PHANNA K. XIENG, ET AL, Respondents, v. PEOPLES NATIONAL BANK OF WASHINGTON, Petitioner.
 Civil Rights – Law Against Discrimination – Construction – Similar Federal Statute. Federal case law interpreting Title 7 of the Civil Rights Act of 1964 is relevant authority for construing the Law Against Discrimination (RCW 49.60), the state statutory counterpart to Title 7.
 Civil Rights – Employment Discrimination – Law Applicable – Contract Cases. A principle of law applicable in a breach of an employment contract case does not necessarily apply to an employment discrimination case under RCW 49.60.180.
 Civil Rights – Law Against Discrimination – Public Pol-icy. The Law Against Discrimination (RCW 49.60) embodies a public policy of the highest priority.
 Civil Rights – National Origin Discrimination – Foreign Accent – Defenses – Belief of Interference With Job Performance. When a trial court in an action for employment discrimination based on national origin in violation of RCW 49.60.180(3) enters unchallenged findings that (1) the employee's accent was the reason for the employee not receiving a promotion and (2) the accent would not have materially interfered with the employee's job performance, there is no factual basis supporting the employer's claim on appeal that it in good faith believed that the employee's national origin accent would materially interfere with the employee's job performance.
 Civil Rights – Employment Discrimination – Review – Burden of Proof at Trial – Effect. On appellate review of an employment discrimination claim, issues concerning the employee's and employer's burdens of production and proof at trial merge into the trier of fact's determination of the ultimate discrimination issue. Such a factual determination is upheld on review if it is supported by substantial evidence.
 Damages – Mitigation – Collateral Source Rule – What Constitutes. The collateral source rule operates to prevent a defendant from receiving the benefit of payments made to a plaintiff from a source independent of the defendant.
 Civil Rights – Employment Discrimination – Remedies – Damages – Offset for Disability Award – Nature of Disability Benefits – Effect. Payments made under a disability insurance policy purchased by an employer cannot be used to offset damages due an employee for employment discrimination if the disability benefits are in the nature of a fringe benefit of employment rather than indemnification for the employer against future liability to its employees.
 Civil Rights – Employment Discrimination – Remedies – Damages – Offset for Disability Award – Nature of Disability Benefits – Factors. For purposes of determining whether payments made under a disability insurance policy purchased by an employer can be used to offset damages due an employee for employment discrimination, a court determines the nature of the disability benefits by considering the following nonexclusive factors: (1) whether the employee makes any contribution to the funding of the disability benefits; (2) whether the benefit plan resulted from collective bargaining; (3) whether the benefit plan covers both work-related and nonwork-related injuries; (4) whether payments from the plan are contingent on the employee's length of service; and (5) whether the plan specifically provides for a setoff of benefits against a judgment received in a tort action.
 Appeal – Findings of Fact – Absence of Finding – Effect. The absence of a finding of fact is interpreted as a finding against the party having the burden of proving that fact.
 Civil Rights – Employment Discrimination – Remedies – Damages – Offset for Disability Award – Nature of Disability Benefits – Burden of Proof. An employer has the burden of proving that payments made under a disability insurance policy purchased by the employer are in the nature of indemnification for the employer against liability to its employees and therefore can be used to offset damages due an employee for employment discrimination.
 Statutes – Construction – Retroactivity – Legislative Intent – In General. When congressional intent regarding the retroactivity of a federal statute is clear, it governs.
 Statutes – Construction – Considered as a Whole – Meaning to All Words. Statutes are interpreted so that no part is rendered inoperative.
 Civil Rights – Employment Discrimination – Costs – Expert Witness Fees. Under RCW 49.60.030(2), expert witness fees are recoverable in employment discrimination cases that were pending on November 21, 1991, the effective date of an amendment to 42 U.S.C. § 2000e-5(k) allowing an award of expert witness fees as an element of costs in employment discrimination cases.
 Civil Rights – Employment Discrimination – Remedies – Damages – Back Pay – Elimination of Position – Effect. An award of back pay to a victim of employment discrimination is not terminated as of the time the employer eliminates the position to which the employee would have been promoted but for the illegal discrimination unless the employer demonstrates that the employee would not have been retained in a different position after the elimination of the position for which the employee applied.
 Civil Rights – Law Against Discrimination – Attorney Fees – On Appeal. Under RCW 49.60.030(2), attorney fees may be awarded on appeal to a victim of discrimination.
Nature of Action: A bank employee who had been turned down for promotions for which he was qualified sought damages for discrimination based on national origin.
Superior Court: The Superior Court for King County, No. 86-2-24811-1, Mary Wicks Brucker, J., on September 19, 1990, entered a judgment in favor of the employee.
Court of Appeals: The court at 63 Wn. App. 572 affirmed the judgment, holding that the trial court had applied the proper discrimination standard, that there was substantial evidence of discrimination, and that the damage, fee, and cost awards were proper.
Supreme Court: Holding that the employer's claim of a good faith belief that the employee's accent would materially interfere with job performance lacked a factual predicate, that the employer was not entitled to an offset against the judgment for disability benefits paid, that an expert witness fee award was proper, and that the employer's elimination of the employee's position did not require adjustment of the back pay award, the court affirms the decision of the Court of Appeals and the judgment.
Miller, Nash, Wiener, Hager & Carlsen, James R. Dickens, and Beth M. Andrus, for petitioner.
Helsell, Fetterman, Martin, Todd & Hokanson, by David F. Jurca and Laura F. Pasik, for respondents.
Defendant's reason for not promoting plaintiff to a Credit Authorizer or Loan Officer position was because of plaintiff's foreign accent. . . .
Plaintiff's accent did not interfere materially with his job performance, nor would it have interfered materially with his job performance as a Credit Authorizer or Loan Officer if he had been promoted to such a position.
Finding of fact 22; Clerk's Papers, at 649-50.
Defendant discriminated against plaintiff in compensation or in other terms or conditions of employment because of national origin, in violation of RCW 49.60.180(3).
Conclusion of law 2; Clerk's Papers, at 652.
The primary issue is whether, despite such findings of fact, the employer has a complete defense to statutorily prohibited employment discrimination if the employer has what defendant describes as a good faith belief that the national origin accent would materially interfere with job performance? The answer is no. It would be incongruous for a fact finder to be persuaded that the national origin characteristic would not materially interfere with job performance and, from the same evidence, find that the employer, in fact, in good faith and based on substantial evidence held a belief diametrically opposed thereto.
In addition to (1) that primary issue, also at issue are: (2) whether payments made under a disability insurance policy purchased by the employer can be offset against a judgment obtained by an employee in an employment discrimination action; (3) whether expert witness fees are a proper element of a costs award; and (4) whether a back pay award should be terminated as of the time when the employer eliminates the disputed position. The trial court rejected the employer's request to offset the disability payments, awarded expert witness fees and rejected a cutoff of back pay. The Court of Appeals affirmed the trial court's disposition of each of these issues. Xieng v. Peoples Nat'l Bank of Wash., 63 Wn. App. 572, 821 P.2d 520 (1991). We affirm.
The facts will be briefly summarized here. The trial court's findings of fact are set out in the appendix. The plaintiff employee, Mr. Xieng, is of Cambodian national origin. Mr. Xieng first came to the United States in 1974, when he was sent here from Cambodia for "advanced military training".
When the Cambodian government fell in 1975, Mr. Xieng remained in the United States. After working at several jobs around the country, Mr. Xieng began his employment with Peoples National Bank of Washington (Bank) in 1979. In 1981, Mr. Xieng participated in a management training program the Bank offered for women and minorities. In August 1982, after completing the Bank's management training program, Mr. Xieng was given the position of "loan coordinator".
In performance appraisals completed by Mr. Xieng's supervisors in 1980, 1983, 1984, and 1985, Mr. Xieng was rated "capable of dealing effectively with customers", and each supervisor indicated that Mr. Xieng was presently qualified for promotion. Each appraisal after 1980 referred to communication skills as an area for improvement to maximize his possibilities for future advancement, but even with these suggestions, all but the 1982 appraisal were essentially positive and complimentary. Despite these positive appraisals and the numerous applications submitted by Mr. Xieng, he never received any of the promotions for which he applied. Even after he had performed as a credit authorizer on a nearly full-time basis for several months, he was not given a promotion to that position.
Finally, on November 18, 1986, Mr. Xieng filed a complaint for employment discrimination against the Bank, alleging that the Bank's failure to promote him constituted national origin discrimination. Mr. Xieng continued his employment with the Bank until he went on full disability leave in August 1987. At that time, he became eligible for disability payments under a disability insurance policy paid for by his employer. Mr. Xieng accepted a $20,000 lump sum settlement from the insurer.
Following the bench trial, the trial court found that Mr. Xieng was qualified for many of the promotions he applied for, that his accent would not have materially interfered with his job performance in the positions for which he applied, and that the Bank's failure to promote him because of his accent constituted national origin discrimination. The trial court's award of $388,982.71 included an award of 3 years of back pay and a costs award which included expert witness fees. The trial court did not offset the disability payments made to Mr. Xieng against the judgment. The Court of Appeals upheld all challenged findings of fact and affirmed all elements of the trial court's judgment.
Before considering the four issues described above, we clarify why there are no issues of fact before the court. In its appeal to the Court of Appeals, all of the Bank's 14 assignments of error were to findings of fact. The Court of Appeals held that all challenged findings of fact were supported by substantial evidence. In its petition for review, the Bank did not challenge the findings of fact. Rather it presented the primary issue as solely one of law, contending that it was entitled to a good faith belief defense. Issues not raised in a petition for review are not considered. RAP 13.7(b) provides in part: "If the Supreme Court accepts review of a Court of Appeals decision, the Supreme Court will review only the questions raised in . . . the petition for review and the answer, unless the Supreme Court orders otherwise . . .". See Wood v. Postelthwaite, 82 Wn.2d 387, 510 P.2d 1109 (1973).
Thus, the following are established facts: (1) that defendant's reason for not promoting plaintiff was because of his "foreign" accent, (2) that plaintiff's accent did not interfere materially with his job performance, and (3) that plaintiff's accent would not have interfered materially with his job performance if he had been promoted to the position for which the court also found he was qualified.
 Recognizing that this provision lacks specific criteria for proving a discrimination claim, we have looked to cases interpreting equivalent federal laws. E.g., Allison v. Housing Auth., 118 Wn.2d 79, 88, 821 P.2d 34 (1991) (retaliatory discharge); Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 356, 753 P.2d 517 (1988) (age discrimination); Oliver v. Pacific Northwest Bell Tel. Co., 106 Wn.2d 675, 678, 724 P.2d 1003 (1986) (race discrimination); Dean v. Municipality of Metro Seattle, 104 Wn.2d 627, 636, 708 P.2d 393 (1985) (handicap discrimination). As we explained in Oliver, "RCW 49.60 is patterned after Title 7 of the Civil Rights Act of 1964 . . .. Consequently, decisions interpreting the federal act are persuasive authority for the construction of RCW 49.60." Oliver, at 678. For the same reason, federal case law is relevant in a case involving a claim of national origin discrimination.
Defendant contends that rejection of the good faith belief standard as a complete defense is contrary to our holdings in Grimwood v. University of Puget Sound, Inc., supra, Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 769 P.2d 298 (1989), and Gaglidari v. Denny's Restau-rants, Inc., 117 Wn.2d 426, 815 P.2d 1362 (1991). As discussed hereafter, Baldwin and Gaglidari are not employment discrimination cases based on the statute, but rather involved employment termination under an employee handbook or manual. Defendant further argues that unless there is a complete defense of good faith belief, an employer must "prove absolutely" that the employee's accent would have interfered materially with job performance. Petition for Review, at 9. This, it is argued, shifts the burden of proof to the employer contrary to the holding in Grimwood, at 363, that the burden of persuasion remains at all times upon the plaintiff. This necessitates an analysis of burdens of production and persuasion.
We have consistently utilized the burden allocation scheme developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). E.g., Grimwood, at 361-62.
Once a plaintiff has made out a prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for termination. The employer's burden at this stage is not one of persuasion, but rather a burden of production. To go forward, the employer need only articulate reasons sufficient to meet the prima facie case. Once the employer fulfills [its] burden of production . . . the plaintiff must satisfy his [or her] ultimate burden of persuasion and show that the employer's articulated reasons are a mere pretext for what, in fact, is a discriminatory purpose.
(Citations omitted.) Grimwood, at 363-64.
In a case involving a claim of accent-based national origin discrimination, the Ninth Circuit explained the burden the employer must meet once the plaintiff makes a prima facie case. Fragante v. City & Cy. of Honolulu, 888 F.2d 591 (9th Cir. 1989), cert. denied, 494 U.S. 1081 (1990).
An adverse employment decision may be predicated upon an individual's accent when – but only when – it interferes materially with job performance. There is nothing improper about an employer making an honest assessment of the oral communications skills of a candidate for a job when such skills are reasonably related to job performance.
a note of caution to the trial courts. Accent and national origin are obviously inextricably intertwined in many cases. It would therefore be an easy refuge in this context for an employer unlawfully discriminating against someone based on national origin to state falsely that it was not the person's national origin that caused the employment or promotion problem, but the candidate's inability to measure up to the communications skills demanded by the job. We encourage a very searching look by the [trial] courts at such a claim.
a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. We further hold a discharge for "just cause" is one which is not for any arbitrary, capricious, or illegal reason and which is based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true.
Baldwin, at 139. In a later wrongful discharge case, we applied a somewhat modified "just cause" requirement to an employment contract that listed specific permissible grounds for termination. Gaglidari v. Denny's Restaurants, Inc., supra. Without any reference to the burden allocation scheme, we explained that "the issue is whether at the time plaintiff was dismissed defendant reasonably, in good faith, and based on substantial evidence believed" that one of the permissible grounds for termination was present. Gaglidari, at 438. Relying on Gaglidari, the Bank argues that its burden should be to produce evidence that it "reasonably, in good faith, and based on substantial evidence believed" that Mr. Xieng's accent would interfere with his performance of the positions sought.
[2, 3] A principle of law, such as applied in Gaglidari in a contract setting, does not necessarily and automatically apply in an employment discrimination case where the cause of action is created by a statute. The statute mandates that it be construed liberally for the accomplishment of its declared purposes. RCW 49.60.020. The statute embodies a public policy of "the highest priority". Allison v. Housing Auth., supra at 86. In contrast, the common law termination cases represent an evolving area of the law in its departure from the termination-at-will doctrine. Baldwin, at 135. The question of breach of contract by the employer in Gaglidari was framed as whether the employer "reasonably, in good faith, and based on substantial evidence believed plaintiff" had violated her contract rules of employment. Gaglidari, at 438.
The noted rule in Gaglidari is appropriate in that kind of a case, but is not suited to a statutory employment discrimination case. Following Grimwood, at 363-64, once the plaintiff has made a prima facie case, the employer has the burden of production to articulate a legitimate, nondiscriminatory reason for its action. If the employer meets that burden, "the plaintiff must satisfy his ultimate burden of persuasion and show that the employer's articulated reasons are a mere pretext for what, in fact, is a discriminatory purpose." Grimwood, at 364.
[4, 5] A finding by the trial court that the reason for not promoting plaintiff was his accent and that his accent did not and would not interfere materially with job performance is equivalent to a finding of pretext. Such finding is inconsistent with defendant having persuaded the fact finder that it acted reasonably, in good faith and based upon substantial evidence.
Because the Bank's claimed defense necessitates a finding of good faith, reasonably held and based on substantial evidence, it is appropriate to note the trial court's statement in its oral opinion: "And the Court would further find that the reason for the rejection [for promotion] was not worthy of credence. That it was an excuse or a reason that was not a nondiscriminatory reason." Clerk's Papers, at 655.
We have cited Fragante v. City & Cy. of Honolulu, 888 F.2d 591 (9th Cir. 1989), cert. denied, 494 U.S. 1081 (1990) as persuasive authority. That court noted that the employer must demonstrate "a factual basis" for its evaluation. Fra-gante, at 597. Importantly, the court encouraged "a very searching look" at a claim that it was not the person's national origin which caused the employment or promotion decision because such a claim would be "an easy refuge" for the employer. Fragante, at 596. Implicit in the whole tenor of that opinion is a rejection of the notion that a good faith belief, in and of itself, is a defense.
Obviously these allocated burdens are pertinent at various stages of pretrial and trial proceedings. Appellate review requires a different inquiry. As here, the appellate court must determine if the correct principle or standard of law was applied to the facts as found by the trier of fact. However, issues of the respective burdens of the parties, whether production or persuasion, are viewed in a different way.
Once an employment discrimination case has been decided on the merits, any issues concerning the employer's burden merge into the ultimate disposition of the issue of discrimination made by the trier of fact. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-16, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983); Burnside v. Simpson Paper Co., 66 Wn. App. 510, 524, 832 P.2d 537 (1992).
Once all the evidence has been presented, the burden of proof formulation "drops from the case" and the focus of the fact-finder is properly on the ultimate issue of discrimination. . . .
Issues of the plaintiff's prima facie case, the employer's burden to rebut with a legitimate nondiscriminatory reason, and the employee's showing of pretext are irrelevant once all the evidence is in.
Burnside, at 524 (citing Aikens, at 715).
As to findings of fact by the trial court, our role on review is simply to determine whether the trial court's ultimate findings on the issue of discrimination meet the usual standard of review for factual findings. Anderson v. Bessemer City, 470 U.S. 564, 573, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985); Aikens, at 716. See also 2 A. & L. Larson, Employment Discrimination § 49.61 (1991). In Washington, that standard is whether the finding is supported by substantial evidence. See World Wide Video, Inc. v. Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991), cert. denied, 118 L. Ed. 2d 391 (1992).
Therefore, because we hold that the trial court properly rejected a "good faith belief" as a complete defense, the only way the Bank could challenge the trial court's application of the Grimwood burden allocation scheme is by challenging the trial court's factual finding on the issue of discrimination. As noted initially, the present posture of this case does not permit review of the trial court's factual findings. Consequently, the Bank's challenge to the trial court's disposition of the issue of discrimination fails.
 The next issue is whether the trial court properly applied the collateral source rule to the disability benefits received by Mr. Xieng under the disability insurance policy paid for by the Bank. The collateral source rule operates to prevent a defendant from receiving the benefit of payments made to a plaintiff from a source independent of the defendant. Ciminski v. SCI Corp., 90 Wn.2d 802, 804, 585 P.2d 1182 (1978). In that case we explained that, in a collateral payment situation, the receipt of a windfall by one party or the other is unavoidable, and that, as between an injured plaintiff and a defendant-wrongdoer, the plaintiff is the appropriate one to receive the windfall. Ciminski, at 805-06.
[7, 8] We have not yet considered the applicability of the collateral source rule to payments made under a disability insurance policy paid for by an employer where the employer is also the defendant. The federal courts have confronted the precise issue involved here. The federal courts have held that the applicability of the collateral source rule depends on whether the employer-funded benefits are in the nature of a fringe benefit of employment or of indemnification for the employer against future liability to its employees. Folkestad v. Burlington Northern, Inc., 813 F.2d 1377, 1381 (9th Cir. 1987). See also Clark v. Burlington Northern, Inc., 726 F.2d 448 (8th Cir. 1984); Allen v. Exxon Shipping Co., 639 F. Supp. 1545, 1547-48 (D. Me. 1986).
A benefit may be exempt from set-off under the collateral source rule even though the employer is the sole source of the fund. The important consideration is the character of the benefits received, rather than whether the source is actually independent of the employer.
It is clear that the general issue to be resolved is whether payment of the benefits is made pursuant to a plan of the employer to provide for its own indemnification or whether the payment is in the nature of a fringe benefit or deferred compensation.
Allen, at 1547-48 (citing Clark, at 448).
Phillips v. Western Co. of North Am., 953 F.2d 923, 932 (5th Cir. 1992) (quoting Allen, at 1548).
Although Clark and Folkestad both involved employee claims under the Federal Employers' Liability Act (FELA) and both required interpretation of the statutory scheme in the FELA context, other cases make clear that the "nature of the benefit" test is applicable to the common law collateral source doctrine. See Phillips, at 930-33 (applying test to collateral source rule in Jones Act case); United States v. Price, 288 F.2d 448, 450 (4th Cir. 1961) (applying the test to the collateral source rule in a Federal Tort Claims Act case); Allen, at 1547-48 (applying test in non-FELA case). In fact, the rule was initially developed through cases arising in a variety of contexts. Haughton v. Blackships, Inc., 462 F.2d 788, 790-91 (5th Cir. 1972) (seaman's claim for negligence); Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 537 (9th Cir. 1962) (seaman's claim for maintenance and cure and for negligence under maritime law and the Jones Act); Price, at 450 (Federal Tort Claims Act case).
In addition, the FELA cases themselves indicate that the "nature of the benefit" test is relevant to the common law collateral source rule. Clark, at 450 (states the test in explaining the collateral source rule as opposed to the relevant FELA statutory provision); Brice v. National R.R. Passenger Corp., 664 F. Supp. 220, 222 (D. Md. 1987); Hall v. Minnesota Transfer Ry. Co., 322 F. Supp. 92, 95 (D. Minn. 1971) (common law collateral source rule applies to FELA cases subject to the FELA statutory limitation).
[W]hether the issue is application of the common law collateral source rule or the propriety of a set off under [the relevant FELA provision], the question remains: Is [the benefit] a fringe benefit or a policy of indemnity against liability for on-duty injuries?
We agree that the proper test for application of the collateral source rule is the nature of the disability benefits. If the disability benefits are a fringe benefit of employment, the collateral source rule applies to prevent an offset. Our decision is consistent with decisions in other states applying similar versions of the "nature of the benefit test". Stachurski v. K Mart Corp., 180 Mich. App. 564, 572, 447 N.W.2d 830, 834 (1989) (personal injury action based on theories of products liability and negligence); Tarrant Cy. Waste Disposal, Inc. v. Doss, 737 S.W.2d 607, 611 (Tex. Ct. App. 1987) (negligence action for personal injury). We also agree that the factors listed in Allen are helpful, but we do not adopt them as exclusive.
[9, 10] Because the trial court did not make a finding as to the nature of the disability policy in this case, we must treat the case as though a finding of fact against the party with the burden of proof was made. See Golberg v. Sanglier, 96 Wn.2d 874, 880, 639 P.2d 1347, 647 P.2d 489 (1982). In order to do this, we must first determine which party had the burden of proof on this issue. As with other issues raised by the Bank in an attempt to reduce or mitigate their damages, the burden of proof on this issue should be placed on the Bank. See Smith v. King, 106 Wn.2d 443, 451, 722 P.2d 796 (1986).
The Bank has failed to meet its burden on this issue. The Bank failed to offer any evidence that the disability insurance was intended to indemnify the Bank. In fact, the only evidence concerning the nature of the disability insurance was an admission by the Bank's assistant vice-president and employee relations officer that the disability insurance policy was a fringe benefit of Mr. Xieng's employment. Therefore, we treat this case as though the trial court made a finding that the disability insurance policy was a fringe benefit of Mr. Xieng's employment. Accordingly, the trial court correctly applied the collateral source rule and disallowed the Bank's requested offset for the disability benefits.
Any person deeming himself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, to recover the actual damages sustained by him, or both, together with the cost of suit including a reasonable attorney's fees or any other remedy authorized by this chapter or the United States Civil Rights Act of 1964 . . ..
Our previous cases discussing the proper scope of a costs award under RCW 49.60.030(2) are in conflict. Compare Blair v. WSU, 108 Wn.2d 558, 740 P.2d 1379 (1987) with Shannon v. Pay 'N Save Corp., 104 Wn.2d 722, 709 P.2d 799 (1985). In Shannon we held that the scope of "cost of suit" under RCW 49.60.030(2) is the same as the scope of "costs" under RCW 4.84.030, our general costs provision. Based on that holding, we denied an award of expert witness fees because such an award is not authorized under RCW 4.84.030. Shannon, at 736. Although in Blair we did not expressly consider whether expert witness fees are within the scope of RCW 49.60.030(2), we did hold that RCW 4.84 does not limit the scope of RCW 49.60.030(2), and expert witness fees were a part of the trial court's costs award which we upheld.
As with other provisions of RCW 49.60, federal authority is relevant in interpreting our costs provision. Blair, at 572-73. Consideration of the federal cases confronting the issue of the availability of expert witness fees demonstrates that in the past there was similar conflict among the federal courts.
In 1987, the United States Supreme Court held that expert witness fees were not recoverable under the general costs statute, 28 U.S.C. § 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 96 L. Ed. 2d 385, 107 S. Ct. 2494 (1987). However, Crawford did not have the effect of making expert witness fees unavailable in all cases. Other cases had awarded expert witness fees as part of attorney fees under 42 U.S.C. § 1988. E.g., Bruno v. Western Elec. Co., 618 F. Supp. 398 (D. Colo. 1985), aff'd in part, rev'd in part on other grounds, 829 F.2d 957 (10th Cir. 1987). In 1991, the United States Supreme Court eliminated this option by holding that expert witness fees cannot be awarded as part of costs or as part of attorney fees unless expressly provided for by statute. West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 113 L. Ed. 2d 68, 111 S. Ct. 1138 (1991). Later in 1991, the Civil Rights Act of 1991 amended 42 U.S.C. § 2000e-5(k), the attorney fees provision for employment discrimination cases, to expressly allow for an award of expert witness fees as part of the attorney fees element of costs. Pub. L. No. 102-166, § 113(b), 105 Stat. 1071, 1079.
It is clear that RCW 49.60.030(2) would now permit an award of expert witness fees as a remedy explicitly "authorized by . . . [§ 2000e-5(k) of] the United States Civil Rights Act of 1964", as amended by the Civil Rights Act of 1991. Thus, as to employment discrimination claims brought under RCW 49.60.180(3) after the enactment of the amendment to § 2000e-5(k) on November 21, 1991, an award of expert witness fees is clearly authorized by RCW 49.60.030(2). However, the trial in the present case took place before November 21, 1991. The issue, then, is whether the amendment to § 2000e-5(k), as part of the Civil Rights Act of 1991 (Act), should be applied to cases that were pending on appeal at the time the amendment was enacted.
The federal courts that have considered whether the Act should be applied to cases pending at the time of enactment are divided both as to result and rationale. See, e.g., Davis v. City & Cy. of San Francisco, 976 F.2d 1536 (9th Cir. 1992) (holding that congressional intent to apply the Act, including the amendment to § 2000e-5(k), to pending cases is clear from the statutory language); Mozee v. American Comm'l Marine Serv. Co., 963 F.2d 929 (7th Cir.) (holding not retroactive based on a presumption), cert. denied, 121 L. Ed. 2d 148 (1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 1992) (holding not retroactive based on a presumption); Vogel v. Cincinnati, 959 F.2d 594 (6th Cir.) (holding not retroactive based on a presumption), cert. denied, 121 L. Ed. 2d 49 (1992).
[11-13] The most convincing rationale and the rationale we adopt is that of the Ninth Circuit in Davis. The Ninth Circuit recognized, as have the other circuits, that the United States Supreme Court has given somewhat conflicting guidance concerning when legislation should be applied retroactively. See Bradley v. School Bd., 416 U.S. 696, 711, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974) (stating that legislation applies to pending cases unless application "would result in manifest injustice or there is statutory direction or legislative history to the contrary"); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988) (stating that legislation should be applied retroactively only when the "language requires this result"). The Ninth Circuit, following a third United States Supreme Court opinion, Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990), found it unnecessary to resolve this conflict. In Bonjorno, the Court explained that, "where the congressional intent [con-cerning retroactivity] is clear, it governs," and resort to a presumption is unnecessary. Davis v. City & Cy. of San Francisco, 976 F.2d 1536, 1550 (9th Cir. 1992) (quoting Bonjorno, at 837).
The Davis court was presented with the precise issue of whether to apply the amendment to § 2000e-5(k) to the case before it, which was pending at the time of enactment of the amendment. The court found that the congressional intent concerning the retroactivity of the Act, including the amendment to § 2000e-5(k), was clear from the statutory language. Davis, at 1550. The court pointed to the language in sections 109(c) and 402(b) of the Act explicitly making certain provisions applicable prospectively only. Civil Rights Act of 1991, Pub. L. No. 102-166, § 109(c), 105 Stat. 1071, 1078 ("The amendments made by this section shall not apply with respect to conduct occurring before the date of enactment of this Act."); Civil Rights Act of 1991, Pub. L. No. 102-166, § 402(b), 105 Stat. 1071, 1099 ("[N]othing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975, and for which an initial decision was rendered after October 30, 1983."). Relying on the rule of construction that "a statute should be interpreted so as not to render one part inoperative," Davis, at 1551 (quoting South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22, 90 L. Ed. 2d 490, 106 S. Ct. 2039 (1986) (quoting Colautti v. Franklin, 439 U.S. 379, 392, 58 L. Ed. 2d 596, 99 S. Ct. 675 (1979))), the court explained that the only way these provisions possess any meaning is if the rest of the Act is intended to be applied to cases pending at the time of enactment. Davis, at 1551. The court recognized that the intent ascertained from the statutory language can be overridden by clear evidence of a contrary intent in the legislative history. Davis, at 1553. After considering the limited legislative history, comprised primarily of floor statements made by individual congresspersons, the court found that no such clear evidence existed in this case. Davis, at 1555. See also Mozee v. American Comm'l Marine Serv. Co., 963 F.2d 929, 941 (7th Cir. 1992) (Cudahy, Circuit Judge, dissenting) ("Given the general lack of information, we should give effect to the only direction Congress has provided: if section 109 is to apply prospectively, the rest of the Act is retroactive").
We are persuaded that the Ninth Circuit acted consistently with the pronouncements of the United States Supreme Court concerning statutory interpretation in reaching the conclusion that Congress intended the Act to be applied to cases pending at the time of enactment. Therefore, 42 U.S.C. § 2000e-5(k) of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991 is applicable to this case, and the trial court's award of expert witness fees to Mr. Xieng was proper under RCW 49.60.030(2). Given this conclusion, we need not resolve any conflict between Blair v. WSU, 108 Wn.2d 558, 740 P.2d 1379 (1987) and Shannon v. Pay 'N Save Corp., 104 Wn.2d 722, 709 P.2d 799 (1985).
Any person deeming himself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, to recover the actual damages sustained by him, or both, together with the cost of suit including a reasonable attorney's fees . . ..
We have interpreted RCW 49.60.030(2) as authorizing an award of back pay. See Davis v. Department of Labor & Indus., 94 Wn.2d 119, 127, 615 P.2d 1279 (1980). We have not yet considered how the elimination of the position to which a plaintiff would have been promoted absent the employer's discrimination affects an award of back pay.
As discussed above, in the absence of adequate state authority, federal authority is persuasive in interpreting RCW 49.60. Where an employer claims that a back pay award should be cut off as of the time the position sought or previously held by the plaintiff was subsequently eliminated, the federal courts place the burden on the employer to show "that plaintiff would not have been retained in some other capacity." Archambault v. United Computing Sys., Inc., 786 F.2d 1507, 1515 (11th Cir. 1986). See also Meschino v. International Tel. & Tel. Corp., 661 F. Supp. 254, 257 (S.D.N.Y. 1987). Similarly, in a case where the plaintiff's successor continued his employment with the employer after the plaintiff's former position was eliminated, the court held that the time of elimination of the position was not the proper time to terminate the back pay period. Hill v. Spiegel, Inc., 708 F.2d 233, 238 (6th Cir. 1983). See also Gaddy v. Abex Corp., 884 F.2d 312, 319 (7th Cir. 1989) (holding that a cutoff of back pay as of the time of the sale of the employer's business was not appropriate where other employees in plaintiff's former department were retained by the purchaser).
A statement by a federal court in the context of a front pay award is consistent with this approach.
[C]ourts will presume for the purposes of awarding relief that an illegally discharged employee would have continued working for the employer until he or she reaches normal retirement age, unless the employer provides evidence to the contrary.
MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1060 (8th Cir. 1988). More generally, a Federal District Court has stated that "[a] general reduction in the workforce, however, is not a valid defense to a claim of front pay." Sims v. Mme. Paulette Dry Cleaners, 638 F. Supp. 224, 233 (S.D.N.Y. 1986).
 Because this argument represents another attempt by the Bank to reduce its damages, it is analogous to a mitigation of damages issue, and we agree with the federal courts that the employer should bear the burden to demonstrate that the plaintiff would not have been shifted to another position after the elimination of the position for which the plaintiff applied. See Smith v. King, 106 Wn.2d 443, 451, 722 P.2d 796 (1986) (stating that the burden of proof for mitigation of damages issues is on the defendant).
The Bank did not meet its burden in this case. The only evidence relied upon by the Bank as proof that Mr. Xieng would not have been retained in a different position is the testimony of the Bank's assistant vice-president and employee relations manager. He testified that the credit authorizer position was eliminated in 1988 and that Mr. Xieng would have been "displaced" after the elimination of the credit authorizer position. The witness also explained that by "displaced", he meant laid off. However, the witness did not indicate whether all employees holding credit authorizer positions were laid off or whether some were retained in other positions. Specifically, the witness failed to explain what happened to the employee who was given the credit authorizer position that Mr. Xieng might have occupied absent the Bank's discrimination. Moreover, the same witness, when called by the plaintiff, admitted that U.S. Bank, the successor to the Bank, had an equivalent position called "branch loan assistant". Therefore, the Bank did not present the evidence required to justify an adjustment to Mr. Xieng's back pay award. We affirm the trial court's award of back pay.
 Our final consideration is whether Mr. Xieng is entitled to attorney fees on review. Mr. Xieng has requested attorney fees on review pursuant to RAP 18.1 and RCW 49.60.030(2). RAP 18.1 provides for an award of attorney fees on review where a statute authorizes such an award. RCW 49.60.030(2) does not expressly provide for attorney fees on review, but it has been interpreted as authorizing such an award. Allison v. Housing Auth., 118 Wn.2d 79, 98, 821 P.2d 34 (1991). Therefore, provided that all requirements of RAP 18.1 are satisfied, we award attorney fees on review to Mr. Xieng in an amount to be calculated by the commissioner under RAP 18.1(f).
1. Defendant Peoples National Bank of Washington was acquired by U.S. Bancorp in January 1988. Since that time U.S. Bank of Washington, N.A., a wholly owned subsidiary of U.S. Bancorp, had succeeded to the rights, responsibilities and obligations of defendant Peoples National Bank of Washington.
2. At all relevant times defendant did business in King County, Washington and had eight or more employees.
3. Plaintiff was born in 1949 in Cambodia and was educated there, receiving a degree of Bachelor of Arts in Federal Administration from Battambang University in Cambodia, where, among other things, he was elected president of the student body. Plaintiff's father was a professor at the university.
4. Following his graduation from college in 1969, plaintiff studied for a year at the Sorbonne in Paris, received training as a foreign naval officer at the French Naval School in Brest, France, served briefly as an Assistant to the Charge d'Affaires at the Cambodian Embassy in Seoul, Korea, served briefly in the Office of the Governor of Phnom Penh, and studied public affairs and administrative law at the National Institute of Public Affairs in Phnom Penh in 1971-72 and economics, finance and law at the National Institute of Law in Phnom Penh in 1972-74.
5. As a naval officer in the Cambodian Military Service, in 1974 plaintiff was sent to the United States for advanced military training in conjunction with the joint defense of Indochina. Plaintiff attended the United States Military School for command officers at Lackland Air Force Base in Texas and at San Diego Naval Base in California. In February 1975 plaintiff was awarded a diploma for successful completion of the American Language Course at the English Language School of the Defense Language Institute. He also received American military training as an air and sea rescue pilot for amphibious forces, including courses in gunnery, underwater demolition, landing craft beach and surf salvage, and first aid and general damage control. All of this training was conducted in English.
6. In 1975, while plaintiff was stationed at the San Diego Naval Base, Pol Pot and Khmer Rouge overthrew the Cambodian government and embarked on genocidal atrocities in Cambodia. Plaintiff subsequently learned that all other members of his family were killed in Cambodia by the Pol Pot regime. When the Cambodian government fell, plaintiff was released from further military training at the San Diego Naval Base and, unable to return to Cambodia, he was left stranded in the United States.
7. Following his release from military training in 1975, plaintiff traveled across the United States, working at assorted odd jobs, and ended up in Washington, D.C. He attended the Lewis International School there and obtained a diploma in Hotel and Restaurant Management in March 1976. While in Washington, D.C., he met his wife-to-be, Bathou, also of Cambodian origin, whose parents had been attached to the Cambodian embassy. Plaintiff traveled back to the West Coast and worked for a while for American Airlines in Los Angeles. In 1978 he moved to the Seattle area, where Bathou joined him and the two were married. They now have two children.
8. In 1978 Plaintiff entered a Skipper's Fish and Chips management training course, and in six months he became an assistant manager. Four months later he was promoted to manager of a Skipper's Seafood and Chowder House restaurant in Kirkland, where he was responsible for all phases of restaurant management and operations.
9. In 1979, in what plaintiff hoped would be a significant career advancement, he applied for a job with defendant in response to a newspaper ad. Following an oral interview that was part of the employment application process, plaintiff was hired by the defendant in June 1979 as a vault and payroll teller.
10. In 1981 plaintiff was one of 20 employees selected to participate in a special management training program for women and minorities. The program was instituted by the defendant pursuant to an EEOC consent decree to settle certain discrimination charges. The program covered most areas of banking operations and management. As part of the selection process for the program, plaintiff was interviewed orally. One of the selection criteria was that the applicant was to describe a realistic training goal. Plaintiff's stated goal was to be trained as a loan officer.
11. In May 1981 the defendant awarded plaintiff with certificates for successful completion of teller training programs called the "Tel-Five Training Program" and the "Customer Satisfaction Program," and in June 1982 plaintiff successfully passed an American Institute of Banking course in Effective English.
12. In August 1982 plaintiff was transferred to the defendant's Consumer Credit Department, as a "Loan Coordinator," working first with student loans and then with other kinds of consumer credit. The Loan Coordinator position had a salary level of "grade 9" under the defendant's structure of graded job levels. Plaintiff's salary level remained at grade 9 throughout the rest of his employment with the defendant.
13. From time to time plaintiff's supervisors filled out formal written "performance appraisals" of him. In a June 1983 performance appraisal his supervisor indicated that plaintiff was "now" qualified to advance to a lending officer (grade 14) or operations supervisor position. In July 1984 his supervisor wrote that "with your operations and lending background, you are qualified to advance to a consumer lending officer [or] operations supervisor position, . . ."
"Phanna is a very hardworking individual who's [sic] quantity and quality of work is always high. Besides being an excellent worker, he works well with both staff and customers. His personality and sense of humor is a welcome respite in the often stressful and high volume area of student loans. He is a definite asset to the department."
15. In a written performance appraisal in November 1985 his supervisor wrote, in describing a position that plaintiff was "now" qualified to advance to, as follows: "With his experience in student loans and currently; a position I would recommend: Credit Authorizer." The Credit Authorizer position had a grade 11 salary level. His supervisor also indicated that with continued job experience and development plaintiff could advance to a Loan Officer (grade 14) position.
16. The written performance appraisals of other employees promoted to positions plaintiff applied for contained comments for how the particular employee could improve his or her performance. The performance appraisals of plaintiff recited that he had problems with oral communication and recommended that he take English classes.
17. In March 1986 plaintiff began filling in from time to time as a Credit Authorizer, and from the beginning of June 1986 until the end of the year he "filled in" virtually full time as a Credit Authorizer, except for limited periods when he was assigned to the "Fair Isaac" credit scoring program. Although plaintiff "filled in" as a Credit Authorizer (grade 11) for most of 1986, defendant continued to pay him at a grade 9 salary level. In the fall of 1986 plaintiff expressed continuing interest in being promoted to the next Credit Authorizer position that became available. At that time his supervisor, Wanda Judd, told him he would be promoted automatically to that position when it next became available. Although his supervisor in 1986 had promised him that he would be promoted "automatically" as soon as the next Credit Authorizer position became available, when the Credit Authorizer position was filled permanently in early 1987 the promotion went to someone less qualified than plaintiff.
18. The absenteeism constituting the major complaint by one of plaintiff's supervisors, Wanda Judd, in her written performance appraisal of plaintiff for the period November 1985 to February 1987 occurred during the time plaintiff was becoming depressed and consequently physically ill from the defendant's failure to promote him.
19. On one occasion a managerial level supervisor threw plaintiff's application for a promotion, or his resume, into his wastebasket as soon as plaintiff left his office. On another occasion another managerial level supervisor told the plaintiff he would get the promotion he was seeking if he could "guarantee" that he could persuade everyone in Seattle's Cambodian community to become customers of the Bank; when plaintiff explained that it would be impossible for him to guarantee such a thing, the promotion went to someone else.
20. Plaintiff was well qualified for the job of Credit Authorizer (grade 11), Loan Officer (grade 14), and other positions for which he applied, despite his Cambodian accent. Not only did a number of his supervisors and fellow workers recognize this fact, but plaintiff actually performed the Credit Authorizer job – on a supposedly "fill-in" basis but actually on a virtually full-time basis – for most of 1986, yet the defendant refused to promote him to that position and continued to pay him at the lesser grade 9 salary level.
21. On numerous occasions from 1982 through 1985 plaintiff applied for promotion to various positions higher than grade 9 for which the defendant had openings, including the positions of Credit Authorizer and Loan Officer. The defendant did not promote plaintiff to any of these positions.
22. Defendant's reason for not promoting plaintiff to a Credit authorizer or Loan Officer position was because of Plaintiff's foreign accent. Although the plaintiff does have an accent, he clearly has a thorough comprehension of the English language. He can speak the English language and be understood, and he can understand what others tell him in English. Plaintiff's accent did not interfere materially with his job performance, nor would it have interfered materially with his job performance as a Credit Authorizer or Loan Officer if he had been promoted to such a position.
23. By refusing to promote plaintiff to the higher positions for which he applied or to which he was assured he would be promoted automatically, on the ground of his Cambodian accent, the defendant actually was discriminating against him on the basis of his national origin.
24. Plaintiff became a naturalized U.S. citizen in March 1986.
25. Beginning in late 1985, as a proximate result of being passed over repeatedly for promotions after being led to believe that he would be promoted, plaintiff began suffering severe emotional distress and severe depression, which in turn depressed his body's auto-immune system and caused him to suffer a number of debilitating illnesses, such as chronic active hepatitis, inflammation of the liver, Sjogren's Syndrome and Epstein-Barr Virus Syndrome. He began seeing doctors in many different specialties, including a psychiatrist, in an attempt to deal with the mental and physical problems resulting from the defendant's actions.
26. Plaintiff went on full disability leave from the defendant as of August 14, 1987. His disability from employment was proximately caused by the defendant's discriminatory actions.
27. Plaintiff's full disability from employment has continued from August 14, 1987 to the present. His disability will probably continue for another five years from the date of the court's oral decision, but with the course of medical treatment recommended by his psychiatrist he should be able to become employable again at that time.
«1» *The figures were handwritten in the original.
29. As a result of the defendant's discriminatory actions, plaintiff has lost five years of "future pay," that is, compensation he would have earned as a Credit Authorizer, for five years after the date of the court's oral decision, if he had not been disabled. The amount of this lost "future pay," adjusted for probable inflation and future wage increases and discounted to present value, including an estimated 15% markup for fringe benefits, is approximately $143,175.
30. As a result of the defendant's discriminatory actions, plaintiff will require a course of future medical and psychiatric treatment to deal with the health problems caused by the defendant and to return him to employable status. Such future medical and psychiatric treatment will cost approximately $15,000.
31. In addition to the foregoing damages representing lost back pay, lost future pay, and the course of future medical treatment, plaintiff's damages resulting from the defendant's discriminatory actions include a total of $50,000 for past, present and future severe mental distress and physical pain and suffering.
32. As determined by the court in a separate order awarding plaintiff attorney fees and expenses pursuant to RCW 49.60.030(2), pPlaintiff has incurred reasonable attorney fees in this action in the amount of $89,648.00* and reasonable expenses in the amount of $10,800.45*.


Alice Schlesinger, J. On September 29, 2000 Mark Schiffer met for the first time with an optometrist, Dr. Regina Zyszkowski, to determine whether he was a suitable candidate for LASIK surgery. He wore glasses at the time. Dr. Zyszkowski was an employee of Farkas, Kassalow, Resnick and Associates. She performed various tests on Mr. Schiffer's eyes, including a keratometry, a topography and a slit lamp exam. Because Dr. Zyszkowski noticed an irregularity in Mr. Schiffer's retina, she referred him to a retina specialist, Dr. Kenneth Carnevale. On or about October 3, 2000 she heard back from Dr. Carnevale that the planned LASIK surgery was not contraindicated. She then referred her patient to TLC Laser Eye Center and set up an appointment for the procedure for October 6. She testified at her deposition that she specifically wished the surgery to be done by Dr. Mark Speaker, but there is no evidence that that information was communicated to Mr. Schiffer. On the 6th, Mr. Schiffer appeared at TLC's offices (his first visit there) where he met with Dr. Speaker. He then underwent various tests by the doctor, signed a multi-page consent form and submitted that day to bilateral LASIK surgery by Dr. Speaker. Dr. Speaker is both the sole shareholder of his P.C., Laser and Corneal Surgery Associates, and Medical Director of TLC. In the latter capacity, for which he is paid $25,000 per year, his duties include administrative functions as well as those involved in the care and treatment of patients. After the surgery was performed, seemingly without complications, Mr. Schiffer made seven post-operative visits to Dr. Zyszkowski. On the final visit, on May 16, 2001, she noted some far-sightedness with astigmatism and discussed with him the possibility of a second "enhancement" surgery. Dr. Zyszkowski however first requested additional testing, specifically pachymetry and topography from Dr. William Tullo, an optometrist and Clinical Director of TLC, as well as Dr. Zyszkowski's former professor. Mr. Schiffer returned to TLC on June 5, 2001 and on that day was examined first by Dr. Tullo and then by Dr. Speaker. Both agreed that Mr. Schiffer had a thinning of the cornea, a condition known as ectasia, which made additional surgery unsound. The enhancement procedure [*2]was cancelled. Mr. Schiffer went on his way and never returned. However, Mr. Schiffer has now been diagnosed with Keratoconics, a degenerative condition of the cornea. He has sued all of the above-mentioned health care providers for injuries he has suffered allegedly from the October 6th LASIK surgery. This surgery, he claims, should never have been performed because of the Keratoconus, a condition he says was present before the surgery or could have been anticipated. He now suffers from impaired vision, particularly in his left eye where his vision is blurred and distorted. He has been advised that the only possible treatment would be corneal transplants. I have before me two substantive motions and one procedural one. First, defendant TLC is moving for summary judgment dismissing the two causes of action that make up the complaint, the first that sounds in negligence or medical malpractice, and the second which alleges a lack of informed consent. The only other defendant that takes a position on TLC's motion is Mark Speaker and his P.C., Laser & Corneal Surgery Associates. They partially oppose the motion, specifically that part of it which seeks to dismiss the aspect of the claim that asserts a theory of vicarious liability against them vis-a-vis the actions of Dr. Speaker. However, those defendants join in TLC's motion to dismiss the lack of informed consent claim via their own cross-motion. Not surprisingly, the plaintiff vigorously opposes both motions. On the procedural front, TLC is moving pursuant to CPLR §3124 for an order directing plaintiff to provide further identifying information for its expert witness pursuant to CPLR § 3101(d)(1)(I), or alternatively to preclude the plaintiff from offering the witness at trial. Dr. Speaker and his P.C. again join in this motion. Here, plaintiff not only opposes but cross-moves for a protective order, pursuant to CPLR §3101(d) and 3103(a), shielding the qualifications of his medical expert from further disclosure and also requiring defendants to enter into a confidentiality agreement vis-a-vis his tax returns and those of his employer, which this Court had previously ordered disclosed.
The Summary Judgment Motions It is TLC's contention in support of its summary judgment motion that Dr. Speaker, though having a relationship with them and performing surgery at their facility, was an independent contractor, thereby relieving TLC of any responsibility. They point out that Dr. Zyszkowski is not their employee either. Finally, they argue that TLC had nothing to do with Mr. Schiffer before his October 6 surgery and nothing to do with the decision to go ahead with that surgery. As to the lack of informed consent claim, both defendants point to the multi-page consent form Mr. Schiffer signed, at Dr. Speaker's request, before the surgery on October 6 and urge that such form clearly lays out all of the risks associated with the procedure and even gives the patient the opportunity to ask questions. In fact, they point out that on page 2 of the consent form (a page the plaintiff initialed as he did all pages), Section 3, concerning LASIK indications and contraindications, it states "candidates must be free of certain eye diseases including Keratoconus, glaucoma, cataracts and certain retinal optic nerve diseases." Therefore, defendants say that as a matter of law, it must be found that Mr. Schiffer had been adequately informed of the reasonably foreseeable risks of the surgery. Plaintiff's opposition consists of a physician's affirmation (redacted to retain his anonymity as will be discussed more fully later), certain exhibits concerning Dr. Speaker's relationship to TLC, and a memorandum of law. Their doctor, an ophthalmologist who performs these procedures, gives [*3]his opinion that Mr. Schiffer presented to the defendants, prior to the LASIK surgery, with form fruste Keratoconus, a condition that made the surgery contraindicated. Further, he points to testimony given by Dr. Speaker to the effect that Mr. Schiffer presented on October 6 with an anomalous inferior steepening of the cornea of his left eye. This, according to the expert, increased plaintiff's risks and made the LASIK surgery unwise. However, the patient was never given this information. Counsel for Mr. Schiffer points out the following vis-a-vis TLC and their relationship with the other defendants. First of all, the fee of $5500 paid by the plaintiff was divided in the following way: $1100 to the Farkas Group, $1100 to Dr. Speaker, and the remaining $3300 to TLC. Further, Dr. Speaker was a Corporate Director in TLC's Delaware affiliate and received stock in TLC, a publicly traded corporation. Also, he did all of his LASIK surgery at their facility and relies on them for his pre-op data. Finally, in Reply, TLC points out that Dr. Speaker's agreement vis-a-vis his Medical Directorship excludes seeing patients or practicing medicine. Therefore, they maintain they are not responsible for his activities when he does this work. Their agreement even contains a clause to that effect, they argue. TLC's motion is denied vis-a-vis both causes of action, as is Dr. Speaker's motion vis-a-vis the second cause of action relating to informed consent. First of all, agreements between parties are "not determinative of the relation [vis-a-vis third parties] in the event that the actualities indicate otherwise." Mduba v. Benedictine Hospital, 52 AD2d 450, 452 (Third Dept, 1976), quoting Matter of Fidel Assn. of NY, 259 App. Div. 486, 487 (Third Dept, 1940), aff'd 287 NY 626. Second, issues as to whether a medical practitioner is truly an independent contractor as opposed to an employee are traditionally issues of fact best left to be decided at trial. Campanelli v. Flushing Ultrasound, 287 AD2d 428 (Second Dept, 2001), lv. dismissed 98 NY2d 692 (2002); Felice v. St. Agnes Hospital, 65 AD2d 388 (Second Dept, 1978). Finally, pursuant to the theory of ostensible agency, wherein a patient such as the plaintiff here comes to a facility for services and is provided those services by a doctor at the facility and has no reason to suspect or believe the doctor is not working for the facility, rather than simply at it, that facility can be held responsible for the conduct of the doctor. Hylton v. Flushing Hospital and Medical Center, 218 AD2d 604 (First Dept, 1995), lv. den. 87 NY2d 807 (1996); Soltis v. State of New York, 172 AD2d 919 (Third Dept, 1991). As to the informed consent issue, the expert opines that all the risks specifically affecting Mr. Schiffer, including the steepening of the cornea of his left eye, should have been told to him and were not. This opinion, at the least, creates an issue of fact, despite the signed consent form, that he may not have been given all the necessary information. Eppel v. Fredericks, 203 AD2d 152 (First Dept, 1994).


Full Case Name: IN RE: MARLIN U. ZARTMAN D/B/A GILBERTSVILLE SALES STABLES.
Country of Origin: United States Court Name: UNITED STATES DEPARTMENT OF AGRICULTURE (U.S.D.A.) Primary Citation: 44 Agric. Dec. 174 (1985) Date of Decision: Wednesday, February 27, 1985 Judge Name: Dorothea A. Baker, Administrative Law Judge Jurisdiction Level: Federal Alternate Citation: 1985 WL 62917 (U.S.D.A.) Judges: Dorothea A. Baker Administrative Law Judge Attorneys: Robert A. Ertman, for complainant. Dennis L. O'Connell, Gilbertsville, Pennsylvania, for respondent. Docket Num: AWA Docket No. 259.
Summary: Secretary is authorized to promulgate standards applicable to operator of auction sale as to care, treatment, housing, feeding, watering, and sanitation of animals, since literal language of 7 USCS § 2142 and its legislative history gives Secretary broad authority to impose on auction operator standards of humane handling of all animals subject to Animal Welfare Act, and although construing word "handling" in § 2143 broad enough to include those areas would nullify significance and effect of additional terms, contemporaneous construction of Act by administrative officials charged with responsibility for achieving congressional purpose of ensuring humane care and treatment of animals indicates Secretary has authority to impose such standards on auction operators.
This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. § 2131 et seq.), and the regulations and standards issued thereunder (9 CFR § 1.1 et seq.). On December 19, 1984, Administrative Law Judge Dorothea A. Baker (ALJ) issued an initial decision and order dismissing the complaint.
Based upon a careful consideration of the entire record, I believe that the complaint should be dismissed, but for different reasons than those expressed by the ALJ.
1. Marlin U. Zartman, d/b/a Gilbertsville Sales Stables, is an individual whose mailing address is Marlin U. Zartman, 355 Tolegate Road, Douglassville, PA 19519.
2. At all times material herein, respondent was an operator of an auction sale under the Animal Welfare Act, as amended, and was licensed under the Animal Welfare Act, as amended, as a Class B dealer.
3. At the time respondent's license No. 23 CE was issued on May 31, 1972, respondent received a copy of the regulations and standards contained in Title 9, Chapter 1, Subchapter A, of the Code of Federal Regulations and agreed to comply with said regulations and standards.
A. In an area under respondent's bleachers where dogs were held, no light was installed, and insufficient lighting existed to permit proper, routine inspections. This condition was also noted in an inspection on December 18, 1982.
B. Some primary enclosures (cages) were not structurally sound and maintained in good repair in that some cages holding rabbits had wire ends sticking inside, rusty floors, or missing parts of the backs. This condition was also noted in an inspection on December 18, 1982, as were similar conditions involving some cages holding dogs, cats, and guinea pigs.
C. One primary enclosure (consisting of two cages combined) holding four puppies did not allow sufficient space for the animals to make normal postural adjustments. A similar condition was noted in an inspection on December 18, 1982, involving two cages for rabbits.
If § 12 of the Act is read by itself, no serious question is presented as to the Secretary's authority. That is, the authority given to the Secretary to promulgate humane standards governing the "handling" of animals by operators of auction sales would clearly authorize the standards at issue here.
§ 2.100 Compliance with standards.
(a) Each dealer, exhibitor, operator of an auction sale, and research facility shall comply in all respects with the standards set forth in Part 3 of this subchapter setting forth the standards for the humane handling, care, treatment, and transportation of animals. . . .
**3 The "standards set forth in Part 3 of this subchapter" are the standards that are involved in this case (9 CFR § 3.1 et seq.). Hence, pursuant to the authority in § 12 of the Act, the Secretary has prescribed *177 broad and exacting standards, applicable to all animals subject to the Act, that must be complied with by auction operators.
Section 13.-This section [i.e., § 12 of the Act] would also authorize the Secretary to license the operators of auction sales, where any dogs or cats are sold and such sales are affecting commerce. In addition, the section would extend the recordkeeping and standards of humane handling under the Act to the purchase, handling, and sale of animals, as defined in the bill, rather than only dogs or cats, at auction sales by dealers, research facilities, exhibitors and by the operators of the auction sales.
Hence it would appear from the literal language of § 12 and its legislative history that § 12 gives the Secretary broad authority to impose on auction operators standards of humane handling of all animals subject to the Act.
**4 In § 13 of the Act, quoted immediately above, it would appear that the word "handling" is used in a manner that does not include "care," "treatment," "housing," "feeding," "watering," "sanitation," "ventilation," "veterinary care," and "shelter from extremes of weather and temperatures." To construe the word "handling" in § 13 of the Act as broad enough to include all of such other terms would make the additional terms in § 13 surplusage. "No rule of statutory construction has been more definitely stated or more often repeated than the cardinal rule that 'significance and effect shall, if possible, be accorded to every word. As early as in Bacon's Abridgment, sect. 2, it was said that "a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.""' Ex Parte Public Nat'l Bank of NY, 278 U.S. 101, 104 (1928).
Nonetheless, this is remedial legislation "to insure that animals . . . are provided humane care and treatment" (7 U.S.C. § 2131(1)), and it has been the settled and contemporaneous construction of the Act by the administrative officials charged with the responsibility for achieving the congressional purpose that the Secretary has authority to impose on auction operators the standards involved in this proceeding. Although the issue is not free from doubt, I believe that the Secretary acted within his statutory authority.
(c) Lighting. Indoor housing facilities for dogs or cats shall have ample light, by natural or artificial means, or *179 both, of good quality and well distributed. Such lighting shall provide uniformly distributed illumination of sufficient light intensity to permit routine inspection and cleaning during the entire working period. Primary enclosures shall be so placed as to protect the dogs or cats from excessive illumination.
Q. NOW, YOU HEARD THE TESTIMONY THAT THERE WAS NO LIGHT IN THE AREA UNDER THE BLEACHERS AT THE TIME OF THE VISIT BY DOCTOR SANZ. IS THAT CORRECT?
Q. DID YOU SUBSEQUENTLY HAVE A LIGHT INSTALLED IN THAT AREA?
A. YES. IMMEDIATELY AFTER HER LAST INSPECTION THERE WAS TWO FEDERAL INSPECTORS CAME DOWN TO CHECK IT AND OKAYED IT.
Accordingly, the undisputed evidence proves that respondent violated the lighting standard, as alleged in the complaint.
**5 15. The evidence in this proceeding is that there were no cats held under the bleachers but that there were dogs under the bleachers which bleachers were sealed in to assure the safety of the dogs. The prior inspector, Dr. Moore, advised Respondent to put dogs there. The cages used under the bleachers were of a mobile nature. At the time of the inspection, none of the investigators asked that the mobile cages be moved out and they did inspect the area with flashlights. Although at the time of Dr. Sanz's investigation, February 26, 1983, there was no light under the bleachers, the Respondent subsequently had a light installed in order to satisfy Dr. Sanz's criticism. At the time of the inspections by the government inspectors, they were *180 given free access to go under the bleachers and look at the animals and the government inspectors carried flashlights with them. The dogs were held there for only a short time. The Complaint does not allege and the evidence does not indicate that the animals under the bleachers were in any way mistreated; the crux of the alleged violation was that there was no light. The Regulations and Standards do not specifically require a light. It is noted that most human beings spend part of a 24 hour period in the dark (when they are asleep) and without having any specific requirement for a light, this does not constitute a violation of the Regulations and Standards. It is not known whether airlines and railroads are required to have lights in their transportation facilities for animals. However, it is noted that the Respondent has sought to be fully cooperative with the government inspectors, and when this matter was brought to his attention, he did install a light.
16. Dr. Sanz also admitted that she was able to see the animals in this area for inspection purposes through use of a flashlight. It was established that the animals were in mobile cages, but that neither Dr. Sanz or Kenneth Swartz, the APHIS Compliance Officer, who accompanied her on February 26, 1983, requested auction personnel to roll out the cages to get a better look at them. Mr. Swartz further admitted that there was nothing wrong wth keeping dogs in the area under the bleachers so long as light was provided.
17. It was established, through photographic evidence, that lighting was subsequently installed in the area in question.
18. Respondent testified, without contradiction, that no federal inspector, prior to the visits by Dr. Sanz in December, 1982 and February 1983, had ever told him that he had to install lights under the bleachers. That fact is also reflected by the earlier APHIS inspection sheets relating to Respondent's facility. No violation of 9 CFR 3.2 has been shown.
Although as noted by the ALJ, the regulations and standards "do not specifically require a light," they specifically require "ample light, by natural or artificial means, or both, of good quality and well distributed," which "shall provide uniformly distributed illumination *181 of sufficient light intensity to permit routine inspection and cleaning" (9 CFR § 3.2(c)). That standard was clearly violated.
**6 However, the record indicates that this was not a serious violation. There is no indication that the requirement for adequate lighting is to prevent the animals from experiencing fear or stress, but, rather, to permit adequate inspection and cleaning. Moreover, the violation was not regarded as of sufficient importance to warrant mentioning by a number of Department inspectors.
(a) General-(1) Requirements for primary enclosures for dogs and cats. (i) Primary enclosures shall be structurally sound and maintained in good repair to protect the dogs and cats from injury, to contain them, and to keep predators out.
(a) General. (1) Primary enclosures shall be structurally sound and maintained in good repair to protect the guinea pigs and hamsters from injury.
(a) General. (1) Primary enclosures shall be structurally sound and maintained in good repair to protect the rabbits from injury, to contain them, and to keep predators out.
The undisputed evidence shows that on December 18, 1982, and February 26, 1983, some of respondent's cages had wire ends sticking inside, rusty floors, or missing parts of the backs. There is no evidence that any animals were injured as a result of this deficiency, *182 but there was a slight possibility (but not a real likelihood) of injury.
The undisputed evidence also shows that respondent was attempting in good faith to maintain the structural soundness of his cages, that some persons had broken into some of the cages in order to remove animals, that he was in the process of repairing the cages, and, in fact, had sufficient sound cages by the time of the second inspection that all of the animals subject to the Act could have been housed in sound cages. Respondent had instructed his employee to place the animals involved here in sound cages, but due to employee error, some of the animals subject to the Act were placed in unsound cages. That employee was subsequently removed from his position.
Considering all of the evidence in this case, including photographic evidence, the violations of this standard were trifling in nature.
(b) Space requirements-(1) Dogs and cats. Primary enclosures shall be constructed and maintained so as to provide sufficient space to allow each dog and cat to turn about freely and to easily stand, sit and lie in a comfortable normal position.
**7 (b) Space requirements. Primary enclosures shall be constructed and maintained so as to provide sufficient space for the animal [i.e., rabbit] to make normal postural adjustments with adequate freedom of movement.
The evidence shows that on December 18, 1982, two cages for rabbits did not permit the rabbits to make normal postural adjustments with adequate freedom of movement, and on February 26, 1983, one enclosure (consisting of two cages combined) holding four puppies was not quite large enough to permit the animals to make normal postural adjustments.
The evidence, including photographs of the enclosure holding the four puppies, indicates that the enclosures did not quite meet the space requirements, but that the space was adequate to prevent any serious inconvenience or stress to the animals.
*183 (a) Programs of disease control and prevention, euthanasia, and adequate veterinary care shall be established and maintained under the supervision and assistance of a doctor of veterinary medicine.
The evidence shows that respondent established and maintained a program of disease control and prevention under the supervision and assistance of a doctor of veterinary medicine. Dr. John Patt, a veterinarian licensed by the State of Pennsylvania, attends every sale at respondent's auction. No animals are held overnight at respondent's auction, which is held every Saturday beginning at 7:00 p.m. Most animals arrive Saturday afternoon after 3:00 p.m., although some animals arrive Saturday morning. Dr. Patt arrives at about 4 o'clock or 4:30 p.m. every Saturday and checks each animal for any symptoms of sickness. If an animal has any symptoms of sickness, he tags the cage so that the animal will not be sold, and the animal is returned to the owner.
Complainant contends that respondent violated the veterinary care standard because several sick cats were accepted for sale by respondent's employee on February 26, 1983, and several sick dogs and cats were accepted for sale on December 18, 1982. There is no contention by complainant that Dr. Patt would not have detected such animals during his routine examination prior to sale, but complainant contends that respondent's employee should not have accepted the animals in the first place.
Respondent had instructed his employee not to accept any sick animals and, after learining that this employee had accepted several sick animals, respondent removed him from that position.
Complainant apparently believes that the program of disease control and prevention established and maintained by an auction operator must be perfect, at least insofar as preventing the receipt of any animal which could be diagnosed by a layman as sick. However, the standard is not drafted in terms of perfection. No requirement of excellence or perfection is expressed in the standard. Assuming that the rule of reason can be read into the standard, it is not unreasonable for an employee occasionally to miss a few animals that should have been rejected, particularly where a veterinarian later checks each animal to insure that no sick animal will be sold.
**8 If complainant wants to require perfection in the exclusion of animals that could be determined to be sick by a layman, complainant will have to rewrite the standard to impose such a requirement. As long as the regulation merely requires that a program of disease control and prevention be established and maintained under the supervision and assistance of a doctor of veterinary *184 medicine, where, as here, such a program is established in good faith, no violation will be established merely by proof that an employee inadvertently received a few sick animals (which presumably would have been detected by the veterinarian).
Even if the regulation were rewritten, as referred to above, the violations in this case would have been regarded as trivial.
If potable water is not accessible to the dogs and cats at all times, potable liquids shall be offered to such animals at least twice daily for periods of not less than 1 hour, except as might otherwise be required to provide adequate veterinary care. Watering receptacles shall be kept clean and shall be sanitized at least once every 2 weeks.
Complainant contends that this standard was violated, or, in the alternative, that the standards relating to facilities (9 CFR § 3.1) or primary enclosures (9 CFR § 3.4) were violated, because on February 26, 1983, several watering receptacles for dogs and cats had sharp, chipped edges.
However, there is nothing in 9 CFR § 3.1, .4, or .6 that expressly, or by implication, prohibits watering receptacles with chipped edges. Perhaps the standards should be amended to impose such a requirement. But in view of the detailed and extensive nature of the standards that have been promulgated, additional requirements cannot be added by implication.
Here, again, even if the standards were rewritten, as referred to above, the violations in this case would have been regarded as trivial.
If the Secretary has reason to believe that any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter, or any of the rules or *185 regulations or standards promulgated by the Secretary hereunder, he may suspend such person's license temporarily, but not to exceed 21 days, and after notice and opportunity for hearing, may suspend for such additional period as he may specify, or revoke such license, if such violation is determined to have occurred.
However, the violations detected on both dates were of a trivial nature, not posing any serious threat to the well-being of the animals. *186 Respondent has been in the animal auction business for about 32 years, and, except for the trivial violations involved here, respondent had a long, unblemished record of compliance with federal and state requirements applicable to his animal auction. There is nothing in this record that indicates the need for any type of disciplinary order as to respondent for the trivial violations found here.
Parties involved in disciplinary proceedings before this Department are not only permitted, but encouraged, to introduce evidence indicating why the violations involved in a particular proceeding are serious, and the type of disciplinary order that is warranted in the particular proceeding. [FN4] Complainant introduced no such evidence. In addition, the testimony and photographs in this case fail to reveal any serious violations warranting the imposition of a sanction. Accordingly, the complaint should be dismissed.
FN1. The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1068 (1982). The Department's present Judicial Officer was appointed in January 1971, having been involved with the Department's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' appellate litigation relating to appeals from the decisions of the prior Judicial Officer; and 8 years as administrator of the Packers and Stockyards Act regulatory program).
FN2. As noted by complainant, the Department has consistently construed the term "dealer" to include "auction operators." However, to say the least, some ambiguity arises from the fact that § 12 of the Act applies, inter alia, to "dealers" and "operators of such auction sales," whereas § 13 applies expressly to "dealers," but not to operators of auction sales.
FN3. In determining whether violations occurred and what sanctions should be imposed for violations, the licensee is responsible for the acts of his employees. In re Esposito, 38 Agric. Dec. 613, 621 (1979).
FN4. In re Peterman, 42 Agric. Dec._____(Dec. 12, 1983), appeal docketed, No. 84-1053 (10th Cir. Jan. 13, 1984); In re Hatcher, 41 Agric. Dec. 662, 669 n.3 (1982); In re Rowland, 40 Agric. Dec. 1934, 1950 n.9 (1981), aff'd, No. 82-3015 (6th Cir. July 13, 1983); In re King Meat Co., 40 Agric. Dec. 1910, 1919 (1981) (order denying reopening), aff'd, No. CV 81-6485 (C.D. Cal. Oct. 20, 1982), appeal docketed, No. 82-6029 (9th Cir. Nov. 12, 1982); In re Baltimore Tomato Co., 39 Agric. Dec. 412, 416 (1980); In re Esposito, 38 Agric. Dec. 613, 656-63 (1979); In re National Meat Packers, Inc., 38 Agric. Dec. 169, 177 n.6 (1978); In re Loretz, 36 Agric. Dec. 1087, 1096 (1977); In re Christ, 35 Agric. Dec. 195, 203 n.8 (1976); In re Overland Stockyards, Inc., 34 Agric. Dec. 1808, 1854-55 (1975); In re Speight, 33 Agric. Dec. 280, 310-13 (1974); In re Miller, 33 Agric. Dec. 53, 80, aff'd per curiam, 498 F.2d 1088, 1089 (5th Cir. 1974); In re Professional Commodity Serv., Inc., 32 Agric. Dec. 585, 586-91 (remand order), second remand order, 32 Agric. Dec. 592 (1973), final decision, 33 Agric. Dec. 14 (1974); In re Andrews, 32 Agric. Dec. 553, 579 (1973); In re Sy B. Gaiber & Co., 31 Agric. Dec. 474, 505 n.20, reconsideration denied, 31 Agric. Dec. 843, 847-50 (1972); In re American Fruit Purveyors, Inc., 30 Agric. Dec. 1542, 1596 n.39 (1971).


Defendant Shavlovsky appealed her conditional Release Order (Dkt Nos. 25, 27 30), challenging the constitutionality of the condition that she cooperate in the collection of her DNA sample as a condition of release. Tuzman, who was subjected to the same condition of release, joined in Shavlovsky's appeal. Dkt. No. 42. The court declined to reach the constitutional question because neither defendant was "in custody," and therefore the condition no longer applied, pursuant to U.S. v. Baker, 658 F.3d 1050, 1057 (9th Cir. 2011). The release order was amended to delete the DNA cooperation condition.
Defendant Tuzman's DNA sample was taken by a Deputy U.S. Marshal in the morning hours of September 30, 2011. See Garcia Decl. (Dkt. No. 76) ¶ 2 (Tuzman's DNA swab was taken at 8:00 am on September 30, 2011). At the time, defendant had been placed under arrest, he was held "in custody" by the U.S. Marshal Service, and his arraignment would occur later that afternoon before Magistrate Judge Newman. It appears that the "compelled" taking of Tuzman's DNA sample was carried out pursuant to 28 C.F.R. § 28.12(b) (implementing 42 U.S.C. § 14135a(a)(1)(A)), which mandates that the agency that "detains individuals ... facing charges" take an arrestee's DNA sample, and apparently authorizes the use of force if necessary. See 28 C.F.R. § 28.12(d) ("Agencies required to collect DNA samples under this section may use ... such means as are reasonably necessary to detain, restrain and collect a DNA sample from an individual described in paragraph ... (b) of this section who refuses to cooperate in the collection of the sample").
Because there was some uncertainty about whether the sample was actually taken or not, the court ordered the government to clarify the situation. The government has now filed a sworn declaration confirming that a Deputy U.S. Marshal collected a DNA sample from Tuzman "in compliance with processing procedures." Dkt. No. 76 ¶ 2. According to the declaration, the sample is in a "locked cabinet," and "has not been submitted to the FBI or a database." Dkt. No. 76 ¶ 3.
1. The briefing of all parties that has already been submitted on co-defendant Shavlovsky's appeal of the conditional Release Order — which required Shavlovsky to cooperate in the collection of her DNA sample, and which was joined by Tuzman — is already before the court and need not be re-submitted and will be considered in connection with Tuzman's motion to compel the return of his DNA sample. Any party wishing to submit supplementary briefing shall do so not later than two weeks from the date of this order.
This requirement is imposed by 18 U.S.C. § 3142(b), which provides that when an arrestee is to be released pre-trial, whether on "personal recognizance," pursuant to an "unsecured appearance bond" as in this case, or "on conditions," the Magistrate Judge must impose, as a condition of release, the requirement that the arrestee "cooperate in the collection of a DNA sample ... if the collection of such sample is authorized pursuant to ... 42 U.S.C. § 14135a." 18 U.S.C. § 3142(b) (c)(1)(A).
2. Tuzman's motion for return of his DNA sample (Dkt. No. 21), is hereby specially set for oral argument, on Wednesday, December 21, 2011 at 10:00 am.


D.C. Law Library - § 29–1124. Dissolution.
§ 29–1123. Reimbursement; indemnification; advancement of expenses.
§ 29–1125. Winding up and termination.
(b) After dissolution, an unincorporated nonprofit association continues in existence until its activities have been wound up and it is terminated pursuant to § 29-1125.
This section is referenced in § 29-1112.
Uniform Law: This section is based on § 28 of the Uniform Unincorporated Nonprofit Association Act (2008 Act).


text:
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