The United States Department of Labor is the agency responsible for administering many of the federal laws governing the American workplace. To handle its wide-ranging responsibilities, the DOL is organized into smaller bureaus. The Wage Hour Division (“WHD”) is responsible for the enforcement and interpretation of the FLSA and the FMLA.
Considered by some to be a “sleeping giant” during the Bush administration, the DOL is newly invigorated. The WHD, for example, announced in March 2009 the addition of 250 field investigators, a 33% increase. In addition to new personnel, the WHD has begun issuing a new form of informal enforcement guidance, called Administrator Interpretations.
The WHD’s first three forays into Administrator Interpretations involve the application of the “administrative exemption” to the FLSA’s minimum wage and overtime provisions, the definition of “clothes” for purposes of determining whether changing time is compensable under the FLSA, and the definition of “in loco parentis” under the FMLA.
Employers and their lawyers should take notice. The common theme among these Administrator Interpretations is expansion of the law without new legislation or regulation, resulting in increased liability for employers. The Interpretations foreshadow the enforcement position the WHD will take when investigating complaints against employers and undertaking audits. They may influence courts’ decisions. They also will provide the basis for more formal agency action, such as future regulations or additional Administrator Interpretations. This article summarizes the Interpretations and their effect on existing law.
Like other administrative agencies, the Department of Labor issues formal regulations to implement and administer the laws within its purview. Courts give significant deference to an agency’s properly promulgated regulations. Issuing new or revised regulations is a long slog, though, because of the Administrative Procedures Act’s requirements. Additionally, regulations cannot address all of the questions employers and their lawyers may have about the application of the laws and the regulations themselves.
To provide guidance without issuing new regulations, the WHD issues materials such as “fact sheets,” and even publishes its “Field Operations Handbook,” originally intended to guide investigators’ determination of violations. The WHD in the past issued “opinion letters,” in which the WHD Administrator or staff would respond to employers’ questions about the Fair Labor Standards Act and the Family and Medical Leave Act. Although courts do not defer to these letters as readily as regulations, judges are free to give them the weight they deserve.
the Wage and Hour Administrator will issue Administrator Interpretations when determined [sic] . . . that further clarity regarding the proper interpretation of a statutory or regulatory issue is appropriate. Administrator Interpretations will set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision in issue. Guidance in this form will be useful in clarifying the law as it relates to an entire industry, a category of employees, or to all employees. The Administrator believes that this will be a much more efficient and productive use of resources than attempting to provide definitive opinion letters in response to fact-specific requests submitted by individuals and organizations, where a slight difference in the assumed facts may result in a different outcome. . . .
Thus, the WHD expressly intends Administrator Interpretations to apply generally, not in connection with a single set of facts. Intended to “clarify regarding the proper interpretation of a statutory or regulatory issue,” “clarity” comes in the form of significant changes to the WHD’s policies and enforcement positions, at least in the case of the first three Interpretations discussed below.
B. ADMINISTRATOR INTERPRETATION 2010-1: APPLICATION OF THE ADMINISTRATIVE EXEMPTION UNDER SECTION 13(A)(1) OF THE FAIR LABOR STANDARDS ACT, 29 U.S.C. § 213(A)(1), TO EMPLOYEES WHO PERFORM THE TYPICAL JOB DUTIES OF A MORTGAGE LOAN OFFICER.
The inaugural Administrator Interpretation, No. 2010-1, is an analysis of whether the “administrative exemption” to the FLSA applies to mortgage loan officers. In the Administrator’s view, it does not.
(3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
Mortgage loan officers collect required financial information from customers they contact or who contact them, including information about income, employment history, assets, investments, home ownership, debts, credit history, prior bankruptcies, judgments, and liens. They also run credit reports. Mortgage loan officers enter the collected financial information into a computer program that identifies which loan products may be offered to customers based on the financial information provided. They then assess the loan products identified and discuss with the customers the terms and conditions of particular loans, trying to match the customers’ needs with one of the company’s loan products. Mortgage loan officers also compile customer documents for forwarding to an underwriter or loan processor, and may finalize documents for closings.
The Administrator decided that mortgage loan officers were more akin to sales employees than financial consultants. That is, they are a part of the “production” process of loan sales. Relying on the “production versus administrative dichotomy,” the Administrator noted mortgage loan officers do not service the employer’s internal needs as “staff” (such as accounting and human resources), which is required for the administrative exemption.
The Administrator found significant that many mortgage loan employees are evaluated based on the number of mortgages closed and provided sales training. Many mortgage loan officers are paid on commission, which also is indicative of a sales function. In fact, the Administrator noted, employers sometimes argued in litigation that mortgage loan officers were exempt as both “outside sales” employees under 29 U.S.C. § 213(a), and “inside sales” employees under 29 U.S.C. § 207(i). Because a salesperson cannot be exempt under the administrative test, the Administrator concluded that the job of mortgage loan officer normally would not qualify for the administrative exemption.
work for an employer’s customers does not qualify for the administrative exemption where the customers are individuals seeking advice for their personal needs, such as people seeking mortgages for their homes. Individuals acting in a purely personal capacity do not have “management or general business operations” within the meaning of this exemption.
However, the Administrator noted, if an employee were advising a business about financial management, or even real estate purchases (such as a consultant might do), the work could be exempt.
The production/administrative dichotomy is not new, and neither is the principle that “sales” employees are not exempt under the administrative test. But Administrator Interpretation 2010-1 is directly contrary to the Administrator’s Opinion Letter FLSA 2006-31, issued on September 8, 2006.
collecting and analyzing information regarding the customer’s income, assets, investments or debts; determining which financial products best meet the customer’s needs and financial circumstances; advising the customer regarding the advantages and disadvantages of different financial products; and marketing, servicing or promoting the employer’s financial products. However, an employee whose primary duty is selling financial products does not qualify for the administrative exemption.
The mortgage loan officers’ duties are described similarly in Opinion Letter 2006-31 and Administrator Interpretation 2010-1. However, the Administrator in Interpretation 2010 1 decided § 541.203(b) did not require the conclusion that mortgage loan officers perform exempt duties. The Administrator suggested that Opinion Letter 2006-31 in essence was an “end run” around the general administrative test contained in § 541.200. In so doing, the Administrator narrowed § 541.203 by (1) holding that the term “customer” in § 541.203(b) must apply only to business, not individual, customers, and (2) deciding that work such as analyzing information, deciding which financial products meet the customer’s needs, etc. were simply part of the sales process. The current Administrator resolved the inconsistent analyses by disapproving Opinion Letter 2006-31. It is now marked “withdrawn” on the WHD’s website.
Unfortunately, the Administrator failed to address the “high compensation” exemption contained in 29 CFR 541.601. Therefore, it remains to be seen whether the Interpretation 2010-1 will apply to employees earning more than $100,000 per year.
The Administrator’s emphasis in Interpretation 2010-1 on the difference between individual and business customers may affect the exempt status of jobs in which employees service individual customers’ needs. The WHD’s enforcement position is that advising individuals regarding financial matters likely is not considered exempt work.
Under the Administrator Interpretation, employees paid on commission, who attend sales training, and who are evaluated based on sales productivity may well fall on the “production” side of the “dichotomy,” failing the exemption test.
Finally, the Administrator Interpretation expressly does not apply to outside sales workers. The Administrator also leaves open the possibility that commission-based employees qualify under the special inside sales exemption applicable to retail or service establishments. However, employers should proceed cautiously, because many financial services employers may lack a sufficient “retail concept” to qualify under the exemption.
The second Administrator Interpretation is the latest see-saw move in the WHD’s enforcement position regarding payment for “donning and doffing” work clothes and protective gear.
The Portal-to-Portal Act amended the FLSA to exclude from compensable work time activities that are preliminary and “postliminary” to the employees’ principal work activities, including walking between the workplace entrance and the work site. Separately, § 3(o) of the FLSA provides that time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time, if the employer and union expressly or by “custom and practice” agree to exclude it.
The interplay between these provisions is significant. If employees’ change into safety equipment or protective gear, the argument arises that the time is not spent “changing clothes,” is not excluded under § 3(o) and, therefore, is compensable work time. When changing is not excluded under § 3(o) and is considered part of the employee’s “principal” work activity, then the Portal-to-Portal Act does not apply. Consequently, even the time spent walking to and from the plant entrance becomes compensable under the “continuous workday rule.” A less common question is whether changing clothes alone, which is not compensable under § 3(o), nevertheless can be a “principal activity,” rendering subsequent time compensable. The WHD took up these issues in Administrator Interpretation 2010-2.
The Administrator made two significant changes to its enforcement policy. First, the term “clothes” under § 3(o) of the FLSA “does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job . . . .” Second, the Administrator opined that even changing “clothes,” which is not compensable under § 3(o), can constitute a “principal activity” under the Portal-to-Portal Act. As a result of this second opinion, the time walking to and from the work site would be compensable.
The Administrator’s “new” interpretation of “clothes” under § 3(o) of the FLSA is a return to the WHD’s enforcement position, as explained in a WHD Opinion Letter dated December 3, 1997. There, an employer in the meat-packing industry requested an opinion regarding whether “sharpening knives, waiting in line at wash stations, cleaning equipment, and putting on and taking off required safety gear” were considered changing clothes under § 3(o).
The plain meaning of “clothes” in section 3(o) does not encompass protective safety equipment; common usage dictates that “clothes” refer to apparel, not to protective safety equipment which is generally worn over such apparel and may be cumbersome in nature.
However, the WHD in 2002 reversed its 1997 interpretation. In Wage and Hour Opinion Letter FLSA 2002-2, the Administrator opined that “clothes” under § 3(o) included the protective equipment typically worn by meat packing employees. In 2007, the Administrator reaffirmed this position.
In Administrator Interpretation 2010-2, the WHD withdrew the 2002 and 2007 letters and restored its 1997 interpretation of “clothes.” The Administrator cited several opinions in which courts held that “clothes” did not include protective equipment such as face shields, helmets, smocks, plastic aprons, arm guards, belly guards, plastic arm sleeves, a variety of gloves, a hook, knife holder, a piece of steel to straighten the edge of a knife blade, and knives. In a footnote, however, the Administrator conceded that two courts of appeals had held certain safety equipment could constitute clothes, but then disagreed with those opinions.
Barely six weeks after the WHD issued Administrator Interpretation 2010-2, the Sixth Circuit in Franklin v. Kellogg Corp., rejected the Administrator Interpretation’s narrow definition of “clothes.” There, hourly employees wore company-provided uniforms, which consist of pants, snap-front shirts, and slip-resistant shoes. In addition, hourly production and maintenance employees wore “standard equipment,” including hair nets, beard nets, safety glasses, ear plugs, and bump caps.
The court of appeals first held, contrary to the Administrator, that the § 3(o) exclusion is not an “exemption,” but is merely part of the definition of hours worked. Therefore, the burden of proving the exclusion does not apply rests with the plaintiff.
Given the context of the workday, § 203(o) clearly applies to the uniform at issue in the case at hand. The remaining items–hair and beard nets, goggles, ear plugs, non-slip shoes, and a bump cap–are also properly construed as clothes within the meaning of § 203(o). Each of these items provides covering for the body. Although they also provide protection to the body, we see no reason to distinguish between protective and non-protective clothes.
Thus, the Administrator’s restricted view of “clothes” will be the subject of continued challenges unless or until the Supreme Court steps in to settle the matter, Congress amends the FLSA, or the DOL adopts formal regulations.
The Administrator cited as the “leading case,” Figas v. Horsehead Corp., 2008 WL 4170043 (W.D. Pa. 2008), a district court opinion not published in the official reports. In Figas, the plaintiffs claimed that changing into protective coveralls at a chemical plant was not changing “clothes” under § 3(o), and that the time spent changing, as well as all subsequent time, was compensable.
The district court held that the time spent changing was indeed excluded under § 3(o) because the protective clothing constituted “clothes.” However, the court denied the employer’s motion for summary judgment on the plaintiffs’ claim that the time walking to the work area following clothes-changing was compensable.
The court held non-compensable changing time could be part of the workers’ “principal activities,” triggering the beginning of compensable work time. The Administrator noted two district courts had held that clothes-changing excluded from work time under § 3(o) could not be “principal activities,” but stated the “weight of authority is to the contrary” and cited a handful of other district court decisions.
The court of appeals in Franklin v. Kellogg, discussed above, is possibly the first appellate court to have considered the issue. The court agreed with the Administrator on this point. The court held that § 3(o) simply means that changing clothes itself is not a compensable activity. But § 3(o) does not preclude the conclusion that donning and doffing clothes are part of the worker’s principal activity.
There are regulations and numerous court cases analyzing the breadth of the term “principal activity” and its application to “donning and doffing.” Principal activities may include not only the work itself, but also activities, such as donning safety equipment, that are “integral” and “indispensable” to the principal activity (usually the work performed).
First, the activity is required by Kellogg. Second, wearing the uniform and equipment primarily benefits Kellogg. Certainly, the employees receive protection from physical harm by wearing the equipment. However, the benefit is primarily for Kellogg, because the uniform and equipment ensures sanitary working conditions and untainted products. Because Franklin would be able to physically complete her job without donning the uniform and equipment, unlike the plaintiffs in Steiner, it is difficult to say that donning the items are necessary for her to perform her duties. Nonetheless, considering these three factors, we conclude that donning and doffing the uniform and standard equipment at issue here is a principal activity.
Employers in unionized settings must consider whether § 3(o) and their collective bargaining agreements or practices will insulate them from liability for unpaid changing time. The courts are not in agreement regarding whether “clothes” includes only apparel, as the Administrator opined, or also protective clothing and equipment.
All employers, however, must consider whether clothes-changing is a an “integral” or “indispensable” part of employees’ principal activities. As discussed above, the Administrator’s opinion that even donning wearing apparel can be part of employees’ principal activities may create liability for employers who do not pay for time spent walking to the work area. Under the test endorsed in Franklin, employees may argue that merely donning and doffing required uniforms are sufficiently related to principal work that all time between changing in and out of the uniform must be paid. That argument, if accepted by courts, potentially could result in major unforeseen wage and hour liability and a new round of class actions.
Administrator Interpretation 2010-3 re-defines who is entitled to take leave under the Family and Medical Leave Act. The Secretary of Labor, Hilda Solis, has written that Administrator Interpretation 2010-3 is an expansion of the law through “interpretation.” She is correct. If courts adopt the Administrator’s new construction of the FMLA, more FMLA claims and, therefore, more litigation over denial of leave, discrimination, and retaliation will result. The Interpretation also makes it nearly impossible to verify the bona fides of who is entitled to leave.
The Family and Medical Leave Act of 1993, as amended, allows eligible employees to take up to 12 workweeks of job-protected, unpaid leave in any 12-month period for, among other reasons, the birth of a “son or daughter,” to bond with a newborn or newly placed adopted child, or to care for a “son or daughter” with a serious health condition.
The FMLA and the DOL’s regulations define a “son or daughter” as: a biological, adopted or foster child, a step child, a legal ward, or a child of a person standing in loco parentis, if that child is either under 18 years old, or is 18 years or older and incapable of self care because of a mental or physical disability.
Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.
where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition. The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement.
the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave. Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child.
Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.
Given that Administrator Interpretation 2010-3 contradicts the DOL’s own regulations, and appears to expand FMLA coverage without congressional authority, the courts may accord this Administrator Interpretation little deference. However, employees merely “attempting” to obtain FMLA leave are protected from retaliation. The Interpretation at minimum will result in more employees covered by the anti-retaliation provisions.
Although the term “in loco parentis” previously existed in the law, the Administrator Interpretation expands the term’s usual meaning. Employers choosing to follow the Interpretation will face claims for leave by relatives such as aunts and grandparents, boyfriends, roommates, and other persons who care for an employee’s children.
One might argue this Interpretation also facilitates potential abuse of FMLA leave. It is likely employers will see more claims for leave coinciding with holidays, and in response to negative performance reviews. Employers will be faced with the Hobson’s choice of denying potentially bona fide leave and risking litigation, or running short-handed.
Employers have little recourse except to insist on the minimal documentation permitted under the regulations. Documentation in the form of the employee’s own “simple statement” does not impose much of a procedural hurdle. Nevertheless, to determine “in loco parentis” status, courts consider factors such as the child’s age, the amount of financial support provided, if any, and the “parental duties” assumed by the person seeking in loco parentis status. The “simple statement” may be evaluated under these factors to see if the employee indeed qualifies.
Finally, employers may wish to ensure that employees seeking leave are otherwise eligible (e.g., have one year of service, etc.), and that the employee seeks leave for a covered reason (e.g., to bond with or care for a child’s serious health condition). There are additional verification and documentation requirements associated with these issues.
Reprinted from HR Advisor: Legal and Practical Guidance. Copyright Œ© 2010 Thomson Reuters/West. For more information about this publication please visit www.west.thomson.com.


§792.4 Demand for payment of debts.
§792.5 Collection by payment in full.
§792.6 Collection by installment payments.
§792.7 Collection by administrative offset.
§792.8 Priorities of offsets versus assignments.
§792.10 Late payment interest, penalty and administrative charges.
§792.11 Waiver of late payment interest, penalty charge and administrative charges.
§792.13 Additional administrative collection action.
§792.14 Contact with debtor's employing agency.
§792.15 Prior provision of rights with respect to debt.
§792.17 Referral of delinquent debts to credit reporting agencies.
§792.18 Referral of debts to Department of Justice.
§792.19 Referral of delinquent debts to IRS for tax refund offset.
§792.20 Reporting discharged debts to IRS.
§792.21 Referral of debts to private collection agencies.
Authority: 31 U.S.C. 3701, 3711, 3716-3719, 3728; 4 CFR parts 101-105; 7 CFR 3.21(b).
Source: 59 FR 15829, Apr. 5, 1994, unless otherwise noted.
Except as may otherwise be provided by statute, this part sets forth the manner in which the Farm Service Agency (FSA) will settle and collect debts by FSA. The provisions of part 1403 of this title are applicable to actions of FSA regarding the settlement and collection of debts on the behalf of the Commodity Credit Corporation (CCC).
The regulations in this part will be administered under the general supervision and direction of the Administrator, FSA.
Administrative charges means the additional costs of processing delinquent debts against the debtor, to the extent such costs are attributable to the delinquency. Such costs include, but are not limited to, costs incurred in obtaining a credit report, costs of employing commercial firms to locate debtor, costs of employing contractors for collection services, costs of selling collateral or property to satisfy the debt.
Administrative offset means deducting money payable or held by the United States Government, or any agency thereof, to satisfy in whole or in part a debt owed the Government, or any agency thereof.
FSA means the Farm Service Agency of the United States Department of Agriculture (USDA).
CCC means the Commodity Credit Corporation.
Certified financial statement means an account of the assets, liabilities, income and expenses of a debtor, executed in accordance with generally accepted accounting principles and attested to as accurate by the debtor and preparer, under penalty of perjury.
Claim means an amount of money or property which has been determined by FSA, after a notice of delinquency and a demand for the payment of the debt has been made by FSA, to be owed to FSA by any person other than a Federal agency.
(2) Any entity which has entered into an agreement with USDA concerning the referral of credit information.
Debt means any amount owed to FSA which has not been satisfied through payment or otherwise.
Debt record refers to the account, register, balance sheet, file, ledger, data file, or similar record of debts owed to FSA, CCC, or any other Government Agency with respect to which collection action is being pursued, and which is maintained in an FSA office.
(2) Any debt that has not been paid by the date of an initial notification of indebtedness mailed or hand-delivered pursuant to §792.4.
Discharged debt means any debt, or part thereof, which FSA has determined is uncollectible and has closed out, and if the amount in controversy exceeds $100,000.00, excluding interest and administrative charges, or such higher amount as may be prescribed, in which the Department of Justice has concurred in such determination.
IRS means the Internal Revenue Service.
Late payment interest rate means the amount of interest charged on delinquent debts and claims. The late payment interest rate shall be determined as of the date a debt becomes delinquent and shall be equal to the higher of the Prompt Payment Act interest rate or the standard late payment rate prescribed by 31 U.S.C. 3717, which is based on the Treasury Department's current value of funds rate.
Person means an individual, partnership, association, corporation, estate or trust, or other business enterprise or other legal entity and, whenever applicable, the Federal Government or a State government, or any agency thereof.
Salary offset means the deduction of money from the current pay account of a present or former Government employee payable by the United States Government to, or held by the Government for, such person to satisfy a debt that person owes the Government.
Settlement means any final disposition of a debt or claim.
System of records means a group of any records under the control of FSA or CCC from which information is retrieved by the name of the individual, organization or other entity or by some identifying number, symbol, or other identification assigned to the individual, organization or other entity.
Withholding means the taking of action to temporarily prevent the payment of some or all amounts to a debtor under one or more contracts or programs.
(3) The applicable late payment interest rate.
(ii) If a late payment interest rate is not specified in the contract, agreement or program regulation, the debtor shall be informed of the applicable late payment interest rate set out in §792.10.
(6) FSA' intent, if applicable, under §792.19, to refer any delinquent debt to the IRS, no sooner than 60 days from the date of the letter, to be considered for offset against any tax refund due or to become due the debtor.
(iii) Appropriateness of referral to IRS for tax refund offset, it must be made within 60 days from the date of the letter, if applicable.
(b) When FSA deems it necessary to protect the Government's interest, written demand may be preceded by other appropriate actions.
Except as FSA may provide, FSA shall collect debts owed to the Government, including applicable interest, penalties, and administrative costs, in full, whenever feasible whether the debt is being collected by administrative offset or by another method, including voluntary payment. If a debt is paid in one lump sum after the due date, FSA will impose late payment interest, as provided in §792.10, unless such interest is waived as provided in §792.11.
(2) Normally be of sufficient size and frequency to liquidate the debt in not more than three years.
(b) Except as otherwise determined by FSA, no installment arrangement will be considered unless the debtor submits a certified financial statement which reflects the debtor's assets, liabilities, income, and expenses. The financial statement shall not be required to be submitted sooner than 15 workdays following its request by FSA.
(c) All installment payment agreements shall be in writing and require the payment of interest at the late payment interest rate in effect on the date such agreement is executed, unless such interest is waived or reduced by FSA. The installment agreement shall specify all the terms of the arrangement and include provision for accelerating the debt in the event the debtor defaults.
(d) FSA may deem a repayment plan to be abrogated if the debtor fails to comply with its terms.
(e) If the debtor's financial statement or other information discloses the ownership of assets which are not encumbered, the debtor may be required to secure the payment of an installment note by executing a security agreement and financing agreement which provides FSA a security interest in the assets until the debt is paid in full.
(f) If the debtor owes more than one debt to FSA, FSA may allow the debtor to designate the manner in which a voluntary installment payment is to be applied. If the debtor does not designate the application of a voluntary installment or partial payment, the payment will be applied to such debts as determined by FSA.
(4) Any case in which a statute explicitly provides for or prohibits using administrative offset to collect the debt for the type of debt involved.
(5) The debt has not been delinquent for more than ten years or legal action to enforce the debt has not been barred by an applicable period of limitation, whichever is later.
(2) When a person is indebted under a judgment in favor of FSA or the United States.
(d) A payment due any person may be offset when there is a breach of a contract or a violation of FSA program requirements, and offset is considered necessary by FSA to protect the financial interests of the Government.
(2) The time before the payment is to be made does not reasonably permit the completion of those procedures.
(vi) State the name, address, and telephone number of a contact person within the agency and the address to which payment should be sent.
(2) Unless prohibited by law, the head of an agency, or a designee, may defer or subordinate in whole or in part the right of the agency to recover through offset all or part of any indebtedness to such agency, or may withdraw a request for offset. Notice of such action must be sent to the appropriate FSA office.
(g)(1) After FSA has complied with the provisions of this part, FSA may request other agencies of the Government to offset amounts payable by them to persons indebted to FSA.
(2) In the case of a request to IRS for a tax refund offset, the provisions at §792.19 shall apply.
(ii) Debts to other agencies of USDA as determined by FSA.
(iii) Debts to other government agencies as determined by FSA.
(2) In the case of multiple debts involving the same debtor, FSA may, at its discretion, deviate from the usual order of priority in applying recovered amounts to debts owed other agencies when considered to be in the Government's best interest. Such decision shall be made by FSA based on the facts and circumstances of the particular case.
(i) Amounts recovered by offset for FSA and CCC debts but later found not to be owed to the Government shall be promptly refunded.
(j) The debtor shall be notified whenever any offset action has been taken.
(k) Offsets made pursuant to this section shall not deprive a debtor of any right he or she might otherwise have to contest the debt involved in the offset action either by administrative appeal or by legal action.
(1) Against a debtor's pro rata share of payments due any entity which the debtor participates in, either directly or indirectly, as determined by FSA.
(2) When FSA determines that the debtor has established an entity, or reorganized, transferred ownership of, or changed in some other manner, their operation, for the purpose of avoiding the payment of the claim or debt.
(m) The amount to be offset shall not exceed the actual or estimated amount of the debt, including interest, administrative charges, and penalties, unless the Department of Justice requests that a larger specified amount be offset.
(1) A debt has been discharged as provided in §792.16.
(2) FSA determines such action will unduly interfere with the administration of an FSA or CCC program.
(3) The debt has been delinquent for more than ten years or legal action to enforce the debt due FSA is barred by an applicable period of limitation, whichever is later.
(a) No amounts payable to a debtor by FSA shall be paid to an assignee until there have been collected any amounts owed by the debtor except as provided in this section.
(b) A payment which is assigned in accordance with part 1404 of this title by execution of Form CCC-36 shall be subject to offset for any debt owed to FSA or CCC or any judgment in favor of the United States without regard to the date notice of assignment was accepted by FSA or CCC.
(2) At anytime, regardless of the date of filing of such form with FSA or CCC, if the debt which is the basis for the offset arises from a judgment in favor of the United States, or under the same contract under which the payment is earned by the assignor.
(d) With respect to all other Federal agencies, offset shall be made of any amounts due any other Federal agency which have not been reduced to judgment, and which are entered on the debt record of the appropriate FSA office prior to the date the notice of assignment was accepted by FSA or CCC.
(e) Any amount due and payable to the assignor which remains after deduction of amounts paid to the assignee shall be available for offset.
(a) Withholding of a payment prior to the completion of an applicable offset procedure may be made from amounts payable to a debtor by FSA to ensure that the interests of FSA and the United States will be protected as provided in this section.
(7) Such action has been requested by the Department of Justice.
(c) Except for debts due FSA or CCC, withholding action by FSA on amounts payable to debtors of other Government agencies may not be made unless requested by the Department of Justice.
(1) To debts owed by Federal agencies and State and local governments. Interest on debts owed by such entities shall be charged to the extent authorized under the common law or applicable statutory authority.
(3) If the late payment interest is waived by FSA in accordance with §792.11.
(4) To administrative charges as set forth in paragraph (f) of this section.
(b) FSA will assess late payment interest on the full amount of delinquent debts. For purposes of this section, the term “full amount of the delinquent debt” means the sum of the principal, accrued program interest, and any other charges which are otherwise due and owing to FSA on the delinquent debt at the time the late payment interest is assessed, except as provided in paragraphs (a)(2) and (d)(3) of this section.
(c) The late payment interest shall be expressed as an annual rate of interest which FSA charges on delinquent debts. The late payment interest rate shall be equal to the higher of the Treasury Department's current value of funds rate or the rate of interest assessed under the Prompt Payment Act, determined as of the date specified in paragraphs (d)(1) and (d)(2) of this section. The rate of interest assessed under the Prompt Payment Act was chosen as an alternative rate to ensure that the Government would recoup interest at a rate which was at least as high as that which it pays for late payments.
(d)(1) When a debt results from a statute, regulation, contract, or other agreement with specific provisions for late payment interest and payment due date, late payment interest shall accrue on the amount of the debt from the first day the debt became delinquent, unless otherwise provided by statute.
(2) With respect to debts not resulting from a statute, regulation, contract, or agreement containing specific provisions for late payment interest and payment due date, late payment interest shall begin to accrue from the date on which notice of the debt, including notice of late payment interest, is first mailed or hand-delivered to the debtor.
(3) The rate of late payment interest initially assessed will be fixed for the duration of the indebtedness, except when a debtor has defaulted on a repayment agreement and seeks to enter into a new agreement. FSA may then set a new rate of interest which reflects the late payment interest rate in effect at the time the new agreement is executed. All charges which accrued, but which were not collected under the defaulted agreement, shall be added to the principal to be paid under a new repayment agreement.
(4) The late payment interest on delinquent debts will accrue on a daily basis.
(e) Except as specified in paragraph (a)(2) of this section, a penalty charge of three (3) percent per annum will be assessed on any portion of a debt which remains unpaid ninety (90) days after the date described in paragraph (d)(1) or (d)(2) of this section, if no repayment schedule satisfactory to FSA has been agreed upon. Such penalty charge will be assessed retroactively from the date late payment interest began to accrue and applied on a daily basis. Such rate shall continue to accrue until the delinquent debt has been paid.
(f) FSA shall assess as administrative charges the additional costs of processing delinquent debts against the debtor, to the extent such costs are attributable to the delinquency. Such costs include, but are not limited to, costs incurred in obtaining a credit report, costs of employing commercial firms to locate debtor, costs of employing contractors for collection services, costs of selling collateral or property to satisfy the debt.
(g) When a debt is paid in partial or installment payments, payments will be applied first to administrative charges, second to the penalty charge assessed in accordance with paragraph (e) of this section and late payment interest, and third to outstanding principal.
(a) FSA shall waive the collection of late payment interest and administrative charges on a debt or any portion of a debt which is paid within 30 days after the date on which late payment interest began to accrue.
(3) The appellant's failure to timely present information to the reviewing authority.
(c) Assessment and collection of late payment interest, the penalty charge and administrative charges under this part may be waived by FSA in full, or in part, if it is determined by the Controller, FSA, or his or her designee, that such action is in the best interest of FSA.
If the opportunity to appeal the determination has not previously been provided under part 24 of this title or part 780 of this chapter or any other appeal procedure, a debtor may obtain an administrative review under part 780 of this chapter, or other applicable appeal procedures, of FSA' determination concerning the existence or amount of a debt, if a request is filed with the authority who made the determination within 15 days of the date of FSA' initial demand letter, unless a longer period is specified in the initial demand letter.
Nothing contained in this part shall preclude the use of any other administrative or contractual remedy which may be available to FSA to collect debts owed to the Government.
When a debtor is employed by the Federal Government or is a member of the military establishment or the Coast Guard, and collection by offset cannot be accomplished in accordance with 5 U.S.C. 5514, FSA may contact the employing agency to arrange for payment of the debt by allotment or otherwise, in accordance with section 206 of Executive Order No. 11222, May 8, 1965, 30 FR 6469, 3 CFR, 1964-1965 Comp., p 306.
(d) Referring the debt to IRS for tax refund offset.
(4) When collection of a debt by administrative offset is barred in accordance with §792.7(b)(5).
(b) Debts discharged in accordance with this section may be reported to the Internal Revenue Service pursuant to §792.20.
(a) This section specifies the procedures that will be followed by FSA and the rights that will be afforded to debtors when FSA reports delinquent debts to credit reporting agencies.
(b) Before disclosing information to a credit reporting agency in accordance with this part, FSA shall review the claim and determine that it is valid and delinquent.
(1) FSA' intent to disclose to a credit reporting agency that the debtor is responsible for the debt, and that such disclosure will be made not less than 60 days after notification to such debtor.
(2) The information intended to be disclosed to the credit reporting agency under paragraph (g)(1) of this section.
(3) The debtor's right to enter a repayment agreement on the debt, including, at the discretion of FSA, installment payments, and that if such an agreement is reached, the debt will not be referred to a credit reporting agency.
(4) The debtor's right to review of this action in accordance with paragraph (i) of this section.
(d) The debtor shall be notified, in writing at the debtor's last known address, when FSA has reported any delinquent debt to a credit reporting agency.
(e)(1) FSA shall notify each credit reporting agency to which an original disclosure of delinquent debt information was made of any substantial change in the condition or amount of the claim.
(2) FSA shall promptly verify or correct, as appropriate, information about the debt on request of a credit reporting agency. The records of the debtor shall reflect any correction resulting from such request.
(f) Information reported to a credit reporting agency on delinquent debts shall be derived from the system of records maintained by FSA.
(3) The program under which the claim arose.
(h) Reasonable action shall be taken to locate a debtor for whom FSA does not have a current address before reporting delinquent debt information to a credit reporting agency.
(i)(1) Before disclosing delinquent debt information to a credit reporting agency, FSA shall, upon request of the debtor, provide for a review of the debt in accordance with §792.12. This review shall only consider defenses or arguments which were not available or could not have been available at any previous appeal proceeding permitted under §792.12.
(2) Upon receipt of a request for review within 30 days from the date of notice to the debtor of intent to refer delinquent debt information to a credit reporting agency, FSA shall suspend its schedule for disclosure to a credit reporting agency until a final decision regarding the appropriateness of disclosure to a credit reporting agency is made.
(3) Upon completion of the review, the reviewing official shall transmit to the debtor a written notification of the decision. If appropriate, the debtor shall be notified of the scheduled date on or after which the debt will be referred to the credit reporting agency. The debtor will also be notified of any changes from the initial notification in the information to be disclosed.
(j)(1) In accordance with guidelines established by the Administrator, FSA, the responsible claims official shall report to credit reporting agencies delinquent debt information specified in paragraph (g) of this section.
(2) The agreements entered into by USDA and credit reporting agencies shall provide the necessary assurances to FSA that the credit reporting agencies to which information will be provided are in compliance with the provisions of all the laws and regulations of the United States relating to providing credit information.
(ii) FSA has suspended its schedule for disclosure of delinquent debt information pursuant to paragraph (i)(2) of this section.
(k) Disclosures made under this section shall be in accordance with the requirements of the Privacy Act, as amended (5 U.S.C. 552a).
(l) The provisions of paragraphs (a) through (k) of this section apply to commercial debts owed by farm producers and all personal debts. All commercial debts owed by debtors other than farm producers may be reported to credit reporting agencies without following the provisions of paragraphs (a) through (k) of this section.
(a) Debts that exceed $100,000.00 exclusive of interest, penalties, and administrative charges, or such higher amount as may be prescribed, shall be referred to the Department of Justice before they can be discharged.
(2) The debtor not only has the clear ability to pay the claim, but the Government can effectively enforce payment, having due regard for the exemptions available to the debtor under State and Federal law and the judicial remedies available to the Government.
FSA may refer legally enforceable delinquent debts to IRS to be offset against tax refunds due to debtors under 26 U.S.C. 6402, in accordance with the provisions of 31 U.S.C. 3720A and Treasury Department regulations.
(a) In accordance with IRS regulations, FSA may report to IRS as discharged debts on IRS Form 1099-G the amounts specified in paragraph (b) of this section.
(1) The amount of a debt discharged under a compromise agreement between FSA and the debtor, except for compromises made due to doubt about the Government's ability to prove its case in court for the full amount of the debt.
(2) The amount of a debt discharged by the running of the statutory period of limitation for collecting the debt by administrative offset specified in 31 U.S.C. 3716.
If FSA' collection efforts have been unsuccessful after 90 days from the date of delinquency, the head of the agency or his designee may enter into a contract with any person or organization, under such terms and conditions as the head of the agency or his designee considers appropriate for collection services to recover debts owed to FSA.
The Administrator, FSA, or his designee may compromise any claim of the Government of not more than $100,000.00 exclusive of interest, penalties, and administrative charges, or such higher amount as may be prescribed, that has not been referred to another executive or legislative agency for further collection action.


WILLIAM THOMAS, Plaintiff, v. S. DAVIS, Asst. Superintendent D.O.C.; SHANTAY ADAMS, Unit Director D.H.S.; JACYLEN OTTINO, Program Coordinator D.H.S.; J. JONES, Lt. Second Shift Supervisor D.O.C.; Dr. MERRIL MAIN, Clinical Director D.H.S. Defendants.
WILLIAM J. MARTINI , U.S.D.J.
Pro se Plaintiff William Thomas brings this action pursuant to 42 U.S.C. § 1983. This matter comes before the Court on Defendants' unopposed motions to dismiss for failure to state a claim. For the reasons that follow, Defendants' motions will be GRANTED.
William Thomas is a sexually violent offender civilly committed at the East Jersey State Prison's Special Treatment Unit ("STU") in Avenel, New Jersey. Defendants Davis and Jones are employees of the New Jersey Department of Corrections ("DOC"). The Court will refer to those individuals collectively as "the DOC Defendants." Defendants Adams, Ottino, and Main are employees of the New Jersey Department of Human Services ("DHS"). The Court will refer to those individuals collectively as "the DHS Defendants." Unless otherwise noted, the following facts are alleged in Thomas' complaint.
On or about September 24, 2014, STU personnel received a tip that Thomas possessed a dangerous weapon in the recreation yard. Based on that tip, DOC staff forcibly restrained Thomas and subsequently placed him "on watch" at the direction of DHS staff. After being placed on watch for eight days, Thomas was transferred to the Acute Psychiatric Services ("APS") Unit in Piscataway, New Jersey. He remained there for four days until he was moved to the Ann Klein Forensic Center in West Trenton, where he remained for a month and a half. On November 10, 2014, DOC staff transported Thomas back to the STU. There, DOC staff harassed Thomas, and DHS staff deprived him of his personal belongings.
On November 14, 2014, the DHS Defendants authorized the DOC Defendants to place Thomas in the modified activity program ("MAP"). Thomas alleges that while holding him in MAP, the DHS and DOC Defendants hindered his treatment for violent sexual activity. He specifically claims that his placement in MAP and subsequent reduction in treatment "violated the patient bill of rights," which includes "a right to treatment for [his] illness, psychological [sic], physically, etc." Thomas further alleges that he has been unable to attend anger management and substance abuse meetings, "which in turn will hinder [his] release back into society." On November 24, 2014, Plaintiff filed this complaint, which alleges violations of 42 U.S.C. § 1983. Defendants have now filed motions to dismiss, which remain unopposed.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998). Moreover, where the plaintiff is proceeding pro se, the complaint is "to be liberally construed," and, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
Although a complaint need not contain detailed factual allegations, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, such that it is "plausible on its face." See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a 'probability requirement' . . . it asks for more than a sheer possibility." Id.
In an action pursuant to 42 U.S.C. § 1983, the defendant's personal involvement in the behavior complained of is an essential element. See Sutton v. Rasheed, 323 F.3d 236, 249-50 (3d Cir. 2003); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1987); Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012). "Personal involvement can be shown through allegations of personal direction or of actual knowledge or acquiescence." Richards v. Jones, 31 F. Supp. 3d 630, 634 (D. Del. 2014) (citing Argueta v. United States Immigration and Customs Enforcement, 643 F.3d 60, 72 (3d Cir. 2011)). See also Telfair v. Tandy, 797 F. Supp. 2d 508, 523 (D.N.J. 2011) (dismissing arrestee plaintiff's civil rights complaint where plaintiff alleged that he was denied medical care but failed to provide facts that indicated how defendant was personally involved).
Thomas' complaint must be dismissed because it does not explain Defendants' personal involvement in the denial of his treatment. The crux of Thomas' complaint is that he was deprived of access to group therapy and mental health treatment after being placed in MAP. The complaint, however, lacks any explanation as to how Defendants were personally involved in the alleged wrongdoing. For example, Thomas fails to allege how Defendants individually "violated the patient bill of rights," or how they were personally involved in depriving him of an "opportunity to deal with [his] primary reason for being in STU."
To the extent the complaint can be liberally read to allege Defendants' personal involvement, it fails to plead sufficient facts to survive a motion to dismiss. See, e.g., Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) ("a civil rights complaint is adequate where it states the conduct, time, place and persons responsible"). For example, Thomas' assertion that Defendant Ottino "cover[ed] up the false reports that D.O.C. wrote on [him] to get [him] placed on M.A.P. . . . causing [his] treatment to stop" fails to state what the reports were about, when they were filed, how they caused his MAP placement, and what role they had in the cessation of his treatment. Similarly, he alleges that his placement in MAP was "clearly punitive and spiteful," but fails to explain why. Consequently, the Court will grant Defendants' motions to dismiss. See Iqbal, 556 U.S. at 678 (2009) (citing Twombly, 550 U.S. at 556); Sutton, 323 F.3d at 249-50.
The complaint is also subject to dismissal because it fails to sufficiently plead an unconstitutional denial of medical treatment. For an incarcerated plaintiff to sufficiently plead an unconstitutional denial of medical treatment, the plaintiff must plead (1) that the defendants were deliberately indifferent to their medical needs, and (2) that those needs were serious. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Courts have found deliberate indifference where a defendant, (1) knows of plaintiff's need of treatment and refuses to provide it; (2) delays necessary treatment for a non-medical reason; (3) prevents plaintiff from receiving needed treatment; or (4) persists in treatment in spite of resulting pain or risk of permanent injury to plaintiff. See Rouse, 182 F.3d at 197 (citations omitted); Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 246-47 (3d Cir. 1987).
As explained in the previous section, Thomas has failed to sufficiently allege how each Defendant was deliberately indifferent to his medical needs. Moreover, Thomas has failed to sufficiently allege that his medical needs were serious. A medical need is serious where (1) "it is 'one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a layperson would easily recognize the necessity for a doctor's attention;'" (2) its denial results in unnecessary and wanton infliction of pain; or (3) its denial causes plaintiff to suffer a life-long handicap or permanent loss. See Lanzaro, 834 F.2d at 347 (citations omitted). The complaint fails to allege that Thomas' medical needs fell within any of the three foregoing categories, and instead merely asserts that the alleged deprivation of treatment would "hinder [his] release back into society." While that may be a legitimate concern, it does not rise to the level of a "serious medical need" required for Thomas' claim to be actionable. However, the Court will grant Thomas thirty days leave to amend so that he is afforded an opportunity to cure the deficiencies in his pleadings. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.2007) (leave to amend must be granted sua sponte in civil rights cases).
For the foregoing reasons, Defendants' motions to dismiss are GRANTED. Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE. Thomas is granted thirty days leave to amend his complaint.


Argued Jan. 14, 15, 1947.
As Amended March 31, 1947.
Petitioners brought this action in the Court of Claims under the Act of June 28, 1938, 52 Stat. 1209, as amended, 55 Stat. 593, to recover compensation for lands made available to them by an 1875 Executive Order of the President and sub-sequently taken from them by the United States. Their claim was that by an Act of June 15, 1880, 21 Stat. 199, Congress had undertaken to sell these lands for the benefit of the petitioners, but that they had never been compensated for them. The Court of Claims, one judge concurring specially, made findings of fact and concluded as a matter of law that petitioners had no compensable interest in the lands because they 'never did acquire title to these * * * lands and * * * the Congress never did agree to sell them for the account of' petitioners. Ct.Cl., 64 F.Supp. 569, 571. We granted certiorari, 329 U.S. 694, 67 S.Ct. 50.
The findings of the Court of Claims from official letters, Executive Orders and statutes incorporated in these findings were as follows: A treaty of March 2, 1868, 15 Stat. 619, between the United States and petitioners' ancestors, the Ute Indian tribes, established a reservation for them in Colorado. The northern boundary of the 15 million acres there ceded was described in the treaty as a line fifteen miles north of, and parallel to the 40th parallel of north latitude. In the 15-mile wide strip north of the 40th parallel lay the White River Valley which had been settled by the Utes as a most suitable place for grazing and cultivation. One of the two Government Indian agencies provided for the reservation by the treaty was established in that strip.
The marking out of the erroneous Miller line greatly upset the Indians because they feared they would be driven from the White River Valley. This embarrassed the local Indian agent who had previously assured the Indians that the White River Valley lay within their reservation. He promptly reported the results of the survey and the reaction of the Indians to the Commissioner of Indian Affairs in Washington, and urged the necessity of a new survey at the earliest practicable date. He stated that if the Miller survey were correct, however, the Indians would be driven from the White River Valley—'the only farming land and stock range in this part of the reservation'—and forced to settle on a river forty miles to the south. The Commissioner, acting on this report and a statement by Miller's attorney that Miller's line was correct, wrote to the Secretary of the Interior that the Miller survey 'develops the fact that the White River and surrounding valleys as well as the Agency buildings and improvements at the White River Agency lie north of the * * * boundary and consequently are not within the limits of the * * * Ute Reservation.' He therefore recommended to the Secretary that the President be requested to issue an Executive Order to make available to the Utes additional territory north of the 1868 treaty boundary. The President, on t e recommendation of the Secretary of the Interior, issued the order.1 And thereafter the Commissioner wrote the local agent that the order included 'all that tract of country lying between the north boundary of the Ute reservation as defined in the treaty of March 2, 1868 * * * which was the boundary surveyed by Mr. Miller. * * * This action fully protects your Indians in the peaceable possession of their improvements in the White River Valley and the Agency buildings, and will enable you to assure the Indians of the exact location of their reservation as enlarged.' In 1879, several years after the Executive Order was issued, hostilities broke out between some of the Utes and Government representatives in which the Indian agent at White River, all the agency's male employees, and a U.S. military detachment were killed in the so-called 'Meeker massacre.' Ex. Doc. No. 1, pt. 5, 47th Cong., 2d Sess. (1879) 16—19, 82—97. There have been charges and counter-charges as to who was responsible for inciting these hostilities. Whoever was responsible, it is clear that Congress, aroused by the massacre, took steps to punish the Indians who participated in it, to dispossess the Utes of their reservation, and to remove them from Colorado. Congressional action to accomplish this was provided by the Act of June 15, 1880, 21 Stat. 199, which ratified and embodied an agreement reached earlier that year between the Government and the leaders of the Utes who had promised 'to use their best endeavors with their people to procure their consent to cede to the United States all the territory of the present Ute Reservation * * *.' This Act authorized specific allotments to individual Indians from the lands so ceded. But § 3 provided that 'all the lands not * * * allotted, the title to which is, by the said agreement of * * * the Ute Indians, and this acceptance by the United States, released and conveyed to the United States * * *' would be restored to the public domain for sale as public lands. The proceeds of the sale of the land so conveyed by the Utes to the United States were, upon satisfaction of indemnity conditions imposed because of the massacre, to be distributed to the Indians. Thereafter, in 1882, an Executive Order declared that the lands withdrawn from the public domain by the Executive Order of 1875 and 'set apart for the use of the * * * Ute Indians * * * hereby is, restored to the public domain.' 1 Kappler, supra, pp. 834, 834.
Petitioners contend here that their predecessors understood that they not only owned the White River Valley lands, but that they also owned the Executive Order lands when, in 1880, they agreed to cede their reservation; and that Congress, by incorporating the agreement in the 1880 Act, thereby ratified it along with the Indians' understanding of it. Petitioners further contend that whether or not Congress intended to obligate the Government to account for the Executive Order lands, they knew of the Indians' understanding so that 'the understanding of the Indians having been established,' their understanding entitles them to recover. Finally they argue that the Executive Order unlike the one in issue in Sioux Tribe of Indians v. United States, 316 U.S. 317, 62 S.Ct. 1095, 86 L.Ed. 1501, conveyed a compensable interest to these Indians. The Government counters that the President had no power to give a compensable interest to the Indians to lands lying outside the true 1868 treaty boundaries; that if the President intended to make available lands outside the true boundary it was only to give a transitory, possessory, and not a compensable, interest; that his intent was, in fact, only to secure the Indians in their possession of the White River Valley, but no more, on the mistaken assumption that the White River Valley had been cut off from the reservation by the Miller survey; that the 1880 Act, neither by its terms, its legislative history, nor its administrative interpretation, suggests that Congress intended to ratify or expand the Executive Order or to compensate the Indians for the Executive Order lands; that the Indians did not have a contrary understanding; that in the face of such clear legislative language and intent, a contrary understanding of the Indians, even if established, could not justify a holding that the Indians obtained a compensable interest.
It is conceded that the petitioners have either been, or are currently pressing litigation in the Court of Claims by which they seek to be, compensated for the White River Valley lands, and in fact, for all of the land which was contained in the true boundaries of the 1868 reservation. The additional claim, insofar as it rests on the Executive Order of 1875, cannot be sustained. For the President had no authority to convey to the petitioners a compensable interest in the lands described in the order lying north of the true 1868 boundary. Sioux Tribe of Indians v. United States, supra.2 Nor is there any indication in the findings that the President intended to convey more than a transitory, possessory interest by the 1875 Order. That order made the Indians no more than tenants at the will of the Government on that part of the land outside the true treaty reservation. Id. 316 U.S. at page 331, 62 S.Ct. at page 1101, 86 L.Ed. 1501. Moreover, the Court of Claims' findings of fact, as emphasized by the special concurring opinion, indicate that the Executive Order was promulgated under the mistaken belief that its issuance was necessary in order to give the Indians the use of the White River Valley lands intended to be granted to them by the 1868 treaty and from which they might otherwise have been excluded by the Miller survey. These findings do not indicate that the Commissioner, the Secretary, or the President intended the order to make available the lands it in fact described lying north of the true treaty boundary. The order was designed only to resolve the misunderstanding created by Miller about the White River Valley lands.3 The fullest possible purpose of the Executive Order has actually been carried out. For the Indians' enjoyment of the White River lands was protected during their stay on the reservation, and the lands have either already been paid for, or are the subject of pending litigation in the Court of Claims whereby the Indians seek payment for them. It is with these things in mind that we must consider petitioner's contention that they have a right to recover compensation because of the 1880 Act.
There is not one word in that Act showing a congressional purpose to convey the Executive Order lands, or any other lands, to the Indians. On the contrary, the Act embodied a transaction whereby the Indians were the transferors and conveyed lands to the Government. For the value of lands so conveyed, and for no other, the Government was to make an account to the Indians after certain deductions had been made.
Nor is it possible to deduce from the 1880 Act a congressional purpose to transform the Executive Order into a conveyance of something more than a mere temporary and cancellable possessory right to the Indians. Neither the language of the 1880 Act, its legislative history, nor the circumstances which brought it about, justify the claim that Congress intended to expand the Executive Order into a transfer of a compensable interest in lands not included in the original treaty reservation. The Act was an aftermath of the 'Meeker massacre.' With the massacre in mind, Congress decided to remove the Indians from the Colorado reservation as part of the punishment meted out for this tragedy.4 The very first section of the 1880 Act prohibited any payments at all to the Indians until the Indians involved had surrendered, been apprehended, or until the President had proof that they were dead or outside the United States. Compensation for the families of the massacre victims was to be deducted from the land sale proceeds payable to the Indians. We cannot find from this background a congressional purpose to make a gift to the Indians of the Executive Order lands for which compensation is here sought. The only lands for which Congress agreed in 1880 to compensate the Indians were those that 'the title to which' the Indians then 'released and conveyed to the United States.' They could only release and convey the lands that belonged to them, and only the lands given to them by the original 1868 treaty belonged to them. It was for compensation for such lands only that Congress, in 1938, authorized this action to be maintained. Under all these circumstances, the fact that the 1880 Act required the chiefs and headmen to procure the consent of their people to the cession of 'the present Ute Reservation,' is not sufficient to attribute to Congress a purpose to treat as a part of that reservation, lands which had never been legally conveyed to the Indians and which had only been made available to them by the Executive Order for the sole purpose of making them secure in their possession of the White River Valley.
It is said, however, that the Indians understood in 1880 that they owned the Executive Order lands which lay north of the White River Valley; that they understood their 'present Ute reservation' to include them; that they understood that Congress undertook by the 1880 Act to sell the lands for their benefit; and that Congress was aware of this understanding. The majority opinion of the Court of Claims stated that 'in all probability' this was true. The writer of the concurring opinion thought differently. But even if the Indians had believed that they had a compensable interest in the Executive Order lands, this fact would not necessarily have given it to them. Certainly the absence of presidential authority to give them a compensable title could not be supplied by the Indians' understanding that the President had such authority. The Sioux Indians may also have thought the President had authority to convey title to them; but the reasons on which our decision in the Sioux case, supra, rested do not indicate that our holding depended in any way upon the understanding of the Indians. Nor can this alleged understanding be imputed to Congress in the face of plain language and a rather full legislative history indicating that the 1880 Act neither conveyed nor ratified conveyance of these lands. While it has long been the rule that a treaty with Indians is to be construed so as to carry out the Government's obligations in accordance with the fair understanding of the Indians, we cannot, under the guise of interpretation, create Presidential authority where there was none, nor rewrite congressional acts so as to make them mean something they obviously were not intended to mean. Choctaw Nation of Indians v. United States, 318 U.S. 423, 431, 432, 63 S.Ct. 672, 677, 678, 87 L.Ed. 492. We cannot, under any acceptable rule of interpretation, hold that the Indians owned the lands merely because they thought so. Solicitous as the Government is to carry out its promises to the Indians in good faith, we are satisfied from this record that the Government has performed all that it promised.
As we have pointed out, it seems obvious to us from the findings of the Court of Claims that the Executive Order was only intended to secure for these Indians' ancestors possession of the White River Valley lands conveyed to them by the original 1868 treaty, and which was jeopardized by the Miller survey.5 In fact, the President had no authority to convey a compensable interest in these or other lands to the Utes. Fairly to carry out the 1868 treaty was the order's aim. The 1880 Act, we believe, did not enlarge upon the limited purpose of the Executive Order. To compensate these Indians for lands, not intended to be conveyed by the 1868 treaty, the Executive Order, nor the 1880 Act, would be to pay them for lands which neither they nor their ancestors ever owned and to which they had no claim in equity or justice, so far as the transactions here at issue are concerned. No rule of construction justifies such a result.
The United States, in my opinion, is morally and legally obligated to pay for the land in issue in this case. The Executive Order of 1875 by its terms set aside certain land up to the 'first standard parallel north' for the use of the Ute Indians 'as an addition to their present reservation.' That order alone, of course, could convey no compensable interest to the Indians under the rule of Sioux Tribe of Indians v. United States, 316 U.S. 317, 62 S.Ct. 1095, 86 L.Ed. 1501. But events subsequent to the issuance of the Executive Order in this case make inapplicable the principle of the Sioux case. In 1880 the United States and the Ute chiefs and headmen entered into an agreement whereby the latter promised 'to use their best endeavors with their people to procure their consent to cede to the United States all the territory of the present Ute Rese vation in Colorado.' Congress thereupon passed the Act of June 15, 1880, which recited in its preamble that the chiefs and headmen had 'submitted to the Secretary of the Interior an agreement for the sale to the United States of their present reservation in the State of Colorado.' The Act then incorporated the agreement previously made and provided that all unallotted lands should be deemed to be released and conveyed to the United States.
It seems clear to me that by 1880 the term 'present reservation' included the land which the Executive Order of 1875 stated had been set aside as an addition to the then present reservation. And when the 1880 agreement and the 1880 Act referred to 'present reservation' they must have included that additional land. Adding this informal acknowledgment by Congress of the expanded reservation to the occupation of the land by the Indians and their understaning that it belonged to the reservation, a compensable interest becomes evident. It is immaterial that there was no formal documents conveying a fee simple interest to the Indians; it is likewise irrelevant that there was no formal acknowledgment of the Indian title. Spalding v. Chandler, 160 U.S. 394, 16 S.Ct. 360, 40 L.Ed. 469; United States v. Alcea Band of Tillamooks, 329 U.S. 40, 67 S.Ct. 167. It is enough that the Indians had the right to possess and occupy the land and that the Indians fairly understood that to be the case. An acknowledgment by Congress, however informal, then adds a legal obligation to the moral duty of the United States to pay for the land involved. Such is the situation here.
The Court indicates, however, that the Executive Order of 1875 does not mean what it says. It clearly set apart for the use of the Indians 'as an addition to the present reservation' all the described land up to the 'first standard parallel north.' But it is now suggested that those responsible for the promulgation of that order did not really intend to set aside all the land up to the 'first standard parallel north,' despite the explicit language used. It is said, rather, that the order actually was designed to affect only the White River Valley lands—lands which are some nine miles south of the 'first standard parallel north.' That interpretation of the intent of the framers of the order would make the northern boundary of the Executive Order land coterminous with the northern boundary of the true treaty reservation.
But there is nothing in the findings of the Court of Claims to justify such an interpretation. To disregard the plain words of the order by subtracting a nine-mile strip from a clearly worded description requires definite findings to that effect which are supported by the record. It is not our function, of course, to supply those findings ourselves. Nor can we infer them from the decision of the Court of Claims. That court alone has the power and the duty to make the necessary findings on material issues. 53 Stat. 752, 28 U.S.C. § 288, 28 U.S.C.A. § 288; United States v. Causby, 328 U.S. 256, 267, 268, 66 S.Ct. 1062, 1068, 1069. If it is material that the framers of the Executive Order intended to set aside less land than that described in the order, the case should be remanded to the Court of Claims so that it can make the necessary findings in this respect.
Cf. Executive Order of August 17, 1876, which interpreted a treaty so as to 'set apart (certain land) as a part of the Ute Indian Reservation, in accordance with the first article of an agreement made with said Indians and ratified by Congress. * * *' 1 Kappler, supra, p. 834.
The Court of Claims did not find this as an ultimate fact. But the correspondence which plainly shows it was incorporated in the findings. This Court has said with reference to findings of the Court of Claims that the 'absence of the finding of an ultimate fact does not require a reversal of the judgment if the circumstantial facts as found are such that the ultimate fact follows from them as a necessary inference.' United States v. Wells, 283 U.S. 102, 120, 51 S.Ct. 446, 452, 75 L.Ed. 867.
See 67 S.Ct. 654, supra.


text:
PEOPLE OF THE PHILIPPINES, PETITIONER, VS. ARISTEO E. ATIENZA, RODRIGO D. MANONGSONG, CRISPIN M. EGARQUE, AND THE HON. SANDIGANBAYAN (THIRD DIVISION), RESPONDENTS.
This is a petition for review on certiorari assailing the Resolution dated February 28, 2006 of the Sandiganbayan (Third Division) granting the Demurrer to Evidence filed by respondents Aristeo E. Atienza and Rodrigo D. Manongsong, which effectively dismissed Criminal Case No. 26678 for violation of Section 3 (e) of Republic Act No. 3019.
Duly arraigned, respondents entered their respective pleas of not guilty to the crime charged against them. After pre-trial, trial on the merits ensued.
To establish its case, the prosecution presented the testimonies of Mercedita Atienza (Mercedita), Alexander Singson (Alexander), Edmundo Evora (Edmundo), and Acting Barangay Chairman Concepcion Escanillas (Escanillas).
Mercedita testified that she was the caretaker of Hondura Beach Resort, a resort owned by Edmundo in Puerto Galera, Oriental Mindoro. She narrated that on July 3, 2000, Edmundo caused the construction of a fence made of coco lumber and G.I. sheets worth P5,000.00 on his resort. On July 4, 2000, she found out that the fence that was just recently built was destroyed. Upon the instruction of Edmundo, she reported the incident to the barangay authorities. On July 5, 2000, Edmundo again caused the construction of a second fence on the same property worth P3,000.00. However, on the day following, the fence was again destroyed. Mercedita stated that she was informed by some people who were there that a policeman and Engr. Manongsong were the ones who destroyed the fence.
Mercedita further testified that Edmundo instructed her to report the matter to the police. When she inquired at the police station, Egarque admitted that he destroyed the fence upon the order of Mayor Atienza. When she asked Mayor Atienza about the incident, the latter informed her that the fence was not good for Puerto Galera since the place was a tourist destination and that the land was intended for the fishermen association. Mercedita added that Engr. Manongsong admitted that he destroyed the fence upon the order of the mayor for lack of municipal permit and that the land was intended for the fishermen. Mercedita also stated that she reported to acting Barangay Chairman Escanillas that it was Engr. Manongsong and Egarque who destroyed the fence upon the order of the mayor.
Alexander testified that he and a certain Reynaldo Gumba constructed the fence twice on the subject property. On the morning of July 6, 2000, he saw the fence being destroyed by Engr. Manongsong and Egarque. He said that he informed Mercedita about the incident and he accompanied the latter to the police station and the offices of Mayor Atienza and Engr. Manongsong. They eventually reported the incident to acting Barangay Chairman Escanillas.
Private complainant Edmundo corroborated the testimony of Mercedita and further stated that due to the incident, he requested the barangay chairman for a meeting. On July 24, 2000, acting Barangay Chairman Escanillas, the barangay secretary, Engr. Manongsong, Mercedita, Alexander, and a certain Aguado attended the meeting at the barangay hall. Edmundo stated that when Engr. Manongsong was asked why Edmundo was not notified of the destruction of the fence, Engr. Manongsong replied, “Sino ka para padalhan ng Abiso?” Edmundo said that they eventually failed to settle the case amicably.
Acting Barangay Chairman Escanillas testified that Mercedita and Alexander went to her on July 4, 2000 and July 6, 2000 to report that the fence constructed on the property of Edmundo was destroyed by Engr. Manongsong and Egarque upon the order of Mayor Atienza. She added that upon the request of Mercedita, she wrote Engr. Manongsong for a meeting with Edmundo, but the parties failed to settle the dispute on the scheduled meeting.
All the exhibits offered by the prosecution were marked in evidence and were admitted on September 21, 2005, which consisted of, among others, machine copies of transfer certificates of title, affidavits, and barangay blotters.
Meanwhile, on September 22, 2004, petitioner filed a Motion to Suspend Accused Pendente Lite, which was opposed by Mayor Atienza and Engr. Manongsong. On August 4, 2005, the Sandiganbayan granted the motion. Mayor Atienza then filed a Motion for Reconsideration, which petitioner opposed.
Thereafter, on October 11, 2005, Mayor Atienza and Engr. Manongsong filed a Motion for Leave of Court to File Motion to Acquit by Way of Demurrer to Evidence, which petitioner opposed. On December 6, 2005, the court a quo issued a Resolution which granted the motion. In the same resolution, the court a quo also held in abeyance the resolution of Mayor Atienza’s motion for reconsideration of the resolution granting his suspension from office.
On January 9, 2006, Mayor Atienza and Engr. Manongsong filed a Demurrer to Evidence (Motion to Acquit), which was anchored on the credibility of the witnesses for the prosecution. Respondents maintain that the evidence presented were not sufficient to hold them guilty of the offense charged. On January 19, 2006, petitioner filed its Comment/Opposition.
On January 23, 2006, albeit belatedly, Egarque filed a Manifestation that he was adopting the Demurrer to Evidence filed by his co-accused.
WHEREFORE, for lack of sufficient evidence to prove the guilt of all the accused beyond reasonable doubt, the Demurrer to Evidence is hereby GRANTED. This case is hereby ordered DISMISSED.
The bail bonds posted by all accused is hereby ordered CANCELLED and RETURNED to them, subject to the usual accounting rules and regulations.
The Hold Departure Order issued by this Court against all of the accused in this case are hereby LIFTED and SET ASIDE. Let the Commissioner of the Bureau of Immigration and Deportation be notified accordingly.
Consequently, the Motion for Reconsideration, dated August 31, 2005, filed by accused Atienza regarding his suspension from office pendent lite, is hereby rendered moot and academic.
In granting the Demurrer to Evidence, the Sandiganbayan ratiocinated that not all the elements of the crime charged were established by the prosecution, particularly the element of manifest partiality on the part of respondents. The Sandiganbayan held that the evidence adduced did not show that the respondents favored other persons who were similarly situated with the private complainant.
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN DENYING THE PEOPLE DUE PROCESS WHEN IT RESOLVED ISSUES NOT RAISED BY RESPONDENTS IN THEIR DEMURRER TO EVIDENCE, WITHOUT AFFORDING THE PROSECUTION AN OPPORTUNITY TO BE HEARD THEREON.
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN DECIDING A QUESTION OF SUBSTANCE NOT IN ACCORD WITH LAW OR EXISTING JURISPRUDENCE WHEN IT CONSIDERED MATTERS OF DEFENSE.
Petitioner contends that the prosecution was not afforded due process when the Sandiganbayan granted the Demurrer to Evidence based on the ground that the prosecution failed to establish bad faith on the part of the respondents. Petitioner argues that the Sandiganbayan should have resolved the Demurrer to Evidence based on the argument of the respondent questioning the credibility of petitioner’s witnesses and the admissibility of their testimonies in evidence, not upon an issue which petitioner was not given an opportunity to be heard, thus, effectively denying the prosecution due process of law.
Petitioner maintains that contrary to the conclusion of the court a quo there was evident bad faith on the part of the respondents. Petitioner insists that the act itself of demolishing a fence erected upon private property without giving notice of the intended demolition, and without giving the owner of the same the opportunity to be heard or to rectify matters, is evident bad faith.
Petitioner also contends that the element of manifest partiality was sufficiently established when the fence was destroyed on the rationale that they do not have a permit to erect the fence; the place was intended for the benefit of fishermen; and it was a tourist spot. Moreover, the demolition was allegedly done in the guise of official business when the fence was demolished on the basis of the above-stated purpose.
Finally, petitioner argues that the constitutional proscription on double jeopardy does not apply in the present case.
On their part, respondents argue that the Sandiganbayan was correct in granting the Demurrer to Evidence and dismissing the case. Respondents allege that the prosecution was not denied due process of law. Respondents maintain that the prosecution was given every opportunity to be heard. In fact, the assailed resolution was issued after the prosecution has rested its case. Moreover, respondents insist their right against double jeopardy must be upheld.
3. His action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions.
In the case at bar, the Sandiganbayan granted the Demurrer to Evidence on the ground that the prosecution failed to establish the second element of violation of Section 3 (e) of RA 3019.
The second element provides the different modes by which the crime may be committed, that is, through “manifest partiality,” “evident bad faith,” or “gross inexcusable negligence.” In Uriarte v. People, this Court explained that Section 3 (e) of RA 3019 may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality, or by culpa, as when the accused committed gross inexcusable negligence. There is “manifest partiality” when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another. “Evident bad faith” connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. “Evident bad faith” contemplates a state of mind affirmatively operating with furtive design or with some motive of self-interest or ill will or for ulterior purposes. “Gross inexcusable negligence” refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected.
The presence of the first element of this offense was not disputed. The prosecution established that accused-movants were public officers, being then the Mayor, Municipal Engineer, and member of the PNP, at the time alleged in the information.
Anent the second element, did the act of destroying the subject fences on July 4, 2000 and on July 6, 2000 allegedly by accused Manongsong and Egarque, without giving any notice to the private complainant, amount to manifest partiality and/or evident bad faith as indicated in the information?
Manifest partiality was not present in this case. The evidence adduced did not show that accused-movants favored other persons who were similarly situated with the private complainant.
Considering that the second element was not present, the Court deemed it proper not to discuss the third element.
Moreover, contrary to petitioner’s contention, the prosecution was not denied due process. It is to be noted that the prosecution participated in all the proceedings before the court a quo and has filed numerous pleadings and oppositions to the motions filed by respondent. In fact, the prosecution has already rested its case and submitted its evidence when the demurrer was filed. Where the opportunity to be heard, either through verbal arguments or pleadings, is accorded, and the party can present its side or defend its interests in due course, there is no denial of procedural due process. What is repugnant to due process is the denial of the opportunity to be heard, which is not present here.
Clearly, double jeopardy has set in. The elements of double jeopardy are (1) the complaint or information was sufficient in form and substance to sustain a conviction; (2) the court had jurisdiction; (3) the accused had been arraigned and had pleaded; and (4) the accused was convicted or acquitted, or the case was dismissed without his express consent.
The above elements are all attendant in the present case: (1) the Information filed before the Sandiganbayan in Criminal Case No. 26678 against respondents were sufficient in form and substance to sustain a conviction; (2) the Sandiganbayan had jurisdiction over Criminal Case No. 26678; (3) respondents were arraigned and entered their respective pleas of not guilty; and (4) the Sandiganbayan dismissed Criminal Case No. 26678 on a Demurrer to Evidence on the ground that not all the elements of the offense as charge exist in the case at bar, which amounts to an acquittal from which no appeal can be had.
The demurrer to evidence in criminal cases, such as the one at bar, is "filed after the prosecution had rested its case," and when the same is granted, it calls "for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of the accused." Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to place the accused in double jeopardy. The verdict being one of acquittal, the case ends there.
Verily, in criminal cases, the grant of demurrer is tantamount to an acquittal and the dismissal order may not be appealed because this would place the accused in double jeopardy. Although the dismissal order is not subject to appeal, it is still reviewable but only through certiorari under Rule 65 of the Rules of Court. For the writ to issue, the trial court must be shown to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction such as where the prosecution was denied the opportunity to present its case or where the trial was a sham, thus, rendering the assailed judgment void. The burden is on the petitioner to clearly demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. In the present case, no such circumstances exist to warrant a departure from the general rule and reverse the findings of the Sandiganbayan.
WHEREFORE, premises considered, the petition is DENIED. The Resolution dated February 28, 2006 of the Sandiganbayan, in Criminal Case No. 26678, is AFFIRMED.
Bersamin,** Abad, Villarama, Jr.,*** and Perlas-Bernabe, JJ., concur.
** Designated Acting Member in lieu of Associate Justice Jose Catral Mendoza, Jr. per Special Order No. 1241 dated June 14, 2012.
 Penned by Associate Justice Norberto Y. Geraldez, with Associate Justices Godofredo L. Legaspi and Efren N. De la Cruz, concurring; rollo, pp. 56-62.
 Records, Vol. I, pp. 1-2.
 Records, Vol. II, p. 218.
 Records, Vol. I, pp. 424-429.
 Records, Vol. II, pp. 201-213.
 Uriarte v. People, G.R. No. 169251, December 20, 2006, 511 SCRA 471, 486, citing Santos v. People, G.R. No. 161877, March 23, 2006, 485 SCRA 185, 194, Cabrera v. Sandiganbayan, G.R. Nos. 162314-17, October 25, 2004, 441 SCRA 377, 386, and Jacinto v. Sandiganbayan, G.R. No. 84571, October 2, 1989, 178 SCRA 254, 259.
 Gallego v. Sandiganbayan, 201 Phil. 379, 383 (1982).
 Albert v. Sandiganbayan, G.R. No. 164015, February 26, 2009, 580 SCRA 279, 290.
 Trans Middle East (Phils.) Equities, Inc. v. Sandiganbayan, G.R. No. 129434, August 18, 2006, 499 SCRA 308, 317-318.
 Gaoiran v. Alcala, G.R. No. 150178, November 26, 2004, 444 SCRA 428, 444.
 People v. Tan, G.R. No. 167526, July 26, 2010, 625 SCRA 388, 395-396.
 G.R. Nos. 137707-11, December 17, 2004, 447 SCRA 291.
 People v. Sandiganbayan (Third Division), G.R. No. 174504, March 21, 2011, 645 SCRA 726, 731-732.

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