text:
7. As to Karadžić’s request for participation in the Rule 86 proceedings referred to in the Motion, the Appeals Chamber notes that the proceedings concern requests for variation of protective measures granted by the International Criminal Tribunal for the former Yugoslavia with regard to Prosecution witnesses. In these circumstances, when deciding whether to vary the existing protective measures, the Appeals Chamber considered it appropriate to seek information from the Prosecution. The Appeals Chamber did not consider it necessary to lift the ex parte status of the Rule 86 Applications in respect of Karadžić and invite him to make submissions because it did not consider that Karadžić would be in a position to supplement the witness protection information from the Witness Support and Protection Unit of the Mechanism or offer other information relevant to witness protection concerns of Prosecution witnesses. The Appeals Chamber emphasizes that the Rule 86 Applications concern the application of witness protection measures in domestic proceedings, not Karadžić’s appeal. For these reasons, the Appeals Chamber finds that Karadžić has failed to demonstrate that he has standing to participate in the Rule 86 proceedings identified in the Motion.
 In addition, the Appeals Chamber observes that the Practice Direction on the Procedure for Variation of Protective Measures allows for applications pursuant to Rule 86 of the Rules to be filed ex parte with regard to one or more of the parties in the proceedings, provided that the applicant provides an explanation of the good cause for filing the application ex parte. See Practice Direction on the Procedure for Variation of Protective Measures, para. 6. The Appeals Chamber is satisfied that the Rule 86 Applications evince good cause for their ex parte status as they contain information identifying domestic investigations and pre-trial proceedings.
DETERMINE that, pursuant to Rules 8(A) and 131 of the Rules, this matter shall be reported to the United Nations Security Council.
 See Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, paras. 33-35.
 See Prosecutor v. Drago Josopivić, Case No. IT-95-16-R, Order Designating a Pre-Review Judge, 25 April 2002, p. 2 (emphasis added). See also Rule 135(B) of the Rules.
9. The Appeals Chamber recalls that legal officers assisting Judges at the Tribunal are not subject to the same standards of impartiality as the Judges of the Tribunal, and that judicial decision-making is the sole purview of the Judges. Legal officers merely provide assistance to the Judges in legal research and preparing draft decisions, judgements, opinions, and orders in conformity with the instructions given to them by the Judges.
10. Notwithstanding the above, in some cases, a prospective staff member’s statements or activities may be so problematic as to either impugn the perceived impartiality of the Judges or the appearance thereof, or, even if this were not the case, the Tribunal’s fundamental guarantees of fair trial. In this respect, the Appeals Chamber recalls in particular, that an unacceptable appearance of bias exists, inter alia, where the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias. The Appeals Chamber further recalls that there is a presumption of impartiality which attaches to the Judges of the Tribunal and which cannot be easily rebutted.
37. When addressing whether the impartiality of the Judges in this case could be affected by the Impugned Staff’s involvement in the Karadžić case, the Trial Chamber found that, even though “there is a considerable degree of overlap between the Karadžić case and the present case”, “a properly informed and reasonable observer would not consider […] that the judges in the present case ha[ve] failed to maintain the high degree of integrity and impartiality to which they are sworn, even if they or the Impugned Staff had worked on both cases.” It added that a properly informed and reasonable observer would not expect that the Judges in this case would do anything other than rule fairly on the issues before them, relying exclusively on the evidence adduced in the present case, even if they or their staff had been exposed to evidence in both cases. The Trial Chamber concluded that the presumption of impartiality attached to the Judges in this case had not been rebutted on the basis that the Impugned Staff had worked on an overlapping case in which factual findings were made in relation to Mladić.
38. With respect to Mladić’s argument that the Trial Chamber failed to sufficiently reason its conclusions relating to the application of the reasonable observer test, the Appeals Chamber considers that Mladić’s arguments effectively amount to a challenge to how the reasonable observer test has been interpreted in the case law. The Appeals Chamber is of the view that Mladić’s argument reflects his disagreement with the jurisprudence relied upon by the Trial Chamber and set out in detail in the applicable law section of the Impugned Decision, as well as with the Trial Chamber’s reliance on this jurisprudence when assessing whether the Impugned Staff’s involvement in the Karadžić case could lead to an appearance of bias of the Judges in this case without explaining how the Trial Chamber erred in following this case law. The Appeals Chamber finds that Mladić fails to demonstrate an error in the Trial Chamber’s reasoning.
39. Moreover, the Appeals Chamber recalls that “‘mere assertions to the effect that a staff member may influence a Judge during deliberations or the adjudication process are not a sufficient basis, in and of themselves’, to create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of judges.” Accordingly, the Appeals Chamber does not consider that a staff’s previous work on an overlapping case is, in and of itself, sufficient to impugn the Judges’ impartiality or the appearance thereof. The Appeals Chamber therefore finds no merit to Mladić’s argument that a reasonable observer would consider that the fact that the Impugned Staff previously worked on the closely-related Karadžić case, is sufficient to rebut the impartiality of the Judges in this case.
See also paragraphs 30, 33.
 The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), para. 273, referring to, inter alia, Bizimungu et al. Appeal Decision, para. 9, Ildephonse Hategekimana v. The Prosecutor, Case No. ICTR‑00-55B-A, Judgement, 8 May 2012 (“Hategekimana Appeal Judgement”), para. 20.
 Nyiramasuhuko et al. Appeal Judgement, para. 273; Bizimungu et al. Appeal Decision [The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009], para. 9.
 Bizimungu et al. Appeal Decision, para. 11.
 See, e.g., Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Judgement, 30 June 2016 (“Stanišić and Župljanin Appeal Judgement”), para. 43 and references cited therein.
 See, e.g., Stanišić and Župljanin Appeal Judgement, para. 44 and references cited therein; Nyiramasuhuko et al. Appeal Judgement, para. 273; Hategekimana Appeal Judgement, para. 16.
 Impugned Decision [Prosecutor v. Ratko Mladić, Case No. IT-09-92-T, Decision on Defence Motion for a Fair Trial and the Presumption of Innocence or, in the Alternative, a Mistrial, 4 July 2016], para. 22.
 Hategekimana Appeal Judgement, para. 20, quoting Bizimungu et al. Appeal Decision, para. 10.
 Nyiramasuhuko et al. Appeal Judgement, para. 105 and references cited therein. See also Prosecutor v. Radovan Karadžić, Cases Nos. IT-95-5/18-AR72.1, IT-95-5/18-AR72.2, IT-95-5/18-AR72.3, Decision on Radovan Karadžić’s Motions Challenging Jurisdiction (Omission Liability, JCE-III – Special Intent Crimes, Superior Responsibility), 25 June 2009, para. 30.
 Impugned Decision [Prosecutor v. Ratko Mladić, Case No. IT-09-92-T, Decision on Defence Motion for a Fair Trial and the Presumption of Innocence or, in the Alternative, a Mistrial, 4 July 2016], para. 18. See also Impugned Decision, para. 14, referring to Bizimungu et al. Appeal Decision [The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009], paras 5, 9; Nyiramasuhuko et al. Appeal Judgement, para. 273; In the Case against Florence Hartmann, Case No. IT‑02‑54‑R77.5, Report of Decision on Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer, 27 March 2009 (public redacted version), para. 54.
 See United Nations Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 26 August - 6 September 1985, endorsed by United Nations General Assembly Resolutions A/RES/40/32 and A/RES/40/146 of 29 November 1985 and 13 December 1985, respectively (“U.N. Basic Principles on the Independence of the Judiciary”).
 See Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Judgement, 30 June 2016 (public with confidential Annex C), para. 42; Prosecutor v. Nikola [ainović et al., Case No. IT-05-87-A, Judgement, 23 January 2014, para. 179; Prosecutor v. Milan Martić, Case No. IT-95-11-A, Judgement, 8 October 2008, para. 39; Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement, 21 July 2000, para. 177, n. 239. See also Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-PT, Decision on Motion for Disqualification, 10 June 2003, pp. 2-3 (“Judges […] serve only the international community” and “disavow any influence by the policies of any government, including the government of their home country”); Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision of the Bureau on Motion on Judicial Independence, 4 September 1998, pp. 7-9.
 See Universal Declaration of Human Rights, 10 December 1948, United Nations General Assembly Resolution 217 A (III), Article 10 (“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”); International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Article 14(1) (“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”); European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, Article 6(1) (“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”); American Convention on Human Rights, Costa Rica, 22 November 1969, Article 8(1) (“Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”). See also African Charter on Human and Peoples’ Rights, 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 26 (“States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.”).
 Case of Miguel Gonzáles del Río v. Peru, Communication No. 263/1987, para. 5.2.
 See U.N. Basic Principles on the Independence of the Judiciary, Principle 2 (“The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”); The Bangalore Principles of Judicial Conduct, adopted by the Judicial Group on Strengthening Judicial Integrity as revised at the Round Table Meeting of Chief Justices, 25-26 November 2002, Value 1.1 (“A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.”); The Burgh House Principles on the Independence of the International Judiciary, drafted by the Study Group of the International Law Association on the Practice and Procedure of International Courts and Tribunals, in association with the Project on International Courts and Tribunals, Preamble (“Considering the following principles of international law to be of general application: to ensure the independence of the judiciary, judges must enjoy independence from the parties to cases before them, their own states of nationality or residence, the host countries in which they serve, and the international organisations under the auspices of which the court or tribunal is established”). See also Code of Professional Conduct for the Judges of the Mechanism, MICT/14, 11 May 2015, Article 2.1 (“In the exercise of their judicial functions, judges shall be independent of all external authority or influence.”).
 See, e.g., Article 29 of the [MICT] Statute. Cf. also ICJ Advisory Opinion on Differences Relating to Immunity from Legal Process, paras. 60, 61, 67 (upholding the immunity of a United Nations Special Rapporteur against legal process in his national country); Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989, p. 177, paras. 51, 61 (holding that United Nations Special Rapporteurs enjoy privileges and immunities in their relation with the States of which they are nationals or on the territory of which they reside).
 See United Nations Security Council Resolution 1966, U.N. Doc. S/RES/1966, 22 December 2010 […] (emphasizing that the Mechanism should be a “small, temporary and efficient structure”); See also Article 8(3) of the [MICT] Statute.
 See United Nations Security Council Report, Special Research Report, No. 3, 17 September 2010, p. 1; U.N. Doc. S/PV.6463, 22 December 2010, p. 3.
 See Articles 19 and 29 of the [MICT] Statute.
12. With the arrest of Judge Akay, proceedings on the merits of Ngirabatware’s Request for Review have necessarily come to a standstill. To move the case forward, as suggested by the Prosecution, by the substitution of a judge as a first reaction in response to the current situation is nothing short of violating a core principle that is fundamental to the administration of justice: an independent judiciary.
13. I have long maintained that upholding the integrity of our judicial system entails not exercising the powers conferred upon me as President arbitrarily and eschewing improper influences when determining the composition of judicial benches. It is […] evident […] that reassignment of Judge Akay onto another case is simply an unfair and myopic solution since it would similarly halt proceedings in that case. While pragmatic, this solution will undoubtedly impinge on the fundamental principle of judicial independence as it would allow interference by a national authority in the conduct of a case and the exercise of judicial functions. As such, it will have a chilling effect on the administration of justice. Moreover, the inherent authority of the Mechanism cannot be interpreted, as the Prosecution suggests,  to include taking substantive decisions on the merits of a case in the absence of the consideration by all of the members of the bench. Judge Akay’s views on this case matter to our solemn deliberations, and, in the present circumstances, decisions on the merits of this case cannot be taken even should they hold the support of a majority of the remaining judges. Moreover, it cannot be said that the integrity of the judicial system would be upheld if a replacement of a judge is viewed as a measure of first rather than last resort, especially where the avenues for the Government of the Republic of Turkey to implement the United Nations Secretary-General’s assertion of immunity have neither been fully explored nor exhausted, including the execution of this request made by Ngirabatware. In this regard, I note that Judge Akay’s release is also being sought pursuant to domestic legal proceedings in Turkey. An application before the European Court of Human Rights has also been filed.
15. This is not to say that judges can never be reassigned or replaced. But a judge has been arrested, immunity has been asserted, it has not been waived, and Judge Akay’s continued presence on the bench has the full support of the person who is seeking relief. Judge Akay is an essential member of this bench. In the absence of extraordinary circumstances, his continued presence on the bench is essential to the preservation of judicial independence. To say Judge Akay can be replaced easily to facilitate the judicial process – at this initial stage and before other avenues have been exhausted – is to say we do not value judicial independence, value justice, value what is right.
 See supra [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Order to the Government of the Republic of Turkey for the Release of Judge Aydin Sefa Akay, 31 January 2017], para. 9.
 See Theodor Meron, Judicial Independence and Impartiality in International Criminal Tribunals, 99 Am. J. Int’l L. 363-65 (2005).
 See [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R] Oral Hearing, T. 17 January 2017 pp. 19, 27.
 See ECHR Ref. No. 59/17.
16. I recall that, while the Mechanism will not lightly intervene in a domestic jurisdiction, there is clear authority to order a state to terminate proceedings against individuals on the basis of the immunity they enjoyed as a result of their connection with the Mechanism. Such orders have been implemented. In the present circumstances, an order to Turkey to immediately cease prosecution and to release Judge Akay so that he can continue to exercise his judicial functions in this case is entirely appropriate and necessary to ensure that the review proceedings can conclude. Such an order is binding on Turkey pursuant to Resolution 1966 adopted by the United Nations Security Council under Chapter VII of the United Nations Charter on 22 December 2010. Article 9 of Security Council Resolution 1966 requires that all States comply with orders issued by the Mechanism.
 Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Injunctions Against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlinder, 6 October 2010 (“Bagosora et al. Decision of 6 October 2010”), para. 18.
 See Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Order Directed to the Republic of Croatia, 18 February 2011, p. 2; Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12 March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia, 14 February 2011, paras. 36, 45, 67, 71; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Stay of Proceedings, 27 January 2011 (“Bagosora et al. Decision of 27 January 2011”), para. 10; Bagosora et al Decision of 6 October 2010, paras. 20-31.
 See, e.g., Prosecutor v. Ante Gotovina et al.,Case No. IT-06-90-A, Communication dated 12 October 2011 from the Ministry of Justice of the Republic of Croatia (Proceedings Pursuant to the Order of the ICTY Trial Chamber Dated 18 February 2011), 14 October 2011 (confidential), Registry Pagination. 3043; Bagosora et al Decision of 27 January 2011, para. 10.
 Prosecutor v. Vujadin Popović et al, Case No. IT-05-88-A, Public Redacted Version of 2 May 2014 Decision on Vujadin Popović’s Third and Fifth Motions for Admission of Additional Evidence on Appeal Pursuant to Rule 115, 23 May 2014, para. 14 (“leave to file a sur-reply may be granted where the reply raises a new issue to which the respondent has not already had the opportunity to respond”).
 Prosecutor v. Naser Orić, Case No. MICT-14-79, Decision on an Application for Leave to Appeal the Single Judge’s Decision of 10 December 2015, 17 February 2016, para. 8 referring to Article 18 of the Statute of the Mechanism and Rules 92 and 131 of the Rules.
 See The Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 August 2006, para. 17. See also Decision of 10 May 2016 [Decision on Motion for Access to Ex Parte Filings in Completed Cases, 10 May 2016], p. 3 and references cited therein.
 Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.2, Registrar’s Submission in Relation to the Order of 20 September 2016, 27 September 2016 (confidential and ex parte); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.3, 27 September 2016, Registrar’s Submission in Relation to the Order of 20 September 2016 (confidential and ex parte); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.2, Prosecution Request for Leave to File Further Submission in Response to Registrar’s Submission in Relation to the Order for Submissions of 20 September 2016, 29 September 2016 (confidential and ex parte); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.3, Prosecution Request for Leave to File Further Submission in Response to Registrar’s Submission in Relation to the Order for Submissions of 20 September 2016, 29 September 2016 (confidential and ex parte). The Appeals Chamber notes that its finding does not extend to the confidential ex parte annexes attached to the Registry’s submissions of 29 September 2016.
 The Appeals Chamber notes that, with regard to two of the five proceedings at issue, Case No. MICT-13-55-R86.F.2, Case No. MICT-13-55-R86.F.3, the ex parte status of the requests made under Rule 86(F) of the Rules was lifted in these instances with respect to the Prosecution as the requests concerned Prosecution witnesses. The request filed as Case No. MICT-13-55-R86.F.1 was dismissed for lack of jurisdiction. Two other proceedings, Case No. MICT-13-55-R86.F.4 and Case No. MICT-13-55-R86.F.5, are currently pending and only assignment orders have been issued to date.
6. As a preliminary matter, the Appeals Chamber notes that the Impugned Decision was rendered after the close of the trial and appeal proceedings in Kamuhanda’s case and that, therefore, Rule 80(B) of the Rules, which requires certification to appeal a decision rendered at trial, by its plain language is not applicable in the present case. The Appeals Chamber further observes that Rule 86 of the Rules, which regulates measures for the protection of victims and witnesses, does not expressly provide for an appeal as of right or address the issue of whether a decision rendered by a Single Judge after the close of trial and appeal proceedings is subject to appeal. In interpreting an equivalent provision in the ICTR Rules, the ICTR Appeals Chamber has held that an applicant is entitled to appeal a decision on witness protective measures which was rendered after the close of the trial and appeal proceedings. Bearing this practice in mind and in light of the importance of the protection of victims and witnesses to the proper functioning of the Mechanism, the Appeals Chamber considers that it has jurisdiction over this appeal.
 See supra [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Appeal of Decision Declining to Rescind Protective Measures for a Deceased Witness, 14 November 2016], paras. 2, 3.
 Rule 80(B) of the Rules reads: “Decisions rendered on such motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber an immediate resolution by the Appeals Chamber may materially advance the proceedings.” See also Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008 (“Niyitegeka Decision of 20 June 2008”), para. 13 (interpreting the parallel for certification in the ICTR Rules of Procedure and Evidence (“ICTR Rules”), Rule 73(B) of the ICTR Rules).
 See Niyitegeka Decision of 20 June 2008, para. 14. See also Georges A.N. Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Order to the Registrar Concerning Georges Rutaganda’s Access to Documents, 22 January 2009, p. 2.
 See [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33] Decision on a Motion for a Public Redacted Version of the 27 January 2010 Decision on Application of The Prosecutor of the Tribunal for Variation of Protective Measures, 11 May 2016, p. 2; Prosecutor v. Dragoljub Kunarac et al., Case Nos. MICT-15-88-R86H.1/MICT-15-88-R86H.2, Decision on Prosecution Requests for a Public Redacted Version of a Decision on Applications Pursuant to Rule 86(H), 9 February 2016, p. 1 and references cited therein.
9. Pursuant to Rule 86(F)(i) of the Rules, protective measures ordered before the ICTY, the ICTR, or the Mechanism (“first proceedings”), continue to have effect in any other proceedings before the Mechanism (“second proceedings”) unless and until they are rescinded, varied or augmented. The Appeals Chamber observes that Kamuhanda requested rescission of protective measures granted to a witness in his own case and, therefore, the Single Judge became seised of the “first proceedings”. In contrast, Rules 86(F)(i), 86(H) and 86(I) of the Rules which form the basis of the Impugned Decision, govern the continuation of protective measures in a “second proceedings” and the conditions for their rescission upon a request from a party to the “second proceedings”, a domestic jurisdiction, or a protected victim or witness.
10. Since Kamuhanda is a party to the “first proceedings” seeking rescission of protective measures in his own case, neither Rule 86(F)(i) nor Rule 86(H), and consequently Rule 86(I) of the Rules, apply in relation to Kamuhanda’s request. Notwithstanding, the Appeals Chamber considers that it was within the Single Judge’s discretion to take into account the conditions for rescission of protective measures set out in Rule 86(I) of the Rules, as the consent of the witness concerned, the existence of exigent circumstances or the potential for a miscarriage of justice may be relevant factors in balancing the interests of the convicted person and the need for the continued protection of victims and witnesses. However, the conditions set out in Rule 86(I) of the Rules are not required as a matter of law in the circumstances of this case where a party is seeking the modification of protective measures granted to one of its witnesses in its own case.
11. The Appeals Chamber further recalls that, pursuant to Rule 86(A) of the Rules, a Chamber may, at the request of either party, order appropriate measures for the privacy and protection of victims and witnesses. Rule 86(A) of the Rules is applicable mutatis mutandis to matters of rescission or variation of protective measures sought by a party in its own case. In assessing whether protective measures should be rescinded or varied under Rule 86(A) of the Rules, a Chamber should take into consideration any information relevant to the requested modification. In such cases, the consent of the witness is not necessarily required if the Chamber is otherwise satisfied that the modification or rescission is justified in the circumstances of the case.
 See Impugned Decision [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Motion to Rescind Protective Measures for Defence Witness ALM, 29 March 2016], p. 3. The Appeals Chamber notes that, although the Impugned Decision contains a reference to Rule 86(J) of the Rules (see Impugned Decision, p. 2), no finding was entered by the Single Judge pursuant to this Rule.
 See also Rule 2(C) of the Rules.
 See The Prosecutor v. François Karera, Case No. ICTR-01-74, Decision Rescinding the Protective Measures of Witness BMI, 27 September 2011, paras. 5, 6; Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Order on Rescission of Protective Measures in relation to Witness Ljubinko Cvetić, 7 December 2006, paras. 1, 2. See also Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54-T, Decision on Jean de Dieu Kamuhanda’s Motion for Protective Measures for Defence Witnesses, 22 March 2001(“Protective Measures Decision”), para. 24 (where the Trial Chamber noted that Kamuhanda could seek at any time variation or augmentation of the protective measures granted to the potential witnesses, including Witness ALM).
12. In granting protective measures in the present case, the Trial Chamber considered that “the fears of the potential witnesses and their families, if they testify on behalf of [Kamuhanda] without protective measures” were well founded. The Appeals Chamber notes that, following the death of a witness who had benefited from protective measures, security concerns may remain for the witness’s family. Therefore, the security concerns of members of a deceased witness’s family may constitute a relevant consideration in determining whether the protective measures granted to the witness should remain in place or be rescinded under Rule 86(A) of the Rules.
 Protective Measures Decision, paras. 14, 16, p. 6.
12. […] the Trial Chamber’s statement that “the Mechanism’s role is not to act as an independent level of appellate review for the national proceedings, but rather to determine primarily whether the conditions for a fair trial in the domestic jurisdiction no longer exist” is entirely consistent with Article 6(6) of the Statute and Rule 14(C) of the Rules, which govern the Mechanism’s authority to revoke cases referred to national jurisdictions.
64. The Appeals Chamber finds that Uwinkindi demonstrates no error in the Trial Chamber’s statement that it was not within its purview to scrutinize the Rwandan legal aid budget, inquire into its sufficiency, or verify its administration and disbursement, particularly in light of the conclusion that the circumstances in Rwanda ensured Uwinkindi’s right to free legal assistance.
 See The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Motion for Review or Reconsideration of the Decision on Referral to Rwanda and the Related Prosecution Motion, 23 February 2013, para. 71 (recalling that a Referral Chamber must “satisif[y] itself that the State would supply defence counsel to accused who cannot afford their own representation” and is “not obligated […] to itemize the provisions of the [State’s] budget once it has learned there is financial support for that representation”). See also Prosecutor v. Mitar Rašević and Savo Todović, Case No. IT-97-25/1-AR11bis.1 & IT-97-25/1-AR11bis.2, Decision on Savo Todović’s Appeals against Decisions on Referral under Rule 11bis, 4 September 2006, para. 59; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal against Decision on Referral under Rule 11bis, 7 April 2006, para. 70; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005, para. 21.
29. The Appeals Chamber further finds that Uwinkindi fails to establish that the non-inclusion of the charge of complicity in genocide in his ICTR Indictment prohibited its inclusion in his indictment before the Rwandan High Court in view of the res judicata principle. Res judicata arises only when there is an identity of parties, identity of issues, and importantly a final determination of those issues in the previous decision by a court competent to decide them. Notably, the litigation before the ICTR concerning the inclusion of complicity in genocide in Uwinkindi’s indictment did not result in a final determination and the Rwandan Prosecution was not a party to it.
 See Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Decision on a Motion for Redacted Versions of Decisions Issued under Rule 75(H) of the ICTY Rules, 18 July 2016, p. 4 and references cited therein; The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Decision on the Kingdom of Belgium’s Application to File an Amicus Curiae Brief and on the Defence Application to Strike Out the Observations of the Kingdom of Belgium Concerning the Preliminary Response by the Defence, 12 February 2001, para. 11.
 Specifically, Trial Chamber III of the ICTR subsequently confirmed the initial indictment against Uwinkindi but ordered the Prosecution to amend it to clearly indicate what facts could support Uwinkindi’s involvement in the crime of complicity in genocide; the decision did not require the Prosecution to drop the charge. See The Prosecutor v. Jean-Bosco Uwinkindi, Case No. ICTR-2001-75-I, Confirmation of Indictment, 3 September 2001, paras. 7, 9.

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Justia › US Law › Case Law › Federal Courts › Courts of Appeals › Eighth Circuit › 2006 › Ace Property and Casualty Insurance Co. v. Federal Crop Insurance Corp.
COPYRIGHT MATERIAL OMITTED P. John Owen, argued, Overland Park, KS (Michael E. Tucci, Washington, D.C., on the brief), for appellant.
Jane W. Vanneman, Senior Trial Counsel, DOJ, argued, Washington, D.C., for appellee.
Before MURPHY, HANSEN, and SMITH, Circuit Judges.
This breach of contract action was brought by a group of thirteen insurance companies1 who provide federal crop insurance, alleging that the Federal Crop Insurance Corporation (FCIC) breached two provisions of the 1998 Standard Reinsurance Agreement (SRA). The FCIC moved to dismiss for lack of jurisdiction, and the district court granted the motion on that ground, but ruled in the alternative that dismissal was also warranted because the insurers had neither exhausted their administrative remedies nor established any exception to the exhaustion requirement. The insurers appeal, and we affirm on the alternate ground.
The Federal Crop Insurance Act (FCIA), 7 U.S.C. §§ 1501-1524, established a federal crop insurance program in 1938 to be administered and regulated by the FCIC. 7 U.S.C. § 1503. Originally the FCIC directly provided crop insurance coverage to eligible farmers, but in 1980 Congress revised the FCIA to require the FCIC "to contract with private companies" for insurance "to the maximum extent possible." 7 U.S.C. § 1507(c). The FCIC was to "reimburse such companies. . .for [their] administrative and program expenses," id., and provide reinsurance "to the maximum extent practicable" to cover catastrophic loss. 7 U.S.C. §§ 1508(k) (1), 1508(b) (1). The FCIC now offers most federal crop insurance through private insurers which it then reinsures.
The federal reinsurance program is governed by a contract between the FCIC and participating insurance providers entitled Standard Reinsurance Agreement (SRA). 7 C.F.R. § 400.164. The SRA is renewed annually, and a company may terminate the agreement by not submitting a Plan of Operation for the next reinsurance year by the date specified in the SRA. The FCIC may only terminate the SRA by giving notice at least 180 days prior to the date of renewal of its intent to terminate.
At issue between the FCIC and these insurers are two provisions of the 1998 SRA which provide Catastrophic Risk Protection (CAT) coverage. The Administrative Fee provision in the 1998 SRA allowed insurers to retain a portion of the administrative fee charged by the FCIA, and the Loss Adjustment Expenses (LAE) provision permitted insurers to recoup 14% of an imputed premium for each CAT policy provided to a farmer. These provisions were affected by congressional action in 1998. In that year Congress enacted the Agricultural Research Extension and Education Reform Act (AREERA), Pub. L. No. 105-185, 112 Stat. 523 (1998), which eliminated the right of private insurance companies to retain any administrative fees and capped LAE reimbursement at 11%. Then in 2000 Congress enacted the Agricultural Risk Protection Act (ARPA), Pub. L. No. 106-224, 114 Stat. 358 (2000), further lowering the LAE cap to 8%.
The FCIC amended the SRA to implement AREERA and ARPA. Amendment No. 1 was effective at the start of the 1999 fiscal year, and it eliminated the right of private insurers to retain any administrative fees and capped LAE reimbursement at 11%. Amendment No.3 was effective at the start of fiscal year 2000, and it reduced the LAE cap to 8%. When the FCIC notified the insurers of each amendment, it informed them that their SRA would be terminated if they failed to execute either amendment within 10 days of receipt. Appellants all executed the amendments, but they reserved the right to sue the FCIC for damages.
Disputes regarding the SRA are governed by the Federal Crop Insurance Reform and Department of Agriculture Act of 1994, Pub. L. 103-354, 7 U.S.C. §§ 6901-7014 (1994) (Reorganization Act), which created a mandatory administrative appeals process for SRA matters. Under the Reorganization Act, a party who believes that its SRA rights have been violated may request a final agency determination, which can then be appealed to the Department of Agriculture Board of Contract Appeals (the Board). Although the Act grants exclusive jurisdiction to federal district courts, 7 U.S.C. § 1506(d), parties are to exhaust their administrative remedies before pursuing a claim in federal court. 7 U.S.C. § 6912(e).
In February 2003 the insurers brought an action against the United States in the Court of Federal Claims for breach of contract, duress, and unjust enrichment resulting from the implementation of AREERA and ARPA. The government moved to dismiss, arguing that under § 6912(e) exhaustion of administrative remedies was a prerequisite to subject matter jurisdiction, and alternatively that § 1506(d) required complaints to be filed in federal district court. The insurers responded that neither § 1506(d) nor the exhaustion requirements contained in the SRA were binding; they did not directly address § 6912(e) because their suit was against the United States rather than the FCIC. In March 2004 the Court of Federal Claims dismissed the action for lack of jurisdiction under § 6912(e) because the insurers had not exhausted their administrative remedies, and alternatively because § 1506(d) grants federal district courts exclusive jurisdiction over suits against the FCIC. Ace Property & Cas. Ins. Co. v. United States, 60 Fed. Cl. 175, 184-85 (Fed. Cl. 2004). Its decision was affirmed by the Federal Circuit on June 1, 2005, on the ground that the case had been properly dismissed since § 1506(d) provides for exclusive jurisdiction in the federal district courts and that there was therefore "no reason to revisit [the court's] superfluous finding regarding exhaustion of administrative remedies." Ace Property & Cas. Ins. Co. v. United States, 138 Fed.Appx. 308, 309 (Fed. Cir. 2005).
After the Federal Circuit's decision, the insurers sought a final administrative determination from the FCIC. The FCIC declined because their request had not been made within 45 days after notice of the disputed action. See 7 C.F.R. § 400.169(a). The insurers then appealed to the Board, which did not issue its decision until shortly before oral argument on the appeal in this court.
While their appeal was still pending before the Federal Circuit, the insurers filed this action against the FCIC in the Southern District of Iowa seeking damages for the breach of the 1998 SRA. The FCIC moved to dismiss, arguing that the district court lacked subject matter jurisdiction under § 6912(e) because appellants had failed to exhaust their administrative remedies. The insurers responded that the statute did not deprive the federal district court of jurisdiction and that exhaustion should not be required because it would be futile since neither the FCIC nor the Board has the authority to award the relief sought and the issues involved are legal questions better resolved by courts than agencies. The district court dismissed their complaint in February 2005, holding that it had no jurisdiction over the dispute because the insurers had not exhausted their administrative remedies as required by § 6912(e). Alternatively the court held that even if it had jurisdiction, their failure to exhaust was not excused under the traditional exceptions. The insurers now appeal, arguing that § 6912(e) is not a jurisdictional statute and that exhaustion is not required because in this case it would be futile and because the complaint raises only legal issues unsuitable for administrative resolution.
Subsequently on December 21, 2005, the Board rendered its decision on the insurers' administrative appeal. Ace Property & Cas. Ins. Co., AGBCA No.2004-173-F, 2005 WL 3485623 (December 21, 2005). The Board found that it had jurisdiction over the dispute and possessed the authority to issue whatever relief might be necessary to remedy any breach of contract, including the power to award money damages. It also gave examples of instances in the past where it had awarded such relief. Although it upheld the 45 day rule for bringing administrative claims, it decided that the rule should not have been applied retroactively. Thus it affirmed the agency determination that the insurers' claims for the 2001 and 2002 reinsurance years were time barred for failing to bring them within 45 days of notice of the disputed action, but it remanded the claims for the 1999 and 2000 reinsurance years for further administrative proceedings.
On their appeal from the dismissal of their action, the insurers complain that the district court erred in concluding that exhaustion of administrative remedies was a prerequisite to subject matter jurisdiction. The FCIC responds that the language of § 6912(e) is jurisdictional when considered within the context of the statutory scheme so appellants' failure to exhaust administrative remedies means there is no subject matter jurisdiction over this action.
The Supreme Court has indicated that a statute requiring plaintiffs to exhaust administrative remedies before coming into federal court may be either jurisdictional in nature or non jurisdictional, depending on the intent of Congress as evinced by the language used. See Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975). Under a jurisdictional statute, exhaustion of administrative remedies cannot be excused or waived and the failure by a party to exhaust is a jurisdictional bar. In contrast, a non jurisdictional statute codifies the common law exhaustion principle under which exhaustion of administrative remedies is favored, but may be excused by a limited number of exceptions to the general rule. Id. at 765-66, 95 S. Ct. 2457.
In Salfi, the Court addressed an appeal dealing with § 405(h) and § 405(g) of the Social Security Act. The Court first considered the third sentence of § 405(h), which provides that " [n]o action ... shall be brought under section 1331 ... of Title 28 to recover on any claim arising under this subchapter." 42 U.S.C. § 405(h). Since the language used by Congress was "more than a codified requirement of administrative exhaustion" and was "sweeping and direct," the district court had lacked federal question jurisdiction over the case before it. Salfi, 422 U.S. at 757, 95 S. Ct. 2457. The Court then discussed § 405(g), which provides in pertinent part that " [a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party ... may obtain a review ... by a civil action . . ." 42 U.S.C. § 405(g). The Court concluded that the term "final decision" was "a statutorily specified jurisdictional prerequisite" and "something more than simply a codification of the judicially developed doctrine of exhaustion." The district court had therefore erred by concluding that futility could excuse the need to exhaust. Salfi, 422 U.S. at 766, 95 S. Ct. 2457.
Under Salfi the language of a statute must be "sweeping and direct" for it to be considered jurisdictional. Id. 422 U.S. at 757, 95 S. Ct. 2457. The language must indicate either that "there is no federal jurisdiction prior to exhaustion" or that exhaustion is "an element of the underlying claim." Chelette v. Harris, 229 F.3d 684, 687 (8th Cir. 2000). Exhaustion is presumed to be non jurisdictional "unless Congress states in clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision." Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004) (internal citations omitted). We review de novo the district court's interpretation of § 6912(e). Alpharma, Inc. v. Pennfield Oil Co., 411 F.3d 934, 937 (8th Cir. 2005).
[n]otwithstanding any other provision of law, a person shall exhaust all administrative appeal procedures established by the Secretary or required by law before the person may bring an action in a court of competent jurisdiction2 against (1) the Secretary; (2) the Department; or (3) an agency, office, officer, or employee of the Department.
Other circuits that have addressed the issue are split. In McBride Cotton & Cattle Corp. v. Veneman, the Ninth Circuit held that "the exhaustion requirement of § 6912(e) is not jurisdictional" because it contains no language expressly conditioning federal question jurisdiction on exhaustion of administrative remedies. 290 F.3d 973, 976 (9th Cir. 2002). In contrast, the Second Circuit in Bastek v. Fed. Crop Ins. Corp., held that "the statutory provision mandating exhaustion in 7 U.S.C. § 6912(e) is explicit" and the plaintiffs' failure to exhaust administrative remedies "deprived them of the opportunity to obtain relief in the district court." 145 F.3d 90, 94-95 (2d Cir. 1998). The lower courts are also split as to whether § 6912(e) is jurisdictional. Compare Kuster v. Veneman, 226 F. Supp. 2d 1190, 1192 (D.N.D. 2002) (implicitly finding § 6912(e) non jurisdictional); Rain & Hail Ins. Service, Inc. v. Fed. Crop Ins. Corp., 229 F. Supp. 2d 710, 714 (S.D.Tx.2002) (same); In re Cottrell, 213 B.R. 33, 37 (M.D. Ala. 1997) (rejecting the claim that § 6912(e) is jurisdictional)3 with In re 2000 Sugar Beet Crop Ins. Litig., 228 F. Supp. 2d 999, 1004 (D. Minn. 2002) (explicitly finding § 6912(e) to be jurisdictional); Am. Growers Ins. Co. v. FCIC, 210 F. Supp. 2d 1088, 1092-93 (S.D. Iowa 2002) (implies § 6912(e) is jurisdictional); Gilmer-Glenville, Ltd. P'ship v. Farmers Home Admin., 102 F. Supp. 2d 791, 794 (N.D. Ohio 2000) (same); Utah Shared Access Alliance v. Wagner, 98 F. Supp. 2d 1323, 1333 (D. Utah 2000) (failure to exhaust remedies deprives court of subject matter jurisdiction).
We begin our inquiry with the language of § 6912(e). See United States v. Mickelson, 433 F.3d 1050, 1052 (8th Cir. 2006). Although the language requires exhaustion, nothing in the text indicates that exhaustion was intended as a jurisdictional bar and the FCIC has not pointed to any legislative history evidencing such an intent. Section 6912(e) is directed at "a person" and provides that the person shall exhaust administrative remedies before bringing an action in federal district court against the FCIC. There is no language directed at courts or limiting federal district court jurisdiction.
Our court has examined similar language in the Prison Litigation Reform Act (PLRA) and held that it "does not contain the sort of `sweeping and direct' language necessary to impose a jurisdictional requirement," but only "governs the timing of the action." Chelette, 229 F.3d at 686-87 (internal citations omitted). Section 1997e(a) of the PLRA provides that " [n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added). Every circuit which has considered whether § 1997e(a) is jurisdictional in nature has concluded that it is not. See Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 677 (4th Cir. 2005); Richardson v. Goord, 347 F.3d 431, 433-34 (2d Cir. 2003); Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1206 (10th Cir. 2003); Ali v. Dist. of Columbia, 278 F.3d 1, 5-6 (D.C. Cir. 2002); Casanova v. Dubois, 289 F.3d 142, 147 (1st Cir. 2002); Wright v. Hollingsworth, 260 F.3d 357, 358 n. 2 (5th Cir. 2001); Curry v. Scott, 249 F.3d 493, 501 n. 2 (6th Cir. 2001); Nyhuis v. Reno, 204 F.3d 65, 69 n. 4 (3d Cir. 2000); Rumbles v. Hill, 182 F.3d 1064, 1067-68 (9th Cir. 1999); Massey v. Helman, 196 F.3d 727, 732 (7th Cir. 1999).
The language used by Congress in the Immigration and Nationality Act (INA) provides a useful contrast. In § 242 of the INA, Congress provided that "a court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d) (1) (emphasis added). Here, the exhaustion requirement explicitly limits subject matter jurisdiction, and § 1252(d) (1) has consistently been treated as a jurisdictional statute and an integral part of the statute. See Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004); Theodoropoulos v. I.N.S., 358 F.3d 162, 169-72 (2d Cir. 2004); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003); Fernandez-Bernal v. Attorney General of the United States, 257 F.3d 1304, 1317 n. 13 (11th Cir. 2001); Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999); Witter v. I.N.S., 113 F.3d 549, 554 (5th Cir. 1997).
The language in § 6912(e) of the Reorganization Act resembles that used in the PLRA. Its directive is addressed to the individual litigant rather than the court, and it pertains to the time when an action may be brought in federal district court. Like the language of the PLRA and in contrast to the language of the INA and the Social Security Act, " [n]othing in § 6912(e) mentions, defines or limits federal jurisdiction," McBride, 290 F.3d at 980, and its language cannot be considered "sweeping and direct" under Salfi.
The FCIC contends that appellants reliance on Chelette, and its interpretation of PLRA § 1997e(a), is misplaced due to the Supreme Court's intervening decision in Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001). In Booth the Court dismissed a prisoner's § 1983 action for failure to exhaust administrative remedies, but it did not consider whether § 1997e(a) was jurisdictional or not. Its decision turned instead on its interpretation of "available remedies" under § 1997e(a). Id. at 736, 121 S. Ct. 1819. Moreover, all circuits which have ruled on the jurisdictional issue since Booth have continued to treat § 1997e(a) as non jurisdictional. See Anderson, 407 F.3d at 677; Richardson, 347 F.3d at 433-34; Steele, 355 F.3d at 1206; Ali, 278 F.3d at 5-6.
The FCIC's reliance on the Second Circuit's decision in Bastek is also not persuasive. Bastek concluded that exhaustion of administrative remedies was a statutory mandate under § 6912(e) precluding the normal exercise of judicial discretion in balancing the individual interest in access to a federal judicial forum against the institutional interests favoring exhaustion. Bastek, 145 F.3d. at 94. As the Ninth Circuit has pointed out, however, "not all statutory exhaustion requirements are created equal. Only statutory exhaustion requirements containing `sweeping and direct' language deprive a federal court of jurisdiction." McBride, 290 F.3d at 980 (citing Anderson v. Babbitt, 230 F.3d 1158, 1162 (9th Cir. 2000); Rumbles, 182 F.3d 1067); see also Cottrell, 213 B.R. 33 (exhaustion of administrative remedies not a jurisdictional prerequisite to court consideration of Chapter 13 debtor's claim even though exhaustion required by statute). In Bastek the court did not address whether the language of § 6912(e) was sweeping and direct, but merely stated that § 6912(e) was "explicit." However, the language in § 6912(e) is no more explicit than that in § 1997e(a) of the PLRA which no circuit considers jurisdictional. A contrary interpretation would make virtually all statutory exhaustion provisions jurisdictional, regardless of whether they contain sweeping and direct jurisdictional language. Such a rule cannot be squared with the Supreme Court's decision in Salfi.
After reviewing the cases and comparing § 6912(e) to other statutes we conclude that § 6912(e) is nothing more than "a codified requirement of administrative exhaustion" and is thus not jurisdictional. Salfi, 422 U.S. at 757, 95 S. Ct. 2457; see also McBride, 290 F.3d at 980. Section 6912(e) was promulgated in 1994, almost twenty years after the Supreme Court's decision in Salfi distinguishing between jurisdictional and non jurisdictional exhaustion. Had Congress intended to limit subject matter jurisdiction by § 6912(e), it could have done so with explicit language as it has in other statutes. See, e.g., 8 U.S.C. § 1252(d) (1). To now interpret § 6912(e) as jurisdictional "would collapse the Supreme Court's distinction between jurisdictional prerequisites and mere codifications of administrative exhaustion requirements," Chelette, 229 F.3d at 687, and would run counter to our prior interpretation of similar statutes such as the PLRA.4 Since we conclude that the district court did have subject matter jurisdiction over this case, we must consider its alternative reason for dismissing the insurers' complaint.
Appellants argue that the district court also erred by its ruling on the alternative ground that the insurers had not exhausted their administrative remedies. Appellants contend that exhaustion is not required since it would be futile because administrative remedies cannot redress their injuries and because their complaint presents legal questions which are best resolved by the courts. The FCIC responds that appellants do not qualify for the limited exceptions to the exhaustion doctrine. It contends that the Deputy Administrator of the FCIC and the Board can consider their claims, the Board can award appropriate monetary relief, and that the agency should have been allowed the opportunity to create an adequate administrative record for review before any complaint was filed in the district court. Because appellants have challenged the agency action, they bear the burden of proving that exhaustion should be excused under their proffered theories. In Home Health, Inc. v. Shalala, 272 F.3d 554, 559-61 (8th Cir. 2001). We review the district court's decision on exhaustion de novo. Kinkead v. Southwestern Bell Corp. Sickness & Accident Disability Benefit Plan, 111 F.3d 67, 68 (8th Cir. 1997).
A party may be excused from exhausting administrative remedies if the complaint involves a legitimate constitutional claim, if exhaustion would cause irreparable harm, if further administrative procedures would be futile, In Home Health, 272 F.3d at 560, or if the issues to be decided are primarily legal rather than factual. Missouri v. Bowen, 813 F.2d 864, 871 (8th Cir. 1987). The insurers claim that both the futility and legal issue exceptions apply, and we address each in turn.
[e]ach agency board shall have jurisdiction to decide any appeal from a decision of a contracting officer (1) relative to a contract made by its agency, and (2) relative to a contract made by any other agency when such agency or the Administrator has designated the agency board to decide the appeal. In exercising this jurisdiction, the agency board is authorized to grant any relief that would be available to a litigant asserting a contract claim in the United States Court of Federal Claims.
Appellants argue that because the CDA only covers procurement contracts, 7 C.F.R. § 24.4 (defining contract under the CDA); Coastal Corp. v. United States, 713 F.2d 728, 730 (Fed. Cir. 1983), the Board, lacks jurisdiction because the SRA is not a procurement contract.
Appellants overlook 7 C.F.R. § 400.169, which provides that "final administrative determinations of the [FCIC] ... may be appealed to the [Board]" if "the company believes that the [FCIC] has taken an action that is not in accordance with the provisions of the Standard Reinsurance Agreement." Because the implementation of AREERA and ARPA can affect the legal rights of appellants under the SRA, complaints over implementation are properly considered by the Board under 7 C.F.R. § 400.169. See Nat'l Crop. Ins. Services, Inc. v. Fed. Crop Ins. Corp., 351 F.3d 346 (8th Cir. 2003); Ace Property, AGBCA No.2004-173-F, 2005 WL 3485623. Moreover, Section V of the 1998 SRA provided that an insurer could bring disputes before the Board under 7 C.F.R. § 400.169. While the Board could not decide the legality of the regulations in issue, interpreting the contractual language of the SRA is well within its purview.
Appellants also claim that the Board cannot award damages. Even though the FCIC was required by Congress to implement AREERA and ARPA and thus breach the SRA, it does not follow that the Board cannot award damages for the breach. See United States v. Winstar Corp., 518 U.S. 839, 843, 116 S. Ct. 2432, 135 L. Ed. 2d 964 (1996). "On matters involving disputes over interpreting, explaining, or restricting the terms of the [SRA], the [Board also] has [the] authority and has authorized [the] award of monetary damages." Ace Property & Cas. Ins. Co., AGBCA No.2004-173-F thru 2004-184-F, 2005 WL 3485623 (December 21, 2005). " [W]hile FCIC was required to comply with the congressional mandate, nothing in that congressional action barred FCIC from paying or being responsible for breach damages caused by that compliance." Id. Because the Board has jurisdiction over the dispute and the power to award monetary relief, we conclude that appellants have not demonstrated that their administrative remedies would be futile.
Appellants finally argue that their failure to exhaust should be excused because the issues involved on this appeal are legal questions which are not suitable for administrative resolution and are more properly resolved by the courts. The FCIC responds that while some of the issues to be determined involve factual questions, they are more properly considered legal questions which should be left to the expertise of the FCIC and the Board.
The legal issues exception is extremely narrow and should only be invoked if the issues involved are ones in which the agency has no expertise or which call for factual determinations. Jewel Companies, Inc. v. Fed. Trade Comm'n, 432 F.2d 1155, 1159 (7th Cir. 1970). The district court identified several facts which may remain in dispute, such as whether the SRA was a continuous contract with unvariable terms or a renewable contract whose terms will vary from year to year; what type of consideration was given; and whether the parties were under duress when they accepted Amendments No. 1 and 3. Ace Property, 357 F. Supp. 2d at 1151. Even though some of the issues involved are admittedly legal in nature, that does not necessarily mean they are questions that should excuse exhaustion.
The purpose of exhaustion is to prevent "premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the court the benefit of its experience, and to complete a record which is adequate for judicial review." Salfi, 422 U.S. at 765, 95 S. Ct. 2457; see also West v. Bergland, 611 F.2d 710, 715 (8th Cir. 1979). Those goals would not be advanced if the administrative process was not completed here. The statutory scheme gives the FCIC and the Board special responsibility in respect to the proper application and interpretation of the SRAs. The administrative process is apparently moving forward successfully, see Ace Property, AGBCA No.2004-173-F thru 2004-184-F, 2005 WL 3485623, and exercising jurisdiction at this stage would not allow the expertise of the FCIC and Board to develop a full administrative record for the benefit of any future judicial review. We conclude that appellants have not established any exception to the requirement that they exhaust their administrative remedies.
Accordingly, we affirm the judgment of the district court on the ground that none of the exceptions to the exhaustion doctrine excuse appellants' failure to exhaust their administrative remedies.
There are also unreported decisions which have explicitly held that § 6912(e) is non jurisdictional See Farmers Alliance Mut. Ins. Co. v. Fed. Crop Ins. Corp., 2001 WL 30443, at *2 (D. Kan. 2001) ("Section 6912(e) contains no sweeping and direct language barring federal question jurisdiction absent exhaustion of administrative remedies."); Pringle v. United States, 1998 U.S. Dist. Lexis 19378, at * 14-15 (E.D. Mich. 1998).
Other statutes that require exhaustion but which have been held to be non jurisdictional include § 7806 of the Hass Avocado Promotion, Research, and Information Act, 7 U.S.C. §§ 7801-7813,Avocados, 370 F.3d at 1248; and §§ 405(g)-(h) of the Social Security Act, Salfi, 422 U.S. at 757, 766, 95 S. Ct. 2457. See also Anderson, 230 F.3d at 1162 (holding that 43 C.F.R. § 4.21(c), which requires exhaustion before appeals from decisions of the Interior Board of Indian Appeals is non jurisdictional).


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2001 to Present – Kevin J. Doherty & Associates Inc. – President of an elevator consulting firm specializing in elevator safety code compliance and litigation.
1994 to Present – New Jersey Licensed Elevator Safety Code Enforcement Administrator & Inspector – I oversee the administration and safety code compliance of approximately 800 public elevators in various New Jersey municipalities. My responsibilities include the inspection of both older and newer elevators equipped with the most current elevator industry technologies.
1980 to 1994 – I.B.E.W. Local Number 3 Certified Elevator/Escalator Journeyman Mechanic – Repaired, maintained, and modernized high-rise cable and low rise hydraulic elevators, as well as various types of escalators in the New York City metropolitan area.
2016 – The Estate of Daryl Gordon, Cincinnati, OH – Represented Plaintiff’s estate. Case involved the death of a Cincinnati firefighter who fell four floors to his death as a result of a defective hoistway door interlock system. Case settled prior to filing in an amount exceeding four million dollars.
2016 – Harland M. Lewis v. OTIS Elevator Company, Tuscumbia, AL – Represented Plaintiff. Plaintiff was struck on the head when vertically closing car door gate struck his head without warning causing severe injuries. Case settled prior to trial.
2016 – Gloria Roller vs. Guggenheim Real Estate DBA Heights of Collingswood Apartments, Greystar Real Estate Management, KONE Corp, Collingswood, NJ – Represented Plaintiff. Plaintiff was injured as a result of a malfunctioning elevator that caused her to be thrown about the elevator cab for twenty minutes resulting in serious injuries. Case settled prior to trial.
2016 - Roger Cornell v. River City Properties LLC, Huntington, WV – Represented Plaintiff. Plaintiff was injured as a result of a hoistway door locking system malfunction. Plaintiff was severely injured when a defective hoistway door opened and he fell fifteen feet into the elevator pit. Case settled prior to trial.
2016 – Monroe v. Jones Lang Lasalle Americas, Inc., Richmond, VA – Represented Plaintiff. Plaintiff was injured when the elevator she was entering unexpectedly moved up several inches above the floor level, causing her foot to become wedged between the landing floor and elevator floor. She fell forward and suffered severe injuries. Case settled prior to trial.
2016 – Faldudi v. Saint Barnabus Medical Facility, Livingston, NJ – Represented Plaintiff. Plaintiff was injured when the subject elevator arrived at the hall landing and was un-level with the landing floor. Plaintiff fell as a result and suffered severe injuries. Case settled prior to trial.
2015 – BCIA v. BRMC L.P., et al, Paramus, NJ – Represented Plaintiff. Plaintiff is a local governmental entity tasked with capital improvements of a publicly owned hospital campus. The Plaintiff alleged fraudulent billing for work performed by an elevator contractor that provided services in the past. Case settled prior to trial.
2015 – Vazquez v. Temple University of the Commonwealth System of Higher Education & OTIS Elevator Company, Philadelphia, PA – Represented Plaintiff. Plaintiff was exiting an elevator when it moved unexpectedly and became un-level with the floor, causing her to trip and fall, suffering injuries. Case settled prior to trial.
2015 – Kennedy v. KONE, Inc., The Government of The Virgin Islands through The Roy Lester Schneider Hospital, St. Thomas, VI – Represented Plaintiff. Plaintiff was injured when she stepped onto the subject elevator. With the car and hoistway doors still open, the elevator descended in an uncontrolled manner, coming to an abrupt stop at the bottom of the elevator hoistway causing multiple injuries. Case settled prior to trial.
2015 – People of the State of New York v. Jason Jordan, Brooklyn, NY – Represented the People of the State of New York. Case involved the severe and permanent injury of an elevator passenger. Working with the Kings County District Attorney’s Office, I conducted a full forensic investigation of the incident. As a result of the testimony I provided over two and a half days, in 2011, a grand jury passed down a five-count felony indictment against the elevator mechanic that had caused the incident. In 2014, the case went to trial, and I provided testimony in connection with the case. As a result, the plaintiff was convicted of 2nd degree (reckless) assault.
2015 – Nationwide Mutual Fire Insurance Company v. Ross Elevator Inc., Parma, OH – Represented Plaintiff. Case involved a fire in an elevator machine room. Leaking hydraulic components directly led to the machine room fire. Case was settled prior to trial.
2014 – Austin v. Tilden Garden, OTIS Elevator, et al., Washington, DC – Represented plaintiff. Plaintiff was injured on an elevator that had an improperly installed electric eye in combination with a “scissor”-type collapsible car gate. Case settled prior to trial.
2013 – Tomoni Shigeta (and her guardian Yukie Shigeta) v. Washington Shoe Company, Bay Area Rapid Transit District, San Francisco, CA – Represented Plaintiff. Case involved the entrapment of a child’s “Crocs” brand footwear between the moving escalator step and the stationary skirt panel that resulted in severe injuries to her foot. Case went to trial and resulted in a deadlocked jury.
2013 – Rotondo v. Luna Park Housing Corp., Brooklyn, NY – Represented Defendant. A defective elevator caused the elevator car door to strike and injure plaintiff. Case concluded prior to trial.
2013 – Reed v. Nouveau Elevator Industries Inc. and OTIS Elevator Inc., Port Jefferson, NY – Represented Plaintiff. Plaintiff entered the subject elevator. The elevator began descending at full speed and suddenly came to an abrupt stop causing the plaintiff to fall and suffer injuries. Case was settled prior to trial.
2013 – Smith v. OTIS Elevator, Winston-Salem, NC – Represented plaintiff. Plaintiff suffered injuries when an elevator came to an abrupt stop while traveling at high speed in the down direction. Case settled prior to trial.
2013 – Foster v. ThyssenKrupp Elevator Americas Corp, et al., Dover, DE – Represented plaintiff. Plaintiff suffered injuries from a trip and fall that occurred when an elevator unexpectedly re-leveled with the doors open. Case settled prior to trial.
2012 – Bowes v. City of Santa Fe, KONE Inc., et als., Santa Fe, NM – Represented plaintiff. Plaintiff suffered injuries when an elevator came to an abrupt stop while traveling at high speed in the down direction. Case settled prior to trial.
2012 – Abdelbaky v. Merit US Real Estate Fund III LP & CB Richard Ellis, Jersey City, NJ – Represented plaintiff. Plaintiff suffered injuries when an elevator came to an abrupt stop while traveling at high speed in the down direction. Case settled prior to trial.
2012 – Dudley v. Port Authority of New York and New Jersey, and AVCO Avports Management, LLC, Newark, NJ – Represented Plaintiff. While entering the subject elevator, the elevator car doors closed on the Plaintiff at high speed causing injuries to her shoulder and arm. Case was settled prior to trial.
2010 – Didier v. Value Place, LLC et al., Fayetteville, NC – Represented plaintiff. Case involved a passenger that was injured as a result of an improperly installed elevator handrail. The elevator handrail was fastened under tension. The handrail became unfastened and sprang out suddenly, striking the Plaintiff and causing injury. Case settled prior to trial.
2011 – Palisades Interstate Park Commission (PIPC) – Bear Mountain Inn, Bear Mountain, NY – Consulted on removal of 1915 vintage cable-type elevator and installation of new hydraulic elevator in original hoistway.
2009 – Rutgers University of Medicine and Dentistry of NJ. (UMDNJ) – Perform forensic evaluation of all site elevators in response to abnormally high rate of passenger entrapments. Our recommendations enacted by UMDNJ led to significant reduction in entrapments and shutdowns.
2007 – Province of British Columbia – Evaluated feasibility of proposed elevator self-certification & safety inspection program. Provided report of findings to British Columbia Safety Authority (BCSA).
Vetting of all “KONE Replacement Techs” and advising the GSA which individuals were qualified to continue working on–site.
Attend meetings with KONE management on GSA’s behalf.
Develop and Oversee a Preventative Maintenance Program.
Determine validity of documented repairs.
1992 to Present – New Jersey Department of Community Affairs – Certified attendance at 33 eight hour professional seminars.

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Full Case Name: Matter of CLINTON COUNTY. Estate of Gerald Guay, Deceased.
Summary: Synopsis from the court: County filed notice of claim, directed toward estate of cattle farmer who had passed away after he was charged with animal cruelty, seeking reimbursement for costs incurred in connection with care of seized cattle. The Surrogate's Court, Clinton County, Timothy J. Lawliss, J., held that: (1 ) county failed to establish that it was entitled to any relief based upon a theory of quantum meruit, and (2) even assuming that service providers, and thus county upon payment of service providers' bills, enriched farmer, county was not entitled to recover based upon a theory of unjust enrichment because criminal charges against farmer were dismissed upon his death. Notice of claim denied and dismissed.
*1 On February 14, 2014, the Clinton County Sheriff's Department [hereinafter “the County”] received a call of possible dead and downed cattle at 557 Rapids Road, Champlain, New York [hereinafter “the Guay Farm”]. Between February 14, 2014 and February 28, 2014, County officers visited the Guay Farm on multiple occasions in conjunction with the original complaint. On February 28, 2014, the Guay Farm's owner, Gerald Guay was arrested and charged with 39 counts of Animal Cruelty (Agriculture and Markets Law § 353) and the County seized the Guay Farm cattle pursuant to a search warrant.
From the time that the cattle were seized until June 29, 2014, the County kept the cattle at Maple Shade Farm. The County paid Maple Shade Farm $15,885.74 for their care of the seized cattle. From the time the County began its investigation through June 29, 2014, the County paid Palmer Veterinary Clinic $953.07 to provide veterinary services for the cattle.
On June 29, 2014 the seized cattle were sold and the proceeds of the sale were given to Mr. Guay's sister, Julie. Two days later, on July 1, 2014, Mr. Guay passed away. The aforementioned criminal charges were still pending at the time of Gerald Guay's death and therefore, were dismissed. See, People v. Carey, 124 A.D.3d 982 [3 Dept 2015].
By Decree Granting Administration, dated May 15, 2015, the Clinton County Surrogate's Court [J. Ryan] ordered that Letters of Administration be issued to Tyler Guay and Katie Guay for the Estate of Gerald Guay [hereinafter “the Estate”]. On June 30, 2015, the County filed a Notice of Claim (hereinafter “the Claim”) with the Surrogate's Court of the State of New York, Clinton County, directed towards the Estate, for services paid for by the County and rendered by Maple Shade Farm and Palmer Veterinary Clinic. In support of the Claim, the County submitted (1) the Affirmation of James J. Coffey, Esq., dated June 8, 2016 with the following attachments: a copy of the Decree Granting Administration dated May 15, 2015 [J. Ryan]; Letters of Administration dated May 15, 2015; Notice of Claim dated June 29, 2015, Statements from the service providers, and, the Affidavit of the Clinton County Sheriff David Favro dated June 21, 2015 with attachments. In response to the Claim, the Estate filed an Answer dated June 27, 2016. The County filed a Reply Affidavit on July 11, 2016.
On January 19, 2017, the Court conducted an evidentiary hearing on the Claim, and thereafter, the Court reviewed the County's Memorandum of Law dated March 30, 2017 and the Estate's Memorandum of Law dated April 10, 2017.
The first legal theory is quantum meruit. “A party may recover the value of work, labor or services in an action for quantum meruit, which means ‘as much as deserved.’ “ “Such an action is premised upon the finding of an implied rather than an express promise by the defendant to pay the plaintiff as much as reasonably deserved.” “The doctrine of quantum meruit is used as a device for the prevention of unjust enrichment of one party at the expense of another in the absence of a valid contract on which liability may be based.” 22A N.Y.Jur.2d Contracts § 609 (§ 609, Quantum meruit, unjust enrichment). County's Memorandum of Law at 3.
The second legal theory upon which Petitioner's claim is based is that of quasi-contract. “In the case of a contract implied in law rather than implied in fact, there is no actual contract imposing the obligation-the obligation does not rest on consent of the parties or their intent to form an agreement. It is an obligation that the law creates in the absence of any agreement and is based upon equity and good conscience in order to prevent unjust enrichment of one party at the expense of another.” 22A N.Y.Jur.2d Contracts § 607 (§ 607, Contracts implied in law; quasi-contracts). Id. at 4, 997 N.Y.S.2d 920.
... while the County lists “quantum meruit” and “quasi contract/unjust enrichment” as its two theories of recovery, these are not truly distinct and separate cause of action. Quantum meruit and unjust enrichment are both terms used to advance a quasi-contract cause of action when no express agreement exists between a plaintiff and defendant, but the plaintiff has provided some services of benefit to the defendant, and the defendant would be unjustly enriched if the court did not intervene with an equitable award of damages to the plaintiff. See Seiden Assocs., Inc. v. ANC Holdings, Inc., 768 F.Supp. 89, 96 (S.D.N.Y.1991) (explaining that “quantum meruit and unjust enrichment are not separate causes of action,” and that “unjust enrichment is a required element for an implied-in-law, or quasi contract, and quantum meruit, meaning ‘as much as he deserves,’ is one measure of liability for the breach of such a contract”), rev'd on other grounds, 959 F.2d 425 (2d Cir.1992); Leibowitz v. Cornell Univ., 584 F.3d 487, 509 (2d Cir.2009) (“[A]pplying New York law, we may analyze quantum meruit and unjust enrichment together as a single quasi contract claim”). Estate's Memorandum of Law at 3–4.
New York law recognizes several quasi-contractual remedies, including quantum meruit and unjust enrichment. As argued by the Estate, quantum meruit and unjust enrichment can prove to be essentially identical claims depending upon the context of the matter. See, Snyder v. Bronfman, 13 N.Y.3d 504 . In the instant matter, the Court will address them separately.
The elements of quantum meruit are as follows: (1) the Plaintiff's performance of services in good faith; (2) acceptance of those services by the other party; and (3) an expectation of compensation and proof of the reasonable value of services. See, Hyman v. Burgess, 125 A.D.3d 1213 [3 Dept 2015] and DerOhannesian v. City of Albany, 110 A.D.3d 1288 [3 Dept 2013]. In this action, the element of acceptance is fatal to the County's quantum meruit argument. Under no reading of the record can the Court find that Mr. Guay ever voluntarily accepted the actions taken by either the County or the service providers, whose actions were performed at the request of the County. Accordingly, the County failed to establish it is entitled to any relief based upon a theory of quantum meruit.
*3 The elements of unjust enrichment are as follows: (1) another party was enriched; (2) at the plaintiff's expense; and (3) “that it is against equity and good conscience to permit the other party to retain what is sought to be recovered.” Georgia Malone & Co. v. Reider, 19 N.Y.3d 511 . For purposes of addressing the County's claim of unjust enrichment, the Court assumes, without finding, that the srvice providers, and thus the County upon payment of the service providers' bills, enriched Mr. Guay. Had Mr. Guay been convicted of animal cruelty, it would be against equity and good conscience to permit Mr. Guay (and, therefore, the Estate) to retain his enrichment at the County's expense.
It would be directly contrary to the Agriculture and Markets Law to require the Estate to reimburse the County for its expenses when the statutory provisions specifically provide that the Estate is entitled to a refund of any amounts expended for the benefit of the seized animals, which were previously allowed by the Court, upon the dismissal of the charges.
As a part of the relief requested in the complaint, plaintiff seeks reimbursement of $61,000.00 expended to board and care for the horses. Ordinarily, the Court would be of the view that the entity which provided board and care for animals should be entitled to reimbursement of the reasonable costs of same on the theory of quasi contract, inasmuch as “but for” the seizure of the animals, the owner would have had to bear this expense. As set forth above, however, where an owner is required to post security for payment of such expenses, and where the owner is ultimately acquitted of the charges, the owner is entitled to a full refund of the security posed, including amounts allowed by the Court to be expended (see Agriculture and Markets Law § 373 [c] ). It appears that in the event of acquittal of the charges, the State Legislature did not intend that the temporary custodian of the horses be reimbursed by the owner for board and care of the animals. Under the circumstances, the Court finds that the claim for reimbursement fails to state a cause of action.
Thus, although the elements of an unjust enrichment claim may have been met had there been a conviction, Mr. Guay's presumption of innocence survives his death and thus, upon the abatement of the criminal charges, the Claim fails for reasons set forth above.
*4 The County raises no additional theories under which this Court should grant the Claim.
ORDERED, that the County's Notice of Claim filed on June 30, 2015 is hereby DENIED and DISMISSED in all respects.


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Опубликовал более 250 научных работ, изданы 3 монографии, 12 учебно-методических пособий, в том числе курс лекций и учебное пособие с грифом Министерства образования Республики Беларусь.
– Борздов В.М., Комаров Ф.Ф. Моделирование электрофизических свойств твердотельных слоистых структур интегральной электроники. Мн: БГУ, 1999. 235 с.
– Борздов В.М., Жевняк О.Г., Комаров Ф.Ф., Галенчик В.О. Моделирование методом Монте-Карло приборных структур интегральной электроники. Мн: БГУ, 2007. 175 с.
– Orlikovsky A., Vyurkov V., Semenikhin I., Borzdov V. Quantum Noise in Nanotransistors // Functional Nanomaterials and Devices for Electronics, Sensors and Energy Harvesting; eds. A. Nazarov, F. Balestra, V. Kilchytska, D. Flandre. – Springer, Cham, 2014. – P. 151–162.
– Борздов В.М. Основы радиоэлектроники. Курс лекций. Минск: БГУ, 2002. 196 с.
– Борздов В.М., Новик Г.М., Сетун А.Н. Основы радиоэлектроники. Лабораторный практикум. Минск: БГУ, 2002. 116 с.
– Борздов В.М., Молофеев В.М., Сетун А.Н.. Физика отказов полупроводниковых приборов и интегральных схем: учебное пособие. – Минск : БГУ, 2015. – 155 с.
– Борздов В.М., Жевняк О.Г., Сетун А.Н. Основы радиоэлектроники. Лабораторный практикум. Минск: БГУ, 2010. 151 с.
– Борздов В.М., Новик Г.М., Сетун А.Н. Элементая база электроники. Лабораторный практикум. Минск: БГУ, 2005. 93 с.
– Андреев А.Д., Борздов В.М. Валиев А.А., Дитковский В.М., Жевняк О.Г. Методические указания к лабораторным работам по курсу “Физика МДП-структур”. Минск: БГУ, 1996. 33 с.
– Борздов В. М., Лабуда А.А., Новик Г.М., Сетун А.Н. Полупроводниковая электроника. Лабораторный практикум. Ч.2. Минск: БГУ, 2000. 50 с.
– Vrubel M.M., Borzdov V.M. Effect of an electric field on the resonant-transmission coefficient in double-barrier quantum structures // Semiconductors. Vol. 28, N 10, 1994. P. 1023–1025.
– Borzdov V.M., Komarov F.F., Petrovich T.A., Vrubel M.M., Zhevnyak O.G. Effect of temperature and electron concentration on the effective polarizability of 2DEG in the silicon inversion layer for surface roughness scattering // Physica Status Solidi. Vol. 83, N 2, 1994. P. K47-K49.
– Borzdov V.M., Zhevnyak O.G. Komarov F.F. Effect of electron–electron scattering on carrier transport in the n channel of a submicron silicon MOS field-effect transistor: Monte Carlo study // Semiconductors. Vol. 29, N 2, 1995. P. 95–98.
– Vrubel M.M., Borzdov V.M. Influence of stationary electric field on the energy spectrum of multisubband quantum well: from quantum confined Stark shift to Wannier-Stark quantization // Physica B. Vol.215, 1995. P. 201-204.
– Borzdov V.M., Komarov F.F., Petrovich T.A. Effective polarizability of 2DEG in silicon inversion layer for ionized impurity scattering at low temperatures // Physica Status Solidi. Vol. 188, N 2, 1995. P. K5-K8.
– Borzdov V.M., Vrubel M.M., Mulyarchic S.G., Homich A.V. Application of Monte Carlo simulation to study of scattering effect in self-consistent optical model of double-barrier resonant tunneling diode // Phys. Low-Dim. Struct. N 7, 1997. P. 67–72.
– Borzdov V.M., Komarov F.F., Homich A.V., Zhevnyak O.G. Monte Carlo simulation of impurity and surface roughness scattering effect on nonstationary hot electron transport in GaAs quantum Wire // Phys. Low-Dim. Struct. N 10, 1997. P. 63–69.
– Borzdov V.M., Galenchik V.O., Komarov F.F. A self-consistent Monte Carlo simulation of high field electron transport in Si-inversion layer with including electron-electron scattering // Phys. Low-Dim. Struct. N 5/6, 1998. P. 73–78.
– Borzdov V.M., Galenchik V.O. Simulation of electron transport in Si inversion layer at high sheet charge carrier density // Phys. Low-Dim. Struct. Vol. 3/4, 2000. P. 19–25.
– Borzdov V.M., Galenchik V.O., Komarov F.F., Kosina H., Zhevnyak O.G. Monte Carlo study of the relative frequency of scattering processes in Si-inversion layers // Phys. Low-Dim. Struct. N 5/6, 2003. P. 99–108.
– A. D. Andreev, V. M. Borzdov, A. A. Valiev, O. G. Zhevnyak and F. F. Komarov. Influence of the doping level and the temperature on electron mobility in the n channel of an MOS field-effect transistor // Journal of Engineering Physics and Thermophysics, 1998, Volume 71, Number 1, Pages 111-114.
– V. M. Borzdov, O. G. Zhevnyak, S. G. Mulyarchik and A. V. Khomich. Monte Carlo simulation of the electron drift velocity in a one-dimensional GaAs quantum wire // Technical Physics Letters, 1997, Volume 23, Number 2, Pages 98-99.
– V. A. Pilippenko, V. M. Malofeev, V. N. Ponomar', A. N. Mikhnyuk and V. M. Borzdov. Modeling of the Morphology of Aluminum Films before and after Different Kinds of Thermal Treatment // Journal of Engineering Physics and Thermophysics, 2003, Volume 76, Number 4, Pages 858-863.
– A. D. Andreev, V. M. Borzdov, A. A. Valiev, O. G. Zhevnyak and F. F. Komarov. Hybrid Model of Thermostabilization of the Drain Current in n Channel MOS Transistors // Journal of Engineering Physics and Thermophysics, 2003, Volume 76, Number 4, Pages 864-867.
– V. M. Borzdov, O. G. Zhevnyak, F. F. Komarov and A. V. Khomich. Monte Carlo simulation of electron heating in a one-dimensional GaAs-quantum conductor // Journal of Engineering Physics and Thermophysics, 1997, Volume 70, Number 2, Pages 224-227.
– V. M. Borzdov, S. G. Mulyarchik and A. V. Khomich. Monte Carlo calculation of the low-temperature mobility of two-dimensional electrons in a quantum well in a selectively doped GaAs-based heterostructure // Technical Physics Letters, 1997, Volume 23, Number 12, Pages 935-937.
– M. M. Vrubel’, V. M. Borzdov and F. F. Komarov. Effect of the width of the spacer layers on the size of the bistability region in the current-voltage characteristics of two-barrier tunnel resonance diodes // Technical Physics Letters, 1997, Volume 23, Number 11, Pages 823-824.
– V. M. Borzdov and T. A. Petrovich. Monte Carlo simulation of the low-temperature mobility of two-dimensional electrons in a silicon inversion layer // Semiconductors, 1997, Volume 31, Number 1, Pages 72-75.
– V. M. Borzdov, N. P. Boreiko, V. O. Galenchik, O. G. Zhevnyak and F. F. Komarov. Calculation of the gate current due to injection of hot electrons into the subgate oxide of a submicrometer mos field-effect transistor // Journal of Engineering Physics and Thermophysics, 1998, Volume 71, Number 3, Pages 532-535.
– D.V. Pozdnyakov, V.M. Borzdov, F.F. Komarov. Calculation of current–voltage characteristics of gallium arsenide symmetric double-barrier resonance tunneling structures with allowance for the destruction of electron-wave coherence in quantum wells// Semiconductors. 2004. Vol.38. No. 9. P. 1061–1064.
– A.V. Borzdov, D.V. Pozdnyakov, V.O. Galenchik, V.M. Borzdov, F.F. Komarov. Self-consistent calculations of phonon scattering rates in the GaAs transistor structure with one-dimensional electron gas // Physica Status Solidi (b). 2005. Vol. 242. No. 15. P. R134–R136.
– D.V. Pozdnyakov, V.O. Galenchik, V.M. Borzdov, F.F. Komarov, O.G. Zhevnyak. The ionized impurity and surface roughness scattering rates of electrons in semiconductor structures with one-dimensional electron gas and broadened energy levels // Phys. Low-Dim. Struct. 2006. No. 1. P. 19–24.
– D.V. Pozdnyakov, V.O. Galenchik, F.F. Komarov, V.M. Borzdov. Electron transport in armchair single-wall carbon nanotubes // Physica E: Low-Dim. Syst. Nanostr. 2006. Vol.33. No. 2. P. 336–342.
– D. Pozdnyakov, V. Galenchik, A. Borzdov, V. Borzdov, F. Komarov. Influence of scattering processes on electron quantum states in nanowires// Nanoscale Res. Lett. 2007. Vol.2. No.4. P.213–218.
– D. Pozdnyakov, A. Borzdov, V. Borzdov, F. Komarov. Modeling of non-stationary electron transport in semiconductor nanowires and carbon nanotubes // Proc. SPIE. 2008. Vol. 7025, P. 70251S-1–70251S-9.
– O. Zhevnyak, V. Borzdov, A. Borzdov, D. Pozdnyakov, F. Komarov. Monte Carlo study of influence of channel length and depth on electron transport in SOI MOSFETs // Proc. SPIE. 2008. Vol. 7025, P. 70251L-1–70251L-8.
– D. Pozdnyakov, A. Borzdov, V. Borzdov, V. Labunov. Calculation of electrophysical parameters of thin undoped GaAs-in-Al2O3 quantum nanowires and single-wall armchair carbon nanotubes // Proc. SPIE. 2010. Vol. 7521, P. 75210S-1–75210S-9.
– A. V. Borzdov, D. V. Pozdnyakov, V. M. Borzdov, A. A. Orlikovsky, and V. V. V’yurkov. Effect of a Transverse Applied Electric Field on Electron DriftVelocity in a GaAs Quantum Wire: A Monte Carlo Simulation // Rus. Microelectronics. 2010. Vol. 39, No. 6. P. 411–417.
– D. Speransky, A. Borzdov, and V. Borzdov. Impact ionization process in deep submicron MOSFET // International Journal of Microelectronics and Computer Science. 2012. Vol. 3, No. 1. P. 21–24.
– Borzdov A.V., Borzdov V.M., Pozdnyakov D.V., Komarov F.F. Influence of impact ionization process on current-voltage characteristics of nanoscale silicon n-channel MOSFET // Proc. Int. Conf. “Nanomaterials: Application & Properties” (NAP-2013) / eds. A.D. Pogrebnjak, A. Grigonis, T.V. Lyutyy. — Sumy: Sumy State University Publishing, 2013. Vol.2, No.4. P.04NAESP10-1–2.
– Pozdnyakov D.V., Borzdov A.V., Borzdov V.M. Calculation of current-voltage characteristics of the optimized triode with a cold cathode based on the ordered array of single-wall metallic carbon nanotubes // Proc. Int. Conf. “Nanomaterials: Application & Properties” (NAP-2013) / eds. A.D. Pogrebnjak, A. Grigonis, T.V. Lyutyy. — Sumy: Sumy State University Publishing, 2013. Vol.2, No.4. P.04NAESP05-1–2.
– N.L. Dudar, V.M. Borzdov, A.S. Turtsevich. Technology computer-aided design and study of prototypes of a silicon Zener diode // Journal of Engineering Physics and Thermophysics. 2014. Vol. 87, No. 4, P. 997–1001.
– V.M. Borzdov, A.V. Borzdov, D.S. Speransky, V.V. V’yurkov, and A.A. Orlikovsky. Evaluation of the Effective Threshold Energy of the Interband Impact Ionization in a Deep-Submicron Silicon n-Channel MOS Transistor // Russian Microelectronics. 2014. Vol. 43, No. 3, P. 189–193.
– A.V. Borzdov, V.M. Borzdov, V.V. V’yurkov. Monte Carlo simulation of hot electron transport in deep submicron SOI MOSFET // Proc. SPIE. 2014. Vol. 9440. P. 944013-1–944013-7.
– A.V. Borzdov, V.M. Borzdov, N.N. Dorozhkin. Numerical simulation of electric characteristics of deep submicron silicon-on-insulator MOS transistor // Devices and Methods of Measurements. 2016. Vol. 7, No. 2. P. 161–168.
– A.V. Borzdov, V.M. Borzdov, V.V. V’yurkov. Ensemble Monte Carlo simulation of electron transport in GaAs/AlAs quantum wire structure under the effect of terahertz electric field // Proc. SPIE. 2016. Vol. 10224. P. 102240W-1–102240W-6.
– R. Khabutdinov, I. Semenikhin, F. Davydov, D. Svintsov, V. Vyurkov, L. Fedichkin, K. Rudenko, A.V. Borzdov, V.M. Borzdov. Low-dimensional transit-time diodes for terahertz generation // Proc. SPIE. 2016. Vol. 10224. P. 102240M-1–102240M-9.

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