1.(1) If the Director receives from a licensee or permittee the names and appropriate identifying information of responsible persons and employees who will be authorized by the employer to possess explosive materials in the course of employment with the employer, the Director will conduct a background check in accordance with this section.
2.(2) The Director will determine whether the responsible person or employee is one of the persons described in any paragraph of section 842(i) of the Act (see § 555.26). In making such determination, the Director may take into account a letter or document issued under paragraph (a)(3) of this section.
i.(i) If the Director determines that the responsible person or the employee is not one of the persons described in any paragraph of section 842(i) of the Act (see § 555.26), the Director will notify the employer in writing or electronically of the determination and issue, to the responsible person or employee, as the case may be, a letter of clearance which confirms the determination.
ii.(ii) If the Director determines that the responsible person or employee is one of the persons described in any paragraph of section 842(i) of the Act (see § 555.26), ATF will notify the employer in writing or electronically of the determination and issue to the responsible person or the employee, as the case may be, a document that confirms the determination; explains the grounds for the determination; provides information on how the disability may be relieved; and explains how the determination may be appealed. The employer will retain the notification as part of his permanent records in accordance with § 555.121. The employer will take immediate steps to remove the responsible person from his position directing the management or policies of the business or operations as they relate to explosive materials or, as the case may be, to remove the employee from a position requiring the possession of explosive materials. Also, if the employer has listed the employee as a person authorized to accept delivery of explosive materials, as specified in § 555.103 or § 555.105, the employer must remove the employee from such list and immediately, and in no event later than the second business day after such change, notify distributors of such change.
1.(1) In general. A responsible person or employee may challenge the adverse determination set out in the letter of denial, in writing and within 45 days of issuance of the determination, by directing his or her challenge to the basis for the adverse determination, or to the accuracy of the record upon which the adverse determination is based, to the Director. The appeal request must include appropriate documentation or record(s) establishing the legal and/or factual basis for the challenge. Any record or document of a court or other government entity or official furnished in support of an appeal must be certified by the court or other government entity or official as a true copy. In the case of an employee, or responsible person who did not submit fingerprints, such appeal must be accompanied by two properly completed FBI Forms FD-258 (fingerprint card). The Director will advise the individual in writing of his decision and the reasons for the decision.
2.(2) Employees. The letter of denial, among other things, will advise an employee who elects to challenge an adverse determination to submit the fingerprint cards as described above. The employee also will be advised of the agency name and address that originated the record containing the information causing the adverse determination (“originating agency”). At that time, and where appropriate, an employee is encouraged to apply to the originating agency to challenge the accuracy of the record(s) upon which the denial is based. The originating agency may respond to the individual's application by addressing the individual's specific reasons for the challenge, and by indicating whether additional information or documents are required. If the record is corrected as a result of the application to the originating agency, the individual may so notify ATF which will, in turn, verify the record correction with the originating agency and take all necessary steps to contact the agency responsible for the record system and correct the record. The employee may provide to ATF additional and appropriate documentation or record(s) establishing the legal and/or factual basis for the challenge to ATF's decision to uphold the initial denial. If ATF does not receive such additional documentation or record(s) within 45 days of the date of the decision upholding the initial denial, ATF will close the appeal.
3.(3) Responsible persons. The letter of denial, among other things, will advise a responsible person of the agency name and address which originated the record containing the information causing the adverse determination (“originating agency”). A responsible person who elects to challenge the adverse determination, where appropriate, is encouraged to apply to the originating agency to challenge the accuracy of the record(s) upon which the denial is based. The originating agency may respond to the individual's application by addressing the individual's specific reasons for the challenge, and by indicating whether additional information or documents are required. If the record is corrected as a result of the application to the originating agency, the individual may so notify ATF which will, in turn, verify the record correction with the originating agency and take all necessary steps to contact the agency responsible for the record system and correct the record. A responsible person may provide additional documentation or records as specified for employees in paragraph (b)(2) of this section.
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Next section - § 555.34 Replacement of stolen or lost ATF Form 5400.30 (Intrastate Purchase of Explosives Coupon (IPEC)).
Why is it necessary to provide new and additional information on responsible persons and employee possessors of explosives?


1. Plaintiff Todd J. Jay challenges the determination of an Administrative Law Judge (“ALJ”) that he is not disabled within the meaning of the Social Security Act (“the Act”). Plaintiff alleges that he has been disabled since September 1, 2011, due to (1) anxiety disorder, (2) depressive disorder, (3) bipolar disorder, (4) degenerative disc disease, (5) tinnitus, and (6) shoulder problems. Plaintiff contends that his impairments render him unable to work, and thus, that he is entitled to disability benefits under the Act.
2. Plaintiff filed an application for disability benefits and supplemental security income on February 21, 2013, which the Commissioner denied on June 7, 2013. Plaintiff thereafter requested a hearing before an ALJ. On April 20, 2015, ALJ Sharon Seeley held a hearing at which Plaintiff appeared with counsel and testified. At the time of the hearing, Plaintiff was 56 years old, had at least a high school education, and was able to communicate in English. The ALJ considered the case de novo and, on August 19, 2015, issued a written decision denying Plaintiff's application for benefits. The Appeals Council denied Plaintiff's request for review on December 7, 2016. Plaintiff filed the current action on January 20, 2017, challenging the Commissioner's final decision.
3. On July 31, 2017, Plaintiff filed a Motion for Judgment on the Pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. (Docket No. 11.) On September 28, 2017, the Commissioner filed a Motion for Judgment on the Pleadings. (Docket No. 13.) Plaintiff filed a reply on October 23, 2017 (Docket No. 14), at which time this Court took the matter under advisement without oral argument. For the following reasons, Plaintiff's motion is granted, and Defendant's motion is denied.
4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence amounts to “more than a mere scintilla, ” and it has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
5. “To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained “even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's].” Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference and will not substitute “its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.” Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled under the Act. See 20 C.F.R. §§ 404.1520, 416.920. The Supreme Court of the United States recognized the validity of this analysis in Bowen v. Yuckert, and it remains the proper approach for analyzing whether a claimant is disabled. 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987).
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original); see also 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
8. Although the claimant has the burden of proof on the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step is divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983).
10. Plaintiff first argues that the ALJ erred by not properly considering Medical Listing 12.04 for Affective Disorders. Specifically, Plaintiff contends that the ALJ inconsistently found that he has moderate limitations in social functioning at Step 3, but then finding in the RFC that he can have only “occasional interaction with supervisors; and occasional, incidental interaction with co-workers and the general public.” (R. at 24-25.) Plaintiff maintains that this inconsistency warrants remand for reconsideration at Step 3, because the RFC restrictions, particularly only incidental interaction with co-workers and the public, exceed a “moderate limitation” finding.


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Mike is the father of three adult children and enjoys reading Pacific Northwest and American history. He is also an experienced umpire who officiates youth, high school, and adult baseball games, so it’s probably not a good idea to argue with him.
When disaster struck at a public utility district’s hydro-electric generation facility, the district’s London-based Difference in Conditions insurers and their national counsel turned to us for help with the coverage, damage, and priority issues that arose when claims for the loss were made under both DIC coverage and all-risk property insurance coverage. We helped shepherd the matter through declaratory judgment litigation in federal court in the Western District of Washington, a multi-week formal appraisal hearing, and an appeal to the Ninth Circuit Court of Appeals, resulting in a complete vindication of our clients’ coverage positions.
A national industrial insurer provided umbrella liability coverage to a local solvents processor who was liable for pollution claims under the Model Toxic Controls Act. Near the end of a long and complicated course of claims, litigation, remediation, and other activity, the umbrella insurer was faced with competing claimants to its near-exhausted coverage limits, as well as allegations of extra-contractual liability from several competing insureds and purported insureds. The umbrella insurer turned to us for assistance, which took the form of immediately filing an interpleader and declaratory judgment action in federal court to resolve the competing claims to coverage and to head off further allegations of wrongdoing. With that in place, we then were able to resolve the remaining claims in a comprehensive mediation ordered by the court.
An employee of a local construction company drove a company truck to various job sites, and also to and from home each day. The employee took the truck to his church’s camp one summer, and while there allowed another person at camp to drive the truck. When that driver hit a young boy, the family of the boy, the personal insurer of the driver, and the personal insurer of the employee all looked to our client, the liability insurer of the construction company that owned the truck, to provide primary coverage. We were able to obtain a ruling that, regardless of the employee having granted permission to the driver, our client owed no coverage under the terms of its policy because its insured, the construction company itself, had not expressly or impliedly given permission to the driver to drive the truck.
Mike Ricketts also devotes a substantial portion of his practice to appeals. Representative appellate cases in which he was involved include the following decisions: Braaten v. Saberhagen Holdings, et al., 165 Wn.2d 373, 198 P.3d 493. Ambach v. French, 141 Wn. App. 782; 173 P.3d 941. Wilcox v. Lexington Eye Institute, 130 Wh. App. 234, 122 P.3d 729. Olympic Pipe Line Co. v. Pacific Employers Ins. Co., 128 Wn.App. 1003, 2005 WL 1406125. Spokane County v. Specialty Auto and Truck Painting, Inc., 153 Wn.2d 238, 103 P.3d 792. Olympic Pipe Line Co. v. Somerset Marine, Inc., 124 Wn. App. 1004. Puget Sound Energy, Inc. v. Alba General Ins. Co., 149 Wn.2d 135, 68 P.3d 1061. Port of Seattle v. Lexington Ins. Co., 111 Wn. App. 901, 48 P.3d 334. M. A. Mortenson Co., Inc. v. Timberline Software Corp., 140 Wn.2d 568, 998 P.2d 305, 41 UCC Rep. Serv.2d 357. Aluminum Co. of America v. Aetna Casualty & Surety Co., 140 Wn.2d 517, 998 P.2d 856. Hillhaven Properties, Ltd. v. Sellen Constr. Co., Inc., 133 Wn.2d 751, 948 P.2d 796. Sunbreaker Condominium Assoc. v. Travelers Ins. Co., 79 Wn. App. 368, 901 P.2d 1079.

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Long-range persistence of elevation and relief values along the Continental Divide in the Conterminous U.S.
Department of Geology, Ball State Univ., Muncie, IN 47306 U.S.A.
Rocky Mountain Consultants, 825 Delaware Ave. Suite 500, Longmont, CO 80501 U.S.A.
We have collected a variety of elevation and relief values for 336 points (measurement stations) spaced at 10 km linear intervals along the U.S. Continental Divide extending from Mexican to Canadian border. The information was derived from 1:100,000 topographic quadrangles, with vertical resolution on the order of map contour intervals (20-50 m). These compiled measures can be treated as sequential data sets and tested for self-affine characteristics by rescaled range (R/S) analysis. Results show a good fit to the self-affine model for all measures tested, with sample intervals of 5 to 336 stations.
Elevation data series for the Continental Divide crest yield very uniform, low D values in the approximate range 1.02-1.04. This indicates a very high degree of persistence in values, with consistent self-affine character bridging the scales of mountain range segments, entire ranges, and full physiographic provinces. Among the measures there is slightly higher persistence for minimum Divide elevation within 5 km radius of station, than for station point elevation or maximum Divide elevation within 5 km.
Various local relief statistics also show significant long-range persistence along the Divide, although with D values consistently higher than obtained for elevation series. Among the statistics, relatively low fractal dimension values (approx. 1.05) indicate very high along-divide persistence for overall relief measures, including relief from Divide station to lowest point within 10 km radius, and maximum relief available within 5 km. The least persistence (D range 1.12-1.18) is indicated for more subtle relief along the Divide crest within 5 km of station, and relief in the immediate vicinity of the Divide, from station to lowest point within 1 km radius.
Unlike Continental Divide elevation series and associated overall relief measures, the more subtle Divide relief statistics, with their reduced degree of long-range persistence, show little systematic variation from one physiographic province to another. These divide- crest and very local divide-area relief characteristics are largely independent of regional geologic controls.
This study is an extension of earlier and continuing work on the map-view irregularity of drainage basin boundaries (Breyer and Snow, 1992; Rice-Snow, in press), and of the North American Continental Divide in particular (Rice-Snow, 1995, 1997). Drainage divides are self-similar in map view, showing instances of both homogeneous and inhomogeneous fractal character. The Continental Divide within the borders of the conterminous United States is a prime example for the study of drainage divide geometry because of the large range of scales available for study, even if limited to standard map data sources, and because the Divide traverses a variety of lithologic, structural, and climatic zones. Much of the gross structural variability, and significant but lesser portions of the lithologic and climatic variability, is represented by six major physiographic provinces (Fenneman, 1928) crossed by the Divide. These include, from south to north, the Basin and Range, Colorado Plateau, Southern Rocky Mountains, Wyoming Basin, Middle Rocky Mountains, and Northern Rocky Mountains provinces.
Topographic elevation data sets have been widely interpreted as self-affine fractals (Turcotte, 1992; Snow and Mayer,1992). With a wish to examine vertical aspects of irregularity along the Divide, we have collected elevation and relief data for a series of points and associated radial areas, in equally-spaced (linear) steps along the divide crest. These points are arrayed in sequence along a curve with complex, self-similar character, unlike linear topographic profiles and areal digital elevation models studied previously by others. However, it is still reasonable to treat the information as a group of one- dimensional, naturally sequential data sets. We had particular interest in exploring any cross-scale persistence of elevation and relief characteristics along the Divide.
The rescaled range method, or R/S analysis (Mandelbrot and Wallis, 1969; Mandelbrot, 1983; Feder, 1988), has been applied to test self-affine character and persistence features of a wide variety of geophysical data. Typical applications have been to time series (Mandelbrot and Wallis, 1969; Feder, 1988), and stratigraphic analog time series (Fluegeman and Snow, 1989; Wang, et al., 1992). Applications in an overt spatial analysis context are not unknown: a group of studies (Hewett, 1986; Emanuel, et al., 1989) investigate scaling behavior of porosity fluctuations in petroleum reservoir rocks via R/S analysis. In the present study we apply R/S analysis to the sequential elevation and relief data sets, another example of the method's utility in testing long-range persistence of spatial data.
We collected elevation and relief values for 336 stations along the U.S. Continental Divide extending from the Mexican to the Canadian border. Stations were established by manually walking map dividers with 10 km spacing along the irregular Divide trace, as mapped by the U.S. Geological Survey on 1:100,000 scale topographic quadrangles. Stations were selected as points on the Divide crest, nearest to last station along the trace in case of multiple intersections with the divider arc, on the 10 km intervals.
General Relief (5 km radius) -- difference between maximum and minimum elevations encountered within a 5 km radius of station. This follows the typical definition of areal relief. It should be noted that the maximum elevation point may not be on the Divide.
Point Relief (1 km radius, 10 km radius) -- difference between station point elevation on the Divide, and the lowest elevation observed within the specified radius of 1 or 10 km. These measures focus on the relief associated with the drainage divide and nearby low ares. The 1 km radius value provides a very local measure of relief from divide crest in the downslope direction, while the 10 km value is likely to approach the full relief of a ridge in mountainous topography. In some cases of the latter, the low elevation points identified for adjacent stations will be the same, although search areas for any two adjacent stations will be mostly unshared.
Divide Relief (5 km radius) -- difference between maximum and minimum divide crest elevation measures, discussed above. This measure addresses the relief encountered locally along the divide crest itself, supplementing in a relief context the explicit recording of broader variations in divide crest elevation by the along-divide sequence of elevation measures. As noted above, the sampling is non-overlapping, with less than complete coverage of the wandering divide trace.
One might question the basis for a practical distinction between maximum elevation encountered within some radius, and maximum elevation on the divide alone, within the same radius, as independent relief statistics. Does a difference in the two maximum elevation measures occur in a significant number of cases, or are the contrasts between general relief and divide relief values, as defined above, effectively the result of differences in the relevant elevation minima alone? Survey of the collected data for this study indicates that the maximum elevation value within 5 km radius occurs elsewhere than the Divide for more than ten per cent of stations, making it a significant, though lesser, component of difference between the relief values.
By and large, we took elevation values for all measures from the nearest mapped contour lines (20 to 50 m contour intervals) or from mapped point elevations, rather that attempting to interpolate or extrapolate point elevations between contours. Such attempts to obtain better quality of elevation and relief data would have limited value, in light of the possible error in absolute elevation values, on the order of contour interval, specified for the quadrangles.
Elevation and relief values obtained for the Continental Divide are shown in Figure 1. The series of topographic and relief profiles show notable variation in degree of qualitative distinction among the sections within different physiographic provinces. The elevation series show distinct shifts in mean value associated with the different provinces, with province boundaries distinctly marked. Gross, or broad-area relief measures such as general relief and 10-km-radius point relief retain strong mean value distinctions between mountainous provinces and lowland/plateau provinces. For the subtle, or limited-area, relief measures such as 1-km-radius point relief and divide relief, mean value distinctions among physiographic provinces are subtle to lacking, and while textural variations for the series retain more distinct character among provinces, the province boundaries are not so well marked. In comparison to the elevation and gross relief measures, it is reasonable to conclude that these subtle Divide relief statistics show little systematic variation from one physiographic province to another, being largely unaffected by the associated geologic controls on topography.
Figure 1. Plots of elevation and relief data series for 336 stations along the Continental Divide in the conterminous United States. (A) Elevations on the Divide crest. (B) Relief values for relatively large areas associated with the Divide. (C) Relief values focusing on the immediate vicinity of the Divide, and on the Divide crest alone.
Rescaled range analysis of the sequential data sets resulted in plots of mean R/S value over the full range of available non-overlapping data intervals. The value R is a cumulative data range statistic, and S is the source data standard deviation (Mandelbrot, 1983; Feder, 1988). The graphs are similar to the 'pox diagrams' of Mandelbrot and Wallis (1969), however lacking the scatter of individual R/S values contributing to the mean. Linearity in these logarithmic plots indicates self-affine character, and a plot slope (H) greater than 0.5 indicates persistence of values, in the source data: the combination of these two characteristics for large data intervals is termed long-range persistence. The fractal dimension (D = 2-H for H > 0.5) indicates increasing degrees of persistence as it approaches 1.0, thus departing further from the D value of 1.5 for a random signal.
Plots for elevation data series are shown in Figure 2; those for relief series, in Figure 3. The results uniformly show a good fit to the self-affine model, with high degrees of persistence (D = 1.0-1.2) extending to the longest spatial intervals tested. The plots display strong linearity for sample intervals of 5 to 336 stations. For the smallest intervals available (3-5 stations) there is a divergence from the trend to somewhat lower plot slope. We have chosen to omit these points (with an additional margin: up to 7 stations) from the linear regressions to obtain overall plot slopes and corresponding D values.
It is possible that the small-interval deviations represent actual scale heterogeneities in the data, but there is precedent as well to consider them artifacts of the analysis method. Mandelbrot and Wallis (1969) note 'initial transient' deviations to higher plot slope, occurring at small data intervals in pox diagrams for a number of their example temporal records, and indicate that they are statistical artifacts. However, the transients displayed in their plots are opposite in sense to the deviations in the present study. In our analyses of the Continental Divide data sets, some cases with S equal to zero were typically removed from the R/S averaging for data intervals of three and four, again bringing the reliability of these values into question.
Nevertheless, these plots from rescaled range analysis represent exceptionally clear demonstrations of self-affine character and long-range persistence. By way of comparison, a variogram derived from the station point elevation series maintains clearly linear form for the range of one to about fifteen data intervals, deviating to negative slope beyond 80 intervals, a form feature typical of topographic variograms. The fit to the linear portion of the variogram suggests a H value of 0.34 and D value of 1.66, highlighting the qualitative difference in data characteristics addressed by the two methods.
The three elevation data series for the Continental Divide crest yield very uniform, low, D values in the approximate range 1.02-1.04 (Fig. 2). This indicates a very high degree of persistence in values. The linearity of the plots indicates a consistent self-affine character, with the same degrees of persistence in elevation values bridging the scales of mountain range segments, entire ranges, full physiographic provinces, and the Continental Divide segment as a whole. There is a slightly higher persistence (D = 1.02, Fig. 2C) demonstrated for minimum Divide elevation within 5 km radius of station, than for point elevation or maximum Divide elevation, both of which can be interpreted to have slightly higher components of randomness in sequential values.
The diverse relief statistics show much more variability in fractal dimension value, although never departing from strongly persistent character. Rescaled range analysis (Fig. 3) again highlights a contrast between the measures of gross and subtle relief. The gross measures, general relief (5 km radius) and point relief (10 km radius), show very high along-divide persistence (Fig. 3A, 3B), with D values of 1.07 and 1.045 approaching, but greater than, those for the elevation series.
The subtle measures show the least persistence (D range 1.12-1.18). Point relief (1 km radius) yields D value of 1.125 (Fig. 3C), although it relates to features intermediate in range of coverage from the Divide trace, compared to the gross relief measures and the crest elevation values. The highest value of fractal dimension (1.18) and lowest degree of persistence is associated with the relief between high and low points on the Divide crest (5 km radius), as shown in Figure 3D. The relief on the Divide ridge itself is the measure least characterized by short and long-range correlations of values.
Figure 2. Rescaled range (R/S) analysis results for elevation data series along the Continental Divide. The value H is the slope of the plotted linear regression line.
Figure 3. Rescaled range (R/S) analysis results for relief data series along the Continental Divide. (A, B) Relief values for relatively large areas associated with the Divide. (C, D) Relief values focusing on the immediate vicinity of the Divide, and on the Divide crest alone.
Elevation and relief along the Continental Divide display robust self-affine character, maintained across the variety of specific quantifications of these concepts tested in the study. All data series show high degrees of persistence, exemplified by fractal dimension values in the range 1.0-1.2, extending from intervals of a few 10-km steps to the largest scale encompassed, the distance between the Mexican and Canadian borders along the irregular Divide trace. Dimension values for the elevation series, including point elevations as well as minimum and maximum Divide elevations encountered within a search radius, are characterized by notably uniform D values (1.02-1.04), showing extremely high degrees of long-range persistence.
Among the relief measures tested, a very localized relief value, the point relief (1 km radius), and a measure of local (5 km radius) variation in the elevation of the Divide crest are marked by significantly higher D values (1.12-1.18), indicating relatively low degrees of persistence. These subtle relief values are the same ones whose plotted series (Fig. 1C) lack clear signatures of the six different physiographic provinces traversed by the Divide. While all data series tested fall within the strongly persistent range of self-affine fractal dimensions, well below the value of 1.5 for random records, the range of D values (1.0-1.2) nevertheless encompasses records that can clearly mark or almost completely obscure long-range trends, with strong contrasts in the degree to which effects of geologic structure and other regional controls are apparent in topographic measures.
Breyer, S.P., and Snow, R.S. (1992) Drainage basin perimeters: A fractal significance: In R. S. Snow and L. Mayer, eds., special issue on "Fractals in Geomorphology", Geomorphology, v. 5, p. 143-157.
Emanuel, A.S., Alameda, G.K., Behrens, R.A., and Hewett, T.A. (1989) Reservoir performance prediction methods based on fractal geostatistics: SPE Reservoir Engineering, v. 4, n. 3, p. 311-318.
Feder, J. (1988) Fractals: New York, Plenum Press, 283 p.
Fenneman, N.M. (1928) Physiographic divisions of the United States: Annals of Association of American Geographers, v. 18, p. 261-353.
Fluegeman, R.H., and Snow, R.S. (1989) Fractal analysis of long-range paleoclimatic data: Oxygen isotope record of Pacific core V28-239: Pure Appl. Geophys., v. 131, p. 307-313.
Hewett, T.A. (1986) Fractal distributions of reservoir heterogeneity and their influence on fluid transport: 61st Annual SPE Tech. Conf. (New Orleans), Paper SPE 15386.
Mandelbrot, B.B. (1983) The Fractal Geometry of Nature: Freeman and Co., New York, 468 p.
Mandelbrot, B.B., and Wallis, J.R. (1969) Some long-run properties of geophysical records: Water Resources Research, v. 5, p. 321-340.
Rice-Snow, S. [in press] Fractal characteristics of drainage basin boundaries in Puerto Rico: Proceedings of the International Symposium in Hydrology in the Humid Tropic Environment (International Assoc. of Hydrological Sciences).
Rice-Snow, S. (1997) Fractal geometric characteristics of the North American Continental Divide, Abstracts of American Association for the Advancement of Science (AAAS) Annual Meeting, Seattle, Washington, p. 97.
Rice-Snow, S. (1995) Geometry of the Continental Divide, Geological Society of America Abstracts with Programs, v. 27, n. 6, p. 57.
Snow, R.S., and Mayer, L. (editors, 1992) Fractals in Geomorphology: special issue, Geomorphology, v. 5, n. 1/2, p. 1-194.
Turcotte, D.L. (1992) Fractals and Chaos in Geology and Geophysics: Cambridge University Press, Cambridge, 221 p.
Wang, Y., Evans, M.E., and Xu, T.C. (1992) Rescaled range analysis of paleoclimatic proxies: Canadian Journal of Earth Sciences, v. 29, p. 296-300.

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The Lord counted Abram’s faith as righteousness, not any deed he had done and Paul argues that this was the case under the OT and likewise now that Christ has been raised. It is important for us to note the concept of imputed/credited righteousness in Romans 4 and elsewhere. The Greek word used in these instances is verb λογίζομαι (logizomai, G3049), which means "to reckon, count, compute, calculate, count over". Dr. William D. Mounce says that the "basic meaning of logizomai has to do with counting or thinking". The important distinction between the Protestant and Roman Catholic doctrine of justification has to do with the fact that the Protestant doctrine of justification declares the sinner to be righteous although he is not fully righteous, because of Christ's merits. While the Roman Catholic doctrine seeks to make the sinner righteous and only then will he be really justified and righteous. But notice that the word which the Apostle Paul uses, logizomai, has to do with counting and thinking of someone as righteous instead of making them righteous (e.g. Rom. 4:3, 4, 5, 6, 8, 9, 10, 11).
The same is true of the word for justification, δικαιόω (dikaioo, G1344). The word is defined by Thayer as "to render righteous or such he ought to be" and "to declare, pronounce, one to be just, righteous, or such as he ought to be". Mounce gives it the basic definition of "to declare righteous, justify". Again we notice in these definitions that the idea is absent of making someone righteous and just through infusion or change of nature. Paul uses this word a lot in his epistles. It is also used Romans 4, which we were looking at. For example, Romans 4:5 says that "the one who does not work but believes in him who justifies the ungodly, his faith is counted as righteousness". Because of faith, which counted (logizomai) as righteousness, the Lord God King of the Universe, declares righteous those who have put their faith in Christ. This is not because they are practically righteous, for God is justifying the ungodly. But because of the perfect righteousness of Christ which was imputed to their account whereby God credits to them and thinks of them as righteous because they are united to Christ, the perfectly righteous Man. In further support for our point that dikaioo means declaring and counting one righteous, rather than making we call upon Luke 7:29. There, the text literally says that the people "justified God" (KJV). Now, what does this mean? Does anyone think that the people made God to be righteous? Absolutely not! Rather, as the ESV renders the passage, "they declared God just".
The Judge of the Universe, because of the atoning death of His Beloved Son on our behalf, declares us to be righteous. Our union with Christ makes it so that His death becomes our death, His resurrection our resurrection, His life our life, His righteousness our righteousness. Although we have not yet been perfectly conformed to His image, we are certainly predestined to that end (Rom. 8:29). In other words, God will make us righteous, but this is not what the New Testament speaks about for our salvation. Rather, this is sanctification in which the Holy Spirit works to change us into Christ's image, but it is a life-long process of ups and downs (see here).
This is a controversial point, especially with Arminians and other non-Calvinists. Calvinists have always insisted that faith is a gift from God given to us and does not have its origin in us or our wills. We don’t believe that God believes for us, but we believe that it is God who works faith in our heart and changes our nature so that we are made able to exercise faith in Christ. God gives us faith and we believe. Faith does not originate with us. It is a divine work which lasts until we see Him in heaven. Unless this work of grace takes place, Scripture teaches us that we are both unable and unwilling to come to Christ (see chapter 6). Let’s take a look at a few passages which Calvinists have used to support the idea that faith is a gift and to see whether this is indeed biblical.
The case for regeneration preceding faith rests upon the first part of the verse that I highlighted and the use of the verb tenses there. Notice that in the YLT we can see the tenses much clearer than in other normal English translations, although the verse reads a little bit strange than usual English. The people who are believing, it is a present act of believing. It is something that is happening now, it is an active and present faith, not one which is in the past. But, this faith was the result of an action in the past. Now we come to the crucial point. The verb γεγέννηται (gegennetai, G1080), which has been translated with “has been born” in the ESV and “he hath been begotten” in the YTL is a perfect passive indicative in Greek. What does that all mean? Don't worry, we'll take a look at every aspect.
The verb tense used by the writer to describe a completed verbal action that occurred in the past but which produced a state of being or a result that exists in the present (in relation to the writer). The emphasis of the perfect is not the past action so much as it is as such but the present “state of affairs” resulting from the past action.
The point which I am trying to get across is that the “believes that Jesus is the Christ” is in the present active tense and according to the perfect passive indicative comes as the result of “has been born of God”. The fact that we believe in the present is indicative that we have been born again in the past. They are connected. The present believing is dependent upon a passive action in the past, namely, that God caused us to be born again. The one precedes the other. The being born of God, which is regeneration, precedes the believing that Jesus is the Christ. Thus, this text explicitly teaches that faith does not precede regeneration, but in fact, faith is a result of regeneration. That this is, in fact, the case we look at a couple more similar constructions in John lest people accuse us of using difficult Greek stuff to confound them. In the following examples, it will be very clear to English readers how the construction works.
1 John 2:29 If you know that he is righteous, you may be sure that everyone who practices righteousness has been born of him.
ποιῶν (poion, G4160, to make or do), like πιστεύων (pisteun, G4100, to have faith) is a present active participle. We find the same perfect passive indicative γεγέννηται (gegenetai, G1080) here again. It is orthodox and faithful to Scripture to say that the fact that we were born from God was the cause of us doing righteousness (e.g. Eph. 2:8-10; Titus 2:11-14). We do righteousness at the present only because in the past we were born of God. To say anything else is making salvation to be by works and not grace, thus a denial of the Gospel. The reason why we do righteousness is that we were born of God and we desire to please God (Ezk. 36:25-27). We do not do righteousness to be born of God. That is works-salvation and that is another gospel!
ἀγαπῶν (agapon, G25) is again like in the two other passages, present active participle and γεγέννηται (gegenetai, G1080) is perfect passive indicative. The reason that we love is because we were born of God. We do not become regenerate because we love. It is the opposite. See among many other places about love in John's letter 1 John 4:8-12. Love is the effect, not the cause of regeneration.
Now we come back 1 John 5:1. I believe that we have successfully argued from the similar use of the Greek construction in other passages by John that the “born of God” precedes and results in that one “believes that Jesus is the Christ”. 1 John 5:1 is definite and explicit upon the teaching that regeneration precedes faith. See Dr. James White, 1John 5:1, We are Born Again Then We Believe and 1 John 5:1, Regeneration, Faith, and Tradition Driven Eisegesis.
In regeneration, the Sovereign and gracious Spirit of the Almighty gives us a new heart and a new spirit, in a word he makes us new. We become new creations, no longer hostile to God, but now desire the things of God. Our nature is changed. We are made spiritually alive and thus will love the things of God and will believe in God. We are no longer, in the words of 1 Corinthians 2:14, natural people, but spiritual people–indwelt and led by the Spirit of God (1Cor. 2:11-13, 15). Our situation prior to regeneration and faith is similar to that of Lazarus. He was stinking in the grave for 4 days. He had no power to raise himself up from the grave. He did not take the first step nor the last step, or any step in between. He was wholly passive through the whole process of him being made alive again. The Lord of glory, the Giver of life Himself raised him up. There was absolutely no choice of his involved in all of this. When the Lord said, “Lazarus, come out!” (John 11:43) He could do not do anything but come out. The Lord imparted life to him without asking his permission or without anything to do with his will, exactly because Lazarus was unable. So it is likewise our condition in our spiritual deadness and slavery to sin. We are not sick in sin, but dead. We are not half dead, but totally dead to the things of God. It does not mean that we do not do anything, but everything we do in our unregenerate state is sin and leads to death. We cannot do anything good or spiritual as that is not in accords with our fallen and sinful nature. The Lord Christ compares regeneration to spiritual resurrection in John 5:24-26.
Rom 4:5-10 And to the one who does not work but believes in him who justifies the ungodly, his faith is counted as righteousness, 6 just as David also speaks of the blessing of the one to whom God counts righteousness apart from works: 7 “Blessed are those whose lawless deeds are forgiven, and whose sins are covered; 8 blessed is the man against whom the Lord will not count his sin.” 9 Is this blessing then only for the circumcised, or also for the uncircumcised? For we say that faith was counted to Abraham as righteousness. 10 How then was it counted to him? Was it before or after he had been circumcised? It was not after, but before he was circumcised.
It is our faith which is counted by God as if it was our righteousness. Our faith is in Christ. Under the Old Testament, it was in the promises of God and the types and shadows as they did not have the complete revelation of God yet. But Paul says that even David speaks of justification by faith alone. It is our faith which is the lone instrument of this. God counts our belief, trust, confidence, and faith in Him as our righteousness just like He did for Abraham (Gen. 15:6). This was as Paul, again and again, says—apart from works. Works were not into consideration because all of them are as filthy rags (Isa. 64:6) and no really does anything “good” before a perfectly holy God (Rom. 3:10, 12). Even the father of the faithful, says Paul in verse 10, was justified by faith, how much more his children. But to stress his point, even more, he refers back to the Genesis 15 episode where God makes the covenant with Abraham. The circumcision part had not come yet, it is established in Genesis 17, but Genesis 15:6 says that God counted Abraham’s faith in God and trust in His promises as the ground of Abraham’s right-standing before Him. God did not declare Abraham just after he was circumcised, but before he was circumcised. He was justified by faith alone apart from works.
We could go on and on, but it is needless. I believe that those verses sufficiently show that works are excluded from salvation. See CARM for more: “Are we saved by faith alone, or do we need works, too?” and “Verses Showing Justification by Faith”.
Usually, the Roman Catholic would object to the case made above and go to James 2:24 where it is stated that “a person is justified by works and not by faith alone.” What is the context and what is James trying to communicate here? Does he say that we must work for our salvation? I do not believe so, otherwise, that would make the Bible contradictory with itself and that is something which both positions do not believe. Let’s take a look.
It is necessary to begin our discussion from verse 14 and not to jump into v. 24 with no consideration of what the context is and what came before. Is he saying that we are justified by works and faith before God or something else?
Jas. 2:14-17 What good is it, my brothers, if someone says he has faith but does not have works? Can that faith save him? 15 If a brother or sister is poorly clothed and lacking in daily food, 16 and one of you says to them, “Go in peace, be warmed and filled,” without giving them the things needed for the body, what good is that? 17 So also faith by itself, if it does not have works, is dead.
You see, the discussion should not begin at v. 24 if you want to get the correct and consistent understanding of the passage but begin at v. 14 or even 1:1 to get the whole context. But it is sufficient and good if we begin here. James starts by asserting what does it matter if one merely says he has faith. “If someone says” that they’re Christian, but do not bear “fruit in keeping with repentance” (Matt. 3:8), their faith is empty. They are merely saying that their Christians, but in fact do not give any evidence that they are followers of Christ. Furthermore, James points back to the fruitless faith of that person saying, "Can that faith save him?” The question, therefore, is not can faith alone save, but it is can a fruitless faith save? You see, the whole discussion should be framed in regards to this point that James is trying to refute the idea that because “someone [merely] says” that they’re justified and have faith, means that they're justified. Saying that one is justified and a believer, does not, in fact, mean that they are truly justified and are true believers. That is what is James combating here.
Galatians 6:10 encourages us to do good and help people, especially our brothers and sisters in Christ. Paul is clear on justification by faith alone, yet the faith that justifies always works out in love. Now notice what is said in James 2:15-16, those who claim that they have faith, do not, in fact, obey Paul’s exhortation to do good, especially to their brothers and sisters in the Lord and therefore they do not give any evidence that saving faith resides within them. Their entire “faith” is merely their assertion that they have faith with no evidence. On this basis, James says in verse 17 that if this is what you think faith is, i.e., merely the assertion of faith without the accompanying fruit, then that “faith” that you actually have is dead, false and fake. It is useless; it is not going to help you. It is not saving faith.
We keep our faith alive through acting out on our faith and bearing the fruit that comes from the fact that the Spirit is within us. We want to do good works so that our Father would be glorified (Matt. 5:16). We want to do the good works, which the God who saved us by grace and through faith, had prepared for us from eternity (Eph. 2:10).
Jas. 2:18-19 But someone will say, “You have faith and I have works.” Show me your faith apart from your works, and I will show you my faith by my works. 19 You believe that God is one; you do well. Even the demons believe—and shudder!
Again, we continue with what we established before, the mere claim of possession of faith and the actual possession of faith. We are justified by the possession of faith, not by the mere profession of faith. Faith is something that is internal between oneself and God, it is not something invisible to others. But there is a way in which true faith can be seen, namely, by our deeds to the glory of God. God knows if we have true and saving faith because He knows everything and knows us better than ourselves, but people cannot know if we have true saving faith. The only way for them to have an idea if we have faith is to observe our walk of life and our deeds. That’s the reason that James says that it is impossible to demonstrate your faith before people without your works, i.e., the fruits of your repentance and faith (Matt. 3:8; Acts 26:20). The context of James’ discussion is not justification before God, rather the discussion is the demonstration of your justification and faith before people. James is not concerned here with what dwells inside a believer, but his discussion concerns those who profess the faith but do not act like it. It is those people who cannot demonstrate their justification before men.
Jas. 2:20-26 Do you want to be shown, you foolish person, that faith apart from works is useless? 21 Was not Abraham our father justified by works when he offered up his son Isaac on the altar? 22 You see that faith was active along with his works, and faith was completed by his works; 23 and the Scripture was fulfilled that says, “Abraham believed God, and it was counted to him as righteousness”—and he was called a friend of God. 24 You see that a person is justified by works and not by faith alone. 25 And in the same way was not also Rahab the prostitute justified by works when she received the messengers and sent them out by another way? 26 For as the body apart from the spirit is dead, so also faith apart from works is dead.
The discussion continues. The profession of the faith is useless without works by which you can demonstrate the genuineness of your faith. Now we get to the justification of Abraham. Paul has clearly argued in Romans 4 that Abraham was justified by faith apart from works (see above). But what is James speaking about here? We have already argued that the discussion of James concerns the demonstration of our faith before people. It is not about whether we have saving faith or not before God. God knows our hearts and knows if we have true faith, people don’t the way they can see that is through our fruit (Luke 6:44). In v. 22, James argues that when Abraham offered Isaac his faith was completed by his works, i.e., the obedience to God even at this point. His faith was active and in fact, it was Hebrews says what inspired him to do what he did (Heb. 11:17-19). His faith was the driving force of his obedience. We have already argued as the Paul does himself, a better interpreter than me, that Abraham was justified by faith apart from works in Romans 4. But what James is saying here is that Abraham’s possession of true saving faith was demonstrated by his obedience to God. In this, he demonstrated that he truly believed God in everything that he said and that he would have even given his son for God. He demonstrated before all that he truly possessed true faith and not merely professed it.
In v. 23 James says that the Scripture was fulfilled, it came practically to life. Abraham, by his obedience to God’s command, demonstrated to all that he possessed true saving faith in God Almighty and did not withhold his beloved son. Then the statement in v. 24 we should be understood in the light of the previous discussion. Indeed, we are not justified before men merely by faith, but by works also. The second definition for δικαιόω (dikaioo) given by Thayer’s Greek Definitions (G1344) is “to show, exhibit, evince, one to be righteous, such as he is and wishes himself to be considered.” Abraham did show himself as righteous and justified before people by his obedience to God. He demonstrated that he possessed saving faith.
In the same way as Abraham, the example of Rahab when she received and helped the Israelite spies because of the LORD’s fame which had reached Jericho. So, James concludes that just as the human body without the spirit lies in the dust and returns to dust, the same way faith without works is dead and useless. It is not saving and true faith. Saving and true faith always works itself out in love and good works (e.g. Eph. 2:8-10; Phil. 2:11-12; Titus 2:11-14; Heb. 13:20-21).
What we must understand from this discussion is the fact that we are saved by faith alone, but saving faith is never alone. It is always accompanied by the fruits which are the effects of faith. Again and again we read in the New Testament of doing good works without any contradiction to the doctrine of justification by faith alone (1John 3:8; Gal. 5:13; Jas. 2:14-15; 1Pet. 1:22; 2:12; 3:1, 16; 1Tim. 2:10-11; 5:9-10; 6:17-18; Titus 2:7-8, 13-14; 3:7-8, 14; Heb. 10:24). A faith that is a true and saving faith always works itself out in works (Titus 3:7-8).
How did Christ fully discharge the debt of all those that are justified? By His obedience and death (Rom. 5:8-10, 18-19). This is again a reference to His active and passive obedience (chapter 8:5). By the sacrifice of Himself, He underwent in their stead the penalty due unto them (Gal. 3:13; Isa. 53:4-6, 10). This He did so that He would make a proper, real, and full satisfaction to God's justice on their behalf. God does not simply forget or ignore our sins. His justice demands that payment be made for our wrongdoing. This God has accomplished in Jesus Christ Who paid our debt and underwent the punishment which we deserved. Both His obedience and satisfaction (i..e, active and passive obedience) are accepted in their stead. The active and passive obedience of Christ is the ground of our justification and peace with God. Both the active and passive obedience of Christ are credited to us freely, not for anything in them. This shows us absolutely that our justification is only of free grace. Prior to justification God would see our “good works” as filthy rags (Isa. 64:6) and would see that we do not desire Him (Rom. 3:9; 8:7-8). Therefore, there is nothing that would move Him to declare us righteous for anything in us. We were not righteous. But if it only of free grace then the reason for why we are justified does not lie with us, but with Him alone. God is glorified in the justification of sinners both in His exact justice as well as His rich grace (Rom. 3:26). He exacted justice upon Christ and thereby showed that He cares about His law, His glory, His holiness, and His justice. And through His justice and punishment of Christ, He lavished upon us the richness of His mercy and grace. We are freely justified by His grace, but His grace was not free. The cost of grace was the blood of Jesus Christ.
Active Obedience refers to Christ's perfect obedience to the Law on our behalf and the Passive Obedience refers to the atonement on our behalf. The interested reader is referred to chapter 8 for these two points.
But how is God’s justice then demonstrated in mercy and grace? Proverbs 17:15 says that “He who justifies the wicked and he who condemns the righteous are both alike an abomination to the LORD.” So, how can God justify the wicked, i.e., sinners and those who are not righteous, without Himself being an abomination?! This is the problem that Paul is actually dealing with in Romans 3:25-26. The solution of the problem is found in Christ being the propitiation. This means that God put forward Christ so that He would bring upon Him the punishment deserved for everyone who would believe. God did indeed justify the wicked, but His wrath against their sins was satisfied in the Substitute. He did not merely ignore their sins and justify them, that would have been an abomination. Rather, God punished their sins in the Substitute. God’s wrath was satisfied against their sins. God was propitiated. It is in this way that God is just and the justifier. God will do justice against all those who do not repent by sending them to hell to pay for their sins. But He is also the justifier of the ungodly because He has poured out His wrath, which He had against the elect, on His Son, the perfect and spotless Substitute.
God’s desire in all of this to show that salvation only belongs to Him. It only comes through His efforts, not anything in humans. So that no one would have a basis to boast. God desired to show His righteousness and He indeed does show His righteousness. He is righteous in punishing the guilty and He is righteous in saving the elect because a Substitute paid their debt. God planned for salvation to be in this way, i.e., that it would be in Christ and by grace through faith so that no man could say that he contributed anything to his salvation.
It is because of God that we are believers and we have been justified. The righteousness of Christ is credited to us and God sees us righteous and spotless in Christ. Why? So that we would boast only in the Lord. Justification is by grace and through faith so as to exclude boasting (Eph. 2:8-9). God is jealous for His glory and He will give it to no other.
God had from all eternity determined to justify all the elect (Rom. 8:30 ). To do so, He likewise decreed that Christ in the fullness of time die for their sins, and rise again for their justification (Gal. 4:4; Rom. 4:25). What is important to notice is that it says that God did from all eternity decree and not actually justify the elect from all eternity. They are justified personally only when the Holy Spirit doth in time due actually apply Christ unto them (Titus 3:4-7 ). We are justified by faith and not election . Election ensures that we will be justified, but it is not the instrument of justification.
It is God the Spirit who applies to us the work accomplished by the Son. It is He who convicts us of our sin (John 16:8). It is He who regenerates us (Ezek. 36:25-27; John 3:5-8; Titus 3:5) and thus gives us the new life in Christ. It is He who applies the words of Christ to us. Without Him, they're empty words but He makes them living and regenerates us (John 6:63). It is His person that we receive the moment we believe (Acts 2:38). The Spirit dwells in us (Rom. 8:9; John 3:16; 14:17; 2Tim. 1:14). We are sealed by the Spirit the moment we believe (Eph. 1:13-14). It is He who guides us into all truth (John 16:13). We are led by the Spirit (Rom 8:14; Gal 5:18). The Spirit sanctifies us (1Thess. 2:13; 1Pet. 1:2). The Spirit makes us more like Christ and transforms us (2Cor. 3:18). The Spirit prays with us and for us (Rom 8:26-27). The Spirit bears witness to us that we redeemed and are children of the living God (Rom 8:16). The Spirit works fruits in us (Gal. 5:22-23). The Spirit gives spiritual gifts to the body (1Cor. 12:4, 8-10; Heb. 2:4). The Spirit gives life to our mortal bodies (Rom. 8:11). The Spirit reveals the deep things of God to us (2Cor. 2:10). It is in the Spirit that we are spiritually baptized into the body of Christ (1Cor. 12:13). It is through the Spirit that we have access to the Father (Eph 2:18). There are much more things which the Spirit does for those whom Christ has purchased.
Here we see the perfect work of the Triune God in the redemption of the elect. Christ obtained all that was necessary for the redemption of the elect 2000 years ago on the cross, yet the benefits which Christ has obtained are not directly applied, rather in God's timing, those who were before the foundation of the world in the Son chosen, are regenerated by the Spirit and changed from children of wrath into children of the living God.
Not only at the moment of justification, but God doth continue to forgive the sins of those that are justified (1John 1:8-9) even if they can never fall from the state of justification (e.g. John 6:37-40; 10:28-29). It is not possible for a person who once was justified to later be unjustified. But through our sin we damage our relationship with God and with others. Because of that we may fall under God's fatherly displeasure and discipline (Heb. 12:3-17). We will remain in that condition until we grab a hold on the promise of 1 John 1:8-9, humble ourselves, confess our sins, beg pardon from the One Who has promised to forgive us, knowing that we will receive His forgiveness. Thereby we renew our faith and repentance and are again on the narrow path.
We still sin. Once we are justified it does not mean that sin is completely eradicated. The penalty of sin is indeed completely eradicated, but the sinful world around is not eradicated neither is the flesh completely defeated yet. Our desires are not completely God-centered as they should be. We fall short. See chapter 9 on man's will in the State of Grace. We should daily pray for the forgiveness of the sins that we know about and others which we may not consciously know about. Our Lord taught us to pray “forgive us our debts, as we also have forgiven our debtors” (Matt. 6:12). We seek God's forgiveness as we see also seek forgiveness from those whom we have wronged. The Lord promises us that we will receive forgiveness if we come to Him through Christ and confess our sins. Oh, what comfort! What joy! What grace to a wretch like me!
1John 1:8-9 If we say we have no sin, we deceive ourselves, and the truth is not in us. 9 If we confess our sins, he is faithful and just to forgive us our sins and to cleanse us from all unrighteousness.
If we think that we are able to live a sinless life and never sin again, we lie to ourselves and we are actually not in the Lord as we contradict His Word. But, when we sin we should confess our sins and not misuse grace (cf. Rom. 6:1-2). It is not like that God does not know that we sinned, but He desires that we come to Him, in all honesty, confessing our sins before His face and receiving forgiveness. It is not knowledge which God seeks, but confession and acknowledgment that we have rebelled against Him. John says that God is faithful and just in cleansing us from all sin and unrighteousness. He is faithful to His promise that we will be cleansed from sin and we will be glorified. But He is also just because the Substitute was punished in our place for all our sins, past, present and future. It is on this basis that God is just. Not because He ignores our sins, but because a propitiation–a satisfaction for those sins was provided in Jesus Christ for us (1John 2:1-2). Moreover, we know that we will be forgiven because it is Jesus Christ who intercedes for us and stands between us and His Father (Rom. 8:34; Heb. 4:15-16; 7:25). We don't stand before God on the basis of our righteousness, rather we are clothed in the perfect righteousness of Christ.

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No. 692, Docket 79-7704.United States Court of Appeals, Second Circuit.Argued Feb. 27, 1980.
[618 F.2d 974] James C. Eastman, Washington, D. C., for plaintiff-appellant.
Coudert Bros., New York City (Eugene L. Girden, New York City, of counsel), for defendant-appellee Universal City Studios, Inc.
Peter A. Flynn, and Myron M. Cherry, Chicago, Ill. (Cherry, Flynn & Kanter, Chicago, Ill., Hervey M. Johnson, White Plains, N. Y.), and James J. McEnroe, New York City (Watson, Leavenworth, Kelton & Taggert, New York City), for defendant-appellee Michael M. Mooney.
A grant of copyright in a published work secures for its author a limited monopoly over the expression it contains. The copyright provides a financial incentive to those who would add to the corpus of existing knowledge by creating original works. Nevertheless, the protection afforded the copyright holder has never extended to history, be it documented fact or explanatory hypothesis. The rationale for this doctrine is that the cause of knowledge is best served when history is the common property of all, and each generation remains free to draw upon the discoveries and insights of the past. Accordingly, the scope of copyright in historical accounts is narrow indeed, embracing no more than the author's original expression of particular facts and theories already in the public domain. As the case before us illustrates, absent wholesale usurpation of another's expression, claims of copyright infringement where works of history are at issue are rarely successful.
This litigation arises from three separate accounts of the triumphant introduction, last voyage, and tragic destruction of the Hindenburg, the colossal dirigible constructed in Germany during Hitler's reign. The zeppelin, the last and most sophisticated in a fleet of luxury airships, which punctually floated its wealthy passengers from the Third Reich to the United States, exploded into flames and disintegrated in 35 seconds as it hovered above the Lakehurst, New Jersey Naval Air Station at 7:25 p. m. on May 6, 1937. Thirty-six passengers and [618 F.2d 975] crew were killed but, fortunately, 52 persons survived. Official investigations conducted by both American and German authorities could ascertain no definitive cause of the disaster, but both suggested the plausibility of static electricity or St. Elmo's Fire, which could have ignited the highly explosive hydrogen that filled the airship. Throughout, the investigators refused to rule out the possibility of sabotage.
The destruction of the Hindenburg marked the concluding chapter in the chronicle of airship passenger service, for after the tragedy at Lakehurst, the Nazi regime permanently grounded the Graf Zeppelin I and discontinued its plan to construct an even larger dirigible, the Graf Zeppelin II.
The final pages of the airship's story marked the beginning of a series of journalistic, historical, and literary accounts devoted to the Hindenburg and its fate. Indeed, weeks of testimony by a plethora of witnesses before the official investigative panels provided fertile source material for would-be authors. Moreover, both the American and German Commissions issued official reports, detailing all that was then known of the tragedy. A number of newspaper and magazine articles had been written about the Hindenburg in 1936, its first year of trans-Atlantic service, and they, of course, multiplied many fold after the crash. In addition, two passengers Margaret Mather and Gertrud Adelt published separate and detailed accounts of the voyage, C. E. Rosendahl, commander of the Lakehurst Naval Air Station and a pioneer in airship travel himself, wrote a book titled What About the Airship?, in which he endorsed the theory that the Hindenburg was the victim of sabotage. In 1957, Nelson Gidding, who would return to the subject of the Hindenburg some 20 years later, wrote an unpublished "treatment" for a motion picture based on the deliberate destruction of the airship. In that year as well, John Toland published Ships in the Sky which, in its seventeenth chapter, chronicled the last flight of the Hindenburg. In 1962, Dale Titler released Wings of Mystery, in which he too devoted a chapter to the Hindenburg.
Appellant A. A. Hoehling published Who Destroyed the Hindenburg ?, a full-length book based on his exhaustive research in 1962. Mr. Hoehling studied the investigative reports, consulted previously published articles and books, and conducted interviews with survivors of the crash as well as others who possessed information about the Hindenburg. His book is presented as a factual account, written in an objective, reportorial style.
The first half recounts the final crossing of the Hindenburg, from Sunday, May 2, when it left Frankfurt, to Thursday, May 6, when it exploded at Lakehurst. Hoehling describes the airship, its role as an instrument of propaganda in Nazi Germany, its passengers and crew, the danger of hydrogen, and the ominous threats received by German officials, warning that the Hindenburg would be destroyed. The second portion, headed The Quest, sets forth the progress of the official investigations, followed by an account of Hoehling's own research. In the final chapter, spanning eleven pages, Hoehling suggests that all proffered explanations of the explosion, save deliberate destruction, are unconvincing. He concludes that the most likely saboteur is one Eric Spehl, a "rigger" on the Hindenburg crew who was killed at Lakehurst.
According to Hoehling, Spehl had motive, expertise, and opportunity to plant an explosive device, constructed of dry-cell batteries and a flashbulb, in "Gas Cell 4," the location of the initial explosion. An amateur photographer with access to flashbulbs, Spehl could have destroyed the Hindenburg to please his ladyfriend, a suspected communist dedicated to exploding the myth of Nazi invincibility.
Ten years later appellee Michael MacDonald Mooney published his book, The Hindenburg. [618 F.2d 976] Mooney's endeavor might be characterized as more literary than historical in its attempt to weave a number of symbolic themes through the actual events surrounding the tragedy. His dominant theme contrasts the natural beauty of the month of May, when the disaster occurred, with the cold, deliberate progress of "technology." The May theme is expressed not simply by the season, but also by the character of Spehl, portrayed as a sensitive artisan with needle and thread. The Hindenburg, in contrast, is the symbol of technology, as are its German creators and the Reich itself. The destruction is depicted as the ultimate triumph of nature over technology, as Spehl plants the bomb that ignites the hydrogen. Developing this theme from the outset, Mooney begins with an extended review of man's efforts to defy nature through flight, focusing on the evolution of the zeppelin. This story culminates in the construction of the Hindenburg, and the Nazis' claims of its indestructibility. Mooney then traces the fateful voyage, advising the reader almost immediately of Spehl's scheme. The book concludes with the airship's explosion.
Mooney acknowledges, in this case, that he consulted Hoehling's book, and that he relied on it for some details. He asserts that he first discovered the "Spehl-as-saboteur" theory when he read Titler's Wings of Mystery. Indeed, Titler concludes that Spehl was the saboteur, for essentially the reasons stated by Hoehling. Mooney also claims to have studied the complete National Archives and New York Times files concerning the Hindenburg, as well as all previously published material. Moreover, he traveled to Germany, visited Spehl's birthplace, and conducted a number of interviews with survivors.
After Mooney prepared an outline of his anticipated book, his publisher succeeded in negotiations to sell the motion picture rights to appellee Universal City Studios. Universal then commissioned a screen story by writers Levinson and Link, best known for their television series, Columbo, in which a somewhat disheveled, but wise detective unravels artfully conceived murder mysteries. In their screen story, Levinson and Link created a Columbo-like character who endeavored to identify the saboteur on board the Hindenburg. Director Robert Wise, however, was not satisfied with this version, and called upon Nelson Gidding to write a final screenplay. Gidding, it will be recalled, had engaged in preliminary work on a film about the Hindenburg almost twenty years earlier.
The Gidding screenplay follows what is known in the motion picture industry as a "Grand Hotel" formula, developing a number of fictional characters and subplots involving them. This formula has become standard fare in so-called "disaster" movies, which have enjoyed a certain popularity in recent years. In the film, which was released in late 1975, a rigger named "Boerth," who has an anti-Nazi ladyfriend, plans to destroy the airship in an effort to embarrass the Reich. Nazi officials, vaguely aware of sabotage threats, station a Luftwaffe intelligence officer on the zeppelin, loosely resembling a Colonel Erdmann who was aboard the Hindenburg. This character is portrayed as a likable fellow who soon discovers that Boerth is the saboteur. Boerth, however, convinces him that the Hindenburg should be destroyed and the two join forces, planning the explosion for several hours after the landing at Lakehurst, when no people would be on board. In Gidding's version, the airship is delayed by a storm, frantic efforts to defuse the bomb fail, and the Hindenburg is destroyed. The film's subplots involve other possible suspects, including a fictional countess who has had her estate expropriated by the Reich, two fictional confidence men wanted [618 F.2d 977] by New York City police, and an advertising executive rushing to close a business deal in America.
Upon learning of Universal's plans to release the film, Hoehling instituted this action against Universal for copyright infringement and common law unfair competition in the district court for the District of Columbia in October 1975. Judge Smith declined to issue an order restraining release of the film in December, and it was distributed throughout the nation.
In January 1976, Hoehling sought to amend his complaint to include Mooney as a defendant. The district court, however, decided that it lacked personal jurisdiction over Mooney. In June 1976, Hoehling again attempted to amend his complaint, this time to add Mooney's publishers as defendants. Judge Smith denied this motion as well, but granted Hoehling's request to transfer the litigation to the Southern District of New York, 28 U.S.C. § 1404(a), where Mooney himself was successfully included as a party. Judge Metzner, with the assistance of Magistrate Sinclair, supervised extensive discovery through most of 1978. After the completion of discovery, both Mooney and Universal moved for summary judgment, Fed.R.Civ.P. 56, which was granted on August 1, 1979.
It is undisputed that Hoehling has a valid copyright in his book. To prove infringement, however, he must demonstrate that defendants "copied" his work and that they "improperly appropriated" his "expression." See Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946). Ordinarily, wrongful appropriation is shown by proving a "substantial similarity" of copyrightable expression. See Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795 (1931). Because substantial similarity is customarily an extremely close question of fact, see Arnstein, supra, 154 F.2d at 468, summary judgment has traditionally been frowned upon in copyright litigation, id. at 474. Nevertheless, while Arnstein 's influence in other areas of the law has been diminished, see SEC v. Research Automation Corp., 585 F.2d 31 (2d Cir. 1978); 6 Moore's Federal Practice P 56.17(14) (2d ed. 1976), a series of copyright cases in the Southern District of New York have granted defendants summary judgment when all alleged similarity related to non -copyrightable elements of the plaintiff's work, see, e. g., Alexander v. Haley, 460 F.Supp. 40 (S.D.N.Y.1978); Musto v. Meyer, 434 F.Supp. 32 (S.D.N.Y.1977); Gardner v. Nizer, 391 F.Supp. 940 (S.D.N.Y.1975); Fuld v. National Broadcasting Co., 390 F.Supp. 877 (S.D.N.Y.1975). These cases signal an important development in the law of copyright, permitting courts to put "a swift end to meritless litigation" and to avoid lengthy and costly trials. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980); accord, Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir. 1972); American Manufacturers Mutual Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 278 (2d Cir. 1967). Drawing on these cases, Judge Metzner assumed both copying and substantial similarity, but concluded that all similarities pertained to various categories of non-copyrightable material. Accordingly, he granted appellees' motion for summary judgment. We affirm the judgment of the district court.
Hoehling's principal claim is that both Mooney and Universal copied the essential plot of his book i. e., Eric Spehl, influenced by his girlfriend, sabotaged the Hindenburg by placing a crude bomb in Gas Cell 4. In their briefs, and at oral argument, appellees have labored to convince us that their plots are not substantially similar to Hoehling's. While Hoehling's Spehl destroys the airship to please his communist girlfriend, Mooney's character is motivated by an aversion to the technological age. Universal's [618 F.2d 978] Boerth, on the other hand, is a fervent anti-fascist who enlists the support of a Luftwaffe colonel who, in turn, unsuccessfully attempts to defuse the bomb at the eleventh hour.
Although this argument has potential merit when presented to a fact finder adjudicating the issue of substantial similarity, it is largely irrelevant to a motion for summary judgment where the issue of substantial similarity has been eliminated by the judge's affirmative assumption. Under Rule 56(c), summary judgment is appropriate only when "there is no genuine issue as to any material fact." Accord, Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975). Perhaps recognizing this, appellees further argue that Hoehling's plot is an "idea," and ideas are not copyrightable as a matter of law. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir.), cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936).
Hoehling, however, correctly rejoins that while ideas themselves are not subject to copyright, his "expression" of his idea is copyrightable. Id. at 54. He relies on Learned Hand's opinion in Sheldon, supra, at 50, holding that Letty Lynton infringed Dishonored Lady by copying its story of a woman who poisons her lover, and Augustus Hand's analysis in Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432 (2d Cir. 1940), concluding that the exploits of "Wonderman" infringed the copyright held by the creators of "Superman," the original indestructible man. Moreover, Hoehling asserts that, in both these cases, the line between "ideas" and "expression" is drawn, in the first instance, by the fact finder.
Sheldon and Detective Comics, however, dealt with works of fiction, where the distinction between an idea and its expression is especially elusive. But, where, as here, the idea at issue is an interpretation of an historical event, our cases hold that such interpretations are not copyrightable as a matter of law. In Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967), we held that the defendant's biography of Howard Hughes did not infringe an earlier biography of the reclusive alleged billionaire. Although the plots of the two works were necessarily similar, there could be no infringement because of the "public benefit in encouraging the development of historical and biographical works and their public distribution." Id. at 307; accord, Oxford Book Co. v. College Entrance Book Co., 98 F.2d 688 (2d Cir. 1938). To avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter, including theories or plots. Learned Hand counseled in Myers v. Mail & Express Co., 36 C.O.Bull. 478, 479 (S.D.N.Y.1919), "(t)here cannot be any such thing as copyright in the order of presentation of the facts, nor, indeed, in their selection."
In the instant case, the hypothesis that Eric Spehl destroyed the Hindenburg is based entirely on the interpretation of historical facts, including Spehl's life, his girlfriend's anti-Nazi connections, the explosion's origin in Gas Cell 4, Spehl's duty station, discovery of a dry-cell battery [618 F.2d 979] among the wreckage, and rumors about Spehl's involvement dating from a 1938 Gestapo investigation. Such an historical interpretation, whether or not it originated with Mr. Hoehling, is not protected by his copyright and can be freely used by subsequent authors.
The same reasoning governs Hoehling's claim that a number of specific facts, ascertained through his personal research, were copied by appellees. The cases in this circuit, however, make clear that factual information is in the public domain. See, e. g., Rosemont Enterprises, Inc., supra, 366 F.2d at 309; Oxford Book Co., supra, 98 F.2d at 691. Each appellee had the right to "avail himself of the facts contained" in Hoehling's book and to "use such information, whether correct or incorrect, in his own literary work." Greenbie v. Noble, 151 F.Supp. 45, 67 (S.D.N.Y.1957). Accordingly, there is little consolation in relying on cases in other circuits holding that the fruits of original research are copyrightable. See, e. g., Toksvig v. Bruce Publications Corp., 181 F.2d 664, 667 (7th Cir. 1950); Miller v. Universal City Studios, Inc., 460 F.Supp. 984 (S.D.Fla.1978). Indeed, this circuit has clearly repudiated Toksvig and its progeny. In Rosemont Enterprises, Inc., supra, 366 F.2d at 310, we refused to "subscribe to the view that an author is absolutely precluded from saving time and effort by referring to and relying upon prior published material. . . . It is just such wasted effort that the proscription against the copyright of ideas and facts . . . . are designed to prevent." Accord, 1 Nimmer on Copyright § 2.11 (1979).
The remainder of Hoehling's claimed similarities relate to random duplications of phrases and sequences of events. For example, all three works contain a scene in a German beer hall, in which the airship's crew engages in revelry prior to the voyage. Other claimed similarities concern common German greetings of the period, such as "Heil Hitler," or songs, such as the German National anthem. These elements, however, are merely scenes a faire, that is, "incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic." Alexander, supra, 460 F.Supp. at 45; accord, Bevan v. Columbia Broadcasting System, Inc., 329 F.Supp. 601, 607 (S.D.N.Y.1971). Because it is virtually impossible to write about a particular historical era or fictional theme without employing certain "stock" or standard literary devices, we have held that scenes a faire are not copyrightable as a matter of law. See Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976).
All of Hoehling's allegations of copying, therefore, encompass material that is non-copyrightable as a matter of law, rendering summary judgment entirely appropriate. We are aware, however, that in distinguishing between themes, facts, and scenes a faire on the one hand, and copyrightable expression on the other, courts may lose sight of the forest for the trees. By factoring out similarities based on non-copyrightable elements, a court runs the [618 F.2d 980] risk of overlooking wholesale usurpation of a prior author's expression. A verbatim reproduction of another work, of course, even in the realm of nonfiction, is actionable as copyright infringement. See Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730 (1978). Thus, in granting or reviewing a grant of summary judgment for defendants, courts should assure themselves that the works before them are not virtually identical. In this case, it is clear that all three authors relate the story of the Hindenburg differently.
In works devoted to historical subjects, it is our view that a second author may make significant use of prior work, so long as he does not bodily appropriate the expression of another. Rosemont Enterprises, Inc., supra, 366 F.2d at 310. This principle is justified by the fundamental policy undergirding the copyright laws the encouragement of contributions to recorded knowledge. The "financial reward guaranteed to the copyright holder is but an incident of this general objective, rather than an end in itself." Berlin v. E. C. Publications, Inc., 329 F.2d 541, 543-44 (2d Cir.), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964). Knowledge is expanded as well by granting new authors of historical works a relatively free hand to build upon the work of their predecessors.
Finally, we affirm Judge Metzner's rejection of Hoehling's claims based on the common law of "unfair competition." Where, as here, historical facts, themes, and research have been deliberately exempted from the scope of copyright protection to vindicate the overriding goal of encouraging contributions to recorded knowledge, the states are pre-empted from removing such material from the public domain. See, e. g., Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 83 S.Ct. 1868, 10 L.Ed.2d 1050 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). "To forbid copying" in this case, "would interfere with the federal policy . . . of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain." Id. at 237, 84 S.Ct. at 782.
[*] Of the United States District Court for the Southern District of New York, sitting by designation.
 Titler's account was published after the release of appellant's book. In an affidavit in this litigation, Titler states that he copied Hoehling's theory of sabotage. Hoehling, however, has never instituted a copyright action against Titler.
 Mooney, his publishers, and Universal entered into an agreement under which (1) Universal acquired the film rights to Mooney's book, (2) Universal agreed to promote sales of the book, and (3) Mooney would receive a percentage fee, tied to sales of his book. Hoehling claims that because of this arrangement, Universal is vicariously liable if Mooney's book, but not the motion picture, is held to infringe his copyright. In view of our disposition of the appeal, however, we need not address this issue.
 At the same time, Judge Smith denied Universal's motion for summary judgment, concluding it was inappropriate prior to the completion of requested discovery.
 In Sheldon, both works were loosely based on an actual murder committed by a young Scottish girl. Judge Hand, however, clearly dealt only with the fictional plots conceived by the respective authors. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir.), cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936).
 This circuit has permitted extensive reliance on prior works of history. See, e. g., Gardner v. Nizer, 391 F.Supp. 940 (S.D.N.Y.1975) (the story of the Rosenberg trial not copyrightable); Fuld v. National Broadcasting Co., 390 F.Supp. 877 (S.D.N.Y.1975) ("Bugsy" Siegel's life story not copyrightable); Greenbie v. Noble, 151 F.Supp. 45 (S.D.N.Y.1957) (the life of Anna Carroll, a member of Lincoln's cabinet, not copyrightable). The commentators are in accord with this view. See, e. g. 1 Nimmer on Copyright § 2.11(A) (1979); Chafee, Reflections on the Law of Copyright: I, 45 Colum.L.Rev. 503, 511 (1945).
 In detailed comparisons of his book with Mooney's work and Universal's motion picture, Hoehling isolates 266 and 75 alleged instances of copying, respectively. Judge Metzner correctly pointed out that many of these allegations are patently frivolous. The vast majority of the remainder deals with alleged copying of historical facts. It would serve no purpose to review Hoehling's specific allegations in detail in this opinion. The following ten examples, however, are illustrative: (1) Eric Spehl's age and birthplace; (2) Crew members had smuggled monkeys on board the Graf Zeppelin; (3) Germany's ambassador to the United States dismissed threats of sabotage; (4) A warning letter had been received from a Mrs. Rauch; (5) The Hindenburg's captain was constructing a new home in Zeppelinheim; (6) Eric Spehl was a photographer; (7) The airship flew over Boston; (8) The Hindenburg was "tail heavy" before landing; (9) A member of the ground crew had etched his name in the zeppelin's hull; and (10) The navigator set the Hindenburg's course by reference to various North Atlantic islands.
 We note that publication of Mooney's book and release of the motion picture revived long dormant interest in the Hindenburg. As a result, Hoehling's book, which had been out of print for some time, was actually re-released after the film was featured in theaters across the country.
Docket Numbers: No. 692, Docket 79-7704.


D.C. Law Library - Chapter 9A. Prohibition of Pre-Employment Marijuana Testing.
↪ Chapter 9A. Prohibition of Pre-Employment Marijuana Testing.
Chapter 9A. Prohibition of Pre-Employment Marijuana Testing.
§ 32–931. Restriction on pre-employment marijuana testing.
(a) An employer may only test a prospective employee for marijuana use after a conditional offer of employment has been extended, unless otherwise required by law.
(4) Prevent the employer from denying a position based on a positive test for marijuana.
(1) “Employer” shall have the same meaning as provided in § 32-1101(6).
(2) “Prospective employee” means any individual applying for employment with an employer.
For temporary (90 days) addition of this section, see § 2 of the Prohibition of Pre-Employment Marijuana Testing Emergency Amendment Act of 2014 (D.C. Act 20-525, Dec. 18, 2014, 61 DCR 13112, 20 STAT 4441).
For temporary (90 days) addition of this section, see § 2 of the Prohibition of Pre-Employment Marijuana Testing Congressional Review Emergency Act of 2015 (D.C. Act 21-31, Mar. 27, 2015, 62 DCR 4536).
For temporary (225 days) addition of this section, see § 2 of the Prohibition of Pre-Employment Marijuana Testing Temporary Act of 2014 (D.C. Law 20-250, April 30, 2015, 62 DCR 1876).
(3) Evaluate the effectiveness of the District government’s treatment programs regarding the use and abuse of marijuana.
For temporary (90 days) addition of this section, see § 3 of the Prohibition of Pre-Employment Marijuana Testing Emergency Amendment Act of 2014 (D.C. Act 20-525, Dec. 18, 2014, 61 DCR 13112, 20 STAT 4441).
For temporary (90 days) addition of this section, see § 3 of the Prohibition of Pre-Employment Marijuana Testing Congressional Review Emergency Act of 2015 (D.C. Act 21-31, Mar. 27, 2015, 62 DCR 4536).


text:
See 333 U.S. 850 .
Messrs. W. H. Harris and E. M. Baynes, both of West Palm Beach, Fla., for respondent.
This case is a companion to Jones v. Liberty Glass Co., 322 U.S. 524 .
The stipulated facts show that on March 16, 1936, the respondent taxpayer filed with the Collector of Internal Revenue a joint individual income tax return for himself and his wife for the calendar year 1935. This disclosed a tax liability of $8,017.01, which was duly paid. In the return the losses and gains from sales of capital assets by the taxpayer and his wife were reported together, the losses of the wife being deducted from the gains of the husband, resulting in a net loss in excess of $2,000. This amount (the allowable limit of loss) was deducted on the return.
On June 7, 1937, the taxpayer was advised at a conference with revenue agents that there was additional income tax due for the year 1935, aggregating $421.80. The taxpayer's check, which was tendered for that amount, was later returned to him. Then by a letter dated June 11, 1937, a revenue agent notified the taxpayer that instead of a deficiency of $421. 80 on the 1935 income tax return there was a deficiency of $19,973.93 and the taxpayer was furnished a computation showing the basis for such determination. The agent relied upon Article 117-5, Regulations 86, later declared void by this Court in Helvering v. Janney, 311 U.S. 189 , 131 A.L.R. 980. After protest and further conference, the taxpayer gave [332 U.S. 535 , 537] the agent a check for $21,527.70, covering the then proposed deficiency assessment of $19,973.93, plus interest of $1,553.77. This check was remitted to the United States Treasury, after having been received by the Collector on July 21, 1937.
On July 14, 1937, the taxpayer and his wife executed an agreement waiving certain statutory restrictions in their favor and consenting to the immediate assessment and collection against them of 1935 income tax in the principal sum of $19,973.93, plus deficiency interest of $1,553.77, which the Commissioner thereafter assessed. The agreement specified in a footnote that it was not a final closing agreement under 606 of the Revenue Act of 1928, 26 U.S.C.A. Int.Rev.Acts, page 458, and that it did not therefore preclude the assertion of a further deficiency if one should be determined, nor did it extend the statutory period of limitation for refund, assessment or collection of the tax.
On January 28, 1941, the taxpayer and his wife filed a claim for refund of $21,105.90, plus interest, on the ground that there had been an illegal assessment and collection since the revenue agents had 'refused to allow the losses of one spouse against the gains of the other spouse in the joint return of husband and wife.' Reference was made to 3313 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, 3313, specifying a four- year period of limitations. The Commissioner of Internal Revenue rejected this claim in reliance upon 322(b)(1) of the Revenue Act of 1934, the same as 322(b)(1) of the Code, 26 U.S.C.A. Int.Rev.Code, 322(b)(1), establishing a two-year period of limitations; it was pointed out that 3313 specifically excludes income taxes from those for which a claim may be filed within four years after payment.
On July 12, 1941, the taxpayer filed his individual claim for refund of $21,527.70 paid with respect to the year 1935. The claim was on the same grounds as the claim previously filed by the taxpayer and his wife. This claim was returned with the request that the wife join [332 U.S. 535 , 538] in the execution of the claim; this request was refused and the claim was returned to the Collector; once again the claim was returned to the taxpayer.
The taxpayer then brought this suit against the Collector to recover the amount alleged to be due in the refund claim. The District Court held that the decision of the Sixth Circuit Court of Appeals in United States v. Lederer Terminal Warehouse Co., 139 F.2d 679, controlled the case and made it clear that the four-year period of 3313 was applicable. Summary judgment was therefore entered for the taxpayer. 66 F.Supp. 258. The Sixth Circuit Court of Appeals affirmed per curiam, 160 F.2d 104, citing its previous decision in the Lederer Terminal case.
For reasons which we have set forth in Jones v. Liberty Glass Co., 332 U.S. 524 , the decision below cannot stand. The two-year period provided by 322(b)(1), rather than the four-year period of 3313, governs income tax refund claims. The overpayment which brings 322(b)(1) into operation occurs whenever the taxpayer has paid an amount over and above his true liability. Hence, if we assume that the deficiency assessment and collection in this case were without legal authority, the taxpayer's payment of that illegal assessment was an overpayment within the meaning of 322(b)(1). And he had two years from th date of that payment within which to file a claim for refund. Since he did not file his claim until three and a half years after payment, the claim was out of time.
It may well be that the taxpayer's refund claim was prompted by this Court's decision in Helvering v. Janney, supra, which set aside the Treasury regulation upon which the deficiency assessment was based. That decision was rendered on December 9, 1940, and the taxpayer filed his first refund claim on January 28, 1941. But assuming that the Janney decision makes clear that the taxpayer [332 U.S. 535 , 539] here made an overpayment, the loss which he now suffers from an application of 322(b)(1) is a loss which is inherent in the application of any period of limitations. Such periods are established to cut off rights, justifiable or not, that might otherwise be asserted and they must be strictly adhered to by the judiciary. Rosenman v. United States, 323 U.S. 658, 661 , 538. Remedies for resulting inequities are to be provided by Congress, not the courts.
Moreover, it is not our province to speculate as to why Congress established a shorter period of limitations relative to the income tax than is the case of those taxes governed by 3313. It is enough that 322(b)(1) creates a two-year period applicable to all income tax refund claims and that the claim in this case is of that type.