text:
Mr. Priz has also served as a consultant to insurers Lloyds of London, Zurich American Insurance, Zenith Insurance, Liberty Mutual Insurance, Dakota Truck Underwriters, Diamond Insurance Company, FCCI Insurance, 7710 Insurance, and Great American Insurance on issues involving Workers Compensation insurance coverage, premium computation, underwriting, classifications, experience modifiers, and premium audits.
Workers Compensation: A Field Guide for Employers, published by CreateSpace Publishing in 2010.
Chapter 22 of the Illinois Workers Compensation Manual, published by the Illinois State Chamber of Commerce in 2008.
The Ultimate Guide to Workers' Compensation Insurance, published in 2005 by Entrepreneur Press.
CompControl, published in 1995 by Oasis Press, with a revised edition published in 2001.
“Report on a Study of Small Employers and the South Carolina Second Injury Fund’s Impact on Workers’ Compensation Insurance Premiums” commissioned by the South Carolina Small Business Chamber of Commerce.
The Midwest Society of Professional Consultants Caterpillar, Inc.
Department of Insurance, The Alaska Department of Commerce-Division of Insurance, and the Nebraska Department of Insurance, and before the Ohio Bureau of Workers Compensation.
Commerce and Industry Insurance Company v. Staffing Advantage, Inc. United States District Court for the Eastern District of North Carolina Southern Division, Civil Action No. 7:L17-cv-165-FL. Retained by Defendant Staffing Advantage LLC. Provided deposition testimony regarding Workers Compensation insurance audits, classifications, and experience modification factors.
Pennsylvania Manufacturers’ Association Insurance Company v. Promise Healthcare, Inc. United States District Court for the Southern District of Florida, Case No. 9:17-cv-80906. Retained by Defendant Promise Healthcare. Provided Preliminary Report of Opinions and deposition testimony regarding Workers Compensation insurance and Retrospective Rating, Workers Compensation premium computation and audited premium charges.
LM Insurance Corporation and Liberty Mutual Insurance Corporation v. All-Ply Roofing Co., Inc. United States District Court, District of New Jersey, Civil Action No. 2:14-cv-04723-JMV-MF. Retained by Defendant All-Ply Roofing Co., Inc. Provided written report of opinions, rebuttal report, and deposition testimony regarding proper Workers Compensation insurance classifications, audited premiums, remuneration, experience modifiers, and insurance producer professional duties.
Samantha Martin’s Amazing Animals v. Amcomp Insurance, hearing at the Illinois Department of Insurance. Retained by policyholder Samantha Martin. Provided sworn testimony regarding proper Workers Compensation classification codes.
Company and Zurich North America Insurance and Zurich American Insurance Company, U.S. District Court, Southern District of Illinois No. 3:14-cv-1095MJR-WCW. Retained by Defendant Zurich American Insurance Company. Provided written report of opinions and deposition testimony regarding Workers Compensation insurance for owner/operators in the trucking industry.
Superior Court of New Jersey Law Division: Bergen County. Retained by Defendant S.E. LLC. Provided written report of opinions and deposition testimony regarding Workers Compensation insurance audits, premiums, and classifications in New Jersey.
Insurance Company, Case No 2012 L 2213, filed in Circuit Court of Cook County, Illinois. Retained by Defendant FCCI Insurance Company. Provided written report of opinions, deposition testimony, and testimony at trial regarding the use of Schedule Rating and experience modification factors in computing Workers Compensation insurance premiums in Illinois.
Travelers Casualty And Surety Company f/k/a Aetna Casualty And Surety Company, and Potomac Insurance Company of Illinois v. Kirby Madden, David Odom, Thomas Appleton, Jerry Ross, Paul Roberts and Labor Specialists, Inc., v. Travelers Casualty And Surety Company, d/b/a Travelers Insurance Company, Case No. 98 L 138 In The Circuit Court For The First Judicial Circuit Jackson County, Murphysboro, Illinois. Retained by Defendant Labor Specialists, Inc. Provided written report of opinions and deposition testimony regarding Workers Compensation insurance premiums.
In Re: Stone & Webster, Incorporated, et al., Bankr. No. 00-2142 In the United States Bankruptcy Court For The District of Delaware. Retained by Stone & Webster. Provided report of opinions and deposition testimony regarding Workers Compensation insurance premium calculation and the use of separate agreements that purport to change the terms of the policies.
Ensign United States Drilling Inc. and Ensign United States Drilling (California) Inc. v. Weatherford U.S. Limited Partnership, filed in United States District Court for the District of Colorado, Civil Action No. 13-cv-00724-LTB. Retained by Defendant Weatherford. Provided report of opinions and deposition testimony regarding Large Deductible Workers Compensation insurance pricing and experience modification factors.
Command Center, Inc. v. AdvantEdge Insurance Group, et al, Case Number: 2010-CV-4135, filed in District Court, El Paso County, State of Colorado. Retained by Defendants AdvantEdge Insurance, et al, provided trial testimony regarding insurance broker standards of care and Workers Compensation insurance marketing and pricing of Large Deductible policies.
FallCreek Condominium Owners’ Association, Inc. v. Auto-Owners Insurance Company and Charlie Lemoine, Case No. 10AF-CC00168, filed in the Circuit Court of Taney County, Missouri. Retained by Plaintiff Fall Creek. Provided written report of opinions and deposition testimony regarding duty of care owed by an insurance broker in procuring flood insurance.
P.J.R, & Associates, Inc. v. Aetna Casualty & Surety Co. of Illinois and Travelers Casualty and Surety Co. of Illinois, Aetna Casualty & Surety Co. of Illinois and Travelers Casualty and Surety Co. of Illinois v. Pete Reiman Case No. 2001-MR84, filed in Circuit Court of the 20th Judicial Circuit Randolph County, Illinois. Retained by Plaintiff P.J.R. & Associates, provided written report of opinions and deposition testimony regarding Workers Compensation audited premiums.

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Justia › US Law › Case Law › Federal Courts › Courts of Appeals › Seventh Circuit › 2017 › Conrad v. Boiron, Inc.
Boiron makes homeopathic products, including an over‐the‐counter remedy called Oscillo that retails for between $12 and $20. Oscillo is made by mixing one percent Anas Barbariae Hepatis et Cordis Extractum (duck hearts and livers) with 99 percent water, repeating the dilution process 200 times, and then selling the result in pill form. The repeated dilutions render the finished product nothing more than a placebo. Boiron’s claim that Oscillo has a therapeutic effect on flu symptoms is “highly doubtful.” Conrad filed a class action against Boiron for deceptive marketing. About a year later Boiron offered Conrad $5,025, more than he could hope to win at trial. Conrad did not accept the money because it would moot his claim. The district court refused to certify Conrad’s proposed class and found his individual claim moot. The Seventh Circuit remanded; an unaccepted offer cannot moot a case. There are other measures available to address the problem (if it exists here) of “unreasonably and vexatiously” persisting in litigation, such as 28 U.S.C. 1927, but the district court did not decide whether they should be used.
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 3656 CHAD CONRAD, Plaintiff Appellant, v. BOIRON, INC., and BOIRON USA, INC., Defendants Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 7903 — William T. Hart, Judge. ____________________ ARGUED APRIL 4, 2017 — DECIDED AUGUST 24, 2017 ____________________ Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges. WOOD, Chief Judge. Chad Conrad filed a class action against Boiron for deceptive marketing, but he was left with only his individual claim after the district court refused to cer tify his proposed class. About a year later Boiron offered Con rad $5,025, more than he could hope to win at trial. Conrad does not want to accept the money because it will moot his claim; Boiron wants to force him to take it for the same reason. 2 No. 16 3656 The district court refused to certify Conrad’s proposed class and found his individual claim moot. We conclude, in keep ing with our decision in Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017), that the latter decision was in er ror, because an unaccepted offer cannot moot a case. There are other measures available to address the problem (if it exists here) of “unreasonably and vexatiously” persisting in litiga tion, see, e.g., 28 U.S.C. § 1927, but the district court has yet to decide whether they should be used. We therefore remand this case to the district court for further proceedings. I Boiron makes homeopathic products, including an over the counter remedy called Oscillococcinum (“Oscillo”) that retails for between $12 and $20, depending on whether one buys a six, twelve, or thirty dose package. Bohn v. Boiron, Inc., 2013 WL 3975126, at *1 (N.D. Ill. Aug. 1, 2013). Oscillo is made by mixing one percent Anas Barbariae Hepatis et Cordis Extractum—that is, duck hearts and livers—with 99 percent water, repeating the dilution process 200 times, and then selling the result in pill form. The repeated dilutions render the finished product nothing more than a placebo. Boiron’s claim that Oscillo has a therapeutic effect on flu symptoms is thus highly doubtful. Aggrieved customers caught on at some point, and in 2011 they filed a class action against the company in the Southern District of California over its deceptive marketing. In October 2012, Boiron and the class agreed to a broad settlement that covered over 200 of the company’s products (including Oscillo) purchased between January 1, 2000 and July 27, 2012. Gallucci v. Boiron, Inc., 2012 WL 5359485 (S.D. Cal. Oct. 31, 2012), aff’d sub nom. Gallucci v. Gonzales, 603 F. App’x 533 (9th Cir. 2015). In No. 16 3656 3 relevant part, the settlement required Boiron to (1) pay refunds to past buyers, (2) revise its labels to make them accurate, and (3) let future unhappy customers request refunds within 14 days of purchase (the company calls this the “Boiron Promise”). Boiron went one step further; it now informs customers that they have 30 days from purchase to request a refund. See Boiron Promise, BOIRON, http://www.boironusa.com/promise/ (last visited Aug. 22, 2017) (“Boiron Promise Webpage”). Some of the class members were not satisfied with this outcome, and so they opted out of the Gallucci settlement. Attorneys representing the opt outs filed new class actions, raising essentially the same claims against Boiron, in California and Illinois. When the district courts found the class representatives inadequate, counsel tried to swap in replacements. In the Illinois case, the prospective representative was the current plaintiff, Chad Conrad. (Boiron eventually prevailed in the California case, and so it does not concern us further.) Yet before the Illinois substitution could occur, the then lead plaintiff accepted Boiron’s offer of judgment, prompting the district court to terminate the case. Boiron also offered Conrad $25 (more than he had paid for the Oscillo) plus attorney’s fees and costs to settle his claim, but he rejected the offer and filed the complaint that kicked off the current suit on November 4, 2013. Eight months of preliminary proceedings followed, at which point the district court stayed the case pending the Ninth Circuit’s resolution of the appeal of the October 2012 settlement. That court ultimately upheld the settlement, and the district court lifted its stay on August 13, 2015. 4 No. 16 3656 Two weeks later, Boiron filed a motion to dismiss, which for the most part the district court granted. The court found that Conrad was an inadequate class representative because his suit would provide little benefit beyond Boiron’s existing refund guarantee; it also found that Conrad lacked standing to pursue injunctive relief (a ban on marketing Oscillo as a flu remedy) under the Illinois Consumer Fraud Act since Conrad himself would not be duped by Boiron’s misleading claims again. We denied Conrad’s request to appeal the denial of class certification in February 2016, leaving him with only his individual damages claim. After still more proceedings, the district judge granted Boiron’s motion under Federal Rule of Civil Procedure 67 to deposit $5,025 with the court—above the maximum Conrad could recover—in order to moot his claim. Boiron deposited the funds, and the district court dis missed the case as moot on September 20, 2016. This appeal followed. II Conrad’s main arguments are straightforward: he attacks both the court’s refusal to certify the class and its rejection of his individual claim based on Boiron’s use of Rule 67 to try to moot the case. We review the denial of class certification for abuse of discretion, and we consider the mootness ruling de novo. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012); Stevens v. Hous. Auth. of S. Bend, Ind., 663 F.3d 300, 306 (7th Cir. 2011). A We begin with Conrad’s effort to represent what remains of the class of Oscillo purchasers after the Gallucci settlement. No. 16 3656 5 Federal Rule of Civil Procedure 23(a) conditions class certifi cation on “four requirements—numerosity, commonality, typicality, and adequate representation.” Wal Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). This case turns on adequacy, for an aspiring lead plaintiff such as Conrad is entitled to rep resent a class only if he “will fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). In order to be an adequate representative, the named plaintiff must “be part of the class and possess the same interest and suffer the same injury as the class members.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625–26 (1997) (internal quotation marks and ci tation omitted). In addition, the court must be satisfied that the plaintiff will keep the interests of the entire class at the forefront. Conrad’s case brings to mind our comment in In re Aqua Dots Products Liability Litigation, 654 F.3d 748, 752 (7th Cir. 2011) (“Aqua Dots”), that “[a] representative who proposes that high transaction costs (notice and attorneys’ fees) be incurred at the class members’ expense to obtain a re fund that already is on offer is not adequately protecting the class members’ interests.” In Aqua Dots, the manufacturer of the eponymous toys re called them because they were potentially toxic. The recall no tice told buyers that they could exchange the Aqua Dots for a non defective replacement or a different, comparably priced toy. Notably, it did not mention any refunds, though they were provided upon request. A group of buyers challenged the recall program through a class action, alleging that the re lief the company offered was inadequate. The district court refused to certify the class, and we affirmed because the pu tative class representative failed to satisfy Rule 23(a)(4)’s ade quacy requirement. 6 No. 16 3656 Aqua Dots demonstrates that there is more to adequacy than simple membership in a group. As we said in Eubank v. Pella Corp., 753 F.3d 718, 719 (7th Cir. 2014), the “named [class] plaintiffs are the representatives of the class—fiduciaries of its members … .” It is thus both necessary and proper for the dis trict court to consider whether the potential named repre sentative will act in the best interests of the unnamed mem bers of the class. That was precisely our point in Aqua Dots. There, the product in question cost from $17 to $30. In re Aqua Dots Prod. Liab. Litig., 270 F.R.D. 377, 379 (N.D. Ill. 2010). Given the low price point, we were concerned that transaction costs might swallow all of any potential recovery. The same point applies here. Oscillo retails for between $12 and $20. Most Os cillo buyers are protected not only by the Gallucci settlement, but also by the refund process Boiron now offers on its web site (which is not limited to those who participated in the set tlement). There is another important similarity between our case and Aqua Dots—both proposed classes are relatively small. The class Conrad envisions is limited to relatively recent pur chasers who have not taken advantage of the Boiron Promise. The combination of low value claims and small class size is likely to make this another case in which “high transaction costs (notice and attorneys’ fees)” will leave class members with a negligible award. Aqua Dots, 654 F.3d at 752. Indeed, it is hard to see how the proposed class action benefits anyone but the attorneys who filed it, especially since this suit (to say nothing of its failed predecessor) has been rumbling on for years. Class actions driven by attorneys’ fees are notoriously troublesome. No. 16 3656 7 Conrad responds that the Aqua Dots recall was more gen erous than the “Boiron Promise,” and so there is more poten tial in the class wide treatment he proposes. We agree with him that the Boiron Promise is poorly publicized and hard to use when compared to the Aqua Dots recall. Boiron does not mention the refund on Oscillo’s packaging nor does it display information about the refund prominently on its website. To the contrary, finding any information at all takes some dig ging. See Boiron Promise Webpage. And, astonishingly, Boiron requires that refunds be sent by “snail mail” rather than digitally. Color us unimpressed with this transparent at tempt to put off dissatisfied customers. Boiron is happy to take Oscillo buyers’ money online, and so we see no reason why it cannot handle refunds the same way. See Oscillo, BOIRON, https://shop.boironusa.com/medicine/oscillococ cinum/ (last visited Aug. 22, 2017) (allowing online purchase of Oscillo). More broadly, as digital commerce becomes ever more embedded into American society, Boiron’s pretense that recalls and refunds (but not purchases) require resort to phys ical mail is hard to take seriously. Nonetheless, taken as a whole, the Boiron Promise is com parable to the process we accepted in Aqua Dots. Boiron’s re fund publicity, lackluster though it is, looks better when we consider that the Aqua Dots recall did not even mention a re fund. There, customers had to decide on their own to ask for one. The contrast between the two default positions is im portant—the typical Boiron Promise user receives a refund; the typical Aqua Dots buyer got a replacement product or a comparable toy. Compare Aqua Dots, 654 F.3d at 750 with Boiron Promise Webpage. All of this is to say that the reme 8 No. 16 3656 dies already in place for disappointed Boiron customers un dermine Conrad’s ability to show that he can bring any signif icant extra value to the absentee class members. Conrad argues that, as a factual matter, discovery would reveal that the Boiron Promise is empty, and that aggrieved purchasers are not obtaining any relief. But there was enough information in the record to permit the district court to spot the similarities with Aqua Dots and to conclude that this case is not suitable for class treatment. It is hard to see how more discovery would change things. In one incarnation or another, this case has dragged on since 2013; it is a de facto continuation of the preceding 2011 suit, which was itself an outgrowth of the underlying California class action. The evidence is out there for all to see, and Conrad has given us no reason to think that there are any smoking guns left to uncover. His own ac tions reinforce this conclusion: he took no steps to pursue dis covery between his 2013 motion for class certification and his last ditch effort to avoid dismissal in 2016. We conclude, therefore, that the district court was well within its rights to refuse to certify Conrad’s proposed class. In so ruling, we stress that we place no significance on Boiron’s later effort to render Conrad’s individual case moot by buying him off with a Rule 67 deposit into the court’s registry. The denial of class certification stands on its own. B That leaves Conrad’s individual case, which does turn on the effect of Boiron’s payment of $5,025 into the court’s registry, pursuant to Federal Rule of Civil Procedure 67. In Fulton Dental, we addressed the question whether a defendant’s act of depositing with the court an amount that (if accepted) would fully satisfy a plaintiff’s claim, rendered the No. 16 3656 9 plaintiff’s case moot. After a review of the Supreme Court’s decision in Campbell Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), as well as a careful look at the mechanics of Rule 67, we concluded that the answer was no. 860 F.3d at 545–46. See also Chapman v. First Index, Inc., 796 F.3d 783, 786–87 (7th Cir. 2015). Our reasoning in Fulton Dental, following that of the Supreme Court in Campbell Ewald, was based on the law of contract. As the Court put it, “an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case.” 136 S. Ct. at 672. We explained in Fulton Dental why a Rule 67 offer for this purpose is equivalent to the Rule 68 offer that was involved in Campbell Ewald. The court cannot accept an instrument made payable to a third party into its registry; checks are normally drawn to the clerk of the court and release is by order of the court. This fact prompted our statement in Fulton Dental that the process of depositing funds with the court and later withdrawing them in favor of a party is not a mechanical one. 860 F.3d at 545. Boiron would like us to hold that at some point, a plain tiff’s stubborn refusal to accept a generous settlement offer should be taken as the legal equivalent of acceptance. But we are aware of no such doctrine, and we are loathe to adopt such an ill defined rule. The Supreme Court has never endorsed anything like this. To the contrary, it has recognized “the deep rooted historic tradition that everyone should have his own day in court.” Taylor v. Sturgell, 553 U.S. 880, 892–93 (2008) (internal quotation marks omitted). That does not mean that every person will use that day in court in a way that is economically rational, and some will invoke the aid of the courts for impermissible purposes. But so called negative value cases are sometimes rational, if the party hopes to es tablish an important principle through the case. That said, 10 No. 16 3656 there is no guarantee that litigation will not be abused. Cf. Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993) (setting out the contours of the “sham” liti gation doctrine for antitrust purposes). The law has developed doctrines, such as the common law tort of wrongful civil proceedings (related to the mali cious prosecution tort that arises from criminal proceedings), to address abusive litigation. And free standing claims are not the only option. Federal courts have an array of tools to ad dress these problems. Prominent among them is 28 U.S.C. § 1927, which authorizes the court to sanction against “[a]ny attorney … who so multiplies the proceedings in any case un reasonably and vexatiously … .” Rule 11 of the Federal Rules of Civil Procedure also serves as a constraint on a lawyer’s ability to file a case that is not appropriately founded. If a case is based on diversity of citizenship, whether under the con ventional rules of 28 U.S.C. § 1332(a) or (as here) the Class Ac tion Fairness Act, 28 U.S.C. § 1332(d), if the plaintiff prevails but is awarded less than $75,000, “the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.” 28 U.S.C. § 1332(b). If the defendant, rather than us ing the Rule 67 process that Boiron tried, uses the rule best suited for pre trial offers of settlement—Rule 68—and that of fer is not accepted, then “[i]f the judgment that the offeree fi nally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” FED. R. CIV. P. 68(d). Finally, the courts have inherent power to punish abuses of process. Chambers v. NASCO, Inc., 501 U.S. 32 (1991). We are not saying, at this juncture, that any of these measures is appropriate for Conrad’s case. The point is only that tools exist for the person who abuses the litigation No. 16 3656 11 process, but the tools do not include deemed acceptance of a proposed offer of settlement. Before concluding, we should say a word about the district court’s conclusion that Conrad does not have standing to re quest injunctive relief under the Illinois Consumer Fraud Act (ICFA). See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (plaintiff “bears the burden of showing that he has standing for each type of relief sought”). The court reasoned that Conrad, as an individual, knows about Boiron’s refund program and that he is fully aware of the fact that Oscillo is nothing but sugar water. No injunction could therefore re dress any potential injury for him, and that lack of redressa bility defeats standing. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). We agree with that ruling. This is not a case like Laurens v. Volvo Cars of N. Am., LLC, No. 16 3829 (7th Cir. Aug. 22, 2017), where class treatment was still a possibility and the record did not unequivocally foreclose the possibility of injunctive relief for the putative named plaintiff. In the pre sent case, there will be no class, given our affirmance of the district court’s decision denying certification. If Conrad has a claim at all, it is an individual one for money only. III The district court did not abuse its discretion in denying class certification, and it correctly rejected Conrad’s individ ual claim for injunctive relief. It erred, however, insofar as it concluded that the passage of time meant that Conrad no longer had the legal right to reject Boiron’s offer of settlement. We therefore AFFIRM in part and REMAND for further proceed ings consistent with this opinion. Each party will bear its own costs on appeal.
The existence of an unaccepted offer, before class certification, of more than plaintiff could win at trial did not moot the case.


For tax years beginning after December 31, 2017, all partnerships are subject to the new centralized partnership audit regime, which generally provides for the assessment and collection of unpaid taxes at the partnership level. IRC § 6221(b) allows partnerships to make an annual election out of the new audit regime (subjecting the partnership to the Code’s partner-level deficiency procedures) if: (1) the partnership has 100 or fewer partners, (2) all of the partners are eligible partners, and (3) the partnership follows the required procedure for making the election. The final regulations address these substantive and procedural requirements for making the IRC § 6221(b) election.
Under the final regulations, a partnership has 100 or fewer partners when the partnership is required to furnish 100 or fewer statements under IRC § 6031(b) for the taxable year. Treas. Reg. § 301.6221(b)-1(b)(2)(i). In other words, the number of partners is determined by the number of Schedule K-1s the partnership is required to issue for the partnership taxable year. Note that under IRC § 6031(b) rules, the partnership may be required to issue multiple statements for the “same” partnership interest for the taxable year – for example, if a partner sells his partnership interest to a third party during the taxable year, under IRC § 6031(b), the partnership is required to issue two statements for the taxable year, one to the original partner and one to the new partner. Each statement is counted as a “partner” for purposes of the 100 or fewer partner determination. For partnerships with S corporation partners, statements required to be issued by the S corporation to its own shareholders under IRC § 6037(b) are also counted when determining the number of statements furnished by the partnership. Treas. Reg. § 301.6221(b)-1(b)(2)(ii). The IRS received comments suggesting that statements furnished to certain types of partners (for example, pass-through entities, disregarded entities, and spouses) not be counted for purposes of the 100-or-fewer partner threshold. The IRS generally declined those suggestions, retaining the requirement that the IRC § 6031(b) rules govern the 100-or-fewer partner determination.
Under the final regulations, an “eligible partner” is a partner that is an individual, C corporation (as defined under IRC §1361(a)(2)), eligible foreign entity (as defined under Treas. Reg. § 301.6221(b)-1(b)(3)(iii)), S corporation, or estate of a deceased partner. The final regulations retain the requirement that only those entities expressly provided under IRC § 6221(b)(1)(C) are eligible partners. Accordingly, the term “eligible partner” does not include partnerships, disregarded entities, trusts, non-eligible foreign entities, persons holding an interest in the partnership on behalf of another person, or estates of someone other than a deceased partner. An S corporation is an eligible partner even if one or more of its shareholders would be considered an ineligible partner if the shareholder(s) held a direct interest in the partnership. Treas. Reg. § 301.6221(b)-1(b)(3).
An IRC § 6221(b) election must be made with a timely filed partnership return (including extensions) for the taxable year for which the election applies. Once the election is made, it cannot be revoked without the consent of the IRS. IRC § 6221(b)(1)(D)(i); Treas. Reg. § 301.6221(b)-1(c)(1). The election must include information about each person that was a partner during the partnership taxable year, including the partner’s name, U.S. taxpayer identification number (TIN), tax classification, an affirmative statement that the partner is an eligible partner, and other information that the IRS requires. This means that all partners, including eligible foreign partners with no US filing requirements, must have a TIN in order for the partnership to make the IRC § 6221(b) election. For partnerships with S corporation partners, the election must also include the name, TIN, and tax classification of each person who was a shareholder in the S corporation at any time during the S corporation taxable year ending with or within the partnership’s taxable year. IRC § 6221(b)(1)(D)(ii); Treas. Reg. § 301.6221(b)-1(c)(2). A partnership that makes the election must notify each of its partners of the election within 30 days of making the election in the form and manner determined by the partnership. IRC § 6221(b)(1)(E). Treas. Reg. § 301.6221(b)-1(c)(3).
The partnership must have 100 or fewer partners. Whether a partnership has 100 or fewer partners is determined by the number of statements (Schedule K-1) the partnership is required to furnish under IRC § 6031(b) for the partnership taxable year. For partnerships with S corporation partners, any statements required to be issued by the S corporation to its own shareholders under IRC § 6037(b) are also counted when making this determination.
The partnership must have only “eligible partners” at all times during the partnership taxable year. If a partnership has an ineligible partner (such as a partnership or disregarded entity) during the taxable year, the partnership will not be eligible to make the election for that taxable year.
The partnership must make the election annually with its timely filed partnership return. The election must include required information about each person who was a partner during the partnership taxable year, and each partner must have a TIN. For partnerships with S corporation partners, the election must also include information about each shareholder of the S corporation.
Partnerships considering the IRC § 6221(b) election should consult their tax professional as soon as possible to determine what steps the partnership should take (e.g., amending the partnership agreement to restrict the number and/or types of partners) to ensure that the partnership is eligible for the election. If you would like more information about the IRC § 6221(b) election, please contact a member of the Haynsworth Sinkler Boyd Tax Practice Group.


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D. Pesicka, et al, Respondents.
Tukwila Associates, Petitioner, v. Dwight R.
 Utility Services - LID - "Total Cost" - Separate Duty To Make Improvements - Relinquishment. A municipality's relinquishment of a mature contract right to require one property owner within a proposed LID to make several of the same improvements for which the LID is formed constitutes a contribution of municipal assets to the project, and the value of the contractual rights relinquished must be excluded from the total cost of the improvement in determining whether protesting property owners are subject to "sixty percent or more of the total cost" of the improvement as required by RCW 35.43.180 to block the formation of the LID.
NAMES OF CONCURRING OR DISSENTING JUDGES: Stafford, J., did not participate in the disposition of this case.
NATURE OF ACTION: Several property owners challenged the formation of an LID, claiming to be subject to more than 60 percent of the total cost of the improvement. The protest was rejected by the defendant city.
Superior Court: The Superior Court for King County, Nos. 810315, 810377, James J. Dore, J., entered a judgment in favor of the city on December 7, 1976.
Court of Appeals: The court held at 19 Wn. App. 646 that the city's relinquishment of contractual rights to require some of the same improvements to be made by one landowner did not constitute a contribution to the total cost of the improvement and AFFIRMED the judgment. The decision was adhered to upon rehearing at 21 Wn. App. 96.
Supreme Court: Holding that the city's relinquishment of the contract rights constituted a municipal contribution of assets and should be deducted from the total cost of the improvement for purposes of determining the percent of protesting landowners, the court REVERSES the Court of Appeals and the trial court and REMANDS for further proceedings.
COUNSEL: DOBSON, HOUSER & DOBSON, by WYMAN K. DOBSON, for petitioners.
LESOURD, PATTEN, FLEMING & HARTUNG, LAWRENCE E. HARD, and WARREN T. CHAPMAN, for respondents.
MAJORITY OPINION: Petitioners are property owners challenging the formation of a local improvement district (LID) pursuant to RCW 35.43.180. Respondents are the City of Tukwila and a number of city officials. The trial court denied petitioners' application for a writ of prohibition, and the Court of Appeals affirmed the trial court's ruling. ESPING v. PESICKA, 19 Wn. App. 646, 577 P.2d 152 (1978); ESPING v. PESICKA, 21 Wn. App. 96, 583 P.2d 671 (1978). The matter comes to us on a petition for discretionary review. We reverse.
On December 15, 1975, the City Council of Tukwila passed resolution No. 507 declaring its intention to create an LID and assess the cost of the proposed improvement against owners of property within the district. The proposed LID encompasses property owned by six different property owners. Graydon Smith owns property which is subject to 46 percent of the total cost of the project. The remaining five property owners are jointly subject to 54 percent of the total cost of the contemplated improvement.
Smith is bound by a "Property Use and Development Agreement" into which his predecessor in interest had entered with the City of Tukwila. The agreement, which by its terms is binding upon Smith as the successor in interest, provides for a change in zoning which would then permit the construction of apartment houses upon the two tracts. The agreement provides in part that, in consideration of the zoning change, the property owner will be required to provide certain utilities and improvements to two streets which abut his property "as buildings and improvements are made on the property." (Exhibit 26.) A number of improvements which Smith is contractually bound to make are similar to those included within the proposed LID. The improvements proposed by the LID, however, are more extensive than those specified in the agreement between Smith and the City. The City granted Smith building permits in 1975, and he has constructed apartment buildings upon a substantial portion of the property located within the proposed LID boundaries. The City, however, has not required Smith to provide any of the improvements contemplated under the agreement.
" The jurisdiction of the legislative authority of a city or town to proceed with any local improvement initiated by resolution shall be divested by a protest filed with the city or town council within thirty days from the date of passage of the ordinance ordering the improvement, signed by the owners of the property within the proposed local improvement district or utility local improvement district SUBJECT TO SIXTY PERCENT OR MORE OF THE TOTAL COST OF THE IMPROVEMENT . . .
In challenging the formation of the LID under RCW 35.43.180, petitioners argued that since Smith is obligated to provide some of the utilities and improvements proposed by the LID, either his property should be excluded from the boundaries of the LID or the amount of the assessment against his property should be excluded in calculating the "total cost" under the protest provisions of RCW 35.43.180. Petitioners took the position that the city's relinquishment of its rights under the contract amounted to a contribution to the LID paid by the city and that, pursuant to Washington case law, a contribution to an LID by a city must be deducted from the total cost of the improvement prior to determining what percentage of the property owners protested the formation of the LID. SEE KASPER v. EDMONDS, 69 Wn.2d 799, 420 P.2d 346 (1966), and THYMIAN v. MASSART, 69 Wn.2d 806, 420 P.2d 351 (1966).
The trial court rejected petitioners' arguments and entered a judgment for the City. On appeal, the Court of Appeals initially held in ESPING v. PESICKA, SUPRA, that the City's conditional release of Smith's obligations under the agreement was not the equivalent of a cash contribution by the City such that its value had to be excluded from the "total cost" computation. This ruling was predicated on the Court of Appeals' mistaken understanding that Smith had not yet developed his property, a condition precedent to his obligation to provide the improvements. However, on rehearing and after noting that the property had in fact been developed, the Court of Appeals again held that the City had not acted improperly in relinquishing its rights under the agreement with Smith in favor of those improvements to result from the formation of the LID and further held that such relinquishment did not constitute a contribution of public funds to the project in violation of the parties' right of protest under RCW 35.43.180. ESPING v. PESICKA, 21 Wn. App. 96, 583 P.2d 671 (1978). Over Judge Ringold's dissent, the court thus adhered to its prior opinion affirming the trial court. We accepted review.
In the cases of KASPER and THYMIAN, the proposed LID's were to be paid for by assessments against property as well as by the direct contribution of municipal funds. Excluding the direct contribution by the cities, protesting property owners would have borne over 60 percent of the total cost of the improvement. By including the direct contribution by the cities in the total cost of the improvement, however, the protesting property owners would have been subject to less than 60 percent of the cost of the LID and would therefore have been unable to block the LID pursuant to RCW 35.43.180.
In both KASPER and THYMIAN, this court held that "total cost of the improvement", as it appears in RCW 35.43.180, refers to the assessed cost AS BORNE BY THE PROPERTY OWNERS WHOSE PROPERTY IS BENEFITED, and that properly filed protests representing 60 percent of this figure deprive a municipality of jurisdiction to proceed further with a proposed LID. The court in KASPER therefore concluded that the "total cost of the improvement" excludes that portion of the costs paid by the city from municipal funds.
"Viewed from a slightly different vantage point, the basic issue is whether the legislature intended to allow a municipality to deprive property owners of their right of protest when the municipality involved proposes to provide, from one fund or another, more than 40 per cent of the amount required to finance the local improvement.
"It seems very unlikely that the legislature would put the power to prohibit protests completely in the unguided discretion of cities and towns. The right of protest is the property owners' limitation on a municipality's power of assessment; in the absence of a clear statement, should a municipality be allowed to control its own limitations?
We believe that by relinquishing its contract rights against Smith, the City of Tukwila essentially contributed the value of the contract rights to the LID, thereby exerting a good measure of control over the limitation imposed by RCW 35.43.180. As such, it indirectly accomplished through relinquishment of a matured contract right what it could not directly accomplish through the allocation of funds, I.E., the deprivation of a property owner's right to protest an LID.
"The power of a municipality to include in the total cost computation the value of an improvement to which it is already entitled constitutes just as great a control of its own limitations as the power of a municipality to contribute its own funds to the total cost; the rights of the remaining property owners are manipulated by the municipality in either case. Both of these methods of computation are violative not only of the principle of the THYMIAN and KASPER cases, but also of the praecept fundamental to our system of government that ours is a government of laws, not of men. MARBURY v. MADISON, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803). ESPING v. PESICKA, 21 Wn. App. 96, 99, 583 P.2d 671 (1978).
Accordingly, we conclude that the value of the contract rights which the City contributed to the project must be excluded from the total cost of the improvement in determining whether the protesting homeowners constitute the necessary percentage to block the formation of the LID. The present value of the City's rights under the contract has not been established. Since Smith has partially developed his property and his obligation to provide improvements and utilities has thus matured, the value of the City's contractual rights can be determined by the trial court.
The matter is reversed and remanded to the trial court with directions to determine the monetary value of the contractual rights which the City relinquished. The trial court is further ordered to exclude the value of the rights from the total cost of the improvement and then to reconsider petitioners' challenge to the LID formation in accordance with this decision.
CONCURRING JUDGES: Utter, C.J., Rosellini, Wright, Brachtenbach, Horowitz, Dolliver, and Hicks, JJ., and Alexander, J. Pro Tem., concur.

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Petitioner Jose Luis Bedolla Avila (“Bedolla”), a native and citizen of Mexico, petitions for review of a Final Administrative Removal Order (“FARO”) issued on March 9, 2015, by an Assistant Field Office Director with U.S. Immigration and Customs Enforcement (“ICE”), United States Department of Homeland Security (“DHS”), in Allenwood, Pennsylvania. For the reasons that follow, we will deny the petition for review.
Bedolla illegally entered the United States in 1991, although he traveled to Mexico and re-entered the United States at least once since then. In February 2012, he was arrested in Chester County, Pennsylvania, on a bench warrant for failure to appear at trial on a charge of driving under the influence of alcohol. He was referred to an Immigration Enforcement Agent and, on February 22, 2012, was placed in removal proceedings pursuant to Section 240 of the Immigration and Nationality Act (“INA”), 28 U.S.C. § 1229a, on the grounds that he is an alien present in the United States without being admitted or paroled under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) (“An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.”). An Immigration Enforcement Agent personally served him with a Notice to Appear on February 29, 2012.
Bedolla obtained counsel. He conceded removability and requested cancellation of removal and adjustment of status. In February 2014, DHS filed a motion to pretermit the application for adjustment of status on the grounds that Bedolla had departed the United States and reentered without inspection after accruing more than one year of unlawful presence in the United States. See INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I). Bedolla did not respond to the motion. The Immigration Judge pretermitted the application for adjustment of status on April 18, 2014 and set a hearing on the issue of cancellation of removal for August 26, 2014.
On May 1, 2014, before the scheduled hearing date, Bedolla was arrested on drug charges. His attorney obtained a continuance of his removal hearing due to his arrest and incarceration. On February 18, 2015, Bedolla pleaded guilty to a charge of Possession with Intent to Manufacture or Deliver Cocaine in violation of 35 P.S. § 780-113(a)(30). The same day, the Court of Common Pleas of Chester County, Pennsylvania, sentenced Bedolla to a term of imprisonment of 282 days to 23 months pursuant to the plea agreement.
The day after Bedolla entered the guilty plea, February 19, 2015, DHS issued a Notice of Intent to Issue a Final Administrative Removal Order (“NOI”), placing Bedolla in expedited administrative removal proceedings pursuant to INA § 238(b), 8 U.S.C. § 1228(b), and charging him as removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), due to his conviction of an aggravated felony as defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). The NOI advised that Bedolla must respond to the charges in writing within 10 calendar days of service (or 13 days if service was by mail), and that the response may, among other things, rebut the charges or request withholding of removal. The unsigned Certificate of Service accompanying the NOI does not indicate the date or manner of attempted service. A check-box indicates, however, that Bedolla refused to acknowledge receipt of the NOI.
On March 9, 2015, an ICE detention officer wrote a memorandum to the Assistant Field Office Director advising that the period for responding to the NOI had elapsed, Bedolla had not filed a response, and a FARO should be signed. That same day, the Assistant Field Office Director signed the FARO. Although the Certificate of Service accompanying the FARO does not accurately reflect the date or manner of service, Bedolla avers that he received the FARO shortly after March 9, 2015.1 Bedolla timely filed this petition for review on April 8, 2015, within thirty days of the date of the FARO.
Bedolla expressed a fear of returning to Mexico. An Asylum Officer therefore conducted a reasonable fear interview on May 19, 2015, and, on June 3, 2015, denied Bedolla's reasonable fear claim. Bedolla requested a hearing before an Immigration Judge, which was held on June 8, 2015. The Immigration Judge found that Bedolla did not establish a reasonable possibility that he would be persecuted or tortured in Mexico, and therefore returned the case to DHS for Bedolla's removal. Bedolla later moved to re-open the proceeding and submit further evidence. The Immigration Judge denied reopening and Bedolla did not seek review of that decision.
We have jurisdiction over questions of law and constitutional claims presented in this petition for review. See INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). On June 11, 2015, Bedolla moved to have this Court stay removal. The Government did not oppose that motion. On August 26, 2015, a panel of this Court granted a stay of removal pending further order of the Court.
Bedolla argues that DHS erred by placing him in expedited administrative removal proceedings because his crime is not an aggravated felony for purposes of removal under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) ( “Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). Whether a criminal conviction constitutes an aggravated felony for purposes of removal is a question of law subject to plenary review. Thomas v. Attorney General, 625 F.3d 134, 141 (3d Cir. 2010).
INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), defines the term “aggravated felony” as, inter alia, “illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” To determine whether Bedolla's crime qualifies as an aggravated felony, we first attempt to employ the formal categorical approach. See Singh v. Ashcroft, 383 F.3d 144, 147 (3d Cir. 2004) (citing Taylor v. United States, 495 U.S. 575, 600 (1990)). This involves review of the statute of conviction without consulting other factual evidence. There are, however, situations in which a statute of conviction is divisible, i.e., it “sets out one or more elements of the offense in the alternative.” Descamps v. United States, 33 S. Ct. 2276, 2281 (2013). Where the statute of conviction is divisible, a departure from the formal categorical approach is necessary and a modified categorical approach instead must be employed. See Evanson v. Attorney General, 550 F.3d 284, 291 (3d Cir. 2008).
The statute under which Bedolla was convicted, 35 Pa. Cons. Stat. § 780-113(a)(30), is divisible with regard to both the conduct and the controlled substances to which it applies. United States v. Abbott, 748 F.3d 154, 159 (3d Cir. 2014) (“Because [the statute] can be violated by the possession of and intent to distribute many different drugs, the types of which can increase the prescribed range of penalties, the statute includes several alternative elements and is therefore divisible.”); Catwell v. Attorney General, 623 F.3d 199, 207 (3d Cir. 2010) (concluding the statute is divisible with regard to conduct because it describes distinct offenses of manufacture, delivery, and possession with intent to deliver or manufacture); see also Garcia v. Attorney General, 462 F.3d 287, 293 n.9 (3d Cir. 2006). Accordingly, we may “consult a limited class of documents ․ to determine which alternative [elements] formed the basis of the ․ conviction.” Descamps, 133 S. Ct. at 2281.
We therefore will consider the charging document, plea agreement, and trial court judgment to determine the exact crime to which Bedolla pleaded guilty. See Shepard v. United States, 544 U.S. 13, 16 (2005); Abbott, 748 F.3d at 158. It is undisputed that, in Bedolla's case, the controlled substance in question was cocaine. Bedolla argues, however, that his conviction was for conduct that does not qualify as an aggravated felony because he pleaded guilty to the mere possession of cocaine only. This argument is unavailing.
The statute of conviction, 35 Pa. Cons. St. § 780-113(a)(30), encompasses the following conduct: “manufacture, delivery, or possession with intent to manufacture or deliver” a controlled substance. With regard to possession, an intent to manufacture or deliver is an element of the offense. Cf. Gerbier v. Holmes, 280 F.3d 297, 299 (3d Cir. 2002). The relevant documents unequivocally establish that Bedolla pleaded guilty to possession with intent to deliver cocaine. For instance, the first charge of the criminal complaint accuses Bedolla of “Possession With Intent to Deliver COCAINE” in violation of 35 Pa. Stat. Ann. § 780-113(a)(30). The plea colloquy similarly describes the crime to which Bedolla pleaded guilty as “Possession w/ intent to deliver cocaine,” a felony with a maximum ten-year sentence. In support of the plea, Bedolla admitted, “From 2/14 to 4/14 defendant did give [illegible] cocaine to another when not licensed to do so. Happened in Chester County PA,” and his colloquy acknowledged both that his lawyer explained the elements of the offense to him and that he admitted that he committed the crime to which he pleaded guilty. Finally, the Court of Common Pleas sentencing sheet indicates that the charge was “PWID,” which is obviously an acronym for “possession with intent to deliver,” and is again listed as “Possession with Intent to deliver-cocaine, 2 grams,” which is a grade “F” crime (a felony).
Having identified Bedolla's crime as the felony of possession with intent to deliver cocaine, we next employ the framework for determining whether his conviction constitutes an aggravated felony. In Gerbier, 280 F.3d at 313, we held there are two independent but valid routes by which an offense may be found to qualify as an aggravated felony. The first, the illicit trafficking route, provides that a crime is an aggravated felony if it is a felony under state law and contains a trafficking element. Id. The second, the hypothetical federal felony route, provides that a crime is an aggravated felony if it would qualify as a felony under the Federal Controlled Substances Act. Id.
Bedolla argues that his conviction does not qualify as an aggravated felony because his crime does not contain a trafficking element. See id. at 299 (a state felony drug conviction qualifies as an aggravated felony if it contains a trafficking element). According to Bedolla, he did not commit a trafficking offense because he did not admit to the exchange of drugs for money. Yet we need not decide whether Bedolla's conviction is a trafficking offense because the hypothetical felony route leads us clearly to the conclusion that Bedolla's crime is an aggravated felony.
“Under the hypothetical federal felony route, we compare the offense of conviction to the federal Controlled Substances Act to determine if it is analogous to an offense under that Act.” Evanson, 550 F.3d at 289. A Pennsylvania felony conviction of possession of a controlled substance with intent to deliver is analogous to 21 U.S.C. § 841(a)(1) of the Controlled Substances Act. See Catwell, 623 F.3d at 207-08; Jeune v. Attorney General, 476 F.3d 199, 205 (3d Cir. 2007). The Controlled Substances Act, 21 U.S.C. § 841(a)(1), provides that it is a crime to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” Where the controlled substance in question is cocaine, the crime is punishable by a term of imprisonment of “not more than twenty years,” which qualifies as a felony.3 21 U.S.C. § 841(b)(1)(C) ( “[I]n the case of a controlled substance in schedule I or II ․ such person shall be sentenced to a term of imprisonment of not more than 20 years. ․”); see also 21 U.S.C. § 812 Schedule II (listing cocaine); 18 U.S.C. § 3559(a)(3) (providing that an offense for which the maximum term of imprisonment is less than twenty-five years but ten or more years is a Class C felony).
Because Bedolla was convicted of a crime analogous to the federal felony of possession with intent to distribute cocaine prohibited by § 841(a)(1) of the Controlled Substances Act, he committed an aggravated felony. Thus, Bedolla was properly subject to expedited administrative removal under INA § 238(b), 28 U.S.C. § 1228(b).
Next, Bedolla argues that the FARO is invalid because, at the time it was issued, the Executive Office for Immigration Review (“EOIR”) and DHS simultaneously were conducting removal proceedings against him on two separate bases – as an alien present without being admitted (in an EOIR removal proceeding before an Immigration Judge under INA § 240) and as an aggravated felon (in an expedited administrative removal proceeding initiated by DHS under INA § 238). According to Bedolla, DHS and EOIR lack jurisdiction to concurrently adjudicate removal proceedings on separate bases involving the same individual. The government responds that no statute or regulation prohibits a period of brief concurrent proceedings before both DHS and the Immigration Judge, particularly where the two removal proceedings were commenced on independent grounds.
In any proceeding commenced under section 240 of the Act which is based on deportability under section 237 of the Act, if it appears that the respondent alien is subject to removal pursuant to section 238 of the Act, the immigration judge may, upon the Service's request, terminate the case and, upon such termination, the Service may commence administrative proceedings under section 238 of the Act. However, in the absence of any such request, the immigration judge shall complete the proceeding commenced under section 240 of the Act.
8 CFR § 238.1(e) (emphasis added). According to Bedolla, this regulation mandates that any proceeding before the Immigration Judge must be dismissed before DHS permissibly may initiate an expedited removal proceeding.
We need not decide whether Bedolla has properly interpreted this regulation. Bedolla overlooks a critical issue: the terms of 8 CFR § 238.1 do not apply to him. The regulation applies only to § 240 proceedings before an Immigration Judge that are “based on deportability under section 237 of the Act.” (emphasis added). Bedolla's original removal proceeding was not based on INA § 237, 8 U.S.C. § 1227, which applies to “deportable aliens.” Rather, Bedolla's removal proceeding before the Immigration Judge was based on INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), which applies to “inadmissible aliens,” due to his status as an alien who had not been admitted or paroled. He was not the subject of a Section 237 proceeding; therefore, by its terms, 8 C.F.R. § 238.1 does not control.
Bedolla next looks to the regulations at 8 C.F.R. §§ 239.1 and 239.2, which govern the issuance and cancellation of a notice to appear, the document that triggers proceedings before an Immigration Judge. For instance, 8 C.F.R. § 239.2(c) provides that “[a]fter commencement of proceedings pursuant to 8 C.F.R. § 1003.14 [concerning commencement of proceedings before an Immigration Judge], ICE counsel, or any officer enumerated in paragraph (a) of this section, may move for dismissal of the matter on the grounds set out under paragraph (a) of this section.” Paragraph (a), in turn, permits cancellation of a notice to appear on a number of grounds, including that “[c]ircumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interest of the government.” 8 C.F.R. § 239.2(a)(7).
We see nothing in these provisions directing that a proceeding before an Immigration Judge must be cancelled at a particular time. We certainly see nothing to support Bedolla's claim that the regulations “do not permit” a brief period in which an individual may face removal proceedings before both an Immigration Judge and DHS. These regulations simply do not address the issue of concurrently pending removal proceedings where, as here, the proceedings were based upon independent reasons for effecting removal.
In support of his interpretation of 8 C.F.R. § 239.2, Bedolla relies upon a decision by the Board of Immigration Appeals, In re G-N-C, 22 I & N Dec. 281 (BIA 1998). In G-N-C, the government moved to terminate a proceeding pending before an Immigration Judge so that it could reinstate a prior deportation order under INA § 241, based upon the petitioner's conviction of a crime of moral turpitude. Id. at 282-83. The day after the government filed the motion, without considering any response from the petitioner, the Immigration Judge summarily terminated the removal proceeding as unopposed. Id.
[A]fter commencement of proceedings in the Immigration Court, Service counsel “may move for dismissal of the matter on the grounds set out (in) this section.” 8 C.F.R. § 239.2(c). This language marks a clear boundary between the time prior to commencement of proceedings, where a Service officer has decisive power to cancel proceedings, and the time following commencement, where the Service officer merely has the privilege to move for dismissal of proceedings. By this distinction, the regulation presumably contemplates not just the automatic grant of a motion to terminate, but an informed adjudication by the Immigration Judge or this Board based on an evaluation of the factors underlying the Service's motion.
Thus, the G-N-C decision addresses the proper manner in which an Immigration Judge may terminate one removal proceeding where a second is going forward. 22 I & N Dec. at 284. It does not undermine our conclusion that 8 C.F.R. § 239.2 is silent as to whether concurrent removal proceedings may be permitted to proceed. Indeed, G-N-C recognizes that an Immigration Judge has the authority to deny a motion to terminate, which implies that two proceedings could be allowed to go forward simultaneously. See 22 I & N Dec. at 284 (“[T]he regulation presumably contemplates not just the automatic grant of a motion to terminate, but an informed adjudication by the Immigration Judge or this Board based on an evaluation of the factors underlying the Service's motion.”).
Finally, Bedolla looks to INA § 238(b)(1), 8 U.S.C. § 1228(b)(1), which provides, “[t]he Attorney General may, in the case of an alien described in paragraph (2), determine the deportability of such alien under section 1227(a)(2)(A)(iii) of this title (relating to conviction of an aggravated felony) and issue an order of removal pursuant to the procedures set forth in this subsection or section 1229a of this title.” (emphasis added). According to Bedolla, the “or” at the end of this provision reflects a congressional intent to prohibit concurrent proceedings under both sets of procedures.
Once again, we do not interpret this language to prohibit the pendency of concurrent removal proceedings. Rather, this statute permits the government discretion to issue a final order of removal under either one of the two applicable provisions. In Bedolla's case, DHS chose to proceed by issuing a final order of removal under INA § 238(b), 8 U.S.C. § 1228(b), rather than under INA § 240, 8 U.S.C. § 1229a. This is consistent with the terms of the statute, and does not compel a conclusion that the FARO is invalid solely because it was issued while a proceeding before an Immigration Judge remained pending.
Finally, Bedolla argues that the conduct of simultaneous proceedings before the Immigration Judge and DHS resulted in a deprivation of his right to due process. We reject this claim. Bedolla has made no showing that he was prevented from reasonably presenting his case. See Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002). Moreover, as we have concluded that there was no violation of the applicable statutes or regulations, Bedolla has failed to establish that he suffered a violation of any fundamental right. Cf. Leslie v. Attorney General, 611 F.3d 171, 178 (3d Cir. 2010) (“[V]iolations of regulations promulgated to protect fundamental statutory or constitutional rights need not be accompanied by a showing of prejudice to warrant judicial relief.”).
For all of the foregoing reasons, the petition for review will be denied. The stay of removal previously imposed by a panel of this Court is hereby lifted.
1. The Certificate of Service at the bottom of the FARO appears to have been signed by the same Immigration Enforcement Agent who signed the NOI and bears the same date as the NOI, February 20, 2015, while the Order portion of the FARO was signed by the Assistant Field Office Director on March 9, 2015. It is not clear whether DHS attempted to serve Bedolla with an unsigned copy of the FARO on February 20, 2015 (service that Bedolla rejected) or whether there is an error on the certificate of service on the March 9, 2015, FARO. Although this might give rise to confusion, Bedolla has not argued that a FARO was issued on February 20, 2015, and he did not timely file a petition for review of any document issued on that date. Accordingly, this opinion considers the FARO that undisputedly was signed by the Assistant Field Office Director on March 9, 2015, was served upon Bedolla shortly thereafter, and from which Bedolla filed this petition for review.
2. The same Assistant Field Office Director signed both versions of the FARO and prepared the Certified Official Record of Proceedings on behalf of DHS. The Certified Official Record of Proceedings does not include the copy of the March 9, 2015, FARO that we now review. This Court therefore has relied upon the copies of the March 9, 2015, FARO provided by Bedolla and which appears in the appendix to the Government's brief. The inaccuracies in the March 9, 2015, FARO and its omission from the official Certified Official Record of Proceedings are troubling. This Court requires an accurate administrative record in order to properly consider a petition for review. Agencies must be scrupulous in including all documents before certifying the record.
3. Although Bedolla's crime involved a relatively small quantity of cocaine (2 grams), the federal Controlled Substances Act does not contain an exception for a conviction involving a small quantity of cocaine. In contrast, state convictions for possession with intent to deliver small amounts of marijuana for no remuneration may be subject to an express exception to the Controlled Substances Act. See 21 U.S.C. 841(b)(4); Catwell, 623 F.3d at 206-07 (a state conviction for distributing a small amount of marijuana without remuneration may not be analogous to a felony conviction under the Controlled Substances Act and therefore may not qualify as an aggravated felony under the hypothetical federal felony route).


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2018/12/31 – v. 1.22: Reached 3,300 reference images.
2018/09/01 – v. 1.21: Reached 3,000 reference images.
2018/09/01 – v. 1.2: Reached 300 species pages.
2017/12/22 – v. 1.17: Reached 2,700 reference images.
2017/11/05 – v. 1.16: Reached 2,400 reference images.
2017/10/02 – v. 1.15: Reached 2,100 reference images.
2017/09/13 – v. 1.14: Reached 1,800 reference images.
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2017/08/29 – v. 1.11: Reached 900 reference images.
2017/08/26 – v. 1.10: Reached 200 species pages.
2017/08/25 – v. 1.01: Reached 600 reference images.
2017/08/23 – v. 1.00: The Reptiles of India website launched.
Kunte, K., and A. Khandekar. 2019. A History Of reptiles Of India Web Versions. In Khandekar, A., N. Gaitonde, P. Roy, and K. Kunte (eds.). Reptiles of India, v. 1.22. Indian Foundation for Butterflies.

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UNDERWAGER v. CHANNEL AUSTRALIA 60 October 31, 1995 No. 94-55227.
UNITED STATES v. AMPARO October 31, 1995 No. 94-10542.
UNITED STATES v. REDMOND October 31, 1995 No. 94-30436.
SACKS v. COMMISSIONER INTERNAL REVENUE SERVICE GEYSER October 31, 1995 Nos. 93-70401, 93-70724.
PEOPLE TERRITORY GUAM v. CEPEDA October 31, 1995 No. 94-10535.
DEL WEBB McQUEEN DEVELOPMENT CORPORATION v. RESOLUTION TRUST CORPORATION FSA October 30, 1995 No. 94-15266.
IN RE: Gregory IVORY October 30, 1995 No. 94-35511.
IN RE: Howard ATKINS; Romie Atkins October 27, 1995 No. 94-15076.
TRITON ENERGY CORPORATION v. SQUARE COMPANY TRITON ENER October 27, 1995 Nos. 94-15544, 94-16132,94-15588 and 94-16130.
ANHEUSER BUSCH INC v. NATURAL BEVERAGE DISTRIBUTORS October 27, 1995 No. 93-17335.
WHITMORE v. FEDERAL ELECTION COMMISSION October 26, 1995 No. 94-36236.
UNITED STATES v. DIA October 26, 1995 No. 95-10119.
SARATOGA FISHING CO v. MARCO SEATTLE INC SARATOGA FISHING CO October 26, 1995 Nos. 93-56344, 93-56368 and 93-56501.
UNITED STATES v. MEJIA October 26, 1995 No. 94-50406.
CLEMENTS v. AIRPORT AUTHORITY OF WASHOE COUNTY October 26, 1995 No. 93-16693.
BROWN v. EASTER October 25, 1995 No. 94-35591.
UNITED STATES v. ARMENTA October 25, 1995 No. 94-50330.
TOTAL TV TV v. PALMER COMMUNICATIONS INC October 24, 1995 No. 94-55112.
SUPERMAIL CARGO INC v. UNITED STATES October 24, 1995 No. 94-55316.
HICKS v. SMALL October 23, 1995 No. 94-15011.
ROBERTS v. SHALALA October 23, 1995 No. 93-35806.
PRUDENTIAL INSURANCE COMPANY OF AMERICA v. MART October 20, 1995 No. 93-56662.
NORDVIK v. COMMISSIONER INTERNAL REVENUE SERVICE October 20, 1995 No. 93-70434.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 357 AFL CIO v. BROCK October 20, 1995 No. 94-16131.
KOCH v. RICKETTS October 19, 1995 No. 92-16517.
CARUNCHO v. IMMIGRATION AND NATURALIZATION SERVICE CARUNCHO October 19, 1995 Nos. 93-70448, 94-70753.
PEOPLE TERRITORY OF GUAM v. TORRE October 19, 1995 No. 94-10508.
UNITED STATES v. DUARTE HIGAREDA October 19, 1995 No. 94-55970.
ADRAY CBS v. ADRY MART INC October 19, 1995 No. 93-55930.
UNITED STATES v. FUENTES MONTIJO October 19, 1995 Nos. 94-10453, 94-10469.
NAVARRO v. BLOCK October 19, 1995 No. 94-55701.
FREEMAN RED TURTLE v. CITY OF SANTA ANA October 19, 1995 No. 93-56470.
SABELKO v. CITY OF PHOENIX October 19, 1995 No. 94-15495.
LAKE MOHAVE BOAT OWNERS ASSOCIATION v. NATIONAL PARK SERVICE October 18, 1995 Nos. 93-55629, 93-55759 and 93-55875.
KENNEDY v. COLLAGEN CORPORATION October 17, 1995 No. 94-15197.
REPUBLIC WESTERN INSURANCE COMPANY v. SPIERER WOODWARD WILLENS DENIS AND FURSTMAN SPIERER WOODWARD WILLENS DENIS AND FURSTMAN October 17, 1995 No. 93-56314.
MANGOLD v. CALIFORNIA PUBLIC UTILITIES COMMISSION October 17, 1995 Nos. 94-15287, 94-15696.
RICHARDSON v. PENSION PLAN OF BETHLEHEM STEEL CORPORATION AND SUBSIDIARY COMPANIES October 17, 1995 No. 93-36089.
ABC NATIONAL LINE ERECTION APPRENTICESHIP TRAINING TRUST v. AUBRY JR October 17, 1995 No. 93-17317.
ACEVES v. ALLSTATE INSURANCE COMPANY October 16, 1995 Nos. 94-55087, 94-55088.
ASSOCIATED BUILDERS AND CONTRACTORS INC v. J October 16, 1995 Nos. 92-16308, 92-16276.
INTEL CORPORATION AND CONSOLIDATED SUBSIDIARIES v. COMMISSIONER INTERNAL REVENUE SERVICE October 16, 1995 Nos. 94-70105, 94-70158.
UNITED STATES v. SAVAGE October 13, 1995 No. 93-10667.
INTERNATIONAL AMBASSADOR PROGRAMS INC v. ARCHEXPO USSR ARCHEXPO COMMERCE AND INDUSTRY CENTRE October 13, 1995 Nos. 94-35588, 94-35589.
Cathy FREESTONE, individually, on behalf of their minor children and on behalf of all others similarly situated; Susan Harrington, individually, on behalf of their minor children and on behalf of all others similarly situated; Sonya Madrid, individu October 12, 1995 No. 93-16697.
CHEEMA v. THOMPSON October 12, 1995 No. 94-16868.
UNITED STATES v. BRACY UNITED STATES October 12, 1995 Nos. 93-10726, 93-10727, 93-10782 and 94-10033.
KRUSE v. STATE OF HAWAI October 12, 1995 No. 94-16519.
GAMBLE v. CHATER October 12, 1995 No. 94-35186.
UNITED STATES v. STEARNS October 12, 1995 No. 94-35451.
DUNCAN v. COMMISSIONER OF INTERNAL REVENUE SERVICE October 12, 1995 No. 94-70183. Tax Court No. 16266-91.
DAVIES v. COMMISSIONER OF INTERNAL REVENUE LOMBARDO October 12, 1995 Nos. 94-70099, 94-70315, 94-70316, 94-70317 and 94-70523.
UNITED STATES v. HENDERSON October 12, 1995 No. 94-10449.
IN RE: Terry ALSBERG October 11, 1995 No. 94-15085. BAP No. NC-92-2318-JAsO.
AMERICAN TUNABOAT ASSOCIATION v. BROWN October 10, 1995 No. 94-16275.
CAL ALMOND INC v. DEPARTMENT OF AGRICULTURE October 10, 1995 Nos. 94-17160, 94-17163, 94-17164, 94-17166, 94-17167 and 94-17182.
IN RE: Donald TAFFI; Madelaine Taffi October 10, 1995 Nos. 94-55011, 94-55019.
FRED MEYER INC v. CASEY 50 October 10, 1995 No. 92-35067.
KINDT v. SANTA MONICA RENT CONTROL BOARD October 10, 1995 No. 94-55479.
IN RE: Fred LOWENSCHUSS October 10, 1995 No. 94-16287.
ESSELSTROM v. CHATER October 6, 1995 No. 94-35506.
HEARN v. WESTERN CONFERENCE OF TEAMSTERS PENSION TRUST FUND October 6, 1995 No. 93-55167.
ZINMAN v. SHALALA October 5, 1995 No. 94-15198.
STATE OF ALASKA v. BABBITT October 5, 1995 No. 94-35677.
STATE v. BABBITT October 5, 1995 No. 94-35677.
YNIGUEZ v. ARIZONANS FOR October 5, 1995 Nos. 92-17087, 93-15061, 93-15719.
UNITED STATES v. EYLER October 5, 1995 No. 93-30433.
SCHWARTZ v. UNITED STATES October 5, 1995 No. 94-15685.
BROCKAMP v. UNITED STATES October 5, 1995 No. 94-56424.
ERICKSON v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES October 5, 1995 No. 94-36067.
JONES INTERCABLE OF SAN DIEGO INC v. CITY OF CHULA VISTA October 5, 1995 No. 93–56397.
UNITED STATES v. WASHINGTON October 4, 1995 No. 93-50786.
GOTCHER v. WOOD October 4, 1995 No. 94-35484.
GARCIA v. CONCANNON October 4, 1995 No. 94-35457.
POOLAW III v. BISHOP 27 October 4, 1995 No. 94–15324.
McGRATH v. COUNTY OF NEVADA October 3, 1995 No. 94-15692.
HENSLEY v. CRIST October 3, 1995 No. 94-16601.
UNITED STATES v. VARGAS October 3, 1995 No. 93-50236.
Grady AUVIL and Lillie Auvil, husband and wife; Robert Bernath and Cathy Bernath, husband and wife; Robert Brody and Charlotte Brody, husband and wife; Burt Chestnut and Elly Chestnut, husband and wife; Harold Cox and Lorraine Cox, husband and October 2, 1995 No. 93-35963.
IN RE: DAK INDUSTRIES October 2, 1995 No. 94-55029.
PEOPLE v. CRUZ October 2, 1995 No. 94-10287.
UNITED STATES v. PEREZ October 2, 1995 Nos. 94-10313, 94-10314 and 94-10400.
NOME ESKIMO COMMUNITY v. BABBITT October 2, 1995 No. 94-35668.

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text:
INDICTMENT found and returned in the Superior Court on December 5, 1968.
REARDON, J. The defendant was convicted in the Superior Court of manslaughter in a trial held subject to G. L. c. 278, Sections 33A-33G, and the case is now before us on assignments of error. Relevant facts will be discussed as necessary in dealing with the points raised by the defendant.
peril." In reacting to the situation, "he is to be judged by the circumstances then existing."
The defendant's objection centers on the fact that the judge also charged the jury that the right of self-defence arises only when there are no avenues of escape open to the one attacked, whereas the requested instructions would have had the defendant judged entirely on whether he reacted reasonably to the situation as he saw it, regardless of whether he was able to retreat and so avoid the fight. The judge was also correct, however, in this aspect of the charge. It is well settled in this Commonwealth that "[t]he right of self-defence does not accrue to a person until he has availed all proper means to avoid physical combat." Commonwealth v. Kendrick, 351 Mass. 203, 212. Commonwealth v. Peterson, 257 Mass. 473, 477. Commonwealth v. Trippi, 268 Mass. 227, 232. Commonwealth v. Houston, 332 Mass. 687, 690. Commonwealth v. Hartford, 346 Mass. 482, 490. Whatever qualification of this principle might be proper in cases where the defendant is attacked with deadly force is not applicable here, where neither the defendant nor the victim was armed and it was evident that "neither . . . [had] a purpose to kill the other or to inflict on him serious or grievous bodily harm." Commonwealth v. Peterson, supra, at 477-478. The defendant's contentions that there is no requirement of retreat where nondeadly force is used in defence, or where the attack occurs at the place of employment of the one attacked, find no support in our law. His argument that "detached reflection" should not be required of the one attacked is based on a clearly inaccurate interpretation of the substance of the judge's charge, as the brief portions quoted above illustrate.
Finally, the defendant argues that because the judge did not explicitly so state, the jury might not have realized that if they found the defendant acted in self-defence he was entitled to a verdict of not guilty. We cannot feel the drawing of this inference from the judge's extensive charge on the "right" of self-defence was an undue strain on the jury's intelligence, or that they did not in fact draw it.
2. The defendant's second objection stems from the statement of the prosecutor in his closing argument to the effect that the defendant was a mere interloper in the quarrel which resulted in the victim's death and that he had no right to initiate it as he did. The defendant had testified, on the contrary, that he was employed to "[work] the floor" at the lounge where the incident occurred. (It was agreed that the victim, his wife and sister had visited the lounge and left without having touched or paid for their drinks, and that the defendant went after them to ask them to pay. The victim was killed as a result of a blow from the defendant on the landing outside the front door of the lounge. The blow caused him to fall backward and to hit his head on the concrete stairs and the parking lot below.) There was no direct evidence that the defendant was not an employee. However, two waitresses were called as witnesses by the defence and not questioned on this subject. A written statement of one, Gladys Heath, which was admitted at the trial could indicate that he was not employed there. [Note 1] In addition, the owner of the lounge, who was present at the trial, was not called as a witness by the defence. The prosecutor pointed out this fact, as well as the ambiguous nature of Mrs. Heath's written statement, to support his position.
the jury. The fact that he did not challenge on cross-examination the defendant's statement that he was employed at the lounge did not preclude him from raising this issue in his closing argument. In commenting on the evidence, the prosecutor did no more than point up weaknesses in the evidence of the defence on this point which were obvious. His comment on the failure to call the owner was not improper, since the owner was indisputably available and could have removed the doubt left by Mrs. Heath's statement as to the defendant's status. Commonwealth v. Domanski, 332 Mass. 66, 70-71, and cases cited. Grady v. Collins Transp. Co. Inc. 341 Mass. 502. Commonwealth v. Smith, 342 Mass. 180, 186.
Finally, whatever undue influence the prosecutor's some-what emphatic presentation of his version of what happened might have had on the minds of the jury was adequately counteracted by the judge in his charge. Although he refused the requested instruction of the defence, [Note 3] he instructed the jury that counsel could not add to the testimony of the witnesses and that they were not to accept conclusions of counsel drawn from arguments or facts "except as they appeal to you as reasonable conclusions for you to draw from the facts that you find true." He then went on to instruct the jury at some length as to the kinds of inferences they could properly draw.
struck the victim, which objection was sustained. The prosecutor did not repeat this question but returned, without objection, to the defendant's silence in the period immediately following the incident. The admissibility of the evidence which thus came in "cannot be raised for the first time in this court." Commonwealth v. Bottiglio, 357 Mass. 593, 598. Donahue v. Dal, Inc. 314 Mass. 460, 463.
4. The defendant's final objection is to two questions put by the prosecutor to the defendant asking if he had been a fighter. Objections to both questions were sustained. Counsel for the defendant did not take an exception to these questions or ask the judge to instruct the jury to disregard it. He cannot, therefore, raise this issue now. Commonwealth v. Bottiglio, supra.
[Note 1] The statement recounts that after the victim and his party refused to pay for the drinks, "I went to the back of the bar and talked to Victor DeCaro. He is almost always in the place and Amadeo, the owner, is his brother-in-law."
[Note 2] We assume the point was properly raised, although no objection was taken by counsel for the defendant until after the closing argument. Commonwealth v. Hassan, 235 Mass. 26, 33. See Commonwealth v. Bottiglio, 357 Mass. 593, 597.
[Note 3] In fact, the judge did not once mention the defendant's alleged employment, either in connection with the question of self-defence or any other. Whether or not the defendant was an employee seems of only tangential relevance to his guilt or innocence of the crime charged. It is therefore questionable whether, even if there had been error in the prosecutor's argument on this point, it would have been prejudicial.


A guest blogger* reviews Monday’s relisted cases.
John Elwood asked me to guest-write this post. John is a beautiful man and a very good friend but I told him no – Relist Watch is very very boring. But when he pointed out to me all the big names who have posted on this site recently, and that for a key part of the Friday news cycle I would be on the “cover” of SCOTUSblog, I caved. I can’t resist a cover. And after you read my post, it’s going to be so good you’ll never want to read one by John again. I love you John but it’s the truth. Anyway John tells me he usually uses some theme relating to the news or time of year. So this week will be March Madness. And let me tell you, I have the best bracket. All winners in my bracket. My teams are going to win so much that you are going to get bored of all the winning and you’re going to ask me – Donald, can’t one of your teams lose just for something different? And I will say no because it’s all about winning.
Speaking of winners, let’s talk about the cases that had a great week. I had a great week. I won a bunch of states – ten, twelve, sixty states. That’s like every week for me. But these cases had good weeks too. Caetano v. Massachusetts, 14-10078, is a huge winner after nine relists. Taking nine relists to get summary vacatur is kind of low energy. I like cases that get summary vacatur after one relist, but it worked out in the end. The Court issued a per curiam opinion vacating the decision of the Supreme Judicial Court of Massachusetts, saying it messed up when it said the Second Amendment doesn’t protect the use of stun guns. The Supreme Court’s opinion was like five paragraphs long, and most of it boiled down to the idea that the Second Amendment isn’t limited to the kinds of weapons that Aaron Burr and that guy Hamilton who is so hot right now dueled with. Nobody dissented on this one. Nobody! That’s a strong opinion. And just like I said all along, Justices Alito and Thomas wrote to explain how totally wrong the Massachusetts court was. Some people are saying I predicted they’d dissent from the denial of cert., but trust me, that opinion started out as a dissent from denial and it was just so right that everybody went along with it. Nobody supports and backs up the Second Amendment like I do.
Samsung Electronics Co. v. Apple, 15-777, is another winner. The Court granted cert. after one relist, but only on the second question, which is about whether, when a design patent is applied to only one component of a product, an award of infringer’s profits should be limited to those profits attributable to the component. I like cert. petitions where all the questions get granted, and trust me, with my petitions, the most terrific and luxurious petitions in the world, every question gets granted. But that question has the word “profits” right in it, so I’m a huge fan.
We have two losers to talk about. They’re wonderful cases and I love them and they love me but they ran terrible campaigns so they lost. The first loser is Cook v. Barton, 15-580, a state-on-top habeas case that couldn’t get granted even with two relists. I can see why the Court didn’t take that one. It was about a really tricky habeas question, about figuring out whether a state court decided a case on a procedural or substantive ground. Not exciting stuff. The second loser is Nebraska and Oklahoma v. Colorado, 22-O-144, an original jurisdiction case. Nebraska and Oklahoma wanted to bring a suit in the Supreme Court against Colorado because they said the bad effects from commercial pot sales in Colorado were spilling over into their states. But even after three relists, the Court wouldn’t let them file their bill of complaint. Poor work ethic! At least Justice Thomas and Justice Alito dissented.
Two relists are back again this week. Clean Air Act case Ohio v. Sierra Club, 15-684, was relisted a third time. Ohio says the Sixth Circuit messed up when it reversed the EPA’s approval of Cincinnati’s plan to maintain its attainment status under the Clean Air Act. This is one of those environmental cases where the government agrees that the court of appeals got it wrong but still opposes cert. because it thinks the case isn’t important enough. This is a very tough situation, but I could put together a deal that everyone would love – the EPA, Ohio, the Sierra Club, even the air. Woods v. Etherton, 15-723, is also from the Sixth Circuit and also got its third relist. It asks whether the Sixth Circuit didn’t give enough deference to the state court when it decided that a criminal defendant’s counsel was ineffective because he failed to raise a Confrontation Clause issue.
There are like eight more returning relists, and seven of those end with the words “v. Alabama.” They all involve the same issue as Montgomery v. Louisiana, which held that that the Supreme Court’s decision prohibiting sentences of life without parole for juveniles applies retroactively to cases on collateral review. Usually, you’d expect the Court to grant, vacate, and remand (“GVR”) these cases and let the lower courts sort out what happens next. Why haven’t these cases been GVR’d yet? This could be a clue: Justice Thomas wrote many, many concurring opinions, unusual opinions, for the last group of Montgomery GVRs, joined by Justice Alito, saying the petitioners could still lose on procedural grounds. Could be the two of them are trying to sort out which of those petitioners’ claims are procedurally barred. Something’s going on. Could be a big problem for those petitioners.
Now for the new relists. I love relists and relists love me. Let me tell you something about relists. Relists are cases that could have given up. But instead they are fighting all the way to the Supreme Court, and then some. That’s just like me. I get sued a lot, okay? A lot. And I could settle all these cases against me. They’re tiny cases. I could settle them for very little money. But I never settle and neither do these guys so they’re all winners. The first new relist is Bravo-Fernandez v. United States, 15-537. Juan Bravo-Fernandez, the president of a security firm, and Hector Martínez-Maldonado, a senator in Puerto Rico, were charged with committing two crimes on a weekend trip to Las Vegas, where I hope they stayed at the Trump International Hotel. It’s the most beautiful, most luxurious hotel in Vegas. I’m talking sixty-four stories and it looks like it’s made of gold. The most beautiful people stay there. So allegedly, Bravo-Fernandez paid for Martínez-Maldonado’s trip to Vegas and for boxing tickets a day after Bravo-Fernandez testified in front of Martínez-Maldonado about a bill he wanted passed. The two men were charged with (1) federal program bribery under 18 U.S.C. § 666 and (2) conspiring and traveling to violate 18 U.S.C. § 666. The jury acquitted them of the charge of conspiring and traveling but convicted them of the bribery offense itself. Which makes no sense – I’m not saying it was a stupid jury, but I hear other people saying that. The Section 666 convictions were thrown out on appeal because of a mess-up in the jury instructions. Then prosecutors wanted to try the two men again, but the defendants argued that since they were acquitted of conspiring and traveling to commit a Section 666 offense, double jeopardy kept the prosecutors from re-trying them on the Section 666 charge. They cited Yeager v. United States, where the Court held that double jeopardy applies when the court acquits on one count and hangs on another. The district court and First Circuit disagreed, citing United States v. Powell, where the Court held that a jury could acquit on one charge and convict on another even if the two verdicts are logically inconsistent. The First Circuit held that because the two men were convicted of the Section 666 charge before it was vacated, their case is more like Powell than Yeager. The petitioners argue that there is a five-to-three circuit split on this issue. They also argue that the Double Jeopardy Clause was violated when the district court withdrew a judgment of acquittal it entered by mistake on remand from the original First Circuit decision. A lot is going on in that case.
The second new relist is Beckworth v. Alabama, 15-7451, a capital murder case from one of my favorite states. Rex Allen Beckworth was convicted of capital murder and sentenced to death. Beckworth says that his half-brother and co-defendant was the actual murderer, that his half-brother admitted that to a cellmate, and that the lyin’ prosecution withheld that information from the defense. The Alabama courts totally rejected that argument, saying that Beckworth didn’t plead that claim specifically enough and that he had to allege enough facts to establish that the defense didn’t know that information. Beckworth’s petition asks whether the defendant’s lawyer can be presumed to know about exculpatory information withheld by the prosecution. Something weird about that case – the Court didn’t relist it for the next Conference, like they usually do. It relisted it for the April 1 Conference instead. Very strange.
The Court also rescheduled two cases again: Arrigoni Enterprises, LLC v. Town of Durham, Connecticut, 15-631, and Kakarala v. Wells Fargo Bank, N.A., 15-712. Nobody cares.
I’m off to make America great again. The usual losers who do this thing will be back next week with more of this crap. Whose idea was it that I do this? They’re fired.
* In the interests of accuracy, we note that this post was entirely written by the same idiots as always. Thanks to Bryan U. Gividen for using his beautiful hands to compile the cases in this post, and Dmitry Slavin, who got so into character drafting it that his hair may never recover.
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.
Issue(s): Whether, under Ashe v. Swenson and Yeager v. United States, a vacated, unconstitutional conviction can cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause.
Issue(s): Whether defense counsel may be presumed to have knowledge of exculpatory statements withheld by the prosecution, absent an initial showing otherwise.


Argued: March 3 and 7, 1921.
Mr. Joseph A. Seidman, of New York City. for appellant.
Mr. David L. Podell, of New York City, for appellees.
Mr. William D. Guthrie, of New York City, for the Attorney General of New York, amicus curiae.
This is a bill in equity brought by the Marcus Brown Holding Company, the appellant, owner of a large apartment house in the city of New York, against the tenants of an apartment in the house and the District Attorney of the County of New York. The tenants are holding over after their lease has expired, which it did on September 30, 1920, claiming the right to do so under Chapters 942 and 947 of the Laws of New York of 1920. The object of the bill is to have these and other connected laws declared unconstitutional. The District Attorney is joined in order to prevent his enforcing by criminal proceedings Chapters 131 and 951 of the acts of the same year, which make it a misdemeanor for the lessor or any agent or janitor intentionally to fail to furnish such water, heat, light, elevator, telephone, or other service as may be required by the terms of the lease and necessary to the proper or customary use of the building. The case was heard in the District Court by three judges upon the bill, answer, affidavits and some public documents, all of which may be summed up in a few works. The bill alleges at length the rights given to a lessor by the common law and statutes of New York before the enactment of the statutes relied upon by the tenants, a covenant by the latter to surrender possession at the termination of their lease, and due demand, and claims protection under Article 1, Section 10 and the Fourteenth Amendment of the Constitution of the United States. An affidavit alleges that before the passage of the new statutes another lease of the premises had been made, to go into effect on October 1, 1920. The answer of the tenants relies upon the new statutes and alleges a willingness to pay a reasonable rent and any reasonable increase as the same may be determined by a court of competent jurisdiction. It also alleges that they made efforts to obtain another suitable apartment but failed. The District Attorney moved to dismiss the bill. The judged considered the case upon the merits, upheld the laws and ordered the bill to be dismissed.
By the above mentioned Chapters 942 and 947, a public emergency is declared to exist and it is provided by Chapter 947 that no action 'shall be maintained to recover possession of real property in a city of a population of one million or more or in a city in a county adjoining such city, occupied for dwelling purposes, except an action to recover such possession upon the ground that the person is holding over and is objectionable, * * * or an action where the owner of record of the building, being a natural person, seeks in good faith to recover possession of the same or a room or rooms therein for the im mediateand personal occupancy by himself and his family as a dwelling; or an action to recover premises for the purpose of demolishing the same with the intention of constructing a new building. * * *' The earlier Chapter 942 is similar with some further details. Both acts are to be in effect only until November 1, 1922. It is unnecessary to state the provisions of Chapter 944 for disputes as to what is a reasonable rent. They are dealt with in the decisions of the Court of Appeals cited below and in Edgar A. Levy Leasing Co., Inc., v. Siegel, 130 N. E. 923, March 8, 1921, by the same Court. In this as in the previous case of Block v. Hirsh, 256 U. S. 135, 41 Sup. Ct. 458, 65 L. Ed. , we shall assume in accordance with the statutes, the finding of the Court below and of the Court of Appeals of the State, in People ex rel. Durham Realty Corporation v. La Feltra, 230 N. Y. 429, 130 N. E. 601, March 8, 1921, and Guttag v. Shatzkin, 130 N. E. 929, March 8, 1921, that the emergency declared exists. Hebe Co. v. Shaw, 248 U. S. 297, 303, 39 Sup. Ct. 125, 63 L. Ed. 255; Hairston v. Danville & Western Ry. Co., 208 U. S. 598, 607, 28 Sup. Ct. 331, 52 L. Ed. 637, 13 Ann. Cas. 1008.
The chief objections to these acts have been dealt with in Block v. Hirsh. In the present case more emphasis is laid upon the impairment of the obligation of the contract of the lessees to surrender possession and of the new lease which was to have gone into effect upon October 1, last year. But contracts are made subject to this exercise of the power of the State when otherwise justified, as we have held this to be. Manigault v. Springs, 199 U. S. 473, 480, 26 Sup. Ct. 127, 50 L. Ed. 274; Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467, 482, 31 Sup. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671; Chicago & Alton R. R. Co. v. Tranbarger, 238 U. S. 67, 76, 77, 35 Sup. Ct. 678, 59 L. Ed. 1204; Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372, 375, 39 Sup. Ct. 117, 63 L. Ed. 309, 9 A. L. R. 1420; Producers Transportation Co. v. Railroad Commission of California, 251 U. S. 228, 232, 40 Sup. Ct. 131, 64 L. Ed. 239. It is said too that the laws are discriminating, in respect of the cities affected and the character of the buildings, the laws not extending to buildings occupied for business purposes, hotel property or buildings now in course of erection, etc. But as the evil to be met was a very pressing want of shelter in certain crowded centers the classification was too obviously justified to need explanation, beyond repeating what was said below as to new buildings, that the unknown cost of completing them and the need to encourage such structures sufficiently explain the last item on the excepted list.
It is objected finally that Chapter 951, above stated, in so far as it required active services to be rendered to the tenants is void on the rather singular ground that it infringes the Thirteenth Amendment. It is true that the traditions of our law are opposed to compelling a man to perform strictly personal services against his will even when he had contracted to render them. But the services in question although involving some activities are so far from personal that they constitute the universal and necessary incidents of modern apartment houses. They are analogous to the services that in the old law might issue out of or be attached to land. We perceive no additional difficulties in this statute, if applicable as assumed. The whole case was well discussed below and we are of opinion that the decree should be affirmed.
Mr. Justice McKENNA, The CHIEF JUSTICE, Mr. Justice VAN DEVANTER, and Mr. Justice McREYNOLDS dissent.
This case was submitted with Block, etc., v. Hirsh, No. 640, 256 U. S. 135, 41 Sup. Ct. 458, 65 L. Ed. .
The italics are ours and we estimate them by the cases that are cited in their explanation and support. We are not disposed to a review of the cases. We leave them in reference, as the opinion does, with the comment that our deduction from them is not that of the opinion. There is not a line in any of them that declares that the explicit and definite covenants of private individuals engaged in a private and personal matter are subject to impairment by a state law, and we submit, as we argued in the Hirsh Case, that if the state have such powerif its power is superior to article 1, § 10, and the Fourteenth Amendment, it is superior to every other limitation upon every power expressed in the Constitution of the United States, commits rights of property to a state's unrestrained conceptions of its interests, and any question of themremedy against themis left in such obscurity as to be a denial of both. There is a concession of limitation but no definition of it, and the reasoning of the opinion, as we understand it, and its implications and its incident, establish practically unlimited power.
We are not disposed to further enlarge upon the case or attempt to reconcile the explicit declaration of the Constitution against the power of the state to impair the obligations of a contract or, under any pretense, to disregard the declaration. It is safer, saner, and more consonant with constitutional pre-eminence and its pur poses to regard the declaration of the Constitution as paramount, and not to weaken it by refined dialectics, or bend it to some impulse or emergency 'because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.' Northern Securities Co. v. United States, 193 U. S. 197, 400, 24 Sup. Ct. 436, 468 (48 L. Ed. 679).