UNITED STATES of America, Plaintiff–Appellee, v. Darnell JACKSON, Defendant–Appellant.
Emily Kathleen Cremeans, Attorney, Office of the United States Attorney, Hammond, IN, Donald J. Schmid, Attorney, Office of the United States Attorney, South Bend, IN, for Plaintiff–Appellee. William J. Stevens, Attorney, Bridgman, MI, for Defendant–Appellant.
Darnell Jackson unlawfully possessed a firearm for a period of two to three weeks before selling it to someone whose own possession of the gun was illegal. At sentencing, the district court enhanced Jackson's offense level based on its finding that Jackson had transferred the gun with knowledge or reason to believe it would be possessed “in connection with another felony offense,” i.e., the transferee's illegal possession of the gun. SeeU.S.S.G. § 2K2.1(b)(6)(B) (Nov.2012). Jackson contends that the enhancement was improper in that it essentially penalized him a second time for conduct that was otherwise encompassed within his conviction. We affirm.
In January 2011, Jackson's friend Carlia Wells purchased a nine-millimeter Ruger pistol. In March, Jackson took the pistol from Wells' home. Having previously been convicted of multiple felonies, Jackson's possession of the gun was illegal. See18 U.S.C. § 922(g)(1). Two to three weeks after he took the pistol from Wells, Jackson sold the weapon (or facilitated its sale) to David Dircks, whom Jackson knew to be an illegal user of crack cocaine and heroin. A grand jury later charged Wells, Dircks, Jackson, and a fourth individual with various weapons offenses; the indictment charged Jackson with his unlawful possession of the pistol as a convicted felon, in violation of section 922(g)(1).
On the morning that his trial was to begin, Jackson pleaded guilty to the felon-in-possession charge without a written plea agreement. At sentencing, the court found Jackson's final, adjusted offense level to be 17. This included a four-level enhancement under Guidelines section 2K2.1(b)(6)(B) for transferring the firearm “with knowledge, intent or reason to believe that it would be used or possessed in connection with another felony offense.” The court found that Jackson's transfer of the gun to Dircks, a known felon and illegal drug user, facilitated the commission of a felony by Dircks, whose possession of the pistol was prohibited under both section 922(g)(1) (possession by a felon) and section 922(g)(3) (possession by an unlawful user of controlled substances). R. 132 at 2–3. Coupled with a criminal history category of VI (Jackson had a lengthy criminal record that the court described as “astonishing,” R. 132 at 6), the adjusted offense level of 17 resulted in an advisory sentencing range of 51 to 63 months in prison. Without the section 2K2.1(b)(6)(B) enhancement, the range would have been 33 to 41 months. Judge Miller opted to impose a within-Guidelines sentence of 60 months' imprisonment.
The sole issue to be resolved on appeal is whether the section 2K2.1(b)(6)(B) enhancement was correctly imposed. We find that it was.
“Another felony offense” [ ] for purposes of subsection (b)(6), means any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.
§ 2K2.1 cmt. n.14(C) (Nov.2006) (emphasis ours). The commentary now excludes from the definition of “another felony offense” only the possession or trafficking offense that serves as the basis for the defendant's conviction. United States v. Juarez, 626 F.3d 246, 255 (5th Cir.2010). In Jones, we therefore concluded that the enhancement applies, as here, when a defendant guilty of being a felon-in-possession has transferred the firearm to another prohibited person. See Jones, 528 Fed.Appx. at 632 (following Juarez, 626 F.3d at 255). Our decision in Jones was not precedential, but we find its rationale on this point (and that of the Fifth Circuit in Juarez ) persuasive and adopt it as binding precedent here. By selling the pistol to Dircks, whom he knew to be an unlawful user of controlled substances and thus someone who could not legally possess a firearm, Jackson transferred the pistol with knowledge or reason to believe that the gun would be used to commit another felony offense—Dircks's illegal possession of the same gun.
Jackson nonetheless argues that his transfer of the firearm to Dircks was not “another felony offense” separate and distinct from his possession offense, and that therefore the enhancement should not apply to him. Jackson contends that his conduct “was simply the firearms possession or trafficking offense and not another felony.” Jackson Brief at 11. He appears to assume that the transfer to Dircks involved no element beyond the offense of conviction, i.e., that his offense of conviction includes the transfer as well as the possession.
But section 922(g)(1) requires proof of possession only; the transfer of the firearm was a separate act neither necessary to nor subsumed within his conviction for possession. See United States v. Purifoy, 326 F.3d 879, 881 (7th Cir.2003) (defendant's act of pointing gun at police officer, which constituted aggravated assault, was a felony distinct from felon-in-possession offense for purposes of other felony offense enhancement); see also, e.g., United States v. Lane, 267 F.3d 715, 718–19 (7th Cir.2001) (act of holding gun sufficient to constitute unlawful possession for purposes of section 922(g)(1)); cf. United States v. Johns, 732 F.3d 736, 740 (7th Cir.2013) (in sentencing defendant for being a felon in possession, district court erred in applying trafficking enhancement, see§ 2K2.1 (b)(5), in addition to other felony offense enhancement, when both enhancements were based on same conduct—transfer of guns to confidential informant, whom defendant knew to be a convicted felon, with knowledge that informant intended to resell them).
Jackson alternatively posits that had he been charged with not only his possession of the gun under section 922(g), but also the transfer of the pistol to Dircks under 18 U.S.C. § 922(d) (making it a crime to transfer a firearm or ammunition to, inter alia, known felons or illegal drug users), the two charges would have been grouped at sentencing and treated as a single offense when calculating his offense level, and as a result of the grouping there would not be “another felony offense” to trigger the enhancement. See U.S.S.G. Chap. 3, Pt. D. Given that Jackson in fact was charged only with the possession offense, he reasons that it makes no sense to treat him more harshly by applying the enhancement.
But it is a mistake to assume that the enhancement would not apply were Jackson charged with and convicted of both crimes. Jackson is no doubt correct that the possession and transfer offenses would be grouped for sentencing purposes: Both are subject to the same firearms guideline, section 2K2.1, and section 3D1.2(d) specifies that offenses governed by section 2K2.1 are to be grouped. But although grouping is meant to avoid multiple punishments for the same conduct, see Mahalick, 498 F.3d at 481, it is not meant to ignore the specific offense characteristics that distinguish one defendant's criminal acts from those of another. Jackson's decision to sell the gun to an unlawful user of controlled substances is one such characteristic.
Were the possession and transfer offenses governed by different Chapter 2 guidelines, the court would determine the offense level for each offense separately and then apply the higher of the two levels to the group. See § 3D1.3(a) & comment. (n.2.). The section 2K2.1(b)(6)(B) enhancement would apply to the possession offense, as we have discussed, and if that rendered the offense level for the possession offense higher than the level for the transfer offense, the offense level for the possession offense would become the offense level for the group.
Here, both offenses are governed by the same guideline. But if the court were to follow the same approach, the enhancement would apply to the possession offense even if it would not apply to the transfer offense, as Jackson assumes; the resulting offense level for the possession offense, assuming it was the greater of the two, would then carry the day for the group. So we reasoned in Mahalick, where the defendant had been convicted of both possession and transfer offenses and contended that the other felony offense enhancement amounted to double counting because it punished the same behavior as his section 922(d) conviction for the transfer of the gun. 498 F.3d at 481–82. This is essentially the same argument that Jackson is making—that as to the transfer conviction, there would be no “other” felony offense to trigger the enhancement. Even if he is right, there would be another offense vis-á-vis the possession conviction, and if the offense level for that conviction alone turned out to be greater than the offense level for the transfer conviction alone, the former should logically apply to the two offenses grouped together. See id.; see also United States v. Schaal, 340 F.3d 196, 198–99 (4th Cir.2003) (enhancement for stolen firearm appropriate notwithstanding fact that stolen nature of the firearm was an element of 16 of 19 of grouped offenses).
Consider it from a second perspective. Given Jackson's prior conviction for a crime of violence, section 2K2.1(a)(4) specifies a base offense level of 20; and this would be his base offense level regardless of whether he were convicted of possession, transfer, or both. That particular offense level, however, turns on the defendant's criminal history alone; it does not take into account, as for example section 2K2.1(a)(6) does, whether the defendant may have transferred the gun to another person whose own possession of the gun amounts to a crime. So the enhancement specified by section 2K2.1(b)(6)(B) would capture an aspect of Jackson's conduct that his base offense level does not.
If we were to agree with Jackson that a second conviction for transfer of the gun would take the section 2K2.1(b)(6)(B) enhancement off the table, then we would be saying that the Guidelines would, in practice, treat one's unlawful possession and transfer of a firearm to another prohibited person no differently than simple possession of the gun. That would be both illogical and contrary to the spirit of the grouping rules. See Schaal, 340 F.3d at 198–99.
As we noted at argument, a sentencing judge is always able, given the advisory nature of the Guidelines and the sentencing criteria set forth in 18 U.S.C. § 3553, to determine that the defendant's offense level and sentencing range over- or under-represent the extent of his criminal conduct and to adjust the sentence accordingly. Judge Miller, in fact, gave thorough and thoughtful attention to how well the Guidelines range accurately accounted for Jackson's offense and criminal history and concluded that a within-range sentence was appropriate. R. 132 at 8–9. For all of the reasons we have discussed, we are not convinced that it was improper to enhance Jackson's offense level pursuant to section 2K2.1(b)(6)(B) based on his transfer of the gun to Dircks, or that the resulting sentencing range was out of proportion to his conduct.
By selling the Ruger pistol to Dircks, who like Jackson was prohibited from possessing a firearm, Jackson transferred the firearm in connection with a felony offense separate and distinct from the possession offense of which he was charged and convicted. Consequently, the district court properly increased Jackson's offense level pursuant to section 2K2.1(b)(6)(B). See Jones, 528 Fed.Appx. at 632. Finding no error in the calculation of Jackson's offense level, we AFFIRM his sentence.


text:
A. Any person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor.
B. Upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, petition, information, or indictment on which a person is convicted, that such person has been previously convicted of two offenses against a family or household member of (i) assault and battery against a family or household member in violation of this section, (ii) malicious wounding or unlawful wounding in violation of § 18.2-51, (iii) aggravated malicious wounding in violation of § 18.2-51.2, (iv) malicious bodily injury by means of a substance in violation of § 18.2-52, (v) strangulation in violation of § 18.2-51.6 , or (vi) an offense under the law of any other jurisdiction which has the same elements of any of the above offenses, in any combination, all of which occurred within a period of 20 years, and each of which occurred on a different date, such person is guilty of a Class 6 felony.
C. Whenever a warrant for a violation of this section is issued, the magistrate shall issue an emergency protective order as authorized by § 16.1-253.4 , except if the defendant is a minor, an emergency protective order shall not be required.
D. The definition of “family or household member” in § 16.1-228 applies to this section.

matches: § 18 § 18 § 18 § 18 § 16 § 16


text:
This page provides the published sources that were used in development of this website. Almost all are technical articles from scientific papers, but a few are aimed at a more general audience. Many are available via the internet.
Bambach, R.K., 2006. Phanerozoic biodiversity mass extinctions. Annual Review of Earth and Planetary Sciences, v. 34, pp. 127–155.
Barnosky, A.D., Matzke, N., Tomiya, S., Wogan, G.O.U., et al. 2011. Has the Earth’s sixth mass extinction already arrived? Nature, v. 270, pp. 51–57.
Dunn, R.R. 2005. Modern insect extinctions, the neglected majority. Conservation Biology, v. 19, pp. 1030–1036.
Harris, G. and Pimm, S.L. 2008. Range size and extinction risk in forest birds. Conservation Biology, v. 22, pp. 163–171.
Payne, J.L. and Finnegan, S. 2007. The effect of geographic range on extinction risk during background and mass extinction. Proceedings of the National Academy of Sciences, v. 104, pp. 10506–10511.
Pimm, S.L., Jones, H.L., and Diamond, J. 1988. On the risk of extinction. American Naturalist, v. 132, pp. 757–758.
Sheehan, P.M. 2001. The Late Ordovician mass extinction. Annual Review of Earth and Planetary Sciences, v. 29, pp. 331–364.
Brenchley, P.J., Carden, G.A., Hints, L., et al. 2003. High-resolution stable isotope stratigraphy of Upper Ordovician sequences: constraints on the timing of bioevents and environmental changes associated with mass extinction and glaciation. Bulletin of the Geological Society of America, v. 115, pp. 89–104.
Rong, J-Y., Boucot, A.J., Harper, D.A.T., Zhan, R-B. and Neuman, R.B. 2006. Global analysis of brachiopod faunas through the Ordovician and Silurian transition: reducing the role of the Lazarus effect. Canadian Journal of Earth Sciences, v. 43, pp. 23–39.
Copper, P., 2002. Reef development at the Frasnian/Famennian mass extinction boundary.Palaeogeography, Palaeoclimatology, Palaeoecology, v. 181, pp. 27–65.
Feist, R. 1991. The Late Devonian trilobite crises. Historical Biology, v. 5, pp. 197–214.
Payne, J.L, and Clapham, M.E. 2012. End-Permian mass extinction in the oceans: an ancient analogue for the twenty-first century?Annual Review of Earth and Planetary Sciences, v. 40, pp. 89–111.
Schulte, P., Alegret, L., Arenillas, I., Arz, J.A., et al. 2010. The Chicxulub asteroid impact and mass extinction at the Cretaceous-Paleogene boundary. Science, v. 327, pp. 1214–1218.
Schulte, P., Archibald, D.J., Courtillot, V., Keller, G., et al., 2010. Comment and reply on “The Chicxulub asteroid impact and mass extinction at the Cretaceous-Paleogene boundary”. Science, v. 328, pp. 973–976.
Barnosky, A.D., and Lindsay, E.L. 2010. Timing of Quaternary megafaunal extinction in South America in relation to human arrival and climate change. Quaternary International, v. 217, pp. 10–29.
Firestone, R.B., West, A., Kennett, J.P., et al. 2007. Evidence for an extraterrestrial impact 12,900 years ago that contributed to the megafaunal extinctions and the Younger Dryas cooling. Proceedings of the National Academy of Sciences, v. 104, pp. 16016–16021.
Koch, Pl. L., and Barnosky, A.D. 2006. Late Quaternary extinctions: state of the debate. Annual Review of Ecology and Systematics, v. 37. pp. 215–250.
McGlone, M. 2012. The hunters did it. Science, v. 335, pp. 1452–1453.
Schiermeier, Q. 2010. River reveals chilling tracks of ancient flood. Nature, v. 464, pp. 657.
Teller, J. 2012. Importance of freshwater injections into the Arctic Ocean in triggering the Younger Dryas cooling. Proceedings of the National Academy of Sciences, v. 109, pp. 19880–19881.
Diamond, J. 2000. Blitzkrieg against the moas. Science, v. 287, p. 2170–2171.
Elliot, G.P., Merton, D.V. and Jansen, P.W. 2001. Intensive management of a critically endangered species: the kakapo. Biological Conservation, v. 99, pp. 121–133.
Holdaway, R.N. and Jacomb, C. 2000. Rapid extinction of the moas (Aves: Dinornithformes): model, tests and implications. Science, v. 287, p. 2250–2254.
McGlone, M.S. 1989. The Polynesian settlement of New Zealand in relation to environmental and biotic changes. New Zealand Journal of Ecology, v. 12, p. 115–129.
McWethy, D.B., Whiclock, C, Wilmshurst, J.M., et al. 2010. Rapid landscape transformation in South Island, New Zealand, following initial Polynesian settlement. Proceedings of the National Academy of Sciences, v. 107, p. 21343–21348.
Towns, D.R., Parrish, G.R., Tyrrell, C.L., et al. 2007. Responses of Tuatara (Sphenodon punctatus) to removal of introduced Pacific rats from islands. Conservation Biology, v. 21 pp. 1021–1031.
Wood, J.R., Rawlence N.J., Rogers, G.M., et al. 2009. Coprolite deposits reveal the diet and ecology of the extinct megaherbivore moa (Aves, Dinornithiformes). Quaternary Science Reviews, v. 27, p. 2593–2602.
Avery, M.L., Engeman, R.M., Keacher, K.L., et al., 2010. Cold weather and the potential range of invasive Burmese pythons. Biological Invasions, v. 12, pp. 3649–3652.
Dorcas, M.E., Willson, J.D., Reed, R.N., et al. 2012. Severe mammal declines coincide with proliferation of invasive Burmese pythons in Everglades National Park. Proceedings of the National Academy of Sciences, v. 109, pp. 2418–2422.
Mackie, G.L. and Schloesser, D.W. 1996. Comparative biology of zebra mussels in Europe and North America: an overview. American Zoologist, v. 36. pp. 244–258.
Mazotti, F.J., Cherkiss, M.S., Hart, K.M., et al. 2011. Cold-induced mortality of invasive Burmese pythons in South Florida. Biological Invasions, v. 13, 143–151.
Reed, R.N., and Rodda, G.H. 2009. Giant constrictors: biological and management profiles, and an establishment risk assessment for nine large species of pythons, anacondas and the Boa Constrictor.US Geological Survey Open File Report 2009–1202, 323 p.
Ricciardi, A., Neves, R.J. and Rasmussen,J.B. 1998. Impending extinctions of North American freshwater mussels (Unionoida) following the zebra mussel (Dreissena polymorpha) invasion. Journal of Animal Ecology, v. 67, pp. 613–619.
Strayer, D.L. 2009. Twenty years of zebra mussels: lessons from the mollusk that made headlines.Frontiers in Ecology and the Environment, v. 7, pp. 135–141.
Bradshaw, C.J.A., Sodhi, N.S. and Brook, B.W. 2009. Tropical turmoil: a biodiversity tragedy in progress.Frontiers in Ecology and the Environment, v. 7, pp. 79–87.
Fitzhubert, E.B., Struebig, M.J., Morel, A., et al. 2008. How will oil palm expansion affect biodiversity?Trends in Ecology and Evolution, v. 23, pp. 538–545.
Koh, L.P. and Wilcove, D.S. 2008. Is oil palm agriculture really destroying tropical biodiversity?Conservation Letters, v. 1, pp. 60-64.
Sodhi, N. S., Koh, L.P., Brook, B.W. and Ng, P.K.L. 2004. Southeast Asian biodiversity: and impending disaster. Trends in Ecology and Evolution, v. 19, pp. 654–660.
Williams, N. 2007. Orang-utan extinction threat shortens. Current Biology, v. 17, pp. R261.
Bucher, E.H. 1992. The causes of the extinction of the passenger pigeon. Current Ornithology, v. 9, pp. 1–36.
Ellesworth, J.W. and McComb, B.C. 2003. Potential effects of passenger pigeon flocks on the structure and composition of presettlement forests of eastern North America. Conservation Biology, v. 17, pp. 1548–1558.
Johnson, K.P., Clayton, D.H., Dumbacher, J.P. and Fleischer, R.C. 2010. The flight of the passenger pigeon: phylogenetics and biogeographic history of an extinct species. Molecular Phylogenetics and Evolution, v. 57, pp. 455–458.
Turvey, S.T. and Risley, C.L. 2006. Modeling the extinction of Steller’s sea cow. Biology Letters, v. 2, pp. 94–97.

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


text:
STATE v. GUERRERO April 27, 2016 CR1000873; A150999.
HORTON v. OREGON HEALTH AND SCIENCE UNIVERSITY April 27, 2016 110811209; A155917.
BUNDY v. NUSTAR GP LLC LLC April 27, 2016 110810280; A152918.
LARISA HOME CARE LLC v. NICHOLS SHIELDS April 27, 2016 C124865CV; A154950.
STATE v. BERNHARDT April 27, 2016 211211071; A152817.
MORRISON v. BOARD OF PAROLE AND POST PRISON SUPERVISION April 27, 2016 A157849.
STATE v. BRONSON April 20, 2016 08947; A149117.
IN RE: the Compensation of Jeffrey S. CASEY April 20, 2016 1004578; A15S2297.
McKENZIE v. CHESTERSON COMPANY LLC April 20, 2016 090607908; A145735.
STATE v. HILL April 20, 2016 CR100274; A147778.
STATE v. SMITH April 20, 2016 08P3396; A149009.
RICHARDSON v. BELLEQUE April 20, 2016 09C20407; A151817.
STATE v. DEVALL April 20, 2016 14CR1791; A158544.
IN RE: the COMPENSATION OF Rodney ERICKSON April 20, 2016 1205867; A157092.
STATE v. EASTEP April 20, 2016 13CR0802; A155418.
STATE v. BELTRAN SOLAS April 20, 2016 13C40406; A154540.
THE FLIGHT SHOP INC LLC v. LEADING EDGE AVIATION INC April 20, 2016 14CV0133; A157216.
DEUTSCHE BANK TRUST COMPANY AMERICAS 2007 QA3 v. WALMSLEY April 20, 2016 13CV0125; A156569.
VFS FINANCING INC v. SHILO MANAGEMENT CORPORATION April 20, 2016 C137477CV; A158165.
JEWETT v. STERLING FURNITURE CO April 20, 2016 121305825, A158277.
N.M. G., Petitioner–Respondent, v. McGINNIS April 20, 2016 C137906CV; A156079.
ADVOCATES v. BOARD OF COMMISSIONERS OF JACKSON COUNTY April 20, 2016 14CV11829; A158485.
STATE v. KAINO SMITH April 13, 2016 CR1200951; A156452.
STATE v. PADILLA April 13, 2016 C121504CR; A155264.
TRI COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON v. AIZAWA April 13, 2016 110810129; A155714.
MULTNOMAH COUNTY SHERIFF OFFICE v. EDWARDS April 13, 2016 Nos. 0114, A157146.
STATE v. KAUPPI April 13, 2016 No. 137107; A156511.
STATE v. SUMMERS April 13, 2016 CF110089; A152471.
STATE v. WALKER April 13, 2016 12CR00909, A155126.
STATE v. MICKOW April 13, 2016 D131862M; A157024.
MEDI TECH INTERNATIONAL CORPORATION v. KWIECINSKI April 13, 2016 1300006SD; A157013.
PADRICK v. LYONS April 13, 2016 101217611; A153600.
STATE v. OLLER April 13, 2016 13CR0619FE; A156526.
STATE v. MONTWHEELER April 13, 2016 120367CR; A152716 (Control), 120368CR; A152715.
IN RE: Compensation of Richard Elsea April 13, 2016 130119M; A156924.
STATE v. COUCH April 13, 2016 109705024; A154912.
STATE v. SMITH April 6, 2016 121337; A153778.
STATE v. DESLAURIER April 6, 2016 11CR0442; A152186.
STATE v. HARRYMAN April 6, 2016 CR1201361; A155632.
STATE v. MARTINE April 6, 2016 131009; A155840.
WALRAVEN v. PREMO April 6, 2016 08C18038; A150453.
IN RE: the Compensation of Walter Guill April 6, 2016 1304551; A157567.
UTILITY REFORM PROJECT v. OREGON PUBLIC UTILITY COMMISSION April 6, 2016 UM1402; A150814.

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


On February 22, 2000, the Supreme Court of Wisconsin granted review of the court of appeals decision in Meyer v. Meyer, 2000 WI App 12, 232 Wis. 2d 191, 606 N.W.2d 184 (1999). The case involves two issues of substantial importance in family law. One involves the issue of considering premarital cohabitation in a maintenance case — a topic dealt with in my previous article. This article will deal with the second issue: the treatment of professional degrees under Wisconsin family law.
In Meyer, prior to their marriage, but while cohabiting, Julia worked for an insurance agency while Joseph attended medical school. The parties married in the year preceding Joseph’s graduation from medical school. During Joseph’s residency program, Julia undertook primary responsibility for caring for their child while continuing to work in the insurance field.
The trial court did not make a specific ruling on Julia’s claim of unjust enrichment, but took her contribution to Joseph’s professional degree into account in reaching a maintenance award. The District IV Court of Appeals reversed and remanded with directions to the trial court to exclude in its maintenance determination the facts and circumstances preceding the marriage.
The appellate court nonetheless chose to address the issues of unjust enrichment and professional degrees. The court cited Dewitt v. Dewitt, 98 Wis. 2d 44, 53, 296 N.W.2d 761 (Ct. App. 1980), which held that a degree is not an asset for property division purposes. The Meyer court found that, as reasoned in Dewitt, placing a value on a professional degree was highly speculative. The court accepted Dewitt as controlling authority and held that Julia cannot state a claim based on unjust enrichment arising from her contributions to Joseph’s medical degree.
In a strong dissent, Justice Deininger asserted that he would have limited Dewitt to its facts and circumstances. He noted that Dewitt merely held that the degree itself was not an asset, but that the court did not preclude a trial court’s consideration of the wife’s contribution to her husband’s obtaining the degree. Therefore, he concluded, that the trial could properly compensate Julia for her contributions through a limited-term maintenance award.
As indicated earlier, in Dewitt, the Court of Appeals held that, while equity compels “some form of remuneration” for a spouse who contributes more to the marriage than the other spouse, valuing a professional degree is too speculative. In addition, the court noted that such a division entails a “division” of post-divorce earnings. Accordingly, the court held that trial courts in making property division and maintenance awards should consider contributions to a professional degree.
[M]aintenance payments are no longer limited to situations where the spouse is incapable of self-support. Instead, we view maintenance as a flexible tool available to the trial court to ensure a fair and equitable determination in each individual case.
[I]t is unfair…to deny the supporting spouse a share in the anticipated enhanced earnings while the student spouse keeps the degree and all the financial rewards it promises.
While some states, such as New York, see O’Brien v. O’Brien, 66 N.Y.2d 576 (1985), have held that professional degrees can be considered assets for purposes of property division, as noted by Wisconsin courts as far back as Dewitt, valuation is highly speculative. After all, a degree cannot be sold as such. It has no market value in and of itself. The value is as ephemeral as Bill Gates’ brain or Julia Robert’s beauty. Both can be used to gain money, but physical asset itself is not transferable. Professional degrees are only as good as what the holder of the degree chooses to do with it. That choice then translates into income, which is available as maintenance.
To attach a value to an unsaleable entity would negate years of prior case law in Wisconsin which dictates the proper method of valuing property as “fair market value”. See Corliss v. Corliss, 107 Wis. 2d 338, 344-5, 320 N.W.2d 219 (1982); Schinner v. Schinner, 143 Wis. 2d 81, 98, 420 N.W.2d.381 (Ct. App. 1988); Liddle v. Liddle, 140 Wis. 2d 132, 138-9, 410 Wis. 2d 196 (Ct. App. 1987). “Fair Market Value” is the amount a willing buyer would pay a willing seller, both having knowledge of all relevant circumstances and neither under any compulsion to buy or sell. Under this definition, a degree which can only be used to secure future income, has no value.
Allowing the court to compensate the contributing spouse in the form of maintenance does not fully resolve the issue, either. In the stereotypical scenario, the wife works at a minimum wage job to put her husband through medical school. When the big money starts coming in, the marriage may crumble, for instance, due to the husband’s wandering eye. Then the court chooses to award compensation in the form of maintenance. As maintenance terminates upon the payee’s remarriage, the wife’s desire to actively make a new life for herself and remarry frustrates the court’s attempt at equity. Although the husband can keep his future income even after remarriage (except to the extent he shares it with his new wife), his former spouse must remain single to secure her share of the fruits of her years of labor.
Where there is a marital estate, the court can achieve some degree of equity through an unequal property division, as permitted by Wis. Stat. § 767.255(3)(f). Of course, as many of these cases have little or no property, this is not an effective solution in those cases.
As a result, the trial court must be left with discretion to fashion a remedy that will fit the individual circumstances of a particular case. That, of course, is exactly what the Supreme Court determined in Haugan 16 years ago. Such is what the trial court attempted to do in Meyer. Allowing the trial courts such flexibility remains the exclusive equitable method of resolving this genre of cases that possess such widely-varying facts and circumstances.


text:
The domain name at issue is "nutellaparty.com" (Domain Name), which Domain Name is registered with Network Solutions Inc., Herdnon, Virginia, U.S.A. (NSI or the Registrar).
A Complaint made pursuant to the Uniform Domain Name Dispute Resolution Policy adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999 (the Policy), to the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999 (the Rules) and to the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules), was submitted electronically to the WIPO Arbitration and Mediation Center (the Center) on December 22, 2000. The signed original with attachments was received by the Center on January 8, 2001.
On January 17, 2001, the Center transmitted to NSI a request for Registrar Verification in connection with this case. The following day, NSI confirmed that: (i) NSI is the Registrar of the Domain Name "nutellaparty.com"; (ii) the current registrant of the Domain Name is Mario Pisano; (iii) the administrative contact is Mario Pisano while the billing contact is Gianluca Tucci, both at CNNET s.r.l., Via Bra 9, 12100 Cuneo, Italy.
On January 17, 2001, the Center completed the Formal Requirements Compliance Checklist and on January 19 transmitted to the Respondent a Notification of Complaint and Commencement of Administrative Proceedings (Commencement Notification) electronically, by courier and fax. In the Commencement Notification the Center advised the Respondent that a response was due on February 7, 2001. On the same date the Commencement Notification was copied to Complainant and to ICANN and the Registrar.
On February 7, 2001, the Center received the Respondent� response electronically. The signed original with attachments was received by the Center on February 19, 2001.
On February 12, 2001, the Center acknowledged receipt of the Response.
On March 9, 2001, the Center notified the parties that Ms. Anna Carabelli had been appointed as the panelist in this proceeding, indicating that, absent exceptional circumstances, the Administrative Panel is required to send its decision to the Center by March 23, 2001.
The Panelist has independently determined and agreed with the assessment of the Center that the Complaint formally complies with the requirements of the Policy, the Rules and the Supplemental Rules.
On the basis of the documents submitted by the parties the following facts can be established as agreed between the parties or insufficiently disputed.
The filing of the first application for the Italian trademark registration dates back to 1963.
NUTELLA is an internationally well known and famous trademark, which fact is not denied or in any way objected to by the Respondent.
· the Domain Name has been registered and is being used in bad faith under paragraph 4b(i) of the Policy, as shown by letter sent by the Respondent�s attorney on November 17, 2000, (Attachment 6 to the Complaint) by which the Respondent accepted to transfer the Domain Name for a sum in excess of the reimbursement of the out-of-pocket expenses offered by the Complainant, amounting to 5 million Lira.
Nothing suggests that the Respondent registered the Domain Name for the purpose of disrupting the business of the Complainant. On the contrary, the intended use of the Domain Name (in connection with the organization of events accompanied by nutella parties) would have provided "added benefit" to the Complainant.
(iv) by using the domain name respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent�s website or on the on line location, by creating a likelihood of confusion with the complainant�s mark as to the source, sponsorship, affiliation or endorsement of the respondent�s website or location or of a product or service on the respondent�s website or location.
The Domain Name is "nutellaparty.com". "NUTELLA" is a registered trademark of the Complainant. The Domain Name therefore consists of the Complainant�s trademark to which the general term "party" is added. The Panelist notices that in principle the general term "party" would be indeed a rather neutral addition which is not capable of distinguishing the Domain Name from the Complainant�s trademark which is incontestably the principal part of the Domain Name. In the view of the Panelist, however, in the case in hand the term "party" indeed enhances the risk of confusion with the Complainant�s trademark. The product NUTELLA, in fact, is typically associated with the term "party" not only because the product may be served at parties, but also in consideration of the extensive TV campaign run in the last few years by the Complainant (and widely known in Italy), specifically set in parties where the product NUTELLA is served.
The Panelist finds therefore that the Domain Name is confusingly similar to the numerous trademark registrations of the word "NUTELLA" held by the Complainant.
The Respondent has failed to establish a legitimate right or interest under paragraph 4c (ii) and (iii) in that there is no evidence nor even allegation that the Respondent is commonly known by the Domain Name or that he has a legitimate non commercial or fair use of the Domain Name. In addition, the Respondent is obviously not a licensee of the Complainant nor has he received any permission to use the Complainant�s trademark NUTELLA to which the Complainant incontestably owns prior rights (the filing of the relevant first trademark registration in Italy dates back to 1963 � see Attachment 5bis to the Complainant).
In the Panelist�s opinion, the Respondent has also failed to establish a legitimate right or interest under paragraph 4b(i).
The Respondent alleges an intention to use the Domain Name in connection with a bona fide offering of services (i.e.: the organization and promotion on the web of fashion events, shows and beauty contests accompanied by parties during which the NUTELLA product is served). To support such allegation the Respondent has submitted a written statement signed by Mr. Dino Rossetti who confirms to have been involved in negotiation with the Respondent since October 1999 for the realization of such project (Attachment 9 to the Response).
In the Panelist�s view the evidence provided by the Respondent is of low probative value and insufficient to overcome a prima facie finding of no legitimate right or interest in the spirit of paragraph 4c(i) of the Policy. The mere speculative idea for a bona fide business application of a domain name is not in fact sufficient under paragraph 4a(i) of the Policy (in this connection see Libro AG v. NA Global Link Limited � WIPO D2000-0186; Interep National Radio Sales Inc. v. Technical Staffing � WIPO D2000-0175; Soci�t� des Hotels Meridien SA v. United States of Moronica WIPO D2000-0405).
The document submitted by the Respondent merely indicates an interest of the Respondent to use the Domain Name in connection with events to be organized in co-operation with Mr. Rossetti, but does not show an even small monetary or intellectual investment in such venture and no other evidence has been provided by the Respondent such as business plans, correspondence, reports or other forms of evidence showing that the Respondent is engaged in any activity to use the Domain Name for a bona fide offering of goods or services.
In addition, the Panelist notices that: (i) negotiations alleged in Mr. Rossetti�s statement have not led to any positive action in more than a year -since October 1999; (ii) in his letter of November 17, 2000, (Attachment 12 to the Response) the Respondent�s authorized representative avv. Fabrizio Rivelli confirms that there is no actual use of the Domain Name in connection either with an active website or with any kind of product of service; and (iii) according to the information provided by the Respondent (Attachment 13 to the Response) the Respondent�s business activity has nothing to do with the alleged use of the Domain Name.
The Panelist therefore finds that the Respondent has no rights or legitimate interests in the Domain Name.
The Respondent denies bad faith under each of the circumstances indicated in paragraph 4(b) of the Policy, based on the arguments summarized in paragraph 5(b) here above.
As regards under paragraph 4b(i) of the Policy, the Panelist notices that Respondent�s reference to the decision in Manchaster Airport PLC v. Club Club Limited ( WIPO D2000-0638) has no relevance. In that decision, the Panel found in fact that "selling a domain name is not per se prohibited by the ICANN Policy � " but added that "Selling of domain names is prohibited � only if the other elements of the ICANN Policy are also violated, namely trademark infringement and lack of legitimate interest". Based on the findings under paragraphs 6(a) and (b) here above, citation of the above mentioned decision does not help the Respondent to substantiate its proposition.
The Panelist finds that at least factor (i) of paragraph 4(b) of the Policy applies in this case. In the view of the Panelist, in fact, the Respondent offered to sell the Domain Name to the Complainant for an amount far in excess of the out-of-pocket costs directly related to the Domain Name. The letter of November 17, 2000, sent by Respondent�s authorized representative avv. Fabrizio Revelli, amounts to such an offer. In this letter, in fact, the Respondent refused to transfer the Domain Name for the sum offered by the Complainant (250,000 Italian Lira) and equated a reasonable offer with the amount of 5,000,000 Lira which is incontestably far in excess of the Respondent�s documented out-of-pocket costs related to the Domain Name i.e.: 650,000 Italian Lira (see CNNET invoice submitted as Attachment 3 to the Response). No evidence of the additional costs allegedly incurred by the Respondent has been submitted by the Respondent.
In addition, the Panelist considers that, given the wide fame and reputation of the Complainant�s trademark NUTELLA (which the Respondent does not deny) there is no way that the Respondent, who lives in the province where the largest Italian factory of the Complainant manufacturing the NUTELLA product is located, may not have been aware of the Complainant�s trademark when he registered the Domain Name, and this suggests opportunistic bad faith (Veuve Cliquot Ponsardin v. The Polygenix Group Co. WIPO D2000-00163; Parfums Christian Dior v. Javier Garcia WIPO D2000-0226).
Therefore, the Panelist concludes that the Domain Name has been registered and used in bad faith.
The Panelist decides that: (a) the Domain Name "nutellaparty.com" registered by the Respondent is confusingly similar to the NUTELLA trademarks owned by the Complainant (b) the Respondent has no rights or legitimate interests in respect of the Domain Name "nutellaparty.com"; and (c) the Domain Name "nutellaparty.com" has been registered and is being used in bad faith by the Respondent.
Accordingly, the Panelist requires that the Domain Name "nutellaparty.com" be transferred to the Complainant.

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


On May 27, 2014, the Supreme Court handed down Plumhoff v. Rickard (PDF), 572 U.S. — (2014) (No. 12-1117), a new Fourth Amendment/qualified immunity decision involving the use of deadly force–firing shots–and high speech chases.
Plumhoff involved a high speed chase—it began when an officer pulled over a driver because his car had only one operating headlight–in which police officers shot the driver and a passenger, both of whom died as a result of the shots and the consequent crash. The driver, on whose behalf his daughter filed a § 1983 claim alleging excessive force, made several arguments. First, the police officers who fired at the driver’s car in an attempt to terminate the chase violated the Fourth Amendment. Second, the police officers who fired a total of fifteen shots at the car violated the Fourth Amendment because this was excessive. Finally, the defendants violated clearly settled Fourth Amendment law.
In an opinion by Justice Alito, the Supreme Court reversed the Sixth Circuit that had ruled for the daughter. The Court found that the police officers did not violate the Fourth Amendment just because they used deadly force to terminate the chase. Relying on Scott v. Harris, the Court pointed out that here, as in Scott, the officers did not violate the Fourth Amendment in terminating a high speed chase posing a grave public safety risk through the use deadly force. The chase lasted over five minutes with speeds exceeding 100 miles per hour; the driver’s outrageously reckless driving put many other vehicles at risk; and even though the driver’s car had come to a temporary halt, that did not end the chase because he continued pushing down on the accelerator in an attempt to escape. At that point an officer fired three shots but the driver continued to drive away. This was followed by an additional twelve shots, with the driver never abandoning his attempt to flee until the crash. The Court emphasized that the officers did not need to stop shooting until it was clear to them that the threat to public safety had ended.
As to the presence of a passenger in the front seat of the car, this was largely irrelevant to the Fourth Amendment issue posed by this case: it was not the passenger’s Fourth Amendment rights that were implicated, it was those of the driver. “[The passenger’s] presence in the car cannot enhance [the driver’s] Fourth Amendment rights.” In this connection, the Court observed in passing that there was disagreement in the circuits as to whether a passenger in this situation even had a Fourth Amendment claim. In addition, if such a passenger pursued a substantive due process claim, he or she would have to prove that the officer had a purpose to cause harm unrelated to the legitimate object of arrest, per County of Sacramento v. Lewis.
Finally, the Court ruled that in any event, the officers did not violate clearly settled Fourth Amendment law as of July 18, 2004, the date of the events in question. The Court’s decision in Brosseau v. Haugen, 543 U.S. 194 (2004), had ruled that a police officer did not violate clearly settled Fourth Amendment law when she fired at a fleeing vehicle to prevent harm to officers she believed were nearby and to protect other citizens. The events in Brosseau occurred in February 1999 and there were no intervening decisions that constituted controlling or persuasive authority that changed this qualified immunity determination.
Justice Ginsburg joined the Court’s opinion as to the judgment and to three parts of the opinion, while Justice Breyer joined the Court’s opinion except as to one part.
Plumhoff was not a surprising decision. It followed from Scott v. Harris, but expanded that decision to expressly include shooting a fleeing driver who poses a grave risk to officers or public safety. In other words, there is no Fourth Amendment obligation on the part of police officers in these situations to refrain from firing shots, at least while the chase and the danger to others are ongoing.
Plumhoff also emphasized the need for judges doing Fourth Amendment analysis to put themselves in the place of police officers making split second decisions.
It is further worth noting the Court’s insistence that the clearly settled law inquiry not be conducted at too high a level of generality but rather at a fairly fact specific level in Fourth Amendment excessive force cases especially.


We first wrote on this topic nearly a year ago. Since then, courts have had an opportunity to interpret some of the provisions of the federal Defend Trade Secrets Act (DTSA). Indeed, since it was signed into law, more than 360 DTSA claims have been filed, with more than 343 complaints filed in federal court. California has seen more of these cases than any other state, finding itself host to over 15% of all DTSA claims.
As we addressed in our previous blog, there are some key distinctions between the DTSA and California’s Uniform Trade Secret Act (CUTSA) that may inform companies how to run their businesses and prepare for litigation should it be necessary. Some of these distinctions have come into greater focus as courts have interpreted the DTSA, at times with surprising results.
Inevitable Disclosure. When enacted, the DTSA was generally thought to reject the doctrine of inevitable disclosure like CUTSA. The doctrine of inevitable disclosure enables a plaintiff to “prove a claim of threatened misappropriation by demonstrating that the nature of a former employee’s new employment will ‘inevitably’ lead him to rely on the plaintiff’s trade secret.” The DTSA provides that a court may enjoin “any actual or threatened misappropriation . . . provided the order does not prevent a person from accepting an offer of employment under conditions that avoid actual or threatened misappropriation.” 18 U.S.C. § 1836(b)(3)(A)(i)(I)).
Nevertheless, some courts have issued inevitable disclosure injunctions under the DTSA. For example, in Mickey’s Linen v. Fischer, the district court for the Northern District of Illinois granted a preliminary injunction, finding that the defendant-former employee would “inevitably use or disclose [the plaintiff’s] trade secrets during his employment with [a competitor]. Thus, notwithstanding DTSA’s prohibition on injunctions that preclude employment, there may be jurisdictions where it is possible to obtain an injunction based on inevitable disclosure (although California is unlikely to be one of them). This is somewhat ironic since one of the purposes in enacting DTSA was uniformity across jurisdictions.
Whistleblower Immunity. Unlike CUTSA, the DTSA expressly provides for whistleblower immunity. The thought was that whistleblowers would be more likely to whistleblow if they did not have to worry about the cost and burden of a resulting DTSA lawsuit. But that is not how it has turned out, at least based on Unum Group v. Loftus. There, defendant employee moved to dismiss the plaintiff employer’s trade secret misappropriation claims on whistleblower immunity grounds. He claimed that he had turned over the documents that he took to his attorney in order to report and investigate a violation of law. The court denied the motion, reasoning that such defense cannot be adjudicated at the pleading stage and, instead, a defendant must submit to discovery and present evidence to justify the whistleblower immunity. Although this requirement may burden the putative whistleblower defendant, it may also prevent a defendant from evading litigation based on a mere cry of whistleblowing.
Ex Parte Seizure Order. Unlike CUTSA, the DTSA expressly allows a plaintiff to request – without any notice to the defendant — a court order directing enforcement officials to seize property to prevent further misappropriation. Given the potential power and disruptive nature of such a remedy, there was a lot of talk and concern about this aspect of the DTSA before and after its enactment. But, with the DTSA having over a year under its belt, practice shows that ex parte seizures are rarely sought and courts almost never issue them. The remedy is treated as truly extraordinary. Mission Capital Advisors LLC v. Romaka,  is one of the few cases where a DTSA ex parte seizure order was actually granted. The court there reasoned that the requisite extraordinary circumstances were present in light of the forensic evidence and misrepresentations about data deletion. The result in OOO Brunswick Rail Management v. Sultanov  – denial of an ex parte seizure order — is more the norm. There, the plaintiff argued that the seizure was necessary to stop data deletion and destruction of the evidence. In denying the seizure requests in that case, the court instead ordered document preservation and delivery of devices to the court at the time of a scheduled preliminary injunction hearing.
Sheppard Mullin attorneys have extensive experience litigating trade secret disputes, as well as navigating clients through the nuances of trade secret law outside of litigation.
 The Federal Defend Trade Secrets Act vs. The California Uniform Trade Secrets Act. Ms. Edelson is an editor and contributing author to TRADE SECRET LITIGATION AND PROTECTION IN CALIFORNIA (Defend Trade Secrets Act Supplement (State Bar of California 2017). Mr. Kim is a contributing author. Mr. Salen is a contributor to that Supplement.
 Rebecca Edelson and Jesse Salen, Federal DTSA versus California UTSA, California Business Law Practitioner, Vol. 32, No. 2, p. 38 (Spring 2017).
 No. 17 C 2154, 2017 WL 3970593, at *12-13 (N.D. Ill. Sept. 8, 2017); see also Molon Motor & Coil Corp. v. Nidec Motor Corp., No. 16 C 03545, 2017 WL 1954531, at *5 (N.D. Ill. May 11, 2017)(denying motion to dismiss because there was “enough to trigger the circumstantial inference that the trade secrets inevitably would be disclosed by [the former employee] to [the defendant-competitor].”); see also Panera, LLC v. Nettles, No. 4:16-cv-1181-JAR, 2016 WL 4124114 (E.D. Mo. Aug. 3, 2016) (finding the doctrine helpful for understanding why an employee’s duties at Papa John’s would almost certainly require him to draw upon and use Panera’s trade secrets).
 The DTSA prohibits injunctions that conflict with applicable state law precluding restraints on employment. 18 U.S.C. §1836(b)(3)(A)(i).
 A whistleblower is ordinarily thought to be someone who brings to light illegal activity of her company (e.g., by disclosing the matter to the attention of the authorities). Without laws to protect them, whistleblowers may risk reprisal and retaliation. The DTSA’s whistleblower immunity provision is one such law.
 No. 5:17-cv-00017-EJD, 2017 WL 67119 (N.D. Cal. Jan. 6, 2017); see also Balearia Caribbean Ltd., Corp v. Calvo, No. 16-23300-CIV-WILLIAM, (S.D. Fla. Aug. 5, 2016) (denying a DTSA seizure request for failure to satisfy the “extraordinary circumstances” test and instead issuing a temporary restraining order).
 Id. (Plaintiff sought seizure of a laptop, mobile phone, and digital copies of Google and Rackspace email accounts of two former employees which allegedly contained plaintiff’s trade secrets.).


text:
1.64.005 Method and procedure – Exception.
1.64.010 Purpose of chapter – Duty of council.
1.64.030 Sales – Personal, real property – Conditions.
1.64.040 Sale of timber – Special rules.
1.64.050 Council – Additional requirements – When.
This chapter shall set out the method and procedure for the sale of city owned property except in the case of city owned real property acreage suitable in the judgment of the mayor and council, for industry and the immediate establishment thereon of an industry and land suitable to private housing development for the construction of new residences which real property shall be leased, transferred, sold or disposed of for such a consideration and upon such terms, provisions and conditions embodied in a written report of committee adopted by the mayor and council. (Ord. 2472 § 1, 1969).
Whenever it shall appear to the mayor and city council that it is for the best interests of the city of Hoquiam and the people thereof that any lot, part or parcel, or portion of such lot, part or parcel, of the property, whether real, personal or mixed, belonging to the city, should be sold, it shall be the duty of the council to sell and convey such property, after the same has been appraised, under the limitations and restrictions and in the manner hereinafter provided. (Ord. 2050, 1958; Ord. 1931 § 1, 1953).
The council shall set forth in the report of committee how the sale shall be made and the manner of conducting the same. If the council determines that the sale shall be a public sale, the city finance director shall give notice of the city’s intention to make such sale by one publication in the official newspaper. Such notice so published shall particularly designate and describe the property or portions thereof which it is proposed to sell, the terms and conditions of sale and shall designate the hour and day when such sale shall take place. All sales made by the city finance director shall be by public auction in the lobby of the City Hall to the highest and best bidder. The terms of the sale shall thereafter be incorporated in the necessary instrument prepared by the city attorney and approved by resolution passed by the city council and approved by the mayor. (Ord. 2050, 1958; Ord. 1931 § 2, 1953).
If the property to be sold be personal, the sale thereof shall be for cash; in case such property is real, then the sale thereof shall be on such terms as the council may designate, which terms shall be incorporated in a contract by the attorney for the city, and any and all deferred payments shall be secured by such means as may to the council seem necessary, but no conveyance of the property so sold shall be made until full payment be made therefor. (Ord. 1931 § 3, 1953).
(1) The provisions of this chapter shall pertain to sale of timber in cases where the mayor and council determine that a sale shall be by the sealed bid and/or public auction method, except that the sale shall be by private sale. The notice of timber sale shall be published as hereinabove required and shall state the day on or after which the sale will be made and that the offers and bids will be received at the office of the city finance director. The bids or offers must be in writing and must be filed in the office of the finance director at any time after the publication and before a time designated in the notice on the date of sale. The council shall evaluate the bids and accept the highest and best bid, but no sale will be made if the bid or offer was disproportionate to the value of the timber sold.
(2) In cases where the mayor and council determine that a timber sale shall not be accomplished through the sealed bid and/or public auction method, but instead shall be accomplished through a public works logging contract, the public works logging contract for the removal and hauling of the timber shall be made and completed pursuant to RCW 35.23.352, and the harvested timber shall then be sold through a separate sales contract to the party which, in the judgment of the council, represents the best available market for the timber at that time. (Ord. 97-22 § 4, 1997; Ord. 1931 § 4, 1953).
Whenever a private party requests that the city sell a parcel of its real property, and the city council agrees to have the property appraised in accordance with Section 1.64.010, the costs associated with the appraisal shall be borne by the individual making the request. An appropriate deposit to cover the costs of the appraisal shall be paid to the finance director prior to any appraisal being done. The deposit shall be in the amount of the actual cost of the appraisal, shall be applied to the cost of the appraisal, and shall not be refundable. This requirement may be waived by the city upon the vote of a two-thirds majority of the council. The council may provide additional requirements, such as deposits or a certified check to guarantee performance by bidders in the sale of city property. (Ord. 96-14 § 1, 1996; Ord. 1931 § 5, 1953).

matches:
§ 1
§ 1
§ 2
§ 3
§ 4
§ 4
§ 1
§ 5


Section 5 of the Federal Trade Commission Act declares "unfair or deceptive acts or practices in or affecting commerce" to be illegal. 15 U.S.C. § 45(a)(1). Section 5 confers on the FTC the plenary power to prevent such acts and practices. 15 U.S.C. § 45(a)(2). Accordingly, the FTC may, upon conducting a formal hearing, issue a "cease and desist" order to stop the offending conduct. 15 U.S.C. § 45(b). If it would be in the public interest to do so, the FTC can also seek a temporary restraining order or temporary or permanent injunction in U.S. district court. 15 U.S.C. § 53(b). In cases where there is a widespread pattern of unfair or deceptive acts or practices, or where it has already issued cease and desist orders on the matter, the FTC may promulgate an administrative rule prescribing the acts or practices involved. 15 U.S.C. § 57a.
Anyone who does not comply with an FTC order is subject to a civil penalty of up to $11,000, with each day of a continuing violation constituting a separate violation.(2) 15 U.S.C. § 45(l). Likewise, anyone who knowingly violates an FTC rule is liable for $11,000 for each violation. 15 U.S.C. § 45(m). Enforcement actions can be brought by either the Department of Justice, or if it declines by the FTC. 15 U.S.C. § 56.
In a letter to Director General John Mogg of the European Commission, FTC Chairman Pitofsky noted the limitations on the FTC's authority to protect privacy where there has not been a misrepresentation (or no representation at all) as to how the information collected will be used. FTC Chairman Pitofsky letter to John Mogg (September 23, 1998). However, companies that want to avail themselves of the proposed "safe harbor" will have to certify that they will protect the information they collect in accordance with prescribed guidelines. Consequently, where a company certifies that it will safeguard the privacy of information and then fails to do so, such action would be a misrepresentation and a "deceptive practice" within the meaning of Section 5.
As the FTC's jurisdiction extends to unfair or deceptive acts or practices "in or affecting commerce," the FTC will not have jurisdiction over the collection and use of personal information for noncommercial purposes, charitable fund-raising for example. See Pitofsky letter, p. 3. However, the use of personal information in any commercial transaction will satisfy this jurisdictional predicate. Thus, for example, the sale by an employer of personal information on its employees to a direct marketer would bring the transaction within the purview of Section 5.
The first exception applies to "banks, savings and loan institutions described in section 18(f)(3) [15 U.S.C. § 57a(f)(3)]" and "Federal credit unions described in section 18(f)(4) [15 U.S.C. § 57a(f)(4)]."(7) These financial institutions are instead subject to regulations issued by the Federal Reserve Board, the Office of Thrift Supervision(8), and the National Credit Union Administration Board, respectively. See 15 U.S.C. § 57a(f). These regulatory agencies are directed to prescribe the regulations necessary to prevent unfair and deceptive practices by these financial institutions(9) and to establish a separate division to handle consumer complaints. 15 U.S.C. § 57a(f)(1). Finally, authority for enforcement derives from section 8 of the Federal Deposit Insurance Act (12 U.S.C. § 1818), for banks and savings and loans, and sections 120 and 206 of the Federal Credit Union Act, for Federal credit unions. 15 U.S.C. §§ 57a(f)(2)-(4).
Under the Communications Act, "every telecommunications carrier," including local exchange carriers, has a duty to protect the privacy of customer proprietary information.(12) 47 U.S.C. § 222(a). In addition to this general privacy-protection authority, the Communications Act was amended by the Cable Communications Policy Act of 1984 (the Cable Act), 47 U.S.C. § 521 et seq., to mandate specifically that cable operators protect the privacy of "personally identifiable information" on cable subscribers. 47 U.S.C. § 551.(13) The Cable Act restricts the collection of personal information by cable operators and requires the cable operator to notify the subscriber of the nature of the information collected and how that information will be used. The Cable Act gives subscribers the right of access to the information about them and requires cable operators to destroy that information when it's no longer needed.
The Communications Act empowers the FCC to enforce these two privacy provisions, either at its own initiation or in response to an outside complaint.(14) 47 U.S.C. §§ 205, 403; id. § 208. If the FCC determines that a telecommunications carrier (including a cable operator) has violated the privacy provisions of section 222 or section 551, there are three basic actions it may take. First, after a hearing and determination of violation, the Commission may order the carrier to pay monetary damages.(15) 47 U.S.C. § 209. Alternatively, the FCC may order the carrier to cease and desist from the offending practice or omission. 47 U.S.C. § 205(a). Finally, the Commission may also order an offending carrier to "conform to and observe [any] regulation or practice" that the FCC may prescribe. Id.
certify to the FCC, on an annual basis, how they are complying with these regulations.
It is not clear whether the Secretary of Agriculture will interpret the failure by a packer or stockyard operator to protect personal privacy in accordance with stated policy to be a "deceptive" practice under the Packers and Stockyards Act. However, the Section 5 exception applies to persons, partnerships, or corporations only "insofar as they are subject to the Packers and Stockyards Act," Therefore, if personal privacy is not an issue within the purview of the Packers and Stockyards Act, then the exception in Section 5 may very well not apply and packers and stockyard operators would be subject to the authority of the FTC in that regard.
According to an analysis prepared by FTC staff, "All fifty states plus the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands have enacted laws more or less like the Federal Trade Commission Act ("FTCA") to prevent unfair or deceptive trade practices." FTC fact sheet, reprinted in Comment, Consumer Protection: The Practical Effectiveness of State Deceptive Trade Practices Legislation, 59 Tul. L. Rev. 427 (1984). In all cases, an enforcement agency has the authority "to conduct investigations through the use of subpoenas or civil investigative demands, obtain assurances of voluntary compliance, to issue cease and desist orders or obtain court injunctions preventing the use of unfair, unconscionable or deceptive trade practices." Id. In 46 jurisdictions, the law allows private actions for actual, double, treble, or punitive damages and, in some cases, recovery of costs and attorney's fees. Id.
1. We do not discuss here all the various Federal statutes that address privacy in specific contexts or state statutes and common law that might apply. Statutes at the federal level that regulate the commercial collection and use of personal information include the Cable Communications Policy Act (47 U.S.C. § 551), the Driver's Privacy Protection Act (18 U.S.C. § 2721), the Electronic Communications Privacy Act (18 U.S.C. § 2701 et seq.), the Electronic Funds Transfer Act (15 U.S.C. §§ 1693, 1693m), the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.), the Right to Financial Privacy Act (12 U.S.C. § 3401 et seq.), the Telephone Consumer Protection Act (47 U.S.C. § 227), and the Video Privacy Protection Act (18 U.S.C. § 2710), among others. Many states have analogous legislation in these areas. See, e.g., Mass. Gen. Laws ch. 167B, § 16 (prohibiting financial institutions from disclosing customer's financial records to a third party without either the customer's consent or legal process), N.Y. Pub. Health Law § 17 (limiting use and disclosure of medical or mental health records and giving patients the right of access thereto).
3. "Deceptive practice" is defined as a representation, omission or practice that is likely to mislead reasonable consumers in a material fashion.
5. See staff letter to Center for Media Education, www.ftc.gov/os/1997/9707/cenmed.htm. In addition, the Children's Online Privacy Protection Act of 1998 confers on the FTC specific legal authority to regulate the collection of personal information from children by website and online service operators. See 15 U.S.C. §§ 6501-6506. In particular, the act requires online operators to give notice and to obtain verifiable parental consent before collecting, using, or disclosing personal information from children. Id., § 6502(b). The act also gives parents a right of access and to refuse permission for the continued use of the information. Id.
6. On November 12, 1999, President Clinton signed the Gramm-Leach-Bliley Act (Pub. L. 106-102, codified at 15 U.S.C. § 6801 et seq.) into law. The Act limits the disclosure by financial institutions of personal information about their customers. The Act requires financial institutions to, inter alia, notify all customers of their privacy policies and practices with respect to the sharing of personal information with affiliates and non-affiliates. The Act authorizes the FTC, the Federal banking authorities and other authorities to promulgate regulations to implement the privacy protections required by the statute. The agencies have issued proposed regulations for this purpose.
7. By its terms, this exception does not apply to the securities sector. Therefore, brokers, dealers and others in the securities industry are subject to the concurrent jurisdiction of the Securities and Exchange Commission and the FTC with respect to unfair or deceptive acts and practices.
8. The exception in Section 5 originally referred to the Federal Home Loan Bank Board which was abolished in August 1989 by the Financial Institutions Reform, Recovery and Enforcement Act of 1989. Its functions were transferred to the Office of Thrift Supervision and to the Resolution Trust Corporation, the Federal Deposit Insurance Corporation, and the Housing Finance Board.
9. While removing financial institutions from the FTC's jurisdiction, Section 5 also stipulates that whenever the FTC issues a rule on unfair or deceptive acts and practices, the financial regulatory Boards should adopt parallel regulations within 60 days. See 15 U.S.C. § 57a(f)(1).
10. "The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business." 15 U.S.C. § 1012(a).
11. The FTC has exercised jurisdiction over insurance companies in different contexts. In one case, the FTC took action against a firm for deceptive advertising in a state in which it was not licensed to do business. The FTC's jurisdiction was upheld on the basis that there was no effective state regulation because the firm was effectively beyond the reach of the state. See FTC v. Travelers Health Association, 362 U.S. 293 (1960).
As for the states, seventeen have adopted the model "Insurance Information and Privacy Protection Act" prepared by the National Association of Insurance Commissioners (NAIC). The Act includes provisions for notice, use and disclosure, and access. Also, almost all states have adopted the NAIC's model "Unfair Insurance Practices Act," which specifically targets unfair trade practices in the insurance industry.
12. The term "customer proprietary network information “means information that relates to "the quantity, technical configuration, type, destination, and amount of use of a telecommunications service" by a customer and telephone billing information. 47 U.S.C. § 222(f)(1). However, the term does not include subscriber list information. Id.
13. The legislation does not expressly define "personally identifiable information."
15. However, the absence of direct damage to a complainant is not grounds to dismiss a complaint. 47 U.S.C. § 208(a).


text:
Personal data is any information that relates to an identified or identifiable natural person. These include, for example, your name, your address and communication data or your e-mail address.
Processing means any process or series of operations performed with or without the aid of automated processes in connection with personal data such as collection, collection, organization, ordering, storage, adaptation or modification, reading, querying, use, disclosure by submission, dissemination or other form of provision, reconciliation or association, restriction, erasure or destruction.
The controller or "controller" means the natural or legal person, public authority, body or body that, alone or in concert with others, decides on the purposes and means of processing personal data.
For the terms used, we also refer to the definitions in Article 4 of the General Data Protection Regulation (GDPR). The terms used, such as "users" are to be understood gender-neutral.
The MRU GmbH has appointed a Data Protection Officer. You can reach him under the e-mail address heiko.fauth@bechtle.com or via our postal address with the addition "the data protection officer".
The storage of this data in log files is necessary to ensure the functionality of the website. They help us to optimize the website and to ensure the security of our information technology systems.
These data are collected on the basis of our legitimate interest within the meaning of Art. 6 para. 1 lit. f ) GDPR to be able to view our website and to ensure its security.
Information in the log files are stored for security reasons (eg to investigate abusive or fraudulent actions) for a maximum of three days and then deleted. Data whose further retention is required for evidential purposes shall be exempted from the cancellation until final clarification of the incident.
The collection of data for the provision of the website and its storage in log files is essential for operation for technical reasons. There is consequently no contradiction on the part of the user.
They generally have the ability to contact us by mail or equivalent function online contact. We process the information you provide in order to answer and examine your request. Depending on the topic, type of date and whether you are already a customer or not, the processing of the data is based on the contract with you, your consent or your or our legitimate interest in clarifying the request in accordance with Art. 6 para. 1 a), b) and f) DSGVO. We will delete your data regarding the request unless we are legally required to store or retain it. Insofar as the data is still required to process outstanding requests, the deletion will take place at the earliest after these requests have been processed.
If you use the contact form on our website, the following data will be processed: address, first name, last name, company, street, house number, postal code, city, country, telephone number, e-mail address, your message sent.
Alternatively, a contact can be made with the e-mail addresses provided. In these cases, the sender's personal data transmitted by e-mail will be processed.
In this context, there is no disclosure of the data to third parties. The data is used exclusively to process the conversation and to process the request.
The processing of the personal data from the input mask serves us to process the contact. In the case of contact via e-mail, this also includes the required legitimate interest in the processing of the data. The other personal data processed during the sending process (eg IP address, date, time) serve to prevent misuse of the contact form and to ensure the security of our information technology systems.
We will delete personal information if it is no longer necessary to achieve the purpose of the survey. For the personal data from the input form of the contact form and those sent by e-mail, this is the case when the respective conversation with the user has ended. The conversation ends when it can be inferred from the circumstances that the facts or the information request are finally clarified.
You have the opportunity to revoke your consent to the processing of personal data at any time.
If you are with us about Contact e-mail, you can the storage of your personal Data object at any time. In this case, of course, our conversation cannot be continued. Such a revocation is addressed to info(at)mru.de All personal data stored in the course of establishing contact will be deleted.
This is not done by an assignment to you personally, but by assigning an identification number to the cookie ("Cookie ID"). A combination of the cookie ID with your name, your IP address or similar data that would allow a mapping of the cookie to you does not occur.
Transient cookies are automatically deleted when you close the browser. These include in particular so- called session cookies. These store a so-called session ID, with which various requests from your browser can be assigned to the shared session. When you return to our website, your computer can be recognized. The session cookies are deleted when you log out or close the browser.
Some elements of our website require that the calling browser be identified even after a page break. For these, it is necessary that the browser is recognized even after a page break.
The legal basis for the processing of personal data using the technically necessary cookies is Art. 6 para. 1 lit. f DSGVO.
Persistent cookies are automatically deleted after a specified period of time.
Our sites do not use Google - Analytics or user - tracking.
We use Google Adwords to advertise our offers on external websites with the help of advertising materials (so-called Google Adwords). These advertising materials are supplied by Google via so-called "ad servers". To do this, we use ad server cookies, which measure certain performance metrics such as ads or user clicks. If you access our website through a Google ad, Google Adwords will store a cookie on your PC. What cookies are and how they can be deleted, we have described above. These cookies allow Google to recognize your Internet browser. If a user visits certain pages of the website of an Adwords customer and the cookie stored on their computer has not yet expired, Google and the customer can recognize that the user has clicked on the ad and has been redirected to this page. Each Adwords customer is assigned a different cookie. Cookies cannot be tracked via the websites of Adwords customers. We ourselves do not collect and process any personal data in the aforementioned advertising measures. We receive only statistical evaluations provided by Google. On the basis of these evaluations, we can identify which of the advertising measures used are particularly effective. We do not receive any further data from the use of the advertising material, in particular we cannot identify the users on the basis of this information.
In relation to the data of the advertising campaigns, we can determine how successful the individual advertising measures are. We are interested in showing you advertisements that are of interest to you, to make our website more interesting to you and to achieve a fair calculation of advertising costs.
The data processing serves our justified interest to design advertising purposefully. The legal basis is Art. 6 para. 1 lit. f) GDPR.
These cookies usually lose after 30 Days are valid and should not serve to identify you personally. As a rule, this cookie will be analyzed as unique cookie ID, number of ad impressions per placement ( Frequency ), last impression (relevant to post-view conversions ) and opt -out information (mark that the user is not more would like to be addressed) saved.
To opt -out of Google Marketing Services interest-based advertising, you can take advantage of Google's recruitment and opt -out options: www.google.com/ads/preferences .
www.YouTube.com and are directly playable from our website. These are all in the "enhanced data protection mode" involved, which means that no information about you is transferred as a user on YouTube if you do not play the videos. Only when you play the videos, the in paragraph 2 transmitted data. We have no influence on this data transfer.
By visiting the website, YouTube receives the information that you have accessed the corresponding sub- page of our website. In addition, the under § 3 of this declaration. This happens regardless of whether YouTube provides a user account that you are logged in to, or if there is no user account. When you're logged in to Google, your data will be assigned directly to your account. If you do not wish to associate with your profile on YouTube, you must log out before activating the button. YouTube stores your data as usage profiles and uses them for purposes of advertising, market research and / or custom design of its website. Such an evaluation is done in particular (even for users who are not logged in) to provide appropriate advertising and to inform other users of the social network about their activities on our website. You have a right to object to the creation of these User Profiles, and you must be directed to YouTube to use them.
By visiting the website, Google receives the information that you have accessed the corresponding subpage of our website. In addition, the under § 3 of this declaration. This is done regardless of whether Google provides a user account that you are logged in to, or if there is no user account. When you're logged in to Google, your data will be assigned directly to your account. If you do not wish to be associated with your profile on Google, you must log out before activating the button. Google stores your data as usage profiles and uses them for purposes of advertising, market research and / or tailor-made website design. Such an evaluation is done in particular (even for users who are not logged in) to provide appropriate advertising and to inform other users of the social network about their activities on our website. You have a right of objection to the formation of these user profiles, and you must comply with this to Google.
We take technical, contractual and organizational measures for the security of data processing according to the state of the art. In this way, we ensure that the provisions of the Data Protection Act, in particular the General Data Protection Regulation, are complied with and the data processed by us is protected against destruction, loss, alteration and unauthorized access. One of these security measures is the encrypted transfer of data between your browser and our servers. Please note that SSL encryption is only activated for transmissions made over the Internet if the key symbol appears in the lower menu bar of your browser window and the address begins with https: //. Secure Socket Layer (SSL) protects data transmission against third-party data piracy using encryption technology. If this option is not available, you may choose not to send certain data over the Internet.
All information that you submit to us will be stored and processed on our servers in the Federal Republic of Germany .
A transfer of data to third parties is only within the scope of legal requirements. We only pass on the data of the users to third parties if, for example, on the basis of Art. 6 para. 1 let . b) GDPR is required for contract purposes or based on legitimate interests in accordance with Art. Lit Art. 6 para. 1,. f. DSGVO on the economical and effective operation of our business operations.
We set in the context of a order processing gem. Art. 28 DSGVO Subcontractors for the provision of our services, in particular for the operation, maintenance and hosting of the website . We have taken appropriate legal precautions and appropriate technical and organizational measures to protect personal data in accordance with applicable law.
We include external services or content on our website. This is done on the basis of our legitimate interests in the analysis, optimization and cost-effective operation of our online offer in the sense of Art. 6 para. 1 lit. f DSGVO.
When using such a service or the display of third party content, communication data such as date, time and IP address are exchanged between you and the respective provider for technical reasons. Specifically, this is your IP address required to display content in your browser.
It may be that the provider of the respective services or contents of your data for further, own purposes processed. However, as we have no influence on the data collected by third parties and their processing by them, we cannot give any binding information on the purpose and scope of the processing of your data.
The following list provides an overview of third-party providers as well as their contents and links to their privacy statements, which contain further notes on the processing of data and the possibility of contradictions.

matches:
Art. 6
Art. 6
Art. 6
Art. 6
§ 3
§ 3
Art. 6
Art. 6
Art. 28
Art. 6


New and material evidence having not been received, the claim to reopen the previously denied claim entitlement to service connection for psoriasis is denied.
Entitlement to service connection for a skin disorder, other than psoriasis, to include eczema or as an undiagnosed illness is denied.
1.  In an unappealed October 2011 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for psoriasis.
2. The evidence added to the records since the October 2011 rating decision is cumulative or redundant of the evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the Veteran’s claim for service connection for psoriasis.
3. The Veteran does not have a diagnosis of eczema.
4. The Veteran’s skin complaints have been attributed to a known clinical diagnosis of psoriasis.
2. As new and material has not been received, the criteria for reopening the claim for service connection for psoriasis have not been met.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.
3. The criteria for service connection for a skin disorder, other than psoriasis, to include eczema, have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.
The Veteran served on active duty from March 1996 to March 2000.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.
Concerning the Veteran’s claim for service connection for eczema, the Board notes that the record reflects various diagnostic impressions, including nonspecific skin eruption.  Because the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim and reported syndromes and all other information of record, the Board finds that it is more appropriate to characterize his claims broadly, as a single claim of entitlement to service connection for skin disorder.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).
Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received.  Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).
In general, VA rating decisions that are not timely appealed are final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.302.  A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.  38 U.S.C. § 5108.  New evidence is defined as evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1999).  If it is determined that new and material evidence has been submitted, the claim must be reopened.
When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  VA must evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim.  38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).
An October 2011 rating decision denied service connection for psoriasis because there was no evidence the Veteran’s disorder was related to his active duty service.  The relevant evidence of record at that time included the Veteran’s statements, service treatment records, and VA treatment records.  See October 2011 Rating Decision.  The Veteran was notified of the October 2011 rating decision and of his appellate rights by letter dated October 31, 2011.  The Veteran did not appeal the October 2011 rating decision.  As such, the October 2011 rating decision is final in regards to the Veteran’s claim of entitlement to service connection for psoriasis.
The evidence of record received subsequent to the October 2011 rating decision consists of post-service medical records and the Veteran’s statements.  The Board concludes that the evidence is new, because it was not before the RO when it denied to reopen the claim of service connection for psoriasis.
Although the evidence is new, the Board finds that it is not material because it contains no indication that the Veteran’s psoriasis is related to service.  The evidence does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim.  See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of a disease, without addressing the crucial matter of a medical nexus, does not constitute new and material evidence).  The additional medical evidence is therefore not so significant that it must be considered in order to fairly decide the merits of the claim.
In light of the above, the Board finds that the evidence submitted since the last final denial of the claim does not meet the new and material evidence standard, and thus the claim cannot be reopened.
The Veteran claims he developed a skin condition as a result of his Gulf War service.  See August 2015 VA Form 9.  For the following reasons and bases, the Board finds that entitlement to service connection for a skin disorder is not warranted.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996).
Additionally, where a veteran has served 90 days or more of active service during a war period or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In the instant case, eczema is not considered a chronic disease pursuant to VA regulations and, as such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted.
However, service connection may also be established for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that manifests either during active service in the Southwest Asia Theater during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examinations, or laboratory tests.  38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1).  In the instant case, the record reflects that the Veteran had service in Southwest Asia during the Persian Gulf; however, his skin disorder complaints have been attributed to known clinical diagnosis of psoriasis and, and, therefore, 38 U.S.C. §1117 and 38 C.F.R. § 3.317 are inapplicable to his claim.  See November 2013 Skin Diseases Disability Benefits Questionnaire (DBQ) (diagnosing the Veteran with psoriasis and noting he does not have a chronic undiagnosed illness).
The Veteran’s service treatment records are silent for any complaints, treatment, or diagnoses of eczema.  The Veteran was treated for an abrasion to his right elbow, with a possible diagnosis of cellulitis.  See October 1996 Treatment Note.
The Board notes that the Veteran has never been diagnosed with eczema.  He has been diagnosed with psoriasis.  See November 2013 Skin Diseases DBQ.  The competent and credible medical evidence does not show any current diagnoses of a skin disorder, except for psoriasis, at any time.  While the Veteran asserts that he has eczema as the result of his active duty service, as a layperson he does not have the medical competence to identify or diagnose these conditions, as this is a complex determination that cannot be made based on lay observation alone.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are “medical in nature”); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).
As stated above, service connection may only be granted for a current disability.  The Board concludes that the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of a skin disorder, other than psoriasis. Accordingly, entitlement to service connection for a skin disorder, other than psoriasis, to include eczema, is denied.