An employee of a government contractor at a defense base in Korea drowned during a Saturday outing. His employer considered all employees to be in the course of regular occupation from the time they left the United States until they returned, and expected employees to seek recreation away from the job site. On stipulated facts, the Deputy Commissioner, Bureau of Employees' Compensation, found that death arose out of and in the course of employment, and awarded damages pursuant to the Longshoremen's and Harbor Workers' Compensation Act. The District Court affirmed the award, which the Court of Appeals reversed.
Held: Since the Act provides that the Deputy Commissioner's order may be set aside by a reviewing court only if not in accordance with law, and since the Deputy Commissioner correctly applied the standard of O'Leary v. Brown-Paciffc-Maon, Inc., 340 U. S. 504, that the conditions of employment create the "zone of special danger" out of which the injury arose, his holding cannot be said to be irrational or without substantial evidence and should be upheld.
Certiorari granted; 327 F.2d 1003 reversed.
Robert C. Ecker drowned during a Saturday outing while boating on a South Korean lake. At the time of his death, he was employed at a defense base in South Korea by the respondent, Smith, Hinchman & Grylls Associates, a government contractor.
The decedent had been hired in the United States under an oral contract the terms of which provided that he was to be transported to South Korea at his employer's expense, remain there for two years, and then, at his employer's expense, be transported back to the United States. The employer paid his rent and provided him with a per diem expense allowance for each day of the year, including weekends and holidays, to cover "the necessary living expenditures in the Korean economy." He worked on a "365-day per year basis . . . subject to call to the job site at any time." He "quite often" worked on Saturdays and Sundays and at other times outside the normal work day. The employer considered all its employees to be "in the course of regular occupation from the time they leave the United States until their return." The employer expected the decedent and its other employees to seek recreation away from the job site on weekends and holidays.
Based upon the above stipulated facts, the Deputy Commissioner of the Bureau of Employees' Compensation, United States Department of Labor, petitioner herein, determined "that the accident and the subsequent death of the decedent arose out of and in the course of employment." 222 F.Supp. 4, 6. He therefore awarded death benefits to the decedent's widow and a minor child in accordance with the terms of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq. (1958 ed.), as extended by the Defense Base Act, 55 Stat. 622, as amended, 42 U.S.C. § 1651 et seq. (1958 ed.). The employer and its insurance carrier, respondents herein, then brought this action in the United States District Court for the Middle District of Florida to set aside and enjoin the enforcement of this compensation award. The District Court affirmed the compensation award and granted the Deputy Commissioner's motion for summary judgment. 222 F.Supp. 4.
A panel of the Court of Appeals for the Fifth Circuit summarily reversed and set aside the award. 327 F.2d 1003. But compare the later decision of another panel of the Fifth Circuit in O'Keeffe v. Pan American World Airways, Inc., 338 F.2d 319.
"[i]n any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of this chapter."
Finally, § 21(b), 33 U.S.C. § 921(b) (1958 ed.), provides that the Deputy Commissioner's compensation order may be suspended and set aside by a reviewing court only "[i]f not in accordance with law."
In cases decided both before and after the passage of the Administrative Procedure Act, 60 Stat. 237, as amended, 5 U.S.C. § 1001 et seq. (1958 ed.), the Court has held that the foregoing statutory provisions limit the scope of judicial review of the Deputy Commissioner's determination that a "particular injury arose out of and in the course of employment." Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469, 330 U. S. 477-478; O'Leary v. Brown-Pacific-Maxon, Inc., 340 U. S. 504, 340 U. S. 507-508.
immaterial that the facts permit the drawing of diverse inferences. The Deputy Commissioner alone is charged with the duty of initially selecting the inference which seems most reasonable, and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. . . . Moreover, the fact that the inference of the type here made by the Deputy Commissioner involves an application of a broad statutory term or phrase to a specific set of facts gives rise to no greater scope of judicial review. . . ."
Cardillo v. Liberty Mutual Ins. Co., supra, at 330 U. S. 478.
The rule of judicial review has therefore emerged that the inferences drawn by the Deputy Commissioner are to be accepted unless they are irrational or "unsupported by substantial evidence on the record . . . as a whole." O'Leary v. Brown-Pacific-Maxon, Inc., supra, at 340 U. S. 508.
"a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair,  A.C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the 'obligations or conditions' of employment create the 'zone of special danger' out of which the injury arose."
"so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment."
it shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the claim comes within the provisions of this chapter."
§ 20(a), 33 U.S.C. § 920(a).
"that the Deputy Commissioner was correct in his finding that the conditions of the deceased's employment created a zone where the deceased Ecker had to seek recreation under exacting and unconventional conditions, and that, therefore, the accident and death of the decedent arose out of and in the course of employment."
"It was reasonable to conclude that recreational activities contributed to a higher efficiency of the employer's work, and that, when conducted in the restricted area of employment, on a work day, so to speak, and in a manner not prohibited by the employer, such activity was an incident of the employment."
The dissent, while giving lip service to the Brown-Pacific-Maxon standards, would reverse the determination of the Deputy Commissioner and District Court here, as well as the Deputy Commissioner and the Courts of Appeals in other cases, that the several accidents involved were within the "zone of special danger." As Brown-Pacific-Maxon made clear, it is just this type of determination which the statute leaves to the Deputy Commissioner subject only to limited judicial review. Indeed, this type of determination, depending as it does on an analysis of the many factors involved in the area of the employment, would seem to be one peculiarly for the Deputy Commissioner.
The District Court therefore correctly upheld the determination of the Deputy Commissioner, and the Court of Appeals erred in summarily reversing its judgment. Cf. O'Keeffe v. Pan American World Airways, Inc., 338 F.2d 319 (C.A.5th Cir. 1964); Pan-American World Airways, Inc. v. O'Hearne, 335 F.2d 70 (C.A.4th Cir. 1964); Self v. Hanson, 305 F.2d 699 (C.A.9th Cir. 1962); Hastorf-Nettles, Inc. v. Pillsbury, 203 F.2d 641 (C.A.9th Cir. 1953).
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK and MR. JUSTICE WHITE join, dissenting.
Ecker was employed in Seoul, Korea, as an assistant administrative officer for Smith, Hinchman & Grylls Associates, Inc., an engineering management concern working under contracts with the United States and Korean Governments. His duties were restricted to Seoul, where he was responsible for personnel in the stenographic and clerical departments. He was subject to call at the job site at any time, but the usual work week was 44 hours, and employees were accustomed to travel far from the job site on weekends and holidays for recreational purposes. Ecker did not live at the job site; he was given an allowance to live on the economy in Seoul. On his Memorial Day weekend, he went to a lake 30 miles east of Seoul where a friend of his (not a co-employee) had a house. Ecker intended to spend the holiday there with his friend and another visitor. Their Saturday afternoon project was to fill in the beach in front of the house with sand, but none was readily available. In order to obtain it, the three crossed the lake in a small aluminum boat to a sandy part of the shore. There, they filled the boat with a load of sand, intending to transport it back to the house. The return trip, however, put Archimedes' Principle to the test; in the middle of the lake, the boat capsized and sank. Two of the three men drowned, including Ecker.
"accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment."
The Court holds, per curiam, that Ecker died in the course of his employment. I see no meaningful interpretation of the statute which will support this result except a rule that any decision made by a Deputy Commissioner must be upheld (compare Rogers v. Missouri Pac. R. Co., 352 U. S. 500). That interpretation, although meaningful, is unsupportable.
danger' out of which the injury arose."
340 U.S. at 340 U. S. 507.
"We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own."
He went on to state that the standard of review to be applied to the Deputy Commissioner's finding that the employee died in the course of his employment was the same as that set out in Universal Camera Corp. v. Labor Board, 340 U. S. 474, for review of Labor Board decisions. Mr. Justice Frankfurter wrote both Universal Camera and Brown-Pacific-Maxon, and delivered the opinions on the same day. Reliance upon Universal Camera in Brown-Pacific-Maxon shows beyond doubt that the Court was not establishing a rule that any compensation award by a Deputy Commissioner would be automatically upheld, for it was the whole purpose of Universal Camera to effectuate congressional intent that the courts expand their scope of review over administrative decisions. That opinion defined judicial responsibility for examining the whole record in Labor Board cases, and not just those parts of the record which tended to support the Board. It remains today as the leading judicial guide for administrative review, and the most prominent directive to lower courts not to underestimate their responsibilities in this regard. I think it untenable to read a case which purports to apply the Universal Camera standard of review as embodying a philosophy of judicial abdication.
consistent with the statutory purpose of compensating all job-connected injuries on the actual job site and, additionally, those injuries off the job site which result from the "special" dangers of the employment. In the sense that both results would have been supportable, the review of the choice actually made by the Deputy Commissioner was treated as review of a finding of fact.
In the case before us, the Deputy Commissioner's ruling is not consistent with the statutory purpose. The injury did not take place on the actual job site, and it did not arise out of any special danger created by the job. In no sense can it be said that Ecker's job created any "special" danger of his drowning in a lake, or, more particularly, of his loading a small boat with sand and capsizing it. Nothing indicates that the lake was rougher, the boat tippier, or the sand heavier than their counterparts in the United States. If there were "exacting and unconventional conditions" in Korea, it does not appear that the lake, boat, or sand was one of them. There is nothing more than a "but for" relationship between the accident and the employment. To permit the award of compensation to stand reads the "job-connected" emphasis right out of the statute, an emphasis which is clearly there. Only injuries "arising out of" the employment are compensated. A disease or infection is covered if it arises "naturally out of such employment." Injuries willfully inflicted by third persons upon an employee are covered only if inflicted "because of his employment." A "but for" relationship between the injury and the employment should not, in itself, be sufficient to bring about coverage.
a case in which Ecker smashed his hand in a filing cabinet while at the office and one in which he tripped over a pebble while off on a weekend hike. In the first case, Ecker's injury would have arisen out of and in the course of his employment, whereas the statute would not apply to the second case unless the injury were traceable to some special danger peculiar to the employment, which was clearly not the case. Thus, if, while off on that same weekend hike, Ecker stepped on a mine left over from the Korean conflict, a different result could follow.
This view of the statute makes far more sense to me than the view adopted by the Court as indicated by the result in this case and its approving citation of such cases as Self v. Hanson, 305 F.2d 699, and Pan American World Airways, Inc. v. O'Hearne, 335 F.2d 70, cert. denied, 380 U.S. 950. It is difficult to determine just what such cases stand for. In Self v. Hanson, for instance, Miss Williams was in the company of a gentleman in a pick-up truck parked at the end of a breakwater on Guam Island at 11 o'clock in the evening. The gentleman said that he wanted to show her a ship in the harbor. Apparently they had been looking at it for over half an hour when the driver of another vehicle on the breakwater lost control and ran into the pick-up truck, causing Miss Williams spinal injuries. The Ninth Circuit upheld the Deputy Commissioner's ruling that she was injured in the course of her employment as a secretary on a Guam defense project.
hear argument and receive briefs on the merits. The Solicitor General has pointed out that "there are several thousands of injury cases reported annually" under this Act. [Footnote 4] He urged that this question be definitively resolved by this Court. Because of the importance placed by all parties upon resolution of the proper application of the Act to these cases, and because I do not believe Brown-Pacific-Maxon, supra, dictates the Court's result, I respectfully dissent from its decision to treat O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., summarily, from its decision on the merits in that case, and from its denial of certiorari in Pan-American World Airways, Inc. v. O'Hearne, 380 U.S. 950, and Pan American World Airways, Inc. v. O'Keeffe, 380 U.S. 951.
44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq. (1958 ed.).
55 Stat. 622, as amended, 42 U.S.C. § 1651 et seq. (1958 ed.).
See generally, Jaffe, Judicial Review: Question of Law, 69 Harv.L.Rev. 239 (1955).
Petition for certiorari in No. 307, p. 11.
Courts of Appeals. The Board's findings are entitled to respect, but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both."
Applying that test, I would not be inclined to reverse a Court of Appeals that disagreed with a Deputy Commissioner over findings as exotic as we have here.
* These problems are unlike those under the Federal Employers' Liability Act, where suits can be brought both in state and in federal courts (45 U.S.C. § 56) and where the law, poorly received by the judiciary, has been severely eroded. See Wilkerson v. McCarthy, 336 U. S. 53, 336 U. S. 68 et seq. (concurring opinion).
Smith, Hinchman & Grylls Associates, Inc.


Don W. Boyett, Bobby W. McDonald, Charles F.
John N. EHRMAN, Individually, Etc., et al., Defendants-Appellees.
Nos. 90-2104, 90-2105 and 90-2106.
As Amended April 27, 1992.
Armando Lopez, Lopez & Ramirez, Houston, Tex., W. Sherman Rogers, Washington, D.C., Gillis & Slogar, Houston, Tex., for Michael K. Topalian et al.
Don Jackson, Paul S. Wells, Vinson & Elkins, Houston, Tex., for Houston Petroleum Corp. & Richard O'Donnell.
Stephen W. Schueler, Charles M. Silverman, Neil A. Wasserstrom, Margraves, Kennerly & Schueler, Frank Pinedo, James Austin Pinedo, Pinedo, Cezeaux & Sweeney, Houston, Tex., for Rio Bravo Oil and Bert Gamble.
W. Roderick Johnson, Butler & Binion, Kevin F. Risley, Houston, Tex., for W. Roderick Johnson.
John R. Knight, Morris & Campbell, Houston, Tex., for Robert E. Eckis, Jr.
Frank Pinedo, James Austin Pinedo, Pinedo, Cezeaux & Sweeney, Houston, Tex., for counter plaintiff-appellee in No. 90-2105.
Kevin F. Risley, Butler & Binion, Houston, Tex., for Rockwood Ins.
Frank Pinedo, James Austin Pinedo, Pinedo, Cezeaux & Sweeney, Houston, Tex., for Ehrman and Ehrman Inv. Group in No. 90-2106.
W. Roderick Johnson, Houston, Tex., for W.R. Johnson and W.R. Johnson, P.C. in No. 90-2106.
Don Jackson, Vinson & Elkins, Houston, Tex., for O'Donnell and Houston Petroleum.
Dale Jefferson, D. John Leger, Houston, Tex., for Victor Russek and Russek Co.
Stephen W. Schueler, Neil A. Wasserstrom, Charles M. Silverman, Margraves, Kennerly & Schueler, Houston, Tex., for Bert Gamble and Rio Bravo Oil Co. in Nos. 90-2105 & 90-2106.
Before DUHE, WILLIAMS, and GARZA, Circuit Judges.
(viii) "other relief as may be just and proper."
Concluding that plaintiffs have failed to set forth specific facts and establish a genuine issue worthy of trial, we affirm the district court's summary judgment in favor of defendants.
Onshore was formed in September 1984 under Texas law for the purpose of raising funds for oil and gas drilling ventures. The enterprise was presented to potential investors as a tax shelter and a sound, legitimate investment vehicle. On September 26, 1984, Onshore entered into a Joint Venture Agreement with Defendant Houston Petroleum Company ("HPC"), Onshore agreeing to use its best efforts to raise a minimum subscription of $3,600,000 in capital contributions on or before December 31, 1984.
The defendants, general partners of Onshore, decided to raise this 3.6 million dollars by selling limited partnership units. Onshore actively began to solicit investors in November 1984. According to plaintiffs, Onshore's general partners represented to prospective investors that the Onshore offering was exempt from registration under the Security and Exchange Commission's Rule 506 of Regulation D. See 17 C.F.R. § 230.506 (1989).3 This Rule 506 exemption to the registration requirements of section 5 of the Securities Act of 1933 is limited to offerings made to not more than 35 non-accredited investors. See id. Although the Onshore offering was made primarily to accredited investors, defendants and their seller-agents allegedly offered and sold the Onshore securities to more than 35 non-accredited investors.
In their effort to obtain adequate financing, defendants printed at least two different offering memoranda, one dated September 30, 1984 and another dated November 30, 1984.4 The November 30, 1984 memorandum stated that the offering termination date--the date by which the partnership needed to raise a minimum subscription of $3,600,000 in capital contributions--was December 31, 1984.5 As that deadline approached, defendants were short of the minimum subscriptions required to continue the partnership. Rather than dissolving the partnership and reimbursing the limited partners as promised in the original offering memoranda, in January 1985 Onshore forwarded a document to each investor who had subscribed on or before December 31, 1984 which permitted each subscriber to rescind or affirm her respective purchase of Onshore interests. To compensate for Onshore's subscription deficiency, the general partners then allegedly decided to pledge the limited partners' promissory notes as security for a bank loan made to Onshore by Interdiscount Ltd. ("IDL") and guaranteed by Ehrman Investment Group, Ltd. ("EIG").6 These loan proceeds were allegedly spent financing the Onshore venture.
Plaintiffs filed their original complaint on December 3, 1987. On December 18, 1987, they filed their first amended complaint, alleging that, with the help of others, Onshore's general partners--EIG and W. Roderick Johnson--engaged in a scheme to defraud them in the sale of Onshore limited partnership securities.
Defendants filed motions to dismiss, and, with the exception of claims brought under section 17 of the Securities Act of 1933, the district court denied these motions. Plaintiffs were directed to amend their complaint to specifically refer to the defendants against whom allegations were being made and comply with the court's RICO standing order. Discovery commenced. In August 1988, plaintiffs filed their Second Amended Complaint, which the district court struck.7 In September 1988, plaintiffs filed a Motion for Leave to File a Second Amended Complaint or in the Alternative a Motion for Joinder of Persons Needed for Just Adjudication. In October 1988, the district court held a pre-trial conference on matters including this motion--a motion the district court ultimately denied.
In January 1989, the court considered a joint motion to amend the scheduling order of August 1988, and extended the discovery cut-off date to April 1989. At this January hearing, the court admonished all counsel to cooperate in discovery and reserved a ruling on pending motions for sanctions. The court set July 28, 1989 for the hearing and disposition of pending motions.
Defendants filed motions for summary judgment on June 15, 1989. Although responses to these motions were due on July 10, 1989, plaintiffs did not file their responses until July 27, 1989. Plaintiffs were also late in filing their motions for summary judgment. In October 1989, the district court granted summary judgment in favor of the Ehrman defendants and against plaintiffs. In December 1989, the district court first granted summary judgment in favor of EIG, Onshore, and Rockwood on their counterclaims against certain plaintiffs. Later that same month, the district court entered its final judgment, granting summary judgment to all the remaining defendants. The district court also held a hearing on pending motions for sanctions and granted defendants' motion for sanctions against some of the plaintiffs and against their counsel, Mr. Armando Lopez.
Plaintiffs seek reversal of the district court's grant of summary judgment, and they have pinned a tail of reversible-error assertions to this summary judgment challenge.8 Defendants deny plaintiffs' allegations, and they allege that even if the facts were true, plaintiffs' causes of action are time-barred by (i) the one and three-year statutes of limitations applicable to claims brought under the Securities Act of 1933, (ii) the two-year statute of limitations applicable to claims under the Securities Exchange Act of 1934, and (iii) the fact that plaintiffs failed to state a claim under RICO. Some of the defendants deny participating in the offer and sale of the units, and they further deny that they had any fiduciary or other duty to any of the plaintiffs.
(a) Did the district court err in granting defendants' motions for summary judgment?
(b) Did the district court err in granting defendants' motions for summary judgment on the counterclaims against plaintiffs?
(c) Did the district court err in denying plaintiffs' Motion to File a Second Amended Complaint or, in the Alternative, a Motion for Joinder of Persons Needed for Just Adjudication?
(d) Did the district court dismiss IDL as a party solely as a Rule 11 sanction to punish plaintiffs for allegedly filing a frivolous claim and, if so, is the district court in contempt of the Fifth Circuit's mandate to reinstate IDL as a party?
(e) If this court should reverse the district court, is there sufficient evidence in the record to justify reassignment of this case to another judge?
(f) Should this court grant Rockwood's Motion for Sanctions?
* Since this case is an appeal from a grant of summary judgment, this court reviews the record de novo. See International Shortstop, Inc. v. Rally's, 939 F.2d 1257, 1263 (5th Cir.1991). Our inquiry as to whether the district court properly granted summary judgment in defendants' favor is guided by Rule 56 of the Federal Rules of Civil Procedure and three Supreme Court cases. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2550, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2505-14, 91 L.Ed.2d 202 (1986); Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
Summary judgment is proper if the movant demonstrates that there is an absence of genuine issues of material fact. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Such a showing entitles the movant to summary judgment as a matter of law. See Fed.R.Civ.P. 56(c). The movant accomplishes this by informing the court of the basis for its motion, and by identifying portions of the record which highlight the absence of genuine factual issues. See generally id. Once the movant produces such evidence, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial--that is, the nonmovant must come forward with evidence establishing each of the challenged elements of its case for which the nonmovant will bear the burden of proof at trial. See Catrett, 477 U.S. at 322, 106 S.Ct. at 2552.
The district court's opinion, organized first claim-by-claim and then defendant-by-defendant, establishes the basis upon which the court dealt with each of the claims raised by plaintiffs.13 See Record Excerpts at tab 2 (Memoranda and Order at 9-30) ["Order"]. The appropriate way to challenge these findings would have been for plaintiffs to explicitly respond to them, point-by-point, with specific facts and evidentiary challenges pulled from the record. See supra note 10; see generally supra Part II.A-B.1. That, unfortunately, is not what the plaintiffs have chosen/been able to do. Rather, plaintiffs have stepped back from the district court's opinion and responded with general challenges to the court's very specific findings.14 To fully resolve each of these contentions, we consider them individually.
Plaintiffs have briefed a lengthy list of misrepresentations allegedly made by defendants. The gist of plaintiffs' overall argument is that: (i) they were induced to purchase interests in Onshore with promises of low risk and high profits, and that, (ii) even though plaintiffs were given a rescission opportunity when the financing deadline established in the first memorandum expired, that opportunity was not an honest one and defendants are, therefore, liable for their misrepresentations.
As noted by the district court, despite their differences, both memoranda warned plaintiffs of the Onshore risk.15 Moreover, the differences between these two memoranda are harmonized by Onshore's rescission offer--plaintiffs' opportunity to, in essence, enforce the terms of the first memorandum by walking away from the Onshore deal. Although plaintiffs assault the legitimacy of that opportunity,16 they have produced no tangible evidence to suggest anything less than "fair play" on the part of defendants. Such was the observation of the district court17 and, having reviewed the summary judgment record thoroughly, we agree with and affirm the district court's findings.
defendants' alleged misrepresentations by May 1, 1985?
1933 Securities Act began to run?
Plaintiffs argue that there is a genuine issue of material fact as to when the limitations period on their causes of action under sections 12(1) and 12(2) of the Securities Act of 1933 began.21 In short, plaintiffs argue that defendants assured them that Onshore would be a sound and lucrative venture. Defendants contend, however, that the district court correctly concluded that investors were not diligent in bringing their claims under the Securities Act of 1933. More precisely, defendants stress that plaintiffs did not furnish any evidence or cite any authorities to rebut the evidence and authorities offered by defendants regarding the one-year statute of limitations on plaintiffs' claims under § 12(2) of the Securities Act of 1933. Codified at 15 U.S.C. § 77l(2) (1989).
Each plaintiff signed a subscription agreement when she purchased Onshore interests--a subscription agreement that should have put these investors on notice of the speculative nature of their investment. It certainly triggered a reason to exercise reasonable diligence.22 If plaintiffs subsequently were told something contrary to this agreement, that should have dyed the flag raised by the subscription agreement an even brighter shade of red.
No action shall be maintained to enforce any liability created under section 77k or 77l (2) of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence, or, if the action is to enforce a liability created under section 77l (1) of this title, unless brought within one year after the violation upon which it is based. In no event shall any such action be brought to enforce a liability created under ... section 77l (1) ... more than three years after the sale.
Codified at 15 U.S.C. § 77m (1989) (emphasis added). Plaintiffs filed this lawsuit on December 3, 1987. All of the plaintiffs, with the exceptions of Steubling, LaCelle, Mikles and MJM, purchased their Onshore units before November 30, 1984 by executing the subscription agreements. Therefore, under the discovery rule of section 77m of Title 15,23 the latest date that any of these plaintiffs could have filed suit in order to toll the one-year limitation period would have been December 1, 1985. Even if we were to disregard the discovery rule of section 77m, the latest date that these plaintiffs could have filed suit to toll the three-year limitation period would have been December 1, 1987. In short, plaintiffs' claims are barred by both of the limitation periods in section 77m of Title 15. Steubling, LaCelle, Mikles, and MJM purchased their Onshore units and executed the subscription agreement by May 1, 1985. Accordingly, their claims are barred by the one-year limitation prescribed by section 77m of Title 15.
Were plaintiffs' 10(b) and 10(b)(5) claims properly time-barred?
Plaintiffs have tucked a related "catch-all" contention within the pages of their brief--namely that they have suffered financial injuries as a result of various predicate acts, including violations of section 10(b) and federal mail and wire fraud statutes. Plaintiffs elaborated upon this contention in their Supplemental Brief. See Supplemental Brief on the Impact of the Supreme Court's Recent Decision in Lampf, Pleva, Lipkind, Prupis & Petigrow vs. Gilbertson (filed Sept. 3, 1991) ["Supplemental Brief"].
In Lampf, the United States Supreme Court, in a majority opinion authored by Justice Blackmun, held that: (i) the statute of limitations applicable to actions under section 10(b) consists of the one-and-three-year provisions of the Securities Exchange Act and Securities Act for causes of action which they specifically provided for; and that (ii) equitable tolling is not applicable. See Lampf v. Gilbertson, --- U.S. ----, 111 S.Ct. 2773, 2781-82, 115 L.Ed.2d 321 (1991). Plaintiffs, with Lampf in hand, argue that it is beyond dispute that all plaintiffs filed this lawsuit within the three-year cut-off of Section 9(e). They then go on to argue the dissenting position of Justices Kennedy and O'Connor--"that a 3-year absolute time bar is inconsistent with the practical realities of § 10(b) litigation[,]" given the difficulties in discovering whether a violation of the securities laws occurred at all. Lampf, 111 S.Ct. at 2790.
Were plaintiffs' RICO claims properly barred?
Our review of the record supports these findings, and plaintiffs have added nothing new in their presentation to this court.28 We therefore find that plaintiffs' RICO claims were properly barred.
This is all the plaintiffs have to offer--no specific allegations, not even so much as general allegations balanced upon the tip of a factual kernel, to connect the activity of any defendant(s) to what plaintiffs allege. See generally supra Part II; see also Fed.R.Civ.P. 56(e) (Nonmovant "may not rest upon the mere allegations or denials of the adverse party's pleading, but ... must set forth specific facts showing that there is a genuine issue for trial."); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986) (movant has burden of showing that no genuine issue of fact exists, but non-moving party is not thereby relieved of producing evidence that would support jury verdict). Which of the defendants made such offerings, and to whom? Which investors indicated they did not have the money to purchase, and what exactly did they say? Plaintiffs' allegations are better suited for a complaint. After some eighteen months of discovery, tens of thousands of pages of deposition and transcripts, thousands of pages of documents and extensive interrogatories and admissions, there should be more. The burden to discover a genuine issue of fact is not on this court.30 Accordingly, we find that summary judgment is appropriate.
We have said before that because of the relative simplicity of the issues involved, suits to enforce promissory notes "are among the most suitable classes of cases for summary judgment." Lloyd v. Lawrence, 472 F.2d 313, 316 (5th Cir.1973). This statement holds true today. Appellee's motion and supporting materials established the elements necessary for recovery: the RTC holds a valid claim against Colony Creek and Goldberg, the note has matured according to its terms, and Colony Creek and Goldberg have defaulted.
941 F.2d 1323, 1325 (5th Cir.1991) (citations omitted).32 Accordingly, we affirm the district court's grant of summary judgment on defendants' counterclaims.
We have sifted through plaintiffs' briefs and found numerous points tucked within their pages. Our efforts have separated out a few more contentions worthy of discussion.
Throughout their brief and during oral argument, plaintiffs have argued that the defendants' Pretrial Order, filed after their Motions for Summary Judgment, identified twenty-eight contested issues of material fact, and that plaintiffs' own Proposed Pretrial Order lists at least twenty-four witnesses prepared to testify about defendants' fraudulent inducements and assorted Onshore wrongdoings. Plaintiffs argue that these issues are sufficient to defeat defendants' motions for summary judgment.
We disagree. After eighteen months of discovery, the only "evidence" plaintiffs produced in response to defendants' motions for summary judgment was an unsigned letter and a one-page excerpt from Ms. Joel Middlebrook's deposition, the bookkeeper for the Houston Petroleum Company.35 Ms. Middlebrook did not purchase any Onshore shares, nor is she a plaintiff in this lawsuit. While the deposition excerpt and letter do illustrate Ms. Middlebrook's dissatisfaction with HPC, neither of these provides reliable evidence that HPC or O'Donnell have, or may have, violated the Securities Act or RICO. Such insignificantly probative facts are insufficient to satisfy plaintiffs' summary judgment burden. See Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511.
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by the written consent of the adverse party; and leave shall be freely given when justice so requires.
[o]nce a responsive pleading has been filed, a pleading may be amended only by leave of court or by consent of the adverse party. Fed.R.Civ.P. 15(a). While "leave shall be freely given when justice so requires," the decision rests in the sound discretion of the trial court.... Our review extends only to whether the trial court abused that discretion.
This case's convoluted procedural history suggests that it is litigation with Bleak House potential. One chapter within that history is the opportunity plaintiffs were given to amend their complaint on December 18, 1987. Another is the opportunity plaintiffs were given, following the court's granting of an extension of time, to join new parties until August 9, 1988. Rather than taking advantage of these opportunities, plaintiffs waited until they had expired and then moved for another extension of time to join new parties--a motion the district court denied. Now plaintiffs appeal the district court's denial of their September 9, 1988 Motion for Leave to File a Second Amended Complaint or in the Alternative Motion for Joinder of Persons Needed for Just Adjudication. We will not oblige and, accordingly, we affirm the district court's denial of that motion.
Plaintiffs also allege that the district court dismissed IDL as a party solely as a Rule 11 sanction to punish them for filing an allegedly frivolous claim. More specifically, plaintiffs assert that the district court's dismissal of IDL is (i) a mistake of law and (ii) in contempt of this court's mandate to reinstate IDL as a defendant.
* Plaintiffs contend that this court, in deciding plaintiffs' previous appeal, implicitly recognized that the case now before us is not frivolous.37 They are wrong. The appeal plaintiffs previously brought before us was from the district court's order dismissing IDL for lack of personal jurisdiction. The panel opinion did not consider, examine, or rule on the merits of the overall case. Accordingly, we do not find that our previous opinion is persuasive authority in opposition to defendants' motions for summary judgment.
Plaintiffs also assert that the district court's dismissal of IDL as a party is in contempt of this court's mandate to reinstate IDL as a defendant. We disagree. The only debatable issue is whether IDL should be reinstated as a defendant to plaintiff Topalian's claims--an issue incidental to our consideration of the merits of plaintiffs' overall action.38 Finding that plaintiffs have not even proximately approached meeting their summary judgment burden,39 we find that the district court properly granted summary judgment against them.
Another issue raised by plaintiffs is whether, should this court decide to reverse the district court's summary judgment against plaintiffs, there is sufficient evidence in the record to justify reassignment of this case to another district court judge. We find no grounds for reversal and, therefore, we do not reach this issue.
The final matter before us is whether we should grant defendant Rockwood's request for sanctions pursuant to Rule 38 of the Federal Rules of Appellate Procedure. Under Rule 38, this court may impose sanctions upon parties who pursue frivolous appeals. See Coghlan v. Starkey, 852 F.2d 806, 810-11 (5th Cir.1988). A frivolous appeal is one "that relies on legal points that are not arguable on the merits." Lyons v. Sheetz, 834 F.2d 493, 496 (5th Cir.1987) (citation omitted); see also McAfee v. Fifth Circuit Judges, 884 F.2d 221, 223 (5th Cir.1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1141, 107 L.Ed.2d 1046 (1990). We find that, although plaintiffs have not met the evidentiary burden required to survive defendants' motions for summary judgment, we cannot summarily dismiss the issues they have brought before us as "frivolous." Accordingly, we deny defendant Rockwood's request for sanctions.
C.  " § 55t"         District court found that no such statute exists.
factual dispute."  Order at 15.
no knowledge of Johnson's role in the partnership."
trial they will prove their claims."  Order at 22.
in any way with the sale of the units of Onshore."
based on the promissory notes."  Order at 24"25.
Ultimately, they seek much more--rescission of the transactions which resulted in the purchase of the units, treble damages under RICO, imposition of a constructive trust, appointment of a receiver, costs and attorney's fees, and "other relief as may be just and proper."
(a) failing to note twenty-eight (28) contested issues of material fact listed in Defendants' Joint Pretrial Order Filed after Defendants had made their summary judgment motions; (b) totally failing to discuss how the moving party Defendants had satisfied their burden of production or the legal standard for making that determination; (c) assuming that the moving party Defendants had satisfied their burden of production of the legal standard for making that determination; (d) and overlooking deposition testimony and other documents presented by the non-moving Plaintiffs, including Plaintiffs' Pretrial Order, which identified twenty-four (24) witnesses prepared to testify as to each issue based on their personal dealings with Defendants.
Appellants' Brief at vi, Topalian v. Ehrman, Nos. 90-2104, 90-2105, 90-2106 (5th Cir. filed Oct. 24, 1990) ["Appellants' Brief"].
Order at 11-12; id. at 14 ("The offering memorandum clearly states that the investors might never see a penny of their investment and might never make a profit. The promissory notes clearly state that the signer is responsible for the debt. It is well settled law that an adult is responsible for reading the documents he signs.").
[t]he unlawful rescission offer was made after December 31, 1984, it was not made to all subscribers, did not require an affirmative reconfirmation and was not accompanied by a disclosure including all information necessary to update previously provided disclosures. Furthermore, Defendants did not give any disclosure materials to Plaintiffs until well after the Partnership had secured financing.
Appellants' Brief at 26-27. And appellants add, "Defendants were able to resell the units to Plaintiffs while Plaintiffs were still under the influence of Defendants' continuing fraudulent misrepresentations and high-pressure selling tactics." Id. at 26.
Nothing appears to have been kept secret from the Plaintiffs. In fact, in their depositions, they admit their ignorance of any wrongdoing. They all state that they did not read any of the documents they received in connection with Onshore, including the ones they signed, or that they scanned them, did not understand them but sought no explanation.
The Court's finding is not only preposterous but in conflict with: (a) portions of its own Opinion which repeatedly states that Plaintiffs lacked knowledge of any wrongdoing by certain Defendants at the time of the alleged wrongs; (b) Defendants' Pretrial Order which states that the date when each Plaintiff should have known of the alleged wrongs as to each Defendant was a contested issue of fact; (c) Plaintiffs' Complaint and other documents which consistently state that Defendants fraudulently concealed their wrongdoing and prevented Plaintiffs from suspecting any wrongdoing until May, 1987; (d) the uncontested fact that selling activities were still continuing and all Plaintiffs were just receiving the "Other" Memorandum on May 1, 1985, the date used by the Court; and (e) the fact that Defendants continuously authorized secondary sales of restricted securities for an indefinite period.
No action shall be maintained to enforce any liability created under section 77k or 77l(2) of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence, or, if the action is to enforce a liability created under section 77l(1) of this title, unless brought within one year after the violation upon which it is based. In no event shall any such action be brought to enforce a liability created under section 77k or 77l(1) of this title more than three years after the security was bona fide offered to the public, or under section 77l(2) of this title more than three years after the sale.
15 U.S.C. § 77m (1989).
(a) EFFECT ON PENDING CAUSES OF ACTION--The limitation period for any private civil action implied under section 10(b) of this Act that was commenced on or before June 19, 1991, shall be the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, 1991.
(2) which would have been timely filed under the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, 1991.
shall be reinstated on motion by the plaintiff not later than 60 days after the date of enactment of this section.
In the present case, the claims brought under the 1934 Securities and Exchange Act were dismissed by the district court in 1990--that is, prior to Lampf, --- U.S. at ----, 111 S.Ct. at 2773, and prior to this amendment's June 19, 1991 trigger date. Accordingly, we find that the amendment does not resurrect the plaintiffs' claims.
The summary judgment evidence shows that the efforts expended by the Defendants were all legitimate business practice. Ehrman and the other Defendants entered into agreements for the partnership to participate in drilling programs. Financing was arranged. Units were offered and sold to the Plaintiffs and other investors. Wells were drilled, some produced oil or gas and the Partnership was paid its share of money due. The Offering Memorandum and other documents state how the money would be paid out of funds received. This is normal business practice. There is no evidence of illegality.
However, throughout the text of their Complaint as well as in the RICO statement, Plaintiffs clearly detailed that they were fraudulently induced to make sizeable investments of money in an "Enterprise" which was conceived, developed and operated for the unjust enrichment of the Defendants. The "Enterprise" referred to is clearly the limited partnership--ONSHORE. It was plain to see that they were not referring to the Defendants as the "Enterprise."
Plaintiffs do contend, however, that all the Defendants conducted or participated, directly or indirectly, in the business affairs of the limited partnership--the Enterprise--through a pattern of racketeering activity in violation of 18 U.S.C. § 1962. All of the Defendants were an integral part of the scheme to deprive Plaintiffs of their investment in ONSHORE. They each participated in the scheme to unjustly enrich themselves to the loss and detriment of the Plaintiffs.
Appellants' Brief at 48 (emphasis added).
The Defendant General Partners and their seller-agents consciously ignored the Partnership's "Suitability Standards" by offering units to prospective investors who did not qualify, some of whom indicated that they did not have the money to purchase a unit. However, the guarantees of no loss, the expectancy of a return of three or four times the initial investment, the "no cash down basis" and the assurances that limited partners could sell back their shares for double what they paid were irresistible lures to Plaintiffs and others.
Q And what was the occasion that brought about your learning of Houston Petroleum Company?
A Well, one time I went to their office, before they started the program, and visited with them. They had several people there that showed the office and what they were going to drill, and so on. It was a kind of a dog-and-pony show for potential investors that John had set up and did.


text:
ANDERS v. STATE OF CAL.
See 388 U.S. 924 . [386 U.S. 738 , 739] Ira Michael Heyman for petitioner.
We are here concerned with the extent of the duty of a court- appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal.
After he was convicted of the felony of possession of marijuana, petitioner sought to appeal and moved that the California District Court of Appeal appoint counsel for him. Such motion was granted; however, after a study of the record and consultation with petitioner, the appointed counsel concluded that there was no merit to the appeal. He so advised the court by letter and, at the same time, informed the court that petitioner wished [386 U.S. 738 , 740] to file a brief in his own behalf. At this juncture, petitioner requested the appointment of another attorney. This request was denied and petitioner proceeded to file his own brief pro se. The State responded and petitioner filed a reply brief. On January 9, 1959, the District Court of Appeal unanimously affirmed the conviction, People v. Anders, 167 Cal.App. 2d 65, 333 P.2d 854.
On January 21, 1965, petitioner filed an application for a writ of habeas corpus in the District Court of Appeal in which he sought to have his case reopened. In that application he raised the issue of deprivation of the right to counsel in his original appeal because of the court's refusal to appoint counsel at the appellate stage of the proceedings. 1 The court denied the application on the same day, in a brief unreported memorandum opinion. The court stated that it 'ha(d) again reviewed the record and (had) determined the appeal (to be) without merit.' The court also stated that 'the procedure prescribed by In re Nash, 61 A.C. 538, was followed in this case ....'2 On June 25, 1965, petitioner submitted a petition for a writ of habeas [386 U.S. 738 , 741] corpus to the Supreme Court of California, and the petition was denied without opinion by that court on July 14, 1965. Among other trial errors, petitioner claimed that both the judge and the prosecutor had commented on his failure to testify contrary to the holding of this Court in Griffin v. State of California, 380 U.S. 609 (1965). We have concluded that California's action does not comport with fair procedure and lacks that equality that is required by the Fourteenth Amendment.
'If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court [386 U.S. 738 , 742] is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied.' At 675, 78 S.Ct. at 975.
In Gideon v. Wainwright, 372 U.S. 335 ( 1963), the Sixth Amendment's requirement that 'the accused shall enjoy the right ... to have the Assistance of Counsel for his defence' was made obligatory on the States by the Fourteenth Amendment, the Court holding that 'in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.' At 344, 83 S.Ct. at 796. We continue to adhere to these principles.
The District Court of Appeal, after having examined the record, affirmed the conviction. We believe that counsel's bare conclusion, as evidenced by his letter, was not enough. It smacks of the treatment that Eskridge received, which this Court condemned, that permitted a trial judge to withhold a transcript if he found that a defendant 'has been accorded a fair and impartial trial, and in the Court's opinion no grave or prejudicial errors occurred therein.' Eskridge v. Washington State Board, 357 U.S. 214, 215 , 1062 (1958). Such a procedure, this Court said, 'cannot be an adequate substitute for the right to full appellate review available to all defendants' [386 U.S. 738 , 743] who may not be able to afford such an expense. At 216, 78 S.Ct. at 1062. And in still another case in which 'a state officer outside the judicial system' was given the power to deprive an indigent of his appeal by refusing to order a transcript merely because he thought the 'appeal would be unsuccessful,' we reversed finding that such a procedure did not meet constitutional standards. Lane v. Brown, 372 U.S. 477 , 9 L. Ed.2d 892 (1963). Here the court-appointed counsel had the transcript but refused to proceed with the appeal because he found no merit in it. He filed a no-merit letter with the District Court of Appeal whereupon the court examined the record itself and affirmed the judgment. On a petition for a writ of habeas corpus some six years later it found the appeal had nome rit. It failed, however, to say whether it was frivolous or not, but, after consideration, simply found the petition to be 'without merit.' The Supreme Court, in dismissing this habeas corpus application, gave no reason at all for its decision and so we do not know the basis for its action. We cannot say that there was a finding of frivolity by either of the California courts or that counsel acted in any greater capacity than merely as amicus curiae which was condemned in Ellis, supra. Hence California's procedure did not furnish petitioner with counsel acting in the role of an advocate nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity. The necessity for counsel so acting is highlighted by the possible disadvantage the petitioner suffered here. In his pro se brief, which was filed in 1959, he urged several trial errors but failed to raise the point that both the judge and the prosecutor had commented to the jury regarding petitioner's failure to testify. In 1965, this Court in Griffin v. State of California, supra, outlawed California's comment rule, as embodied in Art. I, 13, of the California Constitution. [386 U.S. 738 , 744] III.
The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. 3 His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court-not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. [386 U.S. 738 , 745] This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled. This procedure will assure penniless defendants the same rightsan d opportunities on appeal-as nearly as is practicable-as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.
The quixotic requirement imposed by the Court can be explained, I think, only upon the cynical assumption that an appointed lawyer's professional representation to an appellate court in a 'no-merit' letter is not to be trusted. That is an assumption to which I cannot subscribe. I [386 U.S. 738 , 747] cannot believe that lawyers appointed to represent indigents are so likely to be lacking in diligence, competence, or professional honesty. Certainly there was no suggestion in the present case that the petitioner's counsel was either incompetent or unethical.
[ Footnote 1 ] Previously, on January 24, 1964, petitioner, while on parole, had been arrested and convicted of the felony of burglary which was affirmed on appeal. We granted certiorari, 386 U.S. 264 , vacated the judgment below and remanded for further consideration in light of Chapman v. California, 386 U.S. 18 .
[ Footnote 2 ] In re Nash, 61 Cal.2d 491, 39 Cal.Rptr. 205, 393 P.2d 405 (1964), held that the requirements of Douglas v. People of State of California, 372 U.S. 353 (1963), are met in the event appointed counsel thoroughly studies the record, consults with the defendant and trial counsel and conscientiously concludes, and so advises the appellate court, that there are no meritorious grounds of appeal; and provided that the appellate court is satisfied from its own review of the record, in light of any points personally raised by the defendant, that appointed counsel's conclusion is correct. The appeal then proceeds without the appointment of other counsel and decision is reached without argument.
[ Footnote 3 ] For comparative purposes see Tate v. United States, 123 U.S.App.D. C. 261, 359 F.2d 245, and Johnson v. United States, 124 U.S.App.D.C. 29, 360 F.2d 844, which outline the practice followed in the District of Columbia. These guidelines are elaborated in more detail in a 'Statement to be Handed by the Clerk to Appointed Counsel' which has been prepared by the Court of Appeals for the District of Columbia Circuit. We indicate no approval of the requirements set out in the statement or in the cases.
Even accepting the Court's requirement, one would have to perceive an 'arguable' issue in Anders' case in order to remand it for a new appeal. The most that all of the courts and lawyers who have examined his case have turned up is a claim that the prosecutor commented on his silence at trial. But Anders' conviction was affirmed by the California District Court of Appeal six years before Griffin v. State of California, 380 U.S. 609 was decided. Our later decision in Tehan v. United States ex rel. Shott, 382 U.S. 406 d 453, was based on the premise that prior to Griffin the practice of commenting on the defendant's silence was well established and thus did not raise an 'arguable' issue. Cf. O'Connor v. Ohio, 385 U.S. 92 .

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


text:
From the textbook, read §1.1 and §1.2, up to the heading "Missing Solutions" on page 27. Complete the reading questions on Moodle before class on Monday.
Homework 1: §1.1 exercises 3, 5, 17; and §1.2 exercises #1, 3, 5, 8, 15, 17, 25, 28. This is due in the homework box (RMS 3rd floor, near the fireplace) at 4pm Wednesday.
Read this article and §1.3 in the textbook. Then complete the reading questions on Moodle.
Read §1.4 and complete the reading questions on Moodle.
Read this article and §1.6 in the tetbook. Then complete the reading questions on Moodle.
This week: begin work on Lab 1.
Read §1.7 and complete the reading questions on Moodle..
Read §1.8. Especially note the Linearity Principle and the Extended Linearity Principle..
Watch the video The Integrating Factor Method. Then read §1.9.
Finish Lab 1. You may submit your lab report on Moodle in PDF format or print it and place it in the homework box by 4pm Wednesday.
The next homework appears below. Because the lab is due Wednesday, this homework is due Friday.
Re-read the subsection Comparing the Methods of Solution for Linear Equations (p. 131–132). Then read §2.1, and complete the reading questions on Moodle.
Read §2.2. Take note of how vector fields can be used to visualize the behavior of solutions to systems of differential equations.
If possible, bring a computer with Mathematica to class on Monday.
Read §2.4 and complete the reading questions on Moodle.
Familiarize yourself with Lab 2: Bifurcation Plane, which is due on October 19.
The exam will consist of a short take-home portion and an in-class portion.
For the take-home portion, you may (and should) use Mathematica or other technology.
You may not use Mathematica or similar technology on the in-class exam. Calculators will be permitted, but probably not very helpful. The in-class exam will focus on conceptual understanding. It will involve basic calculus and some arithmetic, but not tedious arithmetic.
Read §3.1, and complete the reading questions on Moodle.
Fall break! No class Monday, October 15.
Finish Lab 2 (bifurcation plane). You may either submit your lab report on Moodle in PDF format or place it in the homework box by 4pm Friday.
The next homework includes exercises from §3.1 and §3.2. Because the lab is due Friday, the next homework is due Monday.
Read §3.4, and complete the reading questions on Moodle.
For review of linear systems, complete the Linear System Summary worksheet. This will give you a catalog containing the form of the solution and the phase portrait for all 2x2 linear systems of differential equations.
Extra credit opportunity: Attend the MSCS Colloquium by Minah Oh (Monday, Oct. 29, 3:30pm, in RNS 310) and answer these two questions on Moodle.
Start working on Lab 3.
Read §3.7 and complete the reading questions on Moodle.
Finish Lab 3 (linear systems).
Re-read §4.3. Understand that a forcing frequency very close to the natural frequency produces a large-amplitude forced response.
Study for the exam: see below for suggested review problems.
For the take-home portion, you may use Mathematica or other technology.
Extra credit opportunity: Attend the MSCS Research Seminar by Jasper Weinburd (Friday, Nov. 16, 3:40pm, in RNS 204) and answer these two questions on Moodle.
Extra credit opportunity: Attend the MSCS Colloquium by Wako Bungula (Monday, Nov. 19, 3:30pm, in RNS 310) and answer these two questions on Moodle.
Read §5.3 and complete the reading questions on Moodle. Pay special attention to the story on pages 490–493. Come to class knowing what is a conserved quantity and a Hamiltonian system.
Take a look at Lab 4.
Read §7.1. Note how we can quantify the error in approximating a solution using Euler's method.
Read §7.2. How can Euler's method be improved?
Read §7.3. Note that the Runge-Kutta is more sophisticated than Improved Euler's method.
Bring a computer with Mathematica to class next time, if possible.
Read Appendix B: Power Series (pages 742–748). Pay special attention to the examples, observing how power series can be used to find solutions to differential equations.
Final Exam Information: The final exam will consist of a short take-home portion and an in-class exam.
The take-home problems will be distributed on the last day of class and due at the final exam period. You may use technology and other course resources, but you may not talk to people (other than the professor) about these problems.
The exam will cover the all sections of the textbook that we have studied, with emphasis on the last third of the course.
For the in-class exam, calculators will be permitted, but probably not very helpful, and certainly not necessary. Mathematica and internet-capable devices will not be permitted.

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Argued and Submitted Nov. 4, 1996.
Ralph J. Leardo, San Francisco, CA, for petitioners.
Karen Fletcher Torstenson, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondent.
Petitions to Review Decisions of the Executive Office for Immigration Review. OCAHO Nos. 94C00204, 95C00024.
Before: RONEY,* BEEZER, and TROTT, Circuit Judges.
In 1986, Congress enacted the Immigration Reform and Control Act of 1986 ("IRCA"), Pub.L. No. 99-603, 100 Stat. 3359 (1986) (codified in scattered sections of 8 U.S.C.), which amended the INA and, among other things, made it unlawful for an employer knowingly to hire an alien who is unauthorized to work in the United States. Id. § 1324a. The statute creates an employment-eligibility verification system. Under this system, an employer must execute a verification form ("I-9"), attesting under penalty of perjury, that it has examined the requisite documents showing the employee's identity and employment authorization and thereby verified that its employee is not an unauthorized alien. Id. § 1324a(b)(2). If an employer fails to comply with the employment-eligibility verification requirements, it can be sanctioned under the statute. Id. § 1324a(e)(4).
In 1990, Congress concluded that the IRCA's employer-sanctions provisions were not having the desired effect of reducing the flow of illegal immigration that is motivated by the prospects of U.S. employment. See 136 Cong. Rec. S13,628-29 (daily ed. Sept. 24, 1990) (statement of Sen. Simpson). In response to this concern, Congress enacted the Immigration Act of 1990 ("1990 Act"), Pub.L. No. 101-649, 104 Stat. 4978 (codified at 8 U.S.C. § 1324c (1990)). The 1990 Act makes it unlawful for any person knowingly to use or accept counterfeit, altered, forged, or falsely made documents in order to satisfy various requirements of the IRCA's, including the attestation requirements discussed above. Id. § 1324c(a). The 1990 Act imposes civil money penalties of not less than $250 and not more than $2,000 for each instance of document fraud. Id. § 1324c(d)(3)(A). A person charged with document fraud under the 1990 Act is entitled to a hearing before an administrative law judge ("ALJ") in accordance with the requirements of the Administrative Procedure Act, 5 U.S.C. § 554. Id. § 1324c(d)(2). The ALJ's decision becomes a final order unless the agency modifies or vacates the decision within 30 days. Id. § 1324c(d)(4). A party adversely affected by a final order may petition the Court of Appeals for review within 45 days after the order becomes final. Id. § 1324c(d)(5).
In 1994, Villegas-Valenzuela and Limon-Perez (together, "Petitioners") worked as housekeepers at two different hotels in Fresno, California. That same year, United States Border Patrol Agent Steven Borup separately took Petitioners into custody after obtaining copies of fraudulent social security cards and alien registration cards that Petitioners had showed to their respective employers to prove their employment eligibility. Agent Borup also obtained copies of the "I-9" immigration forms Petitioners had signed, attesting that they were eligible to work. On the I-9 forms, each Petitioner had attested: "under penalty of perjury, the documents that I presented as evidence of identity and employment eligibility are genuine and relate to me. I am aware that federal law provides for imprisonment and/or fine for any false statements or use of false documents in connection with this certificate."
Agent Borup interviewed each Petitioner and contemporaneously recorded the interviews by typing a "Record of Sworn Statement." Both Petitioners admitted to using the fraudulent documents, which had been purchased from Los Angeles street vendors, to "obtain employment in the United States." Both Petitioners also admitted that they had showed the "counterfeit" cards to their employers to prove they were authorized to work in the United States.
Based upon the information obtained by Agent Borup, the INS filed complaints seeking civil money penalties under 8 U.S.C. § 1324c(a)(2). The complaints charged that Petitioners had "knowingly used and possessed the forged, counterfeit, altered, and falsely made documents ... in order to satisfy any requirement of the Immigration and Nationality Act." The complaints specifically identified the social security cards and alien registration cards as the fraudulent documents in question.
In their answers, Petitioners raised affirmative defenses, including that the complaints failed adequately to state claims upon which relief could be granted. Specifically, they argued that: 1) the complaints were conclusory and vague; and 2) section 1324c(a)(2) did not apply to their actions as employees.
The ALJs granted the INS's motions to strike the affirmative defenses because of controlling precedent of the Office of the Chief Administrative Hearing Officer ("OCAHO"), which provided that section 1324c(a)(2) does apply to the actions of employees, and because the defenses were not supported by a "statement of fact" as required by 28 C.F.R. § 68.8(c)(2). The ALJs also granted the INS's motions for summary decision, concluding that the INS was entitled to judgment as a matter of law. The ALJs then fined each Petitioner the statutory minimum penalty of $500.00 ($250.00 for each fraudulent document used).
The OCAHO refused to modify the ALJs' orders. Petitioners appealed to this court, contending: 1) that an employee's use of false documents to verify employment eligibility does not violate section 1324c(a)(2); 2) that the administrative complaints filed by the INS failed to adequately state claims upon which relief could be granted because they were conclusory and vague; and 3) that summary decision was inappropriate because the INS's evidence was insufficient for the ALJs to conclude as a matter of law that each Petitioner possessed the requisite mens rea specified in the statute.
A. Did the Petitioners Violate 8 U.S.C. § 1324c(a)(2)?
To determine if an employee violates section 1324c(a)(2) by using fraudulent documents to prove employment eligibility, we consider the plain language of the statute, its legislative history, and the relevant caselaw interpreting the statute. We review questions of statutory interpretation de novo, Braun v. INS, 992 F.2d 1016, 1018 (9th Cir.1993), but we give deference to an agency's interpretation of the statutes it administers. Mason v. Brooks, 862 F.2d 190, 192 (9th Cir.1988); see also Fernandez v. Brock, 840 F.2d 622, 631 (9th Cir.1988) (where statutory language is ambiguous, court must "defer to the agency's interpretation of the statute if it is based on a permissible construction of the statute" and must "not substitute [its] own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency") (internal quotation omitted). We are not obligated, however, to accept an interpretation that is "demonstrably irrational or clearly contrary to the plain and sensible meaning of the statute." Bui v. INS, 76 F.3d 268, 269-70 (9th Cir.1996) (quotation omitted).
(4) to accept or receive or to provide any document lawfully issued to a person other than the possessor (including a deceased individual) for the purpose of complying with section 1324a(b) of this title.
8 U.S.C. § 1324c(a) (emphasis added).
In order to establish a violation of 8 U.S.C. § 1324c(a)(2), therefore, the INS must show that 1) the Petitioner used the forged, counterfeit, altered, or falsely made documents, 2) knowing the documents to be forged, counterfeit, altered, or falsely made, 3) after the November 29, 1990 enactment date of the 1990 Act, 4) for the purpose of satisfying "any requirement" of the INA. United States v. Morales-Vargas, No. 94C00084, 1995 WL 265083, at * 3 (O.C.A.H.O. Mar. 13, 1995). Petitioners allege that the fourth element precludes the actions against them.
Petitioners argue that 8 U.S.C. § 1324a, which codifies the employment-eligibility-verification system, imposes duties only upon employers. Therefore, Petitioners contend, providing false documents to an employer to prove employment eligibility cannot constitute a violation of any duty imposed as a requirement of the INA. In short, noting that most of the requirements found in section 1324 run to employers, Petitioners urge this Court to limit civil document fraud actions only to employers.3 To do so, however, would be contrary to the plain language of the statute.
Although many of the requirements in the chapter direct employers' actions, section 1324c(a)(2) states that it is a violation for any person to show false documents in order to satisfy any requirement of the chapter. On its face, the statute contemplates the exchange of documents between the employee and the employer in order to verify employment eligibility. See 8 U.S.C. § 1324a(b)(1) (employer must "attest ... that it has verified that the individual is not an unauthorized alien by examining ... document[s]"). As the OCAHO has noted, "[e]ven if the verification requirement is characterized as exclusively that of the employer, the actions of an employee in presenting fraudulent documents are undertaken to satisfy that requirement and thus gain illegal employment." Morales-Vargas, 1995 WL 265083, at * 4.
An employee's use of false documents to prove employment eligibility therefore satisfies one of the requirements of the chapter, namely that the employer examine the documents and attest that the employee is eligible to work. Had Congress desired to limit the sweep of section 1324c(a), it could have done so when it enacted the statute. For example, Congress could have said "any requirement of the Act imposed upon the person or entity that commits the document fraud." Similarly, had Congress desired to limit sanctions exclusively to employers, it could have done so merely by inserting the word "employer" in lieu of "person." But the language of the statute does nothing to limit the scope of its applicability; it simply refers to any person and any requirement of the Act, without exception. 8 U.S.C. § 1324c(a)(2); see also Morales-Vargas, 1995 WL 265083, at * 4.
Finally, Petitioners observe that another subsection of 1324c(a), specifically subsection 1324c(a)(4),4 explicitly refers to the employer-attestation requirements of section 1324a(b). Because section 1324c(a)(2) fails to make such an explicit reference to the attestation requirements, Petitioners contend, its reference to "any requirement" does not include the attestation requirements. Although it is unclear why Congress chose to refer specifically to the attestation requirements in section 1324c(a)(4), its failure to make a specific reference in the other three subsections does not mean that Congress excluded the attestation requirements from the meaning of "any requirement." Congress used broader language in sections 1324(a)(1), (a)(2), and (a)(3). As discussed above, Congress's use of the word "any" encompasses all requirements of the chapter, including the attestation requirements.
Although we need not consider a statute's legislative history when its language is clear, the legislative history in this case supports our interpretation of the statute. In 1990, Congress determined that the IRCA's employer sanctions were not reducing illegal immigration sufficiently, largely because of the "large number of false documents that now exist which can be used to fraudulently satisfy the employment authorization requirement of employer sanctions." 136 Cong. Rec. S13,629 (daily ed. Sept. 24, 1990) (statement of Sen. Simpson). In response to this problem, Senator Alan Simpson, the author of the 1990 Act stated: "I am today introducing legislation which would do the following: ... create a system of civil fines to deter users of fraudulent documents." Id. (emphasis added). Thus, the legislative history indicates that section 1324c was designed to apply to the users of the fraudulent document-such as the Petitioners.
Our holding is also consistent with United States v. Oloyede, 982 F.2d 133, 136 (4th Cir.1993), in which the Fourth Circuit declared that 8 U.S.C. § 1324(a)(1)(D), which proscribes harboring of aliens, was not limited specifically to employers. In Oloyede, the defendants contended that the alien harboring provision of the IRCA was intended only to penalize employers. Id. Because the defendants were not employers, they alleged they could not be prosecuted under the IRCA. Id. The Fourth Circuit rejected this contention. Noting that the alien harboring statute, like the document fraud statutes, applies to "any person," the court concluded that "Congress intended to give broad scope to the class of persons whose conduct is proscribed by the statute." Id. This reasoning further supports our holding.
The ALJs' determinations that employees violate section 1324c(a) by using false documents to verify their employment eligibility are supported by the language of the statute, its legislative history, and relevant caselaw. The ALJs' decisions were therefore not "demonstrably irrational or clearly contrary to the plain and sensible meaning of the statute." Bui, 76 F.3d at 269-70 (quotation omitted).
B. Did the Complaints Properly State a Claim?
Petitioners next contend that the INS complaints were conclusory and vague and therefore did not adequately state claims upon which relief could be granted.5 We reject this contention. We review de novo whether the ALJ properly declined to dismiss the complaint for failure to state a claim. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The rules of practice governing these proceedings require that the complaint contain "a clear and concise statement of facts for each violation alleged to have occurred." 28 C.F.R. § 68.7(b)(3).
In both cases, the complaints stated that Petitioners knowingly used two fraudulent documents; the complaints also identified the documents the Petitioners used, and cited the statutory provision they violated. Petitioners have not shown that they had insufficient notice of the nature of the charges against them or that they suffered any prejudice. See Filiberti v. Merit Sys. Protection Bd., 804 F.2d 1504, 1508 (9th Cir.1986). Moreover, administrative pleadings are to be liberally construed. Donovan v. Royal Logging Co., 645 F.2d 822, 826 (9th Cir.1981). Thus, the ALJs correctly concluded that the complaints properly stated grounds upon which relief could be granted.
C. Was Summary Decision Appropriate?
Petitioners next argue that summary decision was inappropriate because: 1) the INS's motions were not supported by authenticated or admissible evidence;6 2) Agent Borup's affidavits were not in proper form; 3) use of Petitioners' "sworn statements" would be fundamentally unfair unless Petitioners could cross-examine Agent Borup; 4) the sworn statements were taken in violation of their alleged rights to remain silent and rights to counsel; 5) Petitioners were denied the opportunity to conduct discovery; and 6) the INS failed to carry out its burden with respect to the elements charged.
We review a grant of summary judgment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the relevant substantive law was correctly applied. Id. In evaluating Petitioner's claim that the ALJ considered inadmissible evidence, we review for an abuse of discretion. United States v. A.E. Lopez Enters., Ltd., 74 F.3d 972, 976 (9th Cir.1996).
In document fraud cases, summary decision may be granted when the "pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision." 28 C.F.R. § 68.38(c). In reaching their decisions, the ALJs considered Petitioners' I-9 forms, copies of the fraudulent documents, Agent Borup's affidavits, and documents from the INS Central Index System indicating that the alien registration numbers appearing on Petitioners' cards were issued to other aliens. Petitioners argue that these documents were not properly authenticated, but, aside from pure speculation, Petitioners did not present any evidence to question their authenticity. In Petitioners' affidavits in opposition to the INS's motion for summary decision, Petitioners did not refute their admissions to Agent Borup that they had used fraudulent documents, nor did they deny that they had purchased the documents on the streets of Los Angeles in order to use the documents to verify employment eligibility.
The INS, on the other hand, submitted Agent Borup's affidavits explaining how he had come into possession of copies of the fraudulent documents, as well as how the Central Index System showed that Petitioners' alien registration numbers were assigned to other aliens. The Ninth Circuit requires that the evidence be authenticated through some recognized procedure. See Iran v. INS, 656 F.2d 469, 472 (9th Cir.1981). Agent Borup's affidavits were sufficient to satisfy this requirement.7 This conclusion is consistent with the well-settled rule that agencies are not bound by strict rules of evidence in cases brought under the Administrative Procedure Act. See, e.g., Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir.1980), cert. denied, 452 U.S. 906, 101 S.Ct. 3033, 69 L.Ed.2d 407 (1981); Marlowe v. INS, 457 F.2d 1314, 1315 (9th Cir.1972) (per curiam). In light of Agent Borup's explanation as to how he had obtained copies of Petitioners' fraudulent documents, and how he had determined that Petitioners' Alien Registration Numbers belonged to other aliens, the ALJs did not abuse their discretion by considering this evidence.
Petitioners' claims that Borup's affidavits were not in the proper form are also without merit. Although the affidavits contain no jurat, Borup "solemnly swears" to the information contained in the affidavits. Because the ALJs are not strictly bound by the rules of evidence, Calhoun, 626 F.2d at 148, the ALJs did not abuse their discretion by considering the affidavits.
Petitioners next contend that they should have been allowed to cross-examine Agent Borup. This court has rejected similar contentions in the past. See Espinoza v. INS, 45 F.3d 308, 311 (9th Cir.1995) (concluding that alien is not entitled to cross-examine preparer of INS form I-213 (sworn statement of alien) when preparer was INS agent and no evidence contradicted the challenged hearsay). Here, although Petitioners contend that they should have been able to challenge Borup's fluency in Spanish, Petitioners presented inadequate evidence contradicting their statements in the affidavits or in their sworn statements. Petitioners had an opportunity to contest the substance of any of their statements contained in the affidavits, including their statements that the documents were fraudulent. See Trias-Hernandez v. INS, 528 F.2d 366, 369 (9th Cir.1975) (no hearsay or cross-examination problems where alien had opportunity to dispute understanding of questions put to him by INS agent and could have corrected errors in the statement). Thus, the ALJs did not abuse their discretion by denying Petitioners the opportunity to cross-examine Agent Borup.
Petitioners' claims that they were not advised of alleged rights to silence and to counsel in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and 8 C.F.R. § 287.3 are similarly without merit. Miranda warnings are not applicable in this type of administrative proceeding. See Trias-Hernandez, 528 F.2d at 369. Although INS regulations provide for similar warnings in other contexts, see 8 C.F.R. § 287.3, those regulations are not applicable in document fraud cases. Document fraud actions have their own C.F.R. guidelines in 8 C.F.R. § 270.2. In subsection 270.2(e), the regulations require the INS to tell the alien that he or she has a right to counsel, but only as part of the Notice of Intent to Fine. The regulations therefore did not require Agent Borup to give Petitioners any admonitions of a right to remain silent or a right to counsel before he interviewed them.
Petitioners next contend that the INS's evidence was not sufficient for the ALJs to conclude as a matter of law that each Petitioner had the requisite mens rea specified in the statute.8 For someone to violate section 1324c, he or she must "knowingly" use fraudulent documents. Petitioners contend that the INS has not produced evidence proving that Petitioners knew what a "fraudulent" or "counterfeit" card was. The record, however, does not support this contention. Petitioners admitted to Agent Borup that they bought the alien registration and social security cards from Los Angeles street vendors in order to establish employment eligibility. Petitioners never disputed that they made these statements. In light of Petitioners' admissions, a reasonable person would have to conclude that Petitioners knew the documents were not genuine. Thus, the evidence was sufficient to prove each Petitioner possessed the requisite mens rea.
Finally, Petitioners contend that they should have been given time to conduct further discovery in order to show that the statements made to Agent Borup were involuntary. We review the decision to cut off discovery for an abuse of discretion. California Union Ins. v. American Diversified Sav. Bank, 914 F.2d 1271, 1278-79 (9th Cir.1990), cert. denied, 498 U.S. 1088, 111 S.Ct. 966, 112 L.Ed.2d 1052 (1991). The Federal Rules of Civil Procedure are to be used as a "general guideline" in any situation not provided for in the regulations. 28 C.F.R. § 68.1. Under Federal Rule of Civil Procedure 56(f), a party seeking further discovery must show that it lacks the facts essential to resist the summary judgment motion. Here, Petitioners have not shown that there is any relevant information exclusively in the hands of the INS; Petitioners know just as much information as the INS regarding the voluntariness of their statements to Agent Borup. Further, Petitioners did not allege facts sufficient to support a showing that their statements to Agent Borup were involuntary. The only other potentially significant issue to contest would be Borup's Spanish-speaking skills, but Petitioners did not adequately question the substance of the statements or translations contained in Borup's affidavits. Thus, discovery on these issues was properly cut off.
Because an employee's use of false documents to prove employment eligibility to an employer falls within the ambit of section 1324c, the ALJs properly concluded that the INS's complaints adequately stated grounds upon which relief could be granted. The ALJs did not err in admitting and considering the INS's evidence, and summary decision was appropriate. Accordingly, we AFFIRM the ALJs' orders and DENY the petitions.
Section 1324c(a)(4) makes it unlawful for person to provide any document lawfully issued to a person other than the possessor "for the purpose of complying with section 1324a(b) of this title."
Additionally, Petitioner Villegas-Valenzuela contends that Borup's affidavit was filed late, and that the ALJ did not authorize its filing. We reject these arguments. First, the ALJ, at the very least, implicitly authorized the filing of the Borup affidavit because the ALJ considered it in his ruling. Second, the ALJ maintains discretion to accept pleadings within a time period he may fix. 28 C.F.R. § 68.11(b).