Plaintiff-appellant appeals from the district court's memorandum decision upholding the Commissioner's decision denying Supplemental Security Income benefits to plaintiff's son, Aaron, who suffers from Attention Deficit Disorder. In essence, the Commissioner determined that Aaron was not disabled under the Social Security Act regarding children under age eighteen. See 42 U.S.C. § 1382c(C). We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.
In reviewing the Commissioner's decision, we determine whether substantial evidence in the record as a whole supports the factual findings and whether correct legal standards were applied. See Brown v. Callahan, 120 F.3d 1133, 1135 (10th Cir. 1997). We may not reweigh the evidence or substitute our discretion for that of the Commissioner. See Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995).
The focus of this appeal is whether substantial evidence supports the conclusion of the administrative law judge (ALJ) that Aaron did not have an impairment listed in or functionally equal to one listed in 20 C.F.R. pt. 404, subpart P, app. 1, Part B, § 112.11. In making this determination, the ALJ used the "broad areas of functioning" method. See 20 C.F.R. § 416.926a(b)(2). To meet the "functionally equivalent in severity to a listed impairment" requirement, a child must have an "extreme" limitation in one area of functioning or a "marked" limitation in two or more areas of functioning. See id. "Marked" limitation means "more than moderate" but "less than extreme" and may arise when several activities or functions are limited or if the degree of limitation seriously interferes with the child's functioning. See. § 416.926a(c)(3)(i)(C). "Extreme" limitation means no meaningful functioning in a given area and may arise when one or several activities or functions are limited. See § 416.926a(c)(3)(ii)(C). The ALJ determined that Aaron had neither a "marked" nor an "extreme" limitation in any of the five areas of functioning of (1) cognition/communication, (2) motor skills (3) social skills (4) personal skills and (5) concentration, persistence or pace. See § 416.926a(c)(4)(i)-(iii), (v)-(vi).
Although appellant argues that the ALJ did not consider her claim that Aaron is disabled because of his behavior, see Appellant's Br. at 8-9, the record reflects the ALJ did note Aaron's behavior problems, see Appellant's App. at 20-22, but concluded they did not rise to the level of a "marked" or "extreme" limitation. The thrust of plaintiff's argument is a request that this court reweigh the evidence, which we may not do. See Kelley, 62 F.3d at 337. We have carefully reviewed the record and agree with the district court's conclusion that there is substantial evidence in the record to support the ALJ's decision.
Accordingly, for substantially the reasons stated in the district court's Memorandum Decision on Appeal filed December 13, 1999, the judgment of the United States District Court for the District of Colorado is AFFIRMED.


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Meyer, Larry L. Shadow of a Continent. Inscribed by the author. The Prize That Lay to the West - 1776. Photo available. Palo Alto. American West Publishing Company. 1975. 384 pps. Octavo. Hardcover. First edition. Illustrated. Inscribed by the author. Fine copy in near fine (small closed tear on front panel) dust jacket (in mylar).
Mihesuah, Deon A. Cultivating the Rosebuds. The Education of Women at the Cherokee Female Seminary. 1851-1909. Photo available. Urbana. University of Illinois Press. 1998. Octavo. Soft cover. Illustrated. Fine copy.
Miles, Charles. Indian and Eskimo Artifacts of North America. New York. American Legacy Press. 1986. 244 pps. 4to. Hardcover. Reprint. Illustrated in color and black & white. Fine copy in fine dust jacket (in mylar).
Miller, Crane S. California. The Geography of Diversity. Photo available. Mountain View. Mayfield Pub. 1983. 4to. Soft cover. First edition. Illustrated. Near fine copy (very light shelf wear).
Miller, David E. Hole-In-The-Rock. An Epic in the Colonization of the Great American West. Photo available. Salt Lake City. University of Utah Press. 1966. 229 pps. 4to. Hardcover. Reprint. Illustrated. Important reference work. Fine copy in very good (light shelf wear) dust jacket (in mylar).
Miller, Donald C. Ghost Towns of Nevada. Photo available. Boulder. Purett Publishing. 1979. 182 pps. 4to. Hardcover. First edition. Full number line. Illustrated. Important reference work. Fine copy in fine dust jacket (in mylar).
Miller, Emma Gene. Clatsop County, Oregon. Its History, Legends and Industries. Portland. Binford & Mort. 1958. Octavo. Hard cover. First edition. Illustrated. Fine copy in near fine (light shelf wear) dust jacket (in mylar).
Miller, Marjorie. Indian Arts and Crafts. A Complete "How To" Guide to Southwestern Indian Handicrafts. New York. Galahad. 1972. 118 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in near fine (light shelf wear) dust jacket (in mylar).
Miller, reston. Four Winds. Indian Beadwork & Old Flathead Photos. A Manual of Beading Techniques. Photo available. St. Ignatius. Self published. 1971. Octavo. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
Miller, Robert. Guide to Old Sacramento. Signed by the author. Photo available. Sacramento. River City Press. 1976. Octavo. Soft cover. First edition. Illustrated in black, white and color. Signed by the author. Fine copy.
Miller, Rod & C.J. Hadley (ed). Go West. The Risk & The Reward. Photo available. Carson City. Range Conservation Foundation. 2012. 4to. Hardcover. First edition. Illustrated in black, white and color. Important reference work. Fine copy in fine dust jacket (in mylar).
Miller, Ronald Dean. Shady Ladies of the West. Photo available. Los Angeles. Westernlore Press. 1985. 224 pps. Octavo. Hardcover. Reprint. Illustrated. Important reference work. Fine copy in near fine (very light shelf wear) dust jacket (in mylar).
Miller, Stuart Creighton. The Unwelcome Immigrant. The American Image of the Chinese, 1785-1882. Photo available. Berkeley. University of California Press. 1974. 259 pps. Octavo. Soft cover. First edition thus. Important reference work. Fine copy.
Miller, Tom (ed). Arizona. The Land and the People. Photo available. Tucson. University of Arizona. 1986. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Mills, Donald. Southwest Impressions. Glorieta. The Rio Grande Press. 1973. 124 pps. 4to. Hardcover. Facsimile edition. Fine copy.
Mills, George. The People of the Saints. Photo available. Colorado Springs. The Taylor Museum. nd. Octavo. Hardcover. First edition. Illustrated in black, white and color. Important reference work. Fine copy in fine (small closed tear on spine edge) dust jacket (in mylar).
Mills, Geroge. Lucifer and the Crucifer: The Enigma of the Penitentes. Photo available. Colorado Springs. The Taylor Museum. 1956. Octavo. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
Milne, Terry. The Ultimate Bay Book. The Discovery and Delights of San Francisco Bay. Photo available. San Francisco. California Living. 1979. 233 pps. 4to. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
Milner, Clyde (ed). The Western Historical Quarterly. Number 1, Vol. XXVII. Logan. University of Utah Press. Spring, 1996. 124 pps. + ads. Octavo. Soft cover. First edition. Illustrated. Fine copy.
Milner, Clyude A. II (et al, eds.). The Oxford History of The American West. Photo available. New York. Oxford. 1994. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Miluck, Nancy Christian. Nevada. This is Our Land. A Survey from Prehistory to Present. Photo available. Genoa. Dragon Enterprises. 1994. 207 pps. Octavo. Soft cover. Revised edition. Illustrated. Important reference work. Fine copy.
Mims, Julie. Sacramento. Limited edition. A Pictorial History of California's Capital. Virginia Beach. Donning Co. 1981. 208 pps. 4to. Hardcover. First edition thus. Illustrated. Limited edition. Number 816 of 6,500 copies. Fine copy.
Minckler, Thomas. A Montana Catalogue. Billings. Self published. 1985. Octavo. Soft cover. First edition. 175 items, priced. Fine copy.

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PARTNERSHIP: Essential elements. Existence of a partnership 1 depends upon whether there is community of interest in profits and losses, a community of interest in capital employed, and community of power in administration.
PARTNERSHIP: Community powers of administration lacking. Where 2 an agreement for operating a farm provided that the operation would be under the supervision of plaintiff who would handle details of planting, care and harvesting of crops, there was not such community of power as to administration that would constitute a partnership.
PARTNERSHIP: Sharing of losses essential feature. In case of a 6 partnership the matter of sharing losses must be clearly established.
Appeal from Black Hawk District Court — BLAIR C. WOOD, Judge.
This is an action for contribution as to an item of $3500 paid by plaintiff. The parties made a written agreement as to operation of a farm. Plaintiff claimed it was a partnership. Defendant claimed the relationship was that of landlord and tenant. Trial court held it was a tenancy agreement. Plaintiff appealed. — Affirmed.
Beecher, Buckmaster, Beecher Lindeman, of Waterloo, for appellant.
Mosier, Mosier, Thomas Beatty, of Waterloo, for appellee.
This is an action in equity wherein plaintiff seeks contribution from defendant for damages recovered by an employee of plaintiff. His name was Clyde Sorge and he recovered $3500 from plaintiff in an action for personal injuries.
The basis of this action is that there was a written agreement between plaintiff and defendant which plaintiff claims entitles him to contribution. The question in the case is whether the written agreement and all the circumstances of the case are sufficient to constitute a partnership between the parties, or is the relationship one of plaintiff as tenant and defendant as landlord.
The trial court decided the relationship between the parties was that of tenant and landlord and that plaintiff was not entitled to contribution. Plaintiff appealed.
While there are various ramifications as to the difference between the parties, in the final analysis there is only one question as to which appellant claims the trial court erred in its decision; in holding that the relationship was a landlord and tenant situation rather than a partnership.
"It is particularly understood that this is not a Partnership agreement, nor is the relationship a Partnership. That neither party shall mortgage or otherwise encumber the jointly owned property, nor pledge the credit of the Parties hereto for any purpose whatsoever without the written consent of the other Party; and that neither of the Parties shall buy farm products, livestock or supplies of the value of more than Fifteen Hundred Dollars ($1,500) per month without the consent of the other Party."
The agreement also provided that defendant would furnish the land and would take care of all permanent improvements thereon and pay all taxes and insurance. The plaintiff was to furnish all labor, equipment and machinery and was to operate the farm in a good and workmanlike manner. Any maintenance, repairs or replacement of equipment and machinery and the taxes and insurance on same were to be paid by plaintiff.
Each party was to furnish one half of livestock, except a slight poultry situation which involved some equipment. All income was to be divided equally between the two parties. The income was to be deposited in a joint bank account, established for such purpose, which account was to be known as Walko-Meadows Farm. Both parties were authorized to draw checks on the bank account. The purchase and sale of farm products was to be by mutual agreement of the parties. All operating expenses were to be shared equally.
Plaintiff was to keep accurate accounts and books. Such account was open for the examination of either party at anytime. Unless otherwise directed by defendant, plaintiff was to pay all farm expenses out of the farm account and furnish defendant with an itemized statement of receipts and disbursements once a month. When there was any division of profits they were to be divided equally between the two parties.
Defendant had access to the farm at all times, except such times as would interfere with proper operation. The agreement was for one year and could be renewed from year to year as the parties agreed. If either party wanted to terminate same he could do so by giving notice to the other party by August 15, for termination on the following March 1.
The arrangement ran along as stated in the agreement for all of 1957 and the parties continued under the agreement for 1958, 1959 and until March 1960. On March 15, 1958, plaintiff hired Clyde Sorge to work on the farm. It was agreed that he would live in the buildings on the farm. He made a written agreement with both parties as to furnishing some cows and calves, but same has no bearing upon the question involved herein.
In 1960 Sorge was injured in a fall from a ladder he had placed against the barn. He sued both parties. The case was settled between Clyde Sorge and plaintiff for $3500, but defendant refused to make any contribution claiming that the relationship between defendant and plaintiff was that of landlord and tenant and not one of partnership, and he was not liable for any part of the settlement with Sorge.
The question therefore is whether or not a partnership existed between the parties, in view of the agreement, the facts of the case, and the decisions of this court as to the elements involved in determination of the existence of a partnership.
 II. This court has held on several occasions that the matter of determination of existence of a partnership depends in general upon the following conditions: 1. Was there a community of interest in profits and losses? 2. Was there a community of interest in the capital employed? 3. Was there a community of power in administration? Malvern National Bank v. Halliday, 195 Iowa 734, 192 N.W. 843; Florence v. Fox, 193 Iowa 1174, 188 N.W. 966.
 In the case at bar there was some community of interest in the capital employed. Defendant furnished the farm and plaintiff furnished the labor and machinery. There was a provision in the written agreement that they were to share profits equally. There was no definite statement as to losses, but there was an agreement that all expenses were to be paid equally. This would indirectly refer to losses. However, there was no community of power as to administration. The operation of the farm was under the supervision of plaintiff. While the parties at times talked about what crops to plant and in general where to place them, the details of planting the crops and the care of them and harvesting them were all in the hands of plaintiff.
 III. The characterization given by the parties in their agreement is a significant factor in determining the intent of the parties. Malvern National Bank v. Halliday, supra; Winter v. Pipher Co., 96 Iowa 17, 64 N.W. 663; Butz v. Hahn Paint Varnish Co., 220 Iowa 995, 263 N.W. 257.
 As heretofore shown when the parties entered into their agreement as to their farming operation they stated very specifically in the agreement that the operation was not a partnership. The fact that such statement was made by the parties and that such agreement with the statement in the body of same was solemnly signed by the parties is not conclusive, but is very strong evidence that the relationship was not a partnership. The trial court gave great weight and significance to this statement and it was justified in doing so.
 IV. The limitation imposed by the terms of the agreement upon the right of each party to act as agent of the other in connection with the operation of the business also denies partnership intent. Berry Seed Co. v. Hutchings, 247 Iowa 417, 74 N.W.2d 233; Hanson v. Birmingham, 92 F. Supp. 33 (D.C. Iowa).
The parties in their agreement made specific statements as to the repairs each party was to make and placed a limitation upon the expenditure per month by any one party without the consent of the other party. In other words, there was not granted by either of the parties to the other the general powers concerning the affairs of the business and its operation, which are usually present as between partners.
This court has decided one case where the state of facts is almost the same as involved in this case and held it was a landlord and tenant operation and not a partnership. This was the case of Florence v. Fox, supra. Mr. Fox and Mr. Beeson entered into a written agreement for a farming operation. Mr. Fox owned the land and Mr. Beeson furnished the labor and machinery. Mr. Beeson hired whatever help he needed for the performance of the labor. Mr. Fox had nothing to do with this part of the operation. One man hired by Mr. Beeson was Mr. Florence. He was operating a machine one day for the pressing of cane in order to press out the sugar content. While engaged in such operation he caught his hand in the machinery and was injured. Mr. Florence sued Mr. Fox, alleging that he was a partner of Mr. Beeson and was liable to him for damages by reason of the injury. We held that the relationship was not a partnership; that it was a landlord and tenant relationship and Mr. Fox was not liable.
 V. Another significant element in connection with partnership is a definite agreement with reference to the sharing of profits and losses. The matter of equal division of profits was referred to in the agreement. However, the matter of losses was not specifically covered. There was an indirect reference to losses in the provision that the parties should share expenses equally. If the expenses ran far ahead of the receipts of course there would be losses. In the case of a partnership arrangement the matter of the sharing of losses must be clearly established. Citizens Bank of Milo v. C.F. Scott Son, 217 Iowa 584, 250 N.W. 626; Malvern National Bank v. Halliday, supra. The agreement does not specifically outline the matter of losses.
 VI. Another element in the situation which clearly indicates that the relationship was landlord and tenant rather than partnership was the fact that defendant had nothing to do with hiring or supervising Mr. Sorge. He was Mr. Anderson's employee, and his exclusive responsibility. Mr. Anderson hired him, paid him, supervised him and fired him. Defendant had no discretion or right as to Anderson's hired help or as to the method employed in operating the farm. This feature of the instant case also falls within the state of facts as shown in Florence v. Fox, supra.
As a comprehensive definition concerning partnership see Butler v. Lloyd, 230 Iowa 422, 428, 297 N.W. 871, 875, where it properly appears in effect as follows: "The salient features of a `partnership' are a community of interest in profits and losses, a community of interest in capital employed, a community of power in administration, a relationship predicated on mutual consent, and evidenced by the terms of the contract between the parties, conduct of the parties, and all circumstances surrounding transactions."
The trial court was correct in holding the relationship between the parties was that of landlord and tenant and its decision is affirmed. — Affirmed.

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Subsection (a)(5), referred to in subsec. (b), was redesignated subsec. (a)(4) of this section by Pub. L. 110–28, title VIII, §8103(c)(1)(B), May 25, 2007, 121 Stat. 189 .
The Fair Labor Standards Amendments of 1966, referred to in subsec. (b), is Pub. L. 89–601, Sept. 23, 1966, 80 Stat. 830 . For complete classification of this Act to the Code, see Short Title of 1966 Amendment note set out under section 201 of this title and Tables.
The Education Amendments of 1972, referred to in subsec. (b), is Pub. L. 92–318, June 23, 1972, 86 Stat. 235 . Title IX of the Act, known as the Patsy Takemoto Mink Equal Opportunity in Education Act, is classified principally to chapter 38 (§1681 et seq.) of Title 20, Education. For complete classification of title IX to the Code, see Short Title note set out under section 1681 of Title 20 and Tables.
The Fair Labor Standards Amendments of 1974, referred to in subsec. (b), is Pub. L. 93–259, Apr. 8, 1974, 88 Stat. 55 . For complete classification of this Act to the Code, see Short Title of 1974 Amendment note set out under section 201 of this title and Tables.
The Social Security Act, referred to in subsec. (f)(1), is act Aug. 14, 1935, ch. 531, 49 Stat. 620 . Title II of such Act is classified generally to subchapter II (§401 et seq.) of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.
In subsec. (e)(1), "chapter 67 of title 41" substituted for "the Service Contract Act of 1965 (41 U.S.C. 351–357)" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854 , which Act enacted Title 41, Public Contracts.
In subsec. (e)(2), "chapter 67 of title 41" substituted for "the Service Contract Act of 1965" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854 , which Act enacted Title 41, Public Contracts.
2007-Subsec. (a)(1). Pub. L. 110–28, §8102(a), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "except as otherwise provided in this section, not less than $4.25 an hour during the period ending on September 30, 1996, not less than $4.75 an hour during the year beginning on October 1, 1996, and not less than $5.15 an hour beginning September 1, 1997;".
1996-Subsec. (a)(1). Pub. L. 104–188, §2104(b), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "except as otherwise provided in this section, not less than $3.35 an hour during the period ending March 31, 1990, not less than $3.80 an hour during the year beginning April 1, 1990, and not less than $4.25 an hour after March 31, 1991;".
1989-Subsec. (a)(1). Pub. L. 101–157, §2, amended par. (1) generally. Prior to amendment, par. (1) read as follows: "not less than $2.65 an hour during the year beginning January 1, 1978, not less than $2.90 an hour during the year beginning January 1, 1979, not less than $3.10 an hour during the year beginning January 1, 1980, and not less than $3.35 an hour after December 31, 1980, except as otherwise provided in this section;".
1977-Subsec. (a)(1). Pub. L. 95–151, §2(a), substituted "not less than $2.65 an hour during the year beginning January 1, 1978, not less than $2.90 an hour during the year beginning January 1, 1979, not less than $3.10 an hour during the year beginning January 1, 1980, and not less than $3.35 an hour after December 1, 1980" for "not less than $2 an hour during the period ending December 31, 1974, not less than $2.10 an hour during the year beginning January 1, 1975, and not less than $2.30 an hour after December 31, 1975".
1974-Subsec. (a)(1). Pub. L. 93–259, §2, substituted "not less than $2 an hour during the period ending December 31, 1974, not less than $2.10 an hour during the year beginning January 1, 1975, and not less than $2.30 an hour after December 31, 1975" for "not less than $1.40 an hour during the first year from the effective date of the Fair Labor Standards Amendments of 1966 and not less than $1.60 an hour thereafter".
1966-Subsec. (a). Pub. L. 89–601, §301(a), inserted ", or is employed in an enterprise engaged in commerce or in the production of goods for commerce," in opening provisions.
1963-Subsec. (d). Pub. L. 88–38 added subsec. (d).
1961-Subsec. (a). Pub. L. 87–30, §5(a)(1), inserted "in any workweek" in opening provisions.
1956-Subsec. (a)(3). Act Aug. 8, 1956, added par. (3).
1955-Subsec. (a)(1). Act Aug. 12, 1955, increased minimum wage from not less than 75 cents an hour to not less than $1 an hour.
1949-Subsec. (a). Act Oct. 26, 1949, §6(a), (b), struck out subpars. (1), (2), (3), and (4), inserted subpar. (1) fixing the minimum wage rate at not less than 75 cents an hour, and redesignated subpar. (5) as (2).
1940-Subsec. (a)(5). Act June 26, 1940, added par. (5).
Pub. L. 114–61, §1(c), Oct. 7, 2015, 129 Stat. 546 , provided that: "This Act [amending provisions set out as notes under this section], and the amendments made by this Act, shall take effect as of September 29, 2015."
Pub. L. 110–28, title VIII, §8102(b), May 25, 2007, 121 Stat. 188 , provided that: "The amendment made by subsection (a) [amending this section] shall take effect 60 days after the date of enactment of this Act [May 25, 2007]."
Pub. L. 110–28, title VIII, §8103(c)(2), May 25, 2007, 121 Stat. 189 , provided that: "The amendments made by this subsection [amending this section and repealing sections 205 and 208 of this title] shall take effect 60 days after the date of enactment of this Act [May 25, 2007]."
Pub. L. 93–259, §5(b), Apr. 8, 1974, 88 Stat. 56 , provided that the amendment made by that section is effective Apr. 8, 1974.
Pub. L. 88–38, §4, June 10, 1963, 77 Stat. 57 , provided that: "The amendments made by this Act [amending this section and enacting provisions set out below] shall take effect upon the expiration of one year from the date of its enactment [June 10, 1963]: Provided, That in the case of employees covered by a bona fide collective bargaining agreement in effect at least thirty days prior to the date of enactment of this Act [June 10, 1963], entered into by a labor organization as defined in section 6(d)(4) of the Fair Labor Standards Act of 1938, as amended [subsec. (d)(4) of this section], the amendments made by this Act shall take effect upon the termination of such collective bargaining agreement or upon the expiration of two years from the date of enactment of this Act [June 10, 1963], whichever shall first occur."
Act Aug. 12, 1955, ch. 867, §3, 69 Stat. 711 , provided that the amendment made by section 3 is effective Mar. 1, 1956.
"(a) In General.-Section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) shall apply to American Samoa and the Commonwealth of the Northern Mariana Islands.
"(a) Report.-The Government Accountability Office shall assess the impact of minimum wage increases that have occurred pursuant to section 8103 [of Pub. L. 110–28, amending this section, repealing sections 205 and 208 of this title, and enacting provisions set out as notes under this section], and not later than April 1, 2017, shall transmit to Congress a report of its findings. The Government Accountability Office shall submit a subsequent report not later than April 1, 2020.
"(b) Economic Information.-To provide sufficient economic data for the conduct of any report under subsection (a) the Bureau of the Census of the Department of Commerce shall include and separately report on American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the Virgin Islands in its County Business Patterns data with the same regularity and to the same extent as each Bureau collects and reports such data for the 50 States. In the event that the inclusion of American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the Virgin Islands in such surveys and data compilations requires time to structure and implement, the Bureau of the Census shall in the interim annually report the best available data that can feasibly be secured with respect to such territories. Such interim report shall describe the steps the Bureau will take to improve future data collection in the territories to achieve comparability with the data collected in the United States. The Bureau of the Census, together with the Department of the Interior, shall coordinate their efforts to achieve such improvements.
"(c) Report on Alternative Methods of Increasing the Minimum Wage in American Samoa.-Not later than 1 year after the date of enactment of 'An Act to amend the Fair Minimum Wage Act of 2007 to reduce a scheduled increase in the minimum wage applicable to American Samoa' [Pub. L. 114–61, approved Oct. 7, 2015], the Government Accountability Office shall transmit to Congress a report on alternative ways of increasing the minimum wage in American Samoa to keep pace with the cost of living in American Samoa and to eventually equal the minimum wage set forth in section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1))."
"(1) Employee hours.-During any month in which employees are to be employed in an establishment under this section, the proportion of employee hours of employment to the total hours of employment of all employees in such establishment may not exceed a proportion equal to one-fourth of the total hours of employment of all employees in such establishment.
"(A) Prohibition.-No employer may take any action to displace employees (including partial displacements such as reduction in hours, wages, or employment benefits) for purposes of hiring individuals at the wage authorized in subsection (a).
"(B) Disqualification.-If the Secretary determines that an employer has taken an action in violation of subparagraph (A), the Secretary shall issue an order disqualifying such employer from employing any individual at such wage.
"(e) Notice.-Each employer shall provide to any eligible employee who is to be paid the wage authorized by subsection (a) a written notice before the employee begins employment stating the requirements of this section and the remedies provided by subsection (f) for violations of this section. The Secretary shall provide to employers the text of the notice to be provided under this subsection.
"(f) Enforcement.-Any employer who violates this section shall be considered to have violated section 15(a)(3) of the Fair Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)). Sections 16 and 17 of such Act (29 U.S.C. 216 and 217) shall apply with respect to the violation.
"(iv) For purposes of this subparagraph, the term 'employer' means with respect to an employee an employer who is required to withhold payroll taxes for such employee.
"(i) In general.-An individual is responsible for providing the requisite proof of previous period or periods of employment with other employers. An employer's good faith reliance on the proof presented to the employer by an individual shall constitute a complete defense to a charge that the employer has violated subsection (b)(2) with respect to such individual.
"(ii) Regulations.-The Secretary of Labor shall issue regulations defining the requisite proof required of an individual. Such regulations shall establish minimal requirements for requisite proof and may prescribe that an accurate list of the individual's employers and a statement of the dates and duration of employment with each employer constitute requisite proof.
"(2) On-the-job training.-The term 'on-the-job training' means training that is offered to an individual while employed in productive work that provides training, technical and other related skills, and personal skills that are essential to the full and adequate performance of such employment.
Pursuant to section 503(c) of the Covenant to Establish a Commonwealth of the Northern Mariana Islands with the United States of America, as set forth in Pub. L. 94–241, Mar. 24, 1976, 90 Stat. 263 , set out as a note under section 1801 of Title 48, Territories and Insular Possessions, this section is inapplicable to the Northern Mariana Islands.


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text:
RE: NON-DISCLOSURE BEFORE THE JUDICIAL AND BAR COUNCIL OF THE ADMINISTRATIVE CASE FILED AGAINST JUDGE JAIME V. QUITAIN, IN HIS CAPACITY AS THE THEN ASST. REGIONAL DIRECTOR OF THE NATIONAL POLICE COMMISSION, REGIONAL OFFICE XI, DAVAO CITY.
Judge Jaime Vega Quitain was appointed Presiding Judge of the Regional Trial Court (RTC), Branch 10, Davao City on May 17, 2003. Subsequent thereto, the Office of the Court Administrator (OCA) received confidential information that administrative and criminal charges were filed against Judge Quitain in his capacity as then Assistant Regional Director, National Police Commission (NAPOLCOM), Regional Office 11, Davao City, as a result of which he was dismissed from the service per Administrative Order (A.O.) No. 183 dated April 10, 1995.
In the Personal Data Sheet (PDS) submitted to the Judicial and Bar Council (JBC) on November 26, 2001, Judge Quitain declared that there were five criminal cases (Criminal Cases Nos. 18438, 18439, 22812, 22813, and 22814) filed against him before the Sandiganbayan, which were all dismissed. No administrative case was disclosed by Judge Qutain in his PDS.
This refers to the administrative complaint against Jaime Vega Quitain, Assistant Regional Director, National Police Commission (NAPOLCOM), Regional Office No. 11, Davao City, for Grave Misconduct (Violation of Art. 48, in relation to Arts. 171 and 217 of the Revised Penal Code and Art. IX of the Civil Service Law) filed by the NAPOLCOM.
After circumspect study, I am in complete accord with the above findings and recommendation of the NAPOLCOM.
It was established that the falsification could not have been consummated without respondent's direct participation, as it was upon his direction and approval that disbursement vouchers were prepared showing the falsified amount. The subsequent endorsement and encashment of the check by respondent only shows his complete disregard for the truth which per se constitutes misconduct and dishonesty of the highest order. By any standard, respondent had manifestly shown that he is unfit to discharge the functions of his office. Needless to stress, a public office is a position of trust and public service demands of every government official or employee, no matter how lowly his position may be, the highest degree of responsibility and integrity and he must remain accountable to the people. Moreover, his failure to adduce evidence in support of his defense is a tacit admission of his guilt. Let this be a final reminder to him that the government is serious enough to [weed out] misfits in the government service, and it will not be irresolute to impose the severest sanction regardless of personalities involved. Accordingly, respondent's continuance in office becomes untenable.
WHEREFORE, and as recommended by the NAPOLCOM, Assistant Regional Director Jaime Vega Quitain is hereby DISMISSED from the service, with forfeiture of pay and benefits, effective upon receipt of a copy hereof.
Done in the City of Manila, this 10th day of April in the year of our Lord, nineteen hundred and ninety-five.
In a letter dated October 22, 2003 addressed to DCA Lock, Judge Quitain denied having committed any misrepresentation before the JBC. He alleged that during his interview, the members thereof only inquired about the status of the criminal cases filed by the NAPOLCOM before the Sandiganbayan, and not about the administrative case simultaneously filed against him. He also alleged that he never received from the Office of the President an official copy of A.O. No. 183 dismissing him from the service.
Thereafter, DCA Lock directed Judge Quitain to explain within ten (10) days from notice why he did not include in his PDS, which was sworn to before a notary public on November 22, 2001, the administrative case filed against him, and the fact of his dismissal from the service.
In his letters dated March 13, 2004 and June 17, 2004, respondent explained that during the investigation of his administrative case by the NAPOLCOM Ad Hoc Committee, one of its members suggested to him that if he resigns from the government service, he will no longer be prosecuted; that following such suggestion, he tendered his irrevocable resignation from NAPOLCOM on June 1, 1993 which was immediately accepted by the Secretary of the Department of Interior and Local Governments; that he did not disclose the case in his PDS because he was of the "honest belief" that he had no more pending administrative case by reason of his resignation; that his resignation "amounted to an automatic dismissal" of his administrative case considering that "the issues raised therein became moot and academic"; and that had he known that he would be dismissed from the service, he should not have applied for the position of a judge since he knew he would never be appointed.
In order that this Office may thoroughly and properly evaluate the matter, we deemed it necessary to go over the records of the subject administrative case against Judge Jaime V. Quitain, particularly the matter that pertains to Administrative Order No. 183 dated 10 April 1995. On 15 May 2004, we examined the records of said administrative case on file with the NAPOLCOM, Legal Affairs Service, and secured certified [true] copies of pertinent documents.
After careful perusal of the documents and records available, including the letters- explanations of Judge Jaime V. Quitain, this Office finds that there are reasonable grounds to hold him administratively liable.
24. Have you ever been charged with or convicted of or otherwise imposed a sanction for the violation of any law, decree, ordinance or regulation by any court, tribunal or any other government office, agency or instrumentality in the Philippines or in any foreign country or found guilty of an administrative offense or imposed any administrative sanction? [ / ] Yes [ ] No. If your answer is "Yes" to any of the questions, give particulars.
Former National Police Commission (Napolcom) acting regional director Jaime Quitain yesterday appealed for understanding to those allegedly behind his ouster from his post two years ago. Quitain, who was one of the guests in yesterday's Kapehan sa Dabaw, wept unabashedly as he read his prepared statement on his dismissal from government service.
Quitain claimed that after Secretary Luis Santos resigned from the Department of Interior and Local Governments in 1991, a series of administrative charges were hurled against him by some regional employees.
"I was dismissed from the Napolcom Office without due process," Quitain said.
He also said he had no idea as to who the people (sic) are behind the alleged smear campaign leveled against him.
"Whoever is behind all this, I have long forgiven you. My only appeal to you, give me my day in court, give me the chance to clear my name, the only legacy that I can leave to my children," Quitain said in his statement.
"It is my constitutional right to be present in all proceedings of the administrative case," he also said.
Quitain was appointed Assistant Regional Director of Napolcom in 1991 by then President Corazon Aquino upon the recommendation of Secretary Santos. He was later designated Napolcom acting regional director for Region XI.
Former assistant regional director Jaime Quitain of the National Police Commission (Napolcom) vowed yesterday to clear his name in court from charges of tampering with an official receipt.
Quitain[,] who is running for a council seat, expressed confidence that he would soon be vindicated in court against the group that plotted his ouster from office: He said his only appeal was for Interior and Local Government Secretary Rafael Alunan to grant him his day in court to answer the charges.
"Whoever was behind all of these things, I have long forgiven them," Quitain said.
"Just give me the chance to clear my name because this is the only legacy that I can give my children," Quitain said.
While the records of the subject administrative case on file with the NAPOLCOM Office does not bear proof of receipt of Administrative Order No. 183 by Judge Quitain, the same does not necessarily mean that he is totally unaware of said Administrative Order. As shown by the above-quoted newspaper clippings, Judge Quitain even aired his appeal and protest to said Administrative Order.
Judge Quitain asseverated that he should not have applied with the JBC had he known that he was administratively charged and was consequently dismissed from the service since he will not be considered. But this may be the reason why he deliberately concealed said fact. His claim that he did not declare the administrative case in his Personal Data Sheet because of his honest belief that there is no administrative or criminal case that would be filed against him by reason of his resignation and the assurance made by the NAPOLCOM that no administrative case will be filed, does not hold water. It is rather absurd for him to state that his resignation from the NAPOLCOM amounts to an automatic dismissal of whatever administrative case filed against him because when he resigned and relinquished his position, the issues raised therein became moot and academic. He claims that he did not bother to follow up the formal dismissal of the administrative case because of said belief. All these are but futile attempts to exonerate himself from administrative culpability in concealing facts relevant and material to his application in the Judiciary. As a member of the Bar, he should know that his resignation from the NAPOLCOM would not obliterate any administrative liability he may have incurred[,] much less, would it result to the automatic dismissal of the administrative case filed against him. The acceptance of his resignation is definitely without prejudice to the continuation of the administrative case filed against him. If such would be the case, anyone charged administratively could easily escape from administrative sanctions by the simple expedient of resigning from the service. Had it been true that Judge Quitain honestly believes that his resignation amounts to the automatic dismissal of his administrative case, the least he could have done was to personally verify the status thereof. He should not have relied on the alleged assurance made by the NAPOLCOM.
On the strength of his misrepresentation, Judge Quitain misled the Judicial and Bar Council by making it appear that he had a clean record and was qualified to join the Judiciary. His prior dismissal from the government service is a blot on his record, which has gone [worse] and has spread even more because of his concealment of it. Had he not concealed said vital fact, it could have been taken into consideration when the Council acted on his application. His act of dishonesty renders him unfit to join the Judiciary, much less remain sitting as a judge. It even appears that he was dismissed by the NAPOLCOM for misconduct and dishonesty.
Thus, the OCA recommended that: (1) the instant administrative case against respondent be docketed as an administrative matter; and (2) that he be dismissed from the service with prejudice to his reappointment to any position in the government, including government-owned or controlled corporations, and with forfeiture of all retirement benefits except accrued leave credits.
Respondent was required to Comment.
23. Is there any pending civil, criminal, or administrative (including disbarment) case or complaint filed against you pending before any court, prosecution office, any other office, agency or instrumentality of the government, or the Integrated Bar of the Philippines?
The filing of the administrative case against him as well as the proceedings had thereon and the decision rendered therein, without his knowledge, could have probably occurred during his "exile period" when he was detailed indefinitely in Manila. The proceedings had in the said administrative case are null and void since he was denied due process.
Respondent's Comment was submitted to the OCA for evaluation, report and recommendation.
OCA submitted its Memorandum dated August 11, 2005 stating therein that it was adopting its earlier findings contained in its Memorandum dated September 3, 2004. Based on the documents presented, it can not be denied that at the time Judge Quitain applied as an RTC judge, he had full knowledge of A.O. No. 183 dismissing him from government service. Considering that Judge Quitain's explanations in his Comment are but mere reiterations of his allegations in the previous letters to the OCA, the OCA maintained its recommendation that Judge Quitain be dismissed from the service with prejudice to his reappointment to any position in the government, including government-owned or controlled corporations, and with forfeiture of all retirement benefits except accrued leave credits.
The Court fully agrees with the disquisition and the recommendation of the OCA.
It behooves every prospective appointee to the Judiciary to apprise the appointing authority of every matter bearing on his fitness for judicial office, including such circumstances as may reflect on his integrity and probity. These are qualifications specifically required of appointees to the Judiciary by Sec. 7(3), Article VIII of the Constitution.
In this case, Judge Quitain failed to disclose that he was administratively charged and dismissed from the service for grave misconduct per A.O. No. 183 dated April 10, 1995 by no less than the former President of the Philippines. He insists that on November 26, 2001 or before he filed with the JBC his verified PDS in support of his application for RTC Judge, he had no knowledge of A.O. No. 183; and that he was denied due process. He further argues that since all the criminal cases filed against him were dismissed on August 2, 1995 and July 17, 2000, and considering the fact that he resigned from office, his administrative case had become moot and academic.
Respondent's contentions utterly lack merit.
No amount of explanation or justification can erase the fact that Judge Quitain was dismissed from the service and that he deliberately withheld this information. His insistence that he had no knowledge of A.O. No. 183 is belied by the newspaper items published relative to his dismissal. It bears emphasis that in the Mindanao Times dated April 18, 1995, Judge Quitain stated in one of his interviews that "I was dismissed from the (Napolcom) office without due process." It also reads: "Quitain, who was one of the guests in yesterday's Kapehan sa Dabaw, wept unabashedly as he read his prepared statement on his dismissal from the government service." Neither can we give credence to the contention that he was denied due process. The documents submitted by the NAPOLCOM to the OCA reveal that Commissioner Alexis C. Canonizado, Chairman Ad Hoc Committee, sent him summons on March 19, 1993 informing him that an administrative complaint had been filed against him and required him to file an answer. Then on March 29, 1993, respondent, through his counsel, Atty. Pedro Castillo, filed an Answer. In administrative proceedings, the essence of due process is simply an opportunity to be heard, or an opportunity to explain one's side or opportunity to seek a reconsideration of the action or ruling complained of. Where opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial of due process. Furthermore, as we have earlier mentioned and which Judge Quitain ought to know, cessation from office by his resignation does not warrant the dismissal of the administrative complaint filed against him while he was still in the service nor does it render said administrative case moot and academic. Judge Quitain was removed from office after investigation and was found guilty of grave misconduct. His dismissal from the service is a clear proof of his lack of the required qualifications to be a member of the Bench.
x x x The important consideration is that he had a duty to inform the appointing authority and this Court of the pending criminal charges against him to enable them to determine on the basis of his record, eligibility for the position he was seeking. He did not discharge that duty. His record did not contain the important information in question because he deliberately withheld and thus effectively hid it. His lack of candor is as obvious as his reason for the suppression of such a vital fact, which he knew would have been taken into account against him if it had been disclosed."
Thus, we find respondent guilty of dishonesty. "Dishonesty" means "disposition to lie, cheat or defraud; unworthiness; lack of integrity."
A fine of not less than P20,000.00 but not exceeding P40,000.00.
By his concealment of his previous dismissal from the public service, which the Judicial and Bar Council would have taken into consideration in acting on his application, Judge Cube committed an act of dishonesty that rendered him unfit to be appointed to, and to remain now in, the Judiciary he has tarnished with his falsehood.
WHEREFORE, Judge Enrique A. Cube of the Metropolitan Trial Court of Manila is DISMISSED with prejudice to his reappointment to any position in the government, including government-owned or controlled corporations, and with forfeiture of all retirement benefits. This decision is immediately executory.
We cannot overemphasize the need for honesty and integrity on the part of all those who are in the service of the Judiciary. We have often stressed that the conduct required of court personnel, from the presiding judge to the lowliest clerk of court, must always be beyond reproach and circumscribed with the heavy burden of responsibility as to let them be free from any suspicion that may taint the Judiciary. We condemn, and will never countenance any conduct, act or omission on the part of all those involved in the administration of justice, which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the Judiciary.
Considering the foregoing, Judge Quitain is hereby found guilty of grave misconduct. He deserves the supreme penalty of dismissal.
However, on August 9, 2007, the Court received a letter from Judge Quitain addressed to the Chief Justice stating that he is tendering his irrevocable resignation effective immediately as Presiding Judge of the Regional Trial Court, Branch 10, Davao City. Acting on said letter, "the Court Resolved to accept the irrevocable resignation of Judge Jaime V. Quitain effective August 15, 2007, without prejudice to the decision of the administrative case."
Verily, the resignation of Judge Quitain which was accepted by the Court without prejudice does not render moot and academic the instant administrative case. The jurisdiction that the Court had at the time of the filing of the administrative complaint is not lost by the mere fact that the respondent judge by his resignation and its consequent acceptance - without prejudice - by this Court, has ceased to be in office during the pendency of this case. The Court retains its authority to pronounce the respondent official innocent or guilty of the charges against him. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications. Indeed, if innocent, the respondent official merits vindication of his name and integrity as he leaves the government which he has served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.
WHEREFORE, in view of our finding that JUDGE JAIME V. QUITAIN is guilty of grave misconduct which would have warranted his dismissal from the service had he not resigned during the pendency of this case, he is hereby meted the penalty of a fine of P40,000.00. It appearing that he has yet to apply for his retirement benefits and other privileges, if any, the Court likewise ORDERS the FORFEITURE of all benefits, except earned leave credits which Judge Quitain may be entitled to, and he is PERPETUALLY DISQUALIFIED from reinstatement and appointment to any branch, instrumentality or agency of the government, including government-owned and/or controlled corporations.
This Decision is immediately executory.
Let a copy of this Decision be attached to Judge Jaime V. Quitain's 201 File.
Puno, C.J., (Chairperson), Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, and Reyes, JJ., concur.
 In Administrative Order No. 136-2005 dated September 5, 2005, respondent was designated as Acting Presiding Judge of RTC, Branch 23, General Santos City, in addition to his regular duties; rollo, p. 145.
 Letter dated October 21, 2003; id. at 53.
 Letter addressed to the Regional Director, National Police Commission, Regional Officer No. 11, Davao City, id. at 52; and letter addressed to then Chairman Jose Lina, Jr. of the NAPOLCOM, id. at 54.
 See Letter of Judge Quitain dated October 22, 2003 addressed to DCA Lock; id. at 10.
 Letter dated March 2, 2004, id at 25.
 Resolution dated 21 September 2004; id. at 120.
 Resolution dated June 28, 2005; id. at 130.
(Gutierrez v. Jusge Belan, 355 Phil. 428, 443 (1998).
 Espidol v. Commission on Elections, G.R. No. 164922, October 11, 2005, citing Quiambao v. Court of Appeals, 454 SCRA 17 (2005).
 Baquerfo v. Sanchez, A.M. No. P-05-1974, April 6, 2005, 455 SCRA 13, 19.
 Black's Law Dictionary, Fifth Ed., p. 421.
 As amended by A.M. No. 01-8-10-SC, effective October 1, 2001.
 A.M. No. 93-7-428-MeTC, October 13, 1993, 227 SCRA 193, 198.
 Baquerfo v. Sanchez, supra note 22, at 15, citing Re: Jovelita Olivas and Antonio Cuyco, 431 Phil. 379, 391 (2002).
 Id., citing Pamintuan v. Ente- Alcantar, 447 SCRA 277 (2004).
 Resolution dated August 14, 2007.
 Victory Liner, Inc. v. Bellosillo, A.M. No. MTJ-00-1321. March 10, 2004.
 Zarate v. Ronualdez, A.M. No. RTJ-94-1140, March 23, 1995.

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A pastor had been diagnosed with a rare cancer. The congregation went to great lengths to pray. After a time he fell into a coma and died. There was a woman in that congregation who later said, “As far as I’m concerned I’m never going to ask God for anything again. Why should I bother? I don’t want to be hurt again.” Have you ever felt that as a Christian? Christians have prayed for all sorts of things that haven’t happened. Sometimes in the quietness of our own soul, though we would admit to no one else, we secretly give up on God because we don’t want to be hurt again.
Turn to Hebrews 11. Let us make four observations that might help us solve this perplexing problem of not being hurt again.
Time and again the writer in Hebrews keeps reiterating and listing all of the things that God did in the Old Testament as a result of faith. We could begin with v.23 “By faith Moses, when he was born, was hidden for three months by his parents…” and when he had grown up he, v. 24 “refused to becalled the son of Pharaoh’s daughter,” and v. 27 it says, “he left Egypt, not being afraid of the anger of the king, forhe endured as seeing him who is invisible.” We could begin to recount all the miracles that God did in Moses’ life and ministry, such as themanna that was supplied as God miraculously took care of the people after He miraculously paved the way for them to go though the Red Sea.
In v. 30 “By faith the wall of Jericho fell down, after they were compassed about seven days.” Today you can go to Israel and see the ruins of ancient Jericho – several acres – and we’re reminded of the great miracle that God did there in taking the walls down. By faith Rahab the harlot did not perish along with those who were disobedient, after she had welcomed the spies in peace v. 31.
The writer becomes very excited and knows he can’t include everyone, so in v. 32 he says, “What more shall I say?” …. Gideon, Barak, Samson, Jephthae, David, Samuel and of the prophets: who through faith subdued kingdoms, wrought righteousness, obtained promises, stopped the mouths of lions, quenched the violence of fire, and much more.
And today, just like back then sometimes faith changes our circumstances, and there are times when God heals people with cancer. There are times when we cry out to God and say “O God, this situation is too much for me. I would ask for Your intervention.” And God intervenes, He does miracles, and straightens out all sorts of situations because God responds to people’s faith in prayer.
But there is a second observation. In the middle of verse 35 the tone changes. Notice what it says: “... Some were tortured, refusing to accept release, so that they might rise againt o a better life: Others suffered mocking and flogging and even chains and imprisonment. They were stoned, they were sawn in two, they were killed with the sword. They went about in skins of sheep and goats, destitute, afflicted, mistreated..." and there was no word from heaven to deliver them.
Where was God when all those things were happening? Where was the deliverance? Where was the God who could speak the word, and those tormenters and those captors could be put to death and smitten down? Was He indifferent? Didn’t He care about His people? Where was He? Oh yes, sometimes faith changes our circumstances, but sometimes faith does NOT change our circumstances. Sometimes God allows some people to be delivered, and others are not delivered, and both groups make the 11th chapter of Hebrews.
We read in chptr. 12 of Acts that James was killed – Herod put him to death – and a few verses later it says Peter was delivered. Sometimes faith changes circumstance, sometimes faith does NOT change our circumstances and God allows us to keep our circumstances and we have to go through the fire rather being delivered from it.
The reason that these people made the 11th chapter of Hebrews, even though they did not experience deliverance, was because they kept on believing God to the very end, and didn’t implicate God or judge Him. Remember what the Bible teaches us? If there’s anything clear in the Bible it is simply this: Oh friends, don’t ever get your theology from circumstances. If we were to get our theology from circumstances we would not necessarily conclude that God loves the work, would we? Ten thousand people a day are starving in different countries of the world. And little bit of rain would go a long way to help them, but God has witholden the rain. Does God love them? If you were to go by circumstances you would conclude that God doesn’t, but God does love the world, and we cannot go by what it appears to be. We must ultimately go by the Word of God. We can’t go by appearances.
I love that 11th chapter of the Book of John. The Bible says that Jesus loved Martha, Mary, and Lazarus. A few verses later it says Lazarus died. When a Christian dies, does that mean that God doesn’t love him? Is suffering or an early death an improper reflection on the love of God? The answer is NO, because it says explicitly that God loved Lazarus, and then it goes on to say that Lazarus, the one whom Jesus loved, died. Sometimes God’s choicest servants die young, but it is never a reflection on God’s love, because as Paul says, “Who shall separate us fro the love of Christ? Paul is saying you cannot judge God by what is happening.
Faith is not merely getting from God the things that we want. Faith is the ability to accept whatever God gives us. It is the ability to go on believing God regardless of the circumstances. Ultimately it is believing His Word and not what is happening.
Sometimes when we pray we pray rather selfishly – we pray for things that God doesn’t want to give us. James 4:3 says that “You ask and do not receive, because you ask wrongly, to spend it on your passions.” Sometimes we say, “Lord, be my good-luck charm: Give me this job. Solve this problem. Take care of this difficulty Lord.” And all the while God may be saying, “I am interested in something much deeper than simply solving superficial problems.” God is often times wanting to get at our hearts. That’s why there are times when people of faith are not delivered, even when we might expect them to be.
There are times inour life that we look at circumstances and all we can say is “O God, I belive thatr you are able to ….., but if you don’t let it be known to veryone who lsitinge,knows me, that I will not swerce in my allegieance, belief, and conficens in thelving and tru God. If yo live that way, yu belong in the 11th chapter of Hebrews, even if yo don’t see that deliverance, even when god doesn’t do the ghings that yo thin He ought to do. We belong there because we go on believing despite appearances.
Notice what it says in v. 39 “And all these, though commended through their faith, did not receive what was promised”. That doesn’t mean that God doesn’t fulfill His promises, it’s just that He doesn’t’ necessarily fulfill them every weekend. The life of faith is the life that believes that beyond the grave there are promises that will be fulfilled, because all the promises of God are yes and amen in Jesus Christ. We sometimes live without the fulfillment of those promises, but some day we will have them.
Hebrews 12:3-4 “Consider him who endured from sinners such hostility against himself, so that you may not grow weary or fainthearted." If you had seen Jesus Christ die on that cross, and if you had been there to hear Him cry out, “Eli, Eli, lama sabachthani, that is, 'My God, my God, why hast thou forsaken me?'” (Matthew 27:46) youwould have concluded that God didn’t care. Maybe after all God wasn’t worried about His son. But appearances to the contrary, Jesus Christ kept believing, trusting and knowing that eventually His commitment to the father’s will would be vindicated. That’s why the Bible says in Hebrews. 12:2, “Who for the joy that was set before him endured thecorss, despising the shame, and is seated at the right hand of the throne of God.” Now if you’ve ever seen someone die of cancer, as you look at them you may say to yourself, “I can’t believe that God loves them.” Appearances to the contrary – those who go on believing God like Jesus Christ will be honored and exalted because they kept on believing despite the fact that there are times when the promises of the Word of God seem to go contrary to what appears to be the case. Isn’t it wonderful to know that we can be people of faith no matter where we are. Isn’t in wonderful that you can belong in the 11th chapter of Hebrews even when God doesn’t do the things that you think He ought to do. I think one of the easiest prayers to pray, and we’ve all done this, is to say, “Oh God, solve this problem, or God take care of this difficulty,” but sometimes God wants to withhold that answer to try our faith.
Remember John the Baptist? He was there in prison and began to doubt whether Jesus was the Messiah. There are times we are told that we never should have doubts and I suppose to some extend that’s true, but there are times you really begin to wonder: Is it really the way it seems to be? Is it the way the Bible teaches? Then Jesus answered John’s disciples when they came to ask him about his Messiahship – “And blessed is the one who is not offended by me." (Matthew 11:2-6).
I’d like to give that a real contemporary translation. Blessed is the person who is not upset with the way I run My business.
I believe there are times when we have to pray like Jesus did in Gethsemane when He was agonizing before the Father, and it seemed in His humanity almost that He was going to capitulate. Remember He says, “Father, if this cup will not pass except I drink it, not my will but Thine be done.” There are times we have to say, “Oh God, if it be possible, let this cup pass form me, but if not, Thy will be done.” When you live like that you belong in the 11th chapter of Hebrews even when God doesn’t do the things that you’re convinced He should.
Into Thy hand of love I would my all resign.
And help me still to say, My Lord, Thy will be done.
You’ll never experience revival if you get upset with the way God runs His business.

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The United States Government shall provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation of an officer, employee, member of the Armed Forces, or other agent described in subsection (a), with respect to any civil action or criminal prosecution or investigation arising out of practices described in that subsection, whether before United States courts or agencies, foreign courts or agencies, or international courts or agencies, under the same conditions, and to the same extent, to which such services and payments are authorized under section 1037 of title 10.
Pub. L. 109–148 and Pub. L. 109–163 enacted identical sections. The section enacted by Pub. L. 109–148, but not the section enacted by Pub. L. 109–163, was amended by Pub. L. 109–366, see 2006 Amendment notes below. The text of this section is based on the text of section 1004 of Pub. L. 109–148 as amended by Pub. L. 109–366.
2008—Subsec. (b). Pub. L. 110–181, §1063(d)(1), as amended by Pub. L. 110–417, made technical correction to directory language of Pub. L. 109–366, §8(a)(3). See 2006 Amendment note below.
2006—Subsec. (b). Pub. L. 109–366, §8(a)(3), as amended by Pub. L. 110–181, §1063(d)(1), as amended by Pub. L. 110–417, inserted "whether before United States courts or agencies, foreign courts or agencies, or international courts or agencies," after "described in that subsection,".
Pub. L. 109–366, §8(a)(1), (2), substituted "shall provide" for "may provide" and inserted "or investigation" after "criminal prosecution".
Pub. L. 110–181, div. A, title X, §1063(d), Jan. 28, 2008, 122 Stat. 323, provided that the amendments made by section 1063(d), which amended this section and provisions set out as a note under section 801 of Title 10, Armed Forces, are effective as of Oct. 17, 2006, and as if included in Pub. L. 109–366 as enacted.
"(3) relates to actions occurring between September 11, 2001, and December 30, 2005."


Thinking of appealing processor+function claims? Beware a sua sponte 112 rejection.
By now, you are probably aware of the numerous patent law changes made under the America Invents Act. If you are involved in patent application preparation and/or prosecution, you are probably also aware of the recent tendencies of Examiners to (rightly or wrongly) interpret claim terms under 35 U.S.C. 112, sixth paragraph.
One trend that you may not be aware of from 2013, however, is the growing number of Appeals involving computer related claims where the Patent Trial and Appeals Board (PTAB) issued one or more new grounds of rejection under 35 U.S.C. § 112. These following example cases include claims drafted in ways that patent prosecutors frequently use, in ways that are commonly suggested by Examiners during prosecution, and in ways that have been used to obtain patents for years.
For example, in Ex Parte Smith, Appeal 2012-007631 (application 12/579,383), the following claims were addressed by the PTAB.
generate an opinion timeline for the asset for the user associated with the user identifier.
generating an opinion timeline for the asset for the user associated with the user identifier.
The Examiner did not reject the claims under any section of 35 U.S.C. § 112, and only rejected the claims under the 35 U.S.C. § 102(e). Despite the fact that the PTAB reversed the Examiner’s rejections of the claims under 35 U.S.C. § 102(e), the PTAB issued new grounds for rejecting the above claims under 35 U.S.C. § 112.
First, the PTAB issued a new ground for rejecting claim 1 under 35 U.S.C. § 112, second paragraph, for indefiniteness.
How, you ask? The PTAB interpreted the processor+functional limitations of claim 1 under 35 U.S.C. § 112, sixth paragraph. This is despite the fact that the Examiner did not appear to have this interpretation prior to Appeal.
The PTAB also concluded that the specification did not disclose an algorithm that would transform the processor into a “special purpose processor” for performing the claimed functions. Therefore, the PTAB concluded, the specification failed to include sufficient corresponding structure for interpretation of the processor+functional limitations under 35 U.S.C. § 112, sixth paragraph.
Second, the PTAB issued a new ground for rejection for claim 8 under 35 U.S.C. § 112, first paragraph, as failing to satisfy the written description requirement. Similar to its conclusion with respect to claim 1, the PTAB concluded that the specification included only general statements of the functions to be performed and lacked description as to how the claimed functions are actually performed.
In Ex Parte Erol, Appeal 2011-001143 (application 11/461,109), the following claim was addressed by the PTAB.
perform an action in response to identifying the at least one object descriptor that matches the first object descriptor.
As in Ex Parte Smith, the PTAB in Ex Parte Erol interpreted the processor+functional limitations of claim 18 as invoking 35 U.S.C. § 112, sixth paragraph. This is again despite the fact that the Examiner had not previously interpreted the claims under 35 U.S.C. § 112, sixth paragraph.
Based on this new interpretation, the PTAB issued a new ground for rejection under 35 U.S.C. § 112, second paragraph, for indefiniteness.
In Ex Parte Lakkala, Appeal 2011-005126 (application 10/949,568), the following claim was addressed by the PTAB.
[(iv)] control adding of the created metadata to the content data set.
As in Ex Parte Smith and Ex Parte Erol, claim 27 was not rejected by the Examiner under any section of 35 U.S.C. § 112. Again, however, the PTAB concluded that the processor+functional limitations of claim 27 should be interpreted under 35 U.S.C. § 112, sixth paragraph. And like Ex Parte Smith and Ex Parte Erol, the PTAB issued a new grounds for rejection of claim 27 under 35 U.S.C. § 112, second paragraph, for indefiniteness.
Again, interestingly, the PTAB noted that the Specification does include a flow chart corresponding to the functions of claim 27. The PTAB concluded, however, that “the flow chart presents the process at a high level without reference to the control functions to be performed by the processor.” The PTAB further stated that “[e]ven if the steps shown in the flow chart could somehow be understood as corresponding to the functions ascribed to the claimed processor, the flow chart and accompanying description in the Specification would simply be restating the claimed functions without conveying to a skilled artisan how the processor ensures that the functions are performed.” Therefore, the PTAB concluded that “the Specification fails to disclose an algorithm that transforms the general purpose processor into a special purpose processor programmed to perform the control functions recited in claim 27.
When preparing patent applications involving processor +function claims, it is clear that an algorithm or flowchart should be included and that algorithm, flowchart, or associated description should do more than merely restate the claimed functions. Additionally, it may be wise to discuss the functions of the algorithm or flowchart within the detailed description as being performed by a processor.
For those prosecuting previously filed applications including processor type claims, be conscious of the possibility of new rejections under 112 when considering whether to Appeal applications including claims that have processor+functional limitations. Even if the Examiner does not interpret those types of claims under 35 U.S.C. § 112, sixth paragraph, or reject your claims under 35 U.S.C. § 112, the PTAB might. If the PTAB issues grounds for rejection under 35 U.S.C. § 112, you may have a hard time advancing prosecution post-appeal.


Many investors would be mistaken if they believed that pot stocks have just arrived on the New York Stock Exchange. Before companies selling pot outright were listed, it was the marijuana ancillary businesses that were all the buzz. Companies such as Scotts Miracle-Gro and lighting companies were looked to as a way to earn returns off of marijuana operations. These ancillary businesses did not own or control the marijuana plant which is the reason that investors felt safe to invest their capital in them. This belief that if a company merely does not touch the marijuana plant, that they are free from prosecution is severely mistaken.
For the government to prove a violation of § 856(a)(2) they must prove that IIPR (1) manages or controls (2) as an owner and (3) knowingly and intentionally rents the building (4) of which the tenant’s purpose is to unlawfully manufacture a controlled substance.
As seen in all three of the aforementioned cases, IIPR likewise manages or controls its properties through its ownership of the buildings.24 Although if ownership is not enough, IIPR collects a “management fee” from every tenant and in some situations may even monitor its tenants by “periodically conducting site visits and meeting with tenants to discuss their operations.”25 IIPR’s actions satisfy the first and second elements.
IIPR is a landlord and similarly knows and intends to rent out space to tenants that have the purpose of growing marijuana in violation of the CSA. IIPR purchases the buildings in its portfolio from marijuana growers with the knowledge that its future tenants intend to continue to grow marijuana once they become tenants.
IIPR’s entire business model is based on leasing out their properties to marijuana growers of which they know intend to manufacture marijuana in violation of the CSA.
1 David Reid, Corona beer owner set to buy into world’s largest cannabis grower, CNBC (Oct. 30, 2017), https://www.cnbc.com/2017/10/30/cannabis-drinks-planned-as-constellation-brands-invests-in-canopy-growth-corporation.html.
2 Michael Sheetz, Corona beer maker Constellation ups bet with $4 billion investment in Canopy Growth, CNBC (Aug. 15, 2018), https://www.cnbc.com/2018/08/15/corona-maker-constellation-ups-bet-on-cannabis-with-4-billion-investment.html.
3 Jen Skerritt and Craig Giammona, Coca-Cola is eyeing the cannabis market, Bloomberg (Sept. 24, 2018), https://www.bloomberg.com/news/articles/2018-09-17/coca-cola-eyes-cannabis-market-in-push-beyond-sluggish-sodas.
4 Innovative Indus. Properties Inc., Our Business-Medical Cannabis Industry, http://Innovativeindustrialproperties.com/our-business/. (last visited Sept. 24, 2018).
5 21 U.S.C. § 812 (2018).
7 U.S. v. Oakland Buyers’ Coop., 532 U.S. 483, 493 (2001).
8 U.S. v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 493 (2001).
9 21. U.S.C. § 841 (2018).
10 U.S. v. Gilbert, 496 F. Supp 2.d 1001, 1008 (N.D. Iowa 2007) (quoting U.S. v. Tamez, 941 F.2d 770, 774 (9th Cir. 1991).
11 U.S. v. Tebeau, 713 F.3d 955, 958 (8th Cir. 2013).
15 Id. at 960 (citing U.S. v. Harrison, 133 F.3d 1084 (8th Cir. 1998).
17 Id. (citing U.S. v. Harrison, 133 F.3d at 1086).
18 Harrison, 133 F.3d at 1086.
19 In re Rent-Rite Super Kegs W. Ltd., 484 B.R. 799 (Bankr. CO 2012).
24 Innovative Indus. Properties Inc., Annual Report (Form 10-K) p.6-8, (March 29, 2018).
26 21 U.S.C. § 802(15) (2018).
28 In re Rent-Rite Super Kegs W. Ltd., 484 B.R. at 804.
29 Innovative Indus. Properties Inc., Our Business-Medical Cannabis Industry, http://innovativeindustrialproperties.com/our-business/. (last visited Sept. 24, 2018).
30 Innovative Indus. Properties Inc., Annual Report (Form 10-K) p.25, (March 29, 2018).
Steven Monahan graduated with distinction in 2018 from the McGeorge School of Law. Steven received certificates of concentration in tax and business law while also earning two Witkin Awards for his legal writing. During law school he took internships at the California Franchise Tax Board and Wagner Kirkman Blaine Klomparens & Youmans LLP. During his time at the state, he wrote multiple opening briefs submitted to the Board of Equalization and then assisted Wagner Kirkman with their research needs. Steven benefited greatly from the knowledge of all the tax counsels working in the Tax Administration and Procedure Bureau as well as working with the outstanding partners at Wagner Kirkman.


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Bastian Brunk, research assistant and doctoral student at the Institute for Comparative and Private International Law at the University of Freiburg (Germany), has provided us with the following first thoughts on the CJEU’s groundbreaking Polbud judgment.
(1) Are Articles 49 and 54 TFEU applicable to a transfer of the registered office of a company incorporated under the law of one Member State to the territory of another Member State with the purpose of converting its legal form, when the company has no intention to change the location of its real head office or to conduct real economic activity in the latter Member State?
(2) Is a national legislation that makes the removal of a company from the commercial register and, accordingly, the out-migration of that company conditional upon its liquidation compatible with the freedom of establishment?
Answering these questions, the CJEU made Polbud, the company at stake, a liberal gift and strengthened the mobility of companies within the European Single Market. First, the CJEU stated that the freedom of establishment applies to the transfer of the registered office of a company from one Member State to another even if no real business is intended to be conducted in the latter Member State. Secondly, the CJEU ruled out national legislation providing for the mandatory liquidation of a company if the company requests the removal from the initial commercial register in cases of outward migration.
In September 2011, the shareholders of Polbud, a limited liablity company established under Polish law, decided to transfer the company’s registered office from Poland to Luxembourg. The resolution made no reference to a simultaneous transfer of either the real head office or the place of real economic activity. Based on that resolution, the registry court in Poland recorded the opening of the liquidation procedure. In May 2013, following a resolution adopted by a shareholder meeting in Luxembourg, the registered office of Polbud was transferred to Luxembourg. Polbud was renamed to Consoil Geotechnik and its legal form was changed to the Société à responsabilité limitée (S. à r. l.), the Luxembourgish private limited liability company. Subsequently, Polbud lodged an application with the Polish registry court for its removal from the commercial register. This application was refused to be registered because, as the registry court stated, Polbud failed to provide evidence of the successful execution of a liquidation procedure. Polbud appealed against this decision, arguing that no liquidation was needed because the company continued to exist as a legal person incorporated under Luxembourgish law.
Articles 49 and 54 TFEU provide for the freedom of establishment. According to the CJEU case-law, the concept of “establishment” within the meaning of these Articles is a very broad one, allowing a Union national to participate, on a stable and continuous basis, in the economic life of another Member State and to profit therefrom (CJEU in Gebhard, C-55/94, para. 25 and Almelo, C-470/04, para. 26). It involves the actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period (CJEU in Factortame and Others, C-221/89, para. 20 and Commission v. United Kingdom, C-246/89, para. 21). In order to claim freedom of establishment, it is generally necessary to have secured a permanent presence in the host Member State (CJEU in Centro di Musicologia Walter Stauffer, C-386/04, para. 19 and Schmelz, C-97/09, para. 38). This case law can, generally speaking, be translated as “no freedom of establishment without establishment”.
On the other hand, the CJEU generously extended the application of Articles 49 and 54 TFEU to letterbox companies without “fixed establishment” and/or “permanent presence” in their home Member State. In Centros (C-212/97) the Court ruled that EU law is applied to the set-up of subsidiaries, branches and agencies in other Member States and, in that regard, it is immaterial that the company was formed in one Member State only for the purpose of establishing itself in another Member State, where its main, or indeed entire, business is to be conducted (Centros, para 17).
The CJEU then used its 2009 Cartesio judgment (C-210/06) as an opportunity to, obiter dictu, set guidelines for cross-border transfers of seat. It stated that, on the one hand, a Member state has the power to define both the connecting factor required of a company if it is to be regarded as incorporated under the law of that Member State and, as such, capable of enjoying the right of establishment, and that required if the company is to be able subsequently to maintain that status (thus treating companies as legal creatures of their country of origin). On the other hand, freedom of establishment comprises the right of a company to move from one Member State to another. If domestic legislation of the Member State of origin requires the liquidation of the company, thereby preventing it from converting itself into a legal person governed by the law of the target Member State, such a measure cannot be justified under the rules on freedom of establishment (Cartesio, paras. 110 ff.).
This jurisdiction was complemented by the CJEU in Vale (C-378/10) where the Court clarified the legal position of the Member State of destination. If a Member State allows for the conversion of companies governed by national law, it must also grant the same possibility to foreign EU companies (Vale, para. 46). In the absence of relevant EU-law, the target Member State may set up procedural rules to cover the cross-border conversion but must ensure that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the European Union legal order (principle of effectiveness) (Vale, para. 48).
In her Opinion of 4 May 2017 (see here), AG Kokott took up a distinct position emphasizing the need for actual establishment for the application of Articles 49 and 54. This criterion is sufficiently met, as AG Kokott states, if, at least, the company intends to set up an actual establishment in the sense of conducting at least a nominal economic activity in the target Member State (Opinion, para 36). The AG underlines her position citing the above mentioned CJEU case-law in Factortame and Others (C-221/89), Commission v. United Kingdom (C-246/89), Centro di Musicologia Walter Stauffer (C-386/04) and Schmelz (C-97/09). She concludes that the freedom of establishment “gives economic operators in the European Union the right to choose the location of their economic activity, it does not give them the right to choose the law applicable to them” (Opinion, para. 38).
The CJEU now takes a different point of view: Once formed in accordance with the legislation of a Member State, companies enjoy the full range of that freedom. Nothing new, so far, as Geert van Calster suggests in his comment (see here). But what makes Polbud (r)evolutionary?
First, the CJEU creates legal certainty in an area that is particularly important for the functioning of the European Single Market. In its Cartesio judgment, the Court allowed for the cross-border conversion of EU companies in general but did little to shape the relationship between the involved Member States. Therefore, it was widely thought, that, just like AG Kokott propounds, the conversion of a company from one Member State to another required a genuine economic link with the State of destination. In Polbud, the CJEU clarifies that the regulatory power of a Member State ends when a company converts itself into a company governed by the law of another Member state. It is for the latter State to determine the legal and/or economic conditions that have to be satisfied by the company in order to bring the conversion into effect (paras 33 ff.). Under Articles 49 and 54 TFEU, the State of origin is only allowed to provide legislation for the protection of public interests (such as the protection of creditors, minority shareholders and employees) but cannot impose mandatory liquidation.
Secondly, the CJEU obliges the State of origin to observe the principle of equivalence. This principle, already known from the Vale decision (see above), was generally considered as obliging only the target Member State in cross-border conversion cases to legally treat domestic and foreign companies equally. By contrast, the State of origin was only thought to be bound by the general prohibition of restrictions (i.e. the prohibition of rules hampering or rendering less attractive the exercise of fundamental freedoms, see CJEU in Kraus, C-19/92, para. 32). In Polbud, the CJEU, without being explicit on this point, extends the scope of application of the principle of equivalence to the Member State of origin by stating that “the imposition, with respect to such a cross-border conversion, of conditions that are more restrictive than those that apply to the conversion of a company within that Member State itself” is not acceptable (para. 43).
Finally, recapitulating its jurisdiction in Daily Mail and National Grid Indus (C-371/10), the CJEU points out that exercising the freedom of establishment for the purpose of enjoying the benefit of the most favourable legislation, does not, in itself, amount to an abuse of rights (para. 62). The Court further explains its position saying that “the mere fact that a company transfers its registered office from one Member State to another cannot be the basis for a general presumption of fraud and cannot justify a measure that adversely affects the exercise of a fundamental freedom guaranteed by the Treaty” (para. 63).
As already observed, Polbud encouragingly facilitates the cross-border mobility of companies but, on the other hand, leaves the reader with open questions.
It was high time to free cross-border conversions from the requirement of a genuine economic link with the Member State of destination. The legal situation before Polbud, that allowed letterbox companies to conduct their business in other Member States (which can be compared to initial choice of law) but prevented the formation of letterbox companies through the transfer of an existing company’s registered office to another Member State (which can be compared to subsequent choice of law), was somewhat arbitrary from a legal and economic point of view.
On the other hand, the extension of the scope of application of the principle of equivalence to the Member State of origin can only be seen as inconsistent with the legal doctrine of the freedom of establishment provided for in Articles 49 and 54 TFEU. Heretofore, only EU-foreigners could enjoy the right to non-discrimination, whereas, in regard to EU law, Member States were free to impose (relatively) stricter rules to its own citizens. This principle finds its expression, for example, in the above-mentioned treatment of companies as creatures of their state of origin that the CJEU established in its Cartesio judgment. As the principle of equivalence corresponds to the prohibition of discrimination, it is even more astonishing that the CJEU permits exemptions for overriding reasons in the public interest. These unwritten exemptions generally apply only in cases of restrictions of the freedom of movement (see Kraus, para. 32 and Gebhard, para. 37). On the contrary, discriminations require the strict observance of the catalogue of justifications set out in Article 52 TFEU. In future decisions, the CJEU should recall this clear distinction and cease to further the linguistic ambiguity.

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