This post concludes a four-part series prompted by the Supreme Court’s stay of the Eighth Circuit’s mandate in Food Marketing Institute v. Argus Leader Media, 889 F.3d 914 (2018). The first four posts (available here, here, here, and here) addressed the Food Marketing Institute’ frontal assault on the National Parks test for identifying “confidential” commercial and financial information under Freedom of Information Act Exemption 4. The Food Marketing Institute seeks to protect store-level aggregate data regarding the amounts SNAP recipients spend on foodstuffs (i.e., store-level aggregate redemption data).
Taking a different tack, on August 6, the Texas Retailers Association filed suit in the Western District of Texas to enjoin the U.S. Department of Agriculture (USDA) from releasing SNAP redemption data for grocery retailers within that state. It asserted that online retailers’ imminent entry into the SNAP market created different circumstances than those litigated in Argus Leader, necessitating a renewed competitive impact analysis. This post discusses the SNAP program’s impending expansion to include online retailers and the Texas Retailers’ suit.
Online grocery shopping has become increasingly popular. One industry study predicts that the percentage of U.S. households that purchase some groceries online will increase from 23% in 2016 to 70% by 2024 at the latest. NIELSON & FOOD MARKETING INSTITUTE, THE DIGITALLY ENGAGED FOOD SHOPPER, DEVELOPING YOUR OMNICHANNEL COLLABORATION MODEL 5 (2018)(available for download here); see Complaint, Texas Retailers Association v. U.S. Department of Agriculture, Dkt No. 18 Civ. 659, ¶31 (August 6, 2018)(available in advance.lexis.com, Law360 database, “Texas Retailers Sue USDA to Keep SNAP Data Confidential” (August 6, 2018)). According to the USDA, online retailers had long overlooked the potential market provided by SNAP beneficiaries, who received their benefits in the form of electronic benefits transfers (EBT). USDA Food & Nutrition Service, Electronic Benefits Transfer Online Purchasing Pilot Request for Volunteers at 4 (Sept. 15, 2016) (“Request for Volunteers”). USDA theorized that online retailers assumed that SNAP beneficiaries could not afford their delivery fees or lacked digital access. Id. Over time, however, online retailers’ interest in serving SNAP beneficiaries increased.
Section 4011(b) of the Agricultural Act of 2014, Pub. L. 113-79, §4011(b), 128 Stat. 649, 791, adding subsection (k) to 7 U.S.C. §2016, directed the Secretary of Agriculture to authorize online SNAP transactions, subject to the results of a pilot project testing the idea’s feasibility. On September 15, 2016, the Food and Nutrition Service (“FNS”) requested volunteers willing to participate in the pilot program. See Request for Volunteers. On January 5, 2017, USDA announced its selection of nine retailers that would participate in a pilot program covering eight states. The list included companies that largely engaged in online retailing, like Amazon and FreshDirect, brick-and-mortar supermarket chains that had created an online presence, such as Safeway and Shoprite, and at least one brick-and-mortar megastore chain offering a variety of consumer goods beyond foodstuffs, namely Walmart. Press Release, USDA Announces Retailer Volunteers for SNAP Online Purchasing Pilot (Jan. 5, 2017). USDA expects to launch the pilot project in 2019. Id. The pilot program does not include the State of Texas. Thus, Texas retailers face little prospect of competition from online retailers under the pilot program.
In its suit, the Texas Retailers Association asserts that USDA’s impending expansion of the SNAP program alters the calculus relevant to the release of store-level aggregate SNAP redemption data. See, Complaint, ¶30. The Association alleged that the Argus Leader litigation was conducted under the assumption that food retailers faced competition only from physically proximate retail outlets. Id. ¶¶27, 30. In the Texas Retailers’ view, the District Court had concluded that “the competitive harm of releasing” aggregate store level data “was attenuated by the various other factors retailers would consider in opening rival brick-and-mortar locations.” Id. at ¶27.
In addition, the District Judge had found no competitive harm in a context of informational symmetry. Id. at ¶32. In particular, South Dakota retailers were similarly situated because “most of the retailers whose information [was] subject to release [would be] getting access to similar information about their competitors.” Id. But the introduction of online retailers would create informational asymmetries. Online retailers would have access to years of brick-and-mortar stores’ sales data, while retailers selling only through brick-and-mortar stores would lack access to any historical data on the online competitors entering the market. The asymmetry could even continue after online retailers had become established in the market, because they might serve people in a broad region from a single distribution point. As a result, the precision of the aggregate sales data for online retailers and brick-and-mortar retailers would differ. Id. Physical stores would generate neighborhood-level data, reflecting their customer base; online retailers would generate only regional-level data given the breadth of the geographic area they could serve. Id. In short, the District Judge’s analysis in the Argus Leader litigation relied upon dated evidence relating to a “fundamentally different” SNAP program. Id. at ¶33.
The Complaint requests declaratory and injunctive relief. The Association sought a ruling that the release of store-level redemption data: (1) is not required because the data is exempt from disclosure under FOIA by virtue of Exemption 4, (2) is unlawful under the Administrative Procedure Act (presumably because the decision to release the information would be “arbitrary and capricious” in violation of 5 U.S.C. §706(2)(A)), and (3) is prohibited by that the Trade Secrets Act, 18 U.S.C. §1905. Complaint, ¶¶34-37. Injunctive relief was to be limited to aggregate store-level data for Texas retailers. Id. at ¶41.
The Texas Retailers’ complaint raises at least two procedural issues, issue preclusion and ripeness, and well as substantive issues.
The Texas Retailers’ case will obviously raise questions of issue preclusion (traditionally referred to as collateral estoppel). For a general discussion of issue preclusion, see 18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, ET AL., FEDERAL PRACTICE & PROCEDURE §4416 (3d ed.)(“FED. PRAC. & PROC.”)(available in westlaw); RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982)(available in westlaw). First, the Supreme Court could grant certiorari in Food Marketing Institute, and reverse the Argus Leader judgment. Though trial court judgments pending appeal can be treated as “final” so as to be accorded issue preclusion effect, the sounder course is to stay the later litigation pending final disposition of the appeal. See, 18 FED. PRAC. & PROC. §§4432, 4433.
Second, the Texas Retailers Association was not a party in the Argus Leader litigation, and is probably not sufficiently related to any of the parties in that litigation to be bound by any final judgment. See, 18 FED. PRAC. & PROC. §§4416, 4449. The Texas Retailers’ have no relationship with the South Dakota retail outlets whose information was sought (except perhaps for any chain that encompasses locations in both states). The Association might have a sufficient relationship with the USDA, which litigated the case on behalf of all SNAP participating stores. But it is not at all clear that the relationship between participating stores and the USDA suffices for issue preclusion purposes, particularly given that the FOIA request litigated covered redemption data for only South Dakota retailers. The Food Marketing Institute, which represents over 1200 food retailers, Food Marketing Institute v. Argus Leader Media, Application To Recall And Stay Mandate, etc. at 2 (Aug 7, 2017), intervened in the Argus Leader litigation, but that relationship may well not justify binding the Texas retailers, particularly those who are not members of the Food Marketing Institute.
Third, a judgment’s issue preclusion effect is limited to the issue resolved in the prior case. RESTATEMENT (SECOND) OF JUDGMENTS § 27, comment c; 18 FED. PRAC. & PROC. §4417. The Texas Retailers Association clearly seeks to distinguish the competitive harm issue tried in the Argus Leader litigation from the competitive harm issue it seeks to raise, namely whether release of store-level data will produce substantial competitive harm in the context of online retailers’ participation in the SNAP market. But the Texas Retailers’ effort to do so relies on a faulty description of the Argus Leader Court’s factual findings.
The finding of no “substantial competitive harm” in Argus Leader turned on the existence of extensive publicly-available data about retail outlets, which led the Court to conclude that adding SNAP redemption data would only marginally impact any retailer’s competitive position. The Texas Retailers’ Complaint does not suggest that plaintiff will contest the Argus Leader Court’s conclusion regarding the wealth of data already available. And, of course, the same informational asymmetries the Texas Retailers emphasize often occur in online retailers’ absence, if for instance, a brick-and-mortar chain expands into a new territory. In such circumstances, existing stores would lack relevant historical redemption data for the new entrant in the relevant geographic market. (Indeed, at least one study suggests that competition from existing retailers, rather than new entrants, have posed the greatest threats to a retailer’s existence. Daniel Hanner, Daniel Hosken, et al., Dynamics in a Mature Industry: Entry, Exit and Growth of Big-Box Grocery Retailers, JOURNAL OF ECONOMICS AND MANAGEMENT STRATEGY 22, at §§4.5, 4.6 (Spring 2015)(available at Wiley Online Library).
The Texas Retailer Association’s assertions regarding competitive harm assume a static marketplace, in which brick-and-mortar chains decline to enter the online retail market. Absent such a questionable assumption, access to information regarding redemptions at online retailers may well be just as useful to brick-and-mortar stores as the brick-and-mortar stores’ data is to online retailers. Moreover, store-level data may not be particularly helpful to online retailers that market regionally. Unless, online retailers price products differently by neighborhood, neighborhood-level data may have limited usefulness to a regional food retailer. Nor is SNAP redemption data likely help competitors formulate their marketing strategy toward non-SNAP customers, the bulk of the retail grocery customer base. The purchasing patterns of SNAP recipients do not necessarily mirror those of non-SNAP recipients.
Nevertheless, perhaps the presence of the issues outlined above distinguishes the competitive harm issue in the context of online retailers from that involved in the Argus Leader case.
The Texas Retailers’ suit may fail for lack of ripeness. Ripeness turns on an assessment of “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967).
Texas retailers will suffer little harm if judicial consideration of their claims is delayed. Only information related to actual transactions reimbursed by the federal government is at issue. Were financial or commercial information unrelated to SNAP program redemptions at issue, the retailers could argue that they need to know whether USDA can hold their information confidentially before deciding whether to forego participation in the program to protect their corporate information. See, Application to Recall and Stay Mandate, supra, at 21. But it hardly makes sense to refrain from participating in the SNAP program, the only means to sell to a segment of customers, because by doing so competitors could determine one’s aggregate sales to SNAP recipients.
The issue the Texas Retailers seek to litigate is also unfit for resolution at this stage. First, the Texas Retailers’ own description of the critical issue suggests that it is a fact-intensive one rather than as a pure question of law. See, Abbott Labs, 387 U.S. at 149. Second, no one has sought aggregate store-level redemption data for Texas retailers. Third, online retailers are not yet in a position to compete with Texas brick-and-mortar retailers because Texas is not included in USDA’s pilot project. Fourth, were a FOIA request for Texas retailers’ data submitted, the USDA would assess whether the data is protected under Exemption 4, in consultation with the affected retailers. (Note, non-mutual collateral estoppel does not apply against the federal government, U.S. v. Mendoza, 464 U.S. 154, 160-62 (1984).) And, if the retailers were dissatisfied with the USDA’s determination, they could then initiate a “reverse FOIA” action.
Indeed, if the retailers were permitted proceed now, no entity may have a sufficient interest in conducting expensive litigation to oppose them. USDA probably has little interest in vigorously contesting the Texas Retailers’ claims; indeed, in the Argus Leader litigation the USDA argued that aggregate store-level data could and should be withheld. Nor will online retailers likely possess a sufficient stake to oppose efforts to protect aggregate store-level data (which may well be of limited use to regional retailers). And no media outlet or public interest group may be willing to bear the cost of trying a case to secure access to data that they may never seek.
Trying the competitiveness issue under the National Parks test could raise troubling issues, namely the prospect of inconsistent judgments and inconsistent treatment of aggregate store level data based on different geographic markets. But two substantive grounds may allow the court to avoid a detailed, fact-specific National Parks inquiry.
First, the court could focus on another requirement of Exemption 4, namely that the information be obtained from the retailers. As I argued in Part II, the interest in the government’s fiscal transparency suggests that government reimbursement to commercial entities providing a service pursuant to a government aid program should never be considered as the commercial entity’s information. The information regards a transaction between the commercial entity and the government, or between a government beneficiary and a commercial entity; thus the redemption data is generated by coordinated action between government and the commercial entity. (Courts in the D.C. Circuit have discussed this issue in the context of access to the pricing provisions of government contracts. See, AT&T Information Systems v. General Services Adm., 627 F. Supp. 1396, 1403 (D.D.C. 1986); Racal-Milgo Government Systems v. Small Business Adm., 559 F. Supp. 4, 6 (D.D.C. 1981); but see, Hodes v. U.S. Department of the Treasury, — F. Supp. 2d —, 2018 WL 4680276 *4-*6 (D.D.C. Sept. 28, 2018).) Under such an approach, the issue of competitive harm would become irrelevant.
Second, the harms the Texas Retailers Association fears should not qualify as “competitive harm.” Both the Food Marketing Institute, in Argus Leader, and the Texas Retailers Association, in its Complaint, seem to express concern about a competitor using store-level aggregate data to aid in location selection decisions, Argus Leader Media v. United States Department of Agriculture, 224 F. Supp. 3d 827, 833-34 (D.S.D. 2016); Complaint, ¶19, or more broadly, competing for customers, Argus Leader, 224 F. Supp. 3d. at 834; Complaint, ¶¶13, 32. And given the limited nature of the data disclosed, which reveal only the aggregate redemptions at particular locations, the retailers really seek to protect information revealing the potential size of the SNAP beneficiary market. In effect, brick-and-mortar stores wish USDA to withhold information that would encourage other brick-and-mortar or online retailers to compete for SNAP recipients’ patronage. But such competition benefits SNAP recipients and does not unfairly harm retailers. Indeed, the Texas retailers essentially fear competition for SNAP customers from online retailers. Neither of these types of competitive effects should count as a competitive harm under the National Parks doctrine. Exemption 4 is not designed to function as a market barrier keeping new competitors out of the market, or, for that matter, to inhibit SNAP recipients’ access to the benefits of digital technology.
If the District Court cannot resolve the Texas Retailers’ case on the above bases, the case opens up the possibility of conflicting judgments from different federal courts. The Circuits differ in approaching the competitiveness issue. The Eighth Circuit in Argus Leader held that usefulness of information to competitors was insufficient to show competitive harm, requiring instead a showing of substantial competitive harm. Food Marketing Institute v. Argus Leader Media, 889 F.3d at 916-17. The D.C. Circuit has held that competitive harm can be established by showing that the requested data could be useful to competitors, even if that use is speculative and has not been quantified. See, e.g., State of Utah v. U.S. Dept. of the Interior, 256 F.3d 967, 970 (D.C. Cir. 2001); Public Citizen Health Research Group. v. FDA, 704 F.2d 1280, 1291 (D.C. Cir. 1983). Indeed, it has cautioned that a court “need not conduct a sophisticated economic analysis of the likely effects of disclosure” in determining whether “substantial competitive harm” would result from release of a business entity’s financial or commercial information. Id. Arguably, the First Circuit has found “substantial competitive harm” satisfied based on evidence regarding hypothetical harm from a “potential future competitor.” See, New Hampshire Right to Life v. HHS, 778 F.3d 43, 51 (1st Cir.), cert. denied, 136 S. Ct. 383 (2015). Moreover, the lower courts may well be inconsistent regarding the deference to accord agency affidavits on summary judgment, see generally, Margaret B. Kwoka, The Freedom of Information Act Trial, 61 AM. U. L. REV. 217, 244-50 (2011), and the Circuits do not agree on the standard of review for entry of summary judgment in FOIA cases where facts outside the documents in question are at issue, see, id. at 261-64. The Fifth Circuit’s last relevant Exemption 4 discussion appears in a cryptic 30-year-old decision, Calhoun v. Lyng, 864 F.2d 34 (5th Cir. 1988).
Even were the approach to recognizing substantial competitive harm perfectly consistent across the federal judiciary, the susceptibility of the information to release might well turn on the retail outlet’s geographical location. The retail grocery market is local, see, Dynamics in a Mature Industry, supra, at §3.1 & n.12, and is unlikely to transform itself into a national one in the near future. A true analysis of competitive harm argument would presumably turn on the geographic scope of the relevant local market and the attendant market conditions. Such inconsistency with regard to access to fairly basic data regarding retail outlets’ participation in a uniform national program seems troubling.
Both Food Marketing Institute’s impending certiorari petition and the Texas Retailers litigation raise important issues with regard to the scope of FOIA Exemption 4 in general and access to store-level aggregate SNAP redemptions in particular. And given the nature of Food Marketing Institute’s challenge and the textual trend in FOIA doctrine, the next year could see an upheaval in Exemption 4 law.
This entry was tagged FOIA, SNAP.


1. The amendment of § 203(a) of the Emergency Price Control Act of 1942 by § 106 of the Stabilization Act of 1944 authorized any person subject to a price schedule to file a protest "at any time."
Held that, although the time within which a protest could be filed under the original Act had expired, a person whose rights were affected was entitled to file a protest under the amendatory Act notwithstanding that the basis of his objection to the price schedule had been removed prospectively by modification of the price schedule prior to the filing of the protest. P. 328 U. S. 43.
2. The considerations of fairness which led Congress to liberalize the right of protest under the price control legislation apply equally to a regulation that has been revised and to a new regulation where the superseded regulation continues to govern the validity of transactions that occurred under its rule. P. 328 U. S. 44.
3. The contentions that the Administrator ought not to be burdened with issues arising under superseded regulations, and that the protestant here could test the validity of the price schedule by other procedures, do not warrant the construction urged by the Administrator. Pp. 328 U. S. 44-45.
The Price Administrator denied a protest filed with him by the petitioner under the Emergency Price Control Act. The Emergency Court of Appeals dismissed petitioner's complaint. 150 F.2d 963. This Court granted certiorari. 326 U.S. 710. Reversed, p. 328 U. S. 45.
This is one of a series of cases calling for the construction of amendments to the Emergency Price Control Act of 1942.
Section 203 of the Act, 56 Stat. 23, 31, 50 U.S.C. App. § 923, confined within narrow limits the right to protest to the Administrator against a price schedule promulgated by him. The Stabilization Act of 1944, 58 Stat. 632, 638, 50 U.S.C. App. § 923, greatly liberalized this right to protest. The view taken by the United States Emergency Court of Appeals of the scope of this liberalization, 150 F.2d 963, based on its prior ruling in Thomas Paper Stock Co. v. Bowles, 148 F.2d 831, led us to bring the case here. 328 U. S. 50.
The facts relevant to the immediate issue can be quickly stated. The Administrator established maximum prices for iron and steel scrap. Revised Price Schedule No. 4, 7 Fed.Reg. 1207 (February 21, 1942). This schedule, § 1304.13(f), id. at 1212, made no special provision for smelter fluxing scrap, scrap prepared for use in lead blast furnaces. Petitioner, a scrap dealer, operating in Utah, was engaged in the preparation and sale of fluxing scrap. Between April 25, 1942, and February 10, 1943, it sold a considerable amount of fluxing scrap to one of its customers, for which it was to be paid, in addition to the ceiling price for the scrap, $1.50 per ton for preparing the scrap. Inasmuch as the petitioner had been notified by the Office of Price Administration that such a charge was a violation of the Price Schedule, it merely billed its customer for the additional $1.50 per ton, but abstained from collecting it so as to avoid the penal provisions of the Price Control Act.
between the parties to the contract. Claiming that the Price Schedule governing the sales in question was invalid insofar as it failed to permit an allowance for processing, petitioners filed a protest with the Administrator. The Administrator and the Emergency Court of Appeals ruled that the protest came too late. It was timely, in any event, only if the amendment to § 203(a) of the Price Control Act of 1942 made by § 106 of the Stabilization Act of 1944, 58 Stat. 632, 638, can be invoked after the ground of objection to a price schedule had been prospectively removed. [Footnote 1] For the Administrator had completely met petitioner's objection by the time that the petitioner could avail itself of whatever enlarged right of protest the 1944 amendments conferred. The Administrator did so, in part, on December 21, 1943, by authorizing a Regional Office of the Price Administration to grant upon application an allowance of up to $1.50 per ton for processing scrap, and, on June 30, 1944, the very day that the Act of 1944 became effective, the Schedule was revised to permit such a charge on all future sales of scrap. 9 Fed.Reg. 7330.
This brings us to the controlling legislation. The procedure established by the Emergency Price Control Act of 1942 authorized "any person subject to any provision" of a price schedule issued by the Administrator to "file a protest specifically setting forth objections to any such provision," with a right of appeal to the Emergency Court of Appeals from denial of such protest by the Administrator. §§ 203(a) and 204(a), 56 Stat. 23, 31. But such protest had to be made "within a period of sixty days after the effective date" of a price schedule. By the Stabilization Act of June 30, 1944, 58 Stat. 632, 638, Congress amended the procedure so that a protest against any provision of a price schedule could be filed "at any time" after the effective date.
"The committee was concerned . . . by the fact that, in the early days of price control, many people unfamiliar with the provisions of the act might have lost their right to challenge the basic validity of a regulation by excusable failure to file a protest within the statutory period. The committee therefore recommends that, with respect to all regulations issued before July 1, 1944, a new period of sixty days from that date be provided for the filing of protests. . . ."
and subsequently became law. See H.R.Rep. No. 1593, 78th Cong., 2d Sess. (1944) 5; H.R.Rep. 1698, 78th Cong., 2d Sess. (1944) 21.
Congress was evidently impressed by the need for relief of rights lost through what it deemed excusable failure to enforce them under the original Price Control Act. Since, then, Congress lifted the sixty-day limitation retrospectively, we are relieved from considering whether, in the circumstances of this case, petitioner's right of protest would have been barred even under the 1942 Act so long as the controverted price schedule remained unmodified. [Footnote 2] But this takes us only part of the way. We need still ascertain whether the 1944 amendment authorizes a protest without a time limit only against a price schedule contemporaneously active. Does it, that is, preclude a right of protest like petitioner's against a schedule that had been superseded, although it continues to govern the validity of transactions that occurred under its rule?
subject to any provision of such regulation, order, or price schedule may, in accordance with the regulations to be prescribed by the Administrator, file a protest. . . ."
We find nothing in this language of the 1944 Amendment of § 203(a), or in its history, or in any illumination otherwise shed upon the terms of this legislation, to justify reading in a qualification that Congress has left out.
All construction is the ascertainment of meaning. And literalness may strangle meaning. But, in construing a definite procedural provision, we do well to stick close to the text, and not import argumentative qualifications from broad, unexpressed claims of policy. Insofar as such considerations are relevant here, however, they tell against cutting down the natural meaning of the language Congress chose.
Congress liberalized the right to challenge the validity of price regulations so extensively as it did, even reviving rights theretofore lapsed, because it felt, as we have seen, that rights were unfairly lost through unfamiliarity with the technical requirements of emergency legislation. Price-fixing is not static; it is a continuing process. The considerations of fairness that led Congress to give relief are the same whether a regulation was revised or remained unchanged. There is not a hint that Congress intended to draw a line so artificial as the one the Administrator would have us draw.
or for treble damages or penalties, it is immaterial that the basis of the suit is violation of a superseded price regulation. It is also suggested that the protest proceedings under § 203(a) as amended are not available to a protestant in petitioner's plight because the validity of the old schedule may be otherwise tested. The only other way implies the readiness of the customer to pay the contract price for the processing charge and its acceptance by the petitioner, subjecting both to civil and criminal actions for violations of the Act. With the consent of the trial court, the Emergency Court of Appeals could then pass on the schedule. § 204(e), 58 Stat. 632, 639, 50 U.S.C.Appendix § 924(e). It surely does not commend itself to good sense to bar a direct protest to the Administrator so easily justified by an unstrained reading of the Act, because leave might be obtained to litigate the issue in a roundabout way, involving violations of a presumptively valid regulation. And, in the event that the Administrator's insistence on the validity of the old maximum scrap price schedule is not challenged by violation, it could not be tested by bringing a suit on the contract for the additional price. Yakus v. United States, 321 U. S. 414.
Finally, apart from a construction of the statute which we are bound to reject, the Administrator seeks to invoke "the general doctrine of laches" against the petitioner, upon the particular facts of this case. The Emergency Court of Appeals may consider that issue when, upon remand, it disposes of this case in conformity with this opinion.
"[Within a period of sixty days] At any time after the issuance of any regulation or order under section 2, or in the case of a price schedule [within sixty days] at any time after the effective date thereof specified in section 206, any person subject to any provision of such regulation, order, or price schedule may, in accordance with regulations to be prescribed by the Administrator, file a protest specifically setting forth objections to any such provision and affidavits or other written evidence in support of such objections. [At any time after the expiration of such sixty days, any persons subject to any provision of such regulation, order, or price schedule may file such a protest based solely on grounds arising after the expiration of such sixty days.]"
56 Stat. 23, 31; 58 Stat. 632, 638, 50 U.S.C. App. § 923(a).
The Price Schedule in controversy was reissued on February 21, 1942. 7 Fed.Reg. 1707, and the sixty days for protest, under the 1942 Act, expired on April 21, 1942. But it was not until April 25, 1942, that petitioner was notified by the OPA that the schedule applied to its sales of fluxing scrap. Under the original Act, the sixty day limitation did not apply to "a protest based solely on grounds arising after the expiration of such sixty days." We need not decide whether petitioner could have brought itself under this escape clause. See Galban Lobo Co. v. Henderson, 132 F.2d 150; United States Gypsum Co. v. Brown, 137 F.2d 803; R. E. Schanzer, Inc. v. Bowles, 141 F.2d 262; Marlene Linens v. Bowles, 144 F.2d 874.


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Annye C. ANDERSON, as Personal Representative and Legatee of the Estate of Carrie H. Thompson, Deceased; and Robert M. Harris, Legatee of the Estate of Carrie H. Thompson, Deceased v. Stephen C. LaVERE, Delta Haze Corporation, a Nevada Corporation; Sony Music Entertainment, Inc., a Delaware Corporation, and Claud L. Johnson.
Before DICKINSON, P.J., CHANDLER AND PIERCE, JJ. James W. Shelson, Reuben V. Anderson, Robert Gregg Mayer, Stephen E. Nevas, attorneys for appellant. Richard A. Oakes, Anthony Kornarens, Anita K. Modak–Truran, John W. Kitchens, attorneys for appellee.
¶ 1. Legendary blues musician Robert Johnson died in 1938 without a will. The legatees of Johnson's deceased half-sister sought to recover royalties and fees from the use of two photographs of Johnson. Among the several reasons the trial court denied their claim was that the statute of limitations had expired. We affirm.
¶ 2. When Johnson died intestate on August 16, 1938, he had no money and appeared to have left no assets to distribute to his heirs, so no estate was opened at that time. But the increasing popularity of Johnson's music over the years following his death led Steven LaVere, a music producer from Tennessee who owns Delta Haze Corporation, to contact Johnson's half-sister, Carrie Thompson, about previously unpublished photographs of Johnson. Believing Thompson to be Johnson's only heir, LaVere requested a meeting with Thompson to discuss possibly using the photographs to launch a new release of Johnson's music.
¶ 3. On June 12, 1973, Thompson met with LaVere and showed him a photo taken by Hooks Brothers Photography in Memphis, Tennessee, which depicted Johnson wearing a pin-striped suit, fedora hat, and polished dress shoes, while holding his Gibson guitar. Thompson allowed LaVere to take this photo—later to become known as the “Hooks Brothers” photograph—to have negatives made.
¶ 5. Sony Music Entertainment, Inc. (“Sony”)—owner of the master of Johnson's recordings1 —already had published albums of Johnson's music. Based on the discovery of the photographs and biographical information of Johnson's life, LaVere pitched the idea of rereleasing Johnson's music to John Hammond, then vice-president of Sony.2 LaVere initiated these discussions with Sony in the summer of 1973.
to do any and all things necessary, and to execute any and all documents, contracts, file copyrights, and institute litigation and any and all other things necessary or proper to protect my rights or the rights of my deceased brother.
¶ 7. Thompson's attorney drafted this agreement to allow LaVere to continue negotiations with Sony pertaining to the rerelease of Johnson's recordings. Then, on November 20, 1974, LaVere and Thompson entered into a comprehensive agreement (“the 1974 Agreement”), which included a royalties and fees provision.
¶ 8. The 1974 Agreement stated that Thompson, as Johnson's known living heir, agreed to transfer to LaVere “all of her right, title and interest, including all common law and statutory copyrights, in and to the musical works and recordings of Robert L. Johnson, a photograph of Robert L. Johnson taken by Hooks Brothers Photography in Memphis, Tennessee ․ [and] a small photograph of Johnson with a guitar․” But Thompson, her heirs and assigns, would retain ownership and possession of all original photographs.
¶ 9. In return, LaVere agreed to “use his best efforts to obtain commercial utilization of such photograph or photographs and memorandum in conjunction with the recordings of and or by Robert L. Johnson as well as in books, magazines or other media, and to take all steps necessary to register or protect the statutory copyright,” and he would pay Thompson fifty percent of all royalties collected by him.
¶ 11. After Thompson and LaVere finalized the 1974 Agreement, Sony entered into a separate and independent contract with LaVere and Thompson dated November 21, 1974 (“the CBS agreement”). In this agreement, Thompson and LaVere agreed to assign their rights in Johnson's music, as well as their rights in two photographs, services, artwork, and biographical information to be used in conjunction with the release of the album Robert Johnson: The Complete Recordings (“The Complete Recordings ”). Sony agreed to pay all royalties and fees to LaVere, but it never agreed to pay Thompson any royalties or fees directly. Instead, LaVere was responsible for paying to Thompson any money generated from the CBS agreement, in accordance with the terms of the 1974 agreement.
¶ 12. After that, the project stalled,3 but LaVere continued to push Sony to release The Complete Recordings, and the album finally debuted on August 28, 1990. The album sold more than one million copies and, as of 2009, Thompson's royalty agreement with LaVere had generated more than one and half million dollars. Sony paid all money due and owing under the CBS agreement to LaVere.
¶ 13. Thompson passed away in February 20, 1983, leaving her estate to her half-sister, Annye Anderson, and her grandson, Robert Harris. Then in 1989, her legatees—Anderson and Harris—opened Johnson's estate in Leflore County. When the estate was opened, Anderson and Harris believed they were the sole heirs to the Johnson estate. But in the years to follow, litigation ensued to determine the legal heirs of Johnson's estate and, in 1998, the chancery court entered a final judgment proclaiming Claud Johnson, Johnson's biological son, as the sole heir of the estate.
¶ 14. Prior to the chancery court naming Claud Johnson as Johnson's sole heir, Anderson, as the adminstratrix of Johnson's estate, swore under oath that the photographs and copyrights of the photographs belonged to the Johnson estate. Anderson also submitted accountings listing the photographs as assets of Johnson's estate, and she requested payment for her duties as adminstratrix based on a percentage of the estate's total assets, which included the photographs.
¶ 15. Then, in 1991 the chancellor appointed Willis B. Brumsfield administrator of Johnson's estate. Brumsfield entered into an agreement with LaVere, on behalf of the estate, ratifying both the 1974 agreement and the CBS agreement. LaVere then paid all royalties and fees due and owing under the agreements to the Johnson estate. As of March 22, 1999, the property of the Johnson estate was transferred to Claud Johnson.
¶ 16. Anderson and Harris now assert that the photographs belonged to Thompson, personally, and not to Johnson's estate. While Anderson and Harris do not dispute that the copyrights in Johnson's musical compositions belong to Claud Johnson, they argue that, as the heirs of Thompson, they are entitled to the fees generated from the Johnson photographs, as those were Thompson's personal property.
¶ 17. Anderson and Harris filed a complaint against Claud Johnson, Stephen LaVere, Delta Haze,4 and Sony, asserting claims of fraud, misrepresentation, concealment, conversion, unjust enrichment, unfair competition and business practice, and breach of fiduciary duty. They also asserted a breach-of-contract claim against LaVere.
¶ 18. The complaint was filed in Hinds County, but Claud Johnson moved the court for a change of venue, which it granted. The trial court allowed Anderson and Harris to continue the action in either Copiah County, where Claud Johnson lived, or Leflore County, where Johnson's estate was administered. Anderson and Harris filed an interlocutory appeal of the transfer order, which this Court denied on November 29, 2000. Anderson and Harris then chose to transfer to Leflore County.
¶ 19. On January 31, 2001, the LaVere defendants moved for a dismissal of the claims, or, in the alternative, for summary judgement. On August 8, 2001, Sony joined that motion. Without addressing three alternative arguments, the trial court granted the motion for summary judgment on the basis of res judicata. We reversed and remanded the case to the Leflore County Circuit Court.
¶ 20. On January 4, 2005, the LaVere defendants moved to dismiss or, in the alternative, for summary judgment on the defenses not originally adjudicated, and Sony joined this motion. This circuit court took no action on this motion for six years.
¶ 21. Then, on January 21, 2011, Sony awoke the lawsuit by moving for approval of a license to use the photographs of Johnson for a new compilation of Johnson's music called The Centennial Collection, which was to be a tribute to Johnson's 100th birthday. Sony sought permission among all parties to use the photographs in the packaging of this album, subject to a licensing fee which would be held by Sony until resolution of this dispute. LaVere and Claud Johnson agreed, but Anderson and Harris did not, so Sony filed an Emergency Motion for a License, which the trial court granted.
¶ 22. In April 2011, both Sony and the LaVere defendants filed separate supplemental motions for summary judgment. Claud Johnson joined Sony's motion. Anderson and Harris then filed a motion for partial summary judgment against the LaVere defendants. The trial court granted the LaVere defendants' motion to renew defenses not adjudicated in their motion for summary judgment, eventually holding that the doctrines of laches, judicial estoppel, and collateral estoppel precluded all of the plaintiffs' claims.
¶ 23. The trial court also granted Sony's supplemental motion for summary judgment-which was joined by Claud Johnson, and the LaVere defendants' supplemental motion for summary judgment, finding that the claims also were time-barred. The trial court entered judgment orders against Anderson and Harris and denied any remaining motions. Anderson and Harris now appeal, arguing that the trial court improperly granted all of the defendants' motions for summary judgment.
¶ 24. We apply a de novo standard of review to the trial court's ruling on summary judgment.5 Summary judgment is appropriate only when there is no genuine issue of material fact.6 If there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that movant's favor.7 In considering a motion for summary judgment, courts view the evidence in the light most favorable to the nonmoving party. Although appellants raise several issues, we shall address only the statute of limitations, which we find to be dispositive.
Anderson and Harris failed to argue waiver of the state statute-of-limitations defenses in the trial court.
¶ 26. At oral argument, Anderson and Harris expanded their position, asserting that the LaVere defendants, Sony, and Claud Johnson had waived the right to argue any statute of limitations as an affirmative defense. After requesting supplemental briefing on this issue, we find that the Anderson and Harris are procedurally barred from making this broader argument on appeal.
¶ 28. At the inception of this litigation in 2000, Claud Johnson and Sony asserted all applicable statutes of limitations as affirmative defenses. Similarly, in their answer, the LaVere defendants averred that the statute of limitations in Section 15–1–1, et seq., of the Mississippi Code barred Anderson's and Harris's claims. While the LaVere defendants, Sony, and Claud Johnson did not pursue the statute of limitations as a defense for some time, Anderson and Harris did not argue wavier.
¶ 29. Then, in April 2011, the LaVere defendants filed a supplemental motion for summary judgment, adding both federal preemption and the Federal Copyright Act statute of limitations as affirmative defenses. In response to this motion, Anderson and Harris—for the first time—argue waiver. Anderson and Harris, however, argue that waiver applied only to the LaVere defendants, and only to the federal preemption and the copyright statute of limitations defenses. But, in their response to the LaVere defendants' supplemental motion, Anderson and Harris concede that the LaVere defendants properly pleaded and did not waive their right to assert the state statute of limitations under Section 15–1–49.
¶ 30. Anderson and Harris, however, argue that the trial court already found that they did not waive their right to object to the LaVere defendants' untimely assertion of affirmative defenses. After filing their supplemental motion for summary judgment, the LaVere defendants filed a “motion seeking determination that plaintiffs have waived the right to object to the assertion of additional defenses by defendants LaVere and Delta Haze, or in the alternative, for leave to amend answer to assert additional defenses .” In response, the trial court issued an order ruling that Anderson and Harris did not waive their right to object to the LaVere defendants' addition of two new affirmative defenses—federal preemption and the copyright act statute of limitations. The trial court then granted the LaVere defendants leave to amend their original answers to include these defenses. This ruling clearly applied only to the addition of any affirmative defenses not originally pleaded in the LaVere defendants' answers, and therefore does not include the three-year state statute of limitations, which all defendants pleaded in their original answers.
¶ 31. The record indicates that, prior to oral argument before this Court, Anderson and Harris never asserted that the LaVere defendants, Sony, and Claud Johnson had waived the state statute of limitations as an affirmative defense. We therefore must find, consistent with our longstanding caselaw, that Anderson and Harris are barred from raising this argument for the first time on appeal.13 Further, because we find the state statute of limitations controls this case, it is unnecessary to address whether the trial court properly allowed the LaVere defendants to raise federal preemption and the Federal Copyright Act statute of limitations eleven years into the litigation.
Anderson and Harris failed to file suit within the statute of limitations.
¶ 32. Section 15–1–49 states that “[a]ll actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.” Anderson and Harris do not dispute that Section 15–1–49 is the controlling statute of limitations14 which applies to claims of fraud,15 misrepresentation,16 concealment,17 breach of fiduciary duty,18 conversion,19 unjust enrichment,20 unfair competition and business practice,21 and breach of contract.22 Thus, Section 15–1–49 clearly governs all of Anderson's and Harris's claims.
¶ 33. Under Section 15–1–49, the three-year statute of limitations begins to run when the cause of action accrues,23 and we have held that the “cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested.”24 The trial court found that Anderson's and Harris's claims accrued no later than August 29, 1990, when they learned that Sony intended to release The Complete Recordings using the photographs. And Anderson and Harris filed their complaint in 2000—long after the three-year statute of limitations expired. Anderson and Harris assert, however, that the statute of limitations was tolled by this Court's holding in LaVere I,25 and that their claims did not accrue until October 15, 1998, when the chancery court adjudicated Claud Johnson sole heir of the Johnson estate.
¶ 34. In LaVere I, we stated that Anderson and Harris had no obligation to litigate ownership of the photographs in the Johnson estate heirship proceeding.26 Anderson and Harris argue that this statement tolled the statute of limitations for all of their claims arising out of the ownership of the photographs until after the conclusion of the heirship proceeding in 1998. We disagree.
¶ 35. In LaVere I, we merely held that Anderson and Harris were under no obligation to litigate, nor could they litigate, ownership of the photographs in the heirship proceedings.27 Our holding in no way tolled the statute of limitations on any claims they may have had against the LaVere defendants over ownership of the photographs. Anderson and Harris could have brought a separate civil action asserting their claims.
¶ 36. Also, we note that during the heirship proceedings, Anderson and Harris did not claim the photographs belonged to Thompson. Rather, they claimed the photographs were assets of the Johnson estate. They assert that they did not bring a separate action because they thought they were the only heirs to the Johnson estate, and thus they were entitled to the photographs as Johnson's heirs. So, only after losing the estate case did Anderson and Harris bring a separate action claiming that Thompson—and not the estate—owned the photographs. This strategy cannot serve to toll the statute of limitations.
¶ 37. Though it is likely, as the trial court ruled, that Anderson and Harris discovered their cause of action in 1990 when they learned of Sony's upcoming release of The Complete Recordings, there is no question that they were aware of their injury—and their claims against all appellees—at the latest in 1991, when LaVere began paying all royalties and fees under the 1974 agreement to the Johnson estate, rather than to Thompson's estate. Claiming to be Johnson's sole heirs, both Anderson and Harris were parties to all of the Johnson estate proceedings. Indeed, Anderson and Harris opened Johnson's estate, and Anderson acted as the Aministratrix of that estate until 1991. Anderson obviously was aware that LaVere had made royalty payments to the Johnson estate, rather than the Thompson estate, since it was Anderson who listed the photographs as assets of the Johnson estate.
¶ 38. Additionally, Anderson and Harris—as Thompson's legatees—knew in 1991 that Thompson's estate had not been paid any money earned from the use of the pictures. Neither Anderson nor Harris disputes that he or she knew the funds were being paid to the Johnson estate. Instead, they argue that, since they believed themselves to be Johnson's heirs and entitled to the profit from the pictures through Johnson's estate, there was no need to make the claim. We must reject this argument. We find that Anderson's and Harris's cause of action accrued, at the latest, in 1991, when LaVere began paying royalties and fees to the Johnson estate. Therefore, Anderson's and Haris's claims are time-barred under the three-year statute of limitations in Mississippi Code Section 15–1–49.
¶ 39. We find that Anderson's and Harris's claims are barred by the three-year statute of limitations in Section 15–1–49, so we affirm the trial court's grant of summary judgment.
1. Johnson originally recorded his masters with American Record Company in 1936 and 1937. A few years later, Columbia Broad Casting Systems (“CBS”) purchased American Record Company. Thereafter, Sony Music purchased CBS. Throughout these acquisitions, Johnson's masters changed ownership to each acquiring company, leaving Sony the current owner.
2. Though at this point in time Sony was known as CBS, Sony later purchased CBS. For purposes of clarity, CBS will be referred to as Sony, since Sony now stands in the place of CBS and is party to this lawsuit.
3. Issues included a Robert Johnson impersonator claiming royalties from the music; a rumor that Johnson had a wife and child, bringing into question whether Thompson was Johnson's lawful heir; and a threatened lawsuit from Mack McCormick, who claimed a contractual right to the photographs.
4. Stephen LaVere owns Delta Haze. Further, Delta Haze and LaVere have jointly submitted briefs and arguments throughout all of this litigation. Thus, “the LaVere defendants” will be used to refer to Delta Haze and LaVere collectively.
5. Indem. Ins. Co. of N. Am. v. Guidant Mut. Ins. Co., 99 So.3d 142, 149 (Miss.2012).
6. Miss. R. Civ. P. 56(c).
7. Chisolm v. Miss. Dep't of Transp., 942 So.2d 136 (Miss.2006).
8. 17 U.S.C. § 507 (West, Westlaw through P.L. 113–74 (excluding P .L. 113–66 and 113–73) approved 1–16–14.).
9. Miss.Code Ann. § 15–1–49 (Rev.2012).
10. See Meadows v. Blake, 36 So.3d 1225 (Miss.2010).
11. MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 180 (Miss.2006).
12. Flagstar Bank, FSB v. Danos, 46 So.3d 298, 311 (Miss.2010) (stating “we need not consider this issue, which has been raised for the first time on appeal”) (citing Alexander v. Daniel, 904 So.2d 172, 183 (Miss.2005)).
13. Boyles v. Miss. State Oil & Gas Bd., 794 So.2d 149, 153 (Miss.2001) (“It is a well-settled proposition that this Court will not review matters on appeal that were not considered by the lower court.”).
14. It should be noted that, in their brief, Anderson and Harris argued that the constructive-trust statute of limitations under Mississippi Code Section 15–1–39 controlled their claim for unjust enrichment. At oral argument, however, Anderson and Harris informed the Court that they were abandoning their constructive-trust argument. Thus, we will not consider the ten-year, constructive-trust statute of limitations.
15. Fletcher v. Lyles, 999 So.2d 1271, 1276 (Miss.2009) (This Court applied the three-year statute of limitations to fraud, negligence, and breach-of-contract claims.).
16. CitiFinancial Mortgage Co. v. Washington, 967 So.2d 16, 17 (Miss.2007) (This Court applied the three-year limitations period to breach of fiduciary duty, breach of implied covenant of good faith and fair dealing, fraudulent misrepresentation, and breach of contract.).
17. Carter v. Citigroup, 938 So.2d 809, 817 (Miss.2006) (citing Stephens v. Equitable Life Assurance Soc.'y of U.S., 850 So.2d 78, 82 (Miss.2003) (holding that “this Court has also applied the three-year statute of limitations [in Mississippi Code Section 15–1–49] for fraudulent concealment, negligent hiring, and concealment).
18. Carter, 938 So.2d at 817 (citing Am. Bankers' Ins. Co v.. Wells, 819 So.2d 1196, 1200 (Miss.2001) (holding that “there is a three year statute of limitations [in Mississippi Code Section 15–1–49] for claims of breach of a fiduciary duty, misrepresentation, and conspiracy)).
19. Estate of Martin Luther King Jr., Inc. v. Ballou, 856 F.Supp.2d 860, 863 (S.D.Miss.2012) (holding that “claims for conversion and replevin are governed by Mississippi's residual statute of limitations [Mississippi Code Section 15–1–49] ․ ).
20. Miss.Code Ann. § 15–1–49(1) (Rev.2012) (“All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.”).
22. CitiFinancial Mortgage, 976 So.2d at 17 (This Court applied Section 15–1–49 to plaintiff's breach-of-contract claim.).
23. Miss.Code Ann. § 15–1–49(1) (Rev.2012).
24. Bullard v. Guardian Life Ins. Co. of Am., 941 So.2d 812, 815 (Miss.2006) (quoting Forman v. Miss. Publishers Corp., 195 Miss. 90, 14 So.2d 344, 346 (1943)).
25. Anderson v. LaVere, 895 So.2d 828 (Miss.2004).
WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. KITCHENS, J., NOT PARTICIPATING.


Pursuant to T.C.A. § 55-10-403(k), it is the duty of the sheriff to properly dispose of a vehicle used in the commission of a person's second or subsequent violation of T.C.A. § 55-10-401 (driving under the influence of intoxicant, drug or drug producing stimulant), that was seized by the sheriff’s office, once it has been forfeited pursuant to Title 40, Chapter 33, Part 2. T.C.A. § 40-33-210(d).
Forfeited vehicles may be used by the sheriff’s office in the drug enforcement program for a period not to exceed five years. T.C.A. §§ 40-33-211(e) and 53-11-201(b)(2)(C). See also Op. Tenn. Atty. Gen. 99-190 (September 28, 1999). Vehicles not used in the local drug enforcement program must be sold. Revenue derived from the sale of vehicles seized by the sheriff’s office and forfeited under T.C.A. § 55-10-403(k) is retained by the sheriff’s office and used during each fiscal year to compensate the sheriff’s office for the reasonable and direct expenses involved in confiscating, towing, storing, and selling the forfeited vehicles. All expenses claimed by the sheriff’s office are subject to audit and review by the comptroller of the treasury to determine that the expenses claimed are direct and reasonable. Any remaining revenue must be transmitted to the Department of Health no later than June 30 of each fiscal year. T.C.A. § 40-33-211(f).
It is the duty of the sheriff to properly dispose of a vehicle, that was seized by the sheriff’s office pursuant to T.C.A. § 55-50-504(h), once it has been forfeited pursuant to Title 40, Chapter 33, Part 2. T.C.A. § 40-33-210(d).
Forfeited vehicles may be used by the sheriff’s office in the drug enforcement program for a period not to exceed five years. T.C.A. §§ 40-33-211(e) and 53-11-201(b)(2)(C). Vehicles not used in the local drug enforcement program must be sold. Revenue derived from the sale of vehicles seized by the sheriff’s office and forfeited under T.C.A. § 55-50-504(h) is retained by the sheriff’s office and used during each fiscal year to compensate the sheriff’s office for the reasonable and direct expenses involved in the confiscating, towing, storing, and selling the forfeited vehicles. All expenses claimed by the sheriff’s office are subject to audit and review by the comptroller of the treasury to determine that the expenses claimed are direct and reasonable. Any remaining revenue must be transmitted to the Department of Health no later than June 30 of each fiscal year. T.C.A. § 40-33-211(c).
Pursuant to T.C.A. § 55-16-106(a), it is the duty of the sheriff to sell at a public auction the abandoned, immobile, or unattended motor vehicles that the sheriff’s office has taken into custody and that have not been reclaimed as provided for in T.C.A. § 55-16-105. The sheriff’s office must issue the purchaser of the motor vehicle a sales receipt. The purchaser takes title to the motor vehicle free and clear of all liens and claims of ownership. Upon presentation of the sales receipt, the Department of Safety must issue a certificate of title to the purchaser. T.C.A. § 55-16-106(b).
The proceeds of the sale of an abandoned, immobile, or unattended motor vehicle are to be used to pay the expenses of the auction; the costs of towing, preserving and storing the vehicle; and all notice and publication costs incurred pursuant to T.C.A. § 55-16-105. Any remainder from the proceeds of a sale must be held for the owner of the vehicle or entitled lienholder for 45 days, and then may be deposited in a special fund that is to remain available to pay auction, towing, preserving, storage and all notice and publication costs that result from placing other abandoned, immobile, or unattended vehicles in custody, whenever the proceeds from a sale of other abandoned, immobile, or unattended motor vehicles are insufficient to meet these expenses and costs. Whenever the chief fiscal officer of the county finds that moneys in the special fund are in excess of reserves likely to be needed for the purposes thereof, the officer may transfer the excess to the county general fund, but in such event, claims against the special fund, if the special fund is temporarily exhausted, shall be met from the general fund to the limit of any transfers previously made thereto. T.C.A. § 55-16-106(d) and (e).


text:
PEOPLE OF THE PHILIPPINES, Plaintiff–Appellee, v. JAVIER MORILLA Y AVELLANO, Accused–Appellant.
Before us is an appeal filed by accused–appellant Javier Morilla y Avellano (Morilla) from the Decision1 of the Court of Appeals which affirmed his conviction and that of his co–accused Ronnie Mitra y Tena (Mayor Mitra) by the trial court, sentencing them2 to suffer the penalty of life imprisonment and to pay a fine of P10,000,000.00 each.
WHEREFORE, premises considered, judgment is hereby rendered finding accused Ronnie Mitra y Tena and Javier Morilla y Avellana GUILTY beyond reasonable doubt of the offense charged. Accordingly, both accused are hereby sentenced to suffer the penalty of life imprisonment and to pay a fine of P10,000,000.00 each. Accused Willie Yang y Yao and Ruel Dequilla y Regodan are hereby ACQUITTED for failure of the prosecution to prove their guilt beyond reasonable doubt and are ordered immediately released from custody unless held for some other lawful cause.
The trial court dismissed the arguments of Mayor Mitra that he was without any knowledge of the contents of the sacks and that he was merely requested to transport them to Manila on board his Starex van. He explained that he only accommodated the request of a certain Ben Tan because the latter bought his fishing boat. It likewise dismissed the defense of ambulance driver Morilla of lack of knowledge of the illegality of the contents. Morilla insisted that he thought that he was just transporting wooden tiles and electronic spare parts together with Dequilla. The other passenger of the ambulance, Yang, in his defense, did not bother to inquire about the contents of the vehicle as he was merely an accommodated passenger of the ambulance.
We affirm the ruling but modify the penalty imposed.
The finding of conspiracy by both courts is correct.
Morilla argues that the mere act of driving the ambulance on the date he was apprehended is not sufficient to prove that he was part of a syndicated group involved in the illegal transportation of dangerous drugs.
In conspiracy, it need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The assent of the minds may be and, from the secrecy of the crime, usually inferred from proof of facts and circumstances which, taken together, indicate that they are parts of some complete whole.22 In this case, the totality of the factual circumstances leads to a conclusion that Morilla conspired with Mayor Mitra in a common desire to transport the dangerous drugs. Both vehicles loaded with several sacks of dangerous drugs, were on convoy from Quezon to Manila. Mayor Mitra was able to drive through the checkpoint set up by the police operatives. When it was Morilla’s turn to pass through the checkpoint, he was requested to open the rear door for a routinary check. Noticing white granules scattered on the floor, the police officers requested Morilla to open the sacks. If indeed he was not involved in conspiracy with Mayor Mitra, he would not have told the police officers that he was with the mayor.
His insistence that he was without any knowledge of the contents of the sacks and he just obeyed the instruction of his immediate superior Mayor Mitra in driving the said vehicle likewise bears no merit.
In a similar case of People v. Libnao,25 this Court upheld the conviction for illegal transportation of marijuana of Libnao and Nunga, who were caught carrying a bag full of marijuana leaves when they were flagged down on board a passing tricycle at a checkpoint.
However, we modify the penalty imposed by the trial court as affirmed by the Court of Appeals.
Originally, under Section 15 of Republic Act No. 6425,26 the penalty for illegal transportation of methamphetamine hydrochloride was imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos. Pursuant to Presidential Decree No. 1683,27 the penalty was amended to life imprisonment to death and a fine ranging from twenty to thirty thousand pesos. The penalty was further amended in Republic Act No. 7659,28 where the penalty was changed to reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos.
As to the penalties imposed by the trial court and as affirmed by the appellate court, we find the same in accord with law and jurisprudence. It should be recalled that at the time of the commission of the crime on September 6, 1991, Section 15 of R.A. No. 6425 was already amended by Presidential Decree No. 1683. The decree provided that for violation of said Section 15, the penalty of life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00 shall be imposed. Subsequently, however, R.A. No. 7659 further introduced new amendments to Section 15, Article III and Section 20, Article IV of R.A. No. 6425, as amended. Under the new amendments, the penalty prescribed in Section 15 was changed from “life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00” to “reclusion perpetua to death and a fine ranging from P500,000.00 to P10 million.” On the other hand, Section 17 of R.A. No. 7659 amended Section 20, Article IV of R.A. No. 6425 in that the new penalty provided by the amendatory law shall be applied depending on the quantity of the dangerous drugs involved.
The trial court, in this case, imposed on petitioner the penalty of reclusion perpetua under R.A. No. 7659 rather than life imprisonment ratiocinating that R.A. No. 7659 could be given retroactive application, it being more favorable to the petitioner in view of its having a less stricter punishment.
1 Penned by Associate Justice Mariflor P. Punzalan Castillo with Associate Justices Rosmari D. Carandang and Ramon M. Bato, Jr., concurring. Rollo, pp. 2–24.
2 From the Records of the case, no appeal was timely made by the other accused, Mayor Mitra.
3 Records, Vol. I, p. 2.
4 In a Letter dated 23 October 2001, Chief State Prosecutor Jovencito R. Zuño of the Department of Justice requested then Chief Justice Hilario G. Davide, through Court Administrator (now Associate Justice of this Court) Presbitero J. Velasco, Jr. for a transfer of venue of the case from Real, Quezon to any Regional Trial Court in Metro Manila, preferably in Quezon City, due to the large quantity of the confiscated drugs and difficulty on the part of the Government to prosecute the case in Quezon from Metro Manila. (Records, pp. 49–50). The said request was granted by this Court in a Resolution dated 6 March 2002. (Id. at 97).
5 Republic Act No. 6425 or The Dangerous Drugs Act of 1972. – Art. III, Section 15. Sale, Administration, Dispension, Delivery, Transportation and Distribution of Regulated Drugs. The penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, dispense, deliver, transport or distribute any regulated drug. In case of a practitioner, the maximum of the penalty herein prescribed and the additional penalty of the revocation of his license to practice his profession shall be imposed.
6 CA rollo, pp. 66–67.
15 Supplemental Brief. Id. at 52–53.
16 Rule 115, Section 1(b). – To be informed of the nature and cause of the accusation against him.
17 Supplemental Brief. Rollo, pp. 53–54.
Failure to move to quash or to allege any ground therefor. — The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule.
19Figueroa v. People, 580 Phil. 58, 73–74 (2008).
20 Revised Penal Code, Article 8.
21Ho Wai Pang v. People, G.R. No. 176229, 19 October 2011, 659 SCRA 624, 637 citing People v. Miranda, G.R. No. 92369, 10 August 1994, 235 SCRA 202, 214.
22 Id. citing People v. Ponce, 395 Phil. 563, 572 (2000); People v. Mateo, Jr., 258–A Phil. 886, 904 (1989).
23People v. Baludda, 376 Phil. 614, 626 (1999).
24People v. Del Mundo, 418 Phil. 740, 754–755 (2001).
25 443 Phil. 506 (2003).
27 Presidential Decree No. 1683. – Amending Certain Sections of Republic Act No. 6425, As Amended, Otherwise Known as the Dangerous Drugs Act of 1972 and for Other Purposes.
Section 15. Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated Drugs. — The penalty of life imprisonment to death and a fine ranging from twenty to thirty thousand pesos shall be imposed upon any persons who, unless authorized by law, shall sell, dispense, deliver, transport or distribute any regulated drug. If the victim of the offense is a minor, or should a regulated drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed.
28 An Act To Impose The Death Penalty On Certain Heinous Crimes, Amending For That Purpose The Revised Penal Laws, As Amended, Other Special Penal Laws, And For Other Purposes.
Section 15. Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated Drugs. – The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, dispense, deliver, transport or distribute any regulated drug.
Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a regulated drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed.
29 Supreme Court Administrative Circular No. 6–A–92, 21 June 1993 Re: The Correct Application of the Penalties of Reclusion Perpetua and Life Imprisonment; Potenciano v. Reynoso, 449 Phil. 396, 409 (2003).

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


text:
Sol. Gen. Richards, for defendant in error.
Mr. Justice SHR AS delivered the opinion of the court.
On March 23, 1895, John S. Seymour, commissioner of patents, on appeal in an interference proceeding between the applications of Alfred S. Bernardin and William H. Northall, decided that Bernardin was entitled to a patent for the invention involved in the interference. From this decision an appeal was taken by Northall to the court of appeals of the District of Columbia, and the decision of the commissioner was by that court reversed. Northall v. Bernardin, 7 App. D. C. 452.
Bernardin then instituted proceedings in the supreme court of the District of Columbia, seeking to compel the commissioner to issue a patent in accordance with his previous decision, claiming that the act of congress approved February 9, 1893, which, in form, confers jurisdiction upon the court of appeals of the District of Columbia to hear appeals from the action of the commissioner of patents, is unconstitutional and void, in that it attempts to confer jurisdiction upon that court to review or reverse the action of the commissioner.
The supreme court of the District of Columbia dismissed the petition for mandamus, and, on appeal, the court of appeals of the District sustained the judgment of the supreme court. U. S. v. Seymour, 10 App. D. C. 294.
Thereafter John S. Seymour resigned his office as commissioner of patents, and, on April 12, 1897, Benjamin Butterworth was appointed his successor. On April 17, 1897, Bernardin filed a new petition for mandamus in the supreme court of the District of Columbia, which was dismissed, and that decision was, on appeal to the court of appeals of the District, on May 11, 1897, affirmed. [169 U.S. 600, 602] On May 25, 1897, a writ of error was allowed from this court, and, while the case was here pending, on January 16, 1898, Benjamin Butterworth died, and C. H. Duell was thereafter appointed to the office thus left vacant, and a motion has been made for leave to substitute Duell in the stead of Butterworth, notwithstanding that by the death of the latter the action had abated.
In Thompson v. U. S., 103 U.S. 480 , the distinction is pointed out between proceedings where the obligation sought to be enforced devolves upon a corporation or continuing body and those where the duty is personal with the officer. In the former case there is no abatement. The duty is perpetual [169 U.S. 600, 604] upon the corporation. In the latter the delinquency charged is personal, and involves no charge against the government, against which a proceeding would not lie.
U. S. v. Chandler, 122 U.S. 643 , was the case of a writ of error in review of a judgment of the supreme court of the District of Columbia refusing a mandamus against William E. Chandler, secretary of the navy, to require of him the performance of certain alleged official duties. When the case was called, it appeared that Mr. Chandler was no longer secretary, and that the office was filled by his successor. Thereupon this court, upon the authority of U. S. v. Boutwell, held that the suit had abated, and dismissed the writ of error.
In Stock Co. v. Smith, 165 U.S. 28 , 17 Sup. Ct. 225, the subject was considered at some length. There a bill had been filed against Hoke Smith, as secretary of the interior, to compel him to cause patents to be issued to the plaintiff for certain tracts of land. The supreme court of the District sustained a demurrer to the bill, and dismissed the suit. While an appeal to this court was pending, Hoke Smith resigned his office, and it was held that the bill could not be amended by making his successor a defendant, because he was not in office before the bill was filed, and had no part in the doings complained of; and accordingly the cause was remanded, with directions to dismiss the bill. In discussing the case, Mr. Justice Gray cited the cases just mentioned, and several others to the same effect, and again pointed out the difference between the case of a public officer of the United States and that of a municipal board, which is a continuing corporation, although its individual members may be changed, to which, in its corporate capacity, a writ of mandamus may be directed, and in respect to which the language of Chief Justice Waite in Commissin ers v. Sellew, 99 U.S. 626 , was quoted: 'One of the objects in creating such corporations, capable of suing and being sued, and having perpetual succession, is that the very inconvenience which manifested itself in Boutwell's Case may be avoided.' [169 U.S. 600, 605] In the absence, therefore, of statutory authority, we cannot, after a cause of this character has abated, bring a new party into the case. Nor is the want of such authority supplied by the consent of a person not a party in the cause.
In view of the inconvenience, of which the present case is a striking instance, occasioned by this state of the law, it would seem desirable that congress should provide for the difficulty by enacting that, in the case of suits against the heads of departments abating by death or resignation, it should be lawful for the successor in office to be brought into the case by petition, or some other appropriate method.
The motion is refused, and the judgment of the court of appeals is reversed, the costs in this court to be paid by the plaintiff in error, and the cause remanded to that court with directions to reverse the judgment of the supreme court of the District of Columbia, and remand [169 U.S. 600, 606] the cause to that court with directions to dismiss the petition for the writ of mandamus because of the death of the defendant, Butterworth.

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William H. (Chip) Mellor serves as chairman and founding general counsel of the Institute for Justice, which he co-founded in 1991. He was IJ’s president and general counsel from 1991 to 2015. He has litigated cutting-edge constitutional cases nationwide protecting economic liberty, property rights, school choice and the First Amendment, notably achieving the first federal appellate court victory for economic liberty under the 14th Amendment since the New Deal by overturning Tennessee’s prohibition on retail casket sales.
Under Mellor’s leadership IJ pioneered a new approach to strategic public interest litigation that combines courtroom advocacy with award-winning media relations, activism and strategic research to secure constitutional protection for individual rights. He grew IJ from a five-person startup into the National Law Firm for Liberty with a staff of nearly 100, including over 40 attorneys, and an annual budget of $20 million. IJ is headquartered in Arlington, Virginia, and has offices in Arizona, Florida, Illinois, Minnesota, Texas and Washington state.
While Mellor was president, IJ litigated five U.S. Supreme Court cases, winning all but one: In Zelman v. Simmons-Harris, IJ successfully defended Cleveland’s school choice program from a lawsuit brought by the teachers’ unions and other school choice opponents, establishing the constitutionality of school vouchers. In Granholm v. Heald, the Supreme Court struck down New York’s ban on interstate wine sales, allowing small wineries and consumers represented by IJ to successfully challenge a government-imposed wholesale wine and liquor monopoly. In Kelo v. City of New London, the Supreme Court ruled against IJ in a controversial 5–4 decision that held private property can be taken for private development. IJ mobilized unprecedented public outrage over the decision to secure legislative reforms or state supreme court decisions in 46 states that strengthened protection for property rights. In Arizona Christian School Tuition Organization v. Winn, the Supreme Court dismissed an Establishment Clause challenge to Arizona’s scholarship tax credit program because the Court recognized that individuals who donate to private, nonprofit scholarship-granting organizations spend their own money—not state funds. In Arizona Freedom Club PAC v. Bennett, the Supreme Court struck down a key provision of Arizona’s system of government-funded campaigns, which showered money on campaigns that took government funding when privately financed and independent speakers opposing them spoke more than the government wanted.
Mellor co-authored with the Cato Institute’s Robert Levy The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, which examines 12 Supreme Court cases that effectively amended the Constitution and profoundly reshaped the role of government in America. In The Dirty Dozen, Mellor and Levy argue for judicial engagement and for a Supreme Court that will protect individual rights and restore limits on government power.
Mellor launched the Institute for Justice Clinic on Entrepreneurship at the University of Chicago in 1998 and IJ’s Center for Judicial Engagement in 2011.
Prior to founding IJ, Mellor served as president of the Pacific Research Institute for Public Policy, a nationally recognized think tank located in San Francisco. Under his leadership, the Institute commissioned and published path-breaking books on economic liberty, property rights, and technology and the First Amendment that formed the long-term, strategic litigation blueprint for the Institute for Justice.
Mellor also served in the Reagan Administration as deputy general counsel for legislation and regulations in the Department of Energy, and from 1979 to 1983 he practiced public interest law with Mountain States Legal Foundation in Denver. Mellor received his J.D. from the University of Denver School of Law in 1977. He graduated from Ohio State University in 1973.
Mellor was awarded the Bradley Prize in 2012, was recognized by the American Bar Association as a Legal Rebel – an individual who remakes their corner of the legal profession – and was profiled in the Wall Street Journal Weekend Interview on January 7, 2012, as well as in Reason magazine in March 2008.
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IJ Clients Ask: Got Free Speech?

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v. 1 – The lake spoken of in this verse is the Sea of Galilee.
Jesus would sit in the boat for two reasons (1) it would keep the crowds from pressing in on him and (2) it would allow him to speak to a larger crowd by using natural acoustics.
v. 2 – A parable is a comparison between two things, the one to explain the other. In the case of Scripture, parables generally use a description of something natural/earthly to explain something spiritual/heavenly.
v. 4 – “Birds” are sometimes used to describe Satan.
v. 8 – A good harvest from a crop would be ten times – so this is a magnificent / supernatural harvest.
v. 9 – Jesus is calling for his audience to make an intentional effort to comprehend what he is saying – not only the story but it’s underlying meaning.
v. 10 – The twelve are the apostles he selected in chapter 3.
vv. 11-12 – At this juncture in time, Christ is maintaining secrecy about the Kingdom, perhaps to prevent people from forcefully making Him the “Messiah” they imagined (an armed, military victor).
Jesus quotes from Isa. 6:9-10.
v. 14 – The farmer is the individual speaking God’s Word. At this juncture it is Jesus, later it will be the disciples and on to the present when it is us.
vv. 21-23 – The light is likely the Kingdom of God. While it is being spoken of in a hidden manner now, it will be brought out into the open to shine its light upon everyone and everything.
The Kingdom of God provides a message of hope, but also a method of judgment. The secrets of the heart will be revealed by the light of God’s revelation, darkest secrets made public.
vv. 24-25 – Jesus is not speaking of material possessions or physical health but of knowledge and understanding.
vv. 26-28 – Seed is small, yet transforms into something large(r) and beautiful. This process occurs invisibly and over time. It is a work of God rather than of man.
v. 29 – Harvest is a frequent image in Scripture for judgment.
v. 31 – The mustard seed is a very small seed, while not literally the smallest seed, it would be the smallest seed the people would be familiar with.
v. 32 – The tree and birds is an image used in Scripture to depict a grand kingdom in which smaller kingdoms are part.
v. 37 – The geography surrounding the Sea of Galilee is such that storms can spring up suddenly and violently.
v. 39 – Jesus demonstrated power over nature and over a body of water. To the Jewish mind large bodies of water were often associated with chaos – the uncontrollable.
vv. 40-41 – The fear of the disciples is turned from nature to Jesus, they are amazed by His power and recognize that He is greater than they had imagined.
 While birds earlier represented Satan, they do not represent Satan or anything evil here.

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