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Skills Advisories: Eligibility for ENG 98 and ENG 103.
Study of the language, methods, materials and meaning of visual imagery, as found in the visual arts. Role and meaning of visual images in society, both historical and contemporary, are surveyed.
Skills Advisories: Eligibility for ENG 98 and 103.
Survey of major styles and innovations in art during the first half of the 20th century. Emphasis is on the historical, cultural, and ideological context of modernism. Focus is also on awareness of the sequence and significance of modern art.
Introduction to developments in art of the late 20th century and their theoretical basis. Exploration of the historical, social, cultural and ideological context of art made after World War II to the end of the century.
Skills Advisories: Eligibility for ENG 110 or ENG 110H.
Survey of art from prehistoric times through the Gothic period, and an examination of its cultural and conceptual context.
Skills Advisories: Eligibility for ENG 110 or 110H.
Survey of art from 1300 to the end of the 20th century (the Renaissance to Post-Modernism), and an examination of its cultural and conceptual context.
Limitation on Enrollment: Acceptance into the Honors Program. Survey of the history of Western art, its styles and cultural context, from the Renaissance to the present.
Study of American painting, sculpture, architecture, decorative arts and photography from Colonial times to the present. Traces the influences on American art from European sources, and surveys the variety of styles which the United States has experienced.
Introduction to the painting, architecture and crafts of India, Southeast Asia, China, Korea, and Japan. Overview of the relationship of artistic, cultural and historical events in both East and West, stressing exchange of influences and ideas.
History of women in art. The study of the roles and contributions of women in art as artists, patrons and subjects of the male gaze.
Overview of the traditional arts of African tribes and kingdoms of Oceania and Australia, and of Native Americans located north of Rio Grande River; their painting, sculpture, masks, ritual objects and architecture.
Introduction to the art of Pre-Columbian Meso-America and Andean South America. Major monuments examined in their cultural contexts.
Overview of architecture, structural systems and urban design, from ancient civilizations to the present day.
Overview of the history of photography from 1839 to the present. Organized in a topical framework, course examines the development of photography, its role in visual communication and artistic expression, as well as its contribution to the visual arts. Technological developments and individual photographers are also discussed.
Prerequisites: ART 120 and ART 140.
Offers students the opportunity to gain knowledge of and practical experience in a variety of arts-related collegiate and work environments. Students will be able to build a portfolio and writing samples as well as seek advise from professionals working in field.
Prerequisites: ART 121 or ART 133 or ART 151 or ART 191 or ART 171.
Provides students an opportunity to produce, edit and document works of visual art for inclusion into portfolio for college transfer or professional development. Students will learn about professional opportunities in the visual arts and create documents necessary to pursue those opportunities.
Lecture, onsite and in-class investigation of the inner workings of museums, galleries, studios and other cultural institutions. Students will spend a concentrated amount of time in Los Angeles to gain insight into the inner workings of the contemporary art world.
Basic principles of drawing studied through the use of many media, with emphasis on dark and light, perspective and rendering.
Study of formal and conceptual problems related to intermediate level drawing. Art criticism, theory, abstraction and contemporary concerns will be introduced. Primarily black and white media will be employed, with an introduction to color media.
Prerequisites: ART 120 and 121.
Study of formal and conceptual problems related to advanced-level drawing. Art criticism, theory, abstraction and contemporary concerns will be further investigated. Both black and white media, as well as color media, will be employed.
Basic course in drawing the figure, supported by study of artistic anatomy; emphasis on drawing as information-gathering; use of black and white media.
Course Advisories: ART 120 and ART 140.
Basic principles of animation studied through drawing and other media. Includes analytical understanding and depiction of movement of things and natural life forms in the real world.
Further study and application of animation principles through drawing, with emphasis on character development, timing, action analysis, complex movement and the filmmaking process.
Course Advisories: ART 101 and ART 140.
An in-depth study of drawing places and spaces. Students will work onsite in and around the Santa Barbara area as well as in the studio. Detailed studies will be achieved through various drawing exercises.
Prerequisites: ART 120 and ART 140 or ART 132.
Studio course working with across the traditional borders of drawing and painting. Students will be given assignments focused on encouraging use of a variety of media, format and approach.
Study of painting in the oil medium with additional emphasis on the painting process.
Introduction to the foundation elements of painting. Focus on developing bedrock craft, technical and theoretical skills.
Prerequisites: ART 130 or ART 131 or ART 132.
Principles of more complex compositions using oil or acrylic medium, emphasizing the creative attitude and different techniques.
Prerequisites: ART 133 and ART 137.
Explores contemporary and historical art theory and methods of incorporating it into a student's studio practice.
Prerequisites: ART 132 or ART 140.
Painting course concentrating on the figure, portraiture and narrative painting incorporating the human form. Students will paint from a model, direct observation, drawing and photography.
Exposes students to a variety of approaches and techniques of painting, while significantly increasing their exposure to contemporary and historical artists and ideas. A range of structured and open-ended assignments will be the dominant format of the course. Emphasis will be placed on expanding the skill set of each student.
Beginning course in 2-D studio art; fundamentals of composition and color. Theory and application of image-making.
Beginning course in three-dimensional design. Introduction to form, structure, the elements of design and three-dimensional design theory. Includes an exploration of various materials and techniques, with emphasis on the creative process.
Explores issues and practices of time-based art: interactive and chance-derived work, installation, performance, video, sound, and digital media. Studio projects are combined with related critical theory and historical and emerging developments in the field.
Intermediate level course exploring issues and practices of time-based art: interactive and chance-derived work, installation, performance, video, sound, and digital media.
Course Advisories: ART 101 and ART 141.
Introductory course on the techniques employed in working with clay. Topics include wheel throwing, hand-building, engobe and glaze application.
Prerequisites: ART 141 and ART 150.
Continuation of ART 150 in ceramics. Expanding the skills in forming techniques, wheel throwing and slab construction. Various glaze applications. Exploration of surface treatments: intaglio, sgraffito, majolica, mishima, wax resist. Rakus and other firing techniques also covered.
Skills Advisories: Eligibility for ENG 98 and ART 103.
Continuation of ART 151. Designed for students interested in developing a personal style in their work. Advanced wheel-throwing techniques, glaze application and formulation. Includes theory and practical application of kiln operation, electric and gas fired, oxidation and reduction.
Introduction to three-dimensional and relief sculptural forms. Emphasis will be placed on learning sound fundamental skills of clay forming, design, surface treatment and firing practices as applied to aesthetic and conceptually-based projects.
Introduction to principles, techniques and materials used in the formulation of high temperature clay bodies and ceramic glazes.
Advanced-level course exploring issues and practices of time-based art, interactive and chance-derived work, installation, performance, video, sound and digital media.
Course Advisories: ART 101 and ART 120 and ART 141.
Introduction to the materials, tools and techniques of sculpture. Fundamentals of sculpture production explored, including methods of carving, construction and casting.
Prerequisites: ART 141 and ART 170.
Continuation of ART 170. Studies and projects in lasting materials and the use of power tools. Three-dimensional aesthetics and problem-solving techniques included.
Includes the generation of unique individual projects, from conception to formal presentation. Relying on foundation courses, emphasis is on three-dimensional, problem-solving aesthetics.
Introduction to a variety of casting techniques and sculptural relationships. Covers all steps of the casting process, but concentrates on the early stages of casting. Possible casting techniques to include plaster, wax, ceramic and poured metals.
Introduction to traditional bronze casting techniques, particularly the early stages of casting - wax working, gating, the investment processes, furnace procedures and metal pouring.
Focuses on the sculptural applications of casting. More challenging casting problems approached. Covers all steps of the process, but concentrates on the later stages of casting - metal pouring, divestment, chasing, finish and patination.
Focuses on the advanced sculptural applications of casting. More challenging casting problems researched. Contemporary and experimental casting techniques explored.
Introduction to aluminum casting techniques used in the formal development of a sculptural image. Covers all steps of the process, but concentrates on the early stages of casting-mold making, wax working, gating, investment processes, furnace procedures and metal pouring.
Focuses on the advanced applications of aluminum casting. More challenging casting problems approached. Contemporary and experimental casting techniques explored.
Concentration on sculpture fabrication. Covers a variety of assemblage techniques and materials, including wood and metal. Concentration on the additive processes and elements of design in sculpture fabrication.
Explores a variety of assemblage techniques and materials, including wood assemblage and welding.
Concentration on sculpture fabrication. Covers advanced techniques and materials, including Mig and Tig welding.
Skills Advisories: Eligibility for ENG 110, ENG 110H.
Course Advisories: ART 101, ART 140, ART 141.
Provides an introduction to exhibition practices for both gallerists and artists including the basic skills of exhibition planning (from proposal to design), installation (hanging, lighting, labeling), marketing, and budgeting. Gallery practicum and field trips are required.
Course Advisories: ART 101 and 120 ART 140.
Introduction to printmaking history and methods. This class explores materials in relief, intaglio, silkscreen and contemporary practices.
Course Advisories: ART 101 and ART 120.
Expanded study of the processes covered in Art 190, with the introduction of multiple-layer and mixed-media printmaking. Readings related to theoretical application of print in fine art will be covered.
Course Advisories: ART 101 and/or ART 120.
Continuation of the printmaking processes covered in Art 191. Students choose their own advanced print process in response to each assignment. Processes include multiple-color intaglio, relief and silkscreen. Experimental forms of multi-media printmaking are introduced. An artist statement related to the print work to be written at the beginning and end of the course.
Course Advisories: ART 101 and ART 120 ART 140.
Introduction to techniques used in making silkscreens; Photographic and non-photographic stencil processes employed.
Course Advisories: ART 101 and 103.
Expansion of the silkscreen processes covered in ART 193. Expands the exploration of the technique to include mixed-process silkscreen prints and sculptural screen printing techniques.
Introduction to a theory-based approach to contemporary Printmaking and a continued study of technique. Readings, lecture and discussion will be used to guide the creation of portfolio artwork with an emphasis on the conceptual territory of the medium.
Course Advisories: ART 102A and ART 140.
Studio theory and practice of making small-edition multiple and unique artists' books.
Survey of the evolution of major styles, meanings, iconography and innovations in art during the Renaissance and Baroque periods, with investigation of the social, cultural, political and philosophical contexts of the art. Emphasis on the interdisciplinary aspects of expressive behavior during these periods.
Surveys European and American art of the 19th century and artistic innovations that defined modernism and the avant-garde. Historical context of art, including democracy, worker's rights, suffrage, and abolition are highlighted. Romanticism, Realism, Impressionism and Post-Impressionism style periods are surveyed.
Introduction to the art produced by the non-European world. International survey of the art of Asia (India, China, Japan), Pre-Columbian Meso and South America, Native North America, Africa and Oceania (the South Seas).
Skills Advisories: Eligibility for ENG 100 or 103 or 110 or 110H.
Survey of Islamic art and architecture from Asia to North Africa and Spain, from the era of Muhammad 19th century C.E. Considers the regional artistic manifestations of the vast Islamic world. Analyzes how intercultural relations between Europe and the Islamic world have influenced both spheres of art.
Older adult students explore painting materials, set-up and palette-mixing, color combinations that work, and the use of light. Learn artistic techniques of applying paint to canvas, including brushes and palette knife. Students gain exposure to still-life, landscape, representational, abstract, and impressionistic.
This course allows older adult students to explore the regenerative benefits of creating art for enjoyment, relaxation, and enhanced quality of life. A gentle, guiding course of painting instruction using water color, collage, and drawing helps the older adult student express and refresh their outlook on life while healing. Students learn traditional as well as imaginative interpretations of still-life, landscape, symbols, and can pursue areas of personal interest.
This course is designed to enhance, improve and increase the older adult's knowledge and skills in watercolor painting. Students receive lessons in color theory, value, composition and a multitude of watercolor techniques. Older adults can improve hand-eye coordination and retention of information and theory by taking this course.
Gaining an understanding of color, design, and texture the older adult students will exercise memory, critical thinking skills, and manual dexterity as they learn novel painting applications. Students learn to see oil and acrylic painting in a new, inspired way through the exploration of unique approaches that incorporate various parts of the brain.
This course teaches older adults how to develop an art journal. Older adults will record their daily lives through the use of mixed media techniques in collage, painting and writing.
An indoor painting course designed for older adults who have beginning to advanced skills. Color theory, including split-primary color mixing, creating shadows, and using color to enhance the perspective aspect of painting. Art history is discussed to compare different techniques. Composition is strongly dialogued and different still-life and other motivational projects are used to learn about what makes a good painting. Enhances mental acuity, hand-eye coordination, self-confidence and socialization skills.
Older adult students learn design principles in art, developing communication, self-confidence, and critical thinking skills. By studying principles of design, composition, perspective and color theory, students develop abstract thinking, creative decision making, and learn the vocabulary of the non-verbal language of art.
Personalized instruction will focus on composition, simplifying perspective, color and style. The older adult student learns how adding color to ink sketches can transform even the simplest subject into a work of art while using Santa Barbara’s picturesque scenes as subject matter. Increases student’s ability to improve observational skills by focusing on the visual details of the immediate and community environment.
Through lecture, demonstrations and handouts, the older adult student will learn a variety of beginning and continuing student level approaches and techniques to watercolor. Older adult students will exercise cognitive and social skills to support the developmental tasks of aging. Students will learn a variety of styles, color theory and composition. The class includes a strong emphasis on color and light. Students will receive individual and group attention and critiques.
The older adult student use acrylics to experiment and create rich vibrant paintings. Color theory explored, composition and design principles discussed, as the student creates a series of individual paintings, increasing ability to retain and apply knowledge, increase facility with using tools, and enhance visual focus and attention to detail and structure.
Through lecture, demonstrations and handouts, the older adult student will learn a variety of beginning and continuing student level approaches and techniques to watercolor. Older adult students will experience the benefits of painting outdoors and will exercise cognitive and social skills to support the developmental tasks of aging. Class includes a strong emphasis on color and light. Students will receive individual and group attention and critiques.
Older adult students concentrate on composition, simplification of subject and presentation. Students are encouraged to bring to class new ideas, works in progress or rework older paintings. Class is structured as a semi-tutorial open studio atmosphere.
This course teaches older adults the fundamentals of light and shadow in painting. Technical skills in the use of oils, acrylics, and watercolors, are utilized to capture the quality of light and color relationships on a two-dimensional surface. Older adults improve fine motor skills and hand eye coordination through weekly application of skills learned.
The course will cover color mixing and color theory, composition, the elements of design and how to make your paintings come to life by utilizing the effects of light and shadow. Older adults, students are encouraged to paint freely and discover individual style. Includes painting demonstrations and creative warm-up exercises. Improves retention and application of knowledge and theory, ability to notice details in light and shadow, and enhances self-confidence and socialization skills.
This course introduces older adults to the art of botanical illustration. Working in line and half-tone, with pencil, pen and watercolor, the older adult student of nature learns to depict plant species and understand botanical form and function. Students may focus on native plants or backyard garden varieties. Includes attention to plant anatomy, form, function, and composition and practice with color and abstraction.
The older adult student will learn the history of printmaking and the necessary technical skills to create, revise and assess an original print. Topics include relief and color reduction prints, intaglio, collagraphs, solarplates and monotypes.
The older adult student discovers how to make bright, loose, free-flowing paintings filled with light and color using layers of transparent watercolor and white paper. Students use paper, paints, water and brushes and experiment with color to create interpretive florals, landscapes and abstracts. Older adult students of all levels are welcome in this slow, relaxed approach to the medium. Features demonstrations plus time for personalized instruction in the basics of dynamic composition, value control, color temperature and color mixing. Enhances visual focus on detail, color and composition and retention of information.
The older adult student experiences the challenges and creativity of portrait drawing and painting, increasing hand-eye coordination and dexterity while learning. The class will begin by drawing and gradually move into painting. Topics to be explored will include the study of structure and form rather than features, an exploration of the study of light on the head and the integration of the head into the figure, acquiring and retaining knowledge and enhancing ability to retain information.
This course teaches older adults the art history, composition, and hands-on techniques for collage, assemblage, and mixed media. Older adults will maintain or improve dexterity and mental acuity through the weekly completion of collage and mixed media projects, emphasizing the principles and elements of composition.
This course provides older adults a comprehensive, historical overview of abstract art and practical instruction in the painting of abstract pictures. Students will explore methods, materials, composition, color, and intuitive uses of their imagination through new techniques.
A study in painting in oils on canvas with brush and palette-knife. The older adult student learns a variety of styles in painting including representational, impressionism, post-impressionism, cubism and abstract expressionism (non-objective and geometric). They will receive both group and individual guidance, and the assignments will include a variety of subject matter. Some of the assignments are in coordination with local the museum. Students are also encouraged to do some original painting of their own choosing. Can improve focus on visual detail, retention and understanding of information, and manual dexterity in using painting tools.
Older adult students identify and examine personal interests and aptitudes in the arts. Students of all levels sketch and paint in an open lab setting assimilating the principles and ideas derived from studying master artists and viewing great works of art.
This course is designed for the older adult who wants to draw and deepen their understanding of drawing and composition. Students will expand their observational skills and learn to develop skills to create interesting compositions. Students will learn about gesture, shadows and shading with the use of a variety of materials, enhancing ability to focus on visual detail. Two outside campus field trips to Santa Barbara Mission and Natural History Museum.
Beginning and intermediate level older adult students have the opportunity to draw directly from a live model for three hours. Older adults develop manual dexterity and coordination and benefit from brain enhancing, creative self-expression. Individualized instruction is provided to address student’s diverse learning styles and abilities.
Older adult students explore a variety of drypoint printmaking processes in both intaglio and relief formats. Students develop creative self-expression, exercise manual dexterity, and enhance mental acuity while using printmaking tools, equipment, papers, and inks.
Older adults will enhance their ability to draw and paint the human figure. Short and long poses by live models contribute to skill acquisition in perception, expression, composition, and proportion.
Basic drawing instruction for beginners and mature older adult artists who seek to improve their skills in portraiture using dry media such as pastel, charcoal, pencil, and crayon, face to full figure, working from the model. Longer poses will allow time to create a finished picture. Lessons include gesture drawing, form, contour drawing and composition. Includes demonstrations and individual critique by the instructor. Improves dexterity, focus on visual detail, and socialization skills.
This course teaches older adults basic drawing skills and techniques. The class focuses on the needs of students who have never drawn, teaching them to see and record observations on paper with the use of pencils, charcoal, and pastel.
Beginning and intermediate level older adult students have the opportunity to draw directly from a live model . Older adults develop manual dexterity and coordination and benefit from brain enhancing, creative self-expression. Individualized instruction is provided to address student’s diverse learning styles and abilities.
Beginning level older adult students have the opportunity to draw directly from a live model for three hours. Older adults develop manual dexterity and coordination and benefit from brain enhancing, creative self-expression.
Older adult students will learn the fundamentals of stone carving, focusing on the basic techniques of carving and the development of ideas and forms. Hand tools will be used to carve alabaster.
Students design jewelry and learn essential techniques for making beaded jewelry, including crimping and plain and wrapped loops. Older adults exercise manual dexterity, develop core body strength, and improve cognitive function such as focus and retention of information. Topics include types and history of beads, sources for beads, and design ideas. Course designed for beginning older adult student.
Older adult students will receive instruction on how to use various jewelry making tools and equipment to create Southwest style jewelry. Students will improve mental focus and physical dexterity, exercise creative self-expression, and benefit from social engagement in a group activity.
Older adult students learn the technical and challenging processes used in art jewelry. Techniques may include but are not limited to one of the following; roller printing and stamping, hydraulic press, repoussage and chasing, chain making, filigree, fabric techniques in metal, engraving, metal inlay, etching, reticulation, fusing, granulation, mokume gane and metal lamination, cold connections, boxes and lockets, bone carving and hanging, keum boo, stone setting or coloring metals.
Older adult students learn how to make silver rings, earrings, pins, and pendants. Techniques and applications for the older adult student in use the tools, work with materials, set gemstones and other fabrication techniques. Developed for the beginning older adult student.
Older adult students develop mental focus and hand-eye coordination through practice of jewelry making soldering skills. Students develop confidence and self-esteem through mastery of torch use and complex design issues that require many solder connections. Topics include health and safety considerations, torches, fluxes, solders, and special set-ups.
This course teaches older adults jewelry making skills through the Lost Wax Casting method. Includes instruction in wax carving, preparation, burnout, and the casting process. Students will improve dexterity and mental acuity in the completion of a cast silver jewelry item.
A class for older adults to create and/or finish a jewelry related project with guidance based on using proper procedure in developing, executing, and finishing a design. Students learn how to research and integrate design forms, develop step by step procedure utilizing the characteristics of the materials involved, finish and present their completed pieces.
Older adult students learn the art of wire wrapping and wire sculptures using fused glass, beads, pearls and gemstones to create pendants, rings and bracelets. Course is designed as an easy and creative application for the older adult. No soldering required in completing jewelry pieces.
Older adults will improve beadwork skills by creating more advanced necklaces, earrings, and bracelets. Students exercise manual dexterity, develop core body strength, and improve cognitive functions such as focus and retention of information. Decision making and problem solving skills are practiced to complete complex assemblage projects as well as bead weaving techniques and beaded appliqué. Previous beading experience recommended.
Always new and fresh, this class is vital if you have inherited pieces or are fascinated by antiques, cultures, art and history. This is a "road show"-type class without values, but with the keys to telling genuine from fake. Short lectures are followed by physical examination of antiques and discussions about our cultural history. Antique collectors will have an opportunity to share their knowledge. Covers topics as diverse as: plein air painting, furniture, folk art, antique silver, Oriental arts, Americana, arts and crafts, art glass, ceramics, Native American basketry, quilts, textiles, prints, book arts and much more.
Older adult students practice self-expression by viewing works of art and discussing basic art principles. Students familiarize themselves with the work of a number of artists by viewing prints of the artwork, then express their feelings discussing the prints and the artist’s background. Discussion topics include art principles such as color, line and shape, and recollections and associations about art, history and life.
The older adult student will learn how to write an alphabet based on correct use of pen nibs and pen angles. Topics include correct letter formation and basic techniques and equipment used by contemporary calligraphers.
This class is designed for older adults with previous experience working with glass. This will be a hands-on class for those wanting to advance their skills in the art of leaded stained glass, copper foil stained glass and mosaic. The instruction in this class will take the student through every stage needed to fabricate a glass project. It will also include weekly handouts covering the history of stained glass from its humble beginnings to present day. Course enhances mental acuity, manual dexterity, and attention to visual detail.
This class is designed for older adults who have no previous experience working with glass. This will be a hands-on class for those wanting to learn the art of leaded stained glass, copper foil stained glass and mosaic. The instruction in this class will take the student through every stage needed to fabricate a glass project. It will also include weekly handouts covering the history of stained glass from its humble beginnings to present day.
Students learn techniques and methods of flower arranging for applications in the home or office. Topics include the principles of using a wide variety of plants, materials, and accessories.
Older adult students learn the design techniques and applications used by professional florists. Prepares students for professional or at home applications. Topics include bouquets, high style arrangements and flowers to wear and carry. One-on-one instruction by a professional florist helps students create floral projects that enhance self-esteem and confidence. Students must transport final products from classroom upon completion.
Older adult students of all levels receive individualized instruction in the glass arts, including leaded stained glass, copper foil stained glass, fusing, mosaic and sandblasting.
Older adult students will increase manual dexterity and strength as they create useful and decorative projects by learning the age-old craft of hand weaving on a loom. Topics include project planning, warping the loom and finishing projects as well as weaving theory and techniques. Designed for beginning, intermediate and advanced students.
Older adult students in this beginning class learn the basic techniques of decorative art to use for the home or as gifts. Using bottled acrylic paints older adult students learn techniques in shading, highlighting and use of color. Students build self-esteem and confidence as they receive instructor guidance to create distinctive projects.
Older adults will learn basic skills to create several glass fused pieces. Emphasis will be placed on creating functional, yet artistic pieces, including a small plate or bowl.
Older adult students make clay objects using hand techniques or the potter’s wheel. Students will improve hand strength and coordination, develop cognitive flexibility to learn and execute a new skill, experience the sensory and creative stimulation fostered by working with clay and exercise socialization skills. Topics include the principles of clay construction, glazing, the kiln firing process, and increasingly difficult clay techniques.
The beginning-level older adult student will learn to work with the most refined of the high fire clays. Challenges of forming and decorating porcelain, as well as the techniques necessary to develop personal style will be addressed.
The older adult student will learn to sculpt the human figure in water-based clay. This class will focus on techniques and skills needed to construct a three-dimensional, proportional, anatomical figure in a variety of poses from live models. Instruction will include use of tools, materials and armature construction.
Beginning level older adult students make clay objects using a combination of pinch, coil, and slab techniques. Students will improve hand strength and coordination, develop cognitive flexibility to learn and execute a new skill, and exercise socialization skills to effectively advocate for themselves in daily life activities. Topics include the principles of clay construction, glazing, the kiln firing process, and increasingly difficult clay techniques.
The older adult student will learn basic knitting techniques and make simple projects to practice techniques. Class will help students improve manual dexterity, concentrate on detail, and enhance socialization skills.
This class is designed for the student who has a desire to learn to sew and/or improve their sewing skills. Students will be guided through the techniques necessary to construct a project of their choice. Projects will provide the opportunity for creativity, achievement and success through a combination of theory and practical experience.
For older adult students that knit or would like to learn how to knit. This workshop offers an opportunity for beginners to learn to knit and for experienced knitters to conquer problems, learn new techniques and increase confidence and ability in knitting. Begin or complete projects and to receive expert personal attention in the craft of knitting in a supportive and relaxing atmosphere.
Designed to help older adult students with basic knitting skills learn new techniques and finishing methods. Techniques include laces, cables, color knitting, smocking and circular knitting. Course includes new finishing methods and fixing mistakes without ripping. Provides the older adult student a relaxed enjoyable environment to develop new skills and enhance socialization while working with fellow students.

matches:
ART 120
ART 140
ART 121
ART 133
ART 151
ART 191
ART 171
ART 120
ART 120
ART 140
ART 101
ART 140
ART 120
ART 140
ART 132
ART 130
ART 131
ART 132
ART 133
ART 137
ART 132
ART 140
ART 101
ART 141
ART 141
ART 150
ART 150
ART 103
ART 151
ART 101
ART 120
ART 141
ART 141
ART 170
ART 170
ART 101
ART 140
ART 141
ART 101
ART 140
ART 101
ART 120
Art 190
in fine
ART 101
ART 120
Art 191
ART 101
ART 120
ART 140
ART 101
ART 193
ART 102
ART 140


Miroslaw GORTAT, Henryk Bienkowski, Miroslaw Filipkowski, Artur Lapinski, Jan Swaltek, on behalf of themselves and on behalf of all others similarly situated, Plaintiffs–Counter–Defendants–Appellees, Artur Kosiorek, Henryk Stoklosa, Plaintiffs–Appellees, Grzegorz Drelich, Plaintiff–Counter–Defendant, v. CAPALA BROTHERS, INC., Pawel Capala, Robert Capala, Defendants–Counter–Claimants–Appellants.
Before CALABRESI, STRAUB, and LIVINGSTON, Circuit Judges. Robert Wisniewski, Robert Wisniewski P.C., New York, NY, for Plaintiffs–Counter–Defendants–Appellees. Felipe (Philip) E. Orner, Flushing, NY, for Defendants–Counter–Claimants–Appellants.
After nearly seven years of litigation between Miroslaw Gortat, Henryk Bienkowski, Miroslaw Filipkowski, Artur Lapinski, and Jan Swaltek, acting on behalf of themselves and others similarly situated (collectively, “Plaintiffs”), and Capala Brothers, Inc., Pawel Capala, and Robert Capala (collectively, “Defendants”), in which Plaintiffs prevailed, the District Court for the Eastern District of New York (Glasser, J.) awarded Plaintiffs' counsel $514,284.00 in attorneys' fees and $68,294.50 in costs. Of that amount, it awarded $10,425 to reimburse Plaintiffs' counsel for costs incurred retaining an expert accountant for Plaintiffs' affirmative case against Defendants, brought pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the New York Labor Law (“NYLL”). Defendants appeal, arguing that the district court's award of fees and costs constituted an abuse of discretion. Of particular relevance here, they contend that the district court was not permitted to award costs reimbursing Plaintiffs' counsel for expert fees pursuant to 29 U.S.C. § 216(b) of the FLSA. In this opinion, we consider this claim. We conclude that because § 216(b) does not explicitly authorize awards reimbursing plaintiffs for expert fees, the district court erred in granting such an award pursuant to this provision. We vacate the district court's award of $10,425 in costs for expert fees and remand to the district court to consider whether the NYLL authorizes the award of such fees and, if so, whether to award them pursuant to the NYLL. For the reasons stated in the summary order issued simultaneously with this opinion, we affirm in part and reverse in part as to Defendants' other challenges to the judgment awarding Plaintiffs' counsel attorneys' fees and costs.
In August 2007, Plaintiffs filed a complaint in the Eastern District of New York against Defendants, alleging claims under the FLSA and the NYLL. Plaintiffs are former employees of Defendants' contracting business. They sought compensation for unpaid regular and overtime wages, liquidated damages, punitive damages, costs, and attorneys' fees. Defendants answered the complaint and filed counterclaims against several of the plaintiffs for negligence, conversion, breach of fiduciary duty, and tortious interference.
The case proceeded to trial nearly six years later. In the interim, the district court issued a number of opinions that, inter alia, dismissed some of Defendants' counterclaims, denied Plaintiffs' motion for summary judgment on the remaining counterclaims, and denied Defendants' motion for summary judgment and motions to decertify the class. See Gortat v. Capala Bros., 585 F.Supp.2d 372, 376–77 (E.D.N.Y.2008); Gortat v. Capala Bros., 257 F.R.D. 353, 355–56, 361, 365 (E.D.N.Y.2009); Gortat v.. Capala Bros., No. 07 Civ. 3629(ILG)(SMG), 2011 WL 6945186, at *1–2 (E.D.N.Y. Dec. 30, 2011); Gortat v. Capala Bros., No. 07 Civ. 3629(ILG)(SMG), 2012 WL 1116495, at *1 (E.D.N.Y. Apr. 3, 2012). The trial on Plaintiffs' FLSA and NYLL claims and Defendants' remaining counterclaims took place in April and May of 2013. On May 10, 2013, the jury returned a verdict finding Defendants liable on Plaintiffs' FLSA and NYLL claims, and finding not liable those plaintiffs against whom Defendants had filed counterclaims. After a separate damages phase of the trial, the jury found that Defendants had willfully failed to pay wages under both the FLSA and the NYLL, and it awarded damages to Plaintiffs for their unpaid wages and overtime. After receiving submissions from the parties, the district court ultimately awarded Plaintiffs damages totaling $293,212.41. Gortat v. Capala Bros., No. 07 Civ. 3629(ILG) (SMG), 2013 WL 3010827, at *2 (E.D.N.Y. June 18, 2013). The district court adopted, in large part, Plaintiffs' proposed judgment for liquidated damages, and awarded them prejudgment interest on their NYLL claims. Gortat v. Capala Bros., 949 F.Supp.2d 374, 385–86 (E.D.N.Y.2013).
Subsequently, Plaintiffs' counsel filed a motion seeking $887,765 .85 in attorneys' fees and $80,324.11 in costs. Plaintiffs' counsel's request for costs was supported by several different invoices that separately detailed the costs associated with Plaintiffs' affirmative claims and those associated with the counterclaims. These invoices mainly reflected routine “taxable” expenses that 18 are recoverable under Federal Rule of Civil Procedure 54(d)(1), such as filing, service, transcription, and electronic research. In addition, Plaintiffs requested $2,200 for storage costs, and $8,779.61 in interest. They also requested $11,475 for costs incurred engaging the services of an accounting expert, Glenn Pannenborg.
Plaintiffs' counsel's motion for fees and costs was addressed in the first instance by Magistrate Judge Steven M. Gold, who issued a Report and Recommendation regarding the motion on June 4, 2014. Judge Gold recommended a substantial reduction from the amount requested by Plaintiffs' counsel, proposing an award of $514,284.00 in attorneys' fees and $68,294.50 in costs (for a total amount of $582,578.50). Regarding costs, Judge Gold determined that the $57,869.50 which Plaintiffs' counsel sought to recover for routine taxable expenses were well-documented and reasonable. He recommended, however, denying the amounts sought by Plaintiffs' counsel for storage costs and for interest on Plaintiffs' costs. In addition, he recommended that Plaintiffs only partially recover the costs attributed to Pannenborg's expert fees. Of the $11,475 requested, $1,050 was incurred in connection with Defendants' counterclaims. Judge Gold recommended denying an award for this portion of the expert fees on the grounds that “expert fees are not ordinarily taxable absent a fee-shifting statute.” J.A. 1036. Yet, he recommended that Plaintiffs' counsel be able to recover the remaining $10,425, noting that “courts have awarded expert fees to prevailing parties in cases brought pursuant to the FLSA.” J.A. 1035. He did not discuss whether such fees are recoverable pursuant to the NYLL.
We review a district court's decision regarding the amount of any award of attorneys' fees and costs for abuse of discretion. Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 105 (2d Cir.2012). The question whether fees or costs may be awarded under a given statute, however, is one of statutory interpretation that we review de novo. See id.
This Court has not yet addressed whether, above and beyond the per diem and travel allowances permitted to be awarded for witnesses pursuant to 28 U.S.C. § 1920 and 28 U.S.C. § 1821,2 a district court may award expert fees to a prevailing plaintiff pursuant to 29 U.S.C. § 216(b), which provides that where a defendant has violated the provisions of sections 206, 207, or 215(a)(3) of the FLSA, “[t]he court ․ shall, in addition to any judgment awarded to the ․ plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.” Here, we conclude that this provision does not authorize district courts to award costs reimbursing plaintiffs for expert fees. We therefore vacate the district court's award of $10,425 to Plaintiffs' counsel representing costs incurred to retain accounting expert Glenn Pannenborg for Plaintiffs' affirmative claims. We remand this case to the district court for the limited purpose of determining whether the NYLL provides a basis for recovery of these expert fees and, if so, whether to award them on that basis.
The Supreme Court has made clear on multiple occasions that, absent explicit statutory authorization, a district court may not award reimbursement for expert fees beyond the allowances authorized by 28 U.S.C. § 1920, as limited by 28 U.S.C. § 1821. See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 301 (2006) (“[N]o statute will be construed as authorizing the taxation of witness fees as costs unless the statute refers explicitly to witness fees.” (internal quotation marks and brackets omitted)); W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 86 (1991) (witness fees authorized by § 1920 as limited by 28 U.S.C. § 1821 “define the full extent of a federal court's power to shift litigation costs absent express statutory authority to go further”); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (“[A]bsent explicit statutory or contractual authorization for the taxation of the expenses of a litigant's witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920.”). Unlike other statutory provisions explicitly authorizing such reimbursement, 29 U.S.C. § 216(b) of the FLSA does not expressly address awards reimbursing prevailing plaintiffs for expert fees. See, e.g., 15 U.S.C. §§ 2618(d), 2619(c)(2) (providing that a court may award the “costs of suit and reasonable fees for attorneys and expert witnesses ” (emphasis added)); 15 U.S.C. § 2060(c) (“A court may in the interest of justice include in such relief an award of the costs of suit, including ․ reasonable expert witnesses' fees.”); 42 U.S.C. § 1988(c) (“In awarding an attorney's fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court ․ may include expert fees․”). In particular, § 216(b)'s reference to “costs” does not constitute explicit statutory authorization to award expert fees. In Arlington, the Supreme Court stated that the word “ ‘costs' is a term of art that generally does not include expert fees.” 548 U.S. at 297 (emphasis added; internal quotation marks omitted). In the context of a fee provision contained in the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(i)(3)(B), that likewise referred to “costs,” the Supreme Court stated that “[t]he use of this term of art, rather than a term such as ‘expenses,’ strongly suggests that § 1415(i)(3)(B) was not meant to be an open-ended provision that makes participating States liable for all expenses incurred by prevailing parents in connection with an IDEA case.” Id.
Arlington's reasoning is applicable here. Because 29 U.S.C. § 216(b) of the FLSA does not explicitly authorize courts to award reimbursement for expert fees, it does not permit a court to award such fees beyond the allowances recoverable pursuant to 28 U.S.C. § 1920 as limited by 28 U.S.C. § 1821.3 For this reason, the district court erred in awarding $10,425 in costs for expert fees pursuant to this provision. We vacate this award and remand for the limited purpose of considering whether expert fees are recoverable pursuant to the NYLL and, if so, whether an award of such costs is appropriate here.
In the summary order issued simultaneously with this opinion, we reverse the district court's judgment to the extent that it included within the fee award amounts acknowledged by Plaintiffs' counsel to have been erroneously attributed to Plaintiffs' affirmative claims rather than their defense of the counterclaims, but otherwise affirm the district court's judgment in all respects except for the award of $10,425 in expert fees. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED IN PART, REVERSED IN PART, and VACATED IN PART, and the case is REMANDED.
1. Defendants' remaining claims are addressed in the summary order filed simultaneously with this opinion.
2. In relevant part, 28 U.S.C. § 1920 provides that “[a] judge or clerk of any court of the United States may tax as costs the following: ․ (3) Fees and disbursements for ․ witnesses.” 28 U.S.C. § 1821 provides for, inter alia, payment of witnesses at a per diem rate of $40, as well as reimbursement for witnesses' travel expenses.
3. This conclusion is in accord with the decisions of those of our sister circuits that have addressed the issue. See Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 404–05 (5th Cir.2002); Bankston v.. Ill., 60 F.3d 1249, 1256–57 (7th Cir.1995); Gray v. Phillips Petroleum Co., 971 F.2d 591, 593–95 (10th Cir.1992); Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1573–76 (11th Cir.1988).


A jury convicted Gillam Kerley of having "refuse [d] registration ... in the armed forces," 50 U.S.C.App. Sec. 462(a), and Judge Shabaz sentenced him to three years in prison and imposed a fine of $10,000. Having been born in 1961, Kerley was required to register during the eight-day period preceding August 3, 1980. In a series of letters to the Director and the General Counsel of the Selective Service System in 1981 and 1982, Kerley said he had decided not to register. "I have not registered with Selective Service.... To have registered for the draft in July 1980 would have been lending my tacit approval to those very dangerous trends in our nation.... It was, and is, my duty to disobey. I am proud to be among the ... men who refused to register." On the basis of these letters, the Selective Service System searched its files for evidence that Kerley had registered, and found none. FBI agents then met with Kerley and gave him a blank registration card and mailing envelope together with a letter informing Kerley of "his obligation to register." Kerley gave the agents a statement which accused the government of pursuing a policy of "illegal selective prosecution" (a charge we rejected in United States v. Kerley, 787 F.2d 1147 (7th Cir. 1986)) and said he was "honored" to have been "singled out" for prosecution and was "not intimidated." A month later Selective Service searched its files again, to see whether despite his brave words Kerley had registered. They found nothing, and in November 1982 a grand jury indicted him for having refused to register between August 3, 1980, and July 30, 1982.
This argument might have been compelling under the regime of Toussie v. United States, 397 U.S. 112, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970), which held that, at least for purposes of the statute of limitations, failure to register is not a continuing offense. Congress quickly overruled Toussie, however, by enacting 50 U.S.C.App. Sec. 462(d), which provides that no person shall be prosecuted for failure to register "unless the indictment is found within five years next after the last day before such person attains the age of twenty-six, or within five years next after the last day before such person does perform his duty to register, whichever shall first occur." The statute implies a continuing duty to register. Cf. United States v. McGoff, 831 F.2d 1071, 1099 (D.C. Cir. 1987) (dissenting opinion). Its evident purpose is to induce persons who have failed to register when they should have done so to register late, for by doing so they gain the benefit of a shorter statute of limitations. Under this interpretation, a Kerley who never registers may be prosecuted until he is 31; a Kerley who registers at 20 can be prosecuted only until he is 25. If the "duty to register" began and ended when Kerley was first required to register at age 18, he would have had no inducement to register late rather than never, for one cannot perform a duty after the duty has lapsed. The duty must therefore continue until he reaches 26.
So construed, the statute does not violate the self-incrimination clause of the Fifth Amendment, cf. Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 856-58, 104 S. Ct. 3348, 3357-58, 82 L. Ed. 2d 632 (1984), for it does not compel anyone to register late and by doing so reveal his earlier violation; it merely gives someone who does register late the benefit of a shorter statute of limitations. Although it would be better if Congress had stated more plainly that the duty to register is a continuing one, Kerley does not argue that the statute is unconstitutionally vague. We therefore agree with the Eighth Circuit that the duty to register is indeed a continuing one. See United States v. Eklund, 733 F.2d 1287 (8th Cir. 1984) (en banc).
To upset his conviction on this basis Kerley must show not only that (1) the statute implicitly requires that the nonregistrant knew he had a duty to register and (2) the instructions failed to place this issue before the jury, but also that (3) the failure was plain error. For proper objection to the instruction was not made, Fed. R. Crim. P. 30; and while it is true both that Kerley objected to the quoted instruction at the charging conference and that he was not required to repeat his objection after the instruction was given, see United States v. Hollinger, 553 F.2d 535, 543 (7th Cir. 1977), simply objecting was not enough. Rule 30 requires that the "grounds of the objection" be stated--a requirement taken seriously in this circuit, see United States v. Kehm, 799 F.2d 354, 362-63 (7th Cir. 1986); United States v. Kuecker, 740 F.2d 496, 503 (7th Cir. 1984). Kerley failed to state any ground for the objection. Although he is not a lawyer and was not represented, and allowances are sometimes made for the plight of the unrepresented litigant, see, e.g., Lewis v. Faulkner, 689 F.2d 100, 101 (7th Cir. 1982), so basic a provision of the Federal Rules of Criminal Procedure as the requirement that the litigant state the grounds for his objection to an instruction is not waived for unrepresented defendants. United States v. Redfield, 197 F. Supp. 559, 589-90 (D. Nev.), aff'd per curiam, 295 F.2d 249 (9th Cir. 1961); 5 Orfield's Criminal Procedure Under the Federal Rules Sec. 30:39, at p. 57 (2d ed.1987); cf. Faretta v. California, 422 U.S. 806, 835-36, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975). And it is not satisfied by the defendant's offering his own instruction. The district judge may have thought that the substance of Kerley's proposed instruction was contained in the judge's instructions; it was incumbent on Kerley to point out the judge's error. See, e.g., United States v. Kehm, supra, 799 F.2d at 363; United States v. Markowski, 772 F.2d 358, 362-63 (7th Cir. 1985). Kerley must therefore show that the error (if any) in the instructions was plain error.
The first step on this road is no problem. We have no doubt that the statute should be interpreted to require that the defendant had knowledge of the duty to register. See, e.g., United States v. Klotz, 500 F.2d 580 (8th Cir. 1974) (per curiam); United States v. Rabb, 394 F.2d 230 (3d Cir. 1968); United States v. Boucher, 509 F.2d 991 (8th Cir. 1975); cf. Wayte v. United States, 470 U.S. 598, 612-13 and n. 13, 105 S. Ct. 1524, 1533 and n. 13, 84 L. Ed. 2d 547 (1985); United States v. Borkenhagen, 468 F.2d 43, 50 (7th Cir. 1972). It surely was not Congress's intention to impose criminal liability on eighteen-year-olds who do not register because they don't know they have to, maybe because they have a medical condition that, because it would disable them from military service, they incorrectly assume (cf. 50 U.S.C.App. Sec. 453 and United States v. Shunk, 438 F.2d 1204 (9th Cir. 1971) (per curiam)) excuses them from having to register.
A harder question is whether the instructions withdrew the issue of knowledge of legal duty from the jury. In Liparota v. United States, 471 U.S. 419, 105 S. Ct. 2084, 85 L. Ed. 2d 434 (1985), the Supreme Court, reversing this court, held that the crime of food-stamp fraud requires not only proof of unauthorized use of food stamps but proof that the user knew that his use was unauthorized. The Court assumed that the definition of "knowingly" in the instructions--the identical definition as in the present case--referred to the defendant's knowledge that he was using food stamps (equivalent to Kerley's undoubted knowledge that he was not registering for the draft) rather than to knowledge that the use was unauthorized. See id. at 422, 105 S. Ct. at 2086. But neither in this court nor in the Supreme Court had the government argued that the instructions placed the issue of guilty knowledge before the jury; it was defending a construction of the statute that if upheld would have made the issue irrelevant.
Nonetheless we believe that the instructions in the present case failed to place the issue of guilty knowledge adequately before the jury. Here as in Liparota the definition of "knowingly" was taken from a pattern instruction intended for cases where willfulness is not an element of the crime. See Federal Criminal Jury Instructions of the Seventh Circuit 86-87 (1980) (instruction 6.04 and committee comment). The jury may well have thought that the only "ignorance, mistake, or accident" relevant to deciding whether Kerley had acted knowingly was the kind that occurs when, for example, the letter of registration is misaddressed by the registrant or lost by the post office. (This may have the type of knowledge referred to in Wayte v. United States, supra, 470 U.S. at 613 n. 13, 105 S. Ct. at 1533 n. 13; the opinion is unclear--which is some indication of the potential for confusing knowing what one has done with knowing that what one has done is illegal.) These are examples of mistakes made by persons who know they have a legal duty to register; the jury may not have realized that a mistaken belief that there is no duty to register is also a defense. Or may have: the jury may have thought that the "ignorance" of which the instructions spoke was ignorance of the existence of a legal duty, as well as ignorance of a fact such as the address of the registration office. But the jury was not pointed in that direction, and an instruction is not adequate merely because it does not foreclose a meritorious defense. Cf. Sandstrom v. Montana, 442 U.S. 510, 526, 99 S. Ct. 2450, 2460, 61 L. Ed. 2d 39 (1979). Read naturally, the instruction merely told the jury that it could not convict Kerley if he didn't know what he was doing.
So there was error--but was it plain? A plain error is not just one that is conspicuous but one whose correction is necessary to prevent a "miscarriage of justice," United States v. Young, 470 U.S. 1, 15 and n. 12, 105 S. Ct. 1038, 1046 and n. 12, 84 L. Ed. 2d 1 (1985), and therefore "it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court," Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736, 52 L. Ed. 2d 203 (1977) (footnote omitted). With a qualification to be noted shortly, there is no miscarriage of justice if the defendant's guilt is so clear that he would certainly have been convicted even if the error had never been committed; hence "plain error must be of such a great magnitude that it probably changed the outcome of the trial." United States v. Douglas, 818 F.2d 1317, 1320 (7th Cir. 1987); see also United States v. Markowski, 772 F.2d 358, 363 (7th Cir. 1985); United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir. 1984). No reasonable jury could have concluded that Kerley did not know he had a legal duty to register. Any doubts he may initially have had because a federal district court in another circuit had held the registration statute unconstitutional as discriminating against men--and Kerley never in his correspondence with the Selective Service System, or in any other forum so far as we can tell, expressed any doubt that the statute was constitutional and also was applicable to him--had to have been stilled when FBI agents, well within the period covered by the indictment, gave him a letter telling him he had to register. By then the Supreme Court had upheld the constitutionality of the registration statute, see Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981), so we need not decide whether a sincere and not wholly groundless belief in the unconstitutionality of a statute can make a deliberate refusal to comply with its requirements nonwillful. See United States v. Boardman, 419 F.2d 110, 114-16 (1st Cir. 1969).
Yet a judge in a criminal case may not direct a verdict for the government just because no reasonable jury would acquit. United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S. Ct. 1349, 1355, 51 L. Ed. 2d 642 (1977); United Brotherhood of Carpenters & Joiners v. United States, 330 U.S. 395, 408, 67 S. Ct. 775, 782, 91 L. Ed. 973 (1947). This is true even though such an error might seem the quintessence of harmlessness. By definition, the error is not one that might have changed the outcome, provided the jury was rational--which reviewing courts, in deciding whether errors are harmless, assume juries to be. See, e.g., Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 3107, 92 L. Ed. 2d 460 (1986); Schneble v. Florida, 405 U.S. 427, 431-32, 92 S. Ct. 1056, 1059, 31 L. Ed. 2d 340 (1972); United States v. Lewis, 671 F.2d 1025, 1028 (7th Cir. 1982); United States v. Shepherd, 576 F.2d 719, 724 (7th Cir. 1978). Nevertheless, not only does the harmless-error doctrine not apply when the error consists in directing a verdict against a criminal defendant, Rose v. Clark, supra, 106 S. Ct. at 3106; it also does not apply when the judge directs a partial verdict against the defendant by telling the jury that one element of the crime--such as guilty knowledge in this case--has been proved beyond a reasonable doubt, so the jury needn't worry its collective head over that one. Sandstrom v. Montana, supra; LaFave & Scott, Handbook on Criminal Law 53 (1972). Finally, a set of jury instructions might be so radically defective as in effect to direct a verdict in whole or part against the defendant.
Why taking the case away from the jury should be reversible error--no matter how powerful the evidence of guilt--is, like so many propositions in law, far from obvious as an original matter. To say, as the Supreme Court did in Rose v. Clark, supra, 106 S. Ct. at 3106, that "the error in such a case is that the wrong entity judged the defendant guilty," does not differentiate a criminal from a civil case, where the right to jury trial is not thought inconsistent with the granting of a directed verdict against either party when the case is clear. The distinction may seem to be that the jury has a right to acquit a criminal defendant on bad as well as good grounds but has no corresponding right in civil cases, but again the question is why, and anyway the jury has no such "right" even in criminal cases, popular myth notwithstanding. It has the power to acquit on bad grounds, because the government is not allowed to appeal from an acquittal by a jury. But jury nullification is just a power, not also a right, United States v. Anderson, 716 F.2d 446, 449-50 (7th Cir. 1983); United States v. Dougherty, 473 F.2d 1113, 1137 (D.C. Cir. 1972); Devlin, The Judge 117-48 (1979), as is shown among other things by the fact noted above that a trial error which favors the prosecution is harmless if no reasonable jury would have acquitted, though an actual jury might have done so.
A better ground for the rule against directing a verdict in whole or in part against a criminal defendant may be the civilizing effect that is assumed to result from adherence to the fundamentals of our adversarial criminal process. If the judge had sentenced Kerley before trial (though he had not pleaded guilty), on the ground that his guilt was a foregone conclusion and his demand for trial by jury an obvious delaying tactic and waste of the taxpayers' money, the violation of Kerley's procedural rights would not be excused by proof, however overwhelming, that no reasonable (or for that matter unreasonable) jury would have acquitted him. See United States v. Cerro, 775 F.2d 908, 916 (7th Cir. 1985); Walberg v. Israel, 766 F.2d 1071, 1074 (7th Cir. 1985). It would be a bit like turning a defendant over to a lynch mob--an intolerable procedure even when the defendant's guilt is plain and the punishment imposed by the mob is no greater than the lawful punishment for his crime. But there is a big difference between a judge's directing a verdict against a defendant on the basis of overwhelming evidence of guilt, and a complete bypassing of judicial procedure. So we are right back with the basic question why juries should be allowed to acquit defendants lawlessly, and moreover why their power to do so should be thought such a cornerstone of civilized procedure that an encroachment on that power is reversible error. But we shall not need to plumb these mysteries further; it is enough to note that among the errors to which the harmless-error rule does not apply is an error that has the practical effect of withdrawing the issue of guilt from the jury.
This discussion shows that there is more to the plain-error rule than we let on before. We said a plain error is not only a clear one but one that probably changed the outcome of the case. But we have just seen that some errors are so disturbing that they are deemed plain, and hence reversible even if not properly preserved for appeal, though they probably made no difference to the outcome of the trial. Cf. 3A Wright, Federal Practice and Procedure Sec. 856, at pp. 340-41 (2d ed. 1982). And one of these is to direct a verdict against the defendant. See Rose v. Clark, supra, 106 S. Ct. at 3106.
But Judge Shabaz did not direct a verdict against Kerley; he merely failed to instruct clearly on an element of the crime. The question is whether such an error is always reversible. We think not. Any intimations in Connecticut v. Johnson, 460 U.S. 73, 87-88, 103 S. Ct. 969, 978, 74 L. Ed. 2d 823 (1983) (plurality opinion), that it is were stilled by Pope v. Illinois, --- U.S. ----, 107 S. Ct. 1918, 1922 n. 7, 95 L. Ed. 2d 439 (1987), which rejects the proposition that "a conviction can never stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof." In that case, a prosecution for obscenity, the jury was incorrectly instructed to consider the redeeming value of the allegedly obscene magazines under a "values of the community" standard rather than an objective, "reasonable man" standard.
That is different from a case such as the present one, where an element is omitted from the instructions (or at least not clearly included within them); but we do not see why the difference should be determinative. The Court's emphasis in Pope was on the effect, rather than character, of the error. There are as we have seen errors so gross that they cannot be excused by reference to their certain lack of impact on the jury's deliberations; but merely because the error concerns an element of the crime does not place it in that category. This court has interpreted the category very narrowly. In United States ex rel. Ross v. Franzen, 688 F.2d 1181, 1186-87 (7th Cir. 1982), sitting en banc, we held that a trial judge's refusal to submit a straight not-guilty form to the jury, because the defendant had not denied that he had committed the murder for which he was being prosecuted but had merely argued that he was insane at the time, was harmless error. No rational jury could have acquitted the defendant, as distinct from finding him not guilty but insane. United States v. Sherwood, 770 F.2d 650, 653-54 (7th Cir. 1985), held that failure to define the statutory term "willful" was harmless. Neither case is identical to the present one but both express a reluctance to reverse a conviction because of defective instructions even if the defects concern the elements of the crime, unless the defects might have made a difference to a rational jury.
The picture in the other circuits is mixed. Hoover v. Garfield Heights Municipal Court, 802 F.2d 168, 175-78 (6th Cir. 1986), in reiterating the Sixth Circuit's position that failure to instruct on an essential, as distinct from technical, element of the crime is always plain error, discusses the split among the circuits on this question. The contrary position is illustrated by Redding v. Benson, 739 F.2d 1360, 1363-65 (8th Cir. 1984); but cf. United States v. Voss, 787 F.2d 393, 398-400 and n. 4 (8th Cir. 1986). Our circuit has not taken sides (the question was expressly reserved in Cole v. Young, 817 F.2d 412, 427 (7th Cir. 1987)), but the cases we cited earlier suggest that we would not--and we do not--agree with the Sixth Circuit's position. For one thing, the distinction between essential and technical elements is artificial, to say the least. Every element of a crime is essential; if it is not proved, the defendant walks. United States v. Herzog, 632 F.2d 469, 472 (5th Cir. 1980), a prosecution for willfully supplying false tax withholding information to an employer, held that it was not plain error to fail to instruct the jury that the defendant could not be guilty of the offense unless he was an employee when he supplied the misinformation. This was an essential element of the offense; was it somehow less important than other elements, and hence "technical" under the Fifth Circuit's schema, which is similar to the Sixth's? See United States v. Winship, 724 F.2d 1116, 1124 (5th Cir. 1984). Who knows? The Fifth Circuit has not been consistent: with Winship compare United States v. Brown, 616 F.2d 844, 846 (5th Cir. 1980), denying that there is a "rule that failure specifically to instruct on any single essential element of a crime per seconstitutes plain error," and United States v. Bass, 784 F.2d 1282, 1284-85 (5th Cir. 1986), a case, like Herzog, where the court stated that the defendant's status as an employee was indeed an essential element of the defense but distinguished Herzog on the ground that the omission to instruct had not been prejudicial in that case. The approach in Bass is consistent with this circuit's approach, but not with Winship. The so-called "technical" elements are often (as with federally insured status in United States v. Shively, 715 F.2d 260, 265 (7th Cir. 1983)) those designed to confine federal criminal liability to matters of federal concern, and policing these limitations is not obviously less important than assuring that the jury consider all of the "substantive" elements of the crime.
We prefer the statement by the Second Circuit that, "in general, failure to instruct the jury on an essential element of the offense constitutes plain error." United States v. Golomb, 811 F.2d 787, 793 (2d Cir. 1987) (emphasis added); see also Government of Virgin Islands v. Brown, 685 F.2d 834, 839 (3d Cir. 1982); cf. United States v. Polowichak, 783 F.2d 410, 417 (4th Cir. 1986). That formulation allows for the exceptional case, and this is one. The district judge did not fail to instruct the jury on knowledge. He failed to give an instruction that distinguished between knowledge of fact and knowledge of legal duty; and although this was a serious failure, it was not so egregious as to justify a retrial in a case where the issue of guilty knowledge was not contestable and was barely if at all contested. We are worlds away from the paradigmatic case of plain error per se: the case where the judge directs a verdict of guilty.
Kerley next argues that the district court should have instructed the jury not to convict him merely on the admissions contained in his letters to the Director and General Counsel of the Selective Service System and in his statement to the FBI agents. Kerley appeals to the rule that requires proof of the "corpus delicti" of the crime, which is to say, proof--apart from the defendant's confession or admissions--that a crime actually occurred. The rule is a vestige of a time when brutal methods were commonly used to extract confessions, sometimes to crimes that had not been committed, see generally Note, Proof of the Corpus Delicti Aliunde the Defendant's Confession, 103 U. Pa. L. Rev. 638 (1955), though even in the bad old days confessions had (in principle at least) to be corroborated, see Langbein, Torture and the Law of Proof (1977). Never well adapted to its purpose (on which see id. at 13-14) of preventing the conviction of a person on the basis of an unreliable confession--since the crime might have occurred yet have been committed by someone other than the defendant--the corpus delicti rule no longer exists in the federal system, where the requirement is instead that there must be "substantial independent evidence which would tend to establish the trustworthiness of the statement." Opper v. United States, 348 U.S. 84, 93, 75 S. Ct. 158, 164, 99 L. Ed. 101 (1954); see also United States v. Roth, 777 F.2d 1200, 1206 (7th Cir. 1985); 2 Wright, Federal Practice and Procedure Sec. 414, at pp. 515-17 (2d ed. 1982); see generally McCormick on Evidence Sec. 145 (Cleary 3d ed. 1984). This requirement is easily met in a case such as the present, which does not involve arrest, interrogation, and confession. Kerley's admissions were proudly volunteered, many of them before he was threatened with prosecution. And certainly the failure to give an instruction on corroboration could not have been plain error (Kerley had not requested such an instruction), since Kerley's admissions were well corroborated by the Selective Service System's two searches of its files, which turned up no registration by him. Of course, as Kerley points out, the Selective Service System loses registrations. But the two futile searches combined with Kerley's admissions dispelled any reasonable doubt that Kerley had failed to register. Cf. United States v. Rogers, 454 F.2d 601, 604 (7th Cir. 1971).
Kerley argues that the judge relied on misinformation and improper considerations in sentencing him to three years in prison (two years short of the statutory maximum) plus a $10,000 fine (the statutory maximum). The government with commendable candor acknowledges that there are ambiguities in the transcript of the sentencing proceeding and that a remand for resentencing might be in order. We agree. Although the sentence was lawful in the sense of being within the limits set in the statute, and although the judge's discretion to impose a lawful sentence is plenary in the absence of irregularities, see, e.g., Dorszynski v. United States, 418 U.S. 424, 443, 94 S. Ct. 3042, 3052, 41 L. Ed. 2d 855 (1974); United States v. Hoffman, 806 F.2d 703, 713 (7th Cir. 1986); United States v. Ely, 719 F.2d 902, 906 (7th Cir. 1983), a sentence predicated on misinformation cannot stand, see, e.g., United States ex rel. Welch v. Lane, 738 F.2d 863 (7th Cir. 1984).
Judge Shabaz, however, may disagree, and it is his prerogative to do so, for the sentence he imposed was within the statutory limit. But the sentence may have been based on legal and factual misunderstandings, a ground for remanding unrelated to the length of the sentence. The judge said in the sentencing hearing that a "sentence of three years would mean perhaps one year [of actual imprisonment] or less." (Emphasis added.) This is incorrect. The time served could not be less than one year, because with irrelevant exceptions a federal prisoner must serve a minimum of one-third of his prison sentence before he is eligible for parole. 18 U.S.C. § 4205(a); United States v. Fountain, 768 F.2d 790, 799 (7th Cir. 1985). Thus, Judge Shabaz may have sentenced Kerley to a longer term in prison than the judge realized.
Second, Judge Shabaz appears to have been influenced in his sentencing decision by a belief "that there is the encouragement of the Defendant to others to violate, as perhaps is indicative of his position as the executive director of the Resistance Movement.... And, it would appear ... that it is his continued desire to actively and perhaps illegally oppose those laws without resorting to appropriate legislative action.... And so, in order to deter the Defendant from his continued illegal activity and his aiding and abetting those others who may follow in his footsteps, ... the Court has determined that the higher sentence is the appropriate sentence...." But Kerley is not executive director of the "Resistance Movement"; nor is there any evidence that he ever has or intends to "aid and abet" other persons to violate the registration statute. The Committee Against Registration and the Draft has never, at least so far as we can tell from the record in this case (including the presentence report), engaged in any illegal activities. Its statement of principles does say, "We support many forms of draft resistance, including non-compliance and civil disobedience," but the form of support is unclear and there is no indication that it goes beyond moral support or constitutionally protected advocacy. See, e.g., Hess v. Indiana, 414 U.S. 105, 108, 94 S. Ct. 326, 328, 38 L. Ed. 2d 303 (1973) (per curiam). The Committee states in its amicus brief that the tepidness of its advocacy may have caused it to be ostracized by other organizations that are opposed to draft registration.
But the judge was quite right to dismiss Kerley's Rule 35 motion for reduction of sentence, on the ground of lack of jurisdiction. " [T]he circuit courts have uniformly acknowledged that the sentencing court is without jurisdiction to rule on a motion for reduction of sentence once a notice of appeal has been docketed." United States v. Distasio, 820 F.2d 20, 23 (1st Cir. 1987). Rule 35 comes into play after the defendant has exhausted his appellate remedies. It makes no sense for the judge to be considering whether to reduce the defendant's sentence at the very moment when the issue of sentence is pending in this court on the defendant's appeal.
We held that the district judge had erred in failing to make clear in his instructions to the jury that to be found guilty of the crime of refusing registration in the armed forces (50 U.S.C. § 462(a) Kerley had to have known that he had a duty to register, that is, had to have acted willfully; it was not enough to tell the jury that it had to find that Kerley had known he had not registered. But we further held that this was not a plain error in the circumstances and hence that Kerley could not upset his conviction unless he had stated his ground for objecting to the instructions-and we said he had not.


The main issue before us is whether the district court erred when it reversed the Office of Personnel Management's ("OPM") ruling that denied the plaintiff's claims made under a government employees insurance policy. For reasons assigned below, we reverse the district court's ruling.
Transitional Learning Community, Inc.("TLC"), is a nonprofit corporation in Galveston, Texas. TLC is a comprehensive outpatient rehabilitation facility devoted to post-acute brain injury rehabilitation. It provides individualized treatment programs that include therapy and treatment by clinical psychologists, physical therapists, and occupational therapists.
In May 1996, Senior United States District Court Judge Hugh Gibson ("Judge Gibson") suffered a stroke which resulted in paralysis affecting the left side of his body. Judge Gibson was admitted to the University of Texas Medical Branch Adult Rehabilitation Unit ("UT") where he received comprehensive inpatient care which included stroke rehabilitation. After he was released from the hospital, he continued to receive care from a UT outpatient facility.
In January 1997, Judge Gibson began receiving care from TLC on an outpatient basis. TLC is not affiliated with UT. His treatment included occupational therapy, physical therapy, speech/language pathology, and an abbreviated form of neuropsychological evaluation. Judge Gibson received these services from January 1997 to August 1997.
Judge Gibson was a federal employee covered by a health insurance policy issued by Government Employees Hospital Association ("GEHA"). GEHA is a health benefit plan regulated under the Federal Employee Health Benefits Act ("FEHBA"), 5 U.S.C. §§ 8901-14. Under FEHBA, the OPM is delegated the authority to promulgate regulations and to negotiate and contract with qualifying private insurance carriers to offer health benefit plans to federal employees. See 5 U.S.C. § 8902-03. Judge Gibson assigned his benefits under the GEHA insurance plan (the "Plan") to TLC. TLC submitted charges totaling $15,299 to GEHA for payment for the various therapies provided to Judge Gibson. GEHA denied the claim.
Consequently, TLC sought administrative review of GEHA's denial of TLC's claim. Under 5 C.F.R. § 890.105 (a) (1) (e), TLC may seek review of GEHA's denial to OPM. OPM denied TLC's request to grant coverage, and thus affirmed GEHA's decision. Pursuant to 5 C.F.R. § 890.107, TLC filed an action in federal district court to seek review of OPM's ruling.
At the district court, both parties filed motions for summary judgment. TLC argued that the speech, physical, and occupational therapies that it provided to Judge Gibson were covered under the Plan. OPM maintained that under the "general exclusions" provision, which we address below, the claims were not covered because TLC is a "noncovered facility." The district court reversed OPM's ruling, and granted TLC's motion for summary judgment. OPM now appeals the district court's judgment.
This court reviews a district court grant of summary judgment de novo. See Rivers v. Central and South West Corporation, 186 F.3d 681, 682 (5th Cir. 1999). Summary judgment is appropriate, when, viewing the evidence in the light most favorable to the nonmoving party, the record reflects that no genuine issue of any material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The purpose of the Plan is to provide health care benefits for federal employees. To achieve this end, health plans covered under FEHBA must conform to minimum standards determined by OPM and must contain a detailed statement of benefits offered and shall include such maximums, limitations, exclusions, and other definitions of benefits as the OPM considers necessary or desirable. See 5 U.S.C. § 8902(d); see also 5 C.F.R. § 890.201. Pursuant to this dictate, OPM provides employees with "such information . . . as may be necessary to enable the individual to exercise an informed choice among the types" of plans offered under FEHBA. Id. at § 8907(a). Thus, employees are issued a document explaining the services or benefits covered under the plans, limitations, exclusions, procedures of obtaining benefits, and the principal provisions of the plans affecting the enrollee and any eligible family members. Id.
The Plan in the instant case is divided into five main sections entitled: (1) "How this Plan Works"; (2) "Benefits";(3) "Other Information"; (4) "How this Plan Changes"; and (5) "Summary of Benefits." The parties' dispute essentially revolves around two of these sections, "How this Plan Works," and "Benefits." In pertinent part, the "How this Plan Works" section defines a "covered facility" and a "covered provider." "Covered facilities" are (1) freestanding ambulatory facilities, (2) Hospice centers, and (3) Hospitals.1 "Covered providers" include, inter alia, licensed physicians, qualified psychologists, speech, physical and occupational therapists. This subsection expressly provides that the term "doctor" includes these providers when the services are performed within the scope of the license or certification.
The "How This Plan Works" section also includes a subsection entitled "General Exclusions." This subsection provides a list of exclusions. In pertinent part, this subsection states that " [b]enefits will not be paid for services and supplies when" "furnished or billed by a non covered facility, . . . ." (emphasis added). Furthermore, under the "General Exclusions" subsection, the Plan states that " [t]hese exclusions apply to more than one or to all benefit categories. Exclusions that are primarily identified with a single benefit category are listed along with that benefit category, but may apply to other categories." (emphasis added). As such, the Plan advises that enrollees, in addition to reviewing the "General Exclusions," review the specific benefit sections in order to be aware of all of the exclusions.
The Plan lists eight categories of benefits under the "Benefits" section. They include: (1) "Inpatient Hospital Benefits"; (2) "Surgical Benefits"; (3) "Maternity Benefits"; (4) "Mental Conditions/Substance Abuse Benefits; (5) "Other Medical Benefits"; (6) "Additional Benefits"; (7) "Prescription Drugs Benefits"; and (8) "Dental Benefits." Pertinent to this case are the "Inpatient Hospital Benefits" and the "Other Medical Benefits" categories which we address below.
At the outset, we note that the parties dispute whether we should defer to OPM's interpretation of the Plan. Thus, the issue is whether we should treat OPM's interpretation of the Plan as if it were an agency regulation and thus accord its construction of the Plan deference under Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984) (holding that courts should defer to reasonable agency interpretation of statutes), or whether we should review the Plan under traditional canons of contract interpretation, and thus review the Plan de novo.
Chevron, however, does not speak to the appropriate level of review courts are to give to an agency's interpretation of a contract. OPM argues that we should defer to its decision because the Plan is akin to a regulatory scheme. Furthermore, OPM contends that even if the court were to view the Plan as a traditional contract, deference is appropriate where the interpretation of the contract is "enhanced by the agency's expert understanding of the industry." Coca Cola v. Atchison, Topeka, & Santa Fe Ry. Co, 606 F.2d 213, 222 (5th Cir. 1979). TLC, however, argues that the case at hand involves an interpretation of a contract, which is traditionally a question of law we review de novo. Furthermore, TLC points the court to an OPM letter denying coverage which indicates that OPM's decision was based on its interpretation of the Plan. Thus, TLC contends that OPM's actions were more akin to a contractual party than a regulatory agency. Although Chevron leaves open the question whether an agency's interpretation of a contract is entitled to deference, nonetheless, we need not resolve this issue today because even under de novo review, we agree with OPM's interpretation of the Plan.
Because the Plan is administered by a federal agency, the federal common law pertaining to the construction of contracts is applicable. Todd v. AIG Life Insur. Co, 47 F.3d 1448, 1451 (5th Cir. 1995) (applying federal common law to interpret insurance plan administered under ERISA). Although we may "draw guidance from analogous state law" in ascertaining the applicable federal common law, see Brandon v. Travelers Ins. Co., 118 F.3d 1321, 1325 (5th Cir. 1991) (internal quotation omitted), " [w]e must nevertheless bear in mind that, in doing so, we may use [it] . . . only to the extent that [it] is not inconsistent with congressional policy concerns." See Todd, 47 F.3d at 1451. In construing provisions of an insurance plan, we interpret the contract language "in an ordinary and popular sense as would a person of average intelligence and experience," such that the language is given its generally accepted meaning if there is one. Todd, 47 F.3d at 1451 n. 1 (5th Cir. 1995) (internal quotation omitted); Jones v. Georgia Pacific Corp., 90 F.3d 114,116 (5th Cir. 1996) (internal quotation omitted). Furthermore, a contract should be interpreted as to give meaning to all of its terms -- presuming that every provision was intended to accomplish some purpose, and that none are deemed superfluous. See Burgin v. Office of Personnel and Management, 120 F.3d 494, 498 (4th Cir. 1997). Only if the terms remain ambiguous after applying ordinary principles of contract interpretation are we compelled to apply the rule of contra proferentem and construe the terms strictly in favor of the insured. See Todd, 47 F.3d at 1451-52.
"These exclusions apply to more than one or to all benefit categories. Exclusions that are primarily identified with a single benefit category are listed along with that benefit category, but may apply to other categories. Therefore, please refer to that specific benefit section as well to assure that you are aware of all benefit categories."
The plain language of this clause informs the Plan participant that the benefits categories are subject to the General Exclusions. Furthermore, exclusions specifically listed in a benefit category may be applicable to other categories. As stated above, one of the General Exclusions listed is for services "furnished or billed by a noncovered facility." TLC does not argue that this language is ambiguous, nor do we find ambiguity. Therefore, under a plain language interpretation, the bills TLC submitted for the services rendered to Judge Gibson are not covered because TLC is a "noncovered facility."
Nonetheless, TLC contends that the "noncovered facility" general exclusion is not applicable because it submitted its claims under the "Other Medical Benefits" category as a "covered provider." It further claims that the "noncovered facility" general exclusion only applies to those benefits that the Plan specifies must be rendered in a hospital. TLC further contends that OPM's restrictive interpretation is inconsistent with other provisions of the Plan that provide procedures for "covered providers" to directly file their claims with GEHA. TLC also asserts that under OPM's restrictive interpretation, "covered providers" must render their services within the walls of "covered facilities" in order to be covered under the Plan. Thus, TLC argues that provisions under the Plan that cover "home and office visits by providers" and bills for prescription medication issued by pharmacies would be rendered superfluous because these services are not rendered in covered facilities. We do not agree with TLC's interpretation.
First, TLC's argument is flawed because TLC does not meet the Plan's definition of a "covered provider." As stated above, the term "covered provider" as defined under the Plan refers to individual health care providers such as doctors, dentists, nurse practitioners, occupational, physical and speech therapists. The definitions section for "covered providers" does not include "institutional providers" or facilities. Thus, TLC as a facility does not meet the Plan's "covered provider" definition. Furthermore, there is no language in the Plan that states that the "noncovered facility" general exclusion only applies to services that are provided or rendered in a hospital.
Finally, TLC argues that the "Prescription Drug Benefits" category, which covers services rendered by pharmacists, conflicts with the "noncovered facility" general exclusion because these services are not rendered in "covered facilities" and pharmacists are not listed as "covered providers." Nonetheless, "when two provisions of a contract conflict, the specific trumps the general," see Millgard Corp v. McKee/Mays, 49 F.3d 1070, 1073 (5th Cir. 1995). Thus, under this well established canon of contract interpretation, the "Prescription Drug Benefits" category would trump the "noncovered facility" general exclusion even though pharmacies do not meet the definition of a "covered facility." However, we find that this canon of contract interpretation is of no avail to TLC because there is no provision in the Plan that provides coverage for "occupational, speech, and physical therapy" when furnished or billed by a "noncovered facility." Therefore, the district court erred when it overruled OPM's ruling and granted summary judgment to TLC.
We REVERSE the district court's grant of summary judgment. We REMAND the case for further proceedings consistent with this opinion.
The Plan defines a freestanding ambulatory facility, hospice, and hospital. Because TLC concedes that it is not a "covered facility," we need not discuss the Plan's definitions of these facilities.
Furthermore, The Administrative Procedure Act ("APA") authorizes courts to reverse an agency's action if the agency acted arbitrarily or capriciously in adopting its interpretation by failing to give a reasonable explanation for how it reached its decision. See 5 U.S.C. §706(2) (A) (1994). "Arbitrary and capricious" review under the APA differs from Chevron step-two review, because it focuses on the reasonableness of the agency's decision-making processes rather than on the reasonableness of its interpretation.
Because the General Exclusions provision states that " [t]hese exclusions apply to more than one or to all benefit categories" the Plan contemplates that some of the general exclusions listed, by definition, are not applicable in certain instances. For example, the "noncovered facility" general exclusion is not applicable to services furnished or billed by "covered providers." Likewise, the general exclusion for services furnished or billed by "immediate relatives and household members" is not applicable to services furnished or billed by "covered facilities."


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Cameron Bailey is a writer, broadcaster and film programmer in Toronto. He reviews film for Toronto's NOW Magazine, CBC Radio One and the CTV Network's Canada AM. He is the past president of the Toronto Film Critics Association, and presented international cinema nightly on Showcase Television's The Showcase Revue (1998-2002). He also produced and hosted the interview show Filmmaker on the Independent Film Channel Canada.
Bailey has contributed articles on subjects including cinema, Black culture and new technology to Take One, The Village Voice, Screen, CineAction! and Borderlines, as well as to the MIT Press book Immersed in Technology and the Banff Centre anthology Territories of Difference.
Born in London, England and raised in Barbados and Toronto, he graduated from the University of Western Ontario with an Honours Degree in English literature. He pursued graduate study in Film at York University.
For eight years Bailey selected films for the Toronto International Film Festival (1990-97). He is the founder and former programmer of the Festival's Planet Africa section, and past head of its Perspective Canada series.
He has also curated film series at the Cinematheque Ontario, the National Gallery of Canada, the National Film Board of Canada's John Spotton Cinema, and Australia's Sydney International Film Festival. He has served on awards juries at film festivals in Canada, South Korea, Greece, Burkina Faso and Zanzibar.
Bailey serves on the Advisory Board of Toronto's Institute for Contemporary Culture, an initiative of the Royal Ontario Museum. He is also a former board member of the Ontario Film Development Corporation, and Toronto's Images Festival. He is a founder of Canada's Black Film and Video Network.
In 1997 Bailey completed his first screenplay, The Planet of Junior Brown, co-written with director Clement Virgo. The film was named Best Picture at the 1998 Urbanworld Film Festival in New York, and was nominated for a Best Screenplay Gemini Award. Hotel Saudade premieres at the 2004 Toronto International Film Festival.
by Cameron Bailey. TIFF - Toronto International Film Festival, Aug. 28, 2009.
by Cameron Bailey. Now, Apr. 11, 2002, v. 21, no. 32.
by Cameron Bailey. Now, Oct. 25, 2001, v. 21, no. 8.
by Cameron Bailey. Now, Apr. 13, 2000, v. 19, no. 33.
by Cameron Bailey. Lux: A Decade of Artists' Film and Video, 2000. Toronto: YYZ Books/Pleasure Dome, 2000.
by Cameron Bailey. Lux A Decade of Artists' Film and Video, 2000. Toronto: YYZ Books/Pleasure Dome, 2000.
by Cameron Bailey. NOW, Sept. 7 Fall, 2000, v. 20, no. 1.
by Cameron Bailey. Now, Apr. 22, 1999, v. 18, no. 34.
by Cameron Bailey. Now, Apr. 1, 1999, v. 18, no. 31.
by Cameron Bailey. NOW, Oct. 21, 1999, v. 19, no. 8.
by Cameron Bailey. NOW, June 10, 1999, v. 18, no. 41.
by Cameron Bailey. Fuse, July 1998, v. 21, no. 3.
by Cameron Bailey. Now, Oct. 8, 1998, v. 18, no. 6.
by Cameron Bailey. Now, July 17, 1997, v. 16, no. 46.
by Cameron Bailey. Now, Oct. 24, 1996, v. 16, no. 8.
by Cameron Bailey. Now, Apr. 6, 1995, v. 14, no. 32.
by Cameron Bailey. Now, Nov. 16, 1995, v. 15, no. 11.
by Cameron Bailey. Now, Dec. 28, 1995, v. 15, no. 17.
by Cameron Bailey. Now, June 16, 1994, v. 13, no. 42.
by Cameron Bailey. Now, Apr. 21, 1994, v. 13, no. 34.
by Cameron Bailey. Now, Jan. 5, 1994, v. 13, no. 18.
by Cameron Bailey. Now, Feb. 23, 1994, v. 13, no. 26.
by Cameron Bailey. Now, Jan. 14, 1993, v. 12, no. 20.
by Cameron Bailey. Now, May 20, 1993, v. 12, no. 38.
by Cameron Bailey. NOW, Apr. 22, 1993, v. 12, no. 34.
by Cameron Bailey. Now, July 2, 1992, v. 11, no. 44.
by Cameron Bailey. Now, Dec. 24, 1992, v. 12, no. 17.
by Cameron Bailey. Now, Apr. 23, 1992, v. 11, no. 34.
by Cameron Bailey. Now, Jan. 2, 1992, v. 11, no. 18.
by Cameron Bailey. NOW, Apr. 30, 1992, v. 11, no. 35.
by Cameron Bailey. NOW, June 20, 1991, v. 10, no. 41.
by Cameron Bailey. Now, June 7, 1990, v. 9, no. 39.
by Cameron Bailey. Now, May 24, 1990, v. 9, no. 37.
by Cameron Bailey. NOW, Jan. 3, 1990, v. 10, no. 17.
by Cameron Bailey. Now, Apr. 13, 1989, v. 8, no. 31.
by Cameron Bailey. Now, Nov. 9, 1989, v. 9, no. 10.
by John Harkness and Cameron Bailey. NOW, June 1, 1989, v. 8, no. 38.
by Cameron Bailey. Now, Oct. 20, 1988, v. 8, no. 7.
by Cameron Bailey and Geoffrey Shea. Cinema Canada, 1987, no. 147.

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