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The Second Circuit recently addressed the custody issue in a nontax investigation. United States v. Faux, ___ F.3d ___, 2016 U.S. App. LEXIS 12577 (2d Cir. July 8, 2016), here, reversing United States v. Faux, 94 F. Supp. 3d 258 (D CN 2015), here. The Second Circuit panel's decision is important potentially applicable in some criminal tax investigations.
The United States appeals from an order suppressing statements made by defendant Danielle Faux during a two‐hour interview that was conducted in her home while a search warrant was being executed. The underlying allegation is that Faux fraudulently submitted bills for physical therapy sessions (which would be insurable) that were in fact (uninsured) sessions with personal trainers. The United States District Court for the District of Connecticut (Underhill, J.) ruled that the circumstances of the interview amounted to a custodial interrogation and that the statements must be suppressed because Miranda warnings were not given. It can hardly be denied that the conditions of the interview exerted coercive pressure on Faux: armed law enforcement personnel entered her home at dawn, her vacation plans were abruptly canceled, and she was accompanied by an agent when she moved about her home; however, the circumstances did not rise to the level of a “custodial interrogation,” which is defined narrowly in our case law as circumstances akin to formal arrest. The Government stepped right up to the limits of constitutionally permissible conduct and, based on the facts accepted by the district court, just managed to toe the line. Accordingly, we vacate the order of the district court and remand for further proceedings not inconsistent with this opinion.
Under our precedents, the circumstances of Faux’s interrogation militate against a finding of custody. Faux was questioned in the familiar surroundings of her home. See FNU LNU, 653 F.3d at 153. She was seated at her own dining room table. See Beckwith v. United States, 425 U.S. 341, 342 (1976). She was not handcuffed during the interrogation and was not arrested at its conclusion. See Newton, 369 F.3d at 663. The agents did not display their weapons or otherwise threaten or use any physical force. See Badmus, 325 F.3d at 136. n8 Faux claims the agents “held her arm” as they escorted her to her dining room for the interview; but the agents denied this, the district court made no finding one way or the other, and the gesture is not described as being forceful. In short, there is no evidence that physical force was used, or threatened.
n8 This distinguishes our case from the “police‐dominated environment” that led to a custody finding by the Ninth Circuit in Craighead. There, the agents unholstered their weapons in the presence of the defendant several times. 539 F.3d at 1084‐88. The interrogation took place in a “back storage room” where the door was closed behind the defendant and one of the armed officers stood blocking the door, silently. Id. There is no indication in this case that any of the agents physically imposed themselves to prevent Faux from leaving the dining room; in fact, she was permitted to move throughout the house, albeit accompanied by an agent.
On this record, and given our precedents, it must be concluded that Faux was not in custody. True, the two‐hour interview was conducted while officers swarmed about her home. But she was told 20 minutes into the interview that she was not under arrest; she was never told that she was not free to leave; she did not seek to end the encounter, or to leave the house, or to join her husband; the tone of the questioning was largely conversational; there is no indication that the agents raised their voices, showed firearms, or made threats. Her movements were monitored but not restricted, certainly not to the degree of a person under formal arrest. She was thus never “completely at the mercy of” the agents in her home.
Faux’s statements should not have been suppressed, because no Miranda warnings were necessary.
The Court of Appeals assessed the facts differently than did the district court, Judge Underhill. The Court of Appeals did not have to address Judge Underhill's concluding section which I will quote below (Judge Underhill's opinion cited above is here). I simply say that, since the Court of Appeals found him wrong (but not egregiously wrong) on the merits. So his general comments should be considered. Note that the boldface other than the IV caption is supplied by me, along with a bracketed comment.
The basis for my ruling on the motions to suppress is set forth in full above. What follows is an afterword to that ruling that comments on a routine government practice that I believe is unfair and that should be held to violate the constitutional protections afforded to criminal suspects.
Faux was the sole subject of an eighteen-month, targeted investigation. By the time she was interrogated, a grand jury had been issuing subpoenas for her bank and billing records for over a year. A confidential informant working for the government had recorded countless hours of conversations with Faux in an effort to obtain admissions from her and the government had sent an undercover agent to snoop around at Faux's business to uncover additional evidence of wrongdoing. The goal of these sustained efforts was not to investigate who was committing a crime, but rather to prove that Faux was committing a crime. Indeed, if a crime had been committed, Faux is the only person who could have committed it.
The fruits of the government's investigation enabled it to obtain a judicial determination of probable cause the very day before the interrogation of Faux. Although the government did not seek a warrant for Faux's arrest at that time, McPhillips' search warrant affidavit established probable cause that evidence of a crime would be found at Faux's home and business - and probable cause supporting a search warrant could exist only if there was probable cause to believe that Faux had committed a crime. (This is not a situation, for example, in which Faux's home was believed to be a stash house for someone else's Medicare billing records). In questioning her that morning, the government was not looking for a suspect; it was simply trying to make its case easier to prove at trial by pressuring her into a confession.
At the very least, it was truly unfair for the government to interrogate Faux without telling her that she was targeted for indictment. The government should be commended for the success of its investigation, but that very success should impose prudential limits on the government's interrogation of a person it had all but formally accused of a crime. In order to avoid "the appearance of unfairness," the Department of Justice has a "longstanding policy to advise grand jury witnesses who are known 'targets' of the investigation that their conduct is being investigated for possible violation of Federal criminal law." United States Attorneys' Manual §§ 9-11.150, 151. In addition to being informed of their "target" status, such witnesses are told that they have a right to refuse to answer potentially incriminating questions, that anything they say may be used against them by the grand jury or in a subsequent legal proceeding, and that they have the right to consult with retained counsel. Id.
That policy should have been followed in this case even though the interrogation occurred outside the grand jury room. Faux was certainly a "target," i.e., "a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." Id. Under these circumstances, it was unjust for the government not to advise Faux of her rights to remain silent and to have counsel present during the questioning at her home.
I further believe that the interrogation of a target during the execution of a search warrant should be unconstitutional unless the target is advised of her rights. The Fifth Amendment ought to apply, and Miranda warnings should be required, once "the adversary process has begun, i.e., when the investigative machinery of the government is directed toward the ultimate conviction of a particular individual." Beckwith v. United States, 425 U.S. 341, 350, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976) (Brennan, J., dissenting) (quoting United States v. Oliver, 505 F.2d 301, 304-05 (7th Cir. 1974)). As discussed above, the Supreme Court has confined Miranda's holding to custodial interrogation. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977) ("Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.'"). Yet, the "custody" analysis required by the current state of the law ignores the fundamental difference between the questioning of a mere witness or potential suspect and "the interrogation of an accused for the purpose of securing [her] conviction." Beckwith, 425 U.S. at 350 (Brennan, J., dissenting).
The current state of the law leaves a huge loophole in the constitutional protections afforded criminal suspects - and the government routinely exploits that loophole by carefully planned interrogations during executions of search warrants. The government well knows that the Fifth Amendment will not apply, so long as the interrogation can be described as noncustodial, and that the Sixth Amendment right to counsel will not kick in until the government decides to formally charge the individual it has targeted for indictment. See, e.g., Kirby v. Illinois, 406 U.S. 682, 688, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972) ("[I]t has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him."); United States v. Mandujano, 425 U.S. 564, 579-83, 96 S. Ct. 1768, 48 L. Ed. 2d 212 (1976) (target of grand jury proceedings has no constitutional right to counsel, because witness has yet to be formally charged and is not in custody for Miranda purposes).
By the time an individual becomes a target, that is a "putative defendant," the government generally has all of the information it needs to arrest or indict, but it can choose not to do so before questioning, thereby preventing the target's Sixth Amendment rights from attaching. Agents can wait until they have probable cause to obtain a search warrant and then conduct a planned interrogation of the suspect under the guise of executing the warrant. The agents assigned to interrogate the target can wear street clothes and keep their weapons hidden, in hopes of minimizing the risk a court will find the suspect was in custody. Meanwhile, a multitude of agents can swarm the scene, unsettling the target and putting pressure on her to talk.
It is true that "[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime." Mathiason, 429 U.S. at 495. But the government's practice of conducting interrogations during the execution of a search warrant is designed to manufacture coercion in fact that will not be recognized as coercion under the law.
Questioning an individual targeted for indictment during the execution of a search warrant at her home without advising her of her rights is wrongful conduct that should not be condoned, either ethically or constitutionally. Courts should stop turning a blind eye to the reality that this practice can render the questioning a coercive, custodial interrogation. Any interrogation of a target, whether or not "custodial" as defined by current case law, should occur only after a waiver of rights. Once the adversary process has begun and the "investigative machinery of the government is directed toward the ultimate conviction of a particular individual," Beckwith, 425 U.S. at 350 (Brennan, J., dissenting), that individual deserves the constitutional protection of Miranda warnings.
This comment can do nothing to change the state of the law, but I hope it helps bring about a change in law enforcement practice.

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Though it has been around for decades, many lawyers are unfamiliar with Georgia’s Direct Action Statute. Georgia’s Direct Action Statute (“DAS”) allows plaintiffs to name the insurance company as a party defendant in the case and have the insurance company listed on all pleadings including the verdict form and judgment. The DAS “establishes an independent cause of action against the carrier’s insurer on behalf of a member of the public injured by the carrier’s negligence.” Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508–509 (1987).
The DAS is found in two separate places in the Georgia code. O.C.G.A. § 40-1-112(c) and O.C.G.A. § 40-2-140(d)(4) both empower plaintiffs to “join in the same action the motor carrier and the insurance carrier,” but involve different provisions. Because it is important to determine the applicability of the particular statutory provisions to a particular defendant, these two statutes will be examined separately.
(c) Every foreign or domestic motor carrier, leasing company leasing to a motor carrier, broker, or freight forwarder that engages in interstate commerce in this state shall register with the commissioner or a base state and pay all fees as required by the federal Unified Carrier Registration Act of 2005.
(d) (1) Any intrastate motor carrier, leasing company leasing to a motor carrier, broker, or freight forwarder that engages in intrastate commerce and operates a motor vehicle on or over any public highway of this state shall register with the commissioner and pay a fee determined by the commissioner.
(4) Any person having a cause of action, whether arising in tort or contract, under this Code section may join in the same cause of action the motor carrier and its insurance carrier.
O.C.G.A. § 40-2-140 (emphasis added).
Under § 40-2-1(4), a “[f]or-hire intrastate motor carrier means an entity engaged in the transportation of goods … for compensation wholly within the boundaries of the state.” O.C.G.A. § 40-2-1(5) defines an “[i]ntrastate motor carrier” as “any self-propelled or towed motor vehicle operated by an entity that is used on a highway in intrastate commerce to transport passengers or property and has a gross vehicle weight rating, gross combination weight rating, gross vehicle weight, or gross combination weight of 4,536 kg (10,001 lbs.) or more, whichever is greater.” Finally, O.C.G.A. § 40-2-1(6) defines a “[m]otor carrier” as “[a]ny entity defined by the commissioner or commissioner of public safety who operates or controls commercial motor vehicles as defined in 49 C.F.R. Section 390.5 or this chapter whether operated in interstate or intrastate commerce, or both.” O.C.G.A. § 40-2-1(6)(B). The DAS under § 40-2-140 applies to both interstate and intrastate commerce. See Bramlett v. Bajric, No. 1:12-CV-2148-TWT, 2012 WL 4951213, at *2 (N.D. Ga. Oct. 17, 2012).
49 C.F.R. § 390.5. A “[f]or-hire motor carrier means a person engaged in the transportation of goods or passengers for compensation.” 49 C.F.R. § 390.5 (emphasis added). Additionally, a “[p]rivate motor carrier means a person who provides transportation of property or passengers, by commercial motor vehicle, and is not a for-hire motor carrier.” 49 C.F.R. § 390.5 (emphasus added).
[T]he broad language within section [40-2-140(c)(2)] strongly supports the conclusion that the [direct action statute] is intended to ensure that motorists injured in Georgia can sue a motor carrier and its insurer without regard to the carrier’s scope of business. This conclusion is supported by the statement that the motor carrier’s insurance policy shall provide for the protection of passengers in passenger vehicles and the protection of the public against the negligence of such motor carrier, and its servants or agents, when it is determined to be proximate cause of any injury.
Bramlett, 2012 WL 4951213 at *3 (internal quotation marks omitted).
(a) No motor carrier of household goods or property or passengers shall be issued a motor carrier certificate unless there is filed with the department a certificate of insurance for such applicant or holder on forms prescribed by the commissioner evidencing a policy of indemnity insurance by an insurance company licensed to do business in this state, which policy must provide for the protection, in case of passenger vehicles, of passengers and the public against injury proximately caused by the negligence of such motor carrier, its servants, or its agents; and, in the case of vehicles transporting household goods, to secure the owner or person entitled to recover against loss or damage to such household goods for which the motor common carrier may be legally liable. The department shall determine and fix the amounts of such indemnity insurance and shall prescribe the provisions and limitations thereof. The insurer shall file such certificate. The failure to file any form required by the department shall not diminish the rights of any person to pursue an action directly against a motor carrier’s insurer.
(b) The department shall have power to permit self-insurance, in lieu of a policy of indemnity insurance, whenever in its opinion the financial ability of the motor carrier so warrants.
O.C.G.A. § 40-1-112 (emphasis added).
Under Georgia law, “[a] motor carrier, which may be classified either as a ‘common’ or ‘contract’ carrier, is one which ‘owns, controls, operates, or manages any motor propelled vehicle used in the business of transporting for hire of persons or property on the public highways of Georgia.” Sapp v. Canal Ins. Co., 288 Ga. 681, 682 (2011); see also O.C.G.A. § 40-1-100(12). “Transporting ‘for hire’ is defined as ‘an activity wherein for payment or other compensation a motor vehicle and driver are furnished to a person by another person.’” Sapp, 288 Ga. at 682.
Certain exemptions exist under § 40-1-100(12) that will protect an insurer from a direct action. Specifically, § 40-1-100(12)(B) provides that certain carriers are included within the statutory scope of “motor carrier for hire.” The exemptions include vehicles engaged solely in transporting school children to and from school, taxicabs operating within municipalities, limousines, hotel passenger vehicles, motor vehicles operated not for profit to transport elderly or disabled passengers, vehicles owned and operated by the federal government, and ambulances. O.C.G.A. § 40-1-100(12). The former DAS included an exemption regarding agricultural products. However, the updated code does not include such an exemption.
A recent trend by defense lawyers is to ask the trial court to exclude reference to the direct action defendant insurer in exchange for a stipulation that the insurer be subject to judgment. This strategy, while creative, has been rejected. “[E]vidence of insurance is proper ‘where the insurer is a party to the proceeding.’” Jiles v. Smith, 118 Ga. App. 569, 569 (1968). The goal of this argument is to disarm the DAS on the basis that an insurance company being included as a named party is so inherently prejudicial that the Court should impose limitations on the DAS not imposed by the legislature. The legislature had every opportunity to create a mechanism where the direct action carrier was subject to judgment without revealing its presence as a party to the jury. No such provision is found in the DAS.
The purpose of the DAS is to protect the motoring public. Sapp, 288 Ga. at 682 (citing DeHart v. Liberty Mut. Ins. Co., 270 Ga. 381, 385 (1998)). The legislature decided the importance of protecting motorists is more important than any potential prejudice resulting from having an insurance company as a party defendant. In so doing, it creates and eliminates certain rights. See Morgan Driveway, Inc. v. Canal Ins. Co., 266 Ga. App. 765, 769 (2004). In finding that the DAS creates substantive rights in favor of plaintiffs and against insurers, the Court of Appeals identified multiple rights created or eliminated by The DAS. See id. The DAS creates the right of a plaintiff to join in a lawsuit against the tortfeasor the company that insured the motor carrier. Id. It eliminates “the insurer’s right to avoid having its insured characterized as a motor contract or common carrier, to avoid being named directly in a lawsuit, and consequently the prejudicial impact on jury deliberations of the existence of insurance coverage.” Id.
It is the role of the legislature and not of courts to articulate the parameters of and limitations on the DAS. See Lockhart v. Southern General Ins. Co., 231 Ga. App. 311, 313 (1998). Accordingly, courts should not, and currently have not accepted the invitation to alter the statutory DAS by excluding the identity of the insurance company at trial.
Insurance companies also sometimes argue that their presence in the litigation should not be disclosed to the jury where they provided only a “fronting policy” to the insured motor carrier. A “fronting policy” is “a form of self-insurance in which the deductible is identical to the limits of liability, and the insurance company acts only as surety that the holder of the fronting policy will be able to pay any judgment covered by the policy.” Dorsey v. Fed. Ins. Co., 154 Ohio App. 3d 568, 574, 798 N.E.2d 47, 51 (2003). Essentially, the insurer argues, an insured with a “fronting policy” is self-insured, and therefore naming the insurance company in the litigation is unduly prejudicial where they did not actually provide a policy of insurance. However, this argument is another attempt to end-run the express wording of the DAS and controlling precedent. A motor carrier with a “fronting policy” is not in fact self-insured, since a “fronting policy” is a policy of insurance pursuant to the DAS. O.C.G.A. § 40-1-112 provides the option for self-insurance in lieu of an insurance policy, but a “fronting policy” does not constitute self-insurance under Georgia law. No exception for such a policy exists in the statute or in Georgia case law. Thus, “[u]nder the guise of construing a statute, [courts] are not at liberty to rewrite it.” White Cloud Charter, Inc. v. DeKalb Cnty. Bd. of Tax Assessors, 238 Ga. App. 805, 806 (1999).
When a plaintiff is injured by a motor carrier, the plaintiff may sue the driver alone, or the motor carrier alone, or she may sue them jointly. Seawheels v. Bankers & Shippers Ins. Co. of N.Y., 175 Ga. App. 528, 532 (1985). Likewise, the plaintiff can sue “the insurance carrier alone or, as authorized by the act, she [may join] the motor carrier and the insurance carrier in the same action, irrespectively of whether it sounded in tort or in contract.” Id. But because a motor carrier and its insurer are not considered joint tortfeasors, proper venue as to one defendant is not necessarily proper venue as to the other. Jackson v. Sluder, 256 Ga. App. 812, 814 (2002). Therefore, where a particular venue is proper as to the motor carrier and driver, but not as to the insurer, a plaintiff’s attorney must decide whether to attempt to gain the insurer’s consent to be sued in the same venue as the other defendants, or to sue the insurance company separately.
In Bartja v. National Union Fire Insurance Co. of Pittsburgh, Pennsylvania, 218 Ga. App. 815, 815 (1995), an injured motorist filed suit against the tractor-trailer truck driver, the motor carrier and the insurance carrier under the DAS. Prior to final judgment, the plaintiff voluntarily dismissed without prejudice the driver and motor carrier, leaving only the insurer as a defendant. Id. The plaintiff then re-filed his negligence claims against the motor carrier. Id. at n.1.
As a preliminary matter, we note that a contract action against an insurer of a motor carrier on the policy itself is cognizable as an independent suit without joinder of the motor carrier. . . . Thus, where an actionable injury exists at the time suit is filed, the injured party need not pursue a suit against the motor carrier in order to sue the insurer, even though “under the Motor Carrier Act, OCGA § 46-7-1 et seq., the insurance carrier is not, in reality, a separateparty for purposes of liability, but, rather, is equivalent to a provider of a substitute surety bond, creating automatic liability in favor of a third party who may have a claim for damages for the negligence of the motor common carrier. . . . Accordingly, the resolution of the venue issue as to [the motor carrier] does not affect the viability of this action.
Id. (emphasis added) (internal citations omitted) (internal quotation marks omitted). Thus, where an insurance company objects to venue that is proper as to its insured, plaintiff’s counsel may voluntarily dismiss the insurance company and file suit in the insurance company’s desired venue while keeping the claims against the motor carrier and driver in the original venue. See id. As a practical matter, however, since the insurance company will still have to provide a defense to the other parties in the original venue, it may find that it is more inconvenient to defend two separate lawsuits than it would be to remain in the original venue.
In conclusion, the DAS is an important provision allowing an injured Plaintiff to include the insurer on the judgment. Whether the defendant be a bus, limousine or traditional tractor trailer, a plaintiff’s lawyer should presume the DAS applies and proceed accordingly from the beginning of a case.
 The Direct Action Statute is broad and cases interpreting its various provisions numerous. This article intends to broad-brush the Direct Action Statute generally. For case specific questions, please email Jeff Shiver at jeff@shiverhamilton.com.


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Chaput, Don. Virgil Earp. Western Peace Officer. Photo available. Encampment. Affiliated Writers of America. 1994. 255 pps. Octavo. Hardcover. First edition. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
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Charbonneaux, Jean. Das Hellenistische Griechenland. 330-350 v. Chr. Photo available. Munchen. Verlag C.H. Beck. 1971. 4to. Hard cover. First edition. Illustrated in black, white and color. Folding plates. Fine copy in fine dust jacket (in mylar).
Charbonneaux, Jean. Das Klassische Griechenland. 480-330 v. Chr. Photo available. Munchen. Verlag C.H. Beck. 1971. 4to. Hard cover. First edition. Illustrated in black, white and color. Folding plates. Fine copy in near fine (small chip at head of spine) dust jacket (in mylar).
Charles, George. Memories of Sonoma Coast. Inscribed by the author. A Family... A Century... A Legacy. Photo available. Santa Rosa. Legacy Press. 1996. Octavo. Decorated hard cover. First edition. Illustrated. Important reference work. Inscribed by the author "May 1997 To Bob Here is to good health and good reading. George H. Charles Born at Plantation 1911". Fine copy.
Charleston, Robert (ed). World Ceramics. An Illustrated History. Photo available. London. Hamlyn. 1971. 352 pps. 4to. Hardcover. Reprint. Illustrated in color and black & white. Fine copy in near fine dust jacket (in mylar).
Charman, Terry. The German Home Front. 1939-45. Photo available. New York. Philosophical Library. 1989. 4to. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Charmley, John. Churchill. The End of Glory. A Political Biography. Photo available. New York. Harcourt, Brace. 1993. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Chartock, Roselle K. (ed). Can It Happen Again? Chronicles of The Holocaust. Eyewitness Accounts and Articles... Photo available. New York. Black Dog & Leventhal. 1995. Octavo. Hard cover. First edition thus. Illustrated. Fine copy in fine dust jacket (in mylar).
Chase, Don M. Pack Saddles and Rolling Wheels. Signed by the author. The Story of Travel and Transportation in Southern Oregon and Northwestern California from 1852. Photo available. Crescent City. Self published. 1959. 64 pps. Octavo. Soft cover. First edition. Illustrated. Signed by the Author. Fine copy.
Chase, Harold W. Kennedy and the Press. The News Conferences. Photo available. New York. Thomas Y. Crowell. 1965. Octavo. Soft cover. First edition. Illustrated. Very good copy. Light shelf wear, small closed tear on rear panel.
Chase, J. Smeaton. Yosemite Trails. Camp and Pack-Train in the Yosemite Region of the Sierra Nevada. Photo available. Boston. Houghton Mifflin & Company. 1911. 354 pps. Octavo. Hardcover. Second edition. Illustrated. Important reference work. Fine (owner names on end paper) copy.
Chase, Katherin. Navajo Painting. Photo available. Flagstaff. Museum of Northern Arizona. 1982. 4to. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
Chase, Rafe. Inside the Toy Box. Inscribed note by the author laid in. Photo available. np. Self published. My Publisher. 2009. Folio. Hardcover. First edition. Illustrated in black, white and color. Important reference work. Fine copy in fine dust jacket.
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No. C 04-4459 CW (PR).
Petitioner Michael Al'Faro is a prisoner of the State of California who is incarcerated at San Quentin State Prison as the result of the revocation of his parole. He has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that his continued incarceration is unlawful because he was not provided with a timely revocation hearing. Petitioner first filed his petition in the United States District Court for the Eastern District of California. That court transferred the petition to this Court because both the county of Petitioner's confinement and the county of his conviction are located within this district. 28 U.S.C. § 2241(d).
Petitioner concedes that he has not presented his claims for review to the State courts, stating that "although State habeas corpus is an available remedy, the time required to complete such an action would likely render the petition moot." (Petition at 4 (citation omitted).) Prisoners in State custody who wish to challenge either the fact or length of their confinement by a federal petition for a writ of habeas corpus must first exhaust State judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest State court available with a fair opportunity to rule on the merits of each and every issue they seek to raise in federal court. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). The exhaustion requirement applies to a habeas petition which challenges the legality or duration of a prisoner's custody resulting from the revocation of parole.See Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990),cert. denied, 498 U.S. 1126 (1991). Petitioner's assertion that he does not have time to pursue his claim in State court before it becomes moot does not relieve him of the exhaustion requirement. His allegations do not meet the "exceptional circumstances" required in order for a district court to excuse exhaustion. See 28 U.S.C. § 2254(b)(1); Edelbacher v. Calderon, 160 F.3d 582, 585 (9th Cir. 1998) (requiring "extremely unusual circumstances").
If available State remedies have not been exhausted as to all claims, the district court must dismiss the petition. Rose v. Lundy, 455 U.S. 509, 510 (1982); Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). However, a dismissal solely for failure to exhaust is not a bar to returning to federal court after exhausting available State remedies. Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).
Because Petitioner has not presented his claims to the highest State court they are unexhausted. Accordingly, the petition is DISMISSED without prejudice. All pending motions are DENIED as moot. The Clerk of the Court shall close the file.


Before BALDOCK, ANDERSON, and HENRY, Circuit Judges.
Defendant Clarence Ray South seeks a certificate of appealability to appeal from an order of the district court denying his motion filed pursuant to 28 U.S.C. § 2255. We deny South's application and dismiss the appeal.
To be entitled to a certificate of appealability thus permitting us to address the merits of his appeal, South must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). He can make this showing by establishing that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000) (quotation omitted). We review the district court's "legal rulings on a § 2255 motion de novo and its findings of fact for clear error." United States v. Pearce, 146 F.3d 771, 774 (10th Cir. 1998).
South was convicted by a jury of attempting to manufacture methamphetamine. He was sentenced to 175 months' imprisonment. His conviction was affirmed on appeal.
In his § 2255 motion, South claims he received ineffective assistance of counsel and that the prosecutor was guilty of misconduct. The district court denied relief holding that South had failed to meet the requirements of Strickland v. Washington, 466 U.S. 668 (1984) on his ineffective assistance of counsel claims. Specifically, the court noted that counsel had attempted to reach South's claimed alibi witnesses who apparently would have testified that South was not at the house where methamphetamine was being manufactured when it was destroyed by a fire. As the court noted, not only did counsel make adequate attempts to contact these witnesses, but their testimony was irrelevant as South's whereabouts was not a defense to the charged offense.
South also contends counsel prevented him from testifying at trial. South had a constitutional right "to take the witness stand and to testify in his . . . own defense." Rock v. Arkansas, 483 U.S. 44, 49 (1987). The transcript shows that South was informed of this right, however, he did not take the stand. While South may have been influenced by counsel's advice suggesting that he not testify, any such influence does not amount to ineffective assistance of counsel. Cf. Hooks v. Ward, 184 F.3d 1206, 1219 (10th Cir. 1999) (no error occurred when counsel advised defendant not to testify). Further, South has failed to show that the result of the trial would have been different had he testified. See id. at 1219, 1220.
Finally, the method of calculating the amount of actual methamphetamine attributed to South was approved by this court on South's direct appeal and, thus, counsel was not ineffective at sentencing for not objecting to the government's method of calculating the amount of methamphetamine involved.
The district court found South's claim of prosecutorial misconduct to also be without merit as it did not meet the requirements set forth in United States v. Mechanik, 475 U.S. 66, 70 (1986) and United States v. Pino, 708 F.2d 523, 530-31 (10th Cir. 1983). We agree.
We have reviewed the district court's judgment in light of South's submissions to this court and the record on appeal. We agree that South has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Reasonable jurists could not debate whether his § 2255 "petition should have been resolved in a different manner" or whether "the issues presented were adequate to deserve encouragement to proceed further." Slack, 120 S. Ct. at 1603-04 (quotation omitted).
We DENY South's application for a certificate of appealability and DISMISS this appeal. South's motion to proceed in forma pauperis on appeal is GRANTED. The mandate shall issue forthwith.


text: A jury's determination of damages is considered inviolate unless an award is so excessive as to shock the judicial conscience and raises an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial. Malandris v. Merrill Lynch, Pierce, Fenner & Smith Inc., 703 F.2d 1152, 1168 (10th Cir. 1981); Xiong v. Knight Transportation, Inc., 77 F.Supp.3d 1016, 1020-21 (D. Colo. 2014), aff'd sub nom. Pahoua Xiong v. Knight Transportation, Inc., 658 Fed.Appx. 884 (10th Cir. 2016). See also Blangsted v. Snowmass-Wildcat Fire Prot. Dist., 642 F.Supp.2d 1250, 1256 (D. Colo. 2009). A verdict will not be set aside on this basis, however, unless it is so plainly excessive as to suggest that it was the product of such passion or prejudice on the part of the jury. Id. Such bias, prejudice or passion can be inferred from excessiveness. Malandris, 703 F.2d at 1168. See also Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1262 (10th Cir. 1995); Wells v. Colo. College, 478 F.2d 158, 162 (10th Cir. 1973). Focus should be on “whether the compensatory award was excessive in relation to the injury[.]” McInerney v. United Air Lines, Inc., 463 Fed.Appx. 709, 723 (10th Cir. 2011) (quoting Malandris, 703 F.2d at 1169; Fox v. Pittsburg State Univ., 257 F.Supp.3d 1112, 1150 (D. Kan. 2017)). Cases analyzing the grant of a new trial where damages shock the conscience with their excess recognize the principle that if the court determines that the verdict was the result of passion or prejudice, or for any other reason it appears that the jury erred or abused its discretion on not only on the issue of damages but also on the issue of liability, the court must unconditionally order a new trial and cannot give the plaintiff the option to accept a lesser amount. Malandris, 703 F.2d at 1168 (emphasis added). See also Minneapolis St. Paul and Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S. 520, 521-22 (1931) (“In actions under the federal statute no verdict can be permitted to stand which is found to be in any degree the result of appeals to passion and prejudice.”); Curtis Publishing Co. v. Butts, 388 U.S. 130, 160 (1967) (“a verdict based on jury prejudice cannot be sustained even when punitive damages are warranted”). If the court finds that an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, “then the court must order a new trial on all issues because it is impossible to determine the degree to which these factors affected the jury generally and therefore influenced the determination of liability.” Cook v. Rockwell Int'l Corp., 564 F.Supp.2d 1189, 1201 (D. Colo. 2008), rev'd on other grounds, 618 F.3d 1127 (10th Cir. 2010). See also Higgs v. Dist. Ct., 713 P.2d 840, 860-61 (Colo. 1985); Malandris, 703 F.2d at 1168; Mason v. Texaco, Inc., 948 F.2d 1546, 1560 (10th Cir. 1991).

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A multicultural examination of the principles and philosophies of the visual arts and the ideas expressed through them.
Introduction to the philosophies of art, visual thinking, and principles of visual organization. Designed to give students a broad view of aesthetic traditions, ideologies, and techniques basic to the creation and evaluation of art. Principles and concepts are taught in a common lecture and applied in parallel small studio sections. For non-art majors only.
Introduction to the skill of seeing through exercises that emphasize careful drawing from the still life and utilize a range of drawing materials and techniques. Outside assignments required. Intended for non-art majors on main campus. May be repeated up to 3 credits.
Continued emphasis on drawing from observation by focusing on still life and other subject matter. Covers a range of materials, techniques and concepts. Outside assignments. Restricted to ART and ANVE/DFM majors.
Introduction to two-dimensional space emphasizing visual elements and design principles as they apply to composition. A variety of materials are used in the studio projects and sketchbook exercises. Developing knowledge in vocabulary, color theory and skill in translating ideas into design are encouraged. Restricted to Community Colleges campuses only.
Compositional organization of three-dimensional space explored through a broad range of visual exercises. Resourceful and creative problem solving encouraged. Restricted to Community Colleges campuses only.
Various color theories as they relate to compositional organization. Required for art education majors.
Introduction to the principles of computerized drawing and design. Using the basic concepts, drawing tools, and vocabulary of Adobe Illustrator.
Prerequisite: ART 150, ART 155, or consent of instructor.
Work with basic concepts, tools, and vocabulary of Adobe Photoshop to create effective visual communication. Includes selection tools, cloning, copying and pasting, color correction, image restoration, filters, and special effects. Community Colleges only.
Importing and exporting images and text into various desktop publishing formats. Exploring imaging, drawing, and page layout applications. Introduction to typography.
Introduction to the creation of well-designed and organized Web sites. Emphasis on building creative but functional user-friendly sites. Introduction to HTML, Flash, Java Script, and Web-authoring software. Community Colleges only. Same as OEPT 165.
Introduction to drawing with a focus on technical, structural, and methodological skills. Subjects include still life and live figure models.
Continued work in drawing with emphasis on personal creative endeavor. Community Colleges only.
Prerequisites: ART 150, ART 151, and ART 250.
Introduction to the principles of visual communication and digital media, letterforms, typography and identity marks. Projects produced using conventional and digital tools.
Introduction to basic skills of painting through various exercises that emphasize working from observation, images and imagination. May be repeated up to 3 credits.
Prerequisite(s): ART 250 or ART 150.
The investigation of formal aspects of painting, an examination of painting techniques, and an exploration of various methodologies regarding form and content as applied to critical thinking skills through medium of paint.
Prerequisite(s): ART 150, ART 260.
Varied painting media: continued development of painting skills.
Prerequisites: ART 150, ART 155 (for art majors), ART 260, or consent of instructor.
Beginning sculpture students “explore space” while learning new processes and skills, including mold making, welding and woodworking.
Refine general marketing strategies, personal portfolio and resumes. Define, target, and penetrate personal target markets. Students develop individual promotional packages.
Prerequisites: ART 163, ART 269, and ART 272, or consent of instructor.
Design custom graphics and create special effects with filtering, special effects on type, graphing, technical illustrations, and three-dimensional drawing using Adobe Illustrator.
Prerequisites: ART 157, ART 160, and ART 161, or consent of instructor.
Introduction to the production of digital images within the context of contemporary art. Utilizes digital SLR cameras with an emphasis on basic camera operation, picture composition, image processing and digital workflow. A DSLR camera is required. May be repeated up to 3 credits.
Refining of individual creative styles and technical skills using Adobe Photoshop. Emphasis on input and output predictability, and working with large file productions. Community colleges only. Restricted to: Community Colleges only.
Introduction to the technical processes and conceptual concerns of working with the ceramic material. Students will explore various methods of forming with earthenware to make both functional and expressive works out of clay.
Beginning ceramics, complementary half to ART 275. (ART 275 and ART 276 do not need to be taken consecutively.) Basic building techniques of coil, slab, and throwing are introduced. High-fire and low-fire clays are used.
Introduction to the field of printmaking through projects that focus on specific processes, such as relief, intaglio, collography, paper lithography, and a variety of transfer and stencil techniques. Students engage in several assignments that are collaborative, as well as individual projects designed for development of personal aesthetics.
Introduction to fundamental processes, design, and conceptual development for metal fabrication of jewelry and functional/non-functional objects.
Instruction in the fundamental fabrication and design techniques for stained glass. Introduction to visual decision making skills, historical, and critical issues of the medium. Community Colleges only.
Specific subjects and credits to be announced in the Schedule of Classes. No more than 9 credits toward a degree.
An introduction to the principles of art history within a chronological framework of the art of the Western World. All media will be discussed. From prehistoric times to the fourteenth century.
Continuation of ART 295, Art of the Western World from Late Gothic to the present. May be repeated up to 3 credits.
This reading- and writing-intensive course will introduce students to various approaches of writing about historical art.

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ART 150
ART 155
ART 150
ART 151
ART 250
ART 250
ART 150
ART 150
ART 260
ART 150
ART 155
ART 260
ART 163
ART 269
ART 272
ART 157
ART 160
ART 161
ART 275
ART 276
ART 295


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G.R. No. 167533 - Audi Ag v. Hon. Jules A. Mejia, et al.
AUDI AG, Petitioner, v. HON. JULES A. MEJIA, in his capacity as Executive Judge of the Regional Trial Court, Alaminos City; AUTO PROMINENCE CORPORATION; and PROTON PILIPINAS CORPORATION, Respondents.
Before us for resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, alleging that respondent Executive Judge Jules A. Mejia of the Regional Trial Court (RTC), Alaminos City (Pangasinan) acted with grave abuse of discretion in issuing the Orders dated March 29 and July 6, 2005 in Civil Case No. A-3010, entitled "Auto Prominence Corporation and Proton Pilipinas Corporation, Plaintiffs, v. Audi AG, Defendant."
Auto Prominence Corporation and Proton Pilipinas Corporation (Proton), respondents, are corporations duly organized and existing under Philippine laws engaged in the business of assembling, buying, selling, distributing, importing, marketing, and servicing of motor vehicles. They have a common principal office at Barangay Alos, Alaminos City.
On March 21, 2005, respondents filed with the RTC, Alaminos City a complaint for specific performance and injunction (with application for a temporary restraining order [TRO] and preliminary injunction) against petitioner Audi AG, docketed as Civil Case No. A-3010. The complaint alleges inter alia that on August 1, 1996, petitioner appointed respondent Proton as its sole assembler and distributor of Audi cars in the Philippines under an Assembly Agreement and a Distributorship Agreement; that respondent Proton was induced to open, promote, develop and sell Audi brand cars in the Philippines upon petitioner's representations that it (respondent Proton) will be the exclusive assembler and distributor of Audi cars and local parts manufacturer for export purposes, for a period of 12 months and, thereafter, for an indefinite period upon the establishment of the assembly and distributorship network; that respondent Proton, relying upon petitioner's representations, was enticed to: (a) borrow money to establish the assembly plant and building for petitioner; (b) buy tools and equipment for its assembly plant and distributorship; (c) spend for its showrooms and offices; and (d) pay its license fees, technical brochure and other expenses; that it turned out that petitioner did not include the Philippines in its ASEAN Assembly Strategy program, but only Malaysia, thus frustrating respondent Proton's assembly preparations; that with evident bad faith, petitioner has been negotiating for the transfer of the distributorship of the Audi cars to a third party; and that both respondents were surprised when they received from petitioner a letter dated September 27, 2004 terminating the assembly and the distributorship agreements for reasons which to them are unjustified. Thus, the complaint prays that petitioner be ordered to comply with the exclusive assembly and distributorship agreements; and that, pending the determination of the merits of the case, a TRO and a writ of preliminary injunction be issued ordering petitioner, its representative, or any person claiming rights under it, to maintain the status quo ante, and restrain them from doing any act contrary to the parties' existing agreements.
After the complaint was filed, respondent Executive Judge Jules A. Mejia issued an Order (a) directing that summons and a copy of the complaint be served upon petitioner through extra-territorial service; and (b) setting on March 29, 2005 the hearing of the application for TRO.
On March 29, 2005, after conducting a hearing wherein respondents presented two witnesses, respondent Executive Judge issued the Order in question directing the issuance of a TRO effective for twenty (20) days, enjoining petitioner from terminating the contracts executed by the parties, and directing it or any person claiming rights under it, to maintain the status quo ante. The raffle of the case was set on April 8, 2005 at two o'clock in the afternoon.
Petitioner contends that respondent Executive Judge's March 29, 2005 Order granting a TRO for twenty (20) days was "issued in a capricious, arbitrary, and whimsical manner constituting grave abuse of discretion, amounting to lack or excess of jurisdiction" because (a) the Order violates the second paragraph of Section 5, Rule 58 of the 1997 Rules of Civil Procedure, as amended; and (b) it was issued even before Civil Case No. A-3010 was raffled to a ponente.
Meanwhile, petitioner filed with the trial court an Urgent Motion for Voluntary Inhibition of respondent Executive Judge. But the motion was denied in an Order dated July 6, 2005, prompting petitioner to file a supplemental petition2 praying for the nullification of this Order.
In their Opposition3 and Comment,4 respondents pray that the petition be dismissed for lack of merit. Specifically, they alleged that the petition suffers from the following defects: (1) it was filed in the absence of a motion for reconsideration of the assailed Order; (2) petitioner failed to observe the doctrine of hierarchy of courts; (3) the certification against forum shopping is defective as it was executed by counsel for petitioner, not by the latter's officers; and (4) the issue raised against the challenged Order of March 29, 2005 had become moot and academic.
Indeed, we cannot ignore the fatal defects in the petition.
in the ordinary course of law."6 Such indispensable requirement may, in well recognized instances, be glossed over to prevent a miscarriage of justice, or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.7 Petitioner failed to show sufficient justification for its failure to comply with the requirement.
WHEREFORE, the instant petition is DISMISSED. Costs against petitioner.
1 Petition; Rollo, p. 4.
5 Abacan, Jr. v. Northwestern University, Inc., G.R. No. 140777, April 8, 2005, 455 SCRA 136; Metro Transit Organization, Inc. v. Court of Appeals, G.R. No. 142133, November 19, 2002, 392 SCRA 229.
6 Section 1, Rule 65 of the 1997 Rules of Civil Procedure, as amended.
7 Acance v. Court of Appeals, G.R. No. 159699. March 16, 2005, 453 SCRA 548.
8 Metro Transit Organization, Inc. v. Court of Appeals, supra, citing Zapata v. NLRC, 175 SCRA 56 (1989).
9 Id., citing Seagull Shipmanagement and Transport, Inc. v. NLRC, 333 SCRA 236 (2000).
10 Id., citing Zapata v. NLRC, supra.
11 Sherwill Development Corporation v. Sitio Sto. NiÃ±o Residents Association, Inc., G.R. No. 158455, June 28, 2005, 461 SCRA 517, citing Del Rosario v. MontaÃ±a, 430 SCRA 109 (2004).
12 Id., citing Liga Ng Mga Barangay National v. Atienza, Jr., 420 SCRA 562 (2004); Microsoft Corporation v. Best Deal Computer Center Corporation, 389 SCRA 615 (2002).
13 United Pulp and Paper Co., Inc. v. United Pulp and Paper Chapter-Federation of Free Workers, G.R. No. 141117, March 25, 2004, 426 SCRA 329, citing Kowloon House/Willy Ng v. Hon. Court of Appeals, G.R. No. 140024, June 18, 2003; Commissioner of Internal Revenue v. Court of Appeals, 351 SCRA 436 (2001).

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1. Section 13(4) of the Interstate Commerce Act, which empowers the Commission to remove unjust discrimination by intrastate rates against interstate commerce by prescribing minimum intrastate rates, is to be taken as supplementing § 15a(2), and, so construed, empowers it to raise intrastate rates so that the intrastate traffic may produce its fair share of the revenue required to meet maintenance and operating costs and to yield a fair return on the value of property devoted to the transportation service, both interstate and intrastate. P. 290 U. S. 75.
2. In the performance of its duty, under § 15a(2), of providing adequate revenue for groups of carriers, the Commission is not obliged to undertake the impossible task of finding, in advance of the order raising rates, the reasonableness of each individual rate; it is enough if, with proper procedure and supported by evidence, it find that the increases to be allowed, when applied to members of a group, will generally not exceed reasonable maxima, reserving to all interested parties the right to secure modification of any particular rates which, when challenged, may be found to be unjust or unreasonable. P. 290 U. S. 75.
3. This same principle applies when intrastate rates are raised, under § 13(4), to the level of interstate rates increased under § 15a(2). P. 290 U. S. 78.
revenue as would result from increased intrastate rate, the intrastate traffic in question was not bearing its fair share of the burden of maintaining a national transportation system, and that the probability that proposed increase of those rates would increase the revenue was sufficiently great to make the increase a reasonable exercise of sound managerial judgment. P. 290 U. S. 80.
5. The fact that increases of interstate rates were permissive only does no affect the validity of an order under § 13(4) for corresponding increases of intrastate rates which is to remain in effect only so long as the increases of interstate rates shall be maintained by the carriers. P. 290 U. S. 82.
Appeal from a decree of the District Court of three judges setting aside an order of the Interstate Commerce Commission for increased intrastate rates. See 186 I.C.C. 615; 178 id. 539; 179 id. 215.
in Louisiana, by prescribing an increase in intrastate rates on specified commodities, in amounts equal to increases in interstate rates on the same commodities, established by appellant carriers under the authority of an earlier order of the Commission in the Fifteen Per Cent Case, 1931, 178 I.C.C. 539; 179 I.C.C. 215.
"rates which shall be not lower than the rates now in force and applicable to the interstate transportation of said traffic within the State of Louisiana, plus the surcharge authorized by the findings in the Fifteen Per Cent Case . . . on corresponding interstate traffic, so long as such surcharges are maintained. . . ."
In setting aside the order, the court below rested its decision upon the inadequacy of the Commission's findings.
It thought that, as the Commission, in the Fifteen Per Cent Case, 1931, did not find that the several interstate rates resulting from the authorized surcharges would each be just and reasonable, there was no basis for raising the intrastate rates under § 13(3) and (4), see Florida v. United States, 282 U. S. 194; cf. Georgia Pub. Serv. Comm'n v. United States, 283 U. S. 765, and that the order could not be supported as a revenue measure because there were no findings that the increased rates would produce an increase in carrier income. It is also argued here that the order assailed is invalid because the Commission, in its earlier order, did not require the carriers to increase their rates interstate, but only permitted them to do so at their option.
as nearly as may be, to a fair return upon the aggregate value of the railway property of such carriers held for and used in the service of transportation. . . ."
See Wisconsin Railroad Comm'n v. C., B. & Q. R. Co., 257 U. S. 563; Dayton-Goose Creek Ry. v. United States, 263 U. S. 456; New England Divisions Case, 261 U. S. 184, 261 U. S. 189. Associated provisions calculated to preserve carrier income in the interests of an efficient transportation service were those empowering the Commission to permit pooling of traffic and earnings, § 407 of the Transportation Act amending § 5 Interstate Commerce Act, and to fix minimum, as well as maximum, rates, § 418 of Transportation Act amending § 15(1) Interstate Commerce Act, to preclude the absorption of traffic of weaker competitors by cutthroat competition. See New England Divisions Case, supra, 261 U. S. 190.
Under earlier acts, the Commission had been given power to remove unjust discrimination in rates or service between shippers or localities, § 2 Act of February 4, 1887, 24 Stat. 379, 880; § 3 Interstate Commerce Act, and rates in interstate commerce were required to be reasonable "in the sense of furnishing an adequate compensation for the particular service rendered and the abolition of rebates." Wisconsin Railroad Comm'n v. C., B. & Q. R., Co., supra, 257 U. S. 585; § 1 Act of 1887; § 4 Act of 1906, 34 Stat. 589; § 15 Interstate Commerce Act. Under these acts, the Commission had the power to order the carriers to desist from discrimination against interstate shippers by intrastate rates, Shreveport Case, 234 U. S. 342, but, until the Transportation Act, it was without authority to prescribe intrastate rates.
held that this section is to be construed in the light of § 15a(2) and as supplementing it, so that the forbidden discrimination against interstate commerce by intrastate rates includes those cases in which disparity of the latter rates operates to thwart the broad purpose of § 15a to maintain an efficient transportation system by enabling the carriers to earn a fair return. So construed, § 13(4) confers on the Commission the power to raise intrastate rates so that the intrastate traffic may produce its fair share of the earnings required to meet maintenance and operating costs and to yield a fair return on the value of property devoted to the transportation service, both interstate and intrastate. Wisconsin Railroad Comm'n v. C., B. & Q. R. Co., supra, 257 U. S. 586-590; New York v. United States, 257 U. S. 591, 257 U. S. 601; Florida v. United States, supra, 282 U. S. 211; Louisiana v. United States, 284 U. S. 125, 284 U. S. 131; see Nashville, C. & St.L. Ry. Co. v. Tennessee, 262 U. S. 318.
instead of adjudicating upon the rates in a large territory on evidence deemed typical of the whole rate structure, it were obliged to consider the reasonableness of each individual rate before carrying into effect the necessary increased schedule.
It cannot be supposed that Congress, in placing this duty on the Commission, intended, in the absence of some express provision compelling it, that the Commission should follow a procedure which would preclude its acting effectively, if at all. That such was not its intention appears from the words of the statute. It does not, in terms, command the Commission to find that each rate prescribed under § 15a is just and reasonable, as prerequisite to a general increase in rates. It provides only that the action of the Commission in raising rates so that they may yield a fair return is to be "in the exercise of its power to prescribe just and reasonable rates," with the qualification, in the proviso to the granted authority to increase rates, "that the Commission shall have reasonable latitude to modify or adjust any particular rate which it may find to be unjust or unreasonable. . . ." When read in the light of the subject matter to which the section is to be applied, the production of increased revenue by a nationwide or group increase of rates, it is apparent that these provisions cannot rightly be construed to require the Commission, as a condition of any action by it, to find the reasonableness of each individual rate. If the Commission were required to do that, there would be no occasion for the granted latitude to modify those rates found to be unjust or unreasonable.
the duty broadly to increase carrier revenue, it is enough if the Commission, in the first instance, makes such inquiry and investigation as would enable it to say that the prescribed increases, when applied to members of the group, will generally not exceed a reasonable maximum. The extent of this inquiry and the detail of investigation cannot be marked by this Court with certainty. The size of the group dealt with, the nature of the traffic, the urgency of the relief demanded, these and other factors should condition the Commission's procedure in each case. But, with proper procedure, the ultimate finding that the rates as generally applied are reasonable, supported by evidence, and accompanied by suitable reservation of the rights of all interested parties to secure modification of any particular rate which, when challenged, is found to be unjust or unreasonable, complies with the statute. The requirement that increase of rates by Commission action is to be in the exercise of its power to prescribe reasonable rates is thus observed, but in conformity to the administrative necessities which the proviso contemplates.
"the resulting rates will in all respects be subject to investigation and determination as to the lawfulness of particular rates or schedules of rates, as provided by the act."
The Commission's action complied with § 15a, see New England Divisions case, supra, 261 U. S. 197.
would similarly prevent compliance with that under § 13(4). Since neither can be performed effectively without performance of the other, the standard of reasonableness to which the Commission must conform is necessarily the same under both, and that implies that, under § 13(4), as under § 15a(2), reasonable latitude must be given for modification of particular rates found to be unreasonable.
The case of the Louisiana rates was not alone before the Commission, and it should not be treated as though it were. A number of other states contesting, in the aggregate, a wide range of rates were heard at the same time. Had the Commission been required to go into the circumstances of each item with particularity, the purpose of its original order would have been defeated. It sufficed that the Commission found that Louisiana showed nothing in the circumstances of its agriculture and industry or its traffic conditions so different from the rest of the country as to lead to the conclusion that the intrastate rates, raised to the reasonable general interstate level, would not themselves be reasonable, and that it saved the rights of interested parties to test the reasonableness of any individual rate.
A question different from that before us was presented in Florida v. United States, supra. There, the discrimination was essentially one of undue prejudice against shippers, confined by the evidence to rates prevailing in northern Florida. It involved only one railroad and one commodity. It was not the general revenue proceeding authorized by § 15a. The court was careful to point out that the Commission had undertaken to establish a statewide level of intrastate rates without any findings with respect to the corresponding interstate traffic which would tend to support the conclusion that a statewide alteration of intrastate rates was necessary to protect the interstate commerce involved.
2. The objection that the finding of unjust discrimination by the intrastate rates against interstate commerce is unsupported by any finding that the increased rates would produce increased revenue is rested upon the statement, separated from its context in the Commission's report, "we conclude that no positive finding in regard to the revenue outcome of the increases can be justified." It is manifest that any finding of undue prejudice to interstate commerce, based upon the failure of prevailing intrastate rates to contribute their fair share to the support of a national transportation system, must necessarily rest upon a prediction that an increase of the intrastate rates will result in an increase of revenue, a prediction involving, especially since 1930, many elements of uncertainty. There are no formal requirements for the findings to be made by the Commission in this type of case, see Manufacturers Ry. Co. v. United States, 246 U. S. 467, 246 U. S. 490, and while the particular form in which they were cast here is not to be commended, the report, read as a whole, sufficiently expresses the conclusion of the Commission, based upon supporting data, including estimates of experienced railroad traffic men, to which the report refers, that the probability of increased revenue was sufficiently great to make the increase of rates a reasonable exercise of sound managerial judgment. This, we think, meets the requirements of the statute.
"The plan outlined in the appendix we estimate will produce between one hundred million and one hundred twenty-five million dollars increased revenue on the basis of present traffic if applied to both state and interstate."
1931, supra, respondents' intrastate rates in Louisiana on the same classes and commodities, to which no corresponding surcharges have been added, have resulted and will result in unjust discrimination against interstate commerce, except in the case of intrastate rates on sugar cane."
"It is estimated that, based on the traffic of 1931, the application of the surcharges on the excepted commodities would produce additional annual revenue"
"Railroad traffic men expressed the opinion that, notwithstanding possible diversion of traffic to other transportation agencies, the addition of the surcharge to the intrastate rates would produce an increase in revenue."
"There is nothing of record which warrants the conclusion that the situation as to fertilizer, cotton seed, cotton seed products, fresh vegetables, or sweet potatoes is different in Louisiana from what it is in other parts of the country or in surrounding states where surcharges are now being assessed. Similar allegations with respect to the possible effect of truck competition and as to the ability of various commodities to stand any increase were made in Ex parte 103 [The Fifteen Per Cent Case, 1931] and were considered in reaching our conclusions. Nor is there anything to show that the movement of sweet potatoes will be adversely affected by the application of a surcharge thereon without a similar charge on other potatoes."
when attacked before district courts of three judges in Montana and Kentucky. Montana v. United States, 2 F.Supp. 448; Kentucky v. United States, 3 F.Supp. 778. Nor do they differ in any material way from those in Wisconsin Passenger Fares, 59 I.C.C. 391, 393, which were deemed adequately to support the finding of undue prejudice in Wisconsin Railroad Comm'n v. C., B. & Q. R. Co., supra, 257 U. S. 580. See also Georgia Pub. Service Commission v. United States, supra; Alabama v. United States, 283 U. S. 776; Louisiana Public Service Comm'n v. Texas & New Orleans R. Co., 284 U. S. 125.
3. The fact that the order of the Commission for the increase of interstate rates was permissive only does not affect the validity of its order prescribing minimum intrastate rates. The interstate rates, after the addition of the authorized surcharges, were lawful rates in interstate commerce, which was discriminated against by the failure to make corresponding increases in intrastate rates. This discrimination the Commission removed in the manner authorized by § 13(4), by prescribing minimum intrastate rates at the same level as the interstate rates. The order precluded any unauthorized interference with state regulatory power by providing that it should be effective only so long as the surcharges upon interstate rates should be maintained by the carriers.
"§ 15a(2) In the exercise of its power to prescribe just and reasonable rates, the Commission shall initiate, modify, establish or adjust such rates so that carriers as a whole (or as a whole in each of such rate groups or territories as the Commission may from time to time designate) will, under honest, efficient and economical management and reasonable expenditures for maintenance of way, structures and equipment, earn an aggregate annual net railway operating income equal, as nearly as may be, to a fair return upon the aggregate value of the railway property of such carriers held for and used in the service of transportation: Provided, That the Commission shall have reasonable latitude to modify or adjust any particular rate which it may find to be unjust or unreasonable, and to prescribe different rates for different portions of the country."
"Whenever, in any such investigation, the Commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce, on the one hand, and interstate or foreign commerce, on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, which is forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination. . . ."


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Elpidite: Mineral information, data and localities.
The name derives from the Greek word for hope, representing the hope that other interesting minerals would be found at the type locality.
This page provides mineralogical data about Elpidite.
Lindström, G. (1894) Elpidit, ett nytt mineral från Igaliko, Geologiska Föreningens i Stockholm Förhandlingar: 16: 330-335.
Calcian Elpidite High-temperature elpidite of magmatic origin typical for agpaitic granites. Usually enriched in Ca; has orange colour in difference from secondary hydrothermal low-temperature secondary elpidites from nepheline-syenites.
Albite 43 photos of Elpidite associated with Albite on mindat.org.
Rhodochrosite 40 photos of Elpidite associated with Rhodochrosite on mindat.org.
Aegirine 20 photos of Elpidite associated with Aegirine on mindat.org.
Pyrite 15 photos of Elpidite associated with Pyrite on mindat.org.
Nenadkevichite 10 photos of Elpidite associated with Nenadkevichite on mindat.org.
Leifite 9 photos of Elpidite associated with Leifite on mindat.org.
Quartz 9 photos of Elpidite associated with Quartz on mindat.org.
Caryochroite 7 photos of Elpidite associated with Caryochroite on mindat.org.
Neighborite 4 photos of Elpidite associated with Neighborite on mindat.org.
Lorenzenite 3 photos of Elpidite associated with Lorenzenite on mindat.org.
9.DG.10 Riversideite Ca5(HSi3O9)2 · 2H2O Orth.
72.5.4.1 Armstrongite CaZr[Si6O15] · 3H2O Mon.
Neronova, N.N., Belov, N.V. (1964) Crystal structure of elpidite, Na2Zr[Si6O15]·3H2O. Soviet Physics - Crystallography: 9: 700-705.
Cannillo, E., Rossi, G., Ungaretti, L. (1973) The crystal structure of elpidite. American Mineralogist: 58: 106-109.
Currie, K.L., Zaleski, E. (1985) The relative stability of elpidite and vlasovite: a P-T indicator for peralkaline rocks. The Canadian Mineralogist: 23: 577-582.
Grigor’eva, A.A., Zubkova, N.V., Pekov, I.V., Kolitsch, U., Pushcharovsky, D.Yu., Vigasina, M.F., Giester, G., Dordević, T., Tillmanns, E., Chukanov, N.V. (2011) Crystal chemistry of elpidite from Khan Bogdo (Mongolia) and its K- and Rb-exchanged forms. Crystallography Reports: 56: 832-841.
Merlino, S., Bonaccorsi, E. (2008) Double wollastonite chains: topological/conformational varieties, polytypic forms, isotypic compounds. Zeitschrift für Kristallographie: 223: 85-97.
Grice, J.D., Rowe, R., Poirier, G. (2015) Hydroterskite: A new mineral species from the Saint-Amable Sill, Quebec, and a comparison with terskite and elpidite. The Canadian Mineralogist: 53: 821-832.
Cametti, G., Armbruster, T., Nagashima, M. (2016) Dehydration and thermal stability of elpidite: An in-situ single crystal X-ray diffraction study. Microporous And Mesoporous Materials: 227: 81-87.
The following Elpidite specimens are currently listed for sale on minfind.com.
Chao, G.Y. (1967), Leucophanite, elpidite, narsarsukite from the Desourdy quarry, Mont St. Hilaire, Quebec. Canadian Mineralogist: 9: 286-87; Henderson, W. (1979), Oriented overgrowth of labuntsovite on elpidite from Mont St.-Hilaire, Quebec, Canada. Mineralogical Record: 10: 970; Falls R.B.(1983), Elpidite and narsarsukite from Mont Saint-Hilaire, Quebec. B.S. Thesis, University of Toronto, Canada.
TARASSOFF, P., HORVÁTH, L. and PFENNINGER-HORVÁTH, E. (2006) Famous mineral localities: the Francon quarry, Montréal, Québec. Mineralogical Record, 37, 5-60.
BIRKETT, T.C., MILLER, R.R., ROBERTS, A.C., & MARIANO, A.N. (1992) Zirconium bearing minerals from the Strange Lake intrusive complex, Quebec Labrador. Canadian Mineralogist, 30, 191-205.; BIRKETT, T.C., MILLER, R.R., ROBERTS, A.C., & MARIANO, A.N. (1992) Zirconium bearing minerals from the Strange Lake intrusive complex, Quebec Labrador. Canadian Mineralogist, 30, 191-205.
Mineev D.A. (1968) Geochemistry of apogranites and rare-metal metasomatites of North-Western Tarbagatai, - Moscow, Nauka, 276p. (in Rus.); Sokolova, E., Abdu, Y., Hawthorne, F. C., Stepanov, A. V., Bekenova, G. K., & Kotel’nikov, P. E. (2009). Camaraite, Ba3NaTi4 (Fe2+, Mn) 8 (Si2O7) 4O4 (OH, F) 7. I. A new Ti-silicate mineral from the Verkhnee Espe Deposit, Akjailyautas Mountains, Kazakhstan.
Kynicky, J., et al., (2018) The role of carbonate-fluoride melt immiscibility in shallow REE deposit evolution, Geoscience Frontiers.
Kovalenko V.I., Tsaryeva G.M., Goreglyad A.V., Yarmolyuk V.V., Troitsky V.A., Hervig R.L., Farmer, G.L., (1995) The peralkaline granite-related Khaldzan-Buregtey rare metal (Zr, Nb, REE) deposit, western Mongolia - ECONOMIC GEOLOGY, v. 90, p. 530–547.; Kovalenko, V. I., Yarmolyuk, V. V., Sal nikova, E. B., Kartashov, P. M., Kovach, V. P., Kozakov, I. K., ... & Yakovleva, S. Z. (2004). The Khaldzan-Buregtei Massif of peralkaline rare-metal igneous rocks: structure, geochronology, and geodynamic setting in the Caledonides of Western Mongolia. Petrology c/c of Petrologiia, 12(5), 412-436.
Kovalenko, V. I., Tsaryeva, G. M., Goreglyad, A. V., Yarmolyuk, V. V., Troitsky, V. A., Hervig, R. L., & Farmer, G. (1995). The peralkaline granite-related Khaldzan-Buregtey rare metal (Zr, Nb, REE) deposit, western Mongolia. Economic Geology, 90(3), 530-547.; Kempe, U., Möckel, R., Graupner, T., Kynicky, J., & Dombon, E. (2015). The genesis of Zr–Nb–REE mineralisation at Khalzan Buregte (Western Mongolia) reconsidered. Ore Geology Reviews, 64, 602-625.
Andresen, P., Friis, H., Kjærnet, T. & Larsen, A.O. (2018): The minerals of the Jahren pegmatite, one of the major pegmatites in the Larvik Plutonic Complex. Norsk Mineralsymposium 2018: 5-22.
Svein a. Berge collection; Larsen, K. E. (2015). Noen funn av mineraler i Norge 2013-2015. Norsk Mineralsymposium 2015, 79-88.
Хомяков А.П., Курова Т.Ф., Шумяцкая Р.Г. и др. (1981) О новом цирконосиликате Na5Zr2[Si6O18]Clx2H2O и его кристаллической структуре,- ДАН СССРб т.257, №3, с. 622-624.
Pekov, I. (1998) Minerals First discovered on the territory of the former Soviet Union 369p. Ocean Pictures, Moscow; Pekov I V, Chukanov N V, Khomyakov A P, Rastsvetaeva R K, Kucherinenko Y V, Nedel'ko V V (1999) Korobitsynite, Na3-x(Ti,Nb)2[Si4O12](OH,O)2·3-4H2O, a new mineral from Lovozero massif, Kola Peninsula, Zapiski Vserossijskogo Mineralogicheskogo Obshchestva, 128, issue 3 72-79; Pekov, I.V. (2000): Lovozero Massif. Moscow, Ocean Pictures Ltd, 480 pp.; Chukanov, N. V., Ermolaeva, V. N., Pekov, I. V., Sokolov, S. V., Nekrasov, A. N., & Sokolova, M. N. (2005). Raremetal mineralization connected with bituminous matters in late assemblages of pegmatites of the Khibiny and Lovozero massifs. New Data Minerals, 40, 80-95.
[AmMin 85:1322]; Arzamastsev, A., Yakovenchuk, V., Pakhomovsky, Y., & Ivanyuk, G. (2008). The Khibina and Lovozero alkaline massifs: Geology and unique mineralization. In Guidbook for 33rd International Geological Congress Excursion (No. 47, p. 58).
Sabine, P.A. (196O), Bull. geol. Surv. Gt. Britain, 16, 167-8. [Confirms an earlier record by Lacroix (1921)]; Young, B.R., Hawkes, J.R., Merriman, R.J. and Styles, M.T. (1978) Bazirite, BaZrSi3O9, a New Mineral from Rockall Island, Inverness-shire, Scotland. Mineralogical Magazine, vol. 42, n° 321, 35-40.; Embrey, P.G. (1978) Fourth supplementary list of British minerals. Mineralogical Magazine, vol. 42, n° 322, 169-177.
Young, B. R., Hawkes, J. R., Merriman, R. J., & Styles, M. T. (1978). Bazirite, BaZrSi 3 O 9, a new mineral from Rockall Island, Inverness-shire, Scotland. Mineral Mag, 42, 35-40.
MILTON, C. (1977): Mineralogy of the Green River Formation. Mineralogical Record 8, 368-379.

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A major in visual arts concentration in Graphic Design requires the following:Visual Arts Foundation courses: Art 203, 204, 205, 206, 301; nine semester hours selected from Art 207, 208 or 218, 210, 215, and/ or 230. Only 208 or 218 may count toward the General Education Requirements.
Art History Courses: Art History 220, 221, three semester hours selected from Art History 350, 360, and 370, and three semester hours selected from Art History 340, 380, 390, and 400.
Four courses in the Graphic Design Specialty: Art 231, 330, 331, and 430 or studio courses approved by the faculty adviser and department.
a) two 12-hour collaterals approved by the faculty adviser.
b) an 18-hour minor approved by the faculty adviser.
Completion of one semester hour of Senior Seminar, Art 499.
The minimum number of semester hours in all courses (major and non- major) required for the major in Visual Arts is 127.
A portfolio review is required for Visual Arts – Visual Communication Design Specialty majors seeking to enroll in Visual Communication Design courses at the 300 level. The portfolio review is also required for transfer students, students changing majors or students changing specialties who elect to continue in the Graphic Design Specialty within the Visual Arts program.
In order to register for any 300 level course in the Visual Communication Design Specialty the student must pass the review requirements. Students who do not pass the review are eligible to reapply the following semester.
Have a grade point average of at least 2.25 in all undergraduate courses taken at FMU.
Have at least a 2.5 grade point average in all Art and Art History courses attempted.
Have completed one foundation art history course from Art History 220 or 221.
Have completed both Art 230 and Art 231.
The number of semester hours required in major courses for a major in Visual Arts/Graphic Design is 36 of Visual Arts studio, one of Senior Seminar, and 12 of Art History. The student is required to exhibit work and write an artist’s statement as part of a senior exhibit. Senior exhibitions are presented as small group shows during the final year of enrollment. Each student’s portion of the group exhibit is comprised of works from the student’s specialty area and is prepared under the direction of the student’s specialty area professor, and serves as partial fulfillment of the senior seminar course.

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The entire thrust of the VA's nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process. The Secretary shall provide notice of a decision regarding a claim for benefits and "an explanation of the procedure for obtaining review of that decision." 38 U.S.C. § 5104(a); see Rosler v. Derwinski, 1 Vet. App. 241, 249 (1991). "Each appellant will be accorded hearing and representation rights pursuant to the provisions of [38 U.S.C. Chapter 71] and regulations of the Secretary." 38 U.S.C. § 7105(a). The VA regional office (RO) must provide notice of the right to appeal in regular and in simultaneously contested claims. 38 C.F.R. §§ 19.25, 19.100.
In simultaneously contested claims, the VARO must provide notice of appeal to other contesting parties. 38 C.F.R. § 19.102. It must provide notification of the filing of an administrative appeal. 38 C.F.R. § 19.52. It must furnish a Statement of the Case (SOC) to a claimant, 38 C.F.R. § 19.30, which "must be complete enough to allow ... appellant to present written and/or oral arguments before the [BVA]." 38 C.F.R. § 19.29. In simultaneously contested claims, each interested party must be furnished with an SOC. 38 U.S.C. § 7105A; 38 C.F.R. § 19.101.
A Supplemental SOC (a "SSOC") is required when an appellant submits additional evidence to the VARO prior to the transfer of appellant's records to the BVA, 38 C.F.R. § 19.37(a), and when a BVA remand of a case to the VARO results in additional evidentiary or procedural development and continuation of the denial of benefits, 38 C.F.R. § 19.38; see generally 38 C.F.R. § 19.31 ("a period of 60 days ... will be allowed for response"); 38 C.F.R. § 20.302(c) (but only 30 days, in the case of a simultaneously contested claim, 38 C.F.R. § 20.501(c)).
If the BVA questions the adequacy of appellant's substantive appeal, appellant is provided "notice ... and a period of 60 days ... to present written argument or to request a hearing to present oral argument." 38 C.F.R. § 20.203. The Board shall decide an appeal "only after affording the claimant an opportunity for a hearing." 38 U.S.C. § 7104(a). In connection with the right to a hearing, a claimant has the right to present evidence, testimony, and argument in support of a claim. 38 C.F.R. § 20.700.
A claimant has the right to notification of the time and place of the hearing on appeal. 38 C.F.R. § 20.702(b). A claimant has the right to notification of the certification of appeal and transfer of the appellate record to the BVA. 38 C.F.R. § 19.36. If a "Travel Board" hearing is held, a claimant must be notified of its time and place. 38 C.F.R. § 19.76. When a "Travel Board" hearing is requested, a claimant must be furnished with an SOC if not previously furnished. 38 C.F.R. § 19.77.
"After reaching a decision in a case, the Board shall promptly mail a copy of its written decision to the claimant." 38 U.S.C. § 7104(e). A claimant is entitled to a hearing if a motion for reconsideration of a final BVA decision is granted. 38 C.F.R. § 20.1003. The BVA may vacate an appellate decision which denies "due process of law" upon the request of appellant, or on the BVA's own motion. 38 C.F.R. § 20.904. Thurber v. Brown, 5 Vet. App. 119, 123-24 (1993).
As written, the due process provisions of 38 C.F.R. section 3.103 apply only to benefits and relief under part 3 of title 38 of the Code of Federal Regulations. Part 3 is entitled "ADJUDICATION," and is divided into two subparts: subpart A, which deals with compensation, pension, and DIC, and subpart B, which deals with burial benefits. As written, section 3.103(b)(2) requires pre-termination/reduction notice only where there is a termination or reduction of an "award of compensation, pension or [DIC]." Grovhoug v. Brown, 7 Vet. App. 209, 214 (1994).