Datasets:

AbstractPerspective

/

court_cases12

like 0

https://www.courtlistener.com/api/rest/v3/opinions/7224358/

*864DECISION AND ORDER RUDOLPH T. RANDA, District Judge. This case requires the Court to decide the limits that government can place on First Amendment political speech. It comes to the Court with more than the usual urgency presented by First Amendment cases because the defendants seek to criminalize the plaintiffs’ speech under Wisconsin’s campaign finance laws. Defendants instigated a secret John Doe investigation replete with armed raids on homes to collect evidence that would support their criminal prosecution. Plaintiffs move for a preliminary injunction to stop the defendants’ investigation. I. Background Eric O’Keefe is a veteran volunteer political activist who has been involved in political and policy advocacy since 1979. O’Keefe is a director and treasurer for the Wisconsin Club for Growth (“WCFG” or “the Club”), a corporation organized under the laws of Wisconsin and recognized as a non-profit entity under Section 501(c)(4) of the Internal Revenue Code. WCFG is a local, independent affiliate of the national organization Club for Growth. Its purpose is to advance free-market beliefs in Wisconsin. O’Keefe’s advocacy came to the forefront during the political unrest surrounding Governor Scott Walker’s proposal and passage of 2011 Wisconsin Act 10, also known as the Budget Repair Bill. The Bill limited the collective bargaining rights of most public sector unions to wages. The Bill also increased the amounts that state employees paid in pension and health insurance premiums. O’Keefe, the Club, and its supporters immediately recognized the importance of the Bill to the Club’s mission of promoting principles of economic freedom and limited government. The Club viewed the Bill as a model that, if successful, might be replicated across the country. Throughout this period, the Club enlisted the advice of Richard “R.J.” Johnson, a long-time advisor to WCFG. Johnson is a veteran of Wisconsin politics and is intimately familiar with the political lay of the land. WCFG generally trusted Johnson’s professional judgment as to the best methods of achieving its advocacy goals. Because of the intense public interest surrounding the Bill, O’Keefe and Johnson believed that advocacy on the issues underlying the Bill could be effective in influencing public opinion. O’Keefe and Johnson were also concerned about the large amounts of money being spent by unions and other left-leaning organizations to defeat the bill. Accordingly, O’Keefe raised funds nationwide to support issue advocacy in favor of the Bill, and Johnson took an active role in creating WCFG’s communications and, where appropriate, advising WCFG to direct funding to other organizations that would be better suited to publish communications strategically advantageous to advancing the Club’s policy goals. One notable advocacy piece, which was fairly typical, aired in major markets in February of 2011. In it, WCFG argued that the reforms of the Budget Repair Bill were fair because they corrected the inequity of allowing public workers to maintain their pre-recession salaries and benefits while the salaries and benefits of private sector employees were being reduced. This piece did not name a candidate and did not coincide with an election. The Club was the first group to run communications supporting the collective bargaining reforms. See Support Governor Walker’s Budget Repair Bill, YouTube.com (Uploaded Feb. *86514, 2011).1 More generally, the Club’s issue advocacy related to the Budget Repair Bill, issues in the 2011 Wisconsin Supreme Court campaign, key issues in the 2011 and 2012 Senate recall campaigns, and key issues in the 2012 general election campaign. WCFG did not run issue communications related to the Walker campaign or the Walker recall petition. The Milwaukee Defendants — District Attorney John Chisholm, along with Assistant District Attorneys Bruce Landgraf and David Robles — had been investigating Governor Walker through the use of a John Doe proceeding beginning in 2010. The initial focus of the first proceeding was the embezzlement of $11,242.24 that Milwaukee County had collected for the local Order of the Purple Heart while Walker was serving as Milwaukee County Executive. From there, the first John Doe developed into a long-running investigation of all things Walker-related. See, e.g., ECF No. 7-2, Declaration of David B. Rivkin, Ex. 17 (Dave Umhoefer and Steve Schultze, John Doe Investigation Looks Into Bids to House County Worker, Milwaukee Journal Sentinel (Jan. 25, 2012))2, Ex. 18 (Assistant D.A. Still Silent on Doe Records Request, Wisconsin Reporter (Oct. 10, 2012)).3 The first John Doe resulted in convictions for a variety of minor offenses, including illegal fundraising and campaigning during work hours. Id., Ex. 20 (Steve Schultze, Former Walker Aide Pleads Guilty, Will Cooperate with DA, Milwaukee Journal Sentinel (Feb. 7, 2012)).4 During this timeframe, Walker was elected governor and survived a recall election. In August of 2012, Milwaukee County District Attorney John Chisholm initiated a new John Doe proceeding in Milwaukee County. Drawing on information uncovered in the first John Doe, the new investigation targeted alleged “illegal campaign coordination between Friends of Scott Walker [FOSW], a campaign committee, and certain interest groups organized under the auspices of IRC 501(c)(4)” — in other words, social welfare organizations like the Club. Id., Ex. 28 (Chisholm Letter to Judge Kluka, Aug. 22, 2013). In early 2013, Chisholm asked Wisconsin Attorney General J.B. Van Hollen to take the investigation statewide. Van Hollen refused, citing conflicts of interest. Van Hollen also explained as follows: This is not a matter, however, where such devices should be employed, even if they could be employed effectively. This is because there is no necessity, at this time, for my office’s involvement because there are other state officials who have equal or greater jurisdictional authority without the potential disabilities I have mentioned. The Government Accountability Board has statewide jurisdiction to investigate campaign finance violations, which may be civil or criminal in nature. Thus, there is no jurisdictional necessity to involve my office. Should the Government Accountability Board, after investigation, believe these matters are appropriate for civil enforcement, they have the statutory authority to proceed. Should the Government Accountability Board determine, after investigation, that criminal enforcement is appropriate, they may refer *866the matter to the appropriate district attorney. Only if that district attorney and a second district attorney declines to prosecute would my office have prose-cutorial authority. Id., Ex. 29 (Van Hollen Letter to Chisholm, May 31, 2013). Accordingly, Van Hollen was under the apparent impression that the GAB was not involved in the investigation, advising Chisholm that the GAB “as a lead investigator and first deci-sionmaker is preferable in this context.” Id. In reality, Chisholm had already consulted with the GAB, and it appears that the GAB was involved since the outset of the investigation. ECF No. 109-1, Chisholm’s Supplemental Response Brief at 16; ECF No. 120-7, Plaintiffs’ Supplemental Memorandum, Ex. I. In June of 2013, the GAB issued a unanimous resolution authorizing the use of its powers under Wisconsin Statutes, including “the issuance of subpoenas to any organization or corporation named in the John Doe materials, its agents and employees, and to any committee or individual named in the John Doe materials ...” ECF No. 120, Declaration of Samuel J. Leib, Ex. A. The GAB resolution also provided that the Board’s agents “may investigate any action or activity related to the investigation’s purpose, including criminal violations of Chapter 11.” Id. Thereafter, District Attorneys from four other counties — Columbia, Dane, Dodge, and Iowa — opened parallel John Doe proceedings. Concerned that the investigation would appear partisan, Chisholm wrote to then-presiding Judge Barbara Kluka that “the partisan political affiliations of the undersigned elected District Attorneys will lead to public allegations of impropriety. Democratic prosecutors will be painted as conducting a partisan witch hunt and Republican prosecutors will be accused of ‘pulling punches.’ An Independent Special Prosecutor having no partisan affiliation addresses the legitimate concerns about the appearance of impropriety.” Rivkin Dec., Ex. 28 (Aug. 22, 2013 Letter). Accordingly, at Chisholm’s request, Judge Kluka appointed former Deputy United States Attorney Francis Schmitz as special prosecutor to lead the five-county investigation. Early in the morning of October 3, 2013, armed officers raided the homes of R.J. Johnson, WCFG advisor Deborah Jordahl, and several other targets across the state. ECF No. 5-15, O’Keefe Declaration, ¶ 46. Sheriff deputy vehicles used bright floodlights to illuminate the targets’ homes. Deputies executed the search warrants, seizing business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys. Among the materials seized were many of the Club’s records that were in the possession of Ms. Jordahl and Mr. Johnson. The warrants indicate that they were executed at the request of GAB investigator Dean Nickel. On the same day, the Club’s accountants and directors, including O’Keefe, received subpoenas demanding that they turn over more or less all of the Club’s records from March 1, 2009 to the present. The subpoenas indicated that their recipients were subject to a Secrecy Order, and that their contents and existence could not be disclosed other than to counsel, under penalty of perjury. The subpoenas’ list of advocacy groups indicates that all or nearly all right-of-center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present are targets of the investigation. Id., Ex. 34 (O’Keefe Subpoena); see also Ex. 33 (Wisconsin Political Speech Raid, Wall Street Journal (Nov. 18, 2013), explaining that the subpoenas target “some 29 conservative groups, in-*867eluding Wisconsin and national nonprofits, political vendors and party committees”).5 The Club moved to quash the subpoenas and also to suspend inspection of privileged documents seized from its political associates. In response, the prosecutors argued that the subpoena targets and others were engaged in a “wide-ranging scheme to coordinate activities of several organizations with various candidate committees to thwart attempts to recall Senate and Gubernatorial candidates” through a “nationwide effort to raise undisclosed funds for an organization which then funded the activities of other organizations supporting or opposing candidates subject to recall.” Id., Ex. 38, State’s Consolidated Response to Motions to Quash. According to the prosecutors, R.J. Johnson controlled WCFG and used it as a “hub” to coordinate fundraising and issue advocacy involving FOSW and other 501(c)(4) organizations such as Citizens for a Strong America, Wisconsin Right to Life, and United Sportsmen of Wisconsin. Id. Judge Gregory Peterson, who became the presiding judge after Judge Kluka’s recu-sal, granted the motion to quash the subpoenas because there was “no evidence of express advocacy.” He then stayed his order pending appeal. Id., Ex. 48, 49. The current John Doe investigation has “devastated” O’Keefe’s ability to undertake issue advocacy with WCFG. O’Keefe Dec., ¶ 40. O’Keefe lost most of his fundraising abilities for the Club immediately because: (1) it would be unethical to raise money without disclosing that he is a target in a criminal investigation; (2) it would be unwise for prospects to invest the time required for them to independently evaluate any risks; (3) the secrecy order purports to bar O’Keefe from disclosing the facts of the investigation and the reasons he believes that WCFG is not guilty of any crimes; and (4) O’Keefe cannot assure donors that their information will remain confidential as prosecutors have targeted that information directly. As a result, O’Keefe estimates that the Club has lost $2 million in fundraising that would have been committed to issue advocacy. Id., ¶ 49. Moreover, O’Keefe is an active board member in several national organizations engaging in issue advocacy outside of WCFG. O’Keefe’s activities with those groups have been “dramatically impaired” in the following ways. First, O’Keefe’s own time has been diverted from national issues and investment activities to the response and defense against the John Doe investigation. Second, many of the people O’Keefe works with are named in the subpoenas and likely received subpoenas themselves, putting them on notice of the investigation and leading them to believe that O’Keefe may be in legal trouble and that they may suffer consequences by association. Third, the mailing of subpoenas around the country has disclosed to O’Keefe’s political network that there are risks to engaging in politics in Wisconsin. Many of the people O’Keefe has previously dealt with apparently do not want to communicate with O’Keefe about political issues. The subpoenas serve as a warning to those individuals that they should not associate with the Club. Id., ¶ 50. Ultimately, and perhaps most importantly, the timing of the investigation has frustrated the ability of WCFG and other right-leaning organizations to participate in the 2014 legislative session and election cycle. Id., ¶ 60. *868II. Analysis To obtain a preliminary injunction, O’Keefe and the Club must establish that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the “balance of equities” tips in their favor (i.e., denying an injunction poses a greater risk to O’Keefe and the Club than it does to the defendants), and that issuing an injunction is in the public interest. Smith v. Exec. Dir. of Ind. War Mem’l Comm’n, 742 F.3d 282, 286 (7th Cir.2014). Since “unconstitutional restrictions on speech are generally understood not to be in the public interest and to inflict irreparable harm that exceeds any harm an injunction would cause,” the plaintiffs’ “main obstacle to obtaining a preliminary injunction” is “demonstrating a likelihood of success on the merits.” Id. (citing ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir.2012)). A. Likelihood of Success “Congress [and hence the States via application of the Fourteenth Amendment] shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. It bears repeating that we are a country with a government that is of the people, by the people, and for the people. Said another way, it is a country with a government that is of the Constitution, by the Constitution, and for the Constitution. The Constitution is a pact made between American citizens then and now to secure the blessings of liberty to themselves and to their posterity by limiting the reach of their government into the inherent and inalienable rights that every American possesses. In this larger sense, the government does not run the government. Rather, the people run their government, first within the framework of the restrictions placed on government by the Constitution, and second by the constitutional rights each citizen possesses that are superior to the operation of government. One of these rights is the First Amendment right to speak freely, which “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971). The First Amendment is “[pjremised on mistrust of governmental power,” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), and its vigorous use assures that government of the people remains so. When government attempts to regulate the exercise of this constitutional right, through campaign finance laws or otherwise, the danger always exists that the high purpose of campaign regulation and its enforcement may conceal self-interest, and those regulated by the Constitution in turn become the regulators. See generally Allison R. Hayward, Revisiting the Fable of Reform, 45 Harv. J. on Legis. 421 (2008). And “those who govern should be the last people to help decide who should govern.” McCutcheon v. Fed. Election Comm’n, — U.S. ——, 134 S.Ct. 1434, 1441-42, 188 L.Ed.2d 468 (2014) (emphasis in original). In this respect, First Amendment protection “reaches the very vitals of our system of government,” as explained by Justice Douglas: Under our Constitution it is We the People who are sovereign. The people have the final say. The legislators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important — vitally important — that all channels of communication be open to them during every election, that no point of view be restrained or barred, and that the people *869have access to the views of every group in the community. United States v. Int’l Union United Auto., Aircraft & Agric. Workers of Am., 352 U.S. 567, 593, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957) (dissenting opinion). Therefore any attempt at regulation of political speech is subject to the strictest scrutiny, meaning that it is the government’s burden to show that its regulation is narrowly tailored to achieve the only legitimate goal of such regulation— preventing quid pro quo corruption or the appearance thereof as it pertains to elected officials or candidates. Applying strict scrutiny to this case, the plaintiffs have shown, to the degree necessary on the record before the Court, that their First Amendment rights are being infringed by the defendants’ actions. The defendants are pursuing criminal charges through a secret John Doe investigation against the plaintiffs for exercising issue advocacy speech rights that on then-face are not subject to the regulations or statutes the defendants seek to enforce. This legitimate exercise of O’Keefe’s rights as an individual, and WCFG’s rights as a 501(c)(4) corporation, to speak on the issues has been characterized by the defendants as political activity covered by Chapter 11 of the Wisconsin Statutes, rendering the plaintiffs a subcommittee of the Friends of Scott Walker (“FOSW”) and requiring that money spent on such speech be repoi’ted as an in-kind campaign contribution. This interpretation is simply wrong. The defendants further argue that the plaintiffs’ expenditures are brought within the statute because they were coordinated by enlisting the support of R.J. Johnson, a representative and agent of FOSW. Coupled with Governor Walker’s promotion and encouragement, defendants go on to argue that this activity is the type of coordination and pre-planning that gives rise to a quid pro quo corruption appropriate for prosecution. This additional factor also fails as a justification for infringing upon the plaintiffs’ First Amendment rights. A candidate’s promotion and support of issues advanced by an issue advocacy group in its effort to enhance its message through coordination cannot be characterized as quid pro quo corruption, “[t]he hallmark of [which] is the financial quid pro quo: dollars for political favors.” Fed. Election Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 497, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985). In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Supreme Court established a distinction between spending for political ends and contributing to political candidates. Contribution limits are subject to intermediate scrutiny, but expenditure limits get higher scrutiny because they “impose significantly more severe restrictions on protected freedoms of political expression and association.” Buckley at 23, 96 S.Ct. 612. “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Id. at 19, 96 S.Ct. 612. Therefore, laws that burden spending for political speech “get strict scrutiny and usually flunk.” Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 153 (7th Cir.2011) (collecting cases). The standard to apply in these cases was recently made clear by the Supreme Court in McCutcheon. Any campaign finance regulation, and any criminal prosecution resulting from the violation thereof, must target activity that results in *870or has the potential to result in quid pro quo corruption. As the Court has explained: In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit political speech. We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. ‘Ingratiation and access ... are not corruption.’ They embody a central feature of democracy — that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns. Any regulation must target instead what we have called ‘quid pro quo’ corruption or its appearance. That Latin phrase captures the notion of a direct exchange or an official act for money. ‘The hallmark of corruption is the financial quid pro quo: dollars for political favors.’ Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government ‘into the debate over who should govern.’ And those who govern should be the last people to help decide who should govern. McCutcheon, 134 S.Ct. at 1441-42 (emphases in original) (internal citations omitted). In short, combating quid pro quo corruption, or the appearance thereof, is the only interest sufficient to justify campaign-finance restrictions. “Over time, various other justifications for restricting political speech have been offered — equalization of viewpoints, combating distortion, leveling electoral opportunity, encouraging the use of public financing, and reducing the appearance of favoritism and undue political access or influence — but the Court has repudiated them all.” Borland at 153-54 (collecting cases). The First Amendment “prohibits such legislative attempts to ‘fine-tune’ the electoral process, no matter how well intentioned.” McCutcheon at 1450. Stated another way, the “constitutional line” drawn in McCutcheon after its 40-year analysis is a ringing endorsement of the full protection afforded to political speech under the First Amendment. This includes both express advocacy speech — i.e., speech that “expressly advocates the election or defeat of a clearly identified candidate,” Buckley at 80, 96 S.Ct. 612, and issue advocacy speech. Only limited intrusions into the First Amendment are permitted to advance the government’s narrow interest in preventing quid pro quo corruption and then only as it relates to express advocacy speech. This is so because express advocacy speech is enabled by the infusion of money which can be called “express advocacy money.” Express advocacy money is viewed in two ways. The fundamental view is that express advocacy money represents protected First Amendment speech. Another view of express advocacy money, along with its integrity as First Amendment political speech, is the view that it may have a quid pro quo corrupting influence upon the political candidate or political committee to which it is directly given. That view holds that unlimited express advocacy money given to a political candidate may result in the quid pro quo corruption that McCutcheon and other cases describe as “dollars for political favors,” or the “direct exchange of an official act for money.” Hence regulation setting contribution limits on express advocacy money and preventing the circumvention of those limits by coordination is permitted. *871Conversely, issue advocacy, which is enabled by what we can call “issue advocacy money,” is not subject to these limitations because it is viewed only one way, and that is as protected First Amendment speech. This is not a recognition that quid pro quo corruption is the only source of corruption in our political system or that issue advocacy money could not be used for some corrupting purpose. Rather, the larger danger is giving government an expanded role in uprooting all forms of perceived corruption which may result in corruption of the First Amendment itself. It is a recognition that maximizing First Amendment freedom is a better way to deal with political corruption than allowing the seemingly corruptible to do so. As other histories tell us, attempts to purify the public square lead to places like the Guillotine and the Gulag. The Court now turns to the defendants’ efforts to regulate the plaintiffs’ issue advocacy speech. As stated, this type of speech is viewed by the Supreme Court as pure First Amendment speech, does not have the taint of quid pro quo corruption that exists with express advocacy speech, and is not subject to regulation. Under Wisconsin’s campaign finance law, an expenditure or “disbursement,” Wis. Stat. § 11.01(7), is for “political purposes” when it is done “for the purpose of influencing” an election. § 11.01(16). These types of expenditures and disbursements are subject to reporting requirements. §§ 11.05, 11.06. Failure to comply with these requirements subject the speaker to civil and criminal penalties. §§ 11.60,11.61. In Buckley, the Court held -that the same operative language — “for the purpose of influencing” an election — can only apply to “funds used for communications that expressly advocate the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular ... candidate.” Buckley at 80, 96 S.Ct. 612. Later, for the “reasons regarded as sufficient in Buckley,” the Court refused to adopt a test which turned on the speaker’s “intent to affect an election. The test to distinguish constitutionally protected political speech from speech that [the government] may proscribe should provide a safe harbor for those who wish to exercise First Amendment rights.... A test turning on the intent of the speaker does not remotely fit the bill.” Fed. Election Comm’n v. Wis. Right to Life, Inc. (WRTL), 551 U.S. 449, 467-68, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007). This is because an intent-based standard “offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.” Buckley at 43, 96 S.Ct. 612. Accordingly, “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” WRTL at 469-70, 127 S.Ct. 2652; Buckley at 44 n. 52, 96 S.Ct. 612 (statute’s reach must be limited to “communications containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject’”). It is undisputed that O’Keefe and the Club engage in issue advocacy, not express advocacy or its functional equivalent. Since § 11.01(16)’s definition of “political purposes” must be confined to express advocacy, the plaintiffs cannot be and are not subject to Wisconsin’s campaign finance laws by virtue of their expenditures on issue advocacy. However, the defendants argue that issue advocacy does not create a free-speeeh *872“safe harbor” when expenditures are coordinated between a candidate and a third-party organization. Barland at 155 (citing Fed. Election Comm’n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 465, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001)); see also Republican Party of N.M. v. King, 741 F.3d 1089, 1103 (10th Cir.2013). O’Keefe and the Club maintain that they did not coordinate any aspect of their communications with Governor Walker, Friends of Scott Walker, or any other candidate or campaign, and the record seems to validate that assertion.6 However, the Court need not make that type of factual finding because — once again — the phrase “political purposes” under Wisconsin law means express advocacy and coordination of expenditures for issue advocacy with a political candidate does not change the character of the speech. Coordination does not add the threat of quid pro quo corruption that accompanies express advocacy speech and in turn express advocacy money. Issue advocacy money, like express advocacy money, does not go directly to a political candidate or political committee for the purpose of supporting his or her candidacy. Issue advocacy money goes to the issue advocacy organization to provide issue advocacy speech. A candidate’s coordination with and approval of issue advocacy speech, along with the fact that the speech may benefit his or her campaign because the position taken on the issues coincides with his or her own, does not rise to the level of “favors for cash.” Logic instructs that there is no room for a quid pro quo arrangement when the views of the candidate and the issue advocacy organization coincide.7 Defendants’ attempt to construe the term “political purposes” to reach issue advocacy would mean transforming issue advocacy into express advocacy by interpretative legerdemain and not by any analysis as to why it would rise to the level of quid pro quo corruption. As the defendants argue, the Club would become a “subcommittee” of a campaign committee simply because it coordinated therewith. Wis. Stat. § 11.10(4). If correct, this means that any individual or group engaging in any kind of coordination with a candidate or campaign would risk forfeiting their right to engage in political speech. The legislative tail would wag the constitutional dog.8 *873Maximizing the capability of 501(c)(4) organizations maximizes First Amendment political freedom, squares with Justice Douglas’ exhortation in Int’l Union, supra, that “all channels of communication” should be open to the citizenry, and may be the best way, as it has been in the past, to address problems of political corruption. As long ago as 1835, Alexis de Tocqueville recognized that the inner strength of the American people is their capacity to solve almost any problem and address any issue by uniting in associations. Among those associations were citizen political associations utilized to prevent the “encroachments of royal power.” Democracy in America 595 (Arthur Goldhammer trans., Library of America ed., 2004). Because associations can serve the same purpose today, their efforts should be encouraged, not restricted. To sum up, the “government’s interest in preventing actual or apparent corruption — an interest generally strong enough to justify some limits on contributions to candidates — cannot be used to justify restrictions on independent expenditures.” Barland at 153 (citing Citizens United at 357, 130 S.Ct. 876). “Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.” Citizens United at 365, 130 S.Ct. 876. Issue ads by a 501(c)(4) corporation “are by no means equivalent to contributions, and the quid-pro-quo corruption interest cannot justify regulating them.” WRTL at 478-79, 127 S.Ct. 2652. To equate these ads to contributions is to “ignore their value as political speech.” Id. at 479, 127 S.Ct. 2652. While advocating a certain viewpoint may endear groups like the Club to like-minded candidates, “ingratiation and access ... are not corruption.” Citizens United at 360, 130 S.Ct. 876. O’Keefe and the Club obviously agree with Governor Walker’s policies, but coordinated ads in favor of those policies carry no risk of corruption because the Club’s interests are already aligned with Walker and other conservative politicians. Such ads are meant to educate the electorate, not curry favor with corruptible candidates. “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to ... quid pro quo corruption.” McCutcheon at 1450 (emphasis added). While the defendants deny that their investigation is motivated by animus towards the plaintiffs’ conservative viewpoints, it is still unlawful to target the plaintiffs for engaging in vigorous advocacy that is beyond the state’s regulatory reach. The defendants stress that 501(c)(4) corporations command huge sums of money because there are no restrictions on contributions, and are therefore subject to abuse if they are coordinated. In addition, they emphasize that donors have a right to remain anonymous which flies in the face of the public’s right to know. Again, the answer to the first concern is simply that the government does not have a right to pursue the possibility of corruption, only that which evinces a quid pro quo corruption. Defendants’ view that the subject coordination could result in quid pro quo corruption is “speculation” that “cannot justify ... substantial intrusion on First Amendment rights.” McCutcheon at 1456. For it is not the extent of the coordination that matters, it is whether the issue advocacy money is used for express advocacy, and the clearest evidence of whether or not it is used for express advocacy is the type of speech produced by the money used to produce it. “The First Amend*874ment protects the resulting speech.” Citizens United at 351, 130 S.Ct. 876 (emphasis added). As it relates to the facts of this case, no investigation, much less a secret one, is required to discover any abuse of Chapter 11 of the Wisconsin Statutes. As to the second concern of anonymity, the law simply states that 501(c)(4) donors have a right to remain anonymous. The supporting rationale is that these donors serve the First Amendment by promoting issue advocacy, and that does not trigger the need for the disclosure required when one is engaged in express advocacy. “Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws. Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights.” Citizens United at 364, 130 S.Ct. 876 (internal citations omitted). The plaintiffs have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted. Instead, it should be recognized as promoting political speech, an activity that is “ingrained in our culture.” Id. Therefore, for all of the foregoing reasons, the plaintiffs are likely to succeed on their claim that the defendants’ investigation violates their rights under the First Amendment, such that the investigation was commenced and conducted “without a reasonable expectation of obtaining a valid conviction.” Kugler v. Helfant, 421 U.S. 117, 126 n. 6, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975); see also Collins v. Kendall Cnty., Ill., 807 F.2d 95, 101 (7th Cir.1986); Wilson v. Thompson, 593 F.2d 1375, 1387 n. 22 (5th Cir.1979). B. Remaining Factors Having established that the plaintiffs are likely to succeed, the remaining factors can be addressed summarily, if at all. The “Toss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,’ and the ‘quantification of injury is difficult and damages are therefore not an adequate remedy.’ ” Alvarez, 679 F.3d at 589 (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir.1982)). Moreover, “if the moving party establishes a likelihood of success on the merits, the balance of harms normally favors granting preliminary injunctive relief because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional.” Id. (citing Joelner v. Vill. of Wash. Park, Ill., 378 F.3d 613, 620 (7th Cir.2004)). Put another way, “injunctions protecting First Amendment freedoms are always in the public interest.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir.2006). Defendants argue that the issuance of an injunction would throw into question the validity of GAB’s interpretation and administration of Wisconsin’s campaign finance laws, allowing candidates to solicit large amounts of money through the guise of a 501(c)(4) organization and then direct those expenditures to benefit the candidates’ campaign. This is just another way of saying that the public interest is served by enforcing a law that restricts First Amendment freedoms. Obviously, the public interest is served by the exact opposite proposition. . C. Security Federal Rule of Civil Procedure 65(c) provides that courts can issue preliminary injunctive reliéf “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have *875been wrongfully enjoined or restrained.” The Court will not require the plaintiffs to post security, although it will consider a renewed application if the defendants choose to file one. See, e.g., N.Y. Civil Liberties Union v. N.Y. City Transit Auth., 675 F.Supp.2d 411, 439 n. 37 (S.D.N.Y.2009) (refusing to require security in a First Amendment case because there was “no evidence in the record to support a finding that Defendant will suffer any monetary damages as a result of this injunction”); see also Huntington Learning Ctr., Inc. v. BMW Educ., LLC, No. 10-C-79, 2010 WL 1006545, at *1 (E.D.Wis. March 15, 2010) (noting that the Court can dispense with the bond requirement when there is “no realistic likelihood of harm to the defendant from enjoining his or her conduct. Furthermore, [a] bond may not be required ... when the movant has demonstrated a likelihood of success”) (internal citations omitted). III. Conclusion Buckley’s distinction between contributions and expenditures appears tenuous. McCutcheon at 1464 (“today’s decision, although purporting not to overrule Buckley, continues to chip away at its footings”) (Thomas, J., concurring). As Justice Thomas wrote, “what remains of Buckley is a rule without a rationale. Contributions and expenditures are simply ‘two sides of the same First Amendment coin,’ and our efforts to distinguish the two have produced mere ‘word games’ rather than any cognizable principle of constitutional law.” Id. Even under what remains of Buckley, the defendants’ legal theory cannot pass constitutional muster. The plaintiffs have been shut out of the political process merely by association with conservative politicians. This cannot square with the First Amendment and what it was meant to protect. * * * NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT the plaintiffs’ motion to preliminarily enjoin Defendants Chisholm, Landgraf, Robles, Nickel and Schmitz from continuing to conduct the John Doe investigation is GRANTED. The Defendants must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. Plaintiffs and others are hereby relieved of any and every duty under Wisconsin law to cooperate further with Defendants’ investigation. Any attempt to obtain compliance by any Defendant or John Doe Judge Gregory Peterson is grounds for a contempt finding by this Court. . http://www.youlube.com/watch?v=y YEgoxdxzAO. . http://rn.jsonline.com/topstories/138020933. him. . http://watchdog.org/58691/wiassistant-d-a-still-silent-on-doe-records-request/. . http://www.jsonline.com/news/milwaukee/ former-walker-aide-pleadsguilty-to-cooperate-withda-oc43oit-l38874409. html. . http://online.wsj.com/news/articles/SB 1000142405270230479940457915595328655 2832. . Plaintiffs’ Exhibit H, ECF No. 120-6. . Moreover, if Wisconsin could regulate issue advocacy — coordinated or otherwise — it would open the door to a trial on every ad “on the theory that the speaker actually intended to affect an election, no matter how compelling the indications that the ad concerned a pending legislative or policy issue. No reasonable speaker would choose to run an ad ... if its only defense to a criminal prosecution would be that its motives were pure.” WRTL at 468, 127 S.Ct. 2652. . For example, if the Boy Scouts coordinated a charitable fundraiser with a candidate for office, the Boy Scouts would become a campaign subcommittee subject to the requirements and limitations of Wisconsin campaign-finance laws, exposing them to civil and criminal penalties for touting the candidate’s support. See, e.g, Clifton v. Fed. Election Comm’n, 114 F.3d 1309, 1314 (1st Cir.1997) ("it is beyond reasonable belief that, to prevent corruption or illicit coordination, the government could prohibit voluntary discussions between citizens and their legislators and candidates on public issues”). Similarly, if a 501(c)(4) organization like the Club coordinated a speech or fundraising dinner with a Wisconsin political candidate, all of its subsequent contributions and expenditures would be attributable to that candidate’s committee and subject to the limitations of Wisconsin law. This would preclude the organization from making any independent expenditures after initially engaging in coordinated issue advocacy. Wis. Stat. §§ 11.05(6), 11.16(l)(a). It would also bar the organization from accepting corporate contributions which could then, in turn, be used for independent expenditures. § 11.38.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217473/

MEMORANDUM ** Andres Ernesto Hernandez appeals pro se the judgment dismissing his civil rights action as time-barred. We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s decision that a claim is barred by the statute of limitations de novo. Santa Maria v. Pacific Bell, 202 F.3d 1170, 1175 (9th Cir.2000). We vacate and remand. *807Hernandez filed his initial complaint on September 30, 1999. The action was later dismissed without prejudice because Hernandez failed to comply with court orders. Hernandez then filed a “motion to show cause” requesting that the court reopen the action. He explained that he had been unable to attend court appearances because he was incarcerated. The district court construed the motion as a motion to reopen, and, in an order filed May 2, 2001, granted Hernandez leave to “re-file his complaint in this action.” Hernandez filed a “first amended complaint,” which was filed under the same case number assigned to his original complaint. The defendant filed a motion to dismiss arguing that the action was time-barred. In deciding the motion, the district court apparently used the date Hernandez filed his first amended complaint as the initial filing date and concluded that the action was untimely. In the district court’s prior order of May 2, 2001 granting leave to refile a complaint, however, the court appeared to relieve Hernandez from the judgment of dismissal by reopening the action. See Fed.R.Civ.P. 60(b). This conclusion is buttressed by the court’s continued use of the original case number. Therefore, the initial filing date of September 30, 1999 should have been used in determining timeliness, see Fed.R.Civ.P. 15(c)(2), and the action was timely. See Papa v. United States, 281 F.3d 1004, 1009 (9th Cir.2002) (Bivens claim has one-year statute of limitations under California law). Hernandez also appeals the denial of his request for appointment of counsel. We affirm the district court’s denial of appointment of counsel because Hernandez failed to demonstrate exceptional circumstances. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.1997). Appellees shall bear the costs on appeal. VACATED and REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217474/

MEMORANDUM ** Omero Irael Diaz-Castillo, a native and citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s denial of his application for asylum and withholding of deportation. Because the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction under 8 U.S.C. § 1105a(a). We deny the petition. We review the BIA’s factual determinations for substantial evidence, and must uphold the BIA’s decision unless the evidence compels a contrary result. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Substantial evidence supports the BIA’s conclusion that Diaz-Castillo did not show persecution on account of imputed political opinion in light of his testimony that guerrillas beat him only because they were looking for his father. See Cruz-Navarro v. INS, 232 F.3d 1024, 1030 (9th Cir.2000). Because Diaz-Castillo did not meet the standard for asylum, he could not satisfy the standard for withholding of deportation. See Li v. Ashcroft, 312 F.3d 1094, 1099 (9th Cir.2002). We do not reach Diaz-Castillo’s contention that the BIA erred by finding him not credible because the record reflects that neither the IJ nor the BIA made an adverse credibility finding. Diaz-Castillo’s motion to hold the proceedings in abeyance is denied. We stay the mandate for 90 days and instruct Diaz-Castillo to a file a status report with the court every 30 days. The mandate shall issue 90 days after the date of this memorandum. The court sua sponte changes the docket to reflect that John Ashcroft, Attorney General, is the proper respondent. The Clerk shall amend the docket to reflect the above caption. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217475/

MEMORANDUM** Francisco Humberto Hernandez, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming the immigration judge’s denial of his motion to terminate removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. See Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134 (9th Cir.2001) (noting that “[w]e retain jurisdiction to determine our own jurisdiction”). We review de novo, Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir.2002), and we dismiss the petition. Hernandez contends that he is not removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony at any time after “admission,” because he entered the United States without inspection, and then adjusted to lawful permanent resident status under the Special Agricultural Worker program. We disagree. Because Hernandez was “lawfully admitted” as a legal permanent resident through adjustment of status before he was convicted of an aggravated felony, the BIA correctly denied Hernandez’s request to terminate removal proceedings. See Ocampo-Duran, 254 F.3d at 1134-35. We dismiss the petition for lack of jurisdiction. See id. at 1135. PETITION DISMISSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217476/

MEMORANDUM** Jonas Yuri Perez-Baten, and Griselda Carolina De Leon-Perez, husband and wife, natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying asylum and withholding of deportation. Because the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction under 8 U.S.C. § 1105a(a). We deny the petition. We review the BIA’s factual determinations for substantial evidence, and must uphold the BIA’s decision unless the evidence compels a contrary result. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). To establish eligibility for asylum a petitioner must show persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Substantial evidence supports the BIA’s conclusion that the guerillas attempted to forcibly recruit Perez-Baten because of his knowledge and military *811training, and not on account of a protected ground. Cf. INS v. Elias-Zacarias, 502 U.S. 478, 483 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (guerillas’ attempt to recruit members to augment their troops rather than show their displeasure does not constitute persecution on account of a protected ground). Similarly, any threats against Leon-Perez were motivated by a desire for information regarding PerezBaten, and not on account of her political opinion or any other protected ground. See Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir.2003). Because Perez-Baten and Leon-Perez did not meet the standard for asylum, it follows that they did not satisfy the standard for withholding of deportation. See Li v. Ashcroft, 312 F.3d 1094, 1099 (9th Cir.2002). We are not persuaded by Perez-Baten and Leon-Perez’s contention that the IJ erred by admitting into evidence the 1997 and 1998 Guatemalan country reports. The court sua sponte changes the docket to reflect that John Ashcroft, Attorney General, is the proper respondent. The Clerk shall amend the docket to reflect the above caption. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217477/

MEMORANDUM ** *812Taxpayer Edward K. Metcalf appeals pro se the tax court’s order denying his claim for overpayment of taxes on his individual retirement account (“IRA”) income for the 1996 tax year. We have jurisdiction to review the final order of the tax court under 26 U.S.C. § 7482. We review the tax court’s legal conclusions de novo, and its factual findings for clear error. Estate of Rapp v. Comm’r, 140 F.3d 1211, 1215 (9th Cir.1998). We affirm. The tax court properly denied Metcalfs claim for overpayment because Metcalfs 1996 IRA distribution was taxable as income when Metcalf failed to roll over the distribution into another IRA account within 60 days of receipt. See 26 U.S.C. § 408(d)(l)(3). Metcalfs contention that 26 U.S.C. § 6511(a) allows three years to roll over his IRA distribution lacks merit because that provision refers only to the time in which an amended return may be filed. See 26 U.S.C. § 6511(a); see also Anderson v. United States, 966 F.2d 487, 488 n. 2 (9th Cir.1992). Metcalfs remaining contentions also lack merit. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217478/

MEMORANDUM* AND ORDER Kwang-Wei Han (“Han”) appeals pro se, via the Bankruptcy Appellate Panel, the Bankruptcy Court’s order authorizing the sale of real property belonging to a corporation in which Han is the sole shareholder. We dismiss the appeal, because the real property has been sold to a third party and that sale has been concluded, rendering this appeal moot. See Nat’l Mass Media Telecomm. Sys., Inc. v. Stanley (In re Nat’l Mass Media Telecomm. Sys., Inc.), 152 F.3d 1178, 1180-81 (9th Cir.1998). Han’s Request for Judicial Notice, filed April 9, 2003, is denied as moot. APPEAL DISMISSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217479/

MEMORANDUM* AND ORDER Kwang-Wei Han (“Han”) appeals pro se, via the Bankruptcy Appellate Panel, the Bankruptcy Court’s order authorizing the sale of real property belonging to a corporation in which Han is the sole shareholder. We dismiss the appeal, because the real property has been sold to a third party and that sale has been concluded, rendering this appeal moot. See Nat’l Mass Media Telecomm. Sys., Inc. v. Stanley (In re Nat’l Mass Media Telecomm. Sys., Inc.), 152 F.3d 1178, 1180-81 (9th Cir.1998). Han’s Request for Judicial Notice, filed April 9, 2003, is denied as moot. APPEAL DISMISSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217480/

MEMORANDUM* Petitioner relied on the district court’s incorrect advice and is thus entitled to equitable tolling during the time his first federal petition was pending. See Smith v. Ratelle, 323 F.3d 813, 819 (9th Cir.2003) (finding equitable tolling where the district court “provided a misleading explanation of [petitioner’s] options to avoid a procedural default”); see also Ford v. Hubbard, 305 F.3d 875, 889 n. 14 (9th Cir.2002) (noting the “district court’s error in failing properly and fully to inform [petitioner] about his options with respect to the mixed petitions and in misleading him as to the legal effect of a dismissal of his petitions” justified equitable tolling). Because the tolling rendered petitioner’s claim timely, the court below erred by dismissing it. REVERSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217481/

MEMORANDUM * Appellant LaSonia Mansfield challenges the district court’s grant of summary judgment in favor of appellee City and County of San Francisco on her claims that she was terminated because of her race and in *814retaliation for complaints of continuing discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Because we find her arguments lack merit, we affirm the district court.1 Mansfield contends that she was the victim of a pattern and practice of discrimination and retaliatory treatment based on incidents that occurred when she began work at a city jail in November, 1994, and that the pattern continued up to and caused her termination. She argues that the district court erred in striking certain evidence that was found not to support a claim of discrimination or retaliation in earlier state-court proceedings against the same defendant. We review de novo. See In re Harmon, 250 F.3d 1240, 1245 (9th Cir.2001). The precise issue that was before the state courts was whether Mansfield suffered discrimination and retaliation, not whether her termination was illegal. However, we agree with the district court that Mansfield may not litigate her termination claim in federal court by relying on the same evidence that was presented in state court and was found insufficient to establish the employer’s alleged discriminatory intent. The district court did not err in denying Mansfield’s motion to strike. The differences between Mansfield’s proposed statement of facts and that of the City were not material. See generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review de novo the district court’s finding that Mansfield failed to establish a prima facie case of discrimination or retaliation under Title VII. As to her claim of retaliation, we agree that Mansfield failed to present evidence that she engaged in a protected activity from May 9, 1997, through August 30, 1999. As to her claim of discriminatory termination, Mansfield has failed to raise any inference of discrimination. Finally, we exercise our discretion and deny the City’s motion for damages and costs pursuant to Fed. R.App. P. 38. The judgment of the district court is AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . We also hold that although Mansfield and the city failed to file the proper forms consenting to the adjudication of this matter by a United States Magistrate Judge, the intent to consent was plain and unequivocal, and, accordingly, we have appellate jurisdiction. See Hajek v. Burlington N. R.R., 186 F.3d 1105, 1107-10 (9th Cir.1999).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217482/

MEMORANDUM** The government appeals the district court’s grant of an eleven-month downward departure in defendant Leonardo Martinez-Lorenzo’s sentence. We vacate the sentence and remand for resentencing. The district court has discretion in deciding to depart from the Sentencing Guidelines in certain circumstances. See Koon v. United States, 518 U.S. 81, 98-99, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). We conclude that the district court did not abuse its discretion in determining that the defendant’s personal rehabilitation from his prior offense and his low likelihood of reoffending justify a downward departure. The district court reached the range permitting a thirty-month sentence, however, by departing on both the criminal history axis and the offense level axis. The appropriate departure on the basis of likelihood of recidivism is only in the criminal history category, not the offense level. See United States v. Martin, 278 F.3d 988, 1003 (9th Cir.2002). Nothing in the district court’s analysis supports a departure on the offense level axis. We therefore must VACATE Martinez-Lorenzo’s sentence and REMAND for resentencing. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217483/

MEMORANDUM** James K. Boaz appeals the dismissal of his malicious prosecution suit against the defendant, arguing that the district court incorrectly applied Michigan law, rather than California law. California law applies in light of California’s interest in protecting its citizens, including Boaz, from malicious prosecution. See Engel v. CBS, Inc., 981 F.2d 1076, 1081 (9th Cir.1992). More*816over, Boaz did not have minimum contacts with Michigan, did not avail himself of Michigan law, and successfully challenged Michigan as the proper venue for the defendant’s underlying suit. REVERSED AND REMANDED. This disposition is not appropriate for publication and may not be cited to or used by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224360/

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE Plaintiff Debra Dornell (“Dornell”) sued her former employer Defendant City of San Mateo (“City”) for gender discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000 et seq. (“Title VII”), and California Fair Employment and Housing Act, Cal. Gov’t Code § 12940 et seq. (“FEHA”), as well as constructive termination in violation of public policy. The City moves to dismiss Dornell’s First Amended Complaint (“FAC”). See MTD (dkt.37). As explained below, the Court GRANTS the Motion in part and DENIES the Motion in part. I. BACKGROUND Dornell alleges as follows. In March 2006, Dornell began working for the City as a part-time fire inspector at the San Mateo Fire Department (“SMFD”). FAC (dkt.32) ¶ 7. When she was hired, Fire Marshal Michael Leong (“Leong”) and Deputy Fire Marshal Mo Dong (“Dong”) told her that she would conduct housing inspections for one year, after which she would train for inspections that would make her eligible for a full-time position. Id. ¶ 9. After one year of working for the City, Dornell asked her supervisors about a full-time position. Id. ¶ 11. Leong replied that she was ineligible for any full-time positions due to her lack of experience. Id. Yet, when she requested new assignments, Leong and Deputy Fire Marshal Bill Euchner (“Euchner”) ignored, ridiculed, or denied her requests. Id. She volunteered on multiple occasions to take on a high-rise inspection, but Euchner repeatedly gave such assignments to male employees. Id. ¶¶ 11-12. On multiple occasions, Dornell complained to SMFD Chief Daniel Belville (“Belville”) that she was being limited to residential inspections. Id. ¶ 13. Dornell believes that Belville then spoke with Leong and Euchner and instructed them to give her more advanced assignments. Id. In January 2010, Leong and Euchner told Dornell that she would begin conducting Commercial Inspection Program (“CIP”) inspections, in addition to residential inspections. Id. But, unlike her male counterparts doing CIP inspections, Leong and Euchner imposed on her a quota requiring her to bring in at least $35,000 to the SMFD. Id. ¶ 14. Dornell, who worked only two days per week, “knew it would be impossible ... to meet this new expectation.” Id. By June 2010, Dornell had failed to meet her quota. Id. ¶ 15. In July 2010, Euchner informed Dornell of “new polices” that did not apply to male inspectors. Id. ¶ 16. These policies required that she increase her CIP inspections, cut her hours, take a full hour lunch break, come in later than her usual 7:00 a.m. time, and submit additional paperwork for scheduling changes that male inspectors did not submit. Id. Dornell’s workload was the equivalent of three male inspectors, and when a male inspector noticed the unfair distribution of work and offered to help, Leong and Euchner refused to let him do so. Id. ¶ 17. That same month, Euchner did not adhere to company policy of providing a warning first, and instead issued Dornell a write-up on two trivial matters. Id. ¶ 18. The *903write-up stated that she improperly wore her employee uniform to a training with Fire Prevention Officers, even though that was standard practice, and that she “failed to follow the chain of command” when she asked Belville, instead of Euchner, to write a letter as part of her State certification process. Id.1 In March 2010, Dornell met with Bel-ville, who was surprised to learn that Dor-nell was still required to respond to housing complaints. Id. ¶ 19. Dornell, fearing retaliation, asked Belville not to intervene again. Id. That month, Dornell sought medical attention for severe stress, after which her doctor recommended that she take a leave of absence from work until the end of the month. Id. ¶ 20. In August 2010, Dornell emailed Belville to inform him that her discriminatory treatment had worsened. Id. ¶ 22. In response, Belville convened a meeting "with Leong, Euchner, and a Human Relations Department employee, and instructed them to treat Dor-nell, also present at the meeting, fairly. Id. In a follow up meeting in October 2010, Belville again directed Leong to provide Dornell with the requisite field training. Id. ¶ 23. Nevertheless, Leong did not answer Dornell’s questions and on one occasion did not show up to accompany her to a scheduled training inspection. Id. ¶ 24. In early 2012, Euchner insinuated that Dornell should retire because her husband was retiring. Id. ¶ 25. And, in January 2012, Leong told Dornell a story about him once hitting a man on a head with a baseball bat, which she found threatening. Id. ¶ 26. Before Belville’s retirement in June 2012, he told Dornell that he “had her back” and would make the new Chief aware of her situation. Id. ¶ 27. At that point, Dornell realized that the alleged discrimination would persist. Id. Following her psychologist’s advice, on May 9, 2012, Dornell took leave from work due to stress. Id. ¶ 28. On September 18, 2012, Dornell sent a letter of resignation to the City. Id. ¶ 29. During her six and a half years working for the City, she was the only female to hold her position and she received favorable reviews from customer surveys and Belville. Id. ¶¶ 7-8. On June 14, 2012, after taking leave but before resigning, Dornell filed a charge for gender discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 28. On June 22, 2012, Dornell received a right-to-sue letter from the Department of Fair Employment and Housing (“DFEH”). Id. ¶45. On October 31, 2012, the EEOC issued Dor-nell a right-to-sue letter. Id. ¶ 34. On November 29, 2012, Dornell filed a Complaint with this Court alleging only federal claims: gender discrimination, harassment, and retaliation in violation of Title VII. Compl. (dkt.l) at 10-11. On February 27, 2013, the parties stipulated that Dornell is not bringing a harassment claim. Stipulation Order (dkt.15). On August 28, 2013, Dornell filed a supplemental claim with the DFEH, asserting that she believed she was “constructively terminated.” FAC ¶ 45. That same day, the DFEH issued her a right-to-sue letter. Id. On August 30, 2013, Dornell filed her FAC, which set forth the following causes of action: (1) gender discrimination and harassment in violation of Title VII; (2) retaliation in violation of Title VII; (3) gender discrimination and harassment in violation of FEHA;2 (4) retaliation in violation of FEHA; and (5) *904constructive termination and discrimination in violation of public policy. Id. ¶¶ 30-57. The City now moves to dismiss. See MTD.3 II. LEGAL STANDARD A motion to dismiss under Rule 12(b)(1) challenges the court’s subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Federal courts are presumed to lack subject matter jurisdiction, and the plaintiff bears the burden of establishing that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The Court may look beyond the complaint to evaluate subject matter jurisdiction. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000) (citing Gemtel Corp. v. Cmty. Redev. Agency, 23 F.3d 1542, 1544 (9th Cir.1994)). A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir.2003) (citing Fed.R.Civ.P. 12(b)(6)). Dismissal is proper if a complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive dismissal, a complaint must contain factual allegations sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). When determining plausibility, allegations pertaining to material facts are accepted as true for purposes of the motion and construed in the light most favorable to the nonmoving party. Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.1998). If dismissal is ordered, the plaintiff should be granted leave to amend unless it is clear that the claims could not be saved by amendment. Swartz v. KPMG LLP, 476 F.3d 756, 760 (9th Cir.2007). III. DISCUSSION The City moves to dismiss Dornell’s FAC on three grounds: (A) the parties already stipulated that Dornell is not bringing a claim for harassment; (B) a common law claim for constructive termination in violation of public policy cannot be brought against a public entity; and (C) the Court does not have jurisdiction over the claims because Dornell failed to properly exhaust her Title VII claims and because she did not timely file her FEHA claims. See generally MTD. A. Dornell Is Not Bringing Claims For Harassment The City first contends that Dornell already stipulated that she is not bringing claims for harassment under Title VII. MTD at 1. Dornell concedes this point, stating that she “did not intend to assert a claim for gender harassment in violation of federal or state law.” Opp’n (dkt.39) at 1, 7. The Court therefore DISMISSES with prejudice the first and third causes of action to the extent that they allege harassment. B. A Statutory Claim For Constructive Termination In Violation Of Public Policy Cannot Be Brought Against A Public Entity The City next argues that Dornell’s fifth claim for constructive discharge in *905violation of public policy cannot be asserted against a public entity. MTD at 7 (citing Cal. Gov’t Code § 815). Dornell agrees, but asks the Court to grant her leave to amend to assert a constitutionally-based claim for constructive termination. Opp’n at 11-12 (citing Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876, 899, 80 Cal.Rptr.3d 690, 188 P.3d 629 (2008) (“The Legislative Committee Comment to section 815 states: ‘This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution’ ”)). Although the City points out that Dor-nell’s Opposition “has not indicated what constitutional violation she is going to assert, what facts in her complaint support the same, and whether such alleged violation is being brought under state or federal law,” see Reply (dkt.43) at 1, amendment is not necessarily futile. In fact, Dornell’s FAC explicitly states that her fifth cause of action is a violation of not only common law but also her constitutional rights under California Constitution, Article 1, section 8, which prohibits disqualification from entering or pursuing a business on the basis of sex. FAC ¶ 54. Because this constitutional provision could support a viable claim for constructive termination in violation of public policy, the Court DISMISSES the fifth cause of action with leave to amend. C. The Court Has Jurisdiction Over Dornell’s Title YII Claims Only The City next avers that Dornell did not properly exhaust her administrative remedies for her Title VII claims and that, to the extent that she did exhaust her FEHA claims, they were untimely. MTD at 7-10. 1. Exhaustion Generally A claimant must exhaust his or her administrative remedies before filing a discrimination or retaliation case in federal court. Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir.2001). To properly exhaust these claims, a claimant must first file the charge with either the EEOC (enforcing Title VII) or the DFEH (enforcing FEHA). A claimant must file a charge with the EEOC within 180 days of the alleged violation, 42 U.S.C. § 2000e-5(e)(1), or else with the DFEH within one year of the alleged unlawful conduct, Cal. Gov’t Code § 12960(d).4 When Title VII and FEHA claims overlap, under the worksharing agreement, the EEOC and DFEH are each the agent of the other for purposes of receiving charges, and thus a filing with one agency is considered to be constructively filed with the other. See, e.g., EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 585 (9th Cir.2000) (“Constructive filing is made possible by ‘worksharing agreements,’ which designate the EEOC and the state agency each other’s agents for the purpose of receiving charges.”); Paige v. State of Cal., 102 F.3d 1035, 1041 (9th Cir.1996) (“[T]he filing of a charge with one agency is deemed to be a filing with both.”). A claimant cannot file a lawsuit until receiving a right-to-sue notice from the agency that specifically enforces those laws. See Alberti v. City & County of S.F. Sheriff’s Dept., 32 F.Supp.2d 1164, 1174 (N.D.Cal. Nov. 25, 1998) (“An EEOC right-to-sue letter does not satisfy the jurisdictional requirement of exhaustion of remedies as to FEHA claims.”); see also *906Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718, 1726, 35 Cal.Rptr.2d 181 (1994) (“an EEOC right-to-sue notice satisfies the requirement of exhaustion of administrative remedies only for purposes of an action based on Title VII”). If a claimant receives a right-to-sue notice, he or she has one year from receipt of a DFEH letter to file FEHA claims, Cal. Gov’t Code § 12965(b), but only ninety days from receipt of an EEOC letter to file Title VII claims, 42 U.S.C. § 2000e-5(f)(1). 2. Dornell’s Exhaustion Generally Here, the allegations that form the basis of Dornell’s first four causes of action — gender discrimination and retaliation in violation of state and federal law— all relate to incidents before May 9, 2012, the date on which Dornell took leave from work. See FAC ¶¶30-5 l.5 The FAC cites the following encounters that took place throughout Dornell’s time working for the City, in support of gender discrimination and retaliation claims, respectively: (1) “[The City] singled Dornell out because of her gender and treated her differently than her similar situated male counterparts.” FAC ¶¶ 31, 41; (2) “Dornell engaged in protected activity ... by complaining to Chief Belville about Leong and Euchner’s discriminatory treatment of her. Leong and Euchner then retaliated against Dornell for her complaint by imposing on her a quota to which no male fire inspector was held, and writing her up for trivial alleged violations. When Dornell sought further help from Human Resources and Chief Belville, Leong and Euchner retaliated against her again by ignoring her and further obstructing her ability to work.” Id. ¶¶ 36, 47. Based on these allegations, constructive discharge is not part of Dornell’s first four causes of action, and the last day she was at the SMFD being discriminated against was when she took a leave of absence on May 9, 2012.6 Accordingly, Dornell had 180 days from May 9, 2012, or until November 5, 2012, to file a charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(l). Dornell timely filed her EEOC charge on June 14, 2012, FAC ¶28, and under the worksharing agreement it was deemed to be filed with the DFEH as well, see Dinu-ba Med. Clinic, 222 F.3d at 585. Because Dornell received a right-to-sue notice from the DFEH on June 22, 2012, FAC ¶ 28, she had one year, or until June 22, 2013, to bring her FEHA claims, see Cal. Gov’t Code § 12965(b). Dornell did not bring any FEHA claims until August 30, 2013, when she filed her FAC. See FAC ¶¶ 40-51. Because the EEOC issued Dornell a right-to-sue letter on October 31, 2012, id. ¶34, Dornell had ninety days, or until January 29, 2013, to bring her Title VII claims, see 42 U.S.C. § 2000e-5(f)(l). Her original Complaint alleging Title VII *907claims was timely filed on November 29, 2012. See Compl. 3. DornelFs Title VII Claims Dornell’s first and second causes of action allege gender discrimination and retaliation under Title VII. FAC ¶¶ 30-39. The City challenges these claims, arguing that they are inextricably linked to her alleged constructive termination. MTD at 9-10. First, the City avers that Dornell did not exhaust administrative remedies because she filed her EEOC claim before she resigned. Id. at 9. Second, the City argues that even if this Court construes Dornell’s pre-resignation EEOC charge as providing for a right-to-sue action, it was untimely; i.e., Dornell’s FAC missed the ninety-day window to file a claim. Id. at 10 (citing 42 U.S.C. § 2000e-5(f)(l)). Both of the City’s arguments fail. First, the City contends that Dornell’s Title VII allegations needed to be re-filed with the EEOC after she resigned. Id. at 9. The City points to language in the FAC’s Introduction section alleging that Dornell “was constructively discharged when she resigned.” Id. The City explains that, because the FAC’s first and second causes of action re-allege and incorporate all preceding paragraphs, those causes of action also allege constructive discharge, thus requiring that she file another EEOC charge “as to her constructive discharge claim under Title VII.” Id. But Dornell’s Title VII claims do not incorporate a constructive discharge claim. The allegations supporting her Title VII claims remained the same in both the original Complaint and the FAC. Compare Compl. ¶¶ 29, 34, with FAC ¶¶ 31, 36. Dornell’s Title VII claims allege that she was treated differently than similarly situated male counterparts, given quotas unique to her as a woman, and retaliated against for notifying Belville of her situation. Id. Those events were completed by the time she took a leave of absence from work on May 9, 2012 and filed her EEOC charge on June 14, 2012. Id. ¶ 28. Consequently, Domell’s first and second causes of action were properly exhausted when she filed with the EEOC on June 14, 2012.7 Second, the City argues that even if Domell’s June 14, 2012 pre-resignation EEOC charge is sufficient for the purposes of exhausting her Title VII claims, the lawsuit was nonetheless untimely because her August '30, 2013 FAC was filed more than ninety days after she received her October 31, 2012 EEOC right-to-sue letter. MTD at 10 (citing 42 U.S.C. § 2000e-5(f)(l)). But because the FAC’s Title VII claims repeat the allegations in her original Complaint verbatim, compare Compl. ¶¶ 29, 34, with FAC ¶¶ 31, 36, the claims relate back to her original Complaint for purposes of the statute of limitations. See Hebner v. McGrath, 543 F.3d 1133, 1137-38 (9th Cir.2008) (“amendments made after the statute of limitations has ran may ‘relate back’ to the date of the original pleading when the amended pleading arises ‘out of the conduct, transaction, or occurrence set out ... in the original pleading’ ” (quoting Fed.R.Civ.P. 15(c)(1)). *908Consequently, the filing date of Dornell’s original Complaint is the operative pleading for purposes of the statute of limitations. Dornell received her right-to-sue letter from the EEOC on October 31, 2012, FAC ¶ 34, and had ninety days, or until January 29, 2013, to file her Title VII claims with this Court, see 42 U.S.C. § 2000e-5(f)(l). She filed her original Complaint alleging Title VII claims on November 29, 2012, see Compl., and it was therefore timely. The Court thus has jurisdiction over Dornell’s Title VII claims and DENIES the City’s Motion with respect to the first and second causes of action. 4. Dornell’s FEHA Claims Dornell’s third and fourth causes of action allege gender discrimination and retaliation under FEHA. FAC ¶¶ 40-51. The City contends that Dornell’s FEHA claims are time barred because she did not file those claims with this Court within one year of receiving her DFEH right-to-sue notice on June 22, 2012. MTD at 7. In addition, the City argues that she cannot “restart the clock” by filing a second dupli-cative administrative charge with the DFEH on August 28, 2012. Id. at 2, 8. Dornell responds that her August 28, 2012 DFEH administrative complaint does not simply repeat her previously filed EEOC charge; instead, it “recited that she was forced to resign.” Opp’n at 10 (“her first charge of discrimination with DFEH on June 14, 2012 ... did not claim that she had been forced to resign by the [City’s] continuing course of discriminatory and retaliatory conduct”). Importantly, Dornell’s third and fourth claims alleging FEHA violations do not incorporate constructive discharge. See FAC ¶¶ 41, 47. The allegations supporting Dornell’s gender discrimination and retaliation claims under FEHA mirror those of her Title VII claims verbatim— both only describe discrimination at SMFD. Compare id. ¶¶ 31, 36, with id. ¶¶ 41, 47. Thus, like Dornell’s Title VII claims, her FEHA claims are limited to acts that occurred before she took a leave of absence from work on May 9, 2012. See Part III.C.3, supra. Accordingly, Dornell cannot rely on the filing date of her August 28, 2012 supplemental DFEH charge because that charge adds only a claim of “constructive discharge,” which is not at issue here. See Dornell RJN, Ex. B. Instead, Dornell’s June 14, 2012 EEOC charge, FAC ¶28, which the DFEH constructively received under the worksharing agreement, see Dinuba Med. Clinic, 222 F.3d at 585, is the relevant administrative filing for the purposes of her third and fourth causes of action. The DFEH issued a right-to-sue notice on June 22, 2012, FAC ¶ 28, and Dornell had one year from that date, or until June 22, 2013, to file her FEHA claims, see Cal. Gov’t Code § 12965(d). Because her FAC, filed on August 30, 2013, was the first time she brought FEHA claims, see FAC ¶¶ 40-51, the Court does not have jurisdiction over those claims. The Court therefore DISMISSES Dornell’s third and fourth causes of action. IV. CONCLUSION For the foregoing reasons, the Court: (1) GRANTS the Motion without leave to amend to the extent that the first and third causes of action allege acts of harassment; (2) GRANTS the Motion with respect to the fifth cause of action alleging gender discrimination on the basis of constructive discharge in violation of public policy, with leave to amend; (3) DENIES the Motion with respect to the first and second causes of *909action alleging violations under Title VII; and (4) GRANTS the Motion without leave to amend with respect to the third and fourth causes of action alleging violations under FEHA. IT IS SO ORDERED. . On her own initiative, Dornell took classes and obtained a Fire Prevention Officer and Public Education Officer certificate. Id. ¶ 10. . A typo references Cal. Gov't Code § 19240 in place of Cal. Gov’t Code § 12940. Id. ¶ 40. . The parties request that the Court take judicial notice of the EEOC charge, initial Complaint, parties’ stipulation, DFEH's second right-to-sue letter, and DFEH complaint. See generally City Request for Judicial Notice ("RJN”) (dkt.36); Dornell's RJN (dkt.40). Because these are public records whose accuracy is not in dispute, judicial notice is appropriate. See Fed.R.Evid. 201(b)-(d); see also Anderson v. Holder, 673 F.3d 1089, 1094 n. 1 (9th Cir.2012) (“[A court] may take judicial notice of records and reports of administrative bodies.” (internal quotation marks omitted)). . If the claimant elects to first file a complaint with a state or local agency like the DFEH, the EEOC charge must be filed within the earlier of 300 days after the alleged unlawful employment practice or thirty days after receiving notice that the state or local agency has terminated proceedings. 42 U.S.C. § 2000e-5(e)(l). . Conduct prior to the 300-day mark is actionable if the plaintiff can show that the acts are part of a "continuing violation.” Williams v. Owens-Ill., Inc., 665 F.2d 918, 924 (9th Cir.1982) (applying to Title VII claims); Richards v. CH2M Hill, Inc., 26 Cal.4th 798, 823, 111 Cal.Rptr.2d 87, 29 P.3d 175 (2001) (applying to FEHA claims). Under the continuing violation doctrine, "a systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period.” Williams, 665 F.2d at 924. . Unlike Dornell's first four causes of action, her fifth cause of action explicitly alleges "constructive termination” as a component of her discrimination claim. Id. ¶ 54. . Even if Dornell’s Title VII claims did include constructive discharge, a lawsuit “may encompass any discrimination like or reasonably related to the allegations of the EEOC charge.” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir.2002) (internal quotation marks omitted). Subject matter jurisdiction extends to allegations "reasonably expected to grow out of the charge of discrimination,” including constructive termination. Id.-, see also Couveau v. Am. Airlines, Inc., 218 F.3d 1078, 1082 (9th Cir.2000) (holding that the plaintiffs wrongful termination was “unquestionably ‘like or reasonably related to’ ” the allegations of discrimination made in her earlier EEOC charge and thus she did not fail to exhaust her administrative remedies).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217484/

MEMORANDUM** Luis Rey Garcia appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. § 2253 and we affirm. We review a district court’s denial of a petition for a writ of habeas corpus de novo. Wade v. Terhune, 202 F.3d 1190, 1194 (9th Cir.2000). Garcia is not eligible for INA § 212(c), 8 U.S.C. § 1182(c), relief because Garcia did not plead guilty. Garcia proceeded to trial and was convicted by a jury. See Amendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir.2002) (holding that § 212(c) relief under St. Cyr is not available to a defendant convicted by a jury) (citing INS v. St. Cyr, 533 U.S. 289, 321-22, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). The fact that Garcia did not receive a plea bargain offer does not alter our application of Amendariz-Montoya. See United States v. Estrada-Plata, 57 F.3d 757, 760 (9th Cir.1995) (explaining the decision to offer a plea bargain is a matter of prosecutorial discretion). Nor is a motion to reduce a conviction from murder to voluntary manslaughter the functional equivalent of a plea bargain. Because Garcia had already been convicted by a jury for second degree murder, Garcia stood only to gain from his motion. See Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir.2002) (“A plea bargain is a formal exchange in which each side consensually gives, and gets, something of value.”). Garcia waived his INA § 212(h), 8 U.S.C. § 1182(h), equal protection challenge for purposes of appellate review by *817failing to raise it before the district court. See Arizona v. Components Inc., 66 F.3d 213, 217 (9th Cir.1995). The judgment of the district court is AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217485/

MEMORANDUM** Juan Jose Barrera alleges that his guilty plea should be set aside as involuntary due to the district court’s denial of his request for substitution of counsel. Although Barrera waived his right to appeal, “[wjaivers of appeal must stand or fall with the agreement of which they are a part.” *818United States v. Pena, 814 F.3d 1152, 1154 n. 1 (9th Cir.2003). Thus, we have jurisdiction to review the voluntariness of Barrera’s plea.1 Because the parties are familiar with the facts, we discuss them only insofar as necessary to reach our decision. The voluntariness of a guilty plea is reviewed de novo. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986). Denial of effective assistance of counsel may suffice to render a guilty plea involuntary. Id. at 865-66. Barrera alleges that there was a complete breakdown in his relationship with his attorney, and so the district court abused its discretion in refusing to allow substitution of counsel. See United States v. Corona-Garcia, 210 F.3d 973, 976 (9th Cir.2000). We consider three factors in evaluating the propriety of the district court’s refusal to substitute counsel: 1) the extent of the conflict; 2) the adequacy of the inquiry; and 3) the timeliness of the motion. Id. Here, the district court’s inquiry was adequate. Additionally, the relationship between Barrera and his attorney did not evince the severity of conflict which has been the hallmark of our jurisprudence regarding substitution of counsel. See United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir.2001). Although Barrera established that he was displeased with his attorney’s trial strategy and did not fully trust her, he and his attorney were able to communicate. Moreover, because his motion to substitute counsel was untimely, the district court had “broad latitude to deny a motion for substitution of counsel on the eve of trial when the request would require a continuance.” Id. at 1003. Additionally, the transcript of the change of plea hearing demonstrates that the district court specifically inquired into Barrera’s willingness to plead guilty in light of his earlier concerns regarding the adequacy of his representation. The transcript also shows that Barrera consulted with his attorney at a number of points during the change of plea hearing, as well as asking questions of the judge at one point. Because the district court did not abuse its discretion in denying the motion for substitution of counsel, and the plea colloquy itself supports the district court’s determination that the plea was voluntary and intelligent, the judgment of the district court is AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . It is axiomatic that federal courts always have jurisdiction to determine their jurisdiction. United States v. Reyes-Platero, 224 F.3d 1112, 1114 (9th Cir.2000). In order to make that determination here, it is necessary to address the merits. The Supreme Court has held in a factually similar situation that because it was necessary to address the merits in order to determine whether jurisdiction was proper, jurisdiction was present and dismissal unnecessary. United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 2454, 153 L.Ed.2d 586 (2002).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217486/

ORDER Judges Reinhardt and Hawkins have voted to grant the petition for rehearing and to deny the petition for rehearing en banc. Judge Rawlinson votes to deny the petition for rehearing and for rehearing en banc. The memorandum disposition filed on October 12, 2001, in this case is WITHDRAWN and superceded by a new disposition filed by the panel concurrently herewith.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217487/

MEMORANDUM** Robert Randall Boswell appeals from his judgment and sentence for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846. Boswell claims he was denied his Sixth Amendment right to counsel when the government based its refusal to move for a downward departure under U.S.S.G. § 5K1.1 on statements Boswell made under oath when he was effectively unrepresented by counsel. We have jurisdiction under 28 U.S.C. § 1291. Because Boswell’s claim is entirely independent of his factual guilt, he did not waive it when he subsequently entered an unconditional guilty plea. See United States v. Garcia-Valenzuela, 232 F.3d 1003, 1006-07 (9th Cir.2000). We reject Boswell’s claim. This is not a case where counsel took an “adversary and antagonistic” stance and thereby rendered ineffective representation. See United States v. Adelzo-Gonzalez, 268 F.3d 772, 779-80 (9th Cir.2001); United States v. Wadsworth, 830 F.2d 1500, 1510-11 (9th Cir.1987). Rather, Boswell was effectively represented when the court questioned him under oath on January 22, 2002. His attorney was not relieved of his duties as counsel until after Boswell had made the statements in issue. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217488/

MEMORANDUM*** Petitioner contends that the BIA abused its discretion by not exercising its sua *820sponte authority under 8 C.F.R. § 3.2(a) to reopen the deportation proceeding. Because we do not have jurisdiction to review the BIA’s refusal to reopen sua sponte, see Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); Abassi v. INS, 305 F.3d 1028, 1033 (9th Cir.2002), the petition is DISMISSED. This disposition is not appropriate for publication and may not be cited to or by the *820courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217489/

MEMORANDUM** California state prisoner Mitchell Moore appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Reviewing de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), we reverse and remand in part and affirm in part. Moore contends that the district court erred when it dismissed his first petition as completely unexhausted. Moore is correct, because he raised a federal due process claim concerning “bad acts” evidence on direct appeal and then in his petition for review by the California Supreme Court. He argued that not only was the evidence improperly admitted under state law, but it also “was of such quality as to prevent a fair trial,” and he cited Jammal v. Van de Kamp, 926 F.2d 918, 920 (1991) (stating that the improper admission of evidence violates due process when it renders the trial fundamentally unfair). Thus, Moore’s first petition was mixed, and he should have been given the opportunity to abandon his unexhausted claims and proceed on the exhausted one. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir.2000). Because Moore was not given this opportunity, his second petition relates back to the date the first petition was filed, in so far as the second petition raises claims that were raised in his first petition. See Ford v. Hubbard, 305 F.3d 875, 887-89 (9th Cir.2002).1 Moore’s second petition is therefore timely as to four claims: (1) appellate counsel’s ineffectiveness; (2) Sixth Amendment claim regarding reasonable doubt standard; (3) improper delegation of sentencing authority; and (4) “bad acts” evidence. Moore’s second petition also raises four new claims. Moore contends that the petition is timely as to these claims because of equitable tolling. However, he is not entitled to equitable tolling because he has not alleged extraordinary circumstances beyond his control that made it impossible for him to file a petition on time. See Miranda v. Castro, 292 F.3d 1063, 1066-67 (9th Cir.), cert. denied, — U.S. -, 123 S.Ct. 496, 154 L.Ed.2d 399 (2002) (stating that ordinary negligence and legal mistakes do not give rise to equitable tolling). For these reasons, we reverse the district court’s dismissal as to the four claims raised in both the first and second petitions and remand for further proceedings on these claims. We affirm the district court’s dismissal as to the four claims raised for the first time in the second petition. *822REVERSED AND REMANDED in part; AFFIRMED in part. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. . This rule extends to claims that were not exhausted in the first petition, because the court could have stayed an amended petition raising only exhausted claims and then allowed relation back for the other claims after they were exhausted. Ford v. Hubbard, 305 F.3d 875, 889 (9th Cir.2002).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217490/

MEMORANDUM** Marciano Pangilinan Dimacali, a native and citizen of the Philippines, petitions this court to reverse the decision of the Board of Immigration Appeals (“BIA”) that he is ineligible for asylum, 8 U.S.C. § 1101(a)(42)(A), and for withholding of deportation. We must uphold the BIA’s decision if it is supported by substantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478, 479, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The evidence does not compel the conclusion that Dimacali suffered persecution or has a well founded fear of persecution because after his abduction, he was able to live safely in Manila for a year and his wife and children were able to continue residing safely in Baguio City. Cf. Prasad v. INS, 47 F.3d 336, 339-40 (1995). Similarly, the BIA reasonably determined that Dimacali had not established an entitlement to withholding of deportation pursuant to 8 U.S.C. § 1231(b)(3)(A). See Navas v. INS, 217 F.3d 646, 655 (9th Cir.2000). PETITION DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217544/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Dora P. Pettiford appeals the jury verdict in favor of her former employer, the North Carolina Department of Health and Human Resources, in her civil action in which she alleged retaliatory treatment based upon her complaints of racial discrimination. We have reviewed the record and find no reversible error. In reviewing a jury verdict, we do not weigh evidence or review witness credibility. See United States v. Saunders, 886 F.2d 56, 60 (4th Cir.1989). If, when taken in the fight most favorable to the plaintiff, there is substantial evidence to support the verdict, it must be sustained. Vodrey v. Golden, 864 F.2d 28, 30 n. 4 (4th Cir.1988). Because we conclude substantial evidence supported the jury verdict, we affirm. 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224361/

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS THELTON E. HENDERSON, JUDGE, UNITED STATES DISTRICT COURT Defendants’ motion to dismiss came before the Court on November 4, 2018. Having considered the parties’ arguments and the papers submitted, the Court now DENIES Defendants’ motion for the reasons set forth below. BACKGROUND Defendant Dignity Health (“Dignity”)1 is a non-profit healthcare provider with facilities in sixteen states. Compl. ¶ 1. From 1986 to 2012, Plaintiff Starla Rollins (“Rollins”) was employed as a billing coordinator at a Dignity-operated hospital. Id. ¶ 18. Based on her employment, Rollins will be eligible for pension benefits from Dignity’s benefits plan (the “Plan”) when she reaches retirement age. Id. Rollins alleges that Dignity’s Plan violates the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. Dignity contends that its Plan need not comply with ERISA because it is a “church plan,” which the statute explicitly exempts from its requirements. Rollins maintains that the Plan does not qualify as a church plan as defined by ERISA and in the alternative, if the Plan is exempt, such an exemption violates the Establishment Clause of the First Amendment and is therefore void. Id. ¶¶ 162-164. On behalf of herself and others similarly situated, Rollins seeks declaratory relief *911that Dignity’s Plan is not a church plan exempt from ERISA, as well as injunctive relief requiring Dignity to conform the Plan to ERISA’s requirements. She also requests that Dignity make Plan participants whole for any losses they suffered as a result of its ERISA non-compliance and that Dignity pay any other statutory penalties and fees. Dignity moves to dismiss, contending that the Plan is a church plan, exempt from ERISA as a matter of law, and therefore, that Rollins’s allegations regarding ERISA violations fail to state a claim for relief. LEGAL STANDARD Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) when a complaint’s allegations fail “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In ruling on a motion to dismiss, a court must “accept all material allegations of fact as true and construe the complaint in a light most favorable to the nonmoving party.” Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir.2007). To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is hable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). DISCUSSION Enacted in 1974, ERISA was designed to ensure that employees actually receive the benefits they are promised by establishing, among other requirements, minimum funding standards and disclosure obligations for employee benefits plans. Pub. L. No. 94-406, 88 Stat. 829 (1974), codified at 29 U.S.C. §§ 1001 et seq. ERISA explicitly exempted “church plans” from its requirements and explained “the term ‘church plan’ means [ ] a plan established and maintained for its employees by a church or by a convention or association of churches.” 29 U.S.C. § 1002(33)(A) (1976). The statute permitted a church plan to also cover employees of church agencies, but the permission was to sunset in 1982. Id. In 1980, ERISA was amended to eliminate the 1982 deadline and to include other clarifications. The relevant statutory section, 29 U.S.C. § 1002(33), now reads as follows: (A) The term “church plan” means a plan established and maintained (to the extent required in clause (ii) of subpara-graph (B)) for its employees (or then-beneficiaries) by a church or by a convention or association of churches which is exempt from tax under section 501 of title 26. (B) The term “church plan” does not include a plan— (i) which is established and maintained primarily for the benefit of employees (or their beneficiaries) of such church or convention or association of churches who are employed in connection with one or more unrelated trades or businesses (within the meaning of section 513 of title 26), or (ii) if less than substantially all of the individuals included in the plan are individuals described in subparagraph (A) or in clause (ii) of subparagraph (C) (or their beneficiaries). (C) For purposes of this paragraph (i) A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whether a civil law corporation or other*912■wise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches. (ii) The term employee of a church or a convention or association of churches includes— (I) a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry, regardless of the source of his compensation; (II) an employee of an organization, whether a civil law corporation or otherwise, which is exempt from tax under section 501 of Title 26 and which is controlled by or associated with a church or a convention or association of churches; ... 29 U.S.C. § 1002(33). According to Rollins, despite the language in section C(i), which permits church-associated organizations to maintain church plans, section A still demands that only a church may establish a church plan. Although Rollins also disputes whether Dignity is a church-associated organization under section C(i), the Court first addresses, and finds dispositive, her argument that Dignity is not a church, and as such cannot establish a church plan, and therefore that Dignity’s Plan is not a “church plan” under the statute. Dignity does not contend that it is a church or that its Plan was started by a church. Rather, relying primarily on section C, it argues that the ERISA statute allows a plan to qualify as a church plan regardless of what entity established the plan, so long as the plan is maintained by a tax-exempt non-profit entity “controlled by or associated with a church or a convention or association of churches.” 29 U.S.C. § 1002(33)(C)(i). Because it is a tax-exempt entity associated with the Roman Catholic Church, and its Plan is maintained by a subcommittee associated with the Roman Catholic Church, Dignity argues that, as a matter of law, its Plan qualifies as a church plan.2 Thus, the primary question before the Court is whether the ERISA statute requires a church plan to have been established by a church, or whether the statute merely requires that a church plan be maintained by a tax-exempt organization controlled by or associated with a church. At the outset, the Court notes that although Dignity argues that “three decades of agency interpretations” — specifically a series of Internal Revenue Service (“IRS”) private letter rulings (“PLRs”) — support its position that to *913qualify as a church plan, a plan need only be maintained by a tax-exempt entity associated with a church, the Court declines to defer to the IRS’s interpretation of the ERISA statute here. The IRS’s private letter rulings apply only to the persons or entities who request them and are not entitled to judicial deference.3 The Court instead conducts its own independent analysis of the statute. 26 C.F.R. § 301.6110-7; 26 U.S.C. § 6110 (“a written determination may not be used or cited as precedent”); see also Bankers Life & Cas. Co. v. United States, 142 F.3d 973, 978 (7th Cir.1998) (“Neither the courts nor the IRS may rely on letter rulings as precedent.”). When interpreting a federal statute, a court’s goal is to “aseertain[ ] the intent of Congress” and “giv[e] effect to its legislative will.” In re Ariz. Appetito’s Stores, Inc., 893 F.2d 216, 219 (9th Cir.1990). “The preeminent canon of statutory interpretation requires us to presume that the legislature says in a statute what it means and means in a statute what it says there.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (internal quotation marks omitted). In construing the provisions of a statute, a court should thus “first look to the language of the statute to determine whether it has a plain meaning.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009). To the extent a statute is not “plain,” a court may look to the traditional canons of statutory interpretation and to the statute’s legislative history. Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 830-31 (9th Cir.1996). The Court’s inquiry into whether a plan qualifies as a church plan begins with the text of section A, which, again, states: The term “church plan” means a plan established and maintained (to the extent required in clause (ii) of subpara-graph (B)) for its employees (or their beneficiaries) by a church or by a convention or association of churches which is exempt from tax under section 501 of Title 26. 29 U.S.C. § 1002(33)(A) (emphasis added). A straightforward reading of this section is that a church plan “means,” and therefore by definition, must be “a plan established ... by a church or convention or association of churches.” Complicating the inquiry, however, is section C, which states: (i) A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or *914both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches. (ii) The term employee of a church or a convention or association of churches includes— (I) a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry, regardless of the source of his compensation; (II) an employee of an organization, whether a civil law corporation or otherwise, which is exempt from tax under section 501 of Title 26 and which is controlled by or associated with a church or a convention or association of churches; ... 29 U.S.C. § 1002(33)(C) (emphasis added). Dignity contends that section C(i) includes within the category of plans “established and maintained ... by a church” — “a plan maintained by a [church-associated] organization;” therefore, any plan that is maintained by a church-associated organization is a church plan, regardless of whether the plan was established by a church or convention or association of churches. Mot. at 17-18. Although Dignity’s proposed reading of the statute is not unreasonable on its face, it violates long-held principles of statutory construction and therefore cannot be the meaning of the statute. To begin, Dignity’s reading violates a “cardinal principle of statutory construction ... to give effect, if possible, to every clause and word of a statute rather than to emasculate an entire section.” Bennett v. Spear, 520 U.S. 154, 173, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citations and quotation marks omitted). If, as Dignity argues, all that is required for a plan to qualify as a church plan is that it meet section C’s requirement that it be maintained by a church-associated organization, then there would be no purpose for section A, which defines a church plan as one established and maintained by a church. In 1980, Congress amended the church plan exemption portion of the statute to add the language in section C relied upon by Dignity. At the same time, Congress chose to retain the language in section A, that the “[t]he term ‘church plan’ means a plan established and maintained by a church.” To completely ignore the language of section A — language that Congress actively retained — violates the principle to give effect to every clause and word and the related principle “not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” In re HP Inkjet Printer Litig., 716 F.3d 1173, 1184 (9th Cir.2013). Dignity’s reading not only renders section A meaningless, but also disregards the limiting language of section C(i), that to maintain a church plan, an organization must not only be associated with the church, but it must have as its “principal purpose or function ... the administration or funding of a [benefits] plan or program ... for the employees of a church.” Dignity is a healthcare organization; its mission is the provision of healthcare, not the administration of a benefits plan. While its Retirement Plans Sub-Committee’s purpose is plan administration, the statute does not say that the organization may have a subcommittee who deals with plan administration. Rather, the statute dictates that organization itself must have benefits plan administration as its “principal purpose,” which Dignity plainly does not. Furthermore, Dignity’s suggested interpretation would reflect a perfect example of an exception swallowing the rule. While the amended section C(i) does permit church plans to include plans main*915tained by some church-associated organizations, for such a specific exception to govern what a church plan is, would completely vitiate the original rule embodied in section A, defining a church plan as a plan established and maintained by a church. The Court cannot agree with the notion that Congress could have intended the narrow permission in section C(i) to — by implication — entirely consume the rule it clearly stated in section A. The canon expressio unius est ex-clusio alterius also militates against Dignity’s interpretation of the statute. The canon instructs that “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (citation omitted). Based on this canon, we must presume that Congress acted intentionally in using the words “establish and maintain” in section A as something only a church can do, as opposed to the use of only the word “maintain” in section C(i) to refer to the capabilities of church-associated organizations. To assert that any church-associated organization can establish its own church plan fails to appreciate the distinction drawn by Congress through its purposeful word choice. Moreover, the use of the word “maintain by an organization” in section C(i) mirrors the word “maintain” in the preceding clause, “a plan established and maintained by a church.” This repetition of the word “maintain” without the word “establish” suggests that only the category of “who may maintain a church plan” is being expanded upon in section C(i), not the category of “who may establish a church plan.” At oral argument, Dignity also relied on section C(ii), which allows employees of church-associated organizations to be covered by a church plan, to support its position. Dignity argued that because it is associated with a church and its employees can be covered by a church plan, that its Plan is a church plan. That an established church plan may include employees of a church-associated organization, however, does not mean that an associated organization may establish a church plan. Section C(ii) merely explains which employees a church plan may cover — once a valid church plan is established. It does nothing more. The Court holds that notwithstanding section C, which permits a valid church plan to be maintained by some church-affiliated organizations, section A still requires that a church establish a church plan. Because the statute states that a church plan may only be established “by a church or by a convention or association of churches,” only a church or a convention or association of churches may establish a church plan. 29 U.S.C. 1002(33)(A). Dignity’s effort to expand the scope of the church plan exemption to any organization maintained by a church-associated organization stretches the statutory text beyond its logical ends. The Court acknowledges that the position it takes here runs contrary to several cases outside this circuit that have considered the church plan exemption and have held that it applies to plans established by church-affiliated entities. Although those cases are not binding authority, the Court has nevertheless examined each contrary case and is not convinced by the reasoning the cases employed. Initially, the Court notes that the contrary cases themselves differ in their interpretations of the statutory text. Several cases to have explored the issue appear to have read section C(i)’s language on who *916may maintain a church plan to abrogate the limitations clearly set out in section A on who can establish a church plan. See, e.g., Thorkelson v. Publ’g House of Evangelical Lutheran Church in Am., 764 F.Supp.2d 1119, 1126-27 (D.Minn.2011); Lown v. Cont’l Cas. Co., 238 F.3d 543, 547 (4th Cir.2001). Yet others overlooked the express limitation on section C(i) that an organization maintaining a church plan must have as its “principal purpose or function ... the administration or funding of a [benefits plan]” and cannot simply be a church-affiliated healthcare organization, or publishing house. See, e.g, Chronister v. Baptist Health, 442 F.3d 648, 652 (8th Cir.2006); Lown, 238 F.3d at 547. And still others read into the statute’s broad definition of employees who may be covered by a church plan, a completely different idea that church-affiliated organizations may start their own church plans. See e.g., Rinehart v. Life Ins. Co. of N. Am., No. C08-5486 RBL, 2009 WL 995715, at *3 (W.D.Wash. Apr. 14, 2009). As explained in detail above, the Court is not persuaded by. these flawed approaches. Rather, it adheres to the principle that Congress “says in a statute what it means and means in a statute what it says there.” BedRoc Ltd., LLC, 541 U.S. at 183, 124 S.Ct. 1587 (internal quotation marks omitted). If Congress intended to alter the types of entities that can establish a church plan, such amendment would have been made to section A, which again, clearly states that a church plan is one “established and maintained ... by a church or by a convention of association of churches.” The Court is not compelled by the legal gymnastics required to infer from section C’s grant of permission to church associations to maintain a church plan, or its broad view of which employees may be covered by a church plan — that a church plan may be established by any entity other than a church or a convention or association of churches as set forth in section A. Although the text is conclusive, the Court notes that legislative history also strongly supports its reading. The history explains that the purpose behind section C was only to permit churches to delegate the administration of their benefits plans to specialized church pension boards without losing their church plan status; it was not to broaden the scope of organizations who could start a church plan. Prior to the amendment, because the statute read that a church plan was one “maintained by a church or by a convention or association of churches,” churches whose plans were managed by pension boards were concerned about their status. To ensure they could maintain the exemption, leaders of several large church organizations wrote to and testified before Congress about their concerns.4 In response to the churches’ concerns, Sen. Herman E. Talmadge of Georgia introduced legislation as far back as 1978, with language substantially identical to the language currently in section C(i), to ensure that “a plan funded or administered through a pension board ... [would] be *917considered a church plan” so long as the pension board’s “principal purpose or function” was the administration of the church plan, and the pension board was “controlled by or associated with a church.” 124 Cong. Rec. S8089 (daily ed. June 7, 1978) (statement of Sen. Herman Tal-madge). In 1980, H.R. 8904 and S. 1076 were introduced in their respective houses and both sought to make broad changes to ERISA. Sen. Talmadge’s church plan concerns were reflected in S. 1090 that year, and eventually came to be a part of S. 1076. H.R. 3904 did not initially include any changes to the church plan exemption, but after H.R. 3904 and S. 1076 both passed their respective houses, the Senate proposed, and the House accepted amendments to H.R. 3904, including Sen. Tal-madge’s proposed changes to the church plan exemption. Request To Concur In Senate Amendment With Amendments To H.R. 3904, Multi-Employer Pension Plan Amendments Act Of 1980, August 1, 1980. When seeking to add the language about the church plan exemption reflected in section C into S. 1076, Sen. Talmadge explained to the Senate Finance Committee that the purpose of his proposal was to expand the church plan definition to include “church plans which rather than being maintained directly by a church are instead maintained by a pension board maintained by a church.” Senate Committee on Finance, Executive Session Minutes, June 12, 1980, at 40. In turn, a Press Release documenting the Senate Finance Committee’s favorable report on the legislation that same day stated that the Committee had “agreed that the current definition of church plan would be continued .... The definition would be clarified to include plans maintained by a pension board maintained by a church.” Press Release, United States Senate Committee on Finance (June 12,1980). Likewise, once the provision was incorporated into H.R. 3904, the Senate Labor and Human Resources Committee noted on August 15, 1980, that pursuant to the amended bill, the definition of a church plan “would be continued” and only “clarified to include plans maintained by a pension board maintained by a church.” Senate Labor and Human Resources Committee Report on H.R. 3904, August 15, 1980. The same position was echoed in the House by Representative Ullman in his comments on August 25, 1980, just weeks before the bill’s passage. 126 Cong. Rec. H23049 (daily ed. Aug. 25, 1980). The legislative history thus demonstrates that section C(i) was only intended to permit church pension boards to administer church plans; it was never contemplated to be so broad as to permit any church-affiliated agency to start its own plan and qualify for ERISA exemption as a church plan. In sum, both the text and the history confirm that a church plan must still be established by a church. Because Dignity is not a church or an association of churches, and does not argue that it is, the Court concludes that Dignity does not have the statutory authority to establish its own church plan, and is not exempt from ERISA as a matter of law. Defendants’ motion to dismiss on this ground is thereby DENIED. Consequently, the Court refrains from ruling on Rollins’s constitutional claim which is premised on a finding that Dignity’s plan is exempt from ERISA. For the same reason, the Court also declines to consider Dignity’s argument that its exemption from ERISA eliminates the Court’s subject matter jurisdiction over this suit. In its reply brief, Dignity also argued that the Court lacks subject matter jurisdiction “because courts may not entangle themselves in a church’s affairs.” *918Defs.’ Reply at 11. As Dignity failed to raise the argument prior to its reply brief, the Court declines to consider this argument. See United States ex rel. Giles v. Sardie, 191 F.Supp.2d 1117, 1127 (C.D.Cal. 2000) (“It is improper for a moving party to introduce new facts or different legal arguments in the reply brief than those presented in the moving papers.”); see also Nevada v. Watkins, 914 F.2d 1545, 1560 (9th Cir.1990) (“[Parties] cannot raise a new issue for the first time in their reply briefs.” (citation omitted)). CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss is DENIED. IT IS SO ORDERED. . The Defendants' jointly moved to dismiss. Defendants in this case are Dignity Health, Herbert J. Vallier, a former Dignity Health official, and members of Dignity Health’s Retirement Plans Sub-Committee. For convenience, the Court refers to the Defendants' collectively as '‘Dignity.” . To support Dignity's position that both Dignity and its Plan subcommittee are "associated with” the Roman Catholic Church, Dignity submits volumes of documents as an appendix to its motion and as exhibits to two declarations submitted in connection with its papers. “When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond. A court may, however, consider certain materials — [including] matters of judicial notice — without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003) (citation omitted). However, a court may take judicial notice of documents only for their existence, not the truth of the contents therein. In re Am. Apparel, Inc. S’holder Litig., 855 F.Supp.2d 1043, 1064 (C.D.Cal.2012). As Dignity cites to these documents for the truth of the matters asserted within, the Court finds the documents inappropriate for judicial notice and declines to review them here on a motion to dismiss. . Even if entitled to any deference, at best informal, non-precedential decisions, such as the IRS’s PLRs, are entitled to only Skidmore deference, see Barrios v. Holder, 581 F.3d 849, 859 (9th Cir.2009), such that the weight the Court must give to the letters depends on “the thoroughness evident in [their] consideration, the validity of [their] reasoning, [their] consistency with earlier and later pronouncements, and all those factors which give [them] power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The PLRs that Dignity relies on recite Dignity’s predecessor organization's structure and repeat portions of the statute. I.R.S. P.L.R. 9409042 (Dec. 8, 1993), 9525061 (Mar. 28, 1995), I.R.S. P.L.R. 9717039 (Jan. 31, 1997), I.R.S. P.L.R. 200023057 (Mar. 20, 2000). The letters do not analyze the statute closely or evaluate how its language applies to Dignity. Because the IRS's letters are conclusory, even under the Skidmore framework, they are not entitled to deference. See Shin v. Holder, 607 F.3d 1213, 1219 (9th Cir.2010) (denying deference to Board of Immigration Appeals where its ruling was conclusory and ”lack[ed] any meaningful analysis”). . See, e.g., Letter from Gary S. Nash, Secretary, Church Alliance for Clarification of ERISA, to Hon. Harrison A Williams, Jr., Chairman, Senate Committee on Human Resources (August 11, 1978); Hearing on the ERISA Improvements Act of 1978 Before the S. Comm, on Labor and Human Resources (1978) (statements of Dr. Charles C. Coswert, Executive Secretary, Board of Annuities and Relief of the Presbyterian Church of the United States and Gary S. Nash, General Counsel, Annuity Board of the Southern Baptist Convention, Church Alliance for Clarification of ERISA, available as a part of the Appendix to ERISA Improvements. Act of 1978, Hearings before S. Committee on Labor and Human Resources, 96th Cong. 1317-1394 (1978).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224363/

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SUSAN ILLSTON, United States District Judge Cross-motions for summary judgment by plaintiff/counterdefendant Ariosa Diagnostics, Inc. and defendant/counterclaim-ant Sequenom, Inc. came on for oral argument on October 11, 2013. Having considered the parties’ motion papers, pleadings and arguments, and for good cause shown, the Court GRANTS Ariosa’s motion for summary judgment and DENIES Sequenom’s motion for summary judgment. BACKGROUND In this declaratory judgment action, plaintiff Ariosa, formerly known as Aria Diagnostics, Inc., seeks a declaration that its non-invasive prenatal test, the Harmony test, using cell-free fetal DNA circulating in the blood of a pregnant woman does *941not directly infringe or contribute to the infringement of U.S. Patent No. 6,258,540 (“the ’540 patent”), licensed by defendant Sequenom. 1. The ’540 Patent Sequenom is the exclusive licensee of the ’540 patent, which Sequenom licensed from Isis Innovation Limited (“Isis”). See Docket No. 37, Tatman Decl. ¶¶ 3^1 The ’540 patent is entitled “Non-invasive Prenatal Diagnosis,” and was issued to inventors Yuk-Ming Dennis Lo and James Stephen Wainscoat on July 10, 2001 and assigned to Isis. U.S. Patent No. 6,258,540 The ’540 patent relates to prenatal detection methods performed on a maternal serum or plasma sample from a pregnant female, which methods comprise detecting the presence of a paternally inherited nucleic acid of fetal origin in the sample. Id. at 2:1-4. “This invention enables non-invasive prenatal diagnosis, including for example sex determination, blood typing and other genotyping, and detection of pre-eclampsia in the mother.” Id. (Abstract). According to the patent, conventional pre-natal diagnostic DNA tests such as amniocentesis and chorionic villus sampling involved invasive procedures with risks to the mother and the pregnancy. ’540 Patent at 1:12-17; see also Docket No. 35, Evans Decl. ¶¶ 34-37. Therefore, non-invasive techniques began to be developed that used maternal blood or serum. ’540 Patent at 1:18-20. Prior noninvasive DNA research had focused on detecting fetal cells in a mother’s bloodstream, because the presence of cell-free fetal DNA was not known. Id. at 1:28-36; see also Docket No. 35, Evans Decl. ¶ 21. However, these techniques were time-consuming or required expensive equipment. ’540 Patent at 1:36-37; see also Docket No. 35, Evans Decl. ¶¶ 39-41 (“Ultimately, neither approach, using fetal cells or the other noninvasive screening measurements described above, has proved sufficiently successful or reliable to replace invasive testing.”). The ’540 patent is based on the discovery in 1996-1997 by Drs. Lo and Wains-coat that cell-free fetal DNA (sometimes referred to as “cffDNA”) is detectable in maternal serum or plasma samples.1 ’540 Patent at 1:50-51; see also Docket No. 35, Evans Decl. ¶ 45. This discovery was important because according to the patent, “[t]he detection rate is much higher using serum or plasma than using nucleated blood cell DNA extracted from a comparable volume of whole blood, suggesting there is enrichment of foetal DNA in maternal plasma and serum.” ’540 Patent at 1:55-58. The three independent claims of the ’540 patent are as follows: 1. A method for detecting a paternally inherited nucleic acid of fetal origin performed on a maternal serum or plasma sample from a pregnant female, which method comprises amplifying a paternally inherited nucleic acid from the serum or plasma sample and detecting the presence of a paternally inherited nucleic acid of fetal origin in the sample. *94224. A method for detecting a paternally inherited nucleic acid on a maternal blood sample, which method comprises: removing all or substantially all nucleated and anueleated cell populations from the blood sample, amplifying a paternally inherited nucleic acid from the remaining fluid and subjecting the amplified nucleic acid to a test for the Paternally [sic] inherited fetal nucleic acid. 25. A method for performing a prenatal diagnosis on a maternal blood sample, which method comprises obtaining a non-cellular fraction of the blood sample amplifying a paternally inherited nucleic acid from the non-cellular fraction and performing nucleic acid analysis on the amplified nucleic acid to detect paternally inherited fetal nucleic acid. ’540 Patent at 23:60-67; 26:20-36. 2. Procedural Background Ariosa filed this declaratory relief action against Sequenom on December 19, 2011, seeking a declaration that its Harmony Test does not infringe any claims of the ’540 patent.2 Docket No. 1, Compl. On March 8, 2012, Sequenom filed an answer against Ariosa and a counterclaim for infringement of the ’540 patent. Docket No. 33. On March 8, 2012, Sequenom also filed a motion for a preliminary injunction, seeking to enjoin Ariosa from making, using, selling, offering for sale, or importing into the United States the Harmony Prenatal Test. Docket No. 34. On July 5, 2012, the Court denied Se-quenom’s motion for a preliminary injunction. Docket No. 121. In the order, the Court found that Ariosa had raised a substantial question with regard to the validity of the ’540 patent based on Ariosa’s argument that the ’540 patent does not cover patent eligible subject matter. Id. at 16-19. Sequenom appealed the Court’s denial of its motion for a preliminary injunction. Docket No. 123. On August 9, 2013, the Federal Circuit vacated the Court’s order denying the preliminary injunction and remanded the case for further proceedings. Aria Diagnostics, Inc. v. Sequenom, Inc., 726 F.3d 1296, 2013 U.S.App. LEXIS 16506 (Fed.Cir.2013). In vacating the order, the Federal Circuit rejected this Court’s initial claim construction, but offered no opinion as to whether there is or is not a substantial question regarding the subject matter eligibility of the asserted claims of the ’540 patent. Id. at *16-17. Rather, the Federal Circuit remanded with directions that this Court examine subject matter eligibility of the asserted claims in the first instance in light of the Supreme Court’s recent decision in Association for Molecular Pathology v. Myriad Genetics, Inc., — U.S.-, 133 S.Ct. 2107, 186 L.Ed.2d 124 (2013) and the Federal Circuit’s claim construction holdings. Id. at *16. By the present cross-motions for summary judgment, the parties move for summary adjudication of whether claims 1, 2, 4, 5, 8, 19-22, 24, and 25 of ’540 patent are drawn to patent-eligible subject matter. LEGAL STANDARD 1. Summary Judgment Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter *943of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party, however, has no burden to disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only demonstrate to the Court that there is an absence of evidence to support the non-moving party’s case. Id. at 325, 106 S.Ct. 2548. Once the moving party has met its burden, the burden shifts to the nonmoving party to “set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a genuine issue for trial.’ ” T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548). To carry this burden, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The mere existence of a scintilla of evidence ... will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255, 106 S.Ct. 2505. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment.” Id. However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979). The evidence the parties present must be admissible. Fed. R. Civ. P. 56(c)(2). 2. Subject Matter Eligibility Under § 101 Under § 101 of the Patent Act, “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 101. “In choosing such expansive terms ... modified by the comprehensive ‘any,’ Congress plainly contemplated that the patent laws would be given wide scope.” Diamond v. Chakrabarty, 447 U.S. 303, 308, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980). However, the Supreme Court has long held that there is an important exception to § 101: “ ‘[L]aws of nature, natural phenomena, and abstract ideas’ are not patentable.” Mayo Collaborative Servs. v. Prometheus Labs., Inc., — U.S. -, 132 S.Ct. 1289, 1293, 182 L.Ed.2d 321 (2012); see also id. (“[T]he [Supreme] Court has written that a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are manifestations of ... nature, free to all men and reserved exclusively to none.” (internal quotation marks omitted)). The Federal Circuit has explained that these exceptions should be applied narrowly. Ultramercial, Inc. v. Hulu, LLC, 722 F.3d 1335, 1342 (Fed.Cir.2013); see also Prometheus, 132 S.Ct. at 1293 (“The Court has recognized ... that *944too broad an interpretation of this exclusionary principle could eviscerate patent law. For all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.”). Patent eligibility under § 101 is an issue of law that may involve underlying factual issues. Accenture Global Servs. v. Guidewire Software, Inc., 728 F.3d 1336, at 1340-41, 2013 U.S.App. LEXIS 18446, at *10 (Fed.Cir.2013). Moreover, under 35 U.S.C. § 282, patents are presumed to be valid. Therefore, an alleged infringer must prove invalidity by clear and convincing evidence. See Microsoft Corp. v. i4i L.P., — U.S. -, 131 S.Ct. 2238, 2242, 180 L.Ed.2d 131 (2011); see also Ultramercial, 722 F.3d at 1339 (explaining that an accused infringer must prove ineligible subject matter under § 101 by clear and convincing evidence). In this connection, it is the factual evidence itself which must be clear and convincing. See Buildex, Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463 (Fed.Cir.1988) (clear and convincing evidence is evidence “which produces in the mind of the trier of fact an abiding conviction that the truth of [the] factual contentions are highly probable” (alteration in original) (citation and internal quotation marks omitted)). 3. Supreme Court Case Law on Subject Matter Eligibility The Supreme Court has issued several recent decisions articulating standards for the subject matter eligibility, building on cases decided over the last half-century. Several of these cases are briefly reviewed below. A. Funk Brothers The patent in Funk Brothers claimed an inoculant for leguminous plants comprising a plurality of selected mutually non-inhibi-tive strains of different species of bacteria of the genus Rhizobium, where the strains are unaffected by each other in respect to their ability to fix nitrogen in the leguminous plant for which they are specific.3 Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 129 n. 3, 68 S.Ct. 440, 92 L.Ed. 588 (1948). The Supreme Court noted that prior to the invention, the general practice was to manufacture and sell inoculants containing only one of the six species of the Rhizobium bacteria, meaning that the inoculant could only be used successfully in plants that belonged to that specific species’ .inoculation group. Id. at 129, 68 S.Ct. 440. The inventors of the patent discovered that there are strains of each species of bacteria which do not exert a mutually inhibitive effect on each other, and, therefore, could be isolated and used in mixed cultures. Id. at 130, 68 S.Ct. 440. “Thus [the invention] provided a mixed culture of Rhizobia capable of inoculating the seeds of plants belonging to several cross-inoculation groups.” Id. The Supreme Court held that the claims were not patentable because “patents cannot issue for the discovery of the phenomena of nature.” Id. at 130, 68 S.Ct. 440. The Supreme Court explained that discovery of the fact that certain strains of each species of these bacteria can be mixed without harmful effect to the properties of either is no more than the discovery of *945some of the handiwork of nature and hence is not patentable. Id. at 131, 68 S.Ct. 440. “If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.” Id. at 130, 68 S.Ct. 440. The Court recognized that the aggregation of select strains of the species of bacteria into one product is an application of a newly-discovered natural principle, but explained that the application of that principle “is hardly more than an advance in the packaging of the inoculants.” Id. at 131, 68 S.Ct. 440; see also id. at 132, 68 S.Ct. 440 (“[0]nce nature’s secret of the non-inhibi-tive quality of certain strains of the species of Rhizobium was discovered, the state of the art made the production of a mixed inoculant a simple step.”). B. Gottschalk v. Benson The patent application in Benson “claimed a method for converting binary-coded decimal (BCD) numerals into pure binary numerals.” Gottschalk v. Benson, 409 U.S. 63, 64, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972). The Supreme Court noted that “[t]he claims were not limited to any particular art or technology, to any particular apparatus or machinery, or to any particular end use,” and “[t]hey purported to cover any use of the claimed method in a general-purpose digital computer of any type.” Id.’, see also id. at 68, 93 S.Ct. 253 (“Here the ‘process’ claim is so abstract and sweeping as to cover both known and unknown uses of the BCD to pure binary conversion”). The Supreme Court held that the claims were ineligible subject matter because the formula for converting BCD numerals to pure binary numerals was an abstract idea. See id. at 71, 93 S.Ct. 253. The Court explained: “The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.” Id. at 71-72, 93 S.Ct. 253. C. Parker v. Flook The patent application in Flook claimed a method of updating alarm limits,4 consisting of three steps: “an initial step which merely measures the present value of the process variable (e.g., the temperature); an intermediate step which uses an algorithm to calculate an updated alarm-limit value; and a final step in which the actual alarm limit is adjusted to the updated value.” Parker v. Flook, 437 U.S. 584, 585, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978). The Court noted that “[t]he only difference between the conventional methods of changing alarm limits” and the claimed method “rests in the second step — the mathematical algorithm or formula.” Id. at 585-86, 98 S.Ct. 2522; see also id. at 588, 98 S.Ct. 2522 (stating that because the patentee did not challenge the examiner’s finding, the Court assumed that “the formula is the only novel feature of respondent’s method”). *946The Supreme Court held that the application did not claim a patentable invention. Id. at 594, 98 S.Ct. 2522. The Supreme Court explained that “[t]he only novel feature of the method is a mathematical formula,” id. at 585, 98 S.Ct. 2522, and the discovery of a phenomenon of nature or mathematical formula “cannot support a patent unless there is some other inventive concept in its application.” Id. at 594, 98 S.Ct. 2522. In addition, the Supreme Court rejected the patentee’s argument that his invention was patentable because, unlike the patent in Benson, his invention did not wholly preempt the use of a mathematical formula. See id. at 589-95, 98 S.Ct. 2522. The Court recognized that the invention did not wholly preempt the formula, but explained that “ ‘if a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory.’ ” Id. at 595, 98 S.Ct. 2522 (quoting In re Richman, 563 F.2d 1026, 1030 (CCPA 1977)); see also id. at 590, 98 S.Ct. 2522 (“The notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula; the Pythagorean theorem would not have been patentable, or partially patentable, because a patent application contained a final step indicating that the formula, when solved, could be usefully applied to existing surveying techniques.”). D. Diamond v. Diehr The patent application in Diehr claimed “a process for molding raw, uncured synthetic rubber into cured precision products.” Diamond v. Diehr, 450 U.S. 175, 177, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981). The process involved constantly determining the actual temperature inside the mold, then automatically feeding the temperatures into a computer which would repetitively calculate the necessary cure time using a mathematical formula known as the Arrhenius equation, and opening the press whenever the elapsed cure time equaled the calculated necessary cure time. See id. at 178-79 & n. 5, 101 S.Ct. 1048. The Supreme Court found the invention to be patentable. The Court held that “a physical and chemical process for molding precision synthetic rubber products falls within the § 101 categories of possibly patentable subject matter.” Id. at 184, 101 S.Ct. 1048. The Court distinguished the invention at issue from the inventions found unpatentable in Benson and Flook. See id. at 185-88, 191-92 & n. 14, 101 S.Ct. 1048. The Court recognized that “the process admittedly employs a well-known mathematical equation, but [the patentees] do not seek to pre-empt the use of that equation. Rather, they seek only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process.” Id. at 187, 101 S.Ct. 1048. “[W]hen a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of § 101.” Id. at 192, 101 S.Ct. 1048. In addition, unlike in Flook, the patentees contended that there were novel aspects of the invention other than the use of the mathematical formula. See id. at 178-79, 101 S.Ct. 1048. E. Bilski v. Kappos The patent application in Bilski claimed a procedure for instructing buyers and sellers of commodities in the energy mar*947ket how to protect against the risk of price fluctuations in those commodities. Bilski v. Kappos, 561 U.S. 593, 130 S.Ct. 3218, 3223, 177 L.Ed.2d 792 (2010). “Claim 1 describes a series of steps instructing how to hedge risk. Claim 4 puts the concept articulated in claim 1 into a simple mathematical formula.... The remaining claims explain how claims 1 and 4 can be applied to allow energy suppliers and consumers to minimize the risks resulting from fluctuations in market demand for energy.” Id. at 3223-24. The Supreme Court held that the claims were unpatentable under Benson, Flook, and Diehr because the claims “are attempts to patent abstract ideas.” Id. at 3230. The Court explained that claims 1 and 4 in the patentees’ application explain the basic concept of hedging, or protecting against risk, and the concept of hedging is an unpatentable abstract idea. Id. at 3231. “Allowing petitioners to patent risk hedging would preempt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea.” Id. The Court also rejected the remaining claims of the application because they were “broad examples of how hedging can be used in commodities and energy markets.” Id. “Flook established that limiting an abstract idea to one field of use or adding token postsolution components d[o] not make the concept patentable.” Id. F. Mayo v. Prometheus The patents in Prometheus claimed processes that help doctors using thiopurine drugs to treat patients with autoimmune diseases determine whether a given dosage level is too low or too high. Prometheus, 132 S.Ct. at 1294. Too high a dosage would risk harmful side effects, but too low a dosage might be ineffective. Id. at 1295. At the time of the invention, scientists already understood that the levels of certain metabolites in a patient’s blood were correlated with the likelihood that a particular dosage of a thiopurine drug could cause harm or prove ineffective. Id. The patents’ claims set forth processes embodying researchers’ findings that identified the precise correlations between metabolite levels and likely harm or ineffectiveness. Id. The Supreme Court held that the claims were invalid under § 101. Id. at 1305. The Court explained that “Prometheus’ patents set forth laws of nature — namely, relationships between concentrations of certain metabolites in the blood and the likelihood that a dosage of a thiopurine drug will prove ineffective or cause harm.” Id. at 1296. “If a law of nature is not patentable, then neither is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a drafting effort designed to monopolize the law of nature itself. A patent, for example, could not simply recite a law of nature and then add the instruction ‘apply the law.’ ” Id. at 1297. Therefore, the Court concluded that although the patents recited additional steps in addition to the law of nature, the additional steps were insufficient to transform the character of the claims. See id. at 1297-98 (“[T]he claims inform a relevant audience about certain laws of nature; any additional steps consist of well understood, routine, conventional activity already engaged in by the scientific community; and those steps, when viewed as a whole, add nothing significant beyond the sum of their parts taken separately.”). G. Ass’n for Molecular Pathology v. Myriad The patentees in Myriad discovered the precise location and sequence of two human genes, the BRCA1 and BRCA2 genes, *948mutations of which can substantially increase the risks of breast and ovarian cancer, and obtained several patents based on that discovery. Myriad, 133 S.Ct. at 2110-11. The claims at issue gave Myriad “the exclusive right to isolate an individual's BRCA1 and BRCA2 genes ... by breaking the covalent bonds that connect the DNA to the rest of the individual’s genome. The patents [also gave] Myriad the exclusive right to synthetically create BRCA cDNA [ (“complementary DNA”) ].” Id. at 2113. The Supreme Court held that “a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but that cDNA is patent eligible because it is not naturally occurring.” Id. at 2111. The Court noted that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes and did not create or alter the genetic structure of DNA. Id. at 2116. “Instead, Myriad’s principal contribution was uncovering the precise location and genetic sequence of the BRCA1 and BRCA2 genes within chromosomes 17 and 13.” Id. “To be sure, [Myriad] found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.” Id. at 2117. In contrast, the Court found that cDNA is not a “product of nature” and, therefore, is patent eligible under § 101. Id. at 2119. DISCUSSION Ariosa argues that claims 1, 2, 4, 5, 8, 19-22, 24, and 25 of the ’540 patent are not drawn to patent eligible subject matter because paternally inherited cffDNA is a natural phenomenon and the claims of the ’540 patent merely add well-understood, routine, conventional activity in the field to that natural phenomenon. Docket No. 219 at 7-20. In response, Sequenom argues that the claimed methods are patentable because they are novel uses of a natural phenomenon, rather than a patent on the natural phenomenon itself. Docket No. 223 at 7-18. In addition, Sequenom argues that the claims are patentable because the claims do not preempt all uses of cffDNA. Id. at 18-22. The parties agree that neither cffDNA nor the discovery of cffDNA in maternal plasma or serum is patentable, because the presence of cffDNA in maternal plasma or serum is a natural phenomenon. Docket No. 219 at 1-2; Docket No. 223 at 1, 8; see Myriad, 133 S.Ct. at 2116; Prometheus, 132 S.Ct. at 1293; see also Funk Bros., 333 U.S. at 130, 68 S.Ct. 440 (“He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes.”). This is true even if the discovery of cffDNA in maternal plasma or serum was considered groundbreaking, innovative, and brilliant. See Myriad, 133 S.Ct. at 2117. However, the ’540 patent does not claim as an invention the discovery of cffDNA in maternal plasma or serum. The ’540 patent claims methods of detecting paternally inherited cffDNA in maternal plasma or serum. See ’540 Patent at 2:1-5, 23:60-26:40. Therefore, the issue before the Court is whether the steps of the claimed methods in the ’540 patent, applied to that natural phenomenon, are sufficient to render the claims patentable. See Prometheus, 132 S.Ct. at 1297 (“[D]o the patent claims add enough to their statements of the correlations to allow the processes they describe to qualify as patent eligible processes that apply natural laws”). A process or method is not un-patentable simply because it contains a law of nature, a natural phenomenon, or an abstract idea. Prometheus, 132 S.Ct. at 1293; Flook, 437 U.S. at 590, 98 S.Ct. 2522. But, to be patentable, a process that focus*949es upon the use of a natural law, a natural phenomenon, or an abstract idea must contain other elements or a combination of elements, sometimes referred to as an “inventive concept,” sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the natural law, natural phenomenon, or abstract idea itself. Prometheus, 132 S.Ct. at 1294; see also Flook, 437 U.S. at 594, 98 S.Ct. 2522 (“[T]he discovery of such a phenomenon cannot support a patent unless there is some other inventive concept in its application”). In other words, the claimed process — apart from the natural law, natural phenomenon, or abstract idea — must involve more than “well-understood, routine, conventional activity,” previously engaged in by those in the field. Prometheus, 132 S.Ct. at 1294, 1299; see also id. at 1300 (“[SJimply appending conventional steps, specified at a high level of generality, to laws of nature, natural phenomena, and abstract ideas cannot make those laws, phenomena, and ideas patentable.”); Myriad, 133 S.Ct. at 2119-20 (explaining that an innovative method of manipulating a natural phenomenon — as opposed to applying a well-understood process in the field — would be patentable). Here, Ariosa argues that the method steps contained in claims 1, 2, 4, 5, 8, 19-22, 24, and 25 of the ’540 patent do not add enough to the natural phenomenon of paternally inherited cffDNA to make these claims patentable under § 101. Docket No. 219 at 10-20. Specifically, Ari-osa argues that the additional limitations in the claims either apply well-understood, routine, and conventional activity to the natural phenomenon or limit the natural phenomenon to specific types of the natural phenomenon, which are also unpatentable. See id. The Court agrees. For example, claim 1 of the ’540 patent claims a method for detecting cffDNA, comprising the following two steps: “amplifying a paternally inherited nucleic acid from the serum or plasma sample [from a pregnant female] and detecting the presence of a paternally inherited nucleic acid of fetal origin in the sample.” ’540 Patent at 23:64-67. Ariosa has presented the Court with evidence, including the specification and prosecution history of the ’540 patent and testimony by Sequenom’s own expert, Dr. Evans, stating that the amplification and detection of DNA sequences in plasma or serum was well known by 1997. Docket No. 219 at 10-14 (citing evidence); Docket No. 238 at 6-7 (citing evidence). For example, the specification of the ’540 patent states that “[t]he preparation of serum of plasma from the maternal blood sample is carried out by standard techniques” and also states “[standard nucleic acid amplification systems can be used.” ’540 Patent at 2:26-27, 2:44-45; see also Docket No. 219-7, Gindler Decl. Ex. 5 ¶ 7. In addition, the inventors during the prosecution history stated that any of the well-known, routine techniques for detection of DNA could be used to detect fetal DNA in maternal serum or plasma. Docket No. 219-4, Gindler Decl. Ex. 2 at 5, 7-8,10, 12; see also ’540 Patent at 1:38 — 43. Sequenom’s expert Dr. Evans acknowledged that traditional DNA diagnostics, prior to the invention, commonly involved sample preparation, amplification, and detection. Docket No. 219-6, Gindler Decl. Ex. 4 at 188:5-13; see also id. at 150:18-151:7, 152:4-15. Dr. Evans also acknowledged that others before the inventors had amplified and detected nucleic acid in plasma or serum. Id. at 188:15-17; Docket No. 35, Evans Decl. ¶ 58; see also Docket No. 238-7, Gindler Decl. Ex. 16 at 485 (“There has been much interest in the use of DNA derived from plasma or serum for molecular diagnosis.”). Sequenom does not contest that these steps and other steps in the *950patent5 were well-understood, routine, and conventional activity by those in the field at the time of the invention. Indeed, in its reply brief and at oral argument, Seque-nom acknowledges that the claims of the ’540 patent merely apply “conventional techniques” to the newly discovered natural phenomenon of cffDNA. Docket No. 240 at 7 (“Just like Myriad’s claim 21, the ’540 patent’s claims apply conventional techniques to use a newly-isolated natural phenomenon for diagnostic purposes.”); Docket No. 253 at 19:7-10 (“The inventive concept was to take a known method and to look at [it] in a place where people were — where the Federal Circuit and all the experts agree were throwing waste away, to look there ...”), 21:19-21 (“I don’t disagree that if you go through all the elements in the claim you could put a check as either a conventional item or a natural phenomenon.), 37:20-22, 38:25-39:1 (“They used conventional tools to make it useful to other people.”). Because the claimed processes at issue — apart from the natural phenomenon of paternally inherited cffDNA — involve no more than well-understood, routine, conventional activity, previously engaged in by those in the field, they are not drawn to patent eligible subject matter and are invalid under § 101. See Prometheus, 132 S.Ct. at 1294, 1299-1300; Myriad, 133 S.Ct. at 2119-20. Sequenom argues that the claims are patentable because although cffDNA is not patentable, the use of-cffDNA is patent eligible. Docket No. 223 at 7-10. The Court disagrees. The Supreme Court has never stated that any use of a natural phenomenon is patentable. To the contrary, the Supreme Court has held that “simply appending conventional steps, specified at a high level of generality, to laws of nature, natural phenomena, and abstract ideas cannot make those laws, phenomena, and ideas patentable.” Prometheus, 132 S.Ct. at 1300. It is only an innovative or inventive use of a natural phenomenon that is afforded patent protection. See Myriad, 133 S.Ct. at 2119 (“Had Myriad created an innovative method of manipulating genes while searching for the BRCA1 and BRCA2 genes, it could possibly have sought a method patent.”); Flook, 437 U.S. at 594, 98 S.Ct. 2522 (“[A]n inventive application of the principle may be patented.”). Sequenom attempts to argue that its patent claims an inventive method of using cffDNA. But, based on the undisputed facts before the Court, the *951only inventive part of the patent is that the conventional techniques of DNA detection known at the time of the invention are applied to paternally inherited cffDNA as opposed to other types of DNA. Thus, the only inventive concept contained in the patent is the discovery of cffDNA, which is not patentable. The Court’s conclusion conforms with the relevant Supreme Court case law, in particular Flook and Myriad. The patent in Flook, like the present patent, claimed methods that utilized an abstract idea or a natural phenomenon — a mathematical algorithm in Flook, paternally inherited cffDNA in the present case.6 See 437 U.S. at 585, 98 S.Ct. 2522. In Flook, as in here, the use of the abstract idea or the natural phenomenon is the only inventive feature of the claims. See id. at 588, 98 S.Ct. 2522. In Flook, the Supreme Court noted “the only difference between the conventional methods of changing alarm limits and that described in respondent’s application rests in the second step — the mathematical algorithm or formula.” Id. at 585-86, 98 S.Ct. 2522. Similarly, based on the undisputed facts, the only difference between the conventional methods of DNA detection and that described in the ’540 patent rests in the application of the methods to paternally inherited cffDNA, a natural phenomenon. Sequenom argues that its use of cffDNA is inventive because prior to the invention, no one had started with the mother’s plasma or serum to detect paternally inherited fetal DNA. Docket No. 223 at 7, 16. Even assuming this true, the same argument could be made for the claims in Flook. Prior to the invention in Flook, no one had used that particular mathematical formula to update alarm limits. Despite this, the Supreme Court held that the claims in Flook were not drawn to patent eligible subject matter. Thus, use of a newly discovered natural phenomenon, law of nature, or abstract idea will not render a claim patentable if the use of that natural phenomenon, law of nature or abstract idea is the only innovation contained in the patent. See Flook, 437 U.S. at 594, 98 S.Ct. 2522 (“[T]he discovery of such a phenomenon cannot support a patent unless there is some other inventive concept in its application.”); Prometheus, 132 S.Ct. at 1294, 1299 (requiring that claims — apart from the natural phenomenon — contain more than well-understood, routine, conventional activity); Funk Bros., 333 U.S. at 131, 68 S.Ct. 440 (“[HJowever ingenious the discovery of that natural principle may have been, the application of it is hardly more than an advance in the packaging of the inoculants.”). As explained in Flook, “the Pythagorean theorem would not have been patentable, or partially patentable, because a patent application contained a final step indicating that the formula, when solved, could be usefully applied to existing surveying techniques.” 437 U.S. at 590, 98 S.Ct. 2522. The Court similarly concludes that paternally inherited cffDNA is not patentable simply because the claims contain steps indicating that it may be detected using existing DNA detection methods. *952Further, even though Myriad involved composition claims rather than method claims, that decision also supports the Court’s conclusion. The claims in Myriad gave the patentees the exclusive right to isolate the BRCA1 and BCRA2 genes. See 133 S.Ct. at 2113. Although the Supreme Court was not presented with method claims, the Court explained “[h]ad Myriad created an innovative method of manipulating genes while searching for the BRCA1 and BRCA2 genes, it could possibly have sought a method patent. But the processes used by Myriad to isolate DNA were well understood by geneticists at the time of Myriad’s patents....”7 Id. at 2119-20. Similarly, had the inventors of the ’540 patent created an innovative method of performing DNA detection while searching for paternally inherited cffDNA, such as a new method of amplification or fractionation, those claims would be patentable. But, the claims presently before the Court simply rely on processes to detect DNA that — as Sequenom concedes- — were conventional techniques by those in the field at the time of the invention. Docket No. 240 at 7; Docket No. 253 at 19:7-10, 21:19-121, 37:20-22, 38:25-39:1.8 Sequenom cautions that the Court should not engage in a step-by-step dismantling of the claims. Docket No. 223 at 22-24 (citing Diehr, 450 U.S. at 188, 101 S.Ct. 1048 (“In determining the eligibility of respondents’ claimed process for patent protection under § 101, their claims must be considered as a whole. It is inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. This is particularly true in a process claim because a new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made.”); Ultramercial, 722 F.3d at 1344)). In evaluating the pat-entability of the claims, the Court has not I *953dissected the claims into their individual limitations and then determined whether the individual elements are old or new. Rather, the Court has considered the claimed processes as a whole. The unre-butted evidence does not merely show that the individual steps of fractionation, amplification and detection were well-understood, routine, and conventional activity at the time of the invention. The evidence shows that its was well-understood, routine, and conventional activity to combine these steps to detect DNA in serum or plasma. See ’540 Patent at 1:19-43; Docket No. 35, Evans Deck ¶ 58; Docket No. 219-6, Gindler Decl. Ex. 4 at 188:5-13, 188:15-17; Docket No. 23 8-7, Gindler Deck Ex. 16 at 485. Therefore, looking at the claimed processes as a whole, the only inventive component of the processes in the ’540 patent is to apply those well-understood, routine processes to paternally inherited cffDNA, a natural phenomenon. In addition, in determining whether a claim is patentable, a court should consider whether the claim poses a risk of preempting a law of nature, natural phenomenon, or abstract idea.9 See Accenture, 728 F.3d 1336, at 1340-41, 2013 U.S.App. LEXIS 18446, at *10-11; CLS Bank Int’l v. Alice Corp. Pty, 717 F.3d 1269, 1280-82 (Fed.Cir.2013) (en banc) (Lourie, J., concurring); see also Prometheus, 132 S.Ct. at 1294 (Supreme Court case law “warn[s] against upholding patents that claim processes that too broadly preempt the use of a natural law.”); Diehr, 450 U.S. at 187,101 S.Ct. 1048 (noting that the claims did not preempt use of the equation). Sequenom argues that the claims of the ’540 patent do not preempt all other uses of cffDNA. Docket No. 223 at 20. In support of this argument, Seque-nom has presented the Court with scientific articles describing methods for detecting cffDNA. Docket No. 223-1, Root Deck Ex. A at A1875, A2011-12, A2102-05, A2273-80, Ex. F. Ariosa argues that even if these articles disclose alternative methods of detecting cffDNA, Sequenom has failed to present any evidence showing that any of these alternative methods are practical and commercially viable. Docket No. 238 at 17 n.3. In response, Sequenom argues that it is only relevant that the alternative methods can be practiced, not that they are commercially viable alternatives. Docket No. 240 at 14-15. The Court disagrees. If the alternative methods are not commercially viable, then the effect of the patent in practice would be to preempt all uses of the natural phenomenon. It is important to note that the ’540 patent does not merely claim uses or applications of cffDNA, it claims methods for detecting the natural phenomenon. Because generally one must be able to find a *954natural phenomenon to use it and apply it, claims covering the only commercially viable way of detecting that phenomenon do carry a substantial risk of preempting all practical uses of it. It is also important to note the age of the patent. The ’540 patent was issued in July 2001. That twelve years have passed since the issuance of the patent but Sequenom does not present the Court with any evidence of a commercially viable alternative method of detecting cffDNA reflects the broad scope of the ’540 patent’s claims and the great risk that the patent could preempt the use of cffDNA. Indeed, Sequenom itself has acknowledged the preemptive effect of its patent. See Docket No. 238-1, Gindler Decl Ex. 11 at 2 (“ ‘[Management believes that the in-licensed ’540 patent ... will block all non-invasive cell-free DNA-based approaches.’ ”), Ex. 12 at 6 (“[W]e believe [the ’540 patent] is the underpinnings of this whole field, and potentially believe anybody whose [sic] developing, an approach that interrogates the circulating cell [free] DNA is infringing this key patent in the field.”) Further, the articles cited by Sequenom were published after the issuance of the patent and well after the date of the invention. See Docket No. 223-1, Root Decl. Ex. A at A2102-05 (2003), A2273-80 (2012), Ex. F (2002). Therefore, even assuming that the articles disclose alternative methods of detecting cffDNA, Seque-nom has failed to show that any alternative methods existed at the time of the invention or at the time of issuance of the patent. Thus, it appears that the effect of issuing the ’540 patent was to wholly preempt all known methods of detecting cffDNA at that time. Accordingly, the Court concludes that the claims at issue pose a substantial risk of preempting the natural phenomenon of paternally inherited cffDNA and that the preemption inquiry supports the Court’s conclusion that the claims are not drawn to patent eligible subject matter. In sum, the Court concludes that, based on the undisputed facts before the Court, Ariosa has met its burden of proving by clear and convincing evidence that claims 1, 2, 4, 5, 8, 19-22, 24, and 25 of the ’540 patent are not drawn to patent eligible subject matter and are invalid under 35 U.S.C. § 101. CONCLUSION For the foregoing reasons, the Court GRANTS Ariosa’s motion for summary judgment and DENIES Sequenom’s motion for summary judgment. Docket Nos. 219, 223. IT IS SO ORDERED. . "Nucleic acid” is the overall name for the class of molecules that includes DNA (deoxy-ribonucleic acid) and RNA (ribonucleic acid). The significance of the discovery is that the process of isolating fetal cells was not necessary because fetal DNA was present outside of cells, as "extracellular” or "cell-free DNA” suspended in the maternal bloodstream. Docket No. 35, Evans Decl. ¶¶ 53, 57. Blood is made up of cells and plasma (the fluid containing proteins and other molecules in which cells are suspended). Id. ¶ 44. Serum is plasma without the clotting proteins (platelets), i.e., blood minus the cells and the clotting factors. Id. . Two other cases have been filed in the Northern District of California which also seek declaratory judgments that specific products do not infringe the '540 patent and that the '540 patent is invalid. See Matera, Inc. v. Sequenom, Inc., Case No. 12-cv-00132-SI (filed Jan. 6, 2012); Verinata Health, Inc. v. Sequenom, Inc., Case No. 12-cv-865-SI (filed Feb. 22, 2012). . Leguminous plants take nitrogen from the air and fix it in the plant for conversion to organic nitrogenous compounds. Funk Bros., 333 U.S. at 129, 68 S.Ct. 440. The ability of these plants to fix nitrogen from the air depends on the presence of bacteria of the genus Rhizobium in the plant. Id. Bacteria of the genus Rhizobium fall into at least six species. Id. "No one species will infect the roots of all species of leguminous plants. But each will infect well-defined groups of those plants.” Id. . "An 'alarm limit’ is a number.” Parker v. Flook, 437 U.S. 584, 585, 98 S.Ct. 2522, 57 L.Ed.2d451 (1978). During catalytic conversion processes (various processes used in the petrochemical and oil-refining industries), operating conditions such as temperature, pressure and flow rates are constantly monitored. Id. "When any of these 'process variables' exceeds a predetermined 'alarm limit,' an alarm may signal the presence .of an abnormal condition indicating either inefficiency or perhaps danger. Fixed alarm limits may be appropriate for a steady operation, but during transient operating situations, such as start-up, it may be necessary to 'update' the alarm limits periodically.” Id. . Dependent Claims 2 and 4 respectively add the limitations of requiring the use of the polymerase chain reaction ("PCR”) and the use of a sequence specific probe. See ’540 Patent at 24:60-61, 24:65-67. Ariosa has presented the Court with evidence that these two techniques were well-understood, routine, conventional activity engaged in by those in the field at the time of the invention. See id. at 2:44-45, 5:7-10, 6:42-7:10, 9:62-63, 10:5-7; Docket No. 35, Evans Decl. ¶ 42. Dependent Claims 5, 8, 19, and 20 merely limit the natural phenomenon of paternally inherited cffDNA to specific types of that natural phenomenon, such as requiring that the cffDNA is from a Y chromosome or requiring that the cffDNA is at least a certain percentage of the total DNA. See '540 Patent at 25:1-3, 25:8-10, 25:39-26:3. A specific type of a natural phenomenon is still a natural phenomenon and, thus, is not patentable. See Myriad, 133 S.Ct. at 2116; Prometheus, 132 S.Ct. at 1293. Dependent claims 21 and 22 add the limitations of fractionating the blood sample and providing a diagnosis based on the cffDNA. See id. at 26:4-26:16. Independent claims 24 and 25 contain — in addition to the limitations in claim 1 — limitations related to fractionating a blood sample. See id. at 26:20-36. Ariosa has presented the Court with evidence that fractionating blood and providing a diagnosis based on fetal DNA were well-understood, routine, conventional activity engaged in by those in the field at the time of the invention. See id. at 2:26-27; Docket No. 219-2, Gindler Decl. Ex. 3 at 6, Ex. 4 at 152:4-15, Ex. 5 ¶ 7. . The Court recognizes that the claims in Flook utilized an abstract idea, while the present claims utilize a natural phenomenon. However, the Supreme Court has never drawn a distinction between natural phenomena, laws of nature, and abstract ideas in determining patent eligibility. To the contrary, the Supreme Court has applied its § 101 jurisprudence uniformly regardless of whether the claims at issue involved a natural phenomenon, law of nature, or abstract idea. See, e.g., Myriad, 133 S.Ct. 2116-20 (natural phenomenon); Prometheus, 132 S.Ct. at 1293-1302 (law of nature); Bilski, 130 S.Ct. at 3229-31 (abstract idea). . The Supreme Court drew this distinction even though Myriad was the first to use those well-understood processes to isolate the BRCA1 and BRCA2 genes. See Myriad, 133 S.Ct. at 2112-13. Therefore, Myriad also supports the principle that the use of a newly discovered natural phenomenon, law of nature, or abstract idea will not render a claim patentable if the use of that natural phenomenon, law of nature or abstract idea is the only innovation contained in the patent. . The Court rejects Sequenom’s argument that Myriad supports the patentability of the ’540 patent’s claims because the Supreme Court implicitly approved of claim 21 of Myriad's patent. See Docket No. 223 at 12; Docket No. 240 at 6-7. In Myriad, the Supreme Court endorsed the statement in Judge Bry-son's Federal Circuit dissent that " '[a]s the first party with knowledge of the [BRCA1 and BRCA2] sequences, Myriad was in an excellent position to claim applications of that knowledge. Many of its unchallenged claims are limited to such applications.’ ” 133 S.Ct. at 2120. In his dissent, Judge Bryson cited to claim 21 as an example of such an application. However, the Supreme Court did not refer to claim 21, or any other method claims, as an example of that principle. See id. Moreover, although Sequenom argues that claim 21 merely applied the conventional steps of hybridizing and detecting with probes the BRCA1 gene, Docket No. 223 at 12, Se-quenom has not presented this Court with any evidence showing that hybridizing and detecting a gene with probes was conventional activity at the time of that invention. In addition, the Court rejects Sequenom’s argument that Myriad's holding that cDNA is patent eligible supports the patentability of the claims of the '540 patent. Docket No. 223 at 11; Docket No. 240 at 5. In Myriad, the Supreme Court held that cDNA was patent eligible because it was not a naturally occurring phenomenon. 133 S.Ct. at 2119. Here, Sequenom has failed to provide any evidence or argument stating that the methods claimed in the '540 patent produce a non-naturally occurring phenomenon. To the contrary, Se-quenom concedes that cffDNA is a naturally occurring phenomenon. See Docket No. 223 at 1, 8. . Although the Court agrees that preemption is a consideration when performing a § 101 analysis, the Court disagrees with Sequenom that whether the claims preempt all uses of the natural phenomenon is dispositive of the analysis. See Docket No. 223 at 2, 20. In Flook, the Supreme Court held that the claims were drawn to ineligible subject matter even though the Supreme Court conceded that the claims did not wholly preempt the mathematical formula at issue. See 437 U.S. at 589-90, 98 S.Ct. 2522. In Bilski, the Supreme Court held that the dependent claims at issue were drawn to ineligible subject matter even though they were limited to how the abstract idea of hedging could be used in commodities and energy markets and, thus, would not preempt use of the abstract idea in other fields. See 130 S.Ct. at 3231. Flook and Bilski have not been overruled and remain good precedent. See also Ultramercial, 722 F.3d at 1346 (''[T]he Supreme Court has stated that, even if a claim does not wholly preempt an abstract idea, it still will not be limited meaningfully if it contains only insignificant or token pre- or post-solution activity — such as identifying a relevant audience, a category of use, field of use, or technological environment.”).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217491/

MEMORANDUM * Substantial evidence supports the jury’s finding by special verdict that Mary J. Kling’s copyright claim against the defendants is barred by the Copyright Act’s three-year statute of limitations. See 17 U.S.C. § 507(b). Although damages caused by copyright infringements during the three years immediately preceding the filing of the action would be recoverable, Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir.1994), Kling presented no evidence to support an award of such damages. The district court, therefore, did not err by not instructing the jury that they could award damages to Kling for infringements during that period. Because we conclude that Kling’s copyright claim is barred by the statute of limitations, we do not reach the remaining issues raised by her appeal. *823With regard to the appellees’ cross-appeal, we conclude that the district court properly considered the non-exclusive Fogerty factors of frivolousness, motivation, objective unreasonableness, and compensation and deterrence, Fogerty v. Fantasy, Inc., 510 U.S. 517, 584 n. 19, 114 S.Ct. 1028, 127 L.Ed.2d 455 (1994), as weE as the plaintiffs degree of success, Jackson v. Axton, 25 F.3d 884, 890 (9th Cir.1994), and did not abuse its discretion in denying the appeEees’ request for attorney fees under 17 U.S.C. § 505. See Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir.1996). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217492/

MEMORANDUM*** Lois Wallace appeals the district court’s judgment affirming the administrative law judge’s (ALJ) decision to deny social security disability benefits. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We review the ALJ’s decision to deny social security benefits to ensure it is supported by substantial evidence and free of legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Subjective Testimony Wallace argues that the ALJ’s decision to discredit her testimony is not supported by substantial evidence. We disagree. The ALJ gave specific and cogent reasons for discrediting Wallace’s testimony, and those reasons are supported by substantial evidence in the record. See *825Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir.1999). First, the ALJ discredited Wallace’s allegation that her vision prevented office work based on his findings that she had been able to do office work for more than ten years, despite her congenital visual impairment; that she had a conviction for disability in excess of her physical limitations; that she had not attempted to simulate the use of a computer under the best circumstances; and that she had not ruled out the possibility of doing other types of office work. These are “specific and cogent” reasons for discrediting Wallace’s testimony that she could not do office work because of her vision. The ALJ’s decision to discredit this testimony has support in substantial evidence and is not legal error. Second, there is substantial evidence to support the ALJ’s decision to discredit Wallace’s testimony that back pain prevented her from working. Though the ALJ found that Wallace had some pain, the record supports the ALJ’s finding that Wallace tended to embellish her symptoms, that her testimony during the hearing was dramatic, that her behavior was inconsistent with her complaints of pain when being observed casually before a medical examination, and that her testimony was inconsistent with the reports of treating physicians. The record also indicates that Wallace gave inconsistent reasons for quitting her job as a transcriber. Finally, the record supports the ALJ’s decision to disregard Wallace’s complaints of low frustration tolerance, nervousness, and depression because these impairments were not established by objective medical evidence. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir.1986).1 Residual Functional Capacity The ALJ’s finding that Wallace is capable of performing light work is supported by substantial evidence. All of Wallace’s treating physicians found Wallace capable of working. The medical opinion of the state medical consultant, who found her capable of light work, was consistent with her treating physicians’ opinions. The record also supports the ALJ’s finding that Wallace could use a computer if it was aligned properly, if proper lighting was provided, and if a larger font size was used. Also, none of the physicians opined that computer work at a desk would be impossible. Finally, the record shows that, contrary to Wallace’s contention, the ALJ considered the combined effects of Wallace’s impairments. The ALJ relied on the testimony of the vocational expert, who considered the combined effects of her back and visual impairments and found her capable of working in clerical jobs with a very limited amount of computer work, including filing, sorting, and general office work. See Erickson v. Shalala, 9 F.3d 813, 817 (9th Cir.1993). Examining Physicians The ALJ gave specific and legitimate reasons for rejecting Dr. Olsen’s and Dr. Curtis’ opinions, and those reasons are supported by substantial evidence. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.1995). The record supports the ALJ’s decision to reject Dr. Olsen’s opinion regarding Wallace’s back impairment. Dr. Olsen was not a back specialist and rendered an opinion beyond the scope of his speciality. Ad*826ditionally, Dr. Olsen only examined Wallace once, see Holohan v. Massanari, 246 F.3d 1195, 1203 n. 2 (9th Cir.2001), and Dr. Olsen’s opinion was rendered after the ALJ issued an initial adverse decision, rendering the opinion less persuasive. See Flaten v. Sec’y of Health and Human Servs., 44 F.3d 1453, 1463 (9th Cir.1995). The record also supports the ALJ’s decision to reject Dr. Curtis’ opinion regarding Wallace’s visual impairment. Dr. Curtis’ opinion was beyond his specialty, was contrary to the treating physicians’ opinions, and was based primarily on Wallace’s own reports of the severity of her condition, which were properly discounted. See Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.1989) (holding that physician’s opinion may be disregarded if it is based on subjective complaints that have already been discredited). Furthermore, Dr. Curtis only examined Wallace once, and his opinion was rendered after the ALJ issued an initial adverse decision. Vocational Expert The record supports the ALJ’s decision to disregard the vocational expert’s testimony regarding Wallace’s anxiety. The vocational expert’s role is to “translate factual scenarios into realistic job market probabilities,” Sample v. Schweiker, 694 F.2d 639, 643 (9th Cir.1982), not to evaluate medical evidence. The ALJ’s decision to discredit Wallace’s testimony and to find her capable of light work is supported by substantial evidence and is free of legal error. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . Dr. Curtis’ notes indicate that he thought Wallace was depressed, but his findings were based on his observations of Wallace during the exam. Dr. Curtis is neither a psychologist nor a psychiatrist, and he did not state that she had been depressed before the expiration of her insured status. See Flaten v. Sec’y of Health and Human Servs., 44 F.3d 1453, 1461 n. 4 (9th Cir.1995).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217493/

MEMORANDUM*** Lester McKee appeals the district court’s decision affirming the Commissioner of Social Security’s denial of his application for disability benefits under the Social Security Act. McKee argues the record does not support the Commissioner’s finding that McKee could perform his past relevant work. ‘We review de novo the district court’s order affirming the Commissioner’s denial of benefits.” Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999). The Commissioner’s decision will be upheld so long as it is supported by substantial evidence on the record as a whole and not based on legal error. Id. Substantial evidence refers to “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). In reviewing the record as a whole, we hold it provides substantial evidence to support the Commissioner’s findings. Five different doctors produced evidence indicating that McKee made an excellent recovery from his heart surgery and has few remaining limitations. Dr. Burwell, for instance, stated in a report that he believed McKee could return to his former job as a gas station attendant. Similarly, Dr. Ermshar, along with three other doctors, stated that McKee had only minimal impairments. With this evidence, the Commissioner reasonably concluded that McKee could perform his past work. The Commissioner thus properly denied McKee’s request for benefits as a supervisor. Judgment AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217495/

MEMORANDUM ** Lucio Mejia-Leal appeals the 77-month sentence imposed following his guilty-plea conviction for illegal reentry following removal under 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we vacate and remand. Mejia-Leal contends, among other things, that the government failed to provide the sentencing court with sufficient documentation or judicially noticeable facts for the court to determine whether his 1994 conviction under Cal. Health & Safety Code § 11351.5 warrants a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A). See United States v. Corona-Sanchez, 291 F.3d 1201, 1211-12 (9th Cir.2002) (en banc). The government has filed an “Ex Parte Response to Notice of Default and Motion to Seal” in which the government concedes that “Appellant’s position is meritorious and the case should be remanded.” Accordingly, we vacate the sentence and remand for resentencing. We grant the government’s motion to file under seal the Ex Parte Response to Notice of Default. VACATED and REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217497/

ORDER The parties having so agreed, it is ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217545/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Bobby Forrester Spoone, Jr., appeals the district court’s orders denying his motion to alter or amend a presentence investigation report and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Spoone, No. CA-00-3378-6-13BG (D.S.C. Aug. 9, 2002; Oct. 18, 2002). We deny Spoone’s motion to consolidate this appeal with case number 02-7827. 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224364/

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DEAN D. PREGERSON, District Judge. Before the court is Defendant Action Express, LLC (“Action Express”)’s Motion for Summary Judgement, or in the Alternative, for Partial Summary Judgement. (Dkt. No. 20.) The motion is fully briefed and suitable for decision without oral argument. Having considered the parties’ submissions, the court adopts the following order. I. Background The instant suit is a subrogation action by an insurer, Sompo Japan Insurance Company of America (“Sompo”), against a motor carrier, Action Express, arising from a stolen shipment of electronics that Sompo insured. In January 2008, Kenwood U.S.A. (“Kenwood”) hired Daylight Transportation (“Daylight”) to transport electronics from Long Beach, California to Doral, Florida. (Defendant’s Statement of Un-controverted Facts (“SUF”), Dkt. No. 22, ¶ 1.) Daylight, in turn, contracted with Action Express to complete the transportation of the cargo. (See SUF ¶ 4.) While Action Express was transporting the electronics to Doral, Florida, the tractor trailer containing the cargo was stolen from a truck stop in Wildwood, Florida. (Id. ¶ 5.) Kenwood claims the cargo that was lost during the theft was valued at $103,094.80. (Id. ¶ 6.) Kenwood filed a claim against Daylight for the loss. (Id. ¶ 7.) Daylight settled with Kenwood by paying Kenwood $30,700. (Id. ¶ 8.) This amount corresponds to the maximum amount recoverable under a limitation of liability provision in the Kenwood-Daylight contract, which limited liability to $25.00 per pound per package subject to a maximum of $100,000 per shipment. (Id. ¶ 3, 8.) Action Express reimbursed to Daylight the $30,700 settlement paid to Kenwood. (Id. ¶ 9.) Kenwood was insured against the loss of the cargo by Plaintiff Sompo. Pursuant to this insurance policy, Sompo paid Kenwood $82,704.28 to settle the loss claim. (Id. ¶ 10.) This amount apparently corresponds to 110% of the alleged value of the stolen Cargo (Sompo’s maximum liability under the insurance policy) less $30,700 (the amount of Kenwood’s settlement with Daylight). In the instant suit, Sompo brings a sub-rogation action against Action Express under 49 U.S.C. § 14706, the Carmack Amendment, to recover the $82,704.28 it paid Kenwood under the policy, plus prejudgment interest and costs. (See First Amended Complaint at 3.) Defendant Action Express moves for summary judgment, or in the alternative, partial summary judgment, inter alia on the grounds that (1) Sompo is precluded under the doctrine of superior equities from pursuing a subrogation claim against Action Express, and (2) Kenwood, and *957therefore Sompo as subrogee, is contractually prohibited from recovering more than $30,700 and Daylight has already paid Kenwood this maximum recoverable sum. (See Motion at 8.) II. Legal Standard Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party does not bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate that “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, All U.S. at 256, 106 S.Ct. 2505. Summary judgment is warranted if a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. A genuine issue exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and material facts are those “that might affect the outcome of the suit under the governing law.” Anderson, All U.S. at 248, 106 S.Ct. 2505. There is no genuine issue of fact “[wjhere the record taken as a whole could not lead 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, 89 L.Ed.2d 538 (1986). It is not the court’s task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir.1996). Counsel has an obligation to lay out their support clearly. Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001). The court “need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found.” Id. III. Discussion Action Express contends that Sompo is precluded from bringing its subrogation claim against it under the doctrine of superior equities. The court agrees. “Subrogation is defined as the substitution of another person in place of the creditor or claimant to whose rights he or she succeeds in relation to the debt or claim.” Fireman’s Fund Ins. Co. v. Maryland Casualty Co., 65 Cal.App.4th 1279, 1291, 77 Cal.Rptr.2d 296 (1998). “In the insurance context, subrogation takes the form of an insurer’s right to be put in the position of the insured for a loss that the insurer has both insured and paid. When an insurance company pays out a claim on a property insurance policy, the insurance company is subrogated to the rights of its insured against any wrongdoer who is lia*958ble to the insured for the insured’s damages.” State Farm Gen. Ins. Co. v. Wells Fargo Bank, N.A., 143 Cal.App.4th 1098, 1106, 49 Cal.Rptr.3d 785 (2006) (quotation marks and citations omitted). An insurer, in its role as subrogee, has no greater rights than those possessed by its insured, and its claims are subject to the same defenses. See Liberty Mut. Ins. Co. v. Fales, 8 Cal.3d 712, 717, 106 Cal.Rptr. 21, 505 P.2d 213 (1973) “While the insurer by subrogation steps into the shoes of the insured, that substitute position is qualified by a number of equitable principles.... The most restrictive principle is the doctrine of superior equities, which prevents an insurer from recovering against a party whose equities are equal or superior to those of the insurer.” State Farm, 143 Cal.App.4th at 1106-07, 49 Cal.Rptr.3d 785 (citing inter alia Meyers v. Bank of America Nat. Trust & Savings Ass’n, 11 Cal.2d 92, 102-103, 77 P.2d 1084 (1938)). The requirement that an insurer demonstrate superior equities to those of any third party from whom it seeks recovery in a subrogation action derives in part from the fact that the insurer has been paid a premium to assume the risk of loss. See id. at 1110, 49 Cal.Rptr.3d 785. In California, the doctrine of superior equities applies in all cases of equitable or conventional subrogation, regardless of the source of the insurer’s claim. See id. at 1109, 49 Cal.Rptr.3d 785 (citing inter alia Meyers, 11 Cal.2d at 101-103, 77 P.2d 1084; Jones v. Aetna Casualty & Surety Co., 26 Cal.App.4th 1717, 1724, 33 Cal.Rptr.2d 291 (1994)). In general, an insurer may seek recovery from the “direct cause of the loss (e.g., a dishonest employee, burglar, or fire starter) or the indirect cause of the loss (e.g., a bank, alarm company, or contractual indemnitor)”. Id. at 1113, 49 Cal. Rptr.3d 785. In the case of a claim against the direct cause of a loss, “an innocent insurer will always have superior equities.” Id. The analysis may be more complicated when weighing the equities of third parties who did not directly cause the loss but whose conduct contributed to or permitted the loss, as the third party’s degree of responsibility for the loss varies from case to case. See id. However, in order for the insurer to pursue a valid subrogation action, the third party against whom such an action is brought must always be “guilty of some wrongful conduct which makes his equity inferior” to that of the insurer. Golden Eagle Ins. Co. v. First Nationwide Fin. Corp., 26 Cal.App.4th 160, 171, 31 Cal.Rptr.2d 815 (1994). Action Express contends that Sompo has failed to create a triable issue of material fact as to any wrongful conduct by Action Express relative to the loss. (See Mot. at 13; Reply at 5.) Sompo asserts that the theft of its cargo was caused by Action Express’s negligence in failing to take adequate protections to safeguard the cargo. (See Opposition at 10.) In general, subrogation rights may be invoked against a third party that indirectly causes a loss by failing to adhere to certain prescribed procedures which could have avoided the loss. See In Barclay Kitchen, Inc. v. California Bank, 208 Cal.App.2d 347, 25 Cal.Rptr. 383 (1962) (allowing insurer’s subrogation claim against insured’s bank where the bank’s deviation from its standard procedures enabled insured’s employee to carry out embezzlement scheme); Hartford Fire Ins. Co. v. Riefolo Constr. Co., Inc., 81 N.J. 514, 410 A.2d 658 (1980) (allowing surety’s subrogation claim against third party bank where bank’s employees failed to verify the validity of a forged check); State Farm, 143 Cal.App.4th at 1103-04, 1119-*95920, 49 Cal.Rptr.3d 785 (allowing insurer’s subrogation claim against owner of apartment complex adjacent to insureds’ condominium where apartment owner’s failure to provide fire resistant trash container and safety instructions to tenants contributed to the spread of a fire started by ashes deposited by a tenant in trash container, damaging insureds’ property). Here, however, unlike the circumstances in Barclay, Hartford, and State Farm, the insurer, Sompo, has failed to allege any facts or point to any evidence tending to demonstrate that Action Express failed to adhere to any prescribed safety procedures or was otherwise guilty of wrongful conduct that contributed to the loss. The only relevant allegations in Sompo’s First Amended Complaint are as follows: 8. En route to the final destination, on or about February 4, 2012, Defendants, and each of them, stopped at a truck stop located at 493 W SR, Wildwood, Florida. During this intermission of delivery, the subject cargo was, due to lack of safeguards by Defendants, stole. 9. Defendants, and each of them, failed to deliver the subject cargo as a result of a theft at 493 W SR 44, Wildwood, Florida. (First Amended Complaint ¶ 8, 9.) Sompo does not describe, in the FAC or its Opposition to the present Motion, what safeguards it believes Action Express failed to employ. The only evidence Sompo cites in support of its contention that Action Express was negligent in failing to safeguard the cargo against theft is a police report concerning the theft. (See Plaintiffs Statement of Genuine Issues in Support of its Opposition, ¶¶ 19, 20; Segura Decl. Ex. B at 36-39 (Police Report).) Sompo refers to the police report only generally, without identifying any aspect of the report supporting its contention that Action Express acted negligently. A review of the police report finds no basis for Sompo’s contention. The report states in relevant part only that the driver of the truck informed the investigating officer that he parked the truck at a truck stop, locked the vehicle, took the vehicle’s keys with him as he and another occupant went to purchase some items and take a shower, and returned 30 minutes later to find that the truck and trailer were missing.1 (Segura Decl. Ex. B at 37.) Nothing in the report appears to support a finding that Action Express acted negligently or failed to follow prescribed safeguards to prevent theft. The absence of evidence tending to show Action Express engaged in wrongful conduct is fatal to Sompo’s subrogation claim because, lacking such evidence, there is no basis on which to find that Sompo’s equities are superior to those of Action Express. In light of this conclusion, the court does not reach Action Express’s additional ar*960guments in support of its motion for summary judgment. IV. Conclusion For the reasons stated herein, Action Express’s Motion for Summary Judgement is GRANTED. IT IS SO ORDERED. . The relevant passage of the police report states as follows: [The driver] stated that he drove a white freightliner with a white 53’ trailer (registration number for the trailer KVY3617L) into the parking lot of the Pilot at approximately 11:30 hours, and backed it to a parking spot located behind the Pilot. He advised the truck was an owner operator but could not provide the owner's information. He stated that the truck had the words Action Express in red letters on the doors, and had the number 305 on the front fenders. He stated that he entered the Pilot with Omar to purchase some items and take showers. He stated that he locked the doors and had the keys in his possession. He stated they were in the store approximately 30 minutes. fThe driver] stated he then returned to the parking lot and truck and trailer was [sic] missing. (Segura Decl. Ex. B at 37.)

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217500/

ORDER The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217502/

Judgment PER CURIAM. This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217503/

JUDGMENT PER CURIAM. This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217504/

PER CURIAM. John DeMontmollin appeals the judgment of the Court of Appeals for Veterans Claims (“Veterans Court”), granting the government’s motion to dismiss and denying his motion to recall mandate and vacate a previous judgment. DeMontmollin v. Principi No. 01-1061, 2002 WL 714123 (Vet.App. Feb. 27, 2002). Because the Veterans Court failed to address an issue necessary to its jurisdiction, we vacate and remand. I During his military service in World War II, Mr. DeMontmollin was held as a prisoner of war (“POW”) for over two years by the Nazi regime. This experience left him with physical disabilities such as stomach disorders and frostbite compli*930cations, as well as severe psychiatric conditions. In 1982, when Mr. DeMontmollin filed a claim for various service-connected conditions, the agency only awarded him a 10 percent rating for anxiety disorder, but denied the request - related to residual frostbite. After repeated requests, the agency granted him, in 1988, an additional 10 percent rating for service-connected residual frostbite. Although multiple examinations over the years indicated that Mr. DeMontmollin had developed psychiatric conditions that prevented him from obtaining employment, no further rating assignment occurred until 1995. After a July 1995 medical evaluation confirmed that he suffered from generalized anxiety disorder with post-traumatic stress disorder (“PTSD”), the agency increased his disability evaluation by 30 percent. Mr. De-Montmollin again filed an informal claim related to his service-connected psychiatric disability, and a 1997 medical examination confirmed that he exhibited numerous psychiatric symptoms that were connected with his POW experience and that limited his cognitive abilities. A subsequent examination in January 1998 confirmed that he suffered from PTSD, which led the agency to increase the veteran’s disability rating to a total of 50 percent. On appeal, the Board of Veterans’ Appeals (“Board”) assigned him a 100 percent disability evaluation for his service-connected psychiatric disability, but declined to make the award retroactive. The Board issued its final determination on July 21,1999. Mr. DeMontmollin disagreed with the Board’s denial of retroactivity. On August 3, 1999, the Board received two letters from Mr. DeMontmollin inquiring why he did not receive earlier effective dates for his 100 percent disability rating. Then, on August 9, 1999, the veteran filed a notice of appeal with the Veterans Court. Despite the pending appeal, the agency’s Wisconsin Regional Office responded to Mr. DeMontmollin’s letters by correspondence dated September 13,1999. After summarizing the Board’s decision, the agency informed him that he may either dispute the effective date for the 100 percent PTSD award by notifying the agency by August 2, 2000, or appeal the denial of earlier effective dates for the anxiety disorder and residual frostbite ratings by complying with appellate procedures. Ten months later, on June 1, 2000, the Veterans Court affirmed the Board’s 1999 decision. On July 13, 2000, Mr. DeMontmollin asked the Board to reconsider its 1999 decision, but the Board’s Chairman denied that request on September 6, 2000. On June 17, 2001, the Veterans Court received a second notice of appeal from Mr. De-Montmollin stating that he was appealing the September 6, 2000, Board decision. The agency moved to dismiss the second appeal. On September 13, 2001, the veteran’s newly retained counsel filed a response to the agency’s motion, consenting to a dismissal without prejudice. Mr. De-Montmollin’s attorney also filed a motion to recall the Veterans Court’s judgment and mandate, and to set aside the June 1, 2000, decision, on the basis that the August 3, 1999, correspondence constituted a motion for reconsideration. On February 27, 2002, the Veterans Court issued an order granting the agency’s motion to dismiss and denying Mr. DeMontmollin’s motion to recall and set aside the June 1, 2000, ruling. The court first ruled that it lacked jurisdiction over the Board’s September 6, 2000, denial of reconsideration, because the appeal was untimely filed. It then rejected Mr. De-Montmollin’s appeal of the 1999 Board decision, reasoning that there is no Board decision left to appeal since the June 1, 2000, ruling by the Veterans Court super*931seded the 1999 Board decision. Finally, although acknowledging that it would be a “close call” to determine whether Mr. De-Montmollin’s letters constituted a motion for reconsideration, the court declined to vacate its previous judgment based on res judicata. Mr. DeMontmollin, again acting pro se, seeks review in this court. II A Our jurisdiction to review decisions of the Veterans Court is limited to “any challenge to the validity of any statute or regulation or any interpretation thereof ... and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c) (2000). Furthermore, unless a constitutional issue is at stake, our jurisdiction does not extend to appeals objecting either to factual determinations or to the law as applied to the facts of a particular case. Id. § 7292(d)(2). Within those limited jurisdictional confínes, we may hold unlawful and set aside any regulation or any interpretation (other than a determination as to a factual matter) that we find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 7292(d)(1)(A). The jurisdictional reach of the Veterans Court presents a question of law for our plenary review. See Wick v. Brown, 40 F.3d 367, 370 (Fed.Cir.1994). B Contrary to the government’s assertions, we have jurisdiction over this appeal. We may review a denial of a request to recall the Veterans Court’s mandate and set aside a judgment, because that decision involved that court’s jurisdiction and authority to adjudicate. Maggitt v. West, 202 F.3d 1370, 1379 (Fed.Cir.2000) (finding jurisdiction over a Veterans Court’s denial of a motion to recall judgment, stay issuance of mandate, and remand the case to the Board). As we explained in Maggitt: We are not reviewing whether the Board’s decision on this issue is correct. We are simply asked to decide if the Veterans Court abused its discretion when it deified the remand motion. The Veterans Court derives its authority to remand matters to the Board from 38 U.S.C. § 7252(a) (1994), which expressly authorizes the court to “remand the matter, as appropriate.” That statute concerns the jurisdiction of the Veterans Court and authority of the court to exercise it. We have previously held that issues of the Veterans Court’s jurisdiction invoke our appellate responsibility, see Ephraim v. Brown, 82 F.3d 399, 400 (Fed.Cir.1996), and we may subject such issues to appropriate appellate review. Id. at 1379-80. Because the Veterans Court’s denial of Mr. DeMontmollin’s motion to recall the mandate and vacate judgment involves that court’s jurisdiction, a matter of statutory interpretation within our purview, we may address the merits of this appeal. Ill In denying the motion to recall the mandate and vacate judgment, the Veterans Court declined to address whether the August 3, 1999, letters constituted a motion for reconsideration, a determination the court acknowledged to be a “close call.” Because that determination affects the finality of the Board’s decision and thus the Veterans Court’s jurisdiction over the appeals, the court erred in not addressing that issue. For a claimant to appeal a Board’s decision to the Veterans Court pursuant to 38 U.S.C. § 7266(a), that decision must be final and the person adversely affected by *932that decision must file a timely notice of appeal with the court. See Bailey v. West, 160 F.3d 1360, 1363 (Fed.Cir.1998) (en banc). However, a notice of appeal filed after a motion for Board reconsideration is submitted is premature, because “the finality of the initial [Board] decision is abated by that motion for reconsideration.” Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991). The finality of the decision is restored only when the Board Chairman denies the motion for reconsideration or when the appellant withdraws the motion. See Wachter v. Brown, 7 Vet.App. 396, 397 (1995). Because a Board decision abated by a motion for reconsideration is not final, there is no appeal over which the Veterans Court may exercise jurisdiction. Pulac v. Brown, 10 Vet.App. 11, 12 (1997). In this case, if the August 3, 1999, letters constituted a motion for reconsideration, that motion remains pending before the Board, since the record does not reflect any decision by the Board’s Chairman on those letters. The pending motion would render the 1999 notice of appeal premature and deprive the Veterans Court from jurisdiction to issue its June 2000 ruling. Without the June 2000 ruling as res judicata for the February 2002 order, that latter order would lose its adjudicatory predicate and be legally erroneous. However, if those letters did not satisfy the prerequisites of 38 C.F.R. § 20.1001 for a motion for reconsideration, the Veterans Court properly exercised jurisdiction over the 1999 appeal. This appeal-and the validity of the two Veterans Court orders in this case-turns on whether the August 3, 1999, letters constituted a motion for reconsideration. Accordingly, whether the Veterans Court had jurisdiction to issue its June 2000 decision is a question that must be addressed before the Veterans Court may give res judicata effect to that decision. If the Veterans Court was powerless to issue the June 2000 decision, that decision cannot qualify for res judicata implementation. Here, the Veterans Court relied on the June 2000 ruling without first assuring itself of its authority to issue that decision, notwithstanding the urging by Mr. De-Montmollin that the court indeed lacked jurisdiction to issue its June 2000 decision. Because its jurisdiction derives from a congressional statutory grant of authority, the Veterans Court “must ensure that it has jurisdiction over each case before adjudicating the merits.” Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir.1996). This it failed to do when it declined to determine whether those letters constituted a motion for reconsideration. Because that determination requires an application of undisputed law to the facts of the case, we decline to address that question here and remand to the Veterans Court for proper adjudication. We therefore vacate the appealed judgment and remand for further proceedings consistent with this opinion. Because the Veterans Court’s jurisdiction to issue its June 2000 decision has yet to be determined, it shall recall its mandate and then adjudicate whether the August 3, 1999, letters constituted a motion for reconsideration. In addressing that issue, the Veterans Court shall construe pro se pleadings liberally as required by precedent, see Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980), Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and resolve any ambiguities regarding its statutorily-granted adjudicatory authority against the assumption of jurisdiction, see Livingston v. Derwinski 959 F.2d 224, 225 (Fed.Cir.1992).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217505/

PER CURIAM. After Staff Sergeant Sheldon Lamar Hunt (“Sgt. Hunt”) submitted a signed Request for Disposition Prior to Graduation, indicating his voluntary resignation from the Army’s Officer Candidate School (“OCS”), he brought this action in the Court of Federal Claims seeking back pay for six years active duty in the grade of captain and accompanying benefits; promotion to captain; six years active duty credit; expungement of all negative evaluations while at OCS; and travel pay from Newark, New Jersey, to Baton Rouge, Louisiana, for six years. Hunt v. United States, 52 Fed. Cl. 810 (2002). The Court of Federal Claims granted the government’s motion for summary judgment for failure to state a claim upon which relief can be granted, and Sgt. Hunt timely appealed. Because Sgt. Hunt failed to state a claim upon which relief could be granted, we affirm the decision of the Court of Federal Claims in favor of the government. DISCUSSION The primary problem with Sgt. Hunt’s case is that he fails to establish that he has a substantive right to recover money damages from the United States, a prerequisite for obtaining relief under the Tucker Act. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 *934(1976). The present action is not oñe concerning a wrongful discharge or a wrongful suspension. Sgt. Hunt does not even claim that he has been denied the benefit of a position to which he should have been, but was not, appointed, the claim that the Supreme Court in Testan found insufficient. Rather, Sgt. Hunt’s claim is even further removed from the claim in Testan. Sgt. Hunt submitted a signed Request for Disposition Prior to Graduation, in which he indicated that he lacked the commitment to complete the course and acknowledged that, “I make this statement freely and without coercion.” After his resignation was approved, Sgt. Hunt was released from OCS ten days before graduation, was not “recycled”- back through OCS, and did not earn his commission as an officer. Nevertheless, Sgt. Hunt asks, inter alia, for a promotion to captain, the opportunity that was denied him by his allegedly involuntary resignation. Even if this court were to grant Sgt. Hunt the relief he seeks pursuant to 87 U.S.C. § 204, there is no money to be awarded as a consequence of that relief. Sgt. Hunt can only be paid under 37 U.S.C. § 204 if this court could retroactively appoint him to the rank of captain and retroactively compensate him as if he had been so appointed, which it cannot. See Testan, 424 U.S. at 402. Because Sgt. Hunt was never appointed to the rank of captain and never performed any duties as a captain, he cannot be entitled to back pay at that rank under 37 U.S.C. § 204. In short, even if this court grants the requested relief, Sgt. Hunt’s claim to pay is purely speculative because “[t]he established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it.” Id., 424 U.S. at 402. Sgt. Hunt argues that, at the time his resignation was at issue, the government’s deceptive information, misinformation, and procedural error caused him to leave OCS before graduating. Both the Court of Federal Claims and the United States District Court for the District of New Jersey, which considered the same factual issue in Hunt v. Armbrister, No. 97-CV—4 (D.N.J. Apr. 29, 1997), found that Sgt. Hunt failed to overcome the presumption that his resignation from OCS was voluntary. But even assuming, arguendo, that the resignation was involuntary, the Court of Federal Claims could not grant relief by way of a money award, because the decision to promote him to captain would still remain unmade. We have reviewed the other arguments made by Sgt. Hunt, including the argument that the refusal of the Army Board for Correction of Military Records to change his records deprived him of pay. We find that none of those arguments dictate a result different from that properly reached by the Court of Federal Claims. COSTS No costs.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217507/

PER CURIAM. Mr. DiManni appeals the dismissal of his case by the Merit Systems Protection Board (Board) for lack of jurisdiction and for failure to state a claim upon which relief can be granted. DiManni v. R.I. Army Nat’l Guard, No. BN3443010092-I-1, 2002 WL 1370667 (M.S.P.B. June 14, 2002). Because the Board does not have jurisdiction to adjudicate Mr. DiManni’s claim, the Board’s decision is affirmed. I. Mr. DiManni held the position of Management Auditor, GS-9-11, in the United States Property Fiscal Office (USPFO), Analysis and Internal Review Division, Providence, Rhode Island. As a National Guard technician, Mr. DiManni received funds and property of the United States for the Rhode Island Army National Guard (RIANG). In particular, Mr. DiManni had the duty of preventing incidents of fraud, waste, and abuse of Government funds by members of the RIANG. From September 1985 to May 1989, auditors in his position were also required to hold membership in the state National Guard. Mr. DiManni satisfied this duality requirement by holding membership in the RIANG, and achieved the rank of Chief Warrant Officer. From September 1985 until January 1989, Mr. DiManni received positive Officer Evaluation Reports and promotions to the next higher grade in step with or in advance of his contemporaries. Mr. DiManni’s appraisals for his job as a Management Auditor reflected above-average or excellent performance of his duties. In March 1989, Mr. DiManni testified before the First Army Inspector General Team, which was investigating evidence of misappropriation of federal Government funds by Assistant Adjutant General Andre Trudeau, RIANG. Although the testimony of most of the witnesses against General Trudeau was confidential, Mr. DiManni’s testimony became public because he testified as part of his official duties as an employee of the USPFO. Two months after Mr. DiManni testified against General Trudeau, General Trudeau convened the Rhode Island Guard Annual Selective Retention Board (SRB). General Trudeau assumed the presidency of the SRB, but did not recuse himself from the proceedings when evaluating the record of Mr. *939DiManni, despite an apparent conflict of interest. Of the seventy-five commissioned and warrant officers reviewed by this SRB, only Mr. DiManni was not selected for retention. Following his non-retention by the RIANG, Mr. DiManni was involuntarily separated from his position as a Management Auditor for the USPFO. This separation, effective August, 28, 1989, was “due to loss of military membership other than for cause.” Mr. DiManni was then deemed eligible for a discontinued service retirement. Mr. DiManni appealed his separation from his Management Auditor position to the Board, asserting his non-selection was in retaliation for his whistleblowing. Mr. DiManni moved to join the USPFO as an appellee agency. Specifically, Mr. DiManni alleged that the USPFO “failed to reclassify him” in violation of various statutory provisions, as the position of Management Auditor was redescribed on May 25, 1989, as having competitive status. Mr. DiManni argued that this change to competitive status eliminated the concurrent National Guard membership requirement for his position. The administrative judge denied this motion, suggesting that the USPFO is statutorily part of the RIANG under the National Guard Technician’s Act. See 32 U.S.C. § 708 (2000). The administrative judge determined in his Initial Decision that the Board lacked jurisdiction to review a National Guard Technician removal action. Relying on the Board’s interpretation of the National Guard Technician’s Act, the administrative judge determined that the sole remedy for removal from a National Guard Technician’s position is an appeal to the Adjutant General of the applicable state National Guard. Furthermore, the administrative judge concluded that, even if the Board had jurisdiction to hear Mr. DiManni’s claim, the Board was unable to grant the relief Mr. DiManni sought. The administrative judge reasoned that although Mr. DiManni was a federal employee of the USPFO, as a National Guard Technician, his position was under the authority of a state official, i.e., the Adjutant General of the RIANG. The Board has no authority to enforce an order against state officials, such as the Adjutant General of the RIANG. Therefore, the administrative judge dismissed Mr. DiManni’s appeal for lack of jurisdiction. The Initial Decision of the administrative judge became final on June 14, 2002, when the Board denied Mr. DiManni’s petition for review. Mr. DiManni timely appealed to this court, which has exclusive jurisdiction. 28 U.S.C. § 1295(a)(9) (2000). II. Whether the Board has jurisdiction to adjudicate a particular appeal is a question of law reviewed de novo by this court. Herman v. Dep’t. of Def., 193 F.3d 1375, 1378 (Fed.Cir.1999). This court’s ability to review final decisions of the Board is limited by statute. Decisions of the Board will not be set aside unless found to be 1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2) obtained without procedures required by law, rule or regulation having been followed; or 3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); See Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). III. Regarding the Board’s denial of Mr. DiManni’s motion to add the USPFO as an appellee, Mr. DiManni argues that he was inappropriately separated from his Technician’s position because he was denied retention in the National Guard via an improper evaluation of his service records in retaliation for his whistle-blowing activi*940ties. This court notes that Mr. DiManni properly raises arguments questioning the Board’s rationale for denying his motion. In denying the motion the administrative judge states that “the USPFO is part of the RIANG.” DiManni, No. BN3443010092-I-1 at 4. However, this court finds no legal basis for that conclusion by the administrative judge. 32 U.S.C. § 708 reads in part: (a) The Governor of each State or Territory and Puerto Rico, and the commanding general of the National Guard of the District of Columbia, shall appoint, designate or detail, subject to the approval of the Secretary of the Army and the Secretary of the Air Force, a qualified commissioned officer of the National Guard of that jurisdiction who is also a commissioned officer of the Army National Guard of the United States or the Air National Guard of the United States, as the case may be, to be the property and fiscal officer of that jurisdiction. If the officer is not on active duty, the President may order him to active duty, with his consent, to serve as a property and fiscal officer. (c) When he ceases to hold that assignment, a property officer resumes his status as an officer of the National Guard. (e) The Secretary of the Army and the Secretary of the Air force shall prescribe joint regulations necessary to carry out subsections (a)-(d). 32 U.S.C. § 708 (2002). Thus, this statute provides for a gubernatorial nomination process for property and fiscal officers, enables the President of the United States to order these officers into active duty service, and provides for the Secretaries of the Army and Air Force to prescribe regulations for carrying out the statute. The regulations set forth by the Secretaries under this statute appear in NGR1306/ANGI 36-2 (December 17, 1999). These regulations prescribe the appointment, mission, duties, responsibilities, and personnel administration of USPFO officers. While the applicable regulations direct governors to nominate candidates, the Chief of the National Guard Bureau decides to accept or reject the nominees. Thus, the appointment is federal, not state in nature. Upon appointment, the Chief of the National Guard Bureau orders appointees into active duty under 10 U.S.C. § 12301(d) (2000). The regulations also state that “USPFOs are an integral part of the NGB (National Guard Bureau) Staff and in effect are extensions of the NGB Staff into the States.” See NGR130-6/ANGI 36-2 at 1-3. The regulations expressly state that USPFO personnel are “agents of the Chief, National Guard Bureau,” and as active duty officers are “assigned to the National Guard Bureau (NGB) with duty station in the State for which appointed as USPFO.” Id. These officers wear the National Guard Bureau Branch insignia. Id. For Uniform Code of Military Justice purposes, USPFO members of the Army National Guard of the United States are under the jurisdiction of the Commander, Military District of Washington. Id. Taken together, nothing in § 708 or its attendant regulations indicates that the USPFO is a component of the state National Guard, as determined by the administrative judge. To the contrary, the statute and proscribed regulations indicate that USPFO officers are members of the National Guard of the United States, and serve as agents of the National Guard Bureau, not part of the state National Guard with which they work. Because USPFO personnel are also military members on active duty, Mr. DiManni correctly notes that he was under the military command of the Army Nation*941al Guard of the United States while dually employed by the USPFO. Therefore, to the extent that the Board’s reasoning suggests Mr. DiManni’s chain of command for service performance evaluations resides within the RIANG, this court has held otherwise. See Clark v. United States, 322 F.3d 1358, slip op. at 12-14 (Fed.Cir. March, 2003). In Clark, this court reiterated the Supreme Court’s position that once called to active duty by the Army National Guard of the United States, military personnel are no longer under the control of state National Guard commanders-in-chief, i.e. governors. Perpich v. Dep’t of Def., 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990). As stated in Perpich, National Guardsmen wear three hats: as civilians, as members of state National Guard units, and as active duty members of the National Guard of the United States. However, they can only wear one hat at any given time. Id. at 347. Because National Guard members cannot simultaneously wear both state and federal National Guard hats, Mr. DiManni may indeed have a basis for his claim that he was involuntarily separated from his USPFO position due to an inappropriate evaluation of his service record by Adjutant General Trudeau of the RIANG, as opposed to the Vice Chief, National Guard Bureau. However, even though the administrative judge incorrectly understood 32 U.S.C. § 708 as requiring the USPFO to be a subdivision of the RIANG, this does not necessarily mean that the Board could adjudicate this claim by adding the USPFO as a party. It appears that the RIANG (or National Guard of the United States), not the USPFO, is the proper party for such a claim. It is also unclear from the record whether Mr. DiManni presented this argument to the Board before appealing to this court. Regardless, any error associated with the Board’s denial of Mr. DiManni’s motion to add the USPFO as a party was harmless, as the Board could not hear Mr. DiManni’s appeal for reinstatement to the USPFO, as discussed below. The National Guard Technician’s Act, 32 U.S.C. § 709 governs Mr. DiManni’s position as a Management Auditor: Notwithstanding any other provision of law, and under the regulations prescribed by the Secretary concerned ... a reduction in force, removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in rank or compensation shall be accomplished by the adjutant general of the jurisdiction concerned. 32 U.S.C. § 709(f)(3) (2000). This Act further provides that “a right to appeal which may exist with respect to paragraph (3) shall not exceed beyond the adjutant general of the jurisdiction concerned.” 32 U.S.C. § 709(f)(4). This court has interpreted this statutory language to mean that a National Guard Technician, who is a “federal employee for the purposes of fringe and retirement benefits,” nevertheless is barred from appealing adverse actions taken under the statute. Singleton v. Merit Sys. Prot. Bd., 244 F.3d 1331, 1334 (Fed.Cir.2001). This statute also precludes Board review of an assertion of prohibited personnel actions under the Whistleblower Protection Act. See 5 U.S.C. § 2302(a)(2)(A)® (2000); Singleton, 244 F.3d at 1336-37. Thus, Mr. DiManni’s request for reinstatement to his USPFO position as a Management Analyst is the type of action § 709(f)(3) expressly reserves to “the adjutant general of the jurisdiction concerned.” As noted in Singleton, “[t]he Board is a creature of limited authority,” which is statutorily permitted to “order any federal agency or employee to comply with any *942order or decision issued by the Board under the authority granted under paragraph (1) of this subsection and enforce compliance with any such order.” 5 U.S.C. § 1204(a)(l)(2) (2002); Singleton at 1336. The Board cannot enforce an order against a state entity, such as the RIANG. Accordingly, the Board correctly dismissed Mr. DiManni’s appeal for lack of jurisdiction. Therefore, the decision of the Board is affirmed.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217508/

DECISION PER CURIAM. Fortunato C. Rivera (“Rivera”) seeks review of a final decision of the Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans Appeals (“Board”) that denied Rivera’s claim for a non-service connected disability pension. Rivera v. Principi, No. 01-806, 2002 WL 1767358 (Vet.App. July 17, 2002). We affirm the decision of the Court of Appeals for Veterans Claims. *943BACKGROUND Rivera is an American citizen of Filipino origin and was a resident of the Philippines until his immigration to the United States in 1972. He fought in World War II with the U.S. Army in the Philippines. His Official Statement of Military Service from the U.S. Army Reserve Personnel Center (“USARPERCEN”) certifies that he: served as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the Armed forces of the United States, from 10 May 1942 to 20 November 1945, the date honorably discharged. Service was pursuant to the Call of the President of the United States dated 26 July 1941. In December 1994, Rivera filed a claim for pension benefits which was denied by the Regional Office (“RO”) in January 1995. The RO based the denial on the certification from USARPERCEN, which named him as a former recognized guerilla member, but not a member of the Army of the United States (“AUS”). Rivera submitted a second claim for benefits in August 1998, which also was denied in January 1999. Again the RO’s denial was based on the same certification from USAPERCEN. In April 1999, Rivera requested that the RO assist him in correcting what he perceived to be an error in his service status. Rivera’s basic contention regarding the error in his service status is that he had been improperly denied status as a member of the AUS. He contends that he was inducted into the 14th Infantry Regiment, United States Armed Forces in the Philippines, North Luzon (“USAFIP-NL”), pursuant to the Military Order of General MacArthur dated July 12, 1942. Rivera’s name does not, however, appear on the official roster of individuals determined to have AUS status as a result of service with USAFIP-NL. It was this error that Rivera requested that the RO aid in correcting. The RO advised Rivera that the Department of Veterans Affairs (“VA”) had no authority to determine or correct Rivera’s AUS status, and that his only remedy was to seek correction of his military record through the Army Board of Correction. The RO noted that if Rivera’s status actually was corrected, the VA would reconsider his entitlement to pension benefits. Rivera submitted his Application for Correction of Military Record to USAR-PERCEN in December of 1999. Along with his application, Rivera submitted evidence that he argued demonstrated why his records should be corrected. Additionally, he cited to Guerrero v. Stone, 970 F.2d 626 (9th Cir.1992), which required the Secretary of the Army to correct the AUS status of a former USAFIP-NL member. Apparently, Rivera has not yet received a response from USARPERCEN regarding his corrected status. Prior to submitting his Application for Correction, Rivera appealed the RO’s decision to the Board. The Board denied the claim on February 21, 2001, finding Rivera’s military service did not meet the threshold eligibility requirements for pension benefits. The Board noted that Rivera was not certified by the Department of the Army as member of the AUS. Rivera appealed that decision to the Veterans Court, arguing additionally that the Board failed to comply with the Veterans Claims Assistance Act of 2000 (‘VCAA”), Pub. L. 106-475, 114 Stat. 2096. The Veterans Court affirmed the decision of the Board and found the arguments that the Board failed to comply with the VCAA to be unpersuasive. Rivera timely appealed and we have jurisdiction pursuant to 38 U.S.C. § 7292(d)(2). *944DISCUSSION This court shall hold unlawful and set aside any regulation or interpretation thereof (other than a determination as to a factual matter) that was relied upon in the decision of the Veterans Court that this court finds to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right; in excess of statutory jurisdiction or in violation of a statutory right; or without observance of procedure required by law. See 38 U.S.C. § 7292(d)(1) (2000). Chapter 15 of Title 38 of the United States Code notes that a veteran is entitled to pension benefits “if such veteran served in the active military, naval, or air service.... ” 38 U.S.C. § 1521(j) (2000). “The term Veteran’ means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2) (2000). “For the purpose of establishing entitlement to pension, ... the Department of Veterans Affairs may accept evidence of service ... if ... [t]he evidence is a document issued by the service department.” 38 C.F.R. § 3.203(a) (2002). The service department’s decision on matters of service is conclusive and binding on the VA. Soria v. Brown, 118 F.3d 747, 749 (Fed.Cir.1997). Rivera’s Official Statement of Military Service certifies that he served as a member of the Philippine Commonwealth Army, including the recognized guerrillas. His name does not, however, appear on the roster of individuals determined to have acquired AUS status. The Veterans Court properly noted that this certification is binding, see id., and subsequently denied pension benefits to Rivera. The analysis, however, need not have gone that far. Rivera is barred from receiving pension benefits by both statute and regulation: Service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces ... shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces, except benefits under— $ $ $ ‡ ‡ $ chapters 11, 13 (except section 1312(a)), 23, and 24 (to the extent provided for in section 2402(8)) of this title. 38 U.S.C. § 107(a) (2000) (emphasis added). Commonwealth Army of the Philippines. Service is included, for compensation, dependency and indemnity compensation, and burial allowance, from and after the dates and hours, respectively, when they were called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, U.S. Army, pursuant to the Military Order of the President of the United States dated July 26, 1941. Service as a guerrilla under the circumstances ... is also included. 38 C.F.R. § 3.40(c) (2002) (emphasis added) Rivera is seeking pension benefits under 38 U.S.C. § 1521(j). He is not entitled to these benefits. The controlling statute indicates that service in the Commonwealth Army of the Philippines, even while in the service of the U.S. Armed Forces, does not *945qualify as “active service” for the purpose of acquiring any benefits. See 38 U.S.C. § 107(a). Similarly, the controlling regulation indicates the benefits to which Rivera is entitled to as a member of the Commonwealth Army of the Philippines are limited to “compensation, dependency and indemnity compensation, and burial allowance.” 38 C.F.R. § 3.40(c). Pension benefits under Title 38, Chapter 15, are not allowed. Rivera’s citation to Guerrero is noted, but his reliance upon it is misplaced. This court will not attempt to square the facts of Guerrero with those of this case. As a threshold matter, in Guerrero, our sister circuit ordered the Department of the Army to change the certification of a former member of the Philippine Army to that of a member of the AUS. It did not, however, order any governmental agency to award benefits to a person who was otherwise not entitled to those benefits. In the face of the applicable statute and regulation, a decision on this court’s part to grant pension benefits to Rivera would improperly do just that. The RO noted that were Rivera able to have his certification changed, the VA would reconsider his entitlement. Thus, for Rivera to be considered for pension benefits, he must obtain a change in his certification from the service department. In this case, the VA is powerless to change this certification. See Soria, 118 F.3d at 749 (“[I]f the United States service department refuses to verify the applicant’s claimed service, the applicant’s only recourse lies within the relevant service department, not the VA.”). Whether a change in Rivera’s status would remove him from the purview of 38 U.S.C. § 107(a) and 38 C.F.R. § 3.40(c) is an issue not before this court, and we will not speculate on its outcome. Rivera does contend that the VA is, at a minimum, required to assist him in his effort to get a correction of his AUS status under the VCAA. “The [VA] shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the [VA].” 38 U.S.C. § 5103A(a) (2000). In this case, the VA had the certification report when its decision was made. Although the VA’s reliance on it was unnecessary in light of the statute and regulation above, Rivera’s certification report described his military service in sufficient detail to allow the VA render a decision. No additional evidence was necessary. Therefore, for the reasons stated above, we affirm the decision of the Court of Appeals for Veterans Claims. COSTS No costs.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217509/

PER CURIAM. Donella Lewis seeks review of a final decision of the Merit Systems Protection Board (“MSPB” or “Board”), in Docket No. NY-0351-02-0176-1-1, 2002 WL 31189231 (Aug. 26, 2002), dismissing her appeal to the Board for lack of jurisdiction. Because we find that the Board properly concluded that Ms. Lewis has failed to *947demonstrate that it had jurisdiction over her appeal, we affirm. I Ms. Lewis was employed by the United States Postal Service in the position of Time and Attendance Clerk until March 8, 2002, when her position was abolished at the Elizabeth, New Jersey Post Office. Prior to the time her position was abolished, Ms. Lewis applied for preference eligible status based on her husband’s service-connected disability. To qualify for such status, the wife of a veteran with a service-connected disability must show that her spouse is “unable to qualify for any appointment in the civil service or in the government of the District of Columbia.” 5 U.S.C. § 2108(3)(E). Ms. Lewis’ application was denied. In a January 31, 2002, appeal to the Board, Ms. Lewis requested review of the Postal Service denial of her request for preference eligible status, presumably relating to her separation, as well as a decision by the Equal Employment Opportunity Commission “involving discrimination intertwined with prohibited personnel practice^] and a violation of the Merit System principles.” The Board has jurisdiction over Postal Service employees who appeal certain personnel actions if the employee is preference eligible or is barred from membership in a collective bargaining unit.1 On March 4, 2002, the Administrative Judge issued an Order to Show Cause that the Board had jurisdiction over Ms. Lewis’ appeal. The Order stated that, to establish jurisdiction, Ms. Lewis must demonstrate: 1) that she was a preference eligible employee, a management or supervisory employee or an employee engaged in personnel work in other than a purely nonconfidential clerical capacity and therefore ineligible for bargaining unit membership; and 2) that she had completed one year of current, continuous service in the same or a similar position. The Order also informed Ms. Lewis that she bore the burden of proving that the Board had jurisdiction over her appeal. In a June 17, 2002, initial decision, the Administrative Judge dismissed Ms. Lewis’ appeal for lack of jurisdiction. The Administrative Judge noted that, in a previous decision, the Board had concluded that Ms. Lewis’ husband had voluntarily retired. Lewis v. United States Postal Serv., 82 M.S.P.R. 254, 256 (1999). He also noted that her husband’s prior allegations of constructive suspension were dismissed pursuant to a settlement agreement. Finding that Ms. Lewis had not provided new or additional evidence or any persuasive arguments relevant to this issue, the Administrative Judge concluded that Ms. Lewis had failed to demonstrate that her husband’s retirement was involuntary. The Administrative Judge went on to determine that a certification from the Department of Veteran Affairs stating that her husband was considered partially disabled did not, standing alone, demonstrate that he was “unable to qualify for any appointment in the civil service or in the government of the District of Columbia.” 5 U.S.C. § 2108(3)(E). The Administrative Judge had also previously noted that the Board decision in Lewis indicated that, in making his claim of constructive suspen*948sion, Ms. Lewis’ husband indicated that he considered himself fit to continue working. 82 M.S.P.R. at 256. Because Ms. Lewis apparently introduced no new evidence and because he found her arguments to lack merit, the Administrative Judge concluded that Ms. Lewis had failed to demonstrate by a preponderance of the evidence that her husband was unable to qualify for work in any civil service or District of Columbia government job and, therefore, that she had failed to carry her burden of establishing the Board’s jurisdiction over her appeal. On July 15, 2002, Ms. Lewis petitioned for review of the Administrative Judge’s initial decision. In her petition, she raised for the first time an argument that the Board had jurisdiction to hear her case because she was “an employee of the Postal Service engaged in personnel work in other than a purely nonconfidential clerical capacity” under 39 U.S.C. § 1005(a)(4)(A)®). On August 26, 2002, the Board issued a final order denying the petition for review because it concluded “that there is no new, previously unavailable, evidence and that the Administrative Judge made no error in law or regulation that affects the outcome.” See 5 C.F.R. § 1201.115(d). This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). II We must affirm a decision of the Board unless we find it to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Whether the Board has jurisdiction to adjudicate an appeal is a question of law that we review de novo. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed.Cir.1999). As petitioner, Ms. Lewis has the burden of establishing the Board’s jurisdiction by a preponderance of the evidence. See Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed.Cir.1998). On appeal, Ms. Lewis contends that the Administrative Judge erred in concluding that her husband’s retirement had not been involuntary. Citing Flanagan v. Young, 228 F.2d 466, 472 (D.C.Cir.1955), she also claims that the Board’s decision violates the precept that the Veterans’ Preference Act should be interpreted, whenever possible, in favor of the veteran. She also appears to contend that the Board erred in failing to grant her petition for review because she presented new evidence that would have affected the outcome of her case. Finally, Ms. Lewis asks this court to conclude that she was “an employee of the Postal Service engaged in personnel work in other than a purely nonconfidential clerical capacity” under 39 U.S.C. § 1005(a)(4)(A)(ii), and therefore entitled to Board review. We find no merit to Ms. Lewis’ contention that the Administrative Judge erred in concluding that she failed to demonstrate that her husband’s retirement was involuntary. Ms. Lewis appears to argue that her husband’s constructive suspension forced him to retire, rendering his retirement involuntary. Even if this were true, Ms. Lewis does not explain how a finding that her husband’s retirement was involuntary would lead to the conclusion that he is or was “unable to qualify for any appointment in the civil service or in the government of the District of Columbia.” 5 U.S.C. § 2108(3)(E). However, to the extent that this question is relevant, we note that the Board concluded in Lewis that Ms. Lewis’ husband’s retirement was voluntary. 82 M.S.P.R. at 256. The Board also found that a record of her husband’s visit to a Veterans Administration facility for treatment indicated that he was fit for “light duty.” Id. at 258. More*949over, we conclude that Ms. Lewis’ contention that her husband would have been able to continue working had he not been constructively suspended implies that her husband was not “unable to qualify for any appointment in the civil service or in the government of the District of Columbia.” 5 U.S.C. § 2108(3)(E). Therefore, we agree with the Administrative Judge that Ms. Lewis has failed to demonstrate either that her husband’s retirement was involuntary or that any of the facts surrounding her husband’s retirement demonstrate that he, at the relevant time, met the requirements of 5 U.S.C. § 2108(3)(E).2 With respect to her claim that the Board’s decision violates the precept that the Veterans’ Preference Act should be interpreted, whenever possible, in favor of the veteran, we find Ms. Lewis’ argument inapposite. The Administrative Judge correctly interpreted the statutory provisions before him. We cannot discern, nor does Ms. Lewis point to, any issue of interpretation that could lawfully have been resolved in her favor. Similarly, we find no merit to Ms. Lewis’ contention that the Board ignored material new evidence in denying her petition for review. The “evidence” cited by Ms. Lewis consists entirely of facts and changes in circumstances immaterial to her case interspersed with new arguments. Accordingly, we conclude that the Board did not err in denying Ms. Lewis’ petition for review. Finally, it appears that Ms. Lewis requests this court find that she was “an employee of the Postal Service engaged in personnel work in other than a purely nonconfidential clerical capacity” under 39 U.S.C. § 1005(a)(4)(A)(ii), and therefore that she was entitled to review by the Board.3 We cannot make this determination. This alternate alleged basis for jurisdiction was raised for the first time in Ms. Lewis’ petition for review. The Board generally will not consider arguments raised for the first time in a petition for review absent a showing that they are based on new and material evidence not previously available despite the party’s due diligence. Banks v. Dep’t of the Air Force, 4 MSPB 342, 4 M.S.P.R. 268, 271 (1980); see also Timberlake v. United States Postal Serv., 76 M.S.P.R. 172, 175 (1997); but see Anthony v. Dep’t of Justice, 76 M.S.P.R. 45, 51 (1997) (Where an Administrative Judge has not provided an appellant with sufficient notice that he or she must address a particular issue or of the required burden of proof, the Board considers such newly-raised arguments on the basis that they were previously unavailable.). We find that the Administrative Judge’s Order to Show Cause provided Ms. Lewis sufficient notice both as to the manner in which she could establish jurisdiction and that she bore the burden of doing so. We therefore conclude that her argument was not “previously unavailable.” Accordingly, the Board properly declined to address Ms. Lewis’ new argument. We will not generally review arguments that were not properly presented to the *950Board. See Synan v. Merit Sys. Prot. Bd., 765 F.2d 1099, 1101 (Fed.Cir.1985). Thus, Ms. Lewis’ recourse was to convince the Board to reopen the case despite her failure to raise this argument at an earlier time. See Timberlake, 76 M.S.P.R. at 173, 175. Because the Board chose not to take this action to address Ms. Lewis’ argument, it is not properly before us and we do not decide it. Having reviewed the remainder of Ms. Lewis’ arguments and finding them to lack merit, we affirm the decision of the Board. . Under 5 U.S.C. § 7701(a), an "employee” may appeal an adverse personnel action to the Board. Included in the definition of "employee” under 5 U.S.C. § 7511(a)(1)(B) are Postal Service employees who are preference eligible and have "completed 1 year of current continuous service in the same or similar positions.” See Mathis v. United States Postal Serv., 865 F.2d 232, 232-33 (Fed.Cir.1988). A Postal Service employee may also be entitled to review of adverse actions if he or she is legally disqualified from collective bargaining unit membership as set forth in 39 U.S.C. § 1005(a)(4)(A)(ii). See Carrier v. Merit Sys. Prot. Bd., 183 F.3d 1376, 1378 (Fed.Cir.1999). . Although it is unclear to what extent Ms. Lewis raises the issue in her appeal, we agree with the Administrative Judge that the demonstration that her husband was partially-disabled was insufficient, on its own, to demonstrate that he was "unable to qualify for any appointment in the civil service or in the government of the District of Columbia” as required by 5 U.S.C. § 2108(3)(E). . We note that this final argument was not expressly presented in Ms. Lewis’ informal brief, but rather was incorporated by reference to a letter attached to her notice of appeal.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217511/

JUDGMENT PER CURIAM. This CAUSE having been heard and considered it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217512/

Opinion CLEVENGER, Circuit Judge. Bell Communications Research, Inc. (“Bellcore,” now known as Telcordia Technologies, Inc.), appeals the judgment of the United States District Court for the District of Delaware, granting judgment of noninfringement of United States Patents No. 4,893,306 (“ ’306 patent”) and No. 4,835,768 (“’768 patent”) to FORE Systems, Inc. (“FORE,” now known as Marconi Communications, Inc.). Bell Communications Research, Inc. v. FORE Sys., Inc., No. 98-586-JJF (D.Del. Sept.21, 2000), amended, No. 98-586-JJF (D.Del. Sept.21, 2001). FORE cross-appeals to contest two of the district court’s claim construction rulings on the ’306 patent. We vacate the judgment of noninfringement of the ’306 patent, affirm the judgment of noninfringement of the ’768 patent, dismiss the cross-appeal, and remand the case for further proceedings. BACKGROUND Both the ’306 and ’768 patents relate to multiplexed data transmission protocols. The ’306 patent is concerned with a method of dynamic time division multiplexing (DTDM), in which a single transmission line is shared among several data sources by allocating discrete segments, or “frames,” of the bit stream to each data source. Rather than pre-assign partitions of the bit stream to each data source, the system described by the patent allocates frames to each data source dynamically, depending on the priority of each data source and whether each data source has data available for transmission. According to the disclosure of the ’306 patent, the bit stream is formed by generating a train of DTDM frames, each consisting of a “transmission overhead field” that contains information about the frame and marks its boundary, and a “payload field,” which is initially empty. Incoming source data streams are broken into discrete segments, or packets, each of which has a header identifying from which data source it originates. Specialized “framer” circuits in a DTDM assembler then insert the packets individually into available payload fields of the DTDM bit stream, with priority among the data sources determined automatically by the proximity of each data source’s framer to the origin of the empty bit stream. The ’768 patent is addressed to a slightly different form of multiplexing, employed with a signal hierarchy termed SONET (Synchronous Optical Network). SONET transmissions are structured around an 810-byte frame, which the parties refer to *953as a “base-level” frame. The lowest rate of SONET communication, STS-1, transmits data at 8,000 base-level frames per second, for a serial bit transmission rate of 51.84 megabits per second. Higher rates of data transmission are achieved by interleaving multiple STS-1 frames together into a larger, “higher-level” frame. These higher-level frames are referred to generally as STS-N frames; a particular designation (such as STS-24) means a frame with that number of STS-1 frames interleaved. The ’768 specification discloses circuitry and algorithms to perform steps in preparation for separating STS-N signals into lower-level frames. In particular, the specification describes two preliminary functions that may be performed by high-speed integrated circuits. The first function is conversion of the incoming serial data stream to parallel (byte-wide) form, also referred to as synchronization of byte formatting. In order to format the serial bit stream into data bytes with the appropriate byte registration, the protocol described in the specification identifies a signature byte, FI, that appears once in each STS-1 frame. Identification of the FI byte in the bit stream allows the circuitry to divide the incoming bit stream into bytes with the same boundaries as the bytes of the original transmission. The second function disclosed in the specification is the identification of a “benchmark” occurring once in each higher-level frame. In a SONET STS-N frame, this benchmark is the three-byte sequence F1F2F2, marking the transition between the interleaved FI framing bytes and the interleaved F2 framing bytes of the STS-1 frames. The ’768 specification teaches that the F1F2F2 benchmark may be used to determine the boundaries of frames in the bit stream, and discloses circuitry that monitors each frame for the F1F2F2 benchmark in order to ensure that byte synchronization is maintained. Bellcore filed suit against FORE for infringement of the ’306 and ’768 patents, as well as two counts for infringement of other patents that have been dismissed. FORE counterclaimed, asserting noninfringement, invalidity, and unenforceability. The district court held a Markman hearing, and issued an opinion and order construing disputed claim terms, with a supplemental order on a means-plus-function claim of the ’306 patent. After the district court construed the claims, Bellcore advised the court that it could not prevail under the court’s claim construction. Bellcore requested that the court either certify an interlocutory appeal under Rule 54(b), or enter judgment of noninfringement and dismiss FORE’s counterclaims without prejudice as moot. Bellcore did not identify precisely which claim constructions precluded infringement. Over FORE’s opposition, the” district court complied with Bellcore’s request, entering judgment of noninfringement in favor of FORE and dismissing FORE’s counterclaims without prejudice as moot. The object of this exercise was to permit early review by this court of the claim constructions that precluded Bellcore from asserting infringement of the ’306 and ’768 patents. FORE protested the form of the judgment, because Bellcore had not identified the relevant claim constructions that would be disputed on appeal. In response, Bell-core stipulated that the construction given to three limitations of the ’306 claims and a portion of the ’768 claim 13 preamble precluded a finding of infringement. The district court then granted FORE’s motion to amend the judgment “to incorporate [Bell-core’s] ... concessions.” Bellcore appeals the judgment of noninfringement entered against it, based on the *954district court’s claim constructions identified in Bellcore’s stipulations. Bellcore also appeals other claim constructions which do not appear to have been addressed in the stipulations. FORE cross-appeals to argue additional claim limitations of the ’306 patent that were construed against it below, stating that its cross-appeal is conditional upon this court resolving the appeal on the ’306 patent in Bellcore’s favor. We exercise jurisdiction over the appeals pursuant to 28 U.S.C. § 1295(a)(1). I Claims 1, 3, and 4 of the ’306 patent are at issue in this appeal. Because the district court construed the terms of claims 1, 3, and 4 in conformity with each other, all the issues disputed by the parties are common to all three claims. Essentially all of the disputed language appears in claim 1: 1. A method for simultaneously transmitting data from sources having different bit rates in a telecommunication network comprising the steps of: generating a bit stream comprising a sequence of frames, each of said frames including a transmission overhead field containing frame timing information and an empty payload field, and filling the empty payload fields in said frames with data in packetized format from a plurality of sources which have access to the bit stream including circuit or packet sources, such that data in packetized format from any of said sources is written into any available empty payload field of any of said frames for transmitting data from each of said sources at its own desired bit rate via said bit stream and for transmitting data from said plurality of sources simultaneously via said bit stream. As a question of law, we review the district court’s claim construction without deference. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1174 (Fed.Cir.1998) (en banc). In light of Bellcore’s stipulation that it cannot establish infringement without prevailing on its claim construction arguments, we confine our review to the district court’s claim construction rulings. A The first and most salient dispute over construction of the ’306 claims is whether a complete frame must be generated before a framer may begin filling it with data (FORE’s position), or whether the framer can begin filling the “front” part of the frame with data while the “rear” end is still being generated (Bellcore’s position). Although the district court’s claim construction does not explicitly require that a “complete” frame must be generated before the payload fields are filled with data, we accept the parties’ interpretation that the district court so held. Thus, the question before us is whether the first claim step (“generating”) must be completed, for at least one frame, before the second step (“filling”) can begin. We conclude that it does not. FORE, citing several cases in which we have construed method claims to require sequential performance of their steps, seems to suggest a general principle that method claims should be construed to require sequential performance of their recited steps. The precise question here is not whether the first step must be performed before the second step is performed, but whether it must be completed before the second step is begun. Regardless, as we recently reiterated in Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1369-71, 65 USPQ2d 1865, 1869-70 (Fed.Cir.2003), the steps of a method claim need *955not be performed in the order written unless logic, grammar, or the content of the specification dictates otherwise. See also Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1342, 59 USPQ2d 1401, 1416 (Fed.Cir.2001) (“Unless the steps of a method actually recite an order, the steps are not ordinarily construed to require one.”). In the case of the ’306 patent, neither logic, grammar, nor the specification compels the conclusion that “generating” must be complete before “filling” may begin. It is undisputed that some “generating” must precede “filling,” because at least part of a frame must be generated before it can begin receiving data. But unlike railroad boxcars, in which filling of a partially generated car might pose some problems, frames are capable of receiving data even if they are only partially generated. Consequently, logic does not demand that the filling process must wait until the rear boundaries of the frame have been generated. Nor does grammar demand such a result. Because both “generating” and “filling” are continuous and concurrent processes in the method of the claims, it makes little sense to speak of the generating process being “complete” before filling begins. Indeed, as Bellcore notes, a strict grammatical requirement that the first step be complete before the second begins would lead to an unreasonable interpretation of the claim. The first step of the claim recites generation not of a single frame, but a “bit stream comprising a sequence of frames.” If the first step must be completed before the second step begins, then all the frames, not just one, must be generated before any data may be inserted into the bit stream. While such a mode is theoretically possible, it would be manifestly unsuitable for continuous transmission of data in a telecommunications network. Nor does the specification teach that generating must be completed before filling can begin. It is fair to say that the specification is silent on the subject of whether frames are generated “byte-by-byte,” as Bellcore suggests, or whether complete frames are generated before data insertion begins, as FORE contends. FORE argues that Figures 2 and 4 of the specification indicate that empty frames must be generated before they can be filled. However, we agree with Bellcore that Figure 2 depicts the claimed process only schematically, not literally. While Figure 2 does show a train of pre-generated frames entering a “DTDM assembler,” Figure 2 obviously does not attempt to explain how frames arise, because Figure 2 shows frames arriving from an undepicted source. Moreover, despite FORE’s argument to the contrary, Figure 4 of the patent clearly depicts a “DTDM assembler” comprising a framer (52) that generates empty frames. Thus, to interpret Figure 2 literally would set it at odds with Figure 4: Figure 4 indicates that a “DTDM assembler” generates empty frames internally, instead of receiving them from an external source as depicted in Figure 2. Figures 2 and 4 therefore do not compel FORE’s interpretation. Nor does the specification describe any circuitry or algorithm that would delay the filling process until a complete empty frame was generated or received, or any indication that frames are passed from framer to framer as frame-long chunks of data rather than byte-by-byte. Such features might be expected if FORE’s interpretation were correct. However, the specification does disclose a feature that would allow a framer to begin filling frames before generation was complete. According to the specification, each frame *956comprises a “transmission overhead field” containing information about the contents of the frame. Included in the overhead field may be a flag indicating whether the frame is empty or full. ’306 patent, col. 6, 11. 61-65. Because the transmission overhead field is shown preceding the payload field in the bit stream, see id. Fig. 1, a framer can determine whether an incoming frame is “empty” or “full” when it receives the overhead field, even if the remainder of the frame has yet to be generated. Accordingly, the embodiment described in the specification permits a framer to begin inserting data once it has received the overhead field and the first bytes of the payload field, without complete generation of an empty frame. This description supports Bellcore’s interpretation. Finally, FORE contends that Bellcore limited itself to a “sequential” interpretation of the claims during prosecution. When distinguishing the pending claims from the prior art (the Baran reference), Bellcore described the claimed method as “first generating a bit stream comprised of frames,” and “then” inserting packets “into the empty payload fields of the irames.” Statements in the prosecution history will limit claim terms to exclude interpretations disclaimed during prosecution. Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576, 34 USPQ2d 1673, 1676-77 (Fed.Cir.1995). However, no such disclaimer took place here. The Baran reference which Bellcore was traversing used a completely different system of multiplexing. Bellcore did not disclaim coverage to concurrent generating and filling to overcome Baran, nor did Bellcore distinguish Baran by arguing that its invention required complete generation of the frames before filling could begin. The prosecution history therefore does not address whether generation of an entire frame must be completed before filling begins. In summary, neither precedent, grammar, logic, specification, nor prosecution history dictates that a complete frame be generated before the filling process may begin. Given that the specification discloses features of the overhead field that would permit filling to begin before generation is complete, it would be error to impose upon the claims a requirement that filling cannot begin until one or more empty frames are generated completely. We therefore agree with Bellcore that the claims encompass the insertion of data into a frame’s empty payload field while the frame is still being generated. B The second dispute over construction of the asserted claims of the ’306 patent concerns the requirement imposed by the district court that “two or more empty frames are filled at the same time by different data sources.” The district court drew this requirement from the preamble language, “for transmitting data from said plurality of sources simultaneously via said bit stream.” The dispute, as presented by the parties, is whether this limitation requires two or more data sources to be inserting data into empty frames at the same moment in time. We agree with Bellcore that data sources need not insert data into empty frames at the same moment in time. The claim speaks not of simultaneous insertion of data into empty payload fields, but of the simultaneous transmission of data from several sources in the bit stream. Perhaps the term “simultaneously” is ambiguous because it could refer either to events taking place at the same moment in time, or to events that both take place within a defined interval of time. But reference to the specification unquestion*957ably shows that the latter meaning is correct. The entire ’306 patent is directed to time division multiplexing, and the essence of time division multiplexing is that a single communications line transmits the signals from two or more sources by allocating sequential portions of the bit stream to the competing input sources. ’306 patent, cols. 1-2, 5. While any given point of the bit stream is dedicated exclusively to a single input source, over an interval of time (determined by the bit rate of the slowest data source) the bit stream will carry data from all the input sources. Hence, a time division multiplexed signal carries several input signals “simultaneously” without regard to the precise timing of data insertion. The district court drew the opposite conclusion-interpreting “simultaneously” to mean at the same moment in time-from the specification’s single use of the term “simultaneously” to describe the operation of demultiplexing circuitry. ’306 patent, col. 13, 11. 49-51. But this portion of the specification refers to an entirely different aspect of the invention. Moreover, as Bellcore notes, the disclosure nowhere suggests that data is inserted into two or more empty frames at the same moment in time. According to the specification, the timing with which interface units insert data into the bit stream is controlled solely by whether the interface unit has data stored in its FIFO, and whether upstream interface units have left empty frames available in the bit stream. Id. col. 9, 11. 50-53; col. 7, 11. 46-61. There is no mention of any mechanism to coordinate simultaneous insertion of data. FORE points out that it is possible for multiple data sources to insert data simultaneously into the bit stream, if two or more interface units have data stored in their FIFOs and have empty frames positioned in their framer units at the same time. But of course, a claimed invention is not limited to a particular mode of operation simply because it is capable of operating in that mode. We conclude that “simultaneously” in the claim preamble refers to the capability of the multiplexed bit stream to carry signals from multiple sources during a finite interval, not to any requirement that several data sources must be inserting data into empty frames at the same instant in time. C The third issue raised by Bellcore illustrates the difficulties posed by what are essentially interlocutory appeals from district courts’ claim construction orders. The district court construed “empty payload field” to mean that “a frame’s payload has zero data in it,” rejecting Bellcore’s argument that “empty payload field” means any condition representing an absence of source data. Bellcore is not certain exactly what the district court meant by “zero data.” Nonetheless, Bellcore has appealed the district court’s construction of this term, stating that it cannot prevail if the district court actually meant “no bit signals of any kind” when it said “zero data.” We decline to play Prophetes to the district court’s Pythia. At oral argument, FORE stated its understanding that “zero data” encompasses various bit signals that might maintain the stated transmission rate of a bit stream, including “placeholders” or “garbage bits.” Because Bellcore conceded noninfringement only under a definition of “zero data” restricted to “no bit signals of any kind,” the parties’ agreement on a broader meaning for “zero data” removes this limitation as grounds for non-infringement, at least at this stage of the proceedings. We need not speculate further on the district court’s meaning, nor *958refíne its construction of this limitation any further on appeal. D FORE’s cross-appeal addresses two additional limitations appearing in the ’306 claims, “bit stream” and “frame timing information.” We dismiss the cross-appeal, sua sponte, as improper. The district court entered judgment of noninfringement in favor of FORE and dismissed FORE’s counterclaims as moot. FORE has not objected to this procedure on appeal. A prevailing party has no right of cross-appeal, Lindheimer v. III. Bell Tel. Co., 292 U.S. 151, 176, 54 S.Ct. 658, 78 L.Ed. 1182 (1934), and a defendant who prevails on noninfringement has no right to bring a “conditional” cross-appeal to challenge claim construction rulings. Bailey v. Dart Container Corp. of Mich., 292 F.3d 1360, 63 USPQ2d 1319 (Fed.Cir.2002). Yet FORE, despite its prevailing party status, is entitled to argue those claim constructions on which Bellcore prevailed as alternative grounds for affirming the district court’s judgment. United States v. Am. Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924); Bailey, 292 F.3d at 1362, 63 USPQ2d at 1320. However, we cannot determine from FORE’s submissions whether the district court’s judgment of noninfringement could be upheld if we were to agree with FORE’s additional claim construction arguments. Bellcore has not conceded noninfringement under the two claim constructions advocated in FORE’s cross-appeal, and FORE makes no attempt to demonstrate that a ruling in its favor would preclude Bell core from establishing infringement of the ’306 patent. FORE’s argument on “frame timing information,” in which FORE argues for a broad construction while Bellcore argues for a narrow one, may even be directed to one of FORE’s dismissed invalidity counterclaims. We will not resolve disputes which we cannot relate to a case or controversy under the patent laws, and we therefore decline to address the claim construction arguments made in FORE’s cross-appeal. FORE is not precluded from disputing the district court’s construction of these limitations in the future. II Claim 13 of the ’768 patent is the only claim asserted by Bellcore against FORE. We think that both parties have misconstrued claim 13. Claim 13 recites a method operating on a serial data bit stream consisting of a continuum of an interleaved multiplicity of data bytes of predetermined size derived from a plurality of identically-formatted contributory frames each containing a plurality of said data bytes. The parties assert in their briefs that claim 13’s “contributory frames” are “base-level” frames that may be interleaved into a higher-level frame, i.e. STS-1 frames that may be interleaved into an STS-N frame. However, the claim speaks of only one kind of frame, and those frames might well be “contributory” to the recited bit stream instead of “contributory” to unrecited higher-level frames. Further, step (e) of claim 13 refers to identifying a “contiguous plurality of bytes” present in “each of said contributory frames.” In the context of the SONET benchmark identification process disclosed by the specification, the “contiguous plurality of bytes” is the sequence F1F2F2. This sequence is present in each STS-N frame, but not in an STS-1 frame. ’768 patent, col. 5, 11. 47-62. Indeed, the entire utility of using the F1F2F2 signal as a benchmark rests on the principle that the F1F2F2 sequence repeats once each STS-N frame. Id. col. *9595, 11. 53-57. This disclosure cannot be reconciled with the parties’ interpretation of step (e), which equates “contributory frame” with “base-level frame.” We think this inconsistency reflects not a “glitch” or “mistake” in the claim (as suggested by the parties), but an error in the premise that “contributory frame” means “base-level frame.” Nonetheless, at oral argument, both parties were steadfast in their insistence that “contributory frames” in claim 13 means base-level frames such as STS-1, not higher-level frames such as STS-N. Accordingly, rather than impose our own interpretation of “contributory frame” upon the case, we will decide the claim construction dispute on the grounds set forth by the parties, and under their definition of “contributory frame” as a base-level frame. Bellcore advances, again with some uncertainty, the view that the district court limited claim 13 to require “pre-existing contributory frames.” In terms of the SONET protocol, this translates to a requirement that STS-1 frames exist as distinct entities prior to being interleaved into an STS-N frame. On the premise that the district court so limited the claim, Bellcore argues that the district court erred. We affirm the district court’s claim construction. The district court’s claim construction order makes clear that it did require the “bit stream” in question to have been formed from pre-existing base-level frames. The district court stated that the preamble of claim 13: means taking multiplexed STS-N frames and separating them into the original STS-1 frames that were previously combined to create the STS-N frames. The serial bit stream that is being demultiplexed must have been formed by interleaving the bytes of two or more contributory frames. This language clearly indicates that the base-level frames must have had a separate existence prior to being interleaved into a higher-level frame. Regardless of whether the district court was correct to require the actual separation of the higher-level frame into its base-level constituents, or whether the district court limited claim 13 to the SONET protocol, we hold that under the parties’ definition of “contributory frame” the district court correctly required the bit stream to have been formed from pre-existing contributory frames. We agree with FORE that this conclusion must follow from the preamble phrase “derived from a plurality of identically-formatted contributory frames.” “Derive” is best defined here as “to have or take origin: ORIGINATE: STEM, EMANATE.” Webster’s Third New International Dictionary 608 (1993). A thing cannot originate from a source that has never existed. Consequently, a bit stream cannot be derived from base-level frames unless those frames first existed. Bellcore presents from the same dictionary the competing definition “to trace the origin, descent or derivation of,” and argues that this definition supports a broader reading of “derived.” However, Bellcore has put forth a definition of “derive” in its transitive sense rather than its intransitive one, and simple grammar precludes Bell-core’s interpretation. In claim 13’s preamble, the subject of “derived” is “bit stream,” or perhaps “data bytes,” and “derived” as a transitive verb would require a direct object not to be found in the claim language. Put more simply, the bit stream or data bytes of the preamble are not busy “tracing” their origin or descent, or being so traced, from anything. Claim 13 refers to a method of multiplexing, not a method of genealogy. *960Having concluded that the plain meaning of “derived from” supports FORE’s position, we find no indication that the term actually means “following the format of,” as Bellcore contends. The specification is not particularly concerned with how the bit stream was generated, although as FORE and the district court noted, the descriptions of multiplexing and demultiplexing in the specification do refer to assembly of the bit stream from STS-1 frames, and its disassembly into STS-1 frames. ’768 patent, col. 1,11. 37-44; col. 4, 11. 9-13; col. 5, 11. 45-47. But while the algorithms disclosed in the specification might function properly on a bit stream formatted as if it were assembled from STS-1 frames, we find no indication in the specification that the claim language “derived from a plurality of identically-formatted contributory frames” has any meaning other than its plain meaning. The district court therefore correctly construed this claim language to require that the bit stream be assembled from two or more pre-existing base-level frames. Bellcore’s stipulation of noninfringement, or at least that portion of it which the parties have provided to us, does not speak directly of a requirement for preexisting base-level frames. However, Bell-core concedes that it must prevail on all its claim construction arguments in order to prevail on each patent, and Bellcore has unequivocally framed the dispute in terms of whether claim 13 requires the bit stream to be generated from pre-existing base-level frames. Moreover, from what meager information we have regarding the accused device, it appears that FORE’s system does not build up a bit stream from pre-existing base-level frames. The district court’s entry of judgment of noninfringement of claim 13 of the ’768 patent may therefore be sustained on the basis of this holding alone. In light of this disposition, we need not address the other claim construction issues raised by Bellcore in its appeal. CONCLUSION For the reasons set forth above, we affirm the district court’s judgment of non-infringement of the ’768 patent, but vacate the district court’s judgment of noninfringement of the ’306 patent and remand the case for further proceedings. We dismiss FORE’s cross-appeal as improper. COSTS No costs.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217515/

ORDER The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules and as ordered by the Court in its order dated January 30, 2003, requiring payment by March 31, 2003; IT IS ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217546/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Thomas M. Pressley appeals the district court’s order accepting the recommendation of the magistrate judge and granting summary judgment in favor of his former employer, the South Carolina Department of Corrections, on his claims arising under Title YII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1994 & Supp.2002), and the Family Medical Leave Act, 29 U.S.C. §§ 2601-2654 (2000). We have reviewed the record and find no reversible error. Accordingly, *152we affirm on the reasoning of the district court. See Pressley v. South Carolina Dep’t of Corrections, No. CA-00-3965-6-24-BG (D.S.C. Sept. 30, 2002). 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224365/

ORDER ON DEFENDANT CAL WATER’S MOTION TO DISMISS ANTHONY W. ISHII, Senior District Judge. This is an environmental law case that arises from the chemical contamination of property surrounding a dry cleaning business in Visalia, California. Plaintiffs (collectively “Coppola”) have brought suit against inter alia the California Water Service Company (“Cal Water”). The Court previously dismissed the Third and Fourth Amended Complaints under Rule 12(b)(6) following motions filed by inter alia Cal Water. The active complaint is the Fifth Amended Complaint (“FAC”). Now before the Court is Cal Water’s motion to dismiss the FAC. For the reasons that follow, the motion will be granted in part and denied in part. GENERAL BACKGROUND From the FAC, Coppola owns the real property and the dry cleaning business, One Hour Martinizing, located at 717 West Main Street (“717 W. Main”), Visalia, California. Since 1995, Martin has owned the real property located at 110 North Willis Street (“HO N. Willis”), Visalia, California. 110 N. Willis currently houses office space and is located within 0.08 miles of 717 W. Main. Millers Dry Cleaners previously operated at 110 N. Willis and was owned by Defendants Harley and Cheryl Miller. Based on judicially noticed documents, Millers Dry Cleaners began operation in 1959. Millers Dry Cleaners is no longer in operation. At 119 South Willis Street (“119 S. Willis”), Visalia, California is another dry cleaning facility, Paragon Cleaners. 119 S. Willis is located 0.1 miles from 717 W. Main. Cal Water owns and operates public drinking water systems throughout California, including the City. Cal Water owned and operated Well CWS 02-03 (“the Well”) until 2005, at which time it was abandoned by Cal Water. In 2000, however, Cal Water stopped operating the Well because of increasing levels of PCE. The Well is located 20 feet east of 717 W. Main. On October 28, 2009, the California Department of Toxic Substances Control (“DTSC”) informed Coppola that it was investigating the occurrence of tetraehlo-roethylene, also known as perchloroethy-lene (“PCE”), in the soil and groundwater at 717 W. Main. PCE is a hazardous substance. Apparently, it was later determined that the soil and groundwater both at and near 717 W. Main was contaminated with PCE. Coppola alleges that the PCE was released due to the dry cleaning activities at *965119 S. Willis and 110 N. Willis. Coppola also alleges that Cal Water’s operation of the Well led to the release of PCE. Coppola seeks damages from the Defendants, including contribution and indemnification, associated with soil and groundwater contamination. RULE 12(b)(6) FRAMEWORK Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiffs “failure to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). A dismissal under Rule 12(b)(6) may be-based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.2011); Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.2008). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Faulkner v. ADT Sec. Serrvs., 706 F.3d 1017, 1019 (9th Cir.2013); Johnson, 534 F.3d at 1122. However, complaints that offer no more than “labels and conclusions” or “a formulaic recitation of the elements of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Dichter-Mad Family Partners, LLP v. United States, 709 F.3d 749, 761 (9th Cir.2013). The Court is not required “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1145 n. 4 (9th Cir.2012); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). To avoid a Rule 12(b)(6) dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Dichter-Mad, 709 F.3d at 761. “Plausibility” means “more than a sheer possibility,” but less than a probability, and facts that are “merely consistent” with liability fall short of “plausibility.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Li v. Kerry, 710 F.3d 995, 999 (9th Cir.2013). Complaints that offer no more than “labels and conclusions” or “a formulaic recitation of the elements of action will not do.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Dichter-Mad, 709 F.3d at 761. The Ninth Circuit has distilled the following principles from Iqbal and Twombly: (1) to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively; (2) the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011). In assessing a motion to dismiss, courts may consider documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice. Dichter-Mad, 709 F.3d at 761. If a motion to dismiss is granted, “[the] district court should grant leave to amend even if no request to amend the pleading was made.... ” Henry A. v. Willden, 678 F.3d 991, 1005 (9th Cir.2012). However, leave to amend need not be granted if amendment would be futile or if the plaintiff has failed to cure *966deficiencies despite repeated opportunities. See Mueller v. Aulcer, 700 F.3d 1180, 1191 (9th Cir.2012); Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir.2010). CAL WATER’S MOTION TO DISMISS Defendant’s Argument Cal Water argues that CERCLA claims based on a “transporter” theory should be dismissed. Cal Water argues that, although Coppola’s factual allegations almost exclusively focus on a “transporter” theory, in the prior iterations of the Complaint Coppola locked themselves into a “past owner” theory under § 9607(a)(2). Coppola did not defend the “transporter” theory in opposing the first motion to dismiss, and did not make “transporter” allegations in the Third Amended Complaint. However, even if Coppola has not waived its “transporter” theory, the FAC fails to allege the necessary elements. There is no indication that PCE or PCE-contaminated water was “accepted” by Cal Water. Rather, the only manifest intent by Cal Water was to pull groundwater out of the environment. Although the FAC alleges that a disposal occurred while the Well was cycled off, the implication is that contaminants seeped through the Well accidently while the Well was not operating. Such conduct does not represent a volitional and intended acceptance. Finally, the FAC fails to allege that Cal Water actively participated in the selection of where to transport the PCE or that Cal Water had substantial input in that decision. In fact, there are no allegations that Cal Water was involved in any selection process or disposal decision of any kind. At best, the allegations suggest that Cal Water was no more than a mere conduit of the waste, which is insufficient for transporter liability. Cal Water also argues that CERCLA claims based on a “past owner” theory should be dismissed. Coppola previously admitted that they “are not making a cost recovery claim based on the water in Cal Water’s pipes .... “ Thus, to the extent that Coppola is now trying to make a claim based on movement of water in the Well, they are foreclosed from doing so based on their prior representations. Further, Coppola has failed to correct the defects identified by the Court in the last dismissal order. There must be allegations of a “disposal” at a “facility.” However, the FAC contains no factual allegations that the show a disposal occurred at the Well. Further, there are no allegations that suggest any type of discarding occurred at the Well. Instead, Coppola is reasserting the general “pumping theory” that was rejected by the Court in the last dismissal order. There are allegations that contaminated water moved into previously uncontaminated areas, but there is no allegation that the disposal was “at the Well” or that Cal Water owned or operated these previously uncontaminated areas. With respect to the claims for declaratory relief under 42 U.S.C. § 9613, such claims are dependent upon CERCLA liability under 42 U.S.C. § 9607. Because the FAC fails to allege CERCLA liability under either a “past owner” or “transporter” theory, Coppola’s claims for declaratory relief fail. Plaintiffs Opposition Coppola argues that dismissal of the transporter theory is inappropriate. Coppola argues that it has not forfeited any theories. Parties may make inconsistent and even contradictory allegations in their complaints, and amended complaints completely supersede the originals. Absent a showing of bad faith, a party is not bound by the four corners of a prior complaint. In terms of the elements of “transporter” liability, this case is similar to the Kaiser Aluminum case. Kaiser Aluminum held *967a contractor liable as a transporter because it transported contaminated soil to an uneontaminated portion of a single piece of property, even though the contractor was unaware that the soil contained contaminants. Nevertheless, the transporter engaged in a deliberate acceptance, movement, and depositing of waste/soil. That is, the deliberate movement of the contaminated soil constituted acceptance. Here, the FAC alleges an acceptance, movement, and depositing of waste which resulted in movement of PCE into the previously uncontaminated deeper groundwater zone. Cal Water acknowledges that its only manifest intent was to pull groundwater out of the environment, and the FAC shows that Cal Water’s own sampling and analysis of groundwater revealed increasing concentrations of PCE due to Cal Water’s active pumping. Because Cal Water continued to pump despite knowledge of the increasing PCE levels, Cal Water “accepted” the PCE. Cal Water was. not a mere conduit of waste, rather it actively participated in and had complete control of the selection decision. Cal Water’s prior invocation of the “useful product” defense is tantamount to an admission that Cal Water selected where the contaminated groundwater would be transported after Cal Water accepted it into the Well. Coppola also argues that dismissal of the past owner claims are inappropriate. Coppola argues that it is undisputed that the Well and the surrounding contamination plume constitutes a “facility” under CERCLA, and the FAC alleges that Cal Water is the former owner and operator of the Well and the surrounding area where Cal Water disposed of PCE. The FAC further alleges that Cal Water’s construction and operation of the Well “created a mechanism for the disposal, transport, release, and/or movement of PCE in groundwater, causing PCE to be transported to and disposed of at previously uncontaminated areas.” These allegations are in alignment with theories accepted in Kaiser Aluminum. Coppola indicates that Cal Water’s pumping activities resulted in three distinct outcomes for the PCE that was forcibly drawn downward from the shallow groundwater: (1) some PCE entered into the Well through its openings, was captured by the Well’s distribution system, and was distributed to Cal Water’s customers; (2) some PCE entered into the Well through its openings, was not captured by the Well’s distribution system, was not distributed to Cal Water’s customers, but was disposed of (i.e. released, deposited, leaked, and transported back out of the Well openings) into the deeper groundwater zone upon cessation of the Well’s active pumping; and (3) some PCE was forcibly lowered from the shallow groundwater to the deeper groundwater zone as affected by the Well’s radius of influence, was neither not captured by the Well nor entered the Well through openings, but was disposed of and remains in the deeper groundwater zone. With respect to the claims for declaratory relief under 42 U.S.C. §■ 9613, because the FAC properly alleges CERCLA liability under both “past owner” and “transporter” theories, the claims for declaratory relief do not fail. Relevant Allegations The Well was installed by Cal Water in 1922 and goes about 325 feet below the ground. See FAC ¶¶ 9, 61. Cal Water’s operation of the Well created a mechanism for the disposal, transport, release and/or movement of PCE in the groundwater, causing PCE to be transported to and disposed of at previously uncontaminated areas. See FAC ¶ 62. Cal Water’s operation of the Well caused PCE to be deposited, stored, disposed of, placed, or otherwise transported to, and come to be *968located at, previously uncontaminated areas. i See FAC ¶ 63. PCE was originally released near the Well from nearby properties, business, or utilities (“the Initial Release Points”) and migrated from the surface or near the surface through the soil to the “shallow groundwater,” which was about 100 feet below ground surface. See FAC ¶ 64. The shallow groundwater at and around the Initial Release Points and the Well naturally migrated horizontally and generally maintained a consistent depth below the ground surface. See FAC ¶ 65. Near the ground surface, and for a limited depth thereafter, the Well’s enclosure was solid. See FAC ¶ 66. However, as the Well’s casing continued its vertical descent, the casing had openings that allowed water to enter while pumping and to exit when the pump was not on. See id. When the Well was pumping, the water level was lowered and a gradient was created between the water in the shallow groundwater and the water in the Well. See FAC ¶ 67. Because water flows from high to low levels, this gradient caused water from the shallow groundwater zone to flow into the Well, carrying and depositing PCE in the deeper groundwater. See id. The lowering of the groundwater levels around the Well is referred to as the “cone of depression.” See id. Cal Water’s operation of the Well lowered the groundwater by about 50 feet, and the cone of depression around the Well caused the shallower PCE contaminated groundwater to move down the cone of depression and become deposited in and transported to previously uncontaminated areas. See FAC ¶ 68. Cal Water operated the Well intermittently, and cycled the pump on and off in response to water demand. See FAC ¶ 69. When the Well’s pump was cycled off, the PCE-contaminated groundwater that had been pulled into and near the Well, and that would have been pumped into the distribution system if the Well remained on at all times, was released into the environment, i.e. the PCE was transported to and deposited at the deeper groundwater by operation of the Well. See id. Cal Water’s operation of the Well forced the shallow PCE-contaminated groundwater to move, disperse, and/or release by way of vertical transport because the natural movement of the shallow groundwater at its original depth was disrupted by the Well’s construction and operation. See FAC ¶ 70. Once disrupted, the shallow groundwater and the PCE contained therein were transported down vertically and disposed at previously uncontaminated areas in and around the Well. See id. The pumping at the Well did not collect all the groundwater containing PCE, and the Well operations forcibly caused the contaminated groundwater to migrate vertically downward and come to be located and disposed of at previously uneontaminated areas at deeper depths. See FAC ¶ 71. This conduct created a deeper contamination plume of PCE, which would have otherwise been limited to the shallow groundwater zone. See id. Cal Water’s construction and intermittent pumping of the Well caused the PCE-contaminated groundwater to move, disperse, and/or release thereby being placed into previously uncontaminated areas, which is a “disposal” under 42 U.S.C. § 9601(29). See FAC ¶ 73. Cal Water’s construction, ownership, and operation of the Well has caused the movement and dispersal of PCE from a contaminated area, i.e. the shallow groundwater zone, to move vertically downward to previously uncontaminated depths, which qualifies as a “transport” within the meaning of 42 U.S.C. § 9601(26), and renders Cal Water a “transporter” under 42 U.S.C. § 9607(4). See FAC ¶ 74. *969Prior to 2000, Cal Water tested and detected PCE in increasing concentrations. See FAC ¶ 75. PCE was detected at 0.4 (xg/L in 1992, at 1.0 ¡xg/L in 1997, at 4.6 |xg/L in 1999, and 4.9 |xg/L in 2000. See id. The detection of 4.9 jxg/L was found at the intake of the Well, and confirms that PCE of greater than 5 ¡xg/L was dragged into deeper, previously uncontaminated groundwater. See id. Since at least 1992, Cal Water was aware of the risks of the presence of PCE in the Well, but continued to unreasonably supervise, control, and operate the Well, with knowledge that the active cycling of the pump of the Well would cause the release of PCE. See FAC ¶ 76. Cal Water knew or should have known that the increasing levels of PCE in the Well meant that it was moving, dispersing, and releasing PCE into deeper groundwater, which would not have otherwise naturally occurred at that depth. See FAC ¶ 77. Cal Water failed to take reasonable precautions to safely operate the Well to prevent the transport and subsequent release of PCE from the Well into previously uncontaminated areas. See FAC ¶ 79. Legal Standard CERCLA is a strict liability statute in that it does not require culpable conduct, and it is interpreted liberally in order to achieve the goals of cleaning up hazardous waste sites promptly and ensuring that the responsible parties pay the costs of the clean-up. Voggenthaler v. Maryland Square, LLC, 724 F.3d 1050, 1061, 1064 (9th Cir.2013). To establish a prima facie claim for recovery of response costs under § 9607(a), a private-party plaintiff must demonstrate: (1) the site on which the hazardous substances are contained is a “facility” as defined by 42 U.S.C. § 9601(9); (2) a “release” or “threatened release” of any “hazardous substance” from the facility has occurred; (3) such “release” or “threatened release” has caused the plaintiff to incur response costs that were “necessary” and “consistent with the national contingency plan”; and (4) the defendant is within one of four classes of “potentially responsible parties” subject to the liability provisions of § 9607(a). City of Colton v. Am. Promotional Events, Inc.West, 614 F.3d 998, 1002-03 (9th Cir.2010); Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 870-71 (9th Cir.2001). A “release” is “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment....” 42 U.S.C. § 9601(22). CERCLA imposes strict liability for environmental contamination upon four broad classes of “potentially responsible parties.” 42 U.S.C. § 9607(a); Burlington Northern & Santa Fe Ry. v. United States, 556 U.S. 599, 608-09, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009). One of the four categories of potentially responsible parties is “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” 42 U.S.C. § 9607(a)(2); Voggenthaler, 724 F.3d at 1064. An “owner” is someone who holds title to the facility. Redevelopment Agency of City of Stockton v. BNSF, 643 F.3d 668, 679-81 (9th Cir.2011). An “operator” is one who “manage[s], direct[s], or conduces] operations specifically related to the pollution, that is, operations having to do with the leakage or disposal of the hazardous waste.” United States v. Bestfoods, 524 U.S. 51, 66-67, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998); BNSF, 643 F.3d at 680. The term “disposal” means: “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such [waste] or any constituent thereof may enter the environ*970ment or be emitted into the air or discharged into any waters, including ground waters.” 42 U.S.C. § 9601(29); Voggenthaler, 724 F.3d at 1064. Thus, for liability under § 9607(a)(2), “there must have been a ‘discharge, deposit, injection, dumping, spilling, leaking, or placing’ of contaminants [at the facility] during [the defendant’s] ownership.” Carson Harbor, 270 F.3d at 875; Coeur D’Alene Tribe v. Asarco, Inc., 280 F.Supp.2d 1094, 1112 (D.Idaho 2003); see 42 U.S.C. § 9607(a)(2). “Disposal” generally refers to the “affirmative act of discarding a substance as waste, and not to the productive use of the substance.” Carson Harbor, 270 F.3d at 877; 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1362 (9th Cir.1990). “Disposal” includes a defendant’s “movement and spreading of contaminated soil to uncontaminated portions of property,” and is not limited “to the initial introduction of hazardous material onto property.” Carson Harbor, 270 F.3d at 877 (describing Kaiser Aluminum & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1342 (9th Cir.1992)); see also United States v. CDMG Realty Co., 96 F.3d 706, 719 (3d Cir.1996). In determining whether there has been a “disposal,” the Ninth Circuit does not employ an “absolute binary ‘active/passive’ distinction,” but instead requires courts to examine “each of the terms [used by § 9601(29) ] in relation to the facts of the case and determine whether the movement of contaminants is, under the plain meaning of [those] terms, a ‘disposal.’ ” Carson Harbor, 270 F.3d at 879; see Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 178 (2d Cir.2003). Under this approach, the Ninth Circuit has found that the passive migration of contaminants through soil does not constitute a “disposal” because it does not fit within the plain meaning of § 9601(29)’s terms. Carson Harbor, 270 F.3d at 879-81. In contrast, the movement of contamination that results from human conduct is a “disposal.” Carson Harbor, 270 F.3d at 877; Kaiser Aluminum, 976 F.2d at 1342; Coeur D’Alene, 280 F.Supp.2d at 1112; see also Coppola v. Smith, 982 F.Supp.2d 1133, 1141 n. 1, 2013 WL 6000566, *7 n. 1 (E.D.Cal.2013). Another category of potentially responsible parties is “any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs....” 42 U.S.C. § 9607(a)(4); Kaiser Aluminum, 976 F.2d at 1343. “Liability as a ‘transporter’ is established by showing that a person accepted hazardous substances for transport and either selected the disposal facility or had substantial input into deciding where the hazardous substance should be disposed.” United States v. USX Corp., 68 F.3d 811, 820 (3d Cir.1995). “Transporter” liability may be imposed “for transporting hazardous material to an uncontaminated area of property, regardless of whether the material was conveyed to a separate parcel of land.” Kaiser Aluminum, 976 F.2d at 1343. However, a “transporter clearly does not select the disposal site merely by following the directions of the party with which it contracts,” since such a transporter acts only as “a mere conduit of the waste.” United States v. Davis, 261 F.3d 1, 55-56 (1st Cir.2001); Tippins Inc. v. USX Corp., 37 F.3d 87, 95 (3d Cir.1994). Discussion 1. “Transporter” Liability Under 12 U.S.C. § 9607(a)(1) In the order that dismissed the Third Amended Complaint,1 the Court required *971Coppola to specify into which category or categories of potentially responsible parties each defendant fit. See Coppola v. Smith, 935 F.Supp.2d 993, 1010 (E.D.Cal.2013) (“... the Court will require Coppola to eliminate the allegations that do not actually reflect the potentially responsible person theories that are being pursued against Martin (and all other defendants).”). In discussing Cal Water’s particular motion to dismiss, the Court reiterated that if “Coppola intends to pursue only one CERCLA theory of recovery against a defendant, then the allegations against that defendant should be confined to that single theory.... An amended complaint shall delete any non-applicable allegations and theories with respect to each defendant.” Id. at 1026. The Court also noted that Coppola’s opposition clarified that liability under § 9607(a)(2) was being pursued against Cal Water, although there was also a suggestion that Cal Water might also be liable under § 9607(a)(3) as an “arranger.” See id. at 1023, 1026 n. 17. When Coppola filed the Fourth Amended Complaint, they alleged only prior owner or operator liability against Cal Water. See Doc. No. 120 at ¶ 89. The Court later dismissed the Fourth Amended Complaint and identified deficiencies in the § 9607(a)(2) theory. See Coppola v. Smith, 982 F.Supp.2d 1133, 1141-44, 2013 WL 6000566, *6-*9 (E.D.Cal.2013). Because it was not clear that amendment would be futile, leave to amend was granted. See id. In the FAC, Coppola continues to allege liability under § 9607(a)(2), but for the first time now alleges and actively defends a claim under § 9607(a)(4). There is a significant procedural problem. In the last dismissal order, the Court did not grant Coppola leave to add the new transporter theory. When the Court granted Coppola leave to amend the Fourth Amended Complaint, it did so in order for Coppola to refine and address the identified deficiencies of the § 9607(a)(2) theory. No mention, either by the Court or by Coppola, was ever made of a transporter theory under § 9607(a)(4). The addition of the § 9607(a)(4) transporter theory is therefore outside the scope of the amendment permitted by the prior dismissal order. See id. ‘When a district court grants leave to amend for a specified purpose, it does not thereafter abuse its discretion by dismissing any portions of the amended complaint that were not permitted.” Raiser v. City of Los Angeles, 2014 WL 794786, *4, 2014 U.S. Dist. LEXIS 26306, *9-*10 (C.D.Cal. Feb. 26, 2014); see also Benton v. Baker Hughes, 2013 WL 3353636, *2-*4, 2013 U.S. Dist. LEXIS 94988, *8-*10 (C.D.Cal. June 30, 2013) (and cases cited therein). In addition to the above procedural problem, there are also substantive problems with the § 9607(a)(4) claim. A “transporter” under CERCLA is one who “accepts or has accepted a hazardous substance for transport to disposal or treatment facilities, incineration vessels or sites selected by such person .... ” 42 U.S.C. § 9607(a)(4). By the plain language of this statute, Coppola’s theory would boil down to the proposition that Cal Water accepted the PCE-contaminated water in order to move it to the deeper groundwater zone, which was a site that Cal Water had selected. Such a proposition is not supported by the FAC’s allegations. The FAC describes pumping water towards the Well, with some water being collected *972within the Well, and some water not being collected within the Well. If anything, there may be a colorable argument that water was transported to the Well (not to deeper groundwater zones) in order to be taken to the remaining portions of Cal Water’s delivery system. There are significant disconnects, both in terms of Cal Water “accepting” PCE-contaminated water to be transported to the deeper groundwater zone, and in terms of Cal Water selecting the deeper groundwater zone as the site to which it would be transporting PCE-contaminated water. Moreover, it is doubtful that Cal Water ever “accepted” the PCE-contaminated water for transport. For purposes of § 9607(a)(4), at least two courts have indicated that the owner of a well who pumps contaminated groundwater has not “accepted” a hazardous substance for transport. See KFD Enters. v. City of Eureka, 2010 WL 4703887, *3-*4, 2010 U.S. Dist. LEXIS 125135, *18-*19 (N.D.Cal. Nov. 12, 2010);2 Southern Cal. Water Co. v. Aerojet-Gen. Corp., 2003 WL 25537163, *3 n. 2, 2003 U.S. Dist. LEXIS 26534, *15 n. 2 (C.D.Cal. Apr. 1, 2003). It is true that the FAC uses the term “transport” many times. However, more than actual movement of a hazardous substance is required for “transporter” liability under § 9607(a)(4). The factual allegations must plausibly suggest that PCE-contaminated water was accepted to be transported to a selected site. Here, the FAC’s allegations do not plausibly allege “acceptance” or “selection” by Cal Water. This is the first time that Coppola has attempted to pursue and defend a “transporter” theory. Generally, the Court would permit amendment. However, this is the Fifth Amended Complaint, the transporter theory was not pursued in the Fourth Amended Complaint despite the Court’s admonition in the first dismissal order, the transporter theory exceeds the scope of the amendment permitted by the second dismissal order, and the allegations do not plausibly allege key elements of “transporter” liability. Given these considerations, Coppola’s transporter theory will be dismissed without leave to amend. See Royal Ins. Co. of Am. v. Southwest Marine, 194 F.3d 1009, 1017 (9th Cir.1999); Stein v. United Artists Corp., 691 F.2d 885, 898 (9th Cir.1982). 2. “Prior Owner or Operator” Liability Under 12 U.S.C. § 9607(2) a. The Well Cal Water’s motion is based largely on the argument that Coppola did not adequately cure the deficiencies that were noted in the second dismissal order. In the second dismissal order, the Court explained in relevant part: Coppola must allege facts that show a ‘disposal’ occurred ‘at the Well’ during Cal Water’s ownership or operation of the Well. That is, Coppola must allege that Cal Water discharged, deposited, injected, dumped, spilled, leaked, or placed PCE at or into the Well, such that the PCE at or in the Well could enter the environment. Further, given the nature of the term ‘disposal,’ there must be some indication that the PCE or the water containing the PCE was discarded by Cal Water. Coppola, 982 F.Supp.2d at 1141, 2013 WL 6000566 at *6. *973Coppola has made allegations that touch on the prior order’s discussion. Particularly noteworthy are the allegations in Paragraph 69. That paragraph reads: Cal Water operated [the Well] intermittently, cycling the pump on and off in response to water demand. When the pump in [the Well] was cycled off, the PCE contaminated groundwater that had been pulled into and near the Well and [that] would have been pumped into the distribution system if the Well remained on at all times and was released into the environment, i.e. the PCE was transported to and deposited at the deeper groundwater by Cal Water’s operation of [the Well]. FAC ¶ 69. Additionally, Paragraph 66 confirms that the Well had openings that allowed water to enter the Well during pumping and to exit when not pumping. FAC ¶ 66. Also, a gradient caused water to flow into the Well carrying and depositing PCE in deeper groundwater. FAC ¶ 67. Paragraph 69 is not entirely clear. With respect to water that had been “pulled into ... the Well,” one reasonable reading is that when the Well’s pump was turned off, PCE-contaminated water that had entered the well, but had not sufficiently entered the distribution system, “exited” the Well and ended up at the deeper groundwater zone. Such a reading is supported by Coppola’s opposition. Coppola’s opposition clarifies that one of the three outcomes of the PCE that was forcibly drawn downward from the shallow groundwater was that some PCE entered into the Well through its openings, was not captured by the distribution system, but was disposed of into the deeper groundwater zone upon cessation of pumping. See Doc. No. 195 at 5:18-21. That is, the PCE-contaminated water that was not captured by the distribution system was “released, deposited, leaked, and transported back out through the well openings and into the deeper groundwater zone adjacent to the Well’s openings.” Id. at 5:5-8. Because the opposition confirms one reasonable interpretation of Paragraph 69, the Court will read that paragraph as alleging that, once the Well stopped pumping, the PCE-contaminated water that had been drawn into the Well would “exit” the Well into the deeper groundwater zone. With this reading of Paragraph 69, and construing the factual allegations in the light most favorable to Coppola, see Faulkner, 706 F.3d at 1019, the Court is satisfied that Coppola has alleged a violation of § 9607(a)(2). The allegations show that PCE-contaminated water entered the Well during the pumping process. When the pumps stopped, PCE-contaminated water then exited through the Well openings. It is not entirely clear how the PCE-contaminated water exited the Well. However, given the definition of the term “disposal,” it is reasonably inferred that the PCE-contaminated water either “leaked” out of the Well openings or was “discharged” out of the Well openings.3 See 42 U.S.C. § 9601(29); cf. Carson Harbor, 270 F.3d at 879. Therefore, the allegations indicate that a “disposal” occurred “at the Well.” The FAC also adequately indicates “discarding.” With respect to “leaking,” the term “leak” implies that a substance is escaping from a container that was meant in part to contain that substance.4 Gener*974ally, if a substance is escaping, it is no longer stored and is no longer useful. Thus, leaking, whether intentional or not, is a type of discarding. With respect to “discharging,” the Well’s pump was cycled on and off to meet demand. See FAC ¶ 69. Presumably when the Well’s pump was off, Cal Water had sufficient water within its distribution system to meet demand, and no further water was needed at that time. If the water in the Well was then discharged by Cal Water, then the discharge was an expression of not needing the water. Such conduct is consistent with discarding.5 Cal Water is correct that there is more detail alleged in the opposition. The additional facts identified in the opposition would no doubt have made resolution of this motion easier. However, the level of detail in the opposition is not needed. The allegations in the FAC can reasonably be read as describing PCE-contaminated water that had entered the Well during pumping, and then exited the Well when the pump was cycled off. The opposition clarifies some ambiguities and supports a reading that was already possible. Cal Water argues that Coppola should be precluded from pursuing the theory that PCE-contaminated water “leaked” or was “discharged” from the Well because Coppola had earlier conceded that their claims were not based on the water in Cal Water’s pipes. This argument was rejected in the Court’s second dismissal order. See Coppola, 982 F.Supp.2d at 1143-14, 2013 WL 6000566 at *8-*9. The Court found that Coppola’s statements were made in the context of answering a “useful product” argument and distinguishing the case of Vernon Village, Inc. v. Gottier, 755 F.Supp. 1142 (D.Conn.1990), which involved customers who complained about being supplied with contaminated water. The Court remains unconvinced that Coppola’s statements amount to a concession that precludes them from pursuing this theory. See Coppola, 982 F.Supp.2d at 1143-44, 2013 WL 6000566 at *8-*9. Additionally, CERCLA’s definition of the term “facility” is broad and includes both “wells” and “pipelines or pipes.” See 42 U.S.C. § 9601(9). Thus, “pipes” are another type of “facility” in addition to “wells.” The FAC contains no allegations regarding Cal Water’s “pipes” or “pipelines.” In sum, the FAC adequately alleges a disposal at the Well, and dismissal is inappropriate at this time. b. Surrounding Area Paragraph 69 also discusses water that went “near” the Well. Coppola’s opposition clarifies that this refers to PCE-contaminated water that was pumped toward the Well but never actually entered the Well, and then went to the deeper groundwater zone. See Doc. No. 195 at pp. 5, 13. Coppola’s opposition also clarifies that it is alleging that Cal Water is a former owner and operator of the Well *975“and the surrounding area,” and that the Well and the “surrounding area” or “surrounding contamination plume” is a “facility.” See id. at pp. 8, 9. Coppola also states that Cal Water does not disagree that the Well and the surrounding area where PCE has come to be located constitutes a “facility.” See id. at p. 8. It is true that Cal Water’s motion did not initially address the “facility” issue. This is likely because the FAC’s focus is almost exclusively on “the Well.” The FAC alleges that the Well was a “facility,” and that Cal Water is the past owner and operator of the Well. See FAC ¶¶ 87, 96. Paragraph 63 does allege that Cal Water operated a facility that was located at Parcel No. 093-197-003 and included the Well, and that Cal Water’s activities extended the facility to previously uncontaminated areas where Cal Water deposited PCE. See FAC ¶ 63. However, this paragraph is unique. At no other point, either in the paragraphs relating to Cal Water or under the first cause of action, does the FAC clearly allege that anything other than the Well is the facility at issue. See FAC ¶¶ 64-104. Given the FAC’s clear focus on the Well, it is debatable whether there is sufficient notice of Coppola’s claim. Nevertheless, accepting that the “facility” at issue includes the Well and the surrounding area, there are problems. First, for a “disposal” to be found, there must be some indication that the owner or operator was discarding the substance at the “facility.” See Coppola, 982 F.Supp.2d at 1141-42, 2013 WL 6000566 at *6-*7. As discussed above, the FAC’s factual allegations are sufficient to infer a discarding of water that had entered the Well and later exited the Well into the environment. That is not the case for water that never entered the Well. No factual allegations have been identified that would indicate that the water that'had never entered the Well was nevertheless discarded by Cal Water. Second, the FAC and Coppola’s clarifications indicate that, in addition to the Well, it is actually the groundwater that was being “operated” by Cal Water. As the Court understands Coppola’s theory, it was the pumps that caused the groundwater to flow towards the Well, and then to other groundwater zones. In other words, the groundwater was manipulated by Cal Water. There are no allegations that deal with Cal Water operating land, and the factual allegations do not indicate that Cal Water did anything to the areas at which PCE came to rest or came to be located after migration. At this time, it appears to the Court that the “facility” that would be at issue may actually be a combination of the Well and the groundwater. However, at least one court has held that groundwater is not a “facility” within the meaning of CERCLA. See Castaic Lake Water Agency v. Whittaker Corp., 272 F.Supp.2d 1053, 1077 (C.D.Cal.2003). Third, Coppola has cited no cases involving wells that support their theory. In the CERCLA cases involving wells that have been cited, the theory that has been pursued is that the wells contained contamination or that the wells acted as conduits for hazardous substances to pass through into other groundwater zones. Contaminated water was actually in some part of the wells in these cases. Cf. Southern Cal. Water, 2003 WL 25537163 at *3-*4, 2003 U.S. Dist. LEXIS 26534 at *16 (wells contaminated with hazardous chemicals); Castaic Lake, 272 F.Supp.2d at 1057-58 (wells contaminated with perchlorate); Lincoln Properties v. Higgins, 823 F.Supp. 1528, 1532, 1538-39 (E.D.Cal.1992) (wells permitted PCE to travel between water zones through wells’ screens and cracks/breaks *976in the wells);6 cf. also KFD, 2010 WL 4703887, *1-*2, *4, 2010 U.S. Dist. LEXIS 125135, *11-*12, *19 (contaminated water passed through the monitoring wells’ screens to deeper groundwater zones, but holding that drilling through different groundwater zones made monitoring well owner an “operator”). No well cases have been cited where liability arose despite no hazardous substances actually entering or passing through the well. As part of them opposition to the first motion to dismiss, Coppola cited Employers Ins. of Wausau v. California Water Serv. Co., 2008 WL 3916096, 2008 U.S. Dist. LEXIS 65433 (NJD.Cal Aug. 25, 2008) to argue that their claims were not new or novel. See Doc. No. 101 at pp. 7, 9. Based on the allegations and the information before it, the Court agreed that the claims in Employers Ins. appeared to be similar to Coppola’s claims. See Coppola, 935 F.Supp.2d at 1025. Employers Ins. was an insurance coverage dispute between Cal Water and its insurer regarding two underlying lawsuits — California DTSC v. City of Chico7 and California DTSC v. Payless Cleaners. See Employers Ins., 2008 WL 3916096 at *1, 2008 U.S. Dist. LEXIS 65433 at *1. Employers Ins. described the two lawsuits as involving the “activities of pumping water and operating, monitoring, and shutting down of certain wells ... all purportedly contributed to the dispersal of the contamination in the groundwater.” Id. at *1, 2008 U.S. Dist. LEXIS 65433 at *5. DTSC’s theory against Cal Water in the City of Chico and Payless cases was that the wells acted as conduits both while the wells were running and after the wells were taken out of service. See id. at *2, 2008 U.S. Dist. LEXIS 65433 at *7. Employers Ins. also noted that the complaints in City of Chico and Payless each alleged that the wells contained contaminated water and released hazardous substances to the surrounding groundwater. See id. at *3-*4, 2008 U.S. Dist. LEXIS 65433 at *12-*13. The City of Chico and Pay less complaints expressly alleged that “[hazardous substances were present in the wells and were released from the wells into the environment.” See Doc. No. 105-2 at ¶22 and Doc. No. 412-2 at ¶ 20 in Employers Ins., Northern District of Cal. Case No. 5:06cv3002 RMW.8 Thus, the theory actually pursued against Cal Water in City of Chico and Payless by DTSC was similar to the theory pursued in Lincoln Properties — both involved PCE that had actually been in the wells, with the wells acting as conduits for the PCE to reach other groundwater zones. While aspects of City of Chico and Payless are certainly similar to this case, the “surrounding area” theory does not appear to be one of those aspects. This is the third motion to dismiss that has addressed liability based on § 9607(a)(2). In the last dismissal order, the Court discussed the Fourth Amended Complaint’s deficiencies and specifically *977addressed what was necessary to allege a “disposal” at a “facility.” See Coppola, 982 F.Supp.2d at 1141-42, 2013 WL 6000566 at *6-*7. The Court stated inter alia that the allegations must indicate discarding. The Court also expressed its concern over a theory that depended on PCE that “was never at/inside the Well.” See id. at 1143, 2013 WL 6000566 at *8. The “surrounding area” theory described in Coppola’s opposition does not assuage the Court’s concerns. Because Coppola has had three chances to properly plead a § 9607(a)(2) claim, and because the opposition has not adequately shown that amendment would be beneficial, dismissal of the “surrounding area theory,” i.e. claims based on water that did not enter the Well, will be dismissed without leave to amend.9 Mueller, 700 F.3d at 1191; Telesaurus, 623 F.3d at 1003. 3. Declaratory Relief — 4-2 U.S.C. § 9613 A claim for declaratory relief under 42 U.S.C. § 9613(g)(2) is dependent upon a valid 42 U.S.C. § 9607 claim. See Chevron Envtl. Mgmt. Co. v. BKK Corp., 880 F.Supp.2d 1083, 1091 (E.D.Cal.2012); Union Station Assocs., LLC v. Puget Sound Energy, Inc., 238 F.Supp.2d 1226, 1230 (W.D.Wash.2002). As discussed above, the FAC has alleged a plausible claim under § 9607(a) against Cal Water. Therefore, dismissal of Coppola’s § 9613 claim against Cal Water is inappropriate. See id. CONCLUSION Cal Water moves to dismiss the CERC-LA claims alleged against it. Dismissal without leave to amend of the § 9607(a)(4) transporter liability theory is appropriate because the FAC does not adequately allege “acceptance” or “selection,” Coppola did not allege a § 9607(a)(4) theory in their Fourth Amendment Complaint, and inclusion of that claim was beyond the scope of amendment permitted by the second dismissal order. Dismissal of the § 9607(a)(2) “surrounding area” theory without leave to amend is appropriate because there are inadequate factual allegations that indicate a discarding occurred, it appears that Coppola may be attempting to classify the groundwater as a “facility,” no cases involving wells have been cited that support this theory, and Plaintiffs have been given leave to amend on two prior occasions. Dismissal of the § 9607(a)(2) claim based on contaminated water that entered the well is inappropriate because the FAC has made sufficient factual allegations. Finally, because one § 9607(a) claim has not been dismissed, it is not appropriate to dismiss the § 9613 claim for declaratory relief. ORDER Accordingly, IT IS HEREBY ORDERED that: 1. Cal Water’s motion to dismiss the § 9607(a)(4) claim and the § 9607(a)(2) “surrounding area” *978claim are DISMISSED without leave to amend; 2. Cal Water’s motion to dismiss is otherwise DENIED; 3. Cal Water shall file an answer to the Fifth Amended Complaint within ten (10) days of service of this order; and 4. Within fourteen (14) days of service of this order, the parties shall contact Magistrate Judge McAuliffe’s chambers for the purpose conducting a scheduling conference. IT IS SO ORDERED. . Cal Water and Martin & Martin Properties each filed separate motions to dismiss the Third Amended Complaint. The Court resolved both motions in one order. . KFD noted that the allegations suggested a hazardous substance had seeped through the well by accident. However, KFD cited with approval Southern Cal. Water Co. for the proposition that a party that pumped contam-mated groundwater did not accept the hazardous waste. See KFD, 2010 WL 4703887 at *3-*4, 2010 U.S. Dist. LEXIS 125135 at *18-*19. . The Court is not holding that the “disposal” at issue can only be either "leaking” or "discharging.” Other methods of disposal, as defined by § 9601(29), may apply. The discovery process should reveal into which category of "disposal” the exiting water most accurately fits, if any. . Merriam-Webster’s on-line dictionary defines the verb "leak” in relevant part to mean: *974"to enter or escape through an opening usually by a fault or mistake”; "to let a substance or light in or out through an opening”; or "to permit to enter or escape through or as if through a leak.” See www.merriam-webster. com/dictionary/leak. . In its reply, Cal Water also argues that there are insufficient allegations of "discarding” and relies on a Supreme Court decision under the Clean Water Act that pumping polluted water from one part of a water body to another part of the same body is not a "discharge.” This argument should have been made in Cal Water’s original motion so that Coppola could have responded. Because it was first raised in the reply, the Court need not definitively address it at this time. However, the Court notes that the allegation is that the PCE-contaminated water exited the Well and went to a deeper groundwater zone, i.e. apparently a different body of water. .The Court notes that in their opposition to the first motion to dismiss, Coppola cited page 1538 of Lincoln Properties to support the assertion that “actively running well pumps to cause contamination to move and contaminate other aquifers or groundwater” is sufficient for one to be liable as an "operator.” See Doc. No. 101 at p. 6. However, at page 1538, Lincoln Properties discusses how the wells acted as conduits for pollution to travel to deeper groundwater zones, and the wells at issue were no longer used for water supply, but still remained a conduit for the PCE. See Lincoln Props., 823 F.Supp. at 1538-39. . The City of Chico matter had been consolidated with another case. . The Court takes judicial notice of these documents from the docket of the Northern District of California. See Fed.R.Evid. 201(b); Botelho v. U.S. Bank, N.A., 692 F.Supp.2d 1174, 1178 (N.D.Cal.2010). . To the extent that Coppola may be pursuing liability for releases or disposals "at,” "from,” or "near” the Well when the Well is the "facility” at issue, for CERCLA liability to attach, there must be a “release” that is "from the facility,” and in the case of a former owner or operator, there must be a "disposal” that is "at the facility.” See 42 U.S.C. § 9607(a)(2); City of Colton, 614 F.3d at 1002-03; Carson Harbor, 270 F.3d at 870. The focus is on “the facility,” it is not on the “area near the facility.” Coppola has cited no authority that indicates § 9607(a) encompasses liability for activity that occurs "near a ‘facility.’ ” Although some courts have indicated that it may be possible for a "facility” to cross boundary lines, see Louisiana-Pac. Corp. v. Beazer Materials & Servs., 811 F.Supp. 1421, 1431 (E.D.Cal.1993), that does not mean that liability will then extend to activity that occurs in an area that is not within the “facility.”

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224366/

ORDER LAWRENCE K. KARLTON, Senior District Judge. This matter concerns an employment law dispute between plaintiff Beth A. Bodi and defendants Shingle Springs Band of Miwok Indians (“Tribe”), Shingle Springs Tribal Health Program (“Health Program”), Shingle Springs Tribal Health Board (“Health Board”), and individual defendant Brenda Adams, a Tribe member. The gravamen of plaintiffs Second Amended Complaint is that she was wrongfully terminated due to her illness, in violation of state and federal law, includ*980ing the federal Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”). The action was initially filed in state court; defendants removed, and now move to dismiss under Fed.R.Civ.P. 12(b)(1), asserting lack of subject matter jurisdiction based on tribal sovereign immunity. Having considered the matter, the court will grant defendants’ motion to dismiss in part and deny it in part, for the reasons set forth below. I. BACKGROUND A. Factual Background Plaintiffs Second Amended Complaint (“SAC,” ECF No. 17) alleges as follows. Defendant Tribe is a federally-registered and recognized Indian tribe. (SAC ¶2.) Plaintiff is a Tribe member. (SAC ¶ 18.) Defendant Health Program operates the Shingle Springs Tribal Health Clinic. Defendant Health Board is responsible for governing the Health Clinic; the Health Board’s members, in turn, are appointed by the Shingle Springs Ranchería Tribal Council, the Tribe’s governing body (“Tribal Council”). (SAC ¶ 6.) From February 1997 through August 3, 2012, plaintiff was employed primarily by the Health Program; for approximately the last eleven of these years, she was its Executive Director, a capacity in which she reported to the Health Board. (SAC ¶¶ 18, 20, 21.) In June 2011, plaintiff was diagnosed with cancer. She alleges that prior to starting chemotherapy, she met with both the Health Board’s chairperson and the Tribe’s Human Resources Director. At this meeting, plaintiff indicated that she wanted to take unpaid, job-protected leave under the FMLA; she was told that she need not rely on the FMLA because she was in no danger of losing her job, and that she could take off as much time as she wanted. Plaintiffs chemotherapy regime successfully concluded six months later, in December 2011. (SAC ¶¶ 23-25, 28.) In mid-2012, plaintiff was given a performance evaluation, her first since 2000. The written evaluation was prepared by a Health Board member, and signed by both another Health Board member and the Tribe’s Human Resources Director. Plaintiff was advised that the evaluation covered the April 2011-April 2012 period (ie., a period encompassing the time during which plaintiff was diagnosed and treated for cancer). She was given an overall rank of 2 (on a scale of 1 to 5, with 5 being the most favorable); according to the evaluation, this level meant, “Serious effort is needed to improve performance.” (SAC ¶¶ 30-33, 37.) On June 28, 2012, shortly after she received this evaluation, plaintiff broke her ankle at work; the injury was extensive enough to require corrective surgery. Plaintiffs physicians placed her on temporary disability leave through July 24, 2012; her orthopedic surgeon later ordered her to remain off work till August 6, 2012. She also applied for FMLA leave, which she is informed and believes was in effect starting June 28, 2012. (SAC ¶¶ 40-42.) By letter dated August 1, 2012, plaintiff was informed that she was “hereby terminated from [her] employment with the Shingle Springs Band of Miwok Indians, Shingle Springs Tribal Health Program, effective immediately.” The letter stated that she was being terminated “for inadequate performance” because of alleged deficiencies occurring “during the last several months.” The letter also noted that the termination had “nothing to do with your request and use of Family Medical Leave. All actions referenced above occurred pri- or to your request for Family Medical *981Leave and the Board’s decision to terminate you from employment is strictly a business decision based on your inadequate performance, especially in light of the Program’s financial crisis.” (SAC ¶¶ 44-47.) Plaintiff believes she was terminated due to her objection to the termination of the Health Program’s Medical Director (who had complained about patient loads), her own complaints about patient loads, her calling of attention to troubling accounting irregularities at the Health Program, and her objection to the Tribe moving its Office of Tribal Administration to the Health Clinic. (SAC ¶¶ 58-56.) Around January 28, 2013, plaintiff was hired as Executive Assistant to the Tribal Council Chairman, a position that paid much less than her previous position as the Health Program’s Executive Director. (SAC ¶ 57.) On March 19, 2013, plaintiff sent defendants a communication complaining about her termination from the Health Program and expressing her willingness to seek redress in state court. Two days later, she was placed on administrative leave, and approximately three weeks later, she was terminated. (SAC ¶ 58.) B. Procedural Background On April 22, 2013, plaintiff commenced this action in the Superior Court of California for the County of El Dorado. (Notice of Removal, ECF No. 1.) On May 28, 2013, defendants removed to this court, asserting federal question jurisdiction under 28 U.S.C § 1331. (Id.) On July 12, 2013, plaintiff filed the operative Second Amended Complaint, which pleads claims under the FMLA and various state laws. On August 5, 2013, defendants filed the instant motion to dismiss. The basis of defendants’ motion is that the Tribe, as a federally-recognized tribal entity, is immune from suit, and that the other defendants are similarly immune due to their relationships with the Tribe. In opposition, plaintiff argues that Congress abrogated tribal sovereign immunity in enacting the FMLA; alternatively, she argues that defendants have waived immunity through their actions. The matter came on for hearing on March 3, 2014. The following day, the parties filed a joint stipulation (i) requesting that the court stay this matter pending the outcome of settlement discussions, and (ii) pledging to file a status report with the court no later than May 1, 2014. (ECF No. 49.) The court entered the parties’ requested order. (ECF No. 50.) On May 1, 2014, the parties notified the court that they were unable to reach a settlement, and requested that the court enter its ruling on the dismissal motion. (ECF No. 51.) II. STANDARD “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.1989). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). “The burden of establishing subject matter jurisdiction rests on the party asserting that the court has jurisdiction.” In re Wilshire Courtyard, 729 F.3d 1279, 1284 (9th Cir.2013) (citing McNutt v. GM Acceptance Corp., 298 U.S. 178, 182-83, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). A defendant may raise the defense of lack of subject-matter jurisdiction by motion pursuant to Fed.R.Civ.P. 12(b)(1). *982“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. In considering a facial attack, the court “determine^] whether the complaint alleges ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). “If the defendant instead makes a factual attack on subject matter jurisdiction, the defendant may introduce testimony, affidavits, or other evidence” and “[hinder these circumstances, ‘no presumptive truthfulness attaches to plaintiffs allegations.’ ” Terenkian, 694 F.3d at 1131 (quoting Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir.2009)). “In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Safe Air for Everyone, 373 F.3d at 1039. However, in the absence of a full-fledged evidentiary hearing, disputes as to the pertinent facts are viewed in the light most favorable to the non-moving party. Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996). An action should not be dismissed for lack of subject matter .jurisdiction without giving the plaintiff an opportunity to amend unless it is clear that the jurisdictional deficiency cannot be cured by amendment. May Dep’t Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir.1980). Defendants herein advance a facial attack regarding the absence of subject matter jurisdiction, contending that the court’s jurisdiction fails as a matter of law. They also attack subject matter jurisdiction on factual grounds, and have submitted extrinsic evidence in support of their motion. III. ANALYSIS A. Request for Judicial Notice Defendants request that the court take judicial notice of 78 Fed. Reg. 26384-26389 (May 6, 2013), a notice entitled “Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs.” According to a summary therein, this notice “publishes the current list of 566 tribal entities recognized and eligible for funding and services .... ” The list includes “Shingle Springs Band of Miwok Indians, Shingle Springs Ranchería (Verona Tract), California.” A fact may be judicially noticed if it is “not subject to reasonable dispute,” either because it is “generally known within the territorial jurisdiction of the trial court” or it is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). As the Federal Register is a source “whose accuracy cannot reasonably be questioned,” the court will take judicial notice that the Tribe is recognized as a tribal entity by the United States government. B. Background law re: tribal sovereign immunity “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueb*983lo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). “Absent congressional or tribal consent to suit, state and federal courts have no jurisdiction over Indian tribes; only consent gives the courts the jurisdictional authority to adjudicate claims raised by or against tribal defendants.” Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir.1989). “As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). The court would ordinarily turn to the question of whether, in enacting the FMLA, Congress authorized suit against Indian tribes, a topic as yet unaddressed by the Ninth Circuit. But this case’s unusual procedural posture instead raises the issue of waiver. C. Did the Tribe waive sovereign immunity by removing this action to federal court? On January 9, 2014, the court issued an order directing the parties to brief the following issues: Does an Indian tribe’s removal of an action to federal court constitute a waiver of sovereign immunity? How is the analysis affected by the fact that the plaintiff in the underlying action was a tribe member? (Order, ECF No. 40.) The parties filed opening briefs on January 23, 2014 (ECF Nos. 44, 45), and replies on February 6, 2014 (ECF Nos. 46, 47). As to the second question, both parties agree that “[c]ase law bearing on claims brought against a Tribe or tribal entity by a member of the Tribe have not touched on the issue of whether or not it makes a difference that the claimant is a Tribe member.” (Plaintiffs Opening Supplemental Brief 4, ECF No. 45.) Based on its research, the court concludes that the waiver issue is unaffected by plaintiffs status as a Tribe member. Accordingly, the court will address only the first question: whether tribes waive their sovereign immunity through removal to federal court. Defendants maintain that “appearing in a federal forum solely to advance a jurisdictional objection grounded in federal law — namely, to challenge the existence of any court’s jurisdiction to adjudicate the dispute on the basis of tribal sovereign immunity, as the Tribe proceeded here— certainly does not express the Tribe’s unequivocal consent to the federal court’s adjudication of the dispute required for a waiver of that immunity.” (Defendant’s Opening Supplemental Brief 1, ECF No. 44.) The Ninth Circuit has, as yet, not addressed the issue, but it has been reached by at least three district courts in this Circuit. They have reached different conclusions. In State Eng’r v. S. Fork Band of the Te-Moak Tribe of W. Shoshone Indians, 66 F.Supp.2d 1163, 1173 (D.Nev.1999) (Reed, J.), a Nevada district court found that removal to federal court constituted a “clear and unequivocal waiver” of tribal immunity. Much of the Nevada court’s reasoning rests on an analogy between tribal sovereign immunity and state sovereign immunity, and the order relies heavily on cases finding state waiver of sovereign immunity based on removal. Two other points about the case merit mention. First (as defendants herein are at pains to point out), the tribe in State Eng’r, by filing an answer, took affirmative litigation steps in federal court beyond removal; by contrast, defendant Tribe herein has to date only removed the case. Neverthe*984less, the Nevada court does not appear to have based its decision on that factor, finding only that “the Respondent Tribe’s join-der in removal of this case to this Court ... constitute^] a ... waiver of its tribal immunity.” Id. at 1173. The second point is that, in the Nevada court’s view, if the tribe did not waive immunity, “the proper remedy [was] not the dismissal that the [t]ribe requests, but remand to state court.” Id. While the order cites several district court decisions for this proposition, as well as Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (holding that district courts may dismiss a removed case for lack of personal jurisdiction without first ruling on the issue of subject matter jurisdiction), these cases do not appear to speak directly to the proposition advanced. Moreover, while 28 U.S.C. § 1447(c) provides, “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded,” the Ninth Circuit has held that where remand would be futile, a district court may simply dismiss the case. Bell v. City of Kellogg, 922 F.2d 1418, 1424-25 (9th Cir.1991). In other words, there does not appear to be supporting authority for this dicta regarding remand. In the next decision, Sonoma Falls Developers, LLC v. Dry Creek Ranchería Band of Pomo Indians, No. C-01-4125 VRW, 2002 WL 34727095, 2002 U.S. Dist. LEXIS 28087 (N.D.Cal. Dec. 26, 2002) (Walker, J.), the district court concluded that removal did not constitute a waiver of tribal immunity. That court instead determined that “at least in the context of finding waiver, Indian tribes are more akin to foreign sovereigns than to states,” id., and on this basis, declined to find waiver. The court in Ingrassia v. Chicken Ranch Bingo and Casino, 676 F.Supp.2d 953, 961 (E.D.Cal.2009) (Ishii, J.) relied heavily on Sonoma Falls in also concluding that removal does not trigger a waiver of tribal immunity. However, Judge Ishii was not definitive in reaching this conclusion, noting: At this point, the case law is not absolutely clear whether tribal sovereign immunity is more like the immunity enjoyed by the states or by foreign sovereigns in the circumstance of removal. There are a number of cases in which courts have applied tribal sovereign immunity after removal without addressing the issue. [Citations.] In other cases where tribes removed, courts have pierced immunity but not based on waiver from removal. [Citation.] These cases, in conjunction with Sonoma Falls, [supra,] leads to the conclusion that removal to federal court does not waive tribal sovereign immunity. However, the issue is not settled and appeal may be fruitful .... Unfortunately, no appeal was taken, and the issue remains undecided by the Ninth Circuit. The only on-point federal appellate decision appears to be Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1206 (11th Cir.2012), in which the panel noted that “the precise issue before us — whether an Indian tribe’s removal of a suit to federal court waives the tribe’s sovereign immunity — is one of first impression among the circuits .... ” The Contour Spa panel held that tribes do not waive their immunity by removing a case to federal court. Its principal reasons are as follows: • The panel distinguished Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (holding that the State of Georgia waived Eleventh Amendment immunity through re*985moval)1 on the grounds that “an Indian tribe’s sovereign immunity is not the same thing as a state’s Eleventh Amendment immunity” and that a tribe’s waiver of immunity “must be unequivocally expressed.” Contour Spa, 692 F.3d at 1206. • Instead, the panel analogized tribal immunity to foreign sovereign immunity. After quoting the Supreme Court for the proposition that “[l]ike foreign sovereign immunity, tribal immunity is a matter of federal law,” Kiowa Tribe, 523 U.S. at 759, 118 S.Ct. 1700, the Eleventh Circuit panel argued that “[m]uch like foreign sovereigns, Indian tribes have an interest in a uniform body of federal law in this area.” Contour Spa, 692 F.3d at 1207. • Ultimately, the panel was not inclined to force a tribe to “either fore-go its immunity from suit by removing the case or assert its immunity— itself a matter of federal law — only in state court.” Id. Defendants rely heavily on Contour Spa in their briefing. Having summarized the (unsettled) state of the law in this area, let us turn to the arguments presented. 1. Alleged forum-shopping Plaintiff claims that, in removing the case to this judicial district, defendants were engaged in forum-shopping. They point to a recent $30.4 million verdict in a jury trial against the Tribe in El Dorado Superior Court. Sharp Image Gaming, Inc. v. Shingle Springs Band of Miwok Indians, No. PC20070154. In that case, the Tribe (represented by the same counsel as herein) was allegedly unsuccessful in its efforts to remove to federal court. As the court informed plaintiffs counsel at hearing, it decides motions based on the facts presented and the law, and not on the basis of supposition. Accordingly, the court will disregard this argument entirely. 2. Comparisons to other forms of sovereign immunity As discussed above, other courts considering whether removal constitutes waiver of sovereign immunity rely heavily on comparisons between tribal sovereign immunity and the sovereign immunity enjoyed by states and by foreign nations. The court in State Eng’r, 66 F.Supp.2d at 1173, likened tribal sovereign immunity to state sovereign immunity and found waiver on that basis; the other three courts found analogies to foreign sovereign immunity more apt, and accordingly, declined to find waiver. The problem with this approach, in the court’s view, is that tribal sovereign immunity is sui generis, making such comparisons largely inapt. Tribal sovereign immunity is rooted in Chief Justice Marshall’s identification of tribes as “domestic dependent nations.” Cherokee Nation v. Georgia, 30 U.S. 1, 17, 5 Pet. 1, 8 L.Ed. 25 (1831). “The doctrine [of tribal sovereign immunity] was originally enunciated by [the Supreme] Court and has been reaffirmed in a number of cases.” Okla. Tax Comm’n v. Citizen Band of Potawatomi Indian Tribe of Okla., 498 U.S. 505, 510, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) (citing Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 63 L.Ed. 291 (1919); Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670). The contours of tribal sovereign immunity have largely been *986drawn by the Supreme Court, abrogated from time to time by Congressional action. By contrast, Congress provided foreign sovereigns with a statutory right of removal through enacting the Foreign Sovereign Immunities Act of 1976.2 While the court in Contour Spa, 692 F.3d at 1200, acknowledged this fact, it failed to satisfactorily explain why the absence of a statutory right of removal for tribes is not fatal to the comparison between the two forms of immunity, at least where waiver-through-removal is concerned. State sovereign immunity is, of course, a creation of the U.S. Constitution. See, e.g., Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991) (“[W]e have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty ... and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the ‘plan of the convention.’ ”). It goes without saying that Native American tribes did not voluntarily enter into the Union, which diminishes the utility of comparisons to the states in this regard. In light of the distinct foundations of tribal sovereign immunity, the court will not rely on analogies to these other forms of immunity in deciding this issue. 3. The availability of the sovereign immunity doctrine in multiple forums In its- order directing the parties to brief waiver-by-removal, the court noted that tribal sovereign immunity may equally be invoked in state and federal courts, and cited numerous California state cases in which tribes successfully raised an immunity defense. The existence of such cases would appear to put the lie to defendants’ assertions that removal to federal court is necessary in order to ensure uniformity in the law regarding tribal immunity. (Defendants’ Opening Supplemental Brief 5.) In fact, the very notion of a “uniform body of federal law in this area,” Contour Spa, 692 F.3d at 1207, is one of those notions that cannot withstand scrutiny. Because there is no dedicated removal statute for Indian tribes (as there is for foreign states), the defendants herein were only able to remove this action because plaintiff pled a federal claim along with her state claims. Defendants would otherwise have been left to raise immunity in state court. Countless cases share this procedural posture. In fact, at least one involved defendant Tribe: Shingle Springs Band of Miwok Indians v. Workers’ Comp. Appeals Bd., No. C032701, 2001 WL 1529124 (Cal.Ct.App. Sep. 26, 2001). There, a Health Clinic employee filed a workers’ compensation claim against the Tribe; the Tribe, in turn, asserted sovereign immunity as a defense. California’s Third District Court of Appeals agreed that the Tribe would ordinarily be immune from the administrative proceedings, but remanded to the Workers’ Compensation Appeals Board to determine whether the Tribe had waived immunity. The case illustrates the multiplicity of proceedings and forums in which tribes may raise sovereign immunity. The situation is quite different from that in, say, United States v. United States Fid. & Guar. Co., 309 U.S. 506, 60 S.Ct. 653, 84 *987L.Ed. 894 (1940) (finding that tribe did not waive its sovereign immunity against counterclaims by filing an action in federal court). There, the Supreme Court recognized that “[t]he sovereignty possessing immunity should not be compelled to defend against cross-actions away from its own territory or in courts, not of its own choice, merely because its debtor was unavailable except outside the jurisdiction of the sovereign’s consent.” Id. at 512, 60 S.Ct. 653. Here, by contrast, the defendants could just as easily have asserted sovereign immunity in state court. Accordingly, it is difficult to straightfacedly claim that encouraging the development of a “uniform body of federal law in this area” should be a dispositive factor, unless the “area” in question is the narrow slice of eases that are removable under 28 U.S.C. § 1441(a). The court sees no basis for drawing such a fine distinction. Defendants invoked the jurisdiction of the federal courts to raise a jurisdictional defense that could equally have been raised in the state court. As the court recognized in its January 9, 2014 Order, “there appears no principled reason for defendants to have removed the action before asserting immunity.” (ECF No. 40.) Defendants have advanced none in their briefing or at oral argument. The court therefore finds that the Tribe has unequivocally waived any claim of sovereign immunity through removal. And, as defendants Health Program, Health Board, and Brenda Adams’s assertions of sovereign immunity derive from the Tribe’s sovereign immunity, subject matter jurisdiction over plaintiffs claims against these defendants is also proper. The court nevertheless shares Judge Ishii’s hope that the defendants appeal this ruling so that a higher court may definitively resolve the issue. D. Are defendants’ objections regarding the unavailability of injunctive relief well-founded? Plaintiffs third claim, for violations of the FMLA and the California Family Rights Act, Cal. Gov’t Code §§ 12945.1 and 12945.2, seeks, inter alia: injunctive equitable relief against the current Health Board chairperson Brenda Adams, sued in her official capacity (or whomever is the chairperson of the [ ] Health Board at the time of entry of this Order) for reinstatement in her position as the Executive Director of the Shingle Springs Tribal Health Clinic. Plaintiff seeks the same job duties, rights, responsibilities, salary and benefits as she enjoyed prior to her August 2012 termination. (SAC ¶ 90.) The claim is brought against all defendants. Defendants, in turn, move to dismiss the claim on the grounds that granting the requested relief would infringe on the Tribe’s ability to govern itself in a purely intramural matter. This line of argument is inapt. “As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe, 523 U.S. at 754, 118 S.Ct. 1700. The objection that defendants advance is rooted in the first prong of this test. “[G]eneral Acts of Congress apply to Indians ... in the absence of a clear expression to the contrary.” Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 120, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960). The Ninth Circuit has “explicitly adhered to the Tusearora rule ... although [it] recognize[s] exceptions to it.” N.L.R.B. v. Chapa De Indian Health Program, Inc., 316 F.3d 995, 998 (9th Cir.2003). In particular: *988A federal statute of general applicability that is silent on the issue of applicability to Indian tribes will not apply to them if: (1) the law touches “exclusive rights of self-governance in purely intramural matters”; (2) the application of the law to the tribe would “abrogate rights guaranteed by Indian treaties”; or (3) there is proof “by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations .... ” In any of these three situations, Congress must expressly apply a statute to Indians before we will hold that it reaches them. Donovah v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir.1985) (quoting U.S. v. Farris, 624 F.2d 890, 893 (9th Cir.1980), cert. denied, 449 U.S. 1111, 101 S.Ct. 920, 66 L.Ed.2d 839 (1981)). The cases that defendants cite — EEOC v. Cherokee Nation, 871 F.2d 937, 938 (10th Cir.1989) (finding that the Age Discrimination in Employment Act did not apply to defendant tribe in part due to “reluetan[ce] to find congressional abrogation of treaty rights”); EEOC v. Fond du Lac Heavy Equip. & Constr. Co., 986 F.2d 246, 249 (8th Cir.1993) (refusing to apply Age Discrimination in Employment Act to dispute between tribe member and tribal employer, as doing so would “interfere! ] with an intramural matter that has traditionally been left to the tribe’s self-government.”); Pink v. Modoc Indian Health Project, 157 F.3d 1185 (9th Cir.1998) (holding that nonprofit formed by two tribes fell within scope of Title VU’s exemption of “tribe” from liability); Middletown Rancheria of Porno Indians v. Workers’ Comp. Appeals Bd., 60 Cal.App.4th 1340, 71 Cal.Rptr.2d 105 (1998) (finding that 28 U.S.C. § 1360 did not provide state administrative agency authority over dispute between tribe member and tribal employer); and EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1080 (9th Cir.2001) (determining that the ADEA did not apply to employment relationship between tribe member and tribal employer, which involved “ ‘purely internal matters’ related to the tribe’s self-governance.”) — all involve determinations of whether, and the extent to which, Congress authorized suit against Indian tribes. As such, they are irrelevant to the present inquiry. Given that the court has found that the Tribe waived its sovereign immunity through removal, it need not assess the extent to which Congress may have abrogated tribal immunity in enacting the FMLA. Defendants also move to dismiss this claim on the grounds that tribal officials cannot be sued for injunctive relief in an attempt to circumvent a tribe’s sovereign immunity, citing cases such as Dawavendewa v. Salt River Project Agrie. Improvement & Power Dist., 276 F.3d 1150 (9th Cir.2002) (“[Plaintiff]’s argument strikes us as an attempted end run around tribal sovereign immunity.”) in support. Again, defendants’ argument fails because the court has found that the Tribe waived its immunity through removal. E. Is plaintiffs claim for injunctive relief against the Chairperson of the Health Board cognizable? Defendants move to dismiss defendant Health Program from the action, arguing that it has no legal existence separate from that of the Tribe and the Health Board. In support, defendants submit the declaration of one Ernest Vargas, Jr., the Tribe’s Tribal Administrator and former Finance Director. (Decl. Vargas ¶ 1, ECF No. 20.) Vargas avers as follows: • “Since approximately 1995, the Tribe has operated a full-service health clinic. [ ... ] The Tribe’s health clinic, or program, is wholly owned by the Tribe, and has no corporate existence sepa*989rate from the Tribe, under federal, state, or tribal law.” (Id ¶ 20.) • “As Executive Director of the health program. Ms. Bodi was directly employed by the Tribe itself, and her earnings statements reflected that she was employed by the ‘Shingle Springs Ranchería,’ another name the Tribe has used to identify itself. Attached hereto as Exhibit EE are true and correct copies of Ms. Bodi’s earnings statements dated June 15, 2012, June 29, 2012, and July 13, 2012.” (Id. ¶21.) • “The Tribe runs the health clinic (or health program) through its Shingle Springs Tribal Health Board, a governmental unit comprised of nine directors selected from the Tribe’s membership and staffed and controlled by the Tribal Council, the Tribe’s governing body. At its sole discretion, the Tribal Council appoints Health Board directors and may remove them, with or without cause. The Health Board elects a Chairperson to preside at all meetings of the Board.” (Id ¶ 23.) • “ ‘Shingle Springs Tribal Health Program’ is registered with the State of California as a fictitious name by which the Tribe does business. Attached hereto as Exhibit FF is a true and correct copy of the Tribe’s Fictitious Business Name Statement for ‘Shingle Springs Tribal Health Program’ ... filed with the Office of the El Dorado County Clerk on July 24, 2012.” (Id. ¶ 24.) Plaintiff has failed to adduce any evidence to the contrary. It therefore appears that defendant Health Program must be dismissed from this action for lack of any legal existence independent of the Tribe and the Health Board. IY. CONCLUSION In light of the foregoing, the court hereby orders as follows: Defendants’ motion to dismiss Shingle Springs Tribal Health Program as a defendant is GRANTED. The remainder of defendants’ motion to dismiss plaintiffs Second Amended Complaint is DENIED. IT IS SO ORDERED. . The Ninth Circuit has adopted “a straightforward, easy-to-administer rule in accord with Lapides: Removal [by a State] waives Eleventh Amendment immunity.” Embury v. King, 361 F.3d 562, 566 (9th Cir.2004). . See 28 U.S.C. 1441(d) (“Any civil action brought in a State court against a foreign state ... may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending”).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224367/

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT GONZALO P. CURIEL, District Judge. Plaintiff Michael Hammitt (“Plaintiff”) brings this action for damages against Defendant Lumber Liquidators, Inc. (“Defendant” or “Lumber Liquidators”) for denial of overtime wages and meal breaks under California wage and hour laws, failure to reimburse necessary business expenses, *992and unfair business practices. (Dkt. No. 1.) Presently before the Court is Defendant’s motion for summary judgment on all causes of action alleged in Plaintiffs Complaint. (Dkt. No. 58.) The parties have fully briefed the motion, (Dkt. Nos. 72, 87), and have filed requests for judicial notice in support of their respective briefs. (Dkt. Nos. 61, 92.) The Court finds the matter suitable for resolution without oral argument pursuant to Local Civil Rule 7.1(d)(1). Based on a review of the briefs, supporting evidence, judicially noticeable facts, and the applicable law, the Court GRANTS in part and DENIES in part Defendant Lumber Liquidators’ Motion for Summary Judgment. (Dkt. No. 58.) PROCEDURAL BACKGROUND In September 2009, a putative class action complaint was filed against Lumber Liquidators in the United States District Court for the Northern District of California, titled Chavez et al. v. Lumber Liquidators, Inc., No. CV-0904812(SC). (Dkt. No. 58-5, Meekley Decl. ¶ 4.) The Chavez action sought relief on behalf of Lumber Liquidators Store Managers and non-exempt employees in California on six causes of action: (1) Failure to pay overtimes wages; (2) Failure to provide meal breaks; (3) Failure to pay accrued vested vacation; (4) Failure to reimburse employees for necessary business expenditures; (5) Failure to provide- itemized wage statements; and (6) Unfair business practices. (Id.; Dkt. No. 85-5, Meekley Decl. Ex. 3, Chavez action Second Amended Complaint.) On March 26, 2012, Judge Samuel Conti denied class certification in the Chavez action as to all claims except for the nonexempt employees’ claim for failure to include commissions in the overtime calculation. (Meekley Decl. ¶ 5; Dkt. No. 92-1, Request for Judicial Notice Ex. 1.) On July 12, 2012, Plaintiff Michael Hammitt filed an individual Complaint for damages against Defendant Lumber Liquidators in the above-captioned matter, alleging the following five causes of action: (1) Failure to pay overtime wages in violation of California Labor Code section 1194; (2) Failure to provide meal breaks in violation of California Labor Code section 226.7; (3) Failure to reimburse Plaintiff for expenses and losses incurred in the course of his employment in violation of California Labor Code section 2802; (4) Failure to maintain accurate payroll records in violation of California Labor Code section 226; and (5) Unfair, unlawful, and misleading business practices in violation of the California Unfair Competition Law (“UCL”), Cal. Bus. & Prof.Code § 17200 et seq. (Dkt. No. 1.) On January 17, 2014, Defendant Lumber Liquidators filed the present motion for summary judgment. (Dkt. No. 58.) FACTUAL BACKGROUND I. The Parties A. Lumber Liquidators Lumber Liquidators is a Delaware company selling “flooring products, including pre-finished and unfinished hardwood, laminate, and other flooring, as well as glue, moldings, and cleaning kits, in retail stores throughout California, including San Diego.” (Dkt. No. 58-1 at 2.) Beginning on February 3, 2004, Lumber Liquidators contracted with retail management company Anderson Lane Associates (“ALA”) to provide “labor and management services” related to the operation of Lumber Liquidators’ retail store located at 7930 Mira-mar in San Diego, California (“Store 40”). (Dkt. No. 58-3 ¶ 3, Éx. 1.) On January 11, 2007, Lumber Liquidators and ALA entered into a second Sales Agreement for the management of Store 40 (“2007 Sales *993Agreement”). (Id. ¶ 4, Ex. 2.) Under the terms of the 2007 Sales Agreement, ALA was responsible for providing “[a]ll labor, management, personnel and oversight required for the operation of the Stores including, among other things, sales, deliveries, inventory and warehouse activities.” (Id. Ex. 2 at ¶ 1(a)(1).) The 2007 Sales Agreement between Lumber Liquidators and ALA terminated on June 1, 2007. (Id. ¶ 5.) B. Plaintiff Michael Hammitt In February 2006, Plaintiff Michael Hammitt responded to an ALA advertisement for the “Assistant Store Manager” position in Lumber Liquidators’ Store 40. (Dkt. No. 58-6, Meckley Decl. Ex. 2, Ham-mitt Depo. at 44.) Richard Peck, Chief Executive Officer of ALA, hired Plaintiff for the Assistant Store Manager position. (Id. Ex. 3, Hammitt Depo. II at 24-25.) In August 2006, Store 40 Store Manager Doug Chambers “went to work for another client of Anderson Lane,” and ALA promoted Plaintiff to the “Store Manager” position. (Id. at 32.) On May 31, 2007,1 Plaintiff submitted an employment application to Lumber Liquidators for the Store 40 Store Manager position and became a direct employee of Lumber Liquidators on June 1, 2007. (Dkt. No. 58-8, Davis Decl. ¶ 5.) Plaintiff testified he understood “ALA’s contract had been bought out,” and while “day-today operation” did not change, Plaintiff was transferred from ALA’s payroll to Lumber Liquidators’ payroll. (Dkt. No. 75, Garcia Decl. Ex. C, Hammitt Depo. at 92.) II. Plaintiffs Employment at Lumber Liquidators A. Plaintiffs Responsibilities Plaintiff was employed by Lumber Liquidators in the Store Manager position at Store 40 until terminated on or about June 13, 2011. (Id.) It is undisputed that between June 1, 2007 and June 13, 2011, Lumber Liquidators classified Plaintiff as a salaried employee “exempt” from California wage and hour laws. During this time, it is undisputed that Plaintiff was the “highest ranking management employee” in Store 40, which is “a distinct and easily defined unit of [Defendant’s] retail operations.” (Dkt. No. 74 at 57.) Furthermore, the parties do not dispute that, at all times during his employment by Lumber Liquidators, Plaintiff “always supervised no fewer than two to four other employees” in the positions of Assistant Store Manager I, Assistant Store Manager II, or Warehouse Associate. (Id. at 59.) B. Plaintiffs Compensation Although Plaintiffs weekly workload changed over time, Plaintiff testified he regularly worked 70-80 hours per week at Store 40. (Dkt. No. 75-1, Garcia Decl. Ex. A, Hammitt Decl. ¶ 8.) While working as an Assistant Store Manager and Store Manager, Plaintiff received a fixed base monthly salary as well as an additional payment that varied from month to month. The parties dispute whether the variable payment is properly classified as a “commission” or a “bonus.” *994DISCUSSION I. Legal Standard Federal Rule of Civil Procedure 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby “secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. Id. at 322-23, 106 S.Ct. 2548. If the moving party fails to bear the initial burden, summary judgment must be denied and the court need not consider the nonmoving party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has satisfied this burden, the nonmoving party cannot rest on the mere allegations or denials of his pleading, but must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. 2548. If the non-moving party fails to make a sufficient showing of an element of its case, the moving party is entitled to judgment as a matter of law. Id. at 325, 106 S.Ct. 2548. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In making this determination, the court must “view[ ] the evidence in the light most favorable to the nonmoving party.” Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir.2001). The Court does not engage in credibility determinations, weighing of evidence, or drawing of legitimate inferences from the facts; these functions are for the trier of fact. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. II. Analysis Defendant moves for summary judgment, arguing Plaintiffs “Store Manager” position fell within both of two different exemptions to California’s overtime and meal break laws: the commissioned sales exemption and the executive exemption. Defendant argues that because Hammitt was an “exempt” employee, Hammitt is not entitled to recovery for overtime wages or meal breaks, and that his derivative inaccurate wage statement claim also necessarily fails. Defendant also moves for summary judgment on Plaintiffs “failure to reimburse” claim on the grounds that Plaintiff knew about Lumber Liquidators’ reimbursement policy but voluntarily chose not to submit expense reimbursement reports because he did not think it seemed worth the effort. In addition, Defendant argues Lumber Liquidators should not be liable for conduct prior to June 2007, because those claims are: 1) barred by the statute of *995limitations; and 2) based on a “joint employer” theory of liability. A. Withheld Overtime Pay Plaintiffs first cause of action seeks damages for Defendant’s alleged failure to pay overtime wages in violation of California Labor Code section 1194. Under California law, employees must be compensated with overtime pay for any work in excess of eight hours per day or in excess of forty hours in one week. Cal. Lab.Code § 510. California Labor Code section 515 provides that the Industrial Welfare Commission (“IWC”) may establish exemptions from section 510’s overtime compensation requirement. Defendant argues Plaintiff was properly classified by Lumber Liquidators as a an “exempt” employee pursuant to the IWC’s “commissioned sales” and “executive” overtime law exemptions. (Dkt. No. 58 at 1.) 1. Commission Sales Exemption Section 3(D) of the IWC’s Wage Order 4-2001 creates an exemption from the overtime requirements for employees paid through commission. This exemption provides that “[t]he [overtime] provisions of subsections (A), (B) and (C) above shall not apply to any employee whose earnings exceed one and one-half (If) times the minimum wage if more than half of that employee’s compensation represents commissions.” IWC Wage Order 4-2001, 8 CaLCode Regs. § 11040(3)(D). Although the wage order does not define the term “commission,” California Labor Code section 204.1 provides that “[c]ommission wages are compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.”2 Accordingly, for a compensation scheme to be deemed to constitute “commission wages,” two circumstances must apply: (1) the employees “must be involved principally in selling a product or service, not making the product or rendering the service”; and (2) the “amount of their compensation must be a percent of the price of the product or service.” Keyes Motors, Inc. v. Div. of Labor Standards Enforcement, 197 Cal.App.3d 557, 563, 242 Cal.Rptr. 873 (1987). The parties do not dispute the amount of compensation received by Plaintiff during this time period or the fact that Plaintiffs salary, at all relevant times, exceeded one and one-half times the minimum wage in California. (Dkt. No. 74 at ¶¶ 3-56.)3 However, the parties dispute whether the variable portion of Plaintiffs salary properly falls within the definition of “commission” under IWC Wage Order 4-2001, as defined by the court in Keyes Motors. (Id.) Defendant argues Plaintiffs salary meets the first requirement of the Keyes Motors definition for “commission” wages because Plaintiff “did actually sell products to customers,” (Dkt. No. 58-1 at 10), and *996that Plaintiffs other duties were “sales-related work” necessary for “selling a product or service.” (Dkt. No. 87 at 4-6) (citing Muldrow v. Surrex Solutions, 208 Cal.App.4th 1381, 1392, 146 Cal.Rptr.3d 447 (2012)). Plaintiff opposes, arguing sales were not his “primary duty” because he did not “spend the majority of his time making sales and because his job duties consist[ed] principally of manual labor.” (Dkt. No. 72 at 22) (citing Smalley v. Home Depot U.S.A. Inc., No. 11-cv-02951-JCS, 2013 WL 1402348 (N.D.Cal. Apr. 5, 2013)). Plaintiffs cited authority does not address the relevant standard. In Smalley, the district court addressed the question of the proper characterization of the plaintiffs “primary duty” for the purposes of applying the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a)(1) and related exemptions, 29 U.S.C. § 213(a)(1). 2013 WL 1402348 at *7. Although other IWC wage orders expressly incorporate federal FLSA regulations, see, e.g., 8 Cal. Code Regs. § 11040(l)(A)(3)(e) (stating that the “learned or artistic profession” exemption is “intended to be construed in accordance with” federal regulations concerning the professional exemption to the FLSA), the Ninth Circuit has cast doubt on the relevance of FLSA provisions to the interpretation of the commission sales exemption under the California Labor Code. Peabody v. Time Warner Cable, Inc., 689 F.3d 1134, 1137 (9th Cir.2012) (“It is ... not clear whether courts may look to federal law under the FLSA to determine how commission payments should be allocated.”); see also Martinez v. Combs, 49 Cal.4th 35, 67, 109 Cal.Rptr.3d 514, 231 P.3d 259 (2010) (“The IWC has on occasion deliberately incorporated federal law into its wage orders. However, where the IWC intended the FLSA to apply to wage orders, it has specifically so stated.”) (citing Morillion v. Royal Packing Co., 22 Cal.4th 575, 592, 94 Cal.Rptr.2d 3, 995 P.2d 139 (2000)) (internal quotation marks omitted). However, despite addressing the incorrect standard, Plaintiff nonetheless raises a triable issue of material fact as to whether Plaintiff was “principally involved” in selling a product or service as needed for the variable portion of Plaintiffs wages to constitute “commission” wages under Keyes Motors. In Muldrow v. Surrex Solutions, the California Court of Appeals found employees were “principally involved in selling” for the purposes of the commission sales exemption where the employees’ “primary job duty was to recruit ‘candidates’ for employer ‘clients.’ ” 208 Cal.App.4th 1381, 1391, 146 Cal.Rptr.3d 447 (2012). Although the employees argued their time spent “searching on the computer, searching for candidates on the website, cold calling, interviewing candidates, inputting data, and submitting resumes” should not be considered sales-related activities, the trial court and the court of appeals both found that the “whole point of those activities” were the “essential prerequisites necessary to accomplishing the sale.” Id. at 1392, 146 Cal.Rptr.3d 447 (internal quotation marks omitted). Here, the parties raise conflicting evidence regarding Plaintiffs job duties during the relevant period. On one hand, Plaintiff testified the “biggest portion of [his] time” was spent on engaging with customers, including “dealing with customers as they [came] into the store or receiving phone calls from customers and talking about products.” (Dkt. No. 585, Meckley Decl. Ex. 1, Hammitt Depo. at 244:11-23.) On the other hand, Lumber Liquidators Regional Manager James Davis testified “90-plus percent” of Plaintiffs time was dedicated to directing other employees “to *997complete certain job tasks or activities or duties.” 4 (Dkt. No. 76-1, Garcia Decl. Ex. D, Davis Depo. at 149:21-150:19.) Furthermore, Plaintiff testified the number of hours he worked changed drastically over time due to changes in staffing and Lumber Liquidators’ decision to open the store additional days per week. (Dkt. No. 585, Meckley Decl. Ex. 1, Hammitt Depo. at 286:13-238:1.) The Court may not weigh this conflicting testimony on summary judgment, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and thus finds Defendant has not met its burden of showing that Plaintiff was “involved principally in selling a product or service” as a matter of law. Accordingly, the Court DENIES Defendant’s motion for summary judgment on Plaintiffs overtime claim due to the “Commission Sales Exemption” affirmative defense. 2. Executive Exemption In addition, Defendant argues Plaintiff qualified for the “executive” exemption to California’s wage and hour laws as a separate and independent ground for summary judgment on Plaintiffs overtime claim. (Dkt. No. 58-1 at 13.) Section 1(A) of the IWC’s Wage Order 7-2001 exempts employers from the obligation to pay overtime to persons employed in the mercantile industry in “administrative, executive, or professional capacities.” 8 CaLCode Regs. § 11070(1)(A). Persons meeting the executive exemption are defined as: [A]ny employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring and firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. Id. § 11070(1)(A)(1)(a)-(e). The Wage Order defines “primarily” as “more than one-half the employee’s work time.” Id. § 11070(2)(K). Defendant argues Plaintiffs deposition testimony demonstrates he spent more than half of his work time engaged in exempt duties. (Dkt. No. 58-1 at 17.) Specifically, Defendant claims Plaintiff worked an average of “62.5 hours” per week at Store 40, including the following breakdown: between 31 and 52 hours per week monitoring the store and engaging with customers; 2 hours reviewing company reports; 1 to 2 hours communicating with his regional manager; 10 to 12 hours reviewing inventory reports and inventory; 3 to 5 hours communicating with his employees; 2 to 3 hours dealing with customer complaints; 1 to 2 hours preparing freight bills; and 3 to 4 hours communicating with other stores. (Id.) Defendant claims Plaintiff spent “less than 25% of his time on nonexempt tasks, testifying that he spent 12 to 18 hours per week on nonexempt tasks, including 10 to 15 hours moving product and 2 to 3 hours on cleaning.” (Id.) Plaintiff argues Defendant has failed to meet its burden of proving the executive *998exemption affirmative defense because Plaintiff was not “primarily engaged” in managerial duties. (Dkt. No. 72 at 19-20) (citing Heyen v. Safeway Inc., 216 Cal. App.4th 795, 821-22, 157 Cal.Rptr.3d 280 (2013)). Plaintiff claims he “spent the majority of his time maintaining Defendant’s stores, checking material into the warehouse, organizing product, operating the forklift, sweeping the shop, cleaning the rest rooms and windows, pricing and tagging merchandise, setting up displays, charging customers, and loading products onto vehicles.” (Dkt. No. 72 at 19.) As with the commission sales exemption, the Court finds that genuine issues of material fact exist as to how Plaintiff primarily spent his time. Again, the parties have introduced conflicting evidence regarding Plaintiffs primary job responsibilities. In addition to the conflicting evidence discussed above, the parties introduced additional conflicting testimony regarding changes in Plaintiffs decision-making abilities before and after a personnel change in Plaintiffs direct supervisor. Specifically, Plaintiff testified that “Sam left the decision-making more open for the store managers; whereas Alan was-wanted to control it as to who was to be hired.” (Dkt. No. 58-5, Meckley Decl. Ex. 1, Ham-mitt Depo. at 34:2-8.) As genuine issues of material fact exist as to how Plaintiff “primarily” spent his time as a Store Manager at Lumber Liquidators, the Court DENIES Defendant’s motion for summary judgment on Plaintiffs overtime claim due to the “Executive Exemption” affirmative defense. B. Meal Periods Claim California law “obligates employers to afford their nonexempt employees meal periods and rest periods during the workday.” Brinker Rest. Corp. v. Superior Court, 53 Cal.4th 1004, 1018, 139 Cal. Rptr.3d 315, 273 P.3d 513 (2012) (citing Cal. Lab.Code §§ 226.7, 512; IWC Wage Order No. 5-2001, codified at 8 CahCode Regs. § 11050). The employer satisfies this obligation if “it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” Id. at 1040, 139 Cal.Rptr.3d 315, 273 P.3d 513. As interpreted by the California Supreme Court, the statute and corresponding wage order do not require employers to “police meal breaks and ensure no work thereafter is performed;” “bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations.” Id. at 1040-41, 139 Cal.Rptr.3d 315, 273 P.3d 513. Defendant’s first argument for summary judgment on Plaintiffs second cause of action for failure to provide meal breaks in violation of California Labor Code section 226.7 is that the claim is “premised entirely on LLI’s alleged mis-classification [of Plaintiff] as exempt.” (Dkt. No. 58-1 at 17.) As the Court denies summary judgment on Defendant’s exemption affirmative defenses, the Court DENIES summary judgment on the ground that Plaintiffs meal period claims are derivative of his misclassification claims. Defendant’s second argument for summary judgment on Plaintiffs meal breaks claim is that Plaintiff was “provided” with 30-minute meal periods in compliance with statutory requirements as a matter of law. (Dkt. No. 58-1 at 17-18) (citing Cal. Labor Code § 226.7; Murphy v. Kenneth Cole Prods., Inc., 40 Cal.4th 1094, 1101, 56 Cal.Rptr.3d 880, 155 P.3d 284 (2007)). According to Defendant, premiums for missed meal breaks are only owed by employers when the employers “know or reasonably *999should have known” an employee was denied a meal break. (Id. at 18) (citing Brinker Rest. Corp. v. Superior Court, 53 Cal.4th 1004, 1040, 139 Cal.Rptr.3d 315, 273 P.3d 513 (2012)). Defendant argues Plaintiff was “provided” with uninterrupted meal breaks, but that Plaintiff voluntarily chose to forgo meal breaks “so he could leave work earlier.” (Id.) (citing Dkt. No. 58-5, Meckley Decl. Ex. 2, Ham-mitt Depo. II at 148:11-18.) Plaintiff responds that Defendant required him to work during meal periods by repeatedly telling him that lunch breaks were not allowed and by establishing a work culture that prohibited uninterrupted meal periods. (Dkt. No. 72 at 14-15) (citing Butler v. Homeservices Lending, LLC, No. 11-cv-2313-L(MDD), 2013 WL 1285567 (S.D.Cal. Mar. 26, 2013) (Lorenz, J.)). In Butler, the court denied cross-motions for summary judgment on the issue of whether the defendant employer adequately provided the employee plaintiff with meal and rest periods in compliance with California Labor Code and IWC Wage Order No. 5-2001. 2013 WL 1285567 at *8. The court found that the defendant’s proffered meal and rest break policy and testimony regarding the plaintiffs control over her own work schedule created conflicting' inferences raising a genuine issue of material fact with the plaintiffs proffered testimony regarding her voluminous workload and inability to take breaks. Id. at *7. Here, the parties similarly present opposing evidence raising conflicting inferences and a genuine issue of material fact regarding Plaintiffs claim for missed meal periods. Defendant points to Plaintiffs testimony that it was “his decision” to forgo meal periods because he “was already there 12 hours a day, [and] didn’t really want to stay 12 and a half.” (Dkt. No. 58-5, Meckley Decl. Ex. 2, Hammitt Depo. II at 148:11-18.) In addition, Defendant proffers the declarations of Lumber Liquidators Regional Managers James Davis and Alan Waters stating that they “never observed Plaintiff miss a meal break,” and were never told by Plaintiff that he was either not provided with or could not take a 30-minute meal break. (Dkt. No. 58-7, Waters Decl. 8; Dkt. No. 58-8, Davis Decl. 21.) However, Plaintiff proffers conflicting deposition testimony stating he was never able to stop working for a 30-minute meal break, (Dkt. No. 75, Garcia Decl. Ex. C, Hammitt Depo. at 147:3-13), and was told by Lumber Liquidators Regional Manager Sam Sullivan to “[k]eep in mind we don’t do breaks. We don’t do lunch ... Catch your lunch on the fly.” (Id. at 219:14-18.) On a motion for summary judgment, the Court may not weigh this conflicting evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Butler, 2013 WL 1285567. Accordingly, the Court DENIES summary judgment on Plaintiffs second cause of action for failure to provide meal breaks in violation of California Labor Code section 226.7. C. Inaccurate Wage Statements Claim California Labor Code section 226 mandates that an employer “furnish each of his or her employees ... an accurate itemized statement in writing showing (1) gross wages earned, [and] (2) total hours worked by the employee ...” Section 226(a). Defendant’s sole argument for summary judgment on Plaintiffs fourth cause of action for inaccurate payroll records in violation of California Labor Code section 226 is that the claim is “premised entirely on LLI’s alleged misclassification [of Plaintiff] as exempt.” (Dkt. No. 58-1 at 17.) Having denied summary judgment to Defen*1000dants on Plaintiffs claims that Plaintiff was improperly classified as exempt from California’s wage and hour laws, the Court DENIES Defendant’s motion for summary judgment on Plaintiffs derivative section 226 claim. D. Reimbursement Claim California Labor Code section 2802(a) provides that “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” “Necessary expenditures or losses” include all “reasonable costs.” Cal. Lab.Code. § 2802(c). “To demonstrate that an employer has violated Section 2802, a plaintiff must show that: (1) he or she is an employee; (2) he or she incurred necessary expenses either in the discharge of his or her duties or in obeying the employer’s directions; and (3) the employer failed to reimburse the plaintiff for such expenses.” Desimone v. Allstate Ins. Co., 96-cv-03606 CW, 1999 WL 33226248 at *7 (N.D.Cal. Sept. 14, 1999); Gattuso v. Harte Hanks Shoppers, Inc., 42 Cal.4th 554, 567-68, 67 Cal.Rptr.3d 468, 169 P.3d 889 (2007). In addition, the employer “must either know or have reason to know that the employee has incurred [the] expense.” Marr v. Bank of Am., 09-cv-05978 WHA, 2011 WL 845914 at *1 (N.D.Cal. Mar. 8, 2011) aff'd sub nom. Marr v. Bank of Am., NA, 506 Fed.Appx. 661 (9th Cir.2013). Defendant moves for summary judgment on Plaintiffs claim for unreim-bursed driving costs due to Plaintiffs failure to request reimbursement despite his knowledge of Lumber Liquidators’ reimbursement policies. (Dkt. No. 58-1 at 18-19.) Defendant argues Plaintiff had “clear written policies to reimburse employees for business-related expenses,” (id. at 19) (citing Dkt. No. 58-8, Davis Decl. Exs. 12, 13), and in fact submitted numerous expense reimbursement reports for the employees he managed. (Id.) (citing Dkt. No. 58-5, Meckley Decl. Ex. 1, Hammitt Depo. at 255; Dkt. No. 58-7, Waters Decl. ¶ 7). Although Plaintiff does not dispute Defendant’s proffered evidence, (Dkt. No. 74 ¶ 96, 99), Plaintiff argues: (1) the provisions of section 2802(a) are “non-waivable,” (Dkt. No. 72 at 12-13) (citing Cal. Labor Code § 2804), and (2) that Plaintiff “regularly made frequent trips to the bank, yet he was never reimbursed for the mileage that he had driven for the company.” (Dkt. No. 74 ¶ 98) (citing Dkt. No. 75, Garcia Decl. Ex. Q). The Court finds neither argument creates a dispute of material fact precluding summary judgment. First, while the cost reimbursement requirement of section 2802(a) may not be waivable by private agreement, see Cal. Labor Code § 2804 (providing that “[a]ny contract or agreement, express or implied, made by any employee to waive the benefits of this article or any part thereof, is null and void”), Plaintiff has introduced no evidence that Lumber Liquidators attempted to circumvent reimbursement requirements by contract. Furthermore, Defendant does not contend an express or implied contract or agreement waived Lumber Liquidators’ obligation to reimburse reasonable costs. As such, the anti-waiver provisions of section 2804 do not apply to this case. Second, while Plaintiff may have regularly incurred reimbursable expenses, the parties do not dispute that Plaintiff did not submit reimbursement requests and voluntarily chose not to do so. (Dkt. No. 74 101.5) Absent evidence Defendant knew *1001or had reason to know that Plaintiff had incurred business-related expenses, Defendant is not liable for failure to reimburse Plaintiff for those expenses as a matter of law. See Stuart v. RadioShack Corp., 641 F.Supp.2d 901, 904 (2009) (“[Bjefore an employer’s duty to reimburse is triggered, it must either know or have reason to know that the employee has incurred an expense.”); Marr, 2011 WL 845914 at *1. Accordingly, the Court GRANTS summary judgment on Plaintiffs third cause of action for failure to reimburse incurred business-related expenses in violation of California Labor Code section 2802. E. Statute of Limitations and Joint Employment Theory Defendant moves for summary judgment on Plaintiffs claims against Lumber Liquidators which accrued while Lumber Liquidators contracted with third-party retail management company Anderson Lane Associates (“ALA”) to staff Store 40, on three grounds. First, Defendant argues the statute of limitations has run on Plaintiffs claims against Lumber Liquidators as a “joint employer” of ALA prior to June 2007. (Dkt. No. 58-1 at 20-22.) Second, Defendant argues Plaintiff failed to plead facts demonstrating the existence of a joint employment relationship in the present individual Complaint, thereby precluding Plaintiffs ability to do so at summary judgment. (Id. at 22) (citing L’Ggrke v. Asset Plus Corp., No. 12-596, 2013 WL 3973830 at *5 (N.D.Okla. July 31, 2013)). Third, Defendant argues the contracts between ■ Lumber Liquidators and ALA conclusively demonstrate that Lumber Liquidators was not Plaintiffs employer prior to June 2007 as a matter of law. (Id. at 22-23.) In opposition, Plaintiff argues California labor laws define “employer” broadly, allowing “more than one employer to be liable for unpaid wages and penalties.” (Dkt. No. 72 at 23) (citing 8 CaLCode Regs. § 11070(2)(F) (defining “Employer” as “any person ... who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.”)). Furthermore, Plaintiff argues the statute of limitations on his pre-2007 claims should be tolled during the pendency of the Chavez putative class action brought on behalf of Store Managers and non-exempt employees of Lumber Liquidators in the United States District Court for the Northern District of California. (Dkt. No. 72 at 24-25.) According to Plaintiff, the factual bases of his individual claims are “generally the same” as those alleged in the Chavez action. (Id. at 24.) The Court DENIES Defendant’s motion for summary judgment on Plaintiffs claims against Lumber Liquidators prior to 2007. Defendant’s first and second arguments for summary judgment on Plaintiffs claims which accrued between February 2006 and June 2007 (the “Joint Employer Claims”) rely on the characterization of those claims as separate and distinct from Plaintiffs post-June 2007 claims because they involve a “joint employment” theory of liability. Specifically, Defendant argues the statute of limitations has run on the Joint Employer Claims because no “joint employment” theory of liability was asserted in the Chavez action; similarly, Defendant argues Plaintiff failed *1002to plead a “joint employment” theory of liability in the Complaint in the present action. (Dkt. No. 58-1 at 20-22.) However, courts have long interpreted the Federal Rules of Civil Procedure to require pleading of facts rather than legal theories. See Am. Timber & Trading Co. v. First Nat. Bank of Oregon, 690 F.2d 781, 786 (9th Cir.1982) (“A party need not plead specific legal theories in the complaint, so long as the other side receives notice as to what is at issue in the case.”); see also Miller v. European Film Enters., Inc., 117 F.3d 1425 (9th Cir.1997) (finding abuse of discretion where a district court refused to consider partnership or alter ego theories of liability at summary judgment where these theories were not asserted in the complaint). Here, Plaintiffs Complaint alleged he was employed “by Defendant Lumber Liquidators from approximately February 2005 to June 2011 as an ‘exempt’ employee during the relevant time period.” (Dkt. No. 1 ¶ 11.) Defendant was thus on notice that Plaintiff sought to hold Lumber Liquidators liable as his employer for claims pre-dating June 2007. Furthermore, Defendant’s cited authorities do not compel a contrary result. In L’Ggrke v. Asset Plus Corp., the U.S. District Court for the Northern District of Oklahoma held that an individual could not be held a “joint employer” with the plaintiffs corporate employer under federal discrimination statutes because the plaintiff had pled no facts demonstrating the existence of a joint employment relationship to avoid the statutory bars against individual liability. 2013 WL 3973330 at *5. However, no such requirement is imposed on employees seeking to hold multiple employers liable under California wage and hour law. The California Supreme Court has held that an IWC wage order governing a subject industry defines the employment relationship, and that “employment” in Wage Order No. 14 embodies three alternative definitions: “(a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.” Martinez v. Combs, 49 Cal.4th 35, 75-77, 109 Cal.Rptr.3d 514, 231 P.3d 259 (2010). The California Court of Appeals has expanded the Martinez employment definition to interpret other IWC wage orders. Futrell v. Payday Cal., Inc., 190 Cal.App.4th 1419, 1431, 119 Cal.Rptr.3d 513 (2010) (‘We reiterate: in cases involving the issue of whether an employer-employee relationship existed for purposes of the Labor Code wage statutes, we will apply the Martinez definition.”). Accordingly, to assert a joint employment theory of liability at summary judgment, Plaintiff need only have pled facts sufficient to put Defendant on notice that Plaintiff sought to hold Lumber Liquidators liable as his “employer” under the Martinez definition. Plaintiffs Complaint and the Complaint in the Chavez action gave Lumber Liquidators such notice. The Court therefore DENIES Lumber Liquidators’ motion for summary judgment on Plaintiffs pre-June 2007 claims on the grounds that Plaintiff failed to allege a “joint employer” theory of liability in his Complaint or that the statute of limitations has run on his “joint employer” theory as a matter of law. Defendant’s third argument for summary judgment on Plaintiffs pre-June 2007 claims is that the contracts between Lumber Liquidators and ALA conclusively demonstrate that Lumber Liquidators was not Plaintiffs employer prior to June 2007 as a matter of law. (Id. at 22-23) (citing Dkt. No. 58-3, Sims Deck Exs. 1, 2). Defendant must therefore demonstrate that no disputed issues of material fact exist as to whether Lumber Liquidators controlled Plaintiffs wages, hours, or working conditions; suffered or permitted Plaintiff to *1003work; or created a common law employment relationship with Plaintiff. Martinez, 49 Cal.4th at 75-77, 109 Cal.Rptr.3d 514, 231 P.3d 259 (2010). Defendant has not met this burden. According to Lumber Liquidators, it contracted with ALA to provide “all labor, management, personnel, and oversight required for the operation of the San Diego store.” (Id. at 22.) Pursuant to the contract between Lumber Liquidators and ALA between February 2006 and June 2007, Defendant claims ALA owner Richard Peck interviewed and hired Plaintiff; an ALA employee trained and supervised Plaintiff and directed his day-to-day job duties at the Lumber Liquidators store; and that Plaintiffs employment, rate of pay, payroll, benefits, and schedule were controlled by ALA. (Id. at 23.) Defendant further argues ALA “maintained the right to terminate Plaintiffs employment” until June 2007. (Id. at 24.) Plaintiff disputes Defendant’s proffered evidence, claiming Lumber Liquidators store procedures and policies controlled his day-to-day work while Plaintiff received paychecks from ALA. (Dkt. No. 74 ¶ 107) (citing Dkt. No. 75, Garcia Deck Ex. B). Plaintiff further argues he reported directly to Lumber Liquidators Regional Manager Kevin “Sam” Sullivan after his promotion to the “Store Manager” position in August 2006. (Id. ¶ 105) (citing Dkt. No. 75, Garcia Decl. Ex. C at 18:11-19:1). Plaintiff testified “Anderson Lane had one function and one function only, and that was to staff the stores. Everything else as far as the day-to-day operation as far as all policies, procedures, inventory, sales, whatever, that was all Lumber Liquidators.” (Dkt. No. 75, Garcia Deck Ex. C, Hammitt Depo. at 52:7-13.) The Court finds that the Parties’ disputed facts preclude summary judgment on the question of whether Lumber Liquidators was an “employer” of Plaintiff between February 2006 and June 2007. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (1986). Accordingly, the Court DENIES Defendant’s motion for summary judgment on Plaintiff’s claims pre-dating June 2007. III. Evidentiary Objections Plaintiff filed evidentiary objections to the Declarations of James Davis and Alan Waters in support of Defendant’s motion for summary judgment. (Dkt. Nos. 64, 65.) In addition, Defendant filed eviden-tiary objections to declarations submitted by Plaintiff in opposition to Defendant’s motion for summary judgment. (Dkt. No. 93.) The Court notes the Parties’ objections. To the extent that the evidence is proper under the Federal Rules of Evidence, the Court considered the evidence. To the extent that the evidence is not proper, the Court did not consider them. IV. Requests for Judicial Notice The Parties filed respective requests for judicial notice. Plaintiff filed a request for judicial notice in its opposition papers seeking judicial notice of Lumber Liquidators annual reports filed pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934 (also known as “Form 10-K” reports). (Dkt. No. 61.) Defendant filed a request for judicial notice with its reply seeking judicial notice of filings in the United States District Court for the Northern District of California case Chavez v. Lumber Liquidators Inc., Case Number CV-0904812(SC). (Dkt. No. 92.) Neither party has filed an objection to the requests for judicial notice. The court may take judicial notice of a fact “that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy *1004cannot be reasonably be questioned.” Fed.R.Evid. 201(b). A court may take judicial notice of SEC filings, see Patel v. Parnes, 253 F.R.D. 531, 544-50 (C.D.Cal.2008), as well as filings in federal and state courts if they are relevant. U.S. ex rel. Robinson Ranchería Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). The Court finds all documents appropriate under Federal Rule of Evidence 201. Accordingly, the Court GRANTS the Parties’ respective requests for judicial notice. (Dkt. Nos. 61, 92.) CONCLUSION AND ORDER Based on the foregoing, the Court hereby GRANTS Defendant Lumber Liquidator Inc.’s motion for summary judgment on Plaintiffs third cause of action for failure to reimburse employees for necessary business expenditures pursuant to California Labor Code section 2802. In all other respects, the motion for summary judgment is DENIED. IT IS SO ORDERED. . Although the Declaration of James Davis submitted in support of Defendant’s Motion for Summary Judgment states that Plaintiff submitted his application to Lumber Liquidators on May 31, 2006, this appears to be a typographical error. (Dkt. No. 58-85.) The preceding paragraphs in Davis’ Declaration, (id. 3, 4), Defendant’s motion, (Dkt. No. 58-1 at 3), and Plaintiff’s deposition testimony, (Dkt. No. 58-6, Meckley Decl. Ex. 3, Hammitt Depo. at 91:4-23), indicate that Plaintiff's application was submitted to Lumber Liquidators on May 31, 2007. . Although section 204.1 applies specifically to employees of vehicle dealers, the California Supreme Court has held that the statutes definition of "commission” is more generally applicable to other provisions of the Labor Code. Ramirez v. Yosemite Water Co. Inc., 20 Cal.4th 785, 803-04, 85 Cal.Rptr.2d 844, 978 P.2d 2 (1999) (citing Keyes Motors, Inc. v. Division of Labor Standards Enforcement, 197 Cal.App.3d 557, 563, 242 Cal.Rptr. 873 (1987)). . Defendant has submitted evidence that Plaintiff’s total salary was $48,284.25 from June 2007-December 2007; $90,393.85 in 2008; $98,734.55 in 2009 $111,220.48 in. 2010 and $41,604.34 in 2011. (Dkt. No. 74 at ¶¶ 5-56.) These salary amounts included the following variable amounts per year above Plaintiff's base salary: $27,289.25 from June 2007-December 2007; $49,899.43 in 2008; $60,028.83 in 2009, $111,220.48 in 2010, and $24,911.96 in 2011. (Id.) . The Court notes that Plaintiff claims Davis also testified "Plaintiff spent less than 5% of his time interacting with customers.” (Dkt. No. 74 ¶ 61) (citing Davis Depo. at 213:20-21:8). However, Plaintiff did not file the cited pages with the Court. . Although Plaintiffs Separate Statement of Disputed Facts states that this fact is "Disput*1001ed,” the reasons cited do not dispute either the stated facts or cited testimony. The Court may therefore consider this fact undisputed for the purposes of the present motion. See Fed.R.Civ.P. 56(e) ("If a party fails ... to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for the purposes of the motion.”)

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224368/

*1007Order Transferring Case to the District of South Carolina [Doc. No. 39] CATHY ANN BENCIVENGO, District Judge. This matter is before the Court on a Motion to Dismiss Complaint or in the Alternative to Transfer Venue by Defendants Complete Payment Recovery Services, Inc. (“CPRS”), Certegy Check Services, Inc. (“CCS”), and Fidelity National Information Services, Inc. (“FNIS” and together with CPRS and CCS, “Defendants”). For the reasons set forth below, the Court transfers this action to the United States District Court for the District of South Carolina. I. Background Plaintiff Angela Johnson (“Johnson”) is a South Carolina resident. She alleges that in September 2011 her husband (also a South Carolina resident) entered into a contract with Home Depot Home Services (“Home Depot”) to perform work on his home (located in South Carolina). Her husband provided his South Carolina cell phone number on the application for this work. Beginning in March 2012, Johnson allegedly began receiving unsolicited calls to her cell phone concerning her husband’s alleged debt to Home Depot. Johnson alleges that she “believes” she was initially contacted by CPRS, CCS, “and/or” FNIS, and that the call or calls were placed via an “automatic telephone dialing system.” According to the First Amended Complaint, CPRS and FNIS are Georgia corporations, and CCS is a Delaware corporation, with all three having their respective principal places of business in Florida. Johnson asserts causes of action against all three Defendants1 for negligent and willful violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. She purports to bring these claims on behalf of herself and a nationwide class consisting others who allegedly received unauthorized calls from Defendants to their cell phones via an automatic telephone dialing system. On October 30, 2013, Defendants filed this motion to dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(3) for improper venue. In the alternative, Defendants ask the Court to transfer this action to the District of South Carolina or to the Northern District of Alabama. II. Legal Standard As plaintiff, Johnson has the burden of establishing proper venue. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir.1979); Blair v. CBE Group, Inc., 13-cv-134-MMA-WVG, 2013 WL 2029155 at *2 (S.D.Cal. May 13, 2013). The general venue statute located at 28 U.S.C. § 1391(b) governs that determination here. According to this statute, venue is proper in: (1) a judicial district in which any defendant resides, if all defendants are residents of the same State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the *1008court’s personal jurisdiction with respect to such action. For the purposes of the venue statute, entity defendants “are deemed to reside ... in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.” 28 U.S.C. § 1391(c)(2). The statute further specifies that in states like California with multiple judicial districts, if a corporation is subject to personal jurisdiction in that state, the corporation is “deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate state, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.” 28 U.S.C. § 1391(d). In a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3), the Court does not have to accept pleadings as true and may consider facts outside of the pleadings. Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1137 (9th Cir.2004). When venue is improper, the Court can either dismiss the action, “or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). In addition, even if venue is proper in this district, it is within this Court’s discretion to transfer the action to any other district where it might have been brought “for the convenience of the parties and witnesses.” 28 U.S.C. § 1404(a). III. Discussion The Court finds that Johnson has not established proper venue here under any of the three subparts of 28 U.S.C. § 1391(b), and that in the interests of justice this case should be transferred to South Carolina under 28 U.S.C. § 1406(a). In the alternative, the convenience of the parties and witnesses and the interests of justice require transfer of this action to South Carolina pursuant to 28 U.S.C. § 1404(a). A. Venue Under Section 1391(b)(1) This subpart of the general venue statute makes jurisdiction proper if all of the Defendants reside in California and at least one of the Defendants is deemed to reside in the Southern District of California. 28 U.S.C. § 1391(b)(1). A corporate defendant “resides” in the Southern District of California if, treating this District as a separate state, the defendant would be subject to personal jurisdiction here. 28 U.S.C. § 1391(d). Thus, to establish proper venue under this subpart of the venue statute, it is not enough for Johnson to prove only that each Defendant is subject to personal jurisdiction in California as a whole. The Defendants here are subject to personal jurisdiction in this District only if they have “ ‘certain minimum contacts’ with the forum such that the court’s power to bind the defendant would not ‘offend traditional notions of fair play and substantial justice.’ ” Ambriz v. Coca Cola Co., No. 13-cv-3539-JST, 2014 WL 296159, at *3 (N.D.Cal. Jan. 27, 2014) (quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). This minimum contacts jurisdiction may be either general, or specific to the case at hand. Goodyear Dunlop Tires Operations, S.A v. Brown, — U.S. -, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011). 1. General Personal Jurisdiction An entity that has “substantial” or “continuous and systematic” contacts with this District may be sued here, even if the lawsuit concerns matters unrelated to those contacts. Bancroft & Masters, Inc. *1009v. Augusta Nat’l, Inc., 223 F.3d 1082, 1086 (9th Cir.2000). However, “[t]he standard for general jurisdiction ‘is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world.’ ” Mavrix Photo, Inc. v. Brand Tech., Inc., 647 F.3d 1218 (9th Cir.2011) (quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir.2004)). Here, there is no evidence that either CPRS or CCS have any employees in San Diego or that they conduct any business from here. It is also undisputed that they are not incorporated here and that their principal places of business are in Florida. Although FNIS appears to have a physical presence in San Diego, the extent of that presence is unclear, and in any event does not appear to be substantial. Faced with these facts, Johnson places great emphasis on the fact that the Defendants have each registered to do business in California. None of the facts, however, support a finding that any of the three Defendants is “fairly regarded as at home” in this District. Goodyear, 131 S.Ct. at 2853-2854. Further, even if FNIS’ physical presence in San Diego were sufficient to warrant general jurisdiction over FNIS in this District, it does not support general jurisdiction over CPRS and CCS in this District (or even in California as a whole). Holland Am. Line, Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 459 (9th Cir.2007) (“It is well established that, as a general rule, where a parent and a subsidiary are separate and distinct corporate entities, the presence of one ... in a forum state may not be attributed to the other.”). Accordingly, Johnson has not established that Defendants are subject to general personal jurisdiction in this District or in California as a whole. 2. Specific Personal Jurisdiction Likewise, the facts do not support a finding of specific personal jurisdiction over Defendants based on Johnson’s claims. Specific jurisdiction exists “if (1) the defendant has performed some act or consummated some transaction within the forum or otherwise purposefully availed himself of the privileges of conducting activities in the forum, (2) the claim arises out of or results from the defendant’s forum-related activities, and (3) the exercise of jurisdiction is reasonable.” Bancroft & Masters, 223 F.3d at 1086. Here, Johnson’s claim arises out of a call or calls she allegedly received in South Carolina that, if they were actually made by any of the Defendants, originated from a call center in Alabama. Johnson does not argue or allege that her specific claims arise out of any Southern District of California activities by Defendants. Instead, Johnson speculates that other putative class members may be located in this District. Johnson made no such allegation in her complaint, however, and even if Johnson had any evidentiary support for this speculation, it would not matter here because determination of proper venue is generally based on the named plaintiff, not unnamed or absent putative class members. Arnbriz, 2014 WL 296159, at *5-6 (listing cases supporting its conclusion that “it is the named plaintiffs claim that ‘must arise out of or result from the defendant’s forum-related activities,’ not the claims of the unnamed members of the proposed class, who are not party to the litigation absent class certification.”). Therefore, Johnson has not met her burden of establishing proper venue in this District on the grounds that Defendants are subject to specific personal jurisdiction here either. *1010B. Venue Under Section 1391(b)(2) Under this subpart, venue is proper in this District if “a substantial part of the events or omissions giving rise to the claim occurred” here. As discussed above, there is no dispute that none of the alleged improper calls to Johnson were made from or received in this District, and the claims of possible other class members are irrelevant to the venue determination. Id. Accordingly, Johnson has not proven proper venue in this District under this subpart of the venue statute. C. Venue Under Section 1391(b)(3) Under this subpart, venue is proper in this District if subparts (1) and (2) cannot be satisfied by another district and at least one defendant is subject to personal jurisdiction here. Here, although Johnson opposes transfer to South Carolina (where she resides), she does not dispute that South Carolina would be a proper venue for this lawsuit. Accordingly, this subpart of the venue statute does not justify venue in this District. D. Transfer Under Section 1406(a) Although Defendants have moved for dismissal based on improper venue, in lieu of dismissal, this Court may, “in the interest of justice, transfer [this] case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). Due to the age of this action, and to spare Johnson the delay and expense involved in re-filing this action and re-serving Defendants, the Court finds that the interests of justice weigh in favor of transfer to a proper venue instead of outright dismissal. To that end, the Court finds that this action could have been brought in South Carolina as venue would have been proper there under 28 U.S.C. § 1391. Moreover, all of the allegations in Johnson’s complaint point to South Carolina as being the best district for this lawsuit. Accordingly, the Court finds that transfer to South Carolina is appropriate under Section 1406(a). E.Transfer Under Section 1404(a) Defendants also move in the alternative for transfer of this action to either South Carolina or the Northern District of Alabama pursuant to 28 U.S.C. § 1404(a). This statute gives the Court discretion to transfer an action to another venue, even if venue is proper in this District, for the convenience of the parties and witnesses and in the interest of justice. Unlike the analysis under Section 1391, “a motion to transfer venue for convenience pursuant to 28 U.S.C. § 1404(a) does not concern the issue ‘whether and where’ an action may be properly litigated. It relates solely to the question where, among two or more proper forums, the matter should be litigated to best serve the interests of judicial economy and convenience to the parties.” Injen Tech. Co., Ltd. v. Advanced Engine Mgmt., Inc., 270 F.Supp.2d 1189, 1193 (S.D.Cal.2003) (emphasis in original). Factors relevant to this determination include “(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiffs choice of forum, (4) the respective parties’ contacts with the forum, (5) the contacts relating to the plaintiffs cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir.2000). However, “[u]nless the balance of convenience is strongly in favor of the defendant, plaintiffs choice of forum should not, or should rarely, be disturbed.” E & J Gallo Winery v. F & P S.p.A., 899 F.Supp. 465, 466 (E.D.Cal.1994). *1011Even with this heavy burden, transfer is warranted here. The only one of these factors that conceivably weighs in favor of this District is Johnson’s choice of this forum, but that factor is less significant because Johnson brings this action on behalf of a class and because this forum has no connection to Johnson’s claims. Hawkins v. Gerber Prod. Co., 924 F.Supp.2d 1208, 1214 (S.D.Cal.2013) (“[I]n class actions, a plaintiffs choice of forum is often accorded less weight.”) (citing Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir.1987)); Galliani v. Citimortgage, Inc., No. 12-cv-00411-KJM-KJN, 2013 WL 101411, at *3 (E.D.Cal. Jan. 7, 2013) (“Where the forum lacks any significant contact with the activities alleged in the complaint, plaintiffs choice of forum is given considerably less weight ... ”). The rest of the Jones factors are either neutral or weigh in favor of transfer to South Carolina. Johnson and her husband reside in South Carolina, she received the alleged offending phone calls in South Carolina, and her husband executed the contract with Home Depot in South Carolina. According to Defendants, the alleged phone calls, if they were made by Defendants, came from a call center in Alabama. Any nonelectronic documentary evidence is therefore likely to be in South Carolina, Alabama or Florida (where the Defendants have their principal places of business). Any witnesses, including Johnson herself, are likely located in one of these states as well. On the other hand, this District has no connection to any of Johnson’s allegations. Indeed, South Carolina appears to be the more convenient forum for everyone who may be involved in this case aside from plaintiffs counsel. Cf. E & J Gallo Winery, 899 F.Supp. at 466 (“Convenience of counsel is not a consideration.”). IV. Conclusion The Court finds that the Southern District of California is not a proper venue for this action and that the interests of justice warrant transfer to the District of South Carolina pursuant to 28 U.S.C. § 1406(a). In the alternative, even if venue is proper here, the Court finds the convenience of the parties and witnesses and the interests of justice warrant transfer to South Carolina pursuant to 28 U.S.C. § 1404(a). Accordingly, the Court hereby ORDERS as follows: 1. Defendants’ Motion to Dismiss Complaint or in the Alternative to Transfer Venue [Doc. No. 39] is DENIED IN PART insofar as it seeks dismissal based on improper venue; 2. Defendants’ Motion to Dismiss Complaint or in the Alternative to Transfer Venue [Doc. No. 39] is GRANTED IN PART insofar as it seeks transfer of this action to the District of South Carolina; 3. This action is TRANSFERRED to the United States District Court for the District of South Carolina for further proceedings pursuant to 28 U.S.C. § 1406(a), or in the alternative, pursuant to 28 U.S.C. § 1404(a); 4. All other pending motions, including Defendants’ Motion to Dismiss for Failure to State a Claim [Doc, No. 40], Defendants’ Motion to Withdraw as Attorney [Doc. No. 55], and Plaintiffs Motion to Compel [Doc. No. 57], are DENIED WITHOUT PREJUDICE to re-filing as necessary and appropriate after transfer to the District of South Carolina; and 5. This CASE is CLOSED. IT IS SO ORDERED. . The Court dismissed defendant Bennett Law with prejudice by order dated September 20, 2013.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217518/

JUDGMENT PER CURIAM. This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and arguments of counsel. It is ORDERED and ADJUDGED that the appeal be dismissed for lack of jurisdiction. 28 U.S.C. § 1291 and the collateral order doctrine do not confer jurisdiction over this interlocutory appeal, because Howard has failed to demonstrate a “real prospect of irreparable harm” that would be caused by deferring review until entry of the final judgment in this case. National Ass’n of Criminal Defense Lawyers v. Dep’t of Justice, 182 F.3d 981, 985 (D.C.Cir.1999) (citation omitted). Any costs and fees incurred because of plaintiffs’ alleged misconduct and violation of the discovery rules can be redressed through an appropriate motion for sanctions under Federal Rule of Civil Procedure 37(c)(1). Nor does 28 U.S.C. § 1292(a)(1) provide jurisdiction. The order that is appealed did not “accord some or all of the substantive relief sought by [the] complaint,” I.A.M. Nat’l Pension Fund Benefit Plan v. Cooper Indus., Inc., 789 F.2d 21, 24 (D.C.Cir.1986) (citation omitted), and Howard has failed to show that the order might have a “serious, perhaps irreparable consequence,” id. (quoting Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981)). Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41(a)(1).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217519/

Present: OAKES, CALABRESI, SOTOMAYOR, Circuit Judges. Defendant-Appellant Claver Cole was convicted, after a jury trial, of conspiracy to distribute and possess with intent to distribute cocaine and attempted possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 846. Defendant argues in this appeal that the district court erred in denying his motion for a new trial based on newly discovered evidence that a prosecution witness at his trial committed perjury. The government’s case against Defendant included testimony from Kyesha McCall, who smuggled cocaine from Jamaica to the United States. McCall was caught by customs agents at Kennedy In*5ternational Airport and agreed to assist the agents in a controlled delivery. Agents arrested Defendant when he came to the airport to pick up McCall. McCall testified that she knew the person who recruited her for the operation (a third party) only by his nickname “Broo-mey,” and that she first met him just one day before she flew to Jamaica. Shortly before trial, Defendant’s counsel told the government that, in fact, McCall and “Broomey” had been in a romantic relationship for several months prior to her trip. Prosecutors confronted McCall with this accusation, but she denied it. With no evidence to support the allegation, and believing that Defendant lacked credibility (he had submitted two false affidavits in connection with an earlier suppression hearing), the government called McCall as a witness against Defendant. The prosecution’s case also included testimony from other witnesses, phone records of calls between Defendant and others involved in the operation, and statements made by Defendant during and after his arrest. Following his conviction but prior to sentencing, Defendant participated in a series of proffer sessions with the government in order to qualify for the safety valve provision of U.S.S.G. §§ 2Dl.l(b)(6) and 5C1.2. In those sessions, Defendant admitted that he was guilty of the offenses for which he was convicted and that the allegations in his earlier affidavits were false. Most important, Defendant gave the government “Broomey’s” real first name — Rohan—and his address. Using this information, police apprehended Ro-han Sammott and another member of the operation. After he was arrested, Sam-mott told the government that he had, in fact, engaged in a sexual relationship with McCall prior to her trip to Jamaica. The government informed Defendant’s counsel of that admission. Defendant filed a motion, pursuant to Fed.R.Crim.P. 33, requesting a new trial on the ground of newly discovered evidence.1 After a hearing, the district court denied the motion. In doing so, the court first considered the distinction between “newly discovered” evidence and “newly available” evidence and its effect with respect to a Rule 33 motion — an effect that we have not considered but one on which a majority of other circuits agree.2 The court noted that, if it were to apply the majority rule, it would clearly find that the evidence was not “newly discovered,” and *6therefore that Defendant’s Rule 33 motion was time barred.3 After discussing this distinction, however, the court concluded that it need not decide whether Defendant’s motion was timely because even if it met the procedural requirements of Rule 33, the motion failed on the merits. The court rejected the Defendant’s assertion that the prosecution should have known McCall’s testimony was false. Where the government did not know that it was offering perjured testimony, the court noted, “a new trial is warranted only if the testimony was material and the court is left with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.” United States v. Wallach, 935 F.2d 445, 456 (2d Cir.1991) (internal punctuation and citation omitted). Applying this standard, the district court concluded (1) that “as far as Mr. Cole was concerned, [McCall] was almost a background witness,” because she had no evidence to offer on the critical issue at trial, namely, Defendant’s knowledge and intent when he came to the airport to pick up McCall; and (2) that, had the jury known that McCall lied about the affair, “it would not have made any difference, given all of the other ... evidence, unrelated to Ms. McCall’s testimony.” We review a district court’s denial of a Rule 33 motion “for an abuse of discretion, and we accept the district court’s factual findings unless they are clearly erroneous.” United States v. Gallego, 191 F.3d 156, 161 (2d Cir.1999). We have reviewed the record and the district court’s thorough consideration of the facts and issues in this case, and see no evidence that the court’s findings were erroneous or that it abused its discretion in denying Defendant’s motion. Moreover, although Defendant asserts that the district court improperly applied the standard- — adopted by the majority of circuits but not yet addressed by this court — for “newly available” evidence, it is clear from the record that the court did not base its decision on that standard. We have considered all of Defendant’s claims and find them meritless. We therefore AFFIRM the judgment of the district court. . Fed.R.Crim.P. 33 allows the court to grant a new trial, "if the interest of justice so requires,” on a motion from the defendant, subject to the certain time limitations: (1) if the motion is based on newly discovered evidence, it must be filed within three years after the verdict or finding of guilty, but (2) if the motion is grounded on any other basis, it must be filed within seven days after the verdict or finding of guilty, unless the court, during that seven-day period, grants an extension of the time to file. See Fed.R.Crim.P. 33. . See, e.g., United States v. Jasin, 280 F.3d 355, 362, 364 (3d Cir.2002) (holding that "newly available” evidence does not constitute "newly discovered” evidence for pin-poses of extending, beyond seven days, the time for filing a Rule 33 motion); United States v. Theodosopoulos, 48 F.3d 1438, 1448-49 (7th Cir.1995) (same); United States v. Glover, 21 F.3d 133, 138 (6th Cir.1994) (same); United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir.1994) (same); United States v. Dale, 991 F.2d 819, 838-39 (D.C.Cir.1993) (same); United States v. Lockett, 919 F.2d 585, 591-92 (9th Cir.1990) (same); United States v. DiBernardo, 880 F.2d 1216, 1224—25 (11th Cir.1989) (same); United States v. Offutt, 736 F.2d 1199, 1202 (8th Cir.1984); United States v. Metz, 652 F.2d 478, 480-81 (5th Cir.1981) (same); but see United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (1st Cir.1997) (holding that unavailable evidence may constitute newly discovered evidence if the failure to learn of the evidence did not result from the defendant’s lack of due diligence). . Indeed, the court later said that the defendant had also failed to meet the burden of showing that the evidence was "newly available,” since he knew of the affair and also knew of Sammott’s whereabouts.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217520/

SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 10th day of April, two thousand and three. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED. The defendant Michael Hernandez appeals from a judgment entered on April 23, 2002 in the United States District Court for the Western District of New York (John T. Elfvin, Judge), convicting him, after a guilty plea, of (1) possession of a firearm as a previously convicted felon in violation of 18 U.S.C. § 922(g)(1), possession of ammunition as a previously convicted felon in violation of 18 U.S.C. § 922(g)(1), and possession of a stolen firearm that had been transported in interstate commerce in violation of 18 U.S.C. § 922(j), and sentencing him principally to three concurrent terms of 180, 180, and 120 months’ imprisonment. In accordance with a conditional plea agreement, Hernandez reserved the right to appeal the district court’s denial of his motion to suppress evidence. In this appeal Hernandez alleges that the evidence used against him was obtained in a search that violated his rights under the Fourth Amendment to the United States Constitution. The district court’s factual findings, with which the parties are familiar, are set forth in detail in United States v. Hernandez, 2001 WL 1344832, at *2-*7 (W.D.N.Y. April 13, 2001) (unpublished). We recite here only those facts required to explain our result. After an anonymous “911” call, the police officers on patrol, including Officer Vidal, were told by the 911 operator that there was a “Puerto Rican man” with a gun at 43 York Street who was riding in a gray, four-door Nissan, which was being driven by a woman, and was heading south on West Street.1 When Vidal spotted Hernandez’s car, it turned out to be a gray, four-door Mazda, heading south on West Street, which was being driven by a man (Cordero), with another man (Hernandez) in the front passenger seat, and a woman (Johnson) in the back seat. Corde-*9ro voluntarily stopped the car in front of a convenience store to buy cigarettes, and, perhaps, for Hernandez to buy something too. Vidal pulled up behind the parked car and turned on the cruiser’s flashing overhead lights. In an unpublished report and recommendation, the magistrate judge concluded that Hernandez’s Fourth Amendment rights were “not implicated” at this point because Hernandez’s vehicle was voluntarily “stopped” by the driver, Cordero, rather than being forcibly “seized” by Officer Vidal. See Hernandez, 2001 WL 1344832, at *10-*11. In the alternative, the magistrate judge reasoned that even if Officer Vidal had actually “seized” the car, Vidal’s seizure was justified by the anonymous call, which had “sufficient indicia of reliability,” and thus, provided reasonable suspicion that criminal activity was afoot. See id. at *11. The magistrate judge’s report was adopted in toto by the district court. See id. at *1. We disagree with the magistrate judge on both points. When the overhead lights went on, the car was “seized” — in the sense that no reasonable driver would think that he was free to leave, see United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)— without reasonable suspicion that criminal activity was afoot, see Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Moreover, the anonymous 911 call had not yet been corroborated, and did not have sufficient indicia of reliability to justify Vidal’s stop of the car. See Florida v. J.L., 529 U.S. 266, 270-71, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). But our inquiry does not end here. The record does not demonstrate precisely what made Hernandez exit the car — his desire to buy something, the appearance of the police car, or the turning on of its overhead lights. But even if the turning on of the overhead lights caused Hernandez to exit the car, Hernandez himself was not “seized” until he turned around, walked back toward Vidal, and submitted to Vidal’s order to halt. See California v. Hodari D., 499 U.S. 621, 624-29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). By that time, Hernandez had already exited the car, left the door open, walked away hastily, looked back at Vidal, said falsely, “No habla, no habla,” and then turned around, recognized Vidal, and returned speaking English. Taken together with the anonymous call, these unusual actions gave Vidal reasonable suspicion to justify a Terry stop of Hernandez, after Hernandez had left his car. See Terry, 392 U.S. at 30, 88 S.Ct. 1868; J.L., 529 U.S. at 270-71, 120 S.Ct. 1375. At this point, the second police cruiser arrived and Officer Locicero stepped out. He had heard the 911 operator’s dispatch, including that there was a “man with a gun,” and based upon the dispatch, he knew that Vidal had stopped a gray, four-door Mazda, with three occupants. He observed what was plainly a Terry stop: Vidal was talking to Hernandez, who was standing in front of Vidal, with his back to him, leaning onto the car, with both of his hands on the trunk. Locicero saw Corde-ro outside of the car, presumably talking to another officer, being subjected to a Terry stop by other officers. Locicero thought that one of the two male suspects was “Puerto Rican,” which was consistent with the anonymous call. Locicero saw Johnson in the back seat of the car. The car’s passenger-side front door was open and the car’s dome light was on. It was under these circumstances that Locicero thrust his head into the open door, aimed the beam of his flashlight onto the floor, saw the gun under the passenger seat, secured the gun, and warned the other officers: “I got a gun, cuff him.” Hernandez, Cordero, and Johnson were *10arrested by the other officers, and Locice-ro brought the gun back to police headquarters. The magistrate judge found that the firearm was admissible under the “plain view” exception to the warrant requirement because Hernandez had opened the car door himself and Locicero had already observed the firearm before he “leaned” into the car to retrieve it. See Hernandez, 2001 WL 1344832, at *15. We find this view doubtful,2 but we need not and do not decide the plain view issues presented by this appeal. We conclude that Locicero’s minimally intrusive search was justified as a protective search for weapons under Terry. We affirm the district court’s judgment on this basis alone. As the Supreme Court has explained, there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. Terry, 392 U.S. at 27, 88 S.Ct. 1868. The [Terry] Court ... held that a search must meet two requirements to fall within this “narrowly drawn authority.” First, it cannot be motivated solely by a “hunch” that an individual is armed and dangerous. Id. There must instead be a suspicion supported by “specific reasonable inferences which [the officer] is entitled to draw from the facts in light of his experience.” Id. Second, the weapons search must be “confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Id. at 29, 88 S.Ct. 1868. United States v. Casado, 303 F.3d 440, 444 (2d Cir.2002) (quoting Terry, 392 U.S. at 27, 29, 88 S.Ct. 1868). “Because ‘no judicial opinion can comprehend the protean variety of the street encounter,’ [we can] ‘only judge the facts of the case before [us].’ ” Id. at 445 (quoting Terry, 392 U.S. at 15, 88 S.Ct. 1868). When Locicero arrived on the scene— having heard about the anonymous 911 call, observing Hernandez and perhaps Cordero detained by other officers, and Johnson sitting in the back seat of the car — he had reasonable suspicion to perform a limited protective search of the passenger compartment of Hernandez’s car. See Alabama v. White, 496 U.S. 325, 329-32, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); see also Michigan v. Long, 463 U.S. 1032, 1045-53, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (holding that when police officers conduct a Terry stop of a vehicle, and have reasonable suspicion that “suspects are ... dangerous and may gain immediate control of weapons,” they may search the vehicle’s passenger compartment for weapons); United States v. Colon, 250 F.3d 130, 135 (2d Cir.2001) (“an arresting officer might not be aware of all the underlying facts that provided probable cause or reasonable suspicion, but may nonetheless act reasonably in relying on information received by other law enforcement officials”). Terry calls for a fact-specific inquiry into the reasonableness of the search under the totality of the circumstances. On the facts of this case — the car was stopped, there was suspicion of the presence of a gun, one or two passengers were undergoing Terry stops related to possible gun possession, and a passenger remained in *11the stopped automobile from which the other two had exited — we find that Locice-ro’s minimally intrusive visual search of the floor of the front passenger seat through an opened car door, which he conducted to ensure that there was no weapon inside the car, was justified by his reasonable suspicion that criminal activity was afoot. The search of the vehicle did not violate the Fourth Amendment. The district court was correct to deny Hernandez’s motion to suppress the evidence obtained from the car. For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED. . Although the anonymous caller partially described the license plate number of Hernandez’s car, the 911 operator did not transmit this piece of information to the police officers on patrol. As a result, the partial license plate number cannot be used to justify Officer Vidal’s seizure of the car. See United States v. Colon, 250 F.3d 130, 134-38 (2d Cir.2001) (holding that the Fourth Amendment doctrine of imputed knowledge does not apply to communications between civilian 911 operators and law enforcement officers). . During oral arguments, the government conceded that Locicero’s body had "broken the plane” of the open door, and entered the interior of the car, before he had observed the firearm.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217521/

SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 11th day of April, two thousand and three. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED. Appellant Wael Abdel Rahman Kishk appeals from his conviction, after a jury trial, for making a material false statement to federal law enforcement officers, in violation of 18 U.S.C. § 1001(a)(2). On appeal, Kishk challenges his conviction on the grounds that (1) there was insufficient evidence to convict him of a violation of Section 1001, and (2) that he was given ineffective assistance of counsel at trial. We affirm. Kishk contends that the evidence presented at trial was insufficient to establish that he made a false statement during the course of his brief detention at J.F.K. airport. When considering a challenge to the sufficiency of the evidence, we must “view the evidence in the light most favorable to the government and construe all possible inferences in its favor,” United States v. Badalamenti, 794 F.2d 821, 828 (2d Cir.1986), and must “consider the evidence in its totality, not in isolation,” United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000). *13We have no difficulty affirming Kishk’s conviction for making a false statement in violation of Section 1001. Agent Finn testified that, while being held at J.F.K. airport, Kishk denied that he planned to take flight lessons during his stay in the United States, and insisted that he entered the country with the intent to study business administration. These statements were flatly contradicted by the testimony of Maryanne Allard, an admissions officer at the college where Kishk had been accepted to study aviation. Kishk argues that, because he ultimately told the F.B.I. agents the truth — i.e., that he had come to the United States to take flight lessons — before they filed formal charges, such statements were insufficient to sustain Kishk’s conviction under Section 1001. This argument has no basis in law or fact. The fact that Kishk eventually recanted his false statement in no way renders it any less false. See United States v. Sebaggala, 256 F.3d 59, 64 (1st Cir.2001) (rejecting the argument that a recantation of an earlier false statement is a defense to a charge of violating Section 1001). Moreover, given that the F.B.I. had already initiated an investigation of Kishk on the basis of those false statements, Kishk’s recantation did not render the statements immaterial. See United States v. Gaudin, 515 U.S. 506, 509, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (to be “material” a “statement must have a natural tendency to influence, or [be] capable of influencing, the decision of the decision! ]making body to which it was addressed”) (internal quotation marks and citations omitted). We also have no difficulty rejecting Kishk’s argument that his false statements were the result of confusion or lack of facility with the English language. The F.B.I. agents asked Kishk several times whether he understood English and whether he wanted an interpreter. Kishk stated that he could communicate in English and declined the offer of a translator. In addition, at trial, the government introduced evidence that Kishk had spent time in America before and had taken English classes during that stay. Based on this evidence, we find no reason to disturb the jury’s verdict. Kishk also contends that his trial counsel was ineffective because of his failure to cross-examine Detective Frazer about his sworn statement that Kishk ultimately admitted that he planned to take flight lessons. Although we generally do not consider a claim of ineffective assistance of counsel on direct appeal, see United States v. Williams, 205 F.3d 23, 35 (2d Cir.2000), we will do so “when its resolution is beyond any doubt,” United States v. Matos, 905 F.2d 30, 32 (2d Cir.1990) (internal quotation marks and citations omitted), as is the case here. First, as we noted above, the fact that Kishk ultimately told the F.B.I. the truth regarding his plans in the United States does not undermine his conviction for making a false statement to that agency. Hence, the fact that Kishk’s trial attorney did not cross examine Detective Frazer regarding Kishk’s eventual recantation did not lead to prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, Kishk’s trial counsel clearly had strategic reasons for declining to engage in a line of questioning that would possibly lead jurors to associate Kishk — who entered the United States on September 19, 2001 with false documentation and a fake Egyptian Air uniform — with the highjack-ers of September 11, 2001. See id. at 689. For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217522/

SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated term of the United States Court of Appeals for the Second Circuit, *15held at the United States Courthouse, Foley Square, in the City of New York, on the 11th day of April, two thousand and three. ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED. After a trial in the United States District Court for the Northern District of New York (Mordue, J.), a jury rejected plaintiff-appellant Carol Forden’s claims of sexual harassment and retaliation by defendant-appellee Bristol Myers Squibb (“BMS”). Forden appeals from (1) the pretrial denial of her motion to enforce a settlement agreement, (2) the district court’s grant of summary judgment to BMS on Forden’s claim under the Equal Pay Act, 29 U.S.C. §§ 208 et seq., and (3) various evidentiary rulings. Because we conclude that none of these claims have merit, we affirm. Forden was employed by BMS for approximately seven years before resigning in 1998. Shortly thereafter, she sued, principally alleging that she was subjected to a hostile work environment on the basis of gender as a result of the conduct of two supervisors. She asserted claims of gender discrimination and retaliation under Title VII, 42 U.S.C. § 2000(e), and the New York Human Rights Law, N.Y. Exec. L. § 296, a claim under the Equal Pay Act, 29 U.S.C. §§ 203 et seq., and state law claims of defamation and negligent infliction of emotional harm. In October 2001, the district court granted BMS partial summary judgment, dismissing the Equal Pay Act and state law tort claims. Forden claims that the district court erred in dismissing her Equal Pay Act claim, because she effectively rebutted BMS’s explanations for pay differentials between men and women in the sales division where she had worked. Forden also asserts that the district court erred by finding that some pay differentials were attributable to seniority status. After a prima facie case is made under the Act, the burden shifts to the employer to demonstrate that wage disparities are due to a seniority system, a merit system, a system that measures earnings based upon quantity or quality of production, or other differentials based on any factor other than sex, provided it was implemented for a legitimate business reason. See Belfi v. Prendergast, 191 F.3d 129, 136 (2d Cir.1999); 29 U.S.C. § 206(d)(1). If the employer meets its burden of persuasion, plaintiff may counter “by producing evidence that the reasons the defendant seeks to advance are actually a pretext for sex discrimination.” Belfi, 191 F.3d at 136. The district court found that while For-den arguably made a prima facie case under the Equal Pay Act “by showing that during 1997 and 1998, when she was a National Account Manager, male National Account Managers earned higher salaries than females in the same position,” BMS had carried its burden by demonstrating that the “salary differentials were due to a number of permissible factors including seniority, experience and performance.” The court then found that Forden failed to produce probative rebuttal evidence sufficient to raise a material question of fact about BMS’s explanations. We review the district court’s grant of summary judgment de novo. See Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 90 (2d Cir.2002). After a review of the record, we agree with the district court that Forden has faded to present rebuttal evidence sufficient to bring into question BMS’s explanations for the pay differentials. Accordingly, the district court’s grant of summary judgment on the Equal Pay Act claim was proper. *16On May 6, 2002, the day the case was originally set for trial, the parties advised the court that they had reached a settlement. They then read the agreed-upon terms of the settlement into the record. Counsel for BMS informed the court that he would prepare a written settlement agreement consistent with the terms read into the record, which he would forward to Forden’s counsel. Subsequent attempts to agree on terms of the written agreement faded, however, as Forden insisted that a general release of all claims against BMS was not part of the agreement. With the parties at an impasse on this issue, the court denied Forden’s motion to enforce the oral agreement stated in court, concluding that since there, in fact, had been no agreement on a material term-i.e. the release-no enforceable settlement had been reached. In denying Forden’s motion to enforce the oral agreement, the district court examined the four factors we identified in Ciaramella v. Reader’s Digest Ass’n, 131 F.3d 320 (2d Cir.1997), and concluded that the last three favored BMS. These factors-no one of which is dispositive-are whether: (1) there was an express reservation of the right not to be bound in the absence of a signed writing; (2) there has been partial performance of the contract; (3) all of the terms of the alleged contract have been agreed upon; and (4) the agreement at issue is the type of contract that is usually committed to writing. Id., at 323 (citing Winston v. Mediafare Entertainment Corp., 777 F.2d 78, 80-81 (2d Cir.1985)). We conclude that the district court correctly considered these factors and find no error in its conclusion that the parties had failed to agree on a material term of the contract and, consequently, that no binding settlement agreement existed. Finally, Forden contends that the district court erred in ruling on certain motions in limine. The district court’s evi-dentiary rulings are entitled to substantial deference and are reviewed only for a clear abuse of discretion. Healey v. Chelsea Resources, Ltd. 947 F.2d 611, 619-20 (2d Cir.1991). Moreover, even if a ruling was erroneous, reversal is not warranted unless affirmance would be inconsistent with substantial justice. Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir.1997). Applying this standard, we see no reason to disturb the district court’s rulings. We have considered all of Forden’s remaining contentions and find them to lack merit. The judgment of the District Court is AFFIRMED.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217523/

SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED. Title 18 U.S.C. § 3553(f), the “safety-valve” provision, provides relief under certain circumstances from the imposition of a statutorily-mandated minimum sentence. Such relief is available to a defendant only if he or she meets the eligibility requirements set forth in the statute, including that, “not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” Id. When defendant David Taborda sought safety-valve relief in the District Court from the statutory minimum sentence of 120 months mandated for an offense involving more than five kilograms of cocaine, the Government opposed on the ground that Taborda had not “truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses,” as required by 18 U.S.C. § 3553(f)(5). The Government further specified the instances in which it believed Taborda to have been untruthful. *18Taborda initially planned to testify in rebuttal, but then his counsel informed the court that Taborda would not give testimony. He offered no other evidence to rebut the Government’s specific claims of untruthfulness. In arguing his eligibility for the safety-valve provision, the defendant bears the burden of putting before the court evidence from which it can conclude that he meets the provision’s requirements. See, e.g., United States v. DeJesus, 219 F.3d 117, 122 (2d Cir.2000) (per curiam). Instead, because Taborda came forward with nothing, Taborda prima facie failed to establish his eligibility for relief under § 3553(f). Id. The District Court thus not only was not required, but was not permitted, to apply the safety-valve provision in calculating Taborda’s sentence. Having reviewed all of the Appellant’s claims, and finding in them no merit, the judgment of the District Court is AFFIRMED.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217524/

SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED. In February of 1997, the Kings Point Police Department hired Balwinder Singh (“Plaintiff-Appellee”), an American citizen who was born in Punjabi, India, as a probationary police officer. As part of his probation, Plaintiff-Appellee was required to complete the training course at the Nassau County Police Academy (“the Academy”), which trains police officer candidates for the individual police departments within the county. On January 12, 1998, the Kings Point Police Department decided to terminate Plaintiff-Appellee, allegedly based upon his performance at the Academy. Plaintiff-Appellee contends that his performance, as compared to that of the other recruits, did not justify his termination. He contends that the Academy fostered a racially hostile work environment and that he suffered disparate treatment based upon his race. Plaintiff-Ap-pellee filed suit against the Kings Point Police Department, three commissioners on the Board of Police Commissioners of the Village of Kings Point, and Lieutenant Jack Miller, the commanding officer of the Kings Point Police Department (collectively, “Defendants-Appellants”). Plaintiff-Appellee also sued the Nassau County Police Department and Sergeant James Cor-dara, his training officer at the Academy, who are not involved in this appeal.1 Defendants-Appellants moved for summary judgment on the basis that there was no evidence of discrimination. The individual defendants-appellants also sought qualified immunity, arguing that, as a matter of law, they acted reasonably in terminating Plaintiff-Appellee because “the[ir] decisions were based upon the plaintiff’s negative evaluations and consultations with Academy staff.” The district court denied the motion. On interlocutory appeal, the individual defendants-appellants argue that they are entitled to qualified immunity because they had neither control over the Academy nor knowledge of the alleged harassment. However, this argument was not presented to the district court and, although it might be an available defense as the case proceeds, the failure to present it below makes it unavailable as a ground for this interlocutory appeal. The argument that was presented in the district court — that the individual defendants-appellants reasonably relied on the Academy’s evaluations of Plaintiff-Appellee’s performance— is not presented on appeal. In these circumstances, we have no basis to disturb the rejection of the qualified immunity defense at this stage of the litigation, and we decline to consider the other aspects of the district court’s decision. . The district court deemed the claims against the Kings Point Police Department and the Nassau County Police Department to have been filed against the respective municipalities.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217525/

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petition is DENIED. Robert Fitzpatrick files this petition for review of an order of the Securities and Exchange Commission (the “SEC”) sustaining disciplinary action by the National Association of Securities Dealers, Inc. (“NASD”) against him. Fitzpatrick, a compliance officer at SFI Investments, Inc. (“SFI”) (an NASD member during the relevant period) was sanctioned by the *21NASD for failing to timely respond to document requests relating to an investigation of SFI. He was censured, suspended for five business days, and assessed a fine of $2,500. We deny the petition for the following reasons. 1. “In reviewing the SEC’s opinion and order, we must affirm ‘[t]he findings of the Commission as to the facts, if supported by substantial evidence.’ ” Valicenti Advisory Servs. Inc. v. S.E.C., 198 F.3d 62, 64-65 (2d Cir.1999). We review the SEC’s legal conclusions for “arbitrariness, capriciousness and abuse of discretion,” Higgins v. SEC, 866 F.2d 47, 49 (2d Cir.1989), and the imposition of sanctions for abuse of discretion. Markowski v. SEC, 34 F.3d 99, 105 (2d Cir.1994). The NASD’s rules impose a duty to respond to document requests on persons associated with member firms. In re application of Borth and Jones, 1992 WL 388741, *1 (S.E.C. Release No. 34-31602). The record in this case reflects Fiztpatrick’s failure to respond to the NASD’s repeated requests for documents beginning in January 1996, despite repeated warnings that failure to respond would result in disciplinary action. Fitzpatrick gave no reason to the NASD for his failure to respond. He now claims that he was not responsible for supplying the NASD with the requested information. The SEC’s fact finding to the contrary is supported by substantial record evidence, and we see no abuse of discretion in either the SEC’s legal conclusions or the sanctions imposed. 2. Fitzpatrick alleges that there were ex parte communications between the panel and opposing counsel. The allegation is solely based upon their presence in the hearing room approximately 10 minutes before he was permitted entry. Affidavits from NASD panel members and counsel refute Fitzpatrick’s bare allegations of improper communications. Absent compelling evidence to the contrary, we cannot overturn the SEC’s finding that no improper communications occurred. 3. Fitzpatrick challenges several evidentiary rulings by the NASD panel. Even if erroneously admitted, transcript passages from the interview of SFI’s president were not prejudicial since Fitzpatrick was required to respond to the NASD’s inquiry regardless of his job description. Nor was there any prejudice in the exclusion of evidence related to time periods and requests not material to the present proceedings. The SEC’s refusal to overturn these evidentiary rulings was not an abuse of discretion.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217526/

Summary Order ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED. The Plaintiffs in this appeal were prevailing parties in local administrative proceedings conducted pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1487 (2000). Both were represented in the proceedings by Michael D. Hampden, a distinguished attorney with over thirty years of experience in litigating and supervising other litigators. Following the successful resolution of their disputes, the Plaintiffs sought attorney’s fees from the Department of Education (“DOE”) in the amount of $250 per hour. The parties negotiated but found themselves unable to reach a mutually satisfactory figure. The Plaintiffs then filed a complaint, pursuant to 20 U.S.C. § 1415(i)(3)(b), in the United States District Court for the Eastern District of New York, in order to obtain their fees. The District Court adopted the recommendation of the magistrate judge awarding plaintiffs fees at the full $250 hourly rate. This appeal followed. We review “a district court’s award of attorneys’ fees under the IDEA for abuse of discretion.” J.C. v. Reg’l Sch. Dist. 10, Bd. of Educ., 278 F.3d 119, 123 (2d Cir.2002) (citing G.M. v. New Britain Bd. of Educ., 173 F.3d 77, 80 (2d Cir.1999)). We review de novo the District Court’s interpretation of the relevant fee statute itself. Id. A district court must calculate fees using the “ ‘lodestar’ approach, whereby an attorney fee award is derived ‘by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’ ” G.M., 173 F.3d at 84 (quoting Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)). We interpret the IDEA fee provisions in consonance with those of other civil rights fee-shifting statutes. J.C., 278 F.3d at 124. Thus, in determining the “reasonable hourly rate,” we ask whether “the requested rates are in fine with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The DOE contends that the District Court erred in determining the reasonableness of the $250 hourly figure by considering as points of comparison rates paid in general federal litigation in the Eastern District of New York, rather than rates charged specifically in state administrative hearings. We need not reach that question. The magistrate judge in fact considered evidence of what other counsel charge “at Impartial Hearings.” We therefore fail to understand the DOE’s challenge to the District Court’s market definition. One might, however, read the DOE’s argument as a contention that the District Court abused its discretion by failing to reduce the lodestar figure to reflect the fact that these proceedings required less skill or expertise than the average comparable case. We find this alternative formulation unpersuasive as well. These cases might, arguably, have been resolved more readily than the average federal civil rights suit. The DOE itself contends, however, the relevant point of comparison is other state administrative proceedings. We see nothing in the record to show that *24these two cases were simpler than the average impartial hearing. Nor did the District Court abuse its discretion in crediting the plaintiffs’ evidence over the evidence offered by the DOE. As the DOE admits, its own affiant declared that “attorneys who represent parents and students in administrative impartial hearings ... charge approximately $200 per hour.” This is the same lodestar rate the magistrate recommended. The DOE’s contrary evidence came from data tracking the fees it had paid to counsel appearing in its administrative hearings. However, the Plaintiffs offered unrefuted evidence that these attorneys often supplement the fees paid them by the Board with money they charge their clients, so that the actual rate is substantially above the DOE’s figures. The DOE also challenges the District Court’s adjustment of the lodestar figure upwards to reflect Mr. Hampden’s considerable experience. It first argues, cursorily, that the statutory language of the IDEA prohibits such adjustments. We have repeatedly held that we apply the full Eckerhart procedure to IDEA fee awards. See, e.g., J.C., 278 F.3d at 124; see also Jason D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 208 (5th Cir.1998) (holding that “the legislative history of the IDEA indicates that this attorneys’ fees provision should be interpreted in accordance with Hensley v. Eckerhart”); Moore v. District of Columbia, 907 F.2d 165, 173 & n. 14 (D.C.Cir.1990) (holding that Congress intended for IDEA to be “interpreted consistent with fee provisions of statutes such as title VII of the Civil Rights Act of 1964”). We therefore reject the DOE’s argument. See Eckerhart, 461 U.S. at 430 n. 3 (identifying “the experience, reputation, and ability of the attorneys” as a factor that may determine the ultimate fee award). DOE also contends that the adjustment was an abuse of discretion, because Hampden’s experience with this particular type of litigation was limited. We think it entirely obvious that most important legal skills are transferrable, and, unsurprisingly, DOE is unable to identify any caselaw to the contrary. Moreover, the Plaintiffs offered evidence that Hampden had experience in this area of law since at least 1993. Finally, the Plaintiffs offered evidence that highly experienced counsel in the Eastern District of New York had been paid at $250 per hour, and the DOE introduced nothing at all in response. The District Court did not abuse its discretion in crediting the undisputed evidence before it. Therefore, for the reasons stated above, the judgment of the District Court is hereby Affirmed.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217547/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. James Steadman appeals the district court’s order granting Crystal Gateway Marriott’s motion to dismiss and dismissing Steadman’s complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Steadman v. Crystal Gateway Marriott, No. CA-02-1230-A (E.D. Va. filed Nov. 15, 2002; entered Nov. 20, 2002). We deny Steadman’s motion titled “motion for rehearing” requesting permission to file additional briefs and for oral argument. 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217792/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Robert Hayes appeals the district court’s order dismissing his complaint seeking reparations for failure to state a claim. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Hayes v. Bureau of Indian Affairs, No. CA-03-498-AMD (D.Md. Mar. 3, 2003). 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217527/

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED. Appellant, Richard E. Hamm, Jr., pro se, appeals from the February 22, 2002 order of the United States District Court for the Northern District of New York (Norman A. Mordue, Judge), granting Ap-pellees’ motion for summary judgment dismissing his claims under the Americans with Disabilities Act and the Rehabilitation Act with prejudice, and dismissing his claims under the New York State Human Rights Law without prejudice. This Court reviews de novo a district court’s grant of summary judgment, focusing on whether the district court properly concluded that no genuine issues of material fact existed and that the movant was entitled to judgment as a matter of law. See Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir.1999). Hamm asserted that after he informed the Appellees that he had been diagnosed with Adult Attention Deficit Disorder, his appointment as a probationary high school teacher was terminated because defendants regarded him as disabled. See 42 U.S.C. § 12102(2); Reeves v. Johnson Controls World Servs., 140 F.3d 144, 151 (2d Cir.1998). To be “regarded as” having a disability, a plaintiff must prove that his or her employer believed that he or she has an impairment that substantially limits one or more major live activities. See 42 U.S.C. § 12102(2)(C). Hamm, however, presented no evidence that the Appellees regarded him as disabled under the Americans with Disabilities Act. Having carefully considered the record, we affirm substantially for the reasons stated in the district court’s memorandum-decision and order.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217530/

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is hereby AFFIRMED. Defendant-appellant Darnell Louis appeals from a judgment of conviction entered on June 28, 2002, after defendant’s conviction by a jury, sentencing Louis principally to fifty months of imprisonment for possession of a firearm following a felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant argues on appeal that the District Court erred (1) by excluding relevant evidence favorable to his defense (i. e., the exclusion of a police officer’s contemporaneous notes including the names of people the officer had searched, and statements by people that defendant was not the right man), (2) by improperly applying a two-level sentence enhancement for obstruction of justice based on allegedly intentionally false statements defendant made in a declaration in support of a motion to suppress, and (8) by improperly preventing defendant from testifying at sentencing by threatening to impose an additional two-level sentencing enhancement if the Court found that he gave intentionally false statements. This timely appeal followed. A. A district court is granted broad discretion for its evidentiary rulings. Such rulings are only reversed if they are manifestly erroneous such that the district court’s decision on the admissibility of the evidence constitutes an abuse of discretion. See, e.g., United States v. SKW Metals & Alloys, Inc., 195 F.3d 83, 87 (2d Cir.1999); United States v. Flaharty, 295 F.3d 182, 191 (2d Cir.), cert. denied, — U.S.-, 123 S.Ct. 37, 154 L.Ed.2d 237 (2002), cert. denied, Johnson v. United States, — U.S. -, 123 S.Ct. 1502, 155 L.Ed.2d 241 (2003). Generally, relevant evidence is admissible so long as its probative value is not substantially outweighed by its potential for unfair prejudice. Fed.R.Evid. 401, 403. We have held that a district court “is in the best position to evaluate the evidence and its effect on the jury, [and that the district court’s] rule 403 rulings are entitled to considerable deference and will not be overturned absent a clear abuse of discretion.” Constantino v. Herzog, 203 F.3d 164, 173 (2d Cir.2000). District courts are also afforded wide latitude in their decisions to exclude evidence that poses an undue risk of prejudice and/or confusion of the issues. See United States v. Blum, 62 F.3d 63, 67 (2d Cir.1995). The District Court held that the testimony of unspecified bystanders and Florey Mompoint, individuals who were not eyewitnesses to the altercation or to the events that led to Louis’s arrest for possession of a handgun, bore no relevance to the defendant’s argument that the arresting police officers were motivated to lie and held that whatever probative value the testimony had was “vastly outweighed” by the danger of unfair prejudice and jury confusion. Additionally, both arresting officers testified that they never heard anyone claim that they were arresting the wrong individual at the time of the arrest. The Court excluded the testimony and held that “the defense’s proposed use of the evidence does not have any tendency to make the existence of the fact that the defense is attempting to establish, namely that the officers have lied about seeing the *31gun in the defendant’s hand more probable than not.” Gov’t App. at 150. Defendant argues that Police Officer Richard Banks’s memo book was improperly excluded. The District Court excluded the notebook as hearsay, finding that Banks had testified regarding his inability to remember whether he had searched Ducaste Lamothe, a defense witness, and that the memo book could not be used to corroborate Lamothe’s testimony that he was searched by Banks, stating that defense counsel was “going to try to draw inferences from a hearsay document as to what it means. You are attempting to corroborate the truth of the testimony of your witness [i.e., Lamothe].” Defendant argues on appeal that the memo book was circumstantial evidence of the connection between Banks and Lamothe on the night of defendant’s arrest (April 24, 2001). However, the connection between Banks and Lamothe was established by Banks’s testimony that his memo book contained Lamothe’s “pedigree” information (e.g., name, address, etc.), which Banks would have obtained on the night of April 24, 2001-testimony which corroborated La-mothe’s testimony that Banks searched him. [Red 22] We find no abuse of discretion in the District Court’s exclusion of the testimony of the witness who did not observe the arrest and its decision that the testimony’s potential prejudicial effect and the potential confusion of the jury substantially outweighed its probative value. The exclusion of Banks’s memo book was harmless error, as Banks acknowledged, based on his having recorded Lamothe’s pedigree information in his memo book, that he must have questioned Lamothe. Defendant also challenges on appeal the District Court’s imposition of a sentence enhancement for defendant’s alleged obstruction of justice pursuant to United States Sentencing Guideline § 3C1.1 (the “Guidelines”).1 This enhancement applies if defendant willfully provided “materially false information to a judge or magistrate.” U.S.S.G. § 3C1.1 cmt. (n.4 (f)). The District Court found that defendant made material, intentionally false statements in an affidavit submitted to Magistrate Judge Cheryl L. Pollack in order to bolster defendant’s argument that the arresting officers improperly interrogated him prior to informing him of his Miranda rights. In order for a district court to find that defendant’s statements were material and intentionally false, it must “review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice ... under the perjury definition.” United States v. Dunnigan, 507 U.S. 87, 94-95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). The District Court must make this determination by clear and convincing evidence. See, e.g., United States v. Kelly, 147 F.3d 172, 178 (2d Cir.1998). However, a district court’s ruling that the established facts constitute obstruction of justice is reviewed de novo, and “due deference [is afforded] to the district court’s application of the [Guidelines to the facts.” United States v. Cassiliano, 137 F.3d 742, 745 (2d Cir.1998). Finally, the District Court’s interpretation and application of the Guidelines to the established facts will be disturbed only if an abuse of discretion *32has occurred. United States v. Fernandez, 127 F.3d 277, 283 (2d Cir.1997). The District Court found that Louis’s statements in an affidavit in support of a motion to suppress statements to the arresting officers were material and intentionally false. Louis stated that “One officer questioned me and I responded to him. This questioning occurred without any of the officers having advised me of any constitutional rights, particularly my right to remain silent and my right to consult my attorney.” J.A. at 142-43. Both Magistrate Judge Pollack and the District Court found “completely credible” the testimony of the arresting officers that Officer William Robbins made a comment to Louis thanking him for not shooting at the officers, that Robbins did not intend to solicit any response from Louis, that the officers asked no questions of Louis, that about forty-five seconds to one minute after Robbins’s comment Louis stated that he had been acting in self-defense and that the other man was the aggressor, and that Louis’s statement was made as Robbins turned away from him. The District Court found that defendant’s assertion that he was interrogated by the arresting officers without having been given a Miranda warning was intentionally false and material, in that it was motivated by defendant’s desire to obtain the suppression of his inculpatory statements. The District Court accordingly, applied the two-level sentence enhancement. Defendant argues on appeal that the evidence was insufficient to support a finding of willful falsity and that the District Court improperly drew inferences against him because he did not testify to his lack of willfulness. He asserts also that the Court improperly threatened him with an additional two-level enhancement under U.S.S.G. § 3C1.1, if he testified during the trial and the District Court found that defendant’s explanation of his declaration was intentionally false. We reject the defendant’s contentions. The evidence was sufficient to support the Court’s findings. Nor did the Court rely improperly on the defendant’s decision not to testify. Finally, a district court is entitled to inform a defendant of the possible consequences of presenting false testimony. See United States v. Desimone, 119 F.3d 217, 230 (2d Cir.1997) (holding that a sentencing court may warn a defendant of the possibility of a sentence enhancement). The Supreme Court has said that, “a defendant’s right to testify does not include a right to commit perjury.” Dunnigan, 507 U.S. at 96. Where the District Court properly warned defendant that if he testified falsely, an additional sentence enhancement would apply, the Court committed no error in advising defendant of the possible outcome of presenting false testimony. We hold that the District Court committed no error, much less clear error, in applying the two-level enhancement pursuant to U.S.S.G. § 3C1.1 for defendant’s admittedly false statements in his affidavit in support of his motion to suppress. We hereby AFFIRM the judgment of the District Court. . U.S.S.G. § 3C1.1 provides If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217532/

SUMMARY ORDER ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED. Defendant Reginald A. Jennings appeals from the judgment of conviction entered in the United States District Court for the Southern District of New York (Stein, J.) following his jury trial. Jennings was charged, along with co-defendant Herman McEwan, with conspiracy to commit wire fraud and wire fraud in violation of 18 U.S.C. §§ 2, 1343. The indictment alleged that Jennings, McEwan, and others devised a scheme to lease fraudulent bank guarantees to investors. As Jennings explains, “investors were told that these guarantees and associated documents supposedly issued by European banks would be invested in special trading programs from which they would reap large profits.” After the victims wired the money to Mc-Ewan’s accounts, the victims received copies of bank guarantees purportedly issued by Deutsche Bank; “safe-keeping receipts” for those guarantees purportedly issued by ING bank; and printouts purportedly from Bloomberg and Euroclear supposedly documenting that the bank guarantees and safekeeping receipts had been posted on these financial services. These documents were all fake. McEwan pled guilty on October 25, 2001, and Jennings’s jury trial took place February 4-15, 2002. The jury convicted Jennings of all counts after approximately one hour of deliberations. The District Court denied Jennings’s post-trial motions for a new trial made pursuant to Rule 33 of the Federal Rules of Criminal Procedure. The District Court found that McEwan’s plea allocution was admissible under Federal Rule of Evidence 804(b)(3) to prove the existence of the conspiracy and to prove conduct in furtherance of the conspiracy, that the statement admitted was properly limited to self-inculpatory statements, and that the District Court properly instructed the jury with respect to the limited purposes for which the evidence could be used. More*37over, the Court concluded that Jennings had waived any objection to the admission of the evidence by consenting to its admission. The District Court agreed with Jennings, however, that the government improperly remarked in its opening that Mc-Ewan had admitted that he was part of the same conspiracy as that which Jennings was charged, given that the allocution could not be used to establish that Jennings was also a member of the charged conspiracy. The Court found that this error did not rise to the level of prejudicial reversible error, however. With regard to Jennings’s challenge to the admission of his bar suspension proceedings, the District Court found that, by stipulating to the admission, Jennings had waived this argument. Moreover, it found that the evidence was properly admitted because it was directly relevant to the claim that Jennings had made fraudulent misrepresentations in furtherance of the conspiracy (i.e., that he was international counsel), and that Jennings had opened the door for cross examination by testifying on direct examination concerning the circumstances of his suspension. The District Court rejected Jennings’s challenge to admission of his prior business dealings, finding that the government’s cross examination constituted proper impeachment given Jennings’s testimony that he had no prior experience with bank guarantees. Further, the District Court had given a limiting instruction to cure any potential prejudice. Similarly, the District Court found no evi-dentiary error with respect to two checks written by McEwan to Jennings, which were not related to the charged scheme. One check was not admitted into evidence, and the District Court had given a proper limiting instruction to the jury with respect to this evidence. Moreover, the District Court found, the checks were proper impeachment evidence. It also ruled that Rule 16 of the Federal Rules of Criminal Procedure did not require exclusion of the evidence even though the government apparently failed to turn over to the defense one check prior to trial. Even if the checks were improperly used at trial, the District Court found that any error was harmless and that the limiting instruction adequately protected Jennings from undue prejudice. With respect to Jennings’s expert witness, the District Court found that a hypothetical question was incapable of being accurately answered and thus was irrelevant under Rule 402 of the Federal Rules of Evidence. Moreover, it found that it was proper to exclude the answer under Federal Rule of Evidence 704(b) because it called for an opinion as to whether Jennings had the mental state or condition constituting an element of the offense. Finally, the District Court rejected Jennings’s claims of ineffective assistance of counsel, which were largely based on the alleged evidentiary errors that the District Court rejected on the merits. Specifically, it found that Jennings had not overcome the presumption that trial counsel’s conduct was the result of sound trial strategy, particularly given Jennings’s trial strategy of trying to depict McEwan as the mastermind and Jennings as the unwitting dupe. It also found that Jennings could not satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because his guilt “was supported by substantial, even overwhelming, evidence” such that the District Court did not lack confidence in the outcome of the trial. On July 1, 2002, the District Court sentenced Jennings to seventy-eight months’ imprisonment, pursuant to the 2000 Federal Sentencing Guidelines. The District *38Court rejected Jennings’s request for an adjustment for minor role and his motion for a downward departure. The District Court granted bail pending appeal because even though it thought the chance of reversal was slight, given the strong evidence of Jennings’s guilt, it believed he could raise non-frivolous claims on appeal. On appeal, Jennings asserts that the District Court (1) committed plain error in admitting a summary of McEwan’s plea allocution; (2) committed plain error in failing to declare a mistrial or to grant other relief because of the government’s improper use of the plea allocution summary in its opening statement; (3) committed plain error in not excluding or limiting reference to Jennings’s bar suspension; (4) committed plain error in permitting the government to introduce evidence of his business dealings that predated the charged conspiracy; (5) erred in permitting the government to introduce bad checks delivered to him by the co-defendant and related documents that were unrelated to the charged offenses; (6) abused its discretion in limiting the defense expert’s testimony; (7) erred in rejecting his claims of ineffective assistance of trial counsel on various grounds; (8) erred in refusing to set aside the verdict or grant a new trial; (9) abused its discretion by refusing to depart downward under United States Sentencing Guidelines Section 2F1.1 comment 11 or Section 5K2.0 because the offense was outside the heartland of fraud offenses contemplated by the Guidelines; (10) abused its discretion by refusing to grant a minor role downward adjustment under Guidelines Section 3B1.2; (11) erred in imposing an upward adjustment for abuse of a position of trust or special skill; and (12) erred in imposing an upward adjustment for obstruction of justice. We review the District Court’s evidentiary decisions for abuse of discretion. See United States v. Taubman, 297 F.3d 161, 164 (2d Cir.2002). “An abuse of discretion requires that the district court acted arbitrarily and irrationally.” United States v. Garcia, 291 F.3d 127, 136 (2d Cir.2002) (internal quotation marks omitted). “[E]ven if there was an abuse of discretion [in admitting evidence], we will not order a new trial if the error was harmless — i.e., the evidence was unimportant in relation to everything else the jury considered on the issue in question.” United States v. Jackson, 301 F.3d 69, 64 (2d Cir.2002) (citation and quotation marks omitted and alterations in Jackson). As Rule 52(a) of the Federal Rules of Criminal Procedure states, “[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” An erroneous ruling on the admissibility of evidence is harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury. To say that the erroneously admitted testimony did not substantially influence the jury we are not required to conclude that it could not have had any effect whatever; the error is harmless if we can conclude that that testimony was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. United States v. Rea, 958 F.2d 1206, 1220 (2d Cir.1992) (internal citations and quotation marks omitted). When a defendant fails to make a contemporaneous objection to an evidentiary ruling, we review the ruling for plain error, in accordance with Rule 52(b) of the Federal Rules of Criminal Procedure (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”). As the *39Supreme Court has explained, “[t]here must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’ Moreover, Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “Deviation from a legal rule is ‘error’ unless the rule has been waived.” Id. at 732-33. “ ‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” Id. at 734 (quoting F.R.Crim. P. 52(b)). “[I]n most cases [to affect substantial rights] means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Id. at 734. Although this inquiry is similar to the harmless error inquiry under Rule 52(a), here a defendant must bear the burden of demonstrating that the error was prejudicial. Id. at 734. We review the denial of a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure for abuse of discretion. United States v. Thomas, 303 F.3d 138, 142 (2d Cir.2002). Facts relied on in sentencing need be established only by a preponderance of the evidence and will be overturned only if they are clearly erroneous. United States v. Jacobo, 934 F.2d 411, 418 (2d Cir.1991). The appellate court applies de novo review to the legal questions regarding application of the Sentencing Guidelines. See United States v. Barrett, 178 F.3d 643, 645 (2d Cir.1999). “We review for clear error a sentencing court’s finding that a defendant did not play a minor role in the offense.” United States v. Castano, 234 F.3d 111, 113 (2d Cir.2000). Having thoroughly reviewed the record and considered all of Jennings’s arguments, we find no basis to reverse the District Court’s comprehensive and well-reasoned rulings. The judgment of the District Court is AFFIRMED.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217534/

*43 SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Appeal be, and it hereby is, DISMISSED. Omar Ansari purports to appeal from a stipulation of dismissal with prejudice of any and all existing or potential claims between Ansari and Time Warner Cable of New York City (“Time Warner”). In September 2001, Time Warner filed a complaint alleging that Ansari intercepted Time Warner’s cable television programming services, without authorization, using a “pirate” cable television descrambling device in violation of the Communications Act, 47 U.S.C. §§ 553, 605. It appears that such a box was delivered to one Sajid Ansari, defendant’s son, at the address Ansari and his son then shared. Ansari filed a counterclaim for defamation, alleging that Time Warner had falsely portrayed him as “a thief,” and for infliction of emotional distress caused by the filing of the lawsuit against him. The parties have executed a stipulation of discontinuance, agreeing to dismissal with prejudice, which was “so ordered” by Judge Trager on March 25, 2002. On appeal, Ansari argues that the district court erred in failing to award him compensation on his counterclaim. Ansari asserts that the stipulation was “masterminded” by Time Warner, and that the failure to award Ansari damages renders the stipulation unconstitutional. This Court has recognized limited circumstances in which a party can appeal following a voluntary dismissal with prejudice: “when the plaintiffs’ ‘solicitation of the formal dismissal was designed only to expedite review of [a prior] order which had in effect dismissed [plaintiffs’] complaint,’ ” Chappelle v. Beacon Communications Corp., 84 F.3d 652, 653 (2d Cir.1996) (alterations in original) (quoting Empire Volkswagen, Inc. v. World-Wide Volkswagen Corp., 814 F.2d 90, 94 (2d Cir.1987)), and when “an adverse ruling disposed] of fewer than all of [the plaintiffs] claims following the plaintiffs voluntary relinquishment of its remaining claims with prejudice.” Id. In this case, however, the court decided no issue and entered no prior order from which an appeal could be taken; the court entered only a dismissal of all claims pursuant to a stipulation. The only issues raised by Ansari on this appeal are matters that were voluntarily dismissed. Moreover, even if the parties’ agreement to dismiss their claims were construed as a settlement agreement, settlement agreements are contracts, which could be invalidated only upon a showing of fraud, duress, illegality, or mutual mistake. See Janneh v. GAF Corp., 887 F.2d 432, 436 (2d Cir.1989) (“A settlement is a contract _”), abrogated on other grounds by Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). Ansari’s conclusory assertion that the stipulation was the result of “manifest deception” is insufficient. Accordingly, the stipulation of dismissal is unreviewable. For the foregoing reasons, Ansari’s appeal is hereby DISMISSED.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217535/

Summary Order ORDERED, ADJUDGED AND DECREED that the appeal is DISMISSED. In this suit, the Plaintiff-Appellee, Annette A. Juncewicz, alleges that her position with the Erie County Water Authority was eliminated as a result of her own political activity as well as that of her *45husband, the other Plaintiff-Appellee, Gregory B. Olma. The District Court granted in part and denied in part a motion for summary judgment by the Defendants. In particular, the District Court determined that Olma lacked standing to obtain any relief under federal law, and that Juncewicz could not state a claim under 42 U.S.C. § 1985(8). Accordingly, it granted summary judgment on those claims. The court rejected the Defendants’ arguments, however, that the Water Authority was shielded by legislative immunity, that no reasonable juror could find sufficient evidence to support Juncewicz’s claims, and that the individual Defendants are immune from suit under New York law. The individual Defendants now appeal the latter two determinations. Because we have no jurisdiction to consider such an appeal at this time, the Defendants’ appeal must be dismissed. The Defendants claim that we have jurisdiction to hear this interlocutory appeal because it is based on the District Court’s decision denying them qualified immunity.* We have jurisdiction over an interlocutory appeal only when it presents “purely legal ... issues.” Loria v. Gorman, 306 F.3d 1271, 1280 (2d Cir.2002). Therefore, we have held that: If the district court has ruled that adjudication of the immunity defense requires resolution of genuinely disputed questions of material fact, the denial of summary judgment on that basis is not immediately appealable. Where the district court’s summary judgment order, though entered on a qualified-immunity-based motion, has “determine^] only a question of evidence sufficiency, i.e., which facts a party may, or may not, be able to prove at trial,” it is a “kind of order [that] is not appealable.” Munafo v. Metro. Transp. Auth., 285 F.3d 201, 211 (2d Cir.2002) (quoting Johnson v. Jones, 515 U.S. 304, 313, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (alterations in original)). Put another way, we have jurisdiction only to consider whether, under the “version of the facts before the district court that is most favorable to [the plaintiff],” the defendants violated clearly established law. Loria, 306 F.3d at 1280. The Defendants here make no effort to argue that retaliation against a government employee for her political speech or associations is anything but a clearly established violation of the Constitution. See, e.g., African Trade & Info. Ctr. v. Abromaitis, 294 F.3d 355, 360 (2d Cir.2002) (citing, among other cases, Rutan v. Republican Party of Ill, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980)). Therefore, for the reasons stated above, the appeal is hereby Dismissed. We note that there is no indication in the Record that the Defendants actually raised a qualified immunity argument below. As best we can discern, the individual Defendants raised only a claim of immunity under New York law. New York law is not relevant to the Defendants’ liability under § 1983. See Howlett v. Rose, 496 U.S. 356, 376, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) (citing Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980)). However, we accept, purely for the sake of argument, the Defendants' contention that the District Court considered the qualified immunity issue.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217536/

SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the *47judgment of the district court be and it hereby is AFFIRMED. Plaintiff-Appellant appeals a memorandum and order of the district court dated September 17, 2002, denying plaintiffs motion for summary judgment, granting defendants’ cross-motion for summary judgment, and dismissing her complaint. For the reasons that follow, we affirm the decision of the district court. Plaintiff-Appellant “Jane Doe” is a woman in her early thirties with a cum laude undergraduate degree from Welles-ley College, a Master’s degree in English from the State University of New York at Albany, and a history of suffering from bipolar syndrome.1 As her academic achievements suggest, she has consistently been able to perform well despite her disorder, in part thanks to medication and therapy. After working in various other capacities, she decided to change careers and become a teacher. In September 2000 she began work as a probationary eighth-grade English teacher for Appellee-Defen-dant Board of Education of Fallsburg Central School District (“the Board”). The Board is the governing body for Appellee-Defendant Fallsburgh Central School District (“the District”), a public school district in Sullivan County, New York. On November 6, 2000, Doe called the chair of the Fallsburgh Junior High School English Department and told her that she was depressed and suicidal and would not be coming to work the next day. The following morning, November 7, she checked herself into a local mental health treatment facility. Later that day she called Gary Holbert, the District superintendent, and told him that she had been admitted to a psychiatric hospital and would be absent from work. She called Holbert again on or around November 15 and told him that she would be discharged on the 17th, and would be able to return to work in January of 2001. After Doe entered the hospital, the District obtained Doe’s grade book, and discovered that the grades were erratically recorded and that they seemed to diverge unpredietably over time, leading the District to question their accuracy. Around this time, in November of 2000, Holbert decided to recommend that Doe’s contract not be renewed at the end of her probationary period. On January 9, 2001, Doe was readmitted to the hospital; she was discharged on January 17, 2001. In February 2001, pursuant to the District’s usual practice, the school’s principal made recommendations to Superintendent Holbert about whether to recommend that various probationary teachers be reappointed. He recommended that Doe not be reappointed in a memo dated February 28, 2001. The Board officially decided on March 14 not to renew Doe’s probationary appointment, and voted to terminate her effective June 30, 2001. Holbert’s official explanation for his recommendation was that her “instruction was not found to be at an excellent level and there were gaps in the curriculum and the evaluation of students.” When Doe offered to finish the year, Hol-bert requested, pursuant to the collective bargaining agreement that governed teachers employed by the District, that Doe agree to a psychiatric examination. Doe refused the examination, and was not allowed to return to work. Doe filed suit in the Southern District of New York (Brieant, /.) in October of 2001, alleging that the Board and the District violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the New York Human Rights Law, N.Y. Exec. Law § 296 (“NYHRL”), when it decided not to renew her appointment. At the close of discovery, both par*48ties moved for summary judgment. They both relied on an extensive joint statement of stipulated facts. In a memorandum and order dated September 17, 2002, the district court denied Doe’s motion, granted defendants’ motion, and dismissed the complaint. This Court reviews a district court’s grant of summary judgment de novo. Opals on Ice Lingerie v. Body Lines Inc., 320 F.3d 362, 367-68 (2d Cir.2003). Claims under the ADA, the Rehabilitation Act, and the NYHRL all proceed under the familiar burden-shifting analysis articulated by McDonell Douglas and its progeny. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Parker v. Columbia Pictures Indust., 204 F.3d 326, 332 n. 1 (2d Cir.2000) (applying general Title VII principles to NYHRL cases); Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir.1998) (applying McDonnell Douglas process to ADA claims); Teahan v. Metro-North Commuter R. Co., 951 F.2d 511, 514 (2d Cir.1991) (applying burden-shifting in eases where employer claims not to have relied on employee’s disability). Doe therefore had the burden of establishing a prima facie case. In order to establish a prima facie case pursuant to the ADA, a plaintiff must show that “(1) [her] employer is subject to the ADA; (2) she was disabled within the meaning of the ADA; (3) [she] was qualified to perform the essential functions of [her] job, with or without reasonable accommodation; and (4) [she] suffered adverse employment action because of [her] disability.” Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir.2001). Claims under the Rehabilitation Act are treated almost identically to those under the ADA. Reg’l Econ. Cmty. Action Program, Inc. v. City of Middle-town, 294 F.3d 35, 48-49 (2d Cir.2002) (“RECAP”) (noting that the prima facie case for ADA and Rehabilitation Act is the same, except that Rehabilitation Act does not permit mixed-motive suits). Accordingly, we simply use “ADA” to indicate both statutes. In the present case, there is no dispute that the District is a covered institution, that Doe could perform the requirements of the job, or that Doe suffered an adverse employment action. The district court found that Doe was not disabled as defined in the ADA, and thus could not establish a prima facie case. A plaintiff can demonstrate that she has a disability within the meaning of the ADA in any of three ways. She can show that she: (1) has an impairment that substantially limits one or more of her major life activities; (2) has a record of such an impairment; or (3) that the employer regarded her as having such an impairment. Francis v. City of Meriden, 129 F.3d 281, 283 (2d Cir.1997) (citing 42 U.S.C. § 12102(2)). Doe asserted all three grounds below, but the district court rejected each claim. On appeal, she only raises the third, claiming that there is a question of material fact as to whether the District regarded her as disabled. To prevail on a “regarded as” claim, a plaintiff must show that her employer regarded her as having an impairment that, if she really had it, would fit under one of the first two prongs of the statute. Francis, 129 F.3d at 285. In other words, as this Court explained in Colwell v. Suffolk County Police Department, 158 F.3d 635 (2d Cir.1998): It is not enough, however, that the employer regarded [the plaintiff] as somehow disabled; rather, the plaintiff must show that the employer regarded [her] as disabled within the meaning of the ADA. Thus, in order to prevail, the plaintiff [was] required to adduce evi*49dence that the [employer] regarded [her] as having an impairment that substantially limited a major life activity. Id. at 646 (citation omitted). Doe must show that the District regarded her not merely as unable to work in her specific job, but disabled from a “broad range of jobs” as compared with “the average person having comparable training, skills, and abilities.” Bartlett v. N.Y. State Bd. of Law Exam’rs, 226 F.3d 69, 82-83 (2d Cir.2000). In the proceedings below, both sides asserted in their Local Rule 56.1 Statements of Undisputed Material fact that Holbert decided to recommend that Doe not be reappointed in November of 2000. See Plaintiffs Rule 56.1 Statement ¶ 20; Defendant’s Rule 56.1 Statement ¶ 22; see also Brief for Plaintiff-Appellant Jane Doe, at 4 (“Less than two weeks after Doe entered the hospital, [ ] Holbert decided to recommend to the Board that Doe be terminated.”). Accordingly, only the information available to him at the time the decision was made can be taken into account in determining whether he regarded Doe as disabled within the meaning of the ADA. See Bartlett, 226 F.3d at 85-86; Heilweil v. Mt. Sinai Hosp., 32 F.3d 718, 725 (2d Cir.1994) (explaining, in a Rehabilitation Act context, that “an employer is only responsible for employment decisions based on information available to it when it decides”). Here, it is undisputed that no one connected with the District, including Holbert, knew anything about Doe’s bipolar disorder at the time the decision was made. The only evidence Doe proffers to establish that Holbert regarded her as disabled at the time he made the decision is the fact that she had told him she was in a psychiatric hospital. See Joint Stipulation of Agreed Facts ¶¶ 91, 93. Under the precedents we are constrained to follow, we conclude that this fact alone is insufficient. Doe argues that the court should take into consideration Holbert’s comments about why he asked her, in March of 2001, to submit to a psychiatric examination before she could return to work that April. Even if this Court could consider this evidence, which does not pertain to the November decision, Holbert’s admitted concerns about whether Doe was able to return to work do not address his perception of her ability to perform a broader range of jobs, the inquiry required by Giordano. This Court’s decision in Col-well held that the fact that the defendant police department required only the plaintiff officers to undergo a physical examination as a condition of promotion did not support an inference that the department regarded them as disabled. 158 F.3d at 647; see also Sullivan v. River Valley School Dist., 197 F.3d 804, 808-09 (6th Cir.1999) (“[A] defendant employer’s perception that health problems are adversely affecting an employee’s job performance is not tantamount to regarding that employee as disabled.”); Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir.1998) (“A request for an evaluation is not equivalent to treatment of the employee as though she were substantially impaired. Employers need to be able to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims ....”) (citations omitted). In the alternative, even if we believed that Doe could establish a prima facie case, the district has proffered substantial evidence of a legitimate non-discriminatory reason for her termination. Plaintiffs evidence that these reasons are mere pretexts for discrimination is the allegations regarding Holbert’s testimony about the psychiatric evaluation, plus a few inconsistencies in the District’s explanation of its reasons. Evidence that could permit *50a jury to believe that the defendant’s proffered reasons are not believable can support an inference that they are pretexts for discrimination. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (holding, in post-trial situation, that factfinder may conclude from the falsity of the employer’s explanation that discrimination was intended, depending upon the factual context). We do not believe that the evidence here is sufficient to permit such an inference, however. We have considered all of appellant’s arguments, and find them to be without merit. The judgment of the district court is AFFIRMED. . “Jane Doe” is of course a pseudonym.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217537/

AMENDED SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 19th day of May two thousand and three. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal of the judgment entered November 28, 2001 is hereby DISMISSED for lack of appellate jurisdiction and the order entered April 26, *512002 denying plaintiffs motion for reconsideration is hereby AFFIRMED. I. Plaintiff David V. Morris appeals from a judgment of the District Court entered November 26, 2001, granting defendants’ motion for summary judgment pursuant to Fed.R.Civ.P. 56, on the grounds that no material issues of fact requiring a trial exist and defendants are entitled to judgment as a matter of law. See Morris v. United Parcel Serv., Inc., No. 98 Civ. 7853 (S.D.N.Y. Nov.28, 2000). Plaintiff also appeals from the District Court’s order entered April 26, 2002, denying plaintiffs motion for reconsideration and adopting the Report and Recommendation of Magistrate Judge Ronald L. Ellis dated June 18, 2001. Plaintiff, a former employee of United Parcel Service, Inc. (“UPS”), brought an action against UPS and his union, Local 804, International Brotherhood of Teamsters, AFL-CIO (“Local 804”), alleging that (1) UPS discharged him in violation of the collective bargaining agreement between UPS and Local 804, and (2) Local 804 violated its duty to represent him fairly at the arbitration hearing regarding his discharge. Id. The District Court granted summary judgment in favor of defendants, holding that the arbitrator’s decision-finding that UPS had just cause to discharge plaintiff and that Local 802 had adequately represented plaintiff-was correct. See id. The District Court also denied plaintiffs motion for reconsideration after finding that it had neither overlooked controlling decisions, nor failed to consider factual matters that were put before the court. See Morris, No. 98 Civ. 7353 (S.D.N.Y. Apr.26, 2002). II. We do not reach plaintiffs substantive arguments regarding the November 26, 2001 order granting summary judgment to defendants because Morris’ appeal is untimely. Judgment was entered November 28, 2001 and Morris did not file his notice of appeal until May 30, 2002, approximately five months after the thirty-day deadline under Federal Rule of Appellate Procedure 4(a). This deadline is jurisdictional. See, e.g., Lichtenberg v. Besicorp, Inc., 204 F.3d 397, 401 (2d Cir.2000). Plaintiffs appeal of the denial of the motion for reconsideration is timely. The Court entered judgment on May 1, 2002 on the April 26, 2002 order denying plaintiffs motion for reconsideration. Plaintiffs notice of appeal was filed on May 30, 2002, within the thirty-day deadline for filing an appeal. See Fed. R.App. P. 4(a). Plaintiff alleged that the District Court’s decision granting summary judgment was “not in accord with the competent and compelling evidence in the case.” In its order denying the motion for reconsideration, the Court observed that the motion had been brought pursuant to Local Civil Rule 6.3, which permits a party to seek reconsideration when the court has overlooked controlling decisions or data, or failed to consider factual matters which were presented to the Court. The District Court found that none of Morris’ arguments met this standard and, accordingly, denied his motion in an order of April 26, 2002, and entered judgment accordingly. We review a District Court’s ruling on a motion for reconsideration for abuse of discretion. See, Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998). We find no abuse of discretion in the District Court’s ruling on the motion for reconsideration. CONCLUSION We have considered all of plaintiffs claims on appeal, and we hereby DISMISS *52the appeal as untimely insofar as it seeks to appeal the judgment entered November 28, 2001, and we AFFIRM the April 26, 2002 order of the District Court denying plaintiffs motion for reconsideration.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217538/

SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 20th day of May, two thousand three. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED that the judgment of the district court be AFFIRMED. Plaintiff-appellant pro se Donald P. Ro-sendale appeals from a judgment entered in the United States District Court for the Southern District of New York (Cote, J.) on February 28, 2002, granting summary judgment to defendants on his 42 U.S.C. §§ 1983 and 1985 claims, and dismissing his pendent state law claims without prejudice pursuant to 28 U.S.C. § 1367.1 In *53essence, Rosendale alleged that defendants violated the Fifth Amendment, the Fourteenth Amendment, and New York state law in the issuance and enforcement of a special use permit for the operation of a rod-and-gun club on land adjacent to his property. We review the district court’s grant of summary judgment de novo. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.1998). In doing so, we construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.1998). Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We affirm for substantially the reasons stated in the district court’s decision. First, Rosendale’s substantive and procedural due process claims fail because he has established no cognizable property interest in the town’s land use regulation and enforcement, which were discretionary. See Gagliardi v. Village of Pawling, 18 F.3d 188, 191-93 (2d Cir.1994) (holding that “a constitutionally protected property interest in land use regulation arises only if there is an entitlement to the relief sought by the property owner”). Second, Rosendale’s § 1985 conspiracy claim fails because he has demonstrated no cognizable federal right, see Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir.1990) (observing that § 1985(3) “provides no substantive rights itself’ and requires plaintiff to establish that defendants sought “to deprive [him] of a right covered by the Constitution or other laws”), and because he has demonstrated no improper discriminatory animus, see Gagliardi, 18 F.3d at 194 (“To recover under section 1985(3), a plaintiff must allege ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” ’) (citation omitted). Third, the district court properly dismissed Rosendale’s pendent state law nuisance claims without prejudice on the ground that questions of New York state law would substantially predominate in their resolution. See Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir.2001) (noting that dismissal of pendent state law claims is appropriate where all federal claims have been dismissed and “it appears that the state issues substantially predominate”) (internal quotation marks omitted); 28 U.S.C. § 1367(c)(3). Rosendale did not pursue a takings claim which at least would have mouthed federal law. See Rosendale v. Iuliano, No. 99 Civ. 11701, 2002 WL 215656, at *7 (S.D.N.Y. Feb.13, 2002). Finally, we decline to consider arguments Rosendale raises for the first time on appeal, including constitutional vagueness. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“It is the general rule ... that a federal appellate court does not consider an issue not passed upon below.”). For the reasons set forth above, the judgment of the district court is hereby AFFIRMED. . Rosendale appeals independently from the district court's subsequent denial of his motions for reconsideration and for leave to amend his complaint. We dispose of that *53appeal in a separate summary order issued today.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217539/

OPINION STAPLETON, Circuit Judge. Appellant, Steelcase, Inc. (“Steelcase”), appeals a $1,338,980 judgment based on a jury verdict finding it liable for a manufacturing defect in a chair it had assembled. Appellee, W. Alan Fillebrown, has cross-appealed the judgment, claiming that the District Court erred when it reduced the jury’s finding on damages by $290,000. I. Fillebrown was injured when he leaned back in his chair while at work. As he leaned back, the metal spindle connecting the base of the chair and the seat broke, and Fillebrown fell to the floor. Filleb-rown brought this diversity action against the chair’s manufacturer, Steelcase, and the manufacturer of the metal spindle, Gordon Manufacturing Co. (“Gordon”). Fillebrown claimed that a manufacturing defect in the spindle caused it to fail. Fil-lebrown settled with Gordon before trial. At trial, the parties’ experts, both qualified as experts in metallurgy and materials failure, provided competing versions of what caused the spindle to break. Filleb-rown’s expert, Dr. J. Stephen Duerr, asserted that the break in the spindle resulted from a manufacturing defect. Duerr asserted that “particularly large machining marks” made while manufacturing the spindle had caused the spindle to develop a fatigue crack and eventually break. App. 180. Steelcase’s expert countered that the spindle fracture was an overload failure resulting from prior abuse of the chair. The jury found that the spindle broke because of a manufacturing defect and returned a verdict of $1,510,000 against Steelcase. Steelcase filed a motion for judgment as a matter of law, or in the alternative, a new trial. The District Court denied the motions for judgment as a matter of law and a new trial. The District Court, however, reduced the judgment by $290,000 to reflect pension pay-*56mente to be received by Fillebrown from his former employer. II. Steelcase first argues that Fillebrown’s expert’s testimony concerning what caused the spindle’s failure was inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir.2000). Fillebrown responds that Steelcase has waived its objections to the expert’s testimony. Fillebrown’s waiver argument fails because he did not raise the waiver issue when Steelcase filed its renewed motion for judgment as a matter of law in the District Court, and the Court decided the Daubert issue on its merits. Houghton v. American Guar. Life Ins. Co., 692 F.2d 289, 294 (3d Cir.1982) (“In the absence of exceptional circumstances, an issue not raised in the district court will not be heard on appeal.”) (internal quotations omitted); Hamilton v. Komatsu Dresser Indus., Inc., 964 F.2d 600, 603 n. 1 (7th Cir.1992) (stating that “Plaintiffs, however, have waived these waiver arguments by failing to raise them before the district court”). We will, therefore, decide Steelcase’s Daubert objection on the merits. This Court reviews a district court’s decision to admit or exclude expert testimony for an abuse of discretion. Oddi, 234 F.3d at 146. We “will not interfere with the district court’s exercise of discretion unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of relevant factors.” Id. (internal quotations omitted). In Daubert, the Court set out four factors with which to evaluate whether scientific evidence was admissible: (1) whether the scientific theory or technique can be tested, (2) whether it has been subject to peer review and publication, (3) the known or potential rate of error associated with the technique, and (4) whether the theory or technique has gained “general acceptance.” Daubert, 509 U.S. at 593-95, 113 S.Ct. 2786. Our court adds four other factors: (5) the existence and maintenance of standards controlling the technique’s operation, (6) the relationship of the technique to methods which have been established to be reliable, (7) the qualifications of the expert witness testifying based on the methodology, and (8) the non-judicial uses to which the method has been put. Oddi, 234 F.3d at 145. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), holds that Daubert’s gatekeeping obligation applies not only to scientific knowledge, but also to testimony based on technical and other specialized knowledge. However, Kumho concludes that the Daubert test for reliability is flexible and that “Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case.” Id. at 142, 119 S.Ct. 1167. The District Court, in denying Steel-case’s renewed motion for judgment as a matter of law, held that Dr. Duerr’s testimony was admissible. It did not abuse its discretion in so ruling. There was no dispute that metallurgy and materials failure analysis are old, well-established sciences. Nor was it disputed that both experts were qualified by training and experience in these areas. Both implicitly acknowledged that a spindle like the fractured one would not be expected to fracture as it did in the absence of a manufacturing defect or abuse of the chair. Dr. Duerr opined that, in this instance, the culprit was a fatigue failure resulting from a machining mark and not an overload failure resulting from *57abuse as Steelcase maintained. He supported this opinion with the following analysis: (1) A fatigue failure would proceed from and follow a machining mark, as this one did, and an overload failure would be so situated only as a matter of chance, a highly unlikely alternative. There are no other likely explanations for the failure. (2) The spindle was made of quite strong metal, and this makes it much less likely that it was affected by abuse and overload. (3) The fact that the crack had progressed 90 percent of the way through the spindle before it broke in two pieces is indicative of a fatigue failure and not an abuse/overload situation. (4) The chair was in good condition and showed no evidence of abuse. (5) Hairline cracks that he observed in two of the three welds on the bottom side of the chair control were consistent with fatigue failure and inconsistent with overload. If the problem were overload, he “would expect either one of the cracks to be very large or ... all three welds to be broken.” App. 189. “Daubert does not set up a test of which opinion has the best foundation, but rather whether any particular opinion is based on valid reasoning and reliable methodology.” Kannankeril v. Terminix Intern’l, Inc., 128 F.3d 802, 806 (3d Cir.1997). Dr. Duerr’s opinion was reasoned and the product of a reliable methodology. It was appropriate for the jury to determine which of the experts’ opinions was the most persuasive. III. Steelcase argues, in the alternative, that the jury verdict should be vacated and that the case should be retried because the court failed to give New Jersey Model Jury Charge (Civil) No. 1.17,1 or any other instruction, advising the jury that Fillebrown had settled with Gordon. A district court’s grant or denial of a new trial motion is reviewed for an abuse of discretion. “[T]he district court’s power to grant a new trial is limited to those circumstances where a miscarriage of justice would result if the verdict were to stand.” Olefins Trading, Inc. v. Han Yang Chem. Corp., 9 F.3d 282, 289 (3d Cir.1993) (internal quotations omitted). See Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir.1989) (“In reviewing the propriety of a jury verdict, our obligation is to uphold the jury’s award if there exists a reasonable basis to do so.”). In assessing jury instructions, we exercise plenary review if the instructions misstate the applicable law. Greenleaf v. Garlock, Inc., 174 F.3d 352, 362 (3d Cir.1999). “In the absence of a misstatement, however, we review the District Court’s decisions regarding jury instructions for abuse of discretion.” Id. We find no legal error or abuse. At the beginning of the trial, the judge instructed the jury as follows: *58During the course of the trial you’ll hear the names of Gordon Manufacturing and Bassick Company. Gordon manufactured and supplied the chair’s metal spindle.... Although Gordon and Bas-sick will not appear and will not be represented during the course of the trial, you may be called upon to evaluate their involvement and to allocate their responsibility for this occurrence despite their absence. You’re not to speculate as to the reason for their absence. Such speculation plays no role in the fact-finding process. FilLApp. 2. After the close of the evidence and the arguments of counsel, the Court instructed the jury to ascertain the amount of money that would “fairly and fully compensate” Fillebrown for all of his damages and then carefully explained to the jury its responsibilities in apportioning liability between Gordon and Fillebrown: I remind you that Gordon manufactured the spindle. Should you find that a manufacturing defect exists, you may have to apportion the responsibility for that defect among Steelcase and Gordon. Each of their proportionate share of fault as determined by you, the jury, shall be expressed in percentages with the assumption that the total shares equal 100 percent. Thus, if it is determined that Steelcase’s proportion of the chair at fault is ten percent, then Steel-case shall only be responsible for ten percent of the damages as determined by the jury. Conversely, if Steelcase’s proportionate share of fault is 90 percent, then Steelcase shall be responsible for 90 percent of the damages as determined by the jury. App. 355-56. Steelcase does not contend that these instructions from the Court regarding apportionment of fault and liability contain any inaccurate statement of the law. With respect to Gordon, the Court instructed that the jury should assess Gordon’s responsibility after determining the total amount of damages that would fairly compensate plaintiff for his loss and that the jury should not speculate about the reasons for Gordon’s absence before the Court. The record provides no reason to believe the jury did not do precisely as it was instructed. Steelcase speculates (1) that the jury may have concluded that Gordon was no longer a going concern and that the plaintiffs recovery from all sources would be limited to the amount of liability it allocated to Steelcase, and (2) that having so concluded, it refused to follow the Court’s instructions regarding allocation between Gordon and Steelcase. The only record basis for this concern of Steelcase is the following segment of the closing argument of plaintiffs counsel: For example, you’re going to have to say X percent to Steelcase and Y percent to Gordon, and whatever percentage, that the higher the percentage you apply to Gordon, the less money that A1 Filleb-rown would get, so, if you gave him a hundred dollars and they’re 25 percent — they’re 75 percent responsible and Gordon is 25 percent responsible, he only gets $75. So the amount, the higher the percentage to Steelcase, the more of the judgment they would pay. The higher the percentage to Gordon, the spindle manufacturer, the less that Steelcase will pay. The higher the amount of liability you may apportion to Gordon, the spindle manufacturer, the less amount of money that Mr. Filleb-rown gets. Steelcase basically gets a credit for any liability you apportion to Gordon. App. 326-27. The penultimate sentence of these remarks can be understood to mean that the *59higher the amount of liability the jury apportions to Gordon, the less award of money that Fillebrown will receive in these proceedings from Steelcase. As so understood, this sentence, as well as the remainder of these remarks, are accurate. "While Steelcase argues that this sentence was intended to communicate that Fillebrown would get nothing beyond what he received in these proceedings, given the context, we believe it very unlikely that the jury received this message and even less likely that it ignored the Court’s instruction not to speculate about Gordon’s absence from the trial. IV. Finally, Steelcase argues that the jury’s liability apportionment of 85 percent to Steelcase and 15 percent to Gordon should be vacated because it was against the weight of the evidence. Fillebrown’s initial response to this argument is that Steelcase waived its objection to the verdict by failing to move for a judgment as a matter of law at the close of evidence. Motions for a new trial based on the fact that the jury’s verdict was against the weight of the evidence are not barred by a party’s failure to move for judgment as a matter of law at the close of all evidence. Greenleaf, 174 F.3d at 365. We will, therefore, consider Steelcase’s argument on the merits. “A court may order a new trial upon the motion of a party or sua sponte where there is insufficient evidence to support the verdict or where the verdict was against the weight of the evidence.” Id. “[N]ew trials because the verdict is against the weight of the evidence are proper only when the record shows that the jury’s verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience.” Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir.1991). We review the District Court’s decision refusing to grant a new trial on the basis that the verdict was not against the weight of the evidence for an abuse of discretion. Greenleaf 174 F.3d at 365. Steelcase compares the jury’s verdict to that in Greenleaf v. Garlock, Inc. In Greenleaf the appellate court panel held that a jury verdict was against the weight of the evidence and ordered a new trial. That case involved several manufacturers and users of asbestos. The jury had returned a verdict allocating liability to the appearing defendants and finding the non-appearing defendants not hable on basically identical facts. Greenleaf 174 F.3d at 367. Our case is distinguishable from Green-leaf. Here, the jury apportioned 15 percent of the fault to Gordon and 85 percent to Steelcase. Steelcase’s argument can be boiled down to the assertion that because Gordon manufactured the spindle, it was the more culpable party; thus, it was error for the jury to apportion 85 percent of the liability to Steelcase. Unlike Greenleaf here the jury did apportion a percentage of liability to the non-appearing defendant, Gordon, and the degree assigned was consistent with the role that it played. The jury’s apportionment of liability in this case does not shock the conscience or cry out to be overturned. The jury could reasonably conclude that Steelcase, as the ultimate manufacturer of the chair, was the more culpable party because it was responsible for placing the defective chair into the stream of commerce. Also, Steel-case’s trial strategy of insisting that the spindle was not defectively manufactured had the effect of minimizing the focus placed on Gordon’s culpability. Y. Fillebrown cross-appeals the trial judge’s decision to reduce his recovery by $290,000. He contends that the District *60Court was merely speculating when it concluded that the jury failed to account for Fillebrown’s pension in awarding damages based on the loss of future earnings. He alternatively argues that under New Jersey law, the jury was not required to account for Fillebrown’s pension in awarding damages. We will disturb a district court’s determination with respect to remittitur only for an abuse of discretion. Evans v. Port Auth. of New York & New Jersey, 273 F.3d 346, 355 (3d Cir.2001). The District Court’s remittitur of damages was not mere speculation. During the testimony regarding damages, Filleb-rown’s expert testified that Fillebrown’s after-tax income, had he continued working at AT & T, would have been $88,628 per year, making a total of $886,280 over the ten years before his retirement. Reply Brief for Appellant, Ex. B at 20. The expert calculated that the present value of this future lost income was $836,000. Id. at 24. The expert then testified that this income should be reduced by the present value of Fillebrown’s pension, which he calculated to be $290,000. Id. at 29. The expert also calculated Fillebrown’s past wage loss as $171,750. Id. at 31. The jury awarded Fillebrown $886,000 for losses from future wages, $172,000 for lost past wages, and $452,000 for pain and suffering. These numbers understandably led the District Court to conclude that the jury adopted the expert’s findings as to lost past wages and future wages but failed to discount the latter to present value. The District Court also understandably concluded that the jury had also not reduced future lost wages by the amount of Fillebrown’s pension, and it reduced the award by that amount. We find nothing here that can accurately be described as speculation. Fillebrown insists that New Jersey law does not permit a reduction for future pension benefits. He points to Rusk v. Jeffries, 110 N.J.L. 307, 164 A. 313 (N.J.Err. & App.1933), and Bandel v. Friedrich, 235 N.J.Super. 384, 562 A.2d 813 (App.Div.1989), for the proposition that, pursuant to the collateral source rule, pension payments should not reduce the plaintiffs recovery. In Kiss v. Jacob, 138 N.J. 278, 650 A.2d 336 (1994), the New Jersey Supreme Court held that N.J.S.A. 2A: 15-97 did away with the collateral-source rule. Id. at 337. N.J.S.A. 2A:15-97 provides that: In any civil action brought for personal injury or death ... if a plaintiff receives or is entitled to receive benefits for the injuries allegedly incurred from any other source other than a joint tortfeasor, the benefits, other than worker’s compensation benefits or the proceeds from a life insurance policy, shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff, less any premium paid to an insurer directly by the plaintiff or by any member of the plaintiffs family on behalf of the plaintiff for the policy period during which the benefits are payable.... In the course of holding that the statute did away with the collateral source rule, the Kiss court noted that the collateral source rule included amounts recovered “from pensions under special retirement acts.” Kiss, 650 A.2d at 338. It seems clear that double recovery from pension payments to the injured is within the scope of § 2A:15-97. In Parker v. Esposito, 291 N.J.Super. 560, 677 A.2d 1159 (App.Div.1996), the court observed: Our Supreme Court addressed [N.J.S.A. 2A:15-97] in Kiss v. Jacob .... There, the Court held that the statute did not apply to the proceeds of a settlement with a defendant determined not to have *61been a tortfeasor. The Court ruled that the statute focused on the types of benefits contemplated by the common-law collateral source rule which the statute eliminated. Those common-law collateral sources included “life-or health-insurance policies, [benefits] from employment contracts, from statutes such as workers’ compensation acts and the Federal Employers’ Liability Act, from gratuities, from social legislation such as social security and welfare, and from pensions under special retirement acts.” Id. at 1161-62 (citations omitted). See also Thomas v. Toys R Us, Inc., 282 N.J.Super. 569, 660 A.2d 1236, 1244 (App.Div.1995) (“The benefits that the Legislature focused upon in enacting N.J.S.A. 2A:15-97 include life- or health-insurance policies, social security and welfare payments, and pension benefits.”). Both cases cited by Fillebrown, Rusk and Bandel, were based on causes of action arising before the effective date of § 2A:15-97. Therefore, they provide no support for Fillebrown’s position that New Jersey law does not allow pension payments to be taken into account. See Bandel v. Friedrich, 122 N.J. 235, 584 A.2d 800, 804 (1991). Under New Jersey law, pension benefits must be excluded to prevent double recovery. Because the District Judge correctly decided that the jury had failed to account for Fillebrown’s pension when it made its award, its reduction of $290,000 from lost future earnings was not an abuse of discretion. VI. The judgment of the District Court will be affirmed. . New Jersey Model Jury Charge (Civil) No. 1.17 includes, inter alia, the following instructions: Before the trial started [named defendants) ] settled with the plaintiff in a sum of money, the amount of which is of no concern to you. s¡! % s£ # # Jfc In computing these damages you must not be concerned with the number of defendants who were originally in the case nor with the number of defendants remaining. You must not be concerned with those defendants who have made settlements with the plaintiff. You must not speculate as to what the plaintiff may or should have received in those settlements.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217540/

OPINION AMBRO, Circuit Judge. The Appellant, Alfred Mele, pled guilty to charges of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)®, and criminal conspiracy to commit interstate transportation of falsely made and forged securities, in violation of 18 U.S.C. §§ 371 and 2314, resulting from his participation in an odometer-rollback scheme. The Government recommended that the District Court depart downward two levels from the United States Sentencing Guidelines (“U.S.S.G.”), pursuant to U.S.S.G. § 5K1.1, based on Mele’s “substantial assistance” to law enforcement officers. Mele also requested a separate downward departure under U.S.S.G. § 5H1.4, in light of his serious health condition. The District Court granted the Government-recommended § 5K1.1 departure but denied *68the § 5H1.4 departure, sentencing Mele to thirty months imprisonment, a special assessment of $200, and a fine of $40,000. Mele appeals the District Court’s denial of a downward departure under § 5H1.4. U.S.S.G. § 5H1.4 provides that “an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.” Mele argues that the District Court erred in not departing down from the U.S.S.G. in light of his history of prostate cancer, heart problems, and diabetes. He also contends that the District Court erred in imposing a sentence “at least twice as great as that of any other Co-Conspirator.” While we do not doubt the seriousness of Mele’s condition, we lack jurisdiction to review the District Court’s refusal to depart downward. We may only review a claim for downward departure when the District Court was not aware of its authority to do so. United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir.1991) (“If we determine the district court was aware of its authority to depart from the Guidelines, and chose not to, we are without power to inquire further into the merits of its refusal to grant [appellant’s] request.”); United States v. Denardi, 892 F.2d 269, 272 (3d Cir.1989); see also United States v. Miele, 989 F.2d 659, 668 n. 11 (3d Cir.1993). Here, the District Court was clearly aware of its authority to depart downward. We also note the availability of federal healthcare facilities to attend to Mele’s medical needs, as well as the fact that the thirty-month sentence the District Court imposed is seven months less than the Government-recommended sentence and sixteen months less than the sentence that the Court could have imposed without departing. In this light, we lack jurisdiction to consider Mele’s claim.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217542/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Bernard Duncan appeals the district court’s orders dismissing his discrimination action and denying his motion for judicial recusal. We have reviewed the record and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Duncan v. Virginia, No. CA-02-616-3 (E.D. Va. Oct. 4 & Dec. 12, 2002). Duncan also seeks to appeal this Court’s May 25, 2001, opinion affirming the district court’s dismissal of his previous discrimination action. Duncan v. Commonwealth of Virginia, No. 00-2551, 9 Fed.Appx. 236, 2001 WL 565672 (4th Cir. May 25, 2001) (unpublished). We have previously denied both Duncan’s rehearing petition as to this decision and his motion for reconsideration of the denial of his rehearing petition. No further “appeal” to this Court is available. 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217555/

Dismissed by unpublished PER CURIAM opinion. PER CURIAM. Alexander Pastene seeks to appeal the magistrate judge’s order remanding his civil action to state court. The magistrate judge’s remand order is not reviewable. See 28 U.S.C. § 1447(d) (2000). Accordingly, we dismiss the appeal for lack of jurisdiction. 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224369/

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ALAN C. KAY, Senior District Judge. PROCEDURAL BACKGROUND On February 7, 2013, Plaintiff Shannon Wigent (“Plaintiff”) filed a Complaint against Science Applications International Corporation, now known as Leídos Holdings, Inc. (“Leídos” or “Defendant”), in the Circuit Court of the First Circuit, State of Hawaii. (Doc. No. 1 (“Notice of Removal”) Ex. A.) On March 13, 2013, Leídos removed the case to this Court pursuant to 28 U.S.C. §§ 1332 and 1441. (Notice of Removal at ¶ 4.) On March 20, 2013, Leí-dos filed an Answer to Plaintiffs Complaint. (Doc. No. 5.) Plaintiffs Complaint pleads claims arising out of her termination of employment from Leídos. Plaintiffs first claim alleges that Leídos discriminated against her on the basis of her marital status in violation of Hawaii Revised Statute (“H.R.S.”) § 378-2(1). (Compl. at ¶¶ 31-36.) Plaintiff also brings retaliation claims, pursuant to H.R.S. 378-2(2). (Id. at ¶¶ 37-40, 42-46.) Leídos filed the instant Motion for Summary Judgment (“Motion” or “Mot.”) along with a Concise Statement of Facts (“Defi’s CSF”) on February 18, 2014, seeking summary judgment as to all the claims asserted by Plaintiff. (Doc. Nos. 48-49.) On February 20, 2014, Leídos filed an Errata in order to correct Exhibit 1 of its Concise Statement of Facts. (Doc. No. 51.) In the original Exhibit 1, Leídos omitted the first half of Exhibit 1 and uploaded the second half twice. (Id.) A complete copy of Exhibit 1 is attached to the Errata. (Id.) On March 26, 2014, Plaintiff filed her Opposition to Defendant’s Motion (“Opp.”) along with a Concise Statement of Facts (“Pl.’s *1018CSF”). (Doc. Nos. 54-55.)1 Leídos filed a Reply (“Reply”) on April 7, 2014. (Doc. No. 57.) Also on April 7, 2014, Leídos filed objections and a response to Plaintiffs Concise Statement of Facts (“Def.’s Obj.’s”). (Doc. No. 58.) The Court held a hearing regarding Defendant’s Motion on April 21, 2014. (Doc. No. 62.) FACTUAL BACKGROUND2 A. Background, on Leídos, Formerly Known as SAIC Prior to September 27, 2018, Leídos was known as Science Applications International Corporation (“SAIC”). (Def.’s CSF at 2, ¶ 1; Pl.’s CSF at 1, ¶ 1.) The original SAIC was a scientific, engineering and technology applications company that served commercial and government customers. (Id.) On September 27, 2013, SAIC changed its name to Leídos and spun off a separate new corporation, which kept the name SAIC. (Declaration of Jim Murray (“Murray Decl.”) ¶ 5.) The divisions which Plaintiff and her husband (collectively “the Wigents”) worked for remained under Leídos. (Id.) In 2002, Leídos3 was awarded a federal government contract, the Maritime Synthetic Range (“MSR”), to be integrated on the island of Kauai, State of Hawaii. (Defi’s CSF at 3, ¶3; Pl.’s CSF at 1, ¶3.) In 2005, as a follow-up to the MSR program, the Pacific Region Integrated Test and Evaluation Capability (“PRITEC”) program was awarded to Leídos. (Defi’s CSF at 3, ¶ 4; Pl.’s CSF at 1, ¶4.) The PRITEC project lasted for several years and ended in 2011 when federal funding ceased. (Id.) B. Plaintiff and Her Husband Begin Working at Leídos Leídos hired Plaintiff as a Systems Engineer in October 2001. (Def.’s CSF Ex. 1 (“Pl.’s Dep.”) 20:10-23.) Plaintiff began working at the company’s Virginia office. (Id.) In March 2002, Plaintiff was transferred to Kauai to help implement the MSR program. (Def.’s CSF at 3, ¶ 5; Pl.’s CSF at 1, ¶ 5.) Leídos hired Plaintiffs husband, Mark Wigent (“Mark”), in February 2002, also as a Systems Engineer to help implement a separate program located on Kauai. (Pl.’s Dep. 27:8-16.) On March 16, 2002, Leídos relocated Plaintiff and her husband from Virginia to Kauai. (Def.’s CSF at 3, ¶ 7; Pl.’s CSF at 1, ¶ 7.) Plaintiff concedes that her husband was initially hired to implement a separate program on Kauai. (PL’s Dep. 27:8-16.) Plaintiff asserts, however, that by November 2002, both her and her husband had started working on the MSR program. (Decl. of Pl. ¶ 8.) Leídos contends that the Wigents only began working on the MSR *1019program together in late 2004. (Def.’s CSF at 4, ¶ 9.) C. SH-2 Policy Adopted In 2004, Leídos adopted Staffing Policy SH-2 (“SH-2”). (Id. at 3, ¶ 8; Pl.’s CSF at 1, ¶ 8.) The purpose of SH-2 is to [e]nsure that a supervisor or manager does not have closely related individuals (such as a spouse, domestic partner, person involved in a dating relationship, children, stepchildren, parents, in-laws, or siblings) under his or her direct or indirect supervision in order to prevent potential conflicts of interest and/or allegations of favoritism or sexual harassment. (Pl.’s Dep. Ex. 2.) Section 3.6.1 of SH-2 defines the terms “direct supervision” and “indirect supervision” as follows: Direct supervision Includes any of the following responsibilities: assigning work, conducting performance or salary reviews, approving timecards or expense reports, or making recommendations affecting the person’s employment, compensation, or retention. Indirect supervision Having program management, profit and loss (P & L), or budgetary responsibility for the affected group, business unit, or organization. (Id.) D. 2005 Assessment In late 2004, Plaintiff was working with the MSR program under division 1548, and Mark, under division 1805, became the Program Manager (“PM”) for the MSR program. (Def.’s CSF at 4, ¶ 9; PL’s CSF at 1, ¶ 9.) As the PM, Mark’s responsibilities included managing the people assigned to the MSR, interfacing with the customer, ensuring customer satisfaction, and ensuring the program remained within budget and on schedule. (Id.) Mark’s supervisor, Steven Karwoski, in late 2004 raised the issue of whether the working relationship between Plaintiff and her husband violated SH-2 because Plaintiff was working on the MSR program while Mark was the Project Manager. (Id.) As a result, in January 2005, an assessment of whether the Wigents’ working relationship violated SH-2 was administered. (Defi’s CSF at 4, ¶ 11; PL’s CSF at 1, ¶ 11.) The assessment was conducted by Karwoski, Leídos’ Human Resources Senior Vice President Marjorie Bailey, and Plaintiff’s division supervisor Sam Mudrak. (Deck of Murray ¶ 13.) Ultimately, Leídos did not find a violation of SH-2 policy because the Wigents, Karwoski, Bailey, and Mudrak agreed upon a “MSR Organizational Structure” plan in which Plaintiff was to become a program consultant to the MSR program. (PL’s Dep. 65:5-66:14 & Ex. 5; Def.’s CSF Exs. 3-4.) Under the MSR Organizational Structure plan, Plaintiff would also not receive work assignments from her husband, and she would work in future program development, rather than current project execution. (PL’s Dep. Ex. 5.) Although the Wigents’ supervisors and Leí-dos’ Human Resources representative approved the plan, they stated that “[i]f the business circumstances change, we will need to revisit the issue.” (Def.’s CSF Exs. 3-4.) From 2005 to 2008, Plaintiff and her husband continued to work on the same project but in separate divisions and under different management chains. (Defi’s CSF at 4, ¶ 14; PL’s CSF at 1, ¶ 14.) During this time, Plaintiff also worked on a project that her husband was not assigned to: the Unmanned Test Bed. (PL’s Dep. 39:24-40:9, 56:22-24.) E.2008 and 2009 Assessments In 2007, Plaintiff began working on the PRITEC project where her husband was *1020the PM. (Def.’s CSF at 5, ¶ 15; Pl.’s CSF at 1, ¶ 15.) On October 29, 2008, Leídos conducted an assessment of Plaintiff and her husband’s working relationship. (PL’s Dep. Ex. 6; Pl.’s CSF Ex. M.) The assessment report was prepared by Mudrak, Plaintiffs division supervisor, and sent to Iva Heflin (Leídos’ Human Resources Manager) and Reed Heddleston (Leídos’ Operations Manager). (Id.) In the October 2008 assessment report, Mudrak found that the Wigents’ working relationship did not violate SH-2 because there was no direct or indirect supervisory relationship between Plaintiff and her husband, as defined by SH-2. (Id.) Specifically, Mudrak found that there was no direct supervisory relationship because (1) Plaintiff was a consultant on PRITEC and did “not receive specific tasking or work under direct supervision from Mark”; (2) Plaintiffs role on PRITEC was, “by its very nature, independent of the program execution work being directed by Mark”; (3) Mark did “not direct or provide any inputs” to Plaintiffs assignments or reviews; and (4) on all non-PRITEC projects, Plaintiff had no “programmatic link” to the work her husband was doing. (Id.) Mud-rak further determined that there was no indirect supervisory relationship because “[wjhile Mark is the PM on PRITEC[,] he has no responsibilities that impact [Plaintiff] within Division! ] 1548 ... All indirect matters regarding [Plaintiff] are dealt with by [Plaintiffs immediate supervisor] or me.” (Id.) Accordingly, Mudrak concluded that there was “no direct supervision and no indirect supervision issues regarding Policy SH-2 that are applicable to the particular situation.” (Id.) (emphasis in original.) Mudrak further stated that he “will make certain that position and role assignments in the future are carefully reviewed” in the context of SH-2, prior to any changes to the Wigents’ work assignments. (Id.) On November 30, 2009, Mudrak completed an additional assessment report on whether the Wigents’ working relationship violated SH-2. (Def.’s CSF Ex. 5.) The results of the assessment report were sent to Heddleston and Angela Marquez, Leí-dos’ Human Resources Manager. (Id.) For virtually the same reasons as those listed in the 2008 assessment report, Mud-rak found that there was no violation of the SH-2 policy because there was no direct or indirect supervisory relationship between Plaintiff and her husband. (Id.) Consequently, Plaintiff continued to work on PRITEC and another project from 2007 through 2010, both with her husband as PM. (Def.’s CSF at 5, ¶ 18; PL’s CSF at 2, ¶ 18.) Plaintiff was considered a consultant to those projects, not subject to the direction of the PM. (Id.) Her work on Mark’s projects included: external customer interface and demonstrations; creating and keeping program documentation; and assisting the customer with any documentation they may need for annual reports or briefings. (Id.) Plaintiff asserts that the 2008 and 2009 reports only focus on the structural separation between the two divisions in which she and her husband worked, and do not place any significance in the amount of time she spent on a project in which her husband was the PM. (Decl. of Pl. ¶¶ 20-21.) Plaintiff states that around the time Leídos performed the 2008 and 2009 assessments, she charged at least ninety percent of her time to Mark’s PRITEC project. (Id. ¶¶ 21-22.) Leídos admits that “from 2008 to her removal from the PRI-TEC contract in 2011, Plaintiff charged 90-100% of her time to projects in which Mark Wigent was the Project Manager.” (PL’s CSF Ex. H at 4-5.) *1021 F. 2011 Assessment From January to mid-March 2011, Leidos conducted an assessment of the working relationship between Plaintiff and her husband. (Def.’s CSF Ex. 7.) The investigation into the Wigents’ working relationship was triggered by Edwin Foreman, Mark’s division manager, who questioned Mark’s submission of a budget proposal for a project called “EQDR.” (Id. Ex. 6.) Leidos contends that “Mark included Plaintiff on a staffing plan for the PRITEC program” and, as a result, Foreman reported to HR a potential violation of SH-2. (Def.’s CSF at 5, ¶ 19.) According to Plaintiff, her name had been placed on the EQDR proposal to merely represent the need in the budget for a systems engineer. (Decl. of .PI. ¶ 30.)4 In other words, Plaintiff asserts that her name was a “placeholder” and that the placement of her name on the proposal did not mean that she would be assigned work on the project. (Id.) Plaintiff further asserts that the amount of work her husband allocated on the EQDR proposal for the particular systems engineer represented by her name was approximately five percent of the total budget for the project. (Id.) The 2011 assessment report was prepared by Jim Murray (Leidos’ Vice President of Human Resources), Foreman, and Sergio Nirenberg (Plaintiffs supervisor). (Def.’s CSF Ex. 7.) The report provides, in relevant part: Background. During a recent proposal effort (EQDR), Mark, as the Program Manager, included [Plaintiff] in the staffing plan which raised concerns about a potential conflict with the SH-2 policy. This concern was raised by Division Manager Ed Foreman. Given the recent SAIC reorganization and the concerns raised by Ed Foreman, a reassessment of the possible nepotism issues regarding the relationship between [Plaintiff] & Mark is recommended to ensure compliance with SAIC policy SH-2 and to ‘prevent potential conflicts of interest and/or allegations of favoritism or sexual harassment.’ *1022[Plaintiff] and Mark Wigent are married. Direct Supervision Discussion. Although Mark’s responsibilities do not include conducting [Plaintiffs] performance or salary reviews, approving her timecards or expense reports, he does manage the overall work of the program, he may be assigning work to [Plaintiff] and he may affect [Plaintiffs] employment if there was a funding reduction on the program. Indirect Supervision Discussion. Mark has overall Program Management responsibility over the programs that [Plaintiff] works. All of [Plaintiffs] work is in support of two programs on which Mark is the PM (PRITEC and DCDS). In previous SH-2 assessments, [Plaintiff] was working under TENA and not exclusively under PRITEC. The policy lists ‘program management’ as an indirect supervision area. Conclusion: It is management and HR’s conclusion that there is a violation of SH-2 in the area of indirect supervision and potentially in the area of direct supervision. Management, in conjunction with HR, needs to address the working relationship to comply with the SH-2 policy. (Id.) (emphasis in original). Leídos contends that the 2011 assessment revealed that Plaintiffs involvement on her husband’s projects “was more extensive than was previously realized.” (Def.’s CSF at 5, ¶ 20.) Plaintiff asserts that Leídos’ HR personnel, the divisions, and the division managers were “fully aware of the extent to which Plaintiff worked on Mark’s projects.” (Pl.’s CSF at 2, ¶ 20.) Plaintiff further asserts that there had been no changes to the Wigents’ working relationship, the structure established by Leídos to comply with SH-2, or the nature of the Wigents’ work since the previous 2005, 2008 and 2009 assessments. (Decl. of PI. ¶ 32.) Following the 2011 assessment report, Leídos’ supervisors and HR discussed various alternatives for restructuring the Wigents’ jobs in order to rectify the violation of SH-2. (Def.’s CSF at 6, ¶ 22; Pl.’s CSF at 2, ¶ 22.) On March 28, 2011, via teleconference, the Wigents, Foreman, Roger Medd (Mark’s immediate supervisor), Nirenberg, Alicia Larosa-Lowe (Leí-dos’ Senior Human Resources Generalist), and Murray discussed the best course of action to avoid a direct or indirect supervisory relationship. (Def.’s CSF Ex. 9.) Murray suggested having Plaintiffs husband step down as PM; but Mark “indicated that it didn’t make sense for him to not be the PM on the project.” (Id.) As a result, Leídos decided to remove Plaintiff from PRITEC effective April 5, 2011. (Id.) Nirenberg and Leídos’ HR personnel stated during the March 28, 2011 teleconference meeting that they would help “redeploy” Plaintiff. (Id.) On April 5, 2011, Plaintiff was removed from PRITEC and notified that if she was unable to find another position she would eventually have to be laid-off from the company. (Def.’s CSF at 6, ¶ 25; PL’s CSF at 2, ¶ 25.)5 A few weeks later, on April 20, 2011, Plaintiff sent a letter to Leídos through her legal counsel stating her belief that being removed from PRI-TEC was unlawful and in violation of Ha*1023waii’s antidiscrimination law. (Ph’s Dep. Ex. 10.) G. Asserted Attempts to Restructure Plaintiff’s Employment Leidos contends that, around April 2011, Plaintiff was asked if she would consider transferring to another location, which she declined. (Def.’s CSF at 7, ¶ 27.) Leidos further contends that in April and May 2011 Nirenberg (Plaintiffs supervisor) contacted the other program managers in his division and inquired whether there was work for her in those programs. (Def.’s CSF at 7, ¶ 28.) Nirenberg states in his declaration that due to both the location and Plaintiff not being a software developer, he was unable to find any work for her on these other programs. (Declaration of Sergio Nirenberg (“Nirenberg Deck”) ¶ 8.) Nirenberg further states that between April and August 2011 he worked with Plaintiff to respond to a proposal in which Plaintiff would have had full-time work as the systems engineer on another project; however, Leidos did not win the contract for that project. (Id. ¶ 9.) Plaintiff disputes Leidos’ contentions and asserts that “[o]ther than vaguely asking if I would be interested in working ‘part-time’ [Nirenberg] did not contact me about specific and available jobs.” (Decl. of PI. ¶ 58.) Plaintiff further notes that Leidos did not attempt to place her on the “redeployment list” until after she was informed of her termination of employment from Leidos on November 4, 2011. (Deck of Murray ¶ 26.) According to Plaintiff, the “redeployment list is shared with managers and departments who are [in] need of employees currently employed but without ‘coverage.’ ” (Id. ¶ 57.)6 At the April 21, 2014 hearing, Leidos conceded that the company should have placed Plaintiff on the redeployment list following her removal from PRITEC. (Rough Transcript at 46.) Plaintiff stated during her deposition that she had access to internal job postings on the company’s website in 2011, but she did not apply to any job listings on the website or discuss her resume or job options with Leidos’ HR personnel. (Ph’s Dep. 121:7-16; 135:21-138:1; 197:16-198:20.) Plaintiff further stated that she submitted an updated resume to the company website and regularly reviewed the website, but found no positions that could be performed from her home in Kauai. (Id. 139:18-141:4.) On June 29, 2011, Nirenberg spoke with Plaintiffs husband about stepping down as PM in order to eliminate any potential violations of SH-2. (Def.’s CSF Ex. 13.) The following day, on June 30, 2011, Mark sent an email to Nirenberg stating that he declined to step down from his PM position. (Id.) In August 2011, Nirenberg asked Plaintiff if she would consider working part-time in a marketing position. (Ph’s Dep. 171:19-172:17; Deck of Nirenberg ¶ 12.) On August 3, 2011, via email, Plaintiff declined the part-time offer and stated the following: I believe that the reason stated by SAIC for not permitting me to continue in my position, violation of Policy SH-2, is unlawful. Therefore, I ask that SAIC permit me to continue working in the position for which I was hired, with the same terms and conditions. *1024(Def.’s CSF Ex. 14.) Plaintiff asserts that, in response to her August 3, 2011 email, Nirenberg told her that HR was going to begin the lay-off process. (Pl.’s Dep. 172:12-17.)7 Plaintiff further asserts that her husband offered to step down as PM in August 2011, but Leidos still continued with the lay-off process. (Decl. of Pl. ¶ 59.)8 On November 4, 2011, Leidos issued a Notice of Lay-off to Plaintiff. (Def.’s CSF at 8, ¶ 36; Pl.’s CSF at 2, ¶ 36.) Plaintiff was given the option to terminate her employment on December 2, 2011, or take leave without pay for four extra weeks (until December 30, 2011) in order to remain covered under her benefit plans and seek any available positions within Leidos. (Def.’s CSF Ex. 15.) Plaintiff chose the first option. From November 11, 2011, to November 29, 2011, Plaintiff was placed on Leidos’ redeployment lists. (Def.’s CSF at 8, ¶ 37; Pl.’s CSF at 2, ¶ 37.) Plaintiff was officially separated from employment with Leidos on December 2, 2011. (Def.’s CSF at 8, ¶ 38; PL’s CSF at 2, ¶ 38.) II. Plaintiff s Allegations of Discrimination Plaintiff asserts that her and her husband’s working relationship that Leidos claimed violated SH-2 had not only been condoned by, but created by, the company for its benefit; and that it had been approved by the company’s HR department in 2005, 2008, and 2009. (Decl. of Pl. ¶¶ 25, 31-32, 41.) According to Plaintiff, Leidos applied SH-2 differently to non-married closely related employees and permitted them to continue working without penalty. (Id. ¶¶ 66-70.) Plaintiff also asserts that Plaintiff retaliated against her and her husband for complaining about the alleged marital status discrimination. (Compl. at ¶¶ 37-40, 42-46.) On July 7, 2011, Plaintiff filed a “Pre Complaint Questionnaire” with the Hawaii Civil Rights Commission (“HCRC”). (Decl. of Pl. ¶ 46.) On September 24, 2011, Plaintiff filed a formal Charge of Discrimination with the HCRC alleging marital status discrimination and retaliation in violation of H.R.S. § 378-2. (PL’s Dep. Ex. 14.) After her termination, Plaintiff filed an Amended Charge of Discrimination on January 13, 2012, adding to her original charge “the fact that she has been laid-off from SAIC.” (PL’s CSF Ex. E.) STANDARD A party may move for summary judgment on any claim or defense — or part of a claim or defense — under Federal Rule of Civil Procedure (“Rule”) 56. Summary judgment “should be granted ‘if the mov-*1025ant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Maxwell v. Cnty. of San Diego, 697 F.3d 941, 947 (9th Cir.2012) (quoting Fed. R.Civ.P. 56(a)). Under Rule 56, a “party asserting that a fact cannot be or is genuinely disputed must support the assertion,” either by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The substantive law determines which facts are material; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted) (emphasis in original). A genuine issue of material fact exists if “a reasonable jury could return a verdict for the nonmoving party.” United States v. Arango, 670 F.3d 988, 992 (9th Cir.2012) (quoting Anderson, 477 U.S. at 247, 106 S.Ct. 2505). Conversely, “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Scott, 550 U.S. at 380, 127 S.Ct. 1769. The moving party has the burden of persuading the court as to the absence of a genuine issue of material fact. Avalos v. Baca, 596 F.3d 583, 587 (9th Cir.2010).9 If the moving party satisfies its burden, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir.2010). The nonmoving party must present evidence of a “genuine issue for trial,” Fed.R.Civ.P. 56(e), that is “significantly probative or more than merely col-orable.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir.2009) (citation omitted). Summary judgment will be granted against a party who fails to demonstrate facts sufficient to establish “an element essential to that party’s case and on which that party will bear the burden of proof at trial.” Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794, 798-99 (9th Cir.2010) (citation omitted). When evaluating a motion for summary judgment, the court must “view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The court may not, however, weigh conflicting evidence or assess credibility. In re Barboza, 545 F.3d 702, 707 (9th Cir.2008).10 *1026Accordingly, if “reasonable minds could differ as to the import of the evidence,” summary judgment will be denied. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. DISCUSSION I. Plaintiffs H.R.S. § 378-2(1) Marital Status Discrimination Claim In her first claim, Plaintiff alleges that Leídos discriminated against her on the basis of her marital status in violation of H.R.S. § 378-2(1). (Compl. at ¶¶ 31-86.) H.R.S. § 378-2 provides in pertinent part: (а) It shall be an unlawful discriminatory practice: (1) Because of ... marital status ... (A) For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment!.] H.R.S. § 378-1 defines “marital status” as “the state of being married or being single.” The Hawaii Supreme Court has stated that, when addressing employment discrimination claims brought under H.R.S. § 378-2, the courts look to “interpretation of analogous federal laws by the federal courts for guidance.” Schefke v. Reliable Collection Agency, Ltd., 96 Hawai'i 408, 425, 32 P.3d 52 (Haw.2001) (citing Shoppe v. Gucci America, Inc., 94 Hawai'i 368, 377, 14 P.3d 1049 (Haw.2000)). Although Title VII of the 1964 Civil Rights Act does not include “marital status” in its list of protected categories covered by the federal antidiscrimination statute, see 42 U.S.C. § 2000e-2, Hawaii courts in construing H.R.S. § 378-2 have analyzed federal court decisions involving other types of employment discrimination claims. See Shoppe, 94 Hawai'i at 378-81, 14 P.3d 1049 (analyzing H.R.S. § 378-2 age discrimination claim under federal law); Sam Teague, Ltd. v. Hawaii Civil Rights Comm’n, 89 Hawai'i 269, 281, 971 P.2d 1104 (Haw.1999) (analyzing H.R.S. § 378-2 sex discrimination claim under federal law); Furukawa v. Honolulu Zoological Soc’y, 85 Hawai'i 7, 12-14, 936 P.2d 643 (Haw.1997) (analyzing H.R.S. § 378-2 race discrimination claim under federal law). Accordingly, this Court will examine federal cases under Title VII in order to analyze Plaintiffs H.R.S. § 378-2(1) marital status discrimination claim. The Ninth Circuit has held that a plaintiff may establish her Title VII case by “simply producing] direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated [the employer].” McGinest v. GTE Service Corp., 360 F.3d 1103, 1122 (9th Cir.2004). Direct evidence is evidence “which, if believed, proves the fact of discriminatory animus without inference or presumption.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir.2005). Such evidence is usually composed of “clearly sexist, racist, or similarly discriminatory statements or actions by the employer.” Id. In contrast, circumstantial evidence constitutes “evidence that requires an additional inferential step to demonstrate discrimination.” Id. at 1095. A plaintiffs circumstantial evidence must *1027be both specific and substantial in order to survive summary judgment. Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162, 1163 (9th Cir.2009) (citing Bergene v. Salt River Project Agr. Imp. And Power Dist., 272 F.3d 1136, 1142 (9th Cir.2001)). Alternatively, in order to evaluate the evidence in an orderly way, federal courts may use the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to analyze Title VII employment discrimination claims. Hawn v. Executive Jet Management, Inc., 615 F.3d 1151, 1155 (9th Cir.2010); see Hac v. University of Hawaii, 102 Hawai’i 92, 101, 73 P.3d 46 (Haw.2003) (“This court has adopted the McDonnell Douglas analysis in HRS § 378-2 discrimination cases.”) and Schefke, 96 Hawai’i at 441, 32 P.3d 52 (adopting a three-prong test for § 378-2(1) claim and noting that it “is consistent with the McDonnell Douglas framework this court has followed in Shoppe, Sam Teague, and Furukawa ”); see also Shoppe, 94 Hawai’i at 378-81, 14 P.3d 1049; Sam Teague, 89 Hawai’i at 279, 971 P.2d 1104; Furukawa, 85 Hawai’i at 12-14, 936 P.2d 643. A. Direct Evidence: Whether SH-2 is Per Se Discriminatory Although they have differing interpretations of its impact, both parties acknowledge that the Hawaii Supreme Court’s decisions in Ross v. Stouffer Hotel Co. (Hawaii) Ltd., Inc., 72 Haw.350, 816 P.2d 302 (Haw.1991) (“Ross I”) and Ross v. Stouffer Hotel Co. (Hawaii) Ltd., Inc., 76 Hawai’i 454, 879 P.2d 1037 (Haw.1994) (“Ross IT’) (collectively “the Ross cases” or “the Ross decisions”) are the leading (and only) Hawaii cases directly addressing H.R.S. § 378-2(l)’s prohibition on marital status discrimination. In the Ross cases, Stouffer Hotels terminated Harvey Ross as a massage therapist at Waiohai Resort on Kauai after determining that his wife, the principal massage therapist and Harvey’s direct supervisor, could not work in the same department due to the company’s “no-relatives policy.” Ross, 72 Haw. at 351, 816 P.2d 302. That policy prohibited persons related by blood or marriage from working in the same department. Id. With respect to married couples, the policy stated that if the couple married “after being employed ... one of the two will be asked to transfer or resign.” Id. The Hawaii Supreme Court concluded “that as a matter of law, the policy in question of terminating persons who marry other persons working in the same department violates H.R.S. § 378-2 unless the termination falls within one of the exceptions in H.R.S. § 378-3.” Id. at 354, 816 P.2d 302. Pursuant to the Ross decisions, it appears that SH-2 constitutes direct evidence of per se discrimination unless one of the exceptions under H.R.S. § 378-3 applies.11 Like Stouffer Hotels’ no-rela*1028tives policy, SH-2 applies to both married couples and direct relatives. (See Pl.’s Dep. Ex. 2.) While Leidos notes that SH-2 also applies to employees involved in a “dating relationship” and to those related by marriage, the difference is immaterial and disregards that “spouses” are specifically included on the list of “closely related individuals” subject to scrutiny under the SH-2 policy. Furthermore, the policy in the Ross cases prohibited a married couple from working in the same department. Similarly, SH-2 essentially bars married couples from working in the same program or project based on the policy’s broad definition of “indirect supervision.” Under the indirect supervision provision, one spouse is prohibited from working on a program or project where the other spouse has “program management, profit and loss (P & L), or budgetary responsibility.” (Id.) Moreover, SH-2 may be more restrictive in certain respects than the policy in the Ross cases. Stouffer Hotels’ no-relatives policy applied only if the two employees married after they started working at the resort. With respect to SH-2, a married couple is subject to the policy even if — as is the case with the Wigents — they were married prior to their employment with Leidos. Leidos’ principal argument is that SH-2 “does not single out married people,” but rather “focuses on the nature of Plaintiffs relationship as a closely related individual, and not simply on her marital status.” (Def.’s Mot. at 21-22) (emphasis in original.) This very argument was made by the dissent in Ross II and explicitly rejected by the majority. Ross, 76 Hawai’i at 458-59, 879 P.2d 1037. Specifically, the majority held that the dissent remains wedded to the notion that the definition of marital status contained in H.R.S. § 378-1 (1985) — ‘the state of being married or being single’— unambiguously permits employers to discriminate against married persons so long as the discrimination is based on the ‘identity and occupation of a person’s spouse’ ... and not solely on the fact that he or she is married, regardless of to whom. That extremely restrictive reading of the statute ignores the simple fact of life that when a person marries, it is always to a particular person with a particular ‘identity.’ One does not ‘marry’ in some generic sense, but marries a specific person. Thus, the ‘identity’ of one’s spouse (and all of his or her attributes, including his or her occupation) is implicitly subsumed within the definition of ‘being married.’ The two cannot be separated. It makes no sense, therefore, to conclude, as the dissent does, that an employer who discriminates based on the ‘identity and occupation’ of a person’s spouse is not also discriminating against that person because he or she is married. An employer can’t do one without the other. Stated otherwise, a no-spouse policy, by definition, applies only to the class of married persons. Consequently, when an employer discharges an employee pursuant to such a policy, it necessarily discriminates ‘because of ... [the employee’s] marital status[.]’ H.R.S. § 378-2. *1029Granted, the ‘identity and occupation’ of Ross’s spouse was also a contributing cause of his discharge. That, however, does not diminish the fact that, but for Ross’s marital status, he would not have been fired. Id. (emphasis in original). The Hawaii Supreme Court’s broad interpretation of “marital status” in H.R.S. § 378-2 makes clear that the provision protects not only an employee’s status as married, but also the “identity and occupation ” of that employee’s spouse. Id. (emphasis added). Although the Ross decisions do not define the term in detail, it appears that SH-2’s “direct supervision” and “indirect supervision” categories are similar to Ross’s “occupation.” See Ross, 72 Haw. at 354, 816 P.2d 302 (“The problem raised by the conflict between company policies prohibiting married persons from working for the same company, or in the same department, or in a supervisory supervisee relationship (emphasis added). This Court’s reading of Ross’s “occupation” is “consistent with the overall purpose and design of Part I of H.R.S. Chapter 378, which ... defines prohibited discriminatory conduct in very broad terms and places the burden on the employer to justify its practices.” Ross, 76 Hawai’i at 459, 879 P.2d 1037; see also Kraft, Inc. v. State, 284 N.W.2d 386, 388 (Min.1979) (relied upon by the Ross I court and holding that marital status “embrace[s] the identity or situation of one’s spouse”) (emphasis added). The Hawaii Supreme Court in Ross II noted that “regardless of whether we believe that our construction of the statute amounts to good or bad public policy, we are constrained to reaffirm the holding of Ross I.” Ross, 76 Hawai’i at 459, 879 P.2d 1037. Likewise, this Court is constrained to follow the decision of the Hawaii Supreme Court in Ross II. Accordingly, it appears that SH-2 as applied to Plaintiff “violates the plain language and purpose of H.R.S. § 378-2, unless the termination [or other adverse action] falls within one of the exceptions in H.R.S. § 378-3.” Id. at 459, 879 P.2d 1037. Because there is a genuine issue of material fact as to whether one of the exceptions in § 378-3 applies, the Court DENIES Defendant’s Motion for Summary Judgment with respect to Plaintiffs marital status discrimination claim. B. Circumstantial Evidence: Whether SH-2 Was Applied in a Discriminatory Manner The Court further concludes that Leí-dos’ application of SH-2 to the Wigents in 2011 and Leídos’ finding a violation of the policy raises a genuine issue of material fact whether they constitute circumstantial evidence that SH-2 was applied in a discriminatory manner. Specifically, the record indicates that Leídos conducted three prior assessments in 2005, 2008, and 2009, concerning whether Plaintiff and her husband’s working relationship violated SH-2 and that the Wigents were never found to have violated the policy. (See PL’s CSF Ex. M; Pl.’s Dep. Ex. 5.) Further, the record shows that in 2005 the Wigents and Leídos agreed upon an organizational structure in which Plaintiff and her husband were placed in different divisions with separate supervisory chains of command. (Id.) Plaintiff submits evidence that the work structure agreed upon by the parties did not substantially change from 2005 to 2011, when Leídos found that the Wigents’ working relationship violated SH-2. (Decl. of Pl. ¶¶ 16-37.) Plaintiffs evidence is corroborated by the 2008 and 2009 assessment reports which provide that on all non-PRITEC projects, Plaintiff had no “programmatic link” to the work her husband was doing, and, on the PRI-*1030TEC project, her role was, “by its very nature, independent of the program execution work being directed by Mark.” (PL’s CSF Ex. M; Def.’s CSF Ex. 5.) Importantly, the 2011 assessment report stated that in previous SH-2 assessments Plaintiff was not working “exclusively” on programs managed by her husband; and, moreover, the company admits that from 2008 to 2011 she was billing a minimum of ninety percent and up to one-hundred percent of her time on projects in which Mark was the PM. (Pl.’s EX. H. at No. 7.) Furthermore, the 2011 assessment report stated that the investigation into the Wigents’ working relationship was triggered when Mark placed Plaintiff on a budget proposal for the EQDR project. However, Leídos does not explain why the company did not simply restructure the Wigents’ working relationship to avoid a SH-2 violation, as the company had previously done in 2005. Even assuming (but not finding) Leídos could not have restructured the Wigents’ working relationship, the Court notes that the amount of work allocated to the systems engineer on EQDR represented only five percent of the total budget for the project. Consequently, the Court concludes that Leídos’ application of SH-2 to the Wigents in 2011 and Leídos’ finding a violation of the policy raises a genuine issue of material fact whether they constitute circumstantial evidence that the policy was applied in a discriminatory manner. In other words, like the Ross cases, it appears “but for” Plaintiff being married to Mark, she would not have been removed from PRITEC. See Ross, 76 Hawai’i at 458-59, 879 P.2d 1037. Accordingly, the Court DENIES Defendant’s Motion for Summary Judgment with respect to Plaintiffs marital status discrimination claim. C. Whether Plaintiff Establishes Marital Status Discrimination Through the McDonnell Douglas Burden-Shifting Framework 1. Statutory Framework Both Plaintiff and Leídos utilize the McDonnell Douglas framework in analyzing Plaintiffs marital status discrimination claim. For the first step in the McDonnell Douglas burden-shifting framework, Plaintiff must establish a prima facie case of employment discrimination that “gives rise to an inference of unlawful discrimination.” Hawn, 615 F.3d at 1156. Plaintiff may establish a prima facie case based on circumstantial evidence by showing that (1) she belongs to a protected class, (2) she was qualified for her position, (3) she experienced an adverse employment action, and (4) similarly situated individuals outside her protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. Id. (citing Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir.2004)). The Ninth Circuit has held that “the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer’s motion for summary judgment.” Chuang v. Univ. of California Davis Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir.2000). “This is because the ultimate question is one that can only be resolved through a searching inquiry — one that is most appropriately conducted by a factfinder, upon a full record.” Id. (citing Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir.1996)) (internal quotation marks omitted). If Plaintiff establishes a prima facie case, “the burden of production, but not persuasion, then shifts to the employer to *1031articulate some legitimate, nondiscriminatory reason for the challenged action.” Hawn, 615 F.3d at 1155. If Defendant meets this burden, then Plaintiff must raise “a triable issue of material fact” as to whether Defendant’s proffered reasons for the adverse employment actions are “mere pretext for unlawful discrimination.” Id. “[A] plaintiffs burden is much less at the prima facie stage than at the pretext stage.” Id. at 1158. “A plaintiff can show pretext directly, by showing that discrimination more likely motivated the employer, or indirectly, by showing that the employer’s explanation is unworthy of credence.” Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir.2003). A plaintiff may show pretext through presenting direct evidence, or by presenting circumstantial evidence. See Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir.2011). “To show pretext using circumstantial evidence, a plaintiff must put forward specific and substantial evidence challenging the credibility of the employer’s motives.” Vasquez, 349 F.3d at 642. 2. Application a. Prima Facie Case Leídos agrees that the first two elements of Plaintiffs prima facie case are present here. (Mot. at 24.) Specifically, Leídos admits that (1) Plaintiff is a member of a protected class because she is married, and (2) she was qualified for her position. Regarding the third element, Leí-dos asserts that the only adverse employment action Plaintiff suffered was her official termination on December 2, 2011. (Mot. at 34.) As discussed below, the Ninth Circuit “define[s] adverse employment broadly” and holds that “an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1240 & 1243 (9th Cir.2000). Accordingly, the Ninth Circuit has found “that a wide array of disadvantageous changes in the workplace constitute adverse employment actions.” Id. at 1240. The Court finds that Plaintiff was subject to several adverse actions in addition to her official separation from employment with Leídos on December 2, 2011. First, Plaintiffs removal from PRI-TEC was an adverse action because a reasonable employee would be deterred from engaging in protected conduct if the employee knew that it would result in their removal from a project in which they had been working on for several years. Second, Nirenberg’s statement to Plaintiff that HR would begin the termination process is an adverse action because a reasonable employee would be dissuaded from engaging in protected conduct if the employee knew that their company would initiate the process of terminating their employment. Finally, Leídos’ issuance of the Notice of Lay-off on November 4, 2011, was an adverse action because courts have consistently held that termination of employment constitutes an adverse employment action. See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.2000). Accordingly, the only remaining issue regarding Plaintiffs prima facie case is whether similarly situated individuals outside her protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. Hawn, 615 F.3d at 1156. The Ninth Circuit has held that individuals “are similarly situated to *1032the plaintiff when they ‘have similar jobs and display similar conduct.’ ” Earl, 658 F.3d at 1114 (quoting Vasquez, 349 F.3d at 641). Although Plaintiff need not show that other employees were identical to her, she must show that they were “similar in material respects.” Id. Materiality depends on the facts and circumstances of the case. Hawn, 615 F.3d at 1157. In other words, “[mjateriality depends on the context and is a question of fact that cannot be mechanically resolved.” Earl, 658 F.3d at 1114; see also Beck v. UFCW, Local 99, 506 F.3d 874, 885 n. 5 (9th Cir.2007) (holding that “whether two employees are similarly situated is ordinarily a question of fact”). The Ninth Circuit has noted that “it is important not to lose sight of the common-sense aspect of the similarly situated inquiry ... It is not an unyielding, inflexible requirement that requires near one-to-one mapping between employees.” Earl, 658 F.3d at 1115. (internal quotations omitted). Here, Plaintiff points to four sets of related, non-married employees who were subject to SH-2 assessments around the same time as the Wigents’ 2011 assessment. (Opp. at 19-22.) Plaintiff asserts that these non-married relatives had what could be considered an “indirect supervisory” or “direct supervisory” relationship but were not penalized by Leidos under SH-2. (Id. at 19.) As it did with the Wigents, Leidos prepared assessment reports discussing whether these non-married relatives’ working relationships violated SH-2. (See PL’s CSF Ex. L.) First, on July 9, 2011, Leidos assessed whether the working relationship between Scott Smith and his son, James Smith, violated SH-2. (Id. at 1-2.) Leidos stated in the Background section that Scott is a Program Manager in Division 212, and James is an Engineering Intern in Division 346. (Id. at 1.) In the same section, Leidos stated that “James does not presently perform work on programs managed by Scott.” (Id.) Proceeding to the Indirect Supervision Discussion section, Leidos noted that “[although Scott has program management, profit and loss, or budgetary responsibilities within his programs, James does not report to Scott nor does he perform work on the programs that Scott manages.” (Id. at 2.) Leidos further noted that “if James’ specific skill set is required on a task under any program that Scott manages, those tasks will be managed by [another Program Manager].” (PL’s CSF Ex. L at 2.) Accordingly, Leidos concluded that there were no direct or indirect supervision issues regarding the SH-2 policy that were applicable to the Smiths’ working relationship. (Id.) Next, on July 19, 2011, Leidos conducted an assessment of whether the working relationship between Amy Smith and her son, Sean Smith, violated SH-2. (Id. at 3-4.) In the Direct Supervision Discussion, Leidos stated that “Amy Smith is a branch (line) manager in the Ocean Sciences Research and Development Division (335 rate pool),” and “Sean, while working within Amy’s overall chain, is not” supervised by his mother. (Id. at 3.) The Indirect Supervision Discussion stated that Amy “has program management, profit and loss, and budgetary responsibilities for her projects,” but has no influence over the profit and loss or budgetary responsibilities of her son’s prospective project. (Id. at 3.)12 *1033As such, Leídos concluded that there were no direct or indirect supervision issues that were applicable to the Smiths’ working relationship. (Pl.’s CSF Ex. L at 4.) Third, Leídos’ report of June 28, 2011, assessed whether the working relationship between Susan Harris and her son, Zachary Harris, violated SH-2. (Id. at 5-6.) In the Direct Supervision Discussion, Leídos stated that “Susan Harris is a line manager (program manager) but will not be the line manager on Zachary Harris’s project and will not be his supervisor.” (Id. at 5.) In the Indirect Supervision Discussion, Leídos further stated that “Susan Harris has program management, profit and loss, and budgetary responsibility for her projects” but “has no supervisory responsibility over the profit and loss or budgetary performance of’ Zachary’s prospective project. (Id. at 5-6.) Importantly, however, the assessment report noted that Zachary was assigned to the “Cedar” project which fell under the “Timber” contract. (Id. at 6.) Susan was the PM for the Timber contract. (Pl.’s CSF Ex. L at 6.) As PM on the Timber contract, Susan was “to act as the liaison to the government COR for issues pertaining to the contract and programmatic planning activity” and did not have “cost, schedule and technical performance” oversight. (Id.) Because the individual PMs were responsible for these tasks, the report concluded that there were no direct or indirect supervision issues regarding SH-2 that were applicable to the Harris’ working relationship. (Id.) Finally, on August 26, 2011, Leídos conducted an assessment of whether the working relationship between Daniel Kil-foyle and his nephew, Alex Kilfoyle, violated SH-2. (Id. at 7-8.) The Direct Supervision Discussion of the assessment report provides in relevant part: Neither Dan nor Alex is a line manager. Although they report through the same cost center division, they do so through separate organizational structures and reporting lines.... In Dan’s capacity as senior technical staff, he provides technical leadership on programs across the EW division. As such, in past tasks under the Retriever Program in 2010, Dan provided technical leadership and direction to engineers assigned to the program, including Alex. (Id.) Leídos further noted in the Indirect Supervision Discussion that neither Daniel nor Alex had “program management,] profit and loss, or budgetary responsibility within EW division, Cost Center 1758, or anywhere else in SAIC.” (Pl.’s CSF Ex. L at 8.) Like in previous reports, Leídos concluded that there were no direct or indirect supervision issues regarding SH-2 that were applicable to the Kilfoyles’ working relationship. (Id.) Leídos argues that “none of the employees with whom Plaintiff seeks to compare herself were ‘similarly situated.’ ” (Reply at 5.) (emphasis in original.) Specifically, Leídos contends that “[ujnlike the Wig-ents, none of the four employees with whom Plaintiff compares herself were assigned to the very project where their employee-relative was the Project Manager.” (Mat 6.) The Court agrees with Leidos that James Smith and his mother are not “similarly situated” to Plaintiff and her husband. However, the Court finds that, viewing the evidence in the light most favorable to her, Plaintiff meets her minimal prima facie burden by demonstrating *1034that a genuine issue of material fact exists as to whether three other sets of similarly situated individuals outside her protected class were treated more favorably than her and her husband. See Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659 (9th Cir.2002) (“The requisite degree of proof necessary to establish a prima facie case for Title VII on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.”); Sischo-Nownejad v. Merced Cmty. College Dist., 934 F.2d 1104, 1110-11 (9th Cir.1991) (“[T]he amount [of evidence] that must be produced in order to create a prima facie case is very little”) (quotation marks omitted). In particular, Plaintiff points out that Leídos concluded that there were no direct or indirect supervision issues regarding Amy and Sean Smith’s working relationship, even though Sean was “working within Amy’s overall chain.” (Pl.’s CSF Ex. L at 3.) Leídos in its Reply asserts that Amy was not the PM on the project to which Sean was assigned. (Reply at 6.) The assessment report describes Amy as a “branch (line) manager.” (Id. at 3.) However, in the Direct Supervision Discussion of the Harris’ assessment report, Leídos appears to describe a “line manager” as a “program manager.” (See id. at 5.) It is thus unclear to the Court the extent to which a “branch (line) manager” differs from a “Project Manager.” Viewing the facts in the light most favorable to Plaintiff, the Court finds that Sean was working under Amy’s organizational structure; and Amy had substantial managerial responsibilities within that structure. As discussed above, Leídos also found that Susan and Zachary Harris’ working relationship did not violate SH-2 even though Zachary was working on the Cedar project which “fell under” the Timber contract, where Susan was PM. (Id. at 6.) Leídos contends that Susan and Zachary Harris are not similarly situated to the Wigents because Susan’s role as PM was limited to that of a government liaison and thus did not have cost, schedule, or technical performance oversight of the program her son was assigned to. (Reply at 7.) However, drawing the facts in the light most favorable to Plaintiff, the structural separation between Susan and Zachary does not appear materially different from the separation between Plaintiff and her husband. Plaintiff submits evidence that her role on PRITEC was limited to that of a consultant, and she was in a separate reporting and supervisory chain from her husband. The degree of separation between the Wigents and the Kilfoyles is also similar in this respect. Like the Wigents, Daniel and Alex Kilfoyle were in “separate organizational structures and reporting lines.” (Pl.’s CSF Ex. L at 7.) Furthermore, the Wigents were in completely different divisions arguably creating an even greater degree of organizational separation than the Kilfoyles’ working relationship. Again, taking the evidence as a whole, the Court finds that Plaintiff meets her minimal prima facie burden by demonstrating that a triable issue of material fact exists as to whether Amy and Sean Smith, Susan and Zachary Harris, and Daniel and Alex Kilfoyle were similarly situated individuals outside Plaintiffs protected class and were treated more favorably than her and her husband. In so finding, the Court rejects Leídos attempts to impose a strict construction of the “similarly situated” requirement and force Plaintiff to produce evidence of non-relatives employees who were in an identical employment situation to the Wigents. See Earl, 658 F.3d at 1114 (holding that the similarly situated inquiry does not require a “one-to-one mapping between employees”). The Ninth *1035Circuit only requires that similarly situated individuals be “similar in all material respects.” Id. at 1114 (emphasis added). “Material” means “[h]aving some logical connection with the consequential facts.” Black’s Law Dictionary, 8th Ed. p. 998 (2004). Plaintiff met her minimal prima facie burden by submitting evidence of non-married Leídos employees with some managerial or leadership responsibilities over a program or project that their relatives work on. Even assuming (but not finding) that none of the four employees with whom Plaintiff compares herself were similarly situated, the Ninth Circuit holds that the fourth element of Plaintiffs prima facie case can be met by showing that “similarly situated individuals outside her protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Hawn, 615 F.3d at 1156 (emphasis added). As indicated hereinbefore, the Court concludes that Leídos’ application of SH-2 to the Wigents in 2011 and Leídos’ finding a violation of the policy raises a genuine issue of material fact whether they constitute circumstantial evidence that SH-2 was applied in a discriminatory manner. Accordingly, the Court finds that Plaintiff establishes the fourth and final element of her prima facie case under either of Hawn’s alternative requirements. b. Defendant’s Legitimate, Nondiscriminatory Reasons Since Plaintiff has established a prima facie case of marital status discrimination, the burden now shifts to Leídos to show that its adverse employment actions were taken for legitimate, nondiscriminatory reasons. Id. at 1155. Leídos submits that Plaintiff was removed from PRITEC on April 5, 2011, because the Wigents’ working relationship violated SH-2; and Mark declined to step down as PM on the project. Further, Leídos submits that Plaintiffs employment was terminated because she turned down a part-time offer and did not contact HR for help with redeployment; and the company could not find her any other available position. Accordingly, the burden now shifts back to Plaintiff to raise “a triable issue of material fact” as to whether Leídos’ proffered reasons for its employment actions are “mere pretext for unlawful discrimination.” Hawn, 615 F.3d at 1155. c. Evidence of Pretext Plaintiff must establish that Leí-dos’ reasons for its employment actions are pretextual by either directly persuading the Court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. Vasquez, 349 F.3d at 641. Plaintiff attempts to show pretext by arguing that Leídos (1) deviated from company protocols; (2) gave false explanations for its employment actions; and (3) “applied policy SH-2 in a discriminatory manner in 2011 after finding no conflict of interest in 2004-2005, 2008, and 2009 under the same work structure it had established for Plaintiff and Mark Wigent.” (Opp. at 5,12, and 15.) First, Plaintiff attempts to show pretext by asserting that Leídos failed to follow its protocols in (1) placing employees on the redeployment list upon removal from a program and (2) continuing to employ engineers despite lacking “coverage” for them. (Id. at 16.) The Ninth Circuit has found that deviations from an employer’s protocols may support an inference of pretext. See Porter v. California Dep’t of *1036Corrections, 419 F.3d 885, 896 (9th Cir.2004). Here, Plaintiff submits in her declaration that during the March 28, 2011 teleconference meeting Nirenberg (Plaintiffs supervisor) and Jim Murray (VP of HR) told her that she would be removed from PRITEC and “immediately” placed on the redeployment list, but was not actually placed on the list until after she received her November 4, 2011 termination notice. (Decl. of PI. ¶ 39, 43, 56.) At the April 21, 2014 hearing, Leídos conceded that the company should have placed Plaintiff on the redeployment list following her removal from PRITEC: THE COURT: You do agree when an employee goes under no coverage they are meant to be put on the redeployment list. MS. ING [Counsel for Leídos]: Yes, but the other side to that is that the employee needs to contact HR. (Rough Transcript at 46.) Although Leí-dos argues that Plaintiff needed to contact HR in order to get placed on the redeployment list, the record indicates that HR was aware that Plaintiff was “without coverage.” (See Def.’s CSF Ex. 9.) Specifically, the record shows that Alicia Larosa-Lowe (Senior HR Generalist) was a participant in the March 28, 2011 teleconference meeting in which Leídos decided to remove Plaintiff from PRITEC and attempt to redeploy her. (Id.) Leídos argues that the only evidence Plaintiff submits in support of her claim that the company failed to follow its protocols are “self-serving, conclusory statements.” (Reply at 12.) The Court observes that much of Plaintiffs evidence is derived from her declaration and deposition testimony. The Ninth Circuit has held that “[sjpecific testimony by a single declarant can create a triable issue of fact,” but that a court “need not find a genuine issue of fact if, in its determination, the particular declaration was ‘uncorroborated and self-serving.’” Neovi, 604 F.3d at 1159 (citing Villiarimo, 281 F.3d at 1061). However, as discussed above, the Ninth Circuit in Phan court held that self-serving declarations can create a genuine issue of material fact; and that courts can only disregard a self-serving declaration in certain instances, such as when the declaration is conclusory or is based on facts beyond the declarant’s personal knowledge. Phan, 500 F.3d 895, 909-10. Here, the Court finds Plaintiffs statement in her declaration that other engineers continued to be employed despite losing “coverage” creates a triable issue of material fact as to whether Leídos failed to follow its protocols. (See Decl. of PI. ¶¶ 53, 61.) During her deposition, Plaintiff provided the names of two engineers on Kauai and Maui who remained employed despite losing coverage. (PL’s CSF Ex. B at 206.) Although Plaintiff could not provide the names of other Leídos employees who remained employed despite losing coverage, she described which division these employees worked in and their current employment status. (Id. at 207.) Accordingly, the Court finds that Plaintiffs statement creates a triable issue of material fact because she provides detailed facts in support of her statement; and the statement is based on her personal knowledge. See Phan, 500 F.3d at 909-10. The Court also finds that Plaintiffs statement that Leídos failed to place her on the redeployment list following her removal from PRITEC on April 5, 2011, creates a triable issue of material fact as to whether the company failed to follow its protocols. As indicated above, Leídos admitted at the April 21 hearing that Plaintiff should have been placed on the redeployment list following her removal from PRITEC, but was only placed on the list *1037after the company issued her the layoff notice on November 4, 2011. Plaintiff also attempts to show pretext by asserting that Defendant, through Brian Liss (Senior Counsel for Leídos), made false statements to the Hawaii Civil Rights Commission regarding the company’s reasons for removing Plaintiff from PRITEC and misrepresented her employment status to the HCRC. (Opp. at 13-15.) On November 3, 2011, Liss sent a position statement letter to the HCRC in response to Plaintiffs Charge of Discrimination. (Pl.’s CSF Ex. C.) Three months later, on February 16, 2012, Liss sent another position statement letter to the HCRC in response to Plaintiffs Amended Charge of Discrimination. (Pl.’s CSF Ex. E.) In both these letters, Liss stated that “SAIC concluded that Mr. Wigent exercised direct and indirect supervision over his wife.” (Pl.’s CSF Exs. C & E.) However, the Wigents’ 2011 assessment report concluded “that there is a violation of SH-2 in the area of indirect supervision and potentially in the area of direct supervision.” (Def.’s CSF Ex. 7) (emphasis added); (see also Pl.’s CSF Ex. F) (HR document indicating that Plaintiff was removed from PRITEC because “there was a violation of [SH-2] in the area of indirect supervision”.) Leídos argues that Liss’ statement was not false because he “quoted directly” from the 2011 SH-2 assessment report. (Reply at 11.) However, Liss did not quote directly from the 2011 assessment report; if he had quoted directly from the. report, he would have included the critical word “potentially” when he stated that Leídos exercised direct supervision over his wife. (Def.’s CSF Ex. 7.) Moreover, Liss had an additional opportunity, three months after he filed his original position statement, to modify the letter and notify the HCRC that Leídos only found a potential violation of SH-2 in the area of direct supervision. (See Pl.’s CSF Ex. E.) However, Leídos’ position statement letter (dated February 16, 2012) again provided that Mark “exercised direct and indirect supervision over his wife.” (Id.)13 The Court observes that in Liss’ November 3, 2011 and February 16, 2012 letters to the HCRC — immediately following his assertion that Mark “exercised direct and indirect supervision over his wife” — he quoted the full direct supervision discussion of the 2011 assessment report.14 Specifically, Liss stated that [Regarding direct supervision, SAIC concluded that ‘although Mark’s responsibilities do not include conducting [Plaintiffs] performance or salary reviews, approving her timecards or expense reports, he does manage the overall work of the program, he may be assigning work to Shannon and he may affect [Plaintiffs] employment if there was a funding reduction on the program.’ (Id.) (emphasis added.) Notwithstanding his quoting of the full direct supervision discussion, a genuine is*1038sue of material fact exists as to whether Liss’ failure to notify the HCRC that Leí-dos only found a potential SH-2 violation in the area of direct supervision indicates that the company was “dissembling to cover up a discriminatory purpose.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Indeed, Liss should be expected to have included such critical information because he was writing directly to a government agency responsible for investigating employment discrimination complaints in the state of Hawaii. See H.R.S. § 368-3 (listing powers and functions of HCRC); H.R.S. § 368-ll(a) (granting jurisdiction to HCRC to investigate complaints of unlawful discrimination). On the other hand, Leídos may argue that the word “may” used twice in the direct supervision discussion would alert the reader that it involved a “potential” conclusion; and, further, that the entire report also was forwarded by a separate letter on November 3, 2011, so the full language of the report was available to the HCRC. Plaintiff also asserts that Liss made misleading statements regarding her employment status in the company’s supplemental response letter to Plaintiffs Charge of Discrimination, dated November 3, 2011. (Pl.’s CSF Ex. D.) In the supplemental response letter, Liss stated that Ms. Wigent’s current employment status is under review. This review is not yet concluded, nor has Ms. Wigent received a formal layoff notice at this point. If no other work is identified for Ms. Wig-ent, then SAIC will issue Ms. Wigent a layoff notice. SAIC has not yet laid off Ms. Wig-ent. ... (Id.) The Court finds that a reasonable juror could determine that Liss misrepresented to the HCRC that Leídos, as of November 3, 2011, was still “reviewing” Plaintiffs status and had “not yet laid [her] off,” even though the decision had already been made to terminate her employment with Leídos. Plaintiff provides several emails, all dated November 1, 2011, indicating that the decision to layoff Plaintiff was made prior to November 3rd, and that Liss on November 1st specifically authorized the decision. (See Pl.’s CSF Ex. G.) Although he suggests that Leídos was still attempting to find “other work” for Plaintiff, the November 1 email indicates that Liss knew the company was going to issue her a layoff notice. Leídos argues that Liss did not misrepresent Plaintiffs employment status because the layoff notice had not been issued. (Reply at 11.) Although the Court agrees with Leídos that the effective date of the layoff notice was November 4, 2014, a trier of fact could reasonably interpret Liss’ statement as suggesting that Leídos was still deliberating whether or not to layoff Plaintiff. As stated above, Plaintiff submits evidence that Liss previously authorized the Notice of Lay-off on November 1 and thus was fully aware when he wrote the November 3, 2011 letter to the HCRC that Leídos would issue her a layoff notice. Because Liss sent the letter on November 3, a mere one day before the effective day of the layoff notice, being November 4, Liss’ suggestion that Leídos was still reviewing Plaintiffs status is highly questionable. Leídos further argues that Plaintiffs future employment status was still undetermined because the layoff notice provided her with two options prior to her final termination. (Reply at 11.) Plaintiff was given the option to terminate her employment on December 2, 2011, or take leave without pay until December 30, 2011. (PL’s Dep. Ex. 15.) The latter option al*1039lowed Plaintiff to “identify alternative coverage” within Leídos. (Id.) Nevertheless, viewing all inferences in favor of Plaintiff, a trier of fact could conclude that it was questionable as to whether Plaintiff could have actually acquired another position after Leídos issued her the Notice of LayOff. Consequently, a genuine issue of material fact exists as to whether Liss’ statements in his supplemental response, dated November 3, 2011, were misleading and demonstrate that Leídos was “dissembling to cover up a discriminatory purpose.” Reeves, 530 U.S. at 147, 120 S.Ct. 2097. Finally, Plaintiff argues that Leídos’ reasons for finding in 2011 that the Wig-ents’ working relationship violated SH-2 are “unworthy of credence” because the company found no SH-2 violation in three previous assessments (2005, 2008, and 2009), even though Plaintiff and her husband were under the same work structure. (Opp. at 5-12.) As discussed in Part 1(B) of the Discussion section of this Order supra, the 2011 assessment report stated that, in previous SH-2 assessments, Plaintiff was not working “exclusively” on projects where her husband was PM. Moreover, Leídos admits that “from 2008 to her removal from the PRITEC contract in 2011, Plaintiff charged 90-100% of her time to projects in which Mark Wigent was the Project Manager.” (Pl.’s CSF Ex. H No. 7.) Accordingly, a reasonable juror could find that Leídos’ explanation is pre-textual because Plaintiff was spending at a minimum ninety percent, and potentially up to one hundred percent, of her time on her husband’s PRITEC project when Leí-dos conducted the 2008 and 2009 assessments, and yet the company found no SH-2 violation at that time. In other words, Leídos’ failure to apply SH-2 consistently with past assessments could lead a trier of fact to conclude that its explanation for finding a SH-2 violation in 2011 is pretex-tual. See Chuang, 225 F.3d at 1127 (finding that a plaintiff may prove pretext “by showing that the employer’s proffered explanation is ‘unworthy of credence’ because it is internally inconsistent”). In addition to the explanation presented in the 2011 assessment report, Leídos offers another reason for its finding that the Wigents’ working relationship violated SH-2, though prior assessments found no such violations. According to Leídos, the 2011 SH-2 assessment was “completed by HR, and HR alone” whereas the 2005 assessment was done with the assistance of the Wigents, and the 2008 and 2009 assessments were prepared by Mudrak (Plaintiffs supervisor). (Reply at 9-10.) Although Leídos contends that the 2011 assessment was completed by HR alone, the assessment report indicates that it was authored by Ed Foreman (Mark’s supervisor) and Sergio Nirenberg (Plaintiffs supervisor), as well as Jim Murray (VP of HR). Moreover, as Leídos admitted at the April 21 hearing, each prior assessment report was approved by HR. (Rough Transcript at 8.)15 Viewing all inferences in favor of Plaintiff, a fact-finder could thus conclude that HR was actively involved in reviewing, and had some input, into all prior SH-2 assessments. Leídos further argues that HR made an “unbiased determination” of Plaintiff and her husband’s working relationship and notes that the Wigents admitted during their depositions that “HR had no bias against them.” (Reply at 10 n. 4.) However, Leídos does not argue that Mudrak’s 2008 and 2009 assessments were biased or otherwise not conducted objectively. As such, a reasonable juror could determine that Leídos’ explanation that the results of *1040the 2011 assessment report deviated from three prior assessments because “HR alone” conducted it is unworthy of credence.16 Taking the evidence as a whole, the Court finds that a genuine issue of material fact exists as to whether Leidos’ proffered reasons for finding a violation of the Wigents’ working relationship and removing Plaintiff from PRITEC are pretextual. See Reeves, 530 U.S. at 148, 120 S.Ct. 2097. Accordingly, the Court finds that Plaintiff has created a triable issue of material fact concerning discrimination under the McDonnell Douglas burden-shifting framework and, thei'efore, DENIES Defendant’s Motion for Summary Judgment with respect to Plaintiffs H.R.S. § 378-2(1) marital status discrimination claim. II. Plaintiffs H.R.S. § 378-2(2) Retaliation Claims A. Statutory Framework Plaintiff also brings several retaliation claims under H.R.S. § 378-2(2). (Compl. ¶¶ 37-40, 42-46.) H.R.S. § 378-2 provides in relevant part: (a) It shall be an unlawful discriminatory practice: (2) For any employer ... to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part[.] Adopting the McDonnell Douglas burden-shifting analysis, the Hawaii Supreme Court has held that a “retaliation claim under H.R.S. § 378-2(2) is subject to the following three-part test.” Schefke, 96 Hawai’i at 426, 32 P.3d 52. First, Plaintiff must establish a prima facie case of retaliation by showing that (1) she engaged in a protected activity; (2) her employer subjected her to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action. Id.; see also Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir.2000) (applying the same three elements for establishing a prima facie case of retaliation under Title VII, which is analogous to H.R.S. § 378-2(2)). If Plaintiff “establishes a prima facie case of retaliation, the burden shifts to [Defendant] to provide a legitimate, nondiscriminatory reason for the adverse employment action.” Schefke, 96 Hawai’i at 426, 32 P.3d 52 (citing Ray, 217 F.3d at 1240; Shoppe, 94 Hawai’i at 377, 14 P.3d 1049). If Defendant “articulates such a reason, the burden shifts back to [Plaintiff] to show evidence demonstrat*1041ing that the reason given by [Defendant] is pretextual.” Id. B. Application 1. January and February 2011 Complaints Plaintiffs first retaliation claim arises from alleged instances of protected activity occurring in January and February 2011. Specifically, Plaintiff asserts that she and her husband complained to HR in January 2011 after Foreman suggested that Leídos investigate her work relationship with Mark. (Opp. at 32.) Plaintiff further asserts that, in response to her and her husband’s January 2011 complaints, Foreman told Mark that he likes to “hit hard” and that Plaintiff would “never work again in Hawaii.” (Opp. at 32.) The record appears to indicate that Foreman’s comments led Mark to file an ethics complaint against him. (See Pl.’s CSF Ex. K.) Plaintiff further asserts that she complained to HR about unfair treatment in February 2011. (Opp. at 32.) According to Plaintiff, she and her husband’s January and February 2011 complaints resulted in Mark receiving an “unsatisfactory/not meeting expectations” performance review and no pay raise in connection with that review. (Opp. at 32.)17 Plaintiff also appears to argue that the January and February 2011 complaints led Leídos to remove her from PRITEC. (Pl.’s Dep. Ex. 12 at No. 3.) Leídos asserts that Plaintiffs Complaint does not contain any of the above allegations. (Reply at 13.) Leídos argues that these newly asserted allegations should be barred because they would prejudice Defendant, contradict Plaintiffs deposition testimony, and were not raised administratively. (Id. at 13-18.) Federal Rule of Civil Procedure 8(a)(2) requires that the allegations in a complaint “give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Here, Plaintiffs Complaint does not allege that she or her husband engaged in protected conduct in January or February 2011. (See generally Compl.) Rather, her Complaint alleges that Plaintiff first engaged in protected activity “[o]n or around April 2011” and again in August 2011 when she informed Nirenberg “that she believed the Company’s refusal to assign her to a project, including PRITEC, violated the law prohibiting marital status discrimination.” (Id. ¶¶ 24, 26.) Both federal and Hawaii courts have barred plaintiffs from asserting new claims or theories at the summary judgment stage. See Trishan Air, Inc. v. Federal Ins. Co., 635 F.3d 422, 435 (9th *1042Cir.2011) (finding that district court did not err in dismissing claim premised on specific provision of aviation insurance policy because it was not raised in plaintiffs complaint); Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 965-66 (9th Cir. 2006) (holding that the complaint “gave ... no notice of the specific factual allegations presented for the first time in [plaintiffs] opposition to summary judgment”); Tokuhisa v. Cutter Mgmt. Co., 122 Hawai’i 181, 193, 223 P.3d 246 (Haw.Ct.App.2009) (“Even construing ... Plaintiffs’ respective complaints liberally, we cannot say that the complaints included a UDAP claim besides the one alleging that Cutter marketed and sold insurance in the form of the VTR.”) Allowing Plaintiff to assert retaliation claims arising from alleged instances of protected activity occurring in January or February 2011 would prejudice Leidos because her Complaint did not provide the company notice of such claims. Next, as Leidos points out, Plaintiffs deposition testimony contradicts her allegations that she engaged in protected conduct in January and February 2011. Plaintiff admitted during her deposition that the first time she believed that Leidos was acting unlawfully was in April 2011, when she spoke with Nirenberg to notify him that she was sending a letter through her attorney stating her removal from PRITEC was in violation of Hawaii anti-discrimination law. (PL's Dep. 155:9-156:10.) Although she had discussions with Leidos’ HR department in January and February 2011, Plaintiff did not state during her deposition that she told the company at these meetings that enforcement of SH-2 violated any federal or state antidiscrimination law or was otherwise unlawful. (Nee id at 155:9-157:18.) Finally, the Court concludes that Plaintiff was required to, but failed to, exhaust her administrative remedies. See French v. Hawaii Pizza Hut, Inc., 105 Hawai’i 462, 475-77, 99 P.3d 1046 (Haw. 2004). In French, the Hawaii Supreme Court adopted the standard articulated by the Ninth Circuit in B.K.B. v. Maui Police Department, 276 F.3d 1091, 1100 (9th Cir.2002) for analyzing whether a plaintiff has exhausted her administrative remedies. French, 105 Hawai’i at 476, 99 P.3d 1046. The B.KB. court held in relevant part: We construe the language of EEOC charges with utmost liberality since they are made by those unschooled in the technicalities of formal pleading. The crucial element of a charge of discrimination is the factual statement contained therein. Allegations of discrimination not included in the plaintiffs administrative charge may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge. In determining whether a plaintiff has exhausted allegations that she did not specify in her administrative charge, it is appropriate to consider such factors as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred. Id. (internal quotations and citations omitted). Here, Plaintiffs Charge of Discrimination does not include any allegations that she complained to Leidos in January or February 2011, or that those complaints led Foreman to threaten that Plaintiff would never work again in Hawaii and give Mark a negative performance review. (Nee PL’s CSF Ex. O.) Rather, the factual statements in her Charge provide that the first time she informed Leidos of her belief that the company was engaging in discriminatory conduct was in April 2011. (Id.) Furthermore, the Charge does not men*1043tion Foreman as a “perpetrator of discrimination.” (Id.) For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary Judgment with respect to Plaintiffs retaliation claim arising from alleged instances of protected activity occurring in January and February 2011. 2. April 2011 Complaint and Letter During the first week of April 2011, Plaintiff told her division manager, Sergio Nirenberg, that Leidos was discriminating against her based on her marital status. (Opp. at 25.) On April 20, 2011, Plaintiff sent a letter through her attorney expressing her belief that Leidos was engaging in unlawful marital status discrimination in violation of H.R.S. Chapter 378. (PL’s Dep. Ex. 10.) Plaintiff asserts that, in response to her April 2011 complaint to Nirenberg and April 20 letter, Leidos took steps to ensure Plaintiff would not be redeployed, including not placing her on the redeployment list.18 Leidos argues that Plaintiff cannot establish the second element of her prima facie case because the company’s alleged “failure to find new work for her within Leidos meant that she remained on [] Leidos’ payroll under ‘overhead.’ ” (Mot. at 39.) According to Leidos, “being placed on ‘overhead’ is not an adverse employment action cognizable under the law.” (Id.) As discussed above, the Ninth Circuit “define[s] adverse employment action broadly.” Ray, 217 F.3d at 1240. In Ray, the court held that “an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity.” Id. Accordingly, the Ninth Circuit has found “that a wide array of disadvantageous changes in the workplace constitute adverse employment actions.” Id. at 1240. “Among those employment decisions that can constitute an adverse employment action are termination, dissemination of a negative employment reference, issuance of an undeserved performance review and refusal to consider for promotion.” Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.2000). The parties agree that from April 5, 2011, to December 2, 2011, Plaintiff was placed on “overhead” and received the same salary and benefits as she had prior to removal from PRITEC. (Def’s CSF at 8, ¶ 34; Pl.’s CSF at 2, ¶ 34.) However, the Ninth Circuit has found that even “a transfer to another job of the same pay and status may constitute an adverse employment action.” Ray, 217 F.3d at 1241 (citing St. John v. Employment Development Dept., 642 F.2d 273, 274 (9th Cir.1981)); see also Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987) (holding that “[transfers of job duties and undeserved performance ratings, if proven, would constitute ‘adverse employment decisions’ ”). Even if an employee were to receive the same salary and benefits for an extended period of time, a reasonable employee would still be deterred from engaging in protected activity if the employee knew that it would cause their employer to take steps to ensure that the employee would not be redeployed. Leidos also cites several decisions from the Ninth Circuit and other circuit courts of appeal in support of its argument that, *1044as a matter of law, placing Plaintiff on “overhead” was not an adverse action. In Fonseca v. Sysco Food, the Ninth Circuit “recognized that an adverse employment action exists where an employer’s action negatively affects its employee’s compensation.” 374 F.3d 840, 847 (9th Cir.2004) (emphasis added). However, Fonseca did not address whether an adverse action exists where — as is the case here — an employer’s action does not affect an employee’s compensation (e.g., employee’s salary remains the same). Leidos also cites the Ninth Circuit’s unpublished decision in Jermy v. Jones, 243 F.3d 548, at *1 (9th Cir.2000); which referred to a quote in Brooks v. City of San Mateo, 214 F.3d 1082, 1093 (9th Cir.2000), which stated “transferring an employee where salary is unaffected do[es] not constitute [an] adverse employment action[ ].” Id. (citing Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir.1996)). Neither Jermy nor Brooks involved a transfer where the employee’s salary remained unaffected. Rather, the quoted language is based on the Ninth Circuit’s Nidds decision. In Nidds, an elevator mechanic asserted that his removal from a service route and transfer to the restoration department was an adverse action, even though his compensation remained the same. Nidds, 113 F.3d at 915. While the Nidds court found that the mechanic’s transfer was not an adverse employment action; the Ninth Circuit noted in a later case that Nidds conducted no analysis to reach this point, merely asserting that “Although we decline to view Nidds’ transfer to the restoration department as an adverse employment action, his ultimate termination on July 28, 1992 certainly was.” ... Nidds [does not] establish that a lateral transfer can never be an adverse employment action. Had [it] done so, [it] would have had to abrogate this court’s earlier decisions in Yartzoff and St. John ... neither of which were cited in the ... Nidds decision! ]. Ray, 217 F.3d at 1241 n. 4 (internal citation omitted). Further, the Court notes that the first Brooks decision was withdrawn and superseded by Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir.2000). The second Brooks decision no longer referred to Nidds and its ruling that the employee’s transfer was not an adverse action because his compensation remained the same. As such, Leidos’ reliance on Jermy is misplaced. Finally, the Second and Eighth Circuit decisions cited by Leidos are distinguishable from the instant case because these cases only addressed whether an employer’s decision to place an employee on administrative leave pending an investigation is an adverse action. Joseph v. Leavitt, 465 F.3d 87, 91 (2nd Cir.2006); Singletary v. Missouri Dep’t of Corrections, 423 F.3d 886, 892 (8th Cir.2005). In this case, Plaintiff was never placed on “administrative leave,” but rather removed from her position on PRITEC. Moreover, there was no pending investigation into whether Plaintiff and her husband’s working relationship violated SH-2; at the time Leidos removed her from PRITEC, the assessment of the Wigents’ working relationship was complete. Accordingly, the Court finds that failing to redeploy Plaintiff was an adverse action.19 *1045The Court also finds that a causal link exists between the April 2011 complaint and April 20, 2011 letter and Leidos’ alleged decision to take steps to ensure Plaintiff would not be redeployed, including its failure to place her on the redeployment list. The Ninth Circuit has held that “causation may be established based on the timing of the relevant actions.” Passantino v. Johnson & Johnson Prods., Inc., 212 F.3d 493, 507 (9th Cir.2000). “Specifically, when adverse employment decisions are taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred.” Id. (citing Yart-zoff, 809 F.2d at 1375-76 (finding causation based on timing of retaliation)); Miller v. Fairchild Industries, Inc., 885 F.2d 498, 505 (9th Cir.1989) (holding that discharges forty-two and fifty-two days after plaintiffs engaged in protected activity were sufficient to establish prima facie case of causation). However, where the timing between the protected activity and the adverse employment action occurs after a sufficiently long period of time, courts have found there to be no causal link. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (holding that a court may not infer causation from temporal proximity unless the time between an employer’s knowledge of protected activity and an adverse employment action is “very close” in time and citing cases for the proposition that a three-month and four-month lapse is insufficient to infer causation). Here, the temporal proximity between Plaintiffs April 2011 complaint to Nirenberg and April 20, 2011 letter and Leidos’ failure to redeploy her is sufficient to infer causation. Specifically, Plaintiff asserts that shortly after she sent the April 2011 complaint, Nirenberg “asked [her] to look for a position outside of Hawaii.” (Decl. of PI. ¶44.) Further, and importantly, Lei-dos admits that Plaintiff should have been placed on the redeployment list following her April 2011 complaints of discrimination, but was only placed on the list from November 11, 2011, to November 29, 2011, and thus after the company issued her the Notice of Layoff. Moreover, the fact that Nirenberg and HR were aware of Plaintiffs allegations of discrimination bolsters a finding of causation. See Thomas v. City of Beaverton, 379 F.3d 802, 812 n. 4 (9th Cir.2004) (“The employer’s awareness of protected activity is also important in establishing a causal link.”) Leidos nevertheless argues that Plaintiff fails to establish her protected conduct was a “but-for” cause of the alleged adverse action, pursuant to the U.S. Supreme Court’s recent opinion in University of Texas Southwestern Medical Center v. Nassar, — U.S. -, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013). In Nassar, a physician of Middle Eastern descent alleged that a state university with which his hospital was affiliated revoked a job offer because he complained that he was racially and religiously harassed by a superior. Id. at 2524. The Supreme Court held his Title VII retaliation claim must be established under the traditional principles of “but-for” causation by showing that the unlawful retaliation would not have occurred in the absence of the alleged wrongful actions of his employer. Id. at *10462533. The Court found that there was no but-for causation because the affiliation agreement between the hospital and the state university precluded defendant from even making the physician a job offer. Id. at 2532. In this case, however, Plaintiff submits in her declaration that Leídos would have attempted to find her a new program or project if she did not make the April 2011 complaints of discrimination. In particular, Plaintiff states in her declaration that other engineering jobs were available on Kauai,20 and that she would have been reassigned to them had she not complained of marital status discrimination. Furthermore, Leídos admits that Plaintiff should have been placed on the redeployment list in April 2011 following her removal from PRITEC, but was not placed on the list until after she received the Notice of Lay-Off on November 4, 2011. Accordingly, the Court finds that there is a genuine issue of material fact as to whether the “but-for” element has been satisfied. Since Plaintiff has established a prima facie retaliation case, the burden shifts to Leídos “to provide a legitimate, nondiscriminatory reason for the adverse employment action.” Schefke, 96 Hawai'i at 426, 32 P.3d 52. Here, Leídos submits that the company attempted to identify work for Plaintiff by, inter alia, contacting other program managers, but ultimately could not find her any work. Further, Leídos notes that Plaintiff admitted during her deposition that she did not approach HR to help her with redeployment and did not apply to any positions through the company’s website. Consequently, “the burden shifts back to [Plaintiff] to show evidence demonstrating that the reason given by [Defendant] is pretextual.” Schefke, 96 Hawai’i at 426, 32 P.3d 52. When considering the evidence in the light most favorable to Plaintiff, there are genuine issues of material fact as to whether Leídos’ reasons for not actively finding Plaintiff work are “unworthy of credence.” See Vasquez, 349 F.3d at 641. As discussed hereinbefore, Plaintiff offers sufficient evidence to raise a genuine issue of material fact about whether Leí-dos’ reasons for not actively redeploying her were pretextual. Specifically, Plaintiff submits in her declaration that shortly after she sent the April 2011 complaint, Nirenberg told her “to look for a position outside of Hawaii.” Next, Plaintiff puts forth evidence of the close temporal proximity between the April 2011 complaints and Leídos’ adverse employment actions. See Bell v. Clackamas Cnty., 341 F.3d 858, 865 (9th Cir.2003) (“Temporal proximity between protected activity and an adverse employment action can by itself constitute sufficient circumstantial evidence of retaliation in some cases.”). Finally, and importantly, Leídos admits that Plaintiff should have been placed on the redeployment list following her April 2011 removal from PRITEC, but was only placed on the list after the company issued the Notice of Lay-Off on November 4, 2011. Accordingly, the Court DENIES Defendant’s Motion for Summary Judgment with respect to Plaintiffs retaliation claim *1047that, in response to her April 2011 complaints of discrimination, Leídos took steps to ensure Plaintiff would not be redeployed. 3. August 3, 2011 Email On August 3, 2011, Plaintiff sent an email to Nirenberg expressing her belief that the reason stated by Leídos for not allowing her to remain in her position was unlawful. (Def.’s CSF Ex. 14.) Plaintiff asserts that, in response, Nirenberg informed Plaintiff on August 4, 2011, that HR would begin the termination process. (Decl. of PI. ¶ 48.) Plaintiff further asserts that Leídos ignored Mark’s August 2011 offer to step down as PM. Preliminarily, as previously discussed, the Court finds that Plaintiffs allegation that Leídos ignored Mark’s August 2011 offer to step down as PM should not be considered because it was neither plead in the complaint nor raised administratively. Plaintiffs Complaint alleges that, as a result of her HCRC Charge, “the Company threatened both Plaintiff and her husband’s job.” (Compl. ¶ 25-26.) Plaintiffs Complaint further alleges that her “termination occurred shortly after she engaged in protected activity by filing a Charge of Discrimination with the Hawaii Civil Rights Commission” on September 24, 2011. (Id. ¶ 40.) Consequently, the Complaint did not provide Leídos any notice that Plaintiff was alleging that the company ignored or rejected Mark’s offer to step down as PM in retaliation for her HCRC Charge. See Trishan Air, 635 F.3d at 435; Pickern, 457 F.3d at 965-66. Even construing Plaintiffs HCRC Charge with the “utmost liberality,” the Court also finds that Plaintiff failed to exhaust her administrative remedies. See B.K.B., 276 F.3d at 1100. While she marked the box for “retaliation,” Plaintiffs HCRC Charge did not contain any factual allegations that Leídos ignored or rejected Mark’s offer to step down in August 2011. Further, and importantly, the record indicates that Mark declined two offers, in March 2011 and June 2011, by Leídos to step down as PM in order to avoid a SH-2 violation. (Defi’s CSF Ex. 9 & 13.) However, when questioned about these events during her deposition, Plaintiff did not once mention that Mark offered to step down as PM in August 2011. Accordingly, the Court finds that Plaintiff may not raise an allegation that Leídos disregarded her husband’s August 2011 offer to step down as PM. Regarding the second element of her prima facie case, Leídos argues that the only adverse employment action suffered by Plaintiff was her official separation from Leídos on December 2, 2011. (Mot. at 34.) As discussed above, the Ninth Circuit “define[s] adverse employment action broadly” and holds that “an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity.” Ray, 217 F.3d at 1243. Here, the Court finds that the decision to begin the layoff process on August 4, 2011, was an adverse action because a reasonable employee would likely be dissuaded from engaging in protected activity if they knew that their company would begin the process of terminating their employment. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). In addition to meeting the second element of her prima facie retaliation case, the Court finds that there is a causal link between Plaintiffs August 3, 2011 email to Nirenberg and Leídos’ decision to begin the termination process on August 4, 2011. As noted above, a causal link can be inferred if the adverse employment decision is taken "within a reasonable period of time *1048after the complaint of discrimination has been made. Passantino, 212 F.3d at 507. Here, there is very close temporal proximity between the protected activity and retaliatory conduct: Leídos’ decision to begin the termination process occurred a mere one day after Plaintiff complained of unlawful discrimination. In other words, Leídos’ decision to initiate the layoff process “follow[ed] on the heels of protected activity.” Suzuki v. State, 119 Hawai’i 288, 303, 196 P.3d 290 (Haw.Ct.App.2008). Moreover, pursuant to Nassar, the Court finds that there is a genuine issue of material fact as to whether there is but-for causation between the August 3 complaint and Leídos’ decision to begin the termination process. As discussed above, Plaintiff submits in her declaration and deposition that other engineering position were available on Kauai, and that she would have been reassigned to one of those positions had she not complained of marital status discrimination. See Nassar, 133 S.Ct. at 2533. Further, Plaintiff states in her declaration that she would have been placed on the redeployment list before November 2011 had she not complained of marital status discrimination. Id. Because Plaintiff has established a pri-ma facie of retaliation, the burden shifts to Leídos “to provide a legitimate, nondiscriminatory reason for the adverse employment action.” Schefke, 96 Hawai’i at 426, 32 P.3d 52. In this case, Leídos submits that Plaintiff rejected Nirenberg’s offer to work part-time; and the company could not find her any other work. Further, Leídos notes that Plaintiff admitted during her deposition that she never contacted HR to help her with redeployment and did not apply to any positions through the company’s website. Consequently, “the burden shifts back to [Plaintiff] to show evidence demonstrating that the reason given by [Defendant] is pretextual.” Schefke, 96 Hawai’i at 426, 32 P.3d 52. Here, Plaintiff submits in her declaration and deposition that several engineering jobs were available on Kauai. (Decl. of PI. ¶¶ 63-65.) Further, Plaintiffs states in her declaration that Nirenberg— other than asking if she would be interested in working part-time — never contacted her regarding specific and available work. (Id. ¶ 58.) Also, Leídos admits that it should have placed Plaintiff on the redeployment list following her April 2011 removal from PRITEC, but that she was not placed on the redeployment list until after the company issued her a layoff notice on November 4, 2011. (Rough Transcript at 46; Decl. of Murray ¶ 26.) As such, the Court finds that there is a genuine issue of material fact as to whether there were any available engineering positions available for Plaintiff on Kauai. Further, and importantly, there is a triable issue of material fact as to whether Leídos’ reason for beginning the termination process was pretextual because the company admits that it should have placed Plaintiff on the redeployment list following her removal from PRITEC, but only placed her on the list after she received her layoff notice on November 4, 2011. Accordingly, the Court DENIES Defendant’s Motion for Summary Judgment with respect to Plaintiffs retaliation claim that, in response to her August 3, 2011 email to Nirenberg, Leídos initiated the termination process. 4. September 24, 2011 HCRC Charge Finally, Plaintiff asserts that, in response to her September 24, 2011 Charge of Discrimination with the HCRC, Leídos issued her a layoff notice on November 4, 2011. (Opp. at 31.) *1049The Court finds that Plaintiff establishes all three elements of her prima facie case. Again, Leídos argues that the only adverse employment action was her official separation from Leídos on December 2, 2011. (Mot. at 34.) However, as discussed above, “an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity.” Ray, 217 F.3d at 1243. Here, the Court finds that issuing Plaintiff the Notice of Layoff is an adverse action because a reasonable employee would be dissuaded from engaging in protected activity if the employee knew that their company would give them a layoff notice. See Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405. The Court further finds that a causal link exists between Plaintiffs September 24, 2011 HCRC Charge and the November 4, 2011 Notice of Layoff. Here, the adverse action occurred roughly six weeks after Plaintiff filed the HCRC Charge and, therefore, the timing alone is sufficient to infer causation. Miller, 885 F.2d at 505 (holding that discharges forty-two and fifty-two days after plaintiffs engaged in protected activity were sufficient to infer causation). Moreover, pursuant to Nassar, the Court finds that there is a genuine issue of material fact as to whether there is but-for causation between the September 24 Charge and Leídos’ issuance of the layoff notice. As discussed above, Plaintiff submits in her declaration and deposition that other engineering positions were available on Kauai, and that she would have been reassigned to one of those positions had she not complained of marital status discrimination. See Nassar, 133 S.Ct. at 2533. Further, Plaintiff states in her declaration that she would have been placed on the redeployment list before November 2011 had she not complained of marital status discrimination. Id. While Leídos initiated the lay-off process on August 4, 2011, the Court notes that Liss represented to the HCRC in his November 3, 2011 letter to the agency that Plaintiffs employment status was still under review. Since Plaintiff has established a prima facie of retaliation, the burden shifts to Leídos “to provide a legitimate, nondiscriminatory reason for the adverse employment action.” Schefke, 96 Hawai’i at 426, 32 P.3d 52. Here, Leídos submits that the company could not find any work for Plaintiff. Leídos further notes that Plaintiff admitted during her deposition that she never contacted HR to help her with redeployment and did not apply to any positions through the company’s website. Consequently, “the burden shifts back to [Plaintiff] to show evidence demonstrating that the reason given by [Defendant] is pretextual.” Schefke, 96 Hawai’i at 426, 32 P.3d 52. As indicated above, the Court finds that there is a genuine issue of material fact as to whether there were any available engineering positions available for Plaintiff on Kauai. Further, and importantly, there is a triable issue of material fact as to whether Leídos’ reason for issuing Plaintiff the layoff notice was pre-textual because the company admitted that it should have placed her on the redeployment list in April 2011 following her removal from PRITEC, but that she was only placed on the list after she received the Notice of Lay-Off on November 4, 2011. Accordingly, the Court DENIES Defendant’s Motion for Summary Judgment with respect to Plaintiffs retaliation claim that, in response to her September 24, 2011 HCRC Charge, Leídos issued her a Notice of Layoff. *1050 CONCLUSION For the foregoing reasons, the Court: (1) GRANTS IN PART AND DENIES IN PART Defendant’s Motion for Summary Judgment with respect to Plaintiffs H.R.S. § 378-2(1) claim; and (2) GRANTS IN PART AND DENIES IN PART Defendant’s Motion for Summary Judgment with respect to Plaintiffs H.R.S. § 378-2(2) claims. IT IS SO ORDERED. .Plaintiff violated the Local Rules by attaching her fifteen exhibits to her Memorandum in Opposition rather than to her CSF. See D. Haw. Local Rule 56.1(h) ("Affidavits or declarations setting forth facts and/or authenticating exhibits, as well as exhibits themselves, shall only be attached to the concise statement.”). Although her exhibits were not attached to her CSF, Plaintiff submitted a Declaration of Counsel authenticating Exhibits "A” to "L” and her own declaration authenticating Exhibits "M” to "O.” (See Doc. No. 55.) Accordingly, the Court will consider Plaintiff’s exhibits notwithstanding her failure to comply with the Local Rules. . The facts as recited in this Order are for the purpose of disposing of the current motion and are not to be construed as findings of fact that the parties may rely on in future proceedings. . For purposes of this Order, and in accordance with the company name change, the Court will refer to the original SAIC as "Leí-dos.” . Leidos objects to Plaintiff's statement in her declaration that her name had been placed on the EQDR proposal to merely represent the need in the budget for a systems engineer as being self-serving and uncorroborated. (Def.’s Obj.’s at 3, ¶ 19.) Citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002), Leidos makes similar objections to numerous other statements in Plaintiff’s declaration and her and her husband's depositions. (Reply at 1-2.) In Villiarimo, the Ninth Circuit held that it "has refused to find a 'genuine issue’ where the only evidence presented is 'uncorroborated and self-serving’ testimony.” Villiarimo, 281 F.3d at 1061. However, in S.E.C. v. Phan, 500 F.3d 895, 909-10 (9th Cir.2007), the Ninth Circuit explained that the declaration in Villiarimo "included facts beyond the declarant’s personal knowledge and 'provided no indication how she knows these facts to be true.’ ” Id. (citing Villiarimo, 281 F.3d at 1059 & n. 5, 1061) (alterations omitted). Citing United States v. Shumway, 199 F.3d 1093, 1104 (9th Cir.1999), the Phan court further held that [i]n most cases, consequently, that an affidavit is self-serving bears on its credibility, not on its cognizability for purposes of establishing a genuine issue of material fact. Only in certain instances — such as when a declaration states only conclusions, and not such facts as would be admissible in evidence, — can a court disregard a selfserving declaration for purposes of summary judgment. Phan, 500 F.3d at 909 (citing Shumway, 199 F.3d at 1104) (internal quotation marks and alterations omitted). Pursuant to Phan, this Court can consider Plaintiff’s statement that her name was a "placeholder” on the EQDR proposal because she provides detailed facts in support, and her statement is based on personal knowledge. Regarding Leidos’ numerous other objections, the Court will address a specific objection if the Court relies on disputed statements in Plaintiff's declaration (or her and her husband's depositions) when making its summary judgment determinations. . From April 5, 2011, to December 2, 2011, the official date of her separation from employment with Leídos, Plaintiff was placed on "overhead” and received the same salary and benefits as she had prior to removal from PRITEC. (Def.’s CSF at 8, ¶ 34; PL’s CSF at 2, ¶ 34.) . Neither party fully explains the meaning of the phrase "without coverage.” However, construing all inferences in favor of Plaintiff, it appears that a Leidos employee is "without coverage” when the employee is not assigned to any program or project but nevertheless remains employed with the company. . Leidos objects to Plaintiffs statement that Nirenberg told her that HR was going to begin the lay-off process as being self-serving and uncorroborated. (Def.'s Obj.'s at 6, ¶ 31.) However, contrary to Leidos’ contention, Plaintiff's statement is somewhat corroborated by the record. Specifically, the record indicates that after Nirenberg received Plaintiff's August 3, 2011 email, he sent an email on the same day to Murray "suggesting] [that] we present her with a lay off letter with the 4 week time period starting next Monday.” (Def.'s CSF Ex. 14.) Even assuming (but not finding) Exhibit 14 of Defendant's CSF does not corroborate Plaintiff's statement, the Court determines that it may still consider Plaintiff's statement because it is not conclusory and is based on her personal knowledge. See Phan, 500 F.3d at 909-10. . Leidos also objects to Plaintiff's statement in her declaration that Mark proposed to step down as PM in August 2011 as being self-serving and uncorroborated. (Def.’s Obj.'s at 3, ¶¶ 23-24.) As discussed in Part 11(B)(4) of the Discussion section of this Order infra, the Court finds that this allegation may not be considered because it was neither plead in the complaint nor raised administratively. Accordingly, the Court need not address Leidos’ objection. . When the party moving for summary judgment would bear the burden of proof at trial, the movant must present evidence which would entitle it to a directed verdict if the evidence were to go uncontroverted at trial. Miller v. Glenn Miller Prods., 454 F.3d 975, 987 (9th Cir.2006) (citation omitted). In contrast, when the nonmoving party would bear the burden of proof at trial, the party moving for summary judgment may meet its burden by pointing out the absence of evidence from the nonmoving party. Id. (citation omitted). . Nonetheless, a "conclusory, self-serving affidavit” that lacks detailed facts and supporting evidence may not create a genuine issue of material fact. F.T.C. v. Neovi, Inc., 604 F.3d 1150, 1159 (9th Cir.2010). Moreover, *1026"[wjhen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380, 127 S.Ct. 1769. “The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir.2012). . Neither party briefed whether one of the exceptions in H.R.S. § 378-3 applies in this case. However, at the April 21, 2014 hearing, Plaintiff argued that Leídos failed to meet its burden of establishing that one of the exceptions in H.R.S. § 378-3 apply. (Rough Transcript at 36-37.) Leídos asserted at the hearing that SH-2 served "legitimate business purposes.” (Id. at 5.) However, Leídos mis-characterizes the exceptions in H.R.S. § 378-3, which provides in relevant part: Nothing in this part shall be deemed to: (2) Prohibit or prevent the establishment and maintenance of bona fide occupational qualifications reasonably necessary to the normal operation of a particular business ... and that have a substantial relationship to the functions and responsibilities of prospective or continued employment; • (3) Prohibit or prevent an employer ... from refusing to hire, refer, or discharge any individual for reasons relating to the *1028ability of the individual to perform the work in question!.] Here, Leidos did not address whether SH-2 is designed to maintain "bona fide occupational qualifications” or relates to the ability of its employees to perform work. Accordingly, Leidos fails to meets its burden of showing that one of the exceptions in H.R.S. §.378-3 apply in this case. . The Court notes that, in the beginning of the report, Leidos struck out the names "Susan Harris and Zak Harris” and replaced them with "Amy Smith and Sean Smith.” (Id.) The Court further notes that the Indirect Supervision Discussion appears to incorrectly refer to "Zak Harris” rather than "Sean Smith.” (See PL's CSF Ex. L at 3.) Because the Court must view the facts and draw reasonable inferences in the light most favorable *1033to Plaintiff, the Court regards the report (for purposes of this Motion) as referring to Sean Smith, and not Zak Harris. . Leídos argued at the April 21 hearing that Liss did not make a false statement regarding the content of the 2011 assessment report because the agency "had that information before it.” (Rough Transcript at 24.) The record indicates that Liss attached the report to a separate letter also sent to the HCRC on November 3, 2011. (See Pl.’s CSF Ex. D.) . In the November 3, 2011 and February 16, 2012 position statements letters, Liss quoted the full direct supervision discussion of the 2011 assessment report, but omitted the following language from the Indirect Supervision Discussion: "In previous SH-2 assessments, Shannon was working under TENA and not exclusively under PRITEC. The policy lists 'program management’ as .an indirect supervision area.” (See PL's CSF Exs. C & E.) . Leídos further admits that the 2005 assessment was conducted, in part, by Marjorie Bailey (Leídos’ VP of HR). (Deck of Murray ¶ 13.) . Leidos argues that its determination that the Wigents’ working relationship violated SH-2 was based on Mark including Plaintiff on a staffing plan for PRITEC. (Mot. at 31.) However, Plaintiff asserts that her name had been placed on the staffing plan, or '‘EQDR” proposal, to merely represent the need in a budget for a systems engineer, and that the placement of her name did not mean she would be assigned any work on the project. Consequently, a genuine issue of material fact exists over whether the EQDR proposal would actually modify the Wigents’ work structure sufficient to warrant a finding that Plaintiff and her husband’s working relationship violated SH-2. Even assuming (but not finding) the EQDR proposal would modify the Wigents’ work structure, Leidos does not explain why it could not re-structure the Wig-ents’ working relationship to avoid a SH-2 violation, as it had previously done in 2005. The Court also notes that Mark's submission of the EQDR proposal appeared to merely trigger the investigation into the Wigents’ working relationship, and did not form the actual basis for Leidos finding a SH-2 violation. Finally, Plaintiff submits in her declaration that the amount of work allocated to the systems engineer on the EQDR proposal represented only five percent of the total budget. . Plaintiff argues that the alleged retaliation against Mark is actionable by her, pursuant to the U.S. Supreme Court’s decision in Thompson v. North American Stainless, LP, 562 U.S. 170, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011). In Thompson, the Court rejected a categorical rule that third-party reprisals do not violate Title VII and held that an employer’s alleged act of firing an employee in retaliation against the employee’s fiancee who engaged in protected activity, if proven, constituted unlawful retaliation. Thompson, 131 S.Ct. at 867-68. Under Thompson, Plaintiff has standing to sue for any retaliatory acts committed against her because of her husband’s protected activity. See id. at 868. However, it is unclear if Plaintiff has standing to sue for retaliatory acts taken against her husband since he is not a party to this case. The only adverse action taken against Mark appears to be the negative performance review and his lack of pay raise. As indicated below, the Court finds that Plaintiff's retaliation claim arising from alleged instances of protected activity occurring in January and February 2011 should be barred. Accordingly, the Court need not address the issue of whether Plaintiff has standing to sue for any retaliatory acts committed against Mark in response to the Wigents' January and February 2011 complaints. . Plaintiff does not assert in her Complaint (or deposition or declaration) that during the March 28, 2011 teleconference meeting the Wigents raised any concerns that removing her from PRITEC would violate H.R.S. § 378-2’s prohibition on marital status discrimination (or words to that effect). Thus, it appears that the Wigents did not engage in any protected activity during the March 28, 2011 meeting. . Leídos also argues that Plaintiff's allegation that Leidos refused to reassign her after she complained about discrimination in April 2011 is based on conclusory allegations; according to Leidos, Plaintiff offers no evidence in support of her allegations. (Mot. at 37.) The Court finds that there is a genuine issue of material fact as to whether Leidos was "actively looking for ways to keep Plaintiff employed with the company.” (Id.) In partic*1045ular, Plaintiff submits in her declaration that during the March 28, 2011 teleconference meeting Leidos told her that she would be placed on the redeployment list immediately. However, as discussed hereinbefore, Leidos conceded at the April 21 hearing that the company should have placed her on the redeployment list in April 2011 following her removal from PRITEC, but only placed her on the list after she received the Notice of Lay-off on November 4, 2011. . Leídos objects to Plaintiff's statement that other engineering jobs were available on Kauai as being self-serving and uncorroborated. The Court finds that it can consider Plaintiff's statement because she provides detailed facts in support of her assertion, and her statement was based on personal knowledge. See Phan, 500 F.3d at 909-10. Specifically, Plaintiff submits in her declaration that several projects on Kauai — including "ANSS” and “NGRC” — had an opening for a systems engineer, and that she was qualified to perform the work. (Decl. of PL ¶¶ 64-65.)

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217548/

Dismissed by unpublished PER CURIAM opinion. PER CURIAM. In these consolidated appeals, Brian Peter Zater seeks to appeal the district court’s orders denying relief on his motion filed under 28 U.S.C. § 2255 (2000). In No. 02-7658, Zater seeks to appeal the district court’s order adopting the report and recommendation of the magistrate judge and dismissing the portion of his § 2255 motion alleging ineffective assistance of counsel based on counsel’s failure to file a direct appeal. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2000), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2000); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Zater seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for lack of jurisdiction. In No. 03-6273, Zater seeks to appeal the district court’s order dismissing the remainder of Zater’s claims under § 2255. 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. See 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. *160See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir.), cert. denied, 534 U.S. 941, 122 S.Ct. 318, 151 L.Ed.2d 237 (2001). We have independently reviewed the record and conclude that Zater has not made the requisite showing. Accordingly, we deny leave to proceed in forma pauperis, 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217549/

Dismissed by unpublished PER CURIAM opinion. PER CURIAM. Darryl Allmond appeals the district court’s orders denying relief on his 42 U.S.C. § 1983 (2000) complaint and denying his motion for discovery sanctions. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Allmond v. Cozza, No. CA-02-1106-A (E.D. Va. Dec. 23, 2002; filed Jan. 2, 2003 & entered Jan. 6, 2003). 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217550/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Darryl Allmond seeks to appeal the district court’s orders denying permission to proceed in forma pauperis and dismissing his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for the reasons stated by the district court. See Allmond v. Mosely, No. CA-02-1533-A (E.D. Va. Nov. 14, 2002; filed Dec. 16, 2002 & entered Dec. 18, 2002). 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217551/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Alfred Abdo, Jr., appeals from the district court’s orders: (1) permanently enjoining him from — among other things— giving tax advice, preparing income tax returns for others, and promoting abusive tax schemes; and (2) denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Abdo v. Internal Revenue Serv., No. CA-01-98-1 (M.D.N.C. Nov. 8 & Nov. 27, 2002). 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217552/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Terri Baker appeals the district court’s order denying her suit alleging discrimination based on race and disability. We have reviewed the record and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Baker v. Greyhound Bus Line, 240 F.Supp.2d 454 (D.Md.2003). 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217554/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Loretta Jane Reeves appeals the district court’s judgment granting the Appellees’ motion for summary judgment and dismissing her hostile work environment claim. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Reeves v. Virginia Dep’t of Corr. Educ., No. CA-02-20-2, 2003 WL 76117 (W.D.Va. Jan. 9, 2003). 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224370/

ORDER GRANTING PLAINTIFF’S MOTION FOR ORDER REQUIRING DEFENDANT CHRISTOPHER SALEM TO ORDER AND PAY FOR TRANSCRIPTS ALAN C. KAY, Senior District Judge. For the following reasons, the Court hereby GRANTS Plaintiff OneWest Bank, *1051FSB’s Motion for Order Requiring Defendant Christopher Salem to Order and Pay for Transcripts. FACTUAL AND PROCEDURAL BACKGROUND This case arises out of two loans that Defendants J. Randall Farrar and Christopher Salem obtained from La Jolla Bank, FSB, which were secured by two mortgages for each loan on two pieces of residential property. Because the Court and the parties are familiar with the extensive history of this case, the Court includes here only those facts necessary for the disposition of the instant motion. On August 26, 2013, the parties placed a settlement on the record, and the magistrate judge set a status conference regarding the completion of the settlement agreement for September 11, 2013. (Doc. Nos. 140, 142, 145.) At the status conference, the parties informed the magistrate judge that they were circulating and reviewing the draft settlement agreement. (Doc. No. 144.) The magistrate judge held another status conference on September 19, 2013, during which the parties stated that the settlement documents had been circulated, but that Defendant Salem needed additional time to review and sign them. The magistrate judge set a deadline of September 23, 2013 for Salem to either execute the final settlement agreement or submit a final redline to the parties for review. (Doc. No. 148.) Salem did not comply with the magistrate judge’s instructions, instead circulating to the parties an entirely new settlement agreement. Plaintiff OneWest Bank, FSB therefore filed a Motion to Enforce Settlement Agreement on October 1, 2013. (Doc. No. 156.) A hearing was held on the Motion to Enforce on October 15, 2013, and on October 31, 2013 the magistrate judge issued its Findings and Recommendations Granting Plaintiffs Motion to Enforce Settlement Agreement. (Doc. No. 171 (“10/31/13 F & R”).) There being no objections to the 10/31/13 F & R, this Court issued its order adopting it on November 19, 2013, 2013 WL 6175321. (Doc. No. 173 (“Order to Enforce Settlement”).) On November 26, 2013, Defendant Salem filed his notice of appeal, informing this Court that he is appealing the Order to Enforce Settlement to the Ninth Circuit. (Doc. No. 174.) Pursuant to a February 5, 2014 Order issued by the Ninth Circuit, Defendant Salem was required to order all necessary transcripts for his pending appeal, or to provide OneWest with a partial or non-designation of transcripts, as well as a statement of the issues that Salem intends to present on appeal. If necessary, OneW-est was then required to file and serve on Salem by March 4, 2014 a designation of additional transcripts to be ordered, after which Salem was required to either order all transcripts identified by OneWest, or certify to this district court that the transcripts are unnecessary to the resolution of the appeal. Pursuant to the Ninth Circuit’s order, the transcripts were due on April 17, 2014. (See Doc. No. 226, Ex. A (February 5, 2014 Order)). On February 24, 2014, Salem filed his non-designation of transcripts and statement of issues he intends to present on appeal. (Doc. No. 226, Ex. B.) In this filing, Salem stated without elaboration or explanation that no transcripts are necessary to support the issues to be presented on appeal. (Id. at 1.) On March 4, 2014, OneWest filed its Notice of Designation of Additional Transcripts to be Ordered by Defendant Christopher Salem, requesting that Salem order the following transcripts: (1) the transcript of the August 26, 2013 settlement on the record, (2) the transcript of the September 19, 2013 status confer*1052ence, (3) the transcript of the October 1, 2013 pretrial conference, and (4) the transcript of the October 15, 2013 hearing on OneWest’s Motion to Enforce.1 (Doc. No. 226.) OneWest asserted that the transcripts are necessary because the appeal arises from Salem’s breach of the settlement agreement the parties put on the record before the magistrate judge. The transcripts OneWest requested included that settlement on the record, as well as subsequent hearings addressing Salem’s breach. (Id. at 3.) Following OneWest’s March 4, 2014 Notice, Defendant Salem took no additional action. Thus, on April 29, 2014, OneWest filed the instant Motion for Order Requiring Defendant Christopher Salem to Order and Pay for Transcripts. (Doc. No. 238.) Salem filed his Objection to the motion on May 7, 2014. (Doc. No. 241.) OneWest filed its Reply on May 12, 2014. (Doc. No. 242.) Pursuant to Local Rule 7.2(e), the Court elects to decide the instant motion without a hearing. DISCUSSION Rule 10 of the Federal Rules of Appellant Procedure provides a procedure by which the record on appeal is created. Pursuant to Rule 10(b), within fourteen days of filing a notice of appeal, it is the appellant’s duty to either order transcripts or file a certificate stating that no transcript will be ordered. If the entire transcript is not ordered, the appellant must file a statement of the issues he intends to raise on appeal and serve that statement and the certificate on the appellee. Fed. R.App. P. 10(b)(3)(A). Then, if the appel-lee considers it necessary to have a transcript, he must file and serve on the appellant a designation of additional parts to be ordered. Fed. R.App. P. 10(b)(3)(B). If the appellant does not then, within fourteen days, order the designated transcript parts, the appellee may either order the transcript himself, or file a motion in the district court for an order requiring the appellant to do so. Fed. R.App. P. 10(b)(3)(C). Here, after Salem certified that no transcripts were necessary, OneWest provided notice to Salem of the transcripts it believes are necessary for resolution of the appeal on March 4, 2014. (See Doc. No. 226.) Salem did not, within fourteen days, order the transcripts or otherwise act on OneWest’s notice. The Court must therefore determine whether to grant OneW-est’s motion and compel Salem to order the transcripts. Despite a careful review of Rule 10 and the relevant case law, the Court has found little guidance in the law as to the standard a district court should apply when ruling on a motion to compel an appellant to order a transcript. The Rule does state that “[i]f the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.” Fed. R.App. P. 10(b)(2). It also states that the motion to compel should be filed “if the appellee considers it necessary to have a transcript,” but provides no indication of the standard a court should apply when considering such a motion. Likewise, the Court can find no Ninth Circuit precedent that provides such a standard. *1053The Ninth Circuit's Circuit Rules do, however, provide some guidance regarding the parties’ responsibility for establishing the record on appeal. For example, the Circuit Rules indicate that the excerpts of record should include any documents, including transcripts, that are “necessary to the resolution of an issue on appeal.” Cir. R. 30-1.4(a). The Circuit Rules state expressly that the purpose of the excerpts of record “is to provide each member of the panel with those portions of the record necessary to reach a decision.” Cir. R. 30-l.l(a). Indeed, the parties are required to ensure that “those parts of the record necessary to permit an informed analysis of their positions are included in the excerpts.” Id. Based on this language, it appears that those portions of the transcripts that are necessary to the resolution of the issues on appeal, and necessary to permit an informed analysis of the parties’ positions, should be made part of the excerpts of record and, thus, should be ordered from the district court in the first instance. Here, the Court finds that under any standard the transcripts OneWest has identified are required for resolution of Salem’s appeal. Salem is appealing this Court’s Order to Enforce Settlement. (Doc. No. 173.) In that Order, the Court concluded that the final settlement agreement was consistent with the material terms set forth in the settlement on the record made before the magistrate judge on August 26, 2013. (See Doc. Nos. 140, 142.) Salem, in his Objection to the instant motion, appears to argue that the basis of his appeal is that there was no valid settlement on the record, and that he should not be compelled to sign the settlement agreement or abide by its terms. (See Obj. at 5.) Further, in his statement of the issues, Salem stated that he is claiming in his appeal that the Order to Enforce Settlement “was not supported by the known facts.” (Doc. No. 226, Ex. B at 2.) Thus, it appears that the existence, validity, and terms of the settlement between the parties will be at issue on appeal. The transcript of the August 26, 2013 settlement conference when the settlement was placed on record will therefore be necessary for the Ninth Circuit to assess Salem’s claims. Likewise, the transcript of the hearing on OneWest’s motion to enforce, which resulted in the magistrate judge’s decision (as adopted by this Court) that Salem is appealing will also be necessary and relevant to the Ninth Circuit’s analysis of Salem’s appeal. As such, the Court concludes that it is appropriate to order Defendant Salem to order and pay for those two transcripts. CONCLUSION For the foregoing reasons, the Court GRANTS OneWest’s Motion for Order Requiring Defendant Christopher Salem to Order and Pay for Transcripts, and ORDERS that Defendant Salem order and pay for the following transcripts: 1) Transcript of the August 26, 2013 settlement on the record with Magistrate Judge Chang; and 2) Transcript of the October 15, 2013 hearing before Magistrate Judge Chang on OneWest’s Motion to Enforce. IT IS SO ORDERED. . In its Reply in support of the instant motion, OneWest withdrew its request for Salem to order the transcripts from the September 19, 2013 and October 1, 2013 conferences before Magistrate Judge Chang. (Reply at 2 n. 1.) As such, OneWest is requesting that Salem order two transcripts: the transcript of the August 26, 2013 settlement on the record, and the transcript from the October 15, 2013 hearing on OneWest’s motion to enforce.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224371/

MEMORANDUM DECISION AND ORDER CANDY WAGAHOFF DALE, United States Chief Magistrate Judge. I. INTRODUCTION It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority. —The Honorable Harry Blackmun1 This case asks a basic and enduring question about the essence of American government: Whether the will of the majority, based as it often is on sincere beliefs and democratic consensus, may trump the rights of a minority. Plaintiffs are two same-sex couples who desire to marry in Idaho and two same-sex couples who legally married in other states and wish to have their marriages recognized in Idaho. Under the Constitution and laws of the State of Idaho (Idaho’s Marriage Laws), marriage between a man and a woman is the only legally recognized domestic union. Idaho effectively prohibits same-sex marriage and nullifies same-sex marriages legally celebrated in other states. Plaintiffs request the Court declare these laws unconstitutional and enjoin Idaho from enforcing them, which would allow the Unmarried Plaintiffs to marry and the Married Plaintiffs to be legally recognized as married in the state they consider home. Although 17 states legally recognize same-sex marriages,2 Idaho is one of many states that has chosen the opposite course. Like courts presiding over similar cases across the country, the Court must examine whether Idaho’s chosen course is con*1060stitutional. Significantly, the Supreme Court of the United States recently held that the federal government cannot constitutionally define marriage as a legal union between one man and one woman. United States v. Windsor, — U.S. -, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). Writing for the majority in Windsor, Justice Kennedy reasoned the “purpose and effect” of the federal man-woman marriage definition was “to disparage and injure” legally married same-sex couples in derogation of the liberty, due process, and equal protection guaranteed by the Fifth Amendment to the United States Constitution. Id. at 2696. Here, the Court considers a related but distinct question: Do Idaho’s Marriage Laws deny Plaintiffs the due process or equal protection guaranteed by the Fourteenth Amendment to the United States Constitution? After careful consideration, the Court finds Idaho’s Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government — a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights. See, e.g., id. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.... ”). Idaho’s Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny. II. BACKGROUND Marriage works a fundamental change on the lives of all who experience it. The decision to marry is both a deeply personal expression of love and a public declaration of commitment. For many, marriage is also a profoundly important religious institution, cementing and celebrating a lifelong union enriched by enduring traditions. These traditions vary from faith to faith, but when most people think of marriage they think of the ceremony — the wedding — with all of the hope and joy those pivotal moments entail. Compared to the immense personal and spiritual significance of marriage as a ceremonial rite, the civil institution of marriage is much more prosaic. A. Idaho’s Marriage Laws A series of licensing statutes govern civil marriage in Idaho. As far as the State is concerned, marriage is a contract evidenced by a State-issued license and a solemnization. Idaho Code § 32-201(1). The solemnization itself can be secular or religious, and the officiant need not be an ordained minister. Id. §§ 32-303 to -304. Regardless of their preferred method of solemnization, opposite-sex couples are eligible for a marriage license so long as they meet certain minimal requirements. See id. §§ 32-202 (age limitations); -205, -206 (consanguinity limitations); -207 (prohibition of polygamous marriages). A multitude of legal benefits and responsibilities flow from a valid civil marriage contract. These marital benefits include the right to be recognized as a spouse when petitioning to adopt a child born to a spouse, see id. §§ 16-1503, -1506; have access to an ill spouse at the hospital and to make medical decisions for an ill or incapacitated spouse without a written power of attorney, see id. § 39-4504; file a joint state income tax return as a married couple, see id. § 63-3031; inherit a share of the estate of a spouse who dies without a will, see id. § 15-2-102; preclude a spouse from testifying in a court proceeding about confidential communications made during the marriage, see id. § 9-203; *1061and jointly own community property with right of survivorship, see id. § 15-6-401. These incidents of marriage touch every aspect of a person’s life. From the deathbed to the tax form, property rights to parental rights, the witness stand to the probate court, the legal status of “spouse” provides unique and undeniably important protections. Opposite-sex married couples enjoy many of these benefits by automatic operation of law. A couple need not marry in Idaho to enjoy these benefits, as Idaho generally follows the so-called “place of celebration rule.” See Morrison v. Sunshine Mining Co., 64 Idaho 6, 127 P.2d 766, 769 (1942) (“Having assumed and entered into the marital relation with appellant in Montana, the status thus established followed Morrison to Idaho and could not be shed like a garment on entering this state.”). Under this longstanding rule, a marriage contracted outside Idaho will be valid in Idaho if the marriage is valid where contracted. See Idaho Code § 32-209. That is, unless the marriage is between two persons of the same sex. Id. Same-sex couples are categorically prohibited from obtaining a marriage license in Idaho or from having their otherwise valid out-of-state marriages recognized in Idaho. But for the fact they are same-sex couples, Plaintiffs would either be recognized as married or be eligible to marry. Plaintiffs challenge three specific provisions of Idaho law.3 First, Idaho Code § 32-201 defines marriage as “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making it is necessary.” Id. § 32-201(1). This statute prohibits same-sex marriage regardless of whether a couple otherwise qualifies for a marriage license. Second, Idaho Code § 32-209 provides the mechanism by which Idaho recognizes the legal validity of marriages contracted in other states or countries. The statute provides: All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state. Id. § 32-209. This statute creates a two-tiered system for out-of-state marriages. While opposite-sex couples benefit from the place of celebration rule, married same-sex couples shed their marital status upon entering Idaho. Although the State’s non-recognition policy is not limited to same-sex marriages and marriages contracted with the intent to evade Idaho law, the statute lists no other form of marriage specifically. Third, the Idaho Constitution effectively bans legal recognition of same-sex unions. In November of 2006, a majority of Idaho’s electorate voted to add the following language to the Idaho Constitution: “A mar*1062riage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” Idaho Const. Art. Ill, § 28. This provision has the combined legal effect of the two statutes referenced above. But, by virtue of its place in the Idaho Constitution, the amendment imposes powerful restraints on Idaho’s Legislature and Judiciary. The provision effectively precludes a state court from finding that Idaho law requires the State to recognize any type of same-sex union. And it precludes every legislative body in Idaho from recognizing civil unions or any other same-sex relationship approximating marriage. Absent a superseding constitutional amendment, no branch of state government may authorize or recognize the marriage of two persons of the same sex. Thus, Idaho’s Marriage Laws prevent same-sex couples, whether married or unmarried, from obtaining the marital status and benefits afforded to opposite-sex couples. B, The Plaintiffs Plaintiffs are four same-sex couples. The Married Plaintiffs, Susan Latta and Traci Ehlers, and Lori Watsen and Shar-ene Watsen, legally married in other states and wish to have their marriages recognized in Idaho. The Unmarried Plaintiffs, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson, desire to be married in Idaho, but the County Recorder of Ada County, Defendant Rich, denied their marriage license applications. The following undisputed facts are contained in the pleadings and in Plaintiffs’ declarations. 1. Susan Latta and Traci Ehlers Susan Latta has lived in Boise for 22 years. Traci Ehlers has resided in Idaho’s Treasure Valley for 38 years. Latta is a professional artist and adjunct professor at Boise State University, and Ehlers owns a small business in Boise. They met at a book club and began dating in 2003. Ehl-ers proposed to Latta in 2004, and, in 2006, the couple celebrated “a meaningful but not legally binding wedding ceremony in Boise.” (Latta Dec. ¶ 11, Dkt. 48.) In 2008, the couple legally married in California soon after that state began allowing same-sex marriages. Neither Latta nor Ehlers had been married before, but they decided to marry because they wanted to spend the rest of their lives together. Although Ehlers never thought she would have children, she is now step-mother to Latta’s children and step-grandmother to Latta’s grandchildren. Both Latta and Ehlers attest that Idaho’s refusal to recognize their marriage complicates and demeans their lives. They worry about the ramifications of aging without a legally recognized marriage, a reality that implicates taxes, inheritance, Social Security benefits, hospital visitation rights, and medical decision-making. Although they can file a “married” tax return for federal purposes, Idaho law requires them to file “single” state tax returns. Latta and Ehlers plan to seek professional assistance to prepare their state tax returns. The couple also is unsure about the status of property they acquired during their marriage because a quitclaim deed purporting to grant each of them title to community property with right of survivor-ship may not be enforceable absent a legally recognized marriage. Ehlers explains, “it is painful that the state we love, the place that we have made our home, where we vote and pay taxes, where we have our businesses, where we participate, and volunteer, and donate, treats us as second-class citizens.” (Ehlers Dec. ¶ 18, Dkt. 49.) 2. Lori Watsen and Sharene Watsen Lori and Sharene Watsen reside in Boise, where Sharene works as a physician *1063assistant and Lori works as a social worker. Friends introduced the Watsens in 2009, and the two have been together as a couple since their first date. In 2011, the couple married in a small legal ceremony-in New York. They held a larger celebration of their marriage at their church in Boise during the summer of 2012. The Watsens both describe their marriage as an important symbol of their love for and commitment to each other, not least because they both grew up in deeply religious families that value the institution greatly. Also in 2012, the Watsens decided to start a family. Their son was conceived by artificial insemination in September 2012, and Sharene gave birth in May 2013. Although they requested that Lori be listed as their son’s parent, his birth certificate lists only Sharene. In the summer of 2013, the Watsens hired an attorney to assist Lori’s adoption of their son. An Ada County magistrate judge dismissed the adoption petition and, despite their valid New York marriage, deemed Lori to be Sharene’s unmarried “cohabitating, committed partner” without legal standing to adopt Sharene’s son. (S. Watsen Dec. Ex. C., Dkt. 51-3 at 5.) The couple felt demeaned by the magistrate judge’s decision, and Lori plans to again petition for adoption.4 Like Latta and Ehlers, the Watsens are concerned about the many complications Idaho’s Marriage Laws add to their family life. Lori Watsen must create a new medical power of attorney every six months, for, without one, she cannot consent to medical treatment for her son. In addition, the Watsens have the same tax and community property problems as Latta and Ehlers. Above all, Lori Watsen wants their “son to have the same pride in us, as his parents, that I feel for my parents, who have been married for 50 years.” (L. Wat-sen Dec. ¶ 36, Dkt. 50.) 3. Shelia Robertson and Andrea Alt-mayer Shelia Robertson and Andrea Altmayer live together in Boise. Altmayer works as a massage therapist. Robertson, who has advanced .training in communicative disorders, teaches deaf students at a local school district and works part-time as a video relay interpreter. The two have been in a committed, exclusive relationship since friends introduced them 16 years ago. If Idaho allowed same-sex marriages, they would have married years ago. Although the couple considered marrying outside Idaho, they did not wish to incur the expense of traveling away from their family and friends only to return home with a marriage not recognized in Idaho. Even so, Robertson and Altmayer decided to start a family. Altmayer became pregnant through artificial insemination and gave birth to their son in 2009. Similar to the Watsens’ experience, Robertson and Altmayer completed birth certificate forms identifying Altmayer as the mother and Robertson as a parent. But the birth certificate lists only Altmayer as their son’s parent. The lack of a legally recognized parental relationship between Robertson and her son means she cannot consent to medical treatment for him and *1064otherwise prevents the couple from equally sharing numerous parental responsibilities. Robertson and Altmayer worry their son will not have the security and stability afforded by two legal parents. Both are deeply concerned their son will grow up believing there is something wrong with his family because his parents cannot marry. On November 6, 2013, Robertson and Altmayer submitted a marriage license application to the Ada County Recorder. The application was denied only because Robertson and Altmayer are both women. Demeaned but undeterred by this experience, the couple wishes to be married “so that other people understand that we are a family, in a permanent life-long relationship.” (S. Robertson Dec. ¶ 15, Dkt. 53.) 4. Amber Beierle and Rachael Robertson Amber Beierle and Rachael Robertson both grew up, reside, and wish to marry in Idaho. Beierle holds a M.S. in Applied Historical Research and works for the Idaho State Historical Society. Roberston is an Army veteran, having served a tour of duty in Iraq from June 2004 to November 2005. During her military service, Robertson earned the Army Combat Medal and the Soldier Good Conduct Medal. She was honorably discharged from the Army in 2008 and now manages a warehouse in Boise. Beierle and Robertson met in 2006 and began dating in 2010. The two have been in a committed, exclusive relationship since Valentine’s Day, 2011. They bought a house together in December of 2012. The couple plans to raise children, but they worry their children will grow up thinking something is wrong with their family because Beierle and Robertson cannot marry. Although they considered marrying in another state, they wish to be married in their home state of Idaho. And, even if they were married in another state, Idaho law would prevent them from being buried together at the Idaho Veterans Cemetery because they are a same-sex couple. Beierle and Robertson also applied for a marriage license on November 6, 2013. Although they otherwise qualify for a marriage license, the Ada County Recorder’s Office denied the application because they are both women. This experience demeaned Beierle and Robertson. They “want to have the same freedom as opposite-sex couples to marry the person [they] love and to share the benefits and responsibilities of marriage and in the recognition and protections of marriage.” (Beierle Dec. ¶ 19, Dkt. 54.) C. The Defendants Defendant C.L. “Butch” Otter is the Governor of the State of Idaho. He is sued in his official capacity. As Governor, Defendant Otter is responsible for upholding and ensuring compliance with the Idaho Constitution and statutes enacted by the Legislature, including the marriage laws at issue in this case. See Idaho Const. Art. IV, § 5 (“The supreme executive power of the state is vested in the governor, who shall see that the laws are faithfully executed.”). Defendant Christopher Rich is Recorder of Ada County, Idaho. He is sued in his official capacity. As the Ada County Recorder, Defendant Rich has “the authority to issue marriage licenses to any party applying for the same who may be entitled under the laws of this state to contract matrimony.” Idaho Code § 32-401. On November 6, 2013, an authorized deputy of Defendant Rich denied the Unmarried Plaintiffs’ applications for marriage licenses because, as same-sex couples, they were not entitled to contract matrimony in Idaho. *1065Early in this case, the State of Idaho moved and was permitted to intervene as a defendant. (Dkt. 38.) The State, by and through the Idaho Attorney General, asserts a strong, independent interest in defending Idaho’s laws against constitutional attack. Throughout this litigation, the State has joined in Recorder Rich’s motions and briefing. D. Requested Relief Plaintiffs bring suit under 42 U.S.C. § 1983, alleging that Governor Otter and Recorder Rich acted in their official capacities and under color of law to deprive them of rights protected by the Fourteenth Amendment to the United States Constitution.5 They request a declaration that all Idaho laws prohibiting same-sex marriage or barring recognition of valid out-of-state same-sex marriages violate the due process and equal protection guarantees in the Fourteenth Amendment. They also request a permanent injunction against enforcement of any Idaho law that would prohibit or withhold recognition of same-sex marriages. These claims constitute a facial constitutional attack on the validity of any Idaho law that prohibits same-sex marriage in Idaho or withholds recognition of same-sex marriages validly contracted in another state.6 III. STANDARD OF REVIEW The parties seek judicial resolution of this case via three motions: Defendant Recorder Rich and Defendant-In-tervenor Idaho’s motion to dismiss for failure to state a claim (Dkt. 43)7, Plaintiffs’ motion for summary judgment (Dkt. 45), and Defendant Governor Otter’s motion for summary judgment (Dkt. 57). Typically, motions to dismiss are evaluated under different standards than motions for summary judgment. But here, the motion to dismiss must be treated as a motion for summary judgment. Recorder Rich and Defendant-Interve-nor Idaho’s motion to dismiss attaches and references numerous documents outside the pleadings. These documents include five articles on marriage and parenting. (Dkt. 30-6 to -10.) The parties vigorously dispute the meaning and import of the sociological literature on these points. Because the Court considered the literature submitted with the motion to dismiss, the motion must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(d); see also Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 921-22 (9th Cir.2004) (finding a represented party’s submission of extra-pleading materials justified treating motion to dismiss as motion for summary judgment). The Court will evaluate all pending motions under the summary judgment standard. A party is entitled to summary judgment when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” *1066Fed.R.Civ.P. 56(a). When parties submit cross-motions for summary judgment, “the court must review the evidence submitted in support of each cross-motion” and decide each on its own merits. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001). IV. ANALYSIS The Court has considered the parties’ briefs and supporting materials, as well as oral arguments presented during a May 5, 2014 hearing on all dispositive motions. As a preliminary matter, the Court finds the Supreme Court’s summary decision in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), does not prevent lower federal courts from deciding the constitutional issues in this case. With respect to Plaintiffs’ due process claim, Idaho’s Marriage Laws are subject to strict scrutiny because they infringe upon Plaintiffs’ fundamental right to marry. Under the Equal Protection Clause, Idaho’s Marriage Laws are subject to heightened scrutiny because they intentionally discriminate on the basis of sexual orientation. The Court finds that Idaho’s Marriage Laws do not survive any applicable level of constitutional scrutiny and therefore violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. The reasons for these findings are discussed below. A. Baker v. Nelson Defendants initially argue that Baker v. Nelson is binding precedent that shields Idaho’s Marriage Laws from constitutional attack. Baker was an appeal to the United States Supreme Court from a decision of the Supreme Court of Minnesota. The Minnesota court held that neither Minnesota law nor the United States Constitution required the issuance of marriage licenses to a same-sex couple. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). Based on a brief review of then-existing due process and equal protection jurisprudence, the Minnesota court rejected the plaintiffs’ due process and equal protection claims. On appeal, the Supreme Court summarily dismissed the case “for want of a substantial federal question.” Baker, 409 U.S. at 810, 93 S.Ct. 37. Summary dismissals have real but narrow precedential value. “A summary disposition affirms only the judgment of the court below, and no more may be read into [the] action than was essential to sustain the judgment.” Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182-83, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (citations omitted). The dismissal “prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided” in the action. Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). When a case raises the precise issue addressed by a summary dismissal, “the lower courts are bound ... until such time as the [Supreme] Court informs them that they are not.” Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quotation omitted). Defendants correctly note that Baker necessarily decided the precise issues presented in this case and that the Supreme Court has not expressly overruled Baker in the four decades after it was summarily decided. Although Baker speaks to the precise issues presented in this case, there is good reason to find its guidance no longer binding. The Supreme Court has instructed that “inferior federal courts had best adhere to the view that if the Court has branded a question as insubstantial, it re*1067mains so except when doctrinal developments indicate otherwise.” Hicks, 422 U.S. at 344, 95 S.Ct. 2281 (emphasis added). Defendants make forceful arguments about the binding nature of summary dismissals, but they overlook the doctrinal developments exception stated in Hicks. In fact, Defendants cite only one case that analyzes the doctrinal developments since Baker, and that case was decided before Windsor. See Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1085-86 (D.Haw.2012) (concluding pre-Windsor doctrinal developments did not overcome Baker). The Supreme Court’s due process and equal protection jurisprudence has developed significantly in the four decades after Baker, and, in last year’s Windsor decision, the Court dramatically changed tone with regard to laws that withhold marriage benefits from same-sex couples. In 1972, the Supreme Court had not recognized gender as a quasi-suspect classification. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).8 Nor had the Court applied heightened equal protection scrutiny to gender-based classifications. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). It was not until 1996 that the Supreme Court recognized laws based on a “ ‘bare ... desire to harm’ ” homosexuals were not rationally related to any legitimate government interest. Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (quoting U.S. Dept. of Agric. v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)). Since Baker, the Supreme Court’s equal protection jurisprudence has expanded, scrutinizing both gender and sexual orientation discrimination in more exacting ways. In 1972, states could constitutionally criminalize private, consensual sex between adults of the same sex based on nothing more than moral disapproval of the homosexual lifestyle. See Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). But, just 11 years ago, the Court reversed course and held the government could not lawfully “demean [homosexuals’] existence or control their destiny by making their private sexual conduct a crime.” Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. Lawrence reaffirmed that the Due Process Clause protects fundamental rights of personhood, definitively establishing that individuals do not forfeit their rights because of their sexual orientation. Id. At the very least, Romer and Lawrence strongly suggest that state-approved discrimination based on sexual orientation is now a substantial federal question. Although courts formerly were reluctant to find these developments sufficient to overcome Baker, e.g., Jackson, 884 F.Supp.2d at 1085-86, much has changed in just the last year. In June of 2013, the Supreme Court struck down the federal man-woman definition of marriage because, when applied to legally married same-sex couples, it “demean[ed] the couple, whose moral and sexual choices the Constitution protects.” Windsor, 133 S.Ct. at 2694. In doing so, the Supreme Court affirmed the decision of the United States Court of Appeals for the Second Circuit, which expressly held that Baker *1068did not foreclose review of the federal marriage definition. Windsor v. United States, 699 F.3d 169, 178-80 (2d Cir.2012) (“Even if Baker might have had resonance ... in 1971, it does not today.”). Also last summer, the Supreme Court declined to review a decision invalidating California’s voter-approved man-woman marriage definition. Hollingsworth v. Perry, — U.S. -, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). The Supreme Court dismissed the appeal not because Baker rendered the question insubstantial, but because the law’s supporters lacked standing to defend it after the State of California decided not to. These are doctrinal developments sufficient to overcome the narrow prece-dential effect of a summary dismissal. Since Windsor, no federal court has ruled to the contrary. In fact, every court to consider Baker in the context of a post-Windsor challenge to laws against same-sex marriage has found that doctrinal developments since 1972 provide ample reason to reach the merits. Kitchen v. Herbert, 961 F.Supp.2d 1181, 1194-95 (D.Utah 2013); Bishop v. U.S., 962 F.Supp.2d 1252 (N.D.Okla.2014); Bostic v. Rainey, 970 F.Supp.2d 456, 468-70 (E.D.Va.2014); McGee v. Cole, 993 F.Supp.2d 639, 649-52, 2014 WL 321122 at *8-10 (S.D.W.Va. Jan. 29, 2014); Bourke v. Beshear, 996 F.Supp.2d 542, 2014 WL 556729 (W.D.Ky. Feb. 12, 2014); De Leon v. Perry, 975 F.Supp.2d 632, 646-49 (W.D.Tex.2014); DeBoer v. Snyder, 973 F.Supp.2d 757, 773 n. 6 (E.D.Mich.2014). Consistent with the findings of its sister courts, the Court concludes that Baker is not controlling and does not bar review of Plaintiffs’ claims. B. Due Process The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees fair process and places substantive limits on the States’ authority to constrain individual liberty. Many of our most cherished liberties originate in the Bill of Rights — among them the freedoms of speech, press, and religion; the right to be free from unreasonable searches and seizures; and the right to just compensation when the government takes private property. Initially, the Bill of Rights guarded against only actions by the federal government. But, upon the adoption of the Fourteenth Amendment, a more comprehensive protection came into force: “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive a person of life, liberty, or property, without due process of law; nor deny to any person the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Now, most of the Bill of Rights applies to the states by virtue of the Fourteenth Amendment. See McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 3034-36, 3050, 177 L.Ed.2d 894 (2010) (chronicling “selective incorporation” of the Bill of Rights and incorporating the Second Amendment). The Supreme Court also has recognized that the liberty guaranteed by the Fourteenth Amendment extends beyond the Bill of Rights to “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the State.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). An individual’s protected liberties include certain fundamental rights of personhood. These rights center on the most significant decisions of a lifetime— whom to marry, whether to have children, and how to raise and educate children. Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. *1069These choices are protected because they implicate “associational rights ... ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)). Ordinarily, laws do not offend the Due Process Clause when they are rationally related to a legitimate government interest. Washington v. Glucksberg, 521 U.S. 702, 722, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). But laws that implicate fundamental rights are subject to strict scrutiny, surviving only if narrowly tailored to a compelling government interest. Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). The essential issue for due process purposes is whether Idaho’s Marriage Laws infringe on Plaintiffs’ fundamental rights. The decisions of the United States Supreme Court “confirm that the right to marry is of fundamental importance for all individuals.” Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and women. Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d .1010 (1967). “It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Against this background, Plaintiffs wish to exercise their fundamental right to marry. Defendants acknowledge that the fundamental right to marry exists, but they argue it does not extend to same-sex couples. Rather, Defendants contend Plaintiffs seek recognition of a new fundamental right, the right to same-sex marriage. Defendants appropriately note that the Supreme Court has explicitly cautioned against finding new fundamental rights. “[T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 720-21, 117 S.Ct. 2258 (quotations and citations omitted). A “careful description” of the newly asserted liberty interest also is necessary. Id. at 721, 117 S.Ct. 2258. Moreover, the “Nation’s history, legal traditions, and practices ... provide the crucial guideposts for responsible decisionmaking, that direct and restrain [the Court’s] exposition of the Due Process Clause.” Id. (quotation and citation omitted). The Glucksberg decision is instructive on how the Supreme Court evaluates new fundamental rights. There, the plaintiffs asserted the State of Washington’s ban on causing or aiding another person’s suicide violated a constitutionally protected right to choose the manner of one’s own death. The Supreme Court surveyed the history of the law regarding suicide, concluding “[t]he history of the law’s treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it.” Id. at 728, 117 S.Ct. 2258. Given this largely unbroken tradition, the Court declined to recognize a new constitutionally protected right to suicide or assisted suicide. The Supreme Court then upheld Washington’s assisted suicide ban because the ban rationally related to Washington’s legitimate interest in preserving human life. *1070The restraint exercised in Glucksberg is not warranted here. Although marriage is not mentioned in the Bill of Rights, the Supreme Court has uniformly treated marriage as an established fundamental right. A long line of cases recognize marriage as a fundamental right, variously describing it as a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), of privacy, Griswold, 381 U.S. at 486, 85 S.Ct. 1678, and of association, 519 U.S. at 116, 117 S.Ct. 555. This exalted status among personal rights is based on the recognition that marriage “involv[es] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy. ...” Casey, 505 U.S. at 851, 112 S.Ct. 2791. In fact, Glucksberg cites the right to marry as one of the well-established fundamental rights. 521 U.S. at 720, 117 S.Ct. 2258. Because the right to marry is fundamental, the Supreme Court has repeatedly invalidated laws that infringe upon it. In the pathmarking case of Loving v. Virginia, our Nation’s highest court found unconstitutional a Virginia statute banning interracial marriages. 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Similar to the Idaho Marriage Laws challenged here, Virginia’s anti-miscegenation laws prohibited the issuance of marriage licenses to interracial couples and further forbade attempts to evade the ban by marrying out-of-state. Loving, 388 U.S. at 4-6, 87 S.Ct. 1817. Violation of these Virginia’s law was a criminal offense punishable by imprisonment for up to five years. Id. at 5, 87 S.Ct. 1817. Regardless of the historical precedent for such laws, the Supreme Court made clear that “the freedom to marry or not marry[ ] a person of another race resides with the individual and cannot be infringed by the State.” Id. at 12, 87 S.Ct. 1817. The Supreme Court reaffirmed the fundamental and individual character of the right to marry in Zablocki v. Redhail. There, the Court reviewed a Wisconsin law that required residents to seek court permission to marry if a Wisconsin resident had children not in the resident’s custody. Zablocki, 434 U.S. at 375, 98 S.Ct. 673. Under that law, permission to marry would be granted only if the resident could show full compliance with any child-support obligations and further demonstrate children covered by a support order were “not then and [were] not likely thereafter to become public charges.” Id. (quoting Wis. Stat. § 245.10 (1973)). Despite the State’s interest in child welfare, the Supreme Court invalidated the statute because it “unnecessarily impinge[d] on the right to marry” in a context where Wisconsin had “numerous other means” for advancing its interest. Id. at 388-89, 98 S.Ct. 673. Next, in 1987, the Supreme Court struck down a Missouri prison regulation that restricted inmates’ right to marry. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Under the regulation, an inmate could marry only with approval from the superintendent of prisons, permission that would be granted under “compelling” circumstances such as pregnancy or the birth of an illegitimate child. Id. at 82, 107 S.Ct. 2254. While prisoners are subject to a variety of restrictions on their constitutional liberties, the Court found that “[m]any important attributes of marriage remain, however, after taking into account the limitations imposed by prison life.” Id. at 95, 107 S.Ct. 2254. Recognizing the emotional, public, and spiritual significance of marriage, as well as the many government benefits that flow from marital status, the Court struck down the prison regulation. According to the Supreme Court, “these incidents of marriage, like the religious and personal as*1071pects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate penological objectives.” Id. at 95-96, 107 S.Ct. 2254. More recently, the Supreme Court confirmed that gay and lesbian individuals do not forfeit their constitutional liberties simply because of their sexual orientation. Lawrence, 539 U.S. 558, 123 S.Ct. 2472. The Court observed that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” Id. at 574, 123 S.Ct. 2472. Emphasizing that these are personal rights, the Court concluded “[pjersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id. (emphasis added). And, less than one year ago, the Supreme Court struck down the federal Defense of Marriage Act’s man-woman definition of marriage because it amounted to unconstitutional “interference with the equal dignity of same-sex marriages” recognized by some states. Windsor, 133 S.Ct. at 2693. The message of these cases is unmistakable — all individuals have a fundamental right to marry. Defendants argue these cases do not apply here because the Supreme Court has recognized a fundamental right to only heterosexual marriage. Relying on Glucksberg, the Defendants characterize this case as one involving the “right to same-sex marriage,” a right lacking both historical precedent and constitutional protection. Defendants’ argument suffers from three critical flaws. This “new right” argument attempts to narrowly parse a right that the Supreme Court has framed in remarkably broad terms. Loving was no more about the “right to interracial marriage” than Turner was about the “prisoner’s right to marry” or Zablocki was about the “dead-beat dad’s right to marry.” Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case. While Glucksberg demands that new rights be carefully described and deeply rooted, the cases above demonstrate that the Supreme Court has long recognized an unembellished right to marry. On the other hand, the holding in Glucksberg followed directly from the unbroken pattern of state laws and legal traditions disapproving suicide and assisted suicide. 521 U.S. at 710-11, 117 S.Ct. 2258 (“Indeed, opposition to and condemnation of suicide — and, therefore, assisting suicide — are consistent and enduring themes of our philosophical, legal, and cultural heritages.”). Given that context, it was a truly novel proposition to say that the concept of “liberty” substantively protects a person’s freedom to end his or her life. Finding the policy of condemning and discouraging suicide both deeply rooted and nearly universal in contemporary society, the Court declined to recognize a new fundamental right. Id. at 728, 117 S.Ct. 2258. The context here is dramatically different. Far from a uniform pattern of laws rejecting the practice, a fast-growing number of states now recognize that same-sex and opposite-sex marriages are equal. And, while Glucksberg makes much of the consistent legal, medical, and social policies against suicide, the Court is not aware of a similarly pervasive policy against marriage. To the contrary, the Defendants make abundantly clear that marriage is a life-affirming institution — something to be encouraged because it provides stability not only for couples, but also for children. Finally, and most critically, the Supreme Court’s marriage cases demonstrate that the right to marry is an individual right, *1072belonging to all. See Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. If every individual enjoys a constitutional right to marry, what is the substance of that right for gay or lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State.9 Defendants offer no other answer. In their effort to avoid the question, Defendants commit the same analytical mistake as the majority in Bowers v. Hardwick, the decision that declined to “announce a fundamental right to engage in homosexual sodomy.” 478 U.S. 186, 191, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence, 539 U.S. at 577, 123 S.Ct. 2472. The crucial mistake in Bowers was that the majority narrowed and thus “fail[ed] to appreciate the extent of the liberty at stake.” Lawrence, 539 U.S. at 567, 123 S.Ct. 2472. For that reason, the Supreme Court in Lawrence concluded “Bowers was not correct when it was decided, and it is not correct today.” Id. at 577, 123 S.Ct. 2472. Lawrence instructs not only that gay and lesbian individuals enjoy the same fundamental rights to make intimate personal choices as heterosexual individuals enjoy, but that judicial attempts to parse those rights out of existence will be met with a harsh rebuke. The Supreme Court’s marriage cases recognize an individual’s fundamental right to marry. The right transcends one’s race, confinement to prison, or ability to support children. Lawrence unequivocally cements marriage as among the constitutionally protected liberties shared by homosexual and heterosexual persons alike. The teaching of these cases is that the fundamental right to marry cannot be narrowed in the manner Defendants urge. Idaho’s Marriage Laws render the Plaintiff couples legal strangers, stripping them of the choice to marry or remain married in the state they call home. Therefore, Idaho’s Marriage Laws impermissibly infringe on Plaintiffs’ fundamental right to marry.10 C. Equal Protection Plaintiffs also claim Idaho’s Marriage Laws violate the Equal Protection Clause of the Fourteenth Amendment. That clause “commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting U.S. Const., amend. XIV., § 1). The equal protection guarantee is in tension with the reality that laws almost inevitably draw lines between groups of people, advantaging some and disadvantaging others. Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). The Supreme Court has developed tiers of judicial scrutiny in an effort to reconcile this *1073practical reality with the constitutional principle. The level of scrutiny depends on the characteristics of the disadvantaged group or the rights implicated by the classification. A law that neither targets a suspect class nor burdens a fundamental right is subject to rational basis scrutiny. Heller v. Doe, 509 U.S. 312, 319-21, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The Court in such cases presumes the law is valid unless the challenger can show the difference in treatment bears no rational relation to a conceivable government interest. Id. “A classification does not fail rational-basis review because it ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Id. at 321, 113 S.Ct. 2637 (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)). But, even under this most deferential standard, the “State may not rely on a classification whose relationship to the asserted goal is so attenuated as to render the decision arbitrary or irrational.” Cleburne, 473 U.S. at 446, 105 S.Ct. 3249. For this reason, courts “insist on knowing the relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632, 116 S.Ct. 1620; see also Heller, 509 U.S. at 321, 113 S.Ct. 2637 (explaining the classification must “find some footing in the realities of the subject addressed by the legislation”). Strict scrutiny lies at the other end of the spectrum. This level of scrutiny applies when a legislative classification “impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.” Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). Such classifications are presumed unconstitutional and will survive strict scrutiny only when the government can show the law is narrowly tailored to a compelling governmental interest. See Zablocki, 434 U.S. at 388, 98 S.Ct. 673. “Between the extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy.” Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). These classifications are considered “quasi-suspect,” and survive heightened constitutional scrutiny only if the State shows the classification is “substantially related to an important governmental objective.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). Discrimination against a quasi-suspect class, such as women, must be supported by an “exceedingly persuasive justification” and “not hypothesized or invented post hoc in response to litigation.” United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). The purpose of this heightened level of scrutiny is to ensure quasi-suspect classifications do not perpetuate unfounded stereotypes or second-class treatment. Id. at 534, 116 S.Ct. 2264. The Court’s principal tasks here are to determine the form of discrimination at issue and next identify and apply the appropriate level of scrutiny. 1. Form of Discrimination Plaintiffs argue that Idaho’s Marriage Laws discriminate against individuals on the basis of sex and sexual orientation. The Defendants counter that Idaho’s Marriage Laws do not prefer one sex over the other, nor do they target gay and lesbian persons. A person’s gender and sexual orientation are two sides of the same coin. As one court aptly observed, “sex and *1074sexual orientation are necessarily interrelated, as an individual’s choice of romantic or intimate partner based on sex is a large part of what defines an individual’s sexual orientation.” Perry v. Schwarzenegger, 704 F.Supp.2d 921, 996 (N.D.Cal.2010). However, the Supreme Court has not equated sexual orientation discrimination and sex discrimination despite several opportunities to do so. See Romer, 517 U.S. at 635, 116 S.Ct. 1620 (“We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.”); Lawrence, 539 U.S. at 583, 123 S.Ct. 2472 (O’Connor, J., concurring) (“[T]he conduct targeted by this law is conduct that is closely correlated with being homosexual.”); Windsor, 133 S.Ct. at 2695 (“The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State.”). Considering the Supreme Court’s treatment of this issue, this Court finds that sex discrimination and sexual orientation discrimination are “distinct phenomena.” In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 439 (2008); see also Bishop v. U.S., 962 F.Supp.2d 1252 (N.D.Okla.2014) (“Common sense dictates that the intentional discrimination occurring in this case has nothing to do with gender-based prejudice or stereotypes, and the law cannot be subject to heightened scrutiny on that basis.”). Idaho’s Marriage Laws allow heterosexuals, but not homosexuals, to marry and thus clearly discriminate on the basis of sexual orientation. This distinction does not prefer one gender over the other — two men have no more right to marry under Idaho law than two women. In other words, Idaho’s Marriage Laws are facially gender neutral and there is no evidence that they were motivated by a gender discriminatory purpose. See In re Kandu, 315 B.R. 123, 143 (Bankr.W.D.Wash.2004) (“The test to evaluate whether a facially gender-neutral statute discriminates on the basis of sex is whether the law can be traced to a discriminatory purpose.”) (internal quotations omitted). 2. Level of Scrutiny Plaintiffs advance two reasons for applying heightened scrutiny to Idaho’s Marriage Laws. First, they argue sexual orientation is subject to heightened scrutiny under recent precedent of the United States Court of Appeals for the Ninth Circuit. Second, they claim that classifications based on sexual orientation are constitutionally suspect. a. Ninth Circuit Precedent Plaintiffs first argue that heightened scrutiny applies to sexual orientation discrimination by virtue of the Ninth Circuit’s recent decision in SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 484 (9th Cir.2014). The Defendants claim SmithKline is distinguishable on its facts. The State and Recorder Rich argue SmithKline is a case about discriminatory jury selection and, as such, its holding is limited to cases involving intentional sexual orientation discrimination based on stereotypes. In a similar vein, Governor Otter claims SmithKline is inapplicable because Idaho’s Marriage Laws are not motivated by animus toward homosexuals. Defendants misread the case. SmithKline involved a constitutional challenge to a preemptory strike of a prospective juror during jury selection for a trial between two pharmaceutical companies, SmithKline Beecham and Abbott Laboratories. The parties’ dispute centered on the pricing of HIV medications, which is “a subject of considerable controversy in the gay community.” Id. at 474. *1075During the jury selection process, Juror B was the only self-identified gay member of the jury pool. Immediately after Abbott exercised its first peremptory strike against Juror B, SmithKline’s counsel raised a Batson challenge that the trial judge denied.11 The Ninth Circuit concluded that Abbott’s challenge amounted to purposeful sexual orientation discrimination before answering the dispositive question: Whether classifications based on sexual orientation are subject to heightened scrutiny. To answer this question, the Ninth Circuit looked to the Supreme Court’s equal protection analysis in Windsor. Although Windsor does not announce the level of scrutiny, the SmithKline court considered what the Supreme Court “actually did” and determined the Supreme Court’s analysis was inconsistent with pure rational basis review. Id. at 481. SmithKline’s, examination of Windsor is authoritative and binding upon this Court. According to SmithKline, Windsor’s constitutional analysis exhibits none of the hallmarks of rational basis review. First, the Supreme Court ignored the hypothetical justifications for the Defense of Marriage Act and instead carefully considered the law’s actual purpose. Id. at 481-82 (citing Windsor, 133 S.Ct. at 2693-94). Second, “the critical part of Windsor begins by demanding that Congress’s purpose ‘justify disparate treatment of the group.’ ” Id. at 482 (quoting Windsor, 133 S.Ct. at 2693). Wholly inconsistent with rational basis review, this demand neither defers to legislative choices nor presumes a law is constitutional. Compare Williamson v. Lee Optical, 348 U.S. 483, 487, 75 S.Ct. 461, 99 L.Ed. 563 (1955) (“[I]t is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.”) with Windsor, 133 S.Ct. at 2696 (“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”). Concluding its analysis, the Ninth Circuit held that “Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status.” SmithKline, 740 F.3d at 483. This holding is unqualified and logically preceded the court’s analysis of the Batson challenge. Indeed, the Batson analysis otherwise would have been foreclosed because the Ninth Circuit’s pre-Windsor equal protection precedent held that sexual orientation discrimination is subject to rational basis review. See High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir.1990), abrogation recognized by SmithKline, 740 F.3d at 483. Reexamining its precedent in light of Windsor, the SmithKline court found that “earlier cases applying rational basis review to classifications based on sexual orientation cannot be reconciled with Windsor.” 740 F.3d at 483. Only after the Ninth Circuit found Juror B belonged to a *1076group subject to heightened scrutiny did it then proceed with its Batson analysis. In this Court’s view, SmithKline establishes a broadly applicable equal protection principle that is not limited to the jury selection context. Also, contrary to Defendants’ contentions, SmithKline does not limit the application of heightened scrutiny to instances of proven animus or irrational stereotyping. SmithKline addresses purposeful discrimination and the perpetuation of impermissible stereotypes, but it does so in the context of the Batson analysis — not in the discussion about Windsor. Id. at 484-86. With respect to Windsor, the court’s holding is undeniably broad: “Windsor’s heightened scrutiny applies to classifications based on sexual orientation.” Id. at 483. Had the Ninth Circuit intended to limit its holding to cases involving animus or irrational stereotyping, it easily could have done so. Instead, it found Windsor to be “dispositive of the question of the appropriate level of scrutiny in this case,” a case that fits into the broader category of “classifications based on sexual orientation.” Id. at 480. Just as the Ninth Circuit was “bound by [Windsor’s] controlling, higher authority” when deciding SmithKline, this Court is bound to apply Windsor’s heightened scrutiny to Idaho’s Marriage Laws.12 b. Suspect class Apart from SmithKline, Plaintiffs also contend Idaho’s Marriage Laws are subject to heightened scrutiny because classifications based on sexual orientation are constitutionally suspect. The Court need not dissect this argument because the Supreme Court has accepted it by implication. If homosexuals are not a suspect or quasi-suspect class, the Supreme Court would have applied rational basis scrutiny in Windsor. But, as recognized in Smith-Kline, the Supreme Court applied heightened scrutiny. Indeed, the Supreme Court affirmed the Second Circuit without questioning (or even discussing) the lower court’s express holding: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group .with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority. Windsor v. United States, 699 F.3d 169, 181-82 (2d Cir.2012), aff'd United States v. Windsor, — U.S. -, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). The Second Circuit’s holding was both approved and essential to the scrutiny the Supreme Court applied in Windsor. Had the Supreme Court disagreed with the Second Circuit, it would not have applied heightened scrutiny. It is not necessary to repeat the Second Circuit’s analysis, for that analysis is implicit in both Windsor and Smith-Kline. D. Idaho’s Marriage Laws Fail Constitutional Scrutiny Because Idaho’s Marriage Laws imper-missibly infringe on Plaintiffs’ fundamental right to marry, the Laws are subject to strict due process and equal protection scrutiny. But SmithKline directs the Court to apply heightened equal protection scrutiny to laws that discriminate on the *1077basis of sexual orientation. Idaho’s Marriage Laws do not withstand this heightened scrutiny. At a minimum, the Court must examine Idaho’s Marriage Laws “and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status.” SmithKline, 740 F.3d at 483. Based on Windsor, and as explained in SmithMine, four principles guide the Court’s equal protection analysis. The Court (1) looks to the Defendants to justify Idaho’s Marriage Laws, (2) must consider the Laws’ actual purposes, (3) need not accept hypothetical, post hoc justifications for the Laws, and (4) must decide whether the Defendants’ proffered justifications overcome the injury and indignity inflicted on Plaintiffs and others like them. See id. at 481-83. These principles most closely correspond to the intermediate scrutiny test applied to quasi-suspect classifications based on gender and illegitimacy. See Windsor v. United States, 699 F.3d 169, 185-88 (2d Cir.2012) (applying intermediate scrutiny). In those cases “the burden of justification is demanding and it rests entirely on the State.” United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). While intermediate scrutiny permits classifications designed to remedy economic injuries or promote equality, the test focuses on “differential treatment” and “denial of opportunity” to ensure that discriminatory laws do not “create or perpetuate the legal, social, and economic inferiority” of the affected class. Id. at 533-34, 116 S.Ct. 2264. 1. The Actual Purpose of Idaho’s Marriage Laws The Court begins its inquiry into the actual purpose of Idaho’s Marriage Laws by examining their text. See Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 926 (9th Cir.2004). “The plain meaning of legislation should be conclusive, except in the rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). The meaning of Idaho’s Marriage Laws could not be plainer. The only recognized domestic legal union in Idaho is a “marriage between a man and a woman.” Idaho Const. Art. Ill, § 28. A marriage can be licensed and solemnized only if it is “a civil contract between a man and a woman.... ” Idaho Code § 32-201. All marriages contracted outside of Idaho are valid in Idaho except marriages that violate Idaho’s public policy. Id. § 32-209. The statutory list of marriages that violate Idaho’s public policy is nonexclusive, but it specifically identifies only two categories — “same-sex marriages, and marriages entered into ... with the intent to evade the prohibitions of’ Idaho’s Marriage Laws. Id. The parties do not cite, and the Court does not find, a published Idaho case holding that anything other than same-sex marriage violates the public policy set forth in Idaho Code § 32-209. Each of these laws unambiguously expresses a singular purpose — to exclude same-sex couples from civil marriage in Idaho. The Laws’ legislative history makes their exclusionary purpose even clearer. Idaho Code Sections 32-201 and 32-209 were both amended in the mid-1990’s, at a time when no state recognized same-sex marriage. In 1993, however, the Hawaii Supreme Court became the first court in the country to strike down a statutory same-sex marriage ban. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 61 (1993) (remanding for consideration of justifications *1078for the ban). After Baehr, over half of the states passed laws prohibiting same-sex marriage. See Bourke v. Beshear, 996 F.Supp.2d 542, 543-45 n. 1, 2014 WL 556729, at *1 n. 1 (W.D.Ken. Feb. 12, 2014) (listing laws). In addition, the United States Congress reacted in 1996 by passing the Defense of Marriage Act — the law found partially unconstitutional in Windsor. The present versions of Sections 32-201 and 32-209 also took effect in 1996. The Idaho Legislature amended § 32-201 in 1995 to add, among other language, the words “between a man and a woman.” 1995 Idaho Sess. Laws, ch. 104, § 3. In addition to this definitional change, the 1995 amendment abolished common law marriage. Id. §§ 3-5. Indeed, abolition of common law marriage appears to be the amendment’s primary purpose, as its legislative history does not include a single direct reference to the “between a man and a woman” provision. The Compiler’s Notes for the 1995 amendment do, however, include the following: It is the intent of this act to promote the stability and best interests of marriage and the family. Marriage is the institution that is the foundation of the family and of society. Its stability is basic to morality and civilization and of vital interest to society and the state. Common-law marriages entered into in this state on and after January 1, 1996, will no longer be recognized. 1995 Idaho Sess. Laws, ch. 104, § 1. The stated intent and apparent purpose of the amendment to Idaho Code § 32-201 was to promote family stability, morality, and a traditional view of the marriage institution. Section 32-201’s man-woman marriage definition took effect on January 1, 1996. A few months later, the Idaho Legislature amended § 32-209 to include a public policy against same-sex and evasive marriages. 1996 Idaho Sess. Laws, Ch. 331, § 1. From Idaho’s territorial days until the amendment’s approval in 1996, Idaho law codified the long-established “place of celebration rule,” whereby “[a]ll marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, are valid in this state.” Idaho Code Ann. § 32-209 (1983); see also Hilton v. Stewart, 15 Idaho 150, 96 P. 579, 583 (1908) (“This statute merely announces the general rule of law, as we understand it, that any contract which is a valid marriage according to the law of the place where the contract is made is valid everywhere.”). But in 1996, the Legislature ended Idaho’s tradition of comity toward out-of-state marriages. At the time, Speaker of the House Simpson voiced his concern that Hawaii might recognize same-sex marriages and leave Idaho with no choice but to reinforce its current policy or recognize same-sex marriage by default. Relating to Recognition of Foreign Marriages: Minutes for Feb. 15, 1996 Meeting onH.B. 658 Before the H. Judiciary, Rules, & Admin. Comm., 53d Legis. Sess., 2d Reg. Sess. 2 (Idaho 1996). According to Representative William Sali, there was no time to delay or study the matter because Hawaii would dictate Idaho’s marriage policy if the Legislature did not act. Id. Despite opposition from religious leaders, civil liberties advocates, and both homosexual and heterosexual citizens, the bill easily passed the House and Senate before arriving on Governor Batt’s desk. With the Governor’s signature, the law took immediate effect on March 18, 1996. This swift transition from bill to governing law was due to a legislative declaration of emergency that accompanied the substantive changes to § 32-209. 1996 Idaho Sess. Laws, Ch. 331, § 2. The Legislature’s sense of urgency was vindicated when, later that year, a Hawaii trial court *1079rejected every proffered justification for Hawaii’s same-sex marriage ban and enjoined Hawaii from denying marriage license applications solely because of the applicants’ sexual orientation. Baehr v. Miike, 1996 WL 694235 (Haw.Cir.Ct. Dec. 3, 1996), superseded by statute, Haw.Rev. Stat. § 572-1 (1998). Thus, the purpose of the 1996 amendment to Idaho Code § 32-209 was to buttress Idaho’s traditional definition of marriage against changes in other states’ marriage laws. By 2003, the highest courts in Vermont and Massachusetts had ruled that their respective state constitutions precluded the denial of marriage benefits on the basis of sexual orientation. Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999); Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003). These developments again prompted legislative reactions across the country. This time, however, the Idaho Legislature sought to place on the ballot a proposed amendment to the Idaho Constitution that would prevent an Idaho court from reaching a result similar to those in Vermont and Massachusetts. Efforts to do so in 2004 and 2005 failed to garner the necessary two-thirds majority in the Idaho Senate. But, in 2006, a third measure was introduced in the House, debated, and this time passed both chambers. H.R.J. Res. 2, 58th Leg., 2d Reg. Sess. (Idaho 2006). The legislative approval allowed the following question to appear on the November 2006 general election ballot: Shall Article III, of the Constitution of the State of Idaho be amended by the addition of a new Section 28, to provide that a marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state? (Dkt. 57-8 at 2.) The public debate over the proposal, which became known as Amendment 2, centered on tradition, family, and equality. See generally (Dkt. 57-4; Dkt. 57-7 at 6-16, 18-20, 35; Dkt. 57-8 at 5, 42-128.) Supporters of the amendment argued that traditional marriage between a man and a woman formed a foundation for stable and nurturing families. Both sides debated the relative quality of opposite-sex versus same-sex parenting. Those opposed to the amendment emphasized that same-sex couples could be just as loving and committed to each other and their children as opposite-sex couples. Some framed the debate in explicitly religious terms, but faith leaders spoke out on both sides. Others characterized the matter as a secular issue, often citing the need for equality among citizens. On November 7, 2006, Idaho’s electorate took to the ballot box, and 63.3% voted in favor of Amendment 2. (Dkt. 57-8 at 8.) The amendment immunized Idaho’s man-woman marriage definition from attack in the State’s courts or legislative bodies. As a result, nothing short of a successful federal constitutional challenge or a superseding amendment to Idaho’s Constitution would be sufficient to change Idaho’s Marriage Laws. Because over 280,000 Idahoans voted for Amendment 2, it is not feasible for the Court to infer a particular purpose or intent for the provision. But, as Plaintiffs argue, it is obvious that Idaho’s Marriage Laws purposefully discriminate on the basis of sexual orientation. Suggesting that the laws’ discriminatory effects are merely incidental, Defendants characterize them as efforts to preserve Idaho’s traditional civil marriage institution. “But ‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 601, 123 S.Ct. 2472 (Scalia, J., dissenting). Al*1080though the Court finds Idaho’s Marriage Laws were motivated, in part, by important governmental interests, their history demonstrates that moral disapproval of homosexuality was an underlying, animating factor. As with DOMA, the “practical effect” of Idaho’s Marriage Laws is “to impose a disadvantage, a separate status, and so a stigma” on a class of people based solely on their sexual orientation. Windsor, 133 S.Ct. at 2693. The question now is whether any of the Defendants’ asserted justifications overcome the inequality imposed upon Plaintiffs and others like them. 2. Asserted Justiñcations for Idaho’s Marriage Laws All Defendants assert that Idaho’s Marriage Laws relate to the State’s interest in maximizing child welfare but differ on how the means — denying marital status to same-sex couples — serve this child-welfare end. Governor Otter primarily contends the definition fosters a traditional, child-centric marriage culture and otherwise promotes optimal family structures. The State and Recorder Rich claim the definition allows Idaho to channel its limited fiscal resources toward naturally procreative relationships. Aside from child welfare, the Governor and amicus curiae Cornerstone Family Council of Idaho assert Idaho’s Marriage Laws serve additional, important interests. They maintain that the Laws further the State’s interest in federalism. Governor Otter also claims Idaho’s Marriage Laws serve the State’s interests in accommodating religious freedom, avoiding civic strife, and affirming democratic consensus. The Court addresses each asserted justification below. a. Child Welfare Governor Otter contends that Idaho’s Marriage Laws advance the State’s interest in protecting children. Children are indeed both vulnerable and essential to the perpetuation of society. And, although the Court agrees that the State has a compelling interest in maximizing child welfare, the link between the interest in protecting children and Idaho’s Marriage Laws is so attenuated that it is not rational, let alone exceedingly persuasive. Governor Otter observes that man-woman marriage is an ancient and traditional “child-centered institution, one focused first and foremost on the welfare of children rather than the emotional interests of adults.”13 (Dkt. 57-2 at 10.) The Governor emphasizes this “conjugal” view of marriage encourages “parents to routinely sacrifice their own interests to the legitimate needs and interests of their children.” (Id.) And, the Governor asserts, Idaho’s Marriage Laws reinforce this traditional, child-centric norm by offering marital status only to couples with the natural capacity to procreate. The Governor claims that recognizing same-sex marriages would radically redefine the institution by imposing a “consent-based” marriage regime. Without the *1081normative guidance of traditional marriage, the Governor fears that the social institution of marriage will erode. This deinstitutionalization of marriage could cause parents to turn away from the self-sacrifice that, the Governor asserts, is a hallmark of Idaho’s traditional, child-centric regime. The Governor also claims that Idaho’s Marriage Laws further the State’s interest in child-welfare by promoting optimal family structures. Citing to volumes of sociological studies, the Governor advances the general proposition that two parents in a low-conflict marriage constitute the optimal child-rearing environment. See generally (Dkt. 57-8 at 108-128; 57-9 through 57-11 at 150.) Plaintiffs do not dispute this general conclusion. (Lamb Dec., Dkt. 47 ¶¶ 17-20.) But the Governor further argues that children uniquely benefit from parental gender “complementarity” — that is, parenting by parents of the opposite sex. (Dkt. 90 at 3.) Plaintiffs counter by emphasizing the broad consensus among sociological experts that gender of the two parents makes no difference for a child’s well-being. (Lamb Dec., Dkt. 47 ¶¶32-36.) Thus, the parties fundamentally disagree on whether same-sex parenting negatively affects a child’s well-being.14 The best that can be said for Defendants’ position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents. (Id. ¶¶ 35-41.) But the Court need not — even if it could at the summary judgment stage — resolve this sociological debate. The parties’ debate over the scientific literature distracts from the essential inquiry into the logical link between child welfare and Idaho’s wholesale prohibition of same-sex marriage. That link is faulty for at least four reasons. First, civil marriage in Idaho is and has long been a designedly consent-based institution. The law speaks of marriage as a “civil contract ... to which the consent of parties capable of making it is necessary.” Idaho Code 32-201. True, “throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.” Windsor, 133 S.Ct. at 2718 (Alito, J., dissenting). But Idaho law is wholly indifferent to whether a heterosexual couple wants to marry because they share this vision or simply seek a tax break. That such a crass objective would be sufficient to obtain a marriage license does not mean marriage is a cheap convenience. Instead, it means that the value of marriage derives from a place beyond the law’s reach. Important as the child-centered vision of marriage is, Idaho’s consent-based marriage regime does not require heterosexual couples to accept or follow this norm. Whatever the beliefs or intentions of the parties, there is nothing conjugal or child-centric about the formality of obtaining a marriage license. The Governor offers only conjecture to support his critical point — that allowing Plaintiffs or people like them to marry risks vitiating the child-centered norm. There is no evidence that allowing same-sex marriages will have any effect on when, how, or why opposite-sex couples choose to marry. Second, Idaho does not condition marriage licenses or marital benefits on het*1082erosexual couples’ ability or desire to have children. No heterosexual couple would be denied the right to marry for failure to demonstrate the intent to procreate. Indeed, as the State and Recorder Rich observe, “[attempting to restrict civil marriage to couples who intend to have children would demand governmental inquiry into sensitive matters of personal privacy and raise insuperable, or at a minimum very significant, privacy-based constitutional concerns.” (Dkt. 73 at 17.) To claim that civil marriage is somehow tied to a governmental interest in procreation is to “threaten the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating.” Bostic v. Rainey, 970 F.Supp.2d 456, 478-79 (E.D.Va.2014). Third, Idaho does not withhold marriage licenses from heterosexual couples who might be, or are, non-optimal parents. Under Idaho law, everyone from multiple divorcees, “dead-beat dads,” see Zablocki, 434 U.S. 374, 98 S.Ct. 673, to prison inmates, see Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), may marry, as long as they marry someone of the opposite sex. Yet Plaintiffs — six of whom have children or stepchildren — are deemed unworthy of marital benefits because they might be less fit parents according to an inconclusive body of scientific literature. To the extent this amounts to a presumption of parental unfitness, it bears emphasis that a similar presumption was found unconstitutional over 40 years ago. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (holding due process entitles unwed fathers to a hearing before they could be deemed unfit parents). Constitutionality aside, “sexual orientation [is] wholly irrelevant” to whether a person can adopt children in Idaho. In re Adoption of Doe, 156 Idaho 345, 326 P.3d 347, 353, 2014 WL 527144, at *6 (Idaho February 10, 2014). In a state where the privilege of becoming a child’s adoptive parent does not hinge on a person’s sexual orientation, it is impossible to fathom how hypothetical concerns about the same person’s parental fitness possibly could relate to civil marriage. Finally, and most importantly, the Governor’s child welfare rationales disregard the welfare of children with same-sex parents. It is undisputed that “poverty and social isolation [are] associated with maladjustment [in children], and adequate resources support[ ] healthy adjustment.” (Lamb Dec., Dkt. 47 ¶ 18.c.) It is also clear that “[m]arriage can yield important benefits for children and families, including state and federal legal protections, economic resources, family stability, and social legitimacy. These benefits are equally advantageous for children and adolescents in families headed by same-sex and different-sex couples.” (Id. ¶ 48.) Although the State and Recorder Rich dismiss same-sex households as “statistically insignificant,” (Dkt. 73 at 12 n. 3), no Defendant suggests that the State’s child welfare interest does not extend to the children in these households. In this most glaring regard, Idaho’s Marriage Laws fail to advance the State’s interest because they withhold legal, financial, and social benefits from the very group they purportedly protect — children. As Justice Kennedy observed, a law that withdraws these benefits “humiliates ... children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, 133 S.Ct. at 2694. Failing to shield Idaho’s children in any rational way, Idaho’s Marriage Laws fall *1083on the sword they wield against same-sex couples and their families, b. Focusing Governmental Resources on Couples with Biological Procreative Capacity The State and Recorder Rich articulate a somewhat different link between child welfare and Idaho’s prohibition of same-sex marriage. They propose that Idaho’s interest in child welfare is served by directing the State’s limited resources to opposite-sex couples. The State is justified in reserving marital benefits for these couples, the argument continues, because only they have the natural ability to procreate. Pointing to the public costs of divorce, single parenting, and tax breaks for married couples, Recorder Rich and the State argue that the State can avoid some of these costs by not allowing same-sex couples to marry. Even in rational basis cases, the Supreme Court has rejected the argument that cost-cutting is a sufficient reason for denying benefits to a discrete group. Plyler v. Doe, 457 U.S. 202, 229, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (invalidating a Texas statute that denied free public education to children of undocumented immigrants). When Arizona threatened to deny health care benefits to the same-sex domestic partners of state employees, the Ninth Circuit affirmed the district court’s rejection of the Arizona’s cost-saving rationale. Diaz v. Brewer, 656 F.3d 1008, 1013 (9th Cir.2011). In both cases, the chief constitutional problem was that the states’ attempts to cut costs fell on an arbitrarily selected group. Because heightened scrutiny applies here, the Court must focus on the Laws’ actual purposes. The Court finds that defending the State’s fiscal resources is not an actual purpose of any law challenged in this case. Aside from the cost of putting Amendment 2 on the ballot, (Dkt. 57-7 at 3), the record indicates that the only public costs referenced during the debate over the measure were the cost of defending it in litigation, (Dkt. 57-8 at 5), and the cost of driving businesses away from Idaho with a State-approved message of intolerance. (Id. at 74.) Even assuming cost-cutting was an actual purpose for Idaho’s Marriage Laws, the State and Rich do not explain how avoiding the public cost of same-sex marriages improves child welfare. The Laws do not create new benefits for naturally procreative couples; instead, they arbitrarily withhold benefits from a “statistically insignificant” class of households with children. (Dkt. 73 at 12 n. 3.) There is no showing that forbidding same-sex marriages makes naturally procreative couples more likely to marry, let alone stay married. Nor is there any evidence that the State has any compunction about expending its limited resources on non-procreative or unstable heterosexual marriages. Defendants’ only explanation is that a law “does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (internal quotation omitted). While this may be the case when a court reviews economic legislation under the rational basis standard, e.g., U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980), more precision is necessary where, as here, the law discriminates on the basis of sexual orientation. See SmithKline, 740 F.3d at 481-82. If Idaho’s Marriage Laws seek to improve child welfare by focusing limited public resources on heterosexual marriages, they do so in a patently arbitrary manner. They are at once grossly overinclusive — by expending the State’s limited resources on *1084unstable marriages and married couples with no intent or ability to procreate — and dramatically underinclusive — by denying those resources to children whose parents happen to be homosexual. The burden of this imprecision falls on families that seek the same stability that Idaho claims to incentivize. This is not fiscal prudence; it is a State-endorsed message of unworthiness that does not withstand constitutional scrutiny. c. Federalism Governor Otter and amicus curiae Cornerstone Family Council of Idaho claim that federalism principles require the Court to uphold the State’s traditional authority to define marriage. Defendants also make two more specific state’s rights arguments. In particular, Governor Otter claims that Idaho’s policy against recognizing out-of-state same-sex marriages must be accepted under the well-established public policy exception to the Full Faith and Credit Clause. See Nevada v. Hall, 440 U.S. 410, 422, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979). Defendants also claim that Section 2 of the federal Defense of Marriage Act, codified at 28 U.S.C. § 1738C, authorizes Idaho to refuse recognition of same-sex marriages. All of these arguments fail to consider that “neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment.” Saenz v. Roe, 526 U.S. 489, 508, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). It is true federalism favors preserving a state’s right to choose policies uniquely suited to the preferences of its citizens. By creating a system with both state and federal governments, the “Framers [of the Constitution] thus ensured that powers which ‘in the ordinary course of affairs, concern the lives, liberties, and properties of the people’ were held by governments more local and more accountable than a distant bureaucracy.” Nat’l Fed’n of Indep. Bus. v. Sebelius, — U.S. -, 132 S.Ct. 2566, 2578, 183 L.Ed.2d 450 (2012) (quoting The Federalist No. 45, at 293 (J. Madison)). Thus, “a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandéis, J., dissenting). Windsor upheld this principle by invalidating the federal man-woman marriage definition, in part, because of its “unusual deviation” from the federal government’s usual deference to state domestic relations laws. 133 S.Ct. at 2693. However, “States are not the sole intended beneficiaries of federalism.” Bond v. United States, — U.S. -, 131 S.Ct. 2355, 2364, 180 L.Ed.2d 269 (2011). Federalism has another dimension, one that “secures to citizens the liberties that derive from the diffusion of sovereign power.” Coleman v. Thompson, 501 U.S. 722, 759, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (Blackmun, J., dissenting). Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. Bond, 131 S.Ct. at 2364 (citation omitted). Federalism is not just a bulwark against federal government overreach; it is also an essential check on state power. For that reason, “federalism” is no answer where, as here, individuals claim their state government has trampled their constitutional rights. Indeed, Windsor *1085also recognizes the transcendent quality of individual constitutional rights, even when those rights conflict with a state’s traditional sovereign authority. “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving....” Windsor, 133 S.Ct. at 2691 (emphasis added). As other courts have recognized, Windsor’s citation to Loving for this proposition “is a disclaimer of enormous proportions.” Bishop v. U.S., 962 F.Supp.2d 1252, 1279 (N.D.Okla.2014). In Loving, Virginia’s sovereign authority over marital relations could not save the State’s anti-miscegenation laws. And, just as in Loving, Idaho’s right to regulate domestic relations is subject to the paramount rights of its citizens. That is the way of our federal system, d. Accommodating Religious Freedom, Avoiding Civic Strife, and Assuring Social Consensus Finally, Governor Otter argues that Idaho’s Marriage Laws should be upheld because they serve the related goals of supporting religious liberty, avoiding the potential for religion-centered conflicts, and affirming a prevailing social consensus on marriage. Analogizing to the Supreme Court’s days-old decision in Schuette v. BAMN, — U.S. -, 134 S.Ct. 1623, 188 L.Ed.2d 613 (2014), the Governor argues that “a state’s voters can ban preferences” and that courts should “let[ ] the people make difficult policy choices through democratic means.” (Dkt. 93 at 2.) Yet the Governor acknowledges, as he must, this “is not to say the State can invoke concerns about religious freedom or religion-related social strife as a basis for denying rights otherwise guaranteed by the Constitution.” (Dkt. 57-2 at 53.) The Governor’s argument concerning religious liberty is myopic. No doubt many faiths around the world and in Idaho have longstanding traditions of man-woman marriage rooted in scripture. But not all religions share the view that opposite-sex marriage is a theological imperative. In fact, some of the Plaintiffs actively worship in faiths that recognize and support their unions. (S. Watsen Dec. ¶ 13, Dkt. 51.) To the extent Governor Otter argues that Idaho has a legitimate interest in validating a particular religious view of marriage, that argument blithely disregards the religious liberty of congregations active in Idaho. “By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.” Kitchen v. Herbert, 961 F.Supp.2d 1181, 1214 (D.Utah 2013). Likewise, a desire to protect or maintain a particular social consensus does not withstand constitutional scrutiny. “A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736-37, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). The Supreme Court’s decision in Schuette says nothing to the contrary. Unlike this case, Schuette involved the Michigan electorate’s vote to stop the racially discriminatory, albeit arguably beneficial, practice of affirmative action. 134 S.Ct. at 1630 (“The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.”). Far from establishing a state’s right to violate the Fourteenth Amendment by majority vote, Schuette stands for the unremarkable proposition that voters can and should be allowed to end their state’s discriminatory policies. That principle has no application *1086in a case, like this one, where voters imposed a purposefully discriminatory policy that undermines a fundamental right. Rather, the dispositive principle in this case is that “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). The Supreme Court has endorsed this principle again and again. As Justice Robert Jackson so eloquently put it: The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation. Railway Express Agency v. New York, 336 U.S. 106, 112-113, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (Jackson, J., concurring). This principle resonates today, as 10 federal courts across the country have in recent months reached similar conclusions on the very issues present in this case.15 Considering many of the same arguments and much of the same law, each of these courts concluded that state laws prohibiting or refusing to recognize same-sex marriage fail to rationally advance legitimate state interests. This judicial consensus was forged from each court’s independent analysis of Supreme Court cases extending from Loving through Romer, Lawrence, and Windsor. The logic of these precedents virtually compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they seek the benefits and responsibilities of civil marriage. Because Idaho’s Marriage Laws do not withstand any applicable form of constitutional scrutiny, the Court finds they violate the Fourteenth Amendment to the United States Constitution. V. CONCLUSION The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries. Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love. The Defendants offered no evidence that same-sex marriage would adversely affect opposite-sex marriages or the well-being of children. Without proof, the Defendants’ justifications echo the unsubstantiated *1087fears that could not prop up the anti-miscegenation laws and rigid gender roles of days long past. Then as now, it is the duty of the courts to apply the law to the facts in evidence. Here, the facts are clear and the law teaches that marriage is a fundamental right of all citizens, which neither tradition nor the majority can deny. The Fourteenth Amendment guarantees of due process and equal protection lie at the core of our constitutional system. While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today’s decision. “[T]he history of our Constitution ... is the story of the extension of constitutional rights and protections to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Slow as the march toward equality may seem, it is never in vain. ORDER The Court GRANTS Plaintiffs’ Motion for Summary Judgment (Dkt. 45). Defendant Governor Otter’s Motion for Summary Judgment (Dkt. 57) and Defendant Recorder Rich and Defendant-Intervenor Idaho’s Motions to Dismiss (Dkt. 30, 41, 43) are DENIED. The Court hereby DECLARES that Idaho’s Marriage Laws are unconstitutional because they violate Plaintiffs’ rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. The Court PERMANENTLY ENJOINS the State of Idaho and its officers, employees, agents, and political subdivisions from enforcing Article III, § 28 of the Idaho Constitution; Idaho Code Sections 32-201 and 32-209; and any other laws or regulations to the extent they do not recognize same-sex marriages validly contracted outside Idaho or prohibit otherwise qualified same-sex couples from marrying in Idaho. This injunction shall take effect at 9:00 a.m. MDT on May 16, 2014. IT IS SO ORDERED. . Bowers v. Hardwick, 478 U.S. 186, 211, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Blackmun, J., dissenting), overruled by Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). . Six states have legalized same-sex marriage through court decisions (California, Connecticut, Iowa, Massachusetts, New Jersey, and New Mexico); eight have done so through legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island, and Vermont); and three have legalized same-sex marriage by popular vote (Maine, Maryland, and Washington). See Kitchen v. Herbert, 961 F.Supp.2d 1181, 1192 n. 4 (D.Utah 2013). The District of Columbia also legalized same-sex marriage through legislation. Id. . The Idaho Code is replete with provisions referencing “husband and wife” or the traditional, opposite-sex definition of marriage. See, e.g., id. §§ 32-202 (referring to "the male” and "the female” parties to a marriage contract); 32-304 (requiring couple to declare they "take each other as husband and wife”); 32-901 to -929 (relating to "Husband and Wife — Separate and Community Property”). The Court need not survey these scattered provisions because, as discussed in Part II.D below, Plaintiffs’ requested relief is broad enough to cover any source of Idaho law that would prohibit or refuse to recognize same-sex marriages, wherever contracted. . After the dismissal of Lori Watsen’s adoption petition, the Idaho Supreme Court held "Idaho’s adoption statutes plainly allow” a woman to adopt her same-sex partner’s children. In re Adoption of Doe, 156 Idaho 345, 326 P.3d 347, 353, 2014 WL 527144, at *6 (Idaho Feb. 10, 2014). The court made clear it would not "imply ... restrictions based on Idaho's marital statutes” and that "sexual orientation was wholly irrelevant to our analysis.” Id. . There is no dispute that Plaintiffs have standing to bring this lawsuit or, considering the relief requested, that Defendants are proper parties. . The undersigned United States Magistrate Judge has jurisdiction over this matter by virtue of all parties’ express written consent. 28 U.S.C. § 636(c); see also D. Idaho Loc. Civ. R. 72.1(a)(1) (authorization to decide civil cases with the parties’ consent), (Dkt. 40) (consents). .Recorder Rich first moved to dismiss this case on January 9, 2014. (Dkt. 30.) After the Court permitted the State to intervene, the State filed a motion to dismiss that adopted all arguments made in Recorder Rich’s initial motion. (Dkt. 41.) Plaintiffs thereafter filed an Amended Complaint, (Dkt. 42), which Recorder Rich and the State jointly moved to dismiss based on the reasons stated in their earlier motions to dismiss. (Dkt. 43.) . November 22, 1971 — less than a year before the summary decision in Baker — was the first time the Supreme Court struck down a law because it unconstitutionally discriminated on the basis of gender. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Overruling the Idaho Supreme Court, Reed held that Idaho’s statutory, preference for male estate administrators was “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment....” Id. at 76, 92 S.Ct. 251. . "No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” Perry v. Schwarzenegger, 704 F.Supp.2d 921, 966 (N.D.Cal.2010); see also Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir.2000) (reviewing literature on the essential link between sexual and personal identity). . For this reason, Idaho’s Marriage Laws are subject to strict due process and equal protection scrutiny. See Zablocki, 434 U.S. at 388, 98 S.Ct. 673. But the Laws do not survive under the lower level of equal protection scrutiny applied in Part IV.D below. Consequently, the Laws would fail strict scrutiny. . In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court found that the Equal Protection Clause limits the privilege of exercising peremptory strikes when selecting a jury. Although Batson considered strikes based on race, its underlying constitutional principle now extends to classes of persons subject to intermediate or strict equal protection scrutiny. J.E.B. v. Alabama, 511 U.S. 127, 143, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ("Parties may ... exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to 'rational basis’ review.”). . Currently, Nevada's laws prohibiting same-sex marriage are before the Ninth Circuit and Oregon’s are before the District of Oregon. The Attorneys General of Nevada and Oregon both recently concluded that heightened scrutiny under SmithKline eviscerates the legal bases for their defenses. (Dkt. 77-2 at 5; Dkt. 77-3 at 22.) Consequently, both Attorneys General have refused to defend their state’s marriage laws. . The Governor does not argue that Idaho’s Marriage Laws advance traditional marriage for tradition's sake alone. But it bears repeating that the "[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.” Heller v. Doe, 509 U.S. 312, 326, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Moreover, " 'the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.’ ” Lawrence v. Texas, 539 U.S. 558, 577-78, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (quoting Bowers v. Hardwick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Stevens, J., dissenting)). . Two federal district courts have held bench trials that focused on this question. Perry v. Schwarzenegger, 704 F.Supp.2d 921 (2010); DeBoer v. Snyder, 973 F.Supp.2d 757 (E.D.Mich.2014). Both found that the overwhelming scientific consensus favors the "no differences" view. . Kitchen v. Herbert, 961 F.Supp.2d 1181, (D.Utah 2013); Bishop v. U.S., 962 F.Supp.2d 1252 (N.D.Okla.2014); Bourke v. Beshear, 996 F.Supp.2d 542, 2014 WL 556729 (W.D.Ky. Feb. 12, 2014); Bostic v. Rainey, 970 F.Supp.2d 456 (E.D.Va.2014); Lee v. Orr, 2014 WL 683680 (N.D.Ill. Feb. 21, 2014); De Leon v. Perry, 975 F.Supp.2d 632 (W.D.Tex. 2014); Tanco v. Haslam, 7 F.Supp.3d 759, 2014 WL 997525 (M.D.Tenn. Mar. 14, 2014); DeBoer v. Snyder, 973 F.Supp.2d 757 (E.D.Mich.2014); Henry v. Himes, 14 F.Supp.3d 1036, 2014 WL 1418395 (S.D.Ohio Apr. 14, 2014); Baskin v. Bogan, 12 F.Supp.3d 1137, 2014 WL 1568884 (S.D.Ind. Apr. 18, 2014).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224373/

*1128TABLE OF CONTENTS ORDER PAGE Order Denying Summary Judgment re: Certain Species and Deep-Water Harvest (1/14/94) 1128 Order Clarifying Prior Order Denying Summary Judgment re: Certain Species and Deep-Water Harvest (2/1/94) 1131 Order Denying Cross-Motions for Summary Judgment (2/7/94) 1131 Consent Decree Regarding Shellfish Sanitation Issues (5/4/94) 1134 Consent Decree (11/28/94) 1169 Memorandum Opinion and Order. 873 F.Supp. 1422 (12/20/94) See Appendix COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 1986) ORDER DENYING SUMMARY JUDGMENT RE: CERTAIN SPECIES AND DEEP-WATER HARVEST Subproceeding No. 89-3 (January 13, 1994) EDWARD RAFEEDIE, District Judge. TO ALL COUNSEL OF RECORD: The Court has read and considered the papers supporting and opposing the state of Washington’s motion for partial summary judgement regarding certain species and deep-water harvest. The Court finds that the two theories advanced by the State of Washington are inconsistent with a proper interpretation of the Stevens Treaty. Accordingly, these theories are rejected, and partial summary judgment is DENIED. INTRODUCTION The State of Washington (“Washington”) has moved for partial summary judgment to establish that the right of the tribes to harvest shellfish is limited to exclude: (1) Species that were not harvested at or before treaty time, such as shrimp, scallops, squid or abalone (2) Shellfish harvested in deep-water areas where no harvesting occurred at or before treaty time, such as sea cucumbers, sea urchins, octopus, geoduck and crab. Standard for Summary Judgment Fed.R.Civ.P. 56(c) provides that summary judgment will be granted if the moving party can establish that there is “no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” British Airways Board v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978). It is the moving party’s burden to inform the Court of the basis for its belief there are no genuine issues of material fact and this may be demonstrated by pointing out an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Principles of Treaty Interpretation According to United States v. Choctaw Nation, 179 U.S. 494, 531, 21 S.Ct. 149, 163, 45 L.Ed. 291, 306 (1900), the intentions of the parties to the treaty will control the treaty’s interpretation. In determining the intentions, a Court should look to “the words used — the words being interpreted, not literally nor loosely, but according to their ordinary signification. If the words be clear and explicit, leaving no room for doubt what the parties intend*1129ed, they must be interpreted according to their natural and ordinary significance.” Id. (emphasis added). Therefore, under the familiar cannon of statutory construction, the starting point for interpreting a statute (in this case a treaty) is the language of the statute itself and “absent a clearly expressed legislative intention to the contrary, ... [treaty] language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980); See also Sumitomo Shoji America Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (“Clear import of treaty language controls unless application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent of expectations of its signatories”). Special canons of construction are applied to determine the meaning of Indian treaties. These canons provide that any ambiguities in language must be resolved in favor of the Indians, that the language should not be construed to the prejudice of the Indians, and that technical meanings should be avoided in favor of the understanding of the Indians. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n., 443 U.S. 658, 675-676, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 528, 8 L.Ed. 483 (1832); Winters v. United States, 207 U.S. 564, 577, 28 S.Ct. 207, 52 L.Ed. 340 (1908); U.S. v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). Finally, the Supreme Court stated in United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 49 L.Ed. 1089 (1905) that Indian treaties should not be viewed as grants of rights to the Indians, but as grants of rights from the Indians to the United States. Any rights which were not granted by the Indians to the United States were reserved by the Indians because the Indians already possessed them. Washington Theory Number One: Species Limitation Washington begins with a factual assertion that the Tribes did not harvest certain species of shellfish, such as shrimp and scallops (“named species”), at or before treaty time. On that basis, Washington argues that the Stevens Treaty covers only species of fish harvested at or before treaty time, and that the Tribes therefore have no treaty right respecting the named species. The starting point in evaluating this theory is the treaty language itself: The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, that they shall not take shell-fish from any beds staked or cultivated by citizens. The Court has already held that shellfish are fish. Since the named species are shellfish, they are fish as well, and are covered by the treaty. There is no language in the treaty that undermines these simple propositions. Any attempt by Washington to read such a limitation into the treaty must fail. All of the canons of treaty construction obstruct such an inference, but one such canon is particularly lethal to Washington’s theory: the “reservation of rights” canon. It is well-settled that treaties are to be construed as a grant from the Indians to the United States, not the reverse, and that any rights specified in the treaty *1130are deemed “reserved” by the Indians. See, e.g. Winans, supra; U.S. v. Washington, 520 F.2d 676, 684 (9th Cir.1975). Pri- or to the signing of the Stevens Treaty, the Indians had the absolute right to harvest any species they desired. They had the right to harvest shrimp and scallops; whether or not they exercised that right is irrelevant. The right to fish reserved in the treaty therefore encompasses a right to harvest the named species. This finding is consistent with the prior findings of this Court. In U.S. v. Washington, 384 F.Supp. 312, 401 (W.D.Wash.1974), Judge Boldt established as a conclusion of Law that: [t]he right secured by the treaties to the Plaintiff tribes is not limited as to species of fish, the origin of fish, the purpose or use, or the time or manner of taking, except to the extent necessary to achieve preservation of the resource and to allow non-Indians an opportunity to fish in common with treaty right fishermen outside reservation boundaries. Thus the law of the case as well as the principles of treaty interpretation repudiates the first theory advanced by Washington. Washington Theory Number Two: Deep-Water Harvest The second limit on the Tribes’ treaty rights sought by Washington relies on the “usual and accustomed grounds and stations” clause in the Stevens Treaty. Washington argues that deep-water areas are excluded as a matter of law from all Tribes’ usual and accustomed grounds, because none of the tribes engaged in deep-water harvest at or before treaty time. Determination of each tribe’s usual and accustomed grounds requires a factual inquiry by the Court; each tribe must come forward and prove its usual and accustomed grounds and stations at the time the treaty was signed. However, Washington wishes to pre-empt some portion of this factual determination, and have the Court exclude all deep-water areas from treaty coverage. The Court declines to make such a finding. As discussed above, prior to the signing of the Stevens Treaty, the Tribes had the absolute right to fish for whatever species they desired within their usual and accustomed grounds. Similarly, they had the absolute right to plumb any depths within those usual and accustomed grounds. Just as it is irrelevant that the Tribes chose not to harvest the named species, it is irrelevant that they could not, because of technological limitations, harvest shellfish in deep-water areas. Had it been availed of the technology, any tribe could have harvested shellfish in the deep waters of their usual and accustomed grounds, areas where they had previously fished only for anadromous fish. Consistent with these observations, the Court concludes as a matter of law that usual and accustomed grounds and stations do not vary with the species of fish, and that the usual and accustomed grounds and stations for non-anadromous fish are coextensive with those of anadro-mous fish. And, as there is ample evidence that at least some of the tribes’ usual and accustomed grounds and stations for anadromous fish include deep-water areas, See e.g., United States v. Washington, 384 F.Supp. at 367, 369, 371, 374, the Court will not exclude deep-water areas from any determination of usual and accustomed grounds and stations in this case. IT IS SO ORDERED. *1131The Clerk of the Court is directed to send copies of this Order to all counsel of record and others entitled to notice, via United States mail, immediately. ORDER CLARIFYING PRIOR ORDER DENYING SUMMARY JUDGMENT RE: CERTAIN SPECIES AND DEEP-WATER HARVEST Subproceeding No. 89-3 (February 1, 1994) EDWARD RAEEEDIE, District Judge. TO ALL COUNSEL OF RECORD: On January 6, 1994, the Court issued an order denying summary judgment to defendants regarding the issues of certain species and deep-water harvest. The parties have interpreted the Court’s order as a grant of summary judgment in favor of plaintiffs. It was not the Court’s intention to bestow this benefit upon the non-moving party. Notwithstanding any language in the order indicating otherwise, it was the Court’s intention to reject the interpretation offered by defendants, not to adopt an alternative interpretation as a matter of law. The order was neither a grant of summary judgment, nor a partial adjudication of issues; it was merely a denial of summary judgment. Any language indicating otherwise should be disregarded. The issues raised in the summary judgment motion remain to be resolved at trial. The plaintiff tribes, all of them, must still come forward with evidence proving usual and accustomed grounds. IT IS SO ORDERED. The Clerk of the Court is directed to send copies of this Order to all counsel of record and others entitled to notice, via United States mail, immediately. ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT Subproceeding No. 89-2 (February 8, 1994) BARBARA J. ROTHSTEIN, Chief Judge. THIS MATTER comes before the court on cross-motions for summary judgment by the Lummi Tribe and by four other tribes regarding the Lummi Tribe’s cross request for determination regarding its usual and accustomed fishing grounds. Having reviewed the motions together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows: I. FACTUAL BACKGROUND This subproceeding involves the issue of whether the Lummi Tribe’s usual and accustomed fishing grounds include the Strait of Juan de Fuca, Admiralty Inlet and the mouth of Hood Canal. ' Judge Boldt made an initial determination in United States v. Washington, 384 F.Supp. 312 (1974), concerning the extent of the Lummi Tribe’s usual and accustomed fishing grounds: In addition to the reef net locations listed above, the usual and accustomed fishing places of the Lummi Indians at treaty times included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay. Freshwater fisheries included the river drainage systems, especially the Nooksack, emptying into the bays from Boundary Bay south to Fidalgo. Finding of Fact 46, Final Decision No. 1, 384 F.Supp. at 360-61 (hereafter “Final Decision No. 1”). In 1989, the Lummi Tribe issued regulations opening to Lummi tribal members *1132fisheries in the Strait of Juan de Fuca, Discovery Bay and Admiralty Inlet and the northernmost portion of Hood Canal. Plaintiff-intervenors Skokomish, Jamestown S’Klallam, Lower Elwha S’Klallam and Port Gamble S’Klallam Tribes (“the Four Tribes”) promptly filed a request for determination by this court that the Lum-mi Tribe’s usual and accustomed areas do not include the Strait of Juan de Fuca, Discovery Bay, Admiralty Inlet or Hood Canal. The Lummi Tribe responded that it had been granted these areas in Final Decision No. 1. In the alternative, it filed a cross request for determination that these areas are included within its usual and accustomed fishing grounds. In an order entered on February 15, 1990, Judge Coyle rejected the Lummi Tribe’s argument that the geographic scope of Judge Boldt’s Final Decision No. 1 on the Lummi usual and accustomed fishing areas included the Strait of Juan de Fuca, Admiralty Inlet and the mouth of Hood Canal. Both the Four Tribes and the Lummi Tribe now move for summary judgment on whether the disputed areas should be added to the Lummi usual and accustomed fishing grounds. II. LEGAL ANALYSIS A. Issue Preclusion Before reaching the merits of the issue, the Four Tribes first contend that the Lummi Tribe’s attempt to bring an action expanding its usual and accustomed fishing grounds is precluded by Final Decision No. 1. The Four Tribes point out that, pursuant to paragraph 25 of the order entered in Final Decision No. 1, “[t]he parties or any of them may invoke the continuing jurisdiction of this court in order to determine: ... the location of any of a tribe’s usual and accustomed fishing grounds not specifically determined by Final Decision I. ...” (emphasis supplied) 384 F.Supp. at 419. The Four Tribes argue that the Lummi Tribe is precluded from relitigating the question of its rights in the disputed areas because Judge Boldt specifically rejected the Lummi Tribe’s claims to any fishing rights in those areas in Final Decision No. 1. In Judge Coyle’s order of February 15, 1990 interpreting Judge Boldt’s Final Decision No. 1 on the question of Lummi Tribe usual and accustomed fishing areas, Judge Coyle held that Judge Boldt did not intend to include the disputed areas in the Lummi Tribe usual and accustomed fishing grounds. But that is not the same as concluding that Judge Boldt specifically rejected the Lummi Tribe’s claim to rights in the disputed areas. Based on the record before it, this court is not willing to find that Judge Boldt determined the issue currently before the court within the meaning of paragraph 25 of the Final Decision No. 1 so as to preclude the Lummi Tribe from raising it now. As Judge Coyle pointed out, Judge Boldt relied heavily on the expert testimony of Dr. Barbara Lane in reaching the conclusions stated in Final Decision No. 1. 384 F.Supp. at 350. In a declaration executed on March 23,1989 in connection with this subproceeding at ¶ 5, Dr. Lane averred that “[a]t the time of [her] 1973 reports and testimony, [she] had not reached, expressed or intended any conclusion that the treaty-time U & A fishing grounds and stations of the predecessor Indians to the present Lummi Tribe included [the disputed areas].” On the other hand, she did not negate the possibility either. Her declaration went on to say that “[i]n the time available, ... [she was] unable to formulate a conclusion on treaty-time existence or extent of fishing activity by those Lummi predecessors in those waters.” Id. Given Judge Boldt’s extensive reliance on Dr. Lane’s expertise, the court *1133doubts that he would have gone beyond her mere reservation of judgment to reject outright the Lummi Tribe’s claims to the disputed areas. Certainly there is nothing on the record to indicate that he did so. B, Appropriateness of Summary Judgment Regarding the question of whether summary judgment is appropriate, the Lummi Tribe offers affidavits from Dr. Wayne Suttles, Samuel Cagey and Clarence Cagey. Dr. Suttles is an anthropologist who has done research on the Coast Salish peoples, including the Lummis. Dr. Suttles avers as follows concerning the issue in this case: 4. It is my opinion that during the mid-19th century the Lummi and Samish people, whose territory included most of the San Juan Islands, customarily and routinely fished in the eastern Strait of Juan de Fuca, that is, the body of water partially enclosed by the San Juan Islands, southeastern Vancouver Island, the northeastern Olympic Peninsula, and Whidbey Island. They also fished in other waters. 5. In the eastern strait of Juan de Fuca, the Lummi and Samish caught, among other fishes, salmon (by trolling and with reef nets) and halibut. This fishing was a part of their regular food gathering activity. Dr. Suttles also comments that there was extensive intermarriage among the peoples inhabiting the shore of the eastern Strait of Juan de Fuca, resulting in frequent visits among families in different villages and participation in local resource-harvesting activities including fishing. Id. at ¶ 6. Samuel and Clarence Cagey, the authors of the other two declarations submitted by the Lummi Tribe in support of its motion for summary judgment, are brothers and enrolled members of the Lummi Nation. Born in 1924 and 1934, respectively, they are tribal elders who attest to having fished all of their adult lives. Both state that in their youth, relatives including their father, who was born in 1871, and their uncles told them about traditional fishing places including “in and around the San Juan Islands, Samish Bay., the Samish River, Point Roberts, the eastern part of the Juan de Fuca Strait, South Whidbey Island, around the north-eastern part of the Olympic Peninsula, and Admiralty Inlet.” Samuel Cagey Dec., ¶ 9; Clarence Cagey Dec., ¶ 13. In response, the Four Tribes point out several flaws in the declarations on which the Lummi Tribe relies. Regarding Dr. Suttles’ declaration, the Four Tribes contend that he failed to cite any factual evidence in support of his opinion about the Lummi traditional fishing grounds. Indeed, his declaration merely states: 7. I base my opinions expressed in this declaration on my own research, especially the work that went into my doctoral dissertation but including my later work in the region, which contributed to articles that appear in my Coast Salish Essays and others listed in my curriculum vitae. My opinions have, of course been developed in the light of the work of others in this region, including, but not confined to, Franz Boas, Erna Gunther, Bernhard Stern, Diamond Jenness, Homer Barnett, W.W. Elmendorf, and Wilson Duff, as well as the early historical accounts. They have also developed in the light of discussions with other scholars, including, but not confined to, W.W. Elmendorf, Barbara Lane, and Michael Kew. As for the Cageys’ declarations, the Four Tribes emphasize that they did not discuss treaty time fishing activity. Neither the declarants nor the relatives with whom they discussed fishing grounds in their *1134youth were alive during treaty time. Based on these flaws in the evidence offered by the Lummi Tribe, the Four Tribes contend that the Lummi Tribe has failed to make a showing sufficient to withstand summary judgment on the issue of whether the disputed areas are within the Lummi Tribe’s usual and accustomed fishing grounds. The court agrees with the Four Tribes that Dr. Suttles’ as well as Samuel and Clarence Cagey’s declarations are plagued by fundamental weaknesses. Nevertheless, the court is not willing at this juncture to conclude that summary judgment for the Four Tribes is appropriate. While Dr. Suttles’ declaration in itself is remarkably devoid of any reference to specific evidence on which he relied in reaching the opinion stated, his curriculum vitae reflects an extensive background stretching back more than forty years in researching the history of Northwest Coast Indians. For purposes of surviving summary judgment, the court will accept Dr. Suttles’ general qualifications as an expert in the field and provide him the opportunity to substantiate the opinion stated in his declaration with specific factual and documentary evidence.1 The court has also taken account of the Four Tribes’ concern about the vagueness and ambiguity inherent in Dr. Suttles’ description of the area to which he refers in his declaration. The court will expect Dr. Suttles to clarify the boundaries of the geographic areas to which he refers together with the specific documentation pertinent to each area. As for Samuel and Clarence Cagey’s declarations, the court finds that they are very weak evidence. But while they fail to address fishing practices during treaty time, they are not entirely irrelevant. Coupled with Dr. Suttles’ opinion in his declaration, the court finds that the Lum-mi Tribe has presented sufficient evidence to at least survive summary judgment. III. CONCLUSION The Four Tribes’ and the Lummi Tribe’s cross motions for summary judgment are accordingly DENIED. CONSENT DECREE REGARDING SHELLFISH SANITATION ISSUES Subproceeding 89-3 (May 4, 1994) EDWARD RAFEEDIE, District Judge. I. PARTIES A. This Consent Decree is entered into by and between the plaintiffs United States of America, Hon. Tribe, Jamestown S’Klallam Tribe, Lower Elwha S’Klallam Tribe, Lummi Nation, Makah Tribe, Muck-leshoot Tribe, Nisqually Tribe, Nooksack Tribe, Port Gamble S’Klallam Tribe, Pu-yallup Tribe, Quileute Tribe, Quinault Indian Nation, Skokomish Tribe, Squaxin Island Tribe, Suquamish Tribe, Swinomish Indian tribal Community, Tulalip Tribes, Upper Skagit Tribe, and Yakama Indian Nation, defendant the State of Washington and defendant state officers (“the state defendants”), all of whom, plaintiff and *1135defendant, are referred to hereinafter as “the parties”. B. Plaintiff tribes are federally-recognized Indian tribes. The plaintiff tribes, or other tribes or bands of which the plaintiff tribes are successors-in-interest, are parties to treaties with the plaintiff United States executed by their representatives in the 1850’s, each of which reserves to the tribes, in substantially identical language, “the right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing.... Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens.” [quoted from Art. Ill, Treaty of Medicine Creek, 10 Stat. 1133] Tribes regulate the shellfish-ing activities of their members to protect public health. C. The United States Food and Drug Administration (“FDA”) is the agency of plaintiff United States having primary responsibility for protecting the public from shellfish-borne illness. FDA prepares and publishes the National Shellfish Sanitation Program (“NSSP”) Manual of Operations, which contains standards to be used in regulating commerce in clams, oysters, mussels and scallops in order to protect the public from shellfish-borne illness. FDA also publishes the Interstate Certified Shellfish Shippers List, which identifies all persons and entities who have been determined by FDA or by an FDA-approved Shellfish Sanitation Control Agency to be in compliance with the NSSP Manual and whose product may be shipped interstate. D. The state regulates shellfish harvest, processing and sale in order to protect public health. The state is a member of the Interstate Shellfish Sanitation Conference (“ISSC”), an organization of states, the shellfish industry, and federal agencies operating under a Memorandum of Understanding with FDA. The ISSC provides a forum for its members to discuss shellfish sanitation issues, and it suggests changes in the NSSP Manual to thé FDA. II. RECITALS A. As used in this Decree, “covered claims” means claims of the plaintiffs, set forth in Part I of the Final Pretrial Order approved by the Court in this subproceed-ing, that relate to the application to or enforcement against the plaintiff tribes of state laws, regulations, or policies which regulate the taking, possession, or disposition of shellfish in order to protect the public from shellfish-borne illness; and the claims of the State of Washington set forth in Part II.B.l. of that Pretrial Order; and any claim of any party related to the authority of the state to regulate treaty shell-fishing activities in order to protect the public from shellfish-borne illness, which claim could have been adjudicated in this subproceeding had it been prosecuted to final judgment. For the purpose of determining whether claims could have been adjudicated, reference shall be made to the facts and allegations made in the documents filed with the Court in this subpro-ceeding prior to the date of entry of this Decree which relate to the protection of the public from shellfish-borne illness, including facts and allegations made in the Requests for Determination, the Amended Request for Determination, the Response of the State to the Requests for Determination, and the Pretrial Order approved by the Court pursuant to Local Civil Rules 16 and 16.1 of this Court. B. This subproceeding was filed in 1989 seeking declaratory and injunctive relief regarding the treaty right to take shellfish, including a declaration and injunction regarding the authority of the *1136state to regulate treaty shelfishing activities for public health purposes. C. The United States and the tribes seeking relief in this subproceeding have claimed that their treaties substantially restrict state authority; these tribes, however, have acknowledged a willingness to abide by state regulation of treaty shell-fishing activities to protect public health, so long as such regulation is reasonable and necessary, non-discriminatory, and meets appropriate standards. The United States and these tribes have further claimed that some state shellfish sanitation laws, regulations and policies do not meet this test and cannot be enforced against tribal treaty shellfishing activities. D. The state defendants claim that they may regulate Indian treaty shellfish-ing activities of plaintiff tribes to protect human health, safety and welfare, provided any such regulations are reasonable and non-discriminatory. The state has denied plaintiffs’ claims regarding the restricted applicability of its shellfish sanitation laws to Indian treaty shellfishing. E. Without admission or adjudication of any covered claim, and without waiving any objection, claim, or defense with regard to claims other than the covered claims, in settlement of the covered claims the parties have agreed, upon entry of this Consent Decree, to participate in a cooperative investigatory and regulatory program to protect the public from food-borne illness associated with the consumption of contaminated shellfish. The tribes have agreed that the performance criteria and other satisfactory compliance provisions of the NSSP Manual will govern their treaty shellfishing activities, with regard to species to which the Manual applies. In addition, the parties have agreed to mechanisms whereby any plaintiff tribe having treaty shellfishing rights may implement certain shellfish sanitation measures independently of the state. F. The terms of this Decree are not intended, nor could they be expected, to specify every detail of the operation of the cooperative shellfish sanitation program. The parties have attempted to specify, in the Appendix to the Settlement Agreement which is part of this Decree, some of the details, particularly technical ones, involved in the operation of their cooperative program. Some such details must, of necessity, change as scientific knowledge of shellfish and public health change. Therefore, the parties have established mechanisms in the Settlement Agreement and Appendix for the further refinement of their cooperative program. G. The parties agree that the covered claims raise matters of sovereign interest, and that their settlement of the covered claims as set forth in this Decree is fair, adequate, reasonable, equitable and in the public interest and is made in good faith after arms-length negotiations, and that entry of this Consent Decree is the most appropriate means to resolve the matters covered herein. NOW, THEREFORE, before the taking of any testimony, before the adjudication of the covered claims, and without admission of any issue of law, fact, or liability by the parties, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: III. ORDER A. The Court has jurisdiction over the subject matter of the covered claims and over the parties pursuant to 28 U.S.C. §§ 1331, 1345, and 1362. Plaintiffs assert, but the state defendants contest, that the Court also has jurisdiction pursuant to 28 U.S.C. § 1343(a)(3) and this Court’s continuing jurisdiction as declared in ¶ 24 of the Declaratory Judgment and Decree of February 12, 1974, 384 F.Supp. 312 at 408. *1137All parties to this Decree, for purposes of the entry and enforcement of this Decree, waive all objections and defenses they may have to the jurisdiction of the Court, or to venue in this District, or to service of process prior to the entry of this Decree but not afterwards. B. The provisions of this Decree shall apply to and be binding on the parties, their agencies, subdivisions, boards, and commissions, all agents and officers thereof, and all successors and assigns of all such entities and individuals; and each of them are hereby enjoined to comply with the provisions of this Decree. Changes in the organizational structure of a party or any of its agencies, subdivisions, boards and commissions shall have no effect on its obligations under this Decree. C. The attached Settlement Agreement, including the Appendix, is hereby incorporated by reference in and made a part of this Decree as if fully set forth herein. D. Except as specifically provided for otherwise in the Settlement Agreement, the plaintiffs covenant not to sue or to take any other judicial or administrative action against any state defendant, and the state defendants covenant not to sue or to take any other judicial or administrative action against any plaintiff, or against any member of a plaintiff tribe, for covered claims or for any claims relating to or arising from the filing and litigation of the covered claims and the negotiation, terms, approval and implementation of this Decree. E. If for any reason the Court should decline to approve this Decree in the form presented, any statements made in negotiation and the terms herein may not be used as evidence in any litigation or administrative proceeding. F. Each undersigned representative of the parties certifies that he or she is fully authorized to enter into the terms and conditions of the Decree and to legally execute, and bind such party to, the Decree. G. The terms of this Decree may be modified only by a subsequent written agreement executed by all the parties and approved by the Court. Notwithstanding the foregoing, the parties by written agreement and without the need for Court approval may modify or amend the Appendix to the Settlement Agreement, other than Attachment A thereto, relating to procedures for the development of implementation protocols and policies, which shall not be amended without Court approval. H. If for any reason the Court declines to approve this Decree in the form presented, this Decree and the settlement embodied herein shall be voidable at the sole discretion of any party upon written notice to all parties and to the Court. I. This Consent Decree shall be effective upon the date of its entry by the Court. J. The Court shall retain jurisdiction for purposes of entering such further orders as may be appropriate for the construction, implementation, or enforcement of the Decree. In the event that the jurisdiction retained in this paragraph, or the continuing jurisdiction of the Court over Civil No. 9213 or over this subproceeding, is terminated, this Decree shall be enforceable in the same manner as any final judgment and order of the Court. K. The use of the terms “primary responsibility” and “concurrent jurisdiction” in the Settlement Agreement shall not be construed to confer or enlarge the jurisdiction of any plaintiff tribe over non-Indians. By signature below all parties consent to entry of this Decree as an Order of the Court. *1138SETTLEMENT AGREEMENT REGULATION OF TREATY SHELLFISHING FOR HEALTH PURPOSES Subproceeding 89-3 CONTENTS I. ESTABLISHMENT OF COOPERATAIVE, INTERGOVERNMENTAL SHELLFISH SANITATION PROGRAMS.1139 A. Objectives/Applicability Of National Shellfish Sanitation Program Manual.1139 B. FDA Approved, Independent Tribal Shellfish Sanitation Control Agencies .1140 C. Development And Expansion Of Intergovernmental Shellfish Sanitation Programs/Teehnical Assistance .1141 II. LICENSING, INSPECTION AND CERTIFICATION FOR INTERSTATE AND INTRASTATE SHIPMENT.1142 A. Tribes May Assume Primary Responsibility For Individual And Tribal Shellfish Operations.1142 B. State To Exercise Primary Responsibility.'.1143 C. Tribal Certification — Compliance with NSSP Manual Part II.1144 D. License Fees.1144 III. SHELLFISH SANITATION CRITERIA AND MEASURES APPLICABLE TO TREATY SHELLFISHING ACTIVITIES ... I — i A. Compliance With NSSP Manual Sufficient. l — i B. Emergencies-Additional Measures, Including Closures, May Be Applied To Treaty Shellfishing When Essential In Responding To A Health Emergency. l& t — i t-H C. Commercial Harvests From Closed Areas Shall Be Prohibited_ IC 1-H t — I 1146 D. Commercial Harvests From Closed Areas Permissible If Not For Human Consumption. 1147 E. Joint Identification And Development Of Protocols, Standards And Other Guidance For Implementation Of The NSSP Manual .... 1147 F. Growing Area Classification/Certification. IV. EXCHANGE OF REGULATIONS AND DATA/REPORTING ILLNESSES .1149 V. STATE AUDIT OF TRIBAL PROGRAMS.1149 VI. ENFORCEMENT.1149 VII. NOTIFICATION.1152 VIII. DISPUTE RESOLUTION.1152 A. Matters Reviewable.1152 B. Dispute Resolution Committee .1153 C. Appointment Of Master Expert.1154 D. Review Procedure.'.1154 IX. CONSISTENCY OF AGREEMENT WITH NATIONAL SHELLFISH SANITATION PROGRAM7ANTI-DISCRIMINATION PROVISION.1155 X. AMENDMENTS.1155 *1139XI. INTENT TO BIND POLITICAL SUBDIVISIONS, ETC .1155 XII. JUDICIAL APPROVAL.1155 APPENDIX.1156 SHELLSTOCK HARVEST FOR BAIL PROPOSED REQUIREMENTS.1157 SHORT-TERM RELAYING PROTOCOL AND GENERAL REQUIREMENTS.1158 PROCEDURES FOR ESTABLISHING SANITARY LINES IN SHELLFISH GROWING AREAS.1162 PROCEDURES FOR ESTABLISHING SANITARY LINES AROUND WASTEWATER OUTFALLS.1168 PROCEDURES FOR ESTABLISHING SANITARY LINES AROUND MARINAS.1164 MINIMUM QUALIFICATION FOR STANDARDIZED SHELLFISH INSPECTORS.1165 MINIMUM QUALIFICATIONS FOR CONDUCTING WATER QUALITY STUDIES. 1166 MINIMUM QUALIFICATIONS FOR CONDUCTING SHORELINE SURVEYS... .1166 EXAMPLES OF EFFECTIVE TRIBAL PROGRAMS TO PREVENT SALE OF CEREMONIAL AND SUBSISTENCE HARVEST.1167 REGULATION OF TREATY SHELL-FISHING ACTIVITIES FOR HEALTH PURPOSES SETTLEMENT AGREEMENT The plaintiff tribes, United States, and State of Washington, in settlement of the health protection issues raised in United States v. Washington, W.D. Wash. Civil No. 9213, Subproceeding 89-3, which involve the scope of state authority to regulate treaty shellfishing activities for shellfish sanitation, agree as follows. I. ESTABLISHMENT OF COOPERATIVE, INTERGOVERNMENTAL SHELLFISH SANITATION PROGRAMS A. Objectives/Applicability of National Shellfish Sanitation Program Manual The tribal, United States, and state governments, which are parties to this Agreement [hereafter “parties”], recognize that they share a strong concern for shellfish sanitation and the enforcement of effective measures to protect the public from health hazards associated with shellfish contamination. The parties agree that these mutual objectives can be effectively addressed by cooperative, intergovernmental shellfish sanitation programs in which the state and tribes accept varying degrees of responsibility for shellfish sanitation matters related to treaty shellfishing activities. The parties agree that these intergovernmental programs are appropriate not only in protecting public health but also in address*1140ing the jurisdictional issues surrounding treaty shellfishing rights, the special federal/tribal relationship, and the State of Washington Centennial Accord. In implementing all aspects of this Agreement, the parties agree to be guided by the unique legal and political status of the tribes, to the extent the level of health protection provided by the programs would not be compromised. The State of Washington agrees to support separate tribal representation in the Interstate Shellfish Sanitation Conference (“ISSC”) and other intergovernmental organizations involved in the development of shellfish sanitation standards, data, training or information. The tribes agree that the performance criteria and other satisfactory compliance provisions of the National Shellfish Sanitation Program (“NSSP”) Manual, currently in effect, or as subsequently adopted, shall govern their treaty shellfishing activities. The tribes retain the right to propose and pursue changes in the NSSP Manual, in applicable federal law, and in any state shellfish sanitation laws, regulations, or policies. In proposing and pursuing such changes, the tribes will not challenge the application of the terms of this Agreement to them or their members as inconsistent with their treaty rights, except that changes in the NSSP manual claimed to discriminate against treaty shellfishing activities may be challenged on that ground. Nothing in this Agreement shall preclude a tribe from enacting ordinances or adopting regulations more stringent than the NSSP standards. B. Independent Tribal Shellfish Sanitation Control Agencies A tribal government may undertake sole responsibility for shellfish sanitation in its treaty shellfishing activities. A tribe having sole responsibility for shellfish sanitation shall be responsible for ensuring compliance in treaty fishing activities with the NSSP Manual, both Parts I and II. The state will have no responsibility for licensing, certifying or inspecting such activities or any shellfish operation of such a tribe, for the purposes of shellfish sanitation. The state also will not conduct any shellfish sanitation enforcement as to such treaty shellfishing. Such tribe could undertake independent classification of growing areas within its usual and accustomed areas, consistent with the concurrent jurisdiction provisions of this Agreement, provided that such tribe may not undertake such classification as to any bed staked or cultivated by citizens unless afforded access to the bed by agreement of the owner or lessee. A tribe in this category is not subject to Parts II, III, §§ B-F, V, VI and the Appendix to this Agreement, but may choose to participate in any of the joint technical/protocol development, enforcement, or other intergovernmental measures provided for in those sections. The tribes agree that before undertaking sole responsibility, approval will be obtained from the appropriate office of the United States Food and Drug Administration (“FDA”) for the tribe’s independent shellfish sanitation program (“SSCA”). FDA’s approval will be based upon a tribe’s ability to meet the standards set forth in the NSSP Manual. In addition to facilities, staff, and other resources of a tribal organization, a contractor, or consultant may be relied upon to establish a tribe’s qualifications to act as an independent shellfish sanitation control agency. The parties recognize that a tribe’s status as an independent shellfish sanitation control agency may present questions related to concurrent jurisdiction over growing areas from which both tribal and non-tribal harvest is permitted. Questions will *1141relate, for example, to initial classification, reclassification, and monitoring of growing areas and response to actual or perceived emergencies. As part of any tribal request for recognition as an independent shellfish sanitation control agency, the state and tribe shall present either a joint proposal to FDA for addressing these jurisdictional questions or a statement of their respective positions on disputed jurisdictional questions. Disputes over whether a particular matter raises a meritorious claim of jurisdiction may be submitted for federal court resolution. Where the state and tribes agree or the court determines that concurrent jurisdiction exists, disputes regarding the appropriate coordination or exercise of such jurisdiction for public health protection shall be resolved through the mechanism described in Part VIII, § A.3 of this Agreement. Any jurisdictional question identified after the approval of a tribe as a SSCA, which for whatever reason, was not addressed earlier shall be addressed and resolved by the state and tribes and submitted to FDA using the same procedure applicable to an initial request for recognition. C. Development And Expansion Of Intergovernmental Shellfish Sanitation Programs/Technical Assistance The state shall seek funding for a well-qualified individual who would be employed by the state for the purpose of assisting the tribes in developing expertise in matters of public health and shellfish sanitation. When funding for this position becomes available or is reasonably anticipated, the state will provide the tribes with a list of qualified individuals who have public health expertise and, more specifically, expertise with respect to shellfish sanitation. The state, in consultation with the tribes, will select from this list one person whose responsibility would be to advise the tribes with respect to public health and shellfish sanitation. This individual will be a state employee and the state will provide this individual’s salary and benefits for a period of five years. It is contemplated that this individual would be officed in a tribal facility such as the Northwest Indian Fisheries Commission (NWIFC) office and will prioritize his or her activities as determined by the tribes. During this time, those tribes desiring to take responsibility for shellfish sanitation matters will seek funding and/or other necessary support to hire and integrate into their tribal shellfish programs persons with experience in public health and shellfish sanitation matters. The state may seek additional funding for the purpose of assisting the tribes in developing expertise in matters of public health and shellfish sanitation. The state will provide additional technical assistance to tribes wishing to increase their expertise in matters of public health and shellfish sanitation subject to resource constraints. Examples of technical assistance include training, agreements for use of state laboratory facilities and access to state data, and advice regarding program design and operation. It is recognized by the parties that the personnel infrastructure necessary for a comprehensive shellfish sanitation program, the wide array of technical expertise, and laboratory support facilities would be more easily attained through intertribal cooperation and sharing of resources. In establishing the tribes’ abilities to accept varying degrees of responsibility leading to being recognized as independent tribal SSCA’s, the pooling of tribal resources and expertise shall be considered consistent with the provisions of this Agreement and is encouraged. The tribes and state agree to establish regular meetings, at least on a quarterly *1142basis, to discuss shellfish sanitation matters of concern, exchange information and knowledge, and identify and implement mechanisms to further their cooperative, intergovernmental approach, consistent with this Agreement. Tribes shall be notified of and may participate in all formal FDA and state shellfish sanitation training programs. The Department of Health will use its best efforts to gain FDA approval of a state laboratory certification officer. Upon application, the state’s lab certification officer will determine whether the applicant’s laboratory meets the requirements of Part I of the NSSP Manual. This shall not preclude FDA certification of a tribal laboratory. II. LICENSING, INSPECTION AND CERTIFICATION FOR INTERSTATE AND INTRASTATE SHIPMENT Any state or tribal licensing or certification decision regarding a tribal or individual tribal operation and relating to shellfish sanitation shall be consistent with this Agreement. The State agrees that, for the purpose of complying with this Agreement, a tribe may license individual tribal members and nonmember assistants to harvest, and to sell the shellfish they have harvested, under the tribe’s state license and certification number, provided that the licensing of nonmember assistants complies with the ruling of the court in United States v. Washington, 384 F.Supp. 312, 412 (W.D.Wash.1974) (Ruling on Fisheries’ Question No. 20). A. Tribes May Assume Primary Responsibility For Individual And Tribal Shellfish Operations Although not approved as an independent shellfish sanitation control agency, a tribe may assume primary responsibility for the inspection and licensing of shellfish operations subject to its jurisdiction by obtaining FDA recognition that a tribal employee, consultant, or agent satisfies the qualifications for becoming a “standard,” in accordance with FDA procedures, and as provided in the NSSP Manual. Such responsibility includes responsibility for ensuring compliance of individual tribal harvesters and tribally authorized shellfish dealers with Part II of the NSSP Manual. This Agreement provides for the recognition of such tribal standards. This provision, the parties agree, is a step toward tribal autonomy with respect to the regulation of shellfish sanitation. This provision also reduces burdens on the state with respect to routine inspections. The standard shall have the education and experience described in the Appendix, Attachment F. The standardization requirement may be satisfied by the standardization of a qualified employee, consultant, or agent of a tribal organization or other entity from which it may obtain the required evaluation services. A “standard” who is to provide evaluation services to a tribe must satisfy all requirements of the FDA or the NSSP which apply to state standards, including but not limited to periodic reevaluations, unless FDA determines that a particular requirement, or requirements would impair a tribe’s ability to undertake primary shellfish sanitation responsibility and can be waived without compromising public health protection. A standard shall not have any inspection authority as to an operation in which he or she has any proprietary or financial interest, employment relationship or managerial responsibility. Tribes under this Part II § A agree to obtain a state shellstock shipper or shueker/packer license and certificate of approval and state certification to the FDA for *1143inclusion on the Interstate Certified Shellfish Shippers List (ICSSL) provided that such licensing and certification shall be deemed a voluntary division of responsibility in furtherance of establishing cooperative, intergovernmental shellfish sanitation programs. Tribes and individual tribal operations obtaining a state license and certification pursuant to either this Part II, § A or the following Part II, § B shall not thereby become subject to any state shellfish sanitation laws, regulation, or enforcement authority, except as expressly provided in this Agreement. The state will not license individual shellfish operations within the jurisdiction of tribes under this Part II, § A. The names of the individual shellfish operations will appear separately on the ICSSL. Individual shellfish operations within the jurisdiction of tribes, for purposes of this Agreement, means any shellfish operation within the territorial jurisdiction of the tribe, in which the tribe or any tribal members) own an interest in excess of 50% and exercise actual management control. The tribe shall notify the state of all such individual shellfish operations. In licensing individual shellfish operations, the tribe may retain direct responsibility for compliance with specific components of Part II of the NSSP Manual. The “standard” relied on by the tribe shall inspect, evaluate and, as necessary, initiate sanctions against any shellfish operation within the jurisdiction of the tribe. The standard will perform these functions in accordance with Part II of the NSSP Manual, as provided by tribal ordinance or regulation. The standard will advise the state and FDA of his or her inspection schedule and will provide copies of all inspection reports, as well as prompt notice of any adverse action taken in regard to a shellfish operation. A state and/or FDA standard will be permitted to accompany the tribal standard on any inspection. A state standard may independently conduct only such inspections as are reasonably necessary to audit the tribal program, pursuant to Part V of this Agreement. Any dispute over whether state inspections are reasonably necessary to audit the tribal program shall be subject to dispute resolution pursuant to Part VIII, § A.3. B. State to Exercise Primary Responsibility The state will have primary responsibility for certain shellfish sanitation matters as to treaty shellfishing activities by any tribe not itself a shellfish sanitation control agency and not having primary responsibility for inspection and licensing as provided herein, unless the tribe notifies the state that the tribe chooses not to permit shellfishing for commercial purposes, does not itself engage in commercial shellfishing activities, and identifies effective tribal controls to prohibit subsistence and ceremonial harvests from being diverted to commercial use. Effective controls are described in Part III, § C of this Agreement. Primary responsibility means primary responsibility for ensuring compliance with Part II of the NSSP Manual. Accordingly, the state shall license, certify, and inspect operations over which it retains primary responsibility. The sanction, if any, against a tribe or individual tribal operation shall be limited to license denial, suspension, modification or revocation. Any action against a tribe shall be conducted as a dispute resolution pursuant to Part VIII, § A3 of this Agreement with those responsible for dispute resolution having the power to deny, suspend, modify or revoke the tribal license. License actions against individual tribal operations shall be conducted under the state administrative process. *1144C. Tribal Certification — Compliance with NSSP Manual Part II. If the state believes any tribe employing an FDA recognized standard, or any shellfish operation subject to the jurisdiction of such tribe, is out of compliance with Part II of the NSSP Manual, the state shall so notify the tribe in writing, detailing the deficiencies. A reasonable opportunity to take corrective action shall be offered, consistent with Part II of the NSSP Manual. Where consistent with the findings of a tribal standard and with Part II of the NSSP Manual, the state may, for purposes of the FDA’s Interstate Certified Shellfish Shipper’s List, withhold or withdraw the certification of an individual shellfish operation within the tribe’s jurisdiction, if the deficiencies are not corrected. The state may also initiate action under the dispute resolution provisions, Part VIII, to suspend, modify or revoke the license of any tribe employing an FDA recognized standard which fails, under this subsection, to comply or insure compliance with Part II of the NSSP Manual. D. License Fees The state shall not charge a fee for licensing any tribal treaty or individual treaty shellfishing operation as provided for in this Agreement. III. SHELLFISH SANITATION CRITERIA AND MEASURES APPLICABLE TO TREATY SHELL-FISHING ACTIVITIES A. Compliance With NSSP Manual Sufficient The parties agree that compliance with the performance criteria and other satisfactory compliance provisions set forth in the NSSP Manual, with the terms of this Agreement, and with all applicable federal laws or regulations governing shellfish sanitation, is adequate to protect public health. The tribes agree to regulate their treaty shellfishing activities, either independently or in conjunction with the state as provided herein, to maintain such compliance. Except as expressly provided in this Agreement, the state will not apply its shellfish sanitation laws, regulations, or policies to the tribes or their members. The Manual currently covers clams, mussels, oysters, and scallops. The state and tribes agree to develop, as necessary, a cooperative approach for health regulation of any shellfish species subject to the tribes’ treaty right which is not covered by the NSSP Manual. This approach shall be consistent with and modeled after the approach taken herein with respect to clams, oysters, mussels and scallops. The approach shall provide for: 1) comparable opportunities for increasing, and ultimately establishing exclusive tribal shellfish sanitation control; this includes but is not limited to primary reliance on tribal licensing, inspection, and other regulation; 2) an application of state sanitation laws to treaty shellfishing which is limited to emergency situations and those situations where a tribe has not yet developed an effective program for protection of public health; such application shall not discriminate against treaty shellfish-ing activities; 3) joint development of regulatory protocols and decisions; 4) exclusive tribal enforcement over members where a tribe has its own regulatory system in place; and 5) intergovernmental cooperation. The state and tribes shall use the process outlined in the Appendix, Attachment A to develop this approach, prioritized according to the level of health concern. Any disputes as to the state’s legal authority in regard to species subject to the *1145tribes’ treaty right and not presently covered by the NSSP Manual, including questions involving the impairment of treaty shellfishing rights, may be submitted to the federal court. Other disputes shall be resolved pursuant to the dispute resolution provisions of this Agreement. In the interim, if the state seeks to apply a state shellfish sanitation law to a treaty tribe, with respect to species subject to a tribe’s treaty right and not covered by the NSSP Manual, the state shall seek the tribe’s agreement including, where appropriate, voluntary agreement to state licensure, inspection and compliance with standards applied to non-treaty shellfishers. If the tribe objects, the state may submit the matter to the federal court for resolution, provided that Part III, § B. of this Agreement shall apply in the case of a health emergency. B. Emergencies — Additional Measures, Including Closures, Hay Be Applied To Treaty Shellfishing When Essential In Responding To A Health Emergency 1. Notwithstanding any other provision of this Agreement, the state may take summary administrative action against the tribal operation including license suspension, closing of growing areas and seizure or recall of product, in the case of a health emergency. A health emergency is a situation involving an immediate danger to the public health requiring immediate action. The state may take only such action as is necessary to prevent or avoid the immediate danger to the public health and justifies use of the emergency action. 2. The state agrees that in the case of a health emergency it will notify affected tribes of the situation and will provide available, relevant data as soon as possible. Consistent with the gravity of the health threat and the need for immediate response, the state will provide affected tribes an opportunity for prior consultation and prior technical/policy review. 3. Health emergencies may occur, for example: where established shellfish sanitation standards such as paralytic shellfish poison levels are exceeded; where harvesting areas are implicated in human illness; in the case of a catastrophic polluting event of unknown impact such as floods and oil or sewage spills; where contaminants present unknown health risks as was the case with domoic acid; where commercial shellfish operations engage in the sale of shellfish from closed areas contrary to the provisions of this Agreement; or where a tribal shellfish operation fails to meet a critical standard as defined in Part II of the NSSP Manual. 4. The state shall defer to measures adopted by a tribe to address a health emergency, where such measures would effectively protect public health. Any tribe affected by the state’s action in the case of an alleged health emergency may invoke the dispute resolution mechanism described in Part VIII, § 3 of this Agreement to challenge the appropriateness of the emergency measures, either before or after they are implemented, but such measures shall remain in effect until resolved otherwise through dispute resolution. C. Commercial Harvests From Closed Areas Shall Be Prohibited 1. A closed area is an area from which commercial shellfish harvest is not permitted under the terms of this Agreement. Each tribe will prohibit commercial harvest from closed areas and the sale of shellfish from closed areas. Sanctions authorized by tribal law for violation of such provisions shall be sufficient to deter prohibited conduct. The state and tribes agree that any harvest for human con*1146sumption from growing areas which are closed, based on a sanitary survey or marine biotoxin report, is undesirable. The state and tribes also agree that such harvest should be discouraged through educational or other means. 2. Consistent with subsistence needs for all relevant species, each tribe will impose restrictions or measures to prevent the unlawful diversion to commercial use of shellfish harvested for subsistence purposes. These could include subsistence bag limits, restricting subsistence harvest in closed areas to monitored conditions, or such other controls as are effective. The tribe shall provide the state specific descriptions of the tribe’s restrictions and/or other measures for review and comment. It is agreed that the current tribal monitoring systems and controls described in the Appendix, Attachment I, represent examples of effective restrictions or measures. Sanctions authorized by tribal law for violation of provisions established under this paragraph shall be sufficient to deter prohibited conduct. 3. Tribes will notify the state shellfish sanitation program in advance of any ceremonial harvest from closed areas which does not comply in all respects with the limitations on closed area subsistence shellfishing. The ceremonial harvests will be subject to tribal controls similar to those enacted or adopted to prevent the diversion of subsistence harvest into the commercial market. 4. If after review and comment the state does not agree that the tribe’s controls for ceremonial or subsistence harvest would be effective, the matter may be referred to dispute resolution. 5. Consistent with the limitations on the release of criminal record information and any other confidentiality requirements imposed under state law, the state shall timely notify the tribes of all citations and/or arrests for violation of RCW 69.30.110, and any other state law imposed to prevent the unlawful diversion to commercial use of shellfish harvested for noncommercial purposes, issued or made by Washington Department of Fish and Wildlife (‘WDFW”) officers and the disposition of those cases. Each tribe shall timely notify the state of all citations and/or arrests for violation of ordinances or regulations enacted or adopted under paragraphs (1), (2), and (3) of this section and the disposition of those cases, provided that the tribes shall not be required to submit information different in kind or with any greater degree of specificity or breadth of disclosure than the state submits to the tribes. 6. After reasonable notice and an opportunity to correct deficiencies, a state licensed tribe shall be subject to suspension or revocation of its license and certification for failure to reasonably prosecute tribal members for violation of ordinances and/or regulations enacted or adopted under paragraphs (1), (2), and (3) of this section or which fails to timely notify the state of arrests, citations and the disposition of such cases. Any such action to suspend or revoke a tribe’s state license shall be subject to dispute resolution as provided in this Agreement. 7. The state will not enforce the state’s presumptive commercial limit as to the exercise of treaty shellfishing rights by any member of a tribe which complies with the regulatory and enforcement provisions set forth in paragraphs (1) through (5) of this section. D. Commercial Harvests From Closed Areas Permissible If Not For Human consumption Notwithstanding Part II, § C, tribes may engage in or authorize closed area *1147shellfishing for bait, seed, or other use which does not involve human consumption, consistent with the protocols referenced in the Appendix, Attachment B. Consistent with the protocols presently developed or developed in the future, and referenced in the Appendix, Attachment A, a tribe, prior to doing so, shall prepare and submit a plan to the state for review and concurrence. The state shall complete its review of the plan within 30 days after receipt. E. Joint Identification And Development Of Protocols, Standards And Other Guidance For Implementation Of The NSSP Manual The state and tribes have identified certain elements of the NSSP Manual which they believe require agreed approaches to implementation. These include, among others, standards regarding short-term relays, the placement of sanitary lines, bait and seed harvest, and training requirements. Such shellfish sanitation considerations are addressed in the Appendix to this Agreement, which Appendix is incorporated herein by reference. The Appendix contains protocols for certain matters and procedures and timetables for completion of others. The state and tribes, by agreement, may alter, expand, or limit the measures, protocols, or other provisions set forth in the Appendix, other than Attachment A. F. Growing Area Classification/Certification The state and tribes agree that growing areas shall be classified and certified according to criteria set out in section C and other applicable portions of Part I of the NSSP Manual. Conditionally restricted and conditionally approved classifications will be utilized according to protocols agreed to by the state and tribes, which recognize budget limitations. The adoption of additional or more specific criteria and measures to implement the Manual shall be by joint agreement of the state and tribes, pursuant to Part II, § E above. The state will not, as a prerequisite to growing area classification, require a tribe to demonstrate ownership, leasehold interest, or permission from any owner, lessee, or land manager, of a growing area within the tribe’s usual and accustomed areas and any portions thereof which are not “beds staked or cultivated by citizens” as adjudicated or as agreed to by the affected parties including any affected landowners. Nor shall any review and concurrence as to a non-health related matter, such as fish resource use priorities, be a condition of such classification. The state may otherwise continue to request a demonstration of ownership or landowner permission as a prerequisite to growing area classification. It will be the responsibility of the tribe to resolve any challenge to its treaty right in a particular growing area. The state may postpone action on a classification application until the dispute is resolved. Tribal applications for the classification of new growing areas will be treated separately from nontribal applications for purposes of prioritization. The state agrees to set aside at least 50% of funds and other resources available for the classification of new growing areas for use in acting on tribal applications for the classification or reclassification of growing areas. This percentage shall be reevaluated by the state and tribes at such time as any tribe is recognized by FDA as an independent shellfish sanitation control agency. The state and tribes agree to seek additional appropriations for classifying and restoring areas identified by the tribes. For the tribes, such funding efforts may focus on increasing the ability of the tribes to gather the data and develop the evaluative *1148expertise for classification and restoration. By joint agreement among the tribes, the tribes will develop criteria for prioritization of tribal applications and identify a priority ranking, provided that, if the tribes fail to reach agreement on such ranking at a particular time, the state shall proceed to act on the applications by random selection among such tribal applications as have been filed with the department. Before initially classifying a growing area or changing a growing area classification, the state shellfish program will notify affected tribes of facts indicating that a classification may be appropriate or a classification change may be necessary. The state and tribes will jointly determine a time period for collection of pertinent information and analysis consistent with the protocol for data collection and analysis developed as indicated in the Appendix, Attachment A, Group 2(d). Following such analysis, the state shellfish program will draft a proposed classification decision and submit the draft to all affected tribes for review and comment. The tribes will provide review and comment on a proposed classification decision, if any, within thirty days. Where an immediate downgrade in classification, or a closure, is required by the NSSP Manual because of a failure to meet the minimum classification criteria of the NSSP, and where such failure does not constitute a health emergency as defined in Part III, § B of this Agreement, then the action required by the NSSP shall be taken. Prior to the action and at the earliest possible time, the state will notify affected tribes of the action and of facts the state believes demonstrate the need for the action under the NSSP. Within ten days of the action and as expeditiously as possible, the state and affected tribes will consult regarding the action and shall jointly determine the need and the time period for further investigations to confirm the failure to meet NSSP criteria. The state and tribes may agree to extend this period as appropriate. Thereafter, the downgrade or closure decision shall be subject to dispute resolution as provided in Part VIII of this Agreement. Any immediate downgrade in classification, or closure, which is required by the NSSP Manual because of a failure to meet the minimum classification criteria of the NSSP and which also constitutes a health emergency as defined in Part III, § B of this Agreement, shall be handled as such an emergency under Part III, § B. Any final decision regarding an initial classification or reclassification shall reflect a thorough consideration of all information and analysis supplied by a tribe and tribal comments, which have been timely submitted. Plans and procedures for water sampling, shoreline surveys, monitoring, and other investigative work related to the classification, reclassification, restoration, or monitoring of growing areas subject to tribal harvest shall be jointly developed and agreed upon by the state and tribes. Any tribe who wishes to participate in such investigative work may do so in accordance with the agreed plans and procedures. Such participation will be encouraged and shall be a joint and cooperative process between the tribe and state, conducted through mutual consultation and sharing of expertise. Any tribe who wishes to conduct any water quality studies or shoreline surveys, other than shoreline survey on private land outside the tribe’s reservation boundaries, may do so in accordance with the agreed plans and procedures and consistent with the expertise and training requirements provided in the Appendix, Attachments G and H. Tribes conducting shoreline surveys on private lands outside *1149their reservation boundaries will do so only in conjunction with state or county health officials. Both the state and tribes may audit the investigative work performed by the tribes for compliance with the NSSP Manual. The state or a tribe will notify affected parties to this Agreement of its intent to conduct investigative work referenced in this Agreement at least one week prior to conducting such work. The state or a tribe planning to conduct such work will notify affected parties to this Agreement of any change in circumstance requiring deviation from the plan or schedule. A telephone call shall be sufficient notice for purposes of this paragraph. Tribes who do not wish to participate in routine growing area monitoring shall advise the state that notice to them of routine monitoring is not necessary. IY. EXCHANGE OF REGULATIONS AND DATA/REPORTING ILLNESSES Except as to the issuance of regulations for emergency purposes as described in Part III § B of this Agreement, the state and tribes shall distribute among themselves for review and comment any proposed new or amended provisions of their shellfish sanitation laws or guidance. At least thirty days will be provided for review and comment of a draft. At least fifteen days will be provided for review and comment of a final proposed shellfish sanitation law or guidance. The state and tribes will also distribute any shellfish sanitation data among themselves upon request. FDA will provide the tribes copies of all NSSP Manual interpretations and Manual updates. Consistent with applicable confidentiality requirements, the state and tribes will immediately report to all parties to this Agreement information, within their possession, regarding any shellfish-related, human illness. V. STATE AUDIT OF TRIBAL PROGRAMS The state may audit the shellfish sanitation activities of tribes to evaluate compliance with this Agreement. Such audits shall consist of periodic or occasional inspections of facilities, places, or records, or interviews with persons responsible for shellfish sanitation activities. Where audit activities are conducted in person, the state auditor shall, prior to or upon arrival, identify himself or herself to the person in charge of the facility, place, or records, and notify the tribal shellfish sanitation contact identified pursuant to Part YII of this Agreement. The tribal contact or his or her designee shall have the right to accompany the auditor(s). The audit need not be delayed due to the unavailability of the tribal contact or desig-nee. Promptly upon request, the tribe shall be provided a copy of all field notes, reports, findings, conclusions, and written criteria produced during an audit or used by the state to audit tribal compliance with this Agreement. VI. ENFORCEMENT A. Nothing in this Agreement shall be construed to enlarge the authority of state officers on reservations and any Indian trust lands. Nothing in this Part VI shall be construed to pertain to, restrict or alter the enforcement of laws other than the shellfish sanitation laws of the parties. B. Each tribe shall bear primary responsibility for enforcement of shellfish sanitation laws against its members and shellfishing permittees within its reservation, any tribal trust lands, or within the tribe’s usual and accustomed areas. To the full extent permitted by applicable law, *1150each tribe shall also have primary responsibility against nonmember Indians within its reservation or on any lands held in trust for the tribe or its members. Any tribe may, at its discretion, refer to the state for prosecution in state courts any violation of tribal law which is also a violation of state law. C. The state shall bear primary responsibility for the enforcement of state shellfish sanitation laws against: 1) non-Indians; 2) any Indian where the violation occurs outside of any Indian reservation, Indian trust lands, and outside the usual and accustomed fishing places of the tribe of which the violator is a member; and 3) nonmember Indians within a tribe’s reservation or on any lands held in trust for the tribe or its members when, under applicable law, such nonmembers are not subject to the jurisdiction of the tribal court and jurisdiction lies with the state. D. It is the intent of the state and tribes that, notwithstanding the existence of comparable laws of the State of Washington, and unless provided to the contrary elsewhere in this Agreement, violations of tribal shellfish sanitation laws by members of tribes or by tribal licensees shall be prosecuted in tribal courts. E. If an enforcement officer of either the state or a tribe finds a person subject to the primary enforcement responsibility of the other entity, under Part VI, § B or § C, to be in violation of the bag limits, growing area closures, or other shellfish sanitation laws of the entity having primary responsibility, the discovering officer shall contact a law enforcement officer of the entity primarily responsible using common means of law enforcement communication such as radio over common frequency, telephone, or use of a dispatcher utilized by the party having primary responsibility. The officer having primary responsibility shall take such action regarding the offender and any associated evidence or forfeitable property as he or she deems appropriate, including arrest, citation, or requesting the discovering officer if authorized under applicable law, to detain or continue to detain the violator and to seize or retain specified evidence or property pending the arrival of the officer having primary responsibility. A state officer may hold or seize any shellfish grown, harvested, transported, shipped, processed, or sold by a treaty tribe member in violation of this Agreement. F. If an officer having primary responsibility under this Part VI cannot be contacted within a reasonable time (not less than 30 minutes), the discovering officer will take the minimum action within his or her authority which is needed to protect officer safety and to prevent the loss or destruction of evidence or of forfeitable property. Notwithstanding the previous sentence, the discovering officer shall not detain an individual longer than is allowed under the search and seizure law of the jurisdiction having primary responsibility. The officer shall, as soon as practicable, refer the matter to the enforcement supervisor of the entity having primary responsibility for prosecution under this section, together with a statement of probable cause, any physical evidence or property held or seized and not destroyed, and the custody of any persons held in connection with the violation. G. If a tribe does not have a regulatory prohibition against an activity which is in violation of the Agreement and led to a hold or seizure under § E. of this Part, the state officer may take appropriate action with regard to the product as provided by applicable state law. H. The state and tribes shall maintain a proper chain of custody of all evidence and proper receipts for any forfeitable property. *1151I. The enforcement entity having primary jurisdiction shall notify the enforcement supervisor of the discovering party, in a timely manner, of any hearing or trial date which the discovering officer must attend. The discovering entity shall make its officers available for hearings and trial, and shall provide reasonable cooperation in the prosecution. J. Where any entity has commenced a civil, criminal, or administrative enforcement action arising from a violation within the primary jurisdiction of another entity, dismissal shall be requested upon notice that the entity having primary jurisdiction has commenced an action in its own jurisdiction against the same offender and for the same incident. K. Within a reasonable time after referral of a violation, and at least semiannually, the entity having primary responsibility shall, consistent with confidéntiality requirements, notify the referring entity of the status or disposition of all referred cases, including whether and what charges were filed, the amount of any fines, and the nature of any other penalties, including permit suspension or revocation, restrictions, or probation which were imposed. L. If the entity with primary responsibility does not initiate a prosecution within a reasonable time, not less than ninety days, following referral, the referring entity, if authorized by applicable law and with the agreement of the entity having primary responsibility, may take such action under its laws, consistent with this Agreement, as it deems proper. M. All net proceeds from the sale of confiscated property shall be delivered to the entity prosecuting the case, provided that, if more than one entity initiates the prosecution, such proceeds shall be delivered to the entity having primary enforcement responsibility for the offense. N. The enforcement supervisors of the state and tribes shall meet as needed (at least annually for the first three years following the effective date of this Agreement, and thereafter at least every two years) to discuss matters related to implementation of this Agreement, including the exchange of information regarding violations, the training of officers, and the planning of joint patrols or "other joint operations. O. In addition to the cooperative procedures set forth in paragraphs (B) through (N) above, the state and tribes,agree that cross-deputization of their fisheries enforcement personnel is desirable in order to augment their respective enforcement capabilities. “Cross-deputization” means the issuance of special commissions authorizing one entity’s law enforcement officers to issue citations, make custodial arrests, and otherwise act as enforcement officers of the other entity, as specified in a cross-deputization agreement. Each tribe agrees to deputize WDFW enforcement officers to enforce tribal prohibitions on commercial harvest from closed areas, tribal bag limits, and other tribal shellfish sanitation laws adopted pursuant to Part II, § c above, provided the following conditions are met: 1. The WDFW officer satisfies the minimum criteria (other than tribal membership criteria, if any) required to be commissioned as a fisheries enforcement officer of that tribe; and 2. WDFW agrees to deputize fisheries enforcement officers of that tribe to enforce state shellfish sanitation statutes and regulations. WDFW shall not require, as a condition precedent to deputizing tribal officers, that those officers meet any more stringent criteria than are required to be a commissioned WDFW enforcement officer. *1152The state and tribes agree to use their best efforts to develop, within eighteen months after the effective date of this Agreement, a form of cross-deputization agreement that will specify procedures and requirements for cross-deputization, consistent with the terms of this Agreement, provided that tribal officers, under such agreement, are required to meet the minimum criteria required of commissioned WDFW officers and further provided that such agreement addresses the liability concerns of the state and tribes to their mutual satisfaction. VII. NOTIFICATION To comply with the various notice provisions of this Agreement, each tribe that is a party to this Agreement shall designate an individual and an alternate who shall serve as the state’s contact for purposes of notification. The state and FDA likewise shall each designate an individual and alternate who shall serve as the tribes’ contact for notification purposes. Written notice to one or the other of the identified individuals shall be construed as sufficient notice under this Agreement. Facsimile transmission may be used, so long as it is followed by delivery or mail of the original. VIII. DISPUTE RESOLUTION A. Matters reviewable Except where an alternative dispute resolution mechanism is expressly provided for in other sections of this Agreement, including the Appendix attached hereto, this section shall govern the resolution of all disputes arising from the implementation of this Agreement. Any reference to dispute resolution in a particular section of this Agreement shall not be construed to limit the availability of dispute resolution as to other matters. The parties recognize three kinds of disputes potentially arising from the implementation of this Agreement: first, those involving legal issues such as determinations of jurisdiction or interpretation of state or tribal law or of this Agreement; second, those involving the interpretation of NSSP Manual compliance standards; third, those involving the administration of shellfish sanitation programs and of this Agreement, both through the development of policies and through the application of regulatory standards in case specific situations. The parties recognize that it may, in some cases, be difficult to characterize such disputes as arise. The parties therefore acknowledge and agree that, whenever a party initiates one of the three dispute resolution mechanisms described hereunder, it shall be the right of the responding party, at the threshold, to contest the characterization of a dispute and to seek its transfer to what the responding party considers the most appropriate forum. 1. Any party to this Agreement may invoke the jurisdiction of the federal court to resolve legal issues related to the implementation of this Agreement, provided that the tribes will not challenge in court the application of the terms of this Agreement to them or their members as inconsistent with their treaty rights. 2. The FDA and the ISSC have established a mechanism for resolving ambiguities in the compliance standards set out in the NSSP Manual of Operations, using the Interpretations process. The state and tribes shall utilize this process to resolve any disputes involving ambiguities in the compliance standards set out in the NSSP Manual of Operations and the decision of the FDA shall be binding on the parties. 3. The parties recognize a difference between preliminary decisions involving the day-to-day administration of shellfish sanitation programs by the state or the tribes and which generally involve data *1153collection and preliminary analysis, and final decisions such as growing area classifications, which are based on such data and preliminary analysis. Unless provided otherwise in this or a subsequent agreement of the state and tribes, the dispute resolution process described hereunder shall be available with respect to decisions of the latter sort but not of the former. The dispute resolution process described hereunder shall also be available to review the propriety of generally applicable policies or procedures employed or proposed to be employed by the state or a tribe in the implementation of this Agreement; the failure of the state or a tribe to provide required notice to or to consult with another party; the failure of the state to follow tribally-determined growing area classification priority list; any decision of a tribe or the state, clearly made in violation of a specific prohibition or requirement of this Agreement; and any decision of a tribe or the state that would result in irreparable harm to the party seeking review. The dispute resolution process described hereunder shall also be available to resolve license actions taken by the state, as provided in this Agreement, and the decision maker shall have the authority, in such actions, to deny, suspend, modify, or revoke a license. A preliminary action not directly subject to dispute resolution shall be renewable as part of a decision, based on such preliminary action, which is subject to dispute resolution. 4. The FDA and an independent tribal SSCA having a dispute involving satisfactory compliance with the NSSP Manual which has a direct public health significance may submit the dispute for resolution through the ISSC Unresolved Issue process, provided that, after completion of that process or in lieu thereof, a tribe may, at its option, request an informal hearing, under 21 C.F.R. Part 16, subject to judicial review in accordance with the federal Administrative Procedures Act. B. Dispute Resolution Committee The state and tribes shall each appoint one individual having experience in public health and shellfish sanitation, to form the Dispute Resolution Committee. At the time of submission of a matter to dispute resolution, the state and. the tribes shall each identify a qualified member. Upon agreement of the state and the tribes, either may appoint additional qualified members of the Committee to serve in a particular case. The decisions of the Committee shall be by consensus and binding upon the state and tribes. The state or affected tribe may seek federal court review of any legal issues that remain unresolved. In the event consensus is not reached, the state and/or affected tribe(s) may request FDA, within fifteen days after conclusion of the committee process, to provide technical assistance to resolve the matter. In disputes regarding satisfactory compliance with the NSSP Manual which have direct public health significance, FDA will provide such technical assistance to the Dispute Resolution Committee. The technical assistance shall consist of expertise in public health and shellfish sanitation and the application and implementation of the requirements of either Part I or Part II of the NSSP Manual, or both Parts, depending on which Part or Parts is at issue. The technical assistance will be made available as soon as possible. If within ten days after FDA receives the request, FDA has not provided such technical assistance, any party to the dispute resolution proceeding may invoke the master expert procedure in § C. below. Any party to the dispute may also invoke the master expert procedure when consensus has not been reached either prior to or *1154following the provision of technical assistance by FDA. C. Appointment of Master Expert If the members of the Dispute Resolution Committee are unable to resolve a dispute by consensus, or if the state or any affected tribe is dissatisfied with the decision of the Committee, then such entity may, within fifteen days after the conclusion of the Committee process, give notice to FDA of its intent to utilize a master expert. FDA shall maintain a list of persons eligible to serve as a master expert, which persons shall be considered by FDA to have expertise in public health and shellfish sanitation and the application and implementation of the requirements of either Part I or Part II of the NSSP Manual, or of both Parts, depending on which Part or Parts are at issue in the dispute. In compiling the list, FDA shall seek suggestions from the tribes and the state, which may include FDA employees. The state and affected tribe(s) shall select by agreement a person from the list to act as master expert in the dispute. An FDA employee will not be used as a master expert without agreement of FDA. FDA will select a person from the list, to act as a master expert if the parties cannot agree. A non-FDA master expert shall be reasonably compensated by the non-prevailing party, provided that if the master expert’s decision is reversed, the party prevailing on appeal shall be reimbursed by the opposing party for compensation paid the master expert. The master expert shall be authorized to make a decision binding on the state and affected tribes. FDA will receive notice of the decision. FDA will have thirty days to review the decision before it becomes final and shall make, in writing within the thirty-day period, any objection it has to the decision. The master expert will be responsible for keeping minutes of any dispute resolution proceeding in which he or she is involved. Any party aggrieved by the master expert’s decision or aggrieved by FDA’s objection to the master expert’s decision, shall have the right to appeal, within thirty days, either determination to the federal court, or as otherwise provided by law. D. Review Procedure Disputes shall be submitted for review by a brief, written statement setting out the points of disagreement and the submitting party’s position and reasons. Within seven week days of delivering the statement to the decision maker(s)and to other involved parties, any other involved party may submit a written response, briefly stating its position and the reasons. The parties shall be provided an opportunity for an oral or telephonic presentation and submission of supporting documents. A written decision shall be issued within 30 days after the submission was received, provided that a decision may be postponed for a reasonable period of time to obtain additional information that is likely to aid in resolving the dispute. In an emergency, the decision may be delivered orally, with a written memorandum of decision issued shortly thereafter. In the event a matter involving an emergency has been submitted, the matter shall be determined as expeditiously as possible but no later than 3 business days after receipt by the body issuing the decision. The Committee or the master expert may adopt such additional review procedures as they deem appropriate, so long as adopted in consultation with the state and tribes and so long as consistent with the provisions of this Agreement. Within 180 days following Court approval of this Agreement, the Dispute Resolution Committee shall prepare and disseminate to the state and tribes for their comment a *1155document setting forth the review procedures contained in this Agreement and any additional, generally applicable procedures adopted. In the alternative to any other means of dispute resolution authorized by this Agreement, and absent objection by any interested party, a party may invoke the processes of the ISSC to resolve the issue. IX. CONSISTENCY OF AGREEMENT WITH NATIONAL SHELLFISH SANITATION PROGRAM/ANTI-DISCRIMINATION PROVISION In agreeing to this settlement, the United States, through the Federal Food and Drug Administration, confirms that the cooperative, intergovernmental shellfish sanitation programs provided for, and the other divisions of responsibility and authority contained herein, do not conflict with the National Shellfish Sanitation Program or current provisions of federal law applicable to shellfish sanitation. Compliance with this Agreement will not jeopardize FDA certification of the state or tribal programs or be the cause for any federal punitive action. The FDA specifically agrees not to sanction the state for any difference in the way the state treats tribal and nontribal shellfish operations, so long as such treatment is consistent with this Agreement. The FDA further agrees to counsel member states of the Interstate Shellfish Sanitation Conference (ISSC) against imposing any barrier to interstate commerce of shellfish harvested in Washington State, whether by tribes or others, because of this Agreement. X. AMENDMENTS The parties recognize that individual tribes, groups of affiliated tribes, the tribes collectively, the state or the FDA' may wish to amend this Agreement or to reach new agreements governing shellfish sanitation and, to that end, any of these entities or groups may propose an amendment for consideration by the parties. Unless the parties agree otherwise, or a compelling reason exists for more frequent amendment, proposed amendments shall be considered at an annual meeting to review the parties’ progress in implementation. Until an amendment or a new agreement is adopted by the parties, and court approval is obtained where required, this Agreement shall be binding. XL INTENT TO BIND POLITICAL SUBDIVISIONS, ETC. It is the desire of the parties to this Agreement that it shall bind all agencies, officers, boards, commissions, and political subdivisions of the parties to the greatest extent allowed by law. It is the position of the state, however, that it may lack authority to bind all its political subdivisions and, in particular, local law enforcement and prosecutors. The state shall provide a summary and a copy of this Agreement to county prosecutors, county sheriffs, and local health jurisdictions in waterfront counties and make every reasonable effort to ensure that they will conform their actions to the agreed upon scope of state authority. Nothing in this Agreement shall be deemed to bar a tribe or its members from challenging local enforcement based on treaty right violations as well as other grounds, if it exceeds the state’s authority under this Agreement. XII. JUDICIAL APPROVAL This Agreement shall become effective upon signature of the authorized representatives of the parties and approval of the Court in United States v. Washington, Subproceeding 89-3. This Agreement is not intended and shall not be construed as the admission of any party, as findings of *1156fact, conclusions of law, or the interpretation or construction of the law applicable to this case. No party shall be considered to have prevailed with respect to resolution of this issue or shall be entitled to its costs or fees. APPENDIX Attachment A Group 1 With regard to each of the following activities, the state and tribes will adhere to the protocols set forth in the designated attachments to this Appendix, as agreed mechanisms for implementing the Agreement and the NSSP Manual: a) Harvest from closed areas for bait or other use which does not involve human consumption, Attachment B, (Bait and non-consumptive use Protocol); b) Short-term relay, that is, relay in which shellfish are held in approved waters for a period of 60 days or less, Attachment C, (Short-term Relay Protocol); c) Location of sanitary lines at the boundaries of areas having different growing area classifications pursuant to Part I of the NSSP Manual, Attachment D, (Sanitary Line Protocol); d) Establishment of prohibited areas surrounding marinas and point source discharges of sewage or other contaminants, Attachment E, (Point Source and Marina Closure Protocol); e) Procedures and requirements for approval of. state or tribal agents as “standards” for the implementation of Part II of the NSSP Manual, Attachment F; and f) Minimum qualifications for personnel conducting shoreline surveys and water quality studies, Attachment G. Group 2 For the following activities, there is a need to jointly develop protocols which will insure compliance with the NSSP: a) Long-term relay, that is, relay in which shellfish are held in approved waters for a period of more than 60 days (Long-Term Relay Protocol); b) Harvest from closed areas for seed, (Seed Harvest Protocol); c) Depuration; and d) Data collection and analysis for purposes of growing area classification. The state and tribes, through the Technical Team established below, will make their best efforts to develop the protocols in this category within two years following their execution of this Agreement and its approval by the Court. The Technical Team shall meet at least once each quarter following approval of this Agreement, according to a schedule to be developed by the Team. If the Team fails to agree on a draft protocol within two years, any party who has participated in the Team may invoke the dispute resolution procedures of this Agreement. Group 3 In addition to those matters identified in groups 1 and 2 above, additional matters may come to the attention of the parties, as to which there may be a need to develop policies or protocols, in order to implement and comply with the NSSP Manual, consistent with the principles of this Agreement. The parties also recognize that retail food service regulation for public health protection is another matter which may need to be addressed as to off reservation treaty shellfish activities. If in the future, the NSSP Manual is amended to provide for additional standardized processes other than growing area classification, the parties will develop protocols to provide the *1157tribes an opportunity to obtain standardization with respect to those processes. At such time as the parties may agree, but at least every two years, policy representatives designated by each party shall meet and identify any such matters, which shall be referred to the Technical Team for action. The first such policy meeting shall occur no later than eighteen months after the effective date of this Agreement. Additional such matters may be referred to the Technical Team at any time by agreement of the state and one or more tribes. Technical Team Each tribe or group of tribes will identify a technical representative, and the state will identify one or more technical representatives, who shall constitute the Technical team. The purpose of the team is to cooperatively assemble and evaluate information regarding shellfish sanitation, and to develop proposed policies and protocols, based on sound scientific and statistical methods, to be presented to policy representatives of the parties for approval. The Team may in its discretion appoint working groups, coordinators, or other officers, and may adopt a work plan and any procedures it deems useful. Decisions of the Team shall, where possible, be made by consensus and within 30 days after a matter is presented for consideration. Where consensus cannot be achieved, the Team shall present majority and minority reports to the parties’ policy representatives for consideration. Issues which cannot be resolved by agreement of the parties’ policy representatives shall be referred to dispute resolution under this Agreement. Draft protocols and guidance based on scientific method, developed by the Team, shall become effective as to any tribe upon approval by such representatives of that tribe and of the Washington State Department of Health. Attachment B SHELLSTOCK HARVEST FOR BAIT PROPOSED REQUIREMENTS — Any person desiring to harvest molluscan shellfish for use as bait must first obtain a permit from the state or tribal regulatory authority. — Bait harvest shall only be allowed in ■ designated areas at specified times. — Bait shellstock shall be dyed with an approved dye, such as FD & C # 1 Blue, before being transferred from the harvest area, unless the shellstock remains under direct regulatory supervision until dyed. Such shellstock shall be labeled “NOT FOR HUMAN CONSUMPTION-BAIT USE ONLY.” Bait shellstock shall be stored in a location physically separated from product intended for human consumption. — Bait shellstock must be completely immersed in dye to impart a visible color to the shellstock. — All bait harvesting activities and dying of shellstock shall be done under immediate regulatory supervision. — Complete records of all bait harvesting activities shall be kept, including harvest location, date, quantity, species, and distribution of product. — Bait shellstock found in violation of these requirements shall be subject to immediate seizure and destruction. *1158Attachment C SHORT-TERM RELAYING PROTOCOL AND GENERAL REQUIREMENTS The practice of relaying involves the harvest of shellfish from polluted waters and, therefore, strict controls over the harvest, transport, laying down, surveillance, and reharvest are necessary to prevent contaminated shellfish from entering commercial channels and posing the threat of shellfish-related disease outbreaks. In addition, significant resources are required to adequately monitor relay activities. Definitions Approved Area: The classification of a shellfish growing area which has been approved by the state shellfish control agency (SSCA) for growing or harvesting shellfish for direct marketing. The classification of an approved area is determined through a sanitary survey conducted by the SSCA in accordance with Section C of Part 1 of the National Shellfish Sanitation Program Manual of Operations. An approved shellfish growing area may be temporarily made a closed area when a public health emergency resulting from, for instance, a hurricane or flooding, is declared. Commingling: The act of combining different lots of shellfish. Container: A container such as a bag, tray or float used to hold shellfish during the purification process. Container Relaying: The transfer of shellfish from restricted areas to approved or conditionally approved areas for natural biological cleansing in a container using the ambient environment as a treatment system. Department: The Washington Department of Health, Office of Shellfish Programs. Harvester: A person who takes shellfish by any means from a growing area. A harvester may be a person, firm or corporation ultimately responsible for harvest operations. Long-term Relay: A relay operation that utilizes purification times of more than 60 days. Lot of Shellfish: A collection of bulk shellstock or containers of shellstock of no more than one day’s harvest from a single defined growing area harvested by one or more harvesters. National Shellfish Sanitation Program (NSSP): The cooperative program for the certification of interstate shellfish shippers as described in the National Shellfish Sanitation Program Manual of Operations, Parts I and II. Foreign countries may participate by having an effective agreement with the FDA. Prohibited Area: State waters that have been classified by the state shellfish control agency as prohibited for the harvesting of shellfish for any purpose except depletion. A prohibited shellfish growing area is a closed area for the harvesting of shellfish at all times. Reharvester: A person, firm or corporation who reharvests the purified shellfish after relaying. The Harvester/Reharves-ter may be the same or different entities. Relaying: The transfer of shellfish from restricted areas to approved areas for natural biological cleansing using the ambient environment as a treatment system. Restricted Area: State waters that have been classified by the state shellfish control agency as an area from which shellfish may be harvested only if permitted and subjected to a suitable and effective purification process. *1159Short-term Relay: A relay operation that utilizes purification times of 60 days or less. State Shellfish Control Agency: The state agency or agencies having legal authority to classify shellfish growing areas and issue permits for the interstate shipment of shellfish in accordance with the provisions of the NSSP Manual of Operations, Parts I and II. _Responsibilities of Parties_ Dept, of Health *_Harvester_Reharvester_ Classification of the growing Complete and submit Complete and submit area._application._application.__ Review and approve the Submit Harvest Schedules. Identify Relay Site, application by the harvester._ Review and approve the Identify harvest sites. Maintain shellfish application by the identification during relay. reharvester.__ Review and approve harvest Properly label harvested Maintain records of and relay sites._shellfish._placement and reharvest. Coordinate harvest Maintain harvest records. Record environmental meas-surveillance. urements such as water temperature as required by _DOH._ Assist in and approve verifi- Submit samples as required. Sample collection as required cation studies, including by DOH. design._ Collect and analyze samples. Conduct harvest surveillance. Relay site surveillance and _security._ Interpret data._ Conduct water quality monitoring. _ Review Records._ Facilitate regulation enforcement. REQUIREMENTS FOR RELAYING SHELLFISH Administration and Permits The harvester/reharvester must complete an application for a Shellfish Operation Licence and Certificate of Approval. The harvester/reharvester must complete an Application for Relaying Shellfish. The application must be approved by the Department of Health. The relay permit shall run concurrently with the certification period (certificates expire on September 30). Copies of the relay application will be forwarded to other state agencies having an interest, such as the Departments of Fisheries, Natural Resources and Parks. The Department shall respond to relay applications within 30 days of receipt. *1160A harvest schedule, which includes specific dates and times of harvest, shall be submitted with the application. The Department must be notified of any changes to the schedule. The method of deposition of laying down of shellfish at the relay site must be outlined and approved by the Department. It should be recognized that conditions in the marine environment during certain times of the year may render the natural purification process and subsequent bacterial reductions ineffective. Low water temperature and salinities are the primary factors contributing to this effect. Therefore, the Department reserves the right to approve or deny relay permits on a seasonal basis. Approval of the relay operation may be subject to cancellation due to failure to comply with these requirements or as a result of adverse conditions at either the initial harvest site or the relay area. Monitoring and Standards The initial harvest site must be classified as Restricted or Conditionally Restricted. The relay site must be classified as Approved or Conditionally Approved. A verification study shall be performed to show that the relay is effective in reducing bacteriological contamination (see Verification Study Procedures and Monitoring Requirements for Commercial Relay Operations). The relay area must be at least 25 feet from adjacent, approved shellfish and may require greater separation as determined by the Department. Shellfish samples from both the initial harvest site and the relay area shall be maintained and furnished to be Department as required. Surveillance: Short Term A detailed surveillance plan must be submitted by the harvester/reharvester. It must specify surveillance activities to be performed by the harvester/reharvester to insure the security of relayed product for the duration of the relay. The surveillance plan will be evaluated and a determination will be made as to what Departmental resources will be expended on surveillance activities. The surveillance plan must be approved by the Department. The initial harvest site must be well defined. It shall be the responsibility of the harvester to identify the site with appropriate markers as required by the Department. The relay area must be well defined. It shall be the responsibility of the reharves-ter to identify the relay area with appropriate markers as required by the Department. Site visits may be made by Department staff to both the initial harvest site and relay area. The relay area must lend itself to effective surveillance. The harvester shall be responsible for effective supervision and management of the harvest. Supervision shall include methods to insure: 1. Product is removed only from the designated harvest site. 2. Product is transferred exclusively to the approved relay site. 3. Records of harvesters and quantities harvested are maintained. The reharvester shall be responsible for the effective supervision and management of the transport, laying down of the contaminated shellfish, relay site surveillance and security, and the reharvest of the purified shellfish. *1161The method and route from the initial harvest site to the relay site must be outlined and approved by the Department. For container relay, harvest tags stating “For Relay Only” in indelible ink must be attached to each container of shellfish to be relayed. Records All lots of relayed shellfish shall be identified by waterproof tags or labels throughout the relay process, including a specific number for each lot. However, bulk or ground relay can be marked with poles, pipes, or other suitable means. Accurate, written records shall be maintained and submitted on a monthly basis or more frequently as determined by the Department. Such records must be available for inspection by the Department at any time. Relaying records shall consist of initial harvest area location, initial harvest dates and quantities harvested, dates of placement in the relay area and quantities placed, relay area location, and dates of removal from the relay area and quantities removed. VERIFICATION STUDY PROCEDURES AND MONITORING REQUIREMENTS FOR SHORT TERM COMMERCIAL RELAY OPERATIONS A verification study is required prior to approval of relay to determine if the process is effective in reducing bacteriological contaminants. This document sets forth the procedures to be used to establish relay effectiveness, as well as the monitoring requirements necessary for approved relays. Prior to initiating a verification study, the proponent must submit a completed relay application for review by the affected tribe and the Department of Health. Approval by the Department of Health of that application is required before the study is initiated. 1. Verification study procedures. To determine relay effectiveness, at least two verification studies shall be conducted. Verification studies shall not ran concurrently, but may be initiated one week apart. A decision as to the maximum length of time the study will be run must be made prior to initiating the test relay. Shellfish test lots that do not meet the required bacteriological endpoint will be destroyed or returned to the original harvest area at the conclusion of the verification study. Verification studies shall be conducted as follows: a. Sufficient shellfish shall be harvested from the restricted area to approximate commercial relay conditions. The same relay process (bags, trays, floats, etc.) shall be used in the study as is intended for the commercial operation. b. Department or tribal staff will collect at least five representative 0-day samples from the restricted area for bacteriological analysis. c. Department or tribal staff will col- , lect at least five samples from the relayed product after seven days and five samples after fourteen days. An additional five samples will be collected at the endpoint of the relay if a prior decision- has been made to proceed with a relay longer than fourteen days. Succeeding samples may be taken at a frequency determined by the Department and the tribes. 2. Evaluation of relay effectiveness. The endpoint relay samples shall be used to establish a geometric mean for each verification study. The fe*1162cal coliform geometric mean of the endpoint relay samples shall not exceed 75/100 grams and no values shall be greater than 230 fecal coli-forms/100 grams. Both verification study lots must meet the required endpoint criteria for the relay to be approved. A decision as to whether to proceed with further verification studies in the event that the initial test relays do not sufficiently reduce contaminants shall require a comprehensive review of the proposed relay by the proponent, the Department and the tribes. All commercial relays will be required to run at least fourteen days unless sufficient data has been collected to show that a shorter time period will consistently reduce bacteriological contaminants to the required level. In no case will the required time period be reduced below fourteen days until the relay has successfully operated for at least six months. 3. Monitoring of approved commercial relays. In addition to sampling of relayed shellfish, additional water quality monitoring must be conducted at the relay site. Monthly water samples shall be collected in the relay area (at least three stations) to assure that approved area criteria are being met. The first four lots of relayed shellfish shall be sampled at the relay endpoint (at least five samples per lot). Further monitoring will be conducted as determined by the Department and the tribes. If relay times of less than fourteen days are approved, each lot shall be sampled before relay and at the endpoint, until sufficient data has been collected to justify decreasing sampling frequency. The permit to relay may be subject to cancellation if any test lot of relayed shellfish fails to meet the established endpoint criteria. A retest shall be conducted immediately if product exceeds endpoint standards. If the endpoint is exceeded in lot follow-up, an investigation will be conducted, after which a determination will be made if the relay should continue. Attachment D PROCEDURES FOR ESTABLISHING SANITARY LINES IN SHELLFISH GROWING AREAS Sanitary Lines are established in shellfish growing areas to define the location of the various harvest classifications recognized under the NSSP Manual. Factors considered in establishing such lines include the following: — Prohibited areas around point source outfalls are established in accordance with criteria set forth in Part I of the NSSP Manual (see Attachment E.l-3 for details). — Prohibited areas around marinas are established in accordance with criteria set forth in Part I of the NSSP Manual (see Attachment E-4-5 for details). — All sampling stations within areas classified as approved must meet the coliform standard based on an annual review of data. Location of the sanitary line defining approved areas is also based on sanitary survey information which describes the location of actual and potential pollution sources and their impact on the growing area. Sanitary lines are located such that they are easily identifiable (easily visible land marks, etc.) *1163— The location of shellfish resources is always taken into account when establishing sanitary lines and sampling stations to maximize resource availability. — Sanitary lines defining conditionally approved areas are based on detailed studies showing the extent of potential impact of a particular point or nonpoint source(s) on the growing area. The sanitary line is placed such that all sampling stations that meet the coliform standard when the area is open to harvest are included in the conditionally approved area. — In addition to microbiological data from marine sampling stations, consideration is given to hydrographic characteristics of the area in establishing sanitary lines. Attachment E PROCEDURES FOR ESTABLISHING SANITARY LINES AROUND WASTEWATER OUTFALLS The Shellfish Program of the Department of Health establishes Prohibited Areas around wastewater outfalls in accordance with the policy outlined in the NSSP Manual. The sections of the NSSP Manual of Operations Part I which describe the factors to be taken into consideration in the establishment of sanitary lines which define the appropriate Prohibited Area include Sections: C.2 (Classification of Growing Areas); C.3 (Approved Areas); C.4 (Conditionally Approved Areas); and C.7 (Prohibited Areas). It should be emphasized that a Prohibited Area is required adjacent to any wastewater outfall of public health significance. As stated in recent revisions of the Manual, the effectiveness of wastewater treatment processes must be considered in establishing the appropriate classification of nearby shellfish production areas. In particular, the wastewater treatment must be evaluated in terms of the minimum treatment which can be expected with the possibility of malfunctioning, overloading, or poor operations. These evaluations are conducted by the DOH Shellfish Program on a site-specific basis, through technical “reliability” evaluations of the wastewater treatment facilities. Several factors are taken into consideration by the DOH Shellfish Program in establishing the location of the appropriate sanitary lines for the Prohibited Area (and Conditionally Approved Area if applicable). The principle factors which involve operations in the treatment plant include: — effluent volume at high and/or low hydraulic loading; — bacteriological and physical quality of the effluent, and — identification of factors which can cause plant failure. In addition, the major hydrographic factors in the receiving waters which need to be taken into consideration include: — current velocity; — receiving area geometry; — direction of travel and stratification; — location of discharge; — tidal characteristics; — orientation and configuration of the outfall pipe and diffuser, and — physical characteristics of the receiving water. These factors which are listed above are usually used as input parameters in the CORMIX (Cornell Mixing Zone) modeling program, an Expert System approved by EPA for far-field modeling of effluent dispersion from outfalls. More infrequently, field studies using dye and/or drogues are *1164utilized by DOH in the establishment of sanitary lines for wastewater treatment plants. The selection of the most appropriate approach to be used is often a site-specific consideration, based on Best Professional Judgment. As stated in the NSSP Manual, the SSCA shall choose the most appropriate method in which to apply the factors previously described. These methods can include hydrographic field and/or computer models pertinent to the discharge and receiving water application. In addition, a reliability evaluation of the wastewater treatment plant should be conducted to ascertain the principle factors which involve operations at the plant and which affect the quality and quantity of its effluent. Generally, the DOH Shellfish Program assumes that the bacteriological quality of the effluent is approximated under theoretical upset conditions at the wastewater treatment plant by that of the treated-but-not-disinfected effluent. This is a conservative assumption applicable to most plants evaluated by DOH, and has been previously suggested by FDA in outfall studies. It should be emphasized that the DOH Shellfish Program generally assumes adverse conditions at the plant and in the receiving waters, rather than worst-case conditions, in assuming a theoretical condition of malfunction or poor operation at the treatment plant. This approach is similar to that used by DOE in establishing dilution zones protective of aquatic life. Hydrographic and receiving water information is usually obtained by DOH from a variety of sources. These sources include DOE-mandated mixing studies; ambient monitoring water quality data; as-built plans and field studies from the files of DOE, universities, the permittee, or consultants, and information collected by DOH and FDA. Adverse receiving water conditions are assumed in the CORMIX model iterations. The sanitary line for a wastewater discharge is established at the location where the water quality is projected to meet the shellfish water quality standard of 14 fecal coliforms/100 ml. In certain situations, depending upon the location of the nearest shellfish resource, no Conditionally Approved Area may be needed to meet this criteria. In such situations, the water quality standard is required to be met at the edge of the Prohibited Area. In other situations, a Conditionally Approved Area is required adjacent to the Prohibited Area. In these situations, the Prohibited Area serves to provide a transport or transit time, for notification of any plant upset to DOH. DOH is then responsible for notifying any commercial shellfish producers in the affected Conditionally Approved Area, and to temporarily close down harvesting of shellfish in the Conditionally Approved Area. The cooperation of the treatment plant operators and all certified growers in the Conditionally Approved area with DOH is required for this classification. PROCEDURES FOR ESTABLISHING SANITARY LINES AROUND MARINAS The shellfish closure zones around marinas will be established in accordance with the policy outlined in the current NSSP Manual. As currently stated in the Manual of operations Part 1, Section C.9: Determining the impact to adjacent waters will be based upon a dilution analysis for the marina which incorporates the following assumptions: i. an occupancy rate of the marina; ii. an assumed rate of boats which will discharge untreated water; *1165iii. an occupancy rate of two (2) persons per boat; iv. a rate of discharge of 2x109 fecal coliforms per person per day; v. wastes are completely mixed in and around the marina; vi. closure is based upon a theoretical calculated fecal coliform of 14 MPN per 100 ml; and vii. closure is based on the volume of water in the marina. These assumptions are incorporated into the shellfish closure zone analyses conducted for marinas by the DOH Shellfish Program. To facilitate and promote the application of these assumptions for specific marina evaluations, the DOH Shellfish Program uses the Virginia Institute of Marine Sciences (VIMS) computer model, which was obtained from FDA staff. The VIMS model incorporates the specific assumptions listed in the NSSP Manual in Section C.9. The occupancy rate of a marina is deemed to be the actual (rather than potential) occupancy of the marina during high usage periods, unless a boat count is unavailable. The assumed rate of boat discharge generally applied in marina evaluations is: 50% for recreational craft in marinas without boat waste pumpouts; 30% for recreational craft in marinas that have boat waste pumpouts, and 10% for commercial boats or boats that have long-term moorage but are infrequently used or occupied. However, as noted in the NSSP Manual, site-specific considerations using Best Professional Judgment can and should be used by the SSCA with respect to sanitary significance relative to actual or potential contamination. The shellfish closure zone for a marina may be seasonal in nature, based upon the high-use season evidenced at the marina. For example, the high use season may be during fair-weather months of the year for recreational boats, or during commercial seasons for commercial craft. The sanitary line for the shellfish closure zone is established at the location where the model indicates that the water quality meets the standard of 14 fecal coliforms/100 ml. Attachment F MINIMUM QUALIFICATIONS FOR STANDARDIZED SHELLFISH INSPECTORS STANDARDIZED INSPECTORS MUST HAVE A BACKGROUND IN PUBLIC HEALTH THAT INCLUDES EXPERIENCE IN INSPECTION ACTIVITIES AND A GENERAL KNOWLEDGE OF MICROBIOLOGY AS IT RELATES TO FOOD SERVICE SANITATION. GENERAL REQUIREMENTS: A Bachelor’s degree in public health, environmental health or closely allied field and 2 years experience in a public health or environmental health position, including at least one year experience in food service inspection. Specific training by the Food and Drug Administration and certification as a Standardized Shellfish Inspector is also required. This process includes classroom type instruction for a 4 to 5 day period and joint field inspection activities that may require several months to complete. Field verification inspections and other FDA required training is periodically necessary in order to maintain “standard” status. TYPICAL DUTIES: Plans, organizes, and directs the shellfish dealer inspection program. Conducts inspections and determines compliance with national standards and state or tribal regulations as appropriate. Initiates enforcement action as needed. Provides technical review of plans for. new construction or *1166remodeling of facilities. Serves as a consultant to shellfish dealers on matters relating to plant sanitation and handling of shellfish. Provides liaison and coordination with FDA, tribal, state and local agencies. Attachment G MINIMUM QUALIFICATIONS FOR CONDUCTING WATER QUALITY STUDIES WATER QUALITY STUDIES ARE A KEY COMPONENT OF GROWING AREA CLASSIFICATION THAT REQUIRE AN UNDERSTANDING OF INDICATOR ORGANISM BEHAVIOR IN THE MARINE ENVIRONMENT. PERSONS INVOLVED IN STUDIES MUST HAVE A WORKING KNOWLEDGE OF SAMPLING PROGRAM DESIGN, HYDROGRAPHICS, MARINE MICROBIOLOGY, AND THE FATE OF POLLUTANTS IN THE MARINE ENVIRONMENT. PERSONNEL REQUIREMENTS FOR WATER QUALITY STUDIES: WATER QUALITY LEAD WORKER: A Bachelor’s degree in environmental or physical science, natural science, environmental planning, or other closely allied field and 2 years experience in environmental monitoring, environmental health or environmental planning. Specific training in water quality monitoring design, sampling procedures, and operation of watercraft is also required. TYPICAL DUTIES: Plans, organizes and conducts water quality studies in shellfish growing areas. Establishes sampling stations, identifies growing area boundaries, and collects water samples and other environmental data. Organizes data and prepares reports of findings. Trains lower level staff in proper sampling technique, equipment operation, and boating safety procedures. WATER QUALITY ASSISTANT: Previous experience as an environmental technician or field work related to one of the natural sciences and specific training in water sampling techniques and watercraft operation. TYPICAL DUTIES: Assists the lead worker in conducting water quality studies in shellfish growing areas. Collects samples and environmental data and records information. Operates watercraft and other sampling equipment. Attachment H MINIMUM QUALIFICATIONS FOR CONDUCTING SHORELINE SURVEYS SHORELINE SURVEYS ARE A KEY COMPONENT OF GROWING AREA CLASSIFICATION THAT REQUIRE A THOROUGH KNOWLEDGE OF NON-POINT POLLUTION AND ITS IMPACT ON MARINE WATERS. PERSONS INVOLVED IN CONDUCTING THESE SURVEYS MUST HAVE A PUBLIC HEALTH BACKGROUND INCLUDING EXPERIENCE IN ENVIRONMENTAL HEALTH OR ASSESSMENT, AND A GOOD UNDERSTANDING OF ON-SITE WASTE DISPOSAL, POLLUTION TRANSPORT MECHANISMS, AND BASIC MICROBIOLOGY. PERSONNEL REQUIREMENTS FOR SHORELINE SURVEYS: SHORELINE SURVEY LEAD WORKER: A Bachelor’s degree in public health, environmental health or allied science and 4 years experience in a public health or environmental health position, including at least 2 years of field experience evaluating nonpoint water pollution sources and 1 year evaluating or designing on-site sewage systems. *1167TYPICAL DUTIES: Plans, organizes and conducts the shoreline survey component of sanitary surveys in shellfish growing areas. Trains and directs lower level staff in conducting surveys. Evaluates completed survey documents and develops final report recommendations. Coordinates program activities with state, federal, tribal and local agencies. Provides technical support and consultation on nonpoint pollution and shellfish sanitation. SHORELINE SURVEY ASSISTANT: A Bachelor’s degree in environmental or physical science, natural science, environmental planning, or other closely allied field and one year of experience in environmental analysis, environmental health, or environmental planning. Specific training or experience in evaluating nonpoint water pollution sources and on-site systems is also required. TYPICAL DUTIES: Assists the lead worker in conducting shoreline surveys of shellfish growing areas. Assesses sources of point and nonpoint pollution, prepares reports and maps of findings and assists in conducting special studies as required. Collects environmental samples as needed. Attachment I EXAMPLES OF EFFECTIVE TRIBAL PROGRAMS TO PREVENT SALE OF CEREMONIAL AND SUBSISTENCE HARVEST The following procedures are agreed to be effective tribal means of preventing the sale of clams, oysters, mussels and scallops (hereinafter “shellfish”) taken in tribal ceremonial and subsistence (C & S) fisheries. I.EXAMPLE ONE 1. All areas fished by the tribe shall be closed to all harvest of shellfish, unless opened by tribal regulation. 2. Each regulation opening an area of tideland shall state the dates and times of both opening and closure, and the species to be available for harvest. Each such regulation shall also identify the harvest area as precisely as practicable, for example, by use of a unique six digit Beach Identification Number (BIDN) assigned by agreement of the tribe and the State of Washington. The BIDN or other harvest area identification shall identify a relatively small area sharing a common growing area classification and common water quality conditions. 3. The tribe shall maintain a toll-free phone number with a recorded message regarding current and upcoming openings and closures, or shall maintain another effective method of providing up to date opening and closure information to harvesters. 4. One or more tribal personnel (“monitors)”) shall be present at the growing area throughout every commercial opening, but shall not engage in harvesting. No product shall be allowed to leave the growing area during a commercial opening without inspection by a tribal harvest monitor, who shall prepare a contemporaneous record showing the name of the tribe and a unique identifier of the tribal harvester; the BIDN or other unique growing area identification; the species and estimated quantity of harvest; and the date of harvest. The tribe shall maintain all such records in its custody. 5. To facilitate the detection of sale of shellfish taken in a C & S fishery, the tribe shall require that, upon sale of any shellfish, a record of the transaction shall be completed which includes the shellstock shipper license number of the tribe, tribal organization, or tribal member engaging in the harvest; the BIDN or other unique *1168growing area identification number; the species and quantity sold; and the dates of harvest and sale. Where harvest is by a person who does not personally have a shellstock shippers license, the record shall also show the unique identifier of the harvester. A copy of the transaction record shall be distributed to the tribe as soon as possible. 6. Tribal fisheries enforcement officers patrol growing areas subject to tribal jurisdiction, conduct routine, scheduled patrols of areas that are open for any type of shellfish harvest, and investigate reported or suspected violations. 7. Tribal law specifies that no more than the following quantities of shellfish may be taken by a tribally-lieensed harvester in one day for ceremonial or subsistence purposes without a special permit: a)Native littleneck clams, butter clams, cockles, and manila clams in any combination: fifty pounds in shell; b)Horse clams: fifty clams; e)Oysters: twenty count; d)Geodueks: six geoducks; e)Mussels: ten pounds in shell. 8. The above bag limits may be exceeded by special ceremonial or subsistence permit, issued to the harvester by the tribe prior to harvest, which state the place and time at which harvest will be permitted, the species and quantity that can be taken, and the name of the harvester. II. EXAMPLE TWO 1.Tribal regulations that govern tribal ceremonial, subsistence, and commercial fisheries are enforced by tribal enforcement staff conducting routine scheduled patrols of growing areas subject to tribal jurisdiction and investigating reported or suspected violations. 2. Tribal ceremonial shellfisheries are discrete in time and place and are opened by tribal regulation as provided for in the individual tribe’s fisheries ordinance. Tribal regulations opening a ceremonial shellfishery designate the catch area and specific beach opened for harvest, the species to be harvested, the gear restrictions, date and times of opening and closure, a limited number of tribal members authorized to participate in the ceremonial fishery, the target harvest quantity and the reporting requirements. The designated tribal members participating in the fishery are required by regulation to report the harvest quantity to the tribal fisheries office within 24 hours of the close of the fishery. Records of time, place, and quantity of harvest are maintained by the tribal fisheries office. 3. Tribal subsistence shellfisheries are controlled by tribal annual and emergency regulations. Any beáches in the treaty area and subject to tribal harvest may be opened for tribal subsistence harvest, except those beaches closed for human health protection or for resource protection needs. Subsistence fishery daily bag limits per fisher are as follows: a) Littleneck, manila, butter, soft-shell: 50 pounds combined, of which there can be no more than 25 pounds combined total of littleneck and manila clams b) Horse: 50 clams c) Geoduck: 6 clams d) Cockle: 50 clams e) Mussel: 40 pounds *1169f) Oyster: 100 oysters 4. Management provisions that govern the commercial fisheries can prevent the sale of non-commercial harvest. Commercial clam and oyster harvests are managed by specific beach openings and closures using emergency tribal regulations. Catch is accounted for primarily by an on-the-beach monitor who records information contained on the attached harvest monitor form. The tribe maintains all such records of commercial catch. At the time of sale, all tribal commercial catches are recorded on fish receiving tickets which are compiled, summarized and entered into a data base which is maintained at the tribal fisheries office. CONSENT DECREE Subproceeding No. 88-1 (November 28, 1994) BARBARA J. ROTHSTEIN, District Judge. I. Nature of Dispute In their Request For Determination Re: Regulation Of Boats Used In The Treaty Fishery, the Plaintiff Tribes claimed that their treaty fishing rights exempt them and their members from state taxation/fees and certain other regulation of their ownership and use of treaty fishing boats, specifically, the ad valorem (personal property) tax imposed on .boats by Wash. Rev.Code § 84.40.065, the watercraft excise tax imposed by Wash. Rev. Code ch. 82.49, and the vessel registration and fee requirements of Wash. Rev.Code ch. 88.02. By regulation, Wash. Adm.Code 308-93-160, the State exempts from the excise tax imposed by ch. 82.49 RCW boats which are owned by Indians living on the reservation governed by the Tribe in which they are enrolled. However, the state law does not currently recognize an exemption for treaty tribe members whose principal residence is outside their tribe’s reservation. The watercraft excise tax exempts watercraft exclusively used for commercial fishing purposes but is otherwise deemed applicable by the State to other treaty fishing activities. The State has also claimed that treaty fishing boats other than commercial boats documented by the Coast Guard under 33 C.F.R. § 173.11(e), or otherwise exempt by federal regulation, must be registered by state and federal regulation, display a state-issued number and decal, and that the state registration fee must be paid. Wash. Rev.Code § 82.49.030 currently provides that payment of the watercraft excise tax is a condition of obtaining a state vessel registration, number, and decal. The Plaintiff Tribes impose, their own treaty fishing rights-related taxes and, consistent with various orders by this Court, maintain their own vessel registration requirements for boats used in their treaty fisheries. By the terms of the parties’ Settlement Agreement, the State has agreed not to apply its personal property and watercraft excise taxes to boats owned by the Tribes or their members and used in the exercise of treaty fishing rights, as to each tribe that has a treaty fishing rights-related tax. The State will refund any state taxes paid on such boats as provided in the Settlement Agreement. In respect to boats used in the exercise of off-reservation treaty fishing rights, the Tribes and the State have agreed to an intergovernmental, cooperative registration procedure and to access by, or release *1170to, specified state, federal, foreign, and tribal law enforcement of tribal and state registration data, consistent with confidentiality protections. Without any of the parties conceding the merits of any contrary legal position in this dispute, it as agreed as follows. II. Parties A. This Consent Decree is entered into by and between the plaintiffs United States of America, Hoh Tribe, Jamestown S’Klallam Tribe, Lower Elwha S’Klallam Tribe, Lummi Nation, Makah Tribe, Muck-leshoot Tribe, Nisqually Tribe, Nooksack Tribe, Port Gamble S’Klallam Tribe, Pu-yallup Tribe, Quileute Tribe, Quinault Indian Nation, Sauk-Suiattle Tribe, Skokomish Tribe, Squaxin Island Tribe, Suquamish Tribe, Swinomish Indian Tribal Community, Stillaguamish Tribe, Tulalip Tribes, Upper Skagit Tribe, and Yakama Indian Nation, defendant the State of Washington and defendant state officers (“the state defendants”), all of whom, plaintiffs and defendants, are referred to hereinafter as “the parties”. B. Plaintiff Tribes are federally-recognized Indian tribes. The Plaintiff Tribes, or other tribes or bands of which the Plaintiff Tribes are successors-in-interest, are parties to treaties with the plaintiff United States executed by their representatives in the 1850’s, each of which reserves to the Tribes, in substantially identical language, “the right of taking fish, at all usual and accustomed grounds and stations .... ” See, e.g., Art. III, Treaty of Medicine Creek, 10 Stat. 1133; Washington v. Fishing Vessel Assn., 443 U.S. 658, 662 n. 2, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). C. The specific state tax laws at issue and the registration and registration fee provisions are administered by the Washington Department of Revenue and the Washington Department of Licensing, and enforced by the defendant State of Washington through the Departments of Revenue, Licensing, Fish and Wildlife, and local governments. D. The interests of the United States, including the Coast Guard, have been represented by the undersigned attorney of the United States Department of Justice. III. Covered Claims A. As used in this Decree, “covered claims” means the claims set forth in the Request for Determination in this subpro-ceeding No. 88-1. These claims are generally described in part I, above. Covered claims include claims and defenses to those claims. They include all claims and defenses which could have been adjudicated in this subproceeding as to the taxes, fees and registration requirements in dispute, had it been prosecuted to final judgment. For the purpose of determining whether claims could have been adjudicated, reference shall be made to the facts and allegations made in the documents filed with the Court in this subproceeding prior to the date of entry of this Decree. B. Without admission or adjudication of any covered claim, and without waiving any objection, claim, or defense with regard to claims other than the covered claims, the parties have agreed that, in settlement of the covered claims, the state will not impose its ad valorem property and watercraft excise taxes upon the ownership or use of treaty fishing boats so long as the affected Tribe imposes a treaty fishing rights-related tax. *1171C. The parties agree that the covered claims raise matters of sovereign interest, and that their settlement of the covered claims as set forth in this Decree is fair, adequate, reasonable, equitable and in the public interest and is made in good faith after arms-length negotiations, and that entry of this Consent Decree is the most appropriate means to resolve the matters covered herein. NOW, THEREFORE, before the taking of any testimony, before the adjudication of the covered claims, and without admission of any issue of law, fact, or liability by the parties, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: IV. ORDER A. The Court has jurisdiction over the subject matter of the covered claims and over the parties pursuant to 28 U.S.C. §§ 1331, 1345, and 1362. Plaintiffs assert that the Court also has jurisdiction pursuant to 28 U.S.C. § 1343(a)(3) and this Court’s continuing jurisdiction as declared in ¶ 24 of the Declaratory Judgment and Decree of February 12, 1974, 384 F.Supp. 312 at 408, and ¶ 25 of the Court’s March 22, 1974 Permanent Injunction, 384 F.Supp. at 419, as modified by the Court’s Order Modifying Paragraph 25 of Permanent Injunction (August 23, 1993). All parties to this Decree, for purposes of the entry and enforcement of this Decree, waive all objections and defenses they may have to the jurisdiction of the Court, or to venue in this District, or to service of process prior to the entry of this Decree but not afterwards. B. The provisions of this Decree shall apply to and be binding on the parties, their agencies, subdivisions, boards, and commissions, all agents and officers thereof, and all successors and assigns of all such entities and individuals; and each of them are hereby enjoined to comply with the provisions of this Decree. C. The attached Settlement Agreement is hereby incorporated by reference and made a part of this Decree as if fully set forth herein. D. Except as specifically provided for otherwise in the Settlement Agreement, the plaintiffs covenant hot to sue or to take any other judicial or administrative action against any state defendant, and the state defendants covenant not to sue or to bring any type of judicial or administrative action against any plaintiff, or against any member of a Plaintiff Tribe, for covered claims or for any claims relating to or arising from the filing and litigation of the covered claims and the negotiation, terms, approval and implementation of this Decree. Should a state or tribal governmental entity, or a federal agency, enact, revoke, or amend a statute or regulation which action a party deems to be inconsistent with this Consent Decree or with the Plaintiff Tribes’ treaty fishing rights as they pertain to the issues in this subproceeding, then, after complying with the dispute resolution process of § VII of the Settlement Agreement, any party may seek judicial relief to determine whether such change violates the Consent Decree and/or the Tribes’ treaty fishing rights. The parties acknowledge that Congress may alter the law from that in effect at the time of entry of the Consent Decree. If it is claimed by a party that Congress, subsequent to the entry of this Decree, has effectuated a change in the jurisdictional relationship of the parties so as to extend, limit, or otherwise modify the Tribes’ treaty fishing rights or the author*1172ity of any other party as to the covered claims, then, after complying with § VII, the party may seek a judicial determination from this Court of whether the Congressional action or any proposed action of a party based thereon would be permitted by law notwithstanding the provisions of this Consent Decree, and whether recision or modification of the Consent Decree is accordingly required. E. Each undersigned representative of the parties certifies that he or she is fully authorized to enter into the terms and conditions of the Decree and to legally execute, and bind such party to, the Decree. F. Except as provided in ¶ IV.D. of this order, the terms of this Decree may be modified only by a subsequent written agreement executed by all the parties and approved by the Court. The Settlement Agreement portion may be modified as provided in ¶ IV.D. of this order, or as provided in the Agreement. G. This Consent Decree shall be effective upon the date of its entry by the Court. H. The Court shall retain jurisdiction for purposes of entering such further orders as may be appropriate for the construction, implementation, enforcement, or modification of the Decree. In the event that the jurisdiction retained in this paragraph, or the continuing jurisdiction of the Court over Civil No. 9213 or over this subproceeding, is terminated, this Decree shall be enforceable in the same manner as any final judgment and order of the Court. By signature below all parties consent to entry of this Decree as an Order of the Court. Stillaguamish and Upper Skagit Tribes /s/ Jeffrey O.C. Lane Karl Hausmann Assistant Attorneys General for the State of Washington, Representing the State N Daniel A. Raas Attorney for the Lummi Nation /s/ Annette M. Klapstein Attorney for the Puyallup Tribe la/ Mason D. Morisset Attorney for the Tulalip Tribe /s/ Richard Berley Attorney for the Makah Tribe M/ Sharon I. Haensly Attorney for the Swinomish Tribal Community /s/ Kathryn Nelson Co-Attorney for Port Gamble, Jamestown and Lower Elwha S’Klallam Tribes and the Skokomish Tribe M Peter C. Monson United States Department of Justice /s/ Nettie Alvarez Attorney for the Hoh Tribe /s/ Jack Fiander Attorney for the Yakama Indian Nation /s/ Richard Reich Attorney for the Quinault Indian Nation /s/ Robert L. Otsea Jr., Attorney for the Muckleshoot Indian Tribe *1173/s/ John Sledd Attorney for the Suquamish Tribe /s/ Bill Tobin Co-Attorney for the Nisqually Tribe /s/ Steven G. Lingenbrink Attorney for the Quileute Tribe /s/ Jeffrey Jon Bode Co-Attorney for the Nooksack Tribe /s/ Kevin Lyon Co-Attorney for the Squaxin Island Tribe UNITED STATES V. WASHINGTON, NO. 9213, SUBPROCEEDING NO. 88-1 STATE TAXATION AND REGULATION OF TREATY FISHING BOATS SETTLEMENT AGREEMENT I. Nature Of Dispute/Scope Of Agreement A. The below signatory parties hereby agree to settle this subproceeding subject to the terms and conditions herein. B. The Plaintiff Tribes claim that the state tax/fee and registration requirements, which are the subject of their Request For Determination Re: Regulation Of Boats Used In The Treaty Fishery, unlawfully infringe upon their federally secured treaty fishing rights. The State does not concede that the imposition of such requirements upon the subject boats constitutes such an infringement. Nothing herein shall be deemed to adjudicate the merits of the claim that the Tribes’ treaties and other federal law immunize members of tribes with federally secured fishing rights from state taxation and vessel registration. No provision of this Agreement shall be construed to concede the correctness of any argument, claim or defense in support of state authority over the Tribes and their members, or to constitute consent to any state jurisdiction. Similarly, the State’s agreement to settle shall not be deemed an acknowledgment by the State of the correctness of the Tribes’ claims. Nothing herein shall be deemed to adjudicate the merits of the State’s claims that it has the jurisdiction and authority to impose a. tax upon vessels used by the Tribes or their members, off reservation within the State, even if used in the exercise of tribal treaty fishing rights and to require registration of all such vessels used within the State. The State does not concede that it lacks jurisdiction to register and otherwise regulate treaty fishing boats. For purposes of this settlement, the terms “boat(s)” and “vessel(s)” have been used interchangeably and shall be considered synonymous. C.The State recognizes that Tribes who are parties to United States v. Washington currently impose various taxes related to treaty fishing and that Tribes also require their members to register their boats for use in the treaty fishery. II. Taxation A. The State agrees that state ad valo-rem property and watercraft excise taxes shall not be imposed upon any boat owned by a tribal member(s) and used in connection with the exercise of federally secured fishing rights, so long as the member’s tribe imposes a treaty, fishing rights-related tax. The taxes also shall not apply to tribally owned boats used in connection with or in activities related to the exercise of tribal fishing rights, including but not limited to, management, regulation or enforcement thereof. The State shall direct that no action be taken by the State, coun*1174ties or other subdivisions to collect the subject taxes, including interest and penalties thereon which may have been deemed to accrue, from members of Tribes holding adjudicated treaty fishing rights and imposing a treaty fishing rights-related tax. If a signatory Tribe determines to discontinue imposing a treaty fishing rights-related tax, and the State thereafter attempts to assess a state tax, the Tribe may challenge in this Court the taxation as infringing on its treaty rights. B. This settlement shall be retroactive in its effect. The State, including but not limited to its counties and other political subdivisions, shall not attempt to collect, enforce, or otherwise give effect to any prior alleged obligation, claim, assessment, or assertion by the State that a tribal member was required to pay the subject state taxes during any year in which that member was authorized by his or her Tribe to use his or her boat in connection with the exercise of the Tribe’s adjudicated, federally secured right and when the Tribe had a treaty fishing rights-related tax. C. Within 45 days of the Court’s approval of this Settlement Agreement, each Tribe shall provide the State with a list of fishers (including owners) and their boats against whom or which any tax that is the subject of this Agreement has been assessed or levied. The Tribe shall certify that the boats on the list are subject to this Agreement. Immediately after the State has received a Tribe’s list, the State shall determine whether there is information in its possession, other than the off-reservation residence of an owner or vessel, which is at variance with information on the Tribe’s list. The State shall then forthwith cause all assessments or levies issued against the listed fishing boats owned by members of any Plaintiff Tribe, with respect to which no pertinent conflict in information exists, to be withdrawn and abated. If information in the possession of the State conflicts with information contained in a Tribe’s list, the State and the Tribe shall immediately confer to resolve the conflict. In the absence of resolution, the matter shall be referred for dispute resolution pursuant to § VII. of this Agreement. The State shall also review its records using its best efforts to identify whether there are any additional, identifiable tribal members or treaty fishing boats against whom a tax subject to this Agreement was levied or assessed. The State shall withdraw and abate all such additional assessments and levies upon determining that such tribal members or boats are not subject to tax under the provisions of this Agreement. D. The State shall with respect to any taxes for which the levies or assessments have been withdrawn or abated, cause to be withdrawn or released any recorded liens evidencing such outstanding taxes and will record that documentation as is permitted to confirm such withdrawal or release. E. The State shall proceed in like manner upon the receipt of an additional list(s) from a Tribe or upon request of a boat owner or fisher who is a tribal member. F. Notification to the State for purposes of this provision shall be made to: Special Programs Division Washington State Department of Revenue P.O. Box 47472 Olympia, WA 98504-7472 G. Tribal members shall be entitled to a refund from the State of any tax paid pursuant to Wash. Rev.Code ch. 84.40 or Wash. Rev.Code ch. 82.49, upon submission of evidence that the person seeking the refund paid the tax or is a successor or *1175assign of such person. Additional evidence shall be submitted which establishes that at the timer of payment, the member’s Tribe had a treaty fishing rights-related tax and the member was authorized by the Tribe to fish in accordance with the Tribe’s treaty right. Refunds shall be payable with respect to (1) ad valorem property taxes paid pursuant to Wash. Rev.Code ch. 84.40, for 1988 and any tax periods subsequent thereto; and (2) watercraft excise taxes paid pursuant to Wash. Rev.Code ch. 82.49 for 1984, and any táx periods subsequent thereto. III. Boat Registration A. Certain' tribal and treaty fishing boats are not subject to state registration as a matter of state law because they are documented, primarily commercial vessels, or otherwise exempt, although such boats may be subject to tribal registration and numbering requirements under applicable tribal law. See, Wash. Rev.Code § 88.02.030. Nothing in this Agreement shall act to affect any boats or the owners of any boats which are not the subject of this proceeding, including boats or owners to the extent they are exempt from the state tax and/or registration provisions at issue based on use exclusively within a Plaintiff Tribe’s reservation. B. State registration, numbering, and fee requirements otherwise applicable to a non-treaty boat, also shall not be applied to any other tribally owned boat and any boat owned by a tribal member(s), which is used in the exercise of treaty fishing rights and tribally registered as provided in this Decree. As required by this Decree, a vessel number conforming to the specifications of 33 C.F.R. §§ 173.27 and 33 C.F.R. 174.23, and a certificate of number conforming to 33 C.F.R. 174.19, shall be assigned, and a “decal” [i.e., annual registration sticker] shall be issued for such boat and displayed provided that, upon agreement of the Coast Guard and Tribes, different specifications may be established for the treaty fishing vessels. C.Each Tribe shall be entitled to a block of numbers with a unique tribal suffix. Each Tribe may select a unique, three letter suffix for its state or tribally produced vessel number, which conforms to 33 C.F.R. 174.23, unless otherwise agreed by the Coast Guard. The vessel numbers shall otherwise be of the same size and placed in the same location as specified for those boats registered under RCW ch. 88.02. The decal may also be unique to each Tribe or group of Tribes, so long as otherwise conforming to Coast Guard specifications regarding size and color now contained in 33 C.F.R. § 174.15. Other than a decal, the State does not issue a plaque, sticker, or other form of number or annual registration to affix to a numbered vessel. Such items are privately manufactured. Any or all of the Tribes may produce their own vessel numbers and/or decals, provided that each vessel number shall have a “WN” prefix and conform to Coast Guard specifications as to the form of numbering, number placement, and decal placement, except as otherwise agreed to by the Coast Guard and Tribes. A Tribe may choose to use state decals, issued by the State. Within 90 days of the signing of this Agreement, or by January 1,1995, whichever comes first, and prior to June 1st of each year for which new or renewed registrations are required by the terms of this Agreement, the State will provide each Plaintiff Tribe a list of vessel numbers, and state decals if the Tribe so requests, in the quantity, and with any particular three-letter suffix specified by the Tribe conforming to 33 C.F.R. 174.23 or as otherwise agreed by the Coast Guard. Such quantity shall be sufficient *1176to enable each Tribe to issue a vessel number to each of its tribal fishers for the boat(s) they use in the treaty fishery, when required by this Decree or tribal law. Notwithstanding the foregoing, the State need not provide a Tribe the list and decals sooner than thirty (30) days after the Tribe has advised the State of its number and decal requirements. D. Tribal and treaty fishing boats shall be deemed by the State and Coast Guard to be properly registered so long as the following conditions are met: 1. the individual tribal member has provided the Plaintiff Tribe of which he or she is a member, on forms to be satisfactory to both the Plaintiff Tribes and the State, information listed below in § P; and 2. the appropriate Tribe has approved registration of the boat and so advised the State on agreed forms which shall contain all the information about the vessel and its owner which the Tribe is required to collect under § F of this Agreement. E. The registering Tribe may issue a vessel number from the list obtained from the State, upon tribal approval of a tribal member’s registration application; and such registration, which shall be for a term of one year, shall be in immediate effect and remain in effect until suspended or revoked by the Tribe, or until it expires, unless through dispute resolution and/or the processes in § H below, it is determined that the registration should be withdrawn. This shall not preclude the issuance of additional numbers by a tribe for a treaty fishing vessel, consistent with number placement limitations. A record of the registration shall be entered as soon as possible into the agreed computer data base, as provided in § K below. F. Each Tribe shall collect the information listed in 33 C.F.R. § 174.17, for each boat registered by it. A copy of that list is appended and identified as Attachment A. G. Each Plaintiff Tribe shall forward the agreed upon forms and documentation to the State along with the necessary documents within five working days after approval of the registration. The State shall designate one office in the Olympia office of the Department of Licensing which shall process all forms under this Agreement. H. The Department may object to and/or seek revocation of tribal issuance of a registration only if it appears that (1) inaccurate or false information has been submitted; (2) information listed in § F has been omitted; (3) or the Department obtains information that the vessel is stolen or otherwise not beneficially owned by the registrant(s). The notice shall be served personally or sent by certified mail, return receipt requested, from the state to the appropriate Tribe. The Tribe shall within thirty days of receipt, provide the information requested, take the requested action, clarify any misunderstanding or inform the State that the Tribe does not intend to take the action requested or provide the requested information. Nothing in this Agreement shall bar the State from requesting correction of inaccurate information or revocation of a tribally issued registration and number at any time should information demonstrate that the information originally submitted was false or inaccurate, or that the vessel is stolen or not beneficially owned by the registrant. The registrant and Tribe shall have a reasonable opportunity to correct inaccurate information. I. Nothing herein shall act to revoke, nor shall any Tribe be required to revoke, the registration, number and boat decal issued by the Tribe to the tribal member *1177until the State has exhausted all dispute resolution procedures under this Agreement. If the State establishes that the registration is improper, the Tribe shall revoke the registration, plaque, and decal. J. Failure of the State to provide a list of boat numbers requested by a Tribe in the time frames outlined in this Agreement shall not preclude the Tribe or tribal fishermen from lawfully fishing pursuant to the treaty fishing right, and shall be a complete defense in any action by the State to enforce its tax or boat registration laws until the State complies with the terms of this Agreement. K. The registration data shall be stored utilizing a computer system, with twenty-four hour availability, and procedures which will limit access to civil or criminal law enforcement entities seeking information for law enforcement purposes. The parties agree that unless ordered by a court of competent jurisdiction, no access by business persons or other private individuals shall be permitted unless the treaty fisher or Tribe has authorized such release of information in writing. Release of information may be made to other persons or groups when specifically authorized in writing by all persons identified in the information to be released. The particular computer system and procedures may vary over time. However, the parties agree to use initially the Washington Department of Licensing system, so long as access by other than law enforcement entities is prohibited. The State shall defend against any private party’s attempt to establish a legal right to obtain tribal registration data, shall notify the affected Tribe of any such private party claim at the time the claim is made, and shall keep the Tribe informed as to the status of the matter. Access to the tribal information shall be available via a modem, or other suitable electronic format, to all state, tribal, federal, and foreign law enforcement agencies. Information available by computer shall not be considered in the possession or control of any other party. . The State and the Plaintiff Tribes will also allow on-line access between and among all parties’ vessel registration information systems to permit state, tribal, and federal enforcement personnel to directly obtain vessel registration information from the various governments’ vessel information systems, regarding treaty and non-treaty boats. No altering of another party’s information shall be. made without that party’s consent. The parties shall review after the first year, and annually if any of the parties deem that appropriate, the suitability of the state system and procedures to address the parties’ various concerns. The parties shall investigate and consider other systems and procedures if any party so desires. The parties agree that alternatives that may prove suitable include, among others, a federal system, or a tribal system, which system may be organized, at the Tribes’ sole discretion, by an individual tribe or by more than one tribe acting together. Like the initial system, an alternative system or network shall provide, at a single point of contact, twenty-four hour on-line access to all the information for all the Plaintiff Tribes required to be available under § F. L.If a Tribe becomes aware that information regarding a boat authorized by that Tribe to participate in the treaty fishery, and contained in the state boat identification system, or the boat identification system of another Tribe, may be erroneous or incomplete and should be corrected, that Tribe will promptly notify the State or the Tribe which operates the identification system. The notice to the system operator shall state the reasons why it is believed the system information is incorrect or in*1178complete. The notifying Tribe shall also identify the correct or additional information the Tribe believes should be entered into the system. The system operator shall respond promptly to each such notice regarding inaccurate or incomplete information, explaining what, if any, changes or corrections have been made. M. The State shall advise and direct state and local enforcement agencies not to enforce state vessel registration requirements as to boats owned by Tribes with treaty secured fishing rights, or their members, and registered and numbered as required by tribal law and this Agreement for use in the treaty fishery. The State shall also notify the appropriate enforcement agencies of other states and the federal government that these state requirements should not be enforced except in accordance with the terms of this Agreement. IV. Enforcement of Vessel Registration And Identification Requirements A.The provisions of this section are intended to provide procedures for cooperative, state/tribal enforcement of the requirements of this Agreement relating to vessel registration and identification. In furtherance of this objective, the parties agree to the following acts and forebear-ances which allow for cooperative, enforcement protocols. Except as specifically provided in this section, this section is not intended to relate to enforcement of any other laws. Nothing in this Agreement shall be deemed to be a concession by any party as to the existence or lack of jurisdiction over the Plaintiff Tribes or their members. Nothing herein shall act to expand, diminish or limit the Plaintiff Tribes’, State’s, or federal government’s jurisdiction over tribal members nor be a grant of jurisdiction by the Plaintiff Tribes to the State or federal government or the State or federal- government to the Plaintiff Tribes. Nor shall any provision herein be deemed to waive any defense, protection, or other right a member may have in regard to enforcement, under the rulings of this Court or other law. See, e.g., United States v. Washington, 384 F.Supp. 312, 408-409 (W.D.Wash.1974). “State” includes all subdivisions of the State and other enforcement entities bound, through the State, under the provisions of this Consent Decree. B. Violations Within Indian Country The State shall not take any action as to any violation by a member of a Plaintiff Tribe of vessel registration and identification requirements occurring within an Indian reservation, tribal trust lands, or other areas of Indian country of that Plaintiff Tribe. For purposes of this Agreement, “Indian country” shall have the definition set out in 18 U.S.C. § 1151, as interpreted and applied by the federal courts. C. Violations Outside Indian Country 1. The State may take action to enforce state vessel registration and identification requirements against any Indian where the violation occurs outside of any Indian reservation, tribal trust lands, or other Indian country as that term is used herein, of a Plaintiff Tribe in which the Indian is a member, in the following situations and subject to the following limitations: a. if the vessel is not operated on behalf of a Tribe in connection with that Tribe’s treaty fishing right and is not claimed by the owner or operator to be a treaty fishing vessel; b. if an enforcement officer observes a vessel he or she reasonably believes to be without proper, current and effective state, federal, or tribal registration or identification, he or she may detain the *1179vessel regardless of ownership to determine if the owner or operator claims the vessel is a treaty fishing vessel and whether the owner, operator or other occupant has in his or her possession a currently effective tribal fishing identification card, a tribal fishing permit, tribal registration document for that vessel, tribal membership card, or other similar, written evidence that the vessel is a treaty fishing vessel subject to registration and identification requirements administered by a Plaintiff Tribe, provided that the state officer shall detain the vessel owner, operator, or other occupant no longer than is permitted under the search and seizure law of the state or federal constitution,' whichever is more restrictive. If no such evidence is produced and the vessel is not then currently registered and numbered through the applicable Tribe (or the State), although claimed to be a treaty fishing vessel, the state officer may take enforcement action under state law. 2. Referral To Tribe a. If such evidence that the vessel is a treaty fishing vessel is produced and delivered within thirty (30) days following the date of the citation or other enforcement action to the office of the enforcement agency issuing a citation or taking other enforcement action, by the person against whom enforcement action is taken or by the Plaintiff Tribe of which that person is a member, the matter shall be referred to the applicable Plaintiff Tribe within ten (10) days after such evidence is produced and delivered. b. If the owner or operator of the vessel claims the vessel is a treaty fishing vessel covered by this Agreement and the owner or an occupant produces one or more of the items of evidence set out above in this subsection, then the enforcement officer, as to the apparent registration and identification violation, may detain the vessel, subject to the same time limitation set forth in § IV.C.l.b. above, to obtain the information necessary for the issuance of a citation for that alleged violation and may take such action as is necessary to protect officer safety and to obtain or preserve any relevant evidence. Within ten (10) days after the stop, the enforcement agency responsible for the stop, shall refer the apparent violation to the applicable. Plaintiff Tribe. c. Whenever a state: officer believes a violation has occurred by a tribal member under the circumstances set out in § IV.C.2.b., the officer shall, as soon as practicable, attempt to contact law enforcement of the Tribe in which the operator or occupant(s) claims fishing rights, using common means of law enforcement communication such as radio over common frequency, telephone, or a dispatcher utilized by that Tribe. The state officer, to the extent authorized under applicable law, may, when requested by a tribal officer, detain, or continue to detain the violator. A copy of any citation or other enforcement notice to a person claiming treaty fishing rights shall be sent to the Plaintiff Tribe in which treaty fishing rights are claimed, provided that sending a copy of such document shall not be considered a referral of the matter to the. Tribe under this § IV. d. No state prosecution for an alleged vessel registration/identification violation by a member(s) of Plaintiff Tribes or by a tribal licensee(s) shall be initiated before the expiration of sixty days (60) days following the appropriate Tribe’s receipt of a referral, to allow the Tribe to determine whether the incident also violates tribal law and whether the *1180Tribe chooses to prosecute in tribal court or another tribal governmental forum. If, following referral of a possible vessel registration or identification violation to a Plaintiff Tribe, the State commences a civil, criminal, or administrative enforcement action for such violation during the sixty day tribal review period, and if during that sixty day period the state or local enforcement agency receives written notice from the Tribe that the Tribe has commenced its own enforcement action against the same tribal member for the same incident, that state or local enforcement agency shall request that the prosecutor, or similar officer to whom it has referred the case for prosecution, withdraw the case to let the Tribe proceed instead. Nothing in this Agreement shall prevent a Plaintiff Tribe from requesting at any time that a state prosecutor, or similar officer, exercise his or her prosecutorial discretion to dismiss or defer a state action against a member of that Tribe for a vessel registration or identification violation when the Tribe brings its own enforcement action against the same tribal member arising out of the same incident. e.Referrals shall be made by transmitting or mailing an incident report to the appropriate law enforcement office of the Plaintiff Tribe of which the person or persons alleged to have committed the violation is, or are, a member(s). The report shall contain a summary of the observations of the officer(s) detaining the vessel, the information taken by the officer(s) necessary to support the issuance of a citation and a summary of any other actions taken by the officer(s). Any evidence seized shall be delivered with the report. f. Within sixty (60) calendar days following the date the Tribe receives the incident report and notice of the referral, the tribal enforcement entity shall notify the enforcement supervisor of the state agency making the referral whether the Tribe (a) has initiated an enforcement action under tribal law for failure to properly register or identify the vessel involved in the incident; (b) has determined not to initiate or pursue an enforcement action, although permitted by tribal law and the basis for that decision; or (c) has no basis to pursue an enforcement action under tribal law, in which case the matter shall be promptly referred back to the referring state agency which may then pursue enforcement under state law except in a situation covered by (b) involving the exercise of prosecutorial discretion. See, § IV.C.2.Í., infra. The State may also proceed with enforcement action for possible vessel registration and identification violations if the Tribe does not respond within the sixty-day period following the date the Tribe receives the incident report and notice of the referral. g. If the Tribe has instituted an enforcement action, the tribal enforcement entity shall notify the enforcement supervisor or equivalent officer of the state agency making the referral at least fifteen (15) calendar days in advance of any hearing or trial date in that tribal action. The State shall make its enforcement officers available for tribal hearings and trials, and shall provide reasonable cooperation in such prosecutions. h. As provided in § III.J, failure of the State to issue a list of numbers and decals in the manner and time provided in § III.C above shall be a defense to any such violation occurring during the *1181period in which the numbers or decals have not been made available to the Plaintiff Tribe in which the alleged violator is a member. If the State has failed to comply with § III.C, and this failure is shown to be the cause of the alleged violation, the State shall withdraw its citation with respect to the vessel. i.While it is expected that all parties will vigorously enforce their registration and identification requirements, this Agreement is not intended to inhibit the exercise of reasonable prosecutorial discretion by state or tribal prosecutors in regard to determining that a particular case should not be prosecuted or that lesser penalties or other resolution should be sought. Disagreements over whether prosecutorial discretion is being exercised reasonably shall be addressed as provided in § IV.D.4, infra, in the same manner as other enforcement concerns. D. Other Cooperative Enforcement Measures 1. At least semiannually, each Tribe shall notify the State Department of Licensing of the status or disposition of all referred cases involving an alleged vessel identification violation, including the name of the referring agency, whether and what charges were filed, the amount of any fines, and the nature of any other penalties, including permit suspension or revocation, restrictions, probation or other disposition. 2. The enforcement supervisors of the State and Tribes shall meet as needed (at least annually for the first three years following the effective date of this Agreement, and thereafter at least every two years) to discuss matters related to implementation of this Agreement, including the exchange of information regarding violations, the training of officers, and the planning of joint patrols or other joint operations. 3. Within three months following the entry of this Consent Decree, the parties shall meet to discuss cross-deputization of state and tribal enforcement officers and the applicable procedures and criteria should the parties agree that cross-deputi-zation is desirable. 4. If the State believes a Tribe has failed to enforce its registration and identification requirements or any Tribe believes the State is not complying with provisions for referral of incidents to a Tribe or otherwise failing to meet the terms of this Agreement, the State or Tribe(s) shall so notify the other parties, and provide the factual basis for their belief, in writing. If the matter is not resolved to the parties’ satisfaction within a reasonable time, not to exceed sixty (60) days, unless the parties agree otherwise, dispute resolution may be pursued in accordance with § VII, below. V. Consistency Of Agreement With Federal Vessel Numbering And Other Federal Boating Safety Requirements In agreéing to this settlement, neither the United States, through the U.S. Coast Guard, Department of Transportation, nor the Tribes make any concession as to the applicability or inapplicability of federal laws dealing with vessel identification to treaty fishing boats. The United States confirms that, whether or not these laws apply to treaty fishing boats, the cooperative, intergovernmental vessel numbering and registration provisions of this settlement are consistent with and satisfy the federal requirements, contained in 46 U.S.C. § 12301 et seq.; 33 C.F.R. Part 173. Compliance with this Agreement will not jeopardize Coast Guard certification of the State. The Coast Guard specifically *1182agrees hot to sanction the State in any manner for any difference in the way the State treats treaty or tribal and nontreaty boats, so long as such treatment is consistent with this Agreement. VI. Alternative Tribal Registration Systems Nothing in this Agreement shall preclude the Tribes and the United States from investigating, developing, and adopting an alternative system for vessel numbering and record-keeping for tribal boat and treaty fishing boat. Tribes, without affecting or waiving their legal position that the federal law and numbering system does not apply to their tribal and treaty fishing boats, may seek an exemption from the federal provisions or seek an amendment to those provisions. VII. Dispute Resolution A.Any party to this Agreement may invoke the jurisdiction of the federal court to resolve issues related to the implementation of this Agreement, other than the question of whether the terms of this Agreement are required by or consistent with the Tribes’ treaty fishing rights unless permitted by § IV.D. of the Court’s Order approving this Agreement. Prior to invoking federal court jurisdiction, the parties shall proceed to attempt to resolve such dispute in accordance: with paragraph 25 of the Court’s March 22, 1974 permanent injunction in United States v. Washington, 384 F.Supp. 312, 419, as amended by the Court’s August 23, 1993. Order Modifying Paragraph 25 of Permanent Injunction, and any subsequent amendment thereto. Such procedures for resolution of disputes between the parties shall be employed toward the resolution of all disputes concerning violations of this Agreement and all other issues between the parties arising under this Agreement, except as otherwise expressly provided herein. The parties will abide by the final adjudication of a dispute over boat ownership by a state or tribal court with jurisdiction over such dispute. B. In the event of disagreement between the parties in regard to a vessel number or registration issued by a Plaintiff Tribe, no treaty fisher or Tribe shall be precluded from using a boat, which a Tribe considers in compliance with tribal registration requirements, for the exercise of treaty fishing rights, pending final disposition of a dispute affecting that boat, pursuant to the procedures required by the preceding paragraph. C. At the request of a party after the first year of the operation of this Settlement Agreement, the parties will meet to review the implementation of the Agreement. Upon further request of a party, such other meetings may be held annually, unless the parties consent to a more frequent interval. Such meetings shall be in addition to, or held concurrently with, the meetings required by § IV.D.2. of this Agreement. VIII. Notification Each of the parties to this Agreement shall provide at least one name and one alternate contact, with their address, phone number, and fax number, for all notification. All notices which are not initially transmitted by mail, shall be followed by a mailed, written notice, unless the parties otherwise agree. IX. Distribution To Enforcement Agencies And Personnel Immediately after judicial approval of this Agreement, the State shall provide a copy of this Agreement and other portions of the Consent Decree to each and every county prosecutor, county sheriff, and law enforcement office of the State, including *1183its political subdivisions. The Plaintiff Tribes shall similarly distribute copies of the Agreement to their enforcement agencies and personnel. Each copy shall be accompanied by a notice reciting that the federal district court has approved a Consent Decree settling a dispute over the application of certain state taxes, fees, and vessel registration requirements to treaty fishing boats, that particular attention should be given to § IV on Enforcement Of Vessel Registration And Identification Requirements, and that all enforcement entities must comply with the Settlement Agreement. X. Amendments The parties recognize that individual tribes, groups of tribes, or the State may wish to amend this Agreement or to reach new agreements governing vessel registration and data sharing, and to that end, any of these entities or groups may propose an amendment for consideration by the parties. Unless the parties agree otherwise, or a compelling reason exists for more frequent amendment, proposed amendments shall be considered at an annual meeting to review the parties’ progress in implementation. Until an amendment or a new agreement is adopted by the parties, and court approval is obtained, this Agreement shall be binding. XI. Judicial Approval This Agreement shall become effective upon signature of the authorized representatives of the parties and approval of the Court in United States v. Washington, Subproceeding 88-1. This Agreement is not intended and shall not be construed as the admission of any party, as findings of fact, conclusions of law, or the interpretation or construction of the law applicable to this case. No party shall toe considered to have prevailed with respect to resolution of this issue or shall be entitled to its costs or fees. If for any reason the Court should decline to approve this Settlement and Decree in the form presented, any statements made in negotiation and the terms herein may not be used as evidence in any litigation or administrative proceeding. If the Court declines to approve this Settlement Agreement and Decree in the form presented, the settlement embodied herein shall be voidable at the sole discretion of any party upon written notice to all parties and to the Court. ATTACHMENT A § 174.17 Contents of application for certificate of number. (а) Each form for application for a certificate of number must contain the following information: (1) Name of the owner. (2) Address of the owner, including ZIP code (3)-(4) [Reserved] (5)State in which vessel is or will be principally used. (б) The number previously issued by an issuing authority for the vessel, if any. (7) Whether the application is for a new number, renewal of a number, or transfer of ownership. (8) Whether the vessel is used for pleasure, rent or lease, dealer or manufacturer demonstration, commercial passenger carrying, commercial fishing, or other commercial use. (9) Make of vessel. (10) Year vessel was manufactured or model year. (11) Manufacturer’s hull identification number, if any. (12) Overall length of vessel. *1184(13) Type of vessel (open, cabin, house, or other). (14) Whether the hull is wood, steel, aluminum, fiberglass, plastic, or other. (15) Whether the propulsion is inboard, outboard, inboard-outdrive, sail or other. (16) Whether the fuel is gasoline, diesel, or other. (17) The signature of the owner. (b) An application made by a manufacturer, or dealer for a number that is to be temporarily affixed to a vessel for demonstration, or test purposes may omit items 9 through 16 of paragraph (a) of this section (c) An application made by a person who intends to lease or rent the vessel without propulsion machinery may omit items 15 and 16 of paragraph (a) of this section. [CGD 79-087, 47 FR 8176, Feb. 25, 1982] . As the Four Tribes noted in their reply brief, p. 7, Judge Boldt relied on Dr. Barbara Lane's reports in making his determinations about treaty time tribal fishing grounds because "in specific facts, the reports ... have been exceptionally well researched and reported.” 384 F.Supp. at 350. Judge Boldt also remarked that "Dr. Lane's opinions, inferences and conclusions based upon the information stated in detail and well documented in her reports, appeared to the court to be well taken, sound and reasonable.” Id. Thus, Judge Boldt placed his trust in Dr. Lane’s ultimate conclusions because she substantiated them with detailed documentation. This court will expect no less of Dr. Suttles. A treaty tribe may perform certain of these functions as provided in this agreement.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217557/

PER CURIAM. Ernestine Brock seeks review of the magistrate judge’s order* affirming the Commissioner’s denial of social security benefits pursuant to 20 C.F.R. § 404.1520(f) (2002). Our review of the record discloses that the Commissioner’s decision is based upon substantial evidence and is without reversible error. In particular, we find that substantial evidence supports a finding that Brock retains the residual functional capacity to perform medium work and, therefore, is able to return to her past relevant work as a certified nursing assistant. Accordingly, we affirm the magistrate judge’s order. Brock v. Barnhart, No. CA-01-2488-JFM (D.Md. Aug. 15, 2002). 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. The parties consented to review by a magistrate judge pursuant to 28 U.S.C. § 636(c)(2) (2000).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217558/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Joan E. Marshall seeks review of the magistrate judge’s order* affirming the Commissioner’s denial of social security benefits. We affirm. We review the Commissioner’s final decision to determine whether it is supported by substantial evidence and whether the correct law was applied. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir.1995). We have reviewed the record and conclude the Commissioner’s decision is based upon substantial evidence. Accordingly, we affirm on the reasoning of the magistrate judge. See Marshall v. Barnhardt, No. CA-01-2211-DKC (D.Md. filed Sept. 27, 2002; entered Sept. 30, 2002). 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. The parties consented to review by a magistrate judge pursuant to 28 U.S.C. § 636(c)(2) (2000).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217560/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Michael W. Sloan appeals the district court’s orders accepting the recommendation of the magistrate judge, denying relief on his mandamus petition, granting judgment to the Defendants on his 42 U.S.C. § 1983 (2000) complaint, and denying his motion for reconsideration under Fed.R.Civ.P. 59(e). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Sloan v. United States, No. CA-01-347-3 (E.D. Va. Mar. 5, 2002; July 10, 2002; Aug. 14, 2002). 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217561/

Vacated and remanded by unpublished PER CURIAM opinion. OPINION PER CURIAM. Christopher Hastings appeals the order of the district court dismissing his motion under 28 U.S.C. § 2255 (2000) as untimely filed.* In calculating the limitations period applicable to Hastings’s motion, the district court relied on United States v. Torres, 211 F.3d 836, 839 (4th Cir.2000). Since then, the United States Supreme Court has overruled Torres. See Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003). Accordingly, we vacate the district court’s order and remand for consideration in light of Clay and Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). 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. VACATED AND REMANDED. The district court granted .Hastings’s motion for a certificate of appealability.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217562/

Affirmed by unpublished PER CURIAM opinion. PER CURIAM. David L. Whitehead appeals from the district court’s orders dismissing his civil action and denying his motion for recusal. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Whitehead v. Viacom, Inc., 233 F.Supp.2d 715 (D.Md.2002). We deny Whitehead’s motions for an evidentiary hearing, for injunctive relief, and to strike the Appellee’s informal brief, and dispense *176with 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217563/

Dismissed by unpublished PER CURIAM opinion. PER CURIAM. Wayne Allen Fletcher seeks to appeal the district court’s orders denying his motion for a continuance and denying the motion for reconsideration. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2000), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2000); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The orders Fletcher seeks to appeal are neither final orders nor appeal-able interlocutory or collateral orders. See, e.g., Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984); United States v. MacDonald, 435 U.S. 850, 857-58 n. 6, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978). Accordingly, we dismiss the appeal for lack of jurisdiction. 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.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217564/

ORDER Michael H. McGaughy, a pro se Michigan prisoner, appeals a district court judgment dismissing his civil rights action filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). Seeking monetary and injunctive relief, McGaughy sued Richard E. Johnson, the then acting regional prison administrator for the Northern Regional Correctional Facility Administration, and Patricia Caruso, who subsequently became the regional prison administrator. Following an administrative hearing on February 2, 1990, McGaughy was convicted of prison escape and staff assault. McGaughy received consecutive thirty day terms of punitive segregation for each conviction. At the end of the sixty day period, the security classification committee reclassified McGaughy to administrative segregation. Except for a mistake in September 1995, when McGaughy was housed in the general population for four days, McGaughy has remained in administrative segregation. Despite repeated requests from the prison warden and the security classification committee that McGaughy be placed in the *178general population, Johnson refused to release McGaughy into the general population. McGaughy filed a civil rights action contending that his due process rights were violated as he has been intentionally and arbitrarily denied his requests to be transferred to the general population and that his equal protection rights were violated as he is being treated differently from the other four prisoners who were involved in the escape. Upon de novo review of a magistrate judge’s report, the district court granted summary judgment to the defendants. In his timely appeal, McGaughy asserts that he is entitled to a meaningful hearing on his right to be released, that Johnson’s actions have been arbitrary, that he has a liberty interest in being housed in the general population as the need for him to be in administrative segregation no longer exists, that he is entitled to equal protection, and that the defendants were not entitled to summary judgment. The district court’s judgment is reviewed de novo. See Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997). The district court properly granted summary judgment to the defendants. As for McGaughy’s allegations that he has a liberty interest in being in the prison’s general population, the claim is barred by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). In Sandin, the Supreme Court abandoned its prior approach in determining whether state procedures created a liberty interest and held: Following Wolff[v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) ], we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Id. at 483-84 (citations omitted). As McGaughy was simply placed in administrative segregation, the punishment did not impose an “atypical and significant hardship on [him] in relation to the ordinary incidents of prison life.” Id. at 484. Furthermore, contrary to McGaughy’s assertion, he has no constitutional right to be returned to the general population. See Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976); Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Therefore, the district court did not err in dismissing McGaughy’s complaint pursuant to San-din. McGaughy’s equal protection argument also fails. McGaughy states that he is being treated differently from prisoners with similar records. The district court properly dismissed McGaughy’s equal protection claim as McGaughy has not claimed that he is a member of a constitutionally protected class and that the defendants intentionally discriminated against him because of his membership in that protected class. See Herron v. Harrison, 203 F.3d 410, 417 (6th Cir.2000); Henry v. Metro. Sewer Dist., 922 F.2d 332, 341 (6th Cir.1990). Further, prisoners are not members of a protected class for equal protection purposes. See Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir.1997). Finally, McGaughy states that the defendants were not entitled to summary judgment. However, McGaughy’s arguments do not entitle him to relief as a matter of law, and there is no genuine *179issue of material fact which exists. Thus, the defendants were entitled to summary judgment. See Smith, 129 F.3d at 863. Accordingly, we affirm the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217565/

ORDER This is an appeal from a district court judgment affirming a decision to deny an application for Social Security disability benefits. The parties have agreed to waive oral argument and, upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). On April 3, 1995, Larry Mercer filed an application for disability benefits based on a combination of physical and psychological impairments. Mercer’s application was denied by the Commissioner but remanded by the district court so that Mercer could introduce additional evidence. An administrative law judge (“ALJ”) conducted a hearing and concluded that Mercer’s application should be denied. This conclusion became the Commissioner’s final decision and Mercer took an appeal to the district court on the authority of 42 U.S.C. § 405(g). The district court referred the matter to a magistrate judge who recommended that the Commissioner’s decision should be affirmed. The district court adopted this recommendation over Mercer’s objections and this appeal followed. This court’s review is limited to determining whether the Commissioner’s findings are supported by substantial evidence, and whether the Commissioner employed the proper legal standards in reaching the conclusion on appeal. Brainard v. Sec’y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir.1989). Substantial evidence is “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir.2001) (citation omitted). The Commissioner’s findings must be affirmed if supported by substantial evidence, even if substantial evidence would have supported the opposite conclusion. Smith v. Chater, 99 F.3d 780, 782 (6th Cir.1996). An examination of the present appeal shows that the Commissioner employed the proper legal standards in reaching a decision supported by substantial evidence. *180Mercer’s disability claim is based on an on-the-job accident he suffered April 7, 1988, and subsequent psychological/seizure episodes. Mercer was working as a boilermaker when he fell and suffered injuries to his back. Mercer’s severely limited employment record in the wake of his injury meant that the date he was last insured for Social Security disability purposes was December 31, 1993. It was thus incumbent upon Mercer to prove that he was disabled within the meaning of the Social Security regulations by that date in order to be eligible for disability benefits. Mercer testified in his own behalf as to the amount and severity of pain he allegedly suffered and introduced a substantial body of medical evidence in support of his claim. Only a relatively small portion of this evidence, however, was the result of medical treatment or consultation prior to the expiration of Mercer’s insured status. The remainder of Mercer’s medical evidence was from treatments and consultations compiled from August 1994 through November 1998. The ALJ rejected all but two of these opinions after concluding that they were too remote in time to be probative of Mercer’s condition prior to 1994. The ALJ specifically found that, as of his last insured date, Mercer could lift and carry twenty pounds occasionally, he could lift and carry ten pounds frequently, he could sit six hours a day with a siVstand option, he could never climb ladders or ropes, but that he could occasionally climb stairs, bend, stoop and kneel. The ALJ concluded from his findings that Mercer could no longer perform his past work as a boilermaker, but that he retained the residual functional capacity to perform light work with the restrictions indicated. The ALJ consequently enlisted the aid of a vocational expert in an effort to discover whether there were any jobs in sufficient numbers in the economy that Mercer could perform. The ALJ found, based on the vocational expert’s testimony, that a significant number of jobs existed in the economy for a person with Mercer’s residual functional capacity. This latter conclusion guided the ALJ’s recommendation that Mercer’s claim should be denied. The Commissioner subsequently adopted the ALJ’s findings and Mercer’s appeal to the district court was unavailing. On appeal, Mercer contends that the Commissioner (through the ALJ) erred in rejecting the opinions of Mercer’s “treating physicians” and that the decision is not supported by substantial evidence. Upon review, this court will affirm the judgment on appeal for the reasons set forth in the magistrate judge’s report and recommendation filed January 10, 2002, and adopted by the district court in its order of March 15, 2002. Accordingly, the district court’s judgment is affirmed.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217567/

ORDER Ralphael Okoro, proceeding pro se, appeals a district court judgment dismissing his civil rights complaints filed pursuant to the doctrine announced in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as well as 42 U.S.C. §§ 1985 and 1986. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. RApp. P. 34(a). Seeking monetary and equitable relief, Okoro sued the former warden (Scibana) of the Federal Correctional Institution at Milan (FCI-Milan), an FCI-Milan Staff Attorney (Walasinski), unidentified mail-room employees, all in their individual and official capacities, as well as the United States Bureau of Prisons (BOP). Okoro claimed that: 1) the defendants conspired to interfere with his general and legal mail, in violation of the First, Sixth, and Fourteenth Amendments; 2) the defendants conspired to retaliate against him for exercising his constitutional rights; and 3) the defendants’ violated his equal protection rights. The defendants filed a motion to dismiss, based in part on Okoro’s failure to exhaust his administrative remedies. In the alternative, the defendants argued that they were entitled to summary judgment. Okoro filed a response to the defendants’ motion, as well as a request for discovery. Upon review, a magistrate judge filed a report recommending that the district court grant summary judgment to the defendants. Over Okoro’s objections, the district court adopted the magistrate judge’s recommendation, and granted summary judgment to the defendants. The court did not specifically address Okoro’s discovery request. Okoro has filed a timely appeal, essentially reasserting his claims. He also ar*184gues that the district court erred by not addressing his request for discovery prior to ruling on the defendants’ motion for summary judgment. Okoro has also moved for the appointment of counsel. Initially, we note that the government correctly argues, on appeal, that Okoro’s complaint should have been dismissed for failure to exhaust administrative remedies. See 42 U.S.C. § 1997(e)(a); Brown v. Toombs, 139 F.3d 1102, 1103-04 (6th Cir.1998). Nonetheless, we conclude that the most expedient course would be for this court to affirm the district court’s judgment because the district court has already rejected Okoro’s claims on the merits. Upon review, we conclude that the district court properly granted judgment in favor of the defendants. See Meador v. Cabinet for Human Res., 902 F.2d 474, 475 (6th Cir.1990). Okoro cannot pursue a Bivens claim against the BOP because such a claim may not be brought against a federal agency. See Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). In addition, Okoro cannot pursue a claim against the individual defendants, to the extent that they were sued in their official capacity. See Berger v. Pierce, 933 F.2d 393, 397 (6th Cir.1991). The district court also properly granted judgment in favor of defendants Scibana and Walasinski, to the extent that they were sued in their individual capacity. First, the doctrine of respondeat superior cannot provide the basis for liability in a Bivens action. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Here, Okoro did not establish that Scibana condoned, encouraged, or knowingly acquiesced in the alleged unconstitutional misconduct. See Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir.1995). In addition, Okoro’s allegations against Scibana and Walasinski are too conclusory to state a cognizable claim that they conspired to violate his constitutional rights. See Kensu v. Haigh, 87 F.3d 172, 175-76 (6th Cir.1996); Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir.1987). The remaining defendants are entitled to summary judgment on Okoro’s mail interference claims. Concerning the processing of his general mail, Okoro faded to state a claim because he did not present any evidence indicating that the defendants, rather than the postal system, were responsible for the failure to deliver his outgoing or incoming mail. In addition, Okoro was only able to provide one specific incident where he allegedly did not receive the full contents of a letter from his wife. Such a random and isolated incident is insufficient to establish a constitutional violation. See, e.g., Reneer v. Sewell, 975 F.2d 258, 260 (6th Cir.1992). Okoro also failed to state a claim concerning the defendants’ handling of his legal mail. First, we note that the district court properly concluded that the FCI-Milan mailroom employees cannot be held hable for any of the alleged mishandling of Okoro’s mail while he was incarcerated at FCI-Pekin. Second, with respect to the FCI-Milan employees’ conduct, Okoro has not alleged that the defendants’ handling of his legal mail resulted in the loss of any non-frivolous legal claim, or that the defendants’ conduct is currently preventing him from presenting a non-frivolous legal claim. See Lewis v. Casey, 518 U.S. 343, 351-54, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). We note that the district court did not specifically address Okoro’s complaints that prison officials improperly copied his legal mail, improperly searched his cell for legal mail/documents, left his legal documents out in the open, and temporarily *185confiscated his “legal tapes.” However, we conclude that the defendants were entitled to judgment because Okoro did not present any convincing evidence to support these allegations. Indeed, Okoro concedes that his “legal tapes” were returned to him within two days after being confiscated. Moreover, as stated above, Okoro did not allege that the defendants’ alleged misconduct resulted in the loss of any non-frivolous lawsuit. We conclude that the defendants were entitled to judgment on Okoro’s equal protection claim because he did not establish that the defendants intentionally discriminated against him based on his membership in a protected class. See, e.g., Henry v. Metropolitan Sewer Dist., 922 F.2d 332, 341 (6th Cir.1990). Prisoners are not a “protected class” for equal protection purposes. See Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir.1997). Finally, we conclude that the district, court did not improperly grant summary judgment prior to the completion of discovery. See Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 209 (6th Cir.1995). The record reflects that the parties had ample time to request discovery prior to the court’s ruling on the defendants’ motions for summary judgment. In addition, Okoro does not identify the information he would have sought, or how the information would have improved his case. Accordingly, we deny the appointment of counsel and affirm the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217568/

PER CURIAM. Plaintiff Richard Watkins appeals the district court’s grant of summary judgment against his federal Family and Medical Leave Act (“FMLA”) retaliation claim and his state tortious interference with contract claim. We AFFIRM, though on different grounds than those relied on by the district court. I. Watkins is a former management employee of Hill’s Pet Nutrition, Inc. (a wholly-owned subsidiary of Colgate-Palmolive Company). In 1998, Watkins’s manager, Defendant Bill Buescher, began to make Watkins’s employment unpleasant. Specifically, Watkins alleges that Buescher (1) treated Watkins unfairly in shift assignments, (2) made a comment to two team leaders to “avoid picking up Watkins’s bad habits,” (3) told co-workers that Watkins’s FMLA leave was due to work-related stress, (4) ridiculed Watkins’s work performance in front of his peers, and (5) gave Watkins an article entitled “Pink Slips in Good Times.” Watkins alleges that Buescher did these things in order to push Watkins out of the company because Watkins knew about Buescher’s involvement with an allegedly fraudulent insurance claim. In March 2000, having “had it,” Watkins talked with Buescher about the possibility of severance from his employment. Watkins also consulted a doctor, who placed him on six weeks of FMLA leave. In April, Watkins briefly returned to work, but resumed FMLA leave after Buescher threatened to move him to third shift. On May 10, 2000, Watkins’s FMLA leave concluded, and he again returned to work. Watkins remained unhappy with his work. In May, he received a negative performance evaluation; in June, he was suspended pending an investigation of allegedly racist comments he made. Watkins then requested a severance package, which Hill’s subsequently offered. On July 7, 2000, in a phone conversation recorded by Watkins, a Hill’s employee said the following in response to Watkins’s concerns about the terms of the severance package: ... I don’t want to enter into a protracted debate about [the alleged racist comments] or your attendance or anything *187like that. That’s not the issue here. The issue is ... you said you weren’t happy, you wanted some help in moving on, and that’s where we’re at. ... I’m not sure I can extend the offer [beyond] today. I can tell you that effective today you’re terminated. Later in the conversation, the two agreed to talk further about the severance issue on the following Monday. When Watkins did not contact Hill’s on Monday, Hill’s sent Watkins a letter extending the severance offer deadline. The letter, dated July 10, 2000, noted that if Watkins chose to withdraw his request for severance, Hill’s would assume that he was no longer interested in leaving and would expect him to “return to work as normally scheduled on Friday July 14, 2000, and to assume [his] regular duties.” Watkins never returned to work, but instead filed suit in the Western District of Kentucky. Among other claims, Watkins’s complaint alleges FMLA retaliation by Hill’s and tortious interference with contract by Buescher. The district court granted the defendants’ motion for summary judgment on these claims, finding that (1) although Watkins had presented a triable issue of fact as to whether the July 7 conversation constituted an “adverse employment action,” his FMLA claim does not survive summary judgment because no causal relationship existed between Watkins’s FMLA leave and termination, and (2) because at all relevant times Buescher was acting within the scope of his duties as a Hill’s manager, he cannot be liable for interfering with Watkins’s contract with Hill's. II. This court reviews a district court’s grant of summary judgment de novo. See Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir.1999). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In order to establish a prima facie case of FMLA retaliation, a plaintiff must show “(1) he availed himself of a protected right under the FMLA. (2) he was adversely affected by an employment decision ..., and (3) the proximity in time between [his] request for leave and his discharge [establishes] a causal connection between his exercise of a right under the FMLA and the adverse employment decision.” Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir.2001). Here, Watkins has not suffered an adverse employment action. Specifically, because the July 10 letter gave Watkins the opportunity to withdraw his request for severance and return to work, no reasonable jury could find that Watkins was fired.1 Under Kentucky law, the elements of an action for intentional interference by a third person with a contractual relationship are: (1) a valid existing contract, (2) defendant’s knowledge of this contract, (3) an intentional unjustified inducement to breach the contract, (4) a subsequent breach, and (5) resulting damage to the plaintiff. See Walt Peabody Adver. Serv., Inc. v. Pecora, 393 F.Supp. 328, 331-32 (W.D. Kentucky 1975) (reviewing the history of this tort in Kentucky and conclud*188ing that Kentucky has adopted the majority rule as stated in the Restatement of Torts, § 766). Viewing the facts in the light most favorable to Watkins, we find no breach of contract. Again, because the July 10 letter gave Watkins the opportunity to withdraw his request for severance and return to work, no reasonable jury could find that Hill’s had breached its contract with Watkins. AFFIRMED. . We agree with the district court that Watkins’s other proposed actions (threatened shift assignments, negative employment evaluation, and suspension pending investigation) do not meet the standard for "adverse employment action.” Watkins did not challenge these decisions on appeal.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217569/

SILER, Circuit Judge. Plaintiff Gregory Arnold appeals the dismissal of his bankruptcy appeal by the district court below, arguing that the district court erred in denying his motion to *189allow the late filing of his appellate brief. For the following reasons, we AFFIRM. BACKGROUND Arnold filed a Chapter 13 bankruptcy petition in 1996. One objective of this petition was to convert Arnold’s vehicle lease agreement with defendant GE Capital into a purchase. The matter proceeded in the bankruptcy court, and Arnold received a discharge on June 8, 1999. A dispute developed, however, when GE Capital repossessed the vehicle and sold it at auction following the debtor’s discharge. Arnold filed a motion to reopen the case, and GE Capital filed a motion for relief pursuant to Rule 60 of the Federal Rules of Civil Procedure. The bankruptcy court, on February 7, 2000, granted GE’s request for relief from the confirmation order based on the “equities of the case.” Arnold filed a timely notice of appeal from the bankruptcy court order. The Notice to Parties was issued on March 15, 2000. Pursuant to Rule 8009 of the Federal Rules of Bankruptcy Procedure, Arnold had fifteen days, or until March 30, 2000, to file his appellant’s brief with the district court.1 On December 26, 2000, Arnold filed a motion to waive Rule 8009, a proposed brief, and an affidavit of his attorney in support of the motion. The district court denied the motion and dismissed the appeal. STANDARD OF REVIEW We review the district court’s dismissal of this bankruptcy appeal pursuant to Rule 8009 for abuse of discretion. In re Salter, No. 92-4300, 1993 WL 366363, at *1 (6th Cir.1993) (“A district court’s dismissal for non-compliance with non-jurisdictional bankruptcy rules is reviewed for an abuse of discretion”). DISCUSSION Bankruptcy Rule 8001(a) allows a district court to dismiss bankruptcy appeals for non-prosecution. Salter, 1993 WL 366363, at *1. This Circuit, however, adheres to the admonition “that a late filing does not justify dismissal of the appeal absent a showing of bad faith, negligence, or indifference.” Id. In the instant case, Arnold filed his brief nearly nine months late. His attorney’s affidavit, which was presented to the district court, avers that a series of unforeseen “catastrophes” prevented attorney Frank E. Watkins, Jr. from filing this brief on time.2 The district court noted that the last event had occurred on or about July 5, 2000, but that Watkins failed to give a reason for the lapse of an additional six months, from that point, before fifing the brief. The court further observed that, *190“[i]n his affidavit, Mr. Watkins acknowledges that he anticipated that he might need to file a motion, but he did not do so.” The court also reviewed Watkins’s recounting of the difficulties he encountered working with other attorneys in closing his law practice but concluded that “these events do not establish cause for waiver of the Rule 8009 filing requirements.”3 Citing Salter’s summation of this Circuit’s requirement that bad faith, negligence, or indifference must be shown to justify dismissal due to a late filing, the court concluded that “the nearly nine month delay of the appellant in filing his brief is more than a late filing and constitutes negligence and indifference.” In arguing that the district court abused its discretion. Arnold cites a number of cases addressing the dismissal of bankruptcy appeals for omitted or untimely filings of briefs. Most of these cases are non-binding, as they originate in other Circuits, and nearly all are factually distinguishable from the case at bar. Only three involve time delays comparable to that in this case. In re Beverly Manufacturing Corp., 778 F.2d 666 (11th Cir.1985), concerned a district court’s sua sponte dismissal of a bankruptcy appeal after nine and a half months, for failure to file briefs within fifteen days of docketing.4 In reversing the dismissal, the appellate court noted that “[h]ere appellant took all steps necessary for prosecution of the appeal except that of filing the brief; that element depended on delayed processing of the record.” Id. at 667. While Arnold touts his diligence at all other steps of this appeal, his reasons for the delay in this case are substantially different from those in Beverly. Tampa Chain Co. v. Reichard, 835 F.2d 54 (2d Cir.1987), dismissed a bankruptcy appeal in which the appellants had failed to file a brief after seven months. The district court had inquired as to why the appellants had not filed a brief, but the attorney proffered no reason or explanation therefor. Arnold seeks to distinguish this case by noting that the district judge in his case did not inquire about the failure to file; rather, Watkins filed a motion to waive Rule 8009, along with a proposed brief and an affidavit proffering reasons for the delay. It should be noted, however, that while the district court did not initiate an inquiry as to the reasons for the delay in this case, it permitted briefing on the subject (in which GE Capital filed a response to Arnold’s motion, and Arnold filed a reply), following which it issued an opinion and order. The present case is distinguishable from Reichard by virtue of Watkins’s detailed explanation for the delay, however. Finally, in Matter of Braniff Airways, Inc., 774 F.2d 1303 (5th Cir.1985), the Fifth Circuit upheld the dismissal of a bankruptcy appeal in which the appellant’s brief had not been filed nineteen and a half months after the entry of the appeal. Though the appellant’s attorney believed his brief had been filed, he discovered that it had never been delivered to the court, nor served upon or mailed to the appellee. Id. at 1304. In affirming, the court noted that “[tjhere is no issue concerning the *191good faith of either the appellant or its counsel, but the delay in considering the appeal might well be prejudicial to the appellee and others.” Id. Moreover, the court declared: When a district court dismisses a case in which it is the trial court for dereliction of counsel, we have frequently held that dismissal is a penalty of last resort, to be imposed only after clear delay or contumacious conduct by the plaintiff and a finding that lesser sanctions would not cure the problem. These cases do not state the standard for dismissal of an appeal. In reviewing actions taken by a district court in its appellate role, we affirm unless the court has clearly abused its discretion. Bankruptcy appeals have frequently been dismissed for the appellant’s failure to comply with the duty of diligent prosecution, and we have dismissed civil appeals for failure of prosecution when the appellant’s brief was not timely filed. Id. at 1305. In his reply brief, Arnold cites cases reviewing the dismissal of cases in which the district court is the trial court, which utilize a “bad faith or contumacious conduct” standard. In reviewing the dismissal of a bankruptcy appeal, however, this court must adhere to the abuse of discretion standard. A court abuses its discretion when it “applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.” First Tech. Safety Sys. v. Depinet, 11 F.3d 641, 647 (6th Cir.1993). The district court in this case applied the correct legal standard and found, after considering the attorney’s proffered reasons, that the more than nine-month delay in filing the appellate brief constituted negligence and indifference. Watkins’s only response to the district court’s notation of a six-month delay after the last “catastrophe” is a brief reference to the cumulative effects of the earlier unforeseen events. While Arnold cites numerous cases in which dismissal is premised on repeated dilatory tactics, there is nothing to indicate that such a finding is an absolute prerequisite to dismissal, or that the extensive delay involved here would not constitute “egregious” circumstances. Nor has Arnold produced a case which clearly indicates that the district court has misapplied the correct legal standard. Additionally, “[ajbuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment.” Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir.1989). We are have no such conviction with regard to the judgment made here. Thus, the district court did not abuse its discretion in dismissing the appeal. AFFIRMED. . Arnold contends that, allowing three days for mailing, he had until April 2, 2000, to file his brief. We need not address this question, however, given that the brief was filed well beyond either of those dates. . These events include: (1) the destruction by fire of a rental house in Knoxville, Tennessee, which was owned by Watkins, on March 30, 2000; (2) extensive damage caused by a tornado to Watkins's residence in Birmingham, Alabama, approximately one week later, which necessitated a hotel stay of several days and the initiation of ongoing repairs; (3) the involvement of Watkins and his wife in a car accident on April 20, 2000 which "caused whiplash neck injuries and back injuries .... [which] made it painful and difficult [for Watkins] to sit at [his] desk and work”; and (4) damage to another of Watkins’s homes, in Knoxville, caused by a falling limb during a storm sometime shortly after July 4, 2000. Watkins further avers that, after the first three events, he "became somewhat depressed with the effort and seeming futility of fulfilling [his] commitments,” but that he had begun to recover over the July 4 holiday and had mailed a formal notice of address change to the district court clerk. . The court further noted Watkins’s statement that he had retained Arnold’s case throughout this process, so that "as of September 21, 1999, it was apparent to Mr. Watkins that he was the lone attorney responsible for Mr. Arnold’s case.” . The appellant claimed that he never received notice that the appeal had been docketed, and thus had no knowledge of the deadline until he received a copy of the dismissal order. Id. at 666-67. He further claimed that he was advised by the clerk’s office at the beginning of the appeal that docketing would be "substantially delayed,” so that he was reasonable in waiting seven months before inquiring about the status of the case. Id. at 667.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217570/

PER CURIAM. The plaintiff, Louise Saulsberry, brought this action against her former employer, Franklin Covey Client Sales, Inc., alleging discrimination in violation of Title VII, 42 U.S.C. §§ 2000e et seq. Saulsberry alleged that Franklin Covey’s decisions initially to deny her a promotion from sales associate to associate manager and then to terminate her employment were racially motivated. In response, Franklin Covey responded that it denied the promotion and then discharged Sauls-berry because her job performance was ■unsatisfactory. Specifically, the employer explained that the plaintiff had poor working relationships with her co-workers, was unable to master necessary technical information concerning Franklin Covey’s products and to properly execute its procedures, and had demonstrated a lack of respect for company management. Assuming that Saulsberry had established a prima facie case, the district court granted the defendant’s motion for summary judgment because, the court held, Sauls-berry was unable to refute the legitimate, nondiseriminatory reasons proffered by Franklin Covey. Having studied the record on appeal and the briefs of the parties, we are not persuaded that the district court erred in dismissing the complaint. Because the reasons why judgment should be entered for the defendant have been fully articulated by the district court, the issuance of a detailed opinion by this court would be duplicative and would serve no useful purpose. Accordingly, we AFFIRM the judgment of the district court upon the reasoning set out by that court in its order dated October 16, 2001, and entered October 18, 2001.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217573/

PER CURIAM. This diversity action arose out of a contract, pursuant to which defendant Central Tower, Inc., was engaged to construct a guyed television tower for Scanlan Communications, Inc. The contract was executed in March 1996, and Central completed construction in October 1996, using insulator rods that had been purchased from defendant Nupla Corporation. In February 1997, the top portion of the tower collapsed. Scanlan notified its insurer, plaintiff Vigilant Insurance Company, of the collapse, and Vigilant began an investigation to determine the cause of and assess the damage from the collapse. As part of this effort, Vigilant hired George Kiiskila, an engineer, to inspect the damage. Based on his examination of the tower and the insulator rods, Kiiskila determined that the collapse was due to the failure of an insulator rod. He could not, however, determine why the insulator rod failed, nor could he identify any manufacturing defects in the rod. Ultimately, Vigilant paid Scanlan $578,367.79 for the loss and became subrogated to Seanlan’s rights. Vigilant then brought suit against Central and Nupla for negligence, breach of contract, breach of express warranty, and breach of implied warranty. Central and Nupla moved for summary judgment on the basis that Vigilant could not establish a defect attributable to either defendant, an element necessary to each of Vigilant’s claims. See Kupkowski v. Avis Ford, Inc., 395 Mich. 155, 235 N.W.2d 324, 328 (1975). The district court determined that “any finding of a defect by a jury would have to be based upon mere speculation or conjecture, which is not permitted under Michigan law,” and granted summary judgment to the defendants. Vigilant now appeals from this decision. According to the plaintiff’s argument, the circumstantial evidence, i.e., the fact that the four-month-old tower collapsed, indicates a defect in the tower attributable to the defendants. For the reasons articulated by Judge Quist in connection with his summary judgment order, we agree that Vigilant has failed to produce evidence of a defect sufficient to withstand a motion for summary judgment. Although Michigan courts allow a jury to infer the existence of a defect from circumstantial evidence, see Snider v. Bob Thibodeau Ford. Inc., 42 Mich.App. 708, 202 N.W.2d 727, 730 (1972), a plaintiffs theory must move beyond the “realm of conjecture.” Meli v. General Motors Corp., 37 Mich.App. 514, 195 N.W.2d 85, 88 (1972). We conclude that the district court was correct in concluding that the record was insufficient to allow a jury to consider the meager circumstantial evidence in this case and, from it, find a defect attributable to the defendants that would establish liability under Michigan law. Having had the benefit of oral argument, and having studied the record on appeal and the briefs of the parties, we are not persuaded that the district court erred in dismissing the complaint. Because the reasons why judgment should be entered for the defendants have been fully articulated by the district court, the issuance of a detailed opinion by this court would be duplicative and would serve no useful purpose. Accordingly, we AFFIRM the judg*202ment of the district court upon the reasoning set out by that court in its opinion dated May 1, 2001.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217574/

COHN, District Judge. This is an employment case. Plaintiff-Appellant Kevin P. Bennett appeals from the district court’s order granting Defendant-Appellee Cisco Systems Inc.’s motion for judgment on the pleadings and compel*203ling Bennett to arbitrate Cisco’s claim against Bennett arising out of his employment and from the district court’s order granting Cisco’s motion for summary judgment on Bennett’s defamation claim against Cisco. Finding no error, we will affirm the judgments of the district court. I. BACKGROUND Cisco is a California company that develops and markets networking products for the Internet. Bennett began working for Cisco in 1994. At some point, Bennett left Cisco to work for a Silicon Valley start-up company but returned to Cisco in 1997. He was most recently employed as an operations director, heading Cisco’s sales operations in Florida and other states and was apparently located in Ohio. When Bennett returned to employment with Cisco in 1997, he signed a document entitled “Terms and Conditions” which contains the arbitration clause at issue here. In November 1999, Bennett resigned and took a position with a smaller competitor of Cisco. On April 26, 2000, Cisco filed a demand for arbitration with the American Arbitration Association (AAA) in California claiming that Bennett and another former Cisco employee used their positions to benefit themselves at Cisco’s expense by participating in a kickback scheme with companies doing business with Cisco and improperly exercising stock options. Cisco sought millions of dollars in damages. Bennett filed suit in federal district court against Cisco seeking a declaratory judgment that the arbitration clause in his employment agreement did not bind him to arbitrate the claims asserted in Cisco’s arbitration demand, and claiming that Cisco defamed Bennett based on statements appearing in the Wall Street Journal and Reuters News Service attributed to Cisco employees which indicated that Bennett was unethical. The articles appeared the day after Cisco filed its demand for arbitration. The background regarding the statements and Bennett’s defamation claim is discussed infra. Cisco filed a counterclaim, seeking, inter alia, an order compelling Bennett to arbitrate all of his claims. The district court ordered that Cisco’s claim against Bennett proceed in arbitration but found that Bennett’s defamation claim did not arise out of Bennett’s employment and was therefore not subject to arbitration. Cisco’s case against Bennett proceeded to completion in arbitration in California, where Cisco prevailed.1 Cisco moved for summary judgment on Bennett’s defamation claim. The district court granted the motion finding that (1) Bennett failed to present admissible evidence that Cisco made the alleged defamatory statements attributed to it in the articles and (2) Bennett failed to present evidence that the statements were materially false. II. ANALYSIS A. Standard of Review We review an entry of judgment on the pleadings de novo. Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998). A grant of summary judgment is reviewed de novo. Wathen v. General Elec*204tric Co., 115 F.3d 400, 403 (6th Cir.1997). Summary judgment will be granted when the moving party demonstrates 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). There is no genuine issue of material fact when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). We must decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir.1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). We “must view the evidence in the light most favorable to the non-moving party.” Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir.1995). B. Arbitration 1. Bennett argues that the arbitration agreement does not cover claims that Cisco brings against the employee, but that it is unilateral — and thus, Bennett argues, unenforceable — and covers only claims that Bennett might bring against Cisco. Bennett also argues that the agreement is invalid because it contains a financial obligation on the part of the employee to share in the costs of arbitration. The arbitration provision provides in relevant part: I agree that any and all disputes that I have with the Company, or any of its employees, which arise out of my employment or under the terms of this Agreement, shall be resolved through final and binding arbitration, as specified herein. This shall include, without limitation, disputes relating to this Agreement, my employment by the Company or the termination thereof, claims for breach of contract or breach of the covenant of good faith and fair dealing, and any claims of discrimination or other claims under Title VII of the Civil Rights Act of 1964.... The district court rejected Bennett’s argument that the arbitration provision is void because it does not impose an obligation on Cisco to arbitrate a claim against Bennett. The district court focused on the language which says that Bennett shall arbitrate “disputes” with Cisco, not “claims.” Thus, because Cisco’s claim against Bennett is a “dispute with the Company” it is subject to arbitration. As the district court stated: “The description of the arbitration agreement describes an arbitration initiated by the employee but this does not modify the scope of the arbitration agreement which covers claims by either party.” We agree. We also note that the arbitration provision says that Bennett will arbitrate “disputes with the Company” as opposed to disputes against the Company. The use of such language contemplates arbitration of disputes initiated by either party.2 *205Moreover, the cases Bennett relies on are distinguishable. In Penn v. Ryan’s Family Steak Houses, Inc., 269 F.3d 753 (7th Cir.2001), an employer tried to enforce an arbitration agreement as a third-party beneficiary of a contract between its employee and an arbitration company. The court held that the contract was unenforceable because it did not obligate the arbitration company to provide consideration to the employee in return for the employee’s agreement to bring any disputes to the arbitration company instead of to a court. Unlike the agreement in Penn, which contained no mutuality of obligation between the parties to the contract, id. at 760, the agreement here explicitly obligates both parties to the agreement to submit certain claims to arbitration. In Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126, 1130 (7th Cir.1997), the plaintiff signed a contract provided by her employer which stated, “I agree to the grievance and arbitration provisions set forth in the Associates Policy Manual” (the Manual). Id. at 1128. The Manual, which was not given to Gibson at the time she signed the contract, specifically stated that all disputes, including Title VII claims, were subject to arbitration, but also stated that “it does not constitute a contract or promise of any kind” on the part of the employer. Id. at 1128. Here, unlike Gibson, there is no language in the arbitration agreement which states that Cisco is not bound to arbitrate disputes. The court in Gibson also found that because the plaintiff was not given a copy of the Manual at the time she signed the contract and never signed the Manual, there was no consideration in the form of a promise by the employer in exchange for the plaintiffs agreement to arbitrate. Here, it is undisputed that Bennett signed the arbitration agreement and does not argue that there was a lack of consideration. Finally, in Ramirez v. Circuit City Stores, Inc. 12 Cal.App.3d 775, 90 Cal.Rptr. 916 (1970), the arbitration provision stated that the employee agreed to arbitrate any and all employment related disputes with the company. Unlike this case, the arbitration agreement defined “employment related legal disputes” specifically as disputes, claims or controversies of an employee. The court also found that the arbitration provision was void for other reasons, including that it limited the employee’s ability to proceed in a class action. Moreover, the court later withdrew the case from publication, thereby depriving it of any precedential value it may have had. Overall, we find no error in the district court’s finding that the arbitration provision is valid and enforceable. 2. Bennett also argues that the arbitration provision is invalid because it contains a cost sharing provision. Because the argument was not raised below, this court need not consider it. See Wiper v. Great Lakes Eng’g Works, 340 F.2d 727, 731 (6th Cir.1965). Even assuming that Bennett properly raised this argument, as Cisco points out in a supplemental filing, resolution of this issue is governed by this Court’s recent decision in Morrison v. Circuit City Stores, 317 F.3d 646 (6th Cir.2003) (en banc), where we rejected the idea that arbitration agreements which contain a cost sharing provision are per se invalid. Instead, Morrison requires consideration of such factors as the potential litigant’s *206ability to pay, the difference between the expected costs of arbitration (including the costs to other similarly situated employees) and a judicial forum, and whether the difference in costs is so substantial that it would deter bringing claims to arbitration. Because the record is not developed on these points, we decline to address Bennett’s arguments in light of Morrison. C. Defamation 1. As an initial matter, Bennett’s argument that the district court applied the wrong law lacks merit. The district court looked to Ohio law in adjudicating Bennett’s defamation claim. Although the district court cited Restatement (Second) of Agency and a California penal statute (to show that Bennett’s conduct was not only unethical but criminal in some states), Bennett does not argue that the district court applied an incorrect legal standard in granting summary judgment to Cisco. 2. The following background facts are relevant to addressing Bennett’s substantive arguments regarding his defamation claim: Bennett headed Ciscos’ sales operation in Florida and other states. Vince Roton-do was one of his sales agents. In April and May 1999, Bennett and Rotondo entered into an agreement with Frank and Omar Valdez in Miami, Florida in which the Valdezes would establish a software company to develop and market telecommunications software compatible with Cisco hardware. The company was established under the name Worldwide Web Systems, Inc. (Worldwide). Bennett met with the Valdezes in Florida as a representative of American Peripherals, Inc. (API), an Ohio corporation that Bennett’s wife, Marsa Bennett, formed in 1991 to sell computer equipment. Bennett, through API, invested in Worldwide. API invested $20 for a twenty percent ownership interest in Worldwide. Rotondo made a similar investment though a corporation owed by his wife. Worldwide then became a Cisco partner. Bennett then encouraged Cisco customers to purchase Cisco hardware and software from Worldwide. One such customer was American MetroComm Corporation (AMC), which entered into contracts with Worldwide totaling $50,000,000. Bennett assisted AMC in obtaining the necessary financing arrangements through Cisco Capital, a unit of Cisco. When Cisco Capital forwarded monies to AMC to fund the contracts, Bennett would go to Miami and meet with the Valdezes and receive checks payable to API, which Bennett would endorse and deposit in API’s account in Ohio. Bennett received checks payable to API totaling $2.5 million. Bennett and his wife each received checks from API for $96,000.00 as a “consulting fee.” Frank Valdez filed a lawsuit in December 1999 against Bennett and Rotondo seeking to end the relationship and accusing Bennett and Rotondo of extorting $5,000,000.00 from Worldwide using threats of violence. Bennett denies this and asserts that Worldwide lost AMC’s business because it became dissatisfied with Cisco’s products; after losing AMC, Worldwide tried to get API to reinvest in Worldwide. When API refused, Worldwide sued API and Bennett. On April 26, 2000, Cisco sued Worldwide and AMC in federal district court in California, seeking repayment of the loans to AMC made by Cisco Capital. That same day, Cisco filed its demand for arbitration claiming that the payments Bennett received were unlawful and improper. The next day, two articles appeared in the Wall Street Journal and Reuters News *207Service which Bennett says defamed him. The Wall Street Journal article quoted Cisco’s CFO, Larry Carter and “two unidentified Cisco officials.” The Reuters Article quoted Lorene Avery, a “Cisco spokeswoman.” Both articles identified Bennett and Rotondo by name, as well as other Cisco executives. The articles generally reported on the impropriety of Cisco executives having an interest in companies who do business with Cisco. The Reuters article focused on Bennett and Rotondo. Bennett lost his job at a Cisco competitor after the articles were published. 3. a. Ohio law defines libel (written defamation) as “a false and malicious publication made with the intent to injure a person’s reputation or expose him to public hatred, contempt, ridicule, shame or disgrace, or to affect him adversely in his trade or profession.” Thomas H. Maloney & Sons, Inc. v. E.W. Scripps Co., 43 Ohio App.2d 105, 107, 334 N.E.2d 494 (1974). In order to survive a motion for summary judgment in a libel action, the plaintiff must make a sufficient showing of the existence of every element essential to its case. The essential elements in a libel action are falsity, defamation, publication, injury and fault. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). There is no cause of action if the imputation is “substantially true.” Natl. Medic Serv. Corp. v. E.W. Scripps Co., 61 Ohio App.3d 752, 755, 573 N.E.2d 1148 (1989). b. The district court first determined that Cisco was entitled to summary judgment because Bennett had produced no admissible evidence that the statements in the articles were made by Cisco. The district court relied on Cisco’s answer to the complaint where it denied making the alleged defamatory statements. On appeal, Bennett says that the district court erred because “it is unclear whether Cisco denied making the false statements or whether it simply denied that the statements were false and defamatory.” Bennett argues that since Cisco’s answer simply contains a blanket denial of making the alleged defamatory statements, summary judgment was inappropriate. We disagree. First, Bennett never raised this argument in the district court. Second, it ignores the fact that it was Bennett who had the burden of providing admissible evidence that Cisco made the statements. Bennett failed to do so and the district court was correct in granting Cisco summary judgment on this ground. c. The district court alternatively found that summary judgment was appropriate because Bennett faded to demonstrate a genuine issue as to the material falsity of any of the alleged defamatory statements. Although the district court noted numerous undisputed facts, Bennett points to only one fact on appeal — he says that the district court erred when it stated that “Bennett admits that he used his position as an operations director for Cisco to cause AMC to purchase millions of dollars worth of hardware and software from Worldwide” and that he “used his position to arrange a sale of Cisco products and associated software through an authorized reseller of Cisco products.” Bennett denies making such admissions and says that AMC’s then-acting-president “made the decision to purchase products from the Cisco partner (Worldwide) not Bennett.” Cisco says that Bennett’s contention is misleading and there is no genuine issue of material fact that Bennett obtained the *208AMC contract for Worldwide. We agree. The “then-acting-president” of AMC that Bennett refers to is Peter Sahagen. Saha-gen’s decision was short-lived. He was soon replaced as president of AMC by Michael Henry, who cancelled the Worldwide contract. However, when Henry made the decision to place the new AMC contract with Worldwide, he stated in an affidavit that he would not have made that decision but for Bennett and Rotondo. Bennett admitted at deposition that Saha-gen’s decision was a “moot point” because the order was canceled and replaced with a new order approved by Henry. Bennett also testified at deposition that he did not believe that Worldwide would have gotten the contract with AMC without his involvement. Bennett’s wife and Rotondo also made similar statements. Thus, because Bennett has not presented more than a scintilla of evidence to the contrary, we find no error in the district court’s factual finding regarding Bennett’s use of his position at Cisco’s expense. Additionally, in determining that there was no genuine issue as to whether the statements in the newspapers were materially false, the district court carefully analyzed the evidence in detail and found that Bennett’s actions were in violation of Cisco’s policies and were in fact unethical and improper and concluded that Bennett’s defamation claim failed because the alleged defamatory statements were not materially false. We find no error in the district court’s conclusion, which Bennett, with the one exception discussed above that we have rejected, does not challenge on appeal. We rely on the district court’s reasoning and also conclude that there is no genuine issue that the alleged defamatory statements were not materially false and therefore Cisco was entitled to summary judgment. In any event, we have already determined above that summary judgment was proper because Bennett failed to produce admissible evidence that Cisco made the allegedly defamatory statements. III. CONCLUSION For the reasons stated above, we AFFIRM the judgments of the district court. . The arbitrator’s decision was issued during the pendency of this appeal. The arbitrator found that Bennett had breached his obligations under his employment agreement, abused his agency relationship, and violated his fiduciary duties by receiving kickbacks. The arbitrator awarded Cisco approximately $5.3 million dollars, plus interest and costs. The arbitrator also required Bennett to repay $430,607.43 in stock options that he had improperly exercised. . In the case against Bennett's alleged co-conspirator, Vince Rotondo, the United States District Court for the Southern District of Florida held the identical arbitration provision valid and enforceable. Rotondo made the same argument that Bennett makes here — that the arbitration provision does not impose a bilateral obligation to arbitrate. The district court rejected this argument, observing that the provision says that the employee will arbitrate disputes "with” Cisco, not disputes "against” Cisco. The district court was also persuaded by the fact, as are we, that there is nothing in the arbitration *205provision which "reserves [Cisco’s] right to avoid arbitration in claims against the employee.” See Rotando v. Cisco Systems, Inc., no. 00-1755-CIV-MOORE (S.D.Fl. Jan. 31, 2001) (unpublished).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217577/

ORDER This is an appeal from a district court order affirming a bankruptcy court’s October 30, 2000, opinion and order approving the agreed settlement that allowed the Internal Revenue Service’s (“IRS”) pre-petition claims. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). Michael I. Monus filed a Chapter 11 bankruptcy petition in the Bankruptcy Court for the Northern District of Ohio on September 25, 1992. The case was converted to a Chapter 7 liquidation case on June 14, 1995. The IRS filed an amended proof of claim for $3,865,019.94, involving federal income tax liabilities for 1988,1990, and 1991. The liability is based on unreported income embezzled from Phar-Mor, a company of which Monus was the president and chief operating officer. Monus was convicted of several crimes connected to this embezzlement, including the filing of false income tax returns. The jury found that the income tax returns were false because they concealed Monus’s embezzlement income. The conviction was affirmed on appeal. See United States v. Monus, 128 F.3d 376 (6th Cir.1997). The trustee filed an objection to this proof of claim. On October 30, 2000, after a telephone hearing, the bankruptcy court entered an “Agreed Settlement Order” settling the trustee’s objection to the IRS’s proof of claim. Thereafter, Monus filed an appeal from the bankruptcy court’s decision to the district court on November 6, 2000, asking the district court to vacate the Agreed Settlement Order and to remand the case to the bankruptcy court in order that the bankruptcy judge may: (1) refer Monus’s allegations of perjury against Pat Finn to the United States Attorneys Office pursuant to 18 U.S.C. § 3057; (2) order the completion of Finn’s examination pursuant to Fed. R. Bankr.P. 2004, in order to confirm Monus’s salary in relation to the IRS claims; and (3) conduct a formal hearing concerning Monus’s objections to the IRS claim. On September 18, 2002, the district court affirmed the agreed order and dismissed the appeal. Specifically, the *216district court held that Monus lacked standing to appeal the Agreed Settlement Order. Alternatively, the court held that the bankruptcy court did not abuse its discretion when it approved the Agreed Settlement Order. This appeal followed. The question of whether a party is a “person aggrieved” for purposes of appellate standing in bankruptcy is usually a question of fact and reviewed for clear error. See Marlow v. Rollins Cotton Co. (In re Julien Co.), 146 F.3d 420, 423 (6th Cir.1998); Fidelity Bank, Nat’l Ass’n v. M.M. Group, Inc., 77 F.3d 880, 882 (6th Cir.1996). In order to appeal a bankruptcy court’s order, a litigant must qualify as a “person aggrieved” by the order. See Morgenstern v. Reveo D.S., Inc. (In re Reveo D.S., Inc.), 898 F.2d 498, 499 (6th Cir.1990). A “person aggrieved” by a bankruptcy order must demonstrate that the order diminishes the person’s property, increases the person’s burdens, or impairs the person’s rights. See Fidelity Bank, Nat’l Ass’n, 77 F.3d at 882. Upon review, we conclude that the district court correctly found that Monus did not have appellate standing to object to the settlement between the IRS and the bankruptcy trustee. Insofar as the settlement order allows Monus to challenge the tax assessment outside the bankruptcy proceedings, Monus is not a “person aggrieved” as that term is defined in relevant Sixth Circuit law, and therefore, does not have standing to appeal the Agreed Settlement Order. In any event, the bankruptcy court did not abuse its discretion in approving the settlement. Sandoz v. Bennett (In re Emerald Oil Co.), 807 F.2d 1234, 1239 (5th Cir.1987). The complexity of the litigation coupled with the probability of success clearly indicated that entering a settlement was in the best interest of the estate. Accordingly, the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit,

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217578/

BATCHELDER, Circuit Judge. Timothy Watson appeals the district court’s order denying his motion to suppress evidence obtained by police officers who searched his apartment without knocking and announcing their presence before entering. Because we conclude that the officers executing the search warrant were not confronted by exigent circumstances sufficient to justify their entering the apartment without knocking and announcing, and because the warrant upon which they were proceeding was not a “no-knock” warrant and they had no basis for relying upon the good faith exception announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), we remand with instructions for the district court to vacate Watson’s guilty plea and grant his motion to suppress. I On February 8, 2000, Officer Jim Joyner of the Dyersburg Police Department filed an affidavit and request for a warrant to search the apartment of Defendant-Appellant Timothy Watson, whom Officer Joyner suspected of selling drugs. The investigation of Watson for narcotics trafficking began when one Henry Island came to the Dyersburg police station and volunteered that he was mad at Watson because Watson owed him money, that he had witnessed Watson selling drugs, and that he would be willing to wear a microphone and make a controlled buy of cocaine from Watson.1 Officer Joyner searched Island and, finding no drugs on his person, placed a microphone and transmitter on him and gave him $100 to make a cocaine purchase from Watson. Joyner sent Island off in a car driven by Island’s companion, Cecil Crandall, with instructions to go to Watson’s apartment and make the controlled buy. Neither Joyner nor any other officer searched Crandall or the passenger area of the car, although an officer did search the ear’s trunk. Officer Joyner followed Cran-dall and Island in a separate car and, in order to avoid suspicion, parked around the corner from Watson’s apartment building. Joyner therefore could not see Island enter or leave the building, and he could monitor the transaction only to the extent that he could hear whatever Island’s hidden microphone transmitted successfully. Island apparently entered Watson’s apartment, and Officer Joyner heard him speaking with other persons.2 Island then returned to the police station where he met Officer Joyner and turned over five pieces of crack cocaine that he said he had purchased from Watson. He also told Officer Joyner that Watson “was in the possession of a sawed-off shotgun.” although there is no indication in the record that Island actually saw such a weapon or specified where in the apartment Watson kept it.3 Officer Joyner filed a request for a “no-knock entry” search warrant supported by *219an affidavit which explained briefly that a “controlled buy” had taken place and noted the suspected presence of a sawed-off shotgun.4 Joyner verbally informed the issuing judge that he believed that Island had a criminal record. In fact, although Joyner had not done a background search on Island, he knew that Island had a criminal record, and, because he had not used Island before as an informant, he did not place a great deal of trust in him. Officer Joyner was more familiar with Watson: several years earlier, during the execution of a search warrant, Joyner and other officers had discovered Watson with crack cocaine and a firearm. Joyner also knew about earlier incidents in which Watson’s girlfriend had reportedly pulled a gun on another woman before fleeing with Watson in a car and, as the police attempted to stop them, someone threw drugs and a gun out of the car window; a burglary in which Watson and an accomplice robbed at gunpoint the occupants of a residence; and several other illegal activities in which Watson had participated as a juvenile. The record does not reflect, however, that Joyner advised the issuing judge of Watson’s history. When executing the search warrant, the police did not knock on the door or announce their presence before entering Watson’s residence. Though the officers recovered neither a shotgun nor crack, they found numerous other items indiea-five of drug trafficking, including a digital scale, a saucer with cocaine residue, over $8,000 cash and a .357 Magnum handgun. Watson was indicted on charges of possession with intent to distribute 0.4 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), and with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He filed a motion to suppress the evidence obtained during the search, claiming that Officer Joyner had presented the facts in his affidavit in a misleading manner in order to secure the search warrant, and that the officers had failed to knock and announce themselves when executing the search warrant. The district court, after holding a suppression hearing, denied the motion, finding that Officer Joyner did not make any misleading statements in obtaining the warrant, that the cocaine purchase made by Island was adequately monitored for the purposes of calling it a “controlled buy” in the affidavit supporting the search warrant, and that the no-knock entry was justified under United States v. Bates, 84 F.3d 790 (6th Cir.1996). Watson then entered into a plea agreement with the government pursuant to which the government dropped the cocaine charge and Watson pled guilty to the firearm possession charge, while reserving the right to appeal the denial of his motion to suppress.5 Watson was sentenced to 188 months in *220prison followed by 4 years of supervised release. He filed this timely appeal. On appeal, Watson claims that the district court erred in failing to suppress the evidence under the rationale of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and that the officers’ failure to knock and announce before entering Watson’s residence renders the fruits of their search inadmissible. He also alleges error based upon the district court’s finding that he qualified as an Armed Career Criminal under the Sentencing Guidelines. II We begin by addressing whether the evidence seized by Officer Joyner and the other officers who searched Watson’s apartment must be excluded because the officers did not comply with the “knock- and-announce” requirement set forth in Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), and similar cases. We review de novo a district court’s legal conclusions with respect to a motion to suppress, but disturb its “factual findings on the existence of exigent circumstances ... only if they are clearly erroneous.” Bates, 84 F.3d at 794 (internal quotations omitted) (citing United States v. Radka, 904 F.2d 357, 361 (6th Cir.1990)). We review the evidence in the light most favorable to the government. United States v. Harris, 255 F.3d 288, 292 (6th Cir.), cert. denied sub nom. Taylor v. United States, 534 U.S. 966, 122 S.Ct. 378, 151 L.Ed.2d 288 (2001). The Supreme Court has held that in general, the reasonableness requirement of the Fourth Amendment constrains police officers to knock and announce their presence and intentions before executing a search of a residence. See Wilson, 514 U.S. at 931-34. Nonetheless, “the knock- and-announce requirement [can] give way ‘under circumstances presenting a threat of physical violence,’ or ‘where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.’ ” Richards, 520 U.S. at 391 (quoting Wilson, 514 U.S. at 936). Allowing a “no-knock” entry when the “police ... have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by ... allowing the destruction of evidence,” serves to “strike[ ] the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries.” Id. at 394. We have determined that exigent circumstances which could justify a no-knock entry are present when (1) the persons within already know of the officers’ authority and purpose; (2) the officers have a justified belief that someone within is in imminent peril of bodily harm; or (3) the officers have a justified belief that those within are aware of their presence and are engaged in escape or the destruction of evidence. Bates, 84 F.3d at 795 (internal quotations omitted). “The government has the burden of proving that exigent circumstances existed,” and we “will closely scrutinize officers making a forced entry without first adequately announcing their presence and purpose.” Id. at 794-95. None of the three factors announced in Bates is present here. There is no evidence that Watson knew of the officers’ presence and purpose before they knocked down his door or that anyone within was in immediate peril of bodily harm. And *221though Watson was suspected of dealing in amounts of crack cocaine that were easily disposable, the police had no evidence before they made their presence known that Watson was aware of their presence and was engaged in escape or the destruction of evidence. See Richards, 520 U.S. at 395 (holding that police officers could execute a no-knock search when the suspected drug dealer cracked his door, realized that the police were without, and quickly slammed the door shut to prevent their entry); see also United States v. Elkins, 300 F.3d 638, 656-57 (6th Cir.2002) (allowing a no-knock entry when the officers knew that there were drugs on the premises and when the inhabitants of the residence knew of the officers’ presence and would likely try to destroy evidence as a result). As we stated in United States v. Haddix, 239 F.3d 766 (6th Cir.2001), “ ‘[notwithstanding the ease in which narcotics can be destroyed, a warrantless entry into the home of a suspected drug trafficker, effected without an objectively reasonable basis for concluding that the destruction of evidence is imminent, does not pass constitutional muster.’ ” Id. at 768 (quoting Radka, 904 F.2d at 361). The same is true of a no-knock entry. We must still consider, however, whether the officers had “a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would [have been] dangerous. ...” Richards, 520 U.S. at 394. In Bates, we stated that “[t]he presence of a weapon creates an exigent circumstance, provided the government is able to prove they possessed information that the suspect was armed and likely to use a weapon or become violent.” 84 F.3d at 795. While evidence that firearms are within a residence is, by itself, insufficient to show an exigent circumstance, such evidence may be sufficient if combined with “a criminal record reflecting violent tendencies, or a verified reputation of a suspect’s violent nature.... ” Id. The district court found that the suspected presence of a firearm (based upon information from Island), combined with Officer Joyner’s knowledge of Watson’s criminal past and the ease with which the evidence could be destroyed, rendered the no-knock entry permissible. We do not think, under the circumstances, that Officer Joyner could reasonably rely on the information he possessed regarding the presence of a shotgun for the purposes of executing a no-knock warrant. We reach this conclusion for several reasons. First, the information from Island was unverified and highly unreliable. Joyner acknowledges that he had never dealt with Island before, but knew that Island had a criminal record. Island, who was personally well acquainted with the criminal justice system, came to Officer Joyner offering his assistance because he was angry at Watson over money that Watson allegedly owed him. While we do not suggest that Joyner should have entirely discounted Island’s information, see United States v. Czuprynski, 46 F.3d 560, 564-65 (6th Cir.1995) (en banc) (noting that “[t]o require a police officer to discount such information [from an individual with a personal motive of revenge] would result in the rejection of a good deal of evidence relied upon daily by courts and juries”), we think that in light of his knowledge of Island’s motivation and criminal record, Joyner had a particularly strong duty under the “totality of the circumstances” to corroborate independently the veracity of Island’s statements. Illinois v. Gates, 462 U.S. 213, 241-42, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (emphasizing “the value of corroboration of details of an informant’s tip by independent police work.”). Though Officer Joyner did attempt to verify the pres*222ence of drugs at Watson’s apartment,6 he made no attempt to verify Island’s vague and conclusory statement that “Watson is in possession of a sawed-off shotgun.” Moreover, Island’s statement regarding the presence of a shotgun lacks the necessary specificity to support a finding that the officers would be in danger sufficient to justify a no-knock entry. There is an appreciable difference between, for instance, Watson’s having a shotgun that he kept in a back closet, and his having a shotgun that he kept next to an open store of drugs or at the end of a living room couch. See, e.g., United States v. Williams, No. 98-3526, 1999 U.S.App. LEXIS 27409, at *18, 1999 WL 993997 (6th Cir. Oct. 22, 1999) (allowing a no-knock entry when the confidential informant alerted the police that the drug-dealing suspect had a handgun ready whenever he answered the door). Island did not provide-and apparently Joyner did not ask for-information about whether the shotgun was readily available to Watson in the apartment. Because Officer Joyner did not have reliable information that Watson had a shotgun in the apartment, we need not examine whether Watson had violent tendencies in order to hold that the officers did not have reasonable suspicion that knocking and announcing their presence would be dangerous, futile or destructive of the purpose of their search. Ill The government argues that, regardless of the presence or lack of exigent circumstances, the exclusionary rule does not apply to the evidence obtained in the search of Watson’s residence because the officers relied in good faith on a no-knock warrant that was validly issued by an impartial magistrate. In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Court held that even when a search warrant is determined to be defective after it has been executed, so long as the police officer “acted in good faith in conducting the search,” and had “reasonable grounds for believing that the warrant was properly issued,” the evidence obtained from the search will not be excluded. 468 U.S. at 922-23 (internal quotations omitted). It is the judicial officer’s responsibility to determine whether probable cause exists to issue a warrant, and, in the ordinary case, police officers cannot be expected to question that determination. Because the officer’s sole responsibility after obtaining a warrant is to carry out the search pursuant to it, applying the exclusionary rule in these circumstances could have no deterrent effect on a future Fourth Amendment violation by the officer. Illinois v. Krull, 480 U.S. 340, 349, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). The key to determining in any particular case whether the evidence seized pursuant to an invalid warrant must be suppressed is whether the “officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues [was] objectively reasonable.” Leon, 468 U.S. at 922. The Court went on to say, “it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued,” and in those *223circumstances suppression of the evidence is an appropriate remedy. Id. at 922-23. The Court explicitly held that an officer would not “manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Id. at 923 (citations omitted). Whether the warrant in this case is, as both the government and Watson believe, a “no-knock” warrant is questionable. It is true that the affidavit submitted by Officer Joyner specifically requests a “No-Knock entry.” However, the warrant itself merely authorizes Officer Joyner to search the “person and premises” of the property described in the warrant; it neither makes reference to the affidavit nor grants Joyner permission to enter the apartment without knocking and announcing. Tennessee law is clear on the relationship between the affidavit supporting the search warrant and the warrant itself: Despite the fact that an affidavit is integral to the issuance of a search warrant, in Tennessee, it is not considered an actual part of the warrant, even if it appears on the same printed form as the warrant.... A search warrant may, however, be construed with a supporting affidavit if the affidavit accompanies the warrant and the warrant expressly incorporates the affidavit by reference. State v. Lowe, 949 S.W.2d 300, 303 (Tenn.Crim.App.1996). We think that under Tennessee law, this is not a “no-knock” warrant. But even if Officer Joyner believed it was, that fact does not end our inquiry. In Richards, the Court noted in a footnote that several states give magistrates the authority to issue “no-knock” warrants “if the officers demonstrate ahead of time a reasonable suspicion that entry without prior announcement will be appropriate in a particular context.” 520 U.S. at 396 n. 7. The Court viewed this practice as “entirely reasonable when sufficient cause to do so can be demonstrated ahead of time.” Id. In United States v. Johnson, 267 F.3d 498 (6th Cir.2001), reviewing a search conducted pursuant to a “no-knock” warrant,7 this circuit held that the fact the warrant authorizing the search also authorizes an entry without knocking does not end the inquiry because “[t]he Supreme Court has specifically held that whether officers announce themselves before a search constitutes a factor in the reasonableness inquiry required by the Fourth Amendment,” id. at 500, and the court is required to determine “whether the allegations contained in the warrant application were sufficient to support a conclusion that exigent circumstances justified the issuance of no-knock authority.” Id. Whether the affidavit in this case contains sufficient indicia of probable cause as to justify the issuance of the search warrant is questionable at best, given the unreliability of the informant and the lack of corroboration of the informant’s evidence. But it is certainly clear that when Officer Joyner sought the warrant he neither had nor presented in the affidavit the kind of information that would have justified “a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime_” Rich*224ards, 520 U.S. at 394 (emphasis added). At best, Joyner had the word of an informant whom Joyner himself did not view as rehable that there were drugs in the apartment and that Watson “was in possession” of a weapon whose location was not disclosed. As we observed in Johnson, “[h]ad the affidavit merely contained generalized allegations of drug dealing within the residence, the government would not have demonstrated the kind of exigency required to justify a no-knock warrant.” Id. at 501. Similarly, we think that the generic statement that Watson was in possession of a weapon is insufficient to describe the kind of exigency demanded by Richards and Bates, i.e., that the officers have reason to believe “that knocking and announcing their presence ... would be dangerous,” Richards, 520 U.S. at 394, because “the suspect [isjarmed and likely to use a weapon or become violent.” Bates, 84 F.3d at 795. Finally, we conclude that Officer Joyner did not “manifest an objective good faith,” Leon, 468 U.S. at 923, in relying on the warrant. After Wilson in 1995 and Richards in 1997, every reasonably well-trained officer should have known that more is required to excuse the knock-and-announce requirement than the conclusory and wholly unspecific statements Officer Joyner presented in the affidavit supporting his request for the warrant. Indeed, by the year 2000, when this warrant was executed, we could expect that officers in this circuit should have been aware of the Bates requirements detailed hereinabove. For the foregoing reasons, we hold that the “no-knock” entry into Watson’s apartment was not justified, and the evidence seized during the ensuing search must be suppressed. It is therefore not necessary for us to address Watson’s claim that the district court erred in finding that the search warrant was not invalid under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), or Watson’s claim of sentencing error. IV Accordingly, we VACATE Timothy Watson’s guilty plea and sentence, and remand this matter to the district court with instructions to grant the motion to suppress. . Island, though willing to aid in the cause of law enforcement in this instance, was not exactly a choir boy. In fact, he had been convicted not only of the sale of a Schedule IV controlled substance, but also of grand larceny, petit larceny, auto theft, and forgery (twice). . The verbal exchange among Watson and the other individuals does not indicate whether a drug transaction actually took place. .At the suppression hearing, the following exchange took place between the government’s attorney and Officer Joyner: Attorney: Did Mr. Island indicate anything to you about the presence of firearms at Mr. Watson's residence? Joyner: Yes, he did. He told me that Mr. Watson was in the possession of a sawed-off shotgun. J.A. 108. . In pertinent part, the affidavit stated: Island was sent to the residence by affiant and did purchase $100 worth of crack cocaine. The transaction was monitored and recorded by Affiant, and the substance field tested positive for cocaine base. Due to the fact that Island has seen several sales of cocaine conducted by Watson from the residence, Island knows that Watson stores cocaine in the residence for resale.... Island further states that Watson is in possession of a sawed-off shotgun therefore a "No Knock” entry is requested. J.A. 23. . Watson also filed an objection to his presen-tence report, contesting his classification as an Armed Career Criminal under the Sentencing Guidelines. The district court agreed with part of the defendant’s objections to the presentence report, but held that Watson should be classified as an Armed Career Criminal even taking those objections into account. . Though we need not rule today on the sufficiency of the "controlled” buy Island made, we note that the failure to search all of Cran-dall's car and the fact that the officers monitoring the transaction could not see the building in which Watson’s apartment was located and therefore did not have firsthand knowledge that Island even entered that building, cast significant doubt on the alleged source of the cocaine Island supposedly purchased. . Although we held in Johnson that the defendant had forfeited his claim that the warrant did not authorize a "no-knock” entry, we noted that the defendant was clearly incorrect in that claim because, unlike the warrant in the case before us, the warrant explicitly incorporated by reference the affidavit’s request to enter the premises without knocking. Johnson, 267 F.3d at 500.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217580/

PER CURIAM. In our original opinion in this case, we affirmed defendant Phillip Wayne Davis’s conviction for conspiracy to distribute marijuana and his resulting 121-month sentence. Davis then filed a petition for rehearing and suggestion for rehearing en banc based on the United States Supreme Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because the Appren-di decision is applicable to cases pending at the time of its release, we find it necessary to grant the petition to rehear in order to address the issue raised in that petition. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (holding that appellate courts should apply new constitutional rules retroactively *235to cases still on direct review). We therefore amend our original opinion to incorporate the following analysis. Davis is correct in asserting that the indictment charging him with conspiracy did not include the drug quantity attributable to the offense for which he was convicted and also in his contention that the jury was not asked to determine the drug quantity, both in violation of the ruling in Apprendi However, because he did not object to either omission in the district court, we review the sentencing order for plain error only. See United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002); United States v. Bartholomew, 310 F.3d 912, 926 (6th Cir.2002). Finding no such error, we again affirm the district court’s judgment. As indicated in the initial opinion, Davis was one of 15 co-defendants in a wide-ranging conspiracy. All but two of the defendants, Davis and one other, pleaded guilty. Davis went to trial and was convicted by a jury. Following his conviction, the probation officer assigned to the case filed a pre-sentence report holding Davis responsible for 70-80 kilograms of marijuana. Davis did not object to that calculation, but the government did, citing trial testimony of co-defendants as to the quantity of marijuana that Davis assisted in distributing. After reviewing the testimony, the probation officer recalculated the marijuana quantity and determined that Davis was responsible for between 113 and 272 kilograms of marijuana. Davis objected to this adjusted amount, arguing that the original pre-sentence report contained the correct amount. At the sentencing hearing, the district court found Davis was responsible for all 862 kilograms of marijuana involved in the entire conspiracy. The court sentenced Davis to 121 months incarceration, which was within the sentencing guidelines range of 121-151 months. Davis argues that in imposing a sentence of 121 months, the district court violated Apprendi which held “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. Under 21 U.S.C. § 841(b)(1)(D), the maximum sentence for possessing or conspiring to distribute an unspecified amount of marijuana up to 50 kilograms of marijuana is five years. See Bartholomew, 310 F.3d at 925. The statutory maximum for possessing or conspiring to distribute between 50 and 100 kilograms of marijuana is 20 years. See 21 U.S.C. § 841(b)(1)(C).1 The statutory maximum for possessing or conspiring to distribute 100 kilograms or more of marijuana is 40 years, with a five-year mandatory minimum. See 21 U.S.C. § 841(b)(1)(B). Davis contends that in the absence of a jury determination that he conspired to distribute at least 50 kilograms of marijuana, he is constitutionally subject to no more that five years’ imprisonment. We disagree. Under the plain error test of Federal Rule of Criminal Procedure 52(b), there *236must be (1) error, (2) that is plain, and (3) that affects the defendant’s substantial rights. See Cotton, 122 S.Ct. at 1785. “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if ... the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks and citations omitted). We conclude that the Supreme Court’s opinion in Cotton precludes a finding of plain error in Davis’s case. In Cotton, the Court held that enhancement of the sentence by the trial judge based on the amount of drugs does not constitute plain error when the error does not seriously affect the fairness of the proceeding because the drug amount used in sentencing a defendant was in fact clearly shown. See 122 S.Ct. at 1786; see also United States. v. Harris, 293 F.3d 970, 974 (6th Cir.2002). If the evidence is “overwhelming” and “essentially uncontro-verted,” then there is simply no basis for concluding that the error “seriously affected] the fairness, integrity, or public reputation of judicial proceedings.” Cotton, 122 S.Ct. at 1786. In this case, the evidence was overwhelming that defendant’s involvement in the conspiracy met the minimum drug quantity to justify the sentence imposed. Davis did not object to the initial pre-sentence report, which held him responsible for 70-80 kilograms of marijuana. Indeed, after the pre-sentence report was revised, Davis objected to being responsible for the higher amount of marijuana calculated by the probation officer, arguing that the original estimate of 70-80 kilograms was the accurate figure. Hence, Davis’s sentence falls under 21 U.S.C. § 841(b)(1)(C), which provides for a sentence of not more than 20 years. Because Davis’s sentence of 121 months does not exceed the 240 month maximum established by § 841(b)(1)(C), its imposition can not be held to be reversible error. For the reasons set out above, we conclude that the defendant’s claim for relief under Apprendi is foreclosed by the Supreme Court’s subsequent opinion in Cotton, that no plain error was committed in connection with his sentence, and that the district court’s judgment must be AFFIRMED. . Although the text of § 841(b)(1)(C) does not explicitly state that it applies where a defendant is responsible for 50 to 100 kilograms of marijuana, case law indicates that it is the appropriate penalty provision for that amount of marijuana. See, e.g., United States v. Covington, 2001 WL 302067, at *5, 7 Fed.Appx. 386 (6th Cir. March 21, 2001) ("With regard to marijuana, sections 841(b)(1)(A) and (B) apply to amounts of marijuana in excess of 100 kilograms or more. Section 841(b)(1)(D) applies to amounts of marijuana of less than 50 kilograms. Section 841(b)(1)(C) applies to quantities of marijuana of at least 50 but less than 100 kilograms.”); see also United States v. Graham, 275 F.3d 490, 524 n. 23 (6th Cir.2001).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217632/

MEMORANDUM** John Louis Brinar appeals the district court’s revocation of his supervised release following his guilty plea conviction for possession and transfer of a machine gun in violation of 18 U.S.C. § 922(o) and 26 U.S.C. § 5861(e). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s decision to revoke supervised release for abuse of discretion. See United States v. Musa, 220 F.3d 1096, 1100 (9th Cir.2000). To the extent that such a decision involves a question of statutory interpretation, the review is de novo. See United States v. Turner, 312 F.3d 1137, 1142 (9th Cir.2002). We affirm. Brinar contends that the district court erred in revoking his supervised release because he violated conditions that were either unclear or improperly imposed by the probation officer rather than the district court. We disagree. The terms of Brinar’s supervised release clearly provided that he must answer truthfully the probation officer’s questions, follow the officer’s instructions, seek regular and lawful employment, and submit to home inspection. All of these provisions are standard conditions of supervised release. See 18 U.S.C. §§ 3583(d), 3563(b). The district court did not abuse its discretion in revoking Brinar’s supervised release because there was ample evidence supporting its finding that Brinar violated all of these provisions. See United States v. Schmidt, 99 F.3d 315, 319-20 (9th Cir.1996), overruled on other grounds by United States v. Palomba, 182 F.3d 1121, 1123 (9th Cir.1999). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224374/

*1186TABLE OF CONTENTS ORDER PAGE Order Vacating Entry of Judgment (1/17/95) 1187 Order Denying Motion by Duwamish, Snohomish and Steilaeoom Indian Tribes to Reopen Judgment Under Rule 60(b) (1/23/95) 1188 *1187Order Granting in Part and Continuing in Part Muckleshoot’s Motion for Partial Summary Judgment (7/5/95) 1191 See Ap-Order re: Implementation of Shellfish Proviso, 898 F.S. 1453 (8/28/95) pendix Order Granting Muckleshoot’s Motion for Partial Summary Judgment (10/4/95) 1194 Memorandum Opinion and Order Granting in Part and Denying in Part Plaintiffs See Ap-Motion to Alter or Amend Judgment, 909 F.S. 787 (12/18/95) pendix Order re: Granting Preliminary Injunction (3/22/96) 1196 Minute Entry: In Chambers Proceeding (4/11/96) 1199 Order Granting Motions for Approval of Settlement Agreements and Denying Request that Dismissal Without Prejudice by Conditional on Payment of Defense Costs and Attorney Fees (7/11/96) . 1199 Order Granting Makah’s Motion for Partial Summary Judgment and Denying Oregon’s Cross Motion for Summary Judgment and Washington’s Motion for Stay (11/4/96) 1245 Decision by the Special Master (11/26/96) 1247 COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 1996) ORDER VACATING ENTRY OF JUDGMENT Subproceeding No. 89-3. (January 17, 1995) RAFEEDIE, District Judge. The clerk is ordered to VACATE the entry of judgment entered on December 20, 1994. The memorandum decision issued by this Court disposes only of the treaty interpretation issues and is only a partial judgment, which should not be separately entered. Before the Court are still issues of injunc-tive relief, claims for equitable relief, time, place, and manner restrictions, if any, on shellfish harvesting, and other issues raised by the pleadings. These and other issues cannot be resolved, for example, until there has been a determination of the location of shellfish beds covered by the Court’s decision. It was on these latter issues that the Court sought the parties’ input and agreement, if possible, considered in light of the Court’s treaty interpretation. To the extent that the parties are unable to agree on such issues, the Court will decide them. Until final judgment has been entered, the status quo ante shall remain in effect. Accordingly, the recent motion by the inter-venor growers for a stay pending appeal or for equitable relief is premature until a final judgment has been entered. IT IS SO ORDERED. IT IS FURTHER ORDERED that the Clerk of the Court shall serve, by United States mail, copies of this Order on counsel for the parties in this matter. *1188ORDER DENYING MOTION BY DU-WAMISH, SNOHOMISH AND STEILACOOM INDIAN TRIBES TO REOPEN JUDGMENT UNDER RULE 60(b) Subproceeding No. 93-2 (January 23, 1995) BARBARA JACOBS ROTHSTEIN, District Judge. THIS MATTER comes before the court on a motion by the Duwamish Indian Tribe, the Snohomish Indian Tribe and the Steilacoom Indian Tribe (“the tribes”) under Fed.R.Civ.P. 60(b) to reopen a judgment entered in this case on March 23, 1979. Having reviewed the motion together with all documents filed in support1 and in opposition, having heard oral argument, and being fully advised, the court finds and rules as follows: I. FACTUAL BACKGROUND In 1974, United States District Court Judge George H. Boldt held that tribes in Washington Territory which had signed treaties in the 1850’s relinquishing their aboriginal rights to land in exchange for the right to take fish at all usual and accustomed places were entitled to take up to fifty percent of the harvestable fish passing through their off-reservation fishing grounds. United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976). See also, State of Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). Among the tribes intervening in the case before Judge Boldt in 1974 to assert treaty fishing rights were the Duwamish, Snoho-mish, Steilacoom, Snoqualmie and Samish Indian Tribes. On September 13, 1974, Judge Boldt referred the issue of the treaty-tribe status of these intervenors to a magistrate. After holding several hearings, the magistrate issued a report concluding that none of the five intervenor tribes qualified as a successor to a treaty tribe. Pursuant to an appeal by the five tribes from the magistrate’s report, Judge Boldt ordered a de novo evidentiary hearing in August of 1975, directed the tribes to submit additional evidence in March of 1976, and heard oral argument on the matter in January of 1977. In February of 1978, Judge Boldt underwent surgery for an aortic aneurysm which occasioned a lengthy period of convalescence. Early in 1979, Judge Boldt asked to be relieved of his judicial duties because of his failing health. On February 16, 1979, two of the three moving tribes in this case requested that Judge Boldt be allowed to resolve the still pending issue of the five intervenor tribes’ treaty status. In an order dated March 14, 1979, Chief Judge Walter T. McGovern granted the motion on the grounds that it was “in the best interests of judicial administration and economy, and in the interest of all parties.” In a footnote, Judge McGovern stated that “[t]he court has been informed that Judge Boldt is willing, if requested, to consider and issue a ruling on this matter.” Judge Boldt issued his decision on March 23, 1979. In doing so, he adopted with minor changes the proposed findings of fact and conclusions of law submitted by the United States. On April 25, 1979, he issued a brief order denying the tribes’ *1189motion for reconsideration. The Ninth Circuit affirmed the decision, 641 F.2d 1868 (1981), and the United States Supreme Court denied the tribes’ petition for certiorari. 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). The Duwamish, Snohomish and Steila-coom Tribes now move to reopen the judgment of March 28, 1979 pursuant to Fed. R.Civ.P. 60(b)(6) for the purpose of conducting discovery into the state of Judge Boldt’s mental health at the time he rendered his decision. The motion is prompted by an article published on June 11,1992 in the Seattle Post-Intelligencer which states that, according to Judge Boldt’s death certificate issued in March of 1984, he suffered the onset of Alzheimer’s Disease in 1978, the year before the decision at issue was made. This motion is opposed by the United States, the State of Washington, and numerous other tribes involved in the lengthy litigation over fishing rights in the state of Washington. II. LEGAL ANALYSIS A. Applicable Standard Rule 60 governs relief from judgments and orders of the court. Rule 60(b)(6) provides as follows: (b) On motion and upon such terms as are just, the court may relieve a party or a party’s legal representatives from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment. The United States Supreme Court described the operation of this rule in Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988): Rule 60(b)(6)... grants federal courts broad authority to relieve a party from a final judgment “upon such terms as are just,” provided that the motion is made within a reasonable time and is not premised on one of the grounds for relief enumerated in clauses (b)(1) through (b)(5). The Rule does not particularize the factors that justify relief, but we have previously noted that it provides courts with authority “adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice,” while also cautioning that it should only be applied in “extraordinary circumstances.” (Footnotes and citations omitted.) Thus the question here is whether extraordinary circumstances exist in this ease such that justice requires reopening Judge Boldt’s decision of March 23, 1979. For the following reasons, the court concludes that the tribes’ motion should be denied. B. Factors to be Considered 1. Timeliness The parties opposing the motion challenge its timeliness, emphasizing that all of the facts now brought to the court’s attention about Judge Boldt’s failing health and the circumstances surrounding his decision were known in 1979 with the exception of the information on the death certificate issued in 1984. The opposing parties stress that death certificates are matters of public record readily available on request. While it is true that fifteen years have passed since the decision at issue and ten years since Judge Boldt’s death, the court declines to deny the tribes’ motion on this ground alone.2 As the tribes’ counsel *1190pointed out, it is not customary for litigants to comb a judge’s death certifícate in hopes of finding evidence supporting a challenge to the judge’s competency at the time he rendered a decision. 2. Public Interest in Finality of Judgments Even if the moving tribes should not be held strictly account able for the long delay in challenging Judge Boldt’s decision, the court must still take into account the public interest in maintaining the finality of judgments. The law recognizes the need for stability in precedents and stare decisis. This case provides an excellent example of the damage that might result if parties to a case and the general public were unable to rely on court judgments. The passage of time has markedly changed the landscape of this case. For many years now, state-tribal fish management plans have been drawn up and allocation decisions made in reliance on the 1979 judgment. Disturbing the judgment at this late date would prejudice many other parties who have depended on its finality. Moreover, in addition to damaging the interests of the parties in this particular case, there is the unmeasurable danger resulting from a precedent that would encourage parties to reopen judgments for the purpose of questioning judicial competency even long after the events in question. 3. Need for Correction of Injustice But the moving tribes argue that the issue posed by this case brings the need for finality into direct conflict with the quest for justice, and that the need to correct an injustice should outweigh the need for finality. After carefully examining all of the events surrounding this case, the court concludes that, contrary to the moving tribes’ contention, it is not confronted with this exceedingly difficult determination because no manifest injustice was done. The moving tribes do not assert that they were prevented from receiving a full and fair hearing by virtue of being unable to submit relevant evidence or arguments. The record reveals that they were given ample opportunity to submit exhibits, present testimony and file briefs in support of their respective positions. They raise instead the possibility that Judge Boldt may have suffered from a mental impairment at the time he signed the final order of March 28,1979 which rendered him incompetent to carry out his judicial functions. But Judge Boldt was not the only judicial officer to review the moving tribes’ contentions and reach the same conclusion. On March 7, 1975, Magistrate Robert E. Cooper issued a report setting forth his independent conclusion that none of the moving tribes had established their status as a treaty tribe or the successor to a treaty tribe. This report was based on five days of hearings as well as testimony and evidence submitted by the moving tribes. More significantly, the Ninth Circuit reached the same result in affirming Judge Boldt’s decision on appeal at 641 F.2d 1368 (9th Cir.1981). The moving tribes stress that the standard of review in such cases is not de novo, and that findings of fact are only reviewed for clear error. But it is apparent from the text of the appellate opinion that the Ninth Circuit did much more than that in this instance. *1191After reviewing Judge Boldt’s decision, the court concluded that the judge had applied the wrong standard in determining whether tribal structure had been maintained. The court went on to explain the proper scope of the inquiry and factors to be considered. Finally, the Ninth Circuit itself reviewed the evidence to determine whether, as a matter of fact, the groups in question had maintained an organized tribal structure since treaty time. The court concluded “[ajfter close scrutiny, ... that the evidence supported [the] finding of fact” that they had not done so, and that “the district court correctly resolved this question despite its failure to apply the proper standard.” (emphasis supplied) 641 F.2d at 1373,1374.3 Given the language in the Ninth Circuit opinion indicating that the court carefully examined the evidence presented by the moving tribes before deciding to affirm Judge Boldt’s findings as correct, this court concludes that the moving tribes have failed to make the kind of showing of manifest error necessary to even consider reopening a judgment so many years after its entry. As the moving tribes acknowledge, the public interest in the finality of judgments is great, particularly in protracted, emotionally charged litigation like United States v. Washington, which aroused intense public reaction during the 1970’s. Whereas the need for continued reliance on the finality of Judge Boldt’s ruling is great, the court can find no countervailing need for disturbing that finality in order to correct a manifest error because the result does not rest on Judge Boldt’s decision alone. III. CONCLUSION The court concludes that the moving tribes have failed to demonstrate the existence of any extraordinary circumstances which would warrant reopening the final order of March 23, 1979 for the purpose of conducting discovery into Judge Boldt’s mental health. Their motion is accordingly DENIED. ORDER GRANTING IN PART AND CONTINUING IN PART MUCKLE-SHOOT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Subproceeding No. 86-5 (July 5, 1995) THIS MATTER comes before the court on a motion by the Muckleshoot Tribe for partial summary judgment on the question of clarifying two findings concerning the usual and accustomed fishing areas of the Lummi Indian Nation and the Swinomish Indian Tribal Community as previously adjudicated by the court. Having reviewed the motion together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows: In 1974 and 1975, Judge George Boldt entered findings concerning the usual and accustomed fishing places of the Lummi Indian Nation and the Swinomish Indian Tribal Community. The Muckleshoot Tribe now moves for a clarification that those places as described by Judge Boldt do not include any portion of Puget Sound Commercial Salmon Management and Catch Reporting Area 10 (“Area 10”). A. Compliance with Paragraph 25 Lummi and Swinomish both argue as a preliminary matter that Muckleshoot failed to follow the required procedure of *1192convening an official conference pursuant to Paragraph 25 of the permanent injunction in United States v. Washington, and then filing a separate subproceeding.1 Although they are correct, they have not stated any practical reason for requiring technical compliance with Paragraph 25 under the circumstances of this case. There is no question that both Lummi and Swinomish have had notice of the existence of the issue for several years. With regard to Lummi, Muckleshoot did convene and hold a conference. The court fails to see how Muckleshoot’s failure to file a separate subproceeding prejudices Lummi or affects Lummi’s ability to respond. As for Swinomish, Muckleshoot brought the issue to the tribal community’s attention in writing as early as 1991 and exchanged correspondence with Swinomish over the course of the next 2-1/2 years. See Exs. A, B, C, J, K, L and R to Dec. of Gregory O’Leary filed on April 6, 1995. This is not a situation in which Muckle-shoot seeks a factual or legal determination of a new issue. The only ruling sought is clarification of two findings in prior court orders. Since the parties have had ample notice, the court does not see the necessity for formal compliance with Paragraph 25. B. Lummi Nation Fishing Areas Judge Boldt’s Finding No. 46 at 384 F.Supp. at 360-61 in 1974 regarding Lum-mi’s usual and accustomed fishing places at treaty times states in relevant part that they “included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bellingham Bay.” United States v. Washington, 384 F.Supp. 312, 360-61 (W.D.Wash.1974), aff'd 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976). Area 10 is roughly bounded on the north by the Edmonds-Kingston ferry lane. Muckleshoot insists that the Lummi adjudicated fishing places do not reach as far south as the northern boundary of Area 10. In support of this contention, Muckle-shoot offers the declarations of University of Washington geography professor Richard Morrill and Muckleshoot biologist Paul Hage as well as the 1989 testimony of Dr. Barbara Lane. Lummi moves to strike the testimony of these three witnesses. As to Richard Morrill and Paul Hage, the court concludes that Lummi’s motion has merit. Richard Morrill was not disclosed as a possible expert by the established deadline, and the court rejects Muckleshoot’s argument that he qualifies as a rebuttal expert. Moreover, the declarations of Mr. Morrill and Mr. Hage constitute new evidence which Judge Boldt did not have before him. The court concludes that the declarations supplement the record rather than assisting the court in determining Judge Boldt’s intent at the time of his decision.2 *1193However, Dr. Lane’s testimony is on a different footing in that it was her research and the ensuing report which Judge Boldt consulted in reaching a decision on the Lummi usual and accustomed fishing places. Even though the testimony cited by Muckleshoot was not given by Dr. Lane until 1989 in another subproceeding, it addresses the very same language on which Judge Boldt relied in making his finding in 1974. Under these circumstances, the court concludes that Dr. Lane’s testimony does not supplement the record, but assists the court in determining the original intent of the ruling. Lummi also argues that Muckleshoot failed to list Dr. Lane as an expert for purposes of this subproceeding. While this is true, Dr. Lane is hardly a stranger to this litigation and the testimony invoked by Muckleshoot is already in the public record of another subproceeding. Under these circumstances, the court concludes that Dr. Lane’s testimony should not be stricken. Instead Lummi will be given an opportunity to depose Dr. Lane and to submit an additional response to Muckle-shoot’s motion. C. Swinomish Indian Tribal Community Fishing Areas In 1975, Judge Boldt entered Finding No. 6 at 459 F.Supp. at 1049, which stated that Swinomish’s usual and accustomed fishing places included “the Skagit River and its tributaries, the Samish River and its tributaries and the marine areas of Northern Puget Sound from the Fraser River south to and including Whidbey, Camano, Fidalgo, Guemes, Samish, Cypress and the San Juan Islands, and including Bellingham Bay and Hale Passage adjacent to Lummi Island.” United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash.1978) (Orders of March 8, 1975 and April 18, 1975). The most southerly point of land in Judge Boldt’s description is the southern tip of Whidbey Island, which is about seven miles north of the northernmost part of Area 10. Thus, Judge Boldt’s Finding No. 6 does not include any part of Area 10. The response filed by Swinomish includes argument about other orders entered by the court, a declaration from an anthropologist, and excerpts from oral and written testimony by Dr. Lane on subjects other than the finding at issue. But all of this argument and evidence is outside the very narrow scope of the issue before the court, which focuses on the proper interpretation of the language of Judge Boldt’s Finding No. 6. None of the evidence offered by Swinomish addresses this narrow question. Swinomish also argues that there is a genuine issue of material fact about whether Finding No. 6 encompasses some part Area 10 because the finding includes the marine areas surrounding Whidbey Island. Swinomish contends that the extent of those areas is ambiguous. Even assuming that Finding No. 6 might be construed to include marine areas surrounding Whidbey Island and that the actual extent of those areas is unclear, the court concludes that this ambiguity cannot be stretched to involve any waters in Area 10, which is a full seven miles south of Whidbey Island. Muckleshoot’s motion for partial summary judgment is accordingly GRANTED as to Swinomish. The usual and accustomed fishing places of Swinomish as previously adjudicated by the court in Finding No. 6 at 459 F.Supp. at 1049 do not include waters within Area 10. Muckleshoot’s motion for partial summary judgment is CONTINUED as to Lummi. Lummi is directed to inform the court within ten days of the date of this order about whether counsel wishes to depose Dr. Lane and if so, when the deposi*1194tion will be scheduled and when Lummi’s additional response to Muekleshoot’s motion will be filed. ORDER GRANTING MUCKLESHOOT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Subproceeding No. 86-5 (October 4, 1995) This matter comes before the court on a motion by the Muckleshoot Tribe for partial summary judgment clarifying a finding concerning the usual and accustomed fishing areas of the Lummi Indian Nation. In a prior order entered on July 6, 1995, this court continued the motion so that Lummi could depose Dr. Barbara Lane. Having reviewed the supplemental briefs submitted by both Lummi and Muckleshoot as well as the other documents filed in support and in opposition, the court finds and rules as follows: In 1974, Judge George Boldt entered Finding No. 46, which provides in relevant part that Lummi’s usual and accustomed fishing places at treaty times “included the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle, and particularly Bell-ingham Bay.” United States v. Washington, 384 F.Supp. 312, 360-61 (W.D.Wash.1974), aff'd 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) Muckleshoot now moves for a clarification that Judge Boldt’s Finding No. 46 does not include any portion of Puget Sound Commercial Salmon Management and Catch Reporting Area 10 (“Area 10”). Area 10 is roughly bounded on the north by the Edmonds-Kingston ferry lane. Muckleshoot contends that the Lummi fishing places as adjudicated by Judge Boldt do not reach as far south as the northern boundary of Area 10. The key to resolving this controversy lies in determining what Judge Boldt meant in precise geographic terms by his use of the phrase “the present environs of Seattle.” The findings themselves do not define the phrase. However, this same phrase appears in paragraph 4 on page 26 of Dr. Barbara Lane’s “Anthropological Report on the Identity Treaty Status and Fisheries of the Lummi Indian Tribe” (1973) (Exhibit USA 30): The traditional fisheries of the post-treaty Lummi included reef net sites in the San Juan Islands, off Point Roberts, Birch Point, Cherry Point, and off Lum-mi Island and Fidalgo Island. Other fisheries in the Straits and bays from the Fraser River south to the present environs of Seattle were utilized. (emphasis supplied) Judge Boldt specifically cited pp. 23-26 of this report in support of Finding No. 46, 384 F.Supp. at 360, and the parties do not dispute that paragraph 4 of page 26 of Dr. Lane’s report is the source of the phrase in question. When asked by the parties to this sub-proceeding during her recent deposition on August 16, 1995 about her use of the phrase “present environs of Seattle,” Dr. Lane testified that she was referring to a location no farther south than present-day Mukilteo. She also testified that, in preparing the Lummi report cited by Judge Boldt, she found no evidence of any Lum-mi treaty-time fisheries extending farther south than the area around Fidalgo Island. Both Mukilteo and Fidalgo Island lie north of the northern boundary of Area 10. Lummi argues that the precise geographic meaning assigned by Dr. Lane to the phrase “present environs of Seattle” when she wrote her report was never communicated to Judge Boldt in any testimony or other evidence. Therefore, Lummi con*1195tends, it is not possible to conclude that Judge Boldt assigned the same geographic meaning to those words. Even assuming that Judge Boldt was never apprised of Dr. Lane’s specific meaning, the court does not consider this determinative of whether it can be concluded that Judge Boldt implicitly adopted her meaning by using her language. It is abundantly clear from Judge Boldt’s findings in United States v. Washington that he relied heavily on Dr. Lane’s research and reports. In the decision containing Finding No. 46 now at issue, Judge Boldt expressly acknowledged the debt he owed to and the reliance he placed on Dr. Lane’s written reports in reaching his own conclusions about the issues before him: The Court finds that in specific facts, the reports of Dr. Barbara Lane, Exhibits USA-20 to 80 and USA-53, have been exceptionally well researched and reported and are established by a preponderance of the evidence. 384 F.Supp. at 350. This court accordingly concludes that, by citing to and adopting Dr. Lane’s language about “the present environs of Seattle” without any amending explanation, Judge Boldt also meant to adopt her underlying meaning. In other words, when Judge Boldt referred in his findings to factual information or geographic descriptions contained in Dr. Lane’s reports, he also intended, unless otherwise indicated by specific language, to incorporate Dr. Lane’s definitions and reasoning into his own conclusions. Indeed, it would not make sense to find that Judge Boldt adopted Dr. Lane’s words but not her meaning without in any way informing the reader that he was deviating from her intended definition of the described geographic area.1 Lummi contends that Muckleshoot seeks to relitigate or reinterpret Judge Boldt’s finding in the guise of clarification by reading into it evidence which was not before him. As discussed above, this court disagrees, concluding instead that it was Judge Boldt’s specific intent to rely on Dr. Lane’s research and sources. Therefore, this court concludes that Judge Boldt intended to adopt Dr. Lane’s reasoning as well as her conclusions unless otherwise specifically stated. There is no indication that Judge Boldt intended to construe the geographic scope of “the present environs of Seattle” differently from Dr. Lane. In the alternative, even if Judge Boldt’s Finding. No. 46 cannot be clarified by adopting Dr. Lane’s definition of the “present environs of Seattle,” this court notes that Judge Boldt’s decision reserved continuing jurisdiction, among other things, to determine the location of a tribe’s usual and accustomed fishing grounds “not specifically determined by Final Decision No. 1,” as well as “such other matters as the Court may deem appropriate.” 384 F.Supp. 312, 419. If Dr. Lane’s definition is not adopted, then the meaning of the phrase in question here was “not specifically determined by Final Decision No. 1,” since Judge Boldt failed to define his use of the term in precise geographic terms. Therefore, pursuant to the reservation of jurisdiction cited above, this court has the authority to make a supplemental finding.2 *1196The sole, narrow issue before the court concerns the proper interpretation of “the present environs of Seattle” as used in Finding No. 46. The court concludes that the only authority capable of clarifying the meaning of that phrase is Dr. Lane, the person who wrote those words and from whose report Judge Boldt extracted that language for use in Finding No. 46. Based on Dr. Lane’s testimony in her deposition of August 16, 1995 in which she explained the meaning she intended to attach to those words when she wrote her report, the court makes a supplemental finding that the phrase “the present environs of Seattle” as used in Finding No. 46 describes an area which extends no farther south than Mukilteo. Thus, under Finding No. 46, the Lummi have no usual and accustomed fishing places in Area 10. Muckleshoot’s motion for partial summary judgment regarding the issue of whether Lummi has any usual and accustomed fishing places in Area 10 is accordingly GRANTED. ORDER RE: GRANTING PRELIMINARY INJUNCTION Subproceeding No. 96-1 (March 22, 1996) ON FEBRUARY 29, 1996, this court granted a motion by the Makah Indian Tribe, the Quinault Indian Nation and the Hoh Indian Tribe for a preliminary injunction. This order sets forth the court’s reasons for that decision. I. BACKGROUND The three petitioning tribes participate in the treaty Indian blackcod fishery harvested in the Pacific Ocean off the coast of Washington. From its inception in 1989 until the 1995 season, the blackcod fishery had been exclusively a longline fishery. On January 25, 1996, the petitioning tribes filed a request for determination regarding the management and allocation of the treaty Indian blackcod fishery. They alleged that the Quileute Indian Tribe, which also participates in the black-cod fishery, began using pot gear in 1995 to catch blackcod, thus permitting Quileute fishers to greatly augment their fishing power, and that the Quileutes were planning to increase markedly their pot gear capacity in the 1996 season.1 The petitioning tribes contended that, absent relief from this court in the form of a preliminary injunction, Quileute fishers would largely preempt the longline fisheries of the petitioning tribes or force them to use pots or other more efficient gear in order to compete with the Quileutes. In the absence of an intertribal allocation, the petitioning tribes argued that such an unrestricted fishery would injure all of the tribes by leading to overcapitalization of the fleet, concentration of the fishery in a small number of individuals, business failures and unemployment. They asked the court to preserve the status quo by protecting the longline blackcod fishery. In addition, the petitioning tribes alleged that the Quileute Tribe’s fisheries south of Destruction Island are outside of its usual and accustomed fishing grounds. They asked the court to enjoin the Qui-leute Tribe from fishing in that area. In its response, the Quileute Tribe agreed with the petitioning tribes’ underlying request for an equitable allocation of the treaty blackcod fishery among the four *1197coastal tribes.2 However, it asked the court to deny preliminary injunctive relief on the grounds that the Quileute Tribe’s use of pots will not preempt the petitioners’ fisheries or lead to economic decline. The Quileute Tribe also disputed petitioners’ allegations about the geographic boundaries of its usual and accustomed fishing areas. II. LEGAL ANALYSIS A. Standard for Preliminary injunction The four equitable criteria for determining the appropriateness of preliminary injunctive relief are well established: (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if the preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest. Confederated Tribes v. Baldrige, 898 F.Supp. 1477, 1483 (W.D.Wash.1995), citing Los Angeles Memorial Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). A preliminary injunction is warranted if the petitioners demonstrate probable success on the merits and a possibility of irreparable injury or a fair chance of success on the merits and the balance of hardships tipping sharply in their favor. Alaska v. Native Village of Venetie, 856 F.2d 1384, 1388 (9th Cir.1988). Having carefully reviewed the briefs and accompanying declarations and exhibits, and having heard oral argument, the court concludes that preliminary injunctive relief should be granted to maintain the status quo as it existed in the 1995 fishing season. B. Use of Pot Gear The evidence before the court indicates that vessels using pot gear can significantly increase their catch efficiency. Dec. of Dr. James Crutchfield, Exh. A at pp. 8-11; Dec. of Stephen H. Joner, pp. 9-10. Although the Quileute Tribe argues that the difference in catch efficiency between longline and pot gear has not been quantified for the blackcod fishery, it does not seriously dispute the improved catch rate for pot gear. Indeed, the hope of enhancing their ábility to compete in the blackcod fishery is precisely why the Qui-leute fishers wish to expand their use of pot gear. The evidence before the court further suggests that if the Quileute Tribe expands its use of pot gear in a wide-open treaty blackcod fishery, other tribal fishers will be forced to either refit their current vessels or buy larger pot-equipped vessels in order to remain competitive. Left uncontrolled, this situation would result in fewer vessels employing less personnel fishing shorter seasons. Dec. of Dr. Crutchfield, Exh. A at pp. 11-14. The Quileute Tribe tries to disavow the prospect of economic distress and decline offered by the petitioning tribes, but presents no evidence to refute it. The Quileute Tribe contends that the petitioners’ arguments about threatened preemption of their fisheries are without merit because Quinault’s percentage of the catch actually increased and Makah’s total catch doubled from 1994 to 1995. This misses the ultimate point of petitioner’s argument, which is that the Quileute Tribe’s unrestricted use of pot gear threatens to alter the nature of the fishery, which in turn bodes *1198ill for the overall health of the tribal economies. The court is convinced that the Quileute Tribe’s unrestricted use of pot gear threatens to significantly change the nature of the fishery by forcing other tribes to invest in pot gear. This would in turn lead to overcapitalization of the fishery, inability of smaller vessels which are incapable of switching to pot gear to compete in the fishery, lower employment, and inability of individual tribes to manage their share of the fishery to, meet their own tribal objectives and economic needs. In short, unrestricted use of pot gear could have a destructive, destablilizing effect on the already fragile economies of the participating tribes. Thus, the court finds that petitioners have established that irreparable injury will result if the use of pot gear in the treaty blackcod fishery remains unrestricted without any concurrent agreement or determination about an equitable intertri-bal allocation of that fishery. The court also finds that the balance of hardships tilts sharply in favor of the petitioning tribes’ argument that the use of pot gear should be restricted until the issue of apportioning the blackcod fishery is resolved. Maintaining the status quo from the 1995 season will permit Qui-leute fishers to use their pot gear to harvest roughly one-fourth of the overall quota,3 while ensuring that the nature of the blackcod fishery as a whole is not altered to the detriment of tribal economies. Moreover, there is no question that the petitioning tribes have raised serious questions on the merits about the need for an equitable allocation of the blackcod fishery so as to preserve each coastal tribe’s treaty fishing rights. C. Usual and Accustomed Fishing Areas Regarding the issue of whether the area south of Destruction Island is one of the Quileute Tribe’s usual and accustomed fishing places, the court concludes that petitioners have raised serious questions on the merits.4 However, the court finds that petitioners have not shown any likelihood of irreparable injury resulting from continued fishing efforts by the Quileute Tribe for fish other than blackcod in the contested area pending the resolution of the dispute. As for the Quileute Tribe’s blackcod fishery in that area, the court will enjoin Quileute fishers from using more than 100 pots, the status quo from the 1995 season, for the reasons outlined above. III. CONCLUSION The petitioning tribes’ motion for a preliminary injunction is GRANTED. For *1199the 1996 treaty blackeod fishery, the Qui-leute Tribe shall comply with the following restrictions: (1) the Quileute Tribe’s total blackeod catch shall not exceed 27% of the overall treaty blackeod quota, and (2) the number of pots used in the blackeod fishery south of Destruction Island shall not exceed 100. MINUTE ENTRY - IN CHAMBERS PROCEEDINGS: Subproceeding No. 96-1 (April 10, 1996) The court has reviewed the Quileute Tribe’s motion to alter or amend the judgment together with the petitioning tribes’ opposition, and DENIES the motion. The court finds that the Quileute Tribe has failed to establish manifest injustice or any other basis for reconsidering the court’s balancing of the equities in this case. ORDER GRANTING MOTIONS FOR APPROVAL OF SETTLEMENT AGREEMENTS AND DENYING REQUEST THAT DISMISSAL WITHOUT PREJUDICE BY CONDITIONAL ON PAYMENT OF DEFENSE COSTS AND ATTORNEY FEES Subproceeding No. 86-5 (July 9, 1996) THIS MATTER comes before the court on motions seeking an order approving three settlement plans reached among various groups of tribes, and on a request by four tribes that the dismissal of this case be conditional on payment of their defense costs and attorney fees by the Muckle-shoot and Nisqually Tribes. Having reviewed the motions together with all documents filed in support and in opposition, the court finds and rules as follows: The three agreements in question are as follows: 1. March 15,1996 Agreement The Nisqually, Muckleshoot, Puyallup, Squaxin Island, Suquamish and Tulalip Tribes present an Intertribal Salmon Allocation Plan for South Puget Sound dated March 15, 1996, which has been approved and executed by authorized representatives of the party tribes. 2. April 23,1996 Agreement The Muckleshoot, Nisqually and Makah Indian Tribes present a settlement reached among the three tribes dated April 23, 1996, which has been approved by resolution of all three tribal governing bodies and executed by the tribal chairs. 3. May 28,1996 Agreement Thirteen tribes have entered into and their tribal governments have ratified a Settlement Agreement Regarding 1996-1999 (2000) Management Agreement for Puget Sound and Ocean Fisheries dated May 28, 1996. This agreement supersedes two previously filed agreements dated August 10, 1995 and May 9, 1996. The thirteen tribes include the Squaxin Island, Pu-yallup, Makah, Jamestown S’Klallam, Lower Elwha S’Klallam, Port Gamble S’Klallam, Skokomish, Lummi, Suquamish, Nooksack, Stillaguamish, Swinomish and Upper Skagit Tribes. Having reviewed all of the memoranda submitted concerning the above-described agreements, and having determined that there is no objection to approving the agreements, the court hereby grants all three of the motions for approval. This approval is made with the understanding that each agreement only binds signatory parties to that agreement, and that, where a party signed more than one plan and those plans have inconsistent pro*1200visions, the party will be bound by the provision resulting in the most restrictive fishery. In response to a concern raised by the state of Washington, the court clarifies that the May 28, 1996 agreement is not intended to and does not modify prior agreements and court orders regarding tribal/state relations. Nor does the May 28, 1996 agreement alter any previous order, agreement or plan including any other party than the signatories to the May 28, 1996 agreement. The court further clarifies that the May 28, 1996 agreement does not preclude tribal fish managers from taking measures consistent with the Pacific Salmon Treaty and its implementing legislation. Finally, the court denies the request by the S’Klallam and Skokomish Tribes that dismissal of this subproceeding be made conditional on payment by the Muckleshoot and Nisqually Tribes of all or a portion of the S’Klallam and Skokomish Tribes’ attorney fees and costs incurred in defending this subproceeding since August of 1995. Having reviewed the memoranda filed on this subject, the court is not convinced that Muckleshoot and Nisqually should be held responsible for paying the requested fees and costs. Muckleshoot and Nisqually had legitimate concerns which prompted them not to agree to dismissal of the case in August of 1995. Since then, the tribes involved in this litigation have concluded three agreements which will bring much needed stability to the fisheries involved for at least the next five years. At least some of the fees and costs incurred by the S’Klallam and Sko-komish Tribes since August of 1995 were expended in a successful effort to conclude the May 28, 1996 agreement, which will benefit them. The court accordingly finds no basis for conditioning dismissal of this case on the requested award of fees and costs. The motions to approve the agreements of March 15, 1996; April 23, 1996 and May 28, 1996 are GRANTED. The request by the S’Klallam and Skokomish Tribes for an award of fees and costs is DENIED. SETTLEMENT AGREEMENT REGARDING 1996-1999 (2000) MANAGEMENT AGREEMENT FOR PUGET SOUND AND OCEAN FISHERIES Amending and Replacing August 10, 1995, Management Plan Subproceeding No. 86-5 (May 28, 1996) 1. AGREEMENT 1201 2. TERM 1203 3. EFFECTS OF ADJUDICATION OF U & A FISHING AREAS 1203 4. INTERTRIBAL SHARING OF CHINOOK SALMON 1204 4.1 Scope 1204 4.2 Chinook Management and Allocation Basis 1204 4.3 Context and Basis of Agreement 1204 4.4 Management Intent 1205 4.5 1996-1999 Limitations on Preterminal Treaty Fisheries 1205 4.6 Bellingham Bay Treaty Chinook Fisheries 1206 4.7 Future Chinook Allocation and Management Plans 1206 4.8 Management Information 1207 4.9 Review 1207 *12014.10 Post Season Audits of Chinook 1207 5. INTERTRIBAL SHARING OF SOCKEYE 1207 5.1 Scope 1207 5.2 Sockeye Tribes 1207 5.3 Non-Treaty Share 1208 5.4 Intertribal Allocation of Fraser River Sockeye 1208 5.5 Intertribal Allocation of Puget Sound Sockeye 1209 6. INTERTRIBAL SHARING OF COHO SALMON 1210 6.1 Scope 1210 6.2 Non-Treaty Harvest Allocation 1210 6.3 Coho Harvest Limitations Applicable to Treaty Preterminal Fisheries 1210 6.4 Terminal Shares — South Sound 1212 6.5 Paybacks 1214 6.6 Terminal Shares 1215 6.7 Non-Local Terminal Area Interceptions 1216 7.INTERTRIBAL SHARING OF CHUM SALMON 0^ 1“1 03 i — l 7.1 Scope Oj i — I 03 i — l 7.2 British Columbia Chum Salmon Ailocation ■ Oj t — I 03 i — i 7.3 Puget Sound Chum Salmon Allocation CO 03 03 i-H 7.4 Management for Intertribal Sharing 03 03 l — l 8. TECHNICAL WORK 1224 9. PROCEDURAL LIMITATIONS 1226 10. COVENANT NOT TO USE 1227 11. PRINCIPLES 1228 12. THIRD PARTY BENEFICIARIES 1228 13. EFFECTIVE DATE 1228 1228 14. AUTHORIZATION AND COUNTERPARTS MAY 28, 1996, SETTLEMENT AGREEMENT REGARDING 1996-1999 (2000) MANAGEMENT AGREEMENT FOR PUGET SOUND AND OCEAN FISHERIES 1. AGREEMENT. 1.1This agreement is entered this 28th day of May, 1996, by and between the Puyallup Indian Tribe, the Squaxin Island Tribe, the Makah Indian Tribe, the Lummi Indian Nation, the Upper Skagit Tribe, the Swinomish Indian Tribal Community, the Suquamish Indian Tribe, the Stillaguamish Indian Tribe, the Skokomish Indian Tribe, the Nooksack Indian Tribe, the Lower El-wha S’Klallam Tribe, the Jamestown S’Klallam Tribe, and the Port Gamble S’Klallam Tribe (hereafter the “Signatories”.). The Muckleshoot Indian Tribe, the Nisqually Indian Tribe, The Tulalip Tribes and the State of Washington are not parties to this Agreement. 1.2The Signatories desire to settle for a term of years the harvest allocation claims between them in Subproceeding 86-5 of United States v. Washington, Civil No. C71-9213, United States District Court for the Western District of Washington. These claims and this settlement agreement concern harvest allocation. Issues of conservation needs, primary rights *1202and the total amounts of harvest available for allocation are expressly excluded. The issue of usual and accustomed fishing areas is, except as expressly provided herein, also expressly excluded. 1.3 This Agreement modifies, replaces and supersedes the document entitled the 1996-1999 (2000) Management Plan For Puget Sound And Ocean Fisheries, dated August 10,1995 (the “August 10 Han”) and submitted to the Court for adoption as a Court Order on that same date. This Agreement represents a compromise of the Signatories positions regarding the equities of allocation of harvestable treaty salmon in the case of United States v. Washington. This Agreement is not intended to serve as a basis for establishing equitable allocation principles outside the context of this Agreement or for determining what might constitute an equitable allocation of harvestable treaty salmon among the Signatories after the Agreement expires. 1.4 The terms of this Agreement are binding upon the Signatories. The Signatories agree to advocate these terms before the Court in any trial in Subproceed-ing 86-5 or any other litigation in which the terms of this Agreement are at issue. The obligation of advocacy shall be satisfied by the Suquamish, Puyallup or the Squaxin Island Tribe, if, at the request of any Signatory, the Suquamish, Puyallup or the Squaxin Island Tribe shall file or cause to be filed a statement that it supports the terms of this Agreement and is bound by the terms of this Agreement. Any Signatory is free to take any position it chooses with regard to a petitioner that seeks relief greater in extent or longer in duration than is specified in this Agreement, provided that no Signatory shall disavow the terms of this Agreement. 1.5 This Agreement sets forth intertri-bal principles for sharing salmon and certain sharing regimes. These regimes shall be in force for the next four years and shall apply to the harvest of salmon taken in the Ocean, the Strait of Juan de Fuca, the San Juan Islands, and Puget Sound. Unless expressly provided herein, nothing in this Agreement shall affect or alter the provisions of any other intertribal agreement or prior orders of the court regarding treaty fisheries, including the 1996-1999 (2000) Management Plan for Puget Sound Fisheries Area 10 and (the “Area 10 And South Plan”) to which the Squaxin Island, Puyallup and Suquamish Tribes are signatories. Nothing in the Area 10 and South Plan shall affect or alter the provisions of this Agreement. 1.6 This Agreement does not serve as the comprehensive agreement referred to in certain previous court orders and agreements between Tulalip and other tribes. Nothing in this Agreement shall modify, amend, or supersede the “Stipulated Settlement Agreement of Swinomish Tribal Community and the Tulalip Tribes dated June 9, 1983 (Docket No. 9071), or the Court’s Order Approving Settlement Agreement Between Swinomish Tribal Community and Tulalip Tribes Re Puget Sound Fishing Area Claims dated July 8, 1983 (Docket No. 9190) that incorporated the Settlement Agreement by reference. 1.7 References to SSMAP refer to The Salmon and Steelhead Management and Allocation Plan (“SSMAP”), dated August 31,1989, which was submitted to the Court as an attachment to the Mediator’s Final Report on September 12,1989 (Docket No. 11381). All references herein to SSMAP are for convenience only and do not imply adoption of SSMAP, in whole or in part. 1.8 Certain provisions of this Agreement require consent of the “affected parties” before the Signatories may take action mentioned in such provisions. As used in such provisions, the term “affected *1203parties” means all tribal parties who, after notice, indicate that such action would affect their interests. For actions that this Agreement contemplates the Signatories will take during preseason planning, the Signatories agree that notice to all affected parties’ fisheries directors shall be notice to all affected parties. 1.9 The Signatories agree that they will make good faith efforts to commit the necessary effort and resources to fulfill the requirements of this Agreement. 1.10 This Agreement when approved by the Court shall be entered as an enforceable Order of the Court Prior to July 1 of 1996 and prior to June 1 of each year thereafter, any Signatory may file with the Court an annual management plan for the Puget Sound and ocean fisheries developed pursuant to this Agreement and, in the event that such plan is contested, any Signatory may request the Court to adopt the annual plan as a Court Order. 2. TERM 2.1 The term of this Agreement shall be a four year period beginning at the end of the 1995/1996 winter troll fishing season and continuing through the end of the 1999/2000 winter troll fishing season. If on or before April 1, 1999, the Signatories have not agreed to an allocation agreement addressing treaty fisheries for the 2000/2001 fishing season, then the term of this Agreement shall be extended for one additional year through the end of the 2000-2001 winter troll fishing season. 2.2 The term of the Agreement recognizes the fact that, at present, there is insufficient agreed-upon information on stock composition in the various fisheries to permit adequate accounting of impacts and allow for the formation of a consensus on long term management and allocation plans. The intent of this Agreement is to create the stability in fisheries and inter-tribal relations for the affected parties to undertake the technical and policy work tasks that are needed in order to achieve a longer term intertribal sharing regime as outlined in Section 8 of this Agreement. 3. EFFECTS OF ADJUDICATION OF U&AFISHING AREAS. 3.1 During the term of this Agreement, the conduct of fisheries by the Swinomish and/or Lummi tribes in Areas 9 and 10, shall be governed by the following provisions. 3.1.1 .Conduct of Fisheries in Area 10. a. Lummi. The Lummi Nation will not authorize or conduct fisheries in Washington Department - of Fish and Wildlife Commercial Salmon Catch Management and Reporting Area 10 (“Area 10”) during the term of this Agreement. The Lummi Nation will not authorize or conduct fisheries in Area 10 after the term of this Agreement unless it first secures a judicial determination that it has treaty fishing rights in Area 10. b. Swinomish. As a result of the Court’s July 5, 1995 Order, the question of Swinomish usual and accustomed fishing places in Area 10 may remain to be determined. The Signatories to this Agreement agree not to oppose a request for determination by the Swinomish Tribe regarding its usual and accustomed fishing places in Area 10 during the term of this Agreement. 3.1.2 Conduct of Fisheries in Area 9. a. If the Lummi Tribe shall prevail in Subproceeding 89-2 then the Lummi Tribe agrees not to exercise any fishing rights which may be confirmed in Subproceeding 89-2 during the term of this Agreement. *1204b. The Swinomish Tribe may participate in Area 9 test and evaluation fisheries for any species of salmon, conducted consistent with provisions of this Agreement. Nothing in this Agreement shall preclude any tribe from participating in any Subproceeding concerning the adjudication of Swinomish usual and accustomed fishing places in Area 9; provided however that all Signatories agree not “to initiate” any legal challenge to Swinomish usual and accustomed fishing places in Area 9 during the term of this Agreement. Specifically, for research/test fisheries directed at chum salmon under provisions of Section 7.4.8 of this Agreement, the Swinomish Tribe shall participate and cooperate in the planning, acquisition of necessary funds, test harvest, and analysis of the results. Swinomish participation in test fisheries shall be under provisions of Section 7.4.8 and accounting of test catches shall be governed by existing provisions of the Puget Sound Salmon Management Plan (PSSMP). In fisheries, conducted under provisions of Section 7.4.8 that do not meet the test fishery criteria of PSSMP, i.e. evaluation fisheries, the Swinomish Tribe agrees to comply with the following conditions: i) Conduct its fishery in areas that are within the Swinomish usual and accustomed fishing places. ii) Comply with the annual experimental design called for by Section 7.4.8 of this Agreement. iii) Demonstrate that its fishery will not exceed its allowable harvest, by providing appropriate limitations, such as closing the area west of the Foulweather — Liplip line, and implementing limits on the number and types of boats and gear, iv)Limit catches to the levels established by the test/evaluation design. 4. INTERTRIBAL SHARING OF CHI-NOOK SALMON. 4.1 Scope. This section applies to the harvest of chinook salmon stocks that originate and are taken in Puget Sound, the Strait of Juan de Fuca, the San Juan Islands and the Point Roberts Area. Although this section prescribes no specific management measures for ocean fisheries, the harvest of Puget Sound chinook stocks taken in the ocean (including Area 4B during the ocean management period) are taken into account. 4.2 Chinook Management and Allocation Basis. 4.2.1 Escapement Policy. This chapter prescribes no changes in escapement policies established in the Puget Sound Salmon Management Plan regarding chinook. 4.2.2 Treaty/Non-treaty Allocation. This chapter prescribes no changes in Court-determined provisions governing Treaty/Non-treaty allocations (i.e., 50/50 sharing between Treaty and Non-treaty); nor does it change the existing management and allocation basis of the various races of chinook (e.g., spring chinook, summer/fall chi-nook). 4.3 Context and Basis of Agreement. At the time this section was developed, relatively few Treaty fisheries targeting on Puget Sound chinook existed in Puget Sound. The non-treaty recreational fishery, the Strait of Juan de Fuca and San Juans treaty troll fisheries, and, to a lesser extent, the Strait of Juan de Fuca Treaty set net fishery all target on mixed Puget *1205Sound chinook stocks. The limited scope of commercial fisheries for chinook salmon largely is a consequence of the depressed condition of many Puget Sound chinook stocks and the paucity of information on stock-specific fishery impacts. 4.4 Management Intent. The intent of this section is to support Puget Sound chinook salmon rebuilding efforts now underway pursuant to the Pacific Salmon Treaty and state and tribal management and enhancement programs. To this end, the Signatories agree to: 4.4.1 freeze at existing levels Treaty chinook fisheries in preterminal and mixed terminal areas. Fisheries shall be limited only to those authorized during the 1989-95 period, until the Signatories agree that: a. currently-depressed Puget Sound chinook stocks can support greater harvests; b. additional technical information and capabilities are available to improve management options (e.g., shaping of fisheries); and, c. in the absence of closures required for conservation, a Treaty chinook troll fishery in the San Juan Islands may be opened under the same regulations used diming the years 1989-1995. 4.4.2 seek complementary management actions in non-treaty fisheries to ensure that all affected parties and the State of Washington are contributing equally to rebuilding efforts. 4.5 1996-1999 Limitations on Pretermi-nal Treaty Fisheries. The fishery limitations prescribed in this Section 4 are the result of the low runs anticipated and are in no way intended to define the potential extent of Treaty chinook fisheries. At the end of the term of this Agreement, these limitations shall be re-evaluated to determine the extent to which the limitations should be relaxed, expanded, otherwise modified, or terminated. During the term, taking into account the depressed condition of Puget Sound chinook stocks and the need for harvest constraints, the tribes agree: 4.5.1 to permit no new treaty fisheries targeting on Puget Sound chinook salmon in any preterminal or mixed terminal areas of Puget Sound, unless otherwise agreed; 4.5.2 to permit no expansion of Treaty fisheries authorized during 1989-95 targeting on chinook salmon in any preterminal or mixed terminal areas of Puget Sound, unless otherwise agreed; 4.5.3 to continue to limit incidental chi-nook harvests by appropriate time, gear, and area restrictions for all fisheries that impact weak chinook stocks; 4.5.4 a. to limit the total annual harvest by winter treaty troll in Areas 4B, 5 and 6C and summer treaty troll in Areas 5 and 6C so as not to exceed the 1986-1990 average exploitation rate on contributing Puget Sound stocks applied to the current year estimated abundance of those stocks. b. The current year abundance and average exploitation rates shall be determined by using the methodology applied under the 1994 and 1995 annual treaty fishing plans. c. The Signatories agree that the methodology for determining the current year abundance and average exploitation rate may be changed during the term of this Agreement, but only with the consent of all the affected parties to this Agreement. • *1206d. Ceilings will be calculated for each of four time periods (January-April, May-June, July-October, and November-December). Any overage or underage from the November-December time period shall be applied to the ceiling calculated for the subsequent January-April time period. These ceilings do not apply to net fisheries in the Strait of Juan de Fuca that target on local stocks (Hoko Bay, Pysht Bay, Freshwater Bay, Dungeness Bay, Crescent Bay, Clallam Bay), provided that estimates of the impacts of these fisheries on non-local stocks are deemed acceptable by affected tribes; 4.5.5 that the tribes that participate in the Strait of Juan de Fuca chinook winter troll fishery will develop and implement an annual fishing plan for the Strait of Juan de Fuca chinook fishery in consultation with other affected tribes. The plan for each season shall be completed by November 1 of that season, and should include management actions designed to implement the ceilings described above. Those actions may include subdividing the season into time periods with associated limits, size limit restrictions, allocation of chinook between the tribes that fish in the SJF, and/or other appropriate measures to achieve the specified harvests. After November 1 there will be no Strait of Juan de Fuca troll fishery until the tribes that participate in the fishery have agreed to such a plan; 4.5.6 to use only barbless hooks in the SJF troll fishery; 4.5.7 to close the Treaty troll fishery in Areas 4B, 5, 6, and 6C during the spring chinook migration period (approximately April 15-June 15 in Areas 5, 6, and 6C and April 15-80 in Area 4B) subject to complementary actions taken by the State of Washington which result in protection for the stocks of concern equivalent to that provided in their recreational and commercial 1990 regulations package, and by terminal area tribes in their respective fisheries, to limit impacts and enhance these stocks; 4.5.8that if the exploitation rate on Puget Sound chinook in Treaty ocean troll fisheries deviates by more than 10% from the 1986 through 1990 average exploitation rate scalars on contributing Puget Sound stocks applied to the current year predicted abundance of those stocks, the affected tribes will calculate, for policy action, adjustments to the Strait of Juan de Fuca ceiling that account for the amount of change in impact on Puget Sound chinook that occurs in the Treaty ocean troll fishery. 4.6 Bellingham Bay Treaty Chinook Fisheries. Unless otherwise agreed, in order to improve the opportunity of gillnet fishermen, tribes with fishing rights in Areas 7B or 7C shall not authorize the use of purse seines for more than two days per week, in Areas 7B and 7C. These tribes agree to rescind this provision when they agree it would preclude full harvest that year of the Treaty share of Bellingham Bay chinook. The Nooksack Tribe may open Areas 7B and 7C to gillnet fishing sixteen hours before any other Tribal opening. These tribes will exchange fishing plans prior to opening their fisheries in these areas, and will coordinate their fishery openings. 4.7 Future Chinook Allocation and Management Plans. Recognizing that additional harvests of chinook in all areas are *1207expected to be possible as chinook rebuilding programs succeed, and prior to the resumption, and/or expansion of mixed stock fisheries targeting on Puget Sound chinook, the Signatories agree to make good faith efforts to develop, and implement, prior to the 2000 fishing season, a more comprehensive chinook management and allocation plan. Among other things, the plan shall include: 4.7.1 schedules for rebuilding depressed stocks; 4.7.2 model using Puget Sound chinook cohort reconstruction information, developed cooperatively by the Signatories as soon as possible, but no later than 1999, in order to assess the exploitation rates and to the extent necessary, evaluate required adjustments in them; 4.7.3 consideration of the need, if any, to change the specific fishery limitations described in this section for conservation purposes, and the effectiveness of those limitations in contributing to the rebuilding of chinook stocks; and, 4.7.4 an outline of how harvests of those stocks will be shared. 4.8Management Information. The Signatories recognize that their ability to improve the condition of chinook stocks and fisheries is hindered by the paucity of existing technical information. Accordingly, in order to develop the longer-term plan referenced in Section 4.7 above, they agree during the next four years to pursue all reasonable efforts to improve their knowledge of the chinook resource, the impacts of fisheries on individual chinook stocks, and their chinook management capabilities. Towards this end, the tribes shall be responsible for overseeing and monitoring existing research and fishery monitoring programs, identifying new programs needed, developing new management tools, and recommending research priorities to policy groups. 4.9 Review. As soon as the chinook model is developed and implemented for Puget Sound, but no later than the year 2000, the tribes shall evaluate this Agreement and determine whether the provisions of this Agreement, including the appropriate target exploitation rates for the Strait of Juan de Fuca troll and net and Ocean troll fisheries, should be rescinded, continued, expanded, or otherwise modified. 4.10 Post Season Audits of Chinook. The Signatories agree that post-season chinook audits should be accorded a high priority among the technical and management projects assigned by the tribes to NWIFC referenced in Section 4.7. These audits can be conducted by the NWIFC and the tribes’ Technical Review Committee provided that funding for such audits is available. The audits will use discounts for marine natural mortality. Absent further agreement of the affected tribes, the results of the post-season audits will not be used to alter the chinook ceilings provided for this Agreement. 5. INTERTRIBAL SHARING OF SOCKEYE 5.1 Scope. This section prescribes allocation of the treaty share of Fraser River sockeye and Puget Sound sockeye. 5.2 Sockeye Tribes. The sockeye tribes are the Makah Tribe, the Lummi Indian Nation, The Tulalip Tribes, the Swinomish Indian Tribal Community, the Suquamish Indian Tribe, the Nooksack Indian Tribe, the Lower Elwha S’Klallam Tribe, the Jamestown S’Klallam Tribe, and the Port Gamble S’Klallam Tribe (hereafter the “Sockeye Tribes” although The Tulalip Tribes are not a party to this Agreement). *12085.3 Non-Treaty Share. Unless otherwise agreed among the affected parties, the non-treaty share of Fraser River and Puget Sound sockeye shall be as provided in the Puget Sound Salmon Management Plan (PSSMP) and in any other applicable Agreements among the affected parties and the State of Washington. 5.4 Intertribal Allocation of Fraser River Sockeye. 5.4.1Annual management plan for Fraser River sockeye. Each year, before fishing begins, the Sockeye Tribes will agree to an annual management plan for Fraser River sockeye. Each year’s annual management plan will include the apportionment of a multi-year treaty share (if any) and an annual percent sharing formula for the Strait and Inside fisheries. This formula will be used to determine a target catch for the Strait fishery (see 5.4.2.a below). 5.4.2 Definition of “Strait” and “Inside” shares. a. The Treaty share of Fraser River sockeye shall be divided into a “S trait” share and an “Inside” share. The Strait share is the harvest by tribes in catch areas 4B, 5, and 6C, and the Inside share is the harvest by tribes in catch areas 6, 6A, 6B, 7, 7A, 7B, 7C, 7D, and 7E. The following definitions are as specific as possible given the current uncertain situation with the international allocation for Fraser River sockeye. When annual shares for the treaty tribes are agreed to the Sockeye Tribes will make the annual Strait and Inside shares more specific. b. Strait share defined: For the 1996-1999 years (and the 2000 interim year, if necessary) the following average exploitation rates for the Strait fishery, by cycle year, will be used: Strait Fishery Year Exploit. Rate Run Size 24,200 1996 1.55% 1.56 mill 107,000 1997 0.50% 21.3" N/A. 1998 0.80% N/A N/A 1999 0.75% N/A N/A 2000 1.55% N/A The average exploitation rates listed above will be used to compute the minimum Strait fishery target during each season. The actual minimum harvest number will be calculated based on the preseason estimate of the run size times the appropriate average exploitation rate and shall be recalculated each time an in-season update changes the estimate of the Fraser River run size. The actual target percent share for each year can represent a harvest number greater than the minimum, so long as measures are taken to avoid exceeding a rolling four-year Strait share of 12.0% of the total treaty Indian four-year share or 20% of any one year’s share. 5.4.3 If a four-year treaty Indian share is established, whose total volume is inadequate to meet the minimum annual Strait fishery targets, without exceeding 12% of the total treaty Indian four-year share, the annual mínimums shall be adjusted proportionately in order to avoid exceeding the 12% four-year sharing. a. Inside share defined. Each year the Inside share will be that portion *1209of the Treaty share not projected for harvest in the Strait pursuant to the Sockeye Tribes’ annual management plan. b. Management of the Strait fishery. The preseason fishing plan shall include a schedule for the Strait fishery designed to harvest the target percentage Strait share over the entirety of the sockeye season. The Strait fishery shall be managed in-season, and adjusted if necessary, to achieve as closely as possible the annual target set in the preseason management plan. In the event the annual percentage target is inadvertently reached, or projected to be reached, before the end of the season, any opening in the Strait must be no more extensive than the Inside fishery for the remainder of the Fraser management period. c. Annual targets are not ceilings or entitlement. The annual percentage targets for the Strait share are not absolute ceilings or entitlements. Should the Strait fishery fail to reach an annual harvest target, or a minimum target based on the exploitation rate, despite a fishery unaffected by the Inside fishery, the uncaught portion of the annual harvest target shall not be transferred to subsequent years’ targets. If, on the other hand, the Strait fishery exceeds an annual harvest target due solely to management imprecision, then subsequent years’ targets shall not be reduced, subject to the overall four year target, shown in section 5.4.3 a above. d. Adjustments due Strait fishery. If fishing time for the Strait fishery is reduced due to excessive catches in the Inside fishery, and the annual Strait harvest target is not achieved, the catch the Strait fishery would have taken had it not been curtailed will be estimated. This estimated catch, which shall be computed based on the catch to date and the level of daily catch and effort occurring near the closed time period, and the expected abundance and availability of Fraser River sockeye, shall be added to future years’ harvest targets. 5.4.4 Uniform fishing regulations. Unless otherwise agreed, there shall be no separate fishing times or quotas for any of the tribes fishing in Areas 6, 7, and 7A. All tribes shall fish during the same time periods in these areas, using the same regulations pertaining to all legal gear (e.g. net length). 5.5 Intertribal Allocation of Puget Sound Sockeye. 5.5.1 Preterminal Convention Waters’ treaty fisheries. Unless otherwise agreed, the treaty sockeye fisheries in the Strait (areas 4B, 5, and 6C) and northern inside preterminal areas (areas 6, 7, and 7A) shall be managed primarily on the basis of objectives for Fraser River stocks. However, the needs of Puget Sound sockeye stocks shall also be taken into account as follows: Recognizing that the abundance of Lake Washington sockeye will be low for the foreseeable future, sockeye fisheries will not occur in áreas 4B, 5, 6, or 6C before mid July unless the count of Lake Washington sockeye at the Hiram Chittenden Locks indicates that a harvestable surplus is available, or unless a fishery is necessary for the full harvest, by the Sockeye Tribes fishing in these areas, of their treaty share of Fraser River sockeye. If *1210either situation should arise, the Sockeye Tribes shall confer and agree on an appropriate course of action. 5.5.2Sockeye fisheries in other parts of Puget Sound. It is expected that, for the foreseeable future, incidental harvests of Puget Sound sockeye in fisheries directed at Fraser River sockeye and in fisheries directed at other species, in terminal areas, will consume the entire harvestable amount of sockeye from these runs. a. Areas 6B and 9: If there are har-vestable Lake Washington sockeye, in excess of incidental fishery requirements, identified from this run in any year, then a harvest management plan, which includes sharing of the treaty harvest among tribes fishing in Areas 6B and 9 shall be worked out and agreed to by the tribes that fish in Areas 6B and 9 before any directed fishing commences. b. Area 10 and Lake Washington System: If there are harvestable Lake Washington sockeye, in excess of incidental fishery requirements, identified from this run in any year; then a harvest management plan, which includes sharing of the treaty harvest among tribes fishing in Area 10 or the Lake Washington System, shall be worked out and agreed to by the tribes that fish in Area 10 or the Lake Washington System before any directed fishery commences. Whenever up to 50,000 treaty har-vestable Lake Washington sockeye are available, and the tribes that fish in Areas 6B and 9 or the Tribes that fish in Area 10 or the Lake Washington System fail to reach agreement, any remaining Treaty harvestable Lake Washington sockeye, after preterminal incidental interceptions, shall be shared 75%/25% between Muckleshoot and Suquamish respectively, c.Skagit Bay and Skagit System (Baker Lake/River): Whenever there are treaty harvestable sockeye salmon from the Baker system, any remaining treaty harvestable sockeye, remaining after pretermi-nal incidental interceptions, shall be reserved for terminal area directed fisheries. 6. INTERTRIBAL SHARING OF COHO SALMON 6.1 Scope. This section prescribes allocation of the treaty share of coho, and shall be re-evaluated after the term, at which time the Signatories will determine whether to extend it, modify it, or replace it with an alternative agreement. 6.2 Non-Treaty Harvest Allocation. Unless otherwise agreed among the affected parties, the non-treaty share of .coho shall be as provided in applicable orders of the federal courts and the settlement of Subproceeding 83-5. 6.3 Coho Harvest Limitations Applicable to Treaty Preterminal Fisheries. Unless otherwise agreed by all Signatories, given that the coho stocks’ status for the next four years is expected to be very low, the low preterminal levels described below shall apply. 6.3.1 Ocean Treaty Troll. a. Section 5A8.b and the Note in Appendix B of SSMAP defines ocean troll ceilings of 70,000;- 90,000; and 125,000 which shall apply in Level 1, 2, and 3 years respectively. However, since the key natural stocks’ status for the next four years is expected to be very low, it is anticipated that the 70,000 ceiling will *1211apply during the term of this Agreement, except lower amounts may apply as provided in 6.3.1 b or c below. b. When the treaty ocean troll ceiling amount results in terminal area run sizes which are insufficient to meet the escapement requirements which are jointly established with the State of Washington and to provide terminal area treaty fisheries of at least the level shown in SSMAP, the Treaty Indian ocean troll ceiling will be reduced to the extent necessary to provide one-half (in percentage) of the impact reduction compared to that required of Treaty terminal area fisheries from the terminal area SSMAP harvest levels shown in Table B-2, including the note in Appendix B. c. If the above actions, plus those taken in terminal mixed stock fisheries (see Section 6.7) and in other preterminal fisheries under this Agreement, are insufficient to meet Treaty/Non-treaty allocation targets and allow for terminal incidental catches and agreed update/test fisheries, then the Signatories will negotiate further reductions in all applicable treaty fisheries. Provided, however, that the Treaty troll ceiling for coho salmon shall be adjusted to allow the incidental harvest of coho by agreement, so as to ensure an ocean chinook harvest. d. The Treaty ocean troll fishery shall be closed no later than September 15 of each year; e. The Signatories agree to endorse the above provisions, and the ceilings derived from them, in testimony to the PFMC either directly or through the PFMC Tribal representatives, as unified tribal positions, for the duration of this Agreement. 6.3.2 Strait of Juan de Fuca. a. No directed coho commercial net fishery for the duration of this Agreement. b. Frontload sockeye/pink fishery as set forth in this Agreement. c. Pink years: Sockeye/pink fisheries must close by September 7. d. Non-Pink years: Sockeye fisheries must close by September 1. e. If Puget Sound coho abundance is similar to or lower than that predicted for 1994, the troll fishery will be closed from July 1 through October 31. f. Chum fisheries may start on or after October 15. This puts the entire coho/chum overlap into the coho management period. g. Prior to each season, the anticipated incidental catch of coho salmon will be estimated using average historical rates of capture. However, if it becomes apparent that incidental catches may greatly exceed these preseason estimates, the tribes will take additional measures, including area/time shaping, consistent with the primary intent of maintaining the tribes’ opportunity to participate in the harvest of other species. 6.3.3 Areas 6, 7, 7A. a. No directed coho commercial (i.e. all fisheries except test fisheries for stock status data collection) net fishery for the duration of this Agreement. b. Front load sockeye/pink fishery. c. Pink years: Area 6 sockeye/pink fisheries must close by September 7; Area 7 sockeye/pink must close by September 15; Area 7A sock*1212eye/pink open until sockeye/pink share is caught. d. Non-Pink years: Areas 6 and 7 sockeye fisheries must close by September 7; Area 7A sockeye fisheries open until sockeye share is caught. e. Chum fisheries regimes in Areas 6, 7, 7A shall be determined in preseason planning each year. f. Prior to each season, the anticipated incidental catch of coho salmon will be estimated using average historical rates of capture. However, if it becomes apparent that incidental catches may greatly exceed these preseason estimates, the tribes will take additional measures, including area/time shaping, consistent with the primary intent of maintaining the tribes’ opportunity to participate in the harvest of other species. 6.3.4 Area 9. No directed coho commercial net fishery. 6.4 Terminal Shares — South Sound. 6.4.1For reasons based originally on inadequate stock-specific information, and convenience, all fish harvested in Area 10, and areas south of the Area 9/10 line, have been accounted for as South Puget Sound-origin coho, and South Puget Sound-origin coho caught in other terminal areas have been excluded from the South Puget Sound shares. It is, however, recognized that key natural stocks that originate from regions outside South Puget Sound (“non-local” stocks) are present in Areas 10 and 11. For the sole purpose of determining shares as provided in this Section, the Signatories to this Agreement will continue to utilize this accounting method, in all years governed by this Agreement, unless Treaty/Non-treaty allocation accounting changes the way any of the stocks present in Area 10 or 11 fisheries are allocated. In such a case, the breakpoints and percentage shares listed in sections 6.4.3, 6.4.4 and 6.4.6 below will be adjusted to keep coho catches in all areas at approximately the same number of coho as if the current run reconstruction and allocation rules were used. In any event, it is the intent of the Signatories to use the period of this Agreement to estimate the stock-by-stock impacts in each fishery and calculate new algorithms and percentage shares of coho in Area 10 and other areas that would be used if intertribal sharing were based on the harvestable share of all coho that originate from South Puget Sound. For the purposes of this Agreement, the treaty allocation of South Sound coho stocks shall not include any equitable adjustments to account for past imbalances in the treaty/non-treaty allocations. 6.4.2 For the purpose of implementing this Agreement, the Area 10 and 11 shares identified in this Section 6.4 shall be determined and managed in-season according to the best available information. The intertribal allocation accounting shall be based on the post-season audit of stock abundance, treaty catch, escapement, treaty and non-treaty as well as intertribal allocation shares, and determination of paybacks due to intertribal allocation imbalances. Non-landed mortalities (such as “net dropout”) shall be allocated to the fishery in which they occur. 6.4.3 The basis for harvest sharing of coho in Area 10 shall be the 1983 Stipulation of Muckleshoot Suquamish and Tulalip Tribes, RE Tulalip Usual and Accustomed Fishing Places, No. *12139213 — Phase I, (MST Agreement) as amended herein, but only if and so long as the MST Agreement is applied to and treats the other Signatories harvesting coho in Area 10 in the same manner as the MST Tribes. The parties to the MST Agreement shall not make any modifications to the MST Agreement that affect the harvest shares of other Signatories to this Agreement. The harvest pool, as defined therein, shall be modified according to provisions of Sections 6.4.4a and 6.4.4b of this Agreement. The common pool, shall be calculated as the harvest pool minus all equity harvest, and the total treaty harvest in Area 10 shall not exceed more than 20% of the common pool times the number of tribes with established fishing rights in Area 10, plus any equity harvest due. For purposes of this Agreement, the term “tribal group” as used in the MST Agreement shall refer to one or more of the following: Suquamish/Muckleshoot — Central Sound Region Group; Tulalip/Stilla-guamish — Stillaguamish/Snohomish Region Group; Swinomish/Upper Skagit/Sauk Suiattle — Skagit Region Group. The “equity harvest” due to any tribal group shall be reduced from that provided for in the MST Agreement by a proportion equal to the number of Tribes per tribal group eligible for equity harvest in Area 10 divided by the total number of Tribes eligible to participate in the Area 10 common pool harvest. For example, if Suquamish/Muckleshoot are due equity from the Area 10 harvest pool based on the original MST Agreement, that equity would be reduced by 2/3 (Suquamish/Muckleshoot due equity divided by Suquamish/Muckle-shoot/Tulalip as participants in the common pool harvest — if Tulalip is due equity, its equity would be reduced by 1/3). 6.4.4 The Treaty coho harvest objective for Area 10 shall be calculated as follows: a. When the treaty allocation of South Sound coho is less than 100,-000 fish, no Treaty directed coho fishery shall be conducted in Area 10. Incidental coho catches during Area 10 chum salmon fisheries will be projected in-season. If this projected catch is exceeded, an amount equal to the excess will be subtracted from the common pool share of the Tribe or Tribal group responsible for the excess, in the next future year in which a directed Treaty coho harvest takes place in Area 10. There will be no payback to Area 10 fishing Tribes if the incidental catch during chum fisheries is less than the projected amount. b. When the treaty allocation of South Sound coho exceeds 100,000 fish, the Area 10 treaty share shall not exceed the lesser of (1) an amount which permits at least 100,-000 treaty coho, less preterminal treaty interceptions, to pass through Area 10, or (2) that permitted under the MST Agreement, as previously amended in Paragraph 6.4.3. Specifically, the harvest pool will be calculated as follows: i) at treaty share levels of South Sound coho between 100,000 and 230,000 fish, the harvest pool is 30% of the treaty share, minus the treaty preterminal interceptions of South Sound coho; ii) at treaty share levels of South Sound coho between 230,000 and 350,000 fish, the harvest pool is 69,-000 fish, plus 57% of the amount above 230,000, less the treaty pret-*1214erminal interceptions of South Sound coho; iii) at treaty share levels of South Sound coho above 350,000 fish, the harvest pool is 137,400, plus 30% of the amount above 350,000, less the treaty preterminal interceptions of South Sound coho. The Area 10 share of each tribe or tribal group will include any incidental coho interceptions of South Sound origin taken by that tribe in fisheries targeting on other species in Area 10 or Area 9, except that, in the event that no Area 10 share is provided for under this Paragraph, incidental coho interceptions, will still be allowed as provided in Section 6.4.4(a) above. A table illustrating the total projected Area 10 coho harvest under various South Sound Treaty shares, based on the modified MST Agreement, is appended to this Agreement. 6.4.5 The remainder of the treaty share of South Sound origin coho, after subtraction of preterminal interceptions and the Area 10 harvest, shall be allocated to the Puyallup, Nisqually, and Squaxin Island Tribes, and to the Suquamish and Muckle-shoot Tribes in their respective extreme terminal areas. It is anticipated that the aggregate extreme terminal share of South Sound coho would range from 62% to 85% of the total South Sound Treaty allocation, depending on the size of that allocation. 6.4.6 Deep South Sound (Areas 11-13K) produces 74% of all South Sound coho (Areas 10-13K). This 74% shall be multiplied by the total South Sound treaty share to arrive at the deep South Sound origin portion of the treaty share. The Puyallup Tribe’s harvest shares of deep South Sound-origin coho in Area 11 will be as follows: a. When the treaty share of deep South Sound Coho is less than 59,-000: No directed coho fishery shall be conducted in Area 11 by the Puyallup Tribe. Incidental coho catches during Area 11 chum fisheries will be projected in-season; if this projected catch is exceeded, this excess will be subtracted from subsequent Area 11 coho fisheries. There will be no payback to the Puyallup Tribe if the incidental catch during chum is less than projected. b. When the treaty share of deep South Sound Coho is 59,000 through 180,000: 5.0% of the portion of the treaty allocation between 59,000 and 180,000. If this amount is less than that projected for incidental catches during chum fisheries, then, for purposes of calculating paybacks by the Puyallup Tribe, the share will be the projected incidental catch during chum fisheries; plus c. When the treaty share of deep South Sound Coho is from 180,000 to 350,000: 6.0% of the portion of the treaty allocation between 180,-000 and 350,000; plus d. When the treaty share of deep South Sound Coho is above 350,000: 3.6% of the portion of the treaty allocation above 350,000. 6.5 Paybacks. 6.5.1 The shares and levels identified in Section 6, above, for Area 10, shall be adjusted to reflect overages and underages in previous years, based on post-season estimates of catches and shares. When the total Area 10 harvest exceeds its post-season share, a payback shall be owed to the extreme *1215terminal area in the amount of that excess. When the Area 10 harvest is less than its post-season share, a payback shall be owed to Area 10 by the extreme terminal areas in an amount equal to: (i) the difference between that harvest and the post-season share, when that harvest exceeded the in-season share; or (ii) the difference between the in-season share and the post-season share, when that harvest was less than the in-season share. No adjustments shall be made when the Area 10 harvest of a tribe or tribal group deviated less than 10% from its post-season share, except as provided in Section 6.5.3 below. Overages by one tribal group shall not affect any other tribal groups share in Area 10 in the year of occurrence. Such overages will reduce the extreme terminal fishery of the South Sound Tribes in the year of occurrence, with adjustments made to the extreme terminal shares from the Area 10 share of the tribal group(s) creating the overage in the next year in which a directed Area 10 harvest is allowed and each following such year until paid in full. No payback will be owed to Area 10 by the South Sound Tribes (Puyallup, Nisqually and Squaxin Island) if the total post-season coho return to the Nisqually River, excluding returns to the hatchery, during the year of the Area 10 underage was less than 14,000 fish. When payback is owed to' the Area 10 fishery by the South Sound Tribes, it will be added to the combined harvest shares of Area 10. 6.5.2 When the projected or actual remaining harvest of the Area 10 fishing tribes is less than 10,000 coho, in the interest of conservative management, the uncaught harvest may be carried over until the next year that the Area 10 harvestable share exceeds 20,000. When a payback is owed by the South Sound Tribes, it shall be repaid in the first succeeding year in which the in-season estimate of the Treaty share of South Sound origin coho exceeds 300,-000 coho, and in each following such year, in an amount no greater than 15% of that year’s treaty share of the party owing the adjustment, until paid, provided that the affected tribes may agree to a more rapid repayment schedule. 6.5.3 At the end of the term of this Agreement, any accumulated and outstanding deviations shall be repaid by those parties responsible for the deviation. The deviations will be repaid in the first year following the term of this Agreement in which directed coho fisheries are allowed and each succeeding such year until paid. 6.6 Terminal Shares. 6.6.1 It is a goal of this Agreement to allocate at least the following percentages of the Treaty share of coho (including “non-local” interceptions) of each allocation unit to its respective terminal area: Allocation Unit Terminal Share Skagit 55% Stillaguamisb/Snohornish 70% Hood Canal 70% Strait of Juan de Fuca Tributaries 55% South Sound 86% *1216In order to achieve the treaty terminal shares the total Treaty harvesta-ble allocation, from each allocation unit must be defined, and preterminal and non-local interceptions must be identified and set at levels that achieve these terminal fishery objectives. At the present time, a predictable method for defining the total treaty harvestable amount has not been agreed to by all Signatories. Therefore, it is uncertain whether the terminal shares can be achieved under the preterminal fisheries levels defined in Section 6.3 and the non-local interceptions described in Section 6.7. Thus, at this time, it may not be possible to fully achieve the terminal shares. The sharing relationships between terminal and preterminal fisheries shall be reviewed at the end of the 4 year period of this Agreement. For the long term, when the harvestable volume of coho salmon increases, it is expected that the terminal shares will also increase. 6.6.2 The Signatories to this agreement shall make good faith efforts to utilize the period of this agreement to develop a comprehensive management system for coho salmon that provides a predictable method for determining harvestable numbers in any year. When this system is developed, the preterminal fisheries levels defined in Section 6.3, and the non-local interception levels defined in Section 6.7, shall be adjusted for the remaining term of this Agreement to the extent neees-sary to achieve, on the average, at least the terminal shares listed above. 6.6.3 Regardless whether a comprehensive State-tribal agreement on coho management can be achieved, the Signatories agree that, within 4 years, when it is expected that current analyses of coho runs, catch distribution, cohort reconstruction, sustainable rates of exploitation, and rates of stock productivity are completed, the Signatories will determine how to set their fisheries to achieve defined terminal and preterminal (including non-local) shares for each run, over the entire range of run sizes. 6.7 Non-Local Terminal Area Interceptions. 6.7.1 Purpose and Goal. It is the intent of this Agreement to reduce terminal area interceptions of non-local natural fish. In conjunction with the adjustment of harvest levels called for by sections 6.6.1 and 6.6.2, it is the present goal of the Signatories to reduce nonlocal interceptions by 50% from historic levels, using time/subarea restrictions and other methods, as new data becomes available. It is also the intent of the Signatories to preserve treaty harvest opportunity, historically experienced, in these non-local terminal areas. The non-local terminal area currently known to apply to each stock are, Stock Area Skagit 8A, 10 and Stillaguamish 10 and 11 Snohomish 10 and 11 Hood Canal 10 and 11 *12176.7.2 Adjustment Methodology. Adjustments in each non-local terminal area shall be those derived under the provisions of sections 6.7.3 or those derived under section 6.7.4. Provided, however, that prior to implementing those derived under 6.7.3 and by August 15, 1996, the affected Signatories shall perform technical evaluations to assess the effect of 6.7.3 and 6.7.4 and shall prepare any necessary procedural and method adjustments including the possibility of the selection of a single method for the agreement of the affected Signatories. 6.7.3 The first method for determining whether an adjustment is necessary, and the calculation of such adjustment, is as follows: a.Step One: Harvest Levels. Initially determine the projected treaty harvests of natural coho salmon in terminal and preterminal fisheries according to applicable court orders, agreements, and other provisions of this Agreement. No adjustment shall be required in the Area 8A, Area 10, or Area 11 treaty fishery whenever the total preseason projected treaty harvest (direct or incidental) of coho salmon within Area 8A, 10 or 11 respectively, as would be adjusted under 6.7.3c, is equal to or less than 10,-000 coho. b.Step Two: Non-local Terminal Percentage. For each of the natural stocks listed in 6.7.1, the predicted percentage of the treaty share of harvest of that stock which would be taken in each applicable non-local area shall be determined and compared to the following 1989-1993 mean non-local harvest percentage by area, as set forth below: 1989-93 Mean Percent 80% of 1989-93 Mean Stock Area 8A S.Sound Area 8A S.Sound Skagit 8.9% 7.0% 7.1% 5.6% Stillaguamish 7.1% 5.7% Snohomish 8.1% 6.5% Hood Canal 10.5% 8.4% c.Step Three: Adjustments 1. If the percentage of the treaty share of the harvest of that stock in any of the applicable non-local terminal areas identified in 6.7.1 (Areas 8A, 10 and 11) exceeds eighty percent (80%) of the 1989-93 mean percent, then the impact on non-local fish, in that area must be reduced until it no longer exceeds 80% of the 1989-1993 mean percent impact, or the fishery meets the criteria of section 6.7.3a above. 6.7.4Notwithstanding anything in section 6.7.3, the following method shall apply if it would result in a greater reduction in non-local terminal area harvest: a. Step One: Harvest Levels. Initially determine the projected treaty harvests of coho salmon in terminal and preterminal fisheries according to applicable court orders, agreements, and other provisions of this Agreement. b. Step Two: Non-local Terminal Percentage. The predicted U.S. harvest rate, that is, the percentage of the U.S. wild run size (catch plus *1218escapement) of the Skagit River stocks which would be taken in each applicable non-local area, and in its terminal area, shall be determined and compared to the following 1989-1993 mean percentage non-local harvest rates by area, as set forth below: 1989 Mean U.S. Harvest Rate 64% of 1989-93 Mean 80% of 1989-93 Mean Stock Terminal Area Area 8A South Sound Area 8A South Sound Area 8A South Sound Skagit ■ 11.2% 2.2% 1.7% 1.4% 1.1% 1.8% 1.35% c. Step Three: Terminal Harvest Levels. The predicted terminal share of Skagit natural coho shall be determined and compared with its terminal share listed in 6.6.1. d. Step Four: Adjustments. If the predicted terminal share is less than the terminal shares listed in 6.6.1 for Skagit coho, and the percentage of the U.S. wild run size of that stock projected to be caught by Treaty fisheries in any of the applicable non-local terminal areas identified in 6.7.1 (Areas 8A, 10 and 11) exceeds sixty-four percent (64%) of the 1989-93 mean harvest rate for that area, then the harvest of non-local fish in that non-local terminal area must be reduced until one of these two criteria are achieved. However, if the Skagit terminal area harvest rate on the U.S. wild run size of that stock is projected to exceed the 1989-1993 mean harvest rate (of 11.2%), then a non-local harvest rate of up to eighty percent (80%) of the 1989-1993 mean U.S. harvest rate (or any higher harvest rate which achieves the respective terminal share listed in 6.6.1) would be permitted. 6.7.5Sections 6.7.3 and 6.7.4, which provide non-local reductions based primarily upon analysis of non-local harvest of Skagit River and Hood Canal stocks, will also provide significant protection to Stillaguamish-Snoho-mish coho. If the application of either of the non-local reduction methods set forth in those sections to the Stilla-guamish-Snohomish stocks would require greater reductions in coho harvests than those for Hood Canal or Skagit stock in any non-local terminal area, the affected Signatories shall make good faith efforts to apply one of those methods, or some other method, which provides results comparable to those provided for Hood Canal and Skagit stocks under 6.7.3 and 6.7.4. 6.7.6 This section does not amend or supersede the provisions in section 6.3.I.C. 6.7.7 Whenever significant non-local interceptions of the Strait of Juan de Fuca natural stock, or any primary natural stock occurs in any other areas, these limitations will need to be considered and expanded accordingly. 6.7.8 All Signatories will support proposals for subarea/time-specific stock-composition studies that can be used to shape fisheries to avoid non-local stocks. WDF’s 1991 Saltonstall-Ken-nedy proposal can be used as a starting point. 6.7.9 The Signatories agree to implement the time and area management adjustments (shaping) necessary to achieve the terminal area returns set forth in 6.6.1 above when the studies indicate that the required reductions in non-local harvests can be achieved *1219by such shaping. If it turns out that shaping does not lessen the impact to non-local stocks, or shaping is not feasible, then catches in the entire area must be reduced in order to meet the intent of the sharing targets described in Section 6.6.1 or Section 6.7.2, whichever requires the smaller reduction in catch. 6.7.10 For the long term, when har-vestable numbers increase, it is expected that the terminal shares, set forth in Section 6.6.1 above, will also increase. 6.7.11 The annual agreed plan to implement the reductions in 6.7.1 through 6.7.10 above, whenever required, shall be completed prior to June 1. 6.7.12 Until the provisions in sections 6.6 and 6.7 of this Agreement that provide for reductions in non-local interceptions in the non-local terminal areas identified in section 6.7.1 are agreed to or otherwise made binding on all Tribes that exercise fishing rights in one of these areas, the Signatories to this Agreement shall not be required to reduce their harvests in that area to meet those objectives. However, if all tribes that exercise fishing rights in one of the non-local terminal areas agree to or are bound by these provisions, but all of the tribes that fish in a second non-local terminal area are not so bound, the provisions of this section 6.7.12 shall apply to the second area but not the first area. Until all tribes that exercise fishing rights in Area 10 agree to or are bound by these provisions, the nonlocal reductions provided in this section shall not be applied in Area 11 during fishing seasons where the treaty harvestable amount in Area 11 is 10,000 coho or less. The Signatories agree to endorse and support the adoption of preseason and in-season planning efforts and negotiations aimed at implementing the provisions of section 6.6 and section 6.7 of this Agreement. 7. INTERTRIBAL SHARING OF CHUM SALMON 7.1 Scope. This section shall govern the intertribal sharing in treaty Indian fisheries for chum salmon, originating in Puget Sound and British Columbia streams, and harvested in Puget Sound marine and freshwater areas lying east of Tatoosh Island. Prior to the end of the term, the Signatories shall evaluate its performance and will determine whether to extend it, modify it, or replace it with an alternate agreement. 7.2 British Columbia Chum Salmon Allocation. 7.2.1 Non-treaty harvest allocation. In the western and eastern Strait of Juan de Fuca fisheries (Areas 4B, 5, and 6C) and (Area 6) respectively, it is assumed that there shall be no non-treaty fisheries directed at chum salmon, for the duration of this Agreement. 7.2.2 Treaty/ non-treaty allocation. Additionally, it is assumed that in the eastern Strait of Juan de Fuca and San Juan Islands (Areas 6, 7, 7A), the annual limit to the harvest, established by the applicable provisions of the Pacific Salmon Treaty or, lacking such provisions, by the State and Tribal managers, shall be shared 50/50 between the treaty and non-treaty fisheries. To the extent that treaty fisheries occur in Areas 6 and/or 6A, those harvests shall be included in the annual treaty ceiling established for Areas 7 and 7A. The treaty or non-treaty share may be further adjusted *1220by adding or subtracting equitable adjustment paybacks for prior years, per the Puget Sound Salmon Management Plan (PSSMP). 7.2.3 Intertribal Sharing. In the western Strait of Juan de Fuca, eastern Strait and San Juans’ fisheries, the participating tribes shall only enact openings that have been agreed-to by all participants, utilize uniform net length restrictions, and each participating tribe shall authorize the same open periods in each fishery. 7.3 Puget Sound Chum Salmon Allocation. 7.3.1 Non-treaty harvest allocation. It is assumed that unless otherwise agreed among affected parties, in any year, the non-treaty share of chum salmon shall be 50% of the harvesta-ble number of each race (summer, fell and winter), of chum salmon originating from each Puget Sound region, except the Mowing aggregations shall be permitted: Hood Canal summer plus fall; and South Puget Sound summer plus fall plus winter. 7.3.2 Intertribal sharing intent. It is a goal of Intertribal Allocation to continue to allocate the great majority of the Treaty share of chum (including “non-local” interceptions) of each allocation unit to its respective terminal area fisheries. The measures shown below may be further adjusted as additional information affecting the feasibility of achieving this goal becomes available. During the period of time that this Agreement is in force, because of the lack of adequate information on area-specific stock composition, no specific action shall be mandated, preseason or in-season, to regulate the harvest of non-local chum salmon captured in mixed-terminal areas (7B, 8, 8A, 10, 12), unless the Signatories agree otherwise. However, the Signatories shall develop a coordinated approach to account post-season for all catches from each region of origin. It is the intent of all Signatories to design the management measures necessary to regulate all interceptions (including non-local), to achieve their stated (or as may be modified) sharing intent in the future. The sharing relationships between terminal and preterminal fisheries shall be reviewed at the end of the four year period of this Agreement, and adjustments will be made in the sharing proportions if necessary. 7.3.3All tribes will support proposals for stock-composition studies that can be used to quantify impacts to individual allocation units and help to shape fisheries to control such impacts. The current Strait of Juan de Fuca, San Juans, Area 10, Area 12, Area 8, and Area 8A GSI studies can be used as a starting point. 7.4 Management for Intertribal Sharing. For the period controlled by this Agreement, the Signatories shall control interceptions using the fishery — specific measures outlined below. Prior to the conclusion of this Agreement, the Signatories shall evaluate the success of this Agreement by comparing the results achieved against the Signatories intent, as outlined in this Agreement. This evaluation shall be used by the Signatories to formulate a longer term sharing plan. For the duration of this Agreement, the following measures shall be in effect. 7.4.1 Western Strait of Juan de Fuca (Areas 4B, 5, 6C). Annual ceiling catch — based management with three ceiling levels of catch: 20,000 when the harvestable number of fell chum of all Puget Sound regions, except *1221Hood Canal, is 380,000 or less. 50,000 when the harvestable number of fall chum of all Puget Sound regions, except Hood Canal, is greater than 380,-000 and less than 760,000. 60,000 when the harvestable number fell chum of all Puget Sound regions, except Hood Canal, is greater than, 760,000; or when the harvestable number of fell chum from all Puget Sound regions, including Hood Canal, exceeds 1,320,-000. The above run abundance measures have been used as surrogate measures for the abundance of Puget Sound natural fall chum salmon. 7.4.2 Whenever 50,000 or 60,000 ceilings are appropriate, openings must be designed to spread the harvest across the fall chum management period. Chum-directed fisheries shall not be authorized during the summer or winter chum management periods. 7.4.3 The ceiling harvest amounts prescribed for this fishery shall be established annually on the basis of preseason forecasts. The ceiling amounts are not entitlements i.e. if the tribes participating in this fishery fail to take their allowable harvest, there will be no carryover to another year. 7.4.4 However, if post season information indicates that the wrong level of harvest was assigned, an adjustment equal to the difference between the actual catch and that of the correct level, shall be made in the first year in which there is a harvestable surplus from which the adjustment may be taken. If this fishery, through management error, exceeds its ceiling, it shall owe a payback payable in the first future year in which a ceiling of 50,000 or more is available. However, no annual payback shall be required for amounts of 2,500 fish or less, but at the end of this Agreement, all payback amounts shall become due. Payback amounts (including the 2,500) and schedules shall be as defined in the Puget Sound Salmon Management Plan. 7.4.5 Eastern Strait of Juan de Fuca and San Juans (Areas 6, 7, 7A). Annual ceiling catch — based management with ceilings established as 50% of the Pacific Salmon Treaty or (in its absence) U.S. managers established (as appropriate) ceiling for this fishery. If the Area 6 fishery remains outside any internationally established limit, its catch shall be included in the annual treaty catch ceiling established for Areas 7 and 7A. Chum — directed fisheries shall not be authorized during the summer or winter chum management periods. 7.4.6 Area 8 (Skagit Bay). Fisheries directed at fall chum salmon shall be managed to harvest Skagit — origin fell chum salmon and stock composition work will be undertaken to monitor the by-catch of non-local fell chum. 7.4.7 Area 8A (Port Gardner — Port Susan). Fisheries directed at fell chum salmon shall be managed to harvest Stillaguamish / Snohomish — origin fall chum salmon and stock composition work will be undertaken to monitor the by-catch of non-local fall chum. 7.4.8 Area 9 (Admiralty Inlet). No commercial fishery openings shall be authorized through the year 1999. However, during this period, the tribes who are otherwise allowed to fish in Area 9 (the Area 9 tribes), in consultation with affected tribes, will implement annual research (test and/or evaluation) fisheries in this area, in order to gather information to fulfill the following objectives: a. Obtain catch-per-effort and catch-ability information, necessary for *1222the formulation of catch-predictive models for fall chum salmon in Area 9 fisheries. b. Investigate the feasibility of development of databases for the purpose of improving the reliability of early in-season updated estimates of abundance of the fall chum salmon stocks contributing to Area 9 fisheries. c. Assess the fall chum stock composition at various portions of Area 9, as funding allows. 7.4.9 Any such research fisheries shall be pursuant to an annual experimental design developed by a technical team, appointed by the Area 9 tribes. The technical team shall develop, in consultation with affected tribes, an annual experimental design of the research fishery in this area, in order to accomplish the above objectives. In late 1999 and early 2000, the technical team will provide to all affected tribes an analysis of the study results along with recommendations concerning any application of those results. 7.4.10 The Signatories to this Agreement further agree that after the technical team has reported its findings, an Area 9 harvest sharing plan, similar to that developed in SSMAP, as modified by results available from the foregoing study, will be formulated and implemented. Prior to that time, the Area 9 Tribes also agree to enact Tribal Ordinance revisions as necessary to permit each Tribe to effectively control its effort in any subsequent Area 9 fisheries. 7.5 Area 10 (Edmonds to Vashon). Chum directed fisheries shall not be authorized during the summer or winter chum management periods. During the fall chum management period, fisheries may target on harvestable fall chum salmon of South Puget Sound origin, and stock composition work will continue to monitor the by-catch of non-local fall chum. 7.5.1 For the purpose of implementing this Agreement, the Area 10 shares identified in this Section shall be determined and managed in-season according to the best available information. The intertribal allocation accounting shall be based on the post-season audit of stock abundance, treaty catch, escapement, treaty and non-treaty as well as intertribal allocation shares, and determination of pay backs due to intertribal allocation imbalances. Non-landed mortal-ities (such as net dropout) shall be allocated to the fishery in which they occur. 7.5.2 The basis for harvest sharing of chum in Area 10 shall be the 1983 Stipulation of Muekleshoot, Suquamish and Tulalip Tribes, RE Tulalip Usual and Accustomed Fishing Places, No. 9213 — Phase I, (MST Agreement) as amended herein, but only if and so long as the MST Agreement is applied to and treats the other Signatories harvesting chum in Area 10 in the same manner as the MST Tribes. The parties to the MST Agreement shall not make any modifications to the MST Agreement that affect the harvest shares of other Signatories to this Agreement. The harvest pool, as defined therein, shall be modified according to provisions of Section 7.5.3 of this Agreement. The common pool, shall be calculated as the harvest pool minus all equity harvest, and the total treaty harvest in Area 10 shall not exceed more than 20% of the common pool times the number of tribes with established fishing rights in Area 10, plus any equity harvest due. For purposes of this *1223Agreement, tribal group as used in the MST Agreement shall refer to one or more of the following: Suquamish/Muckleshoot — Central Sound Region Group; Tulalip/Stillaguamish— Stillaguamisb/Snohomish Region Group; Swinomish/Upper Skagit/Sauk Suiattle — Skagit Region. The equity harvest due any tribal group shall be reduced from that provided for in the MST Agreement according to the following formula. For each tribal group due equity from Area 10, a proportion shall be calculated as the number of Tribes per tribal group eligible for equity harvest in Area 10 divided by the total number of Tribes participating in the Area 10 common pool harvest. The original equity harvest due to each tribal group will then be reduced by this proportion. For example, if Suquamish/Muckleshoot are due equity from the Area 10 harvest pool based on the original MST Agreement, that equity would be reduced by 2/3 (Suquamish/Muckleshoot due equity divided by Suquamish/Muckleshoot/Tulalip as participants in the common pool harvest — if Tulalip is due equity, their equity would be reduced by 1/3). 7.5.3The Treaty chum harvest objective for Area 10 shall be calculated so as not to exceed that authorized under the MST Agreement, as previously amended. Specifically, the harvest pool will be calculated as follows: a. at treaty share levels of South Sound summer plus fall chum between 0 and 57,000 fish, the harvest pool is 18% of the treaty share, minus treaty preterminal interceptions of South Sound chum; b. at treaty share levels of South Sound summer plus fall chum between 57,000 and 119,000 fish, the harvest pool is 10,260 fish, plus 52% of the amount above 57,000, less treaty preterminal interceptions of South Sound chum; c.at treaty share levels of South Sound summer plus fall chum above 119,000 fish, the harvest pool is 42,-500, plus 18% of the amount above 119,000, less treaty preterminal interceptions of South Sound chum. The Area 10 share of each tribe or tribal group will include any incidental chum interceptions of South Sound origin taken by that tribe in fisheries targeting on other species in Area 10 or Area 9. A table illustrating the total projected Area 10 chum harvest under various South Sound Treaty shares, is appended to this Agreement. 7.5.4 Initial fishery scheduling by the tribes that fish in Area 10 shall be based on the preseason forecasts of run sizes and anticipated interceptions of South Puget Sound — origin chum. During the season, fishing plans shall be adjusted in response to in season updated estimates. 7.5.5 If overages occur in the annual harvests of the tribes fishing in Area 10, the terminal South Sound share shall be adjusted for that year, to compensate for the overages, and shall be paid back in the following year by way of reduction in the tribal fishery that caused the overage. 7.5.6 It because of management or estimation error, the tribes fishing Area 10 fail to take, or exceed their allowable amount of harvest, as estimated using post-season estimates, payback adjustments will be available as follows: i) Any necessary adjustments will be made only in years when the total South Sound origin treaty share is greater than 57,000. *1224ii) No adjustment shall be made for deviations of less than _±_ 10% of the allowable catch except that deviations in terms of actual underages and overages shall be cumulative and due in full whenever the absolute value of the accumulated deviation exceeds 10% of a year’s allowable catch, and the total treaty share exceeds 57,000. However, in no case shall the South Sound tribes be obligated to pay back more than 10% of the extreme terminal South Sound share in any one year. Notwithstanding the above, at the conclusion of this agreement, the cumulative amount of all such deviations shall become due. 7.5.7 It is the intent of the tribes, party to this agreement, to ensure that when the treaty share of summer plus fall chum salmon, of South Puget Sound origin, is less than 57,000, 82% of the share shall be made available for harvest in South Sound terminal areas beyond Area 10. When the total treaty share is between 57,000 and 119,000, 46,740 plus 48% of the share over 57,000 shall be made available for harvest in South Sound terminal areas beyond Area 10. When the total treaty share is over 119,000, 76,500 plus 82% of the share over 119,000 shall be made available for harvest in South Sound terminal areas beyond Area 10. 7.6 South Sound Winter (Late) Chum. For the period covered by this Agreement, there will be no directed Treaty Indian preterminal fisheries directed at the South Sound origin winter (late) chum. Treaty fisheries conducted outside the winter chum management period shall be managed to minimize incidental impacts to South Sound winter (late) chum. The parties agree that an annual harvest of up to 21,500 Nisqually River winter (late) chum salmon shall be reserved exclusively for treaty harvest in the extreme terminal area. As a result, up to 10,750 South Sound-origin summer-fall chum salmon shall be added to the nontreaty share in the following season. It for any reason, the State seeks a share adjustment greater than 10,750 from the treaty share of the summer-fall chum, such matters require the agreement of affected parties. Further, there shall be no increase in the enhancement of other South Puget Sound winter chum without the agreement of affected parties unless such enhancements have been established in accordance with the Puget Sound Salmon Management Plan. 7.7 Area 12 (North Hood Canal). Fisheries directed at fall chum salmon shall be managed to harvest Hood Canal— origin fell chum salmon and stock composition work will continue to monitor the by-catch of non-local fall chum. 8. TECHNICAL WORK. 8.1 General: 8.1.1 The Agreement prescribes the acquisition of technical information with which to address outstanding technical questions which could affect future sharing agreements. Over the period of this Agreement additional technical information will be gathered and assessed to provide a better basis for the negotiation of future allocation agreements. In determining priority tasks, data helpful or required to implement this Agreement should receive the greatest attention. The Signatories agree to participate with other Tribes not Signatories to this Agreement in a process to address the technical tasks described herein and to commit their good faith effort to those tasks. *12258.1.2 The definitions for “rebuilding” and “rebuilt” will have an influence on the sharing options available in the future. To the extent that these definitions are a matter of policy the technical tasks associated with them will depend on the definitions. 8.1.3 The informational needs in general appear to fall into similar groupings over all species, while the tasks required to acquire the information varies between species. In general the needed information includes but is not limited to three general areas: 1) productivity of both natural and hatchery stocks; 2) distribution of each stock or group of stocks throughout all fisheries; and 3) catch composition of each fishery by time and area. The tasks required for the accumulation of this information is described below for each species as well as other tasks of importance for that species alone. Other specific tasks as outlined in the agreement will also be addressed. 8.2Chinook: Many of the answers to questions surrounding chinook management will be tied to the definitions and decisions in other forums such as PSC and PFMC. Tied to these decisions then will be the development of specific schedules for rebuilding of depressed stocks which may limit in the short term options for fully achieving allocation objectives. 8.2.1 Productivity — Assess current and alternative management and enhancement strategies in order to project future levels of abundance. Review current escapement requirements for both natural and hatchery stocks to provide information on the current abundances and insight into the potential future productivity. 8.2.2 Stock distributions — Assess the CWT tagging and sampling programs and utilize information for cohort run reconstruction techniques to assess the distribution of historical catches. With this information, complete work on the chinook predictive model to assess future management options and sharing Agreements. 8.2.3 Catch Composition — Utilizing CWT data assess the composition of catch in individual fisheries. Determine the extent to which time and area shaping may be feasible for individual stocks as a management tool in individual fisheries for both conservation and allocation needs. Evaluate for each fishery the feasibility and applicability of exploitation rate based management. 8.3 Sockeye: While no specific tasks have been identified for Fraser River Sockeye stocks it will be important to keep in mind that future PST Agreements may influence the relationships for sockeye sharing both in terms of intertribal and treaty/non-treaty. The depressed status of Puget Sound sockeye stocks (particularly Lake Washington) warrants the following technical tasks be accomplished. 8.3.1 Assess the feasibility of rebuilding and/or enhancing these stocks. This assessment should include an evaluation of the production, habitat, and harvest issues that may influence the success of any rebuilding attempts. 8.3.2 Support ongoing efforts to identify and correct pre-smolt mortality sources for Puget Sound stocks. 8.4 Coho: With the changing management environment surrounding particularly coho salmon there is a heed to evaluate the current management goals and objectives to determine if they are still applicable for the future. 8.4.1Productivity — The overall productivity of both natural and hatchery stocks needs to be assessed both *1226in terms of current management as well as future situations. This will include an evaluation of escapement requirements and stock groupings. The beginning bases for this and other assessments will be the cohort run reconstruction using CWT data, the evaluation of the continued feasibility of primary and/or secondary management measures as they are currently being applied to coho, as well as the applicability of the current stock groupings is also needed. 8.4.2 Distribution — Based on the assessment of the CWT cohort reconstruction data determine the distribution of stocks throughout both domestic and international fisheries. Determine impacts on “non-local” stocks in all fisheries. 8.4.3 Composition — The composition of stocks in each fishery needs to be evaluated This can be done using the cohort run reconstruction. Allowable exploitation rates in fisheries can then be assessed as well as evaluating the feasibility of shaping fisheries through time and area measures. The effects of managing for both hatchery and natural exploitation rates in each fishery on individual stocks needs to be assessed. 8.4.4 All of the above is dependent on the completion of the cohort run reconstruction. This will then allow for the update of predictive models used for the assessment of management actions. 8.5 Chum: While chum salmon do not presently appear to be facing productivity problems as other salmon species are there is a definite need to be cognizant that all salmon species populations are cyclical and may in the future face problems. 8.5.1 Distribution — continue and expand current GSI studies to evaluate stock impact distinctions between summer, fall and winter chum stocks. This will provide a better data base for the reconstruction of the run reconstruction data base for chum. 8.5.2 Stock Composition — Evaluate the composition of stocks in each fishery both directed and incidental for the determination of impacts and shaping measures that may be available. This again will require the continuation of the GSI studies to identity stocks taken in each fishery. 8.5.3 Evaluate exploitation rates and provide analysis of appropriate levels for management options. Included will be options for adjusting these rates through fisheries. 8.5.4 The complete revision of the run reconstruction data base is a mandatory task in order to address the above issues as well as determine alternative options for the future. 8.5.5 The Signatories to this Agreement shall support studies to determine differential distribution of coho stocks in Areas 7 and 7A during the latter portion of the coho management period, as well as the early portion of the fall chum management period, in order to gain information necessary for the protection of weak stocks, and improve the accounting of preterminal interceptions. 9. PROCEDURAL LIMITATIONS. 9.1 No Signatory to this Agreement will file prior to April 1,1999, a request for determination or equivalent pleading against any other Signatory to this Agreement, seeking an intertribal allocation of salmon harvest or harvest opportunity except in accordance with this section. This restriction does not apply to proceedings *1227initiated to enforce this Agreement or any other agreement or order providing for an allocation of fish between or among tribes. 9.2 All signatories agree that except for issues of conservation and enforcement, each will first restrict any litigation it initiates for intertribal allocation of har-vestable salmon to actions or subproceed-ings which both: (a) seek relief solely against tribes who are not Signatories; and (b) seek relief which is not inconsistent with the fishing regimes set forth herein. Any litigation that seeks a fishery regime that is equivalent to or more restrictive than the fishery regimes set forth herein shall be deemed not inconsistent with such regimes for the purposes of this subsection. 9.3 However, a Signatory may seek to join another Signatory as a defendant or respondent in an action or subproceeding brought initially in compliance with paragraph 9.2 after either of the following two conditions are satisfied: (a) a court orders, as a preliminary matter, that the proposed defendant or respondent Signatory is a necessary party to the action or subproceeding; or (b) a court either: (i) denies, (ii) declares that it is likely to deny, or (iii) refuses, notwithstanding a request from a petitioning Signatory, to declare whether it is likely to deny a significant portion or aspect of the relief requested by the petitioning Signatory, and the petitioning Signatory thereafter meets and confers with the proposed Signatory defendant or respondent in an effort to obtain such relief; or its equivalent, and consensus cannot be reached. Only an initial ruling of a court is required to satisfy the conditions described in this section 9.3; efforts to seek reconsideration or appeal of such a ruling are irrelevant for this purpose. No Signatory waives any defense to any claim seeking a fishery allocation regime different from the regime set forth in this Agreement. 9.4 This Agreement is further conditioned so that if during the term of this Agreement, a remedy is awarded affecting a Signatory of this Agreement as a result of non-conservation, non-enforcement litigation permitted by this Agreement, then the effective date for that remedy or relief shall be after the end of this Agreement’s term, since this Agreement does not permit any Signatory to enforce any judgment obtained regarding fishing regimes for harvestable salmon, other than as provided herein or otherwise agreed by the affected Signatories, during its term. 9.5 Notwithstanding the foregoing subsections 9.1 through 9.4, the Nooksack Tribe may file before April 1, 1999, a request for determination or equivalent pleading against the Lummi Nation, seeking an allocation of the Nooksack River treaty salmon harvest or harvest opportunity between the Nooksack Tribe and the Lummi Nation, and any remedy or relief awarded as a result of such Nooksack-Lummi litigation shall be immediately effective and enforceable. 10. COVENANT NOT TO SUE. The petitioning Signatories have dismissed without prejudice the intertribal harvest allocation claims asserted by them in Sub-proceeding 86-5. The signing petitioners hereby covenant not to re-file or assert any such intertribal harvest allocation claims against the respondents before April 1,1999. *122811. PRINCIPLES. 11.1 It is intended by the Signatories that during the four years this Agreement is in force, all Signatories will devote the necessary efforts to completing the technical tasks outlined in Section 8. It is the understanding of all Signatories that these technical projects will help to provide the essential basis needed to develop a long term intertribal sharing regime for the tribes. 11.2 The producer of fish should reap significant benefits of economic return and stability for production efforts, implementing this “benefits to the producer,” principle will benefit all fishers and tribes by encouraging continuing habitat protection and enhancement that benefits both terminal and preterminal fisheries. 11.3 Terminal area tribes are entitled to an opportunity to harvest a fair and equitable portion of the treaty share of the salmon originating in their home region. Absent reasonable management measures, such as those provided for in this Agreement, some of these Tribes could be deprived of a fair and equitable share of the salmon originating in their home region. The Signatories intend this Agreement will minimize the likelihood of an unfair or inequitable distribution of harvest opportunity over the next four years. 12. THIRD PARTY BENEFICIARIES. There are no third-party beneficiaries to this Agreement. The terms and allocations contained in this Agreement were bargained for solely by the Signatories to this Agreement and are intended to benefit only the Signatories. 13. EFFECTIVE DATE. This Agreement shall become effective when all thirteen Signatories have executed this Agreement. 14.AUTHORIZATION AND COUNTERPARTS. Each undersigned representative of the Signatories certifies that he or she is fully authorized to enter into the terms and conditions of this Agreement and to execute and legally bind such Signatory to this document. This Agreement may be executed in counterparts and each shall be treated as an original. STIPULATION BETWEEN STATE OF WASHINGTON AND AREA-10AND-SOUTH TRIBES RE WITHDRAWAL OF STATE’S OBJECTIONS TO AREA-IO-AND-SOUTH INTERTRIBAL PLAN Subproceeding No. 86-5 (May 24, 1996) The State of Washington, the Squaxin Island Tribe, the Puyallup Indian Tribe, the Nisqually Indian Tribe, the Muckle-shoot Indian Tribe, the Suquamish Indian Tribe and the Tulalip Tribes, by counsel, hereby stipulate as follows: 1. The State of Washington hereby withdraws its May 14, 1996, objections no the Intertribal Salmon Allocation Plan for South Puget Sound (Area 10 and South) by and among the Squaxin Island Tribe, the Nisqually Indian Tribe, the Puyallup Indian Tribe, the Muckleshoot Indian Tribe, the Suquamish Indian Tribe and the Tulal-ip Tribes (hereafter “the Area-10-and-South Intertribal Plan”) in consideration of the clarifications and commitments made in this stipulation regarding the purposes and intent of the Area-10-and-South In-tertribal Plan. 2. The Area-10-and-South Intertribal Plan is not intended, nor shall it be construed, to modify any presently, effective order or court-adopted plan or agreement, with the exception of the 1983 Stipulation of Muckleshoot, Suquamish and Tulalip *1229Tribes Re Tulalip Usual and Accustomed Fishing Places, which is modified only as explicitly provided in Sections 6 and 7 of the Area-10-and-South Intertribal Plan. 8. The Area-10-and-South Intertribal Plan provides for allocation only of the treaty share of salmon, available for harvest in South Puget Sound by the six tribes that are parties to the Area-10- and-South Intertribal Plan. The Area-10- and-South Intertribal Plan, including Section 6.1, prescribes no changes in escapement policies established in the Puget Sound Management Plan, as amended. The parties recognize that natural stocks that originate in regions outside South Puget Sound (commonly called nonlocal stocks) are present south of the Area 10/9 line, just as nonlocal stocks are present elsewhere in terminal areas in the case area. The Area-10-and-South Intertribal Plan makes no changes in Court-determined provisions of Treaty/Nontreaty allocations as established in earlier decisions (i.e., the 50/50 sharing between Treaty and Nontreaty entities). 4. The Area-10-and-South Intertribal Plan is not intended, nor shall it be construed, to affect in any manner the State’s legitimate exercise of its authority to manage harvest for conservation of stocks in South Puget Sound or elsewhere. 5. The parties to this Stipulation acknowledge that from time to time the State of Washington and the tribes that are parties to the Area-10-and-South In-tertribal Plan may enter into management arrangements that may have the effect of further restricting harvests in South Puget Sound to address specific concerns regarding the status of weak stocks present in that area. The Area-10-and-South Inter-tribal Plan does not prevent the State of Washington and the parties to that plan from negotiating specific management actions that might further reduce treaty harvests in South Puget Sound in relation to the allocated shares provided by that plan. 6.The terms of this Stipulation are deemed incorporated in any order of the Court approving the Area-10-and-South Intertribal Plan. ORDER Upon consideration of the foregoing stipulation, IT IS SO ORDERED. INTERTRIBAL SALMON ALLOCATION PLAN FOR SOUTH PUGET SOUND (AREA 10 AND SOUTH) By and Among The Squaxin Island Tribe The Nisqually Indian Tribe The Puyallup Indian Tribe The Muckleshoot Indian Tribe The Suquamish Indian Tribe The Tulalip Tribes Subproceeding No. 86-5 (March 15, 1996) TABLE OF CONTENTS 1. AGREEMENT. 1231 2. TERM. 1232 3. UNDERSTANDINGS REGARDING USUAL AND ACCUSTOMED FISHING AREAS. 1232 *12303.1.1 Conduct of Fisheries in Area 10. 1232 a. Lummi. 1232 b. Swinomish. 1232 3.1.2 Conduct of Fisheries in Area 9. 1232 3.1.3 Material Understandings. 1232 4. INTERTRIBAL SHARING OF CHINOOK SALMON. 1233 4.1 Scope. 1233 4.2 Chinook Management and Allocation Basis. 1233 4.2.1 Escapement Policy. 1233 4.2.2 Treaty/Non-treaty Allocation. 1233 4.3 Limitations on Preterminal or Mixed Terminal Treaty Fisheries. . 1233 INTERTRIBAL SHARING OF SOCKEYE. 5. to 00 00 5.1 Intertribal Allocation of Puget Sound Sockeye. to OO 00 INTERTRIBAL SHARING OF COHO SALMON. 6. 1234 6.1 Terminal Shares-South Sound. 1234 6.2 Paybacks. 1236 6.3 Terminal Shares. 1237 INTERTRIBAL SHARING OF CHUM SALMON. 7. 1237 7.1Puget Sound Chum Salmon Allocation. 1237 7.1.1 Non-treaty harvest allocation. 1237 7.1.2 Intertribal sharing intent. 1237 Management for Intertribal Sharing. 1237 r3 to 7.2.1 Area 8A (Port Gardner-Port Susan). 1237 7.2.2 Area 9 (Admiralty Inlet). 1237 Area 10 (Edmonds to Vashon). 1238 r5 CO South Sound Winter (Late) Chum. 1239 TECHNICAL WORK. 1239 8. 8.1 General: 1239 8.2 Chinook: 1240 8.3 Sockeye: 1240 8.4 Coho: 1241 8.5 Chum: 1241 CONSULTATION AND EXCHANGE OF MANAGEMENT INFORMATION. 1242 9. PROCEDURAL LIMITATIONS. 1242 10. DISMISSAL WITHOUT PREJUDICE. 1242 11. NO THIRD-PARTY BENEFICIARIES. 1242 12. EFFECTIVENESS OF AGREEMENT. 1242 13. *1231INTERTRIBAL SALMON ALLOCATION PLAN FOR SOUTH PUGET SOUND (AREA 10 AND SOUTH) By and Among The Squaxin Island Tribe The Nisqually Indian Tribe The Puyallup Indian Tribe The Muckleshoot Indian Tribe The Suquamish Indian Tribe The Tulalip Tribes 1. AGREEMENT. 1.1 ' This Agreement is entered this 15th day of March, 1996, by and among the Muckleshoot Indian Tribe, the Puyallup Indian Tribe, the Squaxin Island Tribe, the Nisqually Indian Tribe (the “petitioners”), the Tulalip Tribes, and the Suquamish Indian Tribe (the “respondents”) (hereafter collectively the “Parties”). 1.2 The Parties desire to resolve for a term of years the harvest allocation claims and issues among them in Subproceeding 86-5 of United States v. Washington, Civil No.C70-9213, United States District Court for the Western District of Washington. 1.3 This Agreement represents a compromise of the Parties’ positions regarding the equities of allocation of harvestable treaty salmon in the ease of United States v. Washington. This Agreement is not intended to serve as a basis for establishing equitable allocation principles outside the context of this Agreement or for determining what might constitute an equitable allocation of harvestable treaty salmon among the Parties after the Agreement expires. 1.4 The Parties enter this Agreement to avoid the risks and burdens of litigation, as well as to devote their resources to further cooperative investigation and research of conditions of the fisheries and the status of stocks of importance to all of the Parties. 1.5 This Agreement sets forth intertri-bal sharing regimes. These regimes shall be in force for the next four years and shall apply to the harvest of salmon taken in the fisheries of each of the signatories. Unless expressly provided herein, nothing in this Agreement shall affect or alter the provisions of any other intertribal agreement or prior orders of the court regarding treaty fisheries. Nothing in this Agreement is intended to affect or alter the provisions or the effect of the 1996-1999 (2000) Management Plan for Puget Sound and Ocean Fisheries dated August 10, 1995, or its agreed modifications. (The Tulalip, Muckleshoot and Nisqually Tribes are not parties to that plan.). 1.6 This Agreement does not serve as the comprehensive agreement set forth by certain previous court orders and agreements between Tulalip and other tribes. Nothing in this Agreement shall modify, amend, or supersede the Stipulated Settlement Agreement of Swinomish Tribal Community and the Tulalip Tribes dated June 9, 1983 (Docket No. 9071), or the Court’s Order Approving Settlement Agreement Between Swinomish Tribal Community and Tulalip Tribes Re Puget Sound Fishing Area Claims dated July 8, 1983 (Docket No. 9190) that incorporated the Settlement Agreement by reference. 1.7 All references herein to SSMAP, the Salmon and Steelhead Management and Allocation Plan, Docket No. 11381, are for convenience only and do not imply adoption of SSMAP, in whole or in part. 1.8 Certain provisions of this Agreement require consent of the “affected parties” before other parties may take action mentioned in such provisions. As used in *1232such provisions, the term “affected parties” means all parties who, after notice, indicate that such action would affect their interests. For actions that this Agreement contemplates the Parties will take during preseason planning, the Parties agree that notice to all Parties’ fisheries directors shall be notice to all affected parties. 2. TERM. 2.1This Agreement shall remain in effect until rescinded by one or more of the Parties. This Agreement may not be rescinded before the end of the 2000-01 winter troll fishing season. The decision to rescind is within the sole discretion of each signatory. Notice of recision shall be effective on the first April 1 following the giving of the notice. . 2.2 The term of the Agreement recognizes the fact that, at present, there is insufficient agreed-upon information on stock composition in the various fisheries to permit adequate accounting of impacts and allow for the formation of a consensus on long-term management and allocation plans. The intent of this Agreement is to create the stability in fisheries and inter-tribal relations for the Parties to undertake the technical and policy work tasks that are needed in order to achieve a longer-term intertribal sharing regime. 2.3 The parties will commit the necessary effort and resources to fulfill the requirements of this Agreement as long as it remains in effect. 2.4 This Agreement when approved by the Court will be entered as an enforceable Order of the Court. Prior to June 1 of each year, the preseason plans or agreements developed pursuant to this Agreement shall be filed with the Court and served on all parties to cause no C70-9213. 3. UNDERSTANDINGS REGARDING USUAL AND ACCUSTOMED FISHING AREAS. 3.1 It is the understanding of the Parties, that during the term of this Agreement, the conduct of fisheries by the Swi-nomish and/or Lummi tribes in Areas 9 and 10, shall be governed by the following provisions. 3.1.1 Conduct of Fisheries in Area 10. a. Lummi. The Lummi Nation will not authorize or conduct fisheries in Washington Department of Fish and Wildlife Commercial Salmon Catch Management and Reporting Area 10 (“Area 10”) before the conclusion of the 1999, or as applicable 2000, fishing season. Thereafter, the Lummi Nation will not authorize or conduct fisheries in Area 10 unless it first secures a judicial determination that it has treaty fishing rights in Area 10. b. Swinomish. The Swinomish Indian Tribal community will not authorize or conduct fisheries in Area 10 unless it first secures a judicial determination that it has treaty fishing rights in Area 10. 3.1.2 Conduct of Fisheries in Area 9. If the Lummi Nation prevails in Subproceeding 89-2 then, the Lummi Tribe agrees not to exercise any fishing rights which may be confirmed in Subproceeding 89-2 before the conclusion of the 1999, or as applicable 2000, fishing season. 3.1.3 Material Understandings. The Parties’ understandings, as stated above, are material facts upon which this Agreement is predicated and are necessary to the implementation of this Agreement. *12334. INTERTRIBAL SHARING OF CHI-NOOK SALMON. 4.1 Scope. This section applies to the harvest of chinook salmon stocks that originate or are taken in Puget Sound, the Strait of Juan de Fuca, the San Juan Islands and the Point Roberts Area. 4.2 Chinook Management and Allocation Basis. 4.2.1 Escapement Policy. This chapter prescribes no changes in escapement policies established in the Puget Sound Salmon Management Plan regarding chinook. 4.2.2 Treaty/Non-treaty Allocation. This chapter prescribes no changes in Court-determined provisions governing Treaty/Non-treaty allocations (i.e., 50/50 sharing between Treaty and Non-treaty); nor does it change the existing management and allocation basis of the various races of chinook (e.g., spring chinook, summer/fall chi-nook). 4.3 Limitations on Preterminal or Mixed Terminal Treaty Fisheries. The fishery limitations prescribed in this Section are the result of the low runs anticipated and are in no way intended to define the potential extent of Treaty chinook fisheries. At the end of the initial term, these limitations will be re-evaluated to determine the extent to which the limitations should be relaxed, expanded, otherwise modified, or terminated. During this initial term, taking into account the depressed condition of Puget Sound chinook stocks and the need for harvest constraints, the Parties agree: 4.3.1to permit no new treaty fisheries targeting on Puget Sound chinook salmon in any preterminal or mixed terminal areas of Puget Sound, unless otherwise agreed; 4.3.2 to permit no expansion of treaty fisheries authorized during 1989-95 period targeting on Puget Sound chi-nook salmon in any preterminal or mixed terminal areas of Puget Sound, unless otherwise agreed; and 4.3.3 to continue to limit incidental chi-nook harvests by appropriate time, gear, and area restrictions for all fisheries that impact weak chinook stocks. 5. INTERTRIBAL SHARING OF SOCKEYE. 5.1Intertribal Allocation of Puget Sound Sockeye. It is expected that, for the foreseeable future, incidental harvests of Puget Sound sockeye in fisheries directed at Fraser River sockeye and in fisheries directed at other species, in terminal areas, will consume the entire harvestable amount of sockeye from these runs. If, however, an additional harvestable amount is available, the following rules apply: a. Area 10 and Lake Washington System: The basis for harvest sharing in Area 10 and the Lake Washington System shall be the 1983 Stipulation of Muckleshoot, Su-quamish and Tulalip Tribes, RE Tu-lalip Usual and Accustomed Fishing Places, No. 9213 — Phase I, (“MST Agreement”), provided that nothing in this Plan shall prevent the parties to the MST Agreement from modifying that agreement, if such modification does not affect the harvest shares of other parties to this Agreement. b. Additionally, if the parties to the MST Agreement fail to reach agreement when a Treaty harvestable share of Lake Washington sockeye of up to 50,000 fish is available, any remaining Treaty harvestable sockeye, after preterminal incidental interceptions, shall be shared *123475%/25% between Muckleshoot and Suquamish Tribes respectively. 6. INTERTRIBAL SHARING OF COHO SALMON. 6.1 Terminal Shares — South Sound. 6.1.1 All coho harvested in Area 10 and areas south of the Area 9/10 line have been accounted for as South Puget Sound origin coho, and South Puget Sound origin coho caught in other terminal areas have been excluded from the South Puget Sound shares. For the sole purpose of determining shares as provided in this Section, the Parties will continue to utilize this accounting method in all years governed by this agreement. 6.1.2 For the purpose of implementing this Agreement, the Area 10 and 11 shares identified in this Paragraph 6.1 shall be determined and managed in-season according to the best available information. The intertribal allocation accounting shall be based on the post-season audit of stock abundance, treaty catch, escapement, treaty and non-treaty as well as intertribal allocation shares. Non-landed mortalities (such as “net dropout”) shall be allocated to the fishery in which they occur. 6.1.3 The basis for harvest sharing in Area 10 shall be the MST Agreement as amended herein, provided that nothing in this Agreement shall prevent the parties to the MST Agreement from modifying that Agreement, if such modification does not affect the harvest shares of other parties to this Agreement. The harvest pool, as defined therein, shall be modified according to provisions of Paragraph 6.1.4of this Agreement. The common pool shall be calculated as the harvest pool minus all equity harvest, and the total treaty harvest in Area 10 shall not exceed more than 20% of the common pool times the number of tribes with established fishing rights in Area 10, plus any equity harvest due. For purposes of this Agreement, the term “tribal group” shall refer to one or more of the following: Suquamish/Muckleshoot — Central Sound Region Group; Tulalip/Stillaguamish— Stillaguamish/Snohomish Region Group; Swinomish/Upper Skagit/Sauk Suiattle — Skagit Region Group (the Swinomish/Upper Skagif/Sauk Suiat-tle Region will only be treated as a tribal group if the Swinomish Tribe receives judicial confirmation of its usual and accustomed fishing grounds in Area 10 during the term of this Agreement). The “equity harvest” due to any tribal group shall be reduced from that provided for in the MST Agreement by a proportion equal to the number of Tribes per tribal group eligible for equity harvest in Area 10 divided by the total number of Tribes eligible to participate in the Area 10 common pool harvest. For example, if Suquamish/Muekleshoot are due equity from the Area 10 harvest pool based on the original MST Agreement, that equity would be reduced by 2/3 (Suquamish/Muekleshoot due equity divided by Suquamish/Muckleshooi/Tulalip as participants in the common pool harvest. If Tulalip is due equity, its equity would be reduced by 1/3). 6.1.4The Treaty coho harvest objective for Area 10 shall be calculated as follows: a. When the treaty allocation of South Sound coho is less than 100,-000 fish, no Treaty directed coho fishery shall be conducted in Area 10. Incidental coho catches during Area 10 chum salmon fisheries will *1235be projected in-season. If this projected catch is exceeded, an amount equal to the excess will be subtracted from the common pool share of the Tribe or Tribal group responsible for the excess, in the next future year in which a directed Treaty coho harvest takes place in Area 10. There will be no payback to Area 10 fishing Tribes if the incidental catch during chum fisheries is less than the projected amount. b. When the treaty allocation of South Sound coho exceeds 100,000 fish, the Area 10 treaty share shall not exceed the lesser of (1) an amount which permits at least 100,-000 treaty coho, less preterminal treaty interceptions, to pass through Area 10, or (2) that permitted under the MST Agreement, as previously amended in Paragraph 6.1.3. Specifically, the harvest pool under the MST Agreement, as amended will be calculated as follows: i) at treaty share levels of South Sound coho between 100,000 and 230,000 fish, the harvest pool is 30% of the treaty share, minus the treaty preterminal interceptions of South Sound coho; ii) at treaty share levels of South Sound coho between 230,000 and 350,000 fish, the harvest pool is 69,-000 fish, plus 57% of the amount above 230,000, less the treaty pret-erminal interceptions of South Sound coho; iii) at treaty share levels of South Sound coho above 350,000 fish, the harvest pool is 137,400, plus 30% of the amount above 350,000, less the treaty preterminal interceptions of South Sound coho. The Area 10 share of each tribe or tribal group will include any incidental coho interceptions of South Sound origin taken by that tribe in fisheries targeting on other species in Area 10 or Area 9, except that, in the event that no Area 10 share is provided for under this Paragraph 6.1.4, incidental coho interceptions will still be allowed as provided in Paragraph 6.1.4(a). A table illustrating the total projected Area 10 coho harvest under various South Sound Treaty shares, based on the modified MST Agreement, is appended to this Agreement. 6.1.5 The remainder of the treaty share of South Sound origin coho, after subtraction of preterminal interceptions and the Area 10 harvest, shall be allocated to the Puyallup, Nisqually, and Squaxin Island Tribes, and to the Suquamish and Muckle-shoot Tribes in their respective extreme terminal areas. It is' anticipated that the aggregate extreme terminal share of South Sound coho would range from 70% to 85% of the total South Sound Treaty allocation, depending on the size of that allocation. 6.1.6 Deep South Sound (Areas 11-13K) produces 74% of all South Sound coho (Areas 10-13K). This 74% shall be multiplied by the total South Sound treaty share to arrive at the deep South Sound origin portion of the treaty share. The Puyallup Tribe’s harvest shares of deep South Sound-origin coho in Area 11 will be as follows: a. When the treaty share of deep South Sound Coho is less than 59,-000: No directed coho fishery shall be conducted in Area 11 by the Puyallup Tribe. Incidental coho catches during Area 11 chum fisheries will be projected in-season; if *1236this projected catch is exceeded, this excess will be subtracted from subsequent Area 11 coho fisheries. There will be no payback to the Puyallup Tribe if the incidental catch during chum is less than projected. b. When the treaty share of deep South Sound Coho is between 59,-000 and 180,000: 5.0% of the portion of the treaty allocation between 59,000 and 180,000. If this amount is less than that projected for incidental catches during chum fisheries, then, for purposes of calculating Pay backs by the Puyallup Tribe, the share will be the projected incidental catch during chum fisheries; plus c. When the treaty share of deep South Sound Coho is between 180,-000 and 350,000: 6.0% of the portion of the treaty allocation between 180,000 and 350,000; plus d. When the treaty share of deep South Sound Coho is above 350,000: 3.6% of the portion of the treaty allocation above 350,000. 6.2 Paybacks. 6.2.1 The shares and levels identified in Section 6, above, for Area 10. shall be adjusted to reflect overages and underages in previous years, based on post-season estimates of catches and shares. When the total Area 10 harvest exceeds its post-season share, a payback shall be owed to the extreme terminal area in the amount of that excess. When the Area 10 harvest is less than its post-season share, a payback shall be owed to Area 10 by the extreme terminal areas in an amount equal to: i) the difference between that harvest and the post-season share, when that harvest exceeded the in-season share; or ii) the difference between the in-season share and the post-season share, when that harvest was less than the in-season share. No adjustments shall be made when the Area 10 harvest of a tribe or tribal group deviated less than 10% from its post-season share, except as provided in Paragraph 6.2.4 below. Overages by one tribal group shall not affect any other tribal group’s share in Area 10 in the year of occurrence. Such overages will reduce the extreme terminal fishery of the South Sound Tribes in the year of occurrence, with adjustments made to the extreme terminal shares from the Area 10 share of the tribal group(s) creating the overage in the next year in which a directed Area 10 harvest is allowed and each following such year until paid. When the projected or actual remaining harvest of the Area 10 fishing tribes is less than 10,000 coho, in the interests of conservative management, the uncaught harvest may be carried over until the next year that the Area 10 harvestable share exceeds 20,000. 6.2.2 No payback will be owed to Area 10 by the South Sound Tribes if the total post-season coho return to the Nisqually River, excluding returns to the hatchery, during the year of the Area 10 underage was less than 14,000 fish. When payback is owed to the Area 10 fishery by the South Sound Tribes, it will be added to the combined harvest shares of the Tribes, fishing in Area 10. When a payback is owed by the South Sound Tribes, it shall be repaid in the first succeeding year in which the in-season estimate of the Treaty share of South Sound origin coho exceeds 300,000 coho, and in each following such year, in an amount no greater than 15% of that *1237year’s treaty share of the party owing the adjustment, until paid, provided that the affected tribes may agree to a more rapid repayment schedule. 6.2.3 At the end of the term of this Agreement, any accumulated and outstanding deviations shall be repaid by those parties responsible for the deviation. The deviations will be repaid in the first year following the term of this Agreement in which directed coho fisheries are allowed. 6.3 Terminal Shares. It is a goal of this Intertribal Allocation Agreement to allocate at least 86% of the Treaty share of coho to the South Sound terminal areas. 7. INTERTRIBAL SHARING OF CHUM SALMON. 7.1 Puget Sound Chum Salmon Allocation. 7.1.1 Non-treaty harvest allocation. It is assumed that unless otherwise agreed among all affected parties, in any year, the non-treaty share of chum salmon shall be 50% of the har-vestable number of each race (summer, fall and winter) of chum salmon originating from each Puget Sound region, except the following aggregations shall be permitted: Hood Canal summer plus fall; and South Puget Sound summer plus fall plus winter. 7.1.2 Intertribal sharing intent. It is a goal of Intertribal Allocation to continue to allocate the great majority of the Treaty share of chum (including “non-local” interceptions) of each allocation unit to its respective terminal area fisheries. The measures shown below may be further adjusted as additional information affecting the feasibility of achieving this goal becomes available. 7.1.3All tribes will support proposals for stock-composition studies that can be used to quantify impacts to individual allocation units and help to shape fisheries to control such impacts. The current Strait of Juan de Fuca, San Juans, Area 10, Area 12, Area 8, and Area 8A GSI studies can be used as a starting point. 7.2Management for Intertribal Sharing. For the period controlled by this Agreement, the Parties shall control interceptions using the fishery — specific measures outlined below. Prior to the conclusion of this Agreement, the Parties shall evaluate the success of this Agreement by comparing the results achieved against the Parties’ intent, as outlined in this Agreement. This evaluation shall be used by the parties to formulate a longer-term sharing plan. For the duration of this Agreement, the following measures shall be in effect. 7.2.1 Area 8A (Port Gardner-Port Susan). Fisheries directed at fall chum salmon shall be managed to harvest Stillaguamish/Snohomish — origin fall chum salmon and stock composition work will be undertaken to monitor the by-catch of non-local fall chum. 7.2.2 Area 9 (Admiralty Inlet). No commercial fishery openings shall he authorized through the year 1999. However, during this period, the tribes who are otherwise allowed to fish in Area 9 (the Area 9 tribes), in consultation with affected tribes, may implement annual research (test and/or evaluation) fisheries in this area, in order to gather information to fulfill the following objectives: a. Obtain catch-per-effort and catchability information, necessary for the formulation of catch-predictive models for fall chum salmon in Area 9 fisheries. *1238b. Investigate the feasibility of development of databases for the purpose of improving the reliability of early in-season updated estimates of abundance of the fall chum salmon stocks contributing to Area 9 fisheries. c. Assess the fall chum stock composition at various portions of Area 9, as funding allows. 7.2.3 Any such research fisheries shall be pursuant to an annual.experimental design developed by a technical team, appointed by the Area 9 tribes. The technical team shall develop, in consultation with affected tribes, an annual experimental design of the research fishery in this area, in order to accomplish the above objectives. In late 1999 and early 2000, the technical team will provide to all affected tribes an analysis of the study results along with recommendations concerning any application of those results. 7.3 Area 10 (Edmonds to Vashon). Chum — directed fisheries shall not be. authorized during the summer or winter chum management periods. During the fall chum management period, fisheries may target on harvestable fall chum salmon of South Puget Sound origin, and stock composition work will continue to monitor the by-catch of non-local fall chum. 7.3.1 For the purpose of implementing this Agreement, the Area 10 shares identified in this Section shall be determined and managed in-season according to the best available information. The intertribal allocation accounting shall be base on the post-season audit of stock abundance, treaty catch, escapement, treaty and non-treaty as well as intertribal allocation shares, and determination of pay backs due to intertribal allocation imbalances. Non-landed mortal-ities (such as net dropout) shall be allocated to the fishery in which they occur. 7.3.2 The basis for harvest sharing in Area 10 shall be the MST Agreement as amended herein, provided that nothing in this Agreement prevents the parties to the MST Agreement from modifying that Agreement, if such modification does not effect the harvest shares of other parties to this Agreement. The harvest pool, as defined therein, shall be modified according to provisions of Paragraph 7.3.3of this Agreement. The common pool, shall be calculated as the harvest pool minus all equity harvest, and the total treaty harvest in Area 10 shall not exceed more than 20% of the common pool times the number of tribes with established fishing rights in Area 10, plus any equity harvest due. For purposes of this Agreement, tribal group shall refer to one or more of the following: Suquamish/Muckleshoot— Central Sound Region Group; Tulal-ip/Stillaguamish — Stillaguamish/Snohomish Region Group; Swi-nomish/Upper Skagit/Sauk Suiattle-Skagit Region Group (the Swinomish/Upper Skagit/Sauk Suiattle Region will only be treated as a tribal group if the Swinomish Tribe receives judicial confirmation of their usual and accustomed fishing right in Area 10 during the term of this Agreement). The equity harvest due any tribal group shall be reduced from that provided for in the MST Agreement according to the following formula. For each tribal group due equity from Area 10, a proportion shall be calculated as the number of Tribes per tribal group eligible for equity harvest in Area 10 divided by the total number of Tribes participating in the Area 10 common pool harvest. The original *1239equity harvest due to each tribal group will then be reduced by this proportion. For example, if Suquamish/Muckleshoot are due equity from the Area 10 harvest pool based on the original MST Agreement, that equity would be reduced by 2/3 (Suquamish/Muckleshoot due equity divided by Suquamisb/Muekleshoot/Tulalip as participants in the common pool harvest. If Tulalip is due equity, their equity would be reduced by 1/3). 7.3.3 The Treaty chum harvest objective for Area 10 shall be calculated so as not to exceed that authorized under the MST Agreement, as previously amended. Specifically, the harvest pool will be calculated as follows: a. at treaty share levels of South Sound summer plus fall chum between 0 and 57,000 fish, the harvest pool is 18% of the treaty share, minus treaty preterminal interceptions of South Sound chum; b. at treaty share levels of South Sound summer plus fall chum between 57,000 and 119,000 fish, the harvest pool is 10,260 fish, plus 52% of the amount above 57,000, less treaty preterminal interceptions of South Sound chum; c. at treaty share levels of South Sound summer plus fall chum above 119,000 fish, the harvest pool is 42,-500, plus 18% of the amount above 119,000, less treaty preterminal interceptions of South Sound chum. The Area 10 share of each tribe or tribal group will include any incidental chum interceptions of South Sound origin taken by that tribe in fisheries targeting on other species in Area 10 or Area 9. A table illustrating the total projected Area 10 chum harvest under various South Sound Treaty shares is appended to this Agreement. 7.4 South Sound Winter (Late) Chum. For the period covered by this Agreement, there will be no Treaty Indian preterminal fisheries directed at the South Sound origin winter (late) chum. Treaty fisheries conducted outside the winter chum management period shall be managed to minimize incidental impacts to South Sound winter (late) chum. The Parties agree that an annual harvest of up to 21,500 Nisqually River winter (late) chum salmon shall be reserved exclusively for treaty harvest in the extreme terminal area. As a result, up to 10,750 South Sound-origin summer-fall chum salmon shall be added to the non-treaty share in the following season. If, for any reason, the State seeks a share adjustment greater than 10,750 from the treaty share of the summer-fall chum as compensation for its under-harvested share of winter (late) chum (including catch by “recreational opportunity” fisheries) in the preceding season, such adjustments shall require the agreement of all affected parties. 8. TECHNICAL WORK. 8.1 General: 8.1.1 This Agreement prescribes the acquisition of technical information with which to address outstanding technical questions which could affect future sharing agreements. Over the period of this Agreement additional technical information will be gathered and assessed to provide a better basis for the negotiation of future allocation agreements. In determining priority tasks, data helpful or required to implement this Agreement should receive the greatest attention. The Parties agree to participate with other Tribes not parties to this Agreement in -a process to address the technical tasks described herein and to commit their good-faith efforts to those tasks. *12408.1.2 The definitions for “rebuilding” and “rebuilt” will have an influence on the sharing options available in the future. To the extent that these definitions are a matter of policy the technical tasks associated with them will depend on the definitions. 8.1.3 The informational needs in general appear to fall into similar groupings over all species, while the tasks required to acquire the information varies between species. In general the needed information includes but is not limited to three general areas: 1) Productivity of both natural and hatchery stocks, 2) distribution of each stock or group of stocks throughout all fisheries, 3) catch composition of each fishery by time and area. The tasks required for the accumulation of this information is described below for each species as well as other tasks of importance for that species alone. Other specific tasks as outlined in the Agreement will also be addressed. 8.2 Chinook: Many of the answers to questions surrounding chinook management will be tied to the definitions and decisions in other forums such as Pacific Salmon Commission and Pacific Fisheries Management Council. Tied to these decisions then will be the development of specific schedules for rebuilding of depressed stocks which may limit in the short term options for fully achieving allocation objectives. 8.2.1 Productivity — Assess current and alternative management and enhancement ■ strategies in order to project future levels of abundance. Review current escapement requirements for both natural and hatchery stocks to provide information on the current abundances and insight into the potential future productivity. 8.2.2 Stock distributions — Assess the CWT tagging and sampling programs and utilize information for cohort run reconstruction techniques to assess the distribution of historical catches. With this information, complete work on the chinook predictive model to assess future management options and sharing agreements. 8.2.3 Catch Composition-Utilizing CWT data assess the composition of catch in individual fisheries. Determine the extent to which time and area shaping may be feasible for individual stocks as a management tool in individual fisheries for both conservation and allocation needs. Evaluate for each fishery the feasibility and applicability of exploitation rate based management. 8.2.4 During the next five years, Ma-kah, Muckleshoot and Nisqually will undertake a joint technical review of the efficacy and necessity of the spring closure of the Strait troll fishery as a management measure to conserve spring-run chinook. 8.3 Sockeye: While no specific tasks have been identified for Fraser River Sockeye stocks it will be important to keep in mind that future Pacific Salmon Treaty Agreements may influence the relationships for sockeye sharing both in terms of intertribal and treaty/non-treaty. The depressed status of Puget Sound sockeye stocks (particularly Lake Washington) warrants the following technical tasks be accomplished. 8.3.1 Assess the feasibility of rebuilding and/or enhancing these stocks. This assessment should include an evaluation of the production, habitat, and harvest issues that may influence the success of any rebuilding attempts. *12418.3.2Support ongoing efforts to identify and correct pre-smolt mortality sources for Puget Sound stocks. 8.4 Coho: With the changing management environment surrounding particularly coho salmon there is a need to evaluate the current management goals and objectives to determine if they are still applicable for the future. 8.4.1 Productivity — The overall productivity of both natural and hatchery stocks needs to be assessed both in terms of current management as well as future situations. This will include an evaluation of escapement requirements and stock groupings. The beginning bases for this and other assessments will be the cohort run reconstruction using CWT data, the evaluation of the continued feasibility of primary and/or secondary management measures as they are currently being applied to coho, as well as the applicability of the current stock groupings is also needed. 8.4.2 Distribution — Based on the assessment of the CWT cohort reconstruction data determine the distribution of stocks throughout both domestic and international fisheries. Determine impacts on “non-local” stocks in all fisheries. 8.4.3 Composition — The composition of stocks in each fishery needs to be evaluated. This can be done using the cohort run reconstruction. Allowable exploitation rates in fisheries can then be assessed as well as evaluating the feasibility of shaping fisheries through time and area measures. The effects of managing for both hatchery and natural exploitation rates in each fishery on individual stocks needs to be assessed. 8.4.4 All of the above is dependent on the completion of the cohort run reconstruction. This will then allow for the update of predictive models used for the assessment of management actions. 8.5 Chum: While chum salmon do not presently appear to be facing the productivity problems of other salmon species, there is a definite need to be cognizant that all salmon species populations are cyclical and may in the future face problems. 8.5.1 Distribution — continue and expand current GSI studies to evaluate stock impact distinctions between summer, fall and winter chum stocks. This will provide a better data base for the reconstruction of the run reconstruction data base for chum. 8.5.2 Stock Composition — Evaluate the composition of stocks in each fishery both directed and incidental for the determination of impacts and shaping measures that may be available. This again will require the continuation of the GSI studies to identify stocks taken in each fishery. 8.5.3 Evaluate exploitation rates and provide analysis of appropriate levels for management options. Included will be options for adjusting these rates through fisheries. 8.5.4 The complete revision of the run reconstruction data base is a mandatory task in order to address the above issues as well as determine alternative options for the future. 8.5.5 The parties to this settlement Agreement shall support studies to determine differential distribution of coho stocks in Areas 7 and 7A during the latter portion of the coho management period, as well as the early portion of the fall chum management period, in order to gain information necessary for the protection of weak *1242stocks, and improve the accounting of preterminal interceptions. 9. CONSULTATION AND EXCHANGE OF MANAGEMENT INFORMATION. 9.1 Current Requirements. Both the Puget Sound Salmon Management Plan (“PSSMP”), Docket No. _ and prior orders of the Court, Docket Nos. _ provide that certain information shall be shared and that certain other information will be shared upon request. By this Agreement, each party provides notice of its desire to receive the information Identified in the PSSMP and above noted Court orders, including regulations issued with respect to any and all salmon, information regarding salmon enhancement activities and plans, and including notice of the availability of any and all research information concerning salmon species which could be harvested in the waters described below: a. any of the ocean areas adjacent to the land mass known as Washington; b. all parts of the Straits of Juan de Fuea; c. the waters known as Puget Sound, including the waters around the San Juan Islands; d. Lake Washington; and e. all rivers which have, do, or may deliver salmon into the above described waters. 10. PROCEDURAL LIMITATIONS. No party to this Agreement will file prior to April 1, 1999 a request for determination or equivalent pleading against any other Party to this Agreement seeking an intertribal allocation of salmon harvest or harvest opportunity. This restriction does not apply to proceedings initiated to enforce this Agreement or any other Agreement or order providing for an allocation of fish between or among tribes. 11. DISMISSAL WITHOUT PREJUDICE. The petitioners shall dismiss without prejudice the intertribal harvest allocation claims asserted by them in Subproceeding 86-5. The petitioners hereby covenant not to re-file or assert any such intertribal harvest allocation claims against the respondents before April 1, 1999. The respondents shall dismiss without prejudice any equitable allocation claims or counterclaims they may have asserted in Subpro-ceeding 86-5 against the petitioners and will not refile such claims prior to April 1, 1999. 12. NO THIRD-PARTY BENEFICIARIES. There are no third-party beneficiaries under this Agreement. The terms and allocations contained in this Agreement were bargained for solely by the Parties to this Agreement and are intended to benefit only the Parties. 13. EFFECTIVENESS OF AGREEMENT. This Agreement becomes effective upon the entry of an order by the Court in Subproceeding 86-5 approving this Agreement and dismissing without prejudice the claims and counterclaims of the Parties in accordance with Section 8 above. AGREEMENT April 23,1996 This Agreement is entered this 23rd day of April, 1996, by and between the Muckle-shoot Indian Tribe, the Nisqually Indian Tribe, and the Makah Indian Tribe (hereafter the “Parties”). *1243WHEREAS A. The Parties desire to settle for a term of years the harvest allocation claims between them in Subproceeding 86-5 of United States v. Washington, Civil No. 9213, United States District Court for the Western District of Washington. B. This Agreement represents a compromise of the Parties’ positions regarding the equities of allocation of harvestable treaty salmon in the case area of United States v. Washington. This Agreement is not intended to serve as a basis for establishing equitable allocation principles outside the context of this Agreement or for determining what might constitute an equitable allocation of harvestable treaty salmon among the Parties after the Agreement expires. C. The Parties enter this Agreement to avoid the risks and burdens of litigation, as well as to devote their resources to further investigation and research of conditions of the fisheries and the status of stocks of importance to all the Parties. The Parties, therefore, agree as follows: 1. Term of Agreement. A. Four Year Term. This Agreement applies to management of treaty salmon fisheries identified herein beginning at the end of the 1995/1996 troll fishing season in the Strait of Juan de Fuca and will continue through the end of the 1999/2000 troll fishing season in the Strait of Juan de Fuca. B. One Year Extension. If on or before April 1, 1999, the Parties have not agreed to a new allocation agreement addressing treaty fisheries in the Strait of Juan de Fuca, or to an extension of this Agreement, then the Agreement will remain effective through the end of the 2000/2001 troll fishing season in the Strait of Juan de Fuca. 2. Management and Allocation of Chi-nook Salmon in the Strait of Juan de Fuca. A. Limits on Harvest. (i) The Makah Tribe shall limit its total annual harvest by treaty troll and net fisheries in the Strait of Juan de Fuca so as not to exceed 82.5 percent of the 1986-1990 average exploitation rate on contributing Puget Sound stocks applied to the current year estimated abundance of those stocks. (ii) The current year abundance and average exploitation rates shall be determined by using the methodology applied under the 1994 and 1995 annual treaty fishing plans. Ceilings will be calculated for each of four time periods (January-April, May-June, July-October and November-December). Any overage or underage from the November-December time period shall be applied to ceilings calculated for the subsequent January-April time period. These ceilings do not apply to net fisheries in the Strait of Juan de Fuca that target on local stocks (Hoko Bay, Pysht Bay, Fresh Water Bay, Dungeness Bay, Crescent Bay, and Clallam Bay), provided that estimates of the impacts of these fisheries on non-local stocks are deemed acceptable by affected tribes. (iii) The Parties agree that the methodology for determining the current year abundance and average exploitation rate may be changed, but only with the consent of all the Parties to this Agreement. The Parties agree that the Ocean and Strait Chinook fisheries shall be linked to the extent provided in Section 1.6(h) of the document submitted to the Court in sub-proceeding 86-5 entitled “1996-1999 (2000) Management Plan for Puget Sound and Ocean Fisheries,” dated *1244August 10, 1995 (hereinafter “the August 10,1995 Plan”). B. Spring Chinook Opening in the Strait of Juan de Fuca. (i) The Makah Tribe will close the treaty troll fishery in Area 4B, 5, 6 and 6C during the spring chinook migration period (approximately April 15-June 15 in Areas 5, 6 and 6C and April 15-30 in Area 4B) subject to complementary actions taken by the State of Washington which result in protection for the stocks of concern equivalent to that provided by WDFW’s recreational and commercial 1990 regulations package, and by terminal area tribes in their respective fisheries, to limit impacts and enhance these stocks. (ii) During the next five years, the Parties will undertake a joint technical review of the efficacy and necessity of the spring closure of the Strait troll fishery as a management measure to conserve spring-run chinook. C. Post-Season Audits of Chinook. The Parties agree to sponsor the performance of post-season audits of Puget Sound chinook fisheries, provided such audits can be conducted by the tribes’ Technical Review Committee and NWIFC using intertribal allocation adult equivalents and provided further that funding for such audits is available. •The Parties agree that post-season chi-nook audits should be accorded a high priority among the technical and management projects assigned by the tribes to NWIFC. Absent further agreement of the Parties, the results of the postseason audits will not be used to alter the chinook ceilings provided for in this Agreement. 3.Harvest of Sockeye Salmon in the Strait of Juan de Fuca. The Parties will implement in good faith Section 2.5 of the August 10, 1995 Plan, pertaining to Lake Washington sockeye. 4. Harvest of Coho Salmon in the Strait of Juan de Fuca. A. No Directed Coho Fisheries. There will be no commercial net fisheries directed to coho salmon in the Strait of Juan de Fuca during the life of this Agreement. This requirement will be implemented through compliance by the Makah Tribe with Section 3.4.B of the August 10,1995 Plan. B. Management Measures Relating to Incidental Coho Fisheries. During the season, if it appears that actual coho catches will significantly exceed these preseason estimates, additional management measures shall be taken and/or constraints applied by the Makah Tribe to further reduce coho catches consistent with the primary intent of maintaining its opportunity to participate in the full harvest of other species. 5. Harvest of Chum Salmon in the Strait of Juan de Fuca and in Puget Sound. A. Strait Chum Fisheries. The Ma-kah Tribe will implement Sections 4.4, 4.5.A and .B, and 4.7 of the August 10, 1995 plan. B. Winter Chum. The Makah Tribe agrees not to conduct fisheries directed at chum salmon after the ending dates for fall chum fisheries as defined in the best available entry pattern information. The Makah Tribe further agrees to take all practicable measures to minimize identified incidental harvests of winter run chum during the fall chum management period. 6. Strait Tribes’ Harvest in the Ocean Treaty Fishery. The Ocean treaty fisheries of the Makah Tribe shall be managed in accordance with Sections 1.1 and 3.4(a) of the August 10,1995 plan. *12457. Consultation and Exchange of Management Information. In recognition of the Parties’ common interest in the wellbe-ing and rebuilding of stocks present in their fisheries, Muckleshoot and the Ma-kah Tribe agree to furnish one another with regulations, notices of openings and management meetings, and reports and studies relating to the stocks identified below, and to permit one another’s technical and policy representatives to participate in all meetings regarding plans for harvest management of the stocks listed below: Muckleshoot — all fisheries harvesting Green River chinook, coho or chum, White River chinook, Lake Washington sockeye or coho, and all Area 10 fisheries. Makah — Fisheries in the ocean or Strait of Juan de Fuca harvesting any of the following stocks: Hood Canal coho, Green River or White River chinook, Green River or Lake Washington coho, Lake Washington sockeye, Green River chum. 8. Intent to Integrate This Agreement With General Management Regimes. The Parties intend to integrate the provisions of this Agreement into other management regimes. The purpose of integrating this Agreement into such other regimes is to facilitate sound and effective management of the case-area treaty fishery. By agreeing to integrate the terms of this Agreement into other regimes, the Muckleshoot and Nisqually Tribes will not become bound by any other provisions of those regimes, including the August 10, 1995 Plan, to which they have not explicitly consented in this Agreement or otherwise in writing. 9. Covenant Not to Sue. The Muckle-shoot and Nisqually Tribes covenant not to initiate against the Makah Tribe before April 1, 1999, a new subproceeding or judicial action asserting any of the intertribal harvest allocation claims previously asserted in subproceeding 86-5. The foregoing covenant shall not have the effect of dismissing or prejudicing the claims or defenses of any Party against any tribe or other entity not a party to this Agreement. 10.Effectiveness of Agreement. This Agreement becomes effective upon the entry of an order by the Court in Subpro-ceeding - 86-5 approving this Agreement. This Agreement may be enforced by the Court pursuant to its continuing jurisdiction in United States v. Washington. ORDER ■ GRANTING MAKAH’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING OREGON’S CROSS MOTION FOR SUMMARY JUDGMENT AND WASHINGTON’S MOTION FOR STAY Subproceeding No. 96-2 (November 4, 1996) THIS MATTER comes before the court on plaintiff Makah Indian Tribe’s motion for partial summary judgment, defendant state of Oregon’s cross motion for summary judgment and defendant state of Washington’s motion for stay. Having reviewed the motions together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows: I. BACKGROUND This subproceeding stems from the promulgation by the Secretary of Commerce of a regulation authorizing a treaty fishery for Pacific whiting and roekfish in 1996 and further authorizing the participation of the Makah Indian Tribe in that fishery. Plaintiff Makah seeks a declaratory judgment that: (1) the promulgation of the regulation does not violate Paragraph G.l *1246of the Order for Program to Implement Interim Plan found in United States v. Washington, 459 F.Supp. 1020, 1037 (W.D.Wash.1978);1 and (2) the provisions of Paragraph G.l requiring a preliminary determination of treaty right entitlement to nonanadromous fish and shellfish are no longer applicable because the court has already determined that the tribes have such an entitlement. II. LEGAL ARGUMENT A. Makah Motion for Summary Judgment Makah now moves for summary judgment as to its contention that Paragraph G.l was not violated. Makah contends that Paragraph G.l only applies to state regulation of treaty tribe fisheries and does not bar a federal agency from voluntarily recognizing treaty fishing rights or a treaty tribe from exercising those rights pursuant to federal regulation. Second, Makah moves for summary judgment on the inapplicability of Paragraph G.l’s provision requiring a preliminary determination of treaty right entitlement to nonanadromous fish and shellfish on the grounds that this court has already made a final determination on that point. Makah points to Judge Rafeedie’s decision in 89-3, another subproceeding in this case. In that decision, Judge Rafeedie held that Makah’s and other treaty tribes’ treaty “right of taking fish” applies to all species of fish found in their respective adjudicated “usual and accustomed fishing grounds and stations,” whether or not those species were actually taken at treaty time. United States v. Washington, 873 F.Supp. 1422, 1430 (W.D.Wash.1994). Ma-kah argues that this decision is the law of the case unless and until it is reversed by the Ninth Circuit. Third, Makah asks for summary judgment on the counter-request by the states of Washington and Oregon for a determination that Makah has no treaty right to take Pacific whiting. Makah again contends that this issue has already been litigated before and decided by Judge Raf-eedie in Subproceeding 89-3. The United States supports and joins in Makah’s position. B. Washington’s and Oregon’s Responsive Motions In response, the state of Washington agrees that the Secretary of Commerce did not violate Paragraph G by adopting rules for treaty fishing. However, Washington insists that the Secretary acted contrary to law by not requiring Makah to present prima facie evidence that it fished for Pacific whiting at treaty time. Washington acknowledges Judge Rafeedie’s ruling in Subproceeding 89-3 that Makah’s and other treaty tribes’ treaty “right of taking fish” in their usual and accustomed grounds is not limited to species of fish taken at treaty time. But Washington contends that this ruling is in error and will be reversed by the Ninth Circuit, where it is now pending on appeal. Therefore, Washington asks this court to grant a stay of this case until the Ninth Circuit rules. *1247The state of Oregon joins Washington in contending that Judge Rafeedie’s decision was wrong. But rather than seeking a stay, Oregon moves for summary judgment on its counter-request for a determination that Makah is required to present prima facie evidence that it customarily harvested Pacific whiting at treaty time. Oregon contends that in order to exercise off-reservation treaty rights and obtain treaty-based allocations, Makah must make such a showing. Oregon urges this court to find that Judge Rafeedie’s ruling to the contrary was in error, should not be deemed the law of the case, and should not be followed. III. COURT’S RULING Having carefully reviewed all of the parties’ arguments, the court concludes that Judge Rafeedie’s ruling in Subpro-eeeding 89-3 should remain the binding law of the case until the Ninth Circuit decides the appeal of that decision now pending before it. In the alternative, Washington has moved to stay this case pending the Ninth Circuit decision. This motion is denied. Whereas Washington has not alleged any irreparable harm absent a stay, Makah and other tribes could suffer hardship if the resolution of this case is delayed. NOW, THEREFORE, it is ordered as follows: 1.The court GRANTS Makah’s motion for partial summary judgment that the Secretary of Commerce did not violate Paragraph G.l by promulgating a regulation authorizing a treaty fishery for Pacific whiting and rockfish in 1996 and providing for the participation of Makah in that fishery. 2. The court GRANTS Makah’s motion for partial summary judgment on the inapplicability of the provision of Paragraph G.l requiring a preliminary determination of Makah’s treaty right entitlement to fish for Pacific whiting and rockfish in its usual and accustomed fishing grounds in light of Judge Rafeedie’s ruling in Subproceeding 89-3, which constitutes the law of the case.2 3. The court GRANTS Makah’s motion for partial summary judgment on Washington’s and Oregon’s claims that Makah has no treaty right to take Pacific whiting. 4. The state of Oregon’s cross motion for summary judgment and the state of Washington’s motion for stay are DENIED. DECISION BY THE SPECIAL MASTER Subproceeding No. 89-3 (November 26, 1996) The Quileute Tribe opened its Dungeness Crab season from November 1, 1996, through October 31, 1997. The State did not object. The State proposed the following regulation for non-treaty fishers: The non-Indian fishery will be open from December 1, 1996, until September 15, 1997, 24 hours per day, except as described below: (1) the area bounded by the following coordinates will be open from January 1, 1997 (unless opening delayed by late *1248opening of the area described in paragraph (2), below), to September 15,1997: (a) north of an east-west line at 47°53'10"N (Quillayute Whistle Buoy); (b) south of an east-west line at 48°02'15"N; (c) east of a line delineating the Washington State territorial sea as depicted on NOAA Chart 18480 (Approaches the Strait of Juan de Fuca). (2) the area bounded by the following coordinates will close on December 31, 1996 or after a period of four weeks of non-Indian fishing, through March 31, 1997, then reopen from April 1, 1997 through September 15,1997: (a) south of an east-west line at 47°53'10"N (Quillayute Whistle Buoy); (b) north of an east-west line at 47°40'30"N(Destruction Island); (c) east of a line delineating the Washington State territorial sea as depicted on NOAA Chart 18480 (Approaches the Strait of Juan de Fuca). The Quileute Tribe objected asserting that the State should set a season for non-treaty fishers which delayed opening until January 1, 1997; that the season close after four weeks of fishing and reopen on April 1, 1997, remaining open until September 15, 1997. This would apply in an area from 48°07'36" North Latitude (Sand Point) to 47°31'42" North Latitude (Queets River) and seaward to approximately forty miles from shore. A hearing was held at Forks, Washington on November 15, 1996. The State of Washington was represented by Jay Geek and Matthew A. Love, Assistants Attorney General; the Quileute Tribe was represented by Ruth Kennedy, Lori Salzarulo and Leslie Barnhart; the Makah Tribe was represented by John Arum and the Quinault Nation was represented by Richard Reich. An Amicus Curiae brief was submitted on behalf of the Washington Dungeness Crab Fishermen’s Association expressing concern that this proceeding might result in recognition of the larger usual and accustomed fishing area claimed by the Qui-leute Tribe. A letter was submitted on behalf of the Hoh Tribe by its counsel, Richard S. Ralston who had been unavailable when the notice of hearing was received at his office. Mr. Ralston states that the Hoh Tribe is presently in litigation with the Quileute Tribe and the State on the issue of the usual and accustomed fishing grounds and stations and the north, south and western boundaries. That case is pending before Judge Barbara J. Roth-stein, Subproceeding 96-1. A copy of Mr. Ralston’s letter is attached as requested. The State’s proposed closure for non-treaty fishers recognized a lesser area to the north, south and west than the Qui-leute Tribe contended for as its usual and accustomed fishing ground. The Quileute Tribe contends that its treaty right to fish extends westerly forty miles while the State contends that the western boundary is three miles until an adjudication is made by the Court. DECISION The Special Master’s decision is as follows: The State of Washington will open its season for non-treaty Dungeness Crab fishing effective December 1, 1996 to September 15, 1997, EXCEPT THAT the area between 47°40'30" North Latitude (Destruction Island) and 48°02'15" North Latitude and East of a line delineating the Washington State Territorial sea as depicted on NOAA chart 18480 (approaches the Strait of Juan de Fuca) (the twenty-five *1249fathom line) will be opened on January 1, 1997, and closed on January 30,1997. The non-treaty season in this area shall then reopen on March 28, 1997, and remain open to the end of the season. The Area in Dispute While the Quileute Tribe concedes that there has not been a final adjudication of its “complete and entire usual and accustomed fishing grounds and stations” it argues that the United States has resolved its western boundary by regulations for allocating salmon and halibut and that this applies to crab as well because the usual and accustomed grounds cannot vary depending on species. However, the Tribe does not recognize the validity of those regulations insofar as they may relate to its northern and southern boundaries. The Quileute Tribe has asserted a treaty right to fish beyond the three mile limit since approximately 1989, and argues that the status quo should be maintained. However, this proceeding is about closing the non-treaty fishery. There is no status quo supporting the closing of the non-treaty fishery in the larger area claimed by the Tribe. The boundaries of the usual and accustomed fishing areas are before the Court in another proceeding. Even recognition of the federal regulation as controlling would constitute an adjudication of a question before the Court. For these reasons the closure of non-treaty crab fishing is limited to three miles (twenty-five fathom line), since this is an area which the State is apparently willing to recognize, until an adjudication is made by the Court. NON-TREATY CLOSURE IN THE USUAL AND ACCUSTOMED FISHING AREA The Quileute Tribe claims that the State’s regulation does not provide an equal opportunity to harvest its fifty percent share of the harvestable resource and will, unless modified, result in the non-treaty fishers far exceeding its fifty percent. Further, the Tribe contends that crab migrate over the fishing grounds and that the State should therefore be required to regulate the non-treaty fishers beyond three miles to permit the migrating crab to enter the area inside twenty-five fathoms. The Special Master finds that the closures of the non-treaty crab fishery should be limited to the area between 47°40'30" North Latitude and 48°02'15" North Latitude to the twenty-five fathom line for the reasons stated above. However, the Tribe’s requested time closures provide the better opportunity for the Tribe to catch its allotted fifty percent of the har-vestable crab for the following reasons. The crab do move across the bottom. However, the evidence is not persuasive on the question of whether this movement represents a true, predictable annual migration pattern or whether the crab movement is more random, perhaps following available food resources. Thus, attempting to draw a factual comparison between a crab “migration” and the migration pattern of salmon is not justifiable under the present evidence. The Implementation Plan provides that ... Where the sustainable harvest biomass cannot be calculated for a species or area, the harvestable amount to be shared shall be determined using the best fishery management information and practices that ensure conservation and maintain production of shellfish in the area harvested. 2.5a. Historically, there are no pre-season estimates of the crab which will be available for harvest and the extent of the harvest is not predictable from year to year. A sustainable harvest is maintained by limiting the catch in size (61/4 inch) and to taking *1250only male crab. Once the season opens the harvest proceeds under these restrictions until completed. There are no catch data for the area which the State proposes to regulate as the usual and accustomed fishing ground. This area lies within a much larger area, 59A, which is used for reporting fish landings. Further, even the reported landings area not necessarily complete because crab from area 5 9A are landed in Oregon and outside of the 59A area in Washington. Crab landed in La Push do not necessarily demonstrate the Tribal catch because non-treaty boats land there also. Neither is the intensity of fishing effort as predictable as one would like. However, it does appear that the Tribe has fewer and smaller boats than the non-treaty fishermen and, regardless of estimates as to the number of non-treaty boats which may fish the Tribal area, it appears that there is nothing to limit the number of non-treaty boats once the season opens. Therefore, the fishing effort in terms of the number and size of boats and capacity for setting crab pots is not equal. The Tribe opened its season November 1, 1996, giving it a one month exclusive fishing opportunity. However, the quality of the crab is not reliable in a fishery at this time of year. In the past the season has opened on December 1st or as soon thereafter as the crab shells have hardened when they are considered ready to be harvested. The evidence shows that the best crabbing opportunity is when the season first opens. The Tribe considers that December and January present the best opportunity for them. The opportunity to catch crab begins to decline in February. Whether this decline is caused by a rapid rate of catch by the non-treaty fishers as the Tribe contends, or a lessoned appetite, the onset of mating season or a combination of all of these factors is not important here. The evidence is that the crabbing opportunity does decrease after the early months. There appears to be agreement that last year’s season did not result in the Tribe’s obtaining fifty percent of the catch and it is noted that both parties recognize that a non-treaty closure enhances the opportunity for the Tribe to realize its share. A State’s witness testified that the Tribe would have to increase its number of boats and fish the entire season to catch its fifty percent share. The Quileute fishermen have previously changed to fishing for halibut and other fish at the end of March. The State has attempted to develop the fishery by managing the time and opportunity for fishing rather than by the utilizing the numbers and has reached several sharing agreements with some other tribes. In the absence of information as to the total harvest and the shares taken by the Tribe and non-Indians within the usual an accustomed area, the Tribe demonstrated from reported landings in areas 59A and 60, which encompass the much smaller area being discussed here, that the trend is for non-treaty fishers to take fifty percent of the harvest within four to six weeks of the season opening. If the Tribe’s objections to the regulations are sustained and its proposal for closures adopted, the non-treaty boats will have to fish outside the twenty-five fathom line where the fishing is more difficult or relocate to other areas. However, on reopening in April the non-treaty will be able to take the unharvested crab although the fishing is more difficult than in the first weeks. The Court’s Order RE: Implementation of the Shellfish Proviso the Court states, “It is clear that, under the Treaties as interpreted in the Boldt decision, the Tribes have the absolute right to take fifty *1251percent of the shellfish from natural beds in the Tribes’ usual and accustomed grounds and stations” and provided a framework for the implementation of the Tribe’s fishing rights. The following provisions are of assistance here. Each Tribe may take, from natural beds, up to fifty percent of the sustainable harvest biomass of any shellfish species within the usual and accustomed areas of the Tribe. The sharing shall be achieved by coordinating management plans. Such sharing shall be subject to the following provisions: 2J5 In sharing the opportunity for harvest of a shellfish resource, the State and Tribe may also consider the time of fishing, quality of the shellfish, ease of harvesting, and catch per unit effort for the shellfish involved to ensure that there is equal sharing of the harvest opportunity. 2.5f Where there is a shellfish harvest -without agreement, the State or affected Tribe(s) shall either comply with this section as needed, or contest the regulation as provided above. When a Tribe authorizes the harvest of shellfish without agreement, then the State shall reduce or adjust State regulated harvests as necessary to allow for the proposed tribal harvest. State regulated harvests shall not take a tribal share of shellfish as defined by the sharing principles, above. Tribal or State fisheries opened under this subsection shall not exceed the tribal or State share authorized by this Court and shall be adjusted by the Special Master, if necessary, to comply with and not exceed the tribal or State share. 4.9 Notwithstanding the absence of reliable information on actual shares harvested by the Tribe and non-treaty fishers, a situation admittedly exists in which the Tribe is not taking fifty percent of the harvest in the usual and accustomed fishing area and possibly will not take fifty percent even with the Tribe’s proposed closures, according to the evidence. Closure of usual and accustomed fishing areas to non-treaty fishers is a management tool which is recognized by the State and the Tribe and appears to be the only suggestion for allowing the Tribe to realize its fifty percent of the available harvest. It is noted that at the present time the Tribe fishes crab only until the end of March. Therefore, the Tribe will have a limited time to take its fifty percent share of the crab and also is limited in the number of boats and gear. These factor could change depending on the Tribe’s decision as to the management of its share of the resource. Under these circumstances, in which the Tribe is not taking and possibly cannot take its fifty percent share, it should be allowed to maximize the benefits from the fishing capacity which it has. The evidence is that non-treaty fishers have the capacity to take the crab not harvested by the Tribe. For these reasons, it is recommended that the Tribe’s objection to the proposed opening and closing by the State be sustained. Nothing in this proposed decision is intended to define the Quileute Tribe’s usual and accustomed fishing area nor any right of Hoh or any other tribe. The area of regulation is one which avoids the areas to the north and south which are presently before the Court and makes no resolution as to the western boundary of the usual and accustomed grounds. Finally, attention is directed to so much of the paragraph 4.9 of the Implementation Plan as provides that fisheries opened under that subsection shall not exceed the tribal or State share authorized by the Court and shall be adjusted by the Special *1252Master, if necessary, to comply with and not exceed the tribal or State share. . Petitioners’ motion to file an overlength brief in support of their motion to reopen the judgment is GRANTED. . Insofar as the tribes seek to conduct discovery about the existence of any ex parte communications which may have affected Judge Boldt’s decision making ability, the court finds that this request is untimely. A motion for relief from a final order for reasons of *1190misconduct by an adverse party must be filed within one year after the order was entered. Rule 60(b)(3). Moreover, the tribes have no evidence to support the premise that any such ex parte communications occurred. . The United States Supreme Court denied the tribes’ petition for certiorari. 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). . - The Northern Tribes (Makah, Lower Elwha S’Klallam, Jamestown S’Klallam, Port Gamble S'Klallam, Skokomish, Suquamish and Nooksack) and the Tulalip Tribes also object to Muckleshoot’s failure to follow the procedures outlined in Paragraph 25. They express no opinion on the merits of Muckle-shoot’s motion. . Based on the same reasoning, the court rejects Lummi's arguments in opposition to Muckleshoot’s motion on the grounds of res judicata, the law of the case doctrine and failure to appeal the original ruling. All of these arguments presuppose that Muckleshoot is challenging or in some way seeking to supplement the original ruling. Instead it is merely asking for clarification or explication of the meaning of Judge Boldt’s ruling. . Lummi attempts to argue that Judge Boldt really meant Puget Sound or Seattle when he referred to “the present environs of Seattle.” A review of the relevant language in his finding No. 46 together with the cited paragraphs of Dr. Lane’s report lends no support to Lum-mi’s theory. . Because the court is making a supplemental finding pursuant to a reservation of jurisdiction in the original order concerning an issue which was not originally addressed, and not correcting an error in a final judgment, Lum-mi’s discussion of Fed. R. Civ. 60(b) is entirely inapposite. . During the 1995 season, one Quileute fisher used 100 pots. At oral argument, counsel for the Quileute Tribe stated that several Quileute fishers intended to use a total of 335 pots in the 1996 season. . While there is general agreement on the need for an equitable intertribal allocation, the tribes do not necessarily concur on the factors to be considered, the weight to be given those factors if considered, or the standard for determining an appropriate allocation. The court need not reach these issues at this time. . The court notes that if the overall blackcod quota were divided equally among the four coastal tribes, the Quileute would be entitled to harvest no more than one-fourth of the total. By noting this, the court does not mean to suggest that this is necessarily the appropriate equitable allocation standard. The court is also aware that one of the four coastal tribes, the Hoh, does not participate in the blackcod fishery, although it hopes to enter the fishery soon. . There appears to be a factual dispute among the parties as to whether petitioners complied with the requirements of the Order Modifying Paragraph 25 of the Permanent Injunction for a conference on this issue before filing a request for determination. Given the underlying circumstances and current posture of this case, the court believes that nothing would be gained by dismissing this claim even if there was not strict compliance with Paragraph 25. Instead, the court has asked the parties to confer with each other about the best way to present the issue to the court for final determination. . 1989-1993 Mean Percent proportional impacts and reductions therefrom in the case of the South Sound fishery, shall be calculated separately for Areas 10 and 11. . Paragraph G.l states in relevant part: In order to be entitled to exercise off-reservation treaty fishing rights to nonanadro-mous fish and shellfish, any tribe party to this case shall, prior to any attempt to exercise such rights, present prima facie evidence and arguments supporting its claim to treaty entitlements to such nonanadro-mous fish and shellfish upon which the court may make a preliminary determination as to the tribe's entitlement to such species, pending final determination of tribal treaty-right entitlement to nonanadro-mous fish and shellfish; ... . At this time, however, the court declines to grant Makah's request for summary judgment on the issue of whether Paragraph G. 1 should be amended to eliminate entirely the requirement for a preliminary determination of treaty-right entitlement to nonanadromous fish and shellfish on the grounds that it is no longer applicable under any circumstances. Resolution of this issue should await the outcome of the pending Ninth circuit appeal.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217581/

ROGERS, Circuit Judge. Petitioner Eric Logan appeals the district court’s partial denial of his 28 U.S.C. § 2241 petition, in which he seeks sentencing credit for time he spent in the hospital. Finding no merit to his claims, we will affirm. On March 18, 1991, Logan and an accomplice robbed a bank in San Diego. The police accosted them and a high-speed car chase ensued, ending when the robbers’ car flipped over. Logan, seriously injured, was taken to a hospital where-according to him-he was kept under guard in the “prisoner ward,” with his leg chained to the bed. He was released to the court 74 days later, at which time he was arraigned on bank robbery charges. Logan served the first part of his prison sentence in California, and while there he filed a § 2241 petition, seeking to receive sentencing credit for the time he had spent in the hospital. This claim was unsuccessful. See Logan v. Benov, 202 F.3d 278, 1999 WL 1054666, 1999 U.S.App. LEXIS 30562 (9th Cir. Nov. 15,1999). Logan was later moved to Michigan, and from there he filed his present § 2241 petition, again seeking credit for the time he had spent in the hospital. He argued that he was entitled to such credit because he had been in “custody” for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court found that Logan had adequately shown that he was in “custody” for only one of the days, and it granted him credit for that day. When the identical question was before the Ninth Circuit, that court relied upon Reno v. Koray, 515 U.S. 50, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995), to rule against petitioner. 1999 U.S.App. LEXIS 30562, at *2. Under Koray, a federal prisoner is entitled to sentencing credit only for time spent under control of the Bureau of Prisons or the Attorney General pursuant to a court detention order. See 515 U.S. at 56. Applying Koray, the Ninth Circuit held that Logan’s claim failed because he was not under the control of the Bureau of Prisons or the Attorney General during his hospitalization. See 1999 U.S.App. LEXIS 30562, at *2. It is not clear that Logan’s petition is properly before us. See 28 U.S.C. § 2244(a). The district court below, however, noted that the government did not object to the petition on the ground that it was precluded by statutory limits on successive habeas petitions. In any event, because we agree on the merits with the Ninth Circuit’s application of Koray to re*238solve petitioner’s claim, we AFFIRM the judgment of the district court in this case. Though the district court apparently erred by granting one day of credit, since the Warden does not cross-appeal the court’s grant of credit, we leave that part of the court’s holding undisturbed.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217582/

ORDER Charles Keith Moody appeals his judgment of conviction and sentence. The case has been referred to this panel pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. We unanimously agree that oral argument is not needed. Fed. R.App. P. 34(a). Moody pleaded guilty to a charge of conspiracy to possess with the intent to distribute 50 grams or more of crack cocaine, a violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(l)(A)(iii). He was sentenced to 132 months of imprisonment to be followed by 5 years of supervised release. In this timely appeal, Moody’s appointed counsel has filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Moody was notified of counsel’s motion to withdraw, but he has not responded. We will grant the motion to withdraw. The Anders brief submitted by counsel reflects that counsel has reviewed the entire record and proceedings. Independent review of the record shows that counsel accurately submits that this case presents no colorable issue for appeal. The district court properly accepted Moody’s valid guilty plea. A plea of guilty is valid if entered knowingly, voluntarily, and intelligently; its validity is determined under the totality of the circumstances. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The Constitution requires that such circumstances reflect that the defendant be informed of all the direct consequences of his plea. Brady, 397 U.S. at 755. The district court assured that Moody understood the constitutional rights he was waiving, the statutory maximum sentence he faced, and the applicability of the Sen*239tencing Guidelines. The district court explained that no specific sentence was guaranteed by the plea agreement. Fed. R.Crim.P. 11(c)(1), (c)(3). Finally, the court painstakingly established that there was a factual basis for Moody’s plea. The district court also properly sentenced Moody. Moody qualified as a career offender and was facing a guideline sentencing range of 202-to-327 months of imprisonment. Nevertheless, the sentencing judge departed downward, pursuant to USSG § 4A1.3 and § 5K2.0, by four points because Moody’s criminal history overstated the likelihood that he would commit further crimes. On the government’s § 5K1.1 motion, the court reduced the offense level an additional three points. Finally, the court granted Moody the maximum three-point reduction, under § 3E1.1, for acceptance of responsibility. These reductions lowered the range of sentencing to 130-to-162 months of imprisonment, and the court ultimately imposed a sentence of 132 months of incarceration. Lastly, we have reviewed the record, and we conclude that no other nonfrivolous issue exists. Accordingly, we GRANT counsel’s motion to withdraw and AFFIRM the district court’s judgment of conviction and sentence. Rule 34(j)(2)(C), Rules of the Sixth Circuit.

01-04-2023

07-25-2022