The Fourth Circuit has issued a brief unpublished opinion adopting the opinion of a federal district in West Virginia in State Auto. Mut. Ins. Co. v. Allegheny Med. Servs., No. 5:17-cv-02283 (S.D.W. Va. Apr. 17, 2018) that allegations by former patients that they had suffered emotional distress and psychological injuries as the result of sexual misconduct by a doctor failed to seek recovery for "bodily injury" or an "occurrence." In its per curiam opinion, the Fourth Circuit rejected the insured’s argument that there might later be evidence of physical injury arising from the patient’s mental anguish.
The U.S. Court of Appeals for the Tenth Circuit has ruled in MTI, Inc. v. Employers Ins. Co., No. 17-6206 (10th Cir. Jan. 25, 2019) that the reference to "that particular part of property" in Exclusions J(5) and J(6) is ambiguous. In overturning an Oklahoma District Court’s ruling that the insured was not entitled to coverage for the cost of restoring a tower that collapsed due to the corrosion of anchor bolts that the insured had installed, the Court of Appeals declared that "that particular part" was ambiguous because it could be read to refer solely to the direct object on which the insured was operating, as Wausau had argued or, alternatively, could apply only to those parts of the project directly impacted by the insured’s work. As a result, the court declared that only the anchor bolts were excluded and that the insured was entitled to coverage for the collapse of the tower itself.
A divided Pennsylvania Supreme Court has ruled that a "household vehicle exclusion" contained in an auto policy violated Section 1738 of the Motor Vehicle Financial Responsibility Law ("MVFRL"), 75 Pa.C.S. § 1738, because the exclusion impermissibly acts as a de facto waiver of stacked uninsured and underinsured motorist coverages. In Gallagher v. GEICO Ind. Co., J-18-2018 (Pa. Jan. 23, 2019), the majority declared that "there simply is no reason that insurers cannot comply with the Legislature’s explicit directive to offer stacked UM/UIM coverage on multiple insurance policies absent a knowing Section 1738 waiver and still be fairly compensated for coverages offered and purchased." Justices Saylor and Wecht dissented, asserting that the Majority’s analysis conflates the rejection of stacking which requires a written waiver) with the exclusion of certain acts or occurrences from the defined scope of coverage itself (which requires no waiver), whereas nothing in the text of the MVFRL prohibits household vehicle exclusions.
TEXAS Deepwater Horizon/Ultimate Net Loss/"Liability"
The Texas Supreme Court has ruled that a joint venture clause in an excess liability policy that made the policy’s limits proportional to the insured’s percentage interest in the company only applied to indemnity payments, whereas the policy’s full "ultimate net loss" limit applied to defense costs.. In Andarko Petroleum Corp. v. Houston Cas. Co., No. 16-1013 (Tex. Jan. 24, 2019), the Supreme Court declared that the insured could recover the entire $150 million limit for defense fees even though Andarko only had a 25% percent interest in the Deepwater Horizon well. In rejecting Lloyd’s argument that the joint venture clause in its policy capped coverage for fees and losses arising out of the Deepwater Horizon crisis at $37.5 million, the Supreme Court ruled that the reference to "liability" in the joint venture clause meant obligations that might be imposed on the insured by law to pay damages as distinguished from legal fees and other costs of defense.
In a dispute between the liability insurers of two subcontractors concerning the priority of the "additional insured" coverage each owed to the Milwaukee Municipal Sewerage District for claims arising out of the local sewer system, the Wisconsin Supreme Court has ruled that Greenwich erred in claiming that its "other insurance" clause made it excess to the Steadfast policy. In Steadfast Ins. Co. v. Greenwich Ins. Co., 2019 WI 6 (Wis. Jan. 25, 2019), the court ruled that the outcome of this dispute was not controlled by the policies’ "other insurance" clauses, since the policies insured risks involving the operations of different insureds at different times and were therefore not "concurrent." Having found that both policies were primary and owed a defense, the court ruled that the underlying costs of defense should be shared by the carriers in proportion to their respective indemnity limits. Further, the court declared that Steadfast, as the insured’s subrogee, was contractually entitled to recover its attorney’s fees for compelling Greenwich to provide coverage. Justices Ann Bradley and Frank issued a separate opinion, concurring in the majority’s finding that the "other insurance" clauses did not apply but disagreeing that defense costs should be apportioned based on policy limits. They argued that Greenwich was, in effect, being rewarded for failing to defend by now only having to pay a small fraction of the total costs and should have owed 50%. The justices also contended that the "American Rule" should have barred Steadfast from recovering its legal fees in the coverage suit. Justice Rebecca Bradley also dissented, arguing that the court should have given effect to the excess "other insurance" wording in the Greenwich policy, thereby relieving it of any duty to defend.
Munich Re reports that cat claims cost insurers $80 billion in 2018, less than 2017’s results but nearly double the average for the past several decades. 2018 proved to be the fourth costliest year for insurers since 1980.
Business Insurance reports that the Irwin Siegel Agency is now offering an "active assailant" insurance product to its customers.
American Family is replacing Miller Brewing as the naming sponsor of the Milwaukee Brewers ballpark.
Citing "extraordinary financial challenges" that it faced in the wake of recent severe wildfires for which it may bear responsibility, the Pacific Gas & Electric Company filed for Chapter 11 protection this week, asking a California bankruptcy court to allow to enter into a $5.5 billion "debtor in possession" financing of its liabilities.
Erie Insurance Exchange filed suit against Walmart in state court in Chicago this week, seeking a declaration that it does not owed coverage for a class action claim in which consumers complain that the "all natural" chips sold to them contained various synthetic or artificial ingredients.


(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.
(B) the President submits a nomination of such person to the Senate for appointment to such office.
(C) the Senate has approved the appointment of such person to such office.
(c)(1) Notwithstanding subsection (a)(1), the President (and only the President) may direct an officer who is nominated by the President for reappointment for an additional term to the same office in an Executive department without a break in service, to continue to serve in that office subject to the time limitations in section 3346, until such time as the Senate has acted to confirm or reject the nomination, notwithstanding adjournment sine die.
(2) For purposes of this section and sections 3346, 3347, 3348, 3349, 3349a, and 3349d, the expiration of a term of office is an inability to perform the functions and duties of such office.
A prior section 3345, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 425; Pub. L. 100–398, §7(a)(1), (2), Aug. 17, 1988, 102 Stat. 988, provided for details to office of head of Executive agency or military department, prior to repeal by Pub. L. 105–277, div. C, title I, §151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681–616, effective 30 days after Oct. 21, 1998.
2004—Subsec. (a). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office" in introductory provisions.
"(1) Effective date.—Subject to paragraph (2), this section [enacting this section and sections 3346 to 3349d of this title, repealing former sections 3345 to 3349 of this title, and enacting provisions set out as a note under section 3301 of this title] and the amendments made by this section shall take effect 30 days after the date of enactment of this section [Oct. 21, 1998].
"(A) In general.—This section shall apply to any office that becomes vacant after the effective date of this section.
"(B) Immediate application of time limitation.—Notwithstanding subparagraph (A), for any office vacant on the effective date of this section, the time limitations under section 3346 of title 5, United States Code (as amended by this section) shall apply to such office. Such time limitations shall apply as though such office first became vacant on the effective date of this section.
"(C) Certain nominations.—If the President submits to the Senate the nomination of any person after the effective date of this section for an office for which such person had been nominated before such date, the next nomination of such person after such date shall be considered a first nomination of such person to that office for purposes of sections 3345 through 3349 and section 3349d of title 5, United States Code (as amended by this section)."
(b) "order of succession" means a list of officials by position who shall act as and perform the functions and duties of the office of the head of the agency in the event that the office-holder has died, resigned, or otherwise become unable to perform the functions and duties of the office. "Order of succession" does not include any order, rule, memorandum, or other document delegating or partially delegating the authority of an office.
(b) Each agency described in subsection 3(a) of this order shall send any proposed updates or revisions to the agency's order of succession to the Counsel to the President for review and comment.
(b) Nothing in this order shall be construed to delegate the President's authority under the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq., to designate individuals to perform the functions and duties of a vacant office temporarily in an acting capacity.
Memorandum of President of the United States, Mar. 13, 2015, 80 F.R. 14289, revoked by Memorandum of President of the United States, §3, Jan. 13, 2017, 82 F.R. 7627.
Memorandum of President of the United States, Sept. 18, 2008, 73 F.R. 54487, revoked by Memorandum of President of the United States, §3, Mar. 13, 2015, 80 F.R. 14289.
Ex. Ord. No. 13542, May 13, 2010, 75 F.R. 27921, revoked by Ex. Ord. No. 13612, §3, May 21, 2012, 77 F.R. 31154.
Ex. Ord. No. 13241, Dec. 18, 2001, 66 F.R. 66258, as amended by Ex. Ord. No. 13261, §4(a), Mar. 19, 2002, 67 F.R. 13243; Ex. Ord. No. 13484, §§1, 2, Jan. 9, 2009, 74 F.R. 2285, revoked by Ex. Ord. No. 13542, §3, May 13, 2010, 75 F.R. 27922.
Ex. Ord. No. 11957, Jan. 13, 1977, 42 F.R. 3295, revoked by Ex. Ord. No. 13241, §4, Dec. 18, 2001, 66 F.R. 66259.
Ex. Ord. No. 13242, Dec. 18, 2001, 66 F.R. 66260, as amended by Ex. Ord. No. 13261, §4(b), Mar. 19, 2002, 67 F.R. 13243, revoked by Ex. Ord. No. 13613, §3, May 21, 2012, 77 F.R. 31155.
Ex. Ord. No. 11880, Oct. 2, 1975, 40 F.R. 46089, as amended by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 12998, Apr. 5, 1996, 61 F.R. 15873, revoked by Ex. Ord. No. 13242, §4, Dec. 18, 2001, 66 F.R. 66261.
Ex. Ord. No. 13394, Dec. 22, 2005, 70 F.R. 76665, revoked by Ex. Ord. No. 13533, §3, Mar. 1, 2010, 75 F.R. 10164.
Ex. Ord. No. 13000, Apr. 24, 1996, 61 F.R. 18483, revoked by Ex. Ord. No. 13394, §5, Dec. 22, 2005, 70 F.R. 76666.
Ex. Ord. No. 13250, Dec. 28, 2001, 67 F.R. 1597, as amended by Ex. Ord. No. 13261, §4(h), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13461, §4, Feb. 15, 2008, 73 F.R. 9438.
For order of succession within the Department of Homeland Security, see Ex. Ord. No. 13286, §88, Feb. 28, 2003, 68 F.R. 10632, as amended, set out as a note under section 111 of Title 6, Domestic Security.
Ex. Ord. No. 13243, Dec. 18, 2001, 66 F.R. 66262, as amended by Ex. Ord. No. 13261, §4(c), Mar. 19, 2002, 67 F.R. 13244.
Ex. Ord. No. 11274, Mar. 30, 1966, 31 F.R. 5243, as amended by Pub. L. 101–509, title V, §529 [title I, §112(c)], Nov. 5, 1990, 104 Stat. 1427, 1454, revoked by Ex. Ord. No. 13243, §4, Dec. 18, 2001, 66 F.R. 66263.
Ex. Ord. No. 13775, Feb. 9, 2017, 82 F.R. 10697, revoked by Ex. Ord. No. 13787, §3, Mar. 31, 2017, 82 F.R. 16723.
Ex. Ord. No. 13762, Jan. 13, 2017, 82 F.R. 7619, revoked by Ex. Ord. No. 13775, §3, Feb. 9, 2017, 82 F.R. 10697.
Ex. Ord. No. 13557, Nov. 4, 2010, 75 F.R. 68679, revoked by Ex. Ord. No. 13762, §3 Jan. 13, 2017, 82 F.R. 7619.
Ex. Ord. No. 13481, Dec. 9, 2008, 73 F.R. 75531, revoked by Ex. Ord. No. 13557, §3, Nov. 4, 2010, 75 F.R. 68679.
Memorandum of President of the United States, Dec. 8, 2006, 71 F.R. 74753, superseded by Ex. Ord. No. 13481, §3, Dec. 9, 2008, 73 F.R. 75531.
Ex. Ord. No. 13245, Dec. 18, 2001, 66 F.R. 66268, as amended by Ex. Ord. No. 13261, §4(e), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13755, §3, Dec. 23, 2016, 81 F.R. 96329.
Ex. Ord. No. 10513, Jan. 19, 1954, 19 F.R. 369, revoked by Ex. Ord. No. 13245, §4, Dec. 8, 2001, 66 F.R. 66269.
Ex. Ord. No. 13251, Dec. 28, 2001, 67 F.R. 1599, as amended by Ex. Ord. No. 13261, §4(i), Mar. 19, 2002, 67 F.R. 13244.
Ex. Ord. No. 12343, Jan. 27, 1982, 47 F.R. 4225, revoked by Ex. Ord. No. 13251, §4, Dec. 28, 2001, 67 F.R. 1599.
Ex. Ord. No. 13244, Dec. 18, 2001, 66 F.R. 66267, as amended by Ex. Ord. No. 13261, §4(d), Mar. 19, 2002, 67 F.R. 13244.
Ex. Ord. No. 11487, Oct. 6, 1969, 34 F.R. 15593, as amended by Pub. L. 101–509, title V, §529 [title I, §112(c)], Nov. 5, 1990, 104 Stat. 1427, 1454, revoked by Ex. Ord. No. 13244, §4, Dec. 18, 2001, 66 F.R. 66267.
Ex. Ord. No. 13246, Dec. 18, 2001, 66 F.R. 66270, as amended by Ex. Ord. No. 13261, §4(f), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13735, §4, Aug. 12, 2016, 81 F.R. 54709.
Ex. Ord. No. 11822, Dec. 10, 1974, 39 F.R. 43275, revoked by Ex. Ord. No. 13246, §4, Dec. 18, 2001, 66 F.R. 66270.
Ex. Ord. No. 13247, Dec. 18, 2001, 66 F.R. 66271, as amended by Ex. Ord. No. 13261, §4(g), Mar. 19, 2002, 67 F.R. 13244, revoked by Ex. Ord. No. 13736, §3(a), (b), Aug. 12, 2016, 81 F.R. 54711.
Memorandum of President of the United States, Feb. 12, 2003, 68 F.R. 10141, revoked by Ex. Ord. No. 13736, §3(d), Aug. 12, 2016, 81 F.R. 54711.
Ex. Ord. No. 13737, Aug. 12, 2016, 81 F.R. 54713, revoked by Ex. Ord. No. 13763, §3, Jan. 13, 2017, 82 F.R. 7622.
Ex. Ord. No. 13614, May 21, 2012, 77 F.R. 31157, revoked by Ex. Ord. No. 13737, §3, Aug. 12, 2016, 81 F.R. 54714.
Ex. Ord. No. 13261, Mar. 19, 2002, 67 F.R. 13243, as amended by Ex. Ord. No. 13344, July 7, 2004, 69 F.R. 41747, revoked by Ex. Ord. No. 13614, §3, May 21, 2012, 77 F.R. 31157, amended by Ex. Ord. No. 13736, §3(b), Aug. 12, 2016, 81 F.R. 54711.
Memorandum of President of the United States, May 21, 2012, 77 F.R. 31163, revoked by Memorandum of President of the United States, §3, Dec. 23, 2016, 81 F.R. 96331.
Ex. Ord. No. 13370, Jan. 13, 2005, 70 F.R. 3137, revoked by Ex. Ord. No. 13615, §3, May 21, 2012, 77 F.R. 31159.
Memorandum of President of the United States, May 21, 2012, 77 F.R. 31165, revoked by Memorandum of President of the United States, §3, Aug. 12, 2016, 81 F.R. 54715.
Memorandum of President of the United States, May 5, 2005, 70 F.R. 28773, superseded by Memorandum of President of the United States, May 21, 2012, 77 F.R. 31165.
Memorandum of President of the United States, Mar. 11, 2003, 68 F.R. 12281, superseded by Memorandum of President of the United States, May 5, 2005, 70 F.R. 28773.
Memorandum of President of the United States, Aug. 5, 2009, 74 F.R. 39871, revoked by Memorandum of President of the United States, §3, Jan. 13, 2017, 82 F.R. 7625.
Memorandum of President of the United States, Mar. 8, 2011, 76 F.R. 13499, revoked by Memorandum of President of the United States, §4, Sept. 20, 2013, 78 F.R. 59159.
Memorandum of President of the United States, Oct. 3, 2008, 73 F.R. 58869, revoked by Memorandum of President of the United States, §5, Mar. 8, 2011, 76 F.R. 13499.
Memorandum of President of the United States, Dec. 20, 2005, 70 F.R. 76375, superseded by Memorandum of President of the United States, §4, Oct. 3, 2008, 73 F.R. 58869.
Memorandum of President of the United States, Jan. 16, 2009, 74 F.R. 4101, revoked by Memorandum of President of the United States, §3, June 6, 2011, 76 F.R. 33613.
Memorandum of President of the United States, Dec. 9, 2008, 73 F.R. 75533, superseded by Memorandum of President of the United States, §3, Feb. 1, 2013, 78 F.R. 8953.
Memorandum of President of the United States, Oct. 17, 2014, 79 F.R. 63805, revoked by Memorandum of President of the United States, §3, Dec. 23, 2016, 81 F.R. 96337.
Memorandum of President of the United States, Oct. 17, 2008, 73 F.R. 62845, revoked by Memorandum of President of the United States, §3, Oct. 17, 2014, 79 F.R. 63805.
Memorandum of President of the United States, Apr. 17, 2006, 71 F.R. 20333, superseded by Memorandum of President of the United States, §3, Oct. 17, 2008, 73 F.R. 62845.


DECKEBACH, City Auditor of Cincinnati.
Argued April 18, 19, 1927.
Mr. George S. Hawke, of Cincinnati, Ohio, for plaintiff in error.
Mr. J. D. Ellis, of Cincinnati, Ohio, for defendant in error.
An ordinance, No. 76, 1918, of the city of Cincinnati, requires the licensing of pool and billiard rooms, and prohibits the issue of licenses to aliens. Plaintiff in error petitioned the Supreme Court of Ohio for a writ of mandamus commanding defendant in error, the auditor of Cincinnati, to grant him a license to conduct a billiard and pool room in that city. The petition alleged that plaintiff was a subject of the King of England, and that he had been refused a license solely because he was not a citizen. It drew in question the validity of the ordinance as violating article I of the treaty between Great Britain and the United States of July 3, 1815, 8 Stat. 228, and August 6, 1827, 8 Stat. 361 (1 Malloy, Treaties, 624, 645), and as denying the equal protection of the laws guaranteed by the Fourteenth Amendment.
Defendant answered, traversing the allegation of citizenship, and asserting that billiard and pool rooms in the city of Cincinnati are meeting places of idle and vicious persons; that they are frequented by lawbreakers and other undesirable persons, and contribute to juvenile delinquency; that numerous crimes and offenses have been committed in them and consequently they require strict police surveillance; that noncitizens as a class are less familiar with the laws and customs of this country than native-born and naturalized citizens; that the maintenance of billiard and pool rooms by them is a menace to society and to the public welfare; and that the ordinance is a reasonable police regulation passed in the interest of and for the benefit of the public.
On plaintiff's motion, the Supreme Court of Ohio gave judgment on the pleadings, dismissing the petition. 113 Ohio St. 347, 149 N. E. 194. In an earlier case. State ex rel. Balli v. Carrel, 99 Ohio St. 285, 124 N. E. 129, it had held that the ordinance in question did not deny any rights guaranteed by the federal Constitution. The case comes here on writ of error, Judicial Code, § 237, as amended (Comp. St. § 1214), the plaintiff renewing here the contentions made below.
At the outset defendant insists that plaintiff has not established that he is entitled to the benefit of the treaty since his allegation of citizenship is not admitted on the face of the pleadings. But the Supreme Court of Ohio has construed the pleadings as sufficient to draw in question the validity of the ordinance under the treaty. Hence we need not concern ourselves with those refinements of the local law of pleading which, it is said, enable defendant to justify his refusal to issue a license because of plaintiff's assertion of British citizenship, and at the same time deny that plaintiff has established citizenship entitling him to the protection of the treaty. See Forsyth v. Vehmeyer, 177 U. S. 177, 180, 20 S. Ct. 623, 44 L. Ed. 723; Allen v. Alleghany Co., 196 U. S. 458, 465, 466, 25 S. Ct. 311, 49 L. Ed. 551; Atlantic Coast Line R. Co. v. Mims, 242 U. S. 532, 535, 37 S. Ct. 188, 61 L. Ed. 476; Nevada-California-Oregon Ry. v. Burrus, 244 U. S. 103, 37 S. Ct. 576, 61 L. Ed. 1019; Lee v. Central of Georgia Ry., 252 U. S. 109, 40 S. Ct. 254, 64 L. Ed. 482.
Even if assumed, as argued, that the proprietor of a pool room may for some purposes be regarded as engaged in a trade, the word being used as synonymous with occupation or employment, he does not engage in commerce within the meaning of a treaty which merely extends to 'merchants and traders' 'protection and security for their commerce.' See Bobe v. Lloyds (C. C. A.) 10 F. (2d) 730, 734. It would be an extravagant application of the language quoted to say that it could be extended to include the owner of a place of amusement who does not necessarily buy, sell or exchange merchandise or otherwise participate in commerce.
Asakura v. Seattle, 265 U. S. 332, 44 S. Ct. 515, 68 L. Ed. 1041, relied on by plaintiff, does not support his contention. It was there held that the treaty with Japan of February 21, 1911, 37 Stat. 1504, was violated by a municipal ordinance prohibiting the granting of pawnbrokers' licenses to noncitizens. That treaty secured to the citizens of Japan the right to 'enter, travel and reside' in the United States and 'to carry on trade, wholesale and retail * * * and generally to do anything incident to or necessary for trade.' This language, which is plainly broader in some respects than that of the British treaty, was held to embrace within its protection a Japanese pawnbroker whose business, in contrast to that of plaintiff, necessarily involved the lending of money on the security of merchandise and the sale of merchandise when necessary to realize on the security.
The objections to the constitutionality of the ordinance are not persuasive. Although the Fourteenth Amendment has been held to prohibit plainly irrational discrimination against aliens (Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220; Truax v. Raich, 239 U. S. 33, 36 S. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283; In re Tiburcio Parrott (C. C.) 1 F. 481; In re Ah Chong (C. C.) 2 F. 733; Ho Ah Kow v. Nunan, 5 Sawy. 552, Fed. Cas. No. 6,546; Wong Wai v. Williamson (C. C.) 103 F. 1; Fraser v. McConway & Torley Co. (C. C.) 82 F. 257), it does not follow that alien race and allegiance may not bear in some instances such a relation to a legitimate object of legislation as to be made the basis of a permitted classification (Patsone v. Pennsylvania, 232 U. S. 138, 34 S. Ct. 281, 58 L. Ed. 539; Crane v. New York, 239 U. S. 195, 198, 36 S. Ct. 85, 60 L. Ed. 218; Terrace v. Thompson, 263 U. S. 197, 44 S. Ct. 15, 68 L. Ed. 255; Porterfield v. Webb, 263 U. S. 225, 44 S. Ct. 21, 68 L. Ed. 278; Webb v. O'Brien, 263 U. S. 313, 44 S. Ct. 112, 68 L. Ed. 318; Frick v. Webb, 263 U. S. 326, 44 S. Ct. 115, 68 L. Ed. 323; Cockrill v. California, 268 U. S. 258, 45 S. Ct. 490, 69 L. Ed. 944). Cf. McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248.
The admitted allegations of the answer set up the harmful and vicious tendencies of public billiard and pool rooms, of which this court took judicial notice in Murphy v. California, 225 U. S. 623, 32 S. Ct. 697, 56 L. Ed. 1229, 41 L. R. A. (N. S.) 153. The regulation or even prohibition of the business is not forbidden. Murphy v. California, supra. The present regulation presupposes that aliens in Cincinnati are not as well qualified as citizens to engage in this business. It is not necessary that we be satisfied that this premise is well founded in experience. We cannot say that the city council gave unreasonable weight to the view admitted by the pleadings that the associations, experiences and interests of members of the class disqualified the class as a whole from conducting a business of dangerous tendencies.
It is enough for present purposes that the ordinance, in the light of facts admitted or generally assumed, does not preclude the possibility of a rational basis for the legislative judgment and that we have no such knowledge of local conditions as would enable us to say that it is clearly wrong. Ft. Smith Light & Traction Co. v. Board of Improvement, 274 U. S. 387, 47 S. Ct. 595, 71 L. Ed. 1112, decided this day.
Some latitude must be allowed for the legislative appraisement of local conditions (Patsone v. Pennsylvania, supra, 144 (34 S. Ct. 281); Adams v. Milwaukee, 228 U. S. 572, 583, 33 S. Ct. 610, 57 L. Ed. 971), and for the legislative choice of methods for controlling an apprehended evil. It was competent for the city to make such a choice, not shown to be irrational, by excluding from the conduct of a dubious business an entire class rather than its objectionable members selected by more empirical methods. See Westfall v. United States, 274 U. S. 256, 47 S. Ct. 629, 71 L. Ed. 1036, decided this day.


1. A suit to recover land and funds in charge of a receiver of a court of Alaska created by laws of Congress is removable from a state to a federal court under Judicial Code § 28 and § 33, as amended August 23, 1916. P. 270 U. S. 441.
2. Where a suit was removable on the face of the bill, and the removal is not challenged, removal may be presumed to have been rightly taken although, due to omission by stipulation of the removal papers from the transcript, the ground on which removal was actually sought and allowed does not affirmatively appear. P. 270 U. S. 440.
3. Authority from a court to its receiver to appear, defend, and make counterclaim in a suit against him in another court is equivalent to leave to the plaintiff to bring the suit. P. 270 U. S. 441.
4. Acts induced by duress which operate only on the mind and fall short of physical compulsion are not void, but voidable only. P. 270 U. S. 444.
5. It is prerequisite to equitable relief cancelling a contract that the election to disaffirm be exercised promptly after cessation of the duress, the degree of promptness depending largely upon the effect of delay upon those whose rights are sought to be divested. P. 270 U. S. 444.
6. Unexplained delay of more than three years held fatal to suit to set aside a deed for duress where the defendants were left in ignorance of plaintiff's intention, and were necessarily prejudiced. P. 270 U. S. 445.
Appeal from a decree of the circuit court of appeals which reversed a decree of the district court favorable to the appellant in her suit to set aside a deed upon the ground of duress, and for recovery of rents, etc.
The appellant brought suit in the Superior Court of San Francisco County, California, for the surrender and cancellation of a deed of land and to recover money received by the appellee Noyes, a receiver acting under the appointment of an Alaska court and deposited by him with the appellee bank as rents derived from the land conveyed and as proceeds of the sale of part of it. The conveyance was made by appellant to receivers, predecessors in office of the appellee Noyes, appointed by the District Court for the District of Alaska. Relief was sought on the ground that the conveyance had been procured by duress. The cause was removed to the United States District Court for Northern California, and trial in that court resulted in a decree for the plaintiff. On appeal to the circuit court of appeals, the decree was reversed on the ground that the suit was barred by laches. 298 F. 689. The case comes to this Court on appeal. Judicial Code, § 241, before Act of February 13, 1925.
to the circuit court of appeals, because the parties had so stipulated under Rule 75 of the Equity Rules then in force (226 U.S.Appendix, p. 23) relating to the reduction and preparation of transcripts on appeals in suits in equity. It therefore does not affirmatively appear on what ground the removal to the district court was sought, allowed, and sustained. But an examination of the bill, which is set forth in the record, shows that the purpose of the suit was to recover land and funds then in charge of the receiver of a court in Alaska which was created by laws of Congress, and derived its powers and authority from those laws. Such a suit was removable under § 28 of the Judicial Code, as supplemented by the amendment of § 33 by the Act of August 23, 1916, c. 399, 39 Stat. 532. Matarazzo v. Hustis, 256 F. 882, 887-889; see Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593, 145 U. S. 603; Board of Commissioners v. Peirce, 90 F. 764. The alleged right to recover grew out of transactions between the plaintiff and the receivers within the Territory of Alaska with reference to land located in Alaska, in all of which the receivers were acting in virtue of authority conferred on them as officers of the Alaska court. Rouse v. Hornsby, 161 U. S. 588, 161 U. S. 590. As all this is apparent from the face of the bill, and as the removal is not challenged here, we think the presumption should be indulged that the removal was rightly taken, and that the district court had jurisdiction.
and present a counterclaim in it. This was the full equivalent of granting leave to bring the suit. That the order was made shortly after, instead of before, the suit was begun is not material. Jerome v. McCarter, 94 U. S. 734, 94 U. S. 737; Board of Commissioners v. Peirce, supra, 765-766. The plaintiff contended, and the district court held, that even if there had been no such leave, the suit could be maintained under the legislative permission given in § 66 of the Judicial Code; but we need not consider that question.
such, to accept the deed and administer the trusts created by it in connection with their duties as receivers.
The deed was executed by appellant and her husband on March 18, 1911, and was separately acknowledged by appellant, the certificate of acknowledgment stating that she executed it voluntarily, and that "she did not wish to retract it." The receivers took possession of the property in Alaska; they and later their successor, the appellee, Noyes, received the rents from it and the proceeds of sale of some of the land, and the fund now in dispute was derived from the administration of the trust.
Within a week after executing the conveyance, appellant departed from Alaska with her husband and returned to her residence at Los Angeles. More than three years later, on November 16, 1914, she instituted suit in the Alaska court against the receivers to set aside the conveyance of her separate property on the ground that it had been procured by duress. The case was not brought to trial, and after more than three years, on August 1, 1918, she consented to a nonsuit, having in the meantime, on July 24, 1918, commenced the present suit.
The district court below held that appellant's conveyance had been procured by duress. This conclusion was based on findings that, during the period of appellant's sojourn in Alaska in 1911, threats or "suggestions" were made to her (which it appears were made by two women depositors of the bank and by others who are unidentified) that her children would be kidnapped and her husband and herself subjected to personal violence; that, under the circumstances, these threats aroused in her a reasonable fear for the safety of her children, her husband and herself, and induced the execution of the deed to the receivers.
receivers or the great majority of the creditors of the bank were parties to or aware of the alleged duress. See Fairbanks v. Snow, 145 Mass. 153. Nor need we consider any of the numerous defenses interposed, except the acquiescence of appellant in her deed, and her delay in asserting her rights, which, in the circumstances, are decisive of the case.
Appellant's cause of action is necessarily founded upon the assertion of the rightful and effective exercise of the power to disaffirm her conveyance, which arose as soon as she was relieved from the compulsion of the alleged duress. Acts induced by duress such as is here relied on, which operates only on the mind and falls short of actual physical compulsion, are not void in law, but are voidable only at the election of him whose act was induced by it. Andrews v. Connolly, 145 F. 43, 46; Miller v. Davis, 52 Colo. 485, 494; Eberstein v. Willetts, 134 Ill. 101; Fairbanks v. Snow, supra; Miller v. Lumber Co., 98 Mich. 163; Oregon & P. R. Co. v. Forrest, 128 N.Y. 83. If there was duress here, appellant, as soon as she was relieved from its operation, was in a position either to disaffirm her conveyance or to allow it to stand undisturbed as the free and formal disposition of her rights. If her choice was to disaffirm, it might have been evidenced by suit timely brought or by any other action disclosing her purpose to those who would be affected.
In that situation, she was subject to the requirement of equity that an election to disaffirm and to recall the legal consequences of an act which has operated to alter legal rights by transferring them to others must be exercised promptly. Andrews v. Connolly and other cases cited supra, show how this requirement is applied in cases of duress. The principle has a like application where the right is founded on fraud. Upton, Assignee v. Tribilcock, 91 U. S. 45, 91 U. S. 54-55; Wheeler v. McNeil, 101 F. 685; Blank v. Aronson, 187 F. 241.
What promptness of action a court may reasonably exact in these circumstances must depend in large measure upon the effect of lapse of time without such disaffirmance upon those whose rights are sought to be divested. The appellant formed the intention of taking proceedings to set aside her conveyance immediately on her return to Los Angeles in April, 1911. This intention remained undisclosed for more than three years until she brought suit in the district court of Alaska in November, 1914. There is no evidence that the threats of violence were renewed after she left Alaska, or that they operated to prevent the prompt exercise of her election when she had returned to her home in Los Angeles. Her husband was brought to trial upon criminal charges growing out of his administration of the affairs of the bank, and criminal proceedings were concluded in December, 1912, or in 1913. During the period from April, 1911, until November, 1914, appellant, who was represented in Alaska by counsel and by an attorney in fact, was aware that the receivers, and later the appellee Noyes, none of whom was shown to have had any knowledge of the alleged duress, were engaged in the administration of the trust created by appellant's conveyance under an order of the court obtained on her petition. During that period, she made no effort to advise the court or the receivers of the alleged duress or of her intention to disaffirm her deed.
in fact and the proceeds being paid to the appellee in November, 1911. This unexplained delay of more than three years in exercising appellant's asserted right to disaffirm her conveyance, while the appellee and his predecessors were left in ignorance of her intention to assert it, and her affirmative action as well, in recognizing the validity of her deed and the authority of the appellee under it, establish conclusively her election to allow her conveyance to stand as the unrevoked and effective agency for the disposition of her rights.
The case is not one which requires us to consider the effect of mere delay in bringing suit to enforce a claim of which appellees had notice, with the consequent opportunity to protect themselves, in some measure, from the prejudice which would otherwise result from mere lapse of time, as in Simmons Creek Coal Co. v. Doran, 142 U. S. 417, and Southern Pacific Co. v. Bogart, 250 U. S. 483, relied upon by appellant. Nor have we to do with a situation where complainant's silence did not mislead or prejudice the defendants, as in Northern Pacific Railway Co. v. Boyd, 228 U. S. 482, also relied upon. Here, the very existence of the appellant's right depends upon the timely exercise of her election to disaffirm the deed. Delay in its exercise was necessarily prejudicial to her grantees, for they were entitled to and did rely and act upon the authority of her deed, and their defense, under the circumstances, was necessarily impeded and embarrassed by the lapse of time during the period in which they were left in ignorance of appellant's claim.
MR. JUSTICE BRANDEIS, with whom MR. JUSTICE SANFORD concurs, dissenting.
court to remand the case to the state court, or this Court should, in its discretion, order that copies of all papers in the district court relating to the removal be filed here, so that we may determine whether the lower courts have properly exercised jurisdiction. Compare order issued February 1, 1926, in Whitney v. California.
The determination of the jurisdiction of the courts below is one of the essential functions of this Court. Cochran v. Montgomery County, 199 U. S. 260, 199 U. S. 270.
"On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first of this Court and then of the court from which the record comes. This question the Court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it."
Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U. S. 379, 111 U. S. 382; Chicago, Burlington & Quincy Ry. Co. v. Willard, 220 U. S. 413, 220 U. S. 419; Baltimore & Ohio R. Co. v. City of Parkersburg, 268 U. S. 35. The record must show affirmatively "the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively, from its averments." Brown v. Keene, 8 Pet. 112, 33 U. S. 115; Hanford v. Davies, 163 U. S. 273, 163 U. S. 279. If the jurisdictional facts appear affirmatively somewhere in the record, the case need not be dismissed merely because the pleadings fail to show them. Robertson v. Cease, 97 U. S. 646, 97 U. S. 648; Realty Holding Co. v. Donaldson, 268 U. S. 398, 268 U. S. 400. Amendment of the pleadings to conform to the facts shown by the record may be allowed either in the lower courts or in this Court. Norton v. Larney, 266 U. S. 511, 266 U. S. 516. The record before this Court, which consists of 742 printed pages and several unprinted documents, includes everything which was before the circuit court of appeals, but not the whole record before the district court.
What parts were omitted does not appear. The essential jurisdictional facts are not shown in the pleadings or elsewhere in the record.
The record in this Court shows a bill of complaint to have a conveyance of real estate in Alaska annulled on the ground of duress and to have paid to the plaintiff moneys alleged to have been deposited in the Wells Fargo Nevada National Bank of San Francisco by one Noyes, claiming to act as receiver of a Nevada corporation. These funds are alleged to be the proceeds of a part of the real estate. The complaint is entitled "Superior Court of the California." The record shows next an answer filed in the Federal Court for the Northern District of the state. All subsequent proceedings prior to the appeal were had in that federal court. From these facts, it may merely be surmised that the suit was begun in the state court and before answer removed to the federal court. But the record does not contain the petition for removal, nor any of the other papers ordinarily incident thereto. There is no reference to a removal in any order or decree, in any opinion, in the evidence, nor in any other paper or clerk's entry. The complaint did not allege the citizenship of the plaintiff. An amendment to the complaint, filed in the federal court two years later, states that the plaintiff has at all times been a citizen of California. The defendants named are the Wells Fargo Bank and one Noyes, the latter being joined both individually and as receiver appointed "not lawfully" by an Alaska court for a Nevada corporation. No allegation discloses the citizenship of Noyes. It does not appear anywhere in the record whether an ancillary receiver of the Nevada corporation was ever appointed in California.
"It is equally fatal to the supposed right of removal that the record presents only a fragment of a cause, unintelligible except by reference to other matters not sent up from the state court and through explanations of counsel."
"There are no presumptions in favor of the jurisdiction of the courts of the United States."
Trust Co. v. Kanawha & Ohio Ry. Co., 39 F. 337; compare Greene v. Star Cash & Package Co., 99 F. 656, and the ancillary character of the suit furnishes no ground for removal. Gilmore v. Herrick, 93 F. 525. Compare Byers v. McAuley, 149 U. S. 608, 149 U. S. 618-620; Shinney v. North American Savings & Loan Bldg. Co., 97 F. 9. Jurisdiction could not be sustained on the ground that the case is one "arising under the . . . laws of the United States," because the mere fact that the defendant Noyes is the reputed receiver of a state corporation appointed by a federal court is not a ground for removal. [Footnote 7] Gableman v. Peoria, Decatur & Evansville Ry. Co., 179 U. S. 335. The record shows no other way in which the case arises under the laws of the United States. There is no actual controversy as to any federal matter. Compare Niles Bement Pond Co. v. Iron Moulders' Union Local No. 68, 254 U. S. 77, 254 U. S. 82.
Compare Wilson v. Oswego Township, 151 U. S. 56; Hanrick v. Hanrick, 153 U. S. 192; Chicago, Rock Island & Pacific Ry. Co. v. Martin, 178 U. S. 245, 178 U. S. 248; Gableman v. Peoria, Decatur & Evansville Ry. Co., 179 U. S. 335, 179 U. S. 337; Independent Steamboat Co. v. City of New York, 115 U. S. 248; Marrs v. Felton, 102 F. 775, 779; Yarnell v. Felton, 104 F. 161, 162; Scott v. Choctaw, O. & G. R. Co., 112 F. 180; Miller v. Le Mars Nat. Bank, 116 F. 551, 553; Heffelfinger v. Choctaw, O. & G. R. Co., 140 F. 75; Consolidated Independent School Dist. v. Cross, 7 F.2d 491.
Compare Bacon v. Rives, 106 U. S. 99; Salem Trust Co. v. Manufacturers' Finance Co., 264 U. S. 182, 264 U. S. 189; Turk v. Illinois Central R. Co., 218 F. 315.
Compare Woolridge v. McKenna, 8 F. 650, 677, 678; Mayer v. Denver, T. & Ft.W. R. Co., 41 F. 723; Gates Iron Works v. Pepper & Co., 98 F. 449; Yarnell v. Felton, 104 F. 161, 163. But see Canal & Claiborne Streets R. Co. v. Hart, 114 U. S. 654, 114 U. S. 660.
Compare Noble v. Massachusetts Ben. Assn., 48 F. 337.
Compare People's Bank v. Calhoun, 102 U. S. 256; Manning v. Amy, 140 U. S. 137; First Nat. Bank of Parkersburg v. Prager, 91 F. 689.
It is true that, although no party can by his conduct prevent dismissal by this Court when the absence of jurisdiction is discovered, Parker v. Ormsby, 141 U. S. 81, mere irregularity in the removal may be waived where the suit might originally have been brought in the federal court, Baggs v. Martin, 179 U. S. 206.
Following the decision of this Court in Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593, which upheld the right of removal from a state court of a suit against a receiver of a federal corporation appointed by a federal court, some lower courts, neglectful of the qualification implicit in the fact of federal incorporation, permitted removal generally in suits against receivers appointed by federal courts. Central Trust Co. v. East Tennessee v. & G. Ry. Co., 59 F. 523, 528; Jewett v. Whitcomb, 69 F. 417; Landers v. Felton, 73 F. 311; Keihl v. City of South Bend, 76 F. 921; Lund v. Chicago, R.I. & P. Ry. Co., 78 F. 385 (involving, however, a federal corporation); Board of Commissioners v. Peirce, 90 F. 764; Pitkin v. Cowen, 91 F. 599; Gilmore v. Herrick, 93 F. 525; Winters v. Drake, 102 F. 545, 550; Pendleton v. Lutz, 78 Miss. 322, 328. Other lower courts, recognizing that limitation and also the distinction with respect to receivers of national banks, Grant v. Spokane Nat. Bank, 47 F. 673, refused to permit removal in suits against receivers appointed only in exercise of the general equity jurisdiction of federal courts, confident that this Court would upon occasion uphold the limitation, Shearing v. Trumbull, 75 F. 33; Marrs v. Felton, 102 F. 775; Chesapeake, Ohio & S.W. R. Co.'s Receivers v. Smith, 101 Ky. 707. This Court, after holding in Bausman v. Dixon, 173 U. S. 113, 173 U. S. 114, that "the mere order of the Circuit Court appointing a receiver did not create a federal question," held in Gableman v. Peoria, Decatur & Evansville Ry. Co., 179 U. S. 335, that no removal could be allowed solely on the ground of the receiver having secured his appointment from a federal court. That case and the limitations it established have since been consistently recognized and followed. Pepper v. Rogers, 128 F. 987; New York v. Bleecker St. & F.F. R. Co., 178 F. 156; Wrightsville Hardware Co. v. Woodenware Mfg. Co., 180 F. 586; Dale v. Smith, 182 F. 360; American Brake & Shoe Foundry Co. v. Pere Marquette R. Co., 263 F. 237; State v. Frost, 113 Wis. 623, 647. The principle of the decision, as there stated by the Court, 179 U.S. 179 U. S. 338, gives effect to the avowed legislative policy underlying the enactment of the Act of March 3, 1887, c. 373, 24 Stat. 552, as amended and reenacted in § 66, Judicial Code.


1. Entitlement to service connection for a back disability with nerve damage.
2. Entitlement to service connection for depression with alcohol dependence, claimed as secondary to the back disability.
The Veteran served on active duty in the Marine Corps from September 9, 1976, to November 22, 1976.
These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.
Jurisdiction was subsequently transferred to the RO in St. Petersburg, Florida.
The Veteran testified before the undersigned during a July 2017 travel Board hearing. A copy of the transcript is associated with the record.
During the hearing, the undersigned advanced this appeal on the Board’s docket pursuant to 38 U.S.C.A. § 7107 (a) (2) (West 2014) and 38 C.F.R. § 20.900 (c) (2017).
When this case was previously before the Board in September 2017, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action.
This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant’s case should take into consideration the existence of these electronic records.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
The Board is of the opinion that additional development is required before the Veteran’s claims on appeal are decided.
The Veteran contends, and testified before the undersigned, that service connection is warranted for his back disability as it was aggravated by service. That is, the Veteran acknowledged that he was in a motor vehicle accident (MVA) approximately eight weeks prior to military service. Moreover, the Veteran has indicated that his claimed depression with alcohol abuse is secondary to his medical discharge from service due to his back disability.
In the September 2017 remand, the Board found that the Veteran should be afforded an examination to address the nature and etiology of his claimed back disability, to include whether a back disability clearly and unmistakably pre-existed the Veteran’s active service and clearly and unmistakably underwent no permanent increase in severity as a result of active duty. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.).
In response to the remand, the Veteran was scheduled for examinations in October 2017; however, he failed to report for his scheduled examinations.
In correspondence received from the Veteran’s representative in November 2017, it was requested that VA order a new VA examination as the Veteran missed his examination through no fault of his own as he was homeless, unable to get transportation to the examination location, and lost the phone number to call and reschedule.
Under 38 C.F.R. § 3.326 (a) (2017), individuals for whom examinations have been authorized and scheduled are required to report for such examinations, and when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without “good cause,” fails to report for such examination scheduled in conjunction with a claim for increase, the claim shall be denied.
In this case, given the November 2017 statement, the Board finds that the Veteran has provided “good cause” for not attending the scheduled examinations. Thus, on remand the Veteran is to be afforded another opportunity to report for a VA examination.
The Veteran is reminded, however, that the “duty to assist is not always a one-way street,” and he is obliged to cooperate in the development of the pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Should the Veteran, without good cause, fail to report for an examination scheduled in conjunction with this matter, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655 (a), (b) (2017).
1. The Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine if his back disability is related to his service. The electronic claims file must be provided to and reviewed by the examiner. Any indicated studies should be performed.
a.) diagnose any back disability the Veteran has had at any point during the appeal period.
b.) opine as to whether there is a 50 percent or better probability that the Veteran’s back disability was present during active service.
c.) if the examiner is of the opinion that a back disability was present during service, the examiner should provide an opinion as to whether the back disability clearly and unmistakably existed prior to service and clearly and unmistakably underwent no permanent increase in severity as a result of active duty.
d.) if the examiner is of the opinion that a back disability was not present during service, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the back disability is etiologically related to the Veteran’s active service.
The examiner is asked to address the July 2017 opinion from Dr. B.K.
A complete rationale for all opinions expressed must be provided.
2. If, and only if, it is determined that the Veteran’s back disability is related to his military service or was present during active service and clearly and unmistakably underwent a permanent increase in severity as a result of active duty, afford the Veteran a VA examination by an examiner with appropriate expertise to address the etiology of any acquired psychiatric disorder diagnosed during the pendency of this appeal. The electronic claims file must be provided to and reviewed by the examiner. Any indicated studies should be performed.
a.) diagnose any acquired psychiatric disorder the Veteran has had at any point during the appeal period.
b.) opine as to whether there is a 50 percent or better probability that the acquired psychiatric disorder is etiologically related to the Veteran’s active service.
c.) if any acquired psychiatric disorder is not related to service, the examiner is asked to provide an opinion as to whether there is a 50 percent or better probability that such disorder was caused by or aggravated (i.e., permanently worsened) beyond the natural progress by the Veteran’s back disability.
3. Upon completion of the examination(s) ordered above, review the examination reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board.
4. Thereafter, undertake any other development action that is deemed warranted and readjudicate the Veteran’s claims on appeal, with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this remand. If the decision with respect to the claims remains adverse to the Veteran, he should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).


As part of its mission to create and transmit knowledge through research, education and patient care, Washington University strives to maintain a diverse and vibrant academic community that welcomes foreign researchers and encourages international collaborations for the general advancement of human knowledge. In its Policy on Open Research And Free Dissemination of Ideas and Information, the University affirmed its belief that this mission is best served by fostering a culture of academic freedom that promotes the free exchange of ideas and encourages the broadest possible dissemination of knowledge and information through a wide array of research, teaching and clinical activities both within the United States and abroad.
The university also recognizes that the United States government has a legitimate national security interest in limiting the proliferation of certain defense-related technologies and the dissemination of technical data relating to those technologies. The regulations enacted by the federal government in furtherance of these interests include the Export Administration Regulations (“EAR”), 22 CFR § 120-130, the International Traffic in Arms Regulations (“ITAR”), 15 CFR § 730-774, and the various embargo and sanction regimes administered by the Treasury Department’s Office of Foreign Assets Control (“OFAC”) (collectively, the “Export Control Laws”). Of particular importance in the university setting, the Export Control Laws apply not only to the physical export of technology overseas, but also to the deemed export of controlled technical information to foreign nationals within the United States.
The university recognizes the importance of maintaining an effective and comprehensive export compliance program that can readily adapt to the changing demands of an evolving regulatory environment. The purpose of this Export Control Policy And Compliance Statement is to affirm the University’s commitment to compliance with the Export Control Laws; to promote faculty and staff awareness of the Export Control Laws as they relate to University activities; to provide general guidance on the University’s obligations under the Export Control Laws; and to identify the resources available to assist faculty and staff in meeting the objectives of this policy statement.
The International Traffic in Arms Regulations (ITAR) (22 CFR § 120-130) are regulations administered and enforced by the U.S. Department of State that govern the export of defense articles, defense services, and related technical data of an inherently military nature. The United States Munitions List (USML) defines twenty-one broad Categories of technologies controlled under the ITAR(22 CFR § 121.1). In assessing the export control status of technologies potentially subject to the ITAR, faculty and staff should be mindful that the USML Categories define ITAR controlled technologies in broad enough terms to encompass virtually any technology designed, modified, configured, or adapted for military use (as well as certain sensitive technologies that are controlled without regard to their intended use).
The Export Administration Regulations (EAR) (15 CFR § 730-774) are administered and enforced by the U.S. Department of Commerce and govern the export of dual use technologies having both military and civilian applications. The technologies controlled under the EAR are listed in the Commerce Control List (CCL) (15CFR § 738, Supp.1). Unlike the broad Categories of technology controlled under the ITAR, the CCL defines EAR controlled technologies with detailed specifications and assigns to each an Export Control Classification Number (ECCN), which must then be compared to the Commerce Department’s Country Chart (15 CFR § 738, Supp. 1) to determine the controls applicable to a given country. In assessing the export control status of dual use technologies, faculty and staff should be mindful that the CCL controls a variety of technologies (such as lasers, optical lenses, biological agents and imaging devices) whose military application may not be immediately apparent.
The U.S. Department of the Treasury’s Office of Foreign Asset Control administers and enforces economic and trade sanctions against certain foreign countries, organizations, persons and regimes designated by Congress as threats to the national security, foreign policy or economy of the United States. A current list of nations subject to U.S. sanctions (along with regulatory guidance) is available at the OFAC website. Although U.S. sanctions vary by country, virtually all transactions with (and, in some cases, travel to) the comprehensively embargoed countries such as Cuba, Iran, North Korea, Sudan, and Syria are prohibited. In addition, the Department of the Treasury publishes lists of Specially Designated Nationals (SDN) with whom virtually all transactions are prohibited.
This policy applies to all Washington University investigators, faculty, staff, visiting scientists, postdoctoral fellows, students, scholars and any other person working at or for Washington University. The policy sets forth the basic responsibilities that all such persons must meet in conducting their research, teaching, clinical or other activities at or on behalf of the university.
It is Washington University’s policy, as stated in its Code of Conduct, to comply with all relevant laws and regulations applicable to the University or its activities, including the Export Control Laws. No university personnel, including faculty, staff, visiting scientist, postdoctoral fellows, students, scholars, or any other person working for or at Washington University, may transfer any controlled items, services, information or technology in violation of the Export Control Laws or in violation of the policies and procedures implemented by the University as part of its export compliance program.
It is the university’s policy to assure compliance with the Export Control Laws by conducting its research and other activities under the Fundamental Research Exclusion to the Export Control Laws. The university may therefore decline any research project or other activity that would involve contractual restrictions on the university’s right to publish its research, or that would restrict participation by foreign nationals, or that would otherwise jeopardize the university’s right to conduct its research and other activities under the Fundamental Research Exclusion. All projects subject to such restrictions will be reviewed on a case-by-case basis by the Vice Chancellor for Research and the Dean of the relevant School to determine whether the risk of an export control violation can be adequately managed by obtaining an export license from the appropriate federal agency or by implementing physical and informational safeguards to prevent unlicensed foreign nationals from accessing the export controlled technology. Under these specific conditions, a restricted research project or other activity may be acceptable to the University. Such exceptions must be approved in advance by the Vice Chancellor for Research.
For those activities that fail to qualify for an exception or exclusion to the Export Control Laws, it is the policy of Washington University to take all reasonable precautions necessary to prevent unlawful access to ITAR- and EAR-controlled technologies by non-U.S. persons. Investigators will take all measures prescribed by law or required by the University’s Export Control Manager to prevent unlicensed foreign nationals from gaining access to ITAR- and EAR-controlled technology, including, when appropriate, the development and implementation of a Technology Control Plan to document the safeguards the University has put in place to prevent such access. When an export-control license is required by law, no research or other activity will commence until the license is obtained.
The University’s Export Control Manager (ECM) will be responsible for export control oversight, including the development of training, education and assessment tools, and the implementation of policies and procedures to assure the University’s ongoing compliance with the Export Control Laws. The ECM will work in partnership with faculty and administrators to assure that the University’s export compliance procedures adequately address the University’s obligations under the Export control Laws. When appropriate, the ECM will assist faculty in obtaining export control licenses for foreign nationals working on export controlled projects, or assist them in developing a Technology Control Plan to restrict unlawful access to such technologies. The ECM will also undertake such other compliance activities as are authorized under the ECM’s Delegation of Authority.
The University Provost will be the Institutional Official and Empowered Official for all export compliance purposes.
University investigators and faculty, in consultation with the ECM, bear primary responsibility for assuring export compliance for all their research, teaching, clinical or other University activities. The specific export responsibilities for investigators and faculty are set forth in the University’s Export Control Roles and Responsibilities document, as are the roles and responsibilities of the University’s administrative offices, area specific compliance offices and other University offices and personnel. Any questions regarding the University’s export control policy or the University’s expectations under the Roles and Responsibilities should be directed to the ECM at OVCRExportCompliance@wustl.edu.
Each central administrative and area specific compliance office will be responsible for assuring the University’s export compliance with respect to that specific office’s areas of control or responsibility. The ECM shall work with each such office to develop internal export control procedures. The internal procedures may be modified from time to time as is necessary to assure the University’s ongoing compliance with the Export Control Laws.
For a more detailed description of roles and responsibilities please see the Roles and Responsibilities page.
Faculty may on occasion engage in research or other activities that require foreign nationals to have access to ITAR- or EAR-controlled technologies. In all such cases an export license must be obtained from the Department of State or Department of Commerce prior to allowing foreign nationals access to the controlled technology or controlled technical information. Faculty should be aware that the application process can take from three to six months, depending on which agency has jurisdiction, the nature of the technology, and the foreign national’s country of origin. There are no guarantees that a license will be granted. Inquiries about the licensing of foreign nationals should be directed to the Export Control Manager (ECM) at OVCRExportCompliance@wustl.edu.
U.S. trade sanctions may limit the University’s ability to collaborate with persons and entities in certain embargoed countries. In particular, faculty will consult with the ECM prior to dealing with any persons or entities in comprehensively embargoed nations such as Cuba, Iran, Syria, North Sudan and North Korea. The shipping of items or transmittal of technical information to persons or entities in the embargoed countries is almost categorically prohibited and should not be undertaken without consulting the University’s Export Control Manager. Travel to embargoed countries is allowed, if at all, only under exceptional circumstances. Further guidance on specific embargoes and sanctions can be found on the OFAC website.
It is the responsibility of faculty and departmental personnel to assure that all international travel and physical shipments abroad comply with the Export Control Laws. In assessing the export control implications of such activities, faculty should remain mindful that seemingly routine activities, such as carrying controlled technical data on a laptop (or other electronic storage media) to an overseas destination, or disclosing controlled technical data at a closed conference abroad, may constitute a violation of the Export Control Laws. Any doubts about the export-control status of a proposed trip or export should be resolved in favor of contacting the ECM at OVCRExportCompliance@wustl.edu.
It is the responsibility of all University personnel, including faculty and staff, to assure that all communications of technical information comply with the Export Control Laws. In assessing the export compliance implications of such communications, faculty should remain mindful that even informal communications of controlled technical information to collaborators abroad can constitute a violation of the Export Control Laws, as can communications of controlled technical information to foreign nationals within the United States (i.e., “deemed exports”). Any doubts about the export-control status of a proposed communication should be resolved in favor of contacting the ECM at OVCRExportCompliance@wustl.edu.
The Export Control Manager will develop and make available educational materials to assist faculty and investigators in meeting their obligations under the Export Control Laws. The Export Control Manager may also require formal export control education and training for investigators, faculty, and staff who will have access to export controlled technologies in the course of their work. The Export Control Manager and other appropriate compliance offices will have the authority to conduct periodic audits of university research and other activities to assure the University’s ongoing compliance with the Export Control Laws.
Violations of the Export Control Laws carry significant criminal and civil penalties for both the University and its investigators. Criminal penalties include up to ten (10) years’ incarceration and fines ranging up to $1,000,000 per violation. Violations may also debar the University from receiving future federal funding. In addition to governmental penalties, the failure by University personnel to comply with the Export Control Laws, or with the University’s export compliance procedures, may result in a recommendation for sanctions by the University, Dean, or Vice Chancellor for Research.