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John Bennett is a Fellow in the American College of Trial Lawyers. He has tried cases for more than 35 years in Oregon and Washington, both states in which he is licensed to practice. He has also handled cases in Colorado, Idaho, Montana, California and Tennessee by means of pro hac vice admission. John's career started in the Multnomah County District Attorney's office, the largest prosecuting office in the state of Oregon, where he tried every type of criminal case, including murders, and was the Chief Deputy District Attorney when he moved to private practice.
John's current practice predominantly involves first party insurance coverage and defense of claims for extra-contractual damages, so-called "bad faith." John has tried to verdict multiple lawsuits involving insurance coverage and/or bad faith issues. Most cases settle; John is adept and experienced in all forms of alternative dispute resolution (ADR).
4) Extra-Contractual Defense: Defending insurers against allegations of Consumer Protection Act (CPA) violations, Washington Insurance Fair Conduct Act violations, common law "bad faith" claims handling, torts of intentional interference with business relations, and outrageous conduct.
5) Insurance Regulatory: Representation of insurers regarding policy forms in non-standard lines and allegations of noncompliance with regulatory statutes.
7) Celebrity Law: Represented the United States Figure Skating Assoc. in its administrative proceeding against Tonya Harding.
8) Class Actions: Represented certain of the Safeco Insurance Companies in alleged class action regarding interpretation of "adverse action" in Fair Credit Reporting Act; currently representing auto carrier in two separate putative class actions in State of Washington.
Though John has made a living trying cases, he recognizes that most lawsuits are resolved without trial. A trial can be expensive, disruptive to an organization, and subject to the vagaries of the jury system. Sometimes, however, a trial is the only way to resolve a case, and counsel needs to be able and willing to see the matter through to verdict. John has used every means of ADR to resolve cases short of trial, including old-fashioned direct negotiation with opposing counsel, mediation, arbitration, and mini-trials. John's goal is to find the most effective and efficient way to solve the client's legal problem.
The Use of Fringe Science in Washington State Collapses for Policyholder Allegations of "Collapse"
Safeco Ins. Co. of Oregon v. Masood, 264 Or. App. 173, 330 P.3d 61 (2014) (enforcing insurer's right to cooperation from insured and rejection of attempt to impose conditions on cooperation).
Safeco Ins. Co. of America v. Burr, Geico General Ins. Co. v. Edo, 551 US ______, 127 S Ct. 2201 167 LEd 2nd 1045 (2007), (reversing 9th Cir., 435 F.3d 1081 (2006) (finding that client's interpretation of the Fair Credit Reporting Act, though incorrect, was objectively reasonable, and thus not willful).
Wal-Mart Stores, Inc. v. Gulf Ins. Co., 250 Fed. Appx. 221, 207007 WL 2915603, CA9 (OR) October 4, 2007 (faulty workmanship exclusion enforced in first party damage action).
Harrington v. American Economy Ins. Co., 131 Fed. Appx. 573, 2005 WL (1140488) C.A. 9 (OR) (claim under crime coverage provision of insurance contract for loss from employee theft; court upheld assertion of contractual period of limitation for all claims beyond those acknowledged by carrier).
Strader v. Grange Mutual Ins. Co., 179 Or. App. 329, 39 P.3d 903 (2002) (establishing that there is no "special relationship" between insured and the first party insurer to support a tort claim, thus limiting claims for relief to breach of contract).
Lewis-Williamson v. Grange Mutual Ins. Co., 179 Or. App. 491, 39 P.2d 947 (2002) (establishing that a captive agent is the agent only of the insurer, not the insured, foreclosing a claim for failure to procure insurance).
Spada v. Unigard Ins. Co., 232 F. Supp. 2d 1155 (D. Or. 2002) (addressing "property damage" necessary to trigger a duty to defend and holding that the defense obligation does not extend to prosecuting counterclaims and cross-claims).

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Rehearing Denied Jan. 11, 1982.
See 454 U.S. 1165 .
Chief Justice BURGER, with whom Justice POWELL and Justice REHNQUIST join, dissenting.
The Court today affirms a decision of the Court of Appeals, CA9, 631 F.2d 135, holding unconstitutional a Washington statute which has yet [454 U.S. 1022 , 1023] either to be enforced in or construed by a Washington state court. I would abstain from decision until the Washington courts are given an opportunity to interpret the law which has been thus invalidated. This Court-and all federal courts-have enough to do without "preempting" state courts on matters initially of state concern.
The Washington "moral nuisance" law, Wash.Rev.Code 7.48.050 et seq. ( Supp. 1977)-a comprehensive statute directed at prohibiting the public sale and exhibition of obscene materials-was adopted as an initiative by the voters in the November 8, 1977, election. Before the statute was even certified by the Secretary of State, appellees, several corporations engaged in the exhibition, distribution, and sale of movies, books, and magazines, filed this action in the Federal District Court, 449 F.Supp. 1145. On February 6, 1978, less than three months after the initiative's adoption, and apparently before it had ever been applied, the District Court declared the law unconstitutional. 449 F.Supp. 1145.
I have previously outlined the concerns that should lead a federal court to stay its hand in cases such as this, when litigants have deliberately avoided resort to the courts of the state whose statute is being challenged. Vance v. Universal Amusement Co., 445 U.S. 308 , 317-320, 1161-1163 (1980) (BURGER, C. J., dissenting); cf. Moore v. East Cleveland, 431 U.S. 494 , 521-531, 1946-1951 (1977) (BURGER, C. J., dissenting); Wisconsin v. Constantineau, 400 U.S. 433 , 439-443, 511-513 (1971) (BURGER, C. J., dissenting). The policies of federalism and comity militate in favor of affording state judges-who are as capable as are federal judges of enforcing the Constitution of the United States, and have taken the same oath to do so-the initial opportunity to consider the scope and validity of state statutes. This is particularly so when the state law under consideration has never been applied, and when its interpretation is uncertain; in such a case the state court's construction of the statute may obviate the need for adjudication of the federal constitutional issues, or the state court may resolve those issues as we would. Harrison v. NAACP, 360 U.S. [454 U.S. 1022 , 1024] 167 (1959); City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639 (1959); Railroad Comm'n v. Pullman Co., 312 U.S. 496 ( 1941).
Here, the Court of Appeals invalidated portions of the nuisance law dealing with the issuance of temporary and permanent injunctions against establishments exhibiting "lewd" or "obscene" matter, on the grounds that, inter alia, (1) "[n]o limits are set forth in the statute to confine the discretion of the court to issue the temporary abatement injunction," 631 F.2d 135, 138 (CA 9 1980); (2) "there is no assurance that there will occur the required prompt final judicial determination on the merits," ibid.; and (3) "a defense of nonobscenity presumably is unavailable at a trial for violation of an injunction" (emphasis added), ibid. Even a cursory examination of the lengthy statute-which contains detailed definitions of "lewd" or "obscene" matter incorporating the standards of Miller v. California, 413 U.S. 15 (1973), which provides for consolidation of the trial on the merits with the hearing on the temporary injunction and grants scheduling priority to cases brought under the statute, and which does not specify the defenses available in contempt proceedings-discloses that the state courts might well have construed the law so as to avoid each of these perceived deficiencies. It is ironic that, having exhibited no hesitation to construe the many provisions of this complex statute without guidance from the state courts, the Court of Appeals wholly ignored an explicit severability clause and "declined" to preserve those parts of the statute not found unconstitutional, demurring that the reconstruction required to salvage the statute would be better handled by "the legislature of the State of Washington." 631 F.2d, at 139.
In sum, both the District Court and the Court of Appeals should have declined to act until the parties had exhausted available state remedies, at least absent a showing that resort to the state courts would have been futile. There was no need whatever for federal courts to render a declaratory [454 U.S. 1022 , 1025] judgment as to the validity of a state law on which the state courts have not yet had an opportunity to speak and on behalf of parties against whom the law has not yet been applied. I would reverse and remand with directions to do now what should have been done initially.

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Jan 31, 2018 ... The district court found that none of the Alabama stores was ... of "groceries" and "sales area" in Winn-Dixie Stores, Inc. v. ... Dolgencorp, LLC.
Aug 11, 2017 ... COURT OF CIVIL APPEALS (In re: Sarah E. Jungwirth v. Wen-Hsien H. .... THE COURT OF CRIMINAL APPEALS (In re: Devaris Cornez Browning v. State ... 1150981 Dolgencorp, LLC v. Howard ... Inc., and Rassan Tarabein (Appeal from Baldwin Circuit Court: CV-16-900535). Affirmed. ... Victor Revill et al.
Jan 1, 2017 ... For instance, in EEOC v Dolgencorp, LLC,26 a cashier ...... Lawler Foods, Inc., et al., 2014 WL 11099226 (S.D. Tex.). ...... In Browning-Ferris, the NLRB changed the test so that “two or more entities are joint employers of a.
EEOC-Initiated Litigation FY 2017 - a motion to dismiss.
Dec 11, 2017 ... In one of the seminal cases, Dolgencorp,. Inc. v. Taylor,40 the Court ... Browning v. ...... 25 See, e.g., Roach-Strayhan-Holland Post, et al. v.

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238 F.3d 1145; 2001 U.S. App. LEXIS 1729; 29 Media L. Rep. 1641; 2001 Cal.
States District Court for the District of Oregon. D.C. No.
Department"). We have jurisdiction pursuant to 8 U.S.C.
§ 1291 and reverse and remand.
organization mail. The following facts are undisputed.
Salem, Oregon, for the defendants-appellees.
security concerns; and bulk mail increases fire hazards.
non-profit organizations and given to charities.
returned to the Postal Service.
average, 7000 to 8000 pounds of incoming mail a month.
writes the inmate's housing assignment on the envelope.
of any rejection based on written or pictorial content.
gives to first class and periodicals mail, detailed above.
mailed as "Bulk Mail" and were insufficiently addressed.
mailed under special rates fixed by the Postal Service.
circulates newsletters addressing prison-related issues.
mail, priority mail, first class mail or periodicals mail.
posted using first class or periodicals mail rates.
in compliance with Oregon prison regulations.
newsletter since January of 1999.
judgment. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.
impermissibly infringes on their First Amendment rights.
Union, Inc., 433 U.S. 119, 129, 53 L. Ed. 2d 629, 97 S.
Ct. 2532 (1977) (quoting Pell v. Procunier, 417 U.S.
817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974)).
64, 107 S. Ct. 2254 (1987).
Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct.
to send materials to prisoners. See Thornburgh, 490 U.S.
incoming inmate mail regardless of the sender's identity).
addressed and mailed at the standard rate.
When the inmate presents sufficient . . .
and a prison regulation, Walker [v.
188 F.3d at 1060 (quoting Turner, 482 U.S. at 89-90).
Department's interest in rendering efficient cell searches.
are processed at some Department institutions daily.
processing subscription non-profit mail would impose.
would help control volume. See Or. Admin. R. 291-1310025(1); Or. Admin. R. 291-131-0035.
F. Supp. 1356, 1362 (E.D. Wash. 1997).
objective, we do not consider the other Turner factors.
Rather, we are required to reverse. n7 See id.
presented to us in the briefs.
Officials are entitled to qualified immunity. We disagree.
regarding qualified immunity [**20] in a § 1983 action.
have believed the conduct was lawful. Robinson v.
Solano County, 218 F.3d 1030, 1034 (9th Cir. 2000).
(1987), the law in this case was not "clearly established."
subscription bulk rate mail. See id. at 167. In Miniken v.
organization mail such as Publisher's newsletter. 978 F.


text:
თ. ჭიპაშვილი, M. Kukhaleishvili, I. Megrelishvili, E. Bulauri. Hormonal Treatment Effect in Combination with Sucrose on in vitro Potato Varieties. 12thEuro Bitechnology Congress. 2016წ. Journal of Biotechnology&Biomaterials 2016, 6;7(Suppl).
E. Bulauri, M. Kukhaleishvili, I. Megrelishvili, T. Chipashvili. Hormonal Treatment Effect in Combination with Sucrose on in vitro Potato Varieties. 12thEuro Bitechnology Congress, 7-9 November, Alicante, Spain, . 2016წ. Journal of Biotechnology&Biomaterials 2016, 6;7(Suppl).
R. Kinkladze. http://www.sciencedirect.com/science/journal/18770428/156. 19th International Scientific Conference «Economics and Management – 2014» (ICEM-2014)Riga, Latvia. . 2014წ. http://www.sciencedirect.com/science/journal/18770428/156.
V. Jeladze, V. Tabatadze, I. Petoev, M. Prishvin, M. Tsverava, R. Zaridze. Human EM Exposure Simulations for some big scenarios using MAS. Global Symposium on EMC, Safety and Product Compliance Engineering (GlobeSPACE’2014). 2014წ. Tel-Aviv, Israel, December 2-3, pp.32.
V. Tabatadze, I. Petoev, M. Prishvin, M. Tsverava, R. Zaridze. Human EM Exposure Simulations for some big scenarios using MAS. 2014 Global Symposium on EMC, Safety and Product Compliance Engineering (GlobeSPACE’2014). 2014წ. Tel-Aviv, Israel, December 2-3, pp.32 .
V. Jeladze, V. Tabatadze, M. Prishvin, I. Petoev, L. Bibilashvili, M. Tsverava, R. Zaridze. Human EM Exposure Study for Some Big Scenarios. IEEE 34th International Conference on Electronics and Nanotechnology (Elnano-2014). 2014წ. April 15-18, Kyiv, Ukraine, pp.342-344.
V. Jeladze, V. Tabatadze, M. Prishvin, L. Bibilashvili, R. Zaridze. Human Exposure Simulation in Big Scenarios using MAS. Proceedings of XVIII-th International Seminar/Workshop on Direct and Inverse Problems of Electromagnetic and Acoustic Wave Theory (DIPED-2013). 2013წ. September 23-26, Lviv, Ukraine. pp. 187-192.
V. Jeladze, R. Zaridze, V. Jeladze, V. Tabatadze, I. Petoev, M. Prishvin, T. Nozadze. Human Exposure Study for Large Scale Scenarios . 2016 International Symposium on Electromagnetic Compatibility - EMC EUROPE 2016. 2016წ. Wroclaw, Poland, September 5-9, pp. 474-479.
V. Jeladze, T. Nozadze, R. Zaridze, V. Jeladze, V. Tabatadze, I. Petoev, M. Prishvin. Human Exposure Study for Some Scenarios . 11-th International Conference on Communications, Electromagnetics and Medical Applications (CEMA’16). 2016წ. Athens, Greece, 13-15 October, pp. 21-23.
O. Zumburidze. Human resources and new knowledge to build the future energy system. 1st UNI-SET Energy Clustering Event Hosted by Norwegian University of Science and Technology (NTNU). Trondheim, Norway. 2016წ. .
ო. შამანაძე, . Kirtava, Z.; Jorjoliani, D.; Kashmadze, K.; Beridze, J.; O.; Ghazisaidi,. Hybrid networking solutions for e-Health systems in Georgia. . IEEE 21st Telecommunications Forum (TELFOR), . 0წ. 2013. Belgrade, 26-28 Nov. 2013, pages: 137–140. .
გ. გავარდაშვილი. Hydraulic Calculation of a New Spring-Board Type Trapezoidal Structure Against Debris Flow. Yerevan State University Architecture and Construction. . წ. 2-nd International Scientific and Technical Conference ,,Architecture and Construction – Contemporary Problems”. Conference proceedings.Volume-2, pp. 256 – 262..
ვ. თევზაძე, Natishvili O.. Hydraulic Design of Debris Flow. Conduct . Proceedings of the Tenth International Symposium of River Sedimentation August 1-4, Moscow, Russia. . წ. p.p. 263-267 .
ვ. თევზაძე, Natishvili O.. Hydraulic equations for cohesive Debris Flow and their particular solutions *) . Proceedings of the International Conference Debris Flows: Disasters, . წ. Pyatigorsk,Rusia, 22-29 September p.p. 245-248 .
ვ. თევზაძე, Natishvili O.. Hydraulic equations for cohesive Debris Flow and their particular solutions *) . Proceedings of the International Conference Debris Flows: Disasters, . 2008წ. p.p. 245-248 .
Sh. Gagoshidze, M. , Saghinadze Ivane, Pkhakadze Manana. Hydro-engineering and environmental problems in Poti Black Sea region and ways of their solution. Geophysical Research Abstracts, EGU General Assembly 2016, Vena, Austria, 17-22 April . 2016წ. .
დ. კერესელიძე, K.Bilashvili, V>Trapaidze. Hydrological regime of load Discgarge of the Rivers of Kolkheti Lowland. sgem 2011. 2011წ. Volume II, pp 853-858 .
დ. კერესელიძე, K.Bilashvili, V.Trapaidze. Hydrological zoning of the Territory of Georgia and Estimation of water Resources on the Background of the climatic change. 12-th International Multidisciplinary Sceintific Geoconference SGEM 2012. 2012წ. , Conference proceedings, vol. III, 17 – 23 june, Albena, Bulgaria, pp. 729 - 732.
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1. A judgment of a state supreme court so construing a state statute as to cause it to infringe federal rights is reviewable in this Court even though the federal question was first presented to the state court by a petition for rehearing which was denied without referring to the federal question, if the construction was one that the party affected could not have anticipated and the federal question was presented by him at the first opportunity. P. 281 U. S. 320.
2. Property taxable by a state may not be taxed more heavily because the owner owns also tax-exempt bonds of the United States. P. 281 U. S. 320.
thus inflicting upon the company a heavier tax burden than it would have borne had it not owned the bonds. P. 281 U. S. 321.
Appeal from a judgment of the Supreme Court of Missouri sustaining on certiorari a property tax assessed against the relator insurance company by the city board of equalization.
Appellant is an insurance company organized under the laws of Missouri. It maintains that, as construed in this case, § 6386, Revised Statutes of Missouri 1919, is repugnant to the Constitution and laws of the United States.
"The property of all insurance companies organized under the laws of this state shall be subject to taxation for state, county, municipal and school purposes as provided in the general revenue laws of this state in regard to taxation and assessment of insurance companies.
Every such company or association shall make returns, subject to the provisions of said laws: first, of all the real estate held or controlled by it; second, of the net value of all its other assets or values in excess of the legally required reserve necessary to reinsure its outstanding risks and of any unpaid policy claims, which net values shall be assessed and taxed as the property of individuals. . . ."
The board of equalization declined to accept the return, and, after hearing, the parties held that the bonds of the United States are not taxable, that § 6386 contravenes provisions of the state constitution requiring uniform taxation, and that therefore the company was not entitled to deduct the amount of such reserve and claims.
The board assessed the company's taxable property at $50,000 without disclosing how it arrived at the amount.
On the company's application, the state supreme court issued its writ of certiorari to bring up for review the record and action of the board. The court held the section valid, found the company's liabilities were chargeable against all its assets -- taxable and nontaxable alike -- declared that such reserve and claims should be apportioned between the two classes of assets according to their respective amounts, and determined that approximately 79.03 percent of such liabilities should be deducted from the value of the taxable personal property, leaving $90,710.80 as the net value to be taxed. [Footnote 2] And, as that exceeded the amount fixed by the board, the court refused to disturb the assessment, and entered judgment quashing the writ.
net value. [Footnote 3] The court did not refer to the federal questions raised by the motion for rehearing.
1. It is well settled that this Court will not consider questions that were not properly presented for decision in the highest court of the state. Ordinarily, it will not consider contentions first made in a petition to the state court for rehearing where the petition is denied without more. Citizens' National Bank v. Durr, 257 U. S. 99, 257 U. S. 106. But here, the company, at the first opportunity, invoked the protection of the federal Constitution and statute. It could not earlier have assailed the section as violative of the Constitution and laws of the United States. The board of equalization completely eliminated the bonds from its calculations, and there is nothing in the language of the section to suggest that it authorizes any diminution of the amount of the deductible reserve and unpaid claims or an apportionment of such liabilities between taxable and nontaxable assets. It may not reasonably be held that the company was bound to anticipate such a construction or in advance to invoke federal protection against the taxation of its United States bonds. Upon the facts disclosed by this record, it is clear that appellant sufficiently raised in the highest court of the state the federal questions here presented, and is entitled to have them considered. Saunders v. Shaw, 244 U. S. 317, 244 U. S. 320; Ohio ex rel. Bryant v. Akron Park District, 281 U. S. 74.
2. It is elementary that the bonds or other securities of the United States may not be taxed by state authority.
That immunity always has been deemed an attribute of national supremacy and essential to its maintenance. The power of Congress to borrow money on the credit of the United States would be burdened and might be destroyed by state taxation of the means employed for that purpose. As the tax-exempt feature tends to increase and is reflected in the market prices of such securities, a state tax burden thereon would adversely affect the terms upon which money may be borrowed to execute the purposes of the general government. It necessarily follows from the immunity created by federal authority that a state may not subject one to a greater burden upon his taxable property merely because he owns tax-exempt government securities. Neither ingenuity in calculation nor form of words in state enactments can deprive the owner of the tax-exemption established for the benefit of the National Life Ins. Co. v. United States, 277 U. S. 508, 277 U. S. 519, and cases cited; McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 431-432, 17 U. S. 436.
After deducting government bonds (exempt), real estate (otherwise taxed), legal reserve and unpaid policy claims from total assets, there remained the amount returned by appellant.$20,778.64. The court held the section to require the reserve and unpaid claims to be reduced by the proportion that the value of the United States bonds bears to total assets. It found $74,136.52 to be appellant's taxable net value. And so it used the value of the bonds, $94,000, to increase the taxable amount by $53,357.88.
who own no such bonds, this amounts to an infringement of the guaranteed freedom from taxation. It is clear that the value of appellant's government bonds was not disregarded in making up the estimate of taxable net values. That is in violation of the established rule. National Life Ins. Co. v. United States, supra; Northwestern Ins. Co. v. Wisconsin, 275 U. S. 136; Miller v. Milwaukee, 272 U. S. 713.
THE CHIEF JUSTICE concurs on the ground that this case is governed by National Life Ins. Co. v. United States, 277 U. S. 508.
The court divided total taxable assets $354,265.33 ($349,000 bonds and $5,265.33 cash) by total personal assets $448,265.33 ($349,000 bonds, $5,265.33 cash and $94,000 United States bonds). The result was .7903. Total liabilities $333,480.69 ($326,522.69 reserve and $6,964.00, unpaid policy claims) was multiplied by .7903. The result was $263,554.53. This was subtracted from $354,265.33, and the difference was $90,710.80.
The court divided total taxable assets $496,265.33 ($349,000 bonds, $5,265.33 cash, and $142,000 real estate) by total assets $590,265.33 ($349,000 bonds, $5,265.33 cash, $94,000 United States bonds and $142,000 real estate). The result was .84. Total liabilities $333,486.69 was multiplied by .84. The result was $280,128.81. This was subtracted from $354,265.33, taxable personal assets, and the difference was $74,136.52.
Opinion of MR. JUSTICE STONE, dissenting.
To state the problem now presented in its simplest concrete form, if an insurance company has policy liabilities of $100,000, $100,000 of taxable personal property, and $100,000 of government bonds, its net assets would be $100,000. Under the statute of Missouri taxing net assets, as applied by the state court, one-half of this net worth or $50,000 would be subject to the tax, since one-half of its entire property consists of taxable assets, and so contributes one-half of the net. Under the decision of this Court, the company would go tax-free, on the theory that the Constitution requires that, in ascertaining the taxable net worth, tax-exempt bonds must be excluded from the computation as though they were not liable for the debts of the taxpayer.
That conclusion appears to me to open a new and hitherto unsuspected field of operation for the immunity from taxation enjoyed by national and state securities as instrumentalities of government, and to accord to their owners a privilege which is not justified by anything that has been decided or said by this Court.
Since Weston v. Charleston, 2 Pet. 449, this Court, by a long line of decisions, has so restricted the immunity as to relieve only from the burden of taxation imposed on such securities or their income. The immunity has not been supposed to confer other special benefits on their owners. In every case, it has been consistently applied so as to leave reasonable scope for the exercise by both national and state governments of the constitutional power to tax. Railroad Co. v. Peniston, 18 Wall. 5; Plummer v. Coler, 178 U. S. 115; South Carolina v. United States, 199 U. S. 437, 199 U. S. 461; Flint v. Stone Tracy Co., 220 U. S. 107, 220 U. S. 162-165; Greiner v. Lewellyn, 258 U. S. 384; Blodgett v. Silberman, 277 U. S. 1, 277 U. S. 12; see Metcalf & Eddy v. Mitchell, 269 U. S. 514, 269 U. S. 523-524.
The present tax differs from those which have previously been considered by the Court in this connection in that it is not imposed on any specific identifiable property or its income. It is a tax on net worth, the value of the taxpayer's property after providing for the policy liabilities. Net worth is the result of a mathematical computation, into which, of necessity, enter all his assets subject to liabilities and all such obligations of the taxpayer as the statute permits to be deducted. It is the result of the computation which is the subject of the tax, and it is the subject of the tax to which exemptions are to be applied.
or, what comes to the same thing, by deducting from taxable assets their proportionate share of the burden of policy liabilities.
To say that debts must be deducted from taxable assets alone, that no part of the net worth of the taxpayer who owns tax free securities may be taxed if his debts equal his tax free assets, is equivalent to saying, in such a situation, either that the taxable assets constitute no part of the net worth or that, even though they are a part, still that part is not taxable. But it is not to be supposed that a mathematician, an accountant, or a businessman would regard the taxable assets as contributing nothing to surplus, or, where one-half of the taxpayer's property is tax free, that there is any basis for saying that net worth could, on any theory, be attributed more to one class of assets than the other. Yet the result now reached would seem to presuppose that the tax-exempt securities alone had contributed to the taxpayer's net worth. These incongruous consequences of the rule applied seem to be attributable to the only assumption on which the rule itself could proceed -- that government bonds, because they are tax-exempt, are also debt exempt, or may not be used for the payment of debts, when, in fact and in law, tax-exempt securities constitute a part of the corporate reservoir of capital, all of which, without distinction, may be drawn on for the payment of obligations.
the deduction, or burdened by the tax. Or if, one-half of the gross assets of a taxpayer being chattels without the state, it had taxed his property within the state allowing as a deduction one-half his indebtedness, I do not suppose it would have occurred to anyone to say that the levy was invalid as a tax upon the property beyond the taxing jurisdiction. Yet neither of these taxes differs from the present in its effect on the ownership of either taxable or tax-free property.
The apportionment of net worth according to the amounts of the constituent elements which enter into its computation has long been a familiar method of accountants, and has repeatedly been incorporated in taxing statutes where, for one reason or other, it is desirable or necessary not to impose a tax on some of these elements. The fairness and accuracy of that method has not hitherto been questioned.
"such proportion of the fair cash value of all the shares constituting the capital stock . . . as the value of the assets . . . employed . . . within the Commonwealth . . . bears to the . . . total assets of the corporation."
increase taxable values. Neither proposition can, I think, be supported. First, it is not universally true that ownership of tax-exempt securities may not increase the burden of a tax. Taxes upon transfer at death, state or federal, may be increased by the ownership by deceased of tax-exempt securities. Plummer v. Coler, supra; Knowlton v. Moore, 178 U. S. 41; Greiner v. Lewellyn, supra; Blodgett v. Silberman, supra. Notwithstanding Macallen v. Massachusetts, 279 U. S. 620, I do not understand that tax-exempt securities of a corporation, or the income from them, may under no circumstances enter into the computation of a corporate franchise tax and increase it proportionately, or that a broker or dealer in securities may not be taxed on his profits from the purchase and sale of government and state securities. Compare Peck & Co. v. Lowe, 247 U. S. 165; Barclay & Co. v. Edwards, 267 U. S. 442. In National Leather Co. v. Massachusetts, supra, an increase of property outside the taxing state might increase the tax on net assets within the state. For like reasons, it would seem that the tax-free securities might rightly enter into the computation of net worth, since they are liable for debts, and so contribute to net worth, and that the net worth thus computed should be held subject to the state tax except insofar as tax-exempt securities contribute to it.
the tax. But such is not the effect of the statute, for, if the taxpayer who owns no exempt property may be taxed on his full net worth, but is taxed only half as much if he converts one-half of his gross assets into tax-exempt bonds, it would seem that ownership of the latter had resulted in a decrease, and not an increase, of taxable values, and that the burden of the tax is diminished with mathematical exactness in the proportion that the taxpayer has chosen to invest in tax-exempt securities.
Invoking the rule now laid down, a taxpayer having no tax-exempt securities and legitimately bearing the burden of a state tax on net worth may put off the burden completely by the simple expedient of purchasing, on credit, government bonds equal in value to his net taxable assets. The success of a device so transparently destructive of the taxing power of the state may well raise doubts of the correctness of the constitutional principle supposed to sustain it. So construed, the Constitution does more than protect the ownership of government bonds from the burdens of taxation. It confers upon that ownership an affirmative benefit at the expense of the taxing power of the state by relieving the owner from the full burden of taxation on net worth to which his taxable assets have in some measure contributed.
support the national government in saying to the state that, in ascertaining taxable net worth, debts must be deducted from taxable assets alone any more than it would support the state in insisting that debts should be deducted exclusively from the taxpayer's government bonds in ascertaining taxable net worth.
Nothing said by this Court in National Life Insurance Co. v. United States, 277 U. S. 508, decided one week later than the National Leather Company case, supra, should lead to a reversal of the judgment below. In that case, an act of Congress taxing the income of insurance companies granted an exemption of 4% of their reserve. By the terms of the statute, the benefit of the exemption was withheld to the extent that the taxpayer received income from tax-exempt securities. The statute regulated only the exercise of the power of the national government to tax. Neither it nor the decision of the court affected the taxing power of a state. The statute was assailed solely on the ground that it discriminated against the holder of tax-exempt securities merely because they were tax-exempt, to the extent that the statutory exemption was withheld from the holder of government, state, and municipal bonds. The effect of this discrimination was that, if the taxpayer shifted investments from its taxable to its tax-exempt list, its tax remained undiminished until the income from the tax free list equalled the statutory exemption.
subjected to greater burdens upon his taxable property solely because he owns some that is free."
But the present statute has no such effect. Calling the deduction of policy liabilities, required for the computation of the tax, an "exemption," and saying that ownership of tax-exempt securities is made the basis of denying the "full exemption," may give this case a verbal resemblance to that, but it does no more. True, a change by appellant from taxable to tax free investments would result in a smaller deduction from its taxable assets, but it would also result in a proportionate reduction of its taxable assets with a corresponding decrease in taxable values, always, in exact proportion to appellant's investment in tax-exempt securities.
Only if the taxpayer were the fortunate recipient of a gift of tax-exempt securities could the net worth of its taxable securities be increased, and this not solely or at all because its newly acquired securities are "free," but because they, like its taxable assets, may be used to meet policy obligations, and thus proportionately relieve taxable assets from that burden. Similarly, a gift by way of payment of policy obligations or reinsurance would increase the tax, although it would not increase taxable assets. So the increase, by gift of property outside the state, would increase the tax upon net assets within the state. The property outside the state is not subject to a tax, but it must pay its share of the debts. But, in every case, as in the present, the tax assessed would correspond with mathematical exactness to the contributions made by the taxable assets to the total not worth. Hence, the question here is not whether the taxpayer has been discriminated against because he owns government bonds, but only whether the privilege which the state recognizes as attaching to their ownership is sufficiently great.
annexation of such benefits to the ownership of government bonds as will increase their currency and stimulate the market for them, even though those privileges are extended at the expense of the constitutional powers of the states, it is difficult to see what the limits of such a doctrine may be. I suppose that the sale and market value of government bonds would be materially increased if we were to say that the Constitution sub silentio had forbidden their seizure for debts, or rendered their possessor immune from the various forms of state taxation to which this Court has said he is subject. But however desirable such a consequence might be thought to be, that could hardly be taken as a sufficient ground for saying it.
* The difference between the two methods may be illustrated by supposing a corporation with gross assets of $15,000,000 and obligations of $5,000,000. The fair cash value of all the shares would then be $10,000,000. Assume that one-tenth of its property is in Massachusetts. The assessment would be $1,000,000 under the Leather Company case. By the present method, $5,000,000 would be deducted from one-tenth of the gross assets, $1,500,000, because a concern owning no exempt property might make that deduction. Under the present case, the company would be free from tax.
"The difference, however, is only such as arises naturally from the extent of the jurisdiction of the state in the two classes of cases, and cannot be regarded as an unfriendly or unreasonable discrimination. As to residents, it may, and does, exert its taxing power over their income from all sources, whether within or without the state, and it accords to them a corresponding privilege of deducting their losses, wherever these accrue. As to nonresidents, the jurisdiction extends only to their property owned within the state and their business, trade, or profession carried on therein, and the tax is only on such income as is derived from those sources. Hence, there is no obligation to accord to them a deduction by reason of losses elsewhere incurred."
There seems to be as colorable reason in that case as in this for asserting that the receipt of exempt income is made the basis for a reduction or elimination of an exemption granted to others.


Last February (2010) we posted a "State E-waste Regulator Compliance Primer checklist format" - for compliance with EPA "commodity exemption" conditions. I expected some comments and feedback, but did not get much, and the checklist has not had as many visitors as other posts. Since many state regulators are in a new position of regulating electronic scrap, electronics reuse, and electronics waste, I thought I should republish it, and ask again for comment.
The EPA specifically described their decision NOT to add Cathode Ray Tubes (CRTs) to the Universal Waste Rule list in 2006. The agency described the testimony from the states which advocated that "e-waste" be treated as a universal hazardous waste, and then described how this would not only have unintended consequences in the commodity market, but would impose impossible conditions on true commodities. Out of one million discarded fluorescent lamps, how many will be repaired? ZERO. The same number of CRTs may result in several hundred thousand reuse and repair jobs, resulting in meaningless data collected in manifests which will never balance unless reuse is sacrificed.
EPA, in its wisdom, recognized that display devices have the fastest growing demand in the world, and that the reuse value was not only good for the recycling economy - it was essential for affordable internet, and the best end use in the economy. Repair, reuse and refurbishment are explicitly legal in the Basel Convention, and highest in the solid waste hierarchy. Ambulances don't drop off patients at the morgue, and most people in wealthy nations are not discarding "end of life" product when they buy a new large flat screen.
Under RCRA 40 CFR, CRTs are simply not classified like (non-reusable) lamps.
(i) Used, intact CRTs as defined in §260.10 of this chapter are not solid wastes within the United States unless they are disposed, or unless they are speculatively accumulated as defined in §261.1(c)(8) by CRT collectors or glass processors.
(ii) Used, intact CRTs as defined in §260.10 of this chapter are not solid wastes when exported for recycling provided that they meet the requirements of §261.40.
(iii) Used, broken CRTs as defined in §260.10 of this chapter are not solid wastes provided that they meet the requirements of §261.39.
(iv) Glass removed from CRTs is not a solid waste provided that it meets the requirements of §261.39(c).
I have a longer commentary on the EPA CRT Rule and how it evolved. For now, it's important to recognize the risks of losing the recycling commodity, non-waste exemption. Local solid waste districts don't want recycled materials to be scavenged, and rely on the Courts ruling that recycling is not "disposal" to enforce those laws. When someone sends their hard drive to Good Point Recycling for scrubbing or disassembly, they have not given up their rights to the data, and we insist on a chain of custody which does not exist with "discards".
(13) "Waste" means a material that is discarded or is being accumulated, stored, or physically, chemically or biologically treated prior to being discarded or has served its original intended use and is normally discarded or is a manufacturing or mining by-product and is normally discarded.
Speculative accumulation rules, and EPA's 3 years of record keeping demonstrating actual reuse, prevent a company from merely accumulating things and not really reusing them, or exporting them for actual disposal. TV repair and warranty repair shops will otherwise need to be certified as waste facilities, which is part of the "war on reuse" or planned obsolescence in hindsight, unintended consequence, I've been writing about since 2006. We want to compete against sloppy exporters who apparently ship 80% waste, and if we can guarantee that even the 5% which is electively upgraded is properly recycled, Vermont won't win friends overseas by shutting us down.
For now, I will repost the February 2010 e-waste guidance document in the hope that state and federal regulators see value in it, or make comments on revisions we need to make. Putting a "universal hazardous waste" label on a working or repairable monitor will absolutely guarantee that any shipment of the monitor will be subject to seizure. There are better ways to eliminate Toxics Along for the Ride.
Ask for PROOF of REUSE. A good reuse company warranties its products and gets reports and QA/QC documentation. If the company is keeping these and proving that nothing is being released into the environment, squeezing them to test the last capacitor may turn into a "war on internet" in the emerging world, where people earning $3K per year are getting online at 10 times the rate of growth of the USA.
And remember, if we give up and send all this material to a good old American shredder, here is where the metal winds up to be sorted. My bet is that more of the capacitors will wind up in fluff, or ZORBA, or metal bales than would ever be discarded by a "semiknockdown" factory.
" In our June 12, 2002 notice, the Agency proposed a conditional exclusion from the definition of solid waste for used CRTs and CRT glass being recycled. However, we also solicited comment on the alternative approach of adding these materials to the universal waste rule. In particular, we requested comment on whether various universal waste requirements would be appropriate or burdensome for glass processors, or collectors who send used CRTs or CRT glass to these processors. The universal waste requirements in question were employee training, notification of universal waste management activities, and tracking of shipments sent and received. "
"In our June 12, 2002 notice, the Agency proposed a conditional exclusion from the definition of solid waste for used CRTs and CRT glass being recycled. However, we also solicited comment on the alternative approach of adding these materials to the universal waste rule. In particular, we requested comment on whether various universal waste requirements would be appropriate or burdensome for glass processors, or collectors who send used CRTs or CRT glass to these processors. The universal waste requirements in question were employee training, notification of universal waste management activities, and tracking of shipments sent and received."
"After evaluating all comments, the Agency has decided to retain the proposed conditional exclusion from the definition of solid waste for used CRTs and processed CRT glass, instead of adding these materials to the universal waste rule.
Significant comments, our responses, and the rationale for the final rule are explained below..."
(The official document goes paragraph by paragraph, dismissing each argument for rregulating used televisions and computer monitors as UWR under RCRA).
This fed ruling came after several states issued draft UWR based on the understanding the federal rule was HW and therefore the state could issue UWR conditions to be outside of HW (the normal UWR authority) However, when THIS rule was published, it explicitly stated conditions under which CRT as NOT waste and that therefore UWR.
Therefore, legally, the old basis for issuing UWR restrictions on an item, presuming it was on a EPA HW list, cannot legally be applied until the items are handled in a way which violates the federal exclusions (based on commodity status) on the waste list.
Therefore, legally, the old basis for issuing UWR restrictions on an item, presuming it was on a EPA HW list, do not apply until the items are handled in a way which violates the federal exclusions (based on commodity status) on the waste list.


text:
Автор даёт обзор фестиваля памяти саратовского композитора, педагога-профессора, заслуженного деятеля искусств РФ, лауреата Государственной премии РФ им. М. И. Глинки Елены Владимировны Гохман (1935–2010). Рассматриваются показ по Саратовскому телевидению двух опер – «Цветы запоздалые» (25.11.2015) и «Мошенники поневоле» (31.12.2015), а также состоявшиеся в Саратовской консерватории и Тамбовском музыкально-педагогическом институте концерты.
Vartanova E. I. "Vse nashi stradaniya potonut v milosti..." ["All of our Sufferings shall Drown in Mercy..."]. Kamerton: Periodical Edition of the Saratov State L. V. Sobinov Conservatory. 2011, No. 25 (39) pp. 17–19.
Demchenko A. I. Izbrannye stranitsy tvorchestva Eleny Gokhman [Selected Pages of the Artistic Legacy of Elena Gochman]. Saratov: Aquarius, 2010. 84 p.
Demchenko A. I. Za liniyey gorizonta. O tvorchestve Eleny Gokhman [Beyond the Line ofthe Horizon. On the Artistic Legacy of Elena Gochman] Saratov: Saratov State L. V. Sobinov Conservatory, 2015. 124 p.
Korolevskaya N. V. Zhenskaya ispoved': Marina Tsvetayeva – Elena Gokhman [Conffessions of a Woman: Marina Tsvetayeva – Elena Gochman]. Muzykal'naya akademiya [Music Academy]. 2008, No. 2, pp. 103–108.
Korolevskaya N. V. «Ispanskiye madrigaly» E. V. Gokhman v svete problemy vzaimodeistviya slova i muzyki [ Elena Gochman's “Spanish Madrigals” in Light of the Problem of Interaction between Words and Music]. Problemy khudozhestvennogo tvorchestva [Issues of Artistic Creativity] A Compilation of Articles based on the Materials of Russian Musical Readings devoted to Boleslav Yavorsky. Saratov, 2006, pp. 43–51.
Korolevskaya N. V. Prochteniye poezii M. Tsvetayevoy v vokal'nom tsikle E. Gokhman «Bessonnitsa» [An Interpretation of Marina Tsvetayeva's Poetry in Elena Gochman's Song Cycle “Insomnia”]. Elene Gokhman posvyashchayetsya. K 70-letiyu so dnya rozhdeniya [Dedicated to Elena Gokhman. Towards her 70th Birthday]. Saratov, 2005, pp. 114–130.
Korolevskaya N. V. Soderzhatel'no-smyslovaya dinamika tvorcheskogo protsessa v svete teorii «smyslovogo vzryva» Yu. Lotmana: na primere tvorchestva E. V. Gokhman [The Content and Semantic Dynamics of the Artistic Process in Light of Yuri Lotman's Theory of “the Semantic Explosion” on the Example of the Musical Legacy of Elena Gochman]. Problemy khudozhestvennogo tvorchestva [Issues of Artistic Creativity]. Compilation of Articles on the Materials of Russian Musical Readings devoted to Boleslav Yavorsky. Saratov, 2015, pp. 59–70.
Khristiansen L. L. Kantilena Eleny Gokhman [Christiansen L. L. A Cantilena to Elena Gochman]. Elene Gokhman posvyashchayetsya. K 70-letiyu so dnya rozhdeniya [Dedicated to Elena Gokhman. Towards her 70th Birthday]. Saratov, 2005, pp. 73–79.

matches: V. V. V. V. V. V. V. V.


ARGUED: Oldric Joseph LaBell, Jr., Newport News, VA, for appellant. Alan Mark Salsbury, Asst. U.S. Atty., Norfolk, VA, for appellee.
ON BRIEF: Helen F. Fahey, U.S. Atty., Norfolk, VA, for appellee.
Before WILKINS, HAMILTON, and LUTTIG, Circuit Judges.
Affirmed by published opinion, Judge HAMILTON wrote the opinion, in which Judge WILKINS and Judge LUTTIG joined.
Appellant, Van Scott Keith, was convicted by a jury of three counts of mail fraud, 18 U.S.C. §§ 1341 and 2, and sentenced to a term of imprisonment of 21 months. On appeal, Keith contends that his rights under the Speedy Trial Act, 18 U.S.C. § 3161, were violated and that the district court erred when it enhanced his offense level by two levels for obstruction of justice, United States Sentencing Commission, Guidelines Manual, § 3C1.1. For the reasons that follow, we affirm the judgment of the district court.
On September 24, 1990, Keith reported to his automobile insurance carrier, Nationwide Mutual Insurance Company (Nationwide), that he had been injured on September 9, 1990, when his wife accidentally ran into him in his driveway in a pickup truck he had purchased from his father on September 1, 1990. Although the pickup truck was not listed on Keith's Nationwide policy, a policy provision covered newly purchased vehicles if the insured reported their purchase within thirty days. Keith eventually received $22,525.14 from Nationwide. Of this amount, $5,000 represented payments under the policy's medical payments coverage to which Keith was entitled irrespective of who owned the pickup truck.
There was no dispute that the accident occurred or that Keith was injured; however, it was demonstrated at trial that Keith had not actually purchased the vehicle from his father as he reported to Nationwide. In fact, while he was pursuing his claim with Nationwide, he was also pursuing a claim with his father's insurance carrier, Allstate Insurance Company, reporting to that carrier that his father owned the pickup truck.
On July 12, 1993, a grand jury sitting in the Eastern District of Virginia indicted Keith on seven counts of mail fraud, 18 U.S.C. §§ 1341 and 2, arising out of his use of the mail to defraud Nationwide. On August 2, 1993, Keith initially appeared before a magistrate judge. At that time, the magistrate judge continued Keith's arraignment to August 19, 1993, in order to permit Keith to obtain counsel, finding that the ends of justice were served by the continuance.
Upon motion of the United States of America and with the concurrence of the defendant, it is hereby ordered that the trial of this case be continued to November 15, 1993, due to illness of counsel for the United States.
(J.A. 40). Notably, this order was signed by defense counsel as "[s]een and agreed." Id.
On November 15, 1993, the case was called for trial before Judge Payne. At that time, Keith moved for dismissal of the indictment, claiming a violation of the Speedy Trial Act, 18 U.S.C. § 3161. Keith asserted that the period of time covered by the continuance of the trial date was not properly excludable because Judge MacKenzie had not made a finding that the ends of justice were served by the continuance. The Assistant United States Attorney then explained to Judge Payne what had occurred, and defense counsel agreed, specifically noting that Keith had not been prejudiced by the delay. Judge Payne then made a finding that the continuance did serve the ends of justice and denied Keith's motion for dismissal.
A jury convicted Keith of three of the seven mail fraud counts contained in the indictment. He was sentenced to 21 months' imprisonment. Keith appeals.
Keith asserts that because his November 15, 1993 trial occurred after the seventy-day mandate of the Speedy Trial Act, his Speedy Trial Act rights were violated. See 18 U.S.C. § 3161(c)(1). He contends that the latest day his trial could have commenced was October 28, 1993, seventy days after August 19, 1993, the day when the magistrate judge appointed counsel. Keith's argument is premised on the fact that the period of time covered by the continuance obtained on the government's motion (seventeen days) was not excludable. The government counters by asserting that the time at issue was excludable under 18 U.S.C. § 3161(h)(8)(A).
We review the legal standards applied by the district court in making its ends of justice determination de novo and review the district court's findings under the Speedy Trial Act (the Speedy Trial Act or the Act), 18 U.S.C. § 3161, under the clearly erroneous standard. United States v. Frey, 735 F.2d 350, 352 (9th Cir. 1984).
resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interest of the public and the defendant in a speedy trial.
(iii) Whether, in a case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified in section 3161(b), or because the facts upon which the grand jury must base its determination are unusual or complex[;] (iv) Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.
Unless it is clear from the record that the trial court struck the proper balance when it granted the continuance, the twin purposes of the record requirement will be ill-served. The trial court will not focus properly on the correct balancing at the time the continuance is granted, and the appellate court will have to settle for reviewing retroactive rationalizations instead of contemporaneous reasoning. Allowing the granting of an ends-of-justice continuance to take place outside the boundaries discussed above also invites much wider use of this procedural device than Congress intended.
Doran, 882 F.2d at 1516; see also Tunnessen, 763 F.2d at 77 (Because "Congress intended that the decision to grant an ends-of-justice continuance be prospective, not retroactive; an order granting a continuance on that ground must be made at the outset of the excludable period.").
Judge MacKenzie orally granted the government's motion for a continuance and subsequently entered a written order, noting that the continuance was granted on account of the Assistant United States Attorney's illness and that Keith agreed to the continuance. Judge MacKenzie did not state any statutory provision of the Speedy Trial Act in his order. At trial, in response to Keith's motion to dismiss, Judge Payne stated the ends of justice served by the continuance outweighed the best interest of the public and Keith in a speedy trial.
In our view, it is clear that Judge MacKenzie's order did not meet the procedural requirements of § 3161(h)(8)(A). While it is true that Judge MacKenzie states a reason for granting the government's motion for a continuance in his written order — the illness of counsel for the government — it does not refer to the Act, let alone the ends of justice section of the Act. Furthermore, it is also unclear whether the district court conducted the necessary balancing as required by § 3161(h)(8)(A) when it granted the government's motion for a continuance. Under such circumstances, we cannot conclude that Judge MacKenzie's order met the technical procedural requirements of § 3161(h)(8)(A).
It is also clear that Judge Payne's actions did not cure the deficiencies of Judge MacKenzie's order. As noted above, it is unclear whether Judge MacKenzie performed the necessary weighing as required by § 3161(h)(8)(A) at the time he granted the government's motion for a continuance. That being the case, we cannot conclude that the procedural requirements of § 3161(h)(8)(A) were met because it must be clear from the record that the judge granting the continuance conducted the mandatory balancing contemporaneously with the granting of such continuance. Doran, 882 F.2d at 1516; Tunnessen, 763 F.2d at 76.
We are left then with the question of whether Keith can take advantage of the delay caused by the continuance. In general, a defendant cannot waive his right to a speedy trial under the Act. United States v. Kucik, 909 F.2d 206, 210-11 n. 4 (7th Cir. 1990), cert. denied, 498 U.S. 1070, 111 S.Ct. 791, 112 L.Ed.2d 853 (1991); see also United States v. Willis, 958 F.2d 60, 63 (5th Cir. 1992); United States v. Berberian, 851 F.2d 236, 239 (9th Cir. 1988), cert. denied, 489 U.S. 1096, 109 S.Ct. 1567, 103 L.Ed.2d 934 (1989); United States v. Ray, 768 F.2d 991, 998 n. 11 (8th Cir. 1985); United States v. Pringle, 751 F.2d 419, 434-35 (1st Cir. 1984); United States v. Carrasquillo, 667 F.2d 382, 388-90 (3d Cir. 1981). The reasoning behind this general rule rests on the notion that a defendant cannot waive the public's interest in a speedy trial. See Willis, 958 F.2d at 63 ("Allowing the defendant to waive the Act's provisions would compromise the public interest in speedy justice. . . . The Act's central intent to protect society's interests requires that a defendant's purported waiver of his rights under the Act be ineffective to stop the speedy trial clock from running.").
This type of waiver must be distinguished from the one provision of the Act that permits a waiver. See 18 U.S.C. § 3162(a)(2) ("Failure of the defendant to move for dismissal prior to trial or entry of a plea of guilty . . . shall constitute a waiver of the right to dismissal under this section.").
If we were to find that the delay caused by the waiver did not stop the speedy trial clock, then we would be rewarding the defendants by enhancing their chances of dismissal. In essence, defendants would have successfully worked both sides of the street, lulling the court and prosecution into a false sense of security only to turn around later and use the waiver-induced leisurely pace of the case as grounds for dismissal.
Pringle, 751 F.2d at 434.
The courts, however, differ as to when a defendant is precluded from taking advantage of the time covered by a continuance that is occasioned by a defendant's consent and/or waiver. For example, Kucik and Pringle seem to have adopted a broad principle that a defendant's participation in a request for a continuance prevents him from relying on that period covered by the continuance in obtaining a dismissal. Kucik, 909 F.2d at 211; Pringle, 751 F.2d at 434. In contrast, the court in Willis rejected the breadth of Kucik and Pringle, noting that a defendant's mere "request for or acquiescence in a continuance" does not prevent the defendant from using that time for dismissal. Willis, 958 F.2d at 64. Rather, a defendant cannot make use of the discrete period of time covered by a continuance unless the "defendant requests a continuance under an erroneous interpretation or application of one of the Act's provisions and the district court simply errs in its application of the Act to the defendant's request." Id. The court in Willis reasoned: "Our holding that the provisions of the Act are non-waivable would be meaningless if we adopted the rule that the defendant waives his ability to move for dismissal of the indictment simply by asking for or agreeing to a continuance." Id. Finally, the court in Willis noted that dismissal would be appropriate "where the district court grants a continuance based solely upon a defendant's `waiver' without identifying an applicable exception or performing an ends of justice analysis under § 3161(h)(8)." Id.
It is the responsibility of the district court to ensure that a request for a continuance in a criminal case which threatens to delay trial past the 70-day mark falls within one of the Act's exceptions. Congress's intent in providing for the dismissal sanction was "to serve as a deterrent for the failure of the United States Attorney or the court to comply with the Act."
Willis, 958 F.2d at 64 (quoting Pringle, 751 F.2d at 434). However, we also believe the rule formulated in Willis is too narrow because we believe that dismissal is not always mandated when the district court fails, in granting the continuance, to identify a section of the Act or to perform an ends of justice analysis, and also because we believe the rule permitting an exception to the nonwaiver principle should not be limited to situations when it is the defendant who requests the continuance.
Rather, the appropriate inquiry, in our view, is whether, after a careful review of the record in its entirety, the reasons underlying the district court's granting of the continuance, as agreed to by the defendant, set forth a sufficient factual basis which would support an ends of justice finding under the Act. If the underlying reasons for the granting of the continuance, as agreed to by the defendant, support an ends of justice finding under the Act, the defendant should not be at liberty to take advantage of that discrete period of time covered by the continuance. If not, the defendant should be entitled to use that time to obtain a dismissal under the Act. In our view, such an approach clearly serves the interests of the public and the defendant in a speedy trial, and is faithful to the mandate of Congress that courts assume part of the responsibility in strictly complying with the Act. Accordingly, we hold that if a defendant affirmatively consents to a motion for a continuance and the reasons for the granting of that motion as garnered from the record are sufficient to support a finding that the ends of justice would be met by granting the motion, the defendant cannot take advantage of that discrete period of time covered by the continuance in asserting a violation of the Speedy Trial Act.
In this case, it is clear, and not disputed, that Keith affirmatively agreed to the government's motion for a continuance due to the illness of counsel for the government. It is also clear from the record, as Keith concedes, that the reason the district court granted the motion (the illness of counsel for the government) justified an ends of justice finding under § 3161(h)(8)(A). Therefore, we believe that Keith cannot take advantage of that seventeen-day discrete period of time covered by the continuance granted on the government's motion in asserting a violation of the Speedy Trial Act. Because Keith cannot take advantage of this time, his trial commenced before the running of the speedy trial clock.
U.S.S.G. § 3C1.1. When a defendant objects to an increase in his offense level for obstruction of justice for perjury, the district court "must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice, or attempt to do the same, under the perjury definition [set out by the court]." United States v. Dunnigan, 507 U.S. ___, ___, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993). The Court in Dunnigan defined perjury as the giving of "false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory." Id. at ___, 113 S.Ct. at 1116.
I find with respect to the obstruction of justice that Mr. Keith was testifying under oath[,] that at the time he gave false testimony concerning a material matter, in particular the ownership of the car, the general nature of his conduct and intent[,] and that his testimony was given with the willful intent to provide the false testimony rather than as a result of any confusion or mistake or accident or a faulty memory[;] and therefore the two-point enhancement for obstruction of justice has been established by a preponderance of the evidence.
It is clear that there was a sufficient basis in the record for the district court to conclude that Keith gave "false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory." Dunnigan, 507 U.S. at ___, 113 S.Ct. at 1116. Accordingly, the district court did not err in enhancing Keith's offense level by two levels for obstruction of justice. U.S.S.G. § 3C1.1.


AND NOW, this 27th day of March, 2018, upon consideration of Plaintiff's Motion for Summary Judgment, the Court, upon review of the Acting Commissioner of Social Security's final decision, denying Plaintiff's claim for disability insurance benefits under Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., and denying Plaintiff's claim for supplemental security income benefits under Subchapter XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., finds that the Acting Commissioner's findings are supported by substantial evidence and, accordingly, affirms. See 42 U.S.C. § 405(g); Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied sub nom., 507 U.S. 924 (1993); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); see also Berry v. Sullivan, 738 F.Supp. 942, 944 (W.D. Pa. 1990) (if supported by substantial evidence, the Commissioner's decision must be affirmed, as a federal court may neither reweigh the evidence, nor reverse, merely because it would have decided the claim differently) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).
Therefore, IT IS HEREBY ORDERED that Plaintiff's Motion for Summary Judgment (Doc. No. 12) is DENIED and Defendant's Motion for Summary Judgment (Doc. No. 14) is GRANTED.
 Plaintiff argues, in essence, that the Administrative Law Judge (“ALJ”) erred by: (1) failing to give adequate weight to the medical opinion evidence provided by Plaintiff's treating physician in formulating Plaintiff's residual functional capacity (“RFC”); (2) failing to base Plaintiff's RFC on substantial evidence because he did not rely on specific medical opinion evidence of record; and (3) failing to evaluate properly Plaintiff's subjective complaints. The Court disagrees and finds that substantial evidence supports the ALJ's findings as well as his ultimate determination, based on all the evidence presented, of Plaintiff's non-disability.
First, the Court finds no merit in Plaintiff's contention regarding the ALJ's decision not to give controlling weight to the opinion evidence provided by treating physician Scott D. Mueller, M.D. It is well-established that “[t]he ALJ-not treating or examining physicians or State agency consultants-must make the ultimate disability and RFC determinations.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (citing 20 C.F.R. §§ 404.1527(e)(1), 404.1546(c)). “The law is clear . . . that the opinion of a treating physician does not bind the ALJ on the issue of functional capacity.” Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011). A treating physician's opinion is only entitled to controlling weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record.” Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001) (quoting 20 C.F.R. § 404.1527(c)(2)). “If, however, the treating physician's opinion conflicts with other medical evidence, then the ALJ is free to give that opinion less than controlling weight or even reject it, so long as the ALJ clearly explains [his or] her reasons and makes a clear record.” Salles v. Comm'r of Soc. Sec., 229 Fed.Appx. 140, 148 (3d Cir. 2007). A treating physician's opinion on the ultimate issue of disability is not entitled to any “special significance, ” and an ALJ is not required to accept it since the determination of whether an individual is disabled “is an ultimate issue reserved to the Commissioner.” Smith v. Comm'r of Social Sec., 178 Fed.Appx. 106, 112 (3d Cir. 2006).
At the outset, the Court emphasizes that both opinions of Dr. Mueller at issue here consist merely of simple two- or three-page check-box evaluations that were filled out by the doctor. (R. 514-16, 1038-39). The forms largely contain options to circle or check and a few blanks to be filled in by hand. The Court of Appeals for the Third Circuit has stated that “[f]orm reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best.” Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993). Thus, the Court notes that Dr. Mueller's opinions lack significant discussion, explanation, or details to justify his statements contained therein.
Moreover, the Court finds that the ALJ sufficiently explained his reasons for giving Dr. Mueller's opinions less than controlling weight in his analysis. The ALJ did not fail to provide sufficient reasons for discounting Dr. Mueller's opinions, nor did he simply substitute his own lay analysis for the judgment of Dr. Mueller in formulating Plaintiff's RFC. Rather, the ALJ fulfilled his duty as fact-finder to evaluate Dr. Mueller's opinions, considering a number of factors, and in light of all the evidence presented in the record. See 20 C.F.R. §§ 404.1527, 416.927.
In fact, the ALJ specified that he was giving different portions of Dr. Mueller's opinions either “little weight, ” “more weight, ” or “great weight” only after engaging in an extensive discussion of evidence including Plaintiff's treatment records and other objective medical evidence, opinion evidence, Plaintiff's reported symptoms and discussion of his activities of daily living. (R. 533-34). Then, after summarizing the findings from Dr. Mueller's two opinion forms, the ALJ explained that he was giving “little weight” to the limitations on sitting, standing, and walking, and the need for changing positions within the time and activity noted, because those limitations were not supported by the overall objective findings of record, treatment history, reports of symptoms, and activities of daily living. (R. 533). The ALJ also explained that, for the same reasons, he was giving “little weight” to the opinion as it concerned taking additional breaks and missing days per month, noting that Plaintiff had not reported any problem having entire days where he could not perform even simple tasks and that Dr. Mueller had offered no explanation for such limitations. (R. 533). The ALJ also gave “little weight” to the opinion with regard to Plaintiff needing to elevate his legs because no doctor had advised him to do so, Plaintiff had not reported a need to do so, and no rationale was provided for this limitation. (R. 533). On the other hand, the ALJ said he was giving “more weight” to Dr. Mueller's lifting and carrying limitation of 20 pounds than to his limitation of less than 5 pounds, because the higher limit was more consistent with Plaintiff's reports to Dr. Mueller and his testimony before the court, as well as the other objective medical findings. (R. 533-34). The ALJ also explained that he was giving “great weight” to Dr. Mueller's limitations on twisting, bending, stooping, squatting and climbing, noting that they are supported by the objective findings of record. (R. 534). The ALJ explained that he was giving “little weight” to the opinion's limits regarding time off-task, since Plaintiff had never reported problems with concentration or attention to Dr. Mueller or to any other treating or examining source, nor was there any evidence to support such a restriction in the record. (R. 534). Finally, the ALJ stated that he gave “little weight” to the opinion that Plaintiff was limited to working “zero” hours per day and being completely disabled, as such limitations were not supported by Plaintiff's current work activity of working at least two hours some days and much more than that some weeks, nor were such limitations supported by the other objective findings in the record. (R. 534).
Plaintiff's various side arguments concerning this issue also have no merit. For example, Plaintiff claims that Dr. Mueller's opinions are not inconsistent with the diagnostic studies, treatment notes and activities of daily living noted in the record. The diagnostic studies in the record, however are from prior to the relevant period, the treatment notes, which were discussed thoroughly, do not support the extreme limitations Dr. Mueller alleges, and the activities of daily living, likewise, are quite extensive and not supportive of the extreme limitations Dr. Mueller proposes. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (requiring ALJs to consider activities of daily living in formulating a Plaintiff's RFC). Plaintiff also complains that the ALJ failed to consider the treatment records of Steven B. Wolf, M.D., who performed surgery on Plaintiff prior to his alleged onset date. Although an ALJ is not required to cite to every record in his decision, see Hur v. Barnhart, 94 Fed.Appx. 130, 133 (3d Cir. 2004), the Court notes that the ALJ did discuss and/or refer to Dr. Wolf's treatment records several times in his decision (R. 524, 527-28, 534). Moreover, Dr. Wolf's records do not provide support for Plaintiff's claim in any event, as they are from a period prior to the alleged onset date and showed that his surgery had improved his condition. (R. 289-333).
Plaintiff also contends that the ALJ improperly referenced his not being referred for additional steroidal injections, a TENS unit, or physical therapy, when in actuality they had been attempted without lasting success. The record, however, simply does not support this claim. Additionally, Plaintiff argues that the ALJ improperly cast doubt on Dr. Mueller's finding of a positive straight leg raise on examination because it did not include details on how such test was administered. While the ALJ was dubious about the result reported since the record contained no explanation of how it was conducted (seated or supine, the degree of the positive finding, the type of pain elicited, or which leg was positive), the questionable reliability of this test was only one of many concerns that the ALJ had with Dr. Mueller's findings and the ALJ also noted that he had the same concern about the same test (which produced an opposite, negative, result) when carried out by the consultative examiner. To the extent that Plaintiff raises other related objections to the ALJ's treatment of Dr. Mueller's opinion, the Court also finds them to be without merit.
The ALJ then concluded, and the Court agrees, that the RFC is supported by the overall objective findings of record, normal findings by the consultative examiner (discussed infra), Plaintiff's treatment history (including surgeries prior to the onset date but only maintenance pain medication since the alleged onset date), Plaintiff's reports of symptoms showing aggravation which is accounted for by limitations in the RFC, and Plaintiff's activities of daily living. The Court thus finds that the ALJ thoroughly and carefully addressed all relevant issues in formulating Plaintiff's RFC and, specifically, that the ALJ did not err in weighing the opinion evidence of Dr. Mueller. The Court finds that substantial evidence supports the ALJ's evaluation of Dr. Mueller's opinion evidence and his decisions as to the weight he gave to those opinions in making his ultimate determination.


Like Dan Domenico and Dominic Lanza before him, Judge Robert Summerhays is a Trump district court nominee who was originally considered for the Court of Appeals. While Summerhays was ultimately not selected for the Fifth Circuit (the Administration chose Kyle Duncan), he is now pending appointment to the Western District of Louisiana.
Robert Rees Summerhays was born on September 10, 1965 in Fort Worth, Texas. Summerhays attended the University of Texas at Austin, graduating with high honors in 1989, and then joined the U.S. General Accounting Office in Dallas as an evaluator.
After two years in Dallas, Summerhays enrolled at the University of Texas at Austin Law School, graduating with high honors in 1994. He then clerked for Judge Eugene Davis on the U.S. Court of Appeals for the Fifth Circuit. After his clerkship, Summerhays joined the Dallas office of Weil, Gotshal & Manges LLP as an associate. In 2003, he became a partner at the firm.
In 2006, Summerhays was named a Bankruptcy Judge on the U.S. Bankruptcy Court for the Western District of Louisiana. He still serves on that court today. He also served as Chief Bankruptcy Judge from 2009 to 2017.
Summerhays has been nominated to fill a vacancy on the U.S. District Court for the Western District of Louisiana. The Western District is facing a vacancy crisis, with four of the seven allotted judgeships for the District currently vacant, and only two nominees pending. This crisis was exacerbated by the Republican Senate’s failure to confirm any Obama nominations to Louisiana seats in the 114th Congress.
The vacancy Doughty has been nominated to fill opened on June 5, 2017, when Judge Rebecca Doherty moved to senior status. However, Summerhays was actually recommended by Louisiana senators Bill Cassidy and John Kennedy for appointment to the U.S. Court of Appeals for the Fifth Circuit seat vacated by Judge Eugene Davis. In his interview with the White House, Summerhays expressed his willingness to take a District Court appointment if the White House chose not to nominate him for the Court of Appeals. Sure enough, the Trump Administration nominated conservative lawyer Kyle Duncan for the Fifth Circuit and tapped Summerhays for the Western District.
After his clerkship, Summerhays joined the Dallas office of Weil, Gotshal & Manges LLP, working in complex commercial litigation and securities litigation. Among the more prominent cases he handled at the time, Summerhays represented Ernst & Young in defending against a securities class actions suit, managing the litigation until the ultimate dismissal by Judge Sam Lindsay. He also represented the plaintiff in a state-law antitrust action against United Technologies Corporation, leading to a verdict for his client.
Summerhays also handled many mediations, arbitrations, and other alternative dispositions. Notably, he represented Hughes Electronics in a $1 Billion arbitration action against Boeing, guiding the case to a settlement.
In re Vidalier – The district court reversed Summerhays’ ruling that a married debtor could not file late joint tax returns after the death of his spouse for years when the spouse was alive.
Joyner v. Liprie – This case involved an estate action brought by a former business partner that was removed to federal court. Summerhays declined to remand the action to state court, ruling that the causes of action brought could not be asserted by the plaintiff. The District Court declined to adopt this portion of the report, remanding the action to state court.
In re Miller – In this case, Summerhays ruled that 11 U.S.C. § 1325 prevented a creditor from seeking an unsecured deficiency claim. The Fifth Circuit reversed this ruling.
As a young attorney, Summerhays authored an article discussing the scope of Corporate Attorney-Client privilege. In the article, Summerhays criticizes the Fifth Circuit decision in Garner v. Wolfinbarger, which created an exception to attorney-client privilege in suits where corporate shareholders were suing management in derivative suits. Summerhays notes that the “doctrinal underpinnings of the Garner exception are frustratingly ambiguous.” He also criticizes the expansion of Garner to cover non-derivative suits and suits against majority shareholders. Instead, he proposes limiting Garner only to suits where shareholders are seeking to vindicate either rights common to all shareholders or rights of the corporations. Judge James “Jimbo” Stephens ultimately ruled that Doughty was not required to recuse himself from the case.
Unlike fellow nominee Michael Juneau, who faced significant opposition in the Senate Judiciary Committee, Summerhays should face a relatively easy confirmation for three reasons. First, Summerhays has extensive experience with complex litigation including arbitrations and mediations, a good skill set for a federal trial judge. Second, Summerhays has a long and uncontroversial record on the bench, including a very low rate of reversal. Finally, Summerhays lacks a controversial paper trail and has managed not to offend any key judicial stakeholders.
As such, it is likely that Summerhays will be confirmed by this summer, adding another Trump appointment onto the Western District of Louisiana.
 Sen. Comm. on the Judiciary, 115th Cong., Robert Summerhays: Questionnaire for Judicial Nominees 2.
 See Summerhays, supra n. 1 at 56.
 See Summerhays, supra n. 1 at 44.
 In re Capstead Mortg. Secs. Litig., 258 F. Supp. 2d 533 (N.D. Tex. 2003).
 Chromalloy Gas Turbine Corp. v. United Tech. Corp., No. 95-CI-12541 (Bexas County, Tex. filed 1995).
 Boeing-Hughes Electronics Purchase Price Arbitration.
 See Summerhays, supra n. 1 at 14.
 2006 WL 3873268 (Bankr. W.D. La. Dec 22, 2006), rev’d, 2008 WL 4003671 (W.D. La. Aug. 29, 2008).
 2012 WL 1144614 (Bankr. W.D. La. Apr. 04, 2012), report and recommendation adopted in part, rejected in part, Joyner v. S.F.L. & S.I.L., 485 B.R. 538 (W.D. La. 2013).
 No. 07-20542 (Bankr. W.D. La. Jan. 24, 2008), rev’d, 570 F.3d 633 (5th Cir. 2009).
 Robert R. Summerhays, The Problematic Expansion of the Garner v. Wolfinbarger Exception to the Corporate Attorney-Client Privilege, 31 Tulsa L.J. 275 (Winter 1995).


text:
On 29 November 2018, the Court of Justice of the European Union delivered its judgment in the case Harry Mensing v. Finanzamt Hamm (Case C-264/17), addressing the application of the profit margin scheme when the creators supply the works of art and declared the supply as an intra-Community supply exempt from VAT.
The general rule is that VAT is calculated over the total amount that is charged to the customer (“selling price”). The profit margin scheme allows a different method, under which a VAT taxable reseller of second hand goods, works of art, antiques and collector’s items (“reseller”) may calculate VAT over the profit margin of the supply instead of the selling price. The profit margin is equal to the difference between the selling price charged and the purchase price of the reseller.
Harry Mensing (“Mensing”) is a trader in work of arts in various cities in Germany. In 2014, Mensing received works of art which were supplied by creators residing in another Member State. The creators declared the work of arts as a VAT exempt intra-Community supply. Consequently, Mensing paid German VAT on those supplies in respect of the intra-Community acquisition. Mensing did not deduct the input VAT related to those supplies although, according to the referring court, it was still open for him to do so.
The German tax authorities rejected the request of Mensing to opt for the profit margin scheme on the supply of the works of art based on German legislation which excludes intra-Community supplies from the profit margin scheme. In addition, the question was raised whether the profit margin scheme can be used when the suppliers are not mentioned in art. 314 of the VAT Directive.
The CJEU first considered that a reseller may opt for the application of the profit margin scheme when the work of art is supplied by the creator in the context of an exempt intra-Community supply. According to the Court, the profit margin rule regulates the VAT taxation when the goods are sold by the reseller, and not when the reseller acquires the goods. Therefore, the intra-Community supply of the creators is irrelevant.
Secondly, the CJEU considered that a VAT taxable person may opt for the application of the profit margin scheme even though the creators are persons who are not mentioned in art. 314 of the VAT Directive. The CJEU concluded that art. 316 of the VAT Directive provides resellers the right to opt for the profit margin scheme and have to be viewed separately and additionally to art. 314 of the VAT Directive, under which the resellers are obliged to apply the margin scheme.
Thirdly, the CJEU considered that the reseller may not deduct input VAT and, at the same time, opt for the profit margin scheme.

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