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94 P.3d 959 (2004) 151 Wash.2d 1024-1031 SCHULTZ v. STATE, DEPT. OF SOCIAL AND HEALTH SERVICES No. 74632-0. Supreme Court of Washington, Department I. June 2, 2004. Disposition of petition for review denied.

575 F.2d 1248 11 ERC 2068 PLAZA BANK OF WEST PORT, ST. LOUIS, MISSOURI, Petitioner,v.BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, Respondent,andManchester Financial Corporation, St. Louis, and ManchesterBank West County, Maryland Heights, Missouri,Respondents-Intervenors. No. 77-1730. United States Court of Appeals,Eighth Circuit. Submitted March 15, 1978.Decided May 15, 1978. Jerome Wallach, Wallach & McAvoy, Gravois, Fenton, Mo., for petitioner. Thomas G. Wilson, Atty. App. Section, Civ. Div., Dept. of Justice, Washington, D. C., for respondent, Board of Governors, etc.; Barbara Allen Babcock, Asst. Atty. Gen., and Ronald R. Glancz and Mark N. Mutterperl, Attys., Washington, D. C., on brief. Thompson & Mitchell, St. Louis, Mo., for intervenor-respondent, Manchester Financial Corp., et al.; Peter A. Fanchi (argued), and David F. Ulmer, St. Louis, Mo., on brief. Before VAN OOSTERHOUT, Senior Circuit Judge, LAY, Circuit Judge, and HANSON, Senior District Judge.* VAN OOSTERHOUT, Senior Circuit Judge. 1 Before us is a timely petition filed by Plaza Bank of West Port, St. Louis, Missouri (Plaza Bank), for review of the order of the Board of Governors of the Federal Reserve System (hereinafter the Board), effective August 15, 1977, granting the application of Manchester Financial Corporation (MFC) to obtain prior approval of the transfer of 99.4% of the capital stock of Manchester Bank West County, Maryland Heights, Missouri (Manchester Bank West), pursuant to 12 U.S.C. § 1842, and for review of the order of the Board effective December 7, 1977, denying Plaza Bank's request for reconsideration or a stay order. The Board's order granted MFC's application for prior approval of the acquisition of the shares of stock of Manchester Bank West. The approval was granted pursuant to 12 U.S.C. §§ 1841 et seq. Jurisdiction to review the Board's orders is conferred upon this court by 12 U.S.C. § 1848. MFC and Manchester Bank West have intervened and filed briefs in support of the Board's orders. The Board has likewise filed a brief in support of its orders. 2 Plaza Bank asserts that the Board's order approving the stock acquisition should be vacated and set aside for the following reasons: 3 I. The Board's order is arbitrary, capricious and an abuse of discretion in that the Board did not discharge its duty to consider its obligations under 12 U.S.C. § 1842(c) and all relevant factors in making its determination. 4 II. The Board failed to comply with the National Environmental Policy Act. 5 III. The Board acted illegally and beyond its jurisdiction in approving the acquisition of the stock of the bank which Plaza Bank claimed to have been chartered in violation of applicable Missouri law. 6 We reject each of such contentions and dismiss the petition for the reasons hereinafter stated. The record is voluminous. We will only briefly summarize the relevant facts to the extent necessary to afford a background for discussion of the legal issues. 7 Five individuals applied to the Missouri Commissioner of Finance for a state charter for Manchester Bank West pursuant to Missouri law. The applicants were provided with a loan for the required capital by MFC. Submitted with the state application and also with the federal acquisition application was the written contract between the five organizers and MFC which provided that the loan would be without interest and that upon the granting of the state charter the stock would be transferred to MFC and the $1,200,000 loan would be cancelled. The state charter was granted subject to certain conditions, the material one here being: 8 Finally, the correspondence which accompanied the charter expressly stated that Manchester Bank West County was not to open unless and until prior approval was granted by the Board of Governors of the Federal Reserve System for acquisition of said bank by Manchester Financial Corporation, St. Louis, Missouri. 9 On October 25, 1976, MFC applied to the Board for prior approval to acquire 99.4% of the voting shares of Manchester Bank West. The 91-page application included a detailed feasibility study. The Federal Reserve Bank of St. Louis made a field investigation and submitted a detailed report to the Board. Copies of the application were sent to the Missouri Commissioner of Finance, the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the Antitrust Division of the Department of Justice. Notice of the application was published in the Federal Register. The Missouri Commissioner of Finance advised the Board by letter on December 1, 1976, that he had no objection to the application. 10 Plaza Bank filed detailed objections to the application and was afforded a full opportunity to present its reasons why the application should not be granted. Additional facts will be set out in the course of the opinion. 11 The scope of review of this proceeding is set out in 5 U.S.C. § 706 which provides that a court shall hold unlawful and set aside administrative action, findings and conclusions which are found to be arbitrary, capricious, an abuse of discretion or not otherwise in accordance with law. In First National Bank of Fayetteville v. Smith, 508 F.2d 1371, 1376 (8th Cir. 1974), this court held: 12 The "arbitrary and capricious" standard of review is a narrow one. Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. 402 at 416, 91 S.Ct. 814, 28 L.Ed.2d 136. Its scope is more restrictive than the "substantial evidence" test which is applied when reviewing formal findings made on a hearing record. See Camp v. Pitts, supra, 411 U.S. 138 at 141, 93 S.Ct. 1241, 36 L.Ed.2d 106; Webster Groves Trust Co. v. Saxon, supra, 370 F.2d 381 at 387 (8 Cir.); Charlton v. United States, 412 F.2d 390, 398 (3d Cir. 1969) (Stahl, Circuit Judge, concurring). "Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis." Carlisle Paper Box Co. v. N.L.R.B., 398 F.2d 1, 6 (3d Cir. 1968). Something more than mere error is necessary to meet the test. N.L.R.B. v. Parkhurst Manufacturing Co., 317 F.2d 513, 518 (8th Cir. 1963). To have administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was "willful and unreasoning action, without consideration and in disregard of the facts or circumstances of the case * * * ." 73 C.J.S. Public Administrative Bodies and Procedure § 209 at 569 (1951). 13 The Bank Holding Company Act, 12 U.S.C. § 1848, states: "The findings of the Board as to the facts, if supported by substantial evidence, shall be conclusive." 14 We now reach the errors relied upon and will treat them in the order hereinabove stated. I. 15 The factors governing the approval of a stock acquisition application are set out in 12 U.S.C. § 1842(c). Petitioner's brief on point I consists of one and one-half pages. The Board in its brief sets forth in considerable detail the evidence supporting the approval of the application. We have examined the record and find that the evidence supporting the economic and public interest aspects of the application is overwhelming. In the absence of any substantial attack upon the economic issues, we see no purpose in detailing the supporting evidence. The Board's findings upon which the application was approved are supported by substantial evidence and are not arbitrary or capricious. Petitioner in brief on the first issue states that it presented two independent arguments: (1) the interpretation of R.S.Mo. 362.015 and 351.050, and (2) the interpretation of R.S.Mo. 362.415, and that only the first point was considered by the Board. We shall consider this issue at point III. II. 16 The National Environmental Policy Act, at 42 U.S.C. § 4332(2)(C), provides all agencies of the federal government shall include with respect to major federal actions significantly affecting the quality of the environment a detailed environmental impact statement. Petitioner, relying largely on Country Club Bank of Kansas City v. Smith, 399 F.Supp. 1097 (W.D.Mo.1975), urges that the Board erred in not building up an environmental record and in not stating its reasons for not requiring an environmental impact statement. Country Club is distinguishable from our present case in that there a federal bank charter was involved. Moreover, the issue of whether an environmental impact statement was required was not adjudicated but such issue was remanded to the Comptroller of the Currency for more detailed findings. In our present case the Board in its order denying reconsideration states: 17 The second argument advanced by Petitioner, that an EIS statement is required to be filed by the Board, is based upon section 102(2)(c) of the National Environmental Policy Act (42 U.S.C. § 4332(2)(c)) ("NEPA") which provides that an EIS must be prepared by any federal agency taking " . . . major Federal action significantly affecting the quality of the human environment. . . . " The "Federal action" taken by the Board on August 15, 1977, was its approval of a transfer of shares of Bank from five individual incorporators of Bank to MFC. The Board finds that such a transfer, alone, would not significantly affect the quality of the human environment. Moreover, the Petitioner has not indicated how it believes the Board's action would affect the environment. Thus, having reviewed the question in the context of Protestant's request, the Board finds that it is not required to file an EIS in connection with the acquisition of Bank by MFC. 18 The Board in a footnote states that in its twenty years of administration of the Act no one has raised the question that a transfer of shares of a bank affects the environment. While this is not conclusive on the issue, and while it is perhaps relevant only as to years subsequent to 1969, when NEPA was enacted, it lends some support to the Board's position. The state-chartered bank is located in a new shopping center. The record discloses no evidence that the bank will adversely affect the environment or that the acquisition of the stock thereof by MFC will adversely affect the environment. We hold that the Board committed no error or abuse of discretion in determining that an EIS was not essential. III. 19 Petitioner places its greatest reliance upon its contention that the state bank charter was issued in violation of state law. R.S.Mo. 362.015 and R.S.Mo. 351.050, as interpreted by Mark Twain Cape Girardeau Bank v. State Banking Board, 528 S.W.2d 443 (Mo.App.1975), provide that applications for state bank charters can be made only by individuals and not by corporations. The case holds that a corporation is not a person within the meaning of the statutes. In Mark Twain seven individual subscribers joined with the corporation in the application. The court held no charter could be granted because of the corporation's participation as an applicant. In its findings, the court among other things stated: 20 Bancshares was the primary organizer and applicant for the Proposed Bank's charter, and Bancshare's activity is an attempt by a holding company to organize a bank, as distinguished from an acquisition of or an affiliation with an existing bank. (Emphasis added). 21 528 S.W.2d at 445. In our present case MFC was not the applicant for the charter. The five individual applicants met the statutory requirements for bank charter applicants. 22 The charter was granted subject to conditions heretofore mentioned which have now been met. Pursuant to the Board's authorization and the issuance of the state bank charter, the bank stock was transferred to MFC. The bank opened for business on December 2, 1977. In its order denying rehearing the Board states: 23 The Petitioner argues that the chartering of Bank was invalid under § 362.415 of the Missouri Statutes and that, pursuant to the Supreme Court's holding in Whitney National Bank of Jefferson Parish v. Bank of New Orleans and Trust Company ("Whitney"), the Board is required to consider issues of State law such as that presented by the acquisition of Bank by MFC. 24 Although the Board did not specifically address the issue of the alleged violation of § 362.415 of the Missouri Statutes in its Order, it did address the closely related issue of the alleged violation of § 362.015 of the Missouri Statutes. The Board found that under Whitney, the Board was not required to consider a violation that occurred, if at all, upon the issuance of the charter for Bank by the Missouri Commissioner of Finance. Only where the acquisition of a bank by a bank holding company would result in a violation of State law is the Board required to consider issues of State law. However, the alleged violation of § 362.415, like the alleged violation of § 362.015 previously considered by the Board, occurred, if at all, upon the issuance of the charter for Bank by the Missouri Finance Commissioner. Approval of the application by the Board constituted an approval of Applicant's acquisition of shares of Bank, not approval of the chartering of Bank. 25 The Board, for reasons set out in its order, committed no error in denying a stay of its order approving the acquisition of the stock by MFC. 26 The Board in its original order held:Pursuant to the Supreme Court's holding in Whitney National Bank of Jefferson Parish v. Bank of New Orleans and Trust Company, the Board may "not approve a holding company arrangement involving the organization and opening of a new bank if the opening of the bank, by reason of its ownership by a bank holding company, would be prohibited by a valid state law. The Whitney case involved a bank holding company acquisition of a new bank that, the plaintiff contended, would in actuality function as a branch bank in a State in which branch banking was prohibited by State law. Thus, it was asserted, Board approval of an application to acquire such a bank would have enabled the bank holding company to enter into a de facto branch banking arrangement that was prohibited by State law and, in effect, would have constituted Board approval of unlawful conduct. Since the holding in Whitney, the Board has resolved issues of State law where they directly pertain to the question of whether the acquisition of a bank by a bank holding company would result in a violation of State law. In the facts presented by the instant application, however, the violation, if any, of Missouri law occurred upon the issuance of the charter for Bank by the Missouri Commissioner of Finance. Approval of the instant application would constitute an approval of Applicant's acquisition of shares of Bank, not approval of the chartering of Bank. Thus, the Board, by approving the instant application, would not approve assertedly unlawful conduct. 27 The Board has never presumed to review the incorporation or chartering procedures defined by State statutes and administered by State banking officials. Instead, the Board merely requires evidence of the issuance of the necessary charter or its conditional or preliminary approval and solicits the comments of the appropriate banking authority. Here, Bank's charter has been granted by the Missouri Finance Commissioner and, absent a judicial determination to the contrary, the Board presumes that the charter was granted lawfully. Since the effectiveness of the chartering action has not been stayed, the pending litigation in the Missouri State courts does not act as a bar to the Board's action on this application. 28 Our present case is distinguishable from Whitney National Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965). We find nothing in Whitney which would require the Board to pass on the validity of the state-issued bank charter. Such holding is inconsistent with 12 U.S.C. § 1846 which reads: 29 The enactment by the Congress of this chapter shall not be construed as preventing any State from exercising such powers and jurisdiction which it now has or may hereafter have with respect to banks, bank holding companies, and subsidiaries thereof. 30 We agree with the Board's view that it has no authority or duty to pass on the validity of the state charter under the facts of this case. 31 We are advised that various state proceedings are pending attacking the validity of the state charter. If petitioner is successful in obtaining a valid state judgment invalidating the charter as violative of state law, the approval of the transfer of the stock would be meaningless and serve no purpose. The bank would be unable to function without the state charter. The Board properly determined that the validity of the state bank charter should be determined by Missouri courts. 32 The petition for review is denied. * The Honorable William C. Hanson, Senior District Judge, Southern District of Iowa, sitting by designation

648 S.E.2d 442 (2007) Jonathan Brian ROBERTS v. COLDWELL BANKER KINARD REALTY (two cases). Nos. A07A0248, A07A0330. Court of Appeals of Georgia. June 20, 2007. *443 Brian Macon House, for Jonathan Brian Roberts. Minor, Bell & Neal, Stephen Bruce Farrow, Dalton, for Coldwell Banker Kinard Realty. Bandy & Stagg, Lawrence Alan Stagg, Ringgold, for Angela Dunn Roberts. MILLER, Judge. In this breach of contract action, Jonathan Brian Roberts (Case No. A07A0248) and Angela Dunn Roberts (Case No. A07A0330) appeal from the trial court's grant of summary judgment against them and in favor of Coldwell Banker Kinard Realty ("Coldwell Banker"). Finding that the trial court erred in holding that Coldwell Banker was contractually entitled to a commission on the sale of the Robertses' home, we reverse. "On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine if there exists a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, entitle the movant to judgment as a matter of law." (Citation omitted.) Wachovia Bank v. Moody Bible Institute of Chicago, 283 Ga. App. 488, 489, 642 S.E.2d 118 (2007). So viewed, the evidence shows that on March 31, 2005, while the Roberts were in the middle of a contested divorce, the parties entered into an "Exclusive Seller Listing Agreement" (the "Listing Agreement"), under which Coldwell Banker became the Robertses' agent for the purpose of selling their home. Paragraph 5 of the Listing Agreement provided that Coldwell Banker would be entitled to a six percent commission if: (1) the property sold during the term of the Listing Agreement; or (2) the property sold within 180 days after the expiration of that agreement, provided that the buyer was "introduced to the property by the Broker" while the Listing Agreement was in effect. The Listing Agreement expired on June 30, 2005. In late February or early March, 2005 Michelle Denton saw a "For Sale By Owner" sign in the Robertses' yard. Several days later, and prior to the date on which the Robertses entered into the Listing Agreement, Mr. Denton's sister, who was a friend of Mr. Roberts, introduced the two men and they discussed the property. In April, 2005, Mr. Denton called Mrs. Roberts to arrange a viewing of the house, and he learned that the property was now listed with Coldwell Banker. The Dentons then contacted a real estate agent with Trinity Real Estate, LLP ("Trinity") and went with him to view the house on June 11, 2005. After questions by Mrs. Roberts made them "uncomfortable," the Dentons left. Shortly thereafter, Messrs. Roberts and Denton spoke on the *444 telephone regarding the property, but no offer was made. Within a few days after the expiration of the Listing Agreement, Mr. Roberts contacted Mr. Denton to ask if they were still interested in the property. On July 11, 2005, the Dentons made an offer to purchase the house. Mrs. Roberts refused to agree to the sale, so Mr. Roberts sought and obtained a court order requiring her to quit-claim her interest in the property to him. Mr. Roberts subsequently closed the sale of the property to the Dentons. Coldwell Banker then initiated the current action against the Robertses, seeking to recover an $18,000 commission allegedly owed it under Paragraph 5 of the Listing Agreement, asserting that the Dentons were "introduced" to the property by Trinity and that Trinity was a licensee of Coldwell Banker. Coldwell Banker and Mr. Roberts then filed cross-motions for summary judgment, with the trial court denying Mr. Robertses', granting Coldwell Banker's, and entering judgment against the Roberts and in favor of Coldwell Banker. On appeal, Mr. Roberts asserts that the trial court erred in finding that a "licensee" of Coldwell Banker "introduced" the buyers to the property. Mrs. Roberts argues that she cannot be held liable for the commission, because at the time the sale closed she no longer owned an interest in the property. We agree with Mr. Roberts, and therefore reverse the grant of summary judgment in favor of Coldwell Banker against both Mr. and Mrs. Roberts. 1. Under the terms of the Listing Agreement, Coldwell Banker is entitled to a commission only if it can show that Coldwell Banker or its licensee introduced the Dentons to the property. Coldwell Banker argues, and the trial court implicitly found, that the Dentons were introduced to the property when they went to view the same with their real estate agent, and that Trinity was Coldwell Banker's licensee. These findings, however, contravene applicable law. This Court has previously held that the use of the term "introduced," as used in the extension clause found in the Listing Agreement, was intended "to obligate sellers to pay commissions . . . where the broker [initially] told the buyer about the property, provided the buyer with information about the property, or showed the buyer the property." Snipes v. Marcene P. Powell & Assoc., 273 Ga.App. 814, 817(1)(a), 616 S.E.2d 152 (2005). In Snipes, we held that because the buyer had seen the broker's "For Sale" sign on the property and thereafter contacted the broker for information regarding the same, the broker had introduced the buyer to the property. Id. at 818(1)(b), 616 S.E.2d 152. Here, undisputed affidavit testimony established that the Dentons first learned of the property by viewing a "For Sale By Owner" sign placed by Mr. Roberts. Additionally, the Dentons obtained their initial information about the property from Mr. Roberts, before the property was listed with Coldwell Banker and before the Dentons engaged Trinity to serve as their agent. Applying the Snipes holding to these facts, we must conclude that Mr. Roberts, rather than Trinity, introduced the property to the Dentons. We further note, however, that even had Trinity introduced the property to the Dentons, that fact would not entitle Coldwell Banker to a commission, because there is no evidence that Trinity was a licensee of Coldwell Banker. As noted above, the extension clause applies to a sale of the property to a party introduced by the "Broker" during the listing period, and "Broker" is defined as Coldwell Banker "and its licensees." In the real estate context, Georgia law defines a licensee as "any person who is licensed as a community association manager, salesperson, associate broker, or broker." OCGA § 43-40-1(5). Associate brokers, community association managers, and salespersons, in turn, are all defined as persons who act "on behalf of a real estate broker." OCGA § 43-40-1(1), (4.3), (10). Here, Paragraph 5 of the Listing Agreement clearly distinguishes between Coldwell Banker, as "Broker," and "other brokers." Thus, logic dictates that the phrase "[Broker's] licensees," as used in the Listing Agreement, was not intended to embrace all licensed real estate professionals; *445 rather, it was intended to refer only to associate brokers or salespersons specifically licensed to act on behalf of Coldwell Banker. This conclusion is reenforced by "[t]he cardinal rule of [contract] construction[, which] is to ascertain the intent of the parties." (Citation omitted.) Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga.App. 862, 866(1), 625 S.E.2d 57 (2005). In determining that intent, "all the contract terms must be considered together . . ., and a construction upholding the contract in whole and every part is preferred." (Citations omitted.) Id. Here, Coldwell Banker is asking us to read the extension clause so that it would be entitled to a commission if the property sold within six months after the expiration of the Listing Agreement, so long as the buyer had been introduced to the property during the term thereof. Had the parties intended that result, however, there would have been no need to include the limiting words "by Broker," following the words "introduced to the property," within the extension clause of Paragraph 5. Reading the Listing Agreement in its entirety, therefore, we must conclude that the phrase "Broker and its licensees" refers only to Coldwell Banker and licensed real estate professionals specifically affiliated with that company. 2. In light of our holding in Division 1, supra, we need not address the question of whether Mrs. Roberts can be held liable for a commission on the sale of the property where she no longer owned an interest in the property at the time the sale closed. For the foregoing reasons, we reverse the trial court's order granting summary judgment in favor of Coldwell Banker and against the Robertses. Judgment reversed. BARNES, C.J., and SMITH, P.J., concur.

37 So.3d 997 (2010) STATE of Louisiana v. Israel FLORES, et al. No. 2010-KK-0960. Supreme Court of Louisiana. June 18, 2010. *998 PER CURIAM. Granted. The decisions of the courts below are reversed and this case is remanded to the district court for further proceedings. Even assuming that the entry of the police officers into the residence located at 5330 Venus Street in New Orleans and initial security sweep of the premises occurred without exigent circumstances or consent and thus amounted to an illegal search of the dwelling, when officers have probable cause to believe that evidence of criminal activity is on the premises, they may temporarily secure the dwelling to protect themselves and to prevent the removal or destruction of evidence to preserve the status quo while obtaining a search warrant. Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 3388, 82 L.Ed.2d 599 (1984)("[S]ecuring a dwelling on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents [for Fourth Amendment purposes]"). Further, even assuming that the consent of defendant Flores to the subsequent search of the residence for evidence was tainted by its close temporal proximity to the entry of the officers, see State v. Ferrand, 95-1346 (La.12/8/95), 664 So.2d 396, the warrant process was well underway, and the application was "pretty much typed and ... ready to print," when Flores gave consent and prematurely authorized the search, prompting the police to forego taking the warrant application to a magistrate. Because nothing the officers observed on the premises after their initial entry affected the decision to obtain a warrant, and because the probable cause basis for the warrant application derived not from their observations on the scene but from wholly independent sources, i.e., from a confidential informant and defendant Olivarez, who informed the surveillance team that 30 pounds of marijuana were inside the residence, information which was then conveyed to the agents as they knocked and made their initial entry after Flores opened the door, the police would have obtained a valid warrant from a magistrate and would have inevitably discovered the contraband and other items in the residence by lawful means. See Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 2534, 101 L.Ed.2d 472 (1988)("The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered."); see also United States v. Elder, 466 F.3d 1090, 1091 (7th Cir.2006)("The usual understanding of that doctrine is that the exclusionary rule should not be applied when all the steps required to obtain a valid warrant have been taken before the premature search occurs [citing Murray]."). The trial court therefore erred in granting the motion to suppress evidence. We set aside that ruling and remand for further proceedings consistent with the views expressed herein.

357 F.2d 923 Henry G. BARTSCH, d/b/a Airport Dispatching Service, Petitioner,v.WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION, Respondent.Airport Transport, Inc., of Virginia, Intervenor. No. 10217. United States Court of Appeals Fourth Circuit. Argued February 7, 1966. Decided March 7, 1966. Henry G. Bartsch, Washington, D. C., pro se. Russell W. Cunningham, General Counsel, Washington Metropolitan Area Transit Commission, for respondent. Linwood C. Major, Jr., Washington, D. C., for intervenor. Before HAYNSWORTH, Chief Judge, and SOBELOFF and J. SPENCER BELL, Circuit Judges. PER CURIAM. 1 This is a petition for review of an order of the Washington Metropolitan Area Transit Commission. Washington Metropolitan Transit Regulation Compact Act (1960), § 6; Compact, Title II, Art. XII, § 17(a) Public Law 86-794, 74 Stat. 1031. 2 This petition attacks fare increases granted to a competitor of the petitioner. WMATC Order No. 486. He raises four objections: (1) The Commission incorrectly classified vehicles of less than 8 passengers as non-taxicabs; (2) The order allows higher fares to be charged by Airport Transport, Inc., of Virginia than by other carriers, in violation of the Fourteenth Amendment to the Constitution; (3) The Commission does not have jurisdiction to set fares for trips to and from Washington National Airport; and (4) The taxicab rates set are unreasonable. 3 We do not consider the first objection. It has already been litigated between the identical parties. Bartsch v. Washington Metropolitan Area Transit Comm. No. 18,093 (D.C.Cir. 1965). If "an issue * * * has once been decided between the parties by a competent court, the court will not permit the matter to be relitigated between the same parties in another case." Seatrain Lines, Inc. v. Pennsylvania R. R. Co., 207 F.2d 255, 259 (3 Cir. 1953). 4 No substantial issue is raised by the second objection. The equal protection clause does not require that rates be identical within an entire industry. In the regulation of varying services in several states minor variations are to be expected. Compact, supra, Title II, Art. XII, § 6(a) (2). 5 The Commission does have jurisdiction to set taxicab rates to and from Washington National Airport. The grant of exclusive jurisdiction over the airport to the federal government, Code of Virginia, Title 7, Chap. 1, §§ 7-9, does not exclude all state jurisdiction relating to the federal area. 6 "[C]onsent to this acquisition gave the United States power to exercise exclusive jurisdiction within the area. * * * The fiction of a state within a state can have no validity to prevent the state from exercising its power over the federal area within its boundaries, so long as there is no interference with the jurisdiction asserted by the Federal Government. The sovereign rights in this dual relationship are not antagonistic. Accommodation and cooperation are their aim. It is friction, not fiction, to which we must give heed." Howard v. Commissioners of Sinking Fund, etc., 344 U.S. 624, 627, 73 S.Ct. 465, 467, 97 L.Ed. 617 (1953). 7 Regulation of interstate rates to and from the airport does not conflict with the internal control of the facilities. 8 The taxicab rates set were not unreasonable. In determining rates we think the Commission was justified in taking into consideration lawfully imposed franchise fees paid by the carrier. 9 The order of the Commission is affirmed. 10 Affirmed.

Trinajstic v St. Owner, LP (2017 NY Slip Op 03117) Trinajstic v St. Owner, LP 2017 NY Slip Op 03117 Decided on April 25, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on April 25, 2017 Friedman, J.P., Richter, Feinman, Gische, Gesmer, JJ. 3804 108341/10 590198/13 590296/14 [*1]Thomas Trinajstic, Plaintiff-Respondent, vSt. Owner, LP, et al., Defendants-Appellants, Insignia Residential Group. Inc., Defendant. St. Owner, LP, et al., Third-Party Plaintiffs-Respondents-Appellants, -against-vQ's Marble & Stone Inc., Third-Party Defendant, Pat Pellegrini Flooring Corporation, Third-Party Defendant-Appellant. [And a Second Third-Party Action] Cascone & Kluepfel, LLP, Garden City (James K. O'Sullivan of counsel), for Pat Pellegrini Flooring Corporation, appellant. Marshall Dennehey Warner Coleman & Goggin, P.C., New York (Michael R. Manarel of counsel), for St. Owner, LP and Tishman Speyer Properties, L.P., appellants/respondents-appellants. Sacks and Sacks LLP, New York (Scott N. Singer of counsel), for respondent. Order, Supreme Court, New York County (Lucy Billings, J.), entered August 16, 2016, which, inter alia, denied the motion of defendants St. Owner, LP and Tishman Speyer Properties, L.P. for summary judgment dismissing plaintiff's Labor Law § 241(6) claim and on their third-party claim for common-law indemnification against third-party defendant Pat Pellegrini Flooring Corporation (Pellegrini), and denied the motion of Pellegrini for summary judgment dismissing the third-party action as against it, unanimously affirmed, without costs. The court correctly found that questions of fact as to whether workers employed by Pellegrini, a flooring refinisher at defendants' premises, created the dust that allegedly contributed to plaintiff's fall barred dismissal of his claim pursuant to Labor Law § 241(6) (see 12 NYCRR 23-1.7[d], [e]). Plaintiff, a laborer for the general contractor on a gut renovation project at the premises, was in the process of placing protection over the newly refinished floors at the time of his fall, and was thus entitled to the protections of the Labor Law (see Bajor v 75 E. End Owners Inc., 89 AD3d 458 [1st Dept 2011]; Tornello v Beaver Brook Assoc., LLC, 8 AD3d 7 [1st Dept 2004]). The fact that plaintiff's job duties on the project also included some cleaning and debris removal does not bar his claim, as the record indicates that he was not engaged in cleaning the dust or broken tiles that caused him to fall (see Lopez v Fordham Univ., 69 AD3d 532, 533 [1st Dept 2010], lv dismissed 15 NY3d 821 [2010]). The court also correctly determined that summary resolution of defendants' claim for common-law indemnification against Pellegrini would be premature. While the record contains evidence that plaintiff's fall was caused by the presence of dust created by Pellegrini, plaintiff also pointed to broken tiles as a cause of his fall, tiles unrelated to Pellegrini's work. In any event, defendants failed to make a prima facie showing of a lack of any negligence on their part (see Martins v Little 40 Worth Assoc., Inc., 72 AD3d 483, 484 [1st Dept 2010]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: APRIL 25, 2017 CLERK

573 F.2d 1095 UNITED STATES of America, Plaintiff-Appellee,v.Walter T. BEST, Defendant-Appellant. No. 77-2836. United States Court of Appeals,Ninth Circuit. March 31, 1978. Robert M. Holley, Sacramento, Cal., for defendant-appellant. Harry Hull, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee. On Appeal from the United States District Court for the Eastern District of California. Before ELY, WRIGHT and CHOY, Circuit Judges. CHOY, Circuit Judge: 1 While this appeal arises from a simple conviction for drunk driving, it raises important issues involving the interpretation of the Assimilative Crimes Act, the formulation of federal common law, and the limits upon federal authority over the states imposed by the Constitution. 2 Appellant Best pleaded guilty to driving a vehicle on McClellan Air Force Base (a federal enclave in the State of California) while under the influence of alcohol, in violation of California Vehicle Code § 23102(a), a statute incorporated into federal law by 18 U.S.C. § 13, the Assimilative Crimes Act. The United States Magistrate for the Eastern District of California sentenced Best to serve ten days in jail and to pay a fine of $350 pursuant to Cal.Veh.Code § 23102(c).1 The magistrate further ordered that appellant's driver's license be suspended for six months pursuant to Cal.Veh.Code § 13201.5(a).2 Best moved to correct the sentence under Fed.R.Crim.P. 35 on the ground that the magistrate lacked the power to suspend his driver's license. The motion was denied, and the district court affirmed that denial. We reverse and remand.3 3 Appellant does not dispute the sentence of ten days or the fine. However, he contends that the portions of the California Vehicle Code providing for suspension of driver's licenses are not incorporated into federal law by virtue of the Assimilative Crimes Act, and that the suspension of his California driver's license by a federal magistrate is an impermissible interference with that state's regulation of its highways. Assimilative Crimes Act 4 The Assimilative Crimes Act, 18 U.S.C. § 13, states: 5 Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title (defining the special maritime and territorial jurisdiction of the United States), is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment. 6 The purpose of this statute, the history of which dates to 1825,4 is to conform the criminal law of federal enclaves to that of local law except in cases of specific federal crimes. United States v. Sharpnack, 355 U.S. 286, 289-95, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958); Acunia v. United States, 404 F.2d 140, 142 (9th Cir. 1968). It has been described as "a shorthand method of providing a set of criminal laws on federal reservations by using local law to fill the gaps in federal criminal law," United States v. Prejean, 494 F.2d 495, 496 (5th Cir. 1974), and does not apply where another federal statute makes criminal the same conduct condemned under state law.5 The Act is appropriately applied here, since there is no express enactment of Congress providing punishment for drunk driving. See United States v. Walker, 552 F.2d 566, 568 (4th Cir. 1977). 7 However, the Act by its own terms incorporates into federal law only the criminal laws of the jurisdiction within which the enclave exists; it is, itself, a penal statute. See United States v. Sharpnack, supra, 355 U.S. at 291-93, 78 S.Ct. 291. Thus, in the instant case only those California statutes making drunk driving a criminal offense and authorizing punishment therefor are assimilated into federal law under the Act. 8 Appellant contends that the provisions of the California Vehicle Code providing for suspension of driver's licenses are regulatory and not punitive. He would, for purposes of determining whether the statutes in question are within the scope of the Act, rely on state definitions of "punishment." California's interpretation of those of its criminal statutes incorporated into federal law is of course binding under the Act. But California's definition of "punishment" cannot govern if it conflicts with the scope of that term as used in the federal statute. What meaning Congress intended is a federal question which we must determine. See Johnson v. Yellow Cab Co., 321 U.S. 383, 391, 64 S.Ct. 622, 88 L.Ed. 814 (1944); Puerto Rico v. Shell Co., 302 U.S. 253, 265-66, 58 S.Ct. 167, 82 L.Ed. 235 (1937); see also Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 208, 66 S.Ct. 992, 90 L.Ed. 1172 (1946). 9 In United States v. Sharpnack, supra, the Supreme Court analyzed the history of the Assimilative Crimes Act beginning with the Act of 1825, sponsored by Daniel Webster in the House of Representatives, in which the Congress expressly adopted the fundamental policy of "conformity to local law." The Court concluded that the succeeding series of reenactments culminating in the present statute "demonstrates a consistent congressional purpose to apply the principle of conformity to state criminal laws . . . ." 355 U.S. at 290-91, 78 S.Ct. at 295. The rationale for this policy was articulated in the earlier case of United States v. Press Publishing Co.: 10 It is certain . . . that as to such offenses the state law, when they are by that law defined and punished, is adopted and made applicable. . . . When these results of the statute are borne in mind, it becomes manifest that Congress, in adopting it, sedulously considered the twofold character of our constitutional government, and had in view the enlightened purpose, so far as the punishment of crime was concerned, to interfere as little as might be with the authority of the states on that subject . . . . 11 219 U.S. 1, 9, 31 S.Ct. 212, 214, 55 L.Ed. 65 (1911) (emphasis supplied). Pursuant to this rationale, we recently determined that particular state laws were prohibitory rather than regulatory against the backdrop of the Act's policy that a state's penal laws will be uniformly applied to citizens on and off federal enclaves. United States v. Marcyes, 557 F.2d 1361, 1364-65 (9th Cir. 1977). 12 We think the congressional purpose can best be achieved by application of state interpretations of what constitutes "punishment," since this accomplishes the Act's objective of providing a criminal law for federal enclaves while at the same time effectuating the policy of conformity to local law.6 California Law 13 The California scheme for suspending the driver's licenses of those who are convicted of drunk driving is dichotomous: authority to suspend is vested both in the courts and in the Department of Motor Vehicles (DMV) under certain circumstances. Thus, pursuant to Cal.Veh.Code § 13352, the DMV is required to suspend the license of one who is convicted for the second time of drunk driving whether or not the court orders suspension. While no California authority appears with respect to court-ordered suspensions, it is well established that such departmental suspensions are regulatory and not penal. See, e. g., Beamon v. Department of Motor Vehicles, 180 Cal.App.2d 200, 209-10, 4 Cal.Rptr. 396, 403 (1960). 14 Until recently, the dichotomy between court-ordered and departmental suspensions was more clear. When Beamon was written, for example, California gave the DMV and the courts concurrent authority to suspend driver's licenses after the first conviction for drunk driving, so that where a court chose not to suspend the convict's license, the DMV could still do so in its discretion even in the face of the court's recommendation of no suspension. See former Cal.Veh.Code §§ 13352, 13354; Hough v. McCarthy, 54 Cal.2d 273, 281-82, 5 Cal.Rptr. 668, 673-74, 353 P.2d 276, 280 (1960). However, this clear definition no longer exists with respect to first convictions for drunk driving. 15 Cal.Veh.Code § 13201.5, enacted in 1975, provides that the court may suspend a driver's license upon a first conviction, while § 13352(a), enacted in 1972, requires the DMV to suspend a driver's license upon a first conviction except "where the court does not order the department to suspend."7 Moreover, the DMV's discretionary suspension authority, which formerly included first convictions for drunk driving, see Hough v. McCarthy, supra, no longer extends to this ground. See Cal.Veh.Code §§ 13361, 16430; see also Cal.Veh.Code §§ 13359, 12805-09, 13800. Finally, Veh.Code § 13210, enacted in 1971, makes it mandatory for the court to order the department to suspend upon a first conviction "unless the person shows good cause why such order should not be made."Thus, suspension upon a first conviction for drunk driving pursuant to Cal.Veh.Code § 13201.5 is not susceptible to classification as strictly court-ordered or strictly departmental. Rather, it is a hybrid procedure wherein the court effectively orders the DMV to suspend.8 The California cases dealing with departmental suspension are therefore not precisely apposite. The rationale of those cases, however, is sufficiently articulated so that we may conclude that under the existing statutory scheme, suspension upon a first conviction of drunk driving does not constitute "punishment" under California law. 16 In Beamon v. Department of Motor Vehicles, supra, 180 Cal.App.2d 200, 210, 4 Cal.Rptr. 396, 403 (1960), the California Court of Appeal upheld the grant of suspension authority to the DMV against a challenge that it comprised an unconstitutional delegation of judicial and legislative power, based on the following reasoning: 17 The suspension of or revocation of a license is not penal; its purpose is to make the streets and highways safe by protecting the public from incompetence, lack of care, and wilful disregard of the rights of others by drivers. (Citations omitted) The fact that petitioner may suffer inconvenience and even economic loss because he has been denied a license does not make the remedial action of the department the imposition of punishment for past offenses. 18 Similarly, in Henry v. Department of Motor Vehicles, 25 Cal.App.3d 649, 102 Cal.Rptr. 36 (1972), the court concluded from the divergence of circumstances that could give rise to suspension, including the fact that the DMV was given discretionary suspension authority, that the legislature did not intend that suspensions have any "proportioned relation to penal sanctions." 25 Cal.App.3d at 654-55, 102 Cal.Rptr. at 40. The court stated: 19 (A) suspension or revocation . . . is not a penal sanction. (Citations omitted) It follows that the propriety of a suspension or revocation is not calibrated with reference to the character of the criminal penalty that might be imposed. 20 25 Cal.App.3d at 654, 102 Cal.Rptr. at 40. 21 Furthermore, the state court has recently upheld a subsection of Cal.Veh.Code § 13201.5 under which state courts are authorized to direct consenting persons in four counties to undergo an experimental rehabilitation program in lieu of suspension of their driver's licenses upon a first conviction, based on the rationale of Hough v. McCarthy, supra. The court held that § 13201.5 is "principally concerned with the administration and control of those who are licensed by the Department of Motor Vehicles to use the highways." McGlothlen v. Department of Motor Vehicles, 71 Cal.App.3d 1005, 1019, 140 Cal.Rptr. 168, 177 (1977). 22 Since suspension of driver's licenses is not "punishment" under California law, the provisions of Cal.Veh.Code §§ 13201.5 and 13352 providing for suspension upon a first conviction of drunk driving are not incorporated into federal law under the terms of the Assimilative Crimes Act, and the magistrate's order of suspension cannot be supported on this ground. Federal Common Law 23 In reviewing the decision of a lower court, we must affirm if the result is correct, although the lower court relied upon a wrong ground or gave a wrong reason, Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937), since "(i)t would be wasteful to send a case back to a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground within the power of the appellate court to formulate." SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943); see United States v. Stevens, 548 F.2d 1360, 1363 n.9 (9th Cir.), cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 369 (1977). Since we have determined that no specific federal statute governs here, and that the suspension authority of the California Vehicle Code is not incorporated into federal law under the Assimilative Crimes Act, the magistrate's order must be authorized, if at all, as a matter of federal common law. 24 It must first be noted in this respect that there is no federal common law of crimes. In United States v. Hudson, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812), the Supreme Court held that there was no jurisdiction in the federal courts to try criminal charges based on the common law and that all federal crimes must be based on statutes of Congress. See also United States v. Coolidge, 14 U.S. (1 Wheat.) 415, 4 L.Ed. 124 (1816). This rule is now well settled. See, e. g., Keeble v. United States, 412 U.S. 205, 215, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (Stewart, J., dissenting); Krulewitch v. United States, 336 U.S. 440, 456-57, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (Jackson, J., concurring); D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 468-69, 62 S.Ct. 676, 86 L.Ed. 956 (1942) (Jackson, J., concurring); Todd v. United States, 158 U.S. 278, 282, 15 S.Ct. 889, 39 L.Ed. 982 (1895). Just as the federal judiciary may not create crimes outright or enlarge the reach of enacted crimes, Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952), neither may it impose punishments not provided for by the federal statute applicable to the described conduct. 25 However, here we are dealing with a court-ordered remedy that does not constitute punishment; and it is equally well settled that wherever the federal courts have occasion to decide a federal question which cannot be answered from federal statutes alone, they may resort to all of the source materials of the common law. Were the federal courts bereft of the common law in such instances, "our federal system would be impotent. This follows from the recognized futility of attempting all-complete statutory codes, and is apparent from the terms of the Constitution itself." D'Oench, Duhme & Co. v. FDIC, supra, 315 U.S. at 469-70, 62 S.Ct. at 685 (Jackson, J., concurring). 26 The question posed here is whether the federal government, in the absence of a specific federal statute or applicable California criminal sanction, is entitled to a nonstatutory equitable remedy against drunk driving on a federal enclave. We conclude that it is, both to protect the property of the United States9 and to facilitate the discharge of its constitutional duties enumerated in Art. I, § 8, pursuant to which McClellan Air Force Base is maintained.10 This is so despite the fact that appellant was charged only with a criminal violation. In Wyandotte Transportation Co. v. United States, 389 U.S. 191, 201-04, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967) and United States v. Republic Steel Corp., 362 U.S. 482, 491-92, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960), involving the obstruction of navigable waterways forbidden by federal statute, it was held that the statutory remedies, which included criminal penalties, were not exclusive. The Court in Wyandotte permitted the government to recover its expenses incurred in removing a negligently sunken barge, and in Republic Steel it authorized an injunctive order to restore the depth of a river decreased by deposits of industrial solids. See also Hines, Inc. v. United States, 551 F.2d 717 (6th Cir. 1977).11 27 In fashioning a common law remedy to protect the federal interest, the federal courts may look to state law. See, e.g., Textile Workers v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); Royal Indemnity Co. v. United States, 313 U.S. 289, 296-97, 66 S.Ct. 995, 85 L.Ed. 1361 (1941); Board of Commissioners v. United States, 308 U.S. 343, 350-52, 60 S.Ct. 285, 84 L.Ed. 13 (1939). Indeed, such a choice of law may be especially appropriate here in view of congressional intent to conform the law of federal enclaves to local law. However, the magistrate's suspension of Best's California driver's license pursuant to Cal.Veh.Code § 13201.5(a) exceeds the scope of the federal interest, and is unduly intrusive on that state's regulation of its highways. Intrusion on State Regulation 28 An order of suspension pursuant to Cal.Veh.Code § 13201.5, as noted earlier, in effect requires the DMV to suspend the license. Thus, if we were to uphold the magistrate's order, we would be authorizing a federal court to require a California agency to carry out the federal order to suspend a state-created privilege to drive on California's highways. 29 The federal interest does not warrant such interference with this state-created privilege. In fashioning nonstatutory equitable relief, the magistrate's court might properly limit the driving privileges of convicted drunk drivers on McClellan Air Force Base or other federal enclaves. In addition, it might forward to the DMV notice of drunk driving convictions in that court pursuant to Cal.Veh.Code § 13363, which authorizes the DMV to suspend "upon receiving notice of the conviction of the person in a state, territory, or possession of the United States . . . of an offense therein which, if committed in this State, would be grounds for the suspension . . . of the privilege to operate a motor vehicle." But where not required for protection of the federal interest, it may neither suspend a state driver's license nor order the state to do so, any more than it could dissolve a state-chartered corporation in federal quo warranto proceedings or sentence criminals convicted in federal court to terms in the state prison.12 30 This limitation on the permissible scope of a federal common law remedy in this case is compelled not only by the congressional policy with respect to federal enclaves "to interfere as little as might be with the authority of the states," United States v. Press Publishing Co., supra, 219 U.S. at 9, 31 S.Ct. at 214, but also by the tenth amendment and federalism restraints implicit in the Constitution as a whole, which place the integral government functions of states and localities beyond the scope of federal authority. National League of Cities v. Usery, 426 U.S. 833, 842-45, 851, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). This Circuit has recently held that the limitation upon the power of Congress recognized in National League of Cities applies equally to the power of the federal courts. Davids v. Akers, 549 F.2d 120, 127 (9th Cir. 1977). And while it is true that in some respects, such as air pollution, the regulation of traffic takes on a "strong regional and interstate character" permitting the cooperation of city, state, and federal authorities, see Friends of the Earth v. Carey, 552 F.2d 25, 38 (2d Cir. 1977), there is little question that the licensing of drivers constitutes "an integral portion of those governmental services which the States and their political subdivisions have traditionally afforded their citizens." National League of Cities, supra, 426 U.S. at 855, 96 S.Ct. at 2476. 31 Accordingly, the order suspending appellant's driver's license is reversed, and the cause remanded to the federal magistrate for formulation of an order consistent with this opinion. 32 REVERSED and REMANDED. 33 ELY, Circuit Judge, concurring and dissenting: 34 I concur in the majority's construction of the Assimilative Crimes Act; however, could I act alone, I would hold that the appeal is moot. This, I would do despite the position that the parties take on the issue of mootness. See DeFunis v. Odegaard, 416 U.S. 312, 315, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). It is quite understandable that they desire a definitive holding and have thus agreed that the appeal is not moot. My disagreement with them, as well as with my Brothers, is founded upon my interpretation of the controlling authorities. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (in absence of a class action, to avoid mootness under the "capable of repetition, yet evading review" doctrine, the particular litigant must demonstrate a reasonable possibility of repetition as to him personally; possibility of repetition as to others is irrelevant); Board of School Comm'rs v. Jacobs, 420 U.S. 128, 129, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975); Gerstein v. Pugh, 420 U.S. 103, 110-11 n.11, 95 S.Ct. 854 (1975); Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); DeFunis v. Odegaard, supra, 416 U.S. at 319, 94 S.Ct. 1704; North Carolina v. Rice, 404 U.S. 244, 247-48, 92 S.Ct. 402, 30 L.Ed. 413 (1971) (holding moot a challenge to the legality of a sentence already served, refusing to invoke collateral consequences doctrine, which applies only to attacks upon a conviction itself). 1 In pertinent part, § 23102 provides: (a) It is unlawful for any person who is under the influence of intoxicating liquor, or under the combined influence of intoxicating liquor and any drug, to drive a vehicle upon any highway. (c) Any person convicted under this section shall be punished upon a first conviction by imprisonment in the county jail for not less than 48 hours nor more than six months or by fine of not less than two hundred fifty dollars ($250) nor more than five hundred dollars ($500) or by both such fine and imprisonment. . . . 2 Section 13201.5 provides that "(a) court may suspend the privilege of any person to operate a motor vehicle, for a period not exceeding six months, upon conviction of driving while under the influence of intoxicating liquor or under the combined influence of intoxicating liquor and any drug. . . ." 3 By its terms, the magistrate's six-month order of suspension expired on October 29, 1977. However, since appellant is challenging the validity of the suspension itself, an unresolved dispute continues to exist. This, together with the fact that appellant remains subject to the challenged authority of the magistrate to suspend his driver's license whenever he drives on McClellan Air Force Base renders the case not moot. Carroll v. Princess Anne, 393 U.S. 175, 179, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968) Furthermore, a six-month suspension of driving privileges presents a situation "capable of repetition, yet evading review" falling under the rule of Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). See Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1972); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Carroll v. Princess Anne, 393 U.S. at 178-79, 89 S.Ct. 347. A declaration of mootness because a suspension order has expired would prevent this issue from ever being litigated by this appellant and by any other person whose driver's license is similarly suspended. Such a determination would allow the district courts to determine the rights of those convicted of drunk driving without opportunity for redress. Finally, the imposition of a criminal sentence has collateral consequences apart from the fact of conviction itself which justify a decision on the validity of the sentence after its expiration. Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 1 L.Ed.2d 393 (1956). As the Court noted in Sibron v. New York, 392 U.S. 40, 55, 83 S.Ct. 1889, 20 L.Ed.2d 917 (1968), Pollard rejected inquiry into the existence of specific collateral consequences in favor of a presumption that such consequences exist. In the instant case, failure of this Court to review would leave appellant with a criminal sentence of suspension imposed under color of the Assimilative Crimes Act. Accordingly, we feel that the issue of the validity of the magistrate's order is appropriate for decision in this case. This conclusion is buttressed by the facts that the mootness argument was not raised by either of the parties and was first presented in supplemental briefs by order of this Court, both parties agreeing that Best's case is not moot, and the underlying issue was argued below and fully briefed before this Court. See United States v. Hole, 564 F.2d 298, 300 n.2 (9th Cir. 1977). 4 Act of March 3, 1825, c. 65, § 3, 4 Stat. 115; see United States v. Sharpnack, 355 U.S. 286, 289, 78 S.Ct. 291, 2 L.Ed.2d 282 (1955) 5 See United States v. Marcyes, 557 F.2d 1361, 1365 (9th Cir. 1977); United States v. Peterson, 550 F.2d 379, 383 (7th Cir. 1977); United States v. Butler, 541 F.2d 730 (8th Cir. 1976) 6 See Note, The Federal Assimilative Crimes Act, 70 Harv.L.Rev. 685, 696 (1957) 7 Cal.Veh.Code § 1803 requires the clerk of court to forward an abstract of any conviction for violation of the Vehicle Code to the DMV, which, pursuant to § 13352, must suspend for a first conviction of drunk driving except where the court does not order suspension 8 Characterization of the nature of the suspension is further clouded by Cal.Veh.Code §§ 13206 and 13550, which provide that where departmental suspension is mandatory (including first convictions for drunk driving where the court orders suspension), the convict must surrender his license to the court, which then forwards it to the department. In addition, Cal.Veh.Code § 13210 describes a procedure whereby the court, if it does not order suspension, may "limit the person's driving privilege" without any DMV involvement 9 See Cotton v. United States, 52 U.S. (11 How.) 229, 13 L.Ed. 675 (1850) (permitting an action of trespass without statutory authorization); United States v. Gear, 44 U.S. (3 How.) 120, 11 L.Ed. 523 (1845) (upholding injunction to restrain waste on public land) 10 See Sanitary District v. United States, 266 U.S. 405, 425-26, 45 S.Ct. 176, 60 L.Ed. 352 (1925) (upholding injunction based on authority of United States to remove obstructions to interstate and foreign commerce); In re Debs, 158 U.S. 564, 583-84, 15 S.Ct. 900, 39 L.Ed. 1092 (1895) (upholding injunction based on postal, interstate commerce, and general welfare powers) 11 There is no doubt, given Wyandotte and Republic Steel, that the federal government could obtain an equitable remedy in a separate civil proceeding based on the policy of the federal criminal statute. Where, as here, the issues in the criminal and civil cases are identical especially given the higher standard of proof in a criminal trial judicial economy militates toward the imposition of both civil and criminal sanctions in the same proceeding. Indeed, the California courts, having defined the sanction of suspension as nonpenal, routinely impose the statutory civil remedy in criminal proceedings 12 Sentencing under the Assimilative Crimes Act presents similar problems. While the Act serves to incorporate state offenses and penalties into the criminal law for federal enclaves, it does not authorize the federal courts to impose punishment exactly as specified in state statutes, but only "like punishment." Thus, were the suspension of one's driver's license held to constitute "punishment" under the Act, the conclusion with respect to the scope of the magistrate's order would be the same

October 17, 1977 78-87 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT Privacy—Persons Writing to the President— Freedom of Information Act (5 U.S.C. § 552e (1976)) This responds to your request for our views as to the means available to protect the privacy of private persons who write to the President and whose letters are referred to the various Federal agencies for response. It is our position that the President and his immediate staff are not agencies or part of agencies within the meaning o f the Freedom o f Information Act (the Act), 5 U .S.C. § 552(e) (1976) and thus private letters addressed to the President are not agency records subject to the Freedom of Information Act so long as they are maintained by the President or his staff. See Attorney G eneral’s 1974 Freedom of Information Amendments Memorandum at 25. However, when such letters are referred to other Federal agencies for reply they will, in the absence of some special arrangement, become agency records subject to the Act. As we understand it, your view is that persons who write to the President ought to be able to do so confidentially and that it would be an invasion of privacy to make their identity publicly available. There are several methods by which their privacy can be maintained. 1. D em onstrable Bailm ent. The ordinary presumption is that any record in the possession of an agency regardless of its origin is an agency record subject to the Act. However, the courts have recognized that the records originating in governmental units not covered by the Act may expressly be “ loaned” to an agency that is subject to the Act without becoming an agency record. Cook v. Willingham, 400 F. (2d) 885 (10th Cir. 1968) (judicial presentencing report in the hands of the Bureau of Prisons); G oland v. Central Intelligence Agency, Civ. No. 76-166, D .D .C ., May 26, 1976 (Congressional Record lent to the Central Intelligence A gency).1 A somewhat similar bailment technique is also used by the Federal Bureau of Investigation and the Civil Service Com­ mission to retain such control as they may have over the public release of certain investigatory records which they originate and subsequently disseminate 'A ffirm ed by the District o f Colum bia Court o f A ppeals, May 23, 1978. 379  to other Federal agencies; the records bear a printed legend that they are the property of the originating and not o f the holding agency. In our opinion, the President could probably use an express bailment, evidenced perhaps by a stamped legend on each letter, to reserve ownership and thus control over its release under the Act. (The reservation of ownership would be particularly credible if all or some are recalled by and returned to the White House after the agencies have prepared responses.) Nevertheless, such an express bailment technique would not be adequate in itself to protect the identity or privacy of private correspondents, because the replies generated by the agencies will ordinarily reveal the name and address of the correspondent and the general thrust of his inquiry, problem, or comment, and these replies— or rather their file copies— will be agency records subject to the Act. While it might be possible for the President to assert ownership of these file copies also, such an assertion would be questionable, and a strong argument could be made that they are agency records subject to the Act because they are generated and maintained by the originating agency in the ordinary course of agency business. Were the President to arrange that all agency copies of replies be physically delivered to him, he could, o f course, remove them from the coverage o f the Act. This alternative, however, seems equally questionable and also administratively unsound in that it would deprive agencies of copies of their own correspondence and, depending upon the nature of the agency response, might violate the Federal Records Act in some circumstances. Pub. L. 90-620, 44 U .S.C . §§ 3101-3314 (1976). 2. Sanitizing R eferrals to the A gencies. When a private letter is referred to an agency, the President could send the agency a copy of the letter from which the name and address of the correspondent have been deleted and in which a control num ber has been substituted. The agency would then draft a proposed reply, using the code num ber o f the incoming correspondence, and send the proposed reply to the White House where the identity o f the correspondent would be decoded and the reply addressed, perhaps as reviewed and retyped on White House letterhead. In this manner, the identity of the correspondent would, in most cases, not be available in agency records and hence preserved from disclosure under the Freedom o f Information Act. We see at least two disadvantages with this method. First, the effort required to respond to private correspondence addressed to the President might be nearly doubled, in that each reply would have to be handled twice— once by the agency and then again in the W hite House. Second, in those cases where the letter contains personal identifying information about the writer which the agency will need in formulating a meaningful reply, such as a personal complaint about obtaining social security or other Federal benefits or permits, this proposed method simply would not work except at the price of precluding a meaningful reply. Yet such letters may well be the ones most deserving both of a responsive reply and of privacy protection because of the personal informa­ tion they may contain. In any case, substituting a code number for the w riter’s name and address offers no privacy protection where the correspondent is writing about the problems o f a relative or friend identified in the body of the letter. 380  • 3. Reliance on the P rivacy Exemption in the Freedom o f Information A ct. In our view, the names and addresses o f private correspondents and other personally identifying data in letters to the President, after referral to agencies for reply, would usually be withholdable under the sixth exemption o f the Freedom of Information Act because disclosure would constitute a “ clearly unwarranted invasion o f personal privacy.” 5 U .S.C . § 552(b) (6) (1976): cf., Wine H obby, U .S .A ., Inc. v. U nited States Bureau o f Alcohol, Tobacco, and Firearm s, 502 F.(2d) 133 (3d Cir. 1974). Almost all such letters either contain some personal information about the writer or a member o f his family, if not information about personal opinions which the writer chooses to communicate to the President but presumably not the the entire public.2 In the ordinary case, a requester would have no justifiable interest in determining the identity of the correspondents; any legitimate interest, such as attempting to determine the mix of citizen correspondence addressed to the President, would be served by making available copies o f the letters which have been sanitized by deleting names and other identifying inform ation.3 While one can reasonably anticipate that a few requests will relate to matters which have a substantial public interest, and in which withholding of identifying information would be improper under the Act because the legitimate public interest in disclosure of identity outweighs the individual’s privacy, it seems to us that disclosure of identification in such rare cases would not be undesirable. To help assure uniform agency implementation of a decision to use the sixth exemption to protect the privacy of correspondents, the President could proceed either (a) by instructing all agencies to preserve from clearly unwarranted invasions the privacy of individuals involved in correspondence referred from the White House, by withholding the name and other identifying data if such correspondence is to be made available in response to requests under the A ct,4 or (b) by requiring that such records be maintained in a “ system of records” as defined in the Privacy Act. 5 U .S.C . § 552a (1976). In the second way, the Privacy A ct’s sanctions for improper disclosure would buttress the protection for the privacy of correspondents. However, such added protection, while stronger than that afforded by a Presidential directive or agency policy unsupported by sanctions, would be no greater in scope: The measure o f the material that could be protected would still be the sixth exemption and in rare instances identities might have to be released in the public interest. Moreover, the use of the Privacy Act is unnecessarily cumbersome because it would 2ln m any, and perhaps m ost, private letters to the President, there would seem to exist a public interest elem ent which should reinforce, rather than counterbalance, the usually m inor invasions of the w riters’ privacy. T his is the public interest, which has First Am endm ent overtones, in protecting the right to petition the President without the chilling effect o f fear o f publicity. O f course, where the writer is com m unicating on behalf o f an organization, privacy considerations would rarely be applicable, and the mix o f public interest factors would be much more likely to call for disclosure. 3C /., Rose v. Air Force. 425 U .S. 352 (1976). “This m em orandum assum es that the Freedom o f Inform ation Act requests for private letters addressed to the President will typically com e from requesters who do not know the identities of the writers o f such letters. W here a request is for letters from named writers, privacy interests would have to be protected by deleting privacy inform ation rather than identifying such information. 381 require agencies which do not presently maintain their referred private correspondence in a Privacy Act system of records to establish a new system of records, thereby subjecting themselves to additional Privacy Act burdens. For example, use o f the Privacy Act would often introduce complications >if the agency to which the letter is referred finds it must contact another agency to develop a meaningful reply. The use of a Presidential instruction with respect to invoking the sixth exemption should suffice. Recom m endation. We believe that, for the reasons discussed above, the privacy of those who write to the President can best be preserved through use of some form of guidance to the agencies to which the correspondence is referred. In effect, the agencies would be told or encouraged, when processing Freedom of Information Act requests for such material to delete personal identifying information from the letters and responses thereto as contemplated by the sixth exemption of the Act. This method should be effective and impose a minimal administrative burden on the agencies concerned. We would be glad to participate in the drafting o f such guidance if it is determined to proceed along these lines. R O B E R T L . S A L O SC H IN . Chairman and T homasC . N e w k i r k . M em ber D epartm ent o f Justice F reedom o f Inform ation Com m ittee O ffice o f L egal Counsel 382 

601 F.2d 1011 202 U.S.P.Q. 401 SURGICENTERS OF AMERICA, INC., an Arizona Corporation,Plaintiff-Appellant,v.MEDICAL DENTAL SURGERIES, CO., an Oregon Corporation dbaMedical Dental Surgicenters, Defendant-Appellee. No. 77-2490. United States Court of Appeals,Ninth Circuit. May 16, 1979.Rehearing Denied Aug. 22, 1979. 1 John Moran, Phoenix, Ariz., for plaintiff-appellant. 2 Paul Gerhardt, Portland, Or., for defendant-appellee. 3 Appeal from the United States District Court for the District of Oregon. 4 Before GOODWIN and ANDERSON, Circuit Judges, and JAMESON,* District Judge. JAMESON, District Judge: 5 Appellant, Surgicenters of America, Inc. (Surgicenters), brought this action against appellee, Medical Dental Surgeries Co., dba Medical Dental Surgicenters (Medical), under the Trademark Act of 1946 as amended, 15 U.S.C. § 1051 Et seq., for infringement of its registered service mark, "Surgicenter." The parties filed cross-motions for summary judgment, based upon agreed facts, 45 exhibits, answers to interrogatories, and two depositions. The district court denied appellant's motion and granted appellee's motion, finding "Surgicenter" was not a lawfully registered service mark. We affirm. Factual Background 6 The basic facts are undisputed, both parties accepting a summary contained in the opinion of the district court. In March, 1970, a month after operating a "facility for one-day surgical care" in Phoenix, Arizona, Surgicenter, Inc., applied for registration of the service mark "Surgicenter" for "services rendered in an in and out surgical facility." On August 31, 1971 the mark "SURGICENTER" was registered to Surgicenter, Inc. "For: PROVIDING FACILITIES FOR DOCTORS TO PERFORM OPERATIONS ON PATIENTS".1 On October 6, 1971, the registration was assigned to appellant. 7 Since the registration of the service mark, Surgicenters has licensed use of the mark in other states.2 The doctors who formed the original corporation have worked since 1968 to popularize their concept of economical one-day surgical care to insure its acceptance by major insurance carriers. 8 In 1962 Medical, an Oregon corporation, filed the assumed business name "Medical Dental Hospital Co." and did business under that name until December, 1972, when the name was changed to "Medical Dental Surgeries Co." In January, 1975, Medical changed its name to "Medical Dental Surgicenters" and filed this business name with the Oregon Corporation Commission. Medical provides facilities for out-patient surgical procedures. 9 On January 28, 1975 Surgicenters notified Medical that Medical's use of the name "Surgicenter" infringed Surgicenters' mark. On June 13, 1975, Surgicenters filed this action to enjoin Medical from further use of the term, to require an accounting and payment of profits for its use since notification, and for damages for infringement Opinion of District Court 10 The district court, in its opinion granting appellee's motion for summary judgment, held that the mark "Surgicenter" was not a lawfully registered service mark because it was "generic" and thus not registrable. The court concluded further that if the term were considered "descriptive" rather than "generic", it had not "developed a secondary meaning in this area in which Medical operates". In a judgment based upon its opinion, the court denied the injunction and demand for an accounting and damages. 11 In determining that the term "Surgicenter" is generic the court concluded that "Surgicenter" is a "coined word of the combination and abbreviation type which clearly connotes a center for surgery". Since the term "surgery center" obviously "would not be capable of registration because it is quite clearly generic", the term "Surgicenter" was likewise found to be generic.3 12 The district court held further: "Although there are undoubtedly those who connect 'Surgicenter' with the Arizona corporation, the consuming public generally understands the word to mean exactly what it says. This is amply demonstrated in the exhibits." Among the exhibits upon which the court relied was a proposed rule of the United States Department of Health, Education and Welfare appearing in 38 Fed.Reg. 313-81 (1973) defining "Health Care Facilities". The definition included "facilities providing surgical treatment to patients not requiring hospitalization (surgicenters), which are not part of a hospital but which are organized and operated to provide medical care to out-patients".4 Other exhibits included magazine and medical journal articles, letters and a television transcript which used the term "surgicenter".5 Contentions on Appeal 13 Appellant contends that it "coined an arbitrary and fanciful word through the combination of two common or ordinary words" and that the trademark Surgicenter is neither generic nor descriptive. It argues that the district court erred in failing to address properly the issue of genericness, used an analysis of descriptiveness to conclude that the word is generic, used "a scalpel technique" as a method of analysis, misapplied the burden of proof, and its opinion is contrary to case law with respect to combination of an abbreviated word. Summary Judgment 14 Summary judgment is appropriate where no material issues of fact exist and where a party is entitled to judgment as a matter of law. Rule 56(c), F.R.Civ.P. Here the parties made cross-motions for summary judgment following extensive discovery. As appellant states in its reply brief:The case was submitted on stipulated facts and the parties agreed that there were no genuine issues of material fact. Where the matter is submitted to the court based upon affidavits, exhibits and certain stipulated facts, and where no testimony was taken, the determination by the court is a question of law, readily reviewable by the appellate court. . . . It is this legal proposition (the conclusion that two abbreviated, ordinary words into a single word created a generic term) which appellant requests this court to review along with other issues of law raised in appellant's opening brief. 15 In other words, this was a trial on a stipulated record and was so intended by the parties.6 There are no genuine issues of material facts. It is a proper case for disposition through summary judgment.7 Validity of the Service Mark 16 (a) Effect of Registration 15 U.S.C. § 1057(b) provides that: 17 A certificate of registration of a mark . . . shall be prima facie evidence of the validity of the registration, registrant's ownership of the mark, and of registrant's exclusive right to use the mark in commerce in connection with the goods or services specified in the certificate, subject to any conditions and limitations stated therein. 18 The district court properly recognized that a "properly registered service mark is presumed to be valid".8 19 (b) Categories of Marks 20 The cases identify four categories of terms with respect to trademark protection: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful. As the district court correctly noted, the lines of demarcation are not always clear, and the "entire area of trade or service marks . . . is fraught with difficulties and ambiguities".9 21 The basic principles of trademark law, including a description of the four categories of mark, are set forth in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9-11 (2 Cir. 1976). The different categories may be summarized as follows: 22 A "generic" term is one that refers, or has come to be understood as referring, to the genus of which the particular product or service is a species. It cannot become a trademark under any circumstances. Abercrombie & Fitch, supra, 537 F.2d at 9-10. 23 A merely "descriptive" term specifically describes a characteristic or ingredient of an article or service. It can, by acquiring a secondary meaning, i. e., becoming "distinctive of the applicant's goods", become a valid trademark. Id. at 10. 24 A "suggestive" term suggests rather than describes an ingredient, quality, or characteristic of the goods and requires imagination, thought, and perception to determine the nature of the goods. A suggestive term is entitled to registration without proof of secondary meaning. Id. at 10-11. 25 An "arbitrary or fanciful" term is usually applied to words invented solely for their use as trademarks and enjoys all the rights accorded to suggestive terms without the need of debating whether the term is "merely descriptive" and with ease of establishing infringement. Id. at 11.10 26 (c) Determination of Genericness 27 In concluding that the term "Surgicenter" is generic the district court found "most pertinent" the case of Cummins Engine Company, Inc. v. Continental Motors Corp., 359 F.2d 892, 894, 53 CCPA 1167, 1169 (1966), where the court affirmed a decision of the Trademark Trial and Appeal Board canceling the registration of the mark "Turbodiesel". In that case the court said in part: 28 We rely primarily upon the 1935 Funk & Wagnalls New Standard Dictionary definitions of "turbine," its combining form "turbo," and of "diesel," and a March 1953 "Flight" magazine article, all of which are reproduced in the board's decision as reported, 132 USPQ at 557. In our view, the definitions alone indicate that "turbodiesel" is a word which by its nature will convey a specific and correct meaning which is such that it cannot become a trademark as a result even of origination and first use. . . . The term "turbodiesel," as we see it, is a natural composite form for a class of engines into which appellant's engines fall. 29 The district court here similarly concluded from dictionary definitions that appellant has "taken two generic terms and combined them into a term which is still generic". The court said: 30 "Surgical" is an adjective defined as "relating to, or concerned with surgeons or surgery." Webster's Third New International Dictionary (1966). "Center" is a noun defined as "a place, area, person, group, or concentration marked significantly or dominatingly by an indicated activity, pursuit, interest, or appeal: a concentration of requisite facilities for an activity, pursuit or interest along with various likely adjunct conveniences," as, "medical center". 31 The court concluded that the challenged service mark "Surgicenter" was simply an "abbreviation of surgical functions as an adjective to identify a center as a concentration of facilities relating to surgeons or surgery".11 32 The district court also relied upon the decision of this court in Rohr Aircraft Corporation v. Rubber Teck, Inc., 266 F.2d 613, 623 (9 Cir. 1959), where the court held that "a generic name, or a name merely descriptive of an article of trade cannot ordinarily be employed as a trademark". The court concluded accordingly that where one party used the mark "Duo Seal" and the other party used "Lock O Seal", the word "seal" described both devices and could not be appropriated as a trademark. 33 Appellant attempts to distinguish both Cummins Engine and Rohr Aircraft on the ground that the courts in those cases did not find the mark generic but descriptive. As the district court noted, however, courts often have difficulty in distinguishing between generic and descriptive terms. This is well illustrated in Application of Sun Oil Co., 426 F.2d 401, 403, 57 CCPA 1147, 1149 (1970) where the majority opinion found the term "Custom Blended" descriptive, without a secondary meaning being established, while a concurring opinion found the term so "highly descriptive" that it could not be accorded trademark rights even if a secondary meaning were established. Other courts have distinguished between a "generic or common descriptive term" and a "merely descriptive term". See, E. g., Miller Brewing Co. v. G. Heileman Brewing Co., supra, 561 F.2d at 79. In Rohr Aircraft, this court referred to "a generic name, or a name merely descriptive of an article of trade". Reading the opinion as a whole we conclude that the court intended to hold that the term in question was generic. Likewise in Cummins Engine, while the court did not use the word "generic", it did find the word "turbodiesel" by its nature conveyed a specific and correct meaning such that it could not "become a trademark as a result even of origination (or) first use". 34 The district court and both parties recognize that in making the sometimes elusive determination of genericness courts have consistently followed the test stated by Judge Learned Hand in Bayer Co., Inc. v. United Drug Co., 272 F. 505, 509 (D.C.S.D.N.Y.1921): "What do the buyers understand by the word for whose use the parties are contending?"12 If buyers take the word to refer only to a particular producer's goods or services, it is not generic. But if the word is identified with all such goods or services, regardless of their suppliers, it is generic and so not a valid mark. King-Seeley Thermos Co. v. Aladdin Industries, Inc., 321 F.2d 577, 579 (2 Cir. 1963).13 35 The test was sharpened by the Supreme Court in Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938). ". . . (T)o establish a trade name . . . the plaintiff must show more than a subordinate meaning which applies to it. It must show that the Primary significance of the term In the minds of the consuming public is not the product but the producer." 305 U.S. at 118, 59 S.Ct. at 113 (emphasis added).14 36 In J. Kohnstam, Ltd. v. Louis Marx and Company, Inc., 280 F.2d 437, 440, 47 CCPA 1080, 1084 (1960), the court held that the trademark "Matchbox Series", as applied to toys packaged in small boxes was descriptive rather than indicative of origin, and was not registrable. The court concluded that even if the applicant for registration had by advertising over a period of some two and one-half years developed a secondary meaning as indicating the origin of the goods, such circumstance could not "take the Common descriptive name of an article out of the public domain and give the temporarily exclusive user of it exclusive rights to it, no matter how much money or effort it pours into promoting the sale of the merchandise". See also CES Pub. Corp. v. St. Regis Publications, Inc., 531 F.2d 11 (2 Cir. 1975), where the court held that the term "Consumer Electronics", as used in the title of a trade magazine within the electronics industry, was generic, and not subject to trademark protection. The court held further that unlike "merely descriptive" terms which can be registered as trademarks by proof of secondary meaning, a "generic" word cannot be validly registered as a trademark even if there is proof of secondary meaning. "The reason is plain enough. To allow trademark protection for generic terms, i. e., names which describe the genus of goods being sold, even when these have become identified with a first user, would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are." 531 F.2d at 13. 37 Appellant argues that there is no "competent evidence as to what potential customers, i. e., doctors or patients understood or identified by the mark 'Surgicenter' ". The district court recognized that while "there are undoubtedly persons who connect 'Surgicenter' with the Arizona corporation,15 the consuming public generally understands the word to mean exactly what it says: This is amply demonstrated in the exhibits". From our examination of the 45 exhibits offered by the respective parties, we agree with the district court. 38 As appellant recognizes, the consuming public is composed primarily of doctors and their patients, as is true with a hospital or other medical facility. The exhibits contain letters from appellant and its counsel to the Department of Health, Education and Welfare, Library of Congress, the Superintendent of Documents, medical schools and other medical facilities,16 Blue Cross organizations, news and medical publications,17 and a physician who had used the term "Surgicenter" in a book entitled "Out Patient Surgery", and his publisher.18 Typical of many responses received by appellant is a letter from L. H. Hughes, M.D., President of Walnut Creek Surgicenter, Walnut Creek, California, dated September 17, 1973: "I was not aware that this name was restricted in any way and we used it in a generic sense only." While Dr. Hughes and other doctors recognized the registration of the mark, it is clear from their letters that they had considered the word a generic term.19 There is nothing in the record to indicate that any potential consumer considered the term "Surgicenter" to mean anything other than a surgical center.20 The district court properly found that the consuming public connected the term "Surgicenter" with the service rather than the server. 39 We recognize that words "which could not individually become a trademark may become one when taken together". Union Carbide v. Ever-Ready, Inc., 531 F.2d 366, 379 (7 Cir.) Cert. denied, 429 U.S. 830, 97 S.Ct. 91, 50 L.Ed.2d 94 (1976), and cases there cited. In Union Carbide the court concluded that the word "EVERREADY" had "acquired a secondary 'meaning' and on that basis the mark was valid". The district court here properly concluded that the term "Surgicenter" had not acquired a secondary meaning.21 Application of ADA Milling Co., 205 F.2d 315, 317, 40 CCPA 1076, 1078 (1953) is a good example of a combination of words resulting in a valid mark. In that case the court found that the trade mark "Startgrolay" for use on poultry feed, "viewed in its entirety", was a valid mark, even though if the mark were dissected, the "Start", "grow" and "lay" separately would be nonregistrable. We find no case, however, which holds that the mere combination of words is sufficient in itself to make a mark registrable. There is a clear distinction between the word "Startgrolay" as applied to poultry feed and "Surgicenter" which obviously means surgical center. ADA Milling was distinguished in Cummins Engine, supra, where the court said: "We do not find the term here (Turbodiesel) to be such a deviation from a natural usage or an unusual unitary combination as to permit registration, in contrast to the terms in In re Ada Milling Co." 359 F.2d at 895, 53 CCPA at 1170.22 The same is true with respect to the term "Surgicenter". 40 In Warner & Co. v. Lilly & Co., 265 U.S. 526, 528, 44 S.Ct. 615, 616, 68 L.Ed. 1161 (1924) the Court held names such as "Coco-Quinine" and "Quin-Coco" could not be appropriated as trademarks, the Court saying in part: 41 The name "Coco-Quinine" is descriptive of the ingredients which enter into the preparation. The same is equally true of the name "Quin-Coco." A name which is merely descriptive of the ingredients, qualities or characteristics of an article of trade cannot be appropriated as a trademark and the exclusive use of it afforded legal protection. The use of a similar name by another to truthfully describe his own product does not constitute a legal or moral wrong, even if its effect be to cause the public to mistake the origin or ownership of the product. 42 (d) Descriptive Marks 43 While a "merely descriptive" term is not generally entitled to protection (15 U.S.C. § 1052(e)), if the applicant for registration can show that a "secondary meaning" has attached to the mark, so that the consuming public connects the mark with the producer rather than the product, the mark can be protected. Carter-Wallace, Inc. v. Procter & Gamble Company,434 F.2d 794 (9 Cir. 1970). The district court found that even if the term "Surgicenter" were considered "descriptive" rather than "generic", "it has not developed a secondary meaning in this area in which Medical operates". 44 The history and policy behind the doctrine of "secondary meaning" and relevant factors to be considered were well summarized in Union Carbide Corp. v. Ever-Ready, Inc., supra. In that case the court assumed the correctness of the finding of the district court that Carbide's name "Everready" was descriptive, but held that Carbide had "clearly established the validity of its mark on the basis of secondary meaning". Substantial direct consumer testimony and consumer surveys demonstrated that "an extremely significant portion of the population associates Carbide's products with a single anonymous source". 531 F.2d at 381.23 There was also substantial evidence of confusion on the part of the consuming public. Id. at 388. 45 The district court properly recognized that one of the indicia of secondary meaning is the likelihood of confusion among buyers, citing Norm Thompson Outfitters, Inc. v. General Motors Corp., 448 F.2d 1293 (9 Cir. 1971). As the district court noted, the parties agree that there has been no actual confusion.24 The court found that there was "no likelihood of confusion", saying in part: 46 The only contact Surgicenters has made with Portland is a letter of inquiry concerning the possibility of establishing a facility. This does not establish any likelihood of confusion. No consumer surveys or extensive advertising campaigns have been presented to prove that consumers connect out-patient surgical centers with Surgicenters' sponsorship only. Indeed, as indicated in footnote 4, (see note 3, Supra ) the evidence is to the contrary. 47 (e) Suggestive and Arbitrary and Fanciful Marks 48 In pointing out the distinction between a "suggestive" term and a "descriptive" term, the court in Abercrombie & Fitch Co., supra, Quoted from Stix Products, Inc. v. United Merchants & Manufacturers, Inc., 295 F.Supp. 479, 488 (S.D.N.Y.1968): 49 A term is suggestive if it requires imagination, thought and perception to reach a conclusion as to the nature of goods. A term is descriptive if it forthwith conveys an immediate idea of the ingredients, qualities or characteristics of the goods. 50 In applying this test to the service mark "Surgicenter", it is clear that the term is descriptive rather than suggestive. 51 The court in Abercrombie & Fitch Co., also cited General Shoe Corp. v. Rosen, 111 F.2d 95, 98 (4 Cir. 1940), where the court distinguished between terms which are "descriptive" and terms which are "arbitrary or fanciful", saying in part: 52 Under the well established rule of trade mark law, a word or phrase which is primarily descriptive of the article to which it is attached may not be appropriated by any one as his exclusive trade mark. (citing cases) On the other hand, an arbitrary or fanciful name, which has no relationship to the product, may be lawfully adopted and monopolized. Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629.25 53 Abercrombie & Fitch recognized also that a word may be in one category for a particular product, and in quite a different one for another, noting, for example, that "Ivory" would be "generic when used to describe a product made from the tusks of elephants but arbitrary as applied to soap". 537 F.2d at 9, n. 6. 54 The cases upon which appellant relies in support of its contention that the word "Surgicenter" is neither "generic" or "descriptive", but rather "suggestive" or "arbitrary and fanciful" are distinguishable. In Coca-Cola Company v. Seven-Up Company, 497 F.2d 1351, 1353 (C.C.P.A.1974) the Court of Customs and Patent Appeals held that the words "The Uncola" were not merely descriptive of soft drinks. The court quoted as applicable the language employed in Vita-Var. Corp. v. Alumatone, 83 F.Supp. 214, 215 (S.D.Cal.1949) "a combination which has enough deviation from the common use of words and parts of words to make its registration as a trade mark valid". The court found a "total failure of the record to indicate that THE UNCOLA is or ever was merely descriptive of, or a common descriptive term for, the product". 55 Similarly in Maremont Corporation v. Air Lift Company, 463 F.2d 1114, 1116-1117, 59 CCPA 1152, 1156-1157 (1972), the court found that the word "Load-Carrier", while suggestive of the function of the class of goods produced (load supporting and dumping units for automobiles, automobile trailers, and small trucks) was "equally suggestive of many other things e. g., wheel barrows, dump trucks, freight cars, steamships and elevators". There is no evidence in the record in this case that the term "surgicenter" is suggestive of anything except a surgical center. 56 Finally, appellant relies heavily on Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 694 (2 Cir. 1961), where the court held that plaintiff had a valid common-law trademark in the term "Poly Pitcher". The court there recognized that the initial test was "what the expression meant to the purchasing public. If it meant a pitcher made of polyethylene it could claim no validity as a trademark; but if its connotation was arbitrary or fanciful, it met the test of a valid trademark." The clear distinction between the evidence here with respect to the term "Surgicenter" and the evidence relating to the term "Poly Pitcher" appears from the court's analysis in Blisscraft : 57 The record is devoid of any worthwhile evidence to show that at the time when plaintiff first began to use the "Poly Pitcher" labels the public generally understood "poly" to be synonymous with polyethylene or that "Poly Pitcher" meant a pitcher which was made of polyethylene. Indeed, it would have been astonishing if it had any such understanding of terminology so essentially technical. We have been referred to no dictionary, general or scientific, which indicates that "poly" meant polyethylene. Webster's New International Dictionary (2d Ed. 1958) defines "poly" as "consisting of many," "a plurality," "a number above the normal." In the absence of any evidence to the contrary, we cannot assume that to members of the public at large the word "poly," either alone or in combination with "pitcher," had any meaning other than that attributed to it by the lexicographer. Unless a word gives some reasonably accurate some tolerably distinct knowledge as to what the product is made of, it is not descriptive within the meaning of trademark terminology. 294 F.2d at 699-700. 58 In contrast, the district court here, on the basis of a careful analysis of the term "Surgicenter" through dictionary definitions and substantial evidence of its generic use by the consuming public, found the term generic, or if not generic, descriptive without having acquired a secondary meaning. Conclusion 59 We conclude that the district court properly found that (1) the term "Surgicenter" is generic and not registrable as a trademark; and (2) in the alternative, if the term is "merely descriptive" of the service, it has not developed a secondary meaning. 60 AFFIRMED. GOODWIN, Circuit Judge, dissenting: 61 Faced with a difficult question in a complex area of law, the district court stated but did not apply the proper test to determine whether a name is generic. Even if the proper test had been applied, defendant's evidence was not sufficient to meet the heavy burden of proof it carried. I. 62 By statute, plaintiff's certificate of registration is prima facie evidence of the mark's validity. 15 U.S.C. § 1057(b). By case law, this means not only that the mark's challenger has the burden of going forward, but also that registration carries with it a "strong presumption of validity". Miss Universe, Inc. v. Patricelli, 408 F.2d 506, 509 (2d Cir. 1969), Quoting Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538, 542 (2d Cir. 1956). Therefore, "the burden of showing genericness (sic) rests squarely on defendants." E. I. DuPont de Nemours & Co. v. Yoshida International, Inc., 393 F.Supp. 502, 523 (E.D.N.Y.1975). See also American Thermos Products Co. v. Aladdin Industries, Inc., 207 F.Supp. 9, 14 (D.Conn.1962), Aff'd sub nom. King-Seeley Thermos Co. v. Aladdin Industries, Inc., 321 F.2d 577 (2d Cir. 1963); 1 J. McCarthy, Trademarks and Unfair Competition 443 (1973). Particularly where, as here, the allegedly infringing name is identical to the registered mark, and its use began after the mark's registration, defendant carries the "burden of explanation and persuasion." Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., 411 F.2d 1097, 1101 (2d Cir. 1969), Cert. dismissed, 396 U.S. 1054, 90 S.Ct. 707, 24 L.Ed.2d 698 (1970). Accord, Bayer Co. v. United Drug Co., 272 F. 505, 509 (S.D.N.Y.1921). The burden "is a heavy one," and "doubts should be resolved in favor of the trademark owner, especially if he can demonstrate having taken appropriate action to counteract or resist indiscriminate use of the mark by the public." E. I. DuPont de Nemours & Co. v. Yoshida International, Inc., 393 F.Supp. at 523-24.1 63 To satisfy the heavy burden imposed on it, defendant had to meet the test of Bayer by proving that buyers of Surgicenters' services understood the name to be generic. The district court acknowledges that this should be its test in awarding summary judgment. Yet the court admittedly relies most heavily on Cummins Engine Co. v. Continental Motors Co., 359 F.2d 892, 53 CCPA 1167 (1966), a case that did not raise the question of buyers' perception of the disputed name. Cummins' "dictionary test" supports the district court's holding that "Surgicenter" is generic because, individually, "surgical" and "center" are in the dictionary. But this merely indicates that neither decision uses the correct test, buyer understanding of the disputed term.2 64 Cummins is at odds with the far more numerous and better-reasoned decisions that eschew a scalpel technique in favor of the required inquiry into what the words, together, mean to the consuming public. E. g., Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 694, 698-702 (2d Cir. 1961). In Blisscraft, the mark "Poly Pitcher" was held to be valid despite the presence of "poly" and "pitcher" in the dictionary. The Second Circuit did not even find the dictionary test urged upon it "worthwhile evidence" of the public's understanding of the term. "In the absence of any evidence to the contrary, we cannot assume that to members of the public at large the word 'poly,' either alone or in combination with 'pitcher,' had any meaning other than that attributed to it by the lexicographer." 294 F.2d at 699. We have chosen to ignore the dictionary test in this circuit. United States Jaycees v. San Francisco Junior Chamber of Commerce, 513 F.2d 1226 (9th Cir. 1975) (affirming district court holding that "chamber of commerce" is not generic over dissent noting presence of term in the dictionary). 65 The dictionary test is wrong because it is irrelevant. How or whether the dictionary defines a single word is not probative of what customers understand by a combination of words or a compound term like "Surgicenter". 66 "It is well settled that a coined word consisting of two words of ordinary meaning may be the subject of a trademark. As stated by Judge Galston in the case of Henry Muhs Co. v. Farm Craft Foods, Inc., D.C., 37 F.Supp. 1013, at page 1015, 'The validity of the term Farmcraft as a trademark is attacked as descriptive because both the words Farm and Craft are said to be general terms and available to the public. But the combination of two descriptive components into a single coined, arbitrary and fanciful word may be a perfectly valid, technical trademark.' (Emphasis mine)." National Trailways Bus System v. Trailway Van Lines, Inc., 222 F.Supp. 143, 145 (E.D.N.Y.1963) (holding "Trailways" valid mark). 67 See also Coca-Cola Co. v. Seven-Up Co., 497 F.2d 1351 (C.C.P.A.1974) ("Uncola" valid mark for soft drink); Maremont Corp. v. Air Lift Co., 463 F.2d 1114, 59 CCPA 1152 (1972) ("Load-Carrier" valid mark for shock absorbers); Application of Colgate-Palmolive Co., 406 F.2d 1385, 56 CCPA 973 (1969) ("Chew 'N' Clean" valid mark for dentifrice); Tigrett Industries, Inc. v. Top Value Enterprises, Inc., 217 F.Supp. 313 (W.D.Tenn.1963) ("Pitch Back" valid mark for baseball backstop and ball-return apparatus); Feathercombs, Inc. v. Solo Products Corp., 306 F.2d 251, 255 (2d Cir.), Cert. denied, 371 U.S. 910, 83 S.Ct. 253, 9 L.Ed.2d 170 (1962) ("Feathercombs" valid mark for hair-retaining combs); Q-Tips, Inc. v. Johnson & Johnson, 206 F.2d 144, 147 n.8 (3d Cir.), Cert. denied, 346 U.S. 867, 74 S.Ct. 106, 98 S.Ct. 377 (1953) ("Q-Tips" not generic mark; "validity of a trade-mark is to be determined by viewing it as a whole"); Enders Razor Co. v. Christy Co., 85 F.2d 195 (6th Cir. 1936) ("Keen Kutter" not generic for cutting tools); W. G. Reardon Laboratories, Inc. v. B & B Exterminators, Inc., 71 F.2d 515 (4th Cir. 1934) ("Mouse Seed" and "Rat Seed" valid marks for rodenticides); Wonder Manufacturing Co. v. Block, 249 F. 748 (9th Cir. 1918) ("Arch Builder" and "Heel Leveler" valid marks for shoe insoles). II. 68 Having cited the proper test of a generic name (Bayer ), the district court proceeded to decide the case before us on a factor irrelevant under that test. I do not dispute that, were the disputed term itself in the dictionary, its generic character might thereby be established. Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 80-81 (7th Cir. 1977) (presence of word "light" in dictionary one indication that word is generic); Henry Heide, Inc. v. George Ziegler Co., 354 F.2d 574, 576 (7th Cir. 1965) (presence of "jujube" in dictionary evidence that word is generic). But the parties admit that plaintiff coined the term "Surgicenter". 69 This also impeaches the district court's holding as a strictly logical matter. The parties stipulate that there was no such thing as a "Surgicenter" until plaintiff invented the name. Yet the district judge held that the mark was generic Ab initio. He held that defendant had Proved that consumers automatically identified the made-up name, admittedly never used before, with a whole class of services produced by plaintiff, defendant, and others from the moment of the word's conception. This seems logically impossible to me. III. 70 What buyers understand by the term "Surgicenter" is a question of fact. Bayer Co. v. United Drug Co., 272 F. at 509; Blisscraft of Hollywood v. United Plastics Co., 294 F.2d at 701. Because it shoulders the burden of proof, defendant must "make a rather clear and convincing showing that the principal significance of the word * * * to the public" was generic. E. I. DuPont de Nemours & Co. v. Yoshida International, Inc., 393 F.Supp. at 528. 71 Defendant has not met its burden here. There is reason to believe that the "consuming public", whose understanding of the term is all-important under Bayer, includes both patients and doctors. As to the latter, defendant presented statements from doctors that the term was generic; plaintiff had statements from physicians that the term was not generic. Further, plaintiff has undertaken many activities to promote its name, linking the term coined to itself and distinguishing its product from that of others. These activities are apparently successful, as many corporations are paying plaintiff for the right to use its name. 72 The evidence concerning doctors was hardly "clear and convincing". More important, however, none of defendant's evidence came from the ultimate consumers of the services plaintiff and defendant provide. Much of it was from trade sources like medical journals and magazine articles that are irrelevant to what patients think of the term. 73 "In attempting to determine what the buying public understood by 'Poly Pitcher' when the defendants began to use the mark, the manner in which the plaintiff and others used the words in trade magazines must be disregarded, for they were not intended for, and presumably did not reach, the eyes of the ultimate purchaser." Blisscraft of Hollywood v. United Plastics Co., 294 F.2d at 701. 74 The same is true of defendant's evidence on the use of "Surgicenter" by the Library of Congress, NBC News and others. 75 I find no case in which a mark was held generic without strong proof by the challenger of what the ultimate consumers those who pay for the product understand by the term. (Indeed, any such holding would violate the unchallenged rule of Bayer, which the majority opinion claims to follow.) In Zajicek v. KoolVent Metal Awning Corp., 283 F.2d 127, 133 (9th Cir. 1960), Cert. denied, 365 U.S. 859, 81 S.Ct. 827, 5 L.Ed.2d 823 (1961), we said that where evidence established that a term was understood as generic in the trade but not by consumers it was a valid mark. In Bayer, those in the trade realized that the contested term referred to plaintiff's product, but to the public it was generic. In selling to the public, therefore, defendant was free to use plaintiff's trademarked name. 76 Defendant has not an iota of evidence about what patients and prospective patients understand by the word "Surgicenters". Neither does plaintiff, but it is defendant that carries the burden. It may be that the public would, in fact, view "Surgicenter" as the district court claims, synonymously with "surgical center". But defendant's merely saying so is not enough. "We have said, so often as not to require citation of authority, that marks must be viewed as the public sees them, i. e., in their entireties. In the present case, the record is devoid of evidence that the buying public would employ the scalpel technique", as claimed by appellees here. Coca-Cola Co. v. Seven-Up Co., 497 F.2d at 1353.3 77 I would reverse. * The Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation 1 The Patent Office examiner found the description of the services in the initial application indefinite. The application was first amended to insert the word "Surgical" before "services". A supplemental amendment incorporated the language now included in the registered mark 2 The district court noted that, "Under its service mark Surgicenters acquires land, zoning and license applications, health permits, building plans and leasing arrangements. It provides personnel training, management, operations manuals, quality control and billing. It contracts with corporations in other cities and states to provide for them for a fee the above services and to allow the use of its service mark." 3 In correspondence with counsel for Fort Wayne Surgicenter, Inc., counsel for appellant initially took the position that "Fort Wayne Surgical Center" would not be an acceptable substitute for "Fort Wayne Surgicenter, Inc." inasmuch "as the words 'Surgical Center' and 'Surgicenter' sound very much the same, and the use of the former . . . is likely to cause confusion in the minds of potential users of our facility." (Letter dated February 16, 1973, App. p. 174). Apparently appellant later concluded, on the basis of advice from other counsel, that it would not press the issue of infringement in the use of "Surgical Center" 4 The final regulation changed "surgicenters" to "ambulatory surgical centers" 5 The footnote listing exhibits reads in part: Plaintiff's answers to defendant's interrogatories abound with examples too numerous to mention. They show the term "surgicenter" was used generically by the Library of Congress, newspapers, periodicals and numerous out-patient facilities not connected with plaintiff. Of particular note is the article by John L. Ford, M.D. and Wallace A. Reed, M.D., the founders of Surgicenters, Inc., entitled The Surgicenter: An Innovation in the Delivery and Cost of Medical Care, ARIZONA MEDICINE (October 1969). The article repeatedly draws the attention of the reader to ". . . the concept of the Surgicenter . . ." in such a way that the impression is summarized in a memo from the Deputy Assistant Secretary of Defense (Fig. 2 of the article). "We have recently learned of a new concept in health facilities which is now under development, known as 'surgicenters'. "We think this is a worthwhile concept . . .. In this connection, attached is a copy of an agreement between a health planning council in Arizona and two physicians in that State who are now developing a surgicenter." (Plaintiff's Supp. Memo Exh. 3) If the plaintiffs used the mark from the very beginning in a way that the public connected the term with the service rather than with the server, then they have contributed to the genericness of the term. The critical period is when the service first hits the market. See Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938). 6 See Flying Diamond Corporation v. Pennaluna & Co., Inc., 586 F.2d 707 (9 Cir. 1978), where this court affirmed a summary judgment, in which the district court had noted that the case was in effect " 'a trial on a stipulated record. There is nothing to weigh, there is no credibility involved' ". 586 F.2d at 713, n. 3 7 See E. g., United States Jaycees v. San Francisco Jr. Cham. of Com., 354 F.Supp. 61, 68-69 (N.D.Cal.1972), Aff'd, 513 F.2d 1226 (9 Cir. 1975) 8 See Maternally Yours v. Your Maternity Shop, 234 F.2d 538, 542 (2 Cir. 1956). This case, like many cited, concerns trademarks rather than service marks. "Generally speaking, however, . . . the decisions relating to trademarks are applicable by analogy to service marks." E. Vandenburgh, Trademark Law and Procedure 1 (2d ed. 1968) 9 The district court in a footnote quoted from this court's opinion in HMH Publishing Co., Inc. v. Brincat, 504 F.2d 713, 716 (9 Cir. 1974): Trademark infringement is a peculiarly complex area of the law. Its hallmarks are doctrinal confusion, conflicting results, and judicial prolixity. The source of this difficulty is that each case involves an effort to achieve three distinct objectives which, to a degree, are in conflict. These are: (1) to protect consumers from being misled as to the enterprise, or enterprises, from which the goods or services emanate or with which they are associated; (2) to prevent an impairment of the value of the enterprise which owns the trademark; and (3) to achieve these ends in a manner consistent with the objectives of free competition. 10 See also Miller Brewing Co. v. G. Heileman Brewing Co., Inc., 561 F.2d 75 (7 Cir. 1977), Cert. denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.2d 772 (1978) 11 Dictionary definitions have been considered in many cases in determining whether a tradename is generic. See, E. g., United States Jaycees v. San Francisco Jr. Chamber of Commerce, supra; Henry Heide, Incorporated v. George Ziegler Company, 354 F.2d 574, 576 (7 Cir. 1965); Miller Brewing Co. v. G. Heileman Brewing Co., supra. While not determinative, dictionary definitions are relevant and often persuasive in determining how a term is understood by the consuming public, the ultimate test of whether a trademark is generic, as discussed Infra 12 In Bayer, the plaintiff was able to show only that specialized buyers (chemists, physicians and druggists) understood the word "aspirin" to refer solely to plaintiff's product. "The crux of this controversy, however, lies not in the use of the word to these buyers, but to the general consuming public . . . ." 272 F. at 510 13 A well-known treatise offers this distinction: . . . (T)he function of a mark is to identify and distinguish the goods or services of one seller from those sold by all others. A mark answers the buyer's question "Who are you? Where do you come from?" But the name of the product answers the question "What are you?" . . . (G)eneric designations tell the buyer what the product is, not where it came from." 1 J. McCarthy, Trademarks and Unfair Competition 405-6 (1973). 14 In Kellogg Co., the Court held that the term "shredded wheat" is generic and no exclusive right to its use may be acquired. There was no basis for applying the doctrine of "secondary meaning" 15 Attached to plaintiff's answers to interrogatories is a list of over 200 physicians to whom facilities were provided by appellant in Phoenix, Arizona. It was stipulated that all physicians who used the service were residents of Arizona 16 Letters were written to facilities using the term "Surgicenter" in Fort Wayne, Indiana; Livonia, Michigan; Walnut Creek, California; Melbourne, Florida; Miami, Florida; and Balu Cynwyd, Pennsylvania; calling attention to the registration of the term "Surgicenter", requesting assurance that the recipient would cease and desist from its use, and indicating that appropriate action would be taken if such assurance were not forthcoming. It is true, as appellant contends, that with the exception of appellee, all of these facilities then recognized the registration of the mark, although many indicated in their responses that they had assumed the term was generic 17 It was stipulated in the pretrial order that the word "Surgicenter" had been used in Newsweek magazine and six medical publications 18 See also discussion, Supra, at pages 1012 and 1013 19 Dr. Reed, one of the founders of Surgicenter, Inc., in a letter to the Administrator of the Michigan Surgicenter said in part: Incidentally, while I recognize the word "surgicenter" is used in a generic sense, I would like to point out that the capitalized name is protected by a registered trademark and cannot be used by others without our specific approval. In a letter to the Foundation for Medical Care, San Diego, California, Dr. Reed wrote in part: As you can see from the enclosed copy of our January 1974 Progress Report to the Community Advisory Committee, you are not the first to use the registered Surgicenter name as a generic form. 20 In this respect Zajicek v. KoolVent Metal Awning Corp. of America, 283 F.2d 127, 133 (9 Cir. 1960), and Enders Razor Co. v. Christy Co., 85 F.2d 195, 197 (6 Cir. 1936), are distinguishable. In KoolVent this court held that "KoolVent " was not "a generic term for items mentioned" in a license agreement, i. e., awnings. In Enders Razor, the court noted that if "Keen Kutter" was a "generic designation of the razor and the blades" it was also a "generic designation for knives, saws, hatchets, etc." 21 See further discussion of Union Carbide under "Descriptive Marks" 22 See also other cases decided by the Court of Customs in Patent Appeals cited in Cummins Engine 23 There is no similar consumer testimony in this case to indicate that a significant portion of the consuming public associate "Surgicenter" with appellant's service 24 It was stipulated that (1) to the knowledge of the parties "no physician has been confused, mistaken or deceived as to the identity of plaintiff's or defendant's business, or has any other person believed that the two businesses are in any way related by reason of their respective uses of the word 'Surgicenter' "; and (2) neither party has ever "received any misdirected mail, telephone calls, inquiries or complaints which were intended" for the other 25 In Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629 (1916) the Court held that the words "The American Girl", adopted in connection with shoes, was a "fanciful designation, arbitrarily selected by complainant's predecessors to designate shoes of their manufacture". The Court distinguished numerous cases where the mark was a geographical or otherwise descriptive term, noting that if the mark in question had been "American Shoes", those cases would be in point, but that "The American Girl" would be as descriptive of "almost any article of manufacture as of shoes; that is to say, not descriptive at all". 240 U.S. at 257, 36 S.Ct. at 271. Here the term "Surgicenter" is descriptive of the service 1 Plaintiff here has shown ample diligence in opposing others' use of its registered, presumedly-valid mark, including the bringing of this suit. It has protested those uses of "Surgicenter" that defendant has offered as proof the name is generic. Following plaintiff's objections, at least one clinic that had adopted the name "Surgicenter" changed its name, and the Government Printing Office suspended sales of a publication using the term 2 "The manner in which the alleged mark has been used in magazines, newspapers, books, Dictionaries, patents, and other publications, is significant as to how it is regarded By the writers thereof. * * * One reason that it would not be determinative (of validity) could be that the writers of those publications would not be representative of the purchasers of the goods or services." E. Vandenburgh, Trademark Law and Procedure 271 & n.19 (2d ed. 1968). (Emphasis added) The district court does not claim that the author of Webster's Third New International Dictionary, on which it relied, is somehow representative of "Surgicenter" users. 3 I confine my dissent to the district court's holding that "Surgicenter" is generic and do not discuss its dictum that, were it not generic, the name would be descriptive without secondary meaning. If "Surgicenter" is invalid, it is because the term is generic: it defines the service. There is nothing descriptive about the term. See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9-10 (2d Cir. 1976); E. Vanderburgh, Trademark Law and Procedure 86-89 (2d ed. 1968). "For example, while 'cellophane' might be a * * * generic name for a sheet of transparent regenerated cellulose, words such as 'tough,' 'strong,' 'shiny,' 'transparent,' etc. would be descriptive terms with respect to that product." Id. at 88 (footnotes omitted)

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: October 31, 2014 ** * * * * * * * * * * * * * * UNPUBLISHED ELENA KARBUSHEVA, * * Petitioner, * No. 13-040V * v. * * Special Master Dorsey SECRETARY OF HEALTH * AND HUMAN SERVICES, * Dismissal Decision; Multiple * Vaccines; Failure to File an Respondent. * Expert Report. * ** * * * * * * * * * * * * * * Elena Karbusheva, Pro Se, Boise, Idaho Julia McInerny, United States Dep’t of Justice, Washington, DC, for respondent. DISMISSAL DECISION 1 On January 11, 2013, Ms. Elena Karbusheva (“Ms. Karbusheva” or “petitioner”) filed a petition, pro se, pursuant to the National Vaccine Injury Compensation Program, 2 alleging that she suffered from “Giana – Barre (sic) syndrome, 3 Landry’s ascends paralyses 4 (sic), lupus, encephalopasy5 (sic), high blood pressure, chronicle 6 (sic) hepatitis B and diabetes.” Petition (“Pet.”) at 1. Ms. Karbusheva states that these diseases occurred after she was vaccinated. Id. 1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post this decision 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 and note (2006)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the undersigned agrees that the identified material fits within the requirements of that provision, such material will be deleted from public access. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa. 3 “Guillain-Barré syndrome” 4 “Land’s Ascending Paralysis” 5 “Encephalopathy” 6 “Chronic” 1  Ms. Karbusheva’s vaccination record shows that she received a number of vaccinations from March 16, 2009, through January 14, 2011. See Petitioner’s Exhibit 9 (“Pet. Ex.”). The information in the record does not show entitlement to an award under the Act. For the reasons that follow, this case is dismissed for insufficient proof. I. Factual Background Ms. Karbusheva was born in Russia on January 6, 1963, but she lived in Uzbekistan just prior to moving to the United States. Pet. Ex. 21 at 1. An overview of Ms. Karbusheva’s medical history is set forth in petitioner’s exhibit 21. She attended medical school in Uzbekistan and then worked as an obstetrician/gynecologist. Id. at 1. In 2009, Ms. Karbusheva came to the United States as a refugee. Id. Since arriving in the United States, Ms. Karbusheva has been seen by many physicians and health care providers. She has filed numerous medical records in this case, some of which will be summarized below in order to provide an overview of the facts that have been reviewed and considered by the undersigned. As stated above, Ms. Karbusheva’s vaccination record shows that she received a number of vaccinations from March 16, 2009, through January 14, 2011. 7 Pet. Ex. 9 at 1-2. On June 28, 2012, Ms. Karbusheva underwent an MRI of her brain which showed “several hyperintense lesions” which were thought to be “early chronic microvascular changes.” Pet. Ex. 17 at 1. An MRI of her cervical and lumbar spine performed on the same day showed cervical “foraminal stenosis” 8 and “multilevel lumbar spondylosis” 9 with a “mass affect on the left S1 nerve root.” Id. at 2. Ms. Karbusheva underwent a physical examination by Dr. Kathleen Sutherland on November 30, 2010. Dr. Sutherland documented that Ms. Karbusheva looked well, was ambulating and that she did not have inflammation of her joints. Pet. Ex. 21. Dr. Sutherland also noted that Ms. Karbusheva had no evidence of significant respiratory limitations but that she 7 On March 16, 2009, Ms. Karbusheva received a hepatitis B vaccine. On March 20, 2009, Ms. Karbusheva received the Td (Tetanus diphtheria) vaccine. On April 16, 2009, and September 16, 2009, she received her second and third hepatitis B vaccinations. On February 1, 2010, Ms. Karbusheva received the 2009-2010 H1N1 vaccine. On February 12, 2010, she received the varicella vaccine. On June 30, 2010, Ms. Karbusheva received the Tdap and Measles, Mumps, Rubella (MMR) vaccines. On August 4, 2010, Ms. Karbusheva received an MMR vaccine. On January 14, 2011, Ms. Karbusheva received another Td vaccination. On February 3, 2011, she received a Fluvirin vaccine. Pet. Ex. 9 at 1-2. 8 “Foraminal Stenosis” is the narrowing of the cervical disc space caused by enlargement of a joint (the uncinate process) in the spinal canal. http://www.spine-health.com/glossary/foraminal- stenosis. 9 Lumbar spondylosis “describes bony overgrowths (osteophytes), predominantly those at the anterior, lateral, and, less commonly, posterior aspects of the superior and inferior margins of vertebral centra (bodies). This dynamic process increases with, and is perhaps an inevitable concomitant, of age.” http://emedicine.medscape.com/article/249036-overview. 2 did complain of “diffuse myalgias and arthralgias.” Id. Dr. Sutherland also noted that Ms. Karbusheva had hypothyroidism. Id. On February 7, 2011, Ms. Karbusheva underwent a neurological consultation with Dr. Jackie J. Whitesell. Ms. Karbusheva complained of numbness in her feet and chronic back pain. Pet. Ex. 34 at 1. Dr. Whitesell noted that Ms. Karbuseheva reported back pain that she attributed to mercury and dioxin exposure in the 1990s. Ms. Karbusheva also reported left sided weakness and vision loss which occurred in 1995, and which Ms. Karbusheva associated with her exposure to toxins. Id. Dr. Whitesell’s impressions were as follows: 1. Numbness and burning pain in her feet…if she has a peripheral neuropathy, it is quite mild. 2. Chronic daily headaches… 3. Abnormal MRI of the brain…However, I think the likelihood of her having MS at this point is low. 4. Neck pain and low back pain… 5. Hearing loss. 6. Vitamin B12 deficiency. Pet. Ex. 34 at 19-20. An EMG study that was performed on April 8, 2011, on Ms. Karbusheva’s left leg showed that Ms. Karbusheva had “evidence of mild subacute or chronic L5/S1 radiculopathy in the left leg without ongoing denervation.” Pet. Ex. 33 at 2. Ms. Karbusheva underwent a neuropsychological consultation on June 2, 2011, with Clay H. Ward, PhD. Pet. Ex. 41 at 3. Dr. Ward reported the following history, as provided by Ms. Karbusheva: The patient…presents with “systematic stress.” She …is having problems with her asthma and pain in her shoulder and back…in the past she has been poisoned with mercury…she also had “micro strokes”…She has been on disability in the past because of the mercury poisoning…this occurred in about 1986 or 1987…in 1995 she had a chloremic allergy reaction…she also had a small stroke in 2009. She is reporting problems with concentration, fatigue and a high level of stress. Pet. Ex. 41 at 3. Dr. Ward’s diagnosis was “major depressive disorder versus adjustment reaction with depressed mood, pain disorder associated with psychological and medical conditions and rule out cognitive disorder.” Pet. Ex. 41 at 4. In a follow up visit on June 28, 2011, Dr. Ward’s diagnosis also included probable “somatization disorder.” Pet. Ex. 41 at 1. Ms. Karbusheva saw Dr. Whitesell in a follow-up visit on July 19, 2011, with a chief complaint of “low back pain.” Pet. Ex. 34 at 11. Dr. Whitesell noted that Ms. Karbusheva had 3 an abnormal MRI which showed “chronic small vessel ischemic change[s]” in the brain. Id. at 13. Dr. Whitesell did not find any evidence of nerve problems but suspected that Ms. Karbusheva’s chronic L5-S1 radiculopathy10 had progressed. Pet. Ex. 34 at 13. In one of Ms. Karbusheva’s most current medical records filed in this case, dated August 14, 2012, neurosurgeon Dr. Ronald E. Jutzy notes that Ms. Karbusheva had a “left L5 and/or S1 radiculopathy” but “no objective reflex loss or motor atrophy.” Pet. Ex 36 at 1. Dr. Jutzy recommended conservative treatment. Id. II. Procedural Background Ms. Karbusheva filed her case pro se, and the case was initially assigned to Special Master Laura Millman. Special Master Millman provided a list of vaccine attorneys for Ms. Karbusheva to contact to assist in representing her. See Order dated January 23, 2013. The case was reassigned to the undersigned on February 11, 2013. An initial status conference was held on April 4, 2013. Ms. Karbusheva participated in the status conference with the assistance of her interpreter, Alexander Bazarsky. Ms. Julia Mclnerny appeared on behalf of respondent. Ms. Maria Keith, the court interpreter, also participated in the status conference with the consent of Ms. Karbusheva. At that status conference, Ms. Karbusheva agreed to try to retain an attorney to represent her. Prior to the status conference, Ms. Karbusheva had filed many of her medical records. During the status conference, she also agreed to file additional information to support her claim. See Order filed April 5, 2013. On April 15, 2013, Ms. Karbusheva filed information regarding her physician visits and documents related to her application for Social Security Supplemental Income. She included a list of 81 health care visits from February 2010 through March 2013. Ms. Karbusheva also filed a VAERs report dated December 17, 2012, and a description of the adverse events which she believes to be related to her vaccinations, including a lengthy description of her health problems, and a list of her medications. On May 3, 2013, Ms. Karbusheva filed duplicates of the records previously filed on April 15, 2013, as well as some immunization records. On June 4, 2013, the undersigned held a second status conference. Ms. Karbusheva appeared representing herself and Ms. Julia McInerny appeared on behalf respondent. A court interpreter again participated with the consent of petitioner. Ms. Karbusheva stated during the status conference that she had not yet obtained counsel to represent her. The undersigned requested that Ms. Karbusheva file the records of the hospitalizations that she mentioned during the status conference, as well as any other records related to her alleged vaccine injury, and a copy of a lawsuit that she filed in state court against the physician who administered the vaccines to her, as discussed during the status conference. Ms. Karbusheva was again encouraged to continue seeking to retain an attorney to represent her in this matter. See Scheduling Order filed June 5, 2013. 10 Radiculopathy is defined as a “disease of the nerve roots, such as from inflammation or impingement by a tumor or bony spur.” Dorland’s Illustrated Medical Dictionary (“Dorland’s”), 32nd Ed. at 1571. 4  On July 10, 2013, Ms. Karbusheva filed a set of documents labeled as “Petition to add Respondent’s to Suit.” This set of documents included a letter from the CEO of a hospital regarding Ms. Karbusheva’s concerns about the treatment she received in the emergency department of that hospital in January and February 2013. The documents also included an email from the American Civil Liberties Union to Ms. Karbusheva, a copy of the civil docket for a lawsuit that Ms. Karbusheva filed in U.S. District Court for the District of Idaho on February 14, 2013, against a total of 31 defendants including various physicians, health centers, and representatives from various health care facilities. The action was dismissed for lack of jurisdiction on March 8, 2013. Also included in the documents filed by Ms. Karbusheva on July 10, 2013, is what appears to be a request by Ms. Karbusheva for this court to provide her with a “neurologist and rheumatologist from another state.” See “Petition to add Respondent’s to Suit”, ECF No. 12, July 10, 2013, PDF pg. 20 of 20. By order dated July 17, 2013, Ms. Karbusheva was again encouraged to retain an attorney to represent her. See Scheduling Order, July 17, 2013. On August 22, 2013, the undersigned ordered that Ms. Karbusheva file any additional records in support of her claim as well as a notice of completion, indicating that all relevant records had been filed, by September 20, 2013. Respondent was ordered to file a response to petitioner’s filings by October 23, 2013. In addition, respondent requested the opportunity to file a motion to dismiss and the Rule 4 report by October 23, 2013. This request was granted. See Respondent’s Motion to Modify July 22, 2013 Scheduling Order, filed Aug. 21, 2013, ECF No. 16, at 2. On September 10, 2013, petitioner filed exhibits 1-208 on CD. The exhibits included a number of documents previously filed, a document entitled “Petition”, a discussion of petitioner’s concerns regarding the care she received at a third-party facility, and what appears to be a request that this court join Ms. Karbusheva’s claims against the State of Idaho to the petition that she has filed in this court. A status conference was held on September 26, 2013. Ms. Karbusheva, respondent’s counsel and a court interpreter participated. During the status conference, Ms. Karbusheva informed the undersigned that she had retained an attorney, Ms. Simina Vourlis, to represent her. Based on this development, all deadlines were suspended to allow Ms. Vourlis to make an appearance in the case. See Order filed September 26, 2013. On October 24, 2013, a consent motion to substitute Attorney Simina Vourlis in place of Ms. Karbusheva was filed and granted. A status conference was held on December 19, 2013. Ms. Vourlis appeared on behalf of Ms. Karbusheva, and Ms. McInerney appeared on behalf of respondent. During the status conference, the parties generally discussed the vaccinations that Ms. Karbusheva received, the medical records and, more specifically, the vaccines which may have been administered to Ms. Karbusheva outside of the applicable statute of limitations period. The parties also discussed the fact that the H1N1 vaccination that Ms. Karbusheva received on February 1, 2010, is not covered by the National Vaccine Injury Compensation Program. Finally, the parties discussed the ambiguity that existed with respect to Ms. Karbusheva’s alleged injuries and the fact that Ms. Karbusheva has filed various pleadings against entities that are not subject to this court’s 5 jurisdiction. As Ms. Vourlis had only recently entered her appearance, she requested additional time to review the petition and the numerous exhibits that had been filed. Petitioner’s counsel was asked to file a status report by February 24, 2014, updating the court on the status of her review of the records. See Order filed December 20, 2013. The next status conference was held on April 24, 2014. Ms. Simina Vourlis appeared on behalf of Ms. Karbusheva. Ms. Julia McInerny appeared on behalf of respondent. By her request, Ms. Karbusheva also participated in the status conference with the assistance of a court translator. During the status conference, Ms. Karbusheva expressed her desire to terminate her attorney-client relationship with Ms. Vourlis. Although the undersigned inquired whether it was possible for Ms. Karbusheva and Ms. Vourlis to continue working together, after hearing Ms. Vourlis’s concerns about proceeding and Ms. Karbusheva’s consent to allow Ms. Vourlis to withdraw as her counsel, the undersigned granted Ms. Vourlis’s motion to withdraw. The undersigned explained to Ms. Karbusheva that at this point, in order to proceed with her case, she would need to file a report from a medical doctor in support of her claim. Ms. Karbusheva inquired as to what type of medical doctor she needed to support her claim and how to locate and retain the expert. The undersigned explained that she could not offer any legal advice to Ms. Karbusheva on how prosecute her claim and encouraged Ms. Karbusheva to seek the advice of another attorney. Ms. Karbusheva was ordered to retain another attorney or to file an expert report in her case by June 23, 2014. If she was unable to do so, Ms. Karbusheva was informed that a Show Cause Order would be issued. See Order filed April 28, 2014. On May 14, 2014, Ms. Karbusheva filed a letter type document with a number of attachments. In these attached documents, Ms. Karbusheva stated that she would represent herself without an attorney or without medical experts. See “Letter” filed May14, 2014, ECF No. 28, at 2. She described her attempts to contact other attorneys to represent her and her ongoing health problem. Ms. Karbusheva also filed emails and letters describing various issues and health problems. Ms. Karbusheva did not, however, file any expert report, or any evidence to support her vaccine injury claim. On June 19, 2014, after another request by Ms. Karbusheva, her deadline to file an expert report or retain an attorney was extended to August 15, 2014. On July 7, 2014, Ms. Karbusheva filed a “Motion for added continue law case for period 2013-2014 that VICP doesn’t work.” Ms. Karbusheva also filed documents, including a second order of dismissal of her lawsuit filed in the U.S. District Court for the District of Idaho and a petition requesting compensation from St. Luke’s Health System, Family Medicine Health Center, and the State of Idaho, seeking twenty million dollars in damages. She also filed a motion to use medical literature in her case and filed several articles on medical conditions. Ms. Karbusheva did not, however, file an expert report. On July 14, 2014, petitioner filed a “Motion to direct me to University Clinic to California State or Taxes 11 (sic) State for exam and diagnosed Lupus and Neurological Diagnose” along with a memorandum. On July 18, 2014, petitioner filed a “Motion to add 11 “Texas” 6 document Health Professionals Certification of Disability.” These filings did not contain an expert report. From June 16, 2014, to September 16, 2014, Ms. Karbusheva sent numerous emails to the undersigned’s law clerk and they have been noted on the CM/ECF docket as informal email communications. On October 31, 2014, copies of the emails were filed as Court’s Exhibits A through K. The undersigned issued an Order to Show Cause on August 25, 2014, ordering Ms. Karbusheva to file an expert report in support of her claim, or her petition would be dismissed. Ms. Karbusheva sent additional emails to the undersigned’s law clerk on July10, 2014, and July 18, 2014. See Court Exhibits F and G. On September 11, 2014, petitioner filed a “motion for a ruling on the record and PDF 01-208.” She also filed a “motion for add my expertise of my health that attached on 21 pages.” To date, Ms. Karbusheva has failed to file an expert report in support of her claim as ordered on August 25, 2014. III. Requirement for an Expert Report or Supportive Medical Records Petitioner bears the burden of proving a prima facie case by a preponderance of the evidence. See 42 U.S.C. § 300aa-13(a)(1)(A); see also Moberly v. Sec’y of Health & Human Services, 592 F.3d 1315, 1320 (Fed. Cir. 2010). To prove causation, petitioner must “show by preponderant evidence that the vaccination brought about [the] injury by providing: (1) a medical theory causally connecting the vaccination and injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of proximate temporal relationship between vaccination and injury.” Moberly, 592 F.3d at 1322 (citing Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). The preponderance standard applies to each element of petitioner’s proof. For example, with regard to the medical theory, the theory must be “persuasive” – that is, specific to petitioner’s case and supported by a “reputable”, i.e., reliable, scientific or medical explanation. Moberly, 592 F.3d at 1322 (holding that “[a] petitioner must provide a reputable medical or scientific explanation that pertains specifically to petitioner’s case”); Althen, 418 F.3d at 1278 (holding that “[a] persuasive medical theory is demonstrated by ‘proof of a logical sequence of cause and effect showing that vaccination was the reason for the injury[,]’ the logical sequence being supported by ‘reputable medical or scientific explanation[,]’ . . .”(citing Grant v. Sec’y of Health & Human Servs., 956 F.2d 1133, at 1148 (Fed. Cir. 1992). A petitioner may not be awarded entitlement under the Vaccine Act based a petitioner’s claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician. See 42 § 300aa-13(a)(1). In this case, because the medical records do not support Ms. Karbusheva’s claims, a medical opinion must be offered in support. Ms. Karbusheva has not offered a supportive expert report in support of her claim. Further, none of Ms. Karbusheva’s treating physicians attribute any of her conditions to her vaccinations. There is also no preponderant evidence in the record of: (1) a medical theory causally connecting the vaccine and Ms. Karbusheva’s injury; (2) a logical sequence of cause 7 and effect showing that the vaccine(s) was the reason for her injury; and (3) a showing of a proximate temporal relationship between the vaccine and his injury. Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005); 42 U.S.C. § 300aa–13(a)(1) (requiring proof by a preponderance of the evidence). IV. Conclusion Therefore, Ms. Karbusheva’s petition is hereby DENIED. Thus, this case is DISMISSED for insufficient proof. In the absence of a motion for review, the Clerk is directed to enter judgment accordingly. IT IS SO ORDERED. _________________________ Nora Beth Dorsey Special Master 8  Notice of filing Court Exhibits A through F Courts Exhibits Date of E-mail A June 16, 2014 B June 26, 2014 C June 29, 2014 D July 1, 2014 E July 1, 2014 F July 10, 2014 G July 18, 2014 H August 1, 2014 I August 5, 2014 J September 9, 2014 K September 16, 2014 9 

IN THE TENTH COURT OF APPEALS No. 10-17-00373-CV TANYA MARIE COX, Appellant v. HUNTER WEBB AND ARNOLD GERIK, Appellees From the 170th District Court McLennan County, Texas Trial Court No. 2016-1337-4 MEMORANDUM OPINION On November 13, 2017, appellant, Tanya Marie Cox, filed a notice of appeal in this matter purportedly challenging an order signed by the trial court on October 27, 2017. However, attached to her notice of appeal is an order signed by the trial court on October 16, 2017, whereby the trial court denied traditional and no-evidence motions for summary judgment filed by appellee, Arnold Gerik. Additionally, appellant’s notice of appeal refers to the trial court cause number as 2016-1337-4.  Nevertheless, after receiving the Clerk’s Record in this matter, we discovered that, in trial court cause number 2016-1337-4, which is the basis for this appeal, the trial court granted summary judgment in favor of Gerik on October 27, 2017. However, the trial court’s October 27, 2017 order did not dispose of appellant’s claims against co-defendant Hunter Webb. As such, the trial court’s October 27, 2017 order entered in trial court cause number 2016-1337-4 is not final. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (noting that an appeal may be taken only from a final judgment); see also Sultan v. Mathew, 178 S.W.3d 747, 751 (Tex. 2005) (“To be final for purposes of appeal, a judgment must dispose of all issues and parties in a case.” (internal citation omitted)). On February 6, 2018, we notified appellant by letter that this appeal is subject to dismissal because appellant appeals from an order that is not final. See TEX. R. APP. P. 42.3, 44.3. We requested a response from appellant showing grounds for continuing the appeal to be filed within twenty-one days of our February 6, 2018 letter. More than twenty-one days have passed, and appellant has not filed a response in this case. We therefore dismiss this appeal for want of jurisdiction. See id. at R. 42.3; see also Sultan, 178 S.W.3d at 751; Lehmann, 39 S.W.3d at 195. AL SCOGGINS Justice Cox v. Webb, et al. Page 2 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal dismissed Opinion delivered and filed March 21, 2018 [CV06] Cox v. Webb, et al. Page 3 

16 F.2d 210 (1926) ALASKA S. S. CO. v. KATZEEK. No. 4834. Circuit Court of Appeals, Ninth Circuit. December 13, 1926. Bogle, Bogle & Gates, of Seattle, Wash., and R. E. Robertson, of Juneau, Alaska, for plaintiff in error. Redman & Alexander, of San Francisco, Cal., for defendant in error. Before GILBERT, HUNT, and RUDKIN, Circuit Judges. GILBERT, Circuit Judge (after stating the facts as above). Error is assigned to the admission of testimony to show that, shortly after the accident, on the renewal of the effort of the crew to remove the boiler, the tackle again broke, causing the boiler to fall. The evidence was offered for the purpose of showing the defendant's negligence in failing to furnish adequate tackle. Upon that ground the court overruled the objection to its admission, and later, upon the ground that the evidence tended to prove the weight of the boiler, as well as the inadequacy *211 of the tackle, the court overruled the defendant's motion to strike out the testimony. Upon the grounds so stated we think the evidence was admissible. It is permissible to adduce evidence of other accidents or injuries occurring from the same cause and near the same time, to show the existence of defects in the property used, and to show that the defendant failed to adopt proper precautions to prevent injury from the defective nature of his appliances. 29 Cyc. 611, 612. This is not a case where evidence of a similar accident was introduced to prove the negligence of the defendant in the particular act declared upon. Here the purpose of the evidence was to show that immediately after the accident the conditions had not changed and that the tackle used by the defendant was defective. By the decided weight of authority evidence of similar accidents may be adduced, when it is given only to illustrate a physical fact before or after the occurrence which is under investigation and the conditions of that occurrence. O'Brien v. Las Vegas & T. R. Co. (C. C. A.) 242 F. 850; Marathon Lumber Co. v. Dennis (C. C. A.) 296 F. 471; Aurora v. Brown, 12 Ill. App. 122; Unterbrink v. City of Alton, 206 Ill. App. 254; Kress & Co. v. Markline, 117 Miss. 37, 77 So. 858, Ann. Cas. 1918E, 310; Cleveland, Columbus, etc., R. Co. v. Newell, 104 Ind. 264, 3 N. E. 836, 54 Am. Rep. 312; Mayor and Aldermen of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; St. Jos. & D. C. R. Co. v. Chase, 11 Kan. 47. It was not error to exclude the answer of the mate of the Cordova to the question whether or not he was surprised, or had expected that the pin or the shackle would break. The purpose of the defendant was to show that it was not guilty of willfulness or wantonness in connection with the accident; but no such willfulness or wantonness was charged in the complaint, and no evidence was offered tending to suggest it. Error is assigned to the denial of the defendant's application for a bill of particulars, and it is urged that the defendant was entitled to know the particulars of the plaintiff's employment and the place where he was at the time of the accident. The complaint alleged that the plaintiff was on a designated wharf in the employment of the owner thereof, and was performing the functions of his employment at the time when the steamship was unloading freight upon the wharf consigned to the owner, and the reply alleged that the plaintiff was lawfully performing his functions upon the wharf with the full knowledge and consent of the defendant. Section 908 of the Compiled Laws of Alaska of 1913 provides that, "when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment." The granting or refusing of a bill of particulars is a matter which rests in the discretion of the court, and the ruling thereon will not be disturbed on appeal, unless upon inspection of the whole record it appears that the refusal has resulted in injustice. Harper v. Harper (C. C. A.) 252 F. 39; Bodine v. First Nat. Bank of Merchantville (D. C.) 281 F. 571; Gimbel Bros. v. Adams Express Co. (D. C.) 217 F. 318. The pleadings in the present case gave the defendant all necessary information as to the nature of the plaintiff's cause of action. The purpose of the bill of particulars which was sought was to obtain evidence. That method of securing evidence in advance of the trial is not permitted. Rev. Stats. § 861 (Comp. St. § 1468); Green v. Delaware, L. & W. R. Co. (D. C.) 211 F. 774. We find no abuse of discretion in the ruling on the motion. Without merit is the contention that the complaint failed to state a cause of action. It alleged that the plaintiff was on the wharf in the performance of his duties to his employer, and it set forth facts sufficient to show that the defendant owed him the duty of ordinary care to protect him from injury. The evidence is clear that the Cordova expected some one to be on the wharf to receive its lines, and it is not disputed that the plaintiff was the first to catch the head line, and that he also assisted in drawing in the stern line. The facts alleged and proven show that he was neither a trespasser nor a mere licensee on the wharf. He was an employé of the company that owned the wharf, and there was evidence that he was required to serve at the wharf as "one of the longshoremen." The defendant saved a general exception to a large number of the instructions which it designated only by number, but it expressed no ground of exception. Such exceptions are insufficient to comply with the rules of practice of the federal appellate courts, which require that the attention of the trial court shall be directed to the questions of law specifically involved. Highway Trailer Co. v. City of Des Moines, Iowa (C. C. A.) 298 F. 71; C. W. Young Co. v. Union Oil Co. of California (C. C. A.) 293 F. 742; Atlantic Coast Line R. Co. v. Raulerson (C. *212 C. A.) 267 F. 694; Jones v. United States (C. C. A.) 265 F. 235. Error is assigned to the refusal of a requested instruction that the burden of proof was on the plaintiff to show the damages which he claimed he sustained, but the defendant overlooks the fact that the court said to the jury: "You are instructed that the burden is on the plaintiff, Katzeek, to prove the extent of the injuries, if any, that he sustained, and that he must prove the same by a preponderance of the evidence." Another request of the defendant was that the jury be instructed to return a verdict in its favor, and it is alleged that there was failure to prove the cause of action alleged in the complaint. The record convinces us, however, that there was evidence to go to the jury to sustain all the essential allegations of the complaint. There was evidence to show the use by defendant of defective appliances. There was evidence tending to show inexperience and incompetence in the manner in which the winchmen performed their services, and there was absence of evidence of contributory negligence on the part of the plaintiff. The judgment is affirmed.

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1163V Filed: September 18, 2019 UNPUBLISHED WAYNE F. GRANT, Petitioner, v. Special Processing Unit (SPU); Attorneys’ Fees and Costs SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner. Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 Dorsey, Chief Special Master: On August 9, 2018, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered on October 4, 2017. Petition at 1. On August 23, 2019, the undersigned issued a decision awarding compensation to petitioner based on the respondent’s proffer. ECF No. 28. 1 The undersigned intends to post this decision on the United States Court of Federal Claims' website. This means the decision will be available to anyone with access to the Internet. 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).  On September 4, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF No. 32. Petitioner requests attorneys’ fees in the amount of $25,756.80 and attorneys’ costs in the amount of $712.49. Id. at 1. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. Id. at 50. Thus, the total amount requested is $26,469.29. On September 4, 2019, respondent filed a response to petitioner’s motion. ECF No. 33. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 requires respondent to file a response to a request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3. Petitioner filed no reply. The undersigned has reviewed the billing records submitted with petitioner’s request. In the undersigned’s experience, the request appears reasonable, and the undersigned finds no cause to reduce the requested hours or rates. The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). Based on the reasonableness of petitioner’s request, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs. Accordingly, the undersigned awards the total of $26,469.293 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel Jimmy A. Zgheib. The clerk of the court shall enter judgment in accordance herewith.4 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master 3This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.1991). 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 

824 F.2d 980 Unpublished dispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Ana M. ORTIZ, Petitioner,v.DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Appeal No. 87-3004. United States Court of Appeals, Federal Circuit. June 19, 1987. Before BISSELL, Circuit Judge, BALDWIN, Senior Circuit Judge, and ARCHER, Circuit Judge. BALDWIN, Senior Circuit Judge. DECISION 1 The decision of the Merit Systems Protection Board (board), Docket No. NY07528610236, removing Ana M. Ortiz (petitioner) from the position of field representative with the Social Security Administration on the basis of insubordination and absence without leave, is affirmed. OPINION 2 Petitioner has challenged removal as so harsh and disproportionate to the offense as to constitute an abuse of discretion. The charges are not challenged. 3 The choice of penalty for employee misconduct is left to the sound discretion of the agency. The court will defer to the agency's choice of penalty unless its severity appears "totally unwarranted." Miguel v. Department of the Army, 727 F.2d 1081, 1083 (Fed.Cir.1984). 4 In light of the gravity of the charges sustained against petitioner, we find no abuse of discretion. The board has analyzed the relevant factors and determined that the penalty is within the bounds of reasonableness and bears a nexus to promoting the efficiency of the service. The board's decision is supported by substantial evidence and is not arbitrary, capricious, obtained without procedures required by law, rule or regulation, or otherwise not in accordance with law. Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984).

826 F.Supp.2d 979 (2011) Shawn JOHNSON, Plaintiff, v. Keith BURNETT in his Individual and Official Capacity, John Does in their Individual and Official Capacities, and Hinds County, Defendants. Civil Action No. 3:09-cv-00734-CWR-LRA. United States District Court, S.D. Mississippi, Jackson Division. March 23, 2011. *980 Carlos E. Moore, Tangala L. Hollis, Moore Law Office, PLLC, Grenada, MS, Juan T. Williams, The Law Office of Juan T. Williams, PLLC, Southaven, MS, for Plaintiff. ORDER GRANTING SUMMARY JUDGMENT CARLTON W. REEVES, District Judge. The above-styled cause is before the Court on Hinds County's Motion for Summary Judgment [Docket No. 57]. The Court has reviewed that filing, the briefs relevant thereto submitted by both parties, and all available evidence, and has concluded that the motion must be granted. FACTS Shawn Johnson brings the instant lawsuit alleging that on December 15, 2006, a Hinds County sheriff's deputy illegally assaulted him outside a night club under color of law. According to Johnson, he visited an establishment called The Spot but soon was escorted outside by someone wearing the uniform of a Hinds County sheriff's deputy. Once the pair exited the building, Johnson contends that he "was struck" by off-duty deputy Keith Burnett "and fell to the ground," after which Burnett kicked Johnson and "pushed [his] face into a hot vehicle." Eventually, Johnson claims, Burnett "put his foot on top of [Johnson's] head" and "placed [him] in handcuffs." Johnson also represents that he was "sprayed in the face with mace and/or `pepper spray'" before eventually being transported to the sheriff's office. Complaint [Docket No. 2] at 2. In time, Johnson brought suit against Burnett and Hinds County in state court under Title 42, Section 1983 of the United States Code, alleging that "the Defendants. . . took actions to deprive [Johnson] of his due process rights under federal laws, equal protection rights under federal laws, and violated other of [Johnson's] civil rights under federal laws." Second Amended Complaint [Docket No. 14] at 3. The case was removed to United States District Court for the Southern District of Mississippi by Hinds County on December 4, 2010 [Docket No. 1]. In time, the two defendants each moved for summary judgment— Burnett on October 19, 2010 [Docket No. 19] and Hinds County on January 6, 2011. The Court granted Burnett's motion on March 17, 2011 [Docket No. 68], leaving Hinds County as the sole remaining defendant. STANDARD OF REVIEW Though motions for summary judgment are filed frequently, not every case is suited for such disposition. Summary judgment is appropriate only 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). The Court must view the evidence in the light most favorable to the non-moving party. Abarca v. Metro. Transit Auth., 404 F.3d 938, 940 (5th Cir.2005). When confronted with these motions, this Court focuses on "genuine" issues of "material" facts. An issue is genuine "if the evidence supporting its resolution in favor of the party opposing summary judgment, together with an inference in such party's favor that the evidence allows would be sufficient to support a verdict in favor of the party." Zisman v. Mason, 2008 WL 879726 at *3 (S.D.Miss.2008) (citing Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir.1987)). A fact is material if it is one *981 which might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Factual disputes that are irrelevant or unnecessary will not be considered. Id. When filing a motion for summary judgment, "the moving party is not required to negate the elements of the nonmoving party's case." Lawrence v. Univ. of Texas Med. Branch at Galveston, 163 F.3d 309, 311 (5th Cir.1999). Moreover, the movant "need not prove a negative when it moves for summary judgment on an issue that the [respondent] must prove at trial. It need only point to an absence of proof on [the non-movant's] part." Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant shows the court that it is entitled to judgment as a matter of law, the burden shifts to the resisting party to demonstrate that summary judgment is not proper. Id. As explained further by the Court in Walker v. J.E. Merit Constructors, Inc., 707 F.Supp. 254 (S.D.Miss. 1988): The non-movant is then obligated to present competent evidence setting forth specific facts to illustrate the existence of a genuine issue of material fact for trial. . . . The resisting party may not create a genuine dispute simply by alleging that a dispute exists. . . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue is for trial. . . . Id. at 257 (citations omitted) (emphasis added). Pointing to and setting forth these specific facts is the responsibility of the non-movant, and a court has no duty whatsoever to sift through the record in search of evidence to support a party's opposition to summary judgment. Adams v. Travelers Indem. Co., 465 F.3d 156, 164 (5th Cir. 2006). See also Fuentes v. Postmaster Gen. of U.S. Postal Serv., 282 Fed.Appx. 296, 300 (5th Cir.2008) (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998)) (not only must the non-movant point to specific facts, he must "articulate the precise manner in which that evidence supports h[is] claim"). "`Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.'" Davis v. Louisville Mun. Sch. Dist., 2010 WL 290956, *2 (N.D.Miss.2010) (quoting Oliver v. Scott, 276 F.3d 736, 744 (5th Cir.2002)). Additionally, "the court resolves factual controversies for purposes of summary judgment in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Zisman, 2008 WL 879726 at *3 (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)). Where there is no proof of contradictory facts, the Court will not assume that the nonmoving party could or would prove the necessary facts. Id. (citing Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1048 (5th Cir.1996)). This Court is ever mindful that, although a useful device, summary judgment "must be employed cautiously because it is a final adjudication on the merits." Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir. 1989); Hulsey v. State of Texas, 929 F.2d 168, 170 (5th Cir.1991). The jury has the responsibility to assess the probative value *982 of the evidence. As a consequence, a court must stay its hand on the question of credibility, and it must not weigh evidence or draw from the facts legitimate inferences for the movant. Strong v. Dept. of Army, 414 F.Supp.2d 625, 628 (S.D.Miss. 2005). ANALYSIS Under Section 1983, municipalities cannot "be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. Dept. of Soc. Serv. of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In other words, a municipality will not suffer liability under Section 1983 pursuant to a traditional theory of respondeat superior. Id. However, a municipality that directly violates a constitutional right through "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" can be held liable under Section 1983. Id. at 690, 98 S.Ct. 2018. In the case at bar, Johnson has provided an excerpt from the Hinds County Sheriff's Office Manual of General Orders which states that the policy of the office will be that "[a]ll subjects to be arrested shall be considered as potentially armed and dangerous." Exhibit B to Johnson's Response in Opposition [Docket No. 64-2] at 2. According to Johnson, "[t]his policy gives law enforcement free reign to exercise excessive force regardless of whether the force is objectively reasonable. The policy in and of itself is subjective, as it allows the officer freedom to use excessive force as a private citizen, regardless of whether they are, in fact, armed and dangerous." Johnson's Memo in Opposition [Docket No. 65] at 12-13. This policy, Johnson contends, condoned an exercise of excessive force in violation of his constitutional right to due process. In support of his position, Johnson relies on the Fifth Circuit's decision in United States v. Stokes, 506 F.2d 771 (5th Cir. 1975), in which that Court held that "the constitutional right to due process of law includes not only the right to be tried in a court of law for alleged offenses against the state, but also a right not to be treated with unreasonable, unnecessary or unprovoked force by those charged by the state with the duty of keeping accused and convicted offenders in custody." Id. at 776. But the inquiry before the Court is not merely whether a genuine issue of material fact exists on the question of whether the beating that Johnson alleges he suffered at Burnett's hands amounted to "unreasonable, unnecessary or unprovoked force," id., in violation of the right to due process. Because the defendant at issue is a municipality, Section 1983 liability can attach only if the evidence in the record, viewed in the light most favorable to Johnson's case, shows "a policymaker; an official policy; and a violation of constitutional rights whose moving force is the policy or custom." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001). The defense does not appear to dispute Johnson's contentions that Hinds County is a policymaker and that the provision memorialized by Exhibit B to Johnson's memorandum is an official policy. Therefore, the question before the Court is whether, when viewed in the light most favorable to Johnson's case, the evidence supports the conclusion that Hinds County's policy of considering "[a]ll subjects to be arrested . . . as potentially armed and dangerous" was the moving force behind a violation of Johnson's right to due process. Based on the evidence to which Johnson refers the Court, that question is answerable only in the negative. Even if one assumes that Johnson suffered a constitutional *983 tort, the affidavits and deposition excerpts submitted alongside the parties' briefs on this matter simply do not demonstrate that Hinds County's policies brought on the injury. The only evidence directly on point arises out of a report of Hinds County Sheriff's Department chief deputy Steve Pickett, whom Hinds County designated as an expert witness. Pickett reported that [t]o the extent any deputy of the Hinds County Sheriff's Department made an arrest without probable cause or used force beyond that necessary to effectuate a lawful arrest of Shawn Johnson on December the 15th, 2006, such action would not have represented the custom, policy, or operating procedures of Hinds County, Mississippi. Rather, such action would have been contrary to the policies of the Hinds County Sheriff's Department. Exhibit 1 to Hinds County's Designation of Experts [Docket No. 11-1] at 2. If Johnson had pointed the Court to any evidence rebutting this conclusion, then a genuine issue of material fact would exist, and Hinds County would not be entitled to summary judgment. But the Court is unable to find any proof that Burnett believed himself to be acting pursuant to Hinds County policy when he arrested Johnson or that Hinds County policy regarding arrests governed Burnett's conduct during off-duty hours. Absent such a link between Hinds County, as a policymaking institution, and the constitutional violation that Johnson alleges he suffered at Burnett's off-duty hands, no jury issue exists on the question of Hinds County's liability. Fifth Circuit precedent on this issue illustrates the connection between policymaker and actor necessary to support a municipality's liability under Section 1983 but absent in the case at bar. In Webster v. City of Houston, 689 F.2d 1220 (5th Cir.1982), aff'd in part and rev'd in part en banc, 739 F.2d 993 (5th Cir.1984), the Court affirmed a jury's finding that the Houston Police Department operated under an unofficial but documented policy of instructing its officers to carry "throw down" weapons—that is, a weapon to be "thrown down" next to a gunned-down, unarmed suspect to support a ruse of self-defense. Webster, 689 F.2d at 1227. In that case, although police officers who shot and killed an unarmed, surrendering suspect were the proximate constitutional tortfeasors, the City of Houston's policy of condonation toward "throw down" weapons left the municipality directly responsible and, ultimately, liable under Section 1983. Similarly, in Duvall v. Dallas County, Texas, 631 F.3d 203 (5th Cir.2011), the Court affirmed the finding of municipal liability in a case where a county jail's policy of deliberate indifference toward the long-term presence of a penicillin-resistant staph infection directly led to a detainee's contraction thereof and subsequent injuries. Id. at 209-10. But no such link has been shown in the instant case. Johnson has identified a specific policy and a potential constitutional violation, but he has offered no evidence connecting the two. And given that the "first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation," City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the negative answer demands that this Court allow Johnson's suit to proceed no farther. For that reason, the Court is obligated to grant summary judgment to Hinds County.

Case: 14-10699 Date Filed: 10/02/2014 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 14-10699 Non-Argument Calendar ________________________ D.C. Docket No. 9:13-cv-80080-KLR INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS SYSTEM COUNCIL U-4, Plaintiff - Appellant, versus FLORIDA POWER & LIGHT CO., Defendant - Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (October 2, 2014) Before TJOFLAT, JORDAN, and COX, Circuit Judges. PER CURIAM:  Case: 14-10699 Date Filed: 10/02/2014 Page: 2 of 4 The facts of this case are well known to the parties. In short, Florida Power & Light (“FPL”) revoked Michael Kohl’s unescorted nuclear access to its Turkey Point nuclear power plant after Kohl was arrested for grand theft. FPL contends that it was required to revoke Kohl’s unescorted nuclear access due to certain Nuclear Regulatory Commission (“NRC”) regulations, which state that an individual must be “trustworthy and reliable” to maintain unescorted access. The International Brotherhood of Electrical Workers, System Council U-4 (“IBEW”) filed a grievance on behalf of Kohl stating that “I Mike Kohl, request that my Nuclear Access be reinstated and I be returned to work and made whole.” After filing this grievance, the IBEW filed a Petition to Compel Arbitration in the United States District Court for the Southern District of Florida. While this petition was pending, FPL lifted its revocation of Kohl’s unescorted access after the state dropped the grand theft charges. FPL then moved for the district court to dismiss the case for want of subject matter jurisdiction because the case was moot. The district court granted FPL’s motion, holding that “[s]ince there is no longer an impediment to Kohl obtaining unescorted access, there is no effective relief the Court could grant via arbitration.” (District Court’s Order, Doc. 27 at 2). IBEW now appeals. We review de novo a district court’s determination of subject matter jurisdiction. Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1340 2  Case: 14-10699 Date Filed: 10/02/2014 Page: 3 of 4 (11th Cir. 2011). And we review de novo a district court’s order denying a motion to compel arbitration. Musnick v. King Motor Co. of Fort Lauderdale, 325 F.3d 1255, 1257 (11th Cir. 2003). IBEW’s contention that the district court could not determine whether the underlying grievance itself is moot is without merit. Though cited by neither party, the United States Supreme Court’s decision in Vaden v. Discover Bank, 556 U.S. 49, 62, 129 S. Ct. 1262, 1273 (2009), makes clear that “a federal court should determine its jurisdiction by ‘looking through’ a [petition to compel arbitration] to the parties’ underlying substantive controversy.” Id. (citing 9 U.S.C. § 4 (2012)). If a district court lacks jurisdiction over the substantive controversy, it lacks jurisdiction to compel arbitration. Id. But here, the district court incorrectly determined that the underlying controversy was moot. The district court acknowledged that IBEW’s grievance on behalf of Kohl “specifically raises the issue of back pay and reinstatement at the Turkey Point facility.” (Doc. 27 at 2). Thus, even if the issue of nuclear access is moot, IBEW’s request that Kohl be returned to his previous job and receive back pay is not. In a footnote, the district court examined the issues of back pay and reinstatement, indicating that back pay and reinstatement are “collateral effect[s] of FPL’s application of NRC regulations and [are] unrelated to the collective 3  Case: 14-10699 Date Filed: 10/02/2014 Page: 4 of 4 bargaining agreement between FPL and IBEW.” (Doc. 27 at 2 n.1). On remand, the district court should consider only whether the collective bargaining agreement provides the arbitrator with authority to adjudicate this dispute, not issues that go to the merits, such as whether the NRC regulations render FPL’s actions unreviewable. See, e.g., International Bhd. of Elec. Workers Local 2150 v. NextEra Energy Point Beach, LLC, --- F.3d ---, No. 13-3851, 2014 WL 3895757 at *4 (7th Cir. Aug. 11, 2014) (“[W]e do not hold that the arbitrator may…review and overturn [defendant’s] revocation of [plaintiff’s] unescorted access privileges….[T]he arbitrator may well find the decision unreviewable….But the potential weakness of [plaintiff’s] claim on the merits is no defense to the arbitrability of this dispute, as a threshold question.”). Consequently, we vacate the district court’s order denying IBEW’s Motion to Compel Arbitration and remand the case to the district court with instructions to determine whether FPL’s determination of “access rights” falls within the arbitration provisions of IBEW and FPL’s collective bargaining agreement. See Anders v. Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1027 (11th Cir. 2003) (citing Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452, 123 S. Ct. 2402, 2407 (2003) (holding that “gateway matters,” such as the scope of an arbitration provision, should be determined by courts and not arbitrators)). VACATED and REMANDED WITH INSTRUCTION. 4 

884 F.2d 74 Henry HEWES, Plaintiff-Appellant,v.Robert ABRAMS, Attorney General of the State of New York,Intervenor-Appellee,New York City Board of Elections, Defendant-Appellee. No. 1568, 89-7589. United States Court of Appeals,Second Circuit. Argued Aug. 28, 1989.Decided Sept. 1, 1989. Henry Hewes, New York City, plaintiff-appellant, pro se. Dennis J. Saffran, New York City, Asst. Atty. Gen. for the State of N.Y. (Robert Abrams, Atty. Gen. of the State of N.Y., of counsel), for intervenor-appellee. Ellen B. Fishman, New York City, Asst. Corp. Counsel of the City of New York (Peter L. Zimroth, Corp. Counsel of the City of New York, of counsel), for defendant-appellee. Before FEINBERG and NEWMAN, Circuit Judges, MISHLER, District Judge.* PER CURIAM: 1 Pro se plaintiff-appellant Henry Hewes appeals from an order, entered on May 5, 1989, of the United States District Court for the Southern District of New York, Charles S. Haight, Jr., J., denying Hewes's motion for a preliminary injunction, and granting the cross-motion to dismiss of intervenor-appellee Robert Abrams. Appellant, who is the Right to Life Party candidate for Mayor of New York City and a would-be candidate in the Republican primary for that office, challenges the constitutionality of section 6-136(2) of the New York Election Law. This section requires a prospective candidate in a primary to present a petition signed either by five percent of the registered voters of that candidate's party, or 10,000 such voters, whichever is less, in order to be placed on the ballot. Appellant argues that section 6-136(2) allows a candidate from a party with a large enrollment--such as the Democratic Party--to qualify for the ballot with a number of signatures representing a substantially lower percentage of the total enrollment of that candidate's party than does a candidate from a party with a small enrollment. Appellant claims that section 6-136(2) thus violates the Equal Protection Clause by placing an undue burden on prospective candidates from minority parties. We affirm substantially for the reasons stated by Judge Haight in his thorough opinion, reported at 718 F.Supp. 163 (S.D.N.Y.1989). * Honorable Jacob Mishler, Senior United States District Judge for the Eastern District of New York, sitting by designation

Matter of Teabout v Albany County Sheriff's Dept. (2020 NY Slip Op 00012) Matter of Teabout v Albany County Sheriff's Dept. 2020 NY Slip Op 00012 Decided on January 2, 2020 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 2, 2020 526922 [*1]In the Matter of the Claim of Michele A. Teabout, Appellant, vAlbany County Sheriff's Department et al., Respondents. Workers' Compensation Board, Respondent. Calendar Date: November 15, 2019 Before: Egan Jr., J.P., Clark, Devine and Aarons, JJ. Law Firm of Alex Dell, PLLC, Albany (Nicholas A. Fusco of counsel), for appellant. Walsh & Hacker, Albany (Peter J. Walsh of counsel), for Albany County Sheriff's Department and another, respondents. Aarons, J. Appeal from a decision of the Workers' Compensation Board, filed December 14, 2017, which denied claimant's request for reconsideration and/or full Board review. In 1997, claimant sustained a work-related injury to her foot and a claim for workers' compensation benefits was established. The claim was subsequently amended twice to include other injuries. The self-insured employer thereafter raised the issue of whether claimant violated Workers' Compensation Law § 114-a and, following a hearing, a Workers' Compensation Law Judge found that claimant violated the statute. A penalty of a rescission of awards, as well as a disqualification of future awards, was imposed. In a September 2017 decision, a panel of the Workers' Compensation Board upheld the Workers' Compensation Law Judge's determination. Claimant submitted an application for reconsideration and/or full Board review. In a December 2017 decision, the Board denied the application. Claimant appeals. We affirm. Initially, we note that claimant has appealed solely from the December 2017 decision denying her application for reconsideration and/or full Board review. As a consequence, our review is limited to whether the Board's denial of claimant's application was arbitrary or capricious or otherwise constituted an abuse of discretion (see Matter of Singletary v Schiavone Constr. Co., 174 AD3d 1240, 1242 [2019]; Matter of Oparaji v Books & Rattles, 168 AD3d 1209, 1209 [2019]; Matter of Ali v Liberty Lines Tr., 131 AD3d 1288, 1289 [2015]). On appeal, claimant directs her arguments towards her perceived errors with the Board's September 2017 decision. The merits of that decision, however, are not properly before us (see Matter of Duncan v Crucible Metals, 165 AD3d 1377, 1378 [2018]; Matter of Sheng v Time Warner Cable, Inc., 131 AD3d 1283, 1284 [2015], lv dismissed 26 NY3d 1060 [2015]). Because the record discloses no new evidence that was previously unavailable, no material change in condition or any failure by the Board to consider the relevant evidence in reaching its ultimate decision, we find that the denial of claimant's application for reconsideration and/or full Board review was not arbitrary, capricious or an abuse of discretion (see Matter of Seck v Quick Trak, 158 AD3d 919, 921 [2018]; Matter of Bland v Gellman, Brydges & Schroff, 151 AD3d 1484, 1489 [2017], lv dismissed and denied 30 NY3d 1035 [2017], cert denied ___ US ___, 139 S Ct 240 [2018]; Matter of Amaker v City of N.Y. Dept. of Transp., 144 AD3d 1342, 1343 [2016]). Egan Jr., J.P., Clark and Devine, JJ., concur.

16 F.3d 421NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. C.H. PATRICK; Intertech; Sinochem International ChemicalsCo.; Sinochem Shandong Import & Export Corp.;and Kwong Fat Hong Chemicals, Ltd.,Plaintiffs-Appellants,v.The UNITED STATES, Defendant-Appellee,andSandoz Chemicals Corporation, Defendant. No. 94-1006. United States Court of Appeals, Federal Circuit. Dec. 16, 1993. 1 APPEAL DISMISSED. ORDER 2 The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is 3 ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.

707 F.2d 1024 83-1 USTC P 9415 Reverend Joseph J. KLEINSASSER, Individually and on Behalfof Susie KLEINSASSER, deceased, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 81-3625. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 9, 1982.Decided June 7, 1983. Gregory R. Schwandt, Church, Harris, Johnson & Williams, Great Falls, Mont., for plaintiff-appellant. Libero Marinelli, Jr., Washington, D.C., for defendant-appellee. Appeal from the United States District Court for the District of Montana. Before CHOY and FLETCHER, Circuit Judges, and MacBRIDE,* District Judge. CHOY, Circuit Judge: 1 This is a tax-refund suit brought by Reverend Joseph J. Kleinsasser on behalf of himself and his now-deceased wife, Susie Kleinsasser. Reverend Kleinsasser (hereinafter "taxpayer") is a member of a tax-exempt religious organization that is subject to taxation in accordance with I.R.C. Sec. 501(d). Taxpayer argues that he is entitled to the investment tax credit provided by I.R.C. Sec. 38(a) on his 1972 and 1973 tax returns. The court below granted the Government's motion for summary judgment. Kleinsasser v. United States, 522 F.Supp. 460 (D.Mont.1981). Reluctantly, we affirm.I. Background 2 The taxpayer is a member of the Milford Colony in Wolf Creek, Montana. Milford Colony is an incorporated Hutterite community and a unit of the Hutterische Church Society. This society, which dates back to the early 1500's, is an organization of Protestant Christians who live a communal life in colonies of between 80 and 100 members. There are over 30 such colonies in Montana. Colony members take a vow of poverty and engage in agricultural pursuits. Since the individual Hutterites have no personal property, all expenses, both communal and individual, are paid out of a common treasury. 3 The Hutterites do not vote, but they do participate in civic activities that do not conflict with their religion. They do not accept old age pensions, social security payments and the like from the government because they choose to care for their own aged and disabled. The Hutterites accept the legitimacy of taxation and have a consistent record as conscientious taxpayers. 4 Religious communities such as Milford Colony are tax exempt under I.R.C. Sec. 501(d), which provides: Religious and Apostolic Organizations 5 The following organizations are referred to in subsection (a) [which allows tax exemption]: Religious or apostolic associations or corporations, if such associations or corporations have a common treasury or community treasury, even if such associations or corporations engage in business for the common benefit of the members, but only if the members thereof include (at the time of filing their returns) in their gross income their entire pro rata shares, whether distributed or not, of the taxable income of the association or corporation for such year. Any amount so included in the gross income of a member shall be treated as a dividend received. 6 Accordingly, members of Sec. 501(d) organizations file individual tax returns, and pay income tax on their pro rata shares of organization income. The organization itself must file a partnership tax return, even though it pays no tax. Treas.Reg. Sec. 1.6033-2(e). 7 I.R.C. Sec. 38(a) allows an investment tax credit for certain acquisitions of depreciable property. Such property is called "section 38 property." Farm equipment and machinery purchased by the Colony in 1972 and 1973 would have definitely qualified for the Sec. 38(a) credit but for I.R.C. Sec. 48(a)(4). Section 48(a)(4) excludes from section 38 property treatment "[p]roperty used by an organization ... which is exempt from the tax imposed by this chapter [i.e., the income tax]" unless the property is used in "an unrelated trade or business the income of which is subject to tax under section 511." Taxpayer's refund-suit contention is that Sec. 48(a)(4) does not preclude a member of a Sec. 501(d) organization from taking a pro rata tax credit on otherwise qualifying Colony purchases. II. Discussion 8 Taxpayer's argument for allowance of a pro rata share of an investment tax credit may be summarized as follows: When Congress excluded property used by tax-exempt organizations from Sec. 38(a) tax-credit treatment, it did not mean to deny tax credits to taxpaying members of Sec. 501(d) organizations. This is because Sec. 501(d) organizations are actually partnerships, and should be taxed accordingly. Eligibility for tax credits is also established by reference to the congressional intent behind both the tax credits and the reasons for excluding property used by tax-exempt organizations from Sec. 38(a) investment tax-credit treatment. 9 This argument fails because of the unambiguous language of the relevant statutes and regulations. 10 A. Characterization of Section 501(d) Organizations 11 Section 501(d) was intended to provide tax relief for religious organizations that have a common or communal treasury. Without Sec. 501(d), the income of a religious corporation such as the Milford Colony would be subject to the regular corporate income tax at the corporate level, and, if distributed to organization members, the individual income tax at the shareholder level. If the corporate income were not distributed, the corporation would pay both the corporate income tax and the accumulated earnings tax. Section 501(d) eliminates the corporate level of taxation and leaves a single tier of individual income taxation. The scanty legislative history suggests that this single tier of taxation was believed to be the fair way to tax members of Sec. 501(d) organizations.1 12 Taxpayer argues that Sec. 501(d) creates a form of partnership. As such, the members of a Sec. 501(d) organization should be taxed as partners. Although the Sec. 501(d) organization itself is tax exempt, the individual members are not, and are thus not precluded from taking advantage of the Sec. 38(a) investment tax credit. 13 Taxpayer advances a variety of arguments to compel the conclusion that Sec. 501(d) organizations are, in fact, partnerships. He stresses that the Internal Revenue Service has tacitly deemed Sec. 501(d) organizations to be partnerships by requiring them to file partnership tax returns. By contrast, all Sec. 501(c) tax-exempt organizations (charitable organizations) file a special Form 990 return. Treas.Reg. Sec. 1.6033-2(a). The liability for members of Sec. 501(d) organizations is determined through application of partnership accounting principles. Even this court once suggested that Congress intended to create "an association somewhat akin to the ordinary association or partnership in which each member has a definite, though undivided, interest in the business conducted for the common benefit of the members, as well as a common interest in the community treasury and property," although these comments were labeled "gratuitous remarks." Riker v. Commissioner, 244 F.2d 220, 230 (9th Cir.) (discussing the 1939 Code predecessor of Sec. 501(d)), cert. denied, 355 U.S. 839, 78 S.Ct. 50, 2 L.Ed.2d 51 (1957). Accordingly, taxpayer argues that he should be treated as a partner of an ordinary partnership and allowed his pro rata share of an investment tax credit. 14 There is no question that Sec. 501(d) organizations bear a fair resemblance to that entity known as a partnership. But under the applicable statutes, Sec. 501(d) organizations simply cannot be characterized as partnerships. 15 The mere filing of a partnership return does not turn a Sec. 501(d) organization into a partnership. Blume v. Gardner, 262 F.Supp. 405, 413-14 (W.D.Mich.1966), aff'd, 397 F.2d 809 (6th Cir.1968). The partnership tax return allows the Internal Revenue Service to determine how much income must be reported by organization members. It is not a concession of partnership status. 16 More substantively, the Code defines "partnership" in such a way that Milford Colony cannot possibly qualify: Partnership and partner 17 The term "partnership" includes a syndicate, group, pool, joint venture, or other unincorporated organization, through or by means of which any business, financial operation, or venture is carried on, and which is not, within the meaning of this title, a trust or estate or a corporation; and the term "partner" includes a member in such a syndicate, group, pool, joint venture, or organization. 18 I.R.C. Sec. 7701(a)(2) (emphasis added). The Milford Colony was organized as a Montana corporation on November 26, 1946, and has remained incorporated since. A corporation cannot be a partnership for federal income tax purposes. See O'Neill v. United States, 410 F.2d 888, 893 (6th Cir.1969); United States v. Empey, 406 F.2d 157, 170 (10th Cir.1969). Additionally, there is evidence that Congress intended to treat Sec. 501(d) organizations as corporations. Section 501(d) itself describes the pro rata share allocated to each member as "dividend." The Internal Revenue Service has previously concluded that this language prevented the membership share from being considered a partnership share. Rev.Rul. 58-328, 1958-1 C.B. 327, 328-29. 19 Moreover, corporate status has conferred specific benefits upon Milford Colony. Were the Colony a partnership, the members might have to pay self-employment tax. As dividend recipients, the members do not have to pay this tax. Rev.Rul. 58-328, supra. This advantage accompanies all the usual benefits of corporate form that accrue to an entity (although limited liability is of little use to members of a community who have pooled all of their property into the corporate treasury). It is well established that corporate form is not to be disregarded for tax purposes unless the corporation is created for illegitimate purposes or conducts no business activities. See, e.g., Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 438-40, 63 S.Ct. 1132, 1133-35, 87 L.Ed. 1499 (1943); Sherwin v. United States, 320 F.2d 137, 155 (9th Cir.1963), cert. denied, 375 U.S. 964, 84 S.Ct. 482, 11 L.Ed.2d 414 (1964); Esmond Mills v. Commissioner, 132 F.2d 753, 755-56 (1st Cir.), cert. denied, 319 U.S. 770, 63 S.Ct. 1432, 87 L.Ed. 1718 (1943). 20 B. Application of Section 48(a)(4) to Section 501(d) Organizations 21 Even if the members of Milford Colony could be considered partners in a partnership, they would still be precluded from taking an investment tax credit on the Colony's 1972 and 1973 purchases of farm equipment. The investment tax credit may only be taken on section 38 property. I.R.C. Sec. 48(a)(4) states that property "used" by a tax-exempt organization may be treated as section 38 property only if the property was used "in an unrelated trade or business the income of which is subject to tax." Treas.Reg. Sec. 1.48-1(j) defines property "used" by a tax-exempt organization as "(1) property owned by the organization ...."2 Taxpayer stipulated, and the lower court found, 522 F.Supp. at 462, that the farm equipment was not used in an unrelated trade or business. (Regarding the logic of this finding, see infra pp. 1028-1029.) The lower court further found that the farm equipment was purchased and owned by Milford Colony, Inc., a tax-exempt organization. 522 F.Supp. at 462-63. So, even if the members of Milford Colony were to be considered taxable partners, they could not take a tax credit on the Colony's purchases of farm equipment because property owned by a tax-exempt organization and not used in an unrelated business is not section 38 property. 22 Taxpayer seeks to avoid the force of this argument through analogy to Xerox Corp. v. United States, 656 F.2d 659 (Ct.Cl.1981). Xerox concerned I.R.C. Sec. 48(a)(5), which states, inter alia, that property used by the United States may not be treated as section 38 property. The Internal Revenue Service had disallowed Xerox's claim for an investment tax credit on machines it had apparently leased to the government. Xerox conceded that if the machines were in fact leased to the government, they would not qualify as section 38 property. However, Xerox argued, and the Court of Claims so held, that the machines were not leased, but rather provided to the government as an integral part of a copying service. 656 F.2d at 677. Treas.Reg. Sec. 1.48-1(k), parallel to Sec. 1.48-1(j), defines property used by the government as property owned or leased by the government. Since Xerox's machines were neither owned nor leased by the government, I.R.C. Sec. 48(a)(5) did not exclude them from treatment as section 38 property. There is nothing in this factual holding by the Court of Claims to support taxpayer's assertion that the court should look past the undisputed ownership of property by tax-exempt Milford Colony and find that the express language of Treas.Reg. Sec. 1.48-1(j) should be ignored. 23 C. Legislative History and Purpose of the Section 38(a) 24 Investment Tax Credit and the Section 48(a)(4) Limitation 25 Taxpayer's only remaining argument is that a denial of the investment tax credit to members of Sec. 501(d) organizations is contrary to congressional intent. Since the plain language of the Code and its regulations clearly denies to taxpayer the credit he seeks, we survey the legislative record for "clear contrary evidence of legislative intent." National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974). 26 The Sec. 38(a) investment tax credit was enacted as part of the Revenue Act of 1962, Pub.L. No. 87-834, 76 Stat. 960. The credit was intended to spur economic growth by encouraging investment and capital formation. S.Rep. No. 1881, 87th Cong., 2d Sess. 10, reprinted in 1962 U.S.Code Cong. & Admin.News 3297, 3314. At least one stated objective is fully applicable to taxpayers such as the Hutterites: "The objective of the credit is to reduce the net cost of acquiring new equipment; this will have the effect of increasing the earnings of new facilities over their productive lives and increasing the profitability of productive investment." Id. 27 By contrast, the stated reason for excluding property used by a tax-exempt organization from section 38 property treatment does not appear to apply very well to the Hutterites or any other Sec. 501(d) organization. The full legislative explanation for the Sec. 48(a)(4) exclusion is as follows: 28 Property used by a tax-exempt organization (other than in a business to which the unrelated business income tax applies). The limitation on the allowance of the credit in this case is designed to prevent an investment for use in connection with an exempt function from decreasing any tax on an unrelated trade or business. 29 S.Rep. No. 1881, 87th Cong., 2d Sess. 16, reprinted in 1962 U.S.Code Cong. & Admin.News 3297, 3319. This legislative purpose has little relevance to Sec. 501(d) organizations because the "unrelated trade or business" concept itself has no application to Sec. 501(d) organizations. 30 When Congress enacted Sec. 48(a)(4), its apparent focus was upon Sec. 501(c) charitable organizations. These organizations are tax exempt except for business operations that do not relate to the function for which the organization was granted its exemption. I.R.C. Sec. 513(a) defines "unrelated business or trade" as 31 any trade or business the conduct of which is not substantially related (aside from the need of such organization for income or funds or the use it makes of the profits derived) to the exercise or performance by such organization of its charitable, educational, or other purpose or function constituting the basis for its exemption under Sec. 501 .... 32 (Emphasis added.) I.R.C. Sec. 511 imposes a tax on this unrelated business income, and Sec. 512 defines the taxable income of an unrelated business or trade. For example, an exempt scientific organization that sells endorsements of laboratory equipment would have its endorsement income taxed, since product endorsement is not substantially related to the purposes for which the organization was granted its exemption. Treas.Reg. Sec. 1.513-1(d)(4)(iv), example (1). The objective of the unrelated business income tax is to prevent unfair competition by tax-exempt organizations when they compete against entities subject to tax. Treas.Reg. Sec. 1.513-1(b); see Bittker & Rahdert, The Exemption of Nonprofit Organizations from Federal Income Taxation, 85 Yale L.J. 299, 316-26 (1976). 33 Nothing about the doctrine of "unrelated trade or business" has any relevance to a Sec. 501(d) organization because this organization is granted its exemption not because of function, but because of form. It is totally unrestricted in function. Indeed, Sec. 501(d) specifically allows the organizations it exempts to engage in business and thus compete with nonexempt entities. The only requirements for the exemption are that there be a common treasury, that the members of the organization include pro rata shares of organization income when reporting taxable income and, implicitly, that the organization have a religious or apostolic character. Once this requirement of form is fulfilled, the exempt organization is unlimited as to function. It can farm, as the Milford Colony does, or engage in manufacturing, or any other business or combination of businesses. It is definitionally impossible for a Sec. 501(d) organization to have unrelated trade or business income. If the organization had income that it failed to allocate to its members, it would simply lose its exemption altogether. 34 The unlimited scope of a Sec. 501(d) organization's allowable trade or business supports an inference that Sec. 48(a)(4) has no readily identifiable purposes in excluding Sec. 501(d) organizations from taking advantage of the Sec. 38(a) tax credit. Section 48(a)(4)'s stated purpose is to prevent tax-exempt organizations from using credits from tax-exempt functions to reduce the tax burden on nonexempt functions, and thus establish a competitive advantage that Sec. 511 was designed to eliminate. Since a Sec. 501(d) organization cannot, by definition, have unrelated business income, it accordingly cannot use tax-exempt operations to shelter nonexempt income.3 35 Our conclusion from this brief statutory exegesis is that the exclusion of Sec. 501(d) organizations from the tax credit offered by Sec. 38(a) does not seem to advance any articulated legislative purpose. But it is equally clear that there is nothing in the legislative record to suggest that Congress meant to exempt Sec. 501(d) organizations from the sweep of Sec. 48(a)(4). The lack of clear contrary legislative intent gives us no choice but to enforce the plain language of the statute. III. Conclusion 36 We cannot put an equitable gloss on the clear language of the Internal Revenue Code. The statutory inequity involved in this case, if there is one, may only be remedied by Congress. We realize that, in light of the Hutterites' religiously based abstention from secular politics, it may ring hollow to advise the members of Milford Colony to go to Congress for relief. But it is from that body alone that relief is available. 37 AFFIRMED. * The Honorable Thomas J. MacBride, Senior United States District Judge for the Eastern District of California, sitting by designation 1 The only legislative history on Sec. 501(d) is this excerpt from the Congressional Record concerning the enactment of Sec. 101(18) of the 1939 I.R.C., the predecessor to Sec. 501(d): It has been brought to the attention of the committee that certain religious and apostolic associations and corporations, such as the House of David and the Shakers, have been taxed as corporations, and that since their rules prevent their members from being holders of property in an individual capacity the corporations would be subject to the undistributed-profits tax. These organizations have a small agricultural or other business. The effect of the proposed amendment is to exempt these corporations from the normal corporation tax and the undistributed-profits tax, if their members take up their shares of the corporations' income on their own individual returns. It is believed that this provision will give them relief, and their members will be subject to a fair tax. 80 Cong.Rec. 9074 (1936) 2 Treas.Reg. Sec. 1.48-1(j) reads in full: Property used by certain tax-exempt organizations. The term "section 38 property" does not include property used by an organization (other than a cooperative described in section 521) which is exempt from the tax imposed by chapter 1 of the Code unless such property is used predominantly in an unrelated trade or business the income of which is subject to tax under section 511. If such property is debt-financed property as defined in section 514(b), the basis or cost of such property for purposes of computing qualified investment under section 46(c) shall include only that percentage of the basis or cost which is the same percentage as is used under section 514(a), for the year the property is placed in service, in computing the amount of gross income to be taken into account during such taxable year with respect to such property. The term "property used by an organization" means (1) property owned by the organization (whether or not leased to another person), and (2) property leased to the organization. Thus, for example, a data processing or copying machine which is leased to an organization exempt from tax would be considered as property used by such organization. Property (unless used predominantly in an unrelated trade or business) leased by another person to an organization exempt from tax or leased by such an organization to another person is not section 38 property to either the lessor or the lessee, and in either case the lessor may not elect under Sec. 1.48-4 to treat the lessee of such property as having purchased such property for purposes of the credit allowed by section 38. This paragraph shall not apply to property leased on a casual or short-term basis to an organization exempt from tax. Note that this regulation gives a very narrow scope to the Sec. 48(a)(4) exclusion, since "use" could conceivably include any sort of utilization, with or without lease or sale. Taxpayer does not challenge the validity of Treas.Reg. Sec. 1.48-1(j); indeed, the regulation is never even mentioned in either of taxpayer's briefs. 3 See also 6 J. Mertens, Law of Federal Income Taxation Sec. 34.41 (1975) (stating, rather cryptically, that Sec. 501(d) organizations are not subject to the tax on unrelated business income) The Government offers two justifications for the Sec. 48(a)(4) exclusion, though neither is supported by any statutory or legislative evidence. First, the Government argues that since groups such as the Hutterites live simple, nonmaterialistic lives, a tax credit would not be an incentive to invest in capital. This, of course, makes little logical or economic sense. One of the stated purposes of the investment tax credit is to make capital acquisition less expensive; to the extent the Hutterites desire to use their income to make capital purchases, they will purchase more if they are allowed an investment tax credit. Further, the Sec. 501(d) exemption is not limited to nonmaterialistic sects; the members of a Sec. 501(d) organization could live in luxury as long as all income is allocated pro rata and reported on the members' individual tax returns. The Government also argues that the loss of an investment tax credit is the price the Hutterites pay for an exemption from a tier of corporate taxation. This contention may well describe the state of the law, but there is little evidence that it was for that reason that Congress made property owned or used by Sec. 501(d) corporations ineligible for the investment tax credit.

720 P.2d 704 (1986) Lisa Jo MORELLI, Appellant, v. Robert J. MORELLI, Respondent. No. 16705. Supreme Court of Nevada. June 26, 1986. *705 Edward B. Horn, Reno, for appellant. Bradley & Drendel, Thomas Drendel, Reno, for respondent. OPINION PER CURIAM: This appeal arises out of a settlement agreement between respondent and appellant's mother (hereinafter wife), entered into in March 1977. The settlement agreement was later ratified, approved and incorporated as part of the decree of divorce. That agreement provided that respondent would pay alimony to the wife until 1982. The alimony payment included funds for child support. The agreement also provided that in the event of the wife's death or remarriage, respondent would remain obligated to pay $475 per month per child for child support. The agreement further specified that respondent would pay child support until each child reached the age of majority, died, married or was emancipated, provided, however, that such payments would continue until twenty-two years of age for each child who attended college and maintained a "C" average or better. Finally, the agreement provided that respondent would also pay the costs of tuition for college "as the parties may reasonably agree upon as the college or other school most appropriate for attendance by such child or children." At the time the agreement was entered into, appellant was fourteen years old. The wife died about two years later. After living for a time with respondent, appellant decided to move in with another family. At that time, respondent paid the family $5,400 for appellant's support until she turned eighteen. After appellant's eighteenth birthday, respondent paid no additional child support. Appellant started college in the fall after graduation from high school. She always maintained better than a "C" average. The district court found that respondent was responsible for the costs of appellant's tuition, but was not responsible for child support arrearages due, in part, to appellant's lack of standing to enforce such payments. For the reasons set forth below, we reverse and remand to the district court. Appellant contends that she does have standing to enforce the provisions of the property settlement agreement. We agree. It is clear that appellant is an intended third party beneficiary of the agreement between her parents. Lipshie v. Tracy Investment Co., 93 Nev. 370, 566 P.2d *706 819 (1977). It is also clear that the agreement includes specific provisions in case of the wife's death. Normally courts are reluctant to give children standing to enforce the payment of child support because the party directly entitled to receive such payments, usually the custodial parent, is responsible for managing the child's financial needs and accordingly, should and ordinarily would seek enforcement. However, courts have recognized that special circumstances may arise that give the child standing. In Drake v. Drake, 89 A.D.2d 207, 455 N.Y.S.2d 420 (1982), the Supreme Court of New York addressed the case of a child who sued to enforce the terms of a separation agreement between her parents. In that case, the court determined that the child lacked standing, however, the court stated: We have no doubt that circumstances may arise, such as death or disability, or outright refusal of a contracting parent to seek enforcement of periodic support provisions for a child, which would give a child the necessary standing to enforce the agreement. Id., 455 N.Y.S.2d at 424. The special circumstances giving rise to the recognition of standing in a child to enforce an order of support exist in the case before us. We conclude that appellant has standing. Respondent entered into a contract wherein he agreed to pay child support. There is no evidence in the record of any defense that would relieve respondent of his responsibilities under that contract. The agreement specifically provides that respondent will pay child support until each child reaches the age of twenty-two if the child attends college and maintains at least a "C" average. The evidence in the record shows that appellant fulfilled these requirements. Generally, a contract will be interpreted in accordance with the intentions of the parties. See Club v. Investment Co., 64 Nev. 312, 182 P.2d 1011 (1947). Nevertheless, respondent asks this Court to uphold the decision of the trial court as to child support because appellant did not communicate with him and he did not know she was in college. The uncontroverted evidence reflects, however, that respondent wanted no contact from his daughter. In Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 424 P.2d 101 (1967), this Court stated, "an interpretation which makes the contract or agreement fair and reasonable will be preferred to one which leads to harsh or unreasonable results." Id. at 112, 424 P.2d 101. To excuse respondent of his contractual obligation due, in part, to his own desire not to have any communication from his daughter would be unreasonable. Therefore, respondent has a contractual duty to pay appellant $475 per month from the time she was sixteen to the time she reached the age of twenty-two. Finally, the contract also provides that respondent will "pay the cost of tuition for the college or other school as the parties may reasonably agree upon as the college or other school most appropriate for attendance by such child or children." That provision requires the reasonable agreement of the parties. However, the parties are the husband and wife. Once the wife died, the provision could no longer operate. Respondent contends that appellant, as a third party beneficiary, steps into the shoes of the wife. Such an interpretation is a misstatement of the law. A third party beneficiary who seeks to enforce a contract does so subject to the defenses that would be valid as between the parties. Britton v. Groom, 373 P.2d 1012 (Okl. 1962). However, the wife's death makes the compliance with that provision impossible— it does not shift the responsibility to appellant. Therefore, the district court was correct in finding that respondent is liable to appellant for the costs of her tuition. In accordance with the foregoing, respondent must pay $475 per month in child support for ten months of 1979, all of 1980, all of 1981, all of 1982, all of 1983 and seven months of 1984. This amounts to 65 months at $475 per month for a total of $30,875 in child support. Respondent paid $5,400 of the $8,075 due for appellant's support for the seventeen months before *707 she turned eighteen. We, therefore, conclude that respondent should receive an offset in the amount of $5,400 against the total child support owed. However, when an amount is due under a contract and it is not paid when due, interest is payable. NRS 99.040 provides: When there is no express contract in writing fixing a different rate of interest, interest must be allowed at the rate of 12 percent per annum upon all money from the time it becomes due. This means that each of the child support payments should accrue interest from the date each payment was due. We therefore remand this case to the district court for a determination of interest owing on the child support arrearages and for entry of judgment consistent with this opinion.[1] NOTES [1] Justice Cliff Young voluntarily recused himself from consideration of this case and took no part in its disposition.

166 Ga. App. 812 (1983) 305 S.E.2d 656 MALLORY v. THE STATE. 65991. Court of Appeals of Georgia. Decided June 6, 1983. David J. Kelly, for appellant. Thomas H. Pittman, District Attorney, Robert C. Wilmot, Assistant District Attorney, for appellee. McMURRAY, Presiding Judge. Defendant and a co-defendant were indicted for the offenses of armed robbery and kidnapping. In separate counts both defendants were indicted as recidivists, and the co-defendant was indicted for the offense of possession of a firearm by a convicted felon. A motion for severance was filed and granted and the defendant and co-defendant were tried separately. One of the defendant's defenses was that he was an unwilling accomplice with reference to the entire occurrence which was due solely to the actions and conduct of his *813 co-defendant. He was convicted and sentenced as to the three counts against him and now appeals. Held: 1. Where, in a legal investigation, conversations and similar evidence are facts to explain conduct they are admitted in evidence, not as hearsay, but as original evidence. See OCGA § 24-3-2 (formerly Code § 38-302). During the course of the trial, a detective was allowed to testify as to the facts and circumstances surrounding his investigation of the armed robbery and kidnapping of the service station employee involved here. He related several conversations he had with various police officers and other persons in an effort to learn the identity of the defendant. The state clearly offered the statements given to the detective only to explain his conduct and to ascertain his motives for the arrest of the defendant, and the trial court properly instructed the jury to consider those statements only for that purpose. See Bennett v. State, 49 Ga. App. 804 (176 SE 148); Davis v. State, 242 Ga. 901, 906 (6) (252 SE2d 443). However, counsel continued to object to the alleged hearsay of the detective in setting forth his investigation to learn the identity and location of the defendant and co-defendant. The detective had obtained information by talking to a third individual. The detective was then asked what did he do after talking to the third party and learning that the person identified as Mike was with the co-defendant on the morning of the robbery. The detective did not properly respond to the question but injected that this third individual had informed him that on the night of the robbery the co-defendant "had called from Tifton, Georgia, here and told him that him and Mike had robbed an old man in Tifton at a service station and that he had wrecked his car and he wanted him to come after him." Whereupon, counsel moved for mistrial in the absence of the jury contending that these were various out of court statements made by several other individuals not directly involved in this case, that is, hearsay upon hearsay as to what the co-defendant whose trial had been severed had told the third party who in turn told the detective. No objection was made that the answer was not responsive to the question asked but objection was that it also was in violation of Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476), and Hamilton v. State, 162 Ga. App. 620 (1) (292 SE2d 473). During rebuttal the co-defendant was called as a witness and testified against this defendant. The sole enumeration with reference to the motion for mistrial is that the trial court erred in allowing hearsay testimony. This testimony was offered for the avowed purpose of explaining the witness' conduct. This enumeration of error is not meritorious even though it is quite clear that this evidence was injected into the case by the detective and was prejudicial. Nevertheless, the trial court so *814 instructed the jury that the testimony would be considered not for the truth of the matter stated but only as it may tend to explain the conduct of this witness. In Bell v. State, 141 Ga. App. 277 (2) (233 SE2d 253), this court considered a police officer's testimony relevant to a conversation with an informant in which the informant related another conversation which he had overheard, and based on Lloyd v. State, 139 Ga. App. 625 (2) (229 SE2d 106); and Braden v. State, 135 Ga. App. 827, 829 (3) (219 SE2d 479), and the original evidence law (OCGA § 24-3-2 (Code Ann. § 38-302), supra) it was not error when the court properly instructed the jury as to such testimony. The admission of such evidence was not subject to the objection made. There is no merit in this complaint. 2. Defendant next contends that the trial court erred in failing to instruct the jury on all of the lesser included offenses of armed robbery even though there was a timely written request for such instruction. He contends that the cases of Lockett v. State, 153 Ga. App. 569, 570 (1) (266 SE2d 236); and Huffman v. State, 153 Ga. App. 203 (2) (265 SE2d 603), require a reversal based upon the written request to charge. First of all, the only request to charge filed in this case was a request that the court charge as to the offense of robbery, that is, by the use of force, intimidation or by sudden snatching. We find no such request as to any lesser included offenses as to armed robbery. Clearly the charge of armed robbery here was based upon the use of an offensive weapon showing the taking of property of another from the person and the immediate presence of another by use of such offensive weapon, a revolver. In Holcomb v. State, 230 Ga. 525, 527 (198 SE2d 179), the Supreme Court held robbery by intimidation was a lesser included offense of armed robbery and held it would not be error to fail to charge on robbery by intimidation if the evidence did not "demand" a charge on that offense, citing Smith v. State, 228 Ga. 293, 294 (185 SE2d 381). In the case sub judice, all the evidence proved the greater offense of armed robbery. Consequently, the trial court did not err in failing to charge on the lesser included offense of robbery by intimidation. See Clempson v. State, 144 Ga. App. 625, 626-627 (3) (241 SE2d 495); Jordan v. State, 239 Ga. 526, 527 (2) (238 SE2d 69). There is no merit in this complaint. 3. The court did not err in failing to specifically charge the jury on the law of justification and coercion inasmuch as the charge and the evidence as a whole adequately and fairly presented the defendant's theories of the case, that is, that he was only incidentally involved in the commission of the crimes (armed robbery and kidnapping). The defendant's testimony was not that he was coerced into commission of the crime, but that the co-defendant on his own initiative had robbed the victim and forced him into the automobile *815 and that he (defendant) was at all times attempting to talk the co-defendant out of committing the crime and that he had nothing to do with either the robbery or the kidnapping. We note here that the trial court fully charged that each essential element of the crime must be proven by the state beyond a reasonable doubt; defendant is innocent until proven guilty; the mere presence of the defendant at the scene would not be sufficient to convict; and mere suspicion that he had committed a crime would be insufficient to convict. Consequently, we find no merit in this complaint. We also note that as in Booker v. State, 247 Ga. 74 (274 SE2d 334), an affirmative defense need not be specifically charged if the case as a whole is fairly presented to the jury. Judgment affirmed. Shulman, C. J., and Birdsong, J., concur.

704 F.Supp.2d 600 (2010) Donald A. BOOS, Raymond D. Johnson, and Wanda N. Myers, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. AT & T, INC., BellSouth Corporation, and the BellSouth Telephone Concession Plan, Defendants. Civil Action No. SA-07-CA-727-XR. United States District Court, W.D. Texas, San Antonio Division. March 18, 2010. David Weiser, Jeremy D. Wright, Kator, Parks & Weiser, P.L.L.C., Max Renea Hicks, Law Office of Max Renea Hicks, Austin, TX, Marc I. Machiz, Cohen Milstein Sellers & Toll, PLLC, Philadelphia, PA, Michelle C. Yau, Robert Joseph Barton, Cohen, Milstein, Hausfeld & Toll, P.L.L.C., Washington, DC, for Plaintiffs. Deborah E. Hryb, Patrick W. Shea, Paul, Hastings, Janofsky & Walker LLP, New York, NY, Geoffrey Amsel, AT & T Legal Department, Dallas, TX, for Defendants. *601 ORDER XAVIER RODRIGUEZ, District Judge. On this date, the Court considered Defendants AT & T, Inc.'s and BellSouth Corporation's Motion for Summary Judgment (docket no. 79), Plaintiffs' Motion for Partial Summary Judgment (docket no. 81), and the responses and replies thereto. The issue presented in both motions is whether a benefit known as "telephone concession" provided to BellSouth retirees living outside of Defendants' service area is an ERISA pension plan. After careful consideration, the Court finds that Plaintiffs have failed to conclusively establish that the plan is an ERISA pension plan or to raise a material issue of fact with regard to the issue. The Court will therefore deny Plaintiffs' Motion for Partial Summary Judgment and will grant Defendants' Motion for Summary Judgment. I. Factual and Procedural Background A. Telephone Concession The summary-judgment evidence indicates that telephone concession—the practice of offering free or discounted telephone land-line services and toll reimbursements as a concession to telephone company employees and retirees—has been in use since at least the 1920s. Def. ex. 1. Documents from the 1950s indicate that telephone concession was provided by "Ma Bell" to its employees so that the company could reach supervisors and employees responsible for providing services, to build morale, to allow employees to become familiar with the product in order to promote the product, and to obtain constructive criticism from employees about the product. Def. Ex. 2; Def. Ex. 3. Though there were variations among the local operating companies, Ma Bell generally offered Class A Concession, a100% discount on charges for local exchange services and installation and a reasonable amount of toll service for management and supervisory employees, employees with thirty or more years of service and retirees on a pension, and corporate directors, and Class B Concession, a 50% discount on the charges for local exchange service and installation (with variations on toll reimbursement) for all other employees after six months of service. Def. Ex. 3 at ATTBS0000858. Ma Bell did not consider concession to be taxable income for its employees, and no amount of concession had been treated as compensation to the persons using the service. Def. Ex. 3 ATTBS000855-881. At least by 1982, before the 1984 court-ordered divestiture, Ma Bell had also extended a reimbursement to certain retirees who resided outside Bell's service area and thus could not receive discounted service. Def. Ex. 4 at ATTBS0001211-16. Also by this time, Ma Bell viewed telephone concession as a benefit for its retirees. Def. Ex. 4 ATTBS0001211; Def. Ex. 4 ATTBS0001215 (processing of concession was handled by the "Employees Benefit Committee."). The summary-judgment evidence also indicates that Ma Bell and its employees viewed telephone concession as part of employees' compensation. Court-ordered divestiture of Ma Bell occurred in 1984, and BellSouth Corporation was created as one of seven separate regional Bell operating companies, consisting of the Southern Bell and South Central Bell telephone operating companies. Docket no. 79 at 5. BellSouth implemented a concession program, and concession under BellSouth's plan was considered a benefit to employees and retirees. Def. Ex. 5 ATTBS0001169-79. The evidence shows that BellSouth has had a single policy document governing concession for in and out-of-region employees and retirees. The 1984 concession plan sets forth the policy of BellSouth "to reimburse its employees, *602 retirees and directors (active and retired) for all or a portion of the amounts charged for residence local exchange services and intra-LATA toll service"[1] and "to provide residence equipment to employees at a discount." Def. Ex. 5 ATTBS0001169. The 1984 plan stated that "[a]ll nonmanagement employees, entry level management employees and all retirees may be reimbursed for all or a portion of the amounts charged for basic local exchange service[2] provided for the benefit of the employee/retiree and his immediate family." Def. Ex. 5 ATTBS0001170. Entrance level managers and non-management employees with six months but less than thirty years of service were reimbursed for 40% of the amounts charged for all local services; employees with thirty or more years of service, all retirees, and all management employees were reimbursed for 100% of the amount charged for basic local service and 40% of the amounts charged for additional residence exchange services; certain higher level managers were reimbursed for 100% of amounts charged for all reasonable and adequate local service at one location; and active and retired officers and directors would be reimbursed for 100% of amounts charged for all reasonable local service at two locations. Def. Ex. 5 ATTBS0001170. With regard to concession reimbursements for persons residing out of BellSouth's service area, the Plan provided that "[a]ll active employees, retirees, and directors residing in the territory of a telephone company not a part of BellSouth Corporation . . . receive the same reimbursements as those described" for in-region employees, retirees, and directors. Def. Ex. 5 ATTBS0001170. Further, "[r]etirees [were] entitled to the same local service reimbursement as they received prior to retirement; however, in no case, anything less than 100% reimbursement for basic local service." Id. Employees and retirees were also eligible for various intra-LATA toll discounts and equipment discounts. Non-management employees with six months but less than thirty years of service received 20% of an amount up to $25.00 of eligible intra-LATA calls per month; non-management employees with thirty years of service and all non-management retirees were reimbursed 100% of an amount up to $25.00 of eligible intra-LATA calls per month; management employees and retirees were reimbursed for 100% of up to $50.00 of eligible intra-LATA calls per month; and active and retired officers and directors received 100% reimbursement on all reasonable, eligible intra-LATA calls. Id. All retirees could purchase any type of equipment "at the appropriate discount." Id. ATTBS0001171. To receive concession, employees submitted their telephone bills, and were reimbursed on their paycheck. Def. Ex. 5, ATTBS0001172. Retirees forwarded their bills to the Corporate Benefit Office serving them, where a "Sundry Expense Voucher" would be prepared for reimbursement. Def. Ex. 5 ATTBS0001172. BellSouth issued a revised policy on telephone concession, effective April 1, 1985. Def. Ex. 7. The 1985 document states that it is the policy of BellSouth "to allow all the employees and retirees . . . an appropriate discount on the regular tariff rate for residence local exchange services provided *603 by Southern Bell and South Central Bell, including related non-recurring charges and intra-LATA toll service." Id. ATTBS0001316. It provided that "[a]ll employees and retirees may be furnished local exchange service at discounted rates for the benefit of the employee/retiree and his immediate family for usual residential purposes at one location." Def. Ex. 7 ATTBS0001317. All employees with six months but less than thirty years of service received a 40% discount on local services; employees with thirty years of service and those retiring after April 1, 1985 received a 100% discount on "the central office line, one additional listing, touchtone, custom calling features and customer line charge" and a 40% discount on all additional concession-eligible services; post-divestiture retirees (retired between January 1, 1984 and April 1, 1985) received a 100% discount on "the central office line, one additional listing, touchtone, custom calling features and customer line charge"; and pre-divestiture retirees received the same concession for which they were eligible under the plan applicable at divestiture. Id. ATTBS0001317. All employees with thirty years of service and retirees could also receive 100% discount on non-recurring charges associated with concession-eligible services, while other employees received a 40% discount. Id. Further, the 1985 plan provided that "[a]ll employees, and retirees may be furnished a toll service discount on intra-LATA calls for the benefit of the employee/retiree and his immediate family for the usual residential purposes at one location." Def. Ex. 7 ATTBS0001318. All employees with six months but less than thirty years of service received an amount up to $25.00 of eligible intra-LATA calls each month; all employees with thirty years of service and all retirees received up to $50.00 of eligible intra-LATA calls each month; and pre-divestiture retirees received a 100% discount on all reasonable, eligible intra-LATA toll service and a 100% discount on all reasonable inter-LATA toll service provided by AT & T.[3] Def. Ex. 7 ATTBS0001319. The 1985 plan document applied to all retirees, and did not expressly distinguish between in-region and out-of-region, or specify how the discount was to be provided. A February 1986 document entitled "Employee and Retiree Telephone Discount Policy" stated that it was the policy of BellSouth "to allow its employees and retirees a discount on amounts billed for residence local exchange service, related non-recurring charges and intra-LATA toll service." Def. Ex. 8 ATTBS0001130. It stated that "[a]ll employees with at least six months of service and retirees may be furnished local exchange service at discounted rates for the benefit of the employee/retiree and his/her immediate family for usual residential purposes." Id. ATTBS0001131. Employees with six months but less than thirty years of service received a 40% discount for all concession-eligible services, and employees with thirty or more years of service and all employees retiring on service or disability pension on or after April 1, 1985 would receive a 100% discount on one central office line, customer access line charge, custom calling features, touch-tone, trouble isolation/inside wiring maintenance, and one additional listing, and a 40% discount on all additional concession-eligible services. Id. Further, employees with six months but less than thirty years of service could receive a toll allowance of $25 per month for eligible intra-LATA calls; employees with thirty years of service could receive a toll allowance of $50 per *604 month for eligible intra-LATA calls; and all retirees could receive a 100% discount on an amount up to $50 on eligible intra-LATA calls. Id. ATTBS0001133. The plan provided for reimbursement by voucher for active employees residing out of region and allowed for a retiree residing in the territory of another telephone company to either submit bills for payment by BellSouth to the serving company for the service or to pay the bill himself and be reimbursed by BellSouth. Def. Ex. 8 ATTBS0001137. When an employee attained thirty years of service, he received a letter notifying him that he would be eligible to receive 100% discount on basic service (but that only one BellSouth employee/retiree per household could receive the discount), a 40% discount on other services, and up to $50.00 per month of intra-LATA calls. Def. Ex. 8 ATTBS0001140. Retiring employees (both in and out of region) received a similar letter, notifying them that they would be eligible "following your retirement" for the applicable discounts. Def. Ex. 8 ATTBS0001144. Letters to retirees who would reside in region informed them that they would be billed at the full rate, and would need to sign the bill as correct and forward it for payment to the BellSouth Services Benefit Office. Id. ATTBS0001142. Letters to retirees residing out of region also provided instructions on how to handle the bill "in order to take advantage of telephone service at a discount." Id. ATTBS0001144. The letters to retiring employees concluded, "I assure you that your Company is genuinely glad that it is in position to continue to provide you with this service following your retirement." Id. ATTBS0001145. In March 1996, BellSouth implemented a new Concession policy that expanded the services that qualified for concession to include "all current and future residential BST-provided services" and changed "the way that concession is applied." Def. Ex. 9 ATTBS0001084. The plan stated that "[i]t is BST's policy to allow all regular full-time and regular part-time active employees and retirees an appropriate discount on the regular tariff rate for BST-provided services" and that "[d]iscounts are provided for the benefit of the employee or retiree and their immediate families for usual residential purposes and only at one location and only where the telephone is located in the employee's or retiree's primary residence." Def. Ex. 9 ATTBS0001087 (emphasis in original). Under the 1996 policy, employees with more than six months but less than thirty years of service received a 40% discount on local service rates and the customer access charge, a 40% discount on optional services and package plans per month, a 40% discount on non-recurring charges such as installation or a change or move of service, and up to $25 for "usage charges" (which included BST-provided local toll, per service activation charges, etc.). Id. ATTBS0001085. Employees with thirty years of service attained and those who retired on or after April 1, 1996 received a 100% discount on local service, a 40% discount on optional services, a 100% discount on non-recurring charges associated with local service and 40% on all other services, and up to $50 on usage charges. Id. Employees with thirty years of service attained prior to April 1, 1996 received 100% discount on local service, 100% on certain optional services and 40% on others, a 100% discount on non-recurring charges for services provided at 100% concession and a 40% discount on non-recurring charges for services provided at 40% concession, and up to $50 for usage charges. Id. Employees hired before April 1, 1996 and residing in territories served by other telephone companies remained eligible for concession with the same "basic 40-percent/100-percent and $25/$50 parameters based on eligibility"; they received concession *605 benefits by paying the company furnishing service and preparing a voucher for reimbursement. Def. Ex. 9 ATTBA0001090.[4] However, employees hired on or after April 1, 1996 and who lived out of region would no longer be reimbursed for concession. Current employees living out of region would continue to be reimbursed. Def. Ex. 9 ATTBS0001091. The letter to BellSouth supervisors regarding the 1996 Concession policy stated that "[t]elephone concession is a part of your total compensation from BellSouth" and noted that, as employees, they were "valuable marketer[s] of our services." Def. Ex. 9 ATTBS0001084. The plan document also contained a provision on "Policy Continuation," which stated that "[t]he company currently intends to continue telephone concession for active employees and retirees under the terms of the concession policy, but reserves the right to amend or terminate the policy at any time, subject to any applicable collective bargaining agreements." Def. Ex. 9 ATTBS0001091. Administration of out-of-region retiree concession was handled internally until 1997, when BellSouth outsourced this function to Mercer (at the same time it outsourced administration of its pension plans to Mercer). Def. Ex. 12 Peavler Depo. at 116; Pl. Ex. M Hart Depo. at 59. Mercer was given eligibility criteria that allowed it to determine who was eligible to receive telephone concession as a retiree. Pl. Ex. N Kanoon Depo. at 67, 71. Acordia/Wells Fargo replaced Mercer as administrator in February 2003.[5] Thus, since at least 1997, out-of-region retiree concession has been administered separately from other aspects of concession. A new policy document for the "BellSouth Employee Telephone Concession Program" was issued effective September 1, 2003. Def. Ex. 10.[6] It provided that "BellSouth allows active employees and retirees a concession on company-provided telecommunications services, subject to applicable state tariffs and FCC regulations." Def. Ex. 10 ATTBS0001037. It stated that "[a] telephone concession is provided for the benefit of the employee or the retiree at his or her primary residence, for usual residential purposes." Id. Under the 2003 policy, the "basic 40-percent/100-percent local service and $25/$50 parameters based on eligibility [were] the same" as the 1996 policy. Def. Ex. 10 ATTBS0001038. As before, for employees and retirees living outside BellSouth territory, only those hired before April 1, 1996 were eligible for concession. Employees received reimbursement through the expense reimbursement system, and retirees would "submit amounts for reimbursement to the address provided in their retirement package." Def. Ex. 10 ATTBS0001039; Pl. Ex. Q McLaughlin Depo. at 56 (testifying that between 2002 and 2006, out-of-region active employees used an expense voucher system for concession reimbursement). In 2006, BellSouth merged with AT & T. Following the merger, BellSouth employees and retirees have continued to receive *606 concession pursuant to BellSouth's pre-merger concession policy. As before, concession or reimbursement is provided only if residential telephone service is purchased and is only available once at a particular address, even if two or more eligible employees or retirees reside there. At all times, concession reimbursements and related expenses have been paid from Defendants' general assets. Ex. 18, Lacy Depo. at 80-81. B. Plaintiffs' Lawsuit Plaintiffs, who are retired employees of BellSouth, filed this action on September 7, 2007 on behalf of a class of similarly situated retirees.[7] Docket no. 1. They assert enforcement claims under ERISA § 502(a)(1)(B), (a)(2), (a)(3), and (c)(3) "concerning the establishment and/or maintenance by Defendants BellSouth and AT & T, Inc. (formerly known as SBC Communications, Inc.) of a benefit known as Telephone Concession for certain retirees who lived outside the BellSouth Local Service Area (`OOR Retirees') and who retired with a Service or Disability Pension (`Out-of-Service-Area Telephone Concession' or `OOR Concession')." Id. ¶ 1. They allege that "[t]he fundamental premise of this lawsuit is that by informing employees that they would receive an OOR Concession when they retired with a Service or Disability Pension, and by providing Telephone Concession to retirees who lived outside the BellSouth Service Area (and received telephone service from an Independent Telephone Company), Defendant BellSouth established and maintained a `defined benefit pension plan' within the meaning of ERISA § 3(35), 29 U.S.C. § 1002(35) (`the BellSouth Telephone Concession Plan')." Id. ¶ 2. Plaintiffs allege that, when "AT & T purchased Defendant BellSouth, as of the closing date of the Merger, December 29, 2006, Defendant AT & T then continued and maintained the BellSouth Telephone Concession Plan." Id. Plaintiffs allege that Defendants' conduct before and after the merger violated the provisions of ERISA governing defined benefit pension plans. Id. ¶ 3. Plaintiffs' Complaint seeks (1) "a determination that the BellSouth Telephone Concession provided to OOR Retirees is a pension plan under ERISA § 3(2), 29 U.S.C. ¶ 1002(2), and a defined benefit plan under § 3(35), 29 U.S.C. ¶ 1002(35)"; (2) reformation of the plan and its governing policies to comply with ERISA; (3) an order requiring Defendants to fund the plan, as reformed, in accordance with ERISA's funding provisions, and appointment *607 of an independent fiduciary to administer the plan and manage its assets including its right to receive contributions from Defendants in compliance with ERISA; and (4) a declaration determining and requiring the plan, as reformed, to pay benefits to Plaintiffs and other class members consistent with its terms. Defendants filed their Amended Answer on January 6, 2009. Docket no. 54. Defendants deny that telephone concession provided to OOR retirees is an ERISA benefit plan.[8] C. Procedural Posture This case was previously pending before the Honorable Judge William Wayne Justice. On August 8, 2008, Judge Justice granted Plaintiffs' motion for class certification and certified two classes, a Plan Claims Class and a Benefits Claims Class. Docket no. 39. The scheduling order bifurcated the case into two phases—the current phase, Phase I, will determine whether the telephone concession is an ERISA pension plan. Phase II would resolve the claims asserted for failure to comply with ERISA related to the establishment, maintenance, management, and administration of the plan (the "Plan Claims") and the § 502(a)(1)(B) claim for a declaration of class members' right to continue to receive benefits (the "Benefit Claims"). Both sides have filed motions for summary judgment on the Phase I issue of whether OOR Retiree Concession in an ERISA defined benefit pension plan. II. ERISA ERISA provides that, [e]xcept as provided in subparagraph (B), the terms `employee pension benefit plan' and `pension plan' mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program— (i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond, regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan. A distribution from a plan, fund, or program shall not be treated as made in a form other than retirement income or as a distribution prior to termination of covered employment solely because such distribution is made to an employee who has attained age 62 and who is not separated from employment at the time of such distribution. 29 U.S.C. § 1002(2)(A). Pension benefit plans are divided into two subcategories: defined contribution plans and defined benefit plans. Plaintiffs contend that the telephone concession is a defined benefit plan, which is generally defined as a pension *608 plan other than an individual account plan. 29 U.S.C. § 1002(35). The regulations attempt to "clarify the limits" of the terms employee pension benefit plan and pension plan "by identifying certain specific plans, funds and programs which do not constitute employee pension benefit plans" for purposes of Title I. 29 C.F.R. § 2510.3-2(a). Thus, section 2510.3-2 exempts certain severance pay plans, bonus programs for work performed ("unless such payments are systematically deferred to the termination of covered employment or beyond, or so as to provide retirement income to employees"), certain individual retirement accounts, annuities, or bonds described in section 408 or 409 of the Code, certain gratuitous payments to pre-Act retirees; and certain tax-sheltered annuities. Id. It also provides that "[g]enerally, an arrangement by which a payment is made by an employer to supplement retirement income is a pension plan," but certain supplemental payments are treated as being made under a welfare plan if certain conditions are met. Id. § 2510.3-2(g). In addition, in § 2510.3-1, the regulations further set forth certain practices that do not constitute welfare plans under section 3(1) of the Act and that also "do not constitute employee pension benefit plans within the meaning of section 3(2) of the Act." These include: (1) payroll practices[9]; (2) certain on-premise facilities, including for recreation, dining, and first-aid (but not day care centers); (3) holiday gifts such as turkeys and hams; (4) sales to employees "whether or not at prevailing market prices, of articles or commodities of the kind which the employer offers for sale in the regular course of business"; (5) hiring halls; (6) remembrance funds; (7) strike funds; (8) industry advancement programs; (9) certain group or group-type insurance programs; and (10) unfunded scholarship programs. The regulations expressly note that some of these were "inserted in response to questions received by the Department of Labor and, in the Department's judgment, do not represent borderline cases under the definition in section 3(1) of the Act" such that "this section should not be read as implicitly indicating the Department's views on the possible scope of section 3(1)." III. Analysis Courts in the Fifth Circuit utilize the three-factor test set out in Meredith v. Time Insurance, 980 F.2d 352, 355 (5th Cir.1993), for determining whether an employee benefit arrangement is an ERISA plan. We consider whether: (1) the plan exists[10]; (2) the plan falls within the safe-harbor provision established by the Department of Labor; and (3) the employer *609 established or maintained the plan with the intent to benefit employees. Peace v. Am. Gen. Life Ins., 462 F.3d 437, 439 (5th Cir.2006).[11] "If any part of the inquiry is answered in the negative, the submission is not an ERISA plan." Id. While the "existence vel non of a plan is a question of fact," McDonald v. Provident Indem. Life Ins. Co., 60 F.3d 234, 235 (5th Cir.1995),[12] when the material facts are undisputed, the issue becomes one of law. Defendants "do not challenge that Concession is provided through a plan, does not fall within the Department of Labor's (`DOL') safe harbor regulations, and was maintained by Defendants." Docket no. 85 at 2 n. 2. The fact that a plan exists, however, does not establish that the plan is an ERISA plan. Plaintiffs move for summary judgment only on the issue of whether the plan is a pension plan because it provides retirement income. Thus, the decisive issue for Plaintiff's motion is whether the Defendants established or maintained a plan that was intended to and does provide retirement income. Defendants move for summary judgment with regard to both aspects of ERISA pension plans, arguing that the OOR retiree benefit neither provides retirement income nor results in a deferral of income by employees for periods extending to the termination of covered employment or beyond. Thus, with regard to Defendants' motion, Plaintiff must either establish a fact issue with regard to whether OOR retiree concession provides retirement income or establish a fact issue with regard to whether it results in a deferral of income under ERISA's definition of a pension plan. A. When does a plan "provide retirement income"? ERISA provides that a pension plan is "any plan, fund, or program . . . to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program—(i) provides retirement income to employees." ERISA does not define the term "provides retirement income," and neither do the regulations issued by the Department of Labor. The Fifth Circuit has twice considered what the phrase "provides retirement income" means. In Murphy v. Inexco Oil, 611 F.2d 570 (5th Cir.1980), the Fifth Circuit held that ERISA's definition of a pension plan is "not to be read as an elastic girdle that can be stretched to cover any content that can conceivably fit within its reach" and that "[t]he words `provides retirement income' patently refer only to plans designed for the purpose of paying retirement income whether as a result of their express terms or surrounding circumstances." Id. at 575 (emphasis added.) Murphy was formerly president of Inexco, and while he was a corporate officer, Inexco gave bonuses to selected employees "by assigning a specific royalty interest in a drilling prospect it planned to develop to Westland Royalty Company." Id. at 572. Westland would administer that interest for the benefit of the designated employee in accordance with a plan called the Westland Royalty Participation Agreement, under which each employee was given "participation units" defined as the right to receive a fractional portion of any proceeds that *610 might thereafter accrue from the designated project, not from Westland's revenue as a whole. Id. Royalty payments were made to Westland from production proceeds, not from the employer's funds, and Westland in turn paid each participant his share of the oil and gas proceeds annually. Id. at 572-73. Assignment of an interest in a prospect was discretionary, based on management's assessment of an employee's contribution to the company, with consideration being given to length of service and job classification. Id. at 573. At the end of a person's employment, by retirement or otherwise, Inexco no longer assigned new participation units to the person, but the person continued to own those participation units representing interests that had already been assigned. Under the evidence presented, contributions to the plan were bonuses, were discretionary, were awarded in addition to regular compensation, and payments started in the year in which a given prospect began to produce, a time when the employee ordinarily was in active service with the company, and continued so long as there was production. Id. at 574. Thus, "while the primary thrust of the plan is to reward employees during their active years, payments to some employees or their heirs are likely to continue after the employee has retired or ceased work because of death or disability." Id. In rejecting Murphy's claim that the plan was an ERISA pension plan, the Court held that, "[u]nder the statutory definition, . . . the mere fact that some payments under a plan may be made after an employee has retired or left the company does not result in ERISA coverage." Id. at 575. Though acknowledging that ERISA is applicable to bonus plans whose payments "are systematically deferred to the termination of covered employment or beyond, or so as to provide retirement benefits" the Court held that "[t]he Westland Agreement provides for benefits to be paid immediately to employees, not for their deferment in any fashion, systematic or otherwise; it was evidently designed to provide current rather than retirement income to Inexco's employees." Id. at 575-76. It further reasoned that "Inexco rewarded its employees for their work with a bonus consisting of a royalty right. Some of the proceeds of this right might be paid to an employee after he had retired or otherwise left Inexco, or even to his heirs after his death, but this arose out of the inherent characteristics of the property used to pay the bonus. Save for its non-assignability, the full economic benefit of the bonus accrued from the time production began. The import of the regulations, therefore, is to exempt the Westland Agreement from ERISA coverage." More recently, in Musmeci v. Schwegmann Giant Super Markets, Inc., 332 F.3d 339 (5th Cir.2003), the Court held that a grocery voucher plan was an ERISA pension plan. Schwegmann Giant Super Markets ("SGSM") operated a chain of grocery stores in New Orleans. Mr. Schwegmann "conceived a plan for SGSM to give its retirees groceries and other goods free of charge. Mr. Schwegmann then worked with Mr. Sam Levy, president of SGSM, Inc., and Mr. Joe Warnke, SGSM director of human resources, to create a voucher program for long-term SGSM employees at their retirement. In 1985, SGSM implemented this grocery voucher plan (the `Voucher Plan') designed to supply SGSM retirees with a portion of their monthly food needs. Under this plan, SGSM issued vouchers to retirees, and these vouchers could then be used in lieu of cash to purchase goods in SGSM stores." Id. at 342. To qualify for the vouchers, an employee must have completed twenty years of service with SGSM, have reached the age of sixty, and have been employed in a supervisory position for at least one year at the time of retirement. Each month, SGSM sent qualifying employees a set of *611 four vouchers worth a total of $216. The vouchers were valid for a period of thirty days, redeemable only at SGSM stores and could not be transferred. SGSM had no written procedures for administering the Voucher Plan, but it was run in a systematic manner. The Plan was funded out of the general revenue, and each year SGSM deducted the total face value of the vouchers as a business expense on its tax returns under the category of "retirement plans, etc." SGSM also issued a form 1099-R to every retiree receiving vouchers. Mr. Schwegmann considered the vouchers a gratuity subject to termination at will. After the Voucher Plan was terminated after the sale of the business, the plaintiffs sued, claiming that they were vested in an ERISA pension benefit plan. The Court noted that "the primary issue" was "whether the vouchers issued pursuant to SGSM's Voucher Plan provided the Plaintiffs with `retirement income.'" Id. at 344. The Court held that ERISA and its regulations do not affirmatively require that a pension benefit be paid in cash and that the district court properly relied on the definition of income used for purposes of determining taxable income under the Internal Revenue Code ("IRC"), "given the close connection between ERISA and the IRC." Id. at 345. Noting that the Court "has interpreted the term `income' broadly under the IRC to include anything that can be valued in terms of currency" and "[b]ased on SGSM's deduction of the expense on its tax returns and issuing 1099-R's," the Court held that "the district court was entitled to infer that SGSM considered the vouchers income under the IRC." It further noted that "[t]he cash value of the vouchers is readily ascertainable from the face of the vouchers, and the district court correctly concluded that the vouchers constituted income and the Voucher Plan is governed by ERISA." Id. Further, "[e]ven under the plain or ordinary meaning of income, the conclusion would be same because income is a `gain or recurrent benefit usually measured in money' and the vouchers provided a gain or benefit to SGSM employees and could readily be measured in money." The Court further rejected SGSM's argument that the vouchers were a "sale to an employee" exempted from ERISA under 29 C.F.R. § 2510.3-1(e) because the voucher transactions bore "none of the hallmarks of a sale." SGSM received no money or anything else of value in exchange for the vouchers or groceries, and the transactions were much closer to gifts by SGSM, comporting with the gratuitous intent expressed by Mr. Schwegmann. The Court held that, because the plan did not just offer goods for sale to employees but also provided them with a means to pay for the goods, it was not a sale to an employee. Turning to SGSM's argument that "no in-kind benefit can ever be covered by ERISA" based on district court cases involving airline programs allowing employees and retirees to fly free or at reduced rates, the Court noted that, "[s]ignificantly, these cases involve travel benefits in what would otherwise be an empty seat." Id. at 347. The Fifth Circuit noted that "[e]ach court summarily concluded that the travel benefits were not ERISA pension benefit plans because they did not provide income to the retiree," and further stated that, "[h]ad the courts looked to the IRC to determine whether the travel benefits were income, they would have answered this question in the negative because these benefits provided a `no-additional-cost-service.'" See 26 U.S.C. § 132(a)(1) (exempting no-additional-cost-service fringe benefits from gross income). Because the grocery vouchers provided income to retirees, the Court held that the voucher plan was an ERISA pension plan. These two cases provide distinct factual scenarios. In Murphy, a bonus was paid *612 to a current employee but, because of the nature of the interest given as a bonus (royalty interest), it had the incidental effect of providing some taxable income in retirement. The Court found it was not an ERISA pension plan because it was not designed to provide retirement income. In Schwegmann, a voucher plan that was intended to and did provide income in retirement only was an ERISA pension plan. Looking at a portion of the BellSouth telephone concession plan in isolation—out-of-region reimbursement to retirees—Plaintiffs argue that cash reimbursements to retirees are designed to and do provide retirement income. Plaintiffs argue that reimbursement to retirees who live outside of AT & T's service area qualifies as an ERISA pension plan because the plan may be treated as an ERISA pension plan "to the extent that" it "provides retirement income." In contrast, Defendants argue that the plan must be viewed as a whole and is more like Murphy—a plan to provide current non-taxable compensation to employees and certain retirees, which incidentally provides, as a matter of parity, income to a class of retirees who live outside of AT & T's service area. Defendants argue that the benefit of telephone concession is more like a welfare benefit, which does not vest and can be discontinued by the employer at any time, than a pension benefit, which receives ERISA's highest forms of protection, including vesting, insurance, and survivor benefits. The Court finds this to be a very close case. The benefit situation presented here is unique. Only two cases have addressed a similar benefit plan—Stoffels v. SBC Communications, 555 F.Supp.2d 745 (W.D.Tex.2008), in which Judge Justice found that an ERISA pension plan existed for out-of-region retirees, and Rathbun v. Qwest Communications Int'l, Inc., 458 F.Supp.2d 1238, 1248 (D.Colo.2006), in which Judge Babcock found that similar facts did not establish an ERISA pension plan. Both sides have briefed the issues extremely well, and the Court commends them for presenting such thoughtful, well-supported briefs.[13] B. How to view the plan for purposes of determining whether it is an ERISA pension plan Plaintiffs assert that the Court may and should view the OOR Retiree Concession as a separate plan for purposes of determining whether it is an ERISA pension plan. Judge Justice agreed with this position in Stoffels with regard to SBC's concession, relying primarily on the fact that the OOR Retiree Concession was separately administered. On summary judgment, Judge Justice found that Plaintiffs had created a fact issue with regard to the issue of how to view the plan because AT & T's interrogatory responses identified "up to 51 separate concessions, SBC/AT & T's Director of Human Resources testified that she viewed the Concession for OOR Retirees as separate from the Concession to In-Region Retirees, and by 2000 the OOR Retiree Concession had a distinct infrastructure from other segments of the *613 larger plan." Stoffels v. SBC Communications, 526 F.Supp.2d 645 (W.D.Tex.2007). In concluding that the fact that part of concession was provided to current employees did not render the retiree benefits beyond the scope of ERISA, Judge Justice found that "Plaintiffs have presented evidence that creates a genuine issue in regard to the distinction between the larger Concession and the OOR Retiree Concession—most convincingly the OOR Retiree Concession's separate administration—and the defendant has provided no legitimate reason to alter the Court's earlier finding." Id. at 651. After trial before an advisory jury, Judge Justice found the OOR Retiree Concession to be a separate plan for ERISA purposes. In this case, Defendants assert that we should look at the entire plan, which is designed to provide current compensation to employees, and that it is inappropriate to isolate the OOR Retiree Concession. Defendants argue that an ERISA pension plan is only one that provides "retirement income," not any plan that provides retirement benefits. Defendants assert that Plaintiffs are trying to carve out a small portion of the larger concession plan, and that the OOR concession "lacks the characteristics of a pension plan" because the benefits commence after six months' employment, not at retirement, only reimburse certain expenses incurred, are wholly dependent on where the employee or retiree resides and takes telephone service, and cash reimbursements are made only if employees and retirees file timely reimbursement requests substantiating their expenditures. Defendants argue that the OOR Concession is more like a welfare plan, but is not in fact a welfare plan because it is not on the list of the specific benefits Congress chose to enumerate in ERISA. Defendants argue that the fact that it is not a welfare plan does not mean that it should be a pension plan, subject to the much more stringent requirements and protections Congress enacted to protect pension plans, but instead means that Congress simply did not intend to regulate these types of fringe benefits under ERISA at all, leaving them to be governed by contract principles under state law. Defendants contend that it makes no sense to carve out the benefits given to out-of-region retirees, which were provided as a matter of parity to the benefits given to in-region retirees and employees, and give them the highest degree of protection ERISA offers, while leaving the in-region form outside the scope of ERISA. Under Murphy and Schwegmann, a plan is an ERISA pension plan if it was designed for the purpose of providing retirement income and actually does provide retirement income. To make this determination in this case, the Court finds that it must look at how the plan was designed to treat and how it does treat all retirees, not just out-of-region retirees, as Plaintiffs assert. The Court finds this to be required by the undisputed facts that all retirees were promised the same benefit—discounted or free telephone services—and that retirees can move between OOR and in-region concession. The groups defined as in-region and out-of-region retirees are not immutable, discrete groups. Rather, retirees could, at any point, move between the two groups simply by moving in or out of Defendants' service area. Or, Defendants' service area could expand or contract and result in a change in a retiree's status as in-region or out-of-region.[14] *614 Because of these undisputed facts, the Court disagrees with Plaintiffs that there are different types of benefits involved for in-region retirees and OOR retirees. Rather, the benefit provided to both in-region and out-of-region retirees is the same—"telephone concessions," or discounted and free telephone services.[15] Eligibility for discounted and free telephone services concession is determined for all retirees based on the same factors—generally, retiring with a service or disability pension.[16] It is only the method of receiving *615 the benefit that differs depending on whether the retiree is living in or out of Defendants' service area. When Plaintiff Donald Boos was asked "Had you stayed in the area [served by South Central Bell], would you have essentially received the same benefit in the form of a discount rather than getting a cash payment?", he replied "Yes, I believe so." Boos Depo. at 59 (emphasis added). But the fact that the method of receiving the benefit may be different for in-region and out-of-region retirees might differ does not result in a finding that there are two different benefits. Even in-region concession has been administered by different methods, including reimbursement. Thus, throughout the history of BellSouth's telephone concession, the telephone concession benefit has been provided by various methods involving reimbursement and discounts, but the benefit—discounted or free telephone services—has remained the same for in-region and out-of-region retirees. Therefore, in analyzing whether telephone concession was designed with the purpose of providing retirement income and actually does provide retirement income, the Court will consider the plan and the surrounding circumstances with regard to all retirees, regardless of the fact that the method of distributing the benefit and, concomitantly, the method of administering the benefit and accounting for the benefit, is different for in-region and out-of-region retirees.[17] *616 C. Tax Treatment of the Benefit Schwegmann directs that we consider the benefit's status as taxable income in determining whether the benefit at issue provides retirement income. Schwegmann, 332 F.3d at 345 (approving district court's use of definition of "income" used for purposes of determining taxable income under the IRC). Under Schwegmann, any benefit that does not qualify as gross (i.e., taxable) income would not provide retirement income for purposes of ERISA. The Court must therefore consider whether the benefits at issue here— discounted and free telephone services provided to retirees—are taxable income under the IRC. Generally, fringe benefits are included in gross income unless expressly excluded. Treas. Reg. § 1.61-21(a) ("Section 61(a)(1) provides that, except as otherwise provided in subtitle A of the Internal Revenue Code of 1986, gross income includes compensation for services, including fees, commissions, fringe benefits, and similar items."). "Examples of fringe benefits include: an employer-provided automobile, a flight on an employer-provided aircraft, an employer-provided free or discounted commercial airline flight, an employer-provided vacation, an employer-provided discount on property or services, an employer-provided membership in a country club[18] or other social club, and an employer-provided ticket to an entertainment or sporting event." Id. "Examples of excludable fringe benefits include qualified tuition reductions provided to an employee (section 117(d)); meals or lodging furnished to an employee for the convenience of the employer (section 119); benefits provided under a dependent care assistance program (section 129); and no-additional-cost services, qualified employee discounts, working condition fringes, and de minimis fringes (section 132)." 26 U.S.C. § 132(a) specifically excludes "certain fringe benefits" from gross income, including any fringe benefit that qualifies as a(1) no-additional-cost service, (2) qualified employee discount,[19] (3) working condition fringe, (4) de minimis fringe,[20] (5) qualified transportation fringe, (6) qualified moving expense reimbursement, (7) qualified retirement planning services, or (8) qualified military base realignment and closure fringe.[21] Subsection *617 132(b) provides that, "[f]or purposes of this section, the term `no-additional-cost service' means any service provided by an employer to an employee for use by such employee if-(1) such service is offered for sale to customers in the ordinary course of the line of business of the employer in which the employee is performing services, and (2) the employer incurs no substantial additional cost (including forgone revenue) in providing such service to the employee (determined without regard to any amount paid by the employee for such service)." Further, retired employees are "treated as employees for purposes of subsections (a) (1) [no-additional cost services] and (2) [qualified employee discounts]." 26 U.S.C. § 132(h)(1)(A) ("For purposes of paragraphs (1) and (2) of subsection (a) . . . With respect to a line of business of an employer, the term "employee" includes— (A) any individual who was formerly employed by such employer in such line of business and who separated from service with such employer in such line of business by reason of retirement or disability . . ."). Thus, no-additional cost services provided to retirees are excluded from gross income. The Schwegmann court expressly noted that a no-additional-cost-service benefit is not income for purposes of ERISA. Id. at 347 ("Had the courts looked to the IRC to determine whether the travel benefits were income, they would have answered this question [whether certain travel benefits provided income to retirees] in the negative because those benefits provided a `no-additional-cost-service.'"). Treasury Regulation § 1.132-2 provides that "[g]ross income does not include the value of a no-additional-cost service" and provides that a "no-additional-cost service" is "any service provided by an employer to an employee for the employee's personal use if— (i) The service is offered for sale by the employer to its customers in the ordinary course of the line of business of the employer in which the employee performs substantial services, and (ii) The employer incurs no substantial additional cost in providing the service to the employee (including foregone revenue and excluding any amount paid by or on behalf of the employee for the service). 26 C.F.R. § 1.132-2.[22] Section 1.132-2 expressly *618 addresses "excess capacity services," and provides that "[s]ervices that are eligible for treatment as no-additional-cost services include excess capacity services such as hotel accommodations; transportation by aircraft, train, bus, subway, or cruise line; and telephone services." Id. § 1.132-2(a)(2) (emphasis added). "The exclusion for a no-additional-cost service applies whether the service is provided at no charge or at a reduced price" and "if the benefit is provided through a partial or total cash rebate of an amount paid for the service." Id. § 1.132-2(a)(3). It is undisputed that BellSouth has treated in-region concession as a non-taxable fringe benefit under the no-additional-cost-service exception. Pl. Ex. ZZZ SBC0019839 ("BellSouth is treating its telephone concession as a no additional cost service."); Pl. Ex. J Fetick Depo. at 24. Further, Congress expressly considered concession provided to pre-divestiture retirees in the Tax Reform Act of 1986. It provided that, for pre-divestiture retirees, all the entities subject to the modified final judgment[23] (i.e., divestiture) be treated as one employer for purposes of no-additional-cost service tax treatment. 26 C.F.R. § 1.132-4(c).[24] Further, it provided that payment, including a rebate of the amount paid by the employee for service, by an entity subject to the modified final judgment of all or part of the cost of local telephone service provided to an employee by a person other than an entity subject to the modified final judgment shall be treated as telephone service provided to the employee by the entity making the payment for purposes of this section. 26 C.F.R. § 1.132-2(a)(6). As a result, pre-divestiture retirees receiving out-of-region reimbursement for local telephone service are exempt from taxation under the no-additional-cost service rules. Plaintiffs consistently "take no position" with regard to whether in-region form of concession is taxable income. See Docket no. 86 at 15 n. 18. Plaintiffs' ERISA expert testified that he took no position on whether in-region retiree concession was a pension plan because it was not clear that it provided retirement income. Pl. Ex. UU and Def. Ex. 19 at 86-87. In a footnote in their response to Defendants' Motion for Summary Judgment, Plaintiffs *619 state that "[e]ven for eligible services, the exclusion is not automatic, but subject to certain requirements" and that "[t]here is no evidence whether BellSouth's Concession meets the no-additional cost exception." Docket no. 86 at 9 n. 10. However, Plaintiffs, who have the burden of proof on the issue of whether retiree telephone concession provides retirement income, provide no evidence that would indicate that BellSouth did not believe that its in-region form of concession qualified for a no-additional-cost service exclusion or that BellSouth did not consistently treat it as such. Plaintiffs have also provided no evidence that in-region concession does not qualify. Nor have they shown that in-region telephone concession has ever been treated as taxable income by the IRS. See Rathbun, 458 F.Supp.2d at 1244 (noting that Qwest's concession of free services to current and former employees was a no-additional-cost-service fringe benefit excluded from taxable income). It is also undisputed that BellSouth did not report OOR concession reimbursements for employees and retirees as gross income prior to the merger with AT & T in December 2006. Def. Ex. 15; Pl. Ex. J Fetick Depo. at 54 ("I believe prior to the merger, they [BellSouth] were not taxing the benefit, whatsoever.").[25] After the merger, it began reporting these amounts on W-2 forms in order to be consistent with AT & T's practice. Def. Ex. 15, Fetick Depo. at 54:19-23, Def. Ex. 16, ATTBS0002323, Ex. 17, ATTBS0155655.[26] Defendants' Second Amended Responses and Objections to Plaintiffs' First Set of Interrogatories states, however, that "[w]hile BellSouth presently views telephone concession reimbursements as includable in gross income for tax purposes following the Merger, it does not withhold federal and state income taxes on these reimbursement payments. Each concessioner, as the actual taxpayer, may have claimed a no-additional-cost exclusion and demonstrated nontaxability to the IRS if he or she chose to do so. Defendants do not make income tax decisions or file tax returns for employees or retirees. To Defendants' knowledge, neither the Tax Court nor other court with jurisdiction has determined whether the reimbursements are excludable from gross income for tax purposes." Pl. Ex. D at 17. Thus, it was only after the merger that BellSouth began treating any form of concession as potentially taxable income. D. Whether the plan was designed to and does provide retirement income? Though concession is a benefit provided to retirees, the Court finds that concession *620 was never designed to provide "retirement income" to BellSouth retirees. Defendants' telephone concession plan for retirees provides free and discounted telephone services to both in-region and out-of-region retirees. Documents from the 1950s indicate that Bell, which began the practice of concession, did not believe that telephone concession provided taxable income. And since divestiture, BellSouth has never treated any form of in-region concession to be taxable income. To provide an equivalent benefit to employees and retirees unable to receive telephone concession because of the physical limitations of Defendants' service area, Defendants offered out-of-region concession. BellSouth only began reporting out-of-region concession as taxable income after the merger with AT & T. As of December 29, 2006, BellSouth's total retiree population eligible to participate in concession included 63,239 retirees, of whom 7,610 were residing out of region. Docket no. 79 at 6 (citing Def. Ex. 6); Pl. Ex. D at 6. Of the OOR retiree group, 1,174 were pre-divestiture retirees and their benefit is expressly exempted from the definition of gross income. Pl. Ex. D at 7; see 26 C.F.R. 1.132-2(a)(6). As a result, only 6,436 were post-divestiture retirees whose concession benefit could be viewed as gross income. JP Morgan, which performed an actuarial calculation on the telephone concession benefit, concluded that 6.3% of active employees hired before April 1, 1996 would become eligible for reimbursement as OOR retirees once retired. Pl. Ex. S at 7-9. Thus, the undisputed summary-judgment evidence indicates that, when viewed with regard to all retirees, the plan is not designed to and does not provide retirement income, but rather was designed to and does provide a non-taxable fringe benefit. The fact that a small portion of the retirees receive a taxable benefit does not render that portion of the plan an ERISA pension plan.[27] The Court is mindful of Plaintiffs' position that ERISA expressly provides that a plan may be a pension plan "to the extent that" it provides retirement income. However, as the Court noted in Murphy, to provide retirement income, the plan must be designed to provide retirement income. As discussed above, in making this determination, the Court concludes that it is appropriate to consider the benefit provided to all retirees under the plan rather than a small portion of retirees under the *621 plan. If the plan here were intended to provide different types of benefits to different classes of retirees, then it might be appropriate to view OOR Retirees in isolation. However, because the Court has found that the undisputed evidence shows that the plan was intended to provide the same benefit to all retirees, the Court does not find it appropriate to dissect a single benefit into two discrete subcategories and treat one as an ERISA pension plan and one as not simply because they are separately administered. Viewed in that light, Defendants' plan to provide telephone concession benefits to retirees was not designed to provide retirement income, despite the fact that it may provide taxable income to a small portion of retirees. This case is distinguishable from Schwegmann, in which it was clear and undisputed that SGSM intended the vouchers to provide retirement income. SGSM issued four vouchers for a fixed total amount ($216) each month, deducted the total face value of the vouchers as a business expense on its tax returns under the category of "retirement plans," and issued an IRS form 1099-R to every retiree receiving vouchers reflecting the face value of the vouchers received by the retiree that year.[28] The Fifth Circuit expressly noted that "SGSM considered the vouchers as income under the IRC." Schwegmann, 332 F.3d at 345. In this case, the evidence is to the contrary—that BellSouth did not consider concession to be taxable income under the IRC. E. Whether the telephone concession plan results in a deferral of income? Defendants move for summary judgment on the issue of whether telephone concession is a pension plan because it defers income. ERISA provides that a pension plan is one that, by its express terms or as a result of surrounding circumstances "results in a deferral of income by employees for periods extending to the termination of covered employment or beyond." 29 U.S.C. § 1002(2). Defendants point out that retirees have no entitlement to any amounts until they incur eligible expenses, and that the courts in both Stoffels and Rathbun concluded that concession reimbursements are not a deferral of income. Stoffels, 555 F.Supp.2d at 764; Rathbun, 458 F.Supp.2d at 1248.[29] Plaintiffs contend that any arrangement providing for some type of deferred compensation will also establish a de facto pension plan even when the benefits are subject to certain conditions. Modzelewski v. Resolution Trust Corp., 14 F.3d 1374, 1376 (9th Cir.1994) ("Because ERISA's definition of a pension plan is so broad, virtually any contract that provides for some type of deferred compensation will also establish a de facto pension plan, whether or not the parties intended to do so."). They note that, in Stoffels, a letter *622 sent to pensioners that indicated that "[t]he retiree telephone concession is deferred compensation" was sufficient to create a genuine issue of material fact precluding summary judgment. Stoffels, 526 F.Supp.2d at 652. However, after a trial before an advisory jury, Judge Justice concluded that retiree concession did not result in a deferral of income. Judge Justice held that, "[l]ike the plaintiffs in Musmeci [v. Schwegmann], Plaintiffs have failed to adduce sufficient evidence that Plaintiffs deferred compensation and that Concession provided this compensation. Plaintiffs have failed to show that their wages would have been higher if Concession had been eliminated." Stoffels, 555 F.Supp.2d at 765. Plaintiffs argue that there is more than sufficient evidence that Concession was compensation and was perceived as such, that retirees understood that retiree concession was "earned by working" and was compensation for services previously rendered by retirees, and that eliminating Concession would result in higher wages.[30] Plaintiffs contend that, because these payments are earned during employment and paid during retirement, they are deferred income. The Court concludes that telephone concession provided to retirees does not result in a deferral of income. Because concession is not regarded as "income" for purposes of the IRC and ERISA, provision of concession in retirement is not a deferral of income. Conclusion For the reasons discussed herein, the Court finds that OOR Retiree Concession cannot be viewed in isolation when determining whether the plan provides retirement income or results in the deferral of income. Considering the plan to provide telephone concession in retirement as it applies to all retirees, the Court finds that the evidence demonstrates that the plan was neither designed to nor does provide income to the vast majority of retirees under the plan, but rather provides a non-taxable fringe benefit. Plaintiffs have failed to raise a material issue of fact on the issue of whether the plan as applied to all retirees provides retirement income or results in a deferral of income. Accordingly, the Court will grant summary judgment for Defendants on the basis that the telephone concession plan is not an ERISA pension plan. Plaintiffs' Motion for Partial Summary Judgment (docket no. 81) is DENIED. Defendants' Motion for Summary Judgment (docket no. 79) is GRANTED. This is a final order of summary judgment in favor of Defendants that resolves all pending issues and claims. Accordingly, the Clerk is directed to enter judgment in accordance with Rule 58. It is so ORDERED. NOTES [1] Intra-LATA toll service refers to long distance calls within the boundaries of a Local Access and Transport Area ("LATA"). Docket 79 at 6 n. 4. The Modified Final Judgment issued during divestiture defined the LATA boundaries, and the regional bell operating companies were initially not permitted to offer inter-LATA service (long distance calls that crossed LATA boundaries or were interstate or international). Id. [2] This included one main line, touch-tone, one additional listing, and Customer Access Line Charges. Def. Ex. 5 ATTBS0001170. [3] After divestiture, BellSouth and AT & T entered into an agreement to continue concession for inter-LATA toll service for pre-divestiture retirees. Def. Ex. 11. [4] Further, the discount was continued at the employee's or retiree's residence for three months after the person's death if surviving relatives remained at the residence. Def. Ex. 9 ATTBS0001091. [5] Acordia did not make the initial determination of whether someone was eligible to receive telephone concession as an out-of-region retiree, but received a fee from the pension vendor that would indicate the individual's status. Pl. Ex. Q McLaughlin Depo. at 59. Hewitt, the pension administrator, made the determination of whether someone was pension-eligible. Id. at 102. [6] This same policy was re-issued on August 1, 2007, without any material changes. See Pl. Ex. Q McLaughlin Depo. at 75; Pl. Ex. Q-1. [7] Plaintiff Donald O. Boos is a retired employee of South Central Bell, which subsequently became part of BellSouth Telecommunications, Inc. and Bell South. Complaint ¶ 9. He retired with a service pension in 1985 and moved outside the BellSouth Service Area. Id. "At all times since his retirement, Plaintiff Boos has received a Retiree Telephone Concession in the form of one hundred percent (100%) reimbursement on local telephone service, fifty dollars ($50) per month allowance for Intra-LATA (local long distance) calls and a forty percent (40%) discount on excess services." Id. Plaintiff Raymond D. Johnson is a retired employee of Southern Bell (which subsequently became part of BellSouth Telecommunications, Inc. and BellSouth). Id. ¶ 10. He retired with a service pension in 1987 and moved out of Defendants' service area in 1989. Id. Johnson has received a retiree telephone concession "in the form of one hundred percent (100%) reimbursement on local services . . . and forty percent (40%) on any other optional services." Id. Plaintiff Wanda N. Myers is a retired employee of South Central Bell and BellSouth Telecommunications. Id. at ¶ 11. She retired with a service pension in 1996 and has resided outside the Defendants' service area at all times since her retirement. Id. She has received a retiree telephone concession "in the form of one hundred percent (100%) reimbursement on local service, fifty dollars ($50) per month allowance for Intra-LATA (local long distance) calls and a forty percent (40%) discount on optional services." Id. [8] Defendants also assert the affirmative defense of impossibility. Docket no. 54 at 28 ("The very nature of the telephone concession benefit offered to these OOR retirees is so unlike a defined benefit plan accrued benefit that it cannot be one, and the benefit would need to be unrecognizably transformed from the current offering in order to fit within ERISA's rules for defined benefit pension plans."). Though they initially raised this defense with regard to the issue of whether there is an ERISA plan, Defendants have now conceded that the issue should be resolved as part of Phase II. [9] This includes "[p]ayment by an employer of compensation on account of work performed by an employee"; "[p]ayment of an employee's normal compensation, out of the employer's general assets, on account of periods of time during which the employee is physically or mentally unable to perform his or her duties, or is otherwise absent for medical reasons (such as pregnancy, a physical examination or psychiatric treatment)"; "[p]ayment of compensation, out of the employer's general assets, on account of periods of time during which the employee, although physically and mentally able to perform his or her duties and not absent for medical reasons (such as pregnancy, a physical examination or psychiatric treatment) performs no duties; for example" payment while employee is on vacation, active military duty, jury duty, training, or on sabbatical leave. [10] As the statute itself makes clear, the plan need not be formalized, and a plaintiff can prevail if the existence of a plan can be inferred from the "surrounding circumstances." 29 U.S.C. § 1002(2)(A). Thus, to determine whether a plan exists, "a court must determine whether from the surrounding circumstances a reasonable person could ascertain the intended benefits, beneficiaries, source of financing, and procedures for receiving benefits." Meredith, 980 F.2d at 355. [11] This third step of the analysis involves "two elements-(1) whether the employer established or maintained the plan, and (2) whether the employer intended to provide benefits to its employees." Shearer v. Southwest Serv. Life Ins. Co., 516 F.3d 276, 279 (5th Cir.2008). [12] As noted by the Fifth Circuit, "[n]othing requires that this determination be made by a jury; indeed, ERISA claims do not entitle a plaintiff to a jury." Graham v. Metropolitan Life Ins. Co., 349 Fed.Appx. 957 (5th Cir. 2009) (citing Borst v. Chevron Corp., 36 F.3d 1308, 1324 (5th Cir.1994)). [13] Unfortunately, the Court feels that it must take a moment to express some disappointment with some of the attacks made throughout Defendants' briefing. Defendants' briefing accuses Plaintiffs of "unabashed gamesmanship," docket no. 85 at 7, and artful pleading docket no. 79 at 17. As noted by Plaintiffs, gamesmanship suggests unsportsmanlike or improper conduct, none of which this Court has perceived in Plaintiffs' presentation of their case. Rather, Plaintiffs have presented a cogent argument, well supported by facts and legal authority, in an area repeatedly referred to as complex and difficult. The fact that Defendants disagree with Plaintiffs' position, however strongly, does not justify such attacks. [14] For example, Defendants' interrogatory answers state that, after AT & T's acquisition of BellSouth, 541 of the BellSouth OOR Retirees were within the AT & T local service area. Def. Ex. 6 at 1(c). Further, the Court does not find the fact that employees often did not move between in-region and out-of-region to change this conclusion or raise a material issue of fact, nor does the fact that, for valuation of liability purposes, JP Morgan made the assumption that OOR retirees would remain OOR until death (Pl. Ex. S at 9). [15] The various versions of BellSouth's telephone concession plan in effect since divestiture make clear that the benefit is the same for all retirees, regardless of whether they are in-region or out-of-region. As noted above, the 1984 concession plan set forth the policy of BellSouth "to reimburse its employees, retirees and directors (active and retired) for all or a portion of the amounts charged for residence local exchange services and intra-LATA toll service." The 1985 document states that it is the policy of BellSouth "to allow all the employees and retirees . . . an appropriate discount on the regular tariff rate for residence local exchange services provided by Southern Bell and South Central Bell, including related non-recurring charges and intra-LATA toll service." A February 1986 document entitled "Employee and Retiree Telephone Discount Policy" stated that it was the policy of BellSouth "to allow its employees and retirees a discount on amounts billed for residence local exchange service, related non-recurring charges and intra-LATA toll service." The March 1996 plan stated that "[i]t is BST's policy to allow all regular full-time and regular part-time active employees and retirees an appropriate discount on the regular tariff rate for BST-provided services." The 2003 policy document states that "BellSouth allows active employees and retirees a concession on company-provided telecommunications services, subject to applicable state tariffs and FCC regulations." These documents also indicate that the primary purpose of concession was to provide a discount on BellSouth-provided services. Defendants' 30(b)(6) representative testified that telephone concession involves both the discount to those residing within the service area and reimbursement to those residing outside the service area. Pl. Ex. Q McLaughlin Depo. at 24. He testified that the benefit received by OOR retirees is telephone concession in the form of reimbursement of incurred expenses. Id. at 165; see also Pl. Ex. ZZZ ("Retired employees that live in independent company territory are billed at the full tariff rate but are given the same concession that they would receive if their service was provided by the telephone company that they are retired from."). Further, the "retirement kit" that Plaintiffs rely on shows that in-region and out-of-region retirees were promised the same benefit— appropriate discounts on local exchange service and toll services. It states that it includes information about "post-retirement BellSouth benefits, including health care, life insurance and telephone concessions." Pl. Ex. N-3. It states that "[r]etired employees continue to be eligible for appropriate discounts on residence local exchange service (including related non-recurring charges) and toll services." Id. It then provides under the heading "Service Provided by BellSouth" that "[a]ppropriate discounts will automatically be applied to your monthly bill." Id. Under the heading "Service Provided by Another Company," it states "[i]f another company provides your telephone service or if you have exceptions to your tolls, you must submit your telephone bill to the BellSouth Pension Administrator to receive your concession." Id. Thus, all retirees were informed that they would receive the same benefit—"appropriate discounts on residence local exchange service and toll services." Plaintiffs also point to such documents as Mercer's "BST Telephone Concessions User Guide," stating that it describes OOR Retiree Concession as offering "retirees concessions (or rebates) on specific services on their monthly phone bills." Pl. Ex. N-1. Notably, this description of the benefit also describes in-region retiree concession. [16] See, e.g., Pl. Ex. Q McLaughlin Depo. at 49 ("The eligibility would be based on the policy, okay, which is if someone is either service pension-eligible or disability pension-eligible, and that applied whether they were in-region or out-of-region."); Pl. Ex. U Peavler Depo. at 123 (testifying that one needed to be a retiree, meaning someone who has service or disability pension eligible, to receive telephone concession in retirement). [17] Plaintiffs argue that a material fact issue exists regarding whether OOR Retiree Concession was a separate plan because it is separately administered. However, as noted, the fact that one form of the telephone concession benefit is separately administered would not result in a separate plan under the facts presented, and thus the fact that it has been separately administered does not present a material issue of fact. In footnote 19 to their opposition brief, Plaintiffs state that, in internal documents, AT & T and BellSouth acknowledge that Concession consisted of different plans, citing Ex. DDD-1. However, that document does not state that BellSouth OOR Retiree Concession was a separate benefit plan. It does refer to different products or concessions and the levels of discounts given to "actives" and "retirees," but it indicates that all retirees receive the same benefits. It also notes that there are "4 different retiree concession programs" and "4 retiree plans," but never states BellSouth OOR Retiree Concession was an independent benefit plan or that OOR retirees received a different benefit than in-region plans. There is simply no evidence that Defendants ever conceived of an independent plan to provide a benefit designed solely to reimburse retirees living outside the service area for telephone service supplied by another company. (In fact, such a plan would appear to be absurd). Rather, the evidence is that Defendants conceived of a plan to provide the same benefit to all retirees, but had to utilize different methods for providing the benefit to retirees if and when they moved out of region as a result of the physical limitations in Defendants' service area. Plaintiff's evidence therefore fails to raise a material issue of fact with regard to whether BellSouth's OOR Retiree Concession was a separate benefit plan as opposed to simply a separately administered portion of the same benefit plan. Plaintiffs also cite Ex. EEE, the deposition of Christine Mataya, AT & T's Lead Benefits Consultant for Human Resources and HR Policy, and Ex. EEE-1. In Ex. EEE-1, Mataya stated that she had identified "over 20 plus plans" among the various four legacy companies acquired by AT & T. In her deposition testimony discussing Ex. EEE-1, Mataya clarified that "we said plans, but really it would be more of guidelines within each of the structures of the plans, how they would be administered. So I think the depiction of plans here was not accurate." Ex. EEE at 130. Mataya further noted that the "plans or criteria" were broken down to "highlight all the different nuances that it takes to administer all of these different populations, employees, wherever they reside." Ex. EEE at 132. Again, this evidence does not show that the BellSouth OOR Retiree Concession was a separate benefit plan. [18] Defendants note, and the Court is aware, that the Eleventh Circuit in Williams v. Wright, 927 F.2d 1540, 1549 n. 17 (11th Cir. 1991) stated that "Williams concedes that some benefits described in the 1981 letter, the country club dues and the use of a vehicle, are not among those types of benefits covered by ERISA." The Court cited the definitions for welfare and pension plans in summarily stating that "[u]nlike the monetary payments and the insurance benefits, the country club and vehicle use benefits are not covered by ERISA." Id. at 1550. However, the Eleventh Circuit provided no analysis for its conclusion that these fringe benefits would not be governed by ERISA. The Court is not aware of any case holding that fringe benefits are categorically excluded from ERISA coverage. [19] "Qualified employee discount" means "any employee discount with respect to qualified property or services to the extent such discount does not exceed—(A) in the case of property, the gross profit percentage of the price at which the property is being offered by the employer to customers, or (B) in the case of services, 20 percent of the price at which the services are being offered by the employer to customers." 26 U.S.C. § 132(c). [20] "De minimis fringe" means "any property or service the value of which is (after taking into account the frequency with which similar fringes are provided by the employer to the employer's employees) so small as to make accounting for it unreasonable or administratively impracticable." 26 U.S.C. § 132(e). [21] 26 U.S.C. § 132(j) also includes additional "special rules," including that "gross income shall not include the value of any on-premises athletic facility provided by an employer to his employees." [22] Treasury Regulation § 1.132-2 directs readers to § 1.132-4 for rules relating to the line of business limitation. Treasury Regulation § 1.132-4 provides: A no-additional-cost service . . . provided to an employee is only available with respect to property or services that are offered for sale to customers in the ordinary course of the same line of business in which the employee receiving the property or service performs substantial services. Thus, an employee who does not perform substantial services in a particular line of business of the employer may not exclude from income under section 132(a)(1) or (a)(2) the value of services or employee discounts received on property or services in that line of business. 26 C.F.R. § 1.132-4(a)(1). "An employer's line of business is determined by reference to the Enterprise Standard Industrial Classification Manual (ESIC Manual) prepared by the Statistical Policy Division of the U.S. Office of Management and Budget. An employer is considered to have more than one line of business if the employer offers for sale to customers property or services in more than one two-digit code classification referred to in the ESIC Manual." Id. § 1.132-4(a)(2). However, if an employer "has more than one line of business, such lines of business will be treated as a single line of business where and to the extent that one or more of the following aggregation rules apply: (i) If it is uncommon in the industry of the employer for any of the separate lines of business of the employer to be operated without the others, the separate lines of business are treated as one line of business; (ii) If it is common for a substantial number of employees (other than those employees who work at the headquarters or main office of the employer) to perform substantial services for more than one line of business of the employer, so that determination of which employees perform substantial services for which line or lines of business would be difficult, then the separate lines of business of the employer in which such employees perform substantial services are treated as one line of business. . . . (iii) If the retail operations of an employer that are located on the same premises are in separate lines of business but would be considered to be within one line of business under paragraph (a)(2) of this section if the merchandise offered for sale in such lines of business were offered for sale at a department store, then the operations are treated as one line of business. . . ." This section also includes a "grandfather rule for telephone service provided to predivestiture retirees," discussed supra. [23] This refers to the Modified Final Judgment issued by the district court for the District of Columbia on August 24, 1982 in United States v. Western Electric, Civ. A. No. 82-0192 requiring the separation of the Bell System Companies, also known as divestiture. Bell submitted a plan of reorganization, which was approved by the court on August 5, 1983. [24] (c) Grandfather rule for telephone service provided to predivestiture retirees. All entities subject to the modified final judgment (as defined in section 559(c)(5) of the Tax Reform Act of 1984) shall be treated as a single employer engaged in the same line of business for purposes of determining whether telephone service provided to certain employees is a no-additional-cost service. The preceding sentence applies only in the case of an employee who by reason of retirement or disability separated before January 1, 1984, from the service of an entity subject to the modified final judgment. This paragraph (c) only applies to services provided to such employees as of January 1, 1984. For a special no-additional-cost service rule relating to such employees and such services, see § 1.132-2(a)(6). [25] Plaintiffs provide evidence that some individuals questioned the practice of not reporting OOR concession as taxable income, see Pl. Ex. LLL DeWard Decl. at ¶ 9 (noting that he strongly suggested that BellSouth begin reporting those payments as taxable income), and that BellSouth was aware at least by 2003 that it should be treating OOR concession as taxable income, see Pl. Ex. WWW. [26] Since at least 1997, AT & T had three different "tax components" to concession: (1) for predivestiture retirees, concession was excluded from income; (2) for in-service active employees, concession was excluded from income under 26 U.S.C. § 132; and (3) for out-of-service area employees or retirees, if concession was offered by reimbursement, it was treated as taxable income and reported to the IRS on form W-2. Pl. Ex. J Fetick Depo. at 25. Fetick testified that retiree concession was treated as compensation attributable to prior service. Id. at 26. After the merger, "legacy" employees were informed that "[b]ased on IRS guidelines, reimbursement of phone concession for employees who reside outside of the company's local service area is treated as taxable income." Def. Ex. 16 ATTBS0002323. Retirees were also informed that reimbursement for out-of-region concession would be treated as taxable income and would be subject to tax withholding for post-divestiture retirees. Def. Ex. 17 ATTBS0155655. [27] Defendants also argue that the in-region form of concession is expressly exempted from ERISA under § 2510.3-1(e) as an employee sale. The Fifth Circuit held in Schwegmann that the grocery vouchers were not exempt from ERISA as employee sales under 29 C.F.R. § 2510.3-1(e) because providing free groceries is not a sale. Thus, it may be that Schwegmann precludes such a finding for the 100% discount on local telephone service (though it may not for the intra-LATA/usage discounts). However, the Court finds that the existence of this provision further supports the conclusion that an employer's provision of no-additional-cost in-kind services are not pension plans because they do not provide retirement income. Though § 2510.3-1(e) expressly excludes only "a sale of articles or commodities of the kind which the employer offers for sale in the regular course of business," whether or not at prevailing market prices, that section also states that some of the practices listed in § 2510.3-1 are not borderline cases and "should not be read as implicitly indicating the Department's views on the possible scope of section 3(1)." Thus, the fact that the benefit in question here does not precisely fit the requirements of § 2510.3-1(e) so as to be exempt does not require the converse finding that it is a pension plan under ERISA. Defendants have provided a DOL opinion letter from 1999, in which the DOL concluded, after citing § 2510.3-1(e), that "[a]n airline's free or reduced cost `in-kind' travel pass program for former employees, however, has not been identified by the Department as among the types of welfare or pension benefits covered by Title I or ERISA." 1999 ERISA LEXIS 11 (March 26, 1999). [28] Neither BellSouth nor AT & T has ever taken a tax deduction for retirement plans based on OOR expenditures, nor have they reported such payments on form 1099-R. Def. Reply Docket no. 88 at 7. Further, in Schwegmann, the vouchers were issued automatically and treated as taxable income for their face value, regardless of whether they were used by the retiree. Here, in contrast, reimbursements were issued only after the employee incurred the charges and submitted their bill for reimbursement. If the employee did not utilize the services, no benefit was given. And, significantly, if two or more retirees resided at a single address, only one benefit was available. [29] Plaintiffs note that the court in Rathbun found that it was not a pension plan because it did not result in the "systematic deferral until retirement of income earned during employment." Rathbun, 458 F.Supp.2d at 1238. Plaintiffs assert that the court applied the wrong standard, because the requirement that payments be systematically deferred applies only to bonus plans, which concession is not. [30] Plaintiffs point to documents from proceedings before various Public Service Commissions in the 1970s and 1980s concerning whether telephone operating companies should be able to take concessions into account when setting rates. Defendants point out that, to the extent these documents show that, if concession were eliminated, wages would need to be higher because employees viewed concession as part of their compensation, they do not discuss OOR Retiree concession.

994 A.2d 1039 (2010) 202 N.J. 43 LAKE VALLEY ASSOCIATES, LLC. v. TOWNSHIP OF PEMBERTON. C-873 September Term 2009, 065618. Supreme Court of New Jersey. May 7, 2010. Petition for Certification Denied.

382 F.2d 29 Barbara DANIELS, Appellant,v.Gerald VAN DE VENTER, Dennis Peterson, and Reed Miller, appellees. No. 9325. United States Court of Appeals tenth Circuit. Sept. 8, 1967. John S. Carroll, Denver, Colo., for appellant. Wesley H. Doan, of Yegge, Hall, Treece & Evans, Denver, Colo., for appellees. Before MURRAH, Chief Judge, and HILL and SETH, Circuit Judges. SETH, Circuit Judge. 1 This is an action for damages brought under the Civil Rights Act, 42 U.S.C. 1983, against two police officers. The case was tried to a jury which returned a verdict for the defendants, and plaintiff has taken this appeal. 2 Appellant asserts that the trial court erroneously instructed the jury on several issues, and erroneously admitted certain evidence. 3 The claim of the appellant arose out of an incident which took place outside her hom during which she and a man with whom she had just driven home engaged in a loud argument and a scuffle. The police were called by appellant's children who were at the house, and the officers who responded are the appellees herein. The officers observed the scuffle and the loud argument which continued despite the officers' efforts to stop it. Finally they arrested appellant, during which she resisted with considerable determination, and took her to jail. There she was advised of the amount of bail and was allowed to call relatives. Bail was not made however until after a delay of several days, and tereafter she appeared before a magistrate. 4 Appellant alleged that her constitutional rights were violated during the course of her arrest, by the failure of the officers to advise her of her rights, by a failure to take her before a magistrate promptly, by fixing bail in an improper manner, and related grounds. 5 On appeal the issues raised by appellant first concern the ruling of the trial judge on cross-examination permitting questions to be asked of appellant concerning her relationship with the man with whom she was having the argument when arrested. She was so asked whether the man stayed at her house frequently since March of the same year, March being the month during which she testified she became reacquainted with this man. The attorney for appellant strongly objected to this question and to a question seeking to develop how frequently he stayed there. The court permitted the questions and appellant answered them, and also testified that she had once called the police 'on him' apparently when he was at her house. The appellant here urges that this evidence so admitted by the trial judge was immaterial and was grossly prejudicial. 6 This evidence, we hold, was properly admitted. It served to explain the incident, and was otherwise relevant under her complaint which, among other causes, seeks exemplary damages by reason of her having been '* * * greatly humiliated and held up to public scorn and derision as a result of defendants' acts.' The plaintiff-appellant requested an instruction on punitive damages which was given and it refers to fraud, malice, insult, or wanton and reckless disregard of plaintiff's rights and feelings. The facts surrounding the incident, and the good faith of the defendants must be developed upon such a claim. Also good faith and probable cause in making an arrest are defenses which may be raised under section 1983 of the Civil Rights Act. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (U.S. April 11, 1967). As the trial court said when appellant objected to the questions on the ground of relevancy: '* * * this matter as I view it is admissible insofar as it gives character to what occurred on the day in question. * * * What has gone before explains in some way what occurred on the day in question as I view it. I would receive it for that purpose.' 7 The police officers testified when they arrived the appellant and the man were fighting in a car in her driveway or at least the man was defending himself from her blows. They took the man out of the car, and he tole them they had been fighting earlier that evening, and that they were not married. The appellant insisted that the man not leave, and that she would sign a complaint against him if he left. Also according to their testimony she made more remarks about him, and finally locked herself in his car. The officers got her out after some effort and conversation, but more difficulties arose when she went into the house, where the officers testified they thought she was going to commit suicide. She was finally arrested, handcuffed, and taken to jail. In view of what the testimony shows that the officers then knew about her companion at the time, and in view of the complaint, the evidence concerning their relationship was material for the purpose the trial court indicated and on the arrest generally. 8 The appellant argues that the instructions given by the trial court were erroneous in several respects, but we have carefully examined the instructions and find no error. 9 The instructions when considered as a whole do not permit the jury to regard everything following the arrest to be legal if the arrest was legal, as appellant contends they do. 10 The instructions were also proper as to intent. We held in Stringer v. Dilger, 313 F.2d 536 (10th Cir.), that intent is not a necessary element to be shown, but as in any tort action a defendant in an action under section 1983 of the Civil Rights Act is responsible for the natural consequences of his acts. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; Pierson v. Ray, supra. The court in its instruction did say, '* * * you are called on to determine whether or not the defendants knowingly, intentionally, that is, with knowledge, that they were doing these unlawful acts. * * *' The instruction as a whole is a proper one on this point, and the word 'intentionally' was adequately explained. The instruction was in accordance with the precedents. 11 The appellant also urges that the instructions were erroneous as they related to the manner in which the bond was set. The complaint of appellant was not as to the amount of the bond, but that it was not set personally be a magistrate. It appears instead that bond was fixed in amount, and appellant so advised shortly after her arrest, by a police officer in accordance with standing instructions of a magistrate. The trial court properly instructed on this problem, and did not instruct, as appellant contends, that bond could be so fixed. 12 The charge to the jury relative to the appearance of appellant before a magistrate, and to the testimony of the officers at other hearings was not in error. 13 The appellant tendered instructions which were not given, and it is here asserted that the trial court's refusal of these instructions was error. The instructions as given by the court however clearly and adequately covered the issues. 14 Affirmed.

15-57-cv In re Application of Gorsoan Ltd., et al. v. Bullock, et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of June , two thousand sixteen. Present: PETER W. HALL, GERARD E. LYNCH, DENNY CHIN, Circuit Judges. ____________________________________________________ IN RE APPLICATION OF GORSOAN LIMITED AND GAZPROMBANK OJSC FOR AN ORDER PURSUANT TO 28 U.S.C. 1782 TO CONDUCT DISCOVERY, Plaintiff–Appellee, v. No. 15-57-cv JANNA BULLOCK, STUART ALAN SMITH, RIGROUP LLC, ZOE BULLOCK REMMEL, Defendants-Appellants. _____________________________________________________ For Plaintiff-Appellee: Kenneth S. Leonetti, Caroline S. Donovan, Foley Hoag LLP, Boston, Mass. For Defendants-Appellants: Janna Bullock, pro se, New York, NY.  Stuart A. Smith, pro se, New York, NY. Zoe Bullock Remmel, pro se, New York, NY. RIGroup LLC, pro se, New York, NY. ______________________________________________________________________________ Appeal from an order of the United States District Court for the Southern District of New York (Gardephe, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal of RIGroup LLC is DISMISSED and the orders of the district court are AFFIRMED. Appellants Janna Bullock, Stuart Alan Smith, RIGroup LLC, and Zoe Bullock Remmel, proceeding pro se, appeal two orders of the district court. The first order denied Appellants’ motion to quash subpoenas issued pursuant to 28 U.S.C. § 1782, which permits parties interested in certain foreign legal proceedings to use United States district courts to compel discovery in aid of those proceedings. 28 U.S.C. § 1782; Certain Funds, Accounts and/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113, 114-15 (2d Cir. 2015). Appellees Gorsoan Limited and Gazprombank OJSC sought assistance from the district court to order discovery from the Appellants for use in a fraud action filed in Cyprus. The second order denied reconsideration of the first order. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We address first the appeal brought by Appellant RIGroup LLC. Appellant Smith initially represented all Appellants on appeal, but after filing briefs, Smith was relieved as counsel to Bullock, Remmel, and RIGroup LLC. Because “a corporation cannot generally appear in federal court except through its lawyer,” Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d 565, 568 (2d Cir. 2000), RIGroup LLC was notified that it would be deemed in default if an attorney did not file a notice of appearance on its behalf by March 14, 2016. To date no attorney has filed a notice of appearance on behalf of RIGroup LLC. We thus dismiss the appeal as to RIGroup LLC. We turn next to the arguments advanced by the remaining Appellants. A district court has the authority to grant a § 1782 application if three statutory requirements are satisfied: (1) “the person from whom discovery is sought resides (or is found)” within the court’s district; (2) “the discovery is for use in a foreign proceeding before a foreign tribunal”; and (3) “the application is made by a[n] . . . interested person.” Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 80 (2d Cir. 2012). If these statutory requirements are met, a district court may exercise its discretion to grant the § 1782 application. Mees v. Buiter, 793 F.3d 291, 297 (2d Cir. 2015). Appellants do not dispute the district court’s determination that Gorsoan’s application satisfied the statutory requirements. In exercising its discretion, a district court should consider the “twin aims” of § 1782: (1) providing efficient means of assistance to participants in international litigation and (2) encouraging foreign countries to provide such assistance to our courts. Id. at 297–98. The district court may also consider four factors set forth by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc. 542 U.S. 241, 264–65 (2004): (1) whether the information sought is within the foreign tribunal’s jurisdictional reach, and thus accessible absent § 1782 aid; (2) “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or [the] court . . . to U.S. federal-court jurisdictional assistance”; (3) “whether the § 1782(a) request conceals an attempt to circumvent foreign proof- 3 gathering restrictions or other policies of a foreign country or the United States”; and (4) whether the discovery request is “unduly intrusive or burdensome” or “sought for the purposes of harassment.” Brandi-Dohrn, 673 F.3d at 80–81. When a party challenging the district court’s decision argues that it misapplied these factors, we review the decision for abuse of discretion. Lancaster Factoring Co. v. Mangone, 90 F.3d 38, 42 (2d Cir. 1996). We also review the denial of a motion to quash a subpoena for abuse of discretion. Brandi-Dohrn, 673 F.3d at 79. Appellants argue that the district court abused its discretion when it misapplied the first, third, and fourth Intel factors. We address each factor in turn. The first Intel factor instructs district courts to consider whether the requested discovery is within the foreign tribunal’s jurisdictional reach and thus accessible without § 1782 aid. Id. at 80. Indisputably, Remmel, Smith, and RIGroup are not parties to the Cyprus proceedings, and so the first Intel factor weighs in favor of discovery against them. On appeal, Appellants argue that discovery should not be permitted because Bullock and Solferino Development SA, a corporation allegedly involved in the fraud at issue in the Cypriot proceedings, were parties to those proceedings. This argument is unpersuasive for two reasons. First, Gorsoan did not seek § 1782 discovery from Solferino. Second, although “the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad,” Intel, 542 U.S. at 264 (emphasis added), participation in the foreign proceedings does not automatically foreclose § 1782 aid. Here, the district court weighed Bullock’s non- compliance with her discovery obligations in the foreign proceedings. Considering that one of the twin aims of § 1782 aid is to assist foreign courts and litigants, the district court’s conclusion that the first Intel factor weighed in Gorsoan’s favor was not an abuse of discretion. 4  The third Intel factor instructs district courts to consider whether the § 1782 application conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States. Appellants assert that the § 1782 application sought to circumvent Cypriot proof-gathering restrictions because it sought deposition testimony that is beyond the scope of discovery authorized under Cyprus law. This argument fails. There is no “requirement that evidence sought in the United States pursuant to § 1782(a) be discoverable under the laws of the foreign country that is the locus of the underlying proceeding.” In re Application for an Order Permitting Metallgesellschaft AG to take Discovery, 121 F.3d 77, 79 (2d Cir. 1997). A district court, moreover, may not refuse a request for discovery pursuant to § 1782 because a foreign tribunal has not yet had the opportunity to consider the discovery request. Id. The district court did not abuse its discretion in applying the third Intel factor. Finally, under the fourth Intel factor the court must analyze whether the subpoena contains unduly intrusive or burdensome requests. Appellants argue that the discovery in question is meant to harass Bullock and steal her assets. A district court may deny a discovery request if it is sought for the purpose of harassment. Brandi-Dohrn, 673 F.3d at 81. Nothing in the record in this case, however, supports the Appellants’ argument, nor is there any indication that the district court abused its discretion in its considering this factor. We decline to address Appellants’ argument based on Article 5 of the Hague Convention, which they raised for the first time in their motion for reconsideration. See Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 53 (2d Cir. 2012) (explaining that we “generally will not consider an argument on appeal that was raised for the first time below in a motion for reconsideration” (alterations omitted)). 5  We have considered all of Appellants’ arguments and find them to be without merit. Accordingly, we DISMISS the appeal of RIGroup LLC, and we AFFIRM the orders of the district court. FOR THE COURT: Catherine O=Hagan Wolfe, Clerk 6 

444 F.2d 840 Nancy SULLIVAN et al., Appellants,v.C. Francis MURPHY, Corporation Counsel, et al. No. 71-1395. United States Court of Appeals, District of Columbia Circuit. May 26, 1971. Mr. Monroe H. Freedman, Washington, D. C., with whom Messrs. James H. Heller and Ralph J. Temple, American Civil Liberties Union Fund, Washington, D. C., were on the motion, for appellants. Mr. David P. Sutton, Asst. Corporation Counsel for D. C., with whom Messrs. C. Francis Murphy, Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the opposition, for appellees. Before BAZELON, Chief Judge, and TAMM and WILKEY, Circuit Judges. ORDER PER CURIAM. 1 This cause came on for consideration of appellants' motion for summary reversal of the denial of a temporary restraining order, and the Court heard argument of counsel. On consideration of the foregoing, it is 2 Ordered by the Court that the order of the District Court denying a temporary restraining order is reversed, and it is 3 Further ordered by the Court that, until the District Court rules on appellants' motion for preliminary injunction, appellees are enjoined from the further prosecution of any cases, against appellants or members of the class appellants purport to represent, in which appellees do not reasonably believe that they have in their files and records adequate evidence to support probable cause for arrest and charge, and in which, for this reason, appellees intend to consent to dismiss on the appearance of the defendants in court, and it is 4 Further ordered by the Court that, until the District Court rules on appellants' motion for preliminary injunction, appellees shall take all reasonable steps to avoid requiring the appearance of those against whom appellees reasonably believe there is insufficient evidence to justify continuation of the prosecution, and to notify those who are not required to appear. 5 This order does not prohibit appellees from further bona fide prosecution in any case in which they reasonably believe that they have adequate evidence to support probable cause for arrest and prosecution, nor does it preclude the appellees from suspending any or all prosecutions until the hearing on the preliminary injunction in the District Court, or until such time as they are able to make an orderly determination in each case as to whether prosecution is to be continued.

United States Court of Appeals For the Eighth Circuit ___________________________ No. 14-2245 ___________________________ Danny Fischer lllllllllllllllllllll Plaintiff - Appellant v. Minneapolis Public Schools lllllllllllllllllllll Defendant - Appellee ____________ Appeal from United States District Court for the District of Minnesota - Minneapolis ____________ Submitted: February 11, 2015 Filed: July 8, 2015 ____________ Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges. ____________ GRUENDER, Circuit Judge. Danny Fischer sued Minneapolis Public Schools (“MPS”) claiming that MPS violated the Americans with Disabilities Act (“ADA”) and the Minnesota Human Rights Act (“MHRA”) by refusing to reinstate him as a Janitor Engineer. The district court1 granted MPS’s motion for summary judgment. Fischer appeals this decision, and we affirm. I. This employment dispute began with MPS’s decision not to reinstate Danny Fischer as a Janitor Engineer after he failed a strength test. Fischer worked for MPS as a Janitor Engineer from March 2008 until July 2010. During this time, Fischer completed his duties satisfactorily. On July 1, Fischer was laid off for fiscal reasons, but he was eligible to be recalled and reinstated later. On December 8, 2011, Fischer received a letter from Mary Alfredson, a human- resources employee at MPS, explaining that Fischer’s name had been reached on the list of former employees who were subject to recall and thus Fischer was eligible for a vacant Janitor Engineer position. The letter further explained that Fischer’s reinstatement was conditioned on his possession of a boilers license and his completion of a strength test created by Cost Reduction Technology (“CRT”). Alfredson’s letter stated, “if you pass [the CRT test] at the required level and have a current boilers license, we will proceed with the recall from layoff.” Enclosed with the letter was a referral form that described the CRT test and included directions to the testing location. The form explained that the CRT test measured the “maximum force-producing capability of muscles” and also advised Fischer to wear workout clothes, rest, and drink plenty of water. On the day of the CRT test, Fischer arrived and read a document explaining the test. He signed this document below a statement that said, “I have read the above information and I understand that I will be asked to give maximum effort and that I 1 The Honorable David S. Doty, United States District Judge for the District of Minnesota. -2- will be performing short bouts of strenuous exercise.” Fischer completed the test, which required him to operate a machine by performing repetitions using his arms, legs, and back. Fischer called Alfredson later that day to let her know he had completed the test, and Alfredson promised to contact him when the results arrived. Alfredson called Fischer several days later and left a voice message explaining that Fischer did not pass the CRT test and was accordingly being bypassed for recall. Fischer took this to mean that “I would not be getting my job back.” Fischer returned the phone call and was again told that he “was not going to get [his] job back and that [Alfredson] was going to be sending [him] a termination letter.” Fischer’s CRT test yielded a composite score of 197.5, which corresponded with medium strength, just shy of the 201 score needed for the medium-heavy strength designation that MPS required for its Janitor Engineers. Before requiring the CRT test for recalled Janitor Engineers in August 2011, MPS decided that, given the position’s physical demands, a CRT strength level of medium-heavy was appropriate for its Janitor Engineers based on a job-task analysis. CRT created these strength- level categories based on Department of Labor definitions of physical-demand requirements. There are eight such strength levels in total, ranging from sedentary to very heavy. Of the eight strength levels, medium-heavy is the third highest and is just above medium. According to CRT’s definitions, a medium-heavy strength worker is able to exert 51 to 75 pounds of force on occasion, up to 100 times in eight hours, and 31 to 45 pounds of force frequently, up to 300 times in eight hours. By comparison, a medium strength worker is able to exert 36 to 50 pounds of force occasionally and 22 to 30 pounds of force frequently. The CRT test accordingly was designed to test a worker’s physical ability relative to a given position’s demands. Here, the medium-heavy strength designation was designed to match the demands of a Janitor Engineer’s various physical tasks such as lifting a full five-gallon bucket, carrying trash to outside dumpsters, and moving racks of chairs and tables. -3-  After Fischer learned from Alfredson that he would not be getting his job back, Fischer spoke to several MPS employees and his union representatives about the possibility of a retest. According to Fischer, several MPS employees told him or his mother that he failed the CRT test because of his back and that because of his failed CRT score, he was more likely to be injured on the job. Specifically, Fischer alleges that MPS employees told him that he was not reinstated because of his back, that he was “incapable of pulling, carrying, pushing, or lifting a heavy load,” and that his employment would “create[] a substantial risk of injury in the work place.” Eventually, Fischer contacted the president of CRT and was told that he failed to achieve a composite score of 201 because his score on the portion of the test that measured back strength was lower than his score for his arms and legs. CRT’s president explained that Fischer’s back score was not poor “but it’s up to the company if they want to re-hire you or not.” During this time after Fischer learned he would not be reinstated, he spoke to multiple MPS managers and employees about the unfairness of his situation, and he requested the opportunity to retake the CRT test. MPS denied his request for a retest. Fischer sued MPS alleging that MPS violated the ADA, see 42 U.S.C. § 12101 et seq., and the MHRA, see Minn. Stat. § 363A.01 et seq., by deciding not to reinstate him based on MPS’s perception that Fischer was disabled. Fischer also alleged that MPS violated the MHRA by retaliating against him following his complaints about discrimination and requests for accommodation. The district court granted MPS summary judgment. II. We review a grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). “The non-moving party receives the benefit of all reasonable inferences supported by the evidence, but has the obligation to come -4- forward with specific facts showing that there is a genuine issue for trial.” B.M. ex rel. Miller v. S. Callaway R-II Sch. Dist., 732 F.3d 882, 886 (8th Cir. 2013) (quoting Atkinson v. City of Mountain View, 709 F.3d 1201, 1207 (8th Cir. 2013)) (internal quotation marks omitted). “A complete failure by the non-moving party ‘to make a showing sufficient to establish the existence of an element essential to that party’s case . . . necessarily renders all other facts immaterial.’” Walz v. Ameriprise Fin., Inc., 779 F.3d 842, 844 (8th Cir. 2015) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). “Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561, 568 (8th Cir. 2007) (quoting Wojewski v. Rapid City Reg’l Hosp., Inc., 450 F.3d 338, 342 (8th Cir. 2006)). Fischer first claims that MPS violated the ADA and the MHRA by refusing to reinstate him following his failed CRT test. We generally analyze ADA and MHRA claims in the same way, with one exception that is irrelevant here. Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004). And Fischer does not urge any distinction between the two statutes as applied to this case. The ADA prohibits a covered employer from discriminating against “a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show that he “(1) is disabled within the meaning of the ADA, (2) is a qualified individual under the ADA, and (3) has suffered an adverse employment decision because of the disability.” Kallail v. Alliant Energy Corporate Servs., Inc., 691 F.3d 925, 930 (8th Cir. 2012). Fischer concedes that he is not actually disabled. Instead, Fischer argues that MPS regarded him as disabled because MPS believed that his back prevented him from doing the work of a Janitor Engineer. Under the ADA, being regarded as disabled by an employer can suffice to establish a disability within the meaning of the statute if the plaintiff shows that his employer subjected him to an adverse action “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is -5- perceived to limit a major life activity.” 42 U.S.C. § 12102(1), (3)(A). Physical or mental impairments include: (i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; (ii) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities; (iii) The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism. 28 C.F.R. § 36.104. In support of his argument that MPS regarded him as disabled, Fischer relies on statements that MPS employees allegedly made after he was told he would not be reinstated. Fischer points to statements of MPS employees who told him that he was not recalled because of his back, that he was “incapable of pulling, carrying, pushing, or lifting a heavy load,” and that his employment would “create[] a substantial risk of injury in the work place.” Fischer also notes that MPS made a statement to the Equal Employment Opportunity Commission that said: Mr. Fischer’s [CRT test score] of 197.5 indicates his job performance would potentially endanger not only other employees but himself when being required to pull, or carry, or push, or lift a heavy load, or -6-  otherwise. Thus, he [sic] being incapable of pulling, carrying, pushing, or lifting a heavy load, creates a substantial risk of injury in the workplace. Even viewing these statements in the light most favorable to Fischer, they do not raise a material question of fact that MPS regarded Fischer as having a “physical or mental impairment.” 42 U.S.C. § 12102(1). Rather, they merely show that MPS believed that its CRT test designated Fischer as medium strength and that a strength level of medium heavy was necessary for the Janitor Engineer position. As such, it was not unreasonable to observe that a worker who possesses less than the required strength to perform a physically demanding job faces an increased risk of injury. Such an observation does not lead to a reasonable inference that MPS regarded Fischer as having a physical impairment related to his back. See S. Callaway R-II Sch. Dist., 732 F.3d at 886. Even though there may be sufficient evidence in the record to infer that MPS attributed Fischer’s CRT-test score to his back strength, nothing in the record suggests that MPS regarded Fischer as suffering from a physiological disorder, cosmetic disfigurement, anatomical loss, or disease. See 28 C.F.R. § 36.104 (listing conditions that constitute a physical or mental impairment). Fischer also takes issue with the accuracy of the CRT test, noting that the test results incorrectly listed his height and weight and also listed his position as Teacher rather than Janitor Engineer. But even assuming the CRT test was flawed, MPS’s honest belief that Fischer possessed medium strength does not raise a genuine dispute of material fact that MPS regarded Fischer as disabled. A worker, like Fischer, who tests at medium strength places into the fourth highest of eight strength levels and is capable of lifting heavy objects on a regular basis. Indeed, under Fischer’s view, MPS likely would regard its Cooks, Food Service Workers, and Special Education Assistants, whose positions required medium or light-medium strength, as disabled. Absent some showing of discriminatory intent, MPS was entitled to decide that different positions required different levels of strength. See Ebersole v. Novo Nordisk Inc., 758 F.3d 917, 927 (8th Cir. 2014) (We “do not sit as a super-personnel -7- department that reexamines an entity’s business decisions.”) (quoting Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 812 (8th Cir. 2005)). Simply put, MPS’s belief that Fischer was capable of performing the physical labor of a medium strength worker is not equivalent to a belief that Fischer suffered a physical impairment such as a physiological disorder, cosmetic disfigurement, anatomical loss, or disease. See 42 U.S.C. § 12102(1); 28 C.F.R. § 36.104. Fischer was told that passing the CRT test was a condition of his reinstatement as a Janitor Engineer. He signed a document that explained that he was expected to give maximum effort throughout the entire test. And then he failed to meet the required threshold of medium-heavy strength. Fischer’s attempt to cast his failure to meet a condition of reinstatement as disability discrimination is not supported by the record in this case. Cf. Jenkins v. Med. Labs. of E. Iowa., Inc., 880 F. Supp. 2d 946, 960 (N.D. Iowa 2012) (explaining that an employee failed to raise a genuine dispute of material fact that she was perceived as disabled where she failed to attend counseling—a condition of her continued employment). That MPS did not regard Fischer as having a physical impairment is further supported by the fact that MPS was willing to let Fischer apply for other positions, or reapply for the Janitor Engineer position at a later date. Because Fischer fails to raise a genuine dispute of material fact that MPS regarded him as disabled, he has failed to establish a prima facie case of disability discrimination.2 Fischer’s second claim is that MPS retaliated against him in violation of the MHRA by declining to reinstate him after he complained about unfair treatment and requested a retest. To make a prima facie retaliation claim under the MHRA, a plaintiff “must establish the following elements: ‘(1) statutorily-protected conduct 2 Fischer also relies on the report of his proposed expert, Dr. Thomas Jetzer, to support his argument that MPS regarded him as disabled. But here, Dr. Jetzer’s 2013 examination of Fischer has no bearing on whether MPS regarded Fischer as disabled in 2011 when it decided not to reinstate him. -8- by the employee; (2) adverse employment action by the employer; and (3) a causal connection between the two.’” Bahr v. Capella Univ., 788 N.W.2d 76, 81 (Minn. 2010) (quoting Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 548 (Minn. 2001)). Fischer’s claim fails because he has not created a genuine dispute of material fact that there is a causal connection between the alleged protected conduct, his complaints and requests, and his alleged adverse employment action, MPS’s refusal to reinstate him. During his deposition, Fischer explained that he first heard about his failed test when Alfredson left a voice message stating, “you didn’t pass your results, so we’re bypassing you on the list.” Fischer correctly interpreted this to mean that he would not be reinstated. Fischer returned the phone call and was again told that he “was not going to get [his] job back and that [Alfredson] was going to be sending [him] a termination letter.” Fischer only began complaining to MPS employees and asking for a retest after he learned he would not be reinstated. Because Fischer had learned of MPS’s decision not to reinstate him before he made any complaints or requested a retest and because Fischer points to no other adverse action by MPS after his complaints, Fischer has failed to raise a genuine dispute of material fact as to the causal connection between his alleged protected conduct and the alleged adverse employment action of declining to reinstate Fischer. See EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 973 (8th Cir. 2014).3 In other words, Fischer only complained and requested a retest after learning that he would not be 3 To the extent that Fischer’s second claim could be interpreted as arguing that MPS failed to accommodate him by not permitting him to retest, this claim likewise fails because an employer has no duty to accommodate an employee who is not actually disabled. See Duello v. Buchanan Cnty. Bd. of Supervisors, 628 F.3d 968, 972 (8th Cir. 2010) (explaining, “‘regarded as’ plaintiffs are not entitled to reasonable accommodations because the ADA was not intended to grant reasonable accommodations to those who are not actually disabled”). -9- reinstated, and so the decision not to reinstate him cannot be retaliatory. Accordingly, Fischer fails to establish a prima facie case of retaliation under the MHRA.4 III. We affirm. ______________________________ 4 Fischer also challenges the district court’s decision not to address two claims that were first raised in Fischer’s memorandum in opposition to summary judgment. Fischer claims that the CRT test made inappropriate medical inquiries and was an inappropriate pre-offer test. But Fischer failed to include these claims in his complaint, failed to file an amended complaint by the deadline, and did not later petition the court to amend his complaint. See Fed. R. Civ. P. 15; see also Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (“[I]t is axiomatic that [a] complaint may not be amended by the briefs in opposition to a motion to dismiss.”). Accordingly, these claims were not properly before the district court. -10- 

194 B.R. 3 (1996) In re Angelica LAMPIRIS, f/k/a Angelica Acello, Debtor. Bankruptcy No. 93-12500-JEY. United States Bankruptcy Court, D. New Hampshire. March 27, 1996. Arthur C. Randlett, Exeter, NH, for Debtor. Robert Moses, Amherst, NH, for Trustee. Keith Rothman, Islandia, NY, for Pachman & Oshrin, P.C. Geraldine Karonis, Assistant U.S. Trustee, Manchester, NH. Victor Dahar, Trustee, Manchester, NH. MEMORANDUM OPINION MARK W. VAUGHN, Bankruptcy Judge. The Court has before it the objections of the Chapter 7 Trustee and the United States Trustee to the proof of claim filed by Pachman & Oshrin, P.C., a law firm that represented *4 the Debtor prepetition in a divorce action in New York and which asserts that it holds a secured claim for legal services in the amount of $5,000. (Proof of Claim No. 6.) A final meeting of creditors was held on March 22, 1996, at which time the Court heard the Chapter 7 Trustee's objection to claims, his request for compensation, and his final account. The Court approved the Chapter 7 Trustee's final account and allowed his application for compensation. After a hearing on the objection to Pachman & Oshrin's claim, at which the Chapter 7 Trustee, the Assistant United States Trustee, and counsel for Pachman & Oshrin appeared and argued their respective positions, the Court took the objections under advisement. This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and the "Standing Order of Referral of Title 11 Proceedings to the United States Bankruptcy Court for the District of New Hampshire," dated January 18, 1994 (DiClerico, C.J.). This is a core proceeding in accordance with 28 U.S.C. § 157(b). For the reasons set out below, the Court sustains the objections of the Chapter 7 Trustee and the United States Trustee. Pachman & Oshrin shall be treated as an unsecured creditor under the Bankruptcy Code and shall receive a pro rata distribution from the funds of the Debtor's estate. FACTS The Debtor filed a Chapter 7 bankruptcy petition on September 2, 1993. On February 14, 1994, Pachman & Oshrin filed its original proof of claim. On June 16, 1994, the Court approved a settlement of the Debtor's prepetition personal injury claim, and on August 2, 1994, the Chapter 7 Trustee recovered $13,500 from Peerless Insurance Company. Pursuant to the Court's September 26, 1994, order, the attorney representing the estate in the personal injury action received $4,529 for his legal fees and expenses. The balance of $8,971 is being held by the Chapter 7 Trustee. Pachman & Oshrin filed an amended proof of claim on April 24, 1995. As indicated above, Pachman & Oshrin claims a lien in the amount of $5,000 against the personal injury suit proceeds. The basis for the firm's assertion that it holds a secured claim is an assignment dated October 27, 1992, in which the Debtor assigned to Howard E. Pachman, P.C. the amount of $5,000 "from any recovery resulting from any claim or lawsuit arising from the accident" in which the Debtor was injured. In the assignment document, the Debtor directed her attorney to honor the assignment as a lien against any proceeds of the personal injury lawsuit. Notice of this assignment was given to the Debtor's personal injury counsel who was later appointed special counsel to the Chapter 7 Trustee to pursue this claim in the bankruptcy case. No notice was given to the defendant in the personal injury lawsuit or to the defendant's insurance company, nor was a financing statement filed in accordance with Article 9 of the Uniform Commercial Code. DISCUSSION Both the United States Trustee and the Chapter 7 Trustee filed objections to this claim arguing that Pachman & Oshrin does not have valid lien because the assignment was not properly perfected as no notice was given to the defendant or its insurance carrier during the pendency of the personal injury lawsuit. The issue before the Court then is whether the law firm's claim is a secured claim and thus superior in right to the claim of the Chapter 7 Trustee, a lien creditor from the date the Debtor's bankruptcy petition was filed. To resolve this question, the Court must determine the legal effect of the assignment by the Debtor to Pachman & Oshrin. The first issue is whether Article 9 of the Uniform Commercial Code applies to the assignment. Courts have held that the assignment of a portion of an expected recovery from a cause of action should be treated as a "general intangible" under Article 9. E.g., In re Phoenix Marine Corp., 20 B.R. 424 (Bankr.E.D.Va.1982); Board of County Comm'r of County of Adams v. Berkeley Village, 40 Colo.App. 431, 580 P.2d 1251 (1978); Great Western Nat'l Bank v. Hill (In the Matter of the Estate of Hill), 27 Or.App. *5 893, 557 P.2d 1367 (1976); Friedman, Lobe & Block v. C.L.W. Corp., 9 Wash.App. 319, 512 P.2d 769 (1973). A general intangible is a catch-all category defined by Article 9 as "any personal property (including things in action) other than goods, accounts, chattel paper, documents, instruments, and money." N.H.R.S.A. § 382-A:9-106 (1994).[1] Because what was assigned to Pachman & Oshrin by the Debtor was a portion of an expected recovery from the Debtor's personal injury action, it should be treated as a general intangible. New Hampshire R.S.A. § 382-A:9-102(a) provides that Article 9 applies "to any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper or accounts." Having found that the assignment is a general intangible, the Court must next determine whether the assignment was given by the Debtor for the purpose of securing the payment of Pachman & Oshrin's legal fees incurred in the Debtor's divorce action. On this point, the language in the assignment is clear. The Debtor instructed her personal injury attorney to "honor this assignment as a lien against any funds that become due me as a result of such claim or lawsuit." (emphasis added.) Because Article 9 applies to the parties' transaction, the second question the Court must address is whether Pachman & Oshrin was required to file a financing statement to perfect its security interest in the proceeds of the lawsuit. Article 9 provides that a financing statement must be filed to perfect a general intangible. N.H.R.S.A. § 382-A:9-302; see Friedman, Lobe & Block, 512 P.2d at 771. In this case, Pachman & Oshrin did not file a financing statement. At the hearing held on March 26, 1996, counsel for Pachman & Oshrin indicated that notice had been provided only to the Debtor's personal injury counsel. No Article 9 financing statements were filed with the appropriate state and local offices. Accordingly, Pachman & Oshrin holds an unperfected security interest in the settlement proceeds. The last issue to be decided by the Court is the priority of the law firm's claim. Article 9 provides that "an unperfected security interest is subordinate to the rights of . . . a person who becomes a lien creditor before the security interest is perfected." N.H.R.S.A. § 382-A:9-301(1)(b). A lien creditor includes a "trustee in bankruptcy from the date of the filing of the petition." Id. § 382-A:9-301(3). It follows from these provisions that the unperfected security interest of Pachman & Oshrin is subordinate to the rights of the Chapter 7 Trustee, who obtained status as a lien creditor when the Debtor filed for bankruptcy on September 2, 1993. While the unperfected security interest of Pachman & Oshrin is not void or voidable, it has a lesser priority than the interest of the Chapter 7 Trustee as lien creditor. See Hill, 557 P.2d at 1374-75; Friedman, Lobe & Block, 512 P.2d at 771. CONCLUSION Accordingly, the objections of the Chapter 7 Trustee and the United States Trustee are sustained. Pachman & Oshrin shall be treated as an unsecured creditor under the Bankruptcy Code and shall receive a pro rata distribution from the funds of the Debtor's estate. The Chapter 7 Trustee shall amend his final account consistent with this opinion. This opinion constitutes the Court's findings and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. The Court will issue a separate order consistent with this opinion. NOTES [1] Note that the Court is applying New Hampshire law to the transaction in question because N.H.R.S.A. § 382-A:9-103(3)(b) indicates that "the law . . . of the jurisdiction in which the debtor is located governs the perfection and the effect of perfection or non-perfection of the security interest." The Debtor's bankruptcy petition indicates that she has lived in New Hampshire since at least two years before the filing of her Chapter 7 petition on September 2, 1993. The assignment is dated October 27, 1992, which is within this two year period.

189 Cal.App.4th 330 (2010) DAVID JAY AGOSTO, Plaintiff and Appellant, v. BOARD OF TRUSTEES OF THE GROSSMONT-CUYAMACA COMMUNITY COLLEGE DISTRICT, Defendant and Respondent. No. D055470. Court of Appeals of California, Fourth District, Division One. September 23, 2010. *332 The Torgow Law Firm and Martha A. Torgow, for Plaintiff and Appellant. Stutz Artiano Shinoff & Holtz, Jack M. Sleeth, Jr., and Paul V. Carelli IV, for Defendant and Respondent. OPINION McDONALD, Acting P. J.— David Jay Agosto appeals a judgment denying his petition for a writ of mandate directing the Board of Trustees of the Grossmont-Cuyamaca Community College District (District) to reinstate him to his former position of vice-president of Cuyamaca College and pay him backpay. On appeal, Agosto contends the trial court erred by (1) denying his request for reinstatement because he has statutory and property rights to his former position as a community college administrator; (2) denying his request for reinstatement while inconsistently awarding him partial backpay; (3) denying his request for reinstatement based on its alternative finding he was unable to work as an administrator because of his disability; (4) finding he waived his right to reinstatement; and (5) excluding certain evidence. FACTUAL AND PROCEDURAL BACKGROUND In March 1995, District and Agosto entered into a contract pursuant to which he was employed as "Executive Dean, Student Services" for a two-year term from March 27, 1995, through March 27, 1997. That contract provided: "6. Reassignment. [¶] In the event that this contract of employment is not renewed for the ensuing school year by the District, [Agosto] shall be reassigned for the ensuing school year to another position for which *333 he has the necessary qualifications, in accordance with the District's policies and procedures, the Management Employees Handbook, or other agreement governing reassignment and retreat rights. In the event that this contract is not to be renewed for the ensuing school year, the District may, at the time it gives [Agosto] written notice that the contract will not be renewed, immediately reassign [Agosto] to another position, which need not be an administrative or supervisory position, for which he has the necessary qualifications, provided, however, that [Agosto] will continue to receive for the balance of the term of this contract the salary benefits which he is entitled to receive under this contract notwithstanding such immediate reassignment." (Italics added.) The contract further provided: "This agreement does not confer tenure in the administrative or supervisory position upon an academic administrator." Agosto's employment contract was periodically renewed, although his position was subsequently redesignated as "Vice President, Cuyamaca College." In 2004 and 2005, Agosto was assigned by District as interim associate vice-chancellor, which assignment was to end on June 30, 2006. In September 2005, he was diagnosed with kidney disease and took intermittent leave from September 2005 through January 2006, and then was on full-time leave until November 30, 2006. On February 21, 2006, District's board of trustees met in closed session and gave "alternative instructions of negotiation" to the chancellor apparently to "explore" with Agosto the termination, or nonrenewal, of his contract (in comparison to its outright nonrenewal of another administrator's contract). On March 10, 2006, District sent Agosto a letter informing him of the board's decision not to renew his appointment as interim associate vice-chancellor, that his position would end on July 1, 2006, and he would not be offered any other administrative position. However, the letter informed Agosto he may have the right to return to a faculty position pursuant to the provisions of Education Code[1] section 87458. The letter further stated that although District disagreed with Agosto's argument that he had a right to his prior position of vice-president through July 2007, were a court to determine he was correct, the letter provided notice pursuant to section 72411 of District's intent not to renew that contract. In July 2006, District offered Agosto, and he accepted, reassignment to a full-time counselor position as a first-year probationary faculty employee for the coming academic year. However, Agosto apparently never performed any work in that position because he was on disability leave before and after a medical procedure performed in September 2006. *334 In November 2006, Agosto filed the instant petition for writ of mandate, alleging District did not properly terminate his two-year contract at least six months before its expiration as required by section 72411. He sought a writ of mandate directing District to reinstate him to the position of vice-president of Cuyamaca College and pay him backpay. In response, District argued that because it never signed Agosto's purported written employment contract in 1995, the statute of frauds barred its enforcement. It also argued it timely notified Agosto of its decision not to renew his appointment to his position. Finally, citing Barthuli v. Board of Trustees (1977) 19 Cal.3d 717 [139 Cal.Rptr. 627, 566 P.2d 261] (Barthuli), District argued Agosto did not have a right to reinstatement to his position as an administrator. In the first trial on the petition, the trial court (San Diego County Superior Court Judge Joan M. Lewis) denied the petition, finding that the written contract was unenforceable because District had not signed it and District had timely notified Agosto that his year-to-year position would not be renewed.[2] Agosto appealed that judgment. On July 29, 2008, we reversed the judgment for District and remanded the matter for further proceedings consistent with the views expressed in our opinion. (Agosto v. Board of Trustees of the Grossmont-Cuyamaca Community College Dist. (July 29, 2008, D051045) [nonpub. opn.].) We concluded that although District did not sign the written contract, "[t]o permit [District] to assert the statute of frauds defense in these circumstances would facilitate a fraud upon Agosto and unjustly allow the District to escape its obligations to him under the contract." We refrained from deciding the question whether Agosto's two-year contract renewed on March 27, 2007. Nevertheless, we concluded District's March 10, 2006, notice of termination (or nonrenewal) of his two-year contract was untimely. On remand, the trial court (San Diego County Superior Court Judge Ronald S. Prager) considered the evidence presented by the parties and their written and oral arguments. On May 27, 2009, the court issued an order denying in part and granting in part the petition for writ of mandate. The court noted that our July 29, 2008, opinion concluded Agosto's employment contract was not terminated because District failed to comply with section 72411's notice requirements, but our opinion did not address District's defenses and we remanded for further proceedings. The trial court stated: "This Court finds that the parties have not modified or rescinded the contract by subsequent conduct from the two-year term to a year-to-year appointment; there is insufficient evidence that the Board voted to terminate [Agosto's] employment; and that his term of employment extended to March *335 27, 2007. [¶] [Agosto's] two-year contract was not modified by conduct.... [Agosto] never waived his rights to continue to be employed under his original two[-]year contract. [¶] ... [¶] "As to the issue of what is the appropriate remedy, [Agosto] is entitled to the difference in pay between an administrator and a faculty member for July through part of November 2006 and an amount of lump-sum vacation pay since he was not able to work or be paid after November 2006 because of his disability (Ed. Code[,] § 87789.) The Court notes that [Agosto] retired in 2008. "However, reinstatement is not proper for two reasons. One, he took the position that he was disabled and stopped working in 2005 but was paid until November 2006 by sick pay and other disability benefits. He cannot take an inconsistent position about his own health, and has not provided medical evidence to show that he was not really disabled. Two, the court in [Barthuli] held that reinstatement is not an appropriate remedy for an administrator because an administrator, unlike a teacher, does not possess a statutory right to his position." Agosto timely filed a notice of appeal.[3] DISCUSSION I Writs of Mandate Generally (1) Code of Civil Procedure section 1085, subdivision (a), provides that a writ of mandate may be issued "by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station ...." "The availability of writ relief to compel a public agency to perform an act prescribed by law has long been recognized." (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539 [28 Cal.Rptr.2d 617, 869 P.2d 1142].) To obtain writ relief, a petitioner must show "`(1) A clear, present and usually ministerial duty on the part of the respondent ...; and *336 (2) a clear, present and beneficial right in the petitioner to the performance of that duty ....' [Citation.]" (Id. at pp. 539-540.) "Although mandate will not lie to control a public agency's discretion, that is to say, force the exercise of discretion in a particular manner, it will lie to correct abuses of discretion. [Citation.] In determining whether an agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld. [Citation.]" (Helena F. v. West Contra Costa Unified School Dist. (1996) 49 Cal.App.4th 1793, 1799 [57 Cal.Rptr.2d 605].) (2) Code of Civil Procedure section 1086 provides: "The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law...." A writ of mandate must not be issued where the petitioner's rights are otherwise adequately protected. (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 596 [79 Cal.Rptr.3d 489].) "It is a general rule that the extraordinary remedy of mandate is not available when other remedies at law are adequate." (Tevis v. City & County of San Francisco (1954) 43 Cal.2d 190, 198 [272 P.2d 757].) If the petitioner has an adequate remedy in the form of an ordinary cause of action for breach of contract and has no right to reinstatement to his or her position, a writ of mandate must be denied. (Ibid.; 300 DeHaro Street Investors v. Department of Housing & Community Development (2008) 161 Cal.App.4th 1240, 1254-1255 [75 Cal.Rptr.3d 98]; Taylor v. Marshall (1910) 12 Cal.App. 549, 553 [107 P. 1012].) "[M]andamus does not lie when there is no cause of action for reinstatement to a position, but merely a claim for damages for breach of contract." (Elevator Operators etc. Union v. Newman (1947) 30 Cal.2d 799, 808 [186 P.2d 1].) "In reviewing the trial court's ruling on a [petition for] writ of mandate [citation], the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence." (Saathoff v. City of San Diego (1995) 35 Cal.App.4th 697, 700 [41 Cal.Rptr.2d 352].) "[I]n a proceeding for a writ of mandate, when the matter is heard only on written evidence, all conflicts in the written evidence are resolved in favor of the prevailing party, and factual findings are examined for substantial evidence." (Capo for Better Representation v. Kelley (2008) 158 Cal.App.4th 1455, 1462 [71 Cal.Rptr.3d 354].) "However, the appellate court may make its own determination when the case involves resolution of questions of law where the facts are undisputed." (Saathoff, at p. 700.) *337 II Right to Reinstatement to Administrator Position Agosto contends the trial court erred by denying his petition for writ of mandate for reinstatement because, pursuant to section 72411, he has statutory and property rights to his former position as a community college administrator.[4] A Section 72411 provides: "(a) Every educational administrator shall be employed, and all other administrators may be employed, by the governing board of the district by an appointment or contract of up to four years in duration. The governing board of a community college district, with the consent of the administrator concerned, may at any time terminate, effective on the next succeeding first day of July, the term of employment of, and any contract of employment with, the administrator of the district, and reemploy the administrator, on any terms and conditions as may be mutually agreed upon by the board and the administrator, for a new term to commence on the effective date of the termination of the existing term of employment. "(b) If the governing board of a district determines that an administrator is not to be reemployed by appointment or contract in his or her administrative position upon the expiration of his or her appointment or contract, the administrator shall be given written notice of this determination by the governing board. For an administrator employed by appointment or contract, the term of which is longer than one year, the notice shall be given at least six months in advance of the expiration of the appointment or contract unless *338 the contract or appointment provides otherwise. For every other administrator, notice that the administrator may not be reemployed by appointment or contract in his or her administrative position for the following college year shall be given on or before March 15. "(c) If the governing board fails to reemploy an administrator by appointment or contract in his or her administrative position and the written notice provided for in this section has not been given, the administrator shall, unless the existing appointment or contract provides otherwise, be deemed to be reemployed for a term of the same duration as the one completed with all other terms and conditions remaining unchanged...." (Italics added.) Section 72411.5 provides: "... The dismissal of ... an administrator employed by appointment or contract pursuant to Section 72411 shall, if the administrator does not have tenure as a faculty member, be in accordance with the terms of the appointment or contract of employment. If the administrator has tenure as a faculty member, the dismissal of ... the administrator shall be in accordance with the provisions applicable to faculty members." Agosto asserts that because District did not give him six months' advance written notice of its purported February or March 2006 determination not to reemploy him on the expiration of his two-year contract as required by section 72411, he had a statutory right to his administrative position that precluded District from reassigning him or dismissing him from his position during the term of that contract (and any "automatic" renewal thereof pursuant to § 72411, subd. (c)). However, based on our independent interpretation of section 72411, we conclude the trial court correctly found Agosto did not have either a statutory right or property right to his position as a community college administrator and therefore was not entitled to a writ of mandate directing District to reinstate him to his former position. We, like the trial court, conclude Barthuli is controlling authority and compels us to conclude a community college administrator, like the school district administrator in Barthuli, does not have a right to reinstatement to an administrative position. In Barthuli, supra, 19 Cal.3d 717, the Supreme Court affirmed the trial court's judgment denying a petition for writ of mandate to compel a school district to reinstate the petitioner to his former position as an associate superintendent for business. (Id. at pp. 719, 723.) In that case, the school district's board voted to rescind the petitioner's four-year contract after only one year based on his purported breach of his employment contract. (Id. at pp. 719-720.) The trial court denied the petition for writ of mandate relief, finding the petitioner had an adequate remedy at law in a breach of contract *339 cause of action.[5] (Barthuli, supra, 19 Cal.3d at p. 720.) On appeal, the California Supreme Court noted "[r]einstatement has been recognized as an appropriate remedy when an employee has been discharged in violation of his statutory rights [citations] or constitutional rights [citations]." (Ibid.) However, after an analysis of the statutory scheme involving school district administrators, Barthuli concluded those administrators do not have a statutory right to their positions as administrators. (Id. at pp. 720-723.) It quoted from a section of the Education Code substantially similar to section 72411, subdivision (a), which is involved in the instant case.[6] (Barthuli, supra, 19 Cal.3d at pp. 720-721.) Barthuli stated: "Section 13314 (§§ 44893, 87454) provided that a tenured teacher `when advanced from a teaching position to an administrative or supervisory position ... shall retain his permanent classification as a classroom teacher.' (Italics added.) Section 13315 (§§ 44897, 87458) stated: `A person employed in an administrative or supervisory position requiring certification qualifications upon completing a probationary period, including any time served as a classroom teacher, in the same district, shall ... be classified as and become a permanent employee as a classroom teacher.' (Italics added.) "Although numerous statutes list grounds for teacher dismissal, providing hearings for charges of teacher misconduct [citation], there are no similar statutory provisions governing assistant superintendent misconduct. "In the absence of such provisions sections 13314 (§§ 44893, 87454) and 13315 (§§ 44897, 87458) must be read as establishing that administrative and supervisory personnel do not possess a statutory right to their positions. The statutes vest such persons with rights to the position of classroom teachers, not to administrative positions. [Citations.]" (Barthuli, supra, 19 Cal.3d at p. 721.) Barthuli noted the petitioner had not sought reinstatement to his position as a classroom teacher or alleged he would be refused such a position. (Ibid.) Barthuli concluded: "[I]n the absence of a deprivation of a constitutional right [(which deprivation Barthuli concluded did not exist)], reinstatement to his former position is not an available remedy for a discharged associate superintendent; reinstatement is available only to the position of classroom teacher." (Ibid., italics added.) Barthuli further stated: "Petitioner, in his position as an administrator, is not a permanent employee. [Citation.] The Legislature has not given him a property right in the administrative position. Rather, the Legislature has made clear by sections 13314 (§§ 44893, 87454) and 13315 (§§ 44897, 87458) that petitioner's *340 tenure rights and thus his property rights are those of a classroom teacher and not those of an administrator." (Barthuli, supra, 19 Cal.3d at pp. 722-723, italics added.) Because the petitioner had neither a statutory right nor a property right to his former administrative position with the school district, the Supreme Court affirmed the judgment denying his petition for writ of mandate seeking reinstatement to his administrative position. (Id. at p. 723.) Barthuli is not inapposite to this case because it involved a statutory scheme involving school district administrators and not community college administrators. Rather, we conclude Barthuli's express reference to two statutory provisions dealing with the rights of community college administrators demonstrated it did not intend its reasoning to apply solely to school district administrators. Barthuli parenthetically referred to sections 87454 and 87458, both of which relate to the rights of community college administrators. (Barthuli, supra, 19 Cal.3d at pp. 721, 723.) Section 87454 provides: "A tenured employee, when assigned from a faculty position to an educational administrative position, or assigned any special or other type of work, or given special classification or designation, shall retain his or her status as a tenured faculty member." Regarding nontenured administrative employees (such as Agosto), section 87458 provides: "A person employed in an administrative position that is not part of the classified service, who has not previously acquired tenured status as a faculty member in the same district and who is not under contract in a program or project to perform services conducted under contract with public or private agencies, or in other categorically funded projects of indeterminate duration, shall have the right to become a first-year probationary faculty member once his or her administrative assignment expires or is terminated if all of the following apply: [¶] ... [¶] "(c) The administrator has completed at least two years of satisfactory service, including any time previously served as a faculty member, in the district. (3) "(d) The termination of the administrative assignment is for any reason other than dismissal for cause...." Those provisions set forth the statutory rights of a community college administrator in the event his or her administrative assignment is terminated. Based on Barthuli's reference to those statutory provisions (§§ 87454, 87458), which were substantially similar to those directly involved in that case, we conclude Barthuli's reasoning and holding apply to community college administrators. Accordingly, former community college administrators do not have either a statutory right or property right to their former administrative positions and therefore are not entitled to writ relief directing reinstatement to their positions. *341 In Loehr v. Ventura County Community College Dist. (9th Cir. 1984) 743 F.2d 1310 (Loehr), the United States Court of Appeals for the Ninth Circuit applied similar reasoning in concluding that because a community college administrator did not have a property right to his former administrative position under California law, he could not state a cause of action under title 42 United States Code section 1983.[7] (Loehr, supra, 743 F.2d at pp. 1314-1316.) Loehr stated: "[N]either [section 72411] nor any other section of California law relating to the employment of [community college administrators] provides him a property interest in his position." (Loehr, at p. 1315.) Loehr interpreted Barthuli's reasoning and holding as applying to community college administrators, stating: "By parenthetically citing the statutory provisions governing tenure of community college administrators [(§§ 87454, 87458)], the California Supreme Court clearly indicated its holding covered those positions as well as the positions of elementary and secondary school personnel. Furthermore, it expressly considered ... § 35031 ... in reaching its holding. [Citation.] Section 35031 is virtually identical to section 72411, the section [the petitioner] erroneously relies on to establish an entitlement to continued employment as superintendent." (Loehr, supra, 743 F.2d at p. 1315.) Regarding section 72411's notice provision, Loehr reasoned: "Part of section 72411 ... provides for notice to [the petitioner] six months before the end of the contract if the trustees of a [community college] district decide not to reemploy him. If the trustees `fail[] to reelect or reemploy the superintendent' without giving that notice, his contract is automatically renewable. This provision, however, creates no property right. As a procedural requirement, it is not `intended to be a "significant substantive restriction"' on the Board's decisionmaking power over the employment of superintendents [citation], and provides no `articulable standard' that would define such a restriction [citation]. Indeed, section 72411.5 provides instead for wholly contractual restrictions. Thus, the procedural requirement of section 72411 creates no constitutionally protected property interest. [Citation.]" (Loehr, supra, 743 F.2d at p. 1315, italics added.) Loehr supports the conclusion that Barthuli's reasoning and holding apply to community college administrators. Therefore, former community college administrators do not have either a statutory right or property right to their former administrative positions that would entitle them to writ of mandate relief reinstating them to their former positions.[8] Barthuli is not inapposite to this case because the administrator's contract in Barthuli was terminated by the school district for an alleged breach of *342 contract. There is nothing in Barthuli's reasoning or holding that shows the court considered the alleged breach of contract in deciding whether the administrator had a statutory right or property right to his former administrative position. Rather, Barthuli's holding was based on the court's analysis of the statutory scheme involving school district administrators, which statutory scheme is substantially similar to that applicable to community college administrators. The fact Agosto's administrative position was terminated by District apparently without cause or was an alleged breach of contract does not make Barthuli's holding or our reasoning inapplicable.[9] None of the cases cited by Agosto persuade us to reach a contrary conclusion.[10] B Agosto also argues Barthuli does not apply to his case because since 1988 the statutory scheme for community college administrators has been amended to take tenure rights away from community college administrators and replace them with contract rights. In support of his argument, he cites "AB1725." (Stats. 1988, ch. 973, p. 3087.) Agosto argues: "AB1725 repealed longstanding provisions entitling administrators to earn tenure and providing due process for issues of discipline and termination. In doing so, the Community College model was diverted from the K-12 system in which, even today, academic administrators can earn tenure while serving in administrative positions. For community college administrators, in exchange for the loss of *343 job security by the removal of the tenure protections and due process rights, the Legislature created the requirement of employment contracts for educational administrators. That protection is found in the revised provisions of sections 72411 and 72411.5 that apply to the present case." However, Agosto's argument is conclusory and without citation to statutory provisions supporting his argument that community college administrators before Assembly Bill No. 1725 (1987-1988 Reg. Sess.) could earn tenure (whether as faculty members or administrators) and Assembly Bill No. 1725 removed those tenure rights. In any event, assuming arguendo Assembly Bill No. 1725 removed the right of community college administrators to earn tenure while serving in an administrative position, we nevertheless conclude that difference does not make Barthuli's reasoning and holding inapplicable to Agosto's case. As discussed above, Barthuli's reasoning was based, in large part, on a statutory scheme that granted administrators certain rights to teaching positions on termination of their administrative positions. The current statutory scheme for community college administrators (§§ 87454, 87458) remains analogous to the statutory scheme involved in Barthuli. To the extent community college administrators may no longer earn tenure rights while serving in administrative positions, they nevertheless retain certain statutory rights to faculty positions on termination of their administrative positions. Agosto does not persuade us that amendments to the statutory scheme for community college administrators make Barthuli's reasoning and holding inapplicable to his case or otherwise show he has a statutory or property right to his former administrative position. III Inconsistent Award of Backpay Agosto contends the trial court erred by denying his request for reinstatement while inconsistently awarding him partial backpay. He argues that inconsistency in the judgment shows the court was confused and should also have issued a writ of mandate directing his reinstatement to his former position, consistent with its award of backpay. In support of his argument, Agosto cites Norton v. San Bernardino City Unified School Dist. (2008) 158 Cal.App.4th 749 [69 Cal.Rptr.3d 917] (Norton). In Norton, the trial court entered a judgment that denied in full the petition for a writ of mandate directing the reinstatement of the petitioner to his former position with full backpay and reversing the administrative order imposing a one-month suspension without pay, but also inconsistently ordered that he be reinstated to his former position with full backpay. (Id. at pp. 755, 759.) Norton concluded the judgment was "internally inconsistent and in error because it denies Norton's petition for reinstatement, but orders *344 reinstatement. The judgment does not clearly state whether or not Norton had been reinstated." (Id. at p. 752.) Norton stated: "The judgment signed by the trial court, therefore, is internally inconsistent as it denies Norton's request for the issuance of a writ compelling the District to reinstate him and provide him unpaid backpay and benefits, but, at the same time, orders the District to reinstate him and provide unpaid backpay and benefits if it has not already done so. At oral argument on appeal, counsel for Norton and the District each agreed the record shows the trial court failed to decide the issue whether the District reinstated Norton in compliance with the personnel commission's decision. Norton therefore has shown that the trial court erred." (Norton, supra, 158 Cal.App.4th at p. 759.) Accordingly, Norton reversed the judgment to the extent it denied Norton's request for a writ of mandate directing the district to reinstate his position and pay him backpay. (Id. at p. 765.) Unlike Norton, the judgment in this case is not internally inconsistent regarding whether the trial court denied Agosto's petition for a writ of mandate directing District to reinstate him to his former administrative position. Rather, the trial court clearly concluded Agosto was not entitled to reinstatement to his former administrative position. After awarding Agosto partial backpay, the court stated: "[R]einstatement is not proper for two reasons.... Two, the court in [Barthuli] held that reinstatement is not an appropriate remedy for an administrator because an administrator, unlike a teacher, does not possess a statutory right to his position." (Italics added.) (4) However, as Agosto argues, the trial court's award of backpay is inconsistent with its denial of his petition for a writ of mandate directing District to reinstate him to his former administrative position. An award of backpay is generally dependent on, and secondary to, a writ of mandate directing reinstatement of the petitioner to his or her former position. (See, e.g., Lomeli v. Department of Corrections (2003) 108 Cal.App.4th 788, 790, 798 [134 Cal.Rptr.2d 179]; Phillips v. County of Fresno (1990) 225 Cal.App.3d 1240, 1247-1248 [277 Cal.Rptr. 531]; Fugitt v. City of Placentia (1977) 70 Cal.App.3d 868, 876 [139 Cal.Rptr. 123]; Ofsevit v. Trustees of Cal. State University & Colleges (1978) 21 Cal.3d 763, 769-770, 776, 777, fn. 14 [148 Cal.Rptr. 1, 582 P.2d 88]; Lowe v. California Resources Agency (1991) 1 Cal.App.4th 1140, 1144-1145, fn. 3 [2 Cal.Rptr.2d 558].) Accordingly, if a petition for writ of mandate seeking reinstatement is denied, there generally is no basis on which backpay can be awarded in that writ proceeding. To the extent a former employee seeks "backpay" but has no right to reinstatement to his or her former position, the former employee generally must file a complaint alleging a cause of action for recovery of that backpay (e.g., breach of contract cause of action) and not a petition for writ of mandate seeking reinstatement and backpay. *345 (5) As we noted above, a writ of mandate may not be issued where the petitioner's rights are otherwise adequately protected. (Code Civ. Proc., § 1086; County of San Diego v. State of California, supra, 164 Cal.App.4th at p. 596.) "It is a general rule that the extraordinary remedy of mandate is not available when other remedies at law are adequate." (Tevis v. City & County of San Francisco, supra, 43 Cal.2d at p. 198.) Therefore, if the petitioner has an adequate remedy in the form of an ordinary cause of action for breach of contract and has no right to reinstatement to his or her position, a writ of mandate must be denied. (Ibid.; 300 DeHaro Street Investors v. Department of Housing & Community Development, supra, 161 Cal.App.4th at pp. 1254-1255; Taylor v. Marshall, supra, 12 Cal.App. at p. 553.) "[M]andamus does not lie when there is no cause of action for reinstatement to a position, but merely a claim for damages for breach of contract." (Elevator Operators etc. Union v. Newman, supra, 30 Cal.2d at p. 808; see also 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 90, p. 978 ["Where the defendant, in violation of a contract or a statutory obligation, fails or refuses to pay money owed to the plaintiff, the normal remedy is an action at law."].) Accordingly, when the trial court denied Agosto's petition for a writ of mandate directing his reinstatement, it should also have denied his request for backpay. To the extent Agosto sought to recover backpay without a right to reinstatement to his former administrative position, he should have filed a complaint alleging an ordinary cause of action to recover that money.[11] Nevertheless, because District did not file a cross-appeal challenging the trial court's writ of mandate directing District to pay Agosto backpay (for the period of July through Nov. 2006), District cannot now challenge the trial court's error in awarding him backpay after (correctly) denying his petition for a writ of mandate directing District to reinstate him to his former administrative position. In its respondent's brief, District concedes it made a deliberate decision not to challenge the trial court's error in awarding Agosto backpay while denying him reinstatement: "In theory, [District] could have cross-appealed from the granting of the writ with respect to back-pay and sought reversal, since back-pay awards are attendant to the finding of reinstatement; since Agosto had no right to reinstatement, his correct procedural right was a suit at law for breach of contract. ([Barthuli], supra, 19 Cal.3d at p. 720.) However, in the interests of judicial economy, [District] did not challenge the procedural anomaly, since the trial court treated the back-pay award as if the claim were for a breach of contract, and the final result would be the same regardless." Lacking a timely appeal by District challenging the trial court's error in partially granting Agosto's petition for a writ of mandate directing District to pay him backpay, we may not reverse that part of the judgment reflecting that error. *346 IV Alternative Grounds for Denying Reinstatement Agosto contends the trial court erred by denying his petition for a writ of mandate directing District to reinstate him to his former administrative position on the alternative grounds that (1) he was unable to work as an administrator because of his disability; and (2) he waived his right to reinstatement. However, because we concluded above the trial court correctly denied Agosto's petition for a writ directing his reinstatement based on the absence of any statutory or property right to his former administrative position and the holding in Barthuli, we need not address the court's alternative grounds for denying his request for reinstatement. V Exclusion of Evidence Agosto contends the trial court erred by excluding certain evidence he proffered in support of his petition for writ of mandate. While conceding his contention may be irrelevant to our disposition of his appeal, Agosto argues the trial court erred by excluding paragraph 7 of his second declaration in support of his petition.[12] He summarily argues the court erred by excluding that evidence on the ground it expressed a legal opinion, because he instead had offered it to show why he relied on District's report of closed session actions. However, assuming arguendo the court erred by excluding that evidence, Agosto does not argue, or persuade us, the error was prejudicial and requires reversal of the judgment. Because Agosto has not carried his burden on appeal to show it is reasonably probable he would have obtained a more favorable result had the evidence not been excluded or that a miscarriage of justice occurred because of its exclusion, we conclude the purported evidentiary error by the trial court did not constitute prejudicial error. (Cal. Const., *347 art. VI, § 13; Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432 [77 Cal.Rptr.2d 574].) DISPOSITION The judgment is affirmed. The parties shall bear their own costs on appeal. O'Rourke, J., and Aaron, J., concurred. NOTES [1] All statutory references are to the Education Code unless otherwise specified. [2] The trial court did not address District's alternative argument that under Barthuli Agosto did not have a right to reinstatement to his position as an administrator. [3] Although the trial court did not enter a "judgment," for purposes of this appeal we consider its written order dated May 29, 2009, to be a final judgment from which Agosto can appeal. (Townsel v. San Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940, 944, fn. 1 [77 Cal.Rptr.2d 231]; Haight v. City of San Diego (1991) 228 Cal.App.3d 413, 416, fn. 3 [278 Cal.Rptr. 334].) [4] On March 24, 2010, District filed a request for judicial notice of the complete administrative hearing decision of California's Public Employment Relations Board identified as Grossmont-Cuyamaca Community College Dist. (2008) PERB Decision No. 1958. District argues that because Agosto offered only certain excerpts of that decision in support of his petition below, we should take judicial notice of the entire administrative decision to help show how that decision determined Agosto was not a member of the administrators' association. However, because the entire decision apparently was not proffered by Agosto, or otherwise considered by the trial court, and is, in any event, irrelevant to the issues on appeal, we deny District's request for judicial notice. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [31 Cal.Rptr.2d 358, 875 P.2d 73], overruled on another ground in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276 [63 Cal.Rptr.3d 418, 163 P.3d 106]; People v. Preslie (1977) 70 Cal.App.3d 486, 493 [138 Cal.Rptr. 828].) We decline to judicially notice material that "has no bearing on the limited legal question at hand." (People v. Stoll (1989) 49 Cal.3d 1136, 1144, fn. 5 [265 Cal.Rptr. 111, 783 P.2d 698].) [5] The court alternatively found a preponderance of the evidence showed the petitioner had, in fact, breached his employment contract. (Barthuli, supra, 19 Cal.3d at p. 720.) [6] Barthuli quoted former section 938 (now § 35031). (Barthuli, supra, 19 Cal.3d at pp. 720-721.) [7] The petitioner in Loehr was a superintendent of a community college district whose four-year contract was terminated (for alleged breaches of contract) after one year. (Loehr, supra, 743 F.2d at pp. 1312-1313.) [8] Loehr "express[ed] no opinion whether [the petitioner] could maintain an action for breach of contract under California law." (Loehr, supra, 743 F.2d at p. 1316.) [9] We likewise are unpersuaded by Agosto's assertion that: "Unlike the Barthuli K-12 provision, the community college statutes specifically grant to each academic administrator[] rights to his administrative position, not to a faculty position." Like Barthuli, we conclude a community college administrator's statutory rights on termination of his or her position are to a teaching or faculty position, and not an administrative position, under the applicable statutory scheme. (See, e.g., §§ 87454, 87458.) The fact that a community college administrator's contract or position may be terminated with or without the advance notice required by section 72411 does not give him or her any statutory or property right to the former administrative position. [10] Barton v. Governing Board (1976) 60 Cal.App.3d 476 [131 Cal.Rptr. 455] does not provide persuasive authority because it predated, and was presumably disapproved by, the California Supreme Court's decision in Barthuli. Hoyme v. Board of Education (1980) 107 Cal.App.3d 449 [165 Cal.Rptr. 737] does not provide any persuasive authority because it addressed only whether the school district strictly complied with a notice statute and did not consider, or cite, Barthuli. Ellerbroek v. Saddleback Valley Unified School Dist. (1981) 125 Cal.App.3d 348 [177 Cal.Rptr. 910], does not provide persuasive authority because it addressed whether the school district complied with a notice statute and did not consider, or cite, Barthuli. Furthermore, all three cases involved a different statutory scheme from that applicable to community college administrators involved in this case. Most importantly, because none of those cases considered whether the school administrators had a statutory or property right to their administrative positions in accordance with Barthuli's reasoning and holding, we conclude they are inconsistent with Barthuli and, in any event, we are not persuaded by their reasoning. Accordingly, we decline to follow their reasoning and instead apply Barthuli's reasoning and holding. [11] We express no opinion regarding the merits of that cause of action. [12] In that paragraph, Agosto declared: "After I received the March 10, 2006[,] letter from Omero Suarez, I continued to believe it was not valid. After about 30 years of experience with governing board meetings in compliance with the Brown Act, I was very knowledgeable [about] the requirements for and limitations on closed session matters, votes, and reports out in public session. My experience with Brown Act compliance includes 8 years as a Trustee on the Board of Southwestern Community College District, 2 years as a College President at Cuyamaca College and San Diego City College, over 20 additional years as a senior administrator in various California community college[] districts—including Cuyamaca College, the [District] Office, and the Los Angeles Community College District (15 years)— where I was required to attend board meetings, and 5 years at the State Chancellor's Office. So, based on my experience, knowledge of public meeting laws, and the inconsistencies of the Reports of Closed Session Actions for my position compared with those for Ted Martinez and the Assistant Dean (Exhibits D and CC), I expected to prevail in any challenge to the `March 15th notice.'"

Filed 3/2/15 Watts v. Oak Shores Community Assn. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX KEN WATTS et al., 2d Civil No. B240337 (Super. Ct. No. CV060326) Plaintiffs and Appellants, (San Luis Obispo County) v. OAK SHORES COMMUNITY ASSOCIATION, Defendant and Respondent. OAK SHORES COMMUNITY ASSOCIATION, Cross-complainant and Respondent, v. KEN WATTS et al., Cross-defendants and Appellants. Two owners of one lot in a common interest development and one of two owners of another lot brought an action challenging regulations and fees adopted by the owners association. The association cross-complained against all owners of both lots for fees and declaratory relief. The association prevailed on the complaint and cross-complaint. The trial court also awarded the association statutory attorney fees and costs on the complaint and cross-complaint. The judgment must be clarified so that the attorney fees awarded on the complaint are against plaintiffs only, and not against the cross-defendant who was not a plaintiff. In all other respects, we affirm. FACTS Oak Shores is a single-family residential common interest development. It is governed by the Oak Shores Community Association (Association). The Association is governed by a board of directors (Board). All property owners in the development are members of the Association. The Association's governing documents include its Covenants, Conditions and Restrictions (CC&Rs) and its bylaws. The Board "may adopt, amend, or repeal Rules for the use, occupancy and maintenance of the Project; for the general health, welfare, comfort, and safety of Members; and to interpret and implement these CC&Rs, and establish penalties for violation of such Rules." (CC&Rs, Article 6.2.) "In the event the Association undertakes to provide materials or services that benefit a particular Member, such Member in accepting the materials or services agrees to reimburse the Association for the costs incurred by the Association, which shall become a Special Assessment against the Member." (Id., Article 3.8.) Oak Shores consists of 851 parcels of land. Six hundred and sixty of the parcels are developed with single-family homes. Only about 20 percent, 125 to 150, of the homes are occupied by full-time residents. Approximately 66 absentee homeowners rent their homes to short-term vacation renters. Ken and Joyce Watts and Lynda Burlison (collectively "Watts") are absentee owners who rent their homes to short-term vacation renters. Watts filed a complaint against Oak Shores challenging fees charged and rules and regulations enacted by the Association. The challenge included: a rule restricting owners from renting out their homes more than once in any seven-day period; an annual fee of $325 imposed on owners who rent their homes; a rule limiting the number of 2 automobiles, boats and other watercraft that renters are allowed to bring into Oak Shores; a mandatory garbage collection fee; boat and watercraft fees; building permit fees; and property transfer fees. The Association cross-complained against Watts and Robert Burlison, Jr., for unpaid fees and fines and for injunctive relief to require cross-defendants to comply with Association rules and regulations. At the time of filing, the Burlisons owed $2,355.06 in unpaid assessments and the Watts owed $4,888.47. The Burlisons paid the assessment under protest. At the time of trial, the Watts owed $10,264. Short-term Renters The Association has a rule stating that the minimum rental period is seven days. The Association's general manager testified that based on his discussion with Board members, staff and code enforcement officers, as well as his review of gate and patrol logs, short-term renters cause more problems than owners or their guests. The problems include parking, lack of awareness of the rules, noise and use and abuse of the facilities. Expert James Smith testified that, unlike guests who are typically present with the owners, short-term renters are never present with the owner. Guests tend to be less destructive and less burdensome. Short-term renters require greater supervision and increase administrative expenses. A $325 fee is charged to all owners who rent their homes. A 2007 study calculated each rental cost the Association $898.59 per year. Watercraft All short-term renters and guests who bring watercraft into Oak Shores pay a fee of $25 per day or $125 per week. Short-term renters and guests are limited to one boat or two personal watercraft. Owners and long-term renters do not pay such special fees nor are they limited in the number of watercraft they can bring into Oak Shores. 3  Boats have a negative impact on the Association's roads. There are also costs of maintaining the docks and parking lot used by the renters and increased costs for code enforcement. Expert James Smith testified that renters comprise only 8 percent of the people entering the gate but renters bring in 37 percent of the boats. Parking Restrictions Association rules restrict parking in the lower marina lot to owners on weekends and holidays during the summer months. A lot not much further away is available to all. Construction Permits The Association charges a plan-check fee of $100 and a road impact fee of $1,600 for new construction. Expert James Smith testified that heavy equipment used to construct homes places more wear on the roads and results in greater usage. It is appropriate to consider the need for reserves in determining the amount of the fee. The Board President testified road resurfacing and repair is the sole costs basis for the fee. Trash Collection Fees The Association contracts with a trash collector. It passes the fees through pro-rata to all owners of developed lots. The Association does not distinguish between full-time and part-time residences because it is too difficult to make that determination. It does not charge the owners of undeveloped lots because they do not produce trash. Former Civil Code Section 1366.11 Former section 1366.1 (repealed by Stats. 2012, ch. 180, § 1 and reinstated with nonsubstantive changes as § 5600, subd. (b)) provided, "An association shall not impose or collect an assessment or fee that exceeds the amount necessary to defray the costs for which it is levied." 1 All statutory references are to the Civil Code unless noted otherwise. 4  David Levy and Travis Hickey are certified public accountants. Levy testified that the expenses generated by renters far exceed the income generated from renters. He analyzed fees and costs contained in the Association's financial statements and reserve studies. He concluded the fees charged were reasonable and complied with the law. Levy also consulted with the Association's former auditors. Levy and Hickey concluded that the fees were reasonable and did not violate former section 1366.1. Levy also testified the only comparable association charged fees that were higher or comparable to fees charged by Oak Shores. Hickey testified that he is the Association's former auditor. He studied the fees and consulted with another former auditor. He concluded the fees were fair, reasonable and in compliance with the law. They do not exceed the costs for which they are levied. No association conducts a formal study to set fees. Nor does any association conduct time and motion studies. In fact, time and motion accounting is not possible. Homeowners association expert Karen Conlon testified the Association met the standard of care for giving members notice of rule and fee changes. Fee increases can be enacted by adopting a budget for the year. Swimming Pool The Association paid a pool contractor $35,000 to repair a swimming pool. The contractor absconded with the money without repairing the pool. A former director testified that a former Board president wrote a check to the contractor without Board approval. Expert James Smith testified it is not typical, nor within the standard of care, for an association to purchase a performance bond. Release and Unclean Hands Lynda Burlison filed a previous lawsuit against the Association. Her complaint included an attack on the Association's CC&Rs, rules and regulations restricting the use of her property for rental purposes. She settled the suit for $3,000 and the Association's agreement to accept her suggestions for changes in the 5 rental policies, rules and regulations. As part of the settlement, she executed a release of all claims "known or unknown" arising out of the complaint. Ken Watts has never obtained a business license to rent his home, nor has he paid transient occupancy taxes since at least 2000. He owes at least $5,000 in back taxes. Watts has repeatedly mischaracterized his renters as guests in order to avoid applicable rental rules and regulations. Portions of his testimony at trial were "demonstrably false." Throughout his tenure at Oak Shores, he has adopted a "rancorous, accusatory and obstructionist" style of interaction with Board members and staff. He has occasionally intimidated staff with bizarre and threatening behavior. Judgment The court found for the Association on the complaint. The court found Lynda Burlison had no standing because she had previously released her claims against the Association. The court found that the Watts are denied relief under the doctrine of unclean hands. The court determined that although all the inequitable conduct was committed by Ken Watts, Joyce Watts' claims are inextricably tied to those of her husband. Therefore Joyce Watts is also denied relief. The court found that the Association's rules and regulations are reasonable and comply with the Association's governing documents and the law, and that the fees charged comply with former section 1366.1. The court also found for the Association on the cross-complaint. It granted the Association an injunction ordering the cross-defendants to abide by the rules and regulations. It also granted the Association a money judgment against Ken and Joyce Watts in the amount of $10,264 plus interest for unpaid assessments. The Association moved for an award of attorney fees pursuant to former section 1354, subdivision (c). "In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs." (Ibid., repealed by Stats 2012, ch. 180, § 1 and reenacted without substantive changes as § 5975, subd. (c).). The trial court found the Association 6 was the prevailing party in its efforts to enforce the governing documents both as to the complaint and cross-complaint. The court awarded $1,180,646.50 for defending the complaint and $27,730 on the cross-complaint. DISCUSSION I. On appeal, Watts does not challenge the trial court's findings that Lynda Burlison must be denied relief because she had previously released the Association from liability and that Ken and Joyce Watts are denied relief under the doctrine of unclean hands. Their failure to raise the issues in their opening brief waives the issues on appeal. (Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361.) Because Lynda Burlison and the Watts are the only plaintiffs, we must affirm the trial court's judgment denying any relief under their complaint. We discuss the issues raised on appeal only as they relate to the cross-complaint and the award of attorney fees. II. Watts contends that the judgment is based on incorrect legal grounds. Watts claims that the rule applying judicial deference to association decisions applies only to ordinary maintenance decisions. But in Lamden v. La Jolla Shores Clubdominium Homeowners Association (1999) 21 Cal.4th 249, our Supreme Court stated, "'Generally, courts will uphold decisions made by the governing board of an owners association so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development's governing documents, and comply with the public policy.'" (Id., at p. 265, quoting Nahrstadt v. Lakeside Village Condominium Association, Inc. (1994) 8 Cal.4th 361, 74.) It is true the facts in Lamden involve the association board's decision to treat termites locally rather than fumigate. But nothing in Lamden limits judicial deference to maintenance decisions. Common interest developments are best operated by the board of directors, not the courts. 7  Watts' reliance on Affan v. Portofino Cove Homeowners Association (2010) 189 Cal.App.4th 930, is misplaced. There, an owner sued the association for failing to properly maintain the sewer lines. In applying judicial deference, the court stated that the Lamden rule gives "deference to the reasoned decisionmaking of homeowners association boards concerning ordinary maintenance." (Id., at p. 940.) But there is no reason to read Lamden so narrowly. In fact, courts have given deference to board decisions that do not concern ordinary maintenance. Thus, for example, in Dolan-King v. Rancho Sante Fe Association (2000) 81 Cal.App.4th 965, 979, the court gave deference to an association board's decision denying on aesthetic grounds an owner's application for a room addition. Article 3.8 of the CC&Rs gives the Board broad powers to adopt rules for Oak Shores. Nothing in the article or elsewhere prohibits the Board from adopting rules governing short-term rentals, including fees to help defray the costs such rentals impose on all owners. The Board may reasonably decide that all owners should not be required to subsidize Watts' vacation rental business. That short-term renters cost the Association more than long-term renters or permanent residents is not only supported by the evidence but experience and common sense places the matter beyond debate. Short-term renters use the common facilities more intensely; they take more staff time in giving directions and information and enforcing the rules; and they are less careful in using the common facilities because they are not concerned with the long-term consequences of abuse. In arguing the cost of short-term rentals must be borne by all members, Watts cites California Code of Regulations, title 10, section 2792.16(a). That regulation provides, "Regular assessments to defray expenses attributable to the ownership, operation and furnishing of common interests by the Association shall ordinarily be levied against each owner according to the ratio of the number of subdivision interests owned by the owner assessed to the total number of interests subject to assessments." Watts' reliance on the regulation is misplaced for a number of reasons. First, it applies to subdivision developers. Watts cites no authority that 8 it also applies to continuing operations of a common interest development. Second, the regulation is qualified by the word "ordinarily." (Ibid.) It clearly does not state an immutable rule. Third, the regulation applies to "[r]egular assessments." (Ibid.) Watts cites no authority that it applies to the type of use fees at issue here. Watts' reliance on the Association's Articles of Incorporation, Article II, paragraph (d), is also misplaced. The paragraph under the heading "General Purposes" states in part: "To fix and establish the fees, dues and assessments that each member of this corporation shall pay to this corporation for the purpose of providing funds to carry out the community purposes and objects of this corporation, and to receive and collect such fees, dues and assessments[.]" Nothing in the paragraph provides that each member shall pay the same amount regardless of his or her activities on the premises. It does, however, confirm the power of the Association to impose fees as well as assessments. Thus it confirms the power of the Association to impose the type of fees at issue here. Watts' reliance on Laguna Royale Owners Association v. Darger (1981) 119 Cal.App.3d 670, 685 ("Laguna Royale"), is misplaced. There, a common interest development was built on a 99-year ground lease. Defendants purchased a unit in the development. Later, the defendant transferred undivided interests to three other families. No more than one family would use the unit at a time and each of the four families agreed to 13-week periods of exclusive use. The ground lease contained a provision prohibiting transfer of the unit without the development association's approval. The association refused to approve the transfer on the ground, among others, that use by the four families would place an undue burden on the other owners in their use and enjoyment of their units so as to be inconsistent with their quiet enjoyment and maintenance of security. The trial court invalidated the assignments. The Court of Appeal reversed. In reversing, the Court of Appeal affirmed that the association had the authority to enact reasonable regulations on the use and alienation of the condominiums. (Laguna Royale, supra, 119 Cal.App.3d at p. 682.) The court also 9 determined that the reason given for refusing consent to the transfer is rationally related to the proper operation of the property and purposes of the association. (Id., at p. 686.) The court concluded, however, there was no evidence that consecutive use of the unit by the four families one at a time would be so disruptive as to interfere substantially with the other owners' use and enjoyment or the maintenance of security. (Id., at p. 687.) The court pointed out that the association's bylaws allowed leasing of a unit for 90 days or more, a use more intense than the 13 weeks excusive use agreed to by each of the four families. (Ibid.) If anything, Laguna Royale is favorable to the Association. It confirms the authority of the Association to enact reasonable regulations governing transfers so as to preserve the owner's quiet enjoyment of the premises and the maintenance of security. There was simply no evidence in Laguna Royale that four, 13-week periods of occupation by a single family would have a significant impact on the enjoyment of the premises by other owners or on security. Here there is more than ample evidence that short-term rentals have such significant impacts. III. Watts contends the judgment is not based on the evidence. Watts' statement of facts cites the evidence in a light most favorable to himself. But that is not how we view the evidence. In viewing the evidence, we look only to the evidence supporting the prevailing party. (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 872.) We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact. (Ibid.) Where the trial court or jury has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 376, pp. 434-435.) The trier of fact is not required to believe even uncontradicted testimony. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.) Watts' failure to state the evidence favorable 10 to the judgment waives the contention on appeal. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) In any event, Watts' only argument is that the uncontroverted evidence proved the Association's true purpose in enacting its rules and regulations is to keep Oak Shores private by making it expensive to rent. But Watts confuses uncontroverted evidence with credible evidence. The trier of fact may reject even uncontradicted evidence as lacking sufficient verity. (Sprague v. Equifax, supra, 166 Cal.App.3d at p. 1028.) IV. Watts contends the trial court erred in adopting the proportionality test in determining the reasonableness of the fees. Former section 1366.1 prohibits an association from imposing or collecting "an assessment or fee that exceeds the amount necessary to defray the costs for which it is levied." At trial, Watts argued the Association was required to conduct time and motion studies to determine the correct amount of the fees. The trial court rejected Watts' argument. In its statement of decision the court stated the issue is whether "rough proportionality" between the fees and costs is sufficient to comply with the statute. The court found that the evidence established a "reasonably close" relationship between each contested fee and the cost it is intended to offset. The court concluded that relationship satisfied former section 1366.1. Nothing in the language of former section 1366.1 requires the exact correlation between the fee assessed and the costs for which it is levied that Watts appears to demand. In some instances, such an exact correlation may be impossible to obtain. In other instances, the costs of studies necessary to obtain an exact study may be prohibitive, requiring the Association to add the costs to the fees. The "golden rule" for statutory interpretation is that where several alternative interpretations exist, the one that appears the most reasonable prevails. (Stewart v. Bd. of Medical Quality Assurance (1978) 80 Cal.App.3d 171, 179.) The most 11 reasonable interpretation of former section 1366.1 is that it requires nothing more than a reasonable good faith estimate of the amount of the fee necessary to defray the cost for which it is levied. Whether the court uses the term "roughly proportional" or "reasonably close" the test has been met here. In Foothills Townhome Association v. Christiansen (1998) 65 Cal.App.4th 688, a homeowners association imposed a special assessment of $1,300 against each owner. The assessment was to replenish the association's reserve fund, which had been depleted paying for storm damage. The reserve fund could be used for purposes other than storm damage. An owner challenged the assessment as violating former section 1366.1. The court upheld the amount of the assessment on the ground that there was no showing that the usual reserve balance was excessive or that the amount of the assessment pushed the fund above its usual balance. (Foothills, supra, at p. 694.) The court did not require a precise correlation between the amount of the assessment and the cost for which it was levied. Watts argues that the Association should be bound by its admissions made during discovery that no studies to determine costs associated with the fees were conducted. The discovery to which Watts refers were interrogatories answered in February 2007. Trial began in April 2011. At trial, the Association produced evidence of studies that supported the fees. Watts points to no place in the record where the Association's witnesses were asked to explain the apparent discrepancy between the interrogatory responses and their testimony. Nor does Watts cite any authority in support of his argument requiring the trial court to reject the Association's evidence at trial. Watts has failed to carry his burden of showing error on appeal. (See In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278 [judgment presumed correct, error must be affirmatively shown].) Watts claims that the garbage fees were initiated January 1, 2001, without ever being adopted by the Association as required by former section 1357.100, subdivision (a) (repealed by Stats. 2012, ch. 180, § 1, now § 4340). But 12 that statute simply defines "'operating rule.'" (Ibid.) It does not set forth any particular procedure for adopting any rule. Moreover, it defines operating rule as a "regulation." (Ibid.) The garbage fee is not a regulation. It is simply a cost the Association passes through to the owners of the developed lots. Watts claims the Board adopted or increased fees and fines by simply including them in the budget. But he cites no authority prohibiting the Board from adopting or increasing fees and fines in that manner. In any event, Watts' entire contention is based on a view of the evidence most favorable to himself. Watts fails to cite the evidence most favorable to the judgment. That evidence includes the testimony of Karen Conlon, an expert on homeowners associations. She testified the Association met the standard of care on notice of rules and fee charges. Board members also testified that Board meetings agenda and minutes were posted on the Association's website. Watts has waived the contention on appeal. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) V. Watts contends the trial court abused its discretion in denying its motions in limine. (a) Watts argues the trial court should not have permitted the testimony of six "persons most qualified" ("PMQs") who were not designated during discovery. During discovery, the Association designated Robert Lever as its PMQ for purposes of a deposition. Bandy Smith, an Association manager verified responses to written discovery. Watts made a motion in limine to exclude Board member witnesses who were not designated as a PMQ. In opposing the motion, the Association pointed out that the discovery designating its PMQ was made years prior to the trial. Lever is no longer on the Board and is not an agent or employee of the Association. In written discovery 13 responses, the Association identified others with knowledge of the issues. It even provided Watts with a historical list of Board members, officers and employees. The trial court denied the motion. Watts cites no authority to support its argument that the trial court abused its discretion. Moreover, preclusion discovery sanctions are generally not imposed unless a party fails to obey a discovery order or engages in repeated and willful refusal to permit discovery. (See Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398-1399.) Watts points to none of those factors here. (b) Watts argues the trial court abused its discretion in granting the Association's motion in limine. The Association moved to exclude evidence that it breached its fiduciary duty by incurring $300,000 in attorney fees to pursue its cross-complaint. The cross-complaint was to recover the fees owing. Watts points out that the amount was within the jurisdiction of the small claims court. Watts does not contest that the Association has the right and duty to collect all properly imposed fees and assessments. He cites no authority prohibiting the Association from retaining an attorney to enforce its rights. This case does not involve a simple question whether Watts had paid the fees. Instead, the case involves the more complex question whether the Association has the power to impose the fees. If enforcing the Association's rights to the fees cost $300,000, it is not because the Association breached a fiduciary duty; it is because Watts resisted paying lawfully imposed fees. Watts simply had no viable claim for a breach of fiduciary duty. VI. Watts contends the award of fees and costs was excessive. The court awarded the Association $1,180,646.50 on the complaint and $27,730 on the cross-complaint. Former section 1354, subdivision (c) provided, "In an action to enforce the governing documents, the prevailing party shall be awarded reasonable 14 attorney fees and costs." Watts argues the action did not involve a challenge to the validity of the governing documents. It may be true that Watts did not challenge the validity of the governing documents. But the statute applies to actions to "enforce the governing documents." (Ibid.) Watts' action challenged the right of the Association to enforce the governing documents by enacting and attempting to collect fees and assessments pursuant to those documents. The action clearly comes within that statute. Thus an award of fees was appropriate. Watts makes no challenge to any specific item of attorney fees and costs. Instead, he states that the award was punitive. He argues the court rewarded the Association for vigorously litigating the case in order to make a statement and precedence for future litigation. Watts ignores that he initiated the action and vigorously litigated in order to make a statement and create precedence Watts could have avoided all attorney fees and costs simply by declining to bring the instant unmeritorious action and by paying the Association the few thousand dollars it was properly demanding. Watts claims the trial court found the cross-complaint should not have been brought. The trial court only stated it would have made "better sense" to obtain a tolling agreement, or file and stay the collection matter. But the Association had every right to bring the cross-complaint on which it unequivocally prevailed. The court did find the $250,000 the Association was requesting on the cross-complaint was excessive and awarded only $27,730. Robert C. Burlison, Jr., argues he was not a party to the complaint and thus fees on the complaint cannot be awarded against him. The trial court's ruling states that fees are awarded to Oak Shores. The trial court's ruling also states, "No request has been made to apportion this award." Nevertheless, the Association does not contest Burlison's point on appeal. 15  The attorney fee portion of the judgment against Robert C. Burlison, Jr., is only on the cross-complaint. In all other respects, the judgment is affirmed. Costs on appeal are awarded to respondent and against all appellants. NOT TO BE PUBLISHED. GILBERT, P. J. We concur: YEGAN, J. PERREN, J. 16  Charles S. Crandall, Judge Superior Court County of San Luis Obispo ______________________________ Burlison Law Group, Robert C. Burlison, Jr., for Plaintiffs, Cross- defendants and appellants Ken Watts, Joyce Watts and Lynda Burlison. Burlison Law Group, Robert C. Burlison, Jr., for Cross-defendant Robert C. Burlison, Jr. Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Michael B. Wilk, Caroline E. Chan, Ryan D. Harvey; Adams Kessler, Adrian J. Adams, Gary S. Kessler, Paul S. Ablon, Aide C. Ontiveros for Defendant, Cross-complainant and Respondent. 

[Cite as Carter v. R&B Pizza Co., Inc., 2010-Ohio-5937.] STATE OF OHIO, JEFFERSON COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT BENITA CARTER, ) ) PLAINTIFF-APPELLANT, ) ) V. ) CASE NO. 09 JE 34 ) R&B PIZZA CO., INC., ET AL., ) OPINION ) DEFENDANTS-APPELLEES. ) CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common Pleas of Jefferson County, Ohio Case No. 04CV239 JUDGMENT: Reversed. Judgment for Plaintiff- Appellant. APPEARANCES: For Plaintiff-Appellant Attorney Jack N. Turoff 20320 Farnsleigh Road Shaker Heights, Ohio 44122 For Defendant-Appellee Richard Cordray Ohio Attorney General Eric Tarbox Assistant Attorney General 150 East Gay Street, 22nd Flr. Columbus, Ohio 43215-3130 JUDGES: Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Mary DeGenaro Dated: December 6, 2010 [Cite as Carter v. R&B Pizza Co., Inc., 2010-Ohio-5937.] DONOFRIO, J. {¶1} Plaintiff-appellant, Benita Carter, appeals from Jefferson County Common Pleas Court judgments denying her motion for directed verdict and denying her motions for judgment notwithstanding the verdict or for a new trial. A jury verdict was entered in favor of defendant-appellee, the Administrator of the Bureau of Workers’ Compensation, finding that appellant was not entitled to workers’ compensation benefits. {¶2} This is the second time this case has been before this court. In Carter v. R&B Pizza Co., Inc., 7th Dist. No. 06-JE-5, 2008-Ohio-1530, at ¶`3-4, we set out the following pertinent facts: {¶3} “Benita Carter is said to have run R & B Pizza Company, Inc., dba Pizza Express, a business located next to her house in Cadiz, Ohio. She was the vice president, treasurer and secretary, and her husband was the sole stockholder and president. (Tr. 156-157). Her husband also owned Wise Guys Pizza, Inc., dba Speedies Pizza, a business he operated in Midland, Pennsylvania. {¶4} “In September 2001, Ms. Carter was driving on Route 22 in Jefferson County when a drunk driver entered oncoming traffic and crashed into her vehicle. She filed for Ohio workers' compensation benefits claiming that she had been delivering pizza supplies from the Pennsylvania pizza store to R & B Pizza in Ohio. When her application was denied and the Industrial Commission refused her appeal, she filed a complaint and notice of appeal in the trial court.” {¶5} The case went to trial where the jury returned a verdict in favor of appellee. The trial court granted appellant’s motion for a new trial finding that the judgment was not supported by the weight of the evidence because appellant was clearly an employee acting within the scope of her employment when the accident occurred. On appeal, we found that the trial court’s decision to grant a new trial was correct, but for reasons other than those put forth by the trial court. We found that the jury was erroneously charged on the definition of “employee,” and therefore, the jury’s verdict was unreliable. Id. at ¶47.  -2- {¶6} Consequently, this case proceeded to a new trial on June 30, 2009. This time the parties stipulated that appellant was an employee of R&B. Thus, the only issue for the jury was whether appellant was acting in the scope of her employment when the accident occurred. At the close of evidence, appellant moved for a directed verdict. The trial court overruled the motion. Subsequently, the jury returned a verdict in favor of appellee finding that appellant is not entitled to participate in the Ohio Workers’ Compensation Fund. {¶7} Appellant subsequently filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, motion for a new trial. The trial court denied appellant’s motions. {¶8} Appellant filed a timely notice of appeal on September 17, 2009. {¶9} Appellant raises five assignments of error. Her first and fifth assignments of error are related and therefore, we will address them together. They state, respectively: {¶10} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO FIND THAT BENITA CARTER WAS ACTING WITHIN THE SCOPE OF HER EMPLOYMENT AS A MATTER OF LAW.” {¶11} “THE TRIAL COURT’S REFUSAL TO GRANT APPELLANT’S MOTION FOR J.N.O.V. OR NEW TRIAL RESULTED IN A GROSS MISCARRIAGE OF JUSTICE BASED ON THE FACTS OF THIS CASE.” {¶12} Appellant argues that, in ruling on her motions for directed verdict and JNOV, the trial court failed to consider the liberal construction of workers’ compensation law in favor of finding coverage for the employee. Appellant asserts that there was no evidence to contradict that she was acting within the scope of her employment at the time of the accident. Given the lack of contradictory evidence and the liberal construction of workers’ compensation law, appellant argues the court should have granted her motion for directed verdict. She contends that appellee’s arguments in rebuttal were focused on weight of the evidence and witness credibility. Instead, appellant argues that the appropriate test was one of sufficiency.  -3- {¶13} A motion for directed verdict tests the sufficiency of the evidence at trial, not the weight of such evidence or the credibility of witnesses. Northeast Ohio Elite Gymnastics Training Ctr., Inc. v. Osborne, 183 Ohio App.3d 104, 2009-Ohio-2612, at ¶6, citing Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284. The court shall grant a motion for a directed verdict when, “after construing the evidence most strongly in favor of the party against whom the motion is directed, [it] finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party.” Civ.R. 50(A)(4). {¶14} When ruling on a motion for JNOV, the trial court applies the same test applied to a motion for a directed verdict. Boardman Tp. Park Dist. v. Boardman Supply Co. (Jan. 23, 2001), 7th Dist. No. 99-CA-297. In ruling on a JNOV motion, courts do not consider the weight of the evidence or witness credibility, but simply consider whether sufficient evidence exists to support the verdict. Wells Fargo Financial Leasing Inc. v. Gilliland, 4th Dist. Nos. 05CA2993, 05CA3006, 2006-Ohio- 2756, at ¶28. If substantial competent evidence supports the non-moving party, and reasonable minds could reach different conclusions about that evidence, the court must deny the motion. Id. at ¶ 27. {¶15} An appellate court reviews a trial court's rulings on motions for directed verdict and for JNOV de novo because they present questions of law. Peam v. Daimler Chrysler Corp. (2002), 148 Ohio App.3d 228, 240; Julian v. Creekside Health Center, 7th Dist. No. 03-MA-21, 2004-Ohio-3197, at ¶8. {¶16} We must examine the relevant evidence presented at trial to determine whether the trial court properly denied appellant’s motions for directed verdict and JNOV. {¶17} Ronald Carter, appellant’s ex-husband, testified that he owned two pizza shops, R&B Pizza Express in Cadiz, Ohio and Speedies Pizza in Pennsylvania. (Tr. 108). He testified that he ran the Pennsylvania shop and appellant ran the Ohio shop. (Tr. 109-110).  -4- {¶18} On the day of the accident, Ronald testified that he and appellant went together to the Pennsylvania shop. (Tr. 112). Ronald stated that appellant accompanied him that day so that she could meet with their bookkeeper. (Tr. 112). He stated that appellant had to go over the monthly bookwork for the Ohio store. (Tr. 112). Ronald stated that appellant travelled to Pennsylvania once a month to meet with the bookkeeper regarding the books for the Ohio store, which she kept track of. (Tr. 112-13). Additionally, Ronald stated that appellant had to pick up pizza supplies for the Ohio store. (Tr. 113). This was something that she did two or three times a week. (Tr. 113). {¶19} Although appellant was scheduled to meet the bookkeeper that day, Ronald testified the bookkeeper never showed up. (Tr. 116). He stated that the bookkeeper frequently stood them up. (Tr. 116). While appellant was waiting on the bookkeeper, Ronald stated that he went to a bar up the street to help them fix some equipment. (Tr. 116-17). He stayed at the bar for a few hours and had a few drinks. (Tr. 118-20). {¶20} Ronald also testified about the pizza supplies. He identified a bill for the pizza supplies for the Ohio store dated the day of the accident. (Tr. 120-21, Ex. 5). These supplies were in appellant’s car at the time of the accident. (Tr. 121). The supplies included: pizza sauce, flour, salad oil, cheese, pepperoni, wings, beef slices, breast fillets, sausage, yeast, meatballs, bacon crumbles, anchovies, and foil. (Ex. 5). He stated that he and appellant were taking the supplies to the Ohio store that night because some of them were perishable and needed to be refrigerated right away. (Tr. 123-24, 137). He also identified a picture of appellant’s vehicle taken after the crash depicting the contents of the vehicle, including many of the supplies. (Tr. 124; Ex. 1). {¶21} Appellant’s and Ronald’s son, Ronald Carter Jr., also testified. He stated that he worked in both pizza shops for some time. (Tr. 144). He testified that his mother ran the Ohio pizza shop while his father ran the Pennsylvania shop. (Tr.  -5- 144). Ronald Jr. stated that he saw his mother work at the Pennsylvania shop a few times. (Tr. 145). {¶22} Finally, appellant testified. Like Ronald, she testified that Ronald owned both pizza shops, that she ran the Ohio shop, and that he ran the Pennsylvania shop. (Tr. 162-64). Appellant stated that she usually had two employees. (Tr. 164). In 2001, however, she stated that the Ohio store was suffering financially and she could no longer afford help. (Tr. 165). She stated too that she started buying her supplies from Pennsylvania because the Pennsylvania store was doing well and she could buy supplies on credit there. (Tr. 165-66). She stated that she usually went to Pennsylvania twice a week to pick up supplies. (Tr. 167, 171). Additionally, appellant testified that she went to Pennsylvania approximately once a month to meet with the bookkeeper. (Tr. 167-68, 171). She stated that she frequently had to wait for the bookkeeper to show up and sometimes, the bookkeeper failed to keep their appointments. (Tr. 168). {¶23} As to the day of the accident, appellant testified that she and Ronald left Ohio a little after 2:00 p.m. (Tr. 172). She stated that the purpose of her trip was twofold: she was going to meet with the bookkeeper and she was going to pick up supplies for the Ohio store. (Tr. 173). {¶24} Upon arriving in Pennsylvania, appellant testified that the bookkeeper never showed up. (Tr. 174). Appellant testified that this was not unusual as the bookkeeper frequently missed their appointment. (Tr. 174). Appellant stated that she waited at the Pennsylvania shop for the bookkeeper. (Tr. 174). Appellant stated that the only time she did any work in the Pennsylvania shop was if she was there waiting on supplies for the Ohio store or for the bookkeeper and the employees needed help answering the phone or taking an order. (Tr. 175). {¶25} While she waited at the Pennsylvania shop, appellant stated that Ronald went to help the owner of the bar down the street fix some equipment. (Tr. 176). While she waited, she made calls to the Ohio shop to see if they were running low on any supplies and if they needed them right away and made calls to the  -6- bookkeeper to see if she was coming. (Tr. 177). Appellant stated that the supplies for the Ohio store were delivered around 6:00 p.m. and Ronald returned around 10:00 p.m. (Tr. 177-78). She testified that the two of them loaded up her vehicle with the supplies and she began to drive home. (Tr. 178). Included in the supplies, appellant stated, were chicken wings, pizza sauce, cheese, flour, pepperoni, sausage, buns, and tomatoes. (Tr. 178-79). Some of these items were perishable so appellant intended to put them away as soon as they got back to Ohio. (Tr. 179). {¶26} Appellant stated that the only reason she ever went to Pennsylvania was for business purposes. (Tr. 184). {¶27} On cross examination, appellant stated that she never worked in the Pennsylvania store. (Tr. 185). And she testified that the bookkeeper became unreliable when her husband became ill in the past year. (Tr. 185-86). She stated that on the day of the accident, while she was in Pennsylvania, her son’s friend was running the Ohio shop. (Tr. 187). But she then stated she was unsure whether he was there that night or not. (Tr. 188). {¶28} Because appellee conceded that appellant was an employee, the only issue in this case was whether appellant was within the scope of her employment when the accident occurred. Generally, scope of employment questions are questions of fact for the jury to determine. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 330. However, when reasonable minds can come to only one conclusion, scope of employment becomes an issue of law. Id. To determine the issue as a matter of law, the material facts must be undisputed. Id. {¶29} In this case, the uncontroverted evidence demonstrated that appellant was within the scope of her employment when the accident occurred. The following facts are undisputed. {¶30} Appellant and Ronald left Ohio shortly after 2:00 p.m. and drove to the Pennsylvania shop. Appellant’s purposes in making this trip were (1) to meet with the bookkeeper regarding the Ohio shop’s monthly accounting and (2) to pick up supplies for the Ohio shop. As part of running the Ohio shop, appellant travelled to  -7- Pennsylvania at least once a month to meet with the bookkeeper and at least twice a week to pick up supplies. {¶31} The bookkeeper never showed up, however, this was not unusual. While waiting on her husband to return to the shop, appellant made calls to the bookkeeper to see if she was coming and also to the Ohio shop to see if they needed the supplies immediately. The supplies were delivered to the Pennsylvania shop around 6:00 p.m. Sometime after 10:00 p.m., Ronald returned to the Pennsylvania shop and he helped appellant load the supplies into her vehicle. Appellant’s vehicle was loaded with pizza sauce, pepperoni, chicken wings, flour, cheese, and various other pizza-shop supplies. Appellant was driving and was going directly to the Ohio shop to refrigerate the perishable supplies. While en route, the accident occurred. {¶32} Appellee did not contradict these critical facts. It only attempted to call appellant’s credibility into question by raising questions as to whether anyone was running the Ohio shop while she was gone, whether she ever worked in the Pennsylvania shop, and why appellant was using a bookkeeper on whom she could not rely. None of this testimony challenged the above established facts. {¶33} The evidence in this case was not complicated. There simply was not sufficient evidence to support the jury’s verdict. Even when construing the evidence in the light most favorable to appellee, reasonable minds could only conclude that appellant was within the scope of her employment. Thus, the trial court should have granted appellant either a directed verdict or a JNOV. Accordingly, appellant’s first and fifth assignments of error have merit. {¶34} Appellant’s second, third, and fourth assignments of error state, respectively: {¶35} “AS A MATTER OF LAW, THE BUREAU OF WORKERS COMPENSATION SHOULD HAVE BEEN ESTOPPED FROM DENYING THAT BENITA CARTER WAS NOT ACTING WITHIN THE SCOPE OF EMPLOYMENT.” {¶36} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT UNREASONABLY EXCLUDED THE AMENDED POLICE REPORT WHICH  -8- FURTHER DETAILS THE CONTENTS OF BENITA CARTER’S VEHICLE AT THE TIME OF THE ACCIDENT.” {¶37} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT UNREASONABLY EXCLUDED RONALD CARTER’S TESTIMONY THAT HIS OWN WORKERS’ COMPENSATION CLAIM FOR THE EXACT SAME ACCIDENT WAS GRANTED.” {¶38} Given our resolution of appellant’s first and fifth assignments of error, her second, third, and fourth assignments of error are moot. {¶39} For the reasons stated above, the trial court’s judgment is hereby reversed and judgment is entered in favor of appellant. Appellant is entitled to participate in the Ohio Workers’ Compensation Fund. Waite, J., concurs. DeGenaro, J., concurs. 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1556 BISMARK KWAKU TORKORNOO, Plaintiff - Appellant, v. MARY TORKORNOO; JACQUELINE E. NGOLE, Esquire; NINA HELWIG, Esquire (BIA); JOHN C. MONAHAN, Esquire; JUDGE CYNTHIA CALLAHAN; MASTER CLARK WISOR, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:15-cv-00980-PJM) Submitted: July 21, 2015 Decided: July 23, 2015 Before WILKINSON and MOTZ, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Bismark Kwaku Torkornoo, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Bismark Kwaku Torkornoo appeals the district court’s order dismissing without prejudice his suit challenging Maryland domestic-relations proceedings for lack of subject-matter jurisdiction. * We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Torkornoo v. Torkornoo, No. 8:15-cv-00980-PJM (D. Md. Apr. 29, 2015). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED * We conclude that the dismissal order is final and appealable. See In re GNC Corp., ___ F.3d ___, ___, 2015 WL 3798174, at *9 n.3 (4th Cir. June 19, 2015) (discussing standard for determining finality of order). 2 

10-3492 Wu v. Holder BIA Vomacka, IJ A097 519 821 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 15th day of August, two thousand twelve. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 JON O. NEWMAN, 10 PIERRE N. LEVAL, 11 Circuit Judges. 12 _____________________________________ 13 14 FEI YUN WU, 15 Petitioner, 16 17 v. 10-3492 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Xin Miao, Flushing, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Jennifer Paisner Williams, 28 Senior Litigation Counsel; Colette 05212012-26  1 J. Winston, Attorney; Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, D.C. 5 UPON DUE CONSIDERATION of this petition for review of a 6 decision of the Board of Immigration Appeals (“BIA”), it is 7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 8 review is DENIED. 9 Petitioner Fei Yun Wu seeks review of an August 9, 10 2010, decision of the BIA, affirming the March 2, 2009, 11 decision of Immigration Judge (“IJ”) Alan A. Vomacka, 12 denying his application for asylum, withholding of removal, 13 and relief under the Convention Against Torture (“CAT”). In 14 re Fei Yun Wu, No. A097 519 821 (B.I.A. Aug. 9, 2010), aff’g 15 No. A097 519 821 (Immig. Ct. N.Y. City Mar. 2, 2009). We 16 assume the parties’ familiarity with the underlying facts 17 and procedural history of this case. 18 Under the circumstances of this case, we have reviewed 19 the IJ’s decision as modified by the BIA. See Xue Hong Yang 20 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 21 Therefore, because the BIA assumed Wu’s credibility, we do 22 not consider his challenges to the IJ’s adverse credibility 23 findings. Id. The applicable standards of review are well- 24 established. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 25 157-58 (2d Cir. 2008). 05212012-26 2  1 Wu, a native and citizen of the People’s Republic of 2 China, sought relief from removal based on his claim that he 3 fears persecution because he has had more than one child in 4 the United States, which they contend is in violation of 5 China’s population control program. For largely the same 6 reasons as this Court set forth in Jian Hui Shao, 546 F.3d 7 138, we find no error in the agency’s decisions. See id. at 8 158-72. While the petitioners in Jian Hui Shao were from 9 Fujian Province, Wu is from Zhejiang Province. However, as 10 with the evidence discussed in Jian Hui Shao, the evidence 11 Wu submitted relating to Zhejiang Province is deficient 12 either because it does not discuss forced sterilizations or 13 because it references isolated incidents of persecution of 14 individuals who are not similarly situated. See id. at 160- 15 61, 171-72. 16 Furthermore, contrary to Wu’s contention, the agency 17 provided a separate analysis of his CAT claim, and did not 18 err in summarily denying that claim insofar as it was based 19 on the same factual predicate as his asylum and withholding 20 of removal claims or insofar as it was based on his 21 purported illegal departure from China. See Paul v. 22 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (recognizing that 23 withholding of removal and CAT claims necessarily fail if 05212012-26 3  1 the applicant is unable to show the objective likelihood of 2 persecution needed to make out an asylum claim and the 3 factual predicate for the claims is the same); see also Mu 4 Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d 5 Cir. 2005) (finding that a petitioner is not “entitled to 6 CAT protection based solely on the fact that she is part of 7 the large class of persons who have illegally departed 8 China.”). 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, Wu’s motion for a 11 stay of removal in connection with this petition is DENIED 12 as moot. Any pending request for oral argument in this 13 petition is DENIED in accordance with Federal Rule of 14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 15 34.1(b). 16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 05212012-26 4 

797 F.2d 978 Petersonv.State 85-3953 United States Court of Appeals,Ninth Circuit. 8/7/86 1 D.Or. AFFIRMED

In the United States Court of Appeals For the Seventh Circuit ____________________  No. 14‐2484  ASHOKE DEB,  Plaintiff‐Appellant,  v.  SIRVA, INC., et al.,  Defendants‐Appellees.  ____________________  Appeal from the United States District Court for the  Southern District of Indiana, Indianapolis Division.  No. 1:13‐cv‐01245‐TWP‐DML — Tanya Walton Pratt, Judge.  ____________________  ARGUED OCTOBER 29, 2015 — DECIDED AUGUST 11, 2016  ____________________  Before FLAUM, MANION, and ROVNER, Circuit Judges.  ROVNER, Circuit Judge. Ashoke Deb contracted with an In‐ dian  moving  company,  Allied  Lemuir,  to  move  his  belong‐ ings from Calcutta, India to St. John’s, Canada, but his belong‐ ings  never  left  India.  He  now  seeks  to  hold  the  defendants,  two  United  States  companies,  SIRVA,  Inc.  and  Allied  Van  Lines, Inc., responsible for the improper disposal and loss of  his  personal  property  in  connection  with  his  move.  SIRVA  and Allied moved to dismiss the complaint, arguing that Deb  2  No. 14‐2484  had failed to state a claim for which the court could grant re‐ lief, that he had failed to join a necessary party, and that the  United States federal courts were not the proper venue for his  claim. The district court agreed with the latter argument and  dismissed on the grounds of forum non conveniens. Deb ap‐ peals. Because we have determined that the district court did  not hold the defendants to their burden of demonstrating that  India was an available and adequate forum for this litigation,  we vacate and remand the case to the district court to do so.  I.  Because  the  defendants,  SIRVA  and  Allied  Van  Lines,  moved to dismiss, we will construe the facts in the plaintiff’s  favor  for  now,  but  will  discuss  the  nuances  of  our  assump‐ tions below. Jackson v. Payday Fin., LLC, 764 F.3d 765, 773, n.19  (7th Cir. 2014), cert. denied, 135 S. Ct. 1894 (2015).  In  August,  2009,  in  preparation  for  his  move  from  Cal‐ cutta, India to his current home in St. John’s in the Province  of Newfoundland and Labradour, Canada, Deb, a citizen and  resident of Canada, contracted with an Indian company, Al‐ lied Lemuir, to move his personal belongings from Calcutta  to St. John’s. Deb’s belongings, however, never left India. On  September 5, 2009, Allied Lemuir e‐mailed Deb and informed  him that sea freight charges had risen substantially, and con‐ sequently, Deb  would need to pay an  additional amount of  money to have the items shipped. Deb refused to pay the ad‐ ditional amount and demanded that Allied Lemuir fulfill its  obligations  under  the  contract  as  written.  At  the  same  time  that Deb was attempting to settle matters with Allied Lemuir  in India, he also contacted the defendants, the United States  companies of SIRVA and Allied Van Lines, in an effort to ob‐ tain  his  personal  goods.  Furthermore,  from  December  2010  No. 14‐2484  3 until May 2011, Deb’s Canadian counsel attempted to resolve  the issue with an attorney for Allied Van Lines Canada (“Al‐ lied Canada”).   Allied Lemuir sent Deb a letter dated January 30, 2010, de‐ manding additional charges that had accrued for demurrage,  fumigation,  renewal  of  customs  clearance,  and  sea  freight.  The  letter  stated  that  if  Deb  failed  to  remit  payment  within  seven days, it would assume he was no longer interested in  the shipment. Deb did not respond to the letter directly, but  rather relied on his Canadian lawyer to pursue a resolution  by  other  means,  including  by  contacting  the  defendants  in  this case and corresponding with them over the course of sev‐ eral months. On August 11, 2010, SIRVA’s claim services de‐ partment responded to Deb’s inquiries, stating that they were  unable to identify any record of Deb’s shipment in SIRVA’s  system,  but  stated  that  if  the  move  was  through  Allied  or  North American, the claims service representative would for‐ ward the message to the proper party if Deb provided a reg‐ istration number. According to a letter dated August 26, 2010,  which Deb says he did not receive until it was sent to his coun‐ sel  on  April  12,  2013,  Allied  Lemuir  eventually  sold  Deb’s  property  to  pay  the  additional  amounts  it  had  demanded  from Deb.   Deb filed a legal action against Allied Canada in the Su‐ preme Court of Newfoundland and Labrador, Canada, in the  Trial Division on November 5, 2010. And, a few years later,  on July 12, 2013, while the Canadian case was still pending,  he filed his complaint in this case in the Indiana State Superior  Court against SIRVA and Allied Van Lines, both of which are  Delaware corporations with their principal place of business  4  No. 14‐2484  in  Illinois  and  corporate  offices  in  Indiana.1  On  August  5,  2013,  the  defendants  jointly  filed  a  successful  notice  of  re‐ moval in the district court in the southern district of Indiana.  Deb  seeks to  hold  SIRVA  and  Allied  Van  Lines  responsible  for the damages from the improper disposal and ultimate loss  of  his  personal  property,  which  he  alleges  include  original  works  of  intellectual  property  that,  together  with  his  other  personal belongings, exceed a value of $75,000. His amended  complaint alleges that SIRVA and Allied Van Lines are liable  to Deb as “joint venturers.” (R. 27, pp. 3‐4, Page ID 286‐287)  (Plaintiff’s Supp. App. B003‐B004).   The district court granted the defendants’ motion to dis‐ miss on June 6, 2014, based on the ground of forum non con‐ veniens, noting that both India and Canada offered appropri‐ ate alternative forums for the action. Deb appeals.   II.  A.  The defendants filed their motion to dismiss pursuant to  Federal  Rule  of  Civil  Procedure  12(b)(6)  (failure  to  state  a  claim  upon  which  relief  can  be  granted),  12(b)(7) (failure  to  join  a  party),  and  12(b)(3)  (improper  venue).  Subsumed  within this last category were the common law principles of  forum non conveniens and abstention. The district court dis‐ missed the case on the ground of forum non conveniens.                                                    1 The district court stated that SIRVA has its principal place of business in  Indiana. Deb v. SIRVA Inc., No. 1:13‐CV‐01245‐TWP, 2014 WL 2573465, at  *1 (S.D. Ind. June 6, 2014) (R. 55 at p.2, Page ID 740), but this appears to be  incorrect. See Declaration of Abigail M. Jones, Memorandum in Support  of Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint, Exhibit  1, ¶ 6.  No. 14‐2484  5 As  the  Latin  name  suggests,  the  doctrine  of  forum  non  conveniens addresses the matter of convenience to the parties.  As the Supreme Court explained,  A federal court has discretion to dismiss a case  on the ground of forum non conveniens when  an alternative forum has jurisdiction to hear the  case, and trial in the chosen forum would estab‐ lish oppressiveness and vexation to a defendant  out of all proportion to plaintiff’s convenience,  or the chosen forum [is] inappropriate because  of considerations affecting the court’s own ad‐ ministrative and legal problems.  Sinochem Intʹl Co. v. Malaysia Intʹl Shipping Corp., 549 U.S. 422,  429 (2007) (citing a long line of Supreme Court precedent) (in‐ ternal  citations  omitted).  Today,  the  doctrine  applies  in  the  federal  courts  only  when  the  other  jurisdiction  is  a  foreign  one.2 Stated more simply, a district court may dismiss a case  on  forum  non  conveniens  grounds  when  it  determines  that  there are “strong reasons for believing it should be litigated  in  the  courts  of  another,  normally  a  foreign,  jurisdiction.”  Fischer v. Magyar Allamvasutak Zrt., 777 F.3d 847, 866, cert. de‐ nied, 135 S. Ct. 2817 (2015) (citing Sinochem, 549 U.S. at 429‐30).  A dismissal for forum non conveniens is “committed to the  sound discretion of the trial court” and “may be reversed only                                                    2 The common law doctrine of forum non conveniens has continuing ap‐ plication in federal courts only in cases where the alternative forum is a  foreign  one.  Otherwise,  if  the  issue  is  one  of  convenience  within  the  United States federal court system, the Federal Rules of Civil Procedure  allow for transfer, rather than dismissal, when a sister federal court is the  more  convenient  forum.  See  28  U.S.C.  §§  1404(a),  1406(a);  Sinochem,  549 U.S. 422, 430.  6  No. 14‐2484  when there has been a clear abuse of discretion.” Piper Aircraft  Co. v. Reyno, 454 U.S. 235, 257 (1981); Abad v. Bayer Corp., 563  F.3d 663, 665 (7th Cir. 2009).  The doctrine of forum non conveniens, however, is an ex‐ ceptional one that a court must use sparingly. Gulf Oil Corp. v.  Gilbert, 330 U.S. 501, 504, 509 (the doctrine should be applied  only in “exceptional circumstances,” and “rather rare cases.”)  See  also  Carijano  v.  Occidental  Petroleum  Corp.,  643 F.3d  1216,  1224 (9th Cir. 2011) (“The doctrine of forum non conveniens  is a drastic exercise of the court’s inherent power … . There‐ fore, we have treated forum non conveniens as an exceptional  tool  to  be  employed  sparingly.”)  “[U]nless  the  balance  is  strongly in favor of the defendant, the plaintiff’s choice of fo‐ rum should rarely be disturbed. Gulf Oil, 330 U.S. at 504.  The exceptional nature of a dismissal for forum non con‐ veniens means that a defendant invoking it ordinarily bears a  heavy burden in opposing the plaintiff’s chosen forum. Sino‐ chem, 549 U.S. at 430; Gulf Oil, 330 U.S. at 508; In re Hudson,  710 F.3d 716, 718 (7th Cir. 2013); In re Factor VIII or IX Concen‐ trate Blood Products Litigation, 484 F.3d 951, 956 (7th Cir. 2007).  A heavy burden is appropriate, because if the doctrine is suc‐ cessfully invoked, the result is not a transfer to another court  but a dismissal, and the plaintiff will not be able to refile his  case in any other court if the statute of limitations has run. In  re Hudson, 710 F.3d at 718.  When a plaintiff’s choice is not his home forum, however,  the  presumption  in  the  plaintiff’s  favor  “applies  with  less  force,” for the assumption that the chosen forum is appropri‐ ate is in such cases “less reasonable.” Sinochem, 549 U.S. at 430  (citing Piper Aircraft, 454 U.S. at 255–56). In U.S.O. Corp. v. Mi‐ zuho Holding Co., 547 F.3d 749, 752 (7th Cir. 2008), we noted  No. 14‐2484  7 that “[I]f the plaintiff is suing far from home, it is less reason‐ able  to  assume  that  the  forum  is  a  convenient  one.  …  [and  T]he risk that the chosen forum really has little connection to  the litigation is greater.”) (citing In re Factor VIII or IX Concen‐ trate Blood Products Litigation, 484 F.3d at 956.) It is true that  Deb  lives  in  Newfoundland,  Canada  and  not  the  United  States, but although the citizenship of the plaintiff defending  against a forum non conveniens claim is relevant to the issue  of convenience, it is not dispositive of the issue. See, e.g., Scot‐ tish Air Intʹl, Inc. v. British Caledonian Grp., PLC, 81 F.3d 1224,  1232 (2d Cir. 1996). As we noted in the blood products litiga‐ tion, the issue is not so much about the foreign citizenship of  the plaintiff, but rather what that foreign nationality might in‐ dicate about the convenience to the plaintiff. In re Factor VIII  or IX Concentrate Blood Products Litig., 484 F.3d at 956. In other  words, when a plaintiff is suing far from home  the  risk  that  the  chosen  forum  really  has  little  connection to the litigation is greater. We do not  understand this as any kind of bias against for‐ eign plaintiffs. That would be inconsistent with  many  treaties  the  United  States  has  signed  as  well  as  with  the  general  principle  that  our  courts are open to all who seek legitimately to  use  them.  It  is  instead  a  practical  observation  about convenience. A citizen of Texas who de‐ cided to sue in the federal court in Alaska might  face  an  equally  skeptical  court,  which  might  conclude that convenience requires a change in  venue  under  the  federal  statutory  counterpart  to forum non conveniens.  8  No. 14‐2484  Id. at 956. Nonetheless, it is undoubtedly true that although  Deb is not a citizen or resident of the United States, litigation  in Indiana would be far more convenient from a geographical  perspective than one in India. And in any case, even if we ap‐ ply the presumption in favor of Deb with less force, it is still  the defendants’ burden to oppose the chosen forum.   In short, as we consider whether the district court exerted  permissible discretion to dismiss the case on forum non con‐ veniens grounds, we consider whether it properly placed the  burden on the defendants to demonstrate that a finding of fo‐ rum non conveniens was within the realm of appropriate con‐ clusions.  To determine whether a dismissal for forum non conven‐ iens is appropriate, a court first must determine if an alterna‐ tive and adequate forum is available and then go on to bal‐ ance  the  interests  of  the  various  participants.  We  start  with  the availability of the forum because, “[a[s a practical matter,  it makes little sense to broach the subject of forum non con‐ veniens unless an adequate alternative forum is available to  hear the case. Therefore, the first step in any forum non con‐ veniens  inquiry  is  to  decide  whether  such  a  place  exists.”  Kamel v. Hill‐Rom Co., 108 F.3d 799, 802 (7th Cir. 1997) (citing  Piper Aircraft, 454 U.S. at 254 n.22). The availability of the fo‐ rum is really a two‐part inquiry involving availability and ad‐ equacy. In re Factor VIII or IX Concentrate Blood Products Litig.,  484 F.3d at 957. “An alternative forum is available if all parties  are amenable to process and are within the forum’s jurisdic‐ tion. An alternative forum is adequate when the parties will  not be deprived of all remedies or treated unfairly.” Id. (citing  Kamel, 108 F.3d at 803). Adequacy only comes into play to the  No. 14‐2484  9 extent that the remedy would be so inadequate that for all in‐ tents and purposes the forum is not available. Piper Aircraft,  454  U.S.  at  255,  n.22.  A  forum  is  not  inadequate  merely  be‐ cause the law in the foreign jurisdiction is less favorable to the  party opposing dismissal. Id. at 247, 250; Stroitelstvo Bulgaria  Ltd.  v.  Bulgarian‐Am.  Enter.  Fund,  589 F.3d  417,  421  (7th  Cir.  2009).  We begin, therefore, by looking to the defendants to see if  they have met their burden of establishing that an alternative  forum is available and adequate. Fischer, 777 F.3d at 867. After  demonstrating  that  India  offered  an  adequate  forum,  we  would  go  on  to  balance  the  interests  by  focusing  on  the  (1)  relative ease of access to sources of proof; (2) availability of  compulsory process and costs for attendance of witnesses; (3)  possibility  of  viewing  the  premises,  if  appropriate;  and  (4)  other  practical  issues,  including  the  ease  of  enforcement  of  any  ultimate  judgment.  See  Gulf  Oil,  330  U.S.  at  508.  As  we  will describe, however, we need not go on to balance the in‐ terests, because we conclude that the defendants have failed  to show there was an available and adequate forum available  elsewhere.   B.  The district court concluded that there were “two possible  forums that satisfy this requirement” of an alternate available  forum—Canada  and  India.  Deb  v.  SIRVA  Inc.,  No. 1:13‐CV‐ 01245‐TWP, 2014 WL 2573465, at *3 (S.D. Ind. June 6, 2014) (R.  55 at 5, Page ID 744). We begin first with the analysis of India  as an alternate forum. The defendants argued that India was  an appropriate forum because the Indian courts could exer‐ cise jurisdiction over Allied Lemuir, and “assuming, arguendo,  10  No. 14‐2484  that Deb’s joint venture theory is correct, and SIRVA and [Al‐ lied Van Lines] were doing business in India as Allied Lemuir,  and, therefore, responsible for the joint venture’s actions, the  Indian  courts  would  be  able  to  exercise  jurisdiction  over  SIRVA and [Allied Van Lines].” Defendants’ brief at 19‐20.  It is worth stopping for a moment to unpack the defend‐ ants’ argument further. Recall that Deb contracted with Allied  Lemuir to move his belongings. The failed contract was with  Allied  Lemuir.  Deb  never  sued  Allied  Lemuir,  but  instead  sued  two  United  States  companies,  the  defendants  here,  SIRVA and Allied Van Lines. As we just explained, in order  for a district court to dismiss this case for forum non conven‐ iens,  the  defendants  have the  burden of  demonstrating that  an  alternate  forum  is  available—in  other  words,  that  Deb  could sue these defendants, SIRVA and Allied Van Lines, in  India. And the only way that Deb can sue SIRVA and Allied  Van Lines in India is if the defendants had something to do  with the wrongdoing that occurred in India—either that they  broke the contract and sold the goods (which we know they  did  not  do)  or  they  have  some  legally  sufficient  affiliation  with Allied Lemuir that would allow the Indian courts to ex‐ ert jurisdiction over them.  Oddly, in order to support dismissal for forum non con‐ veniens then, the defendants end up trying to thread a small‐ eyed needle by claiming, on the one hand, that they could be  subject to jurisdiction in India, while simultaneously refusing  to acknowledge an actual legal affiliation with Allied Lemuir.  To do this, the brief on appeal dances around these issues by  making  naked  assertions  such  as,  “the  District  Court  also  properly found that the Indian courts would be able to exer‐ cise  jurisdiction  over  SIRVA  and  [Allied  Van  Lines],  even  No. 14‐2484  11 without their consent,” or by trying to connect Allied Lemuir  with the defendants without really connecting them:  Here, as the District Court correctly found, the  Indian Courts may exercise jurisdiction over Al‐ lied  Lemuir  as  a  resident  of  India  that  con‐ ducted business in India. Further, as the District  Court  determined,  assuming  arguendo,  that  Deb’s  joint  venture  theory  is  correct,  and  that  SIRVA and [Allied Van Lines] were doing busi‐ ness  in  India  as  Allied  Lemuir,  and,  therefore,  responsible  for  the  joint  venture’s  actions,  the  Indian courts would be able to exercise jurisdic‐ tion  over  SIRVA  and  [Allied  Van  Lines]  be‐ cause:  (1)  Allied  Lemuir  is  an  Indian  corpora‐ tion  and  resident;  and  (2)  SIRVA  and  [Allied  Van Lines] would have been doing business in  India and responsible for the joint venture’s ac‐ tions.  Defendants’ brief at 16, 19. All of these assertions depend on  the notion that SIRVA and Allied Van Lines were somehow  connected with Allied Lemuir. But it is the defendant’s bur‐ den to demonstrate that forum non conveniens is appropriate,  and the only evidence to support this contention comes from  the bald assertions in the plaintiff’s compliant that SIRVA and  Allied Van Lines were doing business in India as a joint ven‐ ture with Allied Lemuir.   The plaintiff’s assertion, to which the defendants’ point to  support a dismissal, is that Allied Lemuir is a member of the  SIRVA Group and is part of a joint venture with SIRVA and  Allied Van Lines. (R. 27, pp. 2‐3, Page ID 285‐286) (Plaintiff’s  12  No. 14‐2484  Supp.  App.  B002‐B003).  To  support  that  assertion,  Deb  at‐ tached to the complaint some marketing materials that Allied  Lemuir posted on the internet boasting of its affiliation with  SIRVA and Allied Van Lines. Id. at Ex. C. Of course, at this  point, in the current posture of a motion to dismiss, the de‐ fendants’  affiliation  with  SIRVA  and  Allied  Van  Lines  has  never  been  questioned,  tested  or  explored.  All  we  have  is  some pages printed out from the internet in which a foreign  company with the word “Allied” in its name is asserting in  marketing  material  that  it  is  reliable  because  it  is  affiliated  with two international companies, one of which also has the  name “Allied” in its name. The material has not been authen‐ ticated  or  verified,  no  court  has  ever  made  a  determination  about any connection between Allied Lemuir and the defend‐ ants in this case, and the defendants have never admitted any  connection  to  Allied  Lemuir.  This  is  so  because  this  case  comes before us on a motion to dismiss in which a court can‐ not determine the truth of factual assertions. When consider‐ ing a motion to dismiss, the district court ordinarily assumes  the truth of all well‐pleaded allegations in the plaintiff’s com‐ plaint. Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 826 (7th Cir.  2015). But this rule is less absolute when considering a motion  to  dismiss  under  Federal  Rule  12(b)(3)  than  under  Rule  12(b)(6). Under Rule 12(b)(3), which allows for dismissal for  improper venue, the district court assumes the truth of the al‐ legations  in  the  plaintiff’s  complaint,  unless  contradicted  by  the defendant’s affidavits. 5B Charles Alan Wright & Arthur  R. Miller, Federal Practice and Procedure § 1352 (2004). Rule  12(b)(3) is a somewhat unique context of dismissal in that a  court may look beyond the mere allegations of a complaint,  No. 14‐2484  13 and need not view the allegations of the complaint as the ex‐ clusive basis for its decision. Estate of Myhra v. Royal Caribbean  Cruises, Ltd., 695 F.3d 1233, 1239 (11th Cir. 2012).   This Circuit has not had the opportunity to discuss the in‐ tricacies of the assumptions a court should make when a de‐ fendant contradicts the plaintiff’s bald assertion of venue in a  motion  to  dismiss  for  improper  venue  under  Rule  12(b)(3),  but we have before concluded that, when considering a mo‐ tion to dismiss in general, a court may consider matters out‐ side of the pleadings to resolve factual questions pertaining  to  jurisdiction,  process,  or  indispensable  parties.  English  v.  Cowell,  10  F.3d  434,  437  (7th  Cir.  1993).  Moreover,  other  cir‐ cuits to have considered the question agree that it is appropri‐ ate for a district court to look outside the complaint, or partic‐ ularly  at  a  defendant’s  contradictory  statements,  when  con‐ sidering a motion to dismiss under Rule 12(b)(3). For exam‐ ple, the Second Circuit has noted:  If the defendant presents evidence that venue is  improper  and  the  plaintiff  responds  with  con‐ trary  evidence,  “it  may  be  appropriate  for  the  district court to hold a Rule 12(b)(3) motion in  abeyance  until  the  district  court  holds  an  evi‐ dentiary  hearing  on  the  disputed  facts.”  Mur‐ phy, 362 F.3d at 1139. … “Alternatively, the dis‐ trict  court  may  deny  the  Rule  12(b)(3)  motion  while granting leave to refile it if further devel‐ opment  of  the  record  eliminates  any  genuine  factual issue.” Id.  Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1261 (10th Cir.  2012). And the Ninth Circuit has noted that when the outcome  of  a  12(b)(3)  motion  might  have  a  “dramatic  effect  on  the  14  No. 14‐2484  plaintiff’s  forum  choice  …  no  disputed  fact  should  be  re‐ solved against that party until it has had an opportunity to be  heard.” Murphy v. Schneider Natʹl, Inc., 362 F.3d 1133, 1139 (9th  Cir. 2004); Pierce v. Shorty Smallʹs of Branson Inc., 137 F.3d 1190,  1192 (10th Cir. 1998) (“Plaintiff contends that in responding to  a  motion  to  dismiss  for  improper  venue,  he  was  entitled  to  rely  upon  the  well  pled  facts  of  his  complaint.  This  is  true,  however, only to the extent that such facts are uncontroverted  by defendant’s affidavit.”); Home Ins. Co. v. Thomas Indus., Inc.,  896 F.2d 1352, 1355 (11th Cir. 1990) (“When a complaint is dis‐ missed on the basis of improper venue without an evidentiary  hearing, the plaintiff must present only a prima facie showing  of venue. … Further, [t]he facts as alleged in the complaint are  taken as true to the extent they are uncontroverted by defend‐ ants’ affidavits.”) (internal citations omitted).   Ordinarily  these  cases  speak  of  the  ability  of  a  court  to  view evidence of the party moving to dismiss (the defendant)  in  order  to  rebut  the  allegations  of  the  non‐movant’s  (the  plaintiff’s)  complaint  asserting  facts  supporting  its  chosen  venue.  This  case  is  unique  in  that,  in  an  unusual  course  of  events, the defendants cite to the plaintiff’s bare allegation of a  joint venture in the complaint in order to support their con‐ tention that the case should be dismissed under Rule 12(b)(3).  But the general premise is the same. Where one party makes  a bald claim of venue and the other party contradicts it, a dis‐ trict  court  may  look  beyond  the  pleadings  to  determine  whether the chosen venue is appropriate.  It is worth noting that the plaintiff’s burden in defending  a  motion  to  dismiss  is  low.  Other  than  the  exceptions  dis‐ cussed, a court generally accepts the plaintiff’s allegations as  No. 14‐2484  15 true for purposes of the motion to dismiss, as long as the com‐ plaint contains sufficient factual allegations to state a claim for  relief that is legally sound and plausible on its face. Ashcroft v.  Iqbal, 556 U.S. 662, 678 (2009). The defendants’ burden in al‐ leging  forum  non  conveniens,  however,  is  heavy.  Sinochem,  549 U.S. at 430. Defendants must submit evidence of an ade‐ quate  and  alternative  forum.  Combining  the  principles  we  discussed above—that the district court may look beyond the  bare  allegations  of  the complaint where the  defendants  dis‐ pute  facts  related  to  venue,  and  that  defendants  bear  the  heavy burden of showing an alternate forum—we look to see  whether the district court placed the burden on the defend‐ ants  to  demonstrate  that  an  alternate  forum  was  available,  and  whether  the  defendants  met  that  burden.  We  conclude  that the district court did not hold the defendants to the bur‐ den,  nor  did  the  defendants  meet  it.  To  the  contrary,  to  the  extent the defendants offered any evidence or argument at all,  it was evidence that they would not, in fact, be subject to ju‐ risdiction in India.   Much of the language of the Defendants’ Memorandum in  Support of its Motion to Dismiss argues that they had nothing  to do with Allied Lemuir’s actions and thus could not be as‐ sociated  with  the  Indian  company.  The  defendants  do  not  even offer any evidence that they were doing business in In‐ dia. If, in fact, the defendants had nothing to do with Deb’s  loss and have no connection to Allied Lamuir, an Indian court  would have no business asserting jurisdiction over them. In  short, rather than supporting their burden of demonstrating  that there is an available and alternative forum in India, they  instead offer allegations that they would not be subject to ju‐ risdiction in India. For example, in their briefing below on the  motion to dismiss, the defendants state the following:  16  No. 14‐2484  Deb’s assertion that Defendants had an agency,  joint venture, or any other kind of relationship  among themselves, with Allied Lemuir, or any‐ one else that could impute liability on Defend‐ ants  for  breach  of  contract  or  conversion  is  equally unavailing. Deb has failed to offer any  evidence  of  a  joint  venture  or  even  alleged  an  association of two or more persons to carry out  a single business enterprise for profit.   Memorandum in Support of Defendants’ Motion to Dismiss  Plaintiff’s  Amended  Complaint  at  10.  (R.  30,  p.10,  Page  ID  414).  The  memorandum  is  replete  with  similar  allegations  which,  if  true,  would  seem  to  lead  to  the  conclusion  that  a  court in  India could  not assert  jurisdiction over the defend‐ ants. For example, the defendants state:  •  “While Deb makes much ado about a self‐serving, unau‐ thenticated  Allied  Lemuir  document  (Amended  Complaint  Ex. C) purporting to demonstrate that Allied Lemuir was cre‐ ated  as  a  joint  venture  between  Lemuir,  [Allied  Van  Lines]  and several other Allied companies, merely calling a relation‐ ship a ‘joint venture’ does not mean that a joint venture ex‐ ists.” Id. (internal citation omitted);  •  “Deb added allegations in an attempt to bolster his asser‐ tion that SIRVA and [Allied Van Lines] are liable to Deb for  the acts of Allied Lemuir as ‘joint venturers’ (which they are  not). Id. at 2, (R. 30, p.2, Page ID 406);  •  “Defendants  are  Delaware  Corporations  that  are  not  in  privity  with  Deb,  and  have  never  conducted  any  business  with him. Further, Deb has failed to establish any ‘joint ven‐ ture’  or  agency  relationship  between  or  among  Defendants  No. 14‐2484  17 and Allied Lemuir (and in particular, at the time of the ship‐ ment) or any reason to believe that Deb had transacted with  anyone other than Allied Lemuir to transport his belongings.”  Id.;   •  “Defendants  have  never  conducted  business  or  entered  into any agreements with Deb … Instead Plaintiff’s dealings  in  transporting  his  household  belongings  have  been  exclu‐ sively with Allied Lemuir, a legally separate entity.” Id. at 3, (R.  30, p.3, Page ID 407) (emphasis ours);   •  “Defendants are not liable to Deb under common agency  principles when Defendants never agreed to act as principal  creating any sort of agency relationship between Defendants  and Allied Lemuir as to this shipment.” Id. at 10, (R. 30, p.10,  Page ID 414);   •  “Defendants  cannot  be  held  liable  to  Deb  for  Allied  Lemuir or anyone else’s actions under a joint venture, agency,  apparent authority, or any other theory, and Deb’s Amended  Complaint must be dismissed for his failure to state a claim  upon which relief can be granted.” Id. at 12, (R. 30, p.12, Page  ID 416)  •  Allied  Lemuir,  a  separate  and  distinct  Indian  company,  not  a  party  to  this  lawsuit,  arranged  with  Deb  to  transport  Deb’s belongings from India to Canada. Id. at 15, (R. 30, p.15,  Page ID 419);  •   “Even  assuming  the  veracity  of  these  facts  (which  De‐ fendants dispute) Deb has failed to assert cognizable or viable  claims. There was no mistaking that Deb was dealing exclu‐ sively  with  Allied  Lemuir  for  this  shipment.  Not  one  docu‐ 18  No. 14‐2484  ment memorializing the transaction governing the transpor‐ tation  of  Deb’s  personal  belongings  mentions  SIRVA  or  AVL.” Id. at 11, (R. 30, p.11, Page ID 415).  Having spent so much time asserting that they had no re‐ lationship  with  Allied  Lemuir,  it  is  no  wonder  that  the  de‐ fendants were left to make broad conclusory allegations about  India as an available forum. In its memorandum in support of  the motion to dismiss, under the section labeled “India is an  Available Forum” the defendants correctly note that the case  law requires that “all parties must be subject to the jurisdic‐ tion of the foreign court and amenable to process.” Id. at 20  (R. 30, p.2, Page ID 424). They then baldly assert that “India  meet[s] the requirements of an adequate alternative forum.”  Id. at 20. That is the whole of the defendants’ claim that India  is  an  available  forum.3  They  do  not  offer  any  evidence  that  they  would  be  subject  to  jurisdiction  in  India,  but  rather  simply conclude without reasoning, law, or concessions that  India is an adequate alternative. The defendants cannot have  it both ways. They cannot vehemently deny any connection  with the underlying actions giving rise to this litigation or any  connection to Allied Lemuir, and simultaneously assert that  the plaintiff could sue them in an Indian court. If there is an                                                    3 In their brief before this court, the defendants argue that Deb only chal‐ lenged the adequacy of India as a forum but not the availability. It was,  however, the defendants’ burden to meet in the first instance. Sinochem,  549 U.S. at 430. And in any event, Deb explicitly argued below and in his  brief on appeal that the “Defendants fail to provide evidence that they are  subject to jurisdiction in India.” Plaintiff’s Brief at 13, Plaintiff’s Response  in  Opposition  to  Defendant’s  Motion  to  Dismiss  at  20  (Plaintiff’s  Supp.  Appendix B060).  No. 14‐2484  19 independent basis on which an Indian court might assert ju‐ risdiction over the defendants, unconnected to the facts of this  case, the defendants have not noted it.  Without any evidence or a concession to the jurisdiction of  the  Indian  courts,  whatever  the  burden  defendants  had  to  show an adequate and alternative forum in India, there can  be no doubt that the defendants did not meet it. And their ap‐ pellate  brief  is  no  more  illuminating.  The  defendants’  argu‐ ment  on  the  adequacy  of  India  as  a  forum  in  this  court  is  simply that “the District Court correctly determined that Can‐ ada  and  India  were  available  alternative  forums.”  Defend‐ ants’ brief at 11‐12. And because the defendants have no evi‐ dence, they rely upon a 1978 case from the Second Circuit for  the  proposition  that  the  district  court  need  “nothing  more  than a belief” that the Indian courts would be able to exercise  jurisdiction.  Defendants’  brief  at  15  (citing  Schertenlieb  v.  Traum, 589 F.2d 1156, 1163 (2d Cir. 1978). The defendants de‐ duce  this  principle  from  language  of  the  Schertenlieb  case  which states “that a district court should not dismiss unless it  justifiably believes that the alternative forum will take jurisdic‐ tion, if the defendant consents.” Id. (emphasis ours). In addi‐ tion to being an almost 40 year old case from a different cir‐ cuit, the Schertenlieb case not only does not help the defend‐ ants, it undermines their argument entirely. To begin, the lan‐ guage of the case requires a “justifiable belief”—presumably  one supported by evidence. Id. We can assume this is so be‐ cause  in  Schertenleib,  the  Second  Circuit  affirmed  the  lower  court’s dismissal on forum non conveniens grounds based on  three strong factors that demonstrated that an alternate forum  was  available:  first,  the  court  had  expert  testimony  that  the  defendant could be subject to jurisdiction in the foreign forum  if the defendant conceded to jurisdiction there; second, it had  20  No. 14‐2484  the defendant’s actual concession to jurisdiction in the foreign  forum;  and  third,  the  court  also  secured  the  defendant’s  agreement to waive the statute of limitations should the case  need to return to the district court in the United States. Id. at  1160,  1166.  In  this  case,  on  the  other  hand,  the  defendants’  only argument is that the district court “properly found that  the Indian courts would be able to exercise jurisdiction over  SIRVA  and  AVL,  even  without  their  consent.”  Defendants’  brief at 16. The defendants do not tell us why that finding was  proper, particularly when it was based on the district court’s  naked  belief—without  evidence,  without  expert  testimony,  and  without  a  concession  to  jurisdiction.  Nothing  in  the  Schertenleib  case  stands  for  the  proposition  that  a  district  court’s unsupported belief that a defendant would be subject  to jurisdiction in a foreign court, without more, is enough to  grant a motion to dismiss for forum non conveniens. In fact,  the cases clearly refute the idea that a district court’s mere be‐ lief is enough and instead place in the hands of the defendant  the burden (and generally a heavy one) of demonstrating the  availability  and  adequacy  of  the  foreign  forum.  Atl.  Marine  Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568,  583 n.8 (2013); Sinochem, 549 U.S. at 430; Gulf Oil, 330 U.S. at  508; Fischer, 777 F.3d at 867; In re Hudson, 710 F.3d at 718; In re  Factor VIII or IX Concentrate Blood Products Litigation, 484 F.3d  at 956; U.S.O. Corp. v. Mizuho Holding Co., 547 F.3d 749, 749– 50 (7th Cir. 2008); In re Ford Motor Co., Bridgestone/Firestone N.  Am. Tire, LLC, 344 F.3d 648, 652 (7th Cir. 2003).   The defendants also argue that the district court was not  required to condition the dismissal of Deb’s complaint on the  defendants’  concession  to  jurisdiction  in  India.  Defendant’s  brief at 16‐17 (citing Leetsch v. Freedman, 260 F.3d 1100, 1104  (9th Cir. 2001)). This may be so, but a concession is merely one  No. 14‐2484  21 form of evidence that a defendant can present to meet her bur‐ den of demonstrating that a foreign jurisdiction will be avail‐ able and adequate. This is precisely what the Leetsch court ex‐ plains:  there  is  no  “inflexible  test  requiring  conditional  dis‐ missal” but rather, “a district court can be required to impose  conditions if there is a justifiable reason to doubt that a party  will  cooperate  with  the  foreign  forum.”  Leetsch,  260  F.3d  at  1104. The defendants’ many arguments disavowing any con‐ nection to Allied Lemuir and the events giving rise to this lit‐ igation  give  this  court  more  than  fair  pause  about  whether  they will cooperate with the Indian forum. The defendants in  this case have not consented to jurisdiction in India and have  offered not one shred of evidence that they would be subject  to jurisdiction in India.   In contrast to the matter before us, in the cases in which  one party successfully moved to dismiss a case for forum non  conveniens, that party presented evidence of an available and  adequate alternate forum or made a concession that it would  accept  service  and  jurisdiction  there  in  order  to  guarantee  availability of the alternate forum. For example, in Fischer, the  district  court  had  before  it  a  list  of  the  available  remedies,  plaintiffs’  concerns  with  bringing  suit  in  the  foreign  forum,  and expert testimony from both sides as to whether those con‐ cerns  were  enough  to  render  the  forum  inadequate.  Fischer,  777  F.3d  at  867.  In  the  blood  products  litigation,  the  court  heard  expert  testimony  from  experienced  British  lawyers,  some of whom supported the plaintiffs and others who sup‐ ported the drug companies, and eventually accepted the de‐ fendants’ claim of an available alternative forum, but only af‐ ter the defendants agreed to accept service in the United King‐ dom. In re Factor VIII or IX Concentrate Blood Products Litig., 484  F.3d at 956‐57. And in Kamel, 108 F.3d at 803, the defendant  22  No. 14‐2484  expressly  consented  to  Saudi  Arabia’s  jurisdiction  and  then  submitted the affidavit of an expert in Saudi Arabian law to  assure the court that Saudi law would recognize the defend‐ ant’s consent to jurisdiction or have jurisdiction even without  consent. Id. Once again we note that the defendants here of‐ fered no evidence, no experts, and no concession. The district  court abused its discretion by finding that the Indian courts  “should be able to exercise jurisdiction over the Defendants”  without placing the burden on the defendants to demonstrate  that this was so. See Deb, 2015 WL 2372465, at *3 (R. 55 at 6,  Page ID 745).  To the extent that the defendant offers any information in  support of its burden, it is the generalized conclusion that in  other  cases,  involving  other  facts  and  other  parties,  courts  have determined that India is an adequate forum. Memoran‐ dum in Support of Defendants’ Motion to Dismiss Plaintiff’s  Amended Complaint at 21 (R. 30, p.21, Page ID 425). The de‐ fendants cite cases to argue that India’s legal system, like ours,  was  inherited  from  the  British,  and  that  its  remedies  for  breach of contract and conversion are similar to ours. Id. Such  generalized information does not meet the burden that the de‐ fendants  must  satisfy  to  demonstrate  that  Deb  realistically  could sue SIRVA and Allied Van Lines in India.  The  defendants’  newly  introduced  references  to  Indian  law fail for the same reason. In this court, the defendants have  attached documents purporting to be from the Indian Code of  Civil  Procedure  and  case  law  from  a  jurisdiction  in  India.  These documents are not in the record and were never pre‐ sented to the district court. A party appealing a Rule 12(b)(6)  dismissal may elaborate on his factual allegations so long as  the  new  elaborations  are  consistent  with  the  pleadings,  No. 14‐2484  23 Geinosky v. City of Chicago, 675 F.3d 743, 745, n.1 (7th Cir. 2012),  and we assume that the same would be true for a Rule 12(b)(3)  dismissal. But SIRVA and Allied are not the parties opposing  dismissal here. They had their shot at bearing the burden of  demonstrating that the United States was an inconvenient fo‐ rum. The question we face in this appeal is whether the dis‐ trict court properly dismissed this case under the doctrine of  forum  non  conveniens  without  holding  the  defendants  to  their burden of demonstrating that there was an available and  adequate remedy elsewhere. It did not.  Deb argues in his reply brief that the new documents do  not even address the power of the Indian courts to exercise  personal jurisdiction. We do not know what they do or do not  assert. The relevant point is that they were not made part of  the record below and have never been authenticated nor sub‐ ject to an adversarial process in which the parties had an op‐ portunity to argue about their meaning and import.  We can conclude that the district court failed to hold the  defendants  to  any  burden—whether  heavy  or  not—of  demonstrating  that  there  is  an  alternate  available  and  ade‐ quate forum for this litigation.  C.  The district court also ostensibly based its forum non con‐ veniens dismissal on the basis that Canada offered a second  possible  forum.  Its  only  discussion  of  the  matter,  however,  was to say:  In this case, there are two possible forums that  satisfy  this  requirement.  Mr.  Deb  has  already  filed a claim in the Canadian courts arising out  of the same course of conduct that gave rise to  24  No. 14‐2484  the instant case, and he does not argue that the  Canadian court forum is somehow improper.  Deb, 2014 WL 2573465, at *3 (R. 55, p.5, Page ID 744).   The parties never briefed the issue of the Canadian court  as an alternative forum, however. The discussion about Can‐ ada  in  the  briefing  below  centered  on  whether  the  United  States courts ought to abstain from hearing this matter under  the Colorado River doctrine. See Colo. River Water Conservation  Dist. v. United States, 424 U.S. 800, 817 (1976).4 That doctrine  allows  courts  to  conserve  judicial  resources  by  abstaining  from accepting jurisdiction when there is a parallel proceed‐ ing elsewhere. Id. It has sometimes been applied when iden‐ tical concurrent litigation is, as in this case, pending abroad.  See U.S.O. Corp., 547 F.3d at 750. Abstention under the Colo‐ rado River doctrine may only be used in “exceptional” circum‐ stances  if  it  would  promote  “wise  judicial  administration.”  Freed v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1018 (7th  Cir. 2014).  The determinations under the Colorado River doctrine for  abstention  are  not  the  same  as  those  made  when  deciding  whether  a  case  should  be  dismissed  for  forum  non  conven‐ iens.  Our  decision  in  Adkins  v.  VIM  Recycling,  Inc.,  644  F.3d  483,  498‐99  (7th  Cir.  2011)  provides  a  concise  description  of                                                    4  In  their  Memorandum  in  Support  of  Defendants’  Motion  to  Dismiss  Plaintiff’s Amended Complaint, the defendants merely state that Canada  would also be an appropriate alternate forum for the reasons indicated in  their argument about Colorado River abstention. But such undeveloped ar‐ guments are waived. Rahn v. Bd. of Trs. of N. Ill. Univ., 803 F.3d 285, 295  (7th Cir. 2015), cert. denied, 136 S. Ct. 1685 (2016).  No. 14‐2484  25 the process for determining whether Colorado River abstention  is appropriate:  First, the court must determine whether the con‐ current  state  and  federal  actions  are  actually  parallel.  If  so,  the  court  must  consider  second  whether  exceptional  circumstances  justify  ab‐ stention.  …  Two  suits  are  parallel  for  Colorado  River  purposes  when  substantially  the  same  parties  are  contemporaneously  litigating  sub‐ stantially the same issues. Precisely formal sym‐ metry is unnecessary. A court should examine  whether the suits involve the same parties, arise  out  of  the  same  facts,  and  raise  similar  factual  and  legal  issues.  In  essence,  the  question  is  whether there is a substantial likelihood that the  [foreign] litigation will dispose of all claims pre‐ sented in the federal case. Any doubt regarding  the parallel nature of the [state] suit should be  resolved in favor of exercising jurisdiction.   Id.  The  district  court  did  not  engage  in  a  Colorado  River  ab‐ stention analysis. Nor did it ever engage in a forum non con‐ veniens  analysis  about  Canada  similar  to  the  one  we  de‐ scribed above for India. Other than its first assertion that Can‐ ada was a possible forum, all of its discussion pertained to In‐ dia  as  a  forum.  It  is  true  that  Deb  sued  Allied  Canada  in  a  Canadian court, but  again, we have no idea  whether Allied  Canada has any connection to the defendants in this case, let  alone whether they are “substantially the same party” (see Ad‐ kins, 644 F.3d at 498) and the defendants did not offer any ev‐ idence that they would be subject to jurisdiction in Canada.   26  No. 14‐2484  In sum, although it is within a district court’s sound dis‐ cretion to dismiss a suit for forum non conveniens (Piper Air‐ craft, 454 U.S. at 257), it can only do so after placing the burden  on the defendant to demonstrate availability and adequacy of  an  alternative  forum.  The  district  court  erred  by  failing  to  properly place the burden. It may be that after conducting a  proper look into the adequacy of the forum along with a bal‐ ancing of the interests, the court may determine that a dismis‐ sal for forum non conveniens is indeed appropriate. Based on  the bare claims before the district court, however, such a de‐ termination was in error. The defendants may refile their mo‐ tion in an attempt to meet their burden. For that reason we  VACATE the decision of the district court and REMAND for  further proceedings consistent with this opinion.  

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7485 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RICHARD DONNELL RUDISILL, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:01-cr-00048-7; 1:04-cv-00238) Submitted: March 7, 2007 Decided: April 13, 2007 Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges. Dismissed by unpublished per curiam opinion. Richard Donnell Rudisill, Appellant Pro Se. Thomas Richard Ascik, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Richard Donnell Rudisill seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2255 (2000) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Rudisill has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 2 - 

In the United States Court of Appeals For the Seventh Circuit No. 00-2665 United States of America, Plaintiff-Appellee, v. Donald M. Higgins, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. EV 99 15 CR 01--Richard L. Young, Judge. Argued December 1, 2000--Decided September 26, 2001 Before Posner, Diane P. Wood, and Williams, Circuit Judges. Diane P. Wood, Circuit Judge. From March to the end of May 1999, Donald Higgins carried out an elaborate scheme to defraud several banks, a car dealer, and others along the way. Caught red-handed in Jacksonville, Illinois, with two cars he had obtained with the bad checks, he wound up facing one charge of bank fraud in violation of 18 U.S.C. sec. 1344, to which he pleaded guilty. At the initial sentencing hearing, the district court imposed a sentence of 51 months in prison. Higgins appealed, but before this court heard his appeal, the government moved to remand the case for resentencing. The remand was granted. At this second sentencing hearing, Higgins moved for the first time to withdraw his guilty plea. The district court denied the motion on the ground that the limited nature of the remand did not permit consideration of the issue, but it reduced Higgins’s sentence to 41 months. Higgins now reasserts on appeal the argument that his guilty plea lacked an adequate factual basis and should have been set aside, and he attacks the new sentence. We find no error in the district court’s refusal to set aside the plea, but we agree with Higgins that the computation of the loss attributable to his scheme--crucial to the computation of the sentence--requires further attention. I Higgins began his scheme in March of 1999 by opening a bank account at Civitas Bank in Evansville, Indiana, under the name of E&S Enterprises. On April 16, 1999, Civitas closed the account because it had a negative balance and unpaid service fees of nearly $400. Civitas notified Higgins that his account had been closed. One month after the closure of the account, on May 17, 1999, Higgins went to Kenny Kent Lexus and expressed interest in buying two used Lexus automobiles. The dealership agreed to sell them to him for $69,900. Higgins gave the dealership a check in that amount drawn on the closed Civitas account. Perhaps anticipating Kenny Kent’s inevitable discovery that the account was closed, Higgins asked the dealer to hold the check because he was selling E&S Enterprises, closing the Civitas account, and taking his banking business to Old National Bank of Evansville (ONB); he promised to replace that check with another one drawn on the Evansville bank. Kenny Kent agreed to do so, and, to its later regret, allowed Higgins to take one of the cars with him that day. The next morning, Higgins went to ONB and asked to speak to the bank manager about opening a checking account. Higgins explained that he was dissatisfied with the service he had been receiving at Civitas and wanted to bring his banking business to ONB. As the initial deposit for his ONB account, Higgins presented the bank manager with a $420,000 check drawn on the closed E&S account at Civitas. The manager began preparing the documents to open the account while Higgins took the check to one of the tellers. The teller processed the check and gave Higgins a deposit slip indicating a $420,000 deposit. Higgins also received temporary checks for his new account. With this false evidence of substantial wealth in hand, Higgins left ONB and returned to Kenny Kent. He showed the dealer the $420,000 deposit slip and wrote out a new check for $69,990. Kenny Kent accepted the check and delivered the second car to Higgins on the spot. Meanwhile, back at ONB, the branch manager had checked with Civitas about Higgins’s check and discovered that there were no funds to cover it. ONB immediately stopped processing Higgins’s account application. Kenny Kent got the news that Higgins’s check was bad on May 21, 1999, and it promptly reported the fraud and the theft of the cars to the police. Three days later, the police caught up with Higgins in Jacksonville, Illinois. The trail must not have been too hard to follow: they found him there because the Holiday Inn where he was staying had reported that he used a worthless check drawn on yet another account, the First Bank of Jacksonville, to pay his lodging bill. Both Lexuses were still in the hotel’s parking lot. He was arrested and later indicted on one count of bank fraud against ONB, in violation of 18 U.S.C. sec. 1344, and one count of interstate transportation of stolen motor vehicles, in violation of 18 U.S.C. sec. 2312. In exchange for Higgins’s agreement to plead guilty to the bank fraud charge, the gov ernment dropped the interstate transportation charge. Higgins entered his guilty plea on October 19, 1999. The district court accepted the plea after conducting the usual inquiry under Fed. R. Crim. P. 11, which included an inquiry designed to ensure that there is an adequate factual basis for the plea. See Fed. R. Crim. P. 11(f). In fact, Higgins had stipulated to the facts underlying his plea in the plea agreement. The district court sentenced him to 51 months, in part based on its conclusion that the loss attributable to Higgins’s scheme was the full value of the bad check he deposited at ONB, that is, $420,000. The court’s later reduction of the sentence to 41 months was based on unrelated considerations and did not reflect any change in this loss calculation. Higgins now challenges both the district court’s acceptance of his guilty plea and the court’s loss calculation for purposes of sentencing. II Higgins argues that he should be permitted to withdraw his guilty plea to the bank fraud charge because the facts to which he stipulated are insufficient as a matter of law to support a conviction under 18 U.S.C. sec. 1344. Higgins concedes that he is raising this issue for the first time on appeal and that our review is at most for plain error. United States v. Cross, 57 F.3d 588 (7th Cir. 1995). Higgins is complaining that the facts that formed the basis of his conviction showed no more than the knowing deposit of a bad check and that this alone is not enough to support a bank fraud conviction. In order to support a conviction under sec. 1344(1), the government must prove that the defendant engaged in a "pattern or course of conduct designed to deceive a financial institution with the intent to cause actual or potential loss." United States v. Ledonne, 21 F.3d 1418, 1427-28 (7th Cir. 1994). It is not necessary for it to prove that the defendant made any specific misrepresentations or false statements. United States v. Doherty, 969 F.2d 425, 429 (7th Cir. 1992). Simply attempting to deposit a bad check does not constitute a scheme to defraud, id. at 427, but it can be evidence of a pattern or course of conduct designed to deceive a financial institution. Ledonne, 21 F.3d at 1428. To convict under sec. 1344(2), the government must prove both that the defendant engaged in a scheme to obtain the monies, funds, or credits of the financial institution and that the scheme involved "other acts or communications of misrepresentation." Id. at 1426. Again, merely writing a bad check is not enough to constitute bank fraud under this subsection; the defendant must, in addition, have made false representations or promises. Id. If Higgins were correct that he admitted under oath only the knowing deposits of bad checks, we would need to consider to what extent he would be entitled to reopen his guilty plea proceedings. But he is not: the facts to which Higgins agreed go well beyond the knowing deposit of a bad check and are sufficient to support a conviction under either sec. 1334(1) or sec. 1334(2). Higgins violated sec. 1334(1) when he presented the ONB bank manager with the $420,000 Civitas check, attempting (successfully) to induce ONB to open a checking account for him with a balance of $420,000 to which he could have immediate access through the temporary checks, which he could then use to purchase the Lexus automobiles. The deposit of the bogus $420,000 check and the use of ONB’s temporary checks evidenced Higgins’s intent to expose ONB to potential loss. It is of no consequence that ONB did not suffer any actual financial loss from the scheme, or even that such loss was highly unlikely. See United States v. Ryan, 213 F.3d 347, 350 (7th Cir. 2000). Higgins also satisfied the requirements for conviction under sec. 1334(2). He presented the $420,000 check to the ONB bank manager along with an elaborate tale about his dissatisfaction with Civitas and his desire to bring E&S’s banking business to ONB. Mirroring the strategy he apparently used with Kenny Kent Lexus, his false statements tended to allay concerns ONB might have about a check of that size, and they improved the chances that ONB would make funds available to Higgins without waiting for the check to clear. The fact that ONB’s bank manager had the good sense to investigate Higgins’s claims does not make Higgins any less guilty of bank fraud. The district court, therefore, properly denied Higgins’s motion to withdraw the plea. III In order to establish the appropriate sentencing range for bank fraud under the Sentencing Guidelines, the district court is required to determine the amount of loss attributable to the scheme. See U.S.S.G. sec. 2F1.1(b)(1); United States v. Bonanno, 146 F.3d 502, 509 (7th Cir. 1998). Comment 8 to U.S.S.G. sec. 2F1.1 instructs courts that "if an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss." The district court concluded that Higgins intended to impose on ONB a loss amounting to the entire $420,000--representing the amount of the bad Civitas check he deposited with ONB. The district court’s loss determination is a question of fact which we review for clear error. Bonanno, 146 F.3d at 508-09. The meaning of "loss" is a legal question which we review de novo. United States v. Mount, 966 F.2d 262, 265 (7th Cir. 1992). Higgins claims that the district court made two legal errors, either of which would require reversal. First, citing United States v. Mau, 45 F.3d 212, 216 (7th Cir. 1995), he argues that the amount of loss as a matter of law can only be the actual loss at the time of discovery, not the intended loss, because that is the rule that applies for check kiting schemes. Higgins concedes that his was not a simple check kiting scheme, but he urges that it was close enough that the same rule ought to be applied in his case. We rejected precisely the argument that Higgins advances in United States v. Kipta, 212 F.3d 1049 (7th Cir. 2000). Like Higgins, Kipta’s crime was writing checks on a single account that she inflated with bogus deposits. When she was caught, she had imposed $38,219.92 in actual losses on First Chicago Bank, but her inflated account balance was $171,355.46. Kipta argued that actual loss was the appropriate loss measure. We disagreed, holding that the district court properly sentenced Kipta for the loss she intended to inflict--the full $171,355.46. Id. at 1052. In Higgins’s case too, the district court properly looked to intended loss, in keeping with U.S.S.G. sec. 2F1.1, comment. (n.8). Higgins further argues that, even if intended loss was the appropriate standard, the district court did not properly determine the intended loss figure. We agree with this contention. Intended loss analysis, as the name suggests, turns upon how much loss the defendant actually intended to impose on the financial institution. It does not matter whether the loss materialized or even whether it was economically possible to impose such a loss, see United States v. Stockheimer, 157 F.3d 1082, 1090 (7th Cir. 1998) (affirming $80 million intended loss and limiting economic reality arguments to motions for downward departure), but the district court must find, by a preponderance of the evidence, that the defendant intended to impose on the financial institution the particular amount of loss for which he is to be sentenced. See United States v. Strozier, 981 F.2d 281, 284-85 (7th Cir. 1992) (affirming intended loss determination made after finding, based on significant circumstantial evidence, that defendant would have continued writing checks against account but for his arrest); United States v. Lauer, 148 F.3d 766, 767-68 (7th Cir. 1998) (same). Our review of the sentencing hearing transcript forces us to conclude that the district court never made a finding about how much loss Higgins actually intended to inflict on ONB. In explaining its decision to sentence Higgins on the basis of the full $420,000, the court stated only that Higgins’s motivation for depositing the check was to "obtain a deposit slip for that amount of money to make Kenny Kent feel that Mr. Higgins was a legitimate businessman or a man of means having almost a half a million dollars in a checking account." Then, instead of going on to make a finding of intended loss, the court said only "So I do find that the intended level was to be higher than the $69,990 figure. The higher amount was to establish his legitimacy and his substantial bank account for the purpose of obtaining the car." These findings are too vague to support a conclusion that Higgins intended to inflict loss in the full amount of the $420,000 check. There is no indication that the district court believed that Higgins intended to actually deprive ONB of the full $420,000 he purported to be depositing, as opposed to merely impressing the bank with his importance and then using some smaller sum as he did with the Lexus purchases. If anything, the district court’s statement leaves the impression that Higgins intended to impose $69,990 of loss on ONB and that the primary purpose of the $420,000 figure was simply to deceive Kenny Kent Lexus. Although a second remand is regrettable, we believe that it is unavoidable on this record. Whether the loss was $69,990 or as much as $420,000 makes a substantial difference for the sentence: the Guidelines require a 5- level upward adjustment for losses between $40,000 and $70,000, and a 9- level upward adjustment for losses between $350,000 and $500,000. See U.S.S.G. sec. 2F1.1(b)(1)(F), (J). (Indeed, even on his own account Higgins is only $10 away from a 6-level upward adjustment, but even this must be supported by evidence.) The remand is, we stress, a very limited one: it is not an invitation for Higgins once again to raise other issues. On remand, the district court must determine whether the government proved by a preponderance of the evidence that Higgins actually intended to impose a $420,000 loss on ONB. The original deposit of the Civitas check is some evi dence of this intent, as is Higgins’s use of the temporary ONB check. If, however, all the government’s evidence proves is that Higgins’s intent was to use only $69,990 of the $420,000, or some other amount between those two numbers, Higgins’s sentence must be computed accordingly. IV For these reasons, we Affirm Higgins’s conviction for bank fraud and Remand for resentencing in accordance with this opinion. 

*********************************************** The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. ***********************************************  YOUNG v. HARTFORD HOSPITAL—DISSENT DEVLIN, J., dissenting. In this lawsuit, the plaintiff, Wendy Young, seeks damages for injuries she allegedly received while undergoing a robotic hysterectomy at the defendant, Hartford Hospital. The plaintiff asserts that her complaint sounds only in ordinary negligence and, therefore, that the requirements to attach a good faith certificate and written opinion regarding medical negligence pursuant to General Statutes § 52-190a are inapplicable. The trial court disagreed and granted the defendant’s motion to dismiss. The majority reverses based on its view that, when read ‘‘holistically and rea- sonably,’’ the complaint, at least in part, alleges ordinary negligence. In my view, the plaintiff’s complaint alleging injury suffered during major surgery caused by a sophis- ticated piece of medical equipment alleges medical neg- ligence and only medical negligence. Accordingly, I respectfully dissent. The plaintiff’s complaint alleges the following rele- vant facts.1 On May 11, 2016, the defendant possessed a robotic surgical system used to assist in performing hysterectomies. The plaintiff, on that same date, had a robotic hysterectomy performed by Catherine C. Grazi- ani, a physician. In the days following the surgery, the plaintiff experienced pain and ‘‘a black and blue’’ on her left side. On June 10, 2016, at an office visit with Graziani, the plaintiff learned that a robotic camera fell on her left side. Graziani had told the defendant’s employees in charge of the machine, but the plaintiff was not told of the incident. The plaintiff’s complaint alleged seven specifications of negligence: ‘‘a. allowing defective robotic equipment to be used in assisting with a surgical procedure; ‘‘b. failing to inspect the robotic equipment prior to its use on the plaintiff; ‘‘c. failing to properly secure the camera so that it does not fall on patients; ‘‘d. failing to properly train its medical equipment personnel to recognize that the camera was not secure and could fall on patients; ‘‘e. operating the robot in such a manner to cause the camera to fall; ‘‘f. failing to notify the plaintiff that the camera fell on her; ‘‘g. failing to warn the plaintiff that the camera could fall on her.’’ The issues raised in the defendant’s motion to dismiss were (1) whether the plaintiff’s complaint is brought against a health care provider and (2) whether it must be supported by a certificate of good faith and written opinion from a similar health care provider that there appears to be evidence of medical negligence. See Gen- eral Statutes § 52-190a. It is undisputed that the com- plaint lacked such certificate and opinion. If the com- plaint had, in fact, been brought against a health care provider and alleged only medical negligence, this is a fatal defect. The trial court concluded that the plaintiff com- menced this action against the defendant in its capacity as a health care provider, and that the plaintiff’s allega- tions against the defendant arose out of the medical professional-patient relationship and were of a special- ized medical nature, and were related to her medical treatment and involved the exercise of medical judg- ment. Accordingly, the court determined that the plain- tiff’s failure to attach to her complaint a certificate of good faith and a written opinion by a similar health care provider in accordance with § 52-190a mandated the dismissal of her claims. The majority agrees, as do I, that the defendant is a health care provider under applicable Connecticut law; so the question comes down to whether the plaintiff’s claim is one of ordinary negligence, as she asserts, or medical negligence. As the majority correctly states, this question is resolved by application of the three part test set forth in Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001). Based on Trimel, the relevant considerations in determining whether a claim sounds in medical mal- practice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involves the exer- cise of medical judgment. Id., 357–58. As to the first prong of Trimel, the majority agrees that the defendant has been sued in its capacity as a health care provider. The majority further agrees that the alleged negligence arose out of the medical profes- sional-patient relationship. In the majority’s view, how- ever, it is ‘‘not clear’’ that the injury necessarily was caused by negligence of a specialized medical nature or that the alleged negligence involved the exercise of medical judgment. A review of the cases in this area, both in Connecticut and around the country, demonstrates that allegations like those in the present case involved alleged negli- gence of a specialized medical nature that is substan- tially related to medical treatment and necessarily involve the exercise of medical judgment. In Nichols v. Milford Pediatric Group, P.C., 141 Conn. App. 707, 64 A.3d 770 (2013), this court addressed a similar issue of whether negligence alleged during the drawing of a blood sample in the course of a physical exam satisfied the Trimel test and, thus, constituted a claim of medical negligence. While his blood was being collected, the plaintiff fell face first onto the floor of the examining room, sustaining an injury. Id., 708. This court stated: ‘‘A physical examination is care or treat- ment that requires compliance with established medical standards of care and, thus, necessarily is of a special- ized medical nature.’’ Id., 714. As to whether the alleged negligence related to medical diagnosis or treatment and involved the exercise of medical judgment, the plaintiff alleged that the defendant improperly trained and supervised the agent who collected the plaintiff’s blood. Id., 714–15. This court stated that ‘‘[a] physical examination is related to medical diagnosis and treat- ment of a patient; therefore, any alleged negligence in the conducting of such examination is substantially related to medical diagnosis or treatment. Further, whether the defendant acted unreasonably by allowing a medical assistant to collect blood samples unsuper- vised and in the manner utilized and whether it suffi- ciently trained its employee to ensure that any blood collection was completed in a safe manner . . . clearly involves the exercise of medical knowledge and judg- ment.’’ (Internal quotation marks omitted.) Id., 715. In Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009), the plaintiff sought damages for the ‘‘falsehoods and broken promises’’ with respect to whether the defendant had consulted with and, should have referred the plaintiff to, the high risk pregnancy group at Yale-New Haven Hospital. Id., 573– 75. In affirming the dismissal of the plaintiff’s complaint, this court noted that, ‘‘[a]lthough the plaintiff denomi- nated the claims in her complaint as sounding in tort and breach of contract, the factual allegations underly- ing the claims require proof of the defendant’s deviation from the applicable standard of care of a health care provider . . . . It is not the label that the plaintiff placed on each count of her complaint that is pivotal but the nature of the legal inquiry.’’ Id., 580. In Levett v. Etkind, 158 Conn. 567, 265 A.2d 70 (1969), the issue was whether the case should have been pre- sented to the jury under instructions for ordinary negli- gence or medical malpractice. The plaintiff, an eighty- one year old woman, fell while disrobing in a dressing room while a patient at the defendant physician’s office. Id., 569. Our Supreme Court held that, contrary to the plaintiff’s claims, ‘‘[t]he determination whether the [plaintiff] needed help in disrobing . . . called for a medical judgment on the part of the physician’’ and, thus, the case was properly categorized as medical mal- practice. Id., 573.  The situations where our courts have supported the plaintiff’s theory of ordinary negligence are clearly dis- tinguishable from the present case. See, e.g., Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn. App. 383, 386, 505 A.2d 741 (1986) (action based in ordinary negligence when patient receiving treatment at defen- dant’s outpatient facility was struck and killed by car as he crossed street to get lunch at defendant’s inpatient facility); see also Multari v. Yale-New Haven Hospital, Inc., 145 Conn. App. 253, 259, 75 A.3d 733 (2013) (Trimel test was not satisfied when grandmother, who was ordered to take disruptive child and leave hospital, tripped and fell while carrying child). Cases from other states have ruled that medical equipment failure amounts to medical malpractice. See, e.g., Corbo v. Garcia, 949 So. 2d 366, 370 (Fla. App. 2007) (The court found, in an action where the plaintiff’s arms were burned while receiving treatment from a physical therapy machine, that, ‘‘[t]he basis for [the plaintiff’s] claim is that the petitioners negligently administered a treatment modality. Therefore, her injury occurred during medical treatment, and in order to prove her claim, she must prove that the petitioners did not properly maintain their electrical stimulation equipment, which falls within the standard of care in treating a patient with that equipment. . . . The fact that the injury was caused by the use of the equipment during the rendering of medical treatment takes [the plaintiff’s] claim into the realm of medical negligence.’’); Goldman v. Halifax Medical Center, Inc., 662 So. 2d 367, 368, 370 (Fla. App. 1995) (medical malpractice notice requirements applicable to plaintiff’s claim of injury when mammogram equipment, improperly cali- brated, applied too much pressure, causing plaintiff’s silicone breast implants to rupture). In the present case, the defendant cites to Moll v. Intuitive Surgical, Inc., United States District Court, Docket No. 13-6086 (EEF) (E.D. La. April 1, 2014), to support its claim that the plaintiff’s complaint satisfies the Trimel test. The majority acknowledges Moll but ultimately finds it unpersuasive. To be sure, that case is not strictly binding on this court and the plaintiff’s complaint in Moll was far more detailed than the present case. That said, the reasoning in Moll and its application of the Louisiana Supreme Court’s six factor test for determining whether particular conduct is considered medical malpractice; see Coleman v. Deno, 813 So. 2d 303, 315–18 (La. 2002); is instructive. Moll concerned the identical robotic hysterectomy procedure involved in the present case and the alleged malfunction of the robotic equipment allegedly caused the plaintiff’s injury. In ruling that the claims were properly consid- ered medical malpractice, the District Court noted that (1) the defect in the device is properly considered treat- ment because, unlike a hospital bed or other objects the hospital owns, the device is used only in medical procedures, (2) expert testimony is likely necessary to test the surgeon’s decision as to whether and how to use the device, (3) the incident occurred during a surgical procedure, and (4) the injury would not have occurred if the plaintiff had not sought treatment. Moll v. Intuitive Surgical, Inc., supra, United States District Court, Docket No. 13-6086. The present case is not one in which a nonpatient is injured on hospital grounds under circumstances unre- lated to medical treatment. To the contrary, the plaintiff was allegedly injured during a surgical procedure. Look- ing beyond the plaintiff’s label and to the nature of the legal injury, the defendant’s alleged conduct fits squarely within the definition of medical negligence set forth in Trimel as well as the cases cited herein. All of the plaintiff’s allegations of negligence: allowing the use of the equipment in the surgery, inspection of the equipment prior to its use on the plaintiff, failing to secure the camera, failing to train medical equipment personnel, operating the robot, and failing to properly advise the plaintiff, relate to her medical treatment and involve the exercise of medical judgment. As such, these allegations should be supported by a certificate of good faith and written opinion as to medical negligence. I would affirm the trial court’s judgment of dismissal. 1 The majority aptly points out that the complaint alleges a ‘‘paucity of facts.’’ Indeed, the central allegation of the mechanism of injury—‘‘the plain- tiff was told that the robotic camera fell on the plaintiff’s left side’’—is not an allegation of fact but rather of evidence. Notwithstanding such deficienc- ies, the court’s role on a motion to dismiss is not to examine the sufficiency of the complaint but whether, as a matter of law, the plaintiff cannot state a cause of action that is properly before the court. See, e.g., Egri v. Foisie, 83 Conn. App. 243, 247–48, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). 

177 F.Supp.2d 1378 (2001) In re AUTOMOTIVE REFINISHING PAINT ANTITRUST LITIGATION No. 1426. Judicial Panel on Multidistrict Litigation. November 15, 2001. Before WM. TERRELL HODGES, Chairman, JOHN F. KEENAN, MOREY L. SEAR, BRUCE M. SELYA, JULIA SMITH GIBBONS, D. LOWELL JENSEN and J. FREDERICK MOTZ,[*] Judges of the Panel. TRANSFER ORDER HODGES, Chairman. This litigation currently consists of the 22 actions listed on the attached Schedule A and pending in three federal districts as follows: twelve actions in the Eastern District of Pennsylvania, nine actions in the Western District of Pennsylvania, and one action in the District of Delaware.[1] Before the Panel are three motions pursuant to 28 U.S.C. § 1407 for coordinated or consolidated pretrial proceedings. All responding parties in the actions before the Panel agree that centralization is appropriate, but disagree on choice of transferee district. Plaintiffs in five Eastern District of Pennsylvania actions move for coordinated or consolidated pretrial proceedings in that *1379 district. All domestic defendants also support 1407 centralization in the Eastern District of Pennsylvania. Plaintiffs in seven Western District of Pennsylvania actions and two Eastern District of Pennsylvania actions move for coordinated or consolidated pretrial proceedings in the Western District of Pennsylvania. Plaintiff in the District of Delaware action moves for coordinated or consolidated pretrial proceedings in that district. Interested party plaintiffs in five potential tag-along actions pending in the Western District of Kentucky suggest coordinated or consolidated pretrial proceedings in that district. Plaintiffs in three Eastern District of Pennsylvania actions and one Northern District of Ohio potential tag-along action support transfer to either of these two districts. Plaintiff in another Northern District of Ohio potential tag-along action also supports transfer to that district. On the basis of the papers filed and hearing session held, the Panel finds that the 22 actions in this litigation involve common questions of fact, and that centralization under Section 1407 in the Eastern District of Pennsylvania will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These actions share allegations concerning whether defendants participated in a combination or conspiracy to fix, raise, maintain, or stabilize the price of automotive refinishing paint products. Centralization under Section 1407 is thus necessary in order to eliminate duplicative discovery; prevent inconsistent pretrial rulings, especially with respect to class certification; and conserve the resources of the parties, their counsel and the judiciary. We are persuaded that the Eastern District of Pennsylvania is the appropriate transferee forum for this docket. We note that: i) a grand jury potentially related to this litigation has been convened in the Eastern District of Pennsylvania; ii) a number of the defendants have a nexus in the Northeastern United States, so pertinent documents and witnesses can be expected to be found in that vicinity; and iii) at least some plaintiffs and all domestic defendants support centralization in this district. In addition, twelve of the 22 actions before the Panel and at least five potential tag-along actions are already pending in the Eastern District of Pennsylvania before one judge. IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on the attached Schedule A and pending outside the Eastern District of Pennsylvania are transferred to the Eastern District of Pennsylvania and, with the consent of that court, assigned to the Honorable Richard Barclay Surrick for coordinated or consolidated pretrial proceedings with the actions listed on Schedule A and pending in that district. SCHEDULE A MDL-1426—In re Automotive Refinishing Paint Antitrust Litigation District of Delaware AARC Distributors Inc. v. E.I. DuPont de Nemours & Co., et al, C.A. No. 1:01-4489 Eastern District of Pennsylvania Car Color & Auto Body Supply Ltd. v. PPG Industries, Inc., et al., C.A. No. 2:01-2830 Golden Motors, Inc. v. PPG Industries, Inc., et al., C.A. No. 2:01-2906 Charles Lessard v. PPG Industries, Inc., et al., C.A. No. 2:01-2983 Randall Boltz v. PPG Industries, Inc., et al., C.A. No. 2:01-3020 *1380 Yuri Shneyder v. PPG Industries, Inc., et al., C.A. No. 2:01-3105 Sajon Investments, Inc. v. PPG Industries, Inc., et al., C.A. No. 2:01-3174 Howard J. Walters v. PPG Industries, Inc., et al., C.A. No. 2:01-3206 Mark Sharone v. Sherwin-Williams Co., et al., C.A. No. 2:01-3226 Nicastro Industries, Inc. v. Sherwin-Williams Co., et al., C.A. No. 2:01-3275 Crawford's Auto Center, Inc. v. E.I. DuPont de Nemours & Co., et al., C.A. No. 2:01-3437 Jacqueline Auto Body, Inc. v. PPG Industries, Inc., et al., C.A. No. 2:01-3470 Pasternacks Paint & Wallpaper Co., Inc. v. Sherwin-Williams Co., et al., C.A. No. 2:01-3650 Western District of Pennsylvania Peter Sahagian v. PPG Industries, Inc., et al., C.A. No. 2:01-1159 Automotive Body & Tire Center, Inc. v. DuPont Performance Coatings, Inc., et al., C.A. No. 2:01-1173 Grant Park Garage, LLC v. PPG Industries, Inc., et al., C.A. No. 2:01-1183 Sid Kaprelian, et al. v. PPG Industries, Inc., et al., C.A. No. 2:01-1189 Affordable Auto Body Carstar, Inc. v. PPG Industries, Inc., et al., C.A. No. 2:01-1219 John Sahagian v. PPG Industries, Inc., et al., C.A. No. 2:01-1230 Anthony Koey v. PPG Industries, Inc., et al., C.A. No. 2;01-1231 Stephen Wilson v. PPG Industries, Inc., et al., C.A. No. 2:01-1232 Precise Autobody, Inc. v. PPG Industries, et al., C.A. No. 2:01-1271 NOTES [*] Judge Motz took no part in the decision of this matter. [1] The parties have notified the Panel of 35 additional related actions pending as follows: seventeen in the Western District of Pennsylvania; five each in the Western District of Kentucky, District of New Jersey, and Eastern District of Pennsylvania; and three in the Northern District of Ohio. These actions and any other related actions will be treated as potential tag-along actions. See Rules 7.4 and 7.5, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001).

People v Ulerio (2017 NY Slip Op 03448) People v Ulerio 2017 NY Slip Op 03448 Decided on May 2, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 2, 2017 Renwick, J.P., Richter, Andrias, Gesmer, JJ. 270 5149/07 [*1]The People of the State of New York, Respondent, vWilly Ulerio, Defendant-Appellant. An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Robert Straus, J.H.O. at suppression hearing; Gregory Carro, J. at suppression decision; Daniel P. FitzGerald, J. at trial, motion to set aside verdict and sentencing), rendered November 9, 2012, Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, a decision and order of this Court having been entered on March 24, 2016, holding the appeal in abeyance (137 AD3d 629 [1st Dept 2016]), and upon the stipulation of the parties hereto dated April 12, 2017, It is unanimously ordered that the said appeal be and the same is hereby withdrawn in accordance with the terms of the aforesaid stipulation. ENTERED: MAY 2, 2017 CLERK

204 Va. 462 (1963) ELIZABETH PARKER BARTSCH v. SIGNE G. BARTSCH. Record No. 5611. Supreme Court of Virginia. September 11, 1963. C. Wynne Tolbert and Brainard H. Warner, III, for the appellant. Present, Eggleston, C.J. and Spratley, Buchanan, Snead, I'Anson and Carrico, Signe Bartsch was granted a decree of divorce a mensa et thoro from Paul Bartsch in the District of Columbia in 1933, receiving an award of alimony of $180 a month. He tried unsuccessfully in 1938 to have the decree enlarged into one for an absolute divorce. In 1939 he obtained a divorce in Reno and at once married appellant Elizabeth Bartsch. Signe Bartsch was personally served in the Nevada proceeding but made no appearance. Not until 1950 did she take any action to attack the Nevada decree, and that suit she dismissed voluntarily and continued to receive alimony payments. Upon Bartsch's death in 1960 she instituted the present suit to be declared his lawful widow on the ground the Nevada court lacked jurisdiction and its decree was a nullity. It was held that she was precluded from relief by her laches, the doctrine being applicable because of her unreasonable delay, the death of Bartsch who would have been a material witness, and the injury which would result to the second wife if relief should be granted. Appeal from a decree of the Circuit Court of Fairfax county. Hon. Albert V. Bryan, Jr., judge presiding. The opinion states the case. Whitford W. Cheston, for the appellee. SPRATLEY SPRATLEY, J., delivered the opinion of the court. Mrs. Signe G. Bartsch, [1] sometimes hereinafter called appellee, filed in the Circuit Court of Fairfax county, Virginia, on December 19, 1960, an application for a declaratory judgment against Elizabeth *463 Parker Bartsch, hereinafter called appellant. It was alleged that appellee was married on June 21, 1902, in the District of Columbia, to Paul Bartsch, sometimes hereinafter called Dr. Bartsch; that on April 4, 1933, she was granted a divorce a mensa et thoro from Bartsch on the grounds of cruelty in the U.S. District Court for the District of Columbia; that on May 17, 1938, the petition of Bartsch for "enlargement" of said decree into a decree for an absolute divorce was dismissed with prejudice; that on September 30, 1939, Bartsch obtained a decree for an absolute divorce from appellee in Reno, Nevada; that the Nevada court was without jurisdiction as Bartsch "was not a domiciliary of the State of Nevada at the time of that divorce proceeding, but was actually a resident and domiciliary of the District of Columbia;" that the sole purpose of Bartsch in going to Nevada was to obtain a divorce so that he could marry the appellant; that appellee was not served with process in said case in the State of Nevada, nor did she participate therein "in any fashion;" that on September 30, 1939, Bartsch and appellant "did go through a marriage ceremony" in Reno, Nevada, and that said ceremony was a nullity. It was further alleged that Bartsch immediately returned after the ceremony to the District of Columbia, where he resumed his position with the Federal government, from which he had taken a leave of absence; that Bartsch died April 24, 1960, at the age of 88; that his will was probated in Fairfax county, Virginia, his residence at the time of his death; that on June 3, 1960, appellant qualified as executrix of the estate of Bartsch; and that on December 19, 1960, appellee renounced the will of Bartsch and elected to take her statutory share of his estate as his widow. Appellee asked that the court declare her to be the lawful widow of Paul Bartsch; that the decree of divorce which he obtained in Nevada be declared null and void. She assigned no reason for her delay in challenging the validity of the Nevada divorce decree entered 21 years prior thereto. Appellant demurred to appellee's petition on the grounds that the proceeding in Nevada was regular in all respects and the decree entitled to full faith and credit in Virginia; and that appellee was guilty of laches and unreasonable delay in instituting this proceeding. The trial court being of opinion that evidence should be taken before a final determination of the question raised by the demurrer, overruled the demurrer and granted appellant leave to file an answer. Appellant filed an answer denying the pertinent allegations of the petition and asserting the grounds of her demurrer in defense. *464 The evidence was heard ore tenus, and at the conclusion thereof, a final decree was entered declaring Signe Bartsch, appellee, to be the lawful widow of Paul Bartsch, deceased. Included in the decree was a finding of facts, setting out the legal proceedings in the several suits between appellee, Signe Bartsch and Dr. Paul Bartsch, and the conclusion that the Nevada court was without jurisdiction to enter the decree of September 30, 1939, because the domicile and legal residence of Bartsch was, on the date of the decree and for several years prior thereto, in the District of Columbia; "that under the authority of Howe Howe, 179 Va. 111, 18 S.E.2d 294, the court doth find the doctrine of laches inapplicable to this suit;" and "that at the time of the death of Bartsch on April 24, 1960, he was lawfully married to Signe G. Bartsch." Appellant duly excepted to the finding of the court and to its conclusions of law. On petition of appellant, we granted this appeal. Paul Bartsch, a scientist, teacher and lecturer, holding a Doctor's degree, was employed by the United States National Museum, Washington, D.C. continuously from 1896 until his retirement in 1946. After his marriage to appellee in 1902, the couple lived together until some time in August, 1929, when they separated. Subsequently, appellee filed a suit for divorce in Washington, D.C., which was later dismissed upon a reconciliation being effected between the parties. They were unable, however, to keep their differences adjusted, and on March 9, 1931, appellee filed a second suit in the District of Columbia for a divorce a mensa et thoro on the grounds of cruelty. On April 4, 1933, she was awarded a decree of divorce a mensa et thoro. Bartsch was directed to pay to her the sum of $180.00 per month as permanent alimony. Thereafter, on April 29, 1936, Bartsch filed a suit against the appellee in the District of Columbia, praying for an absolute divorce upon the ground that the parties had voluntarily lived separate and apart more than five years. Appellee appeared, answered and moved the court to dismiss the proceeding, in that the matter in controversy between the parties had become res adjudicata by reason of the decree of April 4, 1933 between the parties. On May 17, 1938, after a hearing, the suit "was dismissed." On July 1, 1939, Bartsch went to Reno in Washoe county, Nevada. After staying there for "the statutory period," he filed a suit in the Second Judicial District Court of the State of Nevada, in and for the *465 County of Washoe, for an absolute divorce from appellee. A hearing was had on the 30th day of September, 1939, and a final decree was entered on that day, awarding Bartsch an absolute divorce. The decree further ordered Bartsch to pay $100.00 per month to Signe Bartsch, until her death or remarriage. Photostatic copies of a portion of the record in the Nevada proceeding were presented as exhibits in the present proceeding. The decree of September 30, 1939, recites that the cause came on to be heard "upon the complaint of the plaintiff, and the default of the defendant therein, after defendant's having been personally served with a certified copy of the complaint and summons issued herein." The court found, "as a matter of fact, that each and every and all the allegations of plaintiff's complaint are true," and concluded, "as a matter of law, that plaintiff is entitled to a judgment and decree for an absolute divorce," and it so adjudged. A copy of the summons in that case contained an affidavit by a deputy sheriff of Osceola county, Florida, that on August 29, 1939, he personally served the summons by delivering on that day "to Signe G. Bartsch, the said defendant, personally, in St. Cloud, County of Osceola, State of Florida, a copy of the annexed summons attached to a duly certified copy of the complaint," in the Nevada suit. Also there is a certified copy of the transcript of the testimony, in which Bartsch testified that he had come to Washoe county, Nevada, on July 1, 1939, with the intention of making that place his home; that it was still his home; that the allegations of his complaint were true; and that he and Mrs. Signe Bartsch had lived separate and apart for about ten consecutive years last past without cohabitation. Another witness, testifying on September 30, 1939, said that he knew Bartsch, and that the latter had lived in Washoe county continuously since July 1st of that year. No copy of the bill in the Nevada proceeding was presented in evidence, and there was no proof offered as to the period of residence required for jurisdiction of a divorce proceeding in Nevada. The evidence in the present case further showed that appellee, immediately after she was served with the process in the Nevada suit, wrote to her attorney, Austin Canfield, of Washington, D.C., now deceased, and her adult son, Henry Bartsch, advising them of the receipt of the process and asking for their advice. She was advised both by her attorney and her son not to take any action in the matter until Bartsch returned to the District of Columbia. Bartsch returned *466 to Washington in the early part of October, 1939; but she thereafter refrained from taking action because she was told to "leave it alone so long as Dr. Bartsch paid me $180.00 a month." She further explained that she took that course because she feared that if she challenged the Nevada decree, she would lose her monthly allowance and Bartsch would lose his good standing. After the entry of the Nevada decree, Bartsch made the $180.00 per month payments to appellee as required by the District of Columbia decree. On August 9, 1950, about 11 years after the Nevada decree, appellee herein filed in the District Court of the United States for the District of Columbia an application for a declaratory judgment. She set out that Bartsch and the appellant herein, Elizabeth Bartsch, had maliciously interfered with the domestic affairs of her son and his family; that he had threatened to discontinue his monthly payment of alimony to her; and that he had obtained the Nevada decree by fraud and misrepresentation. She prayed that the Nevada decree be adjudged void; that she be declared the lawful wife of Bartsch, subject to the District of Columbia decree of April 4, 1933; and that the property rights of the parties be determined. On May 3, 1952, Signe Bartsch, "in her own proper person," moved the court for leave to withdraw the above complaint, and for an order dismissing the suit without prejudice. The court granted her motion on that day. Appellant, Elizabeth Bartsch, testified that she first met Bartsch in 1926 or 1927, when she was a student taking a course taught by Bartsch at George Washington University; that she subsequently graduated as a doctor of medicine; that after her graduation, she went into medical practice in 1934 with Dr. Dunn, a sister of Dr. Bartsch; that she saw Bartsch from time to time during the years from 1934 to 1938, and became "seriously interested" in him about 1938; that she and Bartsch never had a formal engagement; that on September 29, 1939, she received a telegram from Bartsch asking her to join him in Reno immediately; that Bartsch had told her he was going to Reno, "because he wanted a home, something he had never had;" that she left Washington by airplane on the night of September 29th, and arrived in Reno the next morning, met Bartsch at the place where he was staying, a ranch house or motel; that Bartsch procured a marriage license and they were married about 4:00 p.m. on September 30th. She admitted that in conversations with Bartsch prior to his trip to Reno that she knew: "Divorce was in the picture; *467 surely;" that she could not testify as to his intentions in going to Reno; but that "he did not go out there with the intention of calling me up to marry him and come back. That was no arrangement between us at all." After their marriage, they left Reno the same afternoon by plane for San Francisco on a honeymoon, and about seven days later returned to Washington, D.C. She said she and Bartsch purchased a farm in Fairfax county, Virginia, in 1942; but did not move their residence to Virginia until 1949. Bartsch retired as a government employee in 1946. Appellant, a licensed physician, continued the practice of medicine. Henry Bartsch, the son of Paul and Signe G. Bartsch, testified that he participated in the preparation and filing of the suit of his mother for a declaratory judgment in 1950. He said he had twenty years experience in patent law and three years of law school training. He testified that he rendered certain services to the law firm which represented his mother, in exchange for their services to her; that except for the 1950 suit, which was withdrawn in 1952, she took no action with reference to challenging the Nevada decree from the time she received the summons in that suit until after Bartsch's death in 1960. There is some evidence which tends to show that the residence of Dr. Bartsch in Nevada was not bona fide, contrary to his own testimony in the Nevada proceeding. We shall not enter into a discussion whether it was sufficient to sustain the charge of fraud and misrepresentation, because we are of opinion that appellee is precluded by her laches from setting up that charge. The lengthy recital of the evidence has been made to show the circumstances and extent of appellee's delay in instituting this proceeding. "It is elementary that unreasonable delay in the assertion of rights without excuse and coupled with the death of material witnesses and the loss of material evidence which works to the disadvantage of adverse parties will warrant the denial of equitable relief. 2 Pomeroy's Equity Jurisprudence, 5th Ed., | 419, etc., p. 171, etc.; 7 Mich. Jur., Equity, | 26, etc., p. 47, etc.; O'Neill Cole, supra, and authorities there collected." Rowe Coal Corporation, 197 Va. 136, 144, 87 S.E.2d 763. Also see Hogg Shield, 114 Va. 403, 76 S.E. 934. The application of the doctrine of laches in equity cases is discussed at length in 19 Am. Jur., Equity, sections 489-515, inclusive, pages 338 et seq.; 30 C.J.S., Equity, sections 112-132, inclusive, pages 520 et seq., 7 Mich. Jur., || 28-34, pages 50 et seq. *468 "There is no absolute rule as to what constitutes laches or staleness of demand, and no one decision constitutes a precedent in the strict sense for another; each case is to be determined according to its own particular circumstances." 30 C.J.S., Equity, | 115, page 528. In Virginia, and elsewhere generally, the doctrine of laches and estoppel has been held applicable to the right to attack or impeach foreign divorces. Dry Rice, 147 Va. 331, 137 S.E. 473; Hodnett Hodnett, 163 Va. 644, 649, 177 S.E. 106; McNeir McNeir, 178 Va. 285, 291, 16 S.E.2d 632; Tarr Tarr, 184 Va. 443, 453, 35 S.E.2d 401; Swift Swift, 239 Iowa 62, 29 N.W.2d 535; Blair Blair, 96 Kan. 757, 153 P. 544; Pawley Pawley, (1950) Fla. , 46 So.2d 464, 28 A.L.R.2d 1358; Carpenter Carpenter, 93 F.Supp. 225; Jannino Jannino, 234 S.C. 352, 108 S.E.2d 572; Allsup Allsup, 199 Ark. 130, 132 S.W.2d 813; 27B C.J.S., Divorce, | 364, pages 849 et seq.; 17 Am. Jur., Divorce and Separation, | 536, pages 631 et seq.; 17A Am. Jur., Divorce and Separation, | 966, pages 149 et seq. Cf. Annotation 12 A.L.R.2d 162. On the other hand, the doctrine has been held not to apply in a number of cases because of the particular circumstances therein, notably for short delays, failure of notice, or some other reason. Among them appellee cites the following: Santangelo Santangelo, 137 Conn. 404, 78 A.2d 245; Croyle Croyle, 184 Md. 126, 40 A.2d 374; Lawler Lawler, 2 N.J. 527, 66 A.2d 855; Huggs Huggs, 195 F.2d 771; Howe Howe, 179 Va. 111, 18 S.E.2d 294. City of Los Angeles Morgan, 105 Cal.App.2d 726, 234 P.2d 319. A multitude of cases involving the recognition of a foreign divorce decree attacked on the ground of lack of domicile are discussed in annotation in 28 A.L.R.2d 1303, et seq. The facts before us in the present case are much like those in Dry Rice, supra, 147 Va., except that here the delay in making an attack on the foreign decree was much longer. They are quite different from those in Howe Howe, supra, 179 Va., the only similarity being the manner in which the divorce decrees were obtained. In the Howe case, supra, the first Mrs. Howe lived with her husband until the day he departed for Arkansas. Telling her he was "going on a little vacation" he kissed her good-bye, taking with him only such clothes as were necessary for that kind of a trip. Upon learning of the suit, Mrs. Howe was deeply distressed. She *469 went to Arkansas and in tears sought in vain to effect a reconciliation. Less than two years after Dr. Howe had obtained his decree, Mrs. Howe instituted suit to impeach it. We held that under those circumstances and others noted in the opinion, that laches should not be applied to her suit. At the same time, we made reference to Dry Rice, supra, 147 Va., and the holding therein. In the present proceeding, Dr. Bartsch did nothing to mislead the appellee. Their marriage was turbulent and unhappy. They separated in 1929, and she filed a suit for divorce, which was dismissed upon a temporary reconciliation between the parties. In 1931, she filed a second suit, in which she obtained a divorce a mensa et thoro. After living separate and apart for about ten years, Bartsch instituted the Nevada proceeding, and caused notice of it to be served upon her personally, together with a copy of his bill of complaint. She took no part in that suit, and upon his return to Washington in 1939, she refrained from taking any action attacking the Nevada decree. In the meantime, she acquiesced in the Nevada decree, and enjoyed the full fruits of alimony paid to her, all that she apparently desired. In voluntarily dismissing her suit instituted in 1950, for a judgment declaring the Nevada decree null and void, she signified her acquiescence in that decree. After the dismissal of that suit, she took no action to impeach the decree until Bartsch had died, eight years later. At that time their marital relations had ceased to exist for more than thirty years. It is plainly apparent that appellee had no interest in Bartsch or the decree he obtained in Nevada, except as to the alimony paid by him. Their marriage had been terminated by his death, and it is apparent that appellee asserted her relation as the widow of Bartsch, and the invalidity of his decree of divorce, solely for the purpose of obtaining a portion of his property. It may be noted here that it is not now contrary to the public policy of Virginia to obtain a decree of absolute divorce when husband and wife "have lived separate and apart without any cohabitation and without interruption for three years." Virginia Code, 1950, | 20-91(9) 1960 Rep. Vol., 1962 Supp., as amended. In Parks Parks, (1940) 73 App.D.C. 93, 116 F.2d 556, it was held that the 1935 amendment to the D.C. Code, Supp. V Title 14, | 63, permitted plaintiff, whose wife had obtained a limited divorce from him, to obtain an absolute divorce, if at the time his suit was filed "five consecutive years of 'voluntary separation' had elapsed," although the separation resulted from his fault. *470 Here appellee and Dr. Bartsch "lived separate and apart without any cohabitation and without interruption" for more than twenty years prior to the institution of this proceeding. We repeat the statement that each case is to be determined according to its own particular circumstances. We did not intend by the language of the Howe case, supra, to hold that laches was inapplicable to any attack upon the validity of a foreign decree. This is shown by our decisions in the subsequent cases hereinbefore cited. The refusal to apply laches in the Howe case, supra, was due to the particular circumstances noted in the opinion in the case. The first Mrs. Howe did everything she could to preserve her marriage, and promptly brought suit to invalidate the foreign divorce decree. Here, Signe Bartsch, appellee, did nothing to preserve her marriage. The marital relations between her and Bartsch had ceased thirty years before his death, and she had acquiesced in his remarriage for more than twenty years. Moreover, she presented no reasonable excuse or justification for her delay in seeking an annulment of the Nevada decree. In addition to the unreasonable delay and the conduct of appellee, the death of Bartsch, a material witness, and the injury and prejudice which will result to appellant in the event relief be granted the appellee require that the doctrine of laches be applied in this case. Having reached this conclusion, we deem it unnecessary to consider any of the remaining assignments of error of appellant. For the reasons stated, we are of opinion that the trial court erred (1) in failing to hold that whatever rights appellee had to assail the Nevada divorce had been lost by her laches; and (2) in declaring that appellee was the lawful widow of Dr. Bartsch, and appellant, Elizabeth Parker Bartsch, not his lawful widow. The decree complained of is reversed and set aside, and an order will be entered in this Court dismissing the petition of appellee for a declaratory judgment. Reversed and final decree. NOTES [1] Signe G. Bartsch died on April 15, 1963, while this appeal was pending. Virginia Code, 1950, | 8-148.

703 S.W.2d 19 (1985) George BOYD, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent. No. WD 36693. Missouri Court of Appeals, Western District. November 12, 1985. Motion for Rehearing and/or Transfer Denied December 24, 1985. Application to Transfer Denied February 18, 1986. *20 Peter J. Koppe, Kansas City, for appellant. Albert A. Riederer, Pros. Atty., and Robert Frager, Asst. Pros. Atty., Jackson County, Kansas City, for respondent. Before NUGENT, P.J., and SHANGLER and MANFORD, JJ. Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied December 24, 1985. MANFORD, Judge. This is a direct appeal from a judgment affirming the ruling of the Missouri Director of Revenue which ordered, alternatively, the posting of a bond or the suspension of appellant's motor vehicle registration and motor vehicle operator's license. The judgment is affirmed. Appellant presents a sole point which, in summary, charges that the trial court erred in affirming the decision of the Missouri Director of Revenue because neither the findings nor the decision of the Director was based upon sufficient evidence. This cause arises out of an automobile accident that occurred at the intersection of Paseo and Brush Creek Boulevards in Kansas City, Missouri. Appellant was driving out of a private drive on Paseo when the front of his vehicle struck the passenger side of a vehicle owned and driven by one Vincent Tortorice. Tortorice had automobile insurance coverage for his vehicle; appellant did not have coverage for his vehicle. On June 6, 1984, the Department of Revenue notified appellant that after review of the accident reports, it had determined that there was "a reasonable possibility of a money judgment being rendered against [him]." Appellant requested a hearing pursuant to § 303.290, RSMo (1978). The director issued its Findings of Fact and Conclusions of Law on August 6, 1984, stating it had again determined that there was "a reasonable likelihood that a judgment will be rendered against George Boyd." Appellant then filed a petition for review in the Circuit Court of Jackson County. The circuit court affirmed the decision of the Director without a hearing. The court found that: "While there is some evidence to the effect that the other driver in the accident ran a stop sign, the evidence is not sufficient to preclude a finding that Petitioner might still have a judgment rendered against him ..."[1] The record before the Director included the police report, accident reports from both drivers, and affidavits from appellant and a passenger of appellant's car. The *21 Director concluded that a "reasonable likelihood" exists that a judgment will be rendered against appellant. The police report showed damage to the right side of the other vehicle and the front of appellant's vehicle, which indicates that appellant struck the other vehicle. Appellant was pulling out of a private driveway. The other vehicle was on a public thoroughfare and had the right of way. The police report reflects that appellant told the officer at the scene that he did not see the other automobile before the accident. The reasonable conclusion is that appellant entered the street from a private driveway, without yielding to traffic, struck the side of Tortorice's vehicle, and that appellant is reasonably likely to have a judgment rendered against him in an action by Tortorice for damages. This evidence was before the circuit court. Appellant challenges the sufficiency of the evidence to support the decision of the Director. He argues the evidence adduced at the hearing showed that the other driver may have failed to observe a stop sign, and the Director's conclusion that there is a "reasonable likelihood" a judgment will be rendered against him is against the weight of the evidence. The Director of Revenue must "determine the amount of security which shall be sufficient in his judgment to satisfy any judgment for damages" against the uninsured party in any accident in this state in which an uninsured motorist is involved. Section 303.030.1 RSMo Supp. (1985). The Director must then require the uninsured party to deposit that amount as security within ten days, and, if he does not comply, suspend his license and registration. Section 303.030.2. The uninsured party may request a hearing to contest the Director's determination, under the provisions of Chapter 536, the Administrative Procedure Act. Randle v. Spradling, 556 S.W.2d 10, 11 (Mo. banc 1977). If the uninsured party receives an adverse ruling again after the hearing, she or he may appeal to the circuit court of the county in which they reside for de novo review. Section 303.290.2 RSMo (1978). This matter not only places before this court the disposition of this particular case, but as observed infra, construction of § 303.290.2, RSMo 1978, and particular sections of Chapter 536, RSMo 1978, is required. The judicial review of proceedings before the Missouri Director of Revenue are prescribed by § 303.290.2. This section reads as follows: Any decision, finding or order of the director, under the provisions of this chapter, shall be subject to review by appeal to the circuit court of the county of the residence of the licensee, at the instance of any party in interest, in the manner provided by chapter 536, RSMo, at any time within thirty days after notice is given the licensee of such decision, finding or order. Upon such appeal the cause shall be heard de novo and the circuit court may determine the reasonableness of the director's decision, finding or order, and in disposing of the issues before it may modify, affirm, or reverse the decision, finding or order in whole or in part. Appeals from the judgment of the circuit court may be taken as in civil cases. The prosecuting attorney of the county where such appeal is taken shall appear in behalf of the director, and prosecute or defend as the case may require. (emphasis added) It can be readily observed within the foregoing section that review by the circuit court may be invoked in the manner prescribed by Chapter 536. That provision seems simple enough if that was all that had to be considered. However, § 536.100, RSMo 1978 prescribes that aggrieved persons shall be entitled to judicial review pursuant to §§ 536.100-536.140, RSMo 1978. Within § 536.100, however, is the following limitation: "unless some other provision for judicial review is provided by statute; ...", and thus, § 303.290.2 again becomes applicable and controlling. Section 303.290.2 further contains the following provision: "Upon such appeal the cause shall be heard de novo and the circuit *22 court may determine the reasonableness of the director's decision, ..." (emphasis in original). Before proceeding further, it should be noted that perhaps the decision herein and the construction given the particular statutory provisions are in conflict with the ruling announced in Spradling, but this court perceives the Spradling ruling as not addressing the particular issue presented herein. In Spradling, the Missouri Supreme Court ruled that a proceeding prescribed by § 303.290 is a contested case and thus the provisions of Chapter 536 apply. Thus, the Spradling ruling did not reach or address issues, and/or questions which might arise subsequent to the proceedings before the Director. The parties in the instant case do not challenge the applicability of Chapter 536 as regards the part of these proceedings before the Director. As noted supra, in addition to appellant's challenge to the sufficiency of the evidence, the instant case requires this court to consider both § 303.290.2 and Chapter 536, how they interrelate when the matter is before the circuit court, and the scope of review by this court subsequent to the determination by the circuit court. Section 303.290.2 directs that review of the Director's decision shall be available pursuant to Chapter 536. However, once jurisdiction is lodged in the circuit court, § 303.290.2 prescribes that the circuit court shall hear the matter de novo. De novo has been defined as, "[A] new trial or retrial had in which the whole case is retried as if no trial whatever had been had in the first instance." Blacks Law Dictionary 1349 (5th ed. 1979) Proceedings of this nature then are subject to § 303.290.2 and not Chapter 536. Section 303.290.2 requires the circuit court to rehear the matter anew. In meeting its responsibility of harmonizing the statutory law of our state, this court construes Chapter 536 and § 303.290 as follows: Licensees and interested parties and the proceedings within § 303.290 are subject to the rule announced in Spradling. Judicial review of such proceedings may be initiated by a petition for review filed in the county of the licensee at the instance of any interested party. At such time a petition for review is filed, the circuit court shall hear and dispose of the matter de novo which shall require a notice to the parties and the parties shall be permitted to introduce additional evidence, if any, but not duplicative of the evidence before the Director, and the circuit court shall then enter its judgment upon the whole of such evidence. Throughout such proceedings, the Director shall bear the burden of proof, by a preponderance of the evidence, to establish the reasonableness of the Director's decision. Any subsequent appeal shall be from the judgment of the circuit court and not from the decision of the Director. In the instant case, there is nothing which suggests that any of the parties desired, or in any manner sought, the submission of any additional evidence to that previously submitted to the Director. The challenge to the evidence then is to that evidence submitted exclusively to the Director. Review by this court is then limited to the judgment of the circuit court which entered its judgment affirming the Director's decision exclusively upon the evidence submitted to the Director. The review by this court is then to determine if the circuit court judgment was supported by sufficient or substantial evidence. Contrary to appellant's contention, it must be concluded that the evidence was sufficient upon the whole of the record to support the circuit court's judgment that the decision of the Director was reasonable. It is further to be observed that all future proceedings arising from and within the purview of § 303.290 shall be conducted in conformity with this opinion. The judgment of the circuit court is in all respects affirmed. All concur. NOTES [1] Appellant's argument loses even greater significance in light of the ruling in Gustafson v. Benda, 661 S.W.2d 11 (Mo.1983).

IN THE TENTH COURT OF APPEALS No. 10-10-00310-CR RUSSELL WADE EASON, Appellant v. THE STATE OF TEXAS, Appellee From the 54th District Court McLennan County, Texas Trial Court No. 2010-3012 MEMORANDUM OPINION Russell Wade Eason attempts to appeal the trial court’s denial of his “Request Filing of this Motion Formal Bills of Exception and Motion for Formal Bills of Exception.” By letter dated September 7, 2010, the Clerk of this Court notified Eason that his appeal was subject to dismissal because it appeared that the order about which he complained was not an appealable order. Eason was warned that the Court would dismiss the appeal unless a response was filed showing grounds for continuing the appeal. Eason filed a response, but it fails to show grounds for continuing the appeal.  Accordingly, the appeal is dismissed. See TEX. R. APP. P. 42.3; 44.3. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Appeal dismissed Opinion delivered and filed October 6, 2010 Do not publish [CRPM] Eason v. State Page 2 

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539 F.2d 435 UNITED STATES of America, Plaintiff-Appellee,v.Douglas McDOWELL, Defendant-Appellant. No. 76-1361 Summary Calendar.* United States Court of Appeals,Fifth Circuit. Sept. 23, 1976. Craig R. Wilson, Edward A. Gross, West Palm Beach, Fla., for defendant-appellant. Robert W. Rust, U. S. Atty., Don R. Boswell, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of Florida. Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges. GEWIN, Circuit Judge: 1 Appellant, Douglas McDowell, was convicted after a jury trial of two counts of possession with intent to distribute cocaine, and two counts of distribution of cocaine, all in violation of 21 U.S.C. § 841(a)(1). He was sentenced to a five-year term on each count, to be served concurrently. On this appeal he argues that the trial court erred in the following rulings: (1) refusing to propound certain requested voir dire questions to the jury panel, (2) admitting certain evidence, (3) allowing the prosecutor to make allegedly highly prejudicial remarks during closing argument, and (4) sentencing appellant on all counts. After carefully reviewing the record and briefs, we find these contentions to be without merit and affirm. 2 The government's key witness was Clarence Lydes, a convicted felon. In March of 1975, Lydes was incarcerated in the Palm Beach County Jail on several state charges. After negotiations with the sheriff's office and Drug Enforcement Administration (DEA), it was agreed that Lydes would work for the DEA and make cases on known drug dealers. He was released on $350 bond. He was paid $25 per day in expense money, had the use of an apartment and a car, and received $2000 in relocation money. The state charges were dismissed about the same time that Lydes' employment was ended. Lydes was requested to make contact with appellant, whom he had known for about five years. 3 Lydes met with appellant at appellant's apartment in the first week of April, 1975. Lydes indicated he had a friend from Fort Pierce who wanted an ounce of "coke." The first transaction took place on April 6, 1975, when Lydes was accompanied by DEA Agent Wells to appellant's apartment. Wells was introduced as "Little Man", a narcotics dealer from Fort Pierce. Appellant gave Wells four spoons of cocaine (28 grams) in return for $1000. During the transaction appellant stated he had been "selling dope since '69" and had never been convicted. Another transaction occurred on April 11, when four more spoons of cocaine were purchased for $1000. During this transaction, appellant told Lydes to give "Little Man" his (appellant's) telephone number so "Little Man" could reach him when he got back from Fort Pierce. 4 Agent Wells corroborated Lydes' story and identified government exhibits 1 and 2 as the cocaine he had purchased from appellant. He also testified concerning the chain of custody of the exhibits. DEA Agent Campbell testified concerning his surveillance of the two purchases and the chain of custody of the exhibits. DEA Chemist Cooper testified that the substance in exhibits 1 and 2 was cocaine hydrochloride. Appellant did not take the stand. The jury found him guilty on all counts. 5 Appellant complains that the trial court erred in not asking the jury certain requested voir dire questions. The questions were: 6 8. Please state the name of any church, social club, fraternity or other organization to which you currently belong or were a member of within the past five (5) years. 7 16. Would the race or religion of any of the parties, witnesses or attorneys have any bearing on your decision in this case? 8 Rather, the court instructed the jury as follows: 9 THE COURT: This is a temple of justice; and this Court and all Courts in the nation, every person stands equal before the law, regardless of race, or color or religion, affiliation or nationality or sex or any other consideration.Would you accept my statement to that effect and do you agree with it, each of you? THE JURORS: (Indicate in affirmative.) 10 THE COURT: You will give the United States Government and this individual who is sitting here, represented by these two lawyers, capable lawyers, the same fair, impartial consideration in your verdict, without any preference one way or the other, in an effort to do justice in this case; will each of you do that? THE JURORS: (Indicate in affirmative.) 11 The trial court possesses extensive discretion in conducting the voir dire examination, but is subject to the essential demands of fairness. United States v. Fernandez-Piloto, 426 F.2d 892 (5th Cir. 1970). There must be an abuse of that discretion for reversal on appeal. United States v. Hill, 500 F.2d 733 (5th Cir. 1974), cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975). Appellant has shown no such abuse. Even in this court appellant has completely failed even to state the relevancy of his proposed inquiry number 8. The court's instruction and inquiry that are quoted above were more than adequate to meet appellant's extremely generalized and unexplicated fear that members of the jury venire might have been prejudiced against him because of his race.1 The district court did not err in refusing to give appellant's inquiry number 16. 12 Appellant also alleges that the trial court erred in admitting the cocaine (government exhibits 1 and 2) over objection. He contends that the government did not establish a proper chain of custody. He argues there was no testimony that the evidence was weighed or field-tested before it was turned over to the DEA chemist. He also alleges that the evidence was stored with evidence in other cases and could have become intermingled with it. 13 Our decision in United States v. Daughtry, 502 F.2d 1019 (5th Cir. 1974), is quite instructive with respect to the admission of narcotics exhibits. That case involved the admission of heroin. In it we first noted that the admission of evidence is within the trial court's broad discretion and that his decision concerning it will not be disturbed absent abuse of that discretion. We quoted with approval the criteria for admission of exhibits stated by the Eighth Circuit in United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973) (citations omitted): 14 (T)here must be a showing that the physical exhibit being offered is in substantially the same condition as when the crime was committed . . . Factors to be considered in making the determination of admissibility include the nature of the article, the circumstances surrounding its preservation and custody, and the likelihood of others tampering with it. If upon the consideration of such factors, the trial judge is satisfied that in reasonable probability the article has not been changed in any important respect, he may permit its introduction in evidence. 15 502 F.2d at 1022 n. 3. The chain of custody revealed by the testimony at trial clearly satisfied the Brown-Daughtry criteria. 16 Agent Wells testified that he placed the substance that appellant had sold him into bags and sealed them immediately upon his return to the DEA apartment. He also placed the DEA seal on the bags and his name and the date. The seals had not been disturbed or tampered with. Agent Campbell's testimony supported that of Wells. Wells transmitted the bags to Sergeant Liles, a member of the DEA Task Force. Sergeant Liles locked the bags in a footlocker. Subsequently, the bags were received by DEA Chemist Cooper and they were undisturbed. After his tests, he sealed the bottom of the bags, which he had opened to remove the samples. Cooper also testified that at the time of trial the bags did not appear to have been tampered with and appeared to be exactly the same as after he sealed them. 17 Appellant introduced no evidence that the exhibits had been tampered with and there is no evidence of foul play. The cocaine was in two independent, identifiable, sealed packets and there was no evidence that it was commingled with other narcotics. The trial court did not abuse its discretion in admitting the exhibits. 18 Appellant asserts that the prosecutor's comments during closing argument were extremely prejudicial and constitute reversible error. The comments objected to are as follows: 19 (Prosecutor:) . . . Ladies and gentlemen, I just want to conclude with this point: I think the issue in this case in my own mind boils down to this: It boils down to the credibility of the witnesses. There is no conflict in the testimony of any of the witnesses in this case, so in essence let me just put it to you this way: If you believe that Clarence Lydes, the informant, lied to you this morning, if you believe that Agent Wells lied to you this morning, if you believe that Mr. Campbell lied to you this morning, and if you believe that the chemist lied to you this morning, then it is your duty to return a verdict of not guilty. 20 (Defense Counsel) Your Honor, I object to that. There is nobody here said anybody was telling anything but the truth. Now, to infer that I inferred in my argument that anybody was lying, I would ask the Court to tell the jury to disregard that. 21 THE COURT: Counsel, I do not think that there is any inference at all that you made any such statement. Do you have an objection? 22 (Defense Counsel) Yes, sir, I object to the argument of counsel as not being responsive to my argument. 23 THE COURT: All right, sir. Objection overruled. 24 The test applied to determine whether a prosecutor has engaged in improper and prejudicial argument is whether substantial rights of the defendant may have been affected. See United States v. Bell, 535 F.2d 886 (5th Cir. 1976); United States v. Rhoden, 453 F.2d 598 (5th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 406 U.S. 947 (1972). The prosecutor's statement, "There is no conflict in the testimony of any of the witnesses in this case . . ." was not a comment on the appellant's failure to testify; it was merely a characterization of the consistency of the testimony of the government witnesses. The remainder of the argument is based on a reasonable inference. The trial court quite correctly informed the jury that the arguments of counsel were not evidence and fully instructed it concerning the reasonable doubt standard and the government's burden of proof, and on its role as the sole judge of credibility. No prejudicial error has been demonstrated with respect to the government's closing remarks. 25 Finally, appellant contends that the court erred in sentencing him on all four counts of the indictment. He argues that he could only be sentenced on the distribution counts, since they involved the same substance as the possession counts. Appellant was sentenced to concurrent five-year terms on all four counts; he was subject to a maximum sentence of fifteen years on each non-multiplicitous count, 21 U.S.C. § 841(b)(1)(A). Pursuant to the concurrent sentence doctrine, we need not and do not reach the issue of multiplicity. See United States v. Rojas, 502 F.2d 1042 (5th Cir. 1974); United States v. Workopich, 479 F.2d 1142, 1147 (5th Cir. 1973). 26 AFFIRMED. * Rule 18, 5th Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5th Cir. 1970, 431 F.2d 409, Part I 1 Race was simply not an issue in this narcotics prosecution. Appellant is a black man but so were three of the four government witnesses, including the key witness, informant Lydes

537 U.S. 1052 MOOREv.VANDEL ET AL. No. 02-6592. Supreme Court of United States. December 2, 2002. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 C. A. 5th Cir. Certiorari denied. Reported below: 48 Fed. Appx. 106.

887 F.Supp. 86 (1995) HARBOR SOFTWARE, INC., Plaintiff, v. APPLIED SYSTEMS, INC., Defendant. No. 92 Civ. 8097 (HB). United States District Court, S.D. New York. June 5, 1995. *87 Jeffrey C. Slade, Leventhal Slade & Krantz, New York City, for plaintiff. Jeffrey D. Ullman, Ullman, Furhman, Platt & Koy, Morristown, NJ, for defendant. OPINION AND ORDER BAER, District Judge:[1] Plaintiff Harbor Software has asserted six causes of action against defendant Applied Systems, all of which involve the alleged *88 copying or misappropriation of part, or all, of Harbor's computer software package "Sales Center Manager" ("SCM"). Defendant produced and put on the market a computer software package called "The Agency Manager" ("TAM") which, plaintiff alleges, contains all, or substantial parts, of SCM. Both software programs appear to perform the same functions, which enable insurance companies to automate their marketing activities. Plaintiff alleges copyright infringement, trade secret misappropriation, unfair competition, unjust enrichment, fraud, and Lanham Act violations. Defendant Applied Systems has moved for summary judgment on all causes of action except copyright infringement, relying primarily on its assertion that the facts adduced thus far indicate that plaintiff cannot sustain various elements of the subject claims. Def.'s Mem.L.Supp.Mot.Summ.J. at 1. In addition, defendant asserts that the Copyright Act, 17 U.S.C. § 301, preempts the trade secret misappropriation and unfair competition claims. Id. The Court heard oral argument on this motion on January 31, 1995. For the reasons set forth herein, defendant's motion for summary judgment is DENIED in its entirety. I. BACKGROUND Plaintiff Harbor Software is a Michigan corporation whose principal product, SCM, was created chiefly by its president Jeffrey Tollaksen. Defendant's representatives saw Tollaksen demonstrate SCM at two insurance industry conventions in late 1988, and asked Tollaksen about the possibility of integrating defendant's program, TAM, with SCM. Tollaksen visited defendant's headquarters in May 1989 to further demonstrate SCM. Before demonstrating the software, Tollaksen requested that Thomas Eustace, who was then managing Applied Systems, sign a confidentiality agreement. Eustace refused to sign the agreement, but, according to plaintiff, assured him that "the confidentiality agreement would be part of whatever business agreement was eventually worked out." Pl.'s Mem.L.Opp'n Mot.Summ.J. at 6. Shortly thereafter, plaintiff and defendant entered into an agreement whereby Tollaksen worked at defendant's headquarters to explore the possibility of integrating SCM with TAM. Defendant was then considering either integrating SCM with TAM, or marketing SCM as a stand-alone product. Def.'s Mem.L.Supp.Mot.Summ.J. at 7. Defendant agreed to pay Tollaksen $2,000 per month for 40 hours of work each month, plus $50 per hour for every additional hour spent working on the integration. Defendant paid Tollaksen $8,500 between February 1989 and May 1989 pursuant to this agreement. Id. at 9. While working on this project, Tollaksen loaded portions of the SCM source code onto defendant's computers. Pl.'s Mem.L.Opp'n Mot.Summ.J. at 9. Defendant disputes the period of time during which SCM was loaded onto its computers and denies that its employees could, as a result, access the source code without Tollaksen's knowledge. Def.'s Mem.L.Supp.Mot.Summ.J. at 9. Plaintiff asserts that Tollaksen had completed the integration of SCM and TAM by the end of his stay there in May 1989, Pl.'s Mem.L.Opp'n Mot.Summ.J. at 9; defendant, meanwhile, challenges this characterization of the work's state, Def.'s Mem.L.Supp.Mot. Summ.J. at 11. Defendant then ceased negotiations with plaintiff on possibly acquiring licensing rights for SCM. According to plaintiff, this was effected by a phone call from Eustace, who stated, "The business deal is not going to go through." When Tollaksen asked why, Eustace explained that a certain search performed by SCM had been completed "too slow[ly]." When Tollaksen stated that this could be corrected, Eustace allegedly responded that it did not matter. Pl.'s Mem.L.Opp'n Mot.Summ.J. at 10. In the spring of 1990, plaintiff discovered that defendant had released a new version of TAM. Plaintiff relates that the similarities of that software program to SCM prompted this litigation. II. THE COPYRIGHT ACT: PREEMPTION OF STATE LAW CLAIMS? Defendant argues in support of its motion for summary judgment that certain of *89 plaintiff's causes of action are preempted by the federal Copyright Act. Section 301(a) of the Copyright Act expressly preempts actions that would be tantamount to state law copyright claims. However, Section 301(b) of the Act specifically permits state law claims "that are not equivalent to any of the exclusive rights within the general scope of copyright" of the Act. Whether or not a state claim is preempted by the Copyright Act depends on whether there is some "extra element" involved in the state law cause of action that "changes the nature of the action so that it is qualitatively different from a copyright infringement claim." Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1535 (S.D.N.Y.1985); see also Computer Assocs. Int'l, v. Altai, Inc., 982 F.2d 693, 716 (2d Cir.1992); Harper & Row Publishers v. Nation Enters., 723 F.2d 195, 200-01 (2d Cir.1983), rev'd on other grounds, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). State law causes of action that have been held not to be preempted by the Copyright Act include breach of confidentiality, breach of trust, unfair competition, and trade secret misappropriation. Computer Assocs. Int'l, 982 F.2d at 717 (stating that many state law causes of action are not preempted (citing Balboa Ins. Co. v. Trans Global Equities, 218 Cal.App.3d 1327, 267 Cal.Rptr. 787, cert. denied, 498 U.S. 940, 111 S.Ct. 347, 112 L.Ed.2d 311 (1990))); see also Mayer, 601 F.Supp. at 1536 (1985) (breach of confidentiality and unjust enrichment); DC Comics, Inc. v. Filmation Assocs., 486 F.Supp. 1273 (S.D.N.Y.1980) (unfair competition). Accordingly, I reject defendant's assertion that plaintiff's trade secret misappropriation and unfair competition claims are preempted. III. SUMMARY JUDGMENT STANDARD Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment where the evidence shows 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." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "Summary judgment is properly regarded ... 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 Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987). An issue of credibility is insufficient to preclude the granting of a motion for summary judgment. Neither side can rely on conclusory allegations; instead, the disputed issues of fact must be supported by evidence that would allow a "rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Finally, factual disputes that are irrelevant to the disposition of the suit under governing law will not preclude entry of a summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. IV. ILLINOIS TRADE SECRETS ACT Both parties agree that the law to be applied for state claims in this action is that of Illinois. The relevant statute governing the trade secret misappropriation cause of action is the Illinois Trade Secrets Act. Ill. Rev.Stat. ch. 140, para. 352. An examination of the definition of "trade secret" in that Act reveals that plaintiff has met its burden of demonstrating that there exist triable issues of fact that preclude summary judgment. Three components of the definition of "trade secret" are at issue here: (1) whether sufficient steps were taken to lead a reasonable person to believe that the material sought to be protected was confidential; (2) whether the material claimed to be a trade secret has any economic value; and (3) whether the material qualifies as a "secret." The Illinois Trade Secrets Act expressly states that a "trade secret" encompasses: information, including but not limited to, technical or non-technical data, a formula, *90 pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure and use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Ill.Rev.Stat. ch. 140, para. 352(d). A. Was SCM Treated Confidentially? Defendant has stated that Tollaksen's program was not confidential, was not of economic value, and did not constitute a "trade secret." Defendant points out that Tollaksen demonstrated SCM to Eustace despite Eustace's refusal to sign the confidentiality agreement proffered by Tollaksen. Plaintiff, however, as indicated above, alleges that Eustace, upon declining to sign the agreement, stated that "the confidentiality agreement would be part of whatever business agreement was eventually worked out." Pl.'s Mem.L.Opp'n Mot.Summ.J. at 6. Thus, whether or not Tollaksen conditioned his work for defendant on the defendant maintaining confidentiality of SCM is a triable issue of fact. B. Does SCM Have Economic Value? Defendant has stated that "plaintiff has offered no evidence that SCM is a commercially viable software product." Def.'s Rep.Mem.L.Supp.Mot.Summ.J. at 19. The fundamental flaws in this claim are that (1) the Illinois Trade Secret Act specifically states that it is sufficient that the information sought to be given trade secret protection has potential economic value, and (2) defendant's own course of conduct in pursuing negotiations for a licensing agreement with Tollaksen to integrate SCM into its own TAM program or to market SCM as a standalone product belies its claim that SCM has no economic or potential economic value. Defendant paid plaintiff $8,500.00 for work on integrating SCM with TAM. It is reasonable to infer that defendant would not have done this had it not believed that there were at least potential economic value in SCM. Finally, defendant expresses its belief that plaintiff sold four or five copies of SCM at $700.00 per copy. Def.'s Mem.L.Supp.Mot. Summ.J. at 5 (citing Dep. of John DeVries, Mar. 2, 1994). The Court thus finds that there was at least potential economic value in plaintiff's SCM program such that defendant is not entitled to summary judgment on the trade secret misappropriation claim. C. Was SCM "Secret"? Defendant also argues that plaintiff has not specifically identified the trade secrets that defendant allegedly misappropriated. Plaintiff has put forth in an appendix attached to its complaint what it believes to be trade secrets that were disclosed to defendant during the course of plaintiff's work at defendant's headquarters. Pl.'s App. A, B. Whether or not these are trade secrets constitutes a material question of fact that precludes summary judgment. Defendant itself acknowledges that this is a question of fact by claiming, "[N]one of the items which plaintiff has designated as a `trade secret' is a trade secret in fact." Def.'s Mem.L.Supp. Mot.Summ.J. at 25 (second emphasis added). The Court lacks the technical expertise to evaluate on its own whether the information plaintiff claims is secret is, in fact, not generally known in the industry. An expert's testimony would likely be necessary, and defendant is therefore not entitled to judgment at this juncture. Further, case law supports the proposition that the overall design of a software program may be protectable as a trade secret, even if the individual components of that program are common knowledge in the programming industry. Computer Care v. Service Sys. Enters., 982 F.2d 1063, 1074 (7th Cir.1992) ("`A trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process design and operation of which in unique combination affords a competitive advantage and is a protectable trade secret.'" (quoting SmokEnders, Inc. v. Smoke No More, Inc., 184 U.S.P.Q. 309, 317, (BNA), Civ. No 73-1637, 1974 WL 20234 (S.D.Fla. Oct. 21, *91 1974))). As explained by plaintiff, finding otherwise would, by analogy, mean that a novel written in English cannot be protected unless the novelist has invented new words or rules of grammar.... [A]ny computer programmer must work with the tools that he [or she] is given, which are determined principally by the computer language in which he [or she] is working (not unlike the grammatical and linguistic restrictions of any language). It is what the programmer does within those constraints that creates protectable intellectual property.... [I]t is the design of the program that is the most important, not the particular code that reflects that design. Pl.'s Mem.L.Opp'n Mot.Summ.J. at 20 (citation omitted). The determination as to whether or not the design of a software program can be considered a trade secret depends on several factors, including whether the information "can be readily duplicated without involving considerable time, effort or expense." Hamer Holding Group, Inc. v. Elmore, 202 Ill. App.3d 994, 148 Ill.Dec. 310, 321, 560 N.E.2d 907, 918 (1990); Service Ctrs. of Chicago, Inc. v. Minogue, 180 Ill.App.3d 447, 129 Ill.Dec. 367, 370-71, 535 N.E.2d 1132, 1135-36 (1989). If the answer to that inquiry is "no," then the information can be classified as a protectable secret. Id. Plaintiff has cast doubt on defendant's argument that SCM in itself was not a secret by explaining that it took six years to develop. Here, there is a dispute as to whether or not SCM's component parts, the design of the program itself, or both constitute protectable trade secrets within the meaning of the Illinois Trade Secret Act. V. REMAINING CLAIMS A. Fraud and Unfair Competition Plaintiff's causes of action for unfair competition and fraud are similarly precluded from summary judgement. The record supports plaintiff's claims. For example, defendant states that before it had any contact with Tollaksen, defendant had already come to the conclusion that it was probably not feasible to integrate any third party software program into its own TAM program. Def.'s Mem.L.Supp.Mot.Summ.J. at 6. Drawing reasonable inferences in favor of plaintiff, the non-moving party, it can be inferred that defendant never intended to bring plaintiff to its headquarters for the purpose of compensating him for its ultimate planned use of SCM, either in conjunction with TAM or as a stand-alone product. Although defendant states that Eustace, who knew nothing about computer programming, decided to put the conclusion of his own programming staff aside and engage Tollaksen for the purpose of integrating the programs anyway, this does not seem credible. At best, it raises a question of fact as to whether defendant engaged plaintiff in bad faith, breaching a relationship of trust. While defendant also states that it was considering marketing SCM as a "stand-alone" product, Def.'s Mem.L.Supp.Mot.Summ.J. at 7, defendant contradicts itself by later stating that the SCM program was too slow and that it doubted SCM's economic value. Finally, to refute allegations that it copied plaintiff's SCM program, defendant states that it merely wanted to adopt some of SCM's features. In the face of such contradictory statements, it is entirely reasonable to infer that defendant brought plaintiff to its headquarters under false pretenses, breaching a duty of trust and confidence. This possibility is further borne out by the fact that, after spending $8,500.00 for plaintiff to work on the integration of the two programs, defendant abruptly broke off negotiations with plaintiff because one of the searches on SCM was executed too slowly, and refused to allow plaintiff to fix this problem. This raises a triable issue of fact as to why defendant sought plaintiff's help in integrating the two programs but suddenly halted negotiations with plaintiff. Because of such questions as to allegations of breach of trust, plaintiff's claims of unfair competition and fraud are not amenable to summary judgment at this time. B. Lanham Act Violation Defendant has included the Lanham Act, 15 U.S.C. § 1125(a), cause of action in its sweeping motion for summary judgment, yet *92 does not put forth evidence as to why it is entitled to judgment on this cause of action. The Court therefore denies summary judgment with respect to this cause of action as well. C. Unjust Enrichment As to plaintiff's claim of unjust enrichment, to the extent that it depends on the disposition of the substantive claim of trade secret misappropriation, it too is precluded from summary judgment. VI. CONCLUSION For the above reasons, defendant's motion for summary judgment is hereby DENIED in its entirety. SO ORDERED. NOTES [1] Carole Gottesman, a second-year student at New York Law School, assisted in the research and preparation of this opinion.

900 S.W.2d 316 (1995) Bruce WEINER, M.D., Petitioner, v. Emmanuel WASSON, Respondent. No. 94-0541. Supreme Court of Texas. Argued January 5, 1995. Decided June 8, 1995. Rehearing Overruled July 21, 1995. *317 Sam A. Houston, Houston, for petitioner. David W. Holman, Richard P. Hogan, Jr., Kevin H. DuBose, Richard W. Ewing, W. James Kronzer, Jr., Houston, for respondent. CORNYN, Justice, delivered the opinion of the Court, joined by GONZALEZ, HIGHTOWER, GAMMAGE, ENOCH and SPECTOR, Justices. OWEN, Justice, joined by PHILLIPS, Chief Justice, and HECHT, Justice, dissenting. We granted the application for writ of error in this case to decide whether the statute of limitations contained in section 10.01 of the Medical Liability and Insurance Improvement Act (Medical Liability Act)[1] can be constitutionally applied to the malpractice claim of a minor under the open courts provision of the Texas Constitution. The court of appeals, relying on our decision in Sax v. Votteler, 648 S.W.2d 661 (Tex.1983), held that section 10.01 of the Medical Liability Act is unconstitutional as applied to minors, who are under legal disability from bringing suit on their own behalf. 871 S.W.2d 542, 543. We affirm the judgment of the court of appeals, and remand this cause to the trial court for further proceedings consistent with this opinion. In May 1988, Dr. Bruce Weiner performed surgery on Emmanuel Wasson, who was then fifteen years old. The surgery required insertion of surgical pins into Wasson's right femur. On his last visit in June 1988, Wasson complained to Weiner of constant pain in his hip and of his need for crutches. In August 1988, Wasson saw another physician, who took x-rays of his hip. The x-rays showed that one of the surgical pins was protruding into Wasson's right hip joint. Wasson later underwent two additional surgeries, but they did not relieve his constant pain. Wasson turned eighteen on December 16, 1990, and a few months later underwent surgery for the total replacement of his right hip. On August 25, 1992, Wasson filed suit against Weiner, alleging that Weiner's negligence caused the painful destruction of his right hip joint and necessitated the hip replacement surgery. Weiner moved for summary judgment on two grounds. Weiner first urged that section 10.01 of the Medical Liability Act, which establishes a two-year statute of limitations for health care liability claims, barred Wasson's claim. Weiner also argued that even if the limitations period was tolled during Wasson's minority, Wasson's claim was nevertheless barred because Wasson failed to file suit within a "reasonable time" after attaining majority. The trial court granted Weiner's motion for summary judgment without specifying the grounds. The court of appeals reversed the trial court's judgment and remanded the case for further proceedings, holding that our opinion in Sax compels the conclusion that section 10.01 of the Medical Liability Act is unconstitutional as applied to minors.[2] I We begin our inquiry by reviewing the history of the medical malpractice statute of limitations in Texas. In 1975, as part of the Professional Liability Insurance for Physicians, Podiatrists, and Hospitals Act, the Legislature enacted article 5.82, section 4, of the Texas Insurance Code, which purported to restrict the period available for minors to bring medical malpractice actions. See Sax, 648 S.W.2d at 663. Section 4 of article 5.82 provided: Notwithstanding any other law, no claim against a [health care provider] ... may be commenced unless the action is filed within two years of the breach or the tort complained of or from the date the medical treatment that is the subject of the claim or the hospitalization for which the claim is made is completed, except that minors under the age of six years shall have until their eighth birthday in which to file, or *318 have filed on their behalf, such claim. Except as herein provided, this section applies to all persons regardless of minority or other legal disability. Tex.Ins.Code art. 5.82, § 4 (emphasis added) (hereinafter, article 5.82). When article 5.82 was repealed on August 29, 1977, the Legislature replaced it with section 10.01 of the Medical Liability Act, which provides: Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (emphasis added) (hereinafter, section 10.01). As we have observed before, other than specifying different ages by which minors must bring claims, section 10.01 and article 5.82 are substantially the same. See Sax, 648 S.W.2d at 663 n. 1; Nelson v. Krusen, 678 S.W.2d 918, 920 n. 1 (Tex.1984). In 1983, this Court unanimously held that article 5.82 was unconstitutional as applied to minors under the open courts provision of article I, section 13 of the Texas Constitution.[3]Sax, 648 S.W.2d at 665-667. We held that the open courts provision guarantees that "the right to bring a well-established common law cause of action cannot be effectively abrogated by the legislature absent a showing that the legislative basis for the statute outweighs the denial of the constitutionally-guaranteed right of redress." Sax, 648 S.W.2d at 665-666. Thus, we first considered whether article 5.82 "effectively abrogated" a child's right to bring a medical malpractice cause of action. Under article 5.82, the limitations period was tolled until a child reached age six, and upon reaching age six, a child, like an adult, was required to bring suit within two years. We observed, however, that a child lacks legal capacity to bring suit during minority unless the minor's legal disability has been removed. Although parents, guardians, or next friends may as adults be legally capable of bringing suit on a child's behalf during minority, we held that the possibility that an adult might act on the child's behalf did not vindicate the total abrogation of the child's cause of action. Sax, 648 S.W.2d at 667. We then considered whether the legislative purpose of article 5.82 outweighed the deprivation of a child's rights under the open courts provision. Although the Legislature enacted article 5.82 for the legitimate purpose of restraining the escalating cost of liability insurance for health care providers, we concluded that the means used to achieve this purpose were not "reasonable when they [were] weighed against the effective abrogation of a child's right to redress." Sax, 648 S.W.2d at 667. We accordingly held that, as applied to minors, article 5.82 violated article I, section 13 of the Texas Constitution. II Applying the principles articulated in Sax to this case, the court of appeals held that section 10.01, like its predecessor article 5.82, is unconstitutional as applied to minors because it purports to cut off Wasson's cause of action before he reaches majority, an age at which he may lawfully sue on his own behalf. 871 S.W.2d at 543. We agree. As previously noted, the only significant difference between article 5.82 and section 10.01 is that section 10.01 extends the tolling period from age six to age twelve. This one change in section 10.01 does not cure the constitutional infirmity that we identified in article 5.82 in Sax. Whether a statute compels a child to bring suit by age eight or by age fourteen is inconsequential because in either instance a minor child is legally disabled from pursuing a suit on his own. We do not doubt the Legislature's power to remove a *319 minor's legal disabilities and thus lower below eighteen the age at which a person may sue on his or her own behalf, but the Court unanimously agrees that the Legislature did not do so in section 10.01. 900 S.W.2d 326. Consistent with Sax, therefore, we hold that section 10.01 is unconstitutional when applied to a minor because it violates article I, section 13 of the Texas Constitution. Weiner contends that Sax does not control this case, pointing to the following excerpt from the Court's opinion in an attempt to distinguish it: If the parents, guardians, or next friends of the child negligently fail to take action in the child's behalf within the time provided by article 5.82, the child is precluded from asserting his cause of action under that statute. Furthermore, the child is precluded from suing his parents on account of their negligence, due to the doctrine of parent-child immunity. Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971). Sax, 648 S.W.2d at 667. Weiner maintains that Felderhoff v. Felderhoff is no longer the law in Texas, and that this Court's subsequent decision in Jilani v. Jilani, 767 S.W.2d 671 (Tex.1988), expanded the exceptions to the parent-child immunity doctrine upon which Felderhoff was based. Under Jilani, Weiner argues that a child now has the right to sue a parent who negligently fails to bring suit on the child's behalf within the prescribed limitations period. Therefore, the argument goes, a minor child whose parent fails to assert a medical malpractice claim within the limitations period provided by section 10.01 may sue the parent for negligence. This, it is contended, provides the adequate substitute remedy we found lacking in Sax. We disagree. Jilani did not change the law governing parent-child immunity articulated in Felderhoff. To the contrary, the Jilani court applied the Felderhoff test.[4] The Court's opinion expressly states, "[w]e continue to adhere to the principles and policy expounded in Felderhoff." Jilani, 767 S.W.2d at 672. Furthermore, Jilani was expressly limited to automobile negligence cases. Id. at 673. Because Felderhoff remains Texas law, we reject Weiner's argument that Sax does not control this case. Additionally, arguing that Wasson had a parent who was capable of bringing suit within the two-year limitations period. Weiner urges us to either overrule Sax, or limit the holding to its facts. We decline to do so. In Sax, a unanimous Court explicitly considered and rejected the argument that the ability of child's parent to bring suit on behalf of the child was a reasonable substitute —the same argument made by Weiner in this case. See Sax, 648 S.W.2d at 667. Furthermore, standing for the premise that the Legislature has no power to make a remedy contingent upon an impossible condition, Sax has been frequently cited as authority by this Court, the courts of appeals, and even by the high courts of other states. E.g., Whitlow v. Board of Educ., 190 W.Va. 223, 438 S.E.2d 15, 22 (1993); Mominee v. Scherbarth, 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717, 721 (1986); Strahler v. St. Luke's Hosp., 706 S.W.2d 7, 10-11 (Mo.1986); Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 692 P.2d 280, 286 (1984). Indeed, Sax has been the cornerstone of many of our subsequent decisions. E.g., Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.1985) (holding that section 10.01 could not cut off a cause of action before the plaintiff knew of the wrong's existence); Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984) (holding that article 5.82 could not cut off a cause of action before the plaintiff knew of the wrong's existence); see also Tinkle v. Henderson, 730 S.W.2d 163, 167 (Tex.App.— Tyler 1987, writ ref'd) (holding that article 5.82 could not cut off the claim of a mental incompetent). In short, Weiner presents no arguments that were not considered in Sax, nor does he demonstrate that Sax was wrongly decided. Of course, we have, on occasion and *320 for compelling reasons, overruled our earlier decisions, but undeniably, Sax has become firmly ensconced in Texas jurisprudence. Generally, we adhere to our precedents for reasons of efficiency, fairness, and legitimacy. First, if we did not follow our own decisions, no issue could ever be considered resolved. The potential volume of speculative relitigation under such circumstances alone ought to persuade us that stare decisis is a sound policy. Secondly, we should give due consideration to the settled expectations of litigants like Emmanuel Wasson, who have justifiably relied on the principles articulated in Sax. See Quill Corp. v. North Dakota, 504 U.S. 298, 321, 112 S.Ct. 1904, 1916, 119 L.Ed.2d 91 (1992) (J. Scalia, concurring) ("[R]eliance on a square, unabandoned holding of the Supreme Court is always justifiable reliance...."). Finally, under our form of government, the legitimacy of the judiciary rests in large part upon a stable and predictable decisionmaking process that differs dramatically from that properly employed by the political branches of government. See Vasquez v. Hillery, 474 U.S. 254, 265-66, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986) ("[Stare decisis] permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact."). Accordingly, we decline to overrule Sax or somehow limit the holding of that case to its facts. Although the dissenting justices agree with Weiner that Sax can be limited to its facts, we are unpersuaded. Based on the same principles we relied upon in Sax, just two years ago this Court held that even the commencement of a lawsuit by a mental incompetent and his wife did not affect the tolling of limitations during the period of the mental incompetent's legal disability. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 756 (Tex.1993). In arriving at this holding, we relied upon a series of cases from this and other jurisdictions that treat tolling of limitations for minors and mental incompetents identically. We reasoned: Access to the courts does not alone provide a legally incapacitated person a viable opportunity to protect his legal rights. The disability of a person of unsound mind is not only the lack of access to the courts, but also the inability to participate in, control, or even understand the progression and disposition of their lawsuit.... [T]he purpose and scope of the tolling provision as applied to minors and persons of unsound mind, extends beyond merely ensuring their access to the courts. Id. at 755 (citations omitted) (emphasis added). Thus, consistent application of our legal principles dictates that the failure of a parent to bring suit on behalf of a minor, a person under legal disability, does not affect the tolling of limitations. See Ruiz at 756 ("[I]f... [the guardian ad litem,] having instituted an action within the statutory period, discontinues it, the rights of the infant are not prejudiced thereby, and he may still take advantage of his disability, the action not being barred until the lapse of the statutory period after he comes of age.") (quoting M.C. Dransfield, Annotation, Appointment of Guardian for Incompetent or for Infant as Affecting Running of Statute of Limitations Against Ward, 86 A.L.R.2d 965, 976 (1962)). Weiner notes that this Court has previously decided the constitutionality of section 10.01 on an "as applied" or case-by-case basis, see Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984) (holding that section 10.01 was unconstitutional as applied to plaintiff because plaintiff had not discovered the cause of action within the two-year limitations period), and argues that we should do so here. We are of a contrary view. Weiner's argument leads to the unworkable standard contended for by the dissent, which would inquire whether the minor's parent was "incompetent" or had a "conflict of interest" that prevented the parent from acting in the minor's best interests. We fail to see any benefit in requiring a minor to show that his or her parent was incompetent or failed to act in the minor's best interests by not pursuing a medical malpractice claim, especially when the very failure of the parent to do so leaves the minor without any legal recourse. We accordingly decline the invitation to limit Sax to its facts. *321 III Having determined that section 10.01 is unconstitutional as applied to minors, we must now determine the limitations period that applies to a minor's medical malpractice claims. Wasson argues that he is entitled to pursue his lawsuit within two years after attaining majority under sections 16.001 and 16.003 of the Texas Civil Practice and Remedies Code. Weiner, on the other hand, argues that a minor has only a "reasonable time" after attaining majority in which to file suit, relying in part on this Court's decision in Nelson v. Krusen, 678 S.W.2d at 923. Because Wasson did not bring suit until eighteen months after he attained age eighteen, Weiner argues that Wasson failed, as a matter of law, to bring suit within a reasonable time. The reasonable-time rule is a court-made standard, which has heretofore been applied only in a limited number of cases involving adult plaintiffs who, because of the nature of their claim, did not have a reasonable opportunity to discover their injuries and bring suit within a prescribed limitations period. See Nelson v. Krusen, 678 S.W.2d at 921-22. The reasonable-time rule, in effect, allows certain adult plaintiffs two years plus a reasonable time to bring suit. Despite the fact that we have never applied the reasonable-time rule to cases other than those involving claims that are by their nature exceedingly difficult or impossible to discover, Weiner urges us to hold that minors have only a reasonable time after attaining age eighteen to bring suit. We decline to do so. Rather than fashioning a rule of our own making and applying it to minor plaintiffs, we think it is more appropriate to look to the general limitations provisions enacted by the Legislature. Sections 16.001 and 16.003 of the Texas Civil Practice and Remedies Code together provide a general statute of limitations for minors' personal injury claims.[5] Section 16.003 establishes a two-year limitations period,[6] but section 16.001 tolls this period until the minor reaches age eighteen.[7] Taken together, these sections require a minor to file a claim before reaching age twenty for personal injuries sustained during the period of minority. Because section 10.01 of the Medical Liability Act is unconstitutional as it applies to minors, we conclude that the limitations period provided by the general tolling and limitations provisions of Texas Civil Practice and Remedies Code sections 16.001 and 16.003 apply to Wasson's claim.[8] We therefore hold that Wasson had two years after attaining age eighteen to bring suit for the acts of medical malpractice allegedly committed during his minority. We affirm the judgment of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion. OWEN, J., joined by PHILLIPS, C.J., and HECHT, J., dissents. OWEN, Justice, joined by PHILLIPS, Chief Justice, and HECHT, Justice, dissenting. I respectfully dissent. I would hold that as applied to the facts of this case, section 10.01 of the Medical Liability and Insurance Improvement Act does not violate the open *322 courts provision of the Texas Constitution. Requiring a medical malpractice suit to be brought on behalf of a minor within the time set forth in article 4590i, section 10.01, is not unconstitutional where the minor is at least twelve years of age, his or her parent knew of the injury and potential claim within the limitations period, and the parent or legal guardian was competent and had no conflict of interest that would preclude him or her from acting in the best interest of the child. My principal concern is that the Court has taken such an expansive view of the scope of the open courts provision that no statute of limitations aimed at limiting the claims of minors can pass constitutional muster. The Court has tied the hands of the Legislature far beyond what was ever envisioned by the drafters of our Texas Constitution. It does so based on what I believe is an incorrect application of Sax v. Votteler, 648 S.W.2d 661 (Tex.1983). The Legislature had the Sax decision before it in 1993 when it renewed and extended section 10.01 of article 4590i until the year 2009. See Medical Liability and Insurance Improvement Act, 73rd Leg., R.S., ch. 625, § 3, 1993 Tex.Gen.Laws 2347, 2347. When the Legislature enacted the changes to the statute held unconstitutional in Sax, it articulated strong policy considerations underpinning those changes. We should not presume, because of the result in Sax, that the newer statute is unconstitutional. Rather, we should apply the principles articulated in Sax and examine the newer statute and the rationale supporting its enactment, as applied to the facts of this case. Under the facts of this case, section 10.01 is constitutional. I would reverse the judgment of the court of appeals and remand the case to the trial court for any further development of facts in light of this holding. I At the time Weiner performed surgery on Emmanuel Wasson in May of 1988, Wasson was fifteen years old. Weiner last treated Wasson in June of 1988. In that same year, it is undisputed that Wasson was aware not only that the results of this treatment were unsatisfactory to him, but that he had a claim against Weiner. By August of 1988, Wasson was aware of each and every injury for which he now seeks recovery. Wasson and his mother knew that he would have to undergo total hip replacement and believed this was a direct result of negligent medical treatment by Weiner. In fact, Wasson's mother filed a grievance against Weiner with the Medical Grievance Committee in 1988. Prior to May of 1990, within the two-year limitation period prescribed by section 10.01, Wasson's mother retained an attorney to represent her son. Yet suit was not filed until August of 1992, more than four years after Weiner last saw Wasson. No explanation has been provided for this delay. Weiner invoked the statute of limitations applicable to claims for medical malpractice, section 10.01 of article 4590i. II The Court's basis for striking down the statute before us is the open courts provision of the Texas Constitution. TEX. CONST. art. I, § 13. Over the years our Court gradually has expanded the reach of this provision. A detailed history of the origins of the open courts provision and of our earliest decisions construing it can be found in LeCroy v. Hanlon, 713 S.W.2d 335, 338-41 (Tex.1986). The history available to us indicates that the open courts provision was not controversial when adopted as part of our constitutions. It dates back to the Magna Carta. Id. at 339. Significantly, in the early decisions of our Court, the open courts provision was construed to ensure physical access to the courts or to preclude unreasonable bond requirements. Dillingham v. Putnam, 109 Tex. 1, 14 S.W. 303, 304-05 (1890); Runge & Co. v. Wyatt, 25 Tex. 291, 294 (1860); see also LeCroy, 713 S.W.2d at 340 and cases cited therein in notes 5-7. Just recently, this Court acknowledged that historically, the courts of Texas did not have an expansive view of the open courts provision. Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259 (Tex.1994). With respect to the discovery rule, for example, Texas decisions gave statutes of limitation effect even where the fact of injury was *323 unknown to the plaintiff, notwithstanding the open courts provision. Id. at 262. We held in Trinity that the statute of repose applicable to architects and engineers did not violate the open courts provision because the common law recognized the validity of statutes of limitations, regardless of whether the injury had been discovered. Id. at 263. (The question of whether the discovery rule should be adopted prospectively under the particular facts in Trinity was expressly reserved. Id.) We quoted from Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37-38 (1888): If ... the act of which the injury was the natural sequence was a legal injury,—by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff's right,—then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from the act.... [A] mere want of knowledge by the owner of injury to his property does not prevent the running of the statute. Id. at 236, 8 S.W. 36. The import of this recognition in Trinity is that there can be no doubt that the Texas courts in the Kennedy era never contemplated that the open courts provision of our Constitution precluded the Legislature from implementing a statute of limitations applicable to the claims of minors. As an historical note, the 1869 Reconstruction Constitution contained not only the open courts provision (as is the case with all six Texas Constitutions), but also included article XII, section 14, which afforded express protection for the rights of infants, married women, and insane persons. Limitations was not permitted to run until at least seven years after the removal of their "respective legal disabilities." If the open courts provision was intended to provide essentially the same protection, the inclusion of this provision would have been unnecessary. However, I would not base the result in this case on such a slim reed, particularly in light of the subsequent decisions of our Court which have added more substance and contours to the open courts provision. One of the earliest decisions of this Court to address the open courts provision in a context broader than physical access to the courts or unreasonable bond requirements was Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 560-61 (1916). The constitutionality of the Workmen's Compensation Act of 1913 was at issue. In addition to other state and federal constitutional challenges, the petitioner contended that because the statute abolished traditional common-law claims and defenses, it violated the open courts provision of the Texas Constitution. We recognized that "no one has a vested right in the continuance of present laws in relation to a particular subject." Id. 185 S.W. at 560. Our Court then held that the Legislature has the power to change and even to repeal the common law. The Legislature is imbued with the authority to abrogate entirely the common-law rule of contributory negligence as to employees and to relieve the employer of the consequences of its negligence. Id. 185 S.W. at 561. In enacting the workmen's compensation statute under consideration in Middleton, the Legislature substituted a new scheme of compensation for the traditional common-law remedies and defenses, but our Court did not expressly base its holdings on the fact of or the adequacy of this substituted compensation. (We recently held the 1989 Workers' Compensation Act (codified in 1993) constitutional in the face of an open courts challenge, finding that the benefits available under the Act adequately replaced a common-law negligence cause of action. Texas Workers' Compensation Comm'n v. Garcia, 893 S.W.2d 504 (Tex.1995) (upholding Texas Workers' Compensation Act, 71st Leg., 2d C.S., ch. 1, 1989 Tex.Gen.Laws 1, now codified at TEX.LAB. CODE § 401.001 et seq.)). The United States Supreme Court affirmed Middleton, concluding that there had been no deprivation of due process or liberty under the United States Constitution. Middleton v. Texas Power & Light Co., 249 U.S. 152, 162-63, 39 S.Ct. 227, 230-31, 63 L.Ed. 527 (1919). The Supreme Court confirmed what this Court had held: that the rules of law, including imposition of liability without fault and exemption from liability, are subject *324 to legislative modification. Id. at 163, 39 S.Ct. at 231. The United States Supreme Court did, however, indicate that a common-law claim or right could not be abrogated in its entirety unless "a reasonable substitute for the legal measure of duty and responsibility previously existing" was established. Id. This Court next had occasion to consider article I, section 13, in two cases involving attempts by municipalities to limit their liability for defects in streets and sidewalks. The first was Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944, 947 (1932), in which the city charter provision at issue required actual notice twenty-four hours prior to an accident as a prerequisite to making a claim. The notice provision was held to violate the "due process" rights accorded under article I, section 13. The term "open courts" was not mentioned. In City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692 (1938), the city charter required a claimant to give notice of the injury within ninety days following the accident and to obtain the consent of a majority of the commissioners to bring suit. We held that the obvious effect was to deny the plaintiff recourse in the courts. The plaintiff's ability to sue depended on the will of the commissioners. Id. 111 S.W.2d at 694. It was not until Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951 (1955), that this Court engaged in any extensive analysis of the substance of the "open courts" language in article I, section 13, in the context of limiting common-law causes of action. As in Hanks and City of Terrell, the plaintiff was injured when she tripped on an obstruction in a street or sidewalk. The city charter contained an absolute defense: the city was not liable for injury caused by such defects. On rehearing in Lebohm, this Court reviewed the jurisprudence in our state and in other jurisdictions regarding the authority of a legislature to effect change in the common law. For the first time, this Court included in the open courts analysis the question of whether a substitute remedy had been provided in limiting a common-law cause of action. We emphasized that the United States Supreme Court in Middleton, supra, upheld the Workmen's Compensation Act on the basis that "a reasonable substitute" for the previous legal measure of duty and responsibility was established. Id. at 954 (emphasis omitted). In Lebohm, we capsulized the import of the open courts section of our state constitution as follows: Thus it may be seen that legislative action withdrawing common-law remedies for well established common-law causes of action for injuries to one's "lands, goods, person or reputation" is sustained only when it is reasonable in substituting other remedies, or when it is a reasonable exercise of the police power in the interest of the general welfare. Legislative action of this type is not sustained when it is arbitrary or unreasonable. Id. at 955. In applying these principles to the charter provision in Lebohm, we held that no broad policy or general welfare considerations were advanced to justify the city's complete bar of claims as a reasonable exercise of the police power. We observed that we "could think of none inasmuch as the effect of the provision extends only to the city limits of the City." Importantly, however, we noted: In this connection, we are not to be understood as holding that the Legislature could not by general law abolish all causes of actions against cities for injuries growing out of simple negligence in the maintenance of streets. Id. We thus recognized in Lebohm that there may be instances in which the state can abolish common-law causes of action altogether if broad public policy or general welfare considerations exist. We adhered to this statement of the law in Waites v. Sondock, 561 S.W.2d 772, 774-75 (Tex.1977), but held that the Legislature could not constitutionally mandate a legislative continuance when the party opposing the continuance faced irreparable harm from the delay. In Waites, a mother in dire need of child support payments sought to compel her former husband to comply with the child support order. The trial court granted a legislative continuance, deferring the contempt hearing for at least six months. This Court analyzed the legislative policy behind the mandatory *325 continuance and found it arbitrary and unreasonable as applied to the facts of the case before it, citing Lebohm, supra. 561 S.W.2d at 774. The decision in Sax, which the Court today finds dispositive, likewise relied on Lebohm, and quoted the passage from Lebohm which recognizes that even if no reasonable remedy is substituted, the Legislature may nevertheless withdraw common-law remedies in the exercise of the police power for the general welfare as long as the legislative action is not arbitrary or unreasonable. Sax, 648 S.W.2d at 665. The Court in Sax specifically reaffirmed the interpretation of article I, section 13, set out in Hanks, Lebohm, and Waites, and stated: We hold, therefore, that the right to bring a well-established common law cause of action cannot be effectively abrogated by the legislature absent a showing that the legislative basis for the statute outweighs the denial of the constitutionally-guaranteed right of redress. In applying this test, we consider both the general purpose of the statute and the extent to which the litigant's right to redress is affected. Id. at 665-66 (emphasis added). However, subsequent decisions have focused more on the last sentence of the foregoing passage, "the extent to which the litigant's right to redress is affected," rather than focusing on whether the abolition of a common-law cause of action was a reasonable exercise of police power. Most notably, in the case of Lucas v. United States, 757 S.W.2d 687, 702 (Tex.1988) (Phillips, C.J., dissenting), Chief Justice Phillips urged the Court to adhere to the test clearly articulated in Lebohm. Id. at 716. His opinion contains a thorough and thoughtful analysis of the open courts provision, including its historical roots and its development in this and other jurisdictions. The decision in Sax was considered at some length in that dissent. Id. at 716-17. In my view, Chief Justice Phillips correctly analyzed the open courts provision, and disapproved of the fact that [w]hile Sax does not necessarily compel an incorrect analysis, in practice it has resulted in an almost exclusive focus on "the extent to which the litigant's right to redress is affected," with an almost total disregard of "the general purpose of the statute." Id. at 716. He noted that in Sax and its progeny, this Court has emphasized the nature and extent of the restriction on common-law causes of action to the virtual exclusion of other factors. "[T]he Court's `first concern' has been the absence of adequate substitute remedies." Id. at 717. The shortcoming of such an approach is that it leaves judges with unfettered discretion to rely on their own personal predilections in determining whether the substituted remedy is reasonable, without considering the right of the Legislature to exercise its police power and to weigh the competing considerations for itself. The reasonableness of the substituted remedy has been balanced against the reasonableness and necessity of the legislation and its underlying purposes. See generally Lucas, 757 S.W.2d at 717 (Phillips, C.J. dissenting); see also Nelson v. Krusen, 678 S.W.2d 918, 922 (Tex.1984). Chief Justice Phillips advocated that the Court return to the language of Lebohm and separate the issue of a reasonable alternative remedy from the issue of a reasonable exercise of police power: If the Legislature has provided or left in place a reasonable alternative remedy, judicial scrutiny is at an end, and properly so. The Legislature should have absolute discretion to substitute one adequate remedy for another, without its choice being subjected to judicial re-evaluation. If the Legislature has not provided or left in place a reasonable alternative remedy, however, the Constitution requires a second, separate inquiry. The courts must independently determine if the legislative action constitutes a reasonable exercise of the police power. Lucas, 757 S.W.2d at 718. Chief Justice Phillips correctly concluded that the determination of whether there had been a reasonable exercise of police power would not be satisfied by a mere finding that *326 the statute is rationally related to a legitimate state interest: A "reasonable exercise of the police power in the interest of the general welfare" thus requires that the statute address an important, not merely a legitimate, state interest, that such interest be perceived and articulated by the state, and that the remedies provided bear a real relationship to the social evil being addressed. Id. I would apply the test found in Lebohm and in Chief Justice Phillips' dissent in Lucas, which is not at odds with the test set out in Sax. To do otherwise is to restrict the Legislature unduly in carrying out its obligations under our Constitution: to exercise its police power where necessary to "ameliorat[e] a rationally perceived social evil." Id. Today's decision gives undue and overriding emphasis to the nature and extent of the restriction of common-law causes of action. The Court concludes that the minor's cause of action has been totally abrogated and that no reasonable substitute has been provided. The Court concludes without discussion that section 10.01 is not a reasonable exercise of the police power. I turn to the questions to be answered under the test set forth in Lebohm and in Sax: 1) if a common-law cause of action has been restricted or withdrawn by the Legislature, does section 10.01 substitute a reasonable remedy, and 2) if no reasonable remedy was substituted, is section 10.01 nevertheless a reasonable exercise of police power by the Legislature. III A The linchpin of the Court's holding today is that because of Wasson's legal disability as a minor, he could not bring suit in his own right until he reached majority. Accordingly, the Court concludes that the open courts provision would be violated if section 10.01 cut off his cause of action before he had the legal capacity to bring suit. There is no contention that Wasson otherwise would have been incompetent to bring suit. It is beyond dispute that the Legislature has the power to remove the legal disability of a minor such as Wasson. The legal disability is itself a statutory creation, TEX.CIV. PRAC. & REM.CODE § 16.001, and in numerous areas, our laws recognize that even before legal majority is attained, older minors may be entrusted with certain decisions, and they are accountable for their actions. Children as young as fifteen may be certified for criminal punishment as adults. Tex.Fam.Code § 54.02. At age twelve, the Family Code allows a minor to choose his or her managing conservator "by writing filed with the court," subject to court approval. Tex.Fam.Code § 14.07(a). Similarly, a minor twelve years and older may select his or her own guardian of their person or estate subject to court approval. Tex.Prob.Code § 118(a). In many instances, requiring a minor to bring a medical malpractice claim by age fourteen would not be unreasonable or arbitrary, particularly in light of the ways in which the law differentiates between children of various ages. An argument can be mounted that section 10.01 removed the legal disability of minors age twelve and over for purposes of bringing a medical malpractice action. The text of section 10.01 suggests such a construction: "minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim." TEX. REV.CIV.STAT. art. 4590i, § 10.01 (Vernon Supp.1994) (emphasis added). The Court in Sax did not consider whether there had been a removal of disability by the Legislature for purposes of instituting medical malpractice actions. Sax appears to have assumed that minors could not bring suit on their own behalf. See Barlow v. Humana, Inc., 495 So.2d 1048, 1051 (Ala.1986) (distinguishing Sax on the basis that in Alabama, a minor does not lack capacity to sue). However, I do not believe it is reasonable to construe section 10.01 as lowering the age of a minor's disability. The practical problems inherent in such a construction include the fact that the legal disability was not expressly removed for purposes of entering into a contract, which presumably would be necessary to enable a minor personally to *327 engage counsel to bring suit. The statute should be construed, however, to require suit to be brought on behalf of the minor, or in his or her name as the real party in interest. Nevertheless, the fact that the Legislature could have removed the legal disability of a minor such as Wasson and accordingly, could have removed any open courts question is highly significant. The Legislature unmistakably indicated in section 10.01 that as between the public policies underlying the disability statute, Tex.Civ.Prac. & Rem.Code § 16.001, and those leading to the passage of section 10.01, the interests served by section 10.01 are paramount. In view of the fact that the Legislature easily could have overridden its own disability statute, this Court should give considerable deference to the Legislature's determination that it is reasonable to require suit to be brought on behalf of a minor twelve years or older within the time specified in section 10.01. We did not consider this point in Sax. Moreover, the statute before the Court in Sax, article 5.82 of the Insurance Code, differs from section 10.01 in at least one important respect. The age limit within which a minor or someone on his or her behalf was required to file suit was increased from eight to fourteen years of age. This age was not chosen at random by our Legislature. The Legislature considered the opinions of a number of experts as to when a minor could verbalize inner problems and could directly communicate that he or she was experiencing a health problem. The Legislature also considered the age by which an impairment to the development of the child could be recognized. See Debate on Tex.H.B. 1048 on the Floor of the House, 65th Leg., R.S. 138-41 (March 22, 1977) (transcript available from House Committee Services) (statement of Representative Bock explaining expert opinions considered by the House State Affairs Committee in arriving at the age of fourteen). In enacting section 10.01, the Legislature rejected the lower age of eight set forth in the Sax statute. In most cases, by the time a child attains the age of twelve, a competent parent or legal guardian should be able to determine if an injury to the child has occurred as a result of negligent medical treatment. Requiring suit to be brought on behalf of the minor is a reasonable substitute for removing the right of a fifteen year old to bring suit in his or her own capacity after reaching majority, provided that the minor has a legally competent parent or legal guardian who has no conflict of interest that would preclude him or her from acting in the best interests of the minor. Compare Greathouse v. Fort Worth & Denver City Ry. Co., 65 S.W.2d 762, 765 (Tex.Comm'n App.1933, holding approved). The minor's rights are adequately safeguarded. See Smith v. Cobb County-Kennestone Hosp Auth., 262 Ga. 566, 423 S.E.2d 235, 239-40 (1992); Thompson v. Franciscan Sisters Health Care Corp., 218 Ill.App.3d 406, 161 Ill.Dec. 162, 165, 578 N.E.2d 289, 292 (1991). The Family Code empowers parents to protect the legal interests of their child, recognizing their right "to represent the child in legal action and to make other decisions of substantial legal significance concerning the child." Tex.Fam. Code § 12.04(7). The Rules of Civil Procedure similarly enable parents as next friends to enter into settlement agreements on behalf of their minor children. TEX.R.CIV.P. 44. In addition to having the right to pursue a claim on behalf of their children, parents usually have a financial incentive to bring an action on behalf of a child who has been injured by medical malpractice. See Mominee v. Scherbarth, 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717, 739 (1986) (Wright, J., dissenting). I recognize that in Sax, the Court declined to accept suit by a parent or guardian as a reasonable substituted remedy. On this point, I fundamentally disagree with the assumption in Sax that competent parents cannot be trusted to act in the best interest of their child. 648 S.W.2d at 667. Society entrusts the care of children to their parents, and the Legislature was entitled to conclude that parents may be relied upon to bring a cause of action for injuries to their child resulting from medical malpractice. See Strahler v. St. Luke's Hosp., 706 S.W.2d 7, 20 (Mo.1986) (Welliver, J., dissenting); Mominee, 503 N.E.2d at 739 (Wright, J., dissenting). *328 The law presumes that parents will take care of their children's needs in a variety of contexts. Parents are required by law to provide for the care, support, and nurture of their children. Tex.Fam.Code § 12.04. In the area of child custody, this Court has explained that the presumption that a child is best served by awarding custody to his or her natural parents is based upon a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible, and, as well, the best atmosphere for the mental, moral and emotional development of the child. Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex.1963). This expression stands in stark contrast to the portrayal of parents in Sax as potentially "ignorant, lethargic, or lack[ing] concern." Sax, 648 S.W.2d at 667. This conclusion in Sax is one aspect of our decision which should be reconsidered. In cases involving guardians for the mentally incompetent, this Court has intimated that the rights of one under a legal disability might be cut off by the action or inaction of a legal guardian. Most recently, in Ruiz v. Conoco, Inc., 868 S.W.2d 752, 756 (Tex.1993), our Court held that two suits filed by Ruiz and his wife before Ruiz was adjudged incompetent and before his wife was appointed guardian of his estate and person did not commence the running of limitations under section 16.003 of the Texas Civil Practice & Remedies Code. Accord Hopkins v. Spring Indep. Sch. Dist., 706 S.W.2d 325, 326 (Tex. App.—Houston [14th] 1986), aff'd, 736 S.W.2d 617 (Tex.1987). Ruiz did not involve a challenge under the open courts provision. It was decided solely on the basis of the statute's language and the policies underlying its adoption. In Ruiz, we gave considerable deference to a "considered legislative judgment that in enumerated circumstances the strong policy in favor of prompt disposition of disputes must give way to the need to protect a plaintiff who is unable to protect him or herself." 868 S.W.2d at 756 (quoting Tzolov v. International Jet Leasing, Inc., 232 Cal.App.3d 117, 283 Cal.Rptr. 314, 317-18 (1991)) (emphasis added). In Ruiz, we expressly left open the question of whether an action commenced on behalf of a legally disabled individual could operate as a bar: This does not mean that an action commenced by, or on behalf of, a legally disabled individual can never be given preclusive effect. 868 S.W.2d at 756. In Tinkle v. Henderson, 730 S.W.2d 163 (Tex.App.—Tyler 1987, writ ref'd), which was decided on an open courts issue, it was specifically noted that Tinkle, who became mentally incompetent following medical treatment, did not have a guardian at the time of the claimed injury. It was held that limitations had not run against him. Earlier decisions in our state recognized that in some instances, rights of the mentally incompetent can be lost due to the passage of time, notwithstanding the legal disability. In McLendon v. Comer, 200 S.W.2d 427 (Tex. Civ.App.—Texarkana 1947, writ ref'd n.r.e.), Homer Prior was adjudged a person of unsound mind, and a guardian was appointed. The guardian brought suit on Prior's behalf, foreclosing on a vendor's lien and obtaining an additional award of $1,200. The defendants in that suit deeded the tract at issue to the guardian in cancellation of the judgment. In later years, it was contended that title to this property had been obtained by the adverse possession of Comer and those claiming through him. It was held that limitations had run against Prior, in spite of his incapacity, because legal title previously had vested in his guardian following the foreclosure suit by the guardian on behalf of Homer. Id. at 430. This Court reached the same legal conclusion in Broussard Trust v. Perryman, 134 S.W.2d 308, 313 (Tex.Civ.App.—Beaumont 1939, writ ref'd). Our Court indicated in Latcholia v. Texas Employers Ins. Ass'n, 140 Tex. 231, 167 S.W.2d 164 (1942) that a minor who was not totally and permanently incapacitated could be required to give the statutory notice under the Workmen's Compensation Act then in effect or have his claim barred. Id. at 168. In Latcholia, the Court found the plaintiff to be totally and permanently disabled. Based on a review of the language in the Act, the *329 Court held that under those circumstances, good cause had been shown for the minor's failure to give notice of the injury. However, the Court pointed out that the statute allowed a minor to appear before the board without being represented by a guardian or next friend in cases in which the disability was temporary or partial, and the board was authorized to pay the award directly to the minor in such cases. The statute prohibited such a procedure only in the case of total and permanent disabilities. Id. 167 S.W.2d at 167. We further noted that the plaintiff in this case had no guardian and that no one came forth to act as next friend until his father filed a claim. Id. 167 S.W.2d at 166. More recently, at least one court of appeals has held that the notice provisions under our previous Workmen's Compensation Act applied to a minor, and the minor's claim for common-law negligence was barred because the minor did not give notice. Whitehead v. American Indus. Transp., Inc., 746 S.W.2d 273, 274-75 (Tex.App.—Texarkana 1988, writ denied). In Whitehead, a minor was killed on the job. He had failed to give written notice to his employer that he was reserving his rights to a common-law negligence action. As applied to the deceased minor, who was seventeen at the time he began his employment, the court held there was no constitutional violation: [W]e would be required to find that persons under eighteen, regardless of their age or experience, are incapable as a matter of law of making an intelligent choice concerning their right to compensation for injuries. This we are unwilling to do. The Legislature may exempt all persons under eighteen years from the waiver provisions of the Act if it desires, but the Constitution, in our judgment, does not require it. Id. at 275. The notice requirements of the Texas Tort Claims Act, TEX.CIV.PRAC. & REM.CODE § 101.101(a)-(c), were likewise found applicable to a claimant rendered physically and mentally incompetent where a guardian of her estate had been appointed. Rath v. State of Texas, 788 S.W.2d 48, 51 (Tex. App.—Corpus Christi 1990, writ denied). Citing McCrary v. Odessa, 482 S.W.2d 151, 154-55 (Tex.1972), the court of appeals held: "[s]ince the appointment of a guardian with authority to file a claim or file suit removed [her] disability, her failure to comply with the notice requirement was not excused." 788 S.W.2d at 51. McCrary held that a sixty-day notice requirement in a city charter violated the open courts provision as applied to a minor. Rath apparently relied on the statement in McCrary that the minor could not institute or settle a claim in court and was therefore excused from compliance with the notice provision until the disabilities were removed. McCrary did not explore the question of whether the appointment of a guardian constituted a removal of disabilities and consequently would have affected the result, but McCrary did cite City of Houston v. Bergstrom, 468 S.W.2d 588 (Tex.Civ. App.—Houston [14th Dist.] 1971, writ ref'd n.r.e.), as a "carefully considered case." 482 S.W.2d at 154. Bergstrom held that a thirty-day notice requirement violated the open courts provision as applied to a minor, but its holding was based in part on the fact that the plaintiff had no court-appointed guardian or guardian ad litem, and no one had established himself or herself as her next friend. 468 S.W.2d at 591. In other jurisdictions, the general rule is that if the disability statute is a general one, and the statute of limitations is likewise a general one, limitations will not run against a minor or an incompetent simply because a parent or next friend could have brought suit. See, e.g., Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 770 P.2d 182, 185 (1989). However, some courts have held that if a statute is specific or, in some cases, when a legal guardian is appointed by a court, limitations can commence to run. Dye v. Fremont County Sch. Dist. No. 24, 820 P.2d 982, 985-86 (Wy.1991) (parent's failure to give timely notice under tort claims statute did not bind minor; time for filing begins to run when guardian ad litem appointed); Baker v. Binder, 34 Mass.App.Ct. 287, 609 N.E.2d 1240, 1243 (1993) (father automatically appointed next friend when he filed suit on behalf of minor; limitations ran from that date as to minor's claims). *330 Section 10.01 is not a general statute, and it is not merely permissive. It is very specific in directing that suit must be brought on behalf of a minor within certain time limits. It should be given effect by this Court. A different result may obtain if a plaintiff demonstrates that he or she had no parent or legal guardian who was competent to bring suit, or that his or her parents or legal guardian had a conflict of interest that prevented them from acting in the minor's best interests. In such circumstances, the statute of limitations may well be unconstitutional as applied to such a plaintiff. But requiring a competent parent or legal guardian to bring suit does not constitute "an impossible condition" prohibited by the open courts provision. The concept of an "impossible condition" was explained in Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984). In that case, parents of a child born with Duchenne muscular dystrophy brought a "wrongful birth" suit, contending that the physician who treated the mother prior to and during pregnancy erroneously assured them that she was not a genetic carrier of the disease. (The cause of action asserted was that of the parents. They did not bring suit in a representative capacity as to this claim.) Suit was brought more than three years from the date the child was born, shortly after the parents alleged to have first discovered their child had the disease. Limitations under former article 5.82, section 4 was asserted as a defense, and its constitutionality under the open courts provision was challenged. The Court in Nelson emphasized that the common theme of Texas open courts decisions is that the Legislature cannot impose an impossible condition upon a potential claimant. Id. at 922. In discussing Sax, the Court noted that the case for an open courts violation was even more compelling in this wrongful birth suit than in Sax because in Sax "it was possible for the parents to bring their children's suits in time...." Id. at 923. Far from creating an impossible condition, section 10.01 tolls the statute for up to twelve years to allow parents or a legal guardian to bring a medical malpractice claim. Similarly, in Tinkle v. Henderson, supra, which held section 10.01 unconstitutional as applied to a mentally incompetent person where no guardian had been appointed, it was recognized that children are more likely than the mentally incompetent to have someone intimately interested in their welfare and inclined to act on their behalf. 730 S.W.2d at 166. Under standard principles of statutory construction, this Court must construe the statute to render it constitutional, if possible. See Key Western Life Ins. Co. v. State Bd. of Ins., 163 Tex. 11, 350 S.W.2d 839, 849 (1961). It is to be presumed that the Legislature has not acted arbitrarily or unreasonably: In passing upon the constitutionality of a statute, we begin with a presumption of validity. It is to be presumed that the Legislature has not acted unreasonably or arbitrarily; and a mere difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or unreasonable. The wisdom or expediency of the law is the Legislature's prerogative, not ours. Garcia, 893 S.W.2d at 520 (quoting Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968)). In the case before the Court today, Wasson was fully cognizant of his injury and of his potential claim, as was his mother. There is no indication that his mother or his father could not have instituted suit within the limitations period. Under these circumstances, the substituted procedure in section 10.01 which requires suit to be brought on behalf of Wasson within certain time limits is reasonable. B The inquiry is not at an end even if one were to conclude that the legislative scheme of allowing suit to be brought on behalf of a minor is not a reasonable substitute for limiting a minor's right to sue. The Legislature has the power to abrogate common-law causes of action altogether in the proper exercise of its police power. See discussion of Middleton and Lebohm, supra. I would hold that the exercise of legislative power was constitutional here. The Legislature articulated its findings and the basic purposes of article 4590i in *331 section 1. Those findings are lengthy and will not be quoted here. In sum, the Legislature found that there is a medical malpractice crisis in this state which has had a material adverse effect on the cost and availability of health care. The Legislature found it likely that there would be further reductions in the availability of health care in the future. These findings meet the test of an "important" state interest. The remedy, limiting the time over which physicians and health care providers face liability, is directly related to the crisis identified by the Legislature and bears a real relationship to the articulated legislative goal of making health care more affordable, and above all available, for all Texans. The Legislature reasonably concluded that reducing the potential of long-term liability would help to ease the strain on health care services. See Thompson, 578 N.E.2d at 291; Rohrabaugh v. Wagoner, 274 Ind. 661, 413 N.E.2d 891, 894 (1980); Mominee, 503 N.E.2d at 738 (Wright, J., dissenting). Without section 10.01, a physician could be forced to defend a claim arising out of injuries incurred during childbirth up to twenty years after the occurrence. Page Keeton explained in his memorandum to the Texas Medical Professional Liability Study Commission that a medical malpractice statute of limitations is aimed at "the prevention of the bringing of stale claims or claims that are made so long after the so-called negligent event occurred as to make it virtually impossible to ascertain the facts." Significantly, the statute at issue in Sax contained no such findings. The Court in Sax did not consider these public policy concerns or whether the legislative scheme bears a real relationship to the social evils being addressed. Taken in tandem with the Legislature's adoption of a higher threshold age at which limitations begins to run, the legislative findings support the constitutionality of this statute, and there is a valid basis for drawing distinctions between the statute under scrutiny in Sax and section 10.01. Admittedly, the findings and stated purposes of article 4590i are many of the same policy matters considered and rejected by the Court in Lucas v. United States, supra. In Lucas, our Court held that the caps on the dollar amounts recoverable under sections 11.02 and 11.03 of article 4590i violated the open courts provision. 757 S.W.2d at 692. Putting aside the question of whether the result in Lucas was correct, it is distinguishable. The principal infirmity of the damage caps was that it was unfair and unreasonable to impose the burden of supporting the medical care industry solely upon those persons who are most severely injured and most in need of compensation. Id. This Court held: In the context of persons catastrophically injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease.... In any event, we hold it is unreasonable and arbitrary for the legislature to conclude that arbitrary damages caps, applicable to all claimants no matter how seriously injured, will help assure a rational relationship between actual damages and amounts awarded. 757 S.W.2d at 691 (emphasis omitted). The statute of limitations in section 10.01 does not work such a hardship. The minor is entitled to recover for all injuries. There is a demonstrable nexus between limiting the time in which suit for malpractice must be brought and the goals articulated by the Legislature, which include availability and affordability of adequate professional liability insurance and hence, the availability and affordability of health care services. It is within the authority of the Legislature to make reasoned adjustments in the legal system, and we so held in Morrison v. Chan, 699 S.W.2d 205, 208 (Tex.1985). (Morrison held the intent of the Legislature in section 10.01 was to abolish the discovery rule. There, the patient discovered a hole in her bladder six months before limitations ran, but the running of the statute was not extended.) Compare Neagle v. Nelson, 685 S.W.2d 11 (Tex. 1985) (section 10.01 did not cut off claim for sponge left in abdomen). While a number of other decisions of our Court and the courts of appeals have considered whether a statute can cut off the claims of a minor, the propriety of Legislature's purported exercise of its police power was not presented. See, e.g., McCrary v. City of *332 Odessa, 482 S.W.2d 151, 153-54 (Tex.1972) (sixty-day notice requirement under city charter unconstitutional as to minors under open courts provision); Ladehoff v. Ladehoff, 436 S.W.2d 334, 337 (Tex.1968) (by virtue of specific probate code provision, minor not personally served may sue to set aside will ten years later when he attains majority); Latcholia v. Texas Employers Ins. Ass'n, 140 Tex. 231, 167 S.W.2d 164, 167 (1943) (minor totally and permanently disabled with no guardian not required to give thirty-day notice under the Workmen's Compensation Act); City of Houston v. Bergstrom, 468 S.W.2d 588, 591 (Tex.App.—Houston 1971, writ ref'd n.r.e.) (minority alone will excuse compliance with notice requirement). Looking to other jurisdictions, many courts have upheld statutes of limitation applicable to the claims of minors against due process and open courts challenges. See Barlow v. Humana, Inc., 495 So.2d 1048, 1052 (Ala. 1986) (open courts); Smith v. Cobb County-Kennestone Hosp., 262 Ga. 566, 423 S.E.2d 235, 239-40 (1992) (access to courts); Maine Med. Ctr. v. Cote, 577 A.2d 1173, 1175-76 (Me.1990) (open courts); Bissell v. Kommareddi, 202 Mich.App. 578, 509 N.W.2d 542, 544 (1993) (open courts); Thompson v. Franciscan Sisters Health Care Corp., 218 Ill.App.3d 406, 161 Ill.Dec. 162, 578 N.E.2d 289 (1991) (due process); see also Rohrabaugh, 413 N.E.2d at 891; Shaw v. Zabel, 267 Or. 557, 517 P.2d 1187, 1188 (1974) (en banc); Licano v. Krausnick, 663 P.2d 1066 (Colo.Ct.App. 1983) (all upholding statute against equal protection challenges). A number of other jurisdictions have struck down similar statutes on the basis of due process or open courts guarantees. See, e.g., Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 692 P.2d 280, 286 (1984) (open courts); Strahler, 706 S.W.2d at 11-12 (access to courts); Mominee, 503 N.E.2d at 723 (due process); see also Whitlow v. Board of Educ., 190 W.Va. 223, 438 S.E.2d 15, 23 (1993) (equal protection). Although I would not hold that section 10.01 could never be unconstitutional in its application, it is not unconstitutional as applied in this case. A statute need not be declared unconstitutional simply because it might be unconstitutional as applied to the facts of another case. See Nelson, 678 S.W.2d at 923. Emmanuel Wasson knew of his claim as early as 1988, and his mother hired a lawyer to represent him before May of 1990, which was still within the two-year limitations period under Section 10.01. Wasson was not the plaintiff the Court was concerned about in Sax. His right to pursue his claim was not precluded by the statute, but rather because he slept on his rights. It is not necessary to decide whether the exercise of the Legislature's police power would be proper as applied to different facts, such as a case where the minor's parent was incompetent. In this regard, it should be noted that the result I would reach as to Wasson is not necessarily at odds with Tinkle, supra, which held section 10.01 unconstitutional as applied to the mentally incompetent. It was noted in that decision that no guardian had been appointed, and the court did not engage in any analysis of the police power of the Legislature to abrogate common-law causes of action. IV A fundamental tenet in our jurisprudence is the recognition of the need for consistency and predictability in the decisions of our courts. This Court should be loath to overrule its prior decisions, particularly where an opinion has been cited and relied upon as frequently and as recently as has Sax. Our Court should not succumb to a temptation to continually revisit prior decisions as new fact situations arise or the concerns of the public shift. The Court similarly stresses the importance of stare decisis, but misapprehends the application of that doctrine to the case before us. The Court concludes that in order to uphold the constitutionality of section 10.01, it is compelled to "overrule Sax or to somehow limit the holding of that case to its facts." 900 S.W.2d 320. Sax should and must be limited to its facts in some respects because the Court had before it a different statute with a considerably different legislative history and different provisions. But the basic principles of Sax are sound, with limited exceptions noted above. Those principles should lead this Court to uphold section *333 10.01. The application of the rationale of Sax to this case leads only to a different result, not to a departure from the essence of Sax or from the decisions of this Court on which it was based. The Court concludes that Wasson and his parents, and those similarly situated, may justifiably rely on Sax and wait well beyond the statutory limitation period before bringing suit. In support of this premise, the Court cites Justice Scalia's concurring opinion in Quill Corp. v. North Dakota, 504 U.S. 298, 319, 112 S.Ct. 1904, 1916, 119 L.Ed.2d 91 (1992), which states "reliance upon a square, unabandoned holding of the Supreme Court is always justifiable reliance." 504 U.S. at 321, 112 S.Ct. at 1916 (emphasis in original). The balance of that quote, omitted by the Court, notes "reliance alone may not always carry the day." The most important aspect of Justice Scalia's comment, however, is its context. Justice Scalia observed: Congress has the final say over regulation of interstate commerce, and it can change the rule of Bellas Hess [the Supreme Court's longstanding decision] by simply saying so. We have recognized that the doctrine of stare decisis has "special force" where "Congress remains free to alter what we have done." 504 U.S. at 320, 112 S.Ct. at 1916. That principle applies with force here. Sax was decided before section 10.01 was renewed and extended by the Texas Legislature. The statute of limitations at issue in Sax has been altered by the Texas Legislature. Under such circumstances, it is not reasonable for any party to ignore a statute on the basis of a prior decision of this Court. Section 10.01 has never been held unconstitutional as applied to minors by this or any other court since its enactment in 1977, until today's decision. It is dangerous precedent indeed to hold that reliance by a party on his or her extrapolation of what this Court has held in other cases is a justification for striking down an otherwise valid act of the Legislature. * * * * * * Because I would conclude that section 10.01 of the Medical Liability Act does not violate the open courts provision of the Texas Constitution under the facts of this case, I respectfully dissent. NOTES [1] Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (Vernon Supp.1994). [2] When a trial court grants summary judgment without specifying the grounds, the summary judgment must be affirmed on appeal if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). The court of appeals, however, did not address Weiner's second ground for summary judgment. We address both grounds below. [3] The open courts provision states: All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law. Tex. Const. art I, § 13. [4] Under both Jilani and Felderhoff, the parent-child immunity doctrine prevents suits by a child against a parent with respect to "alleged acts of ordinary negligence which involve a reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child." Jilani, 767 S.W.2d at 672; Felderhoff, 473 S.W.2d at 933. [5] These provisions date back to at least 1911. See Sax, 648 S.W.2d at 663. [6] Section 16.003 provides: (a) A person must bring suit for ... personal injury ... not later than two years after the day the cause of action accrues. TEX.CIV.PRAC. & REM.CODE § 16.003. [7] Section 16.001 provides: (a) For purposes of this subchapter, a person is under a legal disability if the person is: (1) younger than 18 years of age, regardless of whether the person is married; or (2) of unsound mind. (b) If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period. TEX.CIV.PRAC. & REM.CODE § 16.001. [8] We note that when faced with the unconstitutionality of medical malpractice statutes similar to § 10.01, several other states have also applied the general tolling statute. See Whitlow v. Board of Educ., 190 W.Va. 223, 438 S.E.2d 15, 23 (1993); Strahler v. St. Luke's Hosp., 706 S.W.2d 7, 11 (Mo.1986); Mominee v. Scherbarth, 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717, 723 (1986); Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 692 P.2d 280, 286 (1984).

NO. 07-10-0146-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 27, 2011 _____________________________ BOBBY G. BARHAM, Appellant v. PATRICIA MCGRAW, Appellee _____________________________ FROM THE 13TH DISTRICT COURT OF NAVARRO COUNTY; NO. 08-17,231-CV; HONORABLE JAMES E. LAGOMARSINO, PRESIDING _____________________________ Opinion _____________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Blood may be thicker than water, but money beats everything. He that is greedy of gain troubleth his own house. Before us lies a dispute between brother and sister regarding the division of their deceased father's real estate. When their father died, the realty in question became the corpus of a trust to benefit his widow, Margie, the trust's trustee. Upon her death, the property remaining in it was to be distributed to the trustor's "descendants." Bobby Barham and Patricia Ann McGraw, his children, were two such descendants. Being trustee, Margie had the express authority to exchange, sell, lease, and partition on such terms and at such times as she "deem[ed] proper" the trust's corpus, and she exercised that authority by conveying various tracts of land to both children. Thereafter, Bobby concluded that the conveyances were unfair and resulted in Patricia receiving more than that to which she was entitled. This conclusion was founded upon a writing signed in February of 2005, by Margie, Bobby and Patricia. Therein, the parties allegedly "partitioned" the lands the two descendants were to receive from the trust, according to Bobby. And, the actual conveyances from Margie failed to abide by that supposed agreement. Because Bobby had "been praying for guidance" and felt "very comfortable with proposals that [were] made" and was "so sure that the way [his sister] convinced Mother to make the conveyances was so unfair to [him] and [his] family that [he could not] let the matter go unchallenged," he sued his sister and sought the specific performance of the so-called partition agreement. Patricia moved for and received summary judgment denying Bobby specific performance and sanctioning him for initiating frivolous litigation. Bobby then appealed the decision and contends that the trial court erred in granting his sister judgment and sanctions. We affirm in part and reverse in part. Summary Judgment Various grounds were alleged by Patricia in her motion for summary judgment. And, in granting it, the trial court did not specify upon which one it relied. Thus, the judgment may be affirmed on any ground that is meritorious. Harwell v. State Farm Mut. Auto Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995). And, the ground we focus on involves the statute of frauds and the lack of any adequate description of the property within the February 2005 writing. To be entitled to specific performance, an agreement must be valid and enforceable. Abraham Inv. Co. v. Payne Ranch, Inc., 968 S.W.2d 518, 527 (Tex. App. - Amarillo 1998, pet. denied). But, a deed or conveyance that does not sufficiently describe the land to be conveyed is not of such ilk. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945) (stating that it is well settled that before a court will decree the specific performance of a contract for the sale of land, the written agreement or memorandum required by the statute of frauds must contain the essential terms of a contract, expressed with such certainty and clarity that it may be understood without recourse to parol evidence to show the intention of the parties and in so far as the description of the property is concerned, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty); Nguyen v. Yovan, 317 S.W.3d 261, 267 (Tex. App. - Houston [1st Dist.] 2009, pet. filed) (also discussing the requirement to identify the land with reasonable certainty and holding that if it is not, then the conveyance is void). This rule has been applied when a party sought specific performance of a settlement agreement requiring the transfer of land, see e.g. Martin v. Thalman, 568 S.W.2d 460, 462 (Tex. Civ. App. - Beaumont 1978, no writ), and that appears to be the reason why Bobby, Patricia and their mother executed the letter agreement at issue. Margie allegedly sought "peace of mind" regarding which child was to get what from the trust. Per the letter agreement which Bobby drafted, Patricia was afforded two options. Each referred to various parcels of land he deigned to combine under different methodologies. The first was: Option 1 - Based on value You receive: * Massengale Place - less Tracy's house and land * Sheppard Place * Home Place * Page Place * That portion of the green place highlighted in the enclosed map The next was: Option 2 - Based on equal acres You receive: * Massengale Place - less Tracy's house and land * Sheppard Place * Rutledge Place * Lumley Place * Enough of the meadow to be exactly equal acres Attached to the letter was what purported to be an aerial view of the property. Yet, neither it nor the letter contained any legal description of the realty involved. Instead, Bobby simply mentioned the parcels by the aforementioned names. As previously discussed, when the essential elements of a property's description are left to inference or to development by parol, the description is insufficient to support a suit for specific performance irrespective of whether the parties themselves understood what land formed the subject matter of the conveyance. Mayor v. Garcia, 104 S.W.3d 274, 280-81 (Tex. App. - Texarkana 2003, writ dism'd w.o.j.). So too did the Mayor court note that the elements of an adequate description include reference to the location and quantity of the property involved. Id. at 280. The February letter at bar mentions nothing about the quantum or acreage of land involved in the conveyance. Nor does it refer to the metes, bounds, block, survey, city, county, or state in which the land is located or even a separate writing containing that information. Instead, the description consists of nothing more than names someone apparently attached to the different parcels at one time or another. Given these undisputed circumstances, we cannot say that the letter agreement satisfied the statute of frauds, and the trial court could have so held as a matter of law when granting Patricia summary judgment. Bobby, however, argues that there need not be an adequate description in the letter since the document merely evinced a partition of lands. Authority does exist indicating that a partition is not subject to the statute of frauds. Houston Oil Co. v. Kirkindall, 136 Tex. 103, 145 S.W.2d 1074, 1077 (1941). Nonetheless, Bobby's argument rests upon a false premise. The document at issue cannot be construed as a partition. The latter serves to divide property owned by co-tenants and concerns possession, not title. Id.; see also Dierschke v. Central Nat'l Branch of First Nat'l Bank of Lubbock, 876 S.W.2d 377, 380 (Tex. App. - Austin 1994, no pet.) (stating that an owner of a non-possessory interest cannot compel partition). The record is clear that neither Patricia nor Bobby had a right to possession of any realty held in the trust. Right to possession resided in their mother, the trustee. See Manchaca v. Martinez, 136 Tex. 138, 148 S.W.2d 391 (Tex. 1941). We have been cited to nothing of record indicating that either Patricia or Bobby held legal title to the realty when they signed the February 2005 letter. Nor did or does anyone dispute that legal title to the property lay with the trustee of their father's testamentary trust at the time. Indeed, if this was not so and if the two children owned the land, there would have been no need for their mother to seek "peace of mind" by transferring it to them. Consequently, the document Bobby drafted and tendered to his remaining family members was not a partition irrespective of his unilateral belief. In sum, the February 2005 letter agreement violates the statute of frauds and, therefore is void. We overrule issue one. Sanctions Bobby also challenges the sanctions levied by the trial court under section 9.012 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §9.012(c)(3) (Vernon 2002) (stating that if the court determines that a pleading has been signed in violation of any standard prescribed in §9.011, the court shall impose an appropriate sanction on the signatory, a represented party, or both). He alleges, among other things, that the requirements of the statute were not followed. We agree. Patricia filed her motion for summary judgment on May 8, 2009, and the trial court set it for submission on June 15, 2009. Through the motion, she not only sought judgment on the claims asserted by her brother, but also upon her counterclaim for sanctions. On July, 3, 2009, the trial court notified the parties by letter that Bobby had not filed a response to the motion, that it "trusts . . . [he] was served with the . . . motion" and that the motion was granted. Then, it informed the litigants that it would "sign the judgment when presented." No specific mention was made about the frivolousness of the pleadings, however. In response to the trial court's letter, Bobby's attorney notified the court that though he received the motion, the fiat "was left blank." Thus, "we never received any further notice of a hearing date", i.e. the date upon which the trial court would submit the motion for determination. Opposing counsel admitted to the accuracy of his opponent's representations, and the trial court rescheduled the submission date for August 28, 2009. On December 30, 2009, the trial court issued its letter informing the parties that it had decided once again to grant the motion and would sign the order when presented with it. Again, nothing expressly was said about Bobby's pleadings being groundless. However, in the judgment signed on January 21, 2010, the trial court concluded that the suit was groundless as "defined in §9.001(3)(B) of the Texas Civil Practice and Remedies Code" and assessed a $16,669.87 sanction per §9.012(c)(3) of that same Code. As can be seen from the aforementioned factual recitation, the trial court assessed sanctions within ninety days of concluding, either on December 30, 2009, or January 21, 2010, that Bobby filed groundless claims. This is problematic because it was obligated to delay the assessment of sanctions for at least 90 days from the date it found the pleadings baseless. See Tex. Civ. Prac. & Rem. Code Ann. §9.012(c) (Vernon 2002) (stating that sanctions shall not be imposed "earlier than 90 days after the date of the determination, at the trial or hearing or at a separate hearing following reasonable notice to the offending party"); Elkins v. Stotts-Brown, 103 S.W.3d 664, 668 (Tex. App. - Dallas 2003, no pet.) (first noting that the trial court determined that sanctions against Elkins were appropriate and, in the same order on the same day, imposed a sanction and then concluding that because this violated §9.012(c)'s requirement of a ninety-day interval between the date of determination of a violation and the imposition of a sanction, chapter 9 did not support the award). Because sanctions were levied here before expiration of the ninety-day period, we sustain the second issue. We reverse that portion of the trial court's summary judgment levying sanctions against Bobby G. Barham and affirm the remainder of the judgment. Brian Quinn Chief Justice

4 U.S. 208 (____) 4 Dall. 208 Water's Executors versus M`Clellan et al.[(2)]. Supreme Court of United States. SHIPPEN, Chief Justice. 1st. It is incumbent on the plaintiff, to prove his property in the goods, which were taken by the sheriff; and to do this, he has produced evidence of a former distress and sale, of the same goods, for rent due from Dewees to him. But the defendants answer, that the distress was fraudulent; because (among other reasons) the goods were left in the possession of the debtor. In the case of a voluntary sale of goods, the law, both in Pennsylvania and England, regards the continuance of the debtor's possession, as a badge of fraud. In England, the law is the same, where the sale is made by the sheriff; but in Pennsylvania a different rule, in that case, has prevailed; and where a relation, or friend, after a fair purchase, at public sale, leaves the goods in the occupancy and use of the debtor, it never has been deemed a fraud upon creditors. As, therefore, the purchase, on the present occasion, was not by a private bill of sale; but at an open, public, vendue; the continued possession *209 by Dewees does not, in the opinion of the Court, justify the defendant's taking and sale.[(3)] 2d. It has been objected, for the defendants, that the plaintiff was bound to show, that the distress was made on the premises; whereas, at least, a part of the goods appears to have been distrained elsewhere. However available this objection might have been upon a replevin, between the original parties, we do not think, that third persons can take advantage of it. 3d. It is urged, that there were a number of young cattle taken on the distress; and that as these have been fed, and reared, by the care and cost of Dewees, he had acquired a property in their increased value. Of the truth and operation of this allegation, the jury will consider: and, if they are of opinion, that the expense of maintaining, has exceeded a fair compensation for the use of the cattle, they will make a reasonable deduction from the plaintiff's demand. Verdict for the plaintiff. NOTES [(2)] Tried in the Circuit Court, West-Chester, 29th of May 1800, before SUIPPEN, Chief Justice, and YEATES, Justice. [(3)] The defendant's counsel cited the following cases on this point: 3 Co. 81. 2 T. Rep. 594, 5, 6. 1 Wils. 44. But see Levy v. Wallis, ante, p. 167, 8. Chancellor v. Phillips, post. The United States v. Cunningham, post.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-4287 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WINZEL DALLAS JACOBS, Defendant - Appellant. No. 17-4289 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WINZEL DALLAS JACOBS, a/k/a Star, a/k/a OG, Defendant - Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:09-cr-00114-WO-2; 1:08-cr- 00319-WO-1). Submitted: January 22, 2018 Decided: February 9, 2018 Before GREGORY, Chief Judge, and MOTZ and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. James E. Quander, Jr., QUANDER & RUBAIN, P.A., Winston-Salem, North Carolina, for Appellant. Robert Albert Jamison Lang, Assistant United States Attorney, Winston- Salem, North Carolina, Angela Hewlett Miller, Assistant United States Attorney OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Winzel Dallas Jacobs appeals the district court’s judgment revoking supervised release and imposing a 24-month prison term with no additional supervised release in No. 1:08-cr-00319-WO-1, and revoking supervised release and imposing a concurrent 24- month prison term to be followed by five years’ supervised release in No. 1:09-cr-00114- WO-2. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), concluding that there are no meritorious grounds for appeal but questioning whether Jacobs’ within-Policy Statement range revocation sentence was plainly unreasonable. Although he was advised of his right to file a pro se supplemental brief, Jacobs did not file one. We affirm. “A district court has broad discretion when imposing a sentence upon revocation of supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We will affirm a revocation sentence that “is within the prescribed statutory range and is not plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 440 (4th Cir. 2006). “When reviewing whether a revocation sentence is plainly unreasonable, we must first determine whether it is unreasonable at all.” United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). “This initial inquiry takes a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal quotation marks omitted). A sentence can be either procedurally or substantively unreasonable. Webb, 738 F.3d at 640. A sentence will be deemed procedurally unreasonable if the judge failed to 3 consider the Chapter Seven Policy Statements or pertinent 18 U.S.C. § 3553(a) (2012) sentencing factors or if the judge failed to “‘provide a statement of reasons for the sentence imposed.’” Thompson, 595 F.3d at 547 (quoting Moulden, 478 F.3d at 657); Crudup, 461 F.3d at 440. A revocation sentence is substantively unreasonable if the district court did not rely on a proper basis in rendering its sentence. Crudup, 461 F.3d at 440. Only if a sentence is procedurally or substantively unreasonable will we proceed to the second step: determining whether the sentence is “plainly unreasonable.” Id. at 439. A sentence is plainly unreasonable if it runs “afoul of clearly settled law.” Thompson, 595 F.3d at 548. In fashioning an appropriate sentence, the primary focus is “sanction[ing] the violator for failing to abide by the conditions of the court-ordered supervision.” U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt. 3(b), p.s. (2009). Thus, “the court should sanction primarily the defendant’s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.” USSG ch. 7, pt. A(3)(b); see 18 U.S.C. § 3553(a)(1). The court also must consider some of the factors enumerated under § 3553(a), though not the need for the sentence “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). See 18 U.S.C. § 3583(e); Crudup, 461 F.3d at 439. Here, the district court made no errors in determining Jacobs’ statutory maximum revocation sentence, finding that the most serious infraction was a Grade B violation, and establishing the 18- to 24-month Policy Statement range. In determining that a Policy 4 Statement range sentence was appropriate, the district court took into account Jacobs’ conduct during supervision and his continued drug use. Although the court did not expressly cite Jacobs’ breach of trust, the court recited Jacobs’ allocution from his original sentencing where he attributed his crimes to his drug abuse, professed his desire to improve himself and stay sober, and avowed to never repeat his offenses. The court observed that, despite these promises, Jacobs returned to substance abuse during his period of supervision and fled after his termination from a substance abuse treatment program instead of reporting to the probation office as directed. Finally, the court noted that failure to impose a prison sentence for Jacobs’ violations would not create the deterrent necessary to prevent recidivism. We conclude that Jacobs’ within-Policy Statement range sentence was not unreasonable, much less plainly so. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious grounds for appeal. We therefore affirm the district court’s judgment. This court requires that counsel inform Jacobs, in writing, of the right to petition the Supreme Court of the United States for further review. If Jacobs requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Jacobs. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-03-00489-CR Eric Klingemann, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT NO. 9034119, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING MEMORANDUM OPINION Eric Klingemann seeks to appeal from a judgment of conviction for aggravated robbery. The trial court has certified that (1) this is a plea bargain case and Klingemann has no right of appeal, and (2) that Klingemann waived his right of appeal. The appeal is dismissed. See Tex. R. App. P. rule 25.2(d). __________________________________________ W. Kenneth Law, Chief Justice Before Chief Justice Law, Justices B. A. Smith and Patterson Dismissed for Want of Jurisdiction Filed: September 25, 2003 Do Not Publish 

285 S.E.2d 328 (1982) STATE of North Carolina v. Pat Burnette SHOOK (2 Cases). Nos. 8128SC525 and 8128SC618. Court of Appeals of North Carolina. January 5, 1982. Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for the State. Swain & Stevenson by Joel B. Stevenson and Kenneth T. Davies, Asheville, for defendant-appellant. BECTON, Judge. I A. State's Evidence During July and August 1980 the Asheville Police Vice Squad conducted an investigation *329 of Classic Escort Service, a business owned and operated by defendant. During this period, Vice Squad detectives observed females employed by defendant leaving the business with males and accompanying them to motel rooms. Later four of these employees pleaded guilty to prostitution. Detective Vance Smith testified that he initially went to defendant's place of business on 22 July 1980 to investigate a complaint of vandalism. At that time defendant asked him if he had any information regarding an investigation of her business. She informed Smith that such information "would be worth a dinner or something of that nature." Smith discussed this conversation with his supervisor and began taperecording his subsequent conversations with defendant. On 8 August 1980 defendant told Smith she would pay him $200 a month for the information. Four days later defendant met with Smith in his van and paid him the $200 in cash. She was arrested upon leaving the van. B. Defendant's Evidence Defendant testified that she has known Smith since 1973 and had sexual relations with him at least six times in 1979 and 1980. She testified that she met with Smith in July 1980 to discuss his coming to work for her as a security guard for $200 a month and that Smith was the one who suggested the idea of his receiving money in exchange for information. Defendant denied having any knowledge that her employees were prostitutes. II In her prostitution and bribery cases, defendant brings forward five assignments of error. We have examined each one and deem Assignment of Error No. 2 to be dispositive on appeal. Therein defendant assigned error to the admission into evidence of various tape recordings of alleged conversations between her and Smith during August 1980. She alleged that the tapes were played to the jury over her objections and before any proper foundation was laid. Prior to their admission into evidence, Smith testified about his conversations with defendant from 4 August until 12 August 1980. He then informed the jury that six of these conversations had been recorded. The State proceeded to play tapes of conversations between defendant and Smith which allegedly occurred on 6, 8, 11 and 12 August. The record on appeal indicates that portions of each tape were inaudible, and that the court reporter made no attempt to transcribe any of the tapes. We agree with defendant that this evidence constituted prejudicial and reversible error. In State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971), our Supreme Court emphasized that tape-recorded evidence must be properly authenticated before it is admissible. The trial court must, therefore, conduct a voir dire hearing to determine the tapes' admissibility upon objection to their introduction. During such a voir dire hearing, the State must satisfy the trial court of the following: (1) that the recorded testimony was legally obtained and otherwise competent; (2) that the mechanical device was capable of recording testimony and that it was operating properly at the time the statement was recorded; (3) that the operator was competent and operated the machine properly; (4) the identity of the recorded voices; (5) the accuracy and authenticity of the recording; (6) that defendant's entire statement was recorded and no changes, additions, or deletions have since been made; and (7) the custody and manner in which the recording has been preserved since it was made. [Citations omitted.] 279 N.C. at 17, 181 S.E.2d at 571. The Lynch Court further emphasized that such a voir dire enables the trial judge to determine whether the tapes are audible, intelligible, or fragmentary and whether they contain improper or prejudicial matter. In addition, the voir dire provides counsel the opportunity to object to portions of the tapes which he deems to be incompetent. Incompetent matters can, therefore, be kept from the jury. *330 In the case sub judice defendant timely objected to the playing of each taped conversation. The trial court overruled each objection and allowed the tapes to be played before the jury. No voir dire hearing was ever conducted. Detective Smith identified the voices on the tapes as his and defendant's. He testified that he operated the tape recorder; that the tapes had not been altered; and that the tapes had been stored in the safe since the meetings with defendant. His testimony, however, also reveals that large portions of the tapes were either inaudible or unintelligible. Indeed, as to one tape recording, the trial court was compelled to say: COURT: Can we agree that this recording is probably audible if someone uses a different type of listening device? To listen to it the way we are, apparently is a waste of our time. These observations raise the question of whether the recording device was operated properly. More important, it raises doubts as to the accuracy of the recordings. Significantly, the trial court's remarks, that one of the inaudible recordings was probably audible if someone used a different type of listening device and that a transcript had been made of the tape, may have given the impression that the court believed the tape to be accurate. In addition, Smith was allowed to testify from alleged transcripts of the tapes, even though there appeared to be discrepancies in a transcript typed by the police department and one prepared for the defense. Since the publicity surrounding the Watergate hearings and particularly the infamous "gap" in the Nixon tapes, we believe that the American public (indeed, a jury) may be inclined to view gaps or inaudible portions in a taped conversation between an accused person and others as containing evidence which would incriminate the accused. The trial court's conduct in the case sub judice lends credence to this belief. Defendant was clearly prejudiced by the failure of the trial court to follow the requirements as mandated by Lynch and is entitled to a new trial. Other assignments brought forward by defendant involve matters that should not recur at a subsequent trial. III After giving notice of appeal following her conviction on prostitution and bribery charges, defendant was released upon posting a $30,000 bond which contained, among other things, the following special condition: "To cease and desist in any private enterprise, and to clear any business activities through the District Attorney's office, to be reviewed by the Presiding Judge." On 17 March 1981, the District Attorney, alleging that defendant was still the owner and operator of Classic Escort Service, a business engaged in prostitution, moved that defendant's bond be revoked and that she commence serving her prison sentence. A show cause order was issued on 17 March 1981, and the matter came on for hearing on 23 March 1981. The trial court made findings, concluded that defendant had violated the special condition of her bond, ordered her appeal bond revoked and placed her in custody. Defendant appealed and moved the trial court to stay execution of its order. The trial court denied her motion, and defendant then filed a petition for temporary stay and a petition for writ of supersedeas with this Court. We first granted the petition for a temporary stay and then granted the petition for a writ of supersedeas. Defendant's appeal then followed its normal course. It is not necessary to address defendant's assignment of error concerning the order revoking her bond, since we granted her petition for a temporary stay and her petition for a writ of supersedeas. The issues she brings forward are moot. She has not suffered a loss in No. 8128SC618, the bond revocation proceeding, and she has been granted a new trial in No. 8128SC525, the prostitution and bribery cases. For the foregoing reasons, defendant is entitled to a New trial. MORRIS, C. J., and ARNOLD, J., concur.

823 F.2d 478 SOUTHERN RAILWAY COMPANY, Plaintiff-Appellee,v.GEORGIA KRAFT COMPANY, Defendant-Appellant. No. 86-8379. United States Court of Appeals,Eleventh Circuit. Aug. 4, 1987. Robert A.B. Reichert, Macon, Ga., for defendant-appellant. F. Kennedy Hall, J. Steven Stewart, Macon, Ga., for plaintiff-appellee. Appeal from the United States District Court for the Middle District of Georgia. Before RONEY, Chief Judge, KRAVITCH and EDMONDSON, Circuit Judges. EDMONDSON, Circuit Judge: 1 Georgia Kraft Company ("Georgia Kraft") appeals from a jury verdict rendered against it in the United States District Court for the Middle District of Georgia. Because we find that the district court erroneously restricted the issues presented to the jury, we vacate the district court's judgment and remand for a new trial. 2 In 1951, Georgia Kraft and Southern Railway Company ("Southern Railway") made a sidetrack agreement, placing on each of the parties obligations to be performed in Bibb County, Georgia. As part of the agreement, Georgia Kraft agreed to maintain the sidetrack and to indemnify Southern Railway against "any and all damage resulting from negligence of" Georgia Kraft.1 3 On September 12, 1980, Rufus Johnson, an employee of Southern Railway, was on the premises of Georgia Kraft to switch various rail cars on the tracks covered by the sidetrack agreement. Georgia Kraft had been having problems with water overflows from nearby tanks that caused an area of mud and slush around its sidetracks. In the line of his work, Johnson crossed that muddy area. A while later, he crossed the track by mounting the ladder on one side of a car, crossing the catwalk between cars, and coming down the ladder on the other side. As he was dismounting the ladder, he fell and injured his right knee. 4 Johnson sued Georgia Kraft in state court, contending that the mud he picked up while crossing the sidetrack caused him to fall. The court in that action granted summary judgment in favor of Georgia Kraft.2 5 Johnson filed a different suit against Southern Railway under the Federal Employers' Liability Act (FELA), 45 U.S.C.A. sec. 51, et seq. (1972). Southern Railway advised Georgia Kraft that it intended to settle with Johnson and offered Georgia Kraft the opportunity either to settle or to take over the defense of the case against Southern Railway. Georgia Kraft declined to do either. Southern Railway subsequently decided to settle with Johnson and to do so paid the amount of $275,000.00. 6 After settling with Johnson, Southern Railway sued Georgia Kraft for indemnity under the terms of the sidetrack agreement, invoking the diversity jurisdiction of the federal district court. At the first pre-trial conference, the parties agreed that the issues to be submitted to the jury included whether or not Georgia Kraft was negligent and whether the negligence of Georgia Kraft, if any, was the proximate cause of the injury to Johnson. 7 At a second pre-trial conference held the afternoon before the trial, the district court judge decided not to present those issues to the jury, but to limit the issues to whether the settlement paid by Southern Railway to Johnson was reasonable. The jury decided that it was, and the court entered judgment in favor of Southern Railway in the amount of the settlement plus legal fees, expenses, and interest from the date of payment of the settlement. Georgia Kraft appealed to this court. 8 Georgia Kraft's primary contention is that the district court erred by restricting the issues in the trial. Georgia Kraft argues that the jury should have also been allowed to determine whether Georgia Kraft was negligent in its maintenance of the sidetrack and, if so, whether that negligence was the cause of Johnson's injury. In our view, the district court limited the issues for trial too much. 9 For many years, the majority rule was that an indemnitee, such as Southern Railway, must show actual liability to an injured person before it could recover against an indemnitor, in this case Georgia Kraft. See, e.g., Southern Ry. Co. v. A.O. Smith Corp., 134 Ga.App. 219, 213 S.E.2d 903 (1975) (judgment required for indemnity prior to 1972). The rule gradually changed, however, so that an indemnitee, after giving the indemnitor notice and an opportunity to defend, could settle a lawsuit and claim indemnity upon a showing that the decision to settle was reasonable. See Missouri Pacific R.R. Co. v. Arkansas Oak Flooring Co., 434 F.2d 575, 580 (8th Cir.1970); Miller & Co. of Birmingham v. Louisville & Nashville R.R. Co., 328 F.2d 73, 78 (5th Cir.), cert. denied, 377 U.S. 966, 84 S.Ct. 1648, 12 L.Ed.2d 737 (1964)3; Chicago, R.I. & P.R. Co. v. Dobry Flour Mills, Inc., 211 F.2d 785, 788 (10th Cir.), cert. denied, 348 U.S. 832, 75 S.Ct. 55, 99 L.Ed. 656 (1954); Superior Rigging & Erecting Co. Inc. v. Ralston Purina Co., 172 Ga.App. 79, 322 S.E.2d 95 (1984); Ranger Construction Co. v. Robertshaw Controls Co., 158 Ga.App. 179, 279 S.E.2d 477 (1981); O.C.G.A. sec. 51-12-32(c) (1982). 10 In the instant case, Southern Railway notified Georgia Kraft of the lawsuit and gave that company an opportunity to defend, but Georgia Kraft refused. At trial, therefore, Southern Railway was not required to prove that it actually would have been liable to Johnson, only that it was potentially liable and settled the lawsuit in good faith. 11 The fact that an indemnitee was potentially liable to an injured party is a necessary condition for the indemnitor to be liable to the indemnitee. Still, if the indemnitee reasonably settled with the injured party, but the injury is not covered by the indemnity agreement, then the indemnitor is not liable to the indemnitee.4 Thus, the question of the coverage of the indemnity contract between Georgia Kraft and Southern Railway remains to be decided. Missouri Pacific R.R. Co. v. Int'l Paper Co., 618 F.2d 492, 496 (8th Cir.1980); cf. Southern Ry. Co. v. Acme Fast Freight, 193 Ga. 598, 19 S.E.2d 286 (1942) (under Georgia vouching statute, judgment conclusive as to liability of indemnitee, but not indemnitor). Georgia Kraft agreed to indemnify Southern Railway against "any and all damage resulting from negligence of" Georgia Kraft Co. or Georgia Kraft's agents. 12 One strong maxim of Georgia indemnity law is that indemnity contracts will be construed to hold an indemnitee (here Southern Railway) harmless against its own actions only when that intent is expressed in plain, clear, and unequivocal terms. Brown v. Seaboard Coast Line R. Co., 554 F.2d 1299 (5th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977); Foster v. Kenimer, 167 Ga.App. 567, 307 S.E.2d 30 (1983); Bohannon v. Southern Ry. Co., 97 Ga.App. 849, 104 S.E.2d 603 (1958). In the absence of explicit language, courts will not interpret an indemnity agreement as a promise to indemnify regardless of fault. Georgia State Telephone Co. v. Scarboro, 148 Ga.App. 390, 251 S.E.2d 309 (1978). 13 In the instant case, there is no indication that by promising to indemnify against damage caused by its own negligence, Georgia Kraft intended to indemnify Southern Railway regardless of who was at fault. The language in this contract is a far cry from that in cases where Georgia courts have found an intention to indemnify for the other party's fault. See, e.g., Southern Ry. Co. v. Ins. Co. of North America, 228 Ga. 23, 183 S.E.2d 912 (1971) ("whether the [loss, injury or damage] may result from the negligence of Railroad or otherwise"); Arthur Pew Construction Co., Inc. v. Bryan Construction Co., Inc., 156 Ga.App. 780, 275 S.E.2d 384 (1980) ("any and all claims ... which arise out of the act or omission" of indemnitor); Georgia Ports Authority v. Central of Georgia Ry. Co., 135 Ga.App. 859, 219 S.E.2d 467 (1975) ("negligence or other causes"); Seaboard Coast Line R.R. Co. v. Dockery, 135 Ga.App. 540, 218 S.E.2d 263 (1975) ("caused by or in any way connected with" indemnitor's use of premises); accord, Smith v. Seaboard Coast Line R.R. Co., 639 F.2d 1235 (5th Cir. Unit B 1981) ("in any way connected with" indemnitor's use of leased property)5; Miller & Co. of Birmingham v. Louisville & Nashville R.R. Co., 328 F.2d 73, 76 (5th Cir.) ("any and all claims"), cert. denied, 377 U.S. 966, 84 S.Ct. 1648, 12 L.Ed.2d 737 (1964); Seaboard Coast Line R.R. Co. v. Union Camp Corp., 145 Ga.App. 417, 243 S.E.2d 631 (1978) ("any and all loss" insufficient to cover negligence of indemnitee); Robert & Co. Assocs. v. Pinkerton & Laws Co., 120 Ga.App. 29, 31, 169 S.E.2d 360, 363 (1969) ("if the word negligence had been used then it might be open to question that it was limited to liability only for negligence"). Georgia law, then, requires a conclusion that Georgia Kraft agreed only to indemnify for damages caused by Georgia Kraft's negligence. 14 The remaining question is the definition of negligence that the indemnity agreement contemplated. Georgia Kraft argues that the word "negligence" means common-law negligence, while Southern Railway contends that it meant only the degree of negligence necessary for liability under FELA. We conclude that the agreement contemplated common-law negligence. 15 In Georgia Ports Authority, 135 Ga.App. 859, 219 S.E.2d 467, the Georgia Court of Appeals found that the indemnity contract contemplated statutory liability under FELA. The court, however, rested its holding on language in the indemnity agreement in which the indemnitor agreed to indemnify "against any and all claims ... resulting from negligence or other causes." Id. at 861-63, 219 S.E.2d at 469-70 (emphasis added). See also Union Camp Corp. v. Louisville & Nashville R.R. Co., 130 Ga.App. 113, 202 S.E.2d 508 (1973) (agreement to indemnify against losses arising from "any injuries, loss, or damage caused by or contributed to by the failure of [the indemnitor] ... to keep the right-of-way of said sidetrack free and clear" included FELA liability). In other cases where the courts have held an indemnity agreement to cover FELA liability, the contracts have contained similar language. See, e.g., Burlington Northern, Inc., 671 F.2d at 284 ("any act or omission"); Missouri Pacific R.R. Co., 618 F.2d at 496 ("any act or omission"); Steed, 529 F.2d at 837 ("any act or omission"); Dobry Flour Mills, Inc., 211 F.2d at 788 ("any act or omission"). 16 In this case, the indemnity agreement clearly says "negligence" of Georgia Kraft. There is no language indicating any ground for liability other than common-law negligence. The duty that Georgia Kraft owed to Johnson, then, is to be measured, not according to FELA standards, but according to the standards of common-law negligence. 17 Georgia Kraft's liability to Southern Railway, however, is not so confined as its liability to Rufus Johnson. By signing the indemnification agreement, Georgia Kraft also assumed a contractual duty to Southern Railway. That duty is to indemnify Southern against "any and all damage resulting from" the negligence of Georgia Kraft (emphasis added). "Any and all damage" would encompass any potential liability by Southern Railway, caused by Georgia Kraft's negligence. Thus, if Georgia Kraft breached its duty of care toward Johnson, and that breach caused Southern Railway to be potentially liable to Johnson, under either common-law negligence or FELA standards, then Georgia Kraft must indemnify Southern Railway. 18 The evidence in the record is far from conclusive that Georgia Kraft was negligent in its common-law duty toward Johnson or that the negligence, if any, in fact caused--or put differently, justified--Southern Railway's payment to Johnson of $275,000. Consequently, Georgia Kraft has a right to have determined in a judicial proceeding (1) whether Georgia Kraft breached its common-law duty of care to Rufus Johnson, (2) if so, whether that breach caused Southern Railway to be potentially liable (pursuant to FELA or otherwise) to Johnson, and (3) whether the settlement entered into between Southern Railway and Johnson was reasonable and made in good faith. Accordingly, the trial court erred in limiting the trial to whether the settlement paid to Johnson was reasonable. 19 In light of this error, the case must be remanded for a new trial. Other issues were raised on appeal, but it is unnecessary that they be reached.6 20 Accordingly, we VACATE the judgment of the district court and REMAND for a new trial in accordance with this opinion. 1 The indemnity provision is contained in Paragraph 5 of the agreement, which provides that: ... the PARTY OF THE SECOND PART [Georgia Kraft Co.] hereby covenants and agrees in consideration of the advantage to be by it derived from the operation of said industrial tracks: ... 5. That it will indemnify and save harmless the Railway Company against any and all damage resulting from negligence of the party of the second part, its servants and employees, in and about said industrial tracks and the rights of way therefor; and furthermore, against any and all claims, demands, suits, judgments or sums of money accruing for loss or damage by fire communicated by locomotive engines or trains of the Railway Company to buildings or structures used by the party of the second part, or its tenants, in connection with the business served by said tracks, or to the contents of such buildings or structures, or to other property stored by or with the consent of the party of the second part upon or near said tracks. The Railway Company hereby stipulates for this protection, as a condition of its agreement, herein expressed, to afford the above described terminal services and facilities to the party of the second part elsewhere than at its regular station. 2 In the state court action, Georgia Kraft denied any negligent conduct but moved for summary judgment based on Johnson's equal knowledge of the hazardous conditions. The record before us does not contain a transcript of the hearing on that motion. The state court granted Georgia Kraft's motion without opinion and dismissed the complaint 3 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc ), this court adopted as precedent all decisions of the former Fifth Circuit Court of Appeals decided prior to October 1, 1981 4 If the contract contemplated that Georgia Kraft would be liable for any actions or omissions that would make Southern Railway liable to railroad employees, our inquiry would end here. Southern Railway's settlement with Johnson would determine both its liability under FELA and Georgia Kraft's liability under the indemnity provision of the sidetrack agreement. See, e.g., Burlington Northern, Inc. v. Hughes Bros., Inc., 671 F.2d 279, 283-84 (8th Cir.1982); Missouri Pacific R.R. Co., 618 F.2d at 496; Steed v. Central of Georgia Ry. Co., 529 F.2d 833, 837 (5th Cir.), cert. denied, 429 U.S. 966, 97 S.Ct. 396, 50 L.Ed.2d 334 (1976); Miller & Co. of Birmingham, 328 F.2d at 77-78; Dobry Flour Mills, Inc., 211 F.2d at 788 5 In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982), the Eleventh Circuit Court of Appeals adopted as precedent all decisions of Unit B of the former Fifth Circuit 6 Evidentiary questions are rarely well decided in the abstract; the answers are too dependent upon the actual circumstances existing at trial. Obviously the injection of new issues on retrial will present the trial judge and the parties with different circumstances; and the district court and the parties may consequently reconsider and change their minds as to how to handle these evidentiary matters next time. This remand allows them to do so freely

709 F.2d 1500 Careyv.Cunningham Drug Stores, Inc. 81-3057 UNITED STATES COURT OF APPEALS Sixth Circuit 3/31/83 N.D.Ohio AFFIRMED

835 F.2d 258 Charles E. LARSEN, Petitioner-Appellant,v.James K. FRAZIER; Attorney General, State of Oklahoma,Respondents-Appellees. No. 87-1280. United States Court of Appeals,Tenth Circuit. Dec. 11, 1987. Charles E. Larsen, pro se. Robert A. Nance and Douglas B. Allen, Asst. Attys. Gen. (Robert H. Henry, Atty. Gen., of Okl., with them on the brief) Oklahoma City, Okl.; for Respondents-Appellees. Before McKAY and BALDOCK, Circuit Judges, and GREENE, District Judge.* PER CURIAM. 1 After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.2. The cause is therefore ordered submitted without oral argument. 2 Petitioner appeals from an order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. We affirm. 3 In November, 1980, petitioner pled guilty to and was convicted of burglary pursuant to a plea bargain. In January, 1984, he was sentenced to ten years imprisonment after pleading guilty to unlawful use of a mislaid credit card after former conviction of a felony. The January, 1984, sentence was enhanced by the November, 1980, conviction. Petitioner did not file a direct criminal appeal from the conviction relating to the January, 1984, sentencing. 4 Petitioner, however, did file an application for state post-conviction relief in the District Court of Oklahoma County attacking the November, 1980, conviction. Petitioner alleged, among other things, that his plea bargain was null and void as a violation of Okla. Const. art. XXIII, Sec. 8. Okla. Const. art. XXIII, Sec. 8 provides: "Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void." Without specific discussion of the allegation, the District Court of Oklahoma County denied relief and concluded petitioner voluntarily and knowingly waived his rights and pled guilty. The Oklahoma Court of Criminal Appeals affirmed and stated that it had examined the application filed in the Oklahoma district court and found that even if petitioner's statements were true, he had failed to demonstrate that he was entitled to any relief. 5 Petitioner then filed a petition for habeas corpus relief in the district court alleging, among other things, that his plea bargain was void. The district court refused to review the allegation, finding that it contained no assertion of a violation of the constitution or laws of the United States. 6 This court reversed and remanded in Larsen v. Frazier, Unpublished No. 86-1593 (10th Cir. filed January 6, 1987). This court determined that petitioner had alleged a violation of due process and equal protection guaranteed by the Fourteenth Amendment. More specifically, this court determined that an allegation that a state's refusal to apply the protections of its own constitution is a denial of fundamental fairness guaranteed by the Due Process Clause. 7 Upon reconsideration of the merits of the claim, the district court found that the Oklahoma courts have never construed the Oklahoma Constitution to prohibit guilty pleas, plea bargains, or the waiver of constitutional rights associated with the plea process. The district court concluded petitioner can make no argument on the law or the facts in support of his claim for relief. Petitioner appealed. 8 The validity of guilty pleas and plea bargains is a matter of state law. We will generally follow the interpretation of the laws of a state by its highest deciding court except where the interpretation is inconsistent with fundamental principles of liberty and justice. See Ewing v. Winans, 749 F.2d 607, 609 (10th Cir.1984); Tyrrell v. Crouse, 422 F.2d 852, 853 (10th Cir.1970); see also Brown v. Ohio, 432 U.S. 161, 167, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977); Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 488, 96 S.Ct. 2308, 1312, 49 L.Ed.2d 1 (1976). 9 In this case, the Oklahoma Court of Criminal Appeals had the opportunity to review the constitutionality of the plea bargain on the merits. In summarily denying relief, the Court of Criminal Appeals determined that plea bargains are valid and are not in violation of Okla. Const. art. XXIII, Sec. 8. Because no fundamental principles of liberty or justice are involved, we conclude that plea bargains are valid in Oklahoma and are not in violation of Okla. Const. art. XXIII, Sec. 8. 10 The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED. 11 The mandate shall issue forthwith. * Honorable J. Thomas Greene, District Judge, United States District Court for the District of Utah, sitting by designation

352 F.Supp.2d 578 (2005) UNITED STATES v. EXTREME ASSOCIATES, INC., Robert Zicari, and Janet Romano, Defendants. Crim. No. 03-0203. United States District Court, W.D. Pennsylvania. January 20, 2005. *579 Stephen R. Kaufman, United States Attorney's Office, Pittsburgh, PA, for Plaintiff. Jennifer M. Kinsley, Sirkin, Pinales, Mezibov & Schwartz, H. Louis Sirkin, Cincinnati, OH, Warner Mariani, Pittsburgh, PA, for Defendants. MEMORANDUM LANCASTER, District Judge. This is a criminal prosecution charging nine counts of violating the federal obscenity statutes and one count of conspiracy based on that conduct. 18 U.S.C. §§ 371, 1461, 1462 and 1465. The United States has charged defendants Extreme Associates, Inc., Robert Zicari, and Janet Romano *580 with distribution of obscene material via the mails and the Internet. Defendants are in the business of producing and selling sexually explicit films. Defendants have filed a motion to dismiss the indictment arguing that the federal obscenity laws infringe on the rights of liberty and privacy guaranteed by the due process clause of the United States Constitution. [Doc. Nos. 14 and 15]. Because we find that the obscenity statutes are unconstitutional as applied to these defendants, defendants' motion to dismiss is granted. I. FACTUAL BACKGROUND A. Joint Stipulation of Facts The parties submitted the following "Joint Stipulation of Fact" prior to oral argument. Additional facts not in dispute will be discussed in this memorandum in context. Facts Regarding the Internet Generally: 1. The Internet is a decentralized, global medium of communication that links people, institutions, corporations, and governments around the world. It is a giant computer network that interconnects innumerable smaller groups of linked computer networks and individual computers. Although precise estimates are difficult to formulate due to its constant and rapid growth, the Internet is currently believed to connect more than 159 countries and close to 322 million users worldwide. 2. Because the Internet merely links together numerous individual computers and computer networks, no single entity or group of entities controls all of the material made available on the Internet or otherwise limits the ability of others to access such materials. The range of digital information available to Internet users — which includes text, images, sound and video — is individually created, maintained, controlled, and located on millions of separate individual computers around the world. Each content provider of a web site is responsible for its content. 3. The Internet presents extremely low entry barriers to anyone who wishes to provide or distribute information or gain access to it. The Internet provides an affordable means for communicating with, accessing, and posting content to a worldwide audience. 4. In the United States, individuals have several easy means of gaining access to computer communications systems in general and to the Internet in particular. Many educational institutions, businesses, local communities, and libraries maintain an easily accessible computer network which is linked directly to the Internet. Many of these entities restrict access to sexually explicit material. 5. Internet service providers ("ISPs") allow subscribers to access the Internet through the subscriber's personal computer by using a telephone modem, broadband, including a cable modem or digital subscriber line (DSL), and dedicated access, such as a T1 line. Most ISPs charge a monthly fee in the range of $15.00 to $50.00, but some provide their users with free or very low-cost Internet access. Every ISP has a Terms of Service Agreement with those customers that desire to host content, in the form of a web site, on the ISP's network. The Terms of Service Agreement may prohibit the individual or entity (customer) hosting a web site from posting certain material such as child pornography or sexually explicit content, on the ISP's network. Subscribers who do not host a web site, but utilize the ISP to access the Internet, also enter into a Terms of Service Agreement which may limit certain activities. 6. The World Wide Web is the most popular technology to access information on the Internet. Anyone with access to *581 the Internet and proper software can create webpages or home pages which may contain many different types of digital information — text, images, sound, and video. The web comprises millions of separate websites that display content provided by particular persons or organizations. Any Internet user anywhere in the world with the proper software can view webpages posted by others, read text, view images and video, and listen to sounds posted at these web sites. Internet users wishing to make content available to others must create the content and publish it on the Internet through an ISP. 7. The web serves in part as a global, online repository of knowledge, containing information from a diverse array of sources, which is easily accessible to Internet users around the world. Though information on the web is contained on individual computers, each of these computers is connected to the Internet through a web protocol, the hyper text transport protocol, that allows the information on the web to be accessible to web users. The content of some web sites is available to all users while other content may not be accessible without a method of access, such as a login code, chosen by the web site host. 8. To gain access to the information available on the web, a person generally uses a web "browser" — software such as Netscape Navigator or Internet Explorer — to display, print, and download documents that are formatted in the standard web formatting language. Each page on a web site has an address that allows users to find and retrieve it. 9. Most web documents also contain "links." These are short sections of text or images that refer and link to another document. Typically the linked text is blue or underlined when displayed; and when selected by the user on the user's computer screen, the referenced document is automatically displayed, wherever in the world it actually is stored. Links, for example, are used to lead from overview documents to more detailed documents on the same website, from tables of contents to particular pages, and from text to cross-references, footnotes, and other forms of information. 10. Links may also take the user from the original website to another website on a different computer connected to the Internet, a computer that may be located in a different area of the country, or even the world. Facts Regarding This Case During All Times Relevant to the Charges in this Case: 11. Extreme Associates, Inc. operated a website known as www.extremeassociates.com. The website was divided into two sections — one section which could be accessed by the general public without cost and one section for members only. The "members only" section required a payment of $89.95 for a three month period, renewable automatically. 12. To become a member of the Extreme Associate's website, an individual must have completed an on-line registration form which includes the following: 1) name; 2) address; and 3) credit card information. Once the form was completed, the potential member clicked the "submit" button. If Extreme Associates accepted the applicant as a member, it then provided a user name and password to the new member and billed his credit card every three months. 13. Once an individual was a member of the Extreme Associates website, he or she was permitted to access "members only" content from any computer worldwide. To do so, the member was only required to enter a username and password. Extreme Associates did not require the member to disclose the geographic location of the computer he or she was using. *582 Extreme Associates did not request entry of a geographic location from persons logging into the "members only" portion of its site. 14. The "members only" portion contained multiple webpages, or screens, which were comprised of various headings, photographs, text, and computerized images. Also available on the "members only" portion of the website were short video clips which ranged from less than one minute in length to several minutes in length. The hyperlinks to these video clips appeared on a webpage with various other content, including text and graphic design. 15. The video clips could be accessed by clicking on them with a mouse and viewing them with a video processing program, such as Real Time or Windows Media. Any video clips could be downloaded by the member and saved onto the member's personal computer, so that the member could view the video clip at any time without accessing the Extreme Associates website or even connecting to the Internet. 16. Some of the video clips that appeared on the Extreme Associates website were excerpts from full length videos produced, distributed, and/or sold by Extreme Associates; others were not. However, the web page containing the video clips did not reference any full length video, nor whether such videos were available on VHS or DVD. Where the video clip was in fact an excerpt from a full-length video, the full-length video was available for purchase on another page of the Extreme Associates website. 17. The defendants selected the length and chose the content of each video clip available on the "members only" portion of the Extreme Associates web site. 18. As part of the investigation of this case, United States Postal Inspector Joseph McGowan registered as a member of the Extreme Associates website. More specifically, on September 5, 2002, Postal Inspector McGowan subscribed to the Extreme Associates membership website. He did it in the following manner: He went to the extremeassociates.com website and clicked on to the member's registration. That brought him to the ccbill.com page. The page reflected ccbill.com letterhead and had "instant online access with your credit card." On this page, it asked for the following information: first name, last name, address, city, state, postal code, phone number, country, email address, credit card number, cvv2, expires, card type, name on card, subscription options, user name, password, and confirmation password. Inspector McGowan provided the following information: NAME: Kim Wallace ADDRESS: P.O. Box 97261 Pittsburgh, PA 15229 EMAIL ADDRESS: kwallball@hotmail.com CREDIT CARD NUMBER: 5424 1805 1478 2595 CVV2: 250 NAME ON CARD: Kim Wallace SUBSCRIPTION OPTIONS: In dropdown box 1 Selected 90 day at $89.95 USER NAME: WALLBALL PASSWORD: Pirates CONFIRMED PASSWORD: Pirates After he filled out the information pertaining to his credit card, it then brought him to the next page for ccbill.com: CREDIT CARD AND CHECK BILLING Account: XXXXXX-XXXX. www.extremeassociates.com Credit card online check — After checking "OK," the next page appeared which read, "Before Continuing, Please Make Sure the Following Information is Correct." USAGE OF INVALID ADDRESSES *583 OR PHONE NUMBERS MAY RESULT IN A REJECTION OR A CANCELLATION. PLEASE USE ACCURATE INFORMATION. Your IP address (209.195.149.28) is recorded with this transaction. Fraudulent transactions will be investigated. Credit Card Number: 5424 1805 1478 2595 Expires: 08/2004 Name: Kim Wallace Address: P.O. Box 97261 Pittsburgh, PA 15229 US-United States. You may cancel your membership automatically at any time by clicking the Customer Support button located on the bottom of the sign up form. Your card will be billed $89.95 for a 90 day membership and automatically renewed for $89.95 every 90 days thereafter for your convenience. Hit "back" on your browser to correct errors, or Click the button below if the info is correct. Postal Inspector McGowan clicked on the "information is correct" button and continued to the next page. He was then able to access Extreme Associates "Club Extreme." 19. Postal Inspector McGowan received an instant message on September 5, 2002 from support@ccbill.com to kwallball@hotmail.com, with subject, subscription number XXXXXXXXXX. Underneath the Subject Line is www.extremeassociates.com: Welcome. Thank you for your purchase at www.extremeassociates.com. Your card has been billed as CCBILL Ltd. for the amount of 89.95. Your subscription number is 913589-0000-1029955162. Please include this number in all correspondence. Your User Name is — wallball Your Password is — pirates If you selected an automatically rebilled option your subscription will automatically be renewed for your convenience until you cancel. Your next billing amount will be 89.95 on 12/O5/2002. Please save this receipt while your subscription is in effect. You may see your billing status, renewal dates and look up your password if you lose it by visiting — http://www.extremeassociates.com/ccbill/. You may also cancel your subscription or email us at these links: http://www.extremeassociates.com/ccbill http://www.ccbill.com/system/support.cgi support@ccbill.com FOR PROMPT SERVICE PLEASE INCLUDE YOUR SUBSCRIPTION NUMBER IN ALL CORRESPONDENCE. Your subscription number is XXXXXXXXXX. Billing services provided by CCBILL Ltd. billing@ccbill.com. 20. The address provided by Inspector McGowan is located within the Western District of Pennsylvania. Inspector McGowan and/or his fellow postal inspectors viewed the "members only" content available on the website during the course of their investigation. The "members only" content was accessed each time from a personal computer located in the Western District of Pennsylvania. 21. Within the "members only" portion of the website, Inspector McGowan and/or his fellow postal inspectors viewed video clips available on the Extreme Associates website. These clips included the following: 1) valeriejospit.wmv, a 2 minute 54 second video clip; 2)jewel.mpeg, a 37 second video clip; 3) PZSummerBreeze.mpeg, a 1 minute 49 second video clip; 4) dp-gangbang7-genX.mpeg, a 1 minute 16 second video clip; 5) miacum.mpeg, a 1 minute 21 second video clip; and 6) analasspirationsl.mpeg, a 58 second video clip. The *584 video clips were located within the following areas of the "members only" portion of the Extreme Associates web site: The Piss Zone "valeriejospit.wmv" "jewel.mpeg" "PZSummerBreeze.mpeg" Double Penetration "dp-gangbang7-genX.mpeg" The Ex-Factor "miacum.mpeg" "analasspirationsl.mpeg" Additional content was available within each of the above listed areas of the "members only" portion of the website. 22. The video clips listed in the preceding paragraph are referenced in counts 5 through 10 of the indictment. 23. The video clips viewed by Inspector McGowan on the Extreme Associates website can only be accessed, in the first instance, by an internet accessible device. B. Procedural Background of Case On August 6, 2003, a federal grand jury returned a ten count indictment against Extreme Associates, Inc., Robert Zicari and Janet Romano. Defendants are accused of violating the federal obscenity statutes, 18 U.S.C. §§ 1461, 1462 and 1465, by distributing, either through the mail or over the Internet, certain motion pictures that are allegedly obscene. The federal obscenity statutes, 18 U.S.C. §§ 1461, 1462, 1465, proscribe the use of the mails, express delivery services or interactive computer services for the transportation or delivery of obscene material. Section 1461 states: Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance ... [i]s declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever knowingly uses the mails for the ... delivery of anything declared by this section ... to be nonmailable ... shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter. 18 U.S.C. § 1461. Section 1462 states: Whoever brings into the United States ... or knowingly uses any express company or other common carrier or interactive computer service ... for carriage in interstate or foreign commerce — (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or (b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound ... or [w]hoever knowingly takes or receives, from such express company or other common carrier or interactive computer service ... any matter or thing the carriage or importation of which is herein made unlawful — [s]hall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter. 18 U.S.C. § 1462. Section 1465 states: Whoever knowingly transports or travels in, or uses a facility or means of, interstate or foreign commerce or an interactive computer service ... in or affecting such commerce for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical *585 transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both ... 18 U.S.C. § 1465. Counts two through four of the indictment are based on defendants' mailing of three video tapes to an undercover United States postal inspector in Pittsburgh. The inspector ordered those video tapes from defendants via their website. Counts five through ten are based on defendants' delivery of video clips over the Internet to that same undercover postal inspector. The inspector requested these particular clips after purchasing a monthly membership to the limited-access, members-only section of Extreme Associates' website. Count one is a conspiracy charge based on the above conduct. All counts are felonies and carry with them possible penalties of imprisonment for up to five years and various fines. Defendants have pled not guilty to all charges. On October 9, 2003, defendants filed a motion to dismiss. After briefing the motion to dismiss, the court set oral argument for September 10, 2004. The parties twice requested that this date be rescheduled. Oral argument was heard on November 1, 2004. Immediately following oral argument, the government informed the court that it was not prepared to argue the issue of whether the strict scrutiny test applied in this case and, if so, what the compelling state interest justifying the federal obscenity statutes was. Therefore, the government asked for the opportunity to file an additional brief. Defense counsel made no objection, and the parties were given forty-five days in which to brief that limited issue. All submissions have now been made and considered by the court. Defendants do not dispute, for purposes of this motion, that the films involved in this case are obscene within the meaning of sections 1461, 1462 and 1465 and as that term is defined in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). II. STANDARD OF REVIEW Defendants have moved to dismiss the indictment on the ground that the federal obscenity statutes infringe on the constitutional guarantees of liberty and privacy secured by the due process clause. Where a statute is deemed unconstitutional, an indictment based thereon must be dismissed. See e.g. United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Courts use one of two tests to assess the constitutionality of statutes that are faced with a substantive due process challenge: the strict scrutiny test or the rational basis test. Therefore, we must first determine which test should be applied in this case. Where a law restricts the exercise of a fundamental right, we apply the strict scrutiny test. Lawrence v. Texas, 539 U.S. 558, 593, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (Scalia, J., dissenting) (citing Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)); Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (citations omitted); Alexander v. Whitman, 114 F.3d 1392, 1403 (3d Cir.1997). Under the strict scrutiny test, a statute withstands a substantive due process challenge only if the state identifies a compelling state interest that is advanced by a statute that is narrowly drawn to serve that interest in the least restrictive way possible. Id. In other words, even if the government has a state interest that rises to the level of being compelling, if there is a less restrictive *586 way to advance it, the statute fails this test. Where it is not a fundamental right that is restricted, we apply the rational basis test. Lawrence, 539 U.S. at 593, 123 S.Ct. 2472; Glucksberg, 521 U.S. at 767 n. 9, 117 S.Ct. 2258 (Souter, J., concurring); Alexander, 114 F.3d at 1403. Under the rational basis test, a statute withstands a substantive due process challenge if the government identifies a legitimate state interest that the legislature could reasonably conclude was served by the statute. Alexander, 114 F.3d at 1403 (citing Sammon v. New Jersey Board of Medical Examiners, 66 F.3d 639, 645 (3d Cir.1995)); see also Lawrence, 539 U.S. at 593, 123 S.Ct. 2472. It is not enough under the rational basis test, however, for the government to simply announce some theoretical and noble purpose behind the statute. Rather, the statute must reasonably advance that purpose in order for the statute to survive even this deferential test. See Reno v. Flores, 507 U.S. 292, 319, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). III. DISCUSSION A. Defendants' Contentions Defendants contend that the federal obscenity statutes are unconstitutional because they infringe on the fundamental rights of liberty and privacy guaranteed by the United States Constitution. Specifically, defendants contend that there is a broad fundamental right to sexual privacy, which encompasses a right to possess and view sexually explicit material in the privacy of one's own home. Defendants argue that this right is not diminished by the fact that the material viewed is without literary or artistic merit or inspires lewd or lascivious thoughts in the mind of the viewer. Defendants contend that this right arises from the holdings in two Supreme Court cases: Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) and Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Defendants further argue that because the federal obscenity laws place a complete ban on the distribution of materials that an individual has the fundamental right to possess and view in private, the statutes should be subjected to the strict scrutiny test. Finally, defendants contend that the federal obscenity statutes fail both the strict scrutiny test and the rational basis test because, after Lawrence, the government can no longer justify legislation with enforcement of a "moral code." B. The Government's Contentions The government contends that because the federal obscenity statutes have withstood constitutional attack for more than thirty-five years, this court lacks the authority to find that they are unconstitutional. On the merits, the government argues that there is no fundamental right involved in this case and that this court should not create a "new" fundamental right to commercially distribute obscene material. According to the government, the Supreme Court did not subject Texas' sodomy law to the strict scrutiny test in Lawrence, and therefore, there is no basis to subject the federal obscenity statutes to that exacting level of constitutional scrutiny. Instead, the government argues that the rational basis test should be applied, and that under that test, legitimate governmental interests justify the law. C. The Court's Ruling Because we find that the federal obscenity statutes place a burden on the exercise of the fundamental rights of liberty, privacy and speech recognized by the Supreme Court in Stanley v. Georgia, we have applied the strict scrutiny test. We find that the federal obscenity statutes do not survive the strict scrutiny test *587 as applied to the circumstances of this case. First, we find that after Lawrence, the government can no longer rely on the advancement of a moral code i.e., preventing consenting adults from entertaining lewd or lascivious thoughts, as a legitimate, let alone a compelling, state interest. Second, we find that, as applied to the particular circumstances of this case, the laws are not narrowly drawn to advance the government's two asserted interests: 1) protecting minors from exposure to obscene materials; and 2) protecting unwitting adults from inadvertent exposure to obscene materials. As such, we find that as applied to this case, the federal obscenity statutes violate the constitutional guarantees of personal liberty and privacy of consenting adults who wish to view defendants' films in private. Accordingly, the indictment will be dismissed. D. Standing As an initial matter, although not raised by the parties, we address the issue of standing. According to defendants, the federal obscenity statutes are unconstitutional because they infringe on an individual's fundamental right of liberty to engage in private, consensual sexual activity — such as possessing and viewing obscene materials — in the privacy of his own home. Defendants, however, are not before us as persons indicted for their private sexual conduct, or their private viewing habits. Rather, they are being prosecuted as vendors of sexually obscene materials. As such, we will address the question of defendants' standing to mount this constitutional defense. The Supreme Court has consistently found that vendors have the ability to challenge the constitutionality of a statute on their customers' behalf where such statutes are addressed directly to the activity of the vendors. In the seminal case of Craig v. Boren, a seller of beer was deemed to have standing to argue that a state statute prohibiting the sale of beer to men, but not women, of a certain age violated its customers' equal protection rights. Craig v. Boren, 429 U.S. 190, 192-97, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Similarly, the Supreme Court found in Carey v. Population Services International, that defendant, a mail-order retail business engaged in the sale of non-medical contraceptives, had standing to assert that a state law prohibiting the distribution of non-medical contraceptives by anyone other than a licensed pharmacist violated its customers' substantive due process right to use such devices. Carey v. Population Services International, 431 U.S. 678, 682-84, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). In so holding, the Court stated that "PPA is among the `vendors and those in like positions (who) have been uniformly permitted to resist efforts at restricting their operations by acting as advocates for the rights of third parties who seek access to their market ...'" Id. at 684, 97 S.Ct. 2010; see also Williams v. Attorney General of Ala., 378 F.3d 1232, 1234 n. 3 (11th Cir.2004) (vendors of sexual toys/devices have standing to challenge constitutionality of state statute prohibiting commercial distribution of such devices). The fact that defendants have raised this challenge in the context of a criminal case does not change the result. In Carey, the Supreme Court rejected an argument that defendant could not raise its constitutional challenge to the statute until after it had been criminally prosecuted under the statute. Finding that defendant had been twice cited for violations of the law, and had been explicitly threatened with criminal prosecution, the Supreme Court allowed PPA's challenge to the statute to move forward without awaiting criminal prosecution. Carey, 431 U.S. at 682-83, 97 S.Ct. 2010; see also Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (allowing doctors who *588 had been prosecuted for aiding and abetting the violation of a state statute prohibiting the use of contraceptives to challenge the constitutionality of that law). Defendants have already been prosecuted under the federal obscenity statutes. Their challenge to the laws is ripe. Under well-established Supreme Court precedent, they have standing to assert that the federal obscenity statutes are unconstitutional because they place a burden on their customers' substantive due process rights to liberty and privacy. E. Substantive Due Process and the "The Right to Privacy" The Supreme Court has recognized that one aspect of the liberty mentioned in the Due Process Clause of the Fifth Amendment is a "right of personal privacy". Roe v. Wade, 410 U.S. at 152, 93 S.Ct. 705. It was this "zone of privacy" that formed the basis of the Supreme Court's decision striking down a state law that prohibited the use of contraceptives. Griswold v. Connecticut, 381 U.S. 479, 485-86, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The Supreme Court found that the statute was unconstitutional because it invaded the area of protected privacy surrounding the marital relationship. Id. Both before and after that decision, the Supreme Court has used the substantive due process right of privacy to strike down laws restricting the right to marry, the right to have children, the right to direct the education and upbringing of one's children, the right to use contraception, the right to have an abortion, and the right to refuse unwanted lifesaving medical treatment. See Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); Cruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). F. Obscenity Case Law 1. Stanley v. Georgia In 1957 the Supreme Court announced that "obscenity is not within the area of constitutionally protected speech" under the First Amendment. Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Twelve years later, however, the Supreme Court held that a state could not make the mere private possession of obscene material in one's home a crime. Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). In doing so, the Court did not hold that obscene material had become protected speech. Rather, the Court recognized that freedom of speech goes beyond self-expression and includes the fundamental right to "receive information and ideas regardless of their social worth." Id. at 564, 89 S.Ct. 1243; see also Griswold v. Connecticut, 381 U.S. at 482, 85 S.Ct. 1678 ("The right to freedom of speech ... includes not only the right to utter or to print, but the right to ... receive, the right to read and freedom of ... thought"). The Supreme Court also determined that the Georgia statute, which criminalized the mere private possession of obscene material, raised a privacy issue as well. The Court stated, "[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." Id. at 565, 89 S.Ct. 1243. To permit the *589 government to do so would support the "... assertion that the State has the right to control the moral content of a person's thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment." Id. at 565-66, 89 S.Ct. 1243. Moreover, the Supreme Court explicitly found that this right to read or observe or think about what one pleases in his own home was "fundamental to our scheme of individual liberty." Id. at 568, 89 S.Ct. 1243. Although the Georgia statute in Stanley prohibited possessing material of a sexually explicit nature, the analysis and result would have been the same had the Georgia statute criminalized the possession of Communist tract literature, or racist hate literature, or a copy of George Orwell's 1984, or any other material the government deemed inappropriate for citizens to learn or think about. Therefore, Stanley represents a unique intersection between the substantive due process clause's protection of personal liberty and privacy and the First Amendment's protection of an individual's right to receive, and consider, information and ideas. 2. Post-Stanley Obscenity Case Law The government correctly notes that after Stanley established the right to privately possess obscenity in one's home, the Supreme Court repeatedly refused to recognize a correlative First Amendment right to distribute such material. See United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971) (holding that there is no First Amendment right to distribute obscene material); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971) (holding that there is no "First Amendment right to do business in obscenity and use the mails in the process"); United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) (same); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) (holding that Stanley's right to private possession of obscene material does not give rise to an independent First Amendment right to transport such materials in interstate commerce). Each holding, however, was based on the settled rule established in Roth that obscenity is not protected speech under the First Amendment. The motion in this case, however, does not raise a First Amendment challenge to the federal obscenity statutes; it raises a substantive due process challenge. The fact that the obscenity statutes have been upheld under one constitutional provision does not mean that they are immune from all constitutional attack. See e.g. Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (statute did not violate the Equal Protection Clause, but did violate the First Amendment); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 383-84, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (finding that the fact that obscenity is not protected speech under the First Amendment does not mean that it is "entirely invisible to the Constitution"). Apart from the fact that the holding in each of these cases was based on the First Amendment, these cases are also distinguishable on their facts. In Orito the Court engaged in a rational basis analysis and held that the obscenity statutes could be justified as a method of protecting the public morality, a justification no longer valid after Lawrence. Orito, 413 U.S. at 143-44, 93 S.Ct. 2674 (obscenity laws are a way to prevent the spreading of "evil" of a "moral nature"). Furthermore, Thirty-Seven Photographs and 12 200-Ft. Reels dealt additionally with the government's special need to impose regulations at its borders regarding customs and imports. Thirty-Seven Photographs, 402 U.S. at 376-77, 91 S.Ct. 1400 (finding that obscenity is not protected speech and Congress *590 may declare it to be contraband and prohibit its importation); 12 200-Ft. Reels, 413 U.S. at 125, 93 S.Ct. 2665 (stating that "[i]mport restrictions and searches of persons or packages at the national borders rest on different considerations and different rules of constitutional law from domestic regulations"). Neither the Supreme Court nor the Court of Appeals for the Third Circuit has considered a substantive due process challenge to the federal obscenity statutes by a vendor arguing that the laws place an unconstitutional burden, in the form of a complete ban on distribution, on an individual's fundamental right to possess and view what he pleases in his own home, as established in Stanley. Therefore, contrary to the government's position, defendants' challenge is not precluded by Roth, Reidel, Thirty-Seven Photographs, Orito, and 200-Ft. Reels, but is instead guided by cases such as Stanley, Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas. G. Lawrence v. Texas Recently, in a much publicized and analyzed case, the Supreme Court relied on a substantive due process analysis to strike down Texas' homosexual sodomy law. Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). The decision opens with the Court's declaration that "[l]iberty protects the person from unwarranted government intrusions into a dwelling or other private places." Id. at 562, 123 S.Ct. 2472. After a discussion of Griswold, Eisenstadt, Roe v. Wade and other right of privacy cases, the Supreme Court found that a person's decisions about what personal relationships, including homosexual relationships, he will have in his own home are not to be controlled or criminalized by the government because the government finds such relationships to be immoral. Id. at 564-66, 578-79, 123 S.Ct. 2472. Instead, the Court deemed such decisions to lie within a "realm of personal liberty which the government may not enter." Id. at 578, 123 S.Ct. 2472 (citing Casey, 505 U.S. at 847, 112 S.Ct. 2791). Because the case involved two consenting adults engaged in sexual activity in the privacy of their own home and not minors, persons who might be coerced or injured, public conduct, or prostitution, the Court found that no state interest — including promoting a moral code — could justify the law's intrusion into the personal and private life of the individuals involved. Id. at 578, 123 S.Ct. 2472. In a dissenting opinion joined by Chief Justice Rehnquist and Justice Thomas, Justice Scalia opined that the holding in Lawrence calls into question the constitutionality of the nation's obscenity laws, among many other laws based on the state's desire to establish a "moral code" of conduct. Lawrence, 539 U.S. at 590, 123 S.Ct. 2472 (Scalia, J., dissenting). It is reasonable to assume that these three members of the Court came to this conclusion only after reflection and that the opinion was not merely a result of over-reactive hyperbole by those on the losing side of the argument. In any event, there are other constitutional scholars who have reached the same conclusion, i.e., that the nation's obscenity laws cannot stand in light of Lawrence. Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" that Dare not Speak its Name, 117 HARV. L. REV. 1893, 1945 (2004); (stating that "... the Court's holding in Lawrence is hard to reconcile with retaining the state's authority to ban the distribution to adults of sexually explicit materials identified by, among other things, their supposed appeal to what those in power regard as `unhealthy' lust, or the state's power to punish adults for enjoying such materials in private, whether *591 alone or in the company of other adults"); James W. Paulsen, The Significance of Lawrence, 41 HOUS. LAW. 32, 37 (2004) (stating that, "[a]fter Lawrence, any law that can be justified only because `most people think that sort of thing is immoral' may be in constitutional trouble"); Calvin Massey, The New Formalism: Requiem for Tiered Scrutiny, 6 U. Pa. J. Const. L. 945, 964-65 (2004) (noting that obscenity laws will be void under Lawrence if the decision stands for the idea that moral disapproval is insufficient justification to infringe upon an individual's liberty); Mark Cenite, Federalizing or Eliminating Online Obscenity Law as an Alternative to Contemporary Community Standards, 9 Comm. L. & Pol'y 25, 25 (2004) (stating that First Amendment principles favoring autonomy and the Lawrence decision "... point toward elimination of obscenity law entirely"); see also Gary D. Allison, Sanctioning Sodomy: The Supreme Court Liberates Gay Sex and Limits State Power to Vindicate the Moral Sentiments of the People, 39 Tulsa L. Rev. 95, 145-48 (2003) (noting Justice Scalia's prediction, but stating that Lawrence will not serve as the basis to invalidate all "morality" laws; however, upon application of the decision to the area of obscenity laws, the author concludes that after Lawrence the government could only proscribe child pornography due to the independent governmental interest in protecting the children involved in its production). Despite defendants' urging, we do not find that Lawrence created a "new" and/or "broad" fundamental right to engage in private sexual conduct. Although the Lawrence opinion is mixed, certain language suggests that the Court engaged in a rational basis review of the challenged statute. In that light, it is reasonable to find that the court itself did not consider it was addressing a fundamental right. However, that lack of clarity in Lawrence need not be resolved here because we are analyzing the burden that the obscenity laws place on the fundamental rights of privacy and speech of the viewer, which have already been explicitly established in Stanley v. Georgia. The Lawrence decision, however, is nevertheless important to this case. It can be reasonably interpreted as holding that public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual, sexual conduct even if that conduct is deemed offensive to the general public's sense of morality. Such is the import of Lawrence to our decision. H. Substantive Due Process Analysis A court may hold a statute unconstitutional either because it is invalid "on its face" or because it is unconstitutional "as applied" to a particular set of circumstances. Ada v. Guam Soc'y of Obstetricians and Gynecologists, 506 U.S. 1011, 1012, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting). If a statute is unconstitutional as applied, the government may continue to enforce the statute in different circumstances under which it is not unconstitutional. If a statute is unconstitutional on its face, the government may not enforce the statute under any circumstances. A challenger's argument in an as-applied challenge is different from that in a facial challenge. In an as-applied challenge, "the [challenger] contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional." Id. Therefore, the constitutional inquiry in an as-applied challenge is limited to the challenger's particular situation. For the reasons that follow, we have considered defendants' challenge to the obscenity statutes to be an as-applied challenge. Under those standards, we find *592 that the obscenity statutes are unconstitutional as applied to the defendants' conduct in this case. In Stanley, the Supreme Court explicitly stated that the right to read, observe, or think about what one pleases in his own home, including obscene material, is "fundamental to our scheme of individual liberty." Stanley, 394 U.S. at 568, 89 S.Ct. 1243. That principle of law is not in dispute. Nor has it been disputed by the government that this right is burdened by the federal obscenity statutes, which criminalize the distribution of such material. Thus, the statutes are properly subjected to the strict scrutiny test. Lawrence v. Texas, 539 U.S. 558, 593, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (Scalia, J., dissenting) (citing Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)); Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (citations omitted); Alexander v. Whitman, 114 F.3d 1392, 1403 (3d Cir.1997). The statutes do not survive that level of exacting constitutional scrutiny as applied to the facts of this case. Although the government requested and was granted more time to brief the limited issue of the application of the strict scrutiny test to this case, it has failed to identify a compelling state interest justifying the total ban on distribution of obscene material, even in the form of an "in the alternative" argument. Instead, the government states that the rational basis test should be applied, and that under that test, the dual legitimate state interests of: 1) protecting children from viewing obscene materials; and, 2) protecting unwitting adults from inadvertent exposure to obscene materials, justify a complete ban on its distribution. A fair reading of the government's brief leads to the conclusion that the government approached this case by focusing on whether the courts have recognized, or should recognize, a fundamental right to commercially distribute obscene material, which is not the issue in this case. As stated above, the issue in this case is whether the federal obscenity statutes place a sustainable burden on an individual's fundamental right, as clearly established in Stanley, to read, view, or think what one wants to in the privacy of his own home. Although we could assume that the government concedes that no compelling interest justifies the federal obscenity laws and end our analysis there, we will give the government the benefit of the doubt and analyze its asserted "legitimate" state interests under the strict scrutiny test. The government has identified two state interests in this case: 1) the protection of unwitting adults from exposure to obscene materials; and 2) the protection of children from exposure to obscene materials. a. Protection of Unwitting Adults It cannot be seriously disputed that, historically, the government's purpose in completely banning the distribution of sexually explicit obscene material, including to consenting adults, was to uphold the community sense of morality.[1] That is, to prevent, to the extent possible, individuals from entertaining lewd or lustful thoughts stimulated by viewing material that appeals to one's[2] prurient interests. Harboring *593 such thoughts, the government deems, is immoral conduct even when done by consenting adults in private. Indeed, one of, if not the, principle underpinning of Roth v. U.S., in which the Supreme Court held that obscenity is not within the area of constitutionally protected speech, was the Court's unquestioned assumption that such material offends the community sense of morality. Roth, 354 U.S. at 485, 77 S.Ct. 1304 ("... any benefit that may be derived from [lewd and obscene material] is clearly outweighed by the social interest in order and morality"). After Lawrence, however, upholding the public sense of morality is not even a legitimate state interest that can justify infringing one's liberty interest to engage in consensual sexual conduct in private. Lawrence, 539 U.S. at 578-79, 123 S.Ct. 2472. Therefore, this historically asserted state interest certainly cannot rise to the level of a compelling interest, as is required under the strict scrutiny test. Even if the government's asserted interest in keeping unwitting adults from inadvertently viewing this material could rise to the level of being a compelling state interest, the obscenity laws, as applied to these defendants, are not narrowly tailored to advance that interest. As such, they would nevertheless fail the strict scrutiny test. Access to the video clips for which defendants are being prosecuted is limited to those people who: 1) access defendants' website; 2) join the members-only section of defendants' website, which requires a name and address; 3) pay a membership fee, which requires a credit card; 4) are issued a password; 5) use the password to gain access to the obscene material; and, finally, 6) either view or download the material that they wish to view on a computer. See Joint Stipulation of Facts, ¶¶ 11-19. Similarly, the video tapes for which defendants are being prosecuted in this case could only be accessed by an individual who: 1) accessed defendants' website; 2) reviewed the inventory of videos that were for sale; 3) selected a title to order; 4) inputted personal information, such as a name and an address; 5) submitted credit card information for payment; and 6) executed an order. Therefore, due to the Internet access technology used by these defendants to distribute the video tapes and video clips charged in this case, the interest of protecting unwitting adults from inadvertent exposure to their material is not advanced at all, let alone by the least restrictive means possible. That is, defendants' mechanism of distributing the materials charged in this case dictate that only those individuals who want to see defendants' films, indeed, want to see them badly enough that they are willing to pay to see them, are able to do so. Therefore, even if the asserted interest of protecting unwitting adults from inadvertent exposure to the offensive material were found to be a compelling one, a total ban is clearly not the least restrictive means of achieving that goal. In fact, defendants themselves have accomplished the goal of keeping the video tapes and video clips away from unwitting adults by the restrictive method they utilize to allow access to their material. Therefore, because of the manner in which the charged video tapes and video clips are accessed, the federal obscenity statutes, as applied to these defendants, cannot withstand analysis under the strict scrutiny test. We are not persuaded by the government's argument that a total ban is necessary because, even if the material is initially received for private use, it might later be distributed for viewing other than in private. First, the government can create laws that punish those who distribute obscene material to be viewed other than in *594 private. Second, there are many activities that the law recognizes a person may constitutionally engage in in his home that could be made criminal if done in public. For instance, a person is free to drink alcohol to the point of inebriation in his home, but could be cited for public intoxication if he left the house. 18 Pa. Cons.Stat. § 5505. A person can possess a firearm without a license in his home, but could be cited for carrying that same item in public. 18 Pa. Cons.Stat. § 6106. A person can walk around naked in his home, but could be cited for public indecency if he left his house in that condition. 18 Pa. Cons.Stat. § 5901. The federal obscenity statutes are not sustainable under the strict scrutiny test on the ground that they advance the state interest of protecting unwitting adults from exposure to obscene materials. First, that interest is grounded in the advancement of the public morality, which is no longer a legitimate, let alone compelling, state interest. Second, even if the asserted state interest were compelling, that interest is not advanced, by the least restrictive means or otherwise, on the facts of this case, due to the technology and methods used by defendants to restrict access to the video tapes and video clips with which they are charged with distributing. b. Protection of Minors Finally, the government asserts that protecting minors from exposure to obscene material is a governmental interest justifying a total ban on its distribution. We find that even if this interest qualifies as a compelling one, as applied to this case, the federal obscenity statutes are not narrowly drawn to serve that interest. As a general rule, the Supreme Court has not allowed the fact that a determined minor might access inappropriate materials to justify a complete ban on their distribution, thus reducing the adult population to only what is fit for children. Denver Area Educ. Telecommunications Consortium, Inc. v. Federal Comm. Comm'n, 518 U.S. 727, 759, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (citations omitted); see also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 814, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ("the objective of shielding children does not suffice to support a blanket ban if the protection can be obtained by a less restrictive alternative"). Rather, along with such appropriate restrictions imposed by the government, such as age requirements, parents are expected to control their children's access to inappropriate items, such as alcohol, tobacco, firearms, and sexually explicit movies. As the Supreme Court recognized in Ashcroft v. American Civil Liberties Union, a total ban on the distribution of materials cannot be justified on the assumption that parental supervision of their minor children's activities is an ineffective means of protecting minors from viewing inappropriate material. Ashcroft v. American Civil Liberties Union, ___ U.S. ___, 124 S.Ct. 2783, 2793, 159 L.Ed.2d 690 (2004) (citing Playboy, 529 U.S. at 824, 120 S.Ct. 1878). In addition to this case law, upon application of the strict scrutiny test to the facts of this case, a complete ban on the distribution of obscene materials for the purpose of keeping them out of the hands of minors is not the least restrictive means of achieving that goal. There are numerous ways to protect minors from exposure to obscene materials that are less restrictive than a complete ban on the distribution of such material to consenting adults. Access by minors can be limited by regulations that direct when, where and how obscene materials can be displayed commercially and sold. For instance, exposure to minors could be controlled by *595 establishing age limits, as is done with innumerable other products in the marketplace that are deemed inappropriate for minors, such as alcohol, tobacco, and firearms. In addition, computer software is available that parents, or other supervising adults, can install on their computers that would effectively filter sexually explicit material when minors are surfing the Internet. This software allows the adult user to disable the filtering device when the computer is being used by an adult, if desired. Such software was recognized as an effective means of shielding minors from exposure to inappropriate material by the Supreme Court in United States v. American Library Ass'n, Inc., 539 U.S. 194, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003). In that case, the Supreme Court upheld, against a First Amendment challenge, the Children's Internet Protection Act, which provided that a public library may not receive federal assistance to provide Internet access unless it installed filtering software to block obscene or pornographic images from access by minors. The Court noted that the library had the ability to easily disable the filter upon the request of an adult patron who wished to view material inappropriate for minors, thereby making the restriction constitutional. Id. at 214, 123 S.Ct. 2297 (Kennedy, J., concurring). Finally, as was required by these defendants, prepayment with credit cards is another effective way to restrict access to inappropriate materials by minors. Significantly, the Federal Communications Commission has already determined that requiring prepayment by credit card effectively restricts minors' access to live "dial-a-porn" messages. The Commission reasoned that because credit cards are not routinely issued to minors,[3] services which require credit card payment are usually limited to adults. The Commission assumed that minors who are issued credits cards in their own names, such as those who are issued a supplementary card to a parent's account, are supervised by adults as to their use of the cards. FCC Enforcement of Prohibitions Against the Use of Common Carriers for the Transmission of Obscene Materials, 50 Fed.Reg. 42,699-01 (Oct. 22, 1985). As has been detailed above, on the facts of this case, defendants themselves have restricted access to the charged materials by minors by requiring that credit card information be entered before viewing the video clips, or ordering the video tapes. Assuming that protecting minors from exposure to obscene materials is a compelling interest, the federal obscenity statutes, which completely ban the distribution of all such material, including to consenting adults, are not narrowly drawn to advance that interest. Specifically, as applied to the facts of this case, over and above parental supervision, there is software conveniently available to restrict minors' access to sexually explicit materials. In addition, defendants have, in fact, effectively restricted access by minors by requiring credit card information before the materials are accessible, either physically or electronically. Therefore, the federal obscenity statutes, as applied to defendants, do not survive the strict scrutiny test. IV. CONCLUSION We find that the federal obscenity statutes burden an individual's fundamental *596 right to possess, read, observe, and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials. As such, we have applied the strict scrutiny test to those statutes. The federal obscenity statutes fail the strict scrutiny test because they are not narrowly drawn to advance the asserted governmental interests of protecting minors and unwitting adults from exposure to obscene materials, as applied to these defendants and the facts of this case. Because the federal obscenity statutes are unconstitutional as applied, defendants' indictment must be dismissed. An appropriate order follows. ORDER Therefore, this ____ day of January, 2005, IT IS HEREBY ORDERED that Defendants' Motions to Dismiss the Indictment [Doc. Nos. 14 and 15] are GRANTED. NOTES [1] The government admitted as much when it advanced as its compelling interest at oral argument "prohibiting the proliferation of obscenity in the community." [2] The court's use of the word "one's" is an understatement of great proportion. The pornography industry in the United States is estimated annually to be between $10 billion and $14 billion; generating more revenue than professional football, basketball and baseball put together, more than Hollywood's domestic box office receipts and larger than all the revenues generated by rock and country music recordings. Allison, supra at 148. [3] A review of the websites of the major credit card issuers such as Master Card, Visa, American Express and Discover, shows that all require that applicants be at least 18 years of age before being issued a credit card. See mastercard.com, usa.visa.com, discovercard.com, and americanexpress.com.

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-198V Filed: October 11, 2017 UNPUBLISHED ALICE ODOM, Special Processing Unit (SPU); Petitioner, Attorneys’ Fees and Costs v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Mary Coffey, Coffey & Nichols, LLC, St. Louis, MO, for petitioner. Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS 1 Dorsey, Chief Special Master: On February 10, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine Act”). Petitioner alleged that she suffered a shoulder injury related to vaccine administration (“SIRVA”) following her October 3, 2015 influenza (“flu”) vaccination. On August 28, 2017, the undersigned issued a decision awarding compensation to petitioner based on respondent’s proffer. (ECF No. 18.) On September 27, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 22.) Petitioner requests attorneys’ fees in the amount of $6,130.00 and attorneys’ costs in the amount of $948.78. (ECF No. 22-2 at 2.) In accordance with 1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner 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, the undersigned agrees that the identified material fits within this definition, the undersigned 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 (2012). General Order #9, petitioner's counsel represents that petitioner incurred no out-of- pocket expenses. Thus, the total amount requested is $7,078.78. On September 28, 2017, respondent filed a response stating respondent has no objection to petitioner’s motion. (ECF No. 23.) Respondent cautions, however, that his lack of objection “should not be construed as admission, concession, or waiver as to the hourly rates requested, the number of hours billed, or the other litigation related costs.” Id. The undersigned has reviewed the billing records submitted with petitioner’s request. In the undersigned’s experience, the request appears reasonable, and the undersigned finds no cause to reduce the requested hours or rates. The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). Based on the reasonableness of petitioner’s request and the lack of opposition from respondent, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs. Accordingly, the undersigned awards the total of $7,078.78 3 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel Mary Coffey, Esq. The clerk of the court shall enter judgment in accordance herewith. 4 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master 3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.1991). 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 

450 So.2d 99 (1984) Ex parte James W. HARRINGTON, Jr. In re Margaret E. HARRINGTON v. James W. HARRINGTON, Jr. 83-28. Supreme Court of Alabama. April 6, 1984. George P. Howard and G. Houston Howard, II of Howard, Dunn & Howard, and Robert B. Reneau of Reneau & Reneau, Wetumpka, for petitioner. Charles H. Volz, Jr. of Volz, Capouano, Wampold & Sansone, Montgomery, for respondent. ADAMS, Justice. Margaret E. Harrington filed a tort action against her husband James W. Harrington for $5,000,000.00 in the Circuit Court of Montgomery County on June 22, 1983. However, on April 14, 1983, Margaret Harrington had filed a divorce action in the Circuit Court of Elmore County, in which she alleged that: On or about, to-wit, February 4, 1983, James W. Harrington, Jr., the Husband, willfully and wantonly attacked the Wife, shooting her with a gun, causing severe personal injury to her person, rendering her a paraplegic, permanently paralyzed from the waist of her body to her feet. She was caused to be hospitalized for a long period of time and caused to suffer excruciating and severe mental and physical pain and anguish and the prognosis is that she will be confined to a wheelchair for the rest of her natural life and be caused to incur extensive costs and expenses for care, maintenance and treatment. In her tort action, Margaret Harrington alleged: On or about, to-wit, the 4th day of February, at or near, to-wit, County Road 29 near Powell's Grocery in Elmore County, Alabama, the Defendant willfully *100 or wantonly shot the Plaintiff with a gun. As a proximate consequence of the Defendant's willful or wanton misconduct, the Plaintiff was caused to suffer the following injuries and damages: Plaintiff was seriously wounded and was caused to be hospitalized for a long period of time and has been permanently and severely injured and paralyzed from the waist down, she suffers severe pain and mental anguish and will continue to suffer severe pain and mental anguish and will be paralyzed for the rest of her natural life, she has been caused to incur large expenses for hospital, doctor and other medical treatment for her injuries, she has been permanently and severely injured and paralyzed and is unable to enjoy the normal pursuits of life and happiness, she will be confined to a wheelchair for the rest of her natural life and be caused to incur extensive costs and expenses for her care, maintenance, treatment and support, and she will continue to suffer excruciating mental and physical pain and anguish for the rest of her natural life. James Harrington filed a motion to dismiss Margaret Harrington's tort action in the Montgomery Circuit Court, claiming that plaintiff had previously filed a case in the Circuit Court of Elmore County, which is presently pending, which alleges substantially the same facts and seeks substantially the same relief, and that venue was improper in Montgomery County. After an ore tenus hearing on August 19, 1983, the Honorable Joseph D. Phelps, Circuit Judge of Montgomery County, entered an order denying defendant's motion. Defendant then filed this petition for writ of prohibition, mandamus, or other relief, invoking the supervisory powers of this court under Amendment 328, § 6.02, to the Alabama Constitution and § 12-2-7 of the Alabama Code. Subsequent to the filing of defendant's petition for mandamus, defendant filed a motion in limine in the Circuit Court of Montgomery County, in which he alleged that he had "struck all allegations of improper venue from both his answer and counterclaim," and requested the Circuit Court to instruct the plaintiff and her counsel not to mention, refer to, interrogate concerning or attempt to convey to the jury in any manner the fact that improper venue actions had been struck from the answer and counterclaim. The case proceeded to trial and a jury verdict in favor of the plaintiff Margaret E. Harrington was returned on the 1st day of March 1984. As a result of the actions of the defendant concerning the venue allegations in his motion, Margaret Harrington has asked us to dismiss James Harrington's petition for mandamus on the ground that her husband's actions have rendered his petition filed with us moot. Plaintiff's petition for writ of mandamus, prohibition, or other relief is due to be denied. In order for defendant Harrington to prevail on his petition for writ of mandamus or other relief, he is obligated to convince this court that Margaret Harrington is or was pursuing the same cause of action in two distinct courts, and/or that venue was not proper in Montgomery County because in truth and fact James Harrington was a permanent resident of Elmore County. We will address petitioner's first contention first. Fortunately, we have been provided with excellent briefs by the parties. Petitioner relies heavily on our decision in Terrell v. City of Bessemer, 406 So.2d 337 (Ala.1981). The petitioner quotes the following from Terrell: In Sessions v. Jack Cole Co., 276 Ala. 10 at 12, 158 So.2d 652 at 654 (1963), this court, quoting with approval from Chappell v. Boykin, 41 Ala.App. 137, 140, 127 So.2d 636, 638 (1960), cert. denied 271 Ala. 697, 127 So.2d 641 (1961), interpreting the rule against splitting one's cause of action, observed that "a `cause of action' grows out of the wrongful act, and not the various forms of damages that may flow from the single wrongful act." This court stated also that application of *101 this rule is guided by "whether a judgment in one suit would be res judicata of the other." Sessions, 276 Ala. at 12, 158 So.2d at 654. Plaintiff's state and federal actions arise from the same alleged fact situation. Although plaintiff's state court action was instituted on different theories of recovery, these theories are not different causes of action in the context of the rule against splitting a cause of action. A cause of action may give rise to one [or] more theories of recovery. It has been recognized that where a single wrong leads to an action under state law and leads to an action under federal law, there is but one wrong and one cause of action. Id. at 339. Petitioner states that the wrongful act in both the Montgomery County and the Elmore County cases is the shooting of the plaintiff. He further contends that the only difference in the two actions is the form of relief sought in the two cases. In Elmore County, the relief sought is an award of "any and all real or personal property in which the husband may own an interest." In Montgomery County, the relief sought is $5,000,000.00. Petitioner argues that since the form of relief does not determine whether there are two causes of action, and there was only one wrong, Mrs. Harrington's suit in Montgomery County is prohibited by our decision in Terrell, and by Code 1975, § 6-5-440. In other words, petitioner contends that if there has been an assault and battery on a wife and a divorce action is filed, the wife should not be allowed to file a separate suit for assault and battery, but should be required to join her claim of assault and battery in her divorce action. This is true, he says, since with the merger of law and equity, "[a] party asserting a claim to relief... may join ... as many claims either legal or equitable, or both, as he has against an opposing party." A.R.Civ.P. 18; Underwood v. Jarvis, 358 So.2d 731, 736-37 (1978). But, as ingenious as petitioner's argument is, we are constrained to agree with Mrs. Harrington that the divorce action in Elmore County is simply not the same cause of action as her action in Montgomery County for assault and battery. We agree with her that the issues before the Elmore County court include the following: (1) divorce—termination of the marriage res (a) incompatibility (b) irretrievable breakdown of the marriage (c) actual violence (d) habitual drunkenness (2) property division (3) alimony (4) child custody and support (5) attorney's fees In the tort action in Montgomery County, the issues involved are: (1) the nature of the wrong committed by defendant; (2) the amount of compensatory damages recoverable by plaintiff; (3) the amount of punitive damages recoverable by plaintiff; (4) a determination by a jury of all of the factual issues set forth. In order to determine whether causes of action are the same, the courts have developed certain tests. Two of these tests are: (1) res judicata, and (2) same evidence test. We addressed both of these tests in our decision in Braggs v. Jim Skinner Ford, Inc., 432 So.2d 466 (Ala.1983). There, plaintiff filed a suit based on Mini-Code and Truth-In-Lending Act claims. Subsequently, plaintiff filed a suit alleging fraud and misrepresentation and breach of warranty. There we held that since substantially different evidence supported each of plaintiff's actions, suit on the Mini-Code and Truth-In-Lending Act claims did not necessarily bar plaintiff's claims for fraud and misrepresentation and breach of warranty. We are of the opinion that the reasoning of that case applies with equal force in the instant case. The mere fact that plaintiff included in her divorce action *102 a charge that defendant assaulted her does not make the divorce action a cause of action identical to the assault and battery action brought in Montgomery County. To find persuasion in that argument would mean that we would have had to conclude, in Braggs, that suit under the Truth-In-Lending Act barred a suit for fraud and misrepresentation and breach of warranty. Therefore, the petition for writ of mandamus and prohibition based on identical causes of action is due to be denied. We now address petitioner's second issue, namely, that he was a permanent resident of Elmore County, and, therefore, was not properly sued in Montgomery County because the tort sued for did not occur in Montgomery County and he did not reside there. The trial judge took testimony on this issue and concluded that the petitioner was a resident of Montgomery County at the time the tort action was filed. We have reviewed the testimony offered at the hearing, including Mr. Harrington's testimony that he admitted that he had lived in Montgomery County and moved to Elmore County for four years and then moved back to Montgomery County. We also note that there was evidence that in March 1982, Mr. Harrington moved into the Grove Court apartments in Montgomery County, signed a lease, and paid rent there. Furthermore, he moved from there to The Meadows apartments in Montgomery and gave that address to the operators of the Grove Court apartments. Where a trial judge hears ore tenus evidence, his findings are presumed to be correct and will not be disturbed unless palpably wrong. Stallworth v. First National Bank of Mobile, 432 So.2d 1222, 1224 (Ala. 1983). We are of the opinion that the evidence quoted above, together with further evidence in the record, leaves no doubt that the trial judge was well within his authority in determining that petitioner was, and is, a resident of Montgomery County. Therefore, as to petitioner's second issue, as well as the first, the writ of mandamus must be denied. WRIT DENIED. TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur.

532 F.2d 747 Rosev.Mitsubishi International Corp. No. 75-1969 United States Court of Appeals, Third Circuit 3/4/76 1 E.D.Pa. REVERSED AND REMANDED

824 S.W.2d 445 (1991) STATE of Missouri, Respondent, v. William B. HENDERSON, Appellant. Nos. 57526, 59572. Missouri Court of Appeals, Eastern District, Division Five. October 1, 1991. *447 William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent. Henry Robertson, Asst. Public Defender, St. Louis, for appellant. SIMON, Judge. Appellant appeals his convictions by a jury of first degree murder and armed criminal action, Sections 565.020 and 571.015 RSMo (1986), for which appellant was sentenced to consecutive terms of life without parole and life imprisonment. Appellant also appealed from the denial of his Rule 29.15 motion, but has apparently abandoned his appeal because his brief contains no points raised concerning the post conviction motion. We dismiss his Rule 29.15 motion appeal due to its abandonment. State v. Mayo, 784 S.W.2d 897[1] (Mo.App.1990). On appeal, appellant asserts that the trial court erred in: (1) admitting into evidence the letter written by the victim because it was inadmissible hearsay and allowing the jury to view the letter during their deliberation; (2) refusing appellant's Instruction B defining "mental disease or defect" as any mental abnormality regardless of its medical label, origin, or source; (3) compelling disclosure of appellant's conversations with nurse-counselors at Hyland Center because they contained privileged communications and letting testimony of the conversations go to the jury on the issue of guilt; (4) overruling his motion to suppress his statements made to the police because the statements were involuntary in that he had made incriminating statements without benefit of the Miranda warnings and he was not taken before a magistrate as soon as practicable; and (5) granting leave to the state to file a second amended information. We affirm. A brief recitation of the facts viewed in a light most favorable to the verdict is necessary. Around 2:30 a.m. on June 6, 1988, appellant called the nursing center at Hyland Center and told the nurse who answered the call that his wife was a prostitute, she had come home high on cocaine and he wanted her out of the house. Appellant said he had guns in the house and was afraid of what might happen. The nurse referred appellant to various counseling organizations and suggested he call a friend. Appellant called back at 5:10 a.m. Speaking to a second nurse, appellant stated he was going to shoot his wife and then kill himself because she had been sleeping with his friends for drugs. The nurse who had answered the first call talked to appellant once again. Appellant told her that he had made his wife write a letter and began to read the letter over the phone. The nurse heard a female whimpering in the background and then a "pop". Next, she heard appellant say, "I missed you this time, you bitch, but I'll get you next time." A second "pop" was heard and then appellant told the nurse, "I killed her", and that he was going to kill himself, and hung up. While appellant was on the phone, the nursing staff had traced the call and notified the police. Appellant called the Jefferson County Sheriff's office at 5:30 a.m. and calmly *448 said, "I killed my wife". He gave his name, address and specific directions to his home. Appellant said he killed his wife because she had been "running around with some guys". He also told the police his two children were in the bedroom, and he was going to "shoot himself with dope". Appellant called the police back at 5:45 a.m. and continued to talk until police arrived at his home. When asked whether his wife was dead, appellant stated that he knew for a fact that she was dead because he had laid there until she died. At appellant's house, the police found appellant sitting in a chair with a gun beside him. Appellant was handcuffed and transported to the hospital in an unconscious state. Appellant's wife was found dead on the floor in front of him. She had died from massive hemorrhaging having been shot once in the chest. Around her body, police found five pages of a letter signed by Rebecca Henderson and William Henderson which began, "To whom it may concern; Why my husband is going to kill me." A pen was found in the victim's hand and both the pen and several pages of the letter were stained with her blood. Appellant had injected himself with chlordane, a pesticide, and was hospitalized for eight days during which appellant was guarded by police but not questioned. On June 14, 1988, detectives took appellant to the Jefferson County Sheriff's Department and read him his rights. Appellant stated he understood his rights but refused to allow the police to tape his statement. After appellant made a statement to police concerning the incident, he was taken to the circuit court. Other facts will be adduced as necessary. In his first point, appellant claims the trial court erred in admitting into evidence the letter written by the victim. Overruling appellant's motion in limine, the trial court permitted the letter to be identified and referred to under the theory of res gestae. During trial, the letter was read and admitted into evidence. At that time, the trial court also stated the letter qualified as a dying declaration or an adoptive admission by the appellant. Appellant argues the letter was not within res gestae because it was not a spontaneous declaration nor did it qualify for any of the other exceptions under the hearsay rules. Respondent argues the letter was relevant, not for the truth of the matter asserted, but to corroborate appellant's statements to others demonstrating his deliberation. Generally, the letter would be hearsay, but we find it admissible as an adoptive admission. One may expressly or implicitly adopt the statement of another as his own and such can constitute an admission of a party opponent. State v. Laws, 668 S.W.2d 234, 239[10] (Mo.App.1984). See also, Fed.R.Evid. 801(d)(2). To establish the adoption of a hearsay statement sufficient to make it admissible as an adoptive admission, the state must show that the accused against whom the statement is offered had knowledge of the declarant's statements, and second, the accused, having such knowledge, has, by words or other conduct, manifested his adoption of it. 23 C.J.S. Criminal Law, Section 888 p. 100 (1989). See also McCormick on Evidence, 3rd Ed., Section 269 p. 797 (1984). Here, appellant clearly admits knowledge of the contents of the letter and adopts it as his own. When appellant called Hyland Center a second time, the nurse who answered the phone heard appellant ordering his wife to "write." Then when the nurse who answered appellant's first call to Hyland was brought to the phone appellant told her that he made his wife write a letter containing the names of people she had slept with and he read part of the letter over the phone to her. The evidence therefore suggests appellant knew of the letter's contents. Additionally, the letter was found with appellant's signature and he later admitted to police that he signed the letter. Appellant had knowledge of the contents of the letter, he signed the letter, and later admitted signing the letter, thus manifesting his knowledge and adoption of the letter. Appellant cites several cases to support his position, but they are distinguishable. In State v. Cochran, 356 Mo. 778, 203 *449 S.W.2d 707, 713 (1947), the letter was clearly hearsay as the defendant had no knowledge of the letter's existence nor took any efforts to adopt it. In a California case, People v. Maki, 39 Cal.3d 707, 217 Cal.Rptr. 676, 704 P.2d 743, 746-8 (1985), invoices from a car rental agency with defendant's signature were not deemed adoptive admissions because it couldn't be shown that the defendant had read over the document before signing. Here, appellant took part in the writing of the letter, was heard telling his wife to write, and read parts of the letter over the phone. Finally, appellant refers to State v. Orecchio, 27 N.J.Super. 484, 99 A.2d 595, 602 (1953), where the court refused to assume the defendant had read the letters in question because they were not addressed to him and were found in a common office used by others. Here, the evidence clearly establishes appellant's participation and knowledge. Appellant also claims that during deliberation, the jury was allowed to examine the letter for an impermissible reason, namely as a conclusion or opinion and for the victim's state of mind. The note from the jury stated, "We would like to see the letter written by Rebecca Henderson stating she was afraid for her life." The jury, in its request to view the letter, did not state an impermissible reason, but merely identified the letter. The jury had knowledge of the letter, its contents and the fact that it was stained with the victim's blood. The trial court did not err in allowing the jury to examine the letter. In his second point, appellant claims the trial court erred in refusing appellant's Instruction B which defined "mental disease or defect" as meaning any mental abnormality regardless of its medical label, origin, or source. The trial court refused this instruction and gave Instruction 6, tracking MAI-CR 3d 308.03, which defined mental disease or defect to exclude "an abnormality manifested only by repeated antisocial conduct". Appellant claims this language was not supported by the evidence and allowed the jury to disregard appellant's evidence for impermissible reasons. Appellant is presumed free of mental disease or defect excluding responsibility, and carries the burden to convince the jury, as the trier of fact, that the evidence substantially supports his acquittal under the defense of mental disease or defect. Section 552.030(6), RSMo 1986. State v. Childers, 791 S.W.2d 779, 781-2[1] (Mo.App.1990). Appellant points out that Dr. Cuneo, a defense witness, testified that appellant had a mental disease or defect and was in the manic phase of his bipolar disorder at the time of the crime. As respondent points out, however, Dr. Cuneo also testified that appellant displayed a pattern of irresponsible and antisocial behavior which had begun during childhood and has continued through adulthood. Dr. Cuneo stated that this behavior would be consistent with an individual suffering from a personality disorder including the elements of both an antisocial personality disorder and a borderline personality disorder. Thus, the record contains evidence suggesting the existence of both a mental disease or defect and an antisocial disorder. When evidence of any parenthetical exception exists along with evidence of a mental disease or defect, the inclusion of the parenthetical serves to clarify the law for the jury by distinguishing between these conditions. State v. Smith 649 S.W.2d 417, 432[23] (Mo. banc 1983) (referring to MAI-CR 2d 2.32, which contains the same definitions and parenthetical exceptions as MAI-CR 3d 308.03). Since the record suggests evidence of both mental disease or defect and antisocial behavior, the trial court did not abuse its discretion when it included the parenthetical exempting anti-social behavior from the definition of mental disease. Point denied. In his third point, appellant asserts the trial court erred in compelling disclosure of his conversations with nurse-counselors at Hyland Center. Appellant maintains he called Hyland Center for the purpose of seeking professional help and that his conversations with the nurses were protected by the physician-patient or psychologist-patient privilege. Section 491.060(5) RSMo Cum.Supp.1990, provides: *450 The following persons shall be incompetent to testify: (5) A physician licensed under chapter 334, RSMo, a licensed psychologist or a dentist ... concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe and provide treatment for such patient as a physician, psychologist or dentist. Also, Section 337.055, RSMo 1986 provides a provision protecting communications made to a licensed psychologist. Communications made to or in the presence of a nurse may be privileged if the nurse is acting under the direction of a physician or assisting him in his treatment. State v. Scott, 491 S.W.2d 514, 519[8][9] (Mo. banc 1973). Here, however, the nurses were not working under the direction of a doctor or psychologist. The physician-patient privilege applies only to those communications necessary to prescribe treatment, and the person claiming the privilege has the burden to show that necessity. State v. Lewis, 735 S.W.2d 183, 187[7-9] (Mo.App.1987). Appellant never established a physician-patient relationship because he never sought treatment. The nurses at Hyland did not suggest or refer appellant to a doctor or psychologist within Hyland, but only gave appellant some phone numbers for Legal Assistance, Family Counseling and Al-Anon and suggested that he call a friend. At trial, the nurses testified that it clearly was not standard procedure to refer patients to doctors at Hyland. In addition, no records or files for the hospital were kept. The nurse answering the call only made and kept personal notes. Examining the disclosures of the conversations reveals that appellant was not seeking medical assistance. Apparently, appellant was looking for a forum for expressing his motives for the killing. Clearly, no physician-patient relationship was established. Appellant also claims the use of the statements should have been limited to prove mental capacity. Having concluded that no privilege existed, this claim is without merit. In his fourth point, appellant contends the trial court abused its discretion in overruling his motion to suppress statements made to detectives. Appellant argues that his statement to Detective Harris was involuntary because an initial statement to Deputy Garrison at the hospital "contributed to a statement made later the same day" to Detective Harris, and that the police should have applied for a warrant within 20 hours of arrest and taken him before a judge as soon as practicable. Following his arrest, appellant was transported from the scene of the crime unconscious and remained hospitalized under guard for eight days. Appellant was never questioned by police while at the hospital, but at one point appellant began asking Deputy Garrison questions. When appellant referred to the poison he had taken and that he did not expect to live, Garrison ended the conversation. Appellant now claims these statements were a product of a custodial interrogation without the benefit of the Miranda warnings. While these statements were not introduced into evidence, appellant asserts that these statements to Garrison contributed to the statement made later to Detective Harris which was introduced into evidence. "[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion." Oregon v. Elstad, 470 U.S. 298, 314, 105 S.Ct. 1285, 1296, 84 L.Ed.2d 222[12] (1985). Here, appellant fails to provide any indication of deliberately coercive tactics by Deputy Garrison who ended the conversation when appellant referred to poison he had taken and that he did not expect to live. The record suggests that appellant's statements to Harris were voluntary and cumulative of all other statements made by appellant. Evidence throughout showed that appellant wanted his reasons for killing his wife to be known. The record clearly indicates the police followed proper procedures. The complaint and arrest warrant were filed on June 6, 1988. Upon release from the hospital on June 14, 1988, appellant *451 was taken to the Jefferson County Sheriff's Department where he was advised of his Miranda rights. Appellant indicated he understood his rights and proceeded to give an incriminating statement to the detectives concerning why and how he killed his wife. Afterwards, on that same day, appellant appeared before the associate circuit court. Whether a confession is voluntary depends upon the totality of the circumstances, and failure to produce a prisoner before the judge as soon as practicable is a factor to be considered in determining whether there has been physical or psychological coercion. State v. Smith 588 S.W.2d 27, 31[2, 3] (Mo.App.1979). There is no indication in the record that appellant was detained at the Sheriff's Department for an unreasonable length of time. The only reference to time was that the interview took place in the afternoon and lasted approximately one hour. We find no evidence of coercion. Further, the appellant does not indicate how the delay, if any, affected the voluntariness of his statements. In any event, considering the evidence and the statements by appellant at the time of the shooting, the statements made to Detective Harris were cumulative. Point denied. In his final point, appellant asserts that the trial court erred in granting leave for the state to file a second amended information. Appellant was originally charged with murder in the first degree and received a preliminary hearing on this charge. Pursuant to plea negotiations, the state filed an amended information reducing the charge to second degree murder, but negotiations failed. On the first day of trial, the state filed a second amended information reinstating the first degree murder charge and adding a prior and persistent offender charge. Appellant claims the amended information charged a different offense and prejudiced appellant's substantial rights. An information may be amended at the discretion of the trial court at any time before trial. State v. Mason, 650 S.W.2d 15, 16[2, 3] (Mo.App.1983). The test for prejudice under this rule is whether a defendant's evidence would be equally applicable, and his defense equally available, after the amendment. State v. Wilson, 544 S.W.2d 859, 862[1-3] (Mo.App.1976). In this case, appellant received a preliminary hearing on the first degree murder charge, was fully informed of the charges against him before trial and was able to prepare a defense against it. The amended charge did not alter or limit appellant's original defense and evidence. Appellant has failed to show how he was prejudiced. Point denied. Judgment affirmed. CARL R. GAERTNER, C.J., and CRANE, J., concur.

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS July 25, 2013 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court MICHAEL ORLANDO ROLLIE, Petitioner - Appellant, No. 13-1248 v. (D.C. No. 1:12-CV-02120-LTB) D. Colorado FRANCES FALK, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY * Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. * This order 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. 32.1.  Petitioner and Colorado state prisoner, Michael Orlando Rollie, proceeding pro se, seeks a certificate of appealability (“COA”) to enable him to appeal the dismissal of his 28 U.S.C. § 2254 application for a writ of habeas corpus. His § 2254 application challenged the validity of his conviction in a Colorado state court case. Concluding that Mr. Rollie has failed to demonstrate that he is entitled to the issuance of a COA, we deny him a COA and dismiss this matter. BACKGROUND As noted by the district court, the Colorado Court of Appeals summarized the lengthy state court proceedings in the relevant Colorado case (Boulder County district court case No. 96CR677) as follows: In November 1996, defendant was convicted on a jury verdict of first degree assault, third degree assault, menacing, reckless endangerment, prohibited use of a weapon (reckless discharge), and prohibited use of a weapon (possession under the influence). In April 1997, the trial court granted defendant’s motion for a new trial based on the court’s failure to instruct the jury on provocation. The order granting a new trial was affirmed on appeal. See People v. Rollie, (Colo. App. No. 97CA0850, May 7, 1998) (not published pursuant to C.A.R. 35(f)). In April 1999, defendant pleaded guilty to menacing, and, on June 4, 1999, the trial court sentenced him to thirty months in the custody of the Department of Corrections (DOC). Thereafter, the trial court granted defendant’s motion for reconsideration of his sentence under Crim. P. 35(b), reducing his sentence to eighteen months in the custody of the DOC. -2-  In March 2010, defendant filed a Crim. P. 35(c) motion, arguing that (1) his plea counsel was ineffective because he incorrectly advised him that, if he went to trial, there would be no possibility of an acquittal and a heat of passion instruction would only mitigate the conviction to a class five felony; and (2) the trial court failed to advise him of his constitutional rights and the elements of the crime to which he pled guilty. Defendant acknowledged that his motion was untimely but alleged there was justifiable excuse or excusable neglect because his counsel was ineffective and he did not know that his conviction was constitutionally infirm. On June 18, 2010, the trial court denied defendant’s motion as time barred, finding that defendant did not “allege facts which, if true, would establish justifiable excuse or excusable neglect” because “the ineffectiveness of his [plea] counsel [had] no bearing on the reasonableness of [his] delay in filing a post-conviction motion.” The court further found that neither “the lack of any ‘present need’ to collaterally attack a prior conviction, nor the recent discovery of a legal basis for a collateral attack, constitute[d] justifiable excuse or excusable neglect.” On June 30, 2010, defendant filed a pro se “Petition for Crim. P. 35(c) Rehearing,” requesting that the court reconsider its finding that there was no justifiable excuse or excusable neglect for the late filing of his Crim. P. 35(c) motion. Defendant alleged that, in a subsequent criminal case that arose in 2006 (2006 case), the trial court’s “fail[ure] to litigate the constitutional admissibility” of his 1999 conviction gave him the present need to challenge the conviction under Crim. P. 35(c) and that he asked his defense counsel in the 2006 case to file a Crim P. 35(c) motion challenging the prior conviction but counsel did not do so. On August 17, 2010, the trial court denied defendant’s motion, again finding that defendant failed to establish justifiable excuse or excusable neglect because the allegations did not show why he could not have filed a postconviction motion within the three-year limitations period. On October 13, 2010, defendant appealed the trial court’s June 18, 2010, and August 17, 2010, orders, along with a request to accept -3-  the notice of appeal as timely filed. On November 12, 2010, the motions division of this court dismissed the appeal as to the June 18, 2010, order but accepted the notice of appeal as timely with regard to the August 17, 2010, order. Order at 2-4 (quoting People v. Rollie, No. 10CA2111 (Colo. Ct. App. Dec. 22, 2011)). The Colorado Court of Appeals then affirmed the trial court’s denial of Mr. Rollie’s petition for rehearing of the court order denying his postconviction motion under Colo. R. Crim. P. 35(c). On May 29, 2012, the Colorado Supreme Court denied certiorari. Mr. Rollie subsequently filed, on August 10, 2012, his original 28 U.S.C. § 2254 application (the instant application) in federal district court. He filed an amended application on September 5, 2012. In his amended application, Mr. Rollie asserted five claims, all relating to the 1996 Colorado state conviction, No. 96CR677, and described as follows by the district court: (1) The reinstatement of trial counsel after the trial court found counsel to be ineffective violated his Sixth and Fourteenth amendment rights to conflict-free counsel; (2) The trial court and trial counsel failed to advise him of his constitutional rights pursuant to Colo. R. Crim. P. 32(c) and Colo. R. Crim. P. 35(c), causing the conviction in No. 96CR677 to be constitutionally invalid; (3) “The defendant has a present need pursuant to the IV ABA Standards for Criminal Justice § 22.2-4 (2d ed. 1986) (ABA Standards), when the challenged conviction, 96CR677, was used against him and was a factor in sentencing in his Denver criminal case which is pending on appeal in 08CA391”; (4) “When the defendant was not allowed an opportunity to ensure that the unconstitutional conviction, 96CR677, was not used -4-  against him in his Denver criminal case which is pending on appeal in 08CA391, his due process of law right was violated”; (5) “The Defendant’s guilty plea to the menacing charge was not knowingly entered.” Order at 4 (quoting Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 at 5-13; R. Vol. 1 at 50-58). On October 16, 2012, the magistrate judge to whom the matter had been referred directed the Respondents (the Warden and the Colorado Attorney General) to file a pre-answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). Respondents argued, first, that Mr. Rollie fails to meet the “in custody” requirement under § 2254(a) because the conviction he challenges (the 1996 conviction in case No. 96CR677) has expired, inasmuch as he has long since completed service of his sentence, and he fails to allege adequately any exception to that “in custody” requirement. They thus argued that the district court lacked jurisdiction to consider Mr. Rollie’s § 2254 application. See Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004) (“The ‘in custody’ language of § 2254 is jurisdictional and requires habeas petitioners to be ‘in custody’ under the conviction or sentence under attack when they file the petition.”), abrogated on other grounds, Padilla v. Kentucky, 559 U.S. 356 (2010). -5-  Second, they argued that Mr. Rollie’s application was untimely under the one-year statute of limitations for habeas petitions, provided by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Finally, Respondents claimed that Mr. Rollie had failed to exhaust his claims by fairly presenting them to the Colorado state courts, and “any attempt to file a new motion [in state court] would be rejected as time barred, successive, and an abuse of process [and thus] are anticipatorily defaulted.” Pre-Answer Response at 13-14; R. Vol. 1 at 86-87. 1 The district court subsequently dismissed Mr. Rollie’s § 2254 petition for lack of jurisdiction and as barred by the one-year limitation period in 28 U.S.C. § 2254(d). The court further determined that no COA would issue “because Applicant has not made a substantial showing of the denial of a constitutional right.” Order at 12. Finally, the court denied leave to proceed in forma pauperis on appeal. As indicated, Mr. Rollie now seeks a COA from our court to enable him to appeal that order of dismissal. DISCUSSION “A COA is a prerequisite to appellate jurisdiction in a habeas action.” Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013). It may issue “only if 1 As we have stated, “‘[a]nticipatory procedural bar’ occurs when the federal courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (quoting Moore v. Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002)). -6- the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected . . . constitutional claims on the[ir] merits,” the applicant “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where a district court’s ruling rests on procedural grounds, the applicant must show both “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.; Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012). The district court carefully and thoroughly explained why Mr. Rollie’s case must be dismissed. It explained why the court lacked jurisdiction to review Mr. Rollie’s petition, and, moreover, why the application was time-barred. We cannot improve on the district court’s explanation and analysis. Mr. Rollie has failed to develop any grounds for disagreeing or questioning that court’s discussion, reasoning and holding. We therefore agree with the district court that, for substantially the reasons stated by the court in its order of dismissal, Mr. Rollie has failed to establish that he is entitled to the issuance of a COA. -7-  CONCLUSION For the foregoing reasons, we DENY Mr. Rollie a COA and DISMISS this matter. We also DENY his request to proceed on appeal in forma pauperis. ENTERED FOR THE COURT Stephen H. Anderson Circuit Judge -8- 

[Cite as State v. Baker, 2016-Ohio-3471.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 15AP-224 v. : (C.P.C. No. 13CR-1663) Larry Baker, : (REGULAR CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on June 16, 2016 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee. On brief: Clark Law Office and Toki M. Clark, for appellant. APPEAL from the Franklin County Court of Common Pleas BRUNNER, J. {¶ 1} Defendant-appellant, Larry Baker, appeals from a judgment of the Franklin County Court of Common Pleas entered on February 25, 2015, which sentenced him to a two-year term of imprisonment on a single count of burglary following a guilty verdict in a trial by jury. Specifically, Baker challenges the authenticity of a video used against him as well as the sufficiency and weight of the evidence against him. For the following reasons, we affirm. I. FACTS AND PROCEDURAL HISTORY {¶ 2} On Monday, September 24, 2012, a pastor with the Rock City Church was in the church offices at 950 Michigan Avenue in Columbus, Ohio preparing to deposit the collection money obtained on the preceding Sunday. He opened the safe in his office, removed packets of checks, other donation receipts from online sources, and an envelope of cash. The cash envelope was clearly marked "cash" and had the amount listed on the outside, approximately $1200. (Tr. Vol. II at 39.)  2 No. 15AP-224 {¶ 3} After placing the envelopes on his desk, the pastor left his office briefly to use the restroom down the hall from his office. On the way back, he spoke briefly with the only other person working in the building that day, the church's youth pastor. In total, he was away from his office for approximately five minutes. When he returned to his office the cash envelope was gone. {¶ 4} Initially believing he had merely misplaced the envelope or misremembered ever having it, he investigated by contacting members of the church who took and counted the collection in order to confirm that indeed there had been a cash envelope. However, after he exhausted those avenues, he contacted Integrated Building Systems ("IBS") (the landlord from which the church rented the office space) to determine if the building had security camera records. IBS did have a security camera system and one of the cameras captured activity in the hallway in the area of the route between an outside entry door and the doorway of the pastor's office. {¶ 5} The pastor contacted the police and either on the day of the theft, September 24, 2012, or the day after, a Columbus police officer arrived at the scene and reviewed the video with the pastor that had been captured by IBS' system. The pastor fast forwarded and rewound through the video with the police officer until they found a segment of video that showed some activity. The pastor requested from IBS a copy of the video segment showing activity. Employees of IBS made a copy and gave it to the pastor who, in turn, delivered it into the hands of the police. {¶ 6} The video, which was ultimately introduced into evidence and played at trial, is in the record before this Court, and we have reviewed it. It shows a man (whom the jury ultimately determined was Baker) entering the building and slowly ambling from doorway to doorway looking inside each room. From viewing the video, he is dressed in a shirt and tie, has a messenger bag slung across his chest, and appears to be clutching some papers. When he enters the pastor's office, there is a longer period in which he is not visible than when he looked in any of the other doorways. After this period, he sticks his head out and carefully looks both directions up and down the hall before pulling his head back into the office. Seconds later, he exits the office with some envelopes or papers in his grasp. He pauses briefly to look over his shoulder and then lopes, with soft  3 No. 15AP-224 exaggerated jogging strides, down the hall and out the outer door of the church offices, both opening and closing the door slowly. {¶ 7} The pastor did not know who the man was, but he said that, despite the fact that the church offices are not open to the public or advertised by signs, he had entered the church offices once before, approximately three to six months prior to the day of the theft. On that occasion, when confronted by staff, he told them he was collecting for some charity or organization, gave the church staff a pamphlet, and left. Despite the fact that the pastor did not know Baker's identity, by a method not reflected in the record, the police came to suspect that Baker was the man shown in the video. Thus, in December 2012, a Columbus police detective went to speak to Baker. He showed Baker photographic stills taken from the video. Baker admitted the photographs looked like him but did not admit that they were he and did not admit to having been in the Rock City Church offices. Baker related that he goes to a great number of places, to pass out resumes and flyers seeking donations for the homeless. {¶ 8} A Franklin County Grand Jury indicted Baker on March 26, 2013 for a single count of burglary. Apparently because of a service delay, Baker was not arraigned until August 1, 2014, when he pled not guilty. On January 26, 2015, a jury trial in the case began. The facts related above were introduced into evidence during that trial, and on January 29, 2015, the jury found Baker guilty. On February 25, 2015, the trial court sentenced Baker to serve two years in prison. {¶ 9} Baker now appeals. II. ASSIGNMENTS OF ERROR {¶ 10} Baker presents four assignments of error for review: [1.] THE VERDICT OF GUILTY IS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE. [2.] THE CONVICTION OF APPELLANT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. [3.] THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S MOTIONS FOR ACQUITTAL. [4.] THE TRIAL COURT ERRED IN FAILING TO EXCLUDE MODIFIED VIDEO EVIDENCE THAT WAS NOT AUTHENTICATED.  4 No. 15AP-224 For clarity of analysis, we address the assignments of error out of order. III. DISCUSSION A. Fourth Assignment of Error–Whether the Trial Court Erred in Failing to Exclude the Surveillance Video {¶ 11} Baker argues that the surveillance video introduced into evidence against him was not properly authenticated, that there was evidence that the time stamp on it could have been tampered with, and that it was "whittled down" from a much lengthier video. (Baker's Brief at 11.) {¶ 12} There is no evidence that the time stamp on the video was or could have been tampered with. Indeed, the IBS witness who testified about the security system expressly testified that, although the recorder occasionally is off by a few minutes and needs to be adjusted, once a video is recorded, the time stamp is part of the video, and there is no way, short of "TV show land" style editing to change the date and time. (Tr. Vol. II at 145.) {¶ 13} While witnesses testified that security cameras record a great deal of footage of which this excerpt was only one small part, no witnesses testified that the surrounding footage held any relevance at all to this case. The officer who reviewed the video with the pastor testified that the two of them were "fast forwarding and rewinding through the video to make sure [they] got everything" and "the segment that I - - contained [Baker] on it was, maybe, a couple of minutes. No longer than that." (Tr. Vol. II at 153.) In the absence of some reason to suspect that other parts of the video were potentially relevant, we find no evidence in the record to support that any other portion of the video footage available holds any importance as to whether or not the excerpt shown to the jury is admissible. {¶ 14} Authenticity is a condition precedent to admissibility but can be "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Evid.R. 901(A). In a classic case of photographic authentication, the person who took the photographs or videos would testify as to how and when they were taken and that they show what they purport to show. See, e.g., State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, ¶ 150. However, in some contexts (including security cameras), the Supreme Court of Ohio has embraced the " ' "silent witness" theory. Under that theory, the photographic evidence is a "silent witness" which speaks for itself, and is  5 No. 15AP-224 substantive evidence of what it portrays independent of a sponsoring witness.' " Id., quoting Midland Steel Products Co. v. Internatl. Union, United Auto., Aerospace & Agriculture Implement Workers, Local 486, 61 Ohio St.3d 121, 129-30 (1991), quoting Fisher v. State, 7 Ark.App. 1, 5-6 (1982). In other words, when a witness can testify about the reliability of the recording system, including, for example, the positioning of the cameras and the method of recording and producing the video, the video will be considered properly authenticated in the absence of some countervailing reason to believe that the video is defective or has been altered in some respect. Id. at ¶ 151-52. {¶ 15} In this case, a representative of IBS testified about the positioning of the cameras, how they were activated, how they recorded, and how the excerpt was created for the pastor in this case. In addition, a police officer who was present when the excerpt was selected by fast forwarding and rewinding in order to ascertain the boundaries of the potentially relevant footage, testified briefly about that process. In the absence of countervailing evidence or reasons to believe that this video is anything other than what it purports to be, the testimony by the IBS witness and the officer was sufficient to establish the authenticity of the video recording. {¶ 16} Baker's fourth assignment of error is overruled. B. First, Second, and Third Assignments of Error–Whether Baker's Conviction was Against the Manifest Weight of the Evidence, Whether it was Supported by Sufficient Evidence, and Whether a Rule 29 Motion for Acquittal Should Have Been Granted {¶ 17} In his first assignment of error, Baker alleges that his convictions were not supported by sufficient evidence. Sufficiency is: "[A] term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law." * * * In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 11, quoting State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); Black's Law Dictionary 1594 (6th Ed.1990). "In reviewing a record for sufficiency, '[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' " State v.  6 No. 15AP-224 Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. {¶ 18} Although Baker's third assignment of error challenges the denial of his motion for acquittal, this does not necessitate a separate review because "[a] motion for acquittal under Crim.R. 29(A) is governed by the same standard as the one for determining whether a verdict is supported by sufficient evidence." State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37, citing State v. Carter, 72 Ohio St.3d 545, 553 (1995); Thompkins at 386. {¶ 19} Baker's second assignment of error challenges the manifest weight of the evidence. The Supreme Court has "carefully distinguished the terms 'sufficiency' and 'weight' * * *, declaring that 'manifest weight' and 'legal sufficiency' are 'both quantitatively and qualitatively different.' " Eastley at ¶ 10, quoting Thompkins at paragraph two of the syllabus. Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief." (Emphasis deleted.) Id. at ¶ 12, quoting Thompkins at 387; Black's at 1594. In manifest weight analysis, "the appellate court sits as a 'thirteenth juror' and disagrees with the jury's resolution of the conflicting testimony." Thompkins at 388, quoting Tibbs v. Fla., 457 U.S. 31, 42 (1982). " 'The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). However, even though manifest weight is a different standard from sufficiency, because the evidence against Baker in this case was overwhelming and does not come close to failing either measure of sufficiency or weight, we find it effective to analyze these assignments of error together.  7 No. 15AP-224 {¶ 20} The Ohio Revised Code defines the offense of burglary, in part, applicable to this case as follows: (A) No person, by force, stealth, or deception, shall do any of the following: (1) Trespass in an occupied structure * * * when another person * * * is present, with purpose to commit in the structure * * * any criminal offense. R.C. 2911.12(A)(1). (C) "Occupied structure" means any * * * building * * * to which any of the following applies: *** (4) At the time, any person is present * * * in it. R.C. 2909.01(C)(4). "Trespass," as used in R.C. 2911.12(A)(1) and as relevant to this case, is to "[k]nowingly enter or remain on the land or premises of another," "without privilege to do so." R.C. 2911.21(A)(1); see also, R.C. 2911.10 (providing that for purposes of R.C. 2911.11 to R.C. 2911.13 "the element of trespass refers to a violation of section 2911.21 of the Revised Code"). {¶ 21} Baker argues that his conduct as shown by the evidence does not meet these elements because when he entered the building he had no intent to commit a crime and could not have known that, only moments before Baker wandered in, the pastor had taken money from the safe and left it unattended on his desk while he went to the restroom. Baker therefore urges us to find that this was a "theft of opportunity" and not burglary. (Baker's Brief at 5.) However, although burglary can be committed by entering an occupied structure by force, stealth, or deception with the already-fully-formed purpose to commit a criminal offense, Baker fails to note that the crime of burglary occurs upon a "trespass" in an occupied structure. R.C. 2911.12(A)(1). "Trespass" is a concept that includes more than just the moment when one enters a forbidden area, but also knowingly "remain[ing] on the land or premises of another" without privilege to do so. R.C. 2911.21(A)(1); R.C. 2911.12(A)(1). Once Baker saw the money, as even his brief does not dispute, he formed the intent to steal it, and he remained in the church's office (where he had no privilege to be) in order to steal the money and then escape. The video clearly reflects that he was stealthy in his exit, peering around corners, exiting with exaggerated  8 No. 15AP-224 gentle strides, and carefully opening and closing the door to the outside, making his exit silent. In short, Baker's readily apparent attempts at stealth helped him to evade the hearing of the persons present in the building and to thereby "remain" and "trespass" on the premises long enough to steal the money and escape with it. This is burglary. "While the term, 'stealth,' is not defined in the Revised Code, this court has defined that term to include 'any secret, sly or clandestine act to avoid discovery and to gain entrance into or to remain within a residence of another without permission.' " State v. McBride, 10th Dist. No. 10AP-585, 2011-Ohio-1490, ¶ 23, quoting State v. Lane, 50 Ohio App.2d 41, 47 (1976); State v. Wallace, 10th Dist. No. 08AP-2, 2008-Ohio-5260, ¶ 43. The video in this case and the testimony of the witnesses are sufficient evidence, when viewed " 'in a light most favorable to the prosecution, [to have permitted] a[] rational trier of fact [to] have found the essential elements of the crime proven beyond a reasonable doubt.' " Monroe at ¶ 47, quoting Jenks at paragraph two of the syllabus. {¶ 22} In addition, it could not be clearer from the video exactly what Baker is doing when he peers around the corner, eyebrows raised and mouth agape to check for potential witnesses, before striding with exaggerated care down the hall to softly open and close the door in making his escape. Even his own defense counsel at trial characterized Baker's stealthy behavior as "cartoonish." (Tr. Vol. II at 189.) We have no difficulty concluding that this conviction is also not against the manifest weight of the evidence. {¶ 23} Accordingly, we overrule Baker's first, second, and third assignments of error. IV. CONCLUSION {¶ 24} Having overruled all four of Baker's assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. TYACK and KLATT, JJ., concur. _________________ 

916 F.2d 709 1991 A.M.C. 698 Italusa Corp.v.M/V Thalassini Kyra NOS. 90-7416, 90-7430 United States Court of Appeals,Second Circuit. SEP 19, 1990 Appeal From: S.D.N.Y., 733 F.Supp. 209 1 AFFIRMED.

[Cite as State v. Boddie, 2011-Ohio-6240.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) STATE OF OHIO C.A. No. 25904 Appellant v. APPEAL FROM JUDGMENT ENTERED IN THE SANTINO A. BODDIE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CR 09 09 2882 DECISION AND JOURNAL ENTRY Dated: December 7, 2011 CARR, Presiding Judge. {¶1} Appellant, State of Ohio, appeals the judgment of the Summit County Court of Common Pleas. This Court affirms. I. {¶2} Appellee, Santino Boddie, was indicted on October 9, 2009, in case number CR 2009-09-2882, on one count of carrying concealed weapons in violation of R.C. 2923.12(A)(2), a felony of the fourth degree; and one count of discharge of a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(2), a misdemeanor of the fourth degree. Boddie pleaded not guilty at arraignment. The parties subsequently entered into plea negotiations. In exchange for Boddie’s guilty plea, the State agreed to amend the count of carrying concealed weapons to a count of attempted tampering with evidence in violation of R.C. 2923.02/2921.12,  2 a felony of the fourth degree, and to allow Boddie’s entry into the Prosecutor’s diversion program. Boddie entered his guilty plea on March 10, 2010. {¶3} On March 3, 2011, the trial court held a hearing for two purposes. First, the trial court conducted a change of plea hearing in regard to two subsequent charges brought against Boddie in another case, number CR 2010-11-3255. Boddie pleaded guilty to one count of receiving stolen property, a felony of the fourth degree, and one count of attempted drug possession, a misdemeanor of the first degree. The trial court scheduled a restitution hearing for a later date. {¶4} Second, the trial court conducted a hearing on Boddie’s participation in the Prosecutor’s diversion program. The State informed the trial court that Boddie would no longer qualify for participation in the Prosecutor’s diversion program because of the new criminal case. Defense counsel conceded that Boddie was “aware that there is going to be an unsuccessful termination from the diversion case.” The court noted the positive reports it had been receiving to date regarding Boddie’s participation in the diversion program. The court then stated that, based on the questionable factual basis for the new charges, it would not find that Boddie had unsuccessfully completed the diversion program. On March 8, 2011, the trial court issued an order continuing Boddie in the diversion program and scheduling a diversion status for April 13, 2011. {¶5} On April 13, 2011, the trial court held a restitution hearing in case number CR 2010-11-3255 and conducted a status regarding Boddie’s participation in the Prosecutor’s diversion program. On April 15, 2011, the trial court issued an order in which it found that Boddie had successfully completed the diversion program. The court dismissed the indictment  3 in case number CR 2009-09-2882 and directed that the record be sealed. The State filed a timely appeal, raising two assignments of error which this Court consolidates to facilitate review. II. ASSIGNMENT OF ERROR I “THE TRIAL COURT ERRED IN DISMISSING THE INDICTMENT.” ASSIGNMENT OF ERROR II “THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT BODDIE SUCCESSFULLY COMPLETED THE DIVERSION PROGRAM.” {¶6} The State argues that the trial court erred by finding that Boddie successfully completed the Prosecutor’s diversion program and by dismissing the indictment in case number CR 2009-09-2882. This Court disagrees. {¶7} R.C. 2935.36(A) allows the prosecuting attorney to establish a pre-trial diversion program which “shall be operated pursuant to written standards approved by journal entry by the presiding judge *** of the court of common pleas[.]” Upon successful completion of the diversion program by an accused, “the prosecuting attorney shall recommend to the trial court that the charges against the accused be dismissed, and the court, upon the recommendation of the prosecuting attorney, shall dismiss the charges[.]” R.C. 2935.36(D). However, “if the accused violates the conditions of the agreement pursuant to which the accused has been released, the accused may be brought to trial upon the charges[.]” Id. This Court has written in a case upon which the State relies that “the trial court has the authority to hold a hearing to determine whether the conditions of the diversion program have been satisfactorily met by an accused.” State v. Curry (1999), 134 Ohio App.3d 113, 117.  4 {¶8} In this case, the trial court scheduled the issue of Boddie’s participation in the diversion program for hearings on March 3, 2011, and April 13, 2011, to determine whether he had successfully completed the program. The State did not object to either hearing. At the March 3, 2011 hearing, Boddie informed the trial court of the facts underlying his two charges in case number CR 2010-11-3255. The trial court expressed its opinion that, if the facts were as Boddie claimed, the State would have had a difficult time proving any criminal intent by Boddie. At the April 13, 2011 hearing, the trial court delineated some of the conditions established for Boddie’s successful completion of the diversion program, including his participation in a gun safety class, his enrollment in classes at a local university, and his obtaining negative drug screens. The court noted his successful completion of those conditions notwithstanding an intervening kidney transplant surgery and recovery. The trial court then noted the specious circumstances underlying the charges in case number CR 2010-11-3255 and found that “while Mr. Boddie has violated rules, the letter of the rules, he has not violated the spirit of the rules in the Prosecutor’s Diversion Program.” {¶9} The State on appeal alleges that Boddie violated the conditions of the diversion program by committing a new offense. However, the State failed to enter into evidence the rules by which Boddie was bound in order to successfully complete the diversion program. In the absence of those rules, this Court is unable to determine whether the trial court erred in determining that Boddie had not violated the rules in such a way as to require a finding that he unsuccessfully participated in the program. The State’s assignments of error are overruled. III. {¶10} The State’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.  5 Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. DONNA J. CARR FOR THE COURT MOORE, J. DICKINSON, J. CONCUR APPEARANCES: TODD M. CONNELL, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee. 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-40215 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VICENTE CABALLERO-RODRIGUEZ, also known as Antonio D. Toribio, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-99-CR-409-1 -------------------- October 19, 2000 Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* The federal public defender appointed to represent Vicente Caballero-Rodriguez has filed a motion to withdraw and a brief as required by Anders v. California, 386 U.S. 738 (1967). Caballero-Rodriguez has not filed a response. Our independent review of the brief and the record discloses no nonfrivolous issue. Accordingly, counsel’s motion to withdraw is GRANTED. Counsel is excused from further responsibilities * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 00-40215 - 2 - herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 

15 So.3d 588 (2009) MILLER v. STATE. No. 2D09-1750. District Court of Appeal of Florida, Second District. July 30, 2009. Decision without published opinion Mandamus denied.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 99-3372 ___________ John E. Scott, Sr.; Denise * D. Clark, and on behalf of * themselves and all others * similarly situated, * * Plaintiffs/Appellees, * * v. * * Appeals from the United States United Automobile, Aerospace * District Court for the District of and Agricultural Implement * Minnesota. Workers of America (UAW * Union), Local Union 879, a * Labor Organization, * * Defendant/Appellant, * * v. * * Ford Motor Company, a * Delaware Corporation, * * Defendant/Appellee. * ___________ No. 99-3811 ___________ John E. Scott, Sr.; Denise * D. Clark, and on behalf of * themselves and all others * similarly situated, * * Plaintiffs/Appellants, * * v. * * United Automobile, Aerospace * and Agricultural Implement * Workers of America (UAW * Union), Local Union 879, a * Labor Organization; Ford * Motor Company, a Delaware * Corporation, * * Defendants/Appellees. * ___________ Submitted: October 18, 2000 Filed: February 26, 2001 ___________ Before WOLLMAN, Chief Judge, LAY and BEAM, Circuit Judges. ___________ BEAM, Circuit Judge. These consolidated cases are "hybrid" actions under Section 301 of the Labor- Management Relations Act, 29 U.S.C. § 185 (Section 301), filed by plaintiffs John E. Scott, Sr. and Denise D. Clark, employees of Ford Motor Company's Twin Cities Assembly Plant. Clark and Scott bring these actions on behalf of a putative class (the class) of all employees of the Twin Cities facility who have been represented by the United Automobile, Aerospace and Agricultural Implement Workers (UAW), Local 879 since 1984. The class alleges Ford breached the health and safety provisions of its collective bargaining agreement (CBA) with UAW and that UAW breached its duty -2- of fair representation by failing to enforce the provisions. The district court granted summary judgment in favor of Ford, reasoning that the class did not have standing to maintain a Section 301 claim against Ford for violation of the health and safety provisions of the CBA. The district court denied UAW's motion for summary judgment, finding there were factual issues concerning whether UAW had breached its duty of fair representation. This court granted UAW permission to appeal this interlocutory ruling. Because we find that the class is barred from bringing suit against UAW by the applicable statute of limitations, we affirm in part and reverse in part. I. BACKGROUND Scott filed a health and safety grievance on December 10, 1995, alleging Ford had violated the CBA by exposing employees to hazardous chemicals without properly warning and training the employees. UAW decided to withdraw this grievance in January 1996, but due to a turnover of union representatives, the grievance was not formally withdrawn until September 27, 1996. On February 1, 1996, Scott's attorney filed charges with the recording secretary of UAW Local 879, against several members of the executive board of Local 879. These allegations were substantially similar to the allegations contained in the complaint in this action, with both asserting a breach of the duty of fair representation. The initial complaint alleging the hybrid Section 301/breach of fair representation claim was filed August 12, 1996, roughly one and one-half months before the grievance was formally withdrawn by UAW. Clark left Ford in February 1996 on medical leave and has not filed any grievances nor made any health and safety complaints subsequent to that time. Clark was not included as a named plaintiff to this action until January 1997. -3- II. DISCUSSION In this action the class seeks to pursue a hybrid claim under Section 301 against Ford for breach of the CBA and against UAW for breach of the duty of fair representation. Although the contractual remedies under a collective bargaining agreement between the employer and union ordinarily are exclusive, if the union has sole power under the contract to utilize the higher stages of a grievance procedure and wrongfully refuses to process a grievance, the employee may bring a hybrid action under Section 301. Vaca v. Sipes, 386 U.S. 171, 184-85 (1967). In order to prevail against either the employer or union, the employee must prove both that the union breached its duty of fair representation and that the employer breached the collective bargaining agreement. Id. at 186-87. Such an action is governed by the six-month statute of limitations set forth by the Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983). In DelCostello, the Court reasoned that a hybrid Section 301 fair representation claim resembled a claim for an unfair labor practice under the National Labor Relations Act (NLRA), and imposed a six-month limitations period similar to the limitation period found in section 10b of the NLRA. Id. at 169-70, 172. The statute of limitations begins running when the employee "should reasonably have known of the union's alleged breach." Evans v. Northwest Airlines, Inc., 29 F.3d 438, 441 (8th Cir. 1994). The class cannot maintain an action against UAW for breach of the duty of fair representation because the action was not filed within the six-month statute of limitations. At the very latest, Scott knew that UAW was not going to pursue the grievance when he filed charges against the union's executive board on February 1, 1996. Scott filed his December 1995 grievance with unit committee person John Moore, and Moore was one of the board members Scott filed charges against on February 1, 1996. In these charges, Scott alleges: -4-  During the period from 1993 until 1996, Moore breached his duty of fair representation owed to the membership of Local 879 by failing to handle grievances regarding [health and safety issues] in a proper manner. Moore dealt with grievances filed by members on these issues in a perfunctory manner, and the manner in which he allowed them to be processed was arbitrary, capricious, in bad faith, and without a rational basis. These actions by Moore were in violation of the UAW International Constitution, the Contract, and state and federal law. Thus, it is apparent Scott had sufficient facts to form the basis of his breach of duty of fair representation claim concerning the December 1995, grievance on February 1, 1996, more than six months prior to August 12, 1996, when this action was filed. In Gustafson v. Cornelius Co., 724 F.2d 75 (8th Cir. 1983), a Section 301 hybrid case wherein the exact date the union decided not to pursue the grievance was unclear, we held that the cause of action accrued on the date the employee alleged in an unfair labor practice charge that the union had decided not to pursue the grievance. Id. at 79- 80. In the alternative, we held the latest the cause of action could have accrued was on the date the unfair labor practice charge was filed with the National Labor Relations Board (NLRB). Id. at 79 n.10. See also Washington v. Service Employees Int'l Union, Local 50, 130 F.3d 825, 826 (8th Cir. 1997) (holding that six- month statute of limitations began to run on date employee filed unfair labor practice charge against union with NLRB, and no continuing violation recognized). Although Scott filed the charges here with the union's executive board rather than with the NLRB as was the case in Gustafson and Washington, we do not see an appreciable difference. The key inquiry is what Scott knew or reasonably should have known about the union's decision to pursue the grievance. The record indicates Scott had the requisite knowledge on February 1, 1996, at the very latest. Further, there is evidence Scott had the requisite knowledge even earlier. According to the CBA, only the Unit Health and Safety Representative has authority -5- to file a health and safety grievance. Scott's affidavit indicates he was frustrated with these CBA-prescribed special procedures for health and safety violations and instead filed a health and safety grievance, wrongly, through the collective bargaining grievance system. Scott further indicated he knew he was using the wrong procedure for this type of grievance, stating: "[m]y decision to try the regular grievance process was a deliberate one, not one out of ignorance. I had no choice but to bypass the health and safety process . . . ." Therefore, the December 1995 health and safety grievance, filed incorrectly in the collective bargaining system, would be futile. Thus, Scott knew, or reasonably should have known, when he filed the grievance in December that he was using the wrong procedure to file this health and safety grievance, and that it would likewise not be pursued by UAW. The date of the grievance's formal denial does not support the argument that the cause of action accrued only after this action was taken. Scott's grievance was not formally denied until September 27, 1996, more than a month after this suit was filed. Thus, Scott's claim is time-barred under the six-month statute of limitations. Additionally, because Clark did not file any grievance during this relevant time period and instead relies on Scott's December 1995 grievance, Clark's claims are also barred by the statute of limitations. In order to prevail against either the union or employer, the employee must prove both the breach of duty of fair representation and the breach of the collective bargaining agreement. Vaca, 386 U.S. at 186-87. The class is barred from proving the breach of duty of fair representation by the union, therefore summary judgment in favor of Ford is also proper. See Barlow v. American Nat'l Can Co., 173 F.3d 640, 642 (8th Cir. 1999) ("Because the union's breach of duty is a necessary element of a § 301 claim against the employer, the employee's claims against both typically accrue, for statute of limitations purposes, when the union's breach of duty injures the employee."); Washington, 130 F.3d at 827 ("Because summary judgment in favor of the union was -6- appropriate, we conclude summary judgment in favor of [the employer] was likewise proper."). Accordingly, we reverse the district court's ruling denying UAW's motion for summary judgment and affirm the district court's grant of summary judgment in favor of Ford. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -7- 

449 F.2d 347 UNITED STATES of America, Plaintiff-Appellee,v.Addison CHANDLER, Defendant-Appellant. No. 30775 Summary Calendar.* United States Court of Appeals,Fifth Circuit. Nov. 2, 1971. Clyde Hurlbert, Biloxi, Miss., Courtappointed, for defendant-appellant. Robert E. Hauberg, U. S. Atty., E. Donald Strange, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee. Before BELL, AINSWORTH and GODBOLD, Circuit Judges. PER CURIAM: Affirmed. See Local Rule 21.1 * Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409 1 See NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966

749 F.2d 300 53 USLW 2247, 40 Fed.R.Serv.2d 1 In re BENDECTIN PRODUCTS LIABILITY LITIGATION, Petitioner. No. 84-3710. United States Court of Appeals,Sixth Circuit. Argued Oct. 23, 1984.Decided Oct. 26, 1984.Rehearing and Rehearing En Banc Denied Dec. 14, 1984. Irving R.M. Panzer (argued), Washington, D.C., Barry J. Nace, Bethesda, Md., for appellant. Stanley M. Chesley, Cincinnati, Ohio, for respondent. Frank C. Woodside, III (argued) (Merrell-Dow), Dinsmore & Shohl, Cincinnati, Ohio, for appellee. James G. Butler (Class), Raymond L. Henke, Butler, Jefferson, Dan & Allis, Los Angeles, Cal., for petitioner. James G. Butler (Marco Cordova), Butler, Jefferson, Dan & Allis, Los Angeles, Cal., Richard H. Middleton, Jr., N. Calhoun Anderson, Jr., Middleton & Anderson P.C., Savannah, Ga., Gene E. Smith, Sherman Oaks, Cal., Leonard W. Schroeter, Schroeter, Goldmark & Bender, Seattle, Wash., Thomas H. Bleakley, Robert A. Tyler, Detroit, Mich., George S. Alfieris, Sherman Oaks, Cal., Stephen B. Murray, New Orleans, La., Barry Regar, Barry Regar, A Professional Law Corp., Palm Springs, Cal., Richard Warren Mithoff, Tommy Jacks, Doggett & Jacks, Houston, Tex., Elaine Mittleman, Falls Church, Va., Mari C. Bush, Boulder, Colo., Marceline Lasater, Gibbins, Burrow & Bratton, Austin, Tex., W. Russell Van Camp, Van Camp, Bennion & Kelleher, Spokane, Wash., Don L. Dees, Tulsa, Okl., Gary O. Galiher, Stanford H. Masui, L. Richard DeRobertis, Honolulu, Hawaii, John M. Anton, Rodney A. Klein, Inc., A Professional Corporation, Sacramento, Cal., for parties in support of petition for writ of mandamus. Arthur H. Bryant, Trial Lawyers for Public Justice, P.C., Washington, D.C., Herbert B. Newberg, Herbert B. Newberg, P.C., Philadelphia, Pa., for amicus curiae Trial Lawyers for Public Justice. Before KEITH and MARTIN, Circuit Judges, and JOHNSTONE, District Judge.* BOYCE F. MARTIN, Jr., Circuit Judge. 1 Petitioners seek a writ of mandamus ordering the district court to vacate its order certifying a class action pursuant to Federal Rule of Civil Procedure 23(b)(1). 102 F.R.D. 239 (S.D.Ohio 1984). For the reasons stated below, the petition shall be granted, and the writ shall be issued. I. 2 This case is just one stage in a massive products liability lawsuit against Merrell Dow Pharmaceuticals, Inc., the manufacturer of the drug Bendectin. Bendectin is a prescription drug developed to relieve morning sickness in pregnant women.1 Numerous plaintiffs have filed claims in both federal and state court alleging that they suffer from birth defects as a result of their in utero exposure to Bendectin. 3 The present controversy has its roots in a transfer order of the Judicial Panel on Multidistrict Litigation in early 1982. 533 F.Supp. 489. Pursuant to that order, all Bendectin actions pending in federal courts were transferred to the Southern District of Ohio for consolidated pretrial proceedings. Shortly after the transfer, a five-person Plaintiffs' Lead Counsel Committee was formed to coordinate discovery efforts for all plaintiffs in federal court. 4 Over the next year, many other cases were transferred to the Southern District of Ohio, and many more cases were filed in that court as original actions.2 In September 1983, the district judge issued an order to show cause why the cases should not be certified as a class action under Federal Rule of Civil Procedure 23 or, in the alternative, be consolidated for trial on common issues of liability pursuant to Federal Rule of Civil Procedure 42. After the parties responded to this order, the district judge held in November 1983 that the action was not appropriate for class certification and instead consolidated the cases for trial pursuant to Rule 42. The consolidation order, however, only included those cases that had been filed in Ohio federal courts, and the cases that had been transferred to the Southern District were to be returned to their original venue for trial unless the plaintiffs agreed to the consolidated trial. 5 The consolidated trial began June 11, 1984, and a jury was impaneled. Because of serious settlement negotiations between the Plaintiffs' Lead Counsel Committee and Merrell Dow, the district court recessed the trial on June 18 and certified a class for settlement purposes under Federal Rule of Civil Procedure 23(b). Merrell Dow has apparently made a settlement offer of $120 million, and a majority of the Plaintiffs' Lead Counsel Committee tentatively favor the settlement offer.3 A hearing is scheduled for October 31, 1984, to determine the proper allocation of the settlement among subclasses, and a fairness hearing on the settlement is scheduled for November 30. 6 In the order certifying the class, the district judge found that all four requirements of Rule 23(a) were easily met. The court also found that the requirements of Rule 23(b)(1)(A) and (B) were met.4 With respect to Rule 23(b)(1)(A), the district court stated that "continued case by case determinations will inevitably result in varying adjudications which will impose inconsistent standards of conduct upon the defendant." The district judge found 23(b)(1)(B) to have been met because "there is a risk that a limited fund may exist from which judgments can be satisfied." The district judge then certified a "non-opt out" class for settlement purposes of all persons exposed to Bendectin. 7 The district judge also subdivided the class into Subclasses A and B. Subclass A consists of all persons who had filed suit prior to the class certification order. Subclass B encompasses all persons who had not filed suit by that date. 8 Shortly after the certification order, several of the individual plaintiffs filed a petition with this Court for a writ of mandamus to vacate the district court's certification order. After the filing of the petition, a substantial number of plaintiffs has joined in the petition for the writ. Merrell Dow and a majority of the Plaintiffs' Lead Counsel Committee are opposing the petition for mandamus. II. 9 This Court clearly has the power to issue a writ of mandamus pursuant to the All Writs Statute, 28 U.S.C. Sec. 1651. EEOC v. K-Mart Corp., 694 F.2d 1055, 1061 (6th Cir.1982); United States v. Harper, 729 F.2d 1216, 1221 (9th Cir.1984). The petitioners, however, bear a heavy burden in showing that mandamus is the proper remedy. Mandamus is an extraordinary remedy, Kerr v. United States District Court for the Northern District of California, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976), and it will only be granted when the petitioner shows that "its right to issuance of the writ is 'clear and indisputable.' " In re Post-Newsweek Stations, Michigan, Inc., 722 F.2d 325, 329 (6th Cir.1983) (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953)). "[O]nly exceptional circumstances amounting to a judicial 'usurpation of power' will justify the invocation of this extraordinary remedy." Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967).5 10 While recognizing that the Supreme Court has admonished the circuit courts to issue writs of mandamus only in the most extraordinary circumstances, we believe that this admonition is only "a starting point in the effort to develop a specific framework which can assist when practical applications of the generalities is required." Bauman v. United States District Court, 557 F.2d 650, 654 (9th Cir.1977). Unfortunately, this Court has not defined such a framework because we have not been faced with a case that has called for a detailed examination of the writ. The Ninth Circuit, however, in an illuminating opinion, has identified the appropriate guidelines for the issuance of the writ in the class certification context. Bauman, 557 F.2d 650.6 Because we find the analysis of Bauman to be very persuasive, we shall apply it to the case at hand. 11 In Bauman the plaintiff in a class action proceeding sought a writ of mandamus to modify the district judge's order certifying a class under Rule 23(b)(2). In considering the petition, the Ninth Circuit outlined five guidelines, which it had distilled from the case law,7 to help decide if the issuance of the writ was proper. They are:(1) The party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired. 12 (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (This guideline is closely related to the first). 13 (3) The district court's order is clearly erroneous as a matter of law. 14 (4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules. 15 (5) The district court's order raises new and important problems, or issues of law of first impression. 16 Bauman, 557 F.2d at 654-55 (citations omitted). 17 As the Bauman court recognized, however, "the guidelines are cumulative and may not all point to the same conclusion." In re Cement Antitrust Litigation (MDL No. 296), 688 F.2d 1297, 1301 (9th Cir.1982), aff'd sub nom. Arizona v. United States District Court for the District of Arizona, 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983). "Rarely if ever will a case arise where all the guidelines point in the same direction or even where each guideline is relevant or applicable." Bauman, 557 F.2d at 655. In many cases, "a proper disposition will often require a balancing of conflicting factors." Id. 18 With regard to the first guideline, the petitioners clearly cannot challenge the certification by direct appeal. This Court has already rejected a direct appeal of the certifying order in this case. Schreier v. Merrell Dow Pharmaceutical, Inc., 745 F.2d 58 (6th Cir.1984). The opposition to the petition argues, however, that the plaintiffs can challenge the certification order by appealing the settlement, if it is approved by the district court. As we shall discuss next, the petitioners would be prejudiced by having to wait for such an appeal, and therefore such an appeal is an inadequate remedy. 19 The petitioners in this case clearly would be prejudiced by having to wait for an appeal from a settlement order. If this class certification is allowed, these plaintiffs would have to expend time and resources contesting a settlement offer that is being forced on them by Merrell Dow and the majority of the Plaintiffs' Lead Counsel Committee. Many of these plaintiffs have spent a considerable amount of their resources preparing for trial, and now that their trials are at hand, they would be forced to direct their attention to a settlement offer which they feel is totally inadequate. 20 Moreover, the subdivision of the class will greatly prejudice a number of the plaintiffs. Many of the current plaintiffs and prospective plaintiffs have retained counsel who are familiar with the Bendectin litigation, and thus several counsel are representing more than one plaintiff. Counsel whose clients fall in both Subclass A and Subclass B cannot possibly represent both classes as the classes are inherently in conflict with each other for their share of the settlement.8 If this certification is permitted, many plaintiffs who wish to challenge the settlement will have to retain counsel who may be unfamiliar with their cases. 21 Finally, several of the plaintiffs may be prejudiced by the stay of state discovery proceedings that accompanied the certification order. This stay, in conjunction with the uncertainty caused by the certification, has delayed state proceedings, and at least one plaintiff may lose his claim as a result.9 22 The next guideline is whether the district court's order is clearly erroneous as a matter of law. The petitioners claim that certification is erroneous because a certification for settlement purposes only is not allowable, because the four requirements of Rule 23(a) are not met, and because Rule 23(b)(1) is not satisfied. We find that the district judge's determinations as to Rule 23(b)(1) are clearly erroneous, and we therefore do not address the other issues.10 23 Rule 23(b)(1)(A) provides that class actions are maintainable if a separate action would create a risk of "inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class." The fact that some plaintiffs may be successful in their suits against a defendant while others may not is clearly not a ground for invoking Rule 23(b)(1)(A). McDonnell Douglas Corp. v. United States District Court for the Central District of California, 523 F.2d 1083, 1086 (9th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976); In re "Agent Orange" Product Liability Litigation, 100 F.R.D. 718, 724-25 (E.D.N.Y.1983), petition for mandamus denied sub nom. In re Diamond Shamrock Chemicals Co., 725 F.2d 858 (2d Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984). The class certification in this case therefore cannot stand on this ground. 24 The district judge, however, apparently did not rely solely on the possibility of varying adjudications because he also cited Hernandez v. Motor Vessel Skyward, 61 F.R.D. 558 (S.D.Fla.1973), aff'd mem., 507 F.2d 1278 (5th Cir.1975), to support his conclusion as to Rule 23(b)(1)(A). In Hernandez, the district judge certified a class under Rule 23(b)(1)(A) on the ground that the doctrine of collateral estoppel might bind the defendant on issues of liability if any plaintiff were to win a suit against it. Irrespective of the merits of this argument as a ground for Rule 23(b)(1)(A) certification, this concern has been eliminated by the Supreme Court's curtailment of the use of offensive collateral estoppel in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).11 The district court therefore failed to establish any grounds for certification under Rule 23(b)(1)(A).12 25 With respect to Rule 23(b)(1)(B), the district judge stated that there was a limited fund from which the plaintiffs could be compensated for their claims and therefore adjudications by earlier plaintiffs could "as a practical mater be dispositive of the interests of the other members [of the class] not parties to the adjudications." Fed.R.Civ.P. 23(b)(1)(B). This limited fund theory has been endorsed by several courts. In re Northern District of California, Dalkon Shield IUD Product Liability Litigation, 693 F.2d 847, 851 (9th Cir.1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983); In re "Agent Orange" Product Liability Litigation, 100 F.R.D. at 725. See also Fed.R.Civ.P. 23 advisory committee note to 1966 amendments. The district court was therefore not clearly erroneous as a matter of law to hold that a limited fund is a justification for a class action under a Rule 23(b)(1)(B). 26 The district court, however, was clearly erroneous as a matter of law in the method it used to determine that there was a limited fund. The certification order states without support "that there is a risk that a limited fund may exist from which judgments can be satisfied." No findings were made on the record as to this conclusion, and the petitioners in this case were given no opportunity to dispute whether there was a limited fund.13 27 In deciding whether a limited fund would subvert the rights of some plaintiffs, the courts have differed over whether the proponent of the class certification must show that a limited fund will "necessarily" affect the plaintiffs' claims, Dalkon Shield IUD Product Liability Litigation, 693 F.2d at 852, or whether a "substantial probability" will suffice. In re "Agent Orange" Product Liability Litigation, 100 F.R.D. at 726. Irrespective of the proper test, the district court, as a matter of law, must have a fact-finding inquiry on this question and allow the opponents of class certification to present evidence that a limited fund does not exist.14 Dalkon Shield IUD Product Liability Litigation, 693 F.2d at 852. See also In re "Agent Orange" Liability Litigation, 100 F.R.D. at 727. Because the district judge in this case failed to make any such finding, the certification was clearly erroneous as a matter of law.15 28 The fourth consideration of Bauman is whether the district court's order is an oft-repeated error or manifests a persistent disregard of the federal rules. Of the five guidelines, this is the least applicable to this case. This is clearly not a case where the district judge is persistently disregarding the federal rules. This error is also not an oft-repeated one because, fortunately, mass tort litigation does not frequently occur. For two reasons, however, the absence of this factor does not mean that a writ of mandamus is inappropriate. 29 First, as was discussed above, the Bauman court recognized that all the guidelines do not have to point in the same direction for the issuance of the writ to be proper.16 Bauman, 557 F.2d at 650. In support of this statement, the Ninth Circuit pointed to Green v. Occidental Petroleum Corp., 541 F.2d 1335 (9th Cir.1976), a case in which the Ninth Circuit issued a writ of mandamus to vacate a class certification under Rule 23(b)(1) although there was no evidence that the district court had made an oft-repeated error. In a case such as this, where all of the other guidelines overwhelmingly support the propriety of the writ, we do not believe that the absence of this factor is controlling. 30 Second, we feel that this guideline is not as crucial to the resolution of the case as are the other guidelines. The Supreme Court has approved the use of the writ to review unusual and important procedural questions, Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), and the Fifth Circuit has concluded that the writ can be used as a "one-time only device to settle new and important problems that might have otherwise evaded expeditious review." In re EEOC, 709 F.2d 392, 394 (5th Cir.1983). See generally 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice & Procedure Sec. 3934, at 235 (1977) (arguing that the courts should not distinguish between persistent errors and important novel questions in their use of mandamus). Because the issues presented in this case are new and very important, as we will discuss in connection with the next guideline, we believe that mandamus can be appropriate even though a recurring problem is not involved.17 31 The final guideline is whether the district court's order raises issues of first impression and creates new and important problems. Several of the issues raised by the class certification are of first impression in this Circuit. This Court has never been faced with a non-opt out class certification for settlement purposes only. Moreover, the sheer magnitude of the case makes the disposition of these issues crucial as several hundred litigants are waiting for a decision before proceeding with their cases. 32 Based on these guidelines, we find that the issuance of a writ of mandamus is appropriate in this case. Although we shall issue the writ, we realize that the district judge has been faced with some very difficult problems in this case, and we certainly do not fault him for attempting to use this unique and innovative certification method. On pure policy grounds, the district judge's decision may be commendable, and several commentators have argued that Rule 23 should be used in this manner. See, e.g., Note, Class Certification of Mass Accident Cases under Rule 23(b)(1), 96 Harv.L.Rev. 1143 (1983). Because of the situation presented by this case, however, we conclude that a writ of mandamus vacating the certification order of the district court should be issued. 33 So ordered. * Honorable Edward H. Johnstone, United States District Court for the Western District of Kentucky, sitting by designation 1 In 1983, Merrell Dow ceased the production and marketing of Bendectin 2 In his order certifying a class, the district judge stated that over five hundred lawsuits concerning Bendectin were pending in the Southern District of Ohio 3 Two of the members of the Plaintiffs' Lead Counsel Committee oppose the settlement, and one of these dissenting members appeared at argument in favor of the writ of mandamus 4 Federal Rule of Civil Procedure 23(b) states in pertinent part: (b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests .... 5 The petitioners argue that the district judge wrongfully extended his power by forcing them into a "non-opt out" class that is impermissible under Federal Rule of Civil Procedure 23. As we will discuss, the district court's application of Rule 23 was erroneous. The difficulty, however, is in distinguishing between errors that are merely reversible and not subject to mandamus, Will v. United States, 389 U.S. 90, 98 n. 6, 88 S.Ct. 269, 275 n. 6, 19 L.Ed.2d 305 (1967), and those errors that are of such gravity that mandamus is proper. We believe that the five-part framework that we adopt is the best method to make such a distinction 6 For recent applications of the Bauman analysis, see United States v. Harper, 729 F.2d 1216, 1221 (9th Cir.1984); In re Cement Antitrust Litigation (MDL No. 296), 688 F.2d 1297, 1301 (9th Cir.1982), aff'd sub nom. Arizona v. United States District Court for the District of Arizona, 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983) 7 The guidelines outlined in Bauman are based on an extensive review of applicable Supreme Court precedent and Ninth Circuit case law. Although the Supreme Court has considered the proper use of the writ of mandamus on two occasions since Bauman, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980); Will v. Calvert Fire Insurance Co., 437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978), neither of those cases suggest that the guidelines utilized in Bauman are no longer appropriate 8 Because the size of Subclass B cannot be presently determined, members of Subclass A have the incentive to try to minimize the size of Subclass B in order to increase Subclass A's share of the settlement 9 This plaintiff filed suit against Merrell Dow in California state court on August 14, 1979. Under California law, the case must be brought to trial within five years from the date of the filing of the complaint or the case is dismissed. Cal Civ.Proc.Code Sec. 583. The plaintiff was able to get an extension of the five-year rule until December 9, 1984, but unless a trial begins by that date, the plaintiff's claim may be lost. The delays caused by this class certification order may therefore cause this plaintiff to lose his claim 10 We do note that there is precedent for the proposition that a class can be certified for settlement purposes only. See, e.g., In re Beef Industry Antitrust Litigation, 607 F.2d 167 (5th Cir.1979), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981). The Beef Industry case involved the certification of a temporary settlement class prior to certification of a class for trial. In this case, the district judge certified a class for settlement purposes after having rejected the same class for trial purposes. The district judge therefore implicitly held that the standards for certifying a class are different depending on whether the class is for settlement or whether it is for trial. Because we decide the case on other grounds, we do not consider whether this holding is correct 11 In Parklane Hosiery, the Supreme Court explicitly stated that offensive collateral estoppel could not be used in mass tort litigation. Parklane Hosiery, 439 U.S. at 330 & n. 14, 99 S.Ct. at 651 & n. 14 12 Parklane Hosiery also explains why the opposition to the writ's reliance on Union Light, Heat and Power Co. v. United States District Court, 588 F.2d 543 (6th Cir.1978), cert. dismissed, 443 U.S. 913, 99 S.Ct. 3103, 61 L.Ed.2d 877 (1979), is misplaced. In Union Light, this Court refused to issue a writ of mandamus to vacate a class certification that relied in part on Hernandez. Because the law as to offensive collateral estoppel was unsettled at that time and therefore Hernandez was questionably good law, the certification in that case was not clearly erroneous as to Rule 23(b)(1)(A) 13 If this case were on appeal, the proper remedy would be to remand the case for a finding in this regard. Because the case is before us on a petition for a writ of mandamus, our only recourse is to issue the writ 14 If the district court had made a factual finding on this issue, a writ of mandamus would not be the proper remedy. Factual errors cannot justify the issuance of the writ 15 For these reasons, the case is distinguishable from Union Light, Heat and Power Co. v. United States District Court, 588 F.2d 543 (6th Cir.1978), cert. dismissed, 443 U.S. 913, 99 S.Ct. 3103, 61 L.Ed.2d 877 (1979). See supra n. 12. In that case, the district judge at least made some finding on the record as to the amount of possible claims and the net worth of the company. Coburn v. 4-R Corp., 77 F.R.D., 43, 45 (E.D.Ky.1977), petition for mandamus denied sub nom. Union Light, Heat and Power Co. v. United States District Court, 588 F.2d 543 (6th Cir.1978), cert. dismissed, 443 U.S. 913, 99 S.Ct. 3103, 61 L.Ed.2d 877 (1979) 16 In fact, the fourth and fifth guidelines can seldom be consistent with each other. A district court decision that presents issues of first impression rarely will also involve an oft-repeated error 17 We do note, however, that the district judge in this case has been faced with a similar problem on a prior occasion. In Coburn v. 4-R Corp., 77 F.R.D. 43 (E.D.Ky.1977), the district judge certified a class under Rule 23(b)(1) in a mass tort lawsuit. See supra nn. 12 & 14

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ ROGER J. BROWN, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. ____________________ 2010-3175 ______________________ Appeal from the Merit Systems Protection Board in No. DE0432090182-I-3. ______________________ JUDGMENT ______________________ MINNETTE BURGES, Burges Law Offices, of Tucson, Arizona, argued for petitioner. JESSICA R. TOPLIN, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES, JR., Assistant Director. ______________________ THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER CURIAM (RADER, Chief Judge, LOURIE and O’MALLEY, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT May 10, 2011 /s/ Jan Horbaly Date Jan Horbaly Clerk 

117 F.3d 1433 Henryv.Gwinnett County* NO. 96-9005 United States Court of Appeals,Eleventh Circuit. June 16, 1997 Appeal From: N.D.Ga. ,No.95018491CVJTC 1 Affirmed. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

472 F.3d 817 Dorlan Wayne WILLARD, Plaintiff-Appellant,v.FAIRFIELD SOUTHERN COMPANY, INC., Birmingham Southern Railroad Company, Defendants-Appellees. No.A 05-14279. No. 06-12455. United States Court of Appeals, Eleventh Circuit. December 12, 2006. COPYRIGHT MATERIAL OMITTED J. Harry Blalock, Blalock & Blalock, P.C., Birmingham, Al, for Willard. Michael Keith Gann, Huie, Fernambucq & Stewart, Birmingham, AL, for Defendants-Appellees. Appeals from the United States District Court for the Northern District of Alabama. Before ANDERSON and DUBINA, Circuit Judges, and VINSON,* District Judge. DUBINA, Circuit Judge: 1 Appellant, Dorlan Wayne Willard ("Willard"), appeals the district court's orders denying his Rule 60(b) motion and granting summary judgment to defendants/appellees, Fairfield Southern Company, Inc. ("Fairfield") and Birmingham Southern Railroad Company ("BSRR"), the parent company of Fairfield, on Willard's Federal Employer's Liability Act ("FELA") claim.1 For the reasons that follow, we affirm the district court's orders. I. BACKGROUND A. Facts 2 The district court found the following undisputed facts. In 1983, U.S. Steel Fairfield Works ("Fairfield Works") transferred its rail operations to Fairfield, a newly formed corporation, which became a subsidiary of BSRR. BSRR is a common carrier by rail that holds itself out to the public for hire. Fairfield and BSRR share a Board of Directors, a trainmaster, office address, and emergency phone number. Fairfield pays BSRR a management fee for supervision of Fairfield's employees. Fairfield's trainmen and acting tower supervisors are the only Fairfield employees who work solely for Fairfield. All other Fairfield supervisors are also BSRR employees. 3 Fairfield provides rail service to U.S. Steel Corporation ("U.S. Steel"), to two vendors of Fairfield Works whose facilities are located on U.S. Steel's property (Fritz Enterprises and Tube City), and to U.S. Steel Mining Company, LLC ("U.S. Steel Mining"), a wholly owned subsidiary of U.S. Steel. Fairfield has separate and distinct contracts with Fairfield Works, U.S. Steel Mining, Fritz Enterprises, and Tube City. No common carrier, including BSRR, is a party to those contracts. Fairfield directly invoices its customers, and they, in turn, directly pay Fairfield for its services. Fairfield maintains a separate account which is used for funding its payroll and payments to vendors. Fairfield does not publish rate tariffs and does not receive any rate division from any common carrier railroad. 4 Furthermore, Fairfield does not own or lease any railroad tracks, and it does not maintain any wharves, docks, or other public facilities for the receipt or handling of freight. Fairfield does not link two common carriers. It operates only on tracks owned by the customers it serves. Nor does it operate over the tracks of any common carrier railroad, including BSRR. 5 In addition, Fairfield employees pay employment taxes under the Social Security Act, not the Railroad Retirement Act, and the employees are eligible to receive Alabama state unemployment benefits rather than benefits under the Railroad Unemployment Insurance Act. The United Steel Workers of America represents Fairfield's employees and the National Labor Relations Act governs their employment relationship. By contrast, the United Transportation Union and the Brotherhood of Locomotive Engineers represent BSRR train operating personnel, and the Railway Labor Act governs their employment relationship with BSRR. The Occupational Safety and Health Commission regulates Fairfield's train operations, while the Federal Railroad Administration regulates BSRR's train operations. B. Procedural History 6 On September 25, 2002, Willard filed suit under the FELA, 45 U.S.C. § 51 (1986), against his employer, Fairfield, and its parent company, BSRR, for injuries that he allegedly incurred at work. Willard filed a motion for partial summary judgment, and Fairfield and BSRR filed motions for summary judgment. Several months later, Willard filed a Rule 56(f) motion to reopen discovery because he learned that the Federal Railroad Administration ("FRA") was investigating whether Fairfield was within its jurisdiction. The district court reopened discovery at Willard's request, and thereafter twice extended the time for reopened discovery because the FRA did not rule on the Fairfield matter in a timely fashion. By March 17, 2005, when the FRA had still not ruled on the matter, the district court took the motions for summary judgment under submission with the evidentiary material available as of that date. 7 In their motion for summary judgment, Fairfield and BSRR argued that Fairfield is an in-plant railroad not subject to the FELA; that Fairfield is not the alter ego of BSRR; and in any event, Willard was judicially estopped from pursuing any claims under the FELA because he already had accepted full medical benefits under the Alabama Workers' Compensation Act plus indemnity payments for his alleged injuries. Willard countered in his motion for summary judgment that Fairfield is subject to the FELA because it, like BSRR, is a common carrier by rail engaged in interstate commerce. Willard also claimed that his suit against BSRR was appropriate because Fairfield was BSRR's alter ego. 8 The district court granted summary judgment in favor of Fairfield and BSRR, finding that Fairfield is a private carrier, not a common carrier subject to the FELA. The district court also found that Fairfield is not the alter ego of BSRR. In light of its findings and conclusions, the district court declined to consider Fairfield and BSRR's estoppel argument. Willard filed a timely appeal. 9 While Willard's appeal from the district court's order on summary judgment was pending, he filed a Rule 60(b) motion to set aside final summary judgment, asserting that a letter from the FRA was "newly discovered evidence" which entitled him to relief from the court's prior summary judgment order. The district court requested briefing on the motion, then conducted oral argument on the matter. Following argument, the district court denied Willard's Rule 60(b) motion, finding that the FRA letter did not change its prior finding that Fairfield is a private carrier not subject to the FELA. Willard also appeals this order. II. ISSUES 10 1. Whether the district court erred in granting summary judgment to Fairfield and BSRR because it found that Fairfield is a private carrier not subject to the FELA and that Fairfield is not the alter ego of BSRR. 11 2. Whether the district court abused its discretion in denying Willard's Rule 60(b) motion. III. STANDARDS OF REVIEW 12 This court reviews de novo a district court's order granting a motion for summary judgment, applying the same legal standards as the district court. Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir.2001). 13 This court reviews the district court's order on a Rule 60(b) motion for abuse of discretion. Am. Bankers Ins. Co. of Fla. v. Nw. Nat'l Ins. Co., 198 F.3d 1332, 1338 (11th Cir.1999). IV. DISCUSSION A. Summary Judgment Motion 1. Common Carrier 14 The FELA creates a cause of action for injury sustained when the plaintiff is an employee and the defendant is a "common carrier by railroad" engaging in commerce between any of the several states or territories. 45 U.S.C. § 51. Section 51 provides: 15 Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or . . . any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. 16 Id. The term "common carrier by railroad" has been defined to mean "one who operates a railroad as a means of carrying for the public, — that is to say, a railroad company acting as a common carrier." Edwards v. Pac. Fruit Express Co., 390 U.S. 538, 540, 88 S.Ct. 1239, 1240, 20 L.Ed.2d 112 (1968) (quoting Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187-88, 41 S.Ct. 93, 98, 65 L.Ed. 205 (1920)). More recently, courts have noted that a common carrier is 17 one who holds himself out to the public as engaged in the business of transportation of persons or property from place to place for compensation, offering his services to the public generally. The distinctive characteristic of a common carrier is that he undertakes to carry for all people indifferently, and hence is regarded in some respects as a public serv[a]nt. 18 Kieronski v. Wyandotte Terminal R.R. Co., 806 F.2d 107, 108 (6th Cir.1986) (quoting Kelly v. Gen. Elec. Co., 110 F.Supp. 4, 6 (E.D.Pa.), aff'd, 204 F.2d 692 (3d Cir. 1953)). It is the plaintiff's burden to show that the defendant is a common carrier, and the plaintiff "therefore must present affirmative evidence indicating such." Mickler v. Nimishillen and Tuscarawas Ry. Co., 13 F.3d 184, 189 n. 3 (6th Cir. 1993). 19 Willard failed to meet his burden of presenting affirmative evidence that Fairfield is a common carrier. The evidence indicates that Fairfield does not hold itself out to the public as providing rail service for hire. See Sullivan v. Scoular Grain Co., 930 F.2d 798, 800 (10th Cir.1991) (relying on Wells Fargo and Edwards to conclude that although defendants received grain shipped by railroad companies and stored grain adjacent to railroad tracks owned and maintained by railroad companies, none of the defendants operated a going railroad that carried for the public; thus, defendants were not common carriers subject to the FELA). Instead, the evidence shows that Fairfield is an in-plant railroad that transports products within the confines of its property. "Industries operating in-plant rail facilities for their own benefit and not offering transportation to the public for a fee are not considered common carriers." Iverson v. So. Minn. Beet Sugar Co-op, 62 F.3d 259, 263 (8th Cir.1995). In a situation where an industry maintains a complicated intra-plant railroad system, such rail operations will be regarded as plant facilities rather than those of a common carrier. See Lone Star Steel Co. v. McGee, 380 F.2d 640, 644 (5th Cir.1967).2 "The movement of freight within the plant is not common carriage, but rather industrial plant usage." Id. 20 Furthermore, considering the factors enunciated by the court in Lone Star to determine whether an entity is a common carrier, we conclude that Fairfield is not a common carrier.3 The Lone Star factors are whether (1) the entity is actually performing rail service; (2) the service being performed is part of the total rail service contracted for by a member of the public; (3) the entity is performing as part of a system of interstate rail transportation by virtue of common ownership between itself and a railroad or by a contractual relationship with a railroad and hence such entity is deemed to be holding itself out to the public; and (4) remuneration for the services performed is received in some manner, such as a fixed charge from a railroad or by a percent of the profits, from a railroad. Id. at 647. Although there is no dispute that Fairfield performs rail service, the other three Lone Star factors are not present in this case. 21 Fairfield does not perform common carrier services for BSRR. Fairfield is a private carrier that hauls for clients "pursuant to individual contracts, entered into separately with each customer." Kieronski, 806 F.2d at 109. Fairfield performs rail service for its in-plant scrap recyclers, Tube City and Fritz Enterprises, pursuant to contracts with those facilities. Fairfield's rail service for these companies is performed only within its own boundaries. Thus, the second and third Lone Star factors are not satisfied. 22 With regard to the fourth Lone Star factor — remuneration for the services performed — the companies within Fairfield's property pay Fairfield directly, and Fairfield directly invoices the facilities. Fairfield does not collect payment from any common carrier railroad, and it does not hold itself out to the public for a fee. See Iverson, 62 F.3d at 264 (applying the Lone Star factors and affirming summary judgment in FELA case because the in-plant rail operation of the employer was not offering transportation to the public for a fee and thus was not considered a common carrier). Thus, applying these factors, we conclude that Fairfield is not a common carrier, but a private carrier performing services via direct contracts with customers. 2. Alter Ego 23 The FELA provides that a covered railroad is liable for negligently causing the injury or death of any person "while he is employed" by the railroad. 45 U.S.C. § 51. Willard contends that BSRR is a proper defendant to his FELA claim because Fairfield is the alter ego of BSRR. We disagree. 24 It is undisputed that Fairfield, not BSRR, employed Willard as one of the ground crew. Willard's job at Fairfield was to move rail cars from point to point, switch out cars, operate and ride on train engines, and pick up and deliver goods to customers and to BSRR. Willard admitted in his deposition that he worked for Fairfield and had never worked for BSRR. Additionally, under Alabama law, BSRR is not Willard's employer because it did not so control the operation of Fairfield as to make it a mere adjunct, instrumentality, or alter ego of BSRR. See Duff v. So. Ry. Co., 496 So.2d 760, 762 (Ala.1986). In order to demonstrate that Fairfield is the alter ego of BSRR, Willard would have to produce evidence that there was, for example, a commingling of funds, or a failure to follow corporate formalities, or under-capitalization. See Perry v. Brakefield, 534 So.2d 602, 605 (Ala.1988); Forester & Jerue, Inc. v. Daniels, 409 So.2d 830, 832 (Ala.1982). Willard cannot meet this burden. 25 The defendants present sufficient evidence to demonstrate that Fairfield and BSRR are financially independent. All of Fairfield's earnings come from the four in-plant customers that it serves: U.S. Steel, U.S. Steel Mining, Fritz Enterprises and Tube City. Fairfield maintains a separate account which is used to pay employees and vendors. BSRR bills its customers separately from Fairfield, and it does not share any of its common carrier revenues with Fairfield. Both entities maintain separate rule books, separate safety programs, and separate payrolls. 26 Further, the evidence demonstrates that Willard himself considers the companies to be separate and distinct. Willard is a labor union member, and as a Fairfield employee, he is represented by the United Steel Workers of America, and its contract is governed under the National Labor Relations Act. On the other hand, BSRR train operating personnel are represented by the United Transportation Union and the Brotherhood of Locomotive Engineers, and their collective bargaining agreements are governed by the Railway Labor Act. 27 Likewise, the district court found and the parties do not dispute that at the time of Willard's alleged injury, the Occupational Safety & Health Administration ("OSHA") regulated Fairfield train operations, while the FRA regulated BSRR train operations. Moreover, the district court also found undisputed that Fairfield's employees are eligible to receive Alabama state unemployment benefits, rather than benefits under the Railroad Unemployment Insurance Act, and that Fairfield's employees pay employment taxes under the Social Security Act, not the Railroad Retirement Act, as is the case with BSRR's employees. 28 Willard fails to show that Fairfield and BSRR do not, in reality, constitute separate and distinct corporate entities. Accordingly, we conclude that Fairfield is not the alter ego of BSRR, and the district court properly granted summary judgment to BSRR. B. Rule 60(b) Motion 29 Willard contends that the district court erred in denying his Rule 60(b) motion based upon a February 2006 letter from the FRA which explains that, despite prior indications from the FRA that it would not assert jurisdiction over Fairfield's operations at Fairfield, the FRA now has decided that Fairfield is subject to all FRA regulations and railroad safety statutes. Willard asserts that the FRA letter is "newly discovered evidence" warranting relief from the district court's prior summary judgment order. We disagree with Willard's contention. 30 In order to be entitled to relief based upon newly discovered evidence under Rule 60(b)(2), Willard must show that (1) the evidence is newly discovered since the trial; (2) he exercised due diligence to discover the new evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence is such that a new trial would probably produce a new result. Waddell v. Hendry County Sheriff's Office, 329 F.3d 1300, 1309 (11th Cir.2003). "A motion for a new trial under Rule 60(b)(2) is an extraordinary motion and the requirements of the rule must be strictly met." Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir.2000) (citation omitted). Willard cannot meet these requirements because the FRA letter is not evidence that would produce a new result. 31 The FRA's statutory jurisdiction is broader than FELA "common carrier" jurisdiction. Prior to 1988, the FRA's jurisdiction was limited to "common carrier" railroads. In 1988, Congress amended the Boiler Inspection Act and the Safety Appliance Act to expand the FRA's statutory jurisdiction to include all railroads, not just common carrier railroads. See 49 C.F.R., Part 209, App. A. However, the fact that the FRA exerts jurisdiction over a railroad carrier does not change a private carrier into a common carrier subject to the FELA. See, e.g., Mickler, 13 F.3d at 187-88 (noting that the purpose of the 1988 Act was to continue and expand federal regulation of railroad safety; commenting that the substitution of "railroad" for "common carrier" was done to provide uniformity in the safety requirements; and stating that the FELA continues to apply only to common carriers engaging in interstate commerce). 32 Furthermore, Willard cannot demonstrate how the FRA letter changes the facts that support our conclusion that Fairfield is a private carrier. As noted earlier, the evidence demonstrates that Fairfield meets the classic definition of a private carrier because it performs rail service pursuant to individual contracts with in-plant customers. Fairfield's rail service for the in-plant customers is performed only within Fairfield Works's boundaries. Tube City and Fritz pay Fairfield directly for its services. Fairfield neither receives nor collects rate divisions from any common carrier railroad, and it does not hold itself out to the public for a fee. All these facts support the conclusion that Fairfield is a private carrier, not a common carrier subject to the FELA. Nothing in the FRA letter changes this conclusion. Accordingly, we conclude that the district court did not abuse its discretion in denying Willard relief pursuant to Rule 60(b). V. CONCLUSION 33 The district court did not err in granting summary judgment to the defendants on the basis that Fairfield is not a common carrier and is not the alter ego of BSRR. Moreover, the district court did not abuse its discretion in denying Willard's Rule 60(b) motion because the FRA letter did not constitute "newly discovered evidence" which would entitle Willard to relief from the district court's prior summary judgment order. Accordingly, we affirm the district court's orders. AFFIRMED.4 Notes: * Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting by designation 1 Willard appealed the district court's order denying his motion for summary judgment, and this court lodged that appeal as No. 05-14279. While this appeal was pending, Willard filed a Rule 60(b) motion with the district court, asserting newly discovered evidence that he claimed entitled him to relief from the district court's prior summary judgment order. After a hearing, the district court denied the motion, and Willard appealed. This court lodged that appeal as No. 06-12455 and consolidated the appeals 2 InBonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the Fifth Circuit handed down prior to the close of business on September 30, 1981. 3 Like the court inKieronski, we do not consider the Lone Star factors to be a "test." 806 F.2d at 108. As the Lone Star court noted, this is only a list of considerations for the court to keep in mind when determining whether a carrier is a "common carrier." See Lone Star, 380 F.2d at 647. 4 Appellees/defendants filed two motions with this court: a motion to strike portions of appellant's reply brief that raise new arguments and a motion to strike appellant's supplemental authority. In his reply brief, Willard argues that BSRR is his employer under the FELA, and he argues a new "right of control" theory. Willard did not raise this issue in his initial appellate brief; rather, he argued that Fairfield was the alter ego of BSRR. Because Willard did not clearly argue a right of control theory in his initial appellate brief, we will not consider it, and we grant the motion to strike this portion of Willard's reply briefSee KMS Rest. Corp. v. Wendy's Int'l., Inc. 361 F.3d 1321, 1328 n. 4 (11th Cir.2004). We deny the motion to strike appellant's supplemental authority because the supplemental authority is the FRA letter which is the basis for Willard's Rule 60(b) motion.

FILED NOT FOR PUBLICATION JUL 12 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT VIVECA SANAI, an individual; et al., Nos. 07-36002 07-36001 Plaintiffs - Appellants, D.C. Nos. CV-02-02165-TSZ v. CV-04-01594-TSZ SASSAN SANAI, an individual; et al., MEMORANDUM * Defendants - Appellees. VIVECA SANAI, an individual; et al., Plaintiffs - Appellants, v. SASSAN SANAI, an individual; et al., Defendants - Appellees. Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding Submitted June 29, 2010 ** Before: ALARCÓN, LEAVY and PAEZ, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).  In these related appeals, Viveca, Cyrus and Fredric Sanai appeal pro se from the district court’s orders: (1) dismissing the complaints in both actions for litigation misconduct; (2) denying leave to amend the complaint in the first action; (3) imposing sanctions under Rule 11 of the Federal Rules of Civil Procedure for filing duplicative claims in the second action, (4) staying proceedings in the second action, and (5) prohibiting additional post-judgment filings in the first action. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion all orders on appeal. Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (order dismissing complaint as a sanction for misconduct); Ditto v. McCurdy, 510 F.3d 1070, 1079 (9th Cir. 2007) (order denying leave to amend); In re Itel Sec. Litig., 791 F.2d 672, 674-75 (9th Cir. 1986) (order imposing Rule 11 sanctions sua sponte); Adams v. Cal. Dep’t of Health Serv., 487 F.3d 684, 688 (9th Cir. 2007) (order staying litigation); S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 807-08 (9th Cir. 2002), 307 F.3d 794, 807-08 (9th Cir. 2002) (ruling expediting briefing schedule). We affirm. The district court properly dismissed the third amended complaint in the first action and the remaining claims in the second action as a sanction for the appellants’ litigation misconduct. See Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115-17 (9th Cir. 2004) (affirming sanction of dismissal after continued 2 discovery misconduct and defiance of courts’ orders). The misconduct warranting dismissal included: repeatedly filing notices of lis pendens in violation of the district court’s orders, failing to appear for duly noticed depositions, failing to serve a defendant with a subpoena duces tecum seeking her financial records from a third party, surreptitiously audio recording a defendant while simultaneously suing him for wiretapping, and interfering with responses to subpoenas defendants served on plaintiffs’ health care providers. See Brotby, 354 F. 3d at 1115-16. Because we affirm the district court’s orders dismissing the actions as a sanction, we do not consider the district court’s earlier orders granting summary judgment to appellees on certain claims. Cf. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063 (9th Cir. 2004). The district court properly denied the appellants’ motion for leave to file a fourth amended complaint in the first action. See Ditto, 510 F.3d at 1078-79 (amendment is available where justice requires it, as determined by whether amendment is sought in bad faith, would introduce undue delay, would prejudice the opposing party or would be futile). The district court properly sanctioned appellants under Rule 11 in the second action for filing duplicative causes of action. The court ordered appellants to show cause why they should not be sanctioned for realleging claims the court had 3 dismissed, gave them an opportunity to be heard, and thereafter made an express finding that they had acted in bad faith. See Foster v. Wilson, 504 F.3d 1046, 1052-53 (9th Cir. 2007) (before imposing Rule 11 sanctions sua sponte, district court must give the party notice including the reason for possible sanctions and an opportunity to be heard); United Nat. Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1116 (9th Cir. 2001) (sua sponte imposition of Rule 11 sanctions warranted in situations akin to contempt of court); see also Buster v. Greisen, 104 F.3d 1186, 1189-90 (9th Cir. 1997) (Rule 11 sanctions upheld where later action sought to relitigate issues resolved in earlier action, and was brought for the purpose of harassment). The district court properly stayed proceedings in the second action pending resolution of the first action. See Adams, 487 F.3d at 688 (where a district court is presiding over two cases involving the same subject matter, it may stay the second action pending resolution of the first). The district court properly prohibited appellants from filing further post- judgment motions in the first action; it duly considered and resolved several post- judgment motions and all issues were preserved for appeal. See S. Cal. Edison Co., 307 F.3d at 807-08 (expedited briefing schedule did not prevent party from 4 presenting its case and party did not establish prejudice, thus due process was not violated). This court previously affirmed the dismissal of appellants’ claim that the district court improperly refused to enjoin a state court proceeding, and we do not reconsider that claim here. See Leslie Salt Co. v. United States, 55 F.3d 1388, 1392 (9th Cir. 1995) (“Under law of the case doctrine, [] one panel of an appellate court will not reconsider matters resolved in a prior appeal to another panel in the same case.”); see also Sanai v. Sanai, Nos. 03-35797, 03-35932, 04-35041 and 04- 35881, 2005 WL 1971873, at *2 (9th Cir. Aug. 17, 2005). Appellants’ remaining contentions are unpersuasive. Appellees’ motions for leave to file a surreply and to strike are denied. AFFIRMED. 5 

97 F.3d 1468 Nereyv.Wasi* NO. 95-4945 United States Court of Appeals,Eleventh Circuit. Sept 10, 1996 1 Appeal From: S.D.Fla., No. 94-02515-CIV-UUB 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

184 Cal.App.2d 376 (1960) JACKSON TODD, Appellant, v. SOUTHERN PACIFIC COMPANY (a Corporation) et al., Respondents. Civ. No. 18719. California Court of Appeals. First Dist., Div. One. Sept. 6, 1960. Harold L. Strom and Pelton, Gunther, Durney and Gudmundson for Appellant. Bledsoe, Smith, Cathcart, Johnson & Phelps and Robert A. Seligson for Respondents. DUNIWAY, J. This is another of the many cases that have come before the appellate courts in which an unsuccessful plaintiff, injured in a collision of moving vehicles at an intersection, claims error in refusing to instruct the jury upon the doctrine of last clear chance. Counsel asserts "that the evidence in this case virtually cries out for the application of the last clear chance doctrine." Our examination of the record, *378 in the light of the controlling authorities, persuades us that the evidence makes no such cry; the cry is merely that of counsel. The doctrine was elaborately reviewed by the Supreme Court in Brandelius v. City & County of San Francisco, 47 Cal.2d 729 [306 P.2d 432], which has become the leading case upon the subject. Its restatement of the applicable formula appears at page 743 of the opinion and we do not repeat it here. We note, however, that the opinion reiterates and emphasizes certain considerations that control this case. [1] "[T]he time element is the all important factor." (P. 738.) [2] "[B]ut defendant is not liable under the doctrine unless after the time that he is chargeable with the required knowledge of the injured person's inability to escape, he 'has the last clear chance to avoid the accident by exercising ordinary care.' " (P. 741.) This is but another way of saying that the defendant must have not only a last chance, but a clear chance to avoid the accident. (Rodabaugh v. Tekus, 39 Cal.2d 290, 296, 297 [246 P.2d 663]; Doran v. City & County of San Francisco, 44 Cal.2d 477, 487 [283 P.2d 1].) [3] These rules are the basis for the oft-repeated statements of our courts that ordinarily the doctrine cannot be applied to an intersection case involving a collision between two moving vehicles, and that the doctrine "never meant a splitting of seconds when emergencies arise" (Bagwill v. Pacific Electric Ry. Co., 90 Cal.App. 114, 121 [265 P. 517], quoted in our recent decision in Kowalski v. Shell Chemical Corp., 177 Cal.App.2d 528, 529, 537 [2 Cal.Rptr. 319]). The earlier cases are collected and discussed at length in Johnson v. Sacramento Northern Ry., 54 Cal.App.2d 528 [129 P.2d 503]. Other late cases restating and applying one or both of these principles are: Hildebrand v. Los Angeles Junction Ry. Co., 53 Cal.2d 826 [3 Cal.Rptr. 313, 350 P.2d 65]; Hall v. Atchison, T. & S. F. Ry. Co., 152 Cal.App.2d 80 [312 P.2d 739]; Clarida v. Aguirre, 156 Cal.App.2d 112 [319 P.2d 20]; Nemer v. Atchison, T. & S. F. Ry. Co., 156 Cal.App.2d 445 [319 P.2d 770]; Barcelone v. Melani, 156 Cal.App.2d 631 [320 P.2d 203]; Holman v. Viko, 161 Cal.App.2d 87 [326 P.2d 551]; Hickambottom v. Cooper Transp. Co., 163 Cal.App.2d 489 [329 P.2d 609]; Miller v. Atchison, T. & S. F. Ry. Co., 166 Cal.App.2d 160 [332 P.2d 746]. We recognize that the doctrine is a "humanitarian" one (Brandelius v. City & County of San Francisco, supra, 47 Cal.2d 729, 739), in that it relieves the plaintiff from the otherwise *379 adverse consequences of his own negligence. There is always a tendency to stretch such a doctrine so as to bring within it cases that would once have been excluded from its operation. But we think that to apply it here would stretch it to the breaking point and, as we said in Kowalski, supra, "would mean that there could be no intersection collisions to which the doctrine would not apply, and would completely do away with the defense of contributory negligence in such cases" (177 Cal.App.2d at p. 533). [4] Viewed most favorably to the contention that the doctrine is applicable (Warren v. Ubungen, 177 Cal.App.2d 605, 608 [2 Cal.Rptr. 411]), the evidence discloses the following: As frequently happens, appellant suffered a retrograde amnesia at the time of trial, and had no memory of the events of the day of the accident, in exchange for which disability he is given the benefit of the presumption that he acted with due care. The result is that the only testimony of eyewitnesses comes from employees of the defendant. The accident occurred on Madison Street, in Oakland, at its intersection with certain tracks of respondent Southern Pacific Company ("S.P."). Appellant was driving a Ford truck north on Madison, which runs north and south. The time was 4:30 in the afternoon, and there is no claim that visibility was poor. As he approached the intersection, appellant had on his right an open field, across which he could see the S.P. tracks for a considerable distance. Also on his right, and about 150 feet before the first track crosses Madison, there is a round, highway type railroad crossing sign. The first two tracks ahead of appellant were Santa Fe tracks, not in use at the time. They occupy about 18 feet, and the northernmost rail of these tracks is about 40 feet south of the first S.P. rail. The first S.P. rail was thus about 208 feet north of the crossing sign. Also on the right, and about 20 feet south of the first S.P. rail is the usual white "crossbuck" type of railroad crossing sign. The first S.P. track ahead of appellant was a "drill track," 5 feet in width, used for temporary storage of box cars. On appellant's right, one box car was on this track. It was about 42 feet long, and its westerly end was about 10 feet east of the east line of Madison. On his left, a string of four similar cars was on the drill track, with the easterly end about 15 feet west of the west line of Madison. Appellant's view to the left was fully obstructed by buildings and then partially obstructed by a storage yard until he reached a point about 95 *380 feet south of the drill track, at which point he had a clear view of the S.P. tracks to his left, except as it was obstructed by the four box cars. The second S.P. track, 8 1/2 feet further north and 5 feet wide, was the main eastbound track of S.P. The next, 10 1/4 feet north of it, was the main westbound track. Still farther north was another drill track, not here involved. As appellant proceeded, there was approaching from his right, on the westbound track, a single diesel engine of the S.P. (referred to as "the engine"). It was 55 feet long and weighed 250,000 pounds. Its headlights were on, but its bell was not ringing and it did not sound its whistle. Its cab was at least 10 feet back from its front end, so that the engineer, who was on the right, could not see appellant, but the fireman, who was on the left, could and did. The throttle, the principal braking controls, and the whistle control were next to the engineer. At the same time, there was approaching from appellant's left on the eastbound track a 66-car freight train (referred to as "the train"). It was sounding its bell and its headlights were on, but it did not whistle as it approached Madison Street. Just as the cab of appellant's truck became visible to the fireman of the engine, when the truck appeared from behind the end of the single freight car on the drill track to appellant's right, the fireman saw that appellant was looking toward his left, in the direction of the train, and not toward the engine. The front of the truck was then less than 30 feet from a point at which it would, in its forward progress, intersect the path of the oncoming engine. The fireman yelled "hold it" (which means to apply the emergency brake) and the engineer did so. The left front pilotboard of the engine struck the right front of the truck, near the motor, and knocked it back onto the eastbound track, where it was struck by the train and thrown still farther south, against the crossbuck. Fortunately, appellant was thrown out of the truck by the first collision and clear of the train, so that he was not personally involved in the second collision. Appellant does not assert that all of the elements of the last clear chance doctrine were present before his truck appeared from behind the box car and the fireman saw that he was still proceeding and looking the other way. It was at that point, for the first time, that defendant "knew that plaintiff was in a position of danger and further knew, or in the exercise of ordinary care should have known, that plaintiff was unable to escape therefrom." (Brandelius v. City & County of San *381 Francisco, supra, 47 Cal.2d 729, 743.) Until then, the engine crew had a right to assume that appellant would stop and let both the train and the engine go by. (Nemer v. Atchison, T. & S. F. Ry. Co., 156 Cal.App.2d 445, 451, 452 [319 P.2d 770], and cases there cited; Powell v. Pacific Electric Railway Co., 35 Cal.2d 40, 46-47 [216 P.2d 448].) Appellant asserts that after that time, the engine crew still had a last clear chance to avoid the accident, either by stopping the engine, or by slowing it and sounding a warning which would have alerted appellant so that he would have speeded up and passed ahead of the engine. It is apparent that if, instead of speeding up, appellant had tried to stop, he would almost certainly have been struck by the train. We think that it is sheer speculation that he would have done the former rather than the latter. The record contains no evidence from which a jury could infer that appellant could have stopped short of the eastbound track, which was only between 8 and 11 feet or so from the nose of his truck, not allowing for the "overhang" of the train beyond the rails. There is no evidence as to the length or weight of the truck or the condition of the truck's brakes, as to the distance in which it could have been stopped at any given time, or as to appellant's possible reaction time. Basically, appellant's contentions rest upon mathematical calculations which in turn rest upon certain assumptions that are contrary to some of the direct evidence in the case. Appellant says that these assumptions can be made because the direct testimony was given by S.P. employees, two of whom were defendants, and all of whom were called under Code of Civil Procedure, section 2055, and appellant is not bound by their testimony. (Brandelius v. City & County of San Francisco, supra, 47 Cal.2d 729, 745.) According to the testimony, appellant was going at a constant speed of about 20 miles per hour (the engine fireman, who watched the truck for some distance before it disappeared behind the box car), or 25 miles per hour (the train engineer), or 20 miles per hour (the train fireman). The speed of the engine was placed by its engineer at 15 miles per hour. The fireman agrees. According to the engineer, the engine was about 25 feet from the crossing when the fireman yelled. The fireman, at the trial, said the engine was 25 to 35 feet east of the intersection; in his deposition, he said 45 to 50 feet. The time elapsed between the time that the fireman saw appellant emerge from behind the box car and the impact was variously *382 estimated at "only a few seconds" (by the engineer of the engine), "about three seconds" (by its fireman), "only a split second" (by the train fireman). Simple mathematics demonstrates that, if the truck was doing 20 miles per hour, it would cover the distance to the point of impact (less than 30 feet) in less than one second. (Johnson v. Sacramento Northern Ry., 54 Cal.App.2d 528, 541 [129 P.2d 503].) If its speed was 25 miles per hour, the time would be even less. Certainly this did not afford anyone a last clear chance to avoid the accident. The only evidence as to the stopping time and distance for the engine was that of a qualified expert who said that if the engine were doing 15 miles per hour, it could be stopped in 112 feet, on a dry track. It would go 44 feet before there would be any material reduction in speed, and the rate of reduction in speed thereafter would increase as the distance traveled increased. It would take longer to stop a 66-car freight going at the same speed. In this testimony, no allowance is made for reaction time. To escape from this dilemma, appellant resorts to assumptions and speculations. The argument runs as follows: The train fireman testified that when he first saw appellant's truck, it was "alongside the Howard Supply Company storage yard," which, says appellant, would be 250 feet from the point of impact. According to scale diagrams in evidence, the distance could be not over 225 feet and could be as little as 120 feet. Yet appellant says 250 feet. The train fireman also said that at the time that he first saw the engine approaching, he was between Alice and Jackson Streets, closer to Jackson. (Jackson is the first street parallel to Madison to the west; Alice is the next.) At that time, the engine was "down around the housing project." (The housing project lies to the east of Oak Street, which is the first parallel street east of Madison, and a witness who lived there said that she lived approximately 100 feet east of Fallon Street, which is the second street to the east.) Thus, says appellant, the engine was "at least" 900 feet east of the point of impact at the approximate time the truck was 250 feet away from it. "It follows therefore," says appellant, "that the truck's speed, which was at a constant rate, was less than one-third that of the diesel, i.e., approximately five miles per hour." Since the truck had less than 30 feet to go when appellant's position of danger first became apparent to the engine fireman, this would mean that there would be something less than four seconds of time in which the engine crew could exercise *383 their last clear chance. At 5 miles per hour, the truck would travel about 7.5 feet per second. Appellant, by assuming that the engine was traveling more than three times as fast as the truck, places it 105 feet from the point of impact (three and one-half times appellant's assumed distance of 30 feet) when the fireman first became aware of appellant's position of danger. By a further set of assumptions, the engine's distance from the point of impact at that time is stretched by appellant, in his reply brief, to 200 feet. This is based upon claimed testimony of the two engineers that each train was traveling at the same speed, and that they were at one point equidistant from the crossing. Of course, on this assumption, and accepting the further assumption that appellant was only going 5 miles per hour, the engine, in order to reach the point of impact when it did, would have to be traveling at least 50 feet per second, or over 33 miles per hour, if we also assume that its brakes were never applied and it continued at a constant speed. There is no evidence whatever as to the stopping time or distance for such an engine at such a speed. This will not do. Appellant's conclusions are based upon estimates which are quite insufficient to support his calculations. In the first place, the farther away we assume the engine to have been when appellant, sitting in the cab of the truck, an unknown number of feet behind its nose, became visible from behind the box car to the engine fireman, the closer the truck would have to be to the point of impact. There is nothing in the record from which one can calculate the difference in distance that would be involved. In the second place, there is no evidence on which to base appellant's assertion that the truck was 30 feet from the point of impact; what evidence there is, including the scale diagrams, and it is not precise, would indicate 25 feet or less. In the third place, it is a pure guess to say that appellant was 250 feet from the point of impact when first seen by the train fireman. The frontage of the storage yard on Madison is about 105 feet, and the testimony is that appellant was "alongside" the yard. This could mean anywhere within that distance, and could reduce appellant's claimed 250 feet to about 120 feet. The southern corner of the yard, on Madison, adjoins a building, which would cut off the train fireman's view, and is not over 225 feet, not 250 feet, south of the south rail of the westbound track. *384 In the fourth place, the testimony is that when the train fireman first saw the engine it was "down around" the housing project. No evidence shows any such exact distance as 900 feet, or any exact distance, from the housing project to Madison Street. The testimony, by a witness looking down the track, from a moving train, at the moving engine, from a distance of 1,500 or more feet, does not support and does not purport to state any such exact assumption as to the location of the engine. In the fifth place, the record does not support the assertion that the train fireman saw both the truck and the engine, at the assumed distances from the point of impact, at the same time, or even at "approximately" the same time. That is just not pinned down in the record. In the sixth place, there is no evidence whatever in the record as to the time it would take the fireman to react and yell to the engineer, or the engineer to react and apply the brakes or sound a warning, or the appellant to react and either stop or step on the gas, or the truck to stop or to pick up speed enough to get across in front of the engine. Yet these are all elements material to a decision as to whether the fireman and engineer had the "vital" time within which to prevent or avoid the accident. (Cf. Buck v. Hill, 121 Cal.App.2d 352 [263 P.2d 643]; Rodabaugh v. Tekus, supra, 39 Cal.2d 290, 295; Jobe v. Harold Livestock Com. Co., 113 Cal.App.2d 269, 272-273 [247 P.2d 951]; Hickambottom v. Cooper Transp. Co., supra, 163 Cal.App.2d 489, 494; Hall v. Atchison, T. & S. F. Ry. Co., 152 Cal.App.2d 80, 84 [312 P.2d 739].) Nor is there evidence as to the dimensions of the truck, or its weight, or the condition of its brakes. The meager evidence of this type in the record does indicate that the nose of the truck would have to have been substantially less than 30 feet, perhaps as little as 23 feet, from the point of impact, when appellant himself first became visible to the engine fireman. And it was not until then that the second element of the doctrine, as laid down in Brandelius, would be met. [5] The case is one peculiarly appropriate for application of the principle that "[m]ere doubt as to the credibility of defendant or the accuracy of his estimate of distance would not amount to affirmative evidence of any material fact." (Jobe v. Harold Livestock Com. Co., supra, 113 Cal.App.2d 269, 275, quoted in Kowalski v. Shell Chemical Corp., supra, 177 Cal.App.2d 528, 535 [2 Cal.Rptr. 319].) Mathematical calculations, when based upon reasonably precise data, are *385 most helpful to a court or a jury, but when they are based upon the vague type of assumptions that appellant is compelled to make here, they are dangerously deceptive. To hold that in this case a jury could find that the defendants had a "last clear chance" to avoid the accident would be to read into those simple words a meaning that they do not have and were never intended to have. Because the facts in a given accident case are always unique, we do not discuss the cases upon which appellant chiefly relies (Sills v. Los Angeles Transit Lines, 40 Cal.2d 630 [255 P.2d 795]; Buck v. Hill, supra, 121 Cal.App.2d 352), except to state that in our opinion they are not controlling here. They apply, to different factual situations, the same principles that we are applying. [6] Appellant complains that the court's instructions unnecessarily and repetitiously overemphasized the element of his contributory negligence. There was some repetition, but the court, at the outset, carefully instructed the jury to disregard any repetition that there might be. The principal instance was one in which the court obviously inadvertently reread certain instructions. It immediately realized what it had done and again cautioned the jury. The evidence that appellant was contributorily negligent is overwhelming, and his contention that the doctrine of last clear chance applies is based upon an assumption that he was. (Hickambottom v. Cooper Transp. Co., supra, 163 Cal.App.2d 489, 495.) We cannot conceive that any prejudice resulted. (Chambers v. Southern Pac. Co., 148 Cal.App.2d 873, 878 [307 P.2d 662].) [7] Finally, it is urged that the court erred in instructing the jury that defendant S.P. would not be negligent in failing to have a flagman at the crossing, or to install an automatic signaling device or crossing gate, these not being required, "as a matter of law," by the Public Utilities Commission, unless the jury found that the crossing was "particularly dangerous and hazardous" or "more than ordinarily hazardous." A careful reading of the instruction persuades us that it correctly states the law, and that it does not say, or convey the impression, as appellant contends, that the safety requirements of the Public Utilities Commission are maximum rather than minimum standards of care for S.P. (Cf. Martindale v. Atchison, T. & S. F. Ry. Co., 89 Cal.App.2d 400, 417-418 [201 P.2d 48]; Green v. Southern Pac. Co., 53 Cal.App. 194, 202 [199 P. 1059]; Ross v. Atchison, T. & S. F. Ry. Co., 141 Cal.App.2d 178 [296 P.2d 372]; Peri v. Los Angeles Junction Ry., *386 22 Cal.2d 111, 123 [137 P.2d 441]; Hinkle v. Southern Pacific Co., 12 Cal.2d 691, 701 [87 P.2d 349]; and see 42 Cal.Jur.2d Railroads, 109, p. 100; 74 C.J.S., Railroads, 725, p. 1339; Grand Trunk Railway Co. v. Ives, 144 U.S. 408 [12 S.Ct. 679, 36 L.Ed. 485], note, 5 A.L.R.2d 112, 123; Flagg v. Chicago Great Western Ry. Co., 143 F.2d 90.) [8] Moreover, we again cannot see how prejudice could have resulted if the instruction were erroneous. Appellant was thoroughly familiar with the crossing. He had worked for over five years at the place from which he was coming at the time of the accident and had driven across the tracks twice daily, and he knew that there was no flagman, gate or signaling device. It is hard to believe that the jury could find that the lack of any of these, if such lack indicated negligence of the S.P., was the proximate cause of the accident, as distinguished from appellant's own negligence in proceeding across the tracks when he had a clear view of both tracks, with plenty of time to stop, for some distance before he got there. Although appellant has the benefit of the presumption of due care, which raises a conflict in the evidence, to be resolved by the jury, the evidence very nearly compels the conclusion that he was contributorily negligent, in that he was trying to get across ahead of the train, at which he was looking, and forgot about the engine, which, by reason of the open field on his right, was visible to him for some distance before he could see the train. Affirmed. Bray, P. J., and Tobriner, J., concurred.

470 F.3d 33 UNITED STATES of America, Appellee,v.Steven D. MUEFFELMAN, Defendant, Appellant. No. 05-2616. United States Court of Appeals, First Circuit. Heard November 6, 2006. Decided November 28, 2006. Martin G. Weinberg with whom Kimberly Homan was on brief for appellant. Peter A. Mullin, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee. Before BOUDIN, Chief Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge. BOUDIN, Chief Judge. 1 By a superseding indictment, Steven Mueffelman was charged by a federal grand jury with 15 counts of mail fraud, 18 U.S.C. § 1341 (2000), and 3 counts of wire fraud. Id. § 1343. A co-defendant, John Lombardi, pled guilty, but Mueffelman went to trial in a proceeding lasting almost a month. Reserving details and disputed issues for the discussion below, the evidence showed the following. 2 In the summer of 1996, Mueffelman, Lombardi and an attorney formed a business venture, using an inactive corporation whose name they changed to Commonwealth Capital Funding Corporation ("CCFC"). CCFC offered to assist persons who were poor or had low credit ratings in acquiring homes. A primary means was to be an arrangement in which CCFC purchased property selected by the client (within a designated price range) at up to 94 percent of its value and, in a paired transaction, immediately resold the property to the client for 100 percent of the value with full financing provided by a mortgage lender found by CCFC. 3 CCFC charged each client who enrolled in the program a $100 fee (doubled for couples and later upped to $125) for a credit check, plus one month's gross income from the client. In exchange CCFC seemingly promised 100 percent (later expressed as "up to 100 percent") financing. Only 17 of Mueffelman's approximately 300 clients ever purchased homes; those who did purchase homes paid more for the homes than the sellers were willing to sell them for and qualified for a mortgage on the basis of their credit, without assistance from CCFC. Thus, most of CCFC's income was from the initial fees rather than the 6 percent differential. 4 CCFC also claimed to offer a lease-to-purchase program which (as it was represented) would use a nonprofit entity to purchase a home with favorable financing and lease it to the client while the client cleaned up his or her credit record. If the client did so, the client would then assume the mortgage. A federal program was in place that provided insured financing under favorable terms where a nonprofit organization secured the financing and received the necessary government approvals. 5 CCFC attracted customers through advertising coupled with the use of so-called independent sales representatives who called upon and dealt directly with clients—receiving for themselves 30 percent of the initial client payment of one month's gross income. Mueffelman, as president of CCFC, hired the sales force, approved the sales literature, made decisions on purchase offers and sought to arrange for financing. In the course of its operations in Massachusetts, lasting from September 1996 to August 1997, CCFC had or sought relationships with various mortgage brokers and at least one nonprofit organization. 6 Investigations by the Massachusetts banking authorities led in August 1997 to an injunction against Mueffelman, Lombardi and CCFC. In the months preceding the injunction, Mueffelman set about organizing a new but similar venture in Florida under a different corporate name, which proceeded to enroll clients and collect fees. Through August 1997, CCFC took in about $1.2 million in fees from its over 300 clients; the sales force was paid over $400,000; and Mueffelman himself received over $167,000, apart from payments from the new Florida venture. 7 In its indictment, the government identified a number of specific falsehoods, which it said that Mueffelman had used or approved to secure money from clients. Each of the counts of mail or wire fraud that followed in the indictment identified a particular mail or wire communication by CCFC to a particular customer on a specified date as a means by which the scheme was executed. The indictment alleged not only that CCFC was a sham but also described particular false or misleading statements. 8 Specifically, the indictment charged that CCFC advertised "100% financing" and "Home ownership guaranteed!!" and otherwise appeared to guarantee financing without a down payment for those with poor credit (e.g., "Bankruptcy OK"); that CCFC claimed to have established relationships with lenders and government-supported loan programs when in fact it had no such track record; and that CCFC claimed it was an "investor" when in fact it did no more than seek lenders. 9 At trial the government offered evidence from which the jury could have found that CCFC had no record and little prospect of finding lenders for clients with poor credit records and no money for down payments; that the advertising would naturally lead clients to think that they were getting guaranteed financing for their month's gross income;1 and that Mueffelman continued to expand the business despite warnings from others including Lombardi as to difficulties in securing financing. 10 The jury convicted Mueffelman of 13 counts of mail fraud. (The government dismissed the remaining counts.) On November 1, 2004, the district court sentenced Mueffelman to 27 months in prison. Mueffelman now appeals, contesting both the jury verdict and his sentence. The standard of review varies with the issue raised, and we start with the attacks upon the judgment of conviction and then turn to the sentence. 11 Mueffelman does not deny in his brief that false statements to customers were made nor that he was responsible for them. His core arguments are that his conviction should be overturned because he optimistically believed that his programs would succeed; that—contrary to the indictment—his business was not a sham enterprise; and that the government's reliance at trial on the false statements was a constructive amendment of the indictment. We begin with Mueffelman's good-faith argument. 12 The mail fraud statute, so far as pertinent to this case, requires (1) a scheme to defraud or to obtain money or property by false or fraudulent pretenses; (2) the use of the mails in executing the scheme or attempting to do so; and (3) specific intent, inferred from statutory language and common law background, which excludes false statements honestly believed to be true and promises or predictions made in good faith. United States v. Cacho-Bonilla, 404 F.3d 84, 90 (1st Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 471, 163 L.Ed.2d 358 (2005); United States v. Dockray, 943 F.2d 152, 155 (1st Cir.1991); 2 Sand et al., Modern Federal Jury Instructions ¶ 44.01 (Instruction 44-3) (2005). 13 This is a far cry from saying that Mueffelman was free knowingly to make false statements to secure money from clients because he believed that his enterprise would succeed. One can be optimistic, even with good reason, about the prospects of a business, but one still cannot, for example, sell stock by lying about the business' past earnings or the presence of booked orders that do not exist. A prediction made in good faith may be sheltered; a statement of fact known to be false is not.2 14 In Dockray, we held that a good faith instruction is not required. 943 F.2d at 155. If references to good faith are made in fraud instructions, this must be done with great care. Here, the trial court's good faith instruction, taken as a whole, could easily have led the jury to think that lies were protected if Mueffelman believed in his enterprise. The pertinent language from the instructions is reprinted in an addendum to this opinion. The instruction was thus overly favorable to Mueffelman, but the jury convicted anyway. 15 Mueffelman attempts on appeal to use the overbroad instruction as the yardstick by which to measure the sufficiency of the evidence against him, claiming that the instruction is "the law of the case." It may be unhelpful to use the phrase "law of the case" in the present context, as if this court were bound by a district court's ruling; but, in any event, the overbroad instruction, properly objected to by the government and likely to be misread in Mueffelman's favor, does not prevent us from determining the proper legal tests for scienter.3 16 Using the correct legal yardstick, Mueffelman is unquestionably liable for statements of fact that he had to know were untrue. Importantly, his advertising said or implied that Mueffelman's business had been ongoing for several years, that it was in a position to secure 100 percent financing, and that it had a network of lenders willing to provide loans. Whether Mueffelman was generally optimistic about his venture does not excuse his lies. 17 Mueffelman's next argument is that the government charged in the indictment that his business was from the outset a sham and failed to prove it. The indictment did so charge: paragraph 22 stated, "In short, the entire business enterprise conducted by Mueffelman and Lombardi was a sham designed solely to generate advance fees." But the indictment also described in detail the effort to procure monies from clients by specific falsehoods which the government did prove—which, with the mailings, made out a violation of the mail fraud statute. 18 Whether the government failed to prove that the whole enterprise was a sham from start to finish is a different matter.4 The district judge said in connection with sentencing that CCFC was not a sham, relying on long hours spent by Mueffelman at the office and endless efforts to find mortgage lenders. We need not decide if the jury could rationally take a different view of the evidence, because the sham allegation did not have to be proved to permit and sustain the conviction. 19 The indictment adequately charged and gave notice of a series of false statements, and conviction on this basis did not constitute a "constructive amendment" of the indictment. A constructive amendment (fatal without regard to prejudice) occurs when "the charging terms of the indictment are altered, either literally or in effect, by prosecution or court after the grand jury has last passed on them," but a variance, which is permissible unless prejudice is shown by the defendant, occurs "when the charging terms remain unchanged but when the facts proved at trial are different from those alleged in the indictment."5 20 The concepts of constructive amendment and variance are closer to a continuum than exclusive categories. See Haines v. Risley, 412 F.3d 285, 291 (1st Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 831, 163 L.Ed.2d 709 (2005). Similarly, the line between "the crime charged" and "the facts charged" is inherently fuzzy. And the distinction between the concepts is complicated by their use to achieve multiple ends: to uphold the grand jury as a safeguard, to identify the crime for double jeopardy purposes, and to give fair notice to the defense. 21 Here, the titular crime was not altered: Mueffelman was charged with mail fraud and convicted of mail fraud. What Mueffelman argues is that the scheme with which he was charged was to perpetrate a "sham" business and instead he was convicted only of false representations. But, of course, he was by the express terms of the indictment charged with doing both as part of the overall scheme. This is not a case where the indictment contained allegations of a sham but not false representations. 22 There was no constructive amendment of the indictment but only (if no sham was proved) a scheme similar to but somewhat narrower in breadth and malignity than that charged in the indictment. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), relied on by Mueffelman, applies where the indictment was "broadened by amendment." Id. at 215-16. By contrast, where the government proves less than alleged, the result is—at the very worst6—a variance: 23 "A jury need not believe that the defendant did everything that the indictment charges; it may convict if it believes he did some of the things the indictment charges and if those things, by themselves, amount to a violation of the statute[,]" provided that the indictment "enable[s] the accused to know the nature and cause of the accusation against him." 24 United States v. Callipari, 368 F.3d 22, 34 (1st Cir.2004), vacated on other grounds, 543 U.S. 1098, 125 S.Ct. 985, 160 L.Ed.2d 998 (2005) (quoting United States v. Doherty, 867 F.2d 47, 55 (1st Cir.1989)). 25 As Callipari demonstrates, a variance is fatal only if the defendant shows prejudice. Mueffelman says that, to refute the sham allegation, he chose in his cross-examination of Lombardi to bring out and adopt Lombardi's assertions showing that the participants had not sought to perpetrate a sham. If no sham had been charged, says defense counsel, there would have been no need to rely on Lombardi and the defense would have concentrated more on refuting the charges of false representations. 26 The argument does not wash. Most important, the government was perfectly entitled to charge in one indictment both that the business was a sham and that it involved false representations. Only if the latter were omitted or were masked by an undue emphasis on the former charge would there be any hope of showing lack of notice. But the false statements were explicitly and extensively charged, and at trial defense counsel did seek to refute them where he could do so. 27 Counsel may be arguing that the charge of sham required the defense to accredit Lombardi and downplay its hostility to his adverse testimony. In fact, the sham charge opened up an opportunity to focus the defense on an issue where Mueffelman had some hope of prevailing and to downplay the false representations issue where the defense was considerably weaker. In any event, the fact that a witness might help as to one issue and hurt on another is just a "can't help" of the litigation process. 28 Separately, Mueffelman attacks his sentence, which occurred in the period after Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district judge correctly anticipated that Blakely would undermine the then-existing mandatory guideline regime. She chose therefore to treat the guidelines as advisory although instructive, United States v. Mueffelman, 327 F.Supp.2d 79, 96 (D.Mass.2004) ("Mueffelman I"),7 and turned out to be right. 29 Under the pertinent guidelines, the base offense level for the fraud was 6, U.S.S.G. § 2F1.1(a) (1995), adjusted upward for multiple and vulnerable victims, U.S.S.G. §§ 2F1.1(b)(2), 3A1.1(b). Mueffelman II, 400 F.Supp.2d at 372. The most important adjustment was for the loss inflicted. The government argued for 11 additional levels based on an intended loss to victims of at least $1.1 million, the figure calculated by the probation report. 30 The resulting range, based on an offense level of 21, was 37 to 46 months. The district court, believing that the scheme had not been a sham at the outset, ruled that the loss overstated Mueffelman's culpability and reduced the offense level to 18, yielding a range of 27 to 33 months. Mueffelman II, 400 F.Supp.2d at 379. The district court then sentenced Mueffelman to 27 months in prison and later entered a restitution order. 31 Mueffelman says that the judge's framework for sentencing differed from the post-Booker framework as developed in United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir.2006) (en banc). To the extent it did, it was not to Mueffelman's disadvantage.8 The district court judge treated the guidelines as advisory although entitled to weight, discounted the loss figure, listened to arguments made by Mueffelman for a still lower sentence, and took account of section 3553 factors to the extent argued by Mueffelman. See United States v. Dixon, 449 F.3d 194, 205 (1st Cir.2006). 32 Only two of those specific arguments made to the district court are renewed on appeal, and the district court's treatment of both is easily sustained. First, Mueffelman urged at sentencing that anything beyond a probationary sentence would impair his ability to provide restitution for victims. He proposed several arrangements, by which he would be placed on probation and earn $120,000-175,000 per year to pay toward restitution, with a friend promising to make up any short fall. 33 After hearing objections from the government, the district judge rejected the proposal. She said that she shared the prosecutor's skepticism about whether the promised restitution would be forthcoming and, in addition, she deemed the case among "the most serious" she had seen in the white-collar crime category. She noted that the fraud was visited not upon a business but upon individuals whom the defendant knew personally. 34 Any notion that the district judge acted unreasonably would be hopeless. Restitution is desirable but so is the deterrence of white-collar crime (of central concern to Congress), the minimization of discrepancies between white-and blue-collar offenses, and limits on the ability of those with money or earning potential to buy their way out of jail. See United States v. Thurston, 456 F.3d 211, 218 (1st Cir. 2006).9 We need not describe the moving testimony of victims in this case as to the effect of the fraud on their lives. 35 The other argument for a lower sentence that Mueffelman urged in the district court and now renews is the disparity between his sentence and the lesser sentence of his co-defendant. Lombardi, it will be remembered, pled guilty and assisted the government, which moved for a downward departure on that account. U.S.S.G. § 5K1.1 (1995). Although the government had sought some jail time in its motion for downward departure, the district court itself placed Lombardi on probation. 36 Our central concern with disparities is between what the defendant was given and what is done nationally with defendants in the same circumstances. Thurston, 456 F.3d at 216; United States v. Navedo-Concepción, 450 F.3d 54, 60 (1st Cir.2006); United States v. Smith, 445 F.3d 1, 5 (1st Cir.2006). In the ordinary course, a sentence within the guidelines is likely to reflect the national standard; and Mueffelman was sentenced within the guideline range (or below it, depending on how one construes the district court's loss reduction). 37 A concern could exist as to both rationality and appearance if two identically situated defendants received discrepant sentences from the same judge, United States v. Saez, 444 F.3d 15, 19 (1st Cir. 2006), cert. denied, ___ U.S. ___, 127 S.Ct. 224, ___ L.Ed.2d ___, 2006 WL 1970133 (Oct. 2, 2006), but this is hardly the present situation. That Lombardi assisted the government is a routine basis for a lower sentence, a policy endorsed in statute, guidelines and precedent. 18 U.S.C. § 3553(e) (2000) (allowing a sentence even below mandatory minimum); U.S.S.G. § 5K1.1; e.g., United States v. Duhon, 440 F.3d 711, 720-21 (5th Cir. 2006). 38 Mueffelman's brief implies that the exact extent of the disparity needed to be explained. It did not: where the defendant's own sentence has been justified and the basis for a co-defendant's lesser sentence is set forth or is apparent, no more precise calibration of the difference between them is customarily feasible, let alone required. Cf. United States v. Scherrer, 444 F.3d 91, 94-95 (1st Cir.2006) (en banc); Navedo-Concepción, 450 F.3d at 58. 39 Affirmed. ADDENDUM 40 The third element concerns whether the defendant's participation in the scheme was knowing and willful. To act knowingly means to act while being conscious and aware of his or her actions, realizing what he or she was doing or what was happening around him or her, and not acting because of ignorance, mistake, accident, or negligence. 41 To act willfully means to act voluntarily and intelligently and with the specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or disregard the law. 42 To act with specific intent to defraud means to act willfully and with the specific intent to deceive or cheat for the purposes of obtaining money or other property or bringing about financial gain. 43 Intent or knowledge may not ordinarily be proven directly, because there is obviously no way to directly scrutinize the human mind. You may consider, in determining what the defendant knew or intended at any given time, you may consider any statements made or acts done or omitted by the defendant and any and all facts or circumstances received in evidence that may assist you. Again, circumstantial evidence. 44 You may infer, but you're certainly not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. It is entirely up to you, however, to decide what facts are proven by the evidence that has been received in this trial. 45 Excuse me. I thought I could make it through without a coughing jag, but I didn't. 46 Okay. Now, I'm going to talk for a moment about good faith. Since an essential element of the crime charged is intent to defraud, it follows that good faith on the part of the defendant is a complete defense for the charge of mail fraud. However, although I described this as a complete defense, the defendant, again, has no burden to establish this defense. 47 As in all matters, it is the government who must establish beyond a reasonable doubt that the defendant acted with specific intent to defraud as charged in the indictment. 48 Even if you find that there were false statements or misrepresentations or omissions of material facts, they do not amount to fraud unless you also find that they were done with fraudulent intent. 49 A defendant acts in good faith when he actually believed, one, that the plan would succeed; two, that promises made be kept; and, three, that representations made would be fulfilled. 50 An honest belief in the truth of the representations made by a defendant at the time they were made, however inaccurate they may turn out to be, is consistent—is not consistent, rather, with an intent to defraud. Likewise, a fraudulent intent is not necessarily to be inferred from the fact that the venture was unprofitable, nor is fraudulent intent established by evidence that the person made a mistake of judgment or an error in management or was careless. 51 In order to establish fraudulent intent, it must be established that the person knowingly or intentionally attempted to deceive another. One who knowingly and intentionally deceives another is chargeable with fraudulent intent notwithstanding the manner and the form in which the deception occurred. Notes: 1 A jury could reasonably draw this inference from the advertising even though CCFC's contract said that CCFC would refund the fees paid if CCFC madeeight suitable offers on houses selected by the client, all of which were rejected, or, in other materials, if CCFC was unable to "perform their agreed upon services." 2 United States v. Dunn, 961 F.2d 648, 651 (7th Cir.1992) ("[The defendant's] good faith belief that [his company] would be successful in the long-term was not relevant to the element of specific intent because that belief did not negate the falsity of the misrepresentations ...."); United States v. Beecroft, 608 F.2d 753, 757 (9th Cir.1979) ("While good faith is a defense to mail fraud, an honest belief in the ultimate success of an enterprise is not, in itself, a defense."); United States v. Diamond, 430 F.2d 688, 691 (5th Cir.1970) ("The trial court was correct in stating that an honest belief in the ultimate success of the project is not in itself a defense."). 3 The law of the case usually is invoked to require a court to follow its own rulings in a case or to follow the directions of a higher courtConley v. United States, 323 F.3d 7, 12 (1st Cir.2003) (en banc). Although we have sometimes used the phrase to hold the parties on appeal to instructions that were neither objected to nor patently incorrect, e.g., United States v. Gomes, 969 F.2d 1290, 1294 (1st Cir.1992), the present case falls outside this category. 4 The government says that the word "sham" in the indictment did not imply that CCFC made no efforts to secure financing, but it brushes off its own use of the word "solely" following "sham" in paragraph 22 of the indictment 5 United States v. Fisher, 3 F.3d 456, 462-63 (1st Cir.1993); see also United States v. Fornia-Castillo, 408 F.3d 52, 66 (1st Cir.2005); United States v. Dunn, 758 F.2d 30, 35 (1st Cir.1985); 35 Geo. L.J. Rev.Crim. Proc. 280-83 (2006) (citing dozens of cases). 6 By strict definition, one might say that proving fewer than all of the facts in an indictment-but adding nothing new-is not a variance at all; but omissions could so seriously distort the picture presented by the indictment as to raise questions of unfair prejudice, making the variance precedent pertinentSee, e.g., United States v. Self, 2 F.3d 1071, 1084 (10th Cir.1993). 7 Mueffelman I was a consolidated decision of all pending criminal cases in which Judge Gertner held that Blakely rendered the guidelines advisory. United States v. Mueffelman, 400 F.Supp.2d 368 (D.Mass.2005) ("Mueffelman II"), was the sentencing memorandum that explained Mueffelman's sentence and restitution order. 8 Mueffelman relies onUnited States v. Wallace, 461 F.3d 15, 32 (1st Cir.2006), but it is clearly distinguishable. In Wallace we found error in the district court's calculation of upward departures under the guidelines. We did not remand for resentencing simply for a failure to anticipate perfectly Jiménez-Beltre. 9 InUnited States v. Menyweather, 447 F.3d 625, 634-35 (9th Cir.2006), cited to us by Mueffelman, the Ninth Circuit simply recognized that restitution is more readily made by an employed, non-incarcerated defendant. The appeals court added that it would be "unlikely to have selected this particular sentence [only weekend jail time] if [it] were doing the sentencing." Id. at 636.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 98-4454 VICTOR TYRONE ENGLE, Defendant-Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., District Judge. (CR-97-255) Submitted: July 27, 1999 Decided: September 23, 1999 Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Thomas H. Johnson, Jr., GRAY, NEWELL & JOHNSON, L.L.P., Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Victor Tyrone Engle was indicted by a federal grand jury and charged with two counts of an eighteen count superseding indictment. Count one charged Engle with conspiracy in violation of 21 U.S.C.A. § 846 (West Supp. 1999). Count eighteen charged Engle with posses- sion with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) (1994). Engle pled guilty to count eighteen in accordance with a written plea agreement. At sentencing, the court increased Engle's offense level by two levels because police officers found three weapons at his residence at the time of his arrest. See U.S. Sen- tencing Guidelines Manual § 2D1.1(b)(1) (1997). The court also sen- tenced Engle as a career offender. See USSG§ 4B1.1. Engle now appeals his sentence of 200 months' imprisonment. Engle's attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), addressing whether Engle should have been classified as a career offender. Engle contends that the prior convictions forming the basis for his career offender classifica- tion should not have been counted against him because if he had pled guilty to the conspiracy charge in count one of the indictment, the prior convictions would have been counted as relevant conduct and Engle would not have been sentenced as a career offender. This argu- ment is without merit. Engle did not plead guilty to count one, but to count eighteen. Based upon that plea, Engle met the criteria identified by USSG § 4B1.1 for sentencing as a career offender. Furthermore, Engle's contention is irrelevant and speculative. Therefore, the district court did not err in sentencing Engle as a career offender. Engle's pro se supplemental brief argues that his offense level should not have been increased for possession of firearms. Engle states that the increase was improper because the firearms at issue were not found at his residence, as stated in the presentence report (PSR), but were discovered by police in a field, separate and apart from where the cocaine was located. Engle did not raise this point at the plea proceeding or sentencing and did not object to the facts stated in the PSR. We find that Engle did not demonstrate plain error by the district court on this sentencing issue. See Fed. R. Crim. P. 52. 2 In accordance with Anders, we have examined the entire record in this case and find no reversible error. We therefore affirm Engle's sentence. We deny counsel's motion to withdraw at this time. This court requires that counsel inform his client in writing of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. See 4th Cir. R. 46(d). Counsel's motion must state that a copy thereof was served on the cli- ent. See id. 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 3 

26 U.S. 250 (____) 1 Pet. 250 WILLIAM KONIG, WHO IS AN ALIEN, PLAINTIFF BELOW, vs. WILLIAM BAYARD, WILLIAM BAYARD, JR. ROBERT BAYARD, AND JACOB LE ROY, CITIZENS OF THE STATE OF NEW-YORK. Supreme Court of United States. Argued by Mr. Webster, and Mr. Ogden Hoffman, for the plaintiff, and by Mr. D.B. Ogden, and Mr. Oakley, for the defendants. For the plaintiff. *261 Mr. Chief Justice MARSHALL delivered the opinion of the Court: — This suit was brought in the Court of the United States, for the second Circuit and district of New-York, on a bill of exchange, drawn by John C. Delprat, of Baltimore, on Messrs. N. & J. & R. Van Staphorst, of Amsterdam, in favour of Le Roy, Bayard & Co. of New-York, and endorsed by them. The bill was regularly presented and protested, after which it was accepted and paid by the plaintiff, for the honour of the defendants. The jury found a verdict for the plaintiff, subject to the opinion of the Court, on a case stated by the parties. The Judges of the Circuit Court were divided in opinion, on the following points: 1. Whether the letters offered in evidence by the defendants, and objected to, ought to have been admitted. 2. Whether the plaintiff had a right, under the circumstances, to accept and pay the bill in question, under protest, for the honour of the defendants; and is entitled to recover the amount, with charges and interest. The first question is understood to be waived. It is a question which was decided by the Court, at the trial, and could not arise after verdict, unless a motion had been made for a new trial. The second requires an examination of the case stated by counsel. The bill was transmitted by Le Roy, Bayard & Co. to Messrs. Rougemont & Bebrings, of London, to have it presented for acceptance, who enclosed it to the plaintiff, in a letter, from which the following is an extract: "We beg you to have the enclosed accepted, 1st, of fl. 21,500, 60 days, on N. & J. & R. Van Staphorst, and hold the same to the disposal of 2d, 3d, and 4th. You will oblige me by mentioning the day of acceptance, and in case of refusal, you will have the bill protested." The plaintiff gave immediate notice of the dishonour of the bill, and of their intervention, for the honour of the defendants. Messrs. N. & J. & R. Van Staphorst addressed a letter to the defendants, dated the 26th of November, 1822, giving notice that the bill was dishonoured; the drawer having no right *262 to draw, and that they were advised by counsel not to interpose, in their own names, for the honour of the defendants. The letter adds, "In this predicament, we applied to our friends, William Konig & Co. who had the said bill in hand, informed them of the whole case, and requested these gentlemen, under our guarantee, to intervene on behalf of your signature, with acceptance and payment of the above bill; which favour these gentlemen have not refused to us; so that, without our prejudice, and completely without yours, we have duly protected your interest." The defendants also gave in evidence, a letter from the plaintiff, stating that he had intervened, at the request of N. & J. & R. Van Staphorst, and under their guarantee; but that they required him to proceed against the defendants, as preliminary to the performance of that guarantee. It was admitted that the bill was drawn by J.C. Delprat, on his own account, and not on any shipment for a debt due from him to the defendants, for advances previously made to him; and that he had given to the defendants an order on N. & J. & R. Van Staphorst, for all balances due from them to him. It is not alleged that the drawees had any funds of the drawer in their hands. The plaintiff in this case must be considered as the agent of N. & J. & R. Van Staphorst, and as having paid the bill at their instance. All parties concur in stating this fact. The Van Staphorsts adopted this circuitous course, instead of interposing directly in their own names, under the advice of counsel. They however immediately stated the transaction in its genuine colours, to the defendants. It is impossible to doubt, that a person may thus intervene, through an agent, if it be his will to do so. The suspicion which might be excited by proceeding, unnecessarily, in this circuitous manner, cannot affect a transaction, which was immediately communicated, with all its circumstances, to the persons in whose behalf the intervention had been made; unless those persons were exposed to some inconvenience, to which they would not have been exposed, had the interposition been direct. This is not the case in the present instance, since it cannot be doubted that the defendants might have availed themselves of every defence in this action, of which they could have availed themselves, had N. & J. & R. Van Staphorst been plaintiffs. The case shows plainly, that the bill was not drawn on funds, and that the drawees were not bound to accept or pay it. No reason, therefore, can be assigned, why the person who has made himself the holder of the bill, by accepting and paying it under protest, should not recover its amount from the drawer and endorsers. *263 This cause came on to be heard, on a certificate of division of opinion of the Judges of the Circuit Court of the United States, for the southern district of New-York, and on the points on which the said Judges were divided in opinion, and was argued by counsel, on consideration whereof, This Court is of opinion, that the plaintiff had a right, under the circumstances, to accept and pay the bill in question, under protest, for the honour of the defendants, and is entitled to recover the amount, with charges and interest; which is ordered to be certified to the said Circuit Court.

72 Ill.2d 560 (1978) 382 N.E.2d 239 DOROTHY HAYES, Appellant, v. LOWELL RUSSELL ALSBURG et al., Appellees. No. 50108. Supreme Court of Illinois. Opinion filed September 19, 1978. Rehearing denied December 1, 1978. *561 Jerome Mirza & Associates, Ltd., of Bloomington, for appellant. John R. Luedtke, of Bloomington, for appellee Lowell Russell Alsburg. T.G. Kanppenberger, Jr., of Champaign, for appellee Sidney M. Vickers. Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (William C. Wetzel, of counsel), for appellee Frank E. Enyart. *562 Costigan & Wollrab, of Bloomington, for appellee Terry L. Hart. Judgment affirmed. MR. CHIEF JUSTICE WARD delivered the opinion of the court: The plaintiff, Dorothy Hayes, brought an action for personal injuries in the circuit court of McLean County against the drivers of four cars involved in a rear-end chain collision, which she alleged had occurred as the result of negligence on the part of one or more of the defendants, Lowell Alsburg, Sidney Vickers, Frank Enyart, and Terry Hart. A jury returned verdicts for all four defendants, and the appellate court, with one justice dissenting, affirmed (52 Ill. App.3d 355). We granted the plaintiff's petition for leave to appeal (65 Ill.2d R. 315). There had been an earlier jury trial, at which the court directed a verdict for the plaintiff on the issue of whether she had been guilty of contributory negligence. That jury had returned verdicts in favor of the four defendants, but the trial judge allowed the plaintiff's motion for a new trial. In the second trial, which was conducted before a different judge, the plaintiff also made a motion for a directed verdict on the issue of contributory negligence, as well as a motion for a directed verdict that one or more of the defendants had been guilty of negligence as a matter of law. The motions were denied. The jury returned verdicts in favor of the defendants, and the plaintiff's motions for a new trial and judgment n.o.v. were denied. The four autos involved were traveling in the southbound passing lane of Route 66 near Shirley, at 1:30 a.m. on August 30, 1969. Route 66 at that point was a four-lane divided highway. The posted speed limit was 70 miles per hour. It was clear and dark and there was heavy automobile and truck traffic. There was no lighting of any kind in the vicinity of the collisions. Autos 1, 2, 3, and 4 were driven by the defendants Alsburg, Vickers, Enyart, *563 and Hart respectively. The plaintiff was asleep in the rear seat of auto 3 (Enyart's). She and the other three occupants of auto 3 were returning from a vacation in Canada and had been traveling all day. Alsburg, the driver of auto 1, testified that he had observed a sign indicating that a crossover was ahead. (A crossover is a break in the highway that allows cars to make a U-turn and join traffic proceeding in the opposite direction.) He turned on his turn signal and was slowing down preparatory to beginning a U-turn when, he said, his car was struck from the rear by auto 2. Alsburg stated that, remarkably, it was pushed several hundred feet south of, or beyond, the crossover. He had not seen any headlights approaching from the rear until seconds before the impact. Two passengers from his auto gave similar testimony. The driver of auto 2, Vickers, testified that he had been traveling in the passing lane at 60 to 65 miles per hour when he observed the brake lights of auto 1, which he said was stopped 500 feet ahead to the south of the crossover. He saw no cars approaching from the rear as he brought his auto to a halt one car length behind auto 1. He testified that his tail lights were in operating order at that time. Moments later, his automobile was struck from the rear by auto 3, and slammed into auto 1, knocking it 100 feet forward. Almost immediately his car was hit a second time, but the second impact was much less severe. The four passengers in auto 2 testified to the same effect as Vickers. The testimony of Enyart, the driver of auto 3, in which the plaintiff was riding, seemed in defiance of physical laws. He testified that he had switched into the passing lane approximately 150 feet from what turned out to be the point of impact, and was proceeding at 60 to 70 miles per hour. He observed auto 2, stopped in his lane with no lights, as he came within 80 feet of it. He *564 gradually applied his brakes, he said, and slowed to 3 to 5 miles per hour within 6 feet of auto 2, when he was struck once from the rear by auto 4. The impact of that collision caused his car to strike the rear of auto 2. He said his car struck the other only once, contradicting the testimony of Vickers, who said his auto was struck twice by auto 3. He testified that he would have been able to have stopped his car without striking auto 2 had he not been struck from the rear. The plaintiff's adult daughter, also a passenger in auto 3, gave substantially the same testimony. The driver of auto 4, Hart, who was traveling alone, also gave testimony which seemed extraordinary. He said that he moved into the passing lane at 70 miles per hour moments before the collision. He said that he had noticed auto 3 pass him at a greater speed than his own before he switched lanes. He stated that he was 6 to 8 car lengths from auto 3 when he heard a crash. He put on his brakes immediately, but struck auto 3 once, as he was braking down to "below 50 miles per hour." He did not observe any stop lights on auto 3. The investigating officer, Leonard Kelly, testified that there were no highway signs indicating the existence of a crossover, and that all the skidmarks and debris from the collisions were located south of the crossover. He estimated the approximate point where auto 1 was struck to be 75 feet south of the crossover, and he testified that the driver of auto 1 told him he had realized he was proceeding on the wrong highway, and that he had intended to make a U-turn at the crossover but had "missed" it. The officer's accident report does not indicate such a statement was given by auto 1's driver; it does, however, indicate violation by auto 1's driver for improper turning, and speeding violations by the drivers of autos 2, 3 and 4. The plaintiff testified simply, so far as the collisions were concerned, that she was asleep in the back seat, and *565 did not remember how long she had slept. The questions we must determine are whether the trial court should have directed a verdict that the sleeping plaintiff was not contributorially negligent as a matter of law, and also whether the plaintiff was entitled to a directed verdict that one or more of the defendants were negligent as a matter of law. This court has not considered the question, but it has been held that the circumstance alone that an automobile passenger is sleeping at the time of a collision is not sufficient to withdraw the question of his contributory negligence from the jury. Rather, this circumstance should be considered along with all other relevant ones by the jury in deciding whether there was contributory negligence. (Aurora National Bank v. Galauner (1967), 81 Ill. App.2d 132, 135; Dursch v. Fair (1965), 61 Ill. App.2d 273, 285; Thompson v. Riemer (1936), 283 Ill. App. 371, 376.) It has been held that a defendant was not entitled to a directed verdict that the plaintiff was contributorially negligent on the sole ground that the plaintiff was asleep (Ramirez v. Deters (1976), 41 Ill. App.3d 935; Dursch v. Fair (1965), 61 Ill. App.2d 273; Thompson v. Riemer (1936), 283 Ill. App. 371; Smith v. Courtney (1935), 281 Ill. App. 530); similarly it has been held that it was error to grant a plaintiff a new trial on the ground that his sleeping amounted to freedom from contributory wilful and wanton misconduct as a matter of law (Aurora National Bank v. Galauner (1967), 81 Ill. App.2d 132). See generally W. Prosser, Torts sec. 65, at 420 (4th ed. 1971); 5 D. Blashfield, Automobile Law and Practice sec. 215.23 (3d ed. 1966); Comment, 44 Iowa L. Rev. 622 (1959); 17 Minn. L. Rev. 222 (1933); see also 2 F. Harper & F. James, Torts sec. 16.7, at 921-22 (1956). Nevertheless, the plaintiff argues that under the particular circumstances of this collision her motion for a directed verdict on the issue of her contributory negligence *566 should have been granted. She contends that there was nothing she could have seen or done to avoid the accident had she remained awake and kept a lookout, and that the courts have frequently deplored "backseat driving." The standard governing the direction of verdicts was stated by this court in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510: "In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Murphy v. Messerschmidt (1977), 68 Ill.2d 79, 86; Walling v. Lingelbach (1976), 65 Ill.2d 244, 247; Mizowek v. De Franco (1976), 64 Ill.2d 303, 309; Mundt v. Ragnar Benson, Inc. (1975), 61 Ill.2d 151, 157; Hardware State Bank v. Cotner (1973), 55 Ill.2d 240, 246; Walsh v. Finley (1972), 51 Ill.2d 174, 178; Baran v. City of Chicago Heights (1969), 43 Ill.2d 177, 181; Calvetti v. Seipp (1967), 37 Ill.2d 596, 598.) This standard was made applicable also to the question of contributory negligence: "Logic demands that one rule govern both the direction of verdicts and determination of the presence or absence of negligence or contributory negligence as a matter of law, for in both situations the issue is whether a court or the jury should decide the negligence issue." Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 503. A review of all the evidence tending to prove or disprove the plaintiff's due care for her own safety, "viewed in its aspect most favorable to the opponent[s]," does not require one to say that it "so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." The plaintiff's party had traveled all day and was still on the road at 1:30 a.m.; traffic was heavy, the speed limit was 70 miles per hour, and the hour was late. The driver of auto 4 testified that *567 the plaintiff's car had passed his at a speed in excess of 70 miles per hour moments before the collision. A jury might have inferred that the speeding had been continuous and concluded that an ordinarily prudent passenger would not have gone to sleep under all these circumstances. (See 5 D. Blashfield, Automobile Law and Practice sec. 215.23 (3d ed. 1966).) It is not unreasonable to say that these evidentiary factors in combination produce a question of fact as to whether the plaintiff was in due care for her own safety, a question which was properly submitted to the jury. Finally, the trial court did not err in denying the plaintiff's motion for a directed verdict that the jury find any one or more of the defendants guilty of negligence as a matter of law. The evidence was sharply conflicting; no driver conceded liability. The evidence against any of the drivers in favor of the plaintiff clearly did not overwhelmingly favor the plaintiff so that a verdict for the defendant could not stand. See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510. The plaintiff asked the trial court to instruct the jury in effect that it could discharge its duty simply by finding against one or more of the four defendants. The responsibility of the jury could not be so simply and summarily met. The circumstance that there were four defendants did not diminish or alter the obligation of the jury here to find against only the person or persons whose liability to the plaintiff had been specifically and individually established. Prosser describes this succinctly: "It is never enough for the plaintiff to prove merely that he has been injured by the negligence of someone unidentified. Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant." (W. Prosser, Torts sec. 39, at 218 (4th ed. 1971).) He further observes: *568 "Some quite intricate questions arise where the plaintiff proceeds against two or more defendants. Unless there is vicarious liability or shared control, the logical rule usually is applied, that the plaintiff does not make out a preponderant case against either of two defendants by showing merely that he has been injured by the negligence of one or the other. Occasional statutes permitting the plaintiff to join the two as defendants, and to proceed against them with pleading in the alternative, have been held to be intended to avoid a nonsuit, but not to affect the ultimate burden of proof by a preponderance of the evidence against someone. The questions which arise are amply illustrated by the cases of colliding vehicles." W. Prosser, Torts sec. 39, at 221 (4th ed. 1971). As was aptly noted by the appellate court in this case, the directed verdict would have been internally inconsistent. On the one hand, it implies that there is overwhelming evidence against any one or more of the defendants; but on the other hand it implies that the evidence is not overwhelming against those defendants the jury chooses to find not guilty of negligence, so long as at least one is found to have been negligent. See Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App.3d 656, 682 (English, J., dissenting). For the reasons given, the judgment of the appellate court, affirming the judgment of the circuit court of McLean County, is affirmed. Judgment affirmed.

IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 43801 STATE OF IDAHO, ) 2016 Unpublished Opinion No. 574 ) Plaintiff-Respondent, ) Filed: June 17, 2016 ) v. ) Stephen W. Kenyon, Clerk ) RYAN EVERETT LANGFORD, ) THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT Defendant-Appellant. ) BE CITED AS AUTHORITY ) Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Richard S. Christensen, District Judge. Order denying Idaho Criminal Rule 35 motion, affirmed. Sara B. Thomas, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. ________________________________________________ Before GUTIERREZ, Judge; GRATTON, Judge; and HUSKEY, Judge ________________________________________________ PER CURIAM Ryan Everett Langford pleaded guilty to two counts of rape, Idaho Code § 18-6101(a), and entered an Alford1 plea to one count of sexual abuse of a child under sixteen years of age, I.C. § 18-1506. The district court imposed two unified twelve-year sentences, with four years determinate, for the rape charges, and a unified seven-year sentence, with four years determinate, for the sexual abuse of a child under sixteen years of age charge. All sentences were ordered to run concurrently. Langford filed an Idaho Criminal Rule 35 motion, which the district court denied. Langford appeals. 1 See North Carolina v. Alford, 400 U.S. 25 (1970). 1  A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency, addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d 23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In presenting an I.C.R. 35 motion, the defendant must show that the sentence is excessive in light of new or additional information subsequently provided to the district court in support of the motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). Upon review of the record, including any new information submitted with Langford’s I.C.R. 35 motion, we conclude no abuse of discretion has been shown. Therefore, the district court’s order denying Langford’s I.C.R. 35 motion is affirmed. 2 

938 N.E.2d 865 (2010) LITTLEFIELD v. STATE. No. 49A02-1003-CR-266. Court of Appeals of Indiana. December 1, 2010. ROBB, J. Disposition of Case by Unpublished Memorandum Decision Affirmed. FRIEDLANDER, J., concurs. BAILEY, J., concurs.

275 Cal.App.2d 835 (1969) MAXWELL L. RUBIN, Plaintiff, v. BUDDY R. BARASCH, Defendant and Appellant; SHIRLEY LEE BARASCH, Third Party Claimant and Respondent. Civ. No. 33782. California Court of Appeals. Second Dist., Div. Two. Aug. 26, 1969. Haskell H. Grodberg for Defendant and Appellant. Ryan & Traxler and Sidney Traxler for Third Party Claimant and Respondent. ROTH, P. J. In July 1967, Maxwell L. Rubin (Rubin) sued Buddy R. Barasch (Buddy) in one cause of action for $50,000, plus attorney's fees and interest on Buddy's promissory *836 note and in a second cause of action, Shirley Lee Barasch (Shirley) and other defendants. Shirley and the defendants other than Buddy were joined on the theory of conspiracy to conceal Buddy's assets. Rubin levied a writ of attachment on five bank accounts aggregating $33,694.33, in the names of Buddy and Shirley. Rubin dismissed against Shirley and all defendants other than Buddy and moved for summary judgment against Buddy. The motion was granted. Judgment was entered against Buddy for $56,702.54 and costs. One month prior to the Rubin action, in June 1967, Buddy instituted an action for divorce against Shirley in which she cross-complained for divorce. Shirley had, prior to the entry of the summary judgment in the Rubin action, filed a third party claim in the Rubin action to one half of the funds in the five attached accounts. Service of the third party claim was made on the levying officer and upon Rubin's attorney. Respective counsel for Shirley and Rubin stipulated that her claim could be "granted as prayed." The court then in the Rubin action entered a "Judgment Determining Title To Personal Property Subject To Third Party Claim" which, among other things, declared that one half of the attached funds was Shirley's separate property "free and clear of any claims of Plaintiff, Maxwell L. Rubin and defendant Buddy R. Barasch, or either of them ..." The third party judgment directed distribution of one half of the attached funds to Shirley and declared that Rubin's attachment or any writ of execution thereafter obtained by him would be valid only as to the remaining one half. Buddy received no formal written notice of his wife's third party claim or of the hearing thereon and did not appear in the proceeding under Code of Civil Procedure section 689. After the entry of judgment in the 689 proceeding, Buddy moved for a new trial on his wife's claim or for reconsideration or modification of the third party judgment on the ground of lack of notice and on the further ground that the attached funds were community property and, as such, had been placed in issue in the divorce action. Buddy's motion was denied. This appeal is from the third party judgment and from the minute order denying Buddy's motion for a new trial. Shirley alone opposes the appeal. The purpose of section 689, Code of Civil Procedure, is to give a quick and effectual remedy to third parties whose property has been levied on by mistake and to protect the *837 officer who makes such levy. (Constructora S.A. v. Shepherd, 112 F.Supp. 935, reversed on other grounds 220 F.2d 1). Section 689 requires the third party claimant to deliver a written claim only to the levying officer and the party in whose favor the writ of attachment runs is entitled to a determination of title to the attached funds. Under section 689, the third party claim "shall constitute the pleading of such third party claimant ... and it shall be deemed controverted by the plaintiff or other person in whose favor the writ runs." After a hearing on a third party claim, "the court shall give judgment determining the title to the property in question, which shall be conclusive as to the right of the plaintiff, or other person in whose favor the writ runs, to have said property levied upon, taken, or held, by the officer and to subject said property to payment or other satisfaction of his judgment." Section 689 further provides that "In such judgment the court may make all proper orders for the disposition of such property or the proceeds thereof." Apparently the only parties required to the proceeding under section 689 are the third party claimant and the attaching or judgment creditor. (See American Fruit Growers, Inc. v. Jackson, 203 Cal. 748 [265 P. 926]; Watwood v. Steur, 89 Cal.App.2d 620, 631 [201 P.2d 460].) Nothing in that section required that notice be given to Buddy, the judgment debtor. However, if notice is required, under Schroeder v. City of New York, 371 U.S. 208 [9 L.Ed.2d 255, 83 S.Ct. 279, 89 A.L.R.2d 1398], and if the property is attached and executed upon was actually Buddy's and Rubin, by stipulated judgment or otherwise, released one half to Shirley as her separate property, Buddy had nothing to lose and much to gain. Buddy was not a party to the proceedings on the third party claim nor to the stipulated judgment, and consequently, the judgment does not bind him. In a subsequent proceeding between him and Rubin, Buddy may successfully prove that Rubin wrongfully gave away property belonging to Buddy that could have been applied to the Rubin debt. Rubin stipulated to a judgment in the third party proceedings at his peril. There is nothing before us to indicate that Rubin has credited the judgment against Buddy for less than the full amount of the five bank accounts. Nor is the fact that the third party judgment awarded one half of the bank accounts to the wife as her separate property conclusive against Buddy in the divorce action between himself and his wife. In other words, the third party judgment is not res *838 judicata as between Buddy and his judgment creditor or as between Buddy and his wife. [fn. 1] [1] However, even though section 689, Code of Civil Procedure, does not require notice of proceedings to Buddy, and a judgment flowing from proceedings for which he receives no notice and in which he does not participate cannot bind Buddy, it seems to us that he had a right to intervene in those proceedings especially when the intervention is in an action in which he is the defendant for the purpose of vacating that portion of the judgment which purported to run against him. (Estate of Baker, 170 Cal. 578, 584 [150 P. 989]; Elliott v. Superior Court, 144 Cal. 501, 509 [77 P. 1109, 103 Am.St.Rep. 102]; Cal. Civil Appellate Practice, 6.6, p. 210.) Buddy did intervene. He moved for a new trial on the third party claim and a reconsideration and modification of the judgment which ran against him. The motion was denied by minute order of the court. In our opinion, the motion should have been granted and the judgment modified insofar as it affected Buddy. The minute order denying Buddy's motion for modification of the judgment on the third party claim is reversed. The trial court is directed to eliminate from the judgment any reference to the adjudication of claims between Shirley and Buddy and to affirm as part of the judgment Shirley's third party claim, free and clear of the claims of Maxwell Rubin. As so modified, the judgment on the third party claim against Maxwell Rubin is affirmed. Fleming, J., and Wright, J., concurred. NOTES [fn. 1] 1. From the brief filed on behalf of the wife, it appears that during the pendency of this appeal, an interlocutory decree of divorce was entered in the wife's favor and that all funds in her possession, including whatever money she retained from the third party judgment, were awarded to her. It further appears that the husband has appealed from the interlocutory decree of divorce. Thus, it appears that the issue of whether the judgment herein appealed from is effective as against Buddy, was actually raised by Buddy in the divorce action.

682 F.2d 296 82-1 USTC P 9403 John A. GAMBLING and Sally Gambling, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 989, Docket 82-4010. United States Court of Appeals,Second Circuit. Argued April 19, 1982.Decided May 27, 1982. George Wailand, New York City (Walter C. Cliff, Richard Coll, Cahill, Gordon & Reindel, New York City, of counsel), for petitioners-appellants. James F. Miller, Washington, D.C. (Michael L. Paup, Richard W. Perkins, Dept. of Justice, Washington, D.C., of counsel), for respondent-appellee. Before WATERMAN, FRIENDLY and MESKILL, Circuit Judges. MESKILL, Circuit Judge: 1 John A. and Sally Gambling ("Gambling") appeal from a decision of the United States Tax Court, Wilbur, J., upholding a determination by the Commissioner of Internal Revenue ("Commissioner") of a deficiency in Gambling's federal income tax for the calendar year 1973 in the amount of $50,508.17 plus accrued statutory interest. For the reasons set forth below, we affirm.BACKGROUND 2 On January 1, 1963, Gambling and radio station WOR, a division of RKO General Inc. ("RKO"), entered into an agreement (the "1963 agreement") "providing for the engagement by RKO of (Gambling's) services" as a radio announcer for the three year period commencing January 1, 1963 and ending December 31, 1965. The contract provided for the payment of deferred compensation to Gambling in the event that Gambling's contract share of revenues from his radio programs exceeded $125,000 per annum. Subparagraph 5(d) of this agreement provided that deferred compensation "shall be accrued or set aside and be paid by RKO to (Gambling) upon the terms and conditions" set forth in paragraph 6. Under subparagraph 6(a), RKO agreed to make payments of deferred compensation to Gambling at the rate of $2,000 per month beginning in January 1985. Subparagraph 6(b) provided, however, that- 3 In the event of the death or permanent disability of (Gambling) prior to December 31, 1984, or in the event of the discontinuance of the employment of (Gambling) by RKO upon the expiration or termination of the term of this agreement or any extension or renewal thereof prior to December 31, 1984, the monthly payments provided in subparagraph "(a)" above shall be made commencing on the first day of the month following such death, permanent disability or discontinuance of employment; in all other respects such payments shall be paid in the manner and to the extent provided in subparagraph "(a)" above. 4 By a letter agreement dated February 28, 1965 (the "1965 letter agreement") Gambling and RKO agreed to terminate the 1963 agreement "in all respects" except that subparagraphs 5(c) and (d) and paragraph 6 were to continue in "full force and effect until the accounting and payments contemplated thereby (were made)."1 The next day, RKO and John A. Gambling Enterprises, Inc. ("Enterprises"), a New York corporation which had elected Subchapter S status under the applicable provisions of the Internal Revenue Code, entered into a new contract (the "1965 agreement") whereby Enterprises agreed to furnish the services of Gambling to RKO for the period commencing March 1, 1965 and ending December 31, 1969. Although Enterprises was substituted for Gambling as a party to the 1965 agreement, Gambling continued to perform the same services he had performed under the 1963 agreement. 5 Pursuant to subparagraph 5(d) of the 1963 agreement, $70,777.52 in deferred compensation owed Gambling accrued. RKO, however, did not fund an account for Gambling's deferred compensation or set aside the funds owed Gambling. Gambling neither demanded nor received payment of compensation prior to 1973. However, in May 1973, Gambling asked RKO to pay him $23,000 of the deferred compensation. RKO agreed to pay Gambling the money if he signed a letter amendment to the 1963 agreement which stated, inter alia: 6 At (Gambling's) request, RKO is paying to (Gambling) upon the signing of this letter agreement, from the sums accrued or set aside and held by RKO as provided in subparagraph (d) of paragraph 5 and in paragraph 6 of the 1963 Agreement as amended by the 1965 Amendment ( (the 1965 letter agreement) ), the amount of Twenty-three Thousand Dollars ($23,000). 7 As herein amended, the 1963 Agreement as amended by the 1965 Amendment shall continue in full force and effect. 8 In response to Gambling's further oral request, RKO paid the $47,777.52 balance of Gambling's deferred compensation on July 26, 1973. 9 Gambling did not report the deferred compensation on his federal income tax returns for years prior to 1973. As an attachment to the 1973 return, Gambling reported the receipt of the $70,777.52 in deferred compensation, but he did not include it in his 1973 gross income, claiming that "(t)his (amount) was taxable in 1963, 1964 and 1965." Arguably, under section 6501(a) of the Internal Revenue Code, these years were closed to tax assessment. In a Notice of Deficiency dated June 23, 1978, the Commissioner rejected this position, increased Gambling's gross income by $70,777.52, and assessed a $50,508.17 deficiency against Gambling.2 10 On September 19, 1978, Gambling filed a petition for redetermination in the United States Tax Court. J.App. at 3. Gambling contended that in accordance with the terms of the 1963 agreement, he was entitled to receive the deferred compensation in 1965 through 1968 and that, therefore, he was in constructive receipt of the deferred compensation during that period. J.App. at 6, 8-9. 11 The tax court, 42 T.C.M. (CCH) 1372, 1376-77 (Oct. 7, 1981), upheld the Commissioner's deficiency determination, finding that Gambling had no contractual right to the deferred compensation prior to January 1985 because his employment by RKO was not discontinued. The tax court held in the alternative that even if Gambling were "contractually entitled to the deferred compensation payments beginning in 1965, it is clear that his right to such amounts in that year was not unrestricted so as to invoke the doctrine of constructive receipt." Id. at 1377. DISCUSSION 12 "(I)ncome that is subject to a (taxpayer's) unfettered command and that he is free to enjoy at his own option may be taxed to him as his income, whether he sees fit to enjoy it or not." Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 74 L.Ed. 916 (1930). Thus, Treas.Reg. § 1.451-1(a) (1981), provides that an item of income is to be included in gross income in the year in which it is "actually or constructively received." Treas.Reg. § 1.451-2(a) (1981), provides in pertinent part: 13 Income although not actually reduced to a taxpayer's possession is constructively received by him in the taxable year during which it is credited to his account, set apart for him, or otherwise made available so that he may draw upon it at any time, or so that he could have drawn upon it during the taxable year if notice of intention to withdraw had been given. However, income is not constructively received if the taxpayer's control of its receipt is subject to substantial limitations or restrictions. 14 Gambling claims that he had a contractual right to receive the deferred compensation once his employment with RKO was discontinued and that he was in constructive receipt of the funds thereafter. He argues that the Commissioner stipulated that Gambling's employment was discontinued as of March 1, 1965 and that this stipulation is conclusive on this issue. Gambling maintains that the tax court erred in interpreting the 1963 agreement and in holding that he did not have a right to the deferred compensation in 1965. 15 We find no error in the tax court's interpretation of the 1963 agreement. As the court recognized, 42 T.C.M. (CCH) at 1376-77, the key to the issue of Gambling's contractual right to deferred compensation is subparagraph 6(b) of the 1963 agreement. That section provides for the early payment of Gambling's deferred compensation in the event of his death or disability. Additionally, the agreement provides for early payment upon the "discontinuance" of Gambling's employment with RKO and "the expiration or termination of the term of this agreement or any extension or renewal thereof prior to December 31, 1984." Because the 1963 agreement expired on December 31, 1965, Gambling's entitlement to deferred compensation beginning in 19663 turns on whether his employment was discontinued within the meaning of the 1963 agreement. 16 In construing the 1963 agreement, we are guided by the familiar principle of contract law that "when the terms of a written contract are clear and unambiguous, the intent of the parties must be found therein." Nichols v. Nichols, 306 N.Y. 490, 496, 119 N.E.2d 351, 353 (1954). However, where the terms of the contract are ambiguous or contradictory, the court must construe the contract to give effect to the intent of the parties. Rottkamp v. Eger, 74 Misc.2d 858, 861, 346 N.Y.S.2d 120, 124-25 (N.Y.Sup.Ct.1973); see Lipsky v. Commonwealth United Corp., 551 F.2d 887, 896 (2d Cir. 1976). 17 We find that in the context of the 1963 agreement, the phrase "discontinuance of the employment of (Gambling) by RKO" is susceptible of more than one meaning. Gambling contends that he and RKO intended the phrase to denote the technical termination of Gambling's direct employment with RKO. Like the tax court: 18 (w)e believe this paragraph contemplates the complete cessation of services (directly or indirectly) by Gambling for RKO, either through death or disability, or through retirement or employment by another communications business. We certainly do not believe that the parties intended to allow the acceleration provisions of paragraph 6(b) to be triggered by the simple expedient of Gambling's incorporating himself although Gambling would continue to perform services identical to those he was performing when the parties entered into the 1963 agreement. 19 42 T.C.M. (CCH) at 1376 (footnote omitted). 20 Further, the conduct of the parties contradicts Gambling's interpretation of the 1963 agreement. The tax court found, and Gambling does not dispute, that when the 1965 agreements were signed neither Gambling nor RKO believed that Gambling would be entitled to deferred compensation until January 1985. The same conclusion is compelled by the fact that both the 1965 and the 1973 letter agreements specifically carried forward the deferred compensation provisions of the 1963 agreement. Accordingly, the tax court did not err in finding that Gambling was not entitled to the deferred compensation until his death, disability or complete cessation of services for RKO. 21 In light of our interpretation of the contract, we do not believe that the stipulation is dispositive. We do not quarrel with Gambling's basic proposition that stipulations are "conclusive admission(s) by the parties" and "shall be binding (upon the taxpayer and the Commissioner) in the pending case," Rule 91(e), Rules of Practice and Procedure of the United States Tax Court. See Kampel v. Commissioner, 634 F.2d 708, 710 n.3 (2d Cir. 1980); City Trust Co. v. United States, 497 F.2d 716, 719 (2d Cir. 1974). We disagree, however, with Gambling's claim that the Commissioner conceded that Gambling's employment with RKO was discontinued when he entered into the 1965 agreements. The stipulation states: 22 As of March 1, 1965, Gambling's employment by RKO was discontinued. However, by virtue of Gambling's employment by Enterprises and the 1965 Agreement there was no interruption of Gambling's services to Station WOR. 23 We believe that the tax court was correct when it stated: 24 Although the parties stipulated that "(a)s of March 1, 1965, Gambling's employment by RKO was discontinued," we do not think that this constitutes a concession by the (Commissioner) that Gambling's services were discontinued within the meaning of paragraph 6(b) since ... discontinuance denotes a complete separation of service. This is especially so when read in light of the following sentence wherein the parties also stipulated that "(h)owever, by virtue of Gambling's employment by Enterprises and the 1965 agreement there was no interruption of Gambling's services to Station WOR." 25 42 T.C.M. (CCH) at 1376 n.4. 26 Gambling's final contention is that the tax court erred in finding that substantial limitations or restrictions existed which defeated his right to receive the deferred compensation from 1965 through 1968. Because Gambling was not contractually entitled to the deferred compensation during this period, and there is no indication that the parties intended anything to the contrary, our inquiry ends. 27 The decision of the tax court assessing a deficiency against taxpayers in the amount of $50,508.17 for the calendar year 1973 is affirmed. 28 FRIENDLY, Circuit Judge, concurring in the result: 29 It would, of course, be unfortunate if Gambling were to escape taxation on the $70,777.52 of deferred compensation paid him in 1973 because of an ill-advised stipulation by an assistant district counsel of the Internal Revenue Service.1 Still I cannot agree that when counsel for the IRS stipulated with counsel for Gambling that "As of March 1, 1965, Gambling's employment by RKO was discontinued", the very words used in subparagraph 6(b) of the agreement of January 1, 1963, they meant anything other than what they plainly said. 30 However, although the assistant district counsel thus gave away a large part of the IRS' case, he did not succeed in giving away all. Income is constructively received only if two conditions are met: that the taxpayer was legally entitled to it, which the stipulation settles in Gambling's favor, and that his control of its receipt was not "subject to substantial limitations or restrictions." Treas.Reg. § 1.451-2(a). While the stipulation of February 8, 1980, settled that RKO could not have lawfully refused Gambling's demand in 1973, it did not settle whether RKO might reasonably have believed in earlier years that it could. The reasons persuasively set forth in Judge Meskill's opinion amply establish that RKO might reasonably have entertained such a belief and quite possibly did. Further substantiation is afforded by the fact that when making the first payment in 1973, RKO insisted on Gambling's signing a letter which "amended" the 1963 agreement as amended by the 1965 amendment. 31 I would affirm on this ground. 1 The 1965 letter agreement provides in pertinent part: Subparagraph (c) of paragraph 5 of the 1963 Agreement shall continue in full force and effect until the accounting and payments contemplated thereby shall have been completed. Also, subparagraph (d) of paragraph 5 and all of paragraph 6 shall continue in full force and effect until all the payments contemplated thereby shall have been made. 2 The deficiency assessment was based primarily upon Gambling's receipt of deferred compensation 3 In his petition for redetermination, Gambling claimed that $20,000 in deferred compensation was taxable in 1965. However, because the term of the 1963 agreement did not expire until December 31, 1965, it is clear that even were Gambling's employment discontinued in 1965, he would not have been entitled to receive deferred compensation until January 1, 1966 1 I do not accept such escape as a necessary conclusion. Although the matter is not before us, the Commissioner might well be able to invoke IRC §§ 1311 and 1312 It should be made entirely clear that the IRS attorney who signed the stipulation was not the attorney from the Department of Justice who argued this appeal.

940 F.2d 665 UNPUBLISHED DISPOSITIONNOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Robert EDMUNDSON, Plaintiff-Appellant,v.CONTINENTAL PIPELINE COMPANY and Conoco, Incorporated,Defendants-Appellees. No. 90-3089. United States Court of Appeals, Seventh Circuit. Submitted July 17, 1991.*Decided Aug. 8, 1991. Before CUDAHY and COFFEY, Circuit Judges, and PELL, Senior Circuit Judge. ORDER 1 Plaintiff Robert Edmundson brought suit in district court alleging racial discrimination under 42 U.S.C. Sec. 1981 and various state laws after he was discharged by his employer Continental Pipeline Co. (Continental). The district court dismissed the second amended complaint with prejudice. We affirm. 2 Edmundson was fired from his job by Continental in 1986 and subsequently filed suit for racial harassment and discharge. After discovery, Continental filed a motion for summary judgment. In its reply brief, Continental noted that the Supreme Court had recently decided Patterson v. McLean Credit Union, 491 U.S. 164 (1989), which limited actions under section 1981 to cases of discrimination in the making and enforcing of private contracts. The district court called for supplemental briefing on the effect of Patterson. After briefing, the district court granted summary judgment in favor of Continental, but gave Edmundson leave to file an amended complaint. He filed a four count amended complaint still alleging that Continental violated section 1981, but adding that Continental violated Edmundson's rights under Illinois public policy and breached implied terms and conditions of an employment contract. The district court granted Continental's motion to dismiss, but again granted Edmundson thirty days to file a second amended complaint. He changed a few words and filed the second amended complaint which the district court then dismissed with prejudice. 3 Initially Edmundson argues that Patterson should not apply to discriminatory discharge cases and should not apply retroactively to cases such as his which were pending when the Court decided Patterson. In McKnight v. General Motors Corp., 908 F.2d 104 (8th Cir.1990), this court held, along with eight other circuits, that under Patterson discharges, in addition to harassment, are no longer actionable under section 1981. Id. at 108-109. The only case to the contrary, Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.1990), has been vacated by the Supreme Court, 111 S.Ct. 1299 (1991) and overruled by the Eight Circuit sitting en banc. Taggart v. Jefferson County Child Support Enforcement Unit, No. 89-2429EA (8th Cir. June 6, 1991). We decline Edmundson's suggestion to overrule or restrict McKnight. 4 On appeal, Edmundson for the first time challenges the retroactive application of Patterson to his case. Before the district court, he attempted to distinguish Patterson while arguing that he had entered into a new contract each year (or perhaps each day), making Continental's failure to renew at the time of his discharge actionable. He never addressed whether Patterson should apply retroactively and such arguments raised for the first time on appeal are waived. Amplicon Leasing v. Coachmen Indus., Inc., 910 F.2d 468, 471 (7th Cir.1990). 5 Next, Edmundson argues that Continental has waived any claim that Patterson applies to this case. In fact, the record reveals that Continental raised Patterson at almost every juncture. The Supreme Court decided Patterson after Continental had filed for summary judgment on Edmundson's complaint. Continental raised the issue at its earliest opportunity--its reply brief. The district court ordered supplemental briefing on the issue and Continental complied, raising the issue a second time. After Edmundson filed his first amended complaint, Continental raised the issue a third time in its motion to dismiss, which the district court granted. Continental raised the issue for a fourth time in its motion to dismiss Edmundson's second amended complaint. This issue is not waived. 6 Finally, Edmundson argues that his pendent state law claim regarding retaliatory discharge for complaints at the work place regarding safety was improperly dismissed. In Count 2 of the complaint, Edmundson alleged that "[t]he public policy of the State of Illinois is that employees may make complaints about job conditions which are hazardous to themselves and others." He argues on appeal that he had a right to make complaints to the Illinois Department of Labor regarding violations of safety or health standards. The problem is that Edmundson never made such a complaint, nor does he reveal what safety or health concerns would have been included in such a complaint. Instead, his complaint to higher-ups at Continental took the form of a diatribe against a supervisor which he fashioned as a novella. "The common law doctrine that an employer may discharge an employee-at-will for any reason or for no reason is still the law in Illinois, except for when the discharge violates a clearly mandated public policy." Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 525, 478 N.E.2d 1354, 1356 (1985). There is no precise definition of public policy. Palmateer v. International Harvester Co., 85 Ill.2d 124, 126, 421 N.E.2d 876, 878-79 (1981). We doubt that ad hominem attacks against an employer who failed to see the wisdom of a corporate marketing plan designed by someone from the pipe-fitting department is protected by Illinois public policy. 7 The decision of the district court granting Continental's motion for summary judgment is AFFIRMED. * This case was originally set for oral argument. The court, on its own motion, withdrew the case from the oral argument calendar. The court then notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record

NO. 07-05-0155-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E JUNE 13, 2005 ______________________________ CHRISTOPHER WAYNE McCOY, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 174th DISTRICT COURT OF HARRIS COUNTY; NO. 999635; HON. GEORGE H. GODWIN, PRESIDING _______________________________ ABATEMENT AND REMAND _______________________________ Before QUINN, C.J., REAVIS, J., and BOYD, S.J. (1) Appellant Christopher Wayne McCoy appeals from a judgment convicting him of aggravated sexual assault of a child. The reporter's record is due in this cause. An extension of the applicable deadline was sought by the court reporter. The reporter, by letter dated June 3, 2005, represented to us that she has not been contacted by anyone to prepare a reporter's record in this case and she will not be filing a reporter's record. Accordingly, we now abate this appeal and remand the cause to the 174th District Court of Harris County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following: 1. whether appellant desires to prosecute the appeal; 2. whether appellant is indigent; and, 3. whether appellant is entitled to appointed counsel and a free appellate record. The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed a supplemental clerk's record containing the findings of fact and conclusions of law and all orders it may issue as a result of its hearing on this matter, and 3) cause to be developed a supplemental reporter's record transcribing the evidence and arguments presented at the aforementioned hearing. Should it be determined that appellant wishes to prosecute the appeal, is indigent, and is entitled to an appointed attorney but has none, then the trial court shall appoint counsel, unless appellant knowingly and voluntarily waives counsel. Furthermore, the name, address, and phone number of any counsel appointed by the trial court to represent appellant shall be included in the supplemental record. The trial court shall also file both supplemental records with the clerk of this court on or before July 11, 2005. Should further time be needed by the trial court to perform these tasks, then it must be requested before July 11, 2005. It is so ordered. Per Curiam Do not publish. 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004). aware of the nature of the proceeding in which he was then involved. Given this, the trial court found appellant competent to stand trial, accepted the guilty pleas, found him guilty for the offenses charged and, once a punishment hearing was concluded, levied sentence. Issue One - Factual Sufficiency of the Evidence In his first issue, appellant contends that the evidence presented to the court during the plea hearing was factually insufficient to find him competent to stand trial. We overrule the issue. The standard by which we review the factual sufficiency of the evidence is well established and fully discussed in Zuliani v. State, 97 S.W.3d 589, 593-95 (Tex. Crim. App. 2003) and King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). We refer the litigants to them for their discussion. (2) Next, a person is incompetent to stand trial if he lacks 1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or 2) a rational and factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46.02 §1A(a) (Vernon Supp. 2004) (Emphasis added). Furthermore, one is presumed competent unless proved incompetent by a preponderance of the evidence. Id. §1A(b). Additionally, when an accused is found incompetent and sent to a mental health facility, as appellant was here, the head of the facility must notify the trial court when "he is of the opinion that the defendant has attained competency . . . ." Id. §5(f)(1). And, when the accused is discharged, "a final report shall be filed with the court documenting the applicable reason for the discharge . . . ." Id. §5(i). Moreover, the trial court is authorized to make a determination based solely on the report with regard to the defendant's competency to stand trial, unless the prosecuting attorney or the defense counsel objects in writing or in open court to the findings of the report within 15 days from the time the report is served on the parties. Id. Finally, if the accused is found competent to stand trial, criminal proceedings against him may be resumed. Id. §5(k). With this said, we turn to the record before us. As previously mentioned, appellant was found incompetent and sent to a mental health facility, i.e. Vernon. Thereafter, he was discharged and, in the ensuing report, categorized as "competent to stand trial" by the chief psychiatrist at Vernon. So too was he described, in the report, as 1) demonstrating "a factual and rational understanding of the court personnel and proceedings," 2) having "an appreciation of the charges and legal strategy" and "an awareness of the consequences and penalties if convicted," 3) having "the capacity to disclose facts and testify relevantly," 4) having the ability "to assist his attorney in preparing his defense" and to "conform his behavior to the acceptable decorum of the court," 5) having "adequate memory, attention, intellectual functioning," 6) having the "ability to engage in a logical and coherent discussion," 7) "functioning in the average range of intelligence," and 8) demonstrating "adequate decision-making ability to select a reasonable strategy on his case." The chief psychiatrist also stated in the report that appellant "has been diagnosed with malingering and has a strong potential for exaggerating symptoms which might include bizarre acting out behaviors . . . ." The possibility that appellant "will become extremely desperate while in jail and exaggerate symptoms in a desperate bid to appear mentally ill . . . to try and avoid the consequences of the current charges," was further noted. Nothing of record indicates that either party objected to this report. This is of import given that statute authorizes the trial court to determine his competency solely from it. Tex. Code Crim. Proc. Ann. art. 46.02 §5(i) (Vernon Supp. 2004). So, at the very least, it provides more than ample evidence to support the trial court's finding of competency. That the trial court may have voiced some disagreement with the allusion to appellant "malingering" does not render the report bereft of weight or the finding of competency factually insufficient. That aspect of the report was one of many observations uttered therein. And, at no time did the trial court state that it disagreed with any other observation in it, including those involving the accused's ability to engage in legal strategy, demonstrate adequate decision-making ability, function within an average range of intelligence, factually and rationally understand the criminal proceedings in which he was involved, appreciate the charges and consequences if convicted, disclose facts and testify relevantly, or conform his conduct and assist his attorney in preparing his defense. To this, we also add the trial court's observations of appellant, his demeanor, and his answers to the court's questions during the plea hearing. Indeed, the trial court expressly stated that those observations influenced its decision. Consequently, we are unable to say that the evidence of appellant's competency to stand trial at the time of the plea hearing was too weak to support the trial court's finding or that the proof of his competency was against the great weight and preponderance of the evidence. Issue Two - Sua Sponte Hearing In his second issue, appellant faults the trial court for failing to empanel another jury to consider his competency as a result of his responses at the plea hearing. We overrule the issue. Whether the trial court erred in failing to empanel a jury depends upon whether it abused its discretion. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000). And, whether it abused its discretion depends upon whether its decision fell outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Next, a trial court need not sua sponte empanel a jury to determine competency unless evidence brought to the trial court's attention is sufficient to raise a bona fide doubt in the mind of the judge as to the defendant's competency to stand trial. Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001); Moore v. State, 999 S.W.2d at 393. Generally, such a doubt exists only if the evidence indicates recent severe mental illness, moderate mental retardation, or truly bizarre acts by the defendant. McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003); Alcott v. State, 51 S.W.3d at 599 n.10; Reeves v. State, 46 S.W.3d 397, 399 (Tex. App.--Texarkana 2001, pet. dism'd). And, again, it must support the inference that the accused lacked the present ability to consult with his attorney or a rational and factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46.02 §1A(a) (Vernon Supp. 2004); see Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 946, 116 S.Ct. 385, 133 L.Ed.2d 307 (1995) (stating that competency considerations involve an individual's present ability to consult with his attorney or understand the proceedings against him). Here, the trial court had a report from Vernon wherein appellant was found to be competent. That report was issued within three weeks before the plea hearing, and statute authorized the trial court to rely exclusively on it when considering appellant's competency. As to appellant's answers at the plea hearing, some of the initial ones were indeed unresponsive to various questions propounded. Yet, his ultimate replies proved highly responsive. Those answers also evinced appellant's understanding of the proceedings against him and the voluntariness of his actions, or the trial court could have so reasonably held. Furthermore, the plea hearing was bereft of outbursts or bizarre actions on the part of appellant. So too did defense counsel refrain from suggesting that her client was unable to communicate with her or was unaware of either the nature of the proceedings against him or his situation. This is telling for that same counsel was not only aware of appellant's prior condition but also instrumental in having him previously declared incompetent by a jury. Yet, at the plea hearing, she said nothing about appellant being incompetent at the time. Given the record before us, we cannot say that the evidence created a bona fide doubt of appellant's competency. Thus, we cannot say that the failure to empanel another jury to address appellant's competency at the time of the plea hearing fell outside the zone of reasonable disagreement or that the trial court abused its discretion. Accordingly, the judgments of the trial court are affirmed. Brian Quinn Justice Do not publish. 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004). 2. Appellant asks that we either modify or deviate from the standard of review discussed in the cases we cite due to recent writings of the Texas Supreme Court. However, the Texas Court of Criminal Appeals has final say in things criminal, not the Texas Supreme Court. And, since it has prescribed a particular standard of review, we must follow it as prescribed.

397 F.2d 289 GREAT AMERICAN INSURANCE COMPANYv.The UNITED STATES, and Bank of America National Trust and Savings Association, Third-Party Defendant. No. 249-67. United States Court of Claims. June 14, 1968. Edward Gallagher, Washington, D. C., attorney of record, for plaintiff. Edward L. Metzler, Washington, D. C., with whom was Asst. Atty. Gen., Edwin L. Weisl, Jr., for defendant. Edgar H. Brenner, Washington, D. C., for third party defendant, James E. Krier and Arnold & Porter, Washington, D. C., of counsel. Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges. ON MOTION OF THIRD PARTY BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION TO DISMISS OR STAY PROCEEDINGS COWEN, Chief Judge. 1 This case presents a question of this court's jurisdiction over a third party notified under Section 14(b) of the Contract Settlement Act of 1944, 41 U.S.C. § 114(b) (1964)1 to appear to assert and defend its interest in a suit in this court. The issue is before us on the motion of the third party, Bank of America National Trust and Savings Association, to dismiss or stay proceedings because of lack of jurisdiction of the third party. The facts essential to the disposition of the motion are not in dispute. 2 In January 1956, a joint venture known as "James L. Wennermark d/b/a Wennermark Co. & Emmett J. Harris" contracted with the Department of the Interior for construction work on a levee extension. Plaintiff was the Miller Act (40 U.S.C. § 270a, et seq. (1964)) surety for the joint venture, and when it defaulted on the contract on July 29, 1965, plaintiff effected the completion of the contract work as required by its bond. 3 The present dispute centers around a check for $52,000.74 issued by defendant on June 7, 1965, payable to the order of the joint venture in the name "Wennermark Co. and Emmett J. Harris," in partial payment of work performed on the contract. The check was endorsed and negotiated at the Highland Branch of the Bank of America, San Bernardino, California. Precisely who endorsed the check, who negotiated it at the bank, and what authority he had to do so, are among the key factual issues which are to be decided later and are not now before us. 4 On June 17, 1965, at the request of the joint venture and the attorney for plaintiff, the Treasurer of the United States ordered payment stopped on the check. When the Bank forwarded the check for payment, it was returned with a notation that payment had been stopped at the request of the joint venture. On July 7, 1965, the joint venture filed a claim against defendant for the proceeds of the check. On August 3, 1965, subsequent to the default of the joint venture on its contract, Emmett J. Harris executed an assignment of his interest in the proceeds of the check to plaintiff. On April 12, 1967, James L. Wennermark, on behalf of Wennermark Company, and Emmett J. Harris assigned to plaintiff all right, title and interest in any claims they might have against E. F. Wennermark and his wife arising out of the check of $52,000.74, which check, according to the assignment, had been wrongfully and without authority converted and the proceeds disposed of by E. F. Wennermark and his wife. 5 On October 22, 1965, Bank of America wrote to the Treasurer of the United States requesting that payment of the proceeds of the check be made to it. The Treasury Department replied that the check would not be paid until a court of competent jurisdiction made a determination "establishing the party entitled." 6 Plaintiff sued the defendant in this court, alleging that as the contractor's surety, it had completed the contract and paid the creditors of the joint venture pursuant to the surety's performance and payment bond at a total expense of $91,319.16. Plaintiff further alleges that it thereby acquired equitable rights to the $52,000.74 held by the defendant as the unpaid balance due on the contract, and that plaintiff's rights to the fund are superior to the rights of any other party. Having learned that the Bank claims the same contract balance which plaintiff sues to recover, plaintiff had a notice served on the Bank (pursuant to 41 U.S.C. § 114(b)) to appear and defend its interest in the subject matter of the suit. Contending that this court lacks jurisdiction over it, the Bank then filed a motion for an order quashing the third party notice served on it and dismissing it from these proceedings without prejudice or, in the alternative, for a stay of this action, pending the determination of a suit between plaintiff and the Bank in a federal or state court in California. We hold that our jurisdiction extends to the claim asserted by plaintiff against defendant and, further, that we have jurisdiction to determine whether the plaintiff or the Bank is entitled to recover the contract balance now held by the defendant. 7 * With much vigor and some ingenuity, the Bank argues that this case is beyond our jurisdiction because it is, in essence, a commercial law dispute between plaintiff and the Bank over the proceeds of the check and that any judgment in favor of the plaintiff on its claim will, in reality, be a judgment against the Bank. We think it is the Bank which has ignored the realities. Plaintiff's petition plainly states a cause of action for the recovery of a contract balance now held by the Government in a stakeholder capacity. Plaintiff alleges that as surety it has discharged the obligations of its payment and performance bonds, after default by the contractor, and has a superior right to the balance due on the contract. Beyond question, such a claim is within the general jurisdiction conferred on this court by 28 U.S.C. § 1491. Royal Indem. Co. v. United States, 93 F.Supp. 891, 117 Ct.Cl. 736 (1950); Hadden v. United States, 132 F.Supp. 202, 132 Ct.Cl. 529 (1955). It is undisputed that the defendant now holds the sum of $52,000.74 as the unpaid balance due on the contract and that, in view of the conflicting claims to the money, defendant has refused to pay anyone until a court of competent jurisdiction decides the issue. Furthermore, in its response to the third party's motion, defendant asserts that this court has exclusive jurisdiction to render judgment against the United States to recover the money involved in the instant action. The Bank has attempted to collect the stake now held by the defendant and would be the last to say that it has no interest in the fund plaintiff seeks to recover. There are therefore present in this action all of the elements that are required for the exercise by this court of its jurisdiction under Section 114(b). 8 As this court pointed out in Central Nat'l Bank of Richmond, Va. v. United States, 84 F.Supp. 654, 655, 114 Ct.Cl. 390, 392 (1949), the language of Section 114(b) is very broad and provides that the court on motion of either party "may summon any and all persons with legal capacity to be sued to appear as a party or parties in any suit or proceeding of any nature whatsoever * * * to assert and defend their interests, if any." The purpose of this part of the statute is "to permit the parties to bring in other persons who might, if not foreclosed, later show that they owned or had an interest in the claim sued on, or whose possible right might, if not foreclosed, be used as a defense by the United States to defeat the principal claimant." Richfield Oil Corp. v. United States, 151 F.Supp. 333, 335, 138 Ct.Cl. 520, 522-523 (1957). Manifestly, the law was designed to cover such an interest as the Bank claims in the money held by defendant. Since the enactment of Section 114(b), this court has, without a single dissent in any case, uniformly held that, where the principal suit is on a claim to recover a contract balance held by the Government as a stakeholder, the court has jurisdiction to determine whether the plaintiff or a third party, who claims an interest in the stake, is entitled to recover the money from the United States.2 See Royal Indem. Co. v. United States, 371 F.2d 462, 178 Ct.Cl. 46, cert. den. Jersey State Bank v. Royal Indem. Co., 389 U.S. 833, 88 S.Ct. 33, 19 L.Ed.2d 93 (1967) and cases cited therein. II 9 The Bank also contends that even if plaintiff has a cause of action cognizable by this court, the exercise of this court's jurisdiction over the Bank denies its seventh amendment right to a jury trial. In Maryland Cas. Co. v. United States, 141 F.Supp. 900, 135 Ct. Cl. 428 (1956), a third party bank to whom the Government had paid the proceeds due under the contract upon which the suit was brought, was summoned to answer the Government's contingent claim against it. The summons was issued pursuant to another provision of Section 114(b), which has no application to the case before us. The third party assailed our jurisdiction on the ground that it had disclaimed any interest in the subject matter of the suit and that if the Government sought to obtain a judgment against it, the third party was entitled by the seventh amendment to have the action brought in a district court where the third party would be entitled to a jury trial. The contention was rejected by the court. 10 The Bank here is in a much weaker position to urge a deprivation of its rights under the seventh amendment. The Government has not filed a contingent claim against it, and there is no indication that it has any intention of doing so. Plaintiff seeks no judgment against the Bank, for plaintiff's action is against the United States. The Bank has merely been notified to appear and defend its interest, if it elects to do so. It is free to withdraw from the action at any time, but in that event it may be barred from thereafter asserting its claim against the United States. Hardin County Sav. Bank v. United States, 102 Ct.Cl. 815, 821 (1945). 11 In view of the conflicting claims to the contract balance held by it, the Government has refused to pay anyone until a court of competent jurisdiction determines who is entitled to recover the money. Moreover, the Government, through its authorized legal representative in this action, has taken the position that only this court is competent to decide the issue. Therefore, we do not agree that the Bank has lost the right to any jury trial that would be available to it for collecting the money that is the subject matter of this action. The Bank acknowledges, as it must, that it is not entitled to a jury trial in a suit against the United States in this or any other court on a claim of the type involved here. If a third party in the Bank's position can oust the limited jurisdiction which this court will exercise as a result of the notice served, little would be left of Section 114(b), and one of the principal purposes for which Congress enacted that statute would be nullified. 12 In asserting that we should deny jurisdiction, the Bank also relies on our decisions in Rolls-Royce, Ltd., Derby England v. United States, 364 F.2d 415, 176 Ct.Cl. 694 (1966); Richfield Oil Corp. v. United States, 151 F.Supp. 333, 138 Ct.Cl. 520 (1957); Oliver-Finnie Co. v. United States, 137 F.Supp. 719, 133 Ct.Cl. 555 (1956). These cases are not in point. In Rolls-Royce, plaintiff sued the United States for patent infringement, whereupon a third party who had intervened, counterclaimed against the plaintiff to recover for a breach of contract growing out of a license entered into between the third party and the plaintiff. We denied jurisdiction of the counterclaim on the ground that Section 114(b) does not empower us to entertain actions by third parties against the plaintiff to recover damages on a cause of action that is not cognizable by this court. In Oliver-Finnie, the third party had been summoned to answer a contingent claim which the Government filed against the third party. The contingent claim sought recovery for the breach of a contract entered into between the Government and the third party. It was a contract separate and distinct from that upon which the principal action was based. In Richfield Oil plaintiff sued the Government for just compensation for the taking of an oil pipeline and right-of-way. The Government summoned the Los Angeles County Flood Control District to answer its contingent claim that the District had obligated itself to save the United States free of claims for damages arising out of the project involving the pipeline. Thereupon, the District summoned certain officials of the State of California to defend against the District's contingent claim against the State. In dismissing the District's contingent claim against the State, the court held that the alleged contingent liability of the State to the District, which would arise only if the contingent liability of the District to the United States were to become actual, was a claim that did not fall within the provisions of Section 114(b). III 13 The Bank's final contention is that the provisions of 12 U.S.C. § 94 (1964), a statute fixing the venue of actions and proceedings against national banks, requires the allowance of the Bank's present motion. The short answer to that contention is that this is a suit against the United States on a claim which can be litigated only in this court. Hardin County Sav. Bank v. United States, supra. Even if we were to assume, what we do not hold, that this is a proceeding against the Bank, the venue statute would not oust this court of its jurisdiction for, as stated in Borcherling v. United States, 35 Ct.Cl. 311, 342 (1900), aff'd sub nom. United States v. Borcherling, 185 U.S. 223, 234, 22 S.Ct. 607, 46 L.Ed. 884 (1902), the Court of Claims is a court of national jurisdiction and, in cases properly before it, "this court is to all intents and purposes sitting in the State where the cause of action arose or where the claim accrued." 14 As we have previously indicated, there are factual issues in this case which must be disposed of before the entry of a judgment on the merits. Such issues are not now before us, and we intimate no decision on the merits. The third party's motion is denied, and the case is remanded to the trial commissioner for trial or other proceedings as may be necessary. Notes: 1 This section provides in part: "The Court of Claims, on motion of either of the parties, or on its own motion, may summon any and all persons with legal capacity to be sued to appear as a party or parties in any suit or proceeding of any nature whatsoever pending in said court to assert and defend their interests, if any, in such suits or proceedings * * *." 2 Judge Laramore's dissent in Maryland Cas. Co. v. United States, 141 F.Supp. 900, 906, 135 Ct.Cl. 428, 439 (1956) was based upon the fact that the Government was no longer a stakeholder, because the money sought to be recovered in the main action had been paid to the third party long prior to the time the suit was brought LARAMORE, Judge (dissenting): 15 I am constrained to dissent and briefly set forth the reasons for my lack of agreement with the majority opinion. 16 Plaintiff, in its petition, has made a claim, as surety, for the monies which remain unpaid on the contract between the government and its principal, the original contractor. In its Motion to Bring in the Third Party Under Rule 23, plaintiff's supporting statement (to indicate that the third party, Bank of America, has the requisite interest in the subject matter of the litigation), is premised exclusively on the fact that the Bank had "previously claimed ownership of the proceeds of the check in competition with petitioner." This apparently is a reference to the Bank's opposition to any payment by the Treasury Department when the joint venture, in June 1965, claimed the proceeds of the original check. 17 In this suit, plaintiff does not attempt to collect the check. It relies on its rights as surety to collect the money due on the underlying contract, claiming that neither it nor the joint venture has been paid. The Bank, however, has no interest in, nor any rights which accrue from, the basic contract. Its only rights, if any, are those which are based on the check. If properly negotiated (or if negotiated by an impostor) it might be collectible from the government under applicable commercial law statutes. If, however, a forgery was perpetrated, it, in all probability, would bear the loss. These, however, are questions of commercial law which involve a dispute between the Bank and the surety over whether the check was negotiated by a forger or by an impostor (or perhaps by an authorized representative of Wennermark Company). 18 Plaintiff, by predicating this suit on its equitable rights to an unpaid contract fund, is not involved with the original check except to establish that its contractor was not properly paid. I note that in its Answer to the petition, defendant claims to "have fully discharged all its obligations under the contract by issuing" the original check. At oral argument, defendant admitted that the money was owed either to the Bank or the surety, but this is not to say that the government is prevented from subsequently arguing that the money was due the contractor, and that it has paid. 19 All of these circumstances are pertinent to the basic difficulty I have with the majority opinion. Contrary to the conclusion reached by the majority, this is not a situation where the government is a stakeholder of a fund claimed by two persons, each of whom has rights which have accrued as a result of a related transaction with the government. Generally these are the cases in which an assignee and a contractor or a surety contest the right to a particular contract fund held by the government. All of the parties' rights to the fund are related to the basic contract. See: Central National Bank of Richmond, Virginia v. United States, 84 F.Supp. 654, 114 Ct.Cl. 390 (1949); Maryland Casualty Co. v. United States, 141 F.Supp. 900, 135 Ct. Cl. 428 (1956); Seaboard Surety Co. v. United States, 144 Ct.Cl. 686 (1959), cert. denied, Halton City Bank of Fort Worth v. Seaboard Surety Co., 359 U.S. 1001, 79 S.Ct. 1140, 3 L.Ed.2d 1031 [which involved a contract fund that had been paid to one claimant]. Nor is this a situation where the government moves the court to have a third party introduced into the basic proceedings because the third party has a contingent liability to the government. See: Richfield Oil Corp. v. United States, 151 F. Supp. 333, 138 Ct.Cl. 520 (1957); Rolls-Royce Ltd., Derby, England v. United States, 364 F.2d 415, 176 Ct.Cl. 694 (1966). 20 The rights of the surety are based on a contractual relationship entered into by the contractor with the government.1 The rights of the Bank, however, are not the result of any contract with the government except perhaps its contractual right (obtained from the payee) to collect the negotiable instrument. The Bank's rights flow from the endorsement. In no sense has it voluntarily entered into a direct or indirect "contractual relationship" with the government from which it expects to receive remuneration. 21 The government in this case is not the stakeholder of a contract fund because the Bank claims proceeds on a check independent of, and unrelated to, the plaintiff's claim for the contract fund. Plaintiff's rights and the rights of the Bank accrue as a result of two distinct contractual relationships — that of the contractor with defendant and that created between the Bank and the endorser of the check (including its right to collect payment obtained by that endorsement). We have refused to assert our third party jurisdiction when the government has asserted a contingent claim against a third party based on its contract with the government, because we concluded that the second contract was unrelated to the contract which formed the basis of the suit. See: Oliver-Finnie Co. v. United States, 137 F.Supp. 719, 133 Ct.Cl. 555 (1956). The government, in our case, has not asserted any rights against the Bank, contingent or otherwise. Nor has plaintiff asserted any right against the Bank. The two contracts herein involved should suffice as reason to preclude assertion of our third party jurisdiction. In addition, the government's statement that its contractual obligation is complete (thereby contesting its liability to plaintiff) makes it extremely difficult for me to classify the government a "mere stakeholder," uninterested in the ultimate recipient of the fund, willing to pay either claimant but not both. 22 I would grant the motion to dismiss. Notes: 1 We have permitted third party proceedings and thereby denied the right to a jury trial to those who have contracted with the government as subcontractors, contractors, or sureties, because such persons may be charged with the knowledge that the government, in the exercise of its sovereign immunity powers, may dictate the terms and conditions under which recovery may be obtained. See: Maryland Casualty Co. v. United States, 141 F.Supp. 900, 135 Ct.Cl. 428 (1956). One of those conditions, in a Tucker Act suit in the Court of Claims, is the absence of a jury trial. These persons have knowingly accepted this limitation in negotiating a contract with the government from which they expect to profit. The Bank, in contrast, did not contract with the government, did not accept the check in the expectation of receiving anything other than the proceeds it had paid out, and cannot, in my opinion, be held to have waived its right to a jury trial

259 B.R. 141 (2001) In re Quentin B. STENZEL, Debtor. Peoples' State Bank of Wells, Appellant, v. Quentin B. Stenzel, Appellee. No. 00-6097. United States Bankruptcy Appellate Panel of the Eighth Circuit. Submitted January 24, 2001. Filed March 2, 2001. *142 Mark C. Halverson, Stephen J. Behm, Halverson Law Office, Mankato, MN, for appellant. Brian Francis Leonard, Leonard & O'Brien, Minneapolis, MN, James J. Dailey, Mankato, MN, for appellee. Before KOGER, Chief Judge, SCHERMER and SCOTT, Bankruptcy Judges. SCHERMER, Bankruptcy Judge. Peoples' State Bank of Wells, (the "Bank") appeals the bankruptcy court order allowing Quentin B. Stenzel (the "Debtor") to claim his mother's, Elsie M. Stenzel, (the "Mother") house and the acreage on which the house is situated (collectively the "Property") as his homestead. We have jurisdiction over this appeal from the final order of the bankruptcy court, See 28 U.S.C. § 158(b). For the reasons set forth below, we reverse. ISSUE The issue on appeal is whether the Debtor "occupied" the Property, entitling him to exempt it as his homestead pursuant to M.S.A. §§ 501.01 and 510.02, when he did not reside on the Property and did not farm the land, but raised hogs in a barn prior to filing for bankruptcy relief. We conclude that the Debtor did not "occupy" the Property and therefore cannot claim it as his exempt homestead pursuant to Minnesota law. BACKGROUND For thirty-seven years, the Debtor and his wife (the "Wife") have lived on a five acre parcel they own in the City of Wells in rural Freeborn County, Minnesota (the "Domiciled Parcel"). They originally received their interest in the Domiciled Parcel from the Debtor's grandparent. The Debtors claim of a homestead exemption in the Domiciled Parcel is not contested. *143 The Mother has lived on the Property since she acquired it with her late husband sixty-two years ago. After owning the Property for fifty-one years, the Debtor's parents signed a warranty deed conveying a life estate to themselves and remainder interests to each of their three children. This deed was recorded four years later, and two years after the Debtor's father's death. A county highway separates the Property and the Domiciled Parcel. The Property consists of approximately 148 acres of tillable land, and a five to six acre building site which includes: a hog house; the Mother's house; a machine shed; a granary; two farrowing barns; a large barn; a corn crib; and a couple of storage houses. For approximately twenty-three years, the Debtor farmed the tillable land on the Property with his father. The Debtor then farmed this land alone for an additional three years. After the Debtor ceased fanning the land on the Property, the Mother rented the tillable land to J.L. Miller, a third-party, for three years. For the next five years, the Mother rented the tillable land to Albert Schuster, another third-party. The Mother then rented the land again to J.L. Miller for three years. On occasion, the Debtor worked for J.L. Miller, farming the land. The Debtor has engaged in raising hogs on the Property since he was nine or ten years of age. His hog operation involved use of the Domiciled Parcel and the barns on the Property. The Debtor used the barns with the Mother's permission. He paid for water, supplies, electricity and paid insurance for the hogs on the Property. On September, 20, 1999, the Debtor filed for chapter 7 bankruptcy relief. Within the year preceding his filing date, the Debtor liquidated the balance of his live-stock. On the filing date, the Debtor was not engaged in any type of farming activity or hog operations on the Property. At the meeting of creditors, the Debtor testified that he did not have an interest in any real estate except for the Domiciled Parcel. He stated that his homestead was on the Domiciled Parcel and that his farming operation took place mostly on the Domiciled Parcel with some operations on the Property. The Debtor received a discharge two months after his bankruptcy filing. After the discharge, the Bank and the trustee (the "Trustee") notified the Debtor of their discovery of the Debtor's one-third remainder interest in the Property. The Debtor then amended his bankruptcy schedules and claimed homestead exemptions for both the Domiciled Parcel and the Property. The Bank and the Trustee objected to the Debtor's claimed exemptions. The Debtor filed a response stating that he intended to engage in hog operations and farm the tillable land on the Property in the future. In his deposition of July 2000, the Debtor stated that he was cleaning and disinfecting the hog barns on the Property at the time of filing. Since the deposition, the Debtor has been conducting the hog operation on the Property and not on the Domiciled Parcel. The Debtor claimed that he thought that he would continue to farm the Property after his father's death and that he would inherit the Property with his two sisters. In her deposition, the Mother stated that she thought that the Debtor would go back to farming the land on the Property and that her three children would share full ownership, of the Property when she passed away. All parties submitted motion for summary judgment. In affidavits of the Debtor and the Mother submitted in support of the Debtor's motion for summary judgment, each stated that the Debtor and the Wife routinely assist the Mother in cleaning and maintaining her house and getting her to doctor's appointments. The bankruptcy court found that the Debtor "owned" the Property under the meaning of that term in M.S.A. § 510.01. Further, the court held that the Debtor established that the Domiciled Parcel and *144 the Property were contiguous under Minnesota Law and therefore constituted a single unit for purposes of the homestead exemption. The court then held that occupancy was a fact issue and that the Debtor met his burden of proving occupancy because he had a longstanding presence on the Property. According to the court, whether the Debtor had a right to possession that was legally enforceable against a life tenant was irrelevant because, as a matter of fact, the Debtor used the Property. All 155 acres of the Property were exempt as the Debtor's homestead pursuant to M.S.A. §§ 510.01 and 510.02.[1] STANDARD OF REVIEW The facts are not in dispute. This Court reviews de novo the bankruptcy court's legal conclusions, and reviews for clear error its findings of fact. Fed. R.Bankr.P. 8013. Martin v. Cox (In re Martin), 140 F.3d 806, 807 (8th Cir.1998); Gourley v. Usery (In re Usery), 123 F.3d 1089, 1093 (8th Cir.1997). A federal court is bound by decisions of the highest state court when deciding a question of substantive law. Bass v. General Motors Corp., 150 F.3d 842, 847 (8th Cir.1998). The Bankruptcy Appellate Panel reviews the bankruptcy court's determinations of state law de novo. In re Simmonds, 240 B.R. 897 (8th Cir. BAP 1999). DISCUSSION According to 11 U.S.C. § 522(b)(2)(A), a debtor may exempt from the bankruptcy estate any property which is exempt under applicable state or local law on the date of filing of the petition. The party objecting to the debtor's claimed exemption has the burden of proving that the debtor is not entitled to the exemption. In re Curry, 160 B.R. 813, 817 (Bankr.D.Minn.1993). Although the homestead provision is to be liberally construed, the interpretation is not to be strained. Ross v. Simser, 193 Minn. 407, 258 N.W. 582, 583 (1935); Vickery v. First Bank of LaCrosse, 368 N.W.2d 758, 762 (Minn.Ct. App.1985). Section 510.01 of the Minnesota Revised Statutes defines "homestead" for purposes of the Minnesota homestead exemption. That section states: The house owned and occupied by the debtor as the debtor's dwelling place, together with land upon which it is situated to the amount of area and value hereinafter limited and defined shall constitute the homestead of such debtor and the debtor's family, and be exempt from seizure or sale under legal process on account of any debt not lawfully charged thereon in writing. A debtor must "own and occupy" a home upon the land to qualify for a homestead exemption under M.S.A. § 510.01. A homestead is defined as a person's legal home and dwelling place. Clark v. Dewey, 71 Minn. 108, 73 N.W. 639 (1898). As long as the debtor actually resides on the parcel, a homestead may be used for purposes other than as a dwelling. In re Lockey's Estate, 112 Minn. 512, 128 N.W. 833, 834 (1910). The term "occupancy" in the homestead exemption statute refers to the debtor's actual occupancy. Quehl v. Peterson, 47 Minn. 13, 49 N.W. 390, 391 (1891). To fulfill the actual occupancy requirement, a debtor does not need to have a constant physical presence, so as to make a man's residence his prison. In re Smoinikar, 200 B.R. 640, 644 (Bankr. D.Minn.1996). Actual occupancy, however, requires more than an intent to occupy the *145 property in the future.[2]Id. (quoting Clark v. Dewey, 71 Minn. 108, 73 N.W. 639, 639-40 (1898)). Deciding Whether the "Occupy" Element of M.S.A. § 510.01 is Satisfied is a Legal, not Factual, Determination. The Bank argued that the bankruptcy court improperly decided that occupancy under M.S.A. § 510.01 may be satisfied on a factual, instead of legal, basis. The bankruptcy court noted that whether or not the Debtor had a legal right to occupy the property as of filing, the Debtor did maintain a physical presence in an income-producing use of the property with the permission of the life tenant as a matter of fact. According to the bankruptcy court, that was enough to prove occupancy under M.S.A. § 510.01. We disagree with the bankruptcy court and hold that occupancy under M.S.A. § 510.01 requires a determination of a legal, not merely factual, right of occupancy and possession. Minnesota law requires a legal right to occupancy and possession of a parcel of real estate for which a homestead exemption is claimed under M.S.A. § 510.01. See Kelly v. Baker, 10 Minn. 154 (Minn.1865) (allowing a debtor to exempt a two story building as his homestead where part of the building was used as his dwelling and part was rented by a third-party for commercial purposes because the debtor had both an ownership interest and the exclusive right to occupy and possess the budding in its entirety if he so chose); In re Emerson, 58 Minn. 450, 60 N.W. 23 (1894) (holding that the character of the ownership does not matter as long as the debtor has a legal right of possession and occupancy to the property); Fidelity Philadelphia Trust Co. v. Brown, 181 Minn. 392, 232 N.W. 740 (1930) (finding that the debtor was allowed to exempt a hotel as his homestead where the debtor had the exclusive right to occupy the hotel). The bankruptcy court's conclusion that M.S.A. § 510.01 requires only a factual, not legal, right to occupancy was incorrect. The Debtor did not Occupy the Property The Debtor did not meet his burden of proof that he had a legally enforceable right to occupy the Property. The Debtor failed to prove that he had a legally valid present possessory interest in the Property and that he resided on the Property on the filing date. There is no evidence of a contract between the Debtor and his mother giving the Debtor a legal right to possess and occupy the Property. As a life tenant, the Mother has the right to exclusive use, possession, and occupancy of the Property. See In re Ehrich, 110 B.R. 424, 426 (Bankr.D.Minn.1990). Without a contract from the Mother granting the Debtor the right to be present on and use the Property, the Debtor is on the Mother's land at her will. At any time during her life, the Mother could change her course of dealings with the Debtor and prohibit him from using, possessing, and occupying her Property. The Mother made no legal agreement to convey any portion of her occupancy rights to the Debtor. If the Mother had filed for bankruptcy relief on the same day as her son, she would have had a right to claim the Property exempt as her homestead pursuant to M.S.A. §§ 510.01 and 510.02. She clearly has an ownership right in the Property due to her life estate and could prove that she "occupies" the Property as its sole resident. The purpose of enacting M.S.A. § 510.01 was to help preserve the *146 homestead for people like the Mother, not the Debtor. As the Minnesota Supreme Court stated in Denzer v. Prendergast, 267 Minn. 212, 126 N.W.2d 440, 444 (1964), the test to determine whether a house is "owned and occupied" under the Minnesota homestead statute, is whether such ownership and occupancy affords a community connection that is significant enough to give reason to believe that the preservation of that connection will, in the long run, make the Debtor and his family better able to fulfill their social obligation to be self-sustaining. The homestead exemption is designed to protect a debtor's home from creditors. Application of Jensen, 414 N.W.2d 742, 745 (Minn.App.1987). The intent of the homestead exemption is to secure a debtor's home against uncertainties and misfortunes of life and to preserve the home as a dwelling for the debtor and his or her family. In re Mueller, 215 B.R. 1018, 1023 (8th Cir. BAP 1998). See also In re Johnson, 207 B.R. 878, 881, n. 6, citing Denzer, 126 N.W.2d at 444 (Bankr.D.Minn.1997) (prevention of destitution and dependency of families and promotion of independence over generations were the purposes for enacting the Minnesota homestead exemption statute). The Mother is the one who depends on the house and land to ensure her independence and self-support. The Debtor relies on Denzer and Brixius v. Reimringer, 101 Minn. 347, 112 N.W. 273 (1908), to support his argument that he should be able to exempt the Property as his homestead. Both cases are factually distinct from the case at bar. In Denzer, the debtor lived in a house on the property he claimed as exempt. The court in Brixius considered two pieces of property that were connected at the corner to be one parcel even though a road ran between the two pieces of property. The two pieces of property operated as one parcel and the debtor had exclusive ownership and occupancy rights to both properties. The Debtor cannot show that the Domiciled Parcel and the Property operate as one and he does not have exclusive ownership or occupancy rights to both of the parcels. The Bank argues that the bankruptcy court improperly held that the facts that the Debtor did not live anywhere on the Property and was not farming the land on the date of filing were irrelevant. We agree with the Bank. A debtor must live on the property at the time of his bankruptcy filing to claim such property as his exempt homestead. Smoinikar, 200 B.R. at 642-43. The Debtor could not claim the Property as his exempt homestead. CONCLUSION The bankruptcy court incorrectly held that the determination of whether the Debtor "occupied" the Property for the purposes of M.S.A. § 510.01 could be determined based on the facts, instead of solely based on a legal right to possession or occupancy. The bankruptcy court erred by concluding that the Debtor occupied the Property pursuant to M.S.A. § 510.01 and could therefore claim the Property as his exempt homestead. For the foregoing reasons, the judgment of the bankruptcy court is reversed. NOTES [1] Pursuant to Section 510.02 of the Minnesota Statutes, "[t]he homestead may include any quantity of land not exceeding 160 acres, and not included in the laid out or platted portion of any city." Because the Debtor had already claimed an exemption for the five acres of the Domiciled Parcel, he would only be able to exempt up to an additional 155 acres in property as his homestead. The Debtor only requests an exemption for the Property to the extent that it, together with the exemption for the Domiciled Parcel, total the 160 acre statutory limit. [2] The bankruptcy court listed the Debtor's intent to occupy the Property in the future as a factor supporting the finding that the Debtor satisfied the "occupancy" element of M.S.A. § 510.01. According to the Minnesota, Supreme Court intent is not enough to support a holding of actual occupancy. See Smoinikar, 200 B.R. at 644 (citing Muscala v. Wirtjes, 310 N.W.2d 696, 698 (Minn.1981)).

In The Court of Appeals For The First District of Texas ____________ NO. 01-07-00890-CR ____________ COURTNEY BARNARD CALDWELL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 1104136 MEMORANDUM OPINION A jury found appellant, Courtney Barnard Caldwell, guilty of aggravated robbery and assessed punishment at 46 years in prison. See Tex. Pen. Code Ann. § 29.02(2) (Vernon 2003). In a single point of error, appellant contends that the trial court erred by denying his motion to suppress and thereby permitting the complaining witness to identify appellant at trial because the photo array in which the witness identified appellant before trial was impermissibly suggestive. We affirm. Background Lawrence Stephens was the victim of a car-jacking by two black males on February 7, 2007. Just before dark, as Stephens drove his car, a black Lexus with luxury rims, into an apartment complex, a tall, dark man with braids approached Stephens's vehicle and asked for a cigarette lighter. After reaching to retrieve his car lighter, Stephens turned to face a long, black revolver about six inches from his face. The gunman took Stephens's cell phone and demanded his car keys. Stephens recognized the gunman from a tattoo parlor, but said nothing, got out of the car, and surrendered the keys. As Stephens was handing over his car keys, appellant came up behind Stephens. Appellant had pulled his jacket up, but was only six feet behind Stephens. Stephens saw appellant's face, however, though only briefly, and stated at trial that he recognized appellant from a club they had both frequented. Appellant demanded money and the key to unlock the tire rims on Stephens's car, and the gunman told Stephens to lie on the ground, face down. When the car would not start, because Stephens had installed a kill switch, the gunman forced Stephens to start the car. The gunman then drove away in Stephens's car, and appellant went to another vehicle and left the scene. Stephens contacted police and described the assailants. Police recovered Stephens's car the next day. It had been stripped and abandoned, but police recovered appellant's fingerprint from the outside of Stephens's car, and an officer constructed a photo array that contained appellant's photo. Stephens identified appellant from the array on February 12, 2007, five days after the robbery. Stephens signed the array, on which he circled the photo of appellant. Appellant was arrested on February 16, 2007, when a vehicle in which he was a passenger was stopped for a traffic offense . Identification of Appellant In his sole point of error, appellant contends that the trial court erred by denying appellant's pretrial motion to suppress Stephens's identifying him before trial from the photo array and thus permitting Stephens to identify appellant at trial because the photo array was impermissibly suggestive, had tainted Stephens's pretrial identification of appellant, and had substantially increased the likelihood that Stephens would misidentify appellant at trial. A. Standard of Review A defendant who contends that an in-court identification is inadmissible must prove by clear and convincing evidence that the in-court identification is unreliable. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). We apply a two-step analysis on appeal. Id. We first determine whether the pretrial photo display was impermissibly suggestive. Id. If we conclude that the pretrial photo display was impermissibly suggestive, we then determine whether it gave rise to a very substantial likelihood of irreparable misidentification, id., based on the factors established in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382 (1972). See Ibarra v. State, 11 S.W.3d 189, 196 (Tex. Crim. App. 1999) (applying Biggers factors). We will uphold the trial court's decision to admit the identification unless the trial court clearly abused its discretion. Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). B. Whether the Pretrial Photo Display was Impermissibly Suggestive Appellant contends that the pretrial photo display shown to Stephens was impermissibly suggestive because only the photo of him, among those in the display, showed an individual with a facial tattoo, specifically, a tear-shaped tattoo beneath the right eye. It is undisputed that appellant appeared at trial with a tear-shaped tattoo beneath his right eye, but the record does not support appellant's contention that the photo display shown to Stephens contained a photo of appellant with the tattoo. State's Exhibit 17 confirms that photo display from which Stephens identified appellant before trial did not include a photo of appellant with any type of facial tattoo. (1) In addition, the record establishes that the photo used in the array presented to Stephens had been taken in November 2006, more than a year before the aggravated robbery took place. The record further supports that appellant obtained the tattoo after the aggravated robbery of Stephens. The police officer who presented the photo array to Stephens on February 12, 2007 also interviewed appellant shortly after he was arrested on February 16, 2007. As the officer explained under cross-examination during the pretrial hearing on appellant's motion to suppress, appellant's appearance during the interview differed from his appearance in the earlier photo used in the array because appellant had a tattoo that appeared "fresh . . . that day" and appeared to be "still wet, real dark." The officer was able to make that determination based on his personal experience, having obtained a tattoo himself. We note further that there is no evidence of any conduct by a police officer during the photo array presented to Stephens that was impermissibly suggestive. See Ibarra, 11 S.W.3d at 196. The officer did not suggest that the array contained a photo of the suspect and did not tell Stephens that he had to choose someone from the display. Indeed, the page of instructions that accompanied the photo array Stephens signed indicated the importance of clearing innocent individuals. Likewise, nothing in the display distinguished appellant in any appreciable respect. See Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). There was only one array of photos shown to Stephens, and the individuals in the array had the same skin tone, haircut, and facial features. For these reasons, we hold that the photo array presented to Stephens, from which he identified appellant before trial, was not impermissibly suggestive. Accordingly, we need not assess whether there was any likelihood that Stephens's pretrial identification of appellant tainted Stephens's trial testimony identifying appellant. We overrule appellant's sole point of error. Conclusion We affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Nuchia and Higley. Do not publish. Tex. R. App. P. 47.2(b). 1. The record contains a photo array that depicts appellant with a tattoo, but that array had been shown to a different witness, who did not testify until the punishment stage of the trial.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-6670 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus CARLOS JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, District Judge. (CR-02-3; CA-04-158-4) Submitted: November 22, 2005 Decided: December 2, 2005 Before MOTZ, TRAXLER, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Carlos Johnson, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Carlos Johnson seeks to appeal the district court's orders dismissing as untimely his 28 U.S.C. § 2255 (2000) motion and denying his motion to alter or amend judgment. An appeal may not be taken from the final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Johnson has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss his appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 2 - 

FILED NOT FOR PUBLICATION NOV 25 2015 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JINGRU LIANG; WENQIAO XU, No. 13-73111 Petitioners, Agency Nos. A200-264-829 A200-264-830 v. LORETTA E. LYNCH, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 18, 2015** Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges. Jingru Liang and Wenqiao Xu, natives and citizen of China, petition pro se for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s decision denying Liang’s application for asylum, withholding of removal, and protection under the Convention Against Torture * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006), and we deny the petition for review. Substantial evidence supports the agency’s determination that, even if credible, Liang’s experiences in China, considered cumulatively, did not rise to the level of persecution. See id. at 1019-21. Substantial evidence also supports the agency’s finding that Liang did not demonstrate a well-founded fear of future persecution. See id. at 1022 (petitioner failed to present “compelling, objective evidence demonstrating a well-founded fear of persecution”); Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of persecution “too speculative”). Thus, Liang’s asylum claim fails. See Nagoulko, 333 F.3d at 1018. Because Liang failed to establish eligibility for asylum, her withholding of removal claim necessarily fails. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). Finally, substantial evidence supports the agency’s denial of Liang’s CAT claim because she failed to establish it is more likely than not she would be tortured by or the consent or acquiesce of the government if returned to China. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). PETITION FOR REVIEW DENIED. 2 13-73111 

771 N.E.2d 619 (2002) 331 Ill. App.3d 77 264 Ill.Dec. 915 Martha RAMIREZ, Indiv. and as Parent, Next Friend, and Guardian of the Estate of Gamaliel Ramirez, a Minor, Deceased, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant. No. 2-01-0608. Appellate Court of Illinois, Second District. June 11, 2002. *620 Anmarie C. Brandenburg, Mateer & Associates, Rockford, for State Farm Mutual Automobile Insurance Co. Debra A. Delia, Oliver, Close, Worden, Winkler & Greenwald, Rockford, for Martha Ramirez. Justice GROMETER delivered the opinion of the court: Defendant, State Farm Mutual Automobile Insurance Company (State Farm), appeals from a summary judgment granted by the trial court in favor of plaintiff, Martha Ramirez, in this declaratory judgment action. Plaintiff brought the action individually and as parent, next friend, and guardian of the estate of her deceased minor son, Gamaliel Ramirez (Gamaliel), seeking a declaratory judgment that the uninsured motorist provisions in an automobile insurance policy that State Farm had issued to her covered the damages related to Gamaliel's injuries and death. Gamaliel's death resulted from gunshots fired from an uninsured vehicle at plaintiff's car while Gamaliel was driving plaintiff's car. For the reasons that follow, we conclude that the uninsured motorist provisions of plaintiff's policy did not provide coverage and reverse the summary judgment. The material facts are not in dispute. Around midnight on November 1, 1997, Gamaliel was driving plaintiff's car in Rockford. Antonio Ramirez, the only passenger in the car, was sitting in the front passenger seat. Another car, driven by Jasim Mohamed Albaiaty, began to follow plaintiff's car. There were two passengers in Albaiaty's car, Ricardo "Ricky" Diaz and Rey Velarde. Gamaliel attempted to get away from Albaiaty's car. However, Albaiaty's car continued to follow plaintiff's car for about 40 blocks. When Gamaliel slowed plaintiff's car for a railroad crossing, Albaiaty's car pulled next to the driver's side of plaintiff's car. Velarde, one of the passengers in Albaiaty's car, then fired about 10 or 11 gunshots at plaintiff's car. One of the gunshots hit Gamaliel in the left arm and passed into his chest. After Velarde fired the shots, Albaiaty's car briefly came into contact *621 with plaintiff's car. Albaiaty's car then sped away. Shortly after being shot, Gamaliel passed out and was unable to maintain control of plaintiff's car. Plaintiff's car then left the road, struck some property near a building, and eventually hit a light pole. Gamaliel was taken to a hospital where he received emergency treatment. Gamaliel died at the hospital. The cause of Gamaliel's death was the gunshot wound to the chest. Albaiaty and Velarde were charged with the murder of Gamaliel. Albaiaty and Velarde each pleaded guilty to the offense. Diaz pleaded guilty to related minor offenses. Plaintiff filed a claim with State Farm for the damages resulting from Gamaliel's injuries and death. Plaintiff sought coverage under the uninsured motorist provisions in an automobile insurance policy that State Farm had issued to plaintiff. The policy was in force on November 1, 1997. State Farm subsequently determined that plaintiff was not entitled to coverage for the claimed damages under the uninsured motorist provisions in the policy and denied plaintiff's claim. State Farm also declined plaintiff's request to proceed to arbitration on the matter. The uninsured motorist provisions in the policy stated, in pertinent part: "We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be sustained by an insured and caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle." (Emphasis in original.) Following State Farm's denial of her claim, plaintiff filed this action seeking a declaratory judgment that she was entitled to coverage for the claimed damages under the uninsured motorist provisions of the policy. The parties filed cross-motions for summary judgment. The trial court determined that the incident in question was an "accident" and that the incident "arose out of the use and operation of Albaiaty's uninsured vehicle. Based on these determinations, the trial court ruled that the uninsured motorist provisions in the policy provided coverage for plaintiff's claimed damages and granted plaintiff's motion for summary judgment. State Farm's timely notice of appeal followed. On appeal, State Farm contends that the trial court erred in granting summary judgment in favor of plaintiff. State Farm acknowledges that, under the terms of the policy, Gamaliel was an insured driver and Albaiaty was an uninsured motorist. State Farm argued in its initial appellate brief that the trial court erred in determining that Gamaliel's death was caused by an "accident" and in determining that the accident "arose out of the operation and use of Albaiaty's uninsured vehicle for purposes of the uninsured motorist provisions in the policy. However, in its reply brief, State Farm acknowledged that the parties agree that Gamaliel's injuries arose by "accident." Thus, we express no opinion whatsoever as to whether Gamaliel's death was the result of an accident. Therefore, the only issue before us is whether the trial court erred in determining that the accident "arose out of the operation and use of Albaiaty's vehicle. Familiar principles guide us in reviewing a grant of summary judgment. Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any *622 material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2000). Summary judgment is a drastic measure and therefore a court should grant summary judgment only when the movant's right to judgment is clear and free from doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102, 180 Ill. Dec. 691, 607 N.E.2d 1204 (1992). We review de novo the propriety of an order granting a motion for summary judgment. Traveler's Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill.2d 278; 292, 258 Ill. Dec. 792, 757 N.E.2d 481 (2001). In construing an insurance policy, the primary objective is to ascertain and give effect to the intent of the parties to the contract. Outboard Marine Corp., 154 Ill.2d at 108, 180 Ill.Dec. 691, 607 N.E.2d 1204. Courts should construe an insurance policy as a whole and take into account the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill.2d 384, 391, 189 Ill. Dec. 756, 620 N.E.2d 1073 (1993). If the words of a policy are clear and unambiguous, a court must afford them their plain, ordinary, and popular meaning. Outboard Marine Corp., 154 Ill.2d at 108, 180 Ill. Dec. 691, 607 N.E.2d 1204. Conversely, if the language in a policy is susceptible to more than one meaning, it is considered ambiguous and a court should construe it strictly against the insurer that drafted the policy and in favor of the insured. American States Insurance Co. v. Koloms, 177 Ill.2d 473, 479, 227 Ill.Dec. 149, 687 N.E.2d 72 (1997). Courts should not strain to find ambiguity in an insurance policy where none exists. Crum & Forster Managers Corp., 156 Ill.2d at 391, 189 Ill.Dec. 756, 620 N.E.2d 1073. In support of its position that the trial court erred in determining that the accident arose out of the operation and use of Albaiaty's vehicle, State Farm relies on a line of Illinois cases that involved uninsured motorist provisions in automobile insurance policies similar to the uninsured motorist provisions in the policy in this case. The cases relied on by State Farm also involved circumstances that were more or less similar to the circumstances in this case. One of the cases relied on by State Farm is Curtis v. Birch, 114 Ill.App.3d 127, 69 Ill.Dec. 873, 448 N.E.2d 591 (1983). In Curtis, the issue was whether the trial court erred in dismissing the count of a multicount complaint alleging that the uninsured motorist provisions in an automobile insurance policy provided coverage for certain damages. The damages allegedly resulted from the shooting death of a passenger in an insured car which was apparently parked at the time of the shooting. The driver of an uninsured vehicle allegedly fired the shots that killed the victim. In Curtis, the appellate court affirmed the dismissal of the count in question after noting that the purpose of uninsured motorist coverage is to place the policyholder in substantially the same position he would have occupied if the wrongful driver had the minimum liability insurance required by Illinois law. Curtis, 114 Ill.App.3d at 130-31, 69 Ill.Dec. 873, 448 N.E.2d 591. The court stated that it had not found, and was otherwise unaware of, anything that indicated "that the legislature anticipated or intended that the liability of an insurer could be established by the intentional, criminal conduct, such as that involved here." Curtis, 114 Ill.App.3d at 131, 69 Ill.Dec. 873, 448 N.E.2d 591. The court also stated that the "few cases which have allowed an insured to recover, under an *623 uninsured motorist's provision of an auto insurance policy for intentional acts of the uninsured or unknown driver, involved injuries caused by the use of the auto as the instrumentality of the resultant injuries." Curtis, 114 Ill.App.3d at 131, 69 Ill.Dec. 873, 448 N.E.2d 591. Another case that State Farm relies on is Aryainejad v. Economy Fire & Casualty Co., 278 Ill.App.3d 1049, 215 Ill.Dec. 593, 663 N.E.2d 1107 (1996). In Aryainejad, an uninsured motorist, Duffy, had been drinking and ran out of gas on Interstate 57. Duffy left his vehicle and began walking to a gas station. The plaintiff, Aryainejad, was driving his insured vehicle on 1-57 when he encountered Duffy walking toward him in the middle of a traffic lane. In attempting to avoid hitting Duffy, Aryainejad lost control of his vehicle, crashed, and sustained serious injuries. Aryainejad later filed a claim for uninsured motorist coverage under his automobile insurance policy with the defendant insurance company. The parties filed cross-motions for summary judgment agreeing that the sole issue was whether Aryainejad's accident arose out of Duffy's ownership, maintenance, or use of his vehicle. The trial court ruled in favor of the defendant and Aryainejad appealed. Aryainejad, 278 Ill.App.3d at 1050, 215 Ill. Dec. 593, 663 N.E.2d 1107. In Aryainejad, the appellate court noted that many courts throughout the country had examined "arising out of language in automobile insurance policies and had construed the terms broadly to mean "originating from, incident to, or having a causal connection with the ownership, maintenance or use of the vehicle." Aryainejad, 278 Ill.App.3d at 1051, 215 Ill.Dec. 593, 663 N.E.2d 1107. The appellate court stated that a majority of the courts that had construed "arising out of language held that "there must be a causal relationship between the injury and the ownership, maintenance or use of the vehicle for coverage to apply." Aryainejad, 278 Ill. App.3d at 1052, 215 Ill.Dec. 593, 663 N.E.2d 1107. The appellate court also concluded that no uniform causation standard or test for resolving the causation question had been adopted. Aryainejad, 278 Ill.App.3d at 1052, 215 Ill.Dec. 593, 663 N.E.2d 1107. In Aryainejad, the appellate court evaluated various tests used by courts that focus solely on causation. These tests include the "substantial nexus" test and the "efficient and predominating cause" test. The appellate court decided that such tests did not provide an adequate analytical framework for resolving the frequently litigated issue of construing "arising out of language. Aryainejad, 278 Ill.App.3d at 1054, 215 Ill.Dec. 593, 663 N.E.2d 1107. The appellate court then stated: "The better approach is to eschew such tests and follow the courts that afford coverage where the injuries resulted from an activity that is within the risk reasonably contemplated by the parties. We therefore adopt this approach * * *." Aryainejad, 278 Ill.App.3d at 1054, 215 Ill.Dec. 593, 663 N.E.2d 1107. In applying this "reasonable contemplation" test, the Aryainejad court held that the injuries Aryainejad sustained as a result of Duffy's conduct were covered by the uninsured motorist provisions in Aryainejad's policy. The court determined that Duffy's conduct in running out of gas and then walking on the interstate to get more gas was within the risks contemplated by the parties to the policy because the conduct was incident to Duffy's usage of his vehicle. In distinguishing cases relied on by the insurance company, the appellate court stated: "We agree that an automobile must do more than merely transport a person to *624 the site where an accident occurs for coverage to apply and that an assault by the driver of a vehicle is an act which is independent and unrelated to the ownership, maintenance or use of a vehicle. Regardless of whether a vehicle creates a condition that leads to an assault, injuries resulting from an assault are not a normal or reasonable consequence of the use of a vehicle. In other words, because physical altercations are not reasonably consistent with the inherent nature of the vehicle, they are not risks for which the parties to automobile insurance contracts would reasonably contemplate there would be coverage. On the other hand, walking down the highway after a vehicle breaks down or runs out of gas is a reasonable consequence of the use of a vehicle." Aryainejad, 278 Ill.App.3d at 1054-55, 215 Ill.Dec. 593, 663 N.E.2d 1107. Another case that State Farm relies on is Laycock v. American Family Mutual Insurance Co., 289 Ill.App.3d 264, 224 Ill. Dec. 821, 682 N.E.2d 382 (1997). In Laycock, an uninsured vehicle chased, cut off, and forced to a stop a car insured by the defendant insurance company and driven by Steven Laycock, an insured, after the two vehicles had nearly collided. Jungles, the driver of the uninsured vehicle, then exited his vehicle, and while shouting threats and obscenities at Steven, beat Steven on the face, head, neck, and eyes through Steven's open window causing injuries to Steven. After Jungles was convicted of battery, plaintiffs obtained a civil judgment against Jungles in the amount of $15,000, but the insurance company refused to pay the damages under plaintiffs' uninsured motorist claim and refused to arbitrate. Plaintiffs then filed a declaratory judgment action against the insurance company. In the declaratory judgment action in Laycock, the parties filed cross-motions for summary judgment on the issue of whether the incident in which Steven was injured arose out of the use of Jungles' uninsured motor vehicle and therefore was covered by the uninsured motorist provisions of plaintiffs' policy. The trial court determined that the uninsured motorist provisions did not apply to the incident and ruled in favor of the insurance company. Plaintiffs then appealed. On appeal in Laycock, this court recognized that the words "arisingout of in an automobile insurance policy have been broadly construed to mean, inter alia, having a causal connection with the use of a vehicle. Nonetheless, this court determined that the uninsured motorist provisions in the policy did not provide coverage for plaintiffs because "the act of leaving the vehicle and inflicting a battery is an event of independent significance that is too remote, incidental, or tenuous to support a causal connection with the use of the vehicle despite the fact that the vehicle was used to stop and trap another vehicle." Laycock, 289 Ill.App.3d at 268, 224 Ill.Dec. 821, 682 N.E.2d 382. In Laycock, this court also applied the reasonable contemplation test that the appellate court adopted in Aryainejad. Under the reasonable contemplation test this court concluded that the injuries to Steven were not among the risks that the parties to the policy reasonably contemplated would be covered. This court held that the trial court correctly concluded that the policy did not provide coverage and explained its holding by referring to Aryainejad and stating: "We agree that an assault by the driver of a vehicle is an act that is independent of and unrelated to the use of a vehicle and is not a normal or reasonable consequence of the use of a vehicle. Therefore, *625 it is not a risk for which the parties to the contract reasonably contemplated there would be coverage." Laycock, 289 Ill.App.3d at 269, 224 Ill.Dec. 821, 682 N.E.2d 382. Another case that State Farm relies on is State Farm Fire & Casualty Co. v. Rosenberg, 319 Ill.App.3d 744, 253 Ill.Dec. 793, 746 N.E.2d 35 (2001). In Rosenberg, Rosenberg, the owner of an insured vehicle, encountered a man, Tripp, in a parking lot. Tripp commandeered Rosenberg's vehicle and drove off in the vehicle with Rosenberg in the passenger seat. On the Edens Expressway, Tripp shot Rosenberg in the head and arm and then pushed her out of the vehicle while it was moving. Rosenberg subsequently filed a claim with her insurer under the uninsured motorist provisions of her automobile insurance policy (the vehicle was considered an uninsured vehicle while Tripp was driving it because Tripp was not an insured driver). In a declaratory judgment action brought by the insurance company, the parties filed cross-motions for summary judgment. The trial court found that the uninsured motorist provisions of the policy did not provide coverage for Rosenberg's injuries because the injuries were not injuries normally associated with the ownership, maintenance, or use of a vehicle and granted summary judgment in favor of the insurance company. Rosenberg then appealed. On appeal in Rosenberg, the appellate court construed language in the uninsured motorist section of Rosenberg's policy that stated, in pertinent part, that the coverage applied to an accident "`arising out of the operation, maintenance or use of an uninsured motor vehicle.'" (Emphasis omitted.) Rosenberg, 319 Ill.App.3d at 747, 253 Ill.Dec. 793, 746 N.E.2d 35. The appellate court discussed various cases including Curtis, Aryainejad, and Laycock and affirmed the trial court's grant of summary judgment in favor of the insurance company. The appellate court stated: "[T]he injuries sustained by defendant were the result of gunshot wounds inflicted by Tripp before he pushed defendant out of the vehicle. There was no direct connection between the injuries Rosenberg seeks compensation for and the operation or use of her vehicle. The `accident' in this case did not arise out of the manner in which the uninsured vehicle was being driven * * *." Rosenberg, 319 Ill.App.3d at 748, 253 Ill.Dec. 793, 746 N.E.2d 35. Here, plaintiff first responds to the cases cited by State Farm by citing two Illinois cases, Dyer v. American Family Insurance Co., 159 Ill.App.3d 766, 111 Ill. Dec. 530, 512 N.E.2d 1071 (1987), and Country Cos. v. Bourbon, 122 Ill.App.3d 1061, 78 Ill.Dec. 407, 462 N.E.2d 526 (1984). Plaintiff maintains that these cases show that Illinois courts have construed provisions in uninsured motorist policies to provide coverage for injuries resulting from intentional criminal acts. Neither Dyer nor Bourbon construed "arising out of language. The policy at issue in Dyer did not even contain "arising out of language among its uninsured motorist provisions. Rather, the policy allowed uninsured motorist coverage merely for injuries that were caused by an "accident." Dyer, 159 Ill.App.3d at 769, 111 Ill.Dec. 530, 512 N.E.2d 1071. The policy in Bourbon contained "arising out of language among its uninsured motorist provisions, but the Bourbon court did not construe this language. Rather, the court focused on whether the incident in that case should be considered an "accident." Bourbon, 122 Ill.App.3d at 1066-67, 78 Ill. Dec. 407, 462 N.E.2d 526. Because neither Dyer nor Bourbon construed "arising out of language, the issue that is before us in this case, plaintiff's reliance on Dyer and Bourbon is misplaced. *626 Plaintiff also cites a number of foreign cases. However, these cases either did not construe "arising out of language or are unpersuasive. Accordingly, we choose not to follow any of the foreign cases cited by plaintiff. Based on Curtis, Aryainejad, Laycock, and Rosenberg, we believe that the appropriate analysis for construing "arising out of language in the context of uninsured motorist provisions of an automobile insurance policy is the reasonable contemplation test. We will therefore apply the reasonable contemplation test in this case. The cause of Gamaliel's injuries and death was a gunshot that was fired from another vehicle. The shot hit Gamaliel while he was driving plaintiff's vehicle. It is true that the other vehicle was an uninsured vehicle. However, the instrumentality of Gamaliel's injuries and death was the gun that the passenger in the uninsured vehicle fired at Gamaliel. The operation or use of the uninsured vehicle was not the instrumentality that caused the injuries and death of Gamaliel. Because the uninsured motorist provisions in plaintiff's policy allow coverage only for injuries that occurred during an accident that arose out of the operation or use of an uninsured vehicle, the plain language of the policy precludes coverage for the injuries that Gamaliel sustained as a result of the gunshot that struck him. Therefore, we conclude that it was not within the reasonable contemplation of the parties to plaintiff's automobile insurance policy that the "arising out of' language in the uninsured motorist provisions of plaintiff's policy would apply and provide coverage for the injuries that resulted from the situation that occurred in this case. Accordingly, the trial court erred when it determined that the "accident" that occurred in this case "arose out of the operation or use of an uninsured vehicle. Plaintiff also contends that the summary judgment in her favor should be affirmed because the "arising out of language in the uninsured motorist provisions of the policy creates a latent ambiguity in the policy. Plaintiff asserts, that the ambiguity is shown by the inconsistent construction of similar terms by various courts. Plaintiff argues that we should construe the ambiguity against State Farm and in her favor. We disagree. Under Curtis, Aryainejad, Laycock, and Rosenberg, the terms "arising out of are sufficiently unambiguous to be tested as to their applicability in a given set of circumstances using the reasonable contemplation test. We recognize that the applicability of the terms will vary with the circumstances. However, this does not render the terms ambiguous. Based on the foregoing, the judgment of the circuit court of Winnebago County is reversed. Reversed. McLAREN and BOWMAN, JJ., concur.

431 F.Supp. 496 (1977) UNITED STATES of America, Plaintiff, v. CITY OF PAINESVILLE, Defendant. No. C76-324. United States District Court, N. D. Ohio, E. D. January 19, 1977. *497 Peter R. Taft, Asst. Atty. Gen., Land Natural Resources Div., Alfred T. Ghiorzi, Chief, Pollution Control Section, Michael P. Carlton, Atty., Pollution Control Section, Washington D. C., Joseph A. Cipollone, Asst. U.S. Atty., Cleveland, Ohio, for plaintiff. Charles E. Cannon, Milburn, Cannon, Stern & Aveni, Painesville, Ohio, for defendant. MEMORANDUM AND ORDER MANOS, District Judge. On April 2, 1976 the plaintiff, the United States of America, filed a complaint requesting that the defendant, the City of Painesville, a municipal corporation, be enjoined from operating a steam generating coal fired power unit in violation of the Clean Air Act, 42 U.S.C. § 1857c-6(e) and the Standards of Performance For New Stationary Sources, promulgated thereunder. See, 40 C.F.R. Part 60. The defendant filed a motion for summary judgment on April 23, 1976, and the plaintiff filed a motion for summary judgment, as to the defendant's liability, on July 30, 1976. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1345 and 42 U.S.C. § 1857c-8(b)(3). FINDINGS OF FACT The facts of this case are undisputed. In 1966 the City of Painesville hired the engineering consultant firm of Glaus, Pyle & Schomer (Glaus) for advice on the possibility of expanding the electrical generating capacity of the Painesville Municipal Electric Utility (Municipal Electric). See, Painesville Ordinance No. 27-66, plaintiff's Appendix A. In 1967 Painesville city council decided that expansion of Municipal Electric was both feasible and necessary and started a construction program to build an additional coal fed electrical generating unit. The completion of Municipal Electric's expansion project was tentatively expected to be in early or mid 1972. See, Document 11, Appendix B. On December 21, 1967 Painesville made its first purchase of equipment for the new generating unit; a used 25,000 kw turbo-generator at a cost of $118,000. See, Ordinance No. 46-67, Appendix A; Document No. 6, Appendix B. In November of 1969 Glaus submitted "specifications and proposals for pulverized coal fired steam generating *498 unit no. 5." See, Document 12, Appendix B. On December 1, 1969 Painesville city council authorized the city manager to advertise for bids for the new generating unit (Unit No. 5) based on Glaus' specifications. See, Resolution No. 60-69, Appendix A. On April 20, 1970, after receiving bids on Unit 5, a letter of intent to enter into a contract for the construction of a boiler was sent to Combustion Engineering Inc. See, Document 18, Appendix B. At this point the start of construction appeared imminent. However financing difficulties caused delays and with each delay the cost of Unit 5 increased. See, Document 22, Appendix B. In August of 1971 Painesville discussed with Glaus ways to decrease the cost of Unit 5. See, Document 27, Appendix B. On August 17, 1971 the Administrator of the United States Environmental Protection Agency (EPA) published in the Federal Register proposed standards for performance for new stationary sources. See, 36 Fed.Reg. 15704. On September 20, 1971 Painesville informed Glaus that their services would no longer be needed. See, Document 11, Appendix C. On November 29, 1971 the engineering firm of Campbell, Deboe, Giese & Weber (Campbell) was hired. See, Resolution No. 52-71, Appendix A. On December 23, 1971, the Standards of Performance for new source fossil-fuel fired steam generators became final. See, 36 F.R. 24877. Approximately one month later Campbell submitted a report on the proposed construction of Unit 5. In this report Campbell stated: "Existing new federal air pollution regulations and proposed State of Ohio air pollution regulations which are scheduled to go into effect in February of this year are such that it is questionable if the boiler equipment is appropriate in all respects if furnished as originally contemplated. The new regulations cover emissions of particular matter, sulphur dioxide and nitrous oxides." See, Document 13, p. 6, Appendix C. The report recommended a change in size of the boiler from 240,000 lbs. steam/hour (continuous rating) to 215,000 lbs. steam/hour (continuous rating). Painesville accepted the change in the boiler specifications, and on February 22, 1972 advertised for bids. See, Resolution 7-72, Appendix A. Bids were received and evaluated. One of the factors in the evaluation was whether the bids met the United States Environmental Protection Agency (EPA) and Ohio EPA regulations. Campbell noted that the bidders could only meet sulfur dioxide requirements by "fuel selection." See, Document 4, Exhibit C. On July 28, 1972 Painesville executed a contract with Babcock & Wilcox Company for the construction of the steam generating unit of Unit 5. See, Appendix D, Document 5. On May 17, 1973 the Ohio EPA found the City of Painesville was not required to meet Ohio's air quality standards contained in R.C. §§ 3704 et seq. because Unit 5 was not a new air contaminate source. The basis for this decision was that the contracts for purchase of the equipment for Unit 5 were made before the effective date of the Ohio Air Pollution Control Regulations, February 15, 1972. See, Defendant's Exhibit D. A consent and abatement order was later entered into by Painesville and Ohio EPA in which Painesville agreed to comply with Ohio particulate regulations and to burn coal containing less than 3.2% sulfur. See, Defendant's Exhibit B. On March 31, 1975, the EPA informed Painesville that it would not pursue enforcement of federal particulate emission standards because of the consent and abatement order, but the letter did not preclude EPA from enforcing sulfur dioxide emission standards. See, Document 3, Appendix D. On November 24, 1975 EPA issued notice that Painesville was in violation of 40 C.F.R. §§ 60.40 and 60.43 because it intended to burn coal with a 3% sulfur content which would cause in excess of 4.8 lbs. sulfur dioxide/million btu heat input to be emitted from Unit 5, a fossil-fuel fired steam generating unit with more than 250 million btu/hour heat input. See, Document 8, Appendix D. Under § 60.43 a *499 new stationary source may emit no more than 1.2 lbs. sulfur dioxide/million btu heat input. Painesville does not contest that Unit 5's emissions violate the standards set by 40 C.F.R. § 60.43 if they apply.[1] However, Painesville claims that 40 C.F.R. Part 60, Standards Of Performance For New Stationary Sources, does not apply because Unit 5 is not a new source as that term is used in 42 U.S.C. § 1857c-6(a)(2) and the regulations promulgated thereunder. CONCLUSIONS OF LAW The sole issue[2] for determination is whether Painesville's Unit 5 is a new source that is required to meet the regulations contained in 40 C.F.R. Part 60.[3] 42 U.S.C. § 1857c-6(a)(2) reads, "The term `new source' means any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source." Proposed regulations for new source emissions were issued August 17, 1971, see, 36 Fed.Reg. 15704, so that if, as of August 17, 1971, "construction" or "modification"[4] of Municipal Electric had been "commenced," Unit 5 would not be a new source and therefore sulphur dioxide emission standards promulgated under 42 U.S.C. § 1857c-6 do not apply. The words "construction," "modified," and "commenced" are not defined in § 1857c-6 but have been defined in 40 C.F.R. § 60.2(g)(h) and (i) respectively. While an interpretation of an act by the enforcing agency is not conclusive, it is entitled to "great deference," Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); see, e. g., Youakim v. Miller, 425 U.S. 231, 235-236, 96 S.Ct. 1399, 1402, 47 L.Ed.2d 701 (1976); Satty v. Nashville Gas Company, 522 F.2d 850, 854 (6th Cir. 1975). Further the interpretation by an administrative agency of its own regulations is controlling unless plainly erroneous. See, e. g., Udall v. Tallman, 380 U.S. 1, 17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Compton v. Tennessee Dept. of Public Welfare, 532 F.2d 561, 565 (6th Cir. 1976). In 40 C.F.R. § 60.2(g) "construction" is defined as the ". . . fabrication, erection or installation of an affected facility." An "affected facility" is defined in § 60.2(e) as meaning ". . . with reference to a stationary source, any apparatus to which a standard is applicable." (emphasis added). Standards are made applicable to fossil-fuel fired steam generators, like Unit 5, by § 60.40. A fossil-fuel fired steam generator is a boiler, see, 40 C.F.R. § 60.41(a). It follows, in this case, that the "affected facility" of Unit 5 is the boiler, because it is the apparatus to which the emission standards are applicable. Therefore *500 it is the date of the "commencement" of "construction" of the boiler which determines whether Unit 5 is or is not a new source. In 40 C.F.R. § 60.2(i) "commenced" is defined as meaning, ". . . with respect to the definition of `new source' in Section 111(a)(2) of the Act, that an owner or operator has undertaken a continuous program of construction or modification or that an owner or operator has entered into a contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction or modification." Using this definition EPA argues that the construction of the "affected facility," the boiler, commenced at one of two times: First, when actual construction at the building site was started for a particular type of boiler, so that modification of existing physical construction would be required if the boiler specifications were changed to accommodate anti-pollution control devices; or, second, that construction commenced at the time a contract for the purchase of a new boiler was signed, with the proviso that delivery be required within a reasonable time. The Court finds that EPA's interpretation of 40 C.F.R. § 60.2(i)[5] is fully supported by the language of that regulation.[6] *501 Applying the above definition to the facts of this case the Court finds that of August 17, 1971 "construction" of Unit 5 had not "commenced." No contract for the production of a boiler for Unit 5 had been entered into. Construction of Unit 5 had not progressed to the point that a change in its design would have required the facility already erected to be modified in order to insure that it could comply with the sulfur dioxide emission standards of 40 C.F.R. § 60.43. In fact the Court finds in the record no evidence that any purchase of equipment made prior to August, 1971 would have been incompatible with a complying operation of Unit 5.[7] As is evidenced by the change in the specifications of the boiler in January of 1972, Painesville could have modified its plans for Unit 5 at a time well after the proposed regulations for new stationary sources became final, without loss of the money previously spent on capital purchases.[8] The Court finds that Municipal Electric's Unit 5 is a new stationary source[9] subject to the emission standards established by 40 C.F.R. § 60.43. Further the Court finds that the burning of coal with the sulfur content of approximately 3.0% will cause the emissions of sulfur dioxide in excess of 1.2 lbs./million btu input heat. Summary judgment on liability is granted to the plaintiff, the United States of America. The parties are ordered to prepare plans with documentation, which would allow the operation of Unit 5 in compliance with 40 C.F.R. § 60.43 and at an economically acceptable level. IT IS SO ORDERED. NOTES [1] Painesville admitted, ". . . we do not believe that compliance with the SO2 emissions regulations is possible at this time. We are continuing to pursue the availability of low sulphur fuels and SO2 removal equipment, with an ultimate plan of installing such equipment when it is commercially proven and available." Letter from Joseph Pandy, Jr., Superintendent of Electrical Power to David Kee, Chief Air Section EPA Region V. Document 2, Appendix D; see also, Affidavit of Thomas Voltaggio, attached to motion for preliminary injunction. [2] Painesville claims that the doctrine of laches is applicable and that EPA is barred from bringing this action because EPA knew about the consent and abatement between Ohio EPA and the defendant, but raised no objection until November of 1975. The Court rejects this argument. EPA's March 31, 1975 letter informed Painesville that EPA would not enforce federal standards for particulate emissions, at that time. No mention was made of sulfur dioxide standards. Painesville, from the record before this Court, had no reason to believe the decision not to enforce particulate emission standards meant that all other federal emission standards would also not be enforced. [3] The standards set by 40 C.F.R. § 60.43 have not been attacked by the defendant. 40 C.F.R. § 60.43 had been found to be reasonably achievable, in terms of cost and available technology. See, Essex Chemical Corporation v. Ruckelshaus, 158 U.S.App.D.C. 360, 486 F.2d 427, 440 (1973). [4] The defendant does not argue that the construction of Unit 5 was a "modification" or was the reconstruction of an existing facility. See, 40 C.F.R. § 60.2(h) and § 60.15. [5] Painesville argues that it was engaged in a continuous program of construction, beginning in 1967 with the purchase of the used turbogenerator, and that it therefore "commenced" construction well before August 17, 1971 and need not comply with 40 C.F.R. § 60.43. However EPA has interpreted its own regulations as focusing on when construction of the boiler, as the affected apparatus, began. This interpretation is not clearly erroneous, but is a reasonable interpretation of the language of 40 C.F.R. §§ 60 et seq. [6] The definition by the EPA of the term new stationary source annunciated in 40 C.F.R. § 60.2(d), (e), (g), (h) and (i) is consistent with what appears to have been Congress' intent in enacting 42 U.S.C. § 1857c-6. The rationale behind § 1857c-6 was Congress' desire that the best available emission control technology be incorporated into the construction of a facility which posed a threat of being a new air pollution source. This would prevent further environmental decay over the short run, while decreasing air pollution from current levels over the long run. Further, the economic impact would be spread over many years, and would not be as drastic as requiring existing facilities to immediately incorporate the best available anti-pollution technology. As the Senate Conference Report stated: "The provisions for new source performance standards are designed to insure that new stationary sources are designed, built, equipped, operated, and maintained so as to reduce emissions to a minimum. The performance standards should be met through application of the latest available technology or through other means of preventing or controlling air pollution. The maximum use of available means of preventing and controlling air pollution is essential to the elimination of new pollution problems while cleaning up existing sources. "As used in this section, the term `available control technology' is intended to mean that the Secretary should examine the degree of emission control that has been or can be achieved through the application of technology which is available or normally can be made available. This does not mean that the technology must be in actual, routine use somewhere. It does mean that the technology must be available at a cost and at a time which the Secretary determines to be reasonable. The implicit consideration of economic factors in determining whether technology is `available' should not affect the usefulness of this section. The overriding purpose of this section would be to prevent new air pollution problems, and toward that end, maximum feasible control of new sources at the time of their construction is seen by the committee as the most effective and, in the long run, the least expensive approach." See, Senate Report on S. 4358. In testimony before a house subcommittee on the administration's clean air bill, which had a section similar to 1857c-6, H.E.W. Secretary, Robert H. Finch, stated, "In general, existing stationary sources of air pollution are so numerous and diverse that the problems they pose can most efficiently be attacked by State and local agencies. Even with air quality standards being set nationally, as proposed in the Administration bill, the steps need to deal with existing stationary sources would necessarily vary from one State to another and, within States, from one area to another. "In the years ahead, however, many potentially significant new stationary sources of air pollution will come into being as a result of the Nation's growing demands for electric power, manufactured goods, and other necessities and amenities of modern life. Large stationary sources, such as electric generating plants, iron and steel mills, and petroleum refineries frequently have adverse effects not only on public health and welfare in their own communities but also on air quality over broad geographic areas. This problem is one that demands national attention. If we are ever to begin preventing air pollution, instead of just attacking it after the fact, then we must at least insure that major new stationary sources, wherever they are located are designed and equipped to reduce emissions to the minimum level consistent with available technology." Hearings before the Subcommittee on Public Health and Welfare of the Committee on Interstate and Foreign Commerce 91-44, p. 288. Finally, Senator Cooper addressed the Senate on § 1857c-6, stated: "The concept is that whenever we can afford or require new construction, we should expect to pay the cost of using the best available technology to prevent pollution." See, Legislative History of the 1970 Clean Air Act, p. 260 (Government Printing Office, Jan. 1974). The Court concludes that the EPA's definition that a new stationary source is one in which the boiler has neither been made nor contracted for, balances the interests in pollution control and economics along the lines required by § 1857c-6. [7] The defendants were on notice of the requirements of 40 C.F.R. § 60.43. See, Document 4, Exhibit C. [8] EPA's interpretation of 42 U.S.C. § 1857c-6(a)(2) limits the application of new stationary source emission standards to those projects in which construction has not progressed to the point that modifications of already completed physical structures would be necessary to meet those standards. But if the only work made fruitless by the need to meet anti-pollution standards is in the design or planning of a new source, then operators are required to modify those designs or operating plans to meet new stationary source emission standards. This interpretation is given credence by Congress' use of the word "construction" in § 1856c-6(a)(2) rather than the words "planning" or "designing." [9] Ohio EPA found that Unit 5 was not a new stationary source under Ohio law. See, Appendix E, Document 1. Painesville argues that EPA is bound to follow this decision. This argument ignores the fact that Ohio EPA was interpreting a different statute than EPA. Further, it is clear that Congress intended that federal enforcement of federal air pollution standards not be controlled by the states. See, Train v. Natural Resources Defense Council Inc., 421 U.S. 60, 63-64, 95 S.Ct. 1470, 1474, 43 L.Ed.2d 731 (1975). In introducing the Conference Report to the House of Representatives Congressman Staggers stated, "The enforcement of air pollution regulations is partly the responsibility of the States and partly that of the Federal Government. The legislation provides that the Federal Government shall have primary responsibility for the enforcement of performance standards for new stationary sources and hazardous emissions stationary sources." See, Legislative History of the 1970 Clean Air Act, p. 112 (Government Printing Office, Jan. 1974).

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012). STATE OF MINNESOTA IN COURT OF APPEALS A13-1432 Kathi Ann Hanson, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent. Filed August 4, 2014 Affirmed Johnson, Judge Hennepin County District Court File No. 27-CV-13-2560 Peter J. Timmons, Minneapolis, Minnesota (for appellant) Lori Swanson, Attorney General, Anne Fuchs, Assistant Attorney General, St. Paul, Minnesota (for respondent) Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and Chutich, Judge. UNPUBLISHED OPINION JOHNSON, Judge The commissioner of public safety revoked Kathi Ann Hanson’s driver’s license after she was arrested for driving while impaired following an accident in which a car crashed into a tree. Hanson petitioned to rescind the revocation, claiming that she was not the driver of the vehicle. The district court sustained the revocation. We affirm. FACTS On the evening of January 12, 2013, William Mord was in his garage in the city of Maple Grove when he heard the sound of squealing tires followed by a loud crash. He walked outside and saw that a car had crashed into a tree in the front yard of his residence. He approached the car and saw Hanson in the driver’s seat and a male, Daniel Haskett, in the front passenger’s seat. Officer Mark Ringgenberg from the Maple Grove Police Department was dispatched to the scene of the crash. When he arrived, he saw Haskett standing next to the car. Haskett told Officer Ringgenberg that he was driving the car at the time of the accident, and Officer Ringgenberg confirmed that Haskett was the registered owner of the car. Officer Ringgenberg also spoke with Hanson, who denied that she was driving the car that evening. But Mord told Officer Ringgenberg that he believed that Hanson was the driver based on his observations soon after the crash. At the implied-consent hearing, there was conflicting testimony about Officer Ringgenberg’s further investigation. The officer testified that when he confronted Haskett with Mord’s statement, Haskett said that Hanson actually was driving at the time of the crash and admitted that he initially had lied to protect Hanson. Haskett testified that he was the driver of the car at the time of the crash and that he did not tell Officer Ringgenberg that Hanson was the driver. Haskett did not deny that Hanson was in the driver’s seat when Mord came upon the scene, but he explained that he had asked her to 2 switch seats with him so that he could retrieve the telephone number of a towing company from the glove compartment. Hanson failed field sobriety tests. Officer Ringgenberg arrested her for driving while impaired and took her to the police station, where he read her the implied-consent advisory. Hanson agreed to take a breath test, which registered an alcohol concentration that was greater than .08. The commissioner of public safety revoked her driver’s license. In February 2013, Hanson petitioned for judicial review of the commissioner’s revocation of her driver’s license. See Minn. Stat. § 169A.53, subd. 2 (2012). She challenged the revocation on two grounds: that she was not the driver of the car at the time of the crash and that her consent to the breath test was invalid. In April 2013, the district court held an implied-consent hearing at which Officer Ringgenberg, Mord, and Haskett testified. In May 2013, the district court issued an order denying Hanson’s petition and sustaining the revocation. The district court concluded that Hanson was the driver of the car at the time of the crash and that her consent to the breath test was valid. Hanson appeals. DECISION Hanson argues that the district court erred by sustaining the revocation of her driver’s license because the commissioner failed to prove that she was driving the car at the time of the crash. The issue before the district court was: “Did the peace officer have probable cause to believe [Hanson] was driving, operating, or in physical control of a motor vehicle or 3 commercial motor vehicle in violation of section 169A.20 (driving while impaired)?” See Minn. Stat. § 169A.53, subd. 3(b)(1); see also Hayes v. Commissioner of Pub. Safety, 773 N.W.2d 134, 137 (Minn. App. 2009). Accordingly, the commissioner was not required to prove that Hanson actually was driving the vehicle; the commissioner was required to prove only that there was probable cause to believe that Hanson was driving the vehicle and probable cause to believe that she was impaired. See Snyder v. Commissioner of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993). The commissioner has the burden to prove those facts (that the officer had probable cause to believe that Hanson was driving and probable cause to believe that she was impaired) “by a fair preponderance of the evidence.” Roberts v. Commissioner of Pub. Safety, 371 N.W.2d 605, 607 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985). The district court’s resolution of factual issues may depend on its “opportunity to judge the credibility of the witnesses,” id., and this court gives “[d]ue regard” to the district court’s credibility determinations, Snyder v. Commissioner of Pub. Safety, 744 N.W.2d 19, 22 (Minn. App. 2008). A district court also may rely on circumstantial evidence. See Hunt v. Commissioner of Pub. Safety, 356 N.W.2d 801, 803 (Minn. App. 1984). A district court’s finding of fact is not erroneous simply because the evidence also could support a different conclusion. Engebretson v. Commissioner of Pub. Safety, 395 N.W.2d 98, 99-100 (Minn. App. 1986). A district court’s finding of fact is “entitled to the same weight as a jury verdict and cannot be reversed if the court could reasonably have made the finding based upon the evidence adduced at trial.” Roberts, 371 N.W.2d at 607. 4  In this case, the district court found both that Hanson “was actually driving at the time of the accident” and that Officer Ringgenberg “had probable cause to believe [Hanson] was driving.” The district court found credible Officer Ringgenberg’s testimony that Haskett told him that Hanson was the driver at the time of the crash. We must defer to the district court’s credibility determination. See Snyder, 744 N.W.2d at 22. Officer Ringgenberg’s testimony is direct evidence that Hanson was the driver of the vehicle. Mord’s testimony that he saw Hanson in the driver’s seat shortly after the crash is circumstantial evidence that Hanson was the driver of the vehicle. This evidence supports the district court’s findings that Hanson was driving the car at the time of the crash and that Officer Ringgenberg had probable cause to believe that was so. See Roberts, 371 N.W.2d at 607. Hanson contends that the evidence is insufficient because it shows only that she was in the driver’s seat and because no one actually saw her driving the car. Her contention ignores Officer Ringgenberg’s testimony that Haskett stated that Hanson was driving. Although Haskett testified to the contrary at the hearing, the district court rejected his testimony and his explanation for why Hanson was in the driver’s seat. This court has no reason to overturn the district court’s credibility determination. See Engebretson, 395 N.W.2d at 99-100. In addition, Hanson’s contention ignores Mord’s testimony, on which the district court also relied. See Hunt, 356 N.W.2d at 803. We conclude that the district court did not err by finding that Hanson was the driver of the car at the time of the crash and that Officer Ringgenberg had probable cause to believe that Hanson was driving. 5  In her appellate brief, Hanson also argued that the district court erred by finding that she voluntarily consented to the breath test. At oral argument, however, Hanson’s attorney conceded the issue in light of State v. Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). Thus, we need not address the argument. In sum, the district court did not err by denying Hanson’s petition and sustaining the revocation of her driver’s license. Affirmed. 6 

541 U.S. 968 LEINENBACH, AKA NELSONv.UNITED STATES. No. 03-9173. Supreme Court of United States. March 29, 2004. 1 C. A. 3d Cir. Certiorari denied.

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 10-578V Filed: April 14, 2017 ************************* MORGAN A. JOHNSON, * * Petitioners, * Special Master Sanders * v. * * SECRETARY OF HEALTH AND * Attorneys’ Fees and Costs; HUMAN SERVICES * Fees for Travel; Expert Costs. * Respondent. * ************************* Franklin John Caldwell, Jr., Maglio, Christopher & Toale, Sarasota, FL, for Petitioner. Lara Ann Englund, United States Department of Justice, Washington, DC, for Respondent. DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 On August 26, 2010, Morgan Johnson (“Petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program,2 42 U.S.C. §§ 300aa-10 to -34 (2012). Petitioner alleged that she suffered from Systemic Lupus Erythematosus (“SLE”) as a result of the administration of Human Papillomavirus (“HPV”) vaccinations on November 21, 2007; March 5, 2008; and June 3, 2008. Pet. 1, ECF No. 1. 1 This decision shall be posted on the website of the United States Court of Federal Claims, 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 (2012)). As provided by Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 (“the Vaccine Act” or “Act”). Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).  On August 18, 2016, Special Master Hamilton-Fieldman issued a Decision dismissing Petitioner’s claim. Decision 2, ECF No. 78. On March 10, 2017, Petitioner submitted a Motion for Attorneys’ Fees. Mot. Att’ys’ Fees, ECF No. 84. Respondent submitted his Response on March 20, 2017. Resp’t Resp., ECF No. 85. Petitioner filed her Reply on March 21, 2017. Pet’r’s Reply, ECF No. 86. After careful consideration, the undersigned grants Petitioner’s Motion for Attorneys’ Fees in part. I. PROCEDURAL HISTORY Special Master Hamilton-Fieldman issued an entitlement decision in this case after a two- part hearing, held on October 29, 2013 and December 17, 2013. Decision 2. In her Decision, Special Master Hamilton-Fieldman held that Petitioner failed to show that her injury was “caused-in-fact” by her HPV vaccinations. Id. at 7, 15. Under the test established by the Federal Circuit in Althen, petitioners must “set forth: ‘(1) a medical theory causally connecting the vaccination and the injury [(‘Althen Prong One’)]; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury [(‘Althen Prong Two’)]; and (3) a showing of a proximate temporal relationship between vaccination and injury [(‘Althen Prong Three’)].’” Id. at 7 (quoting Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005)). Special Master Hamilton-Fieldman found that Petitioner failed to meet all of Althen’s prongs, and she dismissed the petition accordingly. Id. at 12-15. In Petitioner’s subsequent Motion for Attorneys’ Fees, she requested $119,357.25 in fees and $36,261.09 in costs, totaling $155,618.34. Mot. Att’ys’ Fees 1-2. Petitioner’s counsel, Franklin John Caldwell, Jr., requested an hourly rate of $275 for work completed in calendar years 2009 and 2010. Pet’r’s Ex. 120 at 24, ECF No. 84-1. He then increased his hourly rate to $300 for his work from 2011 to 2015. Id. For 2016, Mr. Caldwell requested an hourly rate of $356, and in 2017, he requested an hourly rate of $367. Id. Three other attorneys at Mr. Caldwell’s firm also submitted hours related to their work in this case. Id. Anne C. Toale, an attorney with Mr. Caldwell’s firm, requested an hourly rate of $275 for .7 hours, and Diana L. Stadelnikas, another attorney, requested an hourly rate of $300 for .1 hours of work. Id. Danielle A. Strait, the third attorney, requested an hourly rate of $295 for her work from 2013 to 2016 for 28.5 hours of work with this case. Id. She increased her hourly rate request to $320 for 2017. Id. Mr. Caldwell also requested hourly rates of $75, $95, $135, and $145 for the work of his firm’s paralegals, respective to the paralegal’s experience. Id. Petitioner’s application included an invoice from her expert, Dr. Yehuda Shoenfeld, for $18,000. Pet’r’s Ex. 121 at 84, ECF No. 84-2. Additionally, Petitioner’s Motion included a statement averring that Petitioner did not incur any personal costs during the litigation of this case. Pet’r’s Ex. 122, ECF No. 84-3. Respondent’s response stated that neither the Vaccine Act nor the Rules of the Vaccine Program “contemplate any role for respondent in the resolution of a request by a petitioner for an award of attorneys’ fees and costs.” Resp’t Resp. 1. Consequently, Respondent urged for the undersigned to “exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3. Petitioner’s Reply claimed that Respondent’s position burdened the Court and prejudiced Petitioner. Pet’r’s Reply 2. Without specific objections from Respondent, Petitioner argued, the Court determines fee applications without allowing petitioners the opportunity to 2 respond to any “issues or misperceptions.” Id. Petitioner then argued that her requested rates are reasonable and that she met her burden establishing the reasonableness of her request. Id. at 3-5. This matter is now ripe for a decision. For the reasons articulated below, the undersigned awards Petitioner $116,233.25 for attorneys’ fees and costs in full, for a total award of $152,494.34. II. STANDARDS FOR ADJUDICATION When a petitioner in the Vaccine Program does not prevail on his or her claim, a special master may award attorneys’ fees and other costs if “the petition was brought in good faith and there was a reasonable basis for which the petition was brought.” § 15(e)(1); Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013). “Good faith” is a subjective standard. Hamrick v. Sec’y of Health & Human Servs., No. 99-683V, 2007 WL 479152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). Reasonable basis, on the other hand, can be met when a petition is filed with evidence. See Chuisano v. Sec’y of Health & Human Servs., No. 07-452V, 2013 WL 6234660, at *8-10 (Fed. Cl. Spec. Mstr. Oct. 25, 2013), mot. for rev. denied, 116 Fed. Cl. 276 (2014). Respondent does not contest that this claim was filed in good faith and with a reasonable basis. The undersigned finds no evidence to indicate that this petition was filed in bad faith, and Petitioner demonstrated a reasonable basis for her petition by submitting an expert report in support of her claim. Therefore, Petitioner satisfied the requirements of § 15(e)(1), and the undersigned finds that it is appropriate to award reasonable attorneys’ fees and costs in the current matter. The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . by ‘multiplying the numbers of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348. It is “well within the special master’s discretion” to determine the reasonableness of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993); see also Hines v. Sec’y of Health & Human Servs., 22 Cl Ct. 750, 753 (1991) (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys’ fees and costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Attorneys may be awarded fees for travel if they provide adequate documentation that they performed legal work during that travel. Gruber v. Sec’y of Health & Human Servs., 91 Fed. Cl. 773, 791 (2010). The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). For example, an attorney that has been practicing for twenty or more years has an appropriate hourly 3 rate between $350 and $425. Id. An attorney with eight to ten years of experience, on the other hand, has a reasonable hourly rate between $275 and $350. Id. III. DISCUSSION A. Reasonable Hourly Rate The first step of the lodestar approach involves determining an estimate by calculating “the numbers of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera, 515 F.3d at 1347-48 (quotation omitted). Petitioner’s counsel, Mr. Caldwell, has been awarded a forum hourly rate of $356 for work performed in 2016 and $300 for work in the years prior. Randall v. Sec’y of Health & Human Servs., No. 13-337V, 2016 WL 8118527, at *2 (Fed. Cl. Spec. Mstr. Dec. 21, 2016) (citing Foster v. Sec’y of Health & Human Servs., No. 14-309V, 2016 WL 7233943 (Fed. Cl. Spec. Mstr. Nov. 15, 2016)). Mr. Caldwell also requests $367 per hour for his work performed in 2017. Mot. Att’ys’ Fees 24. This is a 3% increase from his previous year’s request of $356. Such an increase is acceptable under the customary 3.7% growth rate for attorneys’ fees found in McCullough v. Secretary of Health and Human Services, No. 09-293V, 2015 WL 5634323, at *16 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Thus, the undersigned finds Mr. Caldwell’s requested attorney hourly rates as reasonable. The undersigned also finds the hourly rates requested for the work of the attorneys Anne Toale and Diana Stadelnikas reasonable. However, the undersigned must reduce the hourly rate requested by Danielle Strait for her work performed in 2017. For that year, she requested an hourly rate of $320, an 8.4% increase from her previous requested rate of $295. Mot. Att’ys’ Fees 24. Therefore, the undersigned will award Ms. Strait the hourly rate of $306 for her work performed in 2017. This amount is Ms. Strait’s 2016 request, $295 per hour, with a 3.7% increase. This reduction amounts to $4.00. In McCulloch, Special Master Gowen found that it was reasonable to award $135 per hour to each paralegal who was “[a] well-qualified, carefully chosen college graduat[e]” with “several years at the firm doing exclusively vaccine work.” 2015 WL 5634323 at *21. I find the requested amounts for paralegals reasonable, with one exception. Petitioner requested $145 for the work of Stacie J. Blanchard. Mot. Att’ys’ Fees 24. Although Petitioner noted whether other paralegals are certified or registered, Petitioner offered no other information as to Ms. Blanchard’s qualifications. Therefore, I will reduce Ms. Blanchard’s hourly rate to $95 per hour, the same rate requested for paralegals not noted as certified or registered. This reduction amounts to $30. B. Hours Expended The second step in Avera is for the Court to make an upward or downward modification based upon specific findings. 515 F.3d at 1348. In a review of Mr. Caldwell’s billing records, the undersigned did not find any duplicative billing requests. However, Mr. Caldwell requested his full hourly rate for his travel on August 7 and 11, 2012; October 27, 28, 29, and 30, 2013; and December 14 and 18, 2013. Pet’r’s Ex. 120 at 7, 15, 16, 18, 19. Following Gruber, the undersigned will grant a full hourly rate for travel where an attorney provides documentation that 4 she or he performed work while traveling. 91 Fed. Cl. at 791; see also Amani v. Sec’y of Health & Human Servs., No. 14-150V, 2017 WL 772536, at *6 (Fed. Cl. Spec. Mstr. Jan. 31, 2017). Here, Mr. Caldwell requests $300 per hour for 2.3 hours of travel in August 2012; $300 per hour for 12.1 hours in October 2013; and $300 per hour for 6.7 hours in December 2013. Pet’r’s Ex. 120 at 7, 15, 16, 18, 19. I will grant Mr. Caldwell half of these requested fees for his travel to Los Angeles, CA on August 7, 2012. This record only notes “usable in flight time not billed,” which is insufficient for a full award of attorneys’ fees. Id. at 7. Although Mr. Caldwell documented what he did not bill for, he did not provide specific billing records for these dates sufficient to receive a full hourly rate award. Likewise, his entry for August 11, 2012 only notes “ground travel from Los Angeles to Upland for client visit (and return).” Id. The undersigned will grant two-thirds of this request, as ground travel involves opportunity costs not found in air travel. See Collins v. Sec’y of Health & Human Servs., No. 15-661V, 2017 WL 1315687, at *3 (Fed. Cl. Spec. Mstr. Mar. 15, 2017). The remaining travel entries mirror that of August 7, 2012, namely they do not involve ground travel and state “work usable airport wait and in flight time not billed.” Pet’r’s Ex. 120 at 15, 16, 18, 19 . The undersigned will therefore grant a half award of these requests. The resulting total reduction of Mr. Caldwell’s requested rate for travel is $3,090. C. Costs Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992). Petitioner requests $36,261.09 in attorneys’ costs. Mot. Att’ys’ Fees 1. These costs are associated with, among others, legal research; travel to and from the District of Columbia; postage; photocopying and faxing; and the expert costs of Dr. Yehuda Shoenfeld. See generally Pet’r’s Ex. 84-2. Petitioner’s request for costs includes an invoice from Dr. Shoenfeld for $18,000. Id. at 84-85. This invoice represents Dr. Shoenfeld’s travel and work surrounding the December 2013 expert hearing. Id. For his services, Dr. Shoenfeld requested an hourly rate of $500, with a reduced rate of $250 for his travel between Tel Aviv and Washington, DC. Id. In the past, the undersigned has found an hourly rate of $500 to be reasonable for Dr. Shoenfeld’s work. Bello v. Sec’y of Health & Human Servs., No. 13-349V, 2017 WL 785692, at *5 (Fed. Cl. Spec. Mstr. Jan. 24, 2017). The undersigned sees no reason to adjust Dr. Shoenfeld’s request and, after finding Petitioner’s other costs to be reasonable, will award Petitioner’s costs in full. IV. CONCLUSION In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned finds that attorneys’ fees will be reduced to $116,233.25 and costs granted in full. Accordingly, the total of $152,494.343 to be issued in the form of a check payable jointly to Petitioner and 3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.1991). 5 Petitioner’s counsel, F. John Caldwell, Jr., of Maglio Christopher & Toale, PA, for attorneys’ fees and costs. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of the above decision.4 IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 4 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice renouncing the right to seek review. 6 

2016 IL 119704 IN THE SUPREME COURT OF THE STATE OF ILLINOIS (Docket No. 119704) MOLINE SCHOOL DISTRICT NO. 40 BOARD OF EDUCATION, Appellee, v. PATRICK QUINN, Governor, State of Illinois, et al. (Elliott Aviation, Inc., Appellant). Opinion filed June 16, 2016. JUSTICE KARMEIER delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, and Burke concurred in the judgment and opinion. Justice Theis dissented, with opinion. OPINION ¶1 At issue on this appeal is the constitutionality of Public Act 97-1161 (eff. June 1, 2013), which amended the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2014)) to create an exemption from property taxes on leasehold interests and improvements on real estate owned by the Metropolitan Airport Authority of Rock Island County and used by a so-called fixed base operator (FBO) to provide aeronautical services to the public. When the law was enacted, there was only one FBO leasing land from the Metropolitan Airport Authority, Elliott Aviation, Inc. The new law was specifically designed to provide a financial incentive for that  particular company to expand its operations at the Metropolitan Airport Authority’s facilities rather than its operations in Des Moines, Iowa, which were not subject to property tax. ¶2 Moline School District No. 40 Board of Education (the School District), which faced losing more than $150,000 per year in tax revenue as a result of the exemption for Elliott Aviation, brought an action for declaratory and injunctive relief in the circuit court of Rock Island County to block implementation of the new law on the grounds that it violates various provisions of the Illinois Constitution, including the “special legislation” clause of article IV, section 13 (Ill. Const. 1970, art. IV, § 13). On cross-motions for summary judgment, the circuit court rejected the School District’s challenge to the law and concluded that it is constitutional. The appellate court reversed and remanded with directions, holding that the law contravenes the article IV, section 13 prohibition against special legislation. 2015 IL App (3d) 140535. Elliott Aviation appealed to our court as a matter of right. Ill. S. Ct. R. 317 (eff. July 1, 2006). For the reasons that follow, we affirm the appellate court’s judgment. ¶3 BACKGROUND ¶4 Elliott Aviation is what is known in the aviation industry as a fixed based operator, or FBO. FBOs are commercial businesses allowed to operate at airports for the purpose of supplying support services to general aviation aircraft, i.e., those not operated by commercial airlines, large charters, or the military, and to the pilots and passengers of such aircraft. Typical services provided by FBOs include fueling, hangaring, aircraft maintenance and repair, aircraft rental, restrooms, rest areas, and facilities for conferences and flight planning. Numerous FBOs operate in the State of Illinois, which is home to 19 other airport authorities in addition to the Metropolitan Airport Authority of Rock Island County (the MAA). ¶5 Elliott Aviation was founded in the 1930s and has three FBO operations in the Midwest: Moline, Illinois; Des Moines, Iowa; and Minneapolis, Minnesota. The Moline location, which has 229 employees, is located on the grounds of the Quad City International Airport (Quad City). Elliott Aviation does not own either the land or the buildings where it conducts its business there, although it paid for the buildings to be constructed. Both the real estate and the improvements are owned by the MAA, which leases them to the company. Although the MAA itself is not -2-  required to pay property tax, Illinois has assessed property taxes on airport property leased to FBOs, and Elliott Aviation has been required to pay property tax on the FBO it operates at the Quad City airport in Moline. ¶6 Several years ago, Elliott Aviation made known its interest in expanding its operations, either in Moline or at its Des Moines, Iowa, location. Cost was a factor, and one difference between these two possible options was that the company’s leasehold interests in its Iowa location were not subject to real estate taxes. ¶7 An economic impact analysis conducted by the Quad Cities Chamber of Commerce indicated that expansion at the Moline facility could be expected to create numerous new high-paying jobs and bring millions of dollars in revenue into Rock Island County. To provide an incentive for Elliott Aviation to pursue the Moline option, the Chamber of Commerce asked a local state legislator to support legislation that would exempt the company’s leasehold interests at the Quad City airport from property tax. The result was House Bill 4110. That legislation was ultimately enacted into law as Public Act 97-1161, the legislation challenged in this case. It amended the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2014)) to provide, in pertinent part, that “[i]f property of the Metropolitan Airport Authority of Rock Island County is leased to a fixed base operator that provides aeronautical services to the public, then those leasehold interests and any improvements thereon are exempt [from taxation].” 35 ILCS 200/15-160(c) (West 2014). ¶8 Legislative debates on House Bill 4110 were clear and unambiguous as to the law’s purpose: to provide property tax relief for Elliott Aviation so that it would have an incentive to expand its operations at the Moline location, rather than at a location in Iowa or some other state, and thereby improve the local economy. See 97th Ill. Gen. Assem., House Proceedings, Mar. 29, 2012, at 135-42. Equally clear was that the General Assembly did not want to extend the same property tax relief to any other operator at any other Illinois airport. An effort was made to amend the legislation to extend the same favorable tax treatment to FBO leases at the Lansing Municipal Airport in Cook County, but that effort was rebuffed. When House Bill 4110 was signed into law by the Governor as Public Act 97-1161, it benefited a solitary company, Elliott Aviation, at a single airport, Quad City in Moline. ¶9 Prior to enactment of Public Act 97-1161, Elliott Aviation’s annual property tax bill included more than $150,000 per year for Moline School District No. 40. With passage of the new law and creation of the new exemption, the School District -3-  faced losing all of that tax revenue. Because there was no sunset provision in the law, the loss would be recurrent and permanent. ¶ 10 The School District, which felt that it could ill afford the loss in revenue, responded by filing an action in the circuit court of Rock Island County to have the law declared unconstitutional and to enjoin its enforcement. Named as defendants were numerous governmental entities and officials, including the Governor, the Director of Revenue, and the local tax authorities. ¶ 11 The School District’s complaint contained four counts. Count I alleged that Public Act 97-1161 violates the special legislation clause of the Illinois Constitution, which prohibits the General Assembly from passing a “special or local law when a general law is or can be made applicable.” Ill. Const. 1970, art. IV, § 13. Count II sought to have the law invalidated on the grounds that it violates article I, section 2, of the Illinois Constitution, which provides that “[n]o person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” Ill. Const. 1970, art. I, § 2. Count III asserted that the statute is fatally infirm because it offends the requirement in our State’s constitution that “[e]xcept as otherwise provided in this Section, taxes upon real property shall be levied uniformly by valuation ascertained as the General Assembly shall provide by law.” Ill. Const. 1970, art. IX, § 4(a). Finally, count IV alleged that the statute was invalid and could not be enforced because it was incompatible with the requirement in article IX, section 6, of the Illinois Constitution of 1970 that “[t]he General Assembly by law may exempt from taxation only the property of the State, units of local government and school districts and property used exclusively for agricultural and horticultural societies, and for school, religious, cemetery and charitable purposes.” Ill. Const. 1970, art. IX, § 6. ¶ 12 The law was set to take effect on June 1, 2013. Before that date arrived, however, the School District sought and obtained a preliminary injunction to block the statute’s implementation pending final resolution of the case. Shortly thereafter, the School District filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2014)). At this point, Elliott Aviation, which had not yet been named a party, was granted leave to intervene. It objected to the School District’s summary judgment motion and filed its own cross-motion for summary judgment. Following a hearing, the circuit court entered a detailed order which rejected each of the School District’s constitutional -4-  challenges to Public Act 97-1161, found the statute to be constitutional, denied the School District’s motion for summary judgment, granted Elliott Aviation’s cross-motion for summary judgment, and dissolved the preliminary injunction it had previously entered. ¶ 13 After unsuccessfully seeking reconsideration by the circuit court, the School District appealed. In a published opinion, the appellate court unanimously concluded that Public Act 97-1161 violated the article IV, section 13 prohibition against special legislation (Ill. Const. 1970, art. IV, § 13). It therefore reversed the circuit court’s judgment and remanded with instructions for the circuit to enter summary judgment in favor of the School District, to deny Elliott Aviation’s motion for summary judgment, and to address the School District’s request for permanent injunctive relief. Because it found the statute to be unconstitutional under article IV, section 13 (Ill. Const. 1970, art. IV, § 13), the appellate court had no need to reach and did not address whether the statute was also fatally infirm under the other constitutional provisions invoked by the School District. 2015 IL App (3d) 140535, ¶¶ 30-31. The matter is now before us for review on Elliott Aviation’s appeal as a matter of right pursuant to Illinois Supreme Court Rule 317 (eff. July 1, 2006). ¶ 14 ANALYSIS ¶ 15 The sole issue on this appeal is whether the appellate court erred when it concluded that Public Act 97-1161 is unconstitutional. The constitutionality of a statute is a question of law that we review de novo. Empress Casino Joliet Corp. v. Giannoulias, 231 Ill. 2d 62, 69 (2008). De novo review is also appropriate here because the case was decided through summary judgment. Pielet v. Pielet, 2012 IL 112064, ¶ 30. ¶ 16 In undertaking our review, we begin with the familiar principle that statutes carry a strong presumption of constitutionality. A party claiming that a statute is unconstitutional bears the burden of establishing the statute’s constitutional infirmity. This court has a duty to uphold the constitutionality of a statute if it is reasonably possible to do so. Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 148-49 (2006). -5- ¶ 17 As noted earlier, the appellate court invalidated Public Act 97-1161 on the grounds that it violated article IV, section 13, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, § 13), popularly known as the special legislation clause. That provision states: “The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.” Ill. Const. 1970, art. IV, § 13. ¶ 18 The special legislation clause prohibits the General Assembly from conferring a special benefit or privilege upon one person or group of persons and excluding others that are similarly situated. Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d 221, 235 (2005). Its purpose, as we have consistently held, is to prevent arbitrary legislative classifications that discriminate in favor of a select group without a sound, reasonable basis. Best v. Taylor Machine Works, 179 Ill. 2d 367, 391 (1997). ¶ 19 The clause has deep roots in our constitutional jurisprudence. It originally appeared in the nineteenth century in response to the General Assembly’s past abuse of the legislative process through the grant of special charters for various economic interests. It is predicated in part on the conviction that governments should establish and enforce general principles applicable to all their citizens and not enrich particular classes of individuals at the expense of others, that “one class or interest should not flourish by the aid of government, whilst another is oppressed with all the burdens.” Id. at 391-92 (quoting I Debates and Proceedings of the Constitutional Convention of the State of Illinois 578 (statements of Delegate Anderson)). ¶ 20 The first version of the special legislation clause was set forth in section 22 of article IV of the 1870 Constitution (Ill. Const. 1870, art. IV, § 22). That version contained an extensive list of specific categories in which the General Assembly was prohibited from passing a local or special law. While section 22 was in effect, the General Assembly was generally the final authority for determining whether a general law could be made applicable. When the 1970 Constitution was adopted, that list was eliminated. The substantive principles applicable to the prohibition against special legislation remain unchanged, but now, the issue of “whether a general law is or can be made applicable is specifically provided to be a matter for -6-  judicial determination.” In re Belmont Fire Protection District, 111 Ill. 2d 373, 378 (1986). ¶ 21 What constitutes a general law and what constitutes a special law was recently revisited by this court in Board of Education of Peoria School District No. 150 v. Peoria Federation of Support Staff, Security/Policeman’s Benevolent & Protective Ass’n Unit No. 114, 2013 IL 114853. Referencing past precedent, we noted in that case that laws are considered “general” “when alike in their operation upon all persons in like situation,” and that they are “special” if they impose a particular burden or confer a special right, privilege, or immunity upon only a portion of the people of our State. (Internal quotation marks omitted.) Id. ¶ 48. ¶ 22 Article IV, section 13, of the Illinois Constitution (Ill. Const. 1970, art. IV, § 13) does not impose a blanket prohibition on all special laws. By its terms, it only prohibits the passage of a “special or local law when a general law is or can be made applicable.” (Internal quotation marks omitted.) Board of Education of Peoria School District No. 150, 2013 IL 114853, ¶ 55; Elementary School District 159 v. Schiller, 221 Ill. 2d at 154. Accordingly, a law does not automatically run afoul of the prohibition against special legislation merely because it affects only one class of entities and not another. Rather, the statute must confer on a person, entity, or class of persons or entities a special benefit or exclusive privilege that is denied to others who are similarly situated. Big Sky Excavating, Inc., 217 Ill. 2d at 236. If an entity is uniquely situated, the special legislation clause will not bar the legislature from enacting a law tailored specifically to address the conditions of that particular entity. Board of Education of Peoria School District No. 150, 2013 IL 114853, ¶ 55. ¶ 23 In assessing whether a statute violates the prohibition against special legislation, courts apply a two-part analysis. First, they must determine whether the statutory classification at issue discriminates in favor of a select group. If it does, then they must go on to consider whether the classification is arbitrary. Big Sky Excavating, Inc., 217 Ill. 2d at 235. ¶ 24 A special legislation challenge is generally judged under the same standards applicable to an equal protection challenge. If a law does not affect fundamental rights or make a suspect classification, and there is no contention that Public Act 97-1161 does, the appropriate measure of its constitutionality is the rational basis test, which asks whether the statutory classification is rationally related to a -7-  legitimate state interest. Crusius v. Illinois Gaming Board, 216 Ill. 2d 315, 325 (2005). “The judgments made by the legislature in crafting a statute are not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Big Sky Excavating, Inc., 217 Ill. 2d at 240. “If any set of facts can be reasonably conceived that justify distinguishing the class to which the statute applies from the class to which the statute is inapplicable, then the General Assembly may constitutionally classify persons and objects for the purpose of legislative regulation or control, and may enact laws applicable only to those persons or objects.” Id. at 238. ¶ 25 Public Act 97-1161, the law challenged in this case, clearly discriminates in favor of a select group, as the appellate court correctly held. 2015 IL App (3d) 140535, ¶ 24. By its terms, the law provides property tax relief only for FBOs providing aeronautical services to the public at the MAA’s Quad City International Airport, and there is only one of those, Elliott Aviation. No other FBO providing aeronautical services to the public at any other Illinois airport was given similar favorable treatment, and under the law, no other FBO providing aeronautical services to the public at any other Illinois airport has the opportunity to ever obtain similar tax treatment. ¶ 26 The real question in this case centers on the second step of the special legislation inquiry: whether the classification granting preferential tax treatment to FBOs leasing property from the MAA is arbitrary, i.e., whether it is rationally related to a legitimate state interest. The appellate court concluded that it is not. Id. ¶¶ 25-29. We agree. ¶ 27 The justification for the tax exemption conferred by Public Act 97-1161 was clear and specific: it was to induce Elliott Aviation to undertake its contemplated expansion in Illinois rather than in Iowa in the hope that the expansion would create additional jobs and thereby boost the local economy in Rock Island County. Encouraging Illinois businesses to expand in Illinois and facilitating economic growth of our communities are unquestionably legitimate functions of state government. As the appellate court correctly pointed out (id. ¶ 26), however, there was no requirement in the law that Elliott Aviation actually use the tax savings to expand in Illinois. If the statute were allowed to take effect, the company would be entirely free to devote the money it saved on taxes to any purpose it chose, including expanding in Iowa. That is good news for Elliott Aviation. It is not necessarily such good news for anyone else. If the company elected not to reinvest -8-  in Rock Island County, the residents of the county would not merely fail to realize the hoped-for economic benefits, they could actually be harmed. That is so because the School District would either have to curtail its operations to absorb the lost tax revenue or else the other taxpayers in the county would have to pay more to make up for the loss. ¶ 28 Of course, the fact that a law might be ill-conceived does not, in itself, create a constitutional problem for us to fix, for whether a statute is wise and whether it is the best means to achieve the desired result are matters for the legislature, not the courts. Crusius v. Illinois Gaming Board, 216 Ill. 2d at 332. The problem here, however, goes beyond that. In terms of our constitution’s prohibition against special legislation, the real flaw in Public Act 97-1161’s tax exemption for FBOs leasing space from the MAA is not that there is no assurance that the law will ever achieve its purpose. Rather, it is that there is no reasonable basis for limiting the tax incentives to this particular type of business at this particular facility in this particular part of the state. ¶ 29 Elliott Aviation depicts its circumstances as unique. They are not. Illinois has many municipal airport authorities and numerous FBOs, including FBOs like Elliott Aviation that operate near other states with a more favorable tax environment. They, too, would stand to benefit from tax incentives. Indeed, the same could be said of every other Illinois business throughout the state. ¶ 30 Elliott Aviation is an established enterprise which has no intention of moving or curtailing its operations in Rock Island County, so the availability of aeronautical services at the Quad City airport is not at risk. The company has, of course, expressed a desire to expand, but there is certainly nothing remarkable about that. The desire for expansion is a hallmark of for-profit businesses. ¶ 31 In upholding the law, the circuit court noted that Elliott Aviation’s operations in Moline are minutes away from another airport in Davenport, Iowa. The court did not explain the relevance of this point and we see none. Davenport is not the alternate Iowa location where Elliott Aviation was considering expansion. The record shows that Elliott Aviation’s Iowa facility is in Des Moines. Moreover, as we have just observed, many other Illinois businesses operate in geographical proximity to competitors and potential competitors in other states, and many Illinois businesses compete with companies headquartered in states where the tax climate may be more favorable. -9- ¶ 32 The potential economic benefits to Rock Island County are undeniable, but nothing before us suggests that there is any particular set of economic circumstances in that county that does not exist elsewhere or that would warrant special property tax incentives for its businesses. Many parts of Illinois have suffered in the wake of the recent recession and were already suffering before that. All would benefit from economic investment and job growth of the type touted by the Quad Cities Chamber of Commerce when it first proposed this legislation. ¶ 33 There was discussion on the floor of the Illinois House in response to the Senate’s unsuccessful attempt to extend the tax break to a second airport, but it does not point us to a rational basis for the law’s narrow reach either. During the discussion, the legislation’s primary sponsor, Representative Verschoore, stated: “[Senate Amendments 1 and 2] added another airport to this land-based lease. I tried to pass this for the Quad City Airport only and when it went to the Senate, they added the Lansing Airport. And so, what I’m trying to do is get it back to the original Bill where it includes just the Quad City Metropolitan Airport.” This exchange followed: “[Representative] Franks: What’s your objection to adding the extra one? [Representative] Verschoore: Well, there was objection from people higher up than me… Franks: Oh. Verschoore: …so I guess that’s my objection. Franks: I get it. Okay. Well, thank you.” (Internal quotation marks omitted.) 97th Ill. Gen. Assem., House Proceedings, Aug. 17, 2012, at 3-4. ¶ 34 Elliott Aviation speculates that the “higher ups” referenced by Representative Verschoore (whoever those might have been) had perfectly good and legitimate reasons for granting special treatment for FBOs leasing property from the MAA in Rock Island County and not extending the same benefit to anyone else, anywhere else. Based on Verschoore’s vague and mildly ominous statements and Franks’s responses (“Oh,” “I get it”), however, it seems just as likely that the limited - 10 -  applicability of the proposed legislation resulted from purely political considerations wholly unrelated to the bill’s purposes or effects. ¶ 35 In sum, based upon what is before us, we do not see and cannot reasonably conceive of anything that would justify distinguishing FBOs operating at the Quad City airport from any number of other FBOs at other Illinois airports or, indeed, from other Illinois businesses which operate on our borders or compete with companies in more tax-friendly jurisdictions, for purposes of property tax liability. To the contrary, the law presents a paradigm of an arbitrary legislative classification not founded on any substantial difference of situation or condition. Under article IV, section 13, of our constitution (Ill. Const. 1970, art. IV, § 13), arbitrary statutory classifications which discriminate in favor of a select group without a sound and reasonable basis are forbidden. Allen v. Woodfield Chevrolet, Inc., 208 Ill. 2d 12, 21-22 (2003). The appellate court was therefore correct when it concluded that Public Act 97-1161 violates the special legislation clause of the Illinois Constitution and remanded the cause to the circuit court with directions. ¶ 36 CONCLUSION ¶ 37 For the foregoing reasons, the judgment of the appellate court is affirmed. ¶ 38 Affirmed. ¶ 39 JUSTICE THEIS, dissenting: ¶ 40 As the majority correctly notes, “statutes carry a strong presumption of constitutionality.” Supra ¶ 16. A party challenging a statute bears a heavy burden of clearly establishing a constitutional violation, and this court owes a duty to uphold legislation when reasonably possible to do so. Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d 221, 234 (2005). In my view, the majority has paid only lip service to that duty by excusing the School District from carrying that burden. ¶ 41 Section 13 of article IV of the Illinois Constitution, the so-called special legislation clause, provides, “The General Assembly shall pass no special or local - 11 -  law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.” Ill. Const. 1970, art. IV, § 13. When a statute is challenged under that clause, our analysis is twofold. Initially, we must determine whether the classification created by the statute discriminates in favor of certain persons or entities. Crusius v. Illinois Gaming Board, 216 Ill. 2d 315, 325 (2005). If so, we must determine whether the classification is arbitrary. Id. The classification created by the Act is that fixed base operators (FBOs) at the Metropolitan Airport Authority of Rock Island (MAA) need not pay taxes on property leased from the MAA. The School District, as the party challenging the statute, was required to show that the classification discriminated in favor of FBOs at the MAA and that the classification was arbitrary. It failed to do either. ¶ 42 Regarding the first part of our analysis, the special legislation clause (and its predecessor in the 1870 Illinois Constitution) is founded upon “the conviction that governments should establish and enforce general principles applicable to all their citizens and not enrich particular classes of individuals at the expense of others.” Supra ¶ 19 (citing Best v. Taylor Machine Works, 179 Ill. 2d 367, 391-92 (1997)). A general law applies to all persons and entities in the same situation; a special law does not. See Board of Education of Peoria School District No. 150 v. Peoria Federation of Support Staff, Security/Policeman’s Benevolent & Protective Ass’n Unit No. 114, 2013 IL 114853, ¶ 48 (quoting Bridgewater v. Hotz, 51 Ill. 2d 103, 109 (1972)). ¶ 43 The mere fact that a law affects only a single person or entity does not make it special and, therefore, invalid under the special legislation clause. Big Sky Excavating, 217 Ill. 2d at 235. The clause “prohibits the General Assembly from conferring a special benefit or privilege upon one person or group and excluding others that are similarly situated.” Crusius, 216 Ill. 2d at 325. The majority even recognizes this: “If an entity is uniquely situated, the special legislation clause will not bar the legislature from enacting a law tailored specifically to address the conditions of that particular entity.” (Emphasis in original.) Supra ¶ 22; Peoria School District, 2013 IL 114853, ¶ 55 (“Nothing in the constitution bars the legislature from enacting a law specifically addressing the conditions of an entity that is uniquely situated.” (citing Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 154 (2006))); Bridgewater, 51 Ill. 2d at 109 (holding that the constitutional prohibition against special legislation “does not mean that every law - 12 -  shall affect alike every place and every person in the State but it does mean that it shall operate alike in all places and on all persons in the same condition”). ¶ 44 The procedural posture of this case does not affect the School District’s burden, but rather enhances it. This case comes before us after the appellate court reversed the trial court’s decision to grant Elliott Aviation’s motion for summary judgment. See 735 ILCS 5/2-1005 (West 2014). On that motion, Elliott Aviation bore the burden of persuasion, as well as the initial burden of production. Elliott Aviation could satisfy the latter burden either by presenting evidence that, if uncontroverted, would entitle the company to judgment as a matter of law on the School District’s constitutional claim or by establishing that the School District lacked evidence to prove that claim. See Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 688-89 (2000) (citing Purtill v. Hess, 111 Ill. 2d 229, 240-41 (1986)). The School District then would bear the burden of production. The School District could satisfy that burden by presenting evidence to support its claim. Williams, 316 Ill. App. 3d at 689. In this context, the evidence for both parties would relate to the threshold inquiry—whether Elliott Aviation was uniquely situated. ¶ 45 Elliott Aviation’s cross-motion for summary judgment had attachments, which indicated that the company was arguably in a unique situation. Elliott Aviation offered affidavits from Greg Sahr, its president; Bruce Carter, the airport executive and director of aviation for the Quad City International Airport in Moline; and Tara Barney, the Quad Cities Chamber of Commerce’s chief executive officer. Sahr’s affidavit indicated that Iowa does not tax FBO leaseholds, while Illinois does. Sahr continued: “Growth in the general aviation field has caused a need for Elliott to expand and grow its operations. Elliott has an opportunity to significantly expand its business at either its Moline location or its location in [Des Moines,] Iowa or [Minneapolis,] Minnesota. One factor Elliott must consider in deciding where to expand its business is which location would be most financially beneficial. Property taxes are a significant factor in Elliott’s expansion plans and prior to the passage of the Act, Elliott had considered expanding at one of the Company’s other locations where such an exemption exists. A number of Elliott’s key competitors are in states that have such an exemption including Iowa, Michigan and Nebraska. Moreover, Elliott competes nationally against competitors that are located in states that do not levy property taxes on FBOs.” - 13 - ¶ 46 According to Elliott Aviation, “Rock Island County is the only county in Illinois with a major airport that borders Iowa, which does not tax FBO leases at airports.” Carter and Barney confirmed that Iowa does not tax FBO leaseholds. Barney added that, in her belief, the bill that became Public Act 97-1161 provided a significant incentive for the company to expand its operations in Moline. ¶ 47 In response, the School District presented very little. The School District’s complaint seemed to assert that FBOs at the MAA are similar to other FBOs in Illinois simply because there are other FBOs in Illinois. The School District alleged that there are 20 FBOs in Illinois, including Elliott Aviation, but did not further identify or describe the 19 FBOs outside Rock Island, aside from mentioning one in Lansing. 1 The School District never alleged that any of those 19 FBOs purportedly doing business in this state lease property from other airport authorities and pay taxes on the leaseholds, that any of those FBOs plan to expand their businesses, or that any of those FBOs suffered from tax disadvantages vis-à-vis their cross-border competitors. Notably, the School District’s complaint had no attachments. ¶ 48 The trial court, faced with the School District’s weak and conclusory argument and Elliott Aviation’s stronger and more supported argument, concluded that the School District had not carried its burden to present evidence that Elliott Aviation or other FBOs at the MAA are similarly situated with other FBOs across the state. According to the trial court, the evidence suggested instead that Elliott Aviation is uniquely situated due to its proximity to Iowa and its choice to expand its operations either there or in Illinois. The appellate court ignored that evidence and stated only that “as to the first element of a special legislation challenge, there is no question that the legislation at issue in this case discriminates in favor of FBOs leasing property from the Metropolitan Airport Authority.” 2015 IL App (3d) 140535, ¶ 24. ¶ 49 The majority’s holding is barely more in-depth than that of the appellate court: “Public Act 97-1161, the law challenged in this case, clearly discriminates in favor of a select group, as the appellate court correctly held. 2015 IL App (3d) 140535, ¶ 24. By its terms, the law provides property tax relief only for FBOs providing aeronautical services to the public at the MAA’s Quad City 1 In its memorandum in support of its motion to reconsider below, the School District mentioned that two airport authorities—one in East Alton and one in Rockford—are located near borders with neighboring states but did not discuss whether FBOs lease property from those airport authorities. - 14 -  International Airport, and there is only one of those, Elliott Aviation. No other FBO providing aeronautical services to the public at any other Illinois airport was given similar favorable treatment ***.” Supra ¶ 25. ¶ 50 The majority rejects Elliott Aviation’s depiction of its circumstances as unique. According to the majority, “Illinois has many municipal airport authorities and numerous FBOs, including FBOs like Elliott Aviation that operate near other states with a more favorable tax environment.” Supra ¶ 29. The majority seems to accept the unsupported allegation in the School District’s complaint that there are other FBOs in Illinois, some of which conduct business at our borders. That is improper for two reasons. ¶ 51 First, the majority violates rules on judicial notice. See Ill. R. Evid. 201(b) (eff. Jan. 1, 2011); 735 ILCS 5/8-1001 (West 2014). Courts cannot take judicial notice of facts that are “doubtful or uncertain” (Motion Picture Appeal Board v. S.K. Films, 65 Ill. App. 3d 217, 226 (1978) (quoting Sproul v. Springman, 316 Ill. 271, 279 (1925))), and the School District’s allegation is certainly both. A statement in its response brief before us is even more equivocal: “[T]he very nature of the business that airport authorities and FBOs serve—air service—clearly demonstrates that some, probably many, if not all, of the airport authorities and FBOs in Illinois compete across state borders.” (Emphasis in original.) That statement, however, is not based on anything in the record, and it directly contradicts Sahr’s affidavit, which indicates that one FBO, Elliott Aviation, does compete across a state border. ¶ 52 Second, the majority’s assumption that there are other FBOs in Illinois, as well as other FBOs like Elliott Aviation, turns the presumption of constitutionality on its head. The majority ignores the School District’s complete lack of any evidence about the 19 FBOs purportedly doing business in Illinois and effectively excuses the School District from presenting evidence relevant to the first half of our constitutional analysis. The majority compounds that mistake by accepting the School District’s argument that FBOs at the MAA are not only like all other FBOs in Illinois but also like all other Illinois employers. Supra ¶ 29 (stating that “every other Illinois business throughout the state” would benefit from tax incentives like that in Public Act 97-1161). Apparently, the majority accepts the School District’s argument, made in its motion to reconsider below, that even a statute creating a tax exemption for all FBOs across the state would be special legislation because all Illinois businesses are similarly situated. - 15 - ¶ 53 An “every other Illinois business throughout the state” yardstick provides the wrong measure in special legislation cases. The legislature need not choose between a statute that governs all businesses or no statute at all. See Chicago National League Ball Club, Inc. v. Thompson, 108 Ill. 2d 357, 367 (1985). That is simply inconsistent with cases such as Crusius, Big Sky Excavating, and Schiller, where this court upheld statutes that benefitted a single person or entity. Schiller is particularly instructive. ¶ 54 In Schiller, the owner of a 160-acre parcel of farmland planned to develop the property as an upscale residential community. Although the property was in Cook County, it was across a road from the Village of Frankfort in Will County. The owner sought to have the property annexed into the Village, so that it would be a part of the Village’s school districts, rather than Cook County school districts. Senator Petka, whose district was near the property, proposed an amendment to an annexation bill that “ ‘takes care of a local concern in Will County’ ” and that would “ ‘solve a couple of school district issues *** also for a school district in Will County.’ ” Schiller, 221 Ill. 2d at 135 (quoting 90th Ill. Gen. Assem., Senate Proceedings, May 15, 1997, at 10; May 16, 1997, at 57-58 (statements of Senator Petka)). That amendment became section 7-2c of the School Code and provided that a portion of one school district may be attached to another adjacent school district, if certain conditions were met. 105 ILCS 5/7-2c (West 1998). Those conditions applied only to parcels of not more than 160 acres in Cook County and wholly within the boundaries of another school district, where the property owner had a pending annexation petition on the effective date of the statute—essentially, only to the owner’s property. Pursuant to the statute, the owner filed a petition with the state school superintendant to attach the property to the Will County school districts. The superintendant agreed to do so. ¶ 55 Several school districts in both counties, as well as a resident of Cook County, filed an administrative review suit. One of the plaintiffs’ arguments was that section 7-2c violated the special legislation clause. The trial court found the statute unconstitutional because it was enacted for the property owner “ ‘and no one else.’ ” Schiller, 221 Ill. 2d at 141. This court reversed. We agreed with the trial court that there was significant evidence in the record that the statute was intended solely to benefit the property owner. That, however, did not doom the legislation: “To contravene article IV, section 13, of our constitution, the statute must confer on a person, entity, or class of persons or entities a special benefit or - 16 -  exclusive privilege that is denied to others who are similarly situated. Thus, under the first part of the inquiry, we determine if another entity similarly situated to [the owner] was denied a privilege. This burden has been met in previous cases through evidence of other entities that would have been able to benefit from the legislative privilege, but for some limiting exclusionary provision.” Id. at 151. ¶ 56 After reviewing our case law, we concluded that the plaintiffs failed to overcome the strong presumption of constitutionality with evidence that the benefit to the property owner was denied to any other similarly situated person or entity. Id. at 152. We noted that the plaintiffs did not claim that they were similarly situated to the owner; instead, they made a conclusory argument that the statute’s requirement of a pending annexation petition on its effective date prevented owners of other property from effectuating a school district change. Id. The plaintiffs presented no evidence that other property owners “sought to convert their farmland into residential areas, desired the Village of Frankfort to annex their property, or additionally sought a school district boundary change.” Id. at 153. ¶ 57 Like the plaintiffs in Schiller, the School District failed to present any evidence about the plans of supposedly similar entities. Our review is de novo, but we still must have something to review. Because the School District offered nothing to suggest that any of the 19 other FBOs purportedly doing business in Illinois are similarly situated to FBOs at the MAA, the School District failed to carry its burden on the first part of our special legislation analysis. ¶ 58 Even if the School District had shown Public Act 97-1161 discriminates in favor of FBOs at the MAA, it did not show that the Act is arbitrary. Regarding the second part of our constitutional analysis, where, as here, the classification does not involve a fundamental right or a suspect group, it is judged by the rational basis standard. Crusius, 216 Ill. 2d at 325. Under the rational basis standard, the classification is not arbitrary if it is rationally related to a legitimate governmental interest. Id. That standard is highly deferential, and the classification will pass constitutional muster where any conceivable set of facts justifies it. Big Sky Excavating, 217 Ill. 2d at 238; Chicago National League Ball Club, 108 Ill. 2d at 369 (“if any state of facts can reasonably be conceived to sustain the classification, the existence of that state of facts at the time the statute was enacted must be assumed”); see also People ex rel. Lumpkin v. Cassidy, 184 Ill. 2d 117, 124 (1998) (“[u]nder the rational basis test, the court may hypothesize reasons for the - 17 -  legislation, even if the reasoning advanced did not motivate the legislative action”). Elliott Aviation bore the initial burden to offer reasonably conceivable facts to support the legislature’s decision to create a tax exemption for FBOs at the MAA. If it did so, the School District then bore the burden to show that no reasonably conceivable facts justified that decision. ¶ 59 In its memorandum in support of its cross-motion for summary judgment, Elliott Aviation explained that before the statute was enacted, the company weighed the pros and cons of expanding in Iowa and Illinois. The Quad Cities Chamber of Commerce issued an “economic impact summary,” which showed that the expansion project would bring millions of dollars and hundreds of jobs to Rock Island County. That study, which was attached to Elliott Aviation’s memorandum, concluded that a tax exemption for FBOs at the MAA would allow Illinois “to compete on a level playing field with the two states immediately to the West on the East-West flight corridor.” Elliott Aviation stated that Representative Verschoore, the sponsor of Public Act 97-1161, mentioned that study in his debate comments and highlighted the expected benefits from the project. Representative Morthland, another supporter of the legislation, noted that it was intended “to facilitate an expansion that will provide much reward to the community.” ¶ 60 The School District offered dual reasons why the statute was completely arbitrary. In its complaint, the School District alleged that unemployment was lower in Rock Island County than other counties in Illinois with airport authorities. The School District referred to statistics from the United States Department of Labor and the Federal Reserve Bank in St. Louis, which indicated that “the unemployment rate for the last five months of 2012 for counties within the State with airport authorities show there is no greater or special job needs in Rock Island.” According to the School District, 18 counties had a monthly unemployment rate higher than Rock Island County during that time. The School District provided no citation for those statistics and did not state whether those counties are home to the other 19 FBOs purportedly doing business in Illinois and, if so, which ones. Again, the complaint had no attachments. ¶ 61 In its memorandum in support of its complaint, the School District changed course, arguing that a tax exemption for FBOs at the MAA is not rationally related to the Act’s goals, job creation and economic development, because the Act does not directly create jobs and does not require an FBO at the MAA to create jobs before receiving the tax exemption. According to the School District, “The Act’s - 18 -  affect [sic] on jobs is uncertain and remote.” That effect became even more tenuous in the School District’s memorandum in support of its own summary judgment motion, where the School District insisted, “The Act’s affect [sic] on jobs is nonexistent.” The School District added that “the Act does not directly create or fund jobs, nor does it require jobs be created for the exemptions to be created.” ¶ 62 The appellate court focused upon the School District’s retooled argument. The appellate court agreed with the School District that any link between a tax exemption for FBOs at the MAA and job creation or economic development was speculative because the statute did not require those FBOs to reinvest the money that they saved “in such a way to create jobs and economic growth in Illinois.” 2015 IL App (3d) 140535, ¶ 26. More importantly, the appellate court refused to believe that the legislature had any reason for the classification in Public Act 97-1161, holding that “there is no justification for singling out these particular for-profit businesses over other businesses in Illinois or other FBOs in Illinois.” Id. ¶ 25. ¶ 63 The majority acknowledges that “[e]ncouraging Illinois businesses to expand in Illinois and facilitating economic growth of our communities are unquestionably legitimate functions of state government.” Supra ¶ 27. Like the appellate court, the majority observes that the statute does not require Elliott Aviation to use its tax savings to expand in Illinois. Id. And like the appellate court, the majority identified a bigger problem with the statute. According to the majority, Public Act 97-1161’s “real flaw” is that “there is no reasonable basis for limiting the tax incentives to this particular type of business at this particular facility in this particular part of the state.” Id. ¶ 28. ¶ 64 The Illinois House voted 77-31 in favor of the bill that became Public Act 97-1161; the Senate voted 43-10 in favor of it. The majority’s holding that there is no reasonable basis for the Act flies in the face of the decision by overwhelming and bipartisan majorities in both the House and Senate that there is a reasonable basis. The legislature may have believed that providing a tax exemption to FBOs at the MAA like Elliott Aviation, and thereby providing an incentive to those entities to expand there and not in a neighboring state, would lead to job creation and economic development. The legislature also may have believed that limiting the tax exemption as it did would mitigate any negative effects in other counties that are not home to FBOs with expansion plans. - 19 - ¶ 65 We have long recognized that the legislature is free to make those types of judgments. “The legislature need not choose between legislating against all evils of the same kind or not legislating at all. Instead it may choose to address itself to what it perceives to be the most acute need.” Chicago National League Ball Club, 108 Ill. 2d at 367; cf. Friedman & Rochester, Ltd. v. Walsh, 67 Ill. 2d 413, 421 (1977) (“The equal protection clauses of the State and Federal constitutions do not prohibit the legislature from pursuing a reform ‘one step at a time,’ or from applying a remedy to one selected phase of a field while neglecting the others.”). As Representative Morthland put it in the debate on the bill that became Public Act 97-1161, “[D]oing a good thing on a broad scale doesn’t preempt doing a good thing on a small scale.” 97th Ill. Gen. Assem., House Proceedings, Mar. 29, 2012, at 140 (statements of Representative Morthland). Due to its superior investigative and fact-finding facilities, the General Assembly is far better suited than this court to balance the benefits of a tax incentive for a group of businesses in one county against detriments there and elsewhere. ¶ 66 The majority acknowledges that Elliott Aviation offered a reasonably conceivable explanation—or what the majority ironically labels “perfectly good and legitimate reasons”—for legislative leaders’ decision to limit the applicability of the tax exemption in Public Act 97-1161. Supra ¶ 34. Contrary to our case law, the majority rejects that explanation and instead focuses upon Representative Verschoore’s comment that the Lansing airport was omitted from Public Act 97-1161 after “objection from people higher up than me” and Representative Franks’s response of “I get it.” (Internal quotation marks omitted.) Id. ¶¶ 33-34. The majority states that Verschoore’s comment was “vague and mildly ominous” and asserts that limiting the Act to FBOs at the MAA was a result of “purely political considerations wholly unrelated to the bill’s purposes or effects.” Id. ¶ 34. ¶ 67 Impugning the motives of a legislator based on a single comment devoid of context is unnecessary. And suggesting that there is something untoward about a political branch using political considerations to frame legislation seems naïve. See Mercy Crystal Lake Hospital & Medical Center v. Illinois Health Facilities & Services Review Board, 2016 IL App (3d) 130947, ¶ 34. A distaste for the bargaining inherent in the legislative process is not a basis for striking down a statute. Our constitutional role does not involve critiquing the legislative process. See Crusius, 216 Ill. 2d at 332 (“It is not our place to second-guess the wisdom of a statute that is rationally related to a legitimate state interest ***.”); Shields v. Judges’ Retirement System, 204 Ill. 2d 488, 497 (2003) (“It is the dominion of the - 20 -  legislature to enact laws and it is the province of the courts to construe those laws.”). ¶ 68 “Classifications drawn by the General Assembly are always presumed to be constitutionally valid, and all doubts will be resolved in favor of upholding them.” In re Petition of the Village of Vernon Hills, 168 Ill. 2d 117, 122-23 (1995). Because the majority declines to demand that the School District clearly show that the classification in Public Act 97-1167 was unconstitutional and resolves those doubts in favor of striking down the statute, I dissent. I would remand this case to the appellate court for consideration of the School District’s other constitutional claims. - 21 - 

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT February 23, 2006 No. 05-13692 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 03-00669-CR-2-WBH-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LEONARD MASON, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia _________________________ (February 23, 2006) Before TJOFLAT, WILSON and PRYOR, Circuit Judges. PER CURIAM:  Leonard Mason appeals his 21-month sentence for conspiracy to “knowingly cause false representations to be made with respect to information required to be kept in the records of a federal firearms licensee,” 18 U.S.C. §§ 371, 924(s)(1)(A), and conspiracy to “knowingly and willfully engage in the business of dealing in firearms without a license,” 18 U.S.C. §§ 371, 922(a)(1)(A). Mason argues that the district court erred when it enhanced his offense level at sentencing for obstruction of justice. We affirm. I. BACKGROUND Mason and James Pray were indicted together in a superseding indictment on January 20, 2004, for multiple federal firearms offenses. Mason pleaded not guilty and proceeded to trial. At the close of the trial, the jury found Mason guilty. On June 23, 2004, the district court conducted a sentencing hearing. At the hearing, the district court heard argument on the application of an enhancement for obstruction of justice under section 3C1.1 of the federal Sentencing Guidelines. The government argued that the obstruction enhancement was appropriate for two reasons. First, the government argued that the enhancement was warranted because, after learning that federal agents had interviewed Pray, Mason called Rashaud Wayns, a convicted felon who purchased firearms from Mason and Pray, and instructed him to “clean his house.” Wayns, who testified at trial, interpreted 2 the comment as a direction to discard the firearms he possessed. Second, the government argued that the enhancement was warranted because, after federal agents came to Mason’s house to talk with him, Mason filed a false police report with the Cobb County, Georgia, Police Department and claimed that nine pistols were stolen from his unlocked vehicle. Two months later, when the agents interviewed Mason at his home, Mason told the agents that weapons were stolen from him and presented a copy of the police report to the agents. Mason argued that the enhancement was not appropriate because there was no evidence that Mason’s false report had impeded significantly the investigation or prosecution. The district court overruled the objected and enhanced the sentence based on the false police report that Mason had filed. The district court found that the report had caused a delay of several months. Immediately before stating the calculation of the sentencing range under the Guidelines, the district court also found that Mason had “warn[ed] his co-defendant in Washington or co- conspirator in Washington.” With a two level enhancement, the district court calculated the appropriate offense level to be 18, the criminal history category to be I, and the guideline imprisonment range to be 27 to 33 months. After considering several factors, including the serious nature of the crime, Mason’s limited criminal history, and the 3 fact that Mason had been a good father and had a good work record, the district court concluded that a sentence below the guideline range would be sufficient to punish and deter Mason and entered a sentence of 21 months of imprisonment and 3 years of supervised release. Mason appeals the obstruction of justice enhancement. II. STANDARD OF REVIEW We review findings of fact by the district court for clear error. United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005). Whether the facts trigger an enhancement for obstruction of justice is a question of law we review de novo. See United States v. Banks, 347 F.3d 1266, 1269 (11th Cir. 2003). III. DISCUSSION Under section 3C1.1 of the Sentencing Guidelines, a defendant’s offense level is enhanced by two levels if he willfully obstructed or attempted to obstruct “the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction,” and the obstructive conduct relates to the defendant’s offense of conviction or a closely related offense. U.S.S.G. § 3C1.1. The application notes to section 3C1.1 provide a non-exhaustive list of examples of obstructive conduct for which the enhancement would be appropriate. See id. cmts. Application note 4(d) lists the act of “destroying or concealing or 4 directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding . . . or attempting to do so.” U.S.S.G. § 3C1.1, cmt. 4(d). Application note 4(g) lists the act of “providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense.” U.S.S.G. § 3C1.1, cmt. 4(g). We require clear factual findings to determine if the application of section 3C1.1 is supported. See United States v. Alpert, 28 F.3d 1104, 1107-08 (11th Cir. 1994) (en banc). When the district court applies the obstruction of justice enhancement, “it should note specifically what each defendant did, why that conduct warrants the enhancement, and, if applicable, how that conduct actually hindered the investigation or prosecution of the offense.” Id. at 1108. The district court applied the enhancement because it concluded that Mason had provided a false statement to a law enforcement officer that significantly obstructed the investigation of the offense. The district court stated that Mason’s false police report delayed the investigation and prosecution by several months. The district court provided no further explanation. The district court failed to follow our admonition in Alpert that a court must provide a specific explanation for the enhancement of a sentence based on a false 5 statement to a law enforcement officer. The district court did not explain how Mason’s conduct actually caused a delay in either the prosecution or investigation. See id. The record also does not reveal how, if it all, Mason’s action delayed the investigation. Mason’s appeal nevertheless fails for another reason. We may affirm the application of the enhancement on any ground supported by the record. United States v. Amedeo, 370 F.3d 1305, 1319 n.12 (11th Cir. 2004). The record reveals an alternate basis for the enhancement. Mason’s attempt to direct Wayns to destroy or conceal material evidence is sufficient to support the enhancement for obstruction under comment 4(d) to section 3C1.1. At trial, Wayns testified that Mason called Wayns and warned him to “clean his house,” which Wayns understood to mean he should get rid of his guns. At sentencing, the district court found that Mason had warned his coconspirator, and this finding by the district court was not clearly erroneous. In contrast with application note 4(g), note 4(d) does not require the government to show that the order to destroy or conceal evidence significantly impeded the investigation. The finding of the district court supports the enhancement on this alternative basis. 6  IV. CONCLUSION Mason’s sentence is AFFIRMED. 7 

149 F.3d 1189 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Ini WATSON, Appellant,v.CAPITAL REGION MEDICAL CENTER; Ken Belt; Carla Hahn; RitaStitsel, Appellees. No. 97-3726. United States Court of Appeals, Eighth Circuit. Submitted: April 23, 1998.Filed: April 28, 1998. Appeal from the United States District Court for the Western District of Missouri. Before FAGG, BEAM, and HANSEN, Circuit Judges. PER CURIAM. 1 Ini Watson appeals the district court's1 grant of summary judgment to one defendant and the dismissal of three others in her action brought under Title VII, 42 U.S.C. §§ 2000e-2000e-17. After a careful review of the record and the parties' submissions on appeal, we conclude the district court was correct and an extended discussion is unnecessary. Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B. 2 A true copy. 1 The Honorable William A. Knox, United States Magistrate Judge for the Western District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c)