The member of the Commission designated by the President as chairman shall be the chief executive officer of the Commission. It shall be his duty to preside at all meetings and sessions of the Commission, to represent the Commission in all matters relating to legislation and legislative reports, except that any commissioner may present his own or minority views or supplemental reports, to represent the Commission in all matters requiring conferences or communications with other governmental officers, departments or agencies, and generally to coordinate and organize the work of the Commission in such manner as to promote prompt and efficient disposition of all matters within the jurisdiction of the Commission. In the case of a vacancy in the office of the chairman of the Commission, or the absence or inability of the chairman to serve, the Commission may temporarily designate one of its members to act as chairman until the cause or circumstance requiring such designation shall have been eliminated or corrected.
From time to time as the Commission may find necessary, the Commission shall organize its staff into (1) integrated bureaus, to function on the basis of the Commission's principal workload operations, and (2) such other divisional organizations as the Commission may deem necessary. Each such integrated bureau shall include such legal, engineering, accounting, administrative, clerical, and other personnel as the Commission may determine to be necessary to perform its functions.
(1) When necessary to the proper functioning of the Commission and the prompt and orderly conduct of its business, the Commission may, by published rule or by order, delegate any of its functions (except functions granted to the Commission by this paragraph and by paragraphs (4), (5), and (6) of this subsection and except any action referred to in sections 204(a)(2), 208(b), and 405(b) of this title) to a panel of commissioners, an individual commissioner, an employee board, or an individual employee, including functions with respect to hearing, determining, ordering, certifying, reporting, or otherwise acting as to any work, business, or matter; except that in delegating review functions to employees in cases of adjudication (as defined in section 551 of title 5), the delegation in any such case may be made only to an employee board consisting of two or more employees referred to in paragraph (8) of this subsection. Any such rule or order may be adopted, amended, or rescinded only by a vote of a majority of the members of the Commission then holding office. Except for cases involving the authorization of service in the instructional television fixed service, or as otherwise provided in this chapter, nothing in this paragraph shall authorize the Commission to provide for the conduct, by any person or persons other than persons referred to in paragraph (2) or (3) of section 556(b) of title 5, of any hearing to which such section applies.
(2) As used in this subsection the term "order, decision, report, or action" does not include an initial, tentative, or recommended decision to which exceptions may be filed as provided in section 409(b) of this title.
(3) Any order, decision, report, or action made or taken pursuant to any such delegation, unless reviewed as provided in paragraph (4) of this subsection, shall have the same force and effect, and shall be made, evidenced, and enforced in the same manner, as orders, decisions, reports, or other actions of the Commission.
(4) Any person aggrieved by any such order, decision, report or action may file an application for review by the Commission within such time and in such manner as the Commission shall prescribe, and every such application shall be passed upon by the Commission. The Commission, on its own initiative, may review in whole or in part, at such time and in such manner as it shall determine, any order, decision, report, or action made or taken pursuant to any delegation under paragraph (1) of this subsection.
(5) In passing upon applications for review, the Commission may grant, in whole or in part, or deny such applications without specifying any reasons therefor. No such application for review shall rely on questions of fact or law upon which the panel of commissioners, individual commissioner, employee board, or individual employee has been afforded no opportunity to pass.
(6) If the Commission grants the application for review, it may affirm, modify, or set aside the order, decision, report, or action, or it may order a rehearing upon such order, decision, report, or action in accordance with section 405 of this title.
(7) The filing of an application for review under this subsection shall be a condition precedent to judicial review of any order, decision, report, or action made or taken pursuant to a delegation under paragraph (1) of this subsection. The time within which a petition for review must be filed in a proceeding to which section 402(a) of this title applies, or within which an appeal must be taken under section 402(b) of this title, shall be computed from the date upon which public notice is given of orders disposing of all applications for review filed in any case.
(8) The employees to whom the Commission may delegate review functions in any case of adjudication (as defined in section 551 of title 5) shall be qualified, by reason of their training, experience, and competence, to perform such review functions, and shall perform no duties inconsistent with such review functions. Such employees shall be in a grade classification or salary level commensurate with their important duties, and in no event less than the grade classification or salary level of the employee or employees whose actions are to be reviewed. In the performance of such review functions such employees shall be assigned to cases in rotation so far as practicable and shall not be responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency.
(9) The secretary and seal of the Commission shall be the secretary and seal of each panel of the Commission, each individual commissioner, and each employee board or individual employee exercising functions delegated pursuant to paragraph (1) of this subsection.
Meetings of the Commission shall be held at regular intervals, not less frequently than once each calendar month, at which times the functioning of the Commission and the handling of its work load shall be reviewed and such orders shall be entered and other action taken as may be necessary or appropriate to expedite the prompt and orderly conduct of the business of the Commission with the objective of rendering a final decision (1) within three months from the date of filing in all original application, renewal, and transfer cases in which it will not be necessary to hold a hearing, and (2) within six months from the final date of the hearing in all hearing cases.
The Commission shall have a Managing Director who shall be appointed by the Chairman subject to the approval of the Commission. The Managing Director, under the supervision and direction of the Chairman, shall perform such administrative and executive functions as the Chairman shall delegate. The Managing Director shall be paid at a rate equal to the rate then payable for level V of the Executive Schedule.
Level V of the Executive Schedule, referred to in subsec. (e), is set out in section 5316 of Title 5, Government Organization and Employees.
In subsec. (c)(1), (8), "adjudication (as defined in section 551 of title 5)" substituted for "adjudication (as defined in the Administrative Procedure Act)", and in subsec. (c)(1) "section 556(b) of title 5" substituted for references to "section 7(a) of the Administrative Procedure Act", on authority of Pub. L. 89–554, §7(b), Sept. 6, 1966, 80 Stat. 631 , the first section of which enacted Title 5, Government Organization and Employees.
1996-Subsec. (c)(1). Pub. L. 104–104 inserted last sentence and struck out former last sentence which read as follows: "Nothing in this paragraph shall authorize the Commission to provide for the conduct, by any person or persons other than persons referred to in clauses (2) and (3) of section 556(b) of title 5, of any hearing to which such section 556(b) applies."
1994-Subsecs. (e), (f). Pub. L. 103–414 redesignated subsec. (f) as (e).
1988-Subsec. (c)(1). Pub. L. 100–594, §8(a), inserted "and except any action referred to in sections 204(a)(2), 208(b), and 405(b) of this title" after "and (6) of this subsection" in first sentence.
Subsec. (g). Pub. L. 100–594, §4, struck out subsec. (g) which required an annual report to Congress and specified its contents.
1986-Subsec. (g). Pub. L. 99–272 substituted "March 31" for "January 31".
1982-Subsec. (b). Pub. L. 97–259, §105(a), substituted "From" for "Within six months after July 16, 1952, and from" at beginning of subsection, and struck out "thereafter" after "time to time".
Subsecs. (c) to (e). Pub. L. 97–259, §105(b), (c), redesignated subsecs. (d) and (e) as (c) and (d), respectively, and in par. (1) of subsec. (c), as so redesignated, substituted "two" for "three" after "employee board consisting of".
1981-Subsecs. (f), (g). Pub. L. 97–35 added subsecs. (f) and (g).
1980-Subsec. (e). Pub. L. 96–470 struck out "; and the Commission shall promptly report to the Congress each such case which has been pending before it more than such three- or six-month period, respectively, stating the reasons therefor" after "hearing cases".
1961-Subsec. (c). Pub. L. 87–192, §1, repealed subsec. (c) which provided for establishment of review staff, its composition, responsibility and duties.
Subsec. (d)(1). Pub. L. 87–192, §2, substituted provisions which authorized the delegation of functions by published rule or by order to a panel of commissioners, and individual commissioner, an employee board, or an individual employee, and of review functions to an employee board of three or more employees, enumerated the functions to be delegated, with stated exceptions, and prescribed majority vote for order delegating review functions for former provision which authorized the assignment of reference of work, business or functions by order to an individual commissioner or commissioners or to a board of one or more employees and eliminated provision concerning force, effect and enforcement of orders, now incorporated in par. (3) of this subsection.
Subsec. (d)(2). Pub. L. 87–192, §2, added par. (2). The subject matter was formerly covered by the introductory words of former par. (1) of this subsection which read "Except as provided in section 409 of this title." Sentences 1 and 2 of former par. (2) redesignated pars. (4) and (6), respectively.
Subsec. (d)(3). Pub. L. 87–192, §2, redesignated second sentence of former par. (1) as par. (3) and substituted therein "report, or action made or taken pursuant to any such delegation, unless reviewed as provided in paragraph (4), shall have" and "other actions" for "report made, or other action taken, pursuant to any such order of assignment or reference shall, unless reviewed pursuant to paragraph (2), have" and "action", respectively. Former par. (3) redesignated (9).
Subsec. (d)(4). Pub. L. 87–192, §2, redesignated first sentence of former par. (2) as par. (4), included "action" in enumeration, and inserted provision for review on initiative of the Commission.
Subsec. (d)(5). Pub. L. 87–192, §2, added par. (5).
Subsec. (d)(6). Pub. L. 87–192, §2, redesignated second sentence of former par. (2) as par. (6), inserting "for review" after "applications" and substituting "the Commission", "the order", "it may order" and "in accordance with" for "it", "such order", "may order" and "under", respectively.
Subsec. (d)(7), (8). Pub. L. 87–192, §2, added pars. (7) and (8).
Subsec. (d)(9). Pub. L. 87–192, §2, redesignated former par. (3) as (9) and made it applicable to each panel of the Commission, each employee board instead of each board, and each individual employee.
1952-Act July 16, 1952, amended section generally to provide for the organization of the staff, integrated bureaus, and for a review staff.


What is the intracorporate conspiracy doctrine and what role, if any, does it play in the § 1983 conspiracy setting?
In the words of the Eleventh Circuit in a § 1985(3) case, “under the doctrine, a corporation cannot conspire with its employees, and its employees, when acting within the scope of their employment, cannot conspire among themselves.”McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000)(en banc).
Subsequently, in another Eleventh Circuit case, Grider v. City of Auburn, 618 F.3d 1240 (11th Cir. 2010), the plaintiff sued various city officials, including law enforcement officers, under § 1983, alleging that they maliciously conspired to prosecute him falsely for bribery. Even though the evidence showed that one of the officers was involved in the other’s bribery charge against the plaintiff, the court ruled that both officers could not be sued for an alleged § 1983 conspiracy because of the intracorporate conspiracy doctrine.
It observed that both were law enforcement officers with the same city police department, no outsiders were involved and the subject of the alleged conspiracy—prosecuting the plaintiff by bringing a false bribery charge–involved job-related functions within the scope of defendants’ employment. The Eleventh Circuit rejected the contention that violating constitutional rights was never a job-related function or within the scope of a law enforcement officer’s employment.
Finally, the court determined that the case before it did not fit within any of the three exceptions to the intracorporate conspiracy doctrine as described in yet another Eleventh Circuit case (this one involving § 1985(3)): (1) for “convictions involving criminal charges of conspiracy,” (2) where an employee has an “independent personal stake” in his unconstitutional acts or (3) where the employees “engage in a series of discriminatory acts as opposed to a single action” over a significant period. Dickerson v. Alachua County Comm’n, 200 F.3d 761, 768-70 & n. 9 (11th Cir. 2000)(collecting and analyzing cases from other circuits), discussed in Grider, 618 F.3d at 1262.
One wonders why this doctrine has any place at all in § 1983 litigation, especially when such litigation involves § 1983 conspiracy claims against police officers accused of violating a plaintiff’s constitutional rights. After all, § 1983 conspiracy doctrine, which focuses on wrongful state of mind, is a species of § 1983 joint and several liability doctrine governed by the federal law of § 1983.


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Oliveira J. M., Pina S., Roman J. S., and Reis R. L., "Osteochondral Tissue Engineering - Challenges, Current Strategies, and Technological Advances", Osteochondral Tissue Engineering - Challenges, Current Strategies, and Technological Advances, vol. 1059, doi:10.1007/978-3-319-76735-2, 2018.
Oliveira J. M., Pina S., Roman J. S., and Reis R. L., "Osteochondral Tissue Engineering - Nanotechnology, Scaffolding-Related Developments and Translation", Osteochondral Tissue Engineering - Nanotechnology, Scaffolding-Related Developments and Translation, vol. 1058, doi:10.1007/978-3-319-76711-6, 2018.
Marques A. P., Pirraco R. P., Cerqueira M. T., and Reis R. L., "Skin Tissue Models", Skin Tissue Models, doi:10.1016/C2016-0-00093-1, 2018.
Oliveira J. M., and Reis R. L., "Regenerative Strategies for the Treatment of Knee Joint Disabilities", Regenerative Strategies for the Treatment of Knee Joint Disabilities: Series: Studies in Mechanobiology, Tissue Engineering and Biomaterials, vol. 21, doi:10.1007/978-3-319-44785-8, 2017.
Neves N. M., and Reis R. L., "Biomaterials From Nature For Advanced Devices And Therapies", Biomaterials From Nature For Advanced Devices And Therapies, doi:10.1002/9781119126218, 2016.
Gomes M. E., "TENDON REGENERATION: Understanding Tissue Physiology and Development to Engineer Functional Substitutes", TENDON REGENERATION: Understanding Tissue Physiology and Development to Engineer Functional Substitutes, doi:10.1016/B978-0-12-801590-2.01001-2, 2015.
Neves N. M., "Electrospinning for Advanced Biomedical Applications and Therapies", Electrospinning for Advanced Biomedical Applications and Therapies, 2012.
Bacelo E., Alves da Silva M., Cunha C., Faria S., Carvalho A., Reis R. L., Martins A., and Neves N. M., "Biofunctional Nanofibrous Substrate for Local TNF-Capturing as a Strategy to Control Inflammation in Arthritic Joints", Nanomaterials, vol. 9, issue 4, pp. 667, doi:10.3390/nano9040567, 2019.
Youn Y. H., Lee S. J., Choi G. R., Lee H. R., Lee D. H., Heo D. N., Kim B. S., Bang J. B., Hwang Y. S., Correlo V. M., Reis R. L., Im S. G., and Kwon I. K., "Simple and facile preparation of recombinant human bone morphogenetic protein-2 immobilized titanium implant via initiated chemical vapor deposition technique to promote osteogenesis for bone tissue engineering application", Materials Science and Engineering: C, vol. 100, pp. 949-958, doi:10.1016/j.msec.2019.03.048, 2019.
Costa-Almeida R., Calejo I., Altieri R., Domingues R. M. A., Giordano E., Reis R. L., and Gomes M. E., "Exploring platelet lysate hydrogel-coated suture threads as biofunctional composite living fibers for cell delivery in tissue repair", Biomedical Materials, doi:10.1088/1748-605X/ab0de6, 2019.
Brito A., Abul-Haija Y. M., Soares da Costa D., Novoa-Carballal R., Reis R. L., Ulijn R. V., Pires R. A., and Pashkuleva I., "Minimalistic supramolecular proteoglycan mimics by co-assembly of aromatic peptide and carbohydrate amphiphiles", Chemical Science, vol. 10, pp. 2385 - 2390, doi:10.1039/c8sc04361b, 2019.
Barbosa A. I., Borges J., Meira D. I., Costa D., Rodrigues M. S., Rebelo R., Correlo V. M., Vaz F., and Reis R. L., "Development of label-free plasmonic Au-TiO2 thin film immunosensor devices", Materials Science & Engineering C, vol. 100, pp. 429-432, doi:10.1016/j.msec.2019.03.029, 2019.
Costa-Almeida R., Reis R. L., and Gomes M. E., "Metabolic Disease Epidemics: Emerging Challenges in Regenerative Medicine", Trends In Endocrinology And Metabolism, doi:10.1016/j.tem.2019.01.001, 2019.
Geão C., Costa-Pinto A. R., Cunha-Reis C., Ribeiro V. P., Vieira S., Oliveira J. M., Reis R. L., and Oliveira A. L., "Thermal annealed silk fibroin membranes for periodontal guided tissue regeneration", Journal of Materials Science: Materials in Medicine, vol. 30, issue 2, pp. 27, doi:10.1007/s10856-019-6225-y, 2019.
Costa R. R., Soares da Costa D., Reis R. L., and Pashkuleva I., "Bioinspired baroplastic glycosaminoglycan sealants for soft tissues", Acta Biomaterialia, pp. 108 - 117, doi:10.1016/j.actbio.2019.01.040, 2019.
Maciel J. S., Azevedo S., Correia C. R., Costa A. M. S., Costa R. R., Magalhães F. A., Monteiro A. A. S., Costa J. F. G., De Paula R. C. M., Feitosa J. P. A., and Mano J. F., "Oxidized Cashew Gum Scaffolds for Tissue Engineering", Macromolecular Materials And Engineering, vol. 304, issue 3, pp. 1800574, doi:10.1002/mame.201800574, 2019.
Vale A. C., Pereira P., Barbosa A. M., Torrado E., and Alves N. M., "Optimization of Silver-containing Bioglass Nanoparticles Envisaging Biomedical Applications", Materials Science & Engineering C-materials For Biological Applications, vol. 94, pp. 161-168, doi:10.1016/j.msec.2018.09.027, 2019.
Oliveira N. M., Vilabril S., Oliveira M. B., Reis R. L., and Mano J. F., "Recent advances on open fluidic systems for biomedical applications: A review", Materials Science and Engineering C, vol. 97, pp. 851-863, doi:10.1038/s41598-018-33192-6, 2018.
Klemm A., Gómez-Florit M., Carvalho P. A., Wachendörfer M., Gomes M. E., Haugen H. J., and Tiainen H., "Grain boundary corrosion in TiO2 bone scaffolds doped with group II cations", Journal Of The European Ceramic Society, vol. 39, issue 4, pp. 1577-1585, doi:10.1016/j.jeurceramsoc.2018.12.055, 2018.
Carvalho A. M., Marques A. P., Silva T. H., and Reis R. L., "Evaluation of the Potential of Collagen from Codfish Skin as a Biomaterial for Biomedical Applications", Marine Drugs, vol. 16, issue 12, pp. 495-509, doi:10.3390/md16120495, 2018.
Franco A. R., Kimmerling E. P., Silva C., Rodrigues F., Leonor I. B., Reis R. L., and Kaplan D. L., "Silk‐Based Antimicrobial Polymers as a New Platform to Design Drug‐Free Materials to Impede Microbial Infections", Macromolecular Bioscience, doi:10.1002/mabi.201800262, 2018.
Jain A., Singh S. K., Arya S. K., Kundu S. C., and Kapoor S., "Protein Nanoparticles: Promising Platforms for Drug Delivery Applications", ACS Biomaterials Science and Engineering , vol. 4, issue 12, pp. 3939 - 3961, doi:10.1021/acsbiomaterials.8b01098, 2018.
Sun N., Lei R., Xu J., Kundu S. C., Cai Y., Yao J., and Ni Q., "Fabricated porous silk fibroin particles for pH-responsive drug delivery and targeting of tumor cells", Journal of Material Sciences, vol. 54, issue 4, pp. 3319-3330, doi:10.1007/s10853-018-3022-9, 2018.
Oliveira C., Neves N. M., Reis R. L., Silva T. H., and Martins A., "Gemcitabine delivered by fucoidan/chitosan nanoparticles presents increased toxicity over human breast cancer cells", Nanomedicine, doi:10.2217/nnm-2018-0004, 2018.
Mendes B. B., Gómez-Florit M., Pires R. A., Domingues R. M. A., Reis R. L., and Gomes M. E., "Human-based fibrillar nanocomposite hydrogels as bioinstructive matrices to tune stem cell behavior", Nanoscale, vol. 10, issue 36, pp. 17388-17401, doi:10.1039/C8NR04273J, 2018.
Radhouani H., Gonçalves C., Maia F. R., Oliveira J. M., and Reis R. L., "Kefiran biopolymer: Evaluation of its physicochemical and biological properties", Journal Of Bioactive And Compatible Polymers, vol. 33, issue 5, pp. 461-478, doi:10.1177/0883911518793914, 2018.
Calejo I., Costa-Almeida R., Gonçalves A. I., Berdecka D., Reis R. L., and Gomes M. E., "Bi-directional modulation of cellular interactions in an in vitro co-culture model of tendon-to-bone interface", Cell Proliferation, doi:10.1111/cpr.12493, 2018.
Correia C. R., Reis R. L., and Mano J. F., "Design Principles and Multifunctionality in Cell Encapsulation Systems for Tissue Regeneration", Advanced Healthcare Materials, doi:0.1002/adhm.201701444, 2018.
Diogo G. S., Senra E. L., Pirraco R. P., Canadas R. F., Fernandes E. M., Serra J., Pérez-Martín R. I., Sotelo C. G., Marques A. P., González P., Moreira-Silva J., Silva T. H., and Reis R. L., "Marine collagen/apatite composite scaffolds envisaging hard tissue applications", Marine Drugs, vol. 16, issue 8, pp. 269, doi:10.3390/md16080269, 2018.
Radhouani H., Gonçalves C., Maia F. R., Oliveira J. M., and Reis R. L., "Biological performance of a promising Kefiran-biopolymer with potential in regenerative medicine applications: a comparative study with hyaluronic acid", Journal of Materials Science: Materials in Medicine, vol. 29, pp. 124-134, doi:10.1007/s10856-018-6132-7, 2018.
Silva C. F., Babo P. S., Gulino M., Costa L., Oliveira J. M., Silva-Correia J., Domingues R. M. A., Reis R. L., and Gomes M. E., "Injectable and tunable hyaluronic acid hydrogels releasing chemotactic and angiogenic growth factors for endodontic regeneration", Acta Biomaterialia, doi:10.1016/j.actbio.2018.07.035, 2018.
Gholipourmalekabadi M., Seifalian A., Urbanska A., Omrani M. D., Hardy J., Madjd Z., Hashemi S. M., Ghanbarian H., Brouki M. P., Mozafari M., Reis R. L., Kundu S. C., and Samadikuchaksaraei A., "3D protein-based bilayer artificial skin for guided scarless healing of full-thickness burn wounds in vivo", Biomacromolecules, vol. 19, issue 7, pp. 2409-2422, doi:10.1021/acs.biomac.7b01807, 2018.
Novoa-Carballal R., Carretero A. C., Pacheco R., Reis R. L., and Pashkuleva I., "Star-like glycosaminoglycans with superior bioactivity assemble with proteins into microfibers", Chemistry: A European Journal , vol. 24, pp. 14341 - 14345, doi:10.1002/chem.201802243, 2018.
Costa R. R., González-Pérez M., Herrero-Gutiérrez M., Pires R. A., Alonso M., Rodríguez-Cabello J. C., Reis R. L., and Pashkuleva I., "Tuning the stiffness of surfaces by assembling genetically engineered polypeptides with tailored amino acid sequence", Biomacromolecules, vol. 19, issue 8, pp. 3401–3411, doi:10.1021/acs.biomac.8b00723, 2018.
Pereira D. R., Canadas R. F., Silva-Correia J., da Silva Morais A., Oliveira M. B., Dias I. R., Mano J. F., Marques A. P., Reis R. L., and Oliveira J. M., "Injectable gellan-gum/hydroxyapatite-based bilayered hydrogel composites for osteochondral tissue regeneration", Applied Materials Today, vol. 12, pp. 309-321, doi:10.1016/j.apmt.2018.06.005, 2018.
Kumar B. N. P., Puvvada N., Rajput S., Sarkar S., Mahto K., Yallapu M., Pathak A., Emdad L., Das S. K., Reis R. L., Kundu S. C., Fisher B., and Mandal M., "Targeting of EGFR, VEGFR2 and Akt by engineered dual drug encapsulated mesoporous silica-gold nanoclusters sensitizes tamoxifen-resistant breast cancer", ACS Molecular Pharmaceutics, vol. 15, issue 7, pp. 2698–2713, doi:10.1021/acs.molpharmaceut.8b00218, 2018.
Lago M. E. L., da Silva L. P., Henriques C., Carvalho A. F., Reis R. L., and Marques A. P., "Generation of Gellan Gum-Based Adipose-Like Microtissues.", Bioengineering, vol. 5, issue 3, pp. 52, doi:10.3390/bioengineering5030052, 2018.
Almeira L. D. F., Babo P. S., Silva C. R., Rodrigues M. T., Hebling J., Reis R. L., and Gomes M. E., "Hyaluronic acid hydrogels incorporating platelet lysate enhance human pulp cell proliferation and differentiation", Journal of Materials Science: Materials in Medicine, vol. 29, issue 6, pp. 88, doi:10.1007/s10856-018-6088-7, 2018.
Carvalho C. R., Costa J. B., Morais A., López-Cebral R., Silva-Correia J., Reis R. L., and Oliveira J. M., "Tunable Enzymatically Crosslinked Silk Fibroin Tubular Conduits for Guided Tissue Regeneration", Advanced Healthcare Materials, vol. 7, issue 17, pp. 1800186, doi:10.1002/adhm.201800186, 2018.
Silva C., Caridade S. G., Cunha E., Sousa M. P., Rocha H., Mano J. F., Paiva M. C., and Alves N. M., "Nanostructured biopolymer/few-layer graphene freestanding films with enhanced mechanical and electrical properties", Macromolecular Materials and Engineering, vol. 303, pp. 1700316, doi:10.1002/mame.201700316, 2018.
Dudik O., Leonor I., Xavier J. R., Rapp H. T., Pires R. A., Silva T. H., and Reis R. L., "Sponge-derived silica for tissue regeneration: Bioceramics of deep-sea sponge", Materials Today, vol. 21, issue 5, pp. 577-578, doi:10.1016/j.mattod.2018.03.025, 2018.
Sousa M. P., Neto A. I., Correia T. R., Miguel S. P., Matsusaki M., Correia I. J., and Mano J. F., "Bioinspired multilayer membranes as potential adhesive patches for skin wound healing", Biomaterials Science, vol. 6, pp. 1962–1975, doi:10.1039/C8BM00319J, 2018.
Carvalho M. R., Maia F. R., Vieira S., Reis R. L., and Oliveira J. M., "Tuning Enzymatically-crosslinked Silk fibroin Hydrogel Properties for the Development of a Colorectal cancer Extravasation 3D Model on a Chip", Global Challenges, vol. 2, issue 5-6, pp. 1700100, doi:10.1002/gch2.201700100, 2018.
Miranda M. S., Rodrigues M. T., Domingues R. M. A., Costa R. R., Paz E., Rodríguez-Abreu C., Freitas P., Almeida B. G., Carvalho M. A., Gonçalves C., Ferreira C. M., Torrado E., Reis R. L., Pedrosa J., and Gomes M. E., "Development of Inhalable Superparamagnetic Iron Oxide Nanoparticles (SPIONs) in Microparticulate System for Antituberculosis Drug Delivery", Advanced Healthcare Materials, vol. 7, issue 15, pp. 1800124, doi:10.1002/adhm.201800124, 2018.
Noro J., Reis R. L., Cavaco-Paulo A., and Silva C., "Ultrasound-assisted biosynthesis of novel methotrexate-conjugates", Ultrasonics Sonochemistry, vol. 48, pp. 51-56, doi:10.1016/j.ultsonch.2018.05.017, 2018.
Carvalho A. M., Teixeira R., Novoa-Carballal R., Pires R. A., Reis R. L., and Pashkuleva I., "Redox-responsive micellar nanoparticles from glycosaminoglycans for CD44 targeted drug delivery", Biomacromolecules, vol. 19, issue 7, pp. 2991 - 2999, doi:10.1021/acs.biomac.8b00561, 2018.
Silva C., Caridade S. G., Cunha E., Sousa M. P., Rocha H., Mano J. F., Paiva M. C., and Alves N. M., "Nanostructured biopolymer/few-layer graphene freestanding films with enhanced mechanical and electrical properties", Macromolecular Materials And Engineering, vol. 303, doi:10.1002/mame.201700316, 2018.
Jeon H. Y., Shin E. Y., Choi J. H., Song J. E., Reis R. L., and Khang G., "Evaluation of Saponin Loaded Gellan Gum Hydrogel Scaffold for Cartilage Regeneration", Macromolecular Research, vol. 26, issue 8, pp. 724–729, doi:10.1007/s13233-018-6094-0, 2018.
Carvalho C. R., Wrobel S., Meyer C., Branderberger C., Cengiz I. F., López-Cebral R., Silva-Correia J., Ronchi J., Reis R. L., Grothe C., Oliveira J. M., and Haastert-Talini K., "Gellan Gum-based luminal fillers for peripheral nerve regeneration: an in vivo study in the rat sciatic nerve repair model", BIOMATERIALS SCIENCE, vol. 6, issue 6, pp. 1059-1075, doi:10.1039/c7bm01101f, 2018.
Choi J. H., Jeon H., Song J. E., Oliveira J. M., Reis R. L., and Gilson K., "Biofunctionalized Lysophosphatidic Acid/Silk Fibroin Film for Cornea Endothelial Cell Regeneration", Nanomaterials (Basel, Switzerland), vol. 8, issue 5, pp. 290, doi:10.3390/nano8050290, 2018.
Fonseca D. R., Sobreiro-Almeida R., Sol P. C., and Neves N. M., "Development of non-orthogonal 3D-printed scaffolds to enhance their osteogenic performance", Biomaterials Science, vol. 6, issue 6, pp. 1569-1579, doi:10.1039/c8bm00073e, 2018.
Srisuk P., Berti F. V., da Silva L. P., Marques A. P., Reis R. L., and Correlo V. M., "Electroactive gellan gum/polyaniline spongy-like hydrogels", ACS Biomaterials Science and Engineering, vol. 4, issue 5, pp. 1779–1787, doi:10.1021/acsbiomaterials.7b00917, 2018.
Kundu B., Eltohamy M., Yadavalli V. K., Reis R. L., and Kim H. W., "Template mediated protein self-assembly as a valuable tool in regenerative therapy", Biomedical Materials, 2018, vol. 13, issue 4, pp. 044101, doi:10.1088/1748-605X/aab2fe, 2018.
Ribeiro V. P., da Silva Morais A., Maia F. R., Canadas R. F., Costa J. B., Oliveira A. L., Oliveira J. M., and Reis R. L., "Combinatory approach for developing silk fibroin scaffolds for cartilage regeneration", Acta Biomaterialia, vol. 72, pp. 167-181, doi:10.1016/j.actbio.2018.03.047, 2018.
Ribeiro V. P., Silva-Correia J., Gonçalves C., Pina S., Radhouani H., Hyttinen J., Roy A., Oliveira A. L., Reis R. L., and Oliveira J. M., "Rapidly responsive silk fibroin hydrogels as an artificial matrix for the programmed tumor cells death", PLoS ONE, vol. 13, issue 4, pp. e0194441, doi:10.1371/journal.pone.0194441, 2018.
Lima, Ana C., Cunha C., Carvalho A., Ferreira H., and Neves N. M., "Interleukin-6 Neutralization by Antibodies Immobilized at the Surface of Polymeric Nanoparticles as a Therapeutic Strategy for Arthritic Diseases", Acs Applied Materials & Interfaces, vol. 10, issue 16, pp. 13839-13850, doi:10.1021/acsami.8b01432, 2018.
Neto A. I., Levkin P. A., and Mano J. F., "Patterned superhydrophobic surfaces to process and characterize biomaterials and 3D cell culture", Materials Horizons, vol. 5 , pp. 379-393, doi:10.1039/C7MH00877E, 2018.
Costa J. B., Silva-Correia J., Ribeiro V. P., da Silva Morais A., Oliveira J. M., and Reis R. L., "Engineering patient-specific bioprinted constructs for treatment of degenerated intervertebral disc", Materials Today Communications, doi:10.1016/j.mtcomm.2018.01.011, 2018.
Pal R. K., Kundu S. C., and Yadavalli V. K., "Fabrication of flexible, fully organic, degradable energy storage devices using silk proteins", ACS Applied Materials and Interfaces, vol. 10, issue 11, pp. 9620–9628, doi:10.1021/acsami.7b19309, 2018.
Gholipourmalekabadi M., Samadikuchaksaraei A., Seifalian A. M., Urbanska A. M., Ghanbarian H., Hardy J. G., Omrani M. D., Mozafari M., Reis R. L., and Kundu S. C., "Silk fibroin/amniotic membrane 3D bi-layered artificial skin", Biomedical Materials, vol. 13, pp. 035003, doi:10.1088/1748-605X/aa999b, 2018.
Maia F. R., David M., Naot D., da silva L., Bastos A. R., Costa J. B., Oliveira J. M., Correlo V. M., Reis R. L., and Cornish J., "Differentiation of osteoclast precursors on Gellan Gum-based spongy-like hydrogels for bone tissue engineering", Biomedical Materials, vol. 13, issue 3, doi:10.1088/1748-605X/aaaf29, 2018.
Monzón M., Liu C., Ajami S., Oliveira J. M., Donate R., Ribeiro V. P., and Reis R. L., "Functionally graded additive manufacturing to achieve functionality specifications of osteochondral scaffolds", Bio-Design and Manufacturing, vol. 1, issue 1, pp. 69–75, doi:10.1007/s42242-018-0003-4, 2018.
Manda-Guiba G. M., da Silva L. P., Cerqueira M. T., Pereira D. R., Oliveira M. B., Mano J. F., Marques A. P., Oliveira J. M., Correlo V. M., and Reis R. L., "Gellan Gum Hydroxyapatite Composite Hydrogels for Bone Tissue Engineering", J Biomed Mater Res A, vol. 106, issue 2, pp. 479–490, doi:10.1002/jbm.a.36248, 2018.
Kuang D., Wu F., Yin Z., Zhu T., Xing T., Kundu S. C., and Lu S., "Silk Fibroin/Polyvinyl Pyrrolidone Interpenetrating Polymer Network Hydrogels", Polymers , vol. 10, pp. 153-164, doi:10.3390/polym10020153, 2018.
Perugini V., Guildford A., Silva-Correia J., Oliveira J. M., Meikle S. T., Reis R. L., and Santin M., "Anti-angiogenic potential of VEGF blocker dendron loaded on to gellan gum hydrogels for tissue engineering applications", Journal of Tissue Engineering and Regenerative Medicine, vol. 12, issue 2, pp. e669-e678, doi:10.1002/term.2340, 2018.
López-Cebral R., Peng G., Reys L. L., Silva S. S., Oliveira J. M., Chen J., Silva T. H., and Reis R. L., "Dual delivery of hydrophilic and hydrophobic drugs from chitosan/ diatomaceous earth composite membranes", Journal of Materials Science: Materials in Medicine, vol. 29, issue 3, pp. 21-33, doi:10.1007/s10856-018-6025-9, 2018.
da Silva L. P., Jha A., Correlo V. M., Marques A. P., Reis R. L., and Healy K. E., "Gellan Gum Hydrogels with Enzyme-Sensitive Biodegradation and Endothelial Cell Biorecognition Sites", Advanced Healthcare Materials, vol. 7, issue 5, pp. 1700686, doi:10.1002/adhm.201700686, 2018.
Wang Y., Peng G., Chen B., Yong P., Yao N., Yang L., Pirraco R. P., Reis R. L., and Chen J., "Preparation and characteristics of the sulfonated chitosan derivatives electrodeposited onto 316l stainless steel surface", Journal Of Biomaterials Science, Polymer Edition, vol. 29, issue 3, pp. 236-256, doi:10.1080/09205063.2017.1409047, 2018.
Gomes T. D., Caridade S. G., Sousa M. P., Azevedo S., Kandur M. Y., Öner E. T., Alves N. M., and Mano J. F., "Adhesive free-standing multilayer films containing sulfated levan for biomedical applications", Acta Biomaterialia, vol. 69 , pp. 183–195, doi:10.1016/j.actbio.2018.01.027, 2018.
Pesqueira T., Costa-Almeida R., Mithieux S. M., Babo P. S., Franco A. R., Mendes B. B., Domingues R. M. A., Freitas P., Reis R. L., Gomes M. E., and Weiss A. S., "Engineering magnetically responsive tropoelastin spongy-like hydrogels for soft tissue regeneration", Journal Of Materials Chemistry B, doi:10.1039/C7TB02035J, 2018.
Oliveira N. M., Martins-Cruz C., Oliveira M. B., Reis R. L., and Mano J. F., "Coculture of Spheroids/2D Cell Layers Using a Miniaturized Patterned Platform as a Versatile Method to Produce Scaffold-Free Tissue Engineering Building Blocks", Advanced Biosystems, vol. 2, issue 1, pp. 1-8, doi:10.1002/adbi.201700069, 2018.
Costa-Almeida R., Franco A. R., Pesqueira T., Oliveira M. B., Babo P. S., Leonor I. B., Mano J. F., Reis R. L., and Gomes M. E., "The effects of platelet lysate patches on the activity of tendon-derived cells", Acta Biomaterialia, doi:10.1016/j.actbio.2018.01.006, 2018.
Silva M., Alves N. M., and Paiva M. C., "Graphene‐polymer nanocomposites for biomedical applications", Polymers for Advanced Tecnhologies, vol. 29, pp. 687-700, doi:10.1002/pat.4164, 2018.
Costa-Almeida R., Berdecka D., Rodrigues M. T., Reis R. L., and Gomes M. E., "Tendon explant cultures to study the communication between adipose stem cells and native tendon niche", Journal of Cellular Biochemistry, doi:10.1002/jcb.26573, 2018.
Costa-Almeida R., Calejo I., Reis R. L., and Gomes M. E., "Crosstalk between adipose stem cells and tendon cells reveals a temporal regulation of tenogenesis by matrix deposition and remodeling", Journal Of Cellular Physiology, doi:10.1002/jcp.26363, 2017.

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GRACE S. BOYD vs. LAWRENCE REDEVELOPMENT AUTHORITY.
PETITION filed in the Superior Court on March 29, 1961.
John P. Ford (John F. Burke with him) for the respondent.
Fredric S. O'Brien for the petitioner.
CUTTER, J. This is a petition under G. L. c. 79 for the assessment of damages resulting from the authority's taking of about seventeen acres of land in Lawrence (the locus) zoned for industrial purposes. The authority being dissatisfied with the verdict brings the case here on exceptions.
1. There was no abuse of discretion in the action of the judge in receiving de bene, at the outset of the trial, evidence about sales of four parcels in the Lawrence-North Andover area. Evidence was offered later that all the four parcels were comparable with the locus, although, at the time when testimony concerning the four sales was given, no such evidence of comparability had been admitted. The order of the presentation of evidence is within the sound discretion of the trial judge. Horowitz v. Bokron, 337 Mass. 739, 742. See Clarke v. Fall River, 219 Mass. 580, 586.
distance "some areas of the land . . . were elevated." An expert witness testified that the street frontage was important "as was the proximity of the land to high-speed, limited-access highways." There is, he said, "very little vacant land available for industrial development in Lawrence."
Three of the parcels, used for comparison with the locus, were in North Andover. One of one-half an acre was four to five miles from the locus. A second of 2.56 acres was five miles from the locus. The third contained 48,400 square feet. These parcels, one expert witness said, were "very, very similar" to the locus. The fourth parcel in Lawrence, of 45,630 square feet, was only a short distance from the locus. The same expert witness was of opinion that the four parcels and the locus were "similar in characteristics in every feature, including industrial zoning . . . except of course that each . . . [of the four parcels] was substantially smaller than the" locus. The three North Andover parcels were three and one-half miles from the center of Lawrence. The locus was one mile nearer the center, "which difference . . . [the witness] did not think significant." All four parcels had direct street frontage. The witness testified "that the long frontage of the . . . [locus] on two streets made it particularly suitable for division . . . [into] lots with street frontage for small industries." The witness admitted that there were various differences among the locus and the four parcels in topography, traffic conditions, proximity to an airport, wooded areas, and similar matters.
use of automobiles and trucks, he could reasonably regard the circumstance that all the parcels had good direct highway access as rendering unimportant their varying distances from the center of Lawrence. See Muzi v. Commonwealth, 335 Mass. 101, 105. That the expert witness considered the locus as in large measure suitable for subdivision for small industries tended to render less significant the smaller size of the four parcels. See Consolini v. Commonwealth, 346 Mass. 501, 503. Other differences between each of the four parcels and the locus, the trial judge could view as going only to the weight of the evidence of the four sales and not as requiring its exclusion. The evidence concerning the four sales of vacant industrial land in the general area of the locus seems to us plainly to have been highly relevant to establishing the value of the locus. The rulings complained of were well within the broad discretion given to the trial judge in such matters. See Iris v. Hingham, 303 Mass. 401, 408-409; Brush Hill Dev. Inc. v. Commonwealth, 338 Mass. 359, 366-367; Valley Paper Co. v. Holyoke Housing Authy. 346 Mass. 561, 569. See also Congregation of the Mission of St. Vincent de Paul v. Commonwealth, 336 Mass. 357, 359.
3. The trial judge refused to permit one Solomon to testify to a sale in which he had participated (see Ramacorti v. Boston Redevelopment Authy. 341 Mass. 377, 380) of a "land-locked" fourteen acre parcel with "no utilities available to it," abutting the locus but having access to highways only over the land of others (by a right of way not well defined in the testimony). In view of the proximity of the parcel to the locus, we assume that the trial judge could properly have exercised his discretion to admit the testimony. We cannot say, however, that his failure to do so was an abuse of discretion. The absence of direct access to the Solomon parcel from any street was an important difference between that parcel and the locus. See Brush Hill Dev. Inc. v. Commonwealth, 338 Mass. 359, 367.

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Justia › US Law › US Case Law › US Supreme Court › Volume 220 › ICC v. Delaware, Lackawanna & Western R. Co.
The conclusions of the Interstate Commerce Commission on questions of fact are not reviewable by the courts. Balt. & Ohio R. Co. v. Pitcairn, 215 U. S. 481.
A carrier cannot make mere ownership of goods tendered for transportation the test of the duty to carry, nor may a carrier discriminate in fixing charges for carriage upon such ownership.
Under the Act to Regulate Commerce, a carrier cannot refuse to transport carload lots at carload rates because the goods do not actually belong to one shipper or are shipped by a forwarding agency for account of others.
The provisions of § 2 of the Act to Regulate Commerce were substantially taken from § 90, the equality clause of the English Railway Clauses Consolidated Act of 1845, and had been construed by the courts prior to the enactment of § 2 as forbidding a higher charge to forwarding agents than to others.
The right of the carrier to fix rates does not give it the right to discriminate as to those who can avail of them.
The conclusion by the Interstate Commerce Commission that the enforcement of a rule by a carrier creates a discrimination is one of fact and not open to review by the courts.
In the absence of statutory authority to exclude forwarding agents from availing of published rates, the courts cannot overrule a conclusion of the Interstate Commerce Commission that such exclusion would create a preference, and this although the business of forwarding agents be competitive with the carrier itself.
"A recent careful and authoritative examination of the several classifications shows that, in the Southern Classification, there are 3,503 less-than-carload and only 773 carload ratings, the carload ratings being 22.1 percent of the less-than-carload; in the Western Classification, there are 5,729 less-than-carload and only 1,690 carload ratings, the carload ratings being 29.8 percent of the less-than-carload."
In the same opinion it is also stated that in both the Western and Southern Classification territory, the small percentage accorded a carload rate was confined to goods embraced within lower grades of classification, taking therefor the lowest rates. In the Official Classification territory, however, a widely different allowance of carload ratings prevailed, since, in that territory, the carload rating was permitted on a very large number of articles. In that territory, as likewise remarked by Chairman Knapp, "there are 5,852 less-than-carload ratings and 4,235 carload ratings, the carload ratings being 72.4 percent of the less-than-carload" against, as we have said, 29.8 percent and 22.1 percent in the other territories. This large difference was besides in effect made much greater not only by the higher grades of traffic to which the carload rate was extended, but also because of the enlarged right to ship in one car articles embraced in various classes of traffic to which the carload rating was extended.
may be, receives the carload and distributes its contents to the parties for whom they are intended. The forwarding agent finds his compensation and profit in the difference between the carload and less-than-carload rates."
"The saving effected by securing application of the carload, rather than the less-than-carload, rates may be divided between the forwarding agent and his customer in any agreed proportion. To the extent that the customer secures the carriage of his property at a lower rate than the less-than-carload rate which would otherwise be applied, he saves money, and the division of the difference between the carload and the less-than-carload rates is a matter of private bargain between him and the agent."
"Few practices have become more firmly established in the transportation world than that of combining small quantities of freight of various owners and shipping at the relatively lower rates applicable to large consignments, and under this practice has developed an immense volume of traffic which otherwise could never have been brought into being. It is not an exaggeration to say that the enforcement of such a rule by the carriers of the United States would bring disaster upon thousands of the smaller industries, and more surely establish the dominance of the greater industrial and commercial institutions."
And the alertness with which those engaged in commerce utilized every means afforded of shipping at lower cost is shown in the following testament made by Mr.
"The individual shippers are not necessarily located at the same point, nor are the individual consignees. For instance, if a reduction in rates could be effected, a furniture dealer at Grand Rapids, Michigan, having a shipment for a point in Maine, and a furniture dealer in Rockford, Illinois, having a shipment for a point in Massachusetts, might forward their separate shipments at less-than-carload rates to Chicago; there, the two shipments would be consolidated and forwarded at carload rates to Boston, and thence shipped again at less-than-carload rates from Boston to their respective destinations."
"Rule 5-B. In order to entitle a shipment to the carload rate, the quantity of freight requisite under the rules to secure such carload rate must be delivered at one forwarding station, in one working day, by one consignor, consigned to one consignee and destination, except that, when freight is loaded in cars by consignor, it will be subject to the car service rules and charges of the forwarding railroad. (See Note.)"
"Note.Rule 5-B will apply only when the consignor or consignee is the actual owner of the property."
"Rule 15-E. Shipments of property combined into packages by forwarding agents claiming to act as consignors will only be accepted when the name of individual consignors and final consignees, as well as the character and contents of each package, are declared to the forwarding railroad agent, and such property will be waybilled as separate shipments, and freight charged accordingly. (See note.)"
"Note. The term 'forwarding agents,' referred to in this rule, shall be construed to mean agents of actual consignors of the property, or any party interested in the combination of I.C.L. shipments of articles from several consignors at point of origin."
substantially unchanged. The Buckeye Buggy Co. case, supra. See also statement in the dissenting opinion of Mr. Commissioner Knapp in the present case. 14 I.C.C. p. 442.
in support of and against the contention that the assailed rules were in conflict with the second section of the Act to Regulate Commerce.
The Commission, at the time the complaints were pending, had also before it the complaint of the California Commercial Association against Wells, Fargo & Company involving an analogous question. On June 22, 1908, the report, opinion, and order of the Commission in both cases were filed. 14 I.C.C. pp. 422, 437.
created preferences and engendered discriminations which the act forbade; (e) that this, among other reasons, was the case because the enforcement of the assailed restrictions would not only create preferences in favor of one set of persons against another, but would create discriminations between places, and would be revolutionary in its operation upon interstate traffic; (f) that, irrespective of the abstract right of a carrier to make the ownership of goods offered for shipment a basis for applying its published rates, owing to the practical impossibility of a carrier's being able to adequately enforce such a rule by determining who was the owner of the goods offered, such a rule as a matter of fact would, in and of itself, be an unlawful preference and discrimination forbidden by the act, and (g) that the same principle would control as to the attempt to establish a rule applicable alone to forwarding agents, because of the practical impossibility of distinguishing one class of agents from another. The reasons which led two members of the Commission to dissent were expounded in a careful opinion, stating views which were in substance the direct antithesis of those expressed by the Commission. For example, the dissenting opinion maintained first that to deprive a carrier of the power to exclude a forwarding agent from the benefit of the carload rate would bring about discrimination against places and preferences in favor of persons prohibited by the act; second, that, as the right to the carload rate was the offspring of the voluntary act of the carrier, the right to restrict the privilege thus accorded to particular classes or conditions necessarily obtained; and third that, in any event, a forwarding agent who was but a dealer in railroad transportation, and therefore in a measure a competitor in business of a railroad carrier, was not within the prohibitions of the second section of the Act to Regulate Commerce.
and before the date fixed for compliance commenced the present suit by filing their joint bill to enjoin the enforcement of the order and have it declared void. It suffices to say in substance that, as a basis for the right to relief, the bill challenged the propositions upon which the Commission had based its order, and affirmatively propounded the grounds which led two members of the Commission to dissent from the conclusions of that body. It also suffices to say that the answer of the Commission traversed the affirmative grounds for relief asserted in the bill and averred the correctness of the order by it made upon the grounds stated in the opinion and report of that body. The order of the Commission and its report and opinion in this particular case, as also its opinion in the California Commercial Association case, which, as we have said, was decided on the same day, were made part of the answer, and the opinion in the Buckeye Buggy Company case was also attached.
pro confesso was entered against the Export Shipping Company and its trustee in bankruptcy, the company having become bankrupt.
Adopting a suggestion made by the court in disposing of the motion for a preliminary injunction, it was stipulated between the solicitors for the various parties that the case should be treated as having been submitted for final hearing. Thereupon a final decree was entered by which the order of the Commission was set aside and declared to be void. This appeal was then taken.
considered by the court because they were foreclosed by the opinion of the Commission. Doubtless the mistake of the court below in this respect was occasioned by overlooking the scope of the Hepburn Act and because the decision below was made in June, 1909, before the announcement of the opinion in the Pitcairn case. The reasons above stated also serve to narrow the contentions pressed at bar, since such contentions likewise in their essence but reiterate the conflict of opinion which developed in the Commission, but which, for the reasons stated, are, for the purpose of our review, substantially reducible to the one legal question which we have stated. We shall therefore confine ourselves to a consideration of that question and to such brief notice of the other contentions urged as will make clear that they depend ultimately upon conclusions of fact not open in this Court for review.
The contention that a carrier, when goods are tendered to him for transportation, can make the mere ownership of the goods the test of the duty to carry, or, what is equivalent, may discriminate in fixing the charge for carriage, not upon any difference inhering in the goods or in the cost of the service rendered in transporting them, but upon the mere circumstance that the shipper is or is not the real owner of the goods, is so in conflict with the obvious and elementary duty resting upon a carrier and so destructive of the rights of shippers as to demonstrate the unsoundness of the proposition by its mere statement. We say this because it is impossible to conceive of any rational theory by which such a right could be justified consistently either with the duty of the carrier to transport or of the right of a shipper to demand transportation. This must be, since nothing in the duties of a common carrier by the remotest implication can be held to imply the power to sit in judgment on the title of the prospective shipper who has tendered goods for transportation.
"a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property . . . than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic, under substantially similar circumstances and conditions,"
authority is to be implied for basing a charge for transportation upon ownership or nonownership of the goods tendered for carriage, upon the theory that such ownership or nonownership is a dissimilar circumstance and condition within the meaning of the section.
the service of the carrier began or after it was terminated. It was therefore settled in England that the clause forbade the charging of a higher rate for the carriage of goods for an intercepting or forwarding agent than for others. Great Western R. Co. v. Sutton, 1869, 4 H.L. 226; Evershed v. London & N.W. Ry. Co., 1878, 3 App.Cas. 1029, and Denaby Main Colliery Co. v. Manchester &c. Ry. Co., 1885, 11 App.Cas. 97. And it may not be doubted that the settled meaning which was affixed to the English Equality Clause at the time of the adoption of the Act to Regulate Commerce applies in construing the second section of that act; certainly to the extent that its interpretation is involved in the matter before us. Wight v. United States, 167 U. S. 512; Interstate Commerce Commission v. Alabama M. R. Co., 168 U. S. 144, 168 U. S. 166.
the right to discriminate as to those who shall be entitled to avail of them. Moreover, the contention is not open for review, because the legal question of the right of the carrier to consider ownership under the second section having been disposed of, the finding of the Commission that to permit the enforcement of the rule would give rise to preferences and engender discriminations prohibited by the Act to Regulate Commerce embodies a conclusion of fact beyond our competency to reexamine.
Second. Conceding, for the sake of the argument, the correctness of the construction which we have given to the second section, it is urged that nevertheless, as a forwarding agent is a "dealer in railroad transportation," and depends for his profit in carrying on his business upon the sum which can be made by him out of the difference between the carload and the less-than-carload rate, and may discriminate between the persons who employ him, therefore the Act to Regulate Commerce should be construed as empowering a carrier to exclude the forwarding agent as a means of preventing such discriminations. But, in the absence of any statutory authority to exclude the forwarding agent, and basing the right to exclude merely upon the assumption that the nature and character of his business would produce discrimination, and therefore justify the exclusion, the contention is not open for our consideration, because, like the previous one, it is foreclosed by the finding of fact of the Commission. Indeed, this is not merely the result of an implication from the finding of the Commission, since it was affirmatively found that to permit the carrier to exclude the forwarding agent would be to produce preference and discrimination. The contention, then, comes to this -- that carriers should be permitted to give preferences and make discriminations as a means of preventing those unlawful conditions from arising.
agent is in a sense competitive with that of a carrier, and may largely diminish the revenue derived by railroad companies from their less-than-carload rates, and hence cripple their ability to successfully conduct business, therefore the right to exclude the forwarding agent, even if there is no power to exclude the owner or the ordinary agent of owners, should be permitted. This, however, again, in a two-fold sense, is directly in conflict with the findings of fact made by the Commission -- first because it disregards the findings as to the operation of the business of a forwarding agent, and second because it overlooks the express finding of the Commission that it would be so difficult, if not impossible, for the carrier to determine in practice the nature and character of the title of a person tendering goods for shipment that the necessary result of a rule excluding a forwarding agent would be to embarrass shipments by owners or their special agents, and thus beget universal uncertainty and constant discrimination and preference against owners.
As it follows from the reasons just stated that the court below erred in annulling the order of the Commission and enjoining its enforcement, its decree to that effect is reversed, and the case is remanded, with directions to dismiss the bill.


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Susan Cahoon, a Fellow in the American College of Trial Lawyers, has chaired the firm's Litigation practice group and is the firm's General Counsel. She joined the firm in 1971 and was admitted to partnership in 1977. Ms. Cahoon has spent all of her career as a litigator. Her diverse experience includes patent infringement litigation, complex commercial disputes and securities litigation. She also is trained as a mediator and as an arbitrator.
Lead counsel for Porex Surgical, Inc., and Porex Corporation in patent infringement litigation. Soon after filing the suit, we filed a motion for preliminary injunction, engaged in expedited discovery and had a hearing date for an evidentiary hearing on the motion. At the same time the case was proceeding, our client was engaged in confidential negotiations for an asset sale transaction that included the operating business and the patent involved in the litigation that made the resolution of the case an important consideration in closing that transaction. Against that backdrop, we were able to negotiate a settlement of the lawsuit with Synthes on terms that pleased not only our client but the third party with which our client was negotiating and enabled our client to close its significant asset sale transaction. Porex Surgical, Inc. et al v. Synthes USA Sales, LLC et al., No. 3:10-cv-00023 (N.D. Ga. filed Feb. 10, 2010).
The firm served as lead counsel for Biotec Pharmacon, ASA, a Norwegian pharmaceutical company, in patent infringement litigation initiated by patent owner Biothera, a Minnesota corporation, in the District of Minnesota in Minneapolis. The 14 patents involved in the litigation relate to, among other things, beta glucan compositions for immunotherapy. The District Court granted summary judgment of non-infringement as to 12 of the 14 patents, and the case subsequently settled. Biopolymer Eng'g, Inc. v. Immunocorp, No. 05-536 (D. Minn. filed Mar. 14, 2005).
Represented Smith & Nephew Endoscopy-Andover in a patent infringement litigation brought by KarlStorz Endoscopy-America Inc. that included several patents directed to systems for controlling operating room equipment. Case settled. Karl Storz Endoscopy-Am., Inc. v. Stryker, Inc., No. 07-02702 (W.D. Tenn. filed Nov. 2, 2007).
Represented a Fortune 500 brewery to secure a judgment as a matter of law that there was a likelihood of confusion between our client’s mark and the defendant’s mark. We prevailed on summary judgment on their unfair competition counterclaims and then successfully defended against an appeal and a petition for certiorari.
Represents an engineering and manufacturing firm accused of developing machinery using the confidential information and trade secrets of a supplier of the same type of machinery in breach of a distribution agreement and trade secret statutes. The matter involves AAA Arbitration in Chicago, Illinois, that is being administered by the International Centre for Dispute Resolution – AAA because the contract concerns international arbitration. The opposing party resisted arbitration and the firm first had to secure orders in federal courts in W.D. of Washington and N.D. of Illinois before arbitration of all disputes was compelled by the court in the N.D. of Illinois.
The firm served as lead counsel on behalf of a number of defendants, including Motorola, AT&T, and Cox Communications in two parallel patent infringement actions in the Western District of North Carolina and the Eastern District of Texas regarding technology involving wireless telephone handset equipment, and digital cable or satellite set-top boxes. After a favorable claim construction ruling for our clients in the North Carolina matter, the plaintiff agreed to dismiss its claims for infringement with prejudice in both North Carolina and Texas. Thomas v. Motorola, Inc., No. 05-00493 (W.D.N.C. filed Nov. 28, 2005); Thomas v. Cingular Wireless LLC, et al., No. 05-00495 (W.D.N.C. filed Nov. 28, 2005); Thomas v. Cox Commc'ns, Inc., et al., No. 07-0231 (E.D. Tex. filed June 6, 2007); Thomas v. Adelphia Commc'ns Corp., et al., No. 05-00497 (W.D.N.C. filed Nov. 28, 2005); Thomas v. Alltel, et al., No. 05-0506 (W.D.N.C. filed Dec. 6, 2005).
Served as lead counsel on behalf of Molnlycke Health Care Group AB in a patent infringement suit against two competitors in the Northern District of Georgia involving silicone-based wound dressings. The court entered a favorable claim construction ruling for our clients, and the case settled while summary judgment motions were pending after the manufacturer of the accused products removed them from the U.S. marketplace. Molnlycke Health Care Group AB v. Ossur & Medline, No. 06-1027 (N.D. Ga. filed Apr. 28, 2006).
Represented Smith & Nephew in a patent infringement suit against Synthes Corp. in the Western District of Tennessee. After a three-week bench trial, the court found Smith & Nephew’s patents to be valid and infringed. The court entered a permanent injunction in September 2006 enjoining Synthes from continuing to sell infringing bone repair devices. This is one the first permanent injunctions entered in a patent case after the Supreme Court’s eBay opinion. After briefing and argument in the Federal Circuit, the parties reached a confidential settlement of the case. Smith & Nephew Inc. v. Synthes (U.S.A.), 466 F. Supp.2d 978 (W.D. Tenn. 2006).
The firm served as lead counsel on behalf of Oklahoma Medical Research Foundation in a patent infringement suit brought in the Northern District of Oklahoma against Alexion Pharmaceuticals. The patents related to complement-inhibition technology and their use in a drug marketed by Alexion to treat a rare, debilitating and life-threatening disease. After replacing OMRF’s previous counsel in the matter and soon after claim construction briefing was complete, we obtained a settlement. It included payment to our client as well as public acknowledgement that individuals affiliated with OMRF were the true inventors of the technology at issue. Oklahoma Med. Research Found. v. Alexion Pharmaceuticals, Inc., No. 07-163 (N.D. Okla. filed Mar. 15, 2007).

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This matter is before the United States Magistrate Judge, with the consent of the parties and by an order of reference [Doc. 20], for decision and entry of a final judgment. Plaintiff's application for disability insurance benefits was administratively denied following a hearing before an Administrative Law Judge (“ALJ”). This is an action for judicial review of the Commissioner's final decision, per 42 U.S.C. § 405(g). Each party filed a dispositive motion [Docs. 16 and 21] with a supporting memorandum [Docs. 17 and 22].
The sole function of this Court in making this review is to determine whether the findings of the Commissioner are supported by substantial evidence. McCormick v. Sec. of Health & Human Servs., 861 F.2d 998, 1001 (6th Cir. 1988). “Substantial evidence” is evidence that is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389 (1971). It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury. LeMaster v. Sec'y of Health & Human Servs., 802 F.2d 839, 841 (6th Cir. 1986). The Court may not try the case de novo nor resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues differently, the Commissioner's decision must stand if supported by substantial evidence. Listenbee v. Sec. of Health & Human Servs., 846 F.2d 345, 349 (6th Cir. 1988). Yet, even if supported by substantial evidence, “a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.” Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).
4. Considering the claimant's RFC, can he or she perform his or her past relevant work?
20 C.F.R. § 404.1520(a)(4). A claimant bears the ultimate burden of establishing disability under the Social Security Act's definition. Key v. Comm'r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997). The burden shifts to the Commissioner with respect to the fifth step if the claimant satisfies the first four steps of the process. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
Plaintiff was thirty-eight years old and was a younger person under the applicable regulations at the time she filed her application (Tr. 30, 133). Plaintiff's prior relevant work experience includes work as a waitress, cook, and a check cashier (Tr. 40). She alleges a disability onset of June 27, 2011, due to depression, diabetes, asthma, chronic obstructive pulmonary disorder (COPD), high blood pressure, and obesity (Tr. 167). She met the insured status requirement through September 30, 2016 (Tr. 14). Accordingly, she must establish disability on or before that date in order to be entitled benefits. 20 C.F.R. § 404.130.
In December 2015, an ALJ conducted an evidentiary hearing; Beckett and a vocational expert (“VE”) testified. The ALJ found Plaintiff was not disabled and denied benefits. The appeals council denied a review request (Tr. 1). Plaintiff now appeals to this Court.


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Before CALABRESI, LYNCH, and LOHIER, Circuit Judges. Jeffrey F. Borrell, Borrell & Riso LLP, Staten Island, NY, for Plaintiff–Appellant. David S. Heller, John P. Connors, Connors & Connors PC, Staten Island, NY, for Defendant–Appellee.
On June 22, 2008, Evelyn Gustafson, plaintiff's decedent, went shopping at a Target store. While shopping, the seventy-six-year-old woman attempted to use a restroom made available for elderly and disabled individuals and, upon entering the restroom, fell. Gustafson was then taken to a hospital and found to have fractured her hip. On July 25, 2008, Gustafson brought suit against Target in the Eastern District of New York, asserting that she fell as a result of Target's negligence in maintaining the bathroom door, which, her complaint alleged, closed with excessive speed and force. More than two years later, after Gustafson's death on October 30, 2010, Target moved for summary judgment.1 On May 14, 2015, the district court (Chen, J.) granted Target's motion for summary judgment on the basis that the plaintiff had presented insufficient evidence of causation. Gustafson's estate appealed.
We review de novo a district court's grant of summary judgment. Summary judgment is appropriate only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether there are genuine disputes of material fact, we are “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir.1997). We will affirm summary judgment “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The case before us having been brought under diversity jurisdiction, we apply New York law.
Upon such review, we conclude that Target was entitled to summary judgment. Evelyn Gustafson, plaintiff's decedent, fell while exiting a restroom in defendant Target's store. To succeed, plaintiff's claims require a factfinder to conclude that Evelyn Gustafson's accident was caused by a defect in the restroom door at that store. To decide whether a factfinder can reach such a causal conclusion in the absence of direct evidence of the likelihood of causation, New York courts consider three factors. First, was there evidence of negligence or a defect on defendant's part, and, if there was, did that negligence or defect increase the chances of plaintiff's injury occurring, and by how much? That is, how strong was the circumstantial evidence of causation?2 See, e.g., Dillon v. Rockaway Beach Hosp. & Dispensary, 284 N.Y. 176, 30 N.E.2d 373, 374 (N.Y.1940) (finding adequate causation solely through strength of circumstantial evidence where patient alleged that a lamp had originally been over his hospital bed, that upon his return from surgery it was not, that a nurse later removed the lamp from the foot of his bed, and that his foot was badly burned); cf. Morejon v. Rais Const. Co., 7 N.Y.3d 203, 818 N.Y.S.2d 792, 851 N.E.2d 1143, 1149 (N.Y.2006) (noting that the doctrine of res ipsa loquitur “is nothing more than a brand of circumstantial evidence,” in which “a question of fact as to the defendant's liability” may be found “by simply evaluating the circumstantial evidence”). Second, which party is better placed to tell us whether the negligence or defect was in fact likely to be a cause of the injury or whether the injury would have happened regardless of the negligence or defect? See, e.g., Alabre v. Kings Flatland Car Care Ctr., Inc., 84 A.D.3d 1286, 924 N.Y.S.2d 174, 175 (App. Div. 2nd Dep't 2011) (stating that a fallen plaintiff's “inability to identify the cause of the fall is fatal to the cause of action,” and reflecting the view that the plaintiff is best poised to know why she fell, as another's conclusion “would be based on speculation”); cf. Martin v. Cartledge, 102 A.D.3d 841, 958 N.Y.S.2d 452, 452 (App. Div. 2nd Dep't 2013) (voicing the “well settled” principle that “a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle” requiring the driver “to rebut the inference of negligence by providing a nonnegligent explanation for the collision,” and thereby reflecting the view that the rear driver is better positioned to explain the cause of the collision (internal quotation marks omitted)). And third, has the relevant jurisdiction, for example, by its statements as to the level of duty owed by the parties, indicated a preference in favor of or against liability in the given context? See, e.g., Benitez v. N.Y.C. Bd. of Educ., 73 N.Y.2d 650, 543 N.Y.S.2d 29, 541 N.E.2d 29, 33–34 (N.Y.1989) (finding inadequate causation where student wrestler alleged that coach's failure to prevent him from playing unfair match caused injuries, in light of New York's policy with respect to allocation of risks in athletic endeavors).
In the case before us, plaintiff's experts' reports, to the extent they are admissible, do show the possibility of a defect—that the door to the restroom closed somewhat too rapidly—and that such a defect could be dangerous to elderly or disabled users of the facility such as Gustafson. There is also evidence that the facility was expressly available to elderly and disabled users. The reports do not, however, purport to assert that such a defect, if present, was in fact likely to be the cause of Gustafson's accident.
At one time, in New York, absent more direct evidence that the defect was likely to have caused the accident, evidence of increased danger did not generally suffice to avoid summary judgment for a defendant. See Wolf v. Kaufmann, 227 A.D. 281, 237 N.Y.S. 550, 551–52 (App. Div. 1st Dep't 1929) (finding insufficient evidence that defendant's wrongful failure to light a staircase caused plaintiff's fall and injury because “there is nothing to show that the accident occurred in the use of the stairs in the ordinary manner”).3 All that has long since changed, as courts have come to understand the thrust of Chief Judge Cardozo's important opinion in Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (N.Y.1920). That case stated that when a party's negligence increased the likelihood of an accident occurring, a jury could find that the negligence caused the harm, even in the absence of more direct evidence indicating causation. Id. at 816. Proffering evidence negating causation then becomes the responsibility of the party that seeks to deny the effect of its negligence. And today, circumstantial connections between a defendant's negligence and the harm that occurred have been deemed enough to raise a question for the jury, not only when the defendant has greater knowledge of what in fact occurred, but even when neither side can tell us what happened. See, e.g., Schneider v. Kings Highway Hosp. Ctr., Inc., 67 N.Y.2d 743, 500 N.Y.S.2d 95, 490 N.E.2d 1221, 1221–22 (N.Y.1986) (concluding that jury could find hospital caused plaintiff's fall “based wholly on circumstantial evidence” where elderly plaintiff “remembered only that she had rolled over” and was found “face down on the floor,” because “of the hospital's rule requiring that the side rails on the bed of a patient over 70 years of age be maintained in raised position” and because patient's “deteriorated physical condition tended to prove that she was not [herself] able to lower the rail”); Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 906 N.Y.S.2d 528, 529 (App. Div. 1st Dep't 2010) (finding adequate causation through strength of circumstantial evidence where plaintiff testified that she slipped on a stair and an expert testified that the stairs were slippery due to worn-off treads); Liriano v. Hobart Corp., 170 F.3d 264, 271–72 (2d Cir.1999) (applying New York law and stating that “[w]hen a defendant's negligent act is deemed wrongful precisely because it has a strong propensity to cause the type of injury that ensued, that very causal tendency is evidence enough to establish a prima facie case of cause-in-fact. The burden then shifts to the defendant to come forward with evidence that its negligence was not such a but-for cause․ Under [this] approach, the fact that [plaintiff] did not introduce detailed evidence of but-for causal connection between [defendant's] failure to warn and his injury cannot bar his claim”); see also Zuchowicz v. United States, 140 F.3d 381, 390–91 (2d Cir.1998) (applying federal law). This would be so, of course, unless the level of duty was such as to favor no liability. See Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 121 (2d Cir.2006).
Nevertheless, even the weak circumstantial evidence connecting defendant's alleged negligence and Gustafson's fall might in New York be enough to let this case go to the jury if the defendant were as well or better placed to tell us what, in fact, had likely happened. See, e.g., Gayle v. City of New York, 92 N.Y.2d 936, 680 N.Y.S.2d 900, 703 N.E.2d 758, 758–59 (N.Y.1998) (finding large puddle on roadway sufficient circumstantial evidence that defendant's negligence in maintaining drainage system caused plaintiff's injuries, where plaintiff alleged that he skidded on wet roadway and collided with truck, resulting in loss of memory about the accident); Schneider, 500 N.Y.S.2d 95, 490 N.E.2d at 1222 After all, a too-fast closing door does increase the chances of an elderly or disabled person being hit by the door and falling. And if Gustafson had died or been rendered incapable of testifying immediately as a result of her fall, we might conclude that New York would let the question of causation go to a jury. But that is not what happened here. And so we need not decide whether such weak circumstantial evidence would be enough.
In the instant case, Gustafson was perfectly well able to testify as to whether the speed of the door was a cause of her accident. She did not do so. She has since died, but her counsel made a strategic decision not to obtain and preserve her testimony prior to her death.5 Under the circumstances, and in the absence of any indication that New York's policy strongly favors liability in such circumstances, see, e.g., Gemmink v. Jay Peak, Inc., 807 F.3d 46, 50 (2d Cir.2015) (affirming a grant of summary judgment to defendants where the law of the jurisdiction was “relatively indifferent to error in one direction or the other, offering no reason to favor either the plaintiff or defendant”), we conclude that the link between defendant's purported negligence and Gustafson's injury is too weak to permit a jury to conclude that Target's asserted negligence caused Gustafson's fall and injury.
We have considered plaintiff's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment and order of the district court.

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Sai v. TSA: A case study in TSA secrecy | Papers, Please! Sai v. TSA: A case study in TSA secrecy – Papers, Please!
Time and time again, the TSA has acted as though its middle name was “secrecy” rather than “security”.
Case in point: Sai v. TSA.
Sai poses no threat to aviation security. He has an unusual but recognized medical condition, attested to by documentation from his doctor that he carries when he travels, for which he needs ready access to liquids. The TSA is required by law to accommodate such medical disabilities, as it easily could. TSA press releases claim that travelers are allowed to bring medically necessary liquids through TSA checkponts in any quantity.
But TSA employees at airport checkpoints at Logan Airport in Boston and the TSA contractors who staff the checkpoints at San Francisco International Airport have, among other improper actions, seized Sai’s medical liquids, denied him access to his medical liquids while detaining him, and refused to allow him to pass through checkpoints or travel by air unless he abandoned his medical liquids.
While detaining Sai, TSA employees and contractors have conducted searches unrelated to weapons or explosives (but directly related to activities protected by the First Amendment), including reading through and copying documents Sai was carrying.
The TSA has never tried to claim that any of these actions were justified by “security” concerns. Instead, the TSA has responded to Sai’s requests for information, administrative complaints, and eventual federal lawsuit solely on the basis of secrecy, when it has responded at all, arguing that it isn’t required to divulge anything about what it has done, why, or whether it is justified.
The TSA claims to practice “layered security,” but Sai’s saga shows how the TSA actually practices “layered secrecy” to shield its activities from public and judicial accountability.
Despite TSA press releases describing (often incorrectly) what does or will happen at checkpoints run by the TSA and its contractors, there are no publicly-disclosed or binding “rules” or “policies” governing the conduct of travelers or checkpoint staff.
The TSA has internal “Standard Operating Procedures” (SOPs) for traveler screening. But while the TSA has argued in several court cases that its SOPs are “final agency orders” binding on travelers (who don’t know what the orders we are supposed to follow say), the TSA has simultaneously argued that its SOPs are not “substantive rules of general applicability adopted as authorized by law, [or] statements of general policy or interpretations of general applicability formulated and adopted by the agency,” which the Freedom of Information Act (FOIA), 5 U.S. Code § 552(a)(1)D), would require the TSA to make available to the public. Even when we have specifically requested the checkpoint screening and other SOPs, those requests have been denied.
In other words, the secret SOPs give the public duties, but give us no rights.
The Rehabilitation Act, 29 U.S. Code § 794, which forbids discrimination against people with disabilities, does create rights and remedies, and requires all agencies to adopt regulations to implement them, as the DHS has done in 6 C.F.R. Part 15. Sai complained to the TSA that his rights under this law had been violated. After Sai was interviewed on on national television about what had happened to him, the TSA ordered retraining of all checkpoint staff nationwide regarding the handling of medically necessary liquids. The TSA even prepared a response to Sai’s complaint. However, the TSA has refused, for more than a year, to send Sai that response, probably because it could be used in court against the TSA in a future lawsuit under the Rehabilitation Act.
Unable to get any response to his complaint or FOIA and Privacy Act requests, Sai filed a pro se federal lawsuit in January 2014 under both FOIA and the Privacy Act for the TSA’s records about what happened to him at the airports in BOS and SFO, records related to his Rehabilitation Act complaint, and any other TSA records about himself.
The TSA has yet to make any substantive objection to the lawsuit. Bizarrely, the TSA tried to get portions of Sai’s complaint dismissed as an improper attempt to litigate whether information the TSA might later claim to constitute “Sensitive Security Information” (SSI) should be released, when the TSA had not yet responded to Sai’s request or invoked this or any other basis for withholding any of the requested information, as alleged SSI or otherwise.
Until recently, the issues in Sai v. TSA were limited to the TSA’s non-response to Sai’s requests, and its bad faith in failing to respond and in lying to the court about what it had done. Mostly, the TSA has fought to avoid having to make any substantive response to either the factual or legal allegations in Sai’s complaint.
The TSA filed a sworn declaration from an allegedly knowledgeable official denying having received or having any record of one of Sai’s FOIA requests, despite having sent Sai what appeared to be an email acknowledgement of the request and having received another copy of the request in the course of the litigation. After placing this essential factual issue in dispute, the TSA requested a “protective order” against any discovery or depositions related to this or any other factual issue, on the grounds that discovery is “ordinarily ” unnecessary in FOIA (although not so much Privacy Act) litigation because the facts aren’t usually disputed, only the legal questions of the applicability of exemptions once they have been claimed. The judge hearing the case has deferred ruling on discovery and depositions until the TSA files its initial answer to the complaint, although Sai has requested reconsideration of that ruling.
We’ve been on the receiving end of obstruction of our FOIA requests by TSA and DHS officials on the basis of documented personal animus, and there has been systematic political interference by the DHS “front office” with FOIA responses. In Sai’s case, it’s not clear, and probably won’t become clear without discovery, depositions, and perhaps trial, whether the false claims to the court in this case by the TSA’s lawyers and officials reflect gross incompetence, gross negligence, and/or personal or systemic malice.
This month, just days before the TSA’s answer to Sai’s complaint was due, the agency finally provided its first partial responses to some of Sai’s requests, including its first claims that some of the information Sai has been requesting is exempt from disclosure as SSI.
As applied to non-SSI images of TSA operations, this provision of the MOA appears to be illegal. We can’t find any basis in the Massachusetts public records law for the withholding by a Masschusetts state agency such as Massport of records created and owned by that agency, on the basis of the failure of a federal agency such as the TSA to give its “authorization” for their disclosure. Nor is there anything in Massachusetts law that authorizes a state agency to exempt itself from its state-law obligations by entering into an agreement with a federal agency to give that agency veto power over disclosures of state-owned records.
Images or other records the TSA claims constitute SSI are another matter. One of the particular evils of the SSI statute and regulations is that they purport to permit the TSA to forbid any third-party “covered person” from disclosing information the TSA subsequently deems to be SSI, even if the information was neither created by, owned by, or obtained from the TSA. The definition of “covered persons” includes any person employed or ever formerly employed by or “contracted to” any airline, airport, travel agency, or computerized reservation system or global distribution system for airline passenger reservations.
So far as we can tell, the TSA has yet to test the legality of sanctioning disclosure by an independent third party of information lawfully created and obtained independently of the TSA or of the former employment that made that individual a “covered person” for life. But the TSA claims, in its regulations, the right to do so.
The inclusion of anyone with any relevant industry or government experience in the definition of “covered persons” forbidden from disclosing anything that the TSA decides is SSI is particularly effective in precluding whistleblowing, insider criticism, or informed expert commentary on TSA practices.
A recent bipartisan report by the staff of the House Oversight and Government Reform Committee — itself the result of whistleblowing by the former head of the TSA’s Office of SSI — focuses on the political use of SSI designation decisions to block the release of information that might embarrass the TSA, regardless of whether it fits the definition SSI in the law and regulations. That’s what happened in the case of TSA whistleblower Robert MacLean, to be heard this year by the U.S. Supreme Court, in which the TSA fired Mr. MacLean for having previously gone to the press and members of Congress with harmless but embarrassing information that, three years later, the TSA labeled as SSI.
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