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This case, like Fondren v. Commissioner, 324 U.S. 18 , 65 S.Ct. 499, presents questions whether certain gifts to minors are gifts of 'future interests in property,' within the eaning of the Revenue Act of 1932, c. 209, 47 Stat. 169.
In 1936 the respondent, William D. Disston, created a trust for the benefit of each of his five children, three of whom were then minors. The total of his gifts that year was $71,952. The Commissioner allowed an exemption of $5000 on each gift for the children and on one to his wife. The taxpayer also was allowed the specific exemption of $40,000 provided by 505 of the Revenue Act of 1932, as amended by 301(b) of the Revenue Act of 1935, 26 U.S.C.A.Int.Rev.Acts, page 586. The net gifts for 1936 accordingly were computed to be $1952, upon which a tax was assessed and paid.
In 1937 the taxpayer added to the corpus of the trust securities valued at $25,000, of which $5000 was allocated to each child's interest, including the three who were still minors. In 1938 he created another trust for his five children, the corpus consisting of undeveloped land worth $38,581. Two of the children still were minors.
The two trusts were identical in all respects now material. The principal was divided into five equal shares, one for each child. The trusts were of the spendthrift variety. All shares of the corpus and income were to be free from 'anticipation, assignment, pledge, or obligations of beneficiaries,' as well as execution or attachment. The shares of the minors alone are now involved. Hence the nature of the trust as applicable to them only need be considered.
The taxpayer's son, William L. Disston, was nineteen in 1936 when the first trust was created. As to his share the trustees were directed, in the Second Article, 'to accumulate the net income therefrom for the benefit of William L. Disston until he reaches the age of twenty-one years, at which time to pay over to him all accumulated income, [325 U.S. 442, 444] and thereafter to pay over to him in not less than quarterly instalments the entire net income derived therefrom during his lifetime; provided, however, that upon his reaching the age of forty-five years one-half of the principal of his share shall be paid over to him free and discharged of all trusts; and upon further trust upon his death whether before or after reaching the age of forty-five years, to divide the principal of his share, or such portion thereof as is then held by the Trustees, among his then living descendants ... in such amounts as he shall by will appoint, and in default of such appointment, to divide the same equally per stirpes,' with provision for division among the taxpayer's other children and their descendants if no descendant of the beneficiary should then be living. The Article contains a proviso that if the taxpayer's son should die before reaching forty-five, the son may appoint to his spouse for a period no longer than her life not more than one-half of the income from his share of the corpus.
Identical provisions were made for the two minor daughters, except that they were to obtain only one-third of the corpus at age forty-five and could appoint to their spouses only one-third of the income.
In operation the 1938 trust of unimproved realty had produced no net income to the time the case came before the Tax Court. Most of the 1936 income of the first trust, $288 for each minor, was paid to the mother of the beneficiaries. In 1937 partial payments of income, $94 per minor child, were made. The beneficiaries' mother returned other checks to the corporate trustee in 1937, and one of the individual trustees, an adult child of the taxpayer, directed the corporate trustee thereafter to accumulate the income of the minors. No further payments of income were made to any child prior to his becoming of age.
In determining the taxpayer's gift tax for 1937 the Commissioner disallowed three $5000 exclusions from the net gifts for that year on the ground that the gifts to the three minor children were gifts of future interests. For 1938 the Commissioner disallowed two $5000 exclusions on the ground that the gifts made that year to the two children who were still minors were gifts of future interests.
The Tax Court upheld the Commissioner, but the Court of Appeals reversed, holding no future interests arose as a result of the gifts to the minors. Consequently if was unnecessary for the Court of Appeals to consider whether the statute of limitations barred readjustment of the net gift figure for 1936 or simply barred collection of any further gift taxes for that year.
The guiding principles were outlined recently in Fondren v. Commissioner, 324 U.S. 18 , 65 S.Ct. 499. Gifts of 'future interests,' within the meaning of 504(b), 26 U.S.C.A.Int.Rev.Acts, page 585, to any person are not excluded from the computation of net gifts to the extent of the first $5000 in value, as are present interests. Treasury Regulations 79 (1936 ed.), Article 11, defines 'future interests' as interests 'limited to commence in use, possession, or enjoyment at some future date or time. ...' The definition has been approved repeatedly. Cf. Ryerson v. United States, 312 U.S. 405 , 61 S.Ct. 656; United States v. Pelzer, 312 U.S. 399 , 61 S.Ct. 659; Fondren v. Commissioner, 324 U.S. 18 , 65 S.Ct. 499. [325 U.S. 442, 447] Clearly the corpus of the trusts falls within the definition Distribution to William L. Disston, for example, has no relation to his reaching his majority, which he has now attained. He must live to attain the age of forty-five to enable him to receive one-half of the corpus. If he does not reach that age, his estate receives no part of the principal. The recipients are an undetermined group designated in the trust provision, among whom the beneficiary has a limited power of appointment. At the time of the gifts in 1936-1938 it was unknown who in fact would receive this one-half interest. Obviously the enjoyment was postponed.
As to the other half in William L. Disston's share, it likewise was unknown who would enjoy the corpus. One thing only was known, that the named child could not enjoy it. He would continue to receive the income from it for his life, but the principal was not given to him. The possibility that in an emergency the trustees might invade the corpus to the extent of ten per cent for his benefit did not confer a present interest in that part of the principal. The emergency by definition was extraordinary, something that might or might not occur at some indefinite future time. No present, certain and continuous enjoyment was contemplated, nor did it materialize. What has been said of the one minor is true of the others.
The question must be determined whether the trusts provided for a present interest in the trust income, or some definable portion of it. The first direction of each trust is to accumulate the net income until the minor reaches twenty-one. If that were all, it would again be clear that a future interest was created by the postponement of enjoyment. A later paragraph directs the trustees, however, 'to apply ... such income therefore as may be necessary for the education, comfort and support of the respective minors' and to accumulate the remainder. [325 U.S. 442, 448] Respondent urges that this case differs from the Fondren case in that there the trust instrument showed that it was not contemplated that the income would be needed for education and support; and the trustee was directed to accumulate the income unless no other funds were available for such purposes, whereas here there is nothing in the trust instrument to indicate such an intent. In fact, respondent argues, the trust instrument means that the trustees must apply an amount of the income sufficient to provide for education, comfort and support, even though the minor is amply cared for by his parents, his own efforts, or other sources of revenue, citing 1 Scott, Trusts, 128.4 and other authorities. When faced with the fact that the history of the trust's administration shows a practical construction by the trustees that support money need not automatically be paid over, respondent urges that the terms of the trust and the nature of the interest granted cannot be varied by what was subsequently done in administration.
The language of the trust instruments directs that the income be accumulated during minority. The subsequent provision for payments for maintenance and support may be said to indicate a departure from the policy of accumulation only when necessary, in the reasonable discretion of the trustees. If that is the appropriate interpretation of the trust instruments, then little difference from the Fondren case is involved. Even in its practical working, the trustees did not find the necessary prerequisites for a steady application of all or any ascertainable part of the income for education, support and maintenance.
But, even though the trustees were under a duty to apply the income for support, irrespective of outside sources of revenue, there is always the question how much, if any, of the income can actually be applied for the permitted purposes. The existence of a duty so to apply the income gives no clue to the amount that will be [325 U.S. 442, 449] needed for that purpose, or the requirements for maintenance, education and support that were foreseeable at the time the gifts were made. In the absence of some indication from the face of the trust or surrounding circumstances that a steady flow of some ascertaina le portion of income to the minor would be required, there is no basis for a conclusion that there is a gift of anything other than for the future. The taxpayer claiming the exclusion must assume the burden of showing that the value of what he claims is other than a future interest. Cf. New Colonial Ice Co. v. Helvering, 292 U.S. 435 , 54 S.Ct. 788. That burden has not been satisfied in this case.
The question remains whether the adjustment of net gifts for 1936 in computing 1937 and 1938 tax liability is barred by the statute of limitations. As has been noted, 502 requires utilization of 'the aggregate sum of the net gifts ... for each of the preceding calendar years' in the formula for computing gift tax liability. Section 517(a) does not purport to bar adjustment of the net gift figure for that purpose, but simply prevents assessment and collection of a tax for a year barred by the statute. The statute does not support to preclude an examination into events of prior years for the purpose of correctly determining gift tax liability for years which are still open. The Tax Court and Treasury Regulations have construed 517(a) as requiring determination of the true and correct aggregate of net gifts for previous years. 3 The construction is in accord with the statutory language.
Accordingly, the judgment is reversed.
[ Footnote 2 ] See 517(a) of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev.Acts, page 596.
[ Footnote 3 ] The pertinent Treasury Regulations 79, Article 5 provides: '... By the words 'aggregate sum of the net gifts for each of the preceding calendar years' (aside from the amount of the specific exemption deductible) is meant the true and correct aggregate of such net gifts, not necessarily that returned for such years and in respect to which tax was paid. ...' See also Winterbotham v. Commissioner, 46 B.T.A. 972; Wallerstein v. Commissioner, 2 T.C. 542; Roberts v. Commissioner, 2 T.C. 679.

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Edwards, Chief Judge: The instant litigation involves a claim of employment discrimination filed by the appellee, Emmanuel Bailey, against the appellant, Federal National Mortgage Association ("Fannie Mae" or "employer"). In response to Mr. Bailey's complaint, Fannie Mae filed a motion to stay litigation pending arbitration. The District Court denied the motion to stay, and Fannie Mae now appeals.
This case presents a new twist to an old problem. In Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465 (D.C. Cir. 1997), we held that, if certain conditions are met, an employer may compel an employee to use arbitration in lieu of litigation to pursue a statutory claim of employment discrimination if the employee signed an arbitration agreement as a condition of hire. In this case, however, Fannie Mae seeks to compel arbitration pursuant to a "Dispute Resolution Policy" that was unilaterally promulgated by the employer after Mr. Bailey was hired. There is a serious question under Cole whether an employer may impose a condition of employment requiring a current employee to use arbitration before seek- ing to litigate statutory employment discrimination claims for no consideration save the employee's continued employment.
Fortunately, we do not have to decide this troublesome question. The issue was not raised before the trial court, because Fannie Mae disclaimed any intention of terminating Mr. Bailey if he persisted in his refusal to arbitrate the instant dispute. Fannie Mae contends only that its motion to stay should be granted because Mr. Bailey implicitly agreed to arbitrate statutory claims of employment discrimination when he continued to work for the employer after the issu- ance of the Dispute Resolution Policy. Mr. Bailey, in turn, claims that he never gave his assent to be bound by the employer's new arbitration policy. Mr. Bailey claims further that he made it clear to Fannie Mae that he did not subscribe to the employer's new arbitration policy.
The District Court denied Fannie Mae's motion to stay, finding that, because there was no meeting of minds between the parties, there was no arbitration agreement to enforce.
We can find no error in the judgment of the District Court. Accordingly, we affirm.
Pursuant to the Fannie Mae Employee Handbook, I hereby submit a Formal Complaint with respect to the aforementioned violations of all applicable United States and District of Columbia Laws and the Fannie Mae Affirmative Action Plan. Further, I hereby retain all redress options available to me under the Equal Employ- ment Opportunity Commissions (EEOC) [sic] and the United States and/or Local Court System. Request for Formal Investigation, reprinted in Joint Appen- dix ("J.A.") 39.
the Policy becomes a condition of employment for all Fannie Mae employees. This means that, by starting or continuing work for Fannie Mae on or after that date, each employee is indicating that he or she accepts the Policy as a condition of employment and agrees to be bound by it. Dispute Resolution Policy at 1, reprinted in J.A. 106.
Fannie Mae had not previously understood that Mr. Bailey had already decided that he would not be bound by the Dispute Resolution Policy. As you know, Fannie Mae considers Mr. Bailey to be bound by that Policy with respect to the complaint that he made on March 12, 1998. In the event that an employee disregards the Policy, Fannie Mae would enforce it by seeking appropri- ate judicial relief. As Fannie Mae previously told em- ployees, it will not terminate them for failing to follow the Policy. Letter from Fannie Mae to Pamela J. White, reprinted in J.A. 190.
On August 6, 1998, Fannie Mae rejected Mr. Bailey's complaint as unmeritorious. On December 14, 1998, Mr. Bailey filed a lawsuit in the Superior Court of the District of Columbia, alleging discrimination and retaliation in violation of 42 U.S.C. s 1981 (1994), discrimination and retaliation in violation of the D.C. Human Rights Act s 1-2501, and breach of implied contract in violation of 42 U.S.C. s 1981. Fannie Mae removed Mr. Bailey's lawsuit to the United States District Court for the District of Columbia on December 18, 1998. Fannie Mae then moved, pursuant to 9 U.S.C. s 3 (1994), to stay litigation pending arbitration of Mr. Bailey's claims. Because Mr. Bailey had rejected the policy of man- datory arbitration as a condition of his continued employment, he opposed the motion to stay.
On May 21, 1999, the District Court denied Fannie Mae's motion, finding that Mr. Bailey had effectively rejected the possibility of arbitration when he filed his complaint with Fannie Mae on March 12, 1998. Fannie Mae then filed this appeal pursuant to 9 U.S.C. s 16(a)(1) (1994).
erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). And the burden of establishing a clear error is on the appellant. See, e.g., Case v. Morrisette, 475 F.2d 1300, 1307 (D.C. Cir. 1973).
In Pullman-Standard, the Court applied Rule 52(a) to review a lower court's determination that the differential impact of a seniority system reflected an intent to discrimi- nate racially. The Court expressly repudiated the view that facts could be put into distinguishable categories (i.e., either subsidiary or ultimate) in determining whether Rule 52(a)'s clearly erroneous standard of review should apply. See Pull- man Standard, 456 U.S. at 287. However, the Court left open the question of the standard of review for "mixed questions of law and fact," that is, "questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated." Id. at 289 n.19. It is unclear in this case whether the District Court's finding that Mr. Bailey never agreed to arbitration is a simple question of fact or a mixed question of law and fact. At first blush, the issue appears to raise a question of fact regarding the parties' intent. Unfortunately, the question is not so simple.
a case involving a question of intent, "the centrality of intent would often make the deference swallow the de novo review, a result our cases do not seem to contemplate." Id.
The problem here is complicated even more, because this is not a case in which the parties disagree over the meaning of an existing agreement. Rather, the legal battle here is over the existence of a contract, not its meaning. In fact, both sides seem to agree that if the Dispute Resolution Policy constitutes an enforceable agreement, there is no disagree- ment over the meaning of the arbitration policy. The District Court found that Mr. Bailey never assented to the new arbitration policy. We must now decide whether the District Court's decision on this question is subject to deferential review under Rule 52(a).
One of our sister circuits has held that an appellate court engages in de novo review when considering a district court's order denying a stay of a federal suit pending arbitration pursuant to 9 U.S.C. s 3. See, e.g., Riley Mfg. Co. v. Anchor Glass Container Corp., 157 F.3d 775, 779 (10th Cir. 1998). According to the Tenth Circuit, such review requires the appellate court to evaluate "whether the district court cor- rectly found that no valid and enforceable agreement to arbitrate the parties' dispute exists." Id. The Second Cir- cuit, on the other hand, has held that a determination as to whether the parties entered into an enforceable agreement to arbitrate raises a mixed question of law and fact. See Chelsea Square Textiles, Inc. v. Bombay Dyeing and Mfg. Co., 189 F.3d 289, 295 (2d Cir. 1999). Fannie Mae contends that this court is required to review the judgment of the District Court de novo. Mr. Bailey, citing Walker v. J.C. Bradford & Co., 938 F.2d 575, 576-77 (5th Cir. 1991), appears to suggest that the matter involves a mixed question of law and fact. See Br. of Appellee at 14.
agreed to use arbitration in lieu of litigation. Gardner is inconclusive on the standard of review, however.
that the determination that parties have contractually bound themselves to arbitrate disputes--a determination involving interpretation of state law--is a legal conclu- sion subject to our de novo review, ... but that the findings upon which that conclusion is based are factual and thus may not be overturned unless clearly erroneous. Chelsea Square, 189 F.3d at 295. As we noted in Microsoft, "the centrality of intent" may in some cases "make the deference swallow the de novo review." 147 F.3d at 945 n.7. The Second Circuit recognized, however, that cases of this genre often involve an interpretation of state law, which is a legal conclusion subject to de novo review. See Chelsea Square, 189 F.3d at 295.
Fannie Mae had announced in January 1998 that it would issue the new arbitration policy on March 16, so the District Court found that Mr. Bailey "knew this [new] arbitration process was coming" when he filed his complaint with Fannie Mae on March 12, 1998. Trial Tr. at 5, reprinted in J.A. 203. The District Court therefore found that Mr. Bailey "made a timely election against arbitration" when he filed his com- plaint. Id. at 2, reprinted in J.A. 200. And, most important- ly, the District Court found that Mr. Bailey's internal com- plaint "clearly signal[ed] ... that he was intending to invoke his rights to reject arbitration." Id. at 5, reprinted in J.A. 203. In other words, the District Court found that Fannie Mae was "put ... on notice" that Mr. Bailey rejected the new arbitration policy. Id. at 6, reprinted in J.A. 204. The District Court's findings are supported by the record and easily survive review under Rule 52(a).
Fannie Mae, however, claims that Mr. Bailey's determina- tion to retain his right to pursue statutory claims before the EEOC and in the courts was not inconsistent with the employer's policy requiring employees to use arbitration. This assertion is simply wrong. Absent an agreement to arbitrate, an employee is not required to exhaust arbitration as a condition precedent to pursuing his statutory remedies before the EEOC and the courts. Therefore, Mr. Bailey's so- called "redress options" would be dramatically changed--in terms of cost, time delays, and, possibly, inadequate adjudica- tory processes--if he were barred from litigation until after he pursued his claims in arbitration. And, if forced to use arbitration, there is always the possibility that a reviewing court might give some deference to an arbitrator's findings, arguably to the detriment of a litigant like Mr. Bailey. See Cole, 105 F.3d at 1486-87 (discussing the scope of judicial review and deference to arbitration); see also Harry T. Edwards, Where Are We Heading With Mandatory Arbitra- tion of Statutory Claims in Employment?, 16 Ga. St. U. L. Rev. 293, 304-06 (2000) (discussing different judicial ap- proaches to the scope of review and deference to arbitration awards). There are many parties and their advocates who abhor arbitration precisely because it often adversely affects redress options. See discussion and citations in Cole, 105 F.3d at 1477-79. See generally A Focus Issue on Mandatory Arbitration Clauses, The Consumer Advocate (Nat'l Associa- tion of Consumer Advocates, Washington, D.C.) Sept./Oct. 1999; Ethan A. Brecher, Putting the Reins on Employment Arbitration: Courts Safeguard Employee Rights, N.Y. L.J. Aug. 24, 1999, at 1; Harry T. Edwards, Where Are We Heading With Mandatory Arbitration of Statutory Claims in Employment, 16 Ga. St. U. L. Rev. 293; Morton H. Orenstein, Mandatory Arbitration: Alive and Well or Withering on the Vine?, 54 Disp. Resol. J. 57 (Aug. 1999); Debra Parker, Tangled Up in Ticker Tape, 85 A.B.A. J. 44 (1999).
arbitrate statutory claims of employment discrimination. In- deed, it is uncontested that the parties never purported to reach an understanding by oral agreement. It is also unques- tioned that Mr. Bailey never said or wrote anything after Fannie Mae issued its new arbitration policy, either to rescind what he had said in his written complaint or to otherwise indicate that he subscribed to the Dispute Resolution Policy. In fact, after the new policy was issued, Mr. Bailey's counsel wrote to officials at Fannie Mae to make it clear that Mr. Bailey was not bound to pursue his claims in arbitration.
Fannie Mae persists in arguing that there was an "agree- ment" between the parties because Mr. Bailey did not un- equivocally and effectively voice his opposition to the new arbitration policy. There are two problems with this argu- ment: First, the District Court found otherwise, and that finding is not clearly erroneous. Second, the argument has a false premise. The question here is not whether Mr. Bailey effectively rejected what his employer proposed, for he had no obligation even to respond to Fannie Mae's proposal. The issue is whether Mr. Bailey did something to indicate that he intended to enter into an agreement with Fannie Mae so as to bind himself to pursue his statutory claims of employment discrimination in arbitration.
District of Columbia to determine whether the employer's Dispute Resolution Policy reflects a binding agreement be- tween Mr. Bailey and Fannie Mae.
In evaluating contract formation, we also look closely at the parties' intention to be bound. In order to form a binding agreement, both parties must have the distinct intention to be bound; without such intent, there can be no assent and therefore no contract. Id. (quoting Edmund J. Flynn Co. v. LaVay, 431 A.2d 543, 547 (D.C. 1981)). Finally, the party asserting the existence of a contract has the burden of proving its existence. See Ekedahl v. Corestaff, Inc., 183 F.3d 855, 858 (D.C. Cir. 1999) (per curiam). In this case, Fannie Mae has not come close to satisfying the requirements of District of Columbia law in its attempt to prove the existence of an agreement between the employer and Mr. Bailey.
clearly requires a "meeting of the minds" as to all material terms for a contract to be formed. There was no "meeting of the minds" in this case, because Mr. Bailey did nothing whatsoever to embrace the employer's proposal.
his job over his refusal to subscribe to the employer's arbitra- tion policy. Given these considerations, Mr. Bailey's contin- ued employment with Fannie Mae surely was not an indica- tion that he intended to be bound by the arbitration policy.

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MLSC, by Mr. Kosaksy Phillip, Tr. C., for plaintiff.
Attorney General, by Mr. Kevin P. Shea, Esquire, for Defendant.
along the causeway to Dekehtik, selling certain merchandises, including alcoholic beverages to the general public.
violating the law for entering Public Land and doing business there again. Mr. Yamada then outlined the procedure for use of Public Land, and indicated that plaintiff has contravened the procedure even though plaintiff was there temporarily, that plaintiff has gone against the State for not obeying Mr. Elsin Elias. Mr. Yamada then gave plaintiff seven (7) days to move out or he will be prosecuted;" and (6) By letter of January 14, 1993, the Assistant Attorney General instructed the plaintiff to remove his business from the causeway by 4:00 p.m. Monday the 18th of January 1993" (All communications above are as alleged and styled in the plaintiff's complaint).
Consequently, the plaintiff was arrested, (Plaintiff's complaint, para. 16), but was not prosecuted criminally (Defendant's answer).
1. Whether the defendant had standing to instruct the plaintiff to stop from operating his business out of his Nissan Bus along the Dekehtik causeway.
3. Whether the plaintiff obtained his alcoholic beverages licence under false pretence.
4. Whether the plaintiff's complaint amounts to Slander and Libel against the defendant.
Issue number 1 being an issue of law, the Plaintiff moved for the rendering of a partial summary judgment thereon to establish the liability of the defendant to the plaintiff for the former's effort to stop the plaintiff's business operation.
A summary judgment may be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment according to the law applicable under the circumstances. PN. RCP 51 (c). Our Rule 51 is borrowed from U.S. Federal Rules 56, thus it is helpful to review certain U.S. case law construing and applying Rule 56 for assistance. Paulus v. State, 2 P.S.Ct. R 481, 494.
the evidence must create fair doubt; wholly speculative assertion will not suffice." Ross v. Communications Satellite Corp., 759 F. 2d 355, 364 (4th Cir. 1 979). In determining whether the showing of genuineness has been made, the court must assess the evidence as forecast in the documentary material before it in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994 (1962). Where as here, the nonmoving party would on trial carry the burden of proof, he is therefore entitled, as on motion for directed verdict, to have the credibility of his evidence as forecast assumed, his version of all that is in dispute accepted, all internal conflicts in it resolved favorably to him, the most favorable of possible alternative inferences from it drawn in his behalf; and finally, to be given the benefit of all favorable legal theories invoked by the evidence so considered. Charbonnages de France. v. Smith, 597 F. 2d 406 (4th Cir. 1979).
favorable legal theories invoked by the evidence as considered."' Roehiling v. National Gypsum Co. Gold Bond Building Products, 786 F. 2d 1225, 1228, n. 4 (4th Cir. 1986); Ross v. Communications Satellite Corp., 759 F. 2d 355, 364 (4th Cir. 1979).
In his argument for summary judgment, plaintiff argued that because of the provision of Section 11 (8) of S.L. No. 1L-155-87, which grants the Public Land Trust Board the power "to sue and be sued" in the name of the Trust . . ." the defendant alone (without the initiation from the Board of the Public Land Trust) lacks the standing to instruct or stop the plaintiff from conducting his mobile business venture at Dekehtik causeway.
The defendant in response states that 4L-69-76 3 gives the Commissioner of Land, (now the Director of Land) which is a cabinet officer in the Executive branch, certain authority and responsibility to administer public land, therefore the defendant had standing to instruct the plaintiff to desist his business from the Dekehtik causeway. Additionally, the defendant being the branch of Government responsible for the faithful execution of State laws had standing to stop the plaintiff from operating his business from his mobile unit on grounds of public safety and health reasons.
The argument of counsel seem to crisscross each other; plaintiff is arguing that in order for a legal proceeding relating to a violation of the public land trust law to stand, it is the Public Land Trust Board, not the State Government, that should bring such action.
The defendant, on the other hand, argues that it was acting as it did in this case on behalf of the Department of Land, under whose umbrella the Division4 of the Management and Administration of Public Lands is lodged. In addition, the defendant was concerned that certain health regulations had been violated by the plaintiff as a result of the plaintiff's conduct of his mobile business on the Dekehtik causeway.
"(8) To enter Into contracts, sue and be sued in the name of the Trust, and have other powers and duties as may be necessary or appropriate to further the purposes of this act..
The words "sue and be sued" in a statute authorizing and instrumentality to sue and be sued, normally include the natural and appropriate incident of legal proceedings. R.F. Corp. v. J.G. Men ihan Corp. 61 S.Ct. 485, 312 US 81. The words "sue and be sued", in normal connotation, embrace all civil process incident to commencement or continuance of legal proceedings. Sigona v. Slusser, 124 F. Supp 327, 329. The phrase included power to employ counsel. Paslay v. Brooks, 17 S.E.2d 865, 868 (S.C.).
The power to enforce the laws of Pohnpei State is vested in the Governor who is elected by the qualified voters of Pohnpei. (Art. 3 9, sec. 1, Pohnpei Constitution). In his oath of office the Governor swore to "uphold, defend and support the Constitution and to faithfully execute the laws of Pohnpei to the best of his knowledge and ability."
"Establishment" means any place, including without limitation, bars, restaurants, hotels, or retail store . . .which sells gives, offers to sell, or gives away, or otherwise dispenses alcoholic beverages to the general public. (Sec. 3-1 (S)).
"Premises" includes land, buildings, rooms, and equipment under the control of the licensee and used in connection with or in furtherance of the business covered by the license. (3-1 (13)). "Off-sale" means the sale of alcoholic beverages for consumption off the premises. (3-1 (8)).
an Off-Sale business is to be conducted. Subsection (2) prescribes that "The consumption of alcoholic beverages shall not be permitted on the premises of an off-sale establishment or club, whether wholesale or retail."
"The premises, including all furniture, furnishing, and equipment, of all such establishments and clubs shall, at all times be clean, sanitary, sufficiently lighted, safe, and in good repair, and shall otherwise be in compliance with all other applicable [National, State], or Municipal laws and regulations pertaining to health, safety, and other conditions." Finally, Section 3-15 (2) prescribes that "it is unlawful for any person to carry or drink from any open can, glass, bottle or any other container containing alcoholic beverages on any public road, or in any moving vehicle, or in any business establishment not having an on-sale or restaurant-sale retail license. Being cognizant of the ABC law, the defendant ought also to be sensitive to guarding the health and welfare of the general public over the area of the Dekehtik causeway whereupon the plaintiff was operating his mobile off-sale business.
police power is subject to limitations of the Federated States of Micronesia and Pohnpei Constitutions, and especially to the requirement of due process.
Applying the fact of the case to the law, it appears without doubt that the Attorney General of the State, in taking the steps as narrated in the pleadings, was exercising the State's police power to enforce the laws. The process of arrest of an individual for violation of an offense, including arrest for examination is part of the criminal procedures employed by the Executive branch to enforce the laws of this State.
The plaintiff's concern relates particularly to the fact that the Director of the Department of Land, a cabinet officer, took some initiative in notifying "the plaintiff to immediately cease and desist from operating his Mobile Off-sale Unit" on the causeway as ultra vires, that such initiative gave no authority to the Pohnpei State to instruct the plaintiff to move his business from the causeway. If the conduct of the defendant was grounded on that fact alone, the plaintiff's claim of lack of standing may have some merit. However, it is.clear from the defendant's answer, as well as in its argument that it was also concern about the potential violation of public safety and health regulations.
(iii) whether there exists an agreement or understanding between the Board of the Public Lands Trust and the Governor to help enforce the laws regulating the use and any dealing in the so-called public land trust.
Knowledge of the position of the Board to the above questions would certainly assist the plaintiff and any other person similarly situated in prosecuting his case against the defendant.
Inasmuch as the conduct of the defendant as seen in this case falls within its authority to prosecute violators of State law criminally, I hold that the Defendant had standing to act as it did. Whether the Government's action in the instant case accords with due process is a question left for another day after determination of the other three factual issues.
the agreement of the Board of the Public Land Trust, that undertaking may not be legally permissible under the statute as the words "sue and be sued", in normal connotation, embrace all civil process incident to commencement or continuance of legal proceedings in the name of the Trust and not in the name of defendant--the Pohnpei State. It should be remembered however, that certain portions of the public land trust had been designated, either by deed, tradition, or by common understanding to the Executive, Legislative, and Judicial branches for their respective use. The Executive branch, through the Attorney General's Office may, at the request of the affected branch, evict a trespasser or bring action to restrain the person unlawfully in possession of such designated areas of the public land trust. In a situation of this type the Board of the Public Land Trust needs not be the party to bring such suit.
The defendant has standing to sue the plaintiff criminally for any violation of any state law, including any violation of the provisions of the Public Land Trust Act. Plaintiff's Motion for Summary Judgment based primarily on the first issue is accordingly denied.
3. Whether the plaintiff's complaint amounts to Slander and Libel against the defendant; require evidentiary hearing. Although counsel went at length arguing the rest of the issues, I think that they really did not need to go that far as the issues require evidence.
Accordingly and for purpose of setting the Calendar of the Court, counsel are given 20 days from the date of this Order to advise the Court as to when they will be prepared to go to trial on the three remaining issues.
So Ordered, 20 December 1993.


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For almost three decades, Bruce Wagman has been using his legal education and well-honed skills to help animals in all sectors of society, and benefit both society and the animals themselves. He is the only lawyer running an exclusive animal law practice in a major United States firm. He litigates, drafts animal-friendly legislation, oversees rescue operations, and consults clients who care for and protect animals. He has published two major works, the leading casebook for law schools nationwide -- Animal Law: Cases and Materials -- and a global survey of animal laws, A Worldview of Animal Law, the only global survey of animal law. Bruce also founded Project Chimps, a chimpanzee sanctuary that is home to chimpanzees retired from a research laboratory.
Bruce’s forte is the kind of creative lawyering it takes to fit animal interests into the legal world, and his clients regularly applaud his ability to model solutions and take on the toughest problems. His practice covers a broad range of animal-related legal issues -- including cases involving the use of animals in entertainment, biomedical research, animal agriculture/food production, animal cruelty, and wildlife control. He has a long history of wide-ranging “impact litigation,” but he also loves to work with individuals on cases involving dog bites, animal custody disputes, and injuries to, and caused by, animals. Bruce brings an undeniable passion for each of his cases, a dedication to both his human clients and the animals involved, and he has a proven ability to turn that passion into winning arguments both in and out of the courtroom. He takes an “eyes on the prize” approach to all of his matters.
Bruce’s clients include numerous animal protection organizations as well as private individuals. He has worked on behalf of many species, including alpacas, bears, birds, cats, chickens, chinchillas, chimpanzees, cows, deer, dogs, dolphins, ducks, elephants, elk, ferrets, geese, goats, gorillas, horses (domestic and wild), lions, mice, monkeys, pigs, rabbits, sharks, turkeys, whales, and wolves.
Humane Society of the United States v. United States Fish and Wildlife Service – served as lead counsel on the multi-year case, obtained affirmance by the D.C. Circuit Court of Appeals of federal Endangered Species Act protection for gray wolves in the Western Great Lakes states, upholding a federal court ruling stating the wolves’ delisting was illegal.
National Meat Association v. Brown (U.S. Supreme Court) – Defended California law requiring humane treatment of animals too sick or injured to stand or walk; prevailed at the Ninth Circuit.
Humane Society of the United States v. Jewell – obtained order vacating federal government’s decision to remove endangered species protection for gray wolves in the Western Great Lakes.
Statutory defense – Bruce has been involved in the defense of several animal protection statutes including laws protecting wildlife, animals raised for food, sharks, and dogs and cats.
Front Range Equine Rescue v. Vilsack – Obtained temporary restraining order preventing the initiation of commercial horse slaughter for human consumption; part of a multifaceted administrative/legislative program to end horse slaughter in the United States.
Front Range Equine Rescue v. Jewell – Sued federal government for dangerous and untested surgical sterilization “research” on wild mares; in response, federal agency dropped the program while summary judgment briefing was pending.
Chimpanzee Sanctuary Northwest and Project Chimps – Negotiated release of chimpanzees from biomedical research laboratories, and founding member of board of directors providing the chimpanzees permanent sanctuary in Georgia and Washington State.
Animal Legal Defense Fund v. Woodley – Using unique North Carolina law, ALDF successfully sued animal abusers, resulting in rescue of approximately 350 dogs and 21 birds from an animal hoarder who kept the dogs warehoused in squalid conditions. After winning the dogs, Bruce assisted with the appeal, physical rescue, rehabilitation, and long-term foster care for all of the dogs.
Chesley Morton et al. v. Georgia Department of Agriculture – Oversaw team that sued the state of Georgia Department of Agriculture to enforce Georgia's Humane Euthanasia Act and help put an end to the illegal and inhumane gassing of domestic animals in Georgia's animal shelters.
Chimps, Inc. v. Primarily Primates – Represented two sanctuaries and fought for and obtained permanent homes for nine gibbons and two chimpanzees that had been taken from a situation where they were exposed to daily neglect and cruelty.
Animal custody – Bruce has represented clients in several cases involving disputes over pets, which range from mediation and negotiation to extended civil litigation.
Dog bites/vicious and dangerous dogs – Bruce has had over 30 cases defending the owners of dogs threatened with designation as “vicious” and/or “dangerous”, in order to prevent the imposition of restrictions or euthanasia after bite incidents.
Bruce is a frequent speaker at animal welfare legal conferences. He also teaches animal law classes at three Bay Area law schools and is a guest lecturer at law schools across the country.
Bruce engages in significant pro bono work, both in his litigation and consultation practice. He is a board member and adviser to several organizations including Marin Humane Society, Project Chimps, and the United States Equine Rescue League.