A definition of alienation is a child who expresses, freely and persistently, unreasonable negative feelings and beliefs (such as anger, hatred, rejection and/or fear) toward a parent that are significantly disproportionate to the child's actual experience with that parent. This can happen when two parents are divorcing, or when the parents are fighting over custody. Parents may try to alienate the children for various motives, including revenge, power, fear, jealousy, or due to mental disability. Parental Alienation Syndrome (PAS) has three main elements: (1) rejection or denigration of a parent that reaches the level of a campaign; (2) the rejection is irrational (not a reasonable response to the alienated parent's behavior); and (3) it is a partial result of the non-alienated parent's influence. This means that alienation is not just a child having a strong rejection of a parent, or even a child having an irrational disdain for the parent. In order to be Parental Alienation Syndrome all three elements must be met.
• Animosity toward the extended family of the alienated parent.
• Extreme lack of courtesy to rejected parent.
Some other signs of an alienating parent include a parent who forces the child to choose between parents; makes the child take sides; bribes the child with gifts; attempts to make a child feel guilty; and attempt to destroy the loving relationship the other parent has with the child.
In cases with potential child alienation, it is important for the lawyer to investigate. The preferred parent could be attempting to influence the opinion of the child, so an evaluation that determines the child's emotional state, whether loyalty conflicts exist, whether the child has a strong desire to please one parent, or whether the child has a lot of anger toward one parent will help guide a determination of PAS.
It is up to the lawyer to broach the possibility of parental coercion, either through showing "parent bashing" or "brainwashing."
Assessing children in high-conflict custody cases is important to determine whether the child is non-alienated or likely alienated if they align with one parent and show signs of visitation refusal or certain beliefs about the other parent that are likely distorted. Some children may be realistically estranged rather than actually alienated.
Thus, in order to test for these features, psychological testing can be used on the child. This will distinguish whether the child is acting alienated because of actual experiences with the non-preferred parent, or because of the preferred parent's actions. Some testing methods may include projective drawings or an Apperception Test, but these tests do not have clear guidelines and may not be admissible in a forensic setting.
Another way to establish whether one parent is alienating a child is to keep track of the degree to which a child will report thoughts and experiences that are not from the child's direct experience. If the child tries to bring up child support payments, for example, it indicates boundary issues between the parent and child.
Showing the issue of idealization of self and the preferred parent can be done through tests such as the Personality Inventory for Youth. Additionally, keeping a record of times the preferred parent refused to allow the non-preferred parent to speak to the child, pick up the child, or attend school events for the child will help to show a pattern of alienation.
In litigating a case for a parent who has been alienated from their child by the other parent, getting the case to court is extremely important. Toxic parenting spreads quickly, much more quickly than it normally takes a case to make it through the court process. During this time, encourage clients to do their best to maintain some form of contact with their children, despite the anger or scorn the child my display toward the parent. The longer a child is kept away from a parent, the harder it will be to overcome the distance later on.
It is also important to ensure that the non-preferred parent does not begin to act inappropriately after the alienation has started because that poor behavior could be used to classify the child's behavior as a rational reaction to the non-preferred parent.
Additionally, it is imperative to secure a detailed order for parent-child contact that has penalties for non-compliance instilled in them. If the order is violated, swiftly move for the order approved sanctions. Counsel can ask on a pendente lite basis to order consistent contact with between the non-preferred parent and the child. Some of the most common violations that a court will likely deem are against the best interest of the child include refusing to respect visitation rights; taking the child without the other parent's knowledge; and badmouthing the other parent.
If there are allegations of undue influence by the parent during the other parent's parenting time, then a parent can ask the court for a "no contact" during the non-preferred parent's designated time, again with prescribed sanctions for non-compliance. Because cases involving parental alienation are not routine or uniform, finding a custody evaluation or therapist familiar with parental alienation can be a big help in establishing parental alienation. Further, hiring a mental health expert early on will establish symptoms and dangers of parental alienation to the court. This expert, however, should not make custody suggestions or evaluate the family.
The most important part of proving parental alienation is establishing that the child's rejection is unjustified. Counsel should examine the children's complaints about the non-preferred parent to determine whether they are exaggerated or disproportionate to the degree of the children's animosity or fear, and whether the non-preferred parent's behavior would be harmful to the children if the parents were still together. Finding witnesses that can note a change in the child's behavior and attitudes, including relatives, friends, teachers, coaches, or even through videotapes and cards, can help establish a new and unjust disdain for the non-preferred parent.
Child custody evaluations are often the best way to prove parental alienation to a judge. Utilizing a psychologist will be a good place to start in order to get enough information to render an opinion about parental alienation. Examining medical and school records, as well as interviewing the children, the parties and other individuals with relevant information are often best practices. While many individuals believe that a judge can find parental alienation without an expert and a custody evaluation, it is not usually the case.
Custody evaluations can also be used to help determine whether there is parental alienation or realistic estrangement. The difference between an estranged child and an alienated child is that an estranged child has grown apart from the parent for reasons that are reasonable and realistic. In contrast, an alienated child is the victim of one parent's efforts, either conscious or unintentional, to destroy the child's relationship with the other parent. Many child custody cases can turn on this issue as parents make competing allegations about why the children might be aligned more with one parent versus the other by the court. The proper method is to provide several names and suggest that there are others who the parent may find acceptable as well. This allows the parent to make a decision that may importantly effect their life and not feel they are being exploited.
Ultimately, the biggest concern is a child feeling loved. The issue of what arrangement in child parent custodial care can best provide a child with feeling love is essential. This crucial factor needs to be carefully assessed in every custody case.
• Encourage the client to continue showing their love and constancy to the child, even if the child does not want to accept it.
When the abuse claims are child abuse claims another difficulty will be that children can easily be led. A child's testimony, and even memory, can be contaminated. Because of children's impressionability, a lawyer should demand an early discovery of all videotapes, audiotapes, and transcripts of interviews with the accuser. That way, a lawyer can determine if the child is pulling an accusation directly from the other parent. Also, using experts when dealing with a child accuser will be necessary. An expert can find indications that coercion has taken place. These experts will be able to explain the suggestibility of children and possibility of memory distortion.
It is possible to beat a false abuse claim. For instance, the Supreme Court of Maine asserted in Handrahan v. Malenko that the father did not abuse the child, even with abuse claims. Here, a forensic evaluation team fit this case into the "moderate evidence of sexual assault" category and used evidence such as the consistency and specificity of the child's statements about the abuse. The court noted that the investigators did not, however, account for factors weakening the likelihood of abuse, like the age of the child, his inability to recall surrounding details, the fact that this assertion was made in the middle of a custody dispute, and that he had been questioned previously about abuse. In addition, the court notes that an expert witness is only as reliable and trusted as the fact finder allows them to be in each case. The court ultimately determined it could not rely on the child's claims due to the child's inability to distinguish between a truth and a lie during evaluation.
In custody disputes, parties will hire experts in order to testify and strengthen their case. These experts may testify as to custody evaluations, psychological evaluations of either the parents or child, and substance abuse evaluations. They may bring in physicians or other medical professionals. An expert witness must be informed of his or her duties in a conference where both parties are given the opportunity to participate. While preparing for trial, an expert hired by one party will not have a right to meet with the opposing party, or possibly not even the child, without court approval.
Expert opinions are admissible into court when specialized knowledge will assist the trier of fact to understand evidence or to determine the facts pertaining to an issue. The expert's qualification may come from knowledge, skill, experience, training or education. Once qualified, the witness will be able to express an opinion to the court in most states.
Many family law clients have a hard time embracing the fact that expert witnesses are necessary. Clients will often have a difficult time understanding why they cannot testify about their opinion on critical matters involved in the case. They feel they are the most qualified to discuss their own family, so will have a harder time allowing an expert to testify as to the family dynamics. Parties often will worry about the cost of an expert witness. It is imperative to have these experts in certain situations, like when alleging parental alienation, because the expert will be the best way to ensure that the client is put in the best possible position.
It is often very difficult to prove abuse in custody cases because most abuse occurs with no witnesses and a child may recant their statement or refuse to discuss the abuse. When abuse is an issue, the accused parent will explain away the injury or claim from the child, and the other's goal then becomes to disprove that explanation. In order to disprove that explanation, an expert witness will be used. In physical abuse cases, a physician, forensic pathologist, or hospital pediatrician would be best as finding any discrepancies between an explanation and the actual injury. In sexual abuse cases, therapists will likely be necessary to demonstrate sexual abuse occurred, as it can be harder to get physical proof of sexual abuse.
Social workers can also be extremely helpful as expert witnesses because they have education and training in family relationships and dynamics that will help the court determine the family dynamic and how the parent fits with the child based on the child's personality, developmental needs, and past experiences.
Due to a notion of mental health professionals working as "hired guns" to say whatever the attorney needs to prove a point, judges often are skeptical to believe or rely on a mental health professional working with only one party. A mental health professional that is jointly retained, or court appointed, like a Guardian Ad Litem, will be met with much less distrust and given more deference by a judge. Also, judges across most states will make their decisions with the child's best interest in mind, so it is important to ask the expert questions that lead to the conclusion that one parent will be best for the child, rather than its best for the parent.
One of the best ways to prepare for examining another party's expert witness in a custody case is to have an expert brief the attorney on the substantive area of inquiry and point out what the opposing party should be asked about. When asking these questions to opposing counsel, very rarely is it appropriate for an attorney to challenge the expert in their field, but these detailed questions may help to impeach or rebuttal the validity of the expert's testimony later. In addition, when utilizing an expert witness, it is best to consult with him or her prior to conducting discovery. An expert witness will explain the best information to gain for the client and where it can be likely found.
In preparing an expert witness for direct examination, it is imperative to prepare the expert in all substantive issues and prepare them for how the questioning will work from each side. Explaining exactly what the attorney needs to prove for the client will allow the expert to know the main goal of the attorney and how each question can lead to that objective. In addition, it is best to acknowledge the negatives about the client as this makes an expert seem more credible and impartial, as well as lessens the blow that the negative impact would have if the opposing party announced it first. Asking the expert for his or her opinion, and then allowing plenty of room for elaboration will allow the expert to be most persuasive.
When it comes to cross-examining an expert witness, the most important thing is preparation. No lawyer wants to start asking questions that are more detrimental to a case than staying silent would have been. By being prepared, an attorney can meet the goal of getting more information that will help his or her client's own case. Another purpose of cross-examination is impeachment through one of the following areas: witness training and experience; limited database; theoretical rationale; choice of methods of treatment; bias; or actual dishonesty. In attempting to impeach an expert witness, one strategy is to start with the least threatening area that a witness may be more likely to concede, and then follow up with more severe avenues.
In some instances, judges may be more likely to trust lay testimony over expert testimony due to the length of time many lay witnesses will have been able to observe the child and parents. These help to establish the relationship between the parents and the child, and how well the child is cared for. Some common lay witnesses will include neighbors, friends, relatives, teachers, coaches, scout leaders, and babysitters. Teachers specifically will have substantial amount of information on abuse and neglect, so will be able to document the ongoing nature of the child's care. Teachers can be difficult to call as lay witnesses, however, because they may not want to be torn between the child's parents. Talking to these witnesses even if they do not testify will help to identify more information that can lead to other evidence and avenues for the client. These witnesses will not be allowed to speculate beyond what they have seen of the child, and are not given the same leeway in asserting opinions to the court.
• Martin v. Martin, 61 A.D.3d 1297, 878 N.Y.S.2d 475 (3d Dep't 2009): New York case where the father's petition to modify a custody order was denied because in considering the child's testimony, it seemed inaccurate and unreliable, as if the child had memorized a list of complains and was under pressure to make sure the court heard the entire list.
• Wolt v. Wolt, 2010 ND 26, 778 N.W.2d 786 (N.D. 2010): A North Dakota case where the court awarded custody to Mother, even though two of the three children strongly favored Father. Father had been abusive to Mother, involved the children in the divorce, undermined the mother's parenting, and told the children bad things about the mother. A party who willfully alienates a child could not be granted custody based on that alienation.
• Begins v. Begins, 168 Vt. 298, 721 A.2d 469 (1998): A Vermont case where the court would not reward Father's continual poisoning of the children against Mother with a grant of custody.
• Hanson v. Spolnik, 685 N.E.2d 71 (Ind. Ct. App. 1997): Father argued that Mother had engaged in a pattern of parental alienation with Child that was affecting Child's long-term emotional and psychological needs. A child psychologist determined that Mother's comments and allegations against Father were directed at alienating Child from Father and that Mother's behavior endangered Child's emotional and psychological development. The court agreed that Mother had engaged in a concerted effort to destroy Child's relationship with Father since the divorce. For this reason, the court awarded Father sole physical and legal custody of Child to Father. Also, Mother was denied visitation for a period of sixty days followed by only two hours of supervised visitation with Child every two weeks for three months.
• Ellis v. Ellis, 952 So.2d 982 (Miss. Ct. App. 2006): Daughter was determined to suffer from Parental Alienation Syndrome and the Mother was deemed the major cause of that alienation. Experts found an excessive dependency of the Mother to the Child, and that Child suffered depression and a dip in social skills due to this. The court also found that the alienation went beyond just Father, but also to Father's family, including Child's grandparents, aunts and uncles. The court found that this issue did not only concern custody, but Child's overall emotional health and that Mother's actions were beyond the realm of reasonable behavior and contrary to the best interest of Child. Custody was altered in favor of Father due to the alienation by the Mother.
• Hilkirk v. Johnson, 183 So.3d 731 (La. Ct. App. 2015): Here, the trial court found the level of parental alienation startling, even stating that it was appalled when the minor child sat next to the mental health expert to discuss the case and stated that she would only spend time with Father to prevent Mother from going to jail. The trial court ordered a custody change from Mother to Father and would not allow Mother to contact child for two months. The appeals court on hearing this case determined that while there was evidence of parental alienation, it was not enough to change custody. The appeals court focused heavily on the best interest of the child, and could not find in the record clear and convincing evidence that the advantages of the change in custody would substantially outweigh the harm likely to be caused to the child because of the change. For this reason, even though parental alienation existed in this case, it was not enough to establish that the best interest of the child would be met by being removed from the alienating parent.
• C.J.L v. M.W.B., 879 So.2d 1169 (Ala. Civ. App. 2003): Trial court awarded Father sole physical custody of three children due to testimony by a mental health professional that found Mother was alienating children from Father, even if she was possibly doing so unintentionally. The appeals court would not rely on the term parental alienation syndrome, but stated that Mother had attempted to alienate the children from their father, and more specifically, that Mother had repeatedly demonstrated that she was unable to promote Father's role in the children's lives. Because Father would promote the children's relationship with Mother, but Mother would not promote their relationship with Father, Father's award of custody was affirmed.
 Richard A. Warshak, 37 Fam. L.Q. 273, Family Law Quarterly (2003).
 Anita K. Lampel, Assessing for Alienation and Access in Child Custody Cases, 40 Fam. Ct. Rev. 232. (April 2002).
 Richard A. Warshak, Parental Alienation: Overview, Management, Intervention, and Practice Tips, 28 J. Am. Acad. Matrim. Law. 181 (2015).
 William Greary, False Allegations in Custody Cases: Questions, Observations, and Comments, Divorce Mag.
 Paul Stuckle, Fighting False Allegations, Fathers for Equal Rights. (2013).
 National Center for Justice and Reason, IF You Are Falsely Accused, NCRJ, (Last Viewed May 15, 2017).
 Handrahan v. Malenko, 12 A.3d 79, 80 (Me. 2011).
 Jacquelyn Conlon, § 13.3.6 Custody: CT CLE DIVORCE (2013).
 Ann M. Haralambie, Handing Child Custody, Abuse and Adoption Cases: Trial Techniques: Use of Experts and Treatises §22:1. Reasons for Using Experts. (Updated Dec. 2016).
 54 Fam. Ct. Rev. 51 (Jan 2016).
 Ann M. Haralambie, Trial Techniques: Use of Experts and Treatises §22:1. Reasons for Using Experts. (2016).
 Ann M. Haralambie, Trial Techniques: Use of Experts and Treatises §22:9. Using Experts in Discovery. (2016).
 Ann M. Haralambie, Trial Techniques: Use of Experts and Treatises §22:17. Direct Examination (2016).
 Ann M. Haralambie, Trial Techniques: Use of Experts and Treatises §22:18. Cross-Examination (2016).
 Ann M. Haralambie, Trial Techniques: Use of Experts and Treatises §21.11.Using Lay Witnesses (2016).


35 U.S.C. 161 Patents for plants.
Asexually propagated plants are those that are reproduced by means other than from seeds, such as by the rooting of cuttings, by layering, budding, grafting, inarching, etc. Plants capable of sexual reproduction are not excluded from consideration if they have also been asexually reproduced.
With reference to tuber propagated plants, for which a plant patent cannot be obtained, the term “tuber” is used in its narrow horticultural sense as meaning a short, thickened portion of an underground branch. Such plants covered by the term “tuber propagated” are the Irish potato and the Jerusalem artichoke. This exception is made because this group alone, among asexually reproduced plants, is propagated by the same part of the plant that is sold as food.
The term “plant” has been interpreted to mean “plant” in the ordinary and accepted sense and not in the strict scientific sense and thus excludes bacteria. In re Arzberger, 112 F. 2d 834, 46 USPQ 32 (CCPA 1940). The term “plant” thus does not include asexual propagating material, per se. Ex parte Hibberd, 227 USPQ 443, 447 (Bd. Pat. App. & Int. 1985).
35 U.S.C. 161 originated as an amendment to the pre-existing patent statute with the Plant Patent Act of 1930. As enacted, the “invents or discovers” requirement limited patent protection to plants “that were created as a result of plant breeding or other agricultural and horticultural efforts and that were created by the inventor.” In re Beineke, 690 F.3d 1344, 1352, 103 USPQ2d 1872, 1877 (Fed. Cir. 2012). The plant patent provisions were separated from the utility patent provisions in the Patent Act of 1952 to create 35 U.S.C. 161. Id. at 1348 n.2, 103 USPQ2d 1875 n.2. 35 U.S.C. 161 was amended in 1954 to extend protection to “newly found seedlings,” provided they were found in a cultivated state, but did not otherwise alter the scope of plant patent protection. Id. at 1352-53, 103 USPQ2d at 1878-79. In Beineke, the Federal Circuit held that two century-old oak trees found on the lawn of a home were ineligible for patent protection under 35 U.S.C. 161 because they were not created from inception by human activity and created by the inventor (i.e., the patent applicant) as required by the 1930 Act, nor were they “newly found seedlings” under the 1954 amendment. Id. at 1348, 1352, 103 USPQ2d at 1875, 1879.
Prior to 1930, two factors were thought to remove plants from patent protection. The first was the belief that plants, even those artificially bred, were products of nature for purposes of the patent law…. The second obstacle to patent protection for plants was the fact that plants were thought not amenable to the “written description” requirement of the patent law. See U.S.C. § 112.
In enacting the Plant Patent Act, Congress addressed both of these concerns. It explained at length its belief that the work of the plant breeder “in aid of nature” was patentable invention. S. Rep. No. 315, 71st Cong., 2d Sess., 6-8 (1930); H.R. Rep. No. 1129, 71st Cong., 2d Sess., 7-9 (1930). And it relaxed the written description requirement in favor of “a description … as complete as is reasonably possible.” 35 U.S.C. § 162.
Diamond v. Chakrabarty, 447 U.S. 303, 311-312 (1980).
An asexually reproduced plant may alternatively be protected under 35 U.S.C. 101, provided the written description requirement can be satisfied. See 35 U.S.C. 112. In J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’ l, Inc., the Supreme Court held that patentable subject matter under 35 U.S.C. 101 includes newly developed plants, even though plant protection is also available under the Plant Patent Act (35 U.S.C. 161-164) and the Plant Variety Protection Act (7 U.S.C. 2321 et. seq.). J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’ l, Inc., 534 U.S. 124, 143-46, 122 S.Ct. 593, 605-06, 60 USPQ2d 1865, 1874 (2001) (The scope of coverage of 35 U.S.C. 101 is not limited by the Plant Patent Act or the Plant Variety Protection Act; each statute has different requirements and protections). An application filed under 35 U.S.C. 101 may claim the same asexually reproduced plant that is claimed under 35 U.S.C. 161, as well as plant materials and processes involving plant materials. See MPEP § 2105.
The filing of a terminal disclaimer may be used in appropriate situations to overcome an obviousness-type double patenting rejection based on claims to the asexually reproduced plant and/or fruit and propagating material thereof in an application under 35 U.S.C. 101 and the claim to the same asexually reproduced plant in an application under 35 U.S.C. 161.
In the case of a plant patent, the grant shall include the right to exclude others from asexually reproducing the plant, and from using, offering for sale, or selling the plant so reproduced, or any of its parts, throughout the United States, or from importing the plant so reproduced, or any parts thereof, into the United States.
As provided in 35 U.S.C. 161, the rights associated with a plant patent include the rights associated with a utility patent, and the “right to exclude” has additional terms provided in 35 U.S.C. 163. A plant patent issuing from an application filed after June 7, 1995 has a term which expires 20 years after the filing date of the application, or any earlier filing date claimed under 35 U.S.C. 120, 121 or 365(c) . See MPEP § 2701. Plant patent applications will be published pursuant to 35 U.S.C. 122(b).
37 C.F.R. 1.161 Rules applicable.
The rules relating to applications for patent for other inventions or discoveries are also applicable to applications for patents for plants except as otherwise provided.
(3) Application data sheet (see § 1.76).
(6) The inventor's oath or declaration (§ 1.162).
An application for a plant patent consists of the same parts as other applications. For information pertaining to the inventor's oath or declaration, specification and claim, or drawings, see MPEP § 1604, 1605, or 1606, respectively.
37 C.F.R. 1.162 Applicant, oath or declaration.
The inventor named for a plant patent application must be the person who has invented or discovered and asexually reproduced the new and distinct variety of plant for which a patent is sought. The inventor's oath or declaration, in addition to the averments required by § 1.63or § 1.64, must state that the inventor has asexually reproduced the plant. Where the plant is a newly found plant, the inventor's oath or declaration must also state that it was found in a cultivated area.
37 C.F.R. 1.162 (pre-AIA). Applicant, oath or declaration.
The applicant for a plant patent must be the person who has invented or discovered and asexually reproduced the new and distinct variety of plant for which a patent is sought (or as provided in §§ 1.42, 1.43 and 1.47). The oath or declaration required of the applicant, in addition to the averments required by § 1.63, must state that he or she has asexually reproduced the plant. Where the plant is a newly found plant, the oath or declaration must also state that it was found in a cultivated area.
The inventor's oath or declaration, in addition to the averments required by 37 CFR 1.63 or 37 CFR 1.64, (or, for applications filed before September 16, 2012,pre-AIA 37 CFR 1.63) must state that the inventor has asexually reproduced the plant. Where the plant is a newly found plant, the inventor's oath or declaration must also state that it was found in a cultivated area.
A Plant Patent Application (35 U.S.C. 161) Declaration, Form PTO/AIA/09, may be used to submit a declaration in a plant application filed on or after September 16, 2012.
In an application for a plant patent, there can be joint inventors. See Ex parte Kluis, 70 USPQ 165 (Bd. App. 1945).
The application is objected to under 37 CFR 1.163(a) because the specification does not “particularly point out where and in what manner the variety of plant has been asexually reproduced.” Correction is required.
If the written description of a plant is deficient in certain respects (see, e.g., In re Greer, 484 F.2d 488, 179 USPQ 301 (CCPA 1973)), a clarification or additional description of the plant, or even a wholesale substitution of the original description so long as not totally inconsistent and unrelated to the original description and photograph of the plant may be submitted in reply to an Office action. Such submission will not constitute new matter under 35 U.S.C. 132. Jessel v. Newland,195 USPQ 678, 684 (Dep. Comm’r Pat. 1977).
The rules on Deposit of Biological Materials, 37 CFR 1.801-1.809, do not apply to plant patent applications in view of the reduced disclosure requirements of 35 U.S.C. 162, even where a deposit of a plant has been made in conjunction with a utility application (35 U.S.C. 101).
37 C.F.R. 1.165 Plant drawings.
(a) Plant patent drawings should be artistically and competently executed and must comply with the requirements of § 1.84. View numbers and reference characters need not be employed unless required by the examiner. The drawing must disclose all the distinctive characteristics of the plant capable of visual representation.
(b) The drawings may be in color. The drawing must be in color if color is a distinguishing characteristic of the new variety. Two copies of color drawings or photographs must be submitted.
If the drawings or photographs are in color, two color copies of each drawing or photograph are required. If the required copies of the drawings are not included, the application will be accorded a filing date, but correction will be required before the application is forwarded for examination.
37 C.F.R. 1.84 Standards for drawings.
(c) Identification of drawings. Identifying indicia should be provided, and if provided, should include the title of the invention, inventor’s name, and application number, or docket number (if any) if an application number has not been assigned to the application. If this information is provided, it must be placed on the front of each sheet within the top margin. Each drawing sheet submitted after the filing date of an application must be identified as either “Replacement Sheet” or “New Sheet” pursuant to § 1.121(d). If a marked-up copy of any amended drawing figure including annotations indicating the changes made is filed, such marked-up copy must be clearly labeled as “Annotated Sheet” pursuant to § 1.121(d)(1).
(e) Type of paper. Drawings submitted to the Office must be made on paper which is flexible, strong, white, smooth, non-shiny, and durable. All sheets must be reasonably free from cracks, creases, and folds. Only one side of the sheet may be used for the drawing. Each sheet must be reasonably free from erasures and must be free from alterations, overwritings, and interlineations. Photographs must be developed on paper meeting the sheet-size requirements of paragraph (f) of this section and the margin requirements of paragraph (g) of this section. See paragraph (b) of this section for other requirements for photographs.
(2) 21.6 cm. by 27.9 cm. (8 1/2 by 11 inches).
(g) Margins. The sheets must not contain frames around the sight (i.e., the usable surface), but should have scan target points (i.e.,cross-hairs) printed on two cater-corner margin corners. Each sheet must include a top margin of at least 2.5 cm. (1 inch), a left side margin of at least 2.5 cm. (1 inch), a right side margin of at least 1.5 cm. (5/8 inch), and a bottom margin of at least 1.0 cm. (3/8 inch), thereby leaving a sight no greater than 17.0 cm. by 26.2 cm. on 21.0 cm. by 29.7 cm. (DIN size A4) drawing sheets, and a sight no greater than 17.6 cm. by 24.4 cm. (6 15/16 by 9 5/8 inches) on 21.6 cm. by 27.9 cm. (8 1/2 by 11 inch) drawing sheets.
(i) Arrangement of views. One view must not be placed upon another or within the outline of another. All views on the same sheet should stand in the same direction and, if possible, stand so that they can be read with the sheet held in an upright position. If views wider than the width of the sheet are necessary for the clearest illustration of the invention, the sheet may be turned on its side so that the top of the sheet, with the appropriate top margin to be used as the heading space, is on the right-hand side. Words must appear in a horizontal, left-to-right fashion when the page is either upright or turned so that the top becomes the right side, except for graphs utilizing standard scientific convention to denote the axis of abscissas (of X) and the axis of ordinates (of Y).
(t) Numbering of sheets of drawings. The sheets of drawings should be numbered in consecutive Arabic numerals, starting with 1, within the sight as defined in paragraph (g) of this section. These numbers, if present, must be placed in the middle of the top of the sheet, but not in the margin. The numbers can be placed on the right-hand side if the drawing extends too close to the middle of the top edge of the usable surface. The drawing sheet numbering must be clear and larger than the numbers used as reference characters to avoid confusion. The number of each sheet should be shown by two Arabic numerals placed on either side of an oblique line, with the first being the sheet number and the second being the total number of sheets of drawings, with no other marking.
(1) The different views must be numbered in consecutive Arabic numerals, starting with 1, independent of the numbering of the sheets and, if possible, in the order in which they appear on the drawing sheet(s). Partial views intended to form one complete view, on one or several sheets, must be identified by the same number followed by a capital letter. View numbers must be preceded by the abbreviation “FIG.” Where only a single view is used in an application to illustrate the claimed invention, it must not be numbered and the abbreviation “FIG.” must not appear.
(2) Numbers and letters identifying the views must be simple and clear and must not be used in association with brackets, circles, or inverted commas. The view numbers must be larger than the numbers used for reference characters.
(x) Holes. No holes should be made by applicant in the drawing sheets.
Form Paragraphs 16.06, 16.07, and 16.11 may be used to object to the drawing disclosure.
The disclosure is objected to under 37 CFR 1.165(b) because applicant has not provided copies of the color drawing in duplicate. Correction is required.
The disclosure is objected to under 37 CFR 1.165(a) because Fig.  not artistically and/or competently executed.
The disclosure is objected to under 37 CFR 1.165(a) because the drawings are of an inadequate scale to show the distinguishing features of the plant.
Plant applications are subject to the same examination process as any other national application. As such, the statutory provisions with regard to patentable subject matter, utility, novelty, obviousness, disclosure, and claim specificity requirements apply (35 U.S.C. 101, 102, 103, and 112). The sole exception in terms of applicability of these statutory provisions is set forth in 35 U.S.C. 162.
The prior art considered by the examiner is developed by a search of appropriate subclasses of the United States patent classification system as well as patent and nonpatent literature data bases. Where appropriate, a report may be obtained from the Agricultural Research Service, Horticultural Research Branch, Department of Agriculture. See MPEP § 1609.
35 U.S.C. 164 Assistance of Department of Agriculture.
The President may by Executive order direct the Secretary of Agriculture, in accordance with the requests of the Director, for the purpose of carrying into effect the provisions of this title with respect to plants (1) to furnish available information of the Department of Agriculture, (2) to conduct through the appropriate bureau or division of the Department research upon special problems, or (3) to detail to the Director officers and employees of the Department.
Applications may be submitted by the Patent and Trademark Office to the Department of Agriculture for study and report.
Executive Order No. 5464, October 17, 1930. Facilitating the consideration of applications for plant patents.
I, Herbert Hoover, President of the United States of America, under the authority conferred upon me by act of May 23, 1930 (Public No. 245) [now 35 U.S.C. 164], entitled “An act to provide for plant patents,” and by virtue of all other powers vested in me relating thereto, do hereby direct the Secretary of Agriculture: (1) to furnish the Commissioner of Patents such available information of the Department of Agriculture, or (2) to conduct through the appropriate bureau or division of the department such research upon special problems, or (3) to detail to the Commissioner of Patents such officers and employees of the department, as the Commissioner may request for the purpose of carrying said act into effect.
Where the examiner considers it necessary to the examination of the plant patent application, a copy of the file and drawing of the application are forwarded to the National Program Leader for Horticultural Crops, Agricultural Research Service (ARS), U.S. Department of Agriculture, along with a request for a report as to whether the plant variety disclosed is new and distinct over known plant varieties. As the report is merely advisory to the Office, it is placed in the file but is not given a paper number. The copy of the report is customarily utilized by the examiner in the preparation of his or her action on the application.
The action on the application by the examiner will include all matters as provided for in other types of patent applications. See 37 CFR 1.161.
With reference to the examination of the claim, the language must be such that it is directed to the “new and distinct variety of plant.” This is important as under no circumstance should the claim be directed to a new variety of flower or fruit in contradistinction to the plant bearing the flower or the tree bearing the fruit. This is in spite of the fact that it is accepted and general botanical parlance to say “A variety of apple or a variety of blackberry” to mean a variety of apple tree or a variety of blackberry plant.
Where the application is otherwise allowable, a claim which recites, for example “A new variety of apple characterized by,” may be amended by the insertion of - tree - after “apple” by an examiner’s amendment.
By the same token, the title of the invention must relate to the entire plant and not to its flower or fruit, thus: Apple Tree, Rose Plant.
Care should also be exercised that the specification does not contain unwarranted advertising, for example, “the disclosed plant being grown in the XYZ Nurseries of Topeka, Kansas.” It follows, also, that in the drawings any showing in the background of a plant, as a sign carrying the name of an individual, nursery, etc., is objectionable and deletion thereof is required. Nor should the specification include laudatory expressions, such as, “The rose is prettier than any other rose.” Such expressions are wholly irrelevant. Where the fruit is described, statements in the specification as to the character and quality of products made from the fruit are not necessary and should be deleted.
The Office action may include so much of any report of the ARS as the examiner deems necessary, or may embody no part of it. In the event of an interview, the examiner, in his or her discretion, may show the entire report to the inventor or attorney.
Form Paragraph 16.12 may be used to reference portions of the ARS report.
The report of the ARS is not in the nature of a publication and matters raised therein within the personal knowledge of the specialists of the ARS are not sufficient basis for a rejection unless it is first ascertained by the examiner that the same can be supported by affidavits by said specialists (37 CFR 1.104(d)(2)). See Ex parte Rosenberg, 46 USPQ 393 (Bd. App. 1939).
Form Paragraphs 16.04 and 16.08, as appropriate, may be used to reject the claim.
The claim is rejected under 35 U.S.C. 102 as failing to patentably distinguish over .
The claim is rejected under 35 U.S.C. 112  because .
The preparation of a plant patent application for issue involves the same procedure as for other applications (37 CFR 1.161), with the exception that where there are color drawings, the better one of the two judged, for example, by its sharpness or cleanliness is selected to be printed in the patent.
The International Convention for the Protection of New Varieties of Plants (generally known by its French acronym as "UPOV Convention") was adopted on December 2, 1961, by a Diplomatic Conference held in Paris.
The UPOV Convention has been revised on November 10, 1972, on October 23, 1978, and on March 19, 1991, in order to reflect technological developments in plant breeding and experience acquired with the application of the UPOV Convention. As of December 5, 2012, 71 states and organizations were party to the UPOV Convention.
Most states adhere to either the 1978 text or the 1991 text. The United States adheres to the 1991 text, and has a reservation under Article 35(2) of the text (which allows plant patents rather than breeder’s rights certificates to be granted).
The 1961, 1978, and 1991 texts guarantee to plant breeders in each member state both national treatment and the right of priority in all other member states. In many states, new plant varieties are protected by breeders’ rights laws rather than patent laws. Accordingly, the Paris (Industrial Property) Convention cannot always be relied on to provide these and other rights.
Insofar as the patenting of asexually reproduced plants in the United States is concerned, both national treatment and the right of priority have been accorded to foreign plant breeders since enactment of the plant patent law in 1930 (now 35 U.S.C. 161-164). See MPEP § 1613 for the right of priority based upon an application for plant breeder’s rights.
Application of the UPOV Convention in the United States does not affect the examination of plant patent applications, except in one instance. It is now necessary as a condition for receiving a plant patent to register a variety denomination for that plant. Inclusion of the variety denomination in the patent comprises its registration. The registration process in general terms consists of inclusion of a proposed variety denomination in the plant patent application. The examiner must evaluate the proposed denomination in light of UPOV Convention, Article 13. Basically, this Article requires that the proposed variety denomination not be identical with or confusingly similar to other names utilized in the United States or other UPOV member countries for the same or a closely related species. In addition, the proposed denomination must not mislead the average consumer as to the characteristics, value, or identity of the patented plant. Ordinarily, the denomination proposed for registration in the United States must be the same as the denomination registered in another member state of UPOV.
Pursuant to 37 CFR 1.76(b)(3), the Latin name and the variety denomination for the plant claimed may be included in an application data sheet (ADS). The Office, pursuant to the UPOV Convention, has been asked to compile a database of the plants patented and the database must include the Latin name and the variety denomination of each patented plant. Having this information in an ADS will make the process of compiling this database more efficient.
Form Paragraph 16.05 may be used to object to the disclosure as lacking a common or market name or “denomination” of the plant.
The disclosure is objected to under 37 CFR 1.121(e) because no “variety denomination” of the instant plant has been set forth in the disclosure. 37 CFR 1.163(c)(4). Correction by adding such a name is required.
The disclosure is objected to under 37 CFR 1.121(e) because the Latin name of the genus and species of the instant plant has not been set forth in the disclosure. 37 CFR 1.163(c)(4). Correction by adding such a name is required.


text:
4:17-cv-02231-SBA - Antoine v. BAE Systems, Inc.
4:18-cv-05054-KAW - William Trambley v. Reliance GlobalCom Services, Inc.
4:18-cv-07795-KAW - Junkersfeld v. Per Diem Staffing Systems, Inc.
4:17-cv-06118-KAW - Benjamin v. Wiline Networks, Inc.
4:18-cv-07283-KAW - Hansink v. Hillstone Restaurant Group, Inc.
4:19-cv-00677-KAW - Board of Trustees for the Laborers Health and Welfare Trust Fund for Nortthern California et al v. Centerline Striping Company, Inc.
4:18-cv-04000-JSW - Buckley v. COWI North America, Inc.
3:18-cv-00631-VC - Ashtiani v. Home Depot U.S.A., Inc.
3:16-cv-04633-VC - Vaughn v. Coach, Inc.
4:17-cv-05938-YGR - Cellspin Soft, Inc. v. Canon U.S.A., Inc.
4:17-cv-05939-YGR - Cellspin Soft, Inc. v. GoPro, Inc.
4:19-cv-00798-KAW - FireNet Technologies, LLC v. Fortinet Inc.
4:19-cv-00881-KAW - Frenchman v. Bank of America, N.A.
3:18-cv-07205-LB - Foster v. Advantage Sales & Marketing, LLC.
4:17-cv-03614-KAW - Operating Engineers' Health and Welfare Trust Fund for Northern California et al v. Vortex Marine Construction, Inc.
COURT SCHEDULE: Parties do not need to reserve a hearing date however, parties must check the list of unavailable dates below. Please note that parties should notice hearings on motions in accordance with the local rules.
Criminal Law and Motion: 1st & 3rd Thursdays of the month at 1:30 p.m.
Civil Law and Motion: 1st & 3rd Thursdays of the month at 1:30 p.m.
Case Management Conference: Tuesdays at 1:30 p.m. Pretrial Conference: Wednesdays at 2:00 p.m. Settlement Conference: Please contact the courtroom deputy clerk at (510) 637-3525 for scheduling.
Criminal Duty Months: January 2019, March 2019, May 2019, July 2019, September 2019, November 2019. Calendars are called at 9:30 am daily.
All counsel are hereby given notice that such absence constitutes a Certificate of Unavailability pursuant to Civil L.R. 1-5(p). If urgency requires, counsel in any case assigned or referred to Judge Westmore, may request a hearing before the General Duty Judge, as provided in Civil L.R. 7-1(c).

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


1. When a treaty provision fairly admits of two constructions, one restricting, the other enlarging, the rights which may be claimed under it, the more liberal interpretation is to be preferred. P. 279 U. S. 52.
2. As the treatymaking power is independent of and superior to the legislative power of the states, the meaning of treaty provisions, liberally construed, is not restricted by any necessity of avoiding possible conflict with state legislation, and, when so ascertained, must prevail over inconsistent state enactments. P. 279 U. S. 52.
3. When the meaning of treaty provisions is uncertain, recourse may be had to the negotiations and diplomatic correspondence of the contracting parties relating to the subject matter, and to their own practical construction of it. P. 279 U. S. 52.
than are or shall be payable in each state, upon the same, when removed by a citizen or subject of such state, respectively,"
was intended to prohibit not merely taxes on removal, but also discriminatory taxes like the droit de detraction (applied only to alien heirs of a resident decedent and substantially equivalent, as to them, to the modern inheritance tax), and is violated by a state inheritance tax discriminating against nonresident alien heirs of a resident decedent and constituting a lien upon the property. Pp. 279 U. S. 52, 279 U. S. 57.
Certiorari, 277 U.S. 583, to a judgment of the Supreme Court of Iowa affirming a judgment imposing an inheritance tax.
"ARTICLE 7. The United States and his Danish Majesty mutually agree that no higher or other duties, charges, or taxes of any kind shall be levied in the territories or dominions of either party upon any personal property, money, or effects of their respective citizens or subjects on the removal of the same from their territories or dominions reciprocally, either upon the inheritance of such property, money, or effects or otherwise, than are or shall be payable in each state upon the same when removed by a citizen or subject of such state respectively."
The Supreme Court of Iowa, 205 N.W. 324, following its earlier decision, In re Estate of Pedersen, 198 Iowa, 166, upheld the statute as not in conflict with the treaty.
considered, or death duties, or excises, on the right to transfer and remove property, singly or collectively, we are of the opinion that the duty of interpretation does not arise, since in no event would any of the prohibitions be applicable to the case before us."
But, in the present case, the decedent was a citizen of Denmark, owning property within the state of Iowa, and Article 7, by its terms, is applicable to charges or taxes levied on the personal property or effects of such a citizen; hence, its protection may be invoked here if the discrimination complained of is one embraced within the terms of the treaty.
That there is a discrimination based on alienage is evident, since the tax is imposed only when the nonresident heirs are also aliens. But it is argued by respondent, as the court below held, that the present tax is not prohibited by the treaty, since it is one upon succession, In re Estate of Thompson, 196 Iowa 721, In re Meinert's Estate, 204 Iowa 355, and not on property or its removal, which, it is said, is alone forbidden, and that, in any case, since the only tax discrimination aimed at by Article 7 in cases of inheritance is that upon the power of disposal of the estate, and not the privilege of succession, the particular discrimination complained of is not forbidden, for the statutes of Iowa permit a citizen of Denmark to dispose of his estate to citizens and residents of Denmark on the same terms as a citizen of Iowa to like nonresident alien beneficiaries.
U.S. 123; Geofroy v. Riggs, 133 U. S. 258, 133 U. S. 271; In re Ross, 140 U. S. 453, 140 U. S. 475; Tucker v. Alexandroff, 183 U. S. 424. When a treaty provision fairly admits of two constructions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal interpretation is to be preferred. Asakura v. Seattle, 265 U. S. 332; Tucker v. Alexandroff, supra; Geofroy v. Riggs, supra. And as the treatymaking power is independent of and superior to the legislative power of the states, the meaning of treaty provisions so construed is not restricted by any necessity of avoiding possible conflict with state legislation, and, when so ascertained, must prevail over inconsistent state enactments. See Ware v. Hylton, 3 Dall. 199; Jordan v. Tashiro, supra; cf. Cheung Sum Shee v. Nagle, 268 U. S. 336. When their meaning is uncertain, recourse may be had to the negotiations and diplomatic correspondence of the contracting parties relating to the subject matter and to their own practical construction of it. Cf. In re Ross, supra, at 140 U. S. 467; United States v. Texas, 162 U. S. 1, 162 U. S. 23; Kinkead v. United States, 150 U. S. 486; Terrace v. Thompson, 263 U. S. 197, 263 U. S. 223.
The history of Article 7 and references to its provisions in diplomatic exchanges between the United States and Denmark leave little doubt that its purpose was both to relieve the citizens of each country from onerous taxes upon their property within the other and to enable them to dispose of such property, paying only such duties as are exacted of the inhabitants of the place of its situs, as suggested by this Court in Petersen v. Iowa, supra, p. 245 U. S. 174, and also to extend like protection to alien heirs of the noncitizen.
territories and the appointment of consular officers, but did not contain any provisions corresponding to Article 7. On January 14, 1826, certain citizens of the United States addressed to Henry Clay, then Secretary of State, a memorial complaining of certain taxes imposed by the Danish government with respect to property of citizens of the United States located in the Danish West Indies, known as "sixths" and "tenths," the former being one-sixth of the value of the property, payable to the crown and the latter a further one-tenth of the residue, payable to the town or county magistrate, as a prerequisite to removal of property from the Islands. Both taxes ere imposed on the property inherited by an alien heir. Danish Laws, Code of Christian V, book V, c. 2, §§ 76, 77, 78, 79. The memorial prayed that an article be inserted in the treaty then contemplated with Denmark, comparable to the similar provisions of existing treaties between Denmark and Great Britain and Denmark and France, forbidding the imposition of taxes of this character.
"When citizens or subjects of the one party die in the country of the other, their estates shall not be subject to any droit de de traction, but shall pass to their successors, free from all duty."
"The object which the government of the United States had in view in that stipulation, was to secure the right of their citizens to bring their money and movable property home from the Danish islands, free from charges or duties and especially from the onerous law, known in those islands under the denominations of sixths and tenths. This object was distinctly known to Mr. Pedersen throughout the whole of the negotiation, and was expressly communicated by me to him in writing."
"I have been authorized . . . to declare to you that measures have been taken accordingly by the Danish government to secure the due execution of the seventh Article of the Convention, conformably to the intent and meaning thereof as by you stated. . . ."
That the present discriminatory tax is the substantial equivalent of the droit de de traction is not open to doubt. That it was the purpose of the high contracting parties to prohibit discriminatory taxes of this nature clearly appears from the diplomatic correspondence preceding and subsequent to the execution of the treaty, although the "sixths and tenths" tax, with which the parties were immediately concerned, was a removal tax.
of the same . . . either upon the inheritance of such property, . . . or otherwise,"
the omission at that time of words more specifically describing inheritance taxes as now defined can hardly be deemed to evidence any intention not to include taxes theoretically levied upon the right to transmit or inherit, but which nevertheless were to be paid from the inheritance before it could be possessed or removed. Moreover, while it is true that the tax is levied whether the property is actually removed or not, it is nevertheless imposed only with respect to a class of persons who would normally find it necessary so to remove the property in order to enjoy it, and since payment of the tax is a prerequisite to removal, the tax is, in its practical operation, one on removal. In the light of the avowed purpose of the Treaty to forbid discriminatory taxes of this character, and its use of language historically deemed to embrace them, such effect should be given to its provisions.
The contention that the present discrimination is not one forbidden by the language of Article 7, since the decedent's power of disposal is the same as that of a citizen, leaves out of consideration both the nature of the tax contemplated by the contracting parties and the fact that the treaty provisions extend explicitly to the withdrawal of such property by the alien heir upon inheritance, and, as already pointed out, protect him in his right to receive his inheritance undiminished by a tax which is not imposed upon citizens of the other contracting party.
"Their Britannick and Danish Majesties mutually agree that no higher or other Duties shall be levied in either of Their Dominions . . . upon any personal property of Their respective Subjects on the removal of the same from the Dominions of Their said Majesties reciprocally (either upon the inheritance of such property, or otherwise) than are or shall be payable in each state upon the like property when removed by a Subject of such state respectively."
12 British and Foreign state Papers, 1824-1825 (1826) 49. Article 40 of the Treaty of Commerce and Navigation, concluded between France and Denmark August 23, 1742, provided that the citizens of each of the two countries reciprocally should be exempt in the other from the droit d'aubaine or other similar disability, under whatever name, and that their heirs should succeed to their property without impediment. 1 Coercq, Recueil des Traite § de la France (1864) 57.
The droit de de traction was derived from the droit d'aubaine, one of the many harsh feudal laws and customs directed against strangers and which, in its narrowest sense, was the right of the sovereign, as successor of the feudal lords, to appropriate all the property of a nonnaturalized alien dying, either testate or intestate, within the realm. 1 Calvo, Dictionnaire de Droit International (1885) 67, Aubaine; 1 Merlin, Repertoire de Jurisprudence (5th ed. 1827) 523, Aubaine; Halleck, International Law (1861) 155; 2 Ferriere, Oeuvres de Bacquet (1778) 8 et seq. This right was exercised to the exclusion of all heirs, whether they were citizens or aliens or resided within or without the realm, with the single exception of resident legitimate offspring, and continued to be exercised long after aliens had been accorded unrestricted power of disposition of goods inter vivos. Demangeat, Historie de la Condition Civile des E'Trangers en France (1844) 110, 125; Loisel, Institutes Contumiers, liv. 1, regle 50. The term has, however, sometimes been applied to all the varying disabilities of aliens, Fiore, Le Droit International Prive (1907) 14, and more often used to include not only the inability of the alien to transmit, but the complementary incapacity of an alien to inherit, even from a citizen, Merlin, supra, Aubaine.
But commercial expediency led at an early date to a mitigation of the rigors of the droit d'aubaine. This process took several forms, the exemption of alien merchants in certain trading centers, of certain classes of individuals (ex-soldiers, etc.) and, most prominently, treaties providing for its reciprocal abandonment or contraction. In these treaties, the droit de de traction was recognized as a tax of from five to twenty, usually ten, percent of the value, imposed on the right of an alien to acquire by inheritance (testate or intestate) the property of persons dying within the realm. Demangeat, supra at 219, 225; 2 Masse, Le Droit Commercial (1844) 14; 1 Calvo, supra, De traction; Fuzier-Herman, Repertoire General Alphabetique du Droit Francaise (1890) Aubaine, 6; Guyot, Repertoire de Jurisprudence (1785) De traction; Merlin, supra, De traction; Oppenheim, International Law (4th ed.1928) 560; Halleck, supra at 155; Wheaton, Elements of International Law (8th ed. 1866) 138. The droit d'aubaine and the droit de de traction were abolished in France by decrees of the Assembly in 1790 and 1791, but subsequently reappeared in the Civil Code, Arts. 726, 912, with provision for abandonment as to a nation according similar treatment to French nationals. They were again abolished, with certain protective provisions for French heirs, by the Law of Jury 14, 1819. See Dalloz, Repertoire Pratique (1825) Succession; Demangeat, supra at 239, et seq., and citations, supra.
"C'est un droit par leguel le souverain distrait a son profit une certaine parties de succession qu'il permet aux etrangers de venir receueiller dans ses etats."
4 Merlin, supra, 518, De traction; Guyot, supra, De traction. "Ce droit . . . consistait dans un prelevement opere par le gouverment . . . sur le produit net des successions transferes a l'etranger." Calvo, supra, De traction; see also Fuzier-Herman, Repertoire General du Droit Francaise (1890) Aubaine, 6.
A number of early treaties of the United States clearly recognize this essential characteristic of the droit de de traction, either by providing in terms for the abolition of both removal duties and the droit de de traction, cf. Treaties with: France of 1778, 2 R.S. 203, 206; Wurttemberg of 1844, 2 R.S. 809; Saxony of 1845, 2 R.S. 690; or by words of similar import, cf. Treaties with: France of 1853, 2 R.S. 249, 251; Switzerland of 1850, 2 R.S. 748, 749, 750; Honduras of 1864, 2 R.S. 426, 428; Great Britain of 1900, 31 Stat. 1939.
"The tax shall be and remain a legal charge against and a lien upon such estate, and any and all the property thereof from the death of the decedent owner until paid."
Code Iowa (1927) c. 351, § 7311. See also §§ 7309, 7363.


Interpleader by order of court upon affidavit of defendant.
Upon the affidavit of a defendant, before answer in an action upon contract or for the recovery of personal property, that some third party, without collusion with the defendant, has or makes a claim to the subject of the action, and that the defendant is ready to pay or dispose of the same as the court may direct, the court may make an order for the safekeeping, or for the payment, or deposit in court, or delivery of the subject of the action, to such person as it may direct, and an order requiring such third party to appear in a reasonable time and maintain or relinquish his or her claim against the defendant. If such third party, being served with a copy of the order by the sheriff or such other person as the court may direct, fails to appear, the court may declare such third party barred of all claim in respect to the subject of the action against the defendant therein. If such third party appears, he or she shall be allowed to make himself or herself the defendant in the action in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon compliance by the defendant with the order of the court for the payment, deposit, or delivery thereof.
Laws 2006, LB 1115, § 14.
Stakeholder should pay or offer to pay fund into court so that disposition thereof may be made effective. Burke Lumber & Coal Co. v. Anderson, 162 Neb. 551, 76 N.W.2d 630 (1956).
Where one owing debt claimed by several persons files application in district court making respective claimants parties, brings money into court, and prays for determination of ownership, proceeding is interpleader under statute. Citizens Nat. Bank of Wisner v. McNamara, 120 Neb. 252, 231 N.W. 781 (1930).
This section protects depository or escrow holder, who interpleads in good faith, from vexation and expense of litigation. Farming Corp. v. Bridgeport Bank, 113 Neb. 323, 202 N.W. 911 (1925).
Where not otherwise ordered, failure to bring money into court subjects defendant to interest. Elkhorn Valley Lodge No. 57, I.O.O.F. v. Hudson, 59 Neb. 672, 81 N.W. 859 (1900).
A defendant may interplead in a declaratory judgment proceeding. United Services Automobile Assn. v. Hills, 172 Neb. 128, 109 N.W.2d 174 (1961).
One who precipitated litigation cannot maintain interpleader. Strasser v. Commercial Nat. Bank, 157 Neb. 570, 60 N.W.2d 672 (1953).
A bill of interpleader is an equitable remedy whereby a disinterested stockholder in possession of a fund or other property claimed by each of rival claimants may require them to litigate the issue of ownership without embroiling him. Provident Savings & Loan Assn. v. Booth, 138 Neb. 424, 293 N.W. 293 (1940).
Remedy provided by this section is a substitute for the equity remedy, although somewhat broader. Hartford Life & Annuity Ins. Co. v. Cummings, 50 Neb. 236, 69 N.W. 782 (1897).
Bailee may not interplead bailor and third party. Schellenberg v. Fremont, E. & M. V. R. Co., 45 Neb. 487, 63 N.W. 859 (1895).
In an interpleader suit between two assignees of claim against county, party who first filed notice with county was entitled to fund. Greeley County v. First Nat. Bank of Cozad, 126 Neb. 872, 254 N.W. 502 (1934).
Purchaser may protect himself from double payment by interpleading real owner and vendor. Jaques v. Dawes, 3 Neb. Unof. 752, 92 N.W. 570 (1902).


Denied. Relator's self-defense claim is repetitive. La.C.Cr.P. art. 930.4(A); see State v. Roberts, 10-1091 (La. App. 4 Cir. 2/16/11), 57 So.3d 617, writ denied, 11-0511 (La. 9/30/11), 71 So.3d 280. In addition, relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


§ 240-4 Classes of districts.
§ 240-6 Lots divided by district boundary lines.
§ 240-10 Open space development.
§ 240-11.1 Highlands Area Land Use Ordinance.
§ 240-11.2 Highlands Act exemptions.
§ 240-13 Public utilities and public or institutional uses.
§ 240-16 Accessory buildings and structures.
§ 240-17 Existing platted lots.
§ 240-19 Dangerous conditions; incongruous building design.
§ 240-21 Visibility at intersections.
§ 240-23 Temporary permits and certificates of occupancy.
§ 240-25 Proximity of structures and construction activities to waterways.
§ 240-27 Conversion of existing structures.
§ 240-29 Inoperable motor vehicles.
§ 240-29.1 Provisions for off-street parking, pedestrian access, lighting and landscaping.
§ 240-29.3 Conservation easement appendix.
§ 240-30 Continuance of nonconforming uses.
§ 240-32 Cessation of operation.
§ 240-33 Completion of existing buildings.
§ 240-34 Alterations and restoration.
§ 240-35 Nonconformance due to reclassification.
§ 240-37 Residential zone districts.
§ 240-38 Nonresidential zone districts.
§ 240-42 Application for permit.
§ 240-46.3 General sign standards.
§ 240-47 Signs in residential districts.
§ 240-47.1 Number of signs in nonresidential districts.
§ 240-47.2 Permitted signs in nonresidential districts.
§ 240-48 Temporary signs in nonresidential districts.
§ 240-50.1 Requirements for all residential zones.
§ 240-51 R-1 Residence District.
§ 240-52 R-2 Residence District.
§ 240-53 R-3 Residence District.
§ 240-54 R-4 Residence District.
§ 240-55 R-5 Residence District.
§ 240-55.1 MF Multifamily Residential District.
§ 240-56 VB Village Business District.
§ 240-57 NC Neighborhood Commercial District.
§ 240-58 C-R Commercial Recreation District.
§ 240-59 VC Village Center Form-Based Code.
§ 240-60 IPR Industrial Professional Recreational District.
§ 240-61 F-P Family Theme Recreation Park District.
§ 240-61.1 OS Open Space District.
§ 240-61.2 GC Golf Course District.
§ 240-61.3 Residential schedule of space regulations.
§ 240-62 Conditional uses in Village Business, Neighborhood Commercial and Industrial Professional Recreation Zones.
§ 240-63 Conditional uses in Village Business and Neighborhood Commercial Zones.
§ 240-64 Conditional uses in Neighborhood Commercial and Industrial Professional Recreational Zones.
§ 240-65 Conditional uses in Village Business and Industrial Professional Recreational Zones.
§ 240-66 Conditional uses in Neighborhood Commercial Zone only.
§ 240-67 Conditional uses in Village Business Zone only.
§ 240-68 Conditional uses in Industrial Professional Recreational Zone only.
§ 240-69 Office of Zoning Officer created.
§ 240-71 Duties of Zoning Officer.
§ 240-74 Construction and occupancy permits in nonresidential zones.
§ 240-76 Violations and penalties.
§ 240-77 Antennas, equipment and/or towers.
§ 240-78 Conditional use standards for antennas, equipment and/or towers.
§ 240-79 Purpose and intent.
§ 240-80 VC Village Center design standards and procedures.
§ 240-81.1 Municipal Housing Liaison.
§ 240-82 Mandatory set-aside of units.
§ 240-83 Allocation of units.
§ 240-85 Determination of maximum rents and sale prices.
§ 240-86 Zoning for inclusionary developments.
§ 240-88 Management of very low-, low-, and moderate-income units.
§ 240-91 Elimination of unnecessary costs for inclusionary developments.
§ 240-92 Byram Township's fair share obligation.
§ 240-93 Title; purpose; scope.
§ 240-96 Establishment of Highlands Area districts.
§ 240-97 Highlands Area zone district regulations.
§ 240-98 Highlands Area resource regulations.
§ 240-99 Highlands Area general regulations.
§ 240-100 Application review procedures and requirements.
§ 240-101 Appeals; waivers; exceptions.
§ 240-102 Enforcement; violations and penalties.
Planning Board — See Ch. 45.
Keeping of animals — See Ch. 87.
Campgrounds — See Ch. 104.
Uniform construction codes — See Ch. 112.
Flood damage prevention — See Ch. 136.
Seasonal sales — See Ch. 195.
Subdivision and site plan review — See Ch. 215.
Fees — See Ch. A287.


Receive free daily summaries of new opinions from the Supreme Court of Pennsylvania.
BIG BEAVER FALLS AREA SCHOOL DISTRICT, Petitioner, v. Hope JACKSON, By and Through her mother and next friend, Delores NESMITH, and Delores Nesmith, individually, Respondents.
Submitted on Briefs July 10, 1992.
*270 John J. Petrush, for petitioner.
Eugene A. Lincoln, for respondents.
Before PALLADINO and PELLEGRINI, JJ., and NARICK, Senior Judge.
Big Beaver Falls Area School District (District) appeals the decision of a Special Education Appeals Review Panel of the Commonwealth of Pennsylvania (Appeals Panel) finding that student Hope Jackson's (Hope) individualized education program (IEP) was not appropriate under the Individuals with *271 Disabilities Education Act (IDEA) and state regulations, and ordering compensatory education.
The IDEA requires that for a state to receive federal assistance, it must provide a child with disabilities a "free appropriate public education" based on the unique needs of the student. 20 U.S.C. § 1412. The IDEA establishes minimum requirements for the education of children with disabilities. To implement those requirements, the Commonwealth, through the Department of Education, promulgated 11 Pa. Code § 14.1 et seq. Under the IDEA, as implemented by the state regulations, a school district must develop an IEP*272 tailored in accordance with certain procedures for each child with a disability. 22 Pa.Code § 14.32. See also 20 U.S.C. § 1412.
Hope is a fifteen-year old student at the District's high school. In 1988, Hope was evaluated by a Multi-Disciplinary Team and was identified as Socially and Emotionally Disturbed (SED). Prior to the 1990-91 school year, the District sent Hope to the Rochester School District to attend an SED class. That SED class was discontinued in June of 1990 and Hope was then assigned to a Learning Disabled (LD) class in the District's Middle School for the 1990-91 school year.
In May 1991, Hope's mother, Delores Nesmith (Nesmith) met with the District's Coordinator of Special Education to address the difficulties Hope was having in school, including school suspensions. During the year, Hope had been suspended several times for disruptive behavior and cutting classes resulting in a loss of approximately thirty school days. Nesmith expressed concern about the appropriateness of Hope's placement but requested that Hope continue in the LD class. In June 1991, Nesmith met with the District's high school vice principal and one of Hope's teachers for the 1991-92 school year. At that time, Nesmith signed the IEP the District had prepared for Hope for the 1991-92 school year. The District subsequently revised that IEP, changing the classification listed from LD to SED and the participation in a LD class from 71% to 50% of Hope's time, without having a meeting with an IEP team or allowing Nesmith to have input in the revision of the IEP.
In July 1991, Nesmith requested a hearing pursuant to 22 Pa.Code § 14.64(a) to address: (1) whether Hope's IEP was appropriate based on her SED needs; (2) whether the District violated procedural safeguards; for example, by not involving *273 Nesmith in the procedures to develop the IEP; (3) the District's lack of an Individual Transition Plan for Hope; (4) whether the school suspensions imposed on Hope for disciplinary reasons during the 1990-91 school year amounted to a placement change.
The hearing officer concluded that: (1) Hope's IEP was not appropriate because it does not address her emotional needs; (2) the District violated procedural safeguards because it has not completed a current multidisciplinary evaluation and teacher and parental involvement in the development of the IEP were lacking; and (3) the lack of an Individual Transition Plan did not violate Pennsylvania law because the regulations were not in effect at that time and did not violate the IDEA because transition is not required until Hope reached age sixteen. The hearing officer found that Hope had been suspended for more than 15 cumulative days without giving Nesmith notice and a right to a hearing which is a violation of 22 Pa.Code § 14.35. The hearing officer also denied Nesmith's request for attorney fees. Nesmith filed exceptions to the hearing officer's decision and the District answered the exceptions. The Secretary of the Department of Education appointed the Appeals Panel pursuant to 22 Pa.Code § 14.64(n).
Following the hearing officer's recommendations, the Appeals Panel found that the IEP was not appropriate because it was not individualized. That decision was based on the District's failure to consider Hope's present level of functioning, an individualized behavior modification plan, objective criteria or assessment procedures or timeliness to determine when goals were achieved. Moreover, the Appeals Panel found the annual goals stated in the IEP were written as general goals *274 for all the students in the class rather than developed individually for Hope, and related services and transition services were not provided. The Appeals Panel also held that the development of Hope's IEP violated procedural safeguards by not having a multidisciplinary evaluation, not including the parent or a current teacher on the IEP team, and failing to develop the IEP within the 20 days required.
To remedy the District's delay in providing a multidisciplinary evaluation and an appropriate IEP, and the District's imposition of school suspensions for more than 15 cumulative days without the proper procedures, the Appeals Panel ordered compensatory education for Hope. The Appeals Panel believed the remedy was needed because Hope was denied the appropriate public education to which she was entitled. However, the Appeals Panel denied attorney fees requested by Nesmith. The District then filed this appeal.
The District's main contentions are: (1) certain findings of fact made by the Appeals Panel were not supported by substantial evidence and the Appeals Panel findings were based on speculation; (2) the Appeals Panel erred in concluding that the IEP was not appropriate for Hope; and (3) the Appeals Panel erred in ordering compensatory education.
The District contends that the Appeals Panel's findings of fact that the IEP team did not include Nesmith or one of Hope's current teachers were not supported by substantial evidence. The IEP team meets to determine the educational placement of the student and to write the IEP pursuant to 22 Pa.Code § 14.32(b) and (c) which requires that both a parent *275 and a current teacher be on the IEP team, along with several other people.
The District argues that Nesmith did participate in the development of the IEP because she met with the District's Coordinator of Education in May 1991 and she met with a teacher and the vice principal in June 1991. First, when Nesmith met with the Coordinator of Education in May, 1991, she did so on her own initiative. This is not a meeting of an IEP "team" as ensured and required by 22 Pa.Code §§ 14.32 and 342.32. Second, when Nesmith signed the IEP presented to her in June, 1991, by a teacher and a vice principal, she was not given an opportunity to provide any input into its development and it was presented as a finished product. 22 Pa.Code §§ 14.32 and 342.32 require Nesmith be allowed to give input to develop the IEP as part of an IEP team meeting. Moreover, Nesmith did not participate in the development of the revised IEP, although 22 Pa.Code § 14.35(a) requires that the IEP team, including the parent, meet whenever an IEP is revised.
The District argues that because Ms. Barley, the teacher who met with Nesmith in June, 1991, was one of Hope's teachers for the 1991-92 school year, that a current teacher was a member of the IEP team. However, at the time the IEP was written, Ms. Barley had never taught Hope nor had she ever met Hope. She didn't even know that she would become one of Hope's teachers in the fall. Though she later became one of Hope's teachers does not make her a "current" teacher at the time the IEP was written. Therefore, the objected to findings of fact were supported by substantial evidence.
"It is possible that her lower score in the eighth grade may be due to the disintegration of her intellectual abilities because of emotional problems."
"Failing grades in school from grades five through eight may not have occurred had Hope been properly classified, received the appropriate remedial instruction, behavior modification program and counseling."
While those statements are speculative, they are not the basis of the Appeals Panel decision. The Appeals Panel's decision was based on many findings of fact relating to violations of procedural safeguards and deficiencies on the face of the IEP that were supported by substantial evidence and reversal is not warranted.
The District argues that Hope's IEP was appropriate because it enables Hope to derive some educational benefit and because Nesmith had suggested that Hope remain in the LD classes. An assessment of an IEP must focus on both procedural safeguards and substantive goals. Board of Education v. Rowley, 458 U.S. 176, 206-07, 102 S. Ct. 3034, 3051, 73 L. Ed. 2d 690 (1982). The procedural safeguards refer to how the IEP is developed and includes a multidisciplinary evaluation as the basis for the IEP, the required participants on the IEP team, the statements which the IEP must contain, and the time requirements, all of which are set forth in 22 *277 Pa.Code § 14.32, and also the impartial due process hearing provided in 22 Pa.Code § 14.64. The substantive goals of the IEP refer to whether or not the IEP provides an individualized program that confers meaningful benefit. Rowley.
The Appeals Panel found that Hope's IEP was not appropriate based on both procedural violations and substantive flaws. Several procedural safeguards were violated by the District, most notably that the District did not complete a multidisciplinary evaluation, Nesmith was not a participant on the IEP team and neither was a current teacher, and the IEP did not include the factors required in 22 Pa.Code § 14.32(f), such as objective criteria and assessment procedures. The IEP did not meet substantive requirements because, even if it conferred some educational benefit for Hope, as the District suggests, it was not individualized to meet her social and emotional needs. The Appeals Panel listed the factors the IEP lacked on its face such as Hope's present levels of functioning, individualized behavior modification plan, objective criteria, assessment procedures or timeliness to determine when goals were achieved, annual goals written for Hope rather than general ones written for all the students in the class, and related services to address Hope's social and emotional needs. The IEP was written in a general fashion for students attending LD classes and did not address Hope's individual disability.
Even if Hope was deriving some benefit from her placement and her mother requested that she remain in the LD class, her education and her IEP were not individualized. Hope was denied the free appropriate public education she was entitled to and the Appeals Panel made no error in concluding that the IEP was not appropriate.
The District also contends that in ordering compensatory education, the Appeals Panel exceeded its authority because 22 Pa.Code § 14.64 does not authorize compensatory education as a remedy. Compensatory education is a remedy *278 to compensate a student for a violation of statutory rights while he or she was entitled to those rights. Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir.1990), cert. denied, ___ U.S. ___, 111 S. Ct. 1317, 113 L. Ed. 2d 250 (1991). Compensatory education is an appropriate relief in the context of the IDEA because such an order "merely requires [the defendants] to belatedly pay expenses that [they] should have paid all along." Miener v. State of Missouri, 800 F.2d 749, 753 (8th Cir.1986) (citing School Committee of Burlington v. Department of Education, 471 U.S. 359, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985)). In Lester H., because the school district failed to provide the student an appropriate educational placement for thirty months, the Third Circuit Court of Appeals affirmed the district court's award of thirty months of compensatory education for the student to be provided after he turned 21.
The Pennsylvania regulations implement the provisions of the IDEA, including 20 U.S.C. § 1415(e)(2) which the Third Circuit in Lester H. relied on for the award of compensatory education. Pennsylvania's implementation of the IDEA makes the Appeals Panel the ultimate fact finder and the regulations therefore empower it to grant appropriate remedies such as compensatory education. See generally Pittsburgh Board of Education v. Commonwealth, Department of Education, 135 Pa.Commonwealth Ct. 56, 581 A.2d 681, 684 (1990) (ordered compensatory physical therapy).
The final issue raised was Nesmith's contention that she has a right to attorney's fees under the IDEA and that this court should grant those attorney's fees. The Appeals Panel refused to grant attorney fees to Nesmith because it held that it was not empowered to do so under the IDEA. Obviously, the District did not raise the issue of attorney's fees in it's petition for review. The party who chooses to appeal chooses the issues and whatever is not chosen is *279 waived. Appeal of the Municipality of Penn Hills, 519 Pa. 164, 546 A.2d 50, 54 (1988). Because the issue of attorney fees was waived, Nesmith could not raise the issue in this case. Furthermore, Nesmith was an aggrieved party because her request for attorney fees was denied by the Appeals Panel and she could have chosen to appeal that issue herself rather than raising it in response to the District's appeal. Pa.R.A.P. 501 and 511. Consequently, we will not address the issue.
Accordingly, we affirm the decision of the Appeals Panel.
AND NOW, this 1st day of September, 1992, the decision of the Special Education Appeals Review Panel of the Department of Education, Opinion No. 553, dated January 9, 1992, is affirmed.
 20 U.S.C. 1400 et seq., formerly the Education of the Handicapped Act.
 22 Pa.Code Chapters 14 & 342.
Special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under Section 1414(a)(5) of this title.
See also 22 Pa.Code § 14.1 ("appropriate program").
(1) a statement of the student's present levels of educational performance.
(2) a statement of annual goals and short-term learning outcomes which are responsive to the learning needs identified in the evaluation report.
(5) Appropriate objective criteria, assessment procedures and timeliness for determining, on at least an annual basis, whether the goals and learning objectives are being achieved.
Parents may request an impartial due process hearing concerning the identification, evaluation or educational placement of a ... young child who is eligible or who is thought to be eligible, if the parents disagree with the school district's identification, evaluation or placement of the student or young child.
 Under 22 Pa.Code § 14.35, disciplinary suspensions for more than 15 cumulative days in a school year is considered a "change in educational placement" which means that a multidisciplinary evaluation, notice to parents and a right to a hearing is required.
 Our review of a decision by a special appeals panel appointed by the Department of Education is limited to a determination of whether constitutional rights were violated, errors of law were committed, or the decision is supported by substantial evidence. 2 Pa.C.S. § 704. Conrad Weiser Area School District v. Department of Education, 145 Pa.Commonwealth Ct. 452, 603 A.2d 701 (1992).
(b) The IEP shall be developed from data and information that are presented at the IEP meeting. The IEP may not be prepared prior to the IEP team meeting.
 "Suspicion may never be substituted for the standard of proof required by our laws." Barnes v. Department of Justice, 70 Pa.Commonwealth Ct. 47, 452 A.2d 593 (1982). In Barnes, we reversed an administrative agency decision imposing a suspension on a police officer because, although there was no evidence of what was said between the parties, the agency believed that the officer must have made a provocative remark or the other person would not have struck him and it based the suspension on that belief. Barnes, 70 Pa.Commonwealth Ct. at 50, 452 A.2d at 595.
 20 U.S.C. § 1415(e)(4)(B) provides that "the court, in its discretion, may award reasonable attorney's fees as part of the costs to the parents or guardian of a child or youth with a disability who is the prevailing party."


You may be wondering if your employer is paying you the appropriate minimum wage. The Fair Labor Standards Act (FLSA) requires employers of covered employees who are not considered “exempt” to pay these employees a minimum wage of $7.25 per hour. Keep in mind, this is the Federal minimum wage and various states may have their own wage and hour laws. For instance, New Jersey’s minimum wage rate for 2019 is $8.85 per hour. The FLSA also lays out which category employees of employees are exempt from minimum wage requirements and/or overtime pay requirements.
Minimum wage for people under 20 years old, the law permits employers to pay these employees a minimum wage of $4.25 an hour for the first 90 calendar days of employment. Employers are not allowed, however, to replace these younger employees every 90 days to maintain this youth rate.
The FLSA also permits employers to pay what is called a “piece rate basis.” This typically occurs with tipped employees such as bartenders and servers (i.e. those who customarily receive more than $30 a month in tips). The employer may consider the tips part of the wages but must pay these employees at least $2.13 per hour if the employer claims a tip credit. While there are many other requirements, one additional one is that the employees must receive at least the equivalent of the minimum hourly wage rate ($7.25) and overtime for hours worked in excess of 40 hours per week.
Whether waiting time is hours worked under FLSA depends upon the circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait." See U.S. Department of Labor, Wage and Hour Division, Fact Sheet #22.
The United States Supreme Court has established that “no principle of law . . . precludes waiting time from also being working time,” and that an employee who is “engaged to wait” must be compensated, even though an employee “wait[ing] to be engaged” need not. Skidmore v. Swift & Co., 323 U.S. 134, 136-37 (1944). Whether waiting time is worked under the [FLSA] depends upon the particular circumstances,” such as the “nature of the service, and its relation to the waiting time.” 29 C.F.R. § 785.14 (citing Skidmore, 323 U.S. at 137). “[T]ime spent away from the employer’s premises under conditions that are so circumscribed that they restrict the employee from effectively using the time for personal pursuits. . . constitutes compensable hours of work.” 29 C.F.R. § 785.16(a). Courts have consistently held that “on-call” time can constitute work and is compensable under the FLSA where an employer restricts an employee’s ability to use time freely for the employee’s own benefit. Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944).
Employees must be paid for all time worked even if they are willing to work off-the-clock, meaning without compensation. “[A]n employee must be compensated for time she works outside of her scheduled shift, even if the employer did not ask that the employee work during that time, so long as the employer "knows or has reason to believe that [the employee] is continuing to work" and that work was "suffered or permitted" by the employer. Kosakow, 274 F.3d at 718 (citing 29 C.F.R. § 785.11); see also Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2d Cir. 2008) ("An employer who has knowledge that an employee is working, and who does not desire the work be done, has a duty to make every effort to prevent its performance. This duty arises even where the employer has not requested the overtime be performed or does not desire the employee to work, or where the employee fails to report his overtime hours.").
The FLSA does not limit either the number of hours in a day or the number of days in a week that an employer may require an employee to work, for individuals over 16 years old. Similarly, the FLSA does not limit the number of hours of overtime an employer may schedule, or an employee may work. However, the FLSA does require employers to pay covered/non-exempt employees not less than 1 ½ times their regular rate of pay (time and a half) for all hours worked in excess of 40 in a workweek. Employees who are exempt (ineligible) from receiving overtime primarily perform work duties which are classified as "executive," "professional," or "administrative. See FLSA Coverage.
If you believe your employer is not paying you a legal rate of pay for all work time earned, do not hesitate to contact the attorneys at Mashel Law, LLC. Mashel Law, located in Marlboro, New Jersey, is dedicated exclusively to protecting the rights of employees.


text:
On November 8, 2018, the Court of Justice of the European Union (hereinafter: CJEU) rendered judgment in the C&D Foods case (C-502/17). The case concerned the recovery of VAT on costs related to a proposed, but ultimately not realized, sale of shares. The CJEU deemed the purpose for which the shares were sold as being decisive for whether there is a VAT recovery right on professional advisor fees. C&D Foods intended to use the proceeds of the sale to repay a debt it had with its bank, which was also its shareholder. According to the CJEU, the share sale by C&D Foods was, in that case, an activity falling outside the scope of VAT. Consequently, the VAT charged on professional advisor fees was wholly non-deductible. This judgment may have a major impact on current Dutch practice concerning the sale of participations.
The Danish company C&D Foods is a member of the international Arovit group. It indirectly holds all the shares in Arovit Petfood and provides management and IT-related services to this participation. At a certain point in time, the shares of the Arovit group ended up in the hands of a bank, which had acquired these shares for EUR 1, because the then current owner could not meet its payment commitments to that bank. The bank intended to sell the shares in Arovit Petfood.
A law firm was engaged for the sale of the shares in Arovit Petfood, for which it drew up a draft agreement with an unnamed buyer. C&D Foods - the indirect shareholder of Arovit Petfood - ultimately abandoned the sale as no suitable buyer could be found. C&D Foods fully deducted the VAT on the professional advisor fees, but the Danish tax authorities refused to grant a VAT refund.
The CJEU confirmed that C&D Foods intended to use the proposed sale of the shares to repay outstanding debt at its bank, the new shareholder of the group. According to the CJEU, such a share sale is not directly related to the VAT-taxed services of C&D Foods, nor does it constitute an extension thereof. This means that the sale of the participation falls outside the scope of VAT and there is no VAT recovery right for the professional advisor fees.
Noteworthy in this case is that the bank that had acquired the Arovit group had always intended to sell Arovit Petfood, as this would ensure that it no longer acted as a creditor of the Arovit group. It was also the bank that had arranged the professional advisor services for the account of C&D Foods. The only reason for selling the participation was thus to use the proceeds of the sale to repay existing debt to the bank, i.e. the new shareholder. The direct link with the VAT-taxed activities of C&D Foods is absent in this specific context. The CJEU seems to suggest a direct link between the professional advisor services and the shareholder interests of the Arovit group.
In our view, the CJEU judgment must be regarded in the specific context of the facts. The judgment expressly leaves room for a full or partial VAT recovery of professional advisor fees in the event of a share sale, if the sale takes place in the context of a restructuring or rationalization of a group on its own initiative. The purpose of this should be to use the proceeds of the share sale to strengthen the VAT-taxable activities of the group. This was also confirmed in previous CJEU case law (the SKF case, C-29/08).
In the Dutch practice, professional advisor fees in respect of a proposed sale of shares are generally regarded as general overhead, if the participation is actively held by providing VAT-taxed services to that participation, or if the participation is included in a VAT group. The normal VAT recovery rules apply to these costs. If a holding company intends to sell a participation, then given the CJEU judgment in this case it is essential to substantiate the purpose of the sale. If it is purely to serve the business interests of the group, then we believe that there is a VAT recovery right in accordance with the normal VAT recovery right and the associated limitations on this right.
We would like to point out here that the repayment of debt may very well also serve the business interests of the group. After all, relieving the debt position of a group directly affects its credit rating, the possibility of concluding new contracts with suppliers, or the possibility of carrying on new business activities. In this respect, what is important for the group in a business sense, may also be important for its shareholders, and in this sense there is a common interest for all stakeholders in such cases. Further development of the law on this issue will have to show exactly where the line should be drawn.
In light of the CJEU judgment, it is essential to examine the purpose of selling a participation and how the proceeds from the sale are used. If your business is involved with the sale of participations (whether or not occasionally), then it is certainly advisable to consult your designated advisor to discuss the implications of this judgment.
The outcome of this judgment is of major importance for M&A practices, whether or not within groups, private equity enterprises, but also for operating businesses holding participations. Our specialists in the Indirect Tax Group and the M&A Group will be happy to be of assistance in this respect.

matches: CJEU CJEU CJEU CJEU CJEU CJEU CJEU