Before BARKSDALE and BENAVIDES, Circuit Judges, and VELA* , District Judge.
Michael A. Warren appeals the dismissal of his habeas corpus petition filed in the district court for the Western District of Texas pursuant to 28 U.S.C. § 2241(c) (3). Warren maintains that the Federal Bureau of Prisons (BOP) violated the Constitution's prohibition of ex post facto legislation by applying its regulations to him retroactively, thereby increasing the punishment for his offense. He also argues that the BOP abused its discretion under 28 U.S.C. § 3621(e) by promulgating regulations that effectively render all prisoners who receive a sentence enhancement for possession of a dangerous weapon ineligible for early release following completion of a residential Drug Abuse Program (DAP). Finally, Warren contends that the district court violated his due process rights in failing to make de novo findings of fact with respect to the preliminary sentencing report that served as the foundation for his sentence enhancement. We ultimately find no merit in Warren's arguments and, therefore, AFFIRM the ruling of the district court.
In September 1995, Warren pled guilty to conspiracy to distribute and distribution of cocaine base and heroin as defined in 21 U.S.C. § 846; he was sentenced to 72 months of imprisonment, followed by five years of supervised release. The district court enhanced Warren's sentence by two points pursuant to section 2D1.1(b) (1) of the Sentencing Guidelines based on information in Warren's preliminary sentencing report that he had access to a dangerous weapon during the course of the conspiracy.
In February 1996, Warren enrolled in a DAP with the approval of officials at the federal prison in Bastrop. Section 3621(e) allows prisoners convicted of "nonviolent" offenses who complete a DAP to apply for sentence reductions of up to one year at the discretion of the BOP director. See 18 U.S.C. § 3621(e) (2) (b). On February 8, 1996, prison officials advised Warren that he was ineligible for early release under section 3621 because of his sentence enhancement. In that same month, Warren filed a motion to vacate his sentence, specifically the enhancement, under 28 U.S.C. § 2255. The district court for the Northern District of Texas denied that motion, adopting a magistrate judge's finding of sufficient evidence to support the two-point enhancement.
After successfully completing the DAP in December 1996, Warren requested reconsideration for early release pursuant to section 3621(e) of title 28. Because Warren's sentence had been enhanced for possession of a weapon, the BOP again determined that he had committed a "crime of violence" and was thus ineligible for early release under section 3621(e).
In March 1999, Warren filed this habeas corpus petition pro se in the district court for the Western District of Texas. After the Government replied to Warren's petition, Warren moved for summary judgment on the pleadings on August 19, 1999.1 On January 14, 2000, the magistrate judge filed a Report and Recommendation recommending that the district court deny Warren's petition. Warren objected to the report's findings in a timely manner. On January 23, 2000, the district court issued a Final Judgment and Order adopting the magistrate's report and denying Warren's petition for relief.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. When reviewing the denial of a habeas corpus petition, we review the district court's determinations of law de novo and its findings of fact for clear error. See Venegas v. Henman, 126 F.3d 760 (5th Cir. 1997), cert. denied, 523 U.S. 1108 (1998). Since Warren claims the right to early release under section 3621(e), or at least consideration for such release, we begin with a detailed review of that legislation and the BOP's regulations interpreting it.
Section 3621(e) (2) (B), effective September 13, 1994, allows prisoners convicted of "nonviolent" offenses who complete a DAP to apply for a sentence reduction of up to one year at the discretion of the BOP director. See 18 U.S.C. § 3621(e) (2) (b). The statute does not define a nonviolent offense. Effective May 25, 1995, the BOP promulgated regulation 550.58 that defined "nonviolent offense" by identifying as not eligible for early release those inmates whose current offense "is determined to be a crime of violence as defined in 18 U.S.C. § 924(c) (3)."2 28 C.F.R. § 550.58 (1995). Also effective May 25, 1995, the BOP issued Program Statement 5330.10 to outline the qualifications for early release under section 3621(e) and regulation 550.58; the language of the program statement essentially mirrors that in the regulation. See U.S. Dept. of Justice, Bureau of Prisons Program Statement No. 5330.10 (May 25, 1995).
In July 1995, the BOP released Program Statement 5162.02, to elaborate the meaning of crime of violence in the context of section 3621. That version of the Program Statement listed 21 U.S.C. § 846, Warren's offense of conviction, as an offense that could be considered a crime of violence if the facts surrounding the offense demonstrate "substantial risk" that force could have been used during its commission. See U.S. Dept. of Justice, Bureau of Prisons Program Statement No. 5162.02 (July 24, 1995). This was the regulatory framework in place in February 1996 when the BOP first denied Warren consideration for early release under section 3621(e).
On April 23, 1996, the BOP clarified its interpretation of crime of violence in Change Notice CN-01 to Program Statement 5162.02. As an example of a prisoner ineligible for early release because of the commission of a crime of violence, the Change Notice described a defendant serving a sentence for drug conspiracy (21 U.S.C. § 846) that had been enhanced for possession of a firearm. See U.S. Dept of Justice, Change Notice CN-01 to Program Statement 5162.02 (April 23, 1996). By May 17, 1996, the BOP had modified 28 C.F.R § 550.58, explaining that "as an exerciseof the discretion vested in the Director of the Federal Bureau of Prisons," several categories of prisoners would not be considered for early release. See 28 C.F.R. § 550.58 (1996). The regulation then defined as one such category, "inmates whose current offense is a felony . . . that involved the carrying, possession, or use of a firearm or other dangerous weapon." Id. at (a) (1) (vi) (B). Though the BOP has made additional clarifications to regulation 550.58 since May 1996, those changes are not relevant to the present appeal.
Imposition of punishment more severe than that assigned when a criminal act occurred is a violation of the Constitution's prohibitions on ex post facto laws. See U.S. Const. art. I, §9, cl. 3; Collins v. Youngblood, 497 U.S. 37, 42 (1990). In this regard, the Supreme Court has recognized that legislative modifications to early release provisions or parole standards may violate the prohibition on ex post facto legislation if applied retroactively. See, e.g., Lynce v. Mathis, 519 U.S. 433, 117 S. Ct. 891, 898, 137 L. Ed. 2d 63 (1997) (finding violation of ex post facto principles when statute made entire class of prisoners ineligible for early release); Weaver v. Graham, 450 U.S. 24, 33-35 (1981). Invoking these cases, Warren argues that the BOP violated the ex post facto doctrine by retroactively applying its regulations to deny him (and others subject to a sentence enhancement for possession of a firearm) consideration for early release under section 3621(e).
For an ex post facto violation to occur, two elements must be present: (1) a law must be retrospective, that is, it must apply to events occurring before its enactment, and (2) the new law must create a sufficient risk of increasing the punishment attached to the defendant's crimes. See California Dept. of Corrections v. Morales, 514 U.S. 499, 509, 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995); Weaver, 450 U.S. at 29. In evaluating an alleged violation of the ex post facto doctrine, the court must rigorously analyze the level of risk that an inmate's prison stay will be longer because of a change in the law that applies retroactively. See Garner v. Jones, 120 S. Ct. 1362, 1370 (2000); see also Morales, 514 U.S. at 506-07 (" [T]he focus of the ex post facto inquiry is not on whether a legislative change produces some sort of 'disadvantage' . . . but on whether any such change . . . increases the penalty by which a crime is punishable."); Lynce, 519 U.S. at 444 (ex post facto analysis should focus on "the effect of the law on the inmate's sentence").
Warren's complaints stem solely from administrative actions of the BOP taken in accordance with the broad discretion that Congress granted that agency in section 3621. Section 3621(e) has not changed since Warren committed his offense in 1995; nor has Congress passed any additional legislation that affects Warren's eligibility for early release under section 3621. This court has previously suggested that the retroactive application of BOP regulations reflecting the agency's "reasonable exercise of properly delegated discretion" does not violate the ex post facto doctrine. See Wottlin v. Fleming, 136 F.3d 1032, 1037 (5th Cir. 1998). Yet we need not rely on Wottlin today, for Warren fails to specify an administrative regulatory change that placed him at risk of increased punishment.
Initially, we point out that Warren does not identify a single rule change or clarification that took place between the time that he committed his offense in the summer/fall of 1995 and the point at which the BOP first denied him consideration for early release on February 8, 1996. Nevertheless, one response to Warren's administrative appeals did rely on the April 23, 1996 change notice to P.S. 5162.02 to justifyWarren's ineligibility. Assuming that this modification applied to Warren retroactively, and that a BOP Program Statement is a "law" subject to ex post facto review,3 we hold that the April 23, 1996 change did not place Warren at risk of increased punishment.
Indeed, the regulatory framework in effect from July 1995 to April 1996 listed Warren's offense - 21 U.S.C. § 846 - as potentially ineligible for early release consideration under section 3621(e) depending on the facts surrounding the commission of the offense. See U.S. Dept. of Justice, Program Statement 5330.10 (May 25, 1995); U.S. Dept. of Justice, Program Statement 5162.02 (July 24, 1995). Change Notice-01 to P.S. 5162.02 merely "clarified" the law in effect by listing as an example of inmates ineligible for early release under section 3621(e) those inmates serving sentences under 21 U.S.C. § 846 enhanced for possession of a weapon. Although Warren's case may not have been explicitly excluded under the Program Statements in effect in the fall of 1995, the BOP could have refused to consider him for early release in accordance with those guidelines. Merely clarifying that cases like Warren's should not be considered for early release under section 3621 is not a "change" that places Warren at risk of increased punishment. As a consequence, his claim that the BOP violated the ex post facto clause in denying him consideration for early release is not tenable.
Warren also argues that section 3621(e) (2) (B) mandates that he receive early release, or at least consideration for early release. Warren's argument takes two forms. First, relying on Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), Warren contends that the BOP abused its discretion under section 3621 by categorically denying him early release consideration after he completed the DAP program. Next, Warren argues that the BOP abused its discretion by relying on a sentence enhancement to determine that he had committed a crime of violence and thus was ineligible for early release consideration. Both of Warren's arguments are controlled by prior decisions of this court.
Realizing that his present inability to receive early release consideration flows from the sentence enhancement and the preliminary sentencing report on which that enhancement was based, Warren challenges the propriety of that report. Initially, he asserts that the BOP abused its discretion in relying on "false, inaccurate, and unreliable information." Warren also contends that the district court deprived him of procedural due process by failing to make de novo findings on specific issues during the habeas petition process. Neither argument has merit.
To the extent that Warren challenges the reasonableness of the BOP's reliance on information contained in preliminary sentencing reports to deny early release consideration, his claim is foreclosed by Venegas and our reasoning in the previous paragraph. See Venegas, 126 F.3d at 765. To the extent that Warren is challenging the factual correctness of the sentence enhancement, he has chosen the wrong mechanism for collateral attack. Section 2255 provides the primary means of collateral attack of a federal sentence. See Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Section 2241, on the other hand, is the proper habeas remedy for challenging the execution of a sentence. See id.; United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992). Warren's section 2255 motion to vacate sentence has been heard and denied; he is not entitled to relitigate that issue under the heading of section 2241. See Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980); Lane v. Hanberry, 601 F.2d 805, 806 (5th Cir. 1979).
Warren also argues that the district court should have reviewed the entire record de novo and made findings of fact independent of those made by the magistrate in his report. He contends that this failure deprived him of procedural due process.5 Because Warren objected to the findings of the magistrate judge's report in a timely fashion, the district court was required to perform a de novo review of the petition. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S. Ct. 3243, 106 L. Ed. 2d 590 (1989). The district court specified in its final judgment that it had reviewed the entire record. Absent evidence to the contrary, this court is compelled to believe that the district court performed this duty. See Lara v. Johnson, 141 F.3d 239, 242 (5th Cir. 1998);Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993). Warren seems to suggest that the absence of new factual findings is evidence that a de novo review was not conducted. Yet, this court has held that new findings of fact are not necessary to demonstrate that de novo review took place. See Koetting, 995 F.2d at 40.
Having reviewed Warren's claims and found no basis for overturning the BOP's decision to deny him consideration for early release under section 3621(e), we AFFIRM the decision of the district court.
On November 11, 1999, Warren filed a motion with this court seeking a writ of mandamus instructing the district court to grant summary judgment. This court denied Warren's motion without prejudice, instructing him to re-file in 60 days if the district court had not replied to his motion.
Section 924(c) (3) defines a crime of violence as having "as an element the use, attempted use, or threatened use of physical force against the person or property of another," or as by its nature, involving "a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c) (3) (2000).
The Supreme Court has described the BOP's Program Statements as "internal agency guidelines" that, unlike BOP regulations, are not subject to "the rigors of the Administrative Procedure Act." Reno v. Koray, 515 U.S. 50, 61 (1995). We state no opinion as to whether such "internal agency guidelines," at least those passed by the BOP to guide the exercise of its discretion under section 3621, are "laws" that can produce sufficient risk of increased punishment to fail under ex post facto review.
Warren points to decisions from other circuits holding that the BOP's interpretation of section 3621 conflicts with unambiguous language in the statute requiring "conviction" of a violent crime, and thus constitutes an abuse of discretion. See, e.g., Byrd v. Hasty, 142 F.3d 1395, 1398 (11th Cir. 1998); Downey v. Crabtree, 100 F.3d 662, 668 (9th Cir. 1996). In evaluating the BOP's interpretation of "nonviolent" in section 3621, these circuits ignore the fact that section 3621 grants the BOP unfettered discretion to determine which "nonviolent" inmates it will consider for early release. As we noted in Venegas, nothing in section 3621 prevents the BOP from exercising that discretion categorically, electing not to consider for early release any prisoner whose sentence has been enhanced for possession of a dangerous weapon. See Venegas, 126 F.3d 163-64. At any rate, these contrary decisions on which Warren relies are not the law in this circuit. It is well established that one panel of this circuit may not overrule the prior decisions of another panel. See, e.g., United States v. Taylor, 933 F.2d 307, 319 (5th Cir. 1991).
Warren also argues that the magistrate's report was untimely under 28 U.S.C. 636(b). This argument is frivolous. Section 636 does not impose any deadlines for filing Reports and Recommendations on habeas corpus petitions. Moreover, this court has already reviewed the conduct of the magistrate when it dismissed Warren's application for a writ of mandamus without prejudice.


This Petition for Review from the December 15, 2014 Finding & Dismissal of the Commissioner acting for the Sixth District was heard May 29, 2015 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Randy L. Cohen and Stephen M. Morelli.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding & Dismissal which determined that his bid for additional spine surgery or a spinal cord stimulator would not be deemed reasonable or necessary medical care responsive to his compensable injuries.1 The claimant also contests the recommendation that he undergo pain management treatment at the Rosomoff Clinic in Florida. The claimant, who is a self-represented party, seeks to add additional evidence to the record to support his claim, and argues that the trial commissioner failed to properly credit evidence from his treating physicians supportive of his claim. After reviewing the claimant’s arguments we are not persuaded the trial commissioner’s decision is legally erroneous. The commissioner’s decision is grounded in probative evidence he deemed reliable and we may not second-guess such a decision on appeal. We affirm the Finding & Dismissal.
We note that this claimant was injured many years ago and the circumstances of that injury were addressed by this tribunal in our opinion in Jodlowski v. Stanley Works, 5627 CRB-6-11-2 (March 13, 2012). Subsequent to that opinion the claimant continued treating with Dr. Jonathan Kost for pain management treatment related to the 2004 compensable injury. During the course of that treatment the claimant sought to either obtain lumbar spine surgery or a spinal cord stimulator to address his chronic pain issues. On January 29, 2014 an order was issued directing the respondents to hold a deposition of the claimant within 30 days and to schedule a respondent’s medical examination within 90 days. Subsequent to those events on April 3, 2014 the respondents filed a Form 43 contesting further treatment based on the opinions of their expert, Dr. Jerrold Kaplan. The claimant filed an objection and sought a formal hearing, which was held on July 23, 2014. The trial commissioner held the record open until 30 days after the transcript was made available to the parties to enable them to respond to the issues presented at the hearing. The record closed on September 2, 2014.
In his decision, dated December 15, 2014, the trial commissioner noted the Finding and Award of January 7, 2011 and further noted that decision found that pain management treatment with Dr. Kost was reasonable and necessary and ordered the respondents to continue to authorize the treatment with Dr. Kost. The commissioner noted that the claimant had treated with Dr. Kost since 2006 and that this treater indicated that despite his treatment, the claimant continues to complain of pain to multiple parts of his body. On December 14, 2012, Dr. Kost discussed with the claimant the possibility of a spinal cord stimulator or a surgical consult to address his continued pain complaints.
Dr. Kost referred the claimant to Dr. Andrew Wakefield, a neurosurgeon, for an examination.2 On September 19, 2013 the claimant presented at Dr. Wakefield’s office for his examination and the report subsequent to this examination concluded that the claimant was not a surgical candidate and did not find objective evidence to explain the level of his complaints. On February 20, 2014, the claimant underwent EMG testing to determine if he was a candidate for a spinal cord stimulator. The results were normal. On March 27, 2014, at the request of the respondents, the claimant was examined and evaluated by Dr. Jerrold Kaplan. His report opined in relevant part that the claimant’s pain management was not curative and he did not recommend a spinal cord stimulator. He did however recommend the claimant undergo a comprehensive pain management program at the Rosomoff Center in Florida. On April 18, 2014, Dr. Kost advised that he concurred with Dr. Kaplan’s opinion as to a spinal cord stimulator and as to the claimant treating at Rosomoff.
On April 30, 2014, the claimant was evaluated by Dr. Joseph Aferzon. He opined in relevant part that the claimant should undergo a discogram and recommended a fusion at L5-S1 and possibly at L4-5.3 On June 16, 2014, Dr. Kost recommended that the claimant delay treatment at Rosomoff pending a discogram and fusion. The claimant argued that the commissioner should authorize medical treatment which includes ongoing pain management, a discogram, and a lumbar fusion. The respondents, relying on the opinions of Dr. Kaplan and Dr. Wakefield, argued the claimant has not sustained his burden of proof as to that course of treatment being reasonable and necessary.
Based on the foregoing factual foundation, the trial commissioner concluded the opinions of Dr. Kaplan and Dr. Wakefield were more persuasive than those set forth by Dr. Kost and Dr. Aferzon on the claimant’s need for a spinal cord stimulator and lumbar surgery. The commissioner also determined the opinion of Dr. Kaplan, on the claimant undergoing treatment at Rosomoff, was more persuasive then Dr. Kost’s opinion on the proposed treatment. The commissioner finally determined that Dr. Kost’s continued pain management treatment was reasonable and necessary.
The claimant then appealed that decision and filed a Motion To Submit Additional Evidence. The claimant believes that the totality of the evidence supports his opinion that lumbar surgery was necessary to address his chronic pain issues. He said that the objective evidence demonstrated that his lumbar spine was like “a rim with no tires.” He believes the additional evidence he did not submit at the formal hearing substantiates the opinions of Dr. Aferzon and Dr. Kost. The claimant further believes that due to the inconsistency between the opinions of Dr. Aferzon, Dr. Wakefield and Dr. Kaplan the trial commissioner was obligated under § 31-294f C.G.S. to order a commissioner’s examination. He further argues that he does not believe treatment at Rosomoff would be beneficial. The respondents challenge this reasoning as they do not believe the claimant has established good cause to admit additional evidence. They also believe the trial commissioner had the discretion to choose which physician’s opinion he deemed more persuasive and his determination to rely on the opinions of Dr. Kaplan and Dr. Wakefield cannot be disturbed on appeal. They do not believe the trial commissioner was obligated to order a commissioner’s examination and believe the record supports the Finding & Dismissal.
Prior to considering the merits of the appeal we must consider the pending Motion To Submit Additional Evidence. The claimant seeks to admit documentation concerning MRI’s performed in September 2004 as well as medical notes supportive of lumbar surgery authored by Dr. Aferzon and Dr. Jeffrey Bash. The respondents have objected to the admission of these records, asserting that pursuant to Diaz v. Jaime Pineda, a/k/a Jamie Pineda d/b/a J. P. Landscaping Company, 117 Conn. App. 619 (2009) the claimant lacks sufficient justification for the admission of this material. We concur in this assessment and sustain the respondents’ objection.
In Baker v. HUG Excavating, Inc., 5443 CRB-7-09-3 (March 5, 2010) we considered a similar request and denied the claimant’s motion.
As the Appellate Court pointed out in Mankus v. Mankus, 107 Conn. App. 585 (2008), when a litigant seeks pursuant to Admin. Reg. § 31-301-9 to present previously unconsidered evidence directly to this panel the moving party must establish good cause. Thus, in order to request the board to review additional evidence, the movant must include in the motion 1) the nature of the evidence, (2) the basis of the claim that the evidence is material and (3) the reason why it was not presented to the commissioner. Id., 596.
We have reviewed the transcript of the formal hearing and find no discussion to the effect that the evidence the claimant presented at that time was incomplete, and that he anticipated presenting additional evidence.4 Therefore, we believe admission of this evidence at this juncture would be “... an effort to try the case in an inappropriate piecemeal fashion. Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001).” Grant v. Siemens Westinghouse Power Co., 5292 CRB-4-07-11 (October 28, 2008). We therefore deny the Motion to Submit Additional Evidence.
On the merits the claimant’s arguments focus on the decision not to order a commissioner’s examination and the trial commissioner’s evaluation of the evidence presented. We deal first with the issue as to the fact no commissioner’s examination was ordered in this matter. The statute5 does not mandate that when there is conflicting evidence presented to a trial commissioner that a trial commissioner is legally obligated to order a commissioner’s examination. We have reviewed the transcript of the formal hearing and note that the trial commissioner stated that after reviewing the evidence, “I may appoint a Commissioner’s exam.” July 23, 2014 Transcript, p.10. The commissioner did not make any affirmative representation that he would order such an examination and the claimant should not have proceeded under the assumption such an examination would be ordered. The trial commissioner was not under any legal obligation to order a commissioner’s examination and if he believed the record was sufficient to rule on this case without such evidence, he was legally able to proceed in that manner.
We then must address the claimant’s contention that the trial commissioner reached the wrong decision after weighing the evidence that was in the record. As the claimant views the circumstances he presented a compelling argument in favor of authorizing lumbar surgery and the trial commissioner erred by not relying on this evidence. We do note that the claimant did present probative evidence supportive of this position from Dr. Aferzon and Dr. Kost, which had the trial commissioner credited as more persuasive than the respondents’ evidence, would have supported authorizing the surgery. However, the evidence the trial commissioner did credit as persuasive from Dr. Wakefield’s office and from Dr. Kaplan was also probative evidence and did opine that surgery was not recommended for the claimant. We must respect the determination of a trial commissioner as to what medical evidence in a contested case he or she finds most persuasive. Hadden v. Capitol Region Education Council, 5843 CRB-1-13-5 (May 20, 2014), appeal pending, AC 36913, see also Solonick v. Electric Boat Corporation, 5170 CRB-2-06-12 (January 9, 2008), aff’d, 111 Conn. App. 793 (2008). We find our precedent in Hadden governs our resolution of this matter, especially as the appropriate modality of treatment for an injured worker is a determination reserved to the trial commissioner, Cervero v. Mory’s Association, Inc., 5357 CRB-3-08-6 (May 19, 2009), aff’d, 122 Conn. App. 82 (2010), cert. denied, 298 Conn. 908 (2010).
Essentially this matter was a dispute between physicians as to the optimal manner to treat the claimant. The claimant and the respondents presented different alternatives to the trial commissioner and the trial commissioner found the opinions of the respondents’ witnesses more persuasive. We cannot, as an appellate panel, second-guess the decision of the trial commissioner under this scenario.
Therefore, we affirm the Finding & Dismissal.
Sec. 31-294f. Medical examination of injured employee. Medical reports. (a) An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner. The examination shall be performed to determine the nature of the injury and the incapacity resulting from the injury. The physician or surgeon shall be selected by the employer from an approved list of physicians and surgeons prepared by the chairman of the Workers’ Compensation Commission and shall be paid by the employer. At any examination requested by the employer or directed by the commissioner under this section, the injured employee shall be allowed to have in attendance any reputable practicing physician or surgeon that the employee obtains and pays for himself. The employee shall submit to all other physical examinations as required by this chapter. The refusal of an injured employee to submit himself to a reasonable examination under this section shall suspend his right to compensation during such refusal.


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Through November 30, 2016, the PTO reports that 5446 petitions for inter partes review (“IPR petitions”) filed, as well as 489 petitions directed to covered business methods (“CBM petitions”) and 43 Post-Grant Review (PGR) petitions. The number of IPR and CBM petitioner declined in Fiscal Year 2016 (“FY 16”) compared to FY 2015. Specifically, in FY 15, there were a total of 1737 IPR and 149 CBM petitions filed, compared to 1565 IPR and 94 CBM petitions filed in FY 16. The total number of PGR’s increased, however, from 11 in FY 15 to 24 in FY 16, which was to be expected given the growing number of issued patents qualifying for the PGR procedure. The number of Bio/Pharma petitions has increased from about 9% in FY 15 to 13% for FY 16, while the number of electrical/computer petitions has declined from 63% in FY 15 to 55% thus far in FY 16.
Patent Owners continued to file preliminary responses in FY 16 in the vast majority of cases, with only 239 instances reported so far not filing such a response.
Please click here for the latest G&B spreadsheet reflecting all IPR filings through January 31, 2017.
Please click here for the latest G&B spreadsheet reflecting all CBM filings through January 31, 2017.
Please click here for the latest G&B spreadsheet reflecting all PGR filings through January 31, 2017.
On January 9, 2017, in Phigenix, Inc., v. Immunogen, Inc., the CAFC clarified the conditions a petitioner must meet to have standing to challenge a USPTO decision on appeal. Phigenix filed an IPR against ImmunoGen’s U.S. patent No. 8,337,856 (the ’856 patent) arguing that 8 claims (directed to the treatment of breast cancer) were unpatentable. ImmunoGen licensed the patent to Genentech, who makes Kadcyla to treat breast cancer. The PTAB did not find the ‘856 patent claims unpatentable and Phigenix appealed. The CAFC dismissed the appeal for lack of standing, stating that three conditions must be fulfilled to meet the standing requirement: “(1) the petitioner must suffer an injury in fact, (2) that is fairly traceable to the challenged conduct of the appellee, (3) that is likely to be redressed by a favorable judicial decision”. The CAFC concluded that Phigenix did not establish that it has suffered an injury, and so lacks standing to pursue the appeal. The CAFC rejected Phigenix’s argument that it suffered actual economic injury because the ‘856 patent increases competition between itself and ImmunoGen such that some portion of ImmunoGen’s revenue could have been received by Phigenix. Phigenix did not show that it risks infringing the ‘856 patent or that it is an actual or prospective licensee.
In Perfect Surgical Techniques, Inc. v. Olympus America, Inc., Case No. 15-2043 (Nov. 15, 2016), the CAFC vacated and remanded the PTAB’s decision that Perfect Surgical Techniques (PST) failed to antedated the prior art because it did not prove that the inventor of the ‘384 patent was “reasonably diligent in reducing his invention to practice”. The critical period to establish diligence in this case began just prior to the reference’s effective date and concluded on the date the invention was reduced to practice. The inventor testified that he “diligently worked with” his patent attorney during the critical period according to his schedule as a surgeon and a lecturer. PST produced testimony as well as correspondence and the attorney’s billing records which did not show daily activity, but did include several precise dates within the critical period.
While the PTAB concluded that that the inventor failed to show “continuous exercise of reasonable diligence for the entire critical period,” the CAFC rejected this standard, indicating that the PTAB’s threshold was too high and thus conflicted with CAFC precedent, which holds that “a patent owner need not prove the inventor continuously exercised reasonable diligence throughout the critical period; it must show there was reasonably continuous diligence.” (citing Tyco Healthcare Grp. v. Ethicon Endo-Surgery, Inc. and Monsanto. The CAFC indicated that the standard does not require the inventor to work every day, and further that a period of inactivity would not “automatically vanquish” a claim of reasonable diligence. Rather, the standard assures that “the invention was not abandoned or unreasonably delayed”.
In REG Synthetic Fuels, LLC, v. Neste Oil OYJ, (November 8, 2016, the CAFC vacated and remanded the PTAB’s decision to exclude email evidence as hearsay. The PTAB instituted an IPR filed by Neste Oil against REG Synthetic’s U.S.P. 8,231,804 over the art, which REG tried to swear behind using emails exchanged between the inventor and a third party (Microtek) before the patent filing date proving “a conception and reduction to practice before the filing date of” the reference. The emails indicate that the inventor had trouble “reaching a 90% purity” and that “80% purity was the best they got”. On appeal, PEG argued that the emails were not submitted for the truth of the matter asserted, but as evidence that the inventor “recognized and communicated his conception of the invention to a third party” before a certain date. The CAFC agreed, stating that “the act of writing and sending the email is, by itself probative evidence.
In Boeing Company v. Seymour Levine, IPR2015-01341, the PTAB rejected Seymour Levine’s swear-behind testimony used to try to save some claims of its patent RE39618 challenged in the IPR. The prior art was filed only 2 months before the patent at issue and thus Seymour attempted to swear behind the art, arguing that the inventor was the first to conceive the invention and diligent in reducing the same to practice. However, Seymour failed to provide sufficient evidence to corroborate the inventor’s testimony which, “standing alone, is insufficient to prove conception and diligence, as some from or corroboration is required”.
On November 7, 2016, in SAS Institute, Inc. v. Complementsoft, LLC, U.S., the CAFC refused to rehear en banc the CAFC’s decision not to review the PTAB’s decision to institute the IPR on only some claims, as opposed to all of the claims that were the subject of the petition. The CAFC indicated that the AIA only requires the PTAB to address the claims “as to which review was granted.” Judge Newman dissented, saying that choosing only certain claims to be addressed in an IPR is “contrary to the goals of the AIA” and obligates the parties to litigate the remaining claims.
The GREENBLUM & BERNSTEIN keePing TABs NEWSLETTER is issued by GREENBLUM & BERNSTEIN, P.L.C., an intellectual property firm, to provide timely news in the field of intellectual property. The NEWSLETTER provides monthly updates on recent issues of general interest in this field. The views and/or opinions expressed herein do not necessarily reflect those of GREENBLUM & BERNSTEIN, P.LC. Information regarding the contents of the Newsletter can be obtained by contacting Bruce Stoner at GREENBLUM & BERNSTEIN, P.L.C., 1950 Roland Clarke Place, Reston, VA 20191. © 2017 GREENBLUM & BERNSTEIN, P.L.C.

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


UNUM GROUP, PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendants.
TIMOTHY S. HILLMAN DISTRICT JUDGE.
Dr. Anne Rosenthal (“Plaintiff”) entered into an insurance contract with Unum Group (“Unum”) and Provident Life and Accident Insurance Company (“Provident Life”) (collectively referred to as “Defendants”) in 1992. She began receiving disability benefits under the insurance policy in 2014, until her benefits were denied. She brought the instant action in the District of Massachusetts against the Defendants for breach of contract (count I), breach of the covenant of good faith and fair dealing (count II), bad faith pursuant to 42 Pa.C.S.A. §8371 (count III), and unfair and deceptive acts and practices under Mass. Gen. Laws chapter 93A, § 9 (count IV). The Defendants subsequently filed a motion to transfer venue to the District of Kansas.
Unum is a Delaware corporation with a principal place of business in Chattanooga, Tennessee. Provident Life is a Tennessee corporation with its principal place of business in Chattanooga, TN, with offices in a number of locations including Worcester, MA. Plaintiff currently resides in Kansas and has since 1999.
Plaintiff originally purchased and was delivered an insurance policy (the “Policy”) by Defendants, while residing in Pennsylvania in 1992. Thereafter, Plaintiff moved to Arlington, Massachusetts where she lived at the time she increased her benefits under the Policy, effective May 1, 1998. In July of 1999, Plaintiff moved to Kansas where she worked as an orthopedic hand surgeon at Rockhill Orthopedic Specialists in Missouri.
On June 19, 2014, Plaintiff was forced to stop working due to ocular impairments. She submitted a claim for benefits under the Policy on July 3, 2014. Defendants approved Plaintiff's claim in November 2014 and provided benefits through October 8, 2015, when they were terminated. Plaintiff filed a number of appeals, all of which were denied out of the Defendants Worcester, MA office. The Plaintiff filed this action and the Defendants subsequently filed the instant motion to transfer venue to the United States District Court, District of Kansas.
“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought” pursuant to 28 U.S.C §1404(a). It is the moving party's burden to establish that “an adequate alternative forum exists and that considerations of convenience and judicial efficiency strongly favor litigating the claim in the second forum.” Iragorri v. International Elevator Inc., 203 F.3d 8, 12 (1st Cir. 2000). There is a strong presumption in favor of the plaintiff's choice of forum. Royal Bed & Spring Co. v. Famossul Industria e Comercio de Moveis Ltda., 906 F.2d 45, 52 (1st Cir. 1990). However, when the plaintiff's choice of forum has little or no connection to the operative facts of the case, such as the plaintiff being a nonresident of the chosen forum, the court may afford less weight to their choice. United States ex rel. Ondis v. City of Woonsocket, 480 F.Supp.2d 434, 436 (D.Mass.2007).
Additional factors the court should consider are the convenience of the parties, the convenience and location of the material witnesses and documents, connection between the particular issues involved in the case and the forum state, the applicable law, and any relevant state or public interests that may be involved in the case. Momenta Pharm., Inc. v. Amphastar Pharm., Inc., 841 F.Supp.2d 514, 522 (D. Mass. 2012). The convenience and location of witnesses is probably the most important factor for the court to consider in a motion to transfer. Gemini Investors Inc. v. Ameripark, Inc., 542 F.Supp.2d 119, 126 (D. Mass. 2008). In analyzing the convenience of nonparty witnesses, the court should assess the number, nature, and quality of each potential witnesses' testimony and whether or not they can be compelled to testify. Id. The moving party bears the burden of specifying the importance of the named witnesses. Princess House, Inc. v. Lindsey, 136 F.R.D. 16, 21 (D. Mass. 1991). Merely shifting inconveniences between the parties is not sufficient to overcome the deference afforded to the plaintiff's choice of forum. Momenta Pharm., Inc., 841 at 522. (quoting Holmes Grp., Inc. v. Hamilton Beach/Proctor Silex, Inc., 249 F.Supp.2d 12, 18 (D.Mass.2002)).
The parties' dispute who the material witnesses are in this case. It is the Defendants contention that five medical professionals and witnesses from Plaintiff's place of work, all of whom are located in Kansas or Missouri,  will be necessary to litigate this claim. The Plaintiff acknowledges that she will need to bring at least one medical professional from Kansas in order to litigate. Because the underlying issue is whether or not Plaintiff was unlawfully denied benefits under the Policy, the Plaintiff's diagnosis, symptoms, potential treatment, recovery, and job responsibilities are material. Therefore, the testimony and documents provided by the health care professionals who examined the Plaintiff, which includes all of the stated Kansas medical witnesses, are necessary, as is the Plaintiff's employer.
The Plaintiff argues that current and former employees of Defendant, all of whom live or work in Massachusetts, are material to this action. She asserts that employee witnesses are necessary to show that Defendants acted in bad faith and with deceptive practices. While testimony of some past and current employees may be material to this case, even at a cursory glance, it is highly improbable that testimony from ten employees, some of whom may have been involved in adjudicating Plaintiff's claim, is necessary. Additionally, at least half of them are still employed by Defendants. Therefore, those witnesses can be secured to testify in Kansas. See Sigros v. Walt Disney World Co., 129 F.Supp.2d 56, 71 (D. Mass. 2001) (if “a court order or the persuasion of an employer who is a party to the action can secure the appearance of witnesses regardless of the location of forum, that factor diminishes in importance.”).


Article 37(1)(a) of the 1977 Additional Protocol I lists “the feigning of an intent to negotiate under a flag of truce” as an act of perfidy.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 85(3) and (5). Article 85 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.44, 30 May 1977, p. 291.
Article 21(1) of the draft Additional Protocol II submitted by the ICRC to the CDDH provided that “when carried out in order to commit or resume hostilities, … the feigning … of a humanitarian negotiation” was considered as perfidy.
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 114.
Article 117 of the 1863 Lieber Code considers it “an act of bad faith, of infamy or fiendishness, to deceive the enemy by flags of protection”.
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 117.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 703(a); see also § 910.
Australia’s LOAC Manual (2006) states: “Acts which constitute perfidy include feigning of … an intent to negotiate under a flag of truce or surrender”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.3; see also § 9.10.
Burundi’s Regulations on International Humanitarian Law (2007) states: “Perfidy consists of committing a hostile act under the cover of legal protection (e.g. … feigning the intention to negotiate under the cover of the flag of truce …)”.
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 32; see also Part I bis, pp. 46, 95 and 115.
Cameroon’s Instructor’s Manual (1992) states that “feigning to negotiate under the flag of parlementaires” is a perfidious act.
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 30, § 131.1 and p. 90, § 222; see also p. 63, § 234.
Furthermore, the manual states that “abuse of the flag of parlementaires to surprise the enemy” is also an act of perfidy.
Cameroon’s Instructor’s Manual (2006) states that “the abuse of the flag of truce to surprise the enemy” constitutes an “act of perfidy”.
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p 59, § 251; see also p. 85, § 341 p. 183, § 494.A and p. 222, § 222.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-2, § 9(a) (land warfare), p. 7-2, § 17(a) (air warfare) and p. 8-11, § 81(a) (naval warfare).
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 14-1, § 8.
The manual further states that “perfidious use of … protective signs recognized by the Geneva Conventions or [the 1977 Additional Protocol] I” is a grave breach of the 1977 Additional Protocol I and a war crime.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 603.2.a (land warfare), 706.2.a (air warfare) and 857.2.a (naval warfare).
Colombia’s Directive on IHL (1993) punishes “the perfidious use of … protective signs recognized under the law of war (the white flag of parlementaires, for example)”.
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction): “The following acts are regarded as perfidy: … The misleading use of … the white flag of truce”.
- feigning of an intent to negotiate under a flag of truce.
Croatia’s LOAC Compendium (1991) provides that the “perfidious use of distinctive protective signs” is a grave breach and a war crime.
Using a protective sign in order to deceive the enemy and attain an operational goal constitutes an act of perfidy. In some cases, this may be a war crime. It is notably prohibited to feign an intention to negotiate under the cover of the flag of parlementaires.
Under Germany’s Soldiers’ Manual (1991), “the feigning of the intention to negotiate under a flag of truce” constitutes a perfidious act.
Misusing the flag of truce constitutes perfidy and hence a violation of international law … The flag of truce is being misused, for instance, if soldiers approach an enemy position under the protection of the flag of truce in order to attack.
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 230; see also § 1019 (naval warfare).
The Hellenic Navy’s International Law Manual (1995) provides that “the pretentious waving of a white flag in order to propose a truce” constitutes perfidy.
Hungary’s Military Manual (1992) states that “to falsely claim protected status, thereby inviting the confidence of the enemy: e.g. misuse of: … flag of truce” is an act of perfidy.
The manual further states that the “perfidious use of distinctive protective signs” is a grave breach of the law of war and a war crime.
Report on the Practice of Israel, 1997, Chapter 2.4, referring to Conduct in the Battlefield in Accordance with the Law of War , Israel Defense Forces, 1986, p. 8.
Madagascar’s Military Manual (1994) states that “it is prohibited to feign a protected status thereby inviting the confidence of the enemy”, such as abuse of the white flag.
The Military Manual (1993) of the Netherlands states that the 1977 Additional Protocol I “gives a number of examples of treacherous behaviour: feigning intent to negotiate under the flag of parlementaires”.
- the feigning of an intent to negotiate under a flag of truce.
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, pp. 42 and 43, § 12(a).
Peru’s IHL Manual (2004) states that “the feigning of an intent to negotiate under a flag of truce” is an example of perfidy.
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 27.e.(9).(a).
Peru’s IHL and Human Rights Manual (2010) states that “the feigning of an intent to negotiate under a flag of truce” is an example of perfidy.
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 28(e)(2)(a), p. 239.
Under Romania’s Soldiers’ Manual (1991), “feigning an intent to negotiate under the cover of a flag” is an act of perfidy.
When planning and conducting combat operations it is necessary to draw a clear distinction between perfidy and ruses of war. Perfidy means committing a hostile act under the cover of a right to protection by feigning: … an intent to negotiate under a flag of truce.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 2.6.c.(1); see also § 7.5.c.
Likewise, according the manual, “feigning the intent to negotiate under a flag of parlementaires” is regarded as an act of perfidy.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, §§ 3.3.b.(1) and 5.3.c; see also § 7.3.c.
Moreover, the manual states that it is a grave breach and a war crime “to make a perfidious use … of … recognized protective signs”.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.6.c.(1); see also § 7.5.c.
The manual further states that “the feigning of an intent to negotiate under a flag of truce” is an example of a perfidious act.
Sweden’s IHL Manual (1991) notes that “the feigning of an intent to negotiate under a flag of truce” is defined as perfidious conduct by Article 37 of the 1977 Additional Protocol I.
Switzerland’s Basic Military Manual (1987) forbids perfidy. Thus, “it is notably prohibited … to feign a desire to negotiate by misusing the flag of parlementaires”.
As an example of “murder by treason”, the manual lists firing at the enemy while approaching them under the protection of a white flag.
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 18, commentary.
The manual also considers the “perfidious use of … distinctive signs recognized by the [1949 Geneva] Conventions or [the 1977 Additional Protocol I], in violation of Article 37 [of the 1977 Additional Protocol I],” as a grave breach of the 1977 Additional Protocol I.
Ukraine’s IHL Manual (2004) states that an example of perfidy is “the feigning of an intention to negotiate under a flag of truce”.
The UK Military Manual (1958), in connection with the requirements for being granted the status of combatant, notes in particular that irregular troops “should have been warned against the employment of treachery [and] improper conduct towards flags of truce”.
The manual considers it a legitimate ruse “to utilise an informal suspension of arms for the purpose of collecting wounded and dead … to execute movements unseen by the enemy”. For instance, it notes an incident during the Russo-Japanese War of 1905, in which a group of Russians under the protection of the white flag and the red cross emblem advanced towards the Japanese army and asked for a suspension of arms to collect the wounded and the dead. It then used the occasion to withdraw completely.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 319, including footnote 1.
The manual condemns as unlawful the use of a “white flag for the purpose of making the enemy believe that a parlementaire is about to be sent when there is no such intention, and to carry out operations under the protection granted by the enemy to the pretended flag of truce”.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 416.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 10.10.1.
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) states that “feigning an intention to negotiate under a flag of truce” is an act of perfidy.
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides that “every person who, whether within or outside Canada, commits a grave breach [of the 1977 Additional Protocol I] … is guilty of an indictable offence”.
Colombia’s Penal Code (2000), in an article entitled “Perfidy”, imposes a criminal sanction on “anyone who, during an armed conflict, with intent to harm or attack the adversary, … uses improperly … the white flag of parlementaires”.
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international or non-international armed conflict, “makes improper use … of the flag of truce, … thereby causing a person’s death or serious injury”.
Under Mali’s Penal Code, “using the flag of parlementaires … and thereby, causing loss of human lives or serious injuries” is a war crime in international armed conflicts.
Myanmar’s Defence Services Act (1959) punishes any person who “treacherously … sends a flag of truce to the enemy”.
Myanmar, Defence Services Act, 1959, Section 32(f).
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict … uses … in a perfidious manner the flag of parlementaires”.
Under Sweden’s Penal Code (1962), as amended in 1998, misuse of flags of parlementaires or “the killing or injuring of an opponent by means of some other form of treacherous behaviour” constitutes a crime against international law.
Tajikistan, Criminal Code (1998), Article 403(1).
A training video on IHL produced by the UK Ministry of Defence emphasizes that it constitutes treachery to fire under the cover of protection of the flag of truce.
The perfidious use … of emblems, signs, signals or uniforms referred to in Article 37 … of the Protocol [among which the flag of truce], for the purpose of killing, injuring or capturing an adversary, constitutes a grave breach under [Article 85(3)(f) of the 1977 Additional Protocol I].
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that “to pretend an intent to negotiate under a flag of truce” is an act of perfidy.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 409(a).


See below for a great piece on the stalemate in Washington on the Small Business Jobs bill. I like it because it takes both Republicans and Democrats to task.
Both parties are playing politics with our livelihood and I am fed up with it. To both parties and the President get the Small Business Jobs Bill passed and let small business do what we do best. Create jobs.
To all those on the email tree please forward this to your colleagues and get people to write to their legislators. Senators Boxer and Feinstein support this so it is more important you get your Congressperson on board.
Marcus and Ahmod thank the Senators for their support.
Thank you Tony Wilkenson from the National Association of Government lenders for sending me this article.
As of October 8, California employers must begin distributing an updated version of the workers’ compensation new hire pamphlet to all employees hired on or after that date; post revised workers’ compensation employee posting notices; provide an updated version of the DWC-1/Notice of Potential Eligibility to injured workers and post new Medical Provider Network (MPN) notices if they use an MPN.
Because the details on this “complete written MPN employee notification” are MPN-specific, claims administrators are scrambling to make sure these notices are ready for employers to post by the October 8 effective date. In addition, however, the recently adopted regulations require MPN information to be added to the workers’ compensation new hire pamphlets, the general workers’ compensation posting notices, and to the DWC-1/NOPE, so all of these materials are also being revised to reflect the new rules that take effect in less than two months.
Under the California Labor Code and state regulations, insured and self-insured employers are required to inform their employees of their workers’ compensation rights and obligations by posting state-approved notices (LC § 3550) and providing pamphlets to new hires (LC § 3551). The law specifies that insurers shall provide these notices to their policyholders with advice concerning the posting requirements and the penalties for failure to post and supply the information to employees [LC §§3550 (f) and 3551(c)]. Failure to provide the information can result in loss of employer medical control [LC §3550 (e)], civil penalties of up to $7,000 for each violation of the posting requirement [LC §6431], and toll the statute of limitations for filing a claim.
State regulations allow private enterprises to prepare and publish the posting notice or pamphlets if approved by the DWC, so for many years, insurers, employers and others have relied on CWCI to produce these materials and keep them current. Following the adoption of the regulations last week, CWCI submitted revised versions of its new hire pamphlet, “Facts About Workers’ Compensation,” and its posting notice, “If A Work Injury Occurs” for DWC review and approval. Once the approvals are given, CWCI will typeset, print and copyright the updated publications. To meet LC §3551(b) and CCR§9883(e), CWCI will also translate and print the revised pamphlets and posting notice in Spanish. In addition, the Institute will continue to produce the DWC-1/NOPE as a 5-part form, reformatted with the revised Notice of Potential Eligibility as a cover sheet.
Beyond these mandatory notices, the Institute is also updating its injured worker pamphlet, “Facts For Injured Workers” to reflect current TD rates and add MPN information. Although the 2002 reform bill (AB 749) eliminated the statutory requirement that claims administrators include a pamphlet explaining a worker’s benefits and obligations with the first notice of payment or notice of delay (LC §138.4), many companies continue to use “Facts For Injured Workers” as a way to provide claimants with basic information early in the life of the claim. The “Facts For Injured Workers” also can be used to meet the Insurance Code §1871.8 notice requirement on fraudulent receipt of temporary disability, and the LC §3553 notice requirement for victims of workplace crime. This pamphlet is available in English and Spanish as well.
Insurers, employers, TPAs, agents and brokers, and others who need to order the revised pamphlets and posting notices, as well as the revised DWC-1/Notice of Potential Eligibility may now do so by visiting the Institute’s online “Store” at http://www.cwci.org/ and placing a pre-order. Pending the DWC approvals, the Institute expects to have all of these materials ready for shipping by mid-September. In the meantime, the Institute will continue to stock the current notices and claim forms that should be used until October 7, and as a service to the community, has reduced the minimum order requirement so anyone needing a limited supply of the current materials to meet their interim needs can order them in smaller quantities. For further information regarding ordering, call Fran Perry at CWCI (510) 251-9470.
Information on these new notice requirements, as well as other recent regulatory changes, will be covered in an upcoming CWCI seminar, tentatively scheduled for mid-October. Specific dates and locations will be announced soon and posted in the seminar section of the Institute web site.
CWCI members may log in to http://www.cwci.org/ and access Bulletins in the Member area, while nonmembers with Research/Bulletin subscriptions may log in and access Bulletins under Resources (subscriber files). Public information is also posted on the website, and nonmembers may order annual subscriptions from the website store.
In my email to you last week I asked if you were eligible for the tax credit provided under the new health bill. Many of you responded to me that you were not aware of the credit.
Basically if you have less than 25 employees with an average salary per employee of under $50000 you are eligible. The credit is a maximum of 35% of your premiums now and 50% 2014. I am providing a link below for you for more information.
Another provision in the health bill provides for a tax credit for non profits. The same basic rules apply per above but the credit is 25% now and in 2014 50%. It is not clear how you get this credit because of the nonprofit status but the regulations should be coming out shortly.
I am sure a lot of you volunteer in non profits so you would be doing them a service to advise them of this credit.
Small Business California has been asked by the California Endowment Foundation to obtain the views of California small businesses about the Health Reform legislation. Thank you to all of you that completed this. If you haven’t please take a couple of minutes to do so.
· WHAT DO SMALL BUSINESSES SEE AS THE ADVANTAGES OF HEALTH CARE REFORM FOR THEIR WORKFORCE AND DAY-TO-DAY OPERATIONS.
· WHAT DO SMALL BUSINESSES SEE AS PROBLEMS FOR HEALTH CARE REFORM ?
Small Business California has been asked by the California Endowment Foundation to obtain the views of California small businesses about the Health Reform legislation.
Could you please respond to the questions below. If you don’t know the answer to one or more of the questions that is also an acceptable answer.
I would also like to know if any of you have taken advantage of the tax credits available in the health plan. Do you know what they are? Do you plan to take advantage of these.
Please see below press release indicating Small Business California's opposition to Proposition 23. We know this is controversial but given our strong support of AB 32 and our efforts to help small businesses reduce their energy use and cost through programs like On Bill Financing we felt it important to take this position.
We also feel there are tremendous opportunities for small business to drive research and development and small business job creation.
SACRAMENTO – Small Business California (SB-Cal) today announced its opposition to Proposition 23, the November ballot measure that would repeal California's clean energy and air pollution standards.
Small Business California is a proactive, non-partisan business advocacy organization whose only agenda is the well being of California small businesses. Working for all California small businesses for a better business environment, SB-Cal is responsive to the needs of California small business owners.
Other business entities that officially oppose Proposition 23 are: Google, Bay Area Council, Levi Strauss & Co., the San Francisco and Greater San Fernando Valley Chambers of Commerce, LosAngeles Business Council, Virgin America, Silicon Valley Leadership Group, Warner Bros.
Entertainment, Inc., and hundreds of small business owners.
This was sent to me by one of our members. I was not going to send it out to all of you but I thought you might be interested. These are the state agencies and Commissions. Make sure you scroll to the end. Thank you Richard.
Yesterday the Workers Compensation Insurance Rating Bureau chief actuary estimated a 30% workers compensation rate increase for January 1 2011. This will have to go to the Board of WCIRB.
The WCIRB recommendation is purely advisory and can be rejected or modified by the Insurance Commissioner Poizner. Last fall the bureau called for a 22.8 percent increase which Poizner rejected citing the poor economy and need for insurers to cut costs. WCIRB makes annual or semi-annual rate recommendations. This latest recommendation is consistent with their last proposed rate increase of 23.7 percent. The WCIRB cited escalating claims costs and recent court decisions as the basis for the need to increase rates.
The Senate Jobs bill will be coming back to the Senate in September. As you know by prior emails they are looking at adding an amendment to change the requirement of 1099s for all goods and service providers who receive over $600 from your business.
An amendment has been put forth by Senator Baucus to eliminate filing for businesses with less than 25 employees and for those over 25 increase the threshold from $600 to $5000. To make up the revenues they would charge a tax on the 5 largest oil companies.
It has not been reported how much this will raise but the health bill with 1099 requirement would raise $17 billion over 10 years.
The question is if this tax raises $17 billion or more why not repeal the requirement completely. Small Business California is looking into this.
I have received four emails that begin with the below information. I have deleted the other things this email pointed out because there are numerous errors and I do not have time to go line by line.
The assertion that people will have to pay taxes on their employer provided health insurance is wrong unless in 2018 it is deemed to be a Cadillac plan. Employers will however have to include health insurance in W2s beginning 2011 but again employees will not pay taxes.
Do not forward these kind of emails. I would also be interested to know if you have received this. From what I can tell these emails are being sent without a signature and getting forwarded by recipients.
2011 TAX HIKES Read it and weep! Notice they thought they could put it in after this November election: Past this on to likely voters. Small business are smart people, they are not hiring or expanding because they see lower or no profits, increased cost and a worsening economy.
Starting in 2011, (next year folks), your W-2 tax form sent by your employer will be increased to show the value of whatever health insurance you are given by the company.
You will now be required to pay taxes on a large sum of money that you have never seen.
Take your tax form you just finished and see what $15,000 or $20,000 additional gross does to your Tax debt. That's what you'll pay next year. For many, it also puts you into a new higher bracket so it's even worse.
Here is an explanation of the rest.


(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.
Until recently the term "high seas" was always understood as intending the open and unenclosed waters of the sea beginning at low-water mark. In re Ross, 140 U.S. 453, 471 (1891); Murray v. Hildreth, 61 F.2d 483 (5th Cir. 1932); see also United States v. Rodgers, 150 U.S. 249 (1893) (Great Lakes). Although it has become common of late to use the term to describe waters beyond a marginal belt or "territorial sea" over which a nation claims special rights, see, e.g., United States v. Louisiana, (Louisiana Boundary Case), 394 U.S. 11, 22-23 (1969); United States v. Postal, 589 F.2d 862, 868 (5th Cir.), cert. denied, 444 U.S. 832 (1979), the classic definition, contemporaneous with this statute's development, is the correct one. The territorial sea was extended from 3 to 12 nautical miles by Presidential Proclamation 5928 of December 27, 1988.
The words of limitation "and out of the jurisdiction of any particular State," that appear in section 7(1) do not qualify the "high seas" jurisdiction, but only the "other waters within the admiralty and maritime jurisdiction of the United States." See Hoopengarner v. United States, 270 F.2d 465, 470 (6th Cir. 1959); Murray v. Hildreth, 61 F.2d 483; see also United States v. Rodgers, 150 U.S. at 265-66. Accordingly, the fact that a state fixes its boundary beyond the low-water mark and claims jurisdiction over the marginal sea, while relevant to venue, is immaterial to Federal jurisdiction. See Murray v. Hildreth, 61 F.2d 483. Although states' rights to exercise authority over the marginal sea developed more slowly than the law governing the jurisdiction of the Federal government over the marginal sea, see United States v. California, 332 U.S. 19, 32-35 (1946), it cannot be doubted that a state may exercise jurisdiction over the marginal portion of the ocean, provided there is no conflict with Federal law or the rights of foreign nations. See Skiriotes v. Florida, 313 U.S. 69 (1941). Indeed, a state may, subject to the same limitations, enforce its laws upon its citizens and registered vessels on the high seas beyond its territorial waters. Id. at 77. It is usually the policy of the Department to defer to a state when it is prepared to undertake prosecution of conduct violative of both state and Federal law.
Despite the apparent universal application of the term "high seas," it was early held that, as a general rule, Federal criminal jurisdiction does not attach to offenses committed by and against foreigners on foreign vessels. See United States v. Holmes, 18 U.S. (5 Wheat.) 412 (1890); United States v. Palmer, 16 U.S. (3 Wheat.) 281, 288 (1818). See, however, 18 U.S.C. § 7(8). The Convention on the High Seas to which the United States is a party, purports to give the flag state exclusive jurisdiction over its vessels on the high seas. However, the Convention has been held not to be self-executing with the result that it does not confer on defendants the right to complain of arrests, searches and seizures made without consent of the flag state or any subsequent trial. United States v. Postal, 589 F.2d 862, 873 (5th Cir.), cert. denied, 444 U.S. 832 (1979).
The limitation on Federal jurisdiction when the offense takes place on a river or harbor within the admiralty or maritime jurisdiction of the United States but not "out of the jurisdiction of a particular State," applies to offenses by naval personnel on naval vessels. See United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818).
"State" in the context of 18 U.S.C. § 7(1) means "State of the United States." Thus, there is Federal jurisdiction under this provision for offenses committed on American vessels in the territorial waters, harbors and inland waterways of foreign nations. See United States v. Flores, 289 U.S. 137 (1933). The port nation may also have jurisdiction if the offense disturbs its peace. Id. at 157-59.
Vessels have the nationality of the country where they are registered and whose flag they have a right to fly. See United States v. Arra, 630 F.2d 836 (1st Cir. 1980). See United States v. Ross, 439 F.2d 1355 (9th Cir.1971), cert. denied, 404 U.S. 1015 (1972), for methods of proving nationality. Note that under 18 U.S.C. § 7(1) Federal jurisdiction attaches if the vessel is even partially owned by a citizen of the United States. See United States v. Keller, 451 F. Supp. 631, 636-37 (D.P.R. 1978), aff'd on other grounds, sub nom United States v. Arra, 630 F.2d 836 (1st Cir.1980).
Venue for maritime offenses committed "out of the jurisdiction of a particular State" is governed by 18 U.S.C. § 3238. See United States v. Ross, 439 F.2d at 1358-59. Where the offense occurred within the boundaries of a state, venue lies there. See United States v. Peterson, 64 F. 145 (E.D.Wis. 1894).
Federal prosecution may not be undertaken following a state prosecution for the same conduct without authorization of the Assistant Attorney General of the Criminal Division as provided by JM 9-2.031 (Petite Policy). Prosecution should not be undertaken following a foreign prosecution unless substantial Federal interests were left unvindicated.


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A position report will normally be required in oceanic airspace unless instructed to “omit position reports” by the ATS. You can make a CPDLC Position Report or press on here to make a voice report.
There is a certain etiquette to be followed, to be sure. You can survive without it, but the radio operator on the other end and the pilots sharing HF time will appreciate your efforts if your transmissions are brief, clear, and follow the correct format. The radio operator is typing away at a console and is ready to enter the data in a specific order and format. If you deviate from the format, the radio operator has to do a mental translation from poor to proper. If you deviate from the order, the radio operator will have to make liberal use of the TAB and DELETE keys. All of this introduces the possibility of errors.
Photo: ARINC Radio Operator, courtesy of Chris Parker.
The radio operator is typing a pilot's position report in the top screen. The bottom screen contains SELCAL, frequency, and other radio adjustments.
Figure: Shanwick Radio/SATCOM frequencies, from Jeppesen Airway Manual, Atlantic Orientation Chart, 11 Feb 2011.
HF connectivity can be problematic depending on the aircraft, the weather, and solar sun spot activity. A rule of thumb is: “the higher the sun, the higher the frequency.” Pick higher frequencies in the day and lower at night.
The best source of frequency information is on the en route chart. Some regions employ “frequency families” that are determined by the aircraft‘s registration, location, and/or route of flight. If the assigned frequency is unusable, selecting another frequency in the same family would be appropriate.
Satellite phones provide another option, though most regions still classify this option as a last resort. (Many international recurrent training vendors say the service providers really don't care, I've not seen evidence to back that up.) The person answering the phone is a radio operator and expects the normal position reporting format.
Note: if the phone number on the chart is six digits long it is for an INMARSAT satellite phone. Your aircraft might be using INMARSAT satellites (most do) but it may not be an INMARSAT phone (many aren't). If you don't have an INMARSAT phone you might not be able to use that six digit number. The G450, for example, does have INMARSAT phones and can use the six digit number. Many of the phone numbers are standard telephone numbers that can be used on any aircraft satellite phones.
Is HF required if you have CPDLC or a good SAT Phone? Yes.
The person on the other end of the radio is sitting in front of a computer terminal with a form laid out in the following format. If you give your position report in this order, the radio operator will have an easier time relaying an accurate position the first time. If you skip around, it will slow things down and introduce the chance of error. So use this format.
Figure: Model AIREP, Section 1, from ICAO Doc 4444, Appendix A, §1.
[ICAO Doc 4444, Appendix A, §1, ¶1.1] Section 1 is obligatory, although Items 5 and 6 thereof may be omitted when prescribed in Regional Supplementary Procedures.
Item 1 — AIRCRAFT IDENTIFICATION. Report the aircraft radiotelephony call sign.
Item 2 — POSITION. Report position in latitude (degrees as 2 numerics or degrees and minutes as 4 numerics, followed by "North" or "South") and longitude (degrees as 3 numerics or degrees and minutes as 5 numerics, followed by "East" or "West"), or as a significant point identified by a coded designator (2 to 5 characters), or as a significant point followed by magnetic bearing (3 numerics) and distance in nautical miles from the point (e.g. "4620 North 07805 West", "4620 North 07800 West", "4600 North 07800 West", LN ("LIMA NOVEMBER"), "MAY", "HADDY" or "DUB 180 DEGREES 40 MILES"). Precede significant point by "ABEAM", if applicable.
Item 3 — TIME. Report time in hours and minutes UTC (4 numerics) unless reporting time in minutes past the hour (2 numerics) is prescribed on the basis of regional air navigation agreements. The time reported must be the actual time of the aircraft at the position and not the time of origination or transmission of the report. Time shall always be reported in hours and minutes UTC when making a special air-report.
Item 4 — FLIGHT LEVEL OR ALTITUDE. Report flight level by 3 numerics (e.g. "FLIGHT LEVEL 310"), when on standard pressure altimeter setting. Report altitude in metres followed by "METRES" or in feet followed by "FEET", when on QNH. Report "CLIMBING" (followed by the level) when climbing, or "DESCENDING" (followed by the level) when descending, to a new level after passing the significant point.
Item 5 — NEXT POSITION AND ESTIMATED TIME OVER. Report the next reporting point and the estimated time over such reporting point, or report the estimated position that will be reached one hour later, according to the position reporting procedures in force. Use the data conventions specified in Item 2 for position. Report the estimated time over this position. Report time in hours and minutes UTC (4 numerics) unless reporting time in minutes past the hour (2 numerics) as prescribed on the basis of regional air navigation agreements.
Item 6 — ENSUING SIGNIFICANT POINT. Report the ensuing significant point following the "next position and estimated time over".
[ICAO Doc 4444, ¶4.11.2.2] When assigned a speed to maintain, the flight crew shall include this speed in their position reports. The assigned speed shall also be advised on first contact with an ATC unit after a frequency change, whether or not a full position report is required.
The Atlantic documents don't make reference to this and HF radio operators don't expect you to report Mach Number and may even tell you it isn't necessary. The Pacific books don't mention it either but will ask for it if you omit it.
Figure: Model AIREP, Section 2, from ICAO Doc 4444, Appendix A, §1.
[ICAO Doc 4444, Appendix A, §1, ¶1.1] Section 2 shall be added, in whole or in part, only when so requested by the operator or its designated representative, or when deemed necessary by the pilot-in- command.
This will not apply to the vast majority of corporate aviation.
Figure: Model AIREP, Section 3, from ICAO Doc 4444, Appendix A, §1.
[ICAO Doc 4444, Appendix A, §1, ¶1.1] Section 3 shall be added in accordance with Annex 3 and the Regional Supplementary Procedures, Part 3 — Meteorology.
The requirement for a position report varies with region and is normally specified in the applicable en route chart or state pages. In the North Atlantic, not too long ago, the report was mandatory for aircraft not on the organized track system or upon request. These days, with so many aircraft giving real time CPDLC weather reports, the only time you will need to do this is if, for some reason, they ask you to.
If required, the Met Report is given immediately following the position report. If a mid-point report is also given, the position is given first in terms of a four digit latitude and three digit longitude, such as 4124N 030W.
About the met report: back in the old days you could tell a pro by the seamless transition between each item, right after the word "Next" would come "minus . . .", it was a thing of beauty. These days, however, nobody is giving weather reports and the radio operator is likely to be just as out of practice receiving met reports as you are giving them.
Portions of this page can be found in the book International Operations Flight Manual, Part IV, Chapter 3.

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My technical research integrates biostratigraphic and paleoenvironmental data (foraminifera), core, well-log and seismic data to examine the Earth’s stratigraphic record. Regional experience includes the Gulf of Mexico, Faeroe Basin, San Joaquin Valley (CA), New Jersey Margin and onshore Texas. Current Gulf of Mexico research is being sponsored through an industrial associates program. My education, training and outreach programs address the areas of unconventional resources and CO2 storage, with audiences ranging from state and federal regulators to the public. K-12 teacher professional development activities are focused on energy and earth science education and have received support from the National Science Foundation and the Department of Energy. My involvement in STEM education for pre-university age girls highlights: (1) the societal impacts of addressing energy, climate and water issues in the 21st century, and (2) building confidence in middle-and high-school age girls.
North American Micropaleontological Section, SEPM, Elected President, 1999.
Distinguished Lecturer, Ocean Drilling Program, 1998-1999.
Dallas Geological Society Public Service Award, 1995.
Nelson, C.H., Damuth, J.E., and H.C. Olson, 2018, Late Pleistocene Bryant Canyon Turbidite System: Implications for Gulf of Mexico mini-basin petroleum systems, Interpretation, v. 6 no. 1, p. SD89-SD114.
Olson, H.C., Damuth, J.E., and Nelson, H.C., 2016, Latest Quaternary sedimentation in the northern Gulf of Mexico Intraslope Basin Province: II. Stratigraphic analysis and relationship to glacioeustatic climate change, Interpretation, v. 4, no. 1, p. SC81-SC95.
Cunningham, R., Snedden, J., Norton, I., Olson, H.C., Whitaker, T., and J. Virdell, 2016, Upper Jurassic Tithonian-centered source mapping in the deepwater, northern Gulf of Mexico, Interpretation, v. 4, no. 1, p. SC97-SC123.
Damuth, J. E., and H. C. Olson, 2015, Latest Quaternary sedimentation in the northern Gulf of Mexico Intraslope Basin Province: I. Sediment facies and depositional processes, Geosphere, 11, 1689-1718.
Olson, H.C., J.W. Snedden and R. Cunningham, 2015, Development and application of a robust chronostratigraphic framework in Gulf of Mexico Mesozoic exploration, Interpretation, v. 3, no. 2, p. SN39-SN58.
Ellins K.K., Snow E., Olson H.C., Stocks E., and Olson J., 2013, The TeXas Earth and Space Science (TXESS) Revolution: A Model for the Delivery of Earth Science Professional Development to Minority-Serving Teachers, Journal of Geoscience Education, v. 61, no. 2, pp. 187-201.
Olson, Hilary C., and John E. Damuth, 2009, Character, Distribution and Timing of Latest Quaternary Mass-Transport Deposits in Texas-Louisiana Intraslope Basins Based on High-Resolution (3.5 kHz) Seismic Facies and Piston Cores, in D. Mosher et al., eds., Submarine Mass Movements and Their Consequences, Advances in Natural and Technological Hazards Research, Volume 28, Springer Science+Business Media, p. 607-617.
Olson, H.C., and P.R. Thompson, 2005, Sequence biostratigraphy with examples from the Plio-Pleistocene and Quaternary, in Koutsoukos, E. A. M., ed., Applied Stratigraphy, Kluwer Academic/Plenum Publishers, New York, p. 229-245.
Goff, J. A., J. A. Austin, S. Gulick, S. Nordfjord, B. Christensen, C. Sommerfield, H. Olson, and C. Alexander, 2005, Recent and modern marine erosion on the New Jersey outer shelf, Marine Geology, 216, 275-296.
Olson, H.C., and C. Smart, 2004, Pleistocene climatic history reflected in planktonic foraminifera from ODP Site 1073 (Leg 174A), New Jersey margin, NW Atlantic Ocean, Marine Micropaleontology v. 51, p. 213-218.
Olson, H. C., A. Gary, and G. Jones, 2003, Similarity curves as indicators of stratigraphic discontinuities, in Micropaleontological Proxies for Sea-Level Changes and Stratigraphic Discontinuities, edited by H. C. Olson and R. M. Leckie, SEPM Special Publication 75, p. 89-96.
Leckie, R. M., and H. C. Olson, 2003, Foraminifera as proxies of sea-level change on siliciclastic margins, in Micropaleontological Proxies for Sea-Level Changes and Stratigraphic Discontinuities, SEPM Special Publication 75, p. 5-20.
Damuth, J. E. and H. C. Olson, 2002, Neogene-Quaternary contourite and related deposition on the West Shetland Slope and Faeroe-Shetland channel revealed by high-resolution seismic studies, Mar. Geophys. Res., 22, 369-399.


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The U.S. Constitution's Compulsory Process Clause guarantees criminal defendants a "compulsory process for obtaining witnesses in his favor." Despite its prominent placement in the Sixth Amendment, the Compulsory Process Clause remained virtually dormant for more than 150 years, rarely called upon by either defendants or the US Supreme Court.
At common law, the Compulsory Process clause was considered limited in scope; it merely provided the defendant the right to use the government's service of process to forcibly produce witnesses at trial. However, one of the first cases decided on Compulsory Process grounds, United States v. Burr, hinted at a much broader interpretation of the clause. In Burr, a Supreme Court decision written by Chief Justice John Marshall, the Court held that the Compulsory Process Clause permitted defendant Aaron Burr to serve a subpoena duces tecum (i.e. to appear and produce evidence) for certain letters of the President of the United States. He argued that the letters might be material to his defense and their production was required under the Compulsory Process Clause.
The government objected, arguing that Compulsory Process only permitted the forced presentation of witnesses and not their documents. Justice Marshall, in his decision in favor of Burr, dismissed the distinction between persons and their papers and concluded that materiality could be satisfied by a demonstration that "there exist[s] any reason for supposing that the [subpoenaed] testimony may be material . . . ." Further, Marshall dismissed the argument that Burr's discovery motion could never be material because Burr had no knowledge of what the letters would eventually say, calling this limiting interpretation of Compulsory Process, "unreasonable."
Despite the implications of U.S. v. Burr, the Compulsory Process Clause was largely dormant for the next 100 years, with many similar cases decided on Due Process or Confrontation Clause grounds. Despite the dearth of cases deciding the scope and meaning of the Compulsory Process Clause, however, nearly ever state incorporated Compulsory Process into their own constitutions.
One of the earliest modern applications of the Compulsory Process clause was provided in Washington v. Texas, 388 U.S. 14 (1967), when the Supreme Court struck down a rule of evidence barring accomplice testimony and first declared the Compulsory Process Clause applicable to the states through the Due Process Clause of the Fourteenth Amendment. The court claimed the Compulsory Process Clause invalidated a rule that arbitrarily denied a defendant "the right to present a defense" by presenting material, competent witnesses who had first-hand knowledge of the events.
A few years later, in Chambers v. Mississippi, 410 U.S. 284 (1973), the Supreme Court was asked to decide whether a hearsay rule could potentially violate the Due Process Clause by preventing a witness from testifying about exculpatory material. In Chambers, a defendant on trial for murder attempted to present evidence of a third party's written admission to the crime. However, the defense witness repudiated on the stand and provided an alibi. The defendant was not permitted to cross-examine his own witness under Mississippi's evidence rules. The defendant then attempted to present evidence that the witness had confessed to the crime; however, this too was excluded on grounds that it violated the hearsay rule. The Supreme Court reversed the conviction, stating in part that "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." The decision, though decided on Due Process grounds, nonetheless mirrored the arguments made in Washington v. Texas.
In the Supreme Court's most recent case in the area, Holmes v. South Carolina, 547 U.S. 319 (2006), Justice Alito, in his first decision as a Supreme Court Justice, crafted an opinion that struck down a South Carolina procedural rule on grounds that it violated the Compulsory Process Clause of the Sixth Amendment. Originally, the Gregory Rule permitted trial judges to exclude evidence if they felt it would be unfairly prejudicial, confusing or misleading for the jury. In a later decision, the South Carolina Supreme Court expanded the Gregory Rule, holding that evidence of a third party's guilt should be inadmissible if there was strong evidence of the defendant's guilt.
In striking down South Carolina's rule, the Supreme Court stated that the right to Compulsory Process guarantees criminal defendants "a meaningful opportunity to present a complete defense." These guarantees are violated by any rule of evidence that is "arbitrary" or "disproportionate to the purpose they are designed to serve." Therefore, while the Gregory Rule may appear facially constitutional, it is defeated when blind obedience to the rule controverts the truth-seeking function of evidence.
This conclusion was based on two factors. First, the Gregory Rule, as applied, did not examine the credibility of the witnesses or the reliability of the evidence. Second, the rule, ostensibly designed to exclude logically weak evidence, did not examine the witness' statements in themselves. As a result, the rule unconstitutionally infringed on the defendant's right to Compulsory Process.
Instead, the court concluded they must be weak of evidence of guilty was strong. This new rule provided at least one guide to balancing rules of evidence and privilege against the defendant's right to Compulsory Process. First, the question must be asked whether the rule of evidence rationally serves evidence's truth-seeking function. If not, the next question is whether the state has any other legitimate reason for establishing the rule.
A comparison of two Supreme Court cases illustrates the continuing confusion over which constitutional provisions should apply when a discovery request collides with a claim to privileged communications.
In Pennsylvania v. Ritchie, the court was asked to decide whether the Compulsory Process clause permitted a defendant to subpoena confidential records from a state child welfare agency in hopes of discovering witnesses, medical reports and other exculpatory evidence. The court admitted that past decisions had "little occasion to discuss the contours" of Compulsory Process. Rather than taking the opportunity to explore those contours, the Court simply admitted that it "never held squarely" on Ritchie's Compulsory Process claim that the clause permitted the defendant unlimited discovery of witnesses or exculpatory evidence. The court then proceeded to analyze the discovery ruling on the basis of Due Process. The case was ultimately remanded for a determination of whether material and exculpatory evidence was present in the files which would require a new trial.
However, while declining to rule on the defendant's Compulsory Process argument, the court admitted that some cases, like United States. v. Nixon, suggested that disclosure of documents might be required under Compulsory Process grounds. In United States v. Nixon, the court confronted the question of whether the President's generalized claim to confidential communications trumped a defendant's right to discovery. Citing Compulsory Process as one of the reasons for disclosure, they concluded that the defendant's right to evidence outweighed the President's generalized claim to confidentiality.
Compulsory Process is limited by two overlapping principles. First, the right to present witnesses may be restricted by a witnesses claim to privilege and the collision between the two will often require a weighing of the countervailing policies behind each provision. Second, Compulsory Process may itself be limited by Due Process.
Robert Weisberg has argued that Supreme Court decisions have generally failed at providing "reliable guidelines" for when a defendant's right to Compulsory Process will defeat a witness's claim to privilege. Similarly, Westen has argued that Compulsory Process may only defeat certain claims of privilege. For instance, there is an intractable tension between the defendant's right to Compulsory Process and the witness's right to assert his or her Fifth Amendment right against self-incrimination.
Privilege analysis is more difficult in the context of a subpoena duces tecum for evidence from an officer's personnel file. First, the officer's generalized claim of confidentiality has limited basis without a thorough investigation of the witnesses and documents in their personnel file. Only a thorough investigation can conclusively determine the ultimate materiality and credibility of the allegations.
Second, because an officer is a private individual "acting under color of state law" he is transformed into an agent of the state. Therefore, it is unclear whether the privilege asserted is his or the states. In either case, the privilege may be substantiated on separate but overlapping grounds. For the private individual, a claim of confidentiality is necessary to discourage timidity, embarrassment and harassment of the individual. From the state's point of view, improper disclosure of unsubstantiated claims undermines public confidence in the penal state.
No Compulsory Process violation can occur if the testimony or evidence is immaterial to a substantial issue of law. Westen, whose Compulsory Process I and Compulsory Process II, are seminal works in the field, has argued that Compulsory Process claims for witnesses should be divided into four categories -- competent witnesses, relevant witnesses, material witnesses and favorable witnesses - and that Compulsory Process is limited by these determinations. While such an analysis may makes sense in terms of compelling a witness to testify at trial, it makes little sense in compelling a witness to testify prior to trial for purposes of discovering potentially exculpatory material since the relevance, materiality or favorability of the evidence cannot be determined until it is disclosed and investigated. To demand a strict materiality standard for discovery would put the defendant in the same paradoxical situation that Burr found himself in when he attempted to subpoena letters from the President of the United States. The Supreme Court set forth what for some may be an unsatisfactory analysis of this problem in U.S. v. Valenzueala Bernal, when they held that Compulsory Process was not violated when U.S. government deported illegal aliens who could have provided testimony in favor of the defendant. The court held that, in order to prove a Compulsory Process violation, the defendant had to demonstrate that the testimony would have been material, favorable and not merely cumulative in nature. However, the court recognized that, because the illegal aliens had never been interviewed, the standard for materiality must be lower, otherwise the defendant would be caught in the paradoxical of having to prove materiality of testimony he does not possess. Nonetheless, the court concluded that the defendant had no Sixth Amendment violation until they made a "plausible explanation of the assistance he would have received from the testimony of the deported witnesses." The court distinguished this case from Burr, by concluding that the defendant's "knowledge of the truth" is the critical factor. In Burr, the defendant had no knowledge whatsoever of the letter's contents, whereas in Valenzueala Bernal the defendants had some knowledge of the witnesses testimony.
In practice, the right to confront witnesses also includes the right to compel the appearance of material witnesses. By virtue of Section 144 and 145 of the CPC a court may, on its motion, issue a summons compelling a person to appear and testify, or to produce documents in his custody. If the witness refuses to comply with the summons, the court may issue a warrant directing that the witness be brought before the court to testify.
A court may also issue a warrant to compel the attendance of a witness on the strength of evidence given under oath. See section 146 of the Constitution.
This page was last edited on 17 November 2010, at 15:48.

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