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The first and most important step in obtaining accurate results from fine-needle aspiration (FNA) cytology is to procure sufficient and representative material from the lesion and to appropriately transfer this material to the laboratory. Unfortunately, the most important aspect of this task occurs beyond the control of the cytopathologist, a key reason for obtaining unsatisfactory results with FNA.,, In the world of cytology there is growing interest in “cytopathologist-performed ultrasound-guided FNA” (CP US-FNA), which has been reported to yield accurate results.,,,,,,,,,,, The first author has been applying FNA in his own private cytopathology practice with a radiologist and under the guidance of US for more than 20 years. This study retrospectively reviews the first author's personal experience. We present a selection of didactic examples under different headings that highlight the application of FNA by a cytopathologist, accompanied by US, under the guidance of a radiologist, in the form of an “outpatient FNA clinic.” The use of this technique enhances diagnostic accuracy and prevents pitfalls. The highlights of each case are also outlined as “take-home messages” (THMs).
Brief history (BH): a 43-year-old female presented with a palpable mass in the right neck. US revealed a 20 mm × 15 mm hypoechogenic lymph node (LN) in the right cervical jugular region. During US-FNA, 3 cc of hemorrhagic cystic fluid was obtained. It was believed that the cystic LN could be associated with papillary thyroid carcinoma. US was performed on the thyroid, which had not previously undergone US. The radiologist detected an 8 mm × 6 mm microcalcified nodule in the right lobe. FNA was also performed on this nodule.
Cytologic findings: (i) LN: smears from cystic fluid showed clusters of atypical thyroid follicular cells on a cystic background with hemosiderin-laden macrophages. (ii) Thyroid nodule: the hypercellular samples revealed atypical papillary clusters with occasional intranuclear vacuoles and grooves [Figure 1]. Cytologic diagnosis: LN: Metastasis of cystic papillary thyroid carcinoma. Right thyroid nodule: Thyroid papillary carcinoma. The cytologic diagnosis was confirmed histopathologically.
THMs: After the fluid was obtained from the LN during the FNA, “metastasis of thyroid papillary carcinoma,” which comes to mind first in the differential diagnosis of lesions that form cystic degenerations at the LN, was considered.,, Other lesions included in the differential diagnosis were hemangioma, metastasis from malignity in the salivary gland, squamous cell carcinoma, and malignant melanoma.
BH: a 30-year-old female complained of a palpable mass in the right breast. A cystic lesion was identified in the previous US. At the time of the US, the FNA radiologist noticed thickening in the wall surrounding the cyst that was 26 mm × 14 mm in size. First, the cyst was aspirated, and 3 cc of partially thick cystic fluid was obtained. Consequently, a sample in the form of “bird-pecking” was taken from the cystic wall. Cytologic diagnosis: (i) Cystic fluid: cystic macrophages were observed in a partially dirty inflamed background. (ii) Wall samples: malignant ductal epithelial groups were observed [Figure 2]. Histopathology: Infiltrating ductal carcinoma.
THM: sampling not only from the cyst but also from the wall enabled the detection of the malignancy.
BH: In a 35-year-old female, a hypoechoic lesion 35 mm × 15 mm in size with a cystic appearance was detected during the US due to the presence of a palpable mass in the left neck. During the US, it was noted that the cyst had no septa inside, its wall was thin, and the lesion of the cyst was almost completely full. Cytologic findings: squamous epithelial cells were observed between sporadic inflamed cells on a dirty cystic background. It was noted that some squamous cells had dyskaryotic structures with pyknotic nuclei while reactive atypia was observed in a few cells [Figure 3]. Cytologic diagnosis: Branchial cyst.
Four different cases with similar cytomorphology are presented below.
BH: A 65-year-old male presented with a 40 mm × 25 mm LN extending to the supraclavicular region in the right cervical chain in the neck. The right lung had a 3 cm area with a “ground-glass” appearance. Moreover, a cystic nodule 25 mm × 15 mm in size was present in the right thyroid. Clinical preliminary diagnosis was malignant; the primary focus was investigated (thyroid/lung?). US-FNA was applied to the LN and right thyroid nodule. The FNA of the thyroid nodule displayed findings compatible with “cystic degenerated adenomatous nodule.” LN cytologic findings: individually, scattered and sporadic groups of malignant cells were observed. The large cytoplasm cells had vacuoles and large, dark nuclei with sporadic pleomorphism [Figure 4]. Cytologic diagnosis: Adenocarcinoma. The diagnosis was interpreted as consistent with the metastasis of lung adenocarcinoma supported by the clinical/imaging picture. Follow-up: Diagnosis was confirmed by the histoimmunopathologic examination of the LN core biopsy.
BH: A 41-year-old male presented with multiple LNs in the right neck; the largest ones were 32 mm × 20 mm in the right submandibular region and 35 mm × 15 mm and 25 mm × 20 mm in the right neck. A positron emission tomography-computed tomography (PET-CT) scan showed involvement with suspicions of malignancy in the stomach wall and the LNs. Clinical preliminary diagnosis: stomach cancer with metastasis to the neck LNs. Cytologic findings: US-FNA was used in the three LNs in the neck. Similar characteristics were observed in all LNs: Pleomorphic malignant cells represented individually in some areas and forming clusters in others were formed on a partially eosinophilic reactive lymphoid background. The nuclei of malignant cells were large, and the cytoplasm was wide and vacuolated. Enlarged nucleoli were observed in some cells [Figure 5]. Cytologic diagnosis: Undifferentiated malignant tumor cells. Comment: malignant cells with a pleomorphic nature were observed admixed with reactive lymphoid cells and eosinophilia. The cellular characteristics resembled adenocarcinoma, as suspected clinically. However, due to multiple large LNs that were identified during US, pleomorphic cells also resembled “lacunar cells” seen in “nodular sclerosing type Hodgkin's lymphoma.” Histopathology: Nodular sclerosing type Hodgkin's lymphoma.
BH: A 72-year-old female presented with a mass in the neck that had been present for 1 month. A 35 mm × 20 mm LN was observed in the left submandibular region during US, while 24 mm × 16 mm and 26 mm × 15 mm nodules were observed in the right thyroid isthmus and the left lobe, respectively. Clinical prediagnosis included lymphoma and metastasis; US-FNA was performed on all three lesions. Cytologic findings: LN: high numbers of pleomorphic, multinuclear, bizarre and undifferentiated cells were noted in the left submandibular mass [Figure 6]. Thyroid nodules: The findings were compatible with “adenomatous nodule” (FNA was performed in the same session to exclude thyroid malignancy). Cytologic diagnosis of the submandibular mass was “undifferentiated pleomorphic malignant tumor.” Histoimmunopathology: Anaplastic large cell lymphoma. THM: The detection of many multinuclear, large, “bizarre” cells led us to consider the presence of three lesions during the differential diagnosis: Anaplastic large cell lymphoma, melanoma and anaplastic carcinoma/sarcoma.
BH: A 50-year-old male presented with many bilateral LNs in the neck. Clinical preliminary diagnosis was lymphoma or metastasis. An assessment of the patient's file before the FNA MRI report revealed a description of a 22 mm × 18 mm asymmetrical mass lesion in the nasopharynx. Unfortunately, this information was not indicated on the FNA requisition form. US findings: the radiologist detected many conglomerated LNs in the right and left sides of the neck during the US before the FNA. An FNA was performed from the largest LNs located at the left and right supraclavicular regions, which were18 mm × 10 mm and 30 mm × 18 mm in size, respectively. Cytologic findings: malignant tumor cells were observed individually or in scattered groups on a lymphoid background and appeared reactive. Thin fusiform particles were detected inside the nucleus in some cells in malignant clusters [Figure 7]. Cytologic diagnosis: Undifferentiated malignant tumor. Comment: the cytologic differential included the metastasis of head/neck-associated carcinoma and Hodgkin's lymphoma due to atypical mononuclear cells in the reactive lymphoid background. Histopathology: the nasopharyngeal biopsy showed undifferentiated nasopharyngeal carcinoma.
THM: (1) Metastasis in the LNs in undifferentiated carcinoma of the nasopharynx involves diagnostic challenges during the FNA., This condition may be confused with other nonkeratinized carcinoma metastases and lymphomas (especially Hodgkin's lymphoma). (2) Bizarre cells observed in undifferentiated nasopharyngeal carcinoma may resemble atypical mononuclear cells in Hodgkin's lymphoma (Hodgkin cells) and Reed–Sternberg cells [Figure 8].
BH: US-FNA was requested for a 45-year-old male due to the presence of a palpable LN 2.5 cm below the sternocleidomastoid muscle in the right neck and 1 cm below the sternocleidomastoid muscle in the left neck. US-FNA was performed on these two lesions.
Cytologic findings: Epithelioid histiocytes and epithelioid histiocytic clusters forming granuloma-like structures were observed on a reactive lymphoid background. Undifferentiated malignant cells, which formed scattered groups around granulomatous structures, were also noted. Cytologic diagnosis: an undifferentiated malignant tumor that could be a metastasis of nasopharyngeal carcinoma/Hodgkin's lymphoma [Figure 9]. Histopathology: Nasopharyngeal carcinoma (nonkeratinized squamous cell type).
BH: A 20-year-old male had a mobile soft mass with a diameter of 30 mm that had been present for 6–7 months in the right supraclavicular region. Numerous LNs with diameters of 25, 25, and 15 mm were also detected in the right cervical region during the US. A US-FNA was performed.
Cytologic findings: a heteromorphic structure composed of small-large lymphocytes and few eosinophils was observed. Sporadic and scattered epithelioid histiocytes and epithelioid histiocytic groups forming granuloma-like structures were noted on a reactive lymphoid background. “Atypical mononuclear cells with an undefined nature” were observed in the regions adjacent to these groups. Necrosis and typical granulomas were not observed [Figure 10]. Cytologic diagnosis and remarks lymphoid proliferation comprising a granulomatous reaction, which may be a component of granulomatous lymphadenitis (e.g., tuberculosis/sarcoid) or the reflection of an underlying neoplasia/lymphoproliferative lesion (Hodgkin's lymphoma) not represented by FNA. Histopathology: Mixed type Hodgkin's lymphoma.
BH: A 6-year-old male had an LN 30 mm in diameter in the right submandibular region and multiple LNs, the largest of which measured 25 mm and 15 mm, in the right cervicojugular region. US findings: Compatible with abscess/necrotic appearance. A US-FNA was performed on the largest LN (3 cm in size) in the right submandibular region. The procedure could not be repeated on the other LNs, as the pediatric patient could not be controlled.
Cytologic findings: Epithelioid histiocytes, epithelioid histiocytic granulomas, and Langhans-type giant cells were observed adjacent to a cell population with a high number of large atypical lymphoid cells [Figure 11]. Cytologic diagnosis: atypical lymphoid proliferation comprising granulomatous structures. Comment: granulomatous structures may be components of granulomatous inflammation (e.g., tuberculosis, sarcoid) or may develop secondarily to a lymphoproliferative lesion or carcinoma metastasis. Histopathology: Burkitt lymphoma with secondary granulomatous inflammatory foci (no information could be obtained regarding the cause of granulomatous inflammation proposed in histopathological diagnosis).
BH: a 29-year-old male presented with a mass in the left parotid. A hypoechogenic mass, 37 mm × 25 mm in size with irregular borders, was observed during the US. Samples were taken through radial needle movements to represent different regions of the mass. A cell block was prepared from the residual fluid.
Cytologic findings: Multiple slides were prepared. Parotid ductal epithelial/myoepithelial cells were present and were mixed with chondromyxoid material on five slides. Although this condition led to the consideration of “pleomorphic adenoma,” atypical squamous cells and cell ghosts were noted on a degenerated and necrotic background in one preparation. Atypical cells were more prominent in the cell block and exhibited characteristics typical of malignancies [Figure 12]. Cytologic diagnosis: Atypical salivary gland lesion. Comment: although the FNA samples led to the consideration of pleomorphic adenoma, one preparation and cell block contained atypical squamous cells with a suspicion of malignancy. Therefore, the possibility of “carcinoma ex pleomorphic adenoma” could not be excluded. Histopathology: Carcinoma ex pleomorphic adenoma.
THM: lesions that consist of different components in terms of histopathology may lead to diagnostic error with FNA. Therefore, a sufficient number of cells and representative cell samples should be obtained during FNA to achieve diagnostic accuracy. Similar situations may also present in cases with multiple thyroid nodules. Malignancy may emerge from the nondominant nodules.
BH: a 37-year-old female presented with a mobile solid mass with subcutaneous pain in the lower quadrant of the abdomen. A 27 cm × 25 cm hypoechogenic lesion was detected during US. It was noted during US-FNA that the patient had a caesarian scar in the abdomen and that the nodule was close to the scar; 0.5 cc of hemorrhagic fluid was obtained. Cytologic findings: glandular cellular islets of various dimensions were observed on a background consisting of hemosiderin macrophages. Moderate atypia was detected in the cells [Figure 13]. Cytologic diagnosis: endometriosis externa was confirmed histopathologically.
» Is Fine-Needle Aspiration Cytology Always to Be Blamed?
In case of incompatibility in the FNA-histopathological diagnosis, the clinician mostly relies on the histopathological diagnosis and not on the FNA. The evaluation of FNA and histopathological preparations together is generally not considered. Therefore, is a histopathological diagnosis always superior to an FNA diagnosis?
Case 1: The patient spoiled the game!
BH: a 42-year-old female was referred to us for FNA due to her thyroid nodule. The US showed a multinodular goiter. A microcalcified nodule 16 mm × 11 mm in size in the right thyroid lobe was considered important; a US-FNA was performed. Cytologic findings and diagnosis: Smears presented typical findings of thyroid papillary carcinoma [Figure 14]. Surgery and afterward: After a certain period, the patient angrily came to my office with the pathology report in her hand, trying to reproach me by saying; “It turned out to be benign after surgery. You told me it was cancer; you made me go through this stress.” I gave the preparations to the patient and directed her to the pathology institution that had reported that her nodule was benign.
The thyroidectomy material was sent to pathology from the operation theater with the note reading “multinodular goiter + total thyroidectomy.” The information of malignancy at FNA was not specified.
Case 2: This time the game was spoiled by the cytopathologist!
BH: an FNA was requested for a 45-year-old female patient with multiple sclerosis due to the presence of an LN in the neck. Multiple LNs, the largest of which was 3 cm, were detected during the US. A US-FNA was performed on the dominant LN located in the left cervical region. Cytologic findings: homogenously spread monomorphic, large, round, atypical lymphoid cells were detected [Figure 15]. Cytologic diagnosis: Non-Hodgkin's lymphoma. Surgical biopsy and afterward: The biopsy from the neck was reported to be a “sebaceous cyst.” I wrote a letter to her physician and emphasized that there were bilateral multiple LNs in the neck and that the FNA picture did not reflect a “sebaceous cyst” at all. I called the patient 5 months later. After receiving my note, her physician excised the LN on which I had performed the FNA. The patient was diagnosed with “diffuse large B-cell lymphoma” and received treatment. It turned out that the mass described as a “sebaceous cyst” was removed by the physician, as it was easy to remove from the surface of the opposite side of the LNs that underwent FNA!
We have presented a selection of didactic examples under different headings, showing that the application of FNA by a cytopathologist, accompanied by US, under the guidance of a radiologist, in a setting of an “outpatient FNA clinic” enhanced diagnostic accuracy and prevented pitfalls.
The organization of this model as a private practice by the cytopathologist is more easily compared with the hospital setting.,,, There is growing interest, especially in the United States, in establishing CP US-FNA in an academic setting; the number of publications on this topic has increased.,,,,,,,,, Most of these publications indicate that the cytopathologist may use the US device himself. However, the utilization of a US device by the cytopathologist may not be possible in each country due to medical license and medicolegal reasons.
The authors would like to thank to Dr. Kadri Yazal, Radiologist, Konrad Private Radiology Center, Izmit, Kocaeli, Turkey for his invaluable sonographic contribution. This study was presented in part as a lecture at the 26th National Pathology Congress and 7th National Cytopathology Congress held in Antalya, Turkey on November 2-6, 2016.
The authors declare that there are no relevant competing interests.
All authors of this article declare that we qualify for authorship as defined by ICMJE http://www.icmje.org/#author. Each author has participated sufficiently in the work and takes public responsibility for appropriate portions of the content of this article.
NP: Conceived and designed the study, collected data, drafted and edited the manuscript. BO: Participated in figures and manuscript preparation. All authors read and approved the paper.
All authors confirm that there are no ethical concerns. As this is a retrospective review study without identifiers, approval from the Institutional Review Board was not required.
US-FNA - Ultrasound-guided fine-needle aspiration.
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Plaintiff, an American citizen, filed suit under the Torture Victim Protection Act of 1991 (TVPA), against two foreign officials from the Democratic Republic of the Congo (DRC) for alleged torture. The district court granted defendants' motion to dismiss based on lack of subject matter jurisdiction pursuant to the foreign official immunity doctrine.
The DC Circuit vacated the district court's dismissal and held that defendants were not entitled to conduct-based foreign official immunity under the common law. In this case, defendants were being sued in their individual capacities and plaintiff was not seeking compensation of state funds. The court explained that, in cases like this one, in which the plaintiff pursues an individual-capacity claim seeking relief against an official in a personal capacity, exercising jurisdiction did not enforce a rule against the foreign state. Accordingly, the court remanded for further proceedings.
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued September 6, 2018 Decided March 12, 2019 No. 17-7118 DARRYL LEWIS, APPELLANT v. KALEV MUTOND, IN HIS INDIVIDUAL CAPACITY ONLY, ADMINISTRATEUR GENERALE, AGENCE NATIONALE DE RENSEIGNEMENTS, DEMOCRATIC REPUBLIC OF THE CONGO AND ALEXIS TAMBWE MWAMBA, IN HIS INDIVIDUAL CAPACITY ONLY, MINISTRE DE LA JUSTICE, GARDE DES SCEAUX ET DROITS HUMAINS, DEMOCRATIC REPUBLIC OF THE CONGO, APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:16-cv-01547) Merrill C. Godfrey argued the cause and filed the briefs for appellant. Robert N. Weiner argued the cause for appellees. With him on the brief were Raul R. Herrera, R. Stanton Jones, and Stephen K. Wirth. Before: SRINIVASAN and WILKINS, Circuit Judges, and RANDOLPH, Senior Circuit Judge. 2 Opinion for the Court filed by Circuit Judge WILKINS. Concurring opinion filed by Circuit Judge SRINIVASAN. Opinion concurring in the judgment filed by Senior Circuit Judge RANDOLPH. WILKINS, Circuit Judge: This case involves a lawsuit brought under the Torture Victim Protection Act of 1991 (“TVPA”), Pub. L. 102–256, 106 Stat. 73 (1992), by an American citizen who sued two foreign officials from the Democratic Republic of the Congo (“DRC”) for alleged torture over a six-week period. Plaintiff seeks compensatory and punitive damages. Defendants moved to dismiss for lack of subject matter jurisdiction; lack of personal jurisdiction; and insufficient service of process. The District Court granted the motion to dismiss, holding the court lacked subject matter jurisdiction because the defendants are immune under the common law foreign official immunity doctrine. For the reasons set forth below, we conclude that Defendants are not entitled to foreign official immunity under the common law. Because such immunity does not apply in this case, we vacate the ruling of the District Court dismissing for lack of subject matter jurisdiction and remand for further proceedings. In the opinion by Senior Judge Randolph, which is joined in relevant part by Judge Srinivasan, we provide the alternative holding that the TVPA displaces conduct-based immunity in this context. I. 3 The following facts are taken from the complaint and assumed true on review of Defendants’ motion to dismiss. Scandinavian Satellite Sys., AS v. Prime TV Ltd., 291 F.3d 839, 844 (D.C. Cir. 2002). In April 2016, Plaintiff Darryl Lewis, an American citizen, was in the DRC working as an “unarmed security advisor” to Moise Katumbi. J.A. 4. Katumbi, the former governor of the Katanga Province, was running for president of the DRC. In his complaint, Plaintiff asserts that, on April 24, 2016, he was traveling by car with a colleague in Lubumbashi when he was stopped by a local police officer near a political rally. Lewis, his colleague, and colleagues in a separate vehicle were detained by the National Intelligence Agency, Agence Nationale de Renseignements (“ANR”). Plaintiff describes being physically assaulted during the arrest process and being accused of being an American mercenary soldier, which he denies. Lewis and his colleagues were then transported to a local jail, where ANR members continued to assault them during a lengthy interrogation. The following morning, they were transported by air to Kinshasa, where Lewis was incarcerated and interrogated daily for six weeks. Plaintiff alleges that he was interrogated daily by ANR members for approximately sixteen hours a day and was intentionally starved and denied sleep and basic hygienic necessities. Plaintiff claims that Defendant Kalev Mutond, General Administrator of the ANR, was involved in his detention in Kinshasa, at one point warning him: “Don’t let me find out you’re a mercenary.” J.A. 7. Plaintiff further claims that Defendant Alexis Thambwe Mwamba, DRC Minister of Justice, publicly accused him of being a mercenary sent to assassinate President Joseph Kabila during a press conference on May 4, 2016, claiming to have “documented proof.” J.A. 7. The following day on May 5, 2016, the U.S. Embassy in Kinshasa allegedly issued a statement condemning the remarks 4 concerning Lewis and mercenary activities. Lewis was released on June 8, 2016, having never been charged with a crime. Plaintiff contends that Defendants are liable under the TVPA. The TVPA creates an express cause of action against “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture.’’ 28 U.S.C. § 1350 (note) sec. 2(a). Plaintiff’s complaint alleges that “Defendants at all times used their respective positions of authority to act under apparent authority or color of law of the DRC with respect to the actions alleged in this complaint.” J.A. 11. Rather than order his release from custody and protect him from torture, Plaintiff argues, Defendants enabled the abuses described in the complaint. Defendants moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, claiming that Plaintiff’s complaint alleges acts exclusively taken in Defendants’ official capacity. Because foreign officials enjoy immunity from suits based on official acts committed in their official capacities, Defendants argued, the District Court lacked jurisdiction. The District Court agreed and granted Defendants’ motion to dismiss. Lewis v. Mutond, 258 F. Supp. 3d 168, 172 (D.D.C. 2017). Plaintiff timely appealed. II. This Court reviews de novo the District Court’s dismissal for lack of subject-matter jurisdiction. Simon v. Republic of Hungary, 812 F.3d 127, 135 (D.C. Cir. 2016). The defendant bears the burden of proving foreign official immunity. Cf. Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000) (explaining that a foreign state defendant who 5 asserts the defense of immunity under the Foreign Sovereign Immunities Act “bears the burden of proving that the plaintiff's allegations do not bring its case within a statutory exception to immunity”). A. Because this case involves foreign officials – not foreign states – the issue of immunity is governed by the common law, not the Foreign Sovereign Immunities Act (“FSIA”). See Samantar v. Yousuf, 560 U.S. 305, 325 (2010) (noting that a case “in which respondents have sued petitioner in his personal capacity . . . is properly governed by the common law”). The doctrine of common law foreign immunity distinguishes between two types of immunity: status-based and conductbased immunity. Status-based immunity is reserved for diplomats and heads of state and attaches “regardless of the substance of the claim.” Chimène I. Keitner, The Common Law of Foreign Official Immunity, 14 GREEN BAG 2d 61, 64 (2010); see also Yousuf v. Samantar, 699 F.3d 763, 774 (4th Cir. 2012). Conduct-based immunity is afforded to “any  [p]ublic minister, official, or agent of the state with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be to enforce a rule of law against the state.” Restatement (Second) of Foreign Relations Law § 66(f) (1965) (hereinafter Restatement); see also Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009); Samantar, 699 F.3d at 774. As explained by the Supreme Court in Samantar, a twostep procedure is used to determine whether a foreign official is entitled to conduct-based foreign sovereign immunity. Samantar, 560 U.S. at 311-12. At the first step, a foreign official requests a “suggestion of immunity” from the State Department and, if granted, the District Court is divested of its jurisdiction. Id. at 311. If the State Department does not grant 6 a suggestion of immunity, the District Court is authorized to decide whether all the requisites for foreign-official immunity exist. Id. at 311-12. B. We turn to the two-step procedure outlined in Samantar to evaluate Defendants’ claim to conduct-based immunity. At step one, see Samantar, 560 U.S. at 311-12, we conclude that Defendants are not entitled to immunity. On August 9, 2016, the DRC Ambassador to the United States sent a letter to the United States Department of State denying Plaintiff’s allegations and requesting that the State Department submit a suggestion of immunity to the court. This request was reiterated in a December 13, 2016 follow-up letter. However, the State Department did not accede to the plea of the DRC, and never issued a request that the District Court surrender its jurisdiction. At step two, we consider whether Defendants satisfy the requisites for conduct-based immunity. The Supreme Court has “expressed no view on whether Restatement [2d of Foreign Relations] § 66 correctly sets out the scope of the common-law immunity applicable to current or former foreign officials.” Samantar, 560 U.S. at 321 n.15. Here, however, both parties assume § 66 accurately sets out the scope of common-law immunity for current or former officials, see Appellees’ Br. 14 & n.4, and we therefore proceed on that understanding without deciding the issue. Assuming, as the parties do, that Restatement § 66 captures the contours of common-law official immunity, Defendants are not entitled to immunity. Under Restatement § 66, the court considers three factors. First, whether the actor is a public minister, official, or agent of the foreign state. Restatement § 66(f). Second, whether the 7 acts were performed in her official capacity. Id. And third, whether exercising jurisdiction would serve to enforce a rule of law against the foreign state. Id. To establish conduct-based immunity, a defendant must establish all three factors. Restatement § 66 cmt. b (“Public ministers, officials, or agents of a state . . . do not have immunity from personal liability even for acts carried out in their official capacity, unless the effect of exercising jurisdiction would be to enforce a rule against the foreign state.” (emphasis added)). As a result, to enjoy conduct-based immunity as defined by the Restatement, Defendants must satisfy the third factor by proving that exercising jurisdiction in this case is tantamount to enforcing a rule of law against the DRC itself. See Restatement § 66(f). Defendants attempt to prove this, in part, by arguing that “Plaintiff’s suit seeks to hold high-ranking DRC government officials liable for official conduct carried out entirely within the DRC.” Appellees’ Br. 30. This position elides the second and third elements for establishing conductbased immunity. The second immunity element focuses on the nature of Defendant’s acts and whether they were taken within an “official capacity.” By contrast, the third element considers whether the remedies sought by Plaintiff serve to enforce a rule of law against the DRC. That element, as understood through the lens of the small number of decisions speaking to the existence and scope of common-law immunity, would allow for immunity when a judgment against the official would bind (or be enforceable against) the foreign state. See Beth Stephens, The Modern Common Law of Foreign Official Immunity, 79 FORDHAM L. REV. 2669, 2676-78 (2011) (examining cases). This approach is reinforced by the illustrations in the Restatement commentary. For example, the Restatement explains: 8 X, an official of the defense ministry of state A, enters into a contract in state B with Y for the purchase of supplies for the armed forces of A. A disagreement arises under the contract and Y brings suit in B against X as an individual, seeking to compel him to apply certain funds of A in his possession to satisfy obligations of A under the contract. X is entitled to the immunity of A. Restatement § 66, cmt. B(2). Defendants have not proffered anything to show that Plaintiff seeks to draw on the DRC’s treasury or force the state to take specific action, as would be the case if the judgment were enforceable against the state. Defendants in this case are being sued in their individual capacities and Plaintiff is not seeking compensation out of state funds. J.A. 2; see also Appellant’s Br. 27 (“[T]he monetary liability sought here against individuals . . . would have no effect on the state treasury.”). Defendants argue that the effect on the DRC’s treasury is “irrelevant” because “[e]xercising jurisdiction here would compel the DRC’s sitting Minister of Justice and General Director of the National Intelligence Agency to defend their handling of a high-profile domestic security matter in U.S. courts.” Appellees’ Br. 32. Taking such foreign officials away from their official duties in the DRC, Defendants argue, is a “sufficient sanction to constitute enforcing a rule of law on the DRC.” Appellees’ Br. 32 (alterations and quotations omitted). But these collateral effects are too attenuated to be equated with the direct fiscal impacts on the foreign state that are contemplated by the Restatement. Cf. Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“[E]ven though a State is not named a party to the action, . . . [if] the action is in essence one for the 9 recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity.” (citation omitted)). In cases like this one, in which the plaintiff pursues an individual-capacity claim seeking relief against an official in a personal capacity, exercising jurisdiction does not enforce a rule against the foreign state. Defendants are thus not entitled to the conductbased foreign official immunity. In view of our conclusion that Defendants have not satisfied the necessary third element of conduct-based immunity, we need not address Plaintiff’s arguments relating to the first two elements. III. For these reasons, we vacate the District Court’s grant of Defendant’s motion to dismiss for lack of subject matter jurisdiction and remand for further proceedings. Defendants argue that, even if the District Court has subject matter jurisdiction, this Court should affirm on the basis that the court lacks personal jurisdiction over them. Defendants claim they do not have “any connection to the United States, and all of the conduct at issue is alleged to have occurred entirely within the DRC.” Appellees’ Br. 33 (citing Mwani v. bin Laden, 417 F.3d 1, 8 (D.C. Cir. 2005)); see also Fed. R. Civ. P. 4(k)(2). Plaintiff’s memorandum in opposition to Defendants’ motion to dismiss disagreed but requested jurisdictional discovery if the court were inclined to agree with Defendants. See Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 525 (D.C. Cir. 2001) (“Certainly, ‘a plaintiff faced with a motion to dismiss for lack of personal jurisdiction is entitled to reasonable discovery.’” (quoting El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 676 (D.C. Cir. 1996)) (alterations omitted)). The District Court neither addressed Defendants’ personal jurisdiction argument nor ruled on Plaintiff’s request for jurisdictional discovery. Lewis v. Mutond, 258 F. Supp. 3d 10 168, 174-75 (D.D.C. 2017). We decline to decide the matter in the first instance. Accordingly, on remand, the District Court should consider the question of personal jurisdiction and whether Plaintiff is entitled to jurisdictional discovery. So ordered. SRINIVASAN, Circuit Judge, concurring: I fully join Judge Wilkins’s opinion, which explains that if, as the parties assume, Restatement (Second) of Foreign Relations Law § 66(f) sets out the scope of common-law, conduct-based immunity for foreign officials, the defendants in this case do not qualify for that immunity. I also agree with the portion of Judge Randolph’s concurrence in the judgment explaining that the Torture Victim Protection Act (TVPA) subjects foreign officials to liability for acts undertaken in an official capacity and thus displaces any common-law, conduct-based immunity that might otherwise apply in the context of claims under that Act. See Concurring Op. 3–4. In my view, therefore, the defendants in this case do not qualify for immunity for either of two reasons: (a) as Judge Wilkins explains, they fall outside the scope of the common-law, conduct-based immunity contemplated by Restatement § 66(f); or (b) as Judge Randolph explains, they fall within the scope of liability contemplated by the TVPA per the allegations in the complaint. RANDOLPH, Senior Circuit Judge, concurring in the judgment: The court assumes that the immunity of the defendant foreign officials under the Torture Victims Protection Act turns on “the common law” and that the Restatement (Second) of Foreign Relations Law of the United States § 66(f) (1965)1 embodies the governing common law. I think both assumptions are dubious. Neither has been tested in an adversary proceeding. Consider first the proposition that, as the court assumes, Restatement (Second) § 66(f)2 recites the common law. The 1 The Restatement (Second) was superseded by the Restatement (Third) of Foreign Relations Law of the United States (1987). See Beth Stephens, The Modern Common Law of Foreign Official Immunity, 79 Fordham L. Rev. 2669, 2678 n.45 (2011). There may be a plausible but oddly unexplained reason for invoking the older Restatement version and ignoring the newer. I see no need to get into this. 2 “The immunity of a foreign state under the rule stated in § 65 extends to (a) the state itself; (b) its head of state and any person designated by him as a member of his official party; (c) its government or any governmental agency; (d) its head of government and any person designated by him as a member of his official party; (e) its foreign minister and any person designated by him as a member of his official party; (f) any other public minister, official, or agent of the state with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be to enforce a rule of law against the state; (g) a corporation created under its laws and exercising functions comparable to those of an agency of the state.” Restatement (Second) § 66. 2 common law is “the dominant consensus of common-law jurisdictions.” Field v. Mans, 516 U.S. 59, 70 n.9 (1995).3 This Restatement is titled “Foreign Relations Law of the United States,” but it does not pretend to be a statement of “common law.” Instead it sets forth “rules of international law as distinguished from the rules of domestic law,” “[e]xcept as otherwise indicated.” Restatement (Second) § 2(2).4 The immunity provision of Restatement (Second) § 66(f) contains no such exception, express or implied. Restatement § 66(f) appears to be a distillation of scant case law in this country, international treaties to which the United States may or may not be a party, the writings of law professors here and abroad, negotiated settlements of international disputes, and other non-judicial sources such as actions of our Department of State and perhaps comments in meetings of the American Law Institute. Restatement (Second) § 1, comment c, explains that the “paucity of adjudicated decisions in the international 3 Another definition of the common law, in a highly regarded posting in the Federal Register, is this: “The common law is a body of judge-made substantive rules, principles, and prescribed standards of conduct.” Federal Trade Commission, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking, 29 Fed. Reg. 8324, 8365 (July 2, 1964); see also A. Raymond Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J.L. & Pub. Pol’y 1035, 1044 (2006) (“The common law judge analyzes past judicial decisions, considers the reasons behind the decisions, comes up with a principle to explain the cases, and then applies that principle to a new case.”). 4 “Our duty is to enforce the Constitution, laws, and treaties of the United States, not to conform the law of the land to norms of customary international law.” United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991). 3 field has led to greater reliance on non-judicial sources than in domestic law.” See also Restatement (Second) § 2, cmt. f. If Restatement (Second) § 66(f) is not common law, and does not purport to be, how then does one discover the real common law? The answer is not obvious. It may well be that there is not now and never was any common law of immunity for foreign officials sued in the United States. “The lower courts will find only minimal guidance from [pre-1976] decisions involving the common law immunity of foreign officials. Those cases were ‘few and far between,’ and none addressed claims of human rights abuses.” Stephens, supra, at 2671 (footnote omitted) (quoting Samantar v. Yousuf, 560 U.S. 305, 323 (2010)).5 Even if there were a common law of immunity for foreign officials and even if the Restatement (Second) § 66(f) stated it, the question remains: does the Restatement’s version of the common law control actions such as this arising under the Torture Victims Protection Act of 1991, 28 U.S.C. § 1350 note? A foreign official may be immune from suit pursuant to the Restatement’s § 66(f) only with respect “to acts performed in his official capacity.” Here the Democratic Republic of the Congo notified the State Department that the defendants’ alleged torture actions were “undertaken in their official capacities.” That may have satisfied a prerequisite for immunity under the Restatement, but it also amounted to a confession satisfying 5 “The courts will not be able to turn to pre-FSIA common law decisions and commentary to determine the scope of the modern common law of official immunity in part because the cases were sparse, leaving a few guidelines but no substantial body of law.” Id. at 2702. “Pre-FSIA” means before enactment of the Foreign Sovereign Immunities Act of 1976. 4 one of the prerequisites for liability under the Torture Act. Section 2(a) of the Torture Act does away with the Nuremberg defense, and more. Pursuant to § 2(a) an “individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture shall, in a civil action, be liable for damages to that individual.” 28 U.S.C. § 1350 note § 2(a)(1). The Torture Act thus imposes liability for actions that would render the foreign official eligible for immunity under the Restatement. When there is such a clear conflict between statutory law and judge-made common law, the common law must give way. See City of Milwaukee v. Illinois, 451 U.S. 304, 314–15 (1981).6 I leave to the last a discussion of the Supreme Court’s decision in Samantar v. Yousuf and our court’s decision in Manoharan v. Rajapaksa, 711 F.3d 178 (D.C. Cir. 2013) (per curiam). Samantar v. Yousuf interpreted the term “foreign state” in the following provision of the Foreign Sovereign Immunities Act (FSIA): “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States . . ..” 28 U.S.C. §1604. The Supreme Court held that “foreign state” did not include foreign officials. In so holding the Court did “not resolve the dispute among the parties as to the precise scope of an official’s immunity at common law.” 560 U.S. at 6 “It has often been said that statutes in derogation of the common law are to be strictly construed. That is a relic of the courts’ historical hostility to the emergence of statutory law.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 318 (2012). 5 321.7 Although the plaintiffs sued under the Torture Act, the Court did not address the conflict between the Torture Act and Restatement § 66(f). As to our decision in Manoharan v. Rajapaksa, the case involved head-of-state immunity. As the court discusses in this case, Maj. Op. 5, there are two types of immunity for foreign officials – status-based, as in Manoharan, and conduct-based, as in the case before us. Head-of-state immunity and other statusbased immunities are the predominant focus of U.S. case law, sparse as it is, related to foreign officials. See Yousuf v. Samantar, 699 F.3d 763, 772 (4th Cir. 2012); Restatement (Second) § 66, reporter’s note 1. It is well established that when the executive provided a “suggestion of immunity,” a head of state would be granted immunity by the courts. See, e.g., Ye v. Zemin, 383 F.3d 620, 625–27 (7th Cir. 2004). These statusbased immunities also derive from international treaties such as the Vienna Convention on Diplomatic Relations and United Nations Convention on Special Missions. Vienna Convention on Diplomatic Relations, art. 31, Apr. 18, 1961, 23 U.S.T. 3227 (diplomatic immunity); S. Rep. No. 102-249, at 8 (1991) (citing United Nations Convention on Special Missions, art. 21(1), adopted Dec. 8, 1969, 1400 U.N.T.S. 231 (entered into force June 21, 1985)) (head of state immunity). The legislative history of the Torture Act indicated that these immunities would survive. H.R. Rep. No. 102-367, at 5 (1991), 1992 U.S.C.C.A.N. 84, 88 (“[N]othing in the TVPA overrides the doctrines of diplomatic and head of state immunity.”). The conflict between the Torture Act’s basis for liability and the Restatement’s basis for immunity from liability was 7 The Court “express[ed] no view on whether Restatement § 66 correctly sets out the scope of the common-law immunity applicable to current or former foreign officials.” Id. at 321 n. 15. 6 neither briefed nor argued, although it should have been. The immunity of foreign officials may be a jurisdictional question. See Belhas v. Ya’alon, 515 F.3d 1279, 1281, 1283 (D.C. Cir. 2008). I agree with the court that if the Restatement did apply, the defendants were not immune.
Two foreign officials from the Democratic Republic of Congo were not entitled to conduct-based foreign official immunity under common law.


This case was before the court on plaintiff’s motion for summary judgment regarding a variety of issues. Although the court granted the motion in some respects, as discussed here, it denied the motion with respect to plaintiff’s claim that defendant’s inclusion of the maître d’ in its tip pool was illegal and invalidated the tip pool. The court held that on the record before it, it was not possible to conclude that the maître d’ was a management employee rather than a properly tipped service employee.
“The FLSA expressly prohibits employers from participating in employee tip pools. “Congress, in crafting the tip credit provision of section 3(m) of the FLSA did not create a middle ground allowing an employer both to take the tip credit and share employees’ tips.” Chung v. New Silver Place Rest., Inc., 246 F.Supp.2d 220, 230 (S.D.N.Y.2002); Wajcman v. Investment Corp. of Palm Beach, No. 07-80912-CIV, 2008 WL 783741, *3 (S.D.Fla. March 20, 2008) (“The theory here is that employees who exercise substantial managerial authority over the day to day operations of the business are functionally the ‘employers’ themselves”). Where employers participate in a tip pool, the pool is invalid. See Ayres v. 127 Restaurant Corp., 12 F.Supp.2d 305 (S.D.N.Y.1998) (tip pool violated FLSA where general manager, who had authority to suspend, hire and fire employees and analyze payroll costs, was allowed to participate in the pool).
Plaintiff argues that Pigall’s tip pool was invalid because Brown was a manager and shared in the pool. (Doc. 22-1.) In support of its argument, Plaintiff points to Brown’s guaranteed compensation, his participation in the opening of the restaurant, his authority to train, schedule and supervise the wait staff, and his authority to hire and fire employees. (Id.) Plaintiff cites to the depositions of Brown and de Cavel, wherein both men testified that Brown was considered part of the restaurant’s management team. (de Cavel Dep. 50:13-14; Brown Dep. 59:17-22.) These facts, Plaintiff argues, unequivocally establish that Brown was an employer for purposes of the FLSA. See Ayres, 12 F.Supp.2d at 307-08 (general manager of restaurant, who had full authority to suspend or terminate employees, supervised wait staff, made hiring decisions, assumed responsibility for budget and received weekly salary of $2000 was not an employee who “customarily and regularly received tips” under the FLSA).
Defendants agree that Brown participated in the tip pool but argue that he was not a manager and, thus, the tip pool was not invalid by virtue of the fact that Brown participated in it. Defendants point to Dole v. Continental Cuisine, Inc., 751 F.Supp. 799 (E.D.Ark.1990), to support their contention that Brown cannot be considered an employer under the Act. In Continental Cuisine, the individual in question was the maître d’ of the restaurant alleged to have violated the FLSA. 751 F.Supp. at 802-03. The maître d’ was responsible for setting up the dining room, seating and greeting customers, serving the first drink to customers, scheduling shifts for the wait staff, interviewing applicants for positions as waiters and waitresses, and recommending that persons be hired or fired. Id. at 800. Because the maître d’ did not have final authority to hire and fire employees, set wages, control restaurant operations, or control payroll, he was not considered an employer for purposes of the FLSA. Id. at 803. Defendants argue that, similar to the maître d’ in Continental Cuisine, Brown did not have the requisite managerial authority to be considered an employer under the Act.
EDITOR’S NOTE: In a recent decision going one step further, a court in the Northern District of Texas held on similar evidence, that as a matter of law, the inclusion of a maître d’ did not render a tip pool illegal. Rudy v. Consolidated Restaurant Companies, Inc., 2010 WL 3565418 (N.D.Tex. Aug. 18, 2010).
It is clear from both of these decisions that while there is room for the argument that inclusion of a maître d’ may render an otherwise valid tip pool invalid, it is a very fact intensive issue and plaintiff attorneys would be wise to fully develop their factual record on issues of hiring/firing powers if they prosecute these claims.
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Ling Nan Zheng v. Liberty Apparel Co. Inc.
Plaintiffs-appellees were 25 Chinese garment workers living and working in New York City’s Chinatown. In 1999, they sued Liberty Apparel Company and its principals Albert Nigri and Hagai Laniado (collectively, “the Liberty Defendants”), and others, for violations of the Fair Labor Standards Act (“FLSA”), and the New York Labor Law (“NYLL”). After a lengthy procedural history, the case went to a jury trial, and the principal issue was whether the Liberty Defendants were plaintiffs’ “joint employer” for purposes of the FLSA and New York state law claims.
The Liberty Defendants appealed that judgment. In this opinion, the Second Circuit considered Defendants’ contention that the district court-rather than the jury-should have determined whether the Liberty Defendants were plaintiffs’ joint employer. And on that issue, they affirmed. The substantive law regarding the joint employment issue was discussed in a separate opinion.
After a lengthy procedural history, the defendants removed for summary judgment, and on May 23, 2008, Judge Sullivan denied that motion. Zheng v. Liberty Apparel Co., 556 F.Supp.2d 284, 287 (S.D.N.Y.2008) (“Zheng III ”). The court determined that, while there was no genuine issue of fact that the first, second, and fourth Zheng II factors weighed in the Liberty Defendants’ favor, there was a dispute of fact regarding factors three, five, and six. Id. at 289-95. On February 11, 2009, after a two-and-a-half week trial, the jury found in plaintiffs’ favor. The court denied the Liberty Defendants’ post-verdict motions to set aside the verdict and for a new trial. By final judgment entered October 26, 2009, plaintiffs were awarded $556,566.76 in damages.
“In the context of a jury trial, the question whether a defendant is a plaintiffs’ joint employer is a mixed question of law and fact. Such questions “involve[ ] the application of a legal standard to a particular set of facts.” Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 437 (2d Cir.1999) (internal quotation marks omitted). “FLSA claims typically involve complex mixed questions of fact and law….” Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 743 (1981); cf. Holzapfel v. Town of Newburgh, N.Y., 145 F.3d 516, 521 (2d Cir.1998).
The jury’s role was to apply the facts bearing on the multi-factor joint employment inquiry to the legal definition of joint employer, as that term had been (properly) defined by the district court in the jury charge. “[M]ixed questions [of law and fact] are ‘especially well-suited for jury determination….’ “ Richardson, 180 F.3d at 437 (quoting Mendell v. Greenberg, 927 F.2d 667, 673 (2d Cir.1990)); see also Kirsch v. Fleet St., Ltd., 148 F.3d 149, 171 (2d Cir.1998); Simms v. Vill. of Albion, N.Y., 115 F.3d 1098, 1110 (2d Cir.1997) (“A mixed question of fact and law may be submitted to the jury only if the jury is instructed as to the applicable legal standards.”).
In the Liberty Defendants’ view, the district court should have provided a special verdict form so that the jury could detail its factual findings regarding the various joint employment factors, and so that the district court could then have applied those findings to make the final determination as to joint employment. But such a rule would distort the jury’s proper role, described above, of applying law to fact. Moreover, requiring the use of a special verdict form would be anomalous in the law, cf. Fed.R.Civ.P. 49(a); Kirsch, 148 F.3d at 171; 9B C. Wright & A. Miller, Federal Practice & Procedure § 2505 (“Wright & Miller”); and appellate courts rarely-if ever-vacate for failure to use a special verdict form, see Skidmore v. Balt. & O.R. Co., 167 F.2d 54, 67 (2d Cir.1948) (“[W]e cannot hold that a district judge errs when, as here, for any reason or no reason whatever, he refuses to demand a special verdict, although we deem such verdict usually preferable to the opaque general verdict.”); Wright & Miller § 2505 (“[A]s numerous courts have held, as evidenced by the many cases cited in the note below, the exercise of th[e trial court’s discretion in using a general rather than a special verdict form] is not likely to be overturned on appeal.”).
The Liberty Defendants’ reliance on language from Zheng II is misplaced. That decision recognized that the joint employment question is a mixed one of law and fact: “Finally, there is the conclusion of law to be drawn from applying the factors, i.e., whether an entity is a joint employer.” Zheng II, 355 F.3d at 76 (emphasis added); cf. id. at 76 n.13 (noting “[t]he fact-intensive character of the joint employment inquiry”). Moreover, to the extent Zheng II contemplated de novo review of a joint employment determination, it did so only in the context of summary judgment, not a jury trial. De novo review of a jury’s joint employment determination would necessitate use of a special verdict-which, as we explained above, we do not require-and would cause the appellate court to tease apart the interwoven elements of facts and law, a project that would raise serious Seventh Amendment concerns, cf. Castillo v. Givens, 704 F.2d 181, 199 (5th Cir.1983) (Higginbotham, J., concurring)-if it could even be done.
McDougal v. G & S Tobacco Dealers, L.L.C.
“1. With respect to Woodward’s claim for indemnification, contribution and breach of statutory or agency duties, the doctrine of conflict or obstacle preemption is dispositive.
Woodward’s state common law claims of contractual and implied indemnification and contribution against Oliverios for wages and benefits damages not paid to McDougal after July 17, 2007 in violation of FLSA and WPCA are preempted by the doctrine of conflict or obstacle preemption.
On the same date the parties argued the instant cross-motions for summary judgment before this Court, the Fourth Circuit Court of Appeals published its decision in Equal Rights Center, et al v. Archstone Multifamily Series I Trust, et al, 09-1453.
Obstacle preemption applies “where state law; stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ “ …. where a state-law claim “interferes with the methods by which the federal statute was designed to reach [its] goal.” (internal citations omitted).
Obstacle preemption has been extended to state tort claims as well as positive enactments of state law. Id. citing Geier v. Am. Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000).
Here, Archstone sought to allocate the full risk of loss to Niles Bolton for the apartment buildings at issue. Allowing an owner to completely insulate itself from liability for an ADA or FHA violation through contract diminishes its incentive to ensure compliance with discrimination laws. If a developer of apartment housing, who concededly has a non-delegable duty to comply with the ADA and FHA, can be indemnified under state law for its ADA and FHA violations, then the developer will not be accountable for discriminatory practices in building apartment housing. Such a result is antithetical to the purposes of the FHA and ADA.
There is no right of contribution or indemnification for employers found liable under the FLSA. The reasons are readily apparent. First, the text of the FLSA makes no provision for contribution or indemnification. Second, the statute was designed to regulate the conduct of employers for the benefit of employees, and it cannot therefore be said that employers are members of the class for whose benefit the FLSA was enacted. Third, the FLSA has a comprehensive remedial scheme as shown by the express provision for private enforcement in certain carefully defined circumstances. Such a comprehensive statute strongly counsels against judicially engrafting additional remedies. Fourth, the Act’s legislative history is silent on the right to contribution or indemnification. Accordingly, we hold that there is no right to contribution or indemnification for employers held liable under the FLSA.
In Herman, Portnoy contended that even if the FLSA did not permit contribution or indemnification, those claims could be prosecuted under New York law in much the same way Woodward contends she should be permitted to prosecute claims for indemnification against Oliverios under West Virginia law. The Herman Court held: “This view of the law is flawed because the FLSA’s remedial scheme is sufficiently comprehensive as to preempt state law in this respect.” Herman v. R.S.R. Security Servs. Ltd., supra at 144.
In the instant suit, Oliverios were the employers of McDougal prior to July 17, 2007 and therefore responsible for any FLSA and WPCA claims arising for work performed by McDougal up to July 17th. However, Woodward uses the warranty and indemnification clauses of the 2007 contract in an attempt to hold Oliverios liable for Woodward’s failure to pay McDougal FLSA wages after July 17, 2007. In the alternative to the contract indemnification claim, Woodward attempts to shift ultimate responsibility for payment of post July 17, 2007 FLSA wages to Oliverios using equitable principles. In every event, Woodward seeks to delegate her duty to comply with the FLSA to Oliverio for all wages and damages owed including those starting with the contract closing on July 17, 2007. This she cannot do. The FLSA does not contain language that provides for such indemnification or contribution. Woodward is not a member of the class protected by the FLSA. The FLSA is a comprehensive remedial statute designed to give employees the right to sue their employers for violations of the act. This is precisely what McDougal did in bringing his action against Woodward. Herman, supra at 144. This court cannot and will not engraft an indemnity clause on the FLSA where there is none. LeCompt, supra at 1264.
Accordingly, the Court concludes that Woodward’s Third Party Plaintiff claims against Oliverios for indemnification or contribution to McDougal’s FLSA claims arising post July 17, 2007 whether the same are based on contractual or equitable contribution, indemnification, breach of contract, breach of warranty, agency, or another state contract or equity claim, are preempted by the provisions of the FLSA; are antithetical to the purpose of the FLSA; undermine the public policy established by the FLSA; and are barred by the doctrines of Conflict and Obstacle Preemption.
Not discussed here, the Court held that language from the contract of sale of the employer from Oliverios to Woodward was binding, to the extent that Oliverios was required to pay the cost of Woodward’s legal defense arising from the lawsuit.


Discussing workplace conditions or refusing to sign a waiver or other document that purports to require the employee to not discuss working conditions with others. Labor Code §232.5.
Engaging in or participating in politics or becoming a candidate for public office. Labor Code §1101.
Taking time off to serve on a jury if the employee gave the employer reasonable notice for the leave. Labor Code §230(a).
Where the employee was the victim of a crime, taking time off to appear in court to comply with a subpoena or court order as a witness in a judicial proceeding. Labor Code §230(b).
Taking time off from work to obtain relief to help ensure health, safety or welfare for themselves or their children after the employee was a victim of domestic violence, sexual assault or stalking. Labor Code §230(c).
Taking time off from work to perform emergency duty as a volunteer firefighter, a reserve peace officer, or an officer, employee, or member of a disaster medical response entity sponsored or requested by the State. Labor Code §230.3.
Where the employer has at least 25 employees, seeking reasonable accommodations to allow the employee to enter into an alcohol or drug rehabilitation program. Labor Code §1025-1028.
Refusing to work hours in excess of those permitted in the Industrial Welfare Commission Wage Orders. Labor Code §1198.3.
Taking time off to donate an organ or bone marrow to another person. Labor Code §1512.
Complaining about workplace safety or health conditions or practices, or instituting or causing to be instituted any proceeding relating to the employee’s rights to safe and healthful working conditions, or testifying in any such proceeding. Labor Code §6310.
Refusing to perform work that would violate any occupational safety or health standard, or any safety order where the violation would create a real and apparent hazard to the employee or her or his co-workers. Labor Code §6311.
Refusing to lift, reposition, or transfer a patient due to a health care worker’s concerns about patient or worker safety or because of the lack of trained lift team personnel or equipment. Labor Code §6403.5.
Complaining about the violation of any licensing or other laws relating to child day care facilities, instituting any proceeding against the employer relating to the violation of any licensing or other laws, appearing as a witness or testifying in a proceeding relating to the violation of any licensing or other laws, or refusing to perform work in violation of a licensing or other law or regulation after notifying the employer of the violation. Health and Safety §§1596.881, 1596.882.
If you have any questions about discrimination, harassment, wages and breaks violations, wrongful termination, or medical leave violations in California, contact our experienced team at Pedersen Law today.


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The Chief Justice, by joining the left and upholding the law, saved the Supreme Court from being looked at as only a political body. If it would have struck down the ACA on political 5-4 voting lines, it would have been Bush v. Gore all over again (which was the Rehnquist Court, not the Roberts Court), and the Court would have been delegitimized. But now, even though Republicans and Democrats will fight over this in the upcoming elections, the Court will be seen as more neutral than in the past.
That's how Tom Goldstein describes today on the live blog over at SCOTUSBlog, which is worth headed to right now.
I'll hopefully post something this afternoon with some discussion about the cases today.
UPDATE 2 -- Here's the lengthy healthcare opinion.
92-3 by the Senate. Well done and congratulations!
11th Circuit decides whether the "act of masturbating while sitting beside another person ... satisf[ies] the 'with another person' requirement of the statute."
It does not. The Federal Public Defender's office deserves a hand for this win.
waiting room, which had approximately 20 chairs.
frightened.” Wyscaver eventually reported Scott’s conduct to a security guard.
judge sentenced Scott to 68 days in prison, followed by one year of probation.
masturbating “with another person” within the meaning of section 800.02.
Well, there you go -- staring at another person doesn't mean you committed an act with that person.
Putting aside all of the funny one-liners, can someone please explain to me why the feds brought this case in the first place, which is unlike the ICE chief, Anthony V. Mangione who is apparently set to plead guilty.
On a separate note -- GOOD LUCK TO ROBIN ROSENBAUM TODAY.
Or at ScotusBlog live blogging the Supreme Court opinions as they come out?
Should be a very exciting Monday morning.
Morrison v. Olson (1988): The Court voted to uphold the Independent Counsel Act; Scalia was the only dissenter.
PGA Tour, Inc. v. Martin (2001): A lawsuit brought by the disabled golfer Casey Martin, who wanted to be allowed to ride in a golf cart between shots, something that the P.G.A. prohibited at the time. The Court ruled in Martin’s favor.
If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.
We have the opinion in Dorsey and Hill, the Fair Sentencing Act cases. The opinion is by Breyer. The Seventh Circuit is vacated and remanded. The vote is 5-4. Justice Scalia dissents, joined by the Chief and Alito and Thomas.
The Court holds that the FSA's new mandatory minimums applies to sentences for crack cocaine imposed after the Act for pre-Act crimes. Dorsey and Hill have the more traditional line-up that we have come to expect in 5-4 cases.
The full opinion is at this link.
Justice Sotomayor has opinion. The rule of Apprendi v. NJ applies to the imposition of criminal fines. The First Circuit is reversed. The vote is 6-3. Justice Breyer dissents, joined by Kennedy and Alito.
The full opinion is available at this link.
In 1991, a Florida jury convicted Trepal, a sophisticated chemist and Mensa member, of murdering his neighbor Peggy Carr and attempting to murder six other members of Carr's family. Trepal poisoned the victims by adding the toxic element thallium to bottles of Coca-Cola in the Carrs' home.
knowledge of chemistry, as well as his possession of chemistry laboratory equipment, a number of toxic chemicals, and a homemade journal on poisons and poison detection in human organs. Finally, multiple experts uniformly testified that (1) the victims were poisoned by thallium, (2) thallium was found in both the empty and unopened Coca-Cola bottles in the victims’ home, and (3) thallium was found in a brown bottle in Trepal’s garage. Thallium is a heavy metallic element that is both rare and toxic to humans. When dissolved, it is odorless and tasteless. A lethal dose of thallium is approximately 14 milligrams per kilogram of body weight, which for an average person is around 1 gram of thallium.
The appeal involves fascinating Giglio claims regarding the FBI chemist, but in the end, the court finds them harmless. Harmless error regarding a lying chemist in a death penalty case seems like a hard (thallium?) pill to swallow.
Congrats to Rusty Hardin and his team for this great result. I wonder if the Feds are starting to get the message that these sorts of cases (Clemens, John Edwards, etc) are a waste. The federal government used to bring the biggest and most serious cases and leave the rest to the discretion of the States. Now, it seems, the feds bring anything they can bring -- big or small, important or not. If Republicans are as serious about small government as they claim to be, then I would think they should push to reduce the machinery of the federal criminal justice system.
For all the credit Lebron is getting this post-season, he's not getting enough. He's put the Heat on his shoulders in the playoffs. Wade has been average. Bosh has been hurt and hasn't been 100% since he's been back. Miller can't hit the side of a barn. The only role player doing anything is Battier. Lebron has really been unstoppable.
My personal email account (Hotmail) got hit with a virus this weekend. What a pain. How does that happen anyway? I'm trying to figure out how to stop it in the future, but the advice on the net (change your password often and check your computer for viruses) doesn't seem like it will prevent the hack.
Rajat Gupta was convicted pretty quickly. The over-under line on his sentence is ten years. Any bettors?
For those who are bored and looking for some summer reading, check out this NY Times article about a guy who crossed Niagra on a wire. If you are looking for a good beach book, try Ender's Game, which I just finished and recommend.
That's appellate specialist Paul Rashkind giving the Supreme Court update.
That's what Judge Moreno told Judge Jordan at his investiture yesterday, to much applause and laughter. Justice O'Connor spoke, as did Judge Dubina and U.S. Attorney Willie Ferrer.
Meantime, big news in the District. The U.S. Attorney's office has dismissed its case against Irfan Kahn, a case originally assigned to Judge Jordan but transferred to Judge Scola. Kahn was represnted by Federal Public Defender Michael Caruso and AFPD Sowmya Bharathi. Here is the press release from last year from the U.S. Attorney's office, which discussed taking down the Pakistani Taliban. There was much fanfare, including news reports around the world (and on this blog). Here's the NY Times article from last year detailing the arrest.
I wonder what press there will be about the dismissal.
It's today at 3:30 at the Wilkie Ferguson Jr. Courthouse and it's going to be packed. I hear there are at least 3 overflow courtrooms set up. How big will his Supreme Court investiture be?
Some other good news to report -- Wilkie Ferguson's son, Wilkie Ferguson III, is pictured below holding the Tony Award for best revival of a musical for 'Porgy and Bess,' which he currently appears in on Broadway. Very cool.
School's out, camp started, and the Heat made the Finals (take that Rumpole!).
Other than that, the SDFLA is pretty quiet.
Earlier, Sentelle and Thomas discussed the law before a luncheon audience at the Charlotte City Club. Somebody asked Thomas what he’d change about the process.
Do away with oral arguments, he said.
Thomas hasn’t spoken during the high court’s oral arguments for more than six years.
-- Paul Clement guards his oral argument prep time "jealously."
-- The WSJ blog reports that Rajat Gupta will not testify even though his lawyers said in open court on Friday that it was "highly likely." Anything wrong with making the prosecutors work over the weekend to prepare the cross even though Gupta probably knew before the weekend that it was highly likely that he was going to take the stand?
... will have her investiture today at 3pm in the new courthouse on the 13th Floor.
Does anyone miss, like I do, the investitures in the courtyard of the Dyer building with Christy's catering?
That's the message from Deputy AG James Cole's testimony before the Senate Judiciary Committee yesterday, in which he speaks out against Sen. Murkowski's (R-Ala) bill to require more disclosure under the federal criminal discovery rules. Here are his comments.
Legislation requiring earlier and broader disclosures would likely lead to an increase in such tragedies. It would also create a perverse incentive for defendants to wait to plead guilty until close to trial in order to see whether they can successfully remove identified witnesses from testifying against them.
Really? This is why prosecutors shouldn't be required to disclose Brady and Giglio well in advance of trial -- because defendants are going to wait to see if the witnesses are killed?
I've spoken out before about the need for discovery reform. But I never thought we'd see this sort of argument. I hope that the Senate sees through it.
For a long time, it was impossible getting critical discovery from the government. Now many prosecutors are taking the opposite approach -- overload the defense lawyer with mountains of discovery without identifying what is relevant or important. This happened in a recent trial before Judge Altonaga, where the prosecutor disclosed unusable electronic discovery to the defense (led by a wonderful lawyer, Sabrina Puglisi, who was appointed).
When the defense disclosed what it would be arguing at trial, the government used a computer expert to extract "Skype chats" that couldn't be seen by simply opening folders or searching on the computer. They had to be extracted by an expert. After the defendant testified, the government disclosed a 214 page log of the chats to the defense and called its expert in rebuttal. The defendant was convicted.
The Government never advised the defense of the existence of the information obtained by Agent Etter. It simply never told defense counsel that incriminating Skype chats could be extracted from the disk or that they even existed. It did not turn over the communications until the morning of its expert’s testimony, near the end of the trial. As the Defendant explains in his Reply [ECF No. 207], "[production of something in a manner which is unintelligible is really not production." (Id. 3). This is not like the cases cited by the Government in its Response [ECF No. 204] or Surreply [ECF No. 210], where courts have consistently refused to require the Government to identify exculpatory or inculpatory evidence within a larger mass of disclosed evidence. This case brings to the fore the challenges presented when electronically stored information is produced in discovery.
Commenting on the implications of criminal ESI production, the court in United States v. Briggs recently observed that while the Federal Rules of Civil Procedure need not be adopted as the standard for production of criminal ESI, the standard of Federal Rule of Civil Procedure 34(b)(2)(E)(ii) should apply and the Government be required to produce ESI in a reasonably usable form. See No. 10CR184S, 2011 WL 4017886, at *8 (W.D.N.Y. Sept. 8, 2011). If, in order to view ESI, an indigent defendant such as Stirling needs to hire a computer forensics expert and obtain a program to retrieve information not apparent by reading what appears in a disk or hard drive, then such a defendant should so be informed by the Government, which knows of the existence of the non-apparent information. In such instance, and without the information or advice to search metadata or apply additional programs to the disk or hard drive, production has not been made in a reasonably usable form. Rather, it has been made in a manner that disguises what is available, and what the Government knows it has in its arsenal of evidence that it intends to use at trial.
The Court witnessed the damaging impact the Skype communications had on Stirling’s credibility. His testimony was largely discredited without opportunity for rehabilitation or for the selection of a reasonable defense and trial strategy by counsel. Consequently, the interest of justice requires that he be afforded a new trial where he and his counsel can make an intelligent decision regarding whether and how he should testify.
This is an important ruling by a judge who understands the difficulties that are presented by e-discovery in federal criminal cases. A number of cases around the country have started saying, like Judge Altonaga, that e-discovery in criminal cases must be produced in a reasonably usable form. Not only did the government not do that in this case, but then it didn't even confront the defendant with the material and waited until rebuttal to use it.
Big congrats to Sabrina Puglisi for the big win and bringing this issue up in this District.
Meantime, Rumpole has all of the coverage of Bill Matthewman's big win in a state murder case yesterday. What a sweet way to head into his new life as a magistrate. He gets to end his trial practice with a huge NG. Well done.
"Their conduct was outrageous, disgusting, abhorrent. [I] would go so far as to describe it as being the most outrageous in … 25 years on the bench."
While it looked as if Turnoff might lock up Mayas because of his actions, the judge stopped short of that on Friday. Instead, he ordered Mayas to report daily to pre-trial release officers, surrender his passport — and hire a lawyer who is qualified to represent him in federal court.
The judge gave both sides 10 days to file legal arguments about the contempt issue, and indicated he expects to see Mayas and Roy together in his courtroom very soon so he can hear the full story.
Outside court, Petruzzi said he suspects “pigs will fly” before his client gets any money from Roy or Mayas or they pay Petruzzi's $7,500 — and rising — bill, as ordered by the judge.
“No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules,” he wrote.
However, the jurors, who deliberated for five days after a nearly two-month trial, could not reach conspiracy verdicts against Lydia Ward, Ph.D., program director for American Therapeutic in Broward, Nichole Eckert, a Fort Lauderdale therapist, or Morris and Gates. Justice Department lawyers said they plan to retry those defendants on the deadlocked counts.
THERE is a crisis in the federal appellate judiciary. No, I’m not referring to the high number of judicial vacancies or overloaded case dockets — though those are real problems. The crisis I have in mind rarely is discussed because it raises too many embarrassing questions. I’m talking about the longstanding and well-established practice of having law clerks ghostwrite judges’ legal opinions. We have become too comfortable with the troubling idea that judging does not require that judges do their own work.
With so much news and controversy about what federal appellate judges say in their opinions, it would be natural for a layperson to assume that such opinions actually come from judges’ own pens (or keyboards). But ever since the beginning of the law-clerk age, which dates back at least 70 years, most judges have been content to cast their vote in a case and then merely outline the shape of their argument — while leaving it to their clerks to do the hard work of shaping the language, researching the relevant precedents and so on. Almost all federal appellate judges today follow this procedure.
Younger members of the judiciary need to take a hard look at themselves and ask how what they are doing stacks up against the known examples of judging at its highest level — not just Judge Posner and his contemporaries who write, but also gifted writers among judges of earlier eras like Learned Hand and Oliver Wendell Holmes Jr. The next generation will need to accept the opportunities and challenges of appellate judging and dare to do all the work that befits a judge.
I think the piece way overstates the "crisis" about this issue... But what do you all think?

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


CITY OF PHILADELPHIA, et al., Defendants.
On April 13, 2018, the Court received a letter from Brown, in which he clarified that he could not produce an inmate account statement for the period from September 15, 2017 through March 15, 2018 because he was not an inmate at the time. (ECF No. 7.) Given this clarification, the Court will vacate its April 9, 2018 Order (ECF No. 6). The Court will also grant Brown leave to proceed in forma pauperis and will deem the Amended Complaint the operative pleading in this matter. Upon review of the Amended Complaint, the Court will dismiss Brown's claims against all Defendants except Officers McCafferty and Kolb, and allow him to proceed with his claims against those officers.
The Court will grant Brown leave to proceed in forma pauperis because it appears that he is not capable of prepaying the fees to commence this action. Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) applies to Brown's Amended Complaint. That statute requires the Court to dismiss the Amended Complaint if it fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). Conclusory statements and naked assertions will not suffice. Id. As Brown is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
To state a claim under § 1983, “a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). As discussed below, Brown's Amended Complaint fails to allege a meritorious claim against the named Defendants, with the exception of his claims against Officers McCafferty and Kolb.
Brown has not stated a claim against the City of Philadelphia because he has not alleged a municipal custom or policy that led to the violation of his rights. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978) (municipal liability under § 1983 must be predicated upon a municipal policy or custom). Moreover, nothing in the Amended Complaint plausibly suggests that Mayor Kenney and Commissioner Ross had any personal involvement such that they could be held responsible for anything related to Brown's arrest and subsequent prosecution. See Barkes v. First Corr. Med., Inc., 766 F.3d 307, 320 (3d Cir. 2014), reversed on other grounds, Taylor v. Barkes, 135 S.Ct. 2042 (2015). Accordingly, Brown's claims against these Defendants will be dismissed.


PART I - DEFINITION OF GROSS INCOME, ADJUSTED GROSS INCOME, TAXABLE INCOME, ETC.
In the case of taxable years beginning during 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, or 2011, the deductions allowed by section 162 which consist of expenses, not in excess of $250, paid or incurred by an eligible educator in connection with books, supplies (other than nonathletic supplies for courses of instruction in health or physical education), computer equipment (including related software and services) and other equipment, and supplementary materials used by the eligible educator in the classroom.
The deduction allowed by section 215.
Any deduction allowable under this chapter by reason of an individual remitting any portion of any jury pay to such individual's employer in exchange for payment by the employer of compensation for the period such individual was performing jury duty. For purposes of the preceding sentence, the term “jury pay” means any payment received by the individual for the discharge of jury duty.
The deduction allowed by section 179A.
Any deduction allowable under this chapter for attorney fees and court costs paid by, or on behalf of, the taxpayer in connection with any action involving a claim of unlawful discrimination (as defined in subsection (e)) or a claim of a violation of subchapter III of chapter 37 of title 31, United States Code 1 or a claim made under section 1862(b)(3)(A) of the Social Security Act (42 U.S.C. 1395y(b)(3)(A)). The preceding sentence shall not apply to any deduction in excess of the amount includible in the taxpayer's gross income for the taxable year on account of a judgment or settlement (whether by suit or agreement and whether as lump sum or periodic payments) resulting from such claim.
Any deduction allowable under this chapter for attorney fees and court costs paid by, or on behalf of, the taxpayer in connection with any award under section 7623(b) (relating to awards to whistleblowers). The preceding sentence shall not apply to any deduction in excess of the amount includible in the taxpayer's gross income for the taxable year on account of such award.
Nothing in this section shall permit the same item to be deducted more than once.
For purposes of this subsection, the term “joint return” means the joint return of a husband and wife made under section 6013.
For purposes of subsection (a)(2)(D), the term “eligible educator” means, with respect to any taxable year, an individual who is a kindergarten through grade 12 teacher, instructor, counselor, principal, or aide in a school for at least 900 hours during a school year.
Section 302 of the Civil Rights Act of 1991, referred to in subsec. (e)(1), was formerly classified to section 1202 of Title 2, The Congress, and was transferred to section 2000e–16b of Title 42, The Public Health and Welfare.
2010—Subsec. (a)(2)(D). Pub. L. 111–312 substituted “2009, 2010, or 2011” for “or 2009”.
2008—Subsec. (a)(2)(D). Pub. L. 110–343 substituted “2007, 2008, or 2009” for “or 2007”.
2006—Subsec. (a)(2)(D). Pub. L. 109–432, §108(a), substituted “2005, 2006, or 2007” for “or 2005”.
Subsec. (e). Pub. L. 109–135, §412(q)(2), substituted “subsection (a)(20)” for “subsection (a)(19)” in introductory provisions.
2004—Subsec. (a)(2)(D). Pub. L. 108–311 substituted “, 2003, 2004, or 2005” for “or 2003”.
2001—Subsec. (a)(18). Pub. L. 107–16, §§431(b), 901, temporarily added par. (18). See Effective and Termination Dates of 2001 Amendment note below.
1992—Subsec. (a)(8). Pub. L. 102–318 substituted “402(d)” for “402(e)” in heading and in text.
Subsec. (a)(2). Pub. L. 99–514, §132(b)(1), amended par. (2) generally, substituting “Certain trade” for “Trade” in heading and inserting “of employees” in subpar. (A) heading, substituting provision relating to deduction of certain expenses of performing artists for provision relating to deduction of expenses for travel away from home in subpar. (B), and striking out subpar. (C) relating to deduction of travel expenses and subpar. (D) relating to deduction of expenses of outside salesmen.
Pub. L. 99–514, §1875(c)(3), struck out “to the extent attributable to contributions made on behalf of such individual” after “section 404”.
1984—Par. (7). Pub. L. 98–369, §491(d)(2), substituted “and annuity” for “annuity, and bond purchase” in heading, and substituted “the deduction allowed by section 404” for “the deductions allowed by section 404 and section 405(c)” in text.
1981—Par. (10). Pub. L. 97–34, §311(h)(1), struck out “and the deduction allowed by section 220 (relating to retirement savings for certain married individuals)” after “retirement savings”.
Pars. (11), (12). Pub. L. 94–455, §1901(a)(8), (9), redesignated par. (11) relating to penalties forfeited because of premature withdrawal of funds from time savings accounts or deposits, as par. (12), and substituted “trade or business, to the extent” for “trade or business to the extent”.
Amendment by Pub. L. 107–16 inapplicable to taxable, plan, or limitation years beginning after Dec. 31, 2012, and the Internal Revenue Code of 1986 to be applied and administered to such years as if such amendment had never been enacted, see section 901 of Pub. L. 107–16, set out as a note under section 1 of this title.
Amendment by Pub. L. 102–486 applicable to property placed in service after June 30, 1993, see section 1913(c) of Pub. L. 102–486, set out as an Effective Date note under section 30 of this title.