This is an action brought under Section 1383(c) of the Social Security Act and 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (hereinafter, “the Commissioner”) denying Plaintiff Donald Mikos' claims for a period of disability and disability insurance benefits (“DIB”) under Titles II and XVI of the Social Security Act. (Doc. 1). The matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommendation pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, and upon detailed consideration of the arguments raised by the parties in their respective briefs, it is respectfully recommended that the Commissioner's decision be AFFIRMED.
On April 30, 2013, Plaintiff Donald Mikos (“Mikos”) filed applications for Title II and Title XVI benefits, respectively. (Doc. 10-2, at 14). In these applications, Mikos claimed disability beginning April 30, 2013. (Doc. 10-2, at 14). The Social Security Administration initially denied Mikos' claims on June 19, 2013. (Doc. 10-2, at 14). Mikos filed a request for a hearing before an Administrative Law Judge (“ALJ”) on July 23, 2013. (Doc. 10-2, at 14). ALJ Leslie Perry-Dowdell held a video hearing on November 20, 2014. (Doc. 10-2, at 14).
In a written opinion dated March 27, 2015, the ALJ determined that Mikos was not disabled and therefore not entitled to the benefits sought. (Doc. 10-2, at 14). Mikos appealed the decision of the ALJ to the Appeals Council, who, on September 8, 2016, denied Mikos' request for review. (Doc. 10-2, at 2-5). On October 12, 2016, Mikos filed the instant action. (Doc. 1). The Commissioner responded on January 19, 2017; providing the requisite transcripts from the disability proceedings. (Doc. 9; Doc. 10). The parties then filed their respective briefs (Doc. 13; Doc. 15; Doc. 16), with Mikos alleging three errors warranted reversal or remand. (Doc. 13).
In a decision dated March 27, 2015, the ALJ determined Mikos “has not been under a disability within the meaning of the Social Security Act, from April 30, 2013, through the date of this decision.” (Doc. 10-2, at 15). The ALJ reached this conclusion after proceeding through the five-step sequential analysis required by the Social Security Act. See20 C.F.R. § 404.1520.The ALJ determined that Mikos met the insured status requirements of the Social Security Act through December 31, 2017. (Doc. 10-2, at 14).
At step one, an ALJ must determine whether the claimant is engaging in substantial gainful activity (“SGA”). 20 C.F.R § 404.1520(a)(4)(i). If a claimant is engaging in SGA, the Regulations deem them not disabled, regardless of age, education, or work experience. 20 C.F.R. § 404.1520(b). SGA is defined as work activity-requiring significant physical or mental activity-resulting in pay or profit. 20 C.F.R. § 404.1572. In making this determination, the ALJ must consider only the earnings of the claimant. 20 C.F.R. § 404.1574. The ALJ determined Mikos “has not engaged in [SGA] since April 30, 2013, the alleged onset date.” (Doc. 10-2, at 16). Thus, the ALJ's analysis proceeded to step two.
At step two, the ALJ must determine whether the claimant has a medically determinable impairment that is severe or a combination of impairments that are severe. 20 C.F.R. § 404.1520(a)(4)(ii). If the ALJ determines that a claimant does not have an “impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities, [the ALJ] will find that [the claimant] does not have a severe impairment and [is], therefore, not disabled.” 20 C.F.R. § 1520(c). If a claimant establishes a severe impairment or combination of impairments, the analysis continues to the third step.
At step three, the ALJ must determine whether the severe impairment or combination of impairments meets or equals the medical equivalent of an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (20 C.F.R. §§ 404.1520(d); 404.1525; 404.1526). If the ALJ determines that the claimant's impairments meet these listings, then the claimant is considered disabled. 20 C.F.R. § 404.1520(a)(4)(iii). The ALJ determined that none of Mikos' impairments, considered individually or in combination, met or equaled a Listing. (Doc. 10-2, at 18). Specifically, the ALJ considered Listings 12.04 (affective disorders); 12.06 (anxiety related disorders); and 12.08 (personality disorders). (Doc. 10-2, at 18).
has the [RFC] to perform a full range of work at all exertional levels. However, this individual has non-exertional limitations. Specifically, this individual is limited to performing routine and repetitive tasks that are performed in an environment that is free of fast-paced production requirements. This individual should not work with the public. His work should be with things and not people. He would only take instruction or redirection from a supervisor, and no immediate response is required of the worker unless clarification is necessary.
Having assessed a claimant's RFC, at step four the ALJ must determine whether the claimant has the RFC to perform the requirements of their past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). A finding that the claimant can still perform past relevant work requires a determination that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). Past relevant work is defined as work the claimant has done within the past 15 years, that was substantial gainful activity, and that lasted long enough for the claimant to learn how to do it. 20 C.F.R. § 404.1560(b). If the claimant cannot perform past relevant work, or has no past relevant work, then the analysis proceeds to the fifth step.
The ALJ determined Mikos is unable to perform past relevant work. (Doc. 10-2, at 27). The ALJ noted past relevant work “for parts and supplies, ” as a packager, and office clerk, but the limitations found in Mikos' RFC precluded a return to any of these positions. (Doc. 10-2, at 27).
At step five of the sequential analysis process, an ALJ considers the claimant's age, education, and work experience to see if a claimant can make the adjustment to other work. 20 C.F.R. § 404.1520(a)(4)(v). These factors are not considered when evaluating a claimant's ability to perform past relevant work. 20 C.F.R. § 404.1560(b)(3). If a claimant has the ability to make an adjustment to other work, they will not be considered disabled. 20 C.F.R. § 404.1520(a)(4)(v).
The ALJ made vocational determinations that Mikos was 39 years old on the alleged onset date, defined as a younger individual age 18 - 49 by the Regulations. 20 C.F.R. § 404.1563. (Doc. 10-2, at 27). The ALJ also noted that Mikos “has at least a high school education and is able to communicate in English” as considered in 20 C.F.R. § 404.1564. (Doc. 10-2, at 27). The ALJ determined that upon consideration of these factors, Mikos' RFC, and the testimony of a vocational expert, “there are jobs that exist in significant numbers in the national economy that the claimant can perform.” (Doc. 10-2, at 27). The ALJ specifically identified occupations of laundry worker, sorter, and laminator. (Doc. 10-2, at 28).
As a result of this analysis, the ALJ determined that Mikos was not disabled and denied Mikos' applications for benefits. (Doc. 10-2, at 28).
In order to receive benefits under Title II or Title XVI of the Social Security Act, a claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). To satisfy this requirement, a claimant must have a severe physical or mental impairment that makes it impossible to do his or her previous work or any other substantial gainful activity that exists in significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Additionally, to be eligible to receive benefits under Title II of the Social Security Act, a claimant must be insured for disability insurance benefits. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131.
In evaluating whether a claimant is disabled as defined in the Social Security Act, the Commissioner follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). Under this process, the Commissioner must determine, in sequence: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment; (4) whether the claimant is able to do past relevant work, considering his or her residual functional capacity (“RFC”); and (5) whether the claimant is able to do any other work that exists in significant numbers in the national economy, considering his or her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). The claimant bears the initial burden of demonstrating a medically determinable impairment that prevents him or her from doing past relevant work. 20 C.F.R. § 404.1512(a); 20 C.F.R. § 416.912(a). Once the claimant has established at step four that he or she cannot do past relevant work, the burden then shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform that are consistent with his or her RFC, age, education, and past work experience. 20 C.F.R. § 404.1512(f); 20 C.F.R. § 416.912(f).


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Bryce Burton, et al. v. Chrysler Group, LLC, Case No. 8:10-cv-00201 (D.S.C. Jan. 27, 2010). A class was not certified in this case.
Mark W. Coerver v. Linktech Worldwide, Inc., Case No. 2:14-cv-07972 (C.D. Cal. Oct. 15, 2014). This case was settled on behalf of the individual plaintiff only, and dismissed with prejudice on December 4, 2014 (Dkt. No. 17). No class was ever certified in this matter.
Wade Gaines Kilpatrick, et al. v. Caribbean Cruise Line, Inc., et al., Case No. 0:14-cv-61572 (S.D. Fla. July 9, 2014). This is a currently pending TCPA which the trial court stayed pending the outcome of matter before the U.S. Supreme Court. No class has been certified yet.
Kevin J. Oliver, et al. v. DirecTV, LLC, Case No. 1:14-cv-07794 (N.D. Ill. Oct. 6, 2014). This case was settled on behalf of individual plaintiffs only, and dismissed with prejudice on July 9, 2015 (Dkt. No. 56). No class was ever certified in this matter.
Robert G. Olver, et al. v. Kaplan, Inc., et al., Case No. 1:15-cv-00549 (N.D. Ga. Feb. 24, 2015). This case was settled on behalf of individual plaintiff only, and dismissed with prejudice on February 2, 2016 (Dkt. No. 44). No class was ever certified in this matter.
John Colin Suttles, et al. v. Mutual of Omaha Ins. Co., et al., Case No. 1:14-cv-00752 (W.D. Tex. Aug. 11, 2014). This is a currently pending TCPA class action in the late stages of discovery. No class has been certified yet.
John Colin Suttles, et al. v. Specialty Graphics, Inc., Case No. 1:14-cv-00505 (W.D. Tex. May 30, 2014). The parties entered a class settlement. The court granted preliminary approval naming personal injury lawyers in Houston, Hughes Ellzey, as class counsel on February 23, 2016 [Dkt. No. 67].
Raymond S. Tolson, IV, et al. v. National Sports Services, Inc., et al., Case No. 1:14-cv-00442 (W.D. Tex. May 9, 2014). This case was settled on behalf of the individual plaintiff only, and dismissed with prejudice on May 18, 2015 (Dkt. No. 30). No class was ever certified in this matter.
Robin Alexander Williams, et al. v. Elephant Ins. Co., et al., Case No. 1:15-cv-00119 (E.D. Va. Jan. 30, 2015). This is a recently filed and currently pending TCPA class action. No class has been certified yet.
Benjamin Thomas, et al. v. Home Credit Corp., Inc., Case No. 11-cvs-1116 (General Court of Justice Superior Court Division, North Carolina, Vance County, Nov. 7, 2011). The parties entered a class settlement, which was approved and certified by the trial court.
Sven Wust, et al. v. Porsche Cars North America, Inc., Case No. 3:11-cv-01338 (N.D. Tex. June 17, 2011), subsequently transferred into an MDL styled In Re: Porsche Cars North America, Inc., Plastic Coolant Tubes Products Liability Litigation, MDL No. 2233 (S.D. Ohio July 5, 2011) (MDL Dkt. No. 44). A settlement class was certified and Hughes Ellzey was not named as class counsel in the MDL.

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Respondents sued out writs of habeas corpus to prevent their extradition to France under the Treaty of 1939 (37 Stat. 1526). They are native-born citizens of the United States and are charged with the commission of crimes in France which are among the extraditable offenses specified in the treaty. Having fled to the United States, they were arrested in New York City, on the request of the French authorities, under a preliminary warrant issued by a United States Commissioner, and were held for extradition proceedings. By the writs of habeas corpus, the jurisdiction of the Commissioner was challenged upon the ground that, because the treaty excepted citizens of the United States, the President had no constitutional authority to surrender the respondents to the French Republic.
apprehension and commitment for trial if the crime or offense had been there committed."
"Article v. Neither of the contracting Parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention."
The Circuit Court of Appeals, reversing the orders of the District Judge, sustained the contention of the respondents and directed their discharge. 81 F.2d 32. This Court granted certiorari.
"to the existence in the municipal law of many nations of provisions prohibition the extradition of citizens, the United States has in several of its extradition treaties clauses exempting citizens from their obligation."
Accordingly, we divided the treaties in force into two classes, "those which expressly exempt citizens, and those which do not." Id., pp. 229 U. S. 466-467.
The effect of the exception of citizens in the treaty with France of 1909, now under consideration, must be determined in the light of the principles which inhere in our constitutional system. The desirability, frequently asserted by the representatives of our government and demonstrated by their arguments and the discussions of juries, of providing for the extradition of nationals of the asylum state is not a substitute for constitutional authority. The surrender of its citizens by the government of the United States must find its sanction in our law.
has been, and practice has been in accordance with it, that, in the absence of a conventional or legislative provision, there is no authority vested in any department of the government to seize a fugitive criminal and surrender him to a foreign power. [Footnote 4]"
Counsel for the petitioners do not challenge the soundness of this general opinion and practice. It rests upon the fundamental consideration that the Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law. There is no executive discretion to surrender him to a foreign government unless that discretion is granted by law. It necessarily follows that, as the legal authority does not exist save as it is given by act of Congress or by the terms of a treaty, it is not enough that statute or treaty does not deny the power to surrender. It must be found that statute or treaty confers the power.
the accused, he is entitled to a hearing, and, upon evidence deemed to be sufficient to sustain the charge "under the provisions of the proper treaty or convention," the charge with the evidence is to be certified to the Secretary of State to the end that a warrant may issue upon the requisition of the proper authorities of such foreign government, "for the surrender of such person, according to the stipulations of the treaty or convention." R.S. § 5270; 18 U.S.C. § 651.
It is manifest that the Act does not attempt to confer power upon the Executive to surrender any person, much less a citizen of the United States, to a foreign government where an extradition treaty or convention does not provide for such surrender. The question then is the narrow one whether the power to surrender the respondents in this instance is conferred by the treaty itself.
Third. It is a familiar rule that the obligations of treaties should be liberally construed so as to give effect to the apparent intention of the parties. Tucker v. Alexandroff, 183 U. S. 424, 183 U. S. 437; Jordan v. Tashiro, 278 U. S. 123, 278 U. S. 127; Factor v. Laubenheimer, 290 U. S. 276, 290 U. S. 293-294. But, in this instance, there is no question for construction so far as the obligations of the treaty are concerned. The treaty is explicit in the denial of any obligation to surrender citizens of the asylum state: "Neither of the contracting Parties shall be bound to deliver up its own citizens."
United States v. Rauscher, supra, p. 119 U. S. 418. Examining the treaty in that aspect, it is our duty to interpret it according to its terms. These must be fairly construed, but we cannot add to or detract from them.
Obviously the treaty contains no express grant of the power now invoked. Petitioners point to Article I, which states that the two governments "mutually agree to deliver up persons" who are charged with any of the specified offenses. Petitioners urge that the word "persons" includes citizens of the asylum state as well as all others. But Article I is the agreement to deliver. It imposes the obligation of that agreement. Article I does not purport to grant any power to surrender save as the power is related to and derived from that obligation. The word "persons" in Article I describes those who fall within the agreement and with respect to whom the obligation is assumed. As Article V provides that there shall be no obligation on the part of either party to deliver up its own citizens, the latter are necessarily excepted from the agreement in Article I and from the "persons" there described. The fact that the exception is contained in a separate article does not alter its effect. That effect is precisely the same as though Article I had read that the two governments "mutually agree to deliver up persons except its own citizens or subjects."
of denials of obligation would be, at the best, an extremely tenuous basis for implying a power which in order to exist must be affirmatively granted. Of far greater significance is the fact that a familiar clause -- found in several of our treaties -- which qualifies the exception of citizens by expressly conferring discretionary power to surrender them was omitted in the treaty with France.
"Neither of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention, but they shall have the power to deliver them up if in their discretion it be deemed proper to do so."
the power to deliver them up, if, in its discretion, it be deemed proper to do so. [Footnote 8]"
We must assume that the representatives of the United States had these clauses before them when they negotiated the treaty with France, and that the omission was deliberate. And the fact that our government had favored extradition treaties without excepting citizens puts the omission of the qualifying grant of discretionary power in a strong light.
with "the practice observed" by the government of the United States toward the Mexican government "in similar cases." In 1874, one Perez, a Mexican, committed a murder in Texas and escaped to Mexico. Our Secretary of State, Mr. Fish, instructed the American Ambassador that, although the surrender could not be demanded as of right and would not be asked as a favor, or even accepted with an understanding that it would be reciprocated, the circumstances might be made known to the Mexican government with a view to ascertain whether it would voluntarily surrender the fugitive. The Mexican government declined the surrender. In another case, arising in 1877, the question of the power of the Mexican government to surrender its citizens to the United States came before its federal Supreme Court. While it appeared that the fact of Mexican citizenship was not conclusively established, the court was of the view that the individual guarantees of the Mexican Constitution would not be violated by the surrender.
many of our extradition treaties, was held to negative any obligation to surrender, and thus to leave the authorities of this government without authority to act in such a case. After due consideration, the department is of opinion that the construction given to the treaty in the Trimble case is correct."
"In view of this [the Trimble case] and several prior and subsequent cases in which a similar construction has been given to the treaty, the government is precluded from demanding the extradition of the fugitives in the present instance."
The treaty with France of 1843 made no exception of citizens. France, however, refused to recognize an obligation under that treaty to surrender her citizens. [Footnote 16] In inserting the exception in the new treaty, a clause was chosen under which Secretaries of State and a federal court had held that the President had no discretionary power to surrender citizens of this country. Notwithstanding this, that excepting clause was inserted without qualification, and a familiar clause granting a discretionary power was omitted . No provision was inserted to confer such a power. It was upon that basis that the treaty was negotiated and ratified. In these circumstances, we know of no rule of construction which would permit us to supply the omission.
of Appeals points out, the Anglo-Belgian treaty there under consideration had its own history and background -- quite different from that which we have here -- upon which the case turned. It does not present a persuasive analogy.
Applying, as we must, our own law in determining the authority of the President, we are constrained to hold that his power, in the absence of statute conferring an independent power, must be found in the terms of the treaty, and that, as the treaty with France fails to grant the necessary authority, the President is without power to surrender the respondents.
However regrettable such a lack of authority may be, the remedy lies with the Congress, or with the treatymaking power wherever the parties are willing to provide for the surrender of citizens, and not with the courts.
* Together with No. 7, Valentine, Police Commissioner, et al. v. U.S. ex rel. George W. Neidecher, and No. 8, Valentine, Police Commissioner, et al. v. U.S. ex rel. Aubrey Neidecker. On writs of certiorari to the Circuit Court of Appeals for the Second Circuit.
Moore, Int.Law Dig., vol. IV, § 594; Moore on Extradition, vol. I, pp. 159-162.
Great Britain, 1794, art. XXVII, 1 Malloy, Treaties, p. 605; 1842, art. X, id., p. 655; 1889, id., p. 740; 1931, 47 Stat. 2122; France, 1843, 1 Malloy, p. 526; Italy, 1868, id., p. 966. See also Switzerland, 1850, art. XIII, 2 Malloy, p. 1767; Venezuela, 1860, art. XXVII, 2 Malloy, p. 1854; Dominican Republic, 1867, art. XXVII, 1 Malloy, p. 413; Nicaragua, 1870, 2 Malloy, p. 1287; Orange Free State, 1871, article VIII, 2 Malloy, p. 1312; Ecuador, 1872, 1 Malloy, p. 436.
1 Malloy, 1027. Quoted in Charlton v. Kelly, 229 U. S. 447, 229 U. S. 467.
"In no case shall the nationality of the person accused be an impediment to his extradition, under the conditions stipulated by the present treaty, but neither Government shall be bound to deliver its own citizens for extradition under this Convention; but either shall have the power to deliver them up if, in its discretion, it be deemed proper to do so."
The same phraseology is used in the treaty with the Orange Free State, 1896, Art. V, 2 Malloy 1316.
1 Malloy 1186. The treaties with Guatemala, 1903, art. 5, 1 Malloy 881, and with Nicaragua, 1905, 2 Malloy 1295, have the same provision.
"The obligation to grant extradition shall not in any case extend to the citizens of the two parties, but the executive authority of each shall have power to deliver them up if, in its discretion, it is deemed proper to do so."
Moore on Extradition, vol. I, pp. 164-167; Moore, Int.Law Dig., vol. IV, pp. 301-303.
"Thus it appears that, by the opinions of several Attorneys-General, by the decisions of our courts, and by the rulings of the Department of State, the President has not, independent of treaty provision, the power of extraditing an American citizen, and the only question to be considered is whether the treaty with Mexico confers that power."
"By the treaty with Mexico proclaimed June 20, 1862, this country places itself under obligations to Mexico to surrender to justice persons accused of enumerated crimes committed within the jurisdiction of Mexico who shall be found within the territory of the United States, and further provides that that obligation shall not extend to the surrender of American citizens. The treaty confers upon the President no affirmative power to surrender an American citizen. The treaty between the United States and Mexico creates an obligation on the part of the respective governments, and does no more, and where the obligation ceases, the power falls. It is true that treaties are the laws of the land, but a statute and a treaty are subject to different modes of construction. If a statute by the first section should say, the President of the United States shall surrender to any friendly power any person who has committed a crime against the laws of that power, but shall not be bound so to surrender American citizens, it might be argued, perhaps correctly, that the President had a discretion whether he would or would not surrender an American citizen. But a treaty is a contract, and must be so construed. It confers upon the President only the power to perform that contract. I understand the treaty with Mexico as reading thus: the President shall be bound to surrender any person guilty of crime unless such person is a citizen of the United States."
"Such being the construction of the treaty, and believing that the time to prevent a violation of the law of extradition was before the citizens left the jurisdiction of the United States, I telegraphed the Governor of Texas that an American citizen could not legally be held under the treaty for extradition."
"It would be a great evil that those guilty of high crime, whether American citizens or not, should go unpunished; but even that result could not justify in usurpation of power."
Documents Parlementaires (1909), Chambre des Deputes, Annexe 2391; id., Senat, Annexe 2338.


The U.S. Supreme Court offered few clear clues during oral arguments Nov. 1 on how long employees and other plaintiffs who lose their case in federal court have to file any remaining state law claims in state court.
The case involves Stephanie Artis, a former D.C. Health Department employee, who says she was fired by the city for blowing the whistle about workplace discrimination. Her complaint alleged violations of both federal and D.C. law. A federal court dismissed the case, and Artis then missed the 30-day deadline to bring her remaining claims to the D.C. Superior Court.
The issue before the court in Artis v. District of Columbia is whether an employee whose federal job discrimination claims are dismissed by a federal judge has just 30 days to file in state court any state claims the federal judge didn’t dismiss or a longer period if one is provided by state rules. Or is the statute of limitations on the state law claims suspended, or “tolled,” while the case proceeds in federal court, giving the employee 30 days plus any time still remaining on the state filing deadline?
The federal rule is intended to encourage a party to bring all related claims together in a single case before a single court. Its purpose is to make sure a party may do so without forfeiting—through the expiration of a state or local court filing deadline—any state or local claims the federal court ultimately decides not to rule on.
What Did Congress Mean by ‘Toll’?
But what did Congress mean when it used the words “tolled” and “tolling” in §1367(d).
Artis’ attorney, Adam G. Unikowsky, told the justices “tolled” means to suspend, so §1367(d) must stop the clock from running on the time a party had a bring a claim in state court while the federal case is pending. The clock shouldn’t begin to run again until the claim is dismissed from the federal case or the federal case is dismissed without the federal court ruling on the state claim. That’s the common law rule and it’s one the Supreme Court has recognized as the usual rule, he said.
Thus, Artis should have had 30 days plus the nearly 13 months remaining on the three-year state statute of limitations on some of her state law claims and the extra few weeks on her other state law claim, which had a shorter, one-year state limitations period, Unikowsky said in pre-argument briefs submitted to the court. Unikowsky is a partner with Jenner & Block LLP in Washington.
The District of Columbia’s counsel, Loren L. AliKhan, countered that tolled or tolling in §1367(d) means to “remove or to take away the effect of.” Here, that means the law was simply meant to remove the penalty a plaintiff will face if a state statute of limitations expires on a state law claim while the federal case is pending, leaving the plaintiff with no time to refile the state claim in state court.
AliKhan said the D.C. Court of Appeals got it right when it rejected Artis’ attempt to bring her claims under District law in a D.C. court 59 days after the dismissal of her federal case. AliKhan is the deputy solicitor general of civil appeals in the District of Columbia Office of the Attorney General.
In support of their respective views, both sides cited traditional rules on how a law is interpreted, including whether its meaning is evident from the express language used by Congress or whether it’s necessary to probe deeper and consider Congress’ intent and the law’s history and development to discern its meaning.
The justices’ questions largely centered on those traditional rules of statutory construction and the support each side says it has for its preferred interpretation. The questions also broke down along increasingly familiar ideological lines.
Justice Elena Kagan asked, if you strip that 30-day language out of the rule, so it simply reads that the limitations period shall be tolled while the claim is pending in federal court, isn’t it clear that Congress meant to suspend state limitations periods while federal cases are pending? “I thought the ordinary meaning” of toll or tolling in the statute of limitations context is to suspend, she said. Why does the addition” of the 30-day reference support your view? she asked AliKhan.
It’s not just 30 days, AliKhan said. Section 1367(d) is unique, she said, because among federal laws of its type it references both a 30-day period and potentially longer state tolling periods. Congress knew when it enacted §1367(d) that most states have their own tolling rules for claims returning to state court from federal court, she said. In its brief to the court, the District said nearly 40 states provide their own tolling periods and that most of those provide for periods of six or 12 months for a party to refile in state court, which is considerably longer than the 30-day “federal floor” created by §1367(d).
The “stop-clock” reading of Section 1367(d) supported by Artis would have enabled her to wait roughly two years before refiling her state law claims in a local D.C. court, AliKhan said in the District’s brief. That reading would spur impractical and unfair results for states, employers, and federal defendants generally, because it would force them to defend “stale” claims, the brief argues.
Federal litigation can drag on for years and at the end of that time the memories of witnesses likely will have faded, AliKhan said during oral argument.
The District is backed in the case by the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the U.S. Conference Mayors, the International City/County Management Association, and the International Municipal Lawyers Association. Wisconsin and a coalition of 23 other states also filed a friend-of-the-court brief supporting D.C.
Unikowsky replied that there are some situations where the clause would apply under Artis’ 30-days-plus view of the rule. For example, if only five days were left on the state filing deadline when the federal case was brought, the plaintiff would benefit from a state tolling rule that provides more than 35 days (5 days plus 30 days under the federal rule) to refile a state law claim, he said.
“Yes,” there are, Unikowsky said. But they’re not relevant here because the tolling rule that Congress sets forth in §1367(d) serves a necessary federal purpose by regulating the federal courts’ handling of unresolved state claims when a federal case is dismissed, he said.
But the state law claim was already brought and being pursued as part of the federal case, Alito said. Why, he asked, does a plaintiff need extra time beyond 30 days?
“It’s not as simple as that,” Unikowsky responded. The unresolved state claims aren’t simply being refiled in state court. It also needs to be determined which state or local court they should be filed in, which specific legal claims or theories should be asserted, and whether the plaintiff needs to find a new lawyer in the event the lawyer who was handling the federal case doesn’t practice in state court, he said.
But Chief Justice John G. Roberts said the purpose of statutes of limitations, by and large, is to protect the defendant. “I’m not sure your argument makes sense,” he told Unikowsky. Roberts also said the idea of telling states they need to consider dated claims seems to raise Constitutional concerns.


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The data protection officer of i:FAO can be contacted by mailing to Uwe Mayer, DH+P Gesellschaft für Unternehmensberatung mbH, Reichertweg 10, 63069 Offenbach am Main, Germany, or by e-mail to dataprotection@ifao.net.
It is very important to us that you are completely informed about which personal data we collect from you and how we use them. The type and extent of the personal data which we process is mainly determined by how you use our website. Another decisive factor is which information you provide when using the website. We and other service providers process the information provided by you at different times when using the website to different extents, depending on the type of use of this website.
In principle, i:FAO Group GmbH collects and uses personal data only insofar as this is necessary to provide a functioning website as well as our contents and services.
What is personal data and which types are collected on this website?
If you have given your consent or if permitted by virtue of the law in order to inform you by e-mail about products and services, special and promotion offers and to send you other marketing material that could possibly be of interest to you.
In order to allow you to participate in events.
If necessary for the processing of personal data, we will obtain your consent according to Art. 6 Para. 1 lit. a.
If you follow this link you can read the entire text of the GDPR.
Following this general overview of the use of your personal data and its legal basis, we describe for the individual case below how and why we process your personal data, how long we store them and which rights you have.
When you use this website, we collect information on your geographical location. These location data enable us to provide you with location-based products and services at the respective time.
Collected information relating to your use of the website, your full URL-click stream (Uniform Resource Locator) via the and from the website (with details of data and time), the products displayed or searched for by you, answer times of the sites, download errors, duration of the display of certain sites, information relating to the site interactions (e.g. scrolling, clicking and mouse-over) as well as the methods used to leave the site.
If you have sufficiently informed yourself about us on our website and leave it again without, for example, having registered for our newsletter or carrying out any further action, we will automatically delete your data, which are necessary for the operation of our homepage when the respective session is ended (i.e. you close the browser window).
i:FAO Group GmbH and other service providers gather information in relation to your person by using cookies.
These cookies are necessary in order for you to be able to navigate on the website and can use its functions, e.g. with the access to secure areas of the website. Without these cookies services requested by you cannot be made available. These cookies do not collect any information about you, which can be used for marketing purposes. We have a legitimate interest in the use of these cookies as otherwise you cannot use our website, or we cannot present our website to you in a functional manner.
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On our website we offer you the possibility to contact us via a contact form. Your personal data which you enter in the contact form, will be transmitted to us and we store these.
The processing of your personal data is made on the basis of Art. 6 Para. 1 lit. f). We have a legitimate interest in the processing. The handling of your contact request or your concern resulting from your contact request needs processing of the personal data you entered in the contact form.
Your personal data will not be forwarded to third parties if there is no statutory obligation for the forwarding or this serves the purpose of criminal prosecution.
If contact is made per e-mail we will process your personal data based on Art. 6 Para. 1 lit. f GDPR. If the e-mail serves the conclusion of a contract, then Art. 6 Para. 1 lit. b GDPR is the legal basis for the data processing.
The personal data provided by you in the contact form or your e-mail will solely be used to process the communication with you. We require the personal data which are processed during the sending process, for the technical handling of the sending process.
We will delete the data which is processed for the sending process, if they are no longer required for the above mentioned purpose.
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You can prevent the storage of the cookies by adjusting the setting of your browser software; however we would like to point out that in this case you may not be able to use all functions of this website in full. In addition you can prevent the recording of the data generated by the cookie and which refer to your use of the website (incl. your IP address) to Google as well as the processing of these data by Google by downloading and installing the browser plugin available under the following link: http://tools.google.com/dlpage/gaoptout?hl=en.
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Analysts and providers of search engines, which support us with the improvement and optimization of our website.
Group companies or third parties in the event of a restructuring, a merger, a sale, a Joint Venture, an assignment, a transfer or all other disposals over the business operation, the fixed assets or the warehouse stocks/shareholdings in their entirety or in parts (including without a restriction in conjunction with insolvency or comparable proceedings).
It is of upmost importance to us particularly that your personal data is stored and transmitted in a secure manner. For this reason we only transmit data outside of the European Economic Area or the EEA (i.e. the member states of the European Union as well as Norway, Iceland and Liechtenstein) if this complies with the data protection law and the channel for the transmission offers appropriate protection for your personal data.
In order to ensure that your personal data enjoy an appropriate degree of protection we have implemented suitable measures with third parties with which we share your personal data in order to ensure that your personal data is processed by these third parties in a manner that is consistent with the data protection rights that is in line with the data protection laws. You can read the legal provisions of the GDPR concerning the forwarding of data to third parties in the full text here.
In order to guarantee the protection of the personal data controlled by us, we take all organizational, technical and administration-related measures to a reasonable extent. For encryption, we use https-V3. Unfortunately, no 100% security can be guaranteed for data transmissions via the internet or for data storage systems. Please do not send us any confidential information by e-mail. If you have cause to assume that your interaction with us is no longer secure (if, for example, you are convinced that the safety of an account, which you have set up in our company, is no longer guaranteed), you must inform us of the problem without delay by contacting us using the contact information on the website (please note that if you contact us by normal post the processing of your problem by us may be delayed). Moreover, please note that the communication by e-mail is not inevitably secure. Accordingly, you should not enter any credit card information in your e-mail correspondence with us.
We have explained to you above for the respective individual case how long we store your personal data and when we erase them.
This link leads you directly to the text of the GDPR law.
You have the right, on grounds relating to your particular situation, to file an objection at all times against the processing of the personal data relating to you that is carried out owing to Art. 6 Para. 1 lit. e) or f) GDPR; this shall also apply to a profiling that is supported on these provisions.
We will no longer process the personal data relating to you, unless we can demonstrate compelling legitimate grounds for the processing, which override your interests, rights and freedom, or the processing serves the establishment, exercise or defense against legal claims.
If the personal data relating to you are processed in order to conduct direct marketing you have the right to file an objection against the processing of the personal data relating to you for the purpose of such marketing at any times; this shall include profiling to the extent that it is related to such direct marketing.
If you object to the processing for purposes of direct marketing then the personal data relating to you will no longer be processed for these purposes.
You have the right to withdraw your consent under data protection law at any times. The withdrawal of the consent shall not affect the lawfulness of processing based on consent before its withdrawal.
Without prejudice to any other administrative or judicial remedy, you are entitled to lodge a complaint at a supervisory authority, in particular in the member state of your habitual residence, your place of work or the place of the alleged infringement if you are considering that the processing of the personal data relating to you infringes the GDPR.
The supervisory authority, at which the complaint was lodged, will inform the complainant on t he progress and the outcome of the complaint including the possibility of a judicial remedy pursuant to Art. 78 GDPR.
Aggregated data are forwarded to third parties. Anonymous data are forwarded to third parties. Personal data are forwarded to third parties.
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So the CJEU finally issued its UPC Telekabel Wien C-314/12 decision. It contains several good points, but also some missed opportunities (the rejections of a need of specific measures is quite a disappointment), and black-box type of issues, where only the time will tell.
But before I get to the ruling, it is very interesting to see that CJEU yet again (Scarlet, Sabam same story) did not follow a very interesting argumentation of the Advocate General Cruz Villalón, who suggested to take a look at the injunctions also from the perspective of "quality of the law". This might be a good/bad news for the pending data retention reference in Digital Rights Ireland C-293/12, where he suggested to the CJEU to invalidate the data retention directive mostly not due to proportionality considerations, but for "quality of the law" reasons. I think that his argument there is politically not acceptable for the CJEU, but let's see. So back to the website blocking.
The Court first accepts (§ 23-40) that an access provider who has no affiliation or business relationship with the infringers (streaming websites) can still be a target of the injunctions against intermediaries. This basically means that anybody who enables infringement is capable of being sued from Art. 8(3) injunctions. No surprise here.
In the second part, the Court allows some of the website blocking injunctions as such, but makes it subject to couple of conditions. The Court recalls that the case is about a maximal admissible celling of these injunctions (§ 45), and not about minimal standard required from the Member States (§ 43). This means, as I suggested earlier, that this case in fact does not answer whether the Member States have to provide for such injunctions, but only whether they are permissible when provided for under the national law.
(iii) the freedom of information of internet users, whose protection is ensured by Article 11 of the Charter.
As anticipated earlier, the right to fair trial argument did not appear in the case, but there are some consequences for it as well (see below). The relevant part of the decision are then § 49 -63.
I think this is implicit acceptance of openly formulated website blocking injunctions, and also rejection of AG's suggestion of a need for specific measures. This should make German BGH feel more comfortable with its own case-law. Not sure about ISPs.
This paragraph is slightly confusing, but I think it essentially refers to execution proceedings when an openly formulated website blocking injunction was being granted. Again, this kind of rule might make a perfect sense for a German or other lawyer who is used to negligence based liability for disobeying the rulings also in the execution proceedings. In some countries, however, execution proceedings attaches strict liability standards to disobeying of the decisions. For these countries, it might be more challenging to implement this principle. This seems to shift the entire debate of exact measures from the court proceedings to the execution proceedings. Also I keep wondering how compatible with the eCommerce Directive it would be to fine an access provider in such proceedings, as Art. 12 safe harbor might be still a limitation here (just a thought).
This is an important point. The CJEU here implicitly adheres to the prohibition of the collateral censorship as stipulated in the case-law of the ECHR. This part of the ruling should prevent some forms over-blocking e.g. by means of IP blocking when the IP address is shared.
I consider this to be the most important part of the ruling. My reading is that unless the procedural law of the Member State can guarantee that, the website blocking can not be granted at the first place. Although this remark is made in the framework of a right to the freedom of information, I believe that it can have a big impact also on the right to fair trial issue. Especially the countries that grant website blocking injunctions without any possibility to challenge them by the targeted website ex post (UK courts now incorporate such possibility), it might prevent the injunctions to be granted entirely. CJEU makes an important step by safeguarding the same for the Internet users as well. It would be interesting to see if the national law of your Member State enable that kind of challenge of a non-party. Any thoughts?
Again strict liability might be precluded in these cases.
A difficult sentence, but probably says following: website blocking must (i) make it more difficult to access the source, and [sic!] (ii) seriously discourage Internet users from accessing the blocked source. It is my understanding that unless such a measure exists, not even an open ended injunctions should be granted. I think that the analyses of Justice Arnold in his blocking cases can hold the water in this respect. This part, however, needs to be scrutinized for its impact beyond this brief comment.
My main issue with the judgment is that it rejected a need for a measure-specific injunctions as suggested by the Advocate General. The CJEU to the contrary, seems to be fine with shifting the debate to the executoin proceedings. I am not sure how flexible are these procedural rules in different countries. On the other hand, CJEU appers to set its standard for what is effective a bit higher than AG, who was also willing to accept also "easily circumventable measures". This negative parts are however somehow overweighted by a good feeling from paragraph 57 of the judgment. Let's see if the second look gives the same impression as well.
And also, an another consequence of this ruling is that the debate of what constitutes a general monitoring obligations can be perhaps again re-opend.

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049 Pa. Code § 37.36. Requirements for certification as a geologist-in-training and for licensure as a professional geologist.
§ 37.36. Requirements for certification as a geologist-in-training and for licensure as a professional geologist.
(a) General. The requirements in this section apply to candidates for certification as a geologist-in-training and candidates for subsequent licensure as a professional geologist. A candidate who meets the applicable requirements may apply at the same time both to sit for the fundamentals of geology examination and to sit for the principles and practice of geology examination to be licensed as a professional geologist as provided in § 37.36a (relating to requirements for licensure as a professional geologist without certification as geologist-in-training).
(b) Geologist-in-training. A candidate for certification as a geologist-in-training shall be of good moral character and achieve a passing score on the ASBOG fundamentals of geology examination.
(i) Graduation from an accredited institution of higher learning in the United States, having majored in geology, geophysics, geochemistry or engineering geology and having completed 30 semester hours or 45 quarter hours in the major. A student who has completed 2 years in a program and has maintained current enrollment may, with Board approval, sit for the fundamentals of geology examination, but will not be eligible for certification as a geologist-in-training until the student provides proof of graduation, including compliance with the educational content requirements of paragraph (2). The effective date of certification will be the later of the date of graduation or the date of notification from ASBOG of achieving a passing score on the fundamentals of geology examination.
(ii) Graduation from an accredited institution of higher learning in the United States that does not offer a major in geology, geophysics, geochemistry or engineering geology, having completed 30 semester hours or 45 quarter hours or an equivalent amount of geological education, including 24 semester hours or an equivalent amount in third-year or fourth-year courses or graduate courses. A student who has completed 2 years in a program and has maintained current enrollment may, with Board approval, sit for the fundamentals of geology examination, but will not be eligible for certification as an geologist-in-training until the student provides proof of graduation, including compliance with the educational content requirements of paragraph (2). The effective date of certification will be the later of the date of graduation or the date of notification from ASBOG of achieving a passing score on the fundamentals of geology examination.
(iii) Graduation from a foreign college or university that World Education Services or other Board-approved professional evaluation service deems equivalent to a bachelors degree in geology, geophysics, geochemistry or engineering geology from an accredited institution of higher learning in the United States and which satisfies the educational content requirements of paragraph (2).
(2) The formal education required under this subsection must include field geology and structural geology coursework that is sufficient to demonstrate that the candidate has educational experience in tectonics and fractured bedrock geology and the field methods needed to measure, map and evaluate geologic data.
(c) Professional geologist. A candidate for licensure as a professional geologist shall be of good moral character, be certified as a geologist-in-training and achieve a passing score on the ASBOG principles and practice of geology examination.
(i) Five years of experience performing geological services or work in a position that requires independent judgment, competence and accountability.
(ii) Five years of experience performing geological services or work, including 3 years under the supervision of a professional geologist, except that experience acquired prior to February 16, 1993, may be under the supervision of an unlicensed geologist who, through education and experience, possesses the equivalent level of expertise as that of a professional geologist.
(iii) Five years of progressive full-time teaching experience in a geological curriculum, including senior-level or graduate-level coursework, at an accredited institution of higher learning.
(2) The experience required under this subsection must require the utilization, application and interpretation of fundamental and practical principles of the geological science and be of a character and grade to qualify the candidate to assume responsible charge of the work involved in the practice of geology. Acceptable experience may include the technical completeness reviews or inspections of unfinalized work product. Unacceptable experience includes routine sampling, laboratory work and geological drafting. A graduate degree in geology, geophysics, geochemistry or engineering geology may be substituted as part of the experience requirements in this paragraph, at a rate of 1 year for a masters degree and 1 year for a doctoral degree. Credit for graduate degrees may not exceed 2 years of experience.
The provisions of this § 37.36 amended under sections 4(b) and (l), 4.2, 4.3 and 4.4 of the Engineer, Land Surveyor and Geologist Registration Law (63 P. S. § § 151(b) and (l), 151.2, 151.3 and 151.4).
The provisions of this § 37.36 adopted October 25, 1996, effective October 26, 1996, 26 Pa.B. 5106; amended February 14, 2014, effective February 15, 2014, 44 Pa.B. 888. Immediately preceding text appears at serial pages (221136) to (221137).
This section cited in 49 Pa. Code § 37.36a (relating to requirements for licensure as a professional geologist without certification as a geologist-in-training).


The Board shall consist of twenty-four members to be appointed by the President and of the Director ex officio. In addition to any powers and functions otherwise granted to it by this chapter, the Board shall establish the policies of the Foundation, within the framework of applicable national policies as set forth by the President and the Congress.
The Board shall have an Executive Committee as provided in section 1865 of this title, and may delegate to it or to the Director or both such of the powers and functions granted to the Board by this chapter as it deems appropriate.
The persons nominated for appointment as members of the Board (1) shall be eminent in the fields of the basic, medical, or social sciences, engineering, agriculture, education, research management, or public affairs; (2) shall be selected solely on the basis of established records of distinguished service; and (3) shall be so selected as to provide representation of the views of scientific and engineering leaders in all areas of the Nation. In making nominations under this section, the President shall give due regard to equitable representation of scientists and engineers who are women or who represent minority groups. The President is requested, in the making of nominations of persons for appointment as members, to give due consideration to any recommendations for nomination which may be submitted to him by the National Academy of Sciences, the National Academy of Engineering, the National Association of State Universities and Land Grant Colleges, the Association of American Universities, the Association of American Colleges, the Association of State Colleges and Universities, or by other scientific, engineering, or educational organizations.
The term of office of each member of the Board shall be six years; except that any member appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed for the remainder of such term. Any person, other than the Director, who has been a member of the Board for twelve consecutive years shall thereafter be ineligible for appointment during the two-year period following the expiration of such twelfth year.
The Board shall meet annually on the third Monday in May unless, prior to May 10 in any year, the Chairman has set the annual meeting for a day in May other than the third Monday, and at such other times as the Chairman may determine, but he shall also call a meeting whenever one-third of the members so request in writing. The Board shall adopt procedures governing the conduct of its meetings, including delivery of notice and a definition of a quorum, which in no case shall be less than one-half plus one of the confirmed members of the Board.
The election of the Chairman and Vice Chairman of the Board shall take place at each annual meeting occurring in an even-numbered year. The Vice Chairman shall perform the duties of the Chairman in his absence. In case a vacancy occurs in the chairmanship or vice chairmanship, the Board shall elect a member to fill such vacancy.
The Board may, with the concurrence of a majority of its members, permit the appointment of a staff consisting of professional staff members, technical and professional personnel on leave of absence from academic, industrial, or research institutions for a limited term, and such operations and support staff members as may be necessary. Such staff shall be appointed by the Chairman and assigned at the direction of the Board. The professional members and limited term technical and professional personnel of such staff may be appointed without regard to the provisions of title 5 governing appointments in the competitive service, and the provisions of chapter 51 of such title relating to classification, and shall be compensated at a rate not exceeding the maximum rate payable under section 5376 of such title, as may be necessary to provide for the performance of such duties as may be prescribed by the Board in connection with the exercise of its powers and functions under this chapter. Section 1873(a)(3) of this title shall apply to each limited term appointment of technical and professional personnel under this subsection. Each appointment under this subsection shall be subject to the same security requirements as those required for personnel of the Foundation appointed under section 1873(a) of this title.
The Board is authorized to establish such special commissions as it may from time to time deem necessary for the purposes of this chapter.
The Board is also authorized to appoint from among its members such committees as it deems necessary, and to assign to committees so appointed such survey and advisory functions as the Board deems appropriate to assist it in exercising its powers and functions under this chapter.
(1) The Board shall render to the President and the Congress no later than January 15 of each even numbered year, a report on indicators of the state of science and engineering in the United States.
(2) The Board shall render to the President and the Congress reports on specific, individual policy matters within the authority of the Foundation (or otherwise as requested by the Congress or the President) related to science and engineering and education in science and engineering, as the Board, the President, or the Congress determines the need for such reports.
Portions of Board meetings in which the Board considers proposed Foundation budgets for a particular fiscal year may be closed to the public until the President's budget for that fiscal year has been submitted to the Congress.
Members of the Board shall be required to file a financial disclosure report under title II of the Ethics in Government Act of 1978 (5 U.S.C. App.; 92 Stat. 1836), except that such reports shall be held confidential and exempt from any law otherwise requiring their public disclosure.
The Ethics in Government Act of 1978, referred to in subsec. (l), is Pub. L. 95–521, Oct. 26, 1978, 92 Stat. 1824. Title II of the Ethics in Government Act of 1978 was set out in the Appendix to Title 5, Government Organization and Employees, prior to repeal by Pub. L. 101–194, title II, §201, Nov. 30, 1989, 103 Stat. 1724. For complete classification of this Act to the Code, see Short Title note set out under section 101 of Pub. L. 95–521 in the Appendix to Title 5 and Tables.
2012—Subsec. (a). Pub. L. 112–166 struck out ", by and with the advice and consent of the Senate," after "appointed by the President".
2011—Subsec. (g). Pub. L. 111–358, §504(a), struck out "not more than 5" before "professional staff members".
Subsec. (j)(2). Pub. L. 111–358, §504(b), inserted "within the authority of the Foundation (or otherwise as requested by the Congress or the President)" after "individual policy matters".
2007—Subsec. (g). Pub. L. 110–69, §7015(b), amended subsec. (g) generally. Prior to amendment, subsec. (g) related to the appointment of a Board staff of not more than five professional staff members and any necessary clerical staff members and the compensation and security requirements for such staff.
Subsec. (j). Pub. L. 110–69, §7016, substituted "President and" for "President, for submission to" in par. (1) and for "President for submission to" in par. (2).
2002—Subsec. (e). Pub. L. 107–368, §15(a)(1), substituted "The Board shall adopt procedures governing the conduct of its meetings, including delivery of notice and a definition of a quorum, which in no case shall be less than one-half plus one of the confirmed members of the Board." for "A majority of the members of the Board shall constitute a quorum. Each member shall be given notice, not less than fifteen days prior to any meeting, of the call of such meeting."
Subsec. (g). Pub. L. 107–368, §15(c), substituted "Such staff shall be appointed by the Chairman and assigned at the direction of the Board." for "Such staff shall be appointed by the Director, after consultation with the chairman of the Board and assigned at the direction of the Board."
1998—Subsec. (g). Pub. L. 105–207, §202(a)(1)(A), substituted "the maximum rate payable under section 5376" for "the appropriate rate provided for individuals in grade GS–18 of the General Schedule under section 5332".
Subsecs. (k), (l). Pub. L. 105–207, §202(a)(1)(B), redesignated subsec. (k), relating to requirement of Board members to file financial disclosure report, as (l).
1988—Subsec. (k). Pub. L. 100–570, §108, added subsec. (k) relating to requirement of Board members to file financial disclosure report.
Pub. L. 100–570, §105(a), added subsec. (k) relating to closed meetings.
1985—Subsec. (c). Pub. L. 99–159, §110(a)(12), inserted "and engineering", "and engineers", and "the National Academy of Engineering," and inserted ", engineering," after "other scientific".
Subsec. (e). Pub. L. 99–159, §109(a), struck out requirement that notice be made to members by registered or certified mail mailed to the last known address of record.
1982—Subsec. (j). Pub. L. 97–375 substituted provisions requiring a report in each even numbered year on the state of science and engineering, and reports on specific policy matters, as needed, for provisions requiring the Board to render an annual report to the President, for submission to the Congress on or before March 31 in each year, to deal essentially, though not necessarily exclusively, with policy issues or matters affecting the Foundation or with which the Board in its official role as the policymaking body of the Foundation was concerned.
1980—Subsec. (c). Pub. L. 96–516 inserted provisions respecting nominations of women and minority groups.
1977—Subsec. (j). Pub. L. 95–99 added subsec. (j).
1976—Subsec. (a). Pub. L. 94–471, §9(a), inserted reference to the framework of applicable national policies as set forth by the President and the Congress.
Subsec. (g). Pub. L. 94–471, §9(b), inserted reference to consultation of the Director with the Chairman of the Board and substituted "GS–18" for "GS–15".
Pub. L. 94–282 redesignated subsec. (h), and all references thereto, as subsec. (g). Former subsec. (g), concerning the annual report by the National Science Board to the President and Congress, was deleted.
Pub. L. 94–273 substituted "April" for "January".
Subsecs. (h) to (j). Pub. L. 94–282 redesignated subsecs. (h) to (j) as (g) to (i), respectively.
1968—Subsec. (a). Pub. L. 90–407 substituted provisions which authorized the Board to establish the policies of the Foundation in addition to any powers and functions otherwise granted to it by this chapter, for provisions which authorized the Board, except as otherwise provided by this chapter, to exercise the authority granted to the Foundation by this chapter. Provisions of this subsection, which enumerated the qualifications of persons nominated for appointment to the Board and provided for the specified organizations to make recommendations to the President of individuals qualified for nomination, were designated as subsec. (c).
Subsec. (b). Pub. L. 90–407 added subsec. (b). Former subsec. (b) redesignated (d).
Subsec. (c). Pub. L. 90–407 redesignated provisions of former subsec. (a) as (c) and added social science and research management to the enumerated fields of eminence, and substituted "the National Association of State Universities and Land Grant Colleges, the Association of American Universities, the Association of American Colleges, the Association of State Colleges and Universities" for "the Association of Land Grant Colleges and Universities, the National Association of State Universities, the Association of American Colleges". Former subsec. (c), which provided that "The President shall call the first meeting of the Board, at which the first order of business shall be the election of a chairman and a vice chairman", was struck out as executed.
Subsec. (d). Pub. L. 90–407 redesignated former subsec. (b) as (d), substituted "term of office of each member" for "term of office of each voting member", struck out "the terms of office of the members first taking office after May 10, 1950, shall expire, as designated by the President at the time of appointment, eight at the end of two years, eight at the end of four years, and eight at the end of six years, after May 10, 1950", and provided for exemption of Director from prohibition against reappointment within two years following twelve consecutive years of Board membership. Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 90–407 redesignated former subsec. (d) as (e) and substituted "A majority of the members of the Board shall constitute a quorum" for "A majority of the voting members of the Board shall constitute a quorum". Former subsec. (e) redesignated (f).
Subsec. (f). Pub. L. 90–407 redesignated former subsec. (e) as (f) and substituted provisions that the election of the Chairman and Vice Chairman take place at each annual meeting occurring in an even-numbered year for provisions that their election take place at the first meeting of the National Science Board following the enactment of Pub. L. 86–232, and that thereafter such election take place at the second annual meeting occurring after each such election.
Subsecs. (g) to (j). Pub. L. 90–407 added subsecs. (g) to (j).
1960—Subsec. (d). Pub. L. 86–507 inserted "or by certified mail" after "registered mail".
1959—Subsec. (d). Pub. L. 86–232 changed annual meeting of Board from first Monday in December to third Monday or other designated day in May.
Subsec. (e). Pub. L. 86–232 substituted provision for an election of a Chairman and Vice Chairman of the Board at first meeting of Board following enactment of Pub. L. 86–232 and at each second annual meeting thereafter in place of provision for election of the first Chairman and Vice Chairman to serve until first Monday in December next succeeding date of election and for election of subsequent officers for terms of two years thereafter.
For reference to maximum rate under section 5376 of Title 5, Government Organization and Employees, see section 2(d)(3) of Pub. L. 110–372, set out as an Effective Date of 2008 Amendment note under section 5376 of Title 5.
Advisory committees in existence on Jan. 5, 1973, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. Advisory committees established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. See section 14 of Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 776, set out in the Appendix to Title 5, Government Organization and Employees.


(a) Petition for Permission to Appeal.
(1) To request permission to appeal when an appeal is within the court of appeals’ discretion, a party must file a petition for permission to appeal. The petition must be filed with the circuit clerk with proof of service on all other parties to the district-court action.
(2) The petition must be filed within the time specified by the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a notice of appeal.
(3) If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party's motion, to include the required permission or statement. In that event, the time to petition runs from entry of the amended order.
(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument.
(2) A party may file an answer in opposition or a cross-petition within 10 days after the petition is served.
(3) The petition and answer will be submitted without oral argument unless the court of appeals orders otherwise.
(2) a handwritten or typewritten paper must not exceed 20 pages.
(d) Grant of Permission; Fees; Cost Bond; Filing the Record.
(B) file a cost bond if required under Rule 7.
(2) A notice of appeal need not be filed. The date when the order granting permission to appeal is entered serves as the date of the notice of appeal for calculating time under these rules.
(3) The district clerk must notify the circuit clerk once the petitioner has paid the fees. Upon receiving this notice, the circuit clerk must enter the appeal on the docket. The record must be forwarded and filed in accordance with Rules 11 and 12(c).
This rule is derived in the main from Third Circuit Rule 11(2), which is similar to the rule governing appeals under 28 U.S.C. §1292(b) in a majority of the circuits. The second sentence of subdivision (a) resolves a conflict over the question of whether the district court can amend an order by supplying the statement required by §1292(b) at any time after entry of the order, with the result that the time fixed by the statute commences to run on the date of entry of the order as amended. Compare Milbert v. Bison Laboratories, 260 F.2d 431 (3d Cir., 1958) with Sperry Rand Corporation v. Bell Telephone Laboratories, 272 F.2d (2d Cir., 1959), Hadjipateras v. Pacifica, S.A., 290 F.2d 697 (5th Cir., 1961), and Houston Fearless Corporation v. Teter, 313 F.2d 91 (10th Cir., 1962). The view taken by the Second, Fifth and Tenth Circuits seems theoretically and practically sound, and the rule adopts it. Although a majority of the circuits now require the filing of a notice of appeal following the grant of permission to appeal, filing of the notice serves no function other than to provide a time from which the time for transmitting the record and docketing the appeal begins to run.
The proposed amendment adapts to the practice in appeals from interlocutory orders under 28 U.S.C. §1292(b) the provisions of proposed Rule 3(e) above, requiring payment of all fees in the district court upon the filing of the notice of appeal. See Note to proposed amended Rule 3(e), supra.
Subdivision (c). The amendment makes it clear that a court may require a different number of copies either by rule or by order in an individual case. The number of copies of any document that a court of appeals needs varies depending upon the way in which the court conducts business. The internal operation of the courts of appeals necessarily varies from circuit to circuit because of differences in the number of judges, the geographic area included within the circuit, and other such factors. Uniformity could be achieved only by setting the number of copies artificially high so that parties in all circuits file enough copies to satisfy the needs of the court requiring the greatest number. Rather than do that, the Committee decided to make it clear that local rules may require a greater or lesser number of copies and that, if the circumstances of a particular case indicate the need for a different number of copies in that case, the court may so order.
In 1992 Congress added subsection (e) to 28 U.S.C. §1292. Subsection (e) says that the Supreme Court has power to prescribe rules that “provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for” in section 1292. The amendment of Rule 5 was prompted by the possibility of new rules authorizing additional interlocutory appeals. Rather than add a separate rule governing each such appeal, the Committee believes it is preferable to amend Rule 5 so that is will govern all such appeals.
In addition the Federal Courts Improvement Act of 1996, Pub. L. 104–317, abolished appeals by permission under 28 U.S.C. §636(c)(5), making Rule 5.1 obsolete.
This new Rule 5 is intended to govern all discretionary appeals from district-court orders, judgments, or decrees. At this time that includes interlocutory appeals under 28 U.S.C. §1292(b), (c)(1), and (d)(1) & (2). If additional interlocutory appeals are authorized under §1292(e), the new Rule is intended to govern them if the appeals are discretionary.
Subdivision (a). Paragraph (a)(1) says that when granting an appeal is within a court of appeals’ discretion, a party may file a petition for permission to appeal. The time for filing provision states only that the petition must be filed within the time provided in the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a notice of appeal.
Section 1292(b), (c), and (d) provide that the petition must be filed within 10 days after entry of the order containing the statement prescribed in the statute. Existing Rule 5(a) provides that if a district court amends an order to contain the prescribed statement, the petition must be filed within 10 days after entry of the amended order. The new rule similarly says that if a party cannot petition without the district court's permission or statement that necessary circumstances are present, the district court may amend its order to include such a statement and the time to petition runs from the entry of the amended order.
The provision that the Rule 4(a) time for filing a notice of appeal should apply if the statute or rule is silent about the filing time was drawn from existing Rule 5.1.
Subdivision (b). The changes made in the provisions in paragraph (b)(1) are intended only to broaden them sufficiently to make them appropriate for all discretionary appeals.
In paragraph (b)(2) a uniform time—7 days—is established for filing an answer in opposition or cross-petition. Seven days is the time for responding under existing Rule 5 and is an appropriate length of time when dealing with an interlocutory appeal. Although existing Rule 5.1 provides 14 days for responding, the Committee does not believe that the longer response time is necessary.
Subdivision (c). Subdivision (c) is substantively unchanged.
Subdivision (d). Paragraph (d)(2) is amended to state that “the date when the order granting permission to appeal is entered serves as the date of the notice of appeal” for purposes of calculating time under the rules. That language simply clarifies existing practice.
Subdivision (c). A petition for permission to appeal, a cross-petition for permission to appeal, and an answer to a petition or cross-petition for permission to appeal are all “other papers” for purposes of Rule 32(c)(2), and all of the requirements of Rule 32(a) apply to those papers, except as provided in Rule 32(c)(2). During the 1998 restyling of the Federal Rules of Appellate Procedure, Rule 5(c) was inadvertently changed to suggest that only the requirements of Rule 32(a)(1) apply to such papers. Rule 5(c) has been amended to correct that error.
Rule 5(c) has been further amended to limit the length of papers filed under Rule 5.
Subdivision (b)(2). Subdivision (b)(2) is amended in the light of the change in Rule 26(a)'s time computation rules. Subdivision (b)(2) formerly required that an answer in opposition to a petition for permission to appeal, or a cross-petition for permission to appeal, be filed “within 7 days after the petition is served.” Under former Rule 26(a), “7 days” always meant at least 9 days and could mean as many as 11 or even 13 days. Under current Rule 26(a), intermediate weekends and holidays are counted. Changing the period from 7 to 10 days offsets the change in computation approach. See the Note to Rule 26.
Subdivision (d)(1). The time set in the former rule at 10 days has been revised to 14 days. See the Note to Rule 26.
The page limits previously employed in Rules 5, 21, 27, 35, and 40 have been largely overtaken by changes in technology. For papers produced using a computer, those page limits are now replaced by word limits. The word limits were derived from the current page limits using the assumption that one page is equivalent to 260 words. Papers produced using a computer must include the certificate of compliance required by Rule 32(g); Form 6 in the Appendix of Forms suffices to meet that requirement. Page limits are retained for papers prepared without the aid of a computer (i.e., handwritten or typewritten papers). For both the word limit and the page limit, the calculation excludes the accompanying documents required by Rule 5(b)(1)(E) and any items listed in Rule 32(f).


text:
Northstar Community Services District. Serves as general counsel to the District in connection with the operation of a major ski and resort area. Oversaw the issuance of approximately $100 million in Mello-Roos bonds for new capital projects. Advised the District on financing options and a variety of foreclosure and workouts in the wake of the economic downturn.
Three Rivers Levee Improvement Agency. Formed and serves as general counsel to the Agency, which has a record of successfully completing a levee improvement program totaling almost $1 billion, notwithstanding significant environmental constraints.
Successfully defended – by winning a motion for summary judgment – the County against a series of whistleblower claims by employees. The County also received an award of costs and fees equal to all defense costs and attorneys’ fees incurred in defending the action.
Successfully defended a public irrigation district General Manager in a two week trial against claims of workplace violence.
Regional Water Quality Control Board v. Riviera West Mutual Water Company. Downey Brand successfully defended a small water company against prosecution by the Regional Board for alleged water quality violations that had occurred several years prior to the prosecution.
Save the Plastic Bag Coalition v. City of Manhattan Beach. Downey Brand successfully represented the City and amicus curiae California League of Cities and California State Association of Counties in appeal to the California Supreme Court challenging the City’s ban on plastic bags.
City of Santee v. County of San Diego. Downey Brand served as counsel to the California Department of Corrections and Rehabilitation in a case that established the ability of a government agency to plan for future development without first preparing an environmental impact report. This was the first reported case to successfully defend preliminary planning efforts against a CEQA challenge in the wake of the California Supreme Court’s decision in Save Tara v. City of West Hollywood.
Represented the City of Riverside in a case that involved a water districts acquisition of the Temescal Water Company through a “friendly” eminent domain action. There were some interesting Brown Act issues because of the “friendly” nature of the litigation, but the case eventually settled. City of Riverside v. Elsinore Valley Municipal Water District, Riverside Superior Court, Case No. 200763.
Litigating a case where the General Manager of the public entity did not obtain the proper authority from the board to sign a contract, but signed it anyway. The case seeks rescission, and there are Brown Act issues involved. Lassen Municipal Utility District v. Kinross Gold USA, Inc., US Eastern District, Case No. 2:110CV000255-MCE-CMK.
Represented Valley Slurry Seal International (VSSI) related to a bid award the Town of Moraga where there were allegations that the Town violated the Brown Act by acting to take up off agenda business. Downey Brand demanded rescission of the vote, and consideration of a protest by VSSI to preclude the award of the contract to the low bidder. The Town quickly rescinded the award to the low bidder, allowed a protest to be filed, and ultimately awarded the contract to VSSI.
Act as General Counsel to several municipal entities and regularly advise those clients on the rules under the Brown Act. Many of these clients have not been sued or had a significant legal challenge related to Brown Act compliance.

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'Attorney General Eric Schneiderman says he’d love to have more authority to pursue public corruption cases, which even in the face of recent scandals, no one is pushing to give him.
It appears that the Commission is also concealing the Attorney General’s powers and duties by its website and letterhead, wherein it calls itself 'Moreland Commission to Investigate Public Corruption'. This is not the Commission’s name. The Governor’s Executive Order #106 creating the Commission could not be clearer in announcing that the Commission is 'to be known as the Commission to Investigate Public Corruption' (at ¶I). This is understandable as the Commission’s sweeping power to investigate public corruption in all three government branches actually comes not from the Moreland Act (Executive Law §6), but Executive Law §63 pertaining to the 'General duties' of the Attorney General [fn]. Tellingly, the Commission’s website neither posts Executive Order #106, nor Executive Law §6, nor Executive Law §63.
Clear from Executive Law §63 is that the Attorney General is an essential safeguard to ensuring governmental integrity in this state. Is that essential safeguard functioning? Such must top the Commission’s investigative agenda.
[Here demonstrated is how the Attorney General’s] misfeasance, malfeasance, and nonfeasance have facilitated an ongoing parade of horribles: (1) the brazen theft of tens of millions of taxpayer dollars in fraudulent judicial pay raises this year and over the next two years, in perpetuity: (2) an unconstitutional court-controlled attorney disciplinary law, utilized to retaliate against judicial whistle-blowing attorneys; (3) a corrupt Commission on Judicial Conduct, dumping the very complaints the law requires it to investigate; (4) violative and unconstitutional state judicial selection processes, including to the Court of Appeals; (5) obliteration of state remedies against official misconduct provided by Article 78 and motions for judicial disqualification and disclosure. All are chronicled, with substantiating documentary proof, by the CJA v. Cuomo lawsuit record.' (at pp. 4-5, underlining in the original).
Our follow-up January 24, 2013 letter further reinforced this scholarship proposal and identified that CJA v. Cuomo establishes the necessity of crafting legislation to not only rectify the perversions wrought in Executive Law §63, but for developing 'a powerful qui tam statute to protect the People from the Attorney General’s derelictions and misfeasance' (at p. 6)."
CJA's declaratory judgment action -- CJA v. Cuomo, et al.
CJA's (1st) citizen-taxpayer action -- CJA v. Cuomo, et al.
CJA's (2nd) citizen-taxpayer action -- CJA v. Cuomo, et al.