The waters surrounding Section 101 of the Patent Act are as muddied as they come. The statute sets forth only in broad strokes what inventions are patentable, leaving it to the courts to create an implied exception to patentability for laws of nature, natural phenomena, and abstract ideas. It has been difficult for lower courts to determine whether an invention falls within one of these excluded categories, and the U.S. Supreme Court has refused to provide a definition of what constitutes an “abstract idea.” Nonetheless, the Court in recent years has laid several foundation stones in Bilski, Mayo, Myriad and Alice for a bridge over these troubled waters. Trying to build upon these, the Federal Circuit issued two recent opinions dealing with Section 101: Enfish, LLC v. Microsoft Corporation and In re: TLI Communications LLC Patent Litigation. However, these decisions only create more confusion and cannot provide a safe means of passage over the turbulent waters of patent eligibility.
Section 101 of the Patent Act consists of only 36 words, yet it has spawned countless hours of litigation. Through this process, the courts have recognized three implied limitations to patentable subject matter: laws of nature, natural phenomena, and abstract ideas. But these categories have never been clearly defined. And, to compound the problem, the lines between these categories have often blurred over the years, leading to much confusion among — and unpredictability between — the lower courts as to the difference between patentable and unpatentable subject matter.
Also forming part of this foundation is the unanimous opinion in Alice, in which the Court upheld and clarified Mayo’s analysis as a two-step test. First, a court must determine whether the claim at issue is directed to one of the three patent-ineligible categories. If it is, a court must then determine whether the elements of the claim, either individually or in combination add enough to transform the claim into a patent-eligible invention. This second step is referred to as the search for the “‘inventive concept.’” These two steps are the supporting piers upon which any future bridge over the raging waters of Section 101 must be built.
Despite the seemingly straight-forward two-part test, however, district courts have struggled to apply Alice. In particular, courts have made little headway in giving step one a meaningful role in the Alice analysis. District courts have often identified an abstract concept involved with little-to-no discussion and then address the meat of the analysis in step two. This is especially true when the patented invention involves computer software.
The Federal Circuit recently attempted to carve out a meaningful role for step one of the Alice analysis in its opinion in Enfish. The Federal Circuit explained that there is “no reason to conclude that all claims directed to improvements in computer-related technology, including those directed to software, are abstract and necessarily analyzed at the second step of Alice, nor do we believe that Alice so directs.” Instead, district courts should “ask[ ] whether the focus of the claims is on the specific asserted improvement in computer capabilities . . . or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are involved merely as a tool.” If the focus is on the former, the claim is not abstract. If the focus is on the latter, the court must proceed to step two of the Alice analysis. And, if a district court is unsure, it must likewise perform the second step of the analysis.
In Enfish, the patents were “directed to an innovative logical model for a computer database.” In particular, the patented logical model included all data entries in a single table, with the column definitions being provided in the same table. Thus, the database was described as being “self-referential.” The Federal Circuit found that this was “a specific improvement to the way computers operate,” and, as such, was not an abstract idea within the meaning of Alice.
In coming to this conclusion, the Federal Circuit rejected the district court’s characterization of the asserted claims. The lower court had found that the claims “were directed to the abstract idea of ‘storing, organizing, and retrieving memory in a logical table’ or, more simply, ‘the concept of organizing information using tabular formats.’” The Federal Circuit, however, called this an oversimplification and instead found that “the claims are not simply directed to any form of storing tabular data, but instead are specifically directed to a self-referential table for a computer database.” The reason that the Federal Circuit found the claims to be directed to self-referential tabular formats as opposed to tabular formats more generally was the specification’s teachings that the claimed invention was superior to traditional database models. Thus, Enfish essentially turns step one of Alice into another inventive step analysis.
The Federal Circuit’s conflation of the Alice steps continued in TLI, which issued only five days after Enfish. The patent at issue in TLI “relate[d] generally to an apparatus for recording of a digital image, communicating the digital image from the recording device to a storage device, and to administering the digital image in the storage device.” Put more simply, the general nature of the invention was simply “the abstract idea of classifying and storing digital images in an organized manner.” The asserted claims were “directed to” this abstract idea since the claims merely set forth or describe the abstract idea.
Rather than stopping there, the Federal Circuit spent the bulk of its step one analysis justifying its conclusion that the invention was not a specific asserted improvement in how digital images are stored or an inventive solution to any technological problem. The court’s analysis of step two then largely repeated the same arguments.
While Enfish and TLI at first appear to be guidance that could reinforce step one of the Alice analysis, the inadequacy of these opinions becomes apparent once stress is applied. Contrary to the Federal Circuit’s reasoning in these cases, step one does not ask whether the claimed invention is superior to the prior art. Rather, it asks: (1) what is the general character of the invention and (2) is that general character a law of nature, natural phenomenon, or abstract idea?
Improvements over the prior art are irrelevant to step one and should only be considered in the search for an inventive concept in step two. Thus, while a “specific asserted improvement in computer functionality” survives a Section 101 challenge, it should be because the claim passes muster under the step two inventive concept inquiry despite being directed to an abstract concept such as data storage. The concept involved — data storage in this example — does not become less abstract simply because the invention is an improvement thereof.
Prior to Enfish and TLI, the Federal Circuit had correctly limited consideration of any improvements over the prior art to step two of the Alice analysis. For example, in DDR Holdings, the fact that the claims provided an innovative solution to an Internet-specific problem was only part of the discussion of step two. In that case, the claims were directed to systems and methods of generating a composite web page that combined certain visual elements of a “host” website with the content of a third-party merchant, such as information about a third-party’s product. The Federal Circuit found that the claims were directed to an abstract concept while acknowledging that it had difficulty articulating the exact abstract idea involved. A precise characterization of the abstract idea was unnecessary, however, as the claims satisfied Alice step two. In particular, the claims overrode “the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink” by sending the users to a novel, hybrid webpage rather than the third-party’s website.  Because “the claimed solution amount[ed] to an inventive concept for resolving this particular Internet-centric problem,” the claims were patent-eligible.
While the proper outcomes were arguably reached in Enfish and TLI, the way that the Federal Circuit achieved those results in these cases conflicts with prior precedent and renders the two Alice steps redundant of each other. This cannot be correct. Unless the court adjusts its construction efforts soon, the bridge slowly being built over the troubled waters of Section 101 will ultimately collapse, leaving the district courts without a means of safe passage through the chaos.
 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 67 (1972).
 See, e.g., Bilski v. Kappos, 561 U.S. 593, 612 (2010) (refusing to provide a specific definition of what constitutes an “abstract idea”).
 Mayo Collaborative Services v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1297 (2012).
 Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2111 (2013).
 See, e.g., Device Enhancement LLC v. Amazon.com, Inc., — F. Supp. 3d –, 2016 WL 2899246, at *7 (D. Del. May 17, 2016) (“§101 jurisprudence has evolved from the complete rejection of patentability for computer programs, to the almost complete acceptance of such, to the still difficult-to-discern requirements of the Alice analysis.”); Parus Holdings, Inc. v. Sallie Mae Bank, 137 F. Supp. 3d 660, 669 (D. Del. 2015) (“Given the evolving state of the law, the § 101 analysis should be, and is, a difficult exercise.”); Fairfield Indus., Inc. v. Wireless Seismic, Inc., 2014 WL 7342525, at *4 (S.D. Tex. Dec. 23, 2014) (“This difficulty is compounded by the fact that the two-part test outlined in Alice is new, and lower courts have received little guidance on how to determine whether a claim is directed to an abstract idea.”); Cal. Inst. of Tech. v. Hughes Commc’ns Inc., 59 F. Supp. 3d 974, 980 (C.D. Cal. 2014) (“The Supreme Court decisions on § 101 often confuse more than they clarify.”).
 Enfish, LLC v. Microsoft Corp., Case No. 2015-1244, slip op. at 11 (Fed. Cir. May 12, 2016).
 Id., slip op. at 18.
 Id., slip op. at 12.
 Id., slip op. at 14.
 Id., slip op. at 15 (“The specification also teaches that the self-referential table functions differently than conventional database structures. According to the specification, traditional databases . . . are inferior to the claimed invention. . . . Moreover, our conclusion . . . is bolstered by the specification’s teachings that the claimed invention achieves other benefits over conventional databases, such as increased flexibility, faster search times, and smaller memory requirements.”) (citations omitted).
 TLI Commc’ns LLC v. AV Auto., L.L.C., Case Nos. 2015-1372, -1376, -1377, -1378, -1379, -1382, -1383, -1384, -1385, -1417, -1419, -1421, slip op. at 3 (Fed. Cir. May 17, 2016).
 Id., slip op. at 8-11.
 Compare, e.g., id., slip op. at 9 (discussing how the telephone and server were generic computer components in the step one analysis section) with id., slip op. at 12-13 (discussing same in the step two analysis section).
 See, e.g., Datatrak Int’l, Inc. v. Medidata Solutions, Inc., 2015 WL 6870109, at *5 (N.D. Ohio Nov. 6, 2015) (The “purpose at step one is to ascertain the general nature of the patent and determine whether it is directed at an abstract idea. At step two, the Court looks to specific limitations in the patent to see whether a patent directed at an otherwise abstract idea contains an inventive concept.”); Genetic Veterinary Sciences, Inc. v. Canine EIC Genetics, LLC, 101 F. Supp. 3d 833, 842 (D. Minn. 2015) (“Although this argument may be relevant to the inquiry at Mayo step two, it does not alter the Court’s step one analysis. Whether a claim is narrowly drawn, or more broadly attempts to capture every facet of a law of nature, is a debate that is relevant at Mayo step two . . . .”).
 DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1248 (Fed. Cir. 2014).
I understand what you are saying, but I disagree. Here are my thoughts.
First, this article was submitted prior to the Bascom v. AT&T decision and has been in our pipeline for publication. Could it have been pulled and withheld, yes. Should it have been pulled and withheld, that question is more difficult and less clear to me.
Second, I don’t think anything said in this article is incorrect. The focus of the article is on the fact that the way the CAFC interpreted Alice in Enfish and TLI (both authored by Judge Hughes) the Alice steps become redundant, which conflicts with precedent and may create more long term confusion than they provide analytical assistance. So the point of the article remains perfectly valid even in light of the recent CAFC decision in Bascom v. AT&T.
Third, unlike in Enfish, in Bascom the CAFC did rule that the claims were seeking to cover an abstract idea (whatever that means), but that there was significantly more (whatever that means). So an article that focuses on whether Enfish really provides a bridge over the troubled waters of 101 I’m not really sure that more than a passing reference to Bascom would be warranted anyway, particularly given the whole point of the article was to explain the redundancy of this CAFC approach to the Alice test.
Finally, it is hard to know what significance Bascom v. AT&T will have, if any. With Judge Chen authoring the opinion and Judges Newman and O’Malley also on the panel this was about the best panel a patentee could hope to have for a 101 issue relating to software. Further, Chen makes a big deal about the civil procedure aspects of a 12(b)(6) motion, giving all inference to the nonmoving party (i.e., the patentee) for example. Chen is certainly right to point out the procedural posture, which many have been talking about in the community for some time, but to my knowledge this is the first decision to actually apply civil procedure to a 12(b)(6) motion arguing that patent claims are ineligible. I think the story of Bascom will be whether other panels pick up on that and whether district courts get the message. A motion to dismiss is an extraordinary remedy in practically every situation other than when a patent owner sues an alleged infringer, where is it commonplace.
Gene @2 re your last statement about patent owners being treated as a lower class of plaintiff (ones with merely “putative” rights that are disposable by way of an initial motion to dismiss), totally agree.
Thanks Step. You will read that again in my write-up of Bascom v. AT&T, likely published tomorrow.
I completely agree. You could add that they refuse to define “significantly more,” that they are pathologically preoccupied by the patent troll not in the room, that SCOTUS relies on amicus briefs for facts that have not been vetted, and they refuse to acknowledge the purpose of 101 as being only to weed out the most egregiously unpatentable claims (see Diamond v. Diehr… or actually… maybe they should read Diamond v. Diehr).
Glad to see practitioners standing up and saying “We’re mad and not going to take it anymore” instead of cowering to SCOTUS skullduggery.
“Reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540 (1953) (concurring).
“It would not be difficult to cite many instances of patents that have been granted, improperly I think, and without adequate tests of invention by the Patent Office. But I doubt that the remedy for such Patent Office passion for granting patents is an equally strong passion in this Court for striking them down so that the only patent that is valid is one which this Court has not been able to get its hands on.” Jungerson v. Ostby, 335 U.S. 560, 572(1949) (dissenting).
Gene, I am looking forward to your analysis of Bascom. It seems that finally some sanity may be re-appearing related to the troubled waters of section 101.
Judge Newman in his concurring opinion in this case writes: “I propose returning to the letter of Section 101, where eligibility is recognized for “any new and useful process, machine, manufacture, or composition of matter.”” I had to read it several times to make sure it was there. But it is.
The best analogy is with the finance industry since Goldman Sachs and Google behave in about the same way. Note that the founders of Google admitted in a documentary that their biggest fear is innovation from a start-up taking over their business.
Read that last sentence about 10 times.
There does seem to be some confusion about just what an abstract idea is. I think at a minimum it must be directed to something that is neither a machine, manufacture or composition. Because the claims in EnFish were directed to improvements in computer technology qua computer technology, I think the Federal Circuit was right to state that such is not an abstract idea.
I think we all have to consider the printed matter doctrine as a template for the Alice analysis. Clearly printed matter is nonstatutory and would qualify under Alice to be an abstract idea. Nevertheless, the claim, considered as a whole, is patentable subject matter even though it includes printed matter if that printed matter is functional with respect to the underlying subject matter so as to transform the printed matter/substrate combination into a practical and patentable application.
Confusion about what an abstract idea is? Not with me there isn’t. An abstract idea is a concept articulated in and by the mind of a person. Its antonym is a concrete (as in tangible) device. Edward Heller’s @11 “I think at a minimum it must be directed to something that is neither a machine, manufacture or composition” covers that.
A mathematical formula is an abstract idea. A computer device receiving input signals and generating output signals determined in accordance with the mathematical formula is a concrete device. That computer device may be conventional or obvious, but it is not an abstract idea and it never was. In common understanding there is no dispute about that.
Judge Newman’s concurring opinion in BASCOM appears to be an attempt to shake off the ridiculous use of the term “abstract idea” as redefined from its common meaning (in 1984-like fashion) by SCOTUS.
The Alice decision is by justices who give an appearance of having little grasp of modern science and technology or methodology of science. Like with some other (but not all) elderly people and some current politicians, Alice seems to reflect a desire to maintain earlier and simpler standards. But that simple time has gone and it will get worse and more theoretical in inventions because of computers and yes, by applying extremely abstract ideas to computers. That is why I find Judge Newton’s opinion right on the mark and in line what is going on in the field of science and technology.
If you are going to discuss the printed matter doctrine, may I suggest that you at least get the doctrine correct and include the exceptions (that control in software cases) to that judicial doctrine.
After all, the omission that you make (functionally related) is the very reason why the “ware” that is software is pursued in the first place.
Let’s have none of your prevarications and such critical omissions here.
“that printed matter is functional with respect to the underlying subject matter“…?
If you have an example of such software that is (somehow) not so functional, I will show you someone who does not know what software is.
May I add my thanks for this paper which is a very valuable contribution to the debate and will become a key reference for me.
@11 Edward (the local anti-patent judicial activist) and @14: I agree Anon. Edward is intellectually dishonest and consistently misrepresents science and case law.
Prior to 1952, while the courts still had the authority to define the word “invention” through the power of common law rule making (a power provided to the courts by an earlier Congress), that MAY have been true.
Congress changed that in 1952 by withdrawing that authority and in the place of the word “invention” (which the courts – much like today’s Court, simply would not define the word – think “abstract,” or “sufficiently more”) set out on a different path by carving out of what was a single paragraph an entirely new set of law: 103 and obviousness.
To do as the authors here have done, to imply that current Court has some authority that they no longer have is to only prolong the misery and mashing of the wax nose of 101.
This area of law needs to take care and note these historical subtleties. We need to learn the past lessons of history so that we do not make the same mistakes over and over and over again.
Of course, what would truly help prevent this type of mistake – no matter what other words that Congress may come up with – would be jurisdiction stripping of the non-original jurisdiction of hearing patent cases from the Supreme Court.
Data storage is only abstract to the folks who are clueless about how it works, like the SCOTUS. Real, physical storage devices are ALWAYS required, not abstract ideas and pixie dust. For example, present day hard disk drives and DVDs work because binary data is stored as a magnetic field on a disk, a hole in an optical media, changes in circuitry, etc. These are all changes to real devices.
In exactly the same way the mere abstract idea of being able to wash up at home is made real by plumbing, the abstract idea of retaining information is made real by electronic hardware and software for storing digitized data. Improvements to plumbing and improvements to data storage require changes to real devices, not merely wishful abstract ideas.


UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JASON GREER, Defendant - Appellant.
Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.
Jason Greer appeals from the district court's judgment denying him relief on his second motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. Greer sought to invalidate his sentence to the extent that it was based on his status as a career offender under the advisory Sentencing Guidelines. Greer's claim is foreclosed by the Supreme Court's decision in Beckles v. United States, __ U.S. __, 137 S. Ct. 886 (2017). Consequently, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's judgment.
“Greer was convicted following a guilty plea of one count of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d). The district court sentenced him to 188 months' imprisonment, followed by a five-year term of supervised release.” United States v. Greer, 85 F. App'x 181, 181-82 (10th Cir. 2004) (Greer I) (unpublished). The district court based Greer's sentence, in part, on a finding that he qualified as a career offender under the advisory Sentencing Guidelines because he had at least two prior felony convictions for crimes of violence. See id. at 182; U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm'n 2002) (USSG). We dismissed his direct appeal. See Greer I, 85 F. App'x at 184. And the district court denied his first § 2255 motion.
In 2016, Greer moved for authorization to file a second § 2255 motion based upon the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Johnson voided, in part, the definition of a qualifying “violent felony” used for sentence enhancement under the Armed Career Criminal Act (ACCA). Id. at 2563. The Supreme Court held that the “residual clause” in the definition—covering crimes “involv[ing] conduct that presents a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii)—violated the constitutional prohibition against vague criminal laws and that an increased sentence based on that clause violates a defendant's right to due process. Johnson, 135 S. Ct. at 2557, 2563. In Welch v. United States, __ U.S. __, 136 S. Ct. 1257, 1268 (2016), the Court made Johnson's holding retroactive to cases on collateral review.
This court extended Johnson's holding to identical residual-clause language previously used to define “crime of violence” in the career-offender guideline, USSG § 4B1.2(a)(2). See United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir. 2015). We authorized Greer to file a second § 2255 motion challenging his career-offender sentence because at least one of his prior convictions qualified as a crime of violence under the residual-clause definition in § 4B1.2(a)(2). See In re Greer, No. 16-1179, slip op. at 1 (10th Cir. May 13, 2016); see also In re Encinias, 821 F.3d 1224, 1226 (10th Cir. 2016) (challenge to a sentence that was enhanced based on the residual clause in § 4B1.2(a)(2) is “sufficiently based on Johnson to permit authorization under § 2255(h)(2)”).
The district court denied Greer's second § 2255 motion. It held that he still had at least two prior convictions that qualified as crimes of violence as defined in the Guidelines without applying the residual clause. The district court granted Greer a certificate of appealability. “We review the district court's legal rulings on a § 2255 motion de novo and it findings of fact for clear error.” United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (internal quotation marks and alteration omitted).
Unlike the ACCA, ․ the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness.
Id. at 892. Thus, Beckles forecloses any claim that a Guidelines provision is subject to a vagueness challenge. Greer's claim that his sentence is invalid because § 4B1.2(a)(2)'s residual clause is void for vagueness fails as a matter of law.


text:
This article is to be read in conjunction with the EDAL case summary.
The right to work and access the labour market is integral to human dignity, individual autonomy and self-esteem. Studies show that accessing the labour market during an asylum procedure is not only beneficial for protection applicants themselves but also for the host society in terms of improving integration prospects and wider economic benefits such as taxation. Evidence demonstrates that a strict prohibition on employment can have negative consequences on the mental health of applicants by way of enforced idleness, poverty and social exclusion. Prolonged absences from employment in terms of recognition of individual skills and qualifications makes it even more difficult to access the labour market once a person has been recognised as a refugee or subsidiary protection beneficiary.
Ireland is only one of two EU Member States (the other being Lithuania) which explicitly prohibit employment during the asylum procedure irrespective of the length of time spent in that procedure. This prohibition on work was placed on a legislative setting in Section 9 (4) of the Refugee Act 1996 on the Irish government’s position that access to the labour market would be a ‘pull factor.’ There has been no policy change on this issue since 1996 and in December 2016 the Minister for Justice Frances Fitzgerald, in response to a parliamentary question reaffirmed this in stating that “The key concern in this regard is that both the asylum process and the wider immigration system would be undermined by giving people who secure entry to the State, on foot of claims to asylum yet to be determined, the same access to employment as legal immigrants who follow the lawful route to employment.” This contention remains even though research studies clearly show no long-term correlation between labour market access and destination choice for international protection applicants.
The adverse consequences of such a prohibition over a long period of time are clear. The Health Service Executive (HSE) has reported the harmful impact of denying employment on the mental health of people in the Irish reception system of Direct Provision. Similarly, qualitative studies have demonstrated the negative effect on the psychologically well-being of applicants. Over the years UN bodies, organisations and human rights institutions have challenged the government on this issue and repeatedly called upon the Irish government to provide for the right to work for applicants in the asylum procedure. Now the Supreme Court will address this issue in the case of Minister for Justice and Equality v. N.H.V.
The case concerns a Burmese applicant, Mr. V. who has spent over seven years in the asylum procedure awaiting a final decision. He submitted that he is distressed and demoralised about being unable to work and is confined to a Direct Provision centre with an allowance of €19.10 per week (It should be noted that the weekly adult allowance of €19.10 has remained unchanged since Direct Provision was introduced in 2000. This is despite a recommendation from a Working Group to increase the allowance to €38.74). Mr. V. had previously been offered employment to work as a chef in the centre where he lives but this was prohibited as he had no permission to work in the State either pursuant to s. 4 of the Immigration Act 2004 or s. 9(1) of the Refugee Act 1996, as amended. The High Court held, which the Court of Appeal concurred with, that the applicant could not draw an entitlement to work from the Reception Conditions Directive, its recast Directive or the Charter of Fundamental Rights on the basis that Ireland had not opted into those Directives, was therefore not bound by them and accordingly the provisions of the Charter had no application in this case. The Court also held that the prohibition under s. 9 of the Refugee Act was compatible with the Article 8 ECHR jurisprudence on private life. The Court of Appeal agreed with this and found that the applicant, on account of his status as an asylum seeker, was unable to avail of the protection under Article 40.3.1. of the Irish Constitution to work or earn a livelihood in the State. The Court of Appeal stated that “Whilst I recognise that work or earning a livelihood may not be solely concerned with an economic activity but may also contribute to a person’s sense of dignity or well-being, nevertheless the inextricable link between a person’s status in the State and their right to work in the State is such that Article 40.3 cannot be construed as giving to an applicant for asylum a constitutionally protected right to work or earn a livelihood within the State.” The Court granted leave to appeal to the Supreme Court in the interests of justice and as a matter of general public importance on the point of law regarding the Irish Constitution. The Irish Human Rights and Equality Commission (IHREC) were granted leave to appear as amicus curiae in the proceedings.
The essential question pending before the Supreme Court is whether applicants who seek international protection have an entitlement to work pending the determination of their application, especially where the application has been beset by considerable delays.
The Court of Appeal granted substantive leave to appeal to the Irish Supreme Court on the point of the right to work under Irish constitutional law but it is important to draw upon the State’s international obligations when referring to a personal inalienable right to work. Moreover, any limitations on the right to work must also be construed narrowly. This commentary will focus, therefore, on the European and international law aspect of access to the labour market for international protection applicants, in particular with respect to human dignity.
The right to work and connected rights such as equal pay for equal work are fundamental human rights based on the international legal framework in the Universal Declaration of Human Rights, the UN Convention on the Elimination of All Forms of Discrimination against Women and the International Covenant on Economic, Social and Cultural Rights as well as contained in the relevant ILO Conventions. In addition, the 1951 Refugee Convention itself contains three specific provisions relating to the employment rights of refugees (Article 17-19.) The Michigan Guidelines on the Right to Work also elaborates on the intersectionality of other rights with this right such as providing a dignified standard of living. Furthermore, within Europe, the European Social Charter, the European Convention on the Legal Status of Migrant Workers and the Charter of Fundamental Rights include specific provisions relating to the right to work as well as corresponding rights such as the right to good administration which may be of assistance for applicants of international protection in asserting their right to work in practice.
Ireland has neither opted into the recast Reception Conditions Directive nor its predecessor. A seemingly straightforward deduction would then be that it is not bound by the provision in the recast Directive to grant access to the labour market no later than nine months after the lodging of an application when a first instance decision has not been issued, which is the benchmark in that Directive. However, as a member of the Common European Asylum System (CEAS), Ireland is obliged to implement EU asylum policy and law in conformity with its international obligations as required in Article 78 TFEU. Asylum procedures do not operate in a vacuum from reception systems and as Ireland has opted into the Asylum Procedures Directive a person’s application should be examined in conditions which enable the swift identification of his or her protection needs in a fair and efficient system. Accordingly, there must be a conducive environment for examining protection needs (by analogy see The Lord Chancellor (appellant) v Detention Action (respondent) and the Secretary of State for the Home Department Civ 840). Enforced idleness for long periods of time does not assist protection applicants and removes their dignity and self-worth. An integrated holistic approach to the asylum system and the State’s human rights obligations is necessary.
The impact of the Irish reception system known as Direct Provision and the complete prohibition on employment may infringe other rights in addition to the right to work such as the obligation to respect and protect the human dignity of applicants under Article 1 of the Charter of Fundamental Rights and the prohibition on inhuman and degrading treatment under Article 3 ECHR and Article 4 of the Charter especially when denying employment rights has a negative effect on a person’s mental and physical health and infringes a person’s human dignity. In this respect the South African Supreme Court of Appeal in Minister of Home Affairs and Others v. Watchenuka and Another held that “the freedom to engage in productive work – even where that is not required in order to survive – is indeed an important component of human dignity…for mankind is pre-eminently a social species with an instinct for meaningful association.“ A policy decision premised on a flawed assumption that access to the labour market is a ‘pull factor’ has led to this situation but as the German Constitutional Court has stated human dignity may not be relativized by migration-policy considerations (see further ECtHR M.S.S. v. Belgium and Greece; Hirsi Jamaa and Others v. Italy “having regard to the absolute character of Article 3, an increasing influx of migrants cannot absolve a State of its obligations under that provision”).
In addition, the position of Ireland to opt-in or out of aspects of the CEAS is not fully aligned with the overarching objective of that system as stated by the Commission “In the EU, an area of open borders and freedom of movement, countries share the same fundamental values and States need to have a joint approach to guarantee high standards of protection for refugees.” Ireland is significantly out of step with its European counterparts who grant access to the labour market and cases such as Demir v Baykara v. Turkey (para 86) highlight that obligations may exist beyond strict adoption of legislation when it comes to universal common values and principles such as human dignity.
To conclude, there is an emerging international consensus that access to labour market should be granted for applicants in an asylum procedure within certain limits. The absolute prohibition on work in Irish law is in stark contrast to this and this ban is exacerbated by the fact that applicants spend a significantly longer period of time in the Irish asylum system then other EU Member States (According to a Working Group Report more than 55% of applicants have spent more than five years in the asylum system in Ireland). Delays in administrative decision making may also violate Article 8 ECHR private life rights as demonstrated in the recent European Court of Human Rights decision of B.A.C. v. Greece where a 12 year delay impacted an applicant’s right to work among other matters. With the commencement of the International Protection Act 2015 a single procedure will be introduced in Ireland which appears to permit the continuance of existing employment rights on other legal grounds for new applicants (See Section 16(6)). However, for people like Mr. V. and new applicants with no pre-existing employment rights they must await the outcome of this Supreme Court ruling. It is hoped that the Court reviews this prohibition on employment through the prism of the right to human dignity.
This journal entry is an expression of the author’s own views, and not those of EDAL or the Irish Refugee Council.

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


Dixon v. United Illuminating Co.
The claimant was represented by Donald C. Cousins, Esq., Cousins & Johnson, P.C., 2563 Main St., Stratford, CT 06497.
The respondents were represented by Andrew Cohen, Esq., Letizia & Ambrose, 1764 Litchfield Tpke., Suite 106, Woodbridge, CT 06525.
This Petition for Review from the February 28, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District was heard October 17, 1997 before a Compensation Review Board panel consisting of Commissioners James J. Metro, John A. Mastropietro and Stephen B. Delaney.
This claim for dependent death benefits on the part of Jeanine Dixon originates out of tragic circumstances. Kenneth Dixon, the late husband of the claimant, was employed by United Illuminating from 1970 to the date of his death on September 28, 1993. He took his own life by hanging himself in the hallway of his home. At the time of his death, the decedent still had an open, compensable workers’ compensation claim for injuries to his neck and back that occurred on July 24, 1987. The claimant contends this injury and its sequelae, including surgeries, chronic pain and depression, contributed substantially to the decedent’s decision to commit suicide, and that she is accordingly entitled to benefits under § 31-306 C.G.S. She had married the decedent in 1962, and they were wed until his death.
The trial commissioner elaborated upon the testimony of many witnesses in a painstakingly thorough decision in which she made hundreds of factual findings. Much discussion was given to the decedent’s lifelong battle with alcoholism, and the effect that it had on his depression and eventual suicide. The commissioner also noted testimony regarding the pain that the decedent chronically experienced because of his back and neck surgeries. She cited the testimony of the claimant, her son, four physicians, a nurse, a psychologist, two counselors, and a handful of the decedent’s co-workers in her findings. Ultimately, she adopted the testimony of the psychologist, Dr. Witte, who testified that she believed that the decedent’s alcoholism was a significant risk factor for suicide, and did not believe that he had been suffering continuous or inordinate pain. The trial commissioner concluded that the claimant had failed to prove that the decedent’s suicide was causally related to his 1987 compensable injury, and dismissed the claim. The claimant has appealed that decision.
The first issue we must address in this appeal is the claimant’s argument that the commissioner should not have relied on Dr. Witte’s testimony because she did not qualify as an expert in this case. The commissioner found that Dr. Witte was a clinical psychologist who earned her Ph.D. focusing on substance abuse, primarily alcoholism, and specialized in treating alcoholism and chronic pain, along with depression. She also noted that Dr. Witte spent a “substantial amount of time reviewing the files and preparing to provide this testimony.” She accepted Dr. Witte as an expert in the areas of clinical psychology and substance abuse, and ultimately relied on her testimony in reaching her decision.
The claimant argues, however, that the key issue in this case was specifically the role of the decedent’s chronic pain in contributing to his suicide. She contends that Dr. Witte is an expert in neither the etiology of suicide nor chronic pain, and that she lacks the medical expertise to assess whether the decedent suffered from chronic pain and whether it played a role in his death. These objections were repeatedly raised by the claimant at the formal hearing, but were overruled with respect to most of Dr. Witte’s testimony. See March 28, 1996 Transcript.
In general, the opinions of experts may be considered in workers’ compensation cases in accordance with the rules applicable in other actions, although § 31-298 allows a trial commissioner broader discretion to admit evidence than is prescribed by the common law or by statutory rules of evidence and procedure. Zawisza v. Quality Name Plate, Inc., 149 Conn. 115, 119 (1961); Harris v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp. Rev. Op. 357, 360, 3143 CRB-5-95-8 (June 26, 1996). The standard axiom counsels us that “whether a witness is qualified to testify as an expert is a matter that rests in the sound discretion of the trial court.” Rodriguez v. Petrilli, 34 Conn. App. 871, 876 (1994), citing DiBella v. Widlitz, 207 Conn. 194, 202 (1988). That exercise of discretion will not be disturbed on appeal unless it has been abused, or is clearly erroneous and involves a misconception of the law. Siladi v. McNamara, 164 Conn. 510, 513 (1973); Rodriguez, supra. Indeed, our Supreme Court once noted that “[w]hile it may be error to exclude the opinion of an expert, it is difficult to claim error in its admission because of the wide discretion allowed the trial court in ruling on this question.” Rogoff v. Southern New England Contractors Supply Co., Inc., 129 Conn. 687, 691 (1943). Again, the fact that this is a workers’ compensation case only serves to further widen the scope of the commissioner’s authority.
In Davis v. Margolis (a legal malpractice case), our Supreme Court stated the general standard for admitting expert testimony: the expert must demonstrate “a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.” Id., 215 Conn. 408, 416 (1990), quoting Siladi, supra. “It makes no difference whether the witness’ familiarity results from practical or academic experience. . . . Once the threshold question of usefulness to the jury has been satisfied, any other questions regarding the expert’s qualifications properly go to the weight, and not to the admissibility, of his testimony.” Davis, supra, 416-17. The “ultimate issue” in this case from the claimant’s point of view may have been whether the decedent’s suicide was linked to chronic pain, but it was certainly pivotal to explore other possible motivations that may have led the decedent to take his own life. Causation in this case cannot be determined in a vacuum.
To that end, the respondents brought in Dr. Witte. She explained her expertise in the areas of substance abuse and depression, which were clearly established as a possible cause of the decedent’s suicidal condition. She also stated that she had considerable experience with chronic pain patients. Transcript, p. 9-10. The type of people she reportedly focused on in her work bore a similarity to the decedent, and one would expect that she would have had insight into the decedent’s mental state, particularly after reviewing all of his records as she did. Transcript, p. 13-15. This provided a sufficient foundation for the introduction of her testimony into evidence regarding the cause of the decedent’s suicide. Dr. Witte did not have to be a suicide “specialist” to possess special knowledge in this area, nor did she have to be a medical doctor with experience treating chronic pain to discuss its impact on the claimant.
We recently stated in Harris, supra, that the testimony and reports of psychologists are admissible as evidence in a workers’ compensation case. “Any question of a psychologist’s competence to determine causation, for example, would be directed at the weight of that evidence rather than its initial admissibility.” Id., 360-61. The trial commissioner is undeniably the person charged with determining the credibility of witnesses and gauging the weight to give the testimony and reports of the medical experts in a workers’ compensation matter. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This fact-finding responsibility includes the authority to reject seemingly uncontradicted testimony, to accept portions of a witness’ testimony while rejecting other parts, and to overlook apparent inconsistencies in a person’s testimony. Jusiewicz, supra; Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335-36, 1592 CRB-5-92-12 (April 27, 1995).
This is an important point, because underlying the claimant’s argument is the assumption that the trial commissioner was required to credit the testimony of at least one of the physicians who testified in the claimant’s favor. In evaluating the “sufficiency” of Dr. Witte’s testimony, it is crucial to remember that the claimant had the burden of proving that the decedent’s compensable injury was related to his eventual suicide. The respondents did not have to disprove that fact.
The trial commissioner was undoubtedly impressed with Dr. Witte’s testimony, as she specifically adopted her analysis in the Finding and Dismissal. Dr. Witte was far more persuaded by the decedent’s history of alcohol abuse and its effects on his life than she was by the impact of any pain he may have experienced due to his compensable injury in 1987. Dr. Witte stated that her opinion that the 1987 injury was unrelated to his suicide was given with a reasonable degree of medical probability. That opinion was founded on the claimant’s long-standing battle with alcohol-related depression (which predated his compensable injury), and the personal problems that resulted from his family’s attempt to intervene by notifying the decedent’s employer about his drinking problem in late 1989. In Dr. Witte’s opinion, the decedent had shown the capacity to act impulsively and irrationally when he threatened his wife in March 1990, and records showed that he was drinking heavily at the time and had felt that his wife had betrayed him by discussing his alcohol abuse problem with United Illuminating. Although the decedent experienced bouts with physical pain afterward, the records showed that during the last six months of his life, he only missed one day of work, and was not on pain medication. Instead, he had been experiencing problems at work due to his inability to perform his duties properly, and was very worried about losing his job. The decedent had also kept a journal that noted a suicide attempt several weeks before his final, successful attempt, and did not mention pain as a reason for any of the problems at work. Dr. Witte did not believe that the evidence she reviewed demonstrated that pain caused by the decedent’s 1987 injury was much of a factor in his depression and suicide.
In our view, the trial commissioner was entitled to rely on Dr. Witte’s testimony in forming an opinion as to the compensability of the decedent’s suicide. Putting aside that testimony, however, the claimant would still have had to convince the trier to credit the testimony of the doctors linking the decedent’s injury-related pain to his suicide. The trier found that many of the doctors who testified or submitted reports did not fully review the decedent’s psychological history, and did not adequately discuss the decedent’s alcoholism as it related to his physical or emotional state. She also was not able to conclude from the record whether or not the decedent was abstinent from alcohol at the time of his death. The commissioner noted a history of denial as to the severity of the decedent’s alcohol abuse on the part of the claimant, thus calling into question the reliability of her testimony. Thus, even without Dr. Witte’s testimony, this board would not have the power to reverse the trial commissioner’s decision to disregard the testimony of Jeanine Dixon or the portions of the doctors’ reports that drew a connection between Kenneth Dixon’s suicide and his 1987 compensable injury. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra, 71. We do not have the authority to reverse the inferences that she drew from the evidence presented to her. Therefore, we do not believe it would be proper to disturb the commissioner’s factual findings.
The claimant also argues that the trial commissioner applied the wrong legal standard of proof to her claim. According to the claimant, the commissioner should have used the “substantial factor” test applied in Benlock v. New Haven Terminal/Cilco Terminal, 3034 CRB-4-95-4 (decided April 25, 1997), which allows for multiple causes of an injury, but instead used a test that improperly implied only one factor could be “substantial” in causing the decedent’s suicide. The claimant also states that the commissioner erroneously applied a “but-for” causation test that improperly placed a burden on the claimant to negate all other possibilities regarding causation of the suicide. We disagree with the claimant’s characterization of the findings.
Under Wilder v. Russell Library Co., 107 Conn. 56 (1927), the pre-eminent compensable suicide case in Connecticut, the question is whether the employment was a proximate cause of the disability. “Where such a claim is made, a commissioner must give careful consideration to all the circumstances in evidence . . . [including] those which have to do with . . . [the employee’s] personal characteristics, and with his conditions of life outside the employment. . . . Compensation is not to be awarded unless it is properly found that the insanity is traceable to the employment or its conditions . . . and that, had it not been for that employment or those conditions, it would not have occurred.” Id., 62. Although there were no allegations of insanity in this case, the fact that the decedent’s work-related injury allegedly led to his suicidal tendencies makes Wilder instructive here.
The commissioner found that the claimant “failed to prove by a preponderance of evidence that the decedent, Kenneth Dixon, suffered from a psychiatric condition and/or chronic pain syndrome which was causally related to the compensable July 24, 1987 work injury.” She also found that the evidence “failed to establish by a preponderance of evidence that but for his work-related injury Mr. Dixon would not have committed suicide.” The language of these legal conclusions reflects an exacting adherence by the trier to both the language of Wilder and the general standard of causation necessary under the Workers’ Compensation Act. We see no indication that the commissioner placed an inappropriate burden of proof on the claimant. Her statement that “the substantial continued lifelong alcohol abuse of Kenneth Dixon was the significant contributing factor in his alleged depression . . . and ultimately resulted in his suicide” does not bespeak a misunderstanding of the law. The trier was simply stating that she found only one significant cause of the decedent’s suicide, and it was not his compensable injury. That is not a conclusion this board can disturb on review. See Fair, supra; Webb, supra.
For the above reasons, we affirm the trial commissioner’s decision.


text:
With these provisions in force, one Bates, who lived in Troy, New York, and owned certain iron safes in Chicago, Illinois, in order to secure an existing debt to Van Buskirk and others, executed and delivered ( in the State of New York), to them, on the 3d of November, 1857, a chattel mortgage on the safes. Two days after this, one Green, also a creditor of Bates, sued out of the proper court of Illinois a writ of attachment, caused it to be levied on these safes, got [74 U.S. 139, 141] judgment in the attachment suit, and had the safes sold in satisfaction of his debt. At the time of the levy of this attachment the mortgage had not been recorded in Illinois; nor had possession of the property been delivered under it; nor had the attaching creditor notice of its existence. Green, Van Buskirk, and Bates were citizens of New York.
It was admitted on the record that the proceedings in attachment were regular and in conformity with the laws of Illinois; that the cases of Martin v. Dryden and Burnell v. Robertson, reported in the Illinois reports,1 rightly explained those laws; that Bates was the owner of the safes on the 3d of November, 1857, and that Green was a bon a fide creditor of Bates. After the levy of the attachment Green received notice of the mortgage, and the claim under it, and Van Buskirk and the others, mortgagees, were informed of the attachment; but they did not make themselves parties to it and contest the right of Green to levy on the safes, which they were auhorized by the laws of Illinois to do.
By statutes of Illinois,2 any creditor can sue out a writ of attachment against a non-resident debtor. Under this writ the officer takes possession of the debtor's property. If the debtor cannot be served with process, he receives notice by publication, and if he does not appear, the creditor, on proving his case, has judgment by default, and execution is issued to sell the property attached. These statutes further enact,3 that mortgages of personal property are void as against third persons, unless acknowledged and recorded, and unless the property be delivered to and remain with the mortgagee.
In this state of the law in Illinois, Van Buskirk sued Green in one of the inferior courts of New York, for taking and converting the safes, sold as already mentioned under the attachment. Green pleaded in bar the attachment proceedings in Illinois. But the court held that the law of New York was to govern the case, not the law of Illinois, though the property was situated there, and that by the law [74 U.S. 139, 142] of New York the title to the property passed on the execution and delivery of the mortgage, and took precedence of the subsequent attachment in Illinois. This judgment being affirmed in the highest court of the State of New York, Green, assuming that the 'faith and credit' which the judicial proceedings in courts of Illinois had by law and usage in that State, were denied to them by the decision just mentioned, took a writ of error to this court, conceiving the case of fall within the 25th section of the Judiciary Act, which gives a writ in cases where, in the highest State court, a clause of the Constitution of the United States is drawn in question, and the decision is against the right, title, or privilege specially set up.
The defence in the New York courts was, that the safes [74 U.S. 139, 143] were Bates's, and were seized and sold as his, under execution in an attachment suit against him. Thus, the leading question was the ownership at the time of the attachment. If the safes were then Bates's, the attachment took effect upon his title; but if they had already passed to his vendees, then the attachment process could not reach them. This leading question of previous ownership, and as to the effect of the sale, as against creditors, necessarily assumed that the Illinois suit and process had their full effect of establishing Green in the legal position of attaching creditor of Bates, and entitled, as such, to contest such sale. Whatever interest Bates had, that, it was admitted, was bound. The question was, whether he had any interest, a matter which did not depend on the record from Illinois, but on the fact whether the assignment was to be governed by the domicile of the owners or by the locus rei sitae. Full faith and credit was thus given to the record.
Messrs. A. J. Parker and Lyman Trumbull, contra, contended, that the position of the other side, now taken, was just as good an argument against the jurisdiction of the court in the case, as it was on the question of merits. In [74 U.S. 139, 144] effect it was the argument made on the motion to dismiss for want of jurisdiction. But this court had refused to dismiss, and so decided that the argument was unsound. The question now before the court had been really disposed of in the former case. And it was disposed of rightly.
In conclusion, we refer the court to the case of Guillander v. Howell, 9 decided by the Court of Appeals of the State of New York since the decision of this case. In that case the court seems to abandon the position it held in deciding the present case.
In Guillander v. Howell, the attaching creditor was a citizen [74 U.S. 139, 145] of the State in which he applied for the benefit of the attachment laws; while here he was a citizen of another State. This is a material point of distinction; for here the parties, as citizens of New York, were bound by its laws.
That the controversy in this case was substantially ended when this court refused10 to dismiss the writ of error for want of jurisdiction, is quite manifest by the effort which the learned counsel for the defendants in error now make, to escape the force of that decision.
The question raised on the motion to dismiss was, whether the Supreme Court of New York, in this case, had decided against a right which Green claimed under the Constitution, and an act of Congress. If it had, then this court had jurisdiction to entertain the writ of error, otherwise not.
It was insisted on the one said, and denied on the other, that the faith and credit which the judicial proceedings in the courts of the State of Illinois had by law and usage in that State, were denied to them by the Supreme Court of New York, in the decision which was rendered.
Whether this was so or not, could only be properly considered when the case came to be heard on its merits; but this court, in denial of the motion to dismiss, held that the Supreme Court of New York necessarily decided what effect the attachment proceedings in Illinois had by the law and usage in that State; and as it decided against the effect which Green claimed for them, this court had jurisdiction, under the clause of the Constitution which declares 'that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings in every other State,' and the act of Congress of 1790, which gives to those proceedings the same faith and credit in other States, that they have in the State in which they were rendered.
This decision, supported as it was by reason and authority, left for consideration, on the hearing of the case, the inquiry, [74 U.S. 139, 146] whether the Supreme Court of New York did give to the attachment proceedings in Illinois, the same effect they would have received in the courts of that State.
By the statutes of Illinois, any creditor can sue out a writ of attachment against a non-resident debtor, under which the officer is required to seize and take possession of the debtor's property, and if the debtor cannot be served with process, he is notified by publication, and if he does not appear, the creditor, on making proper proof, is entitled to a judgment by default for his claim, and a special execution is issued to sell the property attached. The judgment is not a lien upon any other property than that attached; nor can any other be taken in execution to satisfy it. These statutes further provide, that mortgages on personal property have no validity against the rights and interests of third persons, without being acknowledged and recorded, unless the property be delivered to and remain with the mortgagee.
The policy of the law in Illinois will not permit the owner of personal property to sell it and still continue in possession of it. If between the parties, without delivery, the sale is valid, it has no effect on third persons who, in good faith, get a lien on it; for an attaching creditor stands in the light of a purchaser, and as such will be protected. 12 But it is unnecessary to cite any other judicial decisions of that State but the cases of Martin v. Dryden,13 and Burnell v. Robertson,14 which are admitted in the record to be a true exposition of the laws of Illinois on the subject, to establish that there the [74 U.S. 139, 147] safes were subject to the process of attachment, and that the proceedings in attachment took precedence of the prior unrecorded mortgage from Bates.
If Green, at the date of the levy of his attachment, did not know of this mortgage, and subsequently perfected his attachment by judgment, execution, and sale, the attachment held the property, although at the date of the levy of the execution he did know of it. The lien he acquired, as a bon a fide creditor, when he levied his attachment without notice of the mortgage, he had the right to perfect and secure to himself, notwithstanding the fact that the mortgage existed, was known to him, before the judicial proceedings were completed. This doctrine has received the sanction of the highest court in Illinois through a long series of decisions, and may well be considered the settled policy of the State on the subject of the transfer of personal property. If so, the effect which the courts there would give to these proceedings in attachment, is too plain for controversy. It is clear, if Van Buskirk had selected Illinois, instead of New York, to test the liability of these safes to seizure and condemnation, on the same evidence and pleadings, their seizure and condemnation would have been justified.
It is true, the court in Illinois did not undertake to settle in the attachment suit the title to the property, for that question was not involved in it, but when the true state of the property was shown by other evidence, as was done in this suit, then it was obvious that by the laws of Illinois it could be seized in attachment as Bates's property.
In order to give due force and effect to a judicial proceeding, it is often necessary to show by evidence, outside of the record, the predicament of the property on which it operated. This was done in this case, and determined the effect the attachment proceedings in Illinois produced on the safes, which effect was denied to them by the Supreme Court of New York.
It should be borne in mind in the discussion of this case, that the record in the attachment suit was not used as the foundation of an action, but for purposes of defence. Of course Green could not sue Bates on it, because the court had no jurisdiction of his person; nor could it operate on any other property belonging to Bates than that which was attached. But, as by the law of Illinois, Bates was the owner of the iron safes when the writ of attachment was levied, and as Green could and did lawfully attach them to satisfy his debt in a court which had jurisdiction to render the judgment, and as the safes were lawfully sold to satisfy that judgment, it follows that when thus sold the right of property in them was changed, and the title to them became vested in the purchasers at the sale. And as the effect of the levy, judgment and sale is to protect Green if sued in the courts of Illinois, and these proceedings are produced for his own justification, it ought to require no argument to show that when sued in the court of another State for the same transaction, and he justifies in the same manner, that he is also protected. Any other rule would destroy all safety in derivative titles, and deny to a State the power to regulate the transfer of personal property within its limits and to subject such property to legal proceedings.
Attachment laws, to use the words of Chancellor Kent, 'are legal modes of acquiring title to property by operation of law.' They exist in every State for the furtherance of [74 U.S. 139, 149] justice, with more or less of liberality to creditors. And if the title acquired under the attachment laws of a State, and which is valid there, is not to be held valid in every other State, it were better that those laws were abolished, for they would prove to be but a snare and a delusion to the creditor.
It would seem to be unnecessary to continue this investigation further, but our great respect for the learned court [74 U.S. 139, 150] that pronounced the judgment in this case, induces us to notice the ground on which they rested their decision. It is, that the law of the State of New York is to govern this transaction, and not the law of the State of Illinois where the property was situated; and as, by the law of New York, Bates had no property in the safes at the date of the levy of the writ of attachment, therefore none could be acquired by the attachment. The theory of the case is, that the voluntary transfer of personal property is to be governed everywhere by the law of the owner's domicile, and this theory proceeds on the fiction of law that the domicile of the owner draws to it the personal estate which he owns wherever it may happen to be located. But this fiction is by no means of universal application, and as Judge Story says, 'yields whenever it is necessary for the purposes of justice that the actual situs of the thing should be examined.' It has yielded in New York on the power of the State to tax the personal property of one of her citizens, situated in a sister State,20 and always yields to 'laws for attaching the estate of non-residents, because such laws necessarily assume that property has a situs entirely distinct from the owner's domicile.' If New York cannot compel the personal property of Bates (one of her citizens) in Chicago to contribute to the expenses of her government, and if Bates had the legal right to own such property there, and was protected in its ownership by the laws of the State; and as the power to protect implies the right to regulate, it would seem to follow that the dominion of Illinois over the property was complete, and her right perfect to regulate its transfer and subject it to process and execution in her own way and by her own laws.
We do not propose to discuss the question how far the transfer of personal property lawful in the owner's domicile will be respected in the courts of the country where the property is located and a different rule of transfer prevails. [74 U.S. 139, 151] It is a vexed question, on which learned courts have differed; but after all there is no absolute right to have such transfer respected, and it is only on a principle of comity that it is ever allowed. And this principle of comity always yields when the laws and policy of the State where the property is located has prescribed a different rule of transfer with that of the State where the owner lives.
JUDGMENT FOR THE PLAINTIFF IN ERROR.
[ Footnote 1 ] 1 Gilman, 187; 5 Id. 282.
[ Footnote 2 ] Revised Statutes of 1845, p. 630, seq.
[ Footnote 4 ] Green v. Van Buskirk, 5 Wallace, 310.
[ Footnote 5 ] Sill v. Worswick, 1 H. Blackston, 690; 2 Kent, 376; Parsons v. Lyman, 20 New York, 103; Burlock v. Taylor, 16 Pickering, 335; Van Buskirk v. Hartford Ins. Co., 14 Connecticut, 583; Caskie v. Webster, 2 Wallace, Jr., 131.
[ Footnote 6 ] Martin v. Dryden, 1 Gilman, 212.
[ Footnote 7 ] Buck v. Colbath, 3 Wallace, 346.
[ Footnote 8 ] Christmas v. Russell, 5 Id. 290.
[ Footnote 9 ] 35 New York, 657.
[ Footnote 10 ] 5 Wallace, 312.
[ Footnote 11 ] Henderson v. Morgan, 26 Illinois, 431; Porter v. Dement, 35 Id. 479.
[ Footnote 12 ] Thornton v. Davenport, 1 Scammon, 296; Strawn v. Jones, 16 Illinois, 117.
[ Footnote 13 ] 1 Gilman, 187.
[ Footnote 14 ] 5 Id. 282.
[ Footnote 15 ] Mills v. Duryee, 7 Cranch, 481.
[ Footnote 16 ] 5 Wallace, 290.
[ Footnote 17 ] 1 Sandford Ch. 146.
[ Footnote 18 ] Cochran v. Fitch, 1 Sandford Ch. 146; Kane v. Cook, 8 California, 449.
[ Footnote 19 ] 6 Pickering, 232.
[ Footnote 20 ] The People ex. rel. Hoyt v. The Commissioner of Taxes, 23 New York, 225.
[ Footnote 21 ] 35 New York Reports, 657.

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


text:
(1) Brown v. Vawser, 102 E.R. 954; (1804) 4 East 584.
(2) Henfree v. Bromley (1805) 6 East 309; 102 E.R. 1305.
(3) Thompson v. Miller (1867) 15 W.R. 353.
(5) Kwasi v. Larbi  A.C. 164; (1953) 13 W.A.C.A. 76.
APPEAL from a decision of Smith Ag.J. on May 25, 1956, in the Land Court, Ashanti Judicial Division, reversing a decision of the Asantehene's Court `` A.2 '' given on November 30, 1955, which reversed a decision of the Odumasi-Konongo Native Court given on August 30, 1955, in favour of the defendants in an action to enforce an award given on a customary arbitration.
OLLENNU J. This is an appeal from a judgment of Smith A.J., as he then was, delivered in the Land Court, Kumasi, on May 25, 1956. The suit commenced in the Odumasi-Konongo Native Court by writ issued at the instance of the appellant. The claim, which is couched in the popular Native Court from, is in substance a claim for the enforcement of an award of an arbitration made by one Okyeame Kwame Adade, settling a boundary between adjoining lands of the plaintiff and the defendant. The Odumasi-Konongo Native Court dismissed the plaintiff's claim holding that no award was published by the arbitrator. That decision was reversed by the Asantehene's Court `` A.2 '' but was restored by the Land Court.
Whether there has been a valid award or not, upon those facts, is a question of law for the court to determine; the opinion of the arbitrator notwithstanding. Unfortunately both the trial Native Court and the Land Court allowed themselves to be unduly influenced by the opinion which the arbitrator expressed of the law and failed to direct themselves upon the law and to come to their own conclusions. The Asantehene's Court ``A.2 '' on the other hand properly directed themselves on the law and came to the conclusion that the arbitration was concluded because the arbitrators sufficiently published their decision, which turned out to be against the first defendant; and it was because of that indication that the defendants deliberately refused to go before the arbitration for the decision to be formally announced.
It was argued on behalf of the defendants that there was no valid arbitration the award of which could bind them, because no evidence was led that the respondents and the plaintiff agreed beforehand to submit their dispute to the arbitrators. I am not impressed with the argument. It is very rare for two people who are quarreling to meet and agree together that they would submit their dispute to arbitration. The usual thing is that one party makes a complaint to somebody, the other party is sent for, and if he agrees, the party to whom the complaint is made arbitrates upon the dispute. Whether a party agreed to submission to the arbitration or not is a question of fact in each case to be determined from the conduct of that party and other circumstance. In this case the first defendant attended the arbitration, gave evidence before it, agreed that the boundary which would be decided to be demarcated on the land, and paid the fees of 25s. to indicate that agreement. In my opinion all those facts prove voluntary submission to the arbitration by the respondent.
In my opinion this is misdirection. The decision which the arbitrators were called upon to make was the direction of the boundary which exists between the adjoining lands of the two parties. The most effective way of deciding a boundary is by demarcating it on the ground. That is what the arbitrators did in this case. In my opinion the arbitrators made that decision firmly and unequivocally the moment they determined what that boundary was to be and physically demarcated it in the presence and in the view of the parties. Formal oral pronouncement of that decision would add nothing material to that decision which the arbitrators thus made and which they made physically obvious to the contesting parties.
The question is: Is the decision which the arbitrators made any less a determination of the dispute, without it being formally published? Publication of an award is the communication of the decision of the arbitrators to the parties so as to make the arbitrator functus officio. It includes any steps taken to make the award known or available to the parties; it might take the form of an oral pronouncement at a meeting, it might be by a written decision transmitted by the arbitrators to the parties, and it might, as in this case, be made by some physical indications of the decision to the parties.
In my opinion that principle laid down in Thompson v. Miller (3) is properly applicable to an award of arbitration made in accordance with native custom.
The demarcation of the boundary and fixing of poles on that boundary are acts done, and external facts whereby the arbitrator indicated that he had made up his mind, and also declared his final award, so as to make him become functus officio. If was when that final award was so published and thus became known to the respondents that the respondents refused to accept, and wanted their 25s. back; but having once submitted to the arbitration they are not entitled to resile: Kwasi v. Larbi (5).
For the reasons stated, I am of the opinion that both the trial Native Court and the Land Court misdirected themselves on the native law and custom in holding that award of the arbitrators was not published. I would therefore allow the appeal, set aside the judgment of the Land Court including the Order as to costs, restore the judgment of the Asantehene's Court ``A.2 `` and enter judgment for the plaintiff for a declaration that the boundary demarcated by Okyeame Kwame Adade is and shall remain the boundary between his land and the land of the defendant.
GRANVILLE SHARP J.A. I also concur.

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


Several new liability theories have emerged in litigation over leaking underground storage tanks ("LUSTs"). In light of these new theories, LUST parties in Illinois now must make several strategic decisions before following the litigation trail. These issues include whether to begin cleanup before filing suit, or delaying it until the close of litigation; whether the appropriate forum is federal / state court, or the Illinois Pollution Control Board; whether to add any common law, state or federal statutory claims which should be added; and whether to file a motion to dismiss or for summary judgment in response to a Resource Conservation and Recovery Act (RCRA) cost recovery complaint.
These issues continue to cause concern for current and former property owners facing the prospect of LUST litigation. Current liability issues likely arise from the fact that USTs can be difficult to locate, and before regulation owners commonly abandoned USTs in place, rather than removing them. [See, e.g., Grube v. Daun, 213 Wis.2d 533, 570 N.W.2d 851, 856 (Wis. 1997).] Long term property owners who purchased before mandated disclosures fear liability for unidentified USTs. Current owners have attempted to pass liability for tanks back to a prior owner, who may be more responsible for the presence of the tank. The United States Supreme Court was faced with such a scenario in Meghrig v. KFC Western, Inc., 516 U.S. 479, 116 S.Ct. 1251, 134 L.Ed.2d 922 (1996). The plaintiff in Meghrig discovered petroleum contamination while attempting to obtain a building permit. To complete construction on the property, the plaintiff was required to clean it up. Three years after later, the plaintiff sought reimbursement from the prior owner under the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. Former owners mistakenly believe themselves insulated from liability for activities they may have engaged in long before current environmental statutes existed.
Illinois courts have resisted expanding common law claims, which often conflict with the doctrine of caveat emptor, and the economic loss doctrine. However, both former and current property owners are potentially liable for contamination caused by LUSTs. Careful evaluation of litigation strategy will increase chances of prevailing in LUST lawsuits.
Property owners with LUSTs have relied upon both state and federal law for remedies that permit them to pass removal and remediation costs back to the prior tank owner. Because the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contains a petroleum exclusion, private parties have attempted to use RCRA as a cost recovery mechanism. RCRA's is even more attractive because it permits the recovery of attorney's fees, which creates increased leverage for the plaintiff and a corresponding increase in risk for a potentially liable party in a RCRA action.
Unfortunately for self-described "innocent landowners," courts have almost uniformly denied any cost recovery under RCRA. Until the ninth circuit's KFC Western decision, a number of courts had held that RCRA was not a cost recovery statute and that private parties, acting as "private attorneys general," could not benefit from RCRA relief. [See Furrer v. Brown, 62 F.3d 1092 (8th Cir. 1995).] The ninth circuit's opinion provided the United States Supreme Court an opportunity to interpret RCRA's citizen suit provision, and determine whether it permitted cost recovery.
The Meghrig Court reversed the Ninth Circuit, and held that because a private party is unable to allege an imminent and substantial endangerment, it cannot file suit under RCRA to recover remediation costs once the cleanup had been completed. Meghrig seemingly left open, however, whether RCRA would permit cost recovery if a property owner had incurred cleanup costs after the filing of a complaint.
In the wake of Meghrig, district courts, including the Northern District of Illinois, have held that a property owner cannot recover costs incurred even after filing a RCRA complaint. [Agricultural Excess & Surplus Ins. Co. v. A.B.D. Tank & Pump Co., No. 95 C 3681, 1996 WL 515088, at *3 (N.D. Ill. Sept. 6, 1996); Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609 (M.D. Pa. 1997); Express Car Wash Corp. v. Irinaga Bros., Inc., 967 F.Supp. 1188 (D. Or. 1997); Cross Oil Co. v. Phillips Petroleum Co., 944 F.Supp. 787 (D. Mo. 1996).] These post-Meghrig opinions have applied the United States Supreme Court's approach to interpreting RCRA, and have concluded that Congress did not intend RCRA to be a cost recovery statute. These opinions have held that a private party cannot rely upon RCRA to recover LUST remediation costs that it has incurred or will incur in the future.
the inherent loss of control in having a third party conducting a cleanup under an order from the court.
Because the federal environmental statutes do not provide reimbursement for LUST remediation, a current landowner will need to bring a state law claim against the prior owner to recover costs incurred remediating LUST contamination. Illinois courts have recently clarified the types of state law actions that can be used to recover against prior owners.
Recent cases have reviewed a plaintiff's ability to recover from a prior landowner under a number of these theories and have exposed pitfalls in these actions.
A landowner has some measure of protection under Illinois statutes, specifically the Contribution Act, and the Illinois Environmental Protection Act ("IEPA"). Recovery under Illinois statutes, however, can be limited because these statutes are not retrospective and would not assist a current landowner who has discovered a LUST that was left by a prior owner far back in the chain of title.
The Responsible Property Transfer Act which proported to protect recent property purchasers by requiring that the seller disclose any known hazardous wastes or underground tanks associated with the property was repealed in 2001. However, the repeal does not alter the disclosure requirements of the Illinois Residential Real Property Disclosure Act. Nor does the repeal change the requirements of Hazardousn Waste Disposal statutes of Illinois Residential Real Property Disclosure Act (415 ILCS 5/21 and 415 ILCS 5/39) which mandate that, "no person may transfer intereset in any land that has been used as a hazardous waste disposal site. . . "
In Lake County Forest Preserve District v. Ostro, PCB No. 92-80, 1994 Ill. Env. LEXIS 484 (Ill. Pollution Control Bd. Mar. 31, 1994, the Illinois Pollution Control Board held that the Illinois Environmental Protection Act authorized the Board to order a private party to reimburse another party for its remediation expenses. The Board based its opinion upon People v. Fiorini, in which the Illinois Supreme Court held that a court may have the authority to award response costs in a third party claim arising in an IEPA enforcement action.21 The Ostro decision appeared to create a relatively quick way for property owners to clean up LUSTs and pass the costs back to prior owners.
More recently, the Illinois Pollution Control Board has limited the reach of Ostro by holding that IEPA cannot be enforced retroactively to conduct that ended prior to the July 1, 1970 enactment of the IEPA. [Casanave v. Amoco Oil Co., PCB No. 97-84, 1997 Ill. Env. LEXIS 653 (Nov. 20, 1997).] In Casanave, the Board dismissed a claim against a defendant that allegedly left USTs on the property after it sold the land in 1952. The Board indicated that for liability to arise under the IEPA, a party would need to have owned or operated the UST after the enactment of the IEPA.
Further, a concurring opinion in Casanave had suggested that, based upon NBD Bank v. Krueger Ringier, Inc., the PCB may not have the authority to award cleanup costs. The NBD Bank court held that the IEPA does not create a private right of action for cost recovery as a tort claim, and that the statute was not designed to protect parties to a real estate transaction. The court thereby distinguished both Fiorini and Brockman, which permitted third party claims in enforcement actions brought by the State. For a brief time, the Casanave decision appeared to present a basis to challenge the Board's authority to award response costs.
Shortly after Casanave, the Board responded to the assertion that NBD Bank may have foreclosed its ability to award cleanup costs to a private party bringing an enforcement action under the IEPA. In Malina v. Day, the owner of a former gasoline station brought an action against a prior property owner, alleging that the respondent left LUSTs on the property in violation of 415 ILCS 5/21.29 The complainant sought reimbursement for remediation costs that had been incurred at the site.
The Board noted that while NBD Bank may preclude an implied tort action under the IEPA, the decision did not affect the remedies available in an action properly before the Board pursuant to its statutory authority. The Board stated that it "has consistently held that such [cleanup] costs are a potential remedy" and that it "finds nothing in the NBD court's decision which affects" these holdings. Therefore, an action before the Board appears to remain a viable mechanism to recover cleanup costs from a post-1970 owner of a LUST.
Illinois courts have traditionally permitted parties to bring environmental cost recovery claims under the Illinois Contribution Act. [People v. Brockman, 143 Ill.2d 351, 574 N.E.2d 626 (Ill. 1991).] These cases demonstrate that Contribution Act claims are not limited to third-party actions attendant to enforcement actions brought by the State. Rather, these claims merely require potential liability under the IEPA. Because these claims can be brought in voluntary cleanups, they will likely be a popular method for parties seeking reimbursement from prior landowners.
However, one limitation on a Contribution Act claim is that by the terms of the statute, the conduct creating the liability must have occurred after March 1, 1978. Therefore, unless a plaintiff can show that its cause of action accrued after this date, he or she cannot bring a claim under the Act. [See, e.g., Village of Fox River Grove v. Grayhill, Inc., 806 F.Supp. 785, 795 (N.D. Ill. 1992)(no claim against party that disposed of chemicals on property in 1972).
When a current owner suspects that USTs were left by a party too far back in the chain of title to permit a statutory claim, and no contract existed with the prior owner, the current owner may attempt to recover through a tort based claim. Recent opinions from state and federal courts in Illinois provide guidance regarding various common law claims and potential successful defenses to defeat a tort claim by a current landowner.
Illinois courts do not permit a current owner to state a claim for either nuisance or trespass against a prior owner. Although California's nuisance statute has been interpreted to permit a current owner to claim that hazardous substances left by the prior owner are a current "nuisance," Illinois courts have rejected similar arguments. Because the California courts permitted such a claim under a California negligence statute, rather than the common law, at least one court has held that the California opinion is not persuasive in support of a common law nuisance claim. Therefore, it appears that Illinois courts will not alter their position that a current owner cannot bring a nuisance action for a UST left by a prior owner.
As these opinions demonstrate, the common law required the purchaser of real estate to bear the risk of defects. Courts have resisted attempts to shift that burden further than environmental statutes permit. Therefore plaintiffs cannot base a negligence claim against a prior landowner on the fact that the prior owner left tanks on the property.
Even if a current owner could plead a duty owed by the prior owner, he or she still might be unable to state a claim for recoverable damages. Illinois has adopted the Restatement of Torts (Second) section 352, which limits liability of the seller to physical harm caused by undisclosed and undiscovered hazardous conditions existing at time of sale. Illinois courts have therefore concluded that a plaintiff does not have a claim for tort damages for an undisclosed condition, e.g., a leaking underground storage tank left by the prior owner. Courts have categorized contamination left by a prior owner as a claim for inadequate value or a failure to perform as anticipated, and remediation costs to be a cost or repair or replacement.
Illinois courts have adopted section 106 of the Restatement of Restitution, which denies an unjust enrichment claim against a party that was an incidental beneficiary of the current landowner's duty to act. Therefore, a current property owner's duty to remediate LUST contamination would preclude a claim for unjust enrichment. In addition to situations in which the current landowner remediates the property pursuant to an administrative order, section 106 may be applicable when a current landowner has created a contractual obligation to remediate the property through a purchase agreement.
Recent judicial opinions demonstrate that a current property owner must carefully consider the available options when faced with liability for a past owner's LUST. Although recent opinions do not offer complete immunity for prior owners, some avenues for cost recovery, such as RCRA, appear to be foreclosed. Because RCRA cost recovery appears to be unavailable, parties will need to rely upon state court actions in most instances. As the Illinois Appellate Court demonstrated in NBD Bank, potential recoveries also may be limited by the economic loss and caveat emptor doctrines.
The scope of recovery for a current property owner faced with a LUST problem continues to be defined by LUST litigation. In Illinois, property owners must be apprised of these developments before deciding how to approach a LUST problem.


text:
1. Auster, U., W. Magnes, M. Delva, A. Valavanoglou, S. Leitner, O. Hillenmaier, C. Strauch, P. Brown, B. Whiteside, M. Bendyk, A. Hilgers, S. Kraft, J.P. Luntama, J. Seon: Space weather magnetometer set with automated AC spacecraft field correction for Geo-Kompsat-2A, In: Proceedings of the 2016 ESA Workshop on Aerospace EMC, Eds. Ouwehand, L., IEEE, New York, NY, 1-6, doi:10.1109/AeroEMC.2016.7504585, 2016.
2. Denisenko, V.V., M.Y. Boudjada, H. Lammer: Analysis of mathematical models of quasi-stationary electric field penetration from Earth's surface to the ionosphere, In: Proceedings of the 11th Intl. School and Conference “Problems of Geocosmos”, Oct. 03-07, 2016, St.Petersburg, Russia, Eds. Semenov, V.S., M.V. Kholeva, S.V. Apatenkov, N.Yu. Bobrov, A.A. Kosterov, A.A. Samsonov, N.A. Smirnova, T.B. Yanovskaya, VVM Publishing, St. Petersburg, 146-152, 2016.
3. Eichelberger, H., G. Fremuth, G. Prattes, C. Kürbisch, G. Laky, F. Giner, S. Neukirchner, R. Wallner, H. Jeszenszky, M. Leichtfried, J.J. Berthelier, K. Torkar, H.I.M. Lichtenegger: BepiColombo-MPO-Serena-PICAM EMC measurements, In: Proceedings of the 2016 ESA Workshop on Aerospace EMC, Eds. Ouwehand, L., IEEE, New York, NY, 1-4, doi:10.1109/AeroEMC.2016.7504548, 2016.
4. Ferrao, R.C., S.R. Augusto, C. Berni, F.R.F. dos Santos, V.C. Parro, P. Plasson, L. Gueguen, S. Finco, G. Peter, M. Steller: Multi-purpose simulator for Plato mission, In: Proc. of the 7th International SpaceWire Conference (SpaceWire 2016), IEEE, Bellingham, WA, 1-4, doi:10.1109/SpaceWire.2016.7771637, 2016.
5. Focardi, M., S. Pezzuto, R. Cosentino, G. Giusi, M. Pancrazzi, V. Noce, R. Ottensamer, M. Steller, A.M. Di Giorgio, E. Pace, P. Plasson, G. Peter, I. Pagano: The Instrument Control Unit of the ESA-PLATO 2.0 mission, In: Space Telescopes and Instrumentation 2016: Optical, Infrared, and Millimeter Wave. Proc. of SPIE, Vol. 9904, Eds. H.A. MacEwen, G.G. Fazio, M. Lystrup, SPIE, Bellingham, WA, 15 p., doi:10.1117/12.2231658, 2016.
6. Konovalenko, A., P. Zarka, V. Zakharenko, O. Ulyanov, M. Sydorchuk, S. Stepkin, P. Tokarskyy, A. Stanislavski, M. Kalinichenko, V. Kolyadin, V. Melnik, W. Dorovskyy, V. Shepelev, A. Koval, I. Bubnov, S. Yerin, K. Mylostna, J. Vasiliev, V. Bortsov, V. Kulishenko, V. Lisachenko, A. Reznichenko, G. Kvasov, A. Hristenko, G. Litvynenko, H.O. Rucker, M. Panchenko, G. Fischer, L. Denis, A. Coffre, J.-M. Grießmeier, M. Tagger, J.N. Girard, D. Charrier, V. Ryabov, G. Mann, A. Brazhenko V. Koshovyy: Current status of low frequency radio astronomy in Ukraine: Ground-based and ground-space investigations, In: Space Research in Ukraine, Eds. Fedorov, O.P., Akademperiodika, Kiew, 64-70, 2016.
7. Petrukovich, A., A. Artemyev, I. Vasko, R. Nakamura, L. Zelenyi: Current sheets in the Earth magnetotail: Plasma and magnetic field structure with Cluster project Observations, In: Multi-scale Structure Formation and Dynamics in Cosmic Plasmas, Eds. Balogh, A., A. Bykov, J. Eastwood, J. Kaastra, Springer-Verlag, New York, 331-357, doi:10.1007/978-1-4939-3547-5_11, 2016.
8. Petrukovich, A., A. Artemyev, R. Nakamura: Magnetotail reconnection, In: Magnetic Reconnection. Concepts and Applications, Eds. Gonzalez, W., E. Parker, Springer, Switzerland, 277-313, doi:10.1007/978-3-319-26432-5_7, 2016.
9. Plaschke, F.: ULF waves at the magnetopause, In: Low-Frequency Waves in Space Plasmas (Geophysical Monograph 216), Eds. Keiling, A., D.-H. Lee, V. Nakariakov, American Geophysical Union, Washington, DC, 195-212, 2016.
10. Plattner, M., S. Albrecht, J. Bayer, S. Brandt, P. Drumm, O. Hälker, F. Kerschbaum, A. Koch, I. Kuvvetli, N. Meidinger, S. Ott, R. Ottensamer, J. Reiffers, T. Schanz, K. Skup, M. Steller, C. Tenzer, C. Thomas: WFI electronics and on-board data processing, In: Proc of Spie Vol. 9905: Space Telescopes and Instrumentation 2016: Ultraviolet to Gamma Ray, Eds. den Herder, J.-W.A., T. Takahashi, M. Bautz, SPIE, Bellingham, WA, 99052D, doi:10.1117/12.2235375, 2016.
11. Pollinger, A., W. Magnes, C. Hagen, R. Lammegger, M. Ellmeier, I. Jernej, W. Baumjohann: Characterisation of the Coupled Dark State magnetometer in the Earth's field, COBS J., 4, 20, 2016.
12. Soucek, J., L. Ahlen, S. Bale, J. Bonnell, N. Boudin, D. Brienza, C. Carr, F. Cipriani, C.P. Escoubet, A. Fazakerley, M. Gehler, V. Génot, A. Hilgers, B. Hanock, G. Jannet, A. Junge, Y. Khotyaintsev, J. De Keyser, H. Kucharek, R. Lan, B. Lavraud, F. Leblanc, W. Magnes, M. Mansour, M.F. Marcucci, R. Nakamura, Z. Nemecek, C. Owen, Y. Phal, A. Retino, D. Rodgers, J. Safrankova, F. Sahraoui, R. Vainio, R. Wimmer-Schweingruber, J. Steinhagen, A. Vaivads, A. Wielders, A. Zaslavsky: EMC aspects of turbulence heating observer (THOR) spacecraft, In: Proceedings of the 2016 ESA Workshop on Aerospace EMC, Eds. Ouwehand, L., IEEE, New York, NY, 1-4, doi:10.1109/AeroEMC.2016.7504544, 2016.
13. Volwerk, M.: ULF wave modes in the Earth’s magnetotail, In: Low-Frequency Waves in Space Plasmas (Geophysical Monograph 216), Eds. Keiling, A., D.-H. Lee, V. Nakariakov, American Geophysical Union, Washington, DC, 141-160, 2016.

matches: V. V. V. V. V. V. V. V. V. V. V. V. V.


text:
Our nationally known communications, mobile, and technology attorneys are sought after for litigation matters, because we never forget to know the audience. For judges with busy dockets and limited telecommunications experience, we work hard to leave telecom’s acronym soup at the door and explain in plain English (and pictures, if necessary) why our clients should win.
With administrative agencies, we can speak the industry parlance fluently and focus on why the facts, law, and policy dictate a ruling in your favor. We’re also sought after because we never forget that we have to provide value. We’re intelligently aggressive – we make the best case clearly, so we do not distract from the real issues, or spend undue time in discovery fights that prevent an efficient resolution of the case.
We serve as trial and appellate counsel in a diverse array of telecommunications matters throughout the country. Our attorneys have acted as lead appellate counsel before the federal courts of appeals and lead trial counsel in a variety of federal and state judicial and administrative proceedings. We have represented carriers and service providers in cases against private parties or the government in federal and state courts, and we have substantial experience litigating formal and informal complaints before the FCC and state public utilities commissions. Our experience has given us the technological understanding, policy experience, and litigation tools to provide comprehensive counsel and advocacy in any litigation forum that your company may need.
Global Tel*Link, et al. v. FCC, 859 F.3d 39, amended and superseded, 866 F.3d 397 (D.C. Cir. 2017): Successful appeal from the Second Inmate Calling Services Order resulting in vacatur or reversal of several key rules and findings.
Hypercube, LLC v. Level 3 Communications, LLC (Cal. P.U.C. 2011): Attained reconsideration order vacating and remanding an administrative law judge’s decision on tariff based charges for exchange access service to toll free telephone numbers.
Northern Valley Communications v. FCC, et al., No. 11-1467 (DC Cir. filed Dec. 1, 2011): Challenging FCC orders relating to interstate access service tariffs.
Verizon Maryland Inc. v. Core Communications, Inc., 2010 WL 5189455 (4th Cir. 2010): Obtained an opinion holding that Verizon breached its interconnection agreement with Core as a matter of law for failing to provide nondiscriminatory interconnection at a technically feasible point.
Paetec Communications, Inc. v. CommPartners, LLC, 2010 WL 1767193 (D.D.C. 2010): Obtained an opinion on summary judgment that VoIP traffic exchanged between local exchange carriers is not subject to legacy access regulation.
Club Texting, Inc. d/b/a EZ Texting, Inc. v. T-Mobile USA, LLC (S.D.N.Y. 2010): Secured prompt, favorable settlement for mobile marketing company that had its shared short code blocked by a wireless carrier.
In re Core Communications, Inc., 531 F.3d 849 (D.C. Cir. 2008): Obtained a writ of mandamus to the FCC to respond to the court’s earlier remand regarding intercarrier compensation for telecommunications traffic terminated to Internet service providers.
Hypercube, LLC v. Comtel Telcom Assets d/b/a Excel Telecommunications, Inc. (N.D. Tex. 2008): Secured favorable settlement of dispute arising out of client’s provision of federal and state tariffed access services predominantly in connection with toll free calls made by wireless users.

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