Rehearing Denied June 23, 1969.
See 395 U.S. 987, 89 S.Ct. 2125.
Joseph J. Connolly, Washington, D.C., for petitioner, pro hac vice, by special leave of Court.
G. Bernhard Fedde, Portland, Or., for respondent.
This case involves the type of hearing to which an alien crewman is entitled on his claim that he would suffer persecution upon deportation to his native land. The Court of Appeals, 9 Cir., 393 F.2d 539, sustained the respondent crewman's contention that he must be heard by a special inquiry officer1 in a proceeding conducted under § 242(b) of the Immigration and Nationality Act.2 Petitioner, the Immigration and Naturalization Service, argues that respondent's claim was properly heard and determined by a district director.3 We brought the case here, 393 U.S. 912, 89 S.Ct. 235, 21 L.Ed.2d 197 (1968), to resolve the conflict on this score between the decision below and that of the Court of Appeals for the Second Circuit in United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (1967).
'the period of time (not exceeding twenty-nine days) during which the vessel or aircraft on which he arrived remains in port, if the immigration officer is satisfied that the crewman intends to depart on the vessel or aircraft on which he arrived.' Ibid.
Thus, although respondent was admittedly deportable under the terms of § 252(b), he was not immediately returned to his vessel. On January 7, he was offered the opportunity to present evidence to the District Director in support of his claim of persecution.
Respondent presented no evidence to the District Director. Rather, he contended that he had not been given sufficient time to prepare for the hearing, and he also argued that he was entitled to have his claim heard by a special inquiry officer in accordance with the general provisions of § 242(b). The District Director ruled against respondent and, in the absence of any evidence of probable persecution, ordered him returned to the M/V Sumadija, which was then still in port.
Respondent immediately sought relief in the United States District Court for the District of Oregon,6 which, without opinion, temporarily stayed his deportation and referred the matter back to the District Director for a hearing on the merits of respondent's claim. On January 25, 1965, after a hearing at which respondent was represented by counsel and presented evidence, the District Director held that respondent 'has (not) shown that he would be physically persecuted if he were to return to Yugoslavia.' Appendix 22.
On respondent's supplemental pleadings, the District Court held that the District Director's findings were supported by the record. The court rejected respondent's claim that he was entitled to a § 242(b) hearing before a special inquiry officer, relying on the last sentence of § 252(b), which provides: 'Nothing in this section shall be construed to require the procedure prescribed in section 242 of this Act to cases falling within the provisions of this subsection.' Vucinic (and Stanisic) v. U.S. Immigration and Naturalization Service, 243 F.Supp. 113 (D.C.1965).
Respondent did not appeal the District Court's decision. Instead, in July 1965, he petitioned Congress for a private bill, pending action on which the Service stayed his deportation. Respondent's effort proved unsuccessful, and on June 21, 1966, the Service ordered him to appear for deportation to Yugoslavia.
The following day, respondent reasserted his claim of persecution before the Service, and requested that the matter be heard by a special inquiry officer pursuant to § 242. The Service, and subsequently the District Court, denied relief, both holding that this issue had previously been determined adversely to respondent.
The Court of Appeals for the Ninth Circuit reversed. Stanisic v. U.S. Immigration and Naturalization Service, 393 F.2d 539 (1968), holding that the matter was not res judicata because of a significant change of circumstances: the District Director's adverse determination in 1965, and the District Court's unappealed approval thereof, were based on the unstated premise that the M/V Sumadija was still in port;7 but now the ship had long since sal ed, and respondent still had not been deported. The court held that § 252(b) only authorized respondent's 'summary deportation aboard the vessel on which he arrived or, within a very limited time after that vessel's departure, aboard another vessel pursuant to arrangements made before * * * (his) vessel departed.' 393 F.2d, at 542—543. Since neither of these conditions was met, respondent could no longer be deported pursuant to the District Director's 1965 determination; he was entitled to a de novo hearing before a special inquiry officer under § 242(b) of the Act.
At the outset, it is important to recognize the distinction between a determination whether an alien is statutorily deportable something never contested by respondent—and a determination whether to grant political asylum to an otherwise properly deportable alien.
Section 242(b) provides a generally applicable procedure 'for determining the deportability of an alien * * *.' Section 252(b) provides a specific procedure for the deportation of alien crewmen holding D—1 landing permits. Neither of these sections is concerned with the granting of asylum.
No statute prescribes by what delegate of the Attorney General, or pursuant to what procedure, relief shall be granted under these provisions. By regulation, the decision to grant parole pursuant to § 212(d)(5) rests with a district director, 8 CFR §§ 212.5(a), 253.2; and by regulation, the decision to withhold deportation of most aliens pursuant to § 243(h) is presently made by a special inquiry officer.8 8 CFR §§ 242.8(a), 242.17(c).
The Service could provide that all persecution claims be heard by a district director, and we see no reason why the Service cannot validly provide that the persecution claim of an alien crewman whose D—1 landing permit has been revoked be heard by a district director, whether or not the ship has departed. It might be argued, however, that the Service has not done so; that 8 CFR § 253.1(e) was designed to govern the determination of persecution claims only when § 252(b) of the Act governed determinations of deportability; and that if departure of the vessel renders § 252(b) inapplicable (a suggestion we consider and reject in Part III, below), then 8 CFR § 253.1(e) likewise becomes inapplicable.
Section 253.1(e) applies, however, to '(a)ny alien crewman * * * whose conditional landing permit issued under § 252.1(d)(1) (of 8 CFR) * * * is revoked'—precisely respondent's situation—and makes no reference to the departure, vel non, of the vessel. Granting that this regulation and its successor provision are not free from ambiguity, we find it dispositive that the agency responsible for promulgating and administering the regulation has interpreted it to apply even when the vessel has departed. E.g., United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (1967); Glavic v. Beechie, 225 F.Supp. 24 (1963), aff'd 340 F.2d 91 (1964). '(T)he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.' Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945).
In sum, it is immaterial to the decision in this case whether § 252(b)'s exception to the § 242(b) procedure is, or is not, applicable to respondent. These two provisions govern only the revocation of temporary landing permits and the determination of deportability, and we reiterate that respondent does not contest the District Director's action on either of these scores. These sections do not state who should hear and determine a request for asylum. That is a matter governed by regulation, and under the applicable regulation the respondent received his due.
We do not rest on this ground alone, however. Both the court below and the Court of Appeals for the Second Circuit in United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (1967), assumed that a crewman's statutory entitlement to a s 242(b) hearing on his request for asylum was coextensive with his right to a § 242(b) hearing on his statutory deportability, and the case was argued here primarily on that basis. For the balance of the opinion we thus make, arguendo, the same assumption. We conclude, contrary to the court below, that an alien crewman may properly be deported pursuant to § 252(b) even after his ship has sailed.
Section 242(b) of the Immigration and Nationality Act provides a generally applicable administrative procedure pursuant to which a special inquiry officer determines whether an alien is deportable. See nn. 1 and 2, supra.
'(T)he temporary 'shore leave' admission of alien seamen who remain illegally constitutes one of the most important loopholes in our whole system of restriction and control of the entry of aliens into the United States. The efforts to apprehend these alien seamen for deportation are encumbered by many technicalities invoked in behalf of the alien seamen and create conditions incident to enforcement of the laws which have troubled the authorities for many years.' Id., at 550.
'Authority should be granted to immigration officers in a case where the alien crewman intends to depart on the same vessel on which he arrived, upon a satisfactory finding that an alien is not a bona fide crewman, to revoke the permission to land temporarily, to take the alien into custody, and to require the master of the vessel on which he arrived to detain him and remove him from the country.' Id., at 558.
Unlike § 242(b), § 252(b) does not prescribe the procedures governing the determination of the crewman's deportability, nor does it confine that determination to a special inquiry officer.
As the Court of Appeals noted, the § 252(b) procedure governs a narrow range of cases only. It is entirely inapplicable to persons other than alien crewmen. It does not apply to an alien crewman who enters the United States illegally without obtaining any landing permit at all, or who enters on a 'D—2' permit allowing him to depart on a different vessel. See n. 4, supra. The Service has held § 252(b) to be inapplicable even to a crewman issued a D—1 permit unless formal revocation—as distinguished from actual deportation—takes place before his vessel leaves American shores.11 Matter of M—-, 5 I. & N.Dec. 127 (1953); 8 CFR § 252.2; see Cheng Fan Kwok v. U.S. Immigration and Naturalization Service, 392 U.S. 206, 207, 88 S.Ct. 1970, 1971, 20 L.Ed.2d 1037 (1968).
Section 252(b) most plainly governs the situation in which a D—1 landing permit is revoked and the alien crewman is immediately returned to the vessel on which he arrived, which, by hypothesis, is still in a United States port. At the time of revocation, the crewman usually has not traveled far from the port,12 so the burden of transporting him back to the vessel is small; there is a readily identifiable vessel and place to return him to; and during his brief shore leave, which cannot exceed 29 days, the crewman is unlikely to have established significant personal or business relationships in the United States. In short, the crewman's deportation may be expedited, with minimum hardship and inconvenience to him, to the transportation company responsible for him,13 and to the Service.
These provisions contemplate that an alien crewman whose temporary landing permit is revoked pursuant to § 252(b) may be deported on a vessel other than the one on which he arrived. The other vessel should preferably be one owned by the transportation company which which brought him to the United States,15 but if this is not feasible, the Attorney General may order him deported by other means, at the company's expense.
The Court of Appeals recognized that an alien crewman might properly be deported on a vessel other than the one which brought him. It noted, however, that § 254(c) holds the owner of that vessel responsible for all of the expenses of his deportation and further provides that the vessel shall not be granted departure clearance until those expenses are paid or their payment is guaranteed.16 From this it concluded that 'the section contemplates that the alternative arrangement shall be made while the vessel upon which the crewman arrived is still in port * * *.' 393 F.2d, at 546. Since arrangements for respondent's deportation had not been made before the M/V Sumadija departed, the § 254(c), and hence the § 252(b), procedures were no longer applicable: with the ship's departure, respondent became entitled to a hearing pursuant to § 242(b).
Strong policies support the conclusion that a properly commenced § 252(b) proceeding does not automatically abort upon the departure of the crewman's vessel. If the crewman whose landing permit has been revoked pursuant to § 252(b) attacks the district director's action in a federal court, the court would usually stay his deportation pending at least a preliminary hearing. Even courts with dockets less crowded than those of most of our major port cities19 may not be able to hear the matter for several days or more, during which time the vessel may often have departed according to schedule. It requires little legal talent, moreover, to manufacture a colorable case for a temporary stay out of whole cloth, and to delay proceedings once in the federal courts. The Ninth Circuit's construction would, thus, encourage frivolous applications and intentional delays designed to assure that the crewman's vessel departed before the case was heard. Alternatively, it would so dispose federal judges not to grant stays that persons presenting meritorious applications might be deported without the opportunity to be heard.
We agree with the court below that § 252(b) is a provision of limited applicability. But we conclude that the court's construction would restrict its scope to a degree neither intended by Congress nor supported by the language of the Act, and that it would, as a practical matter, render § 252(b) useless for the very function it was designed to perform.
We hold that an alien crewman whose temporary landing permit is properly revoked pursuant to § 252(b) does not become entitled to a hearing before a special inquiry officer under § 242(b) merely because his deportation is not finally arranged or effected when his vessel leaves, and that under these circumstances the Attorney General may provide—as he did in 8 CFR § 253.1(e), now 8 CFR § 253.1(f) that the crewman's request for political asylum be heard by a district director of the Immigration and Naturalization Service.
Two procedures for the deportation of aliens are relevant in this case. The first is set forth in § 242(b) of the Immigration and Nationality Act, 66 Stat. 209, 8 U.S.C. § 1252(b), and is the procedure required in most instances when the Government seeks to deport an alien. Under § 242(b) a number of procedural safeguards are specified to insure that an alien is given the full benefit of a complete and fair hearing before the harsh consequence of deportation can be imposed on him.1 The second procedure involved in this case is set forth in § 252(b). It is applicable only under very special circumstances involving alien seamen who enter this country under conditional landing permits. Section 252(b) provides for a short, summary procedure.2 Unlike § 242(b), the first provision mentioned, this second provision does not require that the hearing officer be someone unconnected with the investigation and prosecution of the case. It does not require specific trial safeguards such as the rights to notice, counsel, and crossexamination of witnesses. Indeed, § 252(b) apparently does not require that the alien be given any hearing at all but would seem to authorize an immigration officer to order immediate arrest and summary deportation on the basis of any information coming to him in any way at any time. The question before the Court is therefore not the apparently insignificant question suggested by the Court's opinion—namely, whether this alien's case was properly determined by an official with one title, 'District Director,' rather than another title, 'special inquiry officer.' Instead, the question is the crucially significant one whether an alien seaman about to be forced to leave the country is entitled under the circumstances of this case to the benefit of safeguards that were carefully provided by Congress to insure greater fairness and reliability in deportation proceedings.
The regulations relied on by the Court in Part II of its opinion do not provide an independent basis for its holding. Among the relevant regulations, 8 CFR § 242.8(a) applies '(i)n any proceeding conducted under this part,' namely 'Part 242 Proceedings to Determine Deportability of Aliens in the United States: Apprehension, Custody, Hearing, and Appeal.' The regulation is thus designed to spell out further the details of proceedings required to be conducted under § 242 of the statute, and this regulation explicitly authorizes the special inquiry officer 'to order temporary withholding of deportation pursuant to section 243(h) of the Act (the political persecution provision).' In contrast, the regulations relied upon by the Court as authorizing a District Director to decide this issue, in particular former 8 CFR § 253.1(e), apply by their own terms only to the procedure for 'parole' of an alien under § 212(d) (5), a remedy distinct from the withholding of deportation under § 243(h), and by the Government's own admission these regulations are applicable only to 'requests for asylum made by crewmen against whom proceedings under Section 252(b) have been instituted.' Brief for Petitioner 37. Thus, the regulations serve only to spell out the procedures to be followed under both § 242(b) and § 252(b) and do not even purport to specify when one of the sections rather than the other is in fact applicable. The fact that the Immigration and Naturalization Service has applied the regulations differently does not change this meaning. As the Court concedes, the regulation is 'not free from ambiguity,' ante, at 72, and of course the ambiguity in the regulation is precisely the same as the ambiguity in the statutory provision from which the wording of the regulation was drawn. It seems clear that the way in which the Service has applied the regulation has been determined by its interpretation of the statute, an interpretation that is in no way binding on us. Both the statute and the regulation are ambiguous, and there is no doubt in my mind that this ambiguity should be resolved in favor of the alien who is seeking a full and fair hearing. With all due respect, I think the Court's involved argument based upon the regulations, which goes beyond anything suggested by the Government itself in this case, provides no basis whatsoever for avoiding the fundamental question of statutory interpretation as to which of the two procedures, § 242(b) or § 252(b), was required to be followed in this case.
'The section (252(b)) exception (to the general procedure requirements of § 242(b)) is very narrowly drawn. It does not apply to the deportation of crewmen who have 'jumped ship' and entered the United States illegally, with no permit at all. As noted above, it does not apply to crewmen issued landing permits authorizing them to depart on vessels other than those on which they arrived. It does not apply to crewmen who have overstayed the twenty-nine day leave period without revocation of their landing permits. It does not apply to crewmen who were to leave on the vessel on which they arrived if their vessels have departed before their landing permits are revoked. In all of these situations crewmen may be deported only in accordance with (§ 242(b)) procedures.' 393 F.2d 539 544.
As the legislative history of the Act, quoted in the opinion of the Court of Appeals, shows, the special truncated procedure of § 252(b) was intended to be used only when the need for speed was truly pressing—when the ship was about to leave port. But the seaman in this case was subjected to this truncated, summary procedure even though his ship had already gone and the need for haste in completing these important legal proceedings no longer existed. There is no reason to suspect that Congress wanted a seaman to be deprived under these circumstances of the vital procedural safeguards so carefully specified in § 242(b) of the Act.
A special inquiry officer is 'any immigration officer who the Attorney General deems specially qualified to conduct specified classes of proceedings * * *.' Immigration and Nationality Act, § 101(b)(4), 66 Stat. 171, 8 U.S.C. § 1101(b)(4). The special inquiry officer has no enforcement duties. He performs 'no functions other than the hearing and decision of issues in exclusion and deportation cases, and occasionally in other adjudicative proceedings.' 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.7b, at 5—49 (1967); see generally id., § 5.7.
A district director is the officer in charge of a district office of the Immigration and Naturalization Service. He performs a wide range of functions. See 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 1.9c (1967); 8 CFR § 103.1(f).
'D—1' and 'D—2' landing permits are permits issued pursuant to 8 CFR §§ 252.1(d)(1) and 252.1(d)(2), which implement §§ 252(a)(1) and 252(a)(2) of the Act.
26 Fed.Reg. 11797 (December 8, 1961). Effective March 22, 1967, the section was amended and redesignated § 253.1(f), 32 Fed.Reg. 4341—4342.
Because the District Director's determination was not pursuant to § 242(b), the District Court had jurisdiction to review his action. See Cheng Fan Kwok v. U.S. Immigration and Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968); Stanisic v. U.S. Immigration and Naturalization Service, 393 F.2d 539, 542 (1968); Vucinic (and Stanisic) v. U.S. Immigration and Naturalization Service, 243 F.Supp. 113, 115-117 (1965); 5 U.S.C. § 1009.
Actually, the ship sailed from the United States on or about January 16, 1965, or between the date on which the District Director revoked respondent's landing permit (January 6, 1965), and the date on which, after a hearing, he denied respondent's persecution claim (January 25, 1965). This fact was not in the record before the Court of Appeals.
This was not always so. Until 1962, the final determination was made by a regional commissioner of the Service. 8 CFR § 243.3(b)(2) (1958 rev.); see Foti v. U.S. Immigration and Naturalization Service, 375 U.S. 217, 230, n. 16, 84 S.Ct. 306, 314, 11 L.Ed.2d 281 (1963).
The only substantial difference is that the regulation, but not the statute, is limited to Commn ist-inspired persecution.
For this reason, we have no occasion to decide whether or not respondent was 'within the United States.' Compare United States ex rel. Szlajmer v. Esperdy, 188 F.Supp. 491 (1960), with United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (1967), and Glavic v. Beechie, 225 F.Supp. 24 (D.C.1963), aff'd, 340 F.2d 91 (5 Cir. 1964). It may further be noted that § 243(h), by its terms, 'authorizes' but does not require the consideration of persecution claims.
8 CFR § 252.2(d) provides that a 'crewman granted a conditional permit to land under section 252(a)(1) of the Act * * * is required to depart with his vessel from its port of arrival and from each other port in the United States to which it thereafter proceeds coastwise without touching at a foreign port or place; however, he may rejoin his vessel at another port in the United States before it touches at a foreign port or place if he has advance written permission from the master or agent to do so.' In the latter case the crewman may journey some distance from the port at which he arrived.
See infra, this page and at 76.
66 Stat. 221, 8 U.S.C. § 1284.
This is doubtless an accommodation made in the light of the transportation company's liability for the expenses of deportation.
'All expenses incurred in connection with such deportation, including expenses incurred in transferring an alien crewman from one place in the United States to another under such conditions and safeguards as the Attorney General shall impose, shall be paid by the owner or owners of the vessel or aircraft on which the alien arrived in the United States. The vessel or aircraft on which the alien arrived shall not be granted clearance until such expenses have been paid or their payment guaranteed to the satisfaction of the Attorney General. * * *' § 254(c).
Thus, if and when respondent is deported, the owners of the M/V Sumadija will be responsible for the related expenses incurred by the United States.
And, although we do not decide this question, § 254(c) would appear to allow the Attorney General to require security for the payment of anticipated expenses of deporting an alien crewman, even though no final arrangements have been made before the vessel that brought i m departs.
See generally 1968 Director of the Administrative Office of the United States Courts Ann.Rep., Tables C, D, and X (1968).
See supra, at 68; Appendix 18—22 passim.
Respondent contends that his 1965 proceeding was infected with various constitutional errors, including the District Director's alleged bias and his combination of prosecutorial, investigative, and adjudicatory functions. Because that proceeding is not before us, and because we remand for a new hearing, we have no occasion to consider these arguments, except to note that neither § 252(b) of the Immigration and Nationality Act nor 8 CFR § 253.1(f), under which respondent will be heard on remand, is unconstitutional on its face. Likewise, it is premature to consider whether, and under what circumstances, an order of deportation might contravene the Protocol and Convention Relating to the Status of Refugees, to which the United States acceded on November 1, 1968. See Dept State Bull., Vol. LIX, No. 1535, p. 538.


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National Science Foundation under grant: IIS-9811229, IIS-0208621.
Unsupervised clustering, data mining, classification, hierarchical taxomonies, Web agents.
Streaming Data Reduction Using Low-Memory Factored Representations, by David Littau and Daniel Boley: Journal of Information Sciences, Special issue on Mining Streaming Data (to appear), 2004.
A comparative analysis on the bisecting K-means and the PDDP clustering algorithms, by Sergio M. Savaresi and Daniel Boley: Intelligent Data Analysis (to appear), 2004.
A Parallel Formulation of the Spatial Auto-Regression Model for Mining Large Geo-Spatial Datasets, by Baris M. Kazar, Shashi Shekhar, David J. Lilja, and Daniel Boley, MSI report UMSI 2004/33; SIAM 04 Datamining Conf. International Workshop on High Performance and Distributed Mining, 2004.
Online Motion Classification using Support Vector Machine, by D. Cao, O. Masoud, D. Boley, N. Papanikolopoulos: IEEE 2004 International Conference on Robotics and Automation, 2004.
Training Support Vector Machine using Adaptive Clustering, by D. Boley and D Cao: 2004 SIAM International Conference on Data Mining, April 22 - April 24, Lake Buena Vista, FL, USA, 2004.
Using Low-Memory Representations to Cluster Very Large Data Sets, by D. Littau and D. Boley: SDM'03 Third SIAM Conference on Data Mining, May 2003.
Transcriptional response of Pasteurella multocida to defined iron sources, by M.L. Paustian, B.J. May, D. Cao, D. Boley, V. Kapur: J. Bacteriol. 184(23):6714-6720, Dec 2002.
Incremental PDDP for the Clustering of Large Data Sets, by D. Littau and D. L. Boley: TR-01-016, 2001.
On the performance of bisecting K-means and PDDP, by D. Boley and S. Savaresi: SIAM Data Mining 2001.
A Scalable Hierarchical Algorithm for Unsupervised Clustering by D. Boley, in Data Mining for Scientific and Engineering Applications (R. Grossman, C. Kamath, P. Kegelmeyer, V. Kumar, R. Namburu, eds), p 383-400, Kluwer, 2001.
Choosing the cluster to split in bisecting divisive clustering algorithms, by S. Savaresi and D. Boley and S. Bittanti and G. Gazzaniga: TR-00-053, 2000.
Error Analysis of Automatic Speech Recognition Using Principal Direction Divisive Partitioning, by D. Mckoskey and D. Boley: in European Conference on Machine Learning (R. Lopez de Mantanaras and E. Plaza, ed.), p.263-270, Lecture Notes in Artificial Intelligence, 1810, Springer Verlag, 2000.
Principal Direction Partitioning in Data Mining, by D. Boley, slides of talk given at Stanford, February, 2000.
Unsupervised Clustering: A Fast Scalable Method for Large Datasets, by D. Boley and V. Borst, U of Mn CSE Report TR-99-029. An informal introduction to the methods.
D.Unsupervised Updating of a Classification Tree in a Dynamic Environment, by D. Boley and V. Borst, in Autonomous Agents'99 Conference, 1999, p.390-391.
Partitioning-Based Clustering for Web Document Categorization, D. Boley, M. Gini, R. Gross, S. Han, K. Hastings, G. Karypis, V. Kumar, B. Mobasher, J. Moore, Decision Support Systems, 1999, to appear.
Document Categorization and Query Generation on the World Wide Web Using WebACE, D. Boley, M. Gini, R. Gross, E.-H. (Sam) Han, K. Hastings, G. Karypis, V. Kumar, B. Mobasher, J. Moore, AI Review, 13:365-391, 1999.
Principal Direction Divisive Partitioning, D. L. Boley, Data Mining and Knowledge Discovery 2(4):325-344, 1998.
Raw text document data used in the last three reports above.
Selected Reprints by Boley annotated with author's own unsupervised clustering method.
This project is devoted to the research and development of a hierarchical divisive clustering algorithm. The basic underlying activity is the basic research needed to fully develop the divisive partitioning method and the applied research needed to demonstrate its use on specific applications and to make it easy for humans to use. The conceptual framework for the basic divisive partitioning method has been developed, and an efficient prototype implementation has been installed locally, on which all experimental results have been based. The research issues to be addressed in this project include completion of the theoretical foundations of the algorithm, experiments on larger datasets to measure the scalability of the methods, experiments on a datasets from a variety of sources as a way to gain understanding about the theory behind the method, extensions to the algorithm capabilities, extensions to other applications beyond text document clustering, and validation of algorithm results. Technology transfer forms an additional part of this project, and will be addressed by applying the methods developed as part of the project to other application datasets (e.g. genome, toxicology, medical literature datasets), as well as extending it to other paradigms such as hierarchical taxonomies, document rating aids and collaborative filtering. By incorporating it into a Web agent, the methods will be made available to a wide audience. All application datasets have either been collected by colleagues and will be shared as part of ongoing projects, or are available over the Web.
The project goals are to develop the Principal Direction Divisive Partitioning (PDDP) Algorithm and demonstrate its effectiveness in a variety of applications.
(3) develop user interfaces to allow easy access to the functionality of the algorithm, allowing users to apply it to a variety of datasets in a straightforward way.
(e) Develop a user interface based on a Web agent.
(i) We have developed the conceptual framework necessary to incorporate essential new features of the methods. The features are necessary to make the method a practical and useful method in the domain of Web exploration and include an automatic stopping test and a dynamic incremental updating feature [Ref. 1].
(ii) We have completed the design of a client-side Web agent incorporating this algorithm as a tool to automatically [i.e. without user participation] organize a large collection of Web pages visited by a user using a normal Web browser. The feasibility and practicality of the design has been demonstrated [Ref. 3], but robustness issues still need to be addressed.
Discoveries at and across the frontier of science and engineering.
We have developed a new paradigm for partitioning large datasets and the conceptual framework to incorporate new features. This framework has been made possible only by a synergy of a variety of different scientific disciplines, with the result that methods have new capabilities not possible by using methods from only one scientific discipline.
Connections between discoveries and their use in service to society.
The methods begin investigated here are of immediate and practical value to the analysis of large data sets from different applications: text documents, texture images, chemical toxicity parameters, etc. The automated analysis of large bodies of data from a variety of sources is a critical issue in the age of digital technology, and automated and unsupervised analysis tools are essential in this effort.
A diverse, globally-oriented workforce of scientists and engineers.
Even at the early stages of this project, we have promoted the education and incorporation of women in the workforce of scientists and engineers. The interdisciplinary nature of the project also encourages exposure and learning of concepts across many scientific disciplines, leading to a more well-rounded preparation to be members of the scientific workforce.

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The item Anthony Robbin's personal power II : the driving force, [Anthony Robbins], (sound recording) represents a specific, individual, material embodiment of a distinct intellectual or artistic creation found in District of Columbia Public Library System.
V. 1. Unleash your personal power!
v. 6. Moving beyond procrastination to unlimited power!
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text:
A relatively small percentage of Minnesotans, however, have private health coverage. The majority receive their health coverage through an employer. The vast majority of those employers health plans qualify as employee welfare benefit plans and are therefore governed by the provisions of the Employee Retirement Income Security Act (ERISA). The Minnesota appellate courts have held in the past that all employer provided health plans that qualify as ERISA plans are governed by federal law due to the pre-exemption of state law by ERISA.7 At first blush then, the new insurance subrogation law would appear to be a very narrow victory, applicable only to those few persons who have truly private health coverage. Health coverage providers will almost certainly make this argument. Lawyers representing the injured accident victims should be careful not to succumb without further investigation.
ERISA comprehensively regulates employee pension and welfare plans. Its provisions pre-empt related areas of state law in an attempt by Congress to protect the rights of the working American. Ironically, pre-emption frequently works a hardship on the very working Americans it was designed to protect. In the case of subrogation clauses contained in employee welfare benefit plans, there is no question that Minnesota state law as codified at Sections 62A.095 and 62A.096 will better protect the individual rights of the injured persons than will the federal law of ERISA. The lawyer representing the accident victim must engage in the necessary pre-emption analysis keeping this fact firmly in mind. Examination of the federal case law completely supports the conclusion that at least with respect to insured ERISA plans, the new Minnesota Statutes Section 62A.095 will not be pre-empted by federal law, and will effectively protect the undercompensated accident victim overreaching subrogation clauses under the analysis set forth below.
ERISA pre-emption analysis is a three step process set out in three interrelated statutory provisions. Title 29 U.S.C. 1144(a), the general pre-emption clause, declares that ERISA pre-empts [a]ny and all state laws insofar as they may now or hereafter relate to any employee benefit plan covered by ERISA. The United States Supreme Court has affirmed that the pre-emptive scope of ERISA is extremely broad.8 The first step in the pre-emption analysis turns on the question of whether the Minnesota law of subrogation relates to employee benefit plans within the meaning of the general pre-emption clause. Such a relationship exists when the state law in question has a connection with or reference to an employee benefit plan. 9 The phrase is not limited to those state laws which deal specifically with ERISA plans or with subject matter covered by ERISA plans.10 Thus any provisions of state law which conflicts with a proper provision of an ERISA plan is pre-empted.11 State subrogation laws, both common law and statutory, have consistently been held to fall within the broad scope of ERISA s general pre-emption clause.12 Minnesota is no exception.
Pre-emption analysis in the insurance context does not, however, end with the general pre-emption clause. Title 29 U.S.C. 1144(b)(2)(A), known as the savings clause, returns to the states power to enforce those state laws that regulate insurance, except as provided in [the deemer clause]. It is with respect to the savings clause that Minnesota s insurance subrogation statute impacts and changes current law.
The Minnesota appellate courts could easily have found Holliday to be controlling with respect to the Minnesota common law of subrogation but chose not to. Instead, in Blue Cross/Blue Shield v. Flam,18 the Minnesota Court of Appeals adopted the rationale of the 1989 Eighth Circuit decision Baxter v. Lynn,19 which, prior to Holliday, had found that the law of subrogation, while generally applicable to insurance contracts, is not specifically directed toward the insurance industry. 20 While acknowledging in a brief citation that Holliday existed, the Minnesota Court of Appeals instead chose to distinguish Baxter from Holliday by virtue of the fact that Minnesota s common law on subrogation is applicable to many factual circumstances unrelated to the insurance industry, and therefore falls outside the scope of the savings clause. 21 Accordingly, the Flam court held that ERISA pre-empted Minnesota s common law of subrogation, and that the subrogation language in the contract was controlling.
The newly enacted Section 62A.095 totally eliminates the Flam court s distinction between Baxter and Holliday. The Minnesota law of subrogation is not longer a creature of the common law. Courts will now be dealing with a statute specifically directed toward the insurance industry in the same manner that the Pennsylvania subrogation statute was directed toward the insurance industry in Holliday. Thus, effective January 1, 1996, Minnesota s codified healthcare subrogation law falls squarely within ERISA s insurance savings clause, and is no longer pre-empted except as provided by the deemer clause. Baxter and Flam are no longer controlling.
The final portion of the ERISA pre-emption analysis is codified at 29 U.S.C. 1144(b)(2)(B). Under the deemer clause, an employee benefit plan governed by ERISA shall not be deemed an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws purporting to regulate insurance companies or insurance contracts. The Holliday court interpreted the deemer clause to exempt self-funded ERISA plans from state laws that regulate insurance within the meaning of the savings clause. 22 On the other hand, insured employee benefit plans are subject to indirect state insurance regulation. An insurance company that insures a plan remains an insurer for purposes of state laws purporting to regulate insurance. The insurance company is not relieved from state insurance regulations. The ERISA plan is consequently bound by state insurance regulations insofar as they apply to the plan s insurer. 23 The application of the deemer clause to employee welfare benefit plans containing subrogation clauses in conflict with Minnesota Statutes Section 62A.095. Those plans which are insured, however, will not be pre-empted, and will be governed by the terms of Section 62A.095.
Section 62A.095 represents a legislative victory to Minnesota accident victims. It protects their right to receive full compensation prior to reimbursing their health plans for medical benefits paid on their behalf. Using the proper analysis, this victory extends beyond the increasingly rare private health insurance policy, and should also regulate those ERISA health plans that are insured rather than self-funded. As of January 1, 1996 all attorneys representing injured accident victims should take care to probe further into the details of their clients employer-provided healthcare plans to determine the source of their funding. For those plans which are insured plans, the looming spector of the term ERISA has lost many of its teeth.
1. 330 N.W.2d 699 (1983).
3. See, Hershey v. Physicians Health Plan, 498 N.W.2d 519, 520 (Minn. App. 1993).
6. Minn. Stat. 62A.095, subd. 2.
7 Blue Cross/Blue Shield v. Flam, 509 N.W.2d 393 (Minn. App. 1993) review denied (February 24, 1994).
8. See, e.g., Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985).
10. Shaw v. Delta Airlines, Inc., 463 U.S. 85, 97 (1983).
11. Baxter v. Lynn 886 F.2d 182, 185 (8th Cir. 1989).
12. FMC Corp. v. Holliday, 498 U.S. 52 (1990); Baxter v. Lynn, 886 F.2d 182 (8th Cir. 1989); Hunt v. Sherman, 345 N.W.2d 750 (Minn. 1984).
13. 498 U.S. 52 (1990).
18. 509 N.W.2d 393 (Minn. App. 1993), review den. (February 24, 1994).
19. 886 F.2d 182 (8th Cir. 1989).
20. Baxter , 886 F.2d at 1986.
21. Flam, 509 N.W.2d at 397.
22. 498 U.S. at 61.

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Enacted in 1946 the Federal Tort Claims Act (FTCA) (60 Stat. 842) removed the inherent IMMUNITY of the federal government from most TORT actions brought against it and established the conditions for the commencement of such suits.
In passing the FTCA, Congress allowed the federal government to be sued. Congress also made specific exceptions to the act, and the U.S. Supreme Court has interpreted one provision broadly, both actions resulting in the dismissal of many plaintiffs' lawsuits.
In consenting to be sued, the federal government waived the SOVEREIGN IMMUNITY it had enjoyed in the past. Justice OLIVER WENDELL HOLMES JR., in Kawananakoa v. Polyblank, 205 U.S. 349, 27 S. Ct. 526, 51 L. Ed. 834 (1907), explained that a "sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." As early as the 1821 case of Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257, the Supreme Court recognized the sovereign immunity of the United States.
Nevertheless, during the nineteenth century, Congress consented to let the federal government be sued in several causes of action. Congress established the Court of Claims in 1855 (28 U.S.C.A. § 171) to entertain contract actions against the United States. The passage of the TUCKER ACT (28 U.S.C.A. § 1346[a] , 1491) in 1887 broadened that court's jurisdiction to include designated nontort actions, including EMINENT DOMAIN cases. But, until 1946, there was no readily accessible remedy for tort actions brought by citizens of the United States. The routine recourse was for members of Congress to introduce private bills for constituents who had been injured by government NEGLIGENCE. Congress eventually recognized that the private bill method was not an effective way to deal with the problem and passed the FTCA.
Now a person who alleges that an employee of the federal government has caused injury must commence a lawsuit pursuant to the FTCA. Once filed, the FTCA lawsuit becomes the plaintiff's exclusive remedy, regardless of any statute that expressly or impliedly permits actions against a designated agency. A federal judge hears the case without a jury.
Congress did not categorically waive sovereign immunity in the FTCA. The act contains 13 exceptions, which release the federal government from any liability for, among other things, enforcing unconstitutional statutes, losing letters in the post office, actions of the military in time of war, damages caused by the fiscal operations of the TREASURY DEPARTMENT or regulation of the monetary system, collecting custom duties, claims arising in a foreign country, and most intentional torts (28 U.S.C.A. § 2680).
The most important and troublesome exception has been the FTCA discretionary function exception. Under this provision, the waiver of immunity does not apply to any claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused" (28 U.S.C. § 2680[a]). In Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), the U.S. Supreme Court broadly interpreted the discretionary function exception to include all situations involving the formulation or execution of plans that were drawn at a high level of government and that entailed exercise of judgment. In Dalehite, federal government workers in Texas were negligent in packing and shipping explosive material, and their negligence resulted in the death of 536 people. The Court ruled that the workers were following specifications prepared by superiors in Washington, D.C., who were exercising their discretion. Therefore, the discretionary function exception applied and the government was immune from suit. The Court distinguished between decisions made at the planning and policy stage and those conducted at the lower, or "operational," levels that implement the policy decisions, even if some judgment or discretion is exercised in carrying out such decisions.
The Dalehite decision has limited the effectiveness of the FTCA for persons injured by the government. Some commentators have criticized the Court for allowing the discretionary function exception to swallow the FTCA. Many cases center on whether the alleged tortious conduct involved the exercise of discretion or was merely ministerial (carrying out a designated act), although virtually any act by a government employee is either directly or indirectly the outcome of an exercise of discretion.
The Supreme Court has placed other limitations on the scope of the FTCA. In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Court interpreted the FTCA to bar claims by members of the armed forces and their families for injuries arising out of or in the course of activity related to military service. In Laird v. Nelms, 406 U.S. 797, 92 S. Ct. 1899, 32L. Ed. 2d 499 (1972), the Court held that the requirement of a "wrongful" act means the United States is not liable under any state rule imposing STRICT LIABILITY.
The FTCA's exception for intentional torts, such as assault, BATTERY, FALSE IMPRISONMENT, false arrest, and LIBEL, was modified in 1974, in response to the Supreme Court's ruling in Bivensv. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). In Bivens the Court held that federal law enforcement officers could be sued personally for violation of a person's constitutional rights. The FTCA was subsequently amended to make actionable conduct "of investigative or law enforcement officers of the United States Government" involving assault, battery, false imprisonment, false arrest, ABUSE OF PROCESS, or MALICIOUS PROSECUTION. This inclusion does not repeal the personal liability of the officers themselves, but it does make it more likely that a plaintiff will seek to sue the government, because the government has more money than its employees. The government is also liable for torts such as TRESPASS and invasion of privacy.
In 1988, the Supreme Court significantly altered the balance between the public interest in granting federal employees immunity from personal suits and the right to sue those employees personally for damages caused by their conduct. In Westfall v. Erwin, 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988), the Court ruled that a federal employee is not absolutely immune for official actions "unless the challenged conduct is within the outer perimeter of an official's duties and is discretionary in nature." Westfall denied most rank-and-file federal employees immunity from lawsuits against them personally for common-law torts committed in the scope of employment.
In response, Congress quickly passed the Federal Employees Reform and Tort Compensation Act of 1988 (102 Stat. 4563) as an amendment to the FTCA. The act overruled Westfall by broadening the class of activities given immunity. Originally limited to the operation of motor vehicles, the act gave immunity to any wrongful or negligent act that an employee commits while acting within the scope of his or her office or employment. Congress required the government to accept sole responsibility for its employees' actions in the scope of employment, leaving those employees free to administer government policies without fear of personal liability.


Happy Tuesday! This week’s notable decision is out of the Northern District of California in the matter of Nagy v. Group Long Term Disability Plan for Employees of Oracle Am., Inc. The court held that California Insurance Code Section 10110.6 renders void a discretionary clause found in the long-term disability plan itself, even though it was not contained in the policy of insurance. On de novo review of the claim denial, the court determined that the claimant is disabled by Chronic Fatigue Syndrome. In coming to this conclusion, the court considered a post-final decision declaration by the claimant’s treating doctor since Hartford failed to give the claimant notice that its consultants had unsuccessfully tried to contact the doctor. The court also considered Plaintiff’s Social Security Disability Insurance decision, which was rendered one year after Hartford’s final decision.
The Court’s determination of the standard of review follows the weight of authority that does not permit an insured disability plan from escaping a State’s ban on discretionary clauses in insurance policies by simply putting the discretionary language in the Plan document. Because there are some courts that will permit plans to reserve discretionary authority through the plan document when they cannot do so through the insurance policy, I anticipate this issue will eventually wind its way up to the Supremes. What do you think? Enjoy this week’s cases!
•· Release signed by Plaintiff, an experienced businessman, prevents Plaintiff from pursuing prohibited transaction claim related to ESOP. Halldorson v. Wilmington Trust Retirement and Institutional Services Company, No. 115CV1494LMBIDD, __F.Supp.3d__, 2016 WL 1643862 (E.D. Va. Apr. 22, 2016) (Judge Leonie M. Brinkema).
•· In uncontested motion, granting class certification of “all persons who were participants in the ESOP when Atrium terminated the ESOP effective July 1, 2012 and/or beneficiaries of such ESOP participants or at any time thereafter. Excluded from the Plaintiff Class are the individual Defendants and their immediate families; the officers and directors of Defendant Atrium Funding, Atrium and Dejana Affiliate Companies; and legal representatives, successors, and assigns of any such excluded persons.” Kindle v. Dejana, No. 14CV6784SJFARL, 2016 WL 1642648 (E.D.N.Y. Apr. 25, 2016) (Judge Feuerstein).
•· An administrator may amend deferred compensation plan, including specifically by authorizing the administrator to amend the rate at which participants’ deferred income accounts are credited with future earnings. Class defined as “Participants in the Plan who retired as of December 31, 2012, had elected to receive distributions of deferred income during retirement in installments, and for whom the amount or manner of their benefit payment was altered by the 2012 Amendment; and the Beneficiaries of those Participants” does not meet Rule 23 requirements for class certification. Plotnick v. Computer Scis. Corp. Deferred Comp. Plan for Key Executives, No. 1:15-CV-01002, __F.Supp.3d___, 2016 WL 1704158 (E.D. Va. Apr. 26, 2016) (Judge T.S. Ellis, III).
•· Plan provision stating “[t]he Plan Administrator has appointed the Insurance Company [Cigna] as the named fiduciary for deciding claims for benefits under the Plan, and for deciding any appeals of denied claims” is insufficient to invoke an arbitrary and capricious standard of review. On de novo review, the court found overwhelming and unanimous medical evidence that Plaintiff suffered from a mental impairment that precluded her from doing her specific job as a hospital account manager with Quest Diagnostics. “Defendant relied on unreasonable inferences made from isolated and out-of-context notations in the medical record, an incomplete paper review by a psychiatrist who never examined Plaintiff, and a lack of information about Plaintiff’s job demands.” Levine v. Life Ins. Co. of N. Am., No. CV 14-7050, 2016 WL 1621918 (E.D. Pa. Apr. 21, 2016) (Judge Rufe).
•· “[T]he TPA’s reliance on file reviews that improperly questioned plaintiff’s credibility and which did not sufficiently support the denial of benefits, its rejection of the opinions of plaintiff’s treating medical providers, its failure to adequately consider the number and nature of plaintiff’s medications, and its failure to consider the specific requirements of plaintiff’s job lead to the conclusion that the denial of plaintiff’s claim for benefits was arbitrary and capricious. Stated differently, it was the ‘cumulative effect’ of these factors, rather than any single factor, that results in a finding that the TPA’s decision was arbitrary and capricious.” Groth v. Centurylink Disability Plan, No. 2:13-CV-1238, 2016 WL 1621724 (S.D. Ohio Apr. 25, 2016) (Magistrate Judge Norah McCann King).
•· Plaintiff’s Section 1132(a)(3) claim does not allege an injury separate and distinct from the denial of benefits or that the remedy afforded by Congress under Section 1132(a)(1)(B) is otherwise inadequate. Klein v. Aetna Inc. Long Term Disability Benefits Plan Defendant, No. 3:15-CV-00742-GNS, 2016 WL 1629376 (W.D. Ky. Apr. 22, 2016) (Judge Greg N. Stivers).
•· Standard Insurance LTD Policy was not “offered or issued” in the State of Illinois within the meaning of Section 2001.3 of Title 50 of the Illinois Administrative Code, where Genco, a Delaware corporation with its principal place of business in Pennsylvania, negotiated the Standard policies insuring the Genco Plan in Pennsylvania; all negotiations and decision-making regarding the LTD Policy occurred outside the State of Illinois; the LTD Policy and its associated Certificates of Insurance were delivered by Standard to Genco in Pennsylvania; and Genco paid all the premiums from its Pennsylvania office; abuse of discretion review applies to LTD claim. Nasalroad v. Standard Ins. Co., No. 15-CV-895-SMY-DGW, __F.Supp.3d___, 2016 WL 1667335 (S.D. Ill. Apr. 26, 2016) (Judge Yandle).
•· No dismissal of disability claim for failure to exhaust where Defendants failed to demonstrate that any plan document expressly requires a claimant to exhaust administrative remedies. Lin v. Metro. Life Ins. Co., No. C 15-2126 SBA, 2016 WL 1611036 (N.D. Cal. Apr. 22, 2016) (Judge Saundra Brown Armstrong).
•· Cal. Ins. Section 10110.6 renders void discretionary clause found in the Plan itself, but not in the policy of insurance. On de novo review, claimant is disabled by Chronic Fatigue Syndrome. Court expanded administrative record to include a doctor’s declaration since Hartford failed to give Plaintiff notice that its consultants had unsuccessfully tried to contact the doctor. Court also considered Plaintiff’s SSDI decision, which was rendered one year after Hartford’s final decision. Nagy v. Grp. Long Term Disability Plan for Employees of Oracle Am., Inc., No. 14-CV-00038-HSG, 2016 WL 1611040 (N.D. Cal. Apr. 22, 2016) (Judge Haywood Gilliam).
•· United of Omaha did not abuse its discretion in interpreting disability plan terms to find that Plaintiff became disabled no earlier than July 2nd when disabling injury occurred on July 1st (the be same day that Plaintiff’s salary was reduced from $83,150 to $54,995), thus entitling Plaintiff to a smaller monthly benefit amount. Greggory B. Owings v. United of Omaha Life Insurance Company, No. 15-CV-1108-EFM, 2016 WL 1660550 (D. Kan. Apr. 27, 2016) (Judge Eric F. Melgren).
•· Lincoln did not abuse its discretion in denying long-term disability benefits to claimant with multilevel degenerative disc disease, where it relied on reviews by a registered nurse and two board-certified independent medical consultants. Till v. Lincoln Nat’l Life Ins. Co., No. 2:14-CV-721-WKW, __F.Supp.3d___, 2016 WL 1631796 (M.D. Ala. Apr. 25, 2016) (Judge W. Keith Watkins).
•· In enforcement of judgment action stemming from ERISA class action litigation, Government properly withheld documents under FOIA Exemption 5, which prevents disclosure of inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. Welby, Brady & Greenblatt, Llp v. The United States Department of Health and Human Services & Sylvia Matthews Burwell, Sec’y, , No. 15-CV-195 (NSR), 2016 WL 1718263 (S.D.N.Y. Apr. 27, 2016) (Judge Nelson S. Roman).
•· Breach of contract and fiduciary duty claims contending that Defendants failed to adhere to their contractual notice obligations, thereby causing the denial of $115,000 in life insurance benefits, is completely preempted by ERISA. No breach of fiduciary duty claim under ERISA where SPD provided to insured described conversion option. Haymaker v. Reliance Standard Life Ins. Co., No. CV 15-06306, 2016 WL 1696851 (E.D. Pa. Apr. 27, 2016) (Judge Pappert).
•· Various state law claims brought by tribal government to recover funds Blue Cross illegally billed and retained in violation of its third-party administrator (TPA) agreements are preempted by ERISA. Band v. Blue Cross Blue Shield of Michigan, No. 15-13708, __F.Supp.3d___, 2016 WL 1665157 (E.D. Mich. Apr. 27, 2016) (Judge David M. Lawson).
•· Claim for a declaratory judgment to determine hire date for purposes of pension benefits is preempted by ERISA. And, claim dismissed because Plaintiff failed to exhaust his administrative remedies. Doran v. Joy Glob., Inc., No. 2:15-CV-243, 2016 WL 1633307 (E.D. Tenn. Apr. 22, 2016) (Judge J. Ronnie Greer).
•· Claim seeking determination that ERISA plan is not entitled to reimbursement out of health plan participant’s settlement reached with third-party tortfeasor under Haw. Rev. Stat. § 663-10 is completely preempted under the test in Davila. Noetzel v. Hawaii Medical Service Association, No. CV 15-00310 SOM/KJM, 2016 WL 1698264 (D. Haw. Apr. 27, 2016) (Judge Susan Oki Mollway).
•· Deceased life insured breached his divorce judgment by changing the beneficiary designations from his sons to his new wife, but the court cannot determine, without further briefing, the percentage of the benefits payable to the surviving son in light of other son predeceasing insured. State Farm Life & Accident Assurance Company v. Jeffrey S. Goecks & Donna Goecks, et al., No. 14-CV-885-WMC, 2016 WL 1715205 (W.D. Wis. Apr. 28, 2016) (Judge William M. Conley).
•· Bodily or mental infirmity, illness or disease exclusion under the AD&D Rider is triggered and precludes benefits for insured who died in her home after she attempted to quit drinking alcohol after several years of alcohol abuse, became ill during detoxification, and fell and hit her head before being found dead. Corey Wagner, Individually & As The Personal Representative of The Estate Of Nancy J. Wagner vs. Minnesota Life Insurance Company, No. CV 15-47-M-DLC, 2016 WL 1644364 (D. Mont. Apr. 22, 2016) (Judge Dana L. Christensen).
•· Plaintiff “failed to present any evidence from which a reasonable fact finder could conclude that CCCHC’s stated, legitimate, nondiscriminatory reasons for discharging her were not true but, were instead, pretexts for discrimination based on a specific intent to retaliate against her for having enrolled in an ERISA plan, or to prevent her from attaining ERISA benefits.” Francis v. S. Cent. Houston Action Council Inc., No. CV H-14-1277, 2016 WL 1650790 (S.D. Tex. Apr. 25, 2016) (Judge Sim Lake).
•· In lawsuit arising from alleged misinformation about pension benefits, denying Boeing’s motion for summary judgment on the basis of the applicable statute of limitations since there remains a genuine issue of material fact as to whether Plaintiffs were provided the necessary information to alert them to their claims and Plaintiffs are entitled to further discovery under Rule 56(d). Monper v. Boeing Co., No. C13-1569 RSM, 2016 WL 1703839 (W.D. Wash. Apr. 28, 2016) (Judge Ricardo S. Martinez).
•· No statutory penalties of $110 per day under 29 U.S.C. § 1132(c)(1) against the disability plan and insurer for failing to produce documents required by 29 C.F.R. § 2560.503-l(h)(2)(iii). Lin v. Metro. Life Ins. Co., No. C 15-2126 SBA, 2016 WL 1611036 (N.D. Cal. Apr. 22, 2016) (Judge Saundra Brown Armstrong).
•· “This Court (1) confirms the $460,042.99 arbitration award in favor of Petitioners, along with 5.25% interest from August 7, 2015 through the date of this judgment; and (2) awards Petitioners attorneys’ fees and costs in the amount of $1,060.” Trustees of the New York City Dist. Council of Carpenters Pension Fund v. V. Power Enterprises Inc., No. 15CV6978, 2016 WL 1629345 (S.D.N.Y. Apr. 22, 2016) (Judge William H. Pauley III).
•· Granting default judgment and awarding Plaintiffs outstanding contributions in the amount of $7,500.66, liquidated damages in the amount of $799.59, interest in the amount of $80.00, and attorneys’ fees and court costs in the amount of $1,031.16, for a total of $9,411.41. Louis-Kansas v. Edwards-Kamadulski, LLC, No. 4:16-CV-00302-NCC, 2016 WL 1624019 (E.D. Mo. Apr. 25, 2016) (Judge Henry Edward Autrey).
•· R&S has produced evidence sufficient to challenge Plaintiffs’ audit at the summary judgment stage. James Bigham, John Quarnstrom, Robert Vranicar, Jim Bowman, Mike McCauley, & Matt Fairbanks, as Trustees of the Sheet Metal Local #10 Control Bd. Trust Fund, & the Sheet Metal Local #10 Control Bd. Trust Fund, Plaintiffs, v. R&S Heating & Air Conditioning, Inc., Defendant., No. CV 14-1357 (DWF/FLN), __F.Supp.3d__, 2016 WL 1626838 (D. Minn. Apr. 22, 2016) (Judge Donovan W. Frank).
•· Court’s previous order is void for lack of subject matter jurisdiction because the parties are not diverse from one another and Trustees’ alter ego claim does not arise under federal law. Trustees Of The Construction Industry And Laborers Health And Welfare Trust vs. PRO-CUT LLC, Defendant., No. 212CV00205GMNVCF, 2016 WL 1688001 (D. Nev. Apr. 26, 2016) (Judge Gloria M. Navarro).


The Comptroller of the Currency and the Federal Deposit Insurance Corporation shall establish minimum requirements for accounts providing basic transaction services for consumers at insured depository institutions in order for such accounts to qualify as lifeline accounts for purposes of this section and section 1817(b)(2)(E) of this title.
(A) Whether the account is available to provide basic transaction services for individuals who maintain a balance of less than $1,000 or such other amount which the Comptroller may determine to be appropriate.
(B) Whether any service charges or fees to which the account is subject, if any, for routine transactions do not exceed a minimal amount.
(C) Whether any minimum balance or minimum opening requirement to which the account is subject, if any, is not more than a minimal amount.
(D) Whether checks, negotiable orders of withdrawal, or similar instruments for making payments or other transfers to third parties may be drawn on the account.
(E) Whether the depositor is permitted to make more than a minimal number of withdrawals from the account each month by any means described in subparagraph (D) or any other means.
(F) Whether a monthly statement itemizing all transactions for the monthly reporting period is made available to the depositor with respect to such account or a passbook is provided in which all transactions with respect to such account are recorded.
(G) Whether depositors are permitted access to tellers at the institution for conducting transactions with respect to such account.
(H) Whether other account relationships with the institution are required in order to open any such account.
(I) Whether individuals are required to meet any prerequisite which discriminates against low-income individuals in order to open such account.
(J) Such other factors as the Corporation may determine to be appropriate.
The term "Comptroller" means the Comptroller of the Currency.
The term "Corporation" means the Federal Deposit Insurance Corporation.
The term "insured depository institution" has the meaning given to such term in section 1813(c)(2) of this title.
The term "lifeline account" means any transaction account (as defined in section 461(b)(1)(C) of this title) which meets the minimum requirements established by the Corporation under this subsection.
The provisions of this section shall not take effect until appropriations are specifically provided in advance. There are hereby authorized to be appropriated such sums as may be necessary to carry out the provisions of this section.
Section was enacted as part of the Bank Enterprise Act of 1991, and also as part of the Foreign Bank Supervision Enhancement Act of 1991 and as part of the Federal Deposit Insurance Corporation Improvement Act of 1991, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Section is comprised of section 232 of Pub. L. 102–242. Subsec. (b) of section 232 of Pub. L. 102–242 amended section 1817 of this title.
2010-Subsec. (a). Pub. L. 111–203, §353(1), struck out "by Federal Reserve Board" at end of heading.
Subsec. (a)(1). Pub. L. 111–203, §353(2), substituted "The Comptroller of the Currency" for "The Board of Governors of the Federal Reserve System," and "section 1817(b)(2)(E)" for "section 1817(b)(2)(H)".
Subsec. (a)(2)(A). Pub. L. 111–203, §353(3), substituted "Comptroller" for "Board".
Subsec. (a)(3). Pub. L. 111–203, §353(4), added subpar. (A) and redesignated former subpars. (A) to (C) as (B) to (D), respectively.
2006-Subsec. (a)(1). Pub. L. 109–171 repealed Pub. L. 104–208, §2704(d)(16). See 1996 Amendment note below.
Subsec. (a)(2). Pub. L. 109–173, §3(a)(9)(A), struck out "the Board and" before "the Corporation" in introductory provisions.
Subsec. (a)(2)(J). Pub. L. 109–173, §3(a)(9)(B), substituted "the Corporation" for "the Board".
Subsec. (a)(3)(A). Pub. L. 109–173, §3(a)(9)(C), added subpar. (A) and struck out heading and text of former subpar. (A). Text read as follows: "The term 'Board' means the Board of Governors of the Federal Reserve System."
Subsec. (a)(3)(C). Pub. L. 109–173, §3(a)(9)(D), substituted "Corporation" for "Board".
1996-Subsec. (a)(1). Pub. L. 104–208, §2704(d)(16), which directed substitution of "section 1817(b)(2)(G) of this title" for "section 1817(b)(2)(H) of this title", was repealed by Pub. L. 109–171. See Effective Date of 1996 Amendment note below.
1992-Subsec. (a)(1). Pub. L. 102–558, §303(b)(4), substituted "section 1817(b)(2)(H)" for "section 1817(b)(10)". Pub. L. 102–550, §1605(a)(3), which made an identical amendment, was repealed, effective Oct. 28, 1992, by Pub. L. 102–558, §305, set out as a Repeal of Duplicative Provisions note under section 1815 of this title.
Subsec. (b). Pub. L. 102–558, §303(b)(1), made technical correction to directory language of subsec. (b)(1). See Codification note above. Pub. L. 102–550, §1604(b)(1), which made a similar amendment, was repealed, effective Oct. 28, 1992, by Pub. L. 102–558, §305, set out as a Repeal of Duplicative Provisions note under section 1815 of this title.
Amendment by Pub. L. 109–173 effective Jan. 1, 2007, see section 3(b) of Pub. L. 109–173, set out as a note under section 1817 of this title.
Pub. L. 102–558, title III, §303(b)(4), Oct. 28, 1992, 106 Stat. 4225 , provided that the amendment made by that section is effective on the effective date of the amendment made by section 302(a) of Pub. L. 102–242 [see section 302(g) of Pub. L. 102–242, set out as a note under section 1817 of this title].
Pub. L. 102–550, title XVI, §1605(a)(3), Oct. 28, 1992, 106 Stat. 4085 , which provided effective date provisions for the amendment made by that section, was repealed, effective Oct. 28, 1992, by section 305 of Pub. L. 102–558, set out as a Repeal of Duplicative Provisions note under section 1815 of this title.


§ 610.030 Permit Required for Peddlers and Solicitors, Available for Canvassers.
§ 610.050 Application for Permit.
§ 610.070 Issuance of Permit.
§ 610.090 Denial — Administrative Revocation.
§ 610.100 Hearing on Appeal.
§ 610.110 Display of Permit.
§ 610.120 Validity of Permit.
§ 610.130 Revocation of Permit.
§ 610.140 Distribution of Handbills and Commercial Flyers.
§ 610.160 Violation to Be Prosecuted as Trespass.
Section 610.030 Permit Required for Peddlers and Solicitors, Available for Canvassers.
Section 610.050 Application for Permit.
Section 610.070 Issuance of Permit.
Section 610.090 Denial — Administrative Revocation.
Section 610.100 Hearing on Appeal.
Section 610.110 Display of Permit.
Section 610.120 Validity of Permit.
Section 610.130 Revocation of Permit.
Section 610.140 Distribution of Handbills and Commercial Flyers.
Section 610.160 Violation to Be Prosecuted as Trespass.
For a peddler acting on behalf of a merchant not otherwise licensed to do business within the City: A fee of five dollars ($5.00) per day.
For a solicitor, including a commercial solicitor advertising an event, activity, good or service for purchase at a location away from the residence: No fee.
For a canvasser requesting a permit: No fee.
A list of all infraction, offense, misdemeanor and felony convictions of each person for whom a permit is requested for the seven (7) years immediately prior to the application.
During the period of time following the application for one (1) or more permits and its issuance, the City shall investigate as to the truth and accuracy of the information contained in the application. If the City has not completed this investigation within the eight (8) business hours provided in Section 610.070, the permit will nonetheless be issued subject, however, to administrative revocation upon completion of the investigation. If a canvasser requests a permit, the investigation will proceed as described above, but if the City refuses to issue the permit (or revokes it after issuance), the canvasser will be advised that the failure to procure a permit does not prevent him/her from canvassing the residents of the City.
If the issuing officer denies, or upon completion of an investigation revokes, the permit to one (1) or more persons, he/she shall immediately convey the decision to the applicant orally and shall within sixteen (16) working hours after the denial prepare a written report of the reason for the denial which shall be immediately made available to the applicant. Upon receipt of the oral notification and even before the preparation of the written report, the applicant shall have at his/her option an appeal of the denial of his/her application before the Municipal Court of the City.
If the applicant requests a hearing under Section 610.090, the hearing shall be held in accordance with the Administrative Procedure Act of the State of Missouri and review from the decision (on the record of the hearing) shall be had to the Circuit Court of the County in which the City is located. The hearing shall also be subject to the Missouri open meetings and records law.
A permit shall be valid within the meaning of this Chapter for a period of three (3) months from its date of issuance or the term requested, whichever is less.
The revocation procedure shall be initiated by the filing of a complaint by the City Attorney or the issuing officer pursuant to the State Administrative Procedure Act and a hearing before the tribunal identified in Section 610.090 above.
No handbill or flyer shall be left at or attached to any of the property having a "no solicitor" sign of the type described in Section 610.150(1) and (2).


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Florida’s medical m alpractice law is very complicated as there are many procedural requirements set forth in Chapter 766 of the Florida Statutes. If these rules are not strictly followed, the court may strike pleadings and, in a worst case scenario, a potential lawsuit may subsequently be barred by the applicable statute of limitations.
An early stage in any medical malpractice action is a process called “pre-suit.” During pre-suit, one of the statutory requirements is that you put potential defendants on notice of your intention to initiate litigation. No lawsuit can be filed for a period of 90 days, and during this 90 days, the statute of limitations is tolled. (This tolling period can be further extended an additional 90 days by filing an extension of the statute of limitations.) When the pre-suit 90 day period is completed, the claimant can file a medical malpractice lawsuit within either the remainder of the original statute of limitations period, or 60 days, whichever is greater.
Although this process seems relatively straightforward, there have been disputes over the precise meaning of the statute and how the tolling periods applies. It is clear from Section 766.106(3)(a) that the statute of limitations is tolled for 90 days for potential defendants who have been served with the notice of intent; however, an issue arises as to whether this tolling period also applies to defendants who have not been served with a notice to intent to sue.
Recently, the Third District Court of Appeal issued a ruling answering this question. Salazar v. Coello, 2014 WL 7156859 (3rd DCA 2014). The Court held that Section 766.106(3)(a) tolls the statute of limitations for all likely defendants, even if they were not served with a notice of intent to initiate litigation. Id. The Court undertook an extensive review of the Florida Statutes and concluded that the Florida Legislature intended that the statute of limitations is tolled as to any defendant, even those who were not originally served with a notice of intent. Id. The Court further reasoned that the Florida Legislature did not intend for there to be any difference between the terms “prospective defendant” and “potential defendant” that are used in the statute. Id.
This is an important ruling because, as in the Salazar case, if the statute of limitations was not tolled during this 90 day period, the notice of intent would have been filed after the expiration of the statute of limitations, and consequently, any subsequent pleadings would likely have been stricken. Thus, the Plaintiff ultimately would not have been able to hold a potentially negligent party accountable for medical negligence.
Recently, in Buck v. Columbia Hospital Corp. of South Broward, Case No. 4D13-2165 (Fla. 4th DCA) (September 10, 2014), the Fourth DCA affirmed the dismissal of a complaint for failing to comply with the pre-suit requirements of Chapter 766 of the Florida Statutes. The issue was whether this cause of action was ordinary negligence or medical negligence. This distinction is essential because when there is medical negligence, you are required to follow the pre-suit requirements set forth in Chapter 766. Failure to comply these requirements may result in a dismissal of the complaint. Unfortunately, this is exactly what happened in this case.
In Buck, the Plaintiff alleged that while the decedent was being transported from a gurney to an x-ray table at a hospital, hospital employees dropped her onto an x-ray table causing a lumbar spine fracture. Buck alleges that this eventually caused the decedent’s death. The hospital moved to dismiss the complaint for failing to comply with pre-suit requirements and the trial court granted the motion. The Fourth DCA affirmed this decision.
The Fourth held that a claim for negligence is subject to the pre-suit requirements of Chapter 766 if, “the wrongful act is directly related to the improper application of medical services and the use of professional judgment or skill.” The Court further reasoned that, “[w]hen determining whether a complaint alleges a cause of action in medical negligence versus simple negligence, the key inquiry is whether the action arises out of medical diagnosis, treatment, or care.” The Court held that the Plaintiff’s cause of action alleged medical negligence because hospital employees were engaged in the “rendering” of medical care and services when they lifted the decedent from the transport gurney and placed her on the x-ray table as part of a medical procedure.
This case illustrates that it is absolutely essential to hire knowledgeable, experienced, and skilled medical malpractice attorneys when dealing with matters involving medical negligence. If Buck had complied with the pre-suit requirements of Chapter 766, it is likely that the complaint would not have been dismissed.
The Fifth District Court of Appeal recently reversed a final summary judgment entered in favor of a psychiatric facility, finding that the plaintiff had no obligation to engage in the presuit normally required in medical malpractice cases.
James Joseph, a former patient of University Behavioral Center (“UBC”), filed suit against the psychiatric facility after he was allegedly punched by another patient. The attack caused Joseph to suffer a detached retina and, eventually, the loss of his left eye. L.F., the individual who threw the punch, was a fellow patient at UBC. Joseph alleged that, prior to the attack, L.F. had bullied and punched him on numerous prior occasions, causing Joseph to ask UBC to separate the two. UBC refused. Joseph alleged that UBC was negligent in failing to protect him.
UBC filed a motion for summary judgment contending that Joseph’s claim was for medical negligence, and that Joseph had failed to comply with the presuit requirements of Florida’s Medical Malpractice Act, including the two-year statute of limitations. The trial court agreed and granted UBC’s motion. Joseph appealed, contending that his claim was for ordinary negligence. The 5th DCA agreed with Joseph and reversed.
Joseph v. University Behavioral LLC., et. al., __ So.3d ___ (Fla. 5th DCA 2011).
The 5th District Court of Appeals recently addressed the adequacy of the qualifications of a pre-suit expert, and determined that the trial court did not err in its denial of the defendant hospital’s motion to dismiss, despite the fact that the registered nurse at issue had no hospital experience in the preceding three years.
The complaint alleged that the plaintiff had been admitted to the defendant hospital suffering from abdominal pain. His physician prescribed narcotics, among other things, to manage his pain. Thereafter, the nurses on duty allegedly failed to monitor the plaintiff’s vital signs throughout the night, and ultimately found him unresponsive and suffering respiratory distress the following morning. The plaintiff allegedly stopped breathing for thirteen minutes and suffered brain damage as a result.
In February, 2008, the plaintiff notified the defendant of his intent to initiate litigation in accordance with Chapter 766. Plaintiff attached the affidavit and CV of a registered nurse, which indicated that she had been employed as a consultant in a medical rehabilitation center from 1993- 2006. The affidavit did not indicate that the r.n. had any experience as a hospital nurse in the three years prior to the incident at issue. Subsequent affidavits provided that the r.n. had been employed as a medical case manager providing nursing care for many cases that involved brain injury, and that, from 2002-2005, she had been employed as a nursing consultant. As to causation, the r.n. averred that her training and experience enabled her to state with a reasonable degree of certainty that a patient left without oxygen would incur brain damage and/or death.
The defendant moved to dismiss, arguing that the documents provided made it clear that the r.n. had not devoted any time to clinical practice or consulting in a hospital setting since 1993, and that she did not have the requisite training and experience to opine about the medical causation of the plaintiff’s injuries for pre-suit purposes.
In affirming the trial court’s denial of the defendant’s motion to dismiss, the 5th DCA stated that the pre-suit requirements were “…not intended to be a Daedalean labyrinth that denies a plaintiff access to the courts.” Although the expert had not been a floor nurse at a hospital during the preceding three years, the Court held that the CV and affidavits, when taken together, established that she had been actively engaged, both in the practice of nursing and nurse consulting, such that she was sufficiently qualified to give an opinion as to standard of care for hospital nurses and causation. Holmes Regional Medical Center v. Wirth, Case No. 5D10-423 (Fla. 5th DCA Nov. 12, 2010).
In Lakeland Regional v. Allen, 32 Fla. L. Weekly D94b (2d DCA December 27, 2006) the Second DCA addressed a situation where a hospital was alleged to have served a patient a turkey sandwich that caused salmonella infection and the ultimate demise of the patient. The trial court denied a motion to dismiss for failure to comply with presuit, and certiorari review was granted.
The Second DCA recognized that Chapter 766 doesn’t apply where the cause of the injury is something other than improper medical care, and therefore presuit compliance isn’t required. The Court recognized that there was a case where the patient was on a prescribed diet and the prescription wasn’t followed that did require presuit notice. But, the Court found the instant matter to be analogous to the Quintanilla case which found that burn injuries caused by a nurse spilling scalding-hot tea onto a patient constituted simple negligence and not medical malpractice.
In Michael v. MSN, 32 Fla. L Weekly D207b (3rd DCA January 10, 2007), a man went to a hospital following a head laceration. While there he experienced chest pain, and was given 5 doses of nitroglycerine by a nurse – without physician approval. The next morning the doctor came in and determined the gentleman had had a heart attack that, because it went untreated, soon resulted in the man’s death.
Before the expiration of the statute of limitations, presuit notice was served on the hospital and the doctors. The attached affidavit cited negligence on the part of the physicians “and medical providers.” The notice also requested the identity of anyone else involved. Almost a year later, the hospital informed Plaintiff’s counsel that the nurse was an agency nurse not employed by the hospital. Plaintiff’s counsel immediately sought leave to amend to add the nurse and the agency. The Court granted leave, but then granted summary judgment in favor of the nurse and the agency finding presuit notice defective – particularly the affidavit – for failing to list a name, job title, or job description for each prospective defendant.

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