text:
Foster v. Walton, 5 Watts (Pa.) 378; Laird v. Scott, 5 Heisk. (Tenn.) 314.
37. 1 Stimson's Am. St. Law, Sec. 4592.
38. McNeely v. Rucker, 6 Blackf. (Ind.) 391; City of Baltimore v. Williams, 6 Md. 235 Lancaster v. Dolan, 1 Rawle (Pa.) 231, 18 Am. Dec. 625; Laird v. Scott, 5 Heisk. (Tenn.) 214; Harton v. Lyons, 97 Tenn. 180, 36 S. W. 851. Contra, Fleming v. Townsend, 6 Ga. 103, 50 Am. Dec. 318; Gardner v. Cole, 21 Iowa, 205; Enders v. Williams, 1 Mete. (Ky.) 346. And see Sterry v. Arden, 1 Johns. Ch. (N. Y.) 261; Mellick v. Mellick, 47 N. J. Eq. 86, 19 Atl. 870.
The Statute of 27 Eliz. c. 4, also contained a provision that a conveyance containing a power of revocation in the grantor should be invalid as against a subsequent conveyance by the same grantor to a purchaser for a valuable or good consideration. This provision, or its substantial equivalent, has been adopted in many states;42 but occasion for the application of such statutes has, in England, but seldom arisen, and, in this country, practically never.
39. Beal v. Warren, 2 Gray (Mass.) 447; Cathcart v. Robinson, 5 Pet. (U. S.) 264, 8 L. Ed. 120; Jackson v. Town, 4 Cow. (N. Y.) 603; City of Baltimore v. Williams, 6 Md. 235; Shaw v. Tracy, 83 Mo. 224; 4 Kent's Comm. 463, note.
40. City of Baltimore v. Williams, 6 Md. 235; Gardner v. Cole, 21 Iowa, 212; Gilliland v. Fenn. 90 Ala. 230, 9 L. R. A. 413. 8 So. 15; Cathcart v. Robinson, 5 Pet. (U. S.) 264, 8 L. Ed. 120; 1 Story, Eq Jur. Sec. 427; 2 Pomeroy, Eq. Jur. Sec. 974.
41. Prodgers v. Langham, 1 Sid. 133; Doe d. Newman v. Rusham, 17 Q. B. 723; Gilliland v. Fenn, 90 Ala. 230, 9 L. R. A. 413, 8 So. 15; Fletcher v. Peck, 6 Cranch (U. S.) 87, 3 L. Ed. 162; Reynolds v. Vilas, 8 Wis. 471, 76 Am. Dec. 238.
41'. 1 Stimson's Am. St. Law. Sec. 4593.
590. Transfers by disseisees. By St. 32 Hen. VIII. c. 9,46 it was declared to be unlawful to buy or sell any pretended right or title to any lands or hereditaments unless the vendors or their ancestors, or the persons through whom the claim is derived, have been in possession of the property, or of the reversion or re43. Act July 1, 1898, Sec. 60, as amended June 25, 1910.
45. Bankruptcy Act, Sec. 3; Collier, Bankr. (10th Ed.) 97 et seq.
46. The "Pretended Title Act" (A. D. 1540).
47. See Rawle, Covenants for Title, Sec. 47. Article in 2 Law Quart. Rev. 481, by Prof. Mait-land.
48. Bernstein v. Humes, 60 Ala. 582, 31 Am. Rep. 52; Patterson v. Nixon, 79 Ind. 251; Tabb v. Baird, 3 Call. (Va.) 481; Barry v. Adams, 3 Allen (Mass.) 493; 4 Kent's Comm. 448.
In England, the statute was regarded as invalidating a sale by one who had not been in possession for a year. Doe d. Williams v. Evans, 1 C. B. 717. But 8 & 9 Vict. C. 106, making rights of entry alienable, changed the law in this respect. Kennedy v. Lyell, 15 Q. B. Div. 491; Jenkins v. Jones, 9 Q. B. Div. 128.
49. Stimson's Am. St. Law Sec. 1401.
50. Roberts v. Cooper, 20 How. (U. S.) 467, 15 L. Ed. 969; Lytle v. State, 17 Ark. 608; Mathewson v. Fitch, 22 Cal. 86; Bayard v. McLane, 3 Har. (Del.) 139; Matthews v. Hevner, 2 App. D. C. 349; Doe d. Cain v. Roe, 23 Ga. 82; Bon v. Graves, 216 Mass. 440, 103 N. E. 1023; Farrar v. Fessen-den, 39 N. H. 268; Hall v. Ashby, 9 Ohio, 96; Stoever v. Whitman's Lessee 6 Binn. (Pa.) 416; Hall v. Ashby, 9 Ohio, 96.
Free School v. Fisher, 34 Me. 172; Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430; Cassedy v. Jackson, 45 Miss. 397; Carring-ton v. Goddin, 13 Grat. iVa.) 587; Stewart v. McSweeney, 14 Wis. 468; Sims v. De Graffen-reid, 4 McCord (S. C.) 253; See Schaferman v. O'Brien, 28 Md. 565.
The history and present status of the doctrine are the subject of a valuable article by Professor George P. Costigan, in 19 Harv. Law Rev. 267.
52. Sharp v. Robertson's Ex'rs. 76 Ala. 343; Dubois v. Marshall, 3 Dana (Ky.) 336; Barry v. Adams, 3 Allen (Mass.) 493; German Mut. Ins. Co. of Indianapolis v. Grim, 32 Ind. 249, 2 Am. Rep. 341.
53. See Crary v. Goodman, 22 N. Y. 170; Higinbotham v. Stoddard, 72 N. Y. 94; Stoddard v. Whiting, 46 N. Y. 627; Kreuger v. Schultz, 6 N. D. 310, 70 N. W. 269.
Ky. 516, 7 Am. St. Rep. 613, 4 S. W. 232; Simon v. Gouge, 12 B. Mon. (Ky.) 156; Gunn v. Scovil, 4 Day (Conn.) 234; Hale v. Darter, 10 Humph. (Tenn.) 92.
55. Hopkins v. Paxton, 4 Dana (Ky.) 36; Ross v. Blair, Meigs (Tenn.) 525; Augusta Mfg. Co. v. Vertrees, 4 Lea (Tenn.) 75.
56. Humes v. Bernstein, 72 Ala. 546; Little v. Bishop, 9 B. Mon. (Ky.) 240; Preston v. Breckinridge, 86 Ky. 619, 6 S. W. 641; Hoyt v. Thompson, 5 N. Y. 320; Coleman v. Manhattan Beach Improvement Co., 94 N. Y. 229; Doe d. Williams v. Bennett, 26 N. C. 122.
57. Ward v. Bartholomew, 6 Pick. (Mass.) 409; Jackson v. Gumaer, 2 Cow. (N. Y.) 552; Cassedy v. Jackson, 45 Miss. 407; Hill v. Dyer, 3 Me. 441.
58. Cameron v. Irwin, 5 Hill (N. Y.) 272; Adams v. Buford, 6 Dana (Ky.) 413; Sessions v. Reynolds, 7 Smedes & M. (Miss.) 130; Williams v. Council, 49 N. Car. 206.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


THE PEOPLE, Respondent, v. ISAAC LOGAN et al., Appellants.
Isaac Logan and Billy Eugene Wagner, in pro. per., for Appellants.
Upon request for appointment of counsel on the present appeal the court referred the matter to the Los Angeles Bar Association Committee on Criminal Appeals for a report to the court as to possible merit in the appeal. The matter was assigned to two members of the committee who have made written report to the court stating that the record had been examined and that in the opinion of the attorneys it disclosed no meritorious ground of appeal. Defendants were duly so advised and their time to file a brief was substantially extended. No brief has been filed. Such has been the practice of this court for several years. The services of the committee have been willingly rendered and have been of distinct value to the court.
 Appointment of counsel to represent indigent appellants is not a matter of right as a part of due process. It [137 Cal. App. 2d 333] is discretionary with the court whether counsel should be appointed and a request for appointment should be denied if it clearly appears from the record that the appeal or other matter before the court is devoid of merit. (State v. Sorrentino, 36 Wyo. 111 [253 P. 14]; McCue v. Commonwealth, 103 Va. 870 [49 S.E. 623]; Haywood v. United States, 268 F. 795; Applebaum v. United States, 274 F. 43; Reetz v. Michigan, 188 U.S. 505 [23 S. Ct. 390, 47 L. Ed. 563]; Errington v. Hudspeth, 110 F.2d 384; Moore v. Aderhold, 108 F.2d 729; De Maurez v. Swope, 104 F.2d 758; Gargano v. United States, 137 F.2d 944; Brown v. Johnston, 126 F.2d 727; Lovvorn v. Johnston, 118 F.2d 704, 707.) There is no statutory enactment which requires that counsel be appointed. Whenever the record discloses a question of error in the trial or other proceeding which counsel could in good conscience urge in behalf of the client an appointment has been made. Where counsel have not been appointed the court has made an independent study of the record. We have done so in the present case.
The appellants, Isaac Logan and Billy Eugene Wagner, were convicted of two offenses, namely, conspiracy to violate section 11714 of the Health and Safety Code (furnishing or selling a narcotic to a minor), and in a second count a violation of the same section. It was alleged in the information that the defendants committed certain overt acts in furtherance of the conspiracy, and that they feloniously sold marijuana to Lloyd Arthur Epperly. Logan was accused of and admitted a prior felony conviction. This is an appeal from the judgments and from orders denying motions for a new trial.
Lloyd Epperly testified that he was 17 years old; he received marijuana from Wagner on September 20, 1954, in exchange for $15 previously paid, and that at the time Wagner gave it to him, the defendant Logan was also present. According to the testimony of Epperly and one George Chosner, Epperly had approached defendants two days earlier, and had asked Wagner to obtain some marijuana for him, stating that a friend of his wanted it. Defendant Logan was present while Epperly talked with Wagner. Later that evening both defendants, together with Epperly and Chosner made an unsuccessful trip from Long Beach to Los Angeles where they endeavored to buy some marijuana. They freely discussed its purchase while on this trip. Before going to Los Angeles, the four had stopped at a place known as "The Hutch," [137 Cal. App. 2d 334] where Chosner obtained $15 from one "Tiny" Atkins, for whom the narcotic was to be purchased. The next day Epperly and Chosner together with defendant Logan again drove around to make a purchase, making one or two stops where they made unsuccessful attempts to purchase. Finally they stopped at a grocery store, Logan took the $15 from Chosner and gave it to an unidentified person working in back of the store. Logan told Epperly to get the marijuana at Wagner's house the next evening. The next evening defendant Wagner delivered a brown paper bag containing marijuana to Epperly, who drove to a meeting place in an alley in Long Beach where he handed the bag to Chosner, who in turn gave it to "Tiny" Atkins. Detective Good testified that he had observed the transaction through a crack in a fence and seized the package from Atkins. He recognized Epperly, who was later apprehended. At the trial the contents of the bag were identified by an expert as Indian Hemp, commonly referred to as marijuana. Defendants did not testify nor offer any evidence at the trial.
 It appears from the record that the court in granting the defendants an opportunity to procure new counsel and continuing the matter for that purpose intended that the continuance was of the hearing of the motions for a new trial and that notwithstanding the entry of an order denying the motions a ruling on the motions was held in abeyance. If so, the notice of appeal from the order denying the motions for a new trial was sufficient.  But the motions presented no sufficient grounds for a new trial. The affidavits stated that defendants would have testified and would have called witnesses except for the advice of their attorneys but they did not state that defendants or their witnesses would have given testimony contradictory of that introduced by the People.  And a claim by a defendant that his attorney exercised his own judgment and rejected the suggestions of the client during the trial is not a ground for granting a new trial.
 The affidavits presented by the defendants show that the alleged ground of disagreement between defendants and their attorneys consisted of the expressed belief of the attorneys that the better defense was a claim of entrapment, whereas the defendants profess to have expressed a desire to testify in denial of the charges. The contention that defendants were entrapped was devoid of merit, but it may nevertheless have appeared to the attorneys as more likely to succeed than mere denials of the testimony of the witnesses [137 Cal. App. 2d 336] for the State, which amounted to convincing evidence of defendants' guilt. Moreover, had Logan testified it would have been developed that he had suffered a prior conviction of the sale of narcotics, a circumstance which would have been disastrous if not fatal to the defense. In brief, the record is devoid of any showing that defendants were not well represented at the trial or that they could have presented a meritorious or even a plausible defense. The claims they made of inadequate representation were groundless (People v. Zuccaro, 47 Cal. App. 2d 414 [118 P.2d 40]; People v. Gourdin, 108 Cal. App. 333 [291 P. 701]; People v. Summers, 107 Cal. App. 250 [290 P. 464]; People v. Martin, 128 Cal. App. 2d 361 [275 P.2d 635]; People v. Ives, 17 Cal. 2d 459 [110 P.2d 408]).
 There was direct evidence of acts of the defendants constituting the essential elements of the offenses charged--namely, an unlawful agreement to procure for and sell a narcotic to a minor, followed by the commission of the overt acts alleged. This was an unlawful conspiracy. (Pen. Code, § 182; People v. Benenato, 77 Cal. App. 2d 350 [175 P.2d 296].) There was ample evidence of a sale to a minor.
The record is devoid of error; defendants were accorded a fair trial.
The judgments and orders are affirmed.


Foreign Judgments may be enforced in California in the same manner as California judgments. However, before a foreign judgment may be enforced, it must be recognized by the California Courts. The procedure for recognition of the foreign judgment depends on whether the foreign judgment is classified as a sister state judgment or a foreign country money judgment.
(2)	A state, district, commonwealth, territory, or insular possession of the United States.
(3)	Any other government with regard to which the decision in this state as to whether to recognize a judgment of the government’s courts is initially subject to determination under the Full Faith and Credit Clause of the United States Constitution.
Cal. Code of Civ. Proc. § 1714(a).
Subject to some exceptions, California will recognize a foreign-country judgment to the extent that the judgment both: (1) grants or denies recovery of a sum of money; and under the law of the foreign country where rendered, is final, conclusive, and enforceable. Cal. Code of Civ. Proc. §1715(a). California, however, will not recognize a foreign-country judgment even if the judgment grants or denies recovery of a sum of money, to the extent the judgment is for taxes, a fine, or a penalty. Cal. Code of Civ. Proc. §1715(b).
The procedure for recognition of a sister state judgment is different than that for recognition of a foreign-country money judgment. The judgment creditor with a sister state judgment simply files an application with the superior court in the county where the judgment debtor resides, or, if no judgment debtor resides in the states, in any county, requesting that the judgment be recognized. Cal. Code of Civ. Proc. §§1710.15(a) and 1710.20(a) and (b).
(1)	A statement that an action in this state on the sister state judgment is not barred by the applicable statute of limitations.
(2)	A statement, based on the applicant’s information and belief, that no stay of enforcement of the sister state judgment is currently in effect in the sister state.
(3)	A statement of the amount remaining unpaid under the sister state judgment and, if accrued interest is to be included in the California judgment, a statement of the amount of interest accrued on the sister state judgment (computed at the rate of interest applicable to the judgment under the law of the sister state), a statement of the rate of interest applicable to the judgment under the law of the sister state, and a citation to the law of the sister state establishing the rate of interest.
(4)	A statement that no action based on the sister state judgment is currently pending in any court in this state and that no judgment has previously been entered in any proceeding in this state.
(5)	Where the judgment debtor is an individual, a statement setting forth the name and last known residence address of the judgment debtor. Where the judgment debtor is a corporation, a statement of the corporation’s name, place of incorporation, and whether the corporation, if foreign, has qualified to do business in California. Where the judgment debtor is a partnership, a statement of the name of the partnership, whether it is a foreign partnership, and, if it is a foreign partnership, whether it has filed a statement pursuant to Section 15800 of the Corporation Code designating an agent for service of process.
(6)	A statement setting forth the name and address of the judgment creditor.
Cal. Code of Civ. Proc. 1710.15(b). In addition to the above-referenced statements, the application for recognition shall also include a properly authenticated copy of the sister state judgment. Cal. Code of Civ. Proc. §1710.15(c). The California Judicial Council has approved Form Number EJ-105 which may be used in applying for recognition of a sister state judgment.
Upon the filing of the application for recognition, the clerk shall enter a judgment based on the application in the amount remaining unpaid under the sister state judgment, plus the amount of interest accrued on the sister state judgment and the amount of the fee for filing the application for entry of the sister state judgment. Cal. Code of Civ. Proc. § 1710.25(a). Entry of the judgment is made in the same manner as entry of an original judgment of the California court. Cal. Code of Civ. Proc. §1710.25(b).
Notice of the application for recognition of a sister state judgment is not required to be served on the judgment debtor prior to entry of the judgment, however, once the judgment has been recognized and entered as a judgment with the court, the judgment creditor is required to serve a notice of entry of judgment promptly upon the judgment debtor in the manner provided for service of summons (Cal. Code of Civ. Proc. §§415.10, et seq.). Cal. Code of Civ. Proc. § 1710.30(a). The notice shall be in the form prescribed by the Judicial Council and shall inform the judgment debtor that the judgment debtor has 30 days within which to make a motion to vacate the judgment. Id. The Judicial Council has approved Form Number EJ-110 which may be used to provide notice of entry of judgment.
A writ of execution cannot be issued and the judgment creditor cannot begin enforcement of the recognized judgment until at least 30 days after the judgment creditor serves notice of entry of the judgment on the judgment debtor. Cal. Code of Civ. Proc. §1710.45(a). Not later than 30 days after service of notice of entry of judgment upon the judgment debtor, the judgment debtor may file a motion to vacate the judgment based “on any ground which would be a defense to an action in this state on the sister state judgment, including the ground that the amount of interest accrued on the sister state judgment and included in the judgment entered . . . is incorrect.” Cal. Code of Civ. Proc. §1710.40(a).
(1)	An appeal from the sister state judgment is pending or may be taken in the state which originally rendered the judgment. Under this paragraph, enforcement shall be stayed until the proceedings on appeal have been concluded or the time for appeal has expired.
(2)	A stay of enforcement of the sister state judgment has been granted in the sister state. Under this paragraph, enforcement shall be stayed until the sister state stay of enforcement expires or is vacated.
(4)	Any other circumstance exists where the interests of justice require a stay of enforcement.
Cal. Code of Civ. Proc. §1710.50(a).
If no stay has been entered and more than 30 days have passed from the date when the judgment debtor was served with notice of entry of judgment, the recognized judgment “shall have the same effect as an original money judgment of the court and may be enforced or satisfied in like manner.” Cal. Code of Civ. Proc. §1710.35.
Where a sister state judgment may be entered by the clerk upon filing of an application, recognition of a foreign country money judgment must be initiated either by the filing of an original matter or may be raised by counterclaim, cross-claim, or affirmative defense. Cal. Code of Civ. Proc. § 1718. The party seeking recognition of a foreign-country judgment has the burden of establishing that the foreign-country judgment is entitled to recognition. Cal. Code of Civ. Proc. § 1715(c).
(1)	The judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.
(2)	The foreign court did not have personal jurisdiction over the subject matter.
(3)	The foreign court did not have jurisdiction over the subject matter.
(1)	The defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend.
(2)	The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case.
(3)	The judgment of the cause of action or claim for relief upon which the judgment is based is repugnant to the public policy of the State of California or the United States.
(4)	The judgment conflicts with another final and conclusive judgment.
(5)	The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that foreign court.
(6)	In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.
(7)	The judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment.
(8)	The specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.
(9)	The judgment includes recovery for a claim of defamation unless the court determines that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions.
Cal. Code of Civ. Proc. § 1716(c).
While the initial burden is on the party seeking recognition to establish that the foreign judgment meets the requirements of Cal. Code of Civ. Proc. §1715, the party resisting recognition has the burden of establishing a ground for non-recognition exists. Cal. Code of Civ. Proc. §1716(d).
(1)	The defendant was served with process personally in the foreign country.
(2)	The defendant voluntarily appeared in the proceeding, other than for the purpose of protecting property seized or threatened with seizure in the proceeding or of contesting the jurisdiction of the court over the defendant.
(3)	The defendant, before the commencement of the proceeding, had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved.
(4)	The defendant was domiciled in the foreign country when the proceeding was instituted or was a corporation or other form of business organization that had its principal place of business in, or was organized under the laws of, the foreign country.
(5)	The defendant had a business office in the foreign country and the proceeding in the foreign court involved a cause of action or claim for relief arising out of business done by the defendant through that office in the foreign country.
(6)	The defendant operated a motor vehicle or airplane in the foreign country and the proceeding involved a cause of action or claim for relief arising out of that operation.
Cal. Code of Civ. Proc. § 1717(a). The above-referenced list is not exclusive and the courts of California are free to recognize bases of personal jurisdiction other than those listed above as sufficient to support a foreign-country judgment. Cal. Code of Civ. Proc. § 1717(b).
(a)	Conclusive between the parties to the same extent as the judgment of a sister state entitled to full faith and credit in this state would be conclusive.
(b)	Enforceable in the same manner and to the same extent as a judgment rendered in California.
Cal. Code of Civ. Proc. §1719.
To the extent that the foreign-country judgment is rendered in a currency other than the currency of the United States, the Uniform Foreign-Money Claims Act (“UFMCA”) provides that except in the case of assessed costs, “a judgment or award on a foreign-money claim shall be stated in an amount of the money of the claim.” Cal. Code of Civ. Proc. § 676.7(a). Such a judgment is payable in that foreign money or, at the option of the judgment debtor, “in the amount of United States dollars which will purchase that foreign money on the conversion date at a bank-offered spot rate.” Cal. Code of Civ. Proc. §676.7(b). Costs assessed by the California court shall be entered in United States dollars. Cal. Code of Civ. Proc. §676.7(c).
Cal. Code of Civ. Proc. §676.7(f).
California Code of Civil Procedure section 676.9 provides that with respect to a foreign-money claim, recovery of pre-judgment or pre-award interest and the rate of interest to be applied in the action or distribution proceeding, except as provided in subdivision (b), are matters of the substantive law governing the right to recovery under the conflict-of-laws rules of California. Cal. Code of Civ. Proc. §676.9(a). Subdivision (b) requires the court or an arbitrator to “increase or decrease the amount of pre-judgment or pre-award interest otherwise payable in a judgment or award in foreign money to the extent required by the law of [California] governing failure to make or accept an offer of settlement or offer of judgment, or conduct by a party or its attorney causing undue delay or expense.” Cal. Code of Civ. Proc. §676.9(b).
The judgment or award entered on a foreign-money claim bears interest at the rate applicable to judgments of California. Cal. Code of Civ. Proc. § 676.9(c). A “foreign-money claim” means “a claim upon an obligation to pay, or a claim for recovery of a loss, expressed in or measured by a foreign money,” and for the purposes of this article would include a foreign judgment expressed in a foreign money. Cal. Code of Civ. Proc. §676.1(6).
Once a foreign-country money judgment is recognized and judgment is entered on it, or a judgment is entered on a sister-state judgment under the full faith and credit clause of the United States Constitution, either judgment may be enforced in the same way and in the same manner as a California State judgment.


This Good360 Master Donation Acceptance Agreement (this “Agreement”) contains the terms and conditions that Good360, a Virginia corporation, and the Organization (as defined below) agree will govern the donation by Good360 to the Organization, and the transfer, delivery, receipt, storage, and use by the Organization, of items previously donated to Good360 (the “Donated Goods”). The Donated Goods shall be designated on an order inventory confirmation generated upon the Organization’s placement of an order through Good360’s website (www.Good360.org) or otherwise designated in accordance with a Program (as defined below).
By checking “I AGREE” or “I ACCEPT TERMS AND CONDITIONS” you acknowledge and agree that you have read and accept the terms and conditions of this Agreement in its entirety on behalf of, and as the binding obligation of, your organization (the “Organization”). In addition, you represent and warrant that you are authorized to enter into this Agreement on the Organization’s behalf.
Good360 and the Organization may each be referred to herein as a “Party” and together as the “Parties”.
The Organization represents and warrants to Good360 that all materials that the Organization provided to Good360 in support of the Organization’s application to become a member of Good360 are true, correct and complete. The Organization shall notify Good360 if any event or change occurs that results in the foregoing representation and warranty no longer being accurate.
The Organization represents and warrants to Good360 that the Organization (1) is a tax‐exempt public charity as described in Internal Revenue Code (“IRC”) § 501(c)(3) and not a private foundation, (2) is not subject to a revocation of tax-exempt status or other adverse tax determination from the Internal Revenue Service, (3) is not currently and have not formerly been subject to any investigation or examination by any state or local authority, including but not limited to law enforcement and charity regulators, or any federal authority, including but not limited to the Internal Revenue Service and Federal Trade Commission, and (4) is not aware of any threatened revocation, adverse tax determination, investigation, or examination. If the Organization becomes the subject of any such revocation, adverse tax determination, investigation, or examination, or any written threat thereof, the Organization shall notify Good360 within five (5) days of such determination, the initiation of such investigation or examination or the Organization’s receipt of a written threat.
The Organization shall (1) refrain from supporting or opposing candidates in political campaigns in any way, (2) ensure that the Organization’s net earnings do not inure in whole or in part to the benefit of private shareholders or individuals (including without limitation board members, officers, key management employees, or other insiders), (3) not further non-exempt purposes (such as purposes that benefit private interests) more than insubstantially, (4) not be organized or operated for the primary purpose of conducting a trade or business that is not related to your exempt purpose(s) and (5) not devote more than an insubstantial part of the Organization’s activities attempting to influence legislation.
Good360 reserves the right to immediately suspend or immediately terminate the Organization’s status as a member of Good360 for any reason in Good360’s sole discretion. Only current Good360 members who have not been suspended are eligible to obtain Donated Goods from Good360, either directly or under a Program. Suspension or termination of the Organization’s status as a member of Good360 shall not be Good360’s exclusive remedy for the Organization’s violation of this Agreement (or any other agreement between Good360 and the Organization) and shall not preclude Good360’s simultaneous or subsequent exercise of any right, power, or remedy that Good360 may have under this Agreement (or any such other agreement), at law or in equity.
Good360 shall deliver Donated Goods to the Organization at such location as Good360 and the Organization agree. Donated Goods must be received by the Organization at the Organization’s principal place of business (or as otherwise required in connection with a Program).
Upon delivery (or other means by which the Organization takes possession of Donated Goods in connection with a Program), title in and to Donated Goods shall transfer from Good360 to the Organization, subject to the terms and conditions of this Agreement. Good360 will not accept and the Organization shall not provide to Good360 anything of value in exchange for Donated Goods.
The Organization understands and agrees that any Donated Goods the Organization may receive from Good360 will be received by the Organization in “as-is” condition, with all faults and defects, latent and otherwise. Good360 makes no warranty, covenant or representation, expressed or implied, or arising by operation of law, regarding Donated Goods, including without limitation, any warranty as to their design, condition, merchantability, or fitness for any particular use or purpose. Good360 shall not be liable in any event for any direct, actual, special, indirect, incidental or consequential damages or losses of any kind, nature or description whatsoever, regardless of whether arising from breach of contract, warranty, tort, strict liability or otherwise, suffered or incurred by the Organization or a third party as a result of the transfer, receipt, storage, transportation or use of Donated Goods, even if the other party is advised of the possibility of such loss or damage or if such loss or damage could have been reasonably foreseen.
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
The Organization understands and agrees that the Organization is solely responsible for the correct storage, transportation (after receipt by the Organization) and disposal of Donated Goods. The Organization shall store, transport and dispose of Donated Goods in accordance with the applicable manufacturer instructions and guidelines, all applicable laws, ordinances, and regulations relating to the storage, transportation and disposal of Donated Goods, and highest industry standards.
The Organization shall store Donated Goods, and distribute Donated Goods from, a business location.
The Organization shall use Donated Goods solely to further a purpose or function constituting the basis for the Organization’s exemption under IRC § 501 and solely for the care of the ill, needy or infants, in compliance with IRC § 170(e)(3) and IRC regulations § 1.170A-4A(b)(2) and (3) so that Good360’s donors may qualify for the enhanced inventory donation deduction under IRC § 170(e)(3). The Organization acknowledges that Donated Goods must be used to alleviate or cure an existing illness, to alleviate or satisfy an existing need, or to perform parental functions and provide for needs of infants as set forth in the IRC regulations. The Organization will ensure that Donated Goods will be used in accordance with these requirements.
The Organization further agrees that Donated Goods will be used in a manner that complies with all applicable laws, ordinances, and regulations, including that they will not be used to further or with the intent to commit a terrorist act(s).
The Organization shall not return any Donated Goods to the original donor or the original donor’s retail store.
The Organization shall not, unless with Good360’s prior written consent, ship or redistribute any Donated Goods to any location outside of the United States of America. For any Donated Goods that the Organization wishes to ship or redistribute to any location outside of the United States of America, the Organization must first obtain Good360’s written approval for such shipment or redistribution of the specific Donated Goods, which may be granted or withheld in Good360’s sole discretion. If you desire such an approval, please complete Good360’s International Shipment Application as available on Good360’s website.
The Organization shall maintain accurate books and records of all Donated Goods documenting the distribution of Donated Goods and the purpose of such distribution. Your books and records shall include, but are not limited to, accurate records that reflect the total amounts received and distributed (or used) and outline the procedures the Organization uses to determine that the Donated Goods are used solely for the care of the ill, needy, or infants. The Organization shall keep such books and records for at least four (4) years after the end of the year of the receipt of such Donated Goods, or for such longer period as may be required by applicable federal, state, or local tax regulations.
Upon reasonable notice, the Organization shall promptly make such records available to Good360 or Good360’s designee for inspection, audit, or copying upon Good360’s request.
The Organization shall promptly provide adequate substantiation and records of the Organization’s distribution of Donated Goods to the Internal Revenue Service and/or Good360 upon request.
In addition, the Organization shall comply with all of Good360’s reporting and record keeping requirements for the Organization, as set forth in notices from Good360, including requirements related to IRC § 170(e)(3) and IRC regulations § 1.170A-4A(b)(2) and (3). Such reporting requirements include the provision of certain information in connection with the Organization’s ordering and/or receiving Donated Goods. Good360 and the donor of the Donated Goods to Good360 may rely on the accuracy of information reported by the Organization and the Organization’s records.
The Organization shall adhere to a nondiscrimination policy in accordance with applicable state and federal law.
The Organization shall indemnify and hold harmless Good360, its donors, its affiliates, and each of its respective officers, directors, employees, agents, counsels, successors, and assigns (collectively, “Indemnified Party”) from and against any and all losses, costs, damages, expenses, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, liabilities, or expenses of whatever kind, including reasonable attorneys’ fees (collectively, “Losses”), that are incurred by or claims against Indemnified Party, directly or indirectly, as a result of or in any way arising from: (i) any material breach by the Organization of the terms of this Agreement (or any agreement between the Organization and Good360 that relates to a Program); (ii) Donated Goods, including without limitation the selection, delivery, possession, use, operation, or return of Donated Goods, including, without limitation, Claims relating to the bodily injury or the death of any person. The Organization will reimburse any Indemnified Party for all Losses incurred by such Indemnified Party in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened litigation to which any Indemnified Party is a party. Such expenses shall be reimbursed on an as-incurred basis. The foregoing Agreement shall be in addition to any rights that any Indemnified Party may have at common law or otherwise including, but not limited to, any right to contribution. Each of the Parties shall give the other prompt written notice of any Claim of which it becomes aware.
The Organization shall make no mention, orally or in writing, to the public, the media, or anyone else regarding Good360, its donation programs, or its donors in any manner or media without the express written consent of Good360. The Organization shall coordinate all Press Statements that mention Good360, its donation programs or its donors, through Good360’s press office (press@good360.org), which will endeavor to respond within 48 business hours to any and all inquiries. Press statements include, but are not limited to: Press releases, Media advisories, Interviews, Blogs, Webcasts, Newsletters and other materials.
During the term of this Agreement and for a period of twelve (12) months immediately following the termination of this Agreement, the Organization shall not, either directly or indirectly, on its behalf or on behalf of other individuals or entities, solicit or attempt to solicit any entity who the Organization is aware or should be aware is a Good360 donor for the donation of products of any kind without the express written consent of Good360.
Good360 currently makes available programs (each a “Program” and, collectively, “Programs”), described on Good360’s website, under which Good360 members can obtain Donated Goods (in addition to ordering specific Donated Goods through Good360’s website) or may be permitted to distribute Donated Goods to other nonprofit organizations that are Good360 members. Good360 reserves the right, in its sole discretion, to terminate or modify Programs and to add additional Programs. If the Organization wishes to participate in a Program, please follow the instructions for applying for the Program on Good360’s website. Good360 may withhold approval of the Organization to participate in a Program for any reason, in Good360’s sole discretion. Good360’s approval of the Organization’s application to participate in a Program is effective only as to such Program and only upon (i) Good360’s issuance to the Organization of written notice of approval and (ii) the Organization’s execution and delivery to Good360 of all documentation required by Good360 as a condition to participation in the Program. Unless you are a participant in a Program, this Agreement only permits the Organization to order specific Donated Goods through Good360’s website.
Should any dispute arise regarding this Agreement which a Party determines cannot be settled by the Parties, the Parties agree that any and all actions brought to enforce the provisions of this Agreement shall be brought in a court of competent jurisdiction located in the Commonwealth of Virginia. This Agreement will be governed by and construed according to the laws of the Commonwealth of Virginia without consideration of any conflicts of laws principles. Good360 may terminate this Agreement without cause immediately upon written notice to the Organization; the Organization shall have no right to terminate this Agreement. The Distribution Records, Indemnification, Media/Communications and these Miscellaneous provisions shall survive any termination of this Agreement. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective heirs, executors or administrators, beneficiaries, personal or legal representatives, successors and assigns. This Agreement does not confer and shall not be deemed to confer or create any rights in and for third parties (other than the rights of Indemnified Parties as provided above). This Agreement sets forth all of the promises, agreements, and understandings of the Parties with respect to the matters described herein, and there are no promises, agreements, or understandings, oral or written, express or implied, between them with respect to such matters other than as set forth herein. Any and all prior promises, agreements, and understandings among the Parties with respect to the matters described herein are hereby revoked. The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any one or more of the provisions hereof shall not affect the validity and enforceability of the other provisions hereof. This Agreement shall not be modified or amended except by further writing signed by both Parties (or, if proposed by Good360, confirmed electronically by the Organization in the manner required by Good360). The headings or other captions contained in this Agreement are for convenience of reference only and shall not be used in interpreting, construing, or enforcing any of the provisions of this Agreement. The Organization shall pay Good360 all actual costs and expenses incurred by Good360 in connection with defending or prosecuting any actions or proceedings (judicial or otherwise) arising out of this Agreement, including but not limited to reasonable attorney fees and costs. Each Party agrees that it has not received any tax advice from the other Party and that it is aware that it may wish to consult a tax advisor with respect to IRC § 170(e)(3) and related IRC regulations.


One of the great things about being a member of the Manassas City Council is that you don’t have to follow the law. The Mayor doesn’t notice when councilmembers trample on the Code of Virginia, and as long as the action is for the benefit of some liberal cause the City Attorney Martin Crim, who is paid $200 per hour to attend council meetings and provide what passes for “legal counsel,” will compliantly look off into the distance and pretend he’s not listening. There really is no better place to be if you want to funnel taxpayer money to your own pocket.
Action Item Twelve on last Monday’s agenda involved the city gifting taxpayer money to non-governmental entities that aren’t performing work for the city. In addition to handing money over to the Hylton Center to defray their operational expenses (something we were told would never be necessary when the city took on their capital costs), the city once again decided to hand over public money to a private ballet school that competes with other dance schools in the area that don’t receive public money. Last year Manassas turned over $18,000 to the Manassas Ballet Company, but that wasn’t good enough this time around, so this year the council voted to increase that amount to $23,000.
Mayor Parrish sits on the Board of Directors for the Manassas Ballet, but since this wasn’t a tie vote he didn’t cast a vote and didn’t violate any law if you take a literal view of Virginia Code §15.2-953. Councilman Mark Wolfe is the Executive Director of the Manassas Ballet (in an unpaid capacity we’re told) but his wife Amy Wolfe is the salaried Artistic Director. Wolfe voted in favor of this gift to an entity which pays a salary to his wife. The failure to disclose a personal conflict of interest in this matter and his subsequent vote in favor of this gift violates Virginia Code § 2.2-3107, § 2.2-3112, § 2.2-3115(H) and § 2.2-3112 which govern conflicts of interest within local governmental bodies. Violations of that part of the Virginia Code are punishable as Class 1 misdemeanors, and a knowing violation could result in a person being removed from office.
§ 2.2-3122. Knowing violation of chapter constitutes malfeasance in office or employment.
Any person who knowingly violates any of the provisions of this chapter shall be guilty of malfeasance in office or employment. Upon conviction thereof, the judge or jury trying the case, in addition to any other fine or penalty provided by law, may order the forfeiture of such office or employment.
You can see the part of the meeting where this happened here, starting at the 56:52 mark and going to 1:05:36.
It boggles the mind to consider that any elected official could possibly conceive of voting on a matter in which they had a personal interest just from a personal ethics standpoint. It shouldn’t take a provision of the legal code to make an elected official realize that they might not want to vote on a matter where they get cash from the government body on which they sit. There is a provision of code however that specifically proscribes that kind of behavior, one that Wolfe is quite aware of given that he has recused himself from votes in the past, and one that a $200 an hour attorney licensed in Virginia and whose practice of law almost entirely involves giving legal council to the City of Manassas should damned well know about.
How the heck did everyone suddenly get a case of the stupids?
Perhaps it was just inconvenient to comply with the law that Monday night. Maybe most of our elected officials are just utterly incompetent and cannot spot such a huge conflict of interest. Perhaps even some space alien kidnapped the city attorney, replaced him with a simulacrum entirely unfamiliar with the Virginia Code and is now subjecting poor Martin Crum to horrific experiments. I don’t know why the law was trampled on like this, only that it was and those in attendance should have darned well known better.
What I do know however is that if this isn’t fixed in short order criminal complaints are going to be sworn out and Mark Wolfe is going to be getting a summons to appear in court. The taxpayers aren’t going to stand for this sort of chicanery.
Note this item from the Board meeting yesterday; Item 5.D. arts grants awards. Even the arts grants panel members apparently supported a cap on grants to any single group of $50,000 to keep more money available for small and new organizations. The only group affected by the cap was Wolfe’s ballet. Staff decided to waive the cap so Peacor, et. al. could give Wolfe an extra $8,234.40. Nearly $60,000 of taxpayer money to subsidize a private dance school whose performances at the Hylton Center are attended by only a tiny fraction of the PWC population. $60,000 would hire an entry-level teacher or police officer. Instead, we continue to line Wolfe’s pockets.
UPDATE 2: The Washington Post picked up the story, revealing that the day after the vote Wolfe submitted his disclosure of an interest in the vote that he was legally required to provide prior to the vote. And that somehow makes this all better. Wolfe’s story is that because other groups were getting funded in addition to the Manassas Ballet it was OK for him to vote on a matter in which he still had a personal financial interest. Now the City Attorney is trying to figure out a way to justify what happened so this vote won’t have to be tossed out, which shockingly is taking quite a bit of time to figure out.
If there’s a question of what the law means, which Wolfe alleges in the article, there’s a venue established to decide exactly that kind of question. It’s called a court of law. Let’s have a trial.
UPDATE 3: The Manassas City Council has decided to address this by having a “do over” vote on Monday, July 8th. If only the rest of us were so lucky to just “do over” our willfully unlawful behavior.
Here we go again. This is an individual with no shame and no regard for the law. Recall his hiring of illegal dancers for his ballet as well, will someone call the FBI on this guy please!
Wolfe and his merry band of taxpayer-funded freeloaders at the Hylton Arts Debacle and Historic Manassas Incorporated and old town restaurants such as Carmelos are a greedy testament to how Rino Republican politics works to help the rich in this City.
Shame on you mayor and council members who supported this, why do you let this guy use you? You all look like suckers.
It wouldn’t take much to clinch an investigation: IF WOLFE AND HIS WIFE HAVE BEEN FILING JOINT RETURNS TO THE IRS ON THEIR PERSONAL INCOME, THEN HE HAS BROKEN THE LAW - no buts, no ifs, no nothing.
Let us get this straight. If Wolfe and his spouse have broken the law together, does this mean that not only they can be prosecuted (as well as the Ballet), but the Mayor (for knowingly supporting them) and Mr. Stewart (for the same)? Enlighten me on the law. I’m just a housewife.
Is this the little wrench that we need to get rid of these corrupt politicians - now (and forever)?
Mad May: it depends. Most attorneys would not touch this with a stick. Not only is there little initial money in morality, but the sheer protection factor is daunting. Sure, Wolfe and Parrish have broken the law, and surely they will get away with it. They are despicable characters for having done it. But do you want to spend your life hunting them down? I wouldn’t. What I would do is file with the the Magistrate’s office, so that you will have done everything possible. The Magistrate may be in bed with Corey or Mark, but in the long run if you have filed with them, they may have to face the music as well.
Sheryl Bass is the president of the Manassas Ballet and a former City Council member (until Ian Lovejoy kicked her to the curb last election). She has voted to send her friends the Wolfes money, she must wear the “tutu taint” too.
Between PWC-McCoart and Manassas we sure have a lot of criminals. Too many to meet the laws of of probability. It can’t be the perception or conspiracy thinkers among bloggers? Very unusual.
But you keep reading, right?
I seem to recall that a FOIA investigation demonstrated the Ballet’s guilt in hiring illegal aliens, even after they were told by USCIS that one particular dancer had been ordered to return to Russia. I’m sure that Corey and Hal must have aksed Wolfe, “did you do this” and I’m equally sure that Wolfe must have denied it - and that was good enough for Corey and Hal. Or… scenario 2: You don’t suppose that the BOCS and the Manassas City Council are deliberately letting him get away with this - even at the risk of becoming co-defendants after the fact? Maybe the extra 8 thousand from Peacor was not just out of particular love of the dance??
By the way, does anyone know WHO put in the request to the BOCS for the extra funds beyond the cap? Do we have a right to know who is the go-between, or did Wolfe himself just call up and say - hey, that’s not enough dough?
UPDATE 2 (above): Why didn’t anyone else in the voting process look straight at Mr. Wolfe and say, we all know that you are voting on funding that you yourself are going to receive. Perhaps you’d better abstain. …? Everyone on that council knows that Wolfe receives funding from them. ARE WE SAYING THAT NO ONE KNEW WHAT WOLFE WAS DOING, AS HE DID IT? Amazing.
Watch the video link - Aveni did just that, he called Wolfe out on it - no one else said a thing or supported Aveni!
The Mayor then called for a voice vote to allow the vote to pass without singling out Wolfe it would seem?
Randolf corrected the Mayor and asked for a voice vote.
anon @ 11:14 — Just watched it, thanks for the tip. Bravo, Mr. Aveni. It seems there is indeed someone with ethical sense on that council. Pity about the rest of them.
Wolfe as an elected official certainly has influence over staff, as does the mayor being on the ballet board, this influence rxtends to the county as well. Does anyone think the ballet would get almost $80K combined if not for this? Also, as has been pointed out, former council woman Bass is the president of the ballet. This one stinks, badly.
So if Wolfe determined that it was improper or illegal to vote on city disbursements for the Manassas Ballet last year, why is it proper or legal for him to do so now? Is it because someone else is ghost-writing the application grants for Wolfe now?
Wolfe needs to vote this year because Sheryl Bass is gone and it needs 4 yes votes to pass, he doesn’t have th e votes and he knows it.
When did ballet become a “liberal cause” ? I’ve always thought it rather neutral, politically. I followed the link and it just put up some really bizarre, schoolboy constitutional analysis that dated back to February, but no mention of ballet at all.
I suppose one might find some ballet works coming out of Communist China or Stalinist Russia that carry a lot of political freight (although I would hardly classify those as “liberal”), but, with that exception proving the rule, the ballet I have enjoyed over the decades is fairly frou-frou stuff with fairies, sorcerers, swans, etc.
Scout: In the context of passage in which the phrase “liberal cause” is found, above, it refers not to the “ballet”, but to a city attorney who conveniently looks the other way while a fraudulent vote is taken to line the pockets of a man who has made suckers of the Manassas City Council and the BOCS. While you or I might have chosen a term such as “duplicitous” or perhaps “bamboozling” instead of “liberal”, let us not loose sight of the point. Happy to hear the lecture on ballet, but you’ve gotta admit that $23,000 is indeed a “liberal” amount of money to give away to a man who violates state and federal law just whenever it suits him… (OK, now I have used the word out of context … but the cause cannot be said to have been a “conservative”, or?
I see the slick fart concern trolls are sinking their teeth into yet another conservative blog.
Wonder when the rest of the pretend Republican sock puppets will show up?
What about Amnesty and the Gang of Eight Traitors?
eff and cynic: who are the gang of eight, and what is a slick fart concern troll? Just curious - you don’t hear that sort of thing everyday. Somehow this blog turned into weird stuff, when all anybody wanted to do was to get rid of a corrupt politician that was slurping up our money.
Not familiar with the slick stuff. However, if you are concerned about “slurping up our money” then have to conclude that you are against this just passed by the Senate Immigration Bill which is nothing more than a collection of packaged payoffs to various interest groups that favor Amnesty. Too many in Congress represent the interest and concerns of the illegals quiet well while the interest and concerns of the Citizens are ignored or never even considered.
Just passed Senate Bill if passed by the House and then signed into law - well it is just a replay of the 1986 Amnesty debacle.
Our complaint here is only about Councilman Mark Wolfe and the Manassas Council, who knowingly allowed him to vote on a matter than would reward him personally. — (despite a valiant attempt by Mr. Aveni to stop him) — We are concerned that Mr. Wolfe still is allowed to hold public office, after clear violations of the law (yes, including defiance of a USCIS ruling several years back - a matter which both the City and the Council have allowed to “blow over”). Personal beliefs and opinions about this or that formal decision are irrelevant, however. The law is the law, no matter how anyone may think or vote - and no matter what office they now hold. Mr. Wolfe needs to go - now - before he finds some other way of offending the public.
By the way, does anyone know the outcome of the “decision” to allow or reject the vote? Shouldn’t there also be a decision pending about whether or not Wolfe has broken the law at the State level?
Quick, everyone look at our Governor. and his wife There is an example of what not to accept in public officials. Then let us use that same evaluation against Councilman Wolfe and Attorney Crim and Mayor Parrish. Let me know how that works for ya.
As a County resident, I would like to know why my County elected officials allow a city resident, Mark Wolfe, to head up the county taxpayer funded County arts panel which then awarded his wife’s city located ballet, The Manassas Ballet, the largest grant, seemingly with no questions asked and no strings attached?
Hal Parrish the current mayor said there will be revote on this funding pending attorney review and all six council members being present. What a joke.
He doesn’t actually head up the panel that awards the grants - those are just friends of his. The panel is assisted in its labors by an “arts liaison”. What Wolfe heads up is the arts council - that’s a loose pack of arts folks who are all looking for county money. They seem happy to have him as their guiding light, because he’s been doing that since before the dawn of time. Oddly enough, they don’t seems to care that he grabs money that is rightly theirs. They’ve been told, but they keep on electing him. Must be something in the water.


Respondent States received funds as part of the federal grant-in-aid prog1am under Title I of the Elementary and Secondary Education Act of 1965 (ESEA) a program designed to improve the educational opportunities available to disadvantaged children. Subsequently, federal auditors determined that each State had misapplied the funds. The Education Appeal Board (Board), while modifying the auditors' findings, assessed deficiencies against both States. The Secretary of Education (Secretary) declined to review the orders establishing the deficiencies, and, after a period for comment, the orders became final. Both States filed petitions for review in the Court of Appeals, which consolidated the cases and held that the Department of Education did not have the authority to issue the orders.
1. The Court of Appeals had jurisdiction of the cases under both § 195 of ESEA -- which permits judicial review in the courts of appeals of the Secretary's final action with respect to audits -- and § 455 of the General Education Provisions Act (GEPA) -- which permits such review of actions of the Board. In the absence of an appealable collateral order, federal courts may exercise jurisdiction only over a final order of the Department of Education. Here, the fact that the Board's order merely established the amount of the deficiencies, leaving for further "discussion" the method of repayment, did not render the orders less than "final." The agency's determination of the deficiencies represented a definitive statement of its position, determining the rights and obligations of the parties. Pp. 461 U. S. 777-780.
2. The provisions of § 207(a)(1) of ESEA and § 115 of GEPA -- which required payments of federal grants to States under ESEA to take into account or make adjustments for any overpayments or underpayments in previous grants -- in effect during the periods in which the audits in these cases were conducted gave the Government the right to recover misused funds granted to a State under Title I of ESEA. Pp. 461 U. S. 780-790.
(a) The plain language of the statutes recognized this right, and the legislative histoly suppolts this reading. Pp. 461 U. S. 782-787.
(b) Even if § 415 were interpreted to cover payments made "accidently," it covers misused payments. Grants of misused funds result from the "accident" of the Secretary's reliance on assurances by the State that it will use the funds in a program that complies with Title I, when in fact the recipient misuses the funds. P. 461 U. S. 787.
(c) To construe §§ 207(a)(1) and 415 to provide for liability does not leave meaningless § 185 of the Education Amendments of 1978, which was enacted after the audits here occurred and makes explicit the Secretary's authority to recover funds misspent by the recipient State. On the contrary, § 185 plays an important role in specifying the procedures to be followed in determining the amount of the deficiency and in collecting it. Pp. 461 U. S. 788-790.
3. Imposition of liability fo misused funds does not intrfere with state sovereignty in violation of the Tenth Amendment. Requiring States to honor the obligations voluntarily assumed as a condition of federal funding before recognizing their ownership of the funds does not intrude on their sovereignty. If the conditions for receiving the funds are valid, the State has no sovereign right to retain the funds without complying with those conditions. Pp. 461 U. S. 790-791.
4. The initial determination of the existence and amount of the liability for funds misused by a State is to be made administratively by the Department of Education. And the State may seek judicial review of such determination in the courts of appeals as to whether the Secretary's findings are supported by substantial evidence and reflect application of the proper legal standards. Pp. 461 U. S. 791-792.
662 F.2d 208, reversed and remanded.
O'CONNOR, J., delivered the opinion for a unanimous Court. WHITE, J., filed a concurring opinion, post, p. 461 U. S. 793.
In this case, we consider both the rights of the Federal Government when a State misuses funds advanced as part of a federal grant-in-aid program under Title I of the Elementary and Secondary Education Act and the manner in which the Government may assert those rights. We hold that the Federal Government may recover misused funds, that the Department of Education may determine administratively the amount of the debt, and that the State may seek judicial review of the agency's determination.
August, 1973, and Pennsylvania for the period July 1, 1967, through June 30, 1973, to ensure compliance with ESEA and the regulations promulgated under ESEA, federal auditors determined that each State had misapplied funds. After review requested by the States, the Education Appeal Board (Board) modified the findings of the auditors and assessed a deficiency of $1,031,304 against New Jersey and a deficiency of $422,424.29 against Pennsylvania. The Secretary declined to review the orders establishing the deficiencies, and, after a period for comment, the orders became final. See App. to Pet. for Cert. 57a, 86a-87a. Both States filed timely petitions for review in the United States Court of Appeals for the Third Circuit, which consolidated the cases and held that the Department did not have the authority to issue the orders. New Jersey Dept. of Educatio v. Hufstedler, 662 F.2d 208 (1981). It therefore did not reach New Jersey's arguments that the State had not, in fact, misapplied the funds, id. at 209, or Pennsylvania's arguments challenging the agency's rulemaking procedures and its application of ESEA's limitations provision, ibid.
(1949), the federal courts may exercise jurisdiction only over a final order of the Department. We therefore must determine whether this case meets that requirement.
Co., 449 U. S. 232, 449 U. S. 239 (1980); Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U. S. 62, 400 U. S. 71 (1970). Review of the agency's decision at this time will not disrupt administrative proceedings any more than review of a trial court's award of damages interferes with its processes. Indeed, full review of the judgment may expedite the collection process, since the States know their ultimate liability with certainty. The agency's determination of the deficiency here represented a definitive statement of its position, determining the rights and obligations of the parties, see Standard Oil Co., supra, at 449 U. S. 239 (explaining Abbott Laboratories v. Gardner, 387 U. S. 136 (1967)); Port of Boston, supra, at 400 U. S. 71; Pennsylvania R. Co. v. United States, 363 U. S. 202, 363 U. S. 206 (1960). Therefore, the Court of Appeals properly took jurisdiction of the case, and we too have jurisdiction to address the merits.
"The Commissioner shall, subject to the provisions of § 208 [dealing with inadequate appropriations], from time to time pay to each State, in advance or otherwise, the amount which the local educational agencies of that State are eligible to receive under this part. Such payments shall take into account the extent (if any) to which any previous payment to such State educational agency under this title (whether or not in the same fiscal year) was greater or less than the amount which should have been paid to it. "
"[S]ince the State is given no authority to retain excess sums paid to it under the title, any excess paid to a State would have to be returned or taken into account in making subsequent payments to the State."
"Even though there may be difficulties arising from recovery of improperly used funds, those exceptions must be enforced if the Congress is to carry out its responsibility to the taxpayer."
Moreover, this interpretation of § 207(a)(1) and § 415 enjoys the support of later Congresses. Of course, the view of a later Congress does not establish definitively the meaning of an earlier enactment, but it does have persuasive value.
"[T]itle I, ESEA . . . and [the] regulations currently provide for two main enforcement mechanisms at the Federal level: first, the withholding of title I finds from a State or local educational agency when a violation is discovered; and second, the repayment of misspent funds after an audit. . . . "
"[The] repayment authority following an audit has been used in the last couple of years on a number of occasions, and has been an effective measure. . . . Approximately one-third of these cases have reached final resolution and have required repayment."
"The proposed amendments would . . . solve the problems with the existing audit repayment . . . authority."
limiting the liability of state and local educational agencies for refunds to those payments received by them within five years before the final written notice of liability. Pub.L. 93-380, § 106, 88 Stat. 512, 20 U.S.C. § 884. [Footnote 13] Pennsylvania has argued that this provision has general applicability, and that Congress drafted it to cover other programs, which explicitly impose liability on recipients for misused funds. Brief for Respondent Pennsylvania 32. While the provision, by its terms, does apply to a number of programs administered by the Secretary, the State's argument fails, for both the statutory provision and the legislative history specifically refer to grants under Title I of ESEA, and the legislative history identifies the recent audits under Title I as the source of the Committee's concern. See H.R.Rep. No. 93-805, pp. 79, 156 (1974).
"The Secretary shall adopt procedures to assure timely and appropriate resolution of audit findings and recommendations arising out of audits. . . . Such procedures shall include timetables for each step of the audit resolution process and an audit appeals process. Where, under such procedures, the audit resolution process requires the repayment of Federal funds which were misspent or misapplied, the Secretary shall require the repayment of the amount of funds under this subchapter which have been finally determined through the audit resolution process to have been misspent or misapplied. Such repayment may be made from funds derived from non-Federal sources or from Federal funds no accountability of which is required to the Federal Government. Such repayments may be made in either a single payment or in installment payments over a period not to exceed three years."
"[N]othing in these new provisions should be interpreted as radically changing the present relationship of the Federal government to the States. . . . These amendments, rather, are meant merely to lay out responsibilities more clearly. . . ."
New Jersey, relying on our decision in National League of Cities v. Usery, 426 U. S. 833 (1976), also urges that the imposition of liability for misused funds interferes with state sovereignty, in violation of the Tenth Amendment. It views our construction of the statute as presenting it with "unpalatable" alternatives: making a special appropriation to repay the misused funds, or cutting back its budget for education by the amount owed to the Federal Government. Brief for Respondent New Jersey 28-29. Either alternative, it asserts, infringes its sovereignty.
We cannot agree. Requiring States to honor the obligations voluntarily assumed as a condition of federal funding before recognizing their ownership of funds simply does not intrude on their sovereignty. The State chose to participate in the Title I program and, as a condition of receiving the grant, freely gave its assurances that it would abide by the conditions of Title I. See generally Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 451 U. S. 17 (1981); Quern v.
Mandley, 436 U. S. 725, 436 U. S. 734 (1978); Rosado v. Wyman, 397 U. S. 397, 397 U. S. 408 (1970); Oklahoma v. CSC, 330 U. S. 127, 330 U. S. 143-144 (1947); 1 R. Cappalli, Federal Grants and Cooperative Agreements § 1:09 (1982). As we must assume at this stage of the litigation, the State failed to fulfill those assurances, and it therefore became liable for the funds misused, as the grant specified. New Jersey has not challenged the program itself as intruding unduly on its sovereignty, see Brief for Respondent New Jersey 19-20, but challenges only the requirement that it account for funds that it accepted under admittedly valid conditions with which it failed to comply. If the conditions were valid, the State had no sovereign right to retain funds without complying with those conditions.
Once we have established the right of the Federal Government to recover funds misused by the States, we are confronted with the question how, under the statutory scheme, the Federal Government must assert its rights. Again, we agree with the Secretary's view that the initial determination is to be made administratively. The statute clearly assigned to the agency the duty of auditing grant recipients, see GEPA, § 437, 20 U.S.C. § 1232f, and it is in the auditing process that the misuse of funds, and its magnitude, will surface. Further, the provision that supports the Secretary's right to recover funds, § 415 of GEPA, 20 U.S.C. § 1226a-1 (1976 ed., Supp.V), refers to adjustments to be made for overpayments "as the Secretary may determine." Consequently, we conclude that the determination of the existence and amount of the liability is committed to the agency, in the first instance.
and, once that body rendered its decision, the Department invited the States to submit comments before the Board's decision became the final decision of the Secretary, App. to Pet. for Cert. 57a, 86a-87a. Also, the agency's decision is subject to judicial review. The 1978 Amendments explicitly provide for review in the courts of appeals. Even without an explicit provision for judicial review, review was also available under the pre-1978 version of ESA, for, in the absence of strong indications that a statute commits a decision irrevocably to agency discretion, 5 U.S.C. §§ 701(a), 702, 704 (1982 ed.); Abbott Laboratories v. Gardner, 387 U. S. 136 (1967), the propriety of the agency's action presents a federal question cognizable in the district courts, see n 3, supra. Review of the Education Appeal Board lies in the courts of appeals, ESEA § 195, 20 U.S.C. § 2851 (1976 ed., Supp.V); GEPA § 455, 20 U.S.C. § 1234d (1976 ed., Supp. V), so, in cases like the present ones, which began before the Title I Audit Board and which were transferred to the Education Appeal Board, judicial review is available in the courts of appeals. See Hallowell v. Commons, 239 U. S. 506, 239 U. S. 508 (1916) (change of forum can be applied retroactively); n 3, supra. Thus, the States have an opportunity to litigate in the courts of appeals whether the findings of the Secretary are supported by substantial evidence and reflect application of the proper legal standards. § 455(c), 20 U.S.C. § 1234d(c) (1976 ed., Supp. V); 5 U.S.C. § 706 (1982 ed.).
it to undertake to review the challenges raised by each State to the Secretary's determination. Accordingly, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
The Department of Education was not created until 1980. Pub.L. 9688, 93 Stat. 668, 20 U.S.C. § 3gO1 et seq. (1976 ed., Supp. V). The agency involved in many of the events relevant to this litigation was the predecessor, the Office of Education, and the official involved was the Commissioner of Education. For simplicity, unless the distinction is significant, we will refer to both the Office of Education and the Department of Education as the Department of Education, and to both the Commissioner of Education and the Secretary of Education as the Secretary of Education. Similarly, we refer to both the Title I Audit Hearing Board and its successor, the Education Appeal Board, as the Education Appeal Board. By a regulation, 44 Fed.Reg. 30528, 43807 (1979), the Department transferred to the Education Appeal Board appeals pending before the Title I Audit Hearing Board when the Education Appeal Board was created. See 20 U.S.C. § 1234(f) (1976 ed., Supp. V).
"The Secretary shall not approve an application . . . until he has made specific findings in writing . . . that he is satisfied that the assurances in such application and the assurances contained in its general application under section 435 of the General Education Provisions Act [20 U.S.C. 1232d] (where applicable) will be carried out."
Section 435(b), 20 U.S.C. § 1232d(b) (1976 ed., Supp. V), requires assurances "that each program will be administered in accordance with all applicable statutes, regulations, program plans, and applications."
Section 182 was added in 1978, Pub. L. 95-561, 92 Stat. 2188, but a substalltially similar provision was in effect from the date of the enactment of ESEA. See § 206, 79 Stat. 31.
Both provisions were originally enacted as part of the Education Amendments of 1978 (1978 Amendments), Pub.L. 95 561, §§ 195, 1232, 92 Stat. 2196-2197, 2350. We agree with the Court of Appeals that those provisions apply retroactively, though we pretermit the question whether the substantive provisions of the 1978 Amendments also apply retroactively, see infra at 461 U. S. 782. Under the pre-1978 version of ESEA, there was no explicit provision for judicial review of decisions of the Title I Audit Hearing Board. The presumption that review is available, see 5 U.S.C. §§ 701(a), 702, 704 (1982 ed.); Abbott Laboratories v. Gardner, 387 U. S. 136, 387 U. S. 140 (1967), coupled with the absence of any indication in the statute that the decision is committed wholly to the discretion of the agency or that review is otherwise precluded, see 5 U.S.C. § 701(a) (1982 ed.), leads to the conclusion that the district courts would have had jurisdiction under the general grant of jurisdiction over cases involving federal questions, 28 U.S.C. § 1331 (1976 ed., Supp. V). See generally 4 K. Davis, Administrative Law § 23:5, p. 135 (2d ed.1983); C. Wright, Law of Federal Courts § 103 (3d ed.1976). Once the Department transferred the cases of the Title I Audit Hearing Board to the Education Appeal Board, 44 Fed.Reg. 30528, 43807 (1979); see § 451, 20 U.S.C. § 1234(f) (1976 ed., Supp. V) (authorizing transfer), the effect of the 1978 Amendments was merely to change the forum for review. As Justice Holmes explained for the Court in Hallowell v. Commons, 239 U. S. 506, 239 U. S. 508 (1916), a change of forum "takes away no substantive right," and thus can apply retroactively.
"[The State] should refund [the amount] to the Department of Education. Appropriate authorities within the Department will be in touch with you at an early date to discuss the method of repayment of the funds in question."
App. to Pet. for Cert. 88a, 90a.
New Jersey has reproduced as an appendix to its brief a letter demanding immediate repayment, App. to Brief for Respondent New Jersey la-2a, suggesting that the Secretary has already determined the manner of collection. That letter is not part of the record, and we are inclined, in any event, to view it as an initial proposal of a means of collection. Cf. 4 CFR § 102.2 (1983) (regulation under Federal Claims Collection Act, Pub.L. 89-508, § 3, 80 Stat. 309, 31 U.S.C. § 952, requiring agency to make written demand for repayment in attempting collection of claims). Moreover, the Secretary, who is the petitioner, has not asked us to decide what means of collection are available to him, but only whether he is a creditor. Since the case does not present the issue of available remedies, we do not address it.
New Jersey explains now that it does not object to what it characterizes as a "setoff" by the Secretary, but that the Secretary did not request that remedy in the Court of Appeals. Brief for Respondent New Jersey 16, n. 10. That is, if the Secretary properly determined that New Jersey misused funds, he could, in New Jersey's view, withhold part of the funds that the State would otherwise be entitled to receive under Title I of ESEA in future years, and the State would undertake a smaller Title I program in those years. New Jersey's proposal does not, however, amount to a "recovery" by the Federal Government. Ordinarily, a State would obtain a certain sum in Title I funds by giving its assurances that it would expend that sum for Title I programs. § 142(a)(1), 20 U.S.C. § 241f(a)(1). New Jersey, however, proposes that it receive a smaller amount of money than it would otherwise be eligible to receive, and that it give assurances that it would use only that smaller amount for Title I programs. See Brief for Respondent New Jersey 16, n. 10, 28, n. 15, 34; Tr. of Oral Arg. 48. In other words, the Federal Government would pay itself back by cutting back on the Title I program at no cost to New Jersey. The Secretary does not view this form of"setoff" as satisfactory. Id. at 13-14. Thus, despite New Jersey's assertion that there is no longer any dispute between it and the Secretary over the availability of some remedy, Brief for Respondent New Jersey 17, n. 10, a controversy remains.
Pennsylvania has suggested that the Education Consolidation and Improvements Act of 1981 (ECIA) governs this case. Brief for Respondent Pennsylvania 44. It does not, however, seek the application of anything but the substantive standards introduced by that Act for determining compliance. On the contrary, it explicitly argues for the application of the procedures and remedies of the pre-1978 ESEA. Id. at 42.
In any event, even if we misapprehend Pennsylvania's argument and it seeks full retroactivity of ECIA, our result would not differ, for the remedies of the ECIA clearly include a repayment remedy. See § 452(e), as added by Pub.L. 95-561, 92 Stat. 2348, 20 U.S.C. § 1234a(e) (1976 ed., Supp.V), made applicable to ECIA by § 400(b), 20 U.S.C. § 1221(b); see also 47 Fed.Reg. 52348 (1982) (to be codified in 34 CFR § 200.57(a)(2)) (requiring repayment of funds misused under ECIA). We decide here only whether the States can be held liable for the misuse of funds, and we leave for the Court of Appeals on remand the question whether the substantive standards of the ECIA or the 1978 Amendments can apply to grants approved and paid under the pre-1978 ESEA.
To the extent that the 1978 Amendments merely changed the forum for assertion of a preexisting right, we have already decided that they do have retroactive effect. See n 3, supra. The preexisting right, of course, arises from the pre-1978 version of ESEA.
Relying on the pre-1978 version of ESEA also permits us to pretermit decision on the alternative argument offered by the Secretary -- that the Government has a common law right to recover funds any time the recipient of a grant fails to comply with the conditions of the grant. Compare 2 R. Cappalli, Federal Grants and Cooperative Agreements §§ 8:12, 8:15 (1982) (suggesting statutory or regulatory authorization necessary); Willcox, The Function and Nature of Grants, 22 Ad.L.Rev. 125, 131 (1969) (same), with Mount Sinai Hospital v. Weinberger, 517 F.2d 329 (CA5 1975) (suggesting that authority exists in the absence of statutory provision to the contrary), cert. denied, 425 U.S. 935 (1976); West Virginia v. Secretary of Education, 667 F.2d 417 (CA4 1981) (per curiam) (specific statutory authority unnecessary). Cf. California v. Block, 663 F.2d 855 (CA9 1981) (regulation requiring repayment of misspent funds invalid where statute required repayment of funds misspent with "gross negligence"). See generally Milwaukee v. Illinois, 451 U. S. 304 (1981); United States v. Wurts, 303 U. S. 414 (1938).
The only other remotely plausible reading is that suggested by New Jersey, see n 5, supra -- that the Secretary is to reduce grants below the amount that the State would otherwise be eligible to receive, and the State is to undertake a less extensive Title I program, so that the Federal Government recovers nothing: it pays less, but it receives correspondingly less in the way of Title I programs. Under that reading, the State would have no liability to the Federal Government for misspent funds.
That reading is no more than remotely plausible. First, it is hardly likely that Congress intended disadvantaged children to suffer twice: once when the State misspent the funds and once when the State cancels an otherwise eligible program because of the Secretary's refusal to fund it. Second, § 207 required the Secretary to use as his starting point the amount "the local educational agencies of that State are eligible to receive" and to adjust that amount for past misuses. But a State only becomes "eligible" by giving its assurances that it will expend the grant on Title I programs. See S.Rep. No. 146, 89th Cong., 1st Sess., 14 (1965); § 142(a)(1), 20 U.S.C. § 241f(a)(1). Section 207, then, must contemplate that the Federal Government will receive the same amount in Title I programs, but will pay the State something less than that amount -- a net recovery.
"It would seem . . . that insofar as the Conress can accomplish this end, rules of accountability, economy, and efficiency will be insisted upon, so that no Federal funds are improperly or wastefully used or diverted to uses not permitted by the act."
111 Cong.Rec. 6147 (1965) (emphasis added).
"Payments pursuant to grants or contracts under any applicable program may be made in installments, and in advance or by way of reimbursement, with necessary adjustments on account of overpayments or underpayments, as the Secretary may determine."
20 U.S.C. § 1226a-1 (1976 ed., Supp. V). Section 415 was originally numbered § 425.
The quoted language comes from the Senate Committee's discussion of "Sections 422, 423, and 425 [since renumbered as § 415]." The Court of Appeals concluded that the heading reflected a typographical error, and that the discussion referred to §§ 422, 423, and 424. See New Jersey Dept. of Education v. Hufstedler, 662 F.2d 208, 214-215 (1981). It does seem likely that the intended reference was § 424, but we fail to see why that feature should, as New Jersey argues, render this language any less relevant. Section 424 required certain types of recordkeeping of recipients, and gave the Secretary power to audit. Auditing the required records would reveal whether or not the Secretary had overpaid a recipient, and the Senate Committee clearly thought that overpayments would lead to a recovery, as provided by the former § 425.
"Here we have Congress at its most authoritative, adding complex and sophisticated amendments to an already complex and sophisticated act. Congress is not merely expressing an opinion . . . , but is acting on what it understands its own prior acts to mean."
Mount Sinai Hospital v. Weinberger, 517 F.2d at 343.
This aspect of the provision was eliminated in the 1978 Amendments, by Pub.L. 95-561, § 901(b), 92 Stat. 2305.
The Senate version of the 1974 bill included a new remedy: specific performance. The bill provided that, as long as the recipient retained funds, the Secretary could seek specific performance of the grant "contract" in the federal courts. See S. 1539, 93d Cong., 2d Sess., § 434(c)(2) (1974). Although the Conference Committee eventually eliminated the provision, H.R.Conf.Rep. No. 93-1211, p. 184 (1974), the Senate approved the remedy because it gave the Secretary a means of inducing compliance without the interruption of Title I programs involved in applying the withholding remedy. S.Rep. No. 93-763, pp. 63, 211 (1974). The Senate's version addresses a different question than does § 415. The concern addressed by the proposed § 434(c)(2) was that beneficiaries not lose services in the future because of the failure of the recipient of the grant to live up to its duties. Once the beneficiaries have already lost the services because of past misuse of funds, as opposed to current noncompliance, the Senate Committee's discussion of remedies is no longer applicable. Particularly in the light of the contemporaneous enactment of § 884, we view the Senate's version of the 1974 bill as complementing, rather than undermining, our construction of § 415.
Washington Research Project of the Southern Center for Studies in Public Policy & NAACP Legal Defense and Educational Fund, Inc., Title I of ESEA: Is it Helping Poor Children? 52 (rev.2d ed.1969); Comment, Federal Aid to Education: Title I at the Operational Level, 1971 Law & Soc.Order 324, 350; see Berke & Kirst, The Federal Role in American School Finance: A Fiscal and Administrative Analysis, 61 Geo.L.J. 927, 944, and n. 71 (1973); Murphy, Title I of ESEA: The Politics of Implementing Federal Education Reform, 41 Harv.Educ.Rev. 35, 44-45 (1971).
Pennsylvania also suggests that "overpayment" means only funds that are not expended, but remain in the State's treasury. Brief for Respondent Pennsylvania 31. We see no indication of such a limitation in the statutory language or in the legislative history, and, indeed, we would find it difficult to believe that Congress meant to permit States to obtain good title to funds otherwise owing to the Federal Government by the simple expedient of spending them.
The Court of Appeals relied on the argument in deciding that § 44 of GEPA, now renumbered as § 437, did not recognize the liability of the States to refund misused funds. The argument applies equally to § 415.
The States have also argued that Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), requires a different view of the effect of the pre-1978 version of the statute. Pennhurst required that Congress act "unambiguously" when it intends to impose a condition on the grant of federal money. Id. at 451 U. S. 17. The States argue that Congress did not speak unambiguously before 1978 in imposing liability, and it therefore was not effective in imposing liability. We disagree. As our discussion shows, we think that the plain language of the statute is sufficiently clear, and ESEA meets Pennhurst's requirement of legislative clarity. Moreover, Pennhurst arose in the context of imposing an unexpected condition for compliance -- a new obligation for participating States -- while here our concern is with the remedies available against a noncomplying State.
The Court holds that the "plain language" of § 207(a)(1) of the Elementary and Secondary Education Act of 1965, Pub.L. 89-10, 79 Stat. 32, and its successor provision, § 415 of the General Education Provisions Act, 20 U.S.C. § 1226a-1 (1976 ed., Supp. V), expressly grants the Secretary of Education (1) the right to require States to repay misspent Title I funds, and (2) the right to make an administrative adjudication of the question whether funds have, in fact, been misspent, with the result that such adjudication is subject to judicial review only on a limited, "substantial evidence" basis. Ante at 461 U. S. 782-792. The Secretary will no doubt be pleased with today's holding, but I note that he must have thought the authorizing language of this provision was not so "plain," since his lawyers deemed it worthy of no more than passing mention in his brief. See Brief for Petitioner 7, 20.
"apply the law in effect at the the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary."
and their application to this case would not result in manifest injustice. The States entered into contractual-type agreements with the United States to disburse the moneys in accordance with specified conditions. The States had no legitimate claim to a right to be able to breach these agreements with impunity. In the absence of any contrary congressional intent, agreements such as these are surely enforceable in a court of law. Therefore, at most, the 1978 Amendments merely changed the appropriate forum for litigating the Federal Government's claims that the agreements had been breached from a court of competent jurisdiction to an administrative tribunal. Because there is no manifest injustice in a simple change of forum, see ante at 461 U. S. 777-778, n. 3; Hallowell v. Commons, 239 U. S. 506, 239 U. S. 508 (1916), there is no bar to the retroactive application of the 1978 Amendments, and this case more preferably should have been decided on this basis.
In closing, I also note that this case does not involve any question as to the substantive standard by which a claim that a recipient has violated its Title I commitments is to be judged. Rather, it concerns the abstract question whether the Secretary has the right to recover Title I funds under any circumstances. In my view, there is a significant issue whether a State can be required to repay if it has committed no more than a technical violation of the agreement or if the claim of violation rests on a new regulation or construction of the statute issued after the State entered the program and had its plan approved.