to "make good any loss resulting from non-payment," Mitchell's promise is to answer for the debt, default, and miscarriage of another. See Eckhart v. Heier, et al., 37 S.D. at 384, 158 N.W. at 403. As such, we find no error by the trial court in concluding that section 2.4 was not an indemnity provision. 3. RELEASE OF GUARANTOR The Defendants assert that in the event this court finds section 2.4 to be a guaranty, the trial court erred in releasing Mitchell as a guarantor. The Defendants argue that a genuine issue of material fact exists regarding whether the Bank breached its contractual obligation to Mitchell under the Agreement. We disagree. A court interpreting a contract must first determine as a matter of law whether the contract is ambiguous. Kluver v. Deaver, 271 Neb. 595, 714 N.W.2d 1 (2006). A contract written in clear and unambiguous language is not subject to interpretation or construction and must be enforced according to its terms. Id. A contract is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings. Id. A contract must receive a reasonable construction and must be construed as a whole, and if possible, effect must be given to every part of the contract. Id. The trial court concluded the plain meaning of section 2.4(x) to be that loan No. 635110 is in default when the payments are more than 30 days past due. It based this finding on section 2.4(x), which provides that any remaining balance of the ARA should be paid to Mitchell "if the borrower . . . should make 24 consecutive timely monthly payments (not more than 30 days past due)" (emphasis supplied). Under the trial court's holding, a payment *377 is considered timely unless it is over 30 days past due. At that point, it is no longer timely and the loan is considered to be in default. Construing the Agreement as a whole, we find no error in the trial court's finding that the term "default" means "more than 30 days past due." Mitchell asserts that the Bank breached its obligations under the Agreement because the principal debtor defaulted on the loan and the Bank failed to notify Mitchell of the principal debtor's default. As a result, he claims the trial court correctly held that he should be released as guarantor. To determine whether the trial court correctly determined that Mitchell is not liable for the principal debtor's failure to pay on loan No. 635110, we must determine the obligations of the parties. The Nebraska Supreme Court has held that a guarantor is not liable on his own contract when the creditor has violated his own obligations and deprived the guarantor of the means of preventing the loss protected by the guaranty. National Bank of Commerce Trust & Say. Assn. v. Katleman, 201 Neb. 165, 266 N.W.2d 736 (1978). In the instant case, neither party disputes the fact that the principal debtor defaulted on the loan. TFIN and TAC initially stated in a letter that the principal debtor defaulted on the loan after the closing of the Agreement, but later retracted this assertion in a letter claiming the principal debtor defaulted on the loan prior to the March 2000 closing of the Agreement. The evidence shows that the Defendants formally notified the principal debtor by letter in March 2001 that loan No. 635110 was in default. As such, the evidence is undisputed that loan No. 635110 was in default. Next, we look to the parties' obligations under the Agreement. Section 2.4(ii) provides, "[A]s long as Loan No. 635110 is not in default, [the Bank] shall distribute and pay to [Mitchell] interest on the [ARA]." Section 2.4(xi) further provides, "[The Bank] shall make quarterly reports to [Mitchell] from such time [as] Loan No. 635110 is in default until the [ARA] is exhausted." As such, from the date of the Agreement's closing in March 2000, the Bank was under an obligation to send Mitchell, at an interval of four times a year, either payments from the ARA interest or reports indicating the loan's default status. The evidence indicates that the Bank did not meet either obligation at any time because Mitchell never received interest payments or quarterly reports. As such, because the Defendants violated their own obligations under the Agreement, Mitchell, as guarantor, is not liable. See National Bank of Commerce Trust & Say. Assn. v. Katleman, supra. The Defendants argue that "factual issues exist" regarding whether Mitchell had notice of the default. Brief for appellants at 30. They appear to imply that if Mitchell had notice of a default at the time of the closing, such notice would alleviate their responsibility to make quarterly reports. We note that the Defendants fail to specify in their brief which factual issues indicate that Mitchell had notice of the default prior to the closing of the Agreement. To the extent that the Defendants are referring to Mitchell's knowledge, as of the February 29, 2000, board meeting, that loan No. 635110 was past due, we find such knowledge insufficient to constitute notice of default. On February 29, loan No. 635110 was only 16 days past due, and according to the language of the Agreement, it was not yet in default. To the extent that the Defendants are referring to an alleged telephone discussion between the Bank's president and Mitchell, whereby the president alleges Mitchell was told that the loan was "delinquent," we also *378 find such evidence insufficient to constitute notice of default. The term "delinquent" does not necessarily indicate that the loan was more than 30 days past due. Moreover, we further note that the Defendants had a continuing obligation to inform Mitchell of the loan's status in that the Agreement required they make quarterly reports. Accordingly, we find no error in the trial court's finding that there is no genuine issue of material fact in dispute regarding the breach of the Agreement by the Defendants. The principal debtor defaulted on the loan, section 2.4 required that the Defendants make quarterly reports to Mitchell regarding a default on the loan, and no reports were made. As such, we find no error in upholding the release of Mitchell as guarantor. V. CONCLUSION We conclude that the trial court did not err in granting summary judgment in favor of Mitchell and in denying partial summary judgment to the Defendants. There is no genuine issue of material fact in dispute regarding the nature of section 2.4 as a guaranty provision. We further conclude that there is no genuine issue of material fact in dispute regarding the Defendants' breach of the Agreement. As such, we affirm. AFFIRMED.

84 F.3d 432 Simonv.Beasley NO. 95-50561 United States Court of Appeals,Fifth Circuit. Apr 05, 1996 Appeal From: W.D.Tex., No. A-95-CV-181 1 AFFIRMED.

3 F.3d 273 CHEYENNE RIVER SIOUX TRIBE, Appellant/Cross-Appellee,v.STATE OF SOUTH DAKOTA; George S. Michelson, Governor,personally and in his official capacity; Mark W. Barnett,Attorney General, personally and in his official capacity;Grant Gormley, State Negotiator, personally and in hisofficial capacity; John Guhim, State Negotiator, personallyand in his official capacity, Appellees/Cross-Appellants. Nos. 93-1224, 93-1521. United States Court of Appeals,Eighth Circuit. Submitted June 16, 1993.Decided Aug. 23, 1993.Rehearing and Suggestion forRehearing En Banc Denied Oct. 4, 1993. Mark C. Van Norman, Eagle Butte, SD, argued (Steven C. Emery and Timothy W. Joranko, on the brief), for appellant/cross-appellee. Lawrence E. Long, Chief Deputy Atty. Gen., Pierre, SD, argued (Richard J. Helsper, Brookings, SD, on the brief), for appellees/cross-appellants. Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and HANSEN, Circuit Judge. McMILLIAN, Circuit Judge. 1 The Cheyenne River Sioux Tribe (tribe) appeals from an order entered in the United States District Court for the District of South Dakota1 which denied the tribe's motion for a preliminary injunction and summary judgment. 830 F.Supp. 523. The tribe filed this action in federal district court against the State of South Dakota and several state officials, in their official and personal capacities (collectively referred to as the state), pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. Sec. 2701 et seq. (1988) (IGRA). The tribe sought to remedy the alleged failure of the state to negotiate in good faith regarding certain gaming activities to be conducted on and off the tribe's reservation lands and to reach an agreement on a tribal-state gaming compact. The tribe appeals from the order denying it preliminary injunctive relief and summary judgment, while the state cross-appeals the denial of its motion for summary judgment. We affirm the order of the district court for the reasons discussed below. I. 2 On January 9, 1991, the tribe requested that the state negotiate a tribal-state compact to allow the tribe to operate gaming facilities on the reservation under the IGRA. The IGRA was enacted after a decision by the Supreme Court in 1987 which held that California could not enforce state and local gaming laws against the Indian tribes because California law only regulated and did not prohibit gaming. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221-22, 107 S.Ct. 1083, 1094-95, 94 L.Ed.2d 244 (1987). This case established that in states that permit gambling Indian tribes have the authority to license and operate gaming on Indian lands free from state regulation. Id. This opened the door to extensive gambling on Indian lands. In 1988, Congress responded to the decision by enacting the IGRA. 3 The IGRA divides gaming into three classes: (1) class I gaming includes social gaming for minimal prizes and traditional Indian gaming conducted at ceremonies or celebrations; (2) class II gaming includes bingo, lotto, pull-tabs, punch boards, tip jars, and non-banking2 card games, as well as banking card games operated on or before May 1, 1988; and (3) class III gaming includes casino-type gambling, parimutuel horse and dog racing, lotteries, and all other forms of gaming that are not class I or class II gaming. 25 U.S.C. Sec. 2703(6)-(8). Class I gaming on Indian lands is within the exclusive jurisdiction of the tribes and is not subject to the IGRA. Id. Sec. 2710(a)(1). Class II gaming on Indian lands is within the jurisdiction of the tribes, but is subject to the provisions of the IGRA, including oversight by the National Indian Gaming Commission within the Department of the Interior. Id. Sec. 2710(a)(2), (b)(1)(A), (B). Class III gaming activities are lawful on Indian lands only if authorized by a tribal ordinance or resolution, located in a state that permits such gaming for any purpose by any person, organization, or entity, and conducted in conformance with a tribal-state compact entered into by the tribe and state. Id. Sec. 2710(d)(1)(A)-(C). 4 The IGRA provides a "framework" for negotiation of tribal-state gaming compacts--the tribe requests the state to enter into negotiations; upon receiving such a request, the state "shall" negotiate with the tribe "in good faith" to enter such a compact. Id. Sec. 2710(d)(3)(A). Any such compact takes effect only after approval by the Secretary of the Department of the Interior. Id. Sec. 2710(d)(4). Tribal-state compacts can include provisions regarding the application of criminal and civil laws and regulations, allocation of criminal and civil jurisdiction between the tribe and state, taxation by the tribe, remedies for breach of contract, standards for the operation and maintenance of gaming facilities including licensing, and any other subjects directly related to the operation of gaming activities. Id. Sec. 2710(d)(3)(C). 5 The IGRA provides the United States district courts with jurisdiction over "any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact ... or to conduct such negotiations in good faith." Id. Sec. 2710(d)(7)(A)(i). Upon the introduction of evidence by the tribe that negotiations began more than 180 days before, no tribal-state compact was concluded, and the state did not respond to its request for negotiations or did not respond in good faith, the burden of proof shifts to the state to prove that it has negotiated in good faith. Id. Sec. 2710(d)(7)(B)(ii). If the district court finds that the state has failed to negotiate in good faith, the district court "shall order the State and Tribe to conclude such a compact within a 60-day period." Id. Sec. 2710(d)(7)(B)(iii). This is the injunctive relief sought by the tribe in the present case. 6 The IGRA further provides that if the tribe and state fail to conclude a compact after 60 days, the tribe and the state then each submits to a mediator appointed by the district court a proposed compact that represents their last best offer; the mediator then selects the one which best comports with the IGRA and presents it to the tribe and state. Id. Sec. 2710(d)(7)(B)(iv), (v). If the state consents to the proposed compact submitted by the mediator within 60 days, then the proposed compact becomes the tribal-state compact. Id. Sec. 2710(d)(7)(B)(vi). However, if the state does not consent within 60 days, then the mediator notifies the Secretary of the Department of the Interior, who, in consultation with the tribe, prescribes procedures consistent with the proposed compact selected by the mediator, the IGRA, and relevant state law, under which the tribe can then conduct class III gaming on Indian lands over which the tribe has jurisdiction. Id. Sec. 2710(d)(7)(B)(vii). 7 Since 1989, South Dakota has allowed state lotteries, video lottery, limited card games, slot machines, parimutuel horse and dog racing, and simulcasting. South Dakota has located within its boundaries nine federally recognized tribes.3 The first tribe to request negotiations toward a class III gaming compact under the IGRA was the Flandreau Santee Tribe in June 1989. Negotiations between the state and the Flandreau Santee Tribe broke down after about five months and the tribe sued South Dakota under the IGRA; however, the case was finally settled by the execution of a compact between the state and the tribe, approved by the Bureau of Indian Affairs (BIA) on July 26, 1990. Similar gaming compacts have been negotiated and executed between the state and five other tribes--the Sisseton-Wahpeton Sioux Tribe, March 1991; the Yankton Sioux Tribe, June 1991; the Lower Brule Sioux Tribe, September 1991; the Crow Creek Sioux Tribe, April 1992; and the Standing Rock Sioux Tribe, August 1992. The only other location in South Dakota to offer gaming similar to class III gaming under IGRA is the historic community of Deadwood. 8 When the Cheyenne River Sioux Tribe requested the state to negotiate a tribal-state compact, five "official" negotiations between tribal and state officials were held through August 1991. Tribal officials also met with the governor on three occasions before filing suit against the state. The tribe alleges the state refused to negotiate in good faith because the state adopted a "rigid" negotiation strategy by offering the tribe the so-called "Flandreau compact,"4 which the state used as a "model" in all subsequent tribal-state compact negotiations. If the tribe wanted more favorable terms than those in the Flandreau compact, the state demanded certain concessions, for example, expanded state criminal jurisdiction. The tribe contends the state refused to consider the particular circumstances and interests of the Cheyenne River Sioux Tribe. The tribe argues there are significant differences between the Cheyenne River Sioux and Flandreau Santee Sioux Tribes that make it unreasonable to impose the Flandreau compact on the Cheyenne River Sioux Tribe. The Cheyenne River Sioux reservation is about the size of Connecticut and is located in a remote western part of the state, far from population centers, which are located in the southeastern corner of the state (near the Iowa and Nebraska borders). The Cheyenne River Sioux Tribe has at least 10 times the members of the Flandreau Santee Sioux Tribe and, unlike the Flandreau Santee Sioux Tribe, has a mature tribal government, including tribal police and tribal courts. In addition, the tribe alleges the state refused to negotiate a tribal-state compact to include keno and other games permitted by state law, higher bet limits, and gaming sites on commercially valuable Indian trust lands located near Fort Pierre and Pluma. 9 The tribe filed the present action in April 1992 alleging violation of the IGRA and 42 U.S.C. Sec. 1983 and seeking declaratory relief and injunctive relief ordering the tribe and state to conclude a tribal-state gaming compact within 60 days. In May 1992 the tribe moved for summary judgment and preliminary injunctive relief on the ground that the state's refusal to negotiate in good faith had prevented the tribe from operating a gaming facility, thus depriving the tribe of gambling revenues and other opportunities for economic development. The state also moved for summary judgment arguing the action was barred by the eleventh amendment and the IGRA violated the tenth amendment. 10 The district court held the eleventh amendment barred the Sec. 1983 claim but not the IGRA claim. Cheyenne River Sioux Tribe v. South Dakota, 830 F.Supp. 523, 525-26 (D.S.D.1993) (Cheyenne River ). The district court held the IGRA did not violate the tenth amendment because the IGRA does not force the state to negotiate compacts with the tribes or force the state to permit tribal gambling if state law prohibits gambling in general. Id. 830 F.Supp. at 526-27. Further the district court found the state negotiated with the tribe in good faith--that bet limits are set by state law, video keno and traditional keno are not the same game and state law does not permit traditional keno, and there are genuine issues of material fact in dispute about whether the Fort Pierre and Pluma lands are Indian lands within the meaning of the IGRA.5 Id. 830 F.Supp. at 527-29. For these reasons, the district court denied the tribe's motions for preliminary injunctive relief and summary judgment and the state's motion for summary judgment, and stayed the action to accommodate further negotiations. This appeal by the tribe and cross-appeal by the state followed. 11 The tribe argues the district court abused its discretion in denying its motions for summary judgment and for preliminary injunctive relief because it misconstrued the IGRA requirement of good faith and the IGRA definition of Indian lands. The state argues the district court erred by not applying eleventh amendment immunity to this issue and by not holding the IGRA unconstitutional under the tenth amendment. 12 This court has appellate jurisdiction over the order denying the motion for preliminary injunctive relief pursuant to 28 U.S.C. Sec. 1292(a)(1). In addition, we may review the order denying both motions for summary judgment as well because "where the injunction is interdependent with the remainder of the appealed order, we may review the entire order insofar as it has been appealed." Union National Bank v. Federal National Mortgage Ass'n, 860 F.2d 847, 852 (8th Cir.1988) (order dismissing tortious interference and RICO claims considered with order denying preliminary injunction); see also TransWorld Airlines, Inc. v. American Coupon Exchange, Inc., 913 F.2d 676, 680 (9th Cir.1990) (denial of summary judgment considered with injunction). We review the denial of injunctive relief for an abuse of discretion. Tenant Affairs Bd. v. Pierce, 693 F.2d 797, 798 (8th Cir.1982); Sperry Corp. v. City of Minneapolis, 680 F.2d 1234, 1237 (8th Cir.1982); FTC v. National Tea Co., 603 F.2d 694, 696 (8th Cir.1979). The district court's denial of summary judgment will be reviewed de novo as well as its determinations of state law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986) (summary judgment); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986) (summary judgment); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992) (summary judgment); Ford v. Dowd, 931 F.2d 1286, 1289 (8th Cir.1991) (summary judgment); see Salve Regina College v. Russell, 499 U.S. 225, 231-32, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991) (state law). II. A. Keno 13 The district court found the state does not permit the traditional form of keno as a legalized form of gambling in South Dakota. Cheyenne River, 830 F.Supp. at 528. The only form of keno permitted by the state is video keno; therefore, the district court concluded the state was required to negotiate only the subject of video keno and not traditional keno. Id. 14 The tribe argues the district court erroneously construed the IGRA to limit the scope of class III gaming to those particular forms that state law permits. The tribe contends that because the state permits a form of keno (video keno) to be played, the tribe should be allowed to host traditional keno. In addition, the tribe introduced evidence that charities often advertise and operate "Las Vegas" nights which include casino-type games such as craps and blackjack. For these reasons the tribe argues the state could not in good faith flatly refuse to negotiate about the tribe's conducting similar casino-type gambling and traditional keno. 15 The state argues that "traditional" keno is illegal in South Dakota and in any event is fundamentally different than video keno. No other tribes in the state are permitted to operate "traditional" keno, and the state argues it would be unfair to the other tribes to permit the Cheyenne River Sioux Tribe to do so. With regard to the allegation that charities host casino nights, the state contends that state law only permits charities to operate bingo and raffles, not casino-type gambling, and that if in fact casino-type gambling is conducted by charities, it is illegal. 16 We agree with the state that it need not negotiate traditional keno if only video keno is permitted in South Dakota. The "such gaming" language of 25 U.S.C. Sec. 2710(d)(1)(B) does not require the state to negotiate with respect to forms of gaming it does not presently permit. Because video keno and traditional keno are not the same and video keno is the only form of keno allowed under state law, it would be illegal, in addition to being unfair to the other tribes, for the tribe to offer traditional keno to its patrons. Therefore, we agree with the district court that the state did not refuse to negotiate in good faith on the tribe's operation of traditional keno. B. Bet limits 17 The district court found the issue of bet limits is not subject to negotiation because bet limits are established by state law. Cheyenne River, 830 F.Supp. at 527-28. The district court held the record did not support a finding of bad faith because the state refused to negotiate bet limits. Id. 18 The tribe argues that even though the state officials repeatedly stated that bet limits were subject to negotiation, the governor would not negotiate bet limits with the tribe. The tribe argues the state's false representation that bet limits were subject to negotiation, as well as its failure to negotiate bet limits, illustrates the state's failure to negotiate in good faith. 19 The state argues that state law establishes bet limits and that the state is not required to permit the tribe to operate under higher bet limits than other tribes in the state or Deadwood. The state indicated that it would not agree to any compact that included bet limits in excess of the state statutory limit of $5. The state distinguishes the "grandfathered" blackjack games at issue in United States v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358 (8th Cir.1990) (higher bet limits on games established before effective date of IGRA). 20 We agree with the state that it need not negotiate regarding bet limits because bet limits are established by state law. The state is not obligated to allow the tribe to operate under bet limits higher than the state statutory limit of $5. Accordingly, we agree with the district court that the state did not refuse to negotiate in good faith on the issue of higher bet limits. C. Casino Locations 21 The tribe sought to obtain a compact for two off-reservation sites, one near Fort Pierre and the other at Pluma in the Black Hills. The district court denied summary judgment on the issue of casino locations because there were genuine issues of disputed material fact as well as legal issues. Cheyenne River, --- F.Supp. at ---- slip op. at 12. The National Indian Gaming Commission has defined Indian lands as: 22 (a) Land within the limits of an Indian reservation or 23 (b) Land over which an Indian tribe exercises governmental power and that is either-- 24 (1) Held in trust by the United States for the benefit of any Indian tribe or individual; or 25 (2) Held by an Indian tribe or individual subject to restriction by the United States against alienation. 26 25 C.F.R. Sec. 502.12. The district court explained that the Pluma and Fort Pierre sites do not satisfy part (a); however, the district court decided that it could not determine the status of the sites under part (b) without more facts. Cheyenne River, 830 F.Supp. at 528. Therefore, the district court held that summary judgment was not warranted. Id. 27 The tribe contends that the district court misinterpreted the term "Indian lands" as used in the IGRA, 25 U.S.C. Sec. 2703(4), to not include these sites. The tribe argues Indian law differentiates between trust lands and restricted lands and argues the IGRA definition of "Indian lands" requires proof of tribal exercise of governmental power only with respect to restricted lands, not trust lands. The tribe asserts that the two off-reservation sites are trust lands and that the tribe exercises governmental power over these lands; therefore, the tribe argues these lands are "Indian lands" within the meaning of the IGRA and thus the state could not in good faith flatly refuse to negotiate about the tribe's locating gaming facilities there. 28 The state argues the correct construction of the definition of "Indian lands" in the IGRA requires land be both within the boundaries of the reservation and held in trust or as restricted land over which the tribe exercises governmental power. It is undisputed that the Pluma and Fort Pierre sites are located outside the boundaries of the Cheyenne River Sioux Reservation; therefore, the state argues that it is irrelevant whether or not the title is held in trust or the land is restricted land or whether the tribe exercises governmental control over it. 29 We disagree with the state's contention that land must be located within an Indian reservation to be considered Indian lands under the IGRA. Pursuant to the definition of the Indian Gaming Commission, land must either be within an Indian reservation or be trust or restricted land over which an Indian tribe exercises governmental power. However, we agree with the district court that summary judgment was not appropriate without more facts to clarify the status of the Fort Pierre and Pluma lands under part (b) of the Indian Gaming Commission's definition. III. 30 On cross-appeal the state argues the tribe's action is barred by the eleventh amendment and relies upon Poarch Band of Creek Indians v. Alabama, 776 F.Supp. 550, 554-63 (S.D.Ala.1991) (Poarch ), appeal filed, No. 92-6244 (11th Cir. argued Jan. 7, 1993).6 The state argues the district court erred in holding it had waived its eleventh amendment immunity by engaging in tribal-state compact negotiations with the tribe and argues the state can only effectively waive its eleventh amendment immunity through legislative action. 31 The tribe argues the district court correctly found the state has waived its eleventh amendment immunity by conducting tribal-state compact negotiations and by seeking to take advantage of the present litigation for its own benefit. The tribe also argues the district court correctly held that Congress had abrogated the states' eleventh amendment immunity by enacting the IGRA pursuant to its power under the Indian Commerce Clause, citing Seminole Tribe v. Florida, 801 F.Supp. 655, 657-63 (S.D.Fla.1992) (Seminole Tribe ) (holding Congress did abrogate the states' eleventh amendment immunity by enacting the IGRA and had the constitutional power to do so pursuant to the Indian Commerce Clause), appeal filed, No. 92-4652 (11th Cir. argued Jan. 7, 1993). 32 The court in Seminole Tribe held that "in expressly providing for federal jurisdiction over claims brought by Indian tribes against States to compel good faith negotiations under IGRA, Congress made its intention to abrogate the States' [eleventh amendment] immunity in [25 U.S.C. Sec. 2710(d)(7)(A)(i) ] 'unmistakably clear in the language of the statute.' " Id. at 658, citing Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985). The court further held Congress had the power to abrogate the states' eleventh amendment immunity, stating: 33 [g]iven Congress' plenary authority over Indian relations, explicitly noted in the text of the Constitution at Article I, Sec. 8, cl. 3, and the uniquely federal issues raised when such authority is exercised, considered in conjunction with the principles enunciated by the Supreme Court in Pennsylvania v. Union Gas Co., 491 U.S. 1 [109 S.Ct. 2273, 105 L.Ed.2d 1] (1989), ... Congress, when acting pursuant to the Indian Commerce Clause, has the power to abrogate the States' [eleventh amendment] immunity. 34 801 F.Supp. at 658. While a few courts have held otherwise,7 we agree with the holding in Seminole Tribe and the district court that the eleventh amendment does not preclude an action against the state under the IGRA. We believe the express provision for federal jurisdiction over claims under the IGRA is sufficient to abrogate the states' eleventh amendment immunity. In addition, the state actively engaged in negotiating tribal-state compacts and has reaped the benefits from these negotiations by being able to supervise how Indian gaming will be conducted within the state. Therefore, we hold the present action is not barred by the eleventh amendment. IV. 35 The state also contends that the IGRA violates the tenth amendment by forcing states to negotiate tribal-state gaming compacts. The state argues that because the IGRA imposes mandatory duties on the states, it is an impermissibly coercive scheme. The tribe argues the district court correctly held the IGRA does not force the state to do anything because the state can refuse to respond to the tribe's request to negotiate. The tribe adds that the IGRA permissibly offers the states incentives to negotiate and conclude tribal-state compacts on gambling, but it does not force them to do so. 36 We agree with the district court that the IGRA "gives states the right to get involved in negotiating a gaming compact because of the obvious state interest in gaming casino operations within the state boundaries, but does not compel it." Cheyenne River, 830 F.Supp. at 526. The IGRA provides several alternatives when an action is brought by an Indian tribe against a state. First, the state and tribe can continue to negotiate until a compact is agreed upon. Second, the state and tribe can negotiate, but fail to agree on a compact in which case the court must determine whether the state has negotiated in good faith and the action is either dismissed or stayed for additional negotiations. Third, if a state refuses to negotiate at all, the court can require that a compact be concluded within 60 days and if not, a mediator will select the tribe's proposed compact if it complies with applicable federal law. Therefore, we hold the IGRA does not force states to compact with Indian tribes regarding Indian gaming and does not violate the tenth amendment. See New York v. United States, --- U.S. ----, ---- - ----, 112 S.Ct. 2408, 2418-19, 120 L.Ed.2d 120 (1992); South Dakota v. Dole, 483 U.S. 203, 210-11, 107 S.Ct. 2793, 2797-98, 97 L.Ed.2d 171 (1987). 37 Accordingly, the order of the district court denying summary judgment and denying preliminary injunctive relief is affirmed. The cross-appeal is denied. 1 Honorable John B. Jones, Chief Judge, United States District Court for the District of South Dakota 2 Banking card games are those where players play against the house and the house acts as banker, e.g. blackjack. Non-banking card games are those games where players play against each other rather than against the house, e.g. poker 3 Tribes located in South Dakota include the Flandreau Santee Sioux Tribe, Yankton Sioux Tribe, Sisseton-Wahpeton Sioux Tribe, Crow Creek Sioux Tribe, Lower Brule Sioux Tribe, Standing Rock Sioux Tribe, Oglala Sioux Tribe, Rosebud Sioux Tribe, and Cheyenne River Sioux Tribe 4 The Flandreau compact was entered into by the state and the Flandreau Santee Sioux Tribe to allow that tribe to open a casino at Flandreau, South Dakota, in 1991. The Flandreau compact is summarized as follows: A. The Tribe is allowed initially to operate 180 gaming devices to be split at the Tribe's choice between slot machines, poker tables and blackjack tables. B. If the Tribe can demonstrate that their devices average at least $63.75 per day of play, then they are entitled to add an additional 70 devices, bringing the total to 250 devices. C. The blackjack and poker games and the slot machines are to be operated in accordance with state regulations covering pot and bet limits, payout limits and hours of operation. D. The State conducts background investigations for all potential tribal gaming operators. These persons must meet state licensing requirements. An arbitrations procedure may be invoked to handle licensing disputes. E. The Flandreau Tribal Gaming Commission handles discipline of licensees. However, there is oversight by the executive director of the State Gaming Commission. The executive director has the ability to require the Tribal Gaming Commission to impose greater penalties in discipline situations if he/she believes that the penalties imposed by the Tribe are not severe enough. F. If state bet limits are increased or decreased, the Tribe's bet limits are increased or decreased automatically. G. If the State authorizes new or different games, the Tribe is entitled upon amendment of the compact to offer such games. H. The 180 gaming devices authorized by the compact is based upon twice the number that one individual can control in Deadwood. If the maximum gaming device numbers for individuals in Deadwood is increased or decreased, then the Flandreau Tribe is entitled automatically to a proportional increase or decrease in authorized device numbers. I. The compact also deals with civil and criminal jurisdiction related to gaming. The jurisdiction is basically agreed to be as follows: Tribal member criminal defendants will be proceeded against in federal or tribal court. All others will be proceeded against in state court except consistent with State v. Larson, 455 N.W.2d 600 (S.D.1990). Civilly, disputes between tribal members will be heard in tribal court. If either party to the dispute is not a tribal member, the case will be heard in state court unless the parties stipulate the case to be heard in tribal court. Tribal sovereign immunity is not waived. 5 Fort Pierre, South Dakota is located in the center of the state, near the state capital, Pierre. Pluma, South Dakota is located in the Black Hills area in western South Dakota near Deadwood 6 Poarch Band of Creek Indians v. Alabama, 776 F.Supp. 550, 554-63 (S.D.Ala.1991), held that the eleventh amendment applies to actions by Indian tribes against the states, that Congress had not abrogated the state's eleventh amendment immunity by enacting the IGRA, the state had not consented to such suit, and that a suit against state officials was in fact a suit against the state and thus not excepted by the Ex parte Young doctrine 7 Ponca Tribe v. Oklahoma, No. CIV 92-988-T (W.D.Okla. Sept. 8, 1992); Sault Ste. Marie Tribe of Chippewa Indians v. Michigan, 800 F.Supp. 1484 (W.D.Mich.1992)

224 U.S. 448 (1912) MULLEN v. UNITED STATES. No. 404. Supreme Court of United States. Argued October 12, 13, 1911. Decided April 15, 1912. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. *449 Mr. J.C. Stone, Mr. Robert J. Boone and Mr. S.T. Bledsoe, with whom Mr. J.R. Cottingham was on the brief, for appellants.[1] The Solicitor General and Mr. A.N. Frost and Mr. Harlow A. Leekley, Special Assistants to the Attorney General, for the United States.[1] MR. JUSTICE HUGHES delivered the opinion of the court. This suit was brought by the United States to cancel certain conveyances of allotted lands, made by Choctaw Indians in alleged violation of restrictions. The Circuit Court sustained a demurrer to the bill upon the grounds that the United States was not entitled to maintain a suit of this character; that there was a defect of parties, owing to the absence of the Indian grantors, and that the bill was multifarious. This judgment was reversed by the Circuit Court of Appeals, which directed the trial court to proceed with the cause in accordance with its opinion. United States v. Allen, and similar cases, 179 Fed. Rep. 13. An appeal to this court is taken by certain defendants under § 3 of the act of June 25, 1910, c. 408, 36 Stat. 837. The lands, conveyed to the appellants, are described as those which had been allotted to Choctaws of the full-blood, deceased, and the conveyances were made by their heirs (also Choctaws of the full-blood) prior to April 26, 1906. As early as 1786 (January 3) a treaty was made with the representatives of the Choctaws by which it was acknowledged that these Indians were under the protection *450 of the United States and it was provided that for their "benefit and comfort" and for the "prevention of injuries and oppressions" the United States should have "the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper." 7 Stat. 21. By the treaty of 1820 (October 18) in order "to promote the civilization of the Choctaw Indians, by the establishment of schools amongst them; and to perpetuate them as a nation, by exchanging, for a small part of their land here, a country beyond the Mississippi River, where all, who live by hunting and will not work, may be collected and settled together," there was ceded to the Choctaws a tract west of the Mississippi situated between the Arkansas and Red rivers. 7 Stat. 210. In furtherance of this purpose, another treaty was made in 1830 (September 27) by which it was agreed that the United States should "cause to be conveyed to the Choctaw Nation a tract of country west of the Mississippi River, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it," and the Choctaws ceded to the United States all their lands east of the Mississippi and promised to remove beyond that river as soon as possible. 7 Stat. 333, 334. In 1837 (January 17), with the approval of the President and Senate of the United States, an agreement was made between the Choctaws and the Chickasaws that the latter should have the privilege of forming a district within the limits of the Choctaw country "to be held on the same terms that the Choctaws now hold it, except the right of disposing of it, which is held in common with the Choctaws and Chickasaws, to be called the Chickasaw district of the Choctaw Nation." 11 Stat. 573. Controversies having arisen between these tribes, a treaty was made in 1855 (June 22) with the representatives of both, defining boundaries and providing for the settlement of differences. This contained the stipulation: "And pursuant to an act *451 of Congress approved May 28, 1830, the United States do hereby forever secure and guarantee the lands embraced within the said limits, to the members of the Choctaw and Chickasaw tribes, their heirs and successors, to be held in common; so that each and every member of either tribe shall have an equal, undivided interest in the whole; Provided, however, no part thereof shall ever be sold without the consent of both tribes; and that said land shall revert to the United States if said Indians and their heirs become extinct, or abandon the same." 11 Stat. 612. After the Civil War, a new treaty was entered into reaffirming the obligations arising out of prior agreements and legislation. April 28, 1866, 14 Stat. 765, 774. While this treaty contemplated allotments in severalty and made provision to that end, effective action was not taken until the legislation of 1893, and subsequent years, relating to the Five Civilized Tribes, which embodied the policy of individual allotments and the dissolution of the tribal governments — made necessary by the changed conditions in the Indian country. Acts of March 3, 1893, c. 209, 27 Stat. 645; June 10, 1896, c. 398, 29 Stat. 321, 339; June 7, 1897, c. 3, 30 Stat. 62, 64; June 28, 1898, c. 517, 30 Stat. 495. In the case of the Choctaws and Chickasaws, as in that of the other tribes, the scheme of allotments embraced certain restrictions upon the right of alienation which Congress deemed necessary for the suitable protection of the allottees. By virtue of the relation of the United States to these Indians (Choctaw Nation v. United States, 119 U.S. 1, 28; United States v. Choctaw Nation and Chickasaw Nation, 179 U.S. 494, 532), and the obligations it has assumed, it is entitled to invoke the equity jurisdiction of its courts for the purpose of enforcing these restrictions. The Indian grantors, being represented by the Government, were not necessary parties, and in the interest of the convenient administration of justice it was competent to *452 embrace in one suit a class of transactions presenting the same question for determination. Heckman v. United States, ante, p. 413. The question remains whether, in the execution of the conveyances to the appellants, the restrictions imposed by Congress have been violated. The Dawes Commission, constituted by the act of 1893, entered into an agreement with the Choctaws and Chickasaws — known as the Atoka agreement — which was approved by Congress and incorporated in § 29 of the act of June 28, 1898. 30 Stat. 505. There was, however, a supplemental agreement, found in the act of July 1, 1902, 32 Stat. 641, c. 1362, which contains the restrictions in force at the time of the conveyances described in the bill. This supplemental agreement provided that there should be allotted to each member of the Choctaw and Chickasaw tribes land equal in value to 320 acres of the average allottable land of these tribes; and to each Choctaw and Chickasaw freedman, land equal in value to forty acres. The scheme defined two classes of cases, (1) allotments made to members of the tribes, and to freedmen, living at the time of allotment, and (2) allotments made in the case of those whose names appeared upon the tribal rolls but who had died after the ratification of the agreement and before the actual allotment had been made. With respect to allotments to living members, it was provided that the allottee should designate 160 acres of the allotted lands as a homestead, for which separate certificate and patent should issue. And the restrictions upon the right of alienation of the allotted lands are found in paragraphs 12, 13, 15 and 16 of the supplemental agreement, as follows: "12. Each member of said tribes shall, at the time of the selection of his allotment, designate as a homestead out of said allotment land equal in value to one hundred *453 and sixty acres of the average allottable land of the Choctaw and Chickasaw nations, as nearly as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment, and separate certificate and patent shall issue for said homestead. "13. The allotment of each Choctaw and Chickasaw freedman shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment. "15. Lands allotted to members and freedmen shall not be affected or encumbered by any deed, debt, or obligation of any character contracted prior to the time at which said land may be alienated under this Act, nor shall said lands be sold except as herein provided. "16. All lands allotted to the members of said tribes, except such land as is set aside to each for a homestead as herein provided, shall be alienable after issuance of patent as follows: One-fourth in acreage in one year, one-fourth in acreage in three years, and the balance in five years; in each case from date of patent; Provided, That such land shall not be alienable by the allottee or his heirs at any time before the expiration of the Choctaw and Chickasaw tribal governments for less than its appraised value." It will be observed that the homestead lands are made inalienable "during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment." The period of restriction is thus definitely limited, and the clear implication is that when the prescribed period expired the lands were to become alienable; that is, by the heirs of the allottee upon his death, or by the allottee himself at the end of the twenty-one years. Thus, with respect to homestead lands, the supplemental agreement imposed no restriction upon alienation by the heirs of a deceased allottee. And the reason may be found in the fact that each member of the tribes — each minor child *454 as well as each adult, duly enrolled as required — was to have his or her allotment; so that each member was already provided with a homestead as a part of the allotment, independently of the lands which might be acquired by descent. On the other hand, the proviso of paragraph 16 — which relates to the additional portion of the allotment, or the so-called "surplus" lands — contains a restriction upon alienation not only by the allottee, but by his heirs. Whatever may have been the purpose, a distinction was thus made with regard to the disposition by heirs of the homestead and surplus lands respectively. The question now presented — with regard to the conveyances made to the appellants — arises in the second class of cases, that is, where a person whose name appeared upon the rolls died after the ratification of the agreement and before receiving his allotment. In this event, provision was made for allotment in the name of the deceased person, and for the descent of the lands to his heirs. This is contained in paragraph 22 of the supplemental agreement: "22. If any person whose name appears upon the rolls, prepared as herein provided, shall have died subsequent to the ratification of this agreement and before receiving his allotment of land the lands to which such person would have been entitled if living shall be allotted in his name, and shall, together with his proportionate share of other tribal property, descend to his heirs according to the laws of descent and distribution as provided in chapter forty-nine of Mansfield's Digest of the Statutes of Arkansas: Provided, That the allotment thus to be made shall be selected by a duly appointed administrator or executor. If, however, such administrator or executor be not duly and expeditiously appointed, or fails to act promptly when appointed, or for any other cause such selection be not so made within a reasonable and practicable time, the Commission to the Five Civilized Tribes shall designate the lands thus to be allotted." *455 In the cases falling within this paragraph, there is no requirement for the selection of any portion of the allotted lands as a homestead, and there is no ground for supposing that it was the intention of Congress that a provision for such selection should be read into the paragraph so as to assimilate it to paragraph 12 relating to allotments to living members. While the lands were to be allotted in the name of the deceased allottee, they passed at once to his heirs, and as each heir, if a member of the tribe, was already supplied with his homestead of 160 acres, there was no occasion for a further selection for that purpose from the inherited lands. No distinction is made between the heirs; they might or might not be members of the tribe, and where there were a number of heirs each would take his undivided share. It is quite evident that there is no basis for implying the requirement that in such case there should be a selection of a portion of the allotment as a homestead, and all the lands allotted under paragraph 22 are plainly upon the same footing. While it appears from the record that, in the present case, separate certificates of allotment were issued for homestead and surplus lands, this was without the sanction of the statute. In the agreement with the Creek Indians (act of March 1, 1901, 31 Stat. 861, 870, c. 676) it was provided that in the case of the death of a citizen of the tribe after his name had been placed upon the tribal roll made by the Commission, and before receiving his allotment, the lands and money to which he would have been entitled, if living, should descend to his heirs "and be allotted and distributed to them accordingly." The question arose whether in such cases there should be a designation of a portion of the allotment as a homestead. In an opinion under date of March 16, 1903, the then Assistant Attorney General for the Interior Department (Mr. Van Devanter) advised the Secretary of the Interior that this was not required by the statute. He said: "After a careful consideration *456 of the provisions of law pertinent to the question presented, and of the views of the Commissioner of Indian Affairs and the Commission to the Five Civilized Tribes, I agree with the latter that in all cases where allotment is made directly to an enrolled citizen, it is necessary that a homestead be selected therefrom and conveyed to him by separate deed, but that where the allotment is made directly to the heirs of a deceased citizen there is no reason or necessity for designating a homestead out of such lands or of giving the heirs a separate deed for any portion of the allotment, and therefore advise the adoption of that rule." It is true that under the Creek agreement, in cases where the ancestor died before allotment, the lands were to be allotted directly to the heirs, while under the Choctaw and Chickasaw agreement the allotment was to be made in the name of the deceased member and "descend to his heirs." This, however, is a merely formal distinction and implies no difference in substance. In both cases the lands were to go immediately to the heirs and the mere circumstance that under the language of the statute the allotment was to be made in the name of the deceased ancestor instead of the names of the heirs furnishes no reason for implying a requirement that there should be a designation of a portion of the lands as homestead. We have, then, a case where all the allotted lands going to the heirs are of the same character and there is no restriction upon the right of alienation expressed in the statute. Had the lands been allotted in the lifetime of the ancestor, one-half of them, constituting homestead, would have been free from restriction upon his death. The only difficulty springs from the language of paragraph 16, limiting the right of heirs to sell "surplus" lands. But, on examining the context, it appears that this provision is part of the scheme for allotments to living members, where there is a segregation of homestead and surplus lands *457 respectively. Whatever the policy of such a distinction which gives a greater freedom for the disposition by heirs of homestead lands than of the additional lands, there is no warrant for importing it into paragraph 22 where there is no such segregation. It would be manifestly inappropriate to imply the restriction in such cases so as to make it applicable to all the lands taken by the heirs, and there is no occasion, or authority, for creating a division of the lands so as to impose a restriction upon a part of them. There being no restriction upon the right of alienation, the heirs in the cases involved in this appeal were entitled to make the conveyances. The bill alleged that the tracts embraced in these conveyances were "allotted lands," and certificates of allotment had been issued. These Indian heirs were vested with an interest in the property which in the absence of any provision to the contrary was the subject of sale. The fact that they were "full-blood" Indians makes no difference in this case for, at the time of the conveyances in question, heirs of the full-blood taking under the provisions of paragraph 22 of the supplemental agreement had the same right of alienation as other heirs. It does not appear from the allegations of the bill whether patents for the lands had been issued to the Indian grantors before the conveyances were made. But as the lands had been duly allotted, the right to patent was established; and there was no restriction in cases under paragraph 22 upon alienation of the lands prior to the date of patent. There was undoubtedly a complete equitable interest which, in the absence of restriction, the owner could convey. Doe v. Wilson, 23 How. 457; Crews v. Burcham, 1 Black, 352; Jones v. Meehan, 175 U.S. 1, 15-18. And any contention that the conveyances were invalid, solely because they were made before the issuance of patent — the lands not being under restriction — would be met by the proviso contained in § 19 of the act of *458 April 26, 1906, 34 Stat. 137, 144, c. 1876: "Provided further, That conveyances heretofore made by members of any of the Five Civilized Tribes subsequent to the selection of allotment and subsequent to removal of restriction, where patents thereafter issue, shall not be deemed or held invalid solely because said conveyances were made prior to issuance and recording or delivery of patent or deed; but this shall not be held or construed as affecting the validity or invalidity of any such conveyance, except as hereinabove provided; and every deed executed before, or for the making of which a contract or agreement was entered into before the removal of restrictions, be and the same is hereby, declared void." We are therefore of the opinion that the bill is without equity as against the appellants for the reason that the conveyances were not executed in violation of any restrictions imposed by Congress, and that the demurrer should have been sustained upon this ground. It follows that, with respect to the appellants, the decree of the Circuit Court of Appeals must be reversed and that of the Circuit Court affirmed. It is so ordered. NOTES [1] See abstract of arguments in Heckman v. United States, ante, p. 413.

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 24 2013, 5:23 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE: MICHAEL L. SCHULTZ RONALD E. WELDY TRAVIS W. MONTGOMERY Weldy & Associates Parr, Richey, Obremskey, Frandsen & Indianapolis, Indiana Patterson, LLP. Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA CANNON IV, INC., ) ) Appellant, ) ) vs. ) No. 49A04-1304-PL-171 ) MATTHEW ANTISDEL, ) ) Appellee. ) APPEAL FROM THE MARION SUPERIOR COURT The Honorable Timothy W. Oakes, Judge Cause No. 49D13-1002-PL-4755 October 24, 2013 MEMORANDUM DECISION – NOT FOR PUBLICATION MATHIAS, Judge  Cannon IV appeals the judgment of the Marion Superior Court in favor of Matthew Antisdel (“Antisdel”) in Antisdel’s breach of contract claim against Cannon IV arising out of an Employment Agreement between the parties. On appeal, Cannon IV argues that the trial court erred when it found that Cannon IV breached the Employment Agreement by reducing Antisdel’s base salary. We affirm. Facts and Procedure Beginning on January 12, 2002, Antisdel was employed as a service technician by Cannon IV. Antisdel worked as an at-will employee for several years before entering into an Employment Agreement (“Agreement”) with Cannon IV, effective on December 26, 2007. The Agreement, drafted by Cannon IV, stated that Antisdel would receive a base pay of $1,574.89 per bi-monthly period, or $37,797.36 per year. The Agreement provided for automatic extension for “successive one year periods (‘Renewal Terms’), unless either party provides notice to the other party at least sixty [] days prior to the beginning of any such Renewal Term of its election to terminate the Employment Period.” Appellant’s App. p. 29. Section 5(b) of the Agreement provided: If the Employment Period is terminated by the Company without Cause or by reason of Employee’[s] resignation with Good Reason, Employee shall be entitled to receive his then-current Base Pay … for the period beginning on the Termination Date and ending on the second anniversary of the Commencement Date, or the expiration of the then current one year Renewal Term. Id. at 29. 2  Section 5(c) of the Agreement stated: If the Employment Period is terminated by the Company for Cause, by reason of Employee’[s] resignation (other than for Good Reason) … Employee shall be entitled to receive his then-current Base Pay … only to the extent that such amount or benefit has accrued through the Termination Date. Id. at 30. Section 5(d) defined “Cause,” in part, as: (i) the failure by Employee to perform such duties commensurate with Employee’[s] status as a Service Technician as determined from time to time by the Company; (ii) Employee’[s] material disregard of his duties or failure to act, where such action would be in the ordinary course of Employee’[s] duties[.]” Id. Section 5(e) of the Agreement defined “Good Reason,” in relevant part, as: (i) the failure by the Company to pay Employee any amount otherwise due hereunder; (ii) a reduction in Employee’[s] Base Pay[.] Id. In 2008, Antisdel did not give notice to Cannon IV of his intention to terminate the Agreement, nor did Cannon IV give notice to Antisdel of its intention to terminate the Agreement. On February 23, 2009, Antisdel met with one of his supervisors, who told him that Cannon IV was “losing a good chunk of money” and had “thought about laying off about six people, but decided that instead of doing that, they were going to cut everyone’s pay by seven percent effective Monday, March 2, [2009].” Tr. p. 27. After the meeting, Antisdel decided to review his copy of the Agreement. 3  The next day, February 24, 2009, Antisdel received a written reprimand from one of his supervisors regarding his failure to properly use the “Eautomate” system1 and his failure to “keep [his] scheduled calls up to date.” Appellant’s App. p. 39. The reprimand did not indicate that Antisdel’s employment was in immediate jeopardy. Rather, it stated, “[i]f an additional reprimand is needed, I will at that time discuss with you your future at Cannon IV and if your continued employment is in the best interest of our clients and Cannon IV.” Id. On Friday, February 27, 2009, Antisdel met with an attorney regarding the pay cut and its implications for the Agreement and, later that night, instructed his attorney to issue a resignation letter to Cannon IV on Antisdel’s behalf. Cannon IV received Antisdel’s resignation letter by an email transmitted by Antisdel’s attorney on March 3, 2009. The letter stated: It is our understanding that effective March 2, 2009, the salary of Mr. Antisdel was decreased by seven percent. It is also our understanding that the compensation of Mr. Antisdel is governed by the Employment Agreement entered into by Mr. Antisdel and [Cannon IV] on December 21, 2007. *** Pursuant to Section 5(e), Mr. Antisdel hereby provides written notice that he intends to resign effective March 18, 2009 for “Good Reason” as a result of the reduction of his Base Pay per Section 5(e)(ii). Pursuant to Section 5(e), [Cannon IV] is hereby provided a 15-day opportunity to cure. If [Cannon IV] intends to cure, then we would ask that notice of this intention is provided to both Mr. Antisdel, personally, and this office via fax or e- mail. 1 “Eautomate” is a system used by Cannon IV to keep track of the work activities of its service technicians. Tr. p. 68. Antisdel testified that he and a Cannon IV supervisor had spoken several times in the months leading up to his written reprimand about the company’s expectations regarding Antisdel’s use of the “Eautomate” system. Tr. p. 70. 4 Ex. Vol., Plaintiff’s Ex. L (internal parentheticals omitted).2 The day after Antisdel’s attorney sent the resignation letter, March 4, 2009, Antisdel met with a Cannon IV supervisor, who told him that Cannon IV had received and accepted his letter of resignation. The supervisor also told Antisdel that Antisdel’s last official day with Cannon IV would be March 18, 2009. The following day, March 5, 2009, James Jones, Cannon IV’s chief operating officer, met with Antisdel and told Antisdel that Cannon IV would pay him through March 18, 2009 and that Antisdel would only need to work through March 6, 2009. Jones also told Antisdel that his final wages would not be subject to the seven percent pay reduction, since his resignation was close in time to the date the pay cut was to take effect. Approximately half an hour after his meeting with Antisdel, Jones transmitted via e-mail to Antisdel and Antisdel’s attorney the same information he had verbally relayed to Antisdel. Later that day, Antisdel’s attorney e-mailed to Jones a letter that stated: Mr. Antisdel does not consider your March 5, 2009 e-mail a response to his letter of March 3, 2009[]. As such, please specifically advise if Cannon IV wants to cure or does not want to cure the reduction in the base pay of Mr. Antisdel pursuant to Section 5(e) of the Employment Agreement. Ex. Vol., Plaintiff’s Ex. M. On March 6, 2009, Jones informed Antisdel that Cannon IV no longer employed Antisdel and that any further discussions regarding his employment must occur through Antisdel’s attorney. The same day, Antisdel’s attorney received a letter from Cannon IV’s attorney offering to allow Antisdel to resign, sign a release, and receive the benefits 2 The record shows that December 21, 2007 is the date Antisdel first received a copy of the Agreement. The Agreement was effective on December 26, 2007. Tr. pp. 11, 13. 5 set forth in the March 5, 2009 e-mail from Jones to Antisdel’s attorney. The letter further provided that if Antisdel refused the offer, Cannon IV “hereby gives notice of Mr. Antisdel’s termination for cause and deems his termination date to be March 6, 2009.” Appellant’s App. p. 42. Antisdel did not sign the release. Thereafter, Cannon IV paid Antisdel his un-reduced wages through March 18, 2009. Cannon IV did not communicate any intention to cure on or before March 18, 2009 and did not pay Antisdel any wages after March 18, 2009. On February 2, 2010, Antisdel filed a complaint against Cannon IV alleging that Cannon IV breached its Agreement with Antisdel and that Cannon IV was required to pay Antisdel “his Base Pay until the second anniversary of the Commencement Date or December 21, 2009.” Appellant’s App. p. 18. A bench trial was held on March 5, 2013. On March 13, 2013 the trial court issued its findings of fact and conclusions of law, which included a judgment against Cannon IV in favor of Antisdel. The trial court found, in relevant part: B. Mr. Antisdel Resigned for Good Reason *** 6. Cannon IV did not have the right to lower the compensation of Mr. Antisdel during the Employment Period that this Employment Agreement was in effect. 7. Cannon IV repudiated and/or anticipatory [sic] breached the Employment Agreement when it gave notice to Mr. Antisdel on February 23, 2009 that Cannon IV intended to lower Mr. Antisdel’s rate of pay by 7% effective March 1, 2009. *** 10. A resignation with Good Reason includes a reduction in Employee’s Base Pay. 11. Mr. Antisdel provided written notice to Cannon IV that he was 6  resigning due to the 7% reduction in his Base Pay. 12. Mr. Antisdel also provided written notice to Cannon IV of its 15-day opportunity to cure. 13. When Cannon IV failed to cure, the Employment Period of Mr. Antisdel terminated for Good Reason and Mr. Antisdel is entitled to his Base Pay from his Termination Date, March 18, 2009, until the end of the Renewal Term, December 26, 2009. C. Mr. Antisdel Never Breached the Employment Agreement 14. Based upon the evidence, Mr. Antisdel did not breach any provisions of the Employment Agreement. *** 16. As the first to breach the Employment Agreement, Cannon IV is precluded from attempting to enforce the terms of the Employment Agreement against Mr. Antisdel including asserting grounds to terminate Mr. Antisdel pursuant to the Employment Agreement for Cause. Appellant’s App. pp. 11-13 (internal citations omitted). The trial court entered judgment in favor of Antisdel in the amount of $28,872.99 in damages and $8,216.90 in statutory prejudgment interest. Cannon IV now appeals. Additional facts will be provided as necessary. Standard of Review Because the trial court entered findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A), our standard of review is two-tiered. First, we determine whether the evidence supports the findings, and second, whether the findings support the judgment. Briles v. Wausau Ins. Co., 858 N.E.2d 208, 212 (Ind. Ct. App. 2006), trans. denied. We will not disturb the trial court’s findings or judgment unless they are clearly erroneous. Walsh & Kelly, Inc. v. Int’l Contractors, Inc., 943 N.E.2d 394, 398 (Ind. Ct. App. 2011), trans. denied. 7  Findings of fact are clearly erroneous when the record lacks any reasonable inference from the evidence to support them. Briles, 858 N.E.2d at 212. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. Id. We will neither reweigh evidence nor judge the credibility of witnesses, but will consider only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom. Id. Although we defer to the trial court's factual findings, we evaluate questions of law de novo. McCauley v. Harris, 928 N.E.2d 309, 313 (Ind. Ct. App. 2010). Discussion and Decision Cannon IV challenges the trial court’s conclusion that Cannon IV anticipatorily breached the Agreement and that Antisdel had “Good Reason” to resign. Cannon IV claims that its February 23, 2009 notice to Antisdel of the seven percent pay cut constituted only a request to be released from the terms of the Agreement and that “[m]ere notice of an intended act, without more, is not sufficient to constitute breach of contract by anticipatory repudiation.” Appellant’s Reply Br. at 3. Because it did not breach the Agreement, Cannon IV asserts, Antisdel had no “Good Reason” to terminate the Agreement. In Indiana, one party’s anticipatory breach of contract excuses the other party from further performance. Page Two, Inc. v. P.C. Mgmt., Inc., 517 N.E.2d 103, 106 n. 2 (Ind. Ct. App. 1987). “Repudiation of a contract must be positive, absolute, and unconditional in order that it may be treated as an anticipatory breach.” Angelone v. Chang, 761 N.E.2d 426, 429 (Ind. Ct. App. 2001). 8  In support of its argument, Cannon IV cites Jay County Rural Elec. Membership Corp. v. Wabash Valley Power Ass’n, Inc., where appellant Jay County Rural Electric Membership Corporation (“Jay County”) argued that Wabash Valley Power Association (“WVPA”) anticipatorily repudiated its contract with Jay County when it notified Jay County of its intent to merge with another cooperative. 692 N.E.2d 905, 910 (Ind. Ct. App. 1998). WVPA had drafted a proposed “intent to merge” resolution and informed Jay County that it would consider adoption of the resolution at its February board meeting. Within a few days of receiving the notice, Jay County terminated its contractual relationship with WVPA. Two days after Jay County terminated the contract, the WVPA board passed the resolution. This court affirmed the trial court’s conclusion that, at the time Jay County terminated its contractual relationship with WVPA, WVPA had not breached the contract because “WVPA had not communicated a positive, absolute, and unconditional repudiation of the contract.” Id. at 912. We find the present case distinguishable from Jay County v. WVPA. In Jay County v. WVPA, at the time Jay County terminated the contract, WVPA had merely informed it that WVPA was considering adopting the “intent to merge” resolution and had not yet prepared a final plan of merger. Unlike WVPA, Cannon IV was not simply considering a pay cut, nor had it merely proposed a resolution setting forth its intent to reduce its employees’ pay. Rather, the record shows that Cannon IV not only “decided to do an across the board 7% reduction of everyone’s pay including Mr. Antisdel,” but also notified its employees, including Antisdel, of its decision and the date the pay cut would take effect. Appellant’s App. p. 5 (emphasis added). Thus, on the day Antisdel resigned, 9 he was on notice that his salary would be reduced. Furthermore, the fact that Cannon IV later decided not to apply the seven percent pay cut to Antisdel’s final wages because his resignation occurred so close in time to the day the pay cut was to take effect belies Cannon IV’s assertion that it simply requested to be released from the Agreement, as does Jones’s testimony that the pay cut’s potential violation of the terms of the Agreement “really wasn’t a thought at the time [the decision was made].” Tr. p. 107. Therefore, under the facts and evidence before it, the trial court’s conclusion that Cannon IV anticipatorily breached the Agreement and that Antisdel had “Good Reason” to resign did not constitute clear error. See Ralph E. Koressel Premier Elec., Inc. v. Forster, 838 N.E.2d 1037, 1045 (Ind. Ct. App. 2005) (finding that prospective seller of business anticipatorily breached listing agreement with business broker where, after buyer agreed to purchase business at a price acceptable to seller, seller notified broker that he did not intend to pay broker any commission on the sale because he believed that broker had not done enough work to justify payment of the commission, and seller's attorney notified broker that he was being terminated). Cannon IV also argues that since it notified Antisdel, after his attorney tendered Antisdel’s resignation letter, that it would not reduce his final pay check, it had cured and that since there was no reduction in pay, there was no “Good Reason” for Antisdel to resign. Indeed, the record shows that after Antisdel resigned, Cannon IV decided not to apply the seven percent reduction to Antisdel’s final wages since his resignation occurred close in time to the institution of the pay cut. 10  The fact that Cannon IV ultimately failed to enforce the pay reduction against Antisdel’s final pay period wages does not somehow rescind its breach of the Agreement and does not constitute curing of the breach. A “cure” occurs where a party has failed to perform but the party’s performance or offer to perform shortly after the breach “has the effect of ‘curing’ the breach to the extent that the breach is no longer material.” See Frazier v. Mellowitz, 804 N.E.2d 796, 803 (Ind. Ct. App. 2004) (quoting Murray on Contracts, § 167 (2d Rev. ed. 1974)). The trial court found that, although Cannon IV did not reduce Antisdel’s wages in his final pay, it “has not paid Mr. Antisdel any money since March 18, 2009.” Appellant’s App. p. 10. It also found that “[f]rom March 19, 2009 (the Termination Date) to December 26, 2009 (the Renewal Date), Cannon IV should have paid Mr. Antisdel $28,872.99.” Id. If Cannon IV’s intention had been to cure under the Agreement, it would have notified Antisdel that it would not reduce his pay and that he could continue his employment with Cannon IV at the base pay set forth in the Agreement through the end of the contract term, or it would have paid him the full amount due for the term under the Agreement. Cannon IV’s payment of the un-reduced base pay that was already due Antisdel for his last pay period was not a cure for purposes of contract law. Finally, Cannon IV argues that it terminated Antisdel for “Cause” because of “Antisdel’s repeated failure to meet reasonable expectations of communication and project management and his intentional disregard for his obligations to Cannon IV on 11 February 27.”3 Appellant’s Br. at 18. It asserts, “Antisdel’s employment terminated at the end of business on [March 6, 2009], as did his right to collect any further pay or benefits from his then-former employer.” Appellant’s Br. at 11. We disagree. Since Cannon IV was the first to breach the Agreement by reducing Antisdel’s base salary, it may not subsequently enforce the Agreement against Antisdel by asserting grounds to terminate Antisdel for cause. See Licocci v. Cardinal Associates, Inc., 492 N.E.2d 48, 52 (Ind. Ct. App. 1986) (providing, “[a] party first guilty of a material breach of contract may not maintain an action against the other party or seek to enforce the contract against the other party should that party subsequently breach the contract.”). As the trial court noted in its findings, it was only after Antisdel asserted his rights under the Agreement that Cannon IV attempted to terminate him. When Cannon IV issued the February 24, 2009 written reprimand to Antisdel, it did not indicate any intention to terminate Antisdel because of the performance issues set forth in the reprimand. Furthermore, Jones testified that, at the time of his March 3, 2009 meeting with Antisdel, “I was aware of the reprimand. I told [Antisdel] to fix what he needed to fix … and let’s just move on. I didn’t agree with quitting your job over seven percent[.]” Tr. p. 104. Given this evidence, we cannot say that the trial court clearly erred when it concluded, “Cannon IV is precluded from attempting to enforce the terms of the Employment Agreement against Mr. Antisdel including asserting grounds to terminate Mr. Antisdel pursuant to the Employment Agreement for cause.” Appellant’s App. p. 13. 3 Here, Cannon IV refers to the fact that Antisdel’s February 27, 2009 meeting with his attorney regarding the Employment Agreement occurred during his normal work hours. 12  Conclusion For all of these reasons, we conclude that the trial court’s conclusions that Cannon IV breached the Employment Agreement and that Antisdel resigned for “Good Reason” are not clearly erroneous. The judgment of the trial court is therefore affirmed. Affirmed. NAJAM, J., and BROWN, J., concur. 13 

210 U.S. 281 (1908) ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY v. TAYLOR, ADMINISTRATRIX. No. 201. Supreme Court of United States. Argued April 14, 1908. Decided May 18, 1908. ERROR TO THE SUPREME COURT OF THE STATE OF ARKANSAS. *282 Mr. Rush Taggart, with whom Mr. John F. Dillon was on the brief, for plaintiff in error. Mr. Sam R. Chew, for defendant in error, submitted. *284 MR. JUSTICE MOODY delivered the opinion of the court. The defendant in error, as administratrix of George W. Taylor, brought, in the Circuit Court of the State of Arkansas, this action at law against the plaintiff in error, a corporation owning and operating a railroad. Damages were sought, for the benefit of Taylor's widow and next of kin, on account of his injury and death in the course of his employment as brakeman in the service of the railroad. It was alleged in the complaint that Taylor, while attempting, in the discharge of his duty, to couple two cars was caught between them and killed. The right to recover for the death was based solely on the failure of the defendant to equip the two cars which were to be coupled with such draw bars as were required by the act of Congress known as the Safety Appliance Law. Act of March 2, 1893, c. 196, 27 Stat. 531. The defendant's answer denied that the cars were improperly equipped with draw bars, and alleged that Taylor's death was the result of his own negligence. At a trial before a jury upon the issues made by the *285 pleadings there was a verdict for the plaintiff, which was affirmed in a majority opinion by the Supreme Court of the State. The judgment of that court is brought here for reexamination by writ of error. The writ sets forth many assignments of error, but of them four only were relied upon in argument here, and they alone need be stated and considered. It is not, and cannot be, disputed that the questions raised by the errors assigned were seasonably and properly made in the court below, so as to give this court jurisdiction to consider them; so no time need be spent on that. But the defendant in error insists that the questions themselves, though properly here in form, are not Federal questions; that is to say, not questions which we by law are authorized to consider on a writ of error to a state court. For that reason it is contended that the writ should be dismissed. That contention we will consider with each question as it is discussed. The accident by which the plaintiff's intestate lost his life occurred in the Indian Territory, where, contrary to the doctrine of the common law, a right of action for death exists. The cause of action arose under the laws of the Territory, and was enforced in the courts of Arkansas. The plaintiff in error contends that of such a cause, triable as it was in the courts of the Territory created by Congress, the courts of Arkansas have no jurisdiction. This contention does not present a Federal question. Each State may, subject to the restrictions of the Federal Constitution, determine the limits of the jurisdiction of its courts, the character of the controversies which shall be heard in them, and specifically how far it will, having jurisdiction of the parties, entertain in its courts transitory actions where the cause of action has arisen outside its borders. Chambers v. Baltimore & Ohio R.R., 207 U.S. 142. We have, therefore, no authority to review the decision of the state court, so far as it holds that there was jurisdiction to hear and determine this case. On that question the decision of that court is final. The next question presented requires an examination of the *286 act of Congress, upon which the plaintiff below rested her right to recover. Section 5 of the Safety Appliance Law is as follows, 27 Stat. 531: "Within ninety days from the passage of this act the American Railway Association is authorized hereby to designate to the Interstate Commerce Commission the standard height of draw bars for freight cars, measured perpendicular from the level of the tops of the rails to the centers of the draw bars, for each of the several gauges of railroads in use in the United States, and shall fix a maximum variation from such standard height to be allowed between the draw bars of empty and loaded cars. Upon their determination being certified to the Interstate Commerce Commission, said Commission shall at once give notice of the standard fixed upon to all common carriers, owners or lessees engaged in interstate commerce in the United States by such means as the Commission may deem proper. But should said association fail to determine a standard as above provided, it shall be the duty of the Interstate Commerce Commission to do so before July first, eighteen hundred and ninety-four, and immediately to give notice thereof as aforesaid. And after July first, eighteen hundred and ninety-five, no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard above provided for." The action taken in compliance with this law by the American Railway Association, which was duly certified to and promulgated by the Interstate Commerce Commission, was contained in the following resolution, June 6, 1893 — Int. Com. Comm. Rep. for 1893, pp. 74, 263: "Resolved, that the standard height of draw bars for freight cars, measured perpendicular from the level of the tops of the rails to the centers of the draw bars, for standard gauge railroads in the United States, shall be thirty-four and one-half inches, and the maximum variation from such standard heights to be allowed between the draw bars of empty and loaded cars shall be three inches. *287 "Resolved, that the standard height of draw bars for freight cars, measured perpendicular from the level of the tops of the rails to the centers of the draw bars, for the narrow gauge railroads in the United States, shall be twenty-six inches, and the maximum variation from such standard height to be allowed between the draw bars of empty and loaded cars shall be three inches." It is contended that there is here an unconstitutional delegation of legislative power to the Railway Association and to the Interstate Commerce Commission. This is clearly a Federal question. Briefly stated, the statute enacted that after a date named only cars with draw bars of uniform height should be used in interstate commerce, and that the standard should be fixed by the Association and declared by the Commission. Nothing need be said upon this question except that it was settled adversely to the contention of the plaintiff in error in Buttfield v. Stranahan, 192 U.S. 470, a case which in principle is completely in point. And see Union Bridge Co. v. United States, 204 U.S. 364, where the cases were reviewed. Before proceeding with the consideration of the third assignment of error, which arises out of the charge, it will be necessary to set forth the course of the trial and the state of the evidence when the cause came to be submitted to the jury. This is done, not for the purpose of retrying questions of fact, which we may not do, but first to see whether the question raised was of a Federal nature, and second, to see whether error was committed in the decision of it. Taylor was a brakeman on a freight train, which had stopped at a station for the purpose of leaving there two cars which were in the middle of the train. When this was done the train was left in two parts, the engine and several cars attached making one section and the caboose with several cars attached making the other. The caboose and its cars remained stationary, and the cars attached to the engine were "kicked" back to make the coupling. One of the cars to be coupled had an automatic coupler and the other an old-fashioned link and pin coupler. That *288 part of the law which requires automatic couplers on all cars was not then in force. In attempting to make the coupling Taylor went between the cars and was killed. The cars were "kicked" with such force that the impact considerably injured those immediately in contact and derailed one of them. One of the cars to be coupled (that with the automatic coupler) was fully and the other lightly loaded. The testimony on both sides tended to show that there was some difference in the height of the draw bars of these two cars, as they rested on the tracks in their loaded condition, but there was no testimony as to the height of the draw bars if the cars were unloaded, except that, as originally made some years before, they were both of standard height. But as to the extent of the difference in the height of the draw bars, as the cars were being used at the time of the accident, there was a conflict in the testimony. One witness called by the plaintiff testified that the automatic coupler appeared to be about four inches lower than the link and pin coupler. Although another, called also by the plaintiff, testified that the automatic coupler was one to three inches higher than the other. That the automatic coupler was the lower is shown by the marks left upon it by the contact, which indicated that it had been overriden by the link and pin coupler, and was testified to by a witness who made up the train at its starting point. Two witnesses called by the defendant testified to actual measurements made soon after the accident, which showed that the center of the draw bar of the automatic coupler was thirty-two and one-half inches from the top of the rail, and that of the link and pin coupler thirty-three and one-half inches from the top of the rail. The evidence therefore, in its aspect most favorable to the plaintiff, tended to show that the fully loaded car was equipped with an automatic coupler, which at the time was four inches lower than the link and pin coupler of the lightly loaded car. On the other hand, the evidence in its aspect most favorable to the defendant tended to show that the automatic draw bar of the loaded car was exactly one inch lower than the link and *289 pin draw bar. It was the duty of the jury to pass upon this conflicting evidence, and it was the duty of the presiding judge to instruct the jury clearly as to the duty imposed upon the defendant by the act of Congress. Before passing to the consideration of the charge to the jury we will for ourselves determine the meaning of that act. We think that it requires that the center of the draw bars of freight cars used on standard gauge railroads shall be, when the cars are empty, thirty-four and one-half inches above the level of the tops of the rails; that it permits, when a car is partly or fully loaded, a variation in the height downward, in no case to exceed three inches; that it does not require that the variation shall be in proportion to the load, nor that a fully loaded car shall exhaust the full three inches of the maximum permissible variation and bring its draw bars down to the height of thirty-one and one-half inches above the rails. If a car, when unloaded, has its draw bars thirty-four and one-half inches above the rails, and, in any stage of loading, does not lower its draw bars more than three inches, it complies with the requirements of the law. If, when unloaded, its draw bars are of greater or less height than the standard prescribed by the law, or if, when wholly or partially loaded, its draw bars are lowered more than the maximum variation permitted, the car does not comply with the requirements of the law. On this aspect of the case the presiding judge gave certain instructions and refused certain instructions, both under the exception of the defendant. The jury were instructed, the italics being ours: "I. The act of Congress fixes the standard height of loaded cars engaged in interstate commerce on standard gauge railroads at thirty-one and one-half inches, and unloaded cars at thirty-four and one-half inches measured perpendicularly from the level of the face of the rails to the centers of the draw bars, and this variation of three inches in height is intended to allow for the difference in height caused by loading the car to the full capacity, or by loading it partially, or by its being carried in the train when it is empty. Now, the law required *290 that the two cars between which Taylor lost his life should be when unloaded of the equal and uniform height from the level of the face of the rails to the center of the draw bars of thirty-four and one-half inches, and when loaded to the full capacity should be of the uniform height of thirty-one and one-half inches. Now, if the plaintiff by a preponderance of the evidence shows a violation of this duty on part of defendant, then this is negligence, and if the proof by a preponderance also shows that this caused or contributed to the death of Taylor, then you should find for the plaintiff, unless it appears by a preponderance of the evidence that Taylor was wanting in ordinary care for his own safety, and that this want of care on Taylor's part for his own safety caused or contributed to the injury and death sued for, in which latter case you should find for the defendant. "II. If there was the difference between the height of the center of the draw bars in the two cars in question, as indicated in the first instruction, then the question arises whether this differences caused or contributed to the injury and death of Taylor sued for. On that point if such difference existed, and but for its existence the injury and death of Taylor would not have happened, then such difference is said in law to be an efficient proximate cause of Taylor's injury and death, although it may be true that other causes may have cooperated with this one in producing the injury and death of Taylor, and but for these other cooperating causes the injury and death of Taylor would not have ensued. But if such difference in height of the center of the draw bars as aforesaid actually existed, yet if the injury and death of Taylor would have ensued just the same as it did without the existence of such difference in height of the center of the draw bars, then such difference in the height of the center of the draw bars is not in law an efficient proximate cause of the injury and death of Taylor." The clear intendment of these instructions was that the law required that the draw bars of a fully loaded car should be of the height of thirty-one and one-half inches, and that if either of the cars varied from this requirement the defendant had *291 failed in the performance of its duty. We find nothing in the remainder of the charge which qualifies this instruction, and we think it was erroneous. We should be reluctant to insist upon mere academic accuracy of instructions to a jury. But how vitally this error affected the defendant is demonstrated by the fact that its own evidence showed that the draw bar of the fully loaded car was thirty-two and one-half inches in height. Under these instructions the plaintiff was permitted to recover on proof of this fact alone. From such proof a verdict for the plaintiff would logically follow. The error of the charge was emphasized by the refusal to instruct the jury, as requested by the defendant, "that when one car is fully loaded and another car in the same train is only partially loaded, the law allows a variation of full three inches between the center of the draw bars of such cars, without regard to the amount of weight in the partially loaded car." This request, taken in connection with the instruction that the draw bars of unloaded cars should be of the height prescribed by the act, expressed the true rule, and should have been given. On the other hand, a request for instructions, which was as follows, "The court charges you that the act of Congress allows a variation in height of three inches between the centers of the draw bars of all cars used in interstate commerce, regardless of whether they are loaded or empty, the measurement of such height to be made perpendicularly from the top of the rail to the center of the draw bar shank or draft line," contained an erroneous expression of the law, and was correctly refused. It is based upon the theory that the height of the draw bars of unloaded cars may vary three inches, while the act, as we have said, requires that the height of the draw bars of unloaded cars shall be uniform. But we have not the power to correct mere errors in the trials in state courts, although affirmed by the highest state courts. This court is not a general court of appeals, with the general right to review the decisions of state courts. We may only inquire whether there has been error committed in the *292 decision of those Federal questions which are set forth in § 709 of the Revised Statutes, and it is strenuously urged that the error in this part of the case was not in the decision of any such Federal question. That position we proceed to examine. The judicial power of the United States extends "to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." Article III, § 2, Constitution. The case at bar, where the right of action was based solely upon an act of Congress, assuredly was a case "arising under . . . the laws of the United States." It was settled, once for all time, in Cohens v. Virginia, 6 Wheat. 264, that the appellate jurisdiction, authorized by the Constitution to be exercised by this court, warrants it in reviewing the judgments of state courts so far as they pass upon a law of the United States. It was said in that case (p. 416): "They [the words of the Constitution] give to the Supreme Court appellate jurisdiction in all cases arising under the Constitution, laws, and treaties of the United States. The words are broad enough to comprehend all cases of this description, in whatever court they may be decided;" and it was further said (p. 379): "A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either." But the appellate jurisdiction of this court must be exercised "with such exceptions and under such regulations as the Congress shall make." Article III, § 4, Constitution. Congress has regulated and limited the appellate jurisdiction of this court over the state courts by § 709 of the Revised Statutes, and our jurisdiction in this respect extends only to the cases there enumerated, even though a wider jurisdiction might be permitted by the constitutional grant of power. Murdock v. Memphis, 20 Wall. 590, 620. The words of that section material here are those authorizing this court to reexamine the judgments of the state courts "where any title, right, privilege, *293 or immunity is claimed under . . . any statute of . . . the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed under such . .. statute." There can be no doubt that the claim made here was specifically set up, claimed, and denied in the state courts. The question, therefore, precisely stated, is whether it was a claim of a right or immunity under a statute of the United States. Recent decisions of this court remove all doubt from the answer to this question. McCormick v. Market Bank, 165 U.S. 538; California Bank v. Kennedy, 167 U.S. 362; San Jose Land and Water Co. v. San Jose Ranch Co., 189 U.S. 177; Nutt v. Knut, 200 U.S. 12; Rector v. City Deposit Bank, 200 U.S. 405; Illinois Central Railroad v. McKendree, 203 U.S. 514; Eau Claire National Bank v. Jackman, 204 U.S. 522; Hammond v. Whittredge, 204 U.S. 538. The principles to be derived from the cases are these: Where a party to litigation in a state court insists, by way of objection to or requests for instructions, upon a construction of a statute of the United States which will lead, or, on possible findings of fact from the evidence may lead, to a judgment in his favor, and his claim in this respect, being duly set up, is denied by the highest court of the State, then the question thus raised may be reviewed in this court. The plain reason is that in all such cases he has claimed in the state court a right or immunity under a law of the United States and it has been denied to him. Jurisdiction so clearly warranted by the Constitution and so explicitly conferred by the act of Congress needs no justification. But it may not be out of place to say that in no other manner can a uniform construction of the statute laws of the United States be secured, so that they shall have the same meaning and effect in all the States of the Union. It is clear that these principles govern the case at bar. The defendant, now plaintiff in error, objected to an erroneous construction of the Safety Appliance Act, which warranted on the evidence a judgment against it, and insisted upon a correct *294 construction of the act, which warranted on the evidence a judgment in its favor. The denials of its claims were decisions of Federal questions reviewable here. The plaintiff in error raises another question, which, for the reasons already given, we think is of a Federal nature. The evidence showed that draw bars which, as originally constructed, are of standard height, are lowered by the natural effect of proper use; that, in addition to the correction of this tendency by general repair, devices called shims, which are metallic wedges of different thickness, are employed to raise the lowered draw bar to the legal standard; and that in the caboose of this train the railroad furnished a sufficient supply of these shims, which it was the duty of the conductor or brakeman to use as occasion demanded. On this state of the evidence the defendant was refused instructions, in substance, that if the defendant furnished cars which were constructed with draw bars of a standard height, and furnished shims to competent inspectors and trainmen and used reasonable care to keep the draw bars at a reasonable height, it had complied with its statutory duty, and, if the lowering of the draw bar resulted from the failure to use the shims, that was the negligence of a fellow servant, for which the defendant was not responsible. In deciding the questions thus raised, upon which the courts have differed (St. Louis & S.F. Ry. v. Delk, 158 Fed. Rep. 931), we need not enter into the wilderness of cases upon the common law duty of the employer to use reasonable care to furnish his employe reasonably safe tools, machinery and appliances, or consider when and how far that duty may be performed by delegating it to suitable persons for whose default the employer is not responsible. In the case before us the liability of the defendant does not grow out of the common law duty of master to servant. The Congress, not satisfied with the common law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that "no *295 cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard." There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts. They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the constitutional power of the lawmaking body. It is said that the liability under the statute, as thus construed, imposes so great a hardship upon the railroads that it ought not to be supposed that Congress intended it. Certainly the statute ought not to be given an absurd or utterly unreasonable interpretation leading to hardship and injustice, if any other interpretation is reasonably possible. But this argument is a dangerous one, and never should be heeded where the hardship would be occasional and exceptional. It would be better, it was once said by Lord Eldon, to look hardship in the face rather than break down the rules of law. But when applied to the case at bar the argument of hardship is plausible only when the attention is directed to the material interest of the employer to the exclusion of the interests of the employe and of the public. Where an injury happens through the absence of a safe draw bar there must be hardship. Such an injury must be an irreparable misfortune to some one. If it must be borne entirely by him who suffers it, that is a hardship to him. If its burden is transferred, as far as it is capable of transfer, to the employer, it is a hardship to him. It is quite conceivable that Congress, contemplating the inevitable hardship *296 of such injuries, and hoping to diminish the economic loss to the community resulting from them, should deem it wise to impose their burdens upon those who could measurably control their causes, instead of upon those who are in the main helpless in that regard. Such a policy would be intelligible, and, to say the least, not so unreasonable as to require us to doubt that it was intended, and to seek some unnatural interpretation of common words. We see no error in this part of the case. But for the reasons before given the judgment must be Reversed. MR. JUSTICE BREWER concurs in the judgment.

12 B.R. 99 (1981) In re CENTENNIAL INDUSTRIES, INC., Debtor. CENTENNIAL INDUSTRIES, INC., Plaintiff, v. NCR CORPORATION, Defendant. Bankruptcy No. 78 B 1658. United States Bankruptcy Court, S.D. New York. June 24, 1981. *100 Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for debtor. Booth, Lipton & Lipton, New York City, for defendant. MEMORANDUM & ORDER JOHN J. GALGAY, Bankruptcy Judge. Defendant's motion to dismiss the complaint asks this Court to determine whether an adversary proceeding seeking recovery of preferential payments and improper transfers of debtor's property can be brought after a plan of arrangement in a Chapter XI proceeding is confirmed. After review of the argument presented on July 30, 1980, the papers submitted by counsel, the statutes, and the interpretive case law, this Court denies defendant's motion to dismiss. Centennial Industries, Inc., (Centennial) filed a petition under Chapter XI of the Bankruptcy Act on September 13, 1978. Centennial listed NCR's claim as $910,501.83 on its schedule of claims, and defendant filed a proof of claim for $1,024,850.01. On March 13, 1980 this Court entered an order confirming a plan of arrangement providing for a 20% payment to unsecured creditors this year, and an additional 15% payable over the next five years at 3% per annum, and for objections to claims to be made within 60 days. On April 24, 1980 plaintiff filed a complaint objecting to defendant's claim, seeking recovery of preferential payments under 57(g) of the Act, and recovery of commissions belonging to plaintiff which it claimed were wrongfully appropriated by defendant and are voidable transfers under section 70(a)(6), and recoverable under section 57(g). Section 57(g) states, "The claims of creditors who have received or acquired preferences, liens, conveyances, transfers, assignments, or encumbrances, void or voidable under this Act, shall not be allowed unless such creditors shall surrender such preferences, *101 liens, conveyances, transfers, assignments or encumbrances." NCR raises three arguments in its motion to dismiss. NCR contends that the Bankruptcy Court lacks jurisdiction, recovery of preferential transfer will give Centennial a windfall, and that plaintiff lacks standing to bring this adversary proceeding. For the reasons to be stated below, this Court finds that none of these objections bar the bringing of this adversary proceeding to recover a preference post-confirmation. Defendant contends that after confirmation of a plan this Court does not retain jurisdiction to determine an adversary proceeding to recover preferential payments. Defendant states that absent specific retention of jurisdiction, this Court cannot adjudicate an adversary proceeding such as this Section 367(4) of the Act specifically provides that on "confirmation of an arrangement . . . except as otherwise provided in sections 369 and 370 of this Act, the case shall be dismissed." Neither section 369 or section 370 deals with adversary proceedings to recover preferential transfers. While section 368 allows the court to retain jurisdiction, if so provided in the arrangement, NCR declares that no jurisdiction was retained to recover preferential transfers. It is the opinion of this Court that jurisdiction was specifically retained in the plan to determine this adversary proceeding. The order confirming the plan allowed objections to claims to be made within sixty days. From this the court finds that it retained jurisdiction to hear all claims objecting to the allowability of a claim. Defendant argues that there is a distinction between a mere "objection" to claim and an adversary proceeding seeking recovery of alleged preferential transfers. This court finds it a distinction without a difference. The Supreme Court in Katchen v. Landy, 382 U.S. 323, 330, 86 S.Ct. 467, 473, 15 L.Ed.2d 391 (1965) when considering whether an action under section 57(g) is subject to summary adjudication by a bankruptcy court, the Supreme Court stated, "The objection under 57g is, like other objections, part and parcel of the allowance process and is subject to summary adjudication." This court holds that a retention of jurisdiction to hear objections to claims is a retention of jurisdiction to hear all controversies affecting the allowance process including a 57(g) objection. Furthermore, a close reading of the objection to claims clause, in the order confirming the plan, seems to indicate a retention of powers broader than those merely to hear objections to claims. The clause states, "Objection to claims may be made . . . and upon the failure to do so, any objection to the allowance of any claim shall be deemed waived." The clause doesn't state that "any objection to claim shall be deemed waived" but it states "any objection to the allowance of any claim" meaning that the court retains specific jurisdiction to hear any objection affecting the allowance of the claim, and 57(g) affects the allowance of the claim by requiring the creditor to repay the preference before his claim will be allowed. Defendant's citation to In re Oceana International, Inc., 376 F.Supp. 956 (S.D.N.Y. 1974) and to Law Research Service, Inc., v. Hemba, 384 F.Supp. 729 (S.D.N.Y.1974) where the court found no jurisdiction after confirmation, does not advance its position. In those cases the court found that the plan did not provide for retention of jurisdiction, while in this case the confirmation did retain specific jurisdiction for objections under 57(g). This case is more in line with Texas Consumer Finance Corp. v. First National City Bank, 365 F.Supp. 427 (S.D.N.Y. 1973) in which post confirmation jurisdiction to recover a preferential payment was upheld, because the plan provided for retention of jurisdiction. As the court stated, "If the debtor-in-possession has the powers of a trustee and if jurisdiction is specifically retained in the plan, the order of confirmation should not be the occasion for a windfall to the preferential transferee." Id. at 432. NCR next argues that the purpose of section 57(g) of the Act is to increase the amount of recovery of unsecured creditors *102 by the amount recovered from the preference. And since in this case the amount to be recovered by the unsecured creditors is fixed by the plan and will not increase if debtor recovers the preference, then 57(g) is not applicable. This Court does not agree with such an interpretation. This Court holds that as long as the unsecured creditors receive some benefit from the recovery of the preference, even if it is not an increase in the amount the creditors will receive, 57(g) will apply. In this case any recovery by Centennial will increase the likelihood of the creditors receiving their future payments. Therefore, a recovery under 57(g) is permitted. Defendant relies on Whiteford Plastics Co., v. Chase National Bank, 179 F.2d 582, 584 (2d Cir. 1950) where Judge Hand wrote, "The debtor never contributed or offered to contribute this value to the plan and now seeks to obtain it purely for its own benefit. This we think it cannot do." Defendant fails to recognize the difference between the Whiteford case and this case. In the very next paragraph, Judge Hand articulated the key factor, for in that case, "the creditors have received cash or stock for their claims, and there is no reason to safeguard their rights further." In Centennial's case the plan calls for payments over five years and this Court therefore has reason to protect further the rights of the creditors to insure that there are sufficient assets for the debtor to meet his obligations. While it is true that the Court had found the plan feasible when it was confirmed, a finding of feasibility is far short of a guarantee of the consummation of the plan. The recovery of this preference will be additional security for the fulfillment of the debtor's plan. Likewise NCR's reliance on In re Oceana International, Inc., 376 F.Supp. 956 (S.D.N.Y.1974) is ill founded, since that case also called for a single 10% distribution to creditors and there was no reason for the court to further protect creditors' interests. As previously stated, this case calls for payments over five years, so this Court has reason to further protect the interests of the creditors, and to allow recovery of the preference. This Court also finds persuasive the reasoning in City National Bank & Trust Co. v. Oliver, 230 F.2d 686 (10th Cir. 1956). In that case, similar to the instant case, the debtor was making payments under his plan over a period of time. The Court found that it would be to the benefit of the creditors to allow the debtor to retain possession of a television set, since in the event that the debtor defaulted on his plan, the creditors would benefit by having the television part of the assets of the debtor. Here too, the recovery of the preferential transfer will benefit the unsecured creditors if the debtor should default on his plan since the amount of available assets would be increased. Finally, NCR contends that a debtor does not have standing to assert the right to set aside a preferential transfer after confirmation. It is undisputed that a debtor-in-possession has the power to set aside voidable transfers. See In re Martin Custom Made Tires Corp., 108 F.2d 172 (2d Cir. 1939). However, defendant claims that the powers of debtor-in-possession cease after the plan is confirmed. Defendant cites no cases which specifically states that the powers of the debtor-in-possession terminate after confirmation. The court in Martin, Id. at 173, which defined the powers of a debtor-in-possession stated, "A debtor-in-possession holds its powers in trust for the benefit of the creditors. The creditors have the right to require the debtor-in-possession to exercise those powers for their benefit." Now that this Court has established that in this case the recovery of the preferential transfer would be beneficial to the creditors even after the confirmation, we find no reason to hold that the rights of this debtor-in-possession cease until consummation of the arrangement. This case is similar to Texas Consumer Finance Corp. v. First National City Bank, supra. There the court found that the debtor retained rights as debtor-in-possession *103 since the Court's order provided that the debtor would continue in possession and continue operation of the business. Additionally, the Court found that any recovery would be beneficial to the creditors. Here too, the arrangement provides for the debtor to continue operations of the business, and here too, voidance of the preferential transfer will be beneficial to the creditors. For all of the foregoing, this Court denies the motion of NCR to dismiss Centennial's complaint under Section 57(g) of the Bankruptcy Act. It is so ordered.

[Cite as Hosang v. Hosang, 2019-Ohio-54.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY Jeffrey A. Hosang Court of Appeals No. H-17-013 Appellant/Cross-Appellee Trial Court No. DR 2014 0163 v. Constance A. Hosang, et al. DECISION AND JUDGMENT Appellee/Cross-Appellant Decided: January 11, 2019 ***** Thomas M. Dusza, for appellant/cross-appellee. John D. Allton, for appellee/cross-appellant. ***** PIETRYKOWSKI, J. {¶ 1} This appeal and cross-appeal is from the Huron County Court of Common Pleas’ August 29, 2017 judgment entry denying the objections of plaintiff- appellant/cross-appellee, Jeffrey A. Hosang, and defendant-appellee/cross-appellant, Constance A. Hosang1. For the reasons that follow, we affirm. 1 On July 3, 2018, we stayed this matter pending appellant’s bankruptcy proceedings. Those proceedings are now complete and the bankruptcy stay has been lifted.  {¶ 2} The parties were married in February 1995, and had four surviving children together at the time of the divorce. Throughout their marriage, appellant owned and operated TJ Hosang Construction Company, a home construction and remodeling business. Appellee worked for the company as an office manager and bookkeeper. The parties also owned several parcels of real property, including the marital residence and adjoining parcels which were secured by various mortgages. {¶ 3} This case commenced on March 5, 2014, with appellant’s complaint for divorce with minor children.2 Appellee filed a counterclaim for divorce on March 31, 2014. {¶ 4} The matter ultimately proceeded to a hearing on the division of the marital property. The parties presented expert testimony regarding the valuation of the real property. Appellant’s expert, Jack Erne, testified that he is a certified appraiser. Erne testified regarding the pre-site and onsite visit work entailed in valuing residential and vacant properties. Erne also discussed the need to assess comparables based on the size, location, and use of the properties. Erne then testified regarding the documents he prepared in assigning values to the three categories of properties. First, as to the residential property, Erne valued the home and land at $189,000. Next, as to the five farmland parcels, Erne noted that he valued the property for farm-use only based on the high costs required to convert the land for residential use. Erne valued the property at 2 Issues regarding custody, support, and visitation of the minor children (three at the time of the divorce) were settled between the parties and is not before the court on appeal. 2. $3,500 per acre or $42,200 collectively. Finally, Erne valued the properties containing horse stables at $98,000 (the parcel with the stables at $94,000, and two adjoining parcels at $2,000 each). {¶ 5} Appellee presented the valuation testimony of real estate broker David Amarante. Amarante testified that he helps clients buy and sell real estate and does property valuations or broker price opinions (“BPO”). Amarante explained that a BPO is not a “full-blown” appraisal but does involve touring the properties, analyzing MLS/auditor data, and using the comparable sales method. As to the marital home, Amarante assigned it a value of $180,000. Amarante further stated that he valued the 10- acre parcel as one piece of property instead of five parcels. He placed the value at $100,000 and indicated that a few houses could be built on it. Amarante agreed that there was a slight slope down from the road but stated that the rest of the property was “pretty flat.” Finally, Amarante valued the horse stables parcel and two adjacent parcels as one piece of property and assigned it the value of $150,000. {¶ 6} Appellee testified that appellant lost approximately $200,000 gambling over the course of their marriage. Appellee stated that both lines of credit were incurred due to appellant’s gambling debts. Appellant disputed this assertion and testified that the $80,000 debt was due to a spec house that they lost money on which coincided with the economic decline in 2006-2007. He stated that they lost approximately $60,000 on the deal. Appellant did admit that when he gambled it ranged from a couple hundred dollars to $1,000 on a given weekend. Appellant stated that the family was aware of the 3. gambling but that he hid the extent of his losses from appellee. Appellant also acknowledged that in a letter to appellee he expressed that his losing cost them dearly. Appellant stated that he stopped gambling on his own six to eight years prior and denied having an addiction. {¶ 7} Regarding the 2012 Cadillac SRX, appellant testified that he purchased the vehicle in the summer of 2014, and was the responsible party. On the date of the hearing the vehicle was valued at $23,379 and had a loan balance of $20,000. Appellant stated that it was purchased after the temporary orders were received in the case. {¶ 8} The magistrate issued his decision on February 24, 2017. Disputed in this appeal, as to the parties’ real property the magistrate found that the marital residence had a value of $189,000 and that the property with the horse stables had a value of $96,000. The magistrate then noted that the parcels were subject to a mortgage and a note with a balance of $213,610. The court then determined that $71,390 was available for equitable distribution. As to the five parcels of property located across the street from the marital home, the magistrate valued the parcels at $42,200 but that because the parcels are security for a loan and a line of credit with a balance of $106,840, the value for distribution was zero. {¶ 9} The magistrate divided the five motor vehicles owed by the parties. Specifically, as to the Cadillac SRX, the magistrate found that the vehicle was marital property and that $3,379 was available for equitable distribution. Finally, the magistrate determined that the unpaid debt of T.J. Hosang Construction, Inc., $27,212.10 on the line 4. of credit, was not proven by appellant to be incurred by actual business expenses “rather than, say, a cover for substantial gambling losses, as attested to by Defendant/Wife.” The magistrate then indicated that the value of the business would not be reduced by the balance due and owing. The magistrate ultimately found that appellant owed appellee the sum of $52,384.72 to equalize the property distribution. {¶ 10} On June 15, 2017, appellant filed three objections to the magistrate’s decision. First, appellant argued that the magistrate failed to factor the “negative equity” of the real estate; specifically, the fact that the value of the ten acres of farmland, $42,200, was substantially less than the $106,840 owed on the mortgage. Appellant also disputed the magistrate’s classification of the Cadillac as marital property and the magistrate’s failure to assign all the marital debt to the parties based upon his belief that appellant’s gambling debt was responsible for a significant portion of the parties’ debt. {¶ 11} On June 26, 2017, appellee filed an objection to the valuation of the 10 acres of farmland. Appellee argued that appellant’s expert’s testimony was incompetent because he valued the ten-acre parcel as five distinct parcels though two of the parcels were landlocked, thereby reducing its overall value. {¶ 12} After an independent review of the record, the trial court overruled both parties’ objections and adopted the magistrate’s decision. This appeal followed. Appellant/cross-appellee raises the following three assignments of error: 5.  I. The trial court erred in the property division of the parties by not factoring in the negative equity in the marital real estate owned by the parties. II. The trial court erred in the property division of the parties by not accounting for all marital debt of the parties without any specific finding of financial misconduct. III. The trial court erred in the property division of the parties by including into the division of marital assets the 2012 Cadillac vehicle. {¶ 13} Appellee/cross-appellant’s assignment of error provides: The trial court erred in the valuation it placed on the 10 acre parcel referred to in appellant’s brief as “farmland.” {¶ 14} We initially note that an appellate court may not reverse a trial court’s property allocation or valuation decisions absent a showing of an abuse of discretion. Cherry v. Cherry, 66 Ohio St.2d 348, 355, 421 N.E.2d 1293 (1981); Berish v. Berish, 69 Ohio St.2d 318, 319, 432 N.E.2d 183 (1982). In determining whether the trial court abused its discretion, a reviewing court cannot examine the valuation and division of a particular marital asset or liability in isolation. Briganti v. Briganti, 9 Ohio St.3d 220, 221-222, 459 N.E.2d 896 (1984). Instead, the reviewing court must view the property division in its entirety. Id. at 222. The trial court’s valuation, however, must be supported by the evidence. Middendorf v. Middendorf, 82 Ohio St.3d 397, 401, 696 N.E.2d 575 (1998). 6.  {¶ 15} We will simultaneously address appellant’s first assignment of error and appellee’s cross-assignment of error. Appellant argues that the trial court erroneously failed to offset the negative equity in the ten-acre parcel when dividing the parties’ marital assets and debts. We agree that negative equity in marital property can be used as an offset. As with all marital property division, whether to award a party negative equity is within the trial court’s discretion. Iacampo v. Oliver-Iacampo, 11th Dist. Geauga No. 2011-G-3026, 2012-Ohio-1790, ¶ 76, citing Tokar v. Tokar, 8th Dist. Cuyahoga No. 89522, 2008-Ohio-6467, ¶ 18. {¶ 16} Regarding the property at issue, at the August 28, 2015 hearing appellant testified that a loan balance of $213,609.53 was for the residence and adjacent land which included the horse stables. These properties were also used to operate his business. Appellant further stated that a $25,915 balance represented a line of credit secured by the properties. A balance of $80,924 was for the mortgage on the lots on S.R. 113 and another property that the parties had owned but lost a “considerable amount” of money on upon its sale. Appellant was not certain because the parties “had a bunch of loans” and their banker “consolidated different ones into different things * * *.” {¶ 17} Appellee testified that the parties’ original mortgage was paid in full and that they took out a second mortgage when they purchased the ten-acre parcel across the street and lost money on the spec home. Appellee stated that the balance was around $220,000. Appellee further testified that there was an additional mortgage on the stables 7. of about $80,000. Appellee testified that some of the bank indebtedness resulted from appellant’s gambling losses. {¶ 18} As set forth above and in dispute, the magistrate valued the S.R. 113 parcels, five parcels totaling approximately ten acres, at $42,200. Appellant stated that they spent $112,500 for the parcels and that they “severely overpaid” in order to keep development from occurring across from their residence. However, appellant testified that it would be very costly to build on the property because it is “severely sloped” and lacked proper drainage. Appellant explained that although he did not believe the development rumor, they still purchased the lots “[t]o keep it from being turned into anything other than farmland.” Appellant did agree that five home lots, with a deep set- back could be put on the property and that $9,000 was deducted from the purchase price to allow for a drainage ditch to be installed along the back. {¶ 19} Appellee claimed that the parties spent $120,000 for the parcels and that the slope appellant testified about was only “slight.” Also as set forth above, the parties’ respective experts gave widely divergent estimates of value and the court found appellant’s expert to be credible. However, the fact that the court did not award appellant negative equity was not an abuse of discretion. First, appellant testified that although he did not feel they were buildable, he purchased the parcels to prevent development across from his residence. Appellant was willing to “severely” overpay for this benefit. Next, appellant is retaining the properties across from the disputed parcels so he will continue to benefit from the purchase. Finally, absent any real evidence regarding the feasibility 8. of the development of the lots, we reject appellee’s argument in her assignment of error that the parcels should have been collectively valued at $100,000 as testified to by her expert. {¶ 20} Appellant’s first assignment of error is not well-taken. Appellee’s cross- assignment of error is not well-taken. {¶ 21} Appellant’s second assignment of error asserts that the trial court erred by disregarding the marital debt of the business without a specific finding of financial misconduct. Appellee counters that it was within the court’s province, as the assessor of the parties’ credibility, to reject appellant’s proffer relating to the business expenses. {¶ 22} Specifically, the magistrate first noted that the parties failed to obtain an expert opinion as to the value of TJ Hosang Construction, Inc. and that, despite the “dubious credibility” of the parties in “most aspects” of the case the business value would be placed at $34,000, with $26,576.43 available for distribution. As to the debts of the business, the magistrate noted a business line of credit with $27,212.10 was due and owing. The magistrate concluded, however, that: Plaintiff has produced no documentation to support that these borrowed funds were used for actual business expenses, rather than, say, a cover for substantial gambling losses, as attested to by Defendant/Wife. The Magistrate therefore finds that the value of the business should not be diminished by the balance alleged to be due and owing on the line of credit. 9.  {¶ 23} Reviewing the testimony of the parties, we cannot say that the court abused its discretion when it adopted the magistrate’s decision as to the value of the business. The testimony of the parties regarding the value was divergent and there was no expert testimony regarding the valuation. Appellant’s second assignment of error is not well- taken. {¶ 24} Appellant’s third and final assignment or error disputes the trial court’s classification of the equity in appellant’s 2012 Cadillac SRX as a marital asset subject to division. Appellant argues that the purchase of the vehicle was made following the parties’ separation and his filing of the complaint for divorce. Appellee counters that the trial court determined the duration of the marriage for property division purposes to include the purchase date of the vehicle. {¶ 25} In a divorce proceeding, property acquired during the marriage and held by a spouse is presumed to be marital property. R.C. 3105.171(A)(3)(a)(i). “During the marriage” generally means “the period of time from the date of the marriage through the date of the final hearing in an action for divorce.” R.C. 3105.171(A)(2). The party to a divorce action seeking to establish that an asset or portion of an asset is separate property, rather than marital property, has the burden of proof by a preponderance of evidence. Dunham v. Dunham, 171 Ohio App.3d 147, 2007-Ohio-1167, 870 N.E.2d 168 (10th Dist.), ¶ 20, citing Osting v. Osting, 3d Dist. Allen No. 1-03-88, 2004-Ohio-4159. {¶ 26} An appellate court reviews the trial court’s factual determination of whether property is marital or separate property based on a manifest weight of the 10. evidence standard. Carpenter v. Carpenter, 6th Dist. Wood No. WD-01-028, 2002 Ohio App. LEXIS 469, *5 (Feb. 8, 2002), citing Kelly v. Kelly, 111 Ohio App.3d 641, 642, 676 N.E.2d 1210 (1st Dist.1996). Accordingly, the judgment of the trial court will not be disturbed on appeal if supported by some competent, credible evidence. Fletcher v. Fletcher, 68 Ohio St.3d 464, 468, 628 N.E.2d 1343 (1994). {¶ 27} Appellant testified that he purchased the vehicle in the summer of 2014; the divorce action was filed in March 2014. Appellant testified that he purchased the Cadillac post-separation and after the temporary orders were received in the case. Appellant stated that the value of the vehicle was $23,379, and that he owed approximately $20,000 on the loan. Appellant stated that he wished to retain the vehicle. {¶ 28} Arguing that the Cadillac is his separate property, appellant relies on an Eighth Appellate District case which concluded that credit card debt incurred by one spouse following the divorce filing was not marital debt. Rossi v. Rossi, 8th Dist. Cuyahoga Nos. 100133, 100144, 2014-Ohio-1832. In Rossi, the court found that the trial court improperly classified post-filing credit card debt as marital property. Id. at ¶ 65. So finding, the court noted that the debts were not incurred for the “joint benefit of the parties;” rather, they were incurred solely for the benefit of the respective parties. Id. Further, testimony was presented the credit cards were used exclusively by each party and for their living expenses and that “[n]either party claimed that any of their credit card account balances were attributable to marital expenses pre-dating the parties’ separation or for a joint marital purpose.” Id. 11.  {¶ 29} In the present matter, at the August 28, 2015 hearing, appellant testified that he purchased the Cadillac SRX in the summer of 2014, following the parties’ separation and the issuance of the court’s temporary orders and that its value was $23,379, based on Kelley Blue Book pricing. Appellant stated that he signed the loan for the vehicle and that approximately $20,000 was due and owing. Appellant did not, however, testify as to the purchase price of the vehicle, any amount that was put down, or from where the payment funds originated. Ultimately, whether certain property is properly characterized as separate does not turn on when it was purchased; rather, whether any of the funds used were marital. Accordingly, we cannot say that the court erred by affirming the magistrate’s classification of the vehicle as marital. Appellant’s third assignment of error is not well-taken. {¶ 30} On consideration whereof, we find that substantial justice was done the parties complaining, and the judgment of the Huron County Court of Common Pleas is affirmed. The parties are ordered to equally share the costs of this action. Judgment affirmed. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4. 12.  Hosang v. Hosang C.A. No. H-17-013 Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/. 13. 

896 P.2d 214 (1995) The ESTATE of Chester P. LAMPERT, Through its Personal Representative, Jan THURSTON, Appellant and, Cross-Appellee, v. The ESTATE OF Helen Thelma LAMPERT, Through its Personal Representative, Grace STAUFFER, Appellee and Cross-Appellant. Nos. S-6233, S-6234. Supreme Court of Alaska. May 26, 1995. *215 Mark E. Ashburn, Ashburn & Mason, Anchorage, for appellant and cross-appellee. R.N. Sutliff, Anchorage, for appellee and cross-appellant Estate of Helen Thelma Lampert, through its Personal Representative, Grace Stauffer. Thomas P. Owens III, Burr, Pease & Kurtz, Anchorage, for appellee Grace E. Stauffer, Individually. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ. OPINION MOORE, Chief Justice. I. INTRODUCTION This case arises from the probate of the estates of Chester and Helen Lampert, husband and wife. The main issues in dispute are the validity of a postnuptial property agreement and the ownership rights to a condominium located in Hawaii. The lower court entered summary judgment in favor of the Estate of Helen Lampert, and after trial, awarded Helen's estate damages for lost use of property. Each estate appeals. We affirm the decision in part and reverse in part. II. FACTS AND PROCEEDINGS Chester and Helen Lampert were in their late fifties when they married in 1965. Each had adult children by prior marriages. Five years into their marriage, with the assistance of an attorney, the Lamperts entered into a postnuptial property agreement. Under the agreement, entitled the "Joint Submarital Agreement Waiving Rights to Receive One-Third of Net Estate of Spouse," the couple waived their statutory rights to take a one-third elective share of the other's estate, released all claims for dower, curtesy, or similar statutory rights of the surviving spouse, and pledged not to contest the other's will. Chester promised to deed their Anchorage home (the "Karluk residence"), together with its furniture and fixtures, to Helen, and Helen promised to provide Chester with a life estate in this property through her will. Chester further promised to arrange for Helen to receive $2,000 per month for the period which she might outlive him. Pursuant to this agreement, Chester immediately executed a warranty deed conveying the Karluk residence, its fixtures, and furniture to Helen. Chester also executed a will, which established a trust to provide Helen with the agreed upon cash payments. *216 Helen executed her own will, in which she granted Chester a life estate in the Karluk property. Several years later, in 1980, the Lamperts again met with an attorney to discuss estate planning. The two were advised that Chester would achieve significant estate tax savings if he were to commence an annual gift program during his lifetime. The discussion focused upon a condominium which Helen and Chester owned in a tenancy by the entirety with full rights of survivorship. The meeting resulted in Chester executing three quitclaim deeds to convey "his right, title, and interest" in the Hawaii condo to Helen's daughter, Grace Stauffer.[1] Helen signed none of these three deeds, and Stauffer paid nothing for the property. During this period, on two occasions Helen and Chester formally renewed their commitment to the terms of the "Joint Submarital Agreement." In December 1980, the Lamperts amended the agreement to increase the monthly payments due Helen to $5,000. The remaining terms were expressly "reconfirm[ed]." Again, in 1981 the Lamperts revised their wills. The provisions fully conformed with the couple's estate plan as embodied in the amended postnuptial agreement. Helen additionally certified at the conclusion of Chester's will that she "hereby reaffirm[ed]" the provisions of the couple's marital estate agreement. Despite these assurances, in September 1988, Helen secretly visited an attorney and modified her estate plan.[2] Helen executed a codicil to her will which stated that with regards to the Lamperts' postnuptial property agreement, "my legal rights were never adequately explained to me at the time of the execution of those documents, and ... the provisions applicable to me under my spouse's Will and Trust do not meet his obligations to me." The codicil deleted Chester's life estate in the Karluk furniture, and an amended trust revoked his life estate in the residence itself. Helen never told Chester about these events. Less than three months later, Helen died. Grace Stauffer was appointed the personal representative of the Estate of Helen Lampert. After Helen's death, the estate formally notified Chester that his life estate in the Karluk residence, fixtures, and furniture had been revoked. Chester did not vacate the property, however, and lived in the home until his death which followed several months later. Meanwhile, a title report prepared for the Hawaii property after Helen's death indicated that despite the three quitclaim deeds to Stauffer, Chester might in fact be the condo's true owner. Despite this revelation, Stauffer retained actual control over the Hawaii property. A few months before his death in August 1989, Chester brought suit against the Estate of Helen Lampert. Rather than seeking to enforce the couple's postnuptial agreement, Chester alleged that Helen's secret alteration of her estate plan entitled him to rescind their contract. Chester accordingly sought restitution of his consideration, title in fee simple to the Karluk residence, and made an election for one-third of Helen's estate. In a separate count, Chester sought possession of the Hawaii condo, under a theory that title passed to him as survivor and that previous attempts to unilaterally sever his interest in the property were legally ineffective and void. Shortly after Chester's death, the Estate of Helen Lampert filed and served Chester's attorney with a "Statement of Death of Party." Although Chester's estate failed to move the court to substitute a party within ninety days of the notice as required by Alaska Civil Rule 25(a), the court ultimately ruled that the delay constituted "excusable neglect." Following these events, the Estate of Helen Lampert filed a claim against the Estate *217 of Chester Lampert, based upon the refusal of Chester's heirs to vacate the Karluk residence. The claim sought possession of the Karluk residence and damages for lost use of the property for the period following Chester's death. Stauffer also initiated an individual claim against the Estate of Chester Lampert, requesting that title to the Hawaii condo be quieted in her. Finally, Chester's estate counterclaimed against Stauffer, demanding compensation for lost rental income based upon lost use of the Hawaii property. The entire matter was consolidated, and each estate moved for summary judgment. In addressing the continued effect of the Lamperts' postnuptial agreement, the lower court commented on the "extreme nature of rescission" and noted that the remedy is proper only in cases involving a material breach of contract. The court was unconvinced that Helen's actions amounted to a material breach since "the breach did not defeat the object of the parties." The court reasoned that because Chester was not ousted from the Karluk residence following Helen's death, Chester, in effect, received the promised life estate. The court additionally stated that based upon the circumstances, Chester received all of the other benefits that he bargained for under the contract.[3] Given the conclusion that Helen's actions did not amount to a total failure of consideration, the court refused to rescind the twenty-year-old warranty deed executed by Chester or allow him to elect a one-third spousal share of Helen's estate. The court went on to address the ownership of the Hawaii property. The court first recognized that under governing Hawaii law, a spouse may not unilaterally convey an interest in property that is held as tenants by the entirety.[4] In response to Stauffer's initial argument that title should nevertheless be quieted in her, the court refused to find that Chester acted as Helen's agent in the gift transfer to Stauffer. The court explained that the agency exception permitting a conveyance by one spouse in a tenancy by the entirety has not been formally recognized in Hawaii. The court was persuaded by Stauffer's alternative argument, however, that under both Alaska and Hawaii law, the equitable doctrine of quasi-estoppel bars Chester and his heirs from arguing that the earlier transfer was ineffective. Considering the totality of the circumstances, the court concluded that the Estate of Chester Lampert was estopped from denying Stauffer's ownership of the Hawaii property. The parties conducted a bench trial on the remaining question of damages. The court awarded the Estate of Helen Lampert $19,615.59 for lost use of the Karluk residence. An appeal and cross-appeal on behalf of each estate followed. III. DISCUSSION A. Failure to Timely Move for Substitution Before considering the merits, we briefly address a claim of procedural error advanced by the Estate of Helen Lampert. Helen's estate argues that Chester's claims should have been dismissed with prejudice after his death when his estate failed to timely move for substitution of parties. Helen's estate cites Alaska Civil Rule 25(a), which provides that once formal notice is filed that a party to litigation has died, a motion to substitute parties must be made within ninety days or "the action shall be dismissed as to the deceased party." In the present case, after Helen's estate filed the "Statement of Death of Party," 148 days elapsed with no motion to substitute. The lower court initially granted the estate's motion to dismiss with prejudice all actions brought by Chester Lampert. The court entertained a motion to reconsider, however, and after a hearing before a probate master, vacated the dismissal and granted the motion to substitute. In modifying its decision, the court relied upon Alaska Civil *218 Rule 6(b), which permits the court to enlarge the time specified for a filing upon a showing of "excusable neglect." We have held that a court's authority to enlarge the time allowable for an act pursuant to Rule 6(b) is a function addressed to the sound discretion of the trial court. State v. 1.163 Acres, More or Less, 449 P.2d 776, 779 (Alaska 1968). The court apparently considered several reasons offered by Chester's estate to justify the delay in moving to substitute. The estate explained that Chester's attorney did not initially appreciate the significance of the "Statement of Death of Party" filing because the form utilized by Helen's estate contained no reference to Rule 25(a). In addition, when co-counsel was retained for the estate, Chester's attorney neglected to forward the "Statement of Death" along with the other files. The estate asserted that these oversights were not undertaken in bad faith, and it contended that the Estate of Helen Lampert was on notice that Chester's personal representatives were actively pursuing the estate's claims because before the expiration of ninety days, the estate's new attorneys made an entry of appearance. Helen's estate urges us to reject these excuses, citing a need for speedy probate and alleging that prejudice was visited upon Helen's estate by the delay. Helen's estate explains that the heirs are generally of advanced age and ill health, and that the unnecessary delay in probate caused stress and increased the time during which the heirs were deprived of enjoying their mother's estate. Upon review of the record, we do not believe that the trial court was clearly mistaken in finding that the Estate of Chester Lampert showed excusable neglect in failing to timely move for substitution. The probate master characterized the delay in moving for substitution as "neglectful," but noted that Helen's estate was on notice of the claim and that she was not convinced that undue prejudice would result from leniency. The superior court did not clearly err in adopting the master's recommendations. We therefore affirm the decision granting the motions for enlargement of time and for substitution of parties. B. Standard of Review The remaining issues share a common procedural posture: the Estate of Chester Lampert appeals from the entry of summary judgment. In reviewing a grant of summary judgment, we must determine whether a genuine issue of material fact exists and, if not, whether one party is entitled to judgment as a matter of law. Newton v. Magill, 872 P.2d 1213, 1215 (Alaska 1994). In reviewing the lower court's findings of fact based upon a non-testimonial record, this court is free to reach an independent conclusion. When reviewing questions of law, this court applies its independent judgment. Summers v. Hagen, 852 P.2d 1165, 1169 (Alaska 1993). C. The Postnuptial Agreement The Estate of Chester Lampert appeals the entry of summary judgment refusing to rescind the couple's postnuptial agreement. We note at the outset that estate-planning agreements of the type used here are valid contracts. See AS 13.11.085 (providing that married couples may waive all rights of the surviving spouse by written contract executed before or after marriage); Brooks v. Brooks, 733 P.2d 1044, 1048 n. 4. (Alaska 1987) (observing that prenuptial agreements made in contemplation of death "since the time of Shakespeare" have been considered presumptively valid because they are seen as "conducive to marital tranquility and preventing unnecessary litigation"); McBain v. Pratt, 514 P.2d 823, 826 (Alaska 1973) (holding as enforceable a contract to make a specific devise or bequest). The usual rules of contract construction apply. See, e.g., In re Marriage of Ellinwood, 59 Or. App. 536, 651 P.2d 190, 192-93 (Or. App. 1982); Lund v. Lund, 849 P.2d 731, 739 (Wyo. 1993). In McBain v. Pratt, we stated that a contract to make a bequest or devise requires the promisor to execute, during his lifetime, a will in satisfaction of the contractual obligation. 514 P.2d at 826. Although any will so made remains entirely revocable by the testator, if at the moment of death the promisor has not made the agreed testamentary *219 gift, a breach of contract occurs. Id. The question presented by the case at bar requires us to assess whether, by secretly altering her estate plan, Helen materially breached the Lamperts' postnuptial contract. If Helen's actions were so material that they destroyed the "essence" of the bargain, under contract law, Chester's estate is entitled to rescission and restitution of benefits conferred. See, e.g., Restatement (Second) of Contracts §§ 372, 373 (1981) (providing that in instances of total breach of contract, the injured party may elect restitution to recover money or property as an alternative to expectation damages); 5 Arthur L. Corbin, Corbin on Contracts § 1104, at 562 (1964) (stating that the promisee is entitled to rescission and restitution when breach is total and goes to the contract's "essence"). States which have addressed whether to set aside a nuptial agreement for material non-performance have essentially required a showing of total breach. The lower court relied upon In re Estate of Johnson, 202 Kan. 684, 452 P.2d 286 (1969), a Kansas case stating that the right to rescission is not justified absent total failure of consideration: To warrant rescission, the breach must be material and the failure to perform so substantial as to defeat the object of the parties in making the agreement. A breach which goes to only a part of the consideration, which is incidental and subordinate to the main purpose of a contract, does not warrant rescission. Id. 452 P.2d at 292; see also Estate of Gillilan, 406 N.E.2d 981, 990 (Ind. App. 1980) (substantial breach goes to "material and vital" aspect of the contract and substantially defeats contract's purpose); Brees v. Cramer, 322 Md. 214, 586 A.2d 1284, 1288 (1991) ("breach of a covenant in a [nuptial] agreement does not, ipso facto, excuse performance of another covenant by the other party"). A Pennsylvania case elaborates: The question is whether [the variance from the contract] disturbed the essential fairness of the agreement that had been reached or changed the bargain to an extent that it can be said that to enforce the agreement would be tantamount to requiring the surviving spouse to be bound by an agreement to which she did not agree. In re Estate of Cummings, 493 Pa. 11, 425 A.2d 340, 342-43 (1981). Although we find that the lower court applied the correct standard to this dispute, we disagree with its conclusion that Helen's non-performance "did not defeat the object of the parties." The Lamperts' postnuptial contract was in place for approximately eighteen years and twice reaffirmed before Helen altered her estate plan. The agreement simply provided that the surviving spouse would waive the one-third elective statutory share and other significant rights of the surviving spouse in exchange for certain specific benefits. If Helen were the first to die, her only obligation was to leave her husband a life estate in the Karluk residence, its fixtures, and furniture. She died without satisfying this key term. Based upon the structure of the entire agreement, Helen's obligation to leave a will in compliance with the Lamperts' postnuptial contract cannot be termed "incidental and subordinate to the main purpose of [the] contract." In re Estate of Johnson, 452 P.2d at 292. The Lamperts' postnuptial agreement contained very few provisions, and, with the exception of Chester's promise to immediately grant Helen title to the Karluk residence, every term was conditioned upon the couple's order of death. Because the estate plan was intended to respond to various contingencies with discrete grants of cash or property, it is evident to us that those terms of the contract cannot be severed from one another. Helen's promise to grant Chester a life estate in the couple's home was a pivotal portion of the consideration given in formulation of the total agreement. We therefore conclude that by failing to cure her secret revocation of Chester's ownership rights to the home and its contents, and by explicitly expressing her desire to avoid the contract's terms, Helen disturbed the "essence" of the Lampert's postnuptial estate plan. The fact that Helen's heirs did not bring an action to oust Chester from the Karluk residence has no relevance to this determination. The lower court relied upon this factor, *220 observing that Chester "in effect had a life estate until his own death." What Chester bargained for under the "Joint Submarital Agreement," however, was title to a legal life estate in the property. As soon as Helen died without satisfying this obligation, she was in total breach of contract. Given that Helen unilaterally unraveled the Lamperts' agreed-upon estate plan, we hold that Chester's estate may treat the contract as a nullity. His duty to forbear from claiming the rights of the surviving spouse is therefore discharged, and his estate is entitled to be restored "to as good a position as was occupied by him before the contract was made." 5 Corbin, supra, § 1102, at 548. Under the circumstances, restitution requires the Estate of Helen Lampert to return the specific benefits which Chester conferred in furtherance of the contract. Title to the Karluk residence shall therefore be restored to Chester's estate.[5] D. Ownership of the Hawaii Condominium 1. Choice of law The Estate of Chester Lampert also appeals the entry of summary judgment estopping Chester's estate from denying Stauffer's ownership of the Hawaii condo. As a threshold matter, this issue presents a choice of law question. We adhere to the rule that matters pertaining to the validity of conveyances of real property are governed by the law of the situs of the property. E.g., Sylvester v. Sylvester, 723 P.2d 1253, 1257 (Alaska 1986) (looking to Hawaii law to assess whether a conveyance of Hawaii property was fraudulent); Hinchee v. Security Nat'l Bank, 624 P.2d 821, 822 & n. 1 (Alaska 1981) (applying Hawaii law to determine whether one spouse may unilaterally sell or mortgage property owned as tenants by the entirety). Following this line of authority, the law of Hawaii governs this dispute. 2. Quasi-estoppel The parties agree that looking at the face of the three quitclaim conveyances of the Hawaii property, no legal interest was successfully transferred to Stauffer. The general rule in Hawaii and many other states is that real property held in a tenancy by the entirety is not subject to levy and execution for the debt of one spouse and may not be unilaterally sold or alienated. See, e.g., Sawada v. Endo, 57 Haw. 608, 561 P.2d 1291, 1295-96 (Haw. 1977).[6] Strict application of this rule in the present case necessitates that in order to affirm the lower court's holding divesting ownership from Chester's estate, an exception to this general rule must be satisfied. Stauffer raised two theories below to support her retention of the property: agency and quasi-estoppel. The lower court rejected the first argument, reasoning that Hawaii has not yet recognized the agency exception, which in some states allows entireties property to be conveyed by one spouse when acting as the other's agent.[7] The court was persuaded by the second argument, however, and concluded that the equitable doctrine of quasi-estoppel forbids Chester or his estate from taking a position contrary to Chester's original belief that the gift transfer was fully effective. We agree with the lower court's *221 resolution of the case on quasi-estoppel grounds, and as such, we need not reach the argument based upon agency. In Godoy v. County of Hawaii, 44 Haw. 312, 354 P.2d 78 (1960), the Hawaii Supreme Court referred to quasi-estoppel as a "species of equitable estoppel ... which has its basis in election, waiver, acquiescence, or even acceptance of benefits and which precludes a party from asserting to another's disadvantage, a right inconsistent with a position previously taken by him."[8]Id. 354 P.2d at 82. At its root, the doctrine is based on the maxim that "one cannot blow both hot and cold." Id. at 82; see also University of Haw. Professional Assembly v. University of Haw., 66 Haw. 214, 659 P.2d 720, 726 (Haw. 1983). Case law demonstrates that the doctrine of quasi-estoppel is not rigidly applied in Hawaii. Godoy provides the following guidance: [Quasi-estoppel] is based upon the broad equitable principle which courts recognize, that a person, with full knowledge of the facts, shall not be permitted to act in a manner inconsistent with his former position or conduct to the injury of another. To constitute this sort of estoppel the act of the party against whom the estoppel is sought must have gained some advantage for himself or produced some disadvantage to another; or the person invoking the estoppel must have been induced to change his position, or by reason thereof the rights of other parties must have intervened. 354 P.2d at 82-83 (emphasis added). Like any equitable theory, the doctrine offers flexibility: "Estoppel by any name is based primarily on considerations of justice and fair play... ." University of Haw., 659 P.2d at 726. When these maxims are applied to the present case, several factors indicate that it would be inequitable to allow Chester to reverse his position, through his estate, at this late date. First, as Stauffer points out, Chester possessed full knowledge of the facts when he originally gifted over his interest in the Hawaii condo. Chester's estate does not claim that Chester was mistaken as to the identity of the property or about the fact that he intended to transfer it to Stauffer. In addition, Chester was advised by an attorney in the transaction, and he executed not one but three deeds to Stauffer over the course of several months. From his actions, we conclude that Chester's desire to transfer the property to Stauffer was informed and purposeful. Second, Chester's estate has now taken a position directly inconsistent with the original view that Stauffer owned Chester's interest in the condo. Chester's estate now relies upon an unclear title report and Hawaii law which existed at the time of the transfer, and contends that the original grant to Stauffer was wholly ineffective. Third, this change in position has worked to Stauffer's clear disadvantage.[9] As Stauffer explains, Chester fully acquiesced in her ownership of the condo for approximately eight years before filing the claim for title. Although it does not appear that Stauffer uses the condo as a home, the record demonstrates that she has generated rental income from the property. Stauffer is now in her late sixties and apparently living on a fixed *222 income. Given the circumstances, we believe the record demonstrates that in changing positions, Chester has "produced some disadvantage to another."[10] Finally, other basic equitable considerations indicate that estopping Chester's estate from asserting ownership in the Hawaii property would serve the notions of "justice and fair play." Stauffer was Chester's stepdaughter. Because the Lamperts mapped out their estate plan to give a very limited inheritance to the surviving spouse, unless her mother were to survive Chester, or barring a specific devise from her stepfather, Stauffer stood a very indefinite chance of ever inheriting a share in the Hawaii property. The idea for the 1980 inter vivos gift transfer to Stauffer was in fact entirely initiated and encouraged by Chester and his attorney. Thus, any disadvantage that Stauffer would now suffer from losing possession of the Hawaii property would be directly traceable to Chester's actions, and less so to her own.[11] We conclude that under the doctrine of quasi-estoppel as applied in Hawaii, fairness dictates that Chester's estate may not now gain from the imperfect conveyance which Chester originally intended to be effective. We therefore affirm the entry of summary judgment equitably estopping Chester's heirs from denying Stauffer's ownership of the Hawaii property and quieting title in her. IV. CONCLUSION The lower court properly granted the untimely motion for substitution made by the Estate of Chester Lampert and correctly resolved the dispute concerning the Hawaii property. However, the lower court erred in refusing to rescind the Lamperts' postnuptial property agreement and in compensating the Estate of Helen Lampert for lost use of the Karluk residence. AFFIRMED IN PART, REVERSED IN PART and REMANDED for entry of relief consistent with this opinion. NOTES [1] The conveyance was undertaken in two steps, one at the end of December 1980 and one at the beginning of January 1981, to take advantage of a $10,000 annual gift tax exclusion. The third conveyance, a deed of correction, was necessary to remedy a problem with the wording of the two previous grants. [2] Helen's daughter was present at this meeting, but Stauffer denies any active role in the events. She explains that her mother could no longer drive, and she simply assisted in getting her to the appointment. [3] The court noted that since Helen died first, she could not claim the monthly cash maintenance agreed to in the postnuptial agreement, nor would she ever claim an elective spousal share of Chester's estate. [4] Traders Travel Int'l, Inc. v. Howser, 69 Haw. 609, 753 P.2d 244, 246 (1988); Sawada v. Endo, 57 Haw. 608, 561 P.2d 1291, 1295-96 (1977); In re Dean's Trust, 47 Haw. 629, 394 P.2d 432, 440 (1964). [5] The lower court cited Easterling v. Ferris, 651 P.2d 677 (Okla. 1982), for the proposition that "[t]he cancellation of a deed is an exertion of the most extraordinary power of a court of equity. The power ought not be exercised except in a clear and exceptional case." Id. at 682. In our opinion, the facts of this case merit such relief. As the Easterling court noted, "[r]escission or cancellation of a deed may be ordered when that which was undertaken to be performed ... was so essentially a part of the bargain that the failure of it must be considered as destroying or vitiating the entire consideration of the contract or so indispensable a part of what the parties bargained for that the contract would not have been made without it.'" Id. (citation omitted). [6] Chester could not have successfully transferred even a one-half interest in the condo: "Neither husband nor wife has a separate divisible interest in the property held by the entirety that can be conveyed or reached by execution." Sawada, 561 P.2d at 1295. [7] See Murray v. Sullivan, 376 So.2d 886, 889 (Fla.App. 1979) (noting the possibility of a unilateral transfer when one spouse, with full knowledge of the facts, designates the other as his or her agent, the transfer does not adversely affect the interest of the spouse, and it occurs with his or her assent). [8] By contrast, traditional equitable estoppel "requires proof that one person wilfully caused another person to erroneously believe a certain state of things, and that [the] person reasonably relied on this erroneous belief to his or her detriment." Maria v. Freitas, 73 Haw. 266, 832 P.2d 259, 264 (Haw. 1992) (emphasis added). [9] Chester's estate contends that Chester gained no advantage from his change in position. The estate emphasizes that Stauffer paid nothing for the property. In this context, the lower court found that the transfer's main purpose was to shelter Chester from excessive estate tax. Because estate tax savings is not realized until death, however, at the time Chester changed his position and attempted to renege on the gift, the estate argues that Chester had not yet received any tangible financial advantage from the transfer. We do not find these arguments dispositive. Under Hawaii's application of quasi-estoppel, it is not necessary for the estopped party to have gained any tangible advantage from the transaction. Rather, it is sufficient to show that the party seeking, estoppel would suffer a distinct disadvantage from the change in position. See University of Haw., 659 P.2d at 725; Godoy, 354 P.2d at 82-83. [10] As further indication of disadvantage caused by Chester's change in position, Stauffer notes that for several years before their deaths, she provided extensive care-giving services to Chester and Helen. We ascribe no weight to this evidence. Whether these services contributed to Chester's motivation to gift the condo to Stauffer remains unclear. [11] We reject an argument made by Chester's estate that because Stauffer participated in the meeting during which Helen modified her estate plan, Stauffer has "unclean hands" and therefore cannot be accorded equitable relief. Chester's estate presents no evidence tending to show that Stauffer actively encouraged her mother to abandon the Lamperts' postnuptial agreement. Furthermore, even if there were sufficient evidence to demonstrate this fact, the parties' disputes over the Lamperts' postnuptial agreement and the ownership of the Hawaii condo are not factually related. See Shinn v. Edwin Yee, Ltd., 57 Haw. 215, 553 P.2d 733, 744 (Haw. 1976) (holding that "where the plaintiff's claim has no direct connection with the alleged misconduct ... the doctrine of `unclean hands' will not be invoked to defeat his claim").

267 F.2d 785 GARLAND COAL & MINING COMPANY, a corporation; CanadianMining Company, a corporation; Sallisaw Stripping Company, acorporation; and Ernie Young, an individual, d/b/a CaryConstruction Company, Appellants,v.Clifton FEW, Appellee. No. 6026. United States Court of Appeals Tenth Circuit. May 27, 1959.Rehearing Denied June 27, 1959. Anna B. Otter, Oklahoma City, Okl., and Kelly Brown, Muskogee, Okl. (John R. Couch of Pierce, Mock & Duncan, Oklahoma City, Okl., with them on the brief), for appellants. Woodrow H. McConnell and Ranel Hanson, Oklahoma City, Okl., for appellee. Before BRATTON, Chief Judge, PICKETT, Circuit Judge, and KNOUS, District Judge. PICKETT, Circuit Judge. 1 This action was brought by the owner of a 110 acre farm in Haskell County, Oklahoma, against three corporations and one individual who were jointly engaged in strip coal mining operations on lands adjacent to the plaintiff's property. The plaintiff alleged that the defendants' activities created a continuing nuisance and also caused damages from trespass. Damages were sought for injury to plaintiff's real property, improvements and crops; for loss occasioned when the mining activities necessitated an otherwise unplanned sale of livestock; for personal injury consisting of extreme mental anguish, physical discomfort, inconvenience and annoyance; and for loss the services and companionship of plaintiff's wife and for the necessary expenses of her medical care. The plaintiff also sought punitive damages and a judgment enjoining certain of defendants' activities and requiring the abatement of certain conditions. 2 There was no evidence to sustain the claims with respect to the livestock or the medical expenses and loss of consortium, and the case was submitted to a jury only upon the questions of actual damages for injury to plaintiff's property, punitive damages and damages for inconvenience, annoyance and discomfort of plaintiff. The jury returned a verdict in favor of the plaintiff in the sum of $4,500 actual damages, $3,625 punitive damages, and $500 actual damages for inconvenience, annoyance and discomfort. The verdict for actual damages of $4,500 was reduced by a remittitur to $2,419.51, and judgment in the sum of $6,544.51 was entered against the defendants. The court, concluding that certain of defendants' mining operations created a nuisance, ordered the abatement of those conditions which interfered with natural water courses on lands adjacent to plaintiff's property and enjoined such of the activities as damaged plaintiff in the free use and enjoyment of his land. The principal questions raised on appeal relate to instructions as to damages to plaintiff's property resulting from the alleged nuisance, the right to punitive damages, and abatement of conditions interfering with the natural flow of water. 3 Plaintiff's evidence established that in 1941 he purchased the farm in question, at which time there was limited amount of coal mining activity in the area. A six room house and other buildings were constructed, along with additional improvements, at a total cost of approximately $6,500. In 1951 there was some coal mining activity near plaintiff's property conducted by others than those involved in this action. In October, 1954 the defendants moved heavy machinery onto the property adjoining the plaintiff on the north, and began strip mining operations which, for the purpose of obtaining coal, necessitated the removal of the overburden from the underlying coal deposits. Within a short time the operations were extended to the property adjoining the plaintiff on the east. Throughout the time that the mining activities were being conducted by these defendants, explosives were used to loosen the overburden, which was then removed in long strips and placed in piles called 'spoil banks', next to the pits formed by this removal process. After removal of the coal, these pits were 40 to 50 feet in depth. Plaintiff testified that heavy charges of blasting poweder,1 some of which were exploded within 85 feet of his house, knocked putty from the windows of the house, caused its floors to sink, its foundation and walls to crack inside and outside, ruined his water well and damaged his outbuildings. He also testified that in addition to the dust caused by the blasting and use of machinery, the existence of the large piles of overburden, with coal dust on top, caused large amounts of dust to be blown onto his property and into his home and buildings; that the spoil banks 20 to 25 feet in height also had the effect of damming serveral natural water courses and diverting water into a single channel, thereby causing portions of his property to be excessively flooded during heavy rainfall, and that the digging of the deep pits created an unnatural drainage situation which caused his orchard to die for lack of water. Plaintiff also testified that the heavy machinery, in removing the overburden and coal, operated a very short distance from his house and property, twenty-four hours a day, and that trucks carrying coal passed within 15 feet of his house, creating additional noise and dust;2 and that the terrifying noise of the machines so close to the house prevented sleep at night. Plaintiff testified that he complained to the superintendent and other employees and asked that something be done to relieve the condition, but that he obtained no relief. 4 The court instructed the jury that a nuisance results when a person so uses his property as to cause a substantial injury to the property of another, and then stated that 'If the facts show the mining operations were being conducted in such manner as to constitute a private nuisance causing a substantial injury to the property of the plaintiff, then the plaintiff may recover compensation for the injury sustained, and the Constitution of Oklahoma provides that no private property shall be taken or damaged for private use with or without compensation unless by consent of the owner, and in cases of this character, the use need not be of a careless or negligent nature. Even though the defendants might not have been guilty of carelessness or negligence, as would be required in ordinary lawsuits, if in the use of their property along adjacent to the property of plaintiff, in their mining operations, they caused substantial injury to the property of the plaintiff, he has a right under the law to recover as for a private nuisance.' The defendants urge that this instruction is statement of strict liability, or liability without fault, and is an unwarranted interpretation of Article 2, 23 of the Oklahoma Constitution.3 5 This case arose in Oklahoma, and, of course, is controlled by Oklahoma law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. In a long line of decisions the Oklahoma courts have sustained recoveries under conditions and circumstances such as are shown here, without proof of negligence on the port of the defendants. City of Muskogee v. Hancock, 58 Okl. 1, 158 P. 622, L.R.A.1916F, 897; Tibbets & Pleasant v. Bendict, 128 Okl. 106, 261 P. 551; Fairfax Oil Co. v. Bolinger, 186 Okl. 20, 97 P.2d 574; Phillips Petroleum Co. v. Vandergriff, 190 Okl. 280, 122 P.2d 1020; British-American Oil Producing Co. v. McClain, 191 Okl. 41, 126 P.2d 530; Seismograph Service Corp. v. Buchanan, Okl., 316 P.2d 185;4 Smith v. Yoho, Okl., 324 P.2d 531; Superior Oil Co. v. King, Okl., 324 P.2d 847. 6 While seemingly conceding that the Oklahoma decisions have construed Art. 2, 23 of the Constitution to permit recovery without a showing of negligence in cases of this type, the defendants contend that each of those cases was premised on a tacit determination that the complained-of activity was of an ultrahazardous nature. From this, they urge, it follows that the instruction in this case was erroneous because it authorized recovery, without a finding of negligence, for all damage to the plaintiff and his property, even though some, if not all, of this damage was caused by activity that was not ultrahazardous. Although some of the cited cases arose out of situations which might be classed as ultrahazardous, there is no indication that the Oklahoma courts intended to limit the applicability of the constitutional provision to only such situations. In City of Muskogee v. Hancock, supra, the court held that the use of explosives in a populous area and within a few feet of plaintiff's building subjected the defendant to strict liability for damage caused by vibration and concussion. However, the court was troubled by the decisions in some jurisdictions, to the effect that absolute liability is imposed where the blasting cause physical objects to be propelled onto the plaintiff's property, but that where the injury results solely from concussion and vibration, recovery must be predicated on a showing of negligence. The court rejected this rule, partly because of the unjust results which it reaches, and partly because the eminent domain provision of the Oklahoma Constitution (Art. 2, 24) requires compensation in all cases where private property is damaged for public use. The Muskogee case was followed in Tibbets & Pleasant v. Benedict, supra, involving substantially identical facts. The court again stated that a rule requiring proof of negligence before damages are recoverable for injury caused solely by vibrations and concussions from blasting activity could not be adopted in the face of the Oklahoma Constitution. 7 A clear pronouncement of the purpose and effect of Sec. 23 is contained in Fairfax Oil Co. v. Bolinger, supra. The plaintiff was allowed to recover damages for the injury caused by vibrations from defendant's oil well drilling operations. The defendant's operations were perfectly legal, having been sanctioned by a zoning ordinance, and it was therefore argued that '* * * no recovery could be had without allegation and proof of some actionable negligence, or some unusual, unreasonable or improper use of defendant's property.' The court, after observing that defendant's contentions were predicated upon common law doctrine, said (186 Okl. 20, 97 P.2d 575): 8 'In this and many other states the common law rule does not obtain. Constitutional provisions have intervened to protect a property owner against losses in the nature of real and substantial injruy to his property, resulting from the use of adjacent or nearby property by its owner. * * * Though the use be legal, if property of another is substantially damaged as a result thereof, the latter may recover as for a nuisance in fact.' 9 The Fairfax case was followed in Phillips Petroleum Co. v. Vandergriff, supra, an action in which damages were recovered for injury to the plaintiff's house caused by vibrations from the motors used to operate defendant's booster station. As in the Fairfax case, the defendant's operations were properly located and were lawful, and there was no indication that they were ultrahazardous. British-American Oil Producing Co. v. McClain, supra, was another action growing out of damage caused by drilling operations. The court, in sustaining a judgment for plaintiff, said (191 Okl. 40, 126 P.2d 532): 10 'Defendants' argument is based upon the rule at common law. The acts complained of are in the nature of a private nuisance. Under the common law a private nuisance arose from the unwarrantable, unreasonable or unlawful use by a person of his own property to the injury of another. The nature of the use with regard to the particular locality or zone was the basic element for consideration in determining whether a private nuisance existed. 11 'But our Constitution has modified the common law. * * * In a case of this character the use need not be of a careless or negligent nature, or unreasonable or unwarrantable to entitle the injured party to recover.'5 12 The Court also held that the term 'private property' as used in Art. 2, 23 of the Constitution, is not limited to tangible subject matter, but includes the incidental right of the owner's peaceful occupancy and enjoyment of his premises and a recovery for the interference with that right was upheld. Considering the instructions as a whole, we conclude that they followed Oklahoma law and were not erroneous. 13 We do not agree with defendants' contention that there was insufficient evidence to sustain a verdict for exemplary damages.23 Okl.Stat.Ann. 9 provides that in an action for the breach of an obligation other than under a contract, 'where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant'. It has long been recognized that the theory of exemplary damages such as provided for in the foregoing statute is to set an example and punish the offender for the general benefit of the public. J. C. Penney Co. v. O'Daniell, 10 Cir., 263 F.2d 849; Tomlinson v. Bailey, Okl.,289 P.2d 384; Jordan v. Peek, Okl., 268 P.2d 242; Oden v. Russell, 207 Okl. 570, 251 P.2d 184; Empire Oil & Refining Co. v. Rawlings, 178 Okl. 391, 62 P.2d 1253; Tinker v. Scharnhorst, 129 Okl. 118, 263 P. 645. In Pure Oil Co. v. Quarles, 183 Okl. 418, 82 P.2d 970, 975, the court said that to entitle a plaintiff to recovery of exemplary damages, the proof must show some element of fraud, malice or oppression. The court then quoted the following statement from Keener Oil & Gas Co. v. Stewart, 172 Okl. 143, 45 P.2d 121: 14 '* * * 'the act which constitutes the cause of action must be actuated by, or accompanied with, some evil intent, or must be the result of such gross negligence, such disregard of another's rights, as is deemed equivalent to such intent.' * * *' 15 See also Fuller v. Neundorf, Okl., 293 P.2d 317; Fuller v. Neundorf, Okl., 278 P.2d 836; Ruther v. Tyra, 207 Okl. 112, 247 P.2d 964. It is quite evident from these Oklahoma decisions that exemplary damages are not limited to cases where there is direct evidence of fraud, malice or gross negligence, but may be allowed when there is evidence, of such reckless and wanton disregard of another's rights that malice and evil intent may be inferred. Considering the evidence most favorable to plaintiff, as we must, we think it was sufficient to support the jury's finding that the defendants' conduct amounted to a flagrant disregard of plaintiff's right to the enjoyment of his property. While the $3,625 verdict for exemplary damages may appear to be high, we are not inclined to interfere with the judgment of the jury and the District Judge in relation to it, with no showing that it was flagrantly outrageous, extravagant or that the jury was actuated by passion or prejudice. Tulsa City Lines v. Geiger, Okl., 275 P.2d 325; Oklahoma Transp. Co. v. Phillips, Okl., 265 P.2d 467; Kurn v. Margolin, 187 Okl. 135, 101 P.2d 818. The activities of the defendants were intermittently continuous from October 1954 to January 1958, and they knew what the effect was upon the plaintiff and his property but refused to do anything in an attempt to relieve the situation.6 The validity of the verdict for exemplary damages is not affected by an allowance of actual damages for a lesser amount, and we are not persuaded that the required remittitur of actual damages should have been accompanied by a relative reduction of the punitive damages. While exemplary damages must bear some relation to the injuries inflicted and the cause thereof, they do not necessarily bear any relation to the amount of damages allowed by way of compensation.7 15 Am.Jur., Damages, Sec. 270; Jordan v. Peek, supra; Moyer v. Cordell, 204 Okl. 255, 228 P.2d 645; Lilly v. St. Louis & S.F. Ry. Co., 32 Okl. 521, 122 P. 502, 39 L.R.A., N.S., 663; Annotation 17 A.L.R.2d 527, 535; Annotation 81 A.L.R. 913; Annotation 33 A.L.R. 384, 398. 16 The defendants assert that the court erred in submitting to the jury certain elements of permanent injury to plaintiff's land and to growing crops, when there was no evidence of the value of these items. Whatever error, if any, there may have been in submitting this question of actual damages was cured by the remittitur. The court limited the recovery to specific items which were supported by the evidence and stipulated by the parties to be $2,419.51. 17 The court's refusal to grant defendants' motion for a new trial on the ground of plaintiff's misconduct in the presence of the jury is assigned as error. The motion states that during a court recess the plaintiff accused one of defendants' witnesses of testifying to a falsehood. The affidavits of two persons were to the effect that this accusation was made in a loud voice while plaintiff was in an angry mood; that members of the jury were nearby and could have heard the accusation and conversation between the witness and plaintiff. A mistrial or a new trial may be granted when remarks about a case are made within the hearing of the jury, which the court believes may have influenced the jury to the prejudice of either party, but the action of the court on such motions is discretionary. 89 C.J.S. Trial 457; Franklin v. Shelton, 10 Cir., 250 F.2d 92, certiorari denied 355 U.S. 959, 78 S.Ct. 544, 2 L.Ed.2d 533; Cabiniss v. Andrews, Okl., 258 P.2d 180; Watts v. Elmore, 198 Okl. 141, 176 P.2d 220; Hope v. Gordon, 174 Okl. 368, 50 P.2d 669; Myers v. Cabiness, 44 Okl. 671, 146 P. 33. There is nothing in the record to indicate that the trial court abused its discretion in not granting a new trial. 18 Finally, it is contended that the court erred in ordering the abatement of the condition which caused surface waters to accumulate upon the lands occupied by the plaintiff and which diverted waters from their natural courses onto plaintiff's land in unusual and excessive quantities. The court, while recognizing that the mining operation, as conducted by the defendants, was a legal business and that they were entitled to develop their leases and extract coal therefrom, found that the operation was conducted in such a manner as to interfere with the natural water courses running from the land adjacent to plaintiff's land, thereby causing an unnatural accumulation and diversion of water onto plaintiff's land. There is no contention that this finding was not supported by evidence. The Oklahoma courts have consistently held that in cases of this kind, similar equitable relief may be granted. Gregory v. Bogdanoff, Okl., 307 P.2d 841; Culbertson v. Greene, 206 Okl. 210, 243 P.2d 648; Rainey v. Cleveland, 203 Okl. 283, 220 P.2d 261. 19 Affirmed. 1 An employee of the defendants testified that in blasting within 500 feet of plaintiff's house, the amount of explosives for a single shot varied from 2200 to 3000 pounds 2 In regard to this, plaintiff testified: 'Q. How is that equipment operated? A. It is operated by Diesel. 'Q. How about this pudge you have described? A. It is operated by Diesel. 'Q. Is there any other type of heavy equipment they use? A. Yes, sir. They have a loader which is similar to their pinner. It walks out on this boom and it has a bucket on it and it runs under this coal and digs it up and swings around and dumps it. 'Q. Did they use and operate this equipment in the vicinity of your home? A. Yes, sir, they sure did. 'Q. How close was it? West of me, from my house to where they were operating was, say, 85 feet. 'Q. That was the closest they ever got this heavy equipment? A. No. They got closer than that when they were operating east of me. They were operating within 50 feet of my house when they were operating east of me. 'Q. How did they operate this machinery and equipment you speak of? A. They operated this machinery 24 hours around the clock. They never did shut down. They run it 24 hours, around the clock. They had time to service it. They never did shut it down. Of course, the hauling part of it was mostly operated in daytime, although there was nights that they hauled until 9:00 or 10:00 o'clock at night. 'Q. By 'hauling', you mean hauling coal? A. Yes, sir. 'Q. Did they haul in the vicinity of your place at night? A. Yes, sir, they hauled a few nights. It wasn't too frequently they hauled at night but there was a few nights they hauled maybe from 8:30 to 9:00 o'clock at night. 'Q. Was that close to your house? A. They come right through in 15 foot of my house.' 3 Article 2, 23 of the Oklahoma Constitution provides: 'No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law.' 4 In Seismograph Service Corp. v. Buchanan, Okl., 316 P.2d 185, 187, the damage to plaintiff's farmhouse and other buildings was caused by seismograph explosions within 600 feet of plaintiff's property. The court reviewed the previous Oklahoma decisions involving damages from private nuisances, and quoted from British-American Oil Producing Co. v. McClain, 191 Okl. 40, 126 P.2d 530, 532, as follows: '* * * 'In a case of this character the use need not be of a careless or negligent nature, or unreasonable or unwarrantable to entitle the injured party to recover. If the use causes a substantial injury to the property of another, he may recover as for a private nuisance.' * * *' The court continued: 'This for the reason that our Constitution by Act. 2, 23, has modified the common law limitations on the doctrine of private nuisance. In view of these considerations, the defendant's argument that strict liability for its operations will unduly restrict economic development of a vital resource is not persuasive.' 5 The Court's syllabus in this case states: 'Where the facts show that a lawful business is being conducted in such manner as to constitute a private nuisance causing substantial injury to property, the aggrieved party may recover compensation for the injury sustained.' 6 The total disregard of the rights of the plaintiff is illustrated by a portion of plaintiff's testimony regarding his attempt to obtain some relief: 'Q. What, if anything, did you do about these explosions when they began to annoy you? A. Well, the first time I ever said anything to them was, I went down to the pit-- 'Q. You said to them; would you identify 'them'? A. I went to Joe Grebbs, who is the foreman over the operating of the machinery and pits and all. In other words, all the men is under his supervision. He is the general superintendent. 'Q. Whom does he work for? A. He works for Mr. Young. 'Q. Is that Ernie Young? A. That is Ernie Young, the one that owns the equipment, and I went down to the pit where he was at and I asked him in a nice way, I asked Mr. Grebbs, I said, 'Can't you stop those shots?' He said to me, he said, 'Yes, I could,' but he never did tell me he would and then I went back to him again after that and mentioned the fact he was coming up to the house at that time. I will say in two days he would have dug up within forty-five or fifty feet of my house and I went to him again and asked him if he would turn that machine around and dig the other way and I said, 'We can't sleep on account of this machine. It makes a terrific noise. It just pops like a cannon. They was aiming right at my house.' He didn't even respect me enough to turn it around, after me going to him. My children couldn't sleep and I couldn't sleep when they would swing that. Those exhausts that close had the windows breaking like glass, and they didn't respect me enough to turn it around and dig out the other way. 'Q. Did you tell Mr. Grebb or anyone working out there on that operation that your property was being damaged? A. Yes, sir, I mentioned it to Jim Cochreham. 'Q. Who is Jim Cochreham? A. He is the pit boss. He is working under the supervision of Mr. Joe Grebb and he sees, I suppose he bosses the shooting and the loading. 'Q. Bosses the shooting; that is, setting off the charges? A. Yes, sir. 'Q. What did you say to him? A. I asked him one evening, I went over to the truck where he was at and stood there and talked to him and I asked him if he could get Joe to split them shots down when they were operating so close to my house. He said, 'I am just working under Joe.' and I mentioned the facts to him that I had mentioned to Joe and he told me as far as his part was concerned, he was working for Joe.' 7 Exemplary damages are not recoverable in the absence of actual damages. Brown v. Higby, 191 Okl. 173, 127 P.2d 195; Oden v. Russell, 207 Okl. 570, 251 P.2d 184, 187; Moyer v. Cordell, supra

UNITED STATES of America, Plaintiff-Appellee, v. Derrick Dontea WALKER, Defendant-Appellant. No. 99-12242. United States Court of Appeals, Eleventh Circuit. Sept. 26, 2000. Appeal from the United States District Court for the Northern District of Florida. 9no. 98-00058-CR-1- MMP), Maurice M. Paul, Judge. Before COX, WILSON and GIBSON*, Circuit Judges. PER CURIAM: The issue presented in this appeal is whether the mandatory life sentence provided in 21 U.S.C. § 841(b)(1)(A) applies to a conviction for violating 21 U.S.C. § 846 by conspiring to commit a substantive drug crime that would itself be covered by 21 U.S.C. § 841(a)(1). Joining the position taken by the other three circuits that have addressed the issue, we hold that it does. BACKGROUND Derrick Walker was indicted on one count each of conspiracy to possess with intent to distribute cocaine base (crack) in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). Pursuant to a plea bargain, Walker pled guilty to the § 846 conspiracy count, while the government dismissed § 841(a)(1), the substantive possession count. The presentence report attributed two-and-a-half kilograms of cocaine base and 300 grams of powder cocaine to Walker. At sentencing, Walker objected to the application of 21 U.S.C. § 841(b)(1)(A), which provides in relevant that: "If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this title after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release." Although Walker conceded that he had two prior felony drug convictions, he contended that § 841(b)(1)(A) did not apply because his present conviction was based upon a conspiracy charge under § 846, which is not one of the sections listed in § 841(b)(1)(A). The district court overruled the objection and applied the provision, sentencing Walker to the * Honorable John R. Gibson, U.S. Circuit Judge for the Eighth Circuit, sitting by designation. mandatory sentence of life imprisonment under it. He appeals. DISCUSSION We review the district court's interpretation and application of the aforementioned statutes under the standard of de novo review as applied to all statutory interpretation involving sentencing. See United States v. Head, 178 F.3d 1205, 1206 (11th Cir.1999), cert. denied, --- U.S. ----, 120 S.Ct. 833, 145 L.Ed.2d 700 (2000). Walker's principal argument is that the plain language of § 841(b)(1)(A) rules out applying it to a § 846 conviction, because § 846 is not one of the sections listed in the statutory provision. See United States v. Koonce, 991 F.2d 693, 698 (11th Cir.1993) ("The canon of statutory construction that the inclusion of one implies the exclusion of others is well-established."). Walker is correct that the plain language of the statute involved resolves the issue before us, but the language directs us to a result opposite to the one advanced. Section 846 itself provides: "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 21 U.S.C. § 846 (emphasis added). The reference to "this subchapter" is to subchapter I of Chapter 13 of Title 21, and "any offense defined in this subchapter" includes the offenses defined in 21 U.S.C. §§ 841—863. Thus Walker's sentencing under 21 U.S.C. § 841(b)(1)(A) is covered by section 846. Walker was convicted of conspiring to commit one of those offenses described in subchapter I, specifically § 841(a)(1). By virtue of the plain language of § 846, Walker is subject to the same penalties for conspiring to commit the § 841(a)(1) offense as he would be for actually committing that offense. Because possessing 50 or more grams of cocaine base is "a violation of this subparagraph" as described in § 841(b)(1)(A) and Walker had two prior felony drug convictions, a mandatory life sentence applies for conspiring to commit a section 841(a)(1) offense. This is the same reasoning three other circuits have relied upon in holding § 841(b)(1)(A) applicable to § 846 conspiracy convictions. See United States v. O'Brien, 52 F.3d 277, 278-79 (9th Cir.1995); United States v. Gaviria, 116 F.3d 1498, 1534 (D.C.Cir.1997) (per curiam), cert. denied sub nom. Naranjo v. United States, 522 U.S. 1082, 118 S.Ct. 865, 139 L.Ed.2d 763 (1998); United States v. Wessels, 12 F.3d 746, 752 (8th Cir.1993). No circuit has held to the contrary. It should further be noted that Walker's reliance on United States v. Winston, 37 F.3d 235 (6th Cir.1994), is misplaced. In Winston, the Sixth Circuit held that drug quantities from two separate transactions could not be aggregated to reach the quantity threshold required for application of § 841(b)(1)(A). See Winston, 37 F.3d at 240-41. Winston would be relevant if Walker was arguing that the district court erred in attributing more than 50 grams of cocaine base to him (the threshold amount application of § 841(b)(1)(A)). But Walker did not raise any objections to the PSI finding that he was responsible for two and one-half kilograms of cocaine base and 300 grams of powder cocaine for this single offense. The district court did not plainly err by using the quantity of drugs specified in the PSI as a basis for sentencing Walker. See United States v. Hedges, 175 F.3d 1312, 1315-16 (11th Cir.1999) (holding that the district court did not err in relying on statements in presentence investigative report where the statements were undisputed by the defendant), cert. denied, --- U.S. ----, 120 S.Ct. 265, 145 L.Ed.2d 222 (1999).1 Therefore, the district court's imposed sentence of life imprisonment stands. CONCLUSION We conclude that the district court properly applied 21 U.S.C. § 841(b)(1)(A) in sentencing Walker, as the plain language of the statute dictates the result. AFFIRMED. 1 This case is also clearly distinguishable from Apprendi v. New Jersey, submitted by Walker as supplemental authority supporting his case. --- U.S. ----, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the Supreme Court required that during a jury trial, the government must be made to prove and the jury convict on the factual evidence necessary for a sentence enhancement beyond the statutory maximum. As Walker pled guilty in this case and accepted the contents of the PSI, he lost any right to appeal on the basis of this argument. 

283 F.2d 117 Ethel Foote STARKE, Trustee under the Last Will and Testament of Lewis A. Foote, Deceased, Plaintiff-Appellant,v.MANUFACTURERS NATIONAL BANK OF DETROIT, a national banking association, Defendant-Appellee. No. 14050. United States Court of Appeals Sixth Circuit. October 18, 1960. Joseph H. Guttentag, Detroit, Mich., R. M. Waterman, McClintock, Fulton, Donovan & Waterman, Detroit, Mich., on brief, for appellant. Carson C. Grunewald, Detroit, Mich., Henry C. Bogle and Bodman, Longley, Bogle, Armstrong & Dahling, Detroit, Mich., on brief, for appellee. Before MILLER, WEICK and O'SULLIVAN, Circuit Judges. PER CURIAM. 1 Appellant brought this action for alleged breach of a contract, executed in September, 1933, by which the owner of a patent for a System of Accrual Accounting, issued February 15, 1927, granted to appellee the right to use the patented system in connection with its banking operations. The system included the use of the patent and contemplated the use of particular copyrighted accounting forms, such as Interest Tables, Pro rata Tables and Accrual Ledger Control Sheets, with printed instructions which accompanied them. The owner of the system promised to sell appellee these forms at reasonable prices, and appellee promised not to purchase forms used with the System from anyone else. 2 The contract provided that in the event the appellee absorbed other banks, "which at such time are not licensed to use the System", the right and license to use and apply the System to the assets of such absorbed banks could be obtained for certain payments therein designated. 3 The patent expired February 15, 1944. 4 About July, 1952, and November, 1955, appellee absorbed two Detroit banks and thereafter continued the use of the same accrual accounting methods as it used prior to such dates, in connection with all of its combined assets and accounts. 5 The appellee declined to make the payments provided by the paragraph of the contract with reference to the assets of the merged banks, hereinabove referred to. This action followed. 6 The District Judge ruled that the contract granted to appellee a nonexclusive license to use the patented system; that a licensing agreement terminates with the expiration of the patent; that when the appellee applied the system to the assets of the two absorbed banks, the system was in the public domain; and that it would be an unreasonable construction of the contract to interpret it to require the appellee to obtain a license for the use of the system at a time when any bank or anyone else could have used the system without obtaining permission to do so. A discussion of the issue with citation of authorities is contained in his opinion. 7 We concur in the ruling of the District Judge for the reasons stated in his opinion. 8 The judgment is affirmed.

610 F.2d 1000 198 U.S.App.D.C. 58 U. S.v.Garris No. 79-1375 United States Court of Appeals, District of Columbia Circuit 11/7/79 1 D.C.D.C. 2 VACATED AND REMANDED*

MARY'S OPINION HEADING                                                 NO. 12-07-00404-CV   IN THE COURT OF APPEALS   TWELFTH COURT OF APPEALS DISTRICT   TYLER, TEXAS §                      APPEAL FROM THE IN THE INTEREST OF §                      COUNTY COURT AT LAW C.M., A CHILD §                      HOUSTON COUNTY, TEXAS                                                                                                                                                             MEMORANDUM OPINION PER CURIAM             This appeal is being dismissed for want of jurisdiction pursuant to Texas Rule of Appellate Procedure 42.3(a).  The trial court’s judgment was signed on April 12, 2007.  Under rule of appellate procedure 26.1(a), unless Appellant timely filed a motion for new trial or other postjudgment motion that extended the appellate deadlines, his notice of appeal was due to have been filed “within 30 days after the judgment [was] signed,” i.e., May 14, 2007.             Appellant filed his notice of appeal on October 31, 2007, but did not file a motion for new trial.  Because the notice of appeal was not filed on or before May 14, 2007, the notice was untimely filed and this court has no jurisdiction to consider the appeal.             On October 31, 2007, this court notified Appellant pursuant to Texas Rule of Appellate Procedure 42.3(a) that his notice of appeal was untimely.  Appellant was further informed that unless the record was amended on or before November 13, 2007 to establish the jurisdiction of this court, the appeal would be dismissed.  This deadline has passed, and Appellant has neither shown the jurisdiction of this court or otherwise responded to its October 31, 2007 notice.1             Because this court is not authorized to extend the time for perfecting an appeal except as provided by Texas Rules of Appellate Procedure 26.1 and 26.3, the appeal is dismissed for want of jurisdiction.  See Tex. R. App. P.  42.3(a).              Opinion delivered November 30, 2007.             Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.                                       (PUBLISH) 1 The materials received in this appeal include a copy of a letter to the Houston County District Clerk by which Appellant transmitted his notice of appeal and a request for findings of fact and conclusions of law.  As a general rule, a request for findings of fact and conclusions of law must be filed within twenty days of the date the judgment was signed.  Tex. R. Civ. P. 296.  Appellant did not file his request within the prescribed time frame.  In a contested child support case, the request for findings of fact and conclusions of law may be made orally during the hearing or in writing, filed not more than ten days after the hearing.  Tex. Fam. Code Ann. § 154.130(a) (Vernon Supp. 2007).  Because Appellant did not respond to our October 31, 2007 notice, we assume that this subsection is not applicable here.

740 F.Supp.2d 950 (2010) NATIONAL JOCKEY CLUB, Plaintiff, v. Floyd "Chip" GANASSI and Chip Ganassi Group, LLC, Defendants. No. 04 C 3743. United States District Court, N.D. Illinois, Eastern Division. September 14, 2010. *953 James R. Pranger, Neal, Gerber & Eisenberg, Jeralyn Hartwick Baran, Carri Ann Conlon, David Seth Argentar, Meredith Marie Casper, Chuhak & Tecson, P.C., Chicago, IL, for Plaintiff. Brian William Bell, Alfred Kirkland Murray, II, Swanson, Martin & Bell, Keely V. Lewis, Conway & Mrowiec, Chicago, IL, Eric Soller, Pietragallo, Gordon, Alfano, Bosick & Raspanti, LLP, Pittsburgh, PA, for Defendants. MEMORANDUM AND ORDER BLANCHE M. MANNING, District Judge. This case flows from the transformation of Sportsman's Park, a horse racing venue *954 in Cicero, Illinois, owned by plaintiff National Jockey Club ("NJC"), into the Chicago Motor Speedway ("CMS"), an ultimately unsuccessful facility for horse and auto racing. To effect this transformation, NJC and defendant Chip Ganassi Group, LLC ("Ganassi Group") formed CMS, an Illinois limited liability company. Construction was financed through a construction loan and capital contributions by NJC and Ganassi Group. In addition, defendant Floyd "Chip" Ganassi, who is involved in professional motor racing as both a driver and operator of motor racing teams in the United States, personally guaranteed CMS's obligations under the lease up to $22.5 million, although that amount was subsequently reduced to $10.5 million. The court found that certain issues were equitable and thus had to be decided by the court. It then held a jury trial, and the jury awarded damages to NJC on its breach of contract claim against Mr. Ganassi based on the guaranty and to Ganassi Group based on its breach of contract counterclaim based on a contract between NJC and Ganassi Group regarding operation of CMS. Three post-trial motions are before the court: (1) NJC's renewed motion for judgment as a matter of law as to defendants' counterclaims or, in the alternative, for a new trial; (2) Mr. Ganassi's renewed motion for a new trial; and (3) Mr. Ganassi's motion for judgment as a matter of law. In addition, Mr. Ganassi's claim for rescission or, alternatively, a set-off are before the court as these issues were reserved for a bench trial. For the following reasons, the parties' post trial motions are denied and the court finds that Mr. Ganassi is not entitled to rescission or a set-off. I. Background The court begins with a brief summary of the facts presented at trial, the jury's verdict, and the equitable issues remaining for the court's determination. A. The Parties In 1928, Al Capone opened Sportman's Park in Cicero, Illinois, as a dog racing venue. By the time of the events at issue in this lawsuit, NJC (an Illinois corporation with its principal place of business in Illinois) owned and operated Sportsman's Park and featured pari-mutuel horseracing there.[1] Defendant/counterplaintiff Floyd "Chip" Ganassi is a former racecar driver who currently operates professional motor racing teams and is a citizen of Pennsylvania. Ganassi Group LLC ("Ganassi Group") is a limited liability company whose members consist of Mr. Ganassi and Chip Ganassi Racing Teams, Inc. ("Teams"), a Michigan corporation with its principal place of business in Michigan. B. Chicago Motor Speedway 1. The Operating Agreement In 1997, representatives of NJC met with Mr. Ganassi and his representatives to discuss the idea of converting Sportsman's Park into a facility for both horse and auto racing. Mr. Ganassi decided to form Ganassi Group, and then NJC and Ganassi Group agreed to form a limited liability company known as Chicago Motor Speedway, LLC ("CMS"). On March 10, 1999, NJC and Ganassi Group thus executed *955 the "Chicago Motor Speedway Limited Liability Company Operating Agreement" (the "Operating Agreement"). CMS was a manager-managed Illinois limited liability company. Under the Operating Agreement, Ganassi Group and NJC served as members of CMS, and four managers were appointed to act as managers of CMS. 2. The Lease and Personal Guaranty On July 8, 1998, NJC, in its capacity as landlord of the Sportsman's Park facility, entered into a lease under which CMS was the tenant and leased the real property and racing facilities at Sportsman's Park for the purpose of conducting motor sports events (the "Lease"). Mr. Ganassi's personal guaranty was part of the Lease and provided, in pertinent part, that: For value received, and as consideration and inducement for National Jockey Club to enter into the above and foregoing Lease with the Chicago Motor Speedway, LLC of which this personal guaranty is a part, the undersigned, Mr. Chip Ganassi of Pittsburgh, Pennsylvania, does hereby personally guaranty repayment of fifty percent (50%) of funds borrowed to make Landlord Improvements as set forth in Section 8(a) of the above and foregoing lease but limited to a maximum personal guaranty of $22,500,000.00; provided however, that National Jockey Club and Chicago Motor Speedway L.L.C. agree to use their best reasonable efforts to remove and vacate the requirement of the personal guaranty of Chip Ganassi as soon as acceptable to the lender(s) of the aforesaid primary financing for Landlord Improvements for which Chip Ganassi provides his personal guaranty. In addition to the foregoing, Chip Ganassi, National Jockey Club, and the Chicago Motor Speedway L.L.C. agree to use their best efforts to remove and vacate the requirement for any required mortgage of the Premises by National Jockey Club as soon as acceptable to the lender(s) of the aforesaid primary financing for Landlord Improvements for which National Jockey Club may be required to provide a mortgage on the Premises. The agreement to use best efforts to remove and vacate the Personal Guaranty of Chip Ganassi and the required mortgage of National Jockey Club are separate, distinct, and independent obligations and considerations of the parties to this Lease Agreement, and the accomplishment of one is not contingent on the accomplishment of the other. NJC's Ex. 28. 3. Financing Chicago Motor Speedway NJC and Mr. Ganassi understood that converting Sportsman's Park into a horse/motor sports venue was a very expensive proposition. They anticipated that NJC, the owner of the Sportsman's Park facility, would need to mortgage the Sportsman's Park property and improvements as security for financing and that Mr. Ganassi would need to personally guarantee the loans necessary to secure the funds needed to transform the property. They also contemplated that Teams would pledge its 720,000 shares of Championship Auto Racing Teams, Inc. ("CART") as additional security. On November 18, 1998, NJC executed a Construction Loan Agreement ("CLA") with Harris Bank, N.A., and a syndicate of other banks (the "Bank Group") to partially finance construction of CMS. As security for the loan, NJC granted the Bank Group a mortgage and security interest in the Sportsman's Park property and improvements, including the new facilities to be built with the loan proceeds. In addition, Teams pledged 720,000 shares of CART stock by executing a Pledge Agreement. *956 The next day, the Lease and Mr. Ganassi's personal guaranty were assigned to the Bank Group. 4. The Eighth Amendment Beginning in 2000, Teams sought to obtain the Bank Group's consent to release the Bank Group's security interest in the CART stock. On July 11, 2001, NJC, each of the banks in the Bank Group, and Mr. Ganassi (individually and on behalf of Teams) executed a document entitled "Eighth Amendment, Waiver and Consent to Construction Loan Agreement" (the "Eighth Amendment"). The Eighth Amendment provided in relevant part that: Racing Teams has heretofore executed and delivered to the Agent its Pledge and Security Agreement (the "Pledge Agreement") as of and the Guarantor has executed a personal guaranty of the Lease and each hereby consents to the Eighth Amendment, Waiver and Consent to the Construction Loan Agreement as set forth above. The Guarantor confirms that his guaranty of the Lease and all of its obligations thereunder remain in full force and effect to the extent of $10,500,000. Each of the undersigned further agrees that the consent of the undersigned to any further amendments to the Agreement shall not be required as a result of this consent having been obtained. NJC Ex. 102. Pursuant to the Eighth Amendment, the Bank Group released their security interest in the CART stock in exchange for a payment of $12,000,000 on the outstanding loan balance. In addition, as part of this transaction, Mr. Ganassi's $22,500,000 guaranty was reduced to $10,500,00. See id. 5. The Demise of CMS Unfortunately for all involved, the CMS project was not a success. Thus, in February of 2002, NJC and Ganassi Group agreed to cease operations at the facility and CMS defaulted on the CLA. Harris Bank, acting for the Bank Group, declared the loan in default. From February until August of 2002, Patricia Bidwell (the newly named Chairman of the Board at NJC) worked with the Bank Group to renegotiate the CLA. These efforts were not fruitful, and NJC was eventually forced to sell the Sportsman's Park facility and improvements to the Town of Cicero to pay down the CLA. On October 16, 2002, NJC sent CMS and Mr. Ganassi a letter stating that NJC considered CMS to be in default under the Lease and thus was terminating the Lease. Both NJC and Mr. Ganassi each blamed the other for failing to meet CMS's financial obligations. In 2006, while this case was pending, the Bank Group sold the note associated with NJC's loan to DII Northwest, which called it. Since NJC could not cover the amounts it owed, it filed for protection under Chapter 11 of the United States Bankruptcy Code. In the bankruptcy case, the parties reached a settlement regarding the distribution and allocation of any proceeds recovered by NJC in this case. C. The Trial At trial, NJC litigated its single claim against Mr. Ganassi, contending that he failed to meet his obligations under the guaranty after CMS went into default. The jury returned a verdict in favor of NJC and against Mr. Ganassi in the amount of $8,850,000.00. With respect to the defendants' claims, by the time trial commenced, Ganassi Group's single counterclaim against NJC was for breach of § 6.1 of the CMS Operating Agreement, which provided that: 6.1 Authority: Liability to Third Parties; Member Independence. No Member *957 has the authority or power to act for or on behalf of the Company to do any act that would be binding on the Company, or to incur any expenditures on behalf of the Company. No Member shall be liable for the debts, obligations or liabilities of the Company, including under a judgment decree or order of a court. Except as otherwise specifically provided herein, neither the Company nor any Member shall have any rights in or to any ventures pursued by any other member or the income or profits therefrom, whether taking place at Sportman's Park, Cicero, Illinois[,] or elsewhere. NJC Ex. 29, § 6.1. The jury returned a verdict in favor of Ganassi Group and against NJC on this claim in the amount of $4,000,000.00. Following the rendering of the verdicts, the court took Mr. Ganassi's rescission claim and Mr. Ganassi's set-off affirmative defense under advisement and asked the parties to brief these issues with their post-trial motions.[2] NJC then renewed its motion for judgment as a matter of law as to defendants' multi-count counterclaim or, in the alternative, for a new trial. In turn, Mr. Ganassi renewed his motions for a new trial and for judgment as a matter of law. He also filed a memorandum in support of his counterclaim seeking rescission or, alternatively, an order authorizing set-off of the jury verdict in favor of Ganassi Group on its counterclaim against the jury verdict in favor of NJC and against him personally. For the following reasons, the court finds that Mr. Ganassi is not entitled to rescind the guaranty or to receive a set-off. It also denies all of the remaining post-trial motions except NJC's motion for judgment as a matter of law as to Counts II and IX of Ganassi Group's counterclaims, which is granted. II. NJC's Motion for Judgment as a Matter of Law as to Defendants' Counterclaims Or, Alternatively, for a New Trial When considering a motion for judgment as a matter of law, the court must consider "whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in the light most favorable to the party against whom the motion is directed." Wallace v. McGlothan, 606 F.3d 410, 418 (7th Cir. 2010). At trial, the Ganassi Group proceeded with Counts II and IX of its counterclaims (breach of the duty of good faith and fair dealing based on the Lease and Operating Agreement and breach of the Lease and Operating Agreement, respectively). Alternatively, the Ganassi Group sought rescission of the Lease and Operating Agreement pursuant to Count X of its counterclaims. See Dkt. 335-1 (Ganassi Group's election of remedies, attached to NJC's renewed motion for judgment as a matter of law). NJC's motion for judgment as a matter of law as to defendants' counterclaims or, alternatively, for a new trial seeks judgment as a matter of law as to Counts II and IX based on four theories: (1) Ganassi Group lacks standing to pursue claims because it cannot pursue claims on behalf of CMS; (2) Ganassi Group did not suffer damages as a result of the alleged breach of the Operating Agreement and cannot *958 recover based on damages CMS suffered; (3) Ganassi Group is neither a party to the Lease nor a third-party beneficiary of the Lease and thus cannot pursue claims based on an alleged breach of the Lease; and (4) the Ganassi Group cannot seek to rescind the Lease and Operating Agreement because the parties cannot be returned to the status quo existing prior to the execution of these documents. Alternatively, NJC requests that if its motion for judgment as a matter of law is granted as to the rescission counterclaim (Count X), it is entitled to a new trial and in support, directs the court's attention to §§ (A) and (B) of its original motion for judgment as a matter of law, Dkt. 316. A. Ganassi Group's Standing to Pursue Claims on Behalf of CMS and to Seek Damages Under the Operating Agreement The court will address NJC's first arguments together. As noted above, NJC and Ganassi Group formed CMS and were parties to the Operating Agreement. According to NJC, the testimony at trial showed that CMS, not Ganassi Group, incurred injuries as a result of the demise of the CMS project because the injuries claimed by Ganassi Group flow from NJC's allegedly improper allocation of expenses and, specifically, NJC's charging of certain of its expenses to CMS instead of itself. NJC thus concludes that because CMS was the injured party, and Ganassi Group did not sue derivatively on behalf of CMS, Ganassi Group lacks standing to pursue claims that properly belong to CMS. Approaching this argument from a slightly different angle, NJC contends that the evidence shows that CMS—not Ganassi Group—suffered damages as a result of the alleged breach of the Operating Agreement. Hence, NJC concludes that Ganassi Group cannot recover damages. In response, Ganassi Group points to the Illinois Limited Liability Company Act, which provides in pertinent part that: Actions by Members (a) A member may maintain an action against a limited liability company or another member for legal or equitable relief, with or without an accounting as to the company's business, to enforce all of the following: (1) The member's rights under the operating agreement. (2) The member's rights under this Act. (3) The rights and otherwise protect the interests of the member, including rights and interests arising independently of the member's relationship to the company. 805 ILCS § 180/15-20. CMS was a limited liability company, and NJC and Ganassi Group were both members of CMS. Moreover, NJC and Ganassi Group were the parties to the Operating Agreement. To the extent that NJC is arguing that Ganassi Group may not file suit at all based on Ganassi Group's claims about CMS's finances (an argument NJC made in its initial motion but retreated from in its reply), NJC is incorrect as Ganassi Group may file suit based on its own injuries incurred in connection with CMS's financial dealings. Moreover, Ganassi Group claims that the alleged accounting malfeasance overinflated the contributions it was supposed to make to CMS and wrongfully benefitted NJC because NJC underfunded its contributions to CMS. Ganassi Group presented evidence at trial in support of these theories. Thus, Ganassi Group presented evidence that it directly incurred damages due to the alleged breach of the Operating Agreement. This means that NJC's damages argument based on its attempt to *959 distinguish between damages allegedly incurred by CMS versus Ganassi Group is unavailing. B. Ganassi Group—The Lease Next, NJC contends that Ganassi Group is neither a party to the Lease nor a third-party beneficiary of the Lease and thus cannot pursue claims based on an alleged breach of the Lease. This argument relates to Counts II and IX of Ganassi Group's counterclaims. The parties to the Lease were NJC (landlord) and CMS (tenant), while Mr. Ganassi's execution of the guaranty meant that pursuant to the guaranty, Mr. Ganassi was also bound by the Lease. In response, the defendants assert that Mr. Ganassi was a party to the Lease. Dkt. 348 at 6-7. They do not, however, point to any authority indicating that Mr. Ganassi is interchangeable with Ganassi Group, so that Ganassi Group can proceed with breach of contract claims directed at the Lease when it is not itself a party to the Lease. Because Ganassi Group only discusses Mr. Ganassi's connection to the Lease in its response and does not point to evidence supporting an inference that it was either a party to the Lease or an intended third-party beneficiary of the Lease, Ganassi Group has forfeited any claim that it—as opposed to Mr. Ganassi—can proceed on a breach of contract claim based on the Lease. In any event, however, the court notes that while Counts II and IX of the defendants' counterclaims are directed at both the Lease and the Operating Agreement, the verdict form (dkt. 322) only addresses the Operating Agreement, and not the Lease. NJC's motion for judgment as a matter of law as to the portions of Counts II and IX of Ganassi Group's counterclaims directed at the Lease must, therefore, be denied as the jury did not render a verdict in favor of Ganassi Group regarding the Lease. C. Rescission According to NJC, the Ganassi Defendants did not offer evidence showing that National Jockey Club, Mr. Ganassi and Ganassi Group can be restored to the status quo ante. NJC thus contends that the Ganassi defendants cannot attempt to rescind the Lease or Operating Agreement. See Martin v. Heinold Commodities, 163 Ill.2d 33, 205 Ill.Dec. 443, 643 N.E.2d 734, 746 (1994) ("the restoration of the party against whom the relief is sought, or the offer to restore him, to the position which he occupied before the transaction complained of took place, is a condition precedent to the right to rescind"). The court disagrees with the Ganassi Group's contention that the court already resolved this issue in its favor. In fact, the court expressly reserved judgment on this question. See Dkt. 253 at 8-11. The parties then rely on their arguments presented in connection with Mr. Ganassi's memorandum in support of his counterclaim for rescission. The court will address the rescission issue below in § V of this opinion. D. NJC's Motion for a New Trial NJC argues that it is entitled to judgment as a matter of law as to Ganassi Group's rescission counterclaim (Count X). As noted above, in support it directs the court's attention to §§ (A) and (B) of its original motion for judgment as a matter of law, Dkt. 316. These sections do not discuss rescission. NJC expands on its arguments about rescission/a new trial in its reply, Dkt. 356, but this is too little, too late. See, e.g., Narducci v. Moore, 572 F.3d 313, 324 (7th Cir.2009) (arguments raised for the first time in a reply brief are *960 forfeited). The fact that NJC did not present its arguments in its opening motion explains why the Ganassi defendants did not respond to the request for a new trial. Thus, NJC's motion for a new trial on this basis is denied. In any event, the rescission issue does not appear to be a proper subject for a new trial, as this issue is equitable and thus was carved out by the court and not considered by the jury. In addition, as detailed in § V of this opinion, with respect to the bench trial portion of this case, the court finds that Mr. Ganassi is not entitled to rescission. Accordingly, the court need not further discuss NJC's arguments about rescission in the context of a motion for a new trial. III. Mr. Ganassi's Motion for Judgment as a Matter of Law At trial, NJC asserted a single claim— that Mr. Ganassi breached the guaranty. In his motion for judgment as a matter of law, Mr. Ganassi contends that NJC failed to prove this claim as a matter of law because: (1) NJC's termination of the Lease also terminated the guaranty and thereby relieved Mr. Ganassi of his obligations under the guaranty; (2) NJC wrongfully terminated the Lease, and is not entitled to benefit from a breach of contract it caused; (3) NJC failed to prove that CMS owed any rent under the Lease so CMS was not in default and, hence, no liability can be imposed on Mr. Ganassi; and (4) Mr. Ganassi satisfied his obligations under the guaranty by paying more than he was required to pay. A. Did NJC Wrongfully Terminate the Lease? Mr. Ganassi contends that NJC wrongfully terminated the Lease and that this action terminated the guaranty and relieved him of his obligations under the guaranty. Specifically, he asserts that: (1) the guaranty was part of the Lease and did not survive termination of the Lease; (2) § 14 of the Lease did not extend the guaranty beyond the date of the Lease's termination; and (3) Mr. Ganassi did not consent to extend his obligations under the guaranty beyond the date of the Lease's termination. Among other things, the guaranty required Mr. Ganassi to "personally guaranty repayment of fifty percent (50%) of funds borrowed to make Landlord Improvements. . . limited to a maximum personal guaranty of $22,500,000.00." NJC's Ex. 28. The parties disagree as to whether the guaranty survived the termination of the Lease. According to Mr. Ganassi, the guaranty was part of the Lease and hence could not survive termination. The parties each claim that the guaranty's plain language supports their position, and witnesses testified in support of each position. Section 14(a) of the Lease provides: "In the event of any material default of this Lease by Tenant [CMS], Landlord [NJC], at its option, may terminate this Lease upon and by giving written notice of termination to Tenant [CMS], which termination shall not affect Tenant's [CMS's] liability for all sums which are, or may be, due under this Lease." NJC's Ex. 28. Thus, the guaranty guaranteed repayment of up to $22,500,000.00 of the monies borrowed to make improvements, and the Eighth Amendment subsequently reduced the amount of the guaranty. Moreover, under § 14(a) of the Lease, CMS's obligation to pay for sums it owed survived the termination of the Lease. The guaranty did not contain any temporal restrictions, as it merely guaranteed repayment of monies loaned to CMS. A guaranty on a lease survives the lease's termination if the guarantor agrees to *961 guarantee payments that survive the termination. T.C.T. Bldg. Partnership v. Tandy Corp., 323 Ill.App.3d 114, 118-19, 256 Ill.Dec. 82, 751 N.E.2d 135 (1st Dist. 2001). This is precisely what happened here, as Mr. Ganassi agreed to guarantee repayment of money loaned to CMS, and the Lease provided that termination of the Lease would not affect CMS's liability for money owed under the Lease. U.S. Shoe Corp. v. Hackett, 793 F.2d 161, 165 (7th Cir.1986) ("[the plaintiff] was entitled to rely on the guaranty as written, not as limited by the [the defendants'] interpretation of its original purpose. Objective readings of financial instruments promote commercial transactions"). The fact that the guaranty states that it is part of the Lease is thus irrelevant. Mr. Ganassi's arguments that NJC wrongfully terminated the Lease and wrongfully diverted at least $4M of CMS's funds also have no bearing on whether the guaranty survived termination of the Lease, see Dkt. 343 at 5-11, since the Lease and guaranty's plain language, when read together, establish that the guaranty existed to induce the banks to provide the Construction Loan. See NJC Ex. 85 (Harris Bank "Summary of Terms and Conditions" sheet for the construction loan dated July 8, 1998). Finally, the notion that Mr. Ganassi was required to somehow separately consent to liability on the guaranty post-termination of the Lease is incorrect. His obligations under the guaranty became binding when he executed it, and he was not entitled to decide whether to reaffirm those obligations at a later date. In short, having considered all of the evidence, including the plain language of the documents at issue, the court simply does not accept that the banks would have extended the Construction Loan without a guaranty of repayment that would exist if the parties' deal fell apart. Mr. Ganassi's arguments about termination are thus unpersuasive. B. CMS's Rent Payments Under the Lease Mr. Ganassi next argues that he cannot be liable under the guaranty unless CMS first defaulted under the Lease. He acknowledges that CMS was obliged to pay "rent" but asserts that CMS was current with its rent at the time of termination, as "[a] search of the trial record discloses no evidence supporting claims that CMS owed $10,500,000 or $8,500,000, or any other amount of rent." Dkt. 264 at 9. He also contends that nothing is due under the note now owned by DII Northwest. Dkt. 343 at 13. Thus, he concludes that CMS was not in default so he should not be held liable under the guaranty. The parties do not appear to dispute that "rent" payments were payments of principal plus interest on the Construction Loan. Ample evidence indicated that CMS was not current with payments on the Construction Loan. For example, Ganassi Group's final payment towards CMS was for payroll in January of 2002 and Harris Bank sent a notice of default (Defendants' Ex. 106) in February of 2002. NJC terminated the Lease in October of 2002, after many months of nonpayment by CMS on the Construction Loan. To the extent that Ganassi Group contends that its obligations toward CMS were satisfied because it paid more towards the Construction Loan than NJC did at certain points, the court heard in exhaustive detail about NJC's payments towards CMS's operating expenses (not just the loan) and the parties' views about the propriety of NJC and CMS's accounting practices. In light of the evidence presented at trial, the jury could and did find that CMS was in default due to failure to remain current with payments on the *962 Construction Loan, so NJC was entitled to terminate the Lease. In addition, Mr. Ganassi's observations about the note are simply irrelevant. The Construction Loan indisputably was not current when NJC terminated the Lease, and this—not any obligation of any other entity or person under any other document to any other person or entity—entitled NJC to terminate the Lease. The defendants' attempts to obfuscate the issues by relying on the traditional definition of rent and quoting selectively from documents is thus unavailing. C. Did NJC Breach the Lease? Mr. Ganassi next asserts that NJC (not CMS or Mr. Ganassi) breached the Lease by wrongfully terminating the Lease even though CMS was not in default. In support, he argues that NJC diverted CMS funds for its own use and underfunded its portion of the CMS rent payments while simultaneously operating its own horseracing business. The court has already rejected Mr. Ganassi's argument that CMS was not in default because it was current with rent (i.e., Construction Loan) payments. It adds that its task at the posttrial stage is to determine if the record shows that Mr. Ganassi was entitled to judgment as a matter of law, not to reweigh all of the evidence. See Wallace v. McGlothan, 606 F.3d 410, 418 (7th Cir. 2010) (when considering a motion for judgment as a matter of law, the court must consider "whether the evidence presented, combined with all reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in the light most favorable to the party against whom the motion is directed"), quoting Tammi v. Porsche Cars N. Am., Inc., 536 F.3d 702, 707 (7th Cir.2008). D. Do Mr. Ganassi's Contributions to CMS Extinguish His Obligations Under the Guaranty? Finally, Mr. Ganassi argues that he is entitled to judgment as a matter of law because he contributed more money to CMS than the cap set by the guaranty. The court strongly disagrees. Mr. Ganassi's argument is based on his belief that the guaranty acted as a note, so any payments made to CMS by him or his organizations reduced the total amount of money he was personally required to pay towards the CMS project if things went south. A note and a guaranty are not interchangeable, as "[a] claim on a note depends on the borrower's promise to pay; a claim on a guaranty depends on the lender's inability to collect from the borrower." Freedom Mortg. Corp. v. Burnham Mortg., Inc., 569 F.3d 667, 672-73 (7th Cir.2009). Mr. Ganassi acknowledged at trial that the guaranty was just that: a guaranty that required him to pay up to the amount then in effect if the underlying note was not repaid. His argument during and after trial that the guaranty is in fact a note is inconsistent with the evidence presented at trial indicating that Mr. Ganassi signed the guaranty and Teams pledged the CART stock as security for the underlying loan. Moreover, the guaranty's express language required the Bank Group to consent to reduce the amount of the guaranty. They consented as part of the execution of the Eighth Amendment, and the amount of the guaranty was reduced. The Bank Group did not otherwise consent to reduce the amount of the guaranty. The idea that each penny contributed to CMS by Mr. Ganassi or an entity he controlled reduced the amount of Mr. Ganassi's personal guaranty is, therefore, incorrect as a matter of basic contract interpretation. *963 Moreover, Mr. Ganassi's argument ignores the fact that Ganassi Group is not interchangeable with Mr. Ganassi himself. Ganassi Group was part of CMS, along with NJC. Even if Mr. Ganassi was the source of part of Ganassi Group's payments to CMS, Ganassi Group was legally responsible for its own payments, and Mr. Ganassi's personal guaranty (up to the amount of the guaranty at the relevant time) guaranteed CMS's payments. The jury was entitled to, and did, make this distinction. Accordingly, for all of the above reasons, Mr. Ganassi's motion for judgment as a matter of law is denied. IV. Mr. Ganassi's Motion for a New Trial Mr. Ganassi asserts that the $8,500,000 jury verdict in favor of NJC on its breach of guaranty claim is against the manifest weight of the evidence. He also contends that the court erroneously admitted the expert testimony of Shepard Pryor IV regarding banking practices. Third, he argues that the jury's verdict in favor of NJC on the breach of guaranty claim is inconsistent with its verdict on Ganassi Group's breach of contract claim. Finally, he contends that the verdict is not supported by the evidence. A. Weight of the Evidence Mr. Ganassi asserts that the $8,500,000 jury verdict in favor of NJC on its breach of guaranty claim is against the manifest weight of the evidence. In support, he incorporates a prior motion raising this argument, and in response, NJC incorporates its prior response. A party who contends that a jury verdict was contrary to the manifest weight of the evidence can prevail "only if no rational jury could have rendered the verdict." Lewis v. City of Chicago Police Dept., 590 F.3d 427, 444-45 (7th Cir.2009) (internal quotations omitted). When considering a motion for a new trial, "[t]he reviewing court must view the evidence in the light most favorable to the prevailing party, leaving issues of credibility and weight of evidence to the jury." Id. The court declines to allow the parties to circumvent the page length limitations it set by incorporating prior filings. As demonstrated by the numerous pre- and posttrial oversized briefs authorized in this action, it would have considered a reasonable request for additional pages so the parties could submit briefs addressing all of their post-trial arguments. In any event, as discussed above, the jury's verdict on NJC's claim for breach of the guaranty was supported by evidence, especially given that for purposes of a motion for a new trial, the court must evaluate the evidence about the breach of the guaranty in the light most favorable to NJC. Mr. Ganassi's request for a new trial based on the sufficiency of the evidence is thus denied. B. Shepard Pryor IV Next, Mr. Ganassi contends that the court erroneously admitted the expert testimony of Shepard Pryor IV regarding banking practices. The court largely denied the defendants' motion in limine regarding Mr. Pryor prior to trial and denied the defendants' renewed request to bar Mr. Pryor's testimony at trial. See Dkt. 253 (opinion addressing the parties' motions in limine) & 311 (order addressing motion to reconsider). As the court previously noted, Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), govern the admissibility of expert testimony in federal court. See Naeem v. McKesson Drug Co., 444 F.3d *964 593, 607 (7th Cir.2006). Rule 702 provides that: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702. In turn, under Daubert, this court must function as a "gatekeeper" to "ensure the reliability and relevancy of expert testimony." Id. at 607, quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). To perform the gatekeeping function, the court must focus on the expert's methodology, Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.2000), and consider whether the expert's work is "reasoned, uses the methods of the discipline, and is founded on data," Naeem, 444 F.3d at 608, quoting Lang v. Kohl's Food Stores, Inc., 217 F.3d 919, 924 (7th Cir.2000). Mr. Ganassi is entitled to a new trial based on the admission of Mr. Pryor's testimony only if the court concludes that its prior decision was erroneous and that refusing to grant a new trial is "inconsistent with substantial justice." Liu v. Price Waterhouse LLP, 302 F.3d 749 (7th Cir. 2002) (the trial court's evidentiary rulings should be revisited only if they were erroneous and substantially influenced the jury"). In his motion for a new trial, Mr. Ganassi contends that he met this difficult standard because: (1) Mr. Pryor's testimony was not reliable because he was not qualified; (2) Mr. Pryor's opinions about the guaranty are irrelevant because Harris Bank is not a party to Mr. Ganassi's guaranty and did not participate in its negotiation; (3) Mr. Pryor did not discuss the guaranty with any of the parties involved; (4) the promissory note for the construction loan agreement is currently owned by DII Northwest; and (5) Harris did not sue Mr. Ganassi. The court has considered these arguments before, but begins with the threshold issue of whether Mr. Pryor was a proper expert. 1. Mr. Pryor's Qualifications Mr. Ganassi's position at trial was that payments made pursuant to the construction loan agreement extinguished any monies owed under the guaranty (i.e., that the guaranty essentially was a note that was reduced by cash contributions made by Mr. Ganassi to the CMS project). In response, NJC offered, among other things, expert testimony from Mr. Pryor based on his extensive experience in relevant aspects of the banking industry. The court declines to endorse a blanket rule holding that experts may not testify based on their professional experience. See, e.g., United States v. Conn, 297 F.3d 548, 556-57 (7th Cir.2002) (an ATF agent "employed a recognized and valid methodology when he characterized the nature of Mr. Conn's firearms on the basis of his earlier training and experience with both collectible firearms and those that were not"). With the benefit of the trial, the court is also convinced that Mr. Pryor's testimony was helpful to the jury, which was faced with the daunting prospect of a seemingly endless parade of accountants and a very complex, multi-layered transaction with many technical terms. The court thus rejects Mr. Ganassi's third attempt to attack Mr. Pryor, whose testimony was limited to his opinions about the banking industry and was subject to extensive cross-examination. See Dkt. 253 (opinion addressing *965 the parties' motions in limine) & 311 (order addressing motion to reconsider). 2. Is Mr. Pryor's Testimony Relevant Since Harris Bank Did Not Sign or Directly Negotiate the Guaranty? Mr. Ganassi contends that the Bank Group has no connection to the guaranty because Harris Bank neither signed nor negotiated it. The guaranty existed, however, only because the banks required it in order to loan a very substantial amount of money. See NJC Ex. 85 (Harris Bank "Summary of Terms and Conditions" sheet for the construction loan dated July 8, 1998) (requiring an "executed Lease for motor speedway with personal guaranty of Mr. Ganassi up to $22,500,000.00" as a condition precedent for over $60 million in loans). Moreover, as Mr. Ganassi acknowledges, the guaranty was part of the Lease, and thus was assigned to the Bank Group. See Dkt. 340 at 10. The Bank Group's perspective on the guaranty is also germane because the guaranty required the Bank Group to consent to reduce the amount of the guaranty. This is consistent with the fact that the Eighth Amendment (to which the banks comprising the Bank Group were parties and signatories along with Mr. Ganassi and NJC) reduced the amount of the guaranty to $10,500,000. See NJC Ex. 102 (Eighth Amendment). The Bank Group thus cannot be distanced from the guaranty. Finally, Lana Powers, a Harris Bank workout loan officer who deals with distressed loans, testified that the guaranty was part of the collateral for the construction loan and testified about the banks' insistence on the guaranty as part of the loan process as well as their involvement in the negotiation and execution of the Eighth Amendment. The court thus concludes that the guaranty did not exist in a vacuum and rejects the notion that testimony about how banking industry professionals would view the guaranty was irrelevant. Mr. Ganassi's position that the guaranty essentially acted as a note because all of his cash contributions to the CMS project offset any monies owed under the guaranty made Mr. Pryor's testimony relevant and helpful to the jury as it considered whether to accept that position. Mr. Ganassi's relevancy argument thus does not justify a new trial. 3. Mr. Pryor's Lack of Personal Involvement With the Guaranty Mr. Ganassi also asserts that Mr. Pryor's testimony was improper because while he reviewed documents, he never discussed the guaranty with NJC, Mr. Ganassi, or the banks. Mr. Ganassi thus concludes that Mr. Pryor could not opine about the intentions of the parties or banks. The court, however, barred Mr. Pryor from offering any such testimony. See Dkt. 311. Accordingly, this argument is a non-starter. 4. Current Owner of the Promissory Note for the Construction Loan Mr. Ganassi also refers to the fact that the promissory note for the construction loan agreement is currently owned by DII Northwest, who purchased the note from the bank group and called it, causing NJC's bankruptcy. Dkt. 340 at 12. He then asserts that DII Northwest "did not agree to any of [the] conditions that Mr. Pryor now imposes on him by virtue of the alleged customs and practices of the banking industry." Id. The fact that DII Northwest was not involved with the guaranty while the CMS project was still alive is irrelevant. Mr. Pryor did not impose any conditions on any of the parties. He merely opined about how banks would generally view guaranties like the one at issue *966 in this case, and was cross-examined at length about those opinions. The court also notes that none of the individuals who were involved in the transaction "imposed conditions" on the guaranty. For example, Lana Powers testified that a reduction in the guaranty required written approval by Harris Bank and the consent of the other participating banks. Moreover, Mr. Ganassi has not pointed to any evidence showing that DII Northwest's purchase of the promissory note "imposed conditions" on the guaranty, which was executed long before the promissory note changed hands. Mr. Ganassi's arguments about DII Northwest are thus unpersuasive. 5. Is the Bank Group's Perspective Relevant Only if the Banks Are Parties? None of the banks sued Mr. Ganassi. Mr. Ganassi states that "this is not surprising, given that the Guaranty contains no provision requiring consent or acknowledgment by NJC or Harris Bank for the Guaranty to be reduced." Dkt. at 12. This is besides the point. As noted above, the guaranty existed because the banks required it to loan money. Mr. Ganassi points to no authority indicating that they were required to sue him directly based on an alleged failure to satisfy his obligations under the guaranty. In sum, at the post-trial stage, the parties may not relitigate evidentiary issues afresh. Mr. Ganassi is entitled to a new trial based on the admission of Mr. Pryor's testimony only if the court finds that its prior rulings were erroneous and a new trial is necessary to effect substantial justice. Mr. Ganassi has not satisfied either of these prongs, so his request for a new trial based on the narrow testimony from Mr. Pryor about banking practices is denied. C. Allegedly Inconsistent Jury Verdict Mr. Ganassi's final argument in support of his motion for a new trial is a convoluted claim that the jury's verdict in favor of NJC on the breach of guaranty claim is inconsistent with its verdict on the Ganassi Group's breach of contract claim. NJC characterizes Mr. Ganassi as arguing "that it is inconsistent for the jury to have found that NJC performed its obligations under the Lease in awarding it a recovery against Mr. Ganassi on his guaranty and at the same time have found that NJC, as tenant, caused or contributed to CMS's default under the Lease." Dkt. 354 at 17 (internal citations omitted). The court agrees with NJC that this is not a fair characterization of the jury verdict. The jury found in favor of Ganassi Group on its counterclaim based on NJC's breach of § 6.1 of the Operating Agreement. See Dkt. 322 (jury verdict). Moreover, CMS was the tenant. It is true that NJC and Ganassi Group together comprised CMS, but NJC by itself was the landlord. The jury verdict simply does not support the notion that the jury found that NJC by itself was the tenant and as such, caused or contributed to CMS's default under the Lease. In addition, the claims are based on two different underlying documents. When the jury awarded NJC damages based on Mr. Ganassi's breach of the guaranty, it necessarily found in favor of NJC on its breach of contract claim based on the guaranty, which was attached to the Lease. Ganassi Group was neither a party to the Lease nor the guaranty. The jury also found in favor of Ganassi Group on its counterclaim against NJC based on the Operating Agreement. When viewed from this perspective, the verdict is entirely consistent. Because the *967 court must review jury's "findings in the light most favorable to the verdicts," Fox v. Hayes, 600 F.3d 819, 844 (7th Cir.2010), and a "plausible explanation for the verdict" exists, Carter v. Chicago Police Officers, 165 F.3d 1071, 1081 (7th Cir.1998), Mr. Ganassi is not entitled to a new trial based on the jury's verdict. D. Sufficiency of the Evidence Mr. Ganassi contends the evidence is insufficient to support the jury's verdict on NJC's breach of contract claim based on the guaranty. In support, he incorporates a prior motion that the court has already rejected that contains this argument. Incorporation of prior motions violates the court's order setting a page limit for the motion presently before the court. In any event, the court declines to revisit its prior ruling about the sufficiency of the evidence as Mr. Ganassi's view of the evidence is one-sided and highly colored. For example, the court found that much of his testimony about the guaranty was evasive and not credible. His insistence that a "cc" next to his name on a letter relating to the CMS transaction could not mean that he received a copy because the writer did not place a checkmark next to his name is illustrative: given his background, business dealings, and involvement in Ganassi Group, CMS, and other ventures, his professed lack of knowledge about evidence that did not support his cause and keen grasp of evidence favoring his position meant that he was not a compelling witness. See Transcript at 1224-26. Moreover, ample evidence—including the Eighth Amendment, which formally decreased the amount Mr. Ganassi owed under the guaranty, and Lana Powers' testimony that a reduction in the amount of the guaranty required approval by Harris Bank and the consent of the other banks— supported NJC's theory that payments to CMS did not automatically decrease Mr. Ganassi's liability on the guaranty. Accordingly, this basis for a new trial is unavailing. V. Mr. Ganassi's Request for Rescission of the Guaranty or, Alternatively, a Finding That Set-off Is Proper Mr. Ganassi seeks to rescind the Lease and guaranty. Alternatively, he asks the court to set-off the jury's award of damages in favor of NJC on its claim for breach of the guaranty against the jury's award of damages in favor of Ganassi Group on its counterclaim for breach of the Operating Agreement. For the following reasons, he is not entitled to this relief. A. Rescission Mr. Ganassi contends that he is entitled to rescission because: (1) NJC breached the Lease by failing to use its best efforts to remove the necessity for the guaranty; and (2) NJC wrongfully terminated the CMS Lease. It is only necessary to address two of NJC's many arguments about rescission: that Mr. Ganassi failed to plead a claim for rescission of the guaranty and the remedy of rescission is unavailable because the parties cannot be restored to the status quo ante. NJC asserts that Mr. Ganassi forfeited his current argument that the Lease and guaranty should be rescinded because his rescission counterclaim is directed at the Lease and Operating Agreement, not the guaranty. See Dkt. 85 at 23. NJC also stresses that Mr. Ganassi referred to the guaranty separately elsewhere in the counterclaims, but did not do so in his rescission counterclaim. It thus concludes that Mr. Ganassi failed to plead a claim for rescission of the guaranty and sandbagged it by changing theories after trial. *968 The court disagrees. While the guaranty and Lease were separate documents, the guaranty was executed in connection with the Lease, and if the Lease is rescinded, the guaranty would not be necessary as there would be no underlying obligation to guarantee. Moreover, before and during trial Mr. Ganassi made it clear that he was attempting to walk away from the guaranty based on a host of theories. Accordingly, Mr. Ganassi's equitable claim for rescission is properly before the court. The request for rescission nevertheless is unavailing as a matter of law as an "element necessary for a rescission cause of action is a showing that the parties can be restored to the status quo ante." Horwitz v. Sonnenschein Nath and Rosenthal LLP, 399 Ill.App.3d 965, 975, 339 Ill.Dec. 459, 926 N.E.2d 934 (1st Dist.2010) (collecting cases). This requires the party seeking rescission to "return of any property or other consideration that has passed to the rescinding party under the contract" and "also generally requires the rescinding party to account for any benefits received from the other party under the contract." Id. (internal citations and quotations omitted). In his opening memorandum, Mr. Ganassi contends that the parties can be restored to the status quo ante as of the time that NJC terminated the Lease because the court can cancel his guaranty, and that the court is not required to restore NJC to its pre-guaranty condition because NJC has filed for bankruptcy and thus cannot refund any rent payments back to CMS.[3] This argument is a non-starter because the status quo ante refers to the time that the contract was formed. International Ins. Co. v. Sargent & Lundy, 242 Ill.App.3d 614, 629, 182 Ill.Dec. 308, 609 N.E.2d 842 (1st Dist.1993) (collecting cases). Mr. Ganassi's proposed time machine is thus set to the wrong date, as the relevant moment is when the parties executed the Lease. In any event, Mr. Ganassi's attempt to absolve himself of any effort to restore NJC to the position it was in prior to the termination of the Lease would have been unavailing even if the date of the Lease's termination was relevant for purposes of rescission. The fact that NJC has filed for bankruptcy and lost Sportsman's Park shows that it is impossible to restore the status quo ante. The contention that the status quo ante cannot be restored so Mr. Ganassi should be excused from demonstrating that it can be restored shows Mr. Ganassi cannot prevail, not that he should be excused from proving a necessary element of a rescission claim. Perhaps recognizing the flaws in this argument, Mr. Ganassi provides a fallback position: that he need not prove this element because NJC has unclean hands as NJC's conduct prevented Mr. Ganassi from being able to restore the status quo ante. See, e.g., International Ins. Co. v. Sargent & Lundy, 242 Ill.App.3d 614, 629, 182 Ill.Dec. 308, 609 N.E.2d 842 (1st Dist. 1993) ("Restoration of the status quo ante will not be required when restoration has been rendered impossible by circumstances not the fault of the party seeking rescission, and the party opposing the rescission has obtained a benefit from the contract"). This exception to the normal status quo ante requirement does not help Mr. Ganassi because it requires the court to accept that NJC was unilaterally responsible for the circumstances leading up to the termination *969 of the Lease (i.e., the failure of the CMS project and the inability of CMS to generate enough revenue to service CMS's debt). The jury did not make any such finding, as its verdict in favor of the Ganassi Group was based on its finding that NJC breached § 6.1 of the Operating Agreement, which as noted above provided that: 6.1 Authority: Liability to Third Parties; Member Independence. No Member has the authority or power to act for or on behalf of the Company to do any act that would be binding on the Company, or to incur any expenditures on behalf of the Company. No Member shall be liable for the debts, obligations or liabilities of the Company, including under a judgment decree or order of a court. Except as otherwise specifically provided herein, neither the Company nor any Member shall have any rights in or to any ventures pursued by any other member or the income or profits therefrom, whether taking place at Sportman's Park, Cicero, Illinois[,] or elsewhere. NJC Ex. 29, § 6.1. While the parties and their army of accountants presented differing views of CMS's financial management, a finding that NJC breached § 6.1 of the Operating Agreement is not synonymous with a finding that NJC mismanaged CMS's books and records, wrongfully diverted funds, or materially breached the Lease. Moreover, in reaching a verdict in favor of NJC on the breach of guaranty claim against Mr. Ganassi, the jury rejected Mr. Ganassi's claim that NJC wrongfully terminated the Lease and failed to use its best efforts to remove or vacate Mr. Ganassi's obligation to maintain the guaranty. Mr. Ganassi, therefore, has failed to point to evidence demonstrating that NJC's conduct prevented him from being able to restore the status quo ante requirement. This means that he must establish that the parties can be restored to their pre-contract positions. Because he cannot do so, his request for rescission of the Lease and guaranty is unavailing. B. Set-Off "The right of setoff (also called `offset') allows entities that owe each other money to apply their mutual debts against each other, thereby avoiding `the absurdity of making A pay B when B owes A.'" Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 18, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995), quoting Studley v. Boylston Nat. Bank, 229 U.S. 523, 528, 33 S.Ct. 806, 57 L.Ed. 1313 (1913). Mr. Ganassi asks the court to set-off the jury's award of damages in favor of NJC on its claim for breach of the guaranty against the jury's award of damages in favor of Ganassi Group on its counterclaim for breach of the Operating Agreement. In response, NJC contends that Mr. Ganassi's requested set-off is an affirmative defense, as opposed to a counterclaim, and thus is procedurally barred from receiving a setoff. Alternatively, NJC contends that the request for set-off fails on the merits. The court need not reach NJC's procedural argument as even assuming that Mr. Ganassi properly preserved his claim for set-off, he is not entitled to the requested relief. To be entitled to set-off under Illinois law, Mr. Ganassi must establish that the two jury awards are: (1) mature; (2) liquidated; and (3) mutual. In re Clark Retail Enterprises, Inc., 308 B.R. 869, 896 (Bkrtcy.N.D.Ill.2004). The court's consideration begins and ends with the mutuality requirement. "Courts have uniformly construed `mutuality' to mean that the debts must be in the same right and between the same parties, standing in the same capacity and *970 same kind or quality." Id. at 896-97 (internal quotations omitted); see also In re Doctors Hosp. of Hyde Park, Inc., 337 F.3d 951, 955 (7th Cir.2003) ("the general rule is that mutuality is satisfied when the offsetting obligations are held by the same parties in the same capacity (that is, as obligor and obligee) and are valid and enforceable"). Mr. Ganassi argues that setoff of his liability to NJC against NJC's liability to Ganassi Group's liability is appropriate because "the evidence established that Ganassi Group and Mr. Ganassi[] were one and the same, and that Mr. Ganassi was the real party in interest" for the contracts executed by Ganassi Group. Dkt. 337 at 17. The court strongly disagrees with this characterization of the evidence. It is true that at trial, Mr. Ganassi argued that he was one and the same as Ganassi Group. However, the evidence was to the contrary. The fact that Mr. Ganassi—a member of Ganassi Group LLC-testified that he paid Ganassi Group's debts to CMS does not wipe away Ganassi Group's separate legal existence. Mr. Ganassi cannot have it both ways. He formed Ganassi Group on the advice of counsel to insulate himself from personal liability. See Tr. 1159: 12-24 (Mr. Ganassi formed Ganassi Group upon advice of counsel); Tr. 1885:4-13 (Mr. Pietragallo, Mr. Ganassi's lawyer, testified that Ganassi Group was formed to insulate Mr. Ganassi from personal liability). LLC members are not liable for the LLC's debts. Valinote v. Ballis, 295 F.3d 666, 668 (7th Cir.2002). However, the mere fact that a member paid LLC debts does not mean that the existence of the LLC has no legal significance. This is especially true given that Mr. Ganassi was not the only member of Ganassi Group and Mr. Ganassi and Ganassi Group were parties to different contracts relating to CMS. In sum, Mr. Ganassi's argument that he is one and the same as Ganassi Group LLC is simply wrong. His remaining arguments about set-off do not merit discussion. VI. Conclusion For the above reasons, NJC's renewed motion for judgment as a matter of law as to defendants' counterclaims or, in the alternative, for a new trial [#335] and Mr. Ganassi's renewed motion for a new trial [#339] and motion for judgment as a matter of law [#342] are denied. In addition, the court finds that Mr. Ganassi is not entitled to rescission or a set-off and thus denies the relief sought in Mr. Ganassi's memorandum addressing these issues [#337]. The clerk is directed to enter a Rule 58 judgment and terminate this case from the court's docket. NOTES [1] Pari-mutuel betting is a system of cooperative wagering that originated in France in the 1870s. Translated from French, it means betting among ourselves (pari = "bet" and mutuel="mutual"). It is generally credited to Pierre Oller, a Parisian perfume shop owner. Bettors divide the total amount of money bet on a race (the pool) after deductions for tax and racetrack expenses based on the type of bets made, each bettor's success, and the results of the race. [2] At the time that trial commenced, Mr. Ganassi's pending affirmative defenses were: lack of privity, satisfaction and discharge, failure of consideration, material breach by NJC, increased risk, wrongful termination of the Lease, breach of the duty of good faith and fair dealing, and lack of default by the obligor. [3] The Bank Group loaned money based on the existence of the guaranty. The parties do not address whether the banks would need to be restored to the status quo ante. The court will not do so either, as for the reasons discussed below, Mr. Ganassi's rescission claim fails.

Filed 1/10/17 Unmodified opinion attached CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT GENOVEVO GONZALES, et al., Plaintiffs and Respondents, F070832 v. CITY OF ATWATER, (Super. Ct. No. CV002234) Defendant and Appellant, MICHELLE CARRIZALES, Defendant and Respondent. MODIFICATION OF OPINION (NO CHANGE IN JUDGMENT) THE COURT: It is hereby ordered that the opinion filed herein on December 15, 2016, be modified as follows: On page 31, at the end of the sentence just before the Disposition, delete footnote 19. Except for the modification set forth, the opinion previously filed remains unchanged.  This modification does not effect a change in the judgment. _____________________ GOMES, J. WE CONCUR: _____________________ LEVY, Acting P.J. _____________________ KANE, J. 2. Filed 12/15/16 Unmodified opinion CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT GENOVEVO GONZALES, et al., F070832 Plaintiffs and Respondents, (Super. Ct. No. CV002234) v. CITY OF ATWATER, OPINION Defendant and Appellant, MICHELLE CARRIZALES, Defendant and Respondent. APPEAL from a judgment and order of the Superior Court of Merced County. Donald J. Proietti, Judge. Murphy, Campbell, Alliston & Quinn, George E. Murphy and Suzanne M. Nicholson, for Defendant and Appellant City of Atwater. Powers Miller, R. James Miller and Robert F. Bennett, Jr. for Defendant and Respondent Michelle Carrizales. Dreyer Babich Buccola Wood Campora, Roger A. Dreyer and Stephen F. Davids, for Plaintiffs and Respondents. -ooOoo-  In December 2010, Michelle Carrizales was making a left turn at an intersection in the City of Atwater (City) when she struck and killed Delia Gonzales, a pedestrian in a crosswalk. Gonzales’s husband and five adult children (collectively plaintiffs) sued Carrizales and the City for wrongful death, alleging Carrizales was negligent and the City was liable under Government Code section 8351 for the dangerous condition of the intersection. A jury trial was held, at which the jury found Carrizales not negligent and the City solely liable based on the dangerous condition of the intersection; the jury awarded plaintiffs approximately $3.2 million in economic and non-economic damages. In its motion for judgment notwithstanding the verdict (JNOV), the City renewed an argument it made on its unsuccessful motion for directed verdict that the design immunity defense of section 830.6 shielded it from liability. The trial court denied the JNOV. On appeal from the judgment and order denying its JNOV motion, the City challenges the jury’s finding that the intersection was in a dangerous condition and asserts it established the design immunity defense as a matter of law. The City also attempts to challenge the jury’s finding that Carrizales was not negligent and contends the non-economic damages awarded plaintiffs were excessive. Since we agree with the City that the design immunity defense insulates it from liability for any dangerous condition of the intersection, we do not reach the other issues the City raised and reverse the judgment against the City. 1 All further statutory references are to the Government Code unless otherwise specified. 2.  FACTUAL AND PROCEDURAL BACKGROUND I. The Factual Background A. The Intersection Bellevue Road, an east-west thoroughfare through the City, has two lanes in each direction. Linden Street, which intersects Bellevue, is a north-south collector road with one lane in each direction that provides access to the residential area south of Bellevue. Directly north of the intersection is the main driveway serving a Kmart shopping center. Because an elementary school is less than two blocks away, the intersection has three yellow crosswalks – two that run east and west across the Kmart driveway and Linden, and one that runs north and south across the west side of Bellevue. B. The 2001 Plans Before 2001, the intersection did not have signals; the side streets – Linden and the Kmart driveway – were controlled by stop signs, while Bellevue was not. In February 2001, the transportation consulting firm Fehr & Peers (F&P) completed a warrants study2 for the City of four intersections along Bellevue, including where Bellevue intersects Linden, to evaluate the need for traffic signals. Based on the study, F&P concluded that a signalized intersection was warranted at Bellevue and Linden, as two warrants for signalization were met: (1) interruption of continuous flow; and (2) “four-hour volume.” Warrants for minimum vehicular volume (which tested for the amount of traffic on Bellevue and Linden), minimum pedestrian volume (which looked at the relationship between vehicular traffic volumes and the number of pedestrians crossing the intersection), and 12-month accident history were not met at that time. Frank Lozano, a civil engineer licensed by the State of California who was employed by the City as its civil engineer from 1999 to 2002, reviewed the warrants 2A warrants study is an analysis of state guidelines, called warrants, that cover things such as traffic volume, collisions, and school-related issues, to determine whether signalization is appropriate. 3. study. Based on the study, the City council approved the installation of signals at the subject intersection and retained F&P to design the plans. Robert Rees, a registered civil and traffic engineer who had worked at F&P since 1995, was in charge of the project – he oversaw his staff in the design of the signals, and preparation of the plans, specifications and estimate. According to Rees, F&P’s practice was to meet with the City to obtain information, such as the traffic signal’s purpose and role, as well as the City’s local preferences, including the signal phasing typically used in the community. Based on that information, as well as a field survey, F&P would develop a preliminary set of plans that included the basic equipment and layout of the phasing, including the location, poles and signals. The City would then review the plan and make technical comments, with the review process being repeated until the City and F&P concurred the plans were complete. The plans F&P developed called for permissive phasing for north and southbound traffic, which meant that vehicles traveling north on Linden and south from the Kmart driveway had a green ball signal at the same time. There were no left-turn signals for that traffic; instead, vehicles turning left were required to yield on green and turn when safe to do so. This required northbound drivers to proceed into the intersection, watch for oncoming traffic and check for pedestrians before executing their turns. In contrast, left- turning traffic on Bellevue had a protected left turn signal, meaning that such traffic would move only on a left green arrow. Rees stamped the plans in March 2001, which meant that he generally reviewed, approved of them, and agreed with all aspects of their engineering design as of that date. Rees did not have an independent recollection of the project or conversations he had at the time concerning the plans or whether permissive phasing was discussed. Rees did not personally prepare the light phasing; that was the responsibility of a former F&P employee, Lisa Phillips, who worked under Rees and left the firm in 2003 or 2004. Phillips, however, would not have been responsible for selecting the phasing, as phasing 4. was typically a city recommendation or direction. Based on his practice, Rees believed the City would have selected the permissive phasing for this project.3 At trial, Rees testified he stood by the use of permissive phasing in the plans; he would not have signed the plans had he thought permissive phasing was inappropriate or unreasonable. F&P regularly used permissive phasing on the projects Rees worked on that involved major thoroughfares with minor streets intersecting them. Lozano, along with his technical staff, reviewed the plans for the City and engaged in the interactive process with F&P that led to the finalization of the plans. Based on his custom and practice, Lozano would have reviewed the plans in their entirety, including the light phasing, and discussed the use of permissive signals with F&P before approving the plans.4 When Lozano reviewed the final plans, he determined they were reasonable from an engineering standpoint; the plans met or exceeded all engineering standards. As the City’s engineer, Lozano would have been the one to decide on the type of phasing to use; he would have to look at the plans and what was being called for in order to exercise his judgment in confirming the phasing was what he wanted.5 Lozano approved the plans on May 4, 2001. 3 Rees testified that any F&P documents that would have memorialized conversations concerning the project would have been destroyed in the ordinary course of business after seven or 10 years, with F&P retaining only final copies. On this project, the existing documents consisted of invoices and the design plans. 4 Lozano did not have an independent recollection of this project or his interactions with F&P regarding it. He also did not recall any conversation he had with anyone about the project, as it had been too long. He testified as to what he knew he would have done according to his custom and practice as the City engineer. 5 Lozano did not know the name of the F&P engineer who did the traffic phasing portion of the plans and could not say that he ever spoke with that person. Lozano confirmed there was nothing in the project file the City gave to him that documented he ever had a conversation with an F&P engineer where he “actually looked at it and made an engineering judgment call for permissive phasing.” Lozano also confirmed there was no document that showed he and David Taylor, a civil engineering technician for the City 5.  On Lozano’s recommendation, the City council approved the plans and authorized the call for bids to build the traffic signal at a January 22, 2001 meeting.6 Sometime thereafter, the traffic signals were installed according to the plans. C. The History of the Intersection after 2001 1. Prior Fatalities After the signals were installed, vehicles making left-hand turns from Linden onto Bellevue hit and killed two people traveling northbound in the crosswalk that crossed Bellevue in two separate accidents. The first fatality, in December 2002, 77-year-old John Toews, was riding his bicycle in the crosswalk, while the second, in August 2008, was a pedestrian, 90-year-old Winifred Dutton. Neither driver saw the victim before hitting him or her. This was the only intersection with traffic signals in the City in which pedestrian or bicyclist fatalities occurred in a crosswalk. 2. The 2004 Plans In February 2004, in response to complaints about congestion in the intersection, the City retained Wilbur Elias, a licensed civil and traffic engineer with his own practice, to prepare engineering plans to change the signals on Linden and the Kmart driveway from permissive to split phasing.7 With split phasing, the north and southbound traffic would be split, with the Linden and Kmart driveway signals operating alternately. This who worked under Lozano, ever addressed the issue of phasing of the lights for north and southbound Linden. 6 City clerk Jeanna Del Real did not know how the council approved the plans in January 2001 when Lozano signed the plans in May 2001, and did not know if it was true that the City council was approving the plans before they were final. 7Lozano left City employment in October 2002; the City did not employ another engineer until 2008, when it hired Joe Hollstein. During the time the City was without its own engineer, it could contract with an outside engineer if an engineer’s advice was needed. The City always had an engineering technician on staff between 2005 and 2010, who would let the City know if there was an engineering issue that needed to be addressed. 6. meant that the Linden left-turn and through traffic would get a green light together, while the Kmart traffic light was red, and then Kmart left-turn and through traffic would get a green light together, while the Linden traffic light was red. Pedestrian traffic across Bellevue would have a walk signal when the Kmart traffic light was green, not when the Linden traffic light was green. According to Elias, although the primary use of split phasing is to reduce traffic congestion in an intersection and it is not intended to address pedestrian-related issues, pedestrian safety is a by-product of split phasing because it eliminates conflict between northbound left-turning vehicles and pedestrians. Elias submitted a proposal to provide traffic engineering plans for the split phasing to the City in February 2004, at a total cost of $3,500. Elias told the City the plans could be completed within two weeks of receiving a notice to proceed, and explained that the contract work would involve some minor wiring changes and changing some of the signal faces from full-circle to arrows, to tell drivers it is safe to make a left turn without having to wait for oncoming traffic. Two days later, the City issued a purchase order to prepare the plans that listed a project number of “04-6.” Elias forwarded the first draft of the traffic signal modification plans to the City in May 2004; in return, he requested a progress payment of $2,625, which the City issued in June 2004. The completed plans were delivered to the City by August 2004, when Elias demanded the final payment of $875, which the City remitted to Elias the following month. The City never implemented Elias’s plan or installed the split phase design. No one at the City knew why the plan was never implemented: the person who would have had that knowledge, Mo Khatami, died before trial.8 With the engineering done and 8 Khatami was the City’s community development director and, for a time, the assistant city manager. While Khatami was not a traffic engineer, he supervised the engineering department until 2006 or 2007. He passed away shortly thereafter. 7. funding admittedly not an issue,9 it is possible the plan was not submitted to the City council for construction approval, although if the project was under a certain amount, the community development director or city manager could approve it without council resolution.10 3. The 2010 Accident On December 16, 2010, 73-year-old Gonzales was fatally injured when she was hit by a truck driven by Carrizales. Gonzales was crossing Bellevue from south to north in the marked crosswalk when Carrizales made a left-hand turn from northbound Linden onto Bellevue, running right into Gonzales. Carrizales told the officer on the scene that she never saw Gonzales. II. The Procedural Background Plaintiffs filed a complaint for wrongful death against the City and Carrizales in October 2011. Plaintiffs alleged the City was liable for a dangerous condition of public property, including improper timing or phasing of the signals and failure to provide appropriate signage to alert vehicles to the presence of pedestrians in the crosswalk, and Carrizales was negligent in the operation of her vehicle. A. The Summary Judgment Motion The City moved for summary judgment, arguing, among other things, that it was entitled to design immunity pursuant to section 830.6. The trial court denied the motion. 9 The City admitted that it had sufficient funds to split the signal phase in the fiscal years from 2001/2002 through 2010/2011. 10 Stanley Feathers, who worked for the City from 2005 to 2011 as its finance director, assistant city manager, and interim city manager, testified that City council approval was not required if a project cost fell below a certain amount, but he could not recall what that amount was. Ryan, the plaintiffs’ expert, estimated the cost to install split-phasing ranged from $15,000 to $20,000. Feathers could not recall if that price range required council approval, but thought it was “probably pretty close.” 8. It determined it could not grant summary adjudication on the design immunity defense because there was a triable issue of fact as to the reasonableness of the plan or design. B. The Jury Trial A 15-day jury trial was held at which 20 witnesses testified, including expert witnesses Richard Ryan and James Jeffery, who were retained by plaintiffs and the City, respectively. 1. Plaintiffs’ Engineering Expert, Richard Ryan Plaintiffs’ engineering expert, Richard Ryan, reviewed the F&P warrants study and plans, and did not see any analysis, conclusion or rationale that showed an engineer made a decision or talked about why permissive phasing was selected for north and southbound Linden. In Ryan’s opinion, there should have been an analysis and the decision should not have been automatic. Had Ryan designed the signals, he would have separated the left-turn phase and pedestrian movement through the crosswalk because a left-turn driver tends to focus on oncoming traffic, not pedestrians. When assessing the type of phasing to use at this intersection, the engineer should have looked at its “unique factors,” which included: (1) the Kmart shopping center to the north; (2) the T- intersection; (3) the suburban area to the south; (4) the nearby school; and (5) a major thoroughfare through the City. Ryan also would have documented the reasons for his decision, which the standard of care requires. While Ryan would not have designed the signals the same way, he agreed that the 2001 plans were well-designed, the signals were built the way they were designed, and the permissive signal clearly was an option to be considered. He could not say whether the 2001 plans were reasonable or unreasonable, as he did not have any information regarding how the decision to use a permissive signal on Linden and a protected signal on Bellevue was made. Ryan opined that the signals should have been either all protected or split phase, not protected in one direction and permissive in the other. This was his personal decision based on what he knew from 2001; he could not judge the 2001 plans 9. because maybe the designer knew something he did not know. If an engineer had written down his or her thought process, Ryan could have rendered an opinion regarding the reasonableness of the 2001 plans; the City, however, had not provided any document that reflected any kind of engineering judgment. Ryan was unaware of any “cookbook” an engineer could consult which states special consideration need be given to the factors he cited; instead, signal design is part of “engineering judgment” derived from being knowledgeable about the issues around signal phasing, design and operation. In this case, the presence of generators for pedestrians, such as Kmart, the school and the residential area, should have been considered, as well as the aging United States population and that there are more pedestrians today than ever before as people are more health conscious. Ryan agreed there is no warrants analysis for split phasing, although there are some guidelines, and no standard or specifications that require the use of split phasing. Instead, it is a judgment call based on what the engineer sees.11 2. Elias’s Testimony on Reasonableness As pertinent here, Elias, who plaintiffs called as a witness in their case-in-chief, testified that the 2001 plans were reasonable engineering plans when they were made. The presence of yellow crosswalks, a shopping center to the north, or the residential area to the south, did not change his opinion that the plans were reasonable, as those were not unusual features. The aging population also would not change his opinion as to reasonableness. The plan was not rendered unreasonable merely because a driver turning left through the crosswalk may approach from behind a pedestrian crossing northbound in the crosswalk, as that happens all the time, and that was pretty typical or commonplace in terms of these kind of designs. 11 During Elias’s testimony, plaintiffs’ counsel stated that plaintiffs’ position was that the use of split-phasing was an “engineering judgment issue” and not something that was required. 10.  According to Elias, split phasing is an exception when it comes to traffic signal design. Ninety percent of the State’s lighted intersections use permissive phase signals; the split phase design is generally reserved for intersections with unique physical characteristics not present here. 3. Plaintiffs’ Concession on Reasonableness F&P engineer Rees testified as part of the City’s case. During a break in Rees’s testimony on direct examination, the parties and trial court discussed the subject matter of his testimony outside the jury’s presence. During an in-chambers conference, plaintiffs’ attorney objected to Rees rendering opinions, which the City asserted he could do because it had designated him as a non-retained expert. Plaintiffs’ attorney, Roger Dreyer, explained that during Rees’s deposition as F&P’s person most knowledgeable, Rees’s attorneys instructed him not to answer questions that asked for opinions and took the position that he would not render any. Thereafter, the City disclosed Rees as a non- retained expert, but plaintiffs did not re-take his deposition. Dreyer argued that because the City did not disclose Rees as a retained expert, it was stuck with his position that he was not going to render any opinions. The court asked the City’s attorneys, Bradley Post and Stephanie Wu, whether they were going to ask Rees to render opinions on subject matters he refused to respond to during his deposition. Post responded they were, and explained that Rees did not render opinions because his deposition had been noticed as the “person most knowledgeable.” Post added that after Rees was designated as a non-retained expert, plaintiffs had every opportunity to re-take his deposition, but chose not to. The trial court disagreed with the City’s position, but thought the issue was premature since it did not know what Rees would be asked. The court gave Post the option of making an offer of proof. Post stated he intended to ask Rees about the following areas: (1) whether the 2001 plans were reasonable in Rees’s mind, because he was the one who drew them up and approved them; (2) Rees’s custom and practice 11. regarding discussing issues with a city engineer; (3) whether permissive light phasing is common; and (4) whether the plans met or exceeded all standard specifications when Rees stamped, signed, initialed and approved them. Dreyer responded that plaintiffs were precluded from asking those questions at Rees’s deposition. The trial court asked whether the ultimate issue of whether the plans were reasonable was a question of fact for the jury. When Post and Wu responded it was not, the trial court asked if it was a question of law for the court. Post stated that it “all comes down to the design immunity. That’s really the purpose of – [.]” The trial court interrupted, stating that was a “good comment to break off on[,]” and asked if there was “a contention by the plaintiff in this case that the 2001 design, when it was adopted and approved, is unreasonable?” Dreyer responded: “No, Your Honor.” The trial court added: “So we don’t have a material issue there.” The trial court discussed the remaining areas of inquiry and allowed Dreyer to explain his objections further. The trial court then ruled: “I understand. All right. So the – whether the plans were reasonable, that’s not an issue. Whether it was stamped and sealed and what that means, that’s already been testified to by Mr. Lozano. It doesn’t seem to be a relevant issue either. It doesn’t seem material since there’s no dispute the plans are reasonable at the time they were approved. So the only question is whether or not he can testify as to the light phasing being a common practice back in 2001. I’m going to permit him to testify to that since it’s already in the record. It’s cumulative, so let’s not spend a lot of time on it.” 4. The City’s Engineering Expert, James Jeffery The City’s expert, James C. Jeffery III, a licensed traffic and civil engineer, testified that there are no warrants studies or check-the-box forms to use to figure out what type of signal, protective or permissive, should be installed. Instead, there are guidelines used to determine the type of signal to install, which require the use of one’s engineering judgment in interpreting and applying them. One such guideline is the 12. Manual of Uniform Traffic Control Devices (MUTCD), which provides guidelines and options engineers may use when installing or modifying signals. Jeffery relied on a portion of the MUTCD in forming his opinion regarding whether the signalization at the time of the incident was appropriate, which states that a protected left turn phase should be considered where certain alternatives could not be utilized and certain conditions exist. None of the alternatives – prohibiting left turns, making geometric changes to eliminate the turn, or providing protected-permissive or permissive-protected left turn operation – were feasible. Since none of the alternatives could be used, the following conditions should have been considered: (1) five or more left turn collisions for a particular left turn movement in the prior 12-month period; (2) left-turn delay of one or more vehicles waiting at the beginning of the green interval or still remaining in the left turn lane a certain percentage of the time; (3) new development; and (4) miscellaneous items, such as impaired sight distance or an offset intersection. None of these conditions, however, existed in 2010. In Jeffery’s opinion, the 2001 plans and F&P warrants study speak directly to the decision-making process used to select permissive phasing in 2001. Based on the warrants study, a decision was made to install a signal at the subject intersection and to prepare plans to effectuate the signal. Jeffery was not aware of any requirement that engineers document all of their mental processes when making an engineering decision. In Jeffery’s opinion, the phasing had nothing to do with the fact that there is a commercial development to the north, a residential area to the south, a school or an aging population, as none of these are unique features; instead, the intersection was like almost any other place where signals are installed except industrial areas or the like. As such, there was nothing wrong with having permissive phasing in 2010. Jeffery opined that the intersection as it existed immediately after the 2002 accident was not dangerous, split phasing was not required at that time and he would not have recommended it. 13.  C. The Motion for Directed Verdict At the close of the evidence, the City moved for a directed verdict on the grounds that the undisputed evidence established it was entitled to design immunity as to the 2001 plans under section 830.6, which encompassed all of plaintiffs’ claims, as well as immunity under section 830.4. During arguments on the motion, the trial court asked how the approval of the 2004 modification affected design immunity for the 2001 plans. The City’s attorney, Wu, responded it would not, unless there was a physical change in condition; the trial court agreed that was not the case, since plaintiffs’ attorney, Dreyer, stated at the outset that plaintiffs were not contending there was a change in physical condition. The trial court further agreed that the motion would be well-taken if the City had relied on the 2001 design and done nothing until after the 2010 accident, but it appeared the design immunity that existed in 2001 was lost when the 2004 design modification was approved, but it was never implemented even though there was money to fund it. The trial court later explained its problem: since the intersection in 2010 did not conform with the 2004 plans, which were an approved modification, it appeared that design immunity was lost with the modification. The trial court asked counsel whether there was a published decision that addressed that situation. Wu responded she had not looked at it, but she would. Following further argument concerning whether the 2004 plans were approved, the trial court found there was sufficient evidence to find that the 2004 plans had been approved, as there was a formal engineering design which a person in authority, Khatami, approved on the City’s behalf, and all indications were that everything had been done except actually implementing it. Based on that and the other discussions on the issue, the trial court denied the motion. D. The Jury’s Verdict The jury returned a special verdict in plaintiffs’ favor. It found that the intersection was in a dangerous condition at the time of the incident, the condition created 14. a reasonably foreseeable risk that this kind of incident would occur, the City had notice of the dangerous condition long enough to protect against it, and the dangerous condition was a substantial factor in causing plaintiffs’ harm. As to Carrizales, the jury found she was not negligent, and assigned 100 percent of the responsibility for plaintiffs’ harm to the City. The jury awarded plaintiffs $3,214,134 in damages comprised of $14,134 for funeral and burial expenses, $1.2 million for past non-economic losses, and $2 million for future non-economic losses. E. The Motions for JNOV and New Trial After judgment was entered, the City moved for JNOV and a new trial. In the motion for JNOV, the City sought to set aside the judgment and to enter judgment in its favor on a number of grounds, including that it was entitled to immunity under sections 830.4, 830.6 and 830.8, and there is no evidence to support a finding that the City lost its design immunity under section 830.6. In the motion for a new trial, the City alternatively asked the trial court for a new trial as to design immunity should the trial court deny the JNOV, as its denial of the motion for directed verdict was against the law. Plaintiffs filed written opposition to both motions. Following oral argument on the motions, the trial court denied them both. On the motion for JNOV, the trial court explained that it denied the City’s motion for directed verdict, not because it felt the City had forfeited the original design immunity due to a change in physical condition, but because the City approved a different design which it did not implement and therefore the intersection did not conform with the 2004 design at the time of the accident. Thus, the forfeiture was the City’s changing the design but not building it, even though it had plenty of money to do so. In response, the City’s attorney argued there was no case law that would support a finding that the 2001 design would not provide immunity even if the 2004 plans were approved. When Wu asked the trial court if it agreed the City had design immunity for the 2001 plans, the trial court responded that it never decided whether the plans were 15. reasonable, but if they were, there was a presumption of immunity since the plans were approved and implemented. The trial court, however, explained that it never got to immunity for the 2001 plans because it was looking at whether the intersection as it existed in 2010 complied with the approved 2004 plans. With respect to reasonableness, Wu asserted plaintiffs conceded that issue during trial, which was why the City did not argue the issue or present further evidence about it. Wu argued that if reasonableness was the only undetermined element that prevented the trial court finding design immunity, plaintiffs had conceded the issue, and if design immunity vested in 2001 after the signals were constructed, the only way it would no longer apply is if it were lost. Design immunity, however, could not have been lost because there had not been a change in physical condition and the 2004 design was not built. Dreyer agreed with the trial court’s analysis and asserted it did not need to reach the issue of immunity for the 2001 plans because the City had a new plan. Dreyer asserted he never agreed the City had immunity for the 2001 plans or that those plans were reasonable, claiming the issue was that the City never acted on the 2004 plans, even though they were approved, due to the City’s dysfunction. Dreyer wanted to make plaintiffs’ position “very clear” “that we never had to deal with this issue of reasonableness, and it was that conversation just to get to the 2004 when we had the hearing on this issue.”12 Dreyer also asserted hiring Elias to draw up the 2004 plans demonstrated the City lost confidence in the 2001 design. When Wu pointed out that the reporter’s transcript showed that Dreyer conceded the 2001 plans were reasonable during Rees’s testimony, not during the motion for directed verdict, Dreyer responded that at the time, they were dealing with “that discrete In plaintiffs’ written opposition to the motion for JNOV, plaintiffs stated they 12 conceded reasonableness “[d]uring oral argument on the motion for nonsuit only.” 16. issue, and we already had all of the evidence relative to the plan of 2004. It’s not – it’s an overstatement in terms of how they’re arguing it.” After Dreyer argued further on other issues raised, the trial court denied both the motion for new trial and motion for JNOV. DISCUSSION While the City raises a number of issues on appeal, we address only one – the design immunity of section 830.6 – as we conclude it is dispositive of this appeal.13 I. General Principles Governing Design Immunity “Under the Government Claims Act, ‘[a] public entity is not liable for an injury.’ ‘[e]xcept as otherwise provided by statute.’ ” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347 (Hampton).) “The Government Claims Act (Act) provides for direct liability on the part of public entities for injuries caused by maintaining dangerous conditions on their property when the condition ‘created a reasonably foreseeable risk of the kind of injury which was incurred’ and either an employee’s negligence or wrongful act or omission caused the dangerous condition or the entity was on ‘actual or constructive notice’ of the condition in time to have taken preventive measures.’ ” (Id. at pp. 347-348; see § 835.) Even if a dangerous condition is demonstrated, a public entity may still prevail through a variety of statutory immunities, which the public entity may assert as an affirmative defense. (Hampton, supra, 62 Cal.4th at p. 348.) The present case concerns the affirmative defense of design immunity under section 830.6.14 (Cornette v. 13The City challenges the jury’s finding of a dangerous condition, contending that the signal design did not constitute a dangerous condition as a matter of law. We do not decide the issue, however, because even if the signal design was a dangerous condition, the City is immune from liability under section 830.6. 14Section 830.6 provides, in relevant part: “Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to 17. Department of Transportation (2001) 26 Cal.4th 63, 68-69 (Cornette) [In actions arising out of an alleged dangerous condition of public property, under section 830.6, a “public entity may escape such liability by raising the affirmative defense of ‘design immunity.’ ”].) “A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan of design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.” (Id. at p. 66.) “The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design.” (Id. at p. 69.) Design immunity is often raised on a motion for summary judgment or nonsuit, thereby enabling the trial court to find the defense established as a matter of law. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939-940 (Grenier).) “The first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed.” (Id. at p. 940.) The third element, whether there is any substantial evidence of the reasonableness of the public entity’s approval of the plan or design, is a question statutorily reserved for the court, not a jury. (Cornette, supra, 26 Cal.4th at p. 72; § 830.6.) The “trial or give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.” The statute contains additional language that “governs circumstances under which design immunity may be lost when the danger arises out of a change in physical conditions of which the entity had notice and as to which it had time to obtain funding for and perform remedial work or provide appropriate warnings.” (Hampton, supra, 62 Cal.4th at p. 348.) 18. appellate court” is required to determine whether “there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.” (§ 830.6; Cornette, supra, 26 Cal.4th at p. 72.) The court is “not concerned with whether the evidence of reasonableness is undisputed; the statute provides immunity when there is substantial evidence of reasonableness, even if contradicted.” (Grenier, supra, 57 Cal.App.4th at p. 940.) The public entity must be granted immunity as long as reasonable minds can differ concerning whether a design should have been approved; “ ‘[t]he statute does not require that property be perfectly designed, only that it be given a design which is reasonable under the circumstances.’ ” (Id. at p. 941.) The City appealed from the order denying the motion for JNOV. A trial court must render JNOV whenever a motion for directed verdict for the aggrieved party should have been granted. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 (Sweatman); Code Civ. Proc., § 629.) A trial court may grant a motion for JNOV only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support it. (Sweatman, supra, 25 Cal.4th at p. 68.) The standard of review on appeal is the same as that in the trial court – whether any substantial evidence, contradicted or uncontradicted – supports the jury’s conclusion. (Ibid.) Where, as here, a motion for JNOV raises legal issues, such as the application of law to undisputed facts or the interpretation of a statute, we review the trial court’s ruling “under a de novo standard of review.” (Ibid.; see Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 829-830; Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710, 718-719.) Since the parties agree that the first element – a causal relationship between the design and the fatality – has been satisfied, the present case concerns the second and third 19. elements of design immunity set out in section 830.6 – discretionary approval and reasonableness. II. Discretionary Approval We begin with discretionary approval. This “ ‘simply means approval in advance of construction by the legislative body or officer exercising discretionary authority.’ [Citation.] A detailed plan, drawn up by a competent engineering firm, and approved by a city engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval.” (Grenier, supra, 57 Cal.App.4th at p. 940.) Discretionary approval need not be established with testimony of the individual who approved the project. (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 730- 731, disapproved on another point in Cornette, supra, 26 Cal.4th at pp. 73-74 & fn. 3.) A former employee may testify to the entity’s “discretionary approval custom and practice” even if the employee was not involved in the approval process at the time the challenged plan was approved. (Id. at p. 732.) Here, the City presented undisputed evidence that the 2001 plans were designed by professional engineering firm F&P, reviewed and approved by city engineer Lozano, who had the discretionary authority to approve the plans, and approved by the City council. The 2001 plans consist of detailed drawings of the intersection where the accident occurred, including the light phasing and signage. This evidence demonstrates the discretionary approval element as a matter of law. (See, e.g., Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1263 (Laabs) [evidence that an engineer employed by the public entity “reviewed and approved” construction plans established discretionary approval element as a matter of law]; Grenier, supra, 57 Cal.App.4th at p. 941 [city established discretionary authority element as a matter of law where “plans were prepared by Saguchi, a civil engineer, and approved by Alvarado, the city engineer, after review”]; Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 525 [discretionary approval element established as a matter of law where “the City’s 20. engineer, along with the engineers and other officials of the county who were recognized as being competent in the design of highways, approved the design before it was adopted by the City”].) Plaintiffs contend that to establish “approv[al]” by one “exercising discretionary authority” (§ 830.6), the City also was required to present evidence of a “deliberat[ive] process that resulted in the exercise of judgment[,]” such as data or analysis of why permissive phasing was used. They assert that without proof of a decision or an explanation of what the City considered in 2001 regarding the appropriateness of permissive left turns, there is no evidence that an actual discretionary decision was made to use permissive phasing and therefore no design immunity. Plaintiffs recognize that experts Ryan and Jeffery disagreed on whether split phasing was appropriate, but assert that design immunity does not attach unless there is evidence that either the City or Rees contemplated the same issues as the experts. Our Supreme Court recently rejected a similar claim in Hampton, supra, 62 Cal.4th 340. There, the plaintiffs, a driver who was seriously injured in an automobile accident at an intersection and his wife, sued the County of San Diego for a dangerous condition of public property, alleging the design and construction of the intersection afforded inadequate visibility under applicable county design standards. (Id. at pp. 343- 344.) The county moved for summary judgment based on design immunity, arguing the discretionary approval element was satisfied based on a county traffic engineer’s declaration which described the approval process for the intersection’s plans: before construction, a licensed civil and traffic engineer in charge of the county’s design engineering section, and to whom the county board of supervisors delegated discretion and authority to approve plans, signed the plans; and after the project was completed, another licensed civil engineer, who served as senior civil engineer of the design engineering section, approved and signed the as-built plans. (Id. at pp. 344-345.) In opposing the motion, the plaintiffs asserted there were disputed issues of fact regarding 21. discretionary authority as the plans did not show a raised embankment that the plaintiffs claimed rendered visibility inadequate under applicable county standards. (Id. at p. 345.) The trial court granted the motion, as the county established all three elements of design immunity—discretionary approval was established through evidence that the engineer who approved the plans had the discretion and authority to do so, and another engineer signed off on the as-built plans. The appellate court affirmed. (Id. at pp. 346-347.) Before the Supreme Court, the plaintiffs challenged the discretionary approval element. They contended that “ ‘approv[al]’ by one ‘exercising discretionary authority’ (§ 830.6), requires an exercise of discretion in the sense of an exercise of judgment or choice, and that, in their words, ‘one cannot truly exercise judgment or make a choice without an awareness of what is to be judged or chosen.’ ” (Hampton, supra, 62 Cal.4th at p. 348.) The plaintiffs asserted an engineer can only truly make a discretionary decision to approve a design, despite its nonconformity to governing standards, if the engineer realizes the nonconformity; “ ‘[b]y contrast, an engineer who approves a nonconforming design on the mistaken belief it conformed to governing standards has acted through inadvertence, not discretion.’ ” (Id. at pp. 348-349.) The Court disagreed, as the plaintiffs’ claim was essentially that there was an abuse of discretion, which is considered under the reasonableness element of the statute, not the discretionary approval element. (Hampton, supra, 62 Cal.4th at p. 349.) The Court looked first at the statutory intent, noting that “[t]he Law Revision Commission (Commission) comment regarding section 830.6 describes the provision as ‘provid[ing] immunity where a governmental body exercises the discretion given to it under the laws of the State in the planning and designing of public construction and improvements. . . .’ ” (Id. at p. 349.) The Court noted another Commission statement “suggests that the discretionary approval element of section 830.6 does not call for a jury to examine whether the employee who approved a plan realized that the plan deviated from applicable 22. standards.” (Hampton, supra, 62 Cal.4th at p. 349.) The Court explained that statement, which reflects legislative intent, “indicates that the law’s purpose is to avoid the dangers involved in permitting reexamination and second-guessing of governmental design decisions in the context of a trial: ‘While it is proper to hold public entities liable for injuries caused by arbitrary abuses of discretionary authority in planning improvements, to permit reexamination in tort litigation of particular discretionary decisions where reasonable men may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decision has been vested.’ ” (Ibid.) Plaintiffs’ interpretation of the statute ran afoul of this purpose, as their interpretation “would implicate the adequacy of the deliberative process at the discretionary approval stage and would lead a jury into just the sort of second-guessing concerning the wisdom of the design that the statute was intended to avoid.” (Id. at pp. 349-350.) The Hampton plaintiffs’ interpretation also conflicted with the statutory language, which “ ‘provides that the discretionary element may be established either by evidence of appropriate discretionary approval or evidence that the plan conformed with previously approved standards. (§ 830.6 [“Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design . . . where such plan or design has been approved . . .by some . . . employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved . . . .” (italics added)].)’ That the statute permits, as one alternative, that the discretionary approval element may be established through proof that the design complies with discretionarily approved standards suggests that the other alternative, that is, discretionary approval by the appropriate employee, does not require evidence of the employee’s awareness of and compliance with standards.” (Hampton, supra, 62 Cal.4th at p. 350.) 23.  Section 830.6’s structure as a whole supported the Court’s interpretation, as “once causation and approval by an authorized employee or compliance with appropriately adopted standards is established, there is immunity so long as ‘the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.’ (§ 830.6.) This three-part structure implies that the wisdom of the design is evaluated – by the court – under the reasonableness element of the immunity statute, and not under the element asking a jury to decide whether an employee vested with discretion to approve the plans actually approved them.” (Hampton, supra, 62 Cal.4th at p. 350.) It was plain to the Court that, considered as a whole, section 830.6 “was intended to avoid second-guessing the initial design decision adopted by an employee vested with authority to approve it, except to the extent the court determines that the employee’s approval of the design was unreasonable[,]” and it was only “at the reasonableness stage that the court would consider whether an employee, in either knowingly or unknowingly approving a design that deviates from applicable standards,” adopted a design that a reasonable legislative body or employee could have approved. (Hampton, supra, 62 Cal.4th at p. 351.) The Court also noted practical problems with the plaintiffs’ interpretation: “Although objective proof of the fact of approval by an employee with authority to approve the plan may be readily available, evidence of the standards actually considered by the decision makers, as well as the reasoning and motivation of those employees, will be much more scarce with the passage of time. Plaintiffs’ interpretation could produce the anomaly of different immunity outcomes for identical designs depending simply upon the recordkeeping ability of the public entities involved, or the availability of employees who are able to remember the decisionmaking process of the persons involved – a 24. process that may have occurred long before the lawsuit.” (Hampton, supra, 62 Cal.4th at p. 351.) The Court acknowledged that two appellate court cases supported the plaintiffs’ interpretation of the statute. In one of those, Levin v. State of California (1983) 146 Cal.App.3d 410 (Levin), the complaint for wrongful death of a driver who was killed when her vehicle went over an embankment alleged a dangerous condition because the highway design omitted adequate shoulders or a guardrail near the steeply sloped embankment. There was evidence that the design violated state guardrail standards. (Id. at pp. 414-415, 416.) The reviewing court found triable issues of fact on the causation and discretionary approval elements. (Id. at pp. 415-418.) With respect to the latter, the court explained: “As our Supreme Court pointed out in Cameron v. State of California (1972) 7 Cal.3d 318, 326 [(Cameron)], the rationale of the design immunity defense is to prevent a jury from simply reweighing the same factors considered by the governmental entity which approved the design. An actual informed exercise of discretion is required. The defense does not exist to immunize decisions that have not been made. Here, as in Cameron, supra, the design plan contained no mention of the steep slope of the embankment. The state made no showing that [the engineer], who alone had the discretionary authority, decided to ignore the standards or considered the consequences of the elimination of the 8’ shoulder. It follows that the state also failed to establish the second element of the defense.” (Levin, supra, 146 Cal.App.3d at p. 418.)15 15 As the Court explained in Hampton, in the other case, Hernandez v. Department of Transportation (2003) 114 Cal.App.4th 376 (Hernandez), the principal question before the appellate court was whether the discretionary approval element is one of fact for the jury or of law for the court. (Hampton, supra, 62 Cal.4th at p. 355.) After appropriately concluding the element is a jury question, the appellate court appeared to rely on Levin for the proposition that summary judgment was inappropriate if there was a dispute in the evidence concerning the factual questions whether the design violated applicable standards and whether responsible officials had knowingly approved a deviation from standards. (Ibid.) 25.  Noting that Levin and Hernandez relied on Cameron, the Hampton Court explained that Cameron is not authority for the interpretation of section 830.6 suggested in those cases. (Hampton, supra, 62 Cal.4th at p. 357.) In Cameron, the complaint alleged the plaintiffs’ injuries, incurred when they lost control of their car on a highway, were caused by a dangerous condition, namely uneven banking, or “superelevation,” on a curve in the road. (Cameron, supra, 7 Cal.3d at p. 323.) The Court reversed an entry of a judgment for nonsuit in favor of the state on its design immunity claim because, although the state had produced evidence that the highway plans were prepared by appropriate county employees and approved by the county board of supervisors, the plaintiffs produced evidence that the superelevation did not appear in the plan, and therefore the uneven superelevation was not the result of the approved design or plan. (Cameron, supra, 7 Cal.3d at pp. 325-326.) The Cameron Court explained that because the state did not present any evidence that the superelevation was the result of, or conformed to, a design approved by the public entity vested with discretionary authority, “there would be no reexamination of a discretionary decision in contravention of the design immunity policy [of preventing a jury from reweighing the same factors the public entity already considered during its discretionary approval of the design] because there has been no such decision proved. The state merely showed that the . . . Board of Supervisors approved a design showing the course of the right of way and the elevation above sea level of the white center stripe for the road. The design plan contained no mention of the superelevation intended or recommended. Therefore such superelevation as was constructed did not result from the design or plan introduced into evidence and there was no basis for concluding that any liability for injuries caused by this uneven superelevation was immunized by section 830.6.” (Cameron, supra, 7 Cal.3d at p. 326, fn. omitted.) The Hampton Court explained its discussion in Cameron of the rationale of design immunity, along with its comment that there had been no discretionary decision on the 26. superelevation, “were not intended to and did not suggest that, under the discretionary approval element of section 830.6, the public entity bears the burden of demonstrating that its employee considered all potentially applicable standards. Indeed, such a requirement would constitute a surprising retreat from the basic understanding that the discretionary approval element of design immunity asks whether a person vested with discretion to approve the plan did approve the plan or design that was built, and that the question whether it was wise to approve the plan is judged under the reasonableness element of the statute.” (Hampton, supra, 62 Cal.4th at p. 357.) The Court further explained that while it stated in Cameron that “the state’s engineer declared that ‘the design contained in the plans was in accordance with mid-1920 standards of design and was reasonable” (Cameron, supra, at p. 325), . . . nothing in our statement suggests that, as opposed to being a circumstance that was relevant to the reasonableness of the plans at the time they were adopted in 1920, evidence concerning the approving employee’s awareness of applicable standards was necessary to the prima facie showing for discretionary approval element.” (Hampton, supra, 62 Cal.4th at pp. 357-358.)16 Here, plaintiffs’ interpretation of the statute – that proof of how a decision is made is necessary to establish the exercise of discretionary authority – is not supported by the statute’s language or intent. As in Hampton, plaintiffs’ interpretation: (1) would implicate the adequacy of the deliberation process at the discretionary approval stage and lead the jury into second-guessing the wisdom of the design that the statute was intended to avoid; (2) conflicts with the statutory language, as an exercise of “discretionary authority to give such approval” does not entail a conscious weighing of design or plan options, but does require the employee to use discretion in approving the plan or design; and (3) presents practical problems, since, as shown true in this case, evidence of what 16Accordingly, the Court disapproved of Levin and Hernandez to the extent they are inconsistent with its opinion. (Hampton, supra, 62 Cal.4th at p. 358.) 27. the employee with authority to approve the plan actually considered, as well as his or her reasoning and motivations, will be scarcer with the passage of time and could lead to different immunity outcomes for identical designs depending on the public entity’s record keeping or employees’ memories. Plaintiffs contend that Cameron, supra, 7 Cal.3d 318, and Levin, supra, 146 Cal.App.3d 410, support their interpretation. Their reliance, however, is misplaced; as the Hampton Court explained, Cameron does not stand for the proposition that the discretionary approval element requires the public entity to demonstrate its employee considered all potentially applicable standards. (Hampton, supra, 62 Cal.4th at p. 357.) Instead, the discretionary approval element asks whether a person vested with discretion to approve the plan actually approved it, and the wisdom of approving the plan is judged under the reasonableness element. (Ibid.) Plaintiffs contend there is no evidence the City made a decision to adopt permissive phasing as part of the 2001 plans. We disagree, as the fact that permissive phasing was part of the plans shows that a decision was made to use that type of phasing. Even if permissive phasing was adopted by default and no other type of phasing was considered, its use was still a design decision. Plaintiffs’ real complaint is the lack of evidence of the deliberative process, but as we explained, that is not required to show discretionary approval. Instead, the wisdom of approving the 2001 plans with permissive phasing is judged under the reasonableness element of section 830.6. III. Reasonableness of the 2001 Plans As discussed above, a public entity claiming a design immunity defense must present substantial evidence supporting the reasonableness of the plan or design. (Cornette, supra, 26 Cal.4th at p. 69.) Our task “is to apply the deferential substantial evidence standard to determine whether any reasonable [public] official could have approved the challenged design. [Citation.] If the record contains the requisite substantial evidence, the immunity applies, even if the plaintiff has presented evidence 28. that the design was defective.” (Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 757.) “The fact of approval by competent professionals can, in and of itself, establish the reasonableness element.” (Higgins v. State of California (1997) 54 Cal.App.4th 177, 187, disapproved on another point in Cornette, supra, 26 Cal.4th at pp. 73-74 & fn. 3.) However, “[t]ypically, ‘any substantial evidence’ consists of an expert opinion as to the reasonableness of the design, or evidence of relevant design standards.” (Laabs, supra, 163 Cal.App.4th at pp. 1263-1264.) Both parties make arguments regarding whether there was substantial evidence of the reasonableness of permissive phasing in the 2001 plans. We do not reach the merits of those arguments, however, because, as the City points out, the record shows plaintiffs conceded at trial that the 2001 plans were reasonable when they were approved.17 Contrary to plaintiffs’ assertion, both below and on appeal, that the concession was made during post-trial hearings, the concession actually was made in the midst of the City’s case-in-chief, during a break in the direct examination of one of its witnesses. While the parties and the court were discussing the scope of the testimony of that witness, plaintiffs’ attorney clearly answered “No, Your Honor[,]” when the trial court asked if plaintiffs were contending that the 2001 design was unreasonable when it was adopted and approved. Plaintiffs’ attorney also did not correct the trial court when the court stated, soon thereafter, that whether the plans were reasonable was not an issue. On appeal, plaintiffs attempt to avoid the impact of this concession by asserting their attorney’s representation as to their position was inadvertent and a “spontaneous 17 In denying the motions for directed verdict and JNOV on the issue of design immunity, the trial court relied exclusively on its finding that the City approved the 2004 plans, reasoning that there was no immunity because the intersection did not conform to the 2004 plans. While the City addresses this rationale in its opening brief, plaintiffs do not attempt to defend the trial court’s ruling on this basis. Instead, plaintiffs assert the 2004 plans are relevant to whether the 2001 plans were reasonable when approved. Since Plaintiffs conceded reasonableness below, however, we do not address the impact of the 2004 plans. 29. utterance.” They claim they argued reasonableness of the 2001 plans through their expert, Ryan, and there is nothing in the record to suggest their attorney’s “inadvertently incorrect statement was binding.” We conclude that plaintiffs are bound by the concession and decline to reach the merits of the arguments regarding reasonableness the parties raised in their appellate briefs. Similar to a stipulation, a concession by counsel at trial or judicial admission eliminates the need to prove the fact at issue admitted and is binding on the client absent fraud. (Horn v. Atchison, T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 605-606 [defense counsel’s unequivocal invitation to a plaintiff’s verdict in opening statement was a concession of liability]; Bank of America v. Lamb Finance Co. (1956) 145 Cal.App.2d 702, 708 [no prejudice from jury denial where defense counsel conceded liability on second day of trial]; Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 561-562 [counsel’s admission at trial eliminated complaint allegation that an accounting had been requested from defendants].) Since plaintiffs conceded the 2001 plans were reasonable when adopted, the City was not required to prove reasonableness. There is nothing in the record to suggest plaintiffs’ attorney’s concession was inadvertent or spontaneous. To the contrary, plaintiffs admitted in their written opposition to the City’s JNOV motion that they “conceded reasonableness[,]” but asserted it was “[d]uring oral argument on the motion for nonsuit only.” Plaintiffs inconsistent denials of their attorney’s concession belie its truth. IV. Conclusion Since all of the elements of design immunity are established, the City is immune from liability for any dangerous condition of the intersection.18 Based on the City’s 18While evidence was produced at trial concerning signs that could have been installed in the intersection to draw drivers’ attention to the crosswalk’s presence, the 30. immunity, the judgment against the City cannot stand and we have no choice but to reverse it.19 DISPOSITION The judgment against the City is reversed. The matter is remanded to the trial court with directions to enter judgment in favor of the City. Costs on appeal are awarded to the City. _____________________ GOMES, J. WE CONCUR: _____________________ LEVY, Acting P.J. _____________________ KANE, J. City did not lose immunity because those signs were not installed, as signage at the intersection was part of the 2001 design. 19 We note that the City argued on appeal that should the judgment against it be affirmed, we should find the jury erred in exonerating Carrizales because she was negligent as a matter of law, and remand the matter for an appropriate allocation of fault. The City, however, never filed a cross-complaint against Carrizales. In the absence of a cross-complaint, the City does not have standing to raise the issue of Carrizales’s exoneration because it is not aggrieved thereby. (Holt v. Booth (1991) 1 Cal.App.4th 1074, 1080 [“the exoneration of a joint tortfeasor from liability does not ‘aggrieve’ the other individually liable tortfeasor(s) insofar as that word is understood to apply to a party’s standing to appeal”]; see Cook v. Superior Court (1969) 274 Cal.App.2d 675, 679 [“A defendant who is individually liable is not aggrieved by the exoneration, even though erroneous, of a codefendant.”].) Accordingly, while Carrizales filed a respondent’s brief and appeared at oral argument through her attorney, the issues concerning her liability cannot be asserted in this appeal and the judgment in her favor must stand. 31. 

512 F.2d 475 UNITED STATES of America, Plaintiff-Appellant,v.CONTINENTAL CASUALTY COMPANY, Defendant-Appellee. No. 74-1896. United States Court of Appeals,Fifth Circuit. May 5, 1975.Rehearing Denied June 3, 1975. Robert W. Rust, U. S. Atty., Mervyn L. Ames, Asst. U. S. Atty., Miami, Fla., Leonard Schaitman, Michael Kimmel, Attys., Dept. of Justice, Washington, D. C., for plaintiff-appellant. Wesley G. Carey, Steven R. Berger, Miami, Fla., for defendant-appellee. Appeal from the United States District Court for the Southern District of Florida. Before DYER, MORGAN and GEE, Circuit Judges. LEWIS R. MORGAN, Circuit Judge: 1 This case arises, somewhat tangentially, from a contract awarded on June 6, 1966, by the United States Army Corps of Engineers to Mike Bradford & Co., Inc. (hereafter "Bradford") and Southern Crane Corp., Inc., as a joint venture, in the amount of $273,645.00 for production of eleven hoists to be used in a lock and dam project on the Arkansas River. The joint venture immediately obtained a performance bond for $136,822.50 from appellee Continental Casualty Company (hereafter "Continental"), a corporate surety. On August 16, Bradford subcontracted with McNally Pittsburgh Manufacturing Corporation (hereafter "McNally") for fabrication of some of the equipment. 2 As provided by contract, McNally furnished progress reports known as "work estimates" to Bradford, which forwarded them to the government; the government paid Bradford which was in turn obliged to pay McNally. As of August 30, 1967, four payments totalling $159,872.13 had been made to Bradford; unfortunately, none of this money had been forwarded to McNally, even though that company had by then completed 66% of the fabrication. Suspecting finally that all was not as it should be, McNally notified the government on December 27, 1967, that it had not yet received payment from Bradford. In an attempt to improve what appeared to be a precarious position, McNally subsequently declared a lien on the partially completed equipment, all of which was still in its plant; the government denied the validity of the lien. 3 In early March, 1968, Bradford notified the government and Continental that it was financially unable to continue the project. On March 15, the government informed Bradford and Continental that the contract was terminated for default; in the same letter the government stated that McNally was still obligated to deliver the completed equipment and that all of the equipment covered by the progress payments to Bradford were the property of the United States. McNally, as noted, disagreed with this analysis, and asserted that its alleged lien took precedence over any government claim. At this point, the government took the action which has since become the focal point of this litigation: on May 27, 1968, it granted a reprocurement contract to McNally for $291,000.00 for purchase of the hoists. The contract thus ignored the $159,872.13 in payments already made to Bradford for purchase of the same equipment. On June 5, 1968, the government demanded payment from Continental of $177,227.13 (the second payment of $159,872.13 plus $17,355.00 in reprocurement costs) and on October 13, 1972, it filed suit in federal district court to enforce its claim. On cross motions for summary judgment, the court ruled in favor of Continental as to any liability in excess of the government's reprocurement costs. The court held that the government's second payment to McNally for the 66% of the equipment for which Bradford had already been paid prejudiced Continental's right of subrogation against McNally and therefore released it pro tanto from its obligation to the government. For reasons explained below, we affirm the judgment of the district court. 4 Ordinarily in a case such as this one, we would initially determine whether state or federal law controls our disposition of the substantive issue. Since the suit was brought in Florida, and the surety bond was made there, and Florida generally applies a lex loci contractu analysis,1 our choice would be between federal and Florida law. Since we find that there is no difference between the provisions of these two bodies of law in this area, however, we need not decide the choice of law question, but may proceed directly to the substantive problem. 5 It may be helpful to clarify at the outset precisely what is at issue here. The government insists that the right to subrogation does not accrue in favor of a surety until the surety has performed its contractual obligation, a precondition which Continental clearly did not fulfill. This proposition is true, but it is only a starting point for our analysis of this case; we must decide which party should bear the loss when the government in effect prevents the surety from performing its obligation, thereby negating any possibility of subrogation. 6 As a creation of equity, subrogation is governed generally by broad equitable principles rather than by strict legal rules. New York Title and Mortgage Co. v. First National Bank of Kansas City, Mo., 51 F.2d 485 (8th Cir. 1931), cert. denied 284 U.S. 676, 52 S.Ct. 131, 76 L.Ed. 572 (1931); Dantzler Lumber and Export Co. v. Columbia Casualty Co., 115 Fla. 541, 156 So. 116 (1934). Therefore, where one of two relatively innocent parties must suffer a loss, the one whose action causes the loss must bear it. Gray v. Jacobsen, 56 App.D.C. 353, 13 F.2d 959 (1926). Further, a surety is entitled to be subrogated to the benefit of all securities and means of payment under the creditor's control, and any act by the creditor depriving the surety of this right discharges it pro tanto; thus, the creditor must, for the surety's benefit, apply to the debt all money or security within his control and which he has a right to apply. If he voluntarily surrenders or releases such security, the surety is discharged pro tanto. See Standard Accident Insurance Co. v. Bear, 134 Fla. 523, 184 So. 97 (1938). Of course, the creditor will not always be able to prevent loss to the surety; nevertheless, it must act in good faith and not unreasonably prejudice the surety's right to subrogation. See United States v. United States Fidelity and Guaranty Co., 236 U.S. 512, 35 S.Ct. 298, 59 L.Ed. 696 (1914); Cf. Gibbs v. Hartford Accident and Indemnity Co., 62 So.2d 599 (Fla.1952). 7 Applying these broad maxims is of course more difficult than stating them in the abstract. The factual situation in early 1968, and its legal ramifications, were obviously unsettled. The government had paid out more than $159,000.00 for equipment to which it therefore had a valid claim under the terms of the contract.2 On the other hand, McNally was contending that it had a valid lien on the equipment and that such lien had "attached as soon as the work and material was furnished ... prior to the passing of any title to the Corps of Engineers." Clearly, resolving this contest in commercial metaphysics would have taken some time and could have delayed completion of the dam and lock. 8 As noted above, the government chose to extricate itself from this dilemma by simply abandoning its claim to title in the equipment and paying for it a second time. As the district court summarized: 9 The one problem with this arrangement ... is that by relating the contract in this fashion (the Corps) not only obligated the surety to pay the full amount of the bond, but concurrently destroyed its right to be subrogated to the title the Corps held in the hoists at the time of reprocurement. The surety could not now proceed against McNally to replevy the partially completed-and partially paid for-hoists. 10 The surety had to be given some way to protect its right to be subrogated to the title of the Corps in the hoists at the date of termination, and the (reprocurement contract) effectively destroyed that right. 11 Additionally, and crucially, the government could have protected Continental's right without impairing its own interest in speedy completion of the project. It could have initiated litigation against McNally to determine title to the 66% of the hoists for which it had already paid, while at the same time paying into court $159,872.13. While the suit was in progress, it could then have entered into the reprocurement contract with McNally, and demanded payment of the bond by Continental. After paying the bond, Continental would have been subrogated to any right the Corps was eventually determined to have had in the partially completed equipment. 12 Balancing the equities of the two parties, then, we find that the scales tip in favor of the surety. The government has great discretion in the administration of its contracts, and its interest in their timely completion is entitled to great weight. Argonaut Insurance Company v. United States, 434 F.2d 1362, 193 Ct.Cl. 483 (1970). Here, however, the government could have protected this interest without destroying the surety's extremely valuable subrogation right; its action here constituted an abuse of discretion, and released the surety pro tanto. 13 The judgment of the district court is therefore affirmed. 1 Confederation Life Association v. Vega y Arminan, 207 So.2d 33 (Fla.1968) 2 Clause SC-7 of the contract between Bradford and the government provided that, upon payment to Bradford for the work estimates submitted, "... title to all equipment parts, articles and materials and work progress included in such estimates of work performed shall forthwith vest in the Government."

177 B.R. 619 (1995) In re Michael Joe and Vera STEVENS. Bankruptcy No. 94-40357 S. United States Bankruptcy Court, E.D. Arkansas, Little Rock Division. January 24, 1995. Joel Taylor, for debtor. Diana Maulding, Little Rock, AR, for Warehouse Paint. James Clark, Little Rock, AR, for intervenor. Randy Rice, trustee, Little Rock, AR. ORDER GRANTING MOTION FOR SUMMARY JUDGMENT MARY D. SCOTT, Bankruptcy Judge. THIS CAUSE is before the Court upon the debtors' Motion for Summary Judgment, filed on December 28, 1994, to which the creditor Warehouse Paint responded on January 10, 1995. The issue before the Court is a simple one regarding property of the estate. Indeed, the Supreme Court has issued an opinion on the issue before the Court: whether a debtor's interest in an ERISA qualified pension plan is property of the estate. Despite the relative simplicity of this issue, it has engendered a tortuous, litigation in this case. The debtors filed a Chapter 13 petition in bankruptcy on February 23, 1994. The creditor Warehouse Paint twice objected to the exemptions filed by the debtors, followed by several hearings, revisions to schedules, and settlements, which, apparently, did not completely resolve the dispute between the parties. Upon the conversion of the case to Chapter 7 of the Bankruptcy Code, the debtor filed amended schedules pursuant to section 522(b)(1) listing as exempt the debtor husband's interest in woodworking tools and his interest in a profit sharing plan at his former place of employment, Entergy Corporation. Although the debtor ceased working for Entergy Corporation prior to filing the bankruptcy petition, he had elected to maintain his interest in the profit sharing plan, rather than receiving a disbursement. On July 15, 1994, the creditor Warehouse Paint again objected to the exemptions. On September 13, 1994, the matter was called for hearing, but neither the debtors nor their attorney appeared. Accordingly, the creditor Warehouse Paint submitted an Order sustaining its objections to exemptions,[1]*620 which was entered on September 19, 1994. This Order prompted the debtors to obtain new counsel who immediately moved to set aside the Order of September 19, 1994. In addition, Entergy Corporation moved for, and was granted, permission to intervene in the proceedings. Hearing was held on November 15, 1994, on the Motion to Set Aside, after which the motion was granted, by Order entered on November 18, 1994. The debtors have now moved for summary judgment on the issue of whether the profit sharing plan is property of the estate. The debtors assert that, under Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992), the profit sharing plan, an Employee Retirement Income Security Act ("ERISA") qualified plan, is not, as a matter of law, property of the estate such that an objection to the exemption of such property is meaningless and should be dismissed.[2] Warehouse Paint asserts that there is a question of fact as to whether the funds are held by Entergy Corporation as a fiduciary such that summary judgment is inappropriate. Property of the estate includes all legal or equitable interests of the debtor in property as of the commencement of the case. 11 U.S.C. § 541(a). However, under section 541(c)(2), "A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title." This means that restrictions on transfers under ERISA qualified plans are valid and enforceable in bankruptcy. Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992). "The natural reading of the provision entitled a debtor to exclude from property of the estate any interest in a plan or trust that contains a transfer restriction enforceable under any relevant nonbankruptcy law." Id. at ___, 112 S.Ct. at 2246. The uncontroverted evidence before the Court is that the plan in which the debtor husband has an interest is ERISA qualified and that the plan contains, as it must under ERISA, 29 U.S.C. § 1056(d)(1); 26 U.S.C. § 401(a)(13), a provision restricting transfers of property. Thus, since the plan is ERISA qualified, the debtor husband's interest in the profit sharing plan is excluded as property of the estate. See Patterson v. Shumate, 504 U.S. at ___, 112 S.Ct. at 2246. Warehouse Paint asserts that "controlling" ERISA section 1056(a)(3) removes the trust status of the funds when an employee quits his job. This is an incorrect reading of the statute. Section 1056 provides in part: (a) Commencement date for payment of benefits. Each pension plan shall provide that unless the participant otherwise elects, the payment of benefits under the plan to the participant shall begin not later than the 60th day after the latest of the close of the plan year in which — (1) occurs the date on which the participant attains the earlier of age 65 or the normal retirement age specified under the plan, (2) occurs the 10th anniversary of the year in which the participant commenced participation in the plan, or *621 (3) the participant terminates his service with the employer. * * * * * * (d)(1) Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated. 29 U.S.C. § 1056(a), (d)(1). Assuming this section "controls," the statute does not remove the trust status of the undisbursed funds. The creditor's argument, that upon termination of employment the assets are immediately converted to non-plan assets and are not within the purview of ERISA, does not find support in the cited statute. Rule 56, Federal Rules of Civil Procedure, provides that summary judgment shall be granted where the pleadings, depositions, answers to interrogatories, admissions or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Burnette v. Dow Chemical Company, 849 F.2d 1269, 1273 (10th Cir.1988). Summary judgment is appropriate when a court can conclude that no reasonable juror could find for the non-moving party on the basis of the evidence presented in the motion and response. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). As the Supreme Court has made clear, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327, 106 S.Ct. at 2555. After the movant has made a properly supported summary judgment motion, "the nonmovant [has] the burden of setting forth specific facts showing the existence of a genuine issue of fact for trial." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. In the instant case, the debtors have submitted an affidavit from the appointed representative of the Employee Benefits Committee governing administration of the plan at issue in this case. The affidavit avers that the plan in which the debtor husband holds an interest is ERISA qualified and that the plan has the requisite anti-alienation provision. The creditor has offered no evidence in rebuttal of this testimony. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. (The nonmovant may not rely on the allegations or denials in its pleadings to establish a genuine issue of fact, but must come forward with an affirmative showing of evidence). Inasmuch as such property interests may be excluded, under the Bankruptcy Code, from property of the estate, Patterson v. Shumate, 504 U.S. ___, 112 S.Ct. 2242, 119 L.Ed.2d 519 the debtors are entitled to a ruling from the Court as a matter of law that his interest in the plan benefits are not property of the estate.[3] Accordingly, it is ORDERED that the debtors' Motion for Summary Judgment, filed on December 28, 1994, is GRANTED. The objection by the creditor Warehouse Paint to the debtor's exemption in the Entergy Corporation plan benefits is overruled. Trial of the remaining issue regarding the debtor's claimed exemption in tools will be set by separate notice. IT IS SO ORDERED. NOTES [1] Although the instant objection appears to seek turnover of the funds held in the pension plan, there is no motion for turnover before the Court. Only the Chapter 7 trustee may sue for turnover of estate assets; the creditor has no standing to do so. See Leird Church Furniture Manufacturing Company v. Union National Bank of Little Rock (In re Leird Church Furniture Manufacturing Company), 61 B.R. 444, 446 (Bankr.E.D.Ark. 1986). [2] It is possible that some of the creditor's confusion arises from the fact that the debtors claim the property as exempt despite the fact that it is not property of the estate. This procedure is due, in part, to a lack of clarity on the part of the petition forms since there is specific schedule in which to list assets not property of the estate, other than the schedule in which the debtors list exempt property. It is clearly the better course for debtors to list all property in which they have an interest, even though it may not be property of the estate. Although it may not be technically correct to list the property as exempt since it is not even property of the estate, listing such property as exempt is an error which gives notice to all creditors that the debtors claim that the creditors may not reach that property. It is always better for debtors to err by giving excess information than to fail to disclose information. [3] It is interesting to note the values at issue in this case. There are no assets of any great value in the estate. Even were the entire pension plan property of the estate subject to distribution in this case, the entire amount would be paid towards administrative costs and the unsecured priority creditors. The objecting creditor would receive $00.00 even if the asset were brought into the estate. Even were there no administrative costs or priority creditors, the creditor would only be entitled to its pro rata share of the proceeds.

Slip Op. 18-116 UNITED STATES COURT OF INTERNATIONAL TRADE JINXIANG HUAMENG IMP & EXP CO., LTD. and CS FARMING PRODUCTS, INC., Plaintiffs, v. UNITED STATES, Defendant, Before: Jennifer Choe-Groves, Judge and Court No. 16-00243 HARMONI INTERNATIONAL SPICE, INC., ZHENGZHOU HARMONI SPICE CO., LTD., FRESH GARLIC PRODUCERS ASSOCIATION, CHRISTOPHER RANCH, L.L.C., THE GARLIC COMPANY, VALLEY GARLIC, and VESSEY AND COMPANY, INC., Defendant-Intervenors. OPINION AND ORDER [Remanding for the U.S. Department of Commerce to redetermine whether Plaintiffs’ sale subject to the new shipper review of fresh garlic from the People’s Republic of China was bona fide.] Dated: September 10, 2018 John J. Kenkel, Alexandra H. Salzman, Gregory S. Menegaz, and J. Kevin Horgan, deKieffer & Horgan, of Washington, D.C., for Plaintiffs Jinxiang Huameng Imp & Exp Co., Ltd. and CS Farming Products, Inc. With them on the brief was Judith L. Holdsworth. Meen Geu Oh, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant United States. With her on the brief were Chad Court No. 16-00243 Page 2 A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Emma T. Hunter, Attorney, Office of Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce. Michael J. Coursey, John M. Herrmann, II, Joshua R. Morey, and Heather N. Doherty, Kelley Drye & Warren LLP, of Washington, D.C., for Defendant-Intervenors Fresh Garlic Producers Association, Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc. Bruce M. Mitchell, Ned H. Marshak, and Andrew T. Schutz, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP, of New York, N.Y., for Defendant-Intervenors Harmoni International Spice, Inc. and Zhengzhou Harmoni Spice Co., Ltd. Choe-Groves, Judge: This case involves a new shipper review of imported fresh garlic from the People’s Republic of China (“China”). Plaintiffs Jinxiang Huameng Imp & Exp Co., Ltd. (“Huameng”) and CS Farming Products, Inc. bring this action contesting the rescission of a new shipper review, in which the U.S. Department of Commerce (“Commerce” or “Department”) found that Huameng’s single sale of fresh garlic was not bona fide. See Fresh Garlic From the People’s Republic of China, 81 Fed. Reg. 73,378 (Dep’t Commerce Oct. 25, 2016) (final rescission of the semiannual antidumping duty new shipper review of Jinxiang Huameng Imp & Exp Co., Ltd.) (“Huameng Rescission”); see also Issues and Decision Memorandum for the Final Rescission of Antidumping Duty Semiannual New Shipper Review on Fresh Garlic from the People's Republic of China: Jinxiang Huameng Imp & Exp Co., Ltd., A-570-831, (Oct. 14, 2016), available at https://enforcement.trade.gov/frn/summary/prc/2016- 25675-1.pdf (last visited Sept. 5, 2018) (“Final IDM”). This matter is before the court on Plaintiffs’ Rule 56.2 motion for judgment on the agency record challenging the final results of the Department of Commerce’s rescission of a new shipper review. See Pls. Jinxiang Huameng Imp & Exp Co., Ltd & CS Farming Products, Inc.’s Court No. 16-00243 Page 3 Rule 56.2 Mot. J. Agency R., Oct. 16, 2017, ECF No. 60; see also Pls. Jinxiang Huameng Imp & Exp Co., Ltd. & CS Farming Products, Inc. Mem. Supp. Mot. J. Agency R., Oct. 16, 2017, ECF No. 60-2 (“Pl. Mem.”); Pls. Jinxiang Huameng Imp & Exp Co., Ltd. and CS Farming Products, Inc.’s Reply Def.’s Mem. Opp’n Pls.’ Rule 56.2 Mot. J. Agency R., Feb. 26, 2018, ECF No. 83. Defendant United States urges the court to uphold Commerce’s decision. See Def.’s Mem. Opp’n Pls.’ Mot. J. Agency R., Jan. 12, 2018, ECF No. 80 (“Def. Resp.”). The Fresh Garlic Producers Association, Christopher Ranch, L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc. (collectively, “Petitioners”) oppose Plaintiffs’ motion. See Def.- Intervenors’ Resp. Pls.’ Mot., Dec. 22, 2017, ECF No. 75 (“Pet. Resp.”). Harmoni International Spice Inc. and Zhenghou Harmoni Spice Co., Ltd. (collectively, “Harmoni”) support the rescission. See Def.-Intervenor Harmoni’s Resp. Pls.’ Mot., Dec. 22, 2017, ECF No. 68. The Parties requested oral argument, but were unable to schedule a mutually convenient hearing date. The court did not hold an oral argument and is making its decision based on the briefs submitted by the Parties. PROCEDURAL HISTORY Commerce published an antidumping duty order regarding fresh garlic from the People’s Republic of China on November 16, 1994. See Fresh Garlic From the People’s Republic of China, 59 Fed. Reg. 59,209 (Dep’t Commerce Nov. 16, 1994) (antidumping duty order). The order resulted in the imposition of antidumping duties on entries of fresh garlic from China. Id. at 59,210. Huameng, an exporter and producer of fresh garlic, was established on November 11, 2014. Bona Fide Nature of the Sale in the Antidumping Duty New Shipper Review of the Fresh Court No. 16-00243 Page 4 Garlic from the People’s Republic of China (PRC): Jinxiang Huameng Imp & Exp Co., Ltd. at 3, PD 126, bar code 3469888-01 (May 17, 2016) (“Bona Fide Memo”). As a company formed after the commencement of the eighteenth administrative review of fresh garlic, Huameng requested a new shipper review based on a single sale of single-clove garlic that it produced and exported, and Commerce initiated a new shipper review for the period from November 1, 2014 to April 30, 2015. See Fresh Garlic from the People’s Republic of China, 80 Fed. Reg. 43,062, 43,062–63 (Dep’t Commerce July 21, 2015) (initiation of antidumping duty new shipper review; 2014–2015). The Department issued initial and supplemental questionnaires, to which Huameng responded in a timely manner. See Decision Memorandum for Preliminary Results of Antidumping Duty New Shipper Review of Fresh Garlic from the People’s Republic of China: Jinxiang Huameng Imp & Exp Co., Ltd. at 2, A-570-831, (May 17, 2016), available at https://enforcement.trade.gov/frn/summary/prc/2016-12336-1.pdf (last visited Sept. 5, 2018) (“PDM”); Pl. Mem. 37. Commerce did not ask follow-up questions related to its bona fide determination. See Pl. Mem. 23. From November 17, 2015 to May 6, 2016, Commerce received comments from interested parties, including Harmoni. See PDM at 2. Commerce issued a Decision Memorandum regarding the bona fide nature of the sale on May 17, 2016. See Bona Fide Memo. Harmoni, a participant in an ongoing administrative review of the industry, filed a rebuttal and allegations of fraud against Huameng. See Final IDM at 2. Petitioners filed rebuttal comments. See id. Responding to Harmoni’s claims of fraud against Huameng, Commerce conducted a verification review and issued a report on September 28, 2016. See id.; Verification of the Sales and Factors Response of Jinxiang Huameng Import & Export Co., Ltd. in the New Shipper Review of Garlic from the People’s Republic of China, PD 155, bar code 3510186-01 Court No. 16-00243 Page 5 (Sep. 28, 2016). After a comment period, Commerce issued the final results on October 25, 2016. See Huameng Rescission, 81 Fed. Reg. at 73,378. ISSUE PRESENTED The issue presented to the court is whether Commerce’s decision that Plaintiffs’ sale subject to the new shipper review was not bona fide is supported by substantial evidence. For the reasons discussed below, the court finds that Commerce’s decision is not supported by substantial evidence and remands this matter for Commerce to redetermine, consistent with this opinion, whether Plaintiffs’ sale subject to the new shipper review was bona fide. JURISDICTION & STANDARD OF REVIEW The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012), and 28 U.S.C. § 1581(c), which grant the court authority to review actions contesting final determinations in an antidumping duty investigation. The court will sustain a determination by Commerce that is supported by substantial evidence on the record and is otherwise in accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i). In determining whether substantial evidence supports Commerce's determination, the court considers “the record as a whole, including evidence that supports” or that “fairly detracts from the substantiality of the evidence.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1379 (Fed. Cir. 2003). ANALYSIS Pursuant to 19 U.S.C. § 1675(a)(2)(B)(i), Commerce must conduct a new shipper review when requested by a new exporter or producer who (1) was not subject to the previous period of investigation for an antidumping duty review, and (2) is not affiliated with any exporter or Court No. 16-00243 Page 6 producer that exported during the previous period. 19 U.S.C. § 1675(a)(2)(B)(i). The exporter or producer requesting the new shipper review must have exported, or sold for export, subject merchandise to the United States. 19 C.F.R. § 351.214(b)(1). “The purpose of a new shipper review is to provide an opportunity to an exporter or producer who may be entitled to an individual antidumping rate, but was not active during the investigation, to be considered for such a rate.” Marvin Furniture (Shanghai) Co. Ltd. v. United States, 36 CIT __, __, 867 F. Supp. 2d 1302, 1307 (2012). To determine whether a sale is bona fide, Commerce employs a totality of the circumstances test to determine whether the subject sale is commercially reasonable. Commerce considers the following factors in its bona fide analysis: (I) the prices of such sales; (II) whether such sales were made in commercial quantities; (III) the timing of such sales; (IV) the expenses arising from such sales; (V) whether the subject merchandise involved in such sales was resold in the United States at a profit; (VI) whether such sales were made on an arms-length basis; and (VII) any other factor the administering authority determines to be relevant as to whether such sales are, or are not, likely to be typical of those the exporter or producer will make after completion of the review. 19 U.S.C. § 1675(a)(2)(B)(iv). Commerce may rescind a new shipper review if (1) “there has not been an entry and sale to an unaffiliated customer in the United States of subject merchandise” during the period of review, and (2) an “expansion of the normal period of review to include an entry and sale to an unaffiliated customer in the United States of subject merchandise would be likely to prevent the Court No. 16-00243 Page 7 completion of the review within the [required] time limits.” 19 C.F.R. § 351.214(f)(2). While 19 C.F.R. § 351.214(f)(2) does not specifically address a bona fide requirement, “Commerce interprets the term ‘sale’ in [19 C.F.R.] § 351.214(f)(2)(i) to mean that a transaction it determines not to be a bona fide sale is, for purposes of the regulation, not a sale at all.” Shijiazhuang Goodman Trading Co., Ltd. v. United States, 40 CIT __, __, 172 F. Supp. 3d 1363, 1373 (2016). When Commerce determines that the sale subject to the new shipper review is not bona fide, it may rescind the review. Plaintiffs assert that Commerce erred in determining that the subject sale was not bona fide because its decision was not based on substantial evidence on the record, was arbitrary and capricious, and was not in accordance with the law. Plaintiffs’ primary challenge is to Commerce’s determination that Commerce did not have sufficient evidence to determine whether Huameng’s subject sale was bona fide, and contest this finding on several bases. See Pl. Mem. 2–5. Defendant and Harmoni claim that Commerce’s determination was reasonable. See Def. Resp. 18–31; see also Pet. Resp. 2–3. Defendant asserts that Commerce requested information repeatedly regarding Huameng’s contractual expenses, which Commerce believed was necessary to verify Plaintiffs’ claims that the sale was made “on the basis of the terms in the contract and invoice.” See Def. Resp. 20; see also Final IDM at 6; Bona Fide Memo at 5. Defendant argues that Huameng failed to cooperate by not providing information requested for the new shipper review and intentionally obfuscating its sales terms, leading to Commerce’s conclusion that Huameng’s single sale of single-clove garlic was not bona fide. See Def. Resp. 29–30. The issue considered by the court is whether Commerce properly rescinded the new shipper review based on Commerce’s asserted inability to complete the bona fide analysis Court No. 16-00243 Page 8 because of the failure of Huameng and its downstream U.S. customer to provide requested documentation relating to payment of expenses. Commerce found specifically that because Huameng did not provide evidence that identifies the party that actually paid for [the] contractual expenses, the Department cannot definitely determine that the terms of the sales contract and commercial invoice were reported accurately. As a result, the Department continues to find that the lack of proof of payment for these expenses is indicative that the sale was not a bona fide transaction. Final IDM at 6. Commerce requested that Huameng provide documentation showing that its U.S. customer paid for U.S. Customs duties, international freight, and marine insurance, and Huameng failed to provide such documents. See id. Commerce requested “a copy of each type of agreement and all sales-related documentation generated in the sales process (including the purchase order, internal and external order confirmation, invoice, shipping and export documentation, and Customs entry documentation) for a sample sale in the U.S. market during the [period of review].” Response to Section A of Department’s Questionnaire (“SAQR”) Filed on Behalf of Jinxiang Huameng Imp & Exp Co., Ltd. at 15–16, PD 23, bar code 3301651-01 (Sep. 1, 2015). Commerce could not “definitively determine that the terms of the sales contract and commercial invoice were reported accurately,” and found therefore that Huameng failed to “comply fully” with Commerce’s requests. Final IDM at 6. Commerce concluded that the missing proof of payment documentation was indicative of possible “unreported agreements” between Huameng and its U.S. customer to falsely inflate prices “to achieve a zero dumping margin,” and that Huameng’s sales were not bona fide. Id.; see also Bona Fide Memo at 5. The court finds that substantial evidence does not support Commerce’s decision to rescind the new shipper review due to lack of sufficient information to conduct the statutory Court No. 16-00243 Page 9 bona fide analysis. See Haixing Jingmei Chemical Products Sales Co., Ltd. v. United States, 41 CIT __, __, 277 F. Supp. 3d 1375, 1383 (2017) (“Haixing Jingmei”) (noting that “Commerce does not possess subpoena power to require the respondent or any other interested party to respond to information requests,” and therefore must “use facts available to fill any gaps in the record” as intended by Congress). The court in Haixing Jingmei found that Commerce did not have the statutory authority “to rescind the new shipper review due to insufficient information” when the respondent and its downstream customer failed to produce requested information. Id. In this case, Commerce cited a similar lack of sufficient information on downstream sales when it rescinded the new shipper review. The court finds that Commerce should have instead used facts available, with or without an adverse inference, to fill any gaps in the record. Huameng responded to Commerce’s questions regarding the matter and produced some documentation of sales expenses. For example, Huameng provided documentation of various transaction expenses, including ocean freight and related charges. See Response to Supplemental Section A Questionnaire (“SAQR”) Filed on Behalf of Jinxiang Huameng Imp & Exp Co., Ltd. at 3, 7, PD 81, bar code 3453018-01 (Mar. 28, 2016). Commerce did not use the information provided to fill gaps in the record or draw adverse inferences, but rather concluded that the lack of information provided by Huameng and its downstream customer was indicative of a non-bona fide transaction. The court concludes that in light of Commerce’s statutory authority to utilize gap-filling information, Commerce’s decision to rescind the new shipper review due to insufficient information is not supported by substantial evidence. For the foregoing reasons, the court remands this matter to Commerce for redetermination. The remaining arguments raised in the Parties’ briefs are deferred pending the Court No. 16-00243 Page 10 redetermination. The Parties may challenge any relevant remaining issues after Commerce concludes its remand redetermination. CONCLUSION For the reasons stated above, it is hereby ORDERED that the Huameng Rescission is remanded to Commerce for a redetermination of whether Huameng’s subject sale was bona fide as discussed in this opinion; and it is further ORDERED that the following schedule shall govern the remand proceedings: 1. Commerce shall file its remand redetermination on or before November 9, 2018; 2. Commerce shall file the administrative record on remand on or before November 26, 2018; 3. The Parties shall file any comments on the remand redetermination on or before December 12, 2018; 4. The Parties shall file any replies to the comments on or before January 11, 2019; and 5. The joint appendix shall be filed on or before January 18, 2019. /s/ Jennifer Choe-Groves Jennifer Choe-Groves, Judge Dated: September 10, 2018 New York, New York 

462 F.2d 430 UNITED STATES of America, Plaintiff-Appellee,v.William O. PARTEN and Lewis Lynn Whitmire, Defendants-Appellants. No. 71-3201 Summary Calendar.* United States Court of Appeals, Fifth Circuit. June 9, 1972.Rehearing and Rehearing En Banc Denied July 19, 1972. Lee A. Chagra, El Paso, Tex., for defendants-appellants. Seagal V. Wheatley, William S. Sessions, U. S. Attys., Wayne F. Speck, Joel D. Conant, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee. Before BELL, DYER and CLARK, Circuit Judges. DYER, Circuit Judge: 1 This is an appeal from a judgment entered upon a jury conviction of each defendant for knowingly and willfully making and using a false writing and document in violation of 18 U.S.C.A. Sec. 1001. We affirm. 2 The defendants arrived at San Antonio, Texas, aboard a flight from Mexico. Parten used the name William Owen, and Whitmire used the name John David Sharrard on their respective Customs Declarations and both responded in the affirmative when asked if the names used were theirs. The fictitious names were used by the defendants on their airlines passenger tickets and notarized affidavits of residency. Parten had a Florida driver's license in the name of Owens, and Whitmire had an identification card, Social Security card and a pawn ticket in the name of Sharrard. 3 At the time of their arrest the defendants were on probation from a six months' suspended sentence entered upon a misdemeanor conviction in the State of Utah, involving 130 pounds of marihuana. Parten realized that if he went through Customs in San Antonio he would avoid Customs in El Paso where the inspectors knew him. 4 The defendants first contend that the Government's evidence failed to show that their actions were within the purview of 18 U.S.C.A. Sec. 1001. They argue that Customs had no right or power to require defendants to execute form 6059-B absent a purchase in Mexico of over $100.00 of merchandise. Furthermore, they allege that the form was used as a convenience in identifying people and this was not material to Customs. We disagree. 5 It is abundantly clear that the intent of the defendants was to deceive the Customs Service at the border. The defendants did not claim any privilege against placing their names on the Customs declaration forms. They voluntarily did so. But this is no defense to a violation of Sec. 1001. Poonian v. United States, 9 Cir. 1961, 294 F.2d 74. Moreover, their reliance upon the premise which they construct, that Customs should not have inquired of their names, ergo, their false statements were made with impunity, is unfounded for "it cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question that the Government should not have asked. Our legal system provides methods for challenging the Government's right to ask questions-lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood." Bryson v. United States, 1969, 396 U.S. 64, 72, 90 S.Ct. 355, 360, 24 L.Ed.2d 264. 6 We are equally unimpressed with defendants' argument that the declaration was a mere convenience. While U.S. Customs Form 6059-B (signed by the defendants) states on its face that a person may make an oral declaration if foreign purchases were less than $100, every passenger is, nevertheless, asked to sign the declaration not only as a duty form but also for the purpose of identifying the incoming passenger. Customs uses the form as a first line defense to keep contraband and narcotics from entering the United States by identifying suspected or wanted individuals. Since it is impossible to thoroughly search everyone, Customs maintains a wanted list and utilizes a computer system to identify possible suspects. In this case, the computer gave a negative response when the fictitious names of the defendants were fed into it. 7 The defendants next contend that their conduct, however willful, that is, done deliberately and with knowledge, was not material and, since materiality is an essential element of the offense charged, Rolland v. United States, 5 Cir. 1953, 200 F.2d 678, they could not be found guilty. They argue that but for the marihuana found in their luggage it was probable that their true names, had they been known by Customs, would not have been put through the computer. We are unwilling to decide the case on this conjectural possibility. The fact is that the computer was used after the true names of the defendants were learned from interrogation, following the discovery of marihuana, and a "hit" was made on Parten's name. The fact that on this basis alone the defendants could not have been arrested on the spot is of little importance. What may further have been developed by Customs with such knowledge evidences the materiality of the falsifications of defendants' names submitted to Customs. 8 The defendants raise in this Court for the first time a challenge to the validity of the indictments on the ground they fail to allege facts showing in what manner defendants' actions were material to Customs in enforcing the laws of the United States. Suffice it to say that the indictments are sufficient to place the defendants on notice of the charges which they must defend and to plead jeopardy after their conviction should they again be charged with the same or similar offense. See United States v. Bearden, 5 Cir. 1970, 423 F.2d 805, cert. denied 400 U.S. 836, 91 S.Ct. 73, 27 L.Ed.2d 68; James v. United States, 5 Cir. 1939, 416 F.2d 467, cert. denied 397 U.S. 907, 90 S.Ct. 902, 25 L. Ed.2d 87. 9 Finally, it is asserted that it was error for the district court to admit evidence of a prior conviction of both defendants for the possession of 135 pounds of marihuana. Pointing out that "willful," in the statute under which they were prosecuted, means no more than that the forbidden act must be done deliberately and with knowledge but does not require evil intent, McBride v. United States, 5 Cir. 1955, 225 F.2d 249, defendants argue that the convictions could not be introduced as bearing on their intent or motives. We disagree. The prior conviction clearly was admissible to prove the defendants' motive in presenting the false identity and to prove that it was done deliberately and with knowledge. United States v. Dryden, 5 Cir. 1970, 423 F.2d 1175. 10 The other issues raised by the defendants are devoid of merit. 11 Affirmed. 12 ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC PER CURIAM: 13 The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied. * Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I

480 F.2d 631 83 L.R.R.M. (BNA) 2735, 71 Lab.Cas. P 13,780 INTER-POLYMER INDUSTRIES, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent. No. 72-1835. United States Court of Appeals,Ninth Circuit. June 15, 1973. Richard L. Lotts (argued), of Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for petitioner. William Wachter (argued), Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Douglas S. McDowell, NLRB, Washington, D. C.; Wilford Johanson, Director, Region 21, Douglas Olins, Region 21, NLRB, Los Angeles, Cal., for respondent. Before BROWNING and GOODWIN, Circuit Judges, and JAMESON,* District Judge. ALFRED T. GOODWIN, Circuit Judge: 1 An employer petitions to set aside an order of the National Labor Relations Board to reinstate a discharged employee. 2 The Southern California Printing Specialties and Paper Products Union District Council No. 2, International Printing Pressmen and Assistants' Union of North America, A.F.L.-C.I.O., filed charges that Inter-Polymer Industries, Inc., a Los Angeles manufacturer of plastic bags, violated Sec. 8(a)(1), (3), and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (3), and (5) (1970), by discharging Duane Osmus, an employee, for his union activities and by refusing to bargain in good faith with the Union. 3 After extensive hearings the Board found Inter-Polymer guilty of unfair labor practices in refusing to reinstate Osmus, in refusing to bargain in good faith, and in threatening employees for engaging in union activities. The Board ordered Inter-Polymer to cease and desist from designated unfair labor practices, to reinstate Osmus with back pay, and to post compliance notices. The Board's decision and order are reported as 196 NLRB No. 101 (1970). 4 Inter-Polymer's principal contention is that its refusal to reinstate Osmus was justified. The sharply contested issue is whether the NLRB was correct in deciding that Osmus was punished for union activity. 5 In March 1970, Inter-Polymer hired Osmus to perform machinist's work and maintenance tasks. By August 1970, the volume of machinist's work had declined, and Osmus was assigned to a maintenance project requiring overtime work. Osmus asked to be reassigned to machinist work. When his request was denied, he quit. A few days after quitting Osmus indicated his desire to return to work. Inter-Polymer agreed to reinstate him if he would perform ordinary maintenance tasks as well as machinist's work. 6 In October, 1970, the Union became the collective bargaining representative for the plant. Osmus, a member of the employee negotiating committee, wrote a proposal on the assignment of maintenance and machinist work. Osmus's supervisor told him that, because of his membership on the Union negotiating committee, Osmus was "on the company's shit list." 7 In November 1970, Osmus was laid off. Insufficient work in the maintenance department was given as the reason. In December Inter-Polymer recalled Osmus, but told him that he could not expect the bulk of his work to be machinist's work. When Osmus reported to work, he complained about his work assignment. He telephoned the Union's administrative assistant, who suggested he accept any work assignment prescribed, but that he inform Inter-Polymer that he would work only "under protest." Osmus took this advice, and his employers demanded an explanation of "under protest." When Osmus did not explain what he meant, the president of Inter-Polymer warned him not to use "union tactics," and told him he could return to work only if he did not require preconditions. Osmus left the plant, and his union filed the charges. 8 The Trial Examiner and the Board determined that Osmus was laid off in November for bona fide economic reasons. They also found that Osmus, in saying that he would work "under protest," was stating that he was willing to accept general maintenance assignments, but that he would do so unwillingly and with full intent to use the Union to win an assignment to the machine shop, working exclusively as a machinist. However, where the Trial Examiner found that Inter-Polymer had a right to refuse to rehire Osmus on Osmus's conditional terms, the Board concluded otherwise. The Board held that Inter-Polymer violated Section 8(a)(1) of the Act in refusing to reinstate Osmus. 9 While the evidence tends to cut both ways, substantial evidence supports the Board's finding that Inter-Polymer denied Osmus re-employment because he had sought the assistance of his bargaining representative in a dispute with management over work assignments. The Board's order thus vindicates the employee's right to utilize his union in a controversy concerning his work. See, e. g., NLRB v. Victor Otlans Roofing Co., 445 F.2d 299, 300 (9th Cir. 1971). 10 Inter-Polymer also contends that the complaint should have been dismissed because an agent of the NLRB interviewed Inter-Polymer's labor consultant and negotiator, without obtaining the permission of counsel. 11 As in Singer Co. v. NLRB, 429 F.2d 172, 178 (8th Cir. 1970), we need not reach the question whether company counsel must be afforded an opportunity to be present during all investigative interviews of company personnel. Here the Board found that its agent sought and obtained company permission to interview the labor consultant, and that the agent did not exceed the terms of that permission. The Board determined that in the course of being questioned on permissible subjects, the interviewee volunteered the evidence which Inter-Polymer later sought to suppress. We cannot say that the Board's findings in this regard were without a substantial basis in the record. 12 Inter-Polymer's last contention is that the compliance notice which the Board's order requires it to post should be modified to inform the employees of their statutory right to file a decertification petition. Citing NLRB v. Copps Corp., 458 F.2d 1227 (7th Cir. 1972), and NLRB v. Priced-Less Discount Foods, Inc., 407 F.2d 1325 (6th Cir. 1969), Inter-Polymer maintains that decertification notice is necessary, because, inter alia, the employees have signed an anti-union petition. In making this contention, the company overlooks the fact that the union here, unlike those in Copps and Priced-Less, had won a Board election and was certified as the employees' bargaining representative. Absent "unusual circumstances," an employer must bargain with the certified representative of the employees during the "certification year" even if the union has lost its majority status through no fault of the employer. E. g., Brooks v. NLRB, 348 U.S. 96, 103-104, 75 S.Ct. 176, 99 L.Ed. 125 (1954); NLRB v. Keystone Valve Corp., 449 F.2d 1253, 1256-1259 (5th Cir. 1971); NLRB v. Holly-General Co., 305 F.2d 670, 675 (9th Cir. 1962). 13 The petition to set aside the order of the NLRB is denied. * The Honorable William J. Jameson, United States District Judge for the District of Montana, sitting by designation

92 U.S. 176 (____) BAKER ET AL., ASSIGNEES, v. WHITE. Supreme Court of United States. Mr. Charles E. Perkins for the plaintiff in error. Mr. A.P. Hyde, contra. MR. JUSTICE MILLER delivered the opinion of the court. The Odorless Rubber Company, being in an embarrassed condition, undertook to relieve itself by obtaining additional subscriptions to its capital stock. It was conceived, that, in order to do this, it was necessary that those holding the existing stock should submit to a reduction of its par value, as it was not really worth par at that time; and new subscribers could not be expected to take a stock which they knew to be below the value they were to pay for it. Accordingly, on the 10th June, 1872, at a meeting of the stockholders, "on motion of S.L. Warner, it was voted, that whereas the capital stock of this company now issued, and the assets of the same, have become impaired to the extent of thirty per cent on the whole amount of said stock, — to wit, the sum of $72,000.50, — therefore voted, that stock to the amount of $72,112.50 be called in and cancelled upon the books of this company." At a former meeting it had been resolved that the capital stock of the company be increased to $200,000, or eight thousand shares. The defendant, after these resolutions had been adopted, signed the following instrument, and set opposite his name two hundred and forty, as the number of new shares for which he subscribed:— "We, the undersigned, hereby agree to take the number of shares of the capital stock of the Odorless Rubber Company placed opposite our respective names, and pay for the same as follows; to wit, $6.25 per share whenever cash subscriptions to the amount of $118,000 shall have been made, and the balance in equal monthly instalments of ten per cent each from the date of June 1, A.D. 1872. Said stock *177 to be fully paid whenever eighty-five per cent of the par value shall have been paid into the treasury of the company; it being understood that none of said subscriptions shall be valid or obligatory until at least said amount of $118,000 of stock shall have been subscribed as aforesaid, and that thirty per cent deduction is made on the old stock of this company, as per vote of stockholders June 10, 1872. "Dated at Middletown, this tenth day of June, 1872." He was elected a director, and acted as such for a short time, and paid his instalments regularly until he had paid $2,700. He then refused to pay any more; and, the corporation having been adjudged bankrupt, the plaintiffs, as assignees, brought the present suit to recover the unpaid instalments, amounting to $3,300. Two defences were relied on by defendant: 1. That one of the conditions on which he agreed to pay was that thirty per cent of the old stock was to be deducted or extinguished, and this had not been done. 2. That the subscriptions had been obtained by fraudulent representations as to the condition of the company; that the whole proceeding was a fraudulent design to relieve the old stockholders of a broken corporation at the expense of the new subscribers; and that, as soon as he had learned enough of the condition of the company to become aware of this fraud, he abandoned the concern, and repudiated the contract. This suit was brought in the District Court; and the judge of that court refused to charge the jury, when requested, that in the true construction of the subscription-paper, above quoted in full, the subscription was not obligatory until the thirty per cent reduction of old stock had been made, and also rejected evidence of the fraud in obtaining the defendant's subscription. On a writ of error to the Circuit Court, where these matters were shown by a bill of exceptions taken in the District Court, the judgment of that court was reversed. The Circuit Court rested its judgment on the construction of the subscription-paper; and as that is sufficient to dispose of the case, and as we concur in the view taken by that court, we shall only consider that question. The counsel for plaintiffs in error construed the paper as if it read thus:— *178 "It being understood that none of the subscriptions shall be valid or obligatory until at least said amount of $118,000 of stock shall have been subscribed as aforesaid, and it being also understood that thirty per cent deduction is made on the old stock of this company, as per vote of stockholders June 10, 1872. "Dated Middletown, the tenth day of June, 1872." Reading it thus, they argue that the last clause, relating to the thirty per cent deduction, is only a representation of what was understood to be an existing fact at the time it was made, and not a condition like the one as to the amount of stock to be taken, without which the subscription was not obligatory. It is possible so to construe the language of the instrument, if the surrounding circumstances demanded it. But to one who saw the paper for the first time, and knew nothing more, it would seem a forced, and not a natural, construction. If the word "that" just before "thirty per cent" were omitted in the original, the plain grammatical meaning would be, that the subscriptions were only obligatory in case the $118,000 of stock was subscribed, and the thirty per cent of the old stock called in or deducted. We cannot give to the use of the word "that" such force as to destroy the natural and reasonable meaning which the sentence would have without it. But when, leaving grammatical and verbal criticism, we look to the admitted surrounding circumstances of the case, what was meant is quite clear. The paper bears the same date as the resolution to reduce the stock. That resolution did not profess to have the effect of reducing the stock of itself, but only declared that $72,112.50 of said stock be called in, — a thing to be done in future; and the bill of exceptions shows that the directors accordingly made an effort to get the stockholders to surrender and cancel stock to that amount, but failed to get it done. When a subscriber put his name to the agreement to take new stock, the obtaining of the $118,000, on which his subscription depended for its validity, was a thing to be accomplished in the future: and so, on the tenth day of June, — the date of this paper, — a subscriber, looking to these two things promised, but yet to be performed, said, "I subscribe, but it is *179 upon condition that I am only to be liable when they are performed; that is, when $118,000 new stock is subscribed, and when thirty per cent of the old stock is called in and cancelled, as per resolution of the company of this date." We are of opinion that the Circuit Court properly construed this instrument; and, as it is not proved or asserted that this stock ever was so reduced, the defendant was not liable on that contract. But, when we come to look for the judgment of the Circuit Court which should be affirmed on these considerations, we find that there was in that court no final judgment. There exists in the record only an order reversing the judgment of the District Court. But, supposing a more formal entry to have been made, it could only be that the judgment and verdict in the District Court be set aside, and a new trial awarded. We have so repeatedly decided that such an order as this is not a final judgment from which a writ of error lies to this court, that it needs no further discussion. Parcels v. Johnson, 20 Wall. 653; Macomb v. Commissioners of Knox County, 91 U.S. 1. But the case was fully argued by counsel on the merits. The court, in conference, came to the conclusion (which was unanimous) indicated in this opinion; and we have concluded to let the opinion accompany the only judgment which we can render on this record. Writ of error dismissed.

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-0140V Filed: June 16, 2015 Unpublished **************************** VIRGINIA IVES, * * Petitioner, * Ruling on Entitlement; Concession; v. * Influenza or Flu Vaccine; Shoulder * Injury Related to Vaccine Administration SECRETARY OF HEALTH * (“SIRVA”); Special Processing Unit AND HUMAN SERVICES, * (“SPU”) * Respondent. * * **************************** Jeffrey S. Pop, Esq., Jeffrey S. Pop, Attorney at Law, Beverly Hills, CA, for petitioner. Christine M. Becer, Esq., U.S. Department of Justice, Washington, DC for respondent. RULING ON ENTITLEMENT1 Vowell, Chief Special Master: On February 11, 2015, Virginia Ives filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 [the “Vaccine Act” or “Program”]. Petitioner alleges that she suffered a shoulder injury caused by the influenza vaccine she received on September 23, 2013. Petition at 1. Petitioner also alleges that her injuries lasted more than six months and that she continues to suffer the residual effects of her injury. Id., ¶ 18. The case was assigned to the Special Processing Unit of the Office of Special Masters. On June 15, 2015, respondent filed her Rule 4(c) report in which she “recommends that compensation be awarded in this case.” Respondent’s Rule 4(c) Report at 1. Specifically, respondent “has concluded that a preponderance of evidence establishes that the injury to petitioner’s right shoulder was caused-in-fact by the 1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I intend to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2006). administration of her September 24, 2013, flu vaccine, and that petitioner’s injury is not due to factors unrelated to the administration of the flu vaccine.” Id. at 3. Furthermore, respondent agrees that petitioner’s injury lasted for more than six months. Id. In view of respondent’s concession and the evidence before me, I find that petitioner is entitled to compensation. s/Denise K. Vowell Denise K. Vowell Chief Special Master 2 

419 S.W.2d 686 (1967) Jewel Fay BELL et al., Appellants, v. W. W. FORE et al., Appellees. No. 7817. Court of Civil Appeals of Texas, Texarkana. September 12, 1967. Rehearing Denied October 10, 1967. *687 Harry Friedman, Harkness, Friedman & Kusin, Sidney Lee, Texarkana, for appellant. Stephen Oden, Bun L. Hutchinson, Atchley, Russell, Hutchinson & Waldrop, Texarkana, Jack N. Price, Atkinson & Price, Longview, for appellee. *688 FANNING, Justice. This is a suit for damages for the deaths of William Payton, Jr., and John Homer Bell, and for personal injuries received by Frank T. Bransford. A take nothing judgment was rendered by the trial court. The judgment of the trial court is affirmed. STATEMENT OF THE CASE Bill Purdy's store is located on the south side of U. S. Highway No. 67 and about five miles west of Texarkana in Bowie County, Texas. Defendant Addie Campbell, sometimes called Addie Campbell Sharp, stopped at this store about 6:00 p. m. of Saturday, November 14, 1964, to purchase some supplies. At this time, a light rain was falling. After defendant Campbell had completed her purchases, she drove her pickup truck back onto the roadway of the highway and was proceeding in a westerly direction toward her home when a motor vehicle, being driven by defendant Marshall and pulling a trailer containing a horse, struck her motor vehicle in the rear. The trailer containing the horse thereupon overturned and came to a stop on the roadway of the highway. Shortly thereafter, while William Payton, Jr., appellant Estella Payton's husband, and others were attempting to remove the trailer and the horse in it from the roadway, another motor vehicle being driven by W. W. Fore westward along the highway struck the trailer, and thereby William Payton, Jr., and John Homer Bell sustained personal injuries of which both died, Payton on February, 26 1965, and Bell immediately. Also injured, but not fatally, were Bill Purdy and Frank T. Bransford, who, together with Bell and Payton were also trying to remove the trailer from the roadway and thereby to "prevent a serious accident". Thereafter, appellant Jewel Fay Bell filed suit individually and as next friend for the minor children of herself and decedent John Homer Bell against W. W. Fore and Myrtle Fore, his wife, who was riding with Fore as a passenger in the Fore motor vehicle at the time of the collision, Thomas J. Marshall, Addie Campbell Sharp, and Ed Sharp, the husband of appellee Addie Campbell Sharp, to recover damages for the wrongful death of John Homer Bell. Appellant Frank T. Bransford intervened in the suit filed by appellant Jewel Fay Bell and sought recovery of damages from the same defendants for his personal injuries. Appellant Estella Payton and five of her adult children, such children being joined by their husbands and wives, also filed suit against Woodrow W. Fore, Myrtle Fore, and Addie Campbell Sharp, Ed Sharp, and Thomas J. Marshall seeking to recover damages for the wrongful death of William Payton, Jr. Thereafter all plaintiffs in both suits moved for and were granted non-suits against W. W. Fore and Myrtle Fore, but the Fores continued as parties in the two suits at the instance of the defendants who sought contribution from the Fores in the event recovery should be made against them. Since the two suits involved common questions of law and fact, they were consolidated for the trial which was to a jury. The trial judge signed a judgment for the appellees upon the jury's verdict and in accordance with the appellees' prayers. Estella Payton, Jewel Fay Bell and other plaintiffs Bell and intervenor Frank Bransford have appealed. The verdict of the jury found Mrs. Sharp guilty of certain acts of negligence proximately causing the first collision in question, absolved the defendant Marshall from any acts of negligence proximately causing the first collision in question, found the defendant W. W. Fore guilty of several acts of negligence proximately causing the second collision and the injuries to John Homer Bell, William Payton, Jr., and Frank T. Bransford, found that the way and manner in which W. W. Fore was driving his vehicle immediately before the second collision was a new, independent and intervening cause of such second collision, found that John Homer Bell, William Payton, Jr., and *689 Frank T. Bransford assumed the risk of a dangerous condition existing upon the roadway and knew and appreciated the nature and extent of the danger attendant to assisting in the removal of the trailer from the roadway and voluntarily exposed themselves to such danger immediately before the second collision, and found that at the time of the second collision John Homer Bell, William Payton, Jr., and Frank T. Bransford were attempting to rescue W. W. Fore and his vehicle from danger, and were attempting to rescue and remove from danger the participants in the first collision. The trial court in its judgment, after reciting the various findings of the jury, stated in part as follows: "The verdict was duly received by the Court as the verdict of the jury and the Court having considered the verdict, in which the jury found the Defendant Thomas Jerry Marshall free from any negligence causing the first collision in question in this suit, but found the Defendant Addie Campbell Sharp guilty of certain acts of negligence proximately causing the first collision in question, but there being no finding of any act of negligence on the part of the Defendant Addie Campbell Sharp proximately causing the second collision or the injuries or damages to the Plaintiffs Bell and Plaintiffs Payton, or Intervenor Bransford, and the jury further finding the deceased Bell and deceased Payton and Intervenor Bransford guilty of assumption of risk and voluntary exposure to a known and appreciated danger immediately prior to the second collision in question, and further finding several acts of negligence on the part of the Defendant W. W. Fore proximately causing the second collision in question and that the acts of negligence on the part of W. W. Fore were a new and intervening and independent cause of the second collision which caused the injuries and damages complained of by the Plaintiffs Bell and Plaintiffs Payton and Intervenor Bransford, and also finding that immediately prior to the second collision the deceased Bell and deceased Payton and Intervenor Bransford were undertaking to rescue the Defendant W. W. Fore as well as the participants in the first collision, the Court is of the opinion that judgment should be rendered that all Plaintiffs take nothing; the Plaintiffs Bell, Payton and Intervenor Bransford should take nothing because the Court is of the opinion that the acts of negligence on the part of the Defendant Addie Campbell Sharp which contributed to cause the first collision in question were but passive acts and were not continuing active causes of the second collision in question, but the negligence of the Defendant W. W. Fore was the primary and active cause of the second collision in question, and if the Court be mistaken in this as a matter of law, then the jury has so found by its verdict and its answers to the special issues submitted; additionally, Plaintiffs Bell and Payton and the Intervenor Bransford should take nothing because the rescue doctrine does not apply as a matter of law, and the deceased Bell and deceased Payton and Intervenor Bransford voluntarily exposed themselves to the risks and danger which was known and appreciated prior to the second collision, but if the Court be mistaken and the rescue doctrine does apply, then by virtue of the specific findings of negligence on the part of those whom the deceased Bell and Payton and Intervenor Bransford were purportedly undertaking to rescue, said Plaintiffs Bell, Payton and Intervenor Bransford are barred from recovery by imputed negligence." Appellant Estella Payton presents 79 points on appeal. Appellants Bell and appellant Bransford present 55 points on appeal. Having concluded that the trial court rendered a correct judgment we will write upon what we deem to be the controlling reasons why the judgment of the trial court should be affirmed. *690 QUESTION OF LIABILITY OF ADDIE CAMPBELL SHARP The trial court refused to submit requested issues of plaintiffs inquiring as to whether certain acts on the part of defendant Addie Campbell Sharp were negligence and proximate causes of the deaths of Bell and Payton and of the injuries received by Bransford. Appellants assign as error the failure of the trial court to submit such issues of negligence and proximate cause, contending that issues of fact were raised warranting the submission of such issues. Appellants also contend to the effect that the jury's finding to special issue No. 19 to the effect that the manner and way of W. W. Fore's driving was a new, independent and intervening cause of the second collision should not be allowed to stand because the undisputed evidence showed that the way and manner in which W. W. Fore was driving his motor vehicle was not a new, independent and intervening cause of the second collision, but, at most was only a concuring or cooperating cause thereof. Among the authorities cited by appellants on the concept of concurrent negligence are the following: Texas Power and Light Co. v. Holder, 385 S.W.2d 873 (Tex.Civ.App. 1964, Affirmed per curiam 393 S.W.2d 821); McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442 (1941); Reeves v. Tittle, 129 S.W.2d 364 (Tex.Civ.App. 1939, writ ref'd); Williams v. Rodocker, 84 S.W.2d 556 (Tex.Civ.App.1935, no writ); Torts Restatement, Vol. 2, p. 1184, § 439; Gulf, C. & S. F. Ry. Co. v. Ballew, 66 S.W.2d 659 (Comm.App.1933); Robert R. Walker, Inc. v. Burgdorf, 244 S.W.2d 506 (Sup.Ct.1951); Texas Public Service v. Armstrong, 37 S.W.2d 294 (Tex.Civ.App. 1931, writ ref'd); and Baker v. Corse, 120 S.W.2d 817 (Tex.Civ.App.1938, writ dism.). It is the view of appellee Campbell that not only was the answer of the jury to special issue No. 19 warranted and required by the evidence, but that the trial court, although nothing the jury's answer to issue 19, correctly held as a matter of law under the undisputed evidence that no negligent act of Addie Campbell Sharp was a proximate cause of the second collision and the deaths of the two men and injuries to the other man. Proximate cause "embraces at least two distinct concepts, both of which must be present: (1) there must be a cause in fact,—a cause which produces an event and without which the events would not have occurred; and (2) foreseeability." Baumler v. Hazlewood, 162 Tex. 361, 347 S.W.2d 560 (1961). There were two collisions. Mrs. Addie Campbell Sharp was involved in the first collision and after it she was no longer directly involved as a participant. At the time of the second collision her vehicle was clear of the roadway and was not causing an obstruction. The horse trailer attached to the rear of the Marshall vehicle was partially obstructing the lane of travel for west bound traffic. W. W. Fore at a high rate of speed, disregarding signals of warning, failing to keep a proper lookout and being negligent in various particulars, negligently caused the second collision resulting in the deaths of Payton and Bell and the injuries to Bransford. (As we view the record, Fore's negligence was almost to the point of being wanton). The trial court by its judgment found, in effect, that the condition resulting as the aftermath of the first collision was not a concurrent cause, but simply a condition which made the second collision possible. This was tantamount to holding as a matter of law that the way and manner in which Fore operated his vehicle was a new, independent and intervening cause of the second collision, which is also in accord with the jury's finding to special issue 19. The trial court, while taking cognizance of the jury's finding to special issue 19, further concluded as a matter of law that none of the actions of Addie Campbell Sharp could be a proximate cause of the second collision under the undisputed evidence in the case. *691 Causal connection must be established beyond conjecture. Bowles v. Bourdon, Tex., 219 S.W.2d 779 (1949); Hopson v. Gulf Oil Corporation, 150 Tex. 1, 237 S.W.2d 352 (1951). In this case, Mrs. Campbell would have been required to foresee, from her act of pulling onto the highway in front of Purdy's Store as the jury found, without keeping a proper lookout, that: (1) she would be struck from the rear by a vehicle pulling a trailer, (2) that the trailer would come unhitched from the other vehicle and obstruct the highway and be difficult to remove therefrom, (3) that persons would attempt to remove the trailer from the highway, and (4) that a driver of another vehicle (who may have been drinking), would negligently ignore a flagman's signal and drive directly into the trailer, injuring and killing those attempting to remove the trailer. A prior or remote cause cannot be made the basis for an action for damages if it does nothing more than furnish the condition or give rise to the occasion which makes the injury possible, if such injury is the result of some other cause which reasonable minds would not have anticipated, even though the injury would not have occurred but for such condition. Phoenix Refining Co. v. Tipps, Comm.App., 125 Tex. 69, 81 S.W.2d 60 (1935); Baughn v. Platt, Comm.App., 123 Tex. 486, 72 S.W.2d 580 (1934). In Baughn v. Platt, supra, the act of an ice company in tying ice on a running board of a customer's vehicle was held to be too remote to be the proximate cause of the injuries to a pedestrian when the block of ice came loose and struck him, though the ice company employee created the condition which resulted in the injury. Such condition simply made the injury possible and the manner in which the customer drove was the direct producing cause and thereby became an intervening cause as a matter of law. In Bruce v. Denton County Electric Coop., Inc., Texas Civ.App., 377 S.W.2d 722, wr. ref., n. r. e. (1964), it was held that the negligence of an electric company in having its lines too low was a prior or remote cause for which recovery could not be had where the building of a barn under the line and the act of a construction worker coming into contact with the line was not reasonably foreseeable. In Watkins v. Davis, Tex.Civ.App., 308 S.W.2d 906, wr. ref., n. r. e. (1958), it was held that the failure to have a concrete curb in front of a drive-in store was not a proximate cause of damages resulting when a truck of a third party rolled into the store and injured a customer and the store was held not liable. In Moody v. Clark, Tex.Civ.App., 266 S.W.2d 907, wr. ref., n. r. e. (1954), it was held that the negligence of a defendant in allowing debris, lumber, etc., to pile up on a sidewalk and in front of a store was not a concurring cause of damages resulting when an automobile, using the debris and lumber as a rampway, went over the curb into a store front, striking and injuring a pedestrian on the sidewalk in front of the store. It is our view that the negligence of Mrs. Addie Campbell Sharp in proximately causing the first collision was not a "cause in fact" of the second collision, and was not concurrent negligence in causing the second collision, but was merely a prior remote condition which made the second collision possible. It is our further view that the trial court correctly concluded as a matter of law that the manner in which W. W. Fore negligently drove his automobile in proximately causing the second collision was a "new, independent and intervening cause", which precluded any finding that the negligence of Mrs. Addie Campbell Sharp in causing the first collision was in any way a proximate cause of the second collision. *692 It is our further view there was no evidence of probative force to support a finding that Mrs. Addie Campbell Sharp could have foreseen that the injuries resulting from the second collision would result from her negligence in the first collision. In this connection see the following authorities: Texas & Pacific Railway Co. v. Bigham, 90 Tex. 223, 38 S.W. 162 (1896); City of Dallas v. Maxwell, Tex.Comm.App., 248 S.W. 667, 27 A.L.R. 927 (1923); Missouri-Kansas-Texas Ry. Co. of Texas v. McLain, 133 Tex. 484, 126 S.W.2d 474 (1939); Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). In Genell, Inc. v. Flynn, supra, it was held that it could not be reasonably foreseen that the negligence in maintaining an improper door adjustment would cause a young girl to accidentally thrust her arm through the glass portion of the door and injure herself. In Texas & Pacific Ry. Co. v. Bigham, supra, it was stated: "[N]othing short of prophetic ken could have anticipated the happening of the combination of events which resulted in the injury of the person of the plaintiff". We hold that the trial court correctly held as a matter of law that the negligence of Mrs. Addie Campbell Sharp in causing the first collision was not a proximate cause of the second collision and the injuries resulting therefrom. QUESTION OF LIABILITY OF MARSHALL The jury failed to convict the defendant Marshall of any negligence proximately causing the accident in question. The jury further found that the negligence of the defendant Addie Campbell Sharp was the sole cause of the first collision. The jury further found that defendant Marshall was in an emergency and that he did all that an ordinary and prudent person would have done under the same or similar circumstances. The jury also found that the manner in which defendant W. W. Fore was driving his vehicle immediately before the second collision was a new, independent and intervening cause of the second collision. We have carefully examined the entire record in the cause and find that such findings of the jury are supported by evidence of probative force, that the evidence to support such findings is amply sufficient, and that such findings are not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellants' points complaining of such findings are overruled. The above findings absolve defendant-appellee Marshall of negligence proximately causing the accident sued upon and under such findings defendant-appellee Marshall was entitled to the judgment discharging him from liability. Appellants' contentions to the effect that the trial court erred in refusing to submit certain requested special issues to the jury inquiring as to whether Marshall was guilty of negligence in various manners and whether each was a proximate cause of the second collision and resulting injuries therefrom have been considered and are overruled. We think the trial court fairly submitted the controlling issues raised by the pleadings and evidence and was not required to submit other and various phases and different shades of the issues submitted. Furthermore, even if the jury had found Marshall guilty of negligence proximately causing the second collision and resulting deaths and injuries, it is our view that such findings would not warrant a judgment for any of the appellants under the undisputed evidence in this case, and that Marshall would have been entitled to judgment as a matter of law, because there would have been no evidence of probative force to support any finding of proximate cause under the authorities cited hereinbefore with respect to the question of liability of Addie Campbell Sharp. We hold that the trial court correctly rendered a take nothing judgment in favor of defendant Marshall. *693 CONCLUSION We have carefully considered the numerous other points urged by appellants and are of the opinion that none of them present reversible error under the record in this cause. Finding that the trial court entered a correct judgment under the record in this cause, the judgment of the trial court is affirmed.

224 N.W.2d 770 (1975) 192 Neb. 831 Walter J. MEYER et al., Appellees, Cross-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellant, Cross-Appellee, Impleaded with Raymond W. Foreman et al., Appellees, Cross-Appellees and Roscoe Hill Hatchery, Inc., et al., Appellees, Cross-Appellees. No. 39492. Supreme Court of Nebraska. January 2, 1975. *771 Ray C. Simmons, Fremont, for appellant, cross-appellee. Barlow, Watson & Johnson, Lincoln, for Walter J. Meyer and others. Mattson, Ricketts, Davies, Stewart & Calkins, Lincoln, for Raymond W. Foreman and others. Knudsen, Berkheimer, Endacott & Beam, Lincoln, for Roscoe Hill Hatchery, Inc. Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ. SPENCER, Justice. Appellant, State Farm Mutual Automobile Insurance Company, appeals from a declaratory judgment finding that appellee Walter J. Meyer was an employee of his son, appellee Warren Meyer, State Farm's insured, under a work arrangement agreement. We reverse. The accident which gave rise to this litigation arose during the operation of a farm tractor on a highway in Seward County, Nebraska. The issue presented is whether or not at the time of that accident Walter J. Meyer was an employee of his son Warren Meyer within the terms of the following provision of a State Farm policy: "Insured—means * * * (5) under cover AF, any employee of an insured with respect to agricultural vehicles and implements while engaged in his employment by an insured." The father and son, along with two neighbors, Eicher and Schmidt, had been involved for several years in what has been characterized as a "work exchange" program in which each of the parties aided with particular tasks on the farms of each of the others. Warren was putting up hay on his own land with the assistance of his father and two neighbors. Warren supplied a tractor, rake, and baler. Eicher brought a tractor and started raking the hay. Warren followed with his baler. When Walter and Schmidt arrived, they were informed that another tractor and trailer were required in addition to the trailer in the field. At Warren's suggestion Walter and Schmidt left in Schmidt's car to get Walter's tractor and Schmidt's trailer. After attaching the trailer to the tractor, Schmidt *772 returned to the hay field in his car and Walter started back pulling the trailer with the tractor. On the trip to Warren's hay field, and before he reached it, Walter was involved in an accident in which Raymond W. Foreman was injured. Foreman brought an action against Walter. Walter and Warren each carried liability policies of $25,000 with State Farm. Coverage under Walter's policy was admitted. This action was brought to determine coverage for the father, Walter, under Warren's policy. Warren testified that when the three others came over to his farm, he decided what equipment the other three would bring and when they would start baling hay. He also decided where to put the hay. It was the practice that whoever owned the hay to be cut would be the person to give the orders, and it was the understanding among the parties that the owner of the land gave the directions. Schmidt testified that the four of them never discussed the particular legal relation between them in exchanging labor operations. They never discussed whether they were employers or employees. They just helped each other out and didn't discuss anything along those lines. They were neighbors and they had to get along and needed each other's help. It was a neighborly and Christianly thing to do, and that was at least part of the basis of their exchange of work among themselves. When he worked on the farms of the other three in these exchange of labor operations, he did not consider himself their employee, and when they worked on his farm he did not consider himself their employer. When he went over and helped Warren with his haying operation he expected Warren to come back later and help him with his. That was the agreement. He traded his services for Warren's services. The parties to this appeal agree that this case presents one of first impression in Nebraska. Appellant asserts it is a case of first impression nationally. Appellees, however, claim that similar facts have been found to support a finding of an employer-employee relationship on two occasions in Iowa: Ganzhorn v. Reep (1943), 234 Iowa 495, 12 N.W.2d 154, and Erickson v. Erickson (1959), 250 Iowa 491, 94 N.W.2d 728. Ganzhorn v. Reep, supra, involved an action between two neighboring farmers for injuries resulting from an automobile accident. Defendant had called plaintiff and asked him for assistance in fixing a broken pump. After working for a time, defendant determined it was necessary to go to town for additional equipment. Defendant asked plaintiff to ride with him since nothing more could be done until he returned. On the ride to town the accident occurred. The record indicates that for several years plaintiff and defendant had exchanged work with each other. No money ever changed hands and no accounting of time took place. The trial court submitted the question of master-servant relationship to the jury and the jury returned a verdict for the plaintiff, which was affirmed. In Erickson v. Erickson, supra, the plaintiff and defendant were brothers. They had exchanged work over the years, had kept accounts of time spent, and made cash payments to settle any imbalance. Plaintiff had been called to do chores for defendant while he was away. In performing those chores plaintiff was injured while working with certain machinery owned by defendant. The trial court, sitting without a jury, found an employer-employee relationship existed. The judgment for the plaintiff was affirmed. In Patty v. State Farm Mut. Auto. Ins. Co. (1955), 228 F.2d 363, the United States Court of Appeals for the Sixth Circuit held the practice of swapping work does not as a matter of law constitute employment. A judgment for the insurer was reversed to determine whether the agreement of the insured to pay for new parts for the mower was by way of compensation to the plaintiff, or to make the mower fit for operation. *773 St. Aubyn v. Thogmartin (1970), 206 Kan. 62, 476 P.2d 248, involved the definition of "employee" within an employee-exclusionary clause of an insurance policy. The driver of a newspaper delivery truck brought a third-party action against the insurer for a declaratory judgment, alleging that the insurer was obligated to defend him and pay within policy limits any judgment obtained against him by a newsboy who was injured in a collision while throwing newspapers from the truck. The Kansas Supreme Court determined that the driver, who was an old friend of the truck owner, had volunteered to drive the truck for the owner without any agreement for compensation, while the owner went on a hunting trip. The court held the subsequent payment of $5 was a gratuity and sustained a finding that the driver was not an employee within the exclusionary clause of the owner's policy. In Bean v. Gibbens (1954), 175 Kan. 639, 265 P.2d 1023, a neighbor boy was killed while guiding insured's truck which was being towed into town. Nothing was said about pay, and no pay was offered. The Kansas Supreme Court held the boy was not an employee within a clause of a liability policy excluding coverage of employees of the insured. Kentucky Farm Bureau Mut. Ins. Co. v. Snell (Ky.App., 1958), 319 S.W.2d 462, involved a member of a group of neighbors who voluntarily helped each other in harvesting their tobacco crops, keeping track of the hours worked, and agreeing to make up any difference in amount of work performed by payment of an agreed amount. The trial court submitted to the jury the question of control of the neighbor while working. The jury found against the plaintiff. The Kentucky Court of Appeals affirmed, holding the injured man was not an employee of the neighbor owning the truck upon which the accident occurred. Usually any labor supplied by a father to a son is presumed to be gratuitous. See cases collected on this point in Annotation, 7 A.L.R.2d at p. 88. The presumption of gratuity, however, with respect to the services of a parent is a rebuttable one. It may be overcome by proof of an express contract regarding compensation or of such facts and circumstances as show an understanding of the parties that payment was to be made. In the absence of such proof, recovery will be denied. Houser v. Houser (1965), 178 Neb. 401, 133 N.W.2d 618. Warren could not recall any cash payments with any of the other three parties when the four exchanged labor. If somebody felt he was on the short end at the close of the year, there would be a settlement of some kind. This was usually balanced, however, by supplying more labor and machinery. The exchange of work was apparently taken for granted, as the record does not reveal any specific promises regarding it. Warren testified that he and his father, in addition to the trading of labor with the other two men in haying operations, traded other labor and equipment between themselves. Much of their equipment was owned jointly. They exchanged considerable labor and equipment at harvest time and generally quite a bit at ground preparation time. Warren was farming about 400 acres, his father about 160. Warren testified he thought their work averaged out because he did the fertilizing for his father and also did his baling and his planting. It is undisputed the father was to get some benefit out of the hay that was being harvested from the son's field. The father had no native hay. At the time of the accident he was doing some feeding. The hay being harvested from the son's field was to be taken to the father's barn for storage even though the son had a barn on his own farm. When the son was asked whether there was any reason his father had not used Schmidt's tractor, he answered: "`Well, there was really no reason to use his (Schmidt's) tractor, he was getting, *774 or going to get no benefit out of the, out of that particular hay.'" The son conceded that although he owned the hay his father was benefited by it in that "It was there if he needed it." He testified his father did use some of the hay. Another reason the son gave for using his father's tractor was that he and his father always exchanged help and machinery. The relationship of master and servant is a contractual relationship. Barton v. Hobbs (1967), 181 Neb. 763, 151 N.W.2d 331. We there held: "The contract under which service is performed and the performance thereunder determine the relationship between the contracting parties." Ordinarily, such a contract requires a consideration. See 53 Am.Jur.2d, Master and Servant, s. 18, p. 95. The exchange of work could meet this requirement for the other two parties involved. An exchange of work arrangement between a father and son, however, poses a different question because of the presumption that such services are generally considered to be gratuitous. In the case of the ordinary master and servant arrangement, we have announced the following rule: "The right of control, or want of it, determines if the relation of master and servant, at the particular time in question, existed between the employee and his general employer, * * *." Kessler v. Bates & Rogers Constr. Co. (1951), 155 Neb. 40, 50 N.W.2d 553. In determining whether an individual is a servant as distinguished from an independent contractor, the basic test is whether or not his physical conduct in the performance of the service is controlled or subject to the right of control. A pertinent question in this respect is whether under the arrangement the workman only possesses the same independence that employees in general enjoy. See Sandrock v. Taylor (1970), 185 Neb. 106, 174 N.W.2d 186. The facts of each particular case must be considered in determining whether a master and servant relationship exists. Premised upon the test as to whether the participants in the work exchange agreement only possessed the same independence that employees in general enjoy, we would determine them to be independent contractors. It is evident from the record they had more independence than employees in general. While the owner of the premises told the other participants what he wanted done, he did not tell them how they had to do it. They did it their own way without instruction or control from him. Appellees premise their action herein on their claim that the son controlled the haying operation so that the father and the other two men were employees. The son decided when he thought his hay was dry enough to be cut and baled; what equipment was needed and to be used in the haying operation; what work was to be done, and who was to do it; and where the hay was to be taken. Appellant, however, points out that these matters simply control the result of the work and that such control does not change the workmen from independent contractors to employees. Appellant argues the when, what, who, or where was not controlling the manner of the work. Appellant suggests this is illustrated by the answer to the following question asked Mr. Schmidt: "And you told these fellows how to do it?" to which he gave the answer: "They know how to do it. I told them what I wanted done and so forth." In this case there was no agreement de facto or otherwise for close supervision of the work. The men were all farmers with expert knowledge of the work at hand, and proceeded accordingly. The work was of a semi-skilled nature. Some of the tools and equipment were supplied by the alleged servants. They received no pay, only helped at short intervals and without regular hours, in a specific area, in connection with the regular farming business of Warren. The record does not indicate that the farmers exchanging labor regarded themselves as servants or employees. Actually, the record indicates otherwise, as indicated by *775 the testimony of Schmidt set out heretofore. A pertinent question, if we regard the present circumstances as establishing a master and servant relationship, is when did it actually commence? Can it be said that its inception occurred when the four men involved met for coffee in the morning and decided to put up the hay that afternoon? Or, when Walter, Eicher, and Schmidt left their own farms enroute to Warren's; or upon arrival; or upon commencing work? It would have to be conceded that the latter is the only possibility. As to Walter, he had never commenced work, but instead left the field at once to get his tractor. It was his own tractor, over which he had exclusive control, which he was operating at the time of the accident. The accident occurred before he reached the place where the tractor was to be used. In this respect, the case before us is definitely different from the situations found in the two Iowa cases relied upon by appellees. In Ganzhorn v. Reep, supra, the injured party was riding in the defendant's automobile enroute to the place where he was to assist the defendant. In Erickson v. Erickson, supra, the injured party was working on defendant's farm with defendant's machinery. Appellees concede that while Schmidt was driving his car to take Walter to get his tractor he was not under Warren's control. They further concede that while the father was operating the tractor from his farm to the Schmidt farm to get the Schmidt trailer, and while he was bringing the tractor and the trailer to the hay field, he was not under the son's control. They contend, however, that the father was doing what the son asked him to do, and in doing so, he was under Warren's direction. Warren and his father exchanged help and machinery in addition to the four-member exchange with Eicher and Schmidt before the date of the accident. Warren did not charge his father for the work that he did for him. He and his father were not partners but did own machinery together and often worked together. The machinery which they used together was bought by both of them, with the cost of the combine shared about equally. However, the father supplied more money on the disc than Warren. As of the date of the accident, Warren's father would have supplied slightly more of the financing than Warren. Exchange of work arrangements are common in this state. Also, it is not unusual for neighbors to do the work of a farmer who is temporarily ill or disabled, with the implied understanding by all concerned that the sick farmer will return the favor if and when he is able. In the latter situation, however, someone other than the farmer organizes the group and suggests the manner in which the work will be done and by whom the equipment will be furnished. In the usual work exchange arrangements, it is the owner of the premises where the work is to be done who decides when the work should be done and what equipment will be needed. Other than apportioning the work among those involved, there is none of the usual control exercised by an employer over an employee. We are convinced that in none of these situations do the parties involved think of themselves in terms of being masters and servants or employers and employees. As Schmidt testified, he did not so consider himself but he did expect Warren to perform like services for him when the need arose. It is an exchange of work between equals. In exchanging work, farmers are not selling their time but are simply assisting a neighbor to get a job done with the expectation that the neighbor will return the favor. If we are to sustain the judgment herein, we must give a much broader construction to the terms "master" and "servant," and "employer" and "employee" than we have done heretofore. To affirm the judgment would require us to hold that the word "employee" is to be interpreted as inclusive of any and every person who may happen at the time of the accident to be rendering some service to the insured, *776 whether that service be occasional, incidental, casual, gratuitous, or the mere expression of a neighborly act. This we refuse to do. The usual exchange of work arrangement does not as a matter of law constitute employment so as to create an employee and employer relationship. Stripped to its essential element, we hold the fact that Walter was bringing his own tractor to his son's farm at the son's request did not make him an employee of the son at the time of the accident which occurred before he reached the son's farm. The judgment herein is reversed, and the petition is dismissed. Reversed and dismissed. CLINTON, J., dissenting.

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