Presently pending and ready for review in this employment discrimination case is the motion to dismiss, or in the alternative, for summary judgment filed by Defendant Kathleen Sebelius ("the Secretary" or "Defendant"). (ECF No. 8). Also pending are Plaintiff's motions to deny Defendant's motion (ECF No. 32) and for leave to file a surreply (ECF No. 36). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant's motion will be granted and Plaintiff's motions will be denied.
Kathleen Sebelius is the Secretary of the Department of Health and Human Services ("HHS"). She has been sued in her official capacity as the head of the agency that oversees the National Institutes of Health ("NIH").
This dispute arises out of Maria Agelli's ("Dr. Agelli" or "Plaintiff") non-selection for a position at NIH. The National Cancer Institute ("NCI"), an institute of the NIH, has employed Dr. Agelli as a Medical Officer, at the GS-14 pay grade, since 2001. (ECF No. 1 ¶ 7). Plaintiff was born in 1952, and was fifty-nine (59) years old during the events at issue. (Id. ¶ 3). In July 2011, NIH advertised an opening on the USAJOBS system: NIH-NCI-DH-11-507121 ("Vacancy 121"). The position was for a Medical Officer (Research), at the GS-15 pay grade, in the Department of Health and Human Services, NIH, NCI, Division of Cancer Control and Population Sciences ("DCCPS"), Epidemiology and Genetics Research Program ("EGRP"). (See ECF No. 8-2). Through this vacancy, Dr. Muin Khoury, Acting Associate Director of EGRP, DCCPS, NCI, NHI, attempted to recruit an individual to lead the "Knowledge Management Unit" within the Office of the Associate Director of EGRP. (ECF No. 8-3 ¶ 3; ECF No. 28-1, at 1). The major duties advertised for the position included: (1) providing leadership for the direction of nationwide extramural research programs in cancer epidemiology; (2) planning, developing, directing, coordinating and evaluating a program of epidemiologic research to study differences in cancer susceptibility and risk in individuals and populations and the multiple environmental and genetic factors that jointly contribute to cancer, with the ultimate goal of elucidating the etiology of cancer; (3) serving as a medical liaison between the NCI and numerous cancer research working groups and committees and between own organization and other NCI programs; and (4) facilitating the dissemination of information about the risk factors and causes of cancer to inform cancer prevention and control interventions. (ECF No. 8-2, at 1-2). The initial closing date for the announcement was August 11, 2011, but the application deadline was extended to August 31, 2011 due to technical difficulties on USAJOBS. Plaintiff initially submitted some application materials on August 10, 2011, (ECF No. 28-5), and later submitted a complete application on August 31, 2011. EGRP received a total of twenty-three (23) applications for this position, including Dr. Agelli's. (ECF No. 8-5). On September 15, 2011, Plaintiff, and the twenty-two other applicants for the position, received a message stating that "[t]he vacancy announcement . . . was cancelled or postponed." (ECF No. 8-6, at 2). Thus, none of the applicants to the position, including Dr. Agelli, were interviewed or selected for the position. The Knowledge Management Unit Lead position was not filled, and the position has not been re-advertised since its cancellation in September 2011. Stacey Vandor, the Planning Officer for DCCPS, informed Dr. Khoury that "the vacancy announcement was being cancelled because the fulltime equivalent ("FTE") was needed for a senior-level position in a different program within DCCPS." (ECF No. 8-4 ¶ 3). Ms. Vandor affirms that "[t]he FTE was rescinded because in or about June 2011, the Associate Director for the Surveillance Research Program ("SRP") in DCCPS was detailed to a position in another part of the Division." (ECF No. 8-3 ¶ 4). Ms. Vandor explains that "[a]s a result of the detail, it was later determined that a GS-15 FTE was needed for SRP so that a senior-level employee could be hired to perform the duties of the Associate Director for SRP." (Id.). Ms. Vandor decided "that rescinding the FTE for the EGRP position and moving it to SRP was the best allocation of resources for DCCPS." (Id. ¶ 5). Ms. Vandor affirms that she informed Dr. Khoury of this decision in late July 2011, before the applications were submitted and received for the position. Because the announcement was cancelled, Dr. Khoury initially took on the role as Acting Knowledge Management Unit Lead. (ECF No. 8-4 ¶ 9; see also ECF No. 35-7). Dr. Khoury avers that he no longer serves as the Acting Knowledge Management Unit Lead, and that responsibility is now shared among five teams within EGRP. (ECF No. 35-1 ¶ 2).
Plaintiff, who is proceeding pro se, asserts that she is a "physician epidemiologist and scientist," with a medical degree and post-graduate training in internal medicine and rheumatology from the Medical School of the University of Pisa and advanced training in public health and preventative medicine from the University of Maryland Medical School. (ECF No. 1 ¶ 8).
USAJOBS is a widely used application portal for employment with the federal government.
Advertisements about this position stated that "[t]he Knowledge Management Unit is a new unit designed to systematically manage the accumulating knowledge base and tools for cancer epidemiology and genomics to accelerate research, evidence-based recommendations, and translation into prevention and clinical practice." (ECF No. 28-2, at 1). Responsibilities of the position included working "with the four Branches of EGRP and the Scientific Consortia Coordinator on communications, knowledge synthesis, portfolio analysis, and operational priorities." (Id.).
Plaintiff emailed human resources staff at HHS on August 10, 2011 to inform about system malfunction on USAJOBS that prevented her from submitting all of the required application materials by the initial deadline. (See ECF No. 28-6).
Dr. Khoury attests that he is "not familiar with and [has] never met Dr. Maria Agelli." (ECF No. 8-4 ¶ 10). He also does not recall having ever discussed Dr. Agelli with anyone at NCI. (Id.). Ms. Vandor similarly declares that she did not see the list of applicants for Vacancy 121 and was unaware that Dr. Agelli applied for the position. (ECF No. 8-3 ¶ 8).
In October 2011, NIH posted another job announcement, NIH-NCI-DE-12-544615 ("Vacancy 615"), for a "Health Scientist Administrator" position in EGRP, at a GS-13/14 pay grade. (ECF No. 8-7). The job announcement sought a "Knowledge Integration Team Lead." The major duties of that position as advertised were: (1) serving as a Program Officer with responsibility for providing scientific leadership and guidance to the planning, development, implementation and evaluation of the genomic and/or epidemiologic related research program; (2) performing scientific and administrative reviews and analyses of applications/proposal from a programmatic viewpoint; (3) preparing information for and attending advisory/review committee/panel meetings and responding to issues and concerns about specific applications/proposals pertaining to genomic and/or epidemiologic related research; and (4) developing, coordinating and administering grants, cooperative agreements and contracts established to fulfill the mission. (Id. at 1). The announcement designated October 31, 2011 as the application deadline. NIH received over one hundred applications for this position. Dr. Agelli did not apply for Vacancy 615. (See ECF No. 8-8). In or about January or February 2012, Dr. Khoury selected Dr. Sheri Schully, Ph.D., for the position, at a GS-14 pay grade. (ECF No. 8-9). Dr. Khoury attests that at the time, Dr. Schully, whom Plaintiff believes to be in her thirties, was serving as a "Health Science Administrator" in EGRP at a GS-14 pay grade, and her selection to be the Knowledge Integration Team Lead was a lateral promotion. Dr. Khoury attests that aside from having a lower pay grade, the position was "more junior-level" than Vacancy 121, to which Dr. Agelli applied, but which was never filled. (ECF No. 8-4 ¶ 8).
Plaintiff filed the instant complaint against the Secretary on February 15, 2013, alleging non-selection based on age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"). (ECF No. 1). Plaintiff believes that "NCI chose to keep [Vacancy 121] officially vacant rather than selecting her." (Id. ¶ 14). Although Dr. Agelli acknowledges that she did not apply for Vacancy 615, the position for which Dr. Schully was selected, Plaintiff believes that Dr. Schully was given the duties of the position advertised in Vacancy 121. Plaintiff's principal contention is that "the factual appointment of an employee with half her age to the duties of the position, despite the lack of qualifications for the position itself, proves that [Plaintiff] was discriminated against because of her age." (Id.). On May 14, 2013, Defendant submitted a "Notice of Related Case," in which the Secretary informed the court of a previous employment discrimination action that Plaintiff instituted against the Secretary, which Judge Titus dismissed in September 2010, and which decision the Fourth Circuit affirmed in February 2012. (See ECF No. 7). Defendant noted that "[a]lthough the [instant] case involves an allegedly discriminatory non-selection that occurred after the challenged employment actions involved in the previous case, the parties in both cases are identical and, given the nature, breadth, and extent of Plaintiff's allegation of discrimination in the previous case, there would be a substantial duplication of labor if another judge were to hear the new case." (Id. at 2). The case remained before the undersigned.
It appears that Plaintiff has exhausted her administrative remedies and the Secretary does not argue otherwise. (See ECF No. 1-2).
Defendant subsequently filed a motion to dismiss or, in the alternative, for summary judgment on May 16, 2013. (ECF No. 8). Plaintiff then moved six (6) times for an extension of time to file her opposition, which motions were granted. On September 25, 2013, the court issued an order granting Plaintiff's motion for an extension of time and directing that she submit the opposition by October 7, 2013. (ECF No. 24). Without moving for an extension of time, Plaintiff submitted an untimely opposition on October 31, 2013, which identified twenty-seven (27) documents she purported to include as exhibits. (ECF No. 25). On November 7, 2013, Plaintiff submitted twenty-five documents (exhibits 3-27), which did not include all of the exhibits Plaintiff presumably intended to submit with her opposition. (ECF No. 28). Consequently, Defendant moved to strike as untimely Plaintiff's opposition, or alternatively, requested that Plaintiff be provided a final deadline of November 29, 2013 to submit the outstanding documents. (ECF No. 26). On November 14, 2013, the undersigned issued an order granting in part Defendant's motion and directing Plaintiff to file all outstanding materials by November 22, 2013. (ECF No. 29). Plaintiff filed most of the supplemental documentation on November 22, 2013, (ECF No. 31), although she submitted a Rule 56(d) affidavit on December 2, 2013, (ECF No. 32-2), along with her motion to deny Defendant's motion to dismiss or for summary judgment. The Secretary filed a reply to Plaintiff's opposition on January 3, 2014. (ECF No. 35). Plaintiff then moved for leave to file a surreply on January 22, 2014. (ECF No. 36).
On November 12, 2013, Plaintiff filed an opposition to Defendant's "Notice of Related Case," stating her belief that Defendant misused Local Rule 103.1 to "adversely influence the opinion of the Court toward Plaintiff and Plaintiff's case." (ECF No. 27, at 1). The record does not support Plaintiff's position. Local Rule 103.1(b)(ii) states that "[i]f counsel for a defendant believes that a case is related to a prior case and that fact has not been noted on the civil cover sheet by plaintiff, counsel for the defendant shall bring that information to the attention of all parties and the Clerk, and the Clerk shall . . . inform the judge to whom the new case has been assigned." (emphasis added). Here, the civil cover sheet did not identify any related case(s). (See ECF No. 1-4). Defendant's filing of the "Notice of Related Case" was appropriate - and mandatory - under Local Rule 103.1 and Plaintiff's objections are without merit. Plaintiff states in the opposition that since the instant case is unrelated to her prior litigation before Judge Titus, this case should proceed before the undersigned and not be transferred to Judge Titus. Because Plaintiff's case has not been transferred to Judge Titus, the arguments Plaintiff advances in this opposition are moot.
The Secretary has moved to dismiss or, alternatively, for summary judgment. Because both parties rely extensively on matters outside the pleadings, the motion will be treated as one for summary judgment. See Walker v. True, 399 F.3d 315, 319 n.2 (4th Cir. 2005); Offen v. Brenner, 553 F.Supp.2d 565, 568 (D.Md. 2008).
Summary judgment may be entered only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is inappropriate if any material factual issue "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
"A party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [her] pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). "A mere scintilla of proof . . . will not suffice to prevent summary judgment." Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). At the same time, the facts that are presented must be construed in the light most favorable to the party opposing the motion. Scott v. Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
In her complaint, Plaintiff alleges that her non-selection for Vacancy 121 constituted age discrimination under the ADEA. The ADEA makes it "unlawful for an employer . . . to fail or refuse to hire . . . any individual . . . because of [her] age." 29 U.S.C. § 623(a). There are two methods for proving intentional discrimination in employment: (1) through direct evidence; or (2) through circumstantial evidence under the three-step burden shifting scheme set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), and affirmed in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). Although McDonnell Douglas dealt only with Title VII claims, the same framework is applied to age discrimination claims arising under the ADEA. See Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 285 (4th Cir. 2004) (en banc), cert dismissed, 543 U.S. 1132 (2005).
Here, Plaintiff lacks any direct evidence of age discrimination premised on a non-selection, and thus must proceed under the burden-shifting framework established in McDonnell Douglas. See Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). Under that framework, the plaintiff first must establish a prima facie case of discrimination. See McDonnell Douglas Corp., 411 U.S. at 802. After doing so, the burden of production shifts to the defendant to present a legitimate, nondiscriminatory reason for the alleged adverse employment action. See Reeves, 530 U.S. at 142 (2000) ( citing Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). If the defendant succeeds in doing so, the presumption of discrimination raised by the plaintiff's prima facie case is rebutted. See Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 429 (4th Cir. 2000) ( citing Burdine, 450 U.S. at 255 n.10). Then, the plaintiff must prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Burdine, 450 U.S. at 253. In the end, "[t]he plaintiff always bears the ultimate burden of proving that the employer intentionally discriminated against [her]." Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) ( citing Burdine, 450 U.S. at 253).
The Defendant also argues that Plaintiff cannot prevail on her ADEA claim because she cannot show that, but for her age, she would have been selected for Vacancy 121. Ultimately, Plaintiff would have to make this showing to prevail at trial. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). At the summary judgment stage, however, post-Gross decisions have continued to apply the McDonnell Douglas framework. See, e.g., Thornton v. Balt. City Bd. of Sch. Com'rs, Civ. No. WMN-07-1555, 2009 WL 3767090, at *5 (D.Md. Nov. 9, 2009). As will be seen, Plaintiff cannot meet her burden under McDonnell Douglas, thus there is no need to consider the higher standard of "but for" causation.
To establish a prima facie case of discrimination in a non-selection case, Plaintiff must prove that: (1) she was a member of a protected class or classes; (2) she applied and was qualified for the position for which she applied; (3) she was not selected despite her qualifications; and (4) she was rejected for the position in favor of someone not a member of a protected group under circumstances giving rise to an inference of unlawful discrimination. Alvarado v. Bd. of Trustees of Montg. Community College, 928 F.2d 118, 121 (4th Cir. 1991).
Plaintiff has not met this burden because she cannot establish that she was rejected for Vacancy 121 under circumstances giving rise to an inference of unlawful discrimination. As Judge Quarles reasoned in Moore v. Leavitt, Civil No. WDQ-04-2819, 2007 WL 5123539, at *4 (D.Md. Feb. 9, 2007), "to create an inference of discrimination, a plaintiff must at least demonstrate that her 'rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolutely or relative lack of qualifications or the absence of a vacancy in the job sought.'" (quoting Int'l Broth. Of Teamsters v. United States, 431 U.S. 324, 358 n. 44 (1977)) (emphasis added). Here, Plaintiff was not promoted to the Medical Officer (Research) position advertised in Vacancy 121 precisely because of the absence of a full time position in EGRP at the GS-15 pay grade. Stacey Vandor, the Planning Officer for DCCPS who supports the Director of DCCPS with Division-wide planning and resource allocation, attests that the full time position originally posted as Vacancy 121 was rescinded "because in or about June 2011, the Associate Director for the Surveillance Research Program ("SRP") in DCCPS was detailed to a position in another part of the Division. As a result of the detail, it was later determined that a GS-15 FTE was needed for SRP so that a senior level employee could be hired to perform the duties of the Associate Director for SRP." (ECF No. 8-3 ¶ 4).
Indeed, it is undisputed that Defendant canceled Vacancy 121 and did not fill the position. As held in Bowie v. Ashcroft, 283 F.Supp.2d 25, 31 (D.D.C. 2003), "[w]hen a government agency cancels a vacancy announcement and no one outside the protected class is hired to fill the position, the plaintiff cannot establish her prima facie case because she cannot satisfy the fourth prong of the analysis." Fornah v. Univ. of Maryland, Civil Action No. CBD 08-1951, 2009 WL 3247423, at *5 (D.Md. Sept. 30, 2009) ("[p]laintiff cannot make a prima facie case for discrimination because Defendant cancelled the search for Vacancy No. 1189. . . . As the vacancy did not remain open, [d]efendant is entitled to summary judgment on this claim."). In fact, none of the individuals who applied for Vacancy 121 were interviewed or selected, and each applicant received identical notification that "[t]he vacancy announcement  was cancelled or postponed." Nor is there any indication from the record that the vacancy was re-advertised, and that Plaintiff applied, but was rejected. (ECF No. 8-6); see, e.g., Kinnally v. Marriott Int'l Inc., 2006 U.S. Dist. LEXIS 699, at *11 (D.S.C. Jan. 3, 2006) (adopting the Magistrate's recommendation to grant defendant's motion for summary judgment because Plaintiff failed to present evidence sufficient to establish the fourth prong of the McDonnell-Douglas prima facie age discrimination case; "[t]he Magistrate found that, given that MI withdrew the DOEM position in July of 2002, [p]laintiff cannot establish that, following her rejection, the [DOEM] position remained open and the employer continued to seek candidates with comparable qualifications for the position." (internal citations omitted)), aff'd, 205 F.App'x 145, 146 (4th Cir. 2006); Bowie, 283 F.Supp.2d at 31 (stating that no adverse employment action exists if there was no vacancy at the time the plaintiff applied or the position was never filled).
Plaintiff argues that "Dr. Sheri Schully, an employee half the age of and less qualified than Plaintiff, was de facto given the job Plaintiff had applied for, but had been rejected, just a short time before." (ECF No. 25, at 16). Plaintiff contends that "the HHS was looking to hire an employee for a position Dr. Agelli was highly qualified for, that Dr. Agelli applied for the position, that she was not selected and that, shortly thereafter, with the vacancy still open, the HHS gave the duties of the position to an employee half the age of Dr. Agelli and less qualified." (Id. at 17) (emphasis in original). The record does not support Plaintiff's version of the facts. As stated, no one was selected for Vacancy 121. The Secretary submitted with its motion to dismiss or for summary judgment a declaration from Dr. Khoury that he served as Acting Knowledge Management Unit Lead after the FTE slot, which was initially intended to be filled through Vacancy 121, was moved to SRP. The Secretary submitted another declaration from Dr. Khoury with the reply brief indicating that he no longer serves in the acting position "because it was ultimately determined that there would not be a full-time equivalent ("FTE") available to fill that position on a permanent basis and, therefore, there is no Knowledge Management Unit." (ECF No. 35-1 ¶ 2). Dr. Khoury further avers that EGRP created five teams instead: "the Knowledge Integration Team, the Cohort & Consortia Coordination Team, the Portfolio Management & Evaluation Team, the Planning & Budget Team, and the Communications Team." (Id.).
Dr. Khoury also attests that the duties of the Knowledge Management Unit Lead position are being completed "by Dr. Daniela Seminara, GS-15, Senior Scientist and Consortia Coordinator; Dr. Scheri Schully, GS-14, Knowledge Integration Team Lead; Scott Rogers, GS-13, Portfolio Management Team Lead; Chinonye Harvey, GS-13, Planning and Budget Team Lead; and Christine Kaefer, GS-13, Communications Team Lead." (ECF No. 35-1 ¶ 3).
Indeed, Dr. Schully was selected, from over one hundred applicants, for a different position and one to which Plaintiff did not apply. See, e.g., Bowie, 283 F.Supp.2d at 33 ("[p]laintiff has not made out failure to promote claims regarding the March 28, 2000 assignment to Acting Assistant Director of the Grants Monitoring Division and the July 1, 2002 assignment to Acting Assistant Director of the Compliance Division because plaintiff has not alleged that she applied for either position before the 'acting' designations were made." (emphasis added)). Specifically, Dr. Schully was selected for the "Health Scientist Administrator" position advertised in Vacancy 615 at a lower pay grade than the position advertised in Vacancy 121, and the same pay grade at which Plaintiff is currently employed. Ms. Vandor attests, "[t]hat vacancy announcement was for four (4) GS-601-13/14 Health Scientist Administrator (non-supervisory) positions. Dr. Schully was already a GS-601-14 Health Science Administrator in EGRP, and her FTE moved with her to the Knowledge Integration Team Lead position." (ECF No. 8-3 ¶ 7). Nevertheless, even crediting Plaintiff's argument that the "Knowledge Management Unit Lead" position advertised in Vacancy 121 was subsumed in the "Knowledge Integration Team Lead" position in Vacancy 615, Plaintiff had every opportunity to - but did not - apply for Vacancy 615. A similar argument to one Plaintiff advances here was rejected in Moore. Specifically, in that case, plaintiff argued that "it would be a mistake to accept the [DHHS's] assertion that VAN RN '032 was never filled  because the DHHS filled other GS-13 positions in the following years that required the same prerequisites." Moore, Civil No. WDQ-04-2819, 2007 WL 5123539, at *5. Judge Quarles concluded that "Moore [did] not show that she or other members of her protected class were unable to compete for those subsequent VANs." Similarly, Dr. Agelli cannot show that she competed for Vacancy 615 and that Dr. Schully was selected over her. See, e.g., Williams v. Giant Food Inc., 370 F.3d 423, 430 (4th Cir. 2004) ("If an employer has a formal system of posting vacancies and allowing employees to apply for such vacancies, an employee who fails to apply for a particular position cannot establish a prima facie case of discriminatory failure to promote."); Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1345 (11th Cir. 2003) (stating that "[a] general interest in being rehired without submitting an application is not enough to establish a prima facie case of age discrimination when the defendant-employer has publicized an open position"). She also cannot show that Dr. Schully was selected for Vacancy 121, to which Plaintiff applied, but which was subsequently cancelled.
Applications for Vacancy 615 were solicited from United States citizens from October 17, 2011 to October 31, 2011. (ECF No. 8-7).
Plaintiff asserts that she believes the announcement was cancelled because HHS/NCI specifically intended not to select her for the position and it also denied her a long overdue promotion to a GS-15 pay grade. But this is "merely a self-serving opinion that cannot, absent objective corroboration, defeat summary judgment." Williams, 370 F.3d at 433; National Enters., Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000); Brown v. McLean, 159 F.3d 898, 904-04 (4th Cir. 1998) (holding that plaintiff did not meet burden of establishing that defendant's "alleged discriminatory practices prevented him from applying for the [new] position"). The analysis in Hackney v. Perry, No. 97-2055, 1998 WL 801490 (4th Cir. 1998), is instructive. In that case, the Defense Logistics Agency cancelled a position announcement to which plaintiff applied; the Agency instead decided to fill the position by the lateral transfer of another Agency employee. Id. at *1. The plaintiff in Hackney subsequently brought an age discrimination claim on the basis that the position to which he applied was filled by someone younger than forty (40) years old. The district court adopted the magistrate judge's report and recommendation granting summary judgment to the defendant because plaintiff failed to establish a prima facie age discrimination case. The Fourth Circuit upheld this ruling on appeal. The Fourth Circuit reasoned that plaintiff failed to show that his application was "rejected" because "[t]he undisputed evidence show[ed] that the announcement was canceled and that competitive selection was not undertaken in filling the position." Id. at *2. The Fourth Circuit relied on an affidavit from a personnel management specialist with the Agency stating that "the announcement was canceled and the vacant position was filled, in conformity with established Agency policy, by the lateral transfer of Connett." Id. Consequently, the court held that "Hackney's application was not considered, and thus, he was not rejected within the meaning of McDonnell Douglas."
The same logic applies to these facts. Plaintiff's application - along with the twenty-two other applications for Vacancy 121 - was not considered because the vacancy was canceled. Thus, much like the plaintiff in Hackney, Dr. Agelli was not rejected within the meaning of McDonnell Douglas. Plaintiff questions Dr. Schully's qualifications for the Knowledge Integration Team Lead position in Vacancy 615 - although Plaintiff does not dispute that she did not apply for this position - but Dr. Schully's qualifications for the position are irrelevant to Plaintiff's burden of establishing a prima facie case of age discrimination. See id. at *2 ("[a]lthough on appeal Hackney disputes the qualifications of Connett . . . [w]hether Connett was qualified for the position is irrelevant."). Because Plaintiff has not pled a prima facie case, summary judgment is appropriate on Plaintiff's ADEA claim.
Even if Plaintiff's prima facie case of discrimination related to her non-selection for Vacancy 121 were to be presumed, summary judgment would still be granted because Defendant has established legitimate, non-discrimination reasons for Plaintiff's non-selection for the Knowledge Management Team Lead position advertised in Vacancy 121 at a GS-15 pay grade. As Defendant asserts, NIH determined that rescinding the FTE for the EGRP GS-15 position and moving it to SRP was the best course of action as a matter of resource allocation. (ECF No 8-1, at 16). Specifically, Ms. Vandor attests that "[t]he Knowledge Management Unit Lead Position in EGRP was never filled because there is no FTE available for that position, and therefore, no vacancy to fill." (ECF No. 35-3 ¶ 3). She further avers that "[t]he GS-15 Associate Director position associated with the FTE that was reallocated from EGRP to SRP was filled on November 3, 2013, by Dr. Lynne Schumacher-Penberthy." (Id. ¶ 5). As the Fourth Circuit reasoned in Hux v. City of Newport News, Va., "[d]uty-bound though we are to examine employment decisions for unlawful discrimination, we are not cloaked with the authority to strip employers of their basic business responsibilities." 451 F.3d 311, 315 (4th Cir. 2006). Importantly, when the employer articulates a legitimate, non-discriminatory basis for its action, this court does not "decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the [adverse employment action]." Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000). Plaintiff argues that "[a] reasonable person would think, as Plaintiff does, that Dr. Schully is there to stay, that she will soon transition into a GS-15 position most likely by officially filling the FTE-slot she had been filling unofficially for the last two years, that is, the very same, FTE-slot of announcement NIH-NCI-DH-11-507121." (ECF No. 25, at 31-32). Plaintiff's conjectures are insufficient to defeat the Secretary's legitimate, non-discriminatory reasons that satisfy Defendant's burden of production here. Further undercutting Plaintiff's argument is Ms. Vandor's declaration that "[n]o additional GS-15 FTEs have been allocated to EGRP since the FTE [in Vacancy 121] was reallocated to SRP." (ECF No. 35-3 ¶ 6).
Notably, Defendant points out that Dr. Schumacher-Penberthy is fifty-nine (59) years old and only two years younger than Plaintiff. (ECF No. 35, at 11).
Plaintiff attempts to show that Defendant's reasons are pretextual. To establish pretext, a plaintiff must present evidence to allow a reasonable juror to find that (1) the legitimate, nondiscriminatory reasons were "unworthy of credence" and (2) unlawful discrimination was the actual motive for the decision. See Reeves, 530 U.S. at 143, 147. Plaintiff may prove that the defendant's proffered reasons were unworthy of credence "by showing that [they] had no basis in fact, [they] did not in fact motivate the discharge or, if they were factors in the decision, they were jointly insufficient to motivate the discharge." Maddox v. Univ. of Tenn., 62 F.3d 843, 848 (6th Cir. 1995). Dr. Agelli's self-serving statement that "[w]ith discovery, Plaintiff will prove  that the cancellation of vacancy announcement NIH-NCI-DH-11-507121 was a pretext of intentional age discrimination and also that every reason the Defendant has proffered so far is pretext" is insufficient to establish pretext. (ECF No. 25, at 40); Evans v. Tech.
Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996) ("[i]t is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff."). Plaintiff also suggests that Dr. Schully was preselected for the position advertised in Vacancy 121, even if at a lower grade level, and is functionally performing the same duties in the Knowledge Integration Team Lead role as the Knowledge Management Team Lead position that was never filled. This argument is similarly unavailing. "The argument that a supervisor may have preselected an employee for a promotion 'is not sufficient evidence for jurors reasonably to conclude' that the defendants' explanation for hiring [a selectee] was pretext." Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 271 (4th Cir. 2005) (citation and internal quotation marks omitted). In any event, Dr. Schully did not receive a promotion over Dr. Agelli, as Dr. Schully "was already a GS-601-14 Health Science Administrator in EGRP, and her FTE moved with her to the Knowledge Integration Team Lead position." (ECF No. 8-3 ¶ 7). Furthermore, as explained above, the position to which Dr. Agelli applied and which was never filled was for a GS-15 pay grade. Additionally, Dr. Khoury declares that he has never met Dr. Agelli and "to the best of [his] knowledge, prior to learning about the  complaint, [he] do[es] not recall having ever discussed Dr. Agelli with anyone at NCI." (ECF No. 8-4 ¶ 10). Ms. Vandor also declares that she has "never seen the list of applicants who applied under Vacancy Announcement NIH-NCI-DH-11-507121. Prior to learning about the  complaint, [she] was not aware that Dr. Maria Agelli had applied for the position advertised under Vacancy Announcement NIH-NCI-DH-11-507121." (ECF No. 8-3 ¶ 8); Stoyanov v. Mabus, Civil Action No. DKC 071953, 2013 WL 1104978, at *8 (D.Md. Mar. 15, 2013) ("many of the officials who selected the candidates who ultimately filled these positions declared that they never met [p]laintiff and, at the time of selection, were unaware of, or never discussed, [p]laintiff's age, national original, or prior EEO activity."). Accordingly, the record contradicts Plaintiff's broad assertions, which fail to show that Defendant's preferred legitimate nondiscriminatory reasons for its hiring decisions are pretextual.
Plaintiff argues that Defendant's motion is premature as there has been no discovery in the case and she "should not have to respond to Defendant's motion for summary judgment without the opportunity of examining documents and records that are in the exclusive possession of the HHS/NCI and of obtaining depositions." (ECF No. 25, at 27). Dr. Agelli submits a Rule 56(d) affidavit declaring that "each of the Rule 56(d) discovery requests for production of documents and depositions is targeted, relevant and essential for establishing and[/]or clarifying the facts; thus, likely to assist  the Plaintiff, in unmasking Defendant's pretext and establishing genuine issues of material fact." (ECF No. 32-2 ¶ 16). Defendant, in turn, argues that "[t]he discovery requested by Plaintiff in this case reveals . . . her intent to embark on an unbridled fishing expedition in search of unknown evidence of pretext." (ECF No. 35, at 21) (emphasis in original). Defendant further challenges Plaintiff's failure to explain why she has been unable to obtain opposition evidence, including affidavits from witnesses. Defendant also states that "[m]ore fundamentally, in light of the evidence in the record thus far, Plaintiff's affidavit does not and could not specify how the requested discovery would create a genuine issue of material fact sufficient to defeat summary judgment in this case." (Id. at 22). Defendant's arguments are persuasive.
Plaintiff is correct in noting that generally, "summary judgment is appropriate only after adequate time for discovery." Evans, 80 F.3d at 961. But to render this general rule applicable, the nonmovant must clearly demonstrate the need for discovery pursuant to Rule 56(d), which allows the court to deny summary judgment or delay ruling on the motion until discovery has occurred if the "nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition." Fed.R.Civ.P. 56(d). Courts interpreting this rule have consistently held that a Rule 56(d) request may be denied if "the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment." Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (internal quotation marks omitted). In other words, a nonmovant must provide "a reasonable basis to suggest that [the requested] discovery would reveal triable issues of fact" in order for such a request to be granted. McWay v. LaHood, 269 F.R.D. 35, 38 (D.D.C. 2010); Richard v. Leavitt, 235 F.App'x 167, 167 (4th Cir. 2007) (affirming the district court's denial of a Rule 56(d) request when the plaintiff failed to provide a basis for believing that the information sought actually existed). Put simply, Rule 56(d) does not authorize "fishing expedition[s]." Morrow v. Farrell, 187 F.Supp.2d 548, 551 (D.Md. 2002), aff'd, 50 F.App'x 179 (4th Cir. 2002); Wright v. Eastman Kodak Co., 550 F.Supp.2d 371, 382 (W.D.N.Y. 2008) ("[w]hile a Rule 56[(d)] discovery request may be granted to allow a plaintiff to 'fill material evidentiary gaps,' it may not be premised solely on speculation as to evidence which might be discovered[.]"), aff'd 328 F.App'x 738 (2d Cir. 2009).
The 2009 Amendments to the Federal Rules of Civil Procedure transferred the language of former Rule 56(f) to Rule 56(d).
Plaintiff's Rule 56(d) affidavit seeks several forms of discovery. (See ECF No. 32-2). First, Plaintiff contends that she is entitled to discovery on the following items: (1) the position of Medical Officer identified in Vacancy 121; (2) the associated full-time employment slot; (3) Vacancy Announcement 121; (4) selection and pre-selection; (5) applicants for the position; (6) Knowledge Management Unit; (7) Dr. Robert Croyle, Dr. Deborah Winn, Dr. Muin Khoury, Ms. Stacey Vandor; (8) Position of Team Lead, Knowledge Integration, GS-601-14; (9) announcement, publication, pre-selection and selection; (10) applicants for this position; (11) Dr. Schully and the position of Lead, Knowledge Integration; (12) Knowledge-related teams other than Knowledge Integration Team; (13) Knowledge Integration Team staff, organization, duties; (14) EEO records of DCCPS management; (15) DCCPA full-time professional staff; (16) NCI job assignments to GS-601-14/15 and GS-602-14/15 employees; (17) NCI non-supervisory GS-602-15 (Medical Officers); (18) NCI Office of Management; (19) Surveillance Research Program (SRP); and (20) EGRP organization and staff. (ECF No. 32-2, at 2-3). As an initial matter, Plaintiff already has access to many of the documents she seeks (e.g., applicants for Vacancies 121 and 615 (see ECF Nos. 8-5 & 8-8), organizational chart, the Knowledge Integration Team Lead position, etc.); see, e.g., Boyd v. Guiterrez, 214 F.App'x 322, 323 (4th Cir. 2007) (affirming district court's denial of a Rule 56(d) request where "numerous documents and affidavits submitted during [the plaintiff's] EEOC proceedings were already available to [him]"). Furthermore, Plaintiff's discovery requests are overly broad and encompass documents outside the scope of her complaint (e.g., EEO records of DCCPS management). In addition to the above discovery, Plaintiff seeks forty-four (44) categories of documents and identifies thirteen (13) witnesses she plans to depose, including Ms. Vandor, Dr. Khoury, Dr. Schully, and other employees in EGRP. (See ECF No. 32-2, at 3-10). Despite the apparent specificity of Plaintiff's affidavit, the crux of Dr. Agelli's argument is that she is entitled to discovery regarding aspects of the selection decisions for Vacancies 121 and 615, information regarding Dr. Schully's qualifications and career development, and documents concerning the general hiring practices and decisions in NCI. Plaintiff's Rule 56(d) affidavit reveals that she hopes to locate some evidence probative of pretext and believes that she "should be allowed to find out if [she] has a claim, rather than that [she] has a claim for which [she] needs . . . discovery." Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994).
Accordingly, a thorough review of Plaintiff's opposition papers, supporting exhibits, and her Rule 56(d) affidavit reveals no plausible basis for believing that any evidence of unlawful discrimination would turn up during discovery. Defendant has already provided a wealth of information regarding the non-selection decision in question and Vacancy 615, including vacancy announcements; the list of applicants; sworn declarations from selecting officials; organizational charts and staff lists; and resource allocation spreadsheets for EGRP and SRP. (See ECF Nos. 8 & 35). As discussed, nothing in these materials even hints of unlawful discrimination, nor suggests that the discovery Plaintiff seeks would create a genuine issue of material fact. Plaintiff's own assertion that "the evidence available now is already sufficient to support Plaintiff's assertions" bolsters this point. (ECF No. 25, at 22). Likewise, Plaintiff's purported need for depositions amounts to a "purely speculative hope" that Dr. Khoury and Ms. Vandor will recant their sworn declarations and other employees will reveal "a long-running" plan not to promote Plaintiff because of her age. See, e.g., Hamilton v. Geithner, No. 1:08cv1112 (JCC), 2009 WL 2240358, at *2 (E.D.Va. July 23, 2009) (declining to reconsider denial of Rule 56(d) request where "a lengthy EEO investigation created an extensive record in which the recollections of witnesses were set down close in time to when the alleged discriminatory events occurred"). Because permitting Plaintiff to engage in discovery in such circumstances would be akin to granting her a license to conduct a fishing expedition, her Rule 56(d) request will be denied.
Plaintiff seeks leave to file a twenty-three page surreply. (ECF No. 36). "Unless otherwise ordered by the Court, surreply memoranda are not permitted to be filed." Local Rule 105.2(a). Although a district court has discretion to allow a surreply, surreplies are generally disfavored. Chubb & Son v. C.C. Complete Servs., LLC, 919 F.Supp.2d 666, 679 (D.Md. 2013). A surreply may be permitted "when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply." Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003) (citation omitted). By contrast, "[a] motion for leave to file a surreply may be denied when the matter addressed in the reply is not new." Marshall v. Capital View Mut. Homes, No. RWT-12-3109, 2013 WL 3353752, at *3 (D.Md. July 2, 2013).
Here, to support her request, Plaintiff objects to Defendant's arguments in the reply brief, the submission of revised declarations from Dr. Khoury and Ms. Vandor, and what she characterized as "new evidence." Plaintiff also asserts that Defendant misinterpreted her complaint and the arguments advanced in the opposition. Plaintiff's motion will be denied. Dr. Agelli's arguments in this motion largely do not address matters raised for the first time in Defendant's reply, but seek to reopen briefing regarding EGRP's alleged discrimination against her on the basis of age and selection of Dr. Schully for a position which is "de facto" the position for which Dr. Agelli applied. Plaintiff again attempts to show that Defendant's explanations are pretextual. Moreover, Defendant does not raise new arguments or legal theories in its reply brief, but merely responds to Plaintiff's arguments. See, e.g., Fink v. Richmond, Civil Action No. DKC 2007-0714, 2008 WL 9364730, at *15 (D.Md. Mar. 24, 2008) (denying motion for leave to file a surreply, where plaintiff claimed that defendants presented new arguments); Yeibyo v. E-Park of DC, Inc., Civil Action No. DKC 2007-1919, 2008 WL 182502 (D.Md. Jan. 18, 2008) (same). Accordingly, a surreply is unnecessary.
For the foregoing reasons, the motion to dismiss or for summary judgment filed by Defendant will be granted. Plaintiff's motion to deny Defendant's motion, (ECF No. 32), will be denied as moot. Plaintiff's motion for leave to file a surreply, (ECF No. 36), will be denied. A separate order will follow.


53-110. Commissioners and employees; qualifications; employment by licensee authorized; restrictions.
(1) No person shall be appointed as a commissioner, the executive director of the commission, or an employee of the commission who is not a citizen of the United States and who has not resided within the State of Nebraska successively for two years next preceding the date of his or her appointment.
(2) No person (a) convicted of or who has pleaded guilty to a felony or any violation of any federal or state law concerning the manufacture or sale of alcoholic liquor prior or subsequent to the passage of the Nebraska Liquor Control Act, (b) who has paid a fine or penalty in settlement of any prosecution against him or her for any violation of such laws, or (c) who has forfeited his or her bond to appear in court to answer charges for any such violation shall be appointed commissioner.
(3)(a) Except as otherwise provided in subdivision (b) of this subsection, no commissioner or employee of the commission may, directly or indirectly, individually, as a member of a partnership, as a member of a limited liability company, or as a shareholder of a corporation, have any interest whatsoever in the manufacture, sale, or distribution of alcoholic liquor, receive any compensation or profit from such manufacture, sale, or distribution, or have any interest whatsoever in the purchases or sales made by the persons authorized by the act to purchase or to sell alcoholic liquor.
(b) With the written approval of the executive director, an employee of the commission, other than the executive director or a division manager, may accept part-time or seasonal employment with a person licensed or regulated by the commission. No such employment shall be approved if the licensee receives more than fifty percent of the licensee's gross revenue from the sale or dispensing of alcoholic liquor.
(4) This section shall not prevent any commissioner, the executive director, or any employee from purchasing and keeping in his or her possession for the use of himself, herself, or members of his or her family or guests any alcoholic liquor which may be purchased or kept by any person pursuant to the act.
Source:Laws 1935, c. 116, § 11, p. 380; C.S.Supp.,1941, § 53-311; R.S.1943, § 53-110; Laws 1989, LB 780, § 3; Laws 1991, LB 344, § 7; Laws 1993, LB 121, § 318; Laws 2011, LB407, § 2.


MATHEWS v. Wells Fargo Bank N.A., Defendant-Appellee.
Marquita MATHEWS, Plaintiff-Appellant, v. WELLS FARGO, Defendant, Wells Fargo Bank N.A., Defendant-Appellee.
Marquita Mathews appeals pro se the summary judgment in favor of her former employer, Wells Fargo Bank N.A., and against her amended complaint that the bank accelerated her date of resignation to retaliate for her complaint that supervisors had harassed her because of her race and gender, in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e-2, 2000e-3. Mathews also complained about race and gender discrimination, a hostile work environment, defamation, failure to promote, unequal terms and conditions of employment, and wrongful termination, but she has abandoned any challenge that she could have made to the summary judgment against those claims. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). Mathews argues that she established a prima facie case of retaliation and that the district court erred in its evidentiary rulings and by denying her motion for summary judgment. We affirm.
We review de novo a summary judgment. Battle v. Bd. of Regents for the State of Ga., 468 F.3d 755, 759 (11th Cir. 2006). Summary judgment is appropriate when there exists no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Title VII prohibits an employer from retaliating against an employee who has opposed an unlawful employment practice. 42 U.S.C. § 2000e-3(a). If a plaintiff establishes a prima facie case of retaliation, a rebuttable presumption arises that the employer has acted unlawfully. See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). The employer can rebut the presumption by providing a legitimate nondiscriminatory reason for its action. Id. “If it does so, the burden shifts back to the plaintiff to produce evidence that the employer’s proffered reasons are a pretext for discrimination.” Id.
Even if we were to presume that Mathews established a prima facie case of retaliation, she failed to prove that the reason Wells Fargo gave for accelerating her resignation was pretextual. Mathews alleged that Wells Fargo accelerated her resignation in retaliation for complaining that supervisors closely monitored her and blamed her for three shortages in her cash drawer because she was a black woman. But Wells Fargo established that it accelerated Mathews’ resignation from 14 days to 3 days because of her sequential cash shortages and poor performance. See id. at 1264. Mathews’ supervisor, Keonte Keith, testified that in May 2015, Mathews had shortages in her cash drawer totaling $960.01 and noticed that she was taking longer than expected breaks on those dates, so he asked Arlene McCants, a service manager, to observe Mathews. And Mathews testified that, several months before shortages occurred in her cash drawer, she had received a notice to improve her performance and an informal warning for refusing her manager’s request to stay late to assist customers.
As the district court stated when evaluating Mathews’ claim of discrimination, she “failed to meet her burden” to take the “ ‘reason [proffered by Wells Fargo] head on and rebut it.’ Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000).” Mathews does not challenge the finding of the district court that she “only presented speculation to support” her “argu[ment] that Wells Fargo accepted her resignation earlier than she requested to prevent an investigation into her complaints of race and gender discrimination.” See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (quoting from Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931–32 (7th Cir. 1995), that an “unsupported speculation ․ does not meet a party’s burden of producing some defense to a summary judgment motion”). Mathews quotes two statements McCants made during a hearing held by the Department of Labor that a human resources representative decided to accelerate Mathews’ resignation and that Mathews reported having “some issues ․ with Mr. Keith” that McCants agreed to later “follow up with her,” but McCants’s statements do not establish that Wells Fargo accelerated Mathews’ resignation because of her race or gender.
Mathews argues about evidentiary errors related to her claim of race and gender discrimination, but we need not address those alleged errors because they would not affect the outcome of her claim. Mathews abandoned any challenge that she could have made to the summary judgment against her claim of discrimination “by failing to list or otherwise state it as an issue on appeal.” Hamilton, 680 F.3d at 1318. Mathews does not dispute that she failed to establish a prima facie case of discrimination. Mathews also fails to explain how any of the alleged evidentiary errors merit a reversal.
The district court did not err by denying Mathews’ motion for summary judgment despite determining that her evidence could be admissible at trial. The district court ruled that Mathews’ evidence was insufficient “to support her own motion and to demonstrate that she is entitled to summary judgment on any of her claims,” and Mathews does not challenge that ruling. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“While we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned․”). Mathews fails even to explain how her evidence warranted a summary judgment in her favor.
We AFFIRM the summary judgment in favor of Wells Fargo.


In a decision yesterday, the Seventh Circuit clarified what is required for a party to be considered a "prevailing party" in a copyright case, and therefore be eligible for an award of attorneys' fees under § 505. In this case, the plaintiff asked for a voluntary dismissal without prejudice under Rule 41(a)(2), as the case had been pending for over a year. The district court dismissed the case with prejudice, but held that the dismissal did not make the defendant a prevailing party, and therefore declined to award fees under § 505.
The Seventh Circuit reversed, holding that because the dismissal with prejudice was a favorable judgment that materially altered the legal relationship of the parties. As a result, the district court should have considered whether fees were appropriate. The court took the next step also, and found that an award of fees was appropriate in this case, given the facts and the relationship between the parties, and remanded with instructions to award appropriate fees for both the original case and the appeal.
The plaintiffs, Riviera, and defendants, Midwest Electronic Specialties, in this case both write and distribute computer software, specifically computer games. The plaintiffs sued the defendants for copyright infringement. However, after the suit had been pending for more than a year, the plaintiffs sought a voluntary dismissal without prejudice under Rule 41(a)(2), as it had been unable to muster evidence to prove its claim but hoped to acquire better evidence in the future. The district court instead dismissed the case with prejudice. The defendants then moved for attorney fees under § 505, asserting that the dismissal with prejudice made them "prevailing parties" entitled to fees under the statute. The district court declined to award fees because the court "did not in any way pass on the merits of the litigation," and there was "no evidence of lack of merit" to the plaintiff's claims, and as a result the court held the defendants were not entitled to "prevailing party" status under § 505. The defendants appealed.
The Seventh Circuit reversed. The court noted that to be considered a "prevailing party," all that matters is whether there was a "material alteration of the legal relationship of the parties." Here, because of the dismissal with prejudice prevents the plaintiffs from refiling its claims, there was such an alteration, and therefore the defendants were entitled to prevailing party status under § 505.
In the event that either party hereto believes that its rights as to the Riviera [intellectual property] Rights or Enhancements have been violated by [Midwest], then such source code and programs shall be provided to a mutually agreeable, independent software expert who shall inspect and review such applicable source code and programs and determine such questions. The parties agree to be bound by the findings of the independent software expert.
Here, the plaintiffs filed suit without ever following this provision of their earlier agreement. As a result, the court stated that the plaintiffs "forced [the defendants] to bear the very expenses that the parties had agreed to avoid. The party responsible for creating excessive legal costs must bear them itself in the end." Accordingly, the court instructed the district court on remand to award fees to the defendants, including fees associated with the appeal.
To read the full decision in Riviera Distribs., Inc. v. Jones, click here.


Before KING, Chief Judge, GARWOOD and DeMOSS, Circuit Judges.
After the district court granted summary judgment in favor of Defendants Raymond McNeil, Frank Johnson, and C.M. Lensing in Plaintiff Cleanard J. Johnson's pro se civil rights lawsuit, Defendants sought to garnish costs from Plaintiff's prison trust account pursuant to 28 U.S.C. § 1915(f) (2) (B). The magistrate judge denied their motion, and the district court affirmed on appeal. Defendants now seek review of that decision before this court. Because the clear language of the statute allows for and does not prohibit Defendants' request, we vacate and remand.
Plaintiff, a Louisiana prisoner, brought suit under 42 U.S.C. § 1983 for injuries sustained while he was incarcerated at Hunt Correctional Center ("HCC") in Louisiana and was allowed to proceed in forma pauperis ("IFP"). He sued Defendants, who were all HCC personnel, alleging that he was exposed to mace when McNeil sprayed another inmate in a nearby cell. Upon recommendation by a magistrate judge, the district court granted Defendants' unopposed motion for summary judgment. Plaintiff did not appeal that ruling.
Subsequently, Defendants moved to tax costs and were awarded $24. They then asked for an order to garnish Plaintiff's prison trust account pursuant to 28 U.S.C. § 1915(f) (2) (B). The magistrate denied Defendants' motion, concluding that § 1915(f) (2) (B) only provides the court, and not prevailing parties, with a mechanism for collection of costs. In a one-sentence decision, the district court affirmed the magistrate's order. This appeal followed.
Section 1915 pertains to IFP proceedings. Under subsection (f) (1) of that statute, " [j]udgment may be rendered for costs at the conclusion of the suit or action as in other proceedings . . . ." "If the judgment against a prisoner includes the payment of costs under this subsection, the prisoner shall be required to pay the full amount of the costs ordered." 28 U.S.C. § 1915(f) (2) (A). And a "prisoner shall be required to make payments for costs under this subsection in the same manner as is provided for filing fees under subsection (a) (2)." 28 U.S.C. § 1915(f) (2) (B).
After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.
In its decision, the magistrate judge correctly observed the typographical error in subsection (f) (2) (B), but nonetheless found that Defendants could not utilize the payment method outlined in subsection (b) (2) to recover their costs. Reading subsection (b) (2) in conjunction with subsection (b) (1),2 the magistrate judge concluded that only the costs of the court could be paid off via the method stated in subsection (b) (2). He inferred that "Congress enacted these provisions to provide the court with a mechanism to collect its fees and costs, which have historically gone uncollected," while prevailing parties have always had a state law mechanism through which to collect costs taxed in their favor.
Defendants counter that the magistrate judge erred in ignoring the clear wording of subsection (f) and in creating limitations that are nowhere in the statute. They allege that § 1915 does not restrict the term "costs" to costs owed to the court. To support their contention, Defendants allude to the fact that subsection (f) (1) allows a prevailing party to have "costs" taxed in its favor. And they allude to the fact that subsection (f) (2) (A) specifically makes a prisoner liable for the full amount of the "costs" taxed. In light of these facts, Defendants wonder how the term "costs" in subsection (f) (2) (B) can be so different than as it is used in the other two subsections.
Furthermore, Defendants argue that the fact that they may get their costs via a state procedure is of no significance since even the court may utilize the state system to collect costs taxed in its favor. They maintain that through the PLRA, Congress created a simpler system by which costs may be collected from prisoners and that both the courts and prevailing parties should be able to benefit from that system. In addition, Defendants assert that allowing prevailing parties to collect via subsection (b) (2) better effectuates the purpose ofthe PLRA to deter "frivolous prisoner litigation by instituting economic costs for prisoners wishing to file suits." Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 464 (5th Cir. 1998). They contend that a simplified system of collecting costs more effectively exacts the economic costs that ought to be on the minds of litigating prisoners.
We have never addressed the present issue on appeal, and very few courts have even remotely touched upon it. The three circuits that have discussed § 1915(f) (2) (B) have all, in dicta, implied that the same filing fee payment method stated in subsection (b) (2) may be utilized to pay any costs assessed against an IFP prisoner. See Feliciano v. Selsky, 205 F.3d 568, 572 (2d Cir. 2000); Talley-Bey v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Tucker v. Branker, 142 F.3d 1294, 1298 (D.C. Cir. 1998).
Utilizing the canons of statutory interpretation, we likewise conclude that prevailing parties may recover costs via the method prescribed in subsection (f) (2) (B), i.e., subsection (b) (2). "In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished." Estate of Cowart v. Nicklos Drilling, Co., 112 S. Ct. 2589, 2594 (1992) (citing Demarest v. Manspeaker, 111 S. Ct. 599, 603 (1991)). Section 1915(f) (2) (B) clearly indicates that a "prisoner shall be required to make payments for costs under this subsection in the same manner as is provided for filing fees under subsection [(b) (2)]." Nowhere in the rest of the statute does it define "costs" as costs to the court. Indeed, the same language in a single statutory provision cannot have two different meanings, see Davis v. Davis (In re Davis), 170 F.3d 475, 480 (5th Cir. 1999) (citing Sullivan v. Stroop, 496 U.S. 110 S. Ct. 2499, 2504 (1990)), cert. denied, ___ U.S. ___,120 S. Ct. 67 (1999), and "costs" throughout the rest of § 1915 has a general meaning, without any apparent limitations. Thus, the definite import from subsection (f) (2) (B) is that prevailing parties may recover their costs through the method described in subsection (b) (2).
And although the magistrate judge did not solely focus on subsection (b) (2), but read that subsection together with subsection (b) (1) to conclude that recovery of costs was limited to the court, that determination read too little into those subsections and must also fail. Admittedly, subsections (b) (1) and (b) (2) refer to collection of filing fees by the court, and not any other entity. But that does not mean that the 20 percent method of paying fees stated in those provisions is limited to just paying fees or costs to the court or that the method could not be utilized to pay off costs to parties other than the court. Subsection (b) (1) only refers to the court's ability to collect filing fees because that entity is the normal authority that collects such costs. It is not inconceivable to think that when subsection (f) (2) (B) referred to the 20 percent method of payment, that subsection was referring to the form of payment and not necessarily the fact that under subsection (b) (1) the court was the only one recovering fees. That is, the reference in subsection (f) (2) (B) was to the method of deducting from the prisoner's trust account 20 percent of the preceding month's income, rather than the court's ability to assess and collect fees for itself.3 Thus, we conclude that the term "costs" in § 1915(f) (2) (B) is not limited to costs to the court, but may also include costs awarded to prevailing parties, and that those parties may utilize the method of payment stated in subsection (b) (2) to collect their awarded costs.
Accordingly, in this Circuit, when costs, either at the district or appellate level, are awarded to a prevailing party against anIFP prisoner, that prisoner shall be required to make payment pursuant to the manner outlined in subsection (b) (2). In the case of appellate costs, a prevailing party may be awarded costs after a judgment for costs has been rendered in its favor4 and it files a bill of costs with the clerk of this court within the time prescribed by Federal Rule of Appellate Procedure 39(d).5 Upon the clerk's approval of the bill of costs and issuance of the mandate, the clerk shall forward a copy of this opinion and the approved bill of costs to the custodial institution for collection pursuant to subsection (b) (2). At the district court level, a prevailing party may be awarded costs after a judgment for costs has been rendered in its favor and it complies with the necessary procedures and filings as required by the Federal Rules of Civil Procedure and each respective district court's Local Rules.
For the foregoing reasons, the order of the district court is vacated and the case is remanded for further proceedings consistent with this opinion.
Defendants do not challenge this finding. Other courts have also ruled that the reference to subsection (a) (2) is a mistake. See, e.g., Talley-Bey v. Knebl, 168 F.3d 884, 886-87 (6th Cir. 1999).
In any case, subsection (f) (2) (B) as interpreted by the magistrate judge and other circuit courts only refers to subsection (b) (2), and not subsection (b) (1).
(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.
(1) A party who wants costs taxed must - within 14 days after entry of judgment - file with the circuit clerk, with proof of service, an itemized and verified bill of costs.
(2) Objections must be filed within 10 days after service of the bill of costs, unless the court extends the time.
(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk - upon the circuit clerk's request - add the statement of costs, or any amendment of it, to the mandate.
The institutions might also find it advisable upon receiving an award of costs to notify the prevailing party that payments likely will be small, sporadic, and paid over a long period of time.


Our client, age 26, was arrested in Hermosa Beach after police were dispatched to the Chelsea Pub in downtown Hermosa Beach upon a report of a man antagonizing passer bys and standing in the middle of the street, blocking traffic.
Police arrived and did not find our client doing any of these things. However, they found our client sitting on the curb, straddling a puddle of vomit. When asked who vomited, our client told police it was his.
Police began speaking with him and allegedly, our client could not tell the police what city he was in, could not find his cell phone and could not tell the police how he was going to get home. At this point, police arrested our client for public intoxication and took him to the Hermosa Beach Police Department for an alleged violation of Penal Code § 647(f), public intoxication.
Under Penal Code § 647(f), it is illegal for someone to be so intoxicated that he or she does one of two things. First, the person violates § 647(f) by obstructing those on a public thoroughfare, such as a road, a sidewalk, public stairs, etc. Second, the person is so intoxicated that he or she is unable to care for his own well being.
Under Penal Code § 836(a)(1), an arrest for a misdemeanor must be based upon the officer observing the violation, subject to many exceptions. Here, none of the exceptions applied. The officers never observed our client obstructing traffic or heckling those passing by. However, they allegedly saw our client sitting down and being quite drunk and allegedly unable to care for his own well-being.
The client called up Greg Hill & Associates about his arrest. He explained that he had two prior alcohol related offenses, one a DUI in 2010 in San Bernardino, and another conviction from Texas involving being a nuisance. He said he could not have a third such offense or he would lose his job.
Greg explained how he would attempt to negotiate the case to a resolution for violating Penal Code § 415, disturbing the peace, or trespassing, Penal Code § 602(m). Greg further explained that if the prosecutor was aware of both of his prior convictions, he may not be able to get such a favorable disposition.
At the arraignment, Greg appeared in the Torrance Superior Court and reviewed the file materials. The Redondo Beach City Prosecutor handling the case for the City of Hermosa Beach was aware of our client’s prior DUI, but had not read the client’s criminal history thoroughly. She was unaware of our client’s case from Texas, which was described in the materials she had.
Greg became aware of this when he began discussing the case facts with her. He therefore suggested a resolution to disturbing the peace, which the prosecution rebuffed as too lenient because our client was quite drunk (at least drunk enough to vomit in public). Greg thus suggested a plea bargain to trespassing, Penal Code § 602(m), which the prosecutor agreed to, quite fortunately.
The plea bargain did include thirty-six months of summary probation, as well as a $150 fee, plus penalties and assessments (about $515 total), and payment of the City of Hermosa Beach Booking Fee ($349).
The client was relieved to resolve the case without a conviction that suggested further alcohol use, which meant he would be able to keep his job. He was happy.
What Is Trespassing (Penal Code § 602)?


Wm. H. Field, for plaintiff in error.
David J. Dean, for defendant in error.
We are bound by the decision of the court of appeals of the state of New York adversely to the plaintiff in error, as to failure to comply with the state statute in relation to the method of procedure, form of assessment, oath of assessors, etc., in respect to which it may be further remarked that the attack in this case is in its nature collateral. Stanley v. Supervisors, 121 U. S. 535, 7 Sup. Ct. Rep. 1234; Supervisors v. Stanley, 105 U. S. 305. We proceed to examine, therefore, whether the assessment was invalid because the statute under which it was laid contravened the constitution or laws of the United States, and whether the proceedings authorized by chapter 230 of the Laws of 1843 operated to deprive the citizen of liberty or property without due process of law. Section 5219 of the Revised Statutes, title 62, 'National Banks,' reads as follows: 'Nothing herein shall prevent all the shares in any association from being included in the valuation of the personal property of the owner or holder or such shares, in assessing taxes imposed by authority of the state within which the association is located, but the legislature of each state may determine and direct the manner and place of taxing all the shares of national banking associations located within the state, subject only to the two restrictions that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state, and that the shares of any national banking association owned by nonresidents of any state shall be taxed in the eity or town where the bank is located, and not elsewhere. Nothing herein shall be construed to exempt the real property of associations from either state county, or municipal taxes, to the same extent, according to its value, as other real property is taxed.' CHAPTER 596 OF THE LAWS OF NEW YORK OF 1880 is entitled 'an Act to pRoviDe for the taxation of banks and of moneyed capital engaged in the business of banking, receiving deposits, or otherwise;' and its third section reads thus: 'The stockholders in every bank, banking association, or trust company, organized under the authority of this state, or of the United States, shall be assessed and taxed on the value of their shares of stock therein. Said shares shall be included in the valuation of the personal property of such stockholders in the assessment of taxes at the place, city, town, or ward where such bank, banking association, or trust company is located, and not elsewhere, whether the said stockholder reside in said place, city, town, or ward, or not; but in the assessment of said shares each stockholder shall be allowed all the deductions and exemptions allowed by law in assessing the value of other taxable personal property owned by individual citizens of this state, and the assessment or taxation shall not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individual citizens of this state. In making such assessment there shall also be deducted from the value of such shares such sum as is in the same proportion to such value as is the assessed value of the real estate of the bank, banking association, or trust company, and in which any portion of their capital is invested, in which said shares are held, to the whole amount of the capital stock of such bank, banking association, or trust company. Nothing herein contained shall be held or construed to exempt the real estate of banks, banking associations, or trust companies from either state, county, or municipal taxes; but the same shall be subject to state, county, municipal, and other taxation, to the same extent and rate, and in the same manner, according to its value, as other real estate is taxed.' 1 Laws N. Y. 1880, pp. 888, 889.
We have decided that so much of the capital of national and state banks as is in vested in United States securities cannot be subjected to state taxation, (People v. Commissioners, 2 Black, 620; Bank Tax Case, 2 Wall. 200,) but that shares of bank-stock may be taxed in the hands of their individual owners at their actual instead of their par value, (People v. Commissioners, 94 U. S. 415; Hepburn v. School Directors, 23 Wall. 480,) without regard to the fact that part or the whole of the capital of the corporation might be so invested, (Van Allen v. Assessors, 3 Wall. 573; Bradley v. People, 4 Wall. 459; People v. Commissioners, Id. 244,) and that, under acts permitting the deduction of debts from the value of all a person's taxable property, such deduction must be permitted from the value of such shares, (People v. Weaver, 100 U. S. 539, 546,) but that a statute is not void because it does not provide for a deduction, nor is the assessment void if deductions are not made, but voidable only, (Supervisors v. Stanley, 105 U. S. 305.) We have also held that individual instances of omission or undervaluation cannot be relied on to invalidate an assessment, (Supervisors v. Stanley, supra,) and that, because a state statute does not provide for the taxation of shares in corporations other than banks, it does not follow that the tax on moneyed capital invested in bank-shares is at a greater rate than that of the moneyed capital of individual citizens invested in other corporations, nor are the shareholders in national banks discriminated against because the taxation of such other corporations is arrived at under a separate system, (Bank v. New York, 121 U. S. 138, 7 Sup. Ct. Rep. 826.) In this last case the assessment was made in pursuance of section 312 of an act of the legislature of the state of New York passed July 1, 1882, entitled 'An act to revise the statutes of this state relating to banks, banking and trust companies.' which section is identical with section 3 of the act of 1880, except that trust companies are omitted in the act of 1882, and a provision in relation to notice is added at the end of the section. The court held as follows: 'The main purpose of congress in fixing limits to state taxation of investments in shares of national banks was to render it impossible for the state, in levying such a tax, to create and foster an unequal and unfriendly competition by favoring institutions or individuals carrying on a similar business, and operations and investments of like character. The term 'moneyed capital,' as used in Rev. St. § 5219, respecting state taxation of shares in national banks, embraces capital employed in national banks, and capital employed by individuals, when the object of their business is the making of profit by the use of their moneyed capital as money, as in banking, as that business is defined in the opinion of the court; but it does not include moneyed capital in the hands of a corporation, even if its business be such as to make its shares moneyed capital when in the hands of individuals, or if it invests its capital in securities payable in money. The mode of taxation adopted by the state of New York in reference to its corporations, excluding trust companies and savings banks, does not operate in such a way as to make the tax assessed upon shares of national banks at a greater rate than that imposed upon other moneyed capital in the hands of individual citizens.' The conclusions there announced, and the reasoning by which they are supported, are decisive in the disposition of the errors assigned on behalf of the plaintiff in error on the first branch of this case. The assessment was not void because in contravention of the constitution or laws of the United States.
But it is argued that chapter 230 of the Laws of New York of 1843 is unconstitutional as depriving the plaintiff in error of liberty and property without due process of law, and of the equal protection of the laws, in violation of the fourteenth amendment to the constitution of the United States. That amendment provides that no state 'shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' It is insisted that Palmer had no notice, and no opportunity to be heard, or to confront or cross-examine the witnesses for the taxing authorities, or to subpoena witnesses in his own behalf, and had not otherwise the protection afforded in a judicial trial upon the merits. The phrase 'due process of law' does not necessarily mean a judicial proceeding. 'The nation from whom we inherit the phrase 'due process of law," said this court, speaking by Mr. Justice MILLER, 'has never relied upon the courts of justice for the collection of her taxes, though she passed through a successful revolution in resistance to unlawful taxation.' McMillen v. Anderson, 95 U. S. 37, 41. The power to tax belongs exclusively to the legislative branch of the government, and when the law provides for a mode of confirming or contesting the charge imposed, with such notice to the person as is appropriate to the nature of the case, the assessment cannot be said to deprive the owner of his property without due process of law. Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. Rep. 921; Walston v. Nevin, 128 U. S. 578, 9 Sup. Ct. Rep. 192. The imposition of taxes is in its nature administrative, and not judicial, but assessors exercise quasi judicial powers in arriving at the value; and opportunity to be heard should be and is given under all just systems of taxation according to value. It is enough, however, if the law provides for a board of revision authorized to hear complaints respecting the justice of the assessment, and prescribes the time during which, and the place where, such complaints may be m de. Hagar v. Reclamation Dist., 111 U.S. 701, 710, 4 Sup. Ct. Rep. 663. The law of New York gave opportunity for objection before the tax commissioners, (Laws N. Y. 1859, c. 302, § 10, p. 681;) and the plaintiff in error appeared, and obtained a large deduction from the original valuation. It dissatisfied with the final action of the commissioners, he could have had that action reviewed on certiorari, (Laws N. Y. 1859, c. 302, § 20, p. 684; People v. Commissioners, 4 Wall. 244;) but he did not avail himself of this remedy. The proceeding here was purely an executive process to collect the tax after the liability of the party was finally fixed. Collection by distress and seizure of person is of very ancient date (Murray's Lessee v. Land Co., 18 How. 272;) and counsel for defendant in error cites many English statutes, commencing with the twelfth year of Henry VII., (chapter 13,) which in their essential features resemble the New York law upon the subject, one in 6 Henry VIII., (chapter 26,) being strikingly like it. 2 St. of the Realm, 644; 3 St. of the Realm, 156, 230, 516, 812; 4 St. of the Realm, 176, 334, 385, 744, 991, 1108, 1247; 5 St. of the Realm, 9, 700; 7 St. of the Realm, 567. Under the act of 1843, commitment is not resorted to until other means of collection have failed, and then only upon a showing of property possessed, not accessible to levy, but enabling the owner to pay if he chooses; this constituting such misconduct as justifies the order. That law had been in existence for more than 40 years at the time of this proceeding. We do not regard the collection in this way, founded on necessity, and so long recognized by the state of New York as to be justifiably resorted to under the circumstances detailed in the act, and operating alike on all persons and property similarly situated, as within the inhibitions of the fourteenth amendment. The judgment is affirmed.
BLATCHFORD, J., did not take any part in the decision of this case.
Affirming 6 N. E. Rep. 400.


text:
By a catena of decisions of the Hon’ble Apex Court, it is settled that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in Court against the spouse would, in the facts of the case, amount to causing mental cruelty to the other spouse.
“The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and accusations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination satisfy the requirement of law has also come to be firmly laid down by the Court.” Smt. Jayanti v. Dr. Om Prakash Pandey, 2017 (124) ALR 117.
“By fraud is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. The expression “fraud” involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage.
Fraud, as is well known, vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former, either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the misrepresentations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. DDA v. Bankmens Cooperative Group Housing Society Limited. (2017) 7 SCC 636.
The Court in K.V. Varkey v. STO, AIR 1956 TC 105 specifically declined to apply the popular or commercial meaning of “Tea” occurring in the sales tax statute holding that the context of the statute required that the technical meaning of “a product of plant life” required to be applied and therefore green tea leaves were tea even though they might not be tea as is known in the market. Parle Agro Private Ltd. v. Commissioner of Commercial Taxes, (2017) 7 SCC 540.
“When it is said that a matter is within the discretion of the court, it is to be exercised according to well established judicial principles, according to reason and fair play and not according to whim and caprice. “Discretion”, said Lord Mansfield in R v. Wilkes, (1558-1774) All ER Rep 570, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular (see Craies on Statute Law, 6th Edition, P. 273).
“According to Black’s Law Dictionary “judicial discretion” means the exercise of judgment by a Judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word “discretion” connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard and fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. (See 27Corpus Juris Secundum, P. 289) When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice and not according to private opinion: according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a Judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him.” State of Himachal Pradesh v. Nirmala Devi, (2017) 7 SCC 262.
The expression “sufficient cause” is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of the justice – that being the life –purpose for the existence of the institution of Courts.
“Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in view of the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case, or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously.” Smt. Jinnatul Nisa v. VIth ADJ, 2017 (123) ALR 431.
Corruption is antithesis of good governance and democratic politics. It is said, that when corruption is pervasive, it permeates every aspect of people’s lives. It can affect the air they breathe, the water they drink and the food they eat. Going further, some more terminology can also be given to different shades of corruption like, financial corruption, cultural corruption, moral corruption, idealogical corruption etc. The fact remains that from whatever angle it is looked into, the ultimate result borne out is that, and the real impact of corruption is, the poor suffers most, the poverty grows darker, and rich become more richer.
“When satisfaction sought in the performance of duties is for mutual personal gain, the misuse is usually termed as ‘corruption’”.
“The word ‘corruption’ has wide connotation and embraces almost all the spheres of our day-to-day life the world over. In a limited sense, it connotes allowing decisions and actions of a person to be influenced not by rights or wrongs of a cause, but by the prospects of monetary gains or other selfish considerations.” In the Matter of I.F.C.A.I. v. D.K. Agrawal F.C.A., 2017 (123) ALR 374.

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