text:
"For as in one body we have many members, and the members do not all have the same function, so we, though many, are one body in Christ, and individually members of one another" (Rom. 12:4-5).
We’re sometimes guilty of downplaying our Christian duties. It’s sometimes said, “You don’t need to go to church to be a Christian.” It’s true that we aren’t saved by going to church, but there’s a clear statement in Scripture that says Christians must meet together: “not neglecting to meet together” (Heb. 10:25). So church isn’t optional.
Watching a church service on TV or the internet is not an acceptable substitute for being a part of a church. The Christian life is meant to be lived alongside other Christians.
The apostle Paul writes that the church is like a body, and the members of the church are like parts of a body. How are church members like parts of a body?
1. As all the parts of a body are joined together to make one body, we all are joined together to make one church.
Paul writes, “We, though many, are one body” (v. 5). We are joined together as one body because we are “in Christ” (v. 5). Faith in Christ unites us not only to Christ, but to one another. But when any group of people get together—even Christians—disagreements happen. We naturally have self-centered hearts. Paul writes, “I say to everyone among you not to think of himself more highly than he ought to think” (v. 3). It’s not all about “me.” The cure for self-centeredness is to remember the gospel—that God saves us by his grace through the death of Christ.
When Paul writes about the Lord’s Supper in 1 Corinthians 11, he quotes Jesus saying, “This is my body” (1 Cor. 11:24). He then adds, “Anyone who eats and drinks without discerning the body eats and drinks judgment on himself” (1 Cor. 11:29). The “body” in v. 29 is often interpreted as the church (i.e., the body of Christ). When we partake of the Lord’s Supper we are to remember Christ’s death for us and we are also to remember that we are to act like Christ within the church (something the Corinthians weren’t doing).
When you start to look down on others, remember the gospel. When you become consumed with your own needs and problems, remember the gospel. When the concerns of others don’t matter to you, remember the gospel. When you are struggling to forgive, remember the gospel. When you start complaining about other people, remember the gospel.
2. As all the parts of a body have different abilities, we all have different spiritual gifts.
Paul adds, “Let us use [our gifts]” (v. 6). Paul said to Timothy, “Do not neglect the gift you have” (1 Tim. 4:14; cf. 2 Tim. 1:6). You might say, “But I don’t know what my gift is!” Just do something. Eventually you’ll discover your gift(s).
3. As a body has one head, we all have one head: Christ.
Many times there are power struggles within churches. This kind of behaviour is totally opposed to how we are to behave as Christians. The one who is our leader is Christ: “he is the head of the body, the church” (Col. 1:18). The church is Christ’s church. He’s the one in charge. We follow him. And how does he want us to interact with one another? With humility and love.
We might sometimes think that we’d be happier if we were on our own and not part of a church. But how could we use our gifts if we were on our own? And how could we benefit from others using their gifts?
“Let us rejoice and exult and give him the glory, for the marriage of the Lamb has come, and his Bride has made herself ready” (Rev. 19:7).
We call a wedding day “the big day,” and Canadians spend a lot of money to celebrate the big day.
The average cost of a Canadian wedding (including the honeymoon) is $31,110.
The average cost of a bridal gown is $1,716.
The average cost of being a bridesmaid is $1,695.
A destination wedding costs guests $1,500…and that doesn’t include the gift.
There’s a wedding day coming for the church: “The marriage of the Lamb has come” (Rev. 19:7). The “Lamb” is Christ, and “his Bride” is the church. Why is the church called the bride of Christ?
Sometimes a metaphor can be taken too far. The church is not like a bride in every way. We are called the bride of Christ for two reasons.
1. The church is loved by Christ.
Christ is “the Lamb who was slain” (Rev. 5:12). When a man loves a woman, he is willing to make sacrifices for her (e.g., time, comfort). The sacrifice that Christ made for the church was his life. The apostle Paul writes, “Husbands, love your wives, as Christ loved the church and gave himself up for her” (Eph. 5:25; cf. 5:2). There is no word that adequately describes the degree to which Christ loves his bride.
2. The church is to bring joy to Christ.
The church is to be like a beautiful bride. One of the greatest joys in a man’s life is seeing his beautiful bride on their wedding day. Revelation 19:8 says, “It was granted her to clothe herself with fine linen, bright and pure.” The fine line is interpreted for us: “the fine linen is the righteous deeds of the saints.” Paul states that Christ died for the church so “that he might sanctify her, having cleansed her by the washing of water with the word, so that he might present the church to himself in splendor, without spot or wrinkle or any such thing, that she might be holy and without blemish” (Eph. 5:26-27).  The beauty of the church is her righteousness and holiness.
Is Your Life Bringing Joy to Christ?
Paul writes to the church in Corinth, “I feel a divine jealousy for you, to present you as a pure virgin to Christ. But I am afraid that as the serpent deceived Eve by his cunning, your thoughts will be led astray from a sincere and pure devotion to Christ” (2 Cor. 11:2-3). We desire to have “a sincere and pure devotion to Christ,” but we are often more devoted to other people or things. Thankfully, Christ doesn’t abandon us. He will keep his marriage covenant. But how can we be unfaithful to the one who died for us?
 There is probably a link between Ephesians 5:27-27 and Ezekiel 16:1-14.
Do you not know that you are God’s temple and that God’s Spirit dwells in you? If anyone destroys God’s temple, God will destroy him. For God’s temple is holy, and you are that temple (1 Cor. 3:16-17).
God dwells in the midst of the church.
Have you ever walked alone in a forest at night? Everything is scarier when you’re alone in the dark. But as a church and as individual Christians, we are never alone. God is with us. Many times in the Bible God gives the promise of his presence to people who are afraid: “Fear not, for I am with you; be not dismayed, for I am your God; I will strengthen you, I will help you, I will uphold you with my righteous right hand” (Isa. 41:10).
God’s presence gives us courage in the face of danger.
Paul says that there are people in this world (sometimes even in the church!) who want to destroy us (“If anyone destroys God’s temple,” v. 17). How will God deal with a person who destroys a church? “God will destroy [i.e., eternally condemn] him” (v. 17).
There’s coming a day when God’s people will be with God forever in heaven and there will be no reason to ever be afraid: “Behold, the dwelling place of God is with man. He will dwell with them, and they will be his people, and God himself will be with them as their God” (Rev. 21:3). The heavenly city will not have a temple “for its temple is the Lord God the Almighty and the Lamb” (Rev. 21:22). Until then, we—the church—are God’s temple. God is with us. We can’t see him, but he dwells in our midst.
At our church youth group, we had a challenge called “The Walk of Fear.” It was scary because they had to do the walk alone in the dark, not knowing what would happen. We are not to do the walk of fear; we are to do the walk of faith. In every situation, God is with us to give us the courage and strength to face any danger.
“So then you are no longer strangers and aliens, but you are fellow citizens with the saints and members of the household of God” (Eph. 2:19).
In the NT, there are several metaphors for the church. A metaphor is “a word or phrase for one thing that is used to refer to another thing in order to show or suggest that they are similar”  (e.g., “The exam was a piece of cake.”) In this series, we’re going to examine four metaphors for the church. The church is (1) the family of God, (2) the temple of the Holy Spirit, (3) the bride of Christ, and (4) the body of Christ. In the apostle Paul’s letter to the Ephesians, all four of these church metaphors are found (see 2:18-22; 4:11-16; 5:25-27).
When we think of the church as a building, there is the danger that Christianity becomes compartmentalized. When Christianity is compartmentalized, we “look at Sunday as the totality of the Church experience.”  But wherever we go, we are the church. Wherever we go, we are to take the love of Christ with us.
Paul writes that the Ephesian believers (i.e., the church at Ephesus) are “members of the household of God” (2:19). Why is the church called the family of God?
God is our Father, and we are brothers and sisters.
God “predestined us for adoption as sons [and daughters] through Jesus Christ” (1:5).
“Through [Jesus] we both [Jews and Gentiles] have access in one Spirit to the Father” (2:18).
We are united because we all have “one God and Father” (4:6).
Paul refers to other believers as “brothers” (6:23).
Being called members of God’s family would give the Ephesians (mostly Gentiles) a sense of belonging.
Paul writes, “Be imitators of God, as beloved children” (5:1). We are God’s “beloved children.” The Greek word for “beloved” (agapetos) was often used to describe an only child. God has millions of sons and daughters, but he is able to extend his love to each of his children as if he or she was his only child.
As children of God, we are to imitate him.
How do we imitate our heavenly Father? We are to be people of love. If it were not for God’s love (i.e., the giving of Christ for us), we would not be his children.
In Paul’s first letter to Timothy, he writes, “If anyone does not provide for his relatives, and especially for members of his household, he has denied the faith and is worse than an unbeliever” (1 Tim. 5:8). We all know that we have the responsibility of caring for our family members. As Christians, we also have the responsibility of caring for our church family.
As brothers and sisters in God’s family, we have the responsibility to care for one another.
In his letter to the Galatians, Paul writes, “As we have opportunity, let us do good to everyone, and especially to those who are of the household of faith” (Gal. 6:10). How can we care for one another? There are many ways: (1) pray for one another (instead of gossiping); (2) offer to help others (e.g., a widow) with a need; (3) invite people into your home.
A church is not to be just a group of individuals; it’s a family. God is our Father, and we are brothers and sisters. When we leave our church building, we shouldn’t forget about each other until the following Sunday. We have a responsibility to care for one another throughout the week.
 In the NT, “church” can refer to either a local church or the universal church (i.e., all believers throughout the world).
“Enter by the narrow gate. For the gate is wide and the way is easy that leads to destruction, and those who enter by it are many. For the gate is narrow and the way is hard that leads to life, and those who find it are few” (vv. 13-14).
Sometimes it’s good to take the middle ground. For example, in politics it can be helpful to take the middle ground between two extreme positions. But when it comes to following Jesus, there is no middle ground.
Many people want to live in the middle ground (e.g., “I believe in Jesus, but I’m not religious”). What does Jesus say to people who want to live in the middle ground? Here’s what he says: “Enter by the narrow gate. For the gate is wide and the way is easy that leads to destruction, and those who enter by it are many. For the gate is narrow and the way is hard that leads to life, and those who find it are few” (vv. 13-14). In other words, there is no middle ground.
You’re either on the road that leads to life and the road that leads to destruction, so make sure you’re on the right road.
People don’t like to hear about hell. But if there is a hell and it can be avoided, my conscience demands that I share the truth. It’s often said that Jesus—known for his compassion—talked more about hell than any other person in the Bible.
How do we make sure we’re on the right road? This is the most important question in life. It’s a question about our eternal destinies!
1. We must do a 180.
When Jesus began his public ministry, he announced, “Repent, for the kingdom of heaven is at hand” (Matt. 4:17). To “repent” means to turn (i.e., do a 180 degree turn). To get on the narrow road, we must turn from our sin (i.e., repent) and turn to Jesus (i.e., put our faith in him).
2. We get confirmation that we’re on the right road by our actions.
“You will recognize [false prophets] by their fruits (v. 16).
“Everyone then who hears these words of mine and does them will be like a wise man who built his house on the rock” (v. 24).
But we shouldn’t interpret Jesus’ words to mean that we work our way into the kingdom of God. We enter God’s kingdom by faith alone (Eph. 2:8-9), but faith results in works (Eph. 2:10).
Jesus came to earth to go to the cross. He declared, “The Son of Man came not to be served but to serve, and to give his life as a ransom for many” (Matt. 20:28). “For” means “in the place of.” Jesus died in our place so that we could escape sin’s consequences (i.e., hell).
People often ask, “If God loves us, why do people go to hell?” There had to be atonement for sin. If God could simply overlook sin, why did Jesus die on a cross?
You will be enriched in every way to be generous in every way, which through us will produce thanksgiving to God (v. 11).
Have you noticed that we’re good at noticing the bad things that happen to us, but we often take the good things for granted? (We often say, “That’s just my luck!” thinking we have an unusual amount of bad luck.) A good practice (not just on Thanksgiving Day) is to make a list of the good things in our lives (i.e., a gratitude list). When we focus on the good things, our perspectives will change.
The song “Count Your Blessings” says, “Count your many blessings, name them one by one, and it will surprise you what the Lord hath done.” But it shouldn’t surprise us. Why should we have grateful hearts?
We should have grateful hearts because God has given to us an inexpressible gift.
The apostle Paul concludes his section on giving by praising God for the gift he has given us: “Thanks be to God for his inexpressible gift!” (v. 15). Human words are unable to express how amazing God’s gift is. And what is God’s “inexpressible gift”? It is Jesus (and salvation through his death).
“God loves a cheerful giver” (v. 7) because God is a giver. “Every good and every perfect gift is from above” (James 1:17). “God so loved the world, that he gave his only Son” (John 3:16). God “did not spare his own Son but gave him up for us all” (Rom. 8:32). People who see God as a taker don’t have grateful hearts.
Being grateful has many benefits. In this passage, we see two benefits of having a grateful heart.
1. If we have grateful hearts, we will have generous hearts.
Paul writes, “You will be enriched in every way to be generous in every way” (v. 11a). Notice that he says we are “enriched in every way” not merely so that we can have more but that we can give more (“to be generous in every way”). Of course, God doesn’t enrich us with only material blessings but also with spiritual blessings. “You know the grace of our Lord Jesus Christ, that though he was rich, yet for your sake he became poor, so that you by his poverty might become rich” (2 Cor. 8:9). Gratefulness for God’s grace produces generosity.
2. If we have generous hearts, others will have grateful hearts.
Our generosity not only helps others; it also can result in people giving thanks to God. Paul says that the gift of money for the believers in Jerusalem “will produce thanksgiving to God” (v. 11b). Paul writes, “For the ministry of this service is not only supplying the needs of the saints but is also overflowing in many thanksgivings to God” (v. 12). God is glorified when we give. And doesn’t God deserve to be glorified? He has given us an inexpressible gift!
We often think of giving as losing something (e.g., losing money, time), but we should really view generous giving as a gain. What do we gain? The joy of helping others and glorifying God. But we won’t see giving as a gain unless we have grateful hearts.
Every child of God can write a long gratitude list, and at the top of the list is God’s inexpressible gift!
“So whatever you wish that others would do to you, do also to them, for this is the Law and the Prophets” (v. 12).
When I was a kid, I liked to play Spot the Difference games. Sometimes it can be difficult to spot the differences.
How are followers of Jesus to be different?
We are to be different by being people of love.
If you’re wondering how you should act, remember one word: love.
The apostle Paul writes, “The one who loves has fulfilled the law” (Rom. 13:8). Obeying God’s commands can be difficult, but knowing what we should do isn’t complicated. Love is the answer. Paul adds, “For the commandments, ‘You shall not commit adultery, You shall not murder, You shall not steal, You shall not covet,’ and any other commandment, are summed up in this word: ‘You shall love your neighbor as yourself.’ Love does no wrong to a neighbor; therefore love is the fulfilling of the law” (Rom. 13:8-10; Gal. 5:14; James 2:8).
So Where Do We Get the Love?
Jesus states, “You will recognize [false prophets] by their fruits” (vv. 16, 20). “Their fruits” refers to the way they live. Someone who knowingly is a false teacher lacks love. “The fruit of the Spirit is love” (Gal. 5:22).
Can people spot the difference with you? Are you a person of love?
 Grant R. Osborne, Matthew, 265.
 To love someone doesn’t mean we always have to accept their behaviour (see v. 5). Sometimes doing good to someone requires correcting him when he does something wrong.
 Earlier, Jesus had said, “Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfill them” (5:17).
 John Piper, “The Spring of Persistent Public Love,” http://www.desiringgod.org/messages/the-spring-of-persistent-public-love.
“Ask, and it will be given to you; seek, and you will find; knock, and it will be opened to you” (v. 7).
Jesus invites us to pray by telling us to “ask,” “seek,” and “knock.” In the original Greek, these three words are in the present tense, which means that Jesus is talking about habitual prayer (i.e., keep on asking, keep on seeking, and keep on knocking). Why should we pray?
God is our loving Father and will give us good things when we pray.
In the Sermon on the Mount, Jesus repeatedly refers to God as our Father. For example, Jesus taught us to pray, “Our Father in heaven, hallowed by your name” (6:9). Generally, parents want to give good things to their children (like a father gives his son bread and fish, not a stone and a serpent, vv. 9-10). Jesus says, “If you then, who are evil, know how to give good gifts to your children, how much more will your Father who is in heaven give good things to those who ask him!” (v. 11).
The promise that Jesus gives us is that God will give us “good things,” not anything we want. We are often like little children, asking our Father for things we think are good but are actually bad.
God’s “no” is always a good thing.
God is perfectly good, so he always desires what is good for us. God is perfectly wise, so he always knows what is good for us. And God is perfectly strong, so he is able to do what is good for us.
There are many biblical examples of people who were frustrated with prayer. One of these was the prophet Habakkuk. The book of Habakkuk begins with the prophet complaining to God about unanswered prayer: “O LORD, how long shall I cry for help, and you will not hear?” (Hab. 1:2). Frustration with prayer is common. We don’t know exactly how prayer works, but what we do know is that Scripture promises that prayer does work.
When we pray, we must not forget that God is our Father and that he loves us and wants what is best for us. “See what kind of love the Father has given to us, that we should be called children of God” (1 John 3:1).
 John Piper, “Ask Your Father in Heaven,” http://www.desiringgod.org/messages/ask-your-father-in-heaven.
 Other Scripture passages used to support this teaching are Mark 11:22-24; John 14:12-14; 15:16; 16:23-24; 1 John 3:22; 5:14-15.
 Grant R. Osborne, Matthew, 264.
“Judge not, that you be not judged. For with the judgment you pronounce you will be judged, and with the measure you use it will be measured to you” (vv. 1-2).
It’s probably safe to say that the non-Christians favourite Bible verse is Matthew 7:1: “Judge not, that you be not judged.” If you say something is wrong, a non-Christian will often reply, “Didn’t Jesus say, ‘Judge not’”?
Is it wrong to judge? The answer seems clear: Jesus said, “Judge not.” But if you really think about it, when a person says it’s wrong to judge, that person is making a judgment (i.e., judging a person for judging).
Yes, Jesus said, “Judge not,” but when we interpret Scripture, we must always look at the context. In verse 6, Jesus says, “Do not give dogs what is holy, and do not throw your pearls before pigs, lest they trample them underfoot and turn to attack you.” “What is holy” and “[our] pearls” probably refer to the gospel. “Dogs” and “pigs” are probably people who are only interested in mocking the gospel. Jesus is telling us to stop sharing the gospel with them. This requires us to make a judgment (i.e., to discern whether or not the people with whom we are sharing the gospel are “dogs” and “pigs”).
We should also examine what the rest of Scripture says about the same subject. There are several verses in the NT that tell us to judge between right and wrong and to correct another believer if necessary. For example, Galatians 6:1 says, “Brothers, if anyone is caught in any transgression, you who are spiritual should restore him in a spirit of gentleness” (cf. 1 Cor. 5:5; Phil. 3:2; Heb. 3:13; 1 John 4:1).
So what did Jesus mean when he said, “Judge not”? He was saying that there’s a certain kind of person who should never judge.
A judgmental person should never judge.
What are the characteristics of a judgmental person?
1. A judgmental person lacks honesty about his own sinfulness.
Jesus describes a judgmental person as someone who tries to remove a speck from someone else’s eye while he has a log in his own eye (vv. 3-5). A judgmental person feels superior to others, but he’s a “hypocrite” (v. 5). “If anyone thinks he is something, when he is nothing, he deceives himself” (Gal. 6:2). A biblical example of a judgmental person is the Pharisee in Jesus’ story of the Pharisee and the tax collector (Luke 18:9-14).
2. A judgmental person lacks a loving concern for others.
How Can We Look Down on Others?
Someone who has experienced the mercy of God can’t be judgmental. We “were by nature objects of wrath” (Eph. 2:3). We were helpless and hopeless. “But God, being rich in mercy, because of the great love with which he loved us, even when we were dead in our trespasses, made us alive together with Christ” (Eph. 2:4-5). How can we look down on others?
 Grant R. Osborn, Matthew, 258.
“But seek first the kingdom of God and his righteousness, and all these things will be added to you” (v. 33).
It’s been said that worry is “the disease of the twenty-first century.” There’s an anxiety epidemic in our world. People worry about the safety of their children, their finances, their health--the list goes on and on.
Is there an antidote for worry?
The antidote for worry is to daily put our faith in a sovereign God who loves us.
Faith can either be either a good thing or a bad thing, depending on the object of our faith. Faith in God is a good thing because (1) he is able to provide what we need (“Is not life more than food, and the body more than clothing?”, v. 25), and (2) he cares about us (“Are you not of more value than [the birds]?”, v. 26). We can “[cast] all [our] anxieties on [God], because he cares for [us]” (1 Peter 5:7).
Worry is irrational. You can try to reason with a worrier, but worriers are immune to reason. (They’ll say, “I know, I know, but….”) Jesus asks, “Which of you by being anxious can add a single hour to his span of life?” (v. 27).  In other words, he’s saying that there’s no benefit to worrying.
Jesus says, “Do not be anxious, saying, ‘What shall we eat?’ or ‘What shall we drink?’ or ‘What shall we wear?’ For the Gentiles seek after all these things, and your heavenly Father knows that you need them all” (vv. 31-32). Unlike the pagan Gentiles, we have a heavenly Father who knows about our needs. They were filled with worry, but we are to be different.
Instead of worrying about the future, we should be doing what's right in the present.
Jesus says, “Seek first the kingdom of God and his righteousness, and all these things will be added to you” (v. 33). “First” means “above all else.”  We are to “hunger and thirst for righteousness” (5:6). We can’t control the future, but we can seek to live righteous lives right now.
Worriers live in the future, but Jesus says, “Do not be anxious about tomorrow, for tomorrow will be anxious for itself. Sufficient for the day is its own trouble” (v. 34).  When you catch yourself worrying about something, remember the phrase “when the time comes.” The worrier thinks, “What will I do when [something bad] happens?” God will give you the strength to handle it when the time comes.
Remember that God is sovereign and that he cares for you. Trust him.
 The words “Do not be anxious” are found three times in 6:25-34 (vv. 25, 31, 34).
 Michael J. Wilkins, Matthew, 296.
 Jesus was not saying we shouldn’t plan for the future or that we don’t need to work. God provides food for the birds (v. 26), but he doesn’t drop it into their beaks.
 Actually, chronic worry can be harmful to one’s physical health.
 Charles L. Quarles, Sermon on the Mount, Kindle location 5412.
 Jesus told us to ask our heavenly Father for our “daily bread” (6:11).
“For where your treasure is, there your heart will be also […] You cannot serve God and money” (vv. 21, 24b).
In 6:19-34, Jesus talks about money and possessions. Materialism is one of the big problems of our culture. Craig Blomberg writes, “It is arguable that materialism is the single biggest competitor with authentic Christianity for the hearts and souls of millions in our world today, including many in the visible church.”  We who are followers of Jesus are to be different. Our lives are not to be all about making money and acquiring possessions.
Knowing and obeying God should be the treasure we pursue.
All of us would probably say, “I don’t worship wealth. I don’t love money.” But are we fooling ourselves? What are your goals? What do you spend your time thinking about? Do you think about how you can grow in your knowledge of God and obedience to God? Or do you think more about material things (e.g., getting an iPhone, going on a dream vacation, saving money for retirement, renovating the house)?
It’s foolish to devote your life to pursuing material wealth. Why? Jesus says, “Do not lay up for yourselves treasures on earth, where moth and rust destroy and where thieves break in and steal” (v. 19). Material possessions are temporary. They can be, as Jesus states, ruined or lost. Even if our possessions aren’t ruined or lost, we only have them during this life (like the rich farmer in Luke 12:15-21).
Wealth is most attractive when we view this life as all there is.
Jesus declares, “But lay up for yourselves treasures in heaven, where neither moth nor rust destroys and where thieves do not break in and steal” (v. 20).
Knowing and obeying God should not be seen as a duty but as a delight. Why? Because of what God has done for us. “God shows his love for us in that while we were still sinners, Christ died for us” (Rom. 5:8).
Our hearts should belong to God. We should treasure nothing more than knowing and obeying him.
 Craig Blomberg, Neither Poverty nor Riches: A Biblical Theology of Material Possessions, 132.
 Michael J. Wilkins, Matthew, 303.
 Wilkins writes, “When we focus on something evil, the eye becomes the conduit by which evil fills the inner person” (Matthew, 295).
 Tim Keller, Counterfeit Gods, xvii.
“You have heard that it was said, ‘You shall love your neighbor and hate your enemy.’ But I say to you, Love your enemies and pray for those who persecute you” (vv. 43-44).
How Is It Possible to Love Our Enemies?
In the English language, “love” has many meanings. John 3:16 helps us understand the biblical meaning of love: “For God so [in this way] loved the world, that he gave his only Son, that whoever believes in him should not perish but have eternal life.” To love as God loves means to give of ourselves for the benefit of others.
An enemy is someone who hates you (e.g., someone who “revile[s] you and persecute[s] you,” Matt. 5:11). An example of someone in Scripture who loved his enemies was Stephen, who prayed while he was being stoned to death: “Falling to his knees he cried out with a loud voice, ‘Lord, do not hold this sin against them’” (Acts 7:60).  How is it possible for us to love our enemies?
We will never be able to love our enemies unless we see God's grace as amazing.
The apostle Paul writes, “God shows his love for us in that while we were still sinners, Christ died for us” (Rom. 5:8). Later, he says, “While we were enemies we were reconciled to God by the death of his Son” (Rom. 5:10). God sent Jesus to this earth to die for his enemies.
Jesus says, “You have heard that it was said, ‘You shall love your neighbor and hate your enemy’” (v. 43). “You shall love your neighbor” is from Leviticus 19:18, but nowhere does the law say, "Hate your enemy.”  According to Exodus 23:4-5, people were to help their enemies: “If you meet your enemy’s ox or his donkey going astray, you shall bring it back to him. If you see the donkey of one who hates you lying down under its burden, you shall refrain from leaving him with it; you shall rescue it with him” (cf. Prov. 25:21).
The Jews wanted to restrict who their neighbour was.  Jesus was once asked, “Who is my neighbor?” (Luke 10:29). He answered by telling the parable of the good Samaritan (Luke 10:30-35). The Samaritans and the Jews were enemies, but the good Samaritan helped the Jew who was in trouble. The Samaritan’s enemy was his neighbour.
Jesus states that God provides sun and rain for all people—even his enemies: “He makes the sun rise on the evil and on the good, and sends rain on the just and on the unjust” (v. 45b). We are to love like God, which means that our love is to be very different from the world’s love: “For if you love those who love you, what reward do you have? Do not even the tax collectors do the same? And if you greet only your brothers, what more are you doing than others? Do not even the Gentiles do the same?” (vv. 46-47).
Our goal is the perfect love of God.
To obey God’s law, we must love. Jesus said that the two greatest commandments are “You shall love the Lord you God with all your heart and with all your soul and with all your mind” (Matt. 22:37) and “You shall love your neighbor as yourself” (Matt. 22:39). “The one who loves another has fulfilled the law” (Rom. 13:8; cf. v. 10). “The whole law is fulfilled in one word: ‘You shall love your neighbor as yourself” (Gal. 5:14).
At the age of seventy-five, Abraham was given an incredible promise from God. He and his wife Sarah would be given something that they had desperately wanted for so many years: a son. But years after the boy’s birth, a shocking command came from God to Abraham: “Take your son, your only son Isaac, whom you love, and go to the land of Moriah, and offer him there was a burnt offering” (Gen. 22:2).
We will never be able to love our enemies unless we see God’s grace as amazing. Like hot coffee makes a mug warm, God’s grace warms our hearts.
 Stephen was following the example of Jesus, who prayed for his enemies while dying on the cross: “Father, forgive them, for they know not what they do” (Luke 23:34). We also see from Stephen and Jesus that love is not incompatible with rebuke (Acts 7:51-53; Matt. 23:1-36).
 Generally, the Jews of Jesus’ day considered fellow Jews as their neighbours and Gentiles as their enemies.
 Jesus is not saying that we become God’s children by loving our enemies. “He is not giving the means by which one becomes a child of God but indicates that love makes explicit the relationship between God the Father and Jesus’ disciples” (Michael J. Wilkins, Matthew, 253).
 Alfred Plummer, An Exegetical Commentary on the Gospel According to St. Matthew, 89.
 Charles L. Quarles, Sermon on the Mount, Kindle locations 3442-3447.

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


At the time of respondent's arrest for sexual battery, police officers searched his automobile and seized several items. Approximately eight hours after the car was impounded, an officer, without obtaining a warrant, searched the car a second time, seizing additional evidence. The Florida trial court denied respondent's motion to suppress the evidence seized during the second search, and respondent was convicted. The Florida District Court of Appeal reversed, holding that even though respondent conceded that the initial search of the car was valid, the second warrantless search violated the Fourth Amendment because the car had been impounded, removing the element of mobility.
Held: The Fourth Amendment was not violated by the second search of respondent's car. The justification to conduct a warrantless search of a car that has been stopped on the road -- based on probable cause to believe there is evidence of crime inside it -- does not vanish once the car has been impounded and immobilized. Michigan v. Thomas, 458 U. S. 259.
Certiorari granted; 432 So.2d 97, reversed and remanded.
District Court of Appeal is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
* Even though the District Court of Appeal remanded the case for a new trial, its decision on the federal constitutional issue is reviewable at this time because, if the State prevails at the trial, the issue will be mooted, and if the State loses, governing state law, Fla.Stat. § 924.07 (1981); State v. Brown, 330 So.2d 535, 536 (Fla.App.1976), will prohibit it from presenting the federal claim for review. In such circumstances, we have consistently held that "the decision below constitute[s] a final judgment under 28 U.S.C. § 1257(3)." California v. Stewart, decided with Miranda v. Arizona, 384 U. S. 436, 384 U. S. 497, 384 U. S. 498, n. 71 (1966). See South Dakota v. Neville, 459 U. S. 553, 459 U. S. 558, n. 6 (1983); North Dakota Pharmacy Board v. Snyder's Stores, 414 U. S. 156, 414 U. S. 159-164 (1973). See also Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 420 U. S. 481 (1975).
"the appellate court reversed [respondent's] conviction on two independent grounds, one of which (restricted cross-examination) petitioner does not contest."
Brief in Opposition 2. To the extent that this is an argument that the lower court's judgment is unreviewable because it rests on adequate and independent state grounds, we reject it. First, it is highly questionable whether the District Court of Appeal would have reversed the conviction had it not reversed the trial court's ruling on the suppression motion. The court did state that respondent's cross-examination of the victim had been unduly restricted by the trial court. However, the court's short discussion of this issue was introduced by the observation that, "[s]ince the case must be remanded for a new trial, we briefly mention another appellate point." 432 So.2d at 99. This is hardly a clear indication that the cross-examination ruling provided an independent and adequate basis for reversal of the conviction. See Michigan v. Long, 463 U. S. 1032, 463 U. S. 1040-1041 (1983).
"[w]e are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion."
Herb v. Pitcairn, 324 U. S. 117, 324 U. S. 126 (1945). In the present case, there is no possibility that our opinion will be merely advisory. Even if the District Court of Appeal were to order a new trial solely on the basis of its cross-examination ruling, the admissibility of critical evidence at that trial hinges on the constitutional issue presented for review by petitioner. Thus, our resolution of that issue will affect the proceedings below regardless of how the District Court of Appeal rules on remand. In such circumstances there is no jurisdictional reason why we cannot address the issue presented to us.
No judicial system is perfect. In this case, the Florida District Court of Appeal for the Fourth District appears to have made an error. In the exercise of its discretion, the Florida Supreme Court elected not to correct that error. No reasons were given for its denial of review, and since the record is not before us, we cannot know what discretionary factors may have prompted the Florida Supreme Court's decision. This Court, however, finds time to correct the apparent error committed by the intermediate appellate court, acting summarily without benefit of briefs on the merits or argument.
"This Court can only deal with a certain number of cases on the merits in any given Term, and therefore some judgment must attend the process of selection."
Torres-Valencia v. United States, 464 U. S. 44 (1983) (REHNQUIST, J., dissenting). If the error corrected today had been committed by a federal court, the Court's action arguably would be a proper exercise of its supervisory powers over the federal judicial system. See this Court's Rule 17.1(a). Or if the case raised a novel question of federal law on which there was a divergence of opinion, arguably it would be proper for the Court to assume jurisdiction for the purpose of clarifying the law. See this Court's Rules 17.1(b) and (c). Or if there were reason to believe that the state court refused to apply federal precedent because of its hostility to this Court's interpretation of the Constitution, see generally Cooper v. Aaron, 358 U. S. 1 (1958), we might have an obligation to act summarily to vindicate the supremacy of federal law. No such consideration is present in this case. In fact, the case on which the majority principally relies, Michigan v. Thomas, 458 U.S.
concerning our confidence in the ability of the state judges to decide Fourth Amendment questions, see Allen v. McCurry, 449 U. S. 90 (1980); Stone v. Powell, 428 U. S. 465 (1976), are given a hollow ring when we are found peering over their shoulders after every misreading of the Fourth Amendment. Second, our ability to perform our primary responsibilities can only be undermined by enlarging our self-appointed role as supervisors of the administration of justice in the state judicial systems. Dispositions such as that today can only encourage prosecutors to file in increasing numbers petitions for certiorari in relatively routine cases, and if we take it upon ourselves to review and correct every incorrect disposition of a federal question by every intermediate state appellate court, we will soon become so busy that we will either be unable to discharge our primary responsibilities effectively or else be forced to make still another adjustment in the size of our staff in order to process cases effectively. We should focus our attention on methods of using our scarce resources wisely, rather than laying another course of bricks in the building of a federal judicial bureaucracy.
"I believe that, in reviewing the decisions of state courts, the primary role of this Court is to make sure that persons who seek to vindicate federal rights have been fairly heard."
overused its power of summary disposition to protect the citizen against government overreaching. Nevertheless, the Court must be ever mindful of its primary role as the protector of the citizen, and not the warden or the prosecutor. The Framers surely feared the latter more than the former. I respectfully dissent.
"[W]hen, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached."
Id. at 463 U. S. 1040-1041.
In effect, Long created a presumption of jurisdiction when the state decision rests "primarily on" or is "interwoven with" federal law. See id. at 463 U. S. 1042, and n. 8. Here, the cross-examination ruling in no sense "rested on" or was "interwoven with" federal law. Yet today, by its citation of Long, the Court implies that all state courts have some sort of duty to make a plain statement that even their indisputably state law decisions are independent of any federal question in the case. This apparent extension of Long occurs without briefs on the merits or argument; in fact petitioner does not even cite Long. It is all the more puzzling since the last paragraph in the Court's footnote is sufficient to support the exercise of jurisdiction over this case without any reliance on Long.
This trend, unfortunately, does not appear to be limited to the Court's summary dispositions. See Long, 463 U.S. at 463 U. S. 1069-1070, and n. 3 (STEVENS, J., dissenting).
The cases, other than this one, are: Rushen v. Spain, 464 U. S. 114 (1983) (per curiam); Wainwright v. Goode, 464 U. S. 78 (1983) (per curiam); California v. Beheler, 463 U. S. 1121 (1983) (per curiam); Illinois v. Batchelder, 463 U. S. 1112 (1983) (per curiam); Maggio v. Fulford, 462 U. S. 111 (1983) (per curiam); Cardwell v. Taylor, 461 U. S. 571 (1983) (per curiam); Wyrick v. Fields, 459 U. S. 42 (1982) (per curiam); Anderson v. Harless, 459 U. S. 4 (1982) (per curiam); United States v. Hollywood Motor Car Co., 458 U. S. 263 (1982) (per curiam); Michigan v. Thomas, 458 U. S. 259 (1982) (per curiam); Fletcher v. Weir, 455 U. S. 603 (1982) (per curiam); Sumner v. Mata, 455 U. S. 591 (1982) (per curiam); Wainwright v. Torna, 455 U. S. 586 (1982) (per curiam); Hutto v. Davis, 454 U. S. 370 (1982) (per curiam); Harris v. Rivera, 454 U. S. 339 (1981) (per curiam); Leeke v. Timmerman, 454 U. S. 83 (1981) (per curiam); Jago v. Van Curen, 454 U. S. 14 (1981) (per curiam); Duckworth v. Serrano, 454 U. S. 1 (1981) (per curiam). See also Board of Ed. of Rogers, Ark. v. McCluskey, 458 U. S. 966, 458 U. S. 972-973 (1982) (STEVENS, J., dissenting).


Anderson and three accomplices had robbed a Milwaukee bank in 2014. As they drove away, a dye pack burst inside a bag of currency, leaving some of the bills stained and singed. The robbers tossed the bag from the car. A citizen found it and gave it to police. Authorities found another $561 when, a day later, they arrested Anderson’s brother driving the stolen getaway car. Anderson pleaded guilty to armed bank robbery, 18 U.S.C. 2113(a), (d), and admitted stealing $4,237 in currency and about $500 in coins. The judge imposed 156 months’ imprisonment and ordered Anderson to pay $4,131 in restitution (a miscalculated amount). On remand, the case was assigned to a different judge; Anderson again changed lawyers. His third lawyer objected to the presentence report but said nothing about restitution. The judge sought clarification of the report’s restitution calculation. The prosecutor remained silent about the $2,107 of singed and stained currency in the government’s possession. The judge sentenced Anderson to 126 months’ imprisonment and again ordered him to pay $4,131 in restitution. The Seventh Circuit again remanded, noting that defense counsel may have been unaware of the cash recovered immediately after the robbery. Under 18 U.S.C. 3664(e), the government must prove that the victim will not be made whole by returning stolen property that has been recovered.
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 3134 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DEANDRE ANDERSON, Defendant Appellant. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14 CR 186 — Lynn Adelman, Judge. ____________________ ARGUED JUNE 7, 2017 — DECIDED AUGUST 7, 2017 ____________________ Before RIPPLE, ROVNER, and HAMILTON, Circuit Judges. ROVNER, Circuit Judge. Deandre Anderson, who pleaded guilty to armed bank robbery, challenges an order of restitu tion. He contends that the district court compelled him to pay an extra $2,107—the value of stolen currency recovered by police minutes after the robbery and held by the govern ment ever since. We agree with Anderson that the restitution award is overstated, and we remand for a determination of the correct amount. 2 No. 16 3134 I. This case is before us after a remand for resentencing. See United States v. Anderson, No. 15 2710 (7th Cir. Feb. 4, 2016). Anderson and three accomplices had robbed a Mil waukee bank in 2014. He went inside with two others (one of them his brother), while a fourth man waited outside in a stolen car. The men grabbed bills and coins, and as they drove away, a dye pack burst inside a bag of currency— leaving some of the bills stained and singed. The robbers tossed the bag from the car, but a citizen found it and gave it to police. Authorities found more of the stolen currency when, a day later, they arrested Anderson’s brother driving the stolen getaway car. Anderson pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(a), (d), and admitted details of the offense in a factual basis incorporated into his plea agreement. He ad mitted stealing $4,237 in currency and about $500 in coins. The factual basis discloses that $561 was recovered at the time of his brother’s arrest, but nothing is said about the dis carded bag of money turned over to police. Before Anderson’s initial sentencing, a probation officer forgot to include the $500 in stolen coins when calculating the amount of money taken during the robbery. In her presentence report, the probation officer said that the total amount stolen was $4,237 and that, after subtracting the $561 recovered from the brother, the restitution obligation was $3,676. At the initial sentencing the prosecutor told the district judge that the parties had agreed that the probation officer mistakenly omitted from her restitution calculation the $500 No. 16 3134 3 in stolen coins. And although the prosecutor disclosed that police had recovered $561 and the bag containing $2,107 in currency, she said the discarded bills “were burned and stained” and “non useable because the dye pack had gone off.” For that reason, the prosecutor insisted, Anderson’s res titution obligation should include the value of the discarded bills. The judge asked if defense counsel agreed with the prosecutor, and counsel said yes. The judge imposed 156 months’ imprisonment and ordered Anderson to pay $4,131 in restitution (an amount that could not have been correct, even under the prosecutor’s logic, because $4,237 plus $500 minus $561 equals $4,176, not $4,131). Anderson filed a notice of appeal, but he did not com plain about the calculation of restitution. Instead, after An derson obtained new counsel, the parties filed a joint motion asserting that, because of problematic conditions of super vised release, we should remand for resentencing in light of United States v. Thompson, 777 F.3d 368 (7th Cir. 2015), and United States v. Kappes, 782 F.3d 828 (7th Cir. 2015). We grant ed that motion. On remand the case was assigned to a different judge, and Anderson again changed lawyers. This third lawyer filed objections to the presentence report along with a sen tencing memorandum, but counsel still said nothing about restitution. At resentencing counsel limited his objections to those he filed. The judge, however, was doubtful about the presentence report’s restitution calculation and sought clari fication: “I want to confirm that the parties agree that the restitution is $4,131. The robbers took $4,237 in cash and 500 in coins. 561 was recovered from [Anderson’s brother]. This leaves 4131.” The lawyers concurred (even though that equa 4 No. 16 3134 tion equals $4,176). Throughout this exchange the prosecutor remained silent about the $2,107 in the government’s posses sion. The judge sentenced Anderson to 126 months’ impris onment and again ordered him to pay $4,131 in restitution. II. On appeal Anderson argues that the district court erro neously ordered him to pay as restitution the value of the $2,107 in the government’s possession. That currency, says Anderson, should have been returned to the bank. The gov ernment defends the restitution order by contending that, first, Anderson waived this appellate claim and, second, he failed to prove that the recovered currency should “offset” the loss amount. We start with the question of waiver. The government as serts that Anderson waived his restitution claim for two rea sons: (1) he did not raise the claim at his original sentencing or in his first appeal and (2) he agreed to the restitution amount at resentencing. We disagree. As to the first of these contentions, the answer is straightforward: “A remand in light of Thompson vacates the entire sentence, allowing the district court to alter any aspect of that sentence at resentenc ing.” United States v. Lewis, 842 F.3d 467, 473 (7th Cir. 2016); see United States v. Mobley, 833 F.3d 797, 801 (7th Cir. 2016) (explaining that, after a Thompson remand, “the defendant may assert any argument she wishes”). The government’s second contention is stronger, but that argument cannot carry the day unless Anderson, by agree ing to the restitution figure proposed by the judge at resen tencing, intentionally relinquished a known right. See United States v. Butler, 777 F.3d 382, 387 (7th Cir. 2015). Only if a de No. 16 3134 5 fendant chooses, “as a matter of strategy, not to present an argument” will that argument be deemed waived. United States v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009); see United States v. Burns, 843 F.3d 679, 686–87 (7th Cir. 2016) (conclud ing that defendant who agreed to loss amount did not waive argument that he was responsible for less than full amount of restitution ordered); Butler, 777 F.3d at 387–88 (concluding that absence of objection to guidelines calculation was forfei ture, not waiver, because court could not conceive of strate gic reason for not objecting); United States v. Jaimes Jaimes, 406 F.3d 845, 848 (7th Cir. 2005) (concluding that defendant’s acquiescence to upward adjustment under the sentencing guidelines had not waived appellate challenge to that in crease because appellate court could not conceive of strategic reason for not objecting). Nothing in the record before us suggests that Anderson’s new lawyer even knew about the robbery proceeds still in the government’s possession. And the prosecutor stood by silently when the new judge asked the parties to confirm his restitution math. What is more, it would not matter if Anderson’s new lawyer did know about the $2,107, since the attorney’s agreement with the court’s loss calculation does not establish that counsel chose, on behalf of Anderson, to forgo objection as a matter of strategy. See United States v. Allen, 529 F.3d 390, 393–95 (7th Cir. 2008) (concluding that defendant did not waive objection to restitution amount, despite counsel’s statement that defendant did not object, since defendant lacked strategic reason for abandoning challenge); cf. United States v. Venturella, 585 F.3d 1013, 1019 (7th Cir. 2009) (concluding that defendant waived argument by stra tegically withdrawing objection to obtain reduction for ac ceptance of responsibility). Anderson did not rely on the res 6 No. 16 3134 titution calculation in any way, and saying nothing about the figure simply added thousands more to his restitution obli gation. On this record, there is no reason to think that de fense counsel intentionally decided against raising the claim presented in this appeal. And though he forfeited this claim, we will review a forfeited claim for plain error. That brings us to the merits of Anderson’s claim. The government says he seeks an “offset” and argues that An derson was obligated to prove, but did not prove, that the restitution figure should be reduced by the amount of cur rency in its possession. Those bills, the government says, are “burned and dye stained” and possibly not replaceable by the Treasury Department. We conclude, however, that the government mischaracterizes what Anderson seeks and has misstated the burden of proof. In a case involving stolen property, the restitution statute directs sentencing courts to order return of the property to the victim or, if return would be impossible, impracticable, or inadequate, to compel the defendant to pay the value of the property less the value of any property already returned. 18 U.S.C. § 3663A(b); see Robers v. United States, 134 S. Ct. 1854, 1857 (2014) (noting that, if the property damaged, lost, or destroyed was currency, then the property returned “need not be the very same bills”). Because the government bears the burden of establishing “the amount of the loss sustained by a victim,” 18 U.S.C. § 3664(e), it falls on the government to prove that the victim will not be made whole by returning stolen property which has been recovered, see United States v. Fonseca, 790 F.3d 852, 855 (8th Cir. 2015). This is the rule gov erning the stolen currency in the government’s possession. No. 16 3134 7 Anderson is not seeking an “offset” as that word is understood in the restitution statute. A defendant is on the hook for stolen property that truly is unreturnable to the rightful owner. Sometimes when stolen property cannot be returned the defendant may seek to reduce his restitution obligation commensurately with the value of other property or services conveyed to the victim before sentencing. See 18 U.S.C. § 3663A(b)(1)(B)(ii); Allen, 529 F.3d at 397 (remanding for valuation of services that defendant had provided to victim of fraud scheme); United States v. Shepard, 269 F.3d 884, 887–88 (7th Cir. 2001) (remanding for valuation of improvements that defendant had made to victim’s home). This is what courts mean by “offset” or “setoff,” and when offset is the issue, the defendant bears the burden of proof because he knows best what he returned to the victim. United States v. Malone, 747 F.3d 481, 486 (7th Cir. 2014). Anderson is not saying he gave the bank a substitute asset; what he wants is for the government to give back to the bank the stolen currency held by the government. According to Anderson, the government never proved that the stolen currency in its possession could not be re turned to the bank. An example makes his point: Suppose while fleeing Anderson had dropped a bag of stolen curren cy that a bank employee immediately retrieved and returned to the vault. That currency would not be a “loss” to the bank for purposes of restitution. See United States v. Newman, 144 F.3d 531, 543 (7th Cir. 1998) (concluding that restitution fig ure was accurately based on government’s uncontradicted representation that money strewn across bank floor was not included in loss amount). That the police, not a bank em ployee, recovered the $2,107 in this case is irrelevant. See Fonseca, 790 F.3d at 855 (“When a criminal proceeding is 8 No. 16 3134 completed, the government has a duty to return property in its custody to the rightful owner, unless it is subject to forfei ture.”). We do not have a situation involving forfeiture or doubt about the ownership of property in the government’s possession; the $2,107 always has belonged to the victim bank, and the government always has known that this money belongs to the bank. Cf. United States v. Taylor, 128 F.3d 1105, 1111 (7th Cir. 1997) (rejecting bank robbers’ argument that amount of restitution should be reduced by value of cash re covered from robbers but never “proven to be part of the proceeds of the robbery”). The government contends that returning the $2,107 to the bank would be “inadequate” because, the government as serts, the bills are burned and stained. But in the district court the prosecutor never sought to prove this assertion, nor did she ever say why the appearance of the bills matters. At Anderson’s initial sentencing the prosecutor first dis closed that $2,107 in currency had been recovered but then said the bills were “non useable” because they were “burned and stained.” There is nothing in the record suggesting that the bills in the government’s possession are “non usable,” nor did the judge at either sentencing hearing make a find ing on that question. Indeed, the evidence undermines the government’s position: Just three months before Anderson’s resentencing, the government had introduced those very bills during the trial of Anderson’s brother (who was con victed of other charges but acquitted of bank robbery). And during that trial a Milwaukee police officer testified that he had counted $2,107 in bills; he described some as having dye stains but did not say that any were burned, let alone that the entire bag of money was “non usable.” Although the judge at Anderson’s resentencing would have been free to No. 16 3134 9 consider evidence from the brother’s trial, see United States v. Are, 590 F.3d 499, 524 (7th Cir. 2009), the judge, who presided over both proceedings, apparently did not recall the officer’s testimony about the $2,107 when calculating restitution. The government suggests also that the $2,107 might be inadequate because, according to a commercial website cited by Anderson, the Treasury Department may not exchange bills damaged by explosion. This suggestion is absurd. In stead of a commercial website, we look to applicable federal law to understand the circumstances in which damaged cur rency may be exchanged for fresh bills. Federal regulations provide that currency “unfit for further circulation” because of its physical condition—e.g., “torn, dirty, limp, worn or de faced”—is redeemable at any commercial bank; only if a bill is so badly damaged that (1) one half or less of the note re mains or (2) doubt exists about the denomination will it be necessary to send that bill to the Treasury Department for discretionary replacement. See 31 C.F.R. §§ 100.5, 100.7; Ser vices: Redeem Mutilated Currency, Dep’t of Treas., http://www.moneyfactory.gov/services/currencyredemption. html (visited July 26, 2017). The government cannot claim ignorance about the condition of currency in its custody. The government’s fallback is that returning the $2,107 to the victim bank is “impracticable” because Anderson’s brother has appealed, and, according to the government, the currency will be needed as evidence if he must be resen tenced. This argument falls flat. The government conceded at oral argument that a defendant should not be ordered to pay in restitution the value of useable bills that the govern ment has retained solely as evidence. 10 No. 16 3134 The Sixth Circuit has a single nonprecedential decision which favors the government’s position, but we are not per suaded by that decision. In United States v. Calhoun, the de fendant robbed a bank of $4,259. All of that currency had been recovered and returned to the bank before sentencing, but the defendant still was ordered to pay restitution in the same amount. 513 F. App’x. 514, 516 (6th Cir. 2013). On ap peal the defendant argued for the first time that no amount of restitution was authorized because the bank’s money had been returned. Id. at 518–19. The Sixth Circuit disagreed, rea soning that the currency given back to the bank had been burned when the dye pack exploded and, because the de fendant had not raised the issue at sentencing, there was no way to know if the Treasury Department would replace the damaged bills. Id. at 519. This reasoning, we conclude, im properly flips the burden of proof from the government to the defendant; the defendant is not required to disprove the amount of loss alleged by the government. At one time the Eighth Circuit followed an approach sim ilar to that in Calhoun, but a more recent Eighth Circuit deci sion requires the district court to exclude from the restitution obligation property that will be returned to the victim. In the earlier of these decisions, United States v. McCracken, the Eighth Circuit upheld a restitution order that disregarded the recovery of $850 from the defendant when he was arrest ed for bank robbery. 487 F.3d 1125, 1128–29 (8th Cir. 2007). The district court simply had trusted an assurance from gov ernment counsel that the seized money eventually would be returned to the victim bank and the restitution amount “ad justed” accordingly. Id. More recently, in Fonseca, a case in volving stolen guns recovered and retained by authorities, the Eighth Circuit vacated a restitution order that included No. 16 3134 11 the value of the recovered guns and remanded for a gov ernment accounting of the firearms, including an explana tion of when they would be returned or why they would not be. 790 F.3d at 855. The court reasoned that the value of guns should not be included in the restitution obligation if they would be returned because that would provide double re covery to the victim. Id. The Eighth Circuit attempted to dis tinguish McCracken on the theory that, unlike cash, the value of guns changes over time and, because of this fluctuation, the district court had to determine the guns’ value as of the date of sentencing and reduce the restitution amount accord ingly. Despite the valuation distinction, in McCracken the court affirmed an order of restitution that included property seized by the government and slated for return to the victim, but in Fonseca eight years later the court said that such prop erty is not counted as loss. The government does not rely on Calhoun or McCracken, and, in our view, Fonseca is the better reasoned of these decisions from out of circuit. We conclude that plain error resulted from the govern ment’s failure at resentencing to offer evidence that the $2,107 of stolen currency in its possession is inadequate for return to the victim bank. Had the prosecutor disclosed to the resentencing judge (who, quite understandably, may not have recalled all of the testimony from the trial of Ander son’s brother) that the government still possessed the $2,107, the judge could have adhered to the restitution statute by hearing evidence and deciding if any of that amount was re turnable to the bank, 18 U.S.C. § 3663A(b)(1)(B)(i), or if these bills are so badly damaged that they cannot be replaced. The government did not prove that the discarded proceeds are unreturnable; therefore, the order of restitution, by obligat ing Anderson to repay the value of those proceeds, errone 12 No. 16 3134 ously exceeds the proven loss. That error is obvious under the law, even if not obvious to the judge at resentencing. See Burns, 843 F.3d at 687–88. And it harms both the defend ant’s substantial rights and the fairness, integrity, and public reputation of judicial proceedings when district courts order restitution that exceeds the proven loss. Burns, 843 F.3d at 689; United States v. Yihao Pu, 814 F.3d 818, 831 (7th Cir. 2016); United States v. Kieffer, 794 F.3d 850, 854 (7th Cir. 2015). III. Because the record does not support the amount of loss reflected in the order of restitution, we VACATE the restitu tion award and REMAND for a hearing limited to determin ing the proper amount of restitution. The remainder of An derson’s sentence is left undisturbed.
Government was required to either offset cash recovered after robbery from defendant's restitution obligation or proved that the victim would not be made whole by the return of that cash.


This week’s notable decision is a good one on the current state of ERISA remedies. In Osberg v. Foot Locker, Inc., Foot Locker Retirement Plan, No. 15-3602-CV, __F.3d__, 2017 WL 2871358 (2d Cir. July 6, 2017). Foot Locker and the Foot Locker Retirement Plan appealed from a judgment entered by the district court following a two-week bench trial, where the district court held that Foot Locker violated ERISA §§ 102 and 404(a) by, inter alia, failing to disclose “wear-away” caused by Foot Locker’s introduction of a new employee pension plan. Invoking its equitable power under ERISA § 502(a)(3), the district court ordered reformation of the plan to conform to the plan participants’ reasonably mistaken expectations, which the district court found to have resulted from Foot Locker’s materially false, misleading, and incomplete disclosures. Defendants do not challenge the district court’s determination of their ERISA violations; rather, they complain “that the district court erred by: (1) awarding relief to plan participants whose claims were barred by the applicable statute of limitations; (2) ordering class-wide relief on participants’ § 404(a) claims without requiring individualized proof of detrimental reliance; (3) concluding that mistake, a prerequisite to the equitable remedy of reformation, had been shown by clear and convincing evidence as to all class members; and (4) using a formula for calculating relief that resulted in a windfall to certain plan participants.” The Second Circuit Court of Appeals rejected each of the above challenges and affirmed the district court’s judgment for the following reasons.
First, on the question of timeliness of the § 102 claims, the court adopted the Novella framework and asks whether a participant would have had enough information to assure that he knew or reasonably should have known of the existence of wear-away at the time that the participant received the lump sum payment. The court declined to start the statute of limitations clock running at the time of the lump sum payment given that the materials designed by Foot Locker concealed “the very phenomenon that Defendants now argue should have been ‘readily discoverable.’” On the timeliness of the § 404(a) claims, the court, determined that the concealment exception applies in this case and the claims are timely because they were brought within six years of their discovery in 2005.
Second, on the issue of individualized proof of detrimental reliance, the court held that Defendants’ arguments are foreclosed by the Supreme Court’s reasoning in CIGNA Corp. v. Amara (“Amara I”), 563 U.S. 421 (2011). Where a plaintiff alleges a violation of § 404(a) and seeks plan reformation under § 502(a)(3), he or she need not show detrimental reliance. Thus, the district court correctly declined to require such a showing before granting class-wide relief.
Third, on the issue of mistake, the court found that an ERISA contract may be reformed where one party is mistaken and the other commits fraud or engages in inequitable conduct. Here, it is sufficient for Plaintiffs to show ignorance of a contract’s terms through generalized circumstantial evidence where Defendants have made uniform misrepresentations about an agreement’s contents and have undertaken efforts to conceal its effect. The district court did not err in concluding that class-wide mistake was demonstrated by clear and convincing evidence.
Lastly, the court did find theoretically appealing Defendants’ arguments that the district court’s award of equitable relief should have been tailored to account for the fact that certain participants experienced little to no wear-away, but, given the review for abuse of discretion or clear error of law, the Second Circuit concluded that the district court’s award of benefits to all participants did not fall outside the range of permissible decisions available.
There you have it ERISA Watchers! Amara at its finest. Enjoy a quick skim of the rest of this past week’s notable decisions.
Schwartz v. Cook, No. 15-CV-03347-BLF, 2017 WL 2834115 (N.D. Cal. June 30, 2017) (Judge Beth Labson Freeman). In this ESOP breach of fiduciary duty case, the court finally approved a $350,000 settlement which represents approximately $6.00 per share before attorneys’ fees and expenses are deducted and approximately $3.61 per share after deduction. The court received only one objection to the settlement by the former CEO who believes the company is worth more. The court approved attorneys’ fees of $115,500 and reimbursement of expenses of $25,000.
Everette v. Liberty Life Assurance Company of Boston, No. CV TDC-16-1248, 2017 WL 2829673 (D. Md. June 29, 2017) (Judge Theodore D. Chuang). The court granted judgment in favor of Liberty Life, finding that it was not unreasonable for Liberty to accord only limited to weight to the report of a physician’s assistant, a Functional Capacity Evaluation, and the statements of Plaintiff and her family and friends and greater weight to the evaluations of the medical records by two independent physicians, particularly where Plaintiff’s treating physicians offered no contrary interpretation of the records.
Cooper v. Metro. Life Ins. Co., No. 16-3429, __F.3d__, 2017 WL 2853729 (8th Cir. July 5, 2017) (Before WOLLMAN and LOKEN, Circuit Judges, and NELSON, District Judge). The court affirmed the district court’s grant of summary judgment in favor of MetLife in this dispute over the denial of long-term disability benefits. Specifically, the court held that: (1) only minimal weight to MetLife’s conflict of interest applied based on its dual role as both evaluator and payor of benefits claims; (2) the district court did not abuse its discretion in excluding physician affidavits from the record that were proffered by Plaintiff to challenge the accuracy of the consulting physician’s report; (3) crediting the consulting physician’s opinion that participant was not objectively disabled over a competing assessment by the treating physician was not arbitrary; and (4) the alleged error by MetLife in denying benefits by allowing a nurse with unspecified training to decide medical importance of Plaintiff’s lab tests was harmless.
Abston v. Sedgwick Claims Mgmt. Servs., Inc., No. 3:16-CV-00037-AKK, 2017 WL 2834059 (N.D. Ala. June 30, 2017) (Judge Abdul K. Kallon). In this matter where Plaintiff suffers from lupus, psoriasis, arthritis, and fibromyalgia, the court found that Sedgwick’s decision to deny Plaintiff’s long term disability benefits was de novo correct and not an abuse of discretion. The court rejected Plaintiff’s argument that Sedgwick failed to consider the entirety of her social security file and did not afford appropriate weight to the opinions of her treating doctor. The court explained that the approval of Social Security benefits is not conclusive on whether a claimant is also disabled under the terms of an ERISA plan. In addition, plan administrators do not need to accord special weight to the opinions of a claimant’s physician, nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation.
Hialeah Anesthesia Specialists, LLC v. Coventry Health Care of Florida, Inc., No. 16-CV-25194, 2017 WL 2821504 (S.D. Fla. June 29, 2017) (Judge Darrin P. Gayles). The court granted Plaintiff’s motion to remand after applying the Connecticut State Dental test since the parties’ dispute is wholly over the rate of payment and falls outside the scope of section 502(a) of ERISA.
Aviation West Charters, LLC v. United Healthcare Insurance Company, et al., No. 1: 16 CV 210, 2017 WL 2838474 (N.D. Ohio June 30, 2017) (Judge Donald C. Nugent). In this dispute between a provider and insurance company of the payment of air ambulance services, the court found that United failed to comply with the time limits for appeals and wrongly failed to consider Angel MedFlight’s second appeal materials. Under the terms of the Plan a “second level appeal request must be submitted within 180 days from receipt of the first level appeal decision.” The time for appeal is measured from the day Angel MedFlight received the first level appeal decision. Although the record does not show when Angel MedFlight received the decision, since it was sent by first class mail, it was probably received by Angel MedFlight within the usual delivery time of up to 3 business days. 180 days from the assumed receipt date means that the submission of the second level appeal was timely. Case remanded to Defendant to consider the second appeal.
Prudential Ins. Co. of Am. v. White, No. 1:16-CV-1094, 2017 WL 2834459 (M.D. Pa. June 29, 2017) (Judge Yvette Kane). In this dispute over life insurance proceeds where the named beneficiary is alleged to have murdered the insured and her next of kin in the same incident, and there is a question as to whether ERISA preempts state simultaneous death statutes, the court found that Prudential’s Interpleader Complaint is properly brought and that Prudential should be discharged from future liability after payment of the proceeds of the Death Benefit into the Court’s Registry.
Collins v. Unum Life Ins. Co. of Am., No. 16-1636, __F.App’x__, 2017 WL 2875159 (4th Cir. July 6, 2017) (Before GREGORY, Chief Judge, and NIEMEYER, and HARRIS, Circuit Judges). The insured was a 17-year Veteran who served in dangerous and stressful situations and suffered from PTSD, Major Depressive Disorder, Generalized Anxiety Disorder, and chronic traumatic encephalopathy. He was found dead in his car with a gunshot wound to his head and his death was ruled to be a suicide. The court affirmed the district court’s order granting summary judgment to Unum and held that Unum reasonably interpreted the life insurance policy’s suicide exclusion to encompass insane suicide.
Metropolitan Life Insurance Company v. Waddell, No. 16-15321, __F.App’x__, 2017 WL 2874514 (11th Cir. July 6, 2017) (Before HULL, JULIE CARNES, and JILL PRYOR, Circuit Judges). The court affirmed the district court’s determination in this interpleader action that the life insurance proceeds are payable to the insured’s surviving spouse since there was no beneficiary designation on file and she was first in line. The insured’s son produced a beneficiary designation form that the insured allegedly signed eleven days before his death and which named the son as a beneficiary, but there was no evidence the insured submitted the form to MetLife before his death.
Hillenbrand v. Wellmark of South Dakota, Inc., No. 5:16-CV-05007-KES, 2017 WL 2821544 (D.S.D. June 29, 2017) (Judge Karen E. Schreier). In this case involving unpaid claims for treatment of Lyme disease, the court found that Wellmark’s decisions on the 26 internal appeals were based on a reasonable interpretation of the Plan and were supported by substantial evidence. The court granted Wellmark’s motion for summary judgment.
Daley v. Lockheed Martin Corp., No. 16-CV-07107-LHK, 2017 WL 2834130 (N.D. Cal. June 30, 2017) (Judge Lucy Koh). The court granted Defendants’ motion to dismiss Plaintiff’s First Amended Complaint because although Plaintiff states in her opposition that she is alleging a claim under Section 404 of ERISA for breach of fiduciary duty, Plaintiff’s FAC does not contain any citation or reference to ERISA; and, even assuming that Plaintiff’s FAC adequately referenced ERISA, it is nonetheless deficient because Plaintiff fails to plausibly allege an ERISA claim. The FAC does not contain any allegations that Defendants are fiduciaries or that they injured the Plan or Plan assets.
Osberg v. Foot Locker, Inc., Foot Locker Retirement Plan, No. 15-3602-CV, __F.3d__, 2017 WL 2871358 (2d Cir. July 6, 2017) (Before: WINTER, CABRANES, and LYNCH, Circuit Judges). The court affirmed the district court’s award of equitable relief for Defendants’ violations of §§ 102 and 404(a) of ERISA. The court considered and rejected Defendants’ arguments that the district court erred by: (1) awarding relief to plan participants whose claims were barred by the applicable statute of limitations; (2) ordering class-wide relief on participants’ § 404(a) claims without requiring individualized proof of detrimental reliance; (3) concluding that mistake, a prerequisite to the equitable remedy of reformation, had been shown by clear and convincing evidence as to all class members; and (4) using a formula for calculating relief that resulted in a windfall to certain plan participants.
Everette v. Liberty Life Assurance Company of Boston, No. CV TDC-16-1248, 2017 WL 2829673 (D. Md. June 29, 2017) (Judge Theodore D. Chuang). The court denied Plaintiff’s claim for statutory penalties under 29 U.S.C. § 1132(c) because of Liberty’s alleged failure to produce its claim notes in a timely manner. Upon consideration of an affidavit from Paula McGee (Liberty Life Litigation Manager) and examination of the claim notes, the court declined to exercise its discretion to impose a statutory penalty because there was no prejudice or bad faith.
Cannella v. Boone, No. 5:15-CV-258 (MTT), 2017 WL 2872423 (M.D. Ga. July 5, 2017) (Judge Marc T. Treadwell). The court dismissed the Trustees’ ERISA claim against Plaintiff, a widow who allegedly continued to receive her late husband’s monthly pension payments for 22 months, since the record does not demonstrate that any of the pension funds remain or that there are any traceable proceeds. The Trustees acknowledged at the hearing that there is no meritorious claim for an ERISA remedy based on Montanile v. Board of Trustees of National Elevator Industry Health Benefit Plan, 136 S. Ct. 651 (2016).


CITY of EVERETT and STATE of WASHINGTON, DEPARTMENT of LABOR AND INDUSTRIES, Respondents.
Collateral estoppel and res judicata are common law doctrines that were, for centuries, applied solely to common law claims. The twentieth century rise of the administrative state brought with it an explosion of executive branch quasi-judicial decision-making. Eventually, the urge to apply common law principles in these otherwise statutorily-created forums proved irresistible. But the apples to oranges application of common law doctrines to statutory claims litigated in executive branch forums was-by its very nature- never guaranteed universal success. Many times, such applications fit nicely and a sound and fair resolution was achieved. Other times, however, the apples to oranges application resulted in a distasteful fruit salad of injustice. This case falls into the latter category.
Michael Weaver, a long-time Everett firefighter, applied for compensation resulting from that which he alleged-and the law presumes-to be a work-related occupational disease. Weaver's petition is serious to him and his family; he suffers from brain cancer that has made it impossible for him to work and that will ultimately claim his life. The Board of Industrial Insurance Appeals ruled that either collateral estoppel or res judicata barred his claim. The superior court unfortunately adopted the same either/or analysis and also unfortunately ruled that Weaver's application was barred. But a careful review of these two distinct common law doctrines-conducted pursuant to the analytical framework mandated by our Supreme Court-reveals that neither doctrine, properly applied, bars Weaver's entreaty. Accordingly, we reverse.
Michael Weaver was employed between 1996 and 2014 by the City of Everett (the City) as a firefighter. In June 2011, Weaver noticed a mole on the skin of his left shoulder. The mole was removed and the resulting biopsy revealed that it contained a malignant melanoma.
Shortly thereafter, Weaver underwent surgery to remove the melanoma. After a period of recovery, Weaver returned to his employment as a firefighter. The treatment and surgery caused Weaver to miss nearly five weeks of work, losing the opportunity to earn just under $10, 000 in wages.
While in recovery, in July 2011, Weaver filed a pro se application for temporary total disability benefits from the City, a self-insured entity for workers' compensation purposes. His application alleged that the malignant melanoma on his shoulder arose from his 15 years of working as a firefighter. He requested compensation for the nearly 5 weeks of wages that he had been unable to earn due to the medical treatment.
After initially granting Weaver's application, the Department of Labor and Industries (the Department) reconsidered its decision and denied his application. Thereafter, Weaver, through counsel, appealed the Department's denial order to the Board of Industrial Insurance Appeals (the Board). A hearing before an administrative law judge (ALJ) resulted. The City presented the published deposition testimony of two medical specialists, Dr. Robert Levenson, an oncologist, and Dr. John Hackett, a dermatologist.
Weaver's counsel, presumably due to monetary considerations, chose not to present the testimony of Dr. David Aboulafia, Weaver's treating oncologist. Nor did Weaver's attorney present testimony from a medical expert in oncology or dermatology. Instead, Weaver's counsel presented the published deposition testimony of Dr. Kenneth Coleman, a doctor with a practice in family and emergency medicine, but with no expertise in melanoma generally or in melanoma arising from occupational exposures specifically.
The ALJ recommended that the Board affirm the Department's order denying Weaver's application. In February 2013, the Board adopted the ALJ's recommendation and issued a final order denying Weaver's application.
After the Board's ruling, Weaver's counsel withdrew. Weaver filed a pro se review petition in the superior court. Ten months later, with Weaver still unrepresented and no progress being made in the appeal, the parties entered into a stipulation and agreed order of dismissal. Weaver's petition for review was dismissed in late 2013.
In January 2014, Weaver began to have difficulty with mental processing and word finding. A magnetic resonance imaging test revealed a three-centimeter mass, a tumor, in the left frontal lobe of his brain.
Weaver immediately underwent surgery and the tumor was removed. The resulting biopsy diagnosed the tumor as a metastatic malignant melanoma, a form of cancer developing out of a primary cancer site. The logical conclusion was that the brain tumor had metastasized out of the malignant melanoma that Weaver noticed on his shoulder in 2011.
Weaver did not return to work as a firefighter after the surgery. He was estimated to have a 20 to 30 percent chance of survival over the next two years.
In July 2014, Weaver, now represented by counsel, submitted an application for workers' compensation from the City, seeking permanent total disability benefits. The application alleged that he suffered from a malignant melanoma located on his "upper back/scapula area, w/ cancer spreading to brain." He alleged that the condition arose from "sun exposure during outdoor firefighting and training from 1996 forward."
The Department denied Weaver's application on the basis that it had already rejected his application for compensation based on the malignant melanoma discovered on his shoulder and that the metastasized melanoma had arisen from the earlier melanoma.
Weaver sought an administrative appeal and, in the resulting proceeding, the ALJ recommended that the Board affirm the Department's rejection of Weaver's application for permanent total disability benefits. The executive branch official concluded that the common law doctrines of res judicata and collateral estoppel barred Weaver's application. The board, an executive branch agency, adopted the ALJ's proposed decision and order as its final order.
Weaver filed a notice of appeal to the superior court. The superior court affirmed the Board's order and denied Weaver's petition, ruling that either collateral estoppel or res judicata barred his claim.
It is necessary for us to determine whether the superior court erred by affirming the Board's application of the doctrines of collateral estoppel and res judicata to bar Weaver from pursuing his claim for compensation under the Industrial Insurance Act, Title 51 RCW.
At the outset, we note that collateral estoppel and res judicata are equitable, court-created doctrines established at common law. See J.M. Weatherwax Lumber Co. v. Ray, 38 Wash. 545, 80 P. 775 (1905); see also Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 806, 842 (1985). We further note that the Industrial Insurance Act, as set forth below, was enacted by our legislature in 1911 with the intent to abolish the common law cause of action then-available to workers and establish in its place a distinct statutory scheme aimed at providing workers "sure and certain relief." Laws of 1911, ch. 74, § 1, at 345.
Accordingly, in resolving the matter before us, we proceed with due caution so as to not unduly shoehorn common law concepts into a statutory scheme wherein our legislature did not specifically call for them to apply or may not otherwise have intended for their application.
Collateral estoppel and res judicata are affirmative defenses. Lemond v. Dep't of Licensing, 143 Wn.App. 797, 805, 180 P.3d 829 (2008) (collateral estoppel) (quoting State Farm Mut. Auto. Ins. Co. v. Avery, 114 Wn.App. 299, 304, 57 P.3d 300 (2002)); Davignon v. Clemmey, 322 F.3d 1, 17 (1st Cir. 2003) (res judicata). The proponent of either doctrine has the burden of proof. Lemond, 143 Wn.App. at 805 (quoting State Farm Mut. Auto. Ins. Co., 114 Wn.App. at 304); Davignon, 322 F.3d at 17.
Whether collateral estoppel or res judicata apply to preclude litigation is a question of law that we review de novo. Lemond, 143 Wn.App. at 803 (collateral estoppel) (citing State v. Vasquez, 109 Wn.App. 310, 314, 34 P.3d 1255 (2001), aff'd, 148 Wn.2d 303, 59 P.3d 648 (2002)); Lynn v. Dep't of Labor & Indus., 130 Wn.App. 829, 837, 125 P.3d 202 (2005) (res judicata) (citing Kuhlman v. Thomas, 78 Wn.App. 115, 119-20, 897 P.2d 365 (1995)). In reviewing a superior court ruling in a workers' compensation matter, we apply a standard of review akin to our review of any other superior court trial judgment. Rogers v. Dep't of Labor & Indus., 151 Wn.App. 174, 180-81, 210 P.3d 355 (2009).
On appeal, both the Department and the City urge us to affirm the decision of the superior court on the basis that they established that collateral estoppel and res judicata apply to preclude litigation on Weaver's application.We address each doctrine in turn.
As an initial matter, the Department and the City contend that they established that collateral estoppel bars Weaver's application for permanent total disability benefits. We disagree.
The principles underlying the common law doctrine of collateral estoppel are well set forth in our opinion in Lemond.
[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.
Restatement (Second) of Judgments § 27 (1982). Collateral estoppel prevents relitigation of issues in a subsequent claim or cause of action, whereas res judicata prevents a second assertion of the same claim or cause of action. Seattle-First Nat'l Bank v. Kawachi, 91 Wn.2d 223, 225-26, 588 P.2d 725 (1978). Thus, res judicata is generally referred to as claim preclusion, and collateral estoppel as issue preclusion. Trautman, supra, at 829.
The purpose of the doctrine of collateral estoppel is to promote judicial economy by avoiding relitigation of the same issue, to afford the parties the assurance of finality of judicial determinations, and to prevent harassment of and inconvenience to litigants. Hanson, 121 Wn.2d at 561. These purposes are balanced against the important competing interest of not depriving a litigant of the opportunity to adequately argue the case in court. Restatement, supra, § 27 cmt. c. at 252.
"(1) the issue decided in the prior adjudication is identical with the one presented in the second action; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with the party to the prior adjudication; and (4) application of the doctrine does not work an injustice."
Thompson v. Dep't of Licensing, 138 Wn.2d 783, 790, 982 P.2d 601 (1999) (quoting Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262-63, 956 P.2d 312 (1998)). Because all four elements must be proved, the proponent's failure to establish any one element is fatal to the proponent's claim.
143 Wn.App. at 803-05 (emphasis added).
Here, the Department has established the first three elements of collateral estoppel. Both of Weaver's applications for compensation regarded the identical issue of whether the malignant melanoma diagnosed on his left shoulder was caused by his employment as a firefighter. In addition, Weaver's application for temporary total disability benefits ended in a final judgment on the merits (the dismissal of his appeal). Additionally, the Department and the City were both parties to Weaver's application for temporary total disability benefits.
The remaining question is whether the Department and the City proved the fourth element of collateral estoppel-that application of the doctrine would not work an injustice against Weaver.
"Collateral estoppel is, in the end, an equitable doctrine that will not be applied mechanically to work an injustice." Hadley v. Maxwell, 144 Wn.2d 306, 315, 27 P.3d 600 (2001). Application of the doctrine works an injustice upon a party when, during an earlier proceeding, that party did not have a '"full and fair opportunity'" to litigate the contested issue. Lemond, 143 Wn.App. at 803-04 (internal quotation marks omitted) (quoting Barr, 124 Wn.2d at 324-25). Indeed, for collateral estoppel to apply, the party must have had "sufficient motivation for a full and vigorous litigation of the issue." Hadley, 144 Wn.2d at 315.
Our Supreme Court's decision in Hadley is both controlling and instructive. In Hadley, two automobiles collided with one another. One of the drivers, Helen Maxwell, was issued a $95 citation for an improper lane-travel traffic infraction. Thereafter, Maxwell, pro se, unsuccessfully contested the citation before the district court. She did not call any witnesses on her behalf nor did she elect to appeal the district court's adverse decision to the superior court. Hadley, 144 Wn.2d at 308-09. In a subsequent personal injury lawsuit arising from the collision, the trial court ruled that Maxwell was collaterally estopped from denying her violation of the lane change statute. This was so, the trial court ruled, because Maxwell failed to appeal the district court's decision that she had committed the infraction. Hadley, 144 Wn.2d at 309-10. In the resulting trial, Maxwell was found liable for $136, 000 in damages. Hadley, 144 Wn.2d at 310.
To determine whether an injustice will be done, respected authorities urge us to consider whether "the party against whom the estoppel is asserted [had] interests at stake that would call for a full litigational effort." 14 Lewis H. Orland & Karl B. Tegland, Washington Practice: Trial Practice, Civil § 373, at 763 (5th ed.1996); see also Parklane hosiery Co. v. Shore], 439 U.S. [322, ] 33O[, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)] (holding incentive to vigorously contest cases with small or nominal damages at stake could be a reason not to apply collateral estoppel); Beale v. Speck, 127 Idaho 521, 903 P.2d 110, 119 (1995) (holding collateral estoppel for misdemeanor traffic offenses generally inappropriate); Rice v. Massalone, 554 N.Y.S.2d 294, 160 A.D.2d 861 (1990) (holding collateral estoppel inappropriate after an administrative determination of liability for a traffic accident).
Hadley, 144 Wn.2d at 312. The Supreme Court adopted this consideration and instructed that collateral estoppel "is not generally appropriate when there is nothing more at stake than a nominal fine." Hadley, 144 Wn.2d at 315. Turning to Maxwell's circumstance, the court determined that "the incentive to litigate was low-Maxwell was at risk $95." Hadley, 144 Wn.2d at 312. The court accordingly ruled that, in the district court proceeding, Maxwell lacked sufficient motivation to fully and vigorously litigate whether she, in fact, committed the traffic infraction. Thus, the Supreme Court held, the superior court erred by precluding her from contesting that issue at the subsequent civil trial.
Weaver's circumstances are strikingly similar to those in Hadley. As with Maxwell's nominal incentive to litigate a $95 citation before the district court, Weaver's incentive to fully and vigorously litigate during the proceeding on his application for temporary compensation was low. Indeed, Weaver's initial application for compensation sought only temporary total disability benefits, those wages equivalent to five weeks of missed work. Weaver anticipated that he would-and he did-return to his duties as a firefighter after completing his recovery. He was not then, as he is now, confronted by a brain cancer that is alleged to have left him permanently disabled, unable to work, with significant out-of-pocket medical expenses, and with a real possibility of death arising from the cancer.


awarding mother $58,787.99 in attorney fees.
child support obligations. McKinney's Family Court Act § 438(a).
attorney's experience, ability, and reputation.
the proceeding at bar for enforcement of child support.
**66 Dominic A. Barbara, Garden City (Maxine Last of counsel), for appellant.
Before MILLER, J.P., and O'BRIEN, COPERTINO and PIZZUTO, JJ.
notice of appeal from the judgment (see, CPLR 5520[c] ).
to the Family Court, Nassau County, for a hearing consistent herewith.
her counsel fees in the amount of $58,787.99.
award of counsel fees in proceedings for the support of children.
564, 595 N.Y.S.2d 330; Shrauger v.Shrauger, supra; Sampson v. Glazer, supra ).
than the Family Court proceedings at bar for the enforcement of child support.
We therefore remit the matter for a new hearing.
Child support action was brought. The Family Court, Nassau County, Koenig, J., awarded child support arrears and counsel fees to mother, and father appealed. The Supreme Court, Appellate Division, held that: (1) terms of parties' stipulation, as well as Family Court Act, permitted mother to seek award of counsel fees in child support proceedings since father failed to make the agreed upon payment of $100,000 to settle all past and future child support obligations, and (2) trial court improvidently exercised its discretion in awarding mother $58,787.99 in attorney fees.
Terms of parties' stipulation, as well as Family Court Act, permitted mother to seek award of counsel fees in child support proceedings since father failed to make the agreed upon payment of $100,000 to mother to settle all past and future child support obligations. McKinney's Family Court Act § 438(a).
Award of reasonable attorney fees is a matter within sound discretion of the trial court and factors to be considered include parties' ability to pay, nature and extent of the services rendered, complexity of the issues involved, and attorney's experience, ability, and reputation.
Trial court improvidently exercised its discretion in awarding mother attorney fees in the amount of $58,787.99 in child support proceedings; trial court awarded mother the entire amount requested by her attorneys without indicating that it had considered the relevant factors for determining reasonable attorney fee award and court awarded counsel fees in connection with matters other than the proceeding at bar for enforcement of child support. **66 Dominic A. Barbara, Garden City (Maxine Last of counsel), for appellant.
Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum of counsel), for respondent.
*406 In related proceedings, inter alia, for child support pursuant to Family Court Act article 4, the father appeals from a judgment of the Family Court, Nassau County (Koenig, J.), dated December 8, 1994, which, after a hearing, awarded child support arrears and counsel fees to the mother. The father's notice of appeal from the order entered December 1, 1994, is deemed a premature notice of appeal from the judgment (see, CPLR 5520[c] ).
ORDERED that the judgment is modified by deleting the provision thereof which awarded counsel fees to the mother in the amount of $58,787.99; as so modified, the judgment is affirmed, with costs to the father, and the matter is remitted to the Family Court, Nassau County, for a hearing consistent herewith.
Pursuant to the terms of the parties' stipulation in open court on November 29, 1993, the father agreed, inter alia, to pay $100,000 to the mother by March 1, 1994, to settle all past and future child support obligations. The father failed to make this $100,000 payment, and the Family Court, after a hearing, awarded child support arrears to the mother in the amount of $60,000 and awarded her counsel fees in the amount of $58,787.99.
 Contrary to the father's contention, we conclude that the terms of the parties' stipulation permitted the mother to seek an award of counsel fees in the child support proceedings at bar since he failed to make the agreed-upon payment of $100,000. In addition, Family Court Act § 438(a) authorizes an award of counsel fees in proceedings for the support of children.
 The award of reasonable counsel fees is a matter within the sound discretion of the trial court (see, DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 524 N.Y.S.2d 176, 518 N.E.2d 1168; Matter of Aronesty v. Aronesty, 202 A.D.2d 240, 608 N.Y.S.2d 444; *407 Shrauger v. Shrauger, 146 A.D.2d 955, 537 N.Y.S.2d 84; Sampson v. Glazer, 109 A.D.2d 831, 486 N.Y.S.2d 354). The factors to be considered include the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and counsel's experience, ability, and reputation (see, Matter of Jurs v. Jurs, 191 A.D.2d 564, 595 N.Y.S.2d 330; Shrauger v.Shrauger, supra; Sampson v. Glazer, supra ). We conclude that the court improvidently exercised its discretion in determining the amount of the counsel fee award. The court awarded the mother the entire amount requested by her attorneys for their services since 1992 without indicating that it had considered the relevant factors. Moreover, the record indicates that the court awarded counsel fees in connection with matters other than the Family Court proceedings at bar for the enforcement of child support. We therefore remit the matter for a new hearing.