The court granted plaintiff's motion to amend its answer to defendant's false marking claim to include laches and unclean hands defenses and rejected defendant's argument that equitable defenses may not be invoked against the government and therefore cannot be invoked against a defendant who stands in the government's shoes. "The Ninth Circuit considered an identical argument in the context of the Clean Air Act and disagreed. . . . Thus, the Court finds that laches and the equitable defense of unclean hands are suitable affirmative defenses against a citizen suit brought under § 292." However, the court denied plaintiff's motion to amend to assert an advice of counsel affirmative defense. "[T]he Federal Circuit [in Pequignot v. Solo Cup Co., 608 F.3d 1356 (Fed. Cir. 2010)] considered advice of counsel not as an affirmative defense, but as part of the 'intent to deceive' analysis. [Plaintiff] notes that the 'advice of counsel defense' contains the word 'defense.' But appending the word 'defense' to a phrase does not an affirmative defense make."
In granting plaintiff's motion for summary judgment of infringement the court rejected defendant's argument that it did not infringe a method claim because the step of "supplying digital data representing each of a plurality of source data streams from a plurality of users" could only be performed by the end user and not defendant. "Defendants are unable to make a divided infringement argument because it is the software that performs all necessary steps of the patent. A user is necessarily involved at least at some point in most computer method patents; simple involvement, however, is not enough to give rise to divided infringement. For example, even the famous Amazon.com 1-click patent has a limitation requiring a 'response to only a single action being performed.' The user necessarily is the one who performs this 'single action' after going to the web page and searching for the item. If simple user involvement were enough to give rise to divided infringement, few, if any, software patents could be infringed."
The magistrate judge recommended dismissing plaintiff's qui tam false marking action for failure to plead intent to deceive with particularity. "Plaintiff herein seeks to establish the element of intent to deceive by imputing knowledge of the expiration of the [patent-in-suit] on Defendants based on Defendants' alleged sophistication as a company, their experience and knowledge with patents and intellectual property and Defendants' alleged familiarity with the [patent] application specifically. . . . Plaintiff also alleges that Defendants paid the maintenance fees on the [patent-in-suit] until 2000 when such payments were discontinued. . . . [and that the products at issue] are marked with a 2009 copyright, indicating that Defendants 'contemplated, reviewed, authored, created, and approved the contents of the packaging/labels for the [products at issue], and purposefully chose to mark [the products] with the expired patents.'. . . Plaintiff has failed to adequately set forth the element of 'intent to deceive the public' required by 35 U.S.C. § 292."
Defendant's motion to dismiss plaintiffs' qui tam false marking action for failing to plead with particularity was granted. "[Plaintiffs argue] in their brief in opposition to the motion to dismiss that the length of time that [the patent-in-suit] was expired is sufficient to show that [defendant] intended to deceive the public. We disagree. The length of [defendant's] alleged conduct alone does not show that [it] intended to deceive the public. [Plaintiffs] cannot rest on their single conclusory allegation regarding intent to deceive to satisfy the pleading requirements of Rule 9(b)."
Plaintiff's motion to compel the production of defendant's settlement agreement in another case was denied. "Although [plaintiff] argues that the [patent] in the Texas case is 'directly relevant' to the . . . patents at issue in this case, I find that [plaintiff] has only shown that the [other] patent is one of a myriad of patents owned by [defendant] relating to prosthetic products that use a gel and substrate liner issued by Bruce G. Kania. . . . I note the strong federal policy supporting the confidentiality of settlement agreements, and the fact that information concerning [defendant's] knowledge of its liner patents and their validity is accessible by [plaintiff] via other discovery means."
Summary Judgment of Noninfringement Granted as to Method Claims Involving Steps Performed Only Outside the U.S.
Defendants' motion for summary judgment of noninfringement of plaintiff's wireless device management patent was granted in part as to method claims involving steps performed only by a server in Canada. "Plaintiff concedes that the Method Claims 'are not infringed to the extent that any step of any of these method claims occurs only outside the United States, e.g., at [defendants'] network operations center located outside the United States.' Plaintiff clarifies, however, that its infringement claims are not based on Defendants’ activities in Canada, but rather by Defendants’ alleged performance of 'each of the recited method steps within the United States.'. . . Accordingly, the Court grants Defendants’ . . . Motion and orders that [the asserted method claims] of the [patent-in-suit] are not infringed to the extent any step of these method claims occurs only at Defendants’ NOC located outside of the United States."
The court granted defendant's motion for judgment as a matter of law of no willful infringement of plaintiff's aircraft data transmission patents as to four of the seven patents-at-issue despite the jury's verdict to the contrary. "[W]hile the infringement proceeding revealed that [defendant] acted despite an objectively high likelihood that its actions constituted infringement of a valid patent, there is no evidence to support a finding that [defendant] was subjectively aware of this objectively defined risk at the time the [four] patents were issued and added to the present litigation."
In granting defendant's motion to stay pending reexamination, the court rejected plaintiff's argument that a stay would prejudice plaintiff's rights in that it would delay resolution of the litigation. "[T]his is an ex parte application by Defendant, which means that the Defendant is not permitted to have any further input. The deadlines are all in the control of the Plaintiffs. They are not required to take the maximum time to file the necessary documents or appeals. Any undue delay in the reexamination will not be caused by Defendants."
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In denying defendants' motion for summary judgment on the issue of equitable estoppel, the court found that "[g]enuine issues of material fact exist as to whether [defendants] actually relied on [plaintiff's] action (or inaction), or whether they relied on a belief that the [patents-in-suit] were invalid." Plaintiff offered evidence of several letters drafted by defendants that questioned the validity of the patents. "Defendants characterize these statements as a mere 'initial reaction of [defendant's] business people . . . including their predictable questioning of patent validity and alleged infringement.' . . . Perhaps, but Defendants’ argument is effectively an invitation for the Court to resolve a genuine issue of material fact at the summary judgment stage. Doing so would be inappropriate and premature, particularly given the fact that all reasonable inferences tilt in [plaintiff's] favor."
The court denied defendant's motion to dismiss plaintiff's qui tam false marking action and rejected defendant's argument that marking with the conditional phrase "[X products] are covered by one or more of the following U.S. patents: [#A, #B, #C, #D] and other patents pending," negated an inference of intent to deceive. "Defendant argues that the listing of an expired patent in conjunction with 'at least one nonexpired patent' does not support an inference of an intent to deceive. According to Defendant the conditional language used in its markings defeats any allegation of purposeful intent to deceive the public. Defendant’s argument lacks merit. That Defendant chose to couch its markings in conditional language does not negate the fact that some of the patents listed in the markings were expired. Further, Defendant’s use of conditional language could have the effect of deceiving members of the public into believing that the products were covered by all the patents listed in the markings."
Defendants' renewed motion to stay pending ex parte reexamination was granted because plaintiff amended all of its independent claims during the reexamination proceeding and added new claims in response to the PTO's initial rejection. "[T]he PTO issued an Initial Office Action rejecting all of the [patent-in-suit's] claims in [defendant's] ex parte reexamination. In response, [plaintiff] did not attempt to distinguish the prior art over the original claims; instead, it amended all of the independent claims and added three new claims. . . . Given [plaintiff's] decision to amend its claims in response to the PTO’s Initial Office Action, the [patent-in-suit's] reexamination will result in amended claims with different scope and limitations than the claims currently at issue. . . . Thus, [plaintiff's] substantive claim amendments during reexamination strongly favor staying this litigation. . . Generally, the prejudice of staying [plaintiff's] claims against its direct competitors weighs heavily against a stay; however, [plaintiff's] decision to submit substantive claim amendments during the [patent-in-suit’s] reexamination neutralizes this prejudice. [Plaintiff] is not prejudiced by a stay of patent claims that it is attempting to change."
Defendant's motion for attorneys' fees under 28 U.S.C. § 1927 following summary judgment was denied. "While plaintiff’s conduct at times may have seemed unreasonable, 'carelessly, negligently, or unreasonably multiplying the proceedings is not enough.' Throughout the course of this litigation both counsel have been warned by the Court that unprofessional and unreasonable conduct will not be tolerated."
The court denied defendant's motion for attorneys' fees under 35 U.S.C. § 285. "Plaintiffs requested what appears to be excessive discovery, failed to compromise on minor litigation activities, unreasonably submitted two expert reports without prior designation in contravention of the Court’s scheduling order, and filed a motion for preliminary injunction two years after the product they sought to enjoin had been introduced to the market and then withdrew the motion only after [defendant] filed its response in opposition. As a result of this behavior, [defendant] was required to expend significant time and money on this action that could have been avoided or mitigated. Nevertheless, the Court cannot find by clear and convincing evidence that standing alone plaintiffs’ litigation tactics were exceptional."
Defendant's motion for summary judgment of invalidity was granted because the only asserted claim included the term "optimization" which was insolubly ambiguous. "[B]ecause optimization necessarily involves tradeoffs, a database that is demonstrably inferior to the original data source with respect to the most important characteristics would still be superior with respect to some characteristic and therefore 'optimized.' A competitor would have no way to know whether a process for transforming a data source into a new database led to 'optimization' and would be subject to an infringement suit if the patent holder could locate a single characteristic of the database that is superior to that of the data source."
The court granted defendants' motion for summary judgment of noninfringement because the asserted method claims of plaintiff's internet radio patent required the performance of steps by different actors who were not under common direction or control. "[E]very asserted independent method claim requires that some steps of the method are performed at the server arrangement, while other steps must be performed at the user’s computer. Here, the 'server arrangements' are provided by Defendants, while the accused 'user computing arrangement' - the personal computers used by end-users . . . are not provided by any of the Defendants. . . . [B]ecause the claims require multiple actors to meet the limitations of the accused claims and because there is no dispute that the parties involved do not control or direct each others’ actions or their computers, Defendants are entitled to summary judgment of no infringement on this basis as well."
Defendants' motion to transfer venue was granted where the private and public factors favored transfer. "[Plaintiff] allegedly moved its office to a residential apartment complex in Frisco less than three weeks before this suit was filed. Although [plaintiff] has a long term presence in Texas, its presence in this district 'appears to be recent, ephemeral, and an artifact of litigation.'. . . [One defendant's] headquarters are located in the Northern District of California, and nearly all of [its] relevant documents and employees with knowledge of the accused products can be found in that district. Likewise, the vast majority of [the other defendant's] witnesses and evidence are located in Oregon, which is much closer to the Northern District of California than the Eastern District of Texas. Although [plaintiff] contends that all of its documents are located in this district, the Federal Circuit has indicated that the majority of physical evidence is provided by the accused infringers."
Is Pleading Intent to Deceive upon "Information and Belief" Sufficient to State a Claim for False Marking?
Yes -- Defendant's motion to dismiss plaintiff's qui tam false marking action for failure to state a claim was denied. "[Defendant] challenges the adequacy of the complaint, in part, based on its recurrent use of 'upon information and belief.' Relator’s allegations do not fail on account of their use of these qualifiers. . . . [N]othing in either [Bell Atl. Corp. v. Twombly [550 U.S. 544, 555 (2007)] or [Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)] suggests that pleading based upon 'information and belief' is necessarily deficient. The Court therefore concludes that pleading in this manner is not categorically improper, especially when information lies uniquely within the control of the defendant."
No -- Defendants' motion to dismiss plaintiff's amended qui tam false marking claim for failure to state a claim was granted. "Plaintiff has lengthened its conclusory statements, but still fails to allege any facts or information that support its 'beliefs.' For example, Plaintiff alleges on 'information and belief' that Defendants 'engaged in a strategy of marking patents on their products for the purpose of deceiving the public' and 'purposefully allowed their products to bear the irrelevant patents.' These statements do not give any basis for Plaintiff’s belief that Defendants were employing a strategy or purposefully allowing irrelevant patents. . . . Plaintiff’s statement of facts alleges details which explain why it believes Defendants’ products are mismarked, but contains no information supporting the belief that Defendants were acting with an intent to deceive. Further factual detail is needed to survive a motion to dismiss under Rule 9(b)."
Plaintiff's motion for summary judgment to preclude defendant from challenging the validity of two patents-in-suit based on prior art asserted in a related case was granted as to obviousness but not anticipation. "'While it is commonly understood that prior art references that anticipate a claim will usually render that claim obvious, it is not necessarily true that a verdict of nonobviousness forecloses anticipation. The tests for anticipation and obviousness are different.'. . . The [jury in the earlier case] was not asked to render a verdict with respect to [defendant's] anticipation defense; nor was this Court asked to reach such a judgment. Therefore, [defendant's] anticipation defenses were not 'actually litigated' and issue preclusion does not apply."
Defendant's motion for summary judgment of invalidity due to prior invention was granted. "[T]he Federal Circuit has recognized that a prior inventor need not always have appreciated every feature recited in a patent claim in order to have conceived of or reduced to practice the claimed invention. . . . In view of the fact that the earlier-made CRESTOR® product formulations have been shown to meet all limitations of the asserted [patent] claims (by virtue of [defendant's] limited concession of infringement), [plaintiff's] discovery that crospovidone contributes to the stability of the formulations resembles the sort of scientific explanation for a prior art composition’s functioning that the Federal Circuit has found to be an inherent property of the prior art in other cases. The discovery of this inherent property does not make the pharmaceutical compositions claimed by [plaintiff] -- which [defendant] undisputedly made first -- new."
The court denied plaintiff's renewed motion for judgment on the pleadings as to defendants' defense of failure to mitigate. "Plaintiff argues that failure to mitigate damages is not a defense in a patent infringement case because it cannot find any case law discussing this defense in the context of patent infringement and certain treatises on patent law do not discuss it. Plaintiff also argues that this 'makes sense because . . . a patent holder has no recourse when faced with an infringer but to seek a license and, if one is declined to sue for infringement.' The Court finds these arguments are without merit. . . . Here, Plaintiff is the injured party seeking compensatory damages for the alleged patent infringement. In determining compensatory damages for patent infringement under 35 U.S.C. § 284, the focus is on compensating the patentee or the plaintiff for this injury. . . . Thus, it is entirely appropriate for a defendant to assert a defense of failure to mitigate damages when considering what amount of compensation is appropriate for Plaintiff, the injured party in this action. Such a defense may rarely be relevant in a patent infringement case, but it is not inappropriate."
IMX, Inc. v. E-Loan, Inc. et al., 1-09-cv-20965 (FLSD November 1, 2010, Order) (Martinez, J.).
Plaintiff's motion to dismiss plaintiff's inequitable conduct counterclaim was granted and defendant was ordered to file a counterclaim that complied with the pleading requirements of FRCP 9(b). "[Defendant], inter alia, has not sufficiently identified the individuals involved or the information withheld and why it was material, nor has it alleged sufficient facts to support [plaintiff's] deceptive intent."
Teva Women's Health, Inc. v. Lupin, Ltd. et al., 2-10-cv-00080 (NJD October 27, 2010, Order) (Hochberg, J.).
Defendant's motion to dismiss plaintiff's claim of inequitable conduct for failing to plead with particularity was granted. "[Plaintiff's] pleading fails to 'identify which claims, and which limitations in those claims, the withheld references are relevant to.' [Plaintiff's] pleading also does not 'identify the particular claim limitations, or combination of claim limitations, that are supposedly absent from the information of the record,' which are 'necessary to explain both "why" the withheld information is material and not cumulative, and "how" an examiner would have used this information in assessing the patentability of the claims.'"
TiVo Inc. v. Verizon Communications, Inc., 2-09-cv-00257 (TXED October 28, 2010, Order) (Folsom, J.).


text:
Bob Presley shares his info on the William (Wilson) Valentine Presley family with us.
If you have photos from this family, he'd love to hear from you.
Bushville could be confused with where he later lived, “Bushville Homer GA”, and died July 15, 1904.
in Banks Cty, GA, USA1.  She was born May 1837 in SC, USA, and died August 31, 1921.
was Jimmy Ford, his wife died in Arkansas.
Military service: Served with the FL Reserves, Co A, 1st Reg.
had the last name Wilson.
somewhere in his family, A Presley had married into the family.
I have not been able to confirm anything further.
William Valentine Presley served in the Florida Confederacy Reserves.
2.	i.	BERMAN(BARYMAN) JERREL2 PRESLEY, b. March 31, 1858; d. May 07, 1910.
ii.	CHRISTINA C. (TINA) PRESLEY, b. February 29, 1860; m. ?? PITMAN.
3.	iii.	SARAH AVERILLA PRESLEY, b. October 10, 1862, Tenn, USA; d. September 18, 1925, Banks Cty, GA, USA.
4.	iv.	JOHN CAHON PRESLEY, b. 1864.
v.	WILLIE (WILLIAM) V PRESLEY, b. April 25, 1866.
5.	vi.	ROBERT LEE(BOB) PRESLEY, b. November 10, 1870.
vii.	SALLIE2 PRESLEY, b. April 04, 1873.
6.	viii.	WILBURN DEVOUS(BUNK) PRESLEY, b. March 1874, GA,  USA; d. 1948.
7.	ix.	JUDGE D.(MUNK OR JUD) PRESLEY, b. January 11, 1880.
2.  BERMAN(BARYMAN) JERREL2 PRESLEY (WILLIAM (WILSON) VALENTINE1) was born March 31, 1858, and died May 07, 1910.
Jackson Cty, GA, USA, and died November 09, 1906.
8.	i.	LOLA LEE3 PRESLEY, b. October 31, 1888, Gwninett Cty, GA, USA; d. April 25, 1979.
9.	ii.	EDNA MOENNER PRESLEY, b. August 14, 1891; d. July 10, 1972.
10.	iii.	ADDIE ARMEADOW PRESLEY, b. February 26, 1893; d. March 02, 1960.
11.	iv.	HOMER VALENTINE PRESLEY, b. January 24, 1895; d. September 14, 1972.
12.	v.	GEORGE THEDORE PRESLEY, b. December 14, 1900, Barrow Cty, GA, USA; d. November 19, 1972.
13.	vi.	JEWELL MAHALA PRESSLEY, b. April 26, 1903; d. February 09, 1996, Winder, Barrow, Cty, GA, USA.
14.	vii.	RALPH LEE PRESLEY, b. October 03, 1906, Winder, Barrow, Cty, GA, USA; d. June 09, 1975.
Jackson Cty, GA, USA; m. EARLY ANDREW ELROD, March 13, 1914.
in Jackson Cty, GA, USA3.  She was born 1865, and died 1895.
i.	PEARL L.3 PRESLEY, b. August 04, 1886; m. RICH MORRIS.
15.	ii.	ALMA E. PRESLEY, b. April 30, 1888.
16.	iii.	SARA ETHEL PRESLEY, b. March 13, 1891.
17.	iv.	DAISY DELL PRESLEY, b. June 02, 1893; d. 1977.
5.  ROBERT LEE(BOB)2 PRESLEY (WILLIAM (WILSON) VALENTINE1) was born November 10, 1870.  He married (1) VIVIAN.
18.	i.	LEVI WELDON3 PRESLEY, d. January 12, 1976.
19.	ii.	WILSON V. PRESLEY.
6.  WILBURN DEVOUS(BUNK)2 PRESLEY (WILLIAM (WILSON) VALENTINE1) was born March 1874 in GA,  USA, and died 1948.
September 02, 1883 in GA,  USA, and died 1965.
21.	i.	ADDIE MONTIEN3 PRESLEY, b. November 02, 1896, GA,  USA.
ii.	JESSIE PAULIN PRESLEY, b. December 03, 1900, GA,  USA; d. 1954.
iii.	WILLIAM JACKSON HALL PRESLEY, b. July 04, 1898; d. July 04, 1898.
Burial: Webbs Creek Church, Homer, Banks Cty, GA, USA????
Hospital, Hall Cty, GA, USA.
v.	MILDRED EUERA PRESLEY, d. 1904.
23.	vi.	OPHELIA PRESLEY, b. December 04, 1909, GA,  USA; d. February 02, 1992.
vii.	ROSE PEARL PRESLEY, b. May 05, 1918; m. ODIS LACEY.
viii.	SUSAN EMLY(SUSIE) PRESLEY, b. February 13, 1906, GA,  USA; m. ? OWENS.
ix.	VIVIAN PEARL PRESLEY, b. May 30, 1908; d. January 22, 1909.
24.	x.	WILTON DEVORIN PRESLEY, b. April 13, 1912; d. September 24, 1999.
xi.	JAMES MILLON(JIM) PRESLEY, b. August 09, 1914.
25.	xii.	ROBERT LEE(BOB) PRESLEY, b. June 26, 1920, Banks Cty, GA, USA; d. September 01, 1994.
xiii.	JOHN MARVIN PRESLEY, b. June 05, 1923.
xiv.	QUINTON BELIVE PRESLEY, b. July 25, 1927.
7.  JUDGE D.(MUNK OR JUD)2 PRESLEY (WILLIAM (WILSON) VALENTINE1) was born January 11, 1880.  He married OMIE E..
She was born June 18, 1842, and died October 22, 1956.
26.	i.	M. E.3 PRESLEY, b. April 04, 1912.
Cty, GA, USA, and died April 25, 1979.  She married EDDIE A. CRAFT.  He was born 1883, and died 1944.
i.	MARGRETTE4 CRAFT, b. 1908; d. 1984.
ii.	W.B. CRAFT, b. June 05, 1909; d. November 20, 1911.
Tombstone: _ _ THE LAY _ BLOSOM?
27.	iii.	ERNEST B. CRAFT, b. August 29, 1913; d. December 28, 2002, Clarke Cty, GA.
iv.	CARL LOLLIS CRAFT, b. February 05, 1918; d. February 26, 1918.
28.	v.	NEIL CRAFT, b. 1922.
i.	PERRY WILLIE4 HELTON, b. June 12, 1910; d. October 27, 1912.
January 22, 1884 in GA,  USA, and died January 28, 1968.
i.	TALMADGE4 HELTON, b. May 09, 1910; d. February 14, 1986; m. SYBIL KESLER; b. March 26, 1912.
29.	ii.	HORACE HELTON, b. March 26, 1913; d. September 08, 1985.
30.	iii.	ROBERT B . (R.B. ) HELTON, JR., b. June 13, 1918, Barrow Cty, GA, USA; d. September 08, 1967.
Hart Cty, GA, USA; b. December 20, 1920, Hartwell GA, USA.
31.	v.	JOE ALLEN HELTON, b. February 18, 1926, Barrow Cty, GA, USA.
died September 14, 1972.  He married ANNIE BLONDINE KESLER July 25, 1925.  She died June 08, 1989.
32.	i.	BILLIE JEAN4 PRESLEY, b. November 06, 1929.
Barrow Cty, GA, USA, and died November 19, 1972.  He married LOTTIE PANNELL February 25, 1926 in Winder, Barrow Cty, GA.
She was born February 26, 1903, and died October 12, 1973.
33.	i.	BETTY JEAN4 PRESLEY, b. July 28, 1928.
USA, and died September 18, 1981 in Athens, Clarke Cty, GA, USA.
34.	i.	DOROTHY FRANCES4 PEPPERS, b. February 16, 1931, Winder, Barrow, GA.
February 06, 1909, and died October 26, 1996.
37.	i.	RALPH LEE (R.L.)4 PRESLEY, JR., b. July 04, 1930.
15.  ALMA E.3 PRESLEY (JOHN CAHON2, WILLIAM (WILSON) VALENTINE1) was born April 30, 1888.  She married ROB MORRIS.
16.  SARA ETHEL3 PRESLEY (JOHN CAHON2, WILLIAM (WILSON) VALENTINE1) was born March 13, 1891.  She married BILL WARD.
He was born August 16, 1894 in Gainseville, Hall Cty, GA, USA, and died January 14, 1965.
i.	JOHN4 WARD, m. ?? NUNN.
39.	ii.	RUBY WARD, b. January 24, 1914, Livonia, GA, USA.
17.  DAISY DELL3 PRESLEY (JOHN CAHON2, WILLIAM (WILSON) VALENTINE1) was born June 02, 1893, and died 1977.
(2) JAVOUS BUSH (UNCLE DOC)LAY.  He was born May 19, 1864, and died October 01, 1940.
40.	i.	HORACE4 AUSTIN, b. August 05, 1909; d. April 20, 1993.
ii.	ETHEL JOSEPHINE AUSTIN, b. January 30, 1913; d. June 29, 1930.
41.	iv.	REBA4 LAY, b. May 12, 1915, Barrow Cty, GA, USA; d. February 04, 1994.
18.  LEVI WELDON3 PRESLEY (ROBERT LEE(BOB)2, WILLIAM (WILSON) VALENTINE1) died January 12, 1976.  He married REBA.
19.  WILSON V.3 PRESLEY (ROBERT LEE(BOB)2, WILLIAM (WILSON) VALENTINE1)  He married INA.
ii.	WILSON V. PRESLEY, JR..
GA,  USA.  She married ?? MORGAN.
43.	i.	HUTCHERSON C.4 MORGAN.
Jackson Cty, GA, USA, and died March 24, 1987 in Lanier Park Hospital, Hall Cty, GA, USA.  She married ? MURRAY.
i.	BOBBIE LOU4 MURRAY, m. ? HAYES.
ii.	MARY SUE MURRAY, m. ? MEEKS/.
GA,  USA, and died February 02, 1992.  She married CLINTON GAILEY.
i.	PEGGY JO4 GAILEY, m. ? PAUL.
ii.	BETTY ANN GAILEY, m. ? COBB.
iii.	BEVERLY G. GAILEY, m. ?LORD.
and died September 24, 1999.  He married ROBIN LOUISE HOPE June 04, 1932 in Maysville, Banks Cty, GA,  USA.
She was born May 23, 1911.
44.	i.	HERMAN KENNETH4 PRESLEY, b. June 23, 1933.
45.	ii.	HELEN VENNETTE PRESLEY, b. April 03, 1935.
Banks Cty, GA, USA, and died September 01, 1994.  He married EVA VIVIAN ARIAIL.
ii.	RICHARD LEE PRESLEY, m. SHARON ELISE DAVIS, Talmo Baptist Church, Banks Cty, GA, USA.
26.  M. E.3 PRESLEY (JUDGE D.(MUNK OR JUD)2, WILLIAM (WILSON) VALENTINE1) was born April 04, 1912.
August 29, 1913, and died December 28, 2002 in Clarke Cty, GA.  He married LUCY PASS.  She was born 1914.
28.  NEIL4 CRAFT (LOLA LEE3 PRESLEY, BERMAN(BARYMAN) JERREL2, WILLIAM (WILSON) VALENTINE1) was born 1922.
She married HAROLD EVERETT.  He was born 1925, and died 1974.
was born June 13, 1918 in Barrow Cty, GA, USA, and died September 08, 1967.  He married KATHLEEN MABREY.
She was born September 09, 1920, and died August 31, 2007.
48.	i.	RANDALL5 HELTON, b. January 31, 1954.
ii.	JEFFERY ALLEN HELTON, b. May 31, 1959; d. December 22, 1986.
was born March 25, 1927 in Barrow Cty, GA, USA.
i.	KATHI LYNN5 HELTON, b. November 22, 1955, Clarke Cty, GA, USA.
November 06, 1929.  She married JOSEPH ALLISON(JOE) CARLYLE July 22, 1950.
i.	DAVID ALLISON5 CARLYLE, b. September 17, 1956; m. SUSAN HARRIS, July 25, 1987.
ii.	MARY DENISE CARLYLE, b. September 17, 1956; m. LARRY COLLINS, August 11, 1984.
49.	iii.	JOHN MELVIN CARLYLE, b. August 29, 1957.
May 10, 2001 in Athens, Clarke Cty, GA, USA.
50.	i.	PATRICIA(PATSY)5 STAFFORD, b. June 28, 1947.
51.	ii.	GEORGE EDWARD(EDDIE) STAFFORD, b. April 15, 1953, Athens, Clarke Cty, GA, USA.
Barrow Cty, GA, son of LLOYD THOMAS and GLADYS PRICKETT.  He was born March 16, 1931 in ?, ?, GA.
53.	ii.	BRENDA DIANNE THOMAS, b. November 06, 1952, Winder, Barrow, GA, USA.
54.	iii.	DEBORAH FRANCES THOMAS, b. March 01, 1954, Winder, Barrow, Cty, GA, USA.
Winder, Barrow, Cty, GA, USA.
55.	v.	DANNY WAYNE THOMAS, b. October 03, 1958, Winder, Barrow, Cty, GA, USA.
was born February 16, 1932 in Winder, Barrow, Cty, GA, USA, and died September 04, 1996 in Clarke Cty, GA, USA.
He married VIOLA VENSON RICHARDSON October 27, 1954.  She was born October 15, 1929.
56.	i.	REBECA ANN5 PEPPERS, b. August 31, 1956, Winder, Barrow, Cty, GA, USA.
57.	ii.	RICKY DEAN PEPPERS, b. November 15, 1957, Winder, Barrow, Cty, GA, USA.
58.	iii.	CAROL LOUISE PEPPERS, b. June 13, 1959.
59.	iv.	PATRICA ANNETTE PEPPERS, b. August 17, 1963, Winder, Barrow, Cty, GA, USA.
was born July 25, 1925 in Winder, Barrow, Cty, GA, USA, and died February 18, 1999 in Winder, Barrow, Cty, GA, USA.
February 18, 1999 in Winder, Barrow, Cty, GA, USA.
60.	i.	STEVEN JAMES5 PIERCE, b. July 09, 1952, Winder, Barrow, Cty, GA, USA.
Athens, Clarke Cty, GA, USA.
born July 04, 1930.  He married ALICE PARISH.  She was born October 01, 1933.
62.	i.	JULIE5 PRESLEY, b. November 14, 1957.
63.	ii.	RALPH LEE(LEE) PRESLEY III, b. July 21, 1961.
iii.	CAROL PRESLEY, b. February 24, 1959.
38.  LIBBY4 MORRIS (ALMA E.3 PRESLEY, JOHN CAHON2, WILLIAM (WILSON) VALENTINE1)  She married JOHN IVEY.
in Livonia, GA, USA.  She married JAMES MARICE NUNN.  He was born December 09, 1905.
64.	i.	JAMES M.(JIMMY)5 NUNN, JR., b. February 04, 1933.
ii.	SARA PATRICIA NUNN, m. ? SMITH.
and died April 20, 1993.  He married CYNTHIA MCCANTON.
December 31, 1910, and died October 02, 1969.
i.	CHARLES HUBERT5 HENSON, JR..
42.  SARA4 LAY (DAISY DELL3 PRESLEY, JOHN CAHON2, WILLIAM (WILSON) VALENTINE1)  She married JOHN COPAS.
65.	i.	WILLIAM KENNETH5 MORGAN.
born June 23, 1933.  He married JOANNE MCLEJOY September 10, 1955.  She was born August 23.
i.	BRENDA LEE5 PRESLEY, b. Superior, Wisc, USA.
born April 03, 1935.  She married RALPH L. MOONEY.
iii.	RONNIE GLYN MOONEY, b. November.
iv.	DARYL WAYNE MOONEY, b. May 04.
She married WALTER WAYNE GLASS.
ii.	WALTER WAYNE GLASS, JR..
was born January 31, 1954.  He married DEBBIE LAWSON.
ii.	JEROMY HELTON, d. June 16, 2000.
was born August 29, 1957.  He married BARBARA SIMMONS April 17, 1984.
i.	JOSEPH MARTIN (JOEY)6 CARLYLE, b. November 12, 1985.
ii.	JAMES ROBERT CARLYLE, b. November 02, 1990.
ROYAL HARDEGREE and MARGARET DANIEL.  He was born January 12, 1943.
69.	i.	HARRIS TRAVIS6 HARDEGREE, b. June 23, 1971.
ii.	KRISTEN PATRICIA(KRISTY) HARDEGREE, b. July 16, 1983, Athens, Clarke Cty, GA, USA.
June 08, 1978 in McIntosh Cty, GA, USA.  She was born April 03, 1951 in Brunswick, Glenn Cty, GA, USA.
i.	JARRETT EDWARD6 STAFFORD, b. January 19, 1982, Winder, Barrow, Cty, GA, USA.
ii.	JUSTIN DANIEL STAFFORD, b. September 18, 1983, Athens, Clarke Cty, GA, USA.
iii.	CASSIE JO LYNN STAFFORD, b. March 19, 1985, Winder, Barrow, Cty, GA, USA.
Monroe, Walton Cty, GA , USA.  She was born July 30, 1956 in Monroe, Walton Cty, Ga, USA.
Bethlehem Methodist Church, Bethlehem, Barrow Cty, GA, USA.
iii.	JOSHUA JAMES THOMAS, b. August 28, 1982, Walton, Cty, GA, USA.
ELLEN WILBURN.  He was born March 31, 1950 in Athens, Clarke, GA, USA.
June 17, 2007, Hazelhurst House, McDounough, GA, Henry Cty, GA; b. October 01, 1980, Athens, Clarke Cty, GA, USA.
JERREL2 PRESLEY, WILLIAM (WILSON) VALENTINE1) was born March 01, 1954 in Winder, Barrow, Cty, GA, USA.
JOHN HARDEGREE and LOUISE MORROW.  He was born March 27, 1947 in Winder, Barrow, Cty, GA, USA.
i.	JOHN SANFORD6 HARDEGREE III, b. September 20, 1976, Northside Hospital, Atlanta, GA, USA.
ii.	HALEY ANNA HARDEGREE, b. October 12, 1984, Northside Hospital, Atlanta, GA, USA.
JERREL2 PRESLEY, WILLIAM (WILSON) VALENTINE1) was born October 03, 1958 in Winder, Barrow, Cty, GA, USA.
He married KATHY HAYNIE CLEGG May 05, 1995 in Gatlinburg, TN USA.  She was born July 31, 1962.
i.	SCOTTIE6 CLEGG, b. January 06, 1981, Walton Cty, GA, USA.
ii.	KATIE CLEGG, b. October 02, 1984, Walton Cty, GA, USA.
(1) JOHNNY RAY WALLS.    She married (2) STEVE CRIMMENS.
i.	STEPHEN6 CRIMMENS, b. November 14, 1990.
(1) SHEILA WOOD, daughter of ALLEN WOOD and DOT ??.  She died February 10 in Athens, Clarke Cty, GA, USA.
He married (2) MARHSA WEHUNT.  She was born March 25.  He married (3) MARSHA WEHUNT.
Church, Winder, Barrow Cty, GA ,USA; b. May 02.
ii.	MIRANDA6 PEPPERS, b. November 10, 1982.
September 08, 1954.  She married (2) KEVIN O'DONNELL.  He was born September 25.
i.	KATLIN BROOKE6 O'DONNELL, b. September 16, 1996.
ANTHONY HOWARD (TONY) GENTRY 1983.  He was born August 27.
i.	ZACHARY RYAN6 GENTRY, b. April 17, 1992.
ii.	WESLEY LOGAN GENTRY, b. April 26, 1994.
THERSA SKINNER December 23, 1970.  She was born July 21, 1954.
70.	i.	GARY6 PIERCE, b. May 07, 1971.
71.	ii.	SHELLY PIERCE, b. April 27, 1978.
in Athens, Clarke Cty, GA, USA.  She married GARY RUSSELL RUTLEDGE May 26, 1973 in Wallha, SC, USA.
He was born January 15, 1953 in Winder, Barrow, Cty, GA, USA.
72.	i.	BRANDI LYNN6 RUTLEDGE, b. February 27, 1977, Dekalb County, GA, USA.
was born November 14, 1957.  She married WILLIAM(BILL) GILLESPIE.  He was born November 10, 1947.
i.	HUNTER6 GILLESPIE, b. August 18, 1984.
ii.	MAHALA HAYLEY GILLESPIE, b. April 26, 1986.
iii.	HANNAH GILLESPIE, b. October 23, 1987.
iv.	CATLIN " HOPE" GILLESPIE, b. October 30, 1989.
v.	HART GILLESPIE, b. July 09, 1991.
vi.	HALL GILLESPIE, b. March 29, 1994.
WILLIAM (WILSON) VALENTINE1) was born July 21, 1961.  He married WENDY GRIFFIN.  She was born May 30, 1964.
i.	TAYLOR A'LICE6 PRESLEY, b. November 26, 1992.
ii.	ALEX LEE PRESLEY, b. July 16, 1994.
iii.	ZACHARY LEE PRESLEY, b. July 16, 1994.
WILLIAM (WILSON) VALENTINE1) was born February 04, 1933.  He married JANET M. MCGIBONY.
She was born February 03, 1934.
i.	JAMES DENNIS6 NUNN, b. May 23.
ii.	KATHERINE DENICE B. NUNN, b. February 06; m. RODNEY BUTTS.
WILLIAM (WILSON) VALENTINE1)  He married LORAINE MAXWELL.
WILLIAM (WILSON) VALENTINE1)  She married TODD HAMILTON.
i.	KALLIE MCKENZIE7 HAMILTON, b. December 15, 1999, Gwinett Med Ctr, Gwinett Cty, GA, USA.
WILLIAM (WILSON) VALENTINE1)  He married STEPHANIE.
BERMAN(BARYMAN) JERREL2, WILLIAM (WILSON) VALENTINE1) was born June 23, 1971.  He married SUSAN TOOLE.
She was born January 02, 1973.
i.	TAYLOR BROOKE7 HARDEGREE, b. September 10, 1997.
daughter of GARY WRIGHT and PENNY BARRON.  She was born February 27.
i.	GRAYSON7 PIERCE, b. January 31, 1999.
JERREL2 PRESLEY, WILLIAM (WILSON) VALENTINE1) was born April 27, 1978.  She married (1) JEROMY PIERCE.
She married (2) DON GRADEN.
i.	KYLIE SAVANNAH7 PIERCE, b. December 09, 1995.
ii.	TYBEE BAY7 PIERCE, b. December 13, 2005.
BERMAN(BARYMAN) JERREL2 PRESLEY, WILLIAM (WILSON) VALENTINE1) was born February 27, 1977 in Dekalb County, GA, USA.
She married JAMES WESLEY (BO) KING, JR.  He was born January 30, 1974 in Winder, Barrow, Cty, GA, USA.
i.	KRISTIN LYNN7 KING, b. January 14, 1995, Winder, Barrow, Cty, GA, USA.
ii.	JAMES RUSSELL (JIMMY) KING, b. May 14, 1996, Winder, Barrow, Cty, GA, USA.
iii.	CHRISTOPHER BRANDON KING, b. June 04, 1998, Winder, Barrow, Cty, GA, USA.
1.  Banks County Marriage Book Page 178.
2.  Family Search Ancestral File (AFN: 1DZX-D9M).

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text:
Between 2007 and 2009, Italy and Libya (then under the rule of Colonel Muammar el-Qaddafi) concluded several agreements to combat clandestine immigration. Pursuant to these agreements, Italy instated a policy of sending undocumented migrants and asylum seekers who had crossed the Mediterranean Sea from Africa back to Libya. In a number of cases, boats were intercepted on the high seas, and those on board were taken back to Libya without a prior individualized assessment of their situation and protection needs.
On February 23, 2012, the European Court of Human Rights issued a landmark judgment in the case of Hirsi Jamaa et al. v. Italy against such âpush backâ operations. The case concerned a group of Somali and Eritrean nationals who tried to reach Europe in May 2009. Italian coast guard and customs vessels intercepted their boats on the high seas, thirty-five nautical miles south of the island of Lampedusa. On board Italian vessels, the men were taken back to Libya, from where they had originally embarked, and handed over to the Libyan authorities.
The Grand Chamber of the European Court, which dealt with the case due to its importance, held that Italy had violated the European Convention on Human Rights and awarded each applicant EUR 15,000 in compensation. The seventeen judges unanimously ruled that Italy had breached its obligation to protect the applicants from torture and inhuman or degrading treatment (Article 3 of the European Convention) as well as the prohibition of collective expulsion of non-nationals (Article 4 of Protocol No. 4 to the European Convention), even though the applicants never reached Italian territorial waters.
The Court thereby clarified and strengthened the extraterritorial protection offered by international human rights law in two important respects.
Under international human rights law, no one may be expelled if substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to torture, inhuman or degrading treatment or comparably serious human rights violations. This principle, known as the principle of non-refoulement, finds its parallel under international refugee law in Article 33 of the 1951 Convention Relating to the Status of Refugees (â1951 Refugees Conventionâ) and its 1967 Protocol, prohibiting states from âexpel[ling] or return[ing] (refouler)â refugees to places where their lives or freedoms would be threatened.
The United Nations High Commissioner for Refugees (âUNHCRâ) has long taken the position that the principle of non-refoulement also applies where refugees and others in need of international protection are under the effective control of a state acting outside its territory or territorial waters. UNHCR made this point as an intervening third party in the Hirsi case.
This position contrasts with that of the U.S. Supreme Court, which held in the controversial 1993 judgment of Sale vs. Haitian Centers Council that the Refugee Conventionâs prohibition of non-refoulement did not apply extraterritorially. On this basis, the Supreme Court upheld the practice of the U.S. Coast Guard intercepting Haitians outside U.S. territorial waters and repatriating them directly to a country engulfed in violent turmoil.
In its judgment, the European Court effectively aligns itself with UNHCRâs position by applying its established jurisprudence that a state is bound to respect the rights under the European Convention (and hence also the principle of non-refoulement flowing from these rights) where the state has established effective control and authority outside its territory.
The Court ruled that Italy had exercised both de jure and de facto control over the applicants from the moment they were taken aboard Italian ships. According to the long settled rules of the international law of the sea, the Court observed, anyone on board the Italian ships was legally subject to the exclusive jurisdiction of Italy, the vesselsâ flag state. Noting that the events took place entirely on board of ships of the Italian armed forces, with crews composed of Italian military personnel, the Court also held that Italy exercised de facto control over the applicants, thereby rejecting the Italian governmentâs argument that they had merely rescued the applicants on the high seas and thus exercised only minimal control.
The findings of the Court on the extraterritorial scope of the principle of non-refoulement have implications that extend beyond the case of non-nationals intercepted on the high seas. The judgment implies, for instance, that people who stow away on ships must be protected from refoulement by the flag state, at least as soon as they reach the high seas, where the flag state enjoys exclusive jurisdiction and hence de jure control.
Perhaps even more importantly, the judgment provides further support for the position that people who take refuge in embassies to escape persecution or other serious human rights violations must not be subjected to refoulement by the state to whom the embassy belongs. Indeed, Judge Pinto de Albuquerqueâs concurring opinion in Hirsi specifically draws this conclusion. Like a ship on the high seas, embassy grounds constitute an island of almost exclusive jurisdiction located outside the territory of the embassy state. The embassy state therefore has de jure and de facto effective control over the embassy ground, and it remains fully bound by the prohibition of torture under the European Convention and the prohibition of refoulement flowing from it.
Insisting on the ordinary sense of the word âexpulsion,â Italy strenuously argued that only a person who had actually reached the stateâs territory could be subject to expulsion. The prohibition of collective expulsion, Italy advanced, only came into play when individuals already within the territory of a state, or those who had crossed the national border illegally, were expelled. Conversely, the applicants took the position that pushing back migrants on the high seas could constitute hidden expulsions. They also noted that Italian law considered ships flying the Italian flag to be Italian territory, which implied that removing the applicants from the Italian coast guard vessels was tantamount to expelling them from Italian territory.
The United Nations High Commissioner for Human Rights expanded on both arguments made by the applicants in her brief as an intervening party in the case. In particular, the High Commissioner invoked the principle of good faith and insisted that a state should not be allowed to circumvent the obligation not to collectively expel non-nationals simply by advancing its interception operations to the high seas.
the purpose of Article 4 of Protocol No. 4 is to prevent States being able to remove certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority. If, therefore, Article 4 of Protocol No. 4 were to apply only to collective expulsions from the national territory of the States Parties to the Convention, a significant component of contemporary migratory patterns would not fall within the ambit of that provision, notwithstanding the fact that the conduct it is intended to prohibit can occur outside national territory and in particular, as in the instant case, on the high seas.
The Courtâs findings on collective expulsion reinforce those relating to non-refoulement. While the principle of non-refoulement imposes primarily an obligation of result (requiring that people are not transferred to places where their lives and freedoms are at risk), the prohibition of collective expulsion under international law imposes a duty of due process in that it requires an examination of each applicantâs individual situation. Push back operations without such individualized assessment are therefore generally illegal, regardless of where the victims are pushed back (e.g., a place like Libya under Qaddafi rule or another, more secure state). This implication is significant as Italy and other European states are currently negotiating new agreements to combat clandestine migration with the emerging democracies on the southern rim of the Mediterranean Sea.
In a climate of increasingly stringent migration control measures, the Hirsi judgment sends an important signal for the protection of the human rights of migrants, refugees, and asylum seekers. The decision can be expected to have a jurisprudential impact beyond the reach of the European Convention, because the two principles it rests onâthe principle of non-refoulement and the prohibition of collective expulsionâhave both attainted the status of customary international law and therefore apply across the world.
Australian politicians have already cited the judgment in criticizing Australiaâs own push-back policies. It remains to be seen whether the U.S. Supreme Court will be willing to revisit its interpretation of the principle of non-refoulement, which is more restrictive than that adopted by the European Court in the Hirsi case.
Jan Arno Hessbruegge, Human Rights Officer for Legal Advocacy in the Executive Office of the High Commissioner for Human Rights, worked on the intervenerâs brief submitted by the High Commissioner in the case of Hirsi Jamaa et al. v. Italy. The article is submitted in a personal capacity, and, unless specifically indicated, the views expressed do not necessarily reflect those of the High Commissioner or the United Nations. The author thanks Paul Oertly for his comments on the initial draft.
 Hirsi Jamaa v. Italy, App. No. 27765/09 (Eur. Ct. H.R. Feb. 23, 2012).
 Article 43 of the European Convention on Human Rights provides that the Grand Chamber âshall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance.â See Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953).
 In addition, the Court found a violation of the right to an effective remedy (Article 13 of the European Convention) read in conjunction with the cited provisions. See Hirsi Jamaa, supra note 1, Â¶ 270.
 United Nations Human Rights Committee, General Comment No. 20, U.N. Doc. CCPR/C/21/Rev.1/Add. 13, Â¶ 12 (May 26, 2004); Soehring v. United Kingdom, 161 Eur. Ct. H.R. (ser. A), Â¶Â¶ 90-91 (1989); see also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987).
 See Convention Relating to the Status of Refugees art. 33 (1), July 28, 1951, 189 U.N.T.S. 137 (entered into force Apr. 22, 1954).
 U.N. High Commâr for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations Under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Jan. 26, 2007), http://www.unhcr.org/refworld/pdfid/45f17a1a4.pdf; see also Haitian Centre for Human Rights v. United States, Case No. 10.675, Inter-Am. Commân H.R., Report No. 51/96, OEA/Ser.L/V/II.95 Doc. 7 rev., at 550, Â¶ 157 (1997).
 Submission by the Office of the United Nations High Commissioner for Refugees in the Case of Hirsi and Others v. Italy, App. No. 27765/09 (Eur. Ct. H.R. Feb. 23, 2012), available at http://www.unhcr.org/refworld/pdfid/4d92d2c22.pdf.
 Sale v. Haitian Centers Council, 509 U.S. 155 (1993).
 Hirsi Jamaa, supra note 1, Â¶Â¶ 76-82.
 Id. Â¶Â¶ 146-58 (citing Â¶ 151).
 Id. (Pinto de Albuquerque, J., concurring).
 See also Sale, 509 U.S. 191-93 (Blackmun, J., dissenting).
 See United Nations Convention on the Law of the Sea art. 92 (1), Dec. 10, 1982, 1833 U.N.T.S. 3.
 See Hirsi Jamaa, supra note 1; see also Al-Saadoon & Mufdhi v. United Kingdom, App. No. 61498/08, 49 I.L.M. 764, Â¶ 139 (2010) (obiter dicta).
 See Vienna Convention on Diplomatic Relations art. 22, Apr. 18, 1961, 23 U.N.T.S. 3227 (stating that the onlyâfrom a human rights perspective immaterialâdifference lies in the fact that the embassy grounds remain on the territory of the state from which the victim seeks protection).
 Hirsi Jamaa, supra note 1, Â¶ 185.
 Id. Â¶ 164. For the full text, see Intervener Brief Filed on Behalf of the U.N. High Commâr for Human Rights, Hirsi Jamaa v. Italy, App. No. 27765/09 (Eur. Ct. H.R. Feb. 23, 2012), available at http://ohchr.org/EN/Issues/Migration/Pages/StudiesAndReports.aspx.
 Hirsi Jamaa, supra note 1, Â¶Â¶ 173-75.
 See Rep. of the Intâl Law Commân, May 7- June 5, July 9-Aug. 10, 2007, Â¶ 199 (n.400, draft art. 7 (2)), U.N. Doc. A/62/10; GAOR 59th Sess. (2007), available at http://untreaty.un.org/ilc/reports/2007/english/chp7.pdf.
 Bankovic v. Belgium, App. No. 52207/99, ECHR 2001-XVII (2001) (finding inadmissible claims of Serbian victims of NATO bombings during the Kosovo war given that the alleged violations occurred outside the territory of those states carrying out the bombings and those states never established effective control over the victims).
 Hirsi Jamaa, supra note 1, Â¶ 178; see also Medvedyev v. France, App. No. 3394/03, Â¶ 81 (Eur. Ct. H.R. Mar. 29, 2010).
 See U.N. High Commâr for Refugees, supra note 6; see also U.N. High Commâr for Human Rights, supra note 20.
 Kirsty Needham, Court Rules Against âTurn Back the Boatsâ Policy, Sydney Morning Herald (Feb. 25 2012), http://www.smh.com.au/national/court-rules-against-turn-back-the-boats-policy-20120224-1tti3.html.

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text:
Appeal from the Circuit Court, Bay County, N. Russell Bower, J.
Robert B. Staats, Panama City, for appellant.
Carroll L. McCauley, Panama City, and Elliot Zisser, Jacksonville, for appellee.
Appellant (the former wife) seeks review of a final order reducing the amount of her monthly permanent alimony by more than one-third, and denying her request that appellee (the former husband) be required to pay some or all of her attorney fees and costs. As to both issues, we conclude that the order constitutes an abuse of discretion. Accordingly, we reverse.
The amount of permanent periodic alimony to be paid by the former husband to the former wife was established by the final judgment entered in 1992, dissolving the parties' marriage. Approximately one year after the final judgment had been entered, the former husband filed petitions requesting that the amount of his obligation to pay alimony be reduced because his income had declined and the former wife had received proceeds from the sale of stock distributed to her incident to the final judgment, which proceeds were sufficient to permit her "to fully support and maintain herself." Coincident with the filing of his petitions, the former husband unilaterally reduced the amount of his monthly alimony payment to the former wife by almost two-thirds.
The evidence presented at the hearing on the former husband's petitions, viewed in a light most favorable to him, established that his monthly income had increased by at least fifty percent since the entry of the final judgment. Accordingly, there was, and is, no real question regarding the former husband's continuing ability to pay the amount of alimony originally awarded. In fact, counsel for the former husband conceded both during the former husband's deposition and before this court that the former husband continues to possess the financial wherewithal to pay the amount of alimony originally awarded. The only real issue raised was whether the former wife's financial position had been so improved by the proceeds received from the sale of the stock awarded to her as to warrant the requested reduction in the amount of permanent periodic alimony.
The amount of alimony awarded by the final judgment was based upon the finding that, during their marriage, the parties had been fortunate enough to have enjoyed a very comfortable — some might even say relatively lavish — lifestyle. The evidence presented at the hearing on the former husband's petitions for modification established that, while the former wife continued to live comfortably after the dissolution, even with the additional income generated by the proceeds from the stock sale, she would be unable to live in the style enjoyed by the parties during their marriage without the amount of alimony originally awarded. Moreover, there was no question about the fact that the former husband would be able to enjoy a lifestyle at least as good as that established during the marriage, even if he were required to continue to pay the full amount of alimony. In other words, this is one of those "exceptional cases" in which the parties' resources are sufficient to permit them to maintain separate lifestyles after divorce consistent with that enjoyed by them during their marriage. See Fontana v. Fontana, 617 So.2d 418, 419 (Fla. 1st DCA 1993) (citing Pirino v. Pirino, 549 So.2d 219 (Fla. 5th DCA 1989)).
To establish entitlement to the requested modification, the former husband was obliged to prove that the modification was warranted because of a substantial and material change in the circumstances of the parties since the entry of the final judgment. E.g., Zipperer v. Zipperer, 567 So.2d 916 (Fla. 1st DCA 1990), review denied, 581 So.2d 1312 (Fla. 1991). Given the evidence, we believe that it is clear that the former husband did not carry that burden.
Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds.
It is true that the former wife's ability to earn income had increased as a result of receipt of the proceeds from the sale of the stock. However, it is also true that the former husband's income had increased. In fact, his income had increased by a significantly greater amount than had the former wife's. Moreover, and of critical importance, notwithstanding the increase in her income, the former wife continued to need the full amount of alimony originally awarded to permit her to enjoy the lifestyle established during the marriage. In addition, the former husband could continue to pay that amount and easily enjoy a lifestyle at least as comfortable as that established during the marriage. Given these facts, we conclude that the order reducing the amount of the alimony award was an abuse of discretion. See generally Kelly v. Kelly, 557 So.2d 625 (Fla. 4th DCA 1990) (in determining propriety of permanent periodic alimony award, consideration must be given to lavish lifestyle enjoyed during marriage and disparity between parties' ability to produce income); Halberg v. Halberg, 519 So.2d 15 (Fla. 3d DCA 1987) (abuse of discretion not to award permanent periodic alimony commensurate with lavish lifestyle enjoyed during marriage); Dwyer v. Dwyer, 513 So.2d 1325 (Fla. 2d DCA 1987) (substantial permanent periodic alimony award affirmed where it appeared trial court had attempted to ensure that both parties would be able to continue to enjoy standard of living like that during marriage); Carroll v. Carroll, 471 So.2d 1358 (Fla. 3d DCA) (given undisputed ability of husband to pay, trial court abused discretion in failing to award wife substantial amount of permanent periodic alimony, sufficient to permit her to continue to enjoy lifestyle established during marriage), review denied, 482 So.2d 347 (Fla. 1985); Rion v. Rion, 421 So.2d 541 (Fla. 5th DCA 1982) (trial court abused discretion in failing to take into account disparity between parties' income and assets, and luxurious lifestyle enjoyed during marriage, in setting amount of permanent periodic alimony). Likewise, we conclude that it was an abuse of discretion to deny the former wife's request that the former husband be required to pay some or all of her attorney fees and costs. See, e.g., Nowell v. Nowell, 634 So.2d 235 (Fla. 1st DCA 1994) (abuse of discretion, given disparity in parties' income and resources, to deny request that former spouse be required to contribute to attorney fees); Meloan v. Coverdale, 525 So.2d 935, 937 (Fla. 3d DCA) (where there is no question regarding ability to pay, factors such as "refractory attitude toward payment of alimony" should be considered in determining right to attorney fees incurred in enforcing obligations), review denied, 536 So.2d 243 (Fla. 1988).
We reverse the reduction in the amount of permanent periodic alimony; and we remand with directions that the trial court reinstate the original award retroactive to the date on which the reduction became effective. The trial court shall also establish an arrearage in the amount representing the difference between what the former husband has paid during the period since the effective date of the reduction and what he owes as a result of this opinion, and a schedule for the payment of that arrearage. We also reverse the denial of the former wife's request that the former husband be required to pay some or all of her attorney fees and costs. On remand, the trial court shall determine what amount the former husband should pay to the former wife on account of her attorney fees and costs, consistent with this opinion.
BENTON, J., concurs and dissents with written opinion.
BENTON, Judge, concurring and dissenting.
Despite significant changes in the parties' financial positions attendant on the sale of stock in a closely held corporation, the evidence did not demonstrate a material change that would justify a reduction in alimony. Capital gains taxes Mrs. Webb had to pay and extremely conservative investment choices she was entitled to make resulted in surprisingly little additional income. While married, she had become accustomed to helping Mr. Webb spend large sums of money, and she also had serious health problems.
But the final judgment of dissolution of the parties' marriage provided: "Due to the relatively equal distribution of the marital assets and the income available to the husband and the wife after the payment of alimony, each party shall pay their own attorney's fees and costs in this matter." This provision has never been disturbed. After Mrs. Webb realized in excess of $900,000.00 from the post-dissolution stock sale, it was even more apparent that no award of attorney's fees was "necessary to ensure the former wife assistance of counsel." Nowell v. Nowell, 634 So.2d 235, 237 (Fla. 1st DCA 1994).
The majority seems to hold that the trial court abused its discretion in failing to require Mr. Webb to pay fees and costs as punishment for his supposed "refractory attitude toward payment of alimony." Meloan v. Coverdale, 525 So.2d 935, 937 (Fla. 3d DCA 1988). After he filed his motion to modify the final judgment by reducing the amount of alimony, Mr. Webb started paying Mrs. Webb monthly alimony of only $3,500 instead of the $9,500 required by the final judgment of dissolution. Since Mr. Webb had the ability to make the higher payments, his initial failure to comply with the judgment, which had not then been stayed or modified, was unquestionably unlawful. But the appropriate remedy to make Mrs. Webb whole is an order on remand requiring immediate payment of the arrearage with interest.
I cannot agree that the learned trial judge abused his discretion in refusing to require Mr. Webb to bear Mrs. Webb's attorney's fees and costs. Mrs. Webb incurred attorney's fees and costs because Mr. Webb required her to litigate whether the liquidation of stock which had not paid dividends resulted in sufficient additional income to lessen the need for alimony. The question was sufficiently close that he prevailed in the trial court. Mr. Webb had every right to litigate this question, and should not be penalized for having done so. The court today reverses the trial judge's decision not to take unwarranted punitive measures against him.

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This is the October 29, 2010 episode of Ringside Report Radio hosted by Dave Simon, Kevin "Big Tuna" McKough and Julie V.
On this show, Dave Kevin and Julie discuss the WEC merging with the UFC including the 145 and 135 lbs. weight classes. They discussed Jose Aldo being recognized as UFC featherweight champion, the winner of Benson Henderson v. Anthony Pettis facing the winner of Frankie Edgar v. Gray Maynard and much more on the merger.
They also talked about Kimbo Slice's next move and much more MMA on this 1 hour episode.
This is the October 27, 2010 episode of Ringside Report Radio hosted by Dave Simon and Kevin "Big Tuna" McKough.
UFC welterweight champion Georges St-Pierre appeared on this episode. GSP talked about his fight at UFC 124 against Josh Koscheck, whether or not he watched Jake Shields UFC debut, which living person he'd most like to meet and lots more.
Dave and Kevin talked about the results from UFC 121 including Cain Velasquez' victory over Brock Lesnar, Diego Sanchez' win over Paulo Thiago and the rest of the card. Dave and Kevin also discussed Shane Carwin's injury, Dana White's major announcement and much much more MMA on this 90 minute episode of Ringside Report Radio.
Wrestling Uncensored Episode 12, original air date: October 23, 2010. Hosted by Dave Simon and Jeremy Prophet.
WWE Bragging Rights pay-per-view is given a full preview in this episode. Simon and Prophet discuss Randy Orton's WWE title defense against Wade Barrett who will have John Cena in his corner. They also talked about the Raw v. Smackdown inter-promotional match and the rest of the Bragging Rights card.
Simon and Prophet also discussed Mickie James in TNA, the role of wrestling journalists and much more pro wrestling on this 1 hour episode of Wrestling Uncensored.
This is the October 22, 2010 episode of Ringside Report Radio hosted by Dave Simon and Kevin"Big Tuna" McKough.
In this episode Dave and Kevin gave their preview and predictions for UFC 121 including Brock Lesnar's heavyweight title defense against Cain Velasquez, Tito Ortiz versus Matt Hamill and Jake Shields UFC debut against Martin Kampmann.
Dave and Kevin previewed every fight on the UFC 121 pay-per-view card and the two fights on the Spike TV preliminary card.
All this and much more MMA talk on this 90 minute episode of Ringside Report Radio.
This is the October 20, 2010 episode of Ringside Report Radio hosted by Dave Simon, Kevin "Big Tuna" McKough and Julie V.
UFC middleweight Patrick Cote appeared on this episode to talk about his upcoming fight at UFC 121 against Tom Lawlor. Cote also discussed training with Georges St-Pierre, his feud with Michael Bisping and the main event of UFC 121 featuring Brock Lesnar v. Cain Velasquez.
Dave, Kevin and Julie discussed the results of UFC 120, Jose Aldo's next opponent and Brock Lesnar's beard.
They also previewed the UFC 121 preliminary bouts including Jon Madsen v. Gilbert Yvel and Sam Stout v. Paul Taylor.
Wrestling Uncensored Episode 11, original air date October 16, 2010. Hosted by Dave Simon and Jeremy Prophet.
Former WWE tag-team champion Sylvain Grenier appears on this episode to discuss the latest installment in Top of the World Wrestling.
Simon and Prophet give a recap of TNA Bound for Glory and discuss the latest episode of Monday Night Raw.
This is the October 15, 2010 episode of Ringside Report Radio hosted by Dave Simon, Kevin "Big Tuna" McKough and Julie V.
In this episode, Jamie McGowan phoned in to talk about the Battle at GAMMA, an amateur MMA show taking place in Montreal, Quebec at the GAMMA gym (www.montrealmartialarts.com).
Dave, Kevin and Julie gave a full preview and their predictions for every fight on the UFC 120 card including the preliminary bouts and the televised portion of the show.
All this and more MMA talk on this one-hour episode of Ringside Report Radio.
This is the October 13, 2010 episode of Ringside Report Radio hosted by Dave Simon, Kevin McKough and Julie V.
Strikeforce: Diaz v. Noons 2 was re-capped including Sarah Kaufman losing the women's welterweight title to Marloes Coenen and the fight between Nick Diaz and K.J. Noons.
Dave, Kevin and Julie also gave their Top 10 lists for the Lightweight (155 lbs.) division. After their individual lists were announced, a consensus list was formed.
All this and much more MMA talk on this 90-minute version of Ringside Report Radio.
Wrestling Uncensored Episode 10, original air date October 9, 2010. Hosted by Dave Simon and Jeremy Prophet.
WWE Hell in a Cell pay-per-view is re-capped on this episode including Randy Orton retaining the WWE title and John Cena losing to Wade Barrett and joining the Nexus.
Simon and Prophet also gave a preview of TNA Bound for Glory including their thoughts on the main event of Kurt Angle v. Jeff Hardy v. Ken Anderson.
All this and more pro wrestling talk on the latest episode of Wrestling Uncensored.

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[323 U.S. 72, 73] Mr. Warren E. Magee, of Washington D.C., for Jeff Busby and others.
By Rule 81(e), the 'law of the state' in proceedings in the District Court of the United States for the District of Columbia is 'the law applied in the District of Columbia.' That law is derived from the common law and statutes of Maryland in force at the time of the cession of the District to the United States, as modified by statutes of Congress and as determined and developed by the courts of the District. Act of February 27, 1801, 2 Stat. [323 U.S. 72, 74] 103; Armstrong v. Lear, 12 Wheat. 169, 176; McKenna v. Fisk, 1 How. 241, 249.
The certificate in this case discloses that the Court of Appeals is in doubt as to the meaning and application of the rule laid down in United Mine Workers v. Coronado Coal Co., 259 U.S. 344 , 383-392, 42 S.Ct. 570, 573-577, 27 A.L.R. 762, and the effect upon it of the second part of Rule 17(b); cf. Brown v. United States, 276 U.S. 134, 141 , 48 S.Ct. 288, 289; People of Puerto Rico v. Russell & Co., 288 U.S. 476 , 480-482, 483, 484, 53 S.Ct. 447, 448, 449, 450; Moffat Tunnel League v. United States, 289 U.S. 113, 118 , 53 S.Ct. 543, 545. But under Rules 17 and 81 of the Rules of Civil Procedure, as we have said, that question cannot arise in the present suit, unless it is first decided that under the law of the District an unincorporated labor union is without capacity to be sued in its own name. And we do not understand the certificate to seek our aid in the determination of this question of local law.
In any event, we think it appropriate that the question of local law should be answered by the courts of the District before this Court is called upon to answer it, or to consider the application and effect of the second part of Rule 17(b) in an action in debt brought in the District of Columbia against an unincorporated labor union. There are cogent reasons why this Court should not undertake to decide questions of local law without the aid of some expression of the views of judges of the local courts [323 U.S. 72, 75] who are familiar with the intricacies and trends of local law and practice. We do not ordinarily decide such questions without that aid where they may conveniently be decided in the first instance by the court whose special function it is to resolve questions of the local law of the jurisdiction over which it presides. Huddleston v. Dwyer, 322 U.S. 232, 237 , 64 S.Ct. 1015, 1018, and cases cited. Only in exceptional cases will this Court review a determination of such a question by the Court of Appeals for the District. District of Columbia v. Pace, 320 U.S. 698, 702 , 64 S.Ct. 406, 408, and cases cited.
It is not the function of the certificate authorized by 28 U.S.C. 346, 28 U.S.C.A. 346, to require this Court to answer questions not shown to be necessary to the decision of the case. A question will not be answered if it is hypothetical, Webster v. Cooper, 10 How. 54, 55; Pelham v. Rose, 9 Wall. 103, 107; White v. Johnson, 282 U.S. 367, 373 , 51 S.Ct. 115, 118; Lowden v. Northwestern National Bank & Trust Co., 298 U.S. 160, 162 , 163 S., 56 S.Ct. 696, 697, 698, or if it is dependent upon other questions which may not appropriately be answered, Jewell v. Knight, 123 U.S. 426, 432 , 433 S., 435, 8 S.Ct. 193, 194, 195, 196; Lowden v. Northwestern National Bank & Trust Co., supra, 298 U.S. 166 , 56 S.Ct. 699. This Court will not answer a question which will not arise in the pending controversy unless another issue, not yet resolved by the certifying court, is decided in a particular way. Triplett v. Lowell, 297 U.S. 638 , 647-649, 56 S.Ct. 645, 649, 650; Webster v. Cooper, supra, 10 How. 55; cf. United States v. Buzzo, 18 Wall. 125, 129.
We do not answer the question as to the effect of the second part of Rule 17(b), since the answer will be decisive of the case only in the event that a question of local law, not answered by the Court of Appeals and inappropriate for us to consider in the first instance, receives one rather than another answer. We have no occasion to discuss the meaning and application of the rule of the Coronado case or the second part of Rule 17( b), which are relevant only for the purpose of answering the question [323 U.S. 72, 76] which, as we have said, we cannot properly answer. The certificate is accordingly dismissed. So ordered.
This is a suit for a lawyer's fee, that is, an ordinary District of Columbia common-law action of debt and not one to enforce 'a substantive right existing under the Constitution or laws of the United States.' For, I take it, in allowing an unincorporated association to be sued 'in its common name for the purpose of enforcing ... a substantive right existing under the ... laws of the United States', Rule 17(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, referred to laws of general applicability throughout the United States and not to the body of local law governing the District of Columbia. Therefore, suability of an unincorporated labor union is a local procedural problem to be determined, according to Rule 17(b) in conjunction with Rule 81(e), by the local law of the District. That 'the suability of trades unions ... is after all in essence and principle merely a procedural matter' is vouched for by the Coronado case, 259 U.S. 344, 390 , 42 S.Ct. 570, 576, 27 A.L.R. 762, the scope of which has been authoritatively defined in Brown v. United States, 276 U.S. 134, 141 , 48 S.Ct. 288, 289, and Moffat Tunnel League v. United States, 289 U.S. 113, 118 , 53 S.Ct. 543, 545. Since substantive rights were outside the authority given by Congress for prescribing rules of civil procedure, Rule 17(b) and the note thereto by the Advisory Committee on Rules, by dealing with capacity to sue or be sued, decisively confirm the [323 U.S. 72, 77] statement in the Coronado case that the suability of a trade union is a procedural matter.
In view of the increase in the volume and the complexity of the business that is coming to this Court, and the bearing of this increase upon the proper discharge of its work (see Ex parte Republic of Peru, 318 U.S. 578 , 602-604, 63 S.Ct. 793, 806, 807), I deem it important to avoid any encouragement however slight to futile resort to this Court.

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Ensuring that our nation’s students are provided with learning environments comprised of students of diverse backgrounds is not just a lofty ideal. As the Supreme Court has recognized, the benefits of participating in diverse learning environments flow to an individual, his or her classmates, and the community as a whole. These benefits greatly contribute to the educational, economic, and civic life of this nation.
Learning environments comprised of students from diverse backgrounds provide an enhanced educational experience for individual students.1 Interacting with students who have different perspectives and life experiences can raise the level of academic and social discourse both inside and outside the classroom; indeed, such interaction is an education in itself. By choosing to create this kind of rich academic environment, educational institutions help students sharpen their critical thinking and analytical skills.
For all these reasons, the Departments recognize the compelling interest that postsecondary institutions have in obtaining the benefits that flow from achieving a diverse student body.5 This guidance addresses the degree of flexibility that postsecondary institutions have to take proactive steps, in a manner consistent with principles articulated in Supreme Court opinions, to meet this compelling interest. As the Supreme Court has made clear, such steps can include taking account of the race of individual students in a narrowly tailored manner, as described below.
Section I of this guidance describes the relevant legal framework for considering race to further the compelling interest in achieving diversity in postsecondary institutions. Section II sets forth considerations for postsecondary institutions in their voluntary use of race to achieve diversity. Section III summarizes key steps for institutions seeking to achieve diversity. Section IV provides examples of ways that, in light of this guidance, postsecondary institutions may choose to advance this compelling interest.
In Grutter, the Court evaluated the University of Michigan Law School’s admissions program under the strict scrutiny standard of review, requiring that the Law School demonstrate that its program was narrowly tailored to serve a compelling government interest. The Court has repeatedly emphasized that the application of strict scrutiny, in and of itself, is “‘not fatal in fact.’” Grutter,539 U.S. at 327 (quoting Adarand v. Pena, 515 U.S. 200, 237 (1995)). Applying that standard, the Court held that postsecondary institutions have a compelling interest in the benefits that flow from a diverse student body. In reaching this result, the Court followed its tradition, grounded in the First Amendment, of “giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.” Grutter, 539 U.S. at 328. As described further below, the Court also held that the Law School’s program was narrowly tailored to meet its compelling interest.
1. The Law School Had a Compelling Interest in Achieving Diversity.
The Court recognized that the benefits of student body diversity in institutions of higher education are “substantial,” as well as “important and laudable.” Id. at 330. One aspect of such student body diversity, the Court recognized, can be racial diversity. The Court accepted the Law School’s goal to achieve broad diversity where race was “‘only one element in a range of factors a university properly . . . consider[ed] in attaining the goal of a heterogeneous student body.’” Id. at 324 (quoting Bakke, 438 U.S. at 314 (opinion of Powell, J.)).
2. The Law School’s Admissions Program Was Narrowly Tailored.
The Court looked to several criteria in concluding that the Law School’s admissions program was narrowly tailored: whether the Law School had considered workable race-neutral alternatives; whether the admissions program provided for flexible and individualized review of applicants; whether it unduly burdened students of any racial group; and whether the consideration of race was limited in time and subject to periodic review. See id. at 334-43.
The Court held that before using race as a factor in individualized admissions decisions, a postsecondary institution must conduct a serious, good faith review of workable race-neutral alternatives to achieve the diversity that it seeks. Id. at 339. An institution may deem unworkable a race-neutral alternative that would be ineffective or would require it to sacrifice another component of its educational mission. Id. at 339-40. Applying this standard, the Court found that the Law School “adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission.” Id. at 340.
The Court concluded that the Law School’s admissions program provided for a “highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.” Id. at 337. Under the Law School’s program, race was not an applicant’s “defining feature” across the board, id. at 337; race played no role in some admissions decisions while in others it was the “determinative” factor. Id. at 319.
The Law School did not unduly burden members of any racial group because it allowed each applicant to compete with every other applicant for every available opening, and made decisions based on individualized consideration of “‘all pertinent elements of diversity.’” Id. at 341 (citing Bakke, 438 U.S. at 319 (opinion of Powell, J.)). The Court noted that the Law School’s program also resulted in the admission of certain “nonminority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants.” Id. (quoting Bakke, 438 U.S. at 317 (opinion of Powell, J.)).
The Court held that admissions programs must be limited in time and subject to periodic review “to determine whether racial preferences are still necessary to achieve student body diversity.” Id. at 342. The Court accepted the Law School’s assurances that it would “terminate its race-conscious admissions program as soon as practicable.” Id. at 343.
In Gratz, the Court — for the reasons set forth in Grutter — accepted that the University of Michigan had a compelling interest in achieving diversity, including racial diversity, in its undergraduate student body. The Court struck down the University’s undergraduate admissions program, however, because the University used a point system that automatically awarded 20 points, one-fifth of the points required to guarantee admission, to every “underrepresented minority” applicant solely because of race. Id. at 270. The Court explained that this policy was not sufficiently flexible and had “the effect of making ‘the factor of race … decisive’ for virtually every minimally qualified underrepresented minority applicant.” Id. at 272 (quoting Bakke, 438 U.S. at 317 (opinion of Powell, J.)). The Court also faulted the University for failing to provide an individualized review of applicants, and dismissed the argument that the sheer volume of applications for admission made individualized review impossible.
The institution should, based on its particular educational objectives and unique needs, determine how it will achieve the desired benefits it is pursuing. An institution may permissibly aim to achieve a critical mass of underrepresented students, as described in Section I(A)(1) above.
When an institution is taking an individual student’s race into account in an admissions or selection process, it should conduct an individualized, holistic review of all applicants. That is, the institution should evaluate each applicant’s qualifications in a way that does not insulate any student, based on his or her race, from comparison to all other applicants. An institution may assign different weights to different diversity factors based on their importance to the program. Race can be outcome determinative for some participants in some circumstances. But race cannot be given so much weight that applicants are defined primarily by their race and are largely accepted or rejected on that basis.
Conducting an individualized review will help to ensure that the institution considers the impact of its decision-making on all its applicants. Finally, the institution should periodically review its programs to determine whether the use of racial classifications remains necessary and should modify its practices as needed.
Determine how this compelling interest relates to your institution’s mission and unique circumstances.
Evaluate how you will know when your compelling interest has been achieved.
Consider whether there are race-neutral approaches that you can use, such as looking at socioeconomic status or the educational level attained by parents. In selecting among race-neutral approaches, you may take into account the racial impact of various choices.
If race-neutral approaches would be unworkable to achieve your compelling interest, you may then consider approaches that take into account the race of individual students. When taking into account an individual student’s race among other factors to achieve diversity, evaluate each student as an individual and do not make the student’s race his or her defining characteristic. Periodically review your program to determine if you continue to need to consider the race of individual students to achieve your compelling interest. It is important to ensure that race is used to the least extent needed to workably serve your compelling interest.
It would be helpful to maintain documents that describe your compelling interest, and the process your institution has followed in arriving at your decisions, including alternatives you considered and rejected and the ways in which your chosen approach helps to achieve diversity. These documents will help you answer questions that may arise about the basis for your decisions.
This Section provides practical examples of actions that postsecondary institutions may consider, consistent with prior Supreme Court opinions and the principles set forth in the previous Sections, as necessary to achieve diversity. In choosing among options, postsecondary institutions should keep in mind the framework discussed above. We encourage institutions to contact us for technical assistance in applying this guidance to their particular situations.
These examples are intended to be illustrative, not exhaustive. Institutions may choose to pursue more than one of these options (e.g., a combination of recruiting and pipeline programs as well as admissions procedures) or may design other options that are consistent with this guidance.
Postsecondary institutions may develop admissions procedures designed to achieve diversity.
Example 1: An institution could consider an applicant’s socioeconomic status, first-generation college status, geographic residency, or other race-neutral criteria if doing so would assist in drawing students from different racial backgrounds to the institution.
Example 2: An institution could include in its admissions procedures special consideration for students who have endured or overcome hardships such as marked residential instability (e.g., the student moved from residence to residence or school to school while growing up) or enrollment in a low-performing school or district.
Example 3: An institution could implement a plan that guarantees admission to a top percentile of students graduating from all in-state high schools.
Example 4: An institution could select schools (including community colleges) based on their demographics (e.g., their racial or socioeconomic composition), and grant an admission preference to all students who have graduated from those schools, regardless of the race of the individual student.
Example 5: An institution could consider an individual student’s race among other factors in its admissions procedures; in so doing, an institution should follow the legal guidelines concerning the individualized use of race that are set forth above.
Institutions of higher education may develop pipeline programs to promote diversity at the undergraduate or graduate levels. Pipeline programs include partnerships between postsecondary institutions and school districts (or specific schools), as well as other programs to introduce potential applicants to the institution. For example, a postsecondary institution might invite students from the partner school or program to the institution’s campus for informational visits, mentoring or tutoring, summer classes, and workshops on academic, career, and other interests. The postsecondary institution might also send its own volunteers or staff to the partner school or program. The institution typically selects its partner (e.g., a school, district, or community college) and in some programs, the institution may select individual students to participate in its program.
Pipeline programs can foster student body diversity at a postsecondary institution by increasing potential applicants’ awareness of the institution and by assisting a diverse group of potential applicants to be better prepared to qualify for admission. In addition, pipeline programs are often used as a means to connect an institution to the local community.
Example 1: An institution could select high schools for partnership based on one or more of the following: school-wide performance on standardized tests, school-wide socioeconomic characteristics, geographic proximity to the institution, racial composition of the school’s student body, or the similarity of academic or programmatic themes between the institution and the school with which it is partnering. In selecting schools using such criteria, a college or university may take into account the impact of those criteria on the diversity of its programs.
Example 2: An institution could form partnerships with other institutions of higher education, such as Historically Black Colleges and Universities (HBCUs), other minority-serving institutions, or community colleges to help the institution increase diversity.
Example 3: An institution that selects individual students for participation in programs could consider race among a range of factors, such as socioeconomic status, parental education level, work experience, or personal essays, to help the institution to achieve its interest in diversity. When taking account of an individual student’s race as a factor, an institution should follow the legal guidelines concerning the individualized use of race that are set forth above.
Postsecondary institutions may develop recruitment and outreach initiatives in an attempt to further diversity by broadening their applicant pools and thereby increasing the number of applicants from underrepresented groups. While recruitment and outreach efforts do not guarantee or increase the likelihood of admission for any applicant, efforts that are more inclusive can assist postsecondary institutions to increase the diversity of their applicant pools.
Example 1: An institution’s recruitment and outreach procedures could target school districts or high schools that are underrepresented in the institution’s applicant pool by focusing on geographic underrepresentation (e.g., schools in the Midwest, or urban or rural communities) or other characteristics (e.g., low-performing schools or schools with high dropout rates). Such targeting may also assist the institution in achieving racial diversity.
Example 2: An institution could target districts or schools that enroll students who are predominantly from low-income households to help the institution achieve its interest in racial diversity.
Example 3: As part of its overall recruitment efforts, a postsecondary institution could target geographic areas, specific districts or schools, or colleges (e.g., community colleges, or, at the graduate level, HBCUs or other minority-serving institutions), that have a significant number of potential applicants who are of races underrepresented in the institution’s applicant pool.
Example 4: An institution could consider other recruitment and outreach tools to increase diversity in its applicant pool, such as, as part of its overall recruitment efforts, direct mail and other outreach efforts to potential applicants — including the use of advertising in media aimed at specific racial groups, participation by admissions staff in community-sponsored events aimed at informing underrepresented groups about the institution, and encouraging individual students to apply.
Many institutions operate mentoring, tutoring, retention, and support programs for enrolled students who may need additional assistance in academic or other areas to succeed at the institution. The Departments recognize that a postsecondary institution seeking the educational benefits of diversity not only must enroll a diverse group of students, but also must retain those students.
Example 1: An institution could provide mentoring, tutoring, or other academic support to all enrolled students who are at risk of not completing their programs.
Example 2: A college could sponsor a selective mentoring program in which there are a limited number of spaces for student participants. In selecting participants for the program, the college could consider race among a range of attributes, such as grade point averages, community service and faculty recommendations. When taking account of an individual student’s race as a factor, an institution should follow the legal guidelines concerning the individualized use of race that are set forth above.
Example 3: An institution could sponsor retention or support programs open to all students that offer content that the institution believes might be of particular interest to a group targeted for retention. Such programs could, for example, hold motivational lectures (e.g., highlighting the accomplishments of Latino business leaders or the artistic achievements of Pacific Islanders), and could include small group follow-up workshops with mentors.
This document provides guidance and examples of approaches that postsecondary institutions can voluntarily use to further their compelling interests in achieving diversity, consistent with case law under Title IV, Title VI, and the Equal Protection Clause of the Fourteenth Amendment to the Constitution.
1 Grutter v. Bollinger, 539 U.S. 306, 330 (2003).
5 The Departments also recognize the compelling interest in remedying the vestiges of past racial discrimination, which is not the focus of this guidance. Some postsecondary institutions are required to consider race pursuant to desegregation orders, compliance plans, or other legal mandates to remedy discrimination. This guidance does not address the remedial use of racial classifications in these or other circumstances; nothing in it should be read to imply any limitations on remedial orders by courts or administrative agencies. In addition, nothing in this guidance addresses other claims of compelling interests justifying the consideration of race, which the Departments will consider on a case-by-case basis. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007) (stating that the Court’s opinion was issued “[w]ithout attempting in these cases to set forth all the interests a school district might assert”).
6 Throughout this guidance, references to “race” includes race, color, and national origin. When evaluating efforts to promote diversity that fall within the scope of Title VI (and Title IV in the case of DOJ), the Departments will apply this guidance.
7 See Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001) (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978) (opinion of Powell, J.)).
8 539 U.S. 306 (2003).
10 The Court also recognized that the concept of critical mass could involve “some attention to numbers”: “[t]here is of course ‘some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.’” Id. at 336 (quoting Bakke, 438 U.S. at 323 (opinion of Powell, J.)). Indeed, “‘some attention to numbers,’ without more, does not transform a flexible admissions system into a rigid quota.” Id. Such consideration of numbers is distinct from setting impermissible quotas, which exist where an institution: (1) imposes a fixed number or percentage that must be attained or that cannot be exceeded; and (2) insulates particular categories of individuals, based on their race, from comparison with all other candidates for the available openings within its schools or programs. Id. at 335.
11 See, e.g., Parents Involved, 551 U.S. at 788-89 (Kennedy, J., concurring in part and concurring in the judgment) (clarifying that the leeway to “devise race-conscious measures” to achieve diversity or avoid racial isolation extends only to circumstances where entities “pursue the goal of bringing together students of diverse backgrounds and races”); cf., e.g.,Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-68 (1977); Washington v. Davis, 426 U.S. 229, 239-42 (1976).
12 Parents Involved, 551 U.S. at 789 (Kennedy, J., concurring in part and concurring in the judgment).
13 See Section IV(B) below (describing pipeline programs).
14 See Grutter, 539 U.S. at 340.

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Unfortunately for debtor, Cal. Bus. & Prof. Code § 7071.17(j) precludes an entity from receiving a contractor’s license if the entity’s responsible managing officer was affiliated with a judgment debtor whose license was suspended based on an unsatisfied judgment. Consequently, debtor was precluded from transferring its license to Avenue 35. Cal. Bus. & Prof. Code § 7071.17(f) however contains an exception where the unsatisfied judgment has been discharged by bankruptcy proceeding. Thus, debtor elected to file a voluntary chapter 7 bankruptcy petition on July 15, 2011. Debtor’s schedules reflected that debtor had no assets as of the petition date.
With the aid of discovery obtained through Bankruptcy Rule 2004, the Wongs filed a motion to dismiss debtor’s bankruptcy case pursuant to Bankruptcy Code § 707(a) on grounds that the petition was not filed in good faith because debtor was a corporation not entitled to a discharge and had no assets to distribute to creditors. The Wongs also sought Rule 9011 sanctions against debtor and its attorney. The bankruptcy granted the Wongs’ motion, finding that there was “absolutely…no legitimate purpose” for debtor’s petition and that the petition was only filed to benefit debtor’s principals. Debtor appealed.
Among the issues before the Bankruptcy Appellate Panel (BAP) was whether the bankruptcy court erred when it determined that ’cause’ existed under § 707(a) to dismiss debtor’s chapter 7 case.
(3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time as the court may allow after the filing of the petition commencing such case, the information required by paragraph (1) of section 521(a), but only on a motion by the Unites States trustee.
First, the BAP noted that it was undisputed that subparagraphs 1-3 of § 707(a) were not the “cause” for the dismissal of debtor’s case. However, the BAP found that it was well-settled that if the asserted ’cause” under § 707(a) was not covered by a specific provision, ie. § 707(a)(1-3), then the court was required to consider whether under the circumstances surrounding debtor’s filing there was “misconduct sufficient to constitute ’cause’ for dismissal.” In debtor’s case, the BAP found that there clearly was.
Citing the bankruptcy court’s decision, the BAP noted that chapter 7 bankruptcy relief is available for two overriding reasons: to provide the honest but unfortunate debtor a fresh start through the discharge provisions of the Bankruptcy Code, and to provide for the fair and equitable distribution of a debtor’s assets to its creditors. The BAP had no trouble agreeing with the bankruptcy court that neither reason was present in debtor’s case.
Accordingly, the BAP affirmed the bankruptcy court’s ruling, including its award of Rule 9011 sanctions, finding that debtor’s filing was improper because debtor would not have benefitted from a bankruptcy and the filing of the case to affect a transfer of debtor’s contractor’s license was not a valid purpose.
This case serves as a cautionary tale and reminder to debtors and their counsel of the purpose of Chapter 7 bankruptcy and the consequences of filing a bankruptcy petition for an improper purpose. The well-established purpose of a chapter 7 bankruptcy is to provide a fresh start for the honest but unfortunate debtor and to provide a mechanism for the fair and equitable distribution of the debtor’s assets to debtor’s creditors. As this case makes clear, the purpose is not to provide a tool or means for a debtor’s principals to benefit themselves. In the case of a non-individual (entity) debtor, without assets to distribute, there is no bankruptcy purpose for a chapter 7 filing given that an entity is not eligible for a bankruptcy discharge. Moreover, a Chapter 7 filing under such circumstances may likely subject both the debtor and its attorney to sanctions.


text: locative of মর: মর [ mara ] a mortal; perishable. ~জগৎ n. the perishable or mortal world; the earth. ~জীবন n. mortal life. ~দেহ n. the perishable body, the mortal frame. ~মানব n. mortal man, a mortal. perfective participle of মরা: মরা2 [ marā2 ] v to die; (of trees etc.) to wither; to be ruined (চাকরি গেলে মরবে); to be extremely troubled or afflicted (ভেবে মরা); to be strongly seized with (লজ্জায় মরা); to suffer or be punished (বদমাশি করলে মরবে); to dry up, to silt up (নদী মরা); to be allayed, to abate (ব্যথা মরা); to decrease (তেজ মরা); to weaken (পেট মরা); to be spiritless (অভাবে মরে থাকা); to be out (বাতাসে আলো গেল মরে). ☐ a. dead; withered; dried up, silted up; allayed, abated; decreased; weak or weakened; utterly spiritless; extinct; dim. অনাহারে মরা v. to die of hunger, to starve; to famish. মরমে মরা v. to be extremely mortified or ashamed. মরতে মরতে বাঁচা v. to come back from the jaws of death. মরে বাঁচা v. to be relieved from suffering by death. মরে মরে impairing one's health utterly; with utmost strain and difficulty. জীয়ন্তে মরা more dead than alive. মরা নাড়ি, মরা পেট stomach weakened on account of continued under-feeding. 3rd person ordinary present simple tense of মরা: মরা2 [ marā2 ] v to die; (of trees etc.) to wither; to be ruined (চাকরি গেলে মরবে); to be extremely troubled or afflicted (ভেবে মরা); to be strongly seized with (লজ্জায় মরা); to suffer or be punished (বদমাশি করলে মরবে); to dry up, to silt up (নদী মরা); to be allayed, to abate (ব্যথা মরা); to decrease (তেজ মরা); to weaken (পেট মরা); to be spiritless (অভাবে মরে থাকা); to be out (বাতাসে আলো গেল মরে). ☐ a. dead; withered; dried up, silted up; allayed, abated; decreased; weak or weakened; utterly spiritless; extinct; dim. অনাহারে মরা v. to die of hunger, to starve; to famish. মরমে মরা v. to be extremely mortified or ashamed. মরতে মরতে বাঁচা v. to come back from the jaws of death. মরে বাঁচা v. to be relieved from suffering by death. মরে মরে impairing one's health utterly; with utmost strain and difficulty. জীয়ন্তে মরা more dead than alive. মরা নাড়ি, মরা পেট stomach weakened on account of continued under-feeding.

matches: v. v. v. v. v. v. v. v.