§ 38.2-2204 Liability insurance on motor vehicles, aircraft . . .
A. No policy or contract of bodily injury or property damage liability insurance, covering liability arising from the ownership, maintenance, or use of any motor vehicle, aircraft, or private pleasure watercraft, shall be issued or delivered in this Commonwealth to the owner of such vehicle, aircraft or watercraft, or shall be issued or delivered by any insurer licensed in this Commonwealth upon any motor vehicle, aircraft, or private pleasure watercraft that is principally garaged, docked, or used in this Commonwealth, unless the policy contains a provision insuring the named insured, and any other person using or responsible for the use of the motor vehicle, aircraft, or private pleasure watercraft with the expressed or implied consent of the named insured, against liability for death or injury sustained, or loss or damage incurred within the coverage of the policy or contract as a result of negligence in the operation or use of such vehicle, aircraft, or watercraft by the named insured or by any such person; however, nothing contained in this section shall be deemed to prohibit an insurer from limiting its liability under any one policy for bodily injury or property damage resulting from any one accident or occurrence to the liability limits for such coverage set forth in the policy for any such accident or occurrence or for any one person, regardless of the number of insureds under that policy. Provided that, when one accident or occurrence involves more than one defendant who is covered by the policy, the plaintiff may recover the per person limit of the policy against each such defendant, subject to the per accident or occurrence limit of the policy. Each such policy or contract of liability insurance, or endorsement to the policy or contract, insuring private passenger automobiles, aircraft, or private pleasure watercraft principally garaged, docked, or used in this Commonwealth, that has as the named insured an individual or husband and wife and that includes, with respect to any liability insurance provided by the policy, contract or endorsement for use of a nonowned automobile, aircraft or private pleasure watercraft, any provision requiring permission or consent of the owner of such automobile, aircraft, or private pleasure watercraft for the insurance to apply, shall be construed to include permission or consent of the custodian in the provision requiring permission or consent of the owner.
B. Notwithstanding any requirements in this section to the contrary, an insurer may exclude any person from coverage under a personal umbrella or excess policy, if the exclusion is requested in writing by the first named insured and is acknowledged in writing by the excluded driver.
C. For aircraft liability insurance, such policy or contract may contain the exclusions listed in § 38.2-2227. Notwithstanding the provisions of this section or any other provisions of law, no policy or contract shall require pilot experience greater than that prescribed by the Federal Aviation Administration, except for pilots operating air taxis, or pilots operating aircraft applying chemicals, seed, or fertilizer.
D. No policy or contract of bodily injury or property damage liability insurance relating to the ownership, maintenance, or use of a motor vehicle shall be issued or delivered in this Commonwealth to the owner of such vehicle or shall be issued or delivered by an insurer licensed in this Commonwealth upon any motor vehicle principally garaged or used in this Commonwealth without an endorsement or provision insuring the named insured, and any other person using or responsible for the use of the motor vehicle with the expressed or implied consent of the named insured, against liability for death or injury sustained, or loss or damage incurred within the coverage of the policy or contract as a result of negligence in the operation or use of the motor vehicle by the named insured or by any other such person; however, nothing contained in this section shall be deemed to prohibit an insurer from limiting its liability under any one policy for bodily injury or property damage resulting from any one accident or occurrence to the liability limits for such coverage set forth in the policy for any such accident or occurrence or for any one person regardless of the number of insureds under that policy. Provided that, when one accident or occurrence involves more than one defendant who is covered by the policy, the plaintiff may recover the per person limit of the policy against each such defendant, subject to the per accident or occurrence limit of the policy. This provision shall apply notwithstanding the failure or refusal of the named insured or such other person to cooperate with the insurer under the terms of the policy. If the failure or refusal to cooperate prejudices the insurer in the defense of an action for damages arising from the operation or use of such insured motor vehicle, then the endorsement or provision shall be void. If an insurer has actual notice of a motion for judgment or complaint having been served on an insured, the mere failure of the insured to turn the motion or complaint over to the insurer shall not be a defense to the insurer, nor void the endorsement or provision, nor in any way relieve the insurer of its obligations to the insured, provided the insured otherwise cooperates and in no way prejudices the insurer.Where the insurer has elected to provide a defense to its insured under such circumstances and files responsive pleadings in the name of its insured, the insured shall not be subject to sanctions for failure to comply with discovery pursuant to Part Four of the Rules of the Supreme Court of Virginia unless it can be shown that the suit papers actually reached the insured, and that the insurer has failed after exercising due diligence to locate its insured, and as long as the insurer provides such information in response to discovery as it can without the assistance of the insured.
E. Any endorsement, provision or rider attached to or included in any such policy of insurance which purports or seeks to limit or reduce the coverage afforded by the provisions required by this section shall be void, except an insurer may exclude such coverage as is afforded by this section, where such coverage would inure to the benefit of the United States Government or any agency or subdivision thereof under the provisions of the Federal Tort Claims Act, the Federal Drivers Act and Public Law 86-654 District of Columbia Employee Non-Liability Act, or to the benefit of the Commonwealth under the provisions of the Virginia Tort Claims Act (§ 8.01-195.1 et seq.) and the self-insurance plan established by the Department of General Services pursuant to § 2.2-1837 for any state employee who, in the regular course of his employment, transports patients in his own personal vehicle.
Code 1950, § 38-238; 1952, c. 317, § 38.1-381; 1958, c. 282; 1959, Ex. Sess., cc. 42, 70; 1970, c. 462; 1962, c. 457; 1964, c. 477; 1966, cc. 182, 459; 1968, cc. 199, 721; 1970, c. 494; 1971, Ex. Sess., c. 216; 1973, cc. 225, 390; 1974, c. 87; 1976, cc. 121, 122; 1977, c. 78; 1979, c. 113; 1980, cc. 326, 331; 1981, Sp. Sess., c. 6; 1982, cc. 638, 642; 1984, c. 541; 1985, cc. 39, 325; 1986, cc. 544, 562; 1992, c. 140; 1995, c. 652; 1999, c. 4; 2003, cc. 756, 761; 2005, c. 771.
If you’re reading this for anything important, you should double-check its accuracy—read § 38.2-2204 on the official Code of Virginia website.
. . . Justice. . . .
. . . relating to the omnibus clause found in Code § 38.2-2204(A), which deals with liability insurance . . .
. . . omnibus insurance coverage required under Code § 38.2-2204. . . .
. . . raises these issues: . . .
. . . must be construed in accordance with Va.Code § 38.2-2204 A. The Code provides that each automobile . . .
. . . failed to limit its liability pursuant to [Code] § 38.2-2204. . . .
. . . that the rental contract conflicts with Code § 38.2-2204, the omnibus clause, because subsection D . . .
. . . that each is void under subparagraph D of Code § 38.2-2204, the "omnibus statute"; and, in . . .
. . . the insurer to rely on such breach. See Code § 38.2-2204(C). Likewise, the General Assembly has . . .
. . . enacting § 38.2-2204 D as the Virginia Supreme Court recognized in Southside. . . .


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*309 Jonathan E. Lyerly, Birmingham, for petitioner.
L. Stephen Wright, Jr., John C. Falkenberry, and Jesse P. Evans III of Najjar Denaburg, P.C., Birmingham, for respondent.
Patricia Elliott (the "wife") sued for a divorce from Stephen Elliott (the "husband"). The Jefferson Circuit Court granted the divorce, and, among other things, divided the marital property and awarded the husband $500 a month in periodic alimony. The Court of Civil Appeals, among other things, reversed the trial court's division of marital property and its award of alimony, holding that the trial court had abused its discretion with respect to these issues. Elliott v. Elliott, 782 So. 2d 303 (Ala.Civ.App.1999). We reverse and remand.
The husband and the wife married in September 1973. Their marriage produced three children: two sons, one born in January 1980 and one born in December 1980; and one daughter, born in February 1983.
In December 1996, the wife sued for a divorce, alleging incompatibility and an irretrievable breakdown of the marriage as grounds for a divorce. The husband counterclaimed, also alleging an incompatibility of temperament and an irretrievable breakdown of the marriage as grounds for a divorce. There were no allegations of, or evidence of, misconduct on the part of either party that might have led to the divorce action.
The evidence presented to the circuit court indicated that at the time of the trial the husband was 51 years of age and had several health problems. He had no college degree, had worked sporadically in the construction industry, and had an annual income of approximately $50,000. The husband's assets consisted of an automobile, on which he was making payments; $7,500 in an IRA account; and some equipment valued at between $5,000 and $7,500.
The wife is a college graduate. She has been employed by Blue Cross/Blue Shield of Alabama for more than 20 years, and at the time of trial, she was earning an annual income of $106,000. The wife has a 401(k) account through her employer, with an approximate value of $169,000, and a deferred-benefit plan with an approximate value of $109,300. The wife also owns a car, on which she is making payments.
The parties purchased the marital residence in 1987, and it has an appraised value of $185,000. The house secures two mortgage debts: the balance of the first-mortgage debt is approximately $100,000, and the balance of the second-mortgage debt is approximately $28,000.
At the time of trial, the parties' children were 18, 17, and 15 years old, and the 18 year old was planning to attend the University of Mississippi. Two of the children have automobiles; one is titled in the husband's name, and the other is titled in the names of both the husband and the wife.
After conducting an ore tenus hearing, the circuit court issued a final judgment of divorce, awarding custody of the minor children to the husband, with visitation rights to the wife, and ordering the wife to pay the husband $1,700 per month in child support and $500 per month in periodic alimony. The circuit court divided the marital property and assigned the husband and the wife responsibility for certain debts. The circuit court awarded the couple's home to the husband and assigned him the responsibility of paying the debts secured by the first and second mortgages. Additionally, the circuit court awarded the husband a one-half interest in the wife's 401(k) fund; in her 401(k) employer-matching fund; and in her deferred-benefit plan with her employer. The circuit court also awarded the wife her automobile, the funds in her checking and savings accounts, her stocks and bonds, the funds in her IRA accounts, and her personal items, including jewelry and clothing. The court ordered the husband to pay the indebtedness on his car and to pay certain credit-card debts.
The wife appealed, arguing that the circuit court abused its discretion in awarding custody of the parties' children to the husband, in calculating the wife's child-support obligation, in dividing the marital property and debts, and in awarding periodic alimony to the husband. A divided Court of Civil Appeals affirmed in part, reversed in part, and remanded. See Elliott v. Elliott, supra. Specifically, the Court of Civil Appeals affirmed that part *311 of the circuit court's judgment awarding custody of the minor children to the husband and reversed those parts of the judgment awarding child support and alimony and dividing the marital property and debts. The court held that the award of child support was not supported by the evidence because, it said, there was no evidence as to the reasonable and necessary needs of the children. Thus, the court concluded that it could not "tell if the child-support award is sufficient, insufficient, or even necessary." Id. at 306. The court further held "that the [circuit] court abused its discretion in its award of alimony and its division of the marital property." Id. at 307. Because it "reversed those portions of the judgment awarding alimony and dividing the marital property, [the court] also remand[ed] those portions of the judgment dividing the marital debts so that the [circuit] court [would] have available all components in order to fashion an equitable division between the parties." Id. at 307.
The husband argues that the Court of Civil Appeals erred in reversing those portions of the circuit court's judgment awarding alimony and dividing the marital property. "In reviewing the [circuit] court's judgment in a divorce case presented ore tenus, we will presume the judgment to be correct...." Ex parte Jackson, 567 So. 2d 867, 868 (Ala.1990). Furthermore, rulings on such matters as child support, alimony, division of marital property, and payment of marital debts are within the discretion of the circuit court. See id. Thus, a circuit court's divorce judgment, including its rulings on these matters, will not be reversed unless it is so unsupported by the evidence that it is plainly and palpably wrong and a clear abuse of discretion. See Ex parte Smith, 673 So. 2d 420, 421 (Ala.1995); Ex parte Jackson, 567 So. 2d at 868; see also Hartselle v. Hartselle, 475 So. 2d 860, 861 (Ala. Civ.App.1985) ("The cases are legion which hold that matters in divorce cases, such as the division of property and child custody, are subjects that fall within the sound judicial discretion of the [circuit] court."). Moreover, an appellate court reviewing a circuit court's judgment in a divorce action is not to substitute its judgment of the facts for that of the circuit court. See Ex parte Smith, 673 So. 2d at 422. Instead, the appellate court is "simply to determine if there was sufficient evidence before the circuit court to support its decision against a charge of arbitrariness and abuse of discretion." Id.
A court has no fixed standard to follow in awarding alimony or in dividing marital property. Rather, the award or division need only be equitable and be supported by the particular facts of the case. See Antepenko v. Antepenko, 549 So. 2d 1357, 1359 (Ala.Civ.App.1989); Hutchinson v. Hutchinson, 474 So. 2d 104, 105 (Ala.Civ.App.1985); Nowell v. Nowell, 474 So. 2d 1128, 1129-30 (Ala.Civ.App. 1985). "[T]he [circuit] court should consider several factors, including the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage."Nowell, *312 474 So. 2d at 1129; accord Antepenko, 549 So. 2d at 1359 (listing the same factors, but adding another: "the parties' potential for maintaining [their] standard of living after the divorce"). Moreover, "[i]t has long been recognized in Alabama that the primary purposes of periodic alimony are: (1) to preserve the economic status of the parties that existed during the marriage; and (2) to provide support to the dependent former spouse." Kahn v. Kahn, 682 So. 2d 1377, 1380 (Ala.Civ.App.1996) (emphasis added) (citations omitted).
The Court of Civil Appeals examined this issue and summarily stated: "We have reviewed the record, and, under the circumstances of this case, we conclude that the [circuit] court abused its discretion in its award of alimony and its division of marital property." Elliott, 782 So. 2d at 307. We disagree. The husband and the wife were married for 25 years. Comparing the husband's age and poor health; his lack of a college degree; his less-than-certain future-employment prospects, given his sporadic work history; his expected income of $50,000 per year; and his custody of the three children, to the wife's education, future-employment prospects, and expected income of more than $100,000 per year, we cannot say the circuit court abused its discretion in its award of periodic alimony or in its division of the marital property. Thus, we must conclude that the Court of Civil Appeals impermissibly "substitute[d] its judgment of the facts for that of the circuit court." Ex parte Smith, 673 So. 2d at 422.
The Court of Civil Appeals erred in reversing the circuit court's award of alimony and its division of the marital property. Accordingly, we reverse the judgment of the Court of Civil Appeals insofar as it relates to those two items and remand the case for the Court of Civil Appeals to enter an order consistent with this opinion.
HOOPER, C.J., and MADDOX, HOUSTON, COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.
 The husband does not challenge the Court of Civil Appeals' reversal of the trial court's award of child support. The wife did not seek certiorari review of that portion of the Court of Civil Appeals' judgment affirming the trial court's award of custody. Accordingly, we express no opinion as to the judgment of the Court of Civil Appeals on these issues.
 Although the trial court can, in appropriate situations, consider the conduct of the parties in causing the divorce, see Antepenko v. Antepenko, 549 So. 2d 1357, 1359 (Ala.Civ.App. 1989), this factor is irrelevant in this case because the parties presented no evidence suggesting that any misconduct led to the breakdown of the marriage.

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Eileen is a partner in the Los Angeles office, and co-chair of the firm’s class action litigation practice group, as well as a member of the product liability and appellate practice groups.
Eileen specializes in defending California and nationwide consumer class actions alleging violations of California’s Unfair Competition and False Advertising Laws, and other consumer claims.
She also has significant experience litigating a wide range of other complex commercial matters, and has represented clients in a cross-section of industries, including consumer products, technology, telecommunications, financial services, utilities, and automotive.
Eileen brings substantial experience to all aspects of complex litigation and class actions, with a particular focus on strategy issues, critical early motions seeking dismissal or to compel arbitration, as well as positioning for victory in opposing class certification. She also has negotiated settlements in high-stakes class actions on terms very favorable to her clients.
Eileen was named by Benchmark Litigation as a 2018 and 2019 "Litigation Star," and as one of the "Top Women Attorneys in Southern California" 2013-2017 by Super Lawyers. Eileen was recognized in 2015 for securing one of the "Top 20 Defense Verdicts" by the Daily Journal (read more here), and her recent victories include a 2016 defeat of a class certification motion in a high-stakes consumer class action, as well as a successful 2017 motion to dismiss on forum non conveniens grounds, which has potentially case-dispositive implications for the parties in a product liability action alleging permanent, catastrophic injuries.
Before joining Willenken in 2008, Eileen practiced at Gibson, Dunn & Crutcher LLP for six years. She received her J.D. from Columbia Law School in 2001.
Eileen also dedicates herself to pro bono work, and has worked on matters with both Public Counsel and the Legal Aid Foundation of Los Angeles.
Confidential Matter. Eileen was a member of the firm’s two-person team that prevailed in an arbitration defending one of the world’s leading hotel companies against a claim brought by the hotel owner, in which tens of millions of dollars potentially were at stake. The arbitrator ruled in favor of the firm’s client on all issues and, on her own initiative, also awarded the firm’s client its attorneys’ fees and costs, which were discretionary under the parties’ agreement.
Gossoo v. Microsoft. Eileen and partner William Delgado defeated class certification in a putative consumer class action alleging violation of the Song-Beverly Credit Card Act based upon the alleged illegal collection of personally identifiable information (“PII”) from consumers in brick-and-mortar stores – even in the wake of scores of retailers settling these claims on a class-wide basis across California.
Luko v. Ticketmaster. After a trip to the California Supreme Court sparring over a quickly-developing area of law in a putative consumer class action alleging violation of the Song-Beverly Credit Card Act, Eileen and firm partner William Delgado secured judgment on the pleadings in Ticketmaster’s favor without leave to amend, which was named one of the "Top 20 Defense Verdicts in the state of California in 2014" by the Daily Journal.
Reed v. NBTY et al. Eileen and partner Will Delgado secured summary judgment in favor of dietary supplement manufacturer defendants in a class action alleging violations of Cal. Bus. & Prof. Code 17200, Cal. Bus. & Prof. Code 17500, and Cal. Civ. Code 1750 in connection with work-out supplements.
Chait v. Harbor Freight Tools. Eileen defeated a class certification motion in a putative class action in which the plaintiff alleged violations of the Song-Beverly Credit Card Act. The court was persuaded by Harbor Freight’s interpretation of the Act, and denied certification.
Haley v. The Procter & Gamble Company. Eileen and firm partner Paul Loh defended Procter & Gamble in a putative class action, in which the plaintiff alleged product liability, warranty, and violation of the Consumer Legal Remedies Act (“CLRA”) claims. After eliciting significant admissions from plaintiff and key witnesses at depositions, plaintiff agreed to an individual settlement on terms very favorable to Procter & Gamble.
Syntellect, Inc. v. Southern California Gas Co. After prevailing on a motion for summary adjudication of liability, which the Ninth Circuit affirmed, Eileen and firm partner Jason Wilson, on behalf of the country's largest gas distribution utility, secured a $9.4 million judgment in a patent infringement indemnity action.
Webceleb v. Procter & Gamble. Eileen and firm partner Paul Loh successfully defended Procter & Gamble in a trademark infringement action stemming from its popular People’s Choice Award Show. P&G prevailed on summary judgment, and the Ninth Circuit affirmed.
Enniss v. Warlock Powerboats, Inc. Eileen, on behalf of KeyBank, N.A., obtained summary judgment in the bank’s favor on claims for alleged violation of the Song-Beverly Consumer Warranty Act.
The Education Resources Institute v. Curtis. Eileen and firm Associate Rebecca Green defended KeyBank, N.A. against claims of fraud, breach of contract, and negligence. They prevailed on a demurrer, resulting in all of the claims being dismissed with prejudice.

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EPA and the U.S. Army Corps of Engineers (the Corps) are again attempting to expand their jurisdiction over wetlands and other ancillary waters. The move comes after years of debate, studies, and trips up and down the federal court system. In this most recent chapter, the agencies issued for public comment a joint proposed rule that would, if enacted, expand the agencies’ Clean Water Act (CWA or Act) jurisdiction over permits to dredge and fill wetlands and other waters under CWA §404 and to discharge pollutants to surface waters under CWA §402 (NPDES). The proposed rule relies on a 331-page draft scientific report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence that the EPA’s Science Advisory Board released for public comment in September 2013. The agencies are using the draft Report as the scientific basis for the policy decisions expressed in the jurisdictional rule.
The proposed rule embodies the agencies’ current views on the reach of the CWA in light of the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)and Rapanos v. United States (Rapanos). The rule will supersede a 2003 “Joint Memorandum” providing clarifying guidance on SWANCC, and a 2008 Joint Guidance memo issued after the U.S. Supreme Court’s Decision in Rapanos v. United States, (collectively “Existing Guidance”). The proposed rule has the potential to expand categorical federal CWA jurisdiction over millions of acres of private property, and is certain to face legal challenges. If adopted, the rule will likely increase costs and regulatory burdens on business in the development, industrial, manufacturing, retail, energy, and mining sectors, and on private and public landowners, state and local government, and even federal government by expanding the types of water bodies that require CWA permits. The proposed rule would also increase the set of properties subject to risk of regulatory enforcement by EPA, the Corps, their state counterparts, or – under the CWA’s robust citizen suit provisions – non-governmental organizations.
In September 2013, the agencies had sent the proposed rule to the Office of Management and Budget (OMB) for review and simultaneously withdrew the proposed but never finalized 2011 Guidance, which can be read here. For more on the 2011 Guidance, see J. Kray, EPA/Corps Release Draft Guidance in Bid to Expand Federal Jurisdiction Over Wetlands, Marten Law Environmental News (May 4, 2011). The agencies’ decision to issue the 2011 Guidance instead of immediately initiating rulemaking was strongly criticized by members of Congress and representatives from both industry and environmental interest groups. The agencies’ new Connectivity Report and the proposed rule are, in part, responses to that criticism.
The Connectivity Report EPA issued in September 2013 summarizes the agency’s science on physical, chemical, and biological connections between upland streams and wetlands and water bodies recognized as “traditional navigable waters.” The Report was prepared to provide a basis for determining which wetlands and water bodies are categorically – rather than on a case-by-case basis – within EPA and Corps jurisdiction.
Prior to public release, the draft Connectivity Report was reviewed by “peers”, including federal government employees from the U.S. Department of Agriculture and U.S. Geological Survey, academics from universities around the country, employees of an environmental consulting firm (TetraTech), and two non-profits (the Stroud Water Research Center and the Nature Conservancy). EPA’s Scientific Advisory Board (“SAB”) is now performing a mandatory quality review. EPA is also accepting public comments on the draft Report. EPA has not established a closing date for public comments but will do so at some future point by publishing notice in the federal register.
The Connectivity Report’s conclusions will, if enacted into law by the proposed rule, have the effect of establishing categorical federal jurisdiction over tributary systems, riparian areas, and floodplains, allowing the agencies to establish jurisdiction over such water bodies without conducting a case-by-case analysis.
The proposed rule addresses the scope of the CWA’s key term “waters of the United States” for allCWA provisions that use the term, including the Section 402 National Pollutant Discharge Elimination System (NPDES) permit program, the Section 311 oil spill program, the water quality standards and total maximum daily load programs under Section 303, and the Section 401 State water quality certification process. The Existing Guidance was limited on its face to CWA Section 404 determinations.
Like the formerly proposed 2011 Guidance – and different from the Existing Guidance – the proposed rule would significantly expand the scope of categorical federal agency jurisdiction under the CWA. The most significant departure from the Existing Guidance is the heightened emphasis placed on Justice Kennedy’s “significant nexus” test for determining CWA jurisdiction. The Rapanos decision advanced two different standards for determining federal jurisdiction under the CWA – Justice Scalia’s “continuous surface connection” standard and Justice Kennedy’s “significant nexus” standard – and the Existing Guidance said that the agencies would use both standards.
One purpose of the proposed rule is to reduce the use of the Corps’ Wetlands Delineation Manual. The 1987 Manual and more recent Regional Supplements are tools the agencies have used for several decades to determine whether water bodies are subject to CWA jurisdiction on a case-by-case basis.
One of the more contentious areas of determining CWA jurisdiction has involved what are described as “other waters” in the EPA’s and the Corps’ regulations. These waters include, among other things, “mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows” and were specifically at issue in the Supreme Court’s decision in SWANCC, in which the court held that Corps jurisdiction does not extend to isolated, abandoned sand and gravel pits with seasonal ponds. A notable point of departure that the proposed rule makes from the Existing Guidance has to do with determining CWA jurisdiction over non-navigable tributaries of traditional navigable waters.
All “tributaries”, including any water (wetlands, lakes, and ponds) that contribute flow, either directly or through another water, to downstream traditional navigable waters, interstate waters, or territorial seas.
All waters “adjacent” to such tributaries. The proposed rule broadly defines “adjacent” to include all waters located within the “riparian area” or “floodplain” of otherwise jurisdictional waters, including waters with shallow subsurface hydrologic connection or confined surface hydrologic connection to jurisdictional water.
Ditches excavated wholly in/only draining uplands, and less than perennial flow.
Ditches that do not contribute flow, either directly or through another water, to traditional navigable waters, interstate waters, or the territorial seas.
Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for stock watering, irrigation, settling basins, or rice growing.
Artificial reflecting or swimming pools created by excavating and/or diking dry land.
Small ornamental waters created for primarily aesthetic reasons.
Water-filled depressions created incidental to construction activity.
Gullies and rills and non-wetland swales.
The proposed rule’s net effect is that more smaller and remote upstream bodies of water will fall with certainty within federal CWA jurisdiction; resulting in federal permit requirements and mitigation for any activities that may fill or add pollutants to such water bodies.
The agencies’ proposed jurisdictional rule does not address CWA jurisdictional exclusions for waste treatment systems or prior converted croplands, contentious issues that the agencies have intended to address in future agency guidance documents. Nor does it affect any of the exemptions from CWA Section 404 permitting provided by CWA Section 404(f), including those for normal agriculture, forestry, and ranching practices, nor the statutory and regulatory exemptions from NPDES permitting requirements for agricultural stormwater discharges and return flows from irrigated agriculture.
However, on March 25, 2014 – the same day as the proposed jurisdictional rule was released for public comment – the agencies, in conjunction with the U.S. Department of Agriculture, enacted an interpretive rule regarding CWA § 404(f)(1)(A), the statutory exemption from Corps dredge and fill permits for “normal forming, silviculture, and ranching activities.” The new agricultural interpretive rule, which took effect immediately when issued, states that discharges associated with 53 specific Natural Resources Conservation Service (“NRCS”) practices, listed in a separate document, are exempted.
The proposed rule has implications for permitting, facility siting, land use options, required mitigation, and even the availability of financing. Developers and private and public landowners may experience costs associated with additional permits, restrictions on options for land use, and greater restrictions on available financing. Sectors dependent on the availability of developable land – such as industry, manufacturing, energy, mining, transportation, and retail may be similarly impacted in terms of project timing, scope, and costs. Finally, federal and state agencies may need to expand regulatory requirements for activities affecting jurisdictional waters, including increased permitting for stormwater discharges or uses of materials such as pesticides that may reach surface waters.
Parameters for future application of the significant nexus test on a case-by-case basis.
Additional classes of waters to categorically deem either jurisdictional or non-jurisdictional.
Given the proposed rule’s reliance on the Connectivity Report, comments should address both scientific and legal concerns about the proposed rule.
For more information regarding the Clean Water Act, please contact Jeff Kray, or any other member of Marten Law’s Water Quality practice group.
 See EPA’s Federal Register Notice at p. 6.
 See R. Lawrence, Can We Comment Yet? EPA and Corps Issue Proposed New Rapanos Guidance , American College of Environmental Lawyers (May 2, 2011).
 Proposed 2011 Guidance at pp. 7-18.


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Whenever there is an increase in benefit amounts payable under title II of the Social Security Act (42 U.S.C. 401 et seq.) as a result of a determination made under section 215(i) of such Act (42 U.S.C. 415(i)), the Secretary shall, effective on the date of such increase in benefit amounts, increase each maximum annual rate of pension under sections 1521, 1541, and 1542 of this title, the rate of increased pension paid under such sections 1521 and 1541 on account of children, and each rate of monthly allowance paid under section 1805 of this title, as such rates were in effect immediately prior to the date of such increase in benefit amounts payable under title II of the Social Security Act, by the same percentage as the percentage by which such benefit amounts are increased.
Whenever there is an increase in benefit amounts payable under title II of the Social Security Act (42 U.S.C. 401 et seq.) as a result of a determination made under section 215(i) of such Act (42 U.S.C. 415(i)), the Secretary shall, effective on the date of such increase in benefit amounts, increase the maximum monthly rates of dependency and indemnity compensation for parents payable under subsections (b), (c), and (d), and the monthly rate provided in subsection (g), of section 1315 of this title and the annual income limitations prescribed in subsections (b)(3), (c)(3), and (d)(3) of such section, and the annual benefit amount limitations under sections 5507(c)(2)(D) and 5508 of this title, as such rates and limitations were in effect immediately prior to the date of such increase in benefit amounts payable under title II of the Social Security Act, by the same percentage as the percentage by which such benefit amounts are increased.
Whenever there is an increase under paragraph (1) of this subsection in such rates and annual income limitations, the Secretary shall, effective on the date of such increase in such rates and limitations, adjust (as provided in subparagraph (B) of this paragraph) the rates of dependency and indemnity compensation payable under subsection (b)(1) or (c)(1) of section 1315 of this title to any parent whose annual income is more than $800 but not more than the annual income limitation in effect under subsection (b)(3) or (c)(3) of such section, as appropriate, and adjust the rates of such compensation payable under subsection (d)(1) of such section to any parent whose annual income is more than $1,000 but not more than the annual income limitation in effect under subsection (d)(3) of such section.
The adjustment in rates of dependency and indemnity compensation referred to in subparagraph (A) of this paragraph shall be made by the Secretary in accordance with regulations which the Secretary shall prescribe.
Whenever there is an increase under subsection (a) in benefit rates payable under sections 1521, 1541, 1542, and 1805 of this title and an increase under subsection (b) in benefit rates and annual income limitations under section 1315 of this title, the Secretary shall publish such rates and limitations (including those rates adjusted by the Secretary under subsection (b)(2) of this section), as increased pursuant to such subsections, in the Federal Register at the same time as the material required by section 215(i)(2)(D) of the Social Security Act (42 U.S.C. 415(i)(2)(D)) is published by reason of a determination under section 215(i) of such Act (42 U.S.C. 415(i)).
Whenever such rates and income limitations are so increased, the Secretary may round such rates and income limitations in such manner as the Secretary considers equitable and appropriate for ease of administration.
The Social Security Act, referred to in text, is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Title II of the Social Security Act is classified generally to subchapter II (§ 401 et seq.) of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.
2004—Subsec. (b)(1). Pub. L. 108–454 inserted “and the annual benefit amount limitations under sections 5507(c)(2)(D) and 5508 of this title,” after “(d)(3) of such section,”.
1996—Subsec. (a). Pub. L. 104–204, § 421(c)(1), substituted “, the rate of increased pension” for “and the rate of increased pension” and inserted “and each rate of monthly allowance paid under section 1805 of this title,” after “on account of children,”.
Subsec. (c)(1). Pub. L. 104–204, § 421(c)(2), substituted “1542, and 1805” for “and 1542”.
1991—Pub. L. 102–40 renumbered section 3112 of this title as this section.
Subsec. (a). Pub. L. 102–83, § 5(c)(1), substituted “1521”, “1541”, and “1542” for “521”, “541”, and 542”, respectively, wherever appearing.
Subsec. (b)(1), (2)(A). Pub. L. 102–83, § 5(c)(1), substituted “1315” for “415”.
Subsec. (b)(2)(B). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” in two places.
Subsec. (c)(1). Pub. L. 102–83, § 5(c)(1), substituted “1521”, “1541”, and “1542” for “521”, “541”, and “542”, respectively, and “1315” for “415”.
Subsec. (c)(2). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” in two places.
1982—Subsec. (a). Pub. L. 97–295, § 4(76)(A), (B), inserted “(42 U.S.C. 401 et seq.)” after first reference to “title II of the Social Security Act”, and inserted “(42 U.S.C. 415(i))” after “section 215(i) of such Act”.
Subsec. (b)(1). Pub. L. 97–295, § 4(76)(A)–(C), inserted “(42 U.S.C. 401 et seq.)” after first reference to “title II of the Social Security Act”, inserted “(42 U.S.C. 415(i))” after “section 215(i) of such Act”, and substituted “subsection (g), of section 415 of this title” for “subsection (h), of section 415 of such title”.
Subsec. (c)(1). Pub. L. 97–295, § 4(76)(B), (D), inserted “(42 U.S.C. 415(i)(2)(D))” after “section 215(i)(2)(D) of the Social Security Act”, and inserted “(42 U.S.C. 415(i))” after “section 215(i) of such Act”.
Except as otherwise provided, this title [enacting sections 5506 to 5510 and 6106 to 6108 of this title and amending this section and sections 5502 and 6101 of this title] and the amendments made by this title shall take effect on the first day of the seventh month beginning after the date of the enactment of this Act [Dec. 10, 2004].
Section 5510 of title 38, United States Code, as added by section 505(a), shall take effect on the date of the enactment of this Act [Dec. 10, 2004].
Amendment by Pub. L. 104–204 effective Oct. 1, 1997, notwithstanding section 421(d) of Pub. L. 104–204, set out as an Effective Date note under section 1801 of this title, unless legislation other than Pub. L. 104–204 is enacted providing for an earlier effective date, see section 422(c) of Pub. L. 104–204, set out as a note under section 1151 of this title.
Amendment by Pub. L. 104–204 effective Jan. 1, 1997, see section 421(d) of Pub. L. 104–204, set out as an Effective Date note under section 1801 of this title.
Section effective Jan. 1, 1979, see section 401 of Pub. L. 95–588, set out as an Effective Date of 1978 Amendment note under section 101 of this title.

matches: § 421 § 421 § 5 § 5 § 4 § 5 § 4 § 4 § 4 § 4


1. A person charged with crime in a federal court is entitled by the Sixth Amendment to the assistance of counsel for his defense. P. 304 U. S. 462.
2. This right may be waived, but the waiver must be an intelligent one, and whether there was such must depend upon the particular facts and circumstances, including background, experience, and conduct of accused. P. 304 U. S. 464.
3. It is a duty of a federal court in the trial of a criminal case to protect the right of the accused to counsel, and, if he has no counsel, to determine whether he has intelligently and competently waived the right. It would be fitting that such determination be made a matter of record. P. 304 U. S. 465.
4. If the accused is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. P. 304 U. S. 468.
5. The question whether the assistance of counsel was intelligently and competently waived by the prisoner at his trial may be determined in habeas corpus proceedings on proofs aliunde. P. 304 U. S. 467.
CERTIORARI, 303 U.S. 629, to review the affirmance of a judgment of the District Court discharging a writ of habeas corpus. See 13 F.Supp. 253.
"the peculiar circumstances surrounding the case and the desire of the court to afford opportunity to present any additional facts and views which petitioner desired to present."
Upon consideration of the second petition, the court found that it did "not substantially differ from the" first, "and for the reasons stated in the decision in that case" the second petition was also denied.
"to make the trial void and justify its annulment in a habeas corpus proceeding, but that they constituted trial errors or irregularities which could only be corrected on appeal."
feloniously uttering and passing four counterfeit twenty-dollar Federal Reserve notes and possessing twenty-one such notes. Both were then enlisted men in the United States Marine Corps, on leave. They were bound over to await action of the United States Grand Jury, but were kept in jail due to inability to give bail. January 21, 1935, they were indicted; January 23, 1935, they were taken to court, and there first given notice of the indictment; immediately were arraigned, tried, convicted and sentenced that day to four and one-half years in the penitentiary, and January 25, were transported to the Federal Penitentiary in Atlanta. While counsel had represented them in the preliminary hearings before the commissioner in which they -- some two months before their trial -- were bound over to the Grand Jury, the accused were unable to employ counsel for their trial. Upon arraignment, both pleaded not guilty, said that they had no lawyer, and -- in response to an inquiry of the court -- stated that they were ready for trial. They were then tried, convicted and sentenced, without assistance of counsel.
"Both petitioners lived in distant cities of other states, and neither had relatives, friends, or acquaintances in Charleston. Both had little education, and were without funds. They testified that they had never been guilty of nor charged with any offense before, and there was no evidence in rebuttal of these statements. [Footnote 5]"
"I tried to speak to the jury after the evidence was in during my trial over in the Eastern District of South Carolina. I told the jury, 'I don't consider myself a hoodlum as the District Attorney has made me out several times.' I told the jury that I was not a native of New York as the District Attorney stated, but was from Mississippi, and only stationed for government service in New York. I only said fifteen or twenty words. I said I didn't think I was a hoodlum, and could not have been one of very long standing because they didn't keep them in the Marine Corps."
"I objected to one witness' testimony. I didn't ask him any questions, I only objected to his whole testimony. After the prosecuting attorney was finished with the witness, he said, 'Your witness,' and I got up and objected to the testimony on the grounds that it was all false, and the Trial Judge said any objection I had I would have to bring proof or disproof."
". . . were remanded to jail, where they asked the jailer to call a lawyer for them, but were not permitted to contact one. They did not, however, undertake to get any message to the judge. "
". . . January 25th, they were transported by automobile to the Federal Penitentiary in Atlanta, Ga. arriving . . . the same day."
"There, as is the custom, they were placed in isolation and so kept for sixteen days without being permitted to communicate with anyone except the officers of the institution, but they did see the officers daily. They made no request of the officers to be permitted to see a lawyer, nor did they ask the officers to present to the trial judge a motion for new trial or application for appeal or notice that they desired to move for a new trial or to take an appeal."
"On May 15, 1935, petitioners filed applications for appeal which were denied because filed too late."
". . . right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. [Footnote 10]"
The Sixth Amendment withholds from federal courts, [Footnote 11] in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.
Two. There is insistence here that petitioner waived this constitutional right. The District Court did not so find. It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights, [Footnote 12] and that we "do not presume acquiescence in the loss of fundamental rights." [Footnote 13] A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.
Patton v. United States, 281 U. S. 276, decided that an accused may, under certain circumstances, consent to a jury of eleven and waive the right to trial and verdict by a constitutional jury of twelve men. The question of waiver was there considered on direct appeal from the conviction, and not by collateral attack on habeas corpus. However, that decision may be helpful in indicating how, and in what manner, an accused may -- before his trial results in final judgment and conviction -- waive the right to assistance of counsel. The Patton ease noted approvingly a state court decision [Footnote 14] pointing out that the humane policy of modern criminal law had altered conditions which had existed in the "days when the accused could not testify in his own behalf, [and] was not furnished Counsel," and which had made it possible to convict a man when he was "without money, without counsel, without ability to summon witnesses and not permitted to tell his own story, . . ."
The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court in which the accused -- whose life or liberty is at stake -- is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.
"It is unfortunate if petitioners lost their right to a new trial through ignorance or negligence, but such misfortune cannot give this Court jurisdiction in a habeas corpus case to review and correct the errors complained of."
"power to inquire with regard to the jurisdiction of the inferior court, either in respect to the subject matter or to the person, even if such inquiry . . . [involves] an examination of facts outside of, but not inconsistent with, the record. [Footnote 18]"
". . . effect is to substitute for the bare legal review that seems to have been the limit of judicial authority under the common law practice, and under the Act of 31 Car. II, c. 2, a more searching investigation, in which the applicant is put upon his oath to set forth the truth of the matter respecting the causes of his detention, and the court, upon determining the actual facts, is to 'dispose of the party as law and justice require.'"
"There being no doubt of the authority of the Congress to thus liberalize the common law procedure on habeas corpus in order to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution or a law or treaty established thereunder, it results that, under the sections cited, a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to a judgment against him. . . . "
". . . it is open to the courts of the United States upon an application for a writ of habeas corpus to look beyond forms and inquire into the very substance of the matter. . . . [Footnote 20]"
Petitioner, convicted and sentenced without the assistance of counsel, contends that he was ignorant of his right to counsel, and incapable of preserving his legal and constitutional rights during trial. Urging that -- after conviction -- he was unable to obtain a lawyer; was ignorant of the proceedings to obtain new trial or appeal and the time limits governing both, and that he did not possess the requisite skill or knowledge properly to conduct an appeal, he says that it was -- as a practical matter -- impossible for him to obtain relief by appeal. If these contentions be true in fact, it necessarily follows that no legal procedural remedy is available to grant relief for a violation of constitutional rights unless the courts protect petitioner's rights by habeas corpus. Of the contention that the law provides no effective remedy for such a deprivation of rights affecting life and liberty, it may well be said -- as in Mooney v. Holohan, 294 U. S. 103, 294 U. S. 113 -- that it "falls with the premise." To deprive a citizen of his only effective remedy would not only be contrary to the "rudimentary demands of justice," [Footnote 21] but destructive of a constitutional guaranty specifically designed to prevent injustice.
right to assistance of counsel. If, in a habeas corpus hearing, he does meet this burden and convinces the court by a preponderance of evidence that he neither had counsel nor properly waived his constitutional right to counsel, it is the duty of the court to grant the writ.
In this case, petitioner was convicted without enjoying the assistance of counsel. Believing habeas corpus was not an available remedy, the District Court below made no findings as to waiver by petitioner. In this state of the record, we deem it necessary to remand the cause. If -- on remand -- the District Court finds from all of the evidence that petitioner has sustained the burden of proof resting upon him and that he did not competently and intelligently waive his right to counsel, it will follow that the trial court did not have jurisdiction to proceed to judgment and conviction of petitioner, and he will therefore be entitled to have his petition granted. If petitioner fails to sustain this burden, he is not entitled to the writ.
The cause is reversed and remanded to the District Court for action in harmony with this opinion.
MR. JUSTICE REED concurs in the reversal.
MR. JUSTICE McREYNOLDS is of opinion that the judgment of the court below should be affirmed.
MR. JUSTICE BUTLER is of the opinion that the record shows that petitioner waived the right to have counsel, that the trial court had jurisdiction, and that the judgment of the Circuit Court of Appeals should be affirmed.
Opinion of the District Judge, 13 F.Supp. 253, 254.
13 F.Supp. at 256; see Rules of Practice and Procedure (Criminal Appeals Rules), adopted May 7, 1934, II, III.
Cf. Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325.
Patton v. United States, 281 U. S. 276, 281 U. S. 308.
Powell v. Alabama, 287 U. S. 45, 287 U. S. 68, 69.
Aetna Ins. Co. v. Kennedy, 301 U. S. 389, 301 U. S. 393; Hodges v. Easton, 106 U. S. 408, 106 U. S. 412.
Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U. S. 292, 301 U. S. 307.
Hack v. State, 141 Wis. 346, 351, 124 N.W. 492.
Cf. 28 U. S. 3 Pet.193; Knewal v. Egan, 268 U. S. 442; Harlan v. McGourin, 218 U. S. 442.
Woolsey v. Best, 299 U. S. 1, 299 U. S. 2.
Frank v. Mangum, 237 U. S. 309, 237 U. S. 327.
In re Mayfield, 141 U. S. 107, 141 U. S. 116; Cuddy, Petitioner, 131 U. S. 280.
28 U.S.C. ch. 14, § 451, et seq.
Frank v. Mangum, supra, 237 U. S. 330, 237 U. S. 331; cf. Moore v. Dempsey, 261 U. S. 86; Mooney v. Holohan, 294 U. S. 103; Hans Nielsen, Petitioner, 131 U. S. 176.
Cf. Mooney v. Holohan, supra, 294 U. S. 112.
Cf., Frank v. Mangum, supra, 237 U. S. 327.
Cf. Moore v. Dempsey, 261 U. S. 86, 261 U. S. 92; Patton v. United States, 281 U. S. 276, 281 U. S. 312, 281 U. S. 313.


text:
the Trading with the Enemy Act, is a purely possessory one, in which the custodian's determination that the property is so held is conclusive. P. 262 U. S. 55. Central Trust Co. v. Garvan, 254 U. S. 554; Stoehr v. Wallace, 255 U. S. 239.
2. This is a constitutional exercise of the war power. Id.
3. Where securities and moneys were held by a trustee in trust for the joint account of a neutral and an alien enemy, to be delivered and paid to either upon his sole demand, or to the survivor, the Alien Property Custodian, proceeding under the Trading with the Enemy Act, was entitled to a decree requiring the trustee forthwith to transfer and deliver them all to him. P. 262 U. S. 54.
4. How long this act should remain in force in view of the consequence of the War, is a legislative, not a judicial, question; it was not terminated by the cessation of hostilities, by the joint resolution declaring the state of war as between Germany and the United States at an end, or by the President's proclamation of peace. P. 262 U. S. 57.
Appeal from a judgment of the circuit court of appeals affirming a judgment of the district court which required the appellant to convey, transfer, assign, deliver, and pay to the Alien Property Custodian money and property held by it as a trustee.
This is a suit under the Trading with the Enemy Act of October 6, 1917, and the amendment of November 4, 1918, 40 Stat. 411, 1020. It was commenced by Francis P. Garvan as Alien Property Custodian. He ceasing to be such, Thomas W. Miller was appointed his successor, and substituted as petitioner.
"which the President after investigation shall determine . . . is so held, shall be conveyed, transported, assigned, delivered, or paid over to the alien property custodian."
The act has received exposition in Central Trust Co. v. Garvan, 254 U. S. 554, and Stoehr v. Wallace, 255 U. S. 239, and what it authorizes, and the conditions of the exercise of its authorization determined.
"nothing but the preliminary custody, such as would have been gained by seizure. It attaches the property to make sure that it is forthcoming if finally condemned and does no more."
In other words, and in comprehensive description, the act may be denominated an exercise of governmental power in the emergency of war and its procedure is accommodated to and made adequate to its purpose, but securing as well, the assertion of opposing or countervailing rights "by a suit in equity unembarrassed by the President's executive determination," and if the claimant "prevails" the property "is to be forthwith returned to him."
"do forthwith convey, transfer, assign, deliver and pay to Thomas W. Miller, as Alien Property Custodian, all of the money and other property held by it under a certain trust agreement entered into on January 30, 1913,"
between the company and Frederick Wesche and Helene J. von Schierholz. A list of the moneys and other property was attached to the decree.
"or to the survivor of them, it being understood that the said bonds and the said interest money to be collected thereon are to be held and collected and delivered or paid over to either the said Frederick Wesche or to the said Helene J. von Schierholz, or to the survivor of them."
"The Trust Company, in compliance with the provisions of the act, made a report in December, 1917, that it held stocks, bonds, mortgages, securities and money, of the value of about $600,000, in trust, as to both principal and interest, for the joint account of Frederick Wesche, of Paris, France, and Helene J. von Schierholz, of Plaue, Germany, to be delivered and paid to either upon his or her sole demand, or to the survivor."
neutral had power upon his sole order to withdraw the whole property, the Trust Company thought the Alien Property Custodian had no right to it, and accordingly declined to yield possession. Because the alien enemy had like power, upon her sole order, to withdraw the whole property and acquire its possession, the Alien Property Custodian thought he had a right to it, and accordingly demanded it. The question is, which was right?"
The court answered the Custodian by virtue of his power under the act and the efficacy of its exercise. This appeal disputes the answer, and the contention is that the power was not exercised as required, because the Custodian had not made an investigation which justified in any way "any determination that the property was all (italics counsel's) enemy property, or seizure of all (italics counsel's) the property as such." In support of the contention, it is urged, that no investigation was made of any interest in the property other than that of Mrs. Schierholz -- none of Wesche, or none determined beyond what was shown by the report of and letter of the Commercial Trust Company. And there is also a contention that Wesche was not an enemy, and that he was given no opportunity of review, and the act, as to him, was "unconstitutional and without due process of law" and that, consequently, surrender of the property by appellant (Trust Company) under such circumstances to the Custodian, would have afforded it no defense to the claim of Wesche for such part of the property as belonged to him. The appellant accordingly did not transfer or deliver the property as so demanded, and still retains it under supersedeas bond.
The contentions are precluded by the cases which we have cited. As there decided, the act was of peremptory quality and effect. The suit was tantamount to physical seizure -- gave preliminary custody such as seizure gives, and was intended to be not "less immediately effective than a taking with a strong hand."
It is manifest, therefore, that the defenses upon which the contentions are based were not available to either claimant of the property. And, besides, under the act, it is to be remembered, the Custodian succeeds to all the rights in the property to which the enemy is entitled as completely as if by conveyance, transfer or assignment, and the Trust Company in the present case held the bonds for the joint account of Wesche and Mrs. Schierholz to be paid over to either of them. She had the power, therefore, to demand the bonds and receive them, and to this power the Custodian determined he succeeded, and therefore exercised. What interest Wesche had or has does not require decision, nor can the Trust Company urge it, the act requiring submission to the determination of the Custodian.
"claims the right to have property interests judicially determined by a court of equity before a right to the possession of the property can be asserted by the Alien Property Custodian."
we have said, redress for mistakes in its exercise by the claimant of the property filing a claim under § 9, which, if not yielded to, may be enforced by suit.
The next contention of the Trust Company is that, the act being a provision for the emergency of war, is ceased with the cessation of war, ceased with the joint resolution of Congress declaring the state of war between Germany and the United States at an end, and its approval by the President, July 2, 1921, and the proclamation of peace by the President August 25, 1921. The contention, however, encounters in opposition the view that the power which declared the necessity is the power to declare its cessation and what the cessation requires. The power is legislative. A court cannot estimate the effects of a great war and pronounce their termination at a particular moment of time, and that its consequences are so far swallowed up that legislation addressed to its emergency had ceased to have purpose or operation with the cessation of the conflicts in the field. Many problems would yet remain for consideration and solution, and such was the judgment of Congress, for it reserved from its legislation the Trading with the Enemy Act and amendments thereto, and provided that all property subject to that act shall be retained by the United States "until such time as the Imperial German government . . . shall have . . . made suitable provision for the satisfaction of all claims." Section 5. See Kahn v. Anderson, 255 U. S. 1, and Vincenti v. United States, 272 F. 114, and 256 U.S. 700.
* By § 5, the President is in terms authorized to exercise "any" of his powers "through such officer or officers as he shall direct." By § 6, he is authorized to appoint and "prescribe the duties of" the officer to be known as the Alien Property Custodian.

matches:
v.
v.
v.
v.
§ 9
v.
v.
§ 5
§ 6


Only one summary order from the Circuit today in the criminal realm: In United States v. Jeremy Viles, Docket No. 15-885-cr, the Court (Livingston, Carney, Stanceu), rejected the defendant’s claim that he should be allowed to withdraw his guilty plea based on then-counsel’s allegedly erroneous advice regarding the advisory Guidelines range he would face at sentencing. Under Circuit law, in order to meet Strickland’s prejudice component in this context, the “‘defendant must show that there is a reasonable probability that were it not for counsel’s errors, he would not have pled guilty and would have proceeded to trial.’” Order at 2 (quoting United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005)). Viles fails to do so.
The Circuit issued three Opinions today that are relevant to people litigating issues of criminal law. Below is a brief description, which will be followed up with more discussion later.
I. In Pierotti v. Walsh, No.15-1944-pr (Circuit Judges: Pooler, Livingston, and Lohier), the Circuit ruled in favor of a State prisoner. It holds that his claim of ineffective assistance of counsel, presented under 28 U.S.C. § 2254, is not procedurally barred.
The petitioner in the case was hearing impaired since childhood and required two hearing aids. His last hearing aid was destroyed while he was in jail awaiting trial. The ineffective assistance of counsel (“IAC”) claim was that his trial lawyer did not take measures to ensure his hearing disability was accommodated at trial, so he could not understand much of what was occurring.
In United States v. Pendergrass, 15-1965, the Second Circuit affirmed the conviction of Terrence Pendergrass, a former captain at Rikers Island, on one count of willfully violating the constitutional rights of an inmate, who died following the ingestion of cleaning supplies, by refusing to get him medical attention and prohibiting other guards from getting him medical attention. Pendergrass raised three issues: that he received ineffective assistance of counsel at trial, that the District Court improperly instructed the jury regarding willfulness and conscious avoidance, and that his above-guideline sentence was unreasonable.
Petitioner Michael Matthews was convicted of a 2006 bank robbery and received a life sentence under the federal “three strikes” statute, 18 U.S.C. § 3559(c). After exhausting his direct appeals, he filed a 2255 motion alleging, amongst other things, ineffectiveness of his trial counsel.
Defendant Chad Marks was convicted after a jury trial of drug trafficking offenses and two § 924(c) counts, and was sentenced to the resulting 40-year mandatory minimum. The trial came after months of plea negotiations, including an offer by the government to resolve the case with a 20-year sentence.
Before trial, Marks had filed a motion with the district court seeking to compel the government to follow up on a different plea offer that, apparently, was in the nature of a cooperation agreement. The court denied the motion and the case proceeded to trial.
It seems as if most Second Circuit habeas decisions deal only with the procedural hurdles faced by state prisoners. So it is indeed remarkable that the court has decided two cases less than one week apart in which it got through the procedural thicket and actually resolved the substantive issue presented in the case. This decision, in which the court agrees that the petitioner’s state court appellate counsel was constitutionally ineffective, is accordingly blog-worthy.


§ 416.2111 Conditions for our agreeing to make Medicaid eligibility determinations.
§ 416.2116 Medicaid eligibility determinations.
§ 416.2130 Effect of the agreement and responsibilities of States.
§ 416.2140 Liability for erroneous Medicaid eligibility determinations.
§ 416.2145 Services other than Medicaid determinations.
§ 416.2161 Charges to States.
§ 416.2166 Changing the agreement.
§ 416.2171 Duration of agreement.
§ 416.2176 Disagreements between a State and us.
Secs. 702(a)(5), 1106, 1631(d)(1), and 1634 of the Social Security Act (42 U.S.C. 902(a)(5), 1306, 1383(d)(1), and 1383c).
53 FR 12941, Apr. 20, 1988, unless otherwise noted.


Image from the world premiere of Art in the Twenty-First Century Season 8, at Metrograph cinemas, September 14, 2016. Photo by Christos Katsiaouni.
On a warm September evening, two hundred of Art21’s closest friends, artists, and supporters gathered at Metrograph, a discreet indie cinema on a quiet corner of the Lower East Side. A cinephile’s arthouse dream, Metrograph was the perfect setting for Art21 to unveil our newest season of Art in the Twenty-First Century, which features sixteen innovative artists in four cities, shot by three exceptional documentary filmmakers.
Featured Season 8 artists Barbara Kasten and Edgar Arceneaux chatted with the season’s host, Claire Danes, who arrived in red heels with her hair pulled into a neat, elegant bun. Guests and Art21 staff helped themselves to striped boxes of popcorn and king sized candy bars from Metrograph’s concession stand, while more grown-up hors d’oeuvre and cocktails were offered by wait staff. The atmosphere was celebratory and anticipatory as guests made their way to the theater’s red velvet seats to watch the world premiere of Season 8.
Season 8 host Claire Danes speaking with Season 8 featured artist Barbara Kasten and Art21 Curator Wesley Miller. Photo by Christos Katsiaouni.
Inside the theater, a still image from Diana Thater’s exhibition The Sympathetic Imagination—one we’d all grown familiar with as we prepared to share our new season—gleamed from the giant screen. The blue-green crescent of the earth shines against the silhouette of woman watching the planet, just as we all would soon be watching contemporary artists like Thater bring their work to life.
Artists and art lovers alike found their seats as the lights went down, but as soon as the episode began, everything else fell away. We came into the theatre with two hundred people, but in a few minutes we found ourselves alone with the artists in Chicago. Nick Cave’s colorful Soundsuits appear, bobbing and weaving in intricate dances. Chris Ware peddles a tandem bicycle with his daughter, as the trees and houses of suburbia blur to become the cartoonist’s own heartfelt narratives. Barbara Kasten poses light and plexiglass for her photographs, patiently rearranging her house of transparent cards each time it inevitably crashes to her studio floor. Theaster Gates sits at a pottery wheel, his hands caked in clay. The camera cuts to the library he founded, where he speaks about art and communities and the power of one to change the other.
The night slowly wound down as guests departed with Art21 gift bags in tow. Gallerists, art critics, and nonprofit leaders strolled out into the city. While many of these arts leaders live and work in New York City, only blocks or boroughs away from the event, the evening collectively transported them to Chicago, offering a brief tour of a lesser known American arts capital.
Claire Danes with Season 8 featured artist Edgar Arceneaux and Art21 board member Barbara Gundlach. Photo by Christos Katsiaouni.
Kelly Olshan is an intern at ART21 and an MA Candidate in Arts Administration at Columbia University. An advocate for individual artists, she’s worked for Creative Capital and Americans for the Arts. She also manages her own visual arts practice, Kelly Olshan Fine Art.


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On 25 August 2016, the European Court of Human Rights communicated the case of E.S. v. Spain (no. 13273/16), which relates to the deportation of a homosexual Senegalese national from Spain to Senegal. The Court asked the parties whether the applicant, taken into consideration his sexual orientation, would face a real risk of being subjected to treatment in breach with Articles 2 and 3 ECHR, if returned to Senegal. In addition, the Court asked the parties to what extent the applicant was able to access an effective remedy within the meaning or Article 13 ECHR in relation his asylum application.
Based on an unofficial ELENA translation.
On 30 August 2016, the European Court of Human Rights communicated the case of Hannan and Kirakosyan v. the Netherands (no. 70286/14). The case relates to the detention of an accompanied Syrian child at the asylum application centre at Schiphol Airport in the Netherlands. The applicants, the child’s parents, submitted an application to the ECtHR complaining that the detention of their son violated Article 3 ECHR. Referring to Popov v. France, Mushkhadzhiyeva and Others v. Belgium, and Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, the Court asked the parties whether the detention of the accompanied child in the asylum application centre at Schiphol Airport amounted to inhuman or degrading treatment.
On 5 September 2016, the European Court of Human Rights communicated the case of S.S. v. Russia (no. 21535/16). The case relates to the removal decision of a Syrian national from Russia to Syria. The applicant entered Russia on a single entry visa in August 2014. The Federal Migration Service (FMS) rejected his subsequent application for temporary asylum. The District Court ordered his administrative removal from Russia, which was upheld by the court of appeal. Eventually, the applicant was granted temporary asylum until 26 August 2016. The applicant submitted an application to the ECtHR complaining that his removal to Syria would be in breach of Article 3 ECHR, in view of the ongoing military conflict.
Referring to the case of L.M. and Others v. Russia, the Court asked the parties whether the applicant’s removal from Russia to Syria would be in violation of Article 3 ECHR. It further asked if the temporary asylum decision and a pending application for asylum have suspensive or other legal effect vis-à-vis the enforceable removal order.
On 6 September 2016, the European Court of Human Rights communicated the case of S.W. v. Russia (no. 20803/16). The case relates to the detention and removal of a Syrian national from Russia to Syria. The applicant submitted an application to the ECtHR complaining that his removal to Syria would be in breach of Article 2, 3, and Article 4 of Protocol 4 ECHR. In addition, the applicant complained that his immigration detention is in violation of Articles 5(1) and (4) ECHR. The applicant also alleged that his legal representative had not been allowed to visit him in detention.
The Court’s questions to the parties raise issues relating to the applicant’s pending removal, detention and effective remedies.
On 22 June 2016, the Tribunale di Milano (Italy) lodged a request to the CJEU for a preliminary ruling in the case Sacko Moussa v Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano.
Must Directive 2013/32/EU ( 1 ) (in particular Articles 12, 14, 31 and 46) be interpreted as permitting a procedure, such as the Italian procedure (under Article 19(9) of Legislative Decree No 150 of 2011), whereby a judicial authority seised by an asylum-seeker — whose application has been rejected by the administrative authority responsible for considering applications for asylum after it has conducted a full examination, including an interview — may, in cases where the application for judicial review is manifestly unfounded and the administrative authority’s rejection of the application is thus incontrovertible, dismiss the application for judicial review without preparatory inquiries and without being required to afford the applicant a further opportunity to be heard?
On 28 September 2016, the European Commission reported on the progress made under the European Agenda for Migration, including the EU’s relocation and resettlement schemes, the implementation of the EU-Turkey Statement and the measures to be taken by Greece in view of the resumption of transfers under the Dublin Regulation.
In the Sixth report on relocation and resettlement, the European Commission highlights, inter alia, that 1,202 people have been relocated in September 2016. In addition, 10,695 people have been resettled under the July 2015 scheme to 21 resettling States, including Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom). In the Third Report on the progress made in the implementation of the EU-Turkey Statement, the European Commission addresses the decrease of people crossing the Aegean Sea, the continuing of the return operations to Turkey, and the delivery of funding under the Facility of Refugees in Turkey.
Lastly, the European Commission adopted the Third recommendation on urgent measures to be taken by Greece in view of the resumption of transfers under the Dublin Regulation. The recommendation states that further progress needs to be achieved with regards to the reception facilities, the access to the asylum procedure and the structures for vulnerable applications, before a resumption of Dublin transfers to Greece can be considered.
Hungary: in Judgment 4004/2016, the Council of State examined the recent legislative and policy developments in Hungary, leading to an increase in the use of detention, as well as risks of refoulement to third countries. The Court drew on information contained in reports by UNHCR, the European Commission against Racism and Intolerance (ECRI) and Amnesty International, among others. On the basis of deficiencies in the asylum procedure and reception conditions, the Court found that the transfer of the asylum seeker to Hungary would violate Article 4 of the EU Charter of Fundamental Rights.
Bulgaria: Judgments 3998/2016, 3999/2016, 4000/2016 and 4002/2016 annulled decisions transferring asylum seekers to Bulgaria, on account of risks of inhuman or degrading treatment contrary to Article 4 of the EU Charter of Fundamental Rights.
The ELENA Weekly Legal Update would like to thank Silvia Canciani and Loredana Leo from ASGI for bringing this to our attention.
Based on the AIDA article dated 29 September 2016, available here.
On 19 September 2016, the District Court of The Hague ruled upon the designation of the Former Yugoslav Republic of Macedonia (FYROM) as a safe country of origin.
The case relates to the asylum applications from a Macedonian family, members of the Romani community. The State Secretary of Security and Justice had dismissed their asylum claims as manifestly unfounded because FYROM was considered as a safe country of origin.
The Court deemed the following arguments of the State Secretary irrelevant for the designation of FYROM as a safe country of origin: (i) that Macedonian citizens are exempt from the visa obligation to be admitted to the European Union, (ii) that a number of other Member States have also designated FYROM as a safe country of origin, (iii) that FYROM has been granted candidate country status for membership of the European Union, and (iv) that the European Commission has proposed to place FYROM on the EU list of safe countries of origin.
Instead, the State Secretary should his safe country of origin assessment on relevant information from other Member States, EASO, UNHCR, Council of Europe and other relevant international organisations. Referring to the Advocate General’s opinion on the safe country of origin concept, the Court therefore observed that the designation of FYROM as a safe country of origin did not meet the legal requirements. The Court ruled the ministerial regulation, which indicated FYROM as a safe country of origin, non-binding. The appeal was granted.
The Country Information and Guidance Iran: Sexual orientation and gender identity provides information and guidance to decision-makers on handling asylum applications based on sexual orientation and gender identity.
Where there is a real risk that an LGBT person – or those reasonably likely of being suspected as such – will come to the attention of the authorities, the UK Home Office finds that the person would face a real risk of persecution. As LGBT persons in Iran are considered as members of a particular social group within the meaning of the Refugee Convention, they are likely to qualify for a grant of asylum. While homosocial and bisexual persons may be able to internally relocate, decision makers must consider this in line with the Supreme Court’s judgment in HJ (Iran).
For further information and guidance on the asylum applications based on sexual orientation see Asylum Instruction on Sexual identity in the asylum claim.
Amnesty International has published the report Stranded Hope: Hungary’s sustained attack on the rights of refugees and migrants. The report addresses Hungary’s structural breaches of European asylum law and international human rights law with regards to the treatment of refugees and migrants. This includes, inter alia, the failure to provide access to a prompt and effective asylum procedure at its border with Serbia, routine push-backs from Hungary into Serbia, and detention of asylum-seekers for extended periods without legitimate grounds.
The report therefore calls on the European Commission to reinforce the infringement proceedings against Hungary in order to bring Hungary’s migration and asylum policies in accordance with EU and international law obligations.
On 27 September 2016, the International Commission of Jurists (ICJ) published "Procedural rights in the proposed Dublin IV Regulation" Comments of the International Commission of Jurists on specific procedural measures in the Recast of the Dublin Regulation.
The ICJ submission focuses on the potential impact of the current proposal on the rights of asylum seekers in Europe, including the right to an effective remedy, the principle of non-refoulement and economic and social rights.
ECRE is recruiting a Senior Communications Coordinator to lead its communications work, strengthening external and internal communications in order to protect and advance the rights of refugees, asylum seekers, and displaced persons. ECRE’s communications work will support the delivery of all its objectives, covering legal, research and advocacy work. As part of a process of restructuring and strategic planning, ECRE is rebuilding its communications team, starting with the creation of this position.
Deadline for applications is 13 October 2016, see here the job description.

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It’s not easy to get medicine into the brain. The blood vessels that irrigate the central nervous system are covered with a special structure composed of three types of cells that act together as a very selective filter. Called the hematoencephalic, or blood-brain barrier, this structure only allows some compounds necessary for proper brain functioning to pass through, such as nutrients, hormones and gases. This selectiveness protects the central nervous system from toxic molecules found in the blood; however, it also prevents medications consumed orally or injected into the bloodstream from reaching the brain, even when this is necessary. At the University of Campinas (Unicamp), a group led by biologist Maria Alice da Cruz-Höfling is currently testing the possibility of using reduced graphene oxide, a nanostructured compound formed by carbon atoms, to open the barrier and enable certain medications to reach the brain with fewer side effects that those caused by the compounds currently in use.
Initial tests with reduced graphene oxide have been promising. Experiments conducted with cells and with laboratory animals indicate that it temporarily opens the barrier and is apparently not toxic to the organism, at the doses evaluated. “We work with this compound because nanomaterials in the graphene family showed the potential to interact with the nervous system, since graphene is an excellent conductor of electricity, and nerve cells communicate through electrical impulses,” explains pharmacist and biochemist Monique Mendonça, a post-doctoral researcher at the Unicamp Institute of Biology and the first author of the articles that described these results, published in 2015 and 2016 in the Journal of Nanobiotechnology and in Molecular Pharmaceutics.
Composed of a single layer of carbon atoms organized into regular hexagons, graphene is 200 times more resistant than steel, and is one of the best electrical conductors known. However, pure graphene has limited biological uses, since it is not very soluble in water. On the other hand, reduced graphene oxide can be diluted in water and maintains similar electrical properties to those of graphene.
Mendonça learned about reduced graphene oxide in 2013, in a conversation with researchers at the Nanoengineering and Diamond Laboratory of the School of Electrical Engineering and Computer Science (FEEC) at Unicamp, and decided to evaluate its potential to cross through the barrier. “We adapted the production process for this material to synthesize it without the need for intermediary chemical processes, and increased its purity to around 99%,” says researcher Helder Ceragioli, of the FEEC. The production methods described in the scientific literature normally leave behind impurities (iron, tungsten or nickel atoms), which can be toxic. According to the theoretical predictions, the purer the reduced graphene oxide, the lower the risk of causing damage to living tissue.
In these experiments, Mendonça injected reduced graphene oxide into the bloodstream of rats, and using techniques that allow the compound to be tracked in the organism, and observed that an hour later it had already penetrated into brain structures such as the hippocampus and thalamus. Since she detected a reduction in the level of the proteins that hold together the cells that line the blood vessels, she concluded that reduced graphene oxide had opened the barrier by creating space between the cells that make it up. Mendonça also noted that a few hours after the compound is injected, the barrier closed again. The group from Unicamp is currently investigating possible biochemical mechanisms that are activated in the cells to open the barrier.
Seven days after application, most of the compound had already been eliminated from the organism, suggesting that it does not tend to accumulate and become toxic to cells. Other exams found that the neurons in the treated rodents did not die, and that brain morphology remained intact. This material also did not cause any harm to blood cells or to organs such as the liver and kidneys. Moreover, reduced graphene oxide seems to offer advantages over compounds such as mannitol, used by doctors to open the blood-brain barrier.
“The results obtained so far indicate that reduced graphene oxide has the potential to carry medication to the brain or to penetrate the barrier and allow other substances to transport the medications there,” says Cruz-Höfling, who began to investigate ways to penetrate the blood-brain barrier 20 years ago, when she studied the effect of the venom of spiders of the genus Phoneutria, called armed spiders. “Since people bitten by these spiders showed neurotoxic symptoms, I assumed that the venom could cross through the barrier,” she recalls. Later she noted that low doses opened the barrier in rats. Given the difficulty in isolating the compound in the venom that is responsible for this effect, Cruz-Höfling began to test other compounds.
In spite of the encouraging results, it is still early to say whether reduced graphene oxide will be able to be used in clinical practice. First it must be determined whether it is safe for human use, and whether it actually enables other compounds to reach the brain more effectively.
Graphene oxide and the central nervous system: Evaluation of effects on blood brain barrier and nanotoxicological profile (No. 12/24782-5); Grant Mechanism Doctoral Research Grant; Principal Investigator Maria Alice da Cruz Höfling (Unicamp); Grant Recipient Monique Culturato Padilha Mendonça; Investment R$135,835.83 and R$31,276.24 (BEPE).
MENDONÇA, M. C. P. et al. PEGylation of reduced graphene oxide induces toxicity in cells of the blood-brain barrier: An in Vitro and in Vivo Study. Molecular Pharmaceutics. V. 13 (11). 18 Oct. 2016.
MENDONÇA, M. C. P. et al. Reduced graphene oxide: Nanotoxicological profile in rats. Journal of Nanobiotechnology. V. 14 (53). 24 Jun. 2016.
MENDONÇA, M. C. P. et al. Reduced graphene oxide induces transient blood-brain barrier opening: An in vivo study. Journal of Nanobiotechnology. V. 13 (78). 30 Oct. 2015.
DE PAULA LE SUEUR, L. et al. Breakdown of the blood-brain barrier and neuropathological changes induced by Phoneutria nigriventer spider venom. Acta Neuropathologica. V. 105 (2), p. 125-34. Feb. 2003.
It’s not easy to get medicine into the brain. The blood vessels that irrigate the central nervous system are covered with a special structure composed of three types of cells that act together as a very selective filter. Called the hematoencephalic, or blood-brain barrier, this structure only allows some compounds necessary for proper brain functioning to pass through, such as nutrients, hormones and gases. This selectiveness protects the central nervous system from toxic molecules found in the blood; however, it also prevents medications consumed orally or injected into the bloodstream from reaching the brain, even when this is necessary. At the University of Campinas (Unicamp), a group led by biologist Maria Alice da Cruz-Höfling is currently testing the possibility of using reduced graphene oxide, a nanostructured compound formed by carbon atoms, to open the barrier and enable certain medications to reach the brain with fewer side effects that those caused by the compounds currently in use. Initial tests with reduced graphene oxide have been promising. Experiments conducted with cells and with laboratory animals indicate that it temporarily opens the barrier and is apparently not toxic to the organism, at the doses evaluated. “We work with this compound because nanomaterials in the graphene family showed the potential to interact with the nervous system, since graphene is an excellent conductor of electricity, and nerve cells communicate through electrical impulses,” explains pharmacist and biochemist Monique Mendonça, a post-doctoral researcher at the Unicamp Institute of Biology and the first author of the articles that described these results, published in 2015 and 2016 in the Journal of Nanobiotechnology and in Molecular Pharmaceutics. Composed of a single layer of carbon atoms organized into regular hexagons, graphene is 200 times more resistant than steel, and is one of the best electrical conductors known. However, pure graphene has limited biological uses, since it is not very soluble in water. On the other hand, reduced graphene oxide can be diluted in water and maintains similar electrical properties to those of graphene. Mendonça learned about reduced graphene oxide in 2013, in a conversation with researchers at the Nanoengineering and Diamond Laboratory of the School of Electrical Engineering and Computer Science (FEEC) at Unicamp, and decided to evaluate its potential to cross through the barrier. “We adapted the production process for this material to synthesize it without the need for intermediary chemical processes, and increased its purity to around 99%,” says researcher Helder Ceragioli, of the FEEC. The production methods described in the scientific literature normally leave behind impurities (iron, tungsten or nickel atoms), which can be toxic. According to the theoretical predictions, the purer the reduced graphene oxide, the lower the risk of causing damage to living tissue. In these experiments, Mendonça injected reduced graphene oxide into the bloodstream of rats, and using techniques that allow the compound to be tracked in the organism, and observed that an hour later it had already penetrated into brain structures such as the hippocampus and thalamus. Since she detected a reduction in the level of the proteins that hold together the cells that line the blood vessels, she concluded that reduced graphene oxide had opened the barrier by creating space between the cells that make it up. Mendonça also noted that a few hours after the compound is injected, the barrier closed again. The group from Unicamp is currently investigating possible biochemical mechanisms that are activated in the cells to open the barrier. Preserved neurons Seven days after application, most of the compound had already been eliminated from the organism, suggesting that it does not tend to accumulate and become toxic to cells. Other exams found that the neurons in the treated rodents did not die, and that brain morphology remained intact. This material also did not cause any harm to blood cells or to organs such as the liver and kidneys. Moreover, reduced graphene oxide seems to offer advantages over compounds such as mannitol, used by doctors to open the blood-brain barrier. “Reduced graphene oxide is potentially safer than mannitol, which alters the flow of liquids in the central nervous system and can leave neurons susceptible to damage, besides harming kidney function,” comments physician Licio Velloso, a professor at the Unicamp School of Medical Sciences (FCM). Velloso is currently investigating alterations in organisms that change the permeability of the barrier; he considers reduced graphene oxide to be a promising candidate for this function. “Nevertheless,” he points out, “the pharmacological use of nanoparticles is still in the initial phase, and more studies are needed to determine whether they cause any long-term side effects.” “The results obtained so far indicate that reduced graphene oxide has the potential to carry medication to the brain or to penetrate the barrier and allow other substances to transport the medications there,” says Cruz-Höfling, who began to investigate ways to penetrate the blood-brain barrier 20 years ago, when she studied the effect of the venom of spiders of the genus Phoneutria, called armed spiders. “Since people bitten by these spiders showed neurotoxic symptoms, I assumed that the venom could cross through the barrier,” she recalls. Later she noted that low doses opened the barrier in rats. Given the difficulty in isolating the compound in the venom that is responsible for this effect, Cruz-Höfling began to test other compounds. In spite of the encouraging results, it is still early to say whether reduced graphene oxide will be able to be used in clinical practice. First it must be determined whether it is safe for human use, and whether it actually enables other compounds to reach the brain more effectively. Project Graphene oxide and the central nervous system: Evaluation of effects on blood brain barrier and nanotoxicological profile (No. 12/24782-5); Grant Mechanism Doctoral Research Grant; Principal Investigator Maria Alice da Cruz Höfling (Unicamp); Grant Recipient Monique Culturato Padilha Mendonça; Investment R$135,835.83 and R$31,276.24 (BEPE). Scientific Articles MENDONÇA, M. C. P. et al. PEGylation of reduced graphene oxide induces toxicity in cells of the blood-brain barrier: An in Vitro and in Vivo Study. Molecular Pharmaceutics. V. 13 (11). 18 Oct. 2016. MENDONÇA, M. C. P. et al. Reduced graphene oxide: Nanotoxicological profile in rats. Journal of Nanobiotechnology. V. 14 (53). 24 Jun. 2016. MENDONÇA, M. C. P. et al. Reduced graphene oxide induces transient blood-brain barrier opening: An in vivo study. Journal of Nanobiotechnology. V. 13 (78). 30 Oct. 2015. DE PAULA LE SUEUR, L. et al. Breakdown of the blood-brain barrier and neuropathological changes induced by Phoneutria nigriventer spider venom. Acta Neuropathologica. V. 105 (2), p. 125-34. Feb. 2003.

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