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ATCHISON, T. & S. F. RY. CO.
RAILROAD COMMISSION OF STATE OF CALIFORNIA et al. LOS ANGELES & S. L. R. CO. v. SAME. SOUTHERN PAC. CO. et al. v. SAME.
Argued April 23, 24, 1931.
[Syllabus from pages 381-383 intentionally omitted Messrs. C. W. Durbrow, of San Francisco, Cal., and Frank Karr and Robert Brennan, both of Los Angeles, Cal., for appellants.
Mr. Arthur T. George, of San Francisco, Cal., for appellees.
These are appeals from judgments of the Supreme Court of California, which affirmed an order of the railroad commission of that state requiring the appellants to construct a union passenger station in the city of Los Angeles, together with incidental connections, extensions, improvements and terminal facilities, in substantial compliance with the plan outlined by the commission. 209 Cal. 460, 288 P. 775.
In reaching its conclusion, the Interstate Commerce Commission made an extended review of the question of the expense involved. Stating that 'if a union station were built at the Plaza under substantially the plan presented by the California commission, the new money necessary to be raised, less the value of property released from passenger service, would be about $5,500,000. The total investment in passenger facilities under the Plaza plan would approximate $9,500,000.' 100 I. C. C. page 457.
After setting forth its findings upon the record before it, the commission reserved jurisdiction for the purpose of making such further findings and orders, and issuing such certificates, as should be warranted in the event that the plan of the state commission as finally evolved should be materially different from that 'as here considered to be in the public interest.' Id., 100 I. C. C. page 461.
Following this action of the Interstate Commerce Commission, the proceeding before the state commission was reopened. The action of the federal commission was submitted, hearings were had at which evidence was received, and, on July 8, 1927, the state commission made the order, which was the subject of the judgments now under review, requiring the building of the station within the Plaza area and the establishment of the connections, additions and facilities which that project involved. The state commission found that 'the present and future public convenience and necessity' required the construction of the union station, and that it could be constructed at a cost of approximately $10,000,000 in substantial compliance with the plan outlined, which was found to be in all essential respects similar to that considered by the Interstate Commerce Commission in its order above mentioned. 30 Opinions, R. R. Com., Cal. 151.
Petitions for final order were the pre sented by the city of Los Angeles and the state commission to the Interstate Commerce Commission. After further hearing the latter commission made its report, on May 8, 1928, adhering to the conclusions of its former report that 'public convenience and necessity' required the extension by the railway companies of their respective main lines in the city of Los Angeles 'so as to reach and serve a union passenger station and terminal which they may construct in the Plaza district,' pursuant to order of the state commission to that effect, with 'the abandonment of other portions of main lines to provide for incidental rearrangement of routes, and the abandonment of train service on Alameda Street,' and that 'such joint use is in the public interest and practicable, without impairing the ability of the carrier or carriers owning or entitled to the enjoyment of such track or tracks to handle its or their own business.' The Interstate Commerce Commission issued its certificate accordingly, but the petition for the issue of an order requiring the railway companies to construct a union station was denied. 142 I. C. C. 489.
Application was then made to the Supreme Court of the District of Columbia for a writ of mandamus to compel the Interstate Commerce Commission to consider the evidence introduced before it for the purpose of determining whether the commission should order the railway companies to build the union station, and, after consideration of the evidence, to make such an order as the facts required. Dismissal of that petition was reversed by the Court of Appeals of the District of Columbia (59 App. D. C. 81, 34 F.(2d) 228), and, upon writ of certiorari, this Court reversed the judgment of the Court of Appeals. This Court held that the Congress had not conferred upon the Interstate Commerce Commission authority to require the building of the station. 280 U. S. 52, 50 S. Ct. 53, 74 L. Ed. 163.
Thereupon, the railway companies petitioned the Supreme Court of the state to review the order of the state commission requiring the construction of the station, and that court entered the judgments of affirmance from which these appeals have been taken.
The questions presented are solely those of constitutional authority. All questions of fact as to public convenience and necessity, and as to the practicability of the proposed plan, have been resolved against the railway companies by the proper tribunals. This Court had held that the state commission could not require the construction of the proposed station, and the relocation of connecting tracks, without the approval of the Interstate Commerce Commission. That approval has been given. This Court has also decided that the Interstate Commerce Commission has not been empowered to require the building of the station. That commission has not attempted to exercise any such authority. The question now is as to the authority of the state commission, in view of the action of the federal commission, to require the construction of the station with the incidental arrangement of tracks and facilities. The decision of the state court is conclusive so far as the constitution and laws of the state are concerned. The state commission has acted within the power conferred upon it. The only questions before us are those arising under the federal constitution and the Interstate Commerce Act.
'Such authority, if conferred in Los Angeles, would have application to all interstate railroad junctions, including the numerous large cities of the country, with their residential, commercial, shopping, and municipal centers now fixed and established with relation to existing terminals. It would become a statute of the widest effect and would enter into the welfare of every part of the country. Various interests would be vitally affected by the substitution of a union station for the present terminals. A selection of its site from the standpoint of a city might greatly affect property values and likewise local transportation systems. The exercise of such power would compel the carriers to abandon existing terminals, to acquire new land and rights of way and enter upon new construction, to abandon large tracts, and to sell territory of the same extent as no longer necessary for the use of the carriers.
The considerations which led the Court to the conclusion that the power to compel the construction of such terminals had been withheld from the federal commission also make it clear that the authority which resided in the state had not been taken away except to the extent that the approval of the federal commission was required. The principle thus applicable has been frequently stated. It is that the Congress may circumscribe its regulation and occupy a limited field, and that the intention to supersede the exercise by the state of its authority as to matters not covered by the federal legislation is not to be implied unless the Act of Congress fairly interpreted is in conflict with the law of the State. Savage . Jo nes, 225 U. S. 501, 533, 32 S. Ct. 715, 56 L. Ed. 1182; Atlantic Coast Line Railroad v. Georgia, 234 U. S. 280, 293, 294, 34 S. Ct. 829, 58 L. Ed. 1312; Southern Railway Company v. Railroad Commission, 236 U. S. 439, 446, 35 S. Ct. 304, 59 L. Ed. 661; Illinois Central Railroad Company v. Public Utilities Commission, 245 U. S. 493, 510, 38 S. Ct. 170, 62 L. Ed. 425; Carey v. South Dakota, 250 U. S. 118, 122, 39 S. Ct. 403, 63 L. Ed. 886; Lehigh Valley Railroad Company v. Public Utility Commissioners, 278 U. S. 24, 35, 49 S. Ct. 69, 73 L. Ed. 161, 62 A. L. R. 805; International Shoe Company v. Pinkus, 278 U. S. 261, 265, 49 S. Ct. 108, 73 L. Ed. 318. We find no such conflict in this case, as the approval of the Interstate Commerce Commission has been obtained, and its certificate of public convenience and necessity has been issued, in relation to the rearrangement, extensions and abandonment of tracks, and the use of the terminal facilities, involved in the proposed plan, and nothing further was required by the Interstate Commerce Act.
Second. The appellants further insist that the certificates of the Interstate Commerce Commission are void. The point is that the certificates were not issued upon the application of the railway companies but in proceedings adverse to them and over their protest. It is urged that paragraphs 18 to 20 of section 1 of the Interstate Commerce Act give the commission no power to issue such certificates except upon application of the carriers, and that the certificates were also unauthorized under paragraph 21 of that section.
The provisions of these paragraphs (18 to 21) contain no such limitation as that suggested. While they relate 'to the construction, acquisition, extension, and abandonment of a railroad,' and 'deal primarily with rights sought to be exercised by the carrier' (Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. United States, 275 U. S. 404, 408, 48 S. Ct. 189, 191, 72 L. Ed. 338) these paragraphs do not exclude appropriate action by the commission upon applications by those who have a proper interest in the subject-matter, although they are not carriers. If the state could be deemed to have no authority to compel the building of such a union terminal as that here involved, the question would not arise. But if the state originally had this authority, and the federal legislation has not superseded it, but has required, as this Court has held, a certificate of public convenience and necessity from the Interstate Commerce Commission as a condition precedent to the validity of any order on the part of the state commission, we find no warrant for construing the statute as precluding the application which is necessary to obtain such a certificate. In its first opinion, this Court said that it was advised that the city of Los Angeles had filed a petition with the Interstate Commerce Commission and that the court thought that the course taken by the city 'was the correct one.' 264 U. S. pages 347, 348, 44 S. Ct. 376, 380, 68 L. Ed. 713. While the statement was obiter, it intimated an opinion which has been confirmed by further consideration of the purpose and terms of the statute. Nothing was said in the second opinion contrary to that view. The approval of the Interstate Commerce Commission and the issue of its certificate of public convenience and necessity being indispensable under the Act, application could properly be made by the authorities of the state, assuming that with such certificate that were entitled to require the establishment of the station.
Third. We are thus brought to the contention of the appellants that the order of the state commission deprives the railway companies of their property without due process of law, and denies to them the equal protection of the laws, in violation of the Fourteenth Amendment of the Federal Constitution.
The principle that the state, directly or through an authorized commission, may require railroad companies to provide reasonably adequate and suitable facilities for te co nvenience of the communities served by them, has frequently been applied. Wisconsin, Minnesota & Pacific Railroad Company v. Jacobson, 176 U. S. 287, 296, 301, 21 S. Ct. 115, 45 L. Ed. 194; Atlantic Coast Line Railroad Company v. North Carolina Corporation Commission, 206 U. S. 1, 26, 27, 27 S. Ct. 585, 51 L. Ed. 933, 11 Ann. Cas. 398; Missouri Pacific Railway Company v. Kansas, 216 U. S. 262, 279, 30 S. Ct. 330, 54 L. Ed. 472; Seaboard Air Line Railway Company v. Railroad Commission, 240 U. S. 324, 327, 36 S. Ct. 260, 60 L. Ed. 669; Mississippi Railroad Commission v. Mobile & Ohio Railroad Company, 244 U. S. 388, 390, 391, 37 S. Ct. 602, 61 L. Ed. 1216; Erie Railroad Company v. Public Utility Commissioners, 254 U. S. 394, 409, 410, 41 S. Ct. 169, 65 L. Ed. 322. Railroad carriers may be compelled by state legislation to establish stations at proper places for the convenience of their patrons.3 Minneapolis & St. Louis Railroad Company v. Minnesota, 193 U. S. 53, 63, 24 S. Ct. 396, 48 L. Ed. 614. They may be required at their own expense to construct bridges or viaducts whenever the elimination of grade crossings may reasonably be insisted upon, whether constructed before or after the building of the railroads. Missouri, Kansas & Texas Railway Company v. Oklahoma, 271 U. S. 303, 307, 46 S. Ct. 517, 70 L. Ed. 957. But the power to regulate is not unlimited. 'It may not unnecessarily or arbitrarily trammel or interfere with the operation and conduct of railroad properties and business.' Norfolk & Western Railway Company v. Public Service Commission, 265 U. S. 70, 74, 44 S. Ct. 439, 440, 68 L. Ed. 904; Mississippi Railroad Commission v. Mobile & Ohio Railroad Company, supra. The question in each case is whether, in the light of the facts disclosed, the regulation is essentially an unreasonable one. Wisconsin, Minnesota & Pacific Railroad Company v. Jacobson, supra; Norfolk & Western Railway Company v. Public Service Commission, supra. And 'the matter of expense is 'an important criteria to be taken into view in determining the reasonableness of the order." Oregon Railroad & Navigation Company v. Fairchild, 224 U. S. 510, 529, 32 S. Ct. 535, 540, 56 L. Ed. 863.
We find no basis for the conclusion that the findings of fact are unsupported by evidence, or that, in view of the facts thus ascertained, the order of the state commission is unreaable or arbitrary.
In this view, the judgments of the Supreme Court of the state are affirmed.
Mr. Justice McREYNOLDS is of opinion that the judgment of the court below should be reversed upon the ground that the assailed order of the railroad commission is arbitrary, unreasonable, and beyond any power which the state is competent to confer.
See Interstate Commerce Commission v. United States ex rel. Los Angeles, 280 U. S. 52, 61, 50 S. Ct. 53, 54, 74 L. Ed. 163.
Id., 280 U. S. pages 62, 63, 50 S. Ct. 53, 74 L. Ed. 163.

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Ashley is a senior trial consultant with The Focal Point. Based out of our New York office, Ashley has worked on numerous high-profile matters, including a complex auditing matter that was the first jury to ever hold a major accounting firm responsible for the loss of investor funds during the Madoff period. Some of her most notable cases are IBM v. Groupon; FDIC v. PricewaterhouseCoopers (PwC); ILS v. HyperBranch; Intellectual Ventures (IV) v. FedEx; FutureSelect v. Ernst & Young; Taylor, Bean & Whitaker Plan Trust v. PwC; and Butamax v. Gevo.
Ashley’s specialty is supporting clients who have high-volume, fast-paced cases. Cool-headed and steady, she has impressed clients with her ability to nimbly respond to rapidly changing deadlines. She is likewise particularly skilled in working with expert witnesses to visually present their opinions. She has worked extensively on patent cases throughout the U.S. As well, she has supported over a dozen trials, ranging from pharmaceutical matters to product infringement.
Ashley is a graduate of the University of Notre Dame, where she studied filmmaking, film theory, and philosophy. She then moved to New York to earn her MFA from Parsons’ Design and Technology program. At Parsons, Ashley’s work centered around emerging technologies and their impact on narrative design and story-telling. She enjoys approaching complex puzzles with a cybernetic lens and learning how systems function by studying their inherent structures and restraints.
In addition to film and design, Ashley enjoys creative writing. Her work has been featured in several magazines, including Karawaneand The Rag. She also finds joy in helping members of her community. As a court-appointed special advocate for CASA-NYC, Ashley works to find safe, permanent homes for foster care youth.

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First, paragraph (d) of the Louisiana Rule, which was amended effective April 12, 2006, requires disclosure of evidence known to the prosecutor that the prosecutor “knows, or reasonably should know” is exculpatory or mitigating. The Louisiana Rule imposes a significantly greater obligation on prosecutors, given that it requires disclosure not only of evidence that the prosecutor “knows” to be exculpatory, but also disclosure of evidence that the prosecutor “reasonably should know” is exculpatory.
Second, the Model Rule, as revised by the ABA in 2009, contains two paragraphs not included in Louisiana Rule 3.8. These paragraphs impose obligations on a prosecutor with regard to wrongfully convicted defendants. Model Rule paragraph 3.8(g) requires a prosecutor who “knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted” to “(1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor’s jurisdiction, to promptly disclose that evidence to the defendant unless a court authorizes delay, and undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.” See ABA Model Rules of Prof’l Conduct r. 3.8(g). Similarly, Model Rule paragraph 3.8(h) requires a prosecutor who “knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit” to “seek to remedy the conviction.” See ABA Model Rules of Prof’l Conduct r. 3.8(h).
 A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. The extent of mandated remedial action is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Competent representation of the sovereignty may require a prosecutor to undertake some procedural and remedial measures as a matter of obligation. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.
 Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).
 Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer’s office. Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law- enforcement personnel and other relevant individuals.
 When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a person outside the prosecutor’s jurisdiction was convicted of a crime that the person did not commit, paragraph (g) requires prompt disclosure to the court or other appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutor’s jurisdiction, paragraph (g) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or make reasonable efforts to cause another appropriate authority to undertake the necessary investigation, and to promptly disclose the evidence to the court and, absent court-authorized delay, to the defendant. Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must be made through the defendant’s counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate.
 A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.
Unlike other litigating lawyers, prosecutors are not merely advocates and officers of the courts, but also administrators of justice who have a duty to “seek justice, [and] not merely to convict.” See ABA Stds. Relating to the Admin. of Crim. Justice–The Prosec. Function std. 3–1.2 (3d ed. 1992). For other standards addressing the special responsibilities of prosecutors, see ABA Standards on Prosecutorial Investigations (2008); National Dist. Attorneys’ Assoc. Prosec. Stds. (2d ed. 1991).
Paragraph (a) of this rule prohibits a prosecutor from accepting and prosecuting charges that the prosecutor “knows” are not supported by “probable cause.” La. Rules of Prof’l Conduct r. 3.8(a) (2004). Prosecutors have an enormous amount of discretion in making charging decisions. In exercising discretion in determining whether to charge an accused with a crime, a prosecutor may properly consider the following factors, among others: reasonable doubt that the accused is guilty; the extent of harm caused by the offense; the disproportion of the authorized punishment in relation to the offense or offender; the motives of the complainant; the reluctance of the victim or witnesses to testify; the cooperation of the accused in identifying other wrongdoers; and the likelihood of prosecution by another jurisdiction. See ABA Stds. Relating to the Admin. of Crim. Justice–The Prosec. Function std. 3–3.9(b) (3d ed. 1992). The charging decision should not turn to any extent on the “personal or political advantages or disadvantages which might be involved” or on the prosecutor’s “desire to enhance his or her record of conviction.” Id. std. 3–3.9(d) (3d ed. 1992). Furthermore, a prosecutor should not “bring or seek charges greater in number or degree than can reasonably be supported with evidence at trial or than are necessary to fairly reflect the gravity of the offense.” Id. std. 3–3.9(f).
Paragraph (b) of the rule requires a prosecutor to make reasonable efforts to ensure that the accused is represented by counsel. La. Rules of Prof’l Conduct r. 3.8(b) (2004). Paragraph (c) prohibits a prosecutor from requesting that an accused person waive important pretrial rights such as the right to a preliminary hearing. Id. 3.8(c); see also ABA Stds. Relating to the Admin. of Crim. Justice–The Prosec. Function std. 3–3.10(c) (3d ed. 1992). Furthermore, the ABA Standards Relating to the Administration of Criminal Justice further admonish prosecutors against communicating with an accused “unless a waiver of counsel has been entered, except for the purpose of aiding in obtaining counsel or in arranging for the pretrial release of the accused.” Id. std. 3–3.10(a). As to preliminary hearings, a prosecutor “should not seek to delay a preliminary hearing” if the accused is in custody, nor should he or she seek a continuance of such a hearing “solely for the purpose of mooting the preliminary hearing by securing an indictment.” Id. stds. 3–3.10(d-e).
Paragraph (d) of the rule requires a prosecutor to disclose promptly all information that the prosecutor knows, or should know, is exculpatory or mitigating. See La. Rules of Prof’l Conduct r. 3.8(d) (2004); ABA Stds. Relating to the Admin. of Crim. Justice–The Prosec. Function std. 3–3.11 (3d ed. 1992); see also Brady v. Maryland, 373 U.S. 83 (1963); State v. Carter, 939 So. 2d 600, 603 n.2 (La. Ct. App. 2d Cir. 2006) (commending assistant district attorney for compliance with Rule 3.8(d) by acknowledging the record indicated an absence of a valid waiver of defendant’s privilege against self-incrimination). In addition, a prosecutor has a constitutional duty – although perhaps not an ethical one1 – to review all files under the prosecutor’s control and under the control of relevant law enforcement officers to search for exculpatory information. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) (holding that a prosecutor has a constitutional duty to learn of any favorable evidence known to others acting on state’s behalf); State v. Marshall, 660 So. 2d 819, 826 (La. 1995) (holding that prosecutor has a duty to learn of any favorable evidence known to anyone acting on state’s behalf, including police officers); see also State v. Oliver, 682 So. 2d 301, 311 (La. Ct. App. 4th Cir. 1996).
A number of criminal convictions have been reversed in Louisiana over the years as a result of the failure of prosecutors to disclose exculpatory Brady material. However, disciplinary actions against prosecutors are rare. See generally Kathleen “Cookie” Ridolfi, Tiffany M. Joslyn & Todd H. Fries, Material Indifference: How Courts are Impeding Fair Disclosure in Criminal Cases (N.A.C.D.L. 2014).
On July 8, 2009, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 09-454 entitled Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense. This opinion comprehensively discusses a prosecutor’s duties under Model Rule 3.8.
What constitutes “exculpatory” evidence is often a matter of confusion. However, the term “exculpatory evidence” includes evidence that may reasonably be used to impeach any witness whom the state may call at trial, including the following: evidence relating to any plea bargains or promises made to such witnesses, see In re Jordan, 913 So. 2d 775, 781 (La. 2005) (holding that a witness’ statement to police that it was dark and she did not have her glasses when she witnessed the crime was exculpatory evidence that the prosecutor had a duty to disclose); State v. Lindsey, 621 So. 2d 618, 628 (La. Ct. App. 2d Cir. 1993); State v. Williams, 338 So. 2d 672, 677 (La. 1976); evidence relating to any prior criminal record of arrests or convictions of such witnesses, see State v. Whitlock, 454 So. 2d 871, 873 (La. Ct. App. 4th Cir. 1984); evidence relating to any witness statements that are inconsistent with statements made by that or other witnesses at any time, see State v. Hunter, 648 So. 2d 1025, 1034 (La. Ct. App. 4th Cir. 1994) (witness’ prior inconsistent statement on a material issue is exculpatory).
Furthermore, “exculpatory” evidence includes evidence that any eyewitness who participated in an identification procedure identified a person other than the accused as the perpetrator of the charged crime, see State v. Falkins, 356 So. 2d 415, 417 (La. 1978), or failed to identify the accused as a participant in the charged crime, see State v. Curtis, 384 So. 2d 396, 398 (La. 1980); State v. Landry, 384 So. 2d 786, 788 (La. 1980). Finally, the term “exculpatory evidence” should also include any evidence establishing that the witness hesitated or was in any way equivocal in his or her identification of accused as a participant in the charged crime.
A number of criminal convictions have been reversed in Louisiana over the years as a result of the failure of prosecutors to disclose exculpatory Brady information. However, disciplinary actions against prosecutors are rare. See generally Kathleen “Cookie” Ridolfi, Tiffany M. Joslyn & Todd H. Fries, Material Indifference: How Courts are Impeding Fair Disclosure in Criminal Cases (N.A.C.D.L. 2014).
It was once uncertain in Louisiana whether a prosecutor’s “ethical” obligation under Rule 3.8(d) was broader than a prosecutor’s parallel “Due Process” obligation under the Constitution. Rule 3.8(d) “requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial’s outcome.” See ABA Formal Op. 09-454 (Jul. 8, 2009). That is, the rule arguably could require disclosure of even “immaterial” exculpatory evidence. See id. (citing e.g., Cone v. Bell, 556 U.S. 449, 470 n. 15 (2009)); see also Schultz v. Comm’n for Lawyer Discipline of the State Bar of Tx., SBOT Case No. D0121247202 (Dec. 17, 2015).
On October 18, 2017, the Louisiana Supreme Court resolved this unsettled question. In an opinion written by Justice Crichton, the court determined that a prosecutor’s “ethical” and “constitutional” duties “are coextensive.” See In re Seastrunk, 236 So. 3d 509, 510 (La. 2017). In so doing, the court reasoned that “under conflicting standards, prosecutors would face uncertainty as to how to proceed, as they could find themselves in compliance with the standard enumerated in Brady, but in potential violation of the obligation set forth in Rule 3.8(d).” Id. at 18. Furthermore, a broader obligation under Rule 3.8(d) would invite “the use of an ethical rule as a tactical weapon in criminal litigation.” Id. As a result, the court dismissed the formal charges against Mr. Seastrunk.
Evidence is “material” when “there is reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Turner v. United States, 137 S.Ct. 1885, 1893 (2017) (citations omitted). “A ‘reasonable probability’ of a different result” is one in which the suppressed evidence “‘undermines confidence in the outcome of the trial.'” Id.
On December 5, 2018, the Louisiana Supreme Court disbarred former federal prosecutor Salvador R. Perricone for inappropriate online posts relating to cases handled by his office. See In re Perricone, No. 2018-B-1233 (La. 2018).
From 2007 through 2012, the respondent posted a large number of anonymous comments on the website of the New Orleans Times-Picayune newspaper, nola.com, relating to high-profile prosecutions by the Office of the United States Attorney, Eastern District of Louisiana. Id. at 2. Among others, Perricone commented on investigations into Jefferson Parish political corruption, prosecutions of relatives of former Congressman William Jefferson, and prosecutions of former NOPD officers involved in post-Katrina shootings on the Danziger Bridge. For example, Perricone noted that the NOPD officers in the Danziger shooting case were “GUILTY AS CHARGED” and that it would be “safer if the NOPD would leave next hurricane and let the National Guard assume all law enforcement duties.” Id. at 6.
The court found that Perricone’s extrajudicial statements violated Rule 3.6 and Rule 3.8(f) because they had a “substantial likelihood of materially prejudicing an adjudicative proceeding” and “heightened the public condemnation” of accused individuals. Further, the court found that his statements violated Rule 8.4(d) because they were “prejudicial to the administration of justice.” These comments caused “serious, actual harm” to two of these cases and “most profoundly, to the reputation of the USAO.” Id. at 15.
Respondent’s own testimony reveals he was aware that he should not post these comments, yet he decided to do so anyway. Clearly, any mental disability from which respondent suffered did not prevent him from knowing his actions were wrong. Under these circumstances, we find absolutely no support for the conclusion that respondent has proven his mental condition caused the misconduct. Accordingly, we decline to consider his mental disability in mitigation.
Id. at 17. Noting “the well-settled proposition that public officials (and prosecutors in particular) are held to a higher standard than ordinary attorneys,” the court held that the “only appropriate sanction . . . is disbarment.” Finally, the court took the opportunity to address the larger issues created by lawyer social media use and abuse: “Our decision today must send a strong message to respondent and to all the members of the bar that a lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the Internet.” Id. at 18.
In the wake of the McDade Amendment of 1998, “[a]n attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” See 28 U.S.C. § 530B(a) (1998).
Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving public officials who engage in conduct that is prejudicial to the administration of justice or who state or imply an ability to influence improperly a government agency or official: disbarment, when a lawyer in an official position misuses that position with the intent to obtain a significant benefit for himself or another, or with the intent to cause serious or potential injury to a party or to the integrity of the legal process; suspension, when such a lawyer knowingly fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process; reprimand, when such a lawyer negligently fails to follow proper procedures or rules, and causes injury or potential injury to a party or to the integrity of the legal process; and, admonition, when such a lawyer engages in an isolated instance of negligence in not following proper procedures or rules, and causes little or no actual or potential injury to a party or to the integrity of the legal process. ABA Stds. for Imposing Lawyer Sanctions std. 5.2 (1992) (Failure to Maintain the Public Trust); id. stds. 5.21-5.24.


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CHIMPANZEE - chimpanzee n. A great ape of the genus Pan, native to Africa, and believed by biologists to be the closest extant relative.
MECHANIZED - mechanized v. simple past tense and past participle of mechanize.
mechanized adj. Equipped with machinery.
mechanized adj. (military) Equipped with armoured motor vehicles; compare motorized (“equipped with unarmoured vehicles”).
MECHANIZER - mechanizer n. A person who, or machine that mechanizes.
MECHANIZES - mechanizes v. Third-person singular simple present indicative form of mechanize.
MONARCHIZE - monarchize v. (transitive) To rule; to govern.
monarchize v. (transitive) To convert to a monarchy.
monarchize v. (intransitive) To act or play the part of a monarch.
MYCORHIZAE - Sorry, definition not available.
SCHEMATIZE - schematize v. (transitive) To organize according to a scheme.
schematize v. (transitive) To distort and simplify for the purpose of highlighting certain characteristics.


§ 228-2 Permit required; application.
§ 228-5 Interference with pedestrians and traffic.
§ 228-6 Inconvenience to property owners; noise; parking.
§ 228-7 Interference with other activities.
§ 228-8 Minimization and removal of debris.
§ 228-9 Permitted days and hours.
§ 228-10 Denial of permit; appeals.
§ 228-11 Waiver of requirements.
§ 228-12 Notification to Fire Inspections Bureau.
§ 228-13 Provision of off-duty police officers.
Peace and good order — See Ch. 404.
The taking of still or motion pictures, either on film, videotape or similar recording equipment, for commercial or educational purposes, intended for viewing on television or in theaters or for institutional use or for advertising purposes.
Any and every public street, highway, sidewalk or square, public park or playground or other public place within the borough which is within the jurisdiction and control of the Township.
No person, firm or corporation shall film or permit filming within the Township of Bloomfield without first obtaining a permit therefor, which permit shall set forth the location of such filming and the date or dates when filming shall take place.
Permits shall be obtained in the office of the Township Clerk during normal business hours. Applications for such permits shall be in a form approved by the Township Clerk and shall be accompanied by a permit fee as set forth in § 228-14. Incidental use of a public sidewalk or street which does not result in the closing of the street or sidewalk to public use shall not be considered filming on public land.
Where filming takes place on private property, permission of the owner must be obtained in writing.
No permit shall be issued for filming at a particular location in a residential zone within the Township of Bloomfield which would permit filming at said location on more than four days during any one calendar year.
Provides proof of insurance coverage as follows; for bodily injury for any one person, in the amount of $500,000; and for any aggregate occurrence, in the amount of $1,000,000.
Agrees, in writing, to indemnify and save harmless the Township of Bloomfield from any and all liability or damages from the use of such public lands.
The holder of a permit shall take all reasonable steps to minimize interference with the free passage of pedestrians and traffic over public lands and shall comply with all lawful directives issued by the Bloomfield Police Department with respect thereto.
The holder of a permit shall conduct filming in such a manner as to minimize the inconvenience or discomfort to adjoining property owners attributable to such filming and shall, to the extent practicable, abate noise and park vehicles associated with such filming off the public streets.
The Township Clerk may refuse to issue a permit whenever he/she determines, on the basis of objective facts and after a review of the application and a report thereon by the Police Department and by other Township agencies involved with the proposed filming site, that filming at the location and/or the time set forth in the application would violate any law or ordinance or would unreasonably interfere with the public's use of public lands, unreasonably interfere with the use and enjoyment of adjoining properties, unreasonably impede the free flow of vehicular or pedestrian traffic or otherwise endanger the public's health, safety or welfare.
Any person aggrieved by a decision of the Township Clerk denying or revoking a permit or a person requesting relief may appeal to the Mayor and Council. A written notice of appeal setting forth the reasons for the appeal shall be filed with the Township Clerk. An appeal from the decision of the Township Clerk. An appeal from the decision of the Township Clerk shall be filed within 10 days of the Township Clerk's decision. The Mayor and Council shall set the matter down for a hearing within 30 days of the day on which the notice of appeal was filed. The decision of the Mayor and Council shall be in the form of a resolution. A resolution supporting the decision of the Township Clerk or granting relief shall be approved by the Mayor and Council at the first regularly scheduled public meeting of the Mayor and Council after the hearing on the appeal, unless the appellant agrees, in writing, to a later date for the decision. If such a resolution is not adopted in the time required, the decision of the Township Clerk shall be deemed to be reversed and a permit shall be issued in conformity with the application or the relief shall be deemed denied.
The Mayor and Council may authorize a waiver of any of the requirements or limitations of this chapter and may authorize filming other than during the hours herein described or may permit filming at a particular location in a residential zone on more than four days during any one calendar year or may waive any other limitation or requirement of this chapter whenever it determines that strict compliance with such limitations will pose an unreasonable burden upon the applicant and that such a permit may be issued without endangering the public's health, safety or welfare.
The applicant shall notify the Fire Inspections Bureau 24 hours before filming takes place and permit the Fire Inspectors to inspect the site and the equipment to be used. The applicant shall comply with all firesafety instructions issued by the Fire Inspector.
The applicant will be required to hire one or more off-duty police officers when deemed necessary by the Police Chief.
Daily filming fee: $625 per day.
Any person violating this chapter or rules and regulations contained herein shall be subject to, upon conviction, the penalty as provided in § 1-15, General penalty, of this Code.
The provisions of this chapter shall not apply to the filming of news stories within the Township of Bloomfield.


United States of America, et al., Defendant/Crossclaim Defendants.
Crossclaim Defendants the United States, Department of the Interior (“DOI”), Bureau of Reclamation (“BOR”), and four officials of the DOI and BOR (collectively, the “United States”) move to dismiss Defendant Central Arizona Water Conservation District’s (“CAWCD”) crossclaim against them under Rules 12(b)(1) and 12(b)(6). The motion is fully briefed and no party has requested oral argument. Because the Court lacks jurisdiction over the crossclaim, it will grant the motion under Rule 12(b)(1).
Plaintiff Ak-Chin Indian Community sued CAWCD to establish its right to certain water. See Doc. 1. CAWCD moved to join the United States as a necessary party defendant under Rule 19, and the Court granted the motion. See Doc. 61. CAWCD then brought a crossclaim against the United States regarding CAWCD’s obligation to provide the water to Ak-Chin on behalf of the United States. See Doc. 65. The crossclaim seeks injunctive and declaratory relief. Id.
The history of the underlying dispute is summarized in the Court’s prior order of July 27, 2017. See Doc. 61 at 1-5. Relevant facts are repeated here.
CAWCD operates and maintains the Central Arizona Project (“CAP”) pursuant to an operating agreement with the United States. Doc. 65 ¶¶ 4-5. As part of a 1984 settlement with Ak-Chin, the United States committed to deliver not less than 75,000 acre-feet (“AF”) per year “from the main project works of the [CAP] to the southeast corner of the Ak-Chin Indian Reservation.” Ak-Chin Water Rights Settlement Act of 1984, Pub. L. No. 98-530, § 2(a), 98 Stat. 2698 (the “1984 Act”). Additionally, “[i]n any year in which sufficient surface water is available,” the DOI “shall deliver such additional quantity of water as is requested by the Community not to exceed ten thousand acre-feet.” Id. § 2(b). The 1984 Act identifies the CAP as the source of the mandatory 75,000 AF, but does not identify a source for the additional 10,000 AF. See Doc. 65 ¶¶ 21-22. The parties refer to this additional 10,000 AF as “§ 2(b) water,” and they dispute whether and under what circumstances CAWCD is obligated to supply it.
Pursuant to a contract between the United States and Ak-Chin, Ak-Chin submits an annual schedule of its desired water deliveries to the DOI, which reviews the schedule for compliance with governing statutes and contracts and transmits it to CAWCD to arrange the water deliveries. Doc. 1 ¶¶ 24-28. CAWCD alleges that the United States transmitted a 2017 schedule that included § 2(b) water and would have forced CAWCD to supply water in excess of its obligations. Doc. 65 ¶ 30. The United States instructed CAWCD that the § 2(b) water was to come from “any unused Indian contract water.” Id. ¶ 31.
CAWCD argues that various statutes allocate a total of 136,645 AF of CAP water for use by the Ak-Chin and San Carlos Apache tribes each year. See Doc. 65 ¶¶ 24-29, 51. Further, CAWCD asserts that forcing it to supply § 2(b) water from “unused Indian contract water” violates the 2007 CAP Repayment Stipulation from prior litigation between CAWCD and the United States. Doc. 65 ¶¶ 32-33; Doc. 65-1 at 49. Because § 2(b) water is “Excess Water” under the Stipulation, CAWCD argues that it has the “exclusive right in its discretion to sell or use [it] for any authorized purpose of the CAP.” Id.
*2 Federal courts are courts of limited jurisdiction, “possess[ing] only that power authorized by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Once jurisdiction is challenged in a Rule 12(b)(1) motion, it “is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]” Id. (internal citations omitted). To establish jurisdiction over its crossclaim against the United States, CAWCD must demonstrate both “statutory authority granting subject matter jurisdiction” over the claims and “a waiver of sovereign immunity.” E.J. Friedman Co. v. United States, 6 F.3d 1355, 1357 (9th Cir. 1993) (internal quotations and citation omitted). Unless CAWCD “satisfies the burden of establishing that its action falls within an unequivocally expressed waiver of sovereign immunity by Congress, it must be dismissed.” Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1088 (9th Cir. 2007).
CAWCD asserts two bases for a waiver of sovereign immunity: the Reclamation Reform Act of 1982 (the “RRA”), 43 U.S.C. § 390uu, and the Administrative Procedure Act (the “APA”), 5 U.S.C. §§ 702, 704, 706. Doc. 65 ¶¶ 39, 43.
Consent is given to join the United States as a necessary party defendant in any suit to adjudicate, confirm, validate, or decree the contractual rights of a contracting entity and the United States regarding any contract executed pursuant to Federal reclamation law. The United States, when a party to any suit, shall be deemed to have waived any right to plead that it is not amenable thereto by reason of its sovereignty, and shall be subject to judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances.
The first sentence of the statute is clear: “Consent is given to join the United States as a necessary party defendant....” Id. (emphasis added). The United States concedes that this language authorizes its joinder as a defendant under Federal Rule of Civil Procedure 19, as occurred earlier in this case. But the United States argues that the statute does not authorize CAWCD’s crossclaim against it. Doc. 76 at 4-8. The Court agrees.
Section 390uu grants consent “to join the United States as a necessary party defendant in any suit to adjudicate” certain rights under a federal reclamation contract. (Emphasis added.) This language is best interpreted to grant consent to join the United States in an action between other parties –for example, two water districts, or a water district and its members – when the action requires construction of a reclamation contract and joinder of the United States is necessary. It does not permit a plaintiff to sue the United States alone.
...The statute does not waive immunity from suits directly against the United States, as opposed to joinder of the United States as a necessary party defendant to permit a complete adjudication of rights under a reclamation contract.
CAWCD argues that its crossclaim is not a direct suit against the United States and therefore is not covered by the holding in Orf. Doc. 80 at 5. Noting that it has brought the crossclaim against the United States under Rule 13(g) of the Federal Rules of Civil Procedure, CAWCD argues that “crossclaims do not require an independent basis of jurisdiction if the crossclaim satisfies the test for ancillary jurisdiction.” Id. But the authorities cited by CAWCD in support of this argument do not address sovereign immunity. See Cam-Ful Indus., Inc. v. Fid. & Deposit Co. of Md., 922 F.2d 156, 160 (2d Cir. 1991); Transamerica Life Ins. Co. v. Rabadi, No. CV 15-07623-RSWL-EX, 2017 WL 3184168, at *8 (C.D. Cal. July 24, 2017). They instead apply the well-recognized doctrine of ancillary jurisdiction, which holds that federal courts may exercise jurisdiction over nonfederal claims if they arise out of the same facts as federal claims in the same lawsuit. This doctrine, which is a matter of “judicial economy, convenience and fairness to litigants,” Cam-Ful, 922 F.2d at 160, says nothing about a waiver of sovereign immunity. And the Ninth Circuit clearly has held that the modern version of ancillary jurisdiction, found in 28 U.S.C. § 1367, does not waive sovereign immunity. Dunn & Black v. United States, 492 F.3d 1084, 1088 n.3 (9th Cir. 2007) (“§ 1367 merely grants federal courts supplemental jurisdiction over state claims related to certain federal claims” and “cannot operate as a waiver of the United States’ sovereign immunity[.]”) (citation omitted).
CAWCD also cites the second sentence of § 399uu, which provides that “[t]he United States, when a party to any suit, shall be deemed to have waived any right to plead that it is not amenable thereto by reason of its sovereignty, and shall be subject to judgments, orders, and decrees of the court having jurisdiction[.]” CAWCD seems to suggest that once the United States has been joined as a defendant under Rule 19, this sentence waives sovereign immunity with respect to crossclaims. Doc. 80 at 4. But CAWCD cites no authority for this argument and the Court finds it inconsistent with the demand that a waiver of sovereign immunity “be unequivocally expressed in statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996); Jachetta v. United States, 653 F.3d 898, 903 (9th Cir. 2011). The sentence cited by CAWCD more naturally means that the United States cannot assert sovereign immunity against the plaintiff once it has been joined as a defendant in a lawsuit. It does not clearly state that the United States has waived its sovereign immunity with respect to any and all crossclaims.
Finally, CAWCD asserts that because the United States was successfully joined as a defendant in this suit, it “cannot be a party for some purposes...but not for others (being subject to CAWCD’s claims).” Doc. 80 at 5. In support, CAWCD cites Terry v. Newell, No. CV-12-02659-PHX-DGC, 2014 U.S. Dist. LEXIS 92408 (D. Ariz. July 8, 2014), but Terry held that certain claims were barred by sovereign immunity despite the fact that the United States had entered the case. Id. at *6-8. And although the Court addressed the meaning of “coparty” under Rule 13(g) with respect to other crossclaims, it did so only to decide whether the crossclaims fell within an exception to the exhaustion requirement in the Federal Tort Claims Act. Id. at *8-13. The Court did not consider § 399uu and its limited waiver of sovereign immunity.
CAWCD’s crossclaim is brought directly against the United States. It is the same claim CAWCD would assert in a stand-alone lawsuit against the government, and, under Rule 13(g), is expressly brought “against” the United States. See Fed. R. Civ. P. 13(g). The crossclaim does not fall within § 399uu’s limited waiver of sovereign immunity. Orf, 545 U.S. at 601-02.
The Tucker Act gives the Court of Federal Claims jurisdiction over “any claim against the United States founded...upon any express or implied contract with the United States[.]” 28 U.S.C. § 1491. The Tucker Act provides for an award of money damages, but “ ‘impliedly forbids’ declaratory and injunctive relief and precludes [an APA] § 702 waiver of sovereign immunity in suits on government contracts.” N. Side Lumber Co. v. Block, 753 F.2d 1482, 1485 (9th Cir. 1985); see Tucson Airport Auth., 136 F.3d at 646; Spectrum Leasing Corp. v. United States, 764 F.2d 891, 893 (D.C. Cir. 1985) (“It is clear from the APA’s legislative history that section 702’s waiver of sovereign immunity may not be used to circumvent the jurisdictional and remedial limitations of the Tucker Act.”). Thus, if CAWCD’s crossclaim is contractually based, sovereign immunity has not been waived by the APA and the Court lacks jurisdiction. See Tucson Airport Auth., 136 F.3d at 646 (citing N. Star Alaska v. United States, 14 F.3d 36, 37 (9th Cir. 1994) (“N. Star Alaska III”)).
Whether claims are contractually based for purposes of the Tucker Act “ ‘depends both on the source of the rights upon which the plaintiff bases its claims, and upon the type of relief sought (or appropriate).’ ” Doe v. Tenet, 329 F.3d 1135, 1141 (9th Cir. 2003) (quoting Megapulse v. Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982)), rev’d on other grounds, Tenet v. Doe, 544 U.S. 1 (2005); see N. Star Alaska III, 14 F.3d at 37 (adopting the Megapulse test). “The label that is attached to a claim is not conclusive.” Doe, 329 F.3d at 1141. The key question is whether the claim asserted “is at its essence a contract claim.” Megapulse, 672 F.2d at 968.
Allegations in the crossclaim make clear that this dispute is at its essence a contract dispute. The Court will quote relevant allegations.
“CAWCD delivers water on behalf of the United States, in accordance with the Operating Agreement between CAWCD and the United States.” Doc. 65 ¶ 5. The United States has entered into water agreements with various Arizona Indian tribes, and “the Operating Agreement obligates CAWCD, upon direction of the United States, to distribute the CAP water allocated in these agreements.” Id. ¶ 6.
Various statutes allocate “a total of 136,645 acre-feet of CAP water...for use by the Ak-Chin and the San Carlos Apache Tribe.” Id. ¶ 29. “On October 6, 2016, the United States submitted to CAWCD a 2017 CAP water order that exceeded the total of the 136,645 acre-feet identified for use by both tribes.” Id. ¶ 30. “The United States stated that § 2(b) Water ordered for Ak-Chin was to come ‘from any unused Indian contract water.’ ” Id. ¶ 31. “However, water that is not used under a CAP Indian contract or a CAP non-Indian subcontract is ‘Excess Water,’ as that term is defined in § 5(d)(1) of the 2007 CAP Repayment Stipulation[,]” id. ¶ 32, and “CAWCD has the ‘exclusive right in its discretion to sell or use all Excess Water for any authorized purpose of the CAP,’ ” id. ¶ 33. Pursuant to its discretionary authority under the Stipulation, CAWCD has established procedures for distributing Excess Water, and those procedures left no Excess Water to be distributed to Ak-Chin as requested by the United States. Id. ¶ 35-36. As a result, CAWCD had no obligation to deliver Excess Water to Ak-Chin, id. ¶ 37, and the “United States directive to CAWCD requiring CAWCD to provide such water constitutes a violation the CAP Repayment Stipulation, which CAWCD seeks to enforce through this action.” Id. ¶ 53.
To summarize, (1) the water the United States asked CAWCD to deliver to Ak-Chin in 2017 was Excess Water under various statutes and agreements; (2) CAWCD has exclusive authority to control Excess Water under the 2007 CAP Repayment Stipulation, which is a contract, see Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989) (“An agreement to settle a legal dispute is a contract and its enforceability is governed by familiar principles of contract law.”); (3) CAWCD, in the exercise of its discretionary authority under the Stipulation, allocated Excess Water to other users and had no obligation to deliver it to Ak-Chin; and (4) the United States order that it do so was a violation of the Stipulation. This claim is based on contract. The source of CAWCD’s alleged right to control Excess Water is a contract (the Stipulation), and the government’s request that it deliver Excess Water to Ak-Chin violated that contract.
Language used by CAWCD in the crossclaim removes all doubt. The crossclaim alleges that “this is a suit to adjudicate the contractual rights of contracting entities and the United States regarding contracts executed pursuant to Federal reclamation law, as pled more fully below.” Doc. 65 ¶ 15. It also alleges that “[t]his matter is a contractual dispute arising under contracts entered into pursuant to federal Reclamation laws[.]” Id. ¶ 41. For relief, the crossclaim seeks a declaration that “CAWCD is not obligated to fulfill a delivery request for § 2(b) Water out of Excess Water as defined in the CAP Repayment Stipulation.” Id. at 11. It also seeks an injunction barring the United States from requesting that CAWCD provide Excess Water to Ak-Chin. Id.
The United States’ 2017 CAP water order exceeded the total of the 136,645 acre feet identified for use by both the Ak-Chin and San Carlos Apache tribes, and included water deliveries to Ak-Chin without the Secretary providing a water supply to CAWCD to fulfill the request for § 2(b) Water from sources other than those denominated as Excess Water. In these and other respects, the United States’ 2017 CAP water order, and other associated actions, are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” within the meaning of the APA. 5 U.S.C. § 706(2)(A).
Id. ¶¶ 59-60 (citations omitted). As this language makes clear, the APA claim is based on the assertion that CAWCD has no obligation to provide Excess Water to Ak-Chin – an argument based on the 2007 CAP Repayment Stipulation, which is a contract. Jeff D., 899 F.2d at 759.
IT IS ORDERED that the United States’ motion to dismiss CAWCD’s crossclaim (Doc. 76) is granted.
Dated this 12th day of January, 2018.
The United States also argues that CAWCD’s claim is barred by the second prong, but the Court need not address this argument because the claim fails under the third.
The fact that the crossclaim seeks relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, does not change this result. CAWCD does not argue that the Declaratory Judgment Act waives sovereign immunity, and the Act “does not confer federal jurisdiction, but rather requires an ‘independent jurisdictional basis.’ ” See Countrywide Home Loans, Inc., v. Mortg. Guar. Ins. Corp., 642 F.3d 849, 854 (9th Cir. 2011).


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§ 46.10 Purpose of this part.
§ 46.20 How to use this part.
§ 46.100 Federal action subject to the procedural requirements of NEPA.
§ 46.105 Using a contractor to prepare environmental documents.
§ 46.110 Incorporating consensus-based management.
§ 46.115 Consideration of past actions in the analysis of cumulative effects.
§ 46.120 Using existing environmental analyses prepared pursuant to NEPA and the Council on Environmental Quality regulations.
§ 46.125 Incomplete or unavailable information.
§ 46.130 Mitigation measures in analyses.
§ 46.135 Incorporation of referenced documents into NEPA analysis.
§ 46.140 Using tiered documents.
§ 46.145 Using adaptive management.
§ 46.155 Consultation, coordination, and cooperation with other agencies.
§ 46.160 Limitations on actions during the NEPA analysis process.
§ 46.170 Environmental effects abroad of major Federal actions.
§ 46.200 Applying NEPA early.
§ 46.205 Actions categorically excluded from further NEPA review.
§ 46.210 Listing of Departmental categorical exclusions.
§ 46.215 Categorical exclusions: Extraordinary circumstances.
§ 46.220 How to designate lead agencies.
§ 46.225 How to select cooperating agencies.
§ 46.230 Role of cooperating agencies in the NEPA process.
§ 46.235 NEPA scoping process.
§ 46.240 Establishing time limits for the NEPA process.
§ 46.300 Purpose of an environmental assessment and when it must be prepared.
§ 46.305 Public involvement in the environmental assessment process.
§ 46.310 Contents of an environmental assessment.
§ 46.315 How to format an environmental assessment.
§ 46.320 Adopting environmental assessments prepared by another agency, entity, or person.
§ 46.325 Conclusion of the environmental assessment process.
§ 46.400 Timing of environmental impact statement development.
§ 46.405 Remaining within page limits.
§ 46.415 Environmental impact statement content, alternatives, circulation and filing requirements.
§ 46.420 Terms used in an environmental impact statement.
§ 46.425 Identification of the preferred alternative in an environmental impact statement.
§ 46.430 Environmental review and consultation requirements.
§ 46.440 Eliminating duplication with State and local procedures.
§ 46.445 Preparing a legislative environmental impact statement.
§ 46.450 Identifying the environmentally preferable alternative(s).
42 U.S.C. 4321 et seq. (The National Environmental Policy Act of 1969, as amended); Executive Order 11514, (Protection and Enhancement of Environmental Quality (March 5, 1970, as amended by Executive Order 11991, May 24, 1977)); 40 CFR parts 1500–1508 (43 FR 55978) (National Environmental Policy Act, Implementation of Procedural Provisions).


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1. A judgment of nonsuit is no bar to a new action, and of no weight as evidence at the trial of that action.
2. Pending an action in a court of the State of New York against a corporation established in that state by a widow, a citizen of New Jersey, upon a policy of insurance on the life of her husband, the plaintiff assigned the policy to a citizen of New York in trust for her benefit, and was afterwards nonsuited by order of the court. Upon a subsequent petition by the trustee to another court of the state to be relieved of his trust, a citizen of New Jersey was at her request appointed trustee in his stead. One object of this appointment was to enable a suit on the policy to be brought in the circuit court of the United States, which was afterwards brought accordingly. Held that the suit should not be dismissed under the act of 3d March, 1875, c. 137, c. 137, §§ 1, 5.
3. A self-killing by an insane person, understanding the physical nature and consequences of his act but not its moral aspect, is not a death by suicide, within the meaning of a condition in a policy of insurance upon his life that the policy shall be void in case he shall die by suicide, or by the hands of justice or in consequence of a duel or of the violation of any law.
The main facts in this case are stated in the opinion of the Court. For the purposes of the reported argument below, it is sufficient to say that the plaintiffs in error insured the life of one Ferguson for $10,000, payable to his wife in ninety days after proof of his death; that the policy was to be void if Ferguson should die by suicide; that Ferguson hanged himself; that suit was brought in the Court of Common Pleas of the City of New York by the widow to recover on the policy, in which, under a ruling of the court, the plaintiff became nonsuited; that the claim, after commencement of suit and before nonsuit, was assigned to a trustee, a citizen of New York, to secure a debt; and that after nonsuit, the trustee was removed by amicable judicial proceedings, and the defendant in error, a citizen of New Jersey, substituted, the object being to have this suit brought.
"in case he shall die by suicide, or by the hands of justice, or in consequence of a duel, or of the violation of any law of these states, or of the United States"
in the City of New York on the 14th of August, 1876, and that presently afterwards his widow and family removed to Redbank, in the State of New Jersey, and had since had their home there. He also introduced a deed dated the 10th of February, 1877, by which Mrs. Ferguson assigned the policy to John G. Nestell, of New York, in trust, to pay a claim for $2,000, and the necessary expenses of collecting the amount of the policy, and to invest the surplus for her benefit, and a record of the supreme court of New York showing that in May, 1879, in a suit brought by Nestell against Mrs. Ferguson to be relieved of his trust, Broughton, the plaintiff, was, upon her request, substituted as trustee in Nestell's stead. There was evidence tending to show that one object in having Broughton appointed was that a suit could be brought in his name in the United States court.
"Motion for nonsuit granted, and complaint dismissed; allowance, one hundred and fifty dollars to defendant, if further litigation be carried on by plaintiff."
The defendant requested the circuit court to direct a verdict for the defendant, because the former judgment was a bar, and afterwards objected to the introduction by the plaintiff of evidence of the condition of Ferguson's mind at the time of his death, because that question had been tried and determined in the former action. The court rightly denied the request and overruled the objection. A judgment of nonsuit does not determine the rights of the parties, and is no bar to a new action.
Homer v. Brown, 16 How. 354. A trial upon which nothing was determined cannot support a plea of res adjudicata or have any weight as evidence at another trial.
The defendant, at the close of the plaintiff's evidence in chief and again at the close of all of the evidence in the case, moved to dismiss the action for want of jurisdiction because Broughton had only a nominal interest, and the real controversy was between citizens of New York, and the at the argument in this Court contended that the action should be dismissed because the evidence showed that the plaintiff was made trustee for the purpose of bringing an action in the United States court after Mrs. Ferguson had failed to recover in the state court, under the rule established by the recent decisions of the Court of Appeals in Van Zandt v. Mutual Benefit Ins. Co., 55 N.Y. 169, and Weed v. Same, 70 N.Y. 561.
plaintiff for the purpose of creating a case cognizable by that court. T he question involved was not a question of local law, but of general jurisprudence, upon which Mrs. Ferguson, and Broughton, as her trustee, had a right to seek the independent judgment of a federal court. Railroad Co. v. Lockwood, 17 Wall. 357, 84 U. S. 368; Michigan Central Railroad v. Myrick, 107 U. S. 102; Burgess v. Seligman, 107 U. S. 20.
Several minor points suggested at the argument hardly present any question of law.
The interrogatories put by the counsel for the plaintiff to the expert called by the defendants were clearly admissible on cross-examination for the purpose of testing the knowledge and accuracy of the witness, and require no special consideration.
The instruction requested, that "the only legal test of insanity is delusion," was in direct contradiction of the testimony of the experts called on each side, and could not properly be given as a rule of law.
The court rightly refused to direct a verdict for the defendant on the ground that there was no sufficient evidence to show that Ferguson was insane or to render the defendant liable upon its contract. Without undertaking to recapitulate the evidence, it is sufficient to say that members of his family and persons well acquainted with him in his business testified that he was naturally of a lively, cheerful, sanguine disposition; that in 1874 he met with heavy losses in business, and his son died suddenly by falling from a window; that from that time forward there was a marked change in his demeanor; "he was always walking with his head bowed down, and a gloomy expression, and the entire vitality and cheerfulness which the man had before was gone;" "he was gloomy, dull, mopish;" "he sat down in the office and moaned and would be gloomy there;" "he always complained of his head; he would say, The trouble is here; it is all in my head, my head;'" that shortly before his death, he had "a vacant expression in his face;" "he had a queer expression about his eyes; it was a sort of wild, unnatural expression;" "that kind of expression which the human face takes on when one is frightened; a far-off, glassy look, as though the mind was dwelling on nothing;"
"he was very much changed, and was very excitable; he looked different, and had a wild expression; he staid a great deal by himself when he came home from business; he would go to his room and lie on his bed with his hat and overcoat on, and not come out to his meals."
The experts called for the plaintiff testified that Ferguson was suffering from that kind of unsoundness of mind which they termed melancholia. There was clearly some evidence of insanity for the jury, and the question of its weight was for them, and not for the court. Insurance Co. v. Rodel, 95 U. S. 232.
to take his own life because, in the exercise of his usual reasoning faculties, he preferred death to life, then the company is not liable, because he died by his own hand within the meaning of the policy."
15 Wall. 82 U. S. 582.
"We hold the rule on the question before us to be this: if the assured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches and there can be no recovery. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that he is not able to understand the moral character, the general nature, consequences, and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse, which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable."
Pp. 82 U. S. 590-591.
"This charge is in the very words of the charge sanctioned and approved by this Court in the case of Life Insurance Company v. Terry, 15 Wall. 580, including an explanatory clause of the opinion of the Court in that case. We see no reason to modify the views expressed by us on that occasion."
95 U.S. 95 U. S. 241.
The policies in the cases of Terry and of Rodel used the words "die by his own hand," instead of which the policy before us has the words "die by suicide." But, for the purposes of this contract, as was observed in Terry's Case, 15 Wall. 82 U. S. 591, the two expressions are equivalent.
"that if Israel Ferguson died by suicide, the plaintiff cannot recover unless he has proved to your satisfaction that such act of self-destruction was not Ferguson's voluntary and willful act; that he had not at the time sufficient power of mind and reason to understand the physical nature and consequences of such act, and did not have at the time, a purpose and intention to cause his own death by the act; . . . that unless the evidence established that Israel Ferguson did not commit suicide consciously and voluntarily, the plaintiff cannot recover,"
and "that if he thus committed it, it is immaterial whether he was capable of understanding its moral aspects or of distinguishing between right and wrong."
very fairly urged, afford quite strong evidence that at the time of his death he was in the full possession of his mental faculties. A serious question, gentlemen, which you will ask yourselves in this case, it seems to me, is this: had he, in view of his misfortunes and of the probable future that awaited him, deliberately come to the conclusion that it was better to die them to live, and did he in that view commit suicide, or was he so far mentally unsound that he could not exercise a rational judgment upon the question of life and death? Did he become oblivious to the duties which he owed to his family, to his friends, and to himself? Was he impelled by a morbid impulse which he had not sufficient strength of will to resist, and, acting under the influence of this insane impulse, did he determine to take his own life? Because, if his reasoning faculties were so far impaired that he could not fairly estimate the moral consequences, the moral complexion of the act, even though he could reason sufficiently well to prepare with great deliberation, and to execute his design with success, nevertheless, within the authority which I have read, he was so far insane that the plaintiff is entitled to recover on this policy."
These instructions are in exact accordance with the adjudications in the cases of Terry and Rodel, and upon consideration, we are unanimously of opinion that the rule so established is sounder in principle, as well as simpler in application, than that which makes the effect of the act of self-destruction, upon the interests of those for whose benefit the policy was made, to depend upon the very subtle and difficult question how far any exercise of the will can be attributed to a man who is so unsound of mind that, while he foresees the physical consequences which will directly result from his act, he cannot understand its moral nature and character, or in any just sense be said to know what it is that he is doing.
legally, also (and the policy should be subjected to this test), self-destruction by a fellow being bereft of reason can with no more propriety be ascribed to his own hand than to the deadly instrument that may have been used for the purpose,"
and, whether it was by drowning, or poisoning, or hanging, or in any other manner, "was no more his act, in the sense of the law, than if he had been impelled by irresistible physical power." Breasted v. Farmers' Trust & Loan Co., 4 Hill 73, 75.
* Borradaile v. Hunter, 5 Man. & Gr. 639; S.C. 5 Scott N.R. 418; Dormay v. Borradaile, 10 Beavan 335; Schwabe v. Clift, 2 Car. & K. 134, and C.B. 437; Stormont v. Waterloo Ins. Co., 1 F. & F. 22; Dufaur v. Professional Ins. Co., 25 Beavan 599, 602; Solicitors' Assurance Society v. Lamb, 1 Hem. & Mil. 716, and 2 D.G.J. & S. 251; Breasted v. Farmers' Trust & Loan Co., 4 Hill 73, and 8 N.Y. 299; Dean v. American Ins. Co., 4 Allen 96; Cooper v. Massachusetts Ins. Co., 102 Mass. 227; Eastabrook v. Union Ins. Co., 54 Me. 224; Gove v. Farmers' Ins. Co., 48 N.H. 41; St. Louis Ins. Co. v. Graves, 6 Bush 268; Nimick v. Mutual Life Ins. Co., 10 Amer.Law.Reg. (N.S.) 101; Gay v. Union Ins. Co., 9 Blatchf.C.C. 142; Terry v. Life Ins. Co., 1 Dillon 403.

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