JAY INSLEE, ET AL., Defendants.
This case has been referred to Magistrate Judge Theresa L. Fricke pursuant to 28 U.S.C. § 636(b)(1) and Local Rule MJR 3 and 4. This matter comes before the Court on plaintiff's filing of an application to proceed in forma pauperis and proposed complaint. Dkt. 1, 2.
Plaintiff, an inmate at Washington State Penitentiary, has filed a prisoner civil rights action under 42 U.S.C. § 1983 against defendants Governor Jay Inslee and 12 other individuals, claiming they have violated his rights under the Fifth, Sixth, Eighth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments. Dkt. 1, pp. 9-27. He requests damages, a vacation of his judgment of conviction, and other injunctive relief. Dkt. 1, p. 28.
The Court found Plaintiff's complaint to be deficient and ordered that he amend it or otherwise show cause why it should not be dismissed. Dkt. 12. Plaintiff has done neither. Instead, he has filed a response that does not cure the deficiencies in the complaint or explain how it states a claim for relief. Dkt. 14. The complaint continues to be deficient for the reasons set forth in the Court's prior order, Dkt. 12. Thus, Plaintiff has failed to state a claim upon which relief can be granted. The undersigned recommends the action be dismissed without prejudice and that Plaintiff's motion to proceed in forma pauperis be denied.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). The fact that a prisoner pays the filing fee is no barrier to a court, when dismissing the case as frivolous, directing that the dismissal count as a strike under 28 U.S.C. § 1915(g). Belanus v. Clark, 796 F.3d 1021, 1028 (9th Cir. 2015).
Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). To avoid dismissal for failure to state a claim, a plaintiff must include more than “naked assertions, ” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-557. A claim upon which the court can grant relief has facial plausibility; 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).
Plaintiff's complaint is brought under § 1983. To state a claim under § 1983, a plaintiff must allege facts showing (1) the conduct about which he complains was committed by a person acting under the color of state law; and (2) the conduct deprived him of a federal constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, to state a valid § 1983 claim, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant, and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
If the person named as a defendant was a supervisory official, plaintiff must either state that the defendant personally participated in the constitutional deprivation, or plaintiff must state, if he can do so in good faith, that the defendant was aware of the similar widespread abuses, but with deliberate indifference to plaintiff's constitutional rights, failed to take action to prevent further harm to plaintiff and also state facts to support this claim. See Monell v. New York City Department of Social Services, 436 U.S. 658, 691 (1978).
Plaintiff must repeat this process for each person he names as a defendant. If plaintiff fails to affirmatively link the conduct of each named defendant with the specific injury suffered by plaintiff, the claim against that defendant will be dismissed for failure to state a claim. Conclusory allegations that a defendant or a group of defendants have violated a constitutional right are not acceptable and will be dismissed.
Here, Plaintiff appears to assert claims relating to improprieties at his sentencing hearing, prosecutorial misconduct including withholding and destruction of evidence, ineffective assistance of counsel, and improper proceedings before the Indeterminate Sentence Review Board. Dkt. 1.
In the Court's prior order, it advised Plaintiff that his proposed complaint fails to allege facts from which it may be inferred that any of the named defendants violated his constitutional rights. Dkt. 12. The Court informed Plaintiff that he must provide a “short and plain statement of the claim, ” stating how specific acts or omissions by specific defendants caused violations of his constitutional rights. Id. It further informed Plaintiff that many of his claims are more appropriate for a habeas corpus petition under 28 U.S.C. § 2254 than a civil rights claim under § 1983, as they apparently relate to the validity of his conviction and sentence, not his conditions of confinement, and because Plaintiff's conviction or sentence has not been reversed, expunged, invalidated, or impugned. Dkt. 12 (citing Preiser v. Rodriguez, 411 U.S. 475, 489 (1973); Heck v. Humphrey, 512 U.S. 477, 489 (1994)).
Finally, the Court informed Plaintiff that claims which accrued before September 22, 2014, are time-barred under the applicable statute of limitations. Dkt. 12 (citing Rose v. Rinaldi, 654 F.2d 546 (9th Cir. 1981); RCW 4.16.080(2)). It noted that many of Plaintiff's claims appear to be untimely, as they depend entirely on events that occurred between 2003 and 2005, Dkt. 1, pp. 9-22, or on events that occurred in 2012, Dkt. 1, pp. 22-25. It advised Plaintiff that he must show cause why these claims should not be dismissed. Dkt. 12.


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Ramos-Martinez, E. M., Fimognari, L. and Sakuragi, Y. (2017). High-yield secretion of recombinant proteins from the microalga Chlamydomonas reinhardtii. Plant Biotechnol J 15(9): 1214-1224.
De Porcellinis, A., Frigaard, N. U. and Sakuragi, Y. (2017). Determination of the Glycogen Content in Cyanobacteria. J Vis Exp(125).
Rasmussen, R. E., Erstad, S. M., Ramos-Martinez, E. M., Fimognari, L., De Porcellinis, A. J. and Sakuragi, Y. (2016). An easy and efficient permeabilization protocol for in vivo enzyme activity assays in cyanobacteria. Microb Cell Fact 15(1): 186.
de Porcellinis, A. J., Klahn, S., Rosgaard, L., Kirsch, R., Gutekunst, K., Georg, J., Hess, W. R. and Sakuragi, Y. (2016). The Non-Coding RNA Ncr0700/PmgR1 is Required for Photomixotrophic Growth and the Regulation of Glycogen Accumulation in the Cyanobacterium Synechocystis sp. PCC 6803. Plant Cell Physiol 57(10): 2091-2103.
Gangl, D., Zedler, J. A., Rajakumar, P. D., Martinez, E. M., Riseley, A., Wlodarczyk, A., Purton, S., Sakuragi, Y., Howe, C. J., Jensen, P. E. and Robinson, C. (2015). Biotechnological exploitation of microalgae. J Exp Bot 66(22): 6975-6990.
Nafisi, M., Stranne, M., Fimognari, L., Atwell, S., Martens, H. J., Pedas, P. R., Hansen, S. F., Nawrath, C., Scheller, H. V., Kliebenstein, D. J. and Sakuragi, Y. (2015). Acetylation of cell wall is required for structural integrity of the leaf surface and exerts a global impact on plant stress responses. Front Plant Sci 6: 550.
Nafisi, M., Fimognari, L. and Sakuragi, Y. (2015). Interplays between the cell wall and phytohormones in interaction between plants and necrotrophic pathogens. Phytochemistry 112: 63-71.
Lund, C. H., Bromley, J. R., Stenbaek, A., Rasmussen, R. E., Scheller, H. V. and Sakuragi, Y. (2015). A reversible Renilla luciferase protein complementation assay for rapid identification of protein-protein interactions reveals the existence of an interaction network involved in xyloglucan biosynthesis in the plant Golgi apparatus. J Exp Bot 66(1): 85-97.
Nafisi, M., Stranne, M., Zhang, L., van Kan, J. A. and Sakuragi, Y. (2014). The endo-arabinanase BcAra1 is a novel host-specific virulence factor of the necrotic fungal phytopathogen Botrytis cinerea. Mol Plant Microbe Interact 27(8): 781-792.
Oikawa, A., Lund, C. H., Sakuragi, Y. and Scheller, H. V. (2013). Golgi-localized enzyme complexes for plant cell wall biosynthesis. Trends Plant Sci 18(1): 49-58.
Rosgaard, L., de Porcellinis, A. J., Jacobsen, J. H., Frigaard, N. U. and Sakuragi, Y. (2012). Bioengineering of carbon fixation, biofuels, and biochemicals in cyanobacteria and plants. J Biotechnol 162(1): 134-147.
Sogaard, C., Stenbaek, A., Bernard, S., Hadi, M., Driouich, A., Scheller, H. V. and Sakuragi, Y. (2012). GO-PROMTO illuminates protein membrane topologies of glycan biosynthetic enzymes in the Golgi apparatus of living tissues. PLoS One 7(2): e31324.
Harholt, J., Jensen, J. K., Verhertbruggen, Y., Sogaard, C., Bernard, S., Nafisi, M., Poulsen, C. P., Geshi, N., Sakuragi, Y., Driouich, A., Knox, J. P. and Scheller, H. V. (2012). ARAD proteins associated with pectic Arabinan biosynthesis form complexes when transiently overexpressed in planta. Planta 236(1): 115-128.
Rautengarten, C., Ebert, B., Ouellet, M., Nafisi, M., Baidoo, E. E., Benke, P., Stranne, M., Mukhopadhyay, A., Keasling, J. D., Sakuragi, Y. and Scheller, H. V. (2012). Arabidopsis Deficient in Cutin Ferulate encodes a transferase required for feruloylation of omega-hydroxy fatty acids in cutin polyester. Plant Physiol 158(2): 654-665.
Atmodjo, M. A., Sakuragi, Y., Zhu, X., Burrell, A. J., Mohanty, S. S., Atwood, J. A., 3rd, Orlando, R., Scheller, H. V. and Mohnen, D. (2011). Galacturonosyltransferase (GAUT)1 and GAUT7 are the core of a plant cell wall pectin biosynthetic homogalacturonan:galacturonosyltransferase complex. Proc Natl Acad Sci U S A 108(50): 20225-20230.
Jacobsen, J. H., Rosgaard, L., Sakuragi, Y. and Frigaard, N. U. (2011). One-step plasmid construction for generation of knock-out mutants in cyanobacteria: studies of glycogen metabolism in Synechococcus sp. PCC 7002. Photosynth Res 107(2): 215-221.
Manabe, Y., Nafisi, M., Verhertbruggen, Y., Orfila, C., Gille, S., Rautengarten, C., Cherk, C., Marcus, S. E., Somerville, S., Pauly, M., Knox, J. P., Sakuragi, Y. and Scheller, H. V. (2011). Loss-of-function mutation of REDUCED WALL ACETYLATION2 in Arabidopsis leads to reduced cell wall acetylation and increased resistance to Botrytis cinerea. Plant Physiol 155(3): 1068-1078.
Jensen, J. K., Sorensen, S. O., Harholt, J., Geshi, N., Sakuragi, Y., Moller, I., Zandleven, J., Bernal, A. J., Jensen, N. B., Sorensen, C., Pauly, M., Beldman, G., Willats, W. G. and Scheller, H. V. (2008). Identification of a xylogalacturonan xylosyltransferase involved in pectin biosynthesis in Arabidopsis. Plant Cell 20(5): 1289-1302.
Vainonen, J. P., Sakuragi, Y., Stael, S., Tikkanen, M., Allahverdiyeva, Y., Paakkarinen, V., Aro, E., Suorsa, M., Scheller, H. V., Vener, A. V. and Aro, E. M. (2008). Light regulation of CaS, a novel phosphoprotein in the thylakoid membrane of Arabidopsis thaliana. FEBS J 275(8): 1767-1777.
Sakuragi, Y. and Kolter, R. (2007). Quorum-sensing regulation of the biofilm matrix genes (pel) of Pseudomonas aeruginosa. J Bacteriol 189(14): 5383-5386.
Sakuragi, Y., Maeda, H., Dellapenna, D. and Bryant, D. A. (2006). alpha-Tocopherol plays a role in photosynthesis and macronutrient homeostasis of the cyanobacterium Synechocystis sp. PCC 6803 that is independent of its antioxidant function. Plant Physiol 141(2): 508-521.
Maeda, H., Sakuragi, Y., Bryant, D. A. and Dellapenna, D. (2005). Tocopherols protect Synechocystis sp. strain PCC 6803 from lipid peroxidation. Plant Physiol 138(3): 1422-1435.
Mimuro, M., Tsuchiya, T., Inoue, H., Sakuragi, Y., Itoh, Y., Gotoh, T., Miyashita, H., Bryant, D. A. and Kobayashi, M. (2005). The secondary electron acceptor of photosystem I in Gloeobacter violaceus PCC 7421 is menaquinone-4 that is synthesized by a unique but unknown pathway. FEBS Lett 579(17): 3493-3496.
Sakuragi, Y., Zybailov, B., Shen, G., Bryant, D. A., Golbeck, J. H., Diner, B. A., Karygina, I., Pushkar, Y. and Stehlik, D. (2005). Recruitment of a foreign quinone into the A1 site of photosystem I. Characterization of a menB rubA double deletion mutant in Synechococcus sp. PCC 7002 devoid of FX, FA, and FB and containing plastoquinone or exchanged 9,10-anthraquinone. J Biol Chem 280(13): 12371-12381.
Cheng, Z., Sattler, S., Maeda, H., Sakuragi, Y., Bryant, D. A. and DellaPenna, D. (2003). Highly divergent methyltransferases catalyze a conserved reaction in tocopherol and plastoquinone synthesis in cyanobacteria and photosynthetic eukaryotes. Plant Cell 15(10): 2343-2356.
Sakuragi, Y., Zybailov, B., Shen, G., Jones, A. D., Chitnis, P. R., van der Est, A., Bittl, R., Zech, S., Stehlik, D., Golbeck, J. H. and Bryant, D. A. (2002). Insertional inactivation of the menG gene, encoding 2-phytyl-1,4-naphthoquinone methyltransferase of Synechocystis sp. PCC 6803, results in the incorporation of 2-phytyl-1,4-naphthoquinone into the A(1) site and alteration of the equilibrium constant between A(1) and F(X) in photosystem I. Biochemistry 41(1): 394-405.
Sakuragi, Y., Frigaard, N. U., Shimada, K. and Matsuura, K. (1999). Association of bacteriochlorophyll a with the CsmA protein in chlorosomes of the photosynthetic green filamentous bacterium Chloroflexus aurantiacus. Biophys Biochem Act 1413: 172-180.
van Walree, C. A., Sakuragi, Y., Steensgaard, D. B., Bösinger, C. S., Frigaard, N. U., Cox, R. P., Holzwarth, A. R. and Miller, M. (1999). Effect of alkaline treatment on bacteriochlorophyll a, quinones and energy transfer in chlorosomes from Chlorobium tepidum and Chlorobium phaeobacteroides. Photochem Photobiol 69: 322-328.
Corson, G. E., Nagashima, K. V. P., Matsuura, K., Sakuragi, Y., Wettasinghe, R., Qin, H., Allen, R. and Knaff, D. B. (1999). Gene encoding light-harvesting and reaction center proteins from Chromatium vinosum. Photosynth Res 59: 39-52.
Nagashima, K. V. P., Sakuragi, Y., Shimada, K. and Matsuura, K. (1998). Comparative analysis of the primary structure of the reaction center-bound cytochrome subunit in purple bacteria. Photosynth Res 55: 349-355.

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The New Jersey Supreme Court issued a controversial ruling in late September 2015, State v. Witt, regarding the circumstances in which police can search a vehicle without a warrant during a traffic stop. After arresting the defendant on suspicion of driving while intoxicated (DWI), the arresting officer searched the vehicle and found a handgun. This resulted in a charge of unlawful possession of a firearm. The court found that the search was lawful, despite the lack of a warrant. This overturns the rule established by the court in 2009 in State v. Pena-Flores, sometimes also cited as State v. Fuller, which required “exigent circumstances” for warrantless vehicle searches. Federal case law allows warrantless vehicle searches, often merely with a showing of probable cause. This is commonly known as the “automobile exception” to the Fourth Amendment’s search warrant requirement. The court stated that its ruling in Witt is bringing New Jersey in line with the federal standard.
The U.S. Supreme Court first identified an “automobile exception” in 1925 in Carroll v. United States, finding that the inherent mobility of a vehicle makes it impractical to require an officer to obtain a warrant before a search—by the time they got the warrant, the vehicle might be halfway to the state line. Courts have expanded the automobile exception in the 90 years since Carroll was decided. Prior to 2009, the general rule in New Jersey was established by the New Jersey Supreme Court’s 1981 decision in State v. Alston. That case held that the automobile exception allowed police to search a vehicle without a warrant both during a lawful traffic stop and after the arrest of the vehicle’s occupants, when there was no longer any risk of the vehicle being moved.
In Pena-Flores, the court noted that it has “never subscribed fully to the federal version of the automobile exception,” and it noted that many of the cases in which it applied the automobile exception actually involved exigent circumstances. A case decided on the same day as Alston, State v. Martin, involved a vehicle whose occupants, suspects in a bank robbery, had fled the scene but could “have returned at any moment to move the car or remove the car’s contents.” Waiting to obtain a warrant before searching the vehicle would have been impractical. The court crafted a three-part rule in Pena-Flores for warrantless vehicle searches: (1) an unexpected traffic stop, (2) probable cause to suspect that the vehicle contains evidence of a crime or contraband, and (3) exigent circumstances rendering it impractical to wait for a warrant.
One issue with the exigent circumstances standard, which the court acknowledged in Pena-Flores, is the difficulty an officer may face in assessing whether a situation meets this standard during a traffic stop. The court recommended that law enforcement and courts work on facilitating telephone and electronic communication in order to streamline the processing of requesting and obtaining a warrant. Now that six years have passed since that ruling, the court took another look at the exigent circumstances requirement in Witt and found it to be “unsound in principle and unworkable in practice.” Witt explicitly overturns Pena-Flores and returns the state to the Alston standard.
If you have been charged with an alleged DWI in New Jersey, an experienced and knowledgeable DWI lawyer can help you prepare your case and present the best possible defense of your rights. At Levow & Associates, we have dedicated 100% of our practice to representing DWI defendants. We are available to help you 24/7. Contact us online or at (877) 975-3399 today to schedule a free and confidential consultation.

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Fla. Stat. 777.04(3) indicates that “[a] person who agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy.” In other words, “A conspiracy is an express or implied agreement or understanding between two or more persons to commit a criminal offense.” Sheriff v. State, 780 So. 2d 920, 921 (Fla. 4th DCA 2001). “To prove the crime of conspiracy, the state must prove an agreement and an intention to commit an offense.” Id.
With regards to trafficking in narcotics, in this case cocaine, the State would be required to prove a person conspired with another to “knowingly sell[ ], purchase[ ], manufacture[ ], deliver[ ], or bring[ ] into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine . . . .” § 893.135(1)(b)1., Fla. Stat. (2017).
A conspiracy can be proven by testimony of a co-conspirator, actions of the parties, or testimony of the third party witness to the formation of the conspiracy. For example, if an undercover agent were to witness a person hand another person narcotics in a vehicle, the person who received in the vehicle then exits and meets the undercover agent, and then that person were to sell to the undercover agent, there’s a good argument that the two people originally in the vehicle had conspired to traffic in the narcotics.
However, as a recent case indicates, simply aiding and abetting another to commit a crime (while it is a separate crime) does not prove a conspiracy.
“The evidence presented at trial, which included Gould’s testimony, showed that her boyfriend, without any involvement on her part, had previously sold relatively small amounts of cocaine to a police confidential informant (“CI”). For the instant transaction, the boyfriend made arrangements with the CI for the sale of a larger amount of cocaine — one ounce — to take place in the parking lot of a shopping center. Gould’s boyfriend came to her house and insisted that she drive him to the store in his car, even though her own car was available and fully operational. The CI, as agreed between the CI and the boyfriend, was parked in the lot in an easily recognizable, customized Hummer. Upon arriving at the shopping center, Gould circled the parking lot, drove by the Hummer twice, exited the lot, and then returned to circle again. Gould then stopped the car several empty spaces down from the Hummer, after which her boyfriend got out of the car and went to the Hummer. Gould, now alone in the car, moved the car further away from the Hummer, but where it was still within her line of sight. As she sat in the car, Gould appeared to be looking intently at the Hummer while also repeatedly scanning the surrounding parking lot.” Id.
“While that evidence may be sufficient for a conviction of trafficking based on aiding and abetting her boyfriend, it is insufficient to prove a prior agreement or that Gould participated either expressly or impliedly in any preplanning. See Rodriquez v. State, 643 So. 2d 111, 111 (Fla. 2d DCA 1994) (holding that evidence of defendant’s actions as driver and knowledge of drug deal were insufficient to prove conspiracy); Gray v. State, 526 So. 2d 1020, 1021 (Fla. 5th DCA 1988) (holding there was no conspiracy when there “was no proof of any prearrangement, any prior discussions or plans or anything else done in preparation”); Ashenoff v. State, 391 So. 2d 289, 291 (Fla. 3d DCA 1980) (holding that, while acts may present a prima facie case of aiding and abetting, they do not constitute conspiracy where there is no showing of both an agreement and an intent to commit offense). See also McCants v. State, 587 So. 2d 673, 673 (Fla. 1st DCA 1991) (“Although such proof [of conspiracy] may sometimes encompass circumstantial evidence, a conspiracy may not be inferred solely from conduct which merely aids and abets an offense.”).
Without proof that Gould participated in the planning of any aspect of this transaction, there is insufficient evidence to prove an agreement existed between Gould and the boyfriend to traffic in twenty-eight grams of cocaine. Without the presence of an agreement, there can be no conspiracy. See, e.g., Sheriff, 780 So. 2d at 922 (reversing conviction for conspiracy when state failed to prove essential elements).
Adam L. Bantner, II is a board certified criminal trial law attorney. His expertise can help you if you find yourself faced with a conspiracy charge. Call us today at 813.397.3965!


L.E.Waterman Co. v. Modern Pen Co.,235U.S.88,59 L.Ed.142,35S.Ct.91(1914).
MacSweeney Enterprises,Inc. v. Tarantino，235 Cal. App. 2d 549，45 Cal. Rptr. 546，146 U.S.P.Q. 557（3d Dist. 1965）.
Abercrombie & Fitch Company, Plaintiff-Appellant, v. Hunting World, Incorporated, Defendant-Appellee., 537 F.2d 4 (2nd Cir.1976).
Charles J. Donnelly，Inc. v. Donnelly Bros.,96R.I. 255，191 A.2d 143，137 U.S.P.Q. 677(1963).
Restatement（Third）of Unfair Competition §14，Cimment e（1995）.
Sardi’s Restaurant Corp. v. Sardie, 755 F.2d 719,226 U.S.P.Q.23(9th cir. 1985).
Thomas McCarthy , McCarthy on Trademarks and Unfair Competition §13：11 (4th ed . 2006) .
Alfred Dunhill of London, Inc. v. Dunhill Shirt Shop, Inc., 3 F. Supp. 487(D.N.Y.1929).


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Numerical models of landscape evolution play a vital role in geomorphology, but there remains a pressing need to test these models against field data. We are developing two case studies for model-data comparison testing. The two case studies are sites of rapid, decadal landscape change.
models of longer-term landscape dynamics should be consistent with shorter-term behavior.
The study pairs two very different environments: a low-relief, semi-arid, soft-rock setting dominated by rapid gully erosion and scarp retreat, and a steep, montane, forested, crystalline-rock setting responding to a 1996 wildfire. The first site, located on the high plains of eastern Colorado, provides a unique opportunity to reconstruct erosion rates and channel growth patterns over a 70-year period. The second site, in the Colorado Front Range, contains an extraordinarily rich 14-year database of post-fire geomorphic response, thanks to intensive monitoring efforts by the U.S. Geological Survey.
The project relies on a variety of methods, including OSL dating, LiDAR DEM analysis (both airborne and terrestrial), and numerical modeling. Modern hydrology and geomorphology are documented with a network of rain gauges and flow sensors, combined with biennial tripod-laser scans to measure rates of channel-head retreat (estimated at ~0.5m/yr). The two data sets are used to test a physically based numerical model of landscape evolution using a Monte Carlo calibration method.
Rengers, F.K., McGuire, L.A., Ebel, B.A., & Tucker, G.E. (2018) The evolution of a colluvial hollow to a fluvial channel with periodic steps following two transformational disturbances: A wildfire and a historic flood. Geomorphology, v. 309, p. 121-130, doi:10.1016/j.geomorph.2018.01.003.
Ebel, B.A., Rengers, F.K., Tucker, G. E. (2016) Observed and simulated hydrologic response for a first-order catchment during extreme rainfall three years after wildfire disturbance. Water Resources Research, v. 52, doi: 10.1002/2016WR019110.
Rengers, F.K., Lunacek, M., and Tucker, G.E. (2016) Application of an Evolutionary Algorithm for Parameter Optimization in a Gully Erosion Model. Environmental Modelling and Software, v. 80, p. 297-305.
Rengers, F.K., Tucker, G.E., and Mahan, S. (2016) Episodic bedrock erosion by gully-head migration, Colorado High Plains, USA. Earth Surface Processes and Landforms, doi:10.1002/esp.3929.
Rengers, F.K., Tucker, G.E., Moody, J.A., and Ebel, B. (2016) Illuminating wildfire erosion and deposition patterns with repeat terrestrial lidar. Journal of Geophysical Research, v. 121, no. 3, p. 588-608.
Ebel, B., Rengers, F.K., and Tucker, G.E. (2015) Aspect-Dependent Soil Saturation and Insight Into Debris-Flow Initiation During Extreme Rainfall in the Colorado Front Range. Geology, v. 43, no. 8, p. 659-662.
Rengers, F.K., Tucker, G.E. (2015) The evolution of gully headcut morphology: a case study using terrestrial laser scanning and hydrological monitoring. Earth Surface Processes and Landforms, v. 40, no. 10, doi: 10.1002/esp.3721.
Rengers, F.K., and Tucker, G.E. (2014) Analysis and modeling of gully headcut dynamics, North American High Plains. Journal of Geophysical Research, v. 119, p. 983-1003, doi:10.1002/2013JF002962.

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Art.1 l. The Participating Countries shall implement the International Energy Program as provided for in this Agreement through the International Energy Agency, described in Chapter IX, hereinafter referred to as the "Agency".
Art.1.2 2. The term "Participating Countries" means States to which this Agreement applies provisionally and States for which the Agreement has entered into and remains in force.
Art.1.3 3. The term "group" means the Participating Countries as a group.
Art.2 l. The Participating Countries shall establish a common emergency self-sufficiency in oil supplies. To this end, each Participating Country shall maintain emergency reserves sufficient to sustain consumption for at least 60 days with no net oil imports. Both consumption and net oil imports shall be reckoned at the average daily level of the previous calendar year.
Art.2.2 2. The Governing Board shall, acting by special majority, not later than 1st July, 1975, decide the date from which the emergency reserve commitment of each Participating Country shall, for the purpose of calculating its supply right referred to in Article 7, be deemed to be raised to a level of 90 days. Each Participating Country shall increase its actual level of emergency reserves to 90 days and shall endeavour to do so by the date so decided.
Art.2.3 3. The term "emergency reserve commitment" means the emergency reserves equivalent to 60 days of net oil imports as set out in paragraph 1 and, from the date to be decided according to paragraph 2, to 90 days of net oil imports as set out in paragraph 2.
Art.3.2 2. The Governing Board shall, acting by majority, not later than 1st July, 1975, decide the extent to which the emergency reserve commitment may be satisfied by the elements mentioned in paragraph 1.
Art.4.2 2. The Standing Group on Emergency Questions shall report to the Management Committee, which shall make proposals, as appropriate, to the Governing Board. The Governing Board may, acting by majority, adopt recommendations to Participating Countries.
Art.5.1 1. Each Participating Country shall at all times have ready a program of contingent oil demand restraint measures enabling it to reduce its rate of final consumption in accordance with Chapter IV.
Art.5.3 3. The Standing Group on Emergency Questions shall report to the Management Committee, which shall make proposals, as appropriate, to the Governing Board. The Governing Board may, acting by majority, adopt recommendations to Participating Countries.
Art.6 l. Each Participating Country shall take the necessary measures in order that allocation of oil will be carried out pursuant to this Chapter and Chapter IV.
Art.6.3 3. The Standing Group on Emergency Questions shall report to the Management Committee, which shall make proposals, as appropriate, to the Governing Board. The Governing Board may, acting by majority, adopt recommendations to Participating Countries.
Art.6.4 4. The Governing Board shall, acting by majority, decide promptly on the practical procedures for the allocation of oil and on the procedures and modalities for the participation of oil companies therein within the framework of this Agreement.
Art.7.1 1. When allocation of oil is carried out pursuant to Article 13, 14, or 15, each Participating Country shall have a supply right equal to its permissible consumption less its emergency reserve drawdown obligation.
Art.7.2 2. A Participating Country whose supply right exceeds the sum of its normal domestic production and actual net imports available during an emergency shall have an allocation right which entitles it to additional net imports equal to that excess.
Art.7.3 3. A Participating Country in which the sum of normal domestic production and actual net imports available during an emergency exceeds its supply right shall have an allocation obligation which requires it to supply, directly or indirectly, the quantity of oil equal to that excess to other Participating Countries. This would not preclude any Participating Country from maintaining exports of oil to non-participating countries.
Art.7.4 4. The term "permissible consumption" means the average daily rate of final consumption allowed when emergency demand restraint at the applicable level has been activated; possible further voluntary demand restraint by any Participating Country shall not affect its allocation right or obligation.
Art.7.5 5. The term "emergency reserve drawdown obligation" means the emergency reserve commitment of any Participating Country divided by the total emergency reserve commitment of the group and multiplied by the group supply shortfall.
Art.7.6 6. The term "group supply shortfall" means the shortfall for the group as measured by the aggregate permissible consumption for the group minus the daily rate of oil supplies available to the group during an emergency.
Art.7.8 8. The term "final consumption" means total domestic consumption of all finished petroleum products.
Art.8.2 2. The obligation to allocate this amount of oil is shared among the other Participating Countries on the basis of their final consumption during the base period.
Art.8.3 3. The Participating Countries may meet their allocation obligations by any measures of their own choosing, including demand restraint measures or use of emergency reserves.
Art.9.2 2. To calculate a Participating Country's allocation right, petroleum products normally imported by that Participating Country, whether from other Participating Countries or from non-participating countries, shall be expressed in crude oil equivalent and treated as though they were imports of crude oil to that Participating Country.
Art.9.3 3. Insofar as possible, normal channels of supply will be maintained as well as the normal supply proportions between crude oil and products and among different categories of crude oil and products.
Art.9.4 4. When allocation takes place, an objective of the Program shall be that available crude oil and products shall, insofar as possible, be shared within the refining and distributing industries as well as between refining and distributing companies in accordance with historical supply patterns.
Art.10.1 1. The objectives of the Program shall include ensuring fair treatment for all Participating Countries and basing the price for allocated oil on the price conditions prevailing for comparable commercial transactions.
Art.10.2 2. Questions relating to the price of oil allocated during an emergency shall be examined by the Standing Group on Emergency Questions.
Art.11.1 1. It is not an objective of the Program to seek to increase, in an emergency, the share of world oil supply that the group had under normal market conditions. Historical oil trade patterns should be preserved as far as is reasonable, and due account should be taken of the position of individual non-participating countries.
Art.11.2 2. In order to maintain the principles set out in paragraph l, the Management Committee shall make proposals, as appropriate, to the Governing Board, which, acting by majority, shall decide on such proposals.
Art.12.1x Whenever the group as a whole or any Participating Country sustains or can reasonably be expected to sustain a reduction in its oil supplies, the emergency measures, which are the mandatory demand restraint referred to in Chapter II and the allocation of available oil referred to in Chapter III, shall be activated in accordance with this Chapter.
Art.13.1x Whenever the group sustains or can reasonably be expected to sustain a reduction in the daily rate of its oil supplies at least equal to 7 per cent of the average daily rate of its final consumption during the base period, each Participating Country shall implement demand restraint measures sufficient to reduce its final consumption by an amount equal to 7 per cent of its final consumption during the base period, and allocation of available oil among the Participating Countries shall take place in accordance with Articles 7, 9, 10 and 11.
Art.14.1x Whenever the group sustains or can reasonably be expected to sustain a reduction in the daily rate of its oil supplies at least equal to 12 per cent of the average daily rate of its final consumption during the base period, each Participating Country shall implement demand restraint measures sufficient to reduce its final consumption by an amount equal to 10 per cent of its final consumption during the base period, and allocation of available oil among the Participating Countries shall take place in accordance with Articles 7, 9, 10 and 11.
Art.15.1x When cumulative daily emergency reserve drawdown obligations as defined in Article 7 have reached 50 per cent of emergency reserve commitments and a decision has been taken in accordance with Article 20, each Participating Country shall take the measures so decided, and allocation of available oil among the Participating Countries shall take place in accordance with Articles 7, 9, 10 and 11.
Art.16.1x When demand restraint is activated in accordance with this Chapter, a Participating Country may substitute for demand restraint measures use of emergency reserves held in excess of its emergency reserve commitment as provided in the Program.
Art.17.1 1. Whenever any Participating Country sustains or can reasonably be expected to sustain a reduction in the daily rate of its oil supplies which results in a reduction of the daily rate of its final consumption by an amount exceeding 7 per cent of the average daily rate of its final consumption during the base period, allocation of available oil to that Participating Country shall take place in accordance with Articles 8 to 11.
Art.17.2 2. Allocation of available oil shall also take place when the conditions in paragraph 1 are fulfilled in a major region of a Participating Country whose oil market is incompletely integrated. In this case, the allocation obligation of other Participating Countries shall be reduced by the theoretical allocation obligation of any other major region or regions of the Participating Country concerned.
Art.18.1 1. The term "base period" means the most recent four quarters with a delay of one-quarter necessary to collect information. While emergency measures are applied with regard to the group or to a Participating Country, the base period shall remain fixed.
Art.18.2 2. The Standing Group on Emergency Questions shall examine the base period set out in paragraph 1, taking into account in particular such factors as growth, seasonal variations in consumption and cyclical changes and shall, not later than 1st April, 1975, report to the Management Committee. The Management Committee shall make proposals, as appropriate, to the Governing Board, which, acting by majority, shall decide on these proposals not later than 1st July, 1975.
Art.19.3 3. Within 48 hours of receiving the Management Committee's report, the Governing Board shall meet to review the finding of the Secretariat in the light of that report. The activation of emergency measures shall be considered confirmed and Participating Countries shall implement such measures within 15 days of such confirmation unless the Governing Board, acting by special majority, decides within a further 48 hours not to activate the emergency measures, to activate them only in part or to fix another time limit for their implementation.
Art.19.4 4. If, according to the finding of the Secretariat, the conditions of more than one of the Articles 14, 13 and 17 are fulfilled, any decision not to activate emergency measures shall be taken separately for each Article and in the above order. If the conditions in Article 17 are fulfilled with regard to more than one Participating Country any decision not to activate allocation shall be taken separately with respect to each Country.
Art.19.5 5. Decisions pursuant to paragraphs 3 and 4 may at any time be reversed by the Governing Board, acting by majority.
Art.19.6 6. In making its finding under this Article, the Secretariat shall consult with oil companies to obtain their views regarding the situation and the appropriateness of the measures to be taken.
Art.19.7 7. An international advisory board from the oil industry shall be convened, not later than the activation of emergency measures, to assist the Agency in ensuring the effective operation of such measures.
Art.20.3 3. The Governing Board shall meet within 48 hours of receiving the Committee's report and proposal. The Governing Board shall review the finding of the Secretariat and the report of the Management Committee and shall within a further 48 hours, acting by special majority, decide on the measures required for meeting the necessities of the situation, including the increase in the level of mandatory demand restraint that may be necessary.
Art.21.1 1. Any Participating Country may request the Secretariat to make a finding under Article 19 or 20.
Art.21.4 4. The Governing Board shall meet within 48 hours of receiving the Management Committee's report. If it finds, acting by majority, that the conditions set out in Article 13, 14, 15 or 17 are fulfilled, emergency measures shall be activated accordingly.
Art.22.1x The Governing Board may at any time decide by unanimity to activate any appropriate emergency measures not provided for in this Agreement if the situation so requires.
Art.23.3 3. Within 48 hours of receiving the Committee's report, the Governing Board shall meet to review the finding of the Secretariat in the light of the report from the Management Committee. The deactivation of emergency measures or the applicable reduction of the demand restraint level shall be considered confirmed unless the Governing Board, acting by special majority, decides within a further 48 hours to maintain the emergency measures or to deactivate them only in part.
Art.23.5 5. Any Participating Country may request the Secretariat to make a finding under this Article.
Art.24.1x When emergency measures are in force, and the Secretariat has not made a finding under Article 23, the Governing Board, acting by special majority, may at any time decide to deactivate the measures either wholly or in part.
Art.26.1x The term "oil companies" means international companies, national companies, non-integrated companies and other entities which play a significant role in the international oil industry.
Art.27.1.j (j) Other subjects, as decided by the Governing Board, acting by unanimity.
Art.28.1x Information provided on a "non-proprietary basis" means information which does not constitute or relate to patents, trademarks, scientific or manufacturing processes or developments, individual sales, tax returns, customer lists or geological and geophysical information, including maps.
Art.29.2 2. The Management Committee shall review the report and make proposals to the Governing Board which, within 30 days of the submission of the report to the Management Committee, and acting by majority, shall take the decisions necessary for the establishment and efficient operation of the General Section.
Art.31.1 1. The Standing Group on the Oil Market shall on a continuing basis review the operation of the General Section.
Art.32.3 3. The Secretariat shall, on the basis of this information and other information available, continuously survey the supply of oil to and the consumption of oil within the group and each Participating Country.
Art.33.1x.f (f) Other subjects, as decided by the Governing Board, acting in unanimity.
Art.34.2 2. The Management Committee shall review the report and make proposals to the Governing Board which, within 30 days of the submission of the report to the Management Committee, and acting by majority, shall take the decisions necessary for the establishment and efficient operation of the Special Section.
Art.36.1x The Standing Group on Emergency Questions shall on a continuing basis review the operation of the Special Section and shall, as appropriate, report to the Management Committee. The Committee shall make proposals on appropriate changes to the Governing Board, which, acting by majority, shall decide on such proposals.
Art.38.2 2. The Management Committee shall consider the report and may make proposals on appropriate co-operative action to the Governing Board, which shall decide on such proposals.
Art.39.3 3. The Management Committee shall review such reports and make proposals on appropriate co-operative action to the Governing Board, which shall decide on such proposals.
Art.41.1 1. The Participating Countries are determined to reduce over the longer term their dependence on imported oil for meeting their total energy requirements.
Art.41.2 2. To this end, the Participating Countries will undertake national programs and promote the adoption of co-operative programs, including, as appropriate, the sharing of means and efforts, while concerning national policies, in the areas set out in Article 42.
Art.42.2 2. In examining the areas of co-operative action, the Standing Group shall take due account of ongoing activities elsewhere.
Art.42.3 3. Programs developed under paragraph 1 may be jointly financed. Such joint financing may take place in accordance with Article 64, paragraph 2.
Art.43.2 2. The Governing Board shall take into account possibilities for co-operation within a broader framework.
Art.45.1x To achieve the objectives set out in Article 44, the Participating Countries will give full consideration to the needs and interests of other oil consuming countries, particularly those of the developing countries.
Art.48.1 1. The Standing Group on Relations with Producer and other Consumer Countries will examine and report to the Management Committee on the matters described in this Chapter.
Art.48.2 2. The Management Committee may make proposals on appropriate co-operative action regarding these matters to the Governing Board, which shall decide on such proposals.
Art.49.2 2. The Governing Board or the Management Committee may, acting by majority, establish any other organ necessary for the implementation of the Program.
Art.49.3 3. The Agency shall have a Secretariat to assist the organs mentioned in paragraphs 1 and 2.
Art.50.1 1. The Governing Board shall be composed of one or more ministers or their delegates from each Participating Country.
Art.50.2 2. The Governing Board, acting by majority, shall adopt its own rules of procedure. Unless otherwise decided in the rules of procedure, these rules shall also apply to the Management Committee and the Standing Groups.
Art.50.3 3. The Governing Board, acting by majority, shall elect its Chairman and Vice-Chairmen.
Art.51.1 1. The Governing Board shall adopt decisions and make recommendations which are necessary for the proper functioning of the Program.
Art.51.3 3. The Governing Board, acting by majority, may delegate any of its functions to any other organ of the Agency.
Art.52.1 1. Subject to Article 61, paragraph 2, and Article 65, decisions adopted pursuant to this Agreement by the Governing Board or by any other organ by delegation from the Board shall be binding on the Participating Countries.
Art.52.2 2. Recommendations shall not be binding.
Art.53.1 1. The Management Committee shall be composed of one or more senior representatives of the Government of each Participating Country.
Art.53.2 2. The Management Committee shall carry out the functions assigned to it in this Agreement and any other function delegated to it by the Governing Board.
Art.53.3 3. The Management Committee may examine and make proposals to the Governing Board, as appropriate, on any matter within the scope of this Agreement.
Art.53.4 4. The Management Committee shall be convened upon the request of any Participating Country.
Art.53.5 5. The Management Committee, acting by majority, shall elect its Chairman and Vice-Chairmen.
Art.54.1 1. Each Standing Group shall be composed of one or more representatives of the Government of each Participating Country.
Art.54.2 2. The Management Committee, acting by majority, shall elect the Chairmen and Vice-Chairmen of the Standing Groups.
Art.55.3 3. The Standing Group may consult with oil companies on any matter within its competence.
Art.56.1 1. The Standing Group on the Oil Market shall carry out the functions assigned to it in Chapters V and VI and any other function delegated to it by the Governing Board.
Art.56.3 3. The Standing Group may consult with oil companies on any matter within its competence.
Art.57.1 1. The Standing Group on Long Term Co-operation shall carry out the functions assigned to it in Chapter VII and any other function delegated to it by the Governing Board.
Art.58.1 1. The Standing Group on Relations with Producer and other Consumer Countries shall carry out the functions assigned to it in Chapter VIII and any other function delegated to it by the Governing Board.
Art.58.3 3. The Standing Group may consult with oil companies on any matter within its competence.
Art.59.1 1. The Secretariat shall be composed of an Executive Director and such staff as is necessary.
Art.59.2 2. The Executive Director shall be appointed by the Governing Board.
Art.59.3 3. In the performance of their duties under this Agreement the Executive Director and the staff shall be responsible to and report to the organs of the Agency.
Art.59.4 4. The Governing Board, acting by majority, shall take all decisions necessary for the establishment and the functioning of the Secretariat.
Art.60 The Secretariat shall carry out the functions assigned to it in this Agreement and any other function assigned to it by the Governing Board.
Art.61.2.b (b) that they shall be binding only under certain conditions.
Art.62.1 1. Unanimity shall require all of the votes of the Participating Countries present and voting. Countries abstaining shall be considered as not voting.
Art.62.3 3. Majority shall require 60 per cent of the total combined voting weights and 50 per cent of the general voting weights cast.
Art.62.4.a.iv -decisions under Article 24 to deactivate the emergency measures referred to in Articles 13 and 14.
Art.62.4.b.iii -decisions under Article 24 to deactivate the emergency measures referred to in Article 17.
Art.62.5.bx -a Country withdraws from this Agreement in accordance with Article 68, paragraph 2, or Article 69, paragraph 2.
Art.62.6 6. The Governing Board shall review annually the number and distribution of voting weights specified in paragraph 2, and, on the basis of such review, acting by unanimity, shall decide whether such voting weights should be increased or decreased, or redistributed, or both, because a change in any Participating Country's share in total oil consumption has occurred or for any other reason.
Art.62.7 7. Any change in paragraph 2, 3 or 4 shall be based on the concepts underlying those paragraphs and paragraph 6.
Art.63 In order to achieve the objectives of the Program, the Agency may establish appropriate relations with non-participating countries, international organisations, whether governmental or non-governmental, other entities and individuals.
Art.64.2 2. Special expenses incurred in connection with special activities carried out pursuant to Article 65 shall be shared by the Participating Countries taking part in such special activities in such proportions as shall be determined by unanimous agreement between them.
Art.64.3 3. The Executive Director shall, in accordance with the financial regulations adopted by the Governing Board and not later than 1st October of each year, submit to the Governing Board a draft budget including personnel requirements. The Governing Board, acting by majority, shall adopt the budget.
Art.64.4 4. The Governing Board, acting by majority, shall take all other necessary decisions regarding the financial administration of the Agency.
Art.64.5 5. The financial year shall begin on 1st January and end on 31st December of each year. At the end of each financial year, revenues and expenditures shall be submitted to audit.
Art.65.2 2. For the implementation of such special activities, the Participating Countries concerned may agree upon voting procedures other than those provided for in Articles 61 and 62.
Art.66.1x Each Participating Country shall take the necessary measures, including any necessary legislative measures, to implement this Agreement and decisions taken by the Governing Board.
Art.67.1 1. Each Signatory State shall, not later than 1st May, 1975, notify the Government of Belgium that, having complied with its constitutional procedures, it consents to be bound by this Agreement.
Art.67.2 2. On the tenth day following the day on which at least six States holding at least 60 per cent of the combined voting weights mentioned in Article 62 have deposited a notification of consent to be bound or an instrument of accession, this Agreement shall enter into force for such States.
Art.67.3 3. For each Signatory State which deposits its notification thereafter, this Agreement shall enter into force on the tenth day following the day of deposit.
Art.67.4 4. The Governing Board, acting by majority, may upon request from any Signatory State decide to extend, with respect to that State, the time limit for notification beyond 1st May, 1975.
Art.68.1 1. Notwithstanding the provisions of Article 67, this Agreement shall be applied provisionally by all Signatory States, to the extent possible not inconsistent with their legislation, as from 18th November, 1974 following the first meeting of the Governing Board.
Art.68.2.cx -the time limit for notification of consent by the State concerned referred to in Article 67 expires.
Art.69.1 1. This Agreement shall remain in force for a period of ten years from the date of its entry into force and shall continue in force thereafter unless and until the Governing Board, acting by majority, decides on its termination.
Art.69.2 2. Any Participating Country may terminate the application of this Agreement for its part upon twelve months' written notice to the Government of Belgium to that effect, given not less than three years after the first day of the provisional application of this Agreement.
Art.70.1 1. Any State may, at the time of signature, notification of consent to be bound in accordance with Article 67, accession or at any later date, declare by notification addressed to the Government of Belgium that this Agreement shall apply to all or any of the territories for whose international relations it is responsible, or to any territories within its frontiers for whose oil supplies it is legally responsible.
Art.70.2 2. Any declaration made pursuant to paragraph 1 may, in respect of any territory mentioned in such declaration, be withdrawn in accordance with the provisions of Article 69, paragraph 2.
Art.71.1 1. This Agreement shall be open for accession by any Member of the Organisation for Economic Co-operation and Development which is able and willing to meet the requirements of the Program. The Governing Board, acting by majority, shall decide on any request for accession.
Art.71.2 2. This Agreement shall enter into force for any State whose request for accession has been granted on the tenth day following the deposit of its instrument of accession with the Government of Belgium, or on the date of entry into force of the Agreement pursuant to Article 67, paragraph 2, whichever is the later.
Art.71.3 3. Accession may take place on a provisional basis under the conditions set out in Article 68, subject to such time limits as the Governing Board, acting by majority, may fix for an acceding State to deposit its notification of consent to be bound.
Art.72.1 1. This Agreement shall be open for accession by the European Communities.
Art.73.1x This Agreement may at any time be amended by the Governing Board, acting by unanimity. Such amendment shall come into force in a manner determined by the Governing Board, acting by unanimity and making provision for Participating Countries to comply with their respective constitutional procedures.
Art.74.1x This Agreement shall be subject to a general review after 1st May, 1980.
Art.75.1x The Government of Belgium shall notify all Participating Countries of the deposit of each notification of consent to be bound in accordance with Article 67, and of each instrument of accession, of the entry into force of this Agreement or any amendment thereto, of any denunciation thereof, and of any other declaration or notification received.
Art.76.1x The original of this Agreement, of which the English, French and German texts are equally authentic, shall be deposited with the Government of Belgium, and a certified copy thereof shall be furnished to each other Participating Country by the Government of Belgium.


M.D. JAWAD A. SALAMEH, Defendant.
LISA P. LENIHAN, Magistrate Judge.
Upon review of Defendant's Motion to Vacate (ECF No. 12) this Court's Order dated June 4, 2015, which granted Plaintiff leave to proceed in forma pauperis, and Plaintiff's Response in Opposition thereto (ECF No. 15), the following Amended Memorandum Order is entered.
Defendant maintains that Plaintiff has accumulated at least "three strikes" within the meaning of 28 U.S.C. § 1915(g), and, as such, he cannot proceed in forma pauperis in this action. Plaintiff maintains that he has, at most, one strike.
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it was frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). In sum, under the three strikes rule, a prisoner who, on three or more prior occasions while incarcerated, has filed an action in a federal court that was dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, must be denied in forma pauperis status unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
While not all of the cases that Defendant relies on in support of his motion were dismissed as frivolous, malicious, and/or for failure to state a claim, Plaintiff has had at least three cases dismissed on that basis. Specifically, Wishnefsky v. Ouly, et al., 1:98-cv-907 (M.D. Pa. 1998) (dismissed pursuant to Fed.R.Civ.P. 12(b)(6) on October 4, 1999); Wishnefsky v. Carroll, et al., 4:99-cv-1494 (M.D. Pa. 1999) (dismissed pursuant to Fed.R.Civ.P. 12(b)(6) on December 3, 1999); and Wishnefsky v. Kurtz, et al., 4:99-cv-1889 (M.D. Pa. 1999) (dismissed pursuant to 28 U.S.C. § 1915A as being frivolous and for failure to state a claim on November 12, 1999). Furthermore, even though Plaintiff did not proceed in forma pauperis in all of the aforementioned cases, the Third Circuit Court of Appeals has held that "strikes may be accrued in actions or appeals regardless of whether the prisoner has prepaid the filing fee or is proceeding IFP." Byrd v. Shannon, 715 F.3d 117, 124 (3d Cir. 2013).
Plaintiff maintains that the dismissal in Wishnefsky v. Carroll, et al., 4:99-cv-1494 (M.D. Pa. 1999), does not count as a strike because it was a RICO (Racketeer Influenced and Corrupt Organizations Act) action, and not civil rights. However, this distinction is of no consequence within the meaning of § 1915(g). See 28 U.S.C. § 1915(g) ("In no event shall a prisoner bring a civil action... if the prisoner has, on 3 or more occasions, ... brought an action ... that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted....) (emphasis added). See also Bonner v. Bosworth, 451 F.Appx. 410, 412 (5th Cir. 2011) (affirming the district court's dismissal of plaintiff's complaint alleging RICO claims as frivolous and for failure to state a claim and stating that the district court's dismissal counts as a strike for purposes of 28 U.S.C. § 1915(g)); McPherson v. Curry, 253 F.3d 706 (5th Cir. 2001) (stating that district court's dismissal of plaintiff's claims brought under, inter alia, RICO as frivolous counts as a strike for purposes of § 1915(g)); Keys v. Pennsylvania, 2011 WL 766978, at n.17 (M.D. Pa. Jan. 19, 2011) (upon screening of complaint, recommending dismissal of action, which included RICO claims, and stating that it may constitute the plaintiff's third strike under § 1915(g) if the court dismisses the entire case), adopted by 2011 WL 766950 (M.D. Pa. Feb. 25, 2011) (dismissing complaint).
We agree with the District Court that Wishnefsky's complaint lacks merit, for essentially the same reasons. While it is true that the appeal raises interesting questions concerning whether the District Court's dismissal under section 1915A was improper in light of the earlier denial of the defendants' motions to dismiss, there is no need to address them here. Even if the District Court should not have dismissed the complaint under section 1915A, section 1915(e) requires a court to dismiss an action at any time if it is frivolous or fails to state a claim. We agree with the court's determination that Wishnefsky's complaint met these criteria and, thus, find that the court could properly have dismissed the complaint under section 1915(e). Although it is true that most courts have held that a complaint should not be dismissed under section 1915(e)(2)(B) unless it is clear that amendment would be futile, we find that the District Court did not err in failing to allow Wishnefsky to amend because we do not believe that amendment could rescue his complaint.
Wishnefsky v. Kurtz, et al., No. 00-3011 (3d Cir. May 22, 2001) (footnote omitted and emphasis contained within).
A plaintiff cannot avoid incurring a strike by simply voluntarily dismissing a claim. This rule would subvert the purposes of the PLRA: a plaintiff could guard against incurring strikes by filing an action with a bogus claim and then voluntarily dismissing that claim, thereby allowing inmates to easily avoid strikes even if all of their claims were meritless. And we will not assume that a voluntary dismissal with prejudice means that a case had merit.


Right of revocation for private consumers in the sense § 13 BGB and/or § 3 AGB private consumer in the sense § 13 BGB and/or § 3 of the AGB have in principle a legal right of revocation with extended consumer protection guidelines.
In accordance with § 355 BGB a private consumer has right of revocation with consumer contracts. By law a right of revocation is granted to each private consumer (in accordance with § 13 BGB) according to this regulation, then it is no longer bound to its declaration of intention directed toward the conclusion of the contract, if it recalled it within the prescribed period.
(1) the revocation does not have reason to contain and is in text form or by return of the thing within two weeks - when written proclamation right of revocation with conclusion of a contract by the entrepreneur/salesman - at the latest however after four weeks - on proclamation right of revocation after conclusion of a contract by the entrepreneur/salesman - opposite the entrepreneur/salesman to be explained; for period keeping the punctual sending off is sufficient.
(2) the period begins with the time, at which the private consumer a clearly arranged instruction over its right of revocation, which makes according to the requirements of assigned means of communication its rights clear for him, in text form communicated is, also the names and address of that, opposite which the revocation is to be explained, and a reference to the commencement of a term and the regulation of the paragraph 1 sentence 2 contains.
If the instruction is communicated after contract conclusion, the period amounts to deviating from paragraph 1 sentence 2 one month. If the contract is to be locked in writing, then the period begins to run not, before the private consumer also a contract, to which written request of the private consumer or a copy of the contract or the request is put at the disposal. If the commencement of a term is contentious, then the burden of proof meets the entrepreneur/salesman.
3) the right of revocation expires at the latest six months after contract conclusion. In the case of the supply of goods the period does not begin the day ago of its entrance with the receiver. Deviating from sentence 1 the right of revocation does not expire, if the private consumer were not instructed duly about his right of revocation.
(1) on the revocation and the return right, as far as another is not certain, the regulations over the legal resignation corresponding application. In BGB § the 286 exp. 3 determined period begins with the revocation or return explanation of the private consumer.
(2) the private consumer is obligated on practice of the right of revocation to the return, if the thing can be dispatched by package.
Cost and danger of the return bears with revocation and return of the entrepreneurs/salesmen. If a right of revocation exists, with an order up to an amount by 40 euros the regular costs of the return may be contractually imposed upon to the private consumer, unless the supplied commodity does not correspond to the ordered or if the private consumer did not furnish the return or a contractually agreed upon partial payment with a higher price of the thing at the time of the revocation yet. Otherwise the return for the private consumer is free.
(3) the private consumer has deviating from BGB § 346 exp. out 2 sentence 1 No. 3 indemnification according to value for a degradation resulted from the intended putting into use of the thing to carry, if him at the latest with contract conclusion in text form to this legal consequence and a possibility referred to avoid she.
This is not valid, if the degradation is to due exclusive to the examination of the thing. In all other respects the private consumer can avoid the indemnification according to value obligation, by taking the thing not like be property used and omitting everything, which impairs their value.
(4) BGB § 346 exp. 3 sentence 1 No. 3 does not apply, if the private consumer were duly instructed about his right of revocation or of it otherwise knowledge attained. As far as of the sales contract to consist the private consumer must fulfill obligations for the reimbursement of payments these within 30 days after sending off of a Widerrufserklärung.
(5) large requirements do not exist.
(6) from the return right excluded are goods: - Are from costumerspecifikation made and/or clearly to the personal needs cut and/or due to their condition for a return are not suitable and/or fast to spoil can and/or their expiration date one exceeded; - Audio and/or video recordings and/or software, if the supplied data media were unsealed by you; - Newspapers, magazines and/or pictorial; - Only at the time of the purchase customs or usable goods or call circuits.


LEE P. ADAMS, Claimant-Appellant,v.ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. Marshall O. Potter, Jr., of Vienna, Virginia, argued for claimant-appellant. Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, United States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims Judge Mary J. Schoelen United States Court of Appeals for the Federal Circuit 2008-7162 LEE P. ADAMS, Claimant-Appellant, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. Appeal from the United States Court of Appeals for Veterans Claims in 06-0095, Judge Mary J. Schoelen ___________________________ DECIDED: June 15, 2009 ___________________________ Before NEWMAN, SCHALL, and BRYSON, Circuit Judges. BRYSON, Circuit Judge. When a veteran files a claim for disability compensation, that claim is regarded as pending until it is acted upon by the Department of Veterans Affairs (“DVA”). In some instances in which a veteran files several claims, or in which the veteran’s claim is treated as constituting several separate claims, the DVA does not expressly act upon each of the claims. In that setting, it is necessary to decide whether the unaddressed claim is still pending or has been implicitly denied. The answer to that question is important because it can affect the effective date of the veteran’s claim and the 2008-7162 2 standard to be applied if the veteran seeks, at some later time, to reassert the claim that was not expressly resolved. In this case, the Court of Appeals for Veterans Claims (“the Veterans Court”) held that a claim filed by the veteran, Lee P. Adams, was implicitly denied by a Veterans Administration regional office in 1951 and by the Board of Veterans’ Appeals in 1952. The court rejected Mr. Adams’s contention that the claim was never denied and therefore was still pending when Mr. Adams sought to reopen it in 1989. Mr. Adams now argues that the Veterans Court applied an incorrect legal standard in deciding that the Veterans Administration implicitly denied his claim in 1951 and 1952. We hold that the Veterans Court applied the correct standard, and we therefore affirm. I Mr. Adams served on active duty in the U.S. Air Force for approximately one month, from January 15, 1951, to February 16, 1951. A medical examination conducted when he entered the service did not disclose any heart abnormalities. Eleven days later, however, Mr. Adams was admitted to an Air Force hospital for evaluation of a heart murmur that was detected during a physical examination performed upon his arrival at an Air Force base in San Antonio, Texas. Mr. Adams was hospitalized for about two weeks and diagnosed with inactive rheumatic valvulitis with deformity in the aortic valve. He was also suffering from a respiratory infection at the time. After Mr. Adams was released from the hospital, a military medical board determined that he had rheumatic heart disease that preexisted and was not aggravated by service. As a result of his heart condition, Mr. Adams was honorably discharged from the Air Force. 2008-7162 3 On April 23, 1951, Mr. Adams filed an application with the Veterans Administration seeking disability compensation for what he termed “rheumatic heart.” In support of that claim, Mr. Adams submitted a medical report prepared by a private physician whom Mr. Adams consulted when he became ill again shortly after his discharge. The physician diagnosed Mr. Adams with “rheumatic valvular heart disease, aortic insufficiency, and mitral insufficiency,” as well as a fresh respiratory infection. In a June 1951 decision, a Veterans Administration regional office denied Mr. Adams’s claim for benefits on the ground that he had no active symptoms of “rheumatic valvulitis or associated disease” during his service. Mr. Adams continued to complain of severe chills and fever, and on his physician’s recommendation he was hospitalized in a Veterans Administration facility from May to August 1951. A hospital report dated August 1951 listed two diagnoses: (1) “Rheumatic heart disease, active, aortic insufficiency, cardiac enlargement, myocardial disease, myocardial insufficiency,” and (2) “Subacute bacterial endocarditis, due to streptococcus mitis, secondary to [his rheumatic heart disease].” The regional office reviewed the hospital report but concluded that it did not contain any new and material evidence as to the issue of service connection for Mr. Adams’s heart condition. The regional office therefore again denied his claim for disability compensation. On October 11, 1951, Mr. Adams submitted an affidavit to the regional office in which he referred to the hospital report and the diagnoses of rheumatic heart disease and subacute bacterial endocarditis listed in the report. The regional office reconsidered his claim for disability compensation based on the affidavit but again determined that no change in the previous disallowance decision was warranted. 2008-7162 4 Mr. Adams appealed from the regional office’s decisions, contending that he was entitled to service connection for a “heart condition.” The Board of Veterans’ Appeals denied the appeal on March 4, 1952. The Board noted that it had considered the entire record, including the August 1951 hospital report and the October 1951 affidavit. The Board concluded that the “medical records do not disclose active rheumatic fever or other active cardiac pathology during service” and that Mr. Adams’s “rheumatic valvulitis” was incurred prior to and not aggravated during his military service. Nearly 40 years later, on February 2, 1989, Mr. Adams submitted a request to reopen his claim for disability compensation based on additional medical evidence. The Board conducted a hearing and determined that the issue for consideration was more appropriately characterized as a claim for “entitlement to service connection for endocarditis residuals.” After further proceedings before the regional office, the Board on February 7, 1997, awarded Mr. Adams service connection for “heart disease, claimed as residuals of endocarditis, including heart valve damage.” Specifically, the Board found that Mr. Adams had congenital heart disease with a bicuspid aortic valve when he entered the service. That preexisting condition predisposed him to bacterial endocarditis, which the Board found he incurred while in the service and which resulted in additional heart valve damage. The regional office ultimately assigned an effective date for the grant of service connection of January 19, 1989, the date on which Mr. Adams was admitted to a veterans hospital for treatment of a heart condition. See 38 C.F.R. § 3.157(b)(1). Dissatisfied with the effective date that was assigned to his award of benefits, Mr. Adams asked the Board to assign him an earlier effective date. The linchpin of Mr. 2008-7162 5 Adams’s argument was that his 1951 claim for endocarditis remained pending until the Board’s 1997 decision that awarded him service connection for heart disease; for that reason, Mr. Adams contended, he was entitled to an effective date of February 17, 1951, the day after his separation from service. See 38 U.S.C. § 5110(a), (b)(1). The Board rejected that argument, concluding that there was no pending claim for service connection for heart disease after the Board’s 1952 decision. Mr. Adams took an appeal to the Veterans Court, which accepted Mr. Adams’s argument that he had filed two distinct claims for service connection in 1951: a formal claim for rheumatic heart disease and an informal claim for endocarditis. Nonetheless, the court concluded that the regional office’s 1951 decision regarding Mr. Adams’s formal claim for rheumatic heart condition had implicitly denied Mr. Adams’s informal claim for service connection for endocarditis. The court therefore affirmed the Board’s denial of an effective date earlier than January 19, 1989, on the ground that Mr. Adams had no pending claim for service connection prior to that date. Mr. Adams appeals. II The rules for determining the effective date of a veteran’s claim for benefits are not in dispute. Generally, the effective date for an original claim is the date that the DVA receives the claim or the date that the entitlement to the benefit arose, whichever is later. 38 U.S.C. § 5110(a). If a veteran files a claim within one year after separation from service, the effective date of the claim is the day after the veteran’s discharge. Id. § 5110(b)(1). For an award based on a claim reopened after final adjudication, however, the effective date is typically the date that the DVA receives the request to reopen the claim (as opposed to the date of receipt of the original claim) or the date that 2008-7162 6 the entitlement to benefits arose, whichever is later. Id. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r); see generally Livesay v. Principi, 15 Vet. App. 165, 171-72 (2001). A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated. 38 C.F.R. § 3.160(c); see Richardson v. Nicholson, 20 Vet. App. 64, 72 n.8 (2006). A claim will also be considered to be pending if the DVA has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). If a claim is left pending, it can be addressed when a subsequent claim for the same disability is adjudicated by the DVA, in which case the effective date for any award of benefits will be the effective date applicable to the original claim. See Myers v. Principi, 16 Vet. App. 228, 236 (2002). The dispute in this case turns on whether Mr. Adams’s informal claim for service connection for endocarditis was denied by the regional office in October 1951. If the regional office considered and denied the endocarditis claim in 1951, that claim became final after the Board’s 1952 affirmance, and Mr. Adams is not entitled to an effective date of 1951 for his endocarditis claim. However, if the regional office did not adjudicate the endocarditis claim in 1951, that claim remained pending when Mr. Adams filed the renewed claim in 1987 that ultimately led to the award of benefits. In the latter case, Mr. Adams would be entitled to an effective date of 1951, the year in which he was discharged from service and in which he made his original claim for benefits. Applying our decision in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), and its own decision in Ingram v. Nicholson, 21 Vet. App. 232 (2007), the Veterans Court found that the 1951 endocarditis claim was implicitly denied as part of the action 2008-7162 7 the Veterans Administration took on his related claim for rheumatic heart disease. For that reason, the Veterans Court concluded that Mr. Adams was not entitled to a 1951 effective date for his claim. Because, with the exception of constitutional issues, we cannot review decisions of the Veterans Court with respect to factual issues or the application of law to fact, 38 U.S.C. § 7292(d)(2), the principal question before us is whether the Veterans Court applied the correct legal standard when it determined that the Veterans Administration implicitly denied the 1951 endocarditis claim. A The “implicit denial” rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the DVA did not expressly address that claim in its decision. One such circumstance is illustrated by our decision in Deshotel. Mr. Deshotel filed a claim in 1984 for disability compensation for the residuals of a head injury. The regional office issued a decision in 1985 granting service connection for head trauma. Although the regional office did not explicitly decide Mr. Deshotel’s claim for compensation based on a psychiatric disability, it noted that Mr. Deshotel’s physical examination showed no evidence of a psychiatric condition. In 1999, Mr. Deshotel sought disability compensation for a psychiatric condition secondary to his head trauma. The regional office treated that application as a request to reopen based on new and material evidence, and it awarded service connection for the psychiatric condition with an effective date of 1999. Mr. Deshotel appealed, seeking to have the date on which he filed his 1984 application declared the effective date for his compensation benefits. He argued that the DVA was required to treat his initial application as including an informal claim for a 2008-7162 8 psychiatric condition and that his psychiatric claim remained open because the regional office did not explicitly address that claim in its 1985 decision. We rejected that argument and ruled that the 1985 decision constituted a final adjudication of the psychiatric claim under the implicit denial rule. We explained: “Where the veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run.” 457 F.3d at 1261. In Ingram v. Nicholson, the Veterans Court elaborated on the test set forth in Deshotel for determining when a claim not expressly addressed by the DVA will be deemed to have been denied. Mr. Ingram filed a claim in 1986 for non-service-connected pension benefits after his lung was removed at a veterans hospital. The regional office denied that claim because it concluded that Mr. Ingram’s condition was not shown to be permanent. In 1992, Mr. Ingram filed a claim for benefits under 38 U.S.C. § 1151, which provides benefits to veterans injured by DVA hospital, medical, or surgical care. He asserted that he had developed an esophageal leak as a result of the lung-removal surgery. The Board awarded him compensation under section 1151, but it denied his request for an effective date earlier than 1992 because it concluded that his 1986 application for pension benefits did not also include a claim for benefits under section 1151. On appeal, the Veterans Court characterized the issue as whether the regional office implicitly denied any claim under section 1151 when it adjudicated his claim for pension benefits but did not explicitly address section 1151. Ingram, 21 Vet. App. at 2008-7162 9 243. Citing Deshotel, the Secretary argued that whenever multiple claims are filed at the same time an adjudication of one claim without mention of the other necessarily results in an adjudication of the second claim, regardless of the nature of the claims made or the type of benefits sought. The Veterans Court rejected that interpretation of Deshotel as overly broad and held that the regional office’s decision granting Mr. Ingram’s claim for pension benefits did not implicitly deny his section 1151 claim. The court held that, unlike the claims at issue in Deshotel, Mr. Ingram’s section 1151 claim was “in no way related to” his claim for non-service-connected pension; instead, each of his claims was “separately statutorily based and defined.” Ingram, 21 Vet. App. at 247. Moreover, while the regional office’s original decision denied Mr. Ingram’s claim for pension benefits because he did not establish that he was permanently disabled, an award of disability compensation under section 1151 does not require that a disability be permanent. Thus, the regional office’s explanation of its rejection of Mr. Ingram’s non-service-connection claim for pension benefits did not give Mr. Ingram reasonable notice that it was also rejecting his claim for disability compensation under section 1151. Consequently, the Veterans Court held that the regional office’s 1986 decision did not constitute an implicit denial of any pending section 1151 claim. Id. at 247-48, 255. B Mr. Adams does not take issue with the implicit denial rule applied in Deshotel and Ingram. Rather, he asserts that the Veterans Court misinterpreted those decisions and therefore used an incorrect legal standard when it applied the implied denial rule in this case. We disagree. Nothing in the Veterans Court’s decision in this case suggests 2008-7162 10 that it departed from the rationale of the implicit denial rule or that it failed to focus on the proper considerations bearing on the application of that rule in settings such as the one in this case. Mr. Adams contends that Deshotel stands for the proposition that “claims must have been made at the same time in order for one to be ‘deemed denied’ when the other was acted on.” Because the formal and informal claims in this case were not filed simultaneously, he argues that under Deshotel the informal claim, as a matter of law, cannot have been implicitly denied when the formal claim was denied. That argument is based on a basic flaw in reasoning. The veteran in Deshotel was considered to have filed more than one claim at the same time. In that setting, the court held that when the regional office acted on one of the claims, the second claim was deemed denied and the appeal period began to run. 457 F.3d at 1261. But in this instance, as in many others, the inverse of a true proposition is not necessarily true. See Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471, 480 (2d Cir. 2004). Thus, the fact that the claims were not filed at the same time does not mean that the implicit denial rule does not apply. Based on its prior decision in Ingram, the Veterans Court held that when a regional office decision “discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not ‘specifically’ deny that claim.” Adams v. Peake, No. 06-0095, slip op. at 5 (Vet. App. Feb. 20, 2008), quoting from Ingram, 21 Vet. App. at 255. That principle is consistent with the decision in Deshotel, and when applied to cases in which the DVA’s decision is clear but not expressed, it reflects an 2008-7162 11 appropriate balance between the interest in finality and the need to provide notice to veterans when their claims have been decided. In applying the implicit denial rule, the Veterans Court properly looked first to the language of the Veterans Administration’s 1951 and 1952 decisions to determine whether they provided sufficient information for a reasonable claimant to know that he would not be awarded benefits for his asserted disability. The court pointed out that the October 1951 decision denying Mr. Adams’s application for benefits specifically stated that the regional office had considered his affidavit, which expressly referred to both rheumatic heart disease and subacute bacterial endocarditis. Thus, although the 1951 decision expressly addressed only Mr. Adams’s formal claim for rheumatic heart disease, the court held that the decision alluded to the underlying claims in a manner that put Mr. Adams on notice that his informal claim for bacterial endocarditis based on the referenced affidavit was also denied. Moreover, as the court further explained, Mr. Adams’s appeal to the Board referred to his “heart condition,” a general characterization that encompassed both his rheumatic heart disease and bacterial endocarditis claims. And in its decision, the Board explicitly noted that it had reviewed Mr. Adams’s hospital reports and his affidavit, but found that those records “do not disclose active rheumatic fever or other active cardiac pathology during service” (emphasis added). Applying the Ingram standard, the court held that in those circumstances the regional office’s decisions in 1951 and the Board’s decision in 1952 “reasonably informed the appellant that a claim for any heart condition, including endocarditis, was denied.” Adams, slip op. at 6. 2008-7162 12 The facts of Deshotel are similar in this regard. In Deshotel, the regional office noted, when it granted service connection for a head injury, that the claimant’s medical examination showed no evidence of psychiatric symptomatology. Under those circumstances, a reasonable veteran would have known that his claim for disability compensation for a psychiatric condition was denied. Another factor bearing on whether an adjudication that specifically addresses one claim implicitly denies another is the relatedness of the claims. The conditions for which Mr. Adams sought service connection in 1951 are closely related. Rheumatic heart disease and bacterial endocarditis both affect heart valves, and bacterial endocarditis is frequently associated with rheumatic heart disease because the damage to heart valves caused by rheumatic valvulitis predisposes them to infection. Furthermore, the hospital report considered by the regional office and the Board explicitly referred to Mr. Adams’s bacterial endocarditis as “secondary” to his rheumatic heart disease. Once again, the facts of Deshotel are similar. The claimant sought service connection for two conditions that were closely related: a head injury, and a psychiatric disability resulting from that head injury. By contrast, the court in Ingram noted that the claimant’s section 1151 service connection claim was unrelated to his claim for non-service-connected pension benefits. The timing of the claims is also highly significant. As noted, in Deshotel we applied the implicit denial rule in a situation in which the veteran was deemed to have filed more than one claim at the same time and the regional office’s decision specifically adjudicated one claim but failed to address the other. 457 F.3d at 1261. In this case, 2008-7162 13 although Mr. Adams’s informal claim for bacterial endocarditis was filed roughly six months after he filed his initial claim for service connection for rheumatic heart, the two claims were closely associated both in time and in the manner in which they were presented to the Veterans Administration. When we addressed the specific case of claims filed at the same time in Deshotel, we did not suggest that the implicit denial rule is limited to situations in which the veteran files multiple claims in a single application. As the Veterans Court noted in Ingram, veterans benefits litigation typically proceeds in a piecemeal fashion. 21 Vet. App. at 253. The regional office attaches a single file number to all claims filed by a claimant, even if those claims are filed at different times. And claimants typically do not submit information in a single document, but “submit a continuous stream of evidence and correspondence” that may be pertinent to one or more claims. Id. at 254. That is particularly true in the case of informal claims for benefits, which can be based upon “any communication or action” indicating an intent to apply for benefits, even correspondence that does not come from the claimant himself. See 38 C.F.R. § 3.155(a); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (discussing the DVA’s duty to determine all potential claims raised by the evidence). Any interpretation of the implicit denial rule that rests on a requirement that the veteran’s claims be filed simultaneously in a single document ignores the fact that veterans can submit information pertaining to a single claim at different times, and that the regional office often adjudicates distinct claims that were filed at different times in a single decision. As the Veterans Court noted in Ingram and in this case, the key question in the implicit denial inquiry is whether it would be clear to a reasonable person 2008-7162 14 that the DVA’s action that expressly refers to one claim is intended to dispose of others as well. Mr. Adams contends that his case is distinguishable from Deshotel because in that case the veteran failed to appeal a decision by the regional office to the Board, whereas in this case, he timely appealed the regional office’s denial of his claim. As the Veterans Court explained, however, that distinction is meaningless. The implicit denial rule is not limited to cases in which the veteran failed to appeal a decision to the Board. Rather, the implicit denial rule applies where a regional office’s decision provides a veteran with reasonable notice that his claim for benefits was denied. Whether or not the regional office’s decision was appealed has no bearing on the reasonableness of the notice afforded by that decision. In sum, we reject Mr. Adams’s contention that the Veterans Court’s decision in this case departed from the proper standard for applying the implicit denial rule, as set forth and applied in Deshotel and Ingram. III Mr. Adams further contends that the Veterans Court’s application of the implicit denial rule violated his due process right to receive fair notice of the regional office’s decision denying his claim for benefits. We reject that argument. As discussed above, the implicit denial rule is, at bottom, a notice provision. In this case, the regional office’s decision put Mr. Adams on notice that his claim for service connection for bacterial endocarditis was denied. Because Mr. Adams received adequate notice of, and an opportunity to respond to, the regional office’s decision, he was not deprived of any due process rights that he asserts were implicated by his application for benefits. Each party shall bear its own costs for this appeal. 2008-7162 15 AFFIRMED.


Before SMITH, BARKSDALE and PARKER, Circuit Judges.
Defendant, Arcadia Financial ("Arcadia"), appeals the district court's denial of its motion for summary judgment. Arcadia also appeals the district court's grant of summary judgment in favor of plaintiff, Bank One Texas ("Bank One"). Because we find that Bank One had a perfected security interest at all times pertinent in this case, we affirm.
Bank One, a Texas corporation, sued Arcadia, a Minnesota corporation, seeking a declaratory judgment that it has a security interest with respect to certain inventory owned by Lone Star Used Cars ("Lone Star"). Arcadia filed a third-party complaint against Lone Star, a Texas limited partnership, and Francis Bradshaw, an individual who is the principal of Lone Star and a citizen of Texas.
Arcadia and Bank One filed cross motions for summary judgment. The district court granted Bank One's motion and held that Bank One's security interest was perfected and had priority over that of Arcadia. The district court denied Arcadia's motion for summary judgment, holding that Arcadia's claims for conversion and tortious interference failed as a matter of law. Arcadia appeals both of these rulings.
We review a district court's grant of summary judgment de novo, applying the same standard as the district court. See Fed. R. Civ. P. 56. The moving party is entitled to judgment as a matter of law when the record indicates no genuine issue as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Liberty Mut. Ins. Co. v. Canal Ins. Co., 177 F.3d 326, 331 (5th Cir. 1999).
We review a district court's decision that an absent party is not indispensable for an abuse of discretion. See Wheat v. Pfizer, Inc., 31 F.3d 340, 344 (5th Cir. 1994).
I. The Buyers of the Automobiles are not Indispensable Parties.
The district court did not abuse its discretion in retaining jurisdiction as the buyers of the automobiles were not indispensable parties under Fed. R. Civ. P. 19.
II. Lone Star's Purported Sale of the Automobiles did not cut off Bank One's Security Interest.
The record shows that Bank One has a perfected security interest in all present and future inventory of Lone Star to secure a line of credit for inventory or "floor plan" financing. Under Bank One's arrangement with Lone Star, it holds the certificates of title to all automobiles in Lone Star's inventory until Lone Star forwards money to Bank One following a purchase by a consumer. Arcadia was on notice of Bank One's security interest by virtue of Bank One's filing of a UCC-1 form as required to perfect its security interest.
Lone Star purported to sell nine used vehicles to consumers without informing Bank One of the transactions or forwarding the proceeds of the sale to Bank One. The alleged buyers were given physical possession of the vehicles and entered into loan agreements with Arcadia where the buyer makes monthly payments to Arcadia while Arcadia holds title to the automobiles as collateral. Arcadia seeks possession of the certificates of title to the nine automobiles from Bank One so it can record its liens to perfect its security interests. The rub in this case is that Bank One refuses to give up possession of the certificates of title to Arcadia.
The district court correctly found that, as between Bank One and Arcadia, the purported sales by Lone Star violated the Certificate of Title Act and were therefore void. See, e.g., Gallas v. Car Biz, Inc., 914 S.W.2d 592, 594-95 (Tex. App.--Dallas 1995, writ denied); Everett v. United States Fire Ins. Co., 653 S.W.2d 948, 950 (Tex App.--Ft. Worth 1983, no writ); Pfluger, 620 S.W.2d at 741-42. "An owner's purported transfer of an automobile which does not comply with the Texas Certificate of Title Act does not affect a third party's rights." United States v. 1977 Porsche Carrera, 946 F.2d 30, 34 (5th Cir. 1991). Therefore, since no legal sales were made to the purported buyers, they could not be considered "buyers in the ordinary course of business" as required to sever Bank One's security interest. We agree with the district court's interpretation of Texas law4 to wit: A third party's perfected security interest is not interrupted when a purported buyer attempts to purchase an automobile without receiving title as required to complete a sale under the Certificate of Title Act.
III. Arcadia's Damage Claims Were Properly Dismissed as a Matter of Law.
We also agree with the district court's determination that because no sales were made under Texas law, Arcadia's claims for conversion and tortious interference fail as a matter of law.
Arcadia also filed a third party complaint against Lone Star for breach of contract and against Francis Bradshaw for breach of a guaranty agreement. The district court severed this action from the case on appeal. The parties to the third-party action eventually filed an agreed summary judgment disposing of the case and granting Arcadia damages and attorney's fees. Advancing a theory of election of remedies and judicial estoppel, Bank One argues that this judgment is an additional reason we can affirm the district court. Because we affirm the district court's ruling based on the merits, we do not speak to the soundness (or lack thereof) of Bank One's argument. Furthermore, we deny as moot Bank One's motion that we take judicial notice of the district court's entry of the agreed summary judgment between Arcadia and Lone Star.
See Tex. Bus. & Com. Code Ann. § 1.201(9) (West 1994) ("'Buyer in the ordinary course of business' means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker."). " [A] buyer in the ordinary course of business . . . takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence." Tex. Bus. & Com. Code Ann. § 9.307(a) (West 1994).
This provision creates no conflict between the Business and Commerce Code and the Certificate of Title Act that would trigger the pre-emption provision in the Certificate of Title Act. See Tex. Transp. Code Ann. § 501.005(a) (West 1999) ("Chapters 1-9, Business & Commerce Code, control over conflicting provisions of this chapter."); see also Pfluger, 620 S.W.2d 739, 741 (Tex. Civ. App.--Dallas 1981, writ ref'd n.r.e.) (concluding that the two statutes "may reasonably be construed so as to give effect to both").
Because the district court properly had diversity jurisdiction, it was obligated to determine how the Texas Supreme Court would apply Texas law on this issue. See, e.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).