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667 F.2d 1032 Septonv.Eli Lilly & Co. 80-3389 UNITED STATES COURT OF APPEALS Ninth Circuit 11/27/81 1 W.D.Wash. AFFIRMED

425 N.W.2d 352 (1988) 229 Neb. 111 STATE of Nebraska, Appellee, v. Alan LADEHOFF, Appellant. No. 87-824. Supreme Court of Nebraska. July 1, 1988. *353 Donn K. Bieber, of Otradovsky, Bieber & Westadt, Schuyler, for appellant. Robert M. Spire, Atty. Gen., and Linda L. Willard, Lincoln, for appellee. BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ. PER CURIAM. The defendant has appealed from a judgment of the district court for Colfax County sentencing him to 1 year in the Colfax County jail, following the revocation of his probation. The defendant pled guilty to third degree sexual assault of his 4-year-old niece. Under the provisions of Neb. Rev.Stat. § 28-320(3) (Reissue 1985), this is a Class I misdemeanor. On March 18, 1985, defendant was sentenced to a 2-year term of probation, to include a 30-day period of incarceration. This sentence was to be served consecutively to the jail sentence which was already being served by the defendant for other, unrelated offenses. The defendant would like to have us consider that the 2 years' probation began to run as of March 18, 1985, the date it was imposed. However, we reiterate that the present sentence was to run consecutively to a sentence then being served. The defendant has brought no record before us to establish when that latter sentence terminated so as to permit the sentence of probation to begin. Defendant must bear the burden of proving the errors he has alleged. He has not done so. The State conceded that defendant was incarcerated until August 15, 1985, for the prior offense, and then from August 16 to September 7, 1985, for the sexual assault. He then continued with his term of probation. On November 25, 1986, the State moved to revoke the defendant's probation, as he had punched his sister-in-law. The defendant admitted the assault, and on December 15, 1986, the court found defendant to be in violation of his probation. At that time, the court could have revoked defendant's probation and imposed upon him "such new sentence as might have been imposed originally for the crime of which he was convicted." Neb.Rev.Stat. § 29-2268(1) (Reissue 1985). The court *354 chose not to do so. Instead, the court proceeded under § 29-2268(2), which provides that under the circumstances presented here, if the court is of the opinion that revocation of probation is not appropriate, the court may order that: .... (c) The probationer be required to conform to one or more additional conditions of probation which may be imposed ... and (d) The probationer's term of probation be extended, subject to the provisions of section 29-2263. (Emphasis supplied.) Neb.Rev.Stat. § 29-2263 (Reissue 1985) authorizes a sentence of probation for up to 5 years upon conviction of a felony or second offense misdemeanor and 2 years upon conviction of a first offense misdemeanor. Therefore, the court, on February 2, 1987, ordered the defendant's probation extended for an additional period of 6 months and the defendant to seek counseling. On July 13, 1987, the State again moved to revoke the defendant's probation, as he had failed to complete counseling. The defendant admitted the allegation on August 17, 1987, and the court then revoked defendant's probation and on September 8, 1987, sentenced him to 1 year in the Colfax County jail, with credit given for time already served. As is apparent from the facts recited above, defendant's 2-year term of probation began to run on August 16, 1985, and would expire on August 15, 1987, if this was a first offense. The maximum term over which a sentence of probation may run for a misdemeanor is 2 years, unless it is a second offense misdemeanor. § 29-2263. Defendant argues that he was neither charged with a second offense nor does the record support such a finding. Therefore, he assigns as error that: (1) the court was without jurisdiction to sentence him on September 8, 1987, since more than 2 years had passed since the original probation order of March 18, 1985; (2) the court's sentence was invalid since the court made no finding that the misdemeanor was a second offense misdemeanor; and (3) the sentence was excessive. Assuming, without deciding, that defendant is correct in his argument that under the state of the record he could not have been sentenced for a second offense misdemeanor, defendant is entitled to no relief on this appeal. If, as defendant insists, the court was without authority to extend his probation beyond the original 2-year period, then that portion of the February 2, 1987, order was admittedly invalid. However, the fact remains that July 13, 1987, the date on which the State filed its motion charging the defendant with violating his probation and seeking to have it revoked, was within the original, valid, 2-year sentence of probation. The fact that it was not until August 17, 1987, that defendant admitted the allegation, and September 8 that the court revoked the probation, is of no moment. The revocation related back to the date the motion was filed. If a court is to revoke probation for a violation occurring within the probationary period, it is sufficient if procedure to that end was instituted within the probationary period or within a reasonable time thereafter. The fact that hearing was delayed is not ordinarily a material fact. State v. Holiday, 182 Neb. 229, 153 N.W.2d 855 (1967). The court was then authorized to impose such new sentence as might have been imposed originally for the crime of third degree sexual assault, viz, a maximum of 1 year's imprisonment. This disposes of defendant's first two assignments of error. His last claim of error is that the sentence was excessive. We have said repeatedly that a sentence within the limits prescribed by statute *355 will not be set aside as excessive absent an abuse of discretion on the part of the sentencing judge. Considering the defendant's prior record, the seriousness of the offense which he committed, and the fact that defendant was given credit for jail time spent while serving his probation, there is no abuse of discretion. The judgment of the district court is affirmed. AFFIRMED. HASTINGS, C.J., participating on briefs.

92 S.W.3d 32 (2002) 351 Ark. 260 Connie BELL v. Robert BERSHEARS. No. 02-702. Supreme Court of Arkansas. December 12, 2002. *34 Gary Eubanks & Associates, by: William Gary Holt and Robert S. Tschiemer, Little Rock, for appellant. McMillan, Turner, McCorkle & Curry, LLP, by: F. Thomas Curry, Arkadelphia, for appellee. DONALD L. CORBIN, Justice. This case involves a dispute over the award of costs following a judgment entered in favor of Appellant Connie Bell against Appellee Robert Bershears. Following entry of the judgment, both parties filed motions seeking an award of costs. Ultimately, the trial court granted Appellee's motion for costs under Ark. R. Civ. P. 68, but denied Appellant's motion for costs under Ark. R. Civ. P. 54(d). For reversal, Appellant argues that the trial court's order denying her costs and granting Appellee's costs was in error. As this appeal involves an interpretation of this court's rules, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(b)(6). We affirm the trial court's judgment in part, but we reverse and remand in part. The record reflects that Appellant filed suit against Appellee, seeking recovery for personal injuries resulting from an automobile collision between the two parties. Prior to trial, Appellee filed an offer of judgment, pursuant to Rule 68, offering to pay Appellant the sum of $13,589.00, together with costs accrued to date. Appellant rejected the offer, and the matter proceeded to trial. At trial, the jury returned a verdict in favor of Appellant in the amount of $13,200.00. Subsequently, Appellant, as the prevailing party, submitted a motion pursuant to Rule 54(d), seeking an award of costs totaling $1,161.20. This amount represented Appellant's total costs accrued, both before and after the offer of judgment. Appellee, in turn, filed a motion pursuant to Rule 68 for costs of $1,088.05, which were accrued after the date of the offer of judgment. Appellee's basis for seeking costs was that Appellant recovered an amount less than the offer of judgment; thus, Appellant was required to *35 pay those costs that accrued after the offer. A hearing on the motions was held on March 4, 2002. After considering the arguments of both parties, the trial court entered an order on March 13, and an amended order on March 26, granting Appellee's motion for costs under Rule 68. In a separate order entered on March 26, the trial court denied Appellant's motion for costs under Rule 54(d), "based on the Court's ruling that Rule 68 mandates costs to the Defendant." This appeal followed. The central issue presented by this appeal is whether an award of costs under Rule 68 precludes the trial court from also awarding costs under Rule 54(d). Resolution of this issue necessarily requires us to interpret both rules of civil procedure. We construe court rules using the same means and canons of construction used to interpret statutes. National Front Page, LLC v. State, 350 Ark. 286, 86 S.W.3d 848 (2002); Moon v. Citty, 344 Ark. 500, 42 S.W.3d 459 (2001). The first rule in considering the meaning and effect of a statute or rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language is plain and unambiguous, there is no need to resort to rules of statutory construction, and the analysis need go no further. Id. We review issues of statutory construction de novo, as it is for this court to determine what a statute or rule means. Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002); Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000). We are not bound by the trial court's decision; however, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Id. Appellant first argues that because she was the prevailing party at trial, she was entitled to an award of costs under Rule 54(d). She argues further that when her total costs are added to the damages awarded by the jury, her judgment exceeds the offer made by Appellee. Thus, she contends that Appellee was not entitled to recover his post-offer costs under Rule 68. Instead, she contends that only she should have been awarded costs, under Rule 54(d). Appellee agrees that, generally, the prevailing party is entitled to costs under Rule 54(d), but he counters that Rule 68 shifts post-offer costs to the prevailing party where a settlement offer was made and rejected, and the prevailing party received an award that was less than the offer. According to Appellee, under Rule 68 the prevailing party must pay any and all costs incurred after the offer of judgment, not just the costs of the defending party. Appellee contends further that the dictates of Rule 68 are mandatory; thus, a trial judge has no discretion in shifting post-offer costs. Finally, Appellee concedes that the costs incurred by Appellant prior to the offer of settlement are not shifted under Rule 68, but remain available for Appellant to recoup as the prevailing party under Rule 54(d). We agree with Appellee's interpretation of these rules. Rule 54(d) provides in part: "Costs shall be allowed to the prevailing party if the court so directs, unless a statute or rule makes an award mandatory." In construing this rule, this court has held that it gives the trial judge discretion in awarding authorized costs. See Zhan v. Sherman, 323 Ark. 172, 913 S.W.2d 776 (1996); Darragh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988). No such discretion exists, however, under Rule 68, which requires the trial *36 court to order an offeree to pay costs incurred after an offer of settlement is made. See Hankins v. Department of Fin. & Admin., 330 Ark. 492, 954 S.W.2d 259 (1997); Darragh, 294 Ark. 427, 743 S.W.2d 804. Rule 68 provides in pertinent part: At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and judgment shall be entered. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment exclusive of interest from the date of offer finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. [Emphasis added.] The Reporter's Notes to this rule reflect in part that the purpose behind the rule "is to encourage the early settlement of claims and to protect the party who is willing to settle from the expense and burden of costs which subsequently accrue." (Citation omitted.) This court has also recognized that the purpose of Rule 68 is to provide a means by which a defendant may compel the plaintiff realistically to reassess his claim and thereby, perhaps, persuade the plaintiff to settle. See Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000); Darragh, 294 Ark. 427, 743 S.W.2d 804. The question here is whether an award of post-offer costs to the defendant under Rule 68 necessarily precludes an award of pre-offer costs to the prevailing plaintiff under Rule 54(d). We hold that it does not. There is nothing in the language of Rule 68 that would indicate that its application divests the trial court of its discretion to consider an award of pre-offer costs to the prevailing plaintiff under Rule 54(d). Nor would Rule 68's purposes be defeated by allowing the trial court to consider such an award of pre-offer costs. Under the facts of this case, these two rules may be read harmoniously. Appellee made an offer of judgment to Appellant in an amount of $13,589.00 plus costs accrued by Appellant as of the date of the offer. Appellant rejected that offer, but she ultimately prevailed at trial. However, the jury only awarded her a judgment of $13,200.00. Accordingly, Rule 68's cost-shifting provision was triggered, requiring Appellant to "pay the costs incurred after the making of the offer." We interpret these costs to be all costs incurred after the offer, for both parties. As such, the trial court did not err in awarding Appellee his post-offer costs of $1,088.05, nor did the trial court err in denying Appellant's request for post-offer costs. However, we must reverse that part of the trial court's order denying Appellant's request for pre-offer costs under Rule 54(d). A review of the order in this case reveals that the trial judge apparently felt constrained to deny any award of costs to Appellant because Rule 68 required him to award post-offer costs to Appellee. The order reflects that "the Motion should be denied based on the Court's ruling that Rule 68 mandates costs to the Defendant." In this respect, we disagree with Appellee that the trial judge denied Appellant's pre-offer costs after exercising his discretion under Rule 54(d). *37 The bottom line is that while the trial judge correctly perceived that Rule 68 required him to award post-offer costs to Appellee and, simultaneously, to deny post-offer costs to Appellant, he incorrectly concluded that he lacked the discretionary authority to consider Appellant's motion for pre-offer costs under Rule 54(d). Accordingly, we reverse and remand this issue for the trial court to consider an award of pre-offer costs to Appellant under Rule 54(d). For her second point on appeal, Appellant argues that her costs should be included with the amount of the judgment entered for purposes of determining whether the offer exceeded the judgment. She supports this argument by pointing out that the judgment of $13,200.00, when combined with the $1,161.20 claimed in costs, totals $14,361.20, thereby exceeding the $13,589.00 offer of judgment made by Appellee. While we agree with Appellant's argument to the extent that pre-offer costs should be considered in determining whether the judgment exceeds the offer, we disagree that this calculation requires reversal. This court has never specifically addressed this issue, but in Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985), the Supreme Court held that post-offer costs serve to offset the expense of continuing the litigation and should not be included in calculating whether the judgment was more favorable than the offer of judgment. The Court agreed, however, that pre-offer costs should be included in the comparison. The Court reasoned that under Fed.R.Civ.P. 68, the drafters intended that "the offer be one that allows judgment to be taken against the defendant for both the damages caused by the challenged conduct and the costs then accrued." Id. at 6, 105 S.Ct. 3012. Thus, the Court held that regardless of whether the offer specified that it included the plaintiff's costs up to that point, it would be considered to encompass such costs. In interpreting this holding, some circuits have required that pre-offer costs be considered when determining whether the judgment obtained was more favorable than the offer of judgment. See Tunison v. Continental Airlines Corp., Inc., 162 F.3d 1187 (D.C.Cir.1998); Marryshow v. Flynn, 986 F.2d 689 (4th Cir.1993). See also Grosvenor v. Brienen, 801 F.2d 944 (1986). We believe that this is a well-reasoned approach. Applying such rationale to the present case, however, does not benefit Appellant. Here, the offer made by Appellee was for $13,589.00, "together with costs accrued to date." Appellant's counsel's affidavit submitted with her motion for costs demonstrates that she incurred pre-offer costs totaling $251.50. Thus, Appellee's settlement offer totaled $13,840.50. On the other hand, combining the $251.50 in pre-offer costs with the actual judgment results in a total judgment of $13,451.50, an amount still less favorable than the offer made by Appellee prior to trial. Accordingly, Appellant's argument on this point fails. Appellant's last two points for reversal, that the costs awarded to Appellee are unreasonable and that Rule 68 is unconstitutional, may be summarily affirmed because Appellant failed to obtain rulings on these issues from the trial court. This court has repeatedly held that a party's failure to obtain a ruling is a procedural bar to this court's consideration of the issue on appeal. See, e.g., Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002); E-Z Cash Advance, Inc. v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001); Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000). This is true even of constitutional arguments. Doe, 348 Ark. 259, 72 S.W.3d 476. *38 The record in this case reflects that both issues were raised in the motions filed below and were argued orally before the trial court. However, neither the abstract of the hearing nor the judgments reflect any specific rulings on these issues. Accordingly, we are precluded from reviewing them on appeal. In sum, we affirm that part of the trial court's judgment awarding Appellee his post-offer costs and denying Appellant her post-offer costs under Rule 68. We reverse that part of the judgment denying pre-offer costs to Appellant, as it is not apparent that the trial court exercised its discretion under Rule 54(d). Accordingly, we remand this matter to the trial court to consider whether Appellant, as the prevailing party, may recoup costs that she incurred prior to the offer of settlement. As stated above, this decision rests within the discretion of the trial court. Affirmed in part; reversed and remanded in part.

19 So.3d 264 (2007) JIMMY FRANKLIN OLLIE v. STATE. No. CR-06-1463. Court of Criminal Appeals of Alabama. October 12, 2007. Decision of the alabama court of criminal appeal without published opinion. Rehearing denied.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) KATHLEEN BREEN, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 05-0654 (PLF) ) ELAINE L. CHAO, Secretary of ) Transportation, Department of ) Transportation, et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION AND ORDER According to counsel for the represented plaintiffs, David Almaguer is an original plaintiff who has not retained plaintiffs’ counsel. See Plaintiffs’ Status Report [Dkt. No. 430]. Plaintiff David Almaguer has failed to file anything on the docket. See July 10, 2019 Order [Dkt. No. 432]. Accordingly, the Court issued an Order directing Mr. Almaguer to file a notice with the Court explaining whether he intends to proceed in this case, and if so, whether he will proceed represented by counsel or pro se. Id. After not receiving a response from Mr. Almaguer, the Court issued two more orders directing Mr. Almaguer to indicate whether he plans to proceed in the case and to verify his contact information with the Court. See September 4, 2019 Order [Dkt. No. 445]; October 25, 2019 Order [Dkt. No. 452]. The Clerk’s Office sent hard copies of these orders to Mr. Almaguer, but he still has failed to respond to any of the Court’s orders. Courts have “inherent” power to manage their dockets. Garlington v. D.C. Water & Sewer Auth., 62 F. Supp. 3d 23, 26 (D.D.C. 2014) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). This includes the power to dismiss a case “for a plaintiff’s failure to prosecute or otherwise comply with a court order.” Holston v. Vance-Cooks, No. 12-CV-1536, 2013 WL 5912475, at *1 (D.D.C. Nov. 5, 2013) (citing Angellino v. Royal Family Al–Saud, 688 F.3d 771, 775 (D.C. Cir. 2012); see also Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962) (same); Peterson v. Archstone Communities LLC, 637 F.3d 416, 418 (D.C. Cir. 2011) (same)). The Local Civil Rules of this Court specify that “dismissal for failure to prosecute may be ordered . . . upon the Court’s own motion.” L. CIV. R. 83.23. While pro se litigants are “afforded more latitude than those who are represented by counsel,” this does not give them license to “[completely] disregard court orders.” Garlington v. D.C. Water & Sewer Auth., 62 F. Supp. 3d at 27 (internal citation omitted). After not receiving notice from Mr. Almaguer in response to the Court’s July 10, 2019 Order, the Court’s two subsequent Orders warned that he could be dismissed as a plaintiff for failure to prosecute if he did not respond. See September 4, 2019 Order [Dkt. No. 445]; October 25, 2019 Order [Dkt. No. 452]. In light of Mr. Almaguer’s repeated failure to respond to the Court’s orders, the Court will dismiss him as a plaintiff without prejudice for failure to prosecute and failure to comply with the Court’s orders. Accordingly, it is hereby ORDERED that David Almaguer is dismissed as a plaintiff in this case, without prejudice. SO ORDERED. . PAUL L. FRIEDMAN United States District Judge DATE: November 27, 2019 2 

238 S.W.2d 125 (1951) WAGERS et al. v. WAGERS. Court of Appeals of Kentucky. March 23, 1951. Roy House, Manchester, for appellants. Wm. Lewis, William J. Weaver, London, for appellee. LATIMER, Justice. W. O. Wagers instituted this action to quiet title against the claims of Ernest and Norma Wagers and to have an alleged cloud removed from his title. The defendants, by their counterclaim, alleged ownership of the boundary of land in dispute. The actual dispute is over the location of the dividing line between the plaintiff's and the defendants' land situated on Moses Branch in Clay County. It is admitted in both the pleadings and the proof that the description of the correct line between the lands of the plaintiff and defendants is found in the original deed of the common grantor which reads: "* * thence with a marked course of said fence S 89½ E 14 poles to a stake on the left side of Moses Branch; thence up the left side of Moses Branch with the foot of the hill and fence to a point opposite E.J. Howard's line to a stake corner where said line comes down the point to a plank fence * * *." *126 It is obvious from the foregoing description that the location of the dividing line is governed to a great extent by the location of the foot of the hill and the fence. Both the surveyor for the plaintiff, J.H. Graham, and the surveyor for the defendants, J. M. Culton, in substance, say they correctly located the dividing line on Moses Branch. However, their maps differ to some extent although the difference is not very great. Surveyor Graham testified that he ran a course to the left side of Moses Branch and then up the left or east side of Moses Branch along the foot of the hill. He further testified that he was guided by an impression of an old fence and by some marked timber. Surveyor Culton testified that his map was substantially the same as surveyor Graham's map but stated Graham instead of following the hill "got up on the side of the hill". He said that he, himself, was guided by an old fence post about a foot high at the lower side of where the road used to run on dry land. Simon Stewart, the defendants' predecessor in title, testified that the old fence was where surveyor Culton had located the dividing line. Ben Howard, who is the son of the common grantor of both of these tracts of land, testified that the old fence was built of rails, poles and slack rock. The plaintiff contends and there is corroborative testimony with respect thereto that Surveyor Graham followed the impression left by this fence. Ben Howard further testified that in places "Moses Branch runs near the foot of the hill and in places it didn't". Generally, in determining boundaries, natural and permanent monuments are the most satisfactory evidence and control all other means of description, and artificial marks, courses, distances and area follow in the order named, area being the weakest of all means of description. Metropolitan Life Insurance Co. v. Hoskins et al., 273 Ky. 563, 117 S.W.2d 180. We held in the case of Sells et al. v. Hurley, 301 Ky. 199, 191 S.W.2d 212, that for the purpose of determining the location of lost monuments, the court may consider the testimony of persons who saw them when they were discernible, and may admit proof of acquiescence of the parties and the general reputation and tradition as to where the lost monuments had been located. The evidence in this case is not sufficient to constitute acquiescence in the line alleged by the defendants to be the correct dividing line. We held in the case of Cline et al. v. Blackburn et al., 292 Ky. 713, 168 S.W.2d 15, that where land is covered by overlapping title papers, in order to establish a boundary line other than the line fixed by the superior title, it must be shown that the line was agreed upon, that the parties took actual possession up to the line and continued the possession for a considerable period of time. In the instant case there is evidence that the plaintiff and his predecessors in title asserted ownership of the land located on the east side of Moses Branch and that there was never a dispute as to the actual location of the boundary until shortly before this suit was filed. In this case we have the testimony of two competent surveyors. Both believe that they have correctly located the dividing line between the plaintiff's and the defendants' property. One of them necessarily is wrong. The evidence as to the location of the old fence is in direct conflict. From a very careful reading of the entire record, we are of the opinion that the judgment of the lower court in accepting the map of J. H. Graham, as correctly defining the boundary line between the plaintiff's and the defendants' land, is supported by substantial evidence. Had the Chancellor chosen to accept the Culton survey, we could not reverse on the issue of unsubstantiality of evidence. We here feel constrained to follow the rule of non-interference when there is not sufficient evidence of substance to create more than a doubt as to the correctness of the judgment. The judgment is affirmed.

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 18-1316 ___________ CARLOS SALGUERO, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A206-904-809) Immigration Judge: Mirlande Tadal ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) December 14, 2018 Before: CHAGARES, BIBAS and GREENBERG, Circuit Judges (Opinion filed: May 2, 2019) ___________ OPINION * ___________ PER CURIAM * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  Carlos Salguero, proceeding pro se, petitions for review of an order of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We will dismiss the petition in part and deny it in part. I. Salguero is a citizen of Guatemala who entered the United States without inspection in 2005. After he was convicted of receiving stolen property, driving under the influence, and other offenses, the Department of Homeland Security (DHS) began removal proceedings, charging him with inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i). Salguero admitted nearly all the factual allegations, and the Immigration Judge (IJ) sustained the charge of removability. Salguero then filed an application for asylum, withholding of removal, and protection under the CAT. At the merits hearing, Salguero proceeded pro se and testified in support of his claims. Salguero left Guatemala in 2005, at age 18, because of the violence in his country. That violence included the killings of his uncle and cousin, but Salguero was never physically harmed. Salguero testified that he fears returning to Guatemala because he was assaulted twice in Princeton, New Jersey, by a former housemate named Oscar. Salguero said that the two did not get along, and that the assaults were prompted by a private dispute. Salguero also said that, although the assaults were not gang related, Oscar was an MS-13 gang member. Salguero sustained no serious injuries during the first assault, and did not report it to the police. The second assault resulted in a laceration over Salguero’s left eye 2 that required nine stitches. Salguero reported this assault to police, but Oscar apparently fled and Salguero has not seen him since the incident. Salguero testified that his parents and sister still live in Guatemala. Once, in 2014, Oscar’s family and friends threatened Salguero’s family in Guatemala. They also threatened to kill Salguero, if he returned, because he had reported Oscar to the police in the United States. Since that incident in 2014, Oscar’s family has not had any contact with Salguero’s family, and Salguero has not been informed of Oscar’s whereabouts. The IJ determined that Salguero was credible and had provided sufficient corroboration for his claims, but nonetheless denied relief. The IJ found that Salguero’s asylum request was time barred because it was not made within a year of arrival or within a reasonable time after the 2013 assault. Salguero’s withholding claim was denied by the IJ because Salguero did not demonstrate past persecution in Guatemala, and did not show a clear probability of future persecution on account of a protected ground. The IJ noted that it has been three years since anyone associated with Oscar contacted Salguero’s family, that Salguero himself has not been harmed since the 2013 incident, and that any potential harm to Salguero would not be based on a protected ground, as his dispute with Oscar was personal. Additionally, the IJ determined that Salguero failed to establish that the government of Guatemala would not protect him. Finally, the IJ rejected Salguero’s CAT claim, because Salguero did not show that he would likely be tortured by or at the acquiescence of the Guatemalan government. Salguero appealed to the BIA. He sought to modify his claims for relief by identifying himself as a member of a new particular social group based on new evidence 3 that Oscar had assaulted him for refusing to join the MS-13 gang. The BIA concluded that Salguero could not raise this issue for the first time on appeal. The BIA then affirmed the IJ’s denial of Salguero’s withholding and CAT claims. 1 Relying on the IJ’s analysis, the BIA determined that Salguero had not established past persecution or a clear probability of future persecution on account of a protected ground. The BIA affirmed the IJ’s denial of Salguero’s CAT claim. In his appeal to the BIA, Salguero also argued that the IJ had erred by failing to inform Salguero of his potential eligibility for a U Visa, see 8 U.S.C. § 1101(a)(15)(U), and by failing to grant a continuance. The BIA denied this claim because Salguero did not show prima facie evidence of his eligibility for a U Visa and had never sought a continuance. The Board noted that Salguero could, in any event, pursue a U Visa petition through the U.S. Citizenship and Immigration Services (USCIS). Salguero did not present any other due process claims to the BIA. This petition for review followed. II. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review both the IJ’s and BIA’s decisions where, as here, the BIA issued its own opinion that “invoke[d] specific aspects of the IJ’s analysis and fact-finding in support of [its] conclusions.” Green v. Att’y Gen. U.S., 694 F.3d 503, 506 (3d Cir. 2012) (alteration in original) (quoting Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir. 2005)). We review the agency’s legal conclusions under a de novo standard, but must uphold the agency’s factual findings “unless any 1 Salguero did not challenge the IJ’s denial of his application for asylum. 4 reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Mendoza-Ordonez v. Att’y Gen. U.S., 869 F.3d 164, 169 (3d Cir. 2017). III. Salguero raises two arguments regarding his withholding and CAT claims. 2 First, he argues that the agency erred in determining that he had failed to show past persecution, a clear probability of future persecution, or a likelihood that he will be tortured if he is returned to Guatemala. Second, he argues that the BIA erred in denying his request to raise a new particular social group claim—which Salguero has clarified on appeal—based on Oscar’s gang-related motivations. To obtain withholding of removal, an alien must show that he will be persecuted, meaning his “life or freedom would be threatened” upon his removal to a particular country “because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see also Garcia v. Att’y Gen. U.S., 665 F.3d 496, 505 (3d Cir. 2011). The alien must show a “clear probability” of persecution, meaning “that persecution would ‘more likely than not’ occur.” Garcia, 665 F.3d at 505 (citations omitted). A showing of past persecution gives rise to a rebuttable presumption of future persecution. Id. The alien must “show a sufficient 2 Salguero has waived any arguments regarding his asylum application by failing to present them in his brief. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004). Even if he were to challenge the agency’s determination that his asylum application was untimely, we would likely lack jurisdiction to review that claim. See Sukwanputra v. Gonzales, 434 F.3d 627, 633 (3d Cir. 2006). 5 ‘nexus’ between persecution and one of the listed protected grounds.” Ndayshimiye v. Att’y Gen. U.S., 557 F.3d 124, 129 (3d Cir. 2009). Substantial evidence supports the agency’s determination that Salguero failed to show that he suffered past persecution, as he testified that he was never personally harmed in Guatemala on account of a protected ground. Substantial evidence also supports the agency’s determination that Salguero failed to establish a clear probability of future persecution in Guatemala. Salguero presented evidence of a single threat—issued over three years ago—that he would be harmed if he returned to Guatemala. See generally Voci, 409 F.3d at 615 (noting that isolated incidents generally do not rise to the level of persecution); Li v. Att’y Gen. U.S., 400 F.3d 157, 164-65 (3d Cir. 2005) (noting that threats, standing alone, qualify as persecution in a small category of cases). Salguero admitted that he has not heard from Oscar since then. This record does not compel a conclusion contrary to the agency’s determination about the likelihood of future persecution. 3 Salguero’s CAT claim fails for similar reasons. An alien seeking relief under the CAT must demonstrate that it is “more likely than not” that he will be tortured in the 3 Accordingly, we need not reach the BIA’s alternative holdings, including those grounded in nexus and the particular social group that Salguero argued to the IJ. We also need not reach Salguero’s claims premised on a new formulation of the particular social group. In any event, we note, the BIA may decline to reach legal arguments that were not raised before the IJ. See, e.g., Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 440 (8th Cir. 2008); Torres de la Cruz v. Maurer, 483 F.3d 1013, 1023 (10th Cir. 2007). We note, too, the force of the BIA’s reliance on Salguero’s testimony that his disagreements with Oscar stemmed from personal disputes. See Ndayshimiye, 557 F.3d at 132 (citing Amanfi v. Ashcroft, 328 F.3d 719, 724 (3d Cir. 2003) (no persecution based on a “private dispute”)). 6 event of return to a designated country. 8 C.F.R. § 1208.16(c)(2). The agency’s determination that Salguero has not met this standard, based on the same set of facts, is supported by substantial evidence. Salguero next argues that he was denied due process because the IJ failed to advise him that he could apply for a U visa. IJs have a duty to inform aliens appearing before them of their potential eligibility for certain forms of relief. Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir. 2005) (noting BIA authority for the proposition that “[a]n IJ has a duty to inform aliens of potential forms of relief for which they are apparently eligible”). But eligibility for a U visa falls outside the IJ’s authority; as the BIA noted, USCIS has exclusive jurisdiction over U visas. See 8 C.F.R. § 214.14(c)(1); see also Sunday v. Att’y Gen. U.S., 832 F.3d 211, 213 (3d Cir. 2016). 4 The filing of an application for a U visa has no effect on DHS’s authority to execute a final removal order, see § 214.14(c)(1)(ii), and if a U visa application is approved, the alien can move to reopen and terminate the removal proceedings, see § 214.14(c)(5)(i). Thus, the IJ’s failure to inform Salguero of his eligibility for a U visa did not affect his ability to seek or obtain such relief. Accordingly, Salguero cannot establish a viable due process claim. See Bonhometre, 414 F.3d at 448 (requiring a showing of substantial prejudice to prevail on a due process claim like this). 5 4 As the BIA also noted, Salguero had failed to show his prima facie eligibility for a U Visa. 5 Salguero has waived any issue regarding a continuance because he failed to argue it in his brief. See Chen, 381 F.3d at 235. Moreover, we note that Salguero never sought a continuance to pursue a U Visa, and has never alleged that he is pursuing a U Visa with USCIS. Cf. Matter of Sanchez Sosa, 25 I. & N. Dec. 807, 812-16 (BIA 2012). Thus, the 7  The remainder of Salguero’s petition raises due process claims that he never presented to the BIA. 6 We have jurisdiction to review only claims that have been exhausted before the BIA. See 8 U.S.C. § 1252(d)(1); Lin v. Att’y Gen., 543 F.3d 114, 119-21 (3d Cir. 2008). Because Salguero did not raise these remaining due process claims before the BIA, we lack jurisdiction to consider them. See Zheng v. Gonzales, 422 F.3d 98, 107-08 (3d Cir. 2005). Salguero has not argued—and the record does not indicate—that the BIA was incompetent to consider these claims, see Bonhometre, 414 F.3d at 447-48, or that there are any other grounds to excuse exhaustion or to deem the claims exhausted, see Lin, 543 F.3d at 119-24. Thus, we will dismiss the petition for review with respect to these claims. Accordingly, we will dismiss the petition for review in part and deny it in part. BIA did not abuse its discretion in determining that Salguero was not entitled to a continuance to pursue a U Visa under these circumstances. Cf. Simon v. Holder, 654 F.3d 440, 443 (3d Cir. 2011). 6 These include claims related to his waiver of counsel, the government’s presentation of certain evidence, and the IJ’s alleged failure to advise him of the relevant standards of proof. 8 

992 P.2d 93 (2000) 92 Hawai`i 398 DAIRY ROAD PARTNERS, dba Dairy Road Shell, Plaintiff-Appellee/Cross-Appellant, and Shell Oil Company, Plaintiff, v. ISLAND INSURANCE COMPANY, LTD., a Hawai`i corporation, Defendant-Appellant/Cross-Appellee. Nos. 21402, 21439. Supreme Court of Hawai`i. February 1, 2000. Reconsideration Denied February 22, 2000. *96 Eric S. Yamagata, Honolulu, for the plaintiff-appellee/cross-appellant Dairy Road Partners, dba Dairy Road Shell. Roy F. Hughes and Ross N. Taosaka (Hughes & Taosaka) Honolulu, for the defendant-appellant/cross-appellee Island Insurance Co., Ltd. MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and RAMIL, JJ. *97 Opinion of the Court by LEVINSON, J. In this consolidated appeal, both parties[1] challenge portions of the first circuit court's orders granting in part and denying in part their cross-motions for summary judgment. The case arises out of a complaint filed by the plaintiff-appellee/cross-appellant Dairy Road Partners, dba Dairy Road Shell [hereinafter, DRP], and the plaintiff Shell Oil Company [hereinafter, Shell] seeking a declaration that the defendant-appellant/cross-appellee Island Insurance Company [hereinafter, Island] has a duty to defend and indemnify DRP and Shell, pursuant to four separate insurance policies issued by Island to DRP, in two separate lawsuits concerning an automobile accident allegedly caused by a DRP employee (collectively, "the underlying lawsuits").[2] On cross-motions for summary judgment, the circuit court ruled that (1) Island is not required to defend or indemnify DRP or Shell pursuant to (a) DRP's business auto policy or (b) DRP's commercial general liability policy, but (2) a genuine issue of material fact remained with regard to whether Island is required to defend and indemnify DRP and Shell pursuant to DRP's (a) commercial garage liability policy and (b) commercial umbrella insurance policy. Accordingly, the circuit court granted Island's motion for summary judgment with respect to the business auto policy and the commercial general liability policy but denied it with respect to the commercial garage liability policy and the commercial umbrella insurance policy. The circuit court also purported to grant in part and deny in part DRP's motion for summary judgment, although it articulated the same conclusions with regard to all four policies described above. On appeal, Island argues that the circuit court erred in denying its motion for summary judgment with respect to its duty to defend and indemnify pursuant to the commercial garage liability policy and the commercial umbrella insurance policy because Island had made an adequate showing that there is no possibility of coverage under either policy. We hold that DRP established, as a matter of law, that there was a possibility of coverage under the commercial garage liability policy at the time of tender of defense. However, inasmuch as DRP raised the issue of indemnity in its complaint, in connection with which Island adduced uncontroverted evidence demonstrating that the accident is not covered by the commercial garage liability policy, we hold that Island was entitled both to a judgment that it has no duty to indemnify DRP and that, as of the date of the entry of the circuit court's judgment to that effect, Island's duty to defend will also end. Therefore, pursuant to the commercial garage liability policy, Island is responsible for the costs of DRP's defense incurred between the date of tender and the date of the circuit court's judgment, but not for any subsequent costs. With respect to the commercial umbrella insurance policy, we hold, as a matter of law, that Island was entitled to a judgment that it had no duty to defend or indemnify DRP. In its cross-appeal, DRP argues that the circuit court erred in granting Island's motion for summary judgment in connection with Island's duty to defend and indemnify, pursuant to the business auto policy and the commercial general liability policy, because there were no applicable exclusions to policy coverage and Island failed to demonstrate that there was no possibility of coverage under either policy. DRP further argues that the circuit court erred in denying its motions for reconsideration of the circuit court's orders granting in part and denying in part its motions for summary judgment. With regard to the commercial general liability policy, we hold that Island was entitled to summary judgment on the issue of both its duty to defend and its duty to indemnify. With regard to the business auto policy, we *98 hold that Island is obligated to defend and indemnify DRP. Accordingly, we vacate the circuit court's Hawai`i Rules of Civil Procedure (HRCP) Rule 54 judgment and the foundational orders concerning the parties' motions for summary judgment and remand for: (1) the entry of an order (a) granting in part and denying in part Island's motion for summary judgment with respect to its duty to defend and indemnify DRP pursuant to the commercial garage liability policy, (b) denying Island's motion for summary judgment with respect to Island's duty to defend DRP pursuant to the business auto policy, and (c) granting Island's motion for summary judgment with respect to Island's duty to defend DRP pursuant to the commercial general liability policy and the commercial umbrella insurance policy; and (2) the entry of an order (a) granting in part and denying in part DRP's motion for summary judgment with regard to the commercial garage liability policy, (b) granting summary judgment in favor of DRP with respect to Island's duty to defend DRP pursuant to the business auto policy, and (c) denying DRP's motion for summary judgment with respect to the commercial general liability policy and the commercial umbrella insurance policy. I. BACKGROUND A. The Underlying Lawsuits On March 9, 1994, June Wolken-Vierra, as guardian ad litem of Alan Kaua Vierra, a minor, and as personal representative of the estate of Alvin K. Vierra, Jr., filed a complaint (Civil No. 94-0157(2)) in the second circuit court, naming Shell, Garth Nakamura, and Brian Connelly as defendants. The complaint alleged in relevant part: ... On November 25, 1993, in the early morning hours, shortly before the death of ALVIN K. VIERRA, JR., ... NAKAMURA was consuming alcoholic beverages at the Dairy Road Station, Kahului, Hawaii. ... On Thursday, November 25, 1993, ALVIN K. VIERRA, JR. was hit by a vehicle driven by ... NAKAMURA, and[,] as he lay in the road[,] ALVIN K. VIERRA, JR. was run over by a vehicle driven by ... CONNELLY. ... At all times material, ... NAKAMURA[ ] was employed by the SHELL OIL CO. and was acting within the scope of his employment when he consumed alcohol and drove a motor vehicle into ALVIN K. VIERRA, JR., who was a pedestrian. . . . . ... The conduct of Defendants [was] negligent. ... As a direct proximate and legal result of the conduct of Defendants aforesaid, or any of them, ALVIN K. VIERRA, JR. was killed after he sustained serious physical injury, pain and suffering[,] and other damages as shall be proved at the time of trial. On February 6, 1995, Wolken-Vierra filed a motion for an order identifying DRP as a "Doe Partnership," averring in an affidavit of counsel that "investigation has revealed that [DRP] was an employer of ... Nakamura." The circuit court granted the motion in an order dated the same day. On June 17, 1994, Thelma Vierra and Alvin K. Vierra, Sr. (collectively, the Vierras), who are apparently the parents of the decedent, Alvin K. Vierra, Jr., filed a separate complaint (Civil No. 94-0452(2)) in the second circuit court, naming Shell, Nakamura, and Connelly as defendants. The Vierras' complaint made allegations similar to those in Wolken-Vierra's complaint. The Vierras' complaint, however, also alleged vicarious liability on the part of Shell. On November 22, 1995, the Vierras filed a first amended complaint, naming DRP as a defendant and additionally alleging in relevant part that: (1) Nakamura had acted within the scope of his "agency or employment during the events that caused or contributed to the accident"; (2) DRP had been negligent in "allowing the drinking of alcohol on its premises"; and (3) DRP was vicariously liable for Nakamura's negligence. B. The Insurance Policies On cross-motions for summary judgment in the present case, see infra, section I.C, both parties adduced evidence that, at the time of the alleged accident, DRP was the *99 named insured on four separate insurance policies issued by Island: (1) a business auto policy (Policy No. BAP 12054); (2) a commercial garage liability policy (Policy No. CGP 60245-01); (3) a commercial general liability policy (Policy No. IM XXXXXX-XX); and (4) a commercial umbrella insurance policy (Policy No. IUB XXXXXXX-XX). 1. The business auto policy In the section entitled "PART IV—LIABILITY INSURANCE," the business auto policy provides in relevant part: A. WE WILL PAY. 1. We will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto. 2. We have the right and duty to defend any suit asking for these damages. However, we have no duty to defend suits for bodily injury or property damage not covered by this policy. We may investigate and settle any claim or suit as we consider appropriate. Our payment of the LIABILITY INSURANCE limit ends our duty to defend or settle..... D. WHO IS INSURED. 1. You are an insured for any covered auto. (Emphases added.) "Bodily injury" is defined in Part I of the policy as "bodily injury, sickness or disease including death from any of these." Part II of the policy provides in relevant part that "ITEM TWO of the declarations shows the autos that are covered autos for each of your coverages. The numerical symbols explained in ITEM THREE of the declarations describe which autos that are covered autos. The symbols entered next to a coverage designate the only autos that are covered autos." "ITEM TWO of the declarations" section of the business auto policy was not made a part of either party's filings in connection with the motions for summary judgment. As described infra, however, DRP adduced evidence of that page[3] as an attachment to, and basis for, a motion for reconsideration of the circuit court's orders on the motions for summary judgment. A "Renewal Certificate," which was attached to both parties' motions for summary judgment and which, by its terms, was "effective" as of the date of the accident, provides in relevant part: In return for the payment of the renewal premium, and subject to all the terms of the policy, we agree with you to provide the Insurance as stated in this certificate. 3. This Policy consists of the following Coverage Part(s) for which a Premium is indicated. This Premium may be subject to adjustment. COVERAGE PART(S) PREMIUM . . . . Employer[']s Non-Ownership 92. (Emphasis added.) Finally, each party included, as an attachment to their motions for summary judgment, *100 a document that appears to be a computer-printout entitled "DECLARATION PAGE—PART 2." While the document contains little descriptive language, it appears to list two specific automobiles, together with coverage amounts, as well as premium amounts for "USE OF OTHER AUTO," "EMPLOYER'S NON OWNED," and "HIRED AUTO." Two documents entitled "Amendment Of Declarations" list one additional vehicle each with premium amounts. It is uncontroverted that Nakamura's vehicle was not among the four listed in the foregoing documents. 2. The commercial garage liability policy Part IV of the commercial garage liability policy, entitled "LIABILITY INSURANCE," provides in relevant part: A. WE WILL PAY. 1. We will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies caused by an accident and resulting from garage operations. 2. We have the right and the duty to defend any suit asking for these damages. However we have no duty to defend suits for bodily injury or property damage not covered by this policy. We may investigate and settle any claim or suit as we consider appropriate. Our payment of the LIABILITY INSURANCE limit ends our duty to defend or settle. . . . . D. WHO IS AN INSURED 1. For Covered Autos. a. You are an insured for any covered auto. . . . . 2. For Garage Operations Other Than Covered Autos. a. You are an insured. b. Your employees, directors, or shareholders are insureds, but only while acting within the scope of their duties. (Bold face emphasis in original.) In Part I, "garage operations" is defined as the ownership, maintenance or use of locations for garage business and that portion of the roads or other accesses that adjoin these locations. Garage operations includes the ownership, maintenance or use of the autos indicated in PART II as covered autos. Garage operations also include all operations necessary or incidental to a garage business. (Bold face emphasis in original.) (Underlined emphasis added.) "Bodily injury" is defined as "bodily injury, sickness or disease resulting from any of these," and "accident" "includes continuous or repeated exposure to the same conditions resulting in bodily injury or property damage to the insured neither expected nor intended." Moreover, "`[y]ou' and `your' mean the person or organization shown as the named insured in ITEM ONE of the declarations." (Bold face emphasis in original.) The "declarations" page of the commercial garage liability policy provides in relevant part: ITEM TWO SCHEDULE OF COVERAGES AND COVERED AUTOS This policy provides only those coverages where a charge is shown in the premium column below. Each of these coverages will apply only to those "autos" shown as covered "autos." "Autos" are shown as covered "autos" for a particular coverage by the entry of one or more of the symbols from the COVERED AUTO Section of the Garage Coverage Form next to the name of the coverage. Entry of a symbol next to LIABILITY provides coverage for "garage operations." (Bold face emphasis in original.) In the blank provided next to "LIABILITY INSURANCE," the symbol "29" is indicated as a "covered auto." "ITEM THREE" of the policy defines symbol "29" as follows: "29 = NON-OWNED AUTOS USED IN YOUR GARAGE BUSINESS. Any auto you do not own, lease, hire or borrow used in connection with your garage business described in these declarations. This includes autos owned by your employees or members of *101 their households while used in your garage business." (Bold face emphasis in original.) 3. The commercial general liability policy In Section I, entitled "COVERAGES," the commercial general liability policy provides in relevant part: COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1. Insuring Agreement. a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend any "suit" seeking those damages. We may at our discretion investigate any "occurrence" and settle any claim or "suit" that may result. . . . . b. This insurance applies to "bodily injury" and "property damage" only if: (1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory;" and (2) The "bodily injury" or "property damage" occurs during the policy period. . . . . 2. Exclusions. This insurance does not apply to: . . . . g. "Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto["] or watercraft owned or operated by or rented or loaned to any insured. (Bold face emphases in original.) (Underlined emphases added.) "Occurrence" is defined by the policy as "an accident, including continuous or repeated exposure to substantially the same harmful conditions." Section II, entitled "WHO IS AN INSURED," provides in relevant part: 1. If you are designated in the Declarations as: a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner. b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business. c. An organization other than a partnership or joint venture, you are an insured. Your executive officers and directors are insured, but only with respect to their duties as your officers and directors. Your stockholders are also insureds but also with respect to their liability as stockholders. 2. Each of the following is also an insured: a. Your employees, other than your executive officers, but only for acts within the scope of their employment by you.... (Bold face emphases in original.) (Underlined emphases added.) Although not expressly entitled "Declarations," a document accompanying the policy, which sets forth the premium amounts, policy period, and other information relevant to the individual coverage purchased by DRP, lists DRP as a partnership in its section designating "Form of Business." Section V defines "bodily injury" as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time," and "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." 4. The commercial umbrella insurance policy Section 2 of the commercial umbrella insurance policy, entitled "INSURING AGREEMENTS," provides in relevant part: 2.01 Coverage We will pay the "Ultimate Net Loss" in excess of the "Retained Limit" the "insured" becomes legally obligated to pay as *102 damages because of "personal injury" or "property damage" to which this insurance applies. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided under Item 2.02 Defense, Settlement and Supplementary Payments. The "personal injury" or "property damage" must be caused by an "occurrence" which occurs during the policy period. The policy defines "Ultimate Net Loss" as the sums which you have paid or are responsible for paying either by adjudication or compromise providing that we have agreed in writing to settle losses covered under this policy. This excludes defense, settlement and Supplementary Payments, including those which are the responsibility of the carrier of the "underlying insurance". All recoverages and salvages which are collectibles from any party shall be deducted in arriving at the "Ultimate Net Loss." The policy defines "Retained Limit" as the greater of A) An amount equal to the limits of insurance applicable to "underlying insurance"; or B) The amount specified in item 1.5 of the Declarations applying to damages arising out of any one "occurrence" not covered by underlying insurance". "Underlying insurance" is defined as "those policies designated in Item 1.6 of the Declaration or renewals or replacements thereof which are not more restrictive and any other `underlying' insurance collectible by or payable on behalf of the `insured.'" "Personal injury" is defined, inter alia, as "[b]odily injury, sickness or disease sustained by a person and if resulting from the foregoing shall include disability, shock, mental anguish or mental injury." "Occurrence" is defined in relevant part as "an act, accident or event resulting in `personal injury' or `property damage.'" Item 1.5 of the "Declarations" page lists the amount of $10,000.00 as the "Retained Limit" applicable to "occurrences" not covered by underlying insurance. Item 1.6 of the "Declarations" page lists DRP's business auto policy, commercial general liability policy, commercial garage liability policy, and worker's compensation policy, along with separate "retained limit" amounts for each. Endorsement ICU-103 to the commercial umbrella insurance policy provides in relevant part: Except to the extent coverage is provided in "underlying insurance" listed in Section 1.6 of this policy, this policy does not apply to ownership, maintenance, use, loading or unloading of: . . . . 3. any ... "auto" operated by any person in the course of that person's employment by you. This exclusion applies if coverage as listed in Item 1.6 of the Declarations is not available or is available only to the extent of lower limits. 5. Tender and refusal of defense At some point prior to October 5, 1994, Shell tendered its defense in the Vierras' lawsuit to Island, claiming to be an additional insured on Island's commercial general liability policy and commercial garage liability policy. In a letter written by its counsel, dated October 5, 1994, Island refused Shell's tender. In addition to discussing the applicable law, Island's October 5, 1994 letter made the following observations about Island's investigation and understanding of the facts of the case: A factual investigation of this matter is undeveloped largely in part because of pending criminal charges against Garth Nakamura, manager of and son of the owner of Dairy. Apparently after work, Mr. Nakamura had some beer to drink before proceeding home. He was operating his personal automobile when he struck the rear of Alvin K. Vierra, Jr.'s parked vehicle which had been pulled over on the shoulder of the highway and was disabled. A copy of the initial two pages of the Police Report is attached showing Garth Nakamura to be operating his personal vehicle. In a letter dated February 6, 1995, counsel for both Shell and DRP responded to Island's October 5, 1994 letter, arguing that *103 Island had misinterpreted the commercial general liability policy and the commercial garage liability policy. Additionally, on February 7, 1995, counsel for DRP tendered its defense in Wolken-Vierra's lawsuit pursuant to the commercial garage liability policy, the commercial general liability policy, and the commercial umbrella insurance policy. Island again refused. On February 23, 1995, Island acknowledged receipt of a letter, dated February 13, 1995 from DRP's counsel, tendering DRP's defense pursuant to the business auto policy. Island refused that tender as well. No further correspondence appears in the record. C. Procedural History On April 3, 1995, DRP and Shell filed a complaint in the first circuit court praying for a declaration that Island was obligated to defend and indemnify DRP and Shell in the underlying lawsuits. On June 5, 1996, Island filed a motion for summary judgment, asserting that, as a matter of law, it was entitled to a judgment in its favor declaring that "there is no defense or coverage owed to [DRP] or [Shell] for any of the claims made against them in either of the [u]nderlying [a]ctions." Among the attachments to Island's motion were a copy of a two-page accident report prepared by the Honolulu Police Department on November 25, 1993 and a copy of excerpts from the transcript of Nakamura's deposition conducted on May 25, 1995. The police report indicated that Nakamura had been driving his own vehicle and that Alvin Vierra, Jr. had been involved in the accident; the police report, however, provided no other relevant details. Nakamura's deposition, on the other hand, contained a number of details regarding the events resulting in the accident. Nakamura testified that, on the date of the accident, he was employed as a manager of a gasoline station owned by DRP. Although his regular work hours were 8:00 a.m. to 4:30 p.m., Monday through Friday, Nakamura remained on call after hours for problems that his night staff could not solve. He testified, however, that he had rarely been called because of any such emergencies. On the evening of the accident, November 24, 1993, Nakamura left work at 4:30 p.m. and returned home. He contacted several friends, and, together, they decided that they "just wanted to go out." Because it was raining, the group "ended up" back at the gasoline station. Prior to arriving at the station, Nakamura and his friends had been consuming beer, and they continued to do so while gathered at the station. Nakamura had never before hosted a gathering of friends at the station or consumed alcohol on the premises. Nakamura was not certain whether a written policy regarding the consumption of alcohol on the premises of the station had been adopted, but "[i]t was just a known thing that it was never allowed on the premises." Nakamura was aware that the foregoing rule applied to him. To his knowledge, his father, a part-owner of DRP, was unaware that Nakamura had been drinking at the station. Nakamura further conceded that his gathering on the evening of November 24, 1993 was "not authorized" by DRP or Shell. At approximately 3:00 a.m. on November 25, 1993, the group disbanded, and Nakamura drove away from the station in his own truck. He drove a friend home and was on his way to his own home when a collision occurred. Nakamura testified that he was unable to remember the details of the collision itself. On July 10, 1996, DRP filed a motion for partial summary judgment, alleging, as a matter of law, that it was entitled to a declaratory judgment that Island was obligated to defend DRP and to reimburse it and Shell for attorneys' fees and costs already incurred in defending against the underlying lawsuits.[4] DRP argued that Island owed a duty to defend pursuant to three of the four policies: the commercial general liability policy, the commercial garage liability policy, and the commercial umbrella insurance policy. Shell filed a joinder in DRP's motion on September 3, 1996. On the same date, Island filed a *104 memorandum in opposition to DRP's motion for partial summary judgment, to which it attached, inter alia, an affidavit by James S. Araki, a claims representative employed by Island. Araki averred that he was the claims representative "handling the claim ... involving [DRP] regarding a motor vehicle accident occurring on or about November 25, 1993[.]" He further averred that, "[a]s part of [the] investigation, [Araki] and others spoke with and obtained information from various persons," including Nakamura, representatives of Nakamura's automobile insurance carrier, a representative from Shell, Nakamura's father, and "Eric Yamagata of Dairy Road Shell." Based on the investigation, Island Insurance obtained the following information: a. Garth Nakamura was an employee of Dairy Road Shell. b. Garth Nakamura was drinking alcohol on the premises of Dairy Road Shell from approximately 8:00 p.m. the evening before the accident, until 2:30 a.m. on the date of the accident. c. Garth Nakamura was drinking with his friends, none of whom were employees of Dairy Road Shell. d. The drinking event was not a company sponsored activity. e. Mr. Glenn Nakamura, Garth Nakamura's father and a partner at [DRP], was not aware of the drinking of alcohol on the premises of Dairy Road Shell, referred to hereinabove. f. Garth Nakamura was not working at the time of the accident. g. Just before the subject accident, when Garth Nakamura left the Dairy Road Shell, he did so in his personal vehicle. h. At the time of the subject accident, Garth Nakamura was operating his personal vehicle for a personal purpose. Araki concluded that "no coverage was owed under certain policies of commercial, business and garage insurance issued by Island Insurance to [DRP] and, therefore, Island referred the matter to Roy F. Hughes, Attorney at Law, A Law Corporation, for a legal evaluation on the matter of coverage under the policies." Araki's affidavit did not reveal the dates on which Island ascertained any of the foregoing facts or events regarding the case. Following a hearing conducted on September 6, 1996, the circuit court filed two substantially identical orders. On October 10, 1996, the circuit court filed an order granting in part and denying in part Island's motion for summary judgment, ruling as follows: 1. The Motion is granted as to the Business Automobile Insurance Policy on the basis that the involved vehicle was not listed in the policy as a covered auto. 2. The Motion is denied as to the Commercial Garage Liability Policy on the basis that there is a genuine issue of material fact as to whether Garth Nakamura's actions were operations necessary or incidental to the garage business. 3. The Motion is granted as to the Commercial General Liability Policy on the basis that Exclusion 2(g) applies, and where the involved vehicle was owned and operated by Garth Nakamura, assuming arguendo that he was an "insured" under the policy (as an employee acting within the scope of his employment). 4. The Motion is denied as to the Commercial Umbrella Insurance Policy only as it applies to commercial garage liability on the basis that there is a genuine issue of material fact as to whether Garth Nakamura's actions were operations necessary or incidental to a garage business. On October 17, 1996, in an order denominated "Order Granting In Part And Denying In Part Plaintiff Dairy Road Partners dba Dairy Road Shell's Motion For Partial Summary Judgment Filed July 10, 1996," the circuit court ruled as follows: 1. The Motion is denied as to the Business Automobile Insurance Policy on the basis that the involved vehicle was not listed in the policy as a covered auto. 2. The Motion is granted as to the Commercial Garage Liability Policy on the basis that there is a genuine issue of material fact as to whether Garth Nakamura's *105 actions were operations necessary or incidental to the garage business. 3. The Motion is denied as to the Commercial General Liability Policy on the basis that Exclusion 2(g) applies, and where the involved vehicle was owned and operated by Garth Nakamura, assuming arguendo that he was an "insured" under the policy (as an employee acting within the scope of his employment). 4. The Motion is granted as to the Commercial Umbrella Insurance Policy only as it applies to commercial garage liability on the basis that there is a genuine issue of material fact as to whether Garth Nakamura's actions were operations necessary or incidental to a garage business. (Emphases added.) The language highlighted above constitutes the only differences between the language of the circuit court's October 10 and October 16 orders.[5] On October 23 and 28, 1996, DRP filed two motions for reconsideration or, in the alternative, to alter or amend both of the circuit court's orders concerning the parties' motions for summary judgment. As noted supra in section I.B.2, DRP attached, inter alia, to its motions copies of "ITEM TWO of the declarations" contained in the business auto policy. In addition, on October 29, 1996, DRP filed an affidavit of Roger Yamagata, DRP's insurance agent. Yamagata averred in relevant part that ... [t]o ensure that all vehicles used in connection with the business operations was [sic] a covered auto under the policy for bodily injury and property damage liability protection, [DRP] purchased additional coverage for "Hired Autos" and employer's "Non Owned Autos". ... [DRP] paid additional premiums for the extended coverage as evidenced by the Renewal Certificate and Declaration page.... DRP argued that, based on the "new evidence" of "ITEM TWO of the declarations" page, the circuit court should reconsider its ruling with respect to the business auto policy. DRP further argued that a possibility of coverage would remain under the commercial general liability policy even "if the jury finds that Garth Nakamura was not acting within the course and scope of his employment." (Bold face emphasis in original.) On October 30, 1996, Shell filed a joinder in DRP's motions for reconsideration. The circuit court denied both of DRP's motions by orders filed on December 11, 1996. On December 2, 1997, Island filed a motion for certification pursuant to HRCP Rule 54(b) (1996).[6] The circuit court granted Island's motion by an order filed on January 20, 1998 and filed a "Rule 54(b) Final Judgment" on February 24, 1998, entering judgment "in favor of Island ... and against [DRP] and Shell, that Island is not obligated to defend and/or to indemnify its insureds under the business automobile insurance policy and the commercial general liability policy" and "in favor of [DRP] and Shell and against Island, that Island is obligated to defend its insureds under the commercial garage liability policy and commercial umbrella insurance policy."[7] Both parties filed timely appeals. *106 II. STANDARD OF REVIEW We review [a] circuit court's [grant or denial] of summary judgment de novo under the same standard applied by the circuit court. Amfac, Inc.[v. Waikiki Beachcomber Inv. Co., 74 Haw. 85,] 104, 839 P.2d [10,] 22, [reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992)] (citation omitted). As we have often articulated: [s]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. (citations and internal quotation marks omitted); see ... HRCP ... Rule 56(c) (1990). Bronster v. United Public Workers, 90 Hawai`i 9, 13, 975 P.2d 766, 770 (1999) (quoting Roxas v. Marcos, 89 Hawai`i 91, 116, 969 P.2d 1209, 1234 (1998) (quoting Estate of Doe v. Paul Revere Ins. Group, 86 Hawai`i 262, 269-70, 948 P.2d 1103, 1110-11 (1997) (quoting Morinoue v. Roy, 86 Hawai`i 76, 80, 947 P.2d 944, 948 (1997))) (some brackets added and some in original)). "A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61, 647 P.2d 713, 716 (1982) (citations omitted). Konno v. County of Hawai`i, 85 Hawai`i 61, 70, 937 P.2d 397, 406 (1997) (quoting Dunlea v. Dappen, 83 Hawai`i 28, 36, 924 P.2d 196, 204 (1996)).... "The evidence must be viewed in the light most favorable to the non-moving party." State ex rel. Bronster v. Yoshina, 84 Hawai`i 179, 186, 932 P.2d 316, 323 (1997) (citing Maguire v. Hilton Hotels Corp., 79 Hawai`i 110, 112, 899 P.2d 393, 395 (1995)). In other words, "we must view all of the evidence and the inferences drawn therefrom in the light most favorable to [the party opposing the motion]." Maguire, 79 Hawai`i at 112, 899 P.2d at 395 (citation omitted). Estate of Doe, 86 Hawai`i at 270, 948 P.2d at 1111 (quoting Morinoue, 86 Hawai`i at 80, 947 P.2d at 948). III. DISCUSSION A. General Legal Principles Concerning The Interpretation Of Insurance Policies And The Parties' Burdens Of Proof Before addressing the parties' arguments with regard to the individual policies, we note a few general principles of law that will guide us in dealing with each of the policies at issue in the present case. 1. Interpretation of insurance policies We begin our analysis with the observation that "`insurers have the same rights as individuals to limit their liability[] and to impose whatever conditions they please on their obligation, provided they are not in contravention of statutory inhibitions or public policy.'" First Ins. Co. of Hawai`i, Inc. v. State, 66 Haw. 413, 423, 665 P.2d 648, 655 (1983) (quoting 6B Appleman, Insurance Law and Practice § 4255, at 40 (1979)).... As such, "[insurance] policies are subject to the general rules of contract construction; the terms of the policy should be interpreted according to their plain, ordinary, and accepted sense in common speech unless it appears from the policy that a different meaning is intended[.]" Id. at 423-24, 665 P.2d at 655 (citations omitted). Moreover, "[every] insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy[.]" [Hawai`i Revised Statutes] [(]HRS[)] § 431:10-237 [(1993)]; see State Farm Mut. Auto. Ins. Co. v. Fermahin, 73 Haw. 552, 556, 836 P.2d 1074, 1077 (1992); Smith v. New England Mutual Life Ins. Co., 72 Haw. 531, 534, 827 P.2d 635, 636 (1992). Nevertheless, adherence to the plain language and literal meaning of insurance contract provisions is not without limitation. We have acknowledged that "[b]ecause insurance policies are contracts of adhesion and are premised on standard forms prepared by the insurer's attorneys, we have long subscribed to the principle *107 that they must be construed liberally in favor of the insured and [any] ambiguities [must be] resolved against the insurer." Sturla, Inc. v. Fireman's Fund Ins. Co., 67 Haw. 203, 209, 684 P.2d 960, 964 (1984) (citations and internal quotation marks omitted) (cited with approval in Fermahin, 73 Haw. at 556, 836 P.2d at 1077). "Put another way, the rule is that policies are to be construed in accord with the reasonable expectations of a layperson." Id. . . . Estate of Doe, 86 Hawai`i at 271, 948 P.2d at 1112 (quoting Dawes v. First Ins. Co. of Hawai`i, Ltd., 77 Hawai`i 117, 121-22, 883 P.2d 38, 42-43, reconsideration denied, 77 Hawai`i 489, 889 P.2d 66 (1994)) (some brackets and ellipsis points added and some in original). 2. The parties' burdens of proof As movants for summary judgment, both Island and DRP bore the burden of showing, regarding their respective motions, (1) that there was no genuine issue of material fact and (2) that the movant was entitled to judgment as a matter of law. See supra section II.A. In defending against the opposing party's motion, neither party could "rest upon the mere allegations or denials of his pleading, but his response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." HRCP Rule 56(e). See also K.M. Young & Associates v. McClean Ranch Properties, Inc., 4 Haw.App. 657, 664, 675 P.2d 793, 799 (1983). The present case concerns the extent of Island's duties to defend and indemnify DRP pursuant to the four insurance policies. "It is well settled that the duty to provide coverage [i.e., the duty to indemnify,] and the duty to defend on the part of an insurer are separate and distinct." Sentinel Ins. Co., Ltd. v. First Ins. of Hawai`i, Ltd., 76 Hawai`i 277, 291, 875 P.2d 894, 908 (1994) (citations omitted). Moreover, the parties' respective burdens of proof with respect to the duties to indemnify and to defend are also distinct. With respect to Island's prayer for a declaration that it has no duty to defend DRP and Shell pursuant to the policies, Island's already heavy burden of proof as a movant for summary judgment was significantly augmented. Cf. Morinoue, 86 Hawai`i at 81, 947 P.2d at 949 (noting, with respect to a motion for summary judgment by a claimant of real property, who was asserting title through adverse possession, that "the already formidable preconditions to prevailing on a motion for summary judgment combine with the similarly demanding requisites of a prima facie case of adverse possession in such a manner as to render the [movant's] initial burden particularly heavy"). "[T]he obligation to defend ... is broader than the duty to pay claims and arises wherever there is the mere potential for coverage." Commerce [& Indus. Ins. Co. v. Bank of Hawai`i, 73 Haw. 322,] 326, 832 P.2d [733,] 735, [reconsideration denied, 73 Haw. 625, 834 P.2d 1315 (1992)] (emphasis added) (citations omitted). In other words, the duty to defend "`rests primarily on the possibility that coverage exists. This possibility may be remote but if it exists[,] the [insurer] owes the insured a defense.'" Standard Oil Co. of California v. Hawaiian Ins. & Guar. Co., Ltd., 65 Haw. 521, 527, 654 P.2d 1345, 1349 (1982) (quoting Spruill Motors, Inc. v. Universal Under. Ins. Co., 212 Kan. 681, 686, 512 P.2d 403, 407 (1973)) (emphasis added). "All doubts as to whether a duty to defend exists are resolved against the insurer and in favor of the insured[.]" Trizec Properties, Inc. v. Biltmore Constr. Co., 767 F.2d 810, 812 (11th Cir.1985) (citing 7C Appleman, Insurance Law & Practice, 99-100 (Berdal ed.1979)). Sentinel Ins. Co., 76 Hawai`i at 287, 875 P.2d at 904 (brackets in original). See also Hawaiian Holiday Macadamia Nut Co., Inc. v. Industrial Indem. Co., 76 Hawai`i 166, 169, 872 P.2d 230, 233 (1994). Accordingly, in connection with the issue of its duty to defend, Island bore the burden of proving that there was no genuine issue of material fact with respect to whether a possibility existed that DRP would incur liability for a claim covered by the policies. In other words, Island was required to prove that it would be impossible for the Vierras or Wolken-Vierra to prevail against DRP in the underlying *108 lawsuits on a claim covered by the policies. Conversely, DRP's burden with respect to its motion for summary judgment was comparatively light, because it had merely to prove that a possibility of coverage existed. See Montrose Chemical Corp. of California v. Superior Court, 6 Cal.4th 287, 24 Cal.Rptr.2d 467, 475, 861 P.2d 1153 (1993) (holding that "the insured need only show that the underlying claim may fall within policy coverage; the insurer must prove it cannot" (emphasis in original), and explaining that "[a]ny seeming disparity in the respective burdens merely reflects the substantive law"). With respect to Island's prayer for a declaration that it had no duty to indemnify DRP and Shell pursuant to the policies, Island was not required to disprove any possibility that its insured might be liable for a claim asserted in the underlying lawsuits. Rather, without reference to what the eventual outcome of the underlying lawsuits might actually be,[8] Island was required only to establish the absence of a genuine issue of material fact regarding the question of coverage pursuant to the plain language of the insurance policies and the consequent entitlement to the entry of judgment as a matter of law. Cf. Sentinel Ins. Co., 76 Hawai`i at 287, 875 P.2d at 904 (noting that insurer would be subject to duty to indemnify insured only if, pursuant to plain language of insurance policy, insured could become "legally obligated to pay" damages under circumstances falling within sphere of policy's coverage); Cole v. East Hartford Estates Limited Partnership, 1996 WL 292135 *2 (Conn.Super.Ct. May 15, 1996) ("A duty of indemnity is owed to the insured for any loss or injury which comes within the coverage provisions of the policy, provided it is not removed from coverage by a policy exclusion. The existence of such a duty depends upon the true state of facts surrounding the loss or injury.... The duty to defend, by contrast, does not depend on whether the injured party will prevail against the insured[.]"). With the foregoing principles in mind, we turn to the construction of the individual policies in light of the record before us. For purposes of analytical clarity, we begin with a consideration of the commercial garage liability policy. B. DRP Was Entitled to Summary Judgment With Respect To Island's Duty To Defend DRP As Of The Time Of Tender Of Defense Pursuant To The Commercial Garage Liability Policy; However, Island Was Entitled To Summary Judgment With Respect To Its Duty To Indemnify. 1. DRP was entitled to summary judgment with respect to Island's duty to defend DRP as of the time of tender of defense pursuant to the commercial garage liability policy because a possibility of coverage existed. "`The nature of the ... duty [to defend] ... is purely contractual and depends, in the first instance, on the language of the particular policy involved.'" Hawaiian Ins. & Guar. Co., Ltd. v. Brooks, 67 Haw. 285, 289, 686 P.2d 23, 26 (1984) (quoting Ritter v. United States Fidelity & Guar. Co., 573 F.2d 539, 542 (8th Cir.1978)). Island contracted to defend DRP against "any suit asking for" damages arising out of an accident incident to "garage operations," but its commercial garage liability policy excluded "suits for bodily injury or property damage not covered by this policy." Island argues that the exclusion applies to the underlying lawsuits against DRP because the facts averred in Araki's affidavit and reflected in Nakamura's deposition conclusively established that Nakamura had not been using his vehicle in furtherance of any "garage business." As Island appears to concede, its duty to defend must be determined, at least initially, as of the time of DRP's tender of its defense in the underlying lawsuits. See Sentinel, 76 Hawai`i at 288, 875 P.2d at 905 (noting that "whether an insurer's refusal to defend was justified must be answered in light of the information available to the insurer at the time it made the refusal" (citing *109 Hawaiian Ins. & Guar. Co., Ltd. v. Blanco, 72 Haw. 9, 17, 804 P.2d 876, 880 (1990))); Commerce & Indus. Ins. Co., 73 Haw. at 327, 832 P.2d at 736 (holding that the duty to defend "`is determined at the time suit is brought and not at the conclusion of litigation'" (quoting First Ins. Co. of Hawaii, Inc. v. State, 66 Haw. 413, 420, 665 P.2d 648, 653 (1983))). Island does not dispute that the complaints in both of the underlying lawsuits allege claims that, if proven, would be covered by the policy. However, relying on this court's opinion in Standard Oil, Island argues that it was "required to look beyond the [c]omplaint[s] and other pleadings to consider any facts brought to its attention with respect to whether a duty to defend actually exists." (Emphasis added.) Island's claim that it was "required" to investigate "beyond" the complaints is somewhat disingenuous. In Standard Oil, this court addressed an insurer's contention that its insured had waived the insurer's duty to defend by failing to provide timely notice of a claim covered by the policy. 65 Haw. at 522, 654 P.2d at 1346. The case arose out of an airplane crash that appeared to have been caused by "contaminants to the fuel strainer of the left engine. The tanks feeding the engine had been fueled from an aviation refueler truck covered by a liability insurance policy issued by [the insurer] on behalf of [the defendants in the underlying lawsuit]." Id. The estates of the victims of the crash sued, alleging in relevant part that the defendants had been negligent "in servicing, maintaining and repairing the subject aircraft, and in failing to detect and remove blockages and obstruction to the flow of fuel into the engines...." Id. at 526, 654 P.2d at 1348-49 (emphases in original) (internal quotation signals omitted). This court held that the defendants in the underlying lawsuit had forwarded the complaint to the insurer in a timely matter and determined that the complaint, by its allegations, should have alerted [the insurer] to the possibility that the refueler truck which was covered by its policy might have been involved. The vehicle was clearly listed in the insurance contract as a gas tank truck used by [one of the defendants] in its aviation-connected activities which, of course, included the refueling of aircrafts. Contrary to [the insurer's] contentions, the pleadings did not have to specifically mention the refueler truck or establish that the refueler truck was the cause of the accident. Id. at 526-27, 654 P.2d at 1349. In this connection, this court held that the insureds in Standard Oil "had the right to expect that their insurance company would make a determined effort to ascertain[,] not only from the pleadings[,] but also from the insurer's own independent investigation[,] whether the insured[s were] entitled to defense representation under the policy." 65 Haw. at 527, 654 P.2d at 1349 (emphasis added). In other words, although the complaint did not expressly allude to or otherwise identify the refueler truck that was covered by the insurance policy, for purposes of determining whether the insurer was properly placed on notice of a covered claim, the insurer was charged with discovering that the insured refueler truck was implicated by the complaint. In that context, this court further observed that [a]n insurer must look beyond the effect of the pleadings and must consider any facts brought to its attention or any facts which it could reasonably discover in determining whether it has a duty to defend.... [T]he duty to defend rests primarily on the possibility that coverage exists. This possibility may be remote, but[,] if it exists[,] the company owes the insured a defense. The possibility of coverage must be determined by a good-faith analysis of all information known to the insured or all information reasonably ascertainable by inquiry and investigation. Id. (quoting Spruill Motors, Inc., 512 P.2d at 407) (some brackets added and some in original). Accordingly, Standard Oil stands for the proposition that, where the insured tenders his or her defense in a lawsuit in which the complaint does not clearly and unambiguously assert a covered claim, the insurer, as a precondition to refusing the tender on the ground that there is no possibility of coverage, must nevertheless conduct a reasonable *110 investigation to ensure that the facts of the case do not obligate it to defend the insured.[9] In the present case, the underlying complaints are unambiguous as to the potential for coverage pursuant to the commercial garage liability policy. Both complaints allege that Nakamura was acting within the scope of his employment when he negligently struck Vierra with his vehicle. Both also state claims of negligence against DRP based upon Nakamura's drinking on the premises of the gasoline station. Accordingly, both complaints alleged that Vierra suffered bodily injury arising from an accident connected with "garage operations." Thus, there was no need for Island to look further than the allegations of the complaints in the underlying lawsuits to trigger its duty to defend. The more pertinent question is whether, for the purposes of overcoming the duty to defend, Island was permitted to conduct a factual investigation despite the allegations of the underlying complaints. In this connection, Island points to this court's opinions in Brooks and Blanco and the Intermediate Court of Appeals's (ICA) opinion in Bayudan v. Tradewind Ins. Co., Ltd., 87 Hawai`i 379, 957 P.2d 1061 (App.1998). In Bayudan, the ICA observed in dictum[10] that, "[i]n two cases decided after Standard Oil, [i.e., Brooks and Blanco,] the supreme court apparently allowed insurers to look to facts gleaned from sources other than the pleadings as a basis for refusing to defend." 87 Hawai`i at 384, 957 P.2d at 1066. In Brooks, the insured[11] was driving his pickup truck when he allegedly encountered the plaintiff in the underlying lawsuit, who was walking along the highway. 67 Haw. at 286, 686 P.2d at 24. The insured offered her a ride. Id. After she climbed into the back of the truck, the plaintiff in the underlying lawsuit was "assaulted, battered, and raped" by the insured's passenger. Id. In her complaint, the plaintiff alleged that the insured had been negligent in failing to restrain his passenger or aid the plaintiff. Id. at 287, 686 P.2d at 25. The insurer filed a complaint in the circuit court praying for a declaration that, pursuant to a policy provision excluding intentional acts, it had no duty to defend or indemnify the insured. On appeal, this court held that the facts of the case indicated that the insured's act was "anything but accidental" and that the insurer was entitled to rely on the exclusionary provision. Id. at 292, 686 P.2d at 27-28. In so holding, this court invoked an affidavit, filed in the declaratory judgment action, in which the insured averred that "he was the driver of the vehicle in which the rape occurred. He further acknowledged he `could see the incident taking place in the back of the truck.'" Id. at 292, 686 P.2d at *111 28. The Brooks court neither cited any authority nor articulated any rationale explaining its resort to evidence extrinsic to the insurance policy and the complaint in arriving at its ultimate conclusion regarding the duty to defend. In Blanco, the named insured under a homeowner's policy tendered his defense to his insurer in connection with a lawsuit alleging that he had fired a rifle in the direction of his neighbor, injuring the neighbor and causing the neighbor's wife serious mental and emotional distress. 72 Haw. at 11-12, 804 P.2d at 877-878. The insured was charged criminally in connection with the incident and eventually pled no contest to a charge of attempted assault in the first degree. Id. at 12, 804 P.2d at 878. Subsequently, the neighbor and his wife filed a complaint alleging that the insured had acted intentionally or, in the alternative, negligently in causing their claimed injuries. Id. at 12, 804 P.2d at 878. As in Brooks, the insured's policy contained an exclusion for intentional acts. Id. at 11-12, 804 P.2d at 878. After the insurer refused the insured's tender of defense, the insured responded, through his counsel, that, inter alia, "[the insured] did not intend to [shoot] [his neighbor] but shot away from [him] and there must have been a ricochet if [his neighbor] was hit at all." Id. at 13, 804 P.2d at 879. Subsequently, in the underlying personal injury lawsuit, the insured and his neighbors entered into a stipulation, which stated in relevant part that, ... [o]n or about May 6, 1987, [the insured] failed to act with due care towards [his neighbor] by discharging his loaded rifle four (4) times from a distance of about 25 feet, and thus, did negligently injure and harm [his neighbor]. Each bullet struck objects located fifteen (15) feet from where [his neighbor] was standing. As a direct and proximate result of the several shots fired, one of the bullets struck an object which in turn struck [the insured's neighbor] in his right leg, causing bodily injury to [the neighbor]. ... [The insured] did not intend to injure [his neighbor] but only wanted to scare him. ... Such injuries were caused without any intentional act, negligence, or provocation on the part of [the neighbors].... ... During the incident above described, [the insured's neighbor's wife and other witnesses] were lawfully standing a few feet away from [the insured] on their residence property while [the insured] was negligently discharging his loaded rifle, and did witness said shooting. ... [The insured] negligently failed to act with due care with respect to [his neighbor's wife,] and[,] thus, negligently inflicted serious emotional and psychological trauma and distress upon [her]. Id. at 14, 804 P.2d at 879. After an arbitrator entered an award in favor of the insured's neighbors, the neighbors applied to the insurer for compensation. Id. at 14-15, 804 P.2d at 879. The insurer brought a declaratory action in the circuit court to clarify its duties pursuant to the policy. Id. at 12-15, 804 P.2d at 878-79. On appeal, after citing to Standard Oil, the Blanco court examined the information available to the insurer both at the time the defense was tendered and at the time it was refused. In addition to the complaint in the underlying lawsuit, the Blanco court noted that the insurer "had available to it the fact of [the insured's] no contest plea to attempted assault in the first degree, a willful and/or intentional crime." Id. at 17, 804 P.2d at 880. However, "a plea of no contest, by the weight of authority, cannot be used against the person making it as an admission in any civil suit for the same act." Id. at 17, 804 P.2d at 880 (citation omitted). Moreover, the Blanco court noted that, although "the fact of [the insured's] conviction would be evidence ... of his commission of the crime in question in a civil action," id. (citing Asato v. Furtado, 52 Haw. 284, 474 P.2d 288 (1970)), because it could not be considered "conclusive evidence," the insurer "could not rely solely on the conviction in refusing to defend." Id. The Blanco court also observed that the insurer "had available the extensive police report[,] which clearly indicated an intentional firing of the rifle" based on the insured's own statements to the police, as well as the *112 insured's representations to the insurer through counsel, which this court interpreted as an assertion that the insured's "intent in firing the rifle was only to scare [his neighbor]." Id. at 17-18, 804 P.2d at 880. Based on the foregoing information, this court held that "we do not see how it logically can be said that ... the injury to [the neighbor] was the result of an accident. Given the best possible interpretation, [the insured] fired the rifle in [his neighbor's] direction intending to frighten him." Id. at 18, 804 P.2d at 881. Likewise, with respect to the insured's neighbor's wife, the Blanco court relied upon the "undisputed evidence in the record" to hold that the insured should have expected to be witnessed while shooting at his neighbor. Id. at 19, 804 P.2d at 881 (emphasis added). This court's primary purpose in Brooks and Blanco was to ensure that plaintiffs could not, through artful pleading, bootstrap the availability of insurance coverage under an insured defendant's policy by purporting to state a claim for negligence based on facts that, in reality, reflected manifestly intentional, rather than negligent, conduct. See also Bayudan, 87 Hawai`i at 387, 957 P.2d at 1069. With respect to the facts as alleged within the four corners of a complaint, we do not disturb the Brooks/Blanco analysis. In other words, when the facts alleged in the underlying complaint unambiguously exclude the possibility of coverage, conclusory assertions contained in the complaint regarding the legal significance of those facts (such as that the facts as alleged demonstrate "negligent" rather than "intentional" conduct) are insufficient to trigger the insurer's duty to defend. See supra note 9. However, the ancillary rule that the Bayudan court reasonably derived from this court's analysis in Blanco and Brooks—i.e., that insurers may generally overcome their duty to defend by relying on "factual" sources beyond the pleadings—has consequences that this court did not anticipate. One consequence of the Bayudan corollary to the Brooks/Blanco analysis is that the insured may be saddled with the Procrustean dilemma of being forced to adduce facts proving his or her own liability in the underlying lawsuit in order to satisfy the insurer that there may be merit to the underlying covered claim. In the present matter, for example, DRP must admit liability and prove that Nakamura was acting within the scope of his employment on the night in question— perhaps traveling "on call"—in order to demonstrate to Island that coverage pursuant to the commercial garage liability policy is triggered. We do not believe that DRP could reasonably have anticipated such a self-defeating burden when it purchased the policies at issue in the present case. Cf. North Pacific Ins. Co. v. Wilson's Distrib. Service, Inc., 138 Or.App. 166, 908 P.2d 827, 832 (1995) (holding that an insurer's prayer for a declaratory action that it need not indemnify its insured should be stayed pending the resolution of the underlying lawsuit because such premature litigation "put[s] the [insureds] in the conflictive position of being required to abandon their denial of liability in [the underlying] action in order to come within the exception of the policy exclusion ... [and][a]n insurer may not put its insured in that position.") Additionally, the Bayudan corollary raises the potential for inconsistent judgments. A circuit court presiding over a declaratory judgment action might rule, based on an insurer's superior production of evidence concerning material facts that will be directly in dispute in the underlying lawsuit, that there is no possibility of coverage. Subsequently, the trier of fact in the underlying lawsuit, not bound by the ruling in the declaratory judgment action (the latter having no preclusive effect upon a non-party putative plaintiff), and perhaps relying upon different evidence adduced by the injured plaintiff, might find that the insured is liable on a claim covered by the policy. Such a result would be fundamentally unfair to the insured, inasmuch as, in retrospect, there must have been a possibility of coverage if, in fact, it is so adjudicated in the underlying lawsuit. Inasmuch as the circuit court would already have ruled that there was no possibility of coverage, and therefore no duty to defend, the insured would be barred by res judicata from recovering post-trial attorney's fees and costs from the insurer. *113 We note that there is a split of authority among other jurisdictions on the issue of an insurer's use of extrinsic evidence to disclaim its duty to defend, despite the presence of allegations set forth in the complaint, which, if true, establish the possibility of coverage. Some courts allow insurers freely to rely upon any competent evidence in favor of their positions. See, e.g., Winnacunnet Cooperative School Dist. v. National Union Fire Ins. Co. of Pittsburgh, 84 F.3d 32, 35-36 (1st Cir.1996) (applying New Hampshire law); Tschimperle v. Aetna Cas. & Sur. Co., 529 N.W.2d 421, 424 (Minn.Ct.App.1995); Pennsylvania Millers Mut. Ins. Co. v. Rigo, 256 A.D.2d 769, 681 N.Y.S.2d 414, 415 (N.Y.App.Div.1998). It appears, however, that the majority of jurisdictions addressing the issue forbid insurers from relying upon extrinsic evidence for the purpose of disclaiming the duty to defend. See, e.g., State Dep't of Transp. and Pub. Facilities v. State Farm Fire and Cas. Co., 939 P.2d 788, 792 n. 1 (Alaska 1997); Penn-America Ins. Co. v. Disabled American Veterans, Inc., 224 Ga. App. 557, 481 S.E.2d 850, 852 (1997); Penney v. Capitol City Transfer, Inc., 707 A.2d 387, 389 (Me.1998); Scopel v. Donegal Mut. Ins. Co., 698 A.2d 602, 605 (Pa.Super.Ct.1997); Atlantic Mut. Ins. Co. v. Badger Med. Supply Co., 191 Wis.2d 229, 528 N.W.2d 486, 491 (Ct.App.1995); see also 7C John Alan Appleman, Insurance Law and Practice § 4684 (1979) (noting that, "in general, the courts state that the duty to defend is separate from the duty to make a claim payment and that the insurer's initial obligation is determined by the allegations in the complaint, and not on other information in its possession"); 1 Rowland H. Long, The Law of Liability Insurance § 5.02(2)(ii) (1998) (noting that "the courts generally have held that the duty to defend cannot be negated by extrinsic facts known to the insurer"); 14 George J. Couch, Couch Cyclopedia of Insurance Law § 51:51 (Mark S. Rhodes, ed., 2d ed.1982) (noting the split of authority).[12] A limited exception to the majority rule described above has been recognized by several jurisdictions, which allow an insurer to rely upon extrinsic facts to disclaim liability only when the relevant facts "will not be resolved by the trial of the third party's suit against the insured." Hartford Accident & Indem. Co. v. Aetna Life & Cas. Ins. Co., 98 N.J. 18, 483 A.2d 402, 406 (1984). See also Millers Mut. Ins. Ass'n of Illinois v. Ainsworth Seed Co., Inc., 194 Ill.App.3d 888, 141 Ill.Dec. 886, 552 N.E.2d 254, 256 (1990) ("[N]o consideration [can] be given to factual matters which might be relevant to issues in the underlying litigation." (Citation omitted.)). Although Brooks appears to allow insurers generally to rely upon extrinsic facts when attempting to disclaim their duty to defend in declaratory judgment actions, the circumstances of that case place it within the "limited exception" allowing for proof of factual matters not susceptible of resolution in the underlying litigation. In the declaratory *114 judgment action at issue in Brooks, the controverted factual matter was whether the insured's conduct had been "accidental" or "intentional." See Brooks, 67 Haw. at 290, 686 P.2d at 27. The plaintiff, in the underlying complaint, had stated a claim against the insured sounding solely in negligence. Id. at 287, 686 P.2d at 25. As discussed more fully below, the issue of the insured's "intent" was therefore not before the jury in the underlying lawsuit. It is well established that [t]he elements of a cause of action founded on negligence are: 1. A duty or obligation, recognized by the law, requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks; 2. A failure on the defendant's part to conform to the standard required: a breach of the duty; 3. A reasonably close causal connection between the conduct and the resulting injury[;] and 4. Actual loss or damage resulting to the interests of another. Tseu ex rel. Hobbs v. Jeyte, 88 Hawai`i 85, 91, 962 P.2d 344, 350 (1998) (quoting Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 385, 742 P.2d 377, 383 (1987) (citations and ellipsis points omitted) (some brackets added)). See also Takayama v. Kaiser Found. Hosp., 82 Hawai`i 486, 498, 923 P.2d 903, 915-16 (1996) (same). Inasmuch as the focus of the inquiry in a garden variety negligence action is the objective reasonableness of a defendant's conduct (i.e., whether the defendant conformed to a required standard of conduct) and the consequences of that conduct (i.e., whether the plaintiff suffered loss attributable to the defendant's conduct), the trier of fact is not called upon to determine the precise nature of the defendant's state of mind. See Booth v. Mary Carter Paint Co., 182 So.2d 292, 299 (Fla.Dist.Ct.App.1966) ("[N]egligence and intention have no necessary connection. Negligence is not dependant upon bad intention, nor is it necessarily negatived by good intention. When the legal rights of others are involved, the question of negligence vel non must stand on the facts themselves, uninfluenced by intention."); OMI Holdings, Inc. v. Howell, 260 Kan. 305, 918 P.2d 1274, 1294 (1996) (noting that "[i]ntent is irrelevant in the simple negligence analysis"); Doe v. Doe, 878 P.2d 1161, 1162 (Utah Ct.App.1994) ("An individual's acts can simultaneously give rise to a claim for negligence and a claim for an intentional tort. The two doctrines are not necessarily mutually exclusive, but rather may overlap and coexist on a continuum.... A finding of gross negligence does not preclude a finding of intent and a finding of willful misconduct does not preclude elements of negligence." (Citations and internal quotation signals omitted.)). We recognize that a number of jurisdictions have held that evidence of intentional conduct may not support a claim for negligence. See, e.g., American Nat'l Fire Ins. Co. v. Schuss, 221 Conn. 768, 607 A.2d 418, 422-23 (1992); Landry v. Leonard, 720 A.2d 907, 910-11 (Me.1998); Waters v. Blackshear, 412 Mass. 589, 591 N.E.2d 184, 185 (1992); Miller v. Kruetz, 643 S.W.2d 310, 313 (Mo.Ct. App.1982); Lail v. Woods, 36 N.C.App. 590, 244 S.E.2d 500, 502, review denied, 295 N.C. 550, 248 S.E.2d 727 (1978); Andres v. Perry, 81 A.D.2d 848, 438 N.Y.S.2d 852, 853 (N.Y.App.Div.), aff'd, 54 N.Y.2d 795, 443 N.Y.S.2d 610, 427 N.E.2d 769 (1981); Kasnick v. Cooke, 116 Or.App. 580, 842 P.2d 440, 441 (1992); Fulmer v. Rider, 635 S.W.2d 875, 881 (Tex.Ct.App.1982); Kobos ex rel. Kobos v. Everts, 768 P.2d 534, 538 (Wyo.1989). These decisions are grounded in the proposition that "the words `negligence' and `intentional' are contradictory," Miller, 643 S.W.2d at 313, inasmuch as negligence connotes carelessness, whereas intent connotes purposefulness. However, in this jurisdiction, we have never restricted claims sounding in negligence to unintentional or "careless" conduct. As described supra, a cause of action sounding in negligence will lie if the defendant breaches a duty owed to the plaintiff, thereby legally causing the plaintiff injury. So long as "such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other," Tabieros v. Clark Equipment Company, 85 Hawai`i 336, 353, 944 P.2d 1279, *115 1296 (1997) (citations and internal quotation signals omitted), i.e., so long as the defendant owes the plaintiff a duty, the thoughts passing through the defendant's mind as he or she breaches that duty are immaterial. In a tort action, the defendant's state of mind is relevant only when the plaintiff alleges that the defendant's conduct was intentionally tortious and/or the plaintiff is seeking to recover punitive—as opposed to merely compensatory—damages from the defendant. See, e.g., Dunlea v. Dappen, 83 Hawai`i 28, 38, 924 P.2d 196, 206 (1996) (describing the elements of the tort of intentional infliction of emotional distress); Masaki v. General Motors Corp., 71 Haw. 1, 7, 780 P.2d 566, 571 (1989) ("[T]o justify an award of punitive damages, a positive element of conscious wrongdoing is always required." (Citation and internal quotation marks omitted.)). A showing that the defendant's actions were intentional may allow the plaintiff to obtain punitive as well as compensatory damages. See Amfac, Inc., 74 Haw. at 138, 839 P.2d at 37 (holding that, for an award of punitive damages, "[t]he plaintiff must prove by clear and convincing evidence that the defendant has acted wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations, or where there has been some wilful misconduct or that entire want of care which would raise the presumption of conscious indifference to the consequences" (quoting Masaki, 71 Haw. at 16-17, 780 P.2d at 575 (citation omitted))). A plaintiff who fails to allege such wilful, wanton, malicious, or international conduct—notwithstanding that it may have occurred—and who, instead, merely alleges that the defendant breached a duty of care, waives the opportunity to recover punitive damages. In effect, such a plaintiff has "undercharged" his or her case against the defendant, just as a prosecutor may undercharge a criminal defendant and successfully convict him or her of an offense requiring a lesser state of mind than that demonstrated by the evidence of the case. See, e.g., State v. Holbron, 80 Hawai`i 27, 44, 904 P.2d 912, 929 (1995) ("Within constitutional limits, it is always the prosecution's prerogative to undercharge any offense for whatever reason it deems appropriate.... Thus, it is self-evident ... that the prosecution may charge an intentional or knowing homicide (murder) as a reckless homicide (manslaughter) if it wants to, just as it may charge an intentional or knowing infliction of serious bodily injury (assault in the first degree) as a reckless infliction of serious bodily injury (assault in the second degree)."); HRS § 702-208 (1993) (providing in relevant part that "[w]hen the law provides that negligence is sufficient to establish an element of an offense, that element also is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly"). The contrary rule, embraced by the jurisdictions cited above, leads to the absurdity of allowing the defendant to raise, as an exonerating defense to a claim of negligence, that he or she purposefully injured the plaintiff. In Schuss, for example, the defendant was alleged to have set fire to a synagogue. 607 A.2d at 419. After a jury verdict finding the defendant liable pursuant to a claim of negligence, the trial court granted the defendant's motion to set the verdict aside on the basis that the evidence established that the defendant had intentionally burned the building. Id. at 421. The Connecticut Supreme Court affirmed the trial court, quoting Professors Prosser and Keeton for the proposition that "[t]he distinction between intentional and unintentional invasions draws a bright line of separation among shadings of almost infinitely varied human experiences.... As [Justice Oliver Wendell] Holmes observed, even a dog knows the difference between being tripped over and being kicked." Id. at 422 (quoting W.P. Keeton, Prosser and Keeton on the Law of Torts § 8, at 33 (5th ed.1984) (hereinafter, Prosser)). While Justice Holmes's proverbial dog might have known the difference between a trip and kick, we believe that the dog would have been quite surprised to learn that a defendant could be exonerated by virtue of the latter mechanism of its injury but not the former. We find the following observation of the Missouri Supreme Court particularly apt: The same principle carried to its logical conclusion would lead to the result that every action for negligent wrong could be *116 defeated by a showing that there lurked inside the brain of the wrongdoer the secret intention to perpetrate the act. To avoid this[,] the common law permitted the injured party to waive the intent[] and rely upon the neglect. Evett v. Corbin, 305 S.W.2d 469, 472 (Mo. 1957) (citations omitted). As Professors Prosser and Keeton point out, in tort law, [t]here is a definite tendency to impose greater responsibility upon a defendant whose conduct was intended to do harm, or was morally wrong.... The defendant's interests have been accorded substantially less weight in opposition to the plaintiff's claim to protection when moral inequity is thrown into the balance. Apparently, the courts have more or less unconsciously worked out an irregular and poorly defined sliding scale by which the defendant's liability is least when the conduct is merely inadvertent, greater for acts in disregard of consequences increasingly likely to follow, greater still for intentionally invading the rights of another under a mistaken belief of committing no wrong, and greatest of all where the motive is a malevolent desire to do harm. Prosser, § 8, at 37 (footnotes omitted). It is illogical and inequitable to reward a defendant for morally reprehensible conduct. Therefore, we respectfully disagree with Schuss and the other decisions cited above. Accordingly, the question whether the insured in Brooks had acted "intentionally" was not at issue in the underlying lawsuit. Rather, the trier of fact had only to determine whether the insured owed a duty to the plaintiff to prevent her assault and rape and whether he had breached that duty by failing to intervene. Thus, it was proper, pursuant to the established exception to the majority rule, for this court to consider evidence regarding the insured's intent extrinsic to the allegations of the underlying complaint. In contrast to Brooks, the underlying complaints in Blanco and Bayudan had alleged claims for relief sounding in both negligence and intentional tort. See Blanco, 72 Haw. at 12, 804 P.2d at 878; Bayudan, 87 Hawai`i at 385-86, 957 P.2d at 1067-68. Thus, in the underlying cases, the potential existed for a judicial determination that the insured had not acted intentionally but had, nevertheless, breached a duty owing to the plaintiff, thereby legally causing injury. Inasmuch as the issue of the insured's intent was subject to resolution in the underlying lawsuits, the circumstances of Blanco and Bayudan fell outside the exception to the majority rule. It appears to us that the implications of Brooks and Blanco place those decisions in the camp of the jurisdictions that permit insurers to rely upon any evidence in support of their efforts to defeat the contractual duty to defend. However, we are convinced, as DRP argues, that the application of the Bayudan corollary to the Brooks/Blanco analysis is subversive of the general rule that the insurer must assume its duty to defend if there is a possibility of coverage and that the insured's reasonable expectation in contracting for the insurer's duty to defend would be unjustifiably frustrated. We are aware that, [a]lthough "the doctrine of stare decisis is subordinate to legal reasons and justice and we should not be unduly hesitant to overrule a former decision when to do so would bring about what is considered a manifest justice," Robinson v. Ariyoshi, 65 Haw. 641, 654 n. 10, 658 P.2d 287, 298 n. 10 (1982) (quoting McBryde Sugar Co. v. Robinson, 54 Haw. 174, 180, 504 P.2d 1330, 1335, aff'd on rehearing, 55 Haw. 260, 517 P.2d 26 (1973), appeal dismissed for want of jurisdiction and cert. denied, 417 U.S. 962, 94 S.Ct. 3164, 41 L.Ed.2d 1135 (1974)), "a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it." Johnston v. KFC Nat'l Management Co., 71 Haw. 229, 233, 788 P.2d 159, 161 (1990) (internal quotation signals and citation omitted). State v. Stocker, 90 Hawai`i 85, 95, 976 P.2d 399, 409 (1999). Nevertheless, we are inescapably led to the conclusion that, by misapplying our own holding in Standard Oil, this court took a wrong turn in Blanco and, at least by implication, in Brooks. In order to restore manifest justice as between insurers and insureds, *117 we therefore overrule Brooks and Blanco to the limited extent that they imply that an insurer may rely upon extrinsic facts that may be subject to dispute in the underlying lawsuit as a basis for disclaiming its duty to defend where the complaint in the underlying lawsuit alleges facts within coverage.[13] Instead, we adopt the majority rule to the contrary, along with its limited exception—that the insurer may only disclaim its duty to defend by showing that none of the facts upon which it relies might be resolved differently in the underlying lawsuit.[14]Cf. Commerce, 73 Haw. at 327, 832 P.2d at 736 (holding that "`[a]n insurer has a duty to proceed in defense of a suit, at least to the point of establishing that liability upon which plaintiff was relying was in fact not covered by the policy, and not merely that it might not be'" quoting 7C J. Appleman, Insurance Law and Practice § 4683.10 at 69 (Berdal ed.1979)); Sentinel, 76 Hawai`i at 289, 875 P.2d at 906 (holding that, "[i]n order for the potential for coverage under [the insurer's] policies to be considered non-existent, all of the operative assumptions made by [the insurer] would have to be correct" (emphases in original)). On the record before us, it was impossible for Island to show that the facts upon which it relied would be resolved identically in the underlying lawsuit. Facts that were uncontroverted at the time of tender might take new shape at a future trial or through additional discovery. For example, (1) Nakamura could testify that he was either "on call" or making a delivery on the night in question, or (2) one party could produce a witness to testify to facts establishing that Nakamura had been acting within the scope of his employment. The only evidence of the facts that were available to Island at the time DRP tendered its defense and Island refused the tender was the affidavit of Island's claims representative, James Araki.[15] Araki *118 no facts unrelated to the matters at issue in the underlying lawsuits that might serve as a basis for Island's disclaimer of its duty to defend. Instead, he averred facts indicating that Nakamura had acted (1) outside the scope of his employment and (2) without the tacit or express permission or encouragement of DRP. Because these alleged facts are inextricably linked to the plaintiffs' claims in the underlying lawsuits, they may be subject to dispute and must be resolved in those proceedings. Accordingly, inasmuch as the complaints alleged facts that would be covered under the commercial garage liability policy, Island owed a duty to defend DRP in the underlying lawsuits. Island points out that, subsequent to its refusal of DRP's tender of defense, it obtained Nakamura's deposition, in which he too testified to facts supporting Island's theory that he was not acting within the scope of his employment and that his employers did not negligently supervise him. As noted above, however, the duty to defend is determined as of the time of tender. Moreover, the substance of Nakamura's testimony was inextricably intertwined in the factual matters at issue in the underlying lawsuits and cannot, therefore, serve as a basis for disclaiming the duty to defend. Accordingly, we hold that DRP was entitled to partial summary judgment with respect to Island's duty to defend, inasmuch as Island was obligated to defend DRP pursuant to the commercial garage liability policy as of the time of tender. 2. Island was entitled to judgment with regard to its duty to indemnify DRP pursuant to the commercial garage liability policy. Although Island owed a duty to defend DRP as of the time of tender, it does not necessarily follow that Island is required to indemnify DRP. See State Farm Ins. Co. v. GTE Hawaiian Tel. Co., Inc., 81 Hawai`i 235, 242, 915 P.2d 1336, 1342 (1996) (noting that, in Sentinel Ins. Co., 76 Hawai`i at 295, 875 P.2d at 912, this court "rejected" the rule that "an insurer's breach of the duty to defend results in an irrebuttable presumption that the insurer is obligated to indemnify its insured"). As discussed supra in section III. A.2, with regard to the issue of indemnity, Island did not bear the onerous burden of disproving any possibility of coverage. Accordingly, with respect to the issue of indemnity, the circuit court was entitled to consider any competent evidence adduced in the cause of adjudicating DRP's complaint for declaratory relief, even if the evidence might be subject to dispute in the underlying lawsuits. Nakamura testified in his deposition that the accident occurred (1) some ten hours after the end of his work day, (2) while he was driving home, and (3) after having given a ride to a friend. On these particular facts, no plausible argument could be made that Nakamura was performing "garage operations" or "garage business" at the time of the accident. DRP offered no evidence to rebut Nakamura's account of the relevant events and, in fact, failed even to dispute it. As noted supra in section III.A.2, DRP was not entitled simply to rely on its pleadings in the face of evidence supporting Island's motion for summary judgment. Accordingly, although our task is to evaluate the evidence in the light most favorable to DRP, we are compelled to hold that no genuine issue of material fact remained and that Island was entitled to judgment as a matter of law. Although, as we held supra in section III. B.1, Island owed DRP a duty of defense as of the time the defense was tendered and refused, that duty cannot survive the effect of our holding in this section. See Liberty Mut. Ins. Co. v. Superior Court, 58 Cal.App.4th 617, 68 Cal.Rptr.2d 219, 223 (1997) ("An insurer's duty to defend continues only so long as the possibility of [a] duty to indemnify remains alive. Once that possibility is extinguished by court order, the duty to defend ceases."); cf. Commerce & Indus. Ins. Co., 73 Haw. at 326, 832 P.2d at 736 (holding that the insurer's duty to defend continues "until *119 it [can] confine the claim to a recovery that the policy did not cover") (quoting Lee v. Aetna Cas. & Sur. Co., 178 F.2d750 (2d Cir.1949)).[16] In other words, no "possibility" of coverage pursuant to the commercial garage liability policy will remain after the circuit court, on remand, enters its judgment, pursuant to this opinion, declaring that Island owes no duty to indemnify DRP in connection with the underlying lawsuits pursuant to the commercial garage liability policy. On the record before us, therefore, we hold that Island owed a duty to defend DRP beginning on February 6, 1995, the date of DRP's tender of its defense pursuant to the commercial garage liability policy, and ending on the date of the circuit court's entry of judgment on remand pursuant to this opinion. Because Island did not assume DRP's defense at the time of tender, it is responsible for DRP's reasonable costs, if any, associated with its defense in the underlaying lawsuits incurred during the above-described period of time. See Sentinel Ins. Co., 76 Hawai`i at 296, 875 P.2d at 913 (holding that "if [an insurer] loses its claim of no duty to defend, it will be obliged to reimburse the insured for all reasonable defense fees and costs properly incurred" (citation omitted)). C. Island Owes A Duty To Defend DRP Pursuant To The Business Auto Policy. The circuit court ruled that Island was not required to defend DRP pursuant to the business auto policy because "the involved vehicle was not listed in the policy as a covered auto." On appeal, DRP argues that, although Nakamura's truck was not expressly listed as a covered auto in the policy, several portions of the policy indicated that accidents involving the use of automobiles not owned by the insured were also "covered" for purposes of the policy. As noted supra in section I.B.1, Part IV(A)(1) of the policy provides that coverage is available in relevant part for "bodily injury... to which this insurance applies, caused by an accident and arising from the ownership, maintenance or use of a covered auto." (Emphasis in original.) Island does not appear to dispute that Vierra suffered "bodily injury" arising from an "accident." Accordingly, the only remaining issue is whether Nakamura's truck was a "covered auto." On its face, Part II of the policy indicates that the determination of which vehicles are "covered autos" is accomplished by reference to "ITEM TWO of the declarations." Island did not include that page of the policy in its memoranda in support of or opposition to the motions for summary judgment regarding the business auto policy. As DRP points out, several other portions of the policy refer (somewhat ambiguously) to coverage for "employer's non-owned" or "employer's nonownership."[17] However, without the benefit of "ITEM TWO of the declarations," the circuit court could not have definitively concluded, in the context of a motion for summary judgment, which vehicles constituted "covered autos" pursuant to the policy and which did not.[18] Based on the evidence before *120 the circuit court at the time of the motions for summary judgment, we hold that the circuit court erred in granting Island's motion with respect to its duty to defend. Island contends that "no coverage exists under the business auto policy because the vehicle was not used in connection with business operations."[19] Island's interpretation would modify the language in the body of the business auto policy by taking from the policy title the word "business" and inserting it in the coverage language. Thus, Island focuses on the title as limiting the available coverage. "The label attached to a policy is not determinative of the type and scope of coverage provided." Aks v. Southgate Trust Co., 844 F.Supp. 650, 656 (D.Kan.1994) (citing Burks v. Aldridge, 154 Kan. 731, 121 P.2d 276 (1942)); see also St. Paul Fire and Marine Ins. Co. v. Gilmore, 168 Ariz. 159, 812 P.2d 977, 983 (1991) (noting that "the type of policy is determined by the type of coverage provided, not by the label affixed by the insurer"); Selander v. Erie Ins. Group, 85 Ohio St.3d 541, 709 N.E.2d 1161, 1164-65 (1999) (same (citing Gilmore, 812 P.2d at 983)); Stanley v. Safeco Ins. Co. of America, 109 Wash.2d 738, 747 P.2d 1091, 1093 (1988) (noting that "[i]t has long been our rule that the caption should never of itself be taken to override the intention of the parties to an insurance policy as shown by the provisions and clauses inserted thereunder" (citations and internal quotation signals omitted)); Action Ads, Inc. v. Great American Ins. Co., 685 P.2d 42, 45 (Wyo.1984) (observing that "[t]he coverage clause, not the policy titles, controls ... and these admittedly broad labels cannot override the express provisions of the coverage paragraph"); but see Martin v. Allianz Life Ins. Co. of North America, 573 N.W.2d 823, 827 (N.D.1998) (noting that "we would ordinarily consider insurance contract titles as descriptive of the coverage provided"). This court may not, therefore, decide that the term "business" necessarily trumps whatever the coverage clause of the business auto policy might provide. Regardless of the title of the policy, it is possible that Nakamura's vehicle was a "covered auto" pursuant to the business auto policy. Nakamura's father, as a part-owner of DRP, might have included Nakamura's vehicle on the policy. Nakamura's vehicle might have been covered as an "employer's non-owned" vehicle. In any case, it is impossible to discern, without "ITEM TWO of the declarations," what the coverage status of Nakamura's vehicle might have been. Accordingly, the circuit court erred in granting Island's motion for summary judgment with regard to the business auto policy "on the basis that the involved vehicle was not listed in the policy as a covered auto." For the same reasons, we hold that the circuit court erred in granting Island's motion for summary judgment with respect to Island's duty to indemnify DRP. The policy language referring to "non owned autos," adduced by Island in connection with its motions for summary judgment, raised a genuine issue of material fact regarding whether the policy extended to automobile accidents involving vehicles not owned by DRP. Although DRP's motion for summary judgment did not raise the issue of the business auto policy, this court is empowered to order [the] lower court to enter summary judgment in favor of [a] non-moving party where no genuine issue as to any material fact exist[s] and [the] non-moving party [is] entitled to summary judgment as a matter of law[,] even though [the non-moving] party failed to file a cross motion for summary judgment in the lower court. Estate of Doe, 86 Hawai`i at 270, 948 P.2d at 1111 (quoting First Ins. Co. of Hawai`i, Inc. v. State, 66 Haw. 413, 423, 665 P.2d 648, 655 (1983) (citing Flint v. MacKenzie, 53 Haw. 672, 501 P.2d 357 (1972))). None of the "extrinsic facts" adduced by Island forestall the coverage indicated by the business auto policy. See supra section III.B.1. *121 Inasmuch as there was a genuine issue of material fact regarding whether the business auto policy extended coverage to Nakamura's vehicle, there was at least a possibility of coverage under the policy because ITEM TWO might have indicated that Nakamura's vehicle was a "covered auto." As noted above, the duty to defend arises "wherever there is the mere potential for coverage." Sentinel Ins. Co., 76 Hawai`i at 287, 875 P.2d at 904 (citation omitted). Accordingly, we hold that Island owes DRP a duty to defend pursuant to the business auto policy.[20] D. Island Was Entitled to Summary Judgment With Respect To Its Duty To Defend And Indemnify DRP Pursuant To The Commercial General Liability Policy. Island argues that the circuit court correctly relied upon the exclusion set forth in section I.A.2.g of Island's commercial general liability policy to rule that there was no possibility of coverage under that insurance policy. In effect, Island argues (1) that Nakamura was acting outside the scope of his employment when the accident occurred, in which case DRP would not be liable for his conduct under a theory of respondeat superior, or in the alternative (2) that Nakamura was acting within the scope of his employment, in which case the section I.A.2.g exclusion applies. Island's logic is persuasive. On the one hand, if Nakamura acted within the scope of his employment, section I.A.2.g applies. Section I.A.2.g excludes coverage for "bodily injury" arising out of the use of an "auto ... owned or operated by ... any insured." Section II of the policy provides in relevant part that DRP's employees were "insureds," "but only for acts within the scope of their employment[.]"[21] The automobile at issue in the present matter was owned and operated by Nakamura. If Nakamura was acting within the scope of his employment and was therefore an "insured" for purposes of the commercial general liability policy, section I.A.2.g would preclude coverage. On the other hand, if Nakamura was not acting within the scope of his employment, section I.A.2.g does not apply. DRP suggests that, under this scenario, "coverage is triggered under the C[ommercial] G[eneral] L[iability] policy." DRP does not articulate, however, any theory of negligence under which DRP might be liable for Nakamura's action such that the commercial general liability policy would come into play. One of the complaints alleges that DRP was vicariously liable for Nakamura's negligence, presumably under the theory of respondeat superior. "Under the theory of respondeat superior, an employer may be liable for the negligent acts of its employees that occur within the scope of their employment." Wong-Leong v. Hawaiian Independent Refinery, Inc., 76 Hawai`i 433, 438, 879 P.2d 538, 543 (1994) (emphasis added). Accordingly, for DRP to be liable under the respondeat superior theory, Nakamura would have to have been acting within the scope of his employment. As noted above, however, if Nakamura was acting within the scope of his employment, the section I.A.2.g exclusion would apply, and there would be no coverage under the commercial general liability policy. Both complaints in the underlying lawsuits allege that DRP was "negligent," but they fail to clarify this allegation. It could be argued that DRP was liable under the theory of negligent supervision or failure to control. The standards for this theory may be found in Restatement (Second) of Torts § 317 (1995): *122 § 317. Duty of Master to Control Conduct of Servant. A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) The servant (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control. Id. at 444, 879 P.2d at 549 (emphasis added). In Wong-Leong, this court endorsed the view that the provisions of Restatement (Second) of Torts § 317(a) governed the outcome of a claim of negligent failure to control, asserted against an employer, under circumstances in which an employee was involved in an automobile accident after drinking alcohol on the employer's premises and the plaintiffs alleged that the consumption of alcohol was a legal cause of the accident. Id. at 436-37, 445, 879 P.2d at 541-42, 550. In the present matter, however, the plaintiffs in the underlying lawsuit have failed to state a claim for negligent supervision. Both complaints assert that, at all times material, Nakamura was acting within the scope of his employment. Inasmuch as negligent supervision may only be found where an employee is acting outside of the scope of his or her employment, the complaints in the underlying lawsuit cannot be said to state a claim for negligent supervision. Accordingly, DRP cannot be found liable for negligently supervising Nakamura. Inasmuch as it would be impossible for the Vierras or Wolken-Vierras to prevail against DRP in the underlying lawsuits on a claim of negligent supervision, Island bears no burden of defending DRP regarding a negligent supervision claim. See Sentinel Ins. Co., 76 Hawai`i at 287, 875 P.2d at 904 (noting that the duty to defend "rests primarily on the possibility that coverage exists" (citation omitted)). Nakamura was either acting within the scope of his employment, triggering the section I.A.2.g exclusion, or he was not, in which case DRP cannot be found liable, inasmuch as the underlying complaints failed to plead negligent supervision. Therefore, we hold that the circuit court did not err in ruling that the "auto accident exclusion," set forth in section I.A.2.g of Island's commercial general liability policy, dispelled the possibility of coverage thereunder. E. Island Was Entitled to Summary Judgment With Respect To Its Duty To Defend And Indemnify DRP Pursuant To The Commercial Umbrella Insurance Policy. The circuit court ruled that a genuine issue of material fact remained with respect to Island's duty to defend and indemnify pursuant to the commercial umbrella insurance policy. On appeal, Island argues that the exclusion for accidents arising out of the use of an automobile by employees, set forth in Endorsement ICU-103, forecloses the possibility of coverage. For the same reasons articulated in section III.D, supra, we agree. The exclusionary language of Endorsement ICU-103 applies, inter alia, to the use of an "`auto' operated by any person in the course of that person's employment by [the insured]." As above, Nakamura was either acting within the scope of his employment, triggering the Endorsement ICU-103 exclusion, or he was not, in which case DRP cannot be found liable, inasmuch as the underlying complaints failed to plead negligent supervision. Therefore, we hold that the circuit court erred in denying Island's motion for summary judgment and granting DRP's motion for summary judgment with regard to the commercial umbrella insurance policy. *123 IV. CONCLUSION Based on the foregoing analysis, we vacate both of the circuit court's orders concerning the parties' motions for summary judgment, as well as the circuit court's HRCP Rule 54 final judgment, and remand this matter for the entry of orders (1) granting in part and denying in part both parties' motions for summary judgment regarding the commercial garage liability policy, (2) granting DRP summary judgment with regard to Island's duty to defend pursuant to the business auto policy, (3) granting Island's motion for summary judgment concerning the commercial umbrella insurance policy and the commercial general liability policy, (4) denying Island's motion for summary judgment concerning the business auto policy, and (5) denying DRP's motion for summary judgment concerning the commercial general liability policy and the commercial umbrella insurance policy. In furtherance of the foregoing orders, the circuit court should declare, as follows, in its judgment on remand: (1) Island owed a duty to defend DRP pursuant to the commercial garage liability policy beginning on the date of tender, February 6, 1995, and ending on the date of the circuit court's entry of judgment on remand pursuant to this opinion; and (2) Island owes a duty to defend DRP pursuant to the business auto policy. Concurring and Dissenting Opinion by RAMIL, J. With whom NAKAYAMA, J., joins. The Majority's position ignores the reasonable expectations of the policyholder in interpreting the business automobile liability policy. The Majority's holding that Nakamura's vehicle is within the scope of coverage is based on their interpretation of the terms "USE OF OTHER AUTO[,]" "EMPLOYER'S NON-OWNED[,]" and "HIRED AUTO." Reading these terms literally and out of context, the Majority erroneously believes that DRP reasonably expected coverage for a vehicle that was neither listed on the policy nor being used in the course of business at the time of the accident. In the process of extending coverage, the Majority strains to impose a duty to indemnify even where the facts available at the time of the motions for summary judgment precluded any possibility of coverage. In so doing, the Majority has effectively broadened the risk pool subject to coverage, which, in my view, will result in higher premium rates to the detriment of consumers. Accordingly, I dissent from section III.C of the Majority Opinion. A. The Reasonable Expectations of the Parties The Majority holds that there was a genuine issue of material fact with respect to Island's duty to indemnify because the business automobile liability policy contemplates coverage in the underlying complaints. Majority at 425, 992 P.2d at 120. I disagree.[1] It is unquestionable that in construing an insurance policy, we are committed to enforcing the objectively reasonable expectations of the parties claiming coverage, which are construed in accord with the reasonable expectations of a lay person. See, e.g., Hawaiian Ins. & Guar. Co. v. Financial Security Ins. Co., 72 Haw. 80, 87-88, 807 P.2d 1256, 1259-60 (internal quotation marks and citations omitted), reconsideration denied, 72 Haw. 616, 841 P.2d 1074 (1991); see also Estate of Doe v. Paul Revere Ins. Group, 86 Hawai`i 262, 271, 948 P.2d 1103, 1112 (1997) (quoting Dawes v. First Ins. Co. of Hawai`i, Ltd., 77 Hawai`i 117, 121-22, 883 P.2d 38, 42-43, reconsideration denied, 77 Hawai`i 489, 889 P.2d 66 (1994) (citing Sturla, Inc. v. Fireman's Fund Ins. Co., 67 Haw. 203, 209, 684 *124 P.2d 960, 964 (1984))). Indeed, this court has previously stated that "the objectively reasonable expectations of policyholders ... regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations." Hawaiian Ins. & Guar. Co. v. Brooks, 67 Haw. 285, 291, 686 P.2d 23, 26-27 (1984) (internal quotation marks, citation, brackets, and footnote omitted). Despite this well-settled principle that an insurance policy will be construed according to the reasonable expectations of the policyholder, the Majority ignores DRP's objectively reasonable expectation that the business automobile liability policy would cover damages arising from the use of either: (1) one of the four vehicles specifically listed; or (2) all other vehicles that were being used for business purposes. Unlike the Majority, I fail to see, based upon the record existing at the time of Island's motion for summary judgment, how the business automobile policy would cover any vehicle other than the four vehicles specifically listed or other vehicles not listed that were being used for business purposes. In my view, it would have been absurd for DRP to expect Island to cover a vehicle that was owned by one of its employees and being used for purposes entirely unrelated to the garage's business. Although the parties failed to include "ITEM TWO" of Part II of the policy, which allegedly "shows the autos that are covered autos[,]" Island's attachments to its motion for summary judgment supported the circuit court's conclusion that there was no genuine issue of material fact with regard to Island's duty to indemnify even without "ITEM TWO" of the declarations. Based upon the various attachments to Island's motion for summary judgment, it was apparent that: (1) the policy applied only to "covered" automobiles; and (2) the vehicle driven by Nakamura was not one of the four automobiles expressly covered by the policy.[2] It is also undisputed that the policy was a business automobile liability policy and was clearly designated as such. In addition, Nakamura testified in his deposition that the accident occurred (1) some ten hours after the end of his work day, (2) while he was driving home, and (3) after having given a ride to a friend. The record reveals that there is no evidence that the consumption of alcohol that took place on the premises was sponsored by Nakamura's employer or that the drinking would result in some benefit to the employer. In fact, Island adduced evidence that there was an unwritten policy forbidding the consumption of alcohol on the premises. Indeed, the Majority concedes that "no plausible argument could be made that Nakamura was performing `garage operations' or `garage business' at the time of the accident."[3] Majority at *125 423, 992 P.2d at 118. Under these circumstances, the circuit court did not need to have "ITEM TWO of the declarations" to determine that there was no genuine issue of material fact with respect to Island's duty to indemnify DRP.[4] Although the policy makes reference to "USE OF OTHER AUTO[,]" "EMPLOYER'S NON-OWNED[,]" and "HIRED AUTO[,]" I fail to see how the mere reference of any of these terms could create a reasonable expectation of coverage for an employee's personal vehicle that was being used at the time of the accident for personal use. The mere reference to terms such as "USE OF OTHER AUTO[,]" "EMPLOYER'S NON-OWNED[,]" and "HIRED AUTO[,]" could not have created an objectively reasonable expectation that the policy would cover an automobile that was neither specifically listed as a covered automobile nor being used for garage business. Therefore, I would hold that DRP did not have a reasonable expectation of coverage with respect to the business automobile liability policy. Similarly, the mere reference to "non owned autos" does not bring Nakamura's vehicle within the scope of coverage inasmuch as it would have been unreasonable to expect coverage of any and all "non owned autos" under the business auto policy. As discussed above, the vehicle in question at the time of the accident was an employee's personal vehicle being used for purposes entirely unrelated to the garage's business. Indeed, I find the Majority's literal interpretation of the "non owned autos" language of the business auto policy absurd and strained. Although we generally construe any ambiguities in the insurance contract against the insurer, the Majority's overly broad construction of the words "non owned autos" in this case leads to absurdity. It is difficult to imagine that DRP reasonably expected Island to provide coverage to all "non owned autos" without regard to the ownership of the vehicles involved or the purposes for which they are being used at the time of an accident. Majority at 425, 992 P.2d at 120. Indeed, the Majority's interpretation of the "non owned autos" language renders the potential pool of vehicles subject to coverage by Island limitless and the designation of the policy as a "business" automobile liability policy superfluous. I do not suggest that we adopt a bright line rule that the label attached to a policy is determinative of the type and scope of coverage *126 provided. It goes without saying that a policy's scope of coverage is determined by the objectively reasonable expectations of the parties and that the policy title does not necessarily trump whatever the coverage clause of the policy in question might provide. Majority at 425, 992 P.2d at 120. In this case, however, the policy title is indicative of what the parties could have reasonably expected. Considering the language of the policy in its entirety and all of the extrinsic facts that have been adduced, the objectively reasonable expectation of DRP could only have been that Island would indemnify DRP for any damages resulting from the use of: (1) a vehicle that is specifically listed in the policy (i.e., an owned vehicle); or (2) "non owned autos" that are used for business purposes. Surely, the mere reference to terms such as "USE OF OTHER AUTO[,]" "EMPLOYER'S NON-OWNED[,]" and "HIRED AUTO" could not have created an objectively reasonable expectation of coverage for all "non owned autos," notwithstanding the purpose for which the "non owned autos" were being used. To interpret the mere mentioning of the words "non owned autos" to mean all "non owned autos" would render the scope of coverage under the business automobile liability policy virtually limitless. In my view, such a position is simply untenable. Therefore, I would interpret the "non owned autos" language in accordance with the reasonable expectations of the policyholder as discussed above (i.e., that the business automobile liability policy would cover damages arising from the use of: (1) vehicles that are specifically listed on the policy; or (2) "non owned autos" used for business purposes). Because extrinsic facts reveal that Nakamura's vehicle was neither listed on the policy nor being used for a business purpose at the time of the accident, I would hold that Island has no duty to indemnify DRP. B. Implications of the Majority's Interpretation. In my view, the Majority's interpretation of the business automobile policy blurs the potential risk pool subject to coverage that is considered in determining insurance rates. Given that a contract of insurance is an agreement in which one party (the insurer), in exchange for consideration provided by the other party (the insured), assumes the other party's risk and distributes it across a group of similarly situated insureds, it is elementary that insurers must subdivide insureds into distinct groups with similar risks. See Robert H. Jerry, Understanding Insurance Law 13-17 (2d ed.1996). By so doing, insurers are able to distribute the risks being insured against amongst the pool of similarly situated insureds. Insurers can then set similar rates for the members of that group. Today, despite the clear intent to limit coverage to damages arising from garage business, the Majority essentially holds that a "business" automobile insurance policy can cover damages resulting from activities unrelated to the garage's business or its operations. Specifically, the Majority's literal interpretation of the business automobile liability policy effectively destroys all limitations with respect to the vehicles subject to coverage under the policy. By so doing, the Majority has broadened beyond recognition the risk pool to which the insurer is obligated to provide coverage. Consequently, in my opinion, insurers will be forced to raise premium rates to the detriment of consumers in order to compensate for the broadened risk pool. C. Conclusion For the reasons discussed above, I dissent from section III.C of the Majority's Opinion. NOTES [1] Shell Oil Company, a coplaintiff in the action in the circuit court, has not participated in the present appeal, having apparently been dismissed as a defendant in both of the underlying lawsuits. [2] In their complaint for declaratory relief, DRP and Shell also prayed for an award of "costs, attorneys' fees and prejudgment interest ... and all other relief including money damages which this Court deems just and proper." Inasmuch as neither of the parties raise any arguments with respect to the foregoing prayer for relief, we do not address it herein. [3] That section, subtitled "SCHEDULE OF COVERAGES AND COVERED AUTOS," includes a chart detailing various types of coverages included in the policy and the "COVERED AUTOS," policy limits, and premium amounts associated with each type of coverage. In the blank for "COVERED AUTOS" associated with "LIABILITY INSURANCE—Bodily Injury; Property Damage," the symbol "1" is indicated. Symbol "1" is described in "ITEM THREE" at the bottom of the page as "ANY AUTO." In addition, "ITEM TWO" indicates, in a blank for "UNINSURED MOTORISTS INSURANCE," the symbol "2," which is described in "ITEM THREE" as follows: "OWNED AUTOS ONLY. Only those autos you own (and for liability coverage and trailers you don't own while attached to power units you own). This includes those autos whose ownership you acquire after the policy begins." (Boldface emphasis in original.) In blanks for "Comprehensive Coverage" and "Collision Coverage," the symbol "7" is indicated. Symbol "7" is described in ITEM THREE as follows: "SPECIFICALLY DESCRIBED AUTOS. Only those autos described in ITEM FOUR for which a premium charge is shown (and for liability coverage for trailers you don't own while attached to any power unit described in ITEM FOUR)." (Bold face emphases in original.) Other symbols described in "ITEM THREE" include the captions "HIRED AUTOS ONLY" and "NONOWNED AUTOS ONLY." [4] DRP's motion requested only partial relief, inasmuch as it did not address the issue of Island's duty to indemnify it and Shell pursuant to the policies. [5] We note that the circuit court clearly erred insofar as it purported to grant summary judgment in favor of DRP with respect to Island's duty to defend, pursuant to the commercial garage liability and commercial umbrella insurance policies, while, at the same time, ruling that genuine issue of material fact existed with regard to those policies. Such a ruling flouts the very nature of summary judgment. See infra section II.A. [6] HRCP Rule 54(b) provides in relevant part that, [w]hen more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.... [7] As noted supra in note 5, inasmuch as the circuit court had ruled that a genuine issue of material fact existed with regard to Island's duty to defend pursuant to the commercial garage liability policy and the commercial umbrella insurance policy, it erred in granting final judgment to DRP on those issues without the benefit of trial. [8] But see our discussion infra in section III.B.3 regarding staying a declaratory judgment action concerning indemnity pending the adjudication of the underlying lawsuit. [9] We note that, in Spruill Motors, Inc., the decision quoted in Standard Oil, the Kansas Supreme Court carried the above-described concept one step farther. In Spruill Motors, Inc., the court held that although intentional acts were excluded from coverage by the insurance policy at issue, and the underlying complaint expressly alleged that the plaintiff had been injured because of the intentional acts of the insured's agent, the insurer nevertheless was subject to a duty to defend because the information independently available to the insurer demonstrated that the insured's agents' acts had, in fact, been negligent rather than intentional. See Spruill Motors, Inc., 512 P.2d at 408. Thus, even where the language of the complaint affirmatively and unambiguously excluded the possibility of coverage, Spruill Motors, Inc. required the insurer to investigate further to determine whether there was a possibility of coverage in any event. We do not believe that the Standard Oil court intended to endorse so expansive a view, and we do not do so now. Cf. Pancakes of Hawaii, Inc. v. Pomare Properties, 85 Hawai`i 286, 291, 944 P.2d 83, 88 (App.1997) ("`Where pleadings fail to allege any basis for recovery within the coverage clause, the insurer has no obligation to defend.'") (Quoting Hawaiian Holiday Macadamia Nut Co., 76 Hawai`i at 169, 872 P.2d at 233 (quoting Hawaiian Ins. & Guar. Co. v. Blair, Ltd., 6 Haw.App. 447, 449, 726 P.2d 1310, 1312 (1986)) (internal quotation marks and citations omitted)). [10] The ICA's observation was apparently dictum, inasmuch as the actual holding in Bayudan was that the insurer was not required to defend the insured based on the allegations of the complaint itself. 87 Hawai`i at 384-88, 957 P.2d at 1066-70. [11] The "named insured" on the Brooks policy was an automobile repair company that owned the truck used to perpetrate the acts against the plaintiff in the underlying lawsuit. The driver of the truck on the date of the incident was an additional insured pursuant to a provision of the policy extending coverage to "any other person while using an owned automobile ... with the permission of the named insured[.]" Brooks, 67 Haw. at 290, 686 P.2d at 26. [12] California and Indiana appear to be divided internally on the issue. Compare Montrose Chemical Corp., 24 Cal.Rptr.2d at 474, 861 P.2d 1153 (holding that "[a] carrier remains free to seek declaratory relief if undisputed facts conclusively show, as a matter of law, there is no potential for liability" (emphasis added) (citation and internal quotation signals omitted)), Horace Mann Ins. Co. v. Barbara B., 4 Cal.4th 1076, 17 Cal.Rptr.2d 210, 214, 846 P.2d 792 (1993) (noting that "[t]he [California] courts of appeal have expressed varying views on the question of whether the insurer must defend when the complaint on its face shows a potential for coverage but extrinsic facts are to the contrary" (citations omitted), but declining to address the issue), and A-H Plating v. American Nat'l Fire Ins., 57 Cal. App.4th 427, 67 Cal.Rptr.2d 113, 121 (1997) (holding that "an insurer cannot avoid the duty to defend merely by concluding, based on its own investigation, that the insured has done no wrong") with Waller v. Truck Ins. Exchange, Inc., 11 Cal.4th 1, 44 Cal.Rptr.2d 370, 379, 900 P.2d 619 (1995) (noting, in dictum, that, "where the extrinsic facts eliminate the potential for coverage, the insurer may decline to defend even when the bare allegations in the complaint suggest potential liability" (citations omitted)), Monteleone v. Allstate Ins. Co., 51 Cal.App.4th 509, 59 Cal.Rptr.2d 48, 52 (1997) (holding that extrinsic facts may be considered even where the allegations of the complaint indicate coverage), and Charles E. Thomas Co. v. Transamerica Ins. Group, 62 Cal.App.4th 379, 72 Cal.Rptr.2d 577, 579 (1998) (holding that extrinsic facts may be considered). See also Huntzinger v. Hastings Mut. Ins. Co., 143 F.3d 302, 308-09 & n. 8 (7th Cir.1998) (noting that, in Transamerica Ins. Servs. v. Kopko, 570 N.E.2d 1283, 1285 (Ind. 1991), the Indiana Supreme Court held that the "duty to defend is determined solely by the nature of the complaint," but that subsequent Indiana Courts of Appeals opinions have not been consistent with Kopko). [13] By our action today, we do not intend to call into question the ongoing viability of Brooks and Blanco in any other respect. Neither do we intend to disturb any decision that relied upon Brooks and Blanco in addressing any question separate and apart from an insurer's basis for disclaiming its contractual duty to defend. See, e.g., AIG Hawaii Ins. Co. v. Estate of Caraang, 74 Haw. 620, 851 P.2d 321 (1993). [14] One example of an extrinsic fact upon which an insurer might rely pursuant to the new rule arises when an insurer argues that an occurrence was outside of the effective period of the policy. In such a case, the factual issue regarding the parameters of the effective period of the policy would not normally be subject to dispute in the underlying action. Cf. Sentinel, 76 Hawai`i at 289, 875 P.2d at 906 (appearing to accept that an insurer had proved that damages in the underlying action "manifested themselves before [the] policy period began," but holding that the insurer's other operative assumptions were not conclusively proven). Moreover, where the facts at issue can no longer be disputed in the underlying lawsuit because they have already been conclusively established for purposes of those proceedings prior to the resolution of the declaratory judgment action, we see no reason why evidence of such facts should not be available in the declaratory judgment action. See Sterilite Corp. v. Continental Cas. Co., 17 Mass.App.Ct. 316, 458 N.E.2d 338, 344 (1983) (holding that an insurer "can, by certain steps, get clear of the duty [to defend] from and after the time when it demonstrates with conclusive effect on the third party that as a matter of fact—as distinguished from the appearances of the complaint and policy—the third party cannot establish a claim within the insurance," but that "[w]hat is not permitted is that an insurer shall escape its duty to defend the insured against a liability arising on the face of the complaint and the policy by dint of its own assertion that there is no coverage in fact" (emphasis added)). For example, if the parties to the underlying lawsuit stipulate to certain facts, as they did in Blanco, those facts would be conclusively established for purposes of the duty to defend because they would no longer be subject to dispute in the underlying lawsuit. We note, however, that the stipulation in Blanco was not signed until after the insurer had refused the insured's tender of defense. Inasmuch as the duty to defend is determined as of the time of tender, the stipulation would only have affected the insurer's duties after the stipulation was entered into. [15] On appeal, DRP challenges the sufficiency of the evidentiary foundation for Araki's affidavit for purposes of admissibility. As Island rightly points out, however, DRP never raised its evidentiary objection in the circuit court. Accordingly, DRP waived that issue. See Craft v. Peebles, 78 Hawai`i 287, 294, 893 P.2d 138, 145 (1995). DRP also argues that Araki's affidavit does not indicate when Araki gained the information to which he avers in his affidavit, observing that, in a letter dated after Island's first refusal of DRP's tender of defense, Island's counsel represented that "[a] factual investigation of this matter is undeveloped[.]" However, Island justifiably reaverred torts that Araki's statement that he "referred the matter" to Island's counsel "[b]ased on the information obtained for [Island's] investigation" indicates that all of the information was gathered prior to the denial of the tender of defense. [16] In Taylor v. GEICO, 90 Hawai`i 302, 312 n. 9, 978 P.2d 740, 750 n. 9 (1999), we noted a split in the jurisdictions on the question whether an insurer may, consistent with public policy, terminate its duty to defend by paying the full policy limits. That question is not at issue in this appeal, however, inasmuch as Island never offered to pay pursuant to the policies. By contrast, as noted above, the precedent in our own jurisdiction is clear that, where all indemnifiable claims have been disposed of, the insurer's duty to defend terminates. [17] Island argues that the affidavit of DRP's insurance agent, Roger Yamagata, indicates that the policy's coverage of "non owned vehicles" was intended by the parties to relate solely to "vehicles used in connection with business operations." However, Yamagata's affidavit was not attached to any of the parties' memoranda regarding the motions for summary judgment. DRP brought Yamagata's affidavit to the attention of the circuit court in connection with its motions for reconsideration of the circuit court's orders concerning the motions for summary judgment. Accordingly, Yamagata's affidavit bears only on the question whether the circuit court erred in denying DRP's motion for reconsideration. [18] Although the exhibits attached to Island's motion for summary judgment indicate that DRP paid premiums on four particular automobiles, that evidence is not sufficient to prove that Nakamura's vehicle was not covered under the business auto policy. [19] Contrary to Island's assertion, as noted previously, it is possible that facts could emerge at a future trial or through additional discovery indicating that Nakamura was, in fact, using the vehicle in connection with business operations. [20] Whether Island also owes DRP a duty to indemnify pursuant to the business auto policy must be determined at a later date, inasmuch as a question of fact remains regarding whether Nakamura's vehicle was a "covered auto." Cf. Sentinel Ins. Co., 76 Hawai`i at 287, 875 P.2d at 904. Inasmuch as we rule in favor of DRP with respect to Island's motion for summary judgment on the issue of Island's duty to defend and indemnify pursuant to the business auto policy, we need not address the circuit court's denial of DRP's motion for reconsideration on the issue. [21] The parties do not dispute that DRP is an "insured" under the policy. Because it is DRP, and not Nakamura, that tendered its defense to Island, Nakamura's status as an "insured" is relevant only to the exclusion set forth in section I.A.2.g. [1] In contrast, I agree with the majority with regard to Island's duty to defend pursuant to the business automobile liability policy inasmuch as the allegations in the underlying complaint give rise to the possibility of coverage. Because we are confined to the allegations in the complaint in determining an insurer's duty to defend, I agree that it is possible that the vehicle(s) mentioned in the complaint could have been "covered" automobiles. Upon further investigation (i.e., upon considering extrinsic evidence), however, it is clear that the vehicle in question is not a covered automobile. Therefore, Island did not have a duty to indemnify with respect to the business automobile liability policy. [2] The exhibits attached to Island's motion for summary judgment indicate that DRP paid premiums on the following four automobiles: (1) a 1987 "CHEV VAN"; (2) a 1991 "M/BENZ" 560 SEL; (3) a 1982 Mercedes two-door 380 SEC; (4) and a 1988 Ford Mustang LX. It is undisputed that Nakamura was not driving any of these vehicles at the time of the accident. [3] In footnote 19, the Majority states that "it is possible that facts could emerge at a future trial or through additional discovery indicating that Nakamura was, in fact, using the vehicle in connection with business operations." Ironically, however, in its discussion of the commercial garage liability policy in section III.B.2., which immediately precedes the discussion of the business automobile liability policy, the Majority correctly observes: Nakamura testified in his deposition that the accident occurred (1) some ten hours after the end of his work day, (2) while he was driving home, and (3) after having given a ride to a friend. On these particular facts, no plausible argument could be made that Nakamura was performing "garage business" at the time of the accident. As the Majority also notes, DRP failed to offer any evidence to rebut Nakamura's account of the relevant events and, in fact, failed to dispute it. In addition, an investigation revealed the following information, which was presented to the circuit court for purposes of summary judgment: . . . . b. Garth Nakamura was drinking alcohol on the premises of Dairy Road Shell from approximately 8:00 p.m. the evening before the accident, until 2:30 a.m. on the date of the accident. c. Garth Nakamura was drinking with his friends, none of whom were employees of Dairy Road Shell. d. The drinking event was not a company sponsored activity. e. Mr. Glenn Nakamura, Garth Nakamura's father and a partner at [DRP], was not aware of the drinking of alcohol on the premises of Dairy Road Shell, referred to hereinbefore. f. Garth Nakamura was not working at the time of the accident. g. Just before the subject accident, when Garth Nakamura left the Dairy Road Shell, he did so in his personal vehicle. h. At the time of the subject accident, Garth Nakamura was operating his personal vehicle for a personal purpose. As with Nakamura's account of the relevant events, DRP failed to offer any evidence to rebut the information revealed by the investigation. Under these circumstances, I fail to see how DRP can demonstrate that Nakamura's vehicle was being used in connection with business operations, even with additional discovery or a trial. Interestingly, the affidavit of DRP's insurance agent, Roger Yamagata, which was submitted by DRP in connection with its motions for reconsideration, indicates that the policy's coverage of "non owned vehicles" was intended by the parties to relate solely to "vehicles used in connection with business operations." Therefore, although I do not believe that Yamagata's affidavit is necessary to interpret the business auto policy, I believe that additional evidence from further discovery or a trial would indicate that DRP could not have reasonably expected Island to cover a non owned vehicle that was not being used in connection with business operations. [4] The Majority attempts to create an issue of fact by reasoning that "Nakamura's father, as a partowner of DRP, might have included Nakamura's vehicle on the policy. Nakamura's vehicle might have been covered as an `employer's non-owned' vehicle." However, as discussed, the policy sets forth four specific vehicles that are expressly. covered. Ironically, the policy does not list Nakamura's vehicle as a covered vehicle. Had Nakamura's father intended to include Nakamura's vehicle on the policy, he would have arranged to place Nakamura's vehicle on the list of covered vehicles. Nakamura would not have relied on the mere mention of "employer's non-owned" vehicle to provide coverage to Nakamura's vehicle. In any event, I do not believe that Nakamura could have reasonably expected the business automobile policy to cover a vehicle that he or the business neither owned nor used for business purposes at the time of the accident. Therefore, at the time of summary judgment, there was no genuine issue of material fact inasmuch as all of the relevant facts were undisputed. See supra note 3.

537 U.S. 1143 WALKERv.WISCONSIN. No. 02-7835. Supreme Court of United States. January 13, 2003. 1 CERTIORARI TO THE COURT OF APPEALS OF WISCONSIN. 2 Ct. App. Wis. Certiorari denied.

190 F.3d 310 (5th Cir. 1999) CHRISTOPHER VILLAGE, LIMITED PARTNERSHIP; WILSHIRE INVESTMENTS CORPORATION, PLAINTIFFS-APPELLANTS,v.NICHOLAS P RETSINAS; ET AL, DEFENDANTS,NICHOLAS P RETSINAS; ALBERT CASON, DIRECTOR MULTIFAMILY HOUSING MANAGEMENT; THE HONORABLE ANDREW M CUOMO, SECRETARY OF HOUSING AND URBAN DEVELOPMENT; HENRY CISNEROS, DEFENDANTS-APPELLEES. No. 98-20181 U.S. Court of Appeals, Fifth Circuit September 15, 1999 Appeal from the United States District Court for the Southern District of Texas Before Jones, Smith, and Emilio M. Garza, Circuit Judges. 1 The opinion of the court was delivered by: Edith H. Jones, Circuit Judge 2 Appellants Christopher Village, Ltd. and Wilshire Investments (collectively "Village"), owned and managed a federally subsidized low income housing complex in Bryan, Texas. They filed this suit contending that the Department of Housing and Urban Development (HUD) causedVillage to default on its obligation to maintain the property by denying necessary rent increases and illegally demanded a multimillion-dollar equity contribution from Village. As the suit progressed, HUD reacquired and sold the property at foreclosure, and the apartment complex has been torn down. Nevertheless, as to the part of this case which is not moot, we hold that HUD's actions were arbitrary and capricious. Village is entitled to a partial declaratory judgment in its favor. BACKGROUND 1. HUD Regulatory Scheme 3 The National Housing Act was enacted (and subsequently amended) to "assist private industry in providing housing for low and moderate income families and displaced families." 12 U.S.C.A. §§ 1715l(a) (West 1989). To foster private investment, the Act authorizes HUD to insure private mortgage loans used to construct low income housing. See 12 U.S.C.A. §§ 1715l(d)(3) (West 1989). In addition, the Act and HUD regulations encourage private investment by allowing owners to borrow money at reduced interest rates, reducing a borrower's equity requirements, permitting owners to sign non-recourse notes, and, prior to the 1986 tax code changes, granting owners and investors generous tax benefits. See generally, Kargman v. Sullivan, 552 F.2d 2, 4 (1st Cir. 1977). By granting owners these benefits, Congress sought to reduce the financial risk associated with operating low income housing by "reducing the rentals necessary to service the landlord's debt obligation." Hahn v. Gottlieb, 430 F.2d 1243, 1245 (1st Cir. 1970); see also Beck Park Apartments v. United States Dep't of Hous. and Urban Dev., 695 F.2d 366, 368 (9th Cir. 1982). 4 In exchange for these financial benefits, HUD requires low income property owners to enter into "Regulatory Agreements" that give HUD extensive regulatory authority over the operation and maintenance of the property. See 12 U.S.C.A. §§ 1715l(d)(3).1 Under a standard Regulatory Agreement, an owner must dedicate the property for medium or low income tenants, must remain a sole asset entity (i.e., may not engage in any business other than owning and operating the property), may not take a profit distribution over six percent per year, must adequately maintain the property, and may not increase rents without approval from HUD. See Kargman, 552 F.2d at 4. If an owner violates the Regulatory Agreement, HUD may declare the property in default, accelerate the mortgage, and foreclose on the property.2 HUD also sets the maximum allowable rent an owner can charge its tenants. In doing so, HUD is supposed to provide owners with sufficient funds to operate and maintain the property, service the debt, pay taxes, cover various reserve requirements, and provide the owner a reasonable return on investment. See, e.g., 12 U.S.C.A. §§ 1747c (West 1989).3 If rental revenues fail to cover these costs, anowner can request a rental increase from HUD. See 24 C.F.R. §§ 245.325. 5 Since most tenants of low income housing are on welfare and cannot afford to pay the full contract rental price, Congress created the Section 8 housing program to subsidize their rent. See 42 U.S.C.A. §§ 1437f (West 1994). "Under the program, tenants make rental payments based on their income and ability to pay; [HUD] then makes `assistance payments' to the private landlords in an amount calculated to make up the difference between the tenant's contribution and a `contract rent' agreed upon by the landlord and HUD." Cisneros v. Alpine Ridge Group, 508 U.S. 10, 12, 113 S. Ct. 1898, 1900 (1993). Because the Section 8 program requires that a tenant pay a maximum of 30% of the gross rent, if HUD approves a rental increase, the majority of the increase is absorbed by HUD via the Section 8 subsidy. The subsidy is implemented through Housing Assistance Payment ("HAP") contracts entered into between HUD and the property owners which extensively regulate an owner's management of the property. HAP contracts set the maximum allowable rent an owner may charge and the subsidy amount paid by HUD and require owners to maintain the property in a safe and sanitary condition. 2. Factual and Procedural History 6 The property at issue in this case, Mockingbird Run Apartments, was built in 1970 from the proceeds of a §§ 221(d)(3) insured loan and was therefore subject to a Regulatory Agreement. Because Mockingbird was receiving Section 8 subsidies, the property was also subject to a HAP contract. When Village purchased Mockingbird in 1983, it assumed the obligations and benefits of both agreements. 7 By 1995, Mockingbird's physical condition had substantially deteriorated and approximately $2 million was needed to restore the property. HUD warned Village that a failure to refurbish the property could result in abatement of Section 8 subsidies and constituted a default under the Regulatory Agreement. The parties began negotiating plans to repair Mockingbird, including the issue who would fund the needed repairs. Each of several plans proposed by Village stipulated that HUD would increase the contract rent and Village would incur a large loan to be repaid out of the property's future rental revenues. HUD, however, rejected the proposals, insisting instead that Village pay all of the $2 million repairs without any assistance from HUD. 8 In June 1995, Village formally requested that HUD increase its contract rent since Mockingbird's rental revenues were inadequate to reimburse its operating costs and the necessary maintenance and repairs. Without approving or denying the request, however, HUD replied by letter dated August 25, 1995, demanding that Village place the $2 million needed to pay for the repairs in escrow within 60 days or face default. On September 6, HUD reiterated its demand, cautioning that, although Village's rent increase request was under review, "no action will be taken at this time due to the provisions in the HUD letter dated August 25, 1995." Finally, on September 14, HUD notified Village that, since Village had not complied with the August 25, 1995 demand for $2 million and because Village had "violated paragraph eight of the Regulatory Agreement by not maintaining the mortgaged premises in good repair and condition," HUD would "proceed without further notice to take whatever remedies are appropriate". HUD intended to accelerate the mortgage and foreclose on the property. Indeed, on December 1, 1995, HUD assumed control of the property as a mortgagee in possession.4 9 Village sued various HUD officers seeking a declaratory judgment, an injunction, and mandamus, arguing that HUD unlawfully refused to entertain its rent increase request, illegally demanded $2 million, and made it impossible for Village to maintain the property because of insufficient rental revenues. The district court, unmoved, ultimately denied all of Village's requested relief and granted summary judgment in favor of HUD. According to the court, HUD's rent increase decisions are unreviewable5 , and Village had an absolute obligation to maintain the property regardless whether it received sufficient rents to cover repair costs. 10 After obtaining the favorable summary judgment, HUD slated the property for foreclosure sale. Although Village moved the district court to stay the sale pending appeal, the district court, and subsequently this court, rejected the motion and allowed the sale to proceed. HUD, as the only bidder, bought the property at the auction and eventually "sold"6 it to the City of Bryan Housing Authority, allegedly to be demolished and redeveloped as elderly and handicapped housing.7 STANDARD OF REVIEW 11 This court reviews a grant of summary judgment de novo, applying the same standards as the district court. Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548 (1986). All fact questions are reasonable inferences draw therefrom are viewed in the light most favorable to the non-moving party. See Urbano v. Continental Airlines, Inc., 138 F.3d 204, 205 (5th Cir. 1998). DISCUSSION I. Mootness 12 Before considering the merits of this appeal, it is necessary to determine whether Mockingbird's foreclosure sale, purchase by HUD, and subsequent transfer to the City of Bryan mooted this appeal. "The mootness doctrine is grounded primarily and originally in the appellate court's inability to fashion relief." Sullivan Cent. Plaza I, Ltd., v. BancBoston Real Estate Capital Corp. (In re Sullivan Cent. Plaza, I, Ltd.), 914 F.2d 731, 733-34 (5th Cir. 1990). Ordinarily, an appeal will be moot when the property underlying the dispute has been sold at a foreclosure sale because this court cannot fashion adequate relief, i.e., cannot reverse the transaction. See id. at 733 ("If the debtor fails to obtain a stay, and if the property is sold in the interim, the district court will ordinarily be unable to grant any relief."); United States v. Blanche, 169 F.3d 956, 957 (5th Cir. 1999); NCNB Texas Nat'l Bank v. Southwold Assocs., 909 F.2d 128, 129 (5th Cir. 1990). 13 The foreclosure sale and transfer to the city of Bryan effectively mooted Village's request for an injunction and mandamus because of this court's inability to fashion adequate relief. The property has been sold at a foreclosure sale and is now held by a party not before this court;the apartment complex has been torn down. Thus, any request for relief that involves a transfer of "the property" would amount to an impossible request for this court to "unscramble the eggs". 14 Although the injunction and mandamus requests are moot, Village's request for a declaratory judgment continues to present a live dispute because this court can still provide adequate relief. "Where several forms of relief are requested and one of these requests subsequently becomes moot, the Court [can] still consider[] the remaining requests." Powell v. McCormack, 395 U.S. 486, 496 n.8, 89 S. Ct. 1944, 1951 n.8 (1969); see also id. 395 U.S. at 499, 89 S. Ct at 1955 ("A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus."). A declaration that HUD violated its regulations and contracts grants Village adequate relief because, even without regaining title to the property, Village could use the declaration as a predicate for a damages action against HUD in the Court of Federal Claims. See id. (noting that "[a] declaratory judgment can then be used as a predicate to further relief"); Globe, Inc. V. United States, 227 Ct.Cl. 784 (Ct. Cl 1981) (allowing plaintiff who obtained a favorable declaratory judgment in federal district court to sue the United States for damages in the Court of Claims). The declaratory judgment aspect of this case is not moot. II. REVIEWABILITY 15 The district court granted summary judgment in part because it found HUD's actions judicially unreviewable in light of HUD's discretion to approve or deny rent increase requests. Village argues, however, that HUD's actions are reviewable because HUD violated its regulatory and contractual duty to entertain the rent increase request. 16 The Administrative Procedure Act authorizes judicial review of agency decisions except when the "agency action is committed to agency discretion by law." 5 U.S.C.A. §§ 701(a)(2). An action is committed to agency discretion when "no judicially manageable standards are available for judging how and when an agency should exercise its discretion . . . ." Heckler v. Cheney, 470 U.S. 821, 830, 105 S. Ct. 1649, 1655 (1985). 17 The circuit courts have unanimously agreed that because Congress committed to HUD full discretion in determining whether to grant or deny a rent increase request, the decision on the amount of any increase is unreviewable. See Frakes v. Pierce, 700 F.2d 501, 505 (9th Cir. 1983) ("[C]courts are ill-equipped to superintend economic and managerial decisions of the kind involved here.") (quoting Hahn 430 F.2d at 1249); Langevin v. Chenango Court, Inc., 447 F.2d 296, 302-03 (2d Cir. 1971); Hahn, 430 F.2d at 1249-51. In determining rent increase requests, HUD must delicately balance the competing interests of the property owner, the tenants, and the federal government as guarantor of the loan and payor of the Section 8 subsidy. HUD must also take into account factors that bear on rental rates such as property taxes, utility rates, the average rental rate in the area, estimates of future maintenance needs, and vacancy rates. See 42 U.S.C.A. 1437f(c)(2)(B). Because of the lack of judicially manageable standards and HUD's need for a "flexible exercise of administrative discretion" in overseeing its properties, Hahn, 430 F.2d at 1246, courts should generally refuse to review HUD's substantive decisions regarding a rent increase request. 18 The district court and HUD, however, misconstrue Village's argument. Village is not appealing HUD's denial of its requested rent increase; rather, it is appealing HUD's refusal to entertain the request and the alternative regulatory path taken by HUD -- threatening foreclosure and demanding a multimillion-dollar equity contribution from Village. The cases previously cited universally recognize that acourt's refusal to review HUD rent decisions does not necessarily obtain when HUD ignores "a plain statutory duty, exceed[s] its jurisdiction, or commit[s] constitutional error." Id. at 1251. As Village's allegations involve these very issues, its claims are reviewable. 19 III. Village's Request for a Declaratory Judgment 20 Village seeks a declaratory judgment stating that HUD acted arbitrarily and capriciously by (1) refusing to consider Village's rent increase request; (2) declaring Village in default and subsequently foreclosing on Mockingbird because Village failed to adequately maintain the property; and (3) refusing to review its rent increase request unless Village escrowed $2 million for repairs on Mockingbird. 21 Village argues that its obligation to maintain the property was dependent upon HUD's providing sufficient rent revenues to pay for maintenance. According to Village, because HUD refused to approve a sufficient rental schedule, HUD acted arbitrarily and capriciously in citing poor maintenance as the reason for declaring Village in default. HUD counters that Village had an absolute duty to maintain the property, regardless of its rental income. This means that if Village's rental income was insufficient to pay all of its operating and maintenance costs, Village and its financial partners must either invest additional equity to make up any deficiencies or risk default and foreclosure. 22 HUD's argument would perhaps be convincing if it had undertaken to review Village's rental increase request and to rule upon it. Both the Regulatory Agreement and HUD's regulations require HUD at least to entertain a rent increase request.8 See Regulatory Agreement, ¶¶4(g) (stating that HUD "will at any time entertain a written request for [a rent] increase"); 24 C.F.R. §§ 886.312(b) (stating that once HUD receives a request, it "shall approve a rental schedule . . . or shall deny the increase stating the reasons therefor") (emphasis added). HUD violated its contractual and regulatory duty to consider the rent request. This defect renders suspect HUD's other actions, particularly when the full regulatory context is considered. 23 Village certainly had the duty to maintain Mockingbird "so as to provide decent, safe and sanitary housing." HAP Contract, §§ 14(a); see also Regulatory Agreement, §§ 7 ("Owners shall maintain the mortgaged premises . . . in good repair and condition."). Village's duty, however, was not absolute. Nothing in the National Housing Act, HUD's regulations, the Regulatory Agreement, or the HAP contract requires Village, as a low income property owner, to absorb or subsidize operating and maintenance deficiencies. Instead, the programs are designed to ensure that HUD establishes rental rates so that property owners receive enough revenue to cover all of the property's expenses including maintenance, repairs, debt service, taxes, and a six percent return on investment. See 12 U.S.C.A. §§ 1747c. Thus, the HUD reimbursement scheme resembles cost-plus contracts or public utility regulation, in either of which situations the private party who performs the work is assured of recovering reasonably incurred costs as well as a reasonable return on investments. 24 That the cost of operating and maintaining the property, in addition to the cost of complying with the Regulatory Agreement,9must be paid for out of the regulated rental revenues is reinforced in several ways. First, HUD's internal interpretation of its regulations indicates that operating and maintenance costs are to be derived from the rental revenues. Albert Cason, the Director of Multifamily Housing (Houston, Texas Office) and the HUD official who oversaw Mockingbird, testified that "[e]verything that comes from the project's operation is paid from the rents," and "[w]e've all agreed that the operation and maintenance of the property comes out of the rents." Similarly, HUD's handbook states that "[i]n reviewing requests from owners concerning rents and charges, the Field Office should be guided by the fact that these rents and fees should and must provide sufficient and adequate funding to operate the projects." Multifamily Asset Management and Project Servicing, United States Department of Housing and Urban Development, Handbook 4350.01 Rev-1,7-1 (September 1992); see also 42 U.S.C. §§ 1437f(c)(2)(B) (stating that HUD shall adjust the HAP contract to provide for sufficient monthly rents "to reflect increases in the actual and necessary expenses of owning and maintaining the units"); 12 U.S.C. §§ 1747c.; Beck Park, 695 F.2d at 371 ("HUD has the duty to maintain reasonable rents, based on operating costs, and to allow project owners a reasonable return on their investment."). 25 Second, HUD forced Village to be organized as a single asset entity, which can neither own or operate any other property nor conduct any other business besides owning the property. See Regulatory Agreement §§ 6(f) (prohibiting Village from engaging "in any other business or activity, including the operation of any other rental project"). Because of this requirement, Village had no source of income to maintain the property other than the rental revenues. The only way for it to obtain a sufficient amount of money to pay for the needed repairs was by seeking a rent increase. HUD's refusal to consider a rent increase effectively forced Village either to default or, as HUD well knew, to seek additional equity or debt financing without assurance that these investments would be recouped. 26 Third, Village signed a non-recourse note, guaranteed by HUD. From the inception of HUD's program, therefore, Village was not required to support the property financially after its initial investment. Had Village not obtained a non-recourse loan, then either Village as an entity or perhaps its investors could have been made responsible to the lender (and HUD) for failure to repay or comply with terms of the loan. One HUD official put it this way: "[HUD} does not require owners to make outright cash gifts to the projects they own. After final endorsement of a mortgage, there is no requirement of owners to provide additional funds to a project." Letter from Dean K. Reger, Deputy Director of Multifamily Housing Management, to Mr. Streuby L. Drumm, Jr. (October 21, 1994). 27 The interplay among these aspects of the regulatory program makes clear that all of the expenses of operating and maintaining a low income housing project must be paid out of the rental revenues, which in turn are subsidized by HUD. The regulatory scheme does not contemplate that property owners must bear the risk of maintaining properties based on insufficient rental revenues. HUD could understandably refuse to provide financial assistance to an owner that has misappropriated funds, mismanaged the property, taken a profit instead of maintaining the property, or been negligent in its management in some other regard. When those elements are absent, however, thestatutes provide that HUD must ensure that the owner receives rents sufficient to meet at least the operating and maintenance expenses of the property. There is no statutory or regulatory basis for imposing on a conscientious low-income housing operator the risk of uncompensated dilapidation or deterioration; the federal government, not the private contractor, is charged with funding the public program. 28 In the case at hand, it is alleged that rental revenues approved by HUD were consistently insufficient to cover the cost of operating and maintaining the property.10 Village sought several rental increases over the course of its ownership of Mockingbird, but it never received the full amount requested, nor the amount it thought was necessary to maintain the property.11 Annual financial audits appear to have routinely showed, moreover, that Village never misappropriated funds or squandered its revenues. Village never received a profit from Mockingbird and appears to have applied all of its revenues to cover costs of operating and maintaining the property. In addition, there was no evidence that the property was mismanaged,12 nor did HUD ever attempt to remove the management company as it had a right to do. See Regulatory Agreement, 9(a) ("Any management contract entered into by Owners . . . involving the project shall contain a provision that it shall be subject to termination, without penalty, and with or without cause, upon written request by the Commissioner addressed to the Owners."). 29 These facts reinforce Village's contention that HUD's $2 million demand was arbitrary and capricious. As noted supra, instead of considering Village's rent request, HUD determined that "no action" would be taken unless Village first escrowed $2 million. HUD cannot point to any statute, regulation, or agreement with Village giving it the discretion to table Village's rent increase request and use it as leverage to demand $2 million new equity for repairs.13 30 Because HUD acted without statutory or regulatory authority, the agency arbitrarily and capriciously demanded Village to escrow $2 million before it would consider the rent request. 31 HUD argues that a holding in Village's favor would mean that HUD has the duty to pay for all of a property's maintenance expenses, thus giving owners the incentive to neglect the maintenance needs of their property. We disagree. This decision has no bearing on those cases where a property owner has negligently permitted the property to deteriorate or has misused its rental income in a way that has caused the maintenance problem. As noted supra, rental increase decisions are discretionary and are generally unreviewable by the courts. In this case, however, HUD acted arbitrarily and capriciously when it refused to abide by its legal obligation to consider a rental increase request from a non-negligent owner and instead demanded a $2 million cash infusion and then declared the property in default for those very reasons. IV. DUE PROCESS VIOLATION 32 Village also argues that HUD officials violated due process by abating a single Section 8 subsidy payment. In May 1995, a HUD inspection of Mockingbird revealed that 173 out of 200 units failed HUD's Housing Quality Standard ("HSQ") review. Consequently, HUD gave Mockingbird 30 days to repair the units or face abatement of its Section 8 subsidies. A follow-up inspection revealed that all but 19 of the units were repaired; thus, HUD abated its subsidy accordingly. The abatement, which totaled $7,594, lasted only one month (August 1995) as the remaining 19 units later passed inspection. According to Village, HUD officials falsified the inspection reports that formed the basis of HUD's decision to abate. In addition, Village claims that "[n]one of the cited deficiencies justified abating the Section 8 payments." 33 The HAP contract gives HUD complete discretion regarding decisions to reduce Village's Section 8 subsidy. See Housing Assistance Payments Contract, §§ 26 (b)(2)(b) (stating that HUD may "[r]educe or suspend housing assistance payments until the default under this Contract has been cured to the satisfaction of HUD"). As with decisions whether to grant or deny rent increase requests, see supra, HUD's exercise of discretion with respect to HUD's abatement decision is unreviewable.14 The district court correctly granted summary judgment for HUD on this issue. CONCLUSION 34 Village's request for an injunction and mandamus is now moot because Mockingbird was sold at a foreclosure sale, transferred to the City of Bryan, and razed. Village's declaratory judgment request, however, still presents a live controversy. Because we find that HUD acted arbitrarily and capriciously in declaring Village in default after it demanded that Village pay $2 million before considering Village's rent increase request, we reverse the district court's grant of summary judgment. Upon remand, the district court should issue Village's requested declaratory judgment consistent with this opinion. 35 Appeal DISMISSED AS MOOT in part, AFFIRMED in part, and REVERSED in part. Notes: 1 Section 221(d)(3) requires owners to be "regulated or supervised . . . by the Secretary under a regulatory agreement or otherwise, as to rents, charges, and methods of operation, in such form and in such manner as in the opinion of the Secretary will effectuate the purposes of this section." 2 HUD may exercise these remedies only if it holds the note. If the lender still holds the note, HUD can notify the lender of the default and request that it accelerate the mortgage and foreclose, or request that the note be assigned to HUD so it can do so. 3 12 U.S.C.A. §§ 1747c states: Prior to approving the initial or any subsequent rent schedule pursuant to this section, the Secretary shall find that such schedule affords reasonable assurance that the rents to be established thereunder are (1) not lower than necessary, together with all other income to be derived from or in connection with the project, to produce reasonably stable revenues sufficient to provide for the payment of the operating expenses, the minimum annual amortization charge, and the minimum annual return; and (2) not higher than necessary to meet the need for dwellings for families of moderate income. 4 On November 17, 1995, the original lender assigned the note and mortgage to HUD and collected the insurance proceeds. Thus, HUD had the same remedial rights as the original lender. 5 The court alternatively held that, even if reveiwable, Village failed to show that HUD's actions were arbitrary and capricious. 6 The City of Bryan paid $10 for the property. That HUD was authorized to sell the property to the City of Bryan is not in dispute: "HUD may negotiate the sale of any project to an agency of the federal, State, or local government." 24 C.F.R. 290.13(a). 7 At oral argument, HUD represented to this court that it owned the property and had spent several million dollars renovating it when, in fact, it had already transferred the property to the City of Bryan several months before. 8 In fact, if Village's mandamus request had not been mooted by the transfer of Mockingbird to the City of Bryan, Village would have been entitled to a mandamus to "require [HUD] to take action upon [the] matter, without directing how it shall act." Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1999) (quoting Attorney General's Manual on the Administrative Procedure Act, at 108 (1947)); see also 5 U.S.C. §§ 706(1) ("The reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed."); N.A.A.C.P. v. Secretary of Hous. and Urban Dev. 817 F.2d 149, 160 (1st Cir. 1987). 9 Albert Cason, HUD's Houston Director of Multi-Family Housing, testified that rental revenues pay for the costs of complying with the Regulatory Agreement, including 1) the reserve fund for replacements, Regulatory Agreement 2(a); 2) the residual receipts fund, id. at 2(c); 3) the cost of producing and submitting the property's annual financial report, id. at 9(e); and, 4) the costs of the management contract, id. at 9(a). 10 In January 1988, a HUD inspection indicated that the HUD-approved rent schedule was insufficient to satisfy Mockingbird's needs. See Management Review Questionnaire, January 27, 1988. Seven years later, (and one month before Village requested the rent increase request involved in this case), a HUD Management Review Report also stated that the HUD-approved rent schedule was insufficient to meet Mockingbird's needs. See Management Review Summary Sheet, May 3, 1995. 11 In 1990, Village requested a 15% rent increase, but HUD approved a 10.4% increase. In 1993, Village requested an 18% increase, but HUD approved only a 12% increase. In 1994, Village requested a 15% increase, but HUD granted only a 7% increase. The last time Village requested a rent increase, in 1995, Village requested a 29% increase, but HUD refused to consider the request unless Village first escrowed $2 million. 12 Although HUD now accuses Village of poorly maintaining Mockingbird, there is a dearth of evidence to support its claim. At most, the record reflects a concern by HUD that Mockingbird's maintenance staff was inexperienced. The record does not evince, however, the sort of wide-spread mismanagement suggested by HUD. In fact, the record reveals the opposite. For instance, in a letter written to Village less than two weeks before HUD became a mortgagee in possession, HUD conceded that it "has no current problems with the performance of the Management Company because it was presumed the company was not properly funded to effect appropriate repairs." Letter from Albert Cason, HUD Director of Multi-Family Housing, to Dean Earle Ross, General Partner, Christopher Village Limited Partnership (November 20, 1995); see also Deposition of Albert Cason, 286 (October 24, 1996) (testifying that the cause of Mockingbird's decline was not the management, but the lack of money to repair the property); HUD Management Review, Part A, A-1 (May 3, 1995) (finding that, although Mockingbird is in poor condition, "on-site management appears to be earnestly trying to make corrections with the funds and training allocated"). 13 Furthermore, HUD's motive in refusing to consider Village's rent request was suspect. Internal HUD e-mail showed that, for several months prior to declaring Village in default, HUD officials planned to force Mockingbird into default and thus obtain the property. Responding to one suggested course of action, one HUD official stated: I don't think these are the same courses of action, but are parallel. They'll attempt possession through a deed in lieu; conduct the inspection and notice the owner in case they need a regulatory default and begin foreclosure as soon [as] the loan is assigned (if it[`]s not). Whichever action is completed first will have accomplished the desired goal: possession of the property, the quickest way possible. E-Mail from Albert B. Sullivan to Kenneth F. Hannon et al. (April 24, 1995). 14 The documents that Village proffers as proof of falsified reports are immaterial. HUD could not have possibly relied upon these documents in deciding to abate the August payment because all of the documents pre-date HUD's June 15, 1995, re-inspection that formed the basis of the abatement.

861 F.2d 728 Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Robert CRISTIA, Petitioner,v.DEPARTMENT OF JUSTICE, Respondent. No. 88-3152. United States Court of Appeals, Federal Circuit. Sept. 21, 1988. Before PAULINE NEWMAN, ARCHER and MICHEL, Circuit Judges. PER CURIAM. DECISION 1 Robert Cristia appeals the final decision of the Merit Systems Protection Board, Docket No. CH07528610640 (January 28, 1988), sustaining the Department of Justice, Bureau of Prisons' (agency's), demotion of Cristia from Supervisory Correctional Officer, GS-11, to Correctional Officer, GS-8, for the use of unnecessary force on a restrained inmate. We affirm. OPINION 2 We have reviewed the board's findings and have found that they are supported by substantial evidence and they are not in any respect arbitrary, capricious, an abuse of discretion, or contrary to law. See Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). 3 Cristia asserts that the board committed error when in its opinion it used the words "inmate abuse" instead of the actual title of the sustained charge, "use of unnecessary force on a restrained inmate." However, when the record is viewed as a whole, it is apparent that the board reaffirmed the demotion penalty in light of the agency's sustained charge of use of unnecessary force on an inmate, with full understanding what the charge was. 4 The board's opinion begins by explicitly stating the agency's sustained charge was "[use of] unnecessary force on a restrained inmate." The board concludes that "the agency-imposed penalty of demotion does not exceed the bound of reasonableness for the sustained charge...." This language clearly indicates that the board evaluated the penalty with reference to the agency's sustained charge. Nor did its use of the short-hand label "inmate abuse" indicate to the contrary. 5 Cristia also alleges that the board's affirmance of the agency's penalty was inappropriate because the board did not sustain one of the agency's charges. According to the agency's penalty guide, penalties for the first offense of physical abuse of an inmate or for use of insulting, abusive, or obscene language to or about an inmate range from an official reprimand to a removal. Since demotion is within this range, it would have been within the board's power to impose such a penalty for either offense or for both offenses. 6 When an administrative judge does not sustain all of the charges against an employee, the administrative judge must decide whether the sustained charge still merits the penalty imposed by the agency. See Douglas v. Veterans Administration, 5 M.S.P.B. 313, 334 (1981). In this case, the board correctly applied the law, by overturning one charge but analyzing the penalty for the remaining charge by applying relevant Douglas factors. In concluding that the evidence was still sufficient to uphold Cristia's demotion, the board did not abuse its discretion. 7 Cristia argues that the Douglas criteria were not correctly applied by the agency or board. Specifically, he alleges that the board should have applied more Douglas factors than it did. However, when the board reviews an agency penalty to determine whether the penalty is appropriate and reasonable under all relevant circumstances of the case, the board is not required to apply all twelve of the Douglas factors in a mechanical fashion; rather, it may choose factors which are suitable to the case at hand. Nagel v. Department of Health and Human Services, 707 F.2d 1384, 1386 (Fed.Cir.1983). In this case the board explained which relevant factors it used to determine whether the agency's penalty was excessive. This is all the board is required to do. Id. The board's analysis of factors relating to Cristia's position as supervisor and the loss of confidence of Warden Jenkins in Cristia, his authorized substitute, clearly demonstrate that the board did not act arbitrarily or capriciously or abuse its discretion. 8 Accordingly, we affirm.

354 F.3d 1229 Charlie LEE; Jean Lee; Don Lee, also known as "Bebo"; Linda Davis; Jimmie Coody; Martha Coody; Bob A. Jones; Elizabeth Jones; Laura Jones; Robert E. Jones, also known as "Bobby"; Patricia Jones; A.S. Elliott, also known as "Tex"; Jannifer Elliott; Dwayne F. Stewart, also known as "Slim"; Alvaree R. Stewart; Innis Lewis; Bryan Prather; Judy J. Prather; Lucy Jane Schafer; Jonna Lou Schafer; Lincoln Permittees' Association, a non-profit organization on behalf of itself and its members; and Otero County Cattleman's Association, a non-profit organization on behalf of itself and its members, Plaintiffs-Appellants,v.UNITED STATES AIR FORCE; F. Whitten Peters, Secretary of the United States Air Force; Brigadier General Lake, Commander, 49th Fighter Wing, Holloman Air Force Base; United States Department of Defense; William S. Cohen, Secretary of Defense, acting for the German Air Force and Colonel Eckard Sowada, Defendants-Appellees. No. 02-2306. United States Court of Appeals, Tenth Circuit. January 12, 2004. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Frank M. Bond (Faith Kalman Reyes with him on the briefs), The Simons Firm, LLP, Santa Fe, NM, for Plaintiffs-Appellants. Joseph D. Jacobson, Lt. Col., United States Air Force, Arlington, VA (David C. Iglesias, United States Attorney, Albuquerque, NM; Raymond Hamilton, Assistant United States Attorney, Albuquerque, NM; Charles C. Killion, Major, Special Assistant United States Attorney, United States Air Force, Arlington, VA; Kenneth M. Theurer, Major, United States Air Force, Arlington, VA, on the brief), for Defendants-Appellees. Before TACHA, Chief Circuit Judge, ANDERSON and HENRY, Circuit Judges. STEPHEN H. ANDERSON, Circuit Judge. 1 This case involves an environmental law challenge to United States Air Force ("U.S. Air Force") plans to permit the German Air Force to station, for training purposes, thirty fighter aircraft at Holloman Air Force Base ("Holloman"), in addition to the twelve already there. The suit was brought by ranchers and livestock raising associations (referred to collectively as "Appellants") located near Holloman, claiming, among other things, multiple violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-70f, by the U.S. Air Force, the Department of Defense, and various U.S. Air Force and Department officials.1 The district court affirmed the U.S. Air Force's final agency decision on the grounds that it was "neither arbitrary, capricious, nor without reasonable foundation." Lee v. U.S. Air Force, 220 F.Supp.2d 1229, 1249 (D.N.M. 2002). 2 On appeal, Appellants argue that the U.S. Air Force, in carrying out the procedures required under NEPA to assess the environmental impact of its proposed action, failed to consider reasonable alternatives, failed to assess adequately the potential impact on property values in surrounding areas, used a flawed methodology to analyze noise impacts, used outdated studies to assess livestock impacts, and failed to consider the impact of aerial refueling or the potential secondary effects of aircraft accidents. They further argue that the U.S. Air Force's agreement with the German Federal Ministry of Defense ("German Defense Ministry") to expand German Air Force training at Holloman is invalid because the U.S. Air Force did not follow the procedural requirements imposed by the Case-Zablocki Act, 1 U.S.C. § 112b, for international agreements. BACKGROUND 3 Holloman is located in southern New Mexico, approximately seven miles west of Alamagordo and eighty-five miles northeast of El Paso, Texas. The base is adjacent to the White Sands Missile Range as well as White Sands National Monument. The United States and Germany began negotiations to establish the German Air Force training program at issue here in 1992. Initially, the United States offered to allow the beddown of up to forty-two German Air Force Tornado PA-200 aircraft at Holloman. However, "[d]ue to political considerations and funding limitations, the GAF [(German Air Force)] decided to pursue the program in two stages-Holloman I and Holloman II." Appellants' App. at 336b. In the Holloman I stage, the German Air Force would move twelve Tornados to Holloman, to be followed by thirty additional Tornados in the Holloman II stage. 4 Before giving final approval to an agreement finalizing these negotiations, the U.S. Air Force analyzed the environmental impact of its proposed action in an environmental assessment ("EA"), issued in February 1993. The EA considered only the impact of Holloman I and concluded that there would be no significant environmental impact. The U.S. Air Force thus issued a finding of no significant environmental impact ("FONSI"), which allowed it to avoid preparing a more detailed environmental impact statement ("EIS"). 5 Subsequently, on May 20, 1994, the U.S. Air Force and the German Defense Ministry signed a Memorandum of Agreement ("Agreement") implementing Holloman I. The Agreement authorized a German Air Force Tactical Training Establishment ("TTE") at Holloman and provided for the beddown of twelve Tornados, accompanied by German Air Force personnel. The twelve Tornados were relocated to Holloman in May 1996. 6 According to U.S. Air Force documents in the administrative record, the German Air Force identified a need for additional low-altitude flight training after the beddown occurred, in the course of preparing specific Tornado mission training plans. Appellees' Supp.App. at 25. This, in combination with the need to "compensate for increasingly limited access to White Sands Missile Range ... restricted airspace," id., led the U.S. Air Force to consider modifying Holloman's existing military training routes (MTRs) and military operations areas (MOAs) and establishing an oval aerial refueling track. Under its proposal, the U.S. Air Force would convert rarely-used air-launched cruise missile routes into routes for low-altitude (down to 100 feet above ground level) military aircraft training, and establish a new MOA, with operating altitudes as low as 300 feet above ground level, south of the existing MOA area. The U.S. Air Force prepared an EA and issued a FONSI in connection with this proposal in June 1997. 7 FAA approval of these airspace modifications was pending when, in May 1998, the U.S. Air Force and the German Defense Ministry amended their 1994 Agreement in order to implement the Holloman II stage. The amendments indicated that the German Air Force TTE at Holloman would be expanded through the beddown of thirty additional German Air Force Tornados and a substantial increase in the number of permanent German Air Force training and logistics personnel. Appellants' App. at 344. Under the expansion, Tornado aircrews could participate in five different training courses that would include training in takeoffs and landings, the use of terrain-following radar for low-level navigation on MTRs, air-to-ground training, air-intercept training, and aerial refueling. The amended Agreement indicated that its implementation was subject to a final decision by the U.S. Air Force following completion of the NEPA process. Id. 8 The U.S. Air Force decided to analyze the environmental impact of the German Air Force TTE expansion by preparing a full EIS. An April 1997 U.S. Air Force document suggests that an EIS was necessary "in order to identify a potential new bombing site" because the Tornado air-to-ground training contemplated by the proposed expansion would increase the number of practice bombings to several thousand per year. Id. at 336b. The EIS considered three options for a new target complex ("NTC") to accommodate the proposed increase in practice bombings. The new NTC, if established, would be used for bombings using inert or subscale munitions while live munitions deliveries would continue to be restricted to the Red Rio Live Drop Target on the White Sands Missile Range. The preferred option was to construct the NTC on the West Otero Mesa portion of McGregor Range. The other options were to construct the NTC on the Tularosa Basin portion of McGregor Range or to use only existing ranges. Because the FAA had not yet approved the airspace modifications assessed in the 1997 EA, the EIS took into account the different impacts that would result depending on whether or not the modifications were implemented. In addition, the EIS considered a no-action alternative, under which the German Air Force TTE expansion would not occur. Appellees' Supp.App. at 45. 9 The U.S. Air Force solicited public comments on the proposed expansion at public hearings held during the initial EIS scoping process and through written announcements after the draft EIS was released in June 1997. A final EIS was completed in April 1998. On May 29, 1998, the U.S. Air Force gave final approval to the German Air Force TTE expansion and the preferred West Otero Mesa training option in a Record of Decision ("ROD"), explaining that although the no-action alternative would result in the minimum environmental impact, it "would not provide the training, proficiency, and combined action capabilities needed to achieve the military-to-military strategy and goals." Id. at 214. The existing range option would provide only "minimally adequate training for GAF aircrews .... [and] has the potential to significantly degrade current U.S. Air Force operations and training." Id. In contrast, 10 [t]he West Otero Mesa training option provides the maximum training opportunity for both the GAF and the U.S. Air Force. In addition to the greater opportunity for training, this option also provides for the greatest training versatility and efficiency. Finally, NTC construction on the West Otero Mesa will disturb a significantly smaller geographical area compared to the Tularosa Basin training option and will involve a fraction of the cost. 11 Id. at 213. The ROD described the potential environmental impacts of the decision, including "increased aircraft-related noise in some portions of the affected airspace, overflight disturbance to land use, and slight to moderate impacts to biological resources" but concluded that mitigation measures would likely "avoid or adequately minimize these potential impacts." Id. at 214. 12 As indicated above, Appellants challenged the U.S. Air Force's ROD as a final agency action, pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-06, and alleged violations of NEPA and the Case-Zablocki Act. In support of their NEPA claims, Appellants offered three expert affidavits that were not part of the administrative record. One of these, by Mr. Armand Smith, was offered to support Appellants' assertion that the EIS should have included a concrete appraisal of the potential decrease in property values resulting from the proposed action. Two others, by Dr. William J. Weida and Dr. Karl D. Kryter, were offered to support Appellants' argument that the U.S. Air Force used a flawed methodology in performing its analysis of noise impacts resulting from the proposed action. 13 The district court first held that these expert affidavits were not eligible for admission into evidence.2 The district court then rejected Appellants' claims, holding that the U.S. Air Force's final EIS complied with NEPA and that Appellants had no standing to claim a violation of the Case-Zablocki Act.3 Appellants brought this appeal challenging all three of these holdings. DISCUSSION 14 When reviewing agency action, we accord no deference to the district court's decision. Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1021 (10th Cir.2002); Webb v. Hodel, 878 F.2d 1252, 1254 (10th Cir.1989). Rather, we apply "the same standard of review to the [administrative] record as did the district court." Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1164 (10th Cir.2002), modified, 319 F.3d 1207 (10th Cir.2003). The APA "empowers a reviewing court to hold unlawful and set aside [final] agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. (citing 5 U.S.C. § 704). This standard "is a deferential one; administrative determinations may be set aside only for substantial procedural or substantive reasons." Id. 15 We consider Appellants' NEPA and Case-Zablocki claims in turn below. Because Appellants' claim in regard to their extra-record submissions is closely tied to their NEPA challenge, we consider that claim in the course of our NEPA discussion. A. NEPA Claim 16 The National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-70f, "prescribes the necessary process" by which federal agencies must "take a `hard look' at the environmental consequences" of their proposed actions. Utahns for Better Transp., 305 F.3d at 1162-63. For proposed "major Federal actions significantly affecting the quality of the human environment," agencies must prepare an environmental impact statement ("EIS") in which they consider the environmental impact of the proposed action and compare this impact with that of "alternatives to the proposed action." See 42 U.S.C. § 4332(2)(C). Agencies "need not prepare a full EIS," however, if they initially prepare the less detailed environmental assessment ("EA") and, based on the EA, issue a "finding of no significant impact" ("FONSI"), concluding that the proposed action will not significantly affect the environment. S. Utah Wilderness Alliance v. Norton, 301 F.3d 1217, 1237 (10th Cir. 2002), cert. granted, 72 U.S.L.W. 3105, 3299, 3307 (U.S. Nov. 3, 2003) (No. 03-101) (internal quotation marks omitted). 17 The infusion of NEPA's "`action-forcing' procedures" into the ongoing programs and actions of the federal government serves two related goals: By requiring agencies to gather and consider "detailed information concerning significant environmental impacts," it "ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348-49, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). In addition, by making the relevant information available to the public, it both assures the public that the agency "`has indeed considered environmental concerns in its decisionmaking process'" and, "perhaps more significantly, provides a springboard for public comment." Id. (quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). 18 However, it is well established that NEPA "does not mandate particular results," Utahns for Better Transp., 305 F.3d at 1162 (citing Robertson, 490 U.S. at 350-51, 109 S.Ct. 1835), nor does it require agencies "to elevate environmental concerns over other valid concerns," id. at 1162-63 (citing Balt. Gas & Elec., 462 U.S. at 97, 103 S.Ct. 2246). Because NEPA imposes procedural rather than substantive requirements, "[t]he role of the courts in reviewing compliance with NEPA is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious." Id. at 1163 (internal quotation marks omitted). "We apply a rule of reason standard (essentially an abuse of discretion standard) in deciding whether claimed deficiencies in a [final] EIS are merely flyspecks, or are significant enough to defeat the goals of informed decisionmaking and informed public comment." Id.; see also Custer County Action Ass'n v. Garvey, 256 F.3d 1024, 1035 (10th Cir.2001), cert. denied, 534 U.S. 1127, 122 S.Ct. 1063, 151 L.Ed.2d 967 (2002). 19 As indicated above, Appellants object to the U.S. Air Force's EIS on a number of grounds. We address each of these grounds in turn. 1. Consideration of Alternatives 20 NEPA requires an EIS to include discussion of "alternatives to the proposed action." 42 U.S.C. § 4332(2)(C)(iii). Appellants argue that the final EIS did not comply with this requirement because it failed to discuss air force bases other than Holloman as alternative sites for the German Air Force TTE expansion. According to Appellants, "[t]here is no legitimate reason why other bases could not be considered for the beddown of the combined 42 Tornado aircraft." Appellants' Br. at 17. Appellants also argue that the U.S. Air Force's initial decision, in 1992, "to beddown a small number of aircraft [was made in order] to avoid having to prepare an initial EIS" so that the U.S. Air Force could establish as a "foregone conclusion" the premise that any additional German Air Force aircraft would also be bedded down at Holloman. Id. In response, the U.S. Air Force argues that "no other base was considered" because "[n]o other base was reasonable," and that this was just as true in 1992 as it was in 1998. Appellees' Br. at 11. 21 The consideration of alternatives to a proposed action is "the heart of the environmental impact statement." 40 C.F.R. § 1502.14; see Colo. Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1174 (10th Cir.1999); Ass'ns Working for Aurora's Residential Env't v. Colo. Dep't of Transp., 153 F.3d 1122, 1130 (10th Cir. 1998); All Indian Pueblo Council v. United States, 975 F.2d 1437, 1444 (10th Cir. 1992). However, NEPA does not require an agency to analyze "the environmental consequences of alternatives it has in good faith rejected as too remote, speculative, or ... impractical or ineffective." Id. at 1444 (internal quotation marks omitted); see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 194-95 (D.C.Cir. 1991) ("`[T]he term "alternatives" is not self-defining.' ... [D]iscussion [of alternatives] must be moored to `some notion of feasibility.'" (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 551, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978))). 22 Thus, Council on Environmental Quality (CEQ) regulations implementing NEPA require agencies to "[r]igorously explore and objectively evaluate all reasonable alternatives." 40 C.F.R. § 1502.14(a) (emphasis added). U.S. Air Force regulations4 further specify that "`[r]easonable' alternatives are those that meet the underlying purpose and need for the proposed action and that would cause a reasonable person to inquire further before choosing a particular course of action." 32 C.F.R. § 989.8(b). 23 Here, we conclude that the U.S. Air Force's decision to eliminate other bases from consideration in the 1998 EIS was not unreasonable in light of the stated purpose and need for the German Air Force TTE expansion. The EIS explains that the proposed action is intended "to further support" the 1994 Agreement between the U.S. Air Force and the German Defense Ministry, to "demonstrate[] continued U.S. commitment to NATO allies" despite the reduction of a U.S. military presence in Europe, to "capitalize[] on the substantial infrastructure investments the GAF has already made at Holloman," to "provide [] a desert/mountainous terrain training location not otherwise available to GAF aircrews in Germany," and to "allow Tornado expertise to be shared among students in different courses [in order] to enhance the training environment and produce better-trained students."5 Appellees' Supp.App. at 69-70. In effect, the proposal at issue in 1998 was the expansion of the German Air Force TTE at Holloman, pursuant to the amended Agreement. As such, it was not unreasonable for the U.S. Air Force to confine its consideration of alternatives to those available at Holloman. 24 While Appellants argue that the U.S. Air Force should have separated its analysis of alternative sites for a NTC from those available for the German Air Force TTE expansion, it is clear that the U.S. Air Force considered the new NTC to be part of the proposed expansion and in fact the aspect of the expansion that made an EIS necessary. The U.S. Air Force's limitation of its NTC alternatives to those available at Holloman therefore did not violate NEPA. 25 The record does not support Appellants' further assertion that the U.S. Air Force decision to bed down only twelve Tornados at first allowed it to circumvent NEPA's requirement to consider alternatives by preparing an EA instead of an EIS. Indeed, U.S. Air Force regulations note that the obligation to discuss reasonable alternatives "applies equally to EAs and EISs." 32 C.F.R. § 989.8(c). In connection with this obligation, the regulations further state that the U.S. Air Force may "expressly eliminate alternatives from detailed analysis, based on reasonable selection standards (for example, operational, technical, or environmental standards suitable to a particular project)," as long as these standards are not "so narrowly define[d]... that they unnecessarily limit consideration to the proposal initially favored by proponents." Id. § 989.8(c). 26 In accord with these regulations, the 1992 EA eliminated bases other than Holloman from detailed analysis. It explained, in a "history of the formulation of the alternatives," that the U.S. Air Force identified Holloman as the only feasible site for the potential twelve-Tornado beddown through a "narrowing process," based on the following criteria: 27 The airbase must be an existing active duty base with facilities such that construction would be held to a minimum, both to keep costs to a minimum and to allow for rapid start-up. Facilities needed... would include sufficient available ramp space for parking, buildings for work space and maintenance, and available housing for personnel. As pilots... would require tactical training, suitable air-to-air and air-to-ground ranges should be near the base. Also, as ... training would involve bringing personnel to the U.S. for a short time, the flying environment should allow for the maximum number of flying days uninterrupted by weather.... In addition to the above criteria, the GAF requested that Holloman AFB, New Mexico specifically be evaluated due to it being the beddown location for an existing GAF F-4 training unit6 and its proximity to German Army training conducted at Fort Bliss in El Paso, Texas. 28 Appellees' Supp.App. at 18. As described in the EA, the U.S. Air Force eliminated other air force bases as alternatives because those bases were already operating near full capacity, their use would require extensive construction to accommodate the German Air Force, they were located in areas where weather would significantly curtail the number of days available for training, or they were scheduled for closure. Id. at 19. Although Holloman, the preferred site, turned out to be the only feasible site, the criteria used by the U.S. Air Force to make this determination appear reasonable, and there is no indication that the U.S. Air Force unnecessarily eliminated other bases as alternatives. 29 The 1998 EIS refers back to this initial decisionmaking process. Id. at 94. Significantly, we find no indication in the record that the U.S. Air Force's conclusion in 1992 that Holloman was the only feasible site for the initial beddown would have been different if the U.S. Air Force had considered the beddown of forty-two Tornados rather than twelve. Further, there is no indication that new potential sites meeting the U.S. Air Force's criteria had become available by the time of the 1998 EIS. Under these circumstances, the fact that the U.S. Air Force approved the establishment of a German Air Force TTE in a series of stages rather than in a single stage does not indicate that the U.S. Air Force circumvented NEPA's requirements. 30 Appellants urge us to find this situation analogous to that in Davis v. Mineta, 302 F.3d 1104 (10th Cir.2002). In Davis, we held that an agency's decision to issue a FONSI rather than prepare an EIS was arbitrary because the agency had obligated itself contractually to issue a FONSI before it conducted an EA, making it clear that the agency had "prejudged the NEPA issues." Id. at 1112. Here, in contrast, the U.S. Air Force did not sign the original Agreement with the German Defense Ministry until after it had completed the 1992 EA and issued a FONSI. The 1994 Agreement only obligated the U.S. Air Force to accept a beddown of twelve Tornados. The 1998 amended Agreement explicitly stated that it would not go into effect unless the U.S. Air Force approved the action following completion of all NEPA requirements. There is thus no indication here that the U.S. Air Force prejudged the NEPA issues. 31 We therefore hold that the 1998 EIS's limitation of its alternatives analysis to those available at Holloman does not violate NEPA. 2. Consideration of Impacts 32 Appellants' remaining NEPA-related arguments concern the EIS's impacts analysis. NEPA requires an EIS to include an analysis of "the environmental impact of the proposed action," 42 U.S.C. § 4332(2)(C)(i), including ecological, aesthetic, historical, cultural, economic, social, and health impacts, whether direct, indirect, or cumulative, 40 C.F.R. § 1508.8. We address each of the alleged deficiencies in the EIS's impacts analysis below. 33 a. Economic Impacts 34 First, Appellants challenge the EIS's assessment of economic impacts. They specifically contest its "conclusory determination" that any changes in value of rural properties surrounding Holloman due to the increased overflights accompanying the proposed German Air Force TTE expansion were impossible to quantify. They argue that the U.S. Air Force should at least have attempted to assign a dollar value to these changes, or discussed other failed attempts, before concluding that quantification was impossible. 35 The final EIS's discussion of the proposed action's potential impact on land values was included in response to public comments raising the issue. The EIS noted that, in the rural Holloman surroundings, "changes in daily aircraft overflight may or may not be readily discernible to the ground-based observer," and even "[w]here such changes can be discerned, existing variability in land value due to locations and improvements make it impossible to quantify any potential difference that might be associated with aircraft overflight." Appellants' App. at 156. The EIS concluded that "given the rural nature of the area and the relatively sporadic nature of overflights, changes in overflight would not be expected to produce measurable impacts on the economic value of the underlying land." Id. The EIS did not cite specific scientific support for the assertion that changes in land value were "impossible to quantify." Rather, it referred to "documentation" from "some locations [in the United States], particularly around airports," where changes in land value resulting from increased overflights had been difficult to quantify. 36 Under the circumstances here, we do not believe the EIS's treatment of the land valuation issue constituted a violation of NEPA, despite the EIS's failure to cite by name or discuss in detail the "documentation" it relied on for its conclusion that valuation was impossible. An agency's obligation in regard to "incomplete or unavailable information" is governed by the CEQ regulations.7 40 C.F.R. § 1502.22. An agency "must obtain and include in the EIS information on `reasonably foreseeable significant adverse impacts'" that are essential to a reasoned choice among alternatives "if the costs of obtaining such information are not exorbitant." Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1523 (10th Cir.1992). "If the costs of obtaining the information are exorbitant `or the means to obtain it are not known' the agency must follow four specific steps." Id. (referring to the four steps outlined in 40 C.F.R. § 1502.22(b)). These steps include the obligation to summarize "existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts." 40 C.F.R. § 1502.22(b)(3). Again, however, these steps are only required in regard to "reasonably foreseeable significant adverse impacts." Id. § 1502.22(b). 37 Here, it is clear from the record that the U.S. Air Force did not consider decreased land values a reasonably foreseeable significant adverse impact; rather, it concluded that no measurable decrease in land values was likely to occur. The evidence in the record supports this conclusion. The EIS indicates that implementation of the proposed action would increase the average number of daily sorties flying out of Holloman from fifty-nine to seventy-six, and the number of touch-and-go operations and low approaches from 112 to 157 per day. This would result in an increase in the daily use of each MTR and MOA of between one and three sorties per day. Appellants' App. at 130. An MTR's width, which may be sixty or more miles, would further disperse the impact of the increased use. Id. at 156. While Appellants note that noise levels over some private land would reach 80 dB, they do not specify the nature of this land's current use, and the record shows that the noise in those areas was already at the 75 dB level without the proposed action. Id. at 132. We hold that the U.S. Air Force's conclusion that the proposed action's impact on property values was minimal does not violate the rule of reason. The U.S. Air Force was therefore not obligated to take the further steps required under 40 C.F.R. § 1502.22. See Colo. Envt'l Coalition, 185 F.3d at 1172 (holding that the Forest Service had no obligation under 40 C.F.R. § 1502.22 to obtain unavailable information that was not "`essential' to reasoned decision making"). 38 Appellants argue that the affidavit of Mr. Armand Smith, a professional real estate appraiser, compels a contrary conclusion. We disagree. As indicated above, Mr. Smith's affidavit is part of the extra-record evidence that the district court held inadmissible. While judicial review of agency action is normally restricted to the administrative record, we have recognized that consideration of extra-record materials is appropriate in "extremely limited" circumstances, such as where the agency ignored relevant factors it should have considered or considered factors left out of the formal record. Am. Mining Cong. v. Thomas, 772 F.2d 617, 626 (10th Cir.1985). To be sure, where, as is often the case in the NEPA context, we are faced with an agency's technical or scientific analysis, an initial examination of the extra-record evidence in question may aid us in determining whether these circumstances are present. As a number of other circuits have explained, such an initial review may illuminate whether "an EIS has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism ... under the rug." Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526-27 (9th Cir.1997) (internal quotation marks omitted); accord Sierra Club v. Peterson, 185 F.3d 349, 370 (5th Cir.1999), vacated on other grounds on reh'g, 228 F.3d 559 (5th Cir.2000); Valley Citizens for a Safe Env't v. Aldridge, 886 F.2d 458, 460 (1st Cir.1989); Suffolk County v. Sec'y of Interior, 562 F.2d 1368, 1384-85 (2d Cir.1977); see also Sabine River Auth. v. U.S. Dep't of Interior, 951 F.2d 669, 678 (5th Cir.1992). 39 Here, neither the record nor an initial review of Mr. Smith's affidavit convinces us that there are gaps or inadequacies in the EIS that would make admission of extra-record evidence appropriate. Mr. Smith asserts that "[l]ands beneath an MTR ... may suffer a loss in value," that "it is not difficult to calculate the decrease in land value as a result of overflights," and that the decrease in value would occur regardless of the number of overflights or their sporadic nature. Appellants' App. at 396-97. In essence, Mr. Smith simply presents an expert opinion conflicting with the U.S. Air Force's conclusion that a decrease in value is not reasonably foreseeable. It is well established that "`agencies are entitled to rely on their own experts so long as their decisions are not arbitrary and capricious.'" Custer County, 256 F.3d at 1036 (quoting Colo. Envtl. Coalition, 185 F.3d at 1173 n. 12). We therefore affirm the district court's order to strike this affidavit as extra-record evidence. 40 b. Noise Impacts 41 Appellants cite a string of alleged deficiencies in the EIS's noise analysis, including, for example, use of outdated methodology and data, reliance on computer-based simulation programs rather than actual measurement on the ground, failure to take into account the rural nature of the area, failure to distinguish between MOAs and MTRs when assessing impacts, considering 65 dB rather than 55 dB the threshold for significant noise impact on humans, and considering 80 dB an acceptable noise level for livestock. Appellants' Br. at 23-28. 42 We believe, however, that the noise analysis in the EIS is adequate. As explained in the EIS, the U.S. Air Force used three different noise metrics to analyze the noise impact of the proposed action. Appellees' Supp.App. at 118. It used the maximum sound level ("Lmax") metric (measuring the maximum noise an aircraft would produce when flying directly overhead) and the Sound Exposure Level ("SEL") metric (combining the maximum sound level with the duration of the overflight noise) to tabulate the noise typically produced by the five major types of aircraft used at Holloman in a single overflight at different flight altitudes. Id. at 119. It then used the Onset Rate Adjusted Monthly Day-Night Average Sound Level ("Ldnmr") metric to assess the overall noise impact produced by the proposed expansion at Holloman. This metric makes adjustments to take into account increased noise impacts during the night or due to the "startle effect" of high-speed, low-altitude fighter aircraft flights. The U.S. Air Force computed Ldnmr by means of a MRNMAP computer-simulation noise model, using measured aircraft noise collected by the Department of Defense for such purposes together with Holloman's projected training schedules for the proposed action. Id. at 125. The EIS cites studies published in 1995 and 1996 that validate the reliability of such aircraft noise model predictions. Id. at 127. 43 The EIS explains its choice of 65 dB as the noise threshold for humans by noting that this threshold is typically used for assessing noise impacts on residential areas around airports. Id. at 131. Despite this conclusion, the EIS does, in its section on land use impacts, discuss the impact of noise increases that do not reach this threshold. Id. at 144-53; see also id. at 132-33 (indicating the proposed action's noise impacts throughout the entire region). The EIS also notes one area, the McGregor Range Restricted Area R-5103, where noise levels would reach a maximum Ldnmr of 80 dB. Id. at 153. However, it explains that humans would be denied access to this area while this occurred and that this level is considered compatible with livestock uses under the Air Installations Compatible Use Zone (AICUZ) guidelines. Id. The latter conclusion is supported by studies cited in the EIS's Appendix J. Appellants' App. at 203. 44 We repeat that "`agencies are entitled to rely on their own experts so long as their decisions are not arbitrary and capricious.'" Custer County, 256 F.3d at 1036 (quoting Colo. Envt'l Coalition, 185 F.3d at 1173 n. 12). Neither the noise analysis methodology used in the EIS nor the EIS's assertions regarding the noise threshold levels for humans and livestock are arbitrary or capricious. We have previously referred to the SEL and Ldnmr metrics as "well-established and widely accepted" methodologies and upheld their use by the FAA and Air National Guard. Id., at 1035; see also City of Bridgeton v. FAA, 212 F.3d 448, 459 (8th Cir.2000) (upholding the FAA's use of cumulative noise data); Communities, Inc. v. Busey, 956 F.2d 619, 624 (6th Cir.1992) (same); Citizens Against Burlington, 938 F.2d at 200 (upholding the FAA's use of SEL and Ldnmr data); Davison v. Dep't of Defense, 560 F.Supp. 1019, 1028-29 (S.D.Ohio 1982) (upholding the U.S. Air Force's use of computer-simulated average noise levels although recognizing that this methodology did not account for the impact of a significant increase in nighttime flights). 45 Appellants have not met their burden of convincing us to do otherwise here. The extra-record affidavits of Dr. Weida and Dr. Kryter, stricken by the district court as indicated above, along with rebuttal affidavits that have been submitted by the U.S. Air Force, indicate that there is disagreement regarding the reliability of the methodology and whether it has been applied accurately in this EIS. This only demonstrates that experts disagree, which, as discussed above, is an insufficient basis for admitting extra-record evidence or for holding an EIS inadequate. We therefore affirm the district court's decision to strike these affidavits. 46 We hold that the EIS's discussion of changes in noise levels and the effects of these changes on land use provides the requisite basis for informed public comment and informed decisionmaking. 47 c. Aerial Refueling 48 Appellants claim that the EIS's noise impacts analysis failed to take into account the effect of aerial refueling operations. Appellants seem to suggest that the EIS should have addressed the impact of aerial refueling separately from its overall noise analysis. However, according to the U.S. Air Force, overflights of aircraft engaged in aerial refueling were incorporated in the calculations of Ldnmr levels, making an independent analysis unnecessary. We have no basis for contesting the U.S. Air Force's assertion, especially given the fact that the EIS openly describes aerial refueling training as one of the activities in which German Air Force aircrews would be engaged. Appellants' App. at 98. Having already upheld the EIS's use of the Ldnmr metric, we reject this additional challenge to the EIS's noise analysis. 49 d. Impacts on Livestock 50 Appellants argue that the U.S. Air Force should have "conduct[ed] a contemporary study" of the impact of low-altitude flights on livestock because the studies cited in the EIS were outdated and insufficient. Appellants' Br. at 33. Appellants cite anecdotal evidence, presented in the public hearings, which they claim demonstrates that low-altitude flights at Holloman have on occasion already caused significant disturbance to livestock. 51 We are unpersuaded that the U.S. Air Force was required to carry out its own study regarding the impact of low-level overflights on livestock. We have recognized that agencies must use the "best available scientific information" when assessing environmental impacts. Custer County, 256 F.3d at 1034. It appears that the U.S. Air Force has done so here. Appendix J of the EIS cites studies, dating from 1960 to 1996, reporting that livestock may run, buck, or be startled by sudden high (75 to 100 dB) noise levels but that livestock can adapt to regularly-occurring noise at such levels. Some of the studies suggested that low-level overflights produced a greater effect than sonic booms, and that the impact may be greater on gestating animals. The U.S. Air Force acknowledges that the number of studies addressing the effect of noise on livestock is small. However, we have no reason to believe that the studies' conclusions are inaccurate, particularly in light of other studies, also discussed in Appendix J, which reach the same conclusion in regard to bighorn sheep, bison, elk, deer, and antelope. See Appellants' App. at 202. 52 Appellants cite public hearing testimony that a horse startled by an overflight knocked over the person shoeing him and that a horse owner suspected that overflights were responsible for the deaths of a number of horses who ran over a fence at night. In response to such testimony, the U.S. Air Force expanded the EIS's Appendix J and acknowledged that low-level overflights "may or may not lead to livestock damage." Id. at 292. Appellants argue that, based on one person's testimony that overflights had harmed her ostriches, the final EIS should have cited an "army discussion" of claims submitted to the military for damage to ostriches from overflights. Appellants' Br. at 32. However, as the U.S. Air Force points out, this testimony was given by someone who lived in the vicinity of Cannon Air Force Base, not Holloman, and there is no indication any of the affected landowners around Holloman have ostriches. We conclude that the EIS's discussion of livestock impacts was sufficient. 53 e. Impacts of Aircraft Accidents 54 Appellants point to a 2002 Tornado crash near Alamagordo, which sparked a forest fire, as an indication that the EIS was inadequate for failing to discuss the environmental and economic impacts of such a fire. Appellants suggest that a supplemental EIS was needed to address these impacts in light of the dry weather predicted for 2003. We believe the U.S. Air Force adequately addressed the risk of accident in its EIS and was not required to prepare a supplemental EIS under these circumstances. The EIS acknowledged the risk of accident, described its methodology for calculating this risk, and described the results of these calculations. The fact that an accident has since occurred does not indicate that the EIS's analysis was flawed, nor does it make necessary further discussion of the secondary effects of such an accident in a supplemental EIS. "Even as to impacts that are ... reasonably foreseeable and merit inclusion [in an EIS], the []EIS need only furnish such information as appears to be reasonably necessary under the circumstances for evaluation of the project." Utahns for Better Transp., 305 F.3d at 1176. The EIS acknowledges that "fire and environmental contamination" may result from a crash and that this possibility is more likely for crashes in "highly vegetated areas during a hot, dry summer." Appellees' Supp.App. at 111. Having concluded that the risk of accident was relatively low, it was not required to describe the potential consequences of a resulting fire in further detail. B. Case-Zablocki Claim 55 Appellants argue that the U.S. Air Force should have submitted its Agreement with the German Air Force to the Secretary of State for approval, as required for "international agreements" under the Case-Zablocki Act, 1 U.S.C. § 112b(c). As indicated above, the district court dismissed Appellants' claims in regard to the Case-Zablocki Act for lack of standing. We review questions of standing de novo. Kansas v. United States, 249 F.3d 1213, 1222 (10th Cir.2001). 56 According to Appellants, the district court improperly characterized their argument regarding the U.S. Air Force's failure to comply with the Case-Zablocki Act. They state that they "do not assert an independent cause of action requiring standing under Case-Zablocki, but sought to make the district court aware that without a properly concluded International Agreement, there was no legal basis for the final NEPA analysis and ultimate ROD." Appellants' Br. at 55. Appellants cite no authority, nor have we discovered any, for their apparent suggestion that NEPA and its regulations require a reviewing court to consider whether an agency has a "legal basis" for the proposed action that triggered NEPA's requirements. Appellants' further contention that consultation with the Secretary of State would have allowed the Secretary to reject the Agreement and was thus properly "part of the consideration of suitable alternatives" under NEPA is without merit. 57 Moreover, we agree with the district court that the Case Zablocki Act itself creates no private right of action and that Appellants have no standing to challenge the U.S. Air Force's alleged violation of the Act under the APA. Assertion of a private right of action is clearly precluded by the Act's implementing regulation, which states that "[d]eviation or derogation from the provisions of [the Act] will not affect the legal validity ... of agreements concluded, will not give rise to a cause of action and will not affect any public or private rights established by such agreements." 22 C.F.R. § 181.1(b). 58 In order to have standing to challenge a violation of the Case-Zablocki Act under the APA, Appellants would have to establish that they have suffered an injury that "falls within the `zone of interests' sought to be protected" by the Act. Mount Evans Co. v. Madigan, 14 F.3d 1444, 1452 (10th Cir.1994) (internal quotation marks omitted). "`The essential inquiry is whether Congress intended for a particular class of plaintiffs to be relied upon to challenge agency disregard of the law.'" Hernandez-Avalos v. INS, 50 F.3d 842, 847 (10th Cir.1995) (quoting Mount Evans Co., 14 F.3d at 1452). The Case-Zablocki Act is evidently meant to mediate between the foreign relations powers of Congress and the President. See Dames & Moore v. Regan, 453 U.S. 654, 682 n. 10, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981). Congress clearly did not intend for any private individual to enforce the Act's provisions. 59 Having determined that Appellants have no standing to enforce the Case-Zablocki Act, we need not consider whether the Agreement did in fact constitute an international agreement subject to the Act's procedural requirements. CONCLUSION 60 For the foregoing reasons, the decision of the district court is AFFIRMED. Notes: 1 We will refer to these parties in their stance as appellees collectively as "the U.S. Air Force," relying on context to clarify whether the agency or the appellees are intended 2 The district court granted the Government's motion to strike extra-record declarations in an August 27, 2002, memorandum opinion and order. Appellants' App. at 59 3 The district court dismissed Appellants' claim under the Case-Zablocki Act and its implementing regulations in a second memorandum opinion and order dated August 27, 2002. Appellants' App. at 56. In the same order, the court also dismissed Appellants' claim that the German Air Force's navigation of United States airspace violated the Federal Aviation Act. The court denied Appellants' NEPA claim in a published memorandum opinionLee, 220 F.Supp.2d at 1231. 4 The U.S. Air Force regulations are meant to "achieve and maintain compliance with NEPA and the [CEQ] Regulations." 32 C.F.R. § 989.1(b). Thus, the U.S. Air Force must comply with both U.S. Air Force and CEQ regulations when undertaking the procedures required by NEPASee id. 5 We reject for lack of merit Appellants' argument that, in light of the lack of involvement of many of these NATO allies in the current military presence in Iraq, the U.S. Air Force's stated purpose of maintaining military cooperation with NATO allies is "flawed." Appellants' Reply Br. at 4-5 6 This German Air Force F-4 training unit was relocated at Holloman in 1992, due to the closure of George Air Force Base, its previous siteSee Appellants' App. at 331; Appellees' Supp.App. at 43. An EIS was completed to assess the environmental impact of this relocation. Appellants' App. at 331. 7 We note that the district court failed to refer to 40 C.F.R. § 1502.22 when analyzing this issue. Rather, it relied on our prior decision inEnvironmental Defense Fund, Inc. v. Andrus, 619 F.2d 1368, 1375 (10th Cir.1980), for the proposition that an agency need not discuss environmental effects in detail unless the effects can be "readily ascertained." The court also quoted the Fifth Circuit's statement in Sierra Club v. Sigler, 695 F.2d 957, 973 (5th Cir.1983), that an EIS need do no more than disclose the presence of uncertainty as to environmental consequences in order to comply with NEPA. However, both Sierra Club, id., and our own cases subsequent to Environmental Defense Fund, see Colo. Envt'l Coalition, 185 F.3d at 1172; Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1523 (10th Cir.1992), make clear that 40 C.F.R. § 1502.22 properly governs this analysis. See also Robertson, 490 U.S. at 354, 109 S.Ct. 1835.

586 F.3d 358 (2009) Seth A. BECKER, Plaintiff-Appellant, v. TIDEWATER, INC.; Twenty Grand Offshore, Inc.; Tidewater Marine LLC; Pental Insurance Company Ltd.; Certain Underwriters At Lloyds Insurance Co., Defendants-Appellees, v. Baker Hughes, Inc.; Baker Oil Tools, Inc., a division of Baker Hughes Oilfield Operations, Inc., Defendants-Appellants. No. 08-30183. United States Court of Appeals, Fifth Circuit. October 26, 2009. *363 Cliffe E. Laborde, III (argued), James D'Arensbourg Hollier, Laborde & Neuner, Lafayette, LA, for Defendants-Appellees. Edwin G. Preis, Jr., Jennifer Elmer Michel (argued), Preis & Roy, Lafayette, LA, for Defendants-Appellants. James Parkerson Roy, Jamie D. Parker, Domengeaux, Wright, Roy & Edwards, Lafayette, LA, for Becker. Before JONES, Chief Judge, and WIENER, and BENAVIDES, Circuit Judges. BENAVIDES, Circuit Judge: The panel opinion issued August 28, 2009, is withdrawn and the following opinion is substituted in its place. This is an appeal from a trial stemming from injuries sustained by Plaintiff-Appellant Seth Becker ("Seth") while he was aboard an oil rig in the Gulf of Mexico. After a bench trial, the district court held Defendant-Appellant Baker[1] 55% liable for Seth's injuries and Defendant-Appellee Tidewater[2] 45% liable for Seth's injuries. The court also held that Baker was obligated to fully indemnify Tidewater for any liability for its negligence resulting in an injury to Seth. Baker appeals the district court's denials of summary judgment as well as the court's final judgment on issues of apportionment of fault and indemnity. Seth also appeals the district court's apportionment of fault and its findings concerning gross negligence. Based on the following analysis, we affirm in part and reverse in part the judgment of the district court and remand for proceedings consistent with this opinion. I. A. Seth was injured while working as a summer intern for Baker as part of the crew of the M/V REPUBLIC TIDE (the "REPUBLIC TIDE"), a boat outfitted for well-stimulation services, in June 1999. Baker was using the REPUBLIC TIDE pursuant to a time-charter contract with the boat's owner, Tidewater. The injury occurred while the REPUBLIC TIDE's crew was performing well-stimulation services on the R&B FALCON/CLIFFS RIG 153 (the "rig"), an oil rig owned by Cliffs Drilling and operated by R&B Falcon (collectively, "Falcon") in the Gulf of Mexico. The job required the REPUBLIC TIDE'S crew to unspool a coiled steel hose from the boat's stern, extend it to the rig, and attach it to the rig's wellhead. While the steel hose was extended, the REPUBLIC TIDE's movements caused the hose to whip across the rig's deck. To help keep the hose in place, Baker's employees ran it through a Baker-designed, Baker-constructed apparatus called the "blue shoe." The REPUBLIC *364 TIDE's captains, Captain Givens and Captain Lachney, employees of Tidewater, also sought to keep the hose in place by minimizing the REPUBLIC TIDE's movements relative to the rig. Crew members tied off the boat's stern to the rig with two lines (one starboard and one port), and the captains used the boat's bow thruster to maintain position against the Gulf of Mexico's current. The crew kept the REPUBLIC TIDE's anchor raised because the anchor windlass had a hydraulic oil leak which was discovered by Tidewater when it pulled up to the rig on the day of the incident. While Seth was aboard the rig, the REPUBLIC TIDE'S bow thruster failed. This failure created an emergency because, without the thruster, the REPUBLIC TIDE could not maintain its bow's position against the current. The REPUBLIC TIDE's captain on duty, Captain Lachney, contacted the rig and reported that the thruster had failed. Moments later, the current caused the port-stern mooring line to break. The REPUBLIC TIDE, still connected by the starboard-stern mooring line and the (slack) steel hose, and still being pushed starboard, would collide with the oil rig without intervention. Captain Lachney instructed Baker crew members aboard the boat to disconnect the steel hose from the reel assembly that attached the hose to the boat. The reel assembly contained a quick-release mechanism. The reel malfunctioned due to modifications made to the system and began to lock up. The quick disconnect button did not release the hose and the employees were unable to move the reel manually. Consequently, the crew was unable to disconnect the hose. Captain Lachney again contacted the rig. He reported that the hose would need to be disconnected from the rig's wellhead, and Baker's supervisor aboard the rig received this message. The supervisor ordered three Baker employees, including Seth, to the rig's deck to disconnect the hose. Meanwhile, the Gulf's current continued to push the REPUBLIC TIDE toward the rig. Captain Lachney, fearing impact with the rig, decided to break the starboard-stern mooring line. He did not, however, contact the rig before taking this action; Baker's crew members on the rig's deck were unaware that the steel hose was about to be pulled taut. Captain Lachney powered the boat's engines and pulled away from the rig. Seth was standing in the bend of the steel hose when the REPUBLIC TIDE's movement snapped the hose taut, pinning Seth. The hose cut through Seth's legs, amputating one leg and nearly amputating the other. He lost between eight and nine pints of blood before being evacuated. Doctors later had to amputate the second leg below the knee. Seth, twenty-two years old at the time of the accident, now suffers from severe health problems which will require ongoing treatment, counseling, and medication for the remainder of his life. B. Seth sued Baker, Tidewater, and Falcon under the Jones Act, the Longshore and Harbor Workers Compensation Act ("LHWCA"), and general maritime law. A jury trial was held in July 2001, concluding in a verdict finding Seth to be a Jones Act seaman and awarding him damage. The jury apportioned fault among the defendants, assigning each a percentage. On appeal, this court reversed the jury's finding and held Seth to be a longshoreman, set aside liability and damage findings, and remanded the case to the district court for *365 further proceedings under the LHWCA. Becker v. Tidewater, Inc., 335 F.3d 376 (5th Cir.2003) ("Becker I"). On remand, the district court granted Seth leave to amend his complaint to request a bench trial for his remaining claims under Federal Rule of Civil Procedure 9(h). Baker filed an interlocutory appeal challenging the district court's decision to hold a bench trial rather than a jury trial, which was accepted by this court. On appeal, the district court's ruling was affirmed, and the case was remanded a second time for a bench trial. Becker v. Tidewater, Inc., 405 F.3d 257 (5th Cir.2005) ("Becker II"). A limited second trial was held by the district court as an admiralty action, without a jury, pursuant to Federal Rule of Civil Procedure 9(h). Before the trial on remand, Baker and Seth entered into a Mary Carter agreement.[3] Baker gave Seth $23.5 million dollars in exchange for an agreement to share any net recovery he may have against Tidewater on the basis of 75% to Baker and 25% to Seth. The district court denied all of Baker's motions for summary judgment that attempted to invalidate the reciprocal indemnity agreement. The court ultimately awarded Seth almost $37 million damages against Baker and Tidewater under the LHWCA. The court held that Baker, as time-charterer of the boat, was 55% liable for Seth's injuries and Tidewater, as owner of the boat, was 45% liable. Falcon was held free from fault and liability. The court held that under the reciprocal indemnity agreement in the contract between Baker and Tidewater, Baker was obligated to fully indemnify Tidewater for any liability for Seth's injuries. Baker and Seth timely appealed the judgment of the district court. II. "The standard of review for a bench trial is well established: findings of fact are reviewed for clear error and legal issues are reviewed de novo." In re Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir.2005); see also Otto Candies, L.L.C. v. Nippon Kaiji Kyokai Corp., 346 F.3d 530, 533 (5th Cir.2003). "A finding is clearly erroneous if it is without substantial evidence to support it, the court misinterpreted the effect of the evidence, or this court is convinced that the findings are against the preponderance of credible testimony." Bd. of Trs. New Orleans Employers Int'l Longshoremen's Ass'n v. Gabriel, Roeder, Smith & Co., 529 F.3d 506, 509 (5th Cir. 2008); Otto, 346 F.3d at 533 ("Under a clear error standard, this court will reverse only if, on the entire evidence, we are left with the definite and firm conviction that a mistake has been made." (citations omitted)). This court reviews the district court's denial of summary judgment de novo. Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 540 (5th Cir.2002).[4] *366 III. The time-charter maritime contract entered into by Tidewater and Baker contained reciprocal indemnity provisions, with Tidewater being responsible for injuries to Tidewater employees, and Baker being responsible for injuries to Baker employees. On appeal, Baker presents a number of arguments asserting that the district court erred in holding that Baker was obligated to indemnify Tidewater fully for any liability for Seth's injuries under this agreement. Based on the following analyses, we hold that the district court did not err in holding that the reciprocal indemnity agreement between Baker and Tidewater obligates Baker to indemnify Tidewater fully for Seth's injuries. A. First, Baker appeals the district court's ruling that the reciprocal indemnity agreement entered into by Baker and Tidewater was valid under § 905 of the LHWCA. 33 U.S.C. § 905(b). Section 905(b) of the LHWCA provides that agreements for an employer to indemnify a vessel from injuries to a longshoreman are void. Id. However, reciprocal-indemnity agreements between employer and vessel are not void when a longshoreman is entitled to LHWCA relief by virtue of the Outer Continental Shelf Lands Act ("OCSLA"). 43 U.S.C. § 1333(b); 33 U.S.C. § 905(c). The question is whether Seth, who was a longshoreman at the time of the incident,[5] is covered by § 1333(b) of OCSLA. Baker argues that Seth is not covered because he does not satisfy the "situs" test and is thus not covered under § 1333(b). We find this argument unavailing. "Section 1333(b) of OCSLA extends the LHWCA's benefits to employees disabled or killed `as the result of operations conducted on the outer Continental Shelf for the purposes of exploring for ... [or] developing... the natural resources ... of the subsoil and seabed of the outer Continental Shelf.'" Mills v. Director, 877 F.2d 356, 357-58 (5th Cir.1989) (en banc) (quoting 43 U.S.C. § 1333(b)). Under this subsection, with two exceptions, all employees suffering injury or death on the outer continental shelf are covered by the LHWCA if they are engaged in exploring for or developing natural resources. The only exceptions, not applicable here, are for masters or members of a crew of a vessel or employees of the United States. 43 U.S.C. § 1333(b)(1). The only status requirement is that the worker be engaged in exploration or production of minerals, and the only situs requirement is that the worker be injured on the outer continental shelf. See Mills, 877 F.2d at 362. Because Seth was engaged in mineral exploration, was a non-seaman, and was injured on the outer continental shelf while employed by an employer engaged in mineral production, he is covered under the *367 LHWCA.[6] B. Baker and Seth also contend that the indemnity provision is invalid because they allege that Tidewater committed gross negligence. It is undisputed that Baker escapes indemnity if Tidewater's actions leading to Seth's injuries were grossly negligent. See Houston Exploration Co. v. Halliburton Energy Servs., Inc., 269 F.3d 528, 531 (5th Cir.2001) (noting that a waiver of liability for gross negligence is void). The district court found that Tidewater's actions were negligent but not grossly negligent. "A finding that a party is negligent or grossly negligent is a finding of fact and must stand unless clearly erroneous. A finding of fact is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. (footnote omitted). This court has defined gross negligence as "willful, wanton and reckless conduct that falls between intent to do wrong and ordinary negligence." Id. (interpreting Louisiana law). "Mere inadvertence or honest mistake does not amount to gross negligence." Id.; see also Todd Shipyards Corp. v. Turbine Serv., Inc. 674 F.2d 401, 411 (5th Cir.1982) ("Gross negligence, which will invalidate an exemption from liability has been defined as harm willfully inflicted or caused by gross or wanton negligence." (citation omitted)). Baker and Seth argue that Tidewater's actions, considered as a whole, were grossly negligent. The district court found that Tidewater's "most egregious" conduct was moving the REPUBLIC TIDE without warning. Baker and Seth characterize this failure to warn as gross negligence because Tidewater's captain requested crew aboard the rig to disconnect the steel hose and knew that moving the REPUBLIC TIDE would cause the hose to move across the rig's deck. Based on the record, the failure to warn was mere inadvertence and not gross negligence. The situation was an emergency, and the captain needed to act quickly. He moved the REPUBLIC TIDE, but only to avoid a collision with the rig. The captain's actions thus reflect a concern for safety, rather than a reckless disregard for safety. Baker and Seth also contend that Tidewater was grossly negligent in failing to warn the rig's crew that the REPUBLIC TIDE would be unanchored, but the record reflects that Baker employees were aware the anchor was raised and, in any event, proceeding with such a job while unanchored was not unusual. Baker and Seth contend that Tidewater knew the bow thruster was faulty when Tidewater decided to rely on it instead of the REPUBLIC TIDE's anchor, but: (1) three Tidewater employees and three Baker employees testified that the REPUBLIC TIDE experienced no bow-thruster problems prior to the accident; (2) one individual testified that a Tidewater employee communicated with the rig about a bow-thruster problem but reported that the problem had been resolved; and (3) the testimony is unclear as to whether the problem mentioned was recent or occurred *368 before the bow thruster had been replaced six months earlier. The district court did not commit clear error in finding that Tidewater was not grossly negligent; there is substantial evidence to support the holding that Tidewater was merely negligent, and not grossly negligent, under the circumstances presented.[7] C. Baker contends that because Tidewater breached the time-charter contract, the indemnity provision contained therein was rendered void.[8] Baker cites Marquette Transportation Co. v. Louisiana Machinery Co., 367 F.3d 398 (5th Cir.2004), for the proposition that a breach of a contract containing an indemnity agreement serves to invalidate the indemnity agreement. However the court in Marquette, after finding that the indemnity agreement at issue was enforceable, states only that if the party "had been found to be in breach of those warranties, perhaps our application of the indemnity clause would be different." 367 F.3d. at 408. Marquette does not hold that breach of a contract necessitates invalidation of an indemnity agreement included therein. Even if the indemnity agreement could be invalidated by Tidewater's breach of the time-charter contract, the district court did not err in holding that Tidewater did not breach the contract. The time-charter contract required Tidewater to deliver to Baker a boat that was: properly equipped and in every respect seaworthy and in good running order and in every way fit and ready for [Baker's] use and for the employment intended, so far as the exercise of due diligence can make her; and [Tidewater] undertakes to so maintain the vessel during the period of service under this Charter. Baker contends that Tidewater breached this provision by delivering the REPUBLIC TIDE in an unseaworthy condition. Whether Tidewater exercised due diligence in delivering and maintaining the REPUBLIC TIDE in seaworthy condition is a question of fact reviewed for clear error. Stevens v. East-West Towing Co., 649 F.2d 1104, 1106 (5th Cir. Unit A July 1981). Baker contends that the vessel was unseaworthy because the bow thruster and anchor windlass were faulty. The district court found that Tidewater exercised due diligence to deliver and to maintain the REPUBLIC TIDE in seaworthy condition. There was conflicting testimony concerning whether Tidewater knew of any bow-thruster problem, and several Tidewater *369 employees testified that the REPUBLIC TIDE had never experienced any previous issues with the bow-thruster. Although Tidewater did not have evidence of September or March inspections of its anchor mechanism as its procedures required, they had inspected the anchor in May before the June 1999 incident according to testimony of Tidewater's engineer. The record contains substantial evidence that Tidewater did not know the bow thruster or anchor were faulty, and therefore, even if Tidewater's breach could invalidate the indemnity agreement, the district court did not clearly err in holding that Tidewater did not commit a breach of contract. D. Baker also argues that even if the indemnity provision is upheld, it only obligates Baker to indemnify Tidewater for "general damages." The interpretation of a contractual indemnity provision is a question of law, reviewed de novo. Weathersby v. Conoco Oil Co., 752 F.2d 953, 956 (5th Cir.1984) (per curiam). "A maritime contract containing an indemnity agreement, whether governed by federal maritime or Louisiana law, should be read as a whole and its words given their plain meaning unless the provision is ambiguous." Id. at 955 (citing Lirette v. Popich Bros. Water Transp., Inc., 699 F.2d 725, 728 (5th Cir.1983)). Article XIV of the time-charter contract contains three paragraphs. In the first paragraph, Tidewater agrees to defend and indemnify Baker "from and against all claims, suits, losses, liabilities, expenses, demands, costs (including reasonable attorneys' fees) and/or damages as a result of ... injury, illness, or death" of Tidewater's employees. In the second paragraph, Baker reciprocates the promise contained in the first paragraph. The relevant portion of the third paragraph reads: Notwithstanding anything to the contrary contained herein, it is expressly agreed by and between the parties hereto that, regardless of the negligence on the part of any party hereto or the unseaworthiness of any vessel, neither such party shall be liable to the other for any punitive, indirect, incidental, special or consequential damages of any kind or nature (including, but not limited to, loss of profits, loss of use, loss of hire, and loss of production); and each party hereby agrees to waive its rights of recourse in this regard against the other party. Baker argues that this paragraph of the time-charter contract restricts the preceding indemnity provision to general damages only, which they contend encompasses only physical pain/suffering and mental anguish/suffering damages and excludes damages which Baker characterizes as "special damages" — past and future medical expenses, past lost wages, and impairment of earning capacity. There is nothing in the third paragraph to suggest that it is a restriction on the indemnity provisions in the preceding paragraphs. It references only liability between the parties to the agreement (Tidewater and Baker), and does not reference indemnity or liability to third parties or employees. The types of damages referenced in this paragraph are those traditionally associated with contractual claims, and not the personal injury claims which are the subject of the indemnification provision. See Nat'l Hispanic Circus, Inc. v. Rex Trucking, Inc., 414 F.3d 546, 549 (5th Cir.2005) ("Special damages are those that result from a party's breach of contract but are not reasonably foreseeable"); Tex. A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 404 (5th Cir.2003) ("[C]onsequential, or `special,' damages ... are those unusual or indirect costs that, *370 although caused by the defendant's conduct in a literal sense, are beyond what one would reasonably expect to be the ordinary consequences of a breach."). The illustrative parenthetical following the description of excepted damages — "(including, but not limited to, loss of profits, loss of use, loss of hire, and loss of production)" — also supports this interpretation. Baker's proffered interpretation of the term "special damages" does not fall within the plain meaning of the term, especially when read in context with the rest of the paragraph at issue. Therefore, the district court did not err inn holding that the third paragraph of Article XIV of the time-charter contract does not restrict the scope of the indemnity provision. E. Baker contends that Tidewater must exhaust its liability insurance policies before turning to Baker for indemnity. The district court held that because Baker was only an "additional assured" under the policies for risks assumed by Tidewater, there was no coverage for Seth's injuries because those risks were assumed by Baker pursuant to the indemnity agreement. Under Article XI of the time-charter contract, Tidewater must procure and maintain a $2,000,000 Protection and Indemnity ("P&I") insurance policy covering Tidewater's liabilities, "including Collision/Towers/Liability and crew coverage, but excluding Cargo Liability coverage and coverage for those risks, if any, assumed or insured by CHARTERER [Baker] in this Charter." Article XI further specifies that the policy "shall include CHARTERER, in its capacity as time-charterer of the vessel, as an additional assured, but only with respect to the risks assumed by OWNER [Tidewater] in this Charter." Tidewater procured and maintained a $5,000,000 primary marine-liability policy. Under this policy, "the unqualified word `Assured' includes ... any person, organization, trustee or estate to whom or to which the `Named Assured' [Tidewater] is obligated by virtue of a contract or agreement to include or name as an assured, co-assured or additional assured." Tidewater also procured and maintained an excess marine-liability policy designating Tidewater as a named assured but not designating Baker as an additional assured. Baker cites a series of Fifth Circuit cases that have held that, in certain circumstances, when a contract contains a reciprocal-indemnity clause and requires the indemnitee to maintain an insurance policy designating the indemnitor as an "additional assured," the indemnitee must exhaust the insurance coverage before receiving indemnity. See, e.g., Tullier v. Halliburton Geophysical Servs., Inc. 81 F.3d 552 (5th Cir.1996); Klepac v. Champlin Petroleum Co., 842 F.2d 746 (5th Cir. 1988); Ogea v. Loffland Bros. Co., 622 F.2d 186 (5th Cir.1980). The primary question posed here is whether Baker is an "additional assured" under Tidewater's insurance policy for Seth's claims. In order to determine if Baker is an "additional assured," we must read the insurance and indemnity provisions of the time-charter contract in conjunction in order to properly interpret the meaning of the contract. See Ogea, 622 F.2d at 190. Baker contends that it is an "additional assured" because Tidewater must procure and maintain insurance designating Baker as an "additional assured." Tidewater argues that, under Article XI's plain language, Tidewater's duty is more limited: it must procure and maintain insurance designating Baker as an "additional assured, but only with respect to the risks assumed by OWNER [Tidewater] in this Charter." Tidewater thus argues that because Baker — not Tidewater — assumed the risk of *371 injury to Baker employees, the contract does not require Baker to be designated as an "additional assured" for coverage over Seth's injuries. Tidewater also argues that the language in its insurance policies demonstrates that Baker is not covered for Seth's claim because the policy specifically limits Baker's "additional assured" coverage to risks assumed by Tidewater under the time-charter. Baker contends that this issue is addressed in Klepac, which held that an indemnitor's obligation does not begin to run until the indemnitee's insurance policy, naming the indemnitor as the additional assured, is exhausted. Klepac, 842 F.2d at 747-48. However, the contract in Klepac did not limit additional assured coverage to only risks assumed by the indemnitee, as the time-charter does here. Id. The Klepac contract stated that the insurance coverage "shall include" coverage for which the insured indemnitee was reciprocally obligated to indemnify the indemnitor. The court extended the obligation to cover damages for which the indemnitor was obligated to cover the insured indemnitee. Id. at 748. Here, however, the time-charter contract specifically excludes from coverage risks assumed by Baker. Thus, Klepac does not present the exact situation at issue here. Although there is no case which presents a contract with the precise limiting language at issue here, Article XI of the time-charter contract expressly limits Tidewater's obligation to designate Baker as an "additional assured" to "the risks assumed by OWNER [Tidewater] in this Charter." Tidewater's insurance policy, in turn, limits Baker's status as an "additional assured" to when Tidewater "is obligated by virtue of a contract or agreement" to designate Baker as an "additional assured." Furthermore, the time-charter specifically excludes risks assumed by Baker from Tidewater's insurance coverage. Here, the injury was to Seth, a Baker employee. Under the parties' reciprocal-indemnity agreement, Baker, not Tidewater, assumed the risk of injury to Baker employees. Because Tidewater did not assume the risk of injury to Seth, Baker is not an "additional assured" to Tidewater's insurance for Seth's injuries. Thus, the district court did not err in holding that the insurance policies need not be exhausted before Baker's indemnification obligation began. Baker also argues that Tidewater's insurers, under the policies discussed in the foregoing analysis, were obligated to defend Baker against the claims made by Seth against Baker.[9] In determining whether an insurer had a duty to defend, we look to the face of the pleadings. Snug Harbor, Ltd. v. Zurich Ins., 968 F.2d 538, 545-46 (5th Cir.1992). "The insurer is under a legal duty to defend if, and only if, the petition alleges facts construing a cause of action within the coverage of the policy." Id. (citation omitted). An insurer's duty to defend is greater than its duty to provide coverage. Landry v. Oceanic Contractors, Inc., 731 F.2d 299, 305 n. 2 (5th Cir.1984). *372 Because the pleadings stated only a claim by one of Baker's employees, a risk expressly assumed by Baker in the time-charter contract, there was no cause of action plausibly within the coverage of the policy. Because Baker could be entitled to a defense under the policy only for covered risks assumed by Tidewater (i.e., suits brought by Tidewater employees against Baker), Tidewater's insurer was not obligated to defend Baker in this suit. IV. A. Appellants also present arguments concerning the liability attributed to Baker and Tidewater, respectively. Seth argues that Tidewater's conduct in breaking the REPUBLIC TIDE's starboardstern mooring line without warning was a superseding cause of Seth's injuries, and thus Tidewater should be entirely liable. "The issues of proximate causation and superseding cause involve application of law to fact, which is left to the factfinder, subject to limited review." Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 840-41, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996). The district court concluded that Tidewater's conduct was part of a series of actions that caused Seth's injuries and held that "no one party was solely responsible for the dangerous conditions that resulted in the grave harm that befell Seth Becker." In order to determine what constitutes a superseding cause, this court has stated that: The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act, or (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent. Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 652 (5th Cir.1992) (quoting Nunley v. M/V DAUNTLESS COLOCOTRONIS, 727 F.2d 455, 464-65 (5th Cir.1984) (en banc) (citing Restatement (Second) of Torts § 447)). The district court found that Tidewater's captain snapped the starboardstern mooring line to prevent impact with the rig. The captain's failure to warn anyone aboard the rig that he was about to do this was negligent. However, the captain's actions are excused from being a superceding cause of Seth's injury. The captain's actions were not highly extraordinary considering the whole of the circumstances. Because of the defective Coflex hose and blue shoe system, the captain could not disconnect the hose from the rig and was thus forced to snap the line to prevent impact with the rig. The captain's actions were not "so extraordinary that a reasonably prudent person could not have foreseen [their] occurrence." Tidewater Marine, Inc. v. Sanco Int'l., Inc., 113 F.Supp.2d 987, 999 (E.D.La.2000). The district court did not clearly err in determining that Tidewater was not the superseding cause of the incident. B. Baker and Seth also argue that the district court erred in determining that *373 most of Baker's negligent acts were committed while Baker was acting within its role as time-charterer of the boat, and not as Seth's employer. The court's determination that Baker's acts fell within its duty as time-charterer is reviewed de novo.[10]Cf. Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir.2000) (holding that whether a legal duty is owed is a question of law). Section 905(a) of the LHWCA precludes an employee from suing his employer in tort. 33 U.S.C. § 905(a). Consequently, Baker cannot be held liable to Seth in its capacity as his employer. It can, however, be held liable under section 905(b) if at fault in its capacity as the time-charterer of the REPUBLIC TIDE. Kerr-McGee Corp. v. Ma-Ju Marine Servs., Inc., 830 F.2d 1332, 1339 (5th Cir. 1987). Section 905(b) of the LHWCA provides the exclusive remedy for a longshoreman against a vessel. The Kerr-McGee court stated that a time-charterer can be liable under section 905(b) if the harm caused is "within the charterer's traditional sphere of control and responsibility or has been transferred thereto by the clear language of the charter agreement." 830 F.2d. at 1343. A defendant time-charterer who is also the plaintiff's employer owes the plaintiff duties both as an employer and as a time-charterer. Moore v. Phillips Petroleum Co., 912 F.2d 789, 791 (5th Cir.1990). The two duties are separately owed and do not affect each other. Id. Under the traditional role of time-charterer, the time-charterer is expressly responsible for directing the commercial activity of the vessel, determining the ship's routes, destinations, timing of the mission, and the designation of cargo. Kerr-McGee, 830 F.2d at 1339. The vessel owner, on the other hand, remains responsible for the seaworthiness of the vessel, dangerous conditions on board, navigational errors by the pilot and negligence by the crew, and a reasonably safe means of access for those boarding or leaving the vessel. Moore, 912 F.2d at 792. Here, as noted by the district court, the time-charter contract shifted additional responsibilities to Baker as time-charterer: In this case, the Charter Agreement also shifted other responsibilities to Baker. ... Baker was responsible for and retained control over the equipment it installed on the vessel. The equipment was installed to assist Baker's performance of specialized services on oil and gas wells. As such, the Coflex hose, Coflex hose reel assembly, blue shoe and pumping operations associated with this equipment were within Baker's exclusive control under the Charter. Becker v. Tidewater, Inc., No. 99-1198, 2007 WL 3231655, *7 (W.D.La. Nov. 14, 2007). The district court identified several causes of Seth's harm. It labeled the following causes as being within Baker's role as time-charterer: (1) proceeding with gravel-packing operations while unanchored; (2) failing to notify Falcon, the owner and operator of the oil rig, that the REPUBLIC TIDE was unanchored; (3) negligently modifying the Coflex hose system; (4) failing to test, clean, or properly maintain the Coflex hose system; (5) failing to properly train Baker employees how to operate the Coflex hose system; (6) *374 failing to warn Seth of the gravity of the unfolding situation on the oil rig and the dangers of the Coflex hose and blue shoe system; (7) negligently designing the blue shoe; and (8) failing to test the blue shoe. The district court erred in determining that some of the Baker's acts were committed in its role as time-charterer rather than employer. Proceeding with gravel-packing operations while unanchored was correctly characterized as time-charterer negligence. See Kerr-McGee, 830 F.2d at 1341 ("The time-charterer directs where and when the vessel will travel, so if it forces it out in hurricane weather or similarly treacherous conditions, it may be liable under section 5(b)."). Directing the REPUBLIC TIDE to remain in position, while unanchored, for the duration of the gravel-packing job and failing to notify Falcon that the REPUBLIC TIDE was unanchored are also part of the time-charterer's traditional responsibilities, namely "directing the commercial activities of the vessel." Negligently modifying the Coflex hose system; failing to test, clean, or properly maintain the Coflex hose system; negligently designing the blue shoe; and failing to test the blue shoe were all time-charterer negligence under the time-charter contract. The court in Kerr-McGee specified that a time-charterer is also liable when a responsibility "has been transferred [to the time-charterer] by the clear language of the charter agreement" 830 F.2d at 1343. Here, Article VIII of the time-charter contract specified that Baker could install equipment on the REPUBLIC TIDE and that "[a]ll equipment installed by [Baker] shall remain its property ...." Baker thus retained legal control and responsibility and, as the district court found, actual control of its equipment aboard the REPUBLIC TIDE. These were time-charterer responsibilities allocated to Baker specifically by the time-charter contract. Baker's negligence causing the equipment's failure was time-charterer negligence. However, failing to properly train Baker employees how to operate the Coflex hose system and failing to warn Seth of the dangers of the Coflex hose and blue shoe system should not have been characterized by the district court as time-charterer negligence. See Kerr-McGee, 830 F.2d at 1342 (holding that providing a safe place to work is a duty imposed on a defendant in its capacity as employer and not time-charterer). Nothing in the case law defining a time-charterer's traditional responsibilities or in the time-charter contract leads to the conclusion that training and warning its employees is encompassed by Baker's role as time-charterer. These actions were taken by Baker in its role as employer. Because the district court should not have held that Baker's failure to train its employees and its failure to warn Seth of the gravity of the situation were time-charterer negligence, it should not have considered these actions when apportioning LHWCA liability between Baker and Tidewater. We remand this matter to the district court for the purpose of re-evaluating the apportionment of fault while considering only those acts of negligence that Baker committed as time-charterer in accordance with this opinion.[11] *375 V. Finally, Baker appeals the district court's holding that the indemnity provision permits Tidewater to recover the attorneys' fees that it incurred in establishing its right to indemnity. This is a question of contractual interpretation, reviewed de novo. Dow Chem. Co. v. M/V ROBERTA TABOR, 815 F.2d 1037, 1042 (5th Cir.1987). Although a general indemnity provision typically includes recovery of attorneys' fees incurred in defending against a claim covered by the indemnity provision, "the indemnitee enjoys no right to recover its legal fees incurred in establishing its right to indemnification." Id. at 1046 (citing Weathersby, 752 F.2d at 959). Although there is some authority for the proposition that attorneys' fees incurred in enforcing a contractual right of indemnity may be recoverable if the indemnity provision specifically anticipates their recoverability, the agreement here does not specifically anticipate that attorneys' fees incurred in enforcing the indemnity provision will be recoverable. See Royal Exch. Assurance Co. v. M/V GULF FLEET NO. 54, No. 86-1367, 1991 WL 99406, at *2 (E.D.La. May 31, 1991) (unreported) (holding that indemnity provision which provided for reimbursement "for any and all necessary expenses, attorney's fees, and costs incurred in the non-judicial or judicial enforcement of any part of the indemnity agreements" specifically allowed for recovery of fees incurred in enforcing indemnity provision). Here the agreement only provides that "[Baker] shall protect, defend, indemnify and hold harmless [Tidewater] from and against all claims, suits, losses, liabilities, expenses, demands, costs (including reasonable attorney's fees) and/or damages as a result of such illness, injury or death." This provision is a general indemnity clause, and does not specifically provide for recovery of attorneys' fees in enforcing the indemnity provision. Thus, the prohibition barring the recovery of legal fees incurred in establishing a right to indemnification applies to the instant contract. Dow Chem., 815 F.2d at 1046. The district court erred in holding that the indemnity agreement permits Tidewater to recover the attorneys' fees that it incurred in establishing its right to indemnity. This matter is remanded for the purpose of calculating and awarding Tidewater only the attorneys' fees that Tidewater incurred in defending against Seth's tort action. VI. For the foregoing reasons, the judgment of the district court is AFFIRMED in part and REVERSED in part, and REMANDED for the limited purposes of (1) calculating, and awarding Tidewater, the attorneys' fees that Tidewater incurred in defending against Seth's tort action and excluding any fees incurred in enforcing its right to indemnity and (2) apportioning liability while considering only those acts of negligence that Baker committed as time-charterer and not those it committed as employer. NOTES [1] "Baker" refers collectively to Baker Hughes, Inc. and Baker Oil Tools, Inc., a division of Baker Hughes Oilfield Operations, Inc. [2] "Tidewater" refers collectively to Tidewater Inc., Tidewater Marine, LLC, Twenty Grand Offshore, Inc., Pental Insurance Company, and Certain Underwriters at Lloyds, Subscribing Risk No. LEO 106200. [3] A Mary Carter agreement is a contract "between the plaintiff and one of several defendants whereby the contracting defendant will settle with the plaintiff before trial, but must remain in the suit, and will be reimbursed to some specific degree from the plaintiff's recovery from the other defendants." McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 309 n. 49 (5th Cir.1993). [4] This court normally declines to review a "district court's denial of motions for summary judgment when the case comes to us on the movant's appeal following adverse judgment after full trial on the merits." Black v. J.I. Case Co., Inc., 22 F.3d 568, 572 (5th Cir.1994). Although the rule does not appear to have been explicitly stated in this circuit, other circuits have held that a denial of summary judgment is appealable after a trial on the merits when there was a ruling by the district court on an issue of law. See Banuelos v. Constr. Laborers' Trust Funds for S. Cal., 382 F.3d 897, 902 (9th Cir.2004). In addition, because Rule 50 motions are not required to be made following a bench trial, it is appropriate to review the court's denial of summary judgment in this context. See Colonial Penn Ins. v. Mkt. Planners Ins. Agency Inc., 157 F.3d 1032, 1037 n. 3 (5th Cir.1998) ("In a jury trial, of course, a party must make (and renew at the trial's conclusion) a Rule 50(a) motion for judgment as a matter of law in order to preserve sufficiency of the evidence for appellate review. But nothing indicates that a similar rule applies to an appeal of the sufficiency of evidence to support findings or sufficiency of findings to support a judgment following a bench trial." (citations omitted)). Because Baker appeals the district court's legal conclusions in denying summary judgment, and the case was a bench trial, review of the denials of summary judgment is appropriate. [5] Becker I, 335 F.3d at 393. [6] Although we are persuaded that the above analysis is the correct approach in determining whether a worker injured on the outer continental shelf is covered by the LHWCA, we recognize that some of our cases have suggested that more is required to satisfy the situs requirement. See, e.g., Demette v. Falcon Drilling Co., 280 F.3d 492, 498-500 (5th Cir.2002). Even if we follow this approach, since Seth was injured on a jack-up oil rig on the OCS, he satisfies the Demette situs test. [7] Baker also challenges the district court's refusal to allow Baker certain additional discovery to bolster its claim of gross negligence on remand from Becker I. We review a trial court's evidentiary ruling for an abuse of discretion. Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 265 (5th Cir.2007). "If we find that an abuse of discretion has occurred, we then apply the harmless error doctrine. Thus, the evidentiary ruling will be affirmed unless the district court abused its discretion and a substantial right of the complaining party was affected." Id. The district court's discovery ruling distinguished between witnesses whom Baker could have deposed before the original trial and witnesses whom it could not have — the ruling permitted Baker to depose the latter. It also permitted Baker to supplement the deposition of a witness it already had deposed. Allowing this discovery, while forbidding Baker to retain experts or to depose witnesses whom it could have deposed before the original trial but apparently chose not to, was not an abuse of discretion. [8] Tidewater contends that Baker has waived this argument, among others, because it was outside the mandate issued by this court in Becker I. See Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir.2007). We need not address this issue because all of the arguments that Tidewater contends are barred by the mandate rule are rejected on the merits in the instant opinion. [9] It appears that the district court never ruled explicitly on the issue of whether Tidewater's insurers were obligated to defend Baker in Seth's suit. However, this court has held that "[i]f a trial judge fails to make a specific finding on a particular fact, the reviewing court may assume that the court impliedly made a finding consistent with its general holding so long as the implied finding is supported by the evidence." Century Marine Inc. v. United States, 153 F.3d 225, 231 (5th Cir. 1998). The record supports the district court's rejection of the notion that Tidewater's insurers were obligated to defend Baker because it did not qualify as an additional assured under the policy. [10] Although apportionment of fault is traditionally a fact question, Flowers Transp., Inc. v. M/V Peanut Hollinger, 664 F.2d 112, 113 (5th Cir.1981), the district court's characterization of Baker's actions as those of time-charterer versus employer is a question of law because it concerns the duties owed as time-charterer under existing precedent and the language of the contract. [11] We acknowledge that, as a practical matter, the fault allocation between Baker and Tidewater does not affect Baker's ultimate liability, because Baker must indemnify Tidewater for all of Seth's damages under the reciprocal indemnity agreement. However, because the plaintiff is a party to this appeal, correct apportionment may be necessary in order to determine Seth's rights against each defendant, without regard to the contractual indemnity agreement between them. See Jamison v. Ellwood Consol. Water Co., 420 F.2d 787, 789 (3d Cir.1970) ("[A] valid indemnity provision in no way affects the victim's right of recovery. Rather, it merely determines who among the parties to the contract shall bear the ultimate cost of the victim's claim."). Although Seth's actual recovery from the parties may be affected by the Mary Carter agreement he entered into with Baker, we have not been presented with any arguments from the parties concerning the effect of the agreement on apportionment and we do not address the issue herein.

350 Ill. App. 400 (1953) 113 N.E.2d 208 Harold Brown and Frank Stevens, Trading as Brown Music Company; James Jansen, Trading as Jansen Music Company; James Anderson, Trading as Anderson Music Company; and Gilbert Crawford, Trading as Gil's Cone Shop, Plaintiffs-Appellees, v. City of Sullivan, Defendant-Appellant. Gen. No. 9,854. Illinois Appellate Court. Opinion filed June 1, 1953. Released for publication July 2, 1953. *401 FRANK L. WOLF, of Sullivan, for appellant. JOHN J. YELVINGTON, of Mattoon, for appellees. MR. JUSTICE CARROLL delivered the opinion of the court. This appeal is from an interlocutory order of the circuit court of Moultrie county overruling a motion to dissolve a temporary injunction issued without notice and without bond. On January 24, 1952, plaintiffs-appellees filed their complaint upon which the temporary injunction issued, alleging in substance that they were engaged as owners in operating certain mechanical entertainment devices such as juke boxes, pinball games, and shuffleboards *402 in the City of Sullivan; that defendant, a municipal corporation, on December 10, 1951, adopted a certain ordinance licensing such mechanical devices and providing certain penalties for the violation thereof; that said ordinance is null and void, fatally defective, impossible of enforcement, and imposes an undue, unjustified, and unlawful restraint upon the property of an individual; that said ordinance constitutes an unauthorized exercise of police power; that there is no provision therein for the use to be made of license fees collected thereunder, and is for the purpose of raising revenue only. That there is pending in a justice of the peace court a complaint against one of the plaintiffs for violation of said ordinance; that the defendant, through its officials, is threatening to institute many suits each day against each of the plaintiffs and others similarly situated; that the defendant, through its representatives, is molesting the machines owned and operated by plaintiffs by detaching them and putting them out of operation; and that the plaintiffs are without remedy, except in a court of equity because of the multiplicity of suits threatened. On February 14, 1952, defendant filed its motion to dissolve the injunction, which motion was heard and denied on April 1, 1952, and the case was set for trial on April 14, 1952. [1] The defendant urges reversal of the interlocutory order of the trial court on the ground that the temporary injunction should not have been issued without notice and without bond. It is the contention of the plaintiffs that objection to the issuance of an interlocutory injunction without notice is waived by the making of a motion to dissolve. Such a contention is without merit. Supreme Court Rule 31 [Ill. Rev. Stats. 1951, ch. 110, § 259.31; Jones Ill. Stats. Ann. 105.31] provides in part as follows: "Where an interlocutory order or decree is entered on an ex parte application, *403 the party proposing to take an appeal therefrom shall first present, on notice, a motion to vacate the order or decree to the trial court entering such order or decree. Appeal may be taken if the motion is denied, or if the court does not act thereon within seven days after its presentation." [2, 3] The statute provides that no court or judge shall grant an injunction without notice unless it appears from the complaint or affidavit accompanying the same that the rights of plaintiffs will be unduly prejudiced if the injunction is not issued without notice. Illinois Revised Statutes 1951, chapter 69, paragraph 3 [Jones Ill. Stats. Ann. 109.351]. The question therefore presented is whether plaintiffs by their complaint brought themselves within the exception of the statute. The general rule seems to be that when a complaint is presented to a court praying for relief which the court has jurisdiction to grant upon a final hearing, and such complaint recites facts which give prima facie a right to such relief, the court may grant a temporary injunction where the effect will be to maintain the status quo of the matters involved. Baird v. Community High School Dist. No. 168, 304 Ill. 526. We are therefore not concerned with the decision which might finally be reached upon a hearing upon the merits. In this case, the controlling factor is the sufficiency of the facts recited in the complaint. [4] An examination of the complaint in the instant case does not seem to indicate that the plaintiffs would have been unduly prejudiced or harmed by giving notice of their intention to apply for a temporary injunction. There are no statements of fact in the complaint which reasonably support the conclusion that failure to issue a temporary injunction would result in irreparable damage to the plaintiffs or that a multiplicity of suits would result therefrom. It is the general rule that an injunction should not be granted without *404 notice and bond unless it clearly appears from the complaint that the plaintiffs bring themselves within some established exception to the statute which expressly prohibits the issuing of such injunctions without notice to the defendant and without bond. Kessie v. Talcott, 305 Ill. App. 627; Skarpinski v. Veterans of Foreign Wars, 343 Ill. App. 271. [5] It is also a well known rule that courts of equity will not interfere by injunction to prevent the enforcement of an ordinance on the ground that it is invalid when the defendant has an adequate remedy at law. Poyer v. Village of Des Plaines, 123 Ill. 111. [6] After careful consideration of the complaint in this case, we have reached the conclusion that the interlocutory injunction should not have been issued without giving notice to the defendant. [7] Where it appears that a temporary injunction issued without notice in a case where a notice should have been given, it is the duty of this court, without reference to the merits of the cause, to reverse the order denying the motion to dissolve the injunction on that ground. Kessie v. Talcott, supra; Koelling v. Foster, 150 Ill. App. 130. The order overruling the defendant's motion to dissolve the preliminary injunction is reversed and the cause is remanded to the circuit court of Moultrie county with directions to sustain the defendant's motion and to dissolve the said injunction. Reversed and remanded with directions.

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT August 26, 2016 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 15-5073 (D.C. No. 4:14-CR-00096-CVE-1) GREGORY LYNN SHRADER, (N.D. Okla.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT * _________________________________ Before TYMKOVICH, Chief Judge, BACHARACH and MORITZ, Circuit Judges. _________________________________ Mr. Gregory Shrader and Mr. Brad Stewart were business partners whose relationship soured. When it did, the two men clashed and Mr. Stewart accused Mr. Shrader of stalking and harassment. While the two men wrangled, a package containing an improvised explosive device was mailed to an Arizona sheriff. Though the package showed a return address * Oral argument would not be helpful in this appeal. As a result, we are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). for Mr. Stewart, law enforcement suspected that the sender had been Mr. Shrader. He was ultimately prosecuted and convicted in Arizona federal court on charges growing out of the mailing of an explosive. During the investigation into these charges, authorities searched Mr. Shrader’s house in Oklahoma pursuant to a search warrant. In the attic space, covered by insulation, were three firearms and one round of ammunition wrapped in plastic. This discovery led to charges in Oklahoma federal court of possession of firearms and ammunition by a felon. See 18 U.S.C. § 922(g). Mr. Shrader’s counsel moved to suppress the evidence seized from the house during the execution of the warrant. The district court denied the motion and ultimately convicted Mr. Shrader. Mr. Shrader then sought leave to file a second suppression motion pro se, but the district court concluded that the motion had been improperly filed. In this pro se appeal, Mr. Shrader argues that (1) the district court should have granted his suppression motions, (2) the indictment should have been dismissed based on intrusion into the attorney-client relationship, (3) the prosecution should not have been allowed to pursue a theory of constructive possession, and (4) the district court violated the Speedy Trial Act. We reject these arguments and affirm. 2 I. The district court properly denied Mr. Shrader’s suppression motions. Mr. Shrader argues that the district court should have granted his suppression motions because (1) the affidavit supporting the search warrant application had misled the magistrate judge, (2) an insufficient nexus existed between the house, the letters, and the explosive device, and (3) the warrant did not specify firearms as items to be seized. 1 A. Standard of Review In reviewing the denial of Mr. Shrader’s motion to suppress, “we accept the factual findings unless they are clearly erroneous . . . and review questions of law de novo.” United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir. 2005). 2 B. The affiant did not mislead the magistrate judge. Mr. Shrader argues that the district court should have granted the first motion to suppress because the magistrate judge had been misled by 1 The district court also found that (1) the affidavit supporting the warrant application had not been based on stale information and (2) the seizure of the firearms and ammunition fell within the plain-view exception to the warrant requirement. These findings are not challenged in Mr. Shrader’s opening brief. Mr. Shrader did discuss the plain-view exception in his reply brief, but this discussion came too late. See United States v. Watson, 766 F.3d 1219, 1230 n.8 (10th Cir.), cert. denied, ___ U.S. ___, 135 S. Ct. 735 (2014). 2 Because Mr. Shrader appears pro se in this appeal, we liberally construe his appellate filings. See Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994). 3 the law enforcement officer’s affidavit. See United States v. Leon, 468 U.S. 897, 923 (1984) (“Suppression . . . remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.”). We reject this argument. The affidavit said that  the explosive had been found in an Arizona postal box on April 11, 2013,  Mr. Shrader had been photographed that day in a vehicle only 1.2 miles away, and  Mr. Shrader had also been photographed much earlier that day in this vehicle at a gas station in Amarillo, Texas, and again some twelve hours later at the south entrance to the Grand Canyon, roughly 65 miles from the drop box where the explosive was found. Mr. Shrader insisted that he had an alibi for April 11 and that the vehicle he had been in had not matched the vehicle in the photographs. 3 The affiant later acknowledged that he had been wrong about the date that the photographs had been taken, stating that the date had actually been April 10, one day before the explosive was found. Mr. Shrader argues that  the affiant should not have been allowed to change the date that the vehicle had been photographed, 3 Mr. Shrader was in a vehicle owned by Ms. Rachelle Raimer. 4   his vehicle had mud flaps and the vehicle in the photographs taken near the drop box did not have mud flaps,  the vehicle in the photographs was silver and his vehicle was brownish, and  the affiant misrepresented conclusions by other investigators. We reject these arguments. The affiant did not correct any dates in the photographs. Instead, he stated that he had meant to use the date of April 10, instead of April 11, when addressing Mr. Shrader’s whereabouts and the discovery of the explosive. The affiant did not alter anything in the photographs, and Mr. Shrader’s attorney acknowledged that he had no evidence indicating alteration of the date stamp on the photographs. Thus, we reject Mr. Shrader’s contention relating to the date change. Mr. Shrader also questions the affiant’s reliance on the photographs of the vehicle. According to Mr. Shrader, his vehicle was brownish and had mud flaps, while the affiant claimed that (1) the vehicle in all of the photographs was silver and (2) in the photographs taken near the drop box, the vehicle appeared to have no mud flaps. But these discrepancies did not taint the ruling. The affiant testified in the suppression hearing that the mud flaps would not have been visible in the photographs taken near the drop box because of the speed and angle of the vehicle. And in district court, Mr. Shrader did not argue that his vehicle was a different color than the vehicle 5 shown in the photographs. Indeed, in the record on appeal, there is only one color photograph of Mr. Shrader’s vehicle. R., Vol. I at 104 (attached). In that photograph, 4 the shading makes virtually everything appear green, so little could be said about the actual color of Mr. Shrader’s vehicle. Id. As a result, the alleged discrepancies did not taint the affiant’s reliance on the photographs. 5 Finally, Mr. Shrader insists that the affiant misrepresented conclusions of other investigators. The affiant noted that other law enforcement officers were looking into allegations that Mr. Shrader had harassed Mr. Stewart. According to Mr. Shrader, the affiant later acknowledged that the investigation had come up empty. That is not correct. The affiant simply noted that the harassment allegations were being handled by others. C. A sufficient nexus existed between Mr. Shrader’s Oklahoma house, letters described in the affidavit, and the explosive. Mr. Shrader claims that there was no nexus between his house and (1) letters described in the affidavit or (2) discovery of the explosive in Arizona. We disagree. 4 The affiant did not rely on this photograph. 5 The affiant admitted that the vehicle’s plate number could not be seen in the photographs taken near the drop box. But the plate number is visible in the Amarillo and Grand Canyon photographs, and this plate number matched the plate for the vehicle that Mr. Shrader had been in. 6  Probable cause existed only if there had been a nexus between the suspected crime and the place to be searched. United States v. Corral- Corral, 899 F.2d 927, 937 (10th Cir. 1990). Thus, the affiant had to provide enough facts to lead a prudent person to believe that the search would reveal evidence of a crime. United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000). In evaluating the facts in the affidavit, the magistrate judge had to make a “practical, common-sense decision based on the totality of the circumstances as set forth in the affidavit.” United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). We afford great deference to that determination unless the affidavit failed to provide a substantial basis for the magistrate judge’s conclusion. Id. The affidavit here provided a substantial basis to conclude that evidence of criminal activity would be found at Mr. Shrader’s house. The affiant provided detailed descriptions of five letters or packages that had been mailed to Mr. Stewart or third parties. Four appeared to frame or discredit Mr. Stewart, and one contained “a brown lump of organic material with a powder substance.” R., Vol. I at 55. Three of the letters bore postmarks for the postal center nearest Mr. Shrader’s house. The affiant added that after bringing these letters to the court’s attention in a civil suit between Mr. Stewart and Mr. Shrader, Mr. Stewart 7 continued to receive harassing mail but the postmarks changed to show processing in a different state. In addition, the affiant noted that a forensic examiner had compared the abusive letters to documents that Mr. Shrader was known to have written. Based on this comparison, the forensic examiner  found similarities in capitalization, punctuation, spelling errors, word choices, and formatting and  concluded that Mr. Shrader had probably written one letter identifying Mr. Stewart as a heroin trafficker. The affiant added that (1) the letters had been prepared on a computer and printed and (2) prior to their dispute, Mr. Stewart had visited Mr. Shrader’s home and had seen a computer and printer. Together, the factual statements in the affidavit created a substantial basis to link the letters to Mr. Shrader’s house. The affiant also set forth sufficient facts linking Mr. Shrader’s house to the explosive. These facts included descriptions of the photographs showing that on April 10, Mr. Shrader had gone through Amarillo, Texas to the Grand Canyon’s south entrance. Finally, the affiant pointed out that two months earlier, Mr. Shrader had shopped at a crafts store in Oklahoma that stocked some of the components found in the package containing the explosive. In their totality, these facts created probable cause for the search by linking Mr. Shrader’s house to the abusive letters and the explosive. 8  D. Mr. Shrader waived his argument that suppression was necessary because firearms had not been listed as items to be seized. Mr. Shrader “believe[s]” that (1) Mr. Stewart told the affiant that there were guns in Mr. Shrader’s house and (2) Mr. Stewart placed them there or had them placed there. Appellant’s Opening Br. at 8-9. According to Mr. Shrader, the affiant omitted from his affidavit any mention of firearms out of fear that Mr. Stewart would be called as a witness at a suppression hearing and testify that he had planted the firearms in the house. Mr. Shrader contends that the omission of firearms in the affidavit rendered the warrant lacking in particularity. Mr. Shrader made this argument in a pro se motion to suppress filed after the trial. The district court denied the motion as improperly filed because Mr. Shrader had counsel at the time and the court had earlier denied hybrid representation. We agree that Mr. Shrader’s particularity argument was not properly presented to the district court. See United States v. Hale, 762 F.3d 1214, 1219-20 (10th Cir. 2014) (concluding that an argument made in a pro se motion “was not properly presented to the district court” because the district court had denied permission to engage in hybrid representation), cert. denied, ___ U.S. ___, 135 S. Ct. 1464 (2015). Moreover, Mr. Shrader raises no appellate challenge to the denial of hybrid representation. 9  Because Mr. Shrader failed to properly present the argument in district court, the argument is considered waived in the absence of good cause. Fed. R. Crim. P. 12(c)(3); see United States v. Burke, 633 F.3d 984, 988, 991 (10th Cir. 2011) (holding that plain-error review under Fed. R. Crim. P. 52 does not apply to pretrial suppression motions and that “motions to suppress evidence, including specific arguments to suppress evidence, raised for the first time on appeal . . . are waived absent a showing of good cause [under Rule 12] for why they were not raised below”). 6 The “good cause” exception is “narrow” and rarely satisfied. Burke, 663 F.3d at 988 (internal quotation marks omitted). Mr. Shrader failed to show good cause because he has not offered any reason for his failure to properly present the particularity argument in district court. Though Mr. Shrader’s attorney declined to present the argument, that omission does not constitute good cause. United States v. Augustine, 742 F.3d 1258, 1266 (10th Cir. 2014). As a result, this argument has been waived. 6 In Burke, we concluded that such arguments are “waived.” 633 F.3d at 991. Since our decision in Burke, Rule 12(e) (which discussed “waiver”) was removed and replaced by section (c)(3) (which does not use the word “waiver”). This change served only to clarify that intent is not required under section (c)(3). Fed. R. Crim. P. 12, advisory committee note-2014 amendment. 10 II. There was no basis to dismiss the indictment based on intrusion into the attorney-client relationship. Mr. Shrader sought to dismiss the indictment based on allegations that his jailers had seized or interrupted his legal mail during his pretrial confinement in the Tulsa, Oklahoma county jail. The district court orally denied the motion to dismiss, finding that (1) the jail was operated by the Tulsa County Sheriff’s Office and (2) Mr. Shrader’s grievance did not implicate the federal district court, the United States Attorney’s Office, or the United States Marshals Service. We review this ruling only for an abuse of discretion. See United States v. Alcaraz–Arellano, 441 F.3d 1252, 1265 (10th Cir. 2006) (“We review for abuse of discretion the district court’s grant or denial of a motion to dismiss an indictment.”). No error took place, for Mr. Shrader offers only conclusory allegations that the Marshals Service was involved in seizing the mail. Accordingly, we conclude that the district court did not abuse its discretion. III. The district court did not err in allowing the prosecution to pursue a theory of constructive possession. Mr. Shrader argues that the prosecution could not rely on a constructive possession theory because it had not been charged in the indictment, had been improperly addressed in closing arguments, and had been unsupported by the evidence. 11  Mr. Shrader’s first two arguments incorrectly assume that constructive possession and actual possession are separate offenses. The statute of conviction, 18 U.S.C. § 922(g)(1), criminalizes “possess[ion]” of a firearm or ammunition by a convicted felon. “It is well settled the required ‘possession’ for purposes of § 922(g) includes both actual and constructive possession.” United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir. 1997). Accordingly, we reject Mr. Shrader’s first two arguments. Mr. Shrader also alleges that the constructive possession theory was unsupported by the evidence. In this vein, Mr. Shrader argues that the prosecution failed to prove that he had known that the guns and ammunition were in his house. Although knowledge is an element of a § 922(g)(1) offense, the fact-finder could reasonably infer knowledge from Mr. Shrader’s exclusive possession of the house where the firearms or ammunition were later discovered. See United States v. Little, ___ F.3d ___, No. 15-2019, 2016 WL 3902581, at *4 (10th Cir. July 19, 2016) (stating that dominion, control, and knowledge can be inferred from exclusive possession, as can intent to exercise command over the objects). The prosecution presented evidence that Mr. Shrader had exclusive possession of the Oklahoma house. This evidence consisted of (1) testimony that officers had recovered Mr. Shrader’s bank statements, a water bill, and other mail in his house and car, (2) the absence of anything to suggest that someone other than Mr. Shrader lived in the house, and (3) 12 surveillance showing that Mr. Shrader was the only person seen entering and leaving the house. The fact-finder could reasonably infer from this evidence that Mr. Shrader had exclusive possession of the house. Thus, we conclude that the evidence on constructive possession was sufficient for a conviction. IV. There was no violation of the Speedy Trial Act. In relevant part, the Speedy Trial Act requires  the filing of an information or indictment “within thirty days from the date on which [an] individual was arrested or served with a summons in connection with such charges” and  the beginning of trial within 70 days “from the filing date . . . of the . . . information or indictment . . . or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(b), (c)(1). Mr. Shrader contends that both his indictment and his trial were untimely under the Act. We disagree. A. Standard of Review We review application of the Act’s legal standards de novo and examine the district court’s factual findings for clear error. United States v. Gonzales, 137 F.3d 1431, 1433 (10th Cir. 1998). B. The indictment was timely. We first consider whether the indictment was timely. Mr. Shrader was indicted in the Northern District of Oklahoma on June 5, 2014. But he was not arrested on the indictment until February 11, 2015, which is when 13 he made his first appearance in the Northern District of Oklahoma on the charge in the Oklahoma indictment. See United States v. Shrader, No. 4:14-CR-00096-CVE-1 (N.D. Okla. Mar. 25, 2015), ECF No. 25 at 1. 7 Thus, there was no violation of the Act’s 30-day deadline for an indictment. See United States v. Bagster, 915 F.2d 607, 611 (10th Cir. 1990) (holding that “if a complaint is filed before federal arrest pursuant to that complaint, the Speedy Trial Act is triggered at the moment of arrest”). 8 Mr. Shrader contends that he was arrested on March 6, 2014 (when the search warrant was executed). But that arrest pertained to the charges in the District of Arizona, which are not involved here. See United States v. Shrader, No. 4:14-mj-00035-PJC-1 (N.D. Okla. Mar. 6, 2014) (docket annotation stating Mr. Shrader was arrested “on charges pending in another district” (capitalization omitted)). 9 The next day, March 7, he was brought before an Oklahoma magistrate judge, who (1) noted that Mr. Shrader had 7 The executed arrest warrant is not part of the record transmitted to this court, but we may take judicial notice of the return. See Binford v. United States, 436 F.3d 1252, 1256 n.7 (10th Cir. 2006). 8 As the district court noted, its docket reflects that Mr. Shrader was arrested in Arizona on the Oklahoma charges on January 8, 2015. Even if we used that date as the date of arrest, the indictment would have been timely. 9 We take judicial notice of the filings in No. 4:14-mj-00035-PJC-1. See Binford, 436 F.3d at 1256 n.7. 14 been ordered to appear in the District of Arizona and (2) ordered the United States marshal to transport Mr. Shrader to the District of Arizona. See id. (N.D. Okla. Mar. 7, 2014), ECF No. 3 at 1 (criminal information sheet from a proceeding before a magistrate judge); id. ECF No. 6 at 1 (order committing Mr. Shrader to the District of Arizona). Thus, the March 6 arrest did not trigger the 30-day deadline for an indictment in this case. 18 U.S.C. § 3161(b). C. The trial was timely. Mr. Shrader’s February 11, 2015 arrest and appearance in the Northern District of Oklahoma triggered the Act’s 70-day limit for trial. See 18 U.S.C. § 3161(c)(1). The district court set a trial date of April 13, 2015, which would have fallen within 70 days of the arrest. In early March 2015, Mr. Shrader moved for a continuance of the April 13 trial date, the motion deadline, and a pre-trial and motions hearing so that his newly-retained counsel would have sufficient time to prepare pretrial motions. In addition, Mr. Shrader signed a waiver of his rights under the Speedy Trial Act. The district court (1) granted the continuance based on the ends of justice (18 U.S.C. § 3161(h)(7)), (2) reset the trial for May 11, 2015, and (3) ruled that the period of time from April 13 through May 11 was excludable from the Act’s 70-day period 15 under § 3161(h)(7). United States v. Shrader, No. 4:14-CR-00096-CVE-1 (N.D. Okla. Mar. 9, 2015), ECF No. 18 at 1-3. 10 Mr. Shrader has not questioned the continuance, alleging instead that he could not be compelled to waive his rights under the Speedy Trial Act. But there is no evidence of compulsion here. Accordingly, we conclude that the trial occurred within the Act’s 70-day limit. 11 V. Conclusion The judgment of the district court is affirmed. Entered for the Court Robert E. Bacharach Circuit Judge 10 The district court’s order granting the continuance is not part of the record transmitted to this court, but we may take judicial notice of the order. See Binford, 436 F.3d at 1256 n.7. 11 Mr. Shrader also states that his trial violated the “120 day rule” of the Interstate Agreement on Detainers Act. Appellant’s Opening Br. at 30. This contention is not sufficiently developed for appellate review. See United States v. Bader, 678 F.3d 858, 894 (10th Cir. 2012). 16 

742 F.2d 1465 *U.S.v.Huffington 83-5677 United States Court of Appeals,Eleventh Circuit. 8/23/84 1 S.D.Fla. AFFIRMED 2 --------------- * Fed.R.App.P. 34(a); 11th Cir.R. 23.

STATE OF MICHIGAN COURT OF APPEALS WILLIAM BEAUMONT HOSPITAL, UNPUBLISHED July 26, 2016 Plaintiff-Appellee, v No. 327238 Oakland Circuit Court WEST BLOOMFIELD MOB, LLC, and LC No. 2014-140857-CK WINFIRECO, LLC, Defendants-Appellants. Before: SHAPIRO, P.J., and HOEKSTRA and RONAYNE KRAUSE, JJ. PER CURIAM. In this arbitration dispute involving a limited liability company and its members, defendants West Bloomfield MOB, LLC (WBMOB) and Winfireco, LLC (Winfireco) appeal as of the right the circuit court order which confirmed the arbitrator’s award and entered judgement in favor of plaintiff William Beaumont Hospital (Beaumont). Because there is no error apparent on the face of the arbitrator’s award and the circuit court did not err by confirming the award, we affirm. WBMOB is a Michigan limited liability company formed in 2006. Its members are Beaumont and Winfireco. WBMOB’s business operations consisted of the ownership of a medical building in West Bloomfield, which Beaumont occupied as a tenant. However, it appears that WBMOB lost the building to foreclosure sometime in 2012. In March of 2012, Beaumont filed a demand for arbitration and thereafter the parties advanced numerous competing claims relating to WBMOB, which were ultimately submitted to arbitration before an American Arbitration Association (AAA) arbitrator, resulting in an arbitration award in Beaumont’s favor in the amount of $1,871,648.88. On September 26, 2014, the circuit court entered an order confirming the arbitration award and entering judgment in Beaumont’s favor in the amount of $1,871,648.88. Defendants moved for reconsideration, which the circuit court denied. Defendants now appeal to this Court as of right. I. STANDARD OF REVIEW This Court reviews de novo a trial court’s decision to vacate or enforce an arbitration award, meaning that we do not extend any deference to the trial court’s determination. Washington v Washington, 283 Mich App 667, 671; 770 NW2d 908 (2009). Nonetheless, judicial review of an arbitration award is “extremely limited.” Fette v Peters Const Co, 310 -1- Mich App 535, 541; 871 NW2d 877 (2015). “A court may not review an arbitrator’s factual findings or decision on the merits.” Id. Likewise, “[c]ourts may not engage in contract interpretation, which is a question for the arbitrator.” Konal v Forlini, 235 Mich App 69, 74; 596 NW2d 630 (1999). Instead, to warrant the vacation of an arbitration award, “error, if any, must be evident from the face of the award and ‘so material or so substantial as to have governed the award, and but for which the award would have been substantially otherwise.’” Gordon Sel- Way, Inc v Spence Bros, Inc, 438 Mich 488, 497; 475 NW2d 704 (1991). When reviewing an arbitrator’s award, “an allegation that the arbitrators have exceeded their powers must be carefully evaluated in order to assure that this claim is not used as a ruse to induce the court to review the merits of the arbitrators’ decision.” Id. For this reason, “a court may only decide whether the arbitrator’s award ‘draws its essence’ from the contract.” Fette, 310 Mich App at 541 (citation omitted). “If the arbitrator in granting the award did not disregard the terms of his employment and the scope of his authority as expressly circumscribed in the contract, judicial review effectively ceases.” Id. (citation omitted). In other words, “as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, a court may not overturn the decision even if convinced that the arbitrator committed a serious error.” Ann Arbor v Am Fedn of State, Co, & Muni Employees (AFSCME) Local 369, 284 Mich App 126, 144; 771 NW2d 843 (2009) (citation and quotation marks omitted). II. PUT OPTION AGREEMENT On appeal, defendants first argue that the arbitrator acted outside his authority by deciding Beaumont’s “put option” claims in addition to Beaumont’s claims relating to the Operating Agreement because the arbitrator drew his authority from the arbitration clause in the Operating Agreement and the put option claims arose under a separate Put Option Agreement, which contained a distinct arbitration clause. Relevant to this argument, by contract, the parties afforded Beaumont a put option, which refers to Beaumont’s contractual right to demand that WBMOB buy back a portion of Beaumont’s membership interest. This right was first created in the Operating Agreement, signed by the parties on August 22, 2006, which provided in pertinent part that “Beaumont shall also have the right to sell Units as described in the Put Option attached as Exhibit ‘2.7b.’” Beaumont and WBMOB then executed the Put Option Agreement on October 13, 2006 and, on that same date, Winfireco executed a document guaranteeing WBMOB’s obligations under the Put Option Agreement. The Put Option Agreement set forth the details of the Put Option and how it should be exercised. Notably, both the Operating Agreement and the Put Option Agreement contained arbitration clauses. The Operating Agreement required arbitration as follows: Disputes and Arbitration. Any dispute under this Agreement shall be submitted to final, exclusive, and binding arbitration. The hearings shall be conducted in accordance with the expedited commercial arbitration rules of the [AAA] then in effect in Southfield, Michigan. Entry of judgment on such award may be made in any court of competent jurisdiction. -2- In comparison, the Put Option Agreement required arbitration as follows: Any controversy, claim, or interpretation of this Agreement shall be arbitrated by an attorney licensed in the State of Michigan selected by the Certified Public Accountant regularly servicing [WBMOB], his or her decision shall be binding on [WBMOB] and all Members and may be entered as a judgment in any court of competent jurisdiction. Based on these two distinct arbitration clauses, defendants now argue that the AAA arbitrator’s authority under the Operating Agreement—to decide Beaumont’s claims relating to the Operating Agreement—did not extend to specific controversies or claims arising under the Put Option Agreement, which were instead subject to arbitration before an arbitrator selected by WBMOB’s accountant. According to defendants, by deciding the put option issues, the arbitrator exceeded his authority such that defendants are entitled to have the arbitration award set aside. We disagree. Under MCR 3.602(J)(2)(c), an arbitration award shall be set aside if “the arbitrator exceeded his or her powers.” “Arbitrators exceed their power when they ‘act beyond the material terms of the contract from which they primarily draw their authority, or in contravention of controlling principles of law.” Saveski v Tiseo Architects, Inc, 261 Mich App 553, 554; 682 NW2d 542 (2004). Notably, if an agreement dictates the method for appointing an arbitrator, that method must be honored. MCL 600.5015 (“If the arbitration agreement provides a method of appointment of arbitrators, this method shall be followed.”)1; Whitaker v Citizens Ins Co of Am, 190 Mich App 436, 440; 476 NW2d 161 (1991). In this case, Beaumont filed the initial demand for arbitration under the Operating Agreement, meaning that the arbitrator was selected in accordance with the AAA rules specified by the parties in the Operating Agreement.2 There is no challenge with respect to the propriety of the arbitrator’s selection under the Operating Agreement, and there is no question that all of the issues in this case—the put option claims and Beaumont’s other claims—were, generally speaking, proper subjects for arbitration. In these circumstances, procedural questions relating to the arbitration, and subsequent questions of contract interpretation, were matters within the arbitrator’s authority to resolve. See Lauren Bienenstock & Assoc, Inc v Susan Lowry, __ Mich 1 MCL 600.5015, as part of the Michigan Arbitration Act, MCL 600.5001 et seq., has been repealed and replaced with the Uniform Arbitration Act, MCL 691.1681 et seq. See 2012 PA 370; 2012 PA 371. However, the Michigan Arbitration Act continues to apply to demands for arbitration—such as the demand in this case—filed before July 1, 2013. See MCL 691.1713; Fette, 310 Mich App at 542. 2 Given that the method of selection in the Operating Agreement was undisputedly followed, this is not a situation where the arbitrator was entirely without authority to act because the method for selecting the arbitrator was not followed. See generally Crawford Group, Inc v Holekamp, 543 F3d 971, 976 (CA 8 2008); Bulko v Morgan Stanley DW Inc, 450 F3d 622, 625 (CA 5 2006); Cargill Rice, Inc v Empresa Nicaraguense Dealimentos Basicos, 25 F3d 223, 226 (CA 4 1994). -3- App __, __; __ NW2d __ (2016) (Docket No. 323986), slip op at 4-6; Cent W Virginia Energy, Inc v Bayer Cropscience LP, 645 F3d 267, 272-274 n 3 (CA 4 2011); Dockser v Schwartzberg, 433 F3d 421, 426 (CA 4 2006); Shaw’s Supermarkets, Inc v United Food & Commercial Workers Union, Local 791, AFL-CIO, 321 F3d 251, 254 (CA 1 2003). Indeed, defendants appear to concede on appeal that the arbitrator could analyze the contracts to decide whether, as a procedural matter, the put option claims must proceed separately before an arbitrator selected by WBMOB’s accountant. The fact that the arbitrator had authority to decide this issue is a critical point for purposes of our review because it means that the arbitrator’s decision is entitled to considerable deference on appeal.3 See Bell v Seabury, 243 Mich App 413, 422; 622 NW2d 347 (2000). When reviewing this decision on appeal, we cannot second-guess the merits of the arbitrator’s decision or substitute our judgment for that of the arbitrator. See Ann Arbor, 284 Mich App at 144; Fette, 310 Mich App at 541; Konal, 235 Mich App at 74. That is, faced with a procedural, contract-related question at least arguably within its authority to decide, the arbitrator stated: In the present Arbitration, [Beaumont] has asserted claims that arise out of the Operating Agreement including a claim for money owed under the Put Option. *** The Put Option Arbitration clause only applies to controversy, claim or interpretation of the Put Option. The arbitration agreement contained in the Operating Agreement applies to any dispute under the Operating Agreement which includes disputes that are not included in the Put Option. Accordingly, the two (2) Arbitration Agreements do not cover the same subject matter and, therefore, the Put Option Arbitration Clause does not supersede the Arbitration Agreement contained in the Operating Agreement. The American Arbitration Association, consistent with [arbitration provision] of the Operating Agreement, does have jurisdiction over all disputes arising out of the Operating Agreement. 3 Beaumont argues on appeal that defendants waived their claims that the arbitrator could not decide the put option issues. Contrary to this argument, defendants repeatedly objected to the arbitrator’s consideration of the put option issues—in circuit court before arbitration, several times before the arbitrator, and again in circuit court after the arbitration. This is certainly not a case where defendants participated in arbitration “without objection” or adopted a “wait and see posture.” See Arrow Overall Supply Co v Peloquin Enterprises, 414 Mich 95, 99-100; 323 NW2d 1 (1982). For this reason, we do not consider the issue waived. Nonetheless, our review of the arbitrator’s award at this stage is very limited. Cf. Oakland-Macomb Interceptor Drain Drainage Dist v Ric-Man Const, Inc, 304 Mich App 46, 55-59; 850 NW2d 498 (2014) (engaging in de novo contract review before arbitration to enforce contractual arbitrator selection requirements, and specifically noting that, after arbitration, “it is very improbable that a court will offer relief”). -4- These determinations by the arbitrator—that the Operating Agreement arbitration clause encompassed all the issues involved, including the put option (which was incorporated by reference in the Operating Agreement), and that the Put Option arbitration clause was not intended to supersede the Operating Agreement arbitration clause—constituted an arguable construal of the contracts at issue in light of the arguments raised by the parties at that time. Because the arbitrator was at least arguably construing the contracts and acting within his authority, this interpretation cannot be overturned on appeal. See Ann Arbor, 284 Mich App at 144. Moreover, even assuming some error in the arbitrator’s contract interpretation, it appears that, at most, the identity of the arbitrator would possibly have been different, but defendants have not addressed how, with a different arbitrator, the award would have been “substantially otherwise.” Gordon Sel-Way, Inc, 438 Mich at 497. Defendants were afforded arbitration before a neutral arbitrator, and the arbitrator applied the AAA rules which, because the Put Option Agreement does not specify the use of other rules, applied to both the Operating Agreement and Put Option Agreement. In these circumstances, at this stage in the proceedings, even assuming a technical error in the selection of the arbitrator for purposes of deciding the put option claims, defendants have not shown the prejudice necessary to merit the vacation of an arbitration award. Cf. J R Snyder Co, Inc v Soble, 57 Mich App 485, 489; 226 NW2d 276 (1975). III. MEMBER DISTRIBUTIONS On appeal, defendants also contend that the arbitrator’s award to Beaumont on its put option and preferred return claims amounted to a member distribution in violation of the Michigan Limited Liability Company Act, MCL 450.4101 et seq. In particular, defendants note that MCL 450.4307(1) precludes a limited liability company from making distributions to members if the distributions would leave the company insolvent. According to defendants, WBMOB’s only asset consists of its claims against Beaumont, some of which the arbitrator resolved in defendants’ favor. However, the arbitrator then entered a net award, subtracting sums owed by Beaumont to defendants from the amount owed by defendants to Beaumont. Defendants maintain that the end result is an improper member distribution to Beaumont which left WBMOB unable to pay its creditors, namely Winfire Management. The flaw in defendants’ argument is that we cannot perceive such errors from the face of the award and we may not, in the course of our review, make factual findings or engage in a review of the arbitrator’s mental pathway leading to the award. Fette, 310 Mich App at 541; Washington, 283 Mich App at 672. Specifically, defendants’ argument is premised on the assertion that the arbitrator’s award to Beaumont will leave WBMOB insolvent and unable to pay creditors in violation of MCL 450.4307(1). But, on the face of the award, there is no indication that payment on Beaumont’s put option and preferred return claims will necessarily leave WBMOB insolvent or unable to pay creditors. The only creditor that defendants identify is non-party Winfireco Management, but the arbitrator expressly stated that it would not rule on the management company’s claims for lease commissions because the “claims appear moot.” No other creditors are identified in the award (or by defendants on appeal), and thus there is simply no clear indication that the award in Beaumont’s favor will improperly usurp the rights of any creditor. Likewise, it is not factually apparent from the face of the award whether the award will in fact leave WBMOB insolvent, particularly when the arbitrator stated that it was not ruling on -5- “the claim of liquidation of WBMOB.” Moreover, as argued by Beaumont on appeal, it is possible that the arbitrator concluded that Beaumont became a creditor of WBMOB when it exercised its put option (which included a right to the preferred return at closing), such that Beaumont would be entitled to payment as a creditor under the Limited Liability Company Act on par with other unsecured creditors. See generally MCL 450.4304(1); MCL 450.4307(4) and (5). Quite simply, without parsing the arbitrator’s mental pathway, which we cannot do, there is no basis to conclude that the arbitrator committed a substantial error. Consequently, the arbitrator’s award must be affirmed, and the circuit court did not err by entering judgment in Beaumont’s favor. Affirmed. /s/ Douglas B. Shapiro /s/ Joel P. Hoekstra /s/ Amy Ronayne Krause -6- 

216 P.3d 568 (2009) Christopher E. CRONCE, Appellant, v. STATE of Alaska, Appellee. No. A-9855. Court of Appeals of Alaska. September 25, 2009. Brian T. Duffy, Assistant Public Advocate, and Joshua Fink, Public Advocate, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges. OPINION BOLGER, Judge. Christopher E. Cronce was convicted of assault in the second degree[1] and assault in the third degree[2] based on an incident when he attacked a man named Michael Wims. Superior Court Judge John E. Suddock imposed separate convictions and sentences for these two offenses. We conclude that these separate statutory violations must merge because, under the facts of this case, there was no difference in conduct or intent sufficient to warrant multiple punishments. We therefore *569 vacate the separate conviction for third-degree assault. Background Cronce confronted Michael Wims as Wims walked out of the Casino Bar in Kenai. The men exchanged words and Cronce head-butted Wims in the face. Wims tried to escape by running across the parking lot and climbing a nearby fence, but Cronce dragged Wims back to the ground and started to beat him and kick him. Cronce continued to beat Wims as he lay helplessly on the ground until Kenai Police Officer James Johnson arrived in response to a 911 call. Cronce was charged with one count of second-degree assault and one count of third-degree assault.[3] At trial, Cronce testified that the initial altercation with Wims was mutual and that he pursued Wims through the parking lot simply to talk about what happened. As they approached the fence, the argument continued and again escalated into a fight. During closing arguments, the prosecutor explained to the jury that the State's theory of the case was based on both the initial assault against Wims in the parking lot and what occurred after Cronce chased him down—that is, even if the initial head-butting involved mutual combat, Cronce was still guilty because he chased Wims down and continued to beat him. During deliberations, the jury sent a note to the judge asking if they should deliberate on the third-degree assault charge after they had reached a decision on the second-degree assault charge. In the process of discussing this note with the attorneys, the judge suggested that there might be a double jeopardy issue as to the merger of these counts. The judge then responded to the jury's question by instructing them to deliberate on both counts. The jury eventually reached a verdict of guilty on both counts. At sentencing, the judge reconsidered his earlier opinion that Cronce's assault convictions should be merged. The judge concluded that the third-degree assault occurred when Cronce chased Wims through the parking lot, and the second-degree assault occurred when Cronce began to physically beat him. Based on this reasoning, the judge imposed separate convictions and sentences for the two charges: 3 years' imprisonment with 2 years suspended for second-degree assault, and 24 months' imprisonment with 23 months suspended for third-degree assault, to be served consecutively. Cronce now appeals. Discussion In Whitton v. State,[4] the Alaska Supreme Court established a test to determine whether the violation of two different criminal statutes during a single criminal event should be treated as a single punishable offense under the double jeopardy clause of the Alaska Constitution: The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether there were involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments.... If such differences in intent or conduct are significant or substantial in relation to the social interests involved, multiple sentences may be imposed, and the constitutional *570 prohibition against double jeopardy will not be violated.[5] To apply this test, we first analyze whether the two statutory offenses as applied to the evidence in this case involved differences in conduct or intent. Whether two offenses qualify as a single offense for double jeopardy purposes under Whitton is an issue of law, which we review anew, independently of the trial court's decision.[6] We have previously approved separate convictions for assaults where there were clear breaks in time and circumstances between the offenses.[7] But when the record is ambiguous as to whether the defendant has committed one offense or two, then the defendant should receive only a single conviction and sentence.[8] Accordingly, in an ambiguous case, we may be required to conclude that separate convictions are forbidden, even after the trial judge concludes that the crimes involve separate conduct.[9] This is a case where the record is ambiguous. There is nothing in the indictment to suggest that there were substantial differences in the conduct charged for each offense. Likewise, the jury instructions merely simplified the language of the indictment without suggesting that the separate counts were based on different conduct. The instruction on Count I required the jury to find that "Christopher E. Cronce, with intent to cause physical injury to Michael Wims, caused physical injury to Michael Wims," and the instruction on Count II required the jury to find that "Christopher E. Cronce recklessly placed Michael Wims in fear of imminent serious physical injury." The jury instructions for both counts, however, required the jury to find that Cronce committed these offenses "by means of a dangerous instrument, to-wit: hands, arms, and/or feet." Similarly, the final arguments of counsel did not draw any clear distinctions between the conduct the prosecution relied on to establish these separate counts. In other words, both the prosecutor's argument and the jury instructions left open the possibility that the jury could reach a guilty verdict on the third-degree assault charge based on conduct supporting the guilty verdict on the second-degree assault charge.[10] And at the sentencing hearing, while opposing Cronce's request for certain mitigating factors, the prosecutor suggested that the same evidence supported both offenses: Mr. Wims fled as quickly as he could to get away from [Cronce], and he chased him down and savagely beat him. The beating that occurred after the fact, the punching and kicking, the facial injuries that Mr. Wims received in the parking lot behind the other building away from the bar parking lot, after any allegation of a perceived threat or a swing by Mr. Wims, it's that conduct that we're really talking about. The judge then interrupted with a question: "As to both charges?" And the prosecutor confirmed that the same evidence supported both charges: As to both charges, Your Honor. The fear assault is his feelings of fear that he experienced, which is the assault three, that he experienced as this man was beating him—kicking him and beating him, his fear of imminent serious physical injury or death. This response suggests that the prosecutor believed that Cronce's conduct establishing the fear assault charged in Count II was the same conduct that established the injury assault charged in Count I. *571 Later in the hearing, the judge acknowledged that the prosecutor's opinion would "wipe out" the offense charged in Count II. But the judge declined to merge the sentences on the two convictions based on his alternative interpretation of the trial evidence: [Y]ou can make an argument ... that perhaps under our law the two offenses merge, but as I view it, the assault started during the chase down the road, and that was the fear-based [assault]—nothing in this whole deal was scarier than running down that road with two jackals after you knowing what was going to happen as soon as they caught you, and I think that's a distinct enough interest to justify the court imposing a second sentence for the class C offense. The judge's conclusion on this issue seems questionable considering the way the jury instructions applied to the evidence presented at trial. For the third-degree assault count, the jury was instructed to determine whether Cronce used his "hands, arms, and/or feet" to frighten Wims. But Cronce did not begin to strike Wims with his "hands, arms, and/or feet" as dangerous instruments until after he chased Wims down and pulled him off the fence. There was little evidence that Cronce intended to use his hands, arms, and feet as dangerous instruments when he chased Wims across the parking lot.[11] Taking this jury instruction into account, it seems more likely that the jury convicted Cronce for third-degree assault based on fear he induced when he began beating Wims with his hands, arms, and feet—exactly the same theory that the prosecutor advanced at the sentencing hearing. Under this theory, the intent and conduct that the prosecution relied on to establish the third-degree assault charge is entirely subsumed by the intent and conduct that established the second-degree assault charge.[12] In any event, the weakness in the judge's alternative theory for the third-degree assault charge convinces us that these circumstances were too ambiguous to support two separate convictions. We next analyze the societal interests involved to determine whether the differences between these two crimes merit separate punishment. The State argues that the second-degree assault statute protects against violent physical injury and that the third-degree assault statute protects against being placed in fear of being subject as to serious physical injury. We conclude that these asserted interests are very similar and that both involve the identical goal of protecting the physical safety of individual citizens. This conclusion is implicit in a previous decision where we considered convictions for an injury assault and a fear assault involving the same incident. In Soundara v. State,[13] the defendant was convicted of two charges of third-degree assault: one charge for recklessly causing physical injury to the victim by means of a dangerous instrument, and a second charge for recklessly placing the victim in fear of imminent serious physical injury by means of a dangerous instrument.[14] We concluded that the two convictions should merge because the jury was not instructed to determine whether the two convictions were based on a single underlying act or two separate acts.[15] In the present case, we likewise cannot ascertain any significant difference between the intent and conduct required for Cronce's two assault convictions. And the societal interests involved appear to be nearly identical. We therefore conclude that only one conviction may be imposed for these two statutory violations. *572 Conclusion We VACATE the separate judgment of conviction on Count II. The superior court must enter one merged conviction for second-degree assault.[16] On remand, the court may reconsider the sentence for this merged conviction as long as the sentence does not exceed the composite sentence imposed for both counts at the original sentencing hearing.[17] MANNHEIMER, Judge, concurring. I agree with my colleagues that Cronce could not properly be convicted of both second- and third-degree assault under the facts of this case. I write separately because my analysis of the case is a little different from the analysis presented in the lead opinion. In answering the question of whether Cronce could properly receive separate convictions for second-degree assault and third-degree assault, my colleagues apply a constitutional analysis: they conclude that separate convictions are barred by the double jeopardy clause of the Alaska Constitution as construed by our supreme court in Whitton v. State, 479 P.2d 302 (Alaska 1970). I do not believe that a constitutional analysis is required. Rather, the question is one of substantive criminal law—an issue of statutory interpretation and legislative intent. The double jeopardy doctrine announced in Whitton—the doctrine that our constitution authorizes the judiciary to make policy decisions about how many separate convictions are allowed in a given situation—has been undercut by more recent decisions of the United States Supreme Court and the Alaska Supreme Court. As the United States Supreme Court declared in Missouri v. Hunter, when the question is whether a defendant may lawfully be subjected to multiple punishments for a single criminal act or a single course of criminal conduct, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing more punishment than the legislature intended".[1] The Alaska Supreme Court acknowledged this principle of federal double jeopardy law in Todd v. State, 917 P.2d 674, 677-78 (Alaska 1996), a case that raised the issue of whether separate punishments can lawfully be imposed for both the offense of felony murder and the underlying felony. It is true that, after our supreme court acknowledged the rule announced in Missouri v. Hunter, the supreme court then separately analyzed the double jeopardy issue under the Whitton rule (see Todd, 917 P.2d at 681-83)—thus implying that the Whitton analysis requires Alaska courts to consider something other than legislative intent when resolving an issue of double punishment. But a careful reading of the supreme court's opinion—in particular, the section in which the court analyzed the double jeopardy issue under Whitton—reveals that the court resolved the issue in exactly the same way that federal courts would resolve it under Missouri v. Hunter. That is, the supreme court looked to the Alaska Legislature's intent. The supreme court couched its decision as a ruling that, when a defendant is charged with felony murder, the defendant's underlying felony is not a lesser included offense of the murder charge. Todd, 917 P.2d at 682. However, the court openly acknowledged that, under Alaska's test for greater and lesser included offenses, these two offenses do indeed stand in the relationship of greater offense and lesser included offense. Id. The supreme court then declared that, notwithstanding this fact, "felony murder [is] a distinct area of the criminal law [that is] not governed by [the] traditional lesser-included[-]offense analysis". Id. How did the court explain this conclusion? The court declared that "[the] lesser-included offense analysis [applies to] offenses with overlapping elements ... [where] it is not clear whether the legislature intended [that] the defendant be punished under both statut[es]...." Id. And, in the case of the felony-murder *573 statute, "the intent of the legislature to allow multiple punishments is clear." Id. In other words, the Whitton analysis that the supreme court applied in Todd hinged on legislative intent—the same test that federal courts employ under Missouri v. Hunter. Based on Hunter and Todd, I believe that the primary question to be asked in the present case is this: In circumstances where a defendant approaches a victim in a threatening manner, the victim perceives the threat, and then the defendant carries out the threat by attacking the victim and inflicting injury, did the Alaska Legislature intend to permit the State to convict the defendant of separate counts of assault—one conviction for the threatening conduct that immediately preceded the physical assault, and the other conviction for the physical assault itself? Allowing two convictions in this situation is not a traditional approach. Normally, if the physical attack is actually launched (i.e., if the defendant moves beyond threatening conduct), the immediately preceding threat is seen as merely a preliminary step in the attack, and separate convictions are not imposed. For example, in Tuckfield v. State, 621 P.2d 1350, 1352 (Alaska 1981), the supreme court held that a defendant could not be separately convicted of both an assault with intent to commit rape and the completed rape arising from the same assault. Although the supreme court portrayed its decision as an application of the double jeopardy rule announced in Whitton, the decision in Tuckfield appears to be a straightforward application of the rule now codified in AS 11.31.140(c)—the rule that "[a] person may not be convicted on the basis of the same course of conduct of both [an attempt and] the crime that is the object of the attempt". This Court reached the same result in Tookak v. State, 648 P.2d 1018, 1023 (Alaska App.1982), where we concluded that the defendant could not be convicted of both assault with intent to commit rape and the completed rape when the assault and the completed rape were merely separate stages of one continuous assault culminating in the rape of the victim. The State argues that allowing two convictions in Cronce's case (and other analogous cases) makes sense because the two convictions would reflect a vindication of separate societal values: first, that a person should be free from fear; and second, that a person should not be injured. It is true that one might draw a distinction between the two stages of the assault in this case: the first stage being the instilling of fear during the chase, the second stage being the successful capture of the victim and the completion of the attack. Conceivably, the legislature might wish to divide these two stages of the continuous assaultive act into separate offenses, as the State now proposes. It is also conceivable that any such legislation would raise constitutional issues. But for now, the question is one of legislative intent: whether, under our current assault statutes, the Alaska Legislature has already authorized separate convictions for the two stages of a continuous act of assault like the one in this case. As I noted earlier, allowing two convictions in situations like this is not a normal or typical resolution of the matter. The State is essentially arguing that anyone who physically attacks another person will commit two separately punishable assaults if the victim perceives (no matter how fleetingly) that the attack is coming. There is nothing in the legislative commentary to Alaska's assault statutes (AS 11.41.200-230) suggesting that the legislature intended to adopt this non-traditional approach. Accordingly, I conclude that, in situations like the one presented here, defendants can not be separately convicted and punished for (1) instilling fear in their victims by threatening to attack them, and then (2) completing the attack. I reach this conclusion as a matter of statutory interpretation and substantive criminal law, rather than under a double jeopardy analysis. NOTES [1] AS 11.41.210(a)(1)-(3). [2] AS 11.41.220(a)(1)(A). [3] Count I of the indictment charged: Randall S. Cronce and Christopher E. Cronce with intent to cause physical injury to Michael Wims, caused physical injury to Michael Wims by means of a dangerous instrument, to-wit: hands, arms, and/or feet; and/or Randall S. Cronce and Christopher E. Cronce recklessly cause serious physical injury to Michael Wims; and/or Randall S. Cronce and Christopher E. Cronce recklessly caused serious physical injury to Michael Wims by repeated assaults, even if each assault individually did not cause serious physical injury. Count II of the indictment charged that "Randall S. Cronce and Christopher E. Cronce recklessly placed Michael Wims in fear of imminent serious physical injury by means of a dangerous instrument, to-wit: hands, arms and/or feet." [4] 479 P.2d 302 (Alaska 1970). [5] Id. at 312. [6] Erickson v. State, 950 P.2d 580, 585 (Alaska App. 1997). [7] See, e.g., Williams v. State, 928 P.2d 600, 604 (Alaska App. 1996). [8] Atkinson v. State, 869 P.2d 486, 495-96 (Alaska App.1994); Horton v. State, 758 P.2d 628, 632 (Alaska App.1988) (noting that the State has the burden of proving each offense beyond a reasonable doubt); see also Mill v. State, 585 P.2d 546, 552 n. 4 (Alaska 1978) ("In marginal cases doubt should be resolved against turning a single transaction into multiple offenses"). [9] See Moore v. State, 123 P.3d 1081, 1092-93 (Alaska App.2005). [10] See State v. McDonald, 872 P.2d 627, 660 (Alaska App.1994). [11] Cf. Konrad v. State, 763 P.2d 1369, 1374-76 (Alaska App.1988) (noting that the defendant's use of his hands to strike the victim on the head and ribs was not sufficient to support a finding that he employed his hands as a dangerous instrument). [12] See Whitton, 479 P.2d at 314 ("Since the more serious offense already proscribes and punishes the activity of the less serious offense, the differences between the two offenses must be deemed insubstantial or insignificant in relation to the social interests involved"). [13] 107 P.3d 290 (Alaska App.2005). [14] Id. at 299. [15] Id. [16] See Hurd v. State, 107 P.3d 314, 322 (Alaska App.2005). [17] See Allain v. State, 810 P.2d 1019, 1021 (Alaska App.1991). [1] 459 U.S. 359, 365-66, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A14-0886 Michael O’Byrne, et al., Appellants, vs. Spring Valley Mutual Insurance Company, Respondent. Filed July 6, 2015 Affirmed in part and reversed in part Hooten, Judge Fillmore County District Court File No. 23-CV-12-141 David W. VanDerHeyden, VanDerHeyden Law Office, P.A., Rochester, Minnesota; and Scott Wilson, Minneapolis, Minnesota (for appellants) Paul Wocken, Willenbring, Dahl, Wocken & Zimmermann, PLLC, Cold Spring, Minnesota (for respondent) Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and Klaphake, Judge.  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.  UNPUBLISHED OPINION HOOTEN, Judge A fire of unknown origin destroyed the home of appellants, father and daughter insureds, and when respondent-insurer claimed that appellants breached the terms of the insurance policy and refused to provide coverage, appellants brought suit. The jury determined that appellants breached the policy and that neither was entitled to coverage. Appellants brought a post-trial motion claiming that they were entitled to $269,875 for their losses because respondent agreed to settle the dispute, but the district court denied their motion. Appellant-daughter requested that the district court grant her motion for judgment as a matter of law relative to the issue of whether she breached the policy. The district court granted her motion, but held that, because her father would receive the benefits of any proceeds paid to her, she was not entitled to recover under the insurance policy. Appellants now contest the district court’s determination that the parties did not agree to settle and challenge the denial of recovery to appellant-daughter. In a related appeal, respondent challenges the district court’s grant of judgment as a matter of law on behalf of appellant- daughter. Because the district court did not abuse its discretion in finding that respondent did not settle appellants’ claim, but did err in granting judgment as a matter of law to appellant-daughter, we affirm in part and reverse in part, concluding that appellants are not entitled to any recovery against respondent. FACTS In March 2011, a fire of unknown origin destroyed a house located at 724 Margaret Street in Chatfield. Appellants Allison Stoehr and her father, Michael O’Byrne, 2 were the named insureds on respondent Spring Valley Mutual Insurance Company’s home insurance policy covering the house. Spring Valley refused to cover the loss, and O’Byrne and Stoehr brought a breach of contract claim against Spring Valley. A jury heard the following testimony at trial. Bradley Kullot, a claims adjuster for Spring Valley, testified about his history with O’Byrne. Kullot stated that he was in charge of processing a previous claim that O’Byrne’s wife filed with Spring Valley in April 2009 when a fire of unknown origin destroyed their home. Kullot was still working for Spring Valley two years later. When he learned that another one of O’Byrne’s homes had caught fire, he stated, “I have got to get down to this fire and see what is going on” because of “the history that I had with Mr. O’Byrne with a previous fire.” Following the fire’s containment, Kullot proceeded to photograph as much of the house as he could. Kullot stated that when he took his photographs no one had removed any items from the house. In the following weeks, he returned to the house two more times to take more photographs. After his initial investigation, Kullot requested that O’Byrne and Stoehr fill in the blank spaces on the proof-of-loss form that Spring Valley provided them so the two could detail their losses. Kullot also notified O’Byrne and Stoehr that they were not to remove any items from the property or disturb the wreckage because the cause of the fire was still being investigated. Kullot informed them that the two did not have to worry about any further damage to the house because Spring Valley had retained a third party to secure the property. After learning that the cause of the fire was still being investigated, 3 O’Byrne immediately proceeded to personally demolish the wreckage by operating a forklift and “ramming” it repeatedly into the house over the third-party agent’s protest. Kullot was informed that O’Byrne personally demolished the wreckage and soon after received O’Byrne and Stoehr’s completed proof-of-loss form. On the form, O’Byrne and Stoehr claimed that the fire caused $270,375 in damage to their property, which included $30,100 of personal property located within the house. The $30,100 figure was hand-written on the proof-of-loss form, and attached to the form was a four- page list detailing more than 100 items of personal property that the two claimed were damaged by the fire. Kullot stated that after examining the wreckage, his own photographs, and Spring Valley’s files regarding the fire, he “did not see much personal property in the house” and could not verify the existence of most of the personal property that O’Byrne and Stoehr claimed that the fire had damaged.1 One month later, Spring Valley informed O’Byrne and Stoehr that Spring Valley would not cover their loss because it alleged that the two had breached the insurance contract by submitting a false proof-of-loss form in which they claimed damages for non-existent household property. Stoehr testified next about her role in the alleged fraud. She first admitted that the property on which the house was located was titled solely in her name, and that as a named insured on the policy, she initiated this lawsuit against Spring Valley. But, she testified that her only role during the processing of the insurance claim was in signing the 1 The jury later heard evidence that the items that O’Byrne and Stoehr claimed were damaged by the fire, such as a refrigerator, a stove, and other large household appliances, would not have been completely destroyed by this fire, and evidence of their existence following the fire would have remained. 4 proof-of-loss form “at the request” of O’Byrne. During cross-examination, counsel for Spring Valley asked Stoehr about her testimony and previous statements that her only role in the proof-of-loss statement was confined to signing the form: Q: Let me go down to the next item [on Exhibit 157 the proof-of-loss form] if you would be kind enough to look at that. Total amount claimed for household personal property. Do you see that? A: Yes. .... Q: Now you have testified both in your statement under oath and in your deposition before today that you didn’t have any interest in any personal household property at [the property] on [March 3, 2011]. Isn’t that true? A: Yes. Q: So none of the household personal property that was attached to 157, the itemized personal property household list, none of that property was your household personal property. Is that a fair statement? A: Yes. .... Q: By the way, all of the notations on the far right column in Exhibit 157, you did not participate in any way, shape, or fashion if I understand your pretrial testimony in coming to those amounts. Was that a fair statement? A: Yep. You asked me that earlier. Yes. .... Q: Would it be fair to say, Ms. Stoehr, that you made no effort in signing Exhibit 157 to determine the accuracy of the values of the personal property on those four pages that we just looked at? A: I did not participate in that. Q: And you made no attempt to determine the accuracy of that information. Isn’t that true? A: True. Q: All right. Nor did you make any attempt to determine the accuracy of the amounts that we see on the proof of loss itself, the handwritten notations to the right. Would that be a fair statement as well? A: Yes. 5  On re-cross, Stoehr admitted that she signed her name immediately below a statement on the proof-of-loss form which indicated that the document’s signer was representing to Spring Valley that all of the statements and figures on the document were “true.” After hearing from other witnesses not relevant to this appeal, the district court instructed the jury and provided the jury with a special verdict form. The special verdict form included the questions, “Did Michael O’Byrne breach the contract (the insurance policy) with Spring Valley Mutual Insurance Company?” and “Did Allison Stoehr breach the contract (the insurance policy) with Spring Valley Mutual Insurance Company?” After deliberating, the jury wrote “yes” on the special verdict form as to both questions. The special verdict form also included the question, “What were the dollar amounts of the following expenses and damage that were caused by the [March 3, 2011] fire[?]” On the line for damages resulting from loss of “[h]ousehold personal property,” the jury wrote “0.” After the unfavorable verdict, O’Byrne and Stoehr alleged for the first time that Spring Valley had actually agreed to settle their claim, and they brought a post-trial motion to “enforce” a purported settlement agreement between the parties. During the trial, O’Byrne and Stoehr discovered that Spring Valley introduced a duplicate of their proof-of-loss form as a trial exhibit. But, Spring Valley’s duplicate contained Kullot’s signature above the “Adjuster’s Signature” line, whereas the proof-of-loss form that 6 O’Byrne and Stoehr introduced at trial contained only their signatures.2 They alleged that with Kullot’s signature on this copy, Spring Valley had accepted their offer to settle the dispute for $269,875. The district court denied their motion, finding that Spring Valley never accepted their offer to settle because Kullot did not have the power to authorize a settlement on behalf of Spring Valley. Stoehr brought a post-trial motion for judgment as a matter of law under Minn. R. Civ. P. 50.02, in which she requested that the district court hold that she did not breach the contract. The district court granted her motion, determining that she was an “innocent” co-insured and had not breached the contract. After determining that Stoehr did not breach the contract, the district court then had to determine if she could receive any proceeds as an innocent co-insured under the reasoning of Hogs Unlimited v. Farm Bureau Mut. Ins. Co., 401 N.W.2d 381 (Minn. 1987). In Hogs Unlimited, our supreme court held that when a co-insured breaches an insurance policy but another co-insured does not participate in the breach and is therefore “innocent,” the innocent co-insured “may recover [her] proportionate interest under the insurance policy,” provided that “payment of the insurance proceeds to the innocent [co-insured] can be accomplished to deny, in a practical manner, any appreciable benefit to the guilty [co-insured].” 401 N.W.2d at 386. The district court conducted a post-trial hearing and received post-trial submissions but determined that Stoehr could not recover any insurance proceeds. The 2 Kullot submitted a post-trial affidavit in which he claimed that he signed the proof-of- loss form two years after O’Byrne and Stoehr sent the form to Spring Valley and four days before trial was set to begin. He stated he signed it because Spring Valley’s internal rules dictated that after reviewing the claim he sign the document, which he had not previously done. 7 district court reached its conclusion upon hearing that Stoehr no longer had an economic interest in the insurance proceeds. The district court found that Stoehr and O’Byrne had assigned their interests in any recovery from the lawsuit to Eastwood Bank to secure a mortgage that the bank held on another property owned by O’Byrne. The district court noted that because any money awarded to Stoehr would go to Eastwood Bank and be used solely to reduce O’Byrne’s outstanding mortgage debt, there was no way to distribute proceeds to Stoehr without directly benefitting O’Byrne in violation of the Hogs Unlimited requirement that the “guilty” co-insured be denied any benefit from the distribution of insurance proceeds to an innocent co-insured. O’Byrne and Stoehr appealed, challenging the district court’s refusal to “enforce” the purported settlement agreement and the district court’s determination that Stoehr could not receive any insurance proceeds without directly benefiting O’Byrne. Spring Valley filed a related appeal, challenging the district court’s decision to grant Stoehr’s motion for judgment as a matter of law. DECISION I. O’Byrne and Stoehr contend that they reached a binding settlement agreement with Spring Valley in which they would relinquish all claims for any insurance proceeds from Spring Valley relating to the fire in exchange for $269,875. O’Byrne and Stoehr argue that the district court erred by not “enforcing” this settlement agreement. A settlement agreement is a contract. Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 581–82 (Minn. 2010). If the parties dispute whether a contract exists, “the existence and 8 terms of a contract are questions for the fact finder.” Morrisette v. Harrison Int’l Corp., 486 N.W.2d 424, 427 (Minn. 1992). “[T]he surrounding facts and circumstances in the context of the entire transaction” are relevant to determining whether the parties formed a contract. Thomas B. Olson & Assocs., P.A. v. Leffert, Jay & Polglaze, P.A., 756 N.W.2d 907, 919 (Minn. App. 2008) (quotation omitted), review denied (Minn. Jan. 20, 2009). Forming a contract requires a specific and definite offer, acceptance of that offer, and consideration. Id. at 918. When reviewing mixed questions of fact and law, appellate courts grant the district court’s findings of fact “great deference” while remaining free to correct any erroneous legal conclusions. Porch v. Gen. Motors Acceptance Corp., 642 N.W.2d 473, 477 (Minn. App. 2002), review denied (Minn. June 26, 2002). O’Byrne and Stoehr contend that their decision to sign the proof-of-loss statement in May 2011 reflects a specific and definite offer to settle the insurance claim for $269,875. They argue that Kullot’s decision to sign the document in February 2013 indicates that Spring Valley accepted this offer. This argument failed to persuade the district court, which found that Kullot did not have the power to authorize a settlement on behalf of Spring Valley since he was only a claims adjuster.3 The district court noted that Kullot signed his name in the space for the claims adjuster to sign, but the proof-of-loss form also contained a signature line next to the words “Claim Approved by,” and no 3 The jury would normally decide this question of fact. But, Stoehr and O’Byrne waited until after trial to bring their claim, and they requested a new trial to litigate this issue. The district court denied their motion for a new trial and then denied their claim on the merits. O’Byrne and Stoehr do not appeal the district court’s denial of their motion for a new trial. Accordingly, the district court is the fact finder with respect to this issue. 9 one’s signature appeared on this line. To further support its conclusion, the district court examined the 2009 proof-of-loss form relating to O’Byrne’s previous fire, and the district court noted that the 2009 form contained a claims adjuster’s signature and the additional signature of the manager-president of Spring Valley on the “Claims Approved by” line when Spring Valley agreed to cover the loss. Finally, the district court rejected O’Byrne and Stoehr’s argument after noting that “all of the evidence at our trial made it abundantly clear” that Spring Valley did not intend to settle the dispute. O’Byrne and Stoehr argue that the district court erred in its conclusion because “[a]ll of the extrinsic circumstances considered by the [d]istrict [c]ourt . . . are beside the point” and cannot be considered when the district court is interpreting “an unambiguous fully integrated agreement” that indicated that Spring Valley agreed to settled the dispute. Their argument fails for two reasons. First, the district court’s finding that Kullot did not have the power to bind the company was based on its examination of the document itself; the district court did not need to rely on any “extrinsic circumstances” in reaching its conclusion. The district court examined the proof-of-loss form and saw Kullot’s signature next to the blank for the adjuster’s signature, but the form did not contain a signature next to the “Claim Approved by” line. The district court did not clearly err in finding that Spring Valley did not accept the offer without this additional signature, and O’Byrne and Stoehr put forth no argument on appeal that Kullot actually had the power to bind Spring Valley. Absent some compelling evidence to the contrary, which O’Byrne and Stoehr failed to provide, 10 we will not disturb the district court’s finding of fact that Spring Valley did not accept the offer to settle because Kullot lacked the authority to authorize the settlement agreement. Second, the district court was permitted to consider extrinsic circumstances to bolster its analysis of the document itself in determining whether the proof-of-loss form was a settlement contract, and O’Byrne and Stoehr do not actually challenge these findings. The district court was not interpreting an unambiguous contract and therefore it was not confined to examining the four corners of the document as O’Byrne and Stoehr suggest. O’Byrne and Stoehr asked the district court to find that this document was a contract. Spring Valley argued it was not. Since the parties disputed whether a contract existed, the question of whether a contract existed between the parties was for the district court sitting as the fact finder to decide. See Morrisette, 486 N.W.2d at 427. Therefore, the district court was permitted to examine the “surrounding facts and circumstances in the context of the entire transaction” to determine whether a contract was formed. Olson & Associates, 756 N.W.2d at 919 (quotation omitted). O’Byrne and Stoehr do not assert that the district court erred in its analysis of the previous proof-of-loss form or the parties’ conduct at trial; they simply asserted that the district court could not rely on these “extrinsic factors.” Since the district court was permitted to rely on these factors, we see no reason to scrutinize the findings that the district court drew from the extrinsic circumstances when O’Byrne and Stoehr do not challenge what the district court found. II. In its related appeal, Spring Valley challenges the district court’s decision to grant Stoehr’s motion for judgment as a matter of law over the jury’s finding that she breached 11 the insurance contract. Spring Valley argues that it presented evidence that could have allowed a jury to find that Stoehr breached the contract. We agree. Appellate courts review a district court’s decision to grant judgment as a matter of law de novo. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). Judgment as a matter of law should be granted “only in those unequivocal cases” when the district court is duty-bound to set aside a verdict because it is “manifestly against the entire evidence” or “contrary to the applicable law of the case.” Moore v. Hoff, 821 N.W.2d 591, 595 (Minn. App. 2012) (quotation omitted). Appellate courts will affirm a jury’s answer on a special verdict form unless the answer “is perverse and palpably contrary to the evidence, or where the evidence is so clear as to leave no room for differences among reasonable persons.” Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 888 (Minn. 2010) (quotation omitted). If multiple answers on a special verdict form “can be reconciled on any theory” consistent with the evidence and fair inferences drawn from that evidence, “the verdict will not be disturbed.” See Dunn v. Nat’l Beverage Corp., 745 N.W.2d 549, 555 (Minn. 2008) (quotation omitted). When considering a motion for judgment as a matter of law, the evidence must be viewed in the light most favorable to the party that prevailed at trial. Pouliot, 582 N.W.2d at 224. At trial, Spring Valley argued that Stoehr and O’Byrne breached the insurance contract by violating the clause in the policy stating that they would not “willfully and with intent to defraud after a loss . . . misrepresent[] . . . a material fact or circumstance that relates to this insurance.” Spring Valley’s theory was that O’Byrne and Stoehr falsely represented that the value of the items that the fire damaged was $30,100, and 12 O’Byrne and Stoehr further falsely represented that they had actual knowledge that the $30,100 figure was accurate and “true.” Spring Valley argued that O’Byrne and Stoehr made these knowing and false misrepresentations with the “intent to defraud” because if Spring Valley relied on O’Byrne and Stoehr’s statements about the value of the property, and their representations that they knew that this value was “true,” Spring Valley would pay out $30,100 in insurance proceeds to which the two were not entitled. The evidence viewed in the light most favorable to the verdict shows that O’Byrne completed the proof-of-loss form indicating that the fire damaged more than 100 items of household property worth $30,100 when the actual damage to the household property was $0, as reflected on the jury’s special verdict form. The evidence demonstrated that Stoehr signed the proof-of-loss form immediately below a line that indicated that all of the statements and figures contained on the form were “true.” The evidence demonstrated that Stoehr did nothing to investigate the accuracy of the figures on the form and that Stoehr knew that she did not know whether the figures were accurate. The district court examined this evidence, but it concluded that this evidence could not have persuaded the jury that Stoehr intended to defraud Spring Valley. The district court determined that this evidence could persuade a jury that Stoehr willfully made a material misrepresentation when she signed her name without knowing whether the value of the $30,100 claimed loss was accurate. But, the district court concluded that the evidence could not persuade a jury that Stoehr intended to defraud Spring Valley because (1) Stoehr’s role “constituted . . . nothing more sinister than her intent to simply comply with her father’s request that she sign the Proof of Loss,” (2) the jury was not permitted 13 to “indulge” an inference of fraudulent intent from Stoehr’s mere misrepresentation, and (3) Stoehr unknowingly misrepresented the value of the items destroyed by the fire because “she did not know” whether the $30,100 figure was “true or false,” and the insurance contract does not define an unknowing misrepresentation as fraud. We reverse for three independently sufficient reasons: (1) the district court erred by applying the wrong standard of review when it failed to consider that the jury’s answers on the special verdict could be reconciled, (2) the district court erred by applying the wrong standard of review when it did not consider all of the fair inferences that the jury may have derived from the evidence, and (3) the district court erred when it overlooked that the jury could have concluded that Stoehr intended to defraud Spring Valley by knowingly misrepresenting that she had actual knowledge when she knew that she did not have this knowledge. First, the jury’s answers on the special verdict form that O’Byrne and Stoehr each breached the contract are not inconsistent. The district court therefore erred in disturbing the jury’s finding that Stoehr breached the contract because the answers can be “reconciled.” See Dunn, 745 N.W.2d at 555 (quotation omitted). The testimony of O’Byrne, Stoehr, and Kullot could have persuaded the jury that O’Byrne intended to defraud Spring Valley because he prepared a document in which he falsely claimed that the fire destroyed $30,100 in household property that did not exist. On appeal, no one disputes that O’Byrne intended to defraud Spring Valley. But Stoehr testified that, even though she was a co-insured and brought this action, and even though the property on 14 which the house was located was titled in her name, she did not actively participate in O’Byrne’s fraudulent scheme. The district court stated that this evidence showed only that Stoehr’s role “constituted . . . nothing more sinister than her intent to simply comply with her father’s request that she sign the Proof of Loss.” This may have been the district court’s view of the evidence, but the jury expressly found that Stoehr breached the contract. Combined with its finding that O’Byrne breached the contract, a finding no one challenges, these answers can be reconciled because the jury simply may not have believed Stoehr and decided instead that she actively participated in O’Byrne’s scheme. Our courts have long held that when a party moves for judgment as a matter of law, the jury has the “exclusive” right to assess the credibility of witnesses, and the district court may not interfere with that right. McKenzie v. Siegel, 261 Minn. 299, 302, 112 N.W.2d 353, 355 (1961). This respect for the fact finder’s determination is so strong that the fact finder does not need to accept even uncontradicted testimony. Costello v. Johnson, 265 Minn. 204, 211, 121 N.W.2d 70, 76 (1963). The jury heard evidence that the property on which the house was located was titled in Stoehr’s name, that she was a co-insured on the property, and that she initiated this lawsuit with O’Byrne. The jury could have used this evidence to infer that Stoehr actively participated in the fraudulent scheme. The district court erred therefore in granting Stoehr judgment as a matter of law when it did not consider that the jury’s answers that each party breached the contract could easily be reconciled. See Dunn, 745 N.W.2d at 555. 15  Second, the district court erred by applying the wrong standard of review because it did not consider the evidence in the light most favorable to the verdict when it expressly denied the jury the right to draw inferences from the evidence it heard at trial. See id. The district court stated that the jury was not permitted to “indulge” the inference that Stoehr intended to defraud Spring Valley based on her admission to making a false misrepresentation on the proof-of-loss form. The district court did not cite any authority for this conclusion and it is erroneous. Fraudulent intent may be inferred from a misrepresentation because it is “difficult, if not impossible, directly to prove the mental state or undisclosed intent of a person. Hence in most cases fraudulent intent and bad faith must be proved by circumstantial evidence––by reasonable inferences drawn from facts and circumstances shown.” Weese v. Weese, 191 Minn. 526, 530, 254 N.W. 816, 818 (1934). Not only was the jury permitted to infer Stoehr’s “intent to defraud” from her misrepresentation, the district court was required to consider this “fair inference[]” that could be drawn from the evidence when it analyzed Stoehr’s motion. See Dunn, 745 N.W.2d at 555 (quotation omitted). Because the district court applied the wrong standard of review when it discounted the possibility that the jury may have inferred a fraudulent motive from Stoehr’s admitted misrepresentation, the district court erred in granting Stoehr judgment as a matter of law. Finally, the district court erred when it stated that because Stoehr did not know whether the $30,100 figure was “true or false,” the jury heard no evidence of Stoehr’s “intent to defraud” because an unknowing misrepresentation does not demonstrate “intent to defraud.” Even if we accept Stoehr’s argument and the district court’s implicit 16 determination that the parties contracted away the common law definition of fraud by using the phrase “intent to defraud,” the district court still erred. The district court overlooked that the evidence could have persuaded the jury that Stoehr intended to defraud Spring Valley apart from her unknowing misrepresentation about the value of the items destroyed; the jury heard evidence that could have persuaded it that Stoehr knowingly misrepresented that she had knowledge which she knew that she did not possess. Stoehr’s theory is that “the only evidence in this case that could possibly come anywhere near ‘intent to defraud’ is that Allison Stoehr signed the proof of loss . . . without conducting an investigation” into the value of the property. Stoehr asserted that she was, at worst, guilty of what some have called “reckless misrepresentation” because she did not know whether the $30,100 figure was true or not. See Florenzano v. Olson, 387 N.W.2d 168, 177 n.1–2 (Minn. 1986) (Simonett, J., concurring specially) (distinguishing “deceit . . . where the representer knows his representation is false” from “reckless misrepresentation . . . when the representer asserts a fact as of his own knowledge without knowing whether it is true or false”). Stoehr argued that while reckless misrepresentation is “fraud” under the common law, reckless misrepresentation cannot support a finding of “intent to defraud” here because the parties contracted away the common law definition. The district court accepted Stoehr’s argument and concluded that the jury heard no evidence of Stoehr’s “intent to defraud” because “at worst, [Stoehr] made the misrepresentations ‘when she did not know if they were true or false.’” 17  The fact that Stoehr testified that she did not know the value of the household property destroyed by the fire certainly supports a finding that she recklessly misrepresented the value of the household items that were damaged by the fire. See Florenzano, 387 N.W.2d at 177 n.2. But the district court and Stoehr overlooked that the jury heard evidence that could have persuaded it that Stoehr made another misrepresentation. Stoehr signed her name immediately below a statement stating that all of the statements and figures on the form were “true.” The jury therefore heard evidence that could have persuaded it that Stoehr knowingly represented that she had actual knowledge that the $30,100 figure was accurate. But, Stoehr testified that not only did she not know whether household items were worth $30,100, she knew that she did not know what the items were worth and “had no way to know the accuracy” of the figures listed on the proof-of-loss form. Yet she still signed the form, and the jury could have concluded that she represented that she knew that the $30,100 figure was “true.” Therefore, the jury could have inferred that Stoehr affirmatively, unequivocally, and falsely represented that she had actual knowledge when she knew that she did not have that knowledge. Therefore, even if we accept Stoehr’s argument that the parties contracted away the common law definition of “intent to defraud” and used the term to refer to a knowing misrepresentation, the jury could have concluded that she intended to defraud Spring Valley under her interpretation when Stoehr falsely represented that she had knowledge that she knew she lacked. This is a subtle distinction, but it is important to remember the context in which Stoehr made the false statement that she knew to be false. When processing insurance 18 claims, Spring Valley must rely on the insureds’ superior knowledge about the value of the items that they claim are destroyed. The proof-of-loss form is the very mechanism by which Spring Valley assesses these values. If Spring Valley had not discovered this knowingly, false misrepresentation, it would have paid Stoehr and O’Byrne $30,100 in insurance proceeds to which Stoehr and O’Byrne were not entitled. Under Stoehr’s interpretation and the district court’s conclusion, an insured would be free to ignorantly sign documents and receive money to which she is not entitled even if she were aware of her ignorance and falsely asserted that she had the knowledge that she knew she lacked. We think that any reasonable interpretation of the contract’s phrase “intent to defraud” prevents insureds from engaging in this kind of behavior while still recovering under the policy. We reverse the district court’s grant of judgment as a matter of law since the verdict was not “manifestly against the entire evidence.” See Moore, 821 N.W.2d at 595 (quotation omitted). Because the district court erred in granting Stoehr’s motion for judgment as a matter of law, we do not consider Stoehr’s appeal of the district court’s determination that she cannot recover her proportionate interest of the proceeds without directly benefiting O’Byrne. Because we reinstate the jury’s verdict that she breached the insurance contract, she cannot receive coverage related to this loss. Affirmed in part and reversed in part. 19 

196 Wis.2d 505 (1995) 538 N.W.2d 627 Delores HOFFMAN, Indiv. and as Special Administrator of the Estate of Richard Hoffman (Deceased), Plaintiff-Respondent,[†] v. MEMORIAL HOSPITAL OF IOWA COUNTY and Wisconsin Patients Compensation Fund, Defendants, Everett R. LINDSEY, M.D. and Timothy A. Correll, M.D., Defendants-Appellants. No. 94-2490. Court of Appeals of Wisconsin. Submitted on briefs June 13, 1995. Decided August 24, 1995. *507 For the defendants-appellants the cause was submitted on the briefs of Steven C. Zach of Boardman, Suhr, Curry & Field of Madison, and Jeanne M. Armstrong of Bell, Metzner, Gierhart & Moore of Madison, *508 and Stephen O. Murray of Otjen, Van Ert, Stangle, Lieb & Weir, S.C. of Madison. For the plaintiff-respondent the cause was submitted on the brief of Sean N. Duffey of Schulz & Duffey, S.C. of Milwaukee and Robert A. Pretto of Madison. Before Eich, C.J., Dykman and Sundby, JJ. DYKMAN, J. We granted Doctors Everett R. Lindsey and Timothy A. Correll's petition for leave to appeal a trial court order denying their motions for a change of venue. Section 808.03(2), STATS. The court concluded that § 655.009(3), STATS.,[1] determines venue in actions against health care providers. It further concluded that § 801.52, STATS.,[2] which provides for a discretionary change of venue, was inapplicable to those actions. Because we conclude that § 801.52 is applicable to actions against health care providers, we reverse and remand with directions that the trial court may exercise its discretion under § 801.52 to determine venue in this case. BACKGROUND Delores Hoffman sued Doctors Lindsey and Correll, Memorial Hospital of Iowa County and Wisconsin *509 Patients Compensation Fund, alleging that their negligent medical care caused the death of her husband, Richard Hoffman. Although her cause of action arose in Iowa County, she commenced her suit in Dane County because she lives there. The doctors moved under § 801.52, STATS., to change venue to Iowa County, alleging that they, the nurses who cared for Richard Hoffman, and other hospital personnel would be inconvenienced by having to travel to Madison for a trial. The trial court denied their motion because it concluded that § 655.009(3), STATS., did not provide for a discretionary venue change and, therefore, § 801.52 was inapplicable to actions against health care providers. VENUE [1] Because this case is decided by our interpretation of statutes, a matter which is a question of law, we review the trial court's decision de novo. State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177, 179 (Ct. App. 1992). Section 801.50, STATS., is the general venue statute used to determine the place of trial. However, § 801.50(2) states, "Except as otherwise provided by statute," indicating that § 801.50 is not the only venue statute. The 1983 Judicial Council Committee's Note to § 801.50 identifies a list of some thirty-four separate venue statutes, including § 655.009, STATS.[3] Hoffman asserts that because § 655.009(3) provides otherwise, and fails to include a discretionary change of venue provision, discretionary changes of venue are not available in actions against *510 health care providers. We view the statutory scheme differently. [2] In most cases, § 801.50, STATS., determines the venue of a lawsuit. But there are many exceptions to § 801.50, and each one serves as a basis for determining venue in a particular case. Ordinarily, that ends the matter. However, when it is necessary "in the interest of justice" or "for the convenience of the parties or witnesses," § 801.52, STATS., permits a trial court in its discretion to change the venue of an action. [3, 4] Hoffman argues that this interpretation is incorrect for several reasons. First, she notes that § 801.01(2), STATS., provides that § 801.52, STATS., and all other provisions of chs. 801 to 847, STATS., govern procedure and practice in trial courts "except where different procedure is prescribed by statute or rule." She concludes that § 655.009(3), STATS., constitutes such an exception, and therefore § 801.52 is inapplicable to actions governed by ch. 655, STATS. But this construction is inconsistent with § 801.50, STATS. In our view, the "different procedure" is not ch. 655's lack of a discretionary change of venue statute but its provisions for venue. In other words, the legislature's failure to insert a discretionary change of venue statute in ch. 655 is not a directive that no discretionary change of venue is available. Indeed, the legislature has considered this situation. Section 779.20(2), STATS., provides in pertinent part: "In actions appealed from municipal court no change of venue shall be allowed except for prejudice of the judge or of the people." Had the legislature intended that no discretionary change of venue was permitted in actions against health care providers, it *511 would have done as it did in § 779.20. There are many venue statutes and it is difficult to imagine that the legislature intended that in all of them, discretionary venue change was unavailable. A more logical interpretation is that the legislature intended that all venue statutes be subject to § 801.52, STATS., except where otherwise provided. Hoffman also contends that case law supports her position. She notes that in Rineck v. Johnson, 155 Wis. 2d 659, 668, 456 N.W.2d 336, 341 (1990), cert. denied, 498 U.S. 1068 (1991), overruled on other grounds by Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549, 566, 514 N.W.2d 399, 405 (1994), the supreme court concluded that the limit on damages for society and companionship found in the wrongful death statute, § 895.04(4), STATS., did not apply to medical malpractice actions. There, the court said, "We do not believe that the legislature would have taken pains to specifically refer to particular statutes such as these if it intended to incorporate without mention other miscellaneous general provisions, such as § 895.04(4)." Id. at 667, 456 N.W.2d at 340. Hoffman's argument was enhanced by Dziadosz v. Zirneski, 177 Wis. 2d 59, 63, 501 N.W.2d 828, 830 (Ct. App. 1993), where we said: "The language of the court's holding in Rineck is clear and concise: Chapter 655 governing medical malpractice actions precludes from application those statutory provisions not expressly referred to in that chapter. See Rineck, 155 Wis. 2d at 666-67, 456 N.W.2d at 340." The supreme court followed Rineck in Jelinek v. St. Paul Fire & Casualty Ins. Co., 182 Wis. 2d 1, 512 N.W.2d 764 (1994). The court quoted Rineck, noting: "Chapter 655 sets tort claims produced by medical malpractice apart from other tort claims, and parties are conclusively presumed to be bound by the provisions of *512 the chapter regardless of injury or death." Id. at 9, 512 N.W.2d at 767 (quoting Rineck, 155 Wis. 2d at 665, 456 N.W.2d at 339). But Rineck, Dziadosz and Jelinek were followed by Estate of Wells v. Mount Sinai Medical Ctr., 183 Wis. 2d 667, 515 N.W.2d 705 (1994), where the supreme court considered whether it should extend recovery rights to the parents of negligently injured adult children, expanding the court's earlier decision to permit parents of negligently injured minor children to recover damages for the loss of their children's society and companionship. Wells was a medical malpractice action. Accordingly, the provisions of ch. 655, STATS., seemed to be applicable. But the court said: Because petitioner alleges that Wells's injuries resulted from medical malpractice, her loss of society and companionship claim is governed by Chapter 655. Unfortunately, Chapter 655 is silent with respect to who can maintain such a claim, and under what conditions. . . . . This lack of statutory guidance does not, however, prevent this court from acting. As we explained in Shockley, the rules against recovery for loss of society and companionship were created by the courts, and it is our responsibility, as much as it is the legislature's, to continue to shape this area of the law. Id. at 674, 515 N.W.2d at 708 (citation and footnote omitted). Had the supreme court interpreted Rineck as it did in Jelinek and as we did in Dziadosz, it would have concluded that the legislature's silence in ch. 655, STATS., on the question of recovery for injury to adult children meant that the legislature intended that the *513 plaintiff could not recover. But the court did not choose that avenue. Instead, it reasoned that the legislature's silence in ch. 655 did not prevent the court from acting. [5] It is not possible to reconcile Dziadosz's view of Rineck with Wells. Wells, Jelinek and Rineck are supreme court cases. When decisions of the supreme court appear to be inconsistent, we follow that court's most recent case. Betthauser v. Medical Protective Co., 164 Wis. 2d 343, 350, 474 N.W.2d 783, 786 (Ct. App. 1991), aff'd, 172 Wis. 2d 141, 493 N.W.2d 40 (1992). That case is Wells. [6] Hoffman attempts to distinguish Wells by noting that it involved a common law claim, which the court, having created, was free to change, while § 655.009(3), STATS., is a legislatively created provision, not susceptible to judicial amendment. But there are two problems with this argument. First, § 751.12, STATS., permits the supreme court to promulgate rules of pleading, practice and procedure in Wisconsin's courts. The issue of venue in Wisconsin courts relates to practice and procedure. Indeed, the supreme court adopted § 261.04, STATS., 1943, pertaining to changes of venue, effective July 1, 1942. See 239 Wis. v, vi (1942). Thus, Hoffman's assertion that the venue provision found in § 655.009(3) is legislative and therefore not subject to judicial revision is not correct. Wells cannot be distinguished on the basis of the legislative history of § 655.009(3). Second, like the rules against recovery for loss of society and companionship at issue in Wells, the doctrine of forum non conveniens is a common law doctrine. The Judicial Council Committee's Note to 1983 Wis. Act 228, § 10 reads: "[Section 801.52, STATS.,] permits the court to apply traditional forum non conveniens *514 principles to requests for discretionary change of venue." Wells cannot be distinguished on a perceived distinction between the origin of rules against recovery for loss of society and companionship of adult children and the origin of § 801.52. If we accept the view that ch. 655, STATS., is selfcontained, subject to no outside rules of practice and procedure, there would be no discovery, summary judgment, or amendment of pleadings in medical malpractice cases because ch. 655 does not mention these procedures. Hoffman argues that these procedures are permitted in medical malpractice actions because they are not inconsistent with ch. 655. But, as we have already explained, § 801.52, STATS., is not inconsistent with § 655.009(3), STATS., either. [7] Hoffman contends that we should disregard the trial court's decision even if we conclude that it is error because the doctors' substantial rights have not been affected. Section 805.18(1), STATS. But this is an interlocutory appeal. We do not know whether the doctors' rights have been substantially affected. Nor will the trial court have to make this determination, because we remand this case to the trial court to determine whether to grant Doctors Lindsey and Correll's motions for a change of venue under § 801.52, STATS. By the Court.—Order reversed and cause remanded with directions. NOTES [†] Petition to review denied. [1] Section 655.009(3), STATS., provides: Venue in a court action under this chapter is in the county where the claimant resides if the claimant is a resident of this state, or in a county specified in s. 801.50(2)(a) or (c) if the claimant is not a resident of this state. [2] Section 801.52, STATS., provides: The court may at any time, upon its own motion, the motion of a party or the stipulation of the parties, change the venue to any county in the interest of justice or for the convenience of the parties or witnesses. [3] The annotation erroneously lists the health care liability and patients compensation venue statute as § 655.19, STATS.

13 B.R. 478 (1981) In re Barry Alan SCHULER and Mary Rita Schuler, Debtors. Bankruptcy No. 480-00520. United States Bankruptcy Court, D. Montana, Great Falls Division. February 26, 1981. Channing J. Hartelius, Great Falls, Mont., for debtors. Arthur G. Matteucci, Trustee, c/o Swanberg, Koby, Swanberg and Matteucci, Great Falls, Mont. ORDER ALLOWING EXEMPTIONS ORVILLE GRAY, Bankruptcy Judge. This case arises from a claim of exemptions by the above named debtors in their petition to the following property: Income tax refunds, to be received for — the years 1976, 1977, 1978 and 1979 — $3500.00; Remainder owing on contract for deed $7500.00. The exemptions were asked in the voluntary joint petition filed November 26, 1980, and Arthur G. Matteucci, was appointed trustee on December 4, 1980. Meeting of creditors pursuant to 11 U.S.C. Sec. 341(a) was held December 16, 1980. Trustee timely filed his objection to the above exemptions on December 19, 1980. Debtors' attorney, Channing J. Hartelius, Esq., filed his response on January 5, 1981, and counsel have been given opportunity to file briefs. The briefs are now filed by both counsel. There is no dispute as to the facts and the decision is entirely a matter of law. Trustee relies for authority on the recent case decided in the Central District of Illinois by the U.S. District Judge upholding the decision of the Bankruptcy Judge. These were the companion cases In re Philip A. Smith, Jr., debtor, and In Re Jeffrey Stephen Pierce and Mary Kathryn Pierce, at 5 B.R. 500, 6 B.C.D. 667 (D.C.Ill.). The Illinois Court in construing 11 U.S.C. § 522(d)(1) and (5) in effect held that the words "in any property" means only any property described in Section 522. The Court held that Congress did not intend to allow a "wild card" or "unfilled bin" theory of exemptions here to be made up of any other kind of property which might exist. Trustee argues that Congress did not intend to place in a catch-all provision, exemptions of any type of property whatsoever, to the tune of the unused Homestead Exemption $7500.00 in subd. (1), plus the $400.00 amount set out in subd. (5). The Illinois District Court disagreed with the text discussion *479 found in the 15th Edition of Colliers, Volume III, Sec. 522.14. The Illinois District Court said that the 15th Edition of Colliers "is simply overbroad on this point, if any meaning is to be given to the scholarly specification of the new exemptions." In short, the language of Colliers which the Court disagreed with is as follows: "The unused portion of the Homestead Exemption plus the $400.00 may be claimed in any property, be it property that is exempt in excess of the value allowed by a particular paragraph of Sec. 522(d), or property that is otherwise nonexempt." If the Smith-Pierce case were the prevailing view in the Bankruptcy Courts, the trustee's petition would be sound. However, this is the only case that I have been unable to find, or that either counsel has cited me, that holds this position. On the other hand, there are numerous cases under the new code within the past year that hold to the contrary. With this one exception, the bankruptcy courts have held that the exemption provision is to be liberally construed, and that the words selected by Congress "any property" means just that. Various terms have been used to describe this largesse allowed by Congress such as "spillover, grubstake, wild card, and unfilled bin". I feel one of the strongest cases which represents the weight of authority, and is cited by counsel for debtors, is In re Nichols, 4 B.R. 711, 6 B.C.D. 597 (Bkrtcy.E.D. Mich.1980). That case was similar to this in that it involved income tax refunds and wage withholdings, and the question of whether they were property of the estate. The court found that they were and the debtor was permitted, if he selected the federal exemption, to take advantage of the spillover provision of Sec. 522(d)(5). The court concluded that income tax refunds, like any other property, could be exempted under 522(d)(5) to an aggregate amount of $7900.00. The opinion of the Michigan Bankruptcy Court continued, as follows: "Under the scheme laid out by the Federal bankruptcy exemptions, it is possible for — the debtor to retain ("exempt") a larger amount of property than was possible under the Bankruptcy Act of 1898. Sec. 522(d). While not attempting to enumerate the various types of property which may be exempted by a debtor—, which types are stated as `any property', it is clear to this court that subject to the stated statutory limits even income tax refunds, wage withholdings and other cash or cash like assets may be exempted. Sec. 522(d)(5)." Another very strongly worded case, decided in 1979, among the early bankruptcy decisions under the new code, was that of In re Upright, 1 B.R. 694, 5 B.C.D. 1124, Bkrtcy.N.D.N.Y. There, the debtor did not own any real property, but rather a flower shop, which he claimed under the combined exemption of $7900.00, Sec. 522(d)(5) and (d)(1). The court went on in its opinion to cite the philosophy of Congress in equating non home owning debtors with the traditional home owner, as follows: "The trustee's position fails to take account of the fact that the Federal exemption scheme reflects a Federal interest in seeing that a debtor who petitions the Bankruptcy Court for relief comes out with adequate possessions to begin a fresh start. The exemptions made available under subsection (d) enunciate a bankruptcy policy favoring this fresh start. Therefore, where the words are clear and unequivocal the courts should not engraft limitations unexpressed by Congress. The alternative to the homestead exemption was a Congressional recognition that many debtors do not acquire homes or have a small equity. Hence, the $400 figure, plus the spillover from the unused amount of the homestead exemption "in any property" is a reflection of a Congressional intention not to discriminate against the nonhomeowner, or the homeowner with little or no equity. See House Report No. 95-595, 95th Cong., 1st Sess. (1977) 361, U.S.Code Cong. & Admin.News 1978, p. 5787. It was intended that the nonhomeowner could use the $7500.00 homestead exemption for any other property. No limitation was expressed with respect to the *480 character of the property eligible for the subsection (d)(5) spillover exemption. On the contrary, the phrase `any property' means just that; the property need not be of the kind otherwise exempt under the various provisions in subsection (d)." Other recent bankruptcy cases under the new code favorable to debtor's petition are as follows: In re Boozer, 4 B.R. 524, 6 B.C.D. 529 (Bkrtcy.N.D.Ga.1980); In re Laird, 6 B.R. 273, 6 B.C.D. 998 (Bkrtcy.E.D. Penn.1980); and two recent cases from the Ninth Circuit In re Collins, 5 B.R. 675, 6 B.C.D. 834 (Bkrtcy.N.D.Cal.1980); and In re Ancira, 5 B.R. 673, 6 B.C.D. 868 (Bkrtcy.N. D.Cal.1980). There Bankruptcy Judge Abrahams rendered the following lucid decision in this regard: "Thus, although the authors of the Senate Report may not have been precisely aware of what the parties here are calling `stacking', they were certainly aware of the possible ramifications of the interplay between Sec. 522(b) and 522(m) — yet nothing was done in the Code, as enacted, to alleviate this concern, aside from reduction of the federal exemption to $7500.00. Apparently the trustee believes that the stacking of the two exemptions is unjust and a windfall to debtors. What is `unjust' or a `windfall' is a value judgment, however. Although to some, certain benefits may be unwarranted largess, to others, the same relief may be an essential element of a `fresh start'. Obviously, Congress intended to grant extensive benefits to debtors through the new Code. In the absence of a clear indication from the Congress as to the limits on these benefits, I do not believe the courts can restrict exemptions, as requested by the trustee, on the basis of their own concepts of fairness and propriety." I, therefore, find that the clear state of the law as it now exists in the Ninth Circuit is set out in the cases cited by debtors' attorney. The sole exception, from a different circuit, is the Illinois case relied on by trustee. Congress allowed the State Legislature to "opt out" of the Federal exemptions. (Sec. 522(b)(1)). While 13 states have done so, Montana as yet has not. Whether the Federal exemptions are too liberal is not for this Court to decide, but is rather the province of Congress, or the State Legislature. I am, therefore, bound by the cases cited and must find for the debtors and overrule trustee's objection. This case involves a total requested exemption amounting to $11,000.00: $3500.00 for income tax and $7500.00 remainder on contract for deed. However, this is a joint petition and each debtor is entitled to the Federal exemption of $7900.00. 11 U.S.C. Sec. 302 allows the filing with the Bankruptcy Court of a single petition by an individual and spouse. There was no explicit provision under the 1898 Act. 11 U.S.C. 522(b) allows an individual debtor to exempt property from the estate either under the Federal exemption or the State Law in his domicile. Each individual spouse has an individual exemption even though it is a joint filing. Thus, Congress has allowed what has been called "stacking" of exemptions, as already referred to in the Ancira case above. I, therefore, find that the two debtor-spouses are entitled to the exemptions asked for the income tax refunds and the balance of contract for deed payments. WHEREFORE, IT IS ORDERED: 1. That the exemptions asked by the joint debtors to the amount of $3500.00 for income taxes and $7500.00 for interest in Contract for Deed set out above be and the same are hereby allowed and that trustee's objection is denied. 2. That copy of this order be mailed forthwith to Arthur G. Matteucci, Esq., trustee and Channing J. Hartelius, Esq., attorney for debtors.

580 F.Supp.2d 154 (2008) Joseph JOHNSON, Jr., Plaintiff, v. U.S. DEPARTMENT OF EDUCATION, et al., Defendants. Civil Action No. 07-2183(JR). United States District Court, District of Columbia. September 30, 2008. *155 Joseph Johnson, Jr., Oxon Hill, MD, pro se. Claire M. Whitaker, Fred Elmore Haynes, United States Attorney's Office, William Warehime Thompson, Jr., Peckar Abramson Bastianelli & Kelley, Washington, DC, for Defendants. MEMORANDUM JAMES ROBERTSON, District Judge. Joseph Johnson Jr. brought this case pro se under the Administrative Procedure Act, 5 U.S.C. § 706, and the Higher Education Act, § 20 U.S.C. § 1087, to compel the Secretary of Education and his loan service providers to discharge certain of his federally guaranteed student loans. The parties have cross-moved for summary judgment. Summary judgment will be granted in favor of defendants. Background Johnson was indicted for larceny and burglary on February 16, 1993 and given a suspended sentence on April 21, 1993. Pl. MSJ, ex. 1. That same year he enrolled at the University of Maryland University College (UMUC). AR at 15. He obtained federally guaranteed loans, including Federal Family Education Loans (FFEL), for the Fall 1993, Spring 1994, Fall 1994, Spring 1995, and Spring 1996 semesters. AR at 19. The loan application form did not ask about Johnson's criminal history, and he did not tell. While enrolled, Johnson took several courses offered by UMUC's paralegal studies program. Pl. MSJ, ex. 13. On April 29, 1996, Johnson withdrew from UMUC because he was incarcerated, this time for forgery. AR at 182. In 2004, after his release from prison, Johnson consolidated his loans under the William D. Ford Federal Direct Loan Program (FFDLP). AR at 19-23. Two years later, Johnson filed the application that gave rise to this case. Pl. MSJ, ex 6. He demanded the discharge of his consolidated loans, asserting that UMUC had falsely certified his application because, as a convicted felon, he was unable to meet the requirements of the occupation for which he was trained.[1] AR at 53. More specifically, Johnson claimed that his criminal record both precluded any possibility of his admission to the bar, and, because he could never be licensed to possess a firearm, his employment in law enforcement. Id. This discharge application was rejected on the ground that Johnson did not inform the school that he was a convicted felon before he enrolled at UMUC. AR at 80.4. *156 Johnson appealed to the Secretary and simultaneously reapplied for discharge, repeating his earlier assertion and further arguing that UMUC never asked about his criminal history before certifying his loans, and that his criminal record also prevented him from meeting a requirement for employment as a paralegal. AR at 125. A month later, Johnson's second discharge application was rejected, this time on the ground that he failed to provide documentation that he had been denied a license because of his criminal record. AR at 166. Johnson appealed this second decision, too. AR at 228. The Secretary rejected both of Johnson's appeals on the ground that: "There are no records that indicate you were enrolled in a training program that specifically and exclusively prepared you for employment in law enforcement or as a paralegal, nor were you enrolled in law school." AR at 351. This decision acknowledged that its "basis for determining that [Johnson] would not be eligible for discharge differ[ed] from that provided by" the FFDLP. AR at 352. Johnson applied for reconsideration, attaching evidence that he claimed proved his enrollment in UMUC's paralegal studies program, which he said "specifically and exclusively prepared [him] for employment in the `legal environment'; more specifically as a paralegal." AR at 353. The Secretary again rejected Johnson's application, this time stating that: "The information you presented was already considered in past determinations of your requests for discharge, including mine. You do not meet the statutory or regulatory requirements for discharge based on False Certification, Disqualifying Status." AR at 356. Johnson's sues under the APA and seeks to compel the Secretary to discharge his loans because UMUC falsely certified that he would meet the requirements of employment as a paralegal. Both parties have moved for summary judgment. Analysis Summary judgment is granted when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). It "is an appropriate mechanism for deciding the legal question of whether [an] agency could reasonably have found the facts as it did." In Occidental Engineering Co. v. INS, 753 F.2d 766, 769-70 (9th Cir.1985). Here, the facts in the record are undisputed, and it is the Secretary's decision that is challenged. The statutory provision in question is 20 U.S.C. § 1087(c)(1): "If a borrower who received, on or after January 1, 1986, a loan made, insured, or guaranteed under this part and ... if such student's eligibility to borrow under this part was falsely certified by the eligible institution ... then the Secretary shall discharge the borrower's liability on the loan (including interest and collection fees)." The regulation that governs the discharge of loans consolidated under the FFDLP is 34 C.F.R. § 685.215(a)(1)(iii): "The Secretary considers a student's eligibility to borrow to have been falsely certified by the school if the school ... [c]ertified the eligibility of a student who, because of a physical or mental condition, age, criminal record, or other reason accepted by the Secretary, would not meet the requirements for employment (in the student's State of residence when the loan was originated) in the occupation for which the training program supported by the loan was intended."[2] *157 The Secretary ultimately rejected Johnson's discharge applications under 34 C.F.R. § 685.215(a)(1)(iii) because there was no evidence that the UMUC program specifically and exclusively prepared him to be a paralegal. AR at 351. My review is restricted to whether this decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ..." 5 U.S.C. § 706(2)(A), and is limited to the administrative record. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Generally, an agency's decision is arbitrary and capricious "if the agency ... entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal citations omitted). Courts will "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, ___ U.S. ___, 127 S.Ct. 2518, 2530, 168 L.Ed.2d 467 (U.S.2007) (internal citations omitted). The Secretary's decision was supported by the record. While enrolled, Johnson took several classes offered by UMUC's "Paralegal Studies" concentration. Pl. MSJ, ex. 13. UMUC's 1998-1999 brochure describes this program as preparing students "for challenging and responsible work in the legal environment... [and] to apply their acquired knowledge and skills in a wide variety of legal settings," including "law firms, government agencies, legal services offices, corporations, professional and trade associations, banks, real estate organizations, publishing companies, and other public and private sector businesses." AR at 305. According to the Department of Labor, among the many "occupations that call for a specialized understanding of law but do not require the extensive training of a lawyer, are law clerks; title examiners, abstractors, and searchers; claims adjusters, appraisers, examiners, and investigators; and occupational health and safety specialists and technicians." Pl. SMFND ¶ 4. Johnson may have intended to pursue a specialization in "Paralegal Studies," but he has not shown that the Secretary's determination that this program did not specifically and exclusively train students to be paralegals was arbitrary and capricious. The Secretary's decision is indeed consistent with the applicable regulation, which contemplates discharge only for "a student who, because of a ... criminal record ... would not meet the requirements for employment ... in the occupation for which the training program supported by the loan was intended." 34 C.F.R. § 685.215(a)(1)(iii) (emphasis added). It is also consistent with an interpretation of that regulation that restricts the availability of loan discharges to students enrolled in programs that provide training for specific occupations with identified requirements.[3] An agency's interpretation *158 of its own regulations is "controlling unless plainly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal citation omitted); Gulf Oil Corp. v. Hickel, 435 F.2d 440 (D.C.Cir. 1970). "The party challenging an agency's action as arbitrary and capricious bears the burden of proof." Lomak Petroleum, Inc. v. FERC, 206 F.3d 1193, 1198 (D.C.Cir.2000). Plaintiff has not sustained his burden. Because the record shows that Johnson was not enrolled in a training program "in which the school proposed to train the student for an occupation with specific requirements for employment," 59 Fed.Reg. 61664, 61682 (December 1, 1994), the Secretary is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). NOTES [1] If this argument sounds like the plea of the boy who murdered his parents and then sought leniency because he was an orphan, consider that, after his conviction for forgery, Johnson filed another application for the discharge of his loans on the ground that his signature was forged. He has not (yet) contested the rejection of that application. [2] Johnson argues that because his loans were FFEL loans before they were consolidated, I should also consider his "ability to benefit" from his education under 34 C.F.R. § 682.402(e)(13)(iii)(A)(B). The "ability to benefit" language, adds nothing material on the facts of this case. [3] See 59 Fed.Reg. 61664, 61682 (December 1, 1994): Comments: One commenter suggested that the language pertaining to the false certification of the eligibility of a student who does not meet the basic requirements for employment is unclear particularly when applied to four year and degree granting institutions. The commenter stated that the school does not have access to the information mentioned in the regulation and cannot be expected to have knowledge of the potential occupations and requirements for employment for students who pursue the academic programs in a university. The commenter argued that this language would encourage students to raise illegitimate claims against schools. Discussion: The regulatory language is limited and designed to address situations in which the school proposed to train the student for an occupation with specific requirements for employment. The Secretary does not anticipate that this regulation will apply to many students pursuing academic programs in a university, (emphasis added).

160 F.3d 573 98 Cal. Daily Op. Serv. 8424, 98 Daily JournalD.A.R. 11,701UNITED STATES of America, Plaintiff-Appellee,v.Filiberto ALVAREZ-TAUTIMEZ, Defendant-Appellant. No. 97-16763. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 14, 1998.Decided Nov. 16, 1998. Heather E. Williams, Assistant Federal Public Defender, Tucson, Arizona, for defendant-appellant. Christina M. Cabanillas, Assistant United States Attorney, Tucson, Arizona, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CV-96-00552-JMR, CR-94-00084-JMR. Before: BRUNETTI, TASHIMA and GRABER, Circuit Judges. TASHIMA, Circuit Judge: 1 Filiberto Alvarez-Tautimez (Alvarez) appeals from the district court's denial of his motion under 28 U.S.C. § 2255 to vacate or set aside his conviction on the ground of ineffective assistance of counsel. The district court concluded that Alvarez's counsel did not provide deficient assistance in failing to file a motion to withdraw Alvarez's guilty plea. We conclude, however, that, because the plea was not accepted by the district court until the day of sentencing and, thus, could have been withdrawn without a showing of a "fair and just reason," counsel's failure to act did constitute ineffective assistance. We therefore reverse.I. Background 2 In January, 1994, United States Border Patrol agents arrested Alvarez and Jesus Carranza-Maldonado (Carranza) after stopping the car in which they were riding and discovering that it contained approximately 252 pounds of marijuana. Alvarez was the driver and Carranza was the passenger. They were indicted for conspiracy and possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. Both defendants pleaded not guilty. Richard B. Bacal was appointed to represent Alvarez and Sean Bruner was appointed to represent Carranza. At that time, Bacal had been a practicing lawyer for 17 months. 3 On March 24, 1994, Alvarez filed several pretrial motions, including a motion to suppress the seized marijuana on the ground that the Border Patrol had stopped the vehicle unlawfully and had conducted an illegal search and seizure. Carranza filed similar motions several days later. 4 On April 22, 1994, pursuant to a plea agreement, Alvarez appeared before a magistrate judge, who conducted a hearing on his proposed plea of guilty to possession with intent to distribute marijuana. After the hearing, the magistrate judge recommended that the district court accept the plea. The district judge did not immediately act on the recommendation. 5 Meanwhile, Carranza's motion to suppress the seized marijuana was granted on May 4, 1994.1 The next day, May 5, Bruner informed Bacal of the successful outcome of Carranza's motion and suggested that Bacal try to withdraw Alvarez's guilty plea and renew his motion to suppress. Bacal indicated, however, that he probably would not attempt to withdraw the plea, because he did not believe there were legal grounds to do so. Bacal discussed the situation with his law associate, who agreed with Bacal's initial thoughts on the matter. When Bacal told Alvarez that his co-defendant's suppression motion had been granted, he also indicated that Alvarez had little chance of successfully withdrawing his guilty plea and reinstating the suppression motion. 6 Bacal did not conduct any research on the feasibility or likely success of a motion to withdraw the plea, but claimed that he was familiar with the state of the applicable law.2 No motion to withdraw the plea was ever filed. 7 The government appealed the order granting Carranza's motion to suppress the marijuana, but voluntarily dismissed its appeal on July 20, 1994. Because there was no longer sufficient evidence to proceed to trial, the indictment against Carranza was dismissed on July 28, 1994. 8 On September 12, 1994, the district court sentenced Alvarez to 30 months' imprisonment and five years of supervised release. The district judge did not accept Alvarez's plea of guilty or the plea agreement until the day of sentencing, September 12. 9 Alvarez was released from custody and was deported on April 8, 1996. He was arrested in the United States on new drug charges less than two months later. Those charges, as well as a petition to revoke his supervised release in this case, are currently pending.3 10 In 1996, after being charged with the new offense, Alvarez filed this § 2255 motion. The district court denied the motion, but issued a certificate of appealability under 28 U.S.C. § 2253(c)(1). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. II. Standard of Review 11 We review de novo a denial of a § 2255 motion. United States v. Span, 75 F.3d 1383, 1386 (9th Cir.1996). The district court's factual findings are reviewed for clear error. Id. We review a claim of ineffective assistance of counsel de novo. Id. at 1387.III. Discussion 12 Alvarez contends that Bacal's assistance was ineffective because Bacal did not file a motion to withdraw Alvarez's guilty plea after Carranza's motion to suppress had been granted.4 "A claim of ineffective assistance may be used to attack the voluntariness and hence the validity of a guilty plea." United States v. Keller, 902 F.2d 1391, 1394 (9th Cir.1990). To establish a claim of ineffective assistance of counsel, the petitioner must show that counsel's advice was both defective and prejudicial. Id. A. Deficient Performance 13 Counsel's performance was deficient if it "fell outside the wide range of professional competence." Crotts v. Smith, 73 F.3d 861, 865 (9th Cir.1996). A court must "indulge a strong presumption" that counsel's conduct falls within the range of competence. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986). 14 At the time Bacal learned that Carranza's motion to suppress had been granted and the indictment against him dismissed, the district court had not yet accepted Alvarez's guilty plea. Rather than moving to withdraw Alvarez's plea and renewing his motion to suppress, however, Bacal advised Alvarez that the chances for withdrawal were slim. He conducted no research and made no attempt to withdraw the plea. 15 Bacal's advice and his failure to act were clearly deficient because Alvarez had the absolute right to withdraw his plea before it was accepted by the district court. 16 We need not decide whether [the defendant] had a "fair and just" reason for withdrawing his plea pursuant to Fed.R.Crim.P. 32(e) because we hold that [the defendant] should have been allowed to withdraw his plea without offering any reason. The reason is that, at the time [the defendant] moved to withdraw from the plea agreement, the district court had not yet accepted the plea. Under our precedent [the defendant] and the Government were not bound by the plea agreement until it was accepted by the court. 17 United States v. Washman, 66 F.3d 210, 212 (9th Cir.1995) (footnote and citation omitted). Washman describes precisely the posture of Alvarez's case--neither the plea nor the plea agreement was accepted by the district court until the date of sentencing. Thus, Alvarez was free to withdraw his plea offer made before the magistrate judge at any time before sentencing.5 18 The government argues, however, that Washman was not decided until one year after Bacal faced the decision whether to file a motion to withdraw Alvarez's guilty plea. We recognize that the reasonableness of counsel's performance must be evaluated "as of the time of counsel's conduct." Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir.1994) (quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Washman, however, was not new law. We arrived at our decision in that case through the straightforward application of precedent. See Washman, 66 F.3d at 212 (citing United States v. Savage, 978 F.2d 1136 (9th Cir.1992)). We had noted earlier in Savage that "a court cannot force a defendant to plead guilty because of a promise in a plea agreement. See Fed.R.Crim.P. 11(c)(3). 'Unless and until a court accepts a guilty plea, a defendant is free to renege on a promise to so plead.' " Savage, 978 F.2d at 1137 (quoting United States v. Papaleo, 853 F.2d 16, 19 (1st Cir.1988) (emphasis added)). Thus, rudimentary research would have revealed our acknowledgment in Savage that Rule 11 itself makes it clear that the court's acceptance of the plea is a necessary prerequisite to its enforcement. In Savage, we took it as a given that a defendant is not bound by a guilty plea until it is accepted by the court. 19 In sum, in mid-1994, at the time of Bacal's decision not to file a motion to withdraw Alvarez's plea, there was clear precedent that a plea could be freely withdrawn at any time before it was accepted by the district court.6 Thus, the district court erred in concluding that Rule 32's "fair and just reason" standard would have applied to Alvarez's motion to withdraw his plea and, in turn, concluding that "there would not have been a legal basis ... to grant a motion to withdraw from the plea agreement as the law existed at that time." 20 Finally, Bacal's failure to file a motion to withdraw Alvarez's guilty plea cannot be justified as a reasonable tactical or strategic decision. There simply is no rational basis on which to predicate such a conclusion in the circumstances of this case. See Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994) ("[W]e have found counsel to be ineffective where he neither conducted a reasonable investigation nor made a showing of strategic reasons for failing to do so."). We thus conclude that Bacal's failure to move to withdraw Alvarez's guilty plea constituted ineffective assistance. B. Prejudice 21 In addition to showing deficient performance, a defendant also must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See Crotts, 73 F.3d at 865 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Specifically, in a case charging deficient advice culminating in a guilty plea, the defendant must show that the defective performance "affected the outcome of the plea process ... [such] that absent the erroneous advice, he would have insisted on going to trial." United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1282, 137 L.Ed.2d 357 (1997) (citation omitted). 22 Here, Alvarez was prejudiced by the denial of an opportunity to file a motion to withdraw a plea which, as shown above, would have been reasonably likely to succeed. See Holtan v. Parratt, 683 F.2d 1163, 1170 (8th Cir.1982) ("[W]here, as a result of ineffective assistance of counsel, a petitioner has been denied the opportunity to request withdrawal of his plea of guilty ... and where he has shown that there is a substantial probability that he would have succeeded in such a request, then an adequate showing of prejudice has been made."). 23 Once Alvarez's not guilty plea had been reinstated, he then could have renewed his motion to suppress the marijuana. As stated above, co-defendant Carranza's motion to suppress the seized marijuana had been granted, and the government had dismissed its appeal from that order. Without the marijuana, there was insufficient evidence to sustain a conviction. Nothing in the record suggests that the outcome of Alvarez's motion to suppress, to be determined by the same judge, on the same set of facts, would not have been identical to Carranza's motion. It is, thus, reasonably probable that the district court would have granted Alvarez's motion to suppress. Dismissal of the indictment would have followed. Manifestly, Alvarez was prejudiced by his counsel's deficient performance. IV. CONCLUSION 24 Alvarez's counsel rendered ineffective assistance to his client following the granting of co-defendant Carranza's motion to suppress and the dismissal of the indictment against him. This ineffective assistance was manifestly prejudicial to Alvarez. Consequently, we reverse the denial of Alvarez's § 2255 motion with directions that judgment be entered granting the motion. 25 REVERSED with directions. 1 Because of the plea agreement, Alvarez's motion to suppress never was adjudicated 2 Bacal claimed that within the last several years, he had done some general research on withdrawing from plea agreements, in connection with a research and writing class that he was teaching at a local college 3 If convicted on the new offense, Alvarez will face enhanced penalties as a result of his 1994 conviction 4 Alvarez also claims ineffective assistance because Bacal had a conflict of interest, being more concerned with pleasing the prosecutor than representing Alvarez. Because of our disposition of the ineffective assistance claim based on Bacal's failure to move to withdraw Alvarez's guilty plea, we do not reach this issue 5 Our holding in Washman has not been undercut by United States v. Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997). In Hyde, unlike in Washman, the guilty plea--but not the plea agreement--had been accepted by the trial court. See id. at 1632. Hyde does confirm that the requirement in Fed.R.Crim.P. 32(e), that a "fair and just reason" must be shown in order to withdraw a guilty plea, does not apply until after the plea has been accepted by the court. See id. at 1634 6 Our pre-1994 cases also clearly stated that a plea agreement must have been "accepted" by the district court in order to be enforceable. See United States v. Floyd, 1 F.3d 867, 870 (9th Cir.1993) (finding that under Rule 11, "[a] plea agreement ... must be accepted by the court before it is binding"); United States v. Fagan, 996 F.2d 1009, 1013 (9th Cir.1993) ("A plea agreement that has not been entered and accepted by the trial court does not bind the parties.")

42 B.R. 145 (1984) In re VICTORY CONSTRUCTION COMPANY, INC., Debtor and Debtor-In Possession. Bankruptcy No. LA 80-07936-JA. United States Bankruptcy Court, C.D. California. August 2, 1984. *146 Joseph A. Eisenberg and Joel B. Weinberg, of Levene & Eisenberg, a Professional Corporation, Brown & Brown, Los Angeles, Cal., for debtor. John A. Graham, Beverly Hills, Cal., David J. McCarty, Shappard, Mullin, Richter & Hampton, Los Angeles, Cal., for Cal. Fed. S. & L. Assoc. Curtis B. Danning, Danning, Gill, Gould, Joseph & Diamond, Los Angeles, Cal., for Stad Trust and Ashkenazy Corp. James E. Eichstaedt, U.S. Trustee, Los Angeles, Cal. CONSOLIDATED MEMORANDUM OF DECISION REGARDING DEBTOR'S MOTION FOR CONFIRMATION OF PLAN, CREDITOR'S MOTION FOR CONFIRMATION OF AN ALTERNATE PLAN, AND CREDITOR'S MOTION TO DISMISS OR CONVERT CASE. JOHN D. AYER, Bankruptcy Judge. INTRODUCTION This is another chapter in a narrative that bids fair to become a bankruptcy epic. Four years ago, Victory Construction Co. filed a petition for relief under Chapter 11. The debtor's only asset was a single parcel of real property. Just nine days after filing, four secured creditors, intending to realize on their liens, filed a complaint seeking relief from the automatic stay. Five months later, the court granted relief. The court issued an opinion that has entered the folklore on the doctrine of "good faith" in bankruptcy law. See In re Victory Construction Co., Inc. 9 B.R. 549 (Bankr.C.D.Calif.1981) ("Victory I").[1] Ironically, four years after filing and three and a half years after the order for relief, the debtor remains in possession of the property, major creditors remain stayed from foreclosure and the case remains pending before me. Currently on the table are three applications: (1) a motion by the debtor seeking confirmation of its second amended plan of reorganization; (2) a motion by the largest creditor seeking confirmation of its competing plan of reorganization; (3) an alternative motion by the same creditor (who was one of the "winners" three and a half years ago) to dismiss the case or convert it to a case under Chapter 7. Mindful that my decision is almost certainly not the last in the matter, and hopeful that the whole case is sui generis, I find that the debtor's plan meets the requirements of confirmation, and that the creditor's plan does not meet the standards of confirmation. THE FACTS The early history of Victory is well known to bankruptcy specialists. There is a building at 8511 Beverly Place in Los Angeles. It was once owned by an entity known as the Cave Club, Inc. A majority stockholder in the Cave Club was John Hadley ("Hadley"). California Federal Savings and Loan ("Cal Fed") held a security interest in the real estate. The Cave Club sold the real estate to Leslie Linder's London Club ("the London Club"). Hadley, as trustee for the Cave Club shareholders, took back a security interest, junior to Cal Fed's. When the London Club failed to make payments, Cal Fed, relying on a due-on-sale clause in its trust deed, recorded a notice of default and intention to sell. Before Cal Fed could sell, the London Club filed a petition in bankruptcy. The bankruptcy trustee, unable to service the debt, determined to sell the real estate. He first put it up for option, where he got a bid of $1.85 million, which he rejected as too low. Thereupon the trustee set out to find another and better sale. Fred Roven ("Roven") is experienced as a real estate developer and trader. He has operated through a number of entities. One was a firm called Devonshire Corporation ("Devonshire"). Another is Victory Construction Company ("Victory"). From 1976 to 1979, Victory was dormant and Roven was operating through Devonshire. In 1979 Devonshire filed a bankruptcy petition under old Chapter XI. Later the same year, Roven began to dicker with the trustees *147 of the London Club for the purchase of the London Club real estate. The property was subject to a number of liens, including those of Cal Fed and Hadley, Victory I, 9 B.R. 549, 550. Roven saw it as a speculative opportunity—at one point he called it a "crap shoot." In any event, on December 3, 1979, he paid $5,000 to purchase an option on the property. He signed an option agreement saying that "buyer wishes to purchase the real property by assuming [existing] liens but needs time in which to negotiate with holders of the liens on the real property terms for the assumption of the liens." The option agreement identified the prospective buyer as Victory. Roven needed help to put the deal together. He negotiated an informal partnership with Severyn Ashkenazy ("Ashkenazy"), also an experienced entrepreneur. They made an oral agreement to share the costs and profits of the project (Ashkenazy operating through something known as "the Stad Trust"). They made some preliminary forays at development, hoping to replace the existing building with a hotel. Roven negotiated with lenders. They were unable to get agreements restructuring the debt. Nonetheless on March 24, 1980, Victory exercised the option. Victory paid $107,500 to exercise the option (in addition to the $5,000 "crap shoot") and assumed debts of about $2.9 million, but with the hope of scaling them down. Hadley promptly recorded a notice of default under his trust deed. Victory sued in state court to enjoin the prospective foreclosure. The state court refused the injunction. Hadley set his sale for August 12, 1980. On August 11, Victory filed this petition. Four creditors (including Hadley but not including Cal Fed) brought their action from relief from the stay and on January 26, 1981, Judge Ordin filed his opinion granting relief from the stay. Victory I, 9 B.R. 549. Most of this is familiar to those who have read Victory I. (For a more detailed statement of facts, see Victory I at 560-63). The rest of the story is less well known, although the next chapter begins with the next case in the reports—Hadley v. Victory Construction Co., Inc, 9 B.R. 570 (C.D. Calif.1981) ("Victory II"), filed just a month later on February 23, 1981. What happened was this. Victory owed Hadley some $1.35 million. Victory appealed Victory I, and sought a stay pending appeal. Victory offered to pay, as a condition of the stay, interest at the contract rate— eight percent per annum. The court granted Victory its stay, but only on condition that it pay at the market rate—which the court, in February, 1981, found to be 18 percent. Victory acquiesced, undertook to pay the 18 percent, and took its appeal. One might have thought that the focus would have shifted to the appellate panel at this point, but it was not to be so. Instead on May 19, 1981, Victory, enjoying the protection of its appeal stay, made the logical next move of a Chapter 11 debtor—it proposed a plan. The plan undertook, among other things, to reinstate Hadley at his original contract rate. The debtor later abandoned that first plan, evidently anticipating that Judge Ordin would deny confirmation.[2] Instead, the debtor on December 10, 1981 offered an amended plan. The most noteworthy distinctions of the amended plan were, first, a 50 percent increase in the interest rate proposed for Hadley (from eight to 12 percent), and, second, the inclusion of a personal guarantee from Severyn Ashkenazy and his brother, Arnold Ashkenazy ("the Ashkenazy brothers"). Over the next year and a half, that amended plan subsided into a farrago of conflict where it very nearly disappeared. There were a succession of objections, hearings on objections, findings, objections *148 to findings and the like, all of which seemed to accomplish little on either side, except to generate attorneys' fees. Hadley was the principal opponent but along about the end of 1982 he picked up an ally—Cal Fed, previously quiescent but henceforth energetically active in opposition. That was the situation when Judge Ordin left the bench and I succeeded to his docket in the summer of 1983. Several hearings ensued at which counsel and I tried—without much success—to disentangle the issues and the record. Thereafter on December 15, 1983, the debtor withdrew the controverted first amended plan and filed the debtor's second amended plan of reorganization, which is the debtor's plan pending now. The plan marks a retreat from the first plan in that it falls back on the old market rate of interest. However, it adds personal guarantees from the Ashkenazy brothers, Roven, and the Stad Trust. Thereafter on February 15, 1984, the Bankruptcy Appellate panel filed its opinion reversing Victory I. In re Victory Construction Co., Inc, 37 B.R. 222 (B.A.P. 9th Cir.1984) ("Victory III"). The appellate panel, reviewing events that occurred after the appeal, held that Judge Ordin had, in effect, reversed his own prior order. The panel said that the case had become "tantamount to one providing adequate protection." The panel continued: As a result of the trial court's de facto reversal of its own order, substantial payments have been made by the debtor, the purpose and application of which remain undefined but require consideration in the light of the changed relationship which now obtains between appellees and the debtor. There is little question but that events subsequent to appeal have outrun the original issues, thereby rendering them moot. Victory III, 37 B.R. at 228. Hadley has appealed the appellate panel decision to the Ninth Circuit. Meanwhile Victory remains, as it was four years ago, a shell for holding the real estate. Roven indicated that he has abandoned plans to replace it with a hotel, but he did have plans drawn up to remodel the building. The property has been used for daily rentals from time to time, yielding a few thousand dollars in income. But throughout the period, Victory, according to Roven, "has dealt with many lawyers mainly." Several claims against the debtor have been paid off or compromised (which accounts for the changing cast of characters in the case). It appears that Ashkenazy and Roven must have paid out a considerable sum to keep the project intact—including in excess of $800,000 to Hadley—but there is nothing like a detailed record on the point. After the appellate decision, Hadley filed its own plan, in competition with the debtor's second amended plan, already pending. This creditors' plan provided that the debtor pay interest on its obligation to Cal Fed at 13 percent (instead of the contracted 8.25) and to Hadley at 15 percent (instead of the contract eight—and instead of the 18 percent required in the appellate stay). Hadley also, as an alternative, filed a motion to convert or dismiss the case. Hadley, of course, objected to the debtor's plan, as did Cal Fed. The debtor objected to Hadley's plan—as did Cal Fed. Cal Fed also objected to conversion, although it did not object to dismissal. These are the matters pending before me. But before proceeding to the specific applications, I think it may be desirable to risk a few further thoughts on the general topic of good faith. GOOD FAITH Judge Ordin made this case famous with his opinion in Victory I. He expanded his views at exhaustive length in an article, see Ordin, The Good Faith Principle in the Bankruptcy Code: A Case Study, 38 The Bus.Law. 1795 (Aug.1983). His paper is certain to stand for some time as the seminal work on good faith as a legal category in bankruptcy. But a legal category of this sort is not a thing in itself. It has meaning only if it has some expository convenience —if it can help counsel and litigants to understand just what they should and *149 should not do in any given case. We are indebted to Judge Ordin's scholarship for the following inescapable conclusion: "good faith" is utterly unable to do this sort of job. As Judge Ordin has shown, the term covers too many different kinds of conduct, in too many different situations. Indeed one is tempted to say that it is not a category at all, but merely a perjorative phrase, functioning at such a high level of abstraction that one can scarcely discern what might be underneath it. With all the cases before us, we can see that there is no principle uniting them. There is no showing that the same sorts of facts are not dealt with elsewhere in the law, perhaps in a more coherent fashion. In a search for a principle, one might as well take all cases in which the plaintiff is named "Smith," or which were filed on a Tuesday. The consequences of this sort of uncertainty are evident from the record we have in this case: after four years, neither the courts nor counsel seem to be able to reach any reliable agreement on just what the issues are. I am of course not free to excise the concept of good faith from the law of bankruptcy, even if I chose. See e.g., 11 U.S.C. 1129(a)(3) (1982) ("good faith" as a statutory confirmation standard); In re Thirtieth Place, Inc., 30 B.R. 503 (B.A.P. 9th Cir. 1983); In re Del Rio Development, Inc., 35 B.R. 127 (B.A.P. 9th Cir.1983); In re Mallas Enterprises, 37 B.R. 964 (B.A.P. 9th Cir.1984). Cf. In re Nite Lite Inns, 17 B.R. 367 (Bankr.S.D.Cal.1982). But the cases make it clear that this provision is to be read restrictively. It is on this basis that I review the issue of good faith one more time. Victory is a one-asset, secured-credit real estate case, after the manner of an old Chapter XII. Whatever may have been the rule four years ago, it now seems clear that a one-asset, secured-credit real estate case is properly within the jurisdiction of the bankruptcy court. Indeed, cases of this sort account for perhaps as much as half of our Chapter 11 docket. Victory was a moribund corporation, revivified to take title to the asset in question, just shortly before filing. In Thirtieth Place, supra, the appellate panel ordered relief on facts that bear a superficial similarity to these—a shell corporation, created to take title to the subject property. But the differences seem to me to be crucial. First, it appears that the corporation in Thirtieth Place, took title solely for the purpose of filling the proceeding. The record here supports a different inference. It seems almost certain that Roven considered bankruptcy as a possibility before taking title in Victory. But it seems equally likely that he also wanted to continue negotiating with his creditors, and he wanted to avoid bankruptcy if possible. Second, Thirtieth Place is a case of pure self-dealing. The transferor and transferee were in essence the same enterprise. The transaction was a peel-off, presumably to protect the transferor's balance sheet. Here, the transferor was a third party—the trustee of the London Club. He could have refused to sell to Victory if he wished. He could have insisted on a guarantee from Roven. And Roven could have walked away. Evidently the trustee, in a position to appraise the risks, throught this was the best deal he could get. On its face then, Thirtieth Place seems to me to make a much stronger case for relief from the stay than Victory. Yet the appellate panel decision was only 2-1. Judge George, dissenting, would have found even this case a permissible filing. Aside from Thirtieth Place, the most extensive appellate panel discussion on point is Victory III. This opinion presents some problems in interpretation.[3] But one *150 thing is inescapable: the appellate panel had the opportunity to affirm Judge Ordin, and to grant relief from the stay on the theory that the case was not properly before the bankruptcy court. And this is precisely what the panel refused to do. See also In re Del Rio Development, Inc., 35 B.R. 127 (B.A.P. 9th Cir.1983); In re Mallas Enterprises, 37 B.R. 964 (B.A.P. 9th Cir.1984). What seems to bother Hadley and Cal Fed most in this case is that Roven appears to be a man unterrified by the idea of bankruptcy. He creates corporations to insulate his personal assets. If their future is promising, he sees to it that they get money—very carefully, like water in a drip irrigation system. If not, he seeks the protection of the court. He clearly takes the possibility of bankruptcy into account. Indeed, perhaps the most remarkable thing about this record is that the man who as trustee sold the London Club to Victory is the same man who as attorney represented Devonshire in its Chapter XI case (he also now represents Ashkenazy in this case). There has never been any secret of this, and so far as I can tell, none of the creditors asserts that there is any specific impropriety here. But it does suggest a certain inbred, neurasthenic quality that is bound to aggravate the frustration of anyone who thinks a debtor ought to pay his bills. All of this might suggest "bad faith" to the person on the street. But ironically, as I tried to suggest above, a too free use of the concept in the bankruptcy court may increase, rather than reduce, the confusion in a case like this, and correspondingly increase the capacity of debtors to keep creditors at bay. I do not think that Congress, glossed by the appellate panel, intended me to use the concept in that way. For these reasons, I think the general issue of "good faith" must be resolved in favor of the debtor, and I so hold. I do not for a moment suggest that a case should proceed as this one has proceeded, of which more later. For the moment, let me turn to the debtor's plan. THE DEBTOR'S PLAN As I indicated above, the most noteworthy features of the debtor's plan is that the debtor seeks to reinstate Hadley and Cal Fed at their old interest rates, together with personal guarantees of Roven, the Ashkenazy brothers, and the Stad Trust. Obviously it contains a number of other provisions. I hold that the standards of confirmation have been met. See 11 U.S.C. § 1129 (1982), Bankr.R. 3020, Official Form No. 31. To limit the length of this opinion, I will limit my discussion to issues that invite detailed examination. Res judicata: Hadley[4] asserts that this plan is essentially the same as the plan that Judge Ordin refused to confirm in 1981. Assuming that confirmation was in fact denied (see footnote 2, supra.), the objection is not compelling. Hadley concedes that the new plan includes a guarantee from the Ashkenazy brothers (it also includes guarantees from Roven and the Stad Trust). Hadley complains that the guarantee is not meaningful because it "can only be enforced through protracted litigation . . ." The record does not support this assertion. The debtor and its backers evidently do not pay money cheerfully. And they may well have profited from the entanglements of this litigation. On the other hand, the record shows that they have dealt with—paid off or compromised—several *151 large claims against the debtor in the course of this case. And there seems to be no dispute that they have been making the appeal stay payments to Hadley. I find that confirmation is not barred by the principle of res judicata. Good Faith: I have dealt with good faith generally in the previous section. With reference to the specific standard of good faith as a requirement for confirmation under Sec. 1129(a)(3), it may be useful to quote from Judge Katz's gloss on the phrase in Nite Lite Inns: Essentially, a reorganization plan is proposed in `good faith' when there is a reasonable likelihood that the plan will achieve a result consistent with the objectives and purposes of the Bankruptcy Code. . . . The primary purpose of the reorganization chapters of both the Act and the Code has been to promote restructuring of debt and the preservation of economic units rather than a dismantling of the estate. In re Nite Lite Inns, 17 B.R. 367, 370. I accept this analysis as a gloss on Sec. 1129(a)(3), and I find that the debtor meets the standard of good faith under this definition. Best Interests: 11 U.S.C. § 1129(a)(7) (1982) provides that I must find that the plan is in the "best interest" of creditors. See House Report No. 595, 95th Cong., 1st Sess. 412 (1977). Specifically, I must find that each creditor will receive or retain value that is not less than the amount he would receive if the debtor were liquidated. The debtor proposes to reinstate Hadley's loan. Hadley's loan bears an obligation to pay interest at eight percent per annum (Cal Fed's is at 8.25). Hadley argues that the current market rate of interest is much higher. He introduced a declaration from a consulting economist asserting that the current market rate on the Hadley obligation is 15 percent and the Cal Fed obligation, 13 percent (in fact, these are the rates used in the Hadley plan). The economist declares that the market rate on the Hadley obligation had averaged 18.12 in the period from 1981 to the present. Hadley thus argues that on liquidation, he would be free to reinvest the money in a "comparable" transaction at the higher current rate. He contends that forcing him to accept reinstatement thus gives him less than he would receive if the debtor were liquidated. This is an elegant argument and it seems consistent with the language of the statute. It has the support of the unpublished decision of Judge Abrahams in In re Los Altos Hotel Associates, Bankr. No. X-XX-XXXXX (Filed Dec. 29, 1981, N.D.Calif.). The difficulty is that the argument proves too much. It means that the debtor could never use Sec. 1129(a)(7) in a case where the current market rate was higher than the contract rate. If the market rate is lower than the contract rate, then the debtor will not use Sec. 1129(a)(7) anyway; he will refinance in the current, lower market. If the market rate is identical to the contract rate, then presumably the rational creditor will permit reinstatement voluntarily and Sec. 1129(a)(7) will have no relevance. This analysis robs Sec. 1129(a)(7) of all content. This cannot have been the intent of Congress. On this analysis, I find the debtor has met the "best interest" standard. To the same effect, see generally In re Forest Hills Associates, 40 B.R. 410, 11 B.C.D. 1145 (Bankr.S.D.N.Y.1984); In re Rainbow Forest Apartments, 33 B.R. 576 (Bankr.N. D.Ga.1983); Masnorth Corp., 28 B.R. 892 (Bankr.N.D.Ga.1983); In re Rolling Green Country Club, 26 B.R. 729 (Bankr.D.Minn. 1982).[5] *152 This is enough to settle the issue as a matter of law other things being equal. Hadley has no standing to complain if it made a bad bargain. Nonetheless, it may be helpful to point out that the 8 percent contract rate in this case is probably somewhat artificial. I have had occasion to observe, from the bench, a good many transactions of this sort, and I think I can take judicial notice of the fact that the principal obligation in a transaction like this normally impounds an implicit interest factor. In this case, Ashkenazy took the stand and testified to that effect. He put the implicit interest factor for this sort of transaction at 4 to 6 percent. If his analysis fits this particular transaction, then Hadley's actual rate may be closer to 14 percent. Lack of an accepting class: Sec. 1129(a)(10) provides that at least one class of claims (other than insiders) must have accepted the plan. Hadley asserts that there is no such acceptance. The debtor argues, first, that he has established the relevant acceptance as a matter of law because all relevant classes are unimpaired, and an unimpaired class is "deemed to have accepted." See 11 U.S.C. § 1126(f) (1982). Second, he argues that he has an actual acceptance from a voting class. I hold that a relevant class is "deemed to have accepted" under Sec. 1126(f) and thus I rule for the debtor on his first argument. I suspect that the debtor might not be able to show that he has an actual accepting class, but since the point is not necessary for my decision, I do not make a specific finding on the point. I deal with each of these issues in turn. Considering first the problem of "deemed acceptance"—this language has given rise to a great deal of confusion because the statute is simply not tightly enough mortised to hold a single undiluted analysis. See generally Fogel, Confirmation and the Unimpaired Class of Creditors; Is a `Deemed Acceptance' Deemed An Acceptance? 58 Am.Bankr.L.J. 151 (1984). The debtor's argument (to repeat) is that a class that is "deemed to have accepted" under Sec. 1126(f) may supply the relevant "acceptance" under Sec. 1129(a)(10). But this analysis seems to contradict yet another section of the code, namely Section 1129(a)(8), 11 U.S.C. § 1129(a)(8) (1982). That latter section provides that a plan may be confirmed if "with respect to each class—(A) such class has accepted the plan or (B) such class is not impaired under the plan." This seems to suggest that there is a difference between "acceptance" (as in Sec. 1129(a)(8)) and "deemed to have accepted" (as in Sec. 1126(f)). If we take this distinction seriously, then a class that is "deemed to have accepted" under 1126(f) cannot supply the relevant "acceptance" for Sec. 1129(a)(10). But this can lead to absurdities. An unimpaired class never formally "accepts" the plan; because it is unimpaired, it is not given the opportunity to vote and it is simply "deemed to accept". If the unimpaired class can never supply the relevant acceptance for Sec. 1129(a)(10), then the court could not confirm a plan leaving all classes unimpaired even if no class objected, because it would be impossible to find an "actual" accepting class. This cannot possibly have been the drafters' intent. Cf. In re Union County Wholesale Tobacco & Candy Co., Inc., 8 B.R. 442 (Bankr.D. N.J.1981). Surveying the case law, I think I can see a path out of this jungle. The path lies in the distinction between classes that are un impaired and those that are impaired. Section 1124 draws a distinction between unimpaired and impaired classes. Section 1126(f) provides that an unimpaired class is deemed to have accepted the plan. Section 1129(a) provides that a class may be bound, even though it is impaired, if it accepts the plan. And finally, section 1129(b) provides that a class may be bound even though it is impaired and even though it does not accept if the standards of that section are met. This is the so-called "cram-down" section; see generally Klee, All you Ever Wanted to Know About Cram Down Under the New Bankruptcy Code, 53 Am. Bankr.L.J. 133 (1979). Section 1126(f) provides that an unimpaired class may be *153 "deemed to accept." Nothing in the Code provides for "deemed acceptance" on the part of an impaired class. I think that the Code is saying (though in somewhat Delphic tones) that I should recognize objections from impaired classes, though not from unimpaired classes. Most of the cases analyzing Section 1126 seem to take this approach in fact, although they do not spell it out that way. Specifically: most of the cases refusing to "deem" acceptance involve objection by an impaired class. These cases seem to say that the court will require an actual acceptance if some impaired class objects. See, e.g., In re Polytherm Inc., 33 B.R. 823 (W.D.Wisc.1983); In re Lloyd, 31 B.R. 283 (Bankr.W.D.Ky.1983); In re Dreske, 25 B.R. 268 (Bankr.E.D.Wisc.1982); In re Spirited, Inc., 23 B.R. 1004 (Bankr.E.D.Pa. 1982); In re Pine Lake Village Apt. Co., 21 B.R. 478 (Bankr.S.D.N.Y.1982); In re Barrington Oaks General Partnership, 15 B.R. 952 (Bankr.D.Utah 1981); In re Marston Enterprises, Inc., 13 B.R. 514 (Bankr.E.D.N.Y.1981). In the same vein, a number of cases have agreed to "deem" acceptance from an unimpaired class where there was no objecting impaired class. See, e.g. In re Rainbow Forest Apartments, 33 B.R. 576 (Bankr.N.D.Ga.1983); In re Rolling Green Country Club, 26 B.R. 729 (Bankr.D.Minn. 1982); In re Masnorth Corp., 28 B.R. 892 (Bankr.N.D.Ga.1983); In re Bel Air Assocs., Ltd., 4 B.R. 168 (Bankr.W.D.Okla. 1980) (objecting interest, not a claim). Judge Mabey, deciding In re Barrington Oaks General Partnership, 15 B.R. 952 (Bankr.D.Utah 1981), asserted that this approach is consistent with the legislative history. He says: Section 1129(a)(10) was interposed so that confirmation would be disallowed `in situations where no class of affected [i.e., impaired] creditors has voted for the plan.' At that time the bills did not contain a deemed acceptance provision for unimpaired classes. Thus, Section 1129(a)(10) accomplished its objective as drafted. The subsequent addition of Section 1126(f) rendered unclear the language of Section 1129(a)(10) but did not obscure its intent as articulated in the legislative record. Id. at 970. This result is supported by language in Sec. 512 of the Bankruptcy Amendments and Federal Judgeships Act of 1984. It amends Sec. 1129(a)(10) to provide that "if a class of claims is impaired under the plan, at least one class of claims that is impaired under the plan [must accept] the plan, determined without including any acceptance of the plan by any insider." See Sen. Rep.N. 305, 96th Cong. 1st Sess. 15 (1979). The question then arises whether Hadley is an impaired class. Section 1124 is dispositive. It provides that a class is not impaired if the plan cures any defaults and reinstates the maturity of the claim as it existed before default. See 11 U.S.C. § 1124(2) (1982). This is precisely what the debtor proposes to do in his plan. Such reinstatement leaves the creditor unimpaired as a matter of law even if the current market rate of its interest is higher than the contract rate. See generally In re Forest Hills Associates, 40 B.R. 410, 11 B.C.D. 1145 (Bankr.S.C.N.Y.1984), In re Rainbow Forest Apartments, 33 B.R. 576 (Bankr.N.D.Ga.1983), Masnorth Corp., 28 B.R. 892 (Bankr.N.D.Ga.1983), In re Rolling Green Country Club, 26 B.R. 729 (Bankr.D.Minn.1982).[6] Hadley also argues that he is impaired because of the debtor's bad faith. Since I have found that the debtor's plan was not proposed in bad faith, the question becomes moot. On this analysis, Hadley is not impaired.[7] Since there is thus no objecting impaired class, I find that I may "deem" acceptance sufficient for Sec. 1129(a)(10). *154 Aside from the "deemed acceptance," the debtor asserts that he has a real acceptance. The acceptance was presented by Fred B. Green, a contractor who once did some work on the property and litigated his lien claim against the debtor early in the Chapter 7 case. Hadley asserts that the "acceptance" is invalid because it was late; because it was presented without an adequate disclosure statement; and because the claim in fact belongs to the Stad Trust, which Hadley asserts is an insider. I am not impressed with the first two objections, but the third is more serious. I think there was ample disclosure in this case, as I explain in detail below. I agree that the acceptance was received after the formal bar date, but I think it would be an abuse of discretion to insist on the deadline if there were otherwise no prejudice to the estate. The status of the ownership of the claim is somewhat more problematic. Evidently the Stad Trust either will succeed, or has succeeded, to Green's interest, as part of the settlement of the earlier litigation. The Stad Trust is clearly an insider pursuant to 11 U.S.C. § 101(25)(B)(v) (1982), whose vote could not be counted pursuant to 11 U.S.C. § 1129(a)(10) (1982). One possibility is that the Stad Trust and Green have an arrangement that makes it possible for the claim to belong to either as convenient at a particular moment. On the basis of the record before me, I could not find the Green acceptance sufficient. Fortunately for the debtor, I do not need to, because I find that no such acceptance was necessary. Feasibility: Sec. 1129(a)(11) provides that I must find the plan to be feasible. See House Report No. 595, 95th Cong., 1st Sess. 413 (1977); Senate Report 989, 95th Cong. 2d Sess. 128 (1978), U.S.Code Cong. & Admin.News 1978, 5787. Specifically I must find that confirmation is not likely to be followed by liquidation, or the need for further financial reorganization. Hadley says the debtor's plan does not meet this standard "in view of the uncertainty as to the reliability of Victory's source of payment." This overlooks the fact of the guarantees, and the fact that no one has seriously disputed the solvency of the guarantors. I find that the debtor has met this standard of feasibility. Disclosure: Hadley argues that Victory's disclosure of the relevant facts and circumstances has been inadequate for the court to make an informed decision regarding the merits of the plan. See generally 11 U.S.C. § 1125 (1982). Given the context of the case, this objection is very nearly frivolous. In the first place, since no class was impaired, no disclosure statement is required. See, In re Union County Wholesale Tobacco & Candy Co., Inc., 8 B.R. 442 (Bankr.D.N.J.1981). But whether required or not, a disclosure statement was filed in connection with the debtor's original plan, and won approval from the court on or about October 7, 1981. Over the course of the case, Roven has been deposed at least three times; Ashkenazy at least once. There were four days of trial at the beginning of the case, and there have been innumerable hearings. At a hearing on November 29, 1983, I suggested that requiring a new disclosure statement would serve no purpose other than to create further delay. Counsel for Hadley and Cal Fed each concurred. Counsel for Cal Fed said: "I think everyone knows as much as they need to know about this case." Counsel for Hadley said: "I think I know the facts of this case probably more than I ever wanted to know in my whole life." Constitutional objections: Hadley also argues that reinstatement under Sec. 1124 "would infringe upon Hadley's due process rights, especially in view of its retroactive application to the Hadley notes which predate the enactment of the Bankruptcy Code. There is language to support this proposition in United States v. Security Industrial Bank, 459 U.S. 70, 103 S.Ct. 407, 74 L.Ed.2d 235 (1982), where the Supreme Court indicated (in dicta) that the Bankruptcy Code cannot be applied retroactively to destroy due process rights. But the Court could not have intended that this language be read broadly. It is arguable *155 that virtually every provision of the Bankruptcy Code trenches on a "right" of somebody's. If the Bankruptcy Code does not apply to pre-enactment transactions, then there is no applicable bankruptcy law at all. This cannot have been what the Court had in mind. Fortunately, Security Industrial Bank does not require so grotesque a reading. Justice Rehnquist himself acknowledged that the bankruptcy power "has been regularly construed to authorize the retrospective impairment of contractual obligations." See 103 S.Ct. at 410. See also Hanover National Bank v. Moyses, 186 U.S. 181, 22 S.Ct. 857, 46 L.Ed. 1113 (1902). Hadley is going to get the value of its collateral. All Hadley has at stake on this issue is its right to accelerate, which even under the broadest interpretation can be no more than a contract right. See generally Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Cf. In re Rainbow Forest Apartments, 33 B.R. 576 (Bankr.N. D.Ga.1983). I therefore hold that the debtor's plan meets the relevant requirements of confirmation as set forth in Sec. 1129. HADLEY'S PLAN There remains the question of the competing Hadley plan. I find that Hadley's plan fails to meet the requirements for confirmation. I find a number of defects in the plan, but the chief of these is the fact that it includes interest rates for Hadley and Cal Fed at the purported current market, rather than the contract rate. The case in favor of this market rate is the mirror image of Hadley's case against the contract rate in the debtor's plan. But as I have tried to show above, Hadley cannot sustain his case against the contract rate. His case in favor of the market rate fails accordingly. The consequence of such a payment, without explicit authorization in the Code, would be to allow the secured creditors to take more than 100 percent of their claims. It is clear that the drafters intended the court to deny confirmation where the plan proposes to pay more than 100 percent to a senior class without the consent of a junior. See generally Senate Report No. 989, 95th Cong., 2d Sess. 127-128 (1978).[8] Anticipating my concerns, Hadley filed a "Modification" which in effect invited me to scale down the interest rate to a rate that I felt desirable or acceptable. But this misses the point. So long as the debtor has a statutory right to reinstate (as I believe he has), then any rate above that has the effect of giving the creditor more than his claim. In any event such a procedure would put me in the position of fashioning a plan for the parties. Nothing in the Code suggests that Congress intended me to undertake that role, and I decline to do so. MOTION TO DISMISS OR CONVERT By finding that the debtor's plan is confirmable, I have rendered moot the question of whether the case should be dismissed or converted. THE STAY OF APPEAL Only one issue remains. That is the question of the allocation of the 18 percent adequate protection payments. The appellate panel recognized that the issue remains open pending confirmation. One's first thought might be that if the debtor is permitted to reinstate, then he must have the benefit of any excess over the contract rate. The debtor may find support for this approach from the Ninth Circuit in Crocker National v. American Mariner Industries, Inc. (In re American Mariner Industries, Inc.), 734 F.2d 426 (9th Cir.1984), footnote 12. But cf. In re Monroe Park, 17 B.R. 934 (D.Del.1982); In re Virginia Foundry Co., 9 B.R. 493 (W.D.Va.1981). But I do not think that any principle compels this result. From the start, the *156 payment was something other than compensation under the contract. Judge Ordin in Victory II expressly recognized that he was ordering a (supposed) market, rather than the contract, rate. The debtor paid has paid it on that basis—and with the recognition that he might never recover any of it at all. As I indicated above, I believe Chapter 11 clearly gives the debtor the right to reinstate his contract. The lost opportunity to reinvest the money is a cost that the creditor, by statute, must bear. But that is not the only cost in the matter. Hadley has been embroiled for four years with a Chapter 11 estate. He has borne legal expenses which he can almost certainly not recover, together with uncertainties that are part and parcel of any litigation. Indeed, insofar as the law remains unsettled and this decision remains amenable to appeal, the issue remains uncertain today. Under the circumstances, with respect to the interim payments, I think it is proper to leave the parties where I find them. I hold that the debtor may have credit against his adequate protection payments for interest at the contract rate on his ongoing contract obligation, but that the creditor may retain the balance. CONCLUSION This opinion constitutes findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052. The debtor is directed to submit orders accordingly. NOTES [1] For obvious reasons, I forbear to call it the "Famous Victory." [2] In fact it appears that no order denying confirmation was ever docketed. Hadley has furnished me, however, with a document entitled "Findings of Fact and Conclusions of Law in re: Denial of Confirmation of Debtor's Plan of Reorganization," bearing what appears to be Judge Ordin's signature and attached to a certificate of service signed by a deputy clerk. The debtor has not disputed that there is such an order, and in any event, my decision would render the point moot. [3] Most important, Judge Volinn seems to have misunderstood a piece of the record (hardly surprising, under the circumstances). In Victory III at pages 227-8, he quotes a colloquy concerning the interest rate in the debtor's first amended plan, since withdrawn. If he based his decision on the interest rate in that first amended plan, then the logic of the entire opinion collapses, because that first amended plan was later withdrawn. But it appears from the whole opinion (including the passage quoted above) that he was actually thinking about the interim interest on appeal. See also Victory III1 at 227-8. As is evident from the passage quote above, he specifically recognized the fact that the interest payment was provisional, and that there had been no decision on allocation of payments. On this assumption, his opinion continues to carry force. [4] Cal Fed echoes many of Hadley's objections, and much of the ensuing discussion applied to Cal Fed as well. Cal Fed also insists that it has the right to exercise the due-on-sale clause, consistent with the holding of the U.S. Supreme Court in Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1983). Counsel for the debtor specifically conceded on the record that Cal Fed's rights under de la Cuesta are unaffected by this plan. [5] Hadley's counsel in final argument also raised the proposition that Sec. 1129(a)(7)(A) does not apply to a creditor who has made an election under Sec. 1111(b). He thereupon for the first time presented a document purporting to be an Sec. 1111(b) election. But the whole point of Sec. 1111(b) is to give protection to an allegedly undersecured creditor; as Collier says, it "merely converts an unsecured deficiency claim into a claim secured by the electing creditor's collateral." 5 COLLIER ON BANKRUPTCY 1111.02[4] (15th ed. 1983). By any measure, Hadley is an oversecured creditor. The election can therefore have no effect. [6] Cases like In re Monroe Park, 17 B.R. 934 (D.Del.1982) and In re Virginia Foundry Co., 9 B.R. 493 (W.D.Va.1981) involve adequate protection payments in the pendency of a case prior to confirmation and thus have no direct bearing on requirements under Sec. 1129. [7] Nor, on the same analysis, is Cal Fed. [8] The debtor raises an additional argument that the higher rates would be a violation of the California usury laws, but I decline to pass on the point.

505 F.2d 105 Brenda K. MONROE et al., Plaintiff-Appellant,v.BOARD OF COMMISSIONERS OF the CITY OF JACKSON, TENNESSEE,and the Jackson Housing Authority, et al.,Defendants-Appellees.Brenda K. MONROE et al., Plaintiff-Cross-Appellees,v.BOARD OF COMMISSIONERS OF the CITY OF JACKSON, TENNESSEE, etal., Defendants-Cross-Appellants.Brenda K. MONROE et al., Plaintiffs-Cross-Appellees,v.JACKSON HOUSING AUTHORITY, Defendant-Cross-Appellant. Nos. 73-2249 to 73-2251. United States Court of Appeals, Sixth Circuit. Oct. 22, 1974. Avon N. Williams, Jr., Nashville, Tenn., J. Emmett Ballard, Jackson, Tenn., Norman J. Chachkin, Jack Greenberg, James M. Nabrit, III, R. Sylvia Drew, Kenneth J. Dious, New York City, for Brenda K. Monroe, and others. Robert J. Holt, Jr., Franklin Murchison, Jackson, Tenn., for Board of Commissioners of City of Jackson, Jackson Housing Authority, and others. Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges. JOHN W. PECK, Circuit Judge. 1 This desegregation suit,1 orginally commenced in 1963, appears before this court for the fourth time. A detailed history of prior proceedings is set out in our latest decision, Monroe v. Board of Commissioners of the City of Jackson, Tennessee, 453 F.2d 259 (6th Cir. 1972), wherein we remanded the cause to the district court for reconsideration of the elementary school assignment plan in light of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 695 (1971); Davis v. Board of School Commissioners, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); and Robinson v. Shelby County Board of Education, 442 F.2d 255 (6th Cir. 1971). 2 On remand, the district court held evidentiary hearings in which plaintiffs, the defendant Board of Commissioners (hereinafter 'the Board'), and the United States, as amicus curiae, participated. Throughout the hearings the Board took the position that it was operating the school system in conformity with constitutional requirements. Following the hearings, the district court permitted the parties and the amicus curiae to submit proposed findings of fact and conclusions of law. The United States filed a memorandum recommending, interalia, that the district court require further desegregation of the elementary schools. In response thereto, the Board presented a plan for further desegregation of the elementary schools, and in addition proposed the closing of the formerly all-black South Jackson Elementary School for the following school year with reassignment of its remaining students in a manner which would further desegregation.2 Plaintiffs objected to the Board's plan as insufficient and to the proposal to close the South Jackson facility, and submitted an alternative desegregation plan developed by their expert witness, Dr. Michael Stolee. 3 In a memorandum opinion issued July 17, 1973, and an implementing order entered nunc pro tunc on August 28, 1973, the district court allowed the South Jackson closing, rejected the submissions of both the Board and the plaintiffs, and directed certain modifications of the Board's plan for the 1973-1974 school year. The court also awarded plaintiffs an attorney's fee of $1,500, but made the award without holding a hearing or otherwise affording plaintiffs an opportunity to tender evidence. This appeal by plaintiffs (No. 73-2249) and crossappeals by the Board (No. 73-2250) and the Jackson Housing Authority3 (No. 73-2251) followed. 4 The jackson system's student population is approximately 50% Black. The actual attendance figures for the 1973-1974 school year showed that one of the eight elementary units was 98% Black and that two were less than 30% Black.4 This plan required the busing of some 200 students from the former South Jackson facility to the Andrew Jackson and Highland Park Schools, a distance of up to 5.9 miles. 5 Plaintiffs complain that the Board failed to carry its burden of showing that the decision to close South Jackson Elementary School was based upon objective, non-racial factors, and that the district court erred in approving the closing. The record does not support this contention. 6 Based upon adequate evidence before it, the district court found as follows: 7 'South Jackson is old, costly to maintain, and the continuing urban renewal work indicates fewer and fewer students within a 'neighborhood' proximity to the school. To maintain a minimal necessary staff, cafeteria, and other facilities for as few as 200 to 225 students5 in the Jackson system is administratively unsound and not feasible. The closing is part of a long range plan to eliminate this oldest operating school which is not directly related to racial motivation but rather the intent, largely unfulfilled, to upgrade slum housing occupied for the most part by blacks. It is not desirable from an educational viewpoint, nor from any other demonstrated to the Court, to assign large numbers of black or white students from newer and better physical structures to this school. The school is geographically located so as to make it not feasible to move other students into this nearby 40 year old facility by any changing of attendance boundary lines; this could only be accomplished by the expensive process of bussing or transporting white students from considerable distances into environment largely devoid of homes or residences-- an area in transition into commercial type development.'The district court listed what it considered the four pivotal factors in its decision to allow the closing as follows: 8 '(1) It is a comparatively inferior facility due to its age and state of repair, (2) it is located in the midst of a designated and rapidly changing urban renewal commercial area with little nearby present residential potential, (3) the steady decline in attendance of elementary school children there makes it impractical and unduly burdensome for its continued operation, and (4) there is no prospect of racial mixture in the school through changes in neighborhood residential patterns . . ..' 9 On the basis of the foregoing factors, the court specifically found 'the closing not to be associated with unconstitutional racial overtones.' 10 As the district court noted, proposals to close black schools which coincide with implementation of constitutionally required desegregation place the burden on school authorities to demonstrate that racial considerations did not result in the decision to cease operation of these facilities. Robinson v. Shelby County Board of Education, 467 F.2d 1187, 1200 (6th Cir. 1972) (McCree, J., concurring in part and dissenting in part); Haney v. Sevier County Board of Education, 429 F.2d 364 (8th Cir. 1970). We are satisfied that that burden has been met in this case and that the district court properly so ruled. 11 Plaintiffs urge that the closing of South Jackson will visit a disproportionate share of the inconveniences of desegregation on black students.6 Responsive to this legitimate concern, we direct that the district court take such steps as may be necessary to ensure that the transition is made with minimal inconvenience to South Jackson's former students. In this connection, we stress that the transportation provided the children formerly attending South Jackson must be equal to the transportation provided other students transported within this school system. 12 Plaintiffs assert that even if the South Jackson closing is approved, the case must be returned to the district court to complete the process of desegregating the elementary schools. We agree. It is remarkable that the best efforts of the parties have not been sufficient to eliminate all-black schools from this small district. The plan approved by the district court leaves the Lincoln Elementary School 98% Black, and clearly this plan does not 'achieve the greatest possible degree of actual desegregation . . .' mandated by the Supreme Court. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281 (1971). As the Swann Court stated, 'No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation (such as in the instant case) the need for remedial criteria of sufficient specificity to assure a school authority's compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition.' Id. We are confident that the district court, with the aid of the parties, can eliminate this final aspect of segregation from the Jackson schools. 13 Lastly, plaintiffs complain that the $1,500 attorney's fee awarded them bears no relation either to the time and effort of counsel or to any other relevant considerations which ought to govern a district court's exercise of discretion in setting the amount of the award. Plaintiffs also point out that the district court failed to articulate the basis for its award or to permit the parties to introduce evidence on this matter. The letter fact makes it impossible for this court to determine the propriety of the award as such. 14 There is a strong policy in favor of awards of attorneys' fees in school desegregation cases, and plaintiffs "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Northcross v. Memphis Board of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1972), quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). Although it is within the district court's discretion to determine whether or not to award attorneys' fees, this court may review the reasonableness of any award made. Johnson v. Georgia Highway Express, Inc.,488 F.2d 714 (5th Cir. 1974). Because our review is dependent upon some sort of record of the basis for the decision below, we vacate the judgment insofar as it relates to the attorney's fee and remand the cause to the district court for findings of fact and conclusions of law as to the amount of any attorney's fee awarded under the standards of Bradley v. School Board of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476(1974). 15 The judgment of the district court is affirmed in part and reversed in part and the cause is remanded for further proceedings consistent with this opinion. 1 This case, consisting of three separately numbered appeals, was heard with Monroe v. County Board of Education of Madison County, 505 F.2d 109, 6 Cir., filed of even date herewith, but both cases were separately briefed 2 The Jackson Housing Authority was made a defendant below following its acquisition of the South Jackson Elementary School property from the City of Jackson on March 30, 1973. The contract of sale contained provisions that the defendant school authorities would have the right to retain possession and use the property until the district court acted upon the application to close the school and for reconveyance to the City should the court refuse the application 3 Supra, note 2 4 The following chart contains relevant statistical data concerning the eight elementary schools % Black, % Black, School Actual Actual ------ 1972-73 1973-74 -------- -------- Alexander 36% 45% Andrew Jackson 5% 28% Highland Park 3% 24% Lincoln 99% 98% Parkview 46% 60% South Johnson 98% --- Washington-Douglas 98% 75% West Jackson 42% 43% Whitehall 58% 56% 5 Enrollment at South Jackson declined from 508 in 1967-68 to 243 during the third month of the 1972-73 school year, and projected attendance for 1973-74 was less still 6 Kelley v. Metropolitan County Board of Education of Nashville, Tennessee, 463 P.2d 732 (6th Cir. 1972)

270 F.Supp. 650 (1967) ROAD REVIEW LEAGUE, TOWN OF BEDFORD et al., Plaintiffs, v. Alan S. BOYD, individually and as Secretary of Transportation of the United States and Alexander D. Trowbridge, individually and as Acting Secretary of Commerce of the United States, Defendants. No. 67 Civ. 481. United States District Court S. D. New York. April 28, 1967. *651 Kaye, Scholer, Fierman, Hays & Handler, New York City, for plaintiffs, Milton R. Wessel, R. Bradlee Boal, New York City, of counsel. Robert M. Morgenthau, U. S. Atty., New York City, Southern District of New York, for defendants, Arthur S. Olick, Michael D. Hess, New York City, of counsel. The Atlantic Chapter of the Sierra Club, amicus curiae, by Alfred S. Forsyth, New York City. OPINION McLEAN, District Judge. This is an action to review and set aside a determination of the Federal Highway Administrator, approved by the Secretary of Commerce, made under the Federal Highways Act (23 U.S.C. § 101 et seq.). The complaint seeks a declaratory judgment determining that "the selection and approval by defendants of the Chestnut Ridge alignment for Interstate Route 87 is arbitrary, capricious and otherwise not in accordance with law." It also asks for a permanent injunction requiring defendants to withdraw any approval heretofore given with respect to the Chestnut Ridge alignment, requiring them to advise the State of New York that such approval has been withdrawn, and restraining defendants from "interfering in any manner which is arbitrary, capricious or not in accordance with law with the selection by appropriate action of the State of New York in accordance with the provisions of Title 23 of the United States Code of *652 an alignment for that portion of Interstate Highway 87 which will connect Armonk and Katonah." The plaintiffs are the Town of Bedford, a civic association of Bedford residents, two wild life sanctuaries whose property will be adversely affected by the proposed road, certain individuals whose property will be taken for the road, and the Road Review League, a non-profit association which concerns itself with community problems, primarily those involving the location of highways. The defendants are the Secretary of Transportation and the Acting Secretary of Commerce.[1] Although the complaint mentions 28 U.S.C. §§ 2201 and 2202 (the declaratory judgment sections), 28 U.S.C. § 1361 (the mandamus section), and 28 U.S.C. § 1331 (the federal question section), it is fair to say that jurisdiction is grounded primarily upon Section 10 of the Administrative Procedure Act (5 U.S.C. § 706). Plaintiffs moved for a preliminary injunction. The motion came on before me on March 3, 1967. Upon the argument defendants orally moved to dismiss the action on the grounds that (1) defendants have an absolute discretion which is not reviewable by this court; (2) in any case these plaintiffs have no standing to ask this court to review it; (3) the State of New York is an indispensable party and this court cannot proceed in its absence. After consideration, I denied defendants' motion as far as the first two grounds were concerned, for reasons which will be mentioned hereinafter. As to the third ground, I held that the State of New York was at least a proper party and directed that it be brought in. Upon the return of an order to show cause for that purpose on March 27, 1967, the State appeared and pleaded sovereign immunity. I sustained that plea and denied the motion to bring the State in as a party by order dated March 31, 1967. In view of the importance of the question presented by this action, and because of the urgency created by the fact that construction of the road along the route complained of was already in progress, I directed, pursuant to Rule 65(a) (2), that the trial of the action on the merits be advanced and consolidated with the hearing on the motion for a preliminary injunction. I reserved decision until the completion of the trial on the question of whether the State is an indispensable party. Defendants filed an answer which, in addition to denials, alleged six affirmative defenses, i. e., (1) the complaint fails to state a claim for relief; (2) the State of New York is an indispensable party; (3) plaintiffs do not have standing to sue; (4) this court lacks jurisdiction of the subject matter; (5) plaintiffs are guilty of laches; (6) plaintiffs are guilty of "unclean hands." After formal pre-trial proceedings and the entry of a pre-trial order, the consolidated trial and hearing began on April 5, 1967 and continued until its conclusion on April 11, 1967. Upon the basis of the evidence adduced at the trial, I find the essential facts to be as follows. The Federal Highways Act provides for a program of federal grant-in-aid to the states to facilitate "the prompt and early completion of the National System of Interstate and Defense Highways" (23 U.S.C. § 101(b)). The routes of the *653 system "to the greatest extent possible, shall be selected by joint action of the State highway departments of each State and the adjoining States, subject to the approval of the Secretary * * *." (§ 103(d)). The statute contemplates that the roads shall be planned, constructed and owned by the State. Approval of the federal authorities is necessary, however, in order to obtain grants of federal funds to finance the projects. These grants are 90 per cent of the cost (§ 120(c)). Interstate Route 87 is a part of this system. The number 87 is now given to the existing New York Thruway from Newburgh north to Albany, and to the Northway from Albany north to the Canadian line. The existing New York Thruway from Elmsford south to New York City is also part of Route 87. Between Elmsford on the south and Newburgh on the north, however, the proposed Route 87 does not follow the existing New York Thruway, nor does it go directly north in a straight line along the east bank of the Hudson from Elmsford to a point opposite Newburgh. Instead, the proposed Route 87 turns east from Elmsford, runs along the existing Cross Westchester Expressway (Route 287) to a point east of White Plains, thence north to Brewster, where it connects with Interstate Route 84. It then runs west along with Route 84 to Newburgh. Thus, in essence, the route traverses three sides of a square to get from Elmsford to Newburgh. This indirect route was conceived by the Department of Public Works of the State of New York and was embodied in a New York statute (Highway Law, McKinney's Consol. Laws, c. 25, § 340-a) which prescribes the "corridor" that the route is to follow. This corridor necessarily takes the road through Bedford. On December 22, 1960 the Federal Bureau of Public Roads approved this corridor at the request of the New York authorities. The New York statute did not specify the precise route or "alignment" which the road was to take. That was determined by administrative action, as will be recounted hereinafter. The alignment through Bedford which has been decided upon and of which plaintiffs complain, is called the Chestnut Ridge alignment. The alternative alignment or route which was also considered by state and federal officials is called the westerly route. It lies to the west of Chestnut Ridge, nearer the village of Mt. Kisco. The two proposed routes diverge at a point near Armonk on the south and come together again at a point near Harris Road in the Town of Bedford on the north. The distance between these two points on the Chestnut Ridge route is 8.8 miles. On the westerly route it is .7 of a mile longer, i. e., 9.5 miles. Roughly halfway between Armonk and Harris Road, the Chestnut Ridge route crosses existing state Route 172 which runs generally east and west. The choice of a route between these two alternatives has given rise to a controversy which has gone on since early 1961. The principal events in that controversy may be briefly summarized as follows. On February 1, 1961, the New York Superintendent of Public Works, McMorran, requested approval of the Bureau of Public Roads for presentation at a public hearing to be held in the Town of Bedford, as required by statute (23 U.S. C. § 128) of the proposed Chestnut Ridge route. On February 2, 1961, the Division Engineer of the Bureau, Koch, advised McMorran that the proposed route was "satisfactory for presentation at the public hearing." The hearing was held on February 9, 1961. It was very well attended. Opposition to the Chestnut Ridge route was expressed by many, but there were others who favored it. A stenographic transcript of the hearing, and copies of various memoranda submitted by interested parties, were sent to the Bureau. Bureau engineers examined this material and summarized its contents in memoranda. Bureau engineers also made a physical inspection of the area. *654 McMorran decided to consider the matter further and to make additional studies. In August he sent to the Bureau detailed studies of the two alternate routes. Koch examined these studies and reported on them to the Bureau's Regional Engineer, Swanson, who in turn transmitted them to the headquarters of the Bureau in Washington. On December 28, 1961, the State Superintendent requested the Bureau's approval for presentation at a second public hearing of the westerly route. The Bureau approved this request. Eventually, McMorran decided to present both routes at the public hearing. The second hearing was held on February 27, 1962. It was spectacular. Over 1,000 persons attended. There were demonstrations, placards and even balloons. Oratory was well nigh interminable. The meeting began at 1:30 P.M. on February 27 and lasted until 5:00 A.M. the following morning. Some speakers favored Chestnut Ridge; others opposed it. A stenographic transcript of this hearing and accompanying memoranda were sent to the Bureau and were examined by its engineers. McMorran was persuaded that his original choice of the Chestnut Ridge route was wrong and that the westerly route was preferable from the point of view of "the social, cultural and economic requirements of Westchester County, and the needs of the Interstate System generally." On May 1, 1962, he wrote to Koch, the Bureau's Division Engineer, expressing that opinion and formally requesting approval of the westerly route. Koch disagreed with this recommendation. On June 8, 1962, he wrote a memorandum to Swanson in which he stated that: "* * * the `Chestnut Ridge' location is superior from a purely engineering standpoint. It is the more direct and is estimated to be some $4 million cheaper than the `westerly' location." On the other hand, he stated that: "The `westerly' location will more closely conform to the established land use pattern of the area. * * * From a purely planning standpoint, there is no question that the `westerly' route would be adopted." He expressed the view that the possible adverse effects of the Chestnut Ridge location on the character of the area traversed had been exaggerated. In July 1962, a group of Bedford citizens opposed to the Chestnut Ridge Route, including some of the present plaintiffs, met with Regional Engineer Swanson and explained their position. This was the first of a long series of meetings between various members of this group and federal highway officials. On August 8, 1962, Swanson forwarded Koch's June 8 memorandum to the Director of Engineering of the Bureau in Washington with a covering letter in which he stated that he concurred in Koch's recommendation that the Chestnut Ridge location be adopted despite the State of New York's request for the westerly route. He expressed the opinion that the information developed at the public hearing and set forth in numerous presentations by various interested parties did not contain "sufficient justification * * * to warrant the expenditure of an additional approximately $4.3 million to construct the `westerly' route rather than the `Chestnut Ridge' route." He also concurred with Koch that "the possible adverse effects of the Chestnut Ridge location appear to have been exaggerated." Two days later on August 10, without, as far as appears, having received any instructions from Washington in the meantime, Swanson wrote to McMorran declining to approve the State's recommended location. Without mentioning Chestnut Ridge by name, he stated: "There are alternate locations through this traffic corridor which provide essentially the same traffic service, which are estimated to cost as much as 4.3 million dollars less to construct and are 0.7 of a mile shorter than your recommended location." *655 This was the Bureau's initial decision, to which it has adhered through the ensuing four and one-half years, although on several occasions it has reconsidered it at the request of those who disagreed with it. This initial decision, as has been pointed out, was made by the Regional Engineer of the Bureau, not by the Federal Highway Administrator. There is apparently nothing unusual in this. Comparatively few choices of route locations provoke enough dissension to require determination by the Administrator himself. In this case the furor was violent enough, not only to require the personal attention of the Administrator, but also that of two successive Secretaries of Commerce. Shortly after Swanson's decision of August 10, 1962, a group of aggrieved Bedford residents, including some of these plaintiffs, met with the Federal Highway Administrator, Whitton, and presented their arguments to him. At about this time also, various important public officials, including senators and congressmen, began to send communications opposing the Chestnut Ridge location to the Secretary of Commerce and to the Highway Administrator. There were many of these over the years. On November 28, 1962, McMorran "appealed" Swanson's decision to the Highway Administrator. The appeal took the form of a letter to Whitton in which McMorran stated that he considered the Bureau's decision to be "narrow, arbitrary and grossly unwarranted," and that it "coldly sacrifices the countless intrinsic values of existing and potential conservation areas which will be traversed if the easterly alignment is adopted." Apropos of this appeal, McMorran testified at the trial that he was "stunned" by Swanson's decision. On December 20, 1962, Whitton wrote McMorran stating that he had reconsidered the State's request and after a thorough review of the material, remained of the same opinion that approval of the westerly location should not be granted. On January 9, 1963, McMorran, although reiterating his contrary opinion, capitulated and requested approval of the Chestnut Ridge alignment. This request was promptly granted by the Bureau of Public Roads on January 15, 1963. Thereafter various interested citizens, including one of the present plaintiffs, began a proceeding in the New York courts under Article 78 of the Civil Practice Act against the New York Superintendent to review the determination which he had made to seek federal approval of the Chestnut Ridge Route. After dismissing the first complaint as insufficient in law (Brown v. McMorran, 39 Misc.2d 716, 241 N.Y.S.2d 483 (West. Co.1963)), the Special Term sustained the amended complaint as an action for a declaratory judgment and injunctive relief (Brown v. McMorran, 42 Misc.2d 211, 247 N.Y.S.2d 737 (West.Co.1963)). The Appellate Division, however, reversed, and granted summary judgment dismissing the complaint on the ground that the Superintendent had had no alternative, under state law, but to take whatever action might be necessary to secure federal approval and federal funds for the road. Brown v. McMorran, 23 A.D.2d 661, 257 N.Y.S.2d 74 (2d Dept.1965) While the litigation in the state courts was pending, some of the plaintiffs, as well as various public officials, continued to write to the Secretary of Commerce and to the Highway Administrator urging a change in the decision. Finally, on November 7, 1963, Secretary of the Interior Udall appealed to the Secretary of Commerce to endeavor to find an alternative solution. He offered the services of the Bureau of Outdoor Recreation of the Department of the Interior to assist in a restudy of the alternates. This offer was accepted and, at the direction of the Highway Administrator, further engineering work on the road was held in abeyance pending the completion of the Bureau of Outdoor Recreation's study. In January 1964, representatives of this Bureau, together with engineers from the Bureau of Public Roads, visited Bedford, inspected the alternative routes, looked at the wildlife sanctuaries on *656 Chestnut Ridge and on the westerly route, and conferred with a number of interested Bedford citizens. The Bureau of Outdoor Recreation rendered its report in February 1964. It concluded that: "Considering all known factors as well as those which may be projected into the future through adequate and proper planning processes, it is concluded that of the two routes under consideration the westerly route is by far the least damaging to the existing and future open space needs of the county. It appears that in consideration of the open space needs of the county, the expenditure of an additional $4.3 million is rather clearly justified." On March 27, 1964, Secretary Udall wrote to Secretary of Commerce Hodges expressing his agreement with the Bureau's report and recommending that the westerly route be approved. On May 22, 1964, several of the present plaintiffs, together with the Planning Administrator of Westchester County, Schulman, met with Secretary of Commerce Hodges and Administrator Whitton. The Secretary expressed the view that the greater cost of the westerly route was a difficult factor to overcome and suggested that perhaps some of the opponents of Chestnut Ridge would be willing to contribute some $4,500,000 in order to defray this additional cost. Some effort was made to raise this substantial sum but it proved to be unsuccessful. Meanwhile, the letters of protest and conferences with highway officials continued. Administrator Whitton designated an engineer in the Bureau of Public Roads, Lacy, to review the voluminous material which by that time had accumulated. Lacy did so and rendered an oral report to Whitton in which he recommended that the Bureau adhere to its original decision. On November 9, 1964, a memorandum was prepared in the Washington office of the Bureau of Public Roads which recounted the history of the controversy, referred to the Department of the Interior report, discussed the conservation aspects of the respective routes, and concluded "Public Roads finds the merits of the case more adequately support the selection of the Chestnut Ridge line as the proper location for this highway." Whitton accepted these recommendations. On December 5, 1964 he wrote to McMorran stating that: "The reevaluation confirms the earlier decision that the eastern alternative, also referred to as the Chestnut Ridge line, is the location which best serves the overall public interest." He thereupon reaffirmed the decision and authorized resumption of work. This was not the end of the matter. In March 1965, some of the plaintiffs met with Whitton and with Secretary Connor, who by this time was Secretary of Commerce. Senator Javits apparently arranged the meeting but did not attend it. After this meeting, Whitton wrote to Weidlein, president of one of the plaintiffs, on March 18, 1965 explaining at some length the reasons for the reaffirmance of the decision. In August 1965 a Subcommittee on Public Roads of the Senate Committee on Public Works, of which Senator Metcalf was chairman, held a hearing on the highway program. Administrator Whitton testified. Part of his testimony was devoted to explaining his decision on Chestnut Ridge. In October 1965 Whitton halted engineering work on the road for the second time pending further reexamination. This came about because the opponents of Chestnut Ridge pointed out that the State Department of Public Works had conceded in a letter dated August 3, 1965 to the Supervisor of Bedford that the State did not as yet "have adequate cost estimates" for the route. The Westmoreland Sanctuary, one of the present plaintiffs, employed an expert, Charles H. Sells, to make a cost study of the two routes. Sells' figures were checked by the State Department of Public Works, *657 which disagreed with some of his conclusions. On February 17, 1966, McMorran transmitted to Whitton Sells' estimates of the cost of the respective routes, together with those of the State engineers. This data showed that costs had risen substantially since the preliminary estimates in 1962. The 1962 estimate showed a total cost for Chestnut Ridge of $14,500,000 as against a total cost of $18,800,000 for the westerly route. Of these totals, $11,600,000 and $14,300,000 were construction costs for the respective routes, and $2,900,000 and $4,500,000, respectively, were the costs of acquiring rights of way. In February 1966, Sells estimated a cost of construction for Chestnut Ridge of $18,778,000 plus cost of right of way acquisition of $3,991,000, making a total of $22,769,000. For the westerly route, he estimated a construction cost of $22,080,000 and cost of right of way acquisition of $2,483,000, for a total of $24,563,000. The difference in totals thus favored Chestnut Ridge by the difference between $24,563,000 and $22,769,000, i. e., $1,794,000. The New York Department of Public Works, however, estimated a construction cost for Chestnut Ridge of $18,778,000, plus right of way acquisition cost of $2,410,000, making a total of $21,188,000. For the westerly route, it estimated a construction cost of $23,070,000 plus right of way acquisition cost of $3,770,000, making a total of $26,840,000, or a difference in total in favor of Chestnut Ridge of the difference between $26,840,000 and $21,188,000, i. e., $5,652,000. On March 18, 1966, a group of Chestnut Ridge opponents met again with Secretary Connor and with Whitton. Senator Metcalf and Representative Fulton were present. There was a full discussion of their contentions, including those based upon the report of the Bureau of the Department of the Interior. Secretary Connor said that he felt that it was his responsibility to make the final decision. On April 6, 1966, Whitton wrote to McMorran stating that he had considered the new data and all the other relevant factors, that he had discussed the matter with Secretary Connor and Under-Secretary Boyd and that it was their unanimous decision that the road should be built along Chestnut Ridge. Whitton's reasons for this decision as expressed in this letter will be discussed further hereinafter. On the same day, April 6, Secretary Connor wrote to Governor Rockefeller stating: "After the most careful evaluation of all factors, I have decided to concur in Mr. Whitton's recommendation that the East or Chestnut Ridge line be reapproved." This decision of April 6, 1966 is the final administrative determination which plaintiffs seek to review in this action. Plaintiffs assert, however, that even after April 6, the decision should have been reversed because of events that occurred subsequent to that date, and that the refusal to reverse it even as late as December 1966 was arbitrary and capricious. These subsequent events involved a still further drastic increase in the cost of the road. This came about not only because of a general increase in construction costs between February and December 1966, and increased expenditures for landscaping, but also because of a decision of the State Department of Public Works made in May 1966 to change the road from four to six lanes in width. On May 20, 1966, the State requested the Bureau of Public Roads to approve this change. The Bureau approved it on June 28. In November 1966 the State Highway engineers prepared a new estimate of construction costs of the Chestnut Ridge route from Armonk to Harris Road. It came to $27,428,000, as compared with the State's estimate in February 1966 of construction costs of $18,778,000. On November 18, 1966, the Bureau of Public Roads approved the State's plans, *658 specifications and estimate for the project, authorized the State to advertise for bids and committed the federal government to provide the necessary funds in accordance with the Highways Act. The bids that subsequently were received by the State in December 1966 conformed closely with the State's estimate. Only one bid was received for the construction of the section of the Chestnut Ridge route from Armonk to Route 172. This was in the amount of $19,238,434.86, as compared with the State's November estimate for this section of $19,610,000. The Bureau refused to authorize the State to accept this bid because there had been only one bidder. Consequently, the State again invited bids on this section. Again it received only one bid, from the same bidder as before. This time the bid was somewhat higher, i. e., $19,488,274.86. This bid has not yet been accepted. Bids were not requested specifically for the construction of the section of the Chestnut Ridge route north from Route 172 to Harris Road. Instead, bids were invited for the entire section of Interstate 87 from Route 172 all the way north to Route 35 at Katonah. The bids submitted for this section included the cost of constructing an elaborate interchange north of Harris Road near Katonah. This will be very expensive. This item of cost is not relevant to the present dispute, since it would be incurred in any event regardless of which route is selected between Armonk and Harris Road. The State has accepted a bid for the work from Route 172 to Katonah in the amount of $26,041,726.10. Construction work started on this section on January 30, 1967, proceeding southerly from Katonah. It has already reached a point approximately one mile south of Harris Road. In November 1966 the State also prepared an estimate of construction costs of the westerly route from Armonk to Harris Road. Its estimate was $31,906,000 as against its estimate of $27,428,000 for Chestnut Ridge, a difference in favor of Chestnut Ridge of $4,478,000. The State engineers furnished these estimates to the Bureau of Public Roads. Engineers in the Bureau's district office studied them and made computations of their own. Whitton testified that he was not furnished in late 1966 with a new comparison between construction costs of Chestnut Ridge and the westerly route. He testified, however, that he was confident that the differential in cost between the two routes was approximately the same as before, even though overall costs had increased. The State's estimates of November 1966 bear this out. It is also apparent that the lower echelons of the Bureau of Public Roads were aware of the State's comparison, whether Whitton was or not. Plaintiffs have attacked these estimates and the November 1966 computations of the federal district engineers, but they have produced no substantial evidence to impugn them. I am satisfied that the increase in costs between February and November 1966 did not materially affect the difference in the cost of the two routes. The most that can be said is that, percentagewise, the difference at the end of 1966 was not quite as large as it had been previously. Although the evidence does not permit fixing the precise amount of that difference, I find that it amounted to at least $4,000,000, i. e., that the cost of construction of the Chestnut Ridge route as of December 1966 was still at least $4,000,000 less than the cost of constructing the westerly route would have been. As to the cost of acquiring rights of way, as distinct from cost of construction, we have no actual figures to compare because no right of way has been acquired along the westerly route. The latest estimates on this subject are those of February 1966. At that time the State engineers estimated that acquisition of right of way would cost some $2,410,000 on *659 Chestnut Ridge as against $3,770,000 for the westerly route. Plaintiffs' expert, on the other hand, was of the opinion that acquisition of rights of way along Chestnut Ridge would be more expensive. He estimated a cost of $3,991,000 for Chestnut Ridge as against $2,483,000 for the westerly route, a difference of $1,508,000. It is by no means clear that Sells' estimate was accurate, but even assuming that it was, the difference would not, in any case, offset the cheaper construction cost of the Chestnut Ridge route. I conclude that the change in design of the road from four to six lanes after April 1966 and the increase in construction costs after that date does not affect the question to be decided here, one way or the other. If the Highway Administrator's decision of April 6, 1966 was not arbitrary and capricious at that time, it did not become so because of any change in conditions between April and December 1966. On the other hand, if that decision was arbitrary and capricious when it was made, it was not saved by subsequent events. The question, therefore, is whether the decision of April 6, 1966 was arbitrary and capricious at that time. Before discussing the evidence bearing on that question, I will first note briefly my reasons for denying defendants' motion to dismiss the action on the grounds of the unreviewability of the administrative decision and of plaintiffs' lack of standing to review it. That motion raises difficult questions of federal judicial power, neither of which is free from doubt. On each I have given the benefit of the doubt to plaintiffs. As to the first question, the Court of Appeals has recently held in Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966), that the court has power to review a decision of the Secretary of Health, Education and Welfare which refused to reopen a decision disallowing a claim for insurance benefits under the Social Security Act. The court reached this result despite the fact that the Social Security Act did not provide for judicial review of this particular kind of decision. The court based its conclusion upon the Administrative Procedure Act (5 U.S.C. § 706) which it regarded as a jurisdictional statute. The court said: "Absent any evidence to the contrary, Congress may rather be presumed to have intended that the courts should fulfill their traditional role of defining and maintaining the proper bounds of administrative discretion and safeguarding the rights of the individual." 356 F.2d at 6. See also Toilet Goods Ass'n v. Gardner, 360 F.2d 677 (2d Cir. 1966), cert. granted, 385 U.S. 813, 87 S.Ct. 81, 17 L.Ed.2d 53 (1966); United States v. State of New York, 160 F.2d 479 (2d Cir. 1947) (dissenting opinion of L. Hand, J.), cert. denied, 331 U.S. 832, 67 S.Ct. 1512, 91 L.Ed. 1846 (1947); Brown v. McMorran, supra, in which the concurring opinion noted the trend of recent scholarly comment in favor of judicial review of so-called "legislative" administrative acts. 13 A.D.2d 661 at 662, 257 N.Y.S.2d 74 at 76; Jaffe, Judicial Control of Administrative Action 375 (1965). Cases cited by defendants in which administrative action was held to be unreviewable dealt with other areas of administrative law. None of them involved a decision of the Highway Administrator. The only Highways Act case that can be found, Commonwealth of Massachusetts v. Connor, 248 F.Supp. 656 (D.Mass.1966), aff'd per curiam, 366 F.2d 778 (1st Cir. 1966), was concerned with quite a different point. I see nothing in the Highways Act which indicates a congressional intent to immunize the Bureau of Public Roads from judicial scrutiny of its acts. Moreover, the new Department of Transportation Act specifically makes the Administrative Procedure Act applicable to proceedings under the Act. 49 U.S.C. § 1655(h). The legislative history indicates that the Transportation Act is declaratory of existing law. House Rep. No. 1701, 89th Cong. 2d Sess. (1966) in 3 U.S.Code Cong. & Ad.News p. 3374. *660 To hold that these decisions cannot be reviewed, no matter how arbitrary they may be, would be unsound and unjust. As to the second question, plaintiffs' standing to ask the court to undertake such a review, I have based my decision upon the implications, rather than the exact holding, of the recent decision of the Court of Appeals in Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966). Under the law as it stood prior to that decision, it may well be that these plaintiffs do not have the necessary standing. See Green Street Assn. v. Daley, 373 F.2d 1 (7th Cir. 1967); Berry v. Housing and Home Finance Agency, 340 F.2d 939 (2d Cir. 1965); Harrison-Halsted Community Group v. Housing and Home Finance Agency, 310 F.2d 99 (7th Cir. 1962), cert. denied, 373 U.S. 914, 83 S.Ct. 1297, 10 L.Ed.2d 414 (1963); Gart v. Cole, 263 F.2d 244 (2d Cir. 1959), cert. denied, 359 U.S. 978, 79 S.Ct. 898, 3 L.Ed.2d 929 (1959). Scenic Hudson may have changed that law in cases like the present one. In Scenic Hudson, the court held that an organization devoted to conservation, as well as certain New York towns, had standing to obtain a review of a decision of the Federal Power Commission which granted a license to Consolidated Edison Company to build a hydroelectric project at Storm King Mountain. The court interpreted Section 313(b) of the Federal Power Act (16 U.S.C. § 825l(b)) which provides that "[a]ny party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order * * *." The court held that the appellants, who had been parties to a proceeding before the Commission, were "aggrieved" within the meaning of that section. The court discovered such a congressional intent in a provision of the Act (16 U.S.C. § 803(a)) which requires the Commission to adopt a plan which will take into account the use of the area for "recreational purposes." The court said that this phrase encompasses "the conservation of natural resources, the maintenance of natural beauty, and the preservation of historic sites." (354 F.2d at 614). The court went on to hold: "In order to insure that the Federal Power Commission will adequately protect the public interest in the aesthetic, conservational, and recreational aspects of power development, those who by their activities and conduct have exhibited a special interest in such areas, must be held to be included in the class of `aggrieved' parties under § 313(b). We hold that the Federal Power Act gives petitioners a legal right to protect their special interests." 354 F.2d at 616. The Administrative Procedure Act (5 U.S.C. § 702) entitles a person who is "aggrieved by agency action within the meaning of a relevant statute," to obtain judicial review of that action. The "relevant statute" in this instance is the Federal Highways Act. That Act expresses the intent that "local needs, to the extent practicable, suitable, and feasible, shall be given equal consideration with the needs of interstate commerce." (23 U.S.C. § 101(b)). A project, among other things, is "to conform to the particular needs of each locality." (23 U.S.C. § 109(a)). See also 23 U.S.C. § 134. The Act declares it to be the national policy that "in carrying out the provisions of this title, the Secretary shall use maximum effort to preserve Federal, State, and local government parklands and historic sites and the beauty and historic value of such lands and sites." (23 U.S.C. § 138). Regulations adopted by the Secretary under the Act provide that: "The conservation and development of natural resources, the advancement of economic and social values, and the promotion of desirable land utilization, as well as the existing and potential highway traffic and other pertinent criteria are to be considered when selecting highways to be added to a *661 Federal-aid system * * *." 23 C.F.R. § 1.6(c)[2] I have concluded that these provisions are sufficient, under the principle of Scenic Hudson, to manifest a congressional intent that towns, local civic organizations, and conservation groups are to be considered "aggrieved" by agency action which allegedly has disregarded their interests. I see no reason why the word "aggrieved" should have a different meaning in the Administrative Procedure Act from the meaning given to it under the Federal Power Act. See 3 Davis, Administrative Law § 22.05 at 225 (1958). The "relevant statute," i. e., the Federal Highways Act, contains language which seems even stronger than that of the Federal Power Act, as far as local and conservation interests are concerned. I appreciate that, speaking strictly, Scenic Hudson can be distinguished from the present case on the ground that Scenic Hudson involved an appeal from an administrative decision in a proceeding to which appellants were already parties, whereas here, plaintiffs have brought an independent action. Plaintiffs were not previously parties in a formal sense to any administrative proceeding, although as a practical matter they participated actively in attempting to secure an administrative determination favorable to their interest. My decision here can be thought to involve an extension of the Scenic Hudson doctrine. If so, it is an extension which I believe to be warranted by the rationale of that decision. I turn now to the merits of the action. At the outset, I repeat a finding that I made orally at the conclusion of the trial, i. e., that plaintiffs have not proved their contention that the administrative determination which they attack was made in bad faith as a result of "political pressure." I find that the Secretary of Commerce, the Highway Administrator, and the subordinate officials of the Bureau of Public Roads acted honestly throughout, and that their decision was based upon what they in good faith believed to be the merits of the question which they were called upon to decide. I also find that defendants have not proved their affirmative defense that plaintiffs are guilty of "unclean hands." It is true that plaintiffs enlisted the aid of various political figures to plead their cause with the Administrator. But there is no evidence that they acted improperly in so doing, or that these various supporters did anything more than give the Administrator the benefit of their views. It is obvious that both the advocates and the opponents of the Chestnut Ridge alignment have done their best to influence the federal highway officials to decide in their favor, but there is no basis in this record for a finding that any of them did anything "unclean." These charges and counter charges of "political pressure" are without foundation. They serve only to cloud the true issue. Another contention may be disposed of at the beginning. It is apparent from Whitton's testimony, and from some of his letters, that he feels differently about highways than the citizens of Bedford do. In his decision of April 6, 1966, he expressed the opinion that highways "enhance the area through which they pass," and that "those who want to preserve, enhance, and increase our natural and recreation resources will take pride in this facility." I have no doubt that he is sincere in this belief. I can well appreciate, however, that people whose property and interests are affected by these great six-lane roads not only dissent from these opinions, but consider them so bizarre as to be almost irrational. But this attitude on the part of *662 highway officials toward highways in general does not necessarily make their selection of a particular route arbitrary or capricious. Granted that highway engineers may have a point of view which differs from that of conservation groups, they are still capable of observing and noting the conservation aspects of two alternative routes. I come now to the central question in the case. The evidence makes it clear that if the choice between Chestnut Ridge and the westerly route is viewed strictly as an engineering problem, Chestnut Ridge is the correct choice. It is shorter, straighter and cheaper. This has been true from the beginning. This is doubtless why the State originally selected it before the protests began. It is true now, despite the change in design of the road and the increase in costs over the years. It is also apparent from the evidence, without serious dispute, that fewer individual property owners will be affected by the Chestnut Ridge route. But it is equally clear, under the Highways Act, that the choice is not to be made purely and simply on the basis of engineering considerations or by counting the number of landowners who are affected. Other factors must be taken into account, notably local planning needs and the impact of the road upon natural resources and natural beauty. Whitton considered these factors. But plaintiffs contend that the evidence concerning them weighed so overwhelmingly against Chestnut Ridge that it necessarily follows that Whitton did not give these factors their proper weight and that hence his overall decision was so unsound as to be arbitrary. Cf. Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d 715 (2d Cir. 1966); N. L. R. B. v. Jas. H. Matthews & Co., Industrial Mark. Prod. Div., 342 F.2d 129 (3rd Cir. 1965), cert. denied, 382 U.S. 832, 86 S.Ct. 74, 15 L.Ed.2d 76 (1965). The evidence establishes the administrative record, i. e., the information which the Administrator had before him. It is on that record that the Administrator acted and on that record that his action must be judged. There was, of course, no record in the usual sense. There was no stenographic transcript of any formal hearing before the Administrator or before a hearing examiner. The stenographic transcripts of the two public hearings held in Bedford in 1961 and 1962 are, however, a part of the record in the sense that they contain data which the Bureau of Public Roads considered. So are the many memoranda and letters submitted to the Bureau by advocates of one route or the other. The report of the Department of the Interior is part of that record. In addition to this written material, which is very voluminous, I admitted testimony of oral communications to the Secretary of Commerce, the Administrator and the Bureau engineers, on the theory that these also are properly part of the record. The parties do not seriously dispute what the administrative record is. They disagree as to its effect. As to the conservation aspects, there are wildlife sanctuaries on both routes. A marshland sanctuary on the westerly route, consisting of some 46 acres, would be destroyed if that route were adopted. A nearby public park would be adversely affected. On the Chestnut Ridge route, the road would run directly between the Butler Sanctuary and the Westmoreland Sanctuary. These are much larger areas than the western marsh, 254 acres and 105 acres respectively, but only 9.3 acres of one would actually be appropriated for the road, and no land would be taken from the other. Doubtless traffic noises and gasoline fumes would penetrate to some extent into the areas not physically taken. Plaintiffs claim that were it not for the road, adjacent landowners would donate more land to the sanctuaries. There is no definite proof of this. No prospective donor so testified. Byram Lake, the Mt. Kisco water supply, lies on the Chestnut Ridge route. Special installations are planned to prevent pollution of the lake by drainage from the road. Despite plaintiffs' expressed fears, there is no evidence to show that these precautions will be ineffective. *663 Throughout the trial both parties tended to emphasize the sanctuaries as of primary importance on the conservation and natural beauty issue. But there are other considerations. The entire countryside has great charm. When one considers the entire stretch of the alternative routes, i. e., 8.8 or 9.5 miles respectively, the evidence does not demonstrate that one is outstandingly superior to the other in overall natural beauty. The Department of the Interior considered Chestnut Ridge more important from a conservation point of view and believed that more grievous injury to the interests of conservation would result from placing the road there. The New York Commissioner of Conservation expressed a similar opinion. The Bureau of Public Roads did not consider these opinions conclusive. Lacy testified that he was "disappointed" in the Department of the Interior report because "it offered very little in the way of new information." He advised Whitton that it was "a stalemate in so far as conservation and recreational activities were concerned." The District Engineer and the Regional Engineer each believed, with perhaps some justification, that the opponents of the Chestnut Ridge route had exaggerated the injury to wildlife in that area. After examining all the evidence on the conservation question, I cannot say that the Administrator's evaluation of that evidence was contrary to its overwhelming weight, despite the fact that if I had been in his place I might have evaluated it differently. Plaintiffs' argument on the local needs and planning aspects is somewhat stronger. The testimony of the Westchester County Planning Administrator as to the advantages of the westerly route from a planning point of view was impressive. At the public hearings the State Department of Commerce and the Westchester County Public Works Department also favored the westerly route for planning reasons. The town of Bedford has consistently favored the westerly route and opposed the Chestnut Ridge route because it bisects the town. Although opinion in the village of Mt. Kisco appears to have been divided, the majority seems to have favored the westerly route. On the other hand, the towns of North Castle and New Castle, which are affected by the road to a lesser extent than Bedford, have favored Chestnut Ridge for planning reasons. The Upper Westchester Community Association has favored Chestnut Ridge. At the public hearings, opinion of local residents was divided. I believe that the planning evidence preponderates in favor of the westerly route. District Engineer Koch recognized this from the beginning. Whitton seems to have considered the evidence on this subject to be more evenly divided. Planning is an important factor, but it is only one factor out of several, just as cost is only one factor. The same is true of conservation. The ultimate question is whether the overall decision, viewed in the light of all the competing factors, was arbitrary. Here certain factors are clearly in favor of Chestnut Ridge. Others seem to me to weigh more heavily in favor of the westerly route than Whitton thought they did. The law is clear that the court cannot substitute its own judgment for that of the administrative agency. N. L. R. B. v. Jas. H. Matthews & Co., supra; Zucker v. Baer, 247 F.Supp. 790 (S.D. N.Y.1965). The decision must be allowed to stand unless it was plainly wrong. I have reviewed this entire lengthy record and I have given this matter considerable thought. Having done so, I conclude that this administrative decision was not wrong enough to permit this court to upset it. The position of the State of New York must also be considered. Clearly, the State was entitled to an opportunity to be heard as a party in this action. Heyward v. Public Housing Administration, 94 U.S.App.D.C. 5, 214 F.2d 222 (1954); Stevens v. Bartholomew, 222 F.2d 804, 96 U.S.App.D.C. 11 (1955). Accordingly, I directed that it be brought in. The State was unwilling to come in. It chose to rest on its sovereign *664 immunity, as it had the right to do. Chandler v. Dix, 194 U.S. 590, 24 S.Ct. 766, 48 L.Ed. 1129 (1904); Hans v. State of Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). By participating in the federal highway program and seeking federal funds to finance this road, the State did not waive its immunity from suit. DeLong Corp. v. Oregon State Highway Com'n, 233 F.Supp. 7 (D.Ore.1964), aff'd, 343 F.2d 911 (9th Cir. 1965), cert. denied, 382 U.S. 877, 86 S.Ct. 161, 15 L.Ed.2d 119 (1965). Consequently, the attempt to bring it in as a party had to be abandoned. Is the State an indispensable party so that this court cannot proceed in its absence? This question was left open in Heyward v. Public Housing Administration, supra, and Stevens v. Bartholomew, supra. One case, involving somewhat analogous facts, has held that an absent governmental party is indispensable. Balter v. Ickes, 89 F.2d 856 (1937), 67 App.D.C. 112, cert. denied, 301 U.S. 709, 57 S.Ct. 941, 81 L.Ed. 1363 (1937). This case was decided before the recent amendment of Rule 19. No cases in point arising since that amendment have been found. In accordance with Rule 19(b), I have considered "whether in equity and good conscience the action should proceed." In view of the fact that the State's absence is of its own choosing, it seems to me inequitable to hold that the State can thereby prevent these plaintiffs from obtaining in a federal court the judicial review of the acts of federal officials to which they are otherwise entitled. I have concluded, therefore, that the State is not an indispensable party. It does not follow, however, that a court of equity may close its eyes to the position in which the State now finds itself. The State has obtained a commitment from the federal government for many millions of dollars for the construction of this road. In reliance on this commitment, it has entered into a construction contract for over $26,000,000. The contractor has already spent or committed almost $9,000,000 under that contract for labor, materials and equipment. The State has spent over $1,000,000 in engineering the Chestnut Ridge route. It has acquired 92 rights of way along that route. It has made offers to property owners totalling over $2,000,000, and has already reached agreement with property owners for rights of way on claims aggregating over $200,000. To enjoin defendants at this stage from carrying out the commitment of the federal government to provide 90 per cent of the necessary funds for this project would create a chaotic situation. Plaintiffs argue that the damage to the State could be mitigated, that the rights of way which the State has acquired could be sold or returned to their former owners, that the course of the road could be changed without undue hardship. These arguments do not seem to me to be realistic. Some loss, as for example, engineering expenses, would obviously be irretrievable. In all likelihood, the ultimate loss would amount to much more. Substantial delay, perhaps amounting to over two years, would be encountered before a new route could be surveyed and engineered. The Highway Administrator's decision was made on April 6, 1966. Plaintiffs could have sued then. Subsequent events have not materially affected that decision. This action was not begun until February 3, 1967. In the meantime, both federal and state authorities have changed their position in reliance upon that decision. This comes perilously close to laches. At the very least, it is a factor which this court must take into account. The court would not be justified in disregarding it without a stronger showing of illegality of the Administrator's decision than has been made here. Pursuant to Rule 52(a), this opinion constitutes the court's findings of fact and conclusions of law. Plaintiffs' motion for a preliminary injunction is denied. The Clerk is directed to enter judgment in favor of defendants dismissing the action. So ordered. NOTES [1] At the time of the administrative determination which plaintiffs seek to review, the Bureau of Public Roads, which administers the Federal Highways Act, was in the Department of Commerce. The Secretary of Commerce delegated his authority to perform most of the functions vested in him by the Act to the Federal Highway Administrator. 25 Fed.Reg. 4166 (1960). The Department of Transportation Act (49 U.S.C. § 1651 et seq.), which became effective on April 1, 1967 (see 32 Fed.Reg. 5453 (1967)), transferred the Bureau of Public Roads to the new Department of Transportation. See 49 U.S.C. § 1655. The Federal Highway Administrator continues to have the authority that was delegated to him by the Secretary of Commerce. See 32 Fed. Reg. 5607 (1967). [2] The new Department of Transportation Act contains an additional provision on this subject, 49 U.S.C. § 1651(b) (2), which states: "It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites." See also 49 U.S.C. § 1653(f).

672 F.Supp. 46 (1987) Carmen Felicita ARRIETA GIMENEZ, et al., Plaintiffs, v. Alberto ARRIETA NEGRON, et al., Defendants. Civ. No. 83-2460 (JAF). United States District Court, D. Puerto Rico. September 30, 1987. As Amended November 10, 1987. *47 Blas C. Herrero, Jr., Carmen Felicita Arrieta, Iván Díaz de Aldrey, Conjugal Partnership, San Juan, P.R., for plaintiffs. Edward A. Godoy, Feldstein, Gelpi, Hernandez & Gotay, San Juan, P.R., for defendants. OPINION AND ORDER FUSTE, District Judge. This case is before us on a motion for summary judgement by the co-defendants in this action. Fed.R.Civ.P. 56. Those facts undisputed by both parties follow in relevant detail. After two marriages and five children, Rafael Arrieta Ríos passed away on November 8, 1958. Plaintiff Carmen Felícita Arrieta Giménez is the child of his second wife and widow, Felícita Giménez Alvarez-Torres. Co-defendants are the children from his first marriage. At his death, Arrieta's estate consisted of real and personal property in the Commonwealth of Puerto Rico and in the State of Florida. The course of probate was far from smooth. Arrieta's children from his first marriage contested his widow's election of dower and probate of the estate in Dade County. They, together with the estate of their mother and Central Juanita, Inc., of which Rafael Arrieta Ríos was a shareholder, also filed various claims against the estate in the Dade County proceedings. The widow and her daughter objected to all of these claims. In addition, they contested probate of the estate in Indian River County, Florida. Eventually, on July 27, 1960, in Florida, plaintiff and her mother signed a Settlement Agreement with co-defendants. That contract purported to "irrevocably terminate and settle any and all differences and claims ... excepting such as are afforded by this Agreement." Settlement Agreement at 12. Under the terms of the Agreement, plaintiffs were to drop any claims against the co-defendants, who were in turn to drop their own cases. Plaintiff would be paid $175,000 and the widow $350,000 for their shares of Arrieta's estate. Moreover, the balance of a mortgage owed by the plaintiff was to be made by co-defendants. Finally, the plaintiff received title to a 1958 Buick and she and her *48 mother were to be held harmless from any taxes levied on the estate. Plaintiff admits that she and her mother received all that was due under the Agreement. In fact, the balance of the moneys owed was paid by July 26, 1962. Plaintiff filed the complaint that produced this action because on October 7, 1983 she discovered a Declaration of Trust in the records at the Registry of the property of Bayamón, Puerto Rico, indicating to her that the true value of her father's estate was considerably higher than she believed when she signed the Settlement Agreement. Indeed, plaintiff asserts that the value of her share of her father's estate was over $5 million, but that she was defrauded by her half-siblings, especially the oldest, Alberto Arrieta Negrón, into signing the Agreement and forfeiting her inheritance for far less than it was worth. Months after she discovered the Declaration of Trust, plaintiff commenced this action. Nonetheless, even taking all of plaintiff's allegations of fraud and concealment to be true, we find that the applicable statute of limitations bars her claim. I. Pursuant to Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 28 L.Ed. 1188 (1938), federal courts apply the substantive law of the state in which they sit, including state conflicts of law provisions. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Advance Financial Corp. v. Isla Rica Sales, Inc., 747 F.2d 21, 28 (1st Cir.1984). Consequently, the Puerto Rico conflicts of law standards govern our determination. Faced with plaintiff's claim of fraud, we turn to the Puerto Rico Supreme Court case, Widow of Fornaris v. Amer. Surety Co. of N.Y., 93 P.R.R. 538 (1961), which adopts the doctrine of "dominant contacts" for "damages" or torts. Under that doctrine, "[i]t is not the number of contacts what [sic] determines the applicable law but the quality of the latter in relation to the question in controversy." Green Giant Co. v. Superior Court, 104 P.R.R. 489 (1975). In Green Giant, the Supreme Court distilled the principles judges should consider as follows: a) predictability of results, b) maintainance of interstate and international order, c) simplification of the judicial task, d) advancement of the forum's governmental interests and e) application of the better rule of law. 104 P.R.R. at 695, citing R. Leflar, American Conflicts Law at 245 (1959). With those standards in mind, we hold that, although it is a close question, Florida law applies to this particular claim. From 1958-1962, plaintiff resided, "permanently" by her own admission, in Fort Lauderdale. At least one of the defendants resided in Florida at that time. The agreement was signed in Florida and approved by the Dade County Probate Court there. All of the parties retained Florida lawyers. Indeed, payments pursuant to the Agreement were made through the Florida offices of the attorneys representing the plaintiffs. We conclude that the parties had reason to expect Florida law to govern their transaction, that Florida retains an interest in regulating the conduct of those making agreements in that state, and that no purpose of the Commonwealth of Puerto Rico is served by applying Puerto Rican law to the transaction. II. Applying Florida law, we find that the relevant statute of limitations bars plaintiff's claim. Florida Statutes, Section 95.031(2) (1986) reads: Actions for products liability and fraud under s. 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3), but in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the *49 date the fraud was or should have been discovered. This language quite clearly bans an attempt to redress a wrong that may have been committed more than twenty years ago.[1] While we sympathize with the plaintiff's desire for redress, the rationale behind the Florida legislature's actions is equally understandable. The lawmakers evidently concluded that there comes a time when the curtain must fall on a cause of action regardless of when the wrong is discovered. As the Supreme Court has held, and defendants have noted in their brief: The theory is that even if one has a just claim it is not unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of state claims in time comes to prevail over the right to prosecute them. Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-9, 64 S.Ct. 582, 586, 88 L.Ed. 788, quoted in American Pipe and Construction Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 766-67, 38 L.Ed.2d 713 (1974). Nor are we persuaded by the facts of this case to protest the congressional mandate. When the plaintiff signed the Agreement she was already a college graduate; twelve years later she was certainly mature enough, and had been for some time, to investigate any wrongs that may have been committed by her brothers and sisters. We cannot view this as an instance where a cause of action was undiscoverable during the statutory period and thus unconstitutionally barred before it ever arose. Cf. Diamond v. E.R. Squibb and Sons, Inc., 397 So.2d 671, 672 (1981) (McDonald, J., concurring). III. It should be noted briefly that even if Puerto Rico law were to apply to all or part of this action, plaintiff would still be time-barred. The applicable Puerto Rico statutes, articles 1221 and 1253 of the Civil Code, 31 L.P.R.A. secs. 3408 and 3512, govern actions for nullification of a contract. Rivera v. Heirs of Díaz, 70 P.R.R. 168, 172-73 (1949).[2] Under those standards, such an action cannot be brought once four years have passed since the execution of the contract. No reasonable period for discovery is given, nor will any other event toll the statute of limitations. Simply put, we are faced with a civil law caducity term (period of extinguishment) that cannot be extended. See Lummus Company v. Commonwealth Oil Refining Co., 280 F.2d 915, 930-31 n. 21 (1st Cir.), cert. denied, 364 U.S. 911, 81 S.Ct. 274, 5 L.Ed.2d 225 (1960); cf. Fireman's Insurance Co. of Newark, N.J. v. Gulf Puerto Rico Lines, 349 F.Supp. 952, 957-58 (1972). Lapse of time extinguishes the right to a cause of action to the point that it can be raised ex officio judicis. Ortiz Rivera v. Heirs of González Martínez, 93 P.R.R. 549, 552-56 (1966). A contemporary Spanish commentator to the Civil Code is in agreement that the term of four years contained in article 1253 of the Civil Code, 31 L.P.R.A. sec. 3512, is one of caducity or extinguishment, properly speaking one of "caducidad". Referring to the Spanish counterpart, article 1301 of the Spanish Civil Code, Puig Brutau states: *50 [E]ste plazo no es de prescripción extintiva sino de caducidad, de modo que no es susceptible de interrupción y los Tribunales pueden aplicarlo de oficio.[3] J. Puig Brutau, Fundamentos de Derecho Civil, Vol. II No. 1, p. 323 (Bosch, Barcelona, 1971). IV. In sum, we dismiss plaintiff's claim on the basis of applicable law, the Florida statute of limitations for fraud actions. Because we find this basis dispositive, we need not consider defendants' other claim that the Florida Probate Court order approving the Settlement Agreement rendered the arrangements between the parties res judicata for any further actions. The complaint as to plaintiff Carmen Felícita Arrieta Giménez is hereby DISMISSED. IT IS SO ORDERED. NOTES [1] Although in 1986, the Florida legislature amended this statute to remove the absolute twelve-year limitation on products liability claims because of Florida Supreme Court rulings on its constitutionality, we find it significant that the legislature deliberately retained the limit for fraud actions. Appellate court decisions notwithstanding, see e.g., Kempfer v. St. Johns River Water Management, 475 So.2d 920, 924, n. 14 (Fla.App. 5 Dist.1985), we conclude that the statute as amended was expressly intended to bar fraud actions once twelve years pass. [2] Here, as explained in Heirs of Díaz we are faced with pleadings that impliedly concede that the contract is not void but voidable. In Díaz, plaintiffs rested on incapacity pursuant to article 1215 of the Civil Code, 31 L.P.R.A. sec. 3402, which resulted in a void contract ("contrato inexistente o nulo ab initio"), for which there is no statute of limitations. In the case at bar, plaintiff is resting on deceit (fraud) under article 1221 of the Civil Code, 31 L.P.R.A. sec. 3408, which renders the transaction only voidable and thus subject to time-for-suit provisions. [3] Our translation of the quoted language is as follows: This term is not one of prescription of extinction, but of caducity, which is not subject to toll and the courts can apply the same as a matter of course.

13-2852-cv De La Pena v. Metro. Life Ins. Co. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29th day of January, two thousand fourteen. PRESENT: JOSÉ A. CABRANES, REENA RAGGI, SUSAN L. CARNEY, Circuit Judges. _____________________________________ ABDON DE LA PENA, Plaintiff-Appellant, v. No. 13-2852-cv METROPOLITAN LIFE INSURANCE COMPANY, SANG IM, Defendants-Appellees, KATHY DEAS, Defendant. _____________________________________ FOR PLAINTIFF-APPELLANT: Alan E. Wolin, Wolin & Wolin, Jericho, NY. FOR DEFENDANTS-APPELLEES: Stephen E. Tisman, Valerie D. Ringel, Margolis & Tisman LLP, New York, NY.  Appeal from a July 12, 2013 judgment of the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the District Court’s judgment is AFFIRMED. Plaintiff-Appellant Abdon De La Pena (“De La Pena”) appeals from the District Court’s judgment dismissing his complaint for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id. Here, an independent review of the record and relevant case law reveals that the District Court properly dismissed De La Pena’s claim against the defendants. A plaintiff seeking to recover under Title VII must file a discrimination charge with the EEOC within 300 days of the occurrence of the allegedly unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1). Accordingly, the District Court properly dismissed as time-barred De La Pena’s Title VII claims based on allegations of conduct that occurred beyond this 300-day limitation. De La Pena argues on appeal that such claims are proper pursuant to the so-called “continuing violation” exception, under which “a plaintiff who files a timely EEOC charge about a particular discriminatory act committed in furtherance of an ongoing policy of discrimination extends the limitations period for all claims of discriminatory acts committed under that policy even if those acts, standing alone, would have been barred by the statute of limitations.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997). Yet De La Pena’s allegations of discriminatory treatment and hostile work environment amount to “[d]iscrete incidents . . . unrelated to an identifiable policy or practice,” which “will not ordinarily amount to a continuing violation.” Id. (citation and internal quotations omitted). 2  The District Court dismissed De La Pena’s timely discrimination claims for failure to raise a facially plausible inference that defendants’ actions were motivated by racial animus. Plaintiff contends on appeal that by requiring such an inference the District Court disregarded the Supreme Court’s holding in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), that “an employment discrimination plaintiff need not plead a prima facie case of discrimination.” Id. at 515; see also Twombly, 550 U.S. at 570 (reaffirming the continuing vitality of Swierkiewicz). Yet the District Court, with reliance on Swierkiewicz, expressly recognized that De La Pena need not plead facts sufficient to establish a prima facie case. That the Court then dismissed plaintiff’s claim for failure to allege facts showing a plausible inference of discrimination is wholly consistent with Swierkiewicz. The Court simply reached the conclusion that plaintiff’s bald assertions of discrimination—unsupported by any meaningful comments, actions, or examples of similarly-situated persons outside of plaintiff’s protected class being treated differently—were implausible and insufficient to survive a motion to dismiss. Finally, plaintiff contends in conclusory fashion that the District Court erred in dismissing his hostile work environment and constructive discharge claims. After review, we conclude that the District Court properly dismissed these claims for the reasons set forth in its comprehensive opinion. We have considered all of De La Pena’s arguments and find them to be without merit. Accordingly, we AFFIRM the July 12, 2013 judgment of the District Court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 3 

558 F.Supp. 60 (1983) Mae C. BRITTINGHAM v. Richard S. SCHWEIKER, Secretary of Health and Human Services. Civ. A. No. 82-4632. United States District Court, E.D. Pennsylvania, Civil Division. February 7, 1983. Community Legal Services, Inc., Jonathan M. Stein, Philadelphia, Pa., for plaintiff. Dept. of Justice, Serena H. Dobson, Asst. U.S. Atty., Philadelphia, Pa., for defendant. MEMORANDUM NEWCOMER, District Judge. Defendant moves to dismiss as untimely filed this action for judicial review of the dismissal by the defendant of plaintiff's request for Appeals Council review of the hearing decision on her claim for benefits under Title XVI of the Social Security Act ("Act"). Plaintiff opposes the motion to dismiss and instead moves the Court to remand the matter to the Secretary. For the reasons set forth below, defendant's motion is denied and plaintiff's motion is granted. Plaintiff is, allegedly, a severely mentally ill woman who never had an attorney until the time this civil action was filed. She was awarded SSI disability benefits effective January, 1978. On October 29, 1980, she was sent a notice of termination of benefits. Proceeding pro se, she requested and obtained an administrative hearing before and Administrative Law Judge ("ALJ"). On January 20, 1982, the ALJ issued a decision in which he found that plaintiff's disability had ceased, not in October of 1980, but in October of 1981. On the same day, plaintiff was mailed a copy of the ALJ's decision and a document entitled "NOTICE OF FAVORABLE DECISION," which explained the procedure for requesting Appeals Council review. Plaintiff did not make a timely request for Appeals Council review within sixty days. In an affidavit filed with her motion for remand, plaintiff avers that she understood neither the decision nor the appeals procedure, and that she was misled by the caption, "FAVORABLE DECISION" on the notice she received, and by the fact that her SSI checks continued through April of 1982. In May of 1982, when her checks stopped, she went to the Social Security Administration and filed an appeal to the Appeals Council. She did not, however, file an explanation of her reasons for filing her appeal out of time until August 6, 1982. On August 23, 1982, the Appeals Council dismissed plaintiff's appeal without a hearing, stating only that it found her written explanation insufficient and that, from a review of plaintiff's file, *61 she did not appear to be unable to act in her own best interests. In October of 1982, plaintiff contacted Community Legal Services on the advice of a social worker, whereupon a lawyer filed this action on her behalf.[1] Defendant argues in its motion to dismiss that exhaustion of administrative remedies and strict compliance with the timeliness requirements of 42 U.S.C. § 405(g) are absolute jurisdictional prerequisites, citing Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). However, the Supreme Court in Sanders explicitly recognized an exception for cases in which a decision of the Secretary is challenged on constitutional grounds. The proper inquiry, therefore, is whether plaintiff has stated a colorable constitutional claim. In a case with similar facts, the Court of Appeals for the Sixth Circuit held that a plaintiff who alleged that she did not have the mental ability to understand and comply with the administrative appeal procedures had stated a colorable constitutional claim of denial of due process of law. Parker v. Califano, 644 F.2d 1199 (6th Cir.1981). The Parker court further held that the proper procedure for the district court to follow was to remand to the Secretary for a determination, after considering such evidence as might be presented, whether mental illness had prevented the plaintiff from understanding and pursuing her administrative remedies following the denial of her application for benefits. Although I have discovered no case in which the Third Circuit Court of Appeals has addressed the precise issue presented in Parker and this case, I read the court's opinion in Stauffer v. Califano, 693 F.2d 306 (3rd Cir.1982), as implicitly approving Parker's analysis. Accordingly, I will enter an order remanding this case to the Secretary for a hearing to determine factual issues concerning plaintiff's ability to understand and follow the administrative appeal procedures. If it is determined that plaintiff was, in fact, incapable of understanding the meaning of the ALJ's January 20, 1982, decision and the necessity to request Appeals Council Review within sixty (60) days, the Appeals Council should then consider the merits of plaintiff's appeal from the ALJ's decision. Pending these further administrative proceedings, the complaint in this civil action will be dismissed without prejudice. Finally, it remains to be determined whether I should order the Secretary to recommence paying SSI benefits to plaintiff pending further administrative proceedings, as plaintiff requests. Plaintiff offers no authority for this course of action, and I do not believe that it is warranted in view of the procedural posture of the case. I have not determined that the ALJ's decision concerning the termination of plaintiff's disability was erroneous, nor would it be proper for me to do so until the threshold issue of my jurisdiction is resolved. However, because this case involves SSI benefits which are intended to supply the bare necessities of life, and because plaintiff has already been subjected to considerable and possibly unwarranted delay, I will include in my order a requirement that the mandated hearing be held within seventy days from the date the order is entered.[2] ORDER AND NOW, this 7th day of February, 1983, upon consideration of the defendant's motion to dismiss the complaint for lack of subject matter jurisdiction, and upon consideration of plaintiff's opposition thereto and plaintiff's motion for remand and interim relief, it is ORDERED that this case is REMANDED to the Secretary for further proceedings in accordance with the attached Memorandum. *62 IT IS FURTHER ORDERED that the defendant shall see that the administrative hearing mandated by this Order is held within seventy (70) days from the date of this Order, and that a prompt decision is rendered. The complaint is DISMISSED WITHOUT PREJUDICE, pending further administrative action. IT IS FURTHER ORDERED that plaintiff's counsel shall file his request for attorney fees and costs within thirty (30) days from the date of this Order. AND IT IS SO ORDERED. NOTES [1] Defendant does not challenge the timeliness of this civil action vis-a-vis the Appeals Council action, but argues that the refusal of the Council to consider the appeal means that there is no "final decision" of the Secretary to review. [2] I would hope that the hearing can be conducted more promptly, but I feel constrained to select this time period in view of the fact that the parties have sixty days in which to file a notice of appeal from my order. F.R.App.P. 4(a)(1).

911 So.2d 304 (2005) Ronnie PUJOE, Plaintiff-Appellee v. STOWE-WOODARD, Defendant-Appellant. No. 40,044-WCA. Court of Appeal of Louisiana, Second Circuit. August 17, 2005. Rehearing Denied September 28, 2005. *306 Mayer, Smith & Roberts, L.L.P. By Kim Purdy Thomas, Shreveport, for Appellant. Leslie L. LaCroix, Jr., Monroe, for Appellee. Before WILLIAMS, PEATROSS & LOLLEY, JJ. PEATROSS, J. This appeal by employer Stowe-Woodward ("Stowe")[1] arises from an order of the Office of Workers' Compensation ("OWC") in favor of Ronnie Pujoe's ("Mr. Pujoe") continued "intensive therapy" and "deferring" judgment on several trial issues pending the outcome of said therapy. The order of the OWC has been the subject of a previous writ application to this court, which was denied,[2] and is also the subject of the attempted appeal, which was converted into a writ application by this court because the OWC's ruling was not an appealable judgment. This court granted the writ to review the propriety of the OWC's ruling in light of the entire record; and, for the reasons set forth herein, we now affirm. FACTS Ronnie Pujoe was employed by Stowe as a rubber mill operator. On October 22, 2002, Mr. Pujoe was lifting a bale of rubber when he slipped on a wet or oily spot on the floor and fell. Mr. Pujoe stated that he injured his neck and back as a result of this fall. After being treated and released at the hospital, Mr. Pujoe commenced treatment with a chiropractor and was paid temporary total disability benefits commencing on the date of the accident. The chiropractic therapy was unsuccessful, so Mr. Pujoe sought treatment with Dr. Brian Bulloch, an orthopedic surgeon, on November 19, 2002. Dr. Bulloch's assessment of Mr. Pujoe was as follows: Basically it appears as though Mr. Pujoe does have significant cervical, thoracic, and lumbar strains. He may also have a left upper extremity radiculopathy versus a compression neuropathy, possibly cubital tunnel syndrome and he seems to have also a left lower extremity radicular type pattern of pain. Dr. Bulloch recommended that Liberty Mutual Insurance Company ("Liberty") authorize an MRI of Mr. Pujoe's cervical and lumbar spine and a neural exam of his left arm. Mr. Pujoe underwent the MRI studies and neural exam in December 2002. The lumbar MRI revealed several lower back problems, including a "mild-moderate" herniation (extrusion of the inner core) at the L5-S1 vertebrae, a "moderate-severe" *307 stenosis (narrowing of the space between discs) at L5 and a bulging disc with "moderate" stenosis at L4-5. The study also found nerve root impingement at the L4 and L5 vertebrae. The cervical MRI revealed moderate spondylosis (degeneration) at C5-6 with "moderate" stenosis and a "tiny focus" of ischemia (restriction in blood flow) or myelomalacia (loss of material or softening), and similar but lesser changes at C6-7. The neural exam of Mr. Pujoe's left arm was normal. Mr. Pujoe returned to see Dr. Bulloch after these studies. Dr. Bulloch confirmed the findings on the MRI; and, in particular, he observed stenosis at the C5-6 level with ischemia or myelomalacia at that point. Dr. Bulloch recommended that Mr. Pujoe undergo surgery, specifically a diskectomy at C5-6 and C6-7 and cervical fusion. The doctor opined that further lumbar surgery may also be required in the future. Dr. Bulloch restricted Mr. Pujoe from working pending surgery as of December 19, 2002. Liberty did not approve Dr. Bulloch's recommendation for surgery. Instead, they sent him to see another orthopedic surgeon, Dr. Baer Rambach, in January 2003. Dr. Rambach's discussion of his findings stated, in part: This patient has experienced an injury while working on the job on October 22, 2002. He does have some pre-existing degenerative arthritis and degenerative intervertebral disc disease in the cervical spine which may have been aggravated by the nature of the injuries he alleges to have sustained. He also sustained soft tissue injuries to the lumbrosacral area of the spine. Although he does have findings of some spinal stenosis and disc protrusions in the cervical and lumbrosacral regions of the spine, I do not find any strong clinical evidence of mechanical nerve root compression signs which would be consistent with a herniated intervertebral disc. His findings are more subjective than objective. Because of this, I would suggest that surgery be deferred and this patient be given some intensive physical therapy such as at the Ouachita Physical Therapy Center whom I have a lot of confidence in, in Monroe, Louisiana. Dr. Rambach further recommended a series of epidural steroid injections if physical therapy did not produce the desired results. He stated that Mr. Pujoe could return to work at a sedentary or light duty job with temporary restrictions against bending, squatting, stooping, driving, operating dangerous machinery or climbing. Mr. Pujoe testified, however, that Stowe did not offer him a light duty job. Mr. Pujoe returned to see Dr. Bulloch on January 29, 2003, with continued complaints of pain. He discussed Dr. Rambach's findings with Dr. Bulloch, and Dr. Bulloch agreed that an injection series in Mr. Pujoe's lumbar region "and other conservative management" could be beneficial, but restated his opinion that only surgery could correct the problems with Mr. Pujoe's cervical region. Dr. Bulloch reemphasized his opinion that Mr. Pujoe was not then capable of working. Liberty did not approve physical therapy or an injection series; instead, they requested that Mr. Pujoe see a state independent medical examiner ("IME"). Orthopedic surgeon Dr. Douglas Brown was appointed in April 2003 and examined Mr. Pujoe.[3] Dr. Brown found "mild" degenerative changes in Mr. Pujoe's back at C4-5 *308 and C5-6, congenital lumbarization at S1, "previous" bulging of discs at C5-6 and C6-7, and "preexisting" spondylosis at C4-5. Dr. Brown's evaluation stated: I think this man's condition is not commensurate with the need for surgery. His problems appear to be preexisting that may have been sympomatically aggravated by the accident of October 2002. I think this man is fully capable of returning to work. On June 19, 2003, Stowe wrote Mr. Pujoe a letter stating that Liberty had informed Stowe that he was "fully capable of returning to work." As a result of the letter, Stowe offered Mr. Pujoe his old job back. At that point Stowe and Liberty terminated Mr. Pujoe's workers' compensation benefits. Mr. Pujoe returned to work at Stowe as a painter, but continued to have back pain. When he took his pain medication to alleviate the pain, he became unable to work and this caused problems with his supervisor. On July 15, 2003, Mr. Pujoe was told that he should not work around the heavy machinery and a representative of Stowe told him to stop work and go home. Mr. Pujoe testified that, despite promises from the company, no one ever called him back to work. On July 22, 2003, Mr. Pujoe returned to see Dr. Bulloch, who noted that he was "not sure that I have again a significant role in his care at this point because of how things have transpired." He again recommended cervical spine surgery and lumbar injection therapy and, again, recommended that Mr. Pujoe not work because that "would be a significant risk to him." On July 31, 2003, Stowe wrote Mr. Pujoe another letter noting that he was ineligible for workers' compensation because Dr. Brown had released him to work. The letter informed Mr. Pujoe that he might be entitled to short-term disability through Stowe if he so requested; however, if the claim was denied, Stowe would be forced to fire him. At that point, Mr. Pujoe sought unemployment benefits, but was denied because of his doctor's recommendation that he not work. Mr. Pujoe did not thereafter work; in 2004, Dr. Bulloch recommended that he go to LSU-Health Sciences Center ("LSU-HSC") where he might seek treatment at no cost (because Mr. Pujoe had no income). The parties could not reach a settlement, so Mr. Pujoe filed a disputed claim before the OWC and the case was set for trial. At the time of the trial of this matter, Mr. Pujoe was being evaluated at LSU-HSC, but had not obtained any recommendations. He sought a continuance at the beginning of the trial in order for him to be evaluated by a neurologist, Dr. Anil Nanda, but the court denied this request. The court did, however, allow him to raise this issue at trial. Although Stowe had two representatives available to testify (Mr. Pujoe's supervisors), Mr. Pujoe was the only witness who testified at the trial. After the claimant rested his case, the judge asked Stowe to call its first witness, but Stowe, instead, moved for an involuntary dismissal of Mr. Pujoe's claim on the grounds that he had failed to meet his burden of proving his entitlement to benefits or to further medical treatment. After hearing argument, the judge noted that she tended to credit the report of Dr. Rambach because of the court's long experience with his medical opinions and observed that Dr. Rambach's recommendations for physical therapy had not been followed. The court also observed that Dr. Brown, the IME, made no recommendation for or against therapy. There were several questions at trial about the scope of the issues to be decided. *309 Initially, the court granted the motion for involuntary dismissal of Mr. Pujoe's claim for indemnity benefits, surgery or further treatment by physicians at LSU-HSC. The court did, however, order that Stowe pay for Mr. Pujoe to return to Dr. Bulloch, to undergo physical therapy as recommended by Dr. Rambach and to undergo a functional capacity exam ("FCE"). After taking a brief recess, the court rescinded its previous ruling and issued an amended ruling. The court ordered that Stowe pay for Mr. Pujoe to return to Dr. Bulloch and ordered that some of the recommendations of Dr. Bulloch and Dr. Rambach be complied with, including physical therapy, epidural steroid injections and pain management and an FCE in that order. The court then stated that other rulings concerning Mr. Pujoe's entitlement to benefits, surgery or other treatment be deferred until completion of the conservative treatment. The court stated that the remaining issues would be considered after the results of the conservative treatment were known. Stowe and Liberty did not object to the termination of the case without the presentation of their witnesses. Later, however, the attorney for Stowe wrote the OWC a letter questioning exactly what had been deferred and asking that the OWC either decide the motion for dismissal in their favor or allow them to present their case. On November 17, 2004, the court issued written reasons for judgment and signed a judgment in accordance with its reasons for judgment. It noted that Stowe had not provided Mr. Pujoe with the therapy that two of the doctors had recommended and that the third doctor offered no opinion about therapy. The court further stated that it found Mr. Pujoe's testimony to be persuasive. Stowe and Liberty sought writs from this judgment; Stowe alone filed a motion for appeal. This court denied the writ application on the showing made; that application did not contain any of the medical reports relied upon by the OWC. This court subsequently converted the appeal into an application for supervisory writs because the judgment was a partial judgment, and we now consider the merits of the application. DISCUSSION For the purposes of this opinion, we will first set out the standard of review, and then consider Stowe's assignments of error in the following order: three, four, one, two. STANDARD OF REVIEW Factual findings in workers' compensation cases are subject to the manifest error/clearly wrong standard of review. Thornton v. Louisiana Plastic Industries, Inc., 39,105 (La.App. 2d Cir.12/15/04), 889 So.2d 1226, citing Figueroa v. Hardtner Med. Ctr., 35,678 (La.App. 2d Cir.1/25/02), 805 So.2d 1267. Under this standard, a court of appeal may not set aside a trial court's or jury's finding of fact unless it is manifestly erroneous; and, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989), citing Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court; but, if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that, had it *310 been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Thornton, supra, citing, Arceneaux, supra, citing Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985). The manifest error standard of appellate review applies in a worker's compensation action even when the trial court's decision is based solely upon written reports, records or depositions. Young v. Physicians & Surgeons Hosp., 39,348 (La.App. 2d Cir.3/2/05), 895 So.2d 723. Assignment Three: The Hearing Officer (sic)[4] erred in failing to allow the defendant to present its own case on the day of the trial. Provided that the plaintiff has completed the presentation of his case, an involuntary dismissal may be granted in a workers' compensation case. See LAC 40:I:6211; Taylor v. Tommie's Gaming, 04-2254 (La.5/24/05), 902 So.2d 380. La. C.C.P. art. 1672 provides, in part: B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. (Emphasis added.) The article clearly provides for the ordinary procedure for the consideration of a motion for involuntary dismissal, and that procedure includes allowing the unsuccessful movant the opportunity to present its case. Further, La. R.S. 23:1317 provides, in part: A. ... [T]he workers' compensation judge shall hear the evidence that may be presented by each party. We observe that the OWC invited the employer and insurer to present their case at the conclusion of the claimant's case, but the defendants chose first to seek dismissal of the plaintiff's case under this article. Thereafter, there was some confusion as to the handling of the motion. The court initially agreed to grant the motion in part and dismiss portions of the plaintiff's case, but ordered that the claimant receive therapy. Subsequently, the court maintained the order for therapy, but deferred ruling on the remainder of Mr. Pujoe's claim, stating: Therefore, any ruling concerning defendant's Motion for Involuntary Dismissal, claimant's request for indemnity benefits after June 10, 2003, claimants request for surgery, claimants request for treatment from Dr. Nanda, and defendant's request for reimbursement, are deferred until after claimant's receipt of intensive physical therapy, modalities, a therapeutic exercise program, with emphasis on the McKenzie Protocol, a home exercise program, pain management, epidural steroid injections, as needed, and a functional capacity evaluation. *311 The record reveals that Stowe did not object to this procedure, by which the WCJ decided the motion. Unquestionably, the termination of the case prior to presentation of the defendant's evidence was irregular.[5] Under the circumstances, however, we find that the error does not rise to the level of reversible error. All of the claimant's medical records were accepted into evidence at the start of the trial without objection by either side. The record does not reveal the reasons why Stowe did not insist upon presenting the testimony of their witnesses, but the OWC afforded them little opportunity to do so. It was apparent, however, from the beginning of the OWC's reasons for judgment after the argument on the motion that the court was disinclined to order surgery or further indemnity benefits on the evidence presented by the plaintiff. Even with the court's subsequent retraction of its earlier ruling, it declined to order anything more substantial than physical therapy and conservative treatment for Mr. Pujoe. Concerning the issue of Mr. Pujoe's diagnosis and treatment, the court was informed by his medical records and was notably concerned with those records offered by Stowe. Stowe did not fully succeed with their motion for involuntary dismissal; but, on the other hand, they were not faced with a substantial expense upon the rendition of the judgment. In the absence of a request to put on the witnesses, there is no showing from which this court can consider what Stowe's witnesses might have said. (That also would have been relevant to the court's ruling.) Both of Stowe's witnesses were supervisors; thus, it is highly unlikely that their testimony would have been probative of the diagnosis or treatment of Mr. Pujoe's medical problems, which was the focus of the OWC's concerns and ruling. Accordingly, for the reasons discussed herein, the error by the OWC does not rise to the level of a reversible error. In conjunction with any subsequent hearings in this matter, however, the OWC should ensure that both sides have the opportunity to fully present their case. Assignment Four: The Hearing Officer (sic) erred in considering issues and ruling on issues not raised by the pretrial scheduling order in violation of her own Hearing Officer (sic) Rules, and the Hearing Officer (sic) erred in ruling on these issues before all of the evidence was presented. LAC 40:I:6201 provides: Only those issues listed in the pretrial statements shall be litigated at trial. No new issues shall be raised except by written order of the judge for good cause or upon mutual agreement of the parties. The trial court's "scheduling conference order," dated June 7, 2004, listed "claimant's entitlement to medical treatment as recommended by Dr. Bulloch" as one of the issues of this case. This order was signed by the judge and, presumably, was served upon the parties. The only issue that was resolved at the hearing, however, was the claimant's entitlement to physical therapy. Since "other conservative management" was one of the items mentioned in Dr. Bulloch's report with reference to Dr. Rambach's report, we believe that Stowe had sufficient notice that the physical therapy issue could be contemplated at trial. Stowe complains in its brief that the trial court should not have considered the *312 issue of Mr. Pujoe's right to treatment with Dr. Nanda at the hearing. The OWC deferred consideration of that issue; however, it was not conclusively decided at the hearing. Further, per La. R.S. 23:1310.8(A)(1)[6], the jurisdiction of the OWC is ongoing, so the OWC may decide the claimant's entitlement to medical treatment, including treatment by any particular physician, in the future without regard to what was scheduled to be heard at an earlier hearing. This assignment is without merit. Assignment One: The Hearing Officer (sic) erred in failing to rule on the defendant's motion for an involuntary dismissal at the close of the plaintiff's case in chief. Assignment Two: The Hearing Officer (sic) erred in failing to grant the defendant's motion for an involuntary dismissal at the close of the plaintiff's case in chief. Despite the lack of a formal ruling, we consider the judge's ruling in this case to be, effectively, a denial of Stowe's motion for an involuntary dismissal because the court did not dismiss the claimant's case. The question, then, turns on whether the judge erred in refusing to dismiss Mr. Pujoe's case after he concluded putting on (his) evidence. The general rule is that the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. Thornton, supra. In the case sub judice, Dr. Bulloch recommended surgery to correct at least part of Mr. Pujoe's problem and, at minimum, did not object to physical therapy for his ancillary problems. Stowe insists that the OWC should have relied more heavily on the opinion of Dr. Douglas Brown, the appointed IME. La. R.S. 23:1123 provides: If any dispute arises as to the condition of the employee, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director. The medical examiner shall report his conclusions from the examination to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter. In McKinney v. Coleman, 36,958 (La.App. 2d Cir.3/14/03), 839 So.2d 1240, this court stated: Nevertheless, the opinion of the IME physician is not conclusive, and the WCJ must evaluate all of the evidence presented in making a decision as to the claimant's condition.... The significant weight given to the opinion of the IME physician can be lesser or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians' examinations and tests, and *313 any other relevant factors. (Emphasis ours.) Further, while this court has generally followed the aforementioned "treating physician rule," courts applying this doctrine have held that the treating physician's testimony is not irrebuttable, as the trier of fact is required to weigh the testimony of all of the medical witnesses. Thornton, supra. The inquiry in this case is whether, based on the totality of the record, the fact finder was manifestly erroneous in accepting the expert testimony presented by Mr. Pujoe over that presented by Stowe. The reports of Mr. Pujoe's treating physician recommended that he not return to work until recovered from surgery, while the report of the IME indicated that he was ready to return to work immediately, without surgery. This diametrically opposed evidence was evidently of little assistance to the OWC, who chose to rely on the recommendation of Dr. Rambach, a physician whose opinions the judge had trusted in the past to be accurate, coupled with the opportunity to hear the testimony of Mr. Pujoe concerning his back problems. On this record, we cannot say that the OWC was manifestly erroneous in taking the "middle road" by ordering therapy for Mr. Pujoe rather than either ordering surgery or terminating his right to medical treatment. Dr. Brown's report noted that Mr. Pujoe's problems may have been symptomatically aggravated by his accident; however, it did not explain his opinion that Mr. Pujoe was capable of returning to work given Mr. Pujoe's complaints. Both Dr. Brown and Dr. Rambach, however, recommended against surgery and Dr. Bulloch concurred in part with the recommendation for physical therapy. In summation, the OWC was faced with conflicting reports, some of which recommended against surgery and some of which recommended physical therapy; and, having had the opportunity to hear Mr. Pujoe's testimony, she chose therapy as the best course of treatment. That choice was perfectly reasonable under the circumstances, and we decline to overturn the judge's choice in that matter. CONCLUSION For the reasons set forth herein, the ruling of the OWC is affirmed at Stowe-Woodard's cost. WRIT GRANTED; RULING AFFIRMED. APPLICATION FOR REHEARING Before WILLIAMS, CARAWAY, PEATROSS, MOORE, and LOLLEY, JJ. Rehearing denied. NOTES [1] Stowe's compensation insurer, Liberty Mutual Insurance Company, did not file a motion for appeal. [2] At the time of the previous writ application, the record was incomplete. [3] Mr. Pujoe stated that he brought his MRI studies with him, but Dr. Brown refused to look at them; it is unknown whether Dr. Brown obtained the studies from another source. [4] Judges of the OWC were formerly called hearing officers, see Walker v. ConAgra Food Services, 28,205 (La.App. 2d Cir.4/3/96), 671 So.2d 1218, but are now called workers' compensation judges, per La. R.S. 23:1310.1. The "sic" referenced in this assignment of error is noted in each assignment of error in this case, see infra. [5] We note that, with regard to the trial court's credibility determination, the absence of testimonial evidence in opposition to the only witness is particularly troubling. [6] A. (1) The power and jurisdiction of the workers' compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, including the right to require physical examinations as provided for in R.S. 23:1123; however, upon petition filed by the employer or insurance carrier and the injured employee or other person entitled to compensation under the Worker's Compensation Act, a workers' compensation judge shall have jurisdiction to consider the proposition of whether or not a final settlement may be had between the parties presenting such petition, subject to the provisions of law relating to settlements in workers' compensation cases. (Emphasis ours.)

Affirmed as Modified and Memorandum Opinion filed August 4, 2009 Affirmed as Modified and Memorandum Opinion filed August 4, 2009.     In The   Fourteenth Court of Appeals _______________   NO. 14-08-00081-CV _______________   DANNY LANGHORNE, Appellant   V.   KAY M. MILLER, Appellee                                                                                                                                                 On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 851439                                                                                                                                                   M E M O R A N D U M   O P I N I O N   In this case involving storage of, and refusal to return, three aircraft, appellant, Danny Langhorne, challenges the trial court=s (1) findings in favor of appellee, Kay M. Miller, on her claim of conversion, (2) award of conversion damages to Miller, and (3) take-nothing judgment against Langhorne on his claim for quantum meruit.  We modify the judgment to order that Miller recover nothing on her claim for conversion of one of the aircraft, modify the total award of damages and prejudgment interest accordingly, and affirm the judgment as modified.[1] I.  Factual and Procedural Background In 1996, Miller was involved in a hostile divorce from Bufort Peters.  Langhorne had  known Peters for ten to fifteen years, and Peters was one of Langhorne=s closest friends.  According to Langhorne, Peters brought Langhorne three aircraft in the summer of 1996.  The aircraft were Abasket cases,@ meaning the planes were missing parts and were not flyable.  Langhorne and Peters orally agreed Langhorne would store the planes, and A[i]n lieu of money, [Peters] would do annuals on [Langhorne=s] aircraft.@  Peters died in November 1996, before the Miller-Peters divorce could become final.  In December 1996, Langhorne appeared in probate court as a witness to the signing of Peters=s will.  In June 2001, the probate court rendered an agreed final judgment between Miller and the independent administrator of Peters=s estate.  Under the judgment, Miller was awarded  title to four aircraft, including a Taylorcraft (L-2) DCO-65, a Fairchild 24R-46, and a Piper J3-C-65 Cub, all originally manufactured between 1944 and 1946.  The court also ordered that each party would assume and pay any debt owed on the aircraft awarded it, and the parties represented the only indebtedness on the planes awarded to Miller was a Northwest Bank lien on the Piper. Someone had told Miller that Langhorne might have the Taylorcraft, Fairchild, and Piper so; in June or July 2001, Miller went to Langhorne=s hangar to claim the three planes.  According to Langhorne, he told Miller she would have to pay to get the planes.[2]  According to Miller, Langhorne was rude, denied he had the planes, and said nothing about a fee.  Langhorne admitted he had participated in filing criminal trespass charges against Miller. In June 2005, Miller received a letter from Langhorne=s attorney demanding payment.  According to Miller, that was the first time she knew where the planes were.  In November 2005, Langhorne sued Miller for breach of contract.  He subsequently amended his petition to include a claim for quantum meruit.  Miller counterclaimed for conversion. Trial was to the court.  Langhorne abandoned his breach-of-contract claim and proceeded only on his claim for quantum meruit. The trial court rendered judgment that Langhorne take nothing on his quantum meruit claim.  The court found in favor of Miller on her conversion claim and awarded her $3,000 for conversion of the Piper, $8,000 for conversion of the Fairchild, and $30,000 for conversion of the Taylorcraft, plus pre-judgment interest of $11,603.56 and post-judgment interest at the rate of 8.25 percent from the date of judgment until paid.  Langhorne filed a motion for new trial, and the trial court filed findings of fact and conclusions of law.  Langhorne=s motion for new trial was overruled by operation of law. II.  Standard of Review In three issues, Langhorne argues the evidence was legally insufficient to support the trial court=s findings (1) in favor of Miller on her conversion claim, (2) on the amount of conversion damages, and (3) against Langhorne on his quantum meruit claim.[3]  He requests this court to render judgment that Miller take nothing and that he recover unpaid storage fees and attorney=s fees. In reviewing a trial court=s findings for legal sufficiency of the evidence, we apply the same standards we apply in reviewing evidence supporting a jury=s answer.  Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).  Findings of fact in a bench trial have the same force and dignity as a jury=s verdict on jury questions.   Arrellano v. State Farm Fire & Cas. Co., 191 S.W.3d 852, 855B56 (Tex. App.CHouston [14th Dist.] 2006, no pet.).  However, the trial court=s findings are not conclusive when, as here, there is a complete reporter=s record.  Id. at 856. When reviewing legal sufficiency of the evidence, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it.  City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).  We credit favorable evidence if a reasonable fact finder could, and we disregard contrary evidence unless a reasonable fact finder could not.  Id. at 827.  The evidence is legally sufficient if it would enable fair-minded people to reach the finding under review.  Id. We will sustain a no‑evidence point only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact.  See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003).  An appellant attacking the legal sufficiency of evidence supporting an adverse finding on which he had the burden of proof must show on appeal that a contrary finding was established as a matter of law.  See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). III.  Discussion A.  Issue One: Finding in Favor of Miller on Conversion In issue one, Langhorne argues the trial court erred in awarding any conversion damages to Miller.  To establish her claim for conversion, Miller had to prove (1) she owned, had legal possession of, or was entitled to, possession of the aircraft,  (2) Langhorne assumed and exercised dominion and control over the aircraft in an unlawful and unauthorized manner, to the exclusion of and inconsistent with Miller=s rights,  and (3) Langhorne refused Miller=s demand for return of the aircraft.  See Hunt v. Baldwin, 68 S.W.3d 117, 131 (Tex. App.CHouston [14th Dist.] 2001, no pet.). Langhorne argues there is no evidence of the second element because he had a valid aircraft repair and maintenance lien under Texas Property Code sections 70.301 and 70.302.  Section 70.301 provides: (a) A person who stores, fuels, repairs, or performs maintenance work on an aircraft has a lien on the aircraft for: (1) the amount due under a contract for the storage, fuel, repairs, or maintenance work;  or (2) if no amount is specified by contract, the reasonable and usual compensation for the storage, fuel, repairs, or maintenance work. (b) This subchapter applies to a contract for storage only if it is: (1) written;  or (2) oral and provides for a storage period of at least 30 days.   Tex. Prop. Code Ann. ' 70.301 (Vernon 2007).[4] Section 70.302 further provides: (a) A holder of a lien under this subchapter may retain possession of the aircraft subject to the lien until the amount due is paid. (b) Except as provided by Subsection (c), if the holder of a lien under this subchapter relinquishes possession of the aircraft before the amount due is paid, the person may retake possession of the aircraft as provided by Section 9.609, Business & Commerce Code. (c) The holder of a lien under this subchapter may not retake possession of the aircraft from a bona fide purchaser for value who purchases the aircraft without knowledge of the lien before the date the lien is recorded under Section 70.303.   Id. ' 70.302. To bring his situation under the provisions of sections 70.301 and 70.302, Langhorne relies on an oral agreement with Peters, made five to six months before Peters=s death, to store Peters=s aircraft.  There was evidence, however, showing (1) Langhorne=s oral agreement with Peters was storage in exchange, not for a fee, but for Peters=s performing Aannuals@ on Langhorne=s aircraft, (2) Langhorne, despite appearing at the probate proceedings, never filed a claim against Peters=s estate, (3) the parties to the agreed final judgment in the probate proceedings represented that the only indebtedness on the aircraft was a Northwest Bank lien, (4) Langhorne had no agreement with Miller to store the aircraft, (5) Langhorne made no attempt to collect the purported fees between sometime in 2000 and June 2005, (6) Miller received no invoices from Langhorne, and (7) if Langhorne did send invoices, he sent them to an address other than the one shown on the planes= FAA registrations. There was also Miller=s testimony that, in June or July 2001, shortly after entry of the agreed final judgment, Langhorne denied having the aircraft.  If Langhorne had relinquished possession of the aircraft during that period of time, and therefore was telling Miller the truth, he would have had to have regained possession under the procedure set forth in Property Code section 70.302(b) and the Business & Commerce Code to be lawfully in possession of the aircraft.  See Tex. Prop. Code Ann. ' 70.302(b).  If, however, Langhorne in fact had possession of the aircraft when he spoke with Miller, then Langhorne lied to Miller.[5]  Either interpretation, along with the other evidence set forth above, supports a finding that Langhorne assumed and exercised dominion and control over the aircraft in an unlawful and unauthorized manner to the exclusion of, and inconsistent with, Miller=s rights.  See Hunt, 68 S.W.3d at 131. The evidence was legally sufficient to support the trial court=s finding in favor of Miller on her conversion claim.  Accordingly, we overrule Langhorne=s first issue. B.  Issue Two: Findings on Conversion Damages In issue two, Langhorne argues the conversion damages should be reduced to zero because there is no evidence to support the trial court=s findings of $3,000 for conversion of Piper, $8,000 for conversion of the Fairchild, and $30,000 for conversion of the Taylorcraft.  Langhorne contends the damages evidence was incompetent, speculative, and not based on fair market value.  Miller relies on her own testimony and on documentary evidence introduced by Langhorne. A plaintiff must prove damages before a court may allow recovery for conversion.  United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997).  The usual measure of damages for conversion is the fair market value of the property at the time and place of conversion.  See id. at 147B48.  When converted property has no readily ascertainable fair market value, however, the measure of damages is the actual value of the property to the owner at the time of its loss.  Burns v. Rochon, 190 S.W.3d 263, 270 (Tex. App.CHouston [1st Dist.] 2006, no pet.) (citing Crisp v. Sec. Nat=l Ins. Co., 369 S.W.2d 326 (Tex. 1963)).[6]  Damages are limited to the amount necessary to compensate the plaintiff for the actual losses or injuries sustained as a natural and proximate result of the defendant=s conversion.  Deaton, 939 S.W.2d at 148.  A conversion should not unjustly enrich the wrongdoer or the complaining party.  Id. In sum, no absolutely rigid rule applies to every state of facts in conversion cases.  Minter v. Sparks, 246 S.W.2d 954, 957 (Tex. Civ. App.CDallas 1951, writ ref=d n.r.e.).  Instead, the appropriate result is compensation for the injury.  Id.  ANo matter what measure of damages is employed in establishing the value of the converted property, >it is well settled that the owner of property can testify as to his opinion regarding the value of his own property . . . even if the owner=s testimony is halting and indefinite it nonetheless will be sufficient to sustain a verdict when there is no controverting evidence.=@  Burns, 190 S.W.3d at 270B71 (quoting Espinosa v. Schomberg, 601 S.W.2d 161, 164 (Tex. Civ. App.CWaco 1980, writ ref=d n.r.e.)).  In the present case, Miller testified that, in 1996, she and Peters had their business and home in an airplane hangar.  The airplanes in question had been at Miller=s hangar/residence.  Both Miller and Peters were involved in the restoration of aircraft.  At one point, Peters was working at NASA, and Miller was doing all of the restoring at the hangar.  Miller testified that, as an owner and operator of the three airplanes, she was familiar with their history.  Miller opined the Piper was worth $30,000; the Fairchild, around $20,000; and the Taylorcraft, $30,000 to $35,000. Miller nevertheless admitted she had no knowledge of the condition of the planes when they arrived at Langhorne=s hangar in 1996.  Thus, even though it is the testimony of an owner, Miller=s testimony by itself is no evidence of the condition or value of the planes at the time of conversion, i.e., when Langhorne subsequently refused to return them in 2001.  See Varel Mfg. Co. v. Acetylene Oxygen Co., 990 S.W.2d 486, 499 (Tex. App.CCorpus Christi 1999, no pet.) (holding appellant prevailed on no evidence point when appellee=s witness=s testimony showed value he placed on converted property at time of trial was higher than its value in 1995, when conversion occurred, and accordingly there was no evidence of market value at time of conversion). Langhorne, however, introduced into evidence a document Miller signed close to the time Peters took the planes to Langhorne.  In that document, Miller and Peters valued the Piper at $3,000 and the Fairchild at $8,000.[7] Langhorne also testified he was not aware of any decay or vandalism, and was aware of only a little deterioration due to the passage of time.  Thus, it is reasonable to infer that, when Miller was denied possession of the Piper and the Fairchild in June or July of 2001, the aircraft would have had the same values as they had when Peters took them to Langhorne=s hangar in 1996, those values being $3,000 and $8,000, respectively, as evidenced by the contemporaneous document.  Langhorne=s own evidence therefore supports the trial court=s findings of damages of $3,000 and $8,000, respectively, for conversion of the Piper and the Fairchild. In contrast, the only evidence supporting a value of $30,000 for the Taylorcraft is Miller=s testimony.[8]  As discussed above, Miller had no knowledge of the Taylorcraft=s condition when it arrived at Langhorne=s hangar and her testimony therefore does not support an inference of its subsequent value at the time of conversion.[9] For the foregoing reasons, we overrule Langhorne=s second issue as it relates to the award of damages for the Fairchild and the Piper, but sustain his second issue as it relates to the award of damages for the Taylorcraft.  We therefore modify the judgment to order that Miller recover nothing in damages for conversion of the Taylorcraft, and we adjust the damages and prejudgment interest accordingly. C.  Issue Three:  Quantum Meruit In issue three, Langhorne argues the trial court Aerred in its decision that [Langhorne] take nothing against [Miller] on his claim of quantum meruit asserted against [Miller].@  To prove quantum meruit against Miller, Langhorne had to show (1) he rendered valuable services or furnished materials;  (2) for Miller;  (3) which services and materials Miller accepted, used, and enjoyed;  (4) under such circumstances as reasonably notified Miller that Langhorne, in performing such services, was expecting Miller to pay him.  See Wohlfahrt v. Holloway, 172 S.W.3d 630, 634 (Tex. App.CHouston [14th Dist.] 2005, pet. denied).  Langhorne=s claim fails for several reasons.  First, Langhorne=s oral agreement was with Peters, not Miller.[10]  Second, the existence of Langhorne=s express contract with Peters for the same services for which he now seeks reimbursement from Miller defeats his claim against Miller for quantum meruit.  See Econ. Forms Corp. v. Williams Bros. Constr.  Co., 754 S.W.2d 451, 458 (Tex. App.CHouston [14th Dist.] 1988, no writ).[11]  Third, the trial court found that, no later than July 31, 2001, a date shortly after the probate court awarded Miller the aircraft, Langhorne denied having them.  Finally, the trial court found Miller did not know Langhorne had possession of her planes or expected compensation for their storage until on or after June 13, 2005, i.e., when Langhorne=s attorney sent the demand letter. The evidence was legally insufficient to establish Langhorne=s quantum meruit claim against Miller.  The trial court correctly rendered a take-nothing judgment against him.  Accordingly, we overrule Langhorne=s third issue. IV.  Conclusion Having sustained Langhorne=s second issue as it relates to damages awarded to Miller for conversion of the Taylorcraft airplane, we modify the judgment to order that Miller recover nothing on her claim for conversion of the Taylorcraft, reduce the total amount of damages to $11,000, and reduce the  award of prejudgment interest to $3,113.15.  Having  found no error in the remainder of the judgment and having overruled Langhorne=s remaining issues, we affirm the judgment as modified.         /s/        Charles W. Seymore Justice     Panel consists of Justices Seymore, Brown, and Sullivan. [1]  Because all dispositive issues of law are settled, we issue this memorandum opinion.  See Tex. R. App. P. 47.4. [2]  Langhorne also claimed that, starting in September 1996, he sent monthly invoices to Miller at a Hockley Post Office address.  He did not have copies of the invoices, the last one of which he purportedly sent sometime in 2000. [3]  Langhorne briefly sets forth the standard of review for factual sufficiency, but he frames his arguments as no evidence or legal insufficiency points and requests only rendition, rather than remand.  See  Horrocks v. Tex. Dept. of Transp., 852 S.W.2d 498, 499 (Tex. 1993) (per curiam) (AOrdinarily, an appellate court should render judgment after sustaining a complaint as to the legal sufficiency of the evidence.@).  Accordingly, we interpret Langhorne as arguing the evidence was legally insufficient, rather than legally and factually insufficient. [4]  Citation is to the current statutes.  During the pendency of the events underlying this case, the legislature amended sections 70.301 and 70.302 by adding provisions not relevant to the disposition of this case.  See Act of May 25, 2001, 77th Leg., R.S., ch. 1171 ' 1, 2001 Tex. Gen. Laws 2637, 2637 (amending section 70.301); Act of May 17, 1999, 76 Leg., R.S., ch. 414, '' 2.41, 3.01, 1999 Tex. Gen. Laws 2639, 2746, 2747 (amending section 70.302, effective July 1, 2001). [5]  The trial court found Langhorne Adenied directly to Kay Miller that he had possession of the planes . . . on a date no later than July 21, 2001 . . . .@  Langhorne does not dispute this finding. [6]  AFair market value@ is the price the property would bring when offered for sale by one who desires, but is not obliged to sell, and bought by one who is under no necessity of buying it.  City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 815 (1954).  AActual value@ applies to goods possessed for the owner=s comfort and well‑being, rather than for resale.  See Crisp v. Sec. Nat=l Ins. Co., 369 S.W.2d 326, 329 (Tex. 1963).  AThe measure of damages that should be applied for loss of this kind of property is actual value of the articles to the owner in the condition they were in at the time of the loss, without resort to market value, and excluding any fanciful or sentimental considerations.@  Wright v. Gernandt, 559 S.W.2d 864, 870 (Tex. Civ. App.CCorpus Christi 1977, no writ) (citing Crisp, 369 S.W.2d at 328B29)). [7]  Miller testified she signed the document while she and Peters were separated and in the process of divorcing.  The valuations would therefore have been generated close to the time Peters took the planes to Langhorne=s hangar.   The document was admitted into evidence as Plaintiff=s Exhibit 10, but it is not part of the record on appeal.  We therefore cannot consider the document itself even though Miller has included it in the appendix to her brief.  See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 n.2 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (A[W]e cannot consider documents attached as appendices to briefs and must consider a case based upon the record filed.@).  Accordingly, we have relied only on  testimony about the document. [8]  Miller asks this court to consider her verified pleadings as evidence.  We decline to do so.  See Love v. State Bar of Tex., 982 S.W.2d 939, 943 (Tex. App.CHouston [1st Dist.] 1998, no pet.)  (APleadings, even those that are verified, are not evidence of the truth of their allegations.@). [9]  Miller testified she was flying Athe L-4@ shortly before Peters took the planes to Langhorne.  From the descriptions in the agreed final judgment in the divorce, however, the L-4 would be the Piper, and not the Taylorcraft. [10]  It is undisputed Langhorne did not file a claim against Peters=s estate.  There is also no indication he sued the independent administrator of the estate. [11]  Langhorne does not argue Miller was a third party beneficiary to his contract with Peters.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-7318 In Re: ERNEST LEE COLEY, Petitioner. On Petition for Writ of Mandamus. Submitted: November 29, 2001 Decided: December 10, 2001 Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges. Petition denied by unpublished per curiam opinion. Ernest Lee Coley, Petitioner Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Ernest Lee Coley has filed a petition for a writ of mandamus from this court seeking to compel Respondents to conduct a parole revocation hearing based on a parole violation warrant issued against him by the District of Columbia Parole Board, and to review the detainer currently lodged against him. Mandamus is a drastic remedy to be used only in extraordinary circumstances. Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976). Mandamus re- lief is only available when there are no other means by which the relief sought could be granted, In re Beard, 811 F.2d 818, 826 (4th Cir. 1987), and may not be used as a substitute for appeal. In re Catawba Indian Tribe, 973 F.2d 1133, 1135 (4th Cir. 1992). The party seeking mandamus relief carries the heavy burden of showing that he has no other adequate means to attain the relief he desires and that his entitlement to such relief is clear and indisputable. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). Coley has not made such a showing. Accordingly, we deny Coley’s motion to proceed in forma pauperis, his petition for mandamus relief, and his motion to compel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 2 

67 F.3d 460 UNITED STATES of America, Appellee,v.Stewart J. LEONARD, Sr., Defendant-Appellant. No. 24, Docket 94-1636. United States Court of Appeals,Second Circuit. Argued Sept. 7, 1995.Decided Oct. 4, 1995. Barbara Bailey Jongbloed, Assistant United States Attorney, New Haven, Connecticut (Christopher F. Droney, United States Attorney for the District of Connecticut, New Haven, Connecticut, Kari A. Pedersen, Assistant United States Attorney, Bridgeport, Connecticut, on the brief), for Appellee. Kurt F. Zimmermann, Silverstein & Osach, New Haven, Connecticut (Nathan M. Silverstein, Silverstein & Osach, New Haven, Connecticut, on the brief), for Defendant-Appellant. Before: KEARSE, JACOBS, and LEVAL, Circuit Judges. PER CURIAM: 1 Defendant Stewart J. Leonard, Sr., whose original sentence, entered following his plea of guilty to conspiracy to defraud the United States, in violation of 18 U.S.C. Sec. 371, was vacated by this Court in United States v. Leonard, 37 F.3d 32 (2d Cir.1994) ("Leonard I "), appeals from a judgment of the United States District Court for the District of Connecticut, Peter C. Dorsey, Judge, entered on remand, sentencing Leonard to 52 months' imprisonment, to be followed by 36 months' supervised release, and imposing a fine of $650,000, plus costs of incarceration and supervision in the amount of $96,850.80. On appeal, Leonard challenges the fine, contending principally that it is an impermissible departure from the fine schedule prescribed in the federal Sentencing Guidelines ("Guidelines"). We disagree and affirm the judgment. 2 The background of this prosecution and the principles governing upward departures from the Guidelines are set forth in detail in Leonard I, familiarity with which is assumed. In its original judgment, the district court sentenced Leonard to 52 months' imprisonment, to be followed by 36 months' supervised release, and imposed a fine of $850,000, plus costs of incarceration and supervision in the amount of $96,850.80. The court cited six factors in support of its decision to depart. In Leonard I, this Court ruled the departure inappropriate because the factors cited by the district court were "of a kind" already considered by the Sentencing Commission in formulating the Guidelines, and because the district court had not determined that the factors were present "to a degree" not adequately considered by the Commission. 37 F.3d at 37 (internal quotation marks omitted). We vacated the sentence and remanded for resentencing; we noted that the district court was free to consider on remand whether the factors on which it had relied were present to a degree not adequately considered by the Commission. See id. 3 On remand, the district court imposed a sentence identical to its original sentence, except that, partly in recognition of a divestiture the court had not previously considered, it imposed a fine of $650,000 rather than $850,000. The range of fines prescribed for Leonard by Guidelines Sec. 5E1.2(c) was $10,000 to $100,000. The imposition of a $650,000 fine was thus a departure. In support of its decision, the court cited the alternative-fine provision in the first paragraph of Application Note 4 to Guidelines Sec. 5E1.2 (Hearing Transcript, October 26, 1994 ("Tr."), 52-53) and stated that the departure was justified under that provision 4 because the gain to you from the activity was vastly greater than twice the maximum provided in the guidelines--I happened just simply to find that the maximums provided in the guidelines do not adequately reflect the appropriate sentence as far as the possibility of imposing a fine is concerned, although I do temper the question of the imposition of a fine by the fact that here the Government has or is being made whole. 5 (Tr. 53.) In addition, the court stated: 6 I do think also to be considered is the fact that under Rule or Section 5(K)2.0, accepting as I am the finding of the Court of Appeals that the six factors that I articulated the first time you were sentenced had previously been considered in the formulation of the guidelines, I am convinced in two respects that both individually and cumulatively as present in this case the facts have two significances. One is I don't think they have been adequately considered by the Commission if they were, in fact, considered as the Court of Appeals has dictated. 7 Secondly, I am convinced and I find that the factors are present to a degree that is substantially greater than would ordinarily be involved in this type of an offense. 8 (Tr. 53.) 9 Leonard argues (1) that the departure pursuant to Sec. 5E1.2 Application Note 4 was improper, and (2) that the court's reliance on the original six factors cannot be sustained because the court did not articulate in what way the Commission's consideration of those factors was inadequate. Though the second contention may have some merit, given the conclusory nature of the district court's statements, we need not address it because the court's reliance on Sec. 5E1.2 Application Note 4, a Guidelines provision not mentioned by the court in imposing its original sentence, was adequate to justify the departure. See, e.g., Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 1120, 117 L.Ed.2d 341 (1992) (if sentencing court has relied on more than one ground and one ground is erroneous, a remand is required only "if the sentence would have been different but for the district court's error"). 10 The alternative-fine provision referred to by the district court on remand states as follows: 11 The Commission envisions that for most defendants, the maximum of the guideline fine range from subsection (c) will be at least twice the amount of gain or loss resulting from the offense. Where, however, two times either the amount of gain to the defendant or the amount of loss caused by the offense exceeds the maximum of the fine guideline, an upward departure from the fine guideline may be warranted. 12 Moreover, where a sentence within the applicable fine guideline range would not be sufficient to ensure both the disgorgement of any gain from the offense that otherwise would not be disgorged (e.g., by restitution or forfeiture) and an adequate punitive fine, an upward departure from the fine guideline range may be warranted. 13 Guidelines Sec. 5E1.2 Application Note 4. It is undisputed that the tax loss in this case was $6.7 million. Twice the amount of that loss is $13.4 million. Plainly, a fine of $100,000, the top of the Guideline fine range applicable to Leonard, did not meet the Commission's expectation that a fine within that range would be "at least twice the amount of gain or loss resulting from the offense." The first paragraph of Guidelines Sec. 5E1.2 Application Note 4 thus authorized the district court to depart from the Guidelines fine range. 14 Leonard argues that the second paragraph of Application Note 4, which authorizes a departure if the prescribed fine range would not be sufficient to ensure both the disgorgement of any gain from the offense that would not otherwise be disgorged and an adequate punitive fine, indicates that the court could not properly depart pursuant to that Note because Leonard had already entered into a civil settlement with the Internal Revenue Service ("IRS") requiring him to pay the IRS $15 million. He describes that sum as representing $5 million in back taxes, $5 million in interest, and $5 million in tax penalties, and he argues that a departure was therefore not necessary to ensure either the disgorgement of his gains or the imposition of punitive measures. We reject his interpretation of the second paragraph of Application Note 4 for several reasons. First, that paragraph begins with the word "Moreover," suggesting that the Commission sought to state an additional basis for departure, not to narrow the terms of the departure authorized in the first paragraph. Second, as a settlement, the required payment of $5 million as back taxes may or may not represent a disgorgement of Leonard's entire unlawful gain. Leonard concedes a government tax loss of $6.7 million. Third, the payment of back taxes and interest is a sanction that is more compensatory than punitive; and civil tax penalties owing under Title 26 irrespective of the existence of a criminal prosecution are not a substitute for the punitive fines required by Title 18 in the event of such a prosecution and conviction. The Guidelines instruct that "[t]he amount of the fine should always be sufficient to ensure that the fine, taken together with other sanctions imposed, is punitive." Guidelines Sec. 5E1.2(e). We conclude that the second paragraph of Application Note 4 to Sec. 5E1.2 afforded Leonard no relief from the departure authorized by the first paragraph. 15 Finally, Leonard contends that even if some departure was authorized, the fact that he has already paid the IRS $15 million made the imposition of an additional fine $550,000 above the Guidelines range unreasonable. We disagree. The first paragraph of Application Note 4 states that "an upward departure ... may be warranted" where "two times either the amount of gain ... or ... loss ... exceeds the maximum of the fine guideline." In view of the admitted $6.7 million tax loss, the Commission appears to envision a possible fine of $13.4 million or more. Both the total fine of $650,000 and the $550,000 component constituting the departure were small when compared with these figures. We cannot conclude that the departure was unreasonable. 16 We have considered all of Leonard's contentions on this appeal and have found in them no basis for reversal. The judgment of the district court is affirmed.

66 F.3d 310 Burris Foods, Inc.v.Michelin Tire Corp. NO. 94-7637 United States Court of Appeals,Third Circuit. Aug 31, 1995 Appeal From: D.Del., No. 92-cv-00668 1 REVERSED.

290 F.Supp. 785 (1968) Harold R. CRANSTON, Dale R. French, Helmer A. Carlson and David B. Phillips, Individually and on Behalf of all Other Persons in their Class who are Similarly Situated and Affected, Plaintiffs, v. Orville L. FREEMAN, Secretary of Agriculture of the United States, Defendant, and Albert Guilian, Grover C. Atwood, and A. J. Malnati, Individually and on Behalf of all Other Persons in their Class who are Similarly Situated and Affected, Defendant-Interveners. Civ. A. No. 67-CV-38. United States District Court N. D. New York. August 2, 1968. *786 John P. Weatherwax, Troy, N. Y. (James M. Strang, Troy, N. Y., of counsel), for plaintiffs. J. C. Krause and John G. Liebert, Attys., Dept. of Agriculture, Washington, D. C., Jane M. Friedman, Irwin Goldbloom, Harland F. Leathers, Attys., Dept. of Justice, Washington, D. C., Justin J. Mahoney, U. S. Atty., and Frank A. Dziduch, Asst. U. S. Atty., Albany, N. Y., for defendant Freeman. Frederick U. Conard, Jr., Don C. Polley, and Theodore Space, of Shipman & Goodwin, Hartford, Conn., for defendant-interveners. MEMORANDUM OF DECISION AFTER TRIAL TIMBERS, District Judge.[*] QUESTION PRESENTED This action was brought by six dairy farmers residing in Rensselaer County, *787 New York, suing for themselves individually and on behalf of all other persons in their class similarly situated and affected.[1] They seek declaratory and injunctive relief against the Secretary of Agriculture. Three other dairy farmers residing in Litchfield County, Connecticut, and Berkshire County, Massachusetts, for themselves individually and on behalf of all other persons in their class similarly situated and affected, were permitted to intervene as defendants. The essential questions presented are: (1) whether the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 601, et seq., authorizes the Secretary of Agriculture to include in the Connecticut Milk Marketing Order, 7 C.F.R. § 1015, et seq. (1968), certain farm location differentials, 7 C.F.R. § 1015.72 (1968), which have been in effect since 1959; (2) whether the farm location differentials are unconstitutionally discriminatory; and (3) whether there is substantial evidence in the administrative record to support the Secretary's inclusion of these differentials in the Connecticut Milk Marketing Order. After an eleven day trial at Albany, the Court holds that the Act does authorize the farm location differentials; that such differentials are not unconstitutionally discriminatory; and that there is substantial evidence in the administrative record to justify inclusion of these differentials in the Connecticut Milk Marketing Order. Accordingly, a permanent injunction enjoining the Secretary of Agriculture from administering the Connecticut Milk Marketing Order in such a way as to give effect to the farm location differentials is denied. JURISDICTION AND VENUE Jurisdiction is founded upon 28 U.S.C. § 1331(a), 28 U.S.C. § 1337, 28 U.S.C. §§ 2201-02, 5 U.S.C. §§ 701-06 and 7 U.S.C. § 601, et seq. Venue is properly laid in this District pursuant to 28 U.S.C. § 1391(e). PROPRIETY OF CLASS ACTION AND CLASS ACTION DEFENSE; ADVERSARY NATURE OF PROCEEDINGS Pursuant to Rule 23(c)(1), Fed.R. Civ.P., the Court on October 20, 1967, after hearing evidence, entered two orders: one permitting the named plaintiffs to maintain the instant action as a class action and the other permitting the named defendant-interveners to maintain a class action defense. With respect to the named plaintiffs, the Court determined, pursuant to Rule 23(a) and (b)(1)(B), Fed.R.Civ.P., that they may properly represent the interests of those producers producing milk on their respective farms and selling such milk to handlers operating under the order regulating the handling of milk in the Connecticut marketing area, 7 C.F.R. § 1015, et seq. (1968), where the farms of such producers are located outside the area described in 7 C.F.R. § 1015.72(a) (1968) (in short, those who do not qualify for the 46¢ differential). With respect to the three named defendant-interveners, the Court likewise determined, pursuant to Rule 23(a) and (b) (1) (B), Fed.R.Civ.P., that they may properly represent the interests of those producers producing milk on their respective farms and selling such milk to handlers operating under the order regulating the handling of milk in the Connecticut marketing area, 7 C.F.R. § 1015, et seq. (1968), where the farms of such producers are located within the area described in 7 C.F.R. § 1015.72(a) (1968) (in short, those who do qualify for the 46¢ differential). In view of the recent decision of the United States Court of Appeals for this Circuit in Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2 Cir. 1968), the Court on April 22, 1968 directed that all members of plaintiffs' and defendant-interveners' classes be given formal notice of the pendency of the action and an opportunity *788 to be heard with respect to the continued maintenance of the action as a class action. The notices were sent by April 24, 1968 and made returnable on May 15, 1968. Prior to the Court's order of April 22, 1968, Kenneth Hewitt and Leonard Duncan, members of plaintiffs' class, filed two papers entitled "Motion For Leave To Intervene Under Rule 24 or to Otherwise Enter Action Under Rule 23 for Purpose of Taking Depositions, to Move Dismissal of Suit and for Other Related Relief," and "Answer of Interveners and Motion to Dismiss Action, for Disposition of Escrow Fund and Other Relief." Since these papers made allegations of collusion which if true would not only have merited reversal of the class action orders but dismissal of the action, a hearing was similarly directed on May 15, 1968. The Court thereafter held exhaustive hearings on May 15, May 27, and June 10, 1968, at which hearings all questions relating to the propriety of the maintenance of this action as a class action and all questions relating to Hewitt's and Duncan's claim of collusion were explored. Every interested person was given an opportunity to be heard and to present evidence through the testimony of witnesses and by means of exhibits. The complete record of all prior proceedings in this case was available for inspection by all interested persons at the Albany seat of Court from May 9, 1968.[2] The evidence presented not only does not in any way justify dismissal of the action but it clearly merits reaffirmation of the Court's orders of October 20, 1967 permitting plaintiffs and defendant-interveners to maintain this action as a class action pursuant to Rule 23(a) and (b)(1)(B), Fed.R.Civ.P. Plaintiffs' class of approximately 250 persons and defendant-interveners' class of approximately 3000 are without any doubt "so numerous that joinder of all members is impracticable." No one has disputed, nor can anyone dispute, that there are questions of both law and fact common to the classes and that the claims of plaintiffs and defenses of defendant-interveners are typical of the claims and defenses of their classes. Furthermore, as a practical matter, the adjudication of the differentials' validity with respect to individual members of the classes would be dispositive as to all class members because the differentials cannot be enforced or withdrawn piecemeal. The only issue which merits discussion is the charge of collusion raised by Hewitt and Duncan. Also involved here is the issue of fairness and adequacy of representation with respect to plaintiffs' maintenance of this action as a class action. Basically, Hewitt and Duncan claim that the Consolidated Milk Producers' Association (CMPA), formerly the Connecticut Milk Producers' Association, solicited plaintiffs to bring this action in the Northern District of New York, and through payment of plaintiffs' counsel fees and other means have acted to control this action for the benefit of defendant-interveners' class who constitute the majority of the Association's members. There is no question about the fact that CMPA as an organization is interested in the continuation of farm location differentials. The vast majority of its members receive these differentials and feel that it will be to their benefit to continue to receive them. Defendant-interveners are members of CMPA and their *789 counsel also serves as counsel to CMPA. Furthermore, CMPA readily admits that after the farm location differentials in the neighboring New York-New Jersey Milk Marketing Order were held invalid by the Court of Appeals for the District of Columbia in 1966, the Association was troubled by the consequential uncertainty surrounding the validity of the Connecticut differentials. Part of this concern derived from the fact that a minority of its members, including all the named plaintiffs, did not receive the differentials and had vocally expressed their unhappiness with the situation. In fact, as established by the credible evidence, plaintiff Cranston had discussed the institution of a legal action to challenge the differentials with his long-time friend and neighbor, Attorney John P. Weatherwax, both before and after the decision in the District of Columbia. It was only after Attorney Weatherwax had agreed to institute such an action challenging the differentials, that Cranston was contacted on January 27, 1967 by a CMPA official who had heard rumors that Cranston and others intended to commence a suit. This contact was the result of a decision on January 25, 1968 by CMPA to aid any members undertaking either to challenge or defend the differentials by reimbursing such members for reasonable expenses and attorney fees. The CMPA official explained the policy and mentioned the name of a possible attorney, but Cranston said that he already had his own. The official told Cranston that he would like to check on his reputation and see what kind of an attorney he was and if he was capable, because the Association was concerned about having good attorneys on both sides of the question. Aside from the offer to reimburse for reasonable expenses and this conversation, there was a subsequent meeting between CMPA officials, plaintiffs and Attorney Weatherwax. There is nothing, however, to suggest that CMPA in any way acted improperly. But most importantly, there is not an iota of credible evidence that CMPA, defendant-interveners, or defendant, acted, attempted to act, or even desired to act, to control plaintiffs' conduct in these proceedings. On the contrary, the record clearly demonstrates that plaintiffs for a number of years have been keenly interested in the abolition of the differentials, that they are just as keenly interested at this time, and that their counsel, Attorney Weatherwax, at all times has conscientiously, expertly and with the highest professional sense of duty to plaintiffs endeavored to represent their interests. Attorney Weatherwax has forthrightly, earnestly, and unceasingly prosecuted this lawsuit to enjoin the application of the differentials. He has conducted his case as any gentleman and lawyer should and would and has never conceded a point nor failed to present a plausible argument. The Court is fully cognizant that the payment by one side in an action of an opposing counsel's legal fees is a red flag as to collusion. See United States v. Johnson, 319 U.S. 302 (1943). But in the instant situation, the Association is in a unique position—it is a democratic institution composed of members on both sides of the question and it is duty-bound to serve the interests of all its members. Certainly under these circumstances, the Association's offer to reimburse any of its members for expenses does not give rise to collusion per se. Rather, the question must be whether the Association has in any way acted to control plaintiffs' conduct of the law suit. Cf. San Francisco v. Boyd, 22 Cal.2d 685, 140 P.2d 666 (1943). If the Court thought that there was even the slightest attempt to exert such control, it would not only reverse its class action orders but it would dismiss the entire action. The Court, however, is thoroughly convinced that no such attempt was made, that the proceedings have been of an adversary nature on the highest level, and that plaintiffs have fairly and more than adequately represented the other members of their class. The Court therefore not only refuses to dismiss this action but *790 reaffirms its decision to permit it to proceed as a class action.[3] THE AGRICULTURAL MARKETING AGREEMENT ACT OF 1937 AND THE CONNECTICUT MILK MARKETING ORDER The Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 601 et seq., confers upon the Secretary of Agriculture the power to regulate the price and marketing of milk and milk products, as well as various other agricultural commodities. With respect to the milk industry, the Act represents the ultimate attempt by Congress to deal with a "nation-wide distress of milk farmers, a distress which had culminated in a milk farmers' `strike'—accompanied by violence and constituting an incipient agrarian revolution—that threatened to cut off a vital part of the nation's food supply." Queensboro Farms Products v. Wickard, 137 F.2d 969, 974 (2 Cir. 1943) (Frank, J.). The basic factors giving rise to what Judge Frank described as the "exquisitely complicated `milk problem'" were set forth by the Supreme Court in United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 549-50 (1939): "It is generally recognized that the chief cause of fluctuating prices and supplies is the existence of a normal surplus which is necessary to furnish an adequate amount for peak periods of consumption. This results in an excess of production during the troughs of demand. As milk is highly perishable, a fertile field for the growth of bacteria, and yet an essential item of diet, it is most desirable to have an adequate production under close sanitary supervision to meet the constantly varying needs. * * * Since all milk produced cannot find a ready market as fluid milk in flush periods, the surplus must move into cream, butter, cheese, milk powder and other more or less nonperishable products. Since these manufactures are in competition with all similar dairy products, the prices for the milk absorbed into manufacturing processes must necessarily meet the competition of low-cost production areas far removed from the metropolitan centers. The market for fluid milk for use as a food beverage is the most profitable to the producer. Consequently, all producers strive for the fluid milk market." The first far-reaching Congressional attempt to meet the problem was the Agricultural Adjustment Act of 1933. That Act provided for marketing agreements and authorized the Secretary of Agriculture to issue "licenses" for the regulation of agricultural commodities, including milk and milk products. In 1935, this Act was amended, partly in order to meet the delegation problems raised by the Supreme Court's decision in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). These amendments subsequently were reaffirmed and reenacted by Congress in the Agricultural Marketing Agreement Act of 1937 (the Act), and, as such, represent the legislative scheme extant today and that involved in this litigation. In order to achieve such orderly marketing conditions as will establish "parity" prices for the dairy farmer and a level and sufficient flow of milk to the market (Section 2 of the Act, 7 U.S.C. § 602), the Act authorizes the Secretary of Agriculture to issue milk marketing orders for the various sections of the *791 country and specifies the terms and conditions which may be included in such orders.[4] Section 8c(5)(A) of the Act, 7 U.S.C. § 608c(5)(A), provides for the classification of milk by each order according to milk's various uses, and for the establishment of a minimum price for each category. Thus, under the Connecticut Milk Marketing Order, which is involved in this litigation and which regulates all milk marketed in Connecticut whether produced in the state or shipped into the state from elsewhere, there are two general categories. 7 C.F.R. §§ 1015.51 and 1015.52 (1968). One category consists essentially of fluid milk used for beverage purposes, while the other consists primarily of milk used for non-fluid purposes. The minimum price for the category of milk used for fluid purposes is the higher to reflect the desirable position of such milk in the marketplace. 7 C.F.R. § 1015.60 (1968). When the "handler", the party who first purchases the farmer's milk either directly or through a marketing cooperative, disposes of milk, he ultimately becomes obligated for the minimum price associated with the use to which that particular milk is put. Section 8c(5)(B) of the Act, 7 U.S.C. § 608c(5)(B), provides, however, that the individual farmer is not to receive payment according to the use of his particular milk. Instead, he is to be paid a uniform price determined either on the basis of the total obligations of the handler to which he delivers his milk or on the basis of the total or pooled obligations *792 of all the handlers covered by an order. Under the Connecticut Order, the uniform, or blend, price is determined under the latter alternative. 7 C.F.R. § 1015.64 (1968). Thus, each handler pays this blend price, adjusted for certain factors to be discussed subsequently, to the farmers or cooperatives from whom he makes his purchases. By paying a farmer according to the marketwide utilization of milk rather than according to the utilization of his particular milk, competition among farmers to sell their milk for fluid use is eliminated. Since the amount for which a handler becomes obligated is determined on the basis of the use of only the milk he handles, and the amount due his farmers is determined by the use of all the milk covered by the Order, Section 8c(5) (C), 7 U.S.C. § 608c(5) (C), permits resort to a "producer settlement fund" to bring the two amounts into balance. If in any month the utilization value of a handler's milk exceeds the blend price value, the handler must pay the difference into the fund. On the other hand, if the utilization value is less than the blend price value, the handler withdraws the difference from the fund. See 7 C.F.R. §§ 1015.80-.82 (1968). As noted above, the uniform price otherwise payable to each farmer is subject to certain adjustments. Section 8c (5) (B), 7 U.S.C. § 608c(5) (B), specifically authorizes adjustment for "volume, market and production differentials customarily applied by the handlers subject to [the] order" and adjustments for "the grade or quality of the milk delivered" and "the locations at which delivery of such milk is made." The Connecticut Milk Marketing Order contains three principal adjustments to the uniform price payable to dairy farmers. Section 1015.71 of the Order, 7 C.F.R. § 1015.71 (1968), provides for a "butterfat differential". Under it a farmer receives either more or less than the uniform price according to whether and by how much the butterfat content of his milk exceeds or falls below a standard level. This differential clearly is related to the grade or quality of the milk and therefore unquestionably is authorized by the Act. It is not challenged here. Section 1015.62 of the Order, 7 C.F.R. § 1015.62 (1968), providing for "plant zone differentials", also is unchallenged. Under this section a farmer receives a lesser price as the distance from Hartford of the handler's plant receiving the farmer's milk increases. The section, however, treats all plants in Connecticut, irrespective of their distance from Hartford, and those plants in Rhode Island and Massachusetts which are not more than fifty miles from Hartford, as if they were in Hartford. The result is that only those producers who deliver their milk to plants outside of this wide area receive a price which decreases as the actual road mileage from Hartford increases. Essentially, the purpose of the differential is to reflect in the price received by the farmer the added cost to the handler of moving the milk from the more distant receiving plants into the marketing area for distribution. Such a differential clearly is authorized as an adjustment according to "the locations at which delivery of such milk is made." The third differential, referred to in the plural as "farm location differentials" because it consists of two parts, is found in Section 1015.72 of the Order, 7 C.F.R. § 1015.72 (1968). It is the validity of this provision which plaintiffs attack. Section 1015.72 provides: "(a) In making payments to producers for milk received from a farm located in Connecticut, Rhode Island, in that portion of New York State east of the Hudson River and south of the Berkshire Section of the New York State Thruway, or in that portion of Massachusetts south of the Massachusetts Turnpike, there shall be added 46 cents per hundredweight. (b) In making payments to producers for milk received from a farm located outside the area described in paragraph (a) of this section, but within that portion of New York State east of the Hudson River and south of the *793 northern boundaries of North Greenbush, Sand Lake, and Stephentown townships in Rensselaer County, and within that portion of Berkshire County, Massachusetts north of the Massachusetts Turnpike, there shall be added 23 cents per hundredweight. (c) The uniform price for pool milk other than producer milk shall be subject to the applicable differentials for milk received from farms located in the areas set forth in paragraphs (a) and (b) of this section. * * *" What this means essentially is that farmers selling milk under the Connecticut Order, whose farms are located in Connecticut, Rhode Island and certain neighboring sections of New York and Massachusetts, receive either 46 or 23 cents more per hundredweight for their milk than other farmers whose farms are located outside of this area but who still market their milk in Connecticut. The obligations of the handlers are not increased to provide for payment of these differentials. Rather, the uniform blended price is decreased so that the total or pooled obligation of all the handlers will be sufficient to cover payment of both the uniform blend price to all farmers under the Order and the additional 46 and 23 cents per hundredweight payable to those designated under this section. Therefore, since the provision results in a lower uniform blend price, those who receive only this price and no differential have standing to attack the provision. Stark v. Wickard, 321 U.S. 288, 302-311 (1944); Blair v. Freeman, 370 F.2d 229, 234 (D.C.Cir. 1966). Furthermore, those farmers now receiving the 23 cent differential would receive a still higher price for their milk if there were no "farm location differentials" at all. Consequently, these farmers have a similar interest and standing to challenge the provision. For this reason, the Court has permitted plaintiffs, who are composed both of farmers not receiving any differential and of farmers receiving the 23 cent differential, to represent all such farmers as a single class in this action. CLAIMED LACK OF AUTHORIZATION FOR FARM LOCATION DIFFERENTIALS 1. Uniform Price Requirement Plaintiffs' primary contention in challenging the validity of the farm location differentials is that the differentials are unauthorized departures from the requirement of Section 8c(5) (B)(ii) of the Act, 7 U.S.C. § 608c(5) (B)(ii), that farmers receive a "uniform" price for all their milk "irrespective of the uses made of such milk by the individual handler to whom it is delivered. * * *" The farm location differentials do, of course, result in a variation in the price received by different farmers. But as agreeable as the concept of price uniformity may be in the abstract, Congress quite obviously did not look upon price uniformity as an absolute rule or even as a goal in itself. For one thing, Congress specifically provided in Section 8c(5) (B) of the Act for adjustments to the uniform price. Furthermore, Congress drafted the Act to allow marketing orders to provide for individual handler pools rather than a market wide pool. Section 8c(5)(B)(i) of the Act. In other words, at the option of the Secretary and with the approval of the dairy farmers, the Connecticut Order could simply direct that each farmer receive payment from his handler according to the utilization of all the milk disposed of by only that particular handler instead of according to the utilization of all the milk disposed of in the entire market. If this were done, there would be no uniformity of price among farmers selling their milk to different handlers. What Congress hoped to achieve was orderly marketing conditions and higher prices. Sections 1 and 2 of the Act, 7 U.S.C. § 602. The attainment of these aims depends in large part upon the elimination of the incentive among dairy farmers to compete for the higher priced fluid milk market. For this reason, Congress set down the general principle that the price paid a farmer for his *794 milk should remain the same "irrespective of the uses made of such milk." Therefore, a variation from price uniformity is not repugnant to the Act simply because it is a variation but will be considered so if the effect of the variation is to increase competition. As the Supreme Court stated in Lehigh Valley Cooperative Farmers, Inc. v. United States, 370 U.S. 76, 79 (1962), "[i]t is in order to avoid destructive competition among milk producers for the premium outlets that the statute authorizes the Secretary to devise a method whereby uniform prices are paid by milk handlers to producers for all milk received, regardless of the form in which it leaves the plant and its ultimate use." The farm location differentials do not in any manner stimulate competition for the fluid milk market since the differentials are paid solely on the basis of the location of a producer's farm and without any regard to the particular use made of the individual producer's milk. This is not to say that the Secretary can include in a milk marketing order any adjustments to the uniform price which he thinks advantageous and which do not bring about ruinous competition or a disorderly market. Quite the opposite is true. Plaintiffs correctly point out that, in enacting the 1935 amendments to the Agricultural Adjustment Act of 1933, Congress was greatly concerned lest milk marketing regulation fall prey to the delegation infirmities noted in the Supreme Court's then recent opinion in A.L.A. Schechter Poultry Corp. v. United States, supra. Congress carefully attempted to delineate and circumscribe the Secretary's powers.[5] Section 8c(5) provides that milk marketing orders shall contain only provisions specified in that section or terms incidental to and consistent with those specified provisions if necessary for their effectuation, and no others. Of even greater relevance is that part of Section 8c(5)(B) which makes payment of the uniform price "subject * * * only to adjustments for (a) volume, market, and production differentials customarily applied by the handlers subject to [the] order, (b) the grade or quality of the milk delivered, [and] (c) the locations at which delivery of such milk is made * * *." Congressional intent is clear that the only authorized departures from the uniform price are those enumerated in Section 8c(5)(B). The Court therefore concludes that, although the farm location differentials are not incompatible with the marketing concept underlying the uniform price principle, the Court cannot uphold their validity unless they fall within one of the specified permissible adjustments. But even if one of the enumerated adjustments does allow such differentials, the Court can affirm the differentials contained in the Connecticut Order only if the Secretary of Agriculture relied upon that specific adjustment as justification when he promulgated the Order. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943). 2. The Secretary's Justification The farm location differentials were included in the Connecticut Milk Marketing Order when the Secretary of Agriculture first promulgated the Order in 1959. 24 Fed.Reg. 1049 (1959). That promulgation and the Secretary's Final Decision issued in connection therewith were the result of extensive hearings held in 1958 in accordance with Sections 8c(3) and (4) of the Act, 7 U.S.C. *795 §§ 608c(3) and (4).[6] In his Final Decision, the Secretary set forth detailed findings with respect to the farm location differentials: "Provision should be made also for the payment of a market differential to producers in the nearby supply area. The monies for the payment of these differentials will be obtained by a deduction from the total value of all milk before completing the computation of the market-wide uniform price * * *. "Milk received from the nearby area has long represented the major part of the total Connecticut supply. The differentials adopted recognize the higher percentage of the milk near to the market than of milk in the more distant zones which customarily has been used for fluid purposes. Nearby producers have been able to obtain a price higher, in relation to more distant producers, than can be accounted for by the advantage in the cost of transportation to market. This historical pattern of pricing has been typical in the markets of this region, and market differentials of this type have been adopted in the nearby regulated markets. The differentials adopted will reflect more representative values with respect to the milk of both nearby and distant producers since the nearby producer will share in the higher-priced Class I market to an extent somewhat greater than otherwise would be the case under market-wide pooling. "In addition, the use of a nearby differential will assist in providing appropriate price alignments for direct delivery producers which will permit Connecticut handlers to continue to compete in the purchase of milk on reasonable terms with dealers in adjacent markets. The amounts of such differentials are very similar to those employed in other New England Federal order markets and are in reasonable alignment with the schedule employed in the New York-New Jersey market. Such differentials were proposed and generally supported by both producers and handlers at the hearing. Their employment will tend to promote orderly marketing in the milkshed." 24 Fed.Reg. 1049, 1063 (1959). These findings were reaffirmed by the Secretary in 1960 after lengthy hearings on the New England orders. 25 Fed.Reg. 7819, 7833-34 (1960). Most recently in 1964, after further hearings, the Secretary again ruled in favor of continuation of the differentials: "4. Farm location differentials. The farm location differential provisions under the present New England orders should be continued under the Massachusetts-Rhode Island order and the Connecticut order. * * * "Such farm location differentials have been in effect under the several New England orders since the inception of the orders. The differentials were adopted to reflect in the pricing structure of the orders historical price relationships by location which prevailed in these markets. It was found that customarily somewhat higher values, above those which normally reflected transportation costs, attached to milk produced near the principal consumption centers as compared to the market value of milk produced in the *796 more distant areas of the milkshed." 29 Fed.Reg. 11205, 11213 (1964). The findings quoted above indicate that the Secretary considered the Connecticut farm location differentials to be "adjustments for (a) * * * market * * * differentials customarily applied by the handlers * * *" as provided in Section 8c(5)(B) of the Act. For example, at the very outset of the discussion of farm location differentials in the 1959 Final Decision, the Secretary refers to the need for the payment of a "market differential." He then discusses the differential in terms of past practice and as a "historical pattern of pricing * * * typical in the markets of this region" and points out that "market differentials of this type have been adopted in the nearby regulated markets." The Secretary's later Final Decisions contain similar references. Plaintiffs, however, ignore this language and stress the statement by the Secretary that the differentials will permit the nearby producer to "share in the higher-priced Class I market to an extent somewhat greater than otherwise would be the case under market-wide pooling." 24 Fed.Reg. 1049, 1063 (1959). Plaintiffs argue that this is an admission that the differentials are in fact based on the utilization of milk. As indicated above, however, the differentials are paid on the basis of farm location. The use made of the milk by the handler is totally irrelevant. The commonly understood meaning of a differential, referred to in the Secretary's statement, was explained at the trial by Mr. Herbert L. Forest, Director of the Dairy Division of the United States Department of Agriculture: "A differential in an order for any purpose means that some farmer or some farmers who get the differential get a higher price, and the only way they can get a higher price as compared with other farmers is to take it out of the higher utilization, because it is the class 1 higher value added to the pool which gives any basis for farmers getting a higher value. So that when one producer gets a differential as compared to another, in effect he is drawing out of this higher value which class 1 has put into it. Some other farmers get less. So when we talk about differentials, we usually say he gets a bigger cut of class 1 sales, because in effect that is what it means. That is the only place the differential can come from." Furthermore, the Secretary's conclusion that the differentials would assist in providing proper price alignments so that Connecticut handlers could compete for milk supplies with handlers in adjacent markets, far from showing that the differentials are incompatible with the Act, indicates that they are vital to achieve orderly markets, an avowed objective of the Act. Defendant-interveners suggest that farm location differentials can also be classified as production differentials or adjustments depending on the location of delivery of milk. While the Court recognizes the force of arguments along these lines, no such findings were made by the Secretary in his Final Decisions. As the Secretary states in his brief in the instant action: "Either the farm location differential is a proper adjustment to the uniform price within the express provisions of 8c(5) (B) (ii), i. e. a `market differential customarily applied', or it is not. That is the real question in issue. The Secretary's finding leaves no doubt as to his justification." The Court must therefore confine itself to consideration of whether farm location differentials are in fact market differentials customarily applied by handlers. 3. Legislative and Administrative History If the phrase "market * * * differentials customarily applied by the handlers" clearly either did or did not encompass on its face farm location differentials, the Court's task would be simple. Plaintiffs, on the one hand, contend that, in view of Congressional concern over the delegation problem, only *797 the explicit use in the Act of the words "farm location differentials" could be taken as authorization of such differentials, and therefore the phrase relied on by the Secretary patently does not authorize these differentials. On the other hand, defendant-interveners argue that the statutory language plainly includes farm location differentials. The Court disagrees with both of these claims. A desire to delineate and circumscribe an administrator's powers does not automatically result in or insure clear, precise and self-defining statutory language. When the language does not measure up to the ideal standard, the courts would be doing a disservice to the legislative branch if, instead of using available means at arriving at the true intent of Congress, they refrained from giving the language any meaningful effect at all. A similar disservice would result if the courts went to the other extreme and held the language to include everything that any conceivable reading could find it to include. It is perfectly obvious to the Court that the term "market differentials" is sufficiently broad and indefinite when used in connection with marketing orders to encompass many types of differential; but by the same token this broadness does not necessarily mean that Congress intended it to have such a wide scope. The Court therefore finds entirely proper the suggestion of the Secretary that the Court resort to the usual aids to legislative interpretation in order to ascertain whether Congress intended farm location differentials to be encompassed by "market * * * differentials customarily applied by the handlers subject to such order." Examination of the House of Representatives report, H.R.Rep.No. 1241, 74th Cong., 1st Sess. (1935), and the similar Senate report, S.Rep.No. 1011, 74th Cong., 1st Sess. (1935), which accompanied the 1935 amendments to the Agricultural Adjustment Act of 1933, does not result in immediate clarification of the issue. On the one hand, the reports evidence a clear Congressional intent to affirm the varied marketing efforts and practices engaged in by the cooperatives prior to the 1933 Act and continued pursuant to licenses issued under that Act, and to encourage local variations in marketing plans. "The proposed amendments substitute the word `order' for `license' in order more accurately to describe the nature of the Secretary's regulatory power. The operations of cooperative marketing associations will be reenforced by the new sections of the bill dealing with these matters and these provisions will assure the cooperation of processors and distributors in programs intended to raise farm prices. The marketing agreements and licenses which have been issued and entered into pursuant to the Agricultural Adjustment Act have contained a great variety of provisions in order to adapt each particular program to the peculiar problems and circumstances presented in a given area by a particular commodity. * * * * * * "So that proper recognition may be given to local differences which may exist in production or marketing methods or conditions, orders are required to be limited in their application to the smallest practicable regional production or marketing areas, and orders applicable to the same commodity or product are required to prescribe such terms applicable to different production or marketing areas as will recognize local production and marketing differences. Orders relating to milk and its products are exempted from the requirement that they be limited in their application to the smallest practicable regional production or marketing areas. * * * * * * "Third. Subsection (5) of the proposed section 8c states specifically the terms which may be included in orders relating to milk and its products. These terms follow the methods employed by cooperative associations of producers prior to the enactment of the Agricultural Adjustment Act and the provisions of licenses issued pursuant *798 to the present section 8(3) of the Agricultural Adjustment Act." H.R.Rep.No. 1241, supra at 7, 9; see S. Rep.No. 1011, supra at 9. On the other hand, the definitions of volume, production, and market differentials given in the reports would, if followed, make invalid many of the local adjustments and variations achieved by cooperatives and continued under the licenses. "Minimum prices fixed in such orders are required to be uniform as to all handlers, subject to adjustments for differences in the grade and quality of the milk delivered, for differences in transportation costs from the place at which delivery is made to the handler to the distributing or processing plant, and for volume, market, and production differentials customarily applied by handlers. The volume differential is a differential which is paid when the operations of several country plants are consolidated into one plant. The inconvenience which is caused to producers by closing up plants to which they have been delivering and requiring that all of their milk be handled by one plant, is compensated by an additional payment to the producers. The production differential is the differential which is paid to a producer, compensating him for keeping his farm and milk qualified for a city market even though his milk may actually be going into manufactured use. It is necessary to keep this supply of reserve milk available for periods in which consumption of milk goes up so that the effect is that the producers must keep their farm in the same condition as if they were shipping milk into the city every day. The production differential is a payment to the farmer for performing this function in the market. "The market differential is a differential which is given to the producer to compensate him for delivering his milk to a city market instead of to a country plant. These differentials vary with the markets and cannot be qualified as a `location' differential, because of the fact that location is usually determined on the distance from a primary market whereas market differentials are usually paid in secondary markets." H.R. Rep.No. 1241, supra at 9-10; S.Rep. No. 1011, supra. At the trial, witnesses thoroughly familiar with milk marketing both prior to and after the enactment of the 1933 Act testified that these definitions not only excluded differentials in use under the licensing programs but that at least one of the definitions failed to describe any differential then in existence. Richard D. Aplin, who was Assistant Market Administrator under the first federal milk license for the Boston market beginning in 1933 and who is now Market Administrator under the Massachusetts-Rhode Island Order, testified that a volume differential as defined in the reports was paid only by the Dairymen's League Cooperative in New York in the late 1920's and early 1930's, but that a differential for large volume producers was common practice. Mr. Aplin further stated that he knew of no differential that fell within the definition of production differentials as described in the reports although here again he knew of differentials in existence which could be called production differentials, as for example, payments for maintaining evenness of production throughout the year. With respect to market differentials, Mr. Aplin testified that, while the definition given might apply to higher payments made at city plants, such payments, contrary to the reports, were made only in primary markets and not in secondary ones. He himself believed that the farm location differentials, which he stated customarily were paid in New England, were really market differentials. Donald Hammerberg, Market Administrator under the Connecticut Order, essentially corroborated Mr. Aplin's testimony, although he was not familiar with the volume differential paid by the Dairymen's League and knew of no differentials *799 which would fit the definition of market differentials described in the reports. Two men who participated in drafting the 1935 amendments, Reuben Hall and Donald Kane, testified that the language with respect to volume, market and production differentials was not decided upon until the day before the legislation was introduced and that the problem had been to choose language specific enough to satisfy delegation requirements and yet broad enough to permit the Secretary to adapt the orders to meet varying conditions and to create stability. They stated that the language agreed upon purposely was chosen for its breadth and it definitely was contemplated by the drafters that the phrase "market differentials customarily applied" should include farm location differentials.[7] That Congress did not in fact intend to be restrictive in its authorization of differentials is most strikingly illustrated by a colloquy which took place on the Senate floor between Senator Copeland of New York and Senator Murphy, the floor manager of the bill, after issuance of the Committee reports. 74 Cong.Rec. 1139-40 (1935). Senator Copeland first inquired about the effect of equalization on the supply of milk. "MR. COPELAND. What has the Senator to say to the suggestion that in a number of communities in up-State New York there is not a sufficient supply of milk surrounding the market to take care of the demand; therefore, milk must be brought into the market from more distant points? The provisions of the equalization which we are now discussing provide that a producer who is producing his milk on farms near to cities would receive the same price for his product as a farmer who produces his milk, say, 40 or 50 miles away from the same community." Senator Murphy replied that Senator Copeland was generally correct. "MR. MURPHY. If they were embraced in the same marketing area, that would be true. Let us keep in mind what the situation is. There is a deficiency of consumer demand. There is a surplus of milk. The price is greatly depressed, and has been for 5 years. The only way in which one can determine how each one of the producers included in the plan provided here shall bear his share of the cost of effecting a higher price is to divide the milk by classification uses." Senator Copeland, however, was not satisfied with this response. "MR. COPELAND. I do not think the Senator has quite stated all the conditions. He does not take into consideration the difference in the cost of production. Taxes and values of property near the city are very much higher than in the case of property farther away from the city. The transportation differential does not compensate for the difference in cost, as I see it." The answer then given by Senator Murphy demonstrates that differentials, such as farm location differentials, were contemplated. "MR. MURPHY. If the Senator will refer to page 12, line 13, he will see that there is this qualification: `Such prices shall be uniform as to all handlers, subject only to adjustments for (1) volume, market, and production differentials customarily applied by the handlers subject to such order—' They adopt the present practice of business— `(2) the grade or quality of the milk purchased, and (3) the locations at which delivery of such milk, or any use classification thereof, is made to such handlers.'" (Emphasis added) *800 In view of these remarks by Senator Murphy, and in view of the testimony of two of the drafters of the statutory language in question, and considering the expressions of intent in the Committee reports that local variations and past practices under cooperative and licensing agreements should continue, the Court concludes that the narrow definition of market differentials contained in the Committee reports must be read as illustrative rather than as restrictive. At the trial much evidence was introduced by the Secretary and defendant-interveners as to differentials received in the 1920's and 1930's by milk producers whose farms were located in close proximity to the Boston market. While this evidence does not directly justify the inclusion of similar differentials in the Connecticut Order, it is relevant insofar as it establishes that payment of farm location differentials was in fact an approved "practice of business" at the time of the enactment of the 1935 amendments to the Agricultural Adjustment Act of 1933 and that such differentials were therefore contemplated by Congress. Reuben Hall testified that beginning in the mid-1920's and continuing right up until the advent of federal licensing in 1933 it was the voluntarily agreed upon practice of handlers under contract with the New England Milk Producers Association to pay a premium to nearby farmers of about 46¢ per hundred-weight; this was derived from an amount otherwise payable to all producers. Sometimes this was achieved by what was called a preferential base rating plan which meant that a greater proportion of a nearby producer's milk was treated as being used as higher priced Class I or fluid milk. The premium was over and above any additional amounts paid to nearby producers by handlers because of savings in transporting the milk to market. It was simply part of a self-imposed, self-regulating program designed to stabilize the market. The first federal license under the Agricultural Adjustment Act was issued by the Secretary on October 30, 1933 and became effective on November 3, 1933. Under the license, a preferential base was used to maintain the differential of approximately 46¢ per hundredweight above transportation cost savings which previously had been paid to nearby farmers. Admittedly, under the language of the license the preferential base was granted to farmers who delivered their milk directly to the handlers' city plants. But, as a number of witnesses testified, only producers whose farms were nearby the city could deliver to the city plants because of the delivery methods then in existence. The others had to deliver to country stations and therefore did not receive the preferential base. The result was that the license in effect provided for a differential to producers with nearby farms. That those administering the license thought they were doing just this is evident from a pamphlet entitled "The Boston Milk License" issued August 1, 1934 by the Boston Market Administrator. Although the pamphlet was distributed in connection with a second Boston license which had replaced the first on March 16, 1934, the pamphlet's author, who was the witness Richard Aplin, was referring to the provisions of the first license and the conditions surrounding its issuance when he stated: "It was found that in past years the producers who were located near Boston had consistently received the fluid milk price for a larger proportion of their milk on account of their having been able to adjust their production more closely to the requirements of their distributors. A careful study by the Administrator, covering the eight-year period from 1926 to 1934, showed that the assignment of 85% bases to these producers would result in giving to them the same relative advantage that they have had during the past over producers who were located at a greater distance from the market. Consequently producers whose milk was delivered directly to a distributor's city plant within 35 miles of the State House in Boston *801 were assigned base ratings equal to 85% of their average deliveries of milk in September, October and November, 1933, or 85% of their average daily deliveries of milk for the entire year 1933, whichever amount was greater in each case. A few groups of producers who were delivering milk to plants more than 35 miles, but less than 100 miles, from the State House at Boston, were given bases less than 85%, but more than 61% of their 1933 production." Actually, the preferential treatment accorded nearby farmers was continued under the second license although that license left it to the Market Administrator to determine each individual farmer's base. The second Boston license was declared invalid on May 17, 1935 by the District Court for the District of Massachusetts in United States v. Seven Oaks Dairy Co., 10 F.Supp. 995 (D.Mass. 1935). The license, however, remained on the books until February 9, 1936 when it was replaced by the first order under the 1935 amendments to the Agricultural Adjustment Act of 1933. Under this order, there were no preferential bases as such —all farmers' bases were determined by the same formula—but those producers whose farms were within forty miles of the State House in Boston and who delivered to a plant within forty miles of the State House received a higher price for all their base milk than those farmers delivering to a plant within forty miles of the State House but whose farms were located more than forty miles away. Thus, this differential unquestionably was based solely on the location of a producer's farm. The first Boston order was suspended by the Secretary on July 31, 1936 when the District Court for the District of Massachusetts held the Agricultural Adjustment Act unconstitutional in United States v. David Buttrick Co., 15 F.Supp. 655 (D.Mass. 1936), rev'd, 91 F.2d 66 (1 Cir. 1937). After passage of the Agricultural Marketing Agreement Act on June 3, 1937, the Secretary reinstated the order in part, effective July 1, 1937. The order was then amended and as amended became fully effective on August 1, 1937. 2 Fed.Reg. 1588 (1937). The amended order eliminated base ratings entirely and simply provided for the payment of a 46¢ differential to producers with farms located near the State House, and a 23¢ differential to producers with farms situated at an intermediate distance. 2 Fed.Reg. 1588, 1590 (1937). This provision in essence remained in effect in all orders regulating the Boston market until it was declared invalid in Allen v. Freeman, Civil Action 3379-66 (D.D.C., June 15, 1967), aff'd sub nom, Zuber v. Allen, 402 F.2d 660 (D.C.Cir. 1968), petition for cert. filed, 37 U.S.L.W. 3229 (U.S.Dec. 20, 23, 1968) Nos. 861, 874). See Zuber v. Allen, 387 F.2d 862 (D.C.Cir.1967). The farm location differentials contained in the Connecticut Marketing Order are the equivalent of the Boston differentials. This fundamental continuity in the use of farm location differentials beginning in a period of attempted self-regulation and progressing through various stages of government regulation clearly suggests that Congress recognized the need for such differentials and intended to authorize them. Certainly those people in the industry and government most intimately involved in drafting the regulatory language and in administering the resulting legislation believed that Congress intended to authorize farm location differentials, and they continue to believe so. Their opinions cannot be ignored. As the Supreme Court stated in United States v. American Trucking Associations, Inc., 310 U.S. 534, 549 (1940): "In any case such interpretations are entitled to great weight. This is peculiarly true here where the interpretations involve `contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.'" See also Udall v. Tallman, 380 U.S. 1, 16 (1965); Power Reactor Development *802 Co. v. International Union of Electrical, Radio and Machine Workers, AFL-CIO, 367 U.S. 396, 408 (1961); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315 (1933). Indeed, such deference is to be accorded administrative interpretation of statutory language that to sustain such an interpretation, the Court "need not find that [the administrative] construction is the only reasonable one, or even that it is the result [the Court] would have reached had the question arisen in the first instance in judicial proceedings." Unemployment Compensation Comm'n v. Aragon, 329 U.S. 143, 153 (1946). See also, e. g., Udall v. Tallman, supra, at 16. Congressional reenactment of the 1935 amendments to the Agricultural Adjustment Act of 1933 in the Agricultural Marketing Agreement Act of 1937 is, under the circumstances of this particular legislation, an indication that Congress approved the use of farm location differentials, since the 1936 Boston order issued under those amendments contained such differentials. In Queensboro Farms Products v. Wickard, 137 F.2d 969 (2 Cir. 1943), an attack on a provision of the milk order regulating the New York metropolitan milk market drew in question the meaning of the phrase "use classification" in Section 8c (5)(A) of the Act. The Court, in an opinion by Judge Frank, upheld the Secretary's interpretation of the language of the Act and in so doing alluded to the significance of the 1937 reenactment of the 1935 amendments: "After the Act was amended in 1935, the Secretary issued several regional milk orders. In some of them, he adopted as a measure of `use,' and as a basis for classification, the form in which milk was sold by, or moved from, the plants of, handlers. While those orders were in effect, Congress (because of the decision in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, holding certain aspects of the Act unconstitutional) after reconsidering inter alia, the provisions which had been added in 1935 and pursuant to which these orders had been made, reenacted those 1935 provisions with amendments not here pertinent. It is true, of course, that bald re-enactment of statutory provisions, without more, need not be given much weight as indicating an adoption of preceding administrative interpretation; but where careful consideration has—as in the case of the statute before us—been given by Congress in connection with a re-enactment much is to be said for a contention that Congress intended to adopt the intervening administrative interpretation." (Footnotes omitted) Id. at 976-77. Judge Frank's conclusion is equally applicable here. Furthermore, the 1937 reenactment goes a step beyond implicit approval of the differentials. Section 4 of the Act, 50 Stat. 249, provides: "Nothing in this Act shall be construed as invalidating any marketing agreement, license, or order, or any regulation relating to, or any provision of, or any act of the Secretary of Agriculture in connection with, any such agreement, license, or order which has been executed, issued, approved, or done under the Agricultural Adjustment Act, or any amendment thereof, but such marketing agreements, licenses, orders, regulations, provisions, and acts are hereby expressly ratified, legalized, and confirmed." What otherwise might be a meritorious argument that Congress simply intended to prevent technical abatement of prior orders is countered by the Committee Report of the House of Representatives accompanying the proposed legislation. "Section 4 of the bill negatives any implication that its effect is to invalidate or cast doubt on action heretofore taken under the agreements and orders provisions. The section also expressly ratifies, legalizes, and confirms such action. Judicial sanction for such a provision is found in Mattingly v. District of Columbia ((1878), *803 97 U.S. 687, 690); United States v. Heinzen ((1907), 206 U.S. 370, 382); Tiaco v. Forbes ((1913), 228 U.S. 549, 556); Rafferty v. Smith, Bell & Co. ((1921), 257 U.S. 226, 232); Isbrandtsen-Moller Company, Inc., v. United States et al. (No. 307, October term, 1936, United States Supreme Court, decided Feb. 1, 1937); and Swayne & Hoyt, Ltd., et al. v. United States (No. 494, October term, 1936, United States Supreme Court, decided Mar. 1, 1937)." H.Rep.No. 468, 75th Cong., 1st Sess. 4 (1937). The first sentence makes it clear that Congress indeed wished to avoid technical abatements; but the second sentence, by use of the word "also", demonstrates that Section 4 was further designed to ratify, legalize and confirm affirmatively the provisions of past orders. Moreover, the cases cited in the report all involved instances in which Congress had legalized or ratified prior executive action; none of them was concerned with mere technical abatement.[8] Finally, it is important to note that, in all the years since passage of the 1935 amendments and the 1937 Act, farm location differentials have been used in a number of marketing orders by the Secretary, and Congress has taken no action to put an end to the practice. Cf. Udall v. Tallman, supra, at 408-09. This history of reenactment, confirmation, and acquiescence does not directly establish that farm location differentials as contained in the Connecticut Order are a proper exercise of administrative power. That depends in part upon whether there is substantial evidence in the record to support the Secretary's findings. The history, however, does tend to support the conclusion that farm location differentials as a general proposition are authorized by the Act and approved by Congress for use in marketing areas where historically they have been paid by handlers and their continued payment will tend to effectuate the purposes of the Act. 4. Not a Trade Barrier Plaintiffs further contend that farm location differentials constitute a trade barrier in violation of Section 8c(5)(G) of the Act, 7 U.S.C. § 608c (5)(G). That section provides that milk marketing orders shall not "prohibit or in any way limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States." Plaintiffs' argument is without merit. The record is devoid of evidence showing that payment of the differential in any way prohibits or limits the flow of milk or its products into or within the Connecticut market. See Freeman v. Lewes Dairy, Inc., 337 F.2d 827 (3 Cir. 1964), cert. denied, 379 U.S. 1000 (1965); cf. Lewes Dairy, Inc. v. Freeman, 260 F. Supp. 921 (D.Del.1966), appeal pending. In fact, plaintiffs admitted at trial that they had switched from shipping into other markets to ship into Connecticut *804 because they obtained a better price for their milk under the Connecticut Order. It must also be noted that farms receiving the benefit of the differential are not limited to Connecticut farms but include farms in Rhode Island and neighboring portions of New York and Massachusetts—areas from which milk can be shipped directly to market in Connecticut. Thus, the differential clearly is not designed to limit the flow of out-of-state milk. Furthermore, even if payment of the differential could be construed in some way as limiting the flow of milk, Section 8c(5)(G) was not designed to prevent such limitations where they result from the exercise of express authority conferred by Sections 8c(5)(A) and (B) to classify, price and pool milk and to make adjustments. Apparently Section 8c(5) (G) originated in the House of Representatives as an amendment to the bill. As first introduced by Congressman Andresen, it simply provided that no marketing order shall "prohibit" the marketing in that area of any "milk or milk product" produced in any area of the United States. 79 Cong.Rec. 9572 (1935). Congressman Southoff then suggested that the provision be strengthened by substituting the words "limit or tend to limit" for the word "prohibit." Id. Congressman Jones, the floor manager of the bill, immediately pointed out that if the words "limit or tend to limit" were substituted, it "would absolutely wreck the whole milk program." He then offered an explanation for his position: "In order to get away from the terrific conditions that have prevailed in the milk industry there is provided in the bill authority to fix a minimum price to producers. That, at least in a measure, would limit or tend to limit shipment, and yet the gentleman, I am sure, does not want to interfere with the price to producers. Then it is a universal custom in the marketing of milk to classify milk. This, in a way, is a limitation. "I am perfectly willing to adopt the first amendment suggested, because that simply treats all areas alike, for you could not prohibit someone from an outside area coming in so long as he complied with the conditions prescribed for that area; but if you said that no restrictions or limitations could be required, it would wreck the program, it would destroy every vestige of a program we have for milk." The result was that the wording of Section 8c(5) (G), as finally adopted, carefully avoided the problem alluded to by Congressman Jones. This is made quite clear in the conference report accompanying the proposed legislation: "Amendment no. 24: Under the House bill, no marketing agreement or order applicable to milk and its products in any marketing area could prohibit the marketing in that area of any milk or product thereof produced in any production area in the United States. The Senate amendment extended this provision so that no marketing agreement or order so applicable could limit in any manner the marketing in the marketing area of milk or its products produced anywhere except that certain limitations on the marketing of milk were specifically permitted. The conference agreement retains the House provision with respect to prohibitions on marketing of both milk and products of milk. The conference agreement also denies the authority to limit in any manner the marketing in any area of milk products (butter, cheese, cream, etc.) produced anywhere in the United States. The language adopted by the conference agreement does not refer to milk, and so does not negative the applicability to milk, for use in fluid form or for manufacturing purposes, of the provisions of the bill relating to milk, such as the provisions on price fixing, price adjustment, payments for milk, etc." H.R.Rep. No. 1757, 74th Cong., 1st Sess. 21 (1935). (Emphasis added) Thus farm location differentials, permitted as they are as market differentials, *805 are not prohibited by Section 8c (5)(G). Lehigh Valley Cooperative Farmers, Inc. v. United States, 370 U.S. 76 (1962), is not authority to the contrary. In that case the Supreme Court held invalid as a trade barrier in violation of Section 8c(5)(G) a provision in the New York-New Jersey Order which required special payments to be made on certain otherwise unregulated milk shipped into the marketing area. The Supreme Court found that this requirement in effect precluded or severely curtailed the shipment of such milk into the market. Id. at 86-87. Significantly, the only authorization offered by the Secretary for the requirement was Section 8c (7)(D) of the Act, 7 U.S.C. § 608c(7) (D), which permits the Secretary to include terms in Orders which are incidental to the provisions specified in Section 8c(5) of the Act only if those terms are not inconsistent with those provisions and are necessary to effectuate them. The Supreme Court concluded that, since the requirement was inconsistent with Section 8c(5)(G), it could not be justified by Section 8c(7)(D). Id. at 98. In the present case the differentials do not exclude milk from the area nor does the Secretary attempt to justify them as being incidental to other authorized provisions. 5. Judicial Interpretation The validity of farm location differentials was passed upon and approved by the courts shortly after the passage of the 1937 Act. Numerous handlers in the Boston area refused to comply with the Greater Boston Milk Marketing Order when it became effective in its amended form on August 1, 1937. In response, the government sought and obtained temporary injunctions against the handlers in the District Court. United States v. Whiting Milk Co., 21 F.Supp. 321 (D. Mass.1937); United States v. H. P. Hood & Sons, Inc., 26 F.Supp. 672 (D.Mass. 1939). These cases, after being docketed on appeal in the Circuit Court of Appeals for the First Circuit, went directly to the Supreme Court on certiorari where they were considered along with cases challenging the validity of the milk marketing order regulating the handling of milk in the New York metropolitan area. The result was that the Supreme Court handed down two opinions. In the first, United States v. Rock Royal Co-operative, Inc., 307 U.S. 533 (1939), the Supreme Court considered extensive attacks on the constitutionality of the 1937 Act and the validity of the New York Milk Marketing Order; the Court upheld both the Act and the Order. In the second, H. P. Hood & Sons, Inc. v. United States, 307 U.S. 588 (1939), the Supreme Court sustained the Boston Order. The New York Order considered in Rock Royal contained provision for the payment of a 25¢ differential to farmers delivering their milk to handlers' plants located in eighteen counties near New York City. While five cents of the differential was paid out of the handlers' own pockets, the other twenty cents was obtained by deducting that amount from the price which otherwise would be paid to all farmers—precisely the manner in which the Connecticut farm location differentials operate. Furthermore, as was pointed out in connection with a similarly worded differential in the first Boston license of 1933, delivery to plants in those counties meant that the farms from which the deliveries were made were located there. In fact, those persons involved with the differential always spoke of it as a differential paid on the basis of farm location. Thus, the District Court in the Rock Royal case, in discussing the differential, stated: "[The handlers] are also required to pay into the Producers Settlement Fund to provide preferential payments made to producers living in 18 counties, under the provisions of Article 6, Section 8. The producers in those counties receive 20 cents per cwt. in addition to the locational differentials, which return them a higher price for their milk because they are located nearer New York." 26 F.Supp. 534, 554 (N.D.N.Y.1939). *806 The District Court held the differential invalid and refused enforcement of the Order on this and other grounds. On appeal to the Supreme Court, the government defended the differential as one based on farm location: "There was ample evidence before the Secretary to justify the reasonableness of the nearby differentials. The 18 counties to which the nearby differentials apply are all very close to the marketing area and are separated from the rest of the milkshed by nonproductive mountainous territory * * *. The milk of producers in these counties is readily available for use in the fluid market and producers in these counties have always enjoyed an almost exclusively fluid market, not by reason of accidents of competition but by reason of their natural advantages. Accordingly, it was reasonable that these producers should receive a special differential." Brief for the United States, Oct. Term, 1938, No. 771, at 60-61. The appellee, on the other hand, argued as plaintiffs do in the instant action that the differential was "neither contemplated nor authorized by the Act", was "repugnant to `equalization', which the statute sought to accomplish" and was the "basis of inequality". Brief for Rock Royal Co-operative, Oct. Term, 1938, No. 771, at 76. The Supreme Court, in reversing the District Court, held that "[t]he Act authorizes such an arrangement", citing Section 8c(5)(A). 307 U.S. at 567. It is true that Rock Royal was a suit involving handlers and not producers; and Section 8c(5)(A) applies to the former rather than the latter. But Section 8c(5)(A) provides for the same uniform prices subject to the same adjustments as set out in identical language in Section 8c(5)(B) applicable to producers. Therefore, the Supreme Court's holding that Section 8c(5)(A) "authorizes such an arrangement" is most certainly authority that Section 8c (5)(B) authorizes the same arrangement. It is also true that the Supreme Court refrained from considering the District Court's finding that the differential was discriminatory as to producers since only handlers were involved in the action. The Supreme Court, however, did reject contentions of discrimination against handlers made by appellees because they were "fanciful and remote" and "would not justify a court in overturning the Secretary's determination of the propriety of the differentials on evidence found by the lower court to be substantial." 307 U.S. at 567. The Supreme Court further concluded that "[s]uch an administrative determination carries a presumption of the existence of a state of facts justifying the action far too strong to be overturned by such suggestions as are made here." 307 U.S. at 567-68. While generally upholding the validity of the Boston Milk Marketing Order in H. P. Hood & Sons, Inc. v. United States, supra, the Supreme Court omitted any specific discussion of the farm location differentials contained in the Order. These differentials had been challenged in the lower court but the challenge apparently was not pressed in the Supreme Court. See Green Valley Creamery, Inc. v. United States, 108 F.2d 342, 344 (1 Cir. 1939). The Supreme Court, however, did note that, pursuant to the Order, adjustments were made for differentials. 307 U.S. at 594. In view of this and the Court's simultaneous decision in Rock Royal, it may be assumed that the Court was not struck by any essential distinction between the differentials in H. P. Hood & Sons and the differential it upheld in Rock Royal. If there is any doubt as to whether the Supreme Court gave full consideration to the validity of farm location differentials, there can be no doubt that the differentials received such consideration by the Court of Appeals for the First Circuit. Approximately six months after the Supreme Court rendered its decisions in H. P. Hood & Sons and Rock Royal, the Court of Appeals for the First Circuit decided Green Valley Creamery, Inc. v. United States, 108 F.2d 342 (1 Cir. 1939). *807 In that opinion the court first noted that, because of the prior Supreme Court decisions, appellants, who were milk handlers, were no longer free to question the constitutionality of the Act nor the validity of most of the terms of the Boston Order. The court, however, did permit them to challenge three provisions of the Boston Order because attacks on these provisions had not been pressed before the Supreme Court. One of these provisions established the farm location differentials and another specified two sets of minimum prices, the higher applicable to milk purchased from associations of producers, and the lower applicable to milk purchased directly from individual producers. The court found that the two sets of minimum prices were justified as "a market differential customarily applied by handlers." Id. at 345. The court held that the evidence before the Secretary supported a finding that a higher price had customarily been paid in the market area to producers' associations because such milk had "an enhanced value" due to the fact that many marketing services had already been performed by the associations. The court further held that "[t]he phrase `market differential', undefined as it is in the Act, is reasonably susceptible of such an interpretation." Id. Thus the court rejected the narrow definition of "market differential" suggested by some of the language in the Senate and House Committee reports and argued here by plaintiffs.[9] As a further ground for its decision the court noted that the provision existed in the Boston Order prior to the 1937 Congressional reenactment without change of the 1935 amendments to the Agricultural Adjustment Act of 1933. In considering the farm location differentials, the court placed heavy emphasis on the fact that such differentials had been paid historically. "There was evidence before the Secretary to the effect that similar differentials in favor of nearby farms had existed in the Boston market for many years. Various factors were mentioned as accounting for this, including their greater accessibility to the market, and their greater dependability as sources of supply, because, as experience showed, the nearby farms had a more uniform level of production throughout the year. These producers were also potential dealers, who might establish their own milk routes in competition with handlers in the Boston market, if prices were not acceptable. Whatever the explanation, this group of producers in fact commanded somewhat more favorable prices for their fluid milk as against producers more remotely located. The differentials now objected to were inserted in the Order so as not to disturb the status quo in this respect." Id. at 346. The court recognized that "[m]ilk entering the Boston market from nearby farms is presumably delivered to handlers at points nearby the market", and therefore the differentials could be authorized pursuant to Section 8c(5)(B)(ii) of the Act as differentials based upon "the locations at which delivery of such milk is made." Id. But the court found it unnecessary to further develop this point because it concluded that "* * * the differentials can readily be sustained under Section 8c(5) (B) (ii) (a) of the Act as market differentials which had customarily been applied by handlers subject to the Order. *808 They are called `location differentials' in the Order, and so they are; but they are also customary market differentials based upon the location of farms nearby the market." Id. The court also observed that the farm location differentials were part of the Boston order at the time of the 1937 reenactment of the 1935 amendments to the Agricultural Adjustment Act of 1933. Thus the Court of Appeals clearly found, as the Secretary contends here, that farm location differentials are market differentials authorized by the Act where such differentials customarily have been paid. It was only after the court had so concluded that it noted that handlers lacked standing to raise the issue because the differentials affected only producers. This Court is of the opinion that the Court of Appeals' final point in no way weakens the authority of its prior conclusions concerning the validity of the differentials and that these conclusions should be afforded great weight, coming as they did such a short time after enactment of the legislation in question. Certainly a court sitting contemporaneously with a legislature is in a better position to ascertain the true intent of that legislature than a court sitting some thirty years later. Plaintiffs place great reliance on the recent decisions of Blair v. Freeman, 370 F.2d 229 (D.C.Cir. 1966), and Allen v. Freeman, Civil Action 3379-66 (D.D.C., June 15, 1967), aff'd sub nom, Zuber v. Allen, 402 F.2d 660 (D.C.Cir. 1968), petitions for cert. filed 37 U.S.L.W. 3229 (U.S. Dec. 20, 23, 1968) (Nos. 861, 874). See Zuber v. Allen, 387 F.2d 862 (D.C. Cir. 1967). In Blair, the Court of Appeals for the District of Columbia Circuit held invalid the farm location differentials then contained in the New York-New Jersey Milk Marketing Order, 7 C.F.R. § 1002 (1968). Certain factual differences exist between the circumstances found by the court in Blair and the circumstances in the instant case. For example, the differentials in the New York-New Jersey Order varied in amount according to the total utilization of fluid milk in the market, a factor which bore heavily on the Court of Appeals' conclusion that the differentials represented impermissible variations in price based on the use of milk. The Connecticut differentials, however, remain constant in amount. Another example is that the Secretary attempted to justify the New York-New Jersey differentials as "adjustments for the locations at which delivery of such milk is made." No such attempt is made here by the Secretary. Instead the Secretary squarely places his reliance on "market differentials customarily applied by the handlers." Despite the differences in fact, this Court recognizes that its holding is based on conclusions which are contrary to those reached in Blair. The Court is indeed reluctant to disagree with such a distinguished court as the Court of Appeals for the District of Columbia and does so only with the greatest respect and deference. But while the Court agrees with the Court of Appeals for the District of Columbia that the uniform price requirement was designed to eliminate ruinous competition for the fluid milk market, it cannot accept the Court of Appeals' conclusion that the requirement prohibits recognition of the historic fact that farmers located in particular areas near the market were accorded a greater share of that market. Similarly, the Court agrees with the Court of Appeals that Congress was concerned in 1935 with the delegation problem and attempted to make the provisions of the Act specific. But the fact remains, as noted in Green Valley Creamery, Inc. v. United States, supra, at 345, that the phrase "market differential" remains undefined in the Act. And while the court in Blair, at 238, concluded that "[t]he `market differential' rationale is plainly not a tenable basis for the nearby differential" because "it is plain that this type of allowance turns not on the location of the producer's farms but on the nature of the market to which they deliver their milk," the court in Green Valley Creamery, just several years after the provision's enactment, *809 held squarely to the contrary.[10] Therefore, faced with conflicting authority and an action involving an independent order and separate differentials, the Court believes it is justified, for the reasons it has previously attempted to develop, in holding that farm location differentials are authorized by the Act as market differentials. The plaintiffs in Allen v. Freeman, supra, attacked the farm location differentials contained in the Massachusetts-Rhode Island Milk Marketing Order, 7 C.F.R. § 1001 (1968). The District Court for the District of Columbia granted plaintiffs' motion for summary judgment, without opinion, on the basis of the Blair decision; that judgment has now been affirmed by the Court of Appeals for the District of Columbia. Zuber v. Allen, supra. As to this decision, nothing need be added to what has already been said with respect to the decision in Blair. CLAIM OF UNCONSTITUTIONAL DISCRIMINATION Another claim made by plaintiffs is that the Connecticut farm location differentials are unconstitutionally discriminatory because they result in certain farmers receiving more for their milk than others. If the differentials were paid without reference to any rational basis, this claim would be correct. But the Act authorizes such differentials only if they have been customarily paid, and customary payment is alone a sufficient rationale for continued payment under a scheme of regulation. Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 616-18 (1950). Therefore, a critical question with respect to both the authorization of the Connecticut farm location differentials and the issue of discrimination is whether the evidence before the Secretary supported the Secretary's findings that the differentials were customarily paid in the Connecticut area and that their continued payment would tend to effectuate the policies of the Act. CLAIM OF INSUBSTANTIAL EVIDENCE After an extensive review of the voluminous record of the administrative hearings held in connection with the promulgation of the Connecticut Milk Marketing Order, the Court is of the opinion that the evidence before the Secretary in support of his findings that farm location differentials were customarily paid in the Connecticut area and that their continued payment would tend to effectuate the policies of the Act was substantial and fully justified those findings. In 1958, a proposed federal milk marketing order for the Connecticut market was considered in hearings held at Hartford, Connecticut. The proposed order included a farm location differentials provision. Dr. C. W. Swonger, an economist for the New England Milk Producers' Association, testified at length concerning the differentials— their basis and the need for them. Hearing Record, 1958 Basic Connecticut Promulgation Proceeding 1261-69 (hereafter, 1958 H.R.). He demonstrated how "producers located near the market have been able to obtain prices for their milk higher than could be explained solely on the basis of handling and transportation costs." 1958 H.R. 1267. With specific reference to the Connecticut market, Dr. Swonger stated that "[d]espite the competition of unregulated milk, and the lack of any control over prices paid for such milk, nearby producers in Connecticut have continued to receive blended prices higher than those paid to nearby producers in Boston, and from 1 to 2 cents per quart higher than the freight and handling costs reflected in the Class I and blend price differentials." 1958 H.R. 1264-65. The reasons that these differentials existed, according to Dr. Swonger, were the availability of alternative marketing *810 opportunities to nearby producers, greater evenness of production in the nearby area, historical pricing patterns, and the need for alignment with the various neighboring, competing New England and Middle Atlantic markets. 1958 H.R. 1962-65. In addition, as pointed out by George C. Dudley, a dairy farmer and chairman of the dairy commodity committee of the Connecticut Farm Bureau Association, Connecticut farmers had higher taxes and other costs. 1958 H.R. 554. After presenting a number of exhibits showing the historic price differential paid in the Connecticut market, Dr. Swonger stated: "These exhibits bear out the fact that producers located near the market have been able to obtain prices for their milk higher than could be explained solely on the basis of handling and transportation costs. The differentials have probably been wider than can be maintained under present marketing conditions. There may be groups in Northern New England or New York who will argue for `no differential' in excess of handling and transportation costs, and other groups in southern New England who will argue that the differentials have not been high enough. We say merely that a substantial differential has existed, and that this fact has to be recognized under any federal order." 1958 H.R. 1267-68. It is relevant in considering Dr. Swonger's testimony that he did not simply propose farm location differentials in isolation but as part of an integral plan designed to achieve equitable results for all producers. Dr. Swonger did not feel qualified to testify with respect to the "specific definition of the differential areas." As he stated: "Such testimony must come from those in Connecticut who are more familiar with the nearby supply area and the relative prices paid to producers. The definition of the differential areas depends not on political boundaries, but on the competitive pressure of other markets seeking milk in the same area. In general, the boundaries should be drawn in such a way as to affect the fewest number of neighboring producers, in much the same way as the boundaries of a marketing area are defined to `minimize competition' between regulated and unregulated handlers." 1958 H.R. 1268-69. Testimony as to what the specific differential areas should be was provided by Fred S. Raymond, Director of the Cooperative Dairy Economic Service (1958 H.R. 623-32), Kenneth E. Geyer, General Manager of the Connecticut Milk Producers Association, and others. Mr. Geyer testified that "the Hudson River and the Massachusetts Turnpike and its New York extension" would be proper boundaries "closely conform[ing] to the Connecticut direct delivery milkshed area." 1958 H.R. 1312. The direct delivery milkshed area is that area from which milk is delivered directly to Connecticut handlers rather than to plants outside of the state from where the milk must be transshipped. Not only Mr. Geyer but the other witnesses analyzed the differential in terms of nearby direct delivery areas. The Secretary's 1959 Final Decision affirmed the need for farm location differentials on the basis of the prior hearing, making certain changes in the areas covered by the proposed differentials so that they would conform to what had been suggested by the witnesses. 24 Fed. Reg. 1049, 1063 (1959). The differentials as modified were included in the first federal Connecticut order promulgated at the time of this Final Decision. The differentials were reviewed at hearings held in 1959 and 1963 and reaffirmed in 1960 and 1964 on the original basis. The Court is completely satisfied that the Secretary's finding that the differentials were customarily paid is supported by substantial evidence. Therefore, the differentials are authorized by *811 the Act as market differentials customarily paid and are not unconstitutionally discriminatory. Furthermore, substantial evidence supports the Secretary's findings that the employment of the differentials "will tend to promote orderly marketing in the milkshed." Id. The differentials are therefore a valid provision of the Connecticut order. Section 8c(4) of the Act. CONCLUSION The Court concludes that this action presents a justiciable controversy over which the Court has jurisdiction. Plaintiffs and defendant-interveners are properly representative of the classes of dairy farmers previously designated by the Court. The Court further concludes that the farm location differentials in the Connecticut Milk Marketing Order, 7 C.F.R. § 1015.72 (1968), are authorized by Section 8c(5) (B) of the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 608c(5)(B), and are otherwise legal and valid provisions of that Order. Therefore the Court denies a permanent injunction enjoining the Secretary of Agriculture from continuing the differentials and directs that judgment be entered in favor of defendant and defendant-interveners. This Memorandum of Decision, together with separately stated Findings of Fact and Conclusions of Law, constitute the Court's findings of fact and conclusions of law pursuant to Rule 52, Fed.R. Civ.P. Plaintiffs' motions to strike evidence, including renewal of motions made at the trial and motions which they were granted leave to file subsequent to trial, have been carefully considered. The Court denies the motions insofar as they are directed at evidence which supports the Court's findings of fact and conclusions of law made herein pursuant to Rule 52, Fed.R.Civ.P.; in all other respects, the motions are dismissed as moot. Since this is a class action and judgment therefore will bind all members of plaintiffs' class, the Court deems it advisable to direct the Clerk to delay entry of judgment in favor of defendant and defendant-interveners for a period of fifteen days and to direct that within that period plaintiffs' counsel shall mail to all members of plaintiffs' class notice of the Court's decision, together with an explanation of the effect thereof and a statement as to whether plaintiffs intend to prosecute an appeal. If plaintiffs do not intend to prosecute an appeal, notice must be given of the means by which members of the class may seek leave to file such an appeal and the time limit involved. Furthermore, since this is an action for an injunction, entry of judgment automatically and immediately will terminate the preliminary injunction granted by order of this Court, Foley, C. J., on March 9, 1967, unless the Court directs otherwise. Rule 62(a), Fed.R.Civ.P. Therefore, in order fully to protect the rights of all parties and to maintain the status quo to permit an appeal, the Court orders that the preliminary injunction granted on March 9, 1967 shall continue in force until entry of judgment and thereafter for a period of sixty days upon such terms and conditions as contained in the order of March 9, 1967, unless otherwise directed by the Court. If within sixty days a notice of appeal is filed, the preliminary injunction shall continue in force during the pendency of the appeal unless dissolved or modified by the appropriate court. ORDER ORDERED as follows: (1) That the Court's orders of October 20, 1967 with respect to maintenance of this action as a class action by plaintiffs and defendant-interveners are affirmed in all respects, except that Roy E. Ottman and George Mesick, Jr. are eliminated as named plaintiffs. (2) That all motions to strike evidence, insofar as they are directed at evidence which supports the Court's findings of fact and conclusions of law herein pursuant to *812 Rule 52, Fed.R.Civ.P., are denied; in all other respects, the motions to strike evidence are dismissed as moot. (3) That upon the expiration of fifteen days the Clerk shall enter final judgment in favor of defendant and defendant-interveners dismissing plaintiffs' complaint with costs. (4) That plaintiffs' counsel within fifteen days shall mail to each member of plaintiffs' class a notice of this Court's decision herein, together with an explanation thereof and a statement as to whether plaintiffs will prosecute an appeal. In the event that plaintiffs do not intend to appeal, notice must also be given as to the means by which members of plaintiffs' class may seek leave to file such an appeal and the time limit involved. (5) That the preliminary injunction granted pursuant to an order of this Court dated March 9, 1967 shall continue in effect until entry of judgment and thereafter for a period of sixty days under such terms and conditions as contained in the Court's order of March 9, 1967, unless the Court directs otherwise. (6) That if a notice of appeal is filed in this action within sixty days after entry of judgment, the preliminary injunction granted on March 9, 1967 shall continue thereafter during the pendency of the appeal subject to dissolution or modification at any time by the appropriate court. FINDINGS OF FACT AND CONCLUSIONS OF LAW The Court, after full hearing, makes the following Findings of Fact and Conclusions of Law which, together with the Court's Memorandum of Decision filed herein, constitute the Court's findings of fact and conclusions of law pursuant to Rule 52, Fed.R.Civ.P. FINDINGS OF FACT 1. Plaintiffs are four dairy farmers (milk producers) located in New York State. They bring this action individually, and as representatives of the class of approximately 250 milk producers who do not receive "farm location differentials" pursuant to Section 1015.72(a) of the Connecticut Milk Marketing Order regulating the handling of milk in the Connecticut milk marketing area, 7 C.F. R. § 1015 (1968). 2. Three other dairy farmers located in Connecticut and Massachusetts were permitted to intervene as defendants on behalf of themselves as individuals, and as representatives of the class of approximately 3000 milk producers receiving farm location differentials pursuant to Section 1015.72(a) of the Connecticut Marketing Order. 3. Plaintiff Cranston for eight years has been opposed to the Connecticut farm location differentials. In 1966, Cranston discussed with his long-time friend and neighbor, attorney John P. Weatherwax, the possibility of bringing legal proceedings to challenge the differentials. On January 27, 1967, after Cranston, French and Carlson definitely had decided to commence an action, Cranston was informed by the Consolidated Milk Producers' Association (CMPA), formerly Connecticut Milk Producers' Association, that CMPA would reimburse members for reasonable expenses incurred in maintaining or defending an action involving the validity of the farm location differentials. CMPA, a democratic organization, was motivated by the fact that its members included both those who did, and those who did not, receive the differentials and by the fact that great uncertainty surrounded the differentials. Cranston informed CMPA that he had his own attorney, Mr. Weatherwax. The Association official told Cranston that he would like to check the attorney out as to his reputation since the Association was concerned that both sides should be well represented by competent attorneys. CMPA's official position favors the differentials, *813 and a majority of its members receive them. CMPA's counsel represents defendant-interveners. CMPA officials, plaintiffs, and plaintiffs' attorney met once prior to the commencement of this action. 4. Neither defendant nor defendants' counsel knew that this action would be instituted prior to its actual institution, nor did they have any contact with plaintiffs or plaintiffs' counsel prior to the institution of this action. 5. CMPA at no time has influenced, attempted to influence or in any way affected or controlled plaintiffs' conduct of this action. Nor have defendant-interveners or defendant attempted to exercise control over or to influence plaintiffs' conduct of this suit. 6. Plaintiffs and defendant-interveners faithfully, earnestly and forthrightly have represented the interests of their respective classes. The attorneys for each class likewise have acted in a thoroughly professional and expert manner. The entire record indicates that this action has been conducted as an adversary proceeding on the highest level. In short, plaintiffs and defendant-interveners have represented the members of their respective classes fairly and adequately. 7. The complaint, filed on February 9, 1967, alleges the invalidity, on several grounds, of certain farm location differentials included by the Secretary of Agriculture in the Connecticut Milk Marketing Order under the authority of the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 601, et seq. 8. The challenged provision results in producers whose farms are located in two specified geographical areas receiving a differential over and above the uniform price for milk, of 46¢ and 23¢ per hundredweight, respectively, for their milk which is priced under the Order, depending upon the designated area in which their farms are located. The Order describes the marketing area as follows: "§ 1015.2 Connecticut marketing area. `Connecticut marketing area', referred to in this part as the `marketing area', means all territory within the State of Connecticut, together with all waterfront facilities connected therewith and craft moored thereat, and all territory therein occupied by government (municipal, State or Federal) installations, institutions or other establishments." The Order sets forth the provisions relating to the farm location differentials, including the areas affected, as follows: "§ 1015.72 Farm location differentials. (a) In making payments to producers for milk received from a farm located in Connecticut, Rhode Island, in that portion of New York State east of the Hudson River and south of the Berkshire Section of the New York State Thruway, or in that portion of Massachusetts south of the Massachusetts Turnpike, there shall be added 46 cents per hundredweight. (b) In making payments to producers for milk received from a farm located outside the area described in paragraph (a) of this section, but within that portion of New York State east of the Hudson River and south of the northern boundaries of North Greenbush, Sand Lake, and Stephentown townships in Rensselaer County, and within that portion of Berkshire County, Massachusetts north of the Massachusetts Turnpike, there shall be added 23 cents per hundredweight." 9. In accordance with the provisions of the Act, the Secretary of Agriculture promulgated the Connecticut Milk Marketing Order, including the challenged provision, partially effective on March 1, 1959, and fully effective April 1, 1959, following notice, public hearing, findings based on the evidence introduced at the hearing, and a favorable referendum among producers supplying the proposed marketing area. 10. The Final Decision published by the Secretary incident to the promulgation of the Order on February 11, 1959, *814 discloses that the Secretary included the "farm location differential" provisions under his authority to make adjustments to the uniform producer price contained in Section 608c(5)(B)(ii) of the Act as an adjustment for "market differentials customarily applied by handlers." 11. The Secretary of Agriculture, in subsequent findings based on evidence adduced at subsequent public hearings, reaffirmed and rejustified his original findings of February 1959, with respect to the economic necessity for and the validity of the "farm location differential" provisions in the Connecticut Milk Marketing Order. 12. Where the circumstances warranted it, the Secretary of Agriculture has included provisions in other marketing orders for preferential payments to producers based solely on the location of their farms nearby the market. 13. Federal price regulation of milk was first authorized by the Agricultural Adjustment Act of 1933. This Act provided for marketing agreements and for the issuance of licenses by the Secretary of Agriculture regulating the pricing of milk to producers by handlers. Pursuant to this authority, the Secretary of Agriculture issued many licenses regulating the handling and pricing of milk throughout the United States in the areas described in the licenses. 14. Among the stated purposes of the amendments in 1935 to the Agricultural Adjustment Act, as they affected milk, were those which were designed to reinforce the existing practices of cooperative associations and to carry forward the methods employed under licenses issued pursuant to the 1933 Act. They were also intended to adopt the present practices of business. These amendments, among others, provided for the adjustments to the uniform producer price for "volume, market and production differentials customarily applied by handlers." 15. Prior to 1933, cooperative associations, as a part of their voluntary methods of pricing milk to producers, gave preferential treatment to nearby producers. This practice also was reflected in the licenses issued under the Agricultural Adjustment Act of 1933. The practice of giving preferential price treatment to producers whose farms were located nearby the market was carried over in some orders issued following the 1935 amendments. 16. The Agricultural Marketing Agreement Act of 1937, re-enacted the provisions, as they affected milk marketing orders, of the 1935 amendments to the Agricultural Adjustment Act. Section 4 of the 1937 Act expressly validated existing orders, regulations issued pursuant thereto, and the acts of the Secretary in connection with licenses and orders issued under the AAA. The Conference Committee Report incident to the amendatory legislation expressly stated that Section 4 was to remove all doubts about the validity of actions of the Secretary as reflected in existing orders. 17. The draftsman of the language of Section 608c(5)(B)(ii) considered the terms "volume, market and production differentials customarily applied by handlers" as embracing the existing practices of cooperatives and the existing methods of licenses which gave recognition to many and varied differentials which could be described as associated with the words "volume", "marketing" and "production" practices. 18. There were in existence in the various marketing areas in 1935 many different differentials which could be described as based upon or associated with "volume", "market", and "production". 19. The language in the Committee reports dealing with marketing orders which accompanied the AAA of 1935, when read in its entirety, discloses that, in order to reinforce the many and varied existing practices of cooperative associations and the methods employed in licenses in pricing producer milk, the words "volume", "market", and "production", as used to describe differentials in Section 608c(5)(B)(ii), were descriptive of types of differentials. *815 20. Among the existing differentials practiced by cooperatives and employed in licenses were those which gave preferential price treatment to producers based upon the location of their farms nearby the market. This type of differential is within the category of "market differentials customarily applied by handlers". 21. There has been no showing by plaintiffs that the differentials established by Section 1015.72(a) and (b) prohibit the movement of their milk into the Connecticut marketing area or that such differentials otherwise constitute a "trade barrier" within the meaning of Section 608c(5)(G) of the Act. 22. The administrative record contains substantial evidence to justify the Secretary's promulgation of a nearby differential in the Connecticut Milk Marketing Order. CONCLUSIONS OF LAW 1. This is an adversary action presenting justiciable issues over which this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331(a), 1337, 2201-02, 5 U.S. C. §§ 701-06 and 7 U.S.C. § 601, et seq. Venue is properly laid in this District pursuant to 28 U.S.C. § 1391(e). 2. This is a proper class action pursuant to Rule 23(a) and (b)(1)(B), Fed.R.Civ.P., with respect to plaintiffs' and defendant-interveners' classes as set forth in this Court's orders of October 20, 1967. 3. The farm location differentials contained in Sections 1015.72(a) and (b) of the Connecticut Milk Marketing Order, 7 C.F.R. § 1015 (1968), are market differentials customarily paid by handlers subject to the Order and as such are authorized pursuant to Section 608c (5)(B) of the Agricultural Marketing Agreement Act of 1937, as amended, 7 U.S.C. § 601, et seq. 4. The farm location differentials are not "trade barriers" and do not violate Section 608c(5) (G) of the Act. 5. The farm location differentials are not unconstitutionally discriminatory. 6. The Secretary's findings with respect to the inclusion of the farm location differentials in the Connecticut Order are supported by substantial evidence in the administrative record. MEMORANDUM ORDER ON MOTION TO DISQUALIFY A JUDGE BY AN APPLICANT SEEKING TO INTERVENE JULY 26, 1968. A motion having been filed on July 17, 1968, pursuant to 28 U.S.C. § 144, to disqualify the undersigned judge from proceeding further herein; and It appearing that the motion to disqualify purports to be supported by an affidavit made by one Kenneth Hewitt who is not a party to this proceeding but merely an applicant seeking to intervene; and It further appearing that the certificate of counsel signed by one Charles P. Ryan, Esq., of Washington, D. C., asserting that the motion and affidavit are made in good faith, is not a certificate of counsel of record, said attorney Ryan being neither a member of the bar of this Court nor counsel of record, and no certificate of good faith having been made by applicant's counsel of record, Sanford Rosenblum, Esq., who is a member of the bar of this Court; and It further appearing that the trial of this case began on August 10, 1967 and the instant motion to disqualify was filed more than eleven months later, on July 17, 1968; and The undersigned being of the opinion that the said motion to disqualify should be denied as utterly frivolous, for the reasons (1) That the said motion is not made by, nor is it supported by an affidavit by, a party to this proceeding as required by 28 U.S.C. § 144. (2) That the said motion is not accompanied by a certificate of good faith by counsel of record as required by 28 U.S.C. § 144. *816 (3) That the said motion is not timely, having been filed more than eleven months after the trial began rather than ten days before the beginning of the term at which the proceeding was to be heard as required by 28 U.S.C. § 144. (4) That—even assuming (contrary to fact) that the motion was timely, that it was made by and supported by an affidavit by a party to the proceeding, and that it was accompanied by a certificate of good faith by counsel of record—the affidavit in support of the instant motion is insufficient as a matter of law to show the personal bias or prejudice required for disqualification under the statute, because (a) Solely for the purposes of the instant motion, pursuant to 28 U.S.C. § 144, the facts alleged in the affidavit in support of the motion to disqualify have been taken as true; the inquiry is confined to their legal sufficiency. Berger v. United States, 255 U.S. 22 (1921); Rosen v. Sugarman, 357 F.2d 794, 797 (2 Cir. 1966). (b) To be sufficient, an affidavit must show personal bias or prejudice on the part of the judge in the sense of giving "fair support to the charge of a bent of mind that may prevent or impede impartiality". Berger v. United States, supra, at 33-34; Rosen v. Sugarman, supra, at 798. Put another way, an affidavit of prejudice to be sufficient must state with particularity facts which "would fairly convince a sane and reasonable mind that the judge does in fact harbor the personal bias or prejudice contemplated by the statute". United States v. Hanrahan, 248 F.Supp. 471, 475 (D.D.C.1965). (c) Disqualification is warranted and appropriate only if the alleged bias and prejudice stems from an extra-judicial source and has resulted in the formulation of an opinion on the merits not based upon what the judge has learned by his participation in the proceedings before him. United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). (d) The affidavit in support of the motion to disqualify in the instant case shows at most that legal rulings by the judge during the course of proceedings herein have incurred the displeasure of an applicant seeking leave to intervene, as well as the displeasure of his counsel who is neither a member of the bar of this Court nor counsel of record herein. United States v. Devlin, 284 F.Supp. 477, 481-82 (D.Conn.1968); United States v. Richmond, 178 F.Supp. 44, 46 (D.Conn.1958) (opinion by J. Joseph Smith, D. J.); United States v. Valenti, 120 F.Supp. 80, 84 (D.N.J. 1954). (e) The affidavit in support of the instant motion being legally insufficient, disqualification would be improper. A judge is duty-bound not to disqualify himself upon insufficient grounds. Only in this way can the Court safeguard itself from such a frivolous attack as has been here attempted. Rosen v. Sugarman, supra; United States v. Devlin, supra, at 482; United States v. Richmond, supra, at 48; In re Union Leader Corp., 292 F.2d 381, 391 (1 Cir.), cert. denied, 368 U.S. 927 (1961); Mirra v. United States, 255 F.Supp. 570, 583 (S.D.N.Y. 1966), aff'd, 379 F.2d 782 (2 Cir.), cert. denied, 389 U.S. 1022 (1967); United States v. Hanrahan, supra, at 475; United States v. Valenti, supra, at 83, and cases cited at n. 2. it is therefore Ordered that the said motion filed July 17, 1968, pursuant to 28 U.S.C. § 144, to disqualify the undersigned judge from proceeding further in the above-captioned case be, and the same hereby is, denied as utterly frivolous. NOTES [*] Chief Judge of the District of Connecticut, sitting by designation. [1] Since commencement of the action, Roy E. Ottman and George Mesick, Jr., two of the six persons who originally brought the action, have sought leave to withdraw as plaintiffs. [2] The Court's order of April 22, 1968 provided for the immediate availability of the record at the Albany seat of Court. At the time the order was entered, the undersigned was sitting by designation in the Southern District of New York, while the record was located at Bridgeport, Connecticut, the undersigned's official station. It was not until May 6, 1968, when the undersigned's assignment in the Southern District of New York was completed, that the undersigned was able to return to Bridgeport to pack the record, comprising numerous cartons, for shipment to Albany. The undersigned, however, is completely satisfied that all who desired to examine the record were aware of its availability after May 9, 1968 and had ample opportunity to study it. No prejudice resulted from the delay. [3] Three members of plaintiffs' class have asked to be excluded therefrom and plaintiffs' counsel has asked the Court to grant this request. The action, however, is a class action pursuant to Rule 23(b)(1)(B), Fed.R.Civ.P., and, unlike a class action pursuant to Rule 23(b) (3), an otherwise proper member of the class cannot be excluded simply because he expresses such a desire. The Court, however, does modify its order of October 20, 1967 with respect to the maintenance of this action as a class action by plaintiffs to the extent of eliminating as named plaintiffs, Roy E. Ottman and George E. Mesick, Jr., who have signified their desire to withdraw as plaintiffs. [4] Section 8c(5) of the Act, 7 U.S.C. § 608c(5), governing the issuance of milk marketing orders, provides in relevant part as follows: "In the case of milk and its products, orders issued pursuant to this section shall contain one or more of the following terms and conditions, and (except as provided in subsection (7) of this section) no others: (A) Classifying milk in accordance with the form in which or the purpose for which it is used, and fixing, or providing a method for fixing, minimum prices for each such use classification which all handlers shall pay, and the time when payments shall be made, for milk purchased from producers or associations of producers. Such prices shall be uniform as to all handlers, subject only to adjustments for (1) volume, market, and production differentials customarily applied by the handlers subject to such order, (2) the grade or quality of the milk purchased, and (3) the locations at which delivery of such milk, or any use classification thereof, is made to such handlers. (B) Providing: (i) for the payment to all producers and associations of producers delivering milk to the same handler of uniform prices for all milk delivered by them * * *; or (ii) for the payment to all producers and associations of producers delivering milk to all handlers of uniform prices for all milk so delivered, irrespective of the uses made of such milk by the individual handler to whom it is delivered; subject, in either case, only to adjustments for (a) volume, market, and production differentials customarily applied by the handlers subject to such order, (b) the grade or quality of the milk delivered, (c) the locations at which delivery of such milk is made, and (d) a further adjustment, equitably to apportion the total value of the milk purchased by any handler, or by all handlers, among producers and associations of producers, on the basis of their marketings of milk during a representative period of time. (C) In order to accomplish the purposes set forth in paragraphs (A) and (B) of this subsection, providing a method for making adjustments in payments, as among handlers (including producers who are also handlers), to the end that the total sums paid by each handler shall equal the value of the milk purchased by him at the prices fixed in accordance with paragraph (A) of this subsection. * * * * * (G) No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States." (The 1965 amendment to Section 8c(5) (B) does not affect the instant case.) [5] H.R.Rep.No. 1241, 74th Cong., 1st Sess. 8 (1935), issued in connection with the 1935 amendments to the Agricultural Adjustment Act of 1933, states that, "To eliminate questions of improper delegation of legislative authority raised by the decisions in Schechter, et al. v. United States, the provisions relating to orders enumerate the commodities to which orders issued by the Secretary of Agriculture may be applicable, prescribe fully the administrative procedure to be followed by the Secretary in issuing, enforcing and terminating orders, and specify the terms which may be included in orders dealing with the enumerated commodities." [6] Section 8c(3) provides: "Whenever the Secretary of Agriculture has reason to believe that the issuance of an order will tend to effectuate the declared policy of this chapter with respect to any commodity or product thereof specified in subsection (2) of this section, he shall give due notice of and an opportunity for a hearing upon a proposed order." Section 8c(4) provides: "After such notice and opportunity for hearing, the Secretary of Agriculture shall issue an order if he finds and sets forth in such order, upon the evidence introduced at such hearing (in addition to such other findings as may be specifically required by this section) that the issuance of such order and all of the terms and conditions thereof will tend to effectuate the declared policy of this chapter with respect to such commodity." [7] Justice Frankfurter in his dissenting opinion in Stark v. Wickard, 321 U.S. 288, 315 (1944), noted that the Act was "devised by those who know the needs of the industry and drafted by legislative specialists * * *." [8] In Brannan v. Stark, 342 U.S. 451, 465-66 (1952), the Supreme Court was presented with the argument that Section 4 of the Act validated all provisions in future orders which were similar to provisions in orders existing at the time of passage of the 1937 Act. The Supreme Court, in holding that a particular type of payment to cooperatives was unauthorized by the Act, stated that "[e]ven if we were to accept the proposition that Congress there intended to confer statutory authority for all future provisions like any of those then existing in any marketing order, we would reach the same conclusion because neither the provisions for these particular payments nor any closely analogous provisions were at that time present in any marketing orders." The situation is different here where the equivalent of farm location differentials was contained in an order in effect when the 1937 Act was passed. Furthermore, this Court in no way accepts the proposition that Section 4 automatically validates the inclusion of farm location differentials in any order. The Court simply is of the opinion that Section 4 represents Congressional reiteration of its intent to authorize the inclusion of farm location differentials in orders governing marketing areas where such differentials have customarily been paid. [9] The Supreme Court apparently approves of the First Circuit's view of the proper scope to be accorded the term "market differential". In Brannan v. Stark, 342 U.S. 451, 466 (1952), the Supreme Court found a certain type of payment to producers' associations unauthorized by any provision of the Act but stated that: "Many provisions for payments to cooperatives appearing in other orders have been of a kind specifically authorized by the statute. Thus, the provision of the first Boston Milk Order for a price differential as between cooperative milk and noncooperative milk was upheld in Green Valley Creamery v. United States, as a `market differential' authorized by § 8c(5) (A) (1)." (footnote omitted) [10] If the Blair court's definition of market differentials were followed, it necessarily would mean that the double set of minimum prices upheld in Green Valley Creamery and cited with approval by the Supreme Court in Brannan v. Stark, 342 U.S. 451 (1952), also would be invalid. See supra note 9.

557 So.2d 630 (1990) Archie BOLDEN, Appellant, v. STATE of Florida, Appellee. No. 89-757. District Court of Appeal of Florida, First District. February 26, 1990. *631 Michael E. Allen, Public Defender, and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant. Robert A. Butterworth, Atty. Gen., and William A. Hatch, Asst. Atty. Gen., Tallahassee, for appellee. THOMPSON, Judge. Bolden appeals a trial court order denying his motion for credit on his sentence for all gain-time awarded during his prior incarceration for the crime in which he has now received a sentence for violation of probation. We reverse. In January 1987, Bolden pleaded nolo contendere to a grand theft charge and was placed on probation for two years. The following June an affidavit alleging violation of probation was filed. On November 2, 1987, he admitted the violation and was subsequently sentenced to two years in prison followed by one year probation. Shortly after Bolden's release from prison, another affidavit was filed alleging violation of probation in that he failed to report to his probation officer, or to pay his supervision fees, court costs, restitution, and attorney's fees. The affidavit further alleged Bolden's failure to perform community service and that he committed burglary with assault and simple battery. On January 17, 1989, Bolden admitted the allegations, his probation was revoked, and he was sentenced to five years in prison with 234 days credit for the time he was actually incarcerated. On February 1, 1989, Bolden filed a Fla. R.Crim.P. 3.800 motion to correct his sentence asserting that under the recent decision of this court in Green v. State, 539 So.2d 484 (Fla. 1st DCA 1988) (Green I), he was entitled to credit for gain-time earned during his prior incarceration. On March 13 the trial court entered an order which interpreted Green I to mean that credit for gain-time was limited to incentive gain-time. The court directed that Bolden be given credit for all days he actually served in county jail before he was committed to prison, the amount of time he actually served in prison on the original sentence, and the amount of gain-time he actually earned while in prison as computed by the Department of Corrections plus the number of days he actually served in county jail after he was arrested on the warrant for violation of probation up to the date of his second sentence. At the time of his decision, the trial judge did not have the benefit of the subsequent supreme court decision in State v. Green, 547 So.2d 925 (Fla. 1989), decided September 15, 1989. In this decision, the supreme court held: A prisoner who is released early because of gain-time is considered to have completed his sentence in full. See § 944.291, Fla. Stat. (1987). Receipt of gain-time is dependent on a prisoner's behavior while in prison, not on satisfactory behavior once the prisoner has been released from incarceration. Therefore, accrued gain-time is the functional equivalent of time spent in prison. Id. at 926. The supreme court went on to hold that although Green was released early, the incarcerative portion of his split sentence was completed, and upon resentencing after violating his probation Green was clearly entitled to credit for his total sentence, including all gain-time. The supreme court found that the trial court erred in counting as time served only the time Green actually spent in prison, and that this denial of credit for gain-time already accrued was essentially a retroactive forfeiture of gain-time. Under this decision, a prisoner who has served a prior *632 sentence and been released and placed on probation is entitled to credit, not only for the time he was actually incarcerated on the prior sentence, but also all gain-time that he earned prior to his release when he is sentenced for violation of probation imposed as a part of that prior sentence. Bolden also claims that he received an illegal split sentence and that the trial court erred in failing to provide written reasons for departure. However, no appeal was taken from the judgment and sentence imposed and these alleged errors cannot be considered by this court on appeal from an order on a motion in which these issues were not raised. REVERSED and REMANDED for resentencing in accord with the holding of this case. BARFIELD, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

282 So.2d 342 (1973) Bob BRAZELTON v. STATE. 8 Div. 342. Court of Criminal Appeals of Alabama. June 29, 1973. *343 Roger H. Bedford, Russellville, for appellant. William J. Baxley, Atty. Gen., and Barry E. Teague, Asst. Atty. Gen., for the State. CATES, Presiding Judge. Brazelton appeals from eight nonjury convictions of having, with knowledge of its content, exhibited, commercially distributed, given away or offered to do so, or possessed with intent to sell, etc., obscene printed or written material known by him to have been judicially found to be obscene. See Act No. 856 approved September 8, 1961, particularly § 4(2). In each case he was fined $500.00 and sentenced to six months imprisonment in the county jail. The jail sentences were to run concurrently. The parties stipulated, inter alia, "11. That there had been a prior adversary hearing on the obscenity of the publication vel non before the issuance of the warrant and the arrest of the defendant in each case, although the defendant does not admit the constitutional adequacy of said proceedings. "12. That there has been an equitable proceeding as provided under Title 14, Section 374(5) of the Code of Alabama of 1940, as amended, before the issuance of the warrant and the arrest of the defendant." The offending printed matter consisted, in seven of the cases, of books of mainly female genital pictures and in the eighth of a paperback book devoted to descriptions (and little else) of copulation and what under Code 1940, T. 14, § 106 comes within the crime against nature. We have reviewed the entire record under Code 1940, T. 15, § 389. Under Miller v. California, ___ U.S. ___, 93 S.Ct. 2607, 37 L.Ed.2d 419 and Kaplan v. California, U. S. ___, 93 S.Ct. 2680, 37 L. Ed.2d 492, we think the standard laid down in Jones v. City of Birmingham, 45 Ala.App. 86, 224 So.2d 922, as to the scope of the community being the venue from which the jury venire comes is applicable here. That is, the standards of Madison County as to what is or is not obscene. Of this, the judge as sole trier of fact could take notice although, if controverted, the defendant must be allowed to give proof. Ohio Bell Tel. Co. v. Public Utilities Comm., 301 U.S. 292, 57 S.Ct. 724, 81 L. Ed. 1093 and cases cited in Glisson v. State, 43 Ala.App. 700, 200 So.2d 493. The genitalia picture books are quite like those in McKinney v. State, 287 Ala. 648, 254 So.2d 714. The paperback is within the influence of Kaplan v. California, supra. Noting the allegation of the Brazelton's knowing that the matter had been judicially obscene, we consider that this element from the statute, supra, is to supply scienter. Perhaps a Dr. Johnson or a John Stuart Mill would be aware of the content of every book in his library. However, such omniscience should not be attributable to every bookseller. Hence, the importance of prior warning. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L.Ed.2d 584. Here Brazelton had open to him the right to appeal from the civil proceeding referred in stipulation No. 11, supra. Since the stipulation treats the determination as a fact, this fact became sufficient to support the trier of facts (here the trial judge) in his finding sub judice, inter alia, *344 that Brazelton knew of the prior adjudication. We consider that the judgment below is due to be Affirmed. All the Judges concur.

788 F.Supp. 1232 (1992) Janad F. SALEH, Petitioner, v. Bernard L. BRAXTON, Respondent. Civ. A. No. 92-0517 (GHR). United States District Court, District of Columbia. March 4, 1992. Janad F. Saleh, pro se. Bernard L. Braxton, pro se. ORDER REVERCOMB, District Judge. Petitioner, who is presently incarcerated at the District of Columbia correctional facility at Lorton, Virginia, seeks a writ of habeas corpus under 28 U.S.C. § 2254. The grounds alleged are failure to provide a timely or adequate revocation hearing, and ineffective assistance of counsel at a preliminary parole hearing. Petitioner was incarcerated pursuant to a sentence imposed by the Superior Court for the District of Columbia upon a guilty plea. Because this Court lacks jurisdiction to entertain the petition, the petition will be dismissed. Section 2254 provides, in pertinent part: (b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process of the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. (c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented. Although the District of Columbia is not a state, Congress has provided prisoners incarcerated pursuant to a Superior Court sentence with a local remedy in District of Columbia Code § 23-110. This section provides that prisoners may collaterally challenge the legality of their sentence directly in the Superior Court and, if they are unsuccessful there, by appeal to the D.C. Court of Appeals. See Garris v. Lindsay, 794 F.2d 722, 725 (D.C.Cir.1986). The court of appeals has further declared that "a District of Columbia prisoner has no recourse to a federal judicial forum unless the local remedy is `inadequate or ineffective to test the legality of his detention.'" Id. Section 23-110 has been found to be adequate and effective because it is coextensive with habeas corpus. See id.; Swain v. Pressley, 430 U.S. 372, 377-82, 97 S.Ct. 1224, 1227-30, 51 L.Ed.2d 411 (1977). Petitioner's recourse, therefore, lies in the first instance in the D.C. Superior Court; this Court lacks jurisdiction to hear his petition. Accordingly, the petition is DISMISSED, sua sponte. SO ORDERED.

168 Pa. Superior Ct. 1 (1950) Commonwealth v. Cramer, Appellant. Superior Court of Pennsylvania. Argued October 5, 1950. November 14, 1950. *2 Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ. John Patrick Walsh, with him Leon Rosenfield, for appellant. Colbert C. McClain, Assistant District Attorney, with him John H. Maurer, District Attorney, for appellee. OPINION BY ARNOLD, J., November 14, 1950: The appellant was convicted on one indictment charging (1) assault, armed with an offensive weapon, with intent to rob; (2) robbery, being armed with an offensive *3 weapon; (3) committing a crime of violence while being armed with a firearm. He was convicted on two counts of a second indictment, (1) carrying a concealed deadly weapon; and (2) unlawful carrying of a firearm without a license. The verdict of the jury established that Trainer, the victim, a head waiter at one of the prominent Philadelphia hotels, from time to time went to the City of Reading to gamble, in which he was very successful. In these excursions one Weinstein usually drove him in an automobile. On April 3, 1949, Weinstein, by appointment, picked up Trainer, who rode in the back seat. In the front seat was one Silverstein, and with Trainer in the back seat a man named Greenstein. On the outskirts of Philadelphia the car stopped at a red light and the defendant, Cramer, entered the automobile, ordered the driver to proceed in a new direction, and in the vicinity of Vine and Water Streets required the driver to stop. The defendant drew a gun, ordered Trainer and Greenstein out of the car, and took from Trainer $4,000. The defendant next ordered Silverstein out of the car and drove away with Weinstein. Trainer, Silverstein and Greenstein reported the robbery to a local police station. When the case was called for trial[1] defendant's counsel moved for a continuance, averring that Weinstein, Greenstein and Silverstein were eyewitnesses to the alleged robbery; that their names were not endorsed on the indictments; and that the defendant's attorney and writ server had made diligent and unsuccessful efforts to subpoena these three witnesses at various times between May 2 and May 9. It was further averred that these witnesses were essential to the defendant's case; that it was the duty of the Commonwealth to produce them in Court; and that the defendant intended to call *4 them on his own behalf if they were not called by the Commonwealth. It was averred that the defendant was in jail awaiting trial, and that no harm could result to the Commonwealth by a continuance. Defendant's counsel also suggested that the witnesses in question did not and would not identify the defendant as the robber. The only reply by the Commonwealth was that these witnesses had been interrogated by its officers and that all said they could not tell who committed the robbery; that one of them thought it was committed by a negro; and that the only identification testimony of the Commonwealth was that of the victim, Trainer. The Commonwealth could have produced them, and in fact a few days after the instant verdict the Commonwealth did bring them in and asked the court to hold them as a committing magistrate. We think common fairness made it the duty of the Commonwealth to have produced these witnesses in court at the trial, or to show reasonable efforts to produce them; or, in view of the defendant's efforts to obtain the witnesses, that a continuance be granted. All of the difficulty and any motion for a continuance would have been avoided had the Commonwealth conformed to the practice suggested in Commonwealth v. Sarkis et al., 164 Pa. Superior Ct. 194, 199, 63 A. 2d 360, and had the eyewitnesses present in court, notifying the defendant that the Commonwealth would not call them. See also Commonwealth v. Keller, 191 Pa. 122, 134, 43 A. 198; Commonwealth v. Deitrick, 221 Pa. 7, 15, 70 A. 275. The question was not whether the testimony of the eyewitnesses would be helpful to the Commonwealth, — which was not bound to call them. The appellant's contention in this regard is sustained. Defendant was not entitled to affirmance of his second and third points to the effect that the jury might infer, because of the failure of the Commonwealth to produce Weinstein, Greenstein and Silverstein, that the *5 testimony would have been favorable to the defendant, or unfavorable to the Commonwealth. As we said in the Sarkis case, there is no invariable duty on the Commonwealth to call eyewitnesses, although in that case we held that such a charge would have been proper if the Commonwealth had not called the victim in the case at trial. We there called attention to cases holding that the Commonwealth might be obliged to call certain witnesses, but not merely because they were eyewitnesses. See also Commonwealth v. Thurman et al., 167 Pa. Superior Ct. 642, 76 A. 2d 483. In this case there was a multiplication of charges. As we said in Commonwealth v. Weatherwax et al., 166 Pa. Superior Ct. 586, 588, 73 A. 2d 427, the court must, under such circumstances, define the various crimes charged. This contention of the defendant is sustained. If, as suggested in the Weatherwax case, the Commonwealth had made a single count of armed robbery, i.e., hold-up, the crime would have been self-defining. We discover no testimony in the case to justify the remark of the assistant district attorney that "the defendant is one of the most ruthless criminals in the United States," and that "he has an organization behind him." We do not agree with the Commonwealth that the jury could infer that the defendant had a criminal organization behind him because of the defendant's method of testifying and the presentation of his alibi. There is no merit in defendant's claim that a new trial should be granted because the charge of the court misquoted the testimony. It was the duty of the defendant to ask the court to correct any misstatement before the jury retired. As the facts developed in this case, there was no error in permitting the Commonwealth to cross-examine the alibi witness of the defendant by asking if she was a married woman. The fact that she was a married *6 woman associating much with the defendant showed something of her interest in the defendant, to whom she was not married, and thus a possible interest in his acquittal. Judgment reversed and a new trial ordered. NOTES [1] On May 12, 1949.

457 F.Supp. 682 (1978) SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. NATIONAL STUDENT MARKETING CORP. et al., Defendants. M.D.L. No. 105. Civ. A. No. 225-72. United States District Court, District of Columbia. August 31, 1978. *683 *684 *685 *686 Theodore Sonde, Bobby C. Lawyer, Richard O. Patterson, Edward B. Horahan, III, Washington, D. C., for Securities and Exchange Commission. Sherwin J. Markman, Jean S. Moore, Peter Raven-Hansen, Hogan & Hartson, Washington, D. C., for Lord, Bissell & Brook, Max E. Meyer and Louis F. Schauer. David Ginsburg, Lee R. Marks, Martha Jane Shay, Ginsburg, Feldman & Bress, Washington, D. C., for Cameron Brown. MEMORANDUM OPINION BARRINGTON D. PARKER, District Judge: This opinion covers the final act in a civil proceeding brought by the Securities and Exchange Commission (Commission or SEC) seeking injunctive sanctions against numerous defendants as a result of their participation in alleged securities laws violations relating to the National Student Marketing Corporation (NSMC) securities fraud scheme.[1] The original defendants included the corporation and certain of its officers and directors; the accounting firm of Peat, Marwick, Mitchell & Co. (Peat Marwick) and two of its partners; several officers and directors of Interstate National Corporation (Interstate); the law firm of White & Case and one of its partners; and the law *687 firm of Lord, Bissell & Brook (LBB) and two of its partners. The majority of these defendants are not now before the Court. As discovery progressed during the pre-trial stages of this litigation, NSMC and other principal defendants consented to the entry of final judgments of permanent injunction or otherwise reached a resolution of the charges against them.[2] The only defendants remaining are Lord, Bissell & Brook; its two partners, Max E. Meyer and Louis F. Schauer; and Cameron Brown, a former president and director of Interstate, and presently a director of and consultant to NSMC. The focal point of the Commission's charges against these defendants is the corporate merger of Interstate with NSMC on October 31, 1969. The principal question presented is whether the defendants violated or aided and abetted the violation of the anti-fraud provisions of the federal securities laws in two instances: (1) consummation of the NSMC merger; and (2) the immediately following sale of newly acquired NSMC stock by former Interstate principals, including certain of the defendants. These transactions are alleged to have occurred despite the prior receipt by the defendants of information which revealed that NSMC's interim financial statements, used in securing shareholder approval of the merger and available to the investing public generally, were grossly inaccurate and failed to show the true condition of the corporation. The information was included in a comfort letter prepared by NSMC's accounts. The Commission contends that these violations demonstrate a reasonable likelihood of future misconduct by the defendants, thereby justifying the requested permanent injunctive relief. The matter was tried without a jury. After reviewing the extensive record in this case, the Court concludes, for the reasons stated below, that while each of the defendants violated the securities laws in specific instances, the Commission has not fulfilled its obligation of demonstrating a reasonable likelihood that they will do so in the future. Accordingly, the Commission's request for injunctive relief must be denied. This opinion contains the findings of fact and conclusions of law required by Rule 52 of the Federal Rules of Civil Procedure. Initially it will present the background events of this proceeding, including details of the October 31 merger of Interstate and NSMC, and the stock sales by Interstate principals. The Court then will review the Commission's allegations against the defendants in light of the applicable legal principles. Finally, the Court will address the factors involved in its determination that injunctive relief is not warranted in this instance. I. BACKGROUND A. The Companies National Student Marketing Corporation was incorporated in the District of Columbia in 1966. The company enjoyed early prosperity; it grew rapidly and experienced a steady increase in assets, sales and earnings. Its common stock, which was registered with the SEC and traded on the over-the-counter market, rose from an initial public offering of $6 per share in the spring of 1968 to a high of $144 per share in mid-December 1969.[3] The financial community held the company and its potential in high regard, and in anticipation of continued *688 high market performance, it was seen as a good "buy" prospect. Its management was considered aggressive, imaginative and capable; if there was a question of its integrity and honesty, it did not surface in the public arena until a later period. During this period, White & Case served as its outside legal counsel, with Marion J. Epley, III, as the partner immediately in charge of the firm's representation. Peat Marwick served as its outside accountant. Interstate National Corporation, a Nevada corporation, was an insurance holding company. Its principal assets were several wholly-owned subsidiary insurance companies. The company's common stock was traded on the over-the-counter market and owned by approximately 1200 shareholders. Cameron Brown was president, chief executive officer, principal shareholder and a director of the company.[4] Other Interstate principals and directors included Robert P. Tate, chairman of the board; William J. Bach, general counsel; Paul E. Allison, secretary; Louis W. Biegler; and Max E. Meyer. Between board meetings, all management authority was delegated to an executive committee composed of Brown, Tate, Bach, Allison and Biegler. Max E. Meyer, a director and shareholder, was a partner in the Chicago law firm of Lord, Bissell & Brook, which had long represented Interstate and served as its outside legal counsel in all matters relating to the merger of the corporation with NSMC. Meyer, a personal friend and legal advisor to Cameron Brown, served as the contact partner for the Interstate account and was otherwise in overall charge of his firm's representation.[5] Another partner of the firm, Louis F. Schauer, was also involved in the merger transaction due to his experience in corporate and securities law. Peat Marwick served as Interstate's outside accountant during the period in question. B. The Merger Negotiations National Student Marketing Corporation developed a reputation for having a unique and successful marketing network for selling its own and other products to college and high school students. Commencing in 1969, it undertook a highly active program to acquire companies specializing in selling goods and services to students. It was in this connection that NSMC first approached representatives of Interstate. Initially, NSMC discussed the possibility of acquiring an Interstate subsidiary that specialized in selling insurance to students. After Interstate indicated an unwillingness to dispose of a single subsidiary, NSMC expressed interest in acquiring its entire insurance holding company operation. Cortes W. Randell, NSMC's president and chief executive officer, proposed a merger of the two corporations, offering one share of NSMC stock for every two shares of Interstate stock. On June 10, 1969, NSMC representatives, including Randell and James F. Joy, a senior vice president and finance committee member, were invited before the Interstate directors to make a presentation concerning the proposed merger. The directors were provided with NSMC's 1968 annual report and its financial report for the first half of 1969. Randell discussed the company's acquisition program, reviewed several pending corporate acquisition commitments, and made certain earnings predictions for the fiscal year ending August 31, 1969. He also increased the earlier offer to two shares of NSMC common for every three shares of Interstate common. When certain Interstate directors expressed a desire to sell a portion of the NSMC stock which they expected to acquire in the merger, Randell responded that a registered public offering was planned for the fall of 1969, at which time the former Interstate shareholders *689 could sell up to 25 percent of their shares.[6] Very few questions were asked by Randell or Joy about the business and financial affairs of Interstate, an aspect of the meeting which surprised several of Interstate's representatives. This meeting resulted in an agreement in principle for the merger. Essentially identical press releases were then issued by the companies, announcing the agreed upon stock exchange ratio, the estimated value of the transaction as $37 million based on the current market value of NSMC stock, and the fact that the transaction represented approximately a 100 percent premium for the Interstate shares based on their market value at the time.[7] Representations were also made in the releases as to NSMC's earnings for the first six months of fiscal 1969, which ended February 28, 1969. The two corporations' efforts to finalize the merger agreement were not uneventful. The initial proof of the Merger Agreement, prepared by NSMC's outside counsel, failed to provide for parallel rights and obligations of the parties. In fact, as to such matters as warranties and representations, a comfort letter from independent accountants, and counsel opinion letters on legal aspects of the merger, far more was required of Interstate than of NSMC. After insistence by Interstate, however, there was agreement to substantially parallel and mutual provisions covering those matters. On August 12, the Interstate directors met to review the final version of the agreement. A copy of a report from White, Weld & Co. (White Weld), a stock brokerage and investment consultant firm retained by Interstate to prepare an in-depth study of NSMC and the proposed merger, was made available to each director. A White Weld representative explained various aspects of the report, answered questions about NSMC's accounting procedures, and recommended the merger. Following that presentation, Louis F. Schauer, who had broad experience in corporate and securities law, reviewed and explained the agreement. A proof copy of the NSMC proxy statement was also available and examined by the directors then present. Although prepared for use in connection with the merger, that statement contained no entries in the spaces for NSMC's unaudited consolidated income statement for the nine-month period ending May 31, 1969. Because of the omission, Interstate's board chairman, Tate, refused to sign the agreement. After numerous efforts at attempting to obtain the missing proxy statement data and satisfactory answers to questions concerning the omitted data, the information was finally received by telephone. The remaining directors, including Tate, then signed the merger agreement on August 15. The added information, however, was not then analyzed or reviewed to any extent by any Interstate representative. The Merger Agreement set forth fully the terms and conditions of the understanding between the two corporations. Among other things, both corporations represented and warranted that the information "contained in Interstate's and NSMC's Proxy Statements relating to the transactions contemplated by this Agreement will be accurate and correct and will not omit to state a material fact necessary to make such information not misleading,"[8] and that the financial statements included among the provisions "are true and correct and have been prepared in accordance with generally accepted accounting principles *690 consistently followed throughout the periods involved."[9] NSMC specifically referred to its 1968 year-end and May 31, 1969, nine-month financial statements and represented that those statements: fairly present the results of the operations of NSMC and its subsidiaries for the periods indicated, subject in the case of the nine month statements to year-end audit adjustments.[10] The Agreement also provided several conditions precedent to the obligations of the two corporations to consummate the merger. One required the receipt by NSMC of an opinion letter from Interstate's counsel LBB to the effect, inter alia, that Interstate had taken all actions and procedures required of it by law and that all transactions in connection with the merger had been duly and validly taken, to the best knowledge of counsel, in full compliance with applicable law; a similar opinion letter was required to be delivered from NSMC's counsel to Interstate.[11] Another condition was the receipt by each company of a "comfort letter" from the other's independent public accountants. Each letter was required to state: (1) that the accountants had no reason to believe that the unaudited interim financial statements for the company in question were not prepared in accordance with accounting principles and practices consistent with those used in the previous year-end audited financials; (2) that they had no reason to believe that any material adjustments in those financials were required in order fairly to present the results of operations of the company; and (3) that the company had experienced no material adverse change in its financial position or results of operations from the period covered by its interim financial statement up to five business days prior to the effective date of the merger.[12] Although setting forth these specific conditions to consummation of the merger, the final paragraph of the Agreement also provided that: Anything herein to the contrary notwithstanding and notwithstanding any stockholder vote of approval of this Agreement and the merger provided herein, this Agreement may be terminated and abandoned by mutual consent of the Boards of Directors of NSMC and Interstate at any time prior to the Effective Date and the Board of Directors of any party may waive any of the conditions to the obligations of such party under this Agreement.[13] Finally, the Agreement specified that "[t]he transactions contemplated herein shall have been consummated on or before November 28, 1969."[14] Both NSMC and Interstate utilized proxy statements and notices of special stockholder meetings to secure shareholder approval of the proposed merger. Interstate's materials included a copy of the Merger Agreement and NSMC's Proxy Statement; the latter contained NSMC's financial statements for the fiscal year ended August 31, 1968, and the nine-month interim financial statement for the period ending May 31, 1969. Interstate shareholders were urged to study the NSMC Proxy Statement: The NSMC Proxy Statement contains a description of each company, relevant financial statements, comparative per share data and other information important to your consideration of the proposed merger. You are urged to study the NSMC Proxy Statement, hereby incorporated as part of this Proxy Statement, prior to voting your shares.[15] *691 The boards of both companies recommended approval of the merger and at special shareholder meetings that approval was secured by large majorities.[16] In mid-October, Peat Marwick began drafting the comfort letter concerning NSMC's unaudited interim financials for the nine-month period ended May 31, 1969. As issued by NSMC, those financials had reflected a profit of approximately $700,000. Soon after beginning work on the comfort letter, Peat Marwick representatives determined that certain adjustments were required with respect to the interim financials. Specifically, the accountants proposed that a $500,000 adjustment to deferred costs, a $300,000 write-off of unbilled receivables, and an $84,000 adjustment to paid-in capital be made retroactive to May 31 and be reflected in the comfort letter delivered to Interstate. Such adjustments would have caused NSMC to show a loss for the nine-month period ended May 31, 1969, and the company as it existed on May 31 would have broken even for fiscal 1969. Although Peat Marwick discussed the proposed adjustments with representatives of NSMC, neither the accountants nor NSMC informed Interstate of the adjustments prior to the closing.[17] A draft of the comfort letter, with the adjustments, was completed on October 30 and on the next day, the morning of the closing, it was discussed among senior partners of Peat Marwick. C. The Closing and Receipt of the Comfort Letter The closing meeting for the merger was scheduled at 2 p.m. on Friday, October 31, at the New York offices of White & Case. Brown, Meyer and Schauer were present in addition to Interstate directors Bach, Allison and Tate. The representatives of NSMC included Randell, Joy, John G. Davies, their attorney Epley and other White & Case associates. Although Schauer had had an opportunity to review most of the merger documents at White & Case on the previous day, the comfort letter had not been delivered. When he arrived at White & Case on the morning of the merger, the letter was still not available, but he was informed by a representative of the firm that it was expected to arrive at any moment. The meeting proceeded. When the letter had not arrived by approximately 2:15 p. m., Epley telephoned Peat Marwick's Washington office to inquire about it. Anthony M. Natelli, the partner in charge, thereupon dictated to Epley's secretary a letter which provided in part: [N]othing has come to our attention which caused us to believe that: 1. The National Student Marketing Corporation's unaudited consolidated financial statements as of and for the nine months ended May 31, 1969: a. Were not prepared in accordance with accounting principles and practices consistent in all material respects with those followed in the preparation of the audited consolidated financial statements which are covered by our report dated November 14, 1968; b. Would require any material adjustments for a fair and reasonable presentation of the information shown except *692 with respect to consolidated financial statements of National Student Marketing Corporation and consolidated subsidiaries as they existed at May 31, 1969 and for the nine months then ended, our examination in connection with the year ended August 31, 1969 which is still in process, disclosed the following significant adjustments which in our opinion should be reflected retroactive to May 31, 1969: 1. In adjusting the amortization of deferred costs at May 31, 1969, to eliminate therefrom all costs for programs substantially completed or which commenced 12 months or more prior, an adjustment of $500,000 was required. Upon analysis of the retroactive effect of this adjustment, it appears that the entire amount could be determined applicable to the period prior to May 31, 1969. 2. In August 1969 management wrote off receivables in amounts of $300,000. It appears that the uncollectibility of these receivables could have been determined at May 31, 1969 and such charge off should have been reflected as of that date. 3. Acquisition costs in the amount of $84,000 for proposed acquisitions which the Company decided not to pursue were transferred from additional paid-in capital to general and administrative expenses. In our opinion, these should have been so transferred as of May 31, 1969. 2. During the period from May 31, 1969 to October 28, 1969 there has been no material adverse change in the consolidated financial position of National Student Marketing Corporation and its consolidated subsidiaries, or any material adverse change in results of operations of National Student Marketing Corporation and its consolidated subsidiaries as compared with the nine month period ended May 31, 1969 after giving retroactive effect at May 31, 1969 of the adjustments disclosed above.[18]*693 Epley delivered one copy of the typed letter to the conference room where the closing was taking place. Epley then returned to his office. Schauer was the first to read the unsigned letter. He then handed it to Cameron Brown, advising him to read it. Although there is some dispute as to which of the Interstate representatives actually read the letter, at least Brown and Meyer did so after Schauer. They asked Randell and Joy a number of questions relating to the nature and effect of the adjustments. The NSMC officers gave assurances that the adjustments would have no significant effect on the predicted year-end earnings of NSMC and that a substantial portion of the $500,000 adjustments to deferred costs would be recovered. Moreover, they indicated that NSMC's year-end audit for fiscal 1969 had been completed by Peat Marwick, would be published in a couple of weeks, and would demonstrate that NSMC itself had made each of the adjustments for its fourth quarter. The comfort letter, they explained, simply determined that those adjustments should be reflected in the third quarter ended May 31, 1969, rather than the final quarter of NSMC's fiscal year. Randell and Joy indicated that while NSMC disagreed with what they felt was a tightening up of its accounting practices, everything requested by Peat Marwick to "clean up" its books had been undertaken.[18A] At the conclusion of this discussion, certain of the Interstate representatives, including at least Brown, Schauer and Meyer, conferred privately to consider their alternatives in light of the apparent nonconformity of the comfort letter with the requirements *694 of the Merger Agreement.[19] Although they considered the letter a serious matter and the adjustments as significant and important, they were nonetheless under some pressure to determine a course of action promptly since there was a 4 p.m. filing deadline if the closing were to be consummated as scheduled on October 31.[20] Among the alternatives considered were: (1) delaying or postponing the closing, either to secure more information or to resolicit the shareholders with corrected financials; (2) closing the merger; or (3) calling it off completely. The consensus of the directors was that there was no need to delay the closing. The comfort letter contained all relevant information and in light of the explanations given by Randell and Joy, they already had sufficient information upon which to make a decision. Any delay for the purpose of resoliciting the shareholders was considered impractical because it would require the use of year-end figures instead of the stale nine-month interim financials. Such a requirement would make it impossible to resolicit shareholder approval before the merger upset date of November 28, 1969, and would cause either the complete abandonment of the merger or its renegotiation on terms possibly far less favorable to Interstate. The directors also recognized that delay or abandonment of the merger would result in a decline in the stock of both companies, thereby harming the shareholders and possibly subjecting the directors to lawsuits based on their failure to close the merger. The Interstate representatives decided to proceed with the closing. They did, however, solicit and receive further assurances from the NSMC representatives that the stated adjustments were the only ones to be made to the company's financial statements and that 1969 earnings would be as predicted. When asked by Brown whether the closing could proceed on the basis of an unsigned comfort letter, Meyer responded that if a White & Case partner assured them that this was in fact the comfort letter and that a signed copy would be forthcoming from Peat Marwick, they could close. Epley gave this assurance. Meyer then announced that Interstate was prepared to proceed, the closing was consummated, and a previously arranged telephone call was made which resulted in the filing of the Articles of Merger at the Office of the Recorder of Deeds of the District of Columbia.[21] Large packets of merger documents, including the required counsel opinion letters, were exchanged.[22] The closing was *695 solemnized with a toast of warm champagne. Unknown to the Interstate group, several telephone conversations relating to the substance of the comfort letter occurred on the afternoon of the closing between Peat Marwick representatives and Epley. The accountants were concerned with the propriety of proceeding with the closing in light of the adjustments to NSMC's nine-month financials. One such conversation occurred after Epley delivered the unsigned letter to the Interstate participants but before the merger had been consummated. At that time Epley was told that an additional paragraph would be added in order to characterize the adjustments. The paragraph recited that with the noted adjustments properly made, NSMC's unaudited consolidated statement for the nine-month period would not reflect a profit as had been indicated but rather a net loss, and the consolidated operations of NSMC as they existed on May 31, 1969, would show a break-even as to net earnings for the year ended August 31, 1969. Epley had the additional paragraph typed out, but failed to inform or disclose this change to Interstate. In a second conversation, after the closing was completed and the Interstate representatives had departed, Epley was informed of still another proposed addition, namely, a paragraph urging resolicitation of both companies' shareholders and disclosure of NSMC's corrected nine-month financials prior to closing. To this, he responded that the deal was closed and the letter was not needed. Peat Marwick nonetheless advised Epley that the letter would be delivered and that its counsel was considering whether further action should be taken by the firm. The final written draft of the comfort letter arrived at White & Case late that afternoon. Peat Marwick believed that Interstate had been informed and was aware of the conversations between its representatives and Epley and of its concern about the adjustments.[23] Because of this belief and especially since the merger had been closed without benefit of the completed letter, Peat Marwick's counsel perceived no obligation to do anything further about the merger. Nonetheless, a signed copy of the final letter was sent to each board member of the two companies, presumably in an effort to underline the accountants' concern about consummation of the merger without shareholder resolicitation. The signed comfort letter was delivered to the Interstate offices on Monday, November 3. It was first seen and read by Donald Jeffers, Interstate's chief financial officer. He had not been present at the October 31 closing or informed of the adjustments to the interim financials. Concerned, he contacted Brown immediately and read the letter to him. Since a meeting with other Interstate principals was scheduled for the next morning the letter was added to the other matters to be discussed. The signed letter was virtually identical to the unsigned version delivered at the closing, except for the addition of the following two paragraphs: Your attention is called, however, to the fact that if the aforementioned adjustments had been made at May 31, 1969 the unaudited consolidated statement of earnings of National Student Marketing Corporation would have shown a net loss of approximately $80,000. It is presently estimated that the consolidated operations *696 of the company as it existed at May 31, 1969 will be approximately a break-even as to net earnings for the year ended August 31, 1969. In view of the above mentioned facts, we believe the companies should consider submitting corrected interim unaudited financial information to the shareholders prior to proceeding with the closing.[24] The only other change was the reduction in the write-off to receivables from $300,000 to $200,000, making total negative adjustments to NSMC's nine-month financials in the amount of $784,000. At the meeting the following day, the matter was fully discussed by the former Interstate principals. Of particular concern were the additional "break-even" and "resolicitation" paragraphs.[25] Brown explained what had occurred at the closing and the reasons for the decision to consummate the merger. He called Meyer at LBB, who by that time was also aware of the letter. After some discussion, it was decided that more information was needed. Brown and Jeffers agreed to contact Peat Marwick and Meyer agreed that his firm would contact Epley at White & Case. On that afternoon, Schauer contacted Epley by telephone. Epley stated that he had not known of the additional paragraphs until after the closing. He added that in any case the additions did not expand upon the contents of the earlier unsigned letter; the "break-even" paragraph simply reflected the results of an arithmetic computation of the effects of the adjustments, and the "resolicitation" paragraph was gratuitous and a matter for lawyers, not accountants. While Schauer disagreed, Epley again responded that the additional paragraphs made no difference and that NSMC regarded the deal as closed. Brown and Jeffers fared no better with Peat Marwick. That company's representative, Cormick L. Breslin, met briefly with several Interstate representatives on November 4. He could give no information concerning the matter other than that he had not seen a similar letter before and thought it was rather unusual.[26] Later, when contacted again by Brown, Breslin stated that the letter would have to speak for itself and his company would provide no additional information, comment or advice. Over the next several days the Interstate directors continued their discussion of the matter, consulting frequently with their counsel, Meyer and Schauer. As they viewed it, the available options were to attempt to undo the merger, either permanently or until the shareholders could be resolicited, or to leave things as they were. The attorneys indicated that rescission would be impractical, if not impossible, since Interstate no longer existed and NSMC had indicated that it would oppose any effort to undo the merger. Meanwhile, the market value of NSMC stock continued to increase, and the directors noted that any action on their part to undo the merger would most likely adversely affect its price. By the end of the week, the decision was made to abstain from any action. Thereafter, Brown issued a memorandum to all Interstate employees announcing completion of the merger. No effort was ever made by any of the defendants to disclose *697 the contents of the comfort letter to the former shareholders of Interstate, the SEC or to the public in general. D. The Stock Sales Early in the negotiations the principal Interstate shareholders understood that they would be able to sell a portion of the NSMC stock received in the merger through a public offering planned for the fall of 1969. Various shareholders, including Brown, Tate, Allison, Bach and Meyer, intended to profit by this opportunity and sell up to 25 percent of their newly acquired stock. The opportunity did not materialize, however, because within several days of the merger the NSMC operating committee decided to postpone the registration. Brown was advised that the shareholders could still sell up to 25 percent of their shares in a private placement under SEC Rule 133.[27] If they so decided, he was urged to have all use the same broker to avoid upsetting the market for the stock. Brown then contacted Henry Meers, a personal friend and a partner in the White Weld brokerage firm, advised him of their desire to sell and inquired as to whether he could handle the transaction. Meers reported back that his firm could proceed. Brown then received the necessary authorization from the other shareholders and agreed with Meers that the sale would take place on the day of the merger closing. Meers indicated that the sale price could only be determined the day before the closing due to price fluctuations and, on October 30, the two agreed on a price of $49.50 per share.[28] Two matters of significance to the stock sales occurred on the day of the closing. First, certain of the Interstate principals, including Brown, were informed that the amount of NSMC shares they could sell following the merger was limited due to a restriction on their Interstate stock. As a result, Brown was limited to selling only about seven percent of his newly acquired NSMC stock instead of the 25 percent previously planned.[29] Second, NSMC's inhouse *698 counsel Davies told Schauer that NSMC wanted an opinion from LBB in connection with the stock sales. As outlined in a memorandum prepared by White & Case for NSMC, the requested opinion was to state that LBB had made initial factual determinations as to whether the sales comported with the requirements of Rule 133(d).[30] White & Case would then consult with NSMC and prepare its own final opinion letter as to the validity of the sales under the rule. After discussing the matter with Davies, Schauer indicated that there would be no problem delivering the letter in the form and language requested. White Weld began processing the sales on the afternoon of October 31. It subsequently sold a total of 59,500 shares of NSMC stock. The gross received was slightly less than $3 million. Brown received approximately $500,000 for his shares and Meyer received approximately $86,000 for the shares he held, including $10,000 for shares he owned and the balance for shares he held in trust for the benefit of Brown and Brown's family. White Weld was never informed of the comfort letter adjustments before it undertook the sale as agents for the Interstate principals. Later that week a letter from Brown to NSMC and an opinion letter from LBB to NSMC, both of which addressed the Rule 133 matters, were drafted and delivered to NSMC.[31] Though prepared sometime during *699 the week of November 3, the papers were dated October 31. E. Subsequent Events Following the acquisition of Interstate and several other companies NSMC stock rose steadily in price, reaching a peak in mid-December. However, in early 1970, after several newspaper and magazine articles appeared questioning NSMC's financial health, the value of the stock decreased drastically. Several private lawsuits were filed and the SEC initiated a wide-ranging investigation which led to the filing of this action. II. THE PRESENT ACTION The Court has jurisdiction of this proceeding under ง 22(a) of the Securities Act of 1933 (1933 Act)[32] and ง 27 of the Securities Exchange Act of 1934 (1934 Act).[33] In seeking injunctive relief against the defendants, the Securities and Exchange Commission relies upon ง 21(e) of the 1934 Act which in relevant part provides: Whenever it shall appear to the Commission that any person is engaged or is about to engage in acts or practices constituting a violation of any provision of this chapter [or] the rules or regulations thereunder, . . . it may in its discretion bring an action . . . to enjoin such acts or practices, and upon a proper showing a permanent or temporary injunction or restraining order shall be granted . . ..[34] Section 20(b) of the 1933 Act, also relied upon by the Commission, is to the same effect.[35] Each statutory provision requires the Commission to make a "proper showing" that an injunction is warranted, a showing that the Commission attempts to make in this case by proving two instances of past violations by the defendants from which future violations can be inferred and injunctive relief justified.[36] Specifically, the Commission alleges that the defendants, both as principals and as aiders and abettors, violated ง 10(b) of the 1934 Act,[37] Rule 10b-5 promulgated thereunder,[38] and *700 ง 17(a) of the 1933 Act,[39] through their participation in the Interstate/NSMC merger and subsequent stock sales by Interstate principals, in each instance without disclosing the material information revealed by the Peat Marwick comfort letter.[40] The Commission, in what appears to be typical fashion, see SEC v. Barraco, 438 F.2d 97, 99-100 (10th Cir. 1971), makes little effort to distinguish between principals and aiders and abettors in its charges against the defendants. Although the significance of the distinction between primary and secondary liability may be dwindling in light of recent developments, see Note, Rule 10b-5 Liability after Hochfelder: Abandoning the Concept of Aiding and Abetting, 45 U.Chi.L.Rev. 218 (1977), the distinction nonetheless provides a means by which the violations can be specified and the defendants' conduct qualified. Thus, the Court will attempt to sort through the SEC allegations and delineate which charge principal violations of the antifraud provisions and which charge aiding and abetting. The Commission charges Brown and Meyer with responsibility for proceeding with the merger of Interstate and NSMC. Since shareholder approval of the merger was secured in part on the basis of the nine-month financials which the comfort letter indicated were inaccurate, the SEC contends that Brown and Meyer should have refused to close until the shareholders could be resolicited with corrected financials. The Commission also charges the two directors with effecting the sale of NSMC stock following the merger, without first disclosing the information contained in the comfort letter. These allegations clearly constitute charges of principal violations of the antifraud provisions. See 3 A. Bromberg, Securities Law: Fraud ง 8.5 (515) (1970). In addition, Brown is specifically charged with aiding and abetting sales of NSMC stock by Interstate principals through his issuance, with Schauer's assistance, of the Rule 133 letter to NSMC. Numerous charges, all of which appear to allege secondary liability, are leveled against the attorney defendants. Schauer is charged with "participating in the merger between Interstate and NSMC,"[41] apparently referring to his failure to interfere with the closing of the merger after receipt of the comfort letter. Such inaction, when alleged to facilitate a transaction, falls under the rubric of aiding and abetting. See Kerbs v. Fall River Industries, Inc., 502 F.2d 731, 739-40 (10th Cir. 1974). Both Schauer and Meyer are charged with issuing false opinions in connection with the merger and stock sales, thereby facilitating each transaction, and with acquiescence in the merger after learning the contents of the signed comfort letter. The Commission contends that the attorneys should have refused to issue the opinions in view of the adjustments revealed by the unsigned comfort letter, and after receipt of the signed version, they should have withdrawn their *701 opinion with regard to the merger and demanded resolicitation of the Interstate shareholders. If the Interstate directors refused, the attorneys should have withdrawn from the representation and informed the shareholders or the Commission. The SEC specifically characterizes the attorneys' conduct in issuing the Rule 133 opinion as aiding and abetting, and because their alleged misconduct with regard to the merger also appears sufficiently removed from the center of that transaction, it too will be considered under a charge of secondary liability. See SEC v. Coven, 581 F.2d 1020 (2d Cir. 1978); SEC v. Spectrum, Ltd., 489 F.2d 535, 541 (2d Cir. 1973); 3 A. Bromberg, supra. And finally, LBB is charged with vicarious liability for the actions of Meyer and Schauer with respect to the attorneys' activities on behalf of the firm.[42] Since any liability of the alleged aiders and abettors depends on a finding of a primary violation of the antifraud provisions, the Court will first address the issues relating to the Commission's charges against the principals. If the evidence presented demonstrates that there was a violation in either instance the Court will then proceed to discuss whether the conduct of the various defendants also constituted aiding and abetting. In determining whether the Commission has shown violations of the securities laws by the defendants, the Court will employ a preponderance of the evidence standard of proof.[43] III. PAST VIOLATIONS The antifraud provisions effectuate the federal securities laws' purpose of full disclosure and prevention of unfair practices by proscribing the sale or purchase of any security through fraud, or through the use of materially false or misleading statements or omissions. If the requisite level of culpability is demonstrated, any material misstatement or omission with a sufficient nexus to the transfer of a *702 security constitutes a violation.[44] Each of these principal elements will be examined separately in the context of the allegations made by the Commission. The requirement that there be a nexus between the defendants' conduct and a sale of a security will be discussed first, followed by consideration of materiality and scienter. A. Nexus with a Sale For the SEC to prove a violation of the antifraud provisions, it must demonstrate that the alleged misconduct was "in the offer or sale" of a security under ง 17(a) or "in connection with the purchase or sale" of a security under ง 10(b) and Rule 10b-5. The Commission has made the requisite showing for each of the provisions with respect to the defendants' activities leading to the closing of the merger. SEC v. National Securities, Inc., 393 U.S. 453, 467, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969); see SEC v. Savoy Industries, Inc., 190 U.S.App.D.C. ___, at ___, 587 F.2d 1149, at 1171 (1978). However, the defendants[45] contest the SEC's evidence with respect to the nexus between the defendants' conduct and the stock sales by Interstate principals, and between the defendants' conduct during the week of November 3 and either of the "sales" alleged by the Commission. The defendants' principal argument is directed to the alleged nexus between their conduct and the stock sales. They contend there is no nexus between their actions and the stock sales since the Interstate principals committed themselves to sell the NSMC stock before receiving the unsigned comfort letter on October 31. Because the time of commitment is the "sale" for purposes of the antifraud provisions, they assert that their failure to disclose after-acquired information does not fall within the statutory proscription. Their second contention, that there was no connection between their conduct during the week following the merger and the merger or stock sales, is similar. Their position is that both "sales" occurred prior to their actions or inaction during that week, and therefore could not be affected by their alleged misconduct at that time.[46] The Commission's response is primarily directed to the first of the defendants' contentions. It argues that no valid commitment could have been made with respect to the stock sales since White Weld was not a purchaser of the NSMC stock, but only an agent for the defendants. Further, even if a commitment could have been made with their agent, the defendants could not and did not make such a commitment prior to the time they received the unsigned Peat Marwick comfort letter at the closing. The Court finds the latter argument persuasive.[47] *703 In the seminal case of SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir. 1968) (en banc), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), the Second Circuit held that liability for insider trading violations of Rule 10b-5 attaches at the time the commitment to buy or sell is made and not when the transaction is ultimately consummated. 401 F.2d at 853 n. 17. The rationale for using the moment of commitment as the critical point in time derives from the underlying purpose of the antifraud provisions to protect the investment decision from inadequate disclosure and misrepresentations. Once the decision is made and the parties are irrevocably committed to the transaction, there is little justification for penalizing alleged omissions or misstatements which occur thereafter and which have no effect on the decision. A party does not, within the intendment of Rule 10b-5, use material inside information unfairly when he fulfills contractual commitments which were incurred by him previous to his acquisition of that information, for . . . the Rule imposes "no obligation to pull back from a commitment previously made by the buyer and accepted by the seller because of after acquired knowledge." The goal of fundamental fairness in the securities marketplace is achieved by such a determination. Radiation Dynamics, Inc. v. Goldmuntz, 464 F.2d 876, 891 (2d Cir. 1972). Accord, Pittsburgh Coke & Chem. Co. v. Bollo, 421 F.Supp. 908, 923 (E.D.N.Y.1976) (dicta), aff'd on other grounds, 560 F.2d 1089 (2d Cir. 1977); Goodman v. Poland, 395 F.Supp. 660, 689-91 (D.Md.1975). In view of this authority the Court must focus its attention on the point in time, relative to receipt of the unsigned comfort letter, when the Interstate principals committed themselves to sell their NSMC stock.[48] This commitment has been defined as "the point at which, in the classical contractual sense, there was a meeting of the minds of the parties . . .." Radiation Dynamics, Inc. v. Goldmuntz, 464 F.2d at 891. The defendants urge that the "meeting of the minds" occurred prior to the receipt of the comfort letter, specifically on October 30 when Brown and Meers agreed on the price to be paid for the stock. As support they point to the price paid for the stock โ€” $49.50 per share[49] โ€” and a telephone conversation between Brown and Tate on November 3, during which Brown stated that he expected Tate to abide by the commitment made on October 30.[50] The Commission, on the other hand, argues that no valid commitment could have been made until the merger was consummated and the defendants had received their NSMC stock. In addition, it relies on the testimony of the defendants, that they did not intend to sell NSMC stock unless the merger took place, as support for the lack of a commitment as a factual matter. Under these circumstances, *704 asserts the Commission, no commitment was made by the defendants until the merger was consummated and they had received their NSMC stock.[51] The Commission's position is persuasive and indeed the evidence supports that conclusion. While the defendants may have felt committed on October 30 to the price and number of shares to be sold following the merger, the evidence clearly shows that they had no expectation or duty to proceed with the sales if the merger was aborted.[52] Such a conditional commitment is not what the courts had in mind when setting the time of commitment as the critical point for antifraud analysis. It is not some magical incantation of "commitment" that sets the point at which disclosure is no longer mandated, but rather the nature of the commitment. In order to prevent the unfair use of material inside information, the commitment must irrevocably bind the parties to their agreement, without regard to further action or inaction on their part. See Radiation Dynamics, Inc. v. Goldmuntz, 464 F.2d at 890-91; SEC v. Texas Gulf Sulphur Co., 401 F.2d at 853 n. 17. Goodman v. Poland, supra, illustrates the type of commitment required to terminate the duty to disclose material information. The defendants in that case had entered into oral stock purchase agreements with various stockholders during the period from February 28 through March 5. Each of the agreements was subject to certain conditions, with the last being expressly conditioned on all minority stockholders agreeing to sell their securities. Specific terms of a final agreement were left to be worked out by counsel. Although the defendants signed the completed agreement on March 15, it was not until March 25 that all parties had signed, and not until April 15 that the signed agreements were exchanged and the securities delivered. The court, following the reasoning of Radiation Dynamics, first concluded that the duty to disclose terminated on the date of commitment. It then looked to the relevant dates to determine which one met the requirements of a commitment: While it is true that the [defendants] had entered into oral agreements with certain of the plaintiffs herein, those agreements were contingent upon a certain number, or upon all, of the dissident minority stockholders agreeing to sell their securities. That condition was repeatedly emphasized by the [defendants], and the written Agreement of March 15, 1968 itself provided that it would not be binding until all the minority stockholders had signed. This Court, therefore, finds that the parties were not committed to one another until March 25, 1968, when all of the dissident minority stockholders had signed the written Agreement of Purchase and Sale. 395 F.Supp. at 691. The circumstances here are virtually identical. Although Brown, Meyer and the other Interstate principals had agreed to certain aspects of the stock sale prior to receipt of the comfort letter, they had no intention or obligation to proceed with the sale absent the consummation of the merger of the two companies.[53] The Merger Agreement specifically stated that the obligation of either company to proceed with the merger was subject to the performance of certain conditions. Those conditions, and the recognition by the defendants that the stock sale would not occur unless the merger was consummated, barred the existence of a binding, irrevocable commitment. The earliest point at which such a commitment could have been made was after the closing *705 on October 31, when the merger had been completed and the conditions removed. This conclusion is particularly justified here, where the defendants themselves played a significant role with respect to fulfilling the conditions for the merger and stock sale. Antifraud liability should not be foreclosed under such circumstances; otherwise, an insider could remain silent upon receiving material information, secure in the knowledge that he is free either to let the merger and sale proceed or to cancel them both by exercising his control over previously set conditions, whichever course appears financially more beneficial. It is this opportunity for unfair advantage that the securities laws prohibit. See Radiation Dynamics, Inc. v. Goldmuntz, supra; SEC v. Texas Gulf Sulphur Co., supra. The defendants having received the unsigned comfort letter prior to the "sale" of NSMC stock by the Interstate principals, their initial contention that the failure to disclose did not have a sufficient nexus with the transactions must be rejected. Their second argument, however, concerning the lack of a causal relationship between the events of the week of November 3 and either of the "sales" alleged by the Commission, presents a different situation. The SEC has limited its charges against the present defendants to alleged violations with respect to the merger and the sale of NSMC stock by the Interstate principals.[54] Each of these "sales" occurred on October 31, immediately following the consummation of the merger. The events of the following week could not have had any effect on either of the transactions and thus fail to meet the nexus requirement. Nevertheless, they may be considered on a limited basis as "relevant to showing non-disclosure or fraud with respect to events before that date." Goodman v. Poland, 395 F.Supp. at 691. B. Materiality Also essential to an alleged violation of the antifraud provisions is that the omission or misstatement be material. In TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976), the Supreme Court articulated the legal standard of materiality with respect to misleading proxy statements.[55] The Court emphasized that "[t]he question of materiality . . . is an objective one, involving the significance of an omitted or misrepresented fact to a reasonable investor." 426 U.S. at 445, 96 S.Ct. at 2130. Elaborating further, the Court stated: An omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote. This standard is fully consistent with Mills' [Mills v. Electric Auto-Lite Co., 396 U.S. 375, 384, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970)] general description of materiality as a requirement that "the defect have a significant propensity to affect the voting process." It does not require proof of a substantial *706 likelihood that disclosure of the omitted fact would have caused the reasonable investor to change his vote. What the standard does contemplate is a showing of a substantial likelihood that, under all the circumstances, the omitted fact would have assumed actual significance in the deliberations of the reasonable shareholder. Put another way, there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the "total mix" of information made available. 426 U.S. at 449, 96 S.Ct. at 2132 (footnote omitted). Thus, the trier of fact must consider all the circumstances surrounding the transaction and then objectively must assess the inferences a reasonable shareholder would draw from the omitted or misrepresented facts and the significance of those inferences to him in his investment decision. In the present case, the alleged misstatement or omission is the failure to disclose, either to the Interstate shareholders or to the purchasers of the NSMC stock sold by Interstate principals following the merger, the adjustments contained in the unsigned comfort letter delivered at the October 31 closing.[56] Although the defendants contend that the adjustments were not material, and make several arguments in support of that position, the Court concludes that the defendants have misconceived the legal standard of materiality and that the evidence presented clearly demonstrates that the comfort letter adjustments would have assumed "actual significance in the deliberations of the reasonable shareholder" or investor, and were therefore material. Initially, the sheer magnitude of the adjustments supports a finding that they were material. The interim financials issued by NSMC reflected a profit of $702,270 for the nine-month period ended May 31, 1969. Peat Marwick, NSMC's independent accountants, determined that significant negative adjustments were required to be made in those financials to make them not misleading.[57] Those adjustments, contained in the unsigned comfort letter and referred to therein as "significant", included a $500,000 adjustment to deferred costs, a $300,000 write-off of unbilled receivables, and an $84,000 adjustment to paid-in capital, all of which were retroactive to May 31, 1969.[58] The aggregate adjustments amounted to $884,000, thereby reducing the reported profit by 125 percent and resulting in a net loss for the nine-month period of approximately $180,000. Viewing these figures alone, it is difficult to imagine how the adjustments could not be material.[59] *707 The defendants, however, disagree. Among other things, they argue that the comfort letter adjustments were not material to the merger transaction because they failed to reflect accurately the financial status of NSMC as it existed on October 31, the date of the closing and the time at which Brown, Meyer and the other Interstate principals were required to decide whether to proceed with the closing or to abandon the merger, at least on its existing terms.[60] In making this argument, the defendants ignore the fact that the Interstate shareholders made their investment decision to approve the merger a few weeks before the date of the closing, and on the basis of information provided them at that time, largely consisting of the Interstate proxy materials. Therefore, in determining whether the comfort letter adjustments were material, consideration must be given to the information available to the shareholders at the time they approved the merger, not to whatever additional information was available to the Interstate representatives at the closing. See TSC Industries, Inc. v. Northway, Inc., supra; Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970);[61]SEC v. Texas Gulf Sulphur Co., 401 F.2d at 862. In a merger transaction such as that presented here, accurate financial information is necessary in order for a shareholder fairly to be able to vote. "Perhaps nothing is more relevant to a vote on whether or not to approve a merger than the earnings picture of the acquiring company, at least to the stockholder of the company being acquired." Republic Technology Fund, Inc. v. Lionel Corp., 483 F.2d 540, 547 (2d Cir. 1973), cert. denied, 415 U.S. 918, 94 S.Ct. 1416, 39 L.Ed.2d 472 (1974). "Accordingly, failure to convey these earnings accurately, if the discrepancy is at all substantial, has to be material to the person being misled." 483 F.2d at 551; see Kaiser-Frazer Corp. v. Otis & Co., 195 F.2d 838, 840 (2d Cir.), cert. denied, 344 U.S. 856, 73 S.Ct. 89, 97 L.Ed. 664 (1952). The interim financials issued by NSMC for the nine-month period were included in the proxy materials sent to the shareholders of Interstate and NSMC. Although the shareholders were also sent audited year-end financials for 1968, the interim statements were NSMC's most current earnings statements available to the Interstate shareholders at the time they approved the merger. As such, they would clearly be of importance to the shareholders of the acquired company in deciding whether to approve the merger. Moreover, in this instance the Interstate shareholders were specifically informed of the importance of the NSMC financial statements by the proxy materials sent them in connection with the proposed merger. They were advised "to study the NSMC Proxy Statement, hereby incorporated as part of this Proxy Statement, prior to voting your shares," because the NSMC *708 Proxy Statement contained, among other things, "relevant financial statements . . important to your consideration of the proposed merger."[62] The proxy materials also contained copies of the Merger Agreement, which not only represented and warranted that the financial statements of NSMC were accurate and truthful, but in addition, provided a specific requirement of a comfort letter from NSMC's independent accountants to the effect that they had no reason to believe that the unaudited interim financial statements for the nine months ended May 31, 1969, were not prepared in accordance with generally accepted accounting principles or that any material adjustments were necessary to present accurately the results of NSMC's operations. These provisions effectively assured the Interstate shareholders that the financial statements would be accurate. The comfort letter requirement provided an extra measure of assurance, since its receipt by Interstate was a condition precedent to effectuation of the shareholders' investment decision.[63] The defendants also urge that the conduct of Brown, Meyer and other Interstate representatives at the closing evidences the lack of materiality with respect to the comfort letter adjustments. Those actions, however, are not determinative of materiality since, as noted, that question "is an objective one, involving the significance of an omitted or misrepresented fact to a reasonable investor," TSC Industries, Inc. v. Northway, Inc., 426 U.S. at 445, 96 S.Ct. at 2130 (emphasis added), not the significance of the information to various individual investors.[64] In any event, even if their conduct and the information available to them at the time of the merger were determinative of materiality, the evidence presented reveals that though the Interstate representatives may not have considered the adjustments decisive to their decision to close the merger, they clearly considered them important and significant โ€” in other words, material. Upon receipt of the comfort letter, Schauer read it and immediately gave it to Brown, advising him to read it as well. Thereafter, the Interstate representatives questioned those present from NSMC concerning the meaning and effect of the adjustments. They then caucused privately to consider their course of action in light of the information in the letter. They discussed various options, including postponement or calling off the merger. Returning to the conference room, they asked further questions of the NSMC representatives *709 about the adjustments. After receiving assurances as to the accuracy of the year-end earnings estimates and that the adjustments in the comfort letter were the only ones required to be made in the interim financials, the Interstate representatives decided to proceed with the closing. The fact that, after taking these various precautions, Brown, Meyer, and other Interstate representatives made a business judgment that the merger was still in the best interests of the Interstate shareholders does not mean that the adjustments were not material. Decisiveness is not equivalent to materiality. [Materiality] does not require proof of a substantial likelihood that disclosure of the omitted fact would have caused the reasonable investor to change his vote. What the standard does contemplate is a showing of a substantial likelihood that . . . the omitted fact would have assumed actual significance in the deliberations of the reasonable shareholder. TSC Industries, Inc. v. Northway, Inc., 426 U.S. at 449, 96 S.Ct. at 2132; see Mills v. Electric Auto-Lite Co., 396 U.S. at 384-85, 90 S.Ct. 616 (1970). Despite their business judgment to proceed, the conduct of the Interstate representatives clearly demonstrates that they considered the adjustments significant and important in their deliberations. The adjustments would be no less important in the deliberations of the reasonable investor. At the very least, the reasonable shareholder would likely have been disturbed by the adjustments, just as were the defendants, and therefore might have sought further explanation before deciding to approve the merger. Cf. Gerstle v. Gamble-Skogmo, Inc., 478 F.2d 1281, 1302-03 (2d Cir. 1973).[65] In summary, the Court concludes that the adjustments contained in the unsigned comfort letter would have altered the total mix of information available and would have assumed actual significance in the deliberations of the reasonable Interstate shareholder. Although it is arguable whether the better business decision under the circumstances was to proceed with the merger, the antifraud provisions prohibit such a course of action when a material misrepresentation or omission has occurred, regardless of the business justification for closing the merger. There is no doubt that the adjustments were material, and therefore Brown and Meyer should have refused to proceed with the merger absent disclosure to and resolicitation of the shareholders. The adjustments were equally material with respect to the decisions of those purchasing NSMC stock from the Interstate principals. Although the proxy materials were prepared in connection with the merger, they also provided the general investing public, including those purchasers, with the most current information as to the financial condition of NSMC. The revelations in the unsigned comfort letter that the nine-month financials were inaccurate and misleading clearly would have assumed actual significance in the deliberations of those purchasing the NSMC stock from Brown, Meyer and other Interstate principals. As such, Brown and Meyer were prohibited from selling their newly acquired NSMC shares without first disclosing the comfort letter information. C. Scienter Finally, there must be proof that Brown and Meyer acted with the requisite degree of culpability. Unfortunately, the level of culpability required in an SEC injunctive *710 action is far from certain. Negligence or the lack of due diligence was previously considered sufficient. E.g., SEC v. Spectrum, Ltd., 489 F.2d 535, 541 (2d Cir. 1973); SEC v. Pearson, 426 F.2d 1339, 1343 (10th Cir. 1970); SEC v. Texas Gulf Sulphur Co., 401 F.2d at 854-55, 866-68 (concurring opinion); but see, e.g., SEC v. Coffey, 493 F.2d 1304, 1314 (6th Cir. 1974), cert. denied, 420 U.S. 908, 95 S.Ct. 826, 42 L.Ed.2d 837 (1975). However, that position has been significantly eroded by Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), where the Supreme Court held that scienter, defined as a "mental state embracing intent to deceive, manipulate, or defraud," 425 U.S. at 193-94 n. 12, 96 S.Ct. at 1381, was a necessary element in a private damage action under ง 10(b) and Rule 10b-5. While the Court expressly refused to consider whether scienter was also required in an injunctive action alleging violations of ง 10(b) and Rule 10b-5, its analysis of the language of the statutory provision strongly suggests that proof of scienter is required in all actions under ง 10(b), regardless of the identity of the parties involved. See 425 U.S. at 217-18, 96 S.Ct. 1375 (Blackmun, J., dissenting). Nevertheless, courts have still failed to reach a consensus on the issue. Compare SEC v. Southwest Coal & Energy Co., 439 F.Supp. 820, 825 (W.D.La.1977); SEC v. American Realty Trust, 429 F.Supp. 1148, 1171 (E.D.Va.1977); and SEC v. Bausch & Lomb, Inc., 420 F.Supp. 1226, 1240-41 (S.D. N.Y.1976) (scienter required), aff'd on other grounds, 565 F.2d 8 (2d Cir. 1977) with SEC v. World Radio Mission, Inc., 544 F.2d 535, 540-41 (1st Cir. 1976); SEC v. Hart, No. 78-65 (D.D.C. May 26, 1978) (alternate holding); and SEC v. Goetek, 426 F.Supp. 715, 726 (N.D.Cal.1976) (scienter not required).[66] Similar confusion prevails with respect to the role of scienter in an injunctive action involving alleged violations of ง 17(a). Several courts have focused on the Supreme Court's suggestion in Hochfelder that the language of ง 17(a) may be broader in scope than that of ง 10(b), see 425 U.S. at 212-13 & n. 32, 96 S.Ct. 1375, and have concluded that ง 17(a) encompasses both intentional and negligent misconduct, at least in actions brought by the SEC for injunctive relief. SEC v. Coven, 581 F.2d 1020, at 1027-1028 (2d Cir. 1978); SEC v. Southwest Coal & Energy Co., 439 F.Supp. at 826; see Comment, Scienter and SEC Injunction Suits, 90 Harv.L.Rev. 1018, 1021 n. 24 (1977). Other courts, however, have come to a contrary conclusion and have required scienter under ง 17(a) as well as under ง 10(b). SEC v. American Realty Trust, supra; see SEC v. Cenco, Inc., 436 F.Supp. 193 (N.D.Ill.1977). Though these are important issues, the resolution of which would be welcome to the securities bar, the Court concludes that they need not be decided at this time, because the conduct of Brown and Meyer in this case meets the prevailing standard for scienter. After receiving the unsigned comfort letter at the closing, the Interstate representatives immediately expressed concern over the new information; they caucused privately and sought and received various oral assurances from the NSMC representatives. Moreover, the new information included adjustments which were far from insubstantial; they reduced the reported profit of NSMC by several hundreds of thousands of dollars and converted what had been a sizable profit into a net loss. Despite the obvious materiality of this information, especially as demonstrated by their conduct, *711 they made a conscious decision not to disclose it. Such conduct has been found sufficient to meet the scienter requirement. McLean v. Alexander, 420 F.Supp. 1057, 1080-82 (D.Del.1976); see Nassar & Co., Inc. v. SEC, 185 U.S.App.D.C. 125, 130 n. 3, 566 F.2d 790, 795 n. 3 (1977) (Leventhal, J., concurring); Lanza v. Drexel & Co., 479 F.2d 1277, 1305 (2d Cir. 1973). This knowing failure to disclose does not alone support a finding of scienter here. Also relevant are certain extrinsic factors, such as the presence of trading in the security during the period in question, actions taken by the defendant to remedy his prior actions, the pattern of the defendant's conduct, and any other similar conduct by the defendant. See SEC v. Bausch & Lomb, Inc., 420 F.Supp. at 1242. The Commission concedes that none of the defendants has been involved in other misconduct, either before or since the incidents alleged here. Further, the present actions took place within a short period of time, with some pressure on the participants to choose a course of action and proceed. Nevertheless, it cannot be ignored that Brown and Meyer expected to profit handsomely from the merger and the subsequent stock sales.[67] They were in no haste to disseminate the comfort letter information, and in fact they never revealed the adjustments, even after NSMC's year-end audit had been released and their fears of the adjustments being taken out of context should have been assuaged. Finally, although it is difficult to assess their concern with regard to the market value of NSMC stock it is apparent that a major reason for not disclosing the information was the protection of the investments made by Interstate shareholders, including themselves, by avoiding any action which could have a detrimental effect on the price of the stock. These circumstances provide strong additional support for an inference that the defendants acted with scienter. In any event, to the extent an inference of actual intent to deceive, manipulate, or defraud may be inappropriate, the defendants' actions here clearly constitute "the kind of recklessness that is equivalent to wilful fraud," SEC v. Texas Gulf Sulphur Co., 401 F.2d at 868 (concurring opinion), and which also satisfies the scienter requirement. Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 44-47 (2d Cir. 1978); Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1040, 1044 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1978); SEC v. Hart, supra; see SEC v. American Realty Trust, 429 F.Supp. at 1171 n. 8; SEC v. Bausch & Lomb, Inc., 420 F.Supp. at 1243 n. 4; McLean v. Alexander, 420 F.Supp. at 1080-81. The failure to disclose the material information in this case was neither inadvertent, compare SEC v. Bausch & Lomb, Inc., 420 F.Supp. at 1242, nor the product of simple forgetfulness, see Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d at 1045 n. 20,[68] but *712 instead the result of a conscious decision made by the defendants. In view of the obviousness of the danger that investors would be misled by their failure to disclose the material information, such conduct must be considered reckless. Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d at 1047-48 (obvious danger of misleading investor, coupled with conscious decision not to disclose information, establishes recklessness as a matter of law). Accordingly, the Court finds that Brown and Meyer violated ง 10(b), Rule 10b-5, and ง 17(a) through their participation in the closing of the Interstate/NSMC merger and through their sales of NSMC stock immediately following the merger, in each instance without first disclosing the material information contained in the unsigned comfort letter. IV. AIDING AND ABETTING The Court must now turn to the Commission's charges that the defendants aided and abetted these two violations of the antifraud provisions. The violations themselves establish the first element of aiding and abetting liability, namely that another person has committed a securities law violation. Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d at 47; Woodward v. Metro Bank of Dallas, 522 F.2d 84, 95 (5th Cir. 1975); SEC v. Coffey, 493 F.2d at 1316. The remaining elements, though not set forth with any uniformity, are essentially that the alleged aider and abettor had a "general awareness that his role was part of an overall activity that is improper, and [that he] knowingly and substantially assisted the violation." SEC v. Coffey, supra. Accord, Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d at 47-48; Woodward v. Metro Bank of Dallas, 522 F.2d at 94-97. See generally, Ruder, Multiple Defendants in Securities Law Fraud Cases: Aiding and Abetting, Conspiracy, In Pari Delicto, Indemnification, and Contribution, 120 U.Pa. L.Rev. 597 (1972); 3 A. Bromberg, supra at ง 8.5(530). The Commission's allegations of aiding and abetting by the defendants, specified at page 700 supra, seem to fall into four basic categories: (1) the failure of the attorney defendants to take any action to interfere in the consummation of the merger;[69] (2) the issuance by the attorneys of an opinion with respect to the merger; (3) the attorneys' subsequent failure to withdraw that opinion and inform the Interstate shareholders or the SEC of the inaccuracy of the nine-month financials; and (4) the issuance by the attorneys and Brown of an opinion and letter, respectively, concerning the validity of the stock sales under Rule 133. The SEC's position is that the defendants acted or failed to act with an awareness of the fraudulent conduct by the principals, and thereby substantially assisted the two violations. The Court concurs with regard to the attorneys' failure to interfere with the closing, but must conclude that the remaining actions or inaction alleged to constitute aiding and abetting did not substantially facilitate either the merger or the stock sales. As noted, the first element of aiding and abetting liability has been established by the finding that Brown and Meyer committed primary violations of the securities laws. Support for the second element, that the defendants were generally aware of the fraudulent activity, is provided by the previous discussion concerning scienter. With the exception of LBB, which is charged with vicarious liability, each of the defendants was actually present at the closing of the merger when the comfort letter was delivered and the adjustments to the nine-month financials were revealed. Each was *713 present at the Interstate caucus and the subsequent questioning of the NSMC representatives; each knew of the importance attributed to the adjustments by those present. They knew that the Interstate shareholders and the investing public were unaware of the adjustments and the inaccuracy of the financials. Despite the obvious materiality of the information, see section III-B supra, each knew that it had not been disclosed prior to the merger and stock sale transactions. Thus, this is not a situation where the aider and abettor merely failed to discover the fraud, see Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d at 52 (Mansfield, J., dissenting), or reasonably believed that the victims were already aware of the withheld information, Hirsch v. du Pont, 553 F.2d 750, 759 (2d Cir. 1977). The record amply demonstrates the "knowledge of the fraud, and not merely the undisclosed material facts," Hirsch v. du Pont, supra, that is required to meet this element of secondary liability. See Ruder, supra at 630-31. The final requirement for aiding and abetting liability is that the conduct provide knowing, substantial assistance to the violation. In addressing this issue, the Court will consider each of the SEC's allegations separately. The major problem arising with regard to the Commission's contention that the attorneys failed to interfere in the closing of the merger is whether inaction or silence constitutes substantial assistance. While there is no definitive answer to this question, courts have been willing to consider inaction as a form of substantial assistance when the accused aider and abettor had a duty to disclose. Woodward v. Metro Bank of Dallas, 522 F.2d at 97; see Kerbs v. Fall River Industries, Inc., 502 F.2d at 740; Brennan v. Midwestern United Life Ins. Co., 417 F.2d 147, 154 (7th Cir. 1969), cert. denied, 397 U.S. 989, 90 S.Ct. 1122, 25 L.Ed.2d 397 (1970). Although the duty to disclose in those cases is somewhat distinguishable, in that they contemplate disclosure to an opposing party and not to one's client, they are sufficiently analogous to provide support for a duty here. Upon receipt of the unsigned comfort letter, it became clear that the merger had been approved by the Interstate shareholders on the basis of materially misleading information. In view of the obvious materiality of the information, especially to attorneys learned in securities law, the attorneys' responsibilities to their corporate client required them to take steps to ensure that the information would be disclosed to the shareholders. However, it is unnecessary to determine the precise extent of their obligations here, since it is undisputed that they took no steps whatsoever to delay the closing pending disclosure to and resolicitation of the Interstate shareholders. But, at the very least, they were required to speak out at the closing concerning the obvious materiality of the information and the concomitant requirement that the merger not be closed until the adjustments were disclosed and approval of the merger was again obtained from the Interstate shareholders. Their silence was not only a breach of this duty to speak, but in addition lent the appearance of legitimacy to the closing, see Kerbs v. Fall River Industries, Inc., supra. The combination of these factors clearly provided substantial assistance to the closing of the merger. Contrary to the attorney defendants' contention, imposition of such a duty will not require lawyers to go beyond their accepted role in securities transactions, nor will it compel them to "err on the side of conservatism, . . . thereby inhibiting clients' business judgments and candid attorney-client communications."[70] Courts will not lightly overrule an attorney's determination of materiality and the need for disclosure. However, where, as here, the significance of the information clearly removes any doubt concerning the materiality of the information, attorneys cannot rest on asserted "business judgments" as justification for their failure to make a legal decision *714 pursuant to their fiduciary responsibilities to client shareholders. The Commission also asserts that the attorneys substantially assisted the merger violation through the issuance of an opinion that was false and misleading due to its omission of the receipt of the comfort letter and of the completion of the merger on the basis of the false and misleading nine-month financials.[71] The defendants contend that a technical reading of the opinion demonstrates that it is not false and misleading, and that it provides accurate opinions as to Interstate's compliance with certain corporate formalities. Of concern to the Court, however, is not the truth or falsity of the opinion, but whether it substantially assisted the violation. Upon consideration of all the circumstances, see Woodward v. Metro Bank of Dallas, 522 F.2d at 97, the Court concludes that it did not. Contrary to the implication made by the SEC, the opinion issued by the attorneys at the closing did not play a large part in the consummation of the merger. Instead, it was simply one of many conditions to the obligation of NSMC to complete the merger. It addressed a number of corporate formalities required of Interstate by the Merger Agreement, only a few of which could possibly involve compliance with the antifraud provisions of the securities laws.[72] Moreover, the opinion was explicitly for the benefit of NSMC, which was already well aware of the adjustments contained in the comfort letter. Thus, this is is not a case where an opinion of counsel addresses a specific issue and is undeniably relied on in completing the transaction. Compare SEC v. Coven, 581 F.2d 1020, at 1028; SEC v. Spectrum, Ltd., 489 F.2d 535 (2d Cir. 1973). Under these circumstances, it is unreasonable to suggest that the opinion provided substantial assistance to the merger. The SEC's contention with regard to counsel's alleged acquiescence in the merger transaction raises significant questions concerning the responsibility of counsel. The basis for the charge appears to be counsel's failure, after the merger, to withdraw their opinion, to demand resolicitation of the shareholders, to advise their clients concerning rights of rescission of the merger, and ultimately, to inform the Interstate shareholders or the SEC of the completion of the merger based on materially false and misleading financial statements. The defendants counter with the argument that their actions following the merger are not subject to the coverage of the securities laws. The filing of the complaint in this proceeding generated significant interest and an almost overwhelming amount of comment within the legal profession on the scope of a securities lawyer's obligations to his client and to the investing public.[73] The very initiation of this action, therefore, has provided a necessary and worthwhile impetus for the profession's recognition and assessment of its responsibilities in this area. The Court's examination, however, must be more limited. Although the complaint alleges varying instances of misconduct on the part of several attorneys and firms, the Court must narrow its focus to the present defendants and the charges against them. Meyer, Schauer and Lord, Bissell & Brook are, in essence, here charged with failing to take any action to "undo" the merger. The Court has already concluded that counsel had a duty to the Interstate shareholders to delay the closing of the merger pending disclosure and resolicitation with corrected financials, and that the breach of that duty constituted a violation of the antifraud provisions through aiding and abetting the merger transaction. The Commission's charge, however, concerns the period following that transaction. Even if the attorneys' fiduciary responsibilities to the Interstate shareholders continued beyond *715 the merger, the breach of such a duty would not have the requisite relationship to a securities transaction, since the merger had already been completed.[74] It is equally obvious that such subsequent action or inaction by the attorneys could not substantially assist the merger. The final contention of the SEC concerns the issuance by the attorneys and Brown of the Rule 133 opinion and letter, respectively. Little discussion is necessary with respect to this charge, for the Commission has clearly failed to show that these documents substantially assisted the stock sales. Neither of the documents were required by the Merger Agreement, but were requested by NSMC at the closing of the merger. The documents were not intended for the investing public, but for the sole use of NSMC and its counsel in preparing a formal, independent opinion concerning the validity of the sales under Rule 133. Further, the documents were limited to primarily factual issues relevant to the requirements of the Rule, and in no way indicated that they could be relied upon with regard to compliance with the antifraud provisions. Under the circumstances, the Court concludes that the Rule 133 documents issued by the attorneys and Brown did not substantially assist the stock sales by Interstate principals, specifically Brown and Meyer. Thus, the Court finds that the attorney defendants aided and abetted the violation of ง 10(b), Rule 10b-5, and ง 17(a) through their participation in the closing of the merger. V. APPROPRIATENESS OF INJUNCTIVE RELIEF Although the Commission has proved past violations by the defendants, that does not end the Court's inquiry. Proof of a past violation is not a prerequisite to the grant of injunctive relief, see United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), nor by itself necessarily sufficient to justify such relief, see SEC v. Bausch & Lomb, Inc., 565 F.2d 8 (2d Cir. 1977); SEC v. Management Dynamics, Inc., 515 F.2d 801, 807 (2d Cir. 1975), but it may, in combination with other factors, warrant an inference of future misconduct by the charged party, SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1100 (2d Cir. 1972). The crucial question, though, remains not whether a violation has occurred, but whether there exists a reasonable likelihood of future illegal conduct by the defendant, "something more than the mere possibility which serves to keep the case alive." United States v. W. T. Grant Co., supra. Thus, the SEC must "go beyond the mere facts of past violations and demonstrate a realistic likelihood of recurrence." SEC v. Commonwealth Chemical Securities, Inc., 574 F.2d 90, 100 (2d Cir. 1978). The factors which are relevant to such a showing have been previously stated by this Court: The character of the past violations, the effectiveness of the discontinuance and the bona fides of the expressed intent to comply are considered. The number and duration of past wrongs, the time which has elapsed since the last violation, the opportunity to commit further illegal acts, the novelty of the violation, and the harmful impact of the injunction on the defendant are objective factors which the courts have examined. Subjective inquiries *716 into the wilfulness or bad faith in a defendant's prior conduct and the sincerity of his representations not to violate the law are also pertinent. SEC v. National Student Marketing Corp., 360 F.Supp. 284, 297 (D.D.C.1973). Accord, SEC v. Universal Major Industries Corp., 546 F.2d 1044, 1048 (2d Cir. 1976); SEC v. Management Dynamics, Inc., supra; SEC v. Penn Central Co., 425 F.Supp. 593, 597 (E.D.Pa.1976). The Court must assess these factors and determine, under the "totality of circumstances", "[w]hether the inference that the defendant is likely to repeat the wrong is properly drawn . . .." SEC v. Management Dynamics, Inc., supra. Exercising the broad discretion accorded it in making this determination, SEC v. Universal Major Industries Corp., 546 F.2d at 1048; SEC v. National Student Marketing Corp., supra, the Court concludes that in this instance injunctive relief is not warranted. The Commission has not demonstrated that the defendants engaged in the type of repeated and persistent misconduct which usually justifies the issuance of injunctive relief. See, e. g., SEC v. Savoy Industries, Inc., 190 U.S.App.D.C. ___, at ___ n. 37, ___, 587 F.2d 1149, at 1162; SEC v. Commonwealth Chemical Securities, Inc., 574 F.2d at 100; SEC v. Shapiro, 494 F.2d 1301, 1308 (2d Cir. 1974). Instead, it has shown violations which principally occurred within a period of a few hours at the closing of the merger in 1969. The Commission has not charged, or even suggested, that the defendants were involved in similar misconduct either before or after the events involved in this proceeding. Thus, the violations proved by the SEC appear to be part of an isolated incident, unlikely to recur and insufficient to warrant an injunction. See SEC v. Bausch & Lomb, Inc., 565 F.2d at 19; SEC v. Parklane Hosiery Co., 422 F.Supp. 477, 487 (S.D.N.Y.1976), aff'd, 558 F.2d 1083 (2d Cir. 1977). The Commission appears to agree, for in the six years since the filing of this action, it has made no attempt to obtain interlocutory injunctive relief against these defendants. Such inaction argues strongly against the need for injunctive relief. See SEC v. Parklane Hosiery Co., supra. Further, it is difficult to characterize the violations presented here as either "willful, blatant, and often completely outrageous," SEC v. Manor Nursing Centers, Inc., 458 F.2d at 1101, or as the "garden variety fraud" urged by the Commission, SEC Post-Trial Brief at 129. There is no evidence to suggest that these defendants knew about the comfort letter adjustments prior to the receipt of the unsigned comfort letter at the closing; and after receiving the letter, the defendants were under some pressure to determine a course of action, either to proceed with the transactions as scheduled or to abort both the merger and stock sales. Although it has now been found that they unlawfully and with scienter decided to proceed, their actions in this regard hardly resemble the deliberate and well-planned fraudulent scheme frequently found in securities fraud cases. Finally, the Commission asserts that an injunction is necessary because the professional occupations of the defendants provide significant opportunities for further involvement in securities transactions. It notes that Brown holds positions as a director and as a consultant with NSMC, and that Meyer, Schauer and LBB continue to be involved in various corporate activities, including securities transactions, as part of their legal practice. While these opportunities distinguish the present defendants from those who, because they completely lack such opportunities, should not be subject to the threat of an injunction, see SEC v. National Student Marketing Corp., 360 F.Supp. at 300, they do not alone justify relief. In fact, various circumstances indicate that this factor is not as one-sided as the Commission suggests. Although Brown retains his positions with NSMC, he is in effect virtually retired; the likelihood of his being involved in a securities transaction, other than as an investor, seems quite small. See SEC v. Parklane Hosiery Co., supra. While the attorney defendants are more likely to be so involved, that fact is countered somewhat by their professional responsibilities as attorneys and officers of the court to conform their conduct to the *717 dictates of the law. The Court is confident that they will take appropriate steps to ensure that their professional conduct in the future comports with the law.[75] After considering the "totality of circumstances" presented here, the Court concludes that the Securities and Exchange Commission has not fulfilled its statutory obligation to make a "proper showing" that injunctive relief is necessary to prevent further violations by these defendants. Accordingly, judgment will be entered for the defendants and the complaint will be dismissed.[*] NOTES [1] Other opinions filed by this Court in connection with this proceeding are reported at 430 F.Supp. 639 (1977); 73 F.R.D. 444 (1977); 402 F.Supp. 641 (1975); 68 F.R.D. 157 (1975), aff'd, 179 U.S.App.D.C. 56, 538 F.2d 404 (1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977); 59 F.R.D. 305 (1973); 360 F.Supp. 284 (1973). [2] NSMC consented to the entry against it of a Judgment of Permanent Injunction on July 27, 1972. Similar entries of judgment were made against the following defendants on the dates indicated: Bernard J. Kurek, May 7, 1974; Peat, Marwick, Mitchell & Co., July 2, 1975; Joseph Scansaroli, December 6, 1976; James F. Joy, December 30, 1976; Cortes W. Randell, January 25, 1977; Anthony M. Natelli, January 25, 1977; Robert A. Katz, April 26, 1977; Marion Jay Epley, III, May 16, 1977; Roger O. Walther, May 16, 1977; Donald A. Fergusson, May 16, 1977; and John G. Davies, August 22, 1977. A settlement Order was agreed to between the SEC and White & Case and filed on May 16, 1977. Motions for summary judgment filed by Paul E. Allison, William J. Bach and Robert P. Tate were granted March 7, 1973. [3] The $144 per share figure is based on an adjustment for a 2-for-1 stock split in December 1968; the actual price in mid-December 1969 was $72 per share. [4] Cameron Brown had the largest single holding of Interstate shares; he owned approximately 16,000 shares of common stock and about 11,500 of preferred, with each of the preferred shares convertible to 20 shares of common. [5] Meyer held 1,240 shares of Interstate common stock in his own name and served, at Brown's request, as trustee of several trusts created by Brown for his children, the corpora of which were Interstate stock. [6] Because of an accounting method in use in 1969, a company was permitted to "pool" the earnings of an acquired company with the earnings of the parent as though the companies had always operated together. However, in order for NSMC to take advantage of this retroactive pooling, no more than 25 percent of the shares received in the merger exchange could be sold during the first year. [7] On June 10, 1969, NSMC's stock was selling for a bid price of $44.50 per share, while Interstate's stock was selling for a bid price of $14.25. The agreed exchange ratio of three Interstate shares for two NSMC shares had the effect of valuing the Interstate stock at approximately $30 per share, twice its then market value. [8] SEC Exhibit 31 at 127 ถ 5(u), 131 ถ 6(u) [Merger Agreement at 7 ถ 5(u), 11 ถ 6(u)]. [9] Id. at 124 ถ 5(d), 128 ถ 6(d) [Merger Agreement at 4 ถ 5(d), 8 ถ 6(d)]. [10] Id. at 128 ถ 6(d) [Merger Agreement at 8 ถ 6(d)]. [11] Id. at 131-32 ถ 8(a), 133-34 ถ 9(a) [Merger Agreement at 11-12 ถ 8(a), 13-14 ถ 9(a)]. [12] Id. at 133 ถ 8(e), 134-35 ถ 9(e) [Merger Agreement at 13 ถ 8(e), 14-15 ถ 9(e)]. [13] Id. at 136 ถ 18 [Merger Agreement at 16 ถ 18]. [14] Id. at 133 ถ 8(k), 135 ถ 9(j) [Merger Agreement at 13 ถ 8(k), 15 ถ 9(j)]. [15] SEC Exhibit 32 at 2; see also id. at 5. [16] At a stockholders meeting held October 8, 1969, NSMC shareholders approved an increase in the company's authorized shares and then approved the merger of Interstate and five other companies with NSMC. The Special Meeting of Interstate's shareholders was held on October 17, 1969. At that meeting, the merger with NSMC was approved by a vote of 556,931 shares of Interstate common in favor of the merger, 1450 common shares against, and all 27,000 shares of Interstate preferred in favor of the merger. [17] Joy of NSMC did call Brown on October 29, 1969, to inform him that Peat Marwick had almost completed its audit of NSMC for fiscal 1969, that NSMC's predicted earnings were on target, and that in an effort to make the company's books as clean as possible, Peat Marwick was proposing some changes in NSMC's financial statements which might relate back to May 1969. Joy did not inform Brown, however, of the nature of the adjustments or that they would be reflected in the comfort letter to be delivered to Interstate pursuant to the terms of the Merger Agreement. [18] The entire letter reads as follows: Gentlemen: Under the date of November 14, 1968 we reported on certain financial statements and related schedules of National Student Marketing Corporation. We have not made an examination of the consolidated financial statements nor audited the records or transactions of National Student Marketing Corporation and its consolidated subsidiaries for the nine months ended May 31, 1969. Accordingly, we express no opinion on such consolidated financial statements. At your request, we have made a review to October 28, 1969 which does not constitute an examination in accordance with generally accepted auditing standards of National Student Marketing Corporation's consolidated financial statement as of and for the nine months ended May 31, 1969. Accordingly, we have: (a) Read the aforementioned unaudited consolidated financial statement for the nine months period ended May 31, 1969 and the unaudited consolidated financial statements for the year ended August 31, 1969, which are the latest available interim and annual unaudited financial statements; (b) Read the minutes of the meetings of the stockholders, Board of Directors, and Executive Committee held during the period from August 31, 1968 to October 28, 1969 included in the minute books at October 28, 1969, officials of the Company having advised us that the minutes of all meetings through that date were set forth therein; and (c) Had discussions with officials of the Company responsible for financial and accounting matters as to transactions and events subsequent to August 31, 1968, and as to whether adjustments had been made to effect a reasonable closing at May 31, 1969. Our work did not extend to the period from October 28, 1969 to the date of this letter. It should be understood that this limited review would not necessarily reveal adverse changes in the financial position or results of operations of the Companies or inconsistencies in the application of generally accepted accounting principles. Subject to this explanation and based upon the aforementioned limited review, nothing has come to our attention which caused us to believe that: 1. The National Student Marketing Corporation's unaudited consolidated financial statements as of and for the nine months ended May 31, 1969: a. Were not prepared in accordance with accounting principles and practices consistent in all material respects with those followed in the preparation of the audited consolidated financial statements which are covered by our report dated November 14, 1968; b. Would require any material adjustments for a fair and reasonable presentation of the information shown except with respect to consolidated financial statements of National Student Marketing Corporation and consolidated subsidiaries as they existed at May 31, 1969 and for the nine months then ended, our examination in connection with the year ended August 31, 1969 which is still in process, disclosed the following significant adjustments which in our opinion should be reflected retroactive to May 31, 1969: 1. In adjusting the amortization of deferred costs at May 31, 1969, to eliminate therefrom all costs for programs substantially completed or which commenced 12 months or more prior, an adjustment of $500,000 was required. Upon analysis of the retroactive effect of this adjustment, it appears that the entire amount could be determined applicable to the period prior to May 31, 1969. 2. In August 1969 management wrote off receivables in amounts of $300,000. It appears that the uncollectibility of these receivables could have been determined at May 31, 1969 and such charge off should have been reflected as of that date. 3. Acquisition costs in the amount of $84,000 for proposed acquisitions which the Company decided not to pursue were transferred from additional paid-in capital to general and administrative expenses. In our opinion, these should have been so transferred as of May 31, 1969. 2. During the period from May 31, 1969 to October 28, 1969 there has been no material adverse change in the consolidated financial position of National Student Marketing Corporation and its consolidated subsidiaries, or any material adverse change in results of operations of National Student Marketing Corporation and its consolidated subsidiaries as compared with the nine month period ended May 31, 1969 after giving retroactive effect at May 31, 1969 of the adjustments disclosed above. The terms "financial position" and "results of operations" are used herein in their conventional accounting sense; accordingly, they relate to the consolidated financial statements of the business as a whole and have the same meaning when used in this letter as they have when used in our report. It is understood that this letter is for the information of Interstate National Corporation and is not to be quoted, or referred to in whole or in part, in any literature used in connection with the expense of securities except for any reference to it in an agreement and plan of merger or in a list of closing documents. Very truly yours, SEC Exhibit 54. [18A] The oral representations of Randell and Joy were not entirely accurate. Peat Marwick was not "tightening up" NSMC's accounting practices, but instead was simply employing the accounting principles and practices previously used by the company. See SEC Exhibit 54. Further, although the NSMC representatives suggested that the adjustments were a matter of timing and would be reflected in NSMC's final quarter rather than in the third quarter ended May 31, in fact a large portion of the deferred costs adjustments and the entire adjustment to paid-in capital were not included in the company's year-end financials. Transcript (Tr.) 181-83, 375-76. [19] Although there is some dispute whether all the Interstate representatives present at the closing participated in the caucus, resolution of that dispute is not necessary to the disposition of this case. [20] The pressure to close on October 31 derived from a public announcement to that effect; it was therefore likely that any delay would have had an adverse impact on the stock of both companies. The 4 p.m. deadline was the closing time of the District of Columbia office where the merger documents were to be filed. [21] Because October 31, 1969, was a state holiday in Nevada, the state where Interstate was incorporated, documents reflecting the acquisition of the company by NSMC were filed in that state on Monday, November 3, 1969, to take effect as of October 31, 1969. [22] The LBB opinion letter, delivered to NSMC at the closing, reads in pertinent part: Gentlemen: We have acted as counsel to Interstate in connection with the merger of Interstate into NSMC pursuant to the Plan. In such capacity, we have examined the Plan together with Exhibits A, B and C thereto; the charters, by-laws in minutes of Interstate and its Subsidiaries (as defined in the Plan), corporate records, certificates of public officials and of officers and representatives of Interstate and such other documents deemed necessary to enable us to give the opinion hereinafter expressed. Based on the foregoing and having due regard to legal considerations we deem relevant, we are of the opinion that: * * * * * * 7. The Plan has been duly executed and delivered by Interstate and is a valid and binding obligation in accordance with its terms and any corporate action by Interstate required in order to authorize the transactions therein contemplated has been taken. 8. To our knowledge, neither Interstate nor any Subsidiary is engaged in or threatened with any legal action or other proceeding, or has incurred or been charged with any presently pending violation of any Federal, state or local law or administrative regulation, which would materially adversely affect or impair the financial condition, business, operations, prospects, properties or assets of Interstate. * * * * * * 10. All other action and proceedings required by law or the Plan to be taken by Interstate at or prior to the Effective Date in connection with the Plan and the transactions provided for therein have been duly and validly taken. * * * * * * SEC Exhibit 52. [23] This belief stemmed from representations made by Epley in his telephone conversations with Peat Marwick. From those conversations Peat Marwick received the justifiable impression that counsel for both Interstate and NSMC were aware of the problems engendered by the adjustments and had concluded that the merger could take place nonetheless. See SEC Exhibit 71 at 2. [24] SEC Exhibit 57 at 3. [25] A significant cause of their concern was a statement contained in a copy of a letter from Peat Marwick to Epley which accompanied the signed comfort letter; that letter suggested that Epley was aware of the additional paragraphs on the day of the closing. SEC Exhibit 57, Letter dated October 31, 1969, from Peat Marwick to Mr. Eplee (sic). Jeffers, however, was concerned with the adjustments in general, stating that it was very unusual for them to be included in a comfort letter, that he was surprised the Interstate representatives had closed without a signed comfort letter, and that the deferred cost adjustment of $500,000 was "a hell of a big adjustment," Tr. 2142. [26] Although Breslin indicated to the Interstate directors that he was unfamiliar with the comfort letter information, he in fact had discussed the contents of the letter with the Washington Peat Marwick office which had called him after the closing on October 31. The Washington office informed Breslin that adjustments were required in NSMC's financials, that the closing was nonetheless completed, and that the numbers and problems involved were going to be included in the comfort letter. [27] SEC Rule 133(d), promulgated under the Securities Act of 1933 and in effect during the period covered by this action, exempts certain stock transactions from the registration requirements of the Act if sold in brokers' transactions and if the seller โ€” (1) Does not directly or indirectly solicit or arrange for the solicitation of orders to buy in anticipation of or in connection with such brokers' transactions; (2) Makes no payment in connection with the execution of such brokers' transactions to any person other than the broker; and (3) Limits such brokers' transactions to a sale or series of sales which together with all other sales of securities of the same class by such person or on his behalf within the preceding 6 months will not exceed the following: (i) If the security is traded only otherwise than on a securities exchange, approximately one percent of the shares or units of such security outstanding at the time of receipt by the broker of the order to execute such transactions, or (ii) If the security is admitted to trading on a securities exchange, the lesser of approximately (a) one percent of the shares or units of such security outstanding at the time of receipt by the broker of the order to execute such transactions or (b) the largest aggregate reported volume of trading on securities exchanges during any one week within the four calendar weeks preceding the receipt of such order. 17 C.F.R. ง 230.133 (1969). Rule 133 was rescinded effective January 1, 1973, 37 Fed.Reg. 23636 (1972). The sale of the NSMC stock under Rule 133 did not affect the accounting requirement limiting the amount sold to 25 percent in order to allow "pooling" of Interstate and NSMC financials. See note 6 supra. [28] The low and high bid prices of NSMC stock during the week of the closing and the first day thereafter were as follows: Date Bid October 27, 1969 $51 - $53 October 28, 1969 51 - 52ฝ October 29, 1969 51ฝ - 52ฝ October 30, 1969 49 - 50ฝ October 31, 1969 50 - 54 November 3, 1969 51 - 54ฝ Defendants' Exhibit L 202 at 8. [29] The restriction on the sale derived from an earlier merger transaction involving Interstate. In that transaction Interstate exchanged shares of preferred stock for the stock of a company it acquired. Those receiving the preferred stock, including Brown, were supposed to have an "investment intent" which restricted the subsequent sale of their Interstate shares. Although Schauer argued that the merger of Interstate and NSMC constituted a change of circumstances sufficient to permit the shares to be sold, counsel for White Weld did not agree and would not give an opinion on the validity of the Rule 133 transaction as to those preferred shares of Interstate stock. [30] The memorandum prepared by White & Case stated in part: We believe that procedures should be established to be followed in connection with dispositions of NSMC stock issued to persons who may be "affiliates" within the meaning of Rule 133. Prior to permitting any such disposition, you should receive the following: 1. Opinion of this firm that the transaction constitutes a "Rule 133 transaction". 2. Letter from the selling "affiliate" to the effect that: (a) He has not and will not, directly or indirectly, solicited or arranged for the solicitation of orders to buy in anticipation of or in connection with his sales. (b) He has made and will make no payment in connection with the execution of the sale to any person other than his broker. (c) A statement as to the number of shares of NSMC stock sold within the preceding six months by the selling "affiliate" and all such sales by members of his immediate family and anyone else who might be deemed an "associate" of the "affiliate". . . . . . 4. Two troublesome legal areas which may arise are the question of who constitutes an "affiliate" and how many persons may be combined into a single "person" for determining the applicability of the sale formula. In both of these situations, you should obtain an opinion of counsel for the possible "affiliate" after which we would confer with you as to the acceptability of the opinion. It is preferable for the initial determination of these questions to be made by counsel for the possible "affiliate" since it is essentially a factual matter, and they presumably are more familiar with the facts than you or we would be. SEC Exhibit 121. [31] The letter sent over Brown's signature reads as follows: Dear Sirs: As you know, I have been acting on behalf of myself and certain other persons who may be deemed to have been "affiliates" of Interstate National Corporation in connection with the proposed disposition of a portion of the Common Stock of National Student Marketing Corporation to be distributed to us in connection with the merger of Interstate National Corporation into National Student Marketing Corporation. Orders have been placed with White, Weld & Co. for the sale of such Common Stock by the persons and in the amounts set forth on the schedule annexed hereto. Such other persons have advised me that they have taken no action in connection with their proposed dispositions and I hereby confirm to you as follows: (a) I have not and will not, directly or indirectly, solicited or arranged for the solicitation of orders to buy in anticipation of or in connection with our proposed sales. (b) We have made and will make no payment in connection with the execution of our sales to any person other than our broker. (c) Neither I nor any of such other persons have effected any sales of Common Stock of National Student Marketing Corporation within the past six months. Very truly yours, Cameron Brown SEC Exhibit 123-A. The LBB Rule 133 opinion provides: Dear Sirs: We are familiar with the proposed sales of Common Stock of National Student Marketing Corporation referred to in the letter of Cameron Brown to you of even date herewith. A list of the proposed sellers and the number of shares which each proposes to sell are set forth in the schedule attached hereto. We hereby advise you that we are familiar with the identify (sic) of such sellers and that, in our opinion, each of such sellers is entitled to effect sales of the number of shares set opposite his name in such schedule within the limitation set forth in subsection (d) of Rule 133 under the Securities Act of 1933. Very truly yours, /s/ Lord, Bissell & Brook SEC Exhibit 123. [32] 15 U.S.C. ง 77v(a). [33] 15 U.S.C. ง 78aa. [34] 15 U.S.C. ง 78u(e). [35] 15 U.S.C. ง 77t(b). [36] The Commission has apparently restricted itself to these two violations in its charges against the defendants. See Pre-Trial Brief of the Securities and Exchange Commission at 167-70, 182-85; Tr. 16-17, 2738-41; Order of November 9, 1976. [37] Section 10(b), 15 U.S.C. ง 78j(b), reads as follows: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange โ€” . . . . . (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. [38] Rule 10b-5, 17 C.F.R. ง 240.10b-5, provides: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud. (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. [39] Section 17(a), 15 U.S.C. ง 77q(a), provides: It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly โ€” (1) to employ any device, scheme, or artifice to defraud, or (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser. [40] The Commission's Amended Complaint in this action also included various charges against defendants who have since resolved their differences with the SEC, see note 2 supra. None of those charges, which in essence detail a securities fraud scheme engineered by principal officers, directors and independent accountants of NSMC and fraudulent sales of two NSMC subsidiaries, involved any of the present defendants. In fact, there does not seem to be any dispute that these remaining defendants knew nothing of the alleged misconduct by the NSMC principals. [41] Pre-Trial Brief of the Securities and Exchange Commission at 184. [42] The SEC has not articulated a distinct theory upon which LBB may be held to have violated the securities laws. Instead, it simply charges the firm "with responsibility for all of Meyer's and Schauer's activities," SEC Pre-Trial Brief at 185, without citation to any statutory provisions, such as 15 U.S.C. งง 78t(a) and 78t(b), or common law principles, such as respondeat superior, upon which such vicarious liability could be founded. Despite this failing, the Court need not address the significant and difficult questions concerning LBB's responsibility for the actions of Meyer and Schauer, see SEC v. Savoy Industries, Inc., 190 U.S.App. D.C. ___, at ___-___ & nn. 48 & 49, 587 F.2d 1149, at 1170-1171 (1978); Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 48 & nn. 17 & 18 (2d Cir. 1978), since LBB has not challenged the SEC on this issue. To the contrary, the firm has fully associated itself with the conduct of both of its partners and apparently concedes its responsibility for their conduct. Further consideration of the issue is therefore unnecessary. [43] Although the SEC does not contest the defendants' assertion that the "clear and convincing" standard of proof governs the assessment of the evidence of fraud in this case, the application of that stringent standard to the present case nonetheless must be rejected. While routinely used in cases involving allegations of fraud, imposition of the clear and convincing standard is justified only where the consequences of the finding of fraud constitute a severe deprivation to the defendant, such as deportation of an alien, Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), or revocation of registration as a broker/dealer, Collins Securities Corp. v. SEC, 183 U.S.App.D.C. 301, 562 F.2d 820 (1977). SEC v. Savoy Industries, Inc., 190 U.S.App.D.C. at ___-___, 587 F.2d at 1168. The present proceeding, like that in Savoy Industries, threatens no such deprivation, only the imposition of an injunction against future violations. Although the impact of an injunction upon a lawyer may be more harsh than upon persons of different occupations, see Mathews, Liability of Lawyers Under the Federal Securities Laws, 30 Bus.Law. 105, 106 (1975); see also SEC v. National Student Marketing Corp., 402 F.Supp. 641, 652 (D.D.C. 1975), the incremental effect does not seem sufficient to justify the extraordinary step of requiring a higher standard of proof against lawyers than that which would be applicable to others. Moreover, certain of the allegations of harm asserted by the attorney defendants will occur, if at all, in subsequent independent proceedings that will be subject to their own particular standard of proof. Absent significant deprivations arising from the present proceeding, the preponderance of the evidence standard of proof is sufficient here, and will be applied. SEC v. Savoy Industries, Inc., supra. [44] The use of the mails and the facilities of interstate commerce is not disputed, thereby fulfilling that jurisdictional predicate. See 15 U.S.C. งง 77q(a), 78j. [45] Although only Brown and Meyer are charged as principals, each of the defendants presents arguments against primary violations. [46] Although the defendants place this issue within the confines of the nexus requirement, it is sometimes considered in the context of materiality, see Radiation Dynamics, Inc. v. Goldmuntz, 464 F.2d 876, 890 (2d Cir. 1972), for if the misrepresentation or omission is to assume actual importance in the deliberations of a reasonable investor, TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976), it must be capable of affecting the investment decision, thus necessitating its occurrence prior to the alleged sale. However, due to the defendants' emphasis in this instance on the lack of any possible causative relationship between their conduct and the "sales" alleged by the Commission, it appears that the defendants' placement of the issue in the nexus context is appropriate. [47] The Commission's challenge to the validity of the alleged commitment with White Weld, the defendants' agent, is not insubstantial. Typically such commitments are not made with one's agent, but with the actual purchaser of the securities. In the latter instance, as noted at pp. 702-703 infra, Rule 10b-5 imposes "no obligation to pull back from a commitment previously made by the buyer and accepted by the seller because of after acquired knowledge." Radiation Dynamics, Inc. v. Goldmuntz, 464 F.2d at 891 (emphasis added). Though it is unclear whether a similar immunity applies with respect to a commitment made with one's agent, it is not implausible to suggest that in an impersonal securities transaction involving an actively traded stock a commitment with a broker is equivalent to a commitment with an unknown buyer. Cf. SEC v. Texas Gulf Sulphur Co., 401 F.2d at 853 n. 17. In any event, it is unnecessary to reach this additional challenge by the Commission because the defendants' contention with regard to the time of commitment must be rejected. Moreover, even if the Court were to address the issue, it would be extremely difficult on the present record to determine the actual point of sale, and further, it is unlikely that the determination, if made, would add anything to the Court's analysis, see note 48 infra. [48] Receipt of the unsigned comfort letter is crucial because it is the version which first contained the material information which the SEC contends the defendants should have disclosed. See pages 705-709 infra. The signed version of the letter provided little additional information. [49] See note 28 supra. [50] On the morning of November 3, Meers allegedly called Brown and informed him that Tate had indicated that he and others were going to cut back on the number of shares they were to sell because the price had risen. Meers requested that Brown call Tate and reaffirm that a binding commitment had been made and that Tate was obligated to turn over his shares. Brown called Tate and made an unsuccessful attempt to persuade him to comply with the commitment. He then contacted his father, who agreed to substitute his NSMC shares for those withheld by Tate. [51] Brown's position that the SEC is prevented from challenging his commitment by its failure to present that contention in its Pre-Trial Brief must be rejected. See Post-Trial Brief for Cameron Brown, vol. I, at 99-101. The Commission has charged Brown and others with selling NSMC stock after receiving, but not disclosing, the comfort letter. Since, as the defendants point out, the commitment is the "sale" for purposes of the antifraud provisions, the Commission's previous allegations encompass the present challenge to the defendants' position. [52] Tr. 968, 1597-98. [53] Id. [54] See note 36 supra. [55] Although Northway defined materiality in the context of an alleged proxy statement violation of Rule 14a-9, 17 C.F.R. ง 240.14a-9, promulgated under ง 14(a) of the 1934 Act, 15 U.S.C. ง 78n(a), its logic applies equally to determinations of materiality under the antifraud provisions of the federal securities laws. See S. D. Cohn & Co. v. Woolf, 426 U.S. 944, 96 S.Ct. 3161, 49 L.Ed.2d 1181 (1976); TSC Industries, Inc. v. Northway, Inc., 426 U.S. at 445-46 n. 8, 96 S.Ct. 2126; SEC v. Savoy Industries, Inc., 190 U.S.App.D.C. ___, at ___, 587 F.2d 1149, at 1171; Goldberg v. Meridor, 567 F.2d 209, 218-19 (2d Cir. 1977); Alton Box Board Co. v. Goldman, Sachs & Co., 560 F.2d 916, 919-20 (8th Cir. 1977); Wright v. Heizer Corp., 560 F.2d 236, 248 (7th Cir. 1977), cert. denied, 434 U.S. 1066, 98 S.Ct. 1243, 55 L.Ed.2d 767 (1978); Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1040 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977). In addition, there is no unfairness in applying the Northway standard to the defendants' conduct in 1969. The Supreme Court's decision in Northway merely resolved the conflict whether the test for materiality was that the information in question "might" or "would" be important to the reasonable investor. Application of the stricter "would" standard, often articulated during the period surrounding the alleged misconduct in this case, see TSC Industries, Inc. v. Northway, Inc., supra, puts no burden on the defendants. [56] The failure to disclose the information contained in the comfort letter, and thereby to correct the previously issued nine-month financials, can be considered as either an implied misrepresentation or a simple nondisclosure. See 2 A. Bromberg, Securities Law: Fraud ง 6.11(510) (Supp.1977). [57] Although an accountant's view of materiality is not the same as the legal test, it may be relevant to that determination. William C. Colona, the Peat Marwick accountant assigned to prepare the comfort letter, testified that the adjustments were "very significant" and that they were made because they were material to the nine-month financials. He defined his concept of materiality by referring to a rule of thumb used by accountants, whereby an adjustment is material if it would reduce or increase net earnings, as previously reported, by ten percent of the previously reported figure. Tr. 203-08. As noted in the text infra, the adjustments contained in the unsigned comfort letter reduced the net earnings for the nine-month period by approximately 125 percent. [58] Although the defendants suggest that Peat Marwick's action in making the adjustments retroactive to May 31 simply reflects a conservative accounting practice, the comfort letter itself indicates that Peat Marwick followed the accounting principles and practices that it had used in preparing NSMC's previous financial statements. In any case, the suggestion does not address the question of whether, regardless of the reason, making the adjustments as of May 31 would have altered the total mix of information available and have assumed actual significance in the deliberations of the reasonable investor. [59] The reduction of the write-off of unbilled receivables to $200,000 in the signed comfort letter has little effect on the overall magnitude of the adjustments. [60] Relying on General Time Corp. v. Talley Industries, Inc., 403 F.2d 159 (2d Cir. 1968), cert. denied, 393 U.S. 1026, 89 S.Ct. 631, 21 L.Ed.2d 570 (1969), the defendants contend that a greater showing of materiality is necessary in a situation where there is no opportunity for the shareholders to vote on the basis of corrected financial information. Assuming there was no such opportunity here, the Court finds General Time to be distinguishable. That case involved an attempt to revoke proxies on the day of the shareholder meeting, not a transfer of securities on the basis of financial statements which were emphasized as important to the shareholders' decision in favor of the merger. As the court in General Time noted, the standard of materiality "is somewhat more elusive in relation to statements issued in a contested election than in regard to a . . . representation designed to induce the purchase or sale of securities, or a proxy statement seeking approval of a proposed corporate transaction . . .." 403 F.2d at 162. The unquestionable importance of the financials involved here meets the standard of materiality applicable to the antifraud provisions. See note 55 supra. [61] Determining materiality by what insiders knew at the time the merger was closed would effectively resurrect the position rejected by the Supreme Court in Mills. However, instead of substituting a "judicial appraisal of the merger's merits," 396 U.S. at 381, 90 S.Ct. at 620, the shareholders' decision would be supplanted by that of a few insiders. [62] SEC Exhibit 32 at 2. [63] Brown has suggested that calling off the merger in order to resolicit shareholders would have overruled the initial vote of those shareholders. Post-Trial Brief for Cameron Brown, vol. I, at 120. But in this case, with several conditions precedent, including receipt of a conforming comfort letter, built into the Merger Agreement approved by the Interstate shareholders, it is just as likely that, under the circumstances, aborting the merger more closely comported with the expressed will of the shareholders. The defendants also contend that the waiver provision contained in the Merger Agreement permitted the directors of the two corporations to waive any of the conditions precedent, including receipt of the comfort letter. Although the directors could possibly have waived receipt of the comfort letter itself pursuant to the provision, once it was received the shareholder authorization could not extend to nondisclosure of the receipt therein of material information affecting the shareholders' approval of the merger. The waiver provision could not authorize the parties to dispense with the antifraud provisions of the securities laws and transfer securities on the basis of materially false and misleading information. See Kaiser-Frazer Corp. v. Otis & Co., 195 F.2d 838, 843-44 (2d Cir.), cert. denied, 344 U.S. 856, 73 S.Ct. 89, 97 L.Ed. 664 (1952); 15 U.S.C. งง 77n, 78cc(a). Insofar as Smallwood v. Pearl Brewing Co., 489 F.2d 579 (5th Cir.), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 113 (1974), possibly suggests a different result, the Court respectfully disagrees. [64] The defendants also attempt to equate the actions of insiders of other companies acquired by NSMC with those of the reasonable shareholder, since those insiders also received the Peat Marwick comfort letter and still proceeded with their respective mergers with NSMC. While their actions are relevant to the determination of materiality, the value is minimal since they, like the defendants here, had more information than did the reasonable Interstate shareholder. [65] The defendants argue that their business decision to complete the merger and thereby to invest substantially in the fortunes of NSMC supports a finding that the adjustments contained in the comfort letter were not material, for if the adjustments were as adverse as the SEC suggests, the Interstate principals, especially Brown, would not have risked their interests by agreeing to the merger. The defendants are correct insofar as they argue that the actions of insiders are relevant to the determination of materiality. See SEC v. Texas Gulf Sulphur Co., 401 F.2d at 851. However, as noted, their actions, as well as those of the insiders of other companies, note 64 supra, and those of Jeffers, Interstate's chief financial officer, note 25 supra, clearly indicate that the comfort letter information, although not decisive, was important to their decision to proceed with the merger. [66] See generally, Lowenfels, Scienter or Negligence Required for SEC Injunctions Under Section 10(b) and Rule 10b-5: A Fascinating Paradox, 33 Bus.Law. 789 (1978); Comment, Scienter and SEC Injunction Suits, 90 Harv.L.Rev. 1018 (1977); Note, Scienter's Scope and Application in Rule 10b-5 Actions: An Analysis in Light of Hochfelder, 52 Notre Dame Law. 925 (1977); Note, SEC Enforcement Actions to Enjoin Violations of Section 10(b) and Rule 10b-5: The Scienter Question, 5 Hofstra L.Rev. 831 (1977); Note, Scienter and Injunctive Relief Under Rule 10b-5, 11 Ga.L.Rev. 879 (1977); Bucklo, The Supreme Court Attempts to Define Scienter Under Rule 10b-5: Ernst & Ernst v. Hochfelder, 29 Stan.L.Rev. 213 (1977); Berner & Franklin, Scienter and Securities and Exchange Commission Rule 10b-5 Injunctive Actions: A Reappraisal in Light of Hochfelder, 51 N.Y.U.L.Rev. 769 (1976). [67] The exchange ratio provided the Interstate shareholders with a one hundred percent premium on the value of their stock, see note 7 supra, and the value of both stocks was rising steadily, see note 28 supra. [68] The Sundstrand court formulated a two-part test for recklessness: first, the danger of misleading investors must be objectively obvious, and second, the defendant's conduct must, subjectively, have been the product of more than "inexcusable neglect." The latter requirement was imposed because of Hochfelder, see 425 U.S. at 190 n. 5, 96 S.Ct. 1375, and requires that the omission result from "something more egregious than even `white heart/empty head' good faith." 553 F.2d at 1045. As an example, the court stated that if "a defendant genuinely forgot to disclose information or [if] it never came to his mind, . . . even though the proverbial `reasonable man' would never have forgotten," 553 F.2d at 1045 n. 20, the subjective portion of the recklessness test would not be met. Brown alleges that he relied upon the advice of counsel, and that absent any indication from them that proceeding with the merger and stock sales was unlawful, he in good faith went ahead with the transactions. To the extent such reliance could be considered as a possible defense to the present action, see Floor, The Scienter Requirement Under Rule 10b-5 and Reliance on Advice of Counsel, 12 New England L.Rev. 191, 213-22 (1976), presumably as an equivalent to the "forgetfulness" example in Sundstrand, the Court finds it inapposite here. Brown did not rely upon actual advice of counsel, but, if at all, on counsel's silence, and this despite the fact that he never asked for a specific opinion on the legality of closing in light of the massive adjustments revealed by the Peat Marwick comfort letter. This blind inaction hardly constitutes good faith reliance on counsel. [69] Although only Schauer and LBB are charged with failing to interfere in the merger, apparently because Meyer was more closely involved, it is clear that the SEC's charges in this instance are against Interstate's counsel in general and therefore the term "attorney defendants" is used. [70] Post-Trial Memorandum and Proposed Conclusions of Law of Defendants Lord, Bissell & Brook, Max E. Meyer, and Louis F. Schauer at 98. [71] SEC Exhibit 52. [72] See note 22 supra. [73] For an extensive listing of articles dealing with the issue, see Hoffman, On Learning of a Corporate Client's Crime or Fraud โ€” the Lawyer's Dilemma, 33 Bus.Law. 1389, 1404-05 n. 38 (1978). [74] As noted, the Commission apparently has restricted its charges against these defendants to the two violations involved in the merger and the stock sales by Interstate principals. See note 36 supra. Because the charge of acquiescence in the merger suggests the possibility of a continuing violation with respect to other sales, the Court has carefully examined the record to determine whether the SEC has alleged as a basis for liability under this charge any transactions other than the merger. After reviewing the complaint, the SEC's pre- and post-trial briefs, and the transcripts, the Court finds that the Commission has not fairly asserted a claim of continuing violation in this instance. Thus, the alleged inaction of the attorneys after the merger had no link with the securities transaction in the merger, see page 705 supra, and could not have provided substantial assistance to the already completed merger. [75] The Commission contends that the defendants' failure to recognize the seriousness of their misconduct, by continuing to maintain that their actions were lawful and proper, demonstrates the need for an injunction. The Court, however, considers the defendants' conduct in this regard as simply putting the SEC to its burden of making a proper showing that injunctive relief is warranted. In the absence of more egregious conduct, such as dilatoriness or bad faith, the defendants will not be penalized for fully defending this action. [*] In an Order dated May 19, 1977, the Court specified that it would reserve rulings on certain objections to the admissibility of deposition testimony and documentary exhibits until the conclusion of trial. Rulings were reserved on SEC Exhibits 523 and 1053, and on Defendant's Exhibits L106 and S141a. Exhibits 523, L106 and S141a are deemed admitted, and the objections to the admissibility of Exhibit 1053 are sustained and that document is not admitted. Both parties have also objected to certain designations of deposition testimony. Each of the objections to such designations is overruled.

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 07/19/2019 01:06 AM CDT - 207 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF MIA G. v. JULIO G. Cite as 303 Neb. 207 State of Nebraska, on behalf of State of Florida, on behalf of Mia G., a minor child, appellant, v. Julio G., appellee. ___ N.W.2d ___ Filed May 24, 2019. No. S-18-642. 1. Attorney Fees. Whether attorney fees are authorized by statute or by the court’s recognition of a uniform course of procedure presents a question of law. 2. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court. 3. Constitutional Law: Due Process: Right to Counsel: Paternity. Due process requires that an indigent defendant in a paternity proceeding be furnished appointed counsel at public expense. 4. Paternity: Presumptions. A notarized acknowledgment of paternity creates a rebuttable presumption of paternity, but the presumption can be challenged on the basis of fraud, duress, or material mistake of fact. Appeal from the District Court for Lancaster County: Jodi L. Nelson, Judge. Affirmed. Patrick F. Condon, Lancaster County Attorney, and Anna Marx for appellant. Elise M.W. White, of White Law Office, P.C., L.L.O., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 208 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF MIA G. v. JULIO G. Cite as 303 Neb. 207 Miller-Lerman, J. NATURE OF CASE In this appeal, we are asked to decide whether a court may appoint counsel at public expense for an indigent indi- vidual who has signed a notarized acknowledgment of pater- nity pursuant to Neb. Rev. Stat. § 43-1408.01 (Reissue 2016) but who, in response to a suit by the State for child support, challenges the acknowledgment of paternity under Neb. Rev. Stat. § 43-1409 (Reissue 2016) on the basis of fraud, duress, or material mistake of fact. Because we conclude that such appointment is required by due process, we reject the State’s claim to the contrary and, accordingly, affirm. STATEMENT OF FACTS Mia G., a minor child, was born in 2016, and on March 25, 2016, Julio G. and Mia’s mother signed a notarized acknowl- edgment of paternity, attesting that Julio was the father of Mia. Julio is also named as the father on the minor child’s birth certificate. On May 1, 2017, the State, through the county attorney for Lancaster County, filed a child support action in the district court for Lancaster County against Julio on behalf of Mia and attached the signed acknowledgment of paternity to its complaint. On July 20, at a hearing before the district court referee, speaking through an interpreter, Julio admitted that he signed the acknowledgment of paternity in the hospital but challenged the acknowledgment and requested an attorney. Julio indicated that he does not read or speak English, that he did not know what he was signing, and that he was led to believe the acknowledgment related to medical care. Julio stated that “the doctors in Cuba had all told me that I could not have children.” Julio stated that he would not have signed an acknowledgment of paternity without a DNA test and that prior to mistakenly signing the acknowledgment, he and Mia’s mother had agreed they would complete genetic testing. Julio stated that “if I’m going to be ordered by the State to pay  - 209 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF MIA G. v. JULIO G. Cite as 303 Neb. 207 child support for a child for 18 years, I just want to be sure that they’re mine.” The referee found that Julio was indigent and, over objections by the State, appointed counsel for Julio. On July 25, the district court entered a written order that appointed counsel for Julio to be paid by Lancaster County. In the order, the court made clear that the action was a pater- nity case. Counsel for Julio proceeded to file pleadings consistent with Julio’s claims and obtained an order for genetic testing. The parties agree that following DNA testing, Julio stipulated to paternity, and the referee determined that Julio should pay child support. The district court found that Julio is the biologi- cal father of Mia and entered an order for child support. Julio’s appointed counsel moved for attorney fees and expenses. The district court granted attorney fees and expenses for fees incurred through the point at which appointed counsel sent a closing letter to Julio, consistent with its earlier order appoint- ing counsel. The State appeals. ASSIGNMENT OF ERROR The State claims, summarized and restated, that the district court erred when it appointed counsel to represent Julio at public expense. STANDARD OF REVIEW [1,2] Whether attorney fees are authorized by statute or by the court’s recognition of a uniform course of procedure presents a question of law. D.I. v. Gibson, 295 Neb. 903, 890 N.W.2d 506 (2017). We independently review questions of law decided by a lower court. Id. ANALYSIS The State contends that because paternity was presumed by the parties’ acknowledgment of paternity, it was not at issue in its child support case, and that the district court erred when  - 210 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF MIA G. v. JULIO G. Cite as 303 Neb. 207 it appointed counsel for Julio to be paid by Lancaster County. We reject the State’s assignment of error. [3] It is established in Nebraska that due process requires that an indigent defendant in a paternity proceeding be fur- nished appointed counsel at public expense. Carroll v. Moore, 228 Neb. 561, 423 N.W.2d 757 (1988). Although commenced as a child support case, paternity immediately became the cen- tral issue in this case when Julio challenged the acknowledg- ment of paternity, claiming a material mistake of fact under § 43-1409, and sought DNA testing pursuant to Neb. Rev. Stat. § 43-512.04 (Reissue 2016). It was established that Julio was indigent, and we conclude the district court did not err when it determined that paternity was at issue in the case and that Julio was entitled to court-appointed counsel. Relevant Statutes. We begin by setting forth the relevant and applicable stat- utes which frame the State’s child support action and Julio’s subsequent challenge to the notarized acknowledgment which placed paternity at issue in the case. Section 43-1409 provides: The signing of a notarized acknowledgment, whether under section 43-1408.01 or otherwise, by the alleged father shall create a rebuttable presumption of pater- nity as against the alleged father. The signed, notarized acknowledgment is subject to the right of any signatory to rescind the acknowledgment within the earlier of (1) sixty days or (2) the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order in which the signatory is a party. After the rescission period a signed, notarized acknowledgment is considered a legal finding which may be challenged only on the basis of fraud, duress, or mate- rial mistake of fact with the burden of proof upon the challenger, and the legal responsibilities, including the child support obligation, of any signatory arising from  - 211 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF MIA G. v. JULIO G. Cite as 303 Neb. 207 the acknowledgment shall not be suspended during the challenge, except for good cause shown. Such a signed and notarized acknowledgment or a certified copy or certified reproduction thereof shall be admissible in evi- dence in any proceeding to establish support. (Emphasis supplied.) Section 43-512.04 discusses the proce- dure for initiating an action for child support or medical sup- port on behalf of a child whose paternity is presumed by a notarized acknowledgment as described above in § 43-1409. Section 43-512.04(4) provides: In such proceeding, if the defendant is the presumed father as described in subdivision (1)(b) of this section, the court shall make a finding whether or not the pre- sumption of paternity has been rebutted. The presumption of paternity created by acknowledgment as described in section 43-1409 may be rebutted as part of an equitable proceeding to establish support by genetic testing results which exclude the alleged father as being the biological father of the child. A court in such a proceeding may order genetic testing as provided in sections 43-1414 to 43-1418. District Court Could Properly Appoint Julio an Attorney at Public Expense. At the initial court hearing, when the district court heard Julio’s challenge to his acknowledgment of paternity, the court correctly determined and stated in its order that the child sup- port case had become an action in which paternity was chal- lenged, and hence a paternity action. [4] Based on the language of § 43-1409, we have explained that a notarized acknowledgment creates a rebuttable presump- tion of paternity but that the presumption can be challenged on the basis of fraud, duress, or material mistake of fact. In re Interest of Kodi L., 287 Neb. 35, 840 N.W.2d 538 (2013); Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).  - 212 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF MIA G. v. JULIO G. Cite as 303 Neb. 207 In this case, Julio followed the path set forth in § 43-1409 for challenging an acknowledgment of paternity. At the initial referee hearing, Julio told the referee that he had reasons to believe that he was not the biological father of the child. He explained that he did not know what he was signing when he signed the acknowledgment of paternity, because he did not read or speak English, the acknowledgment form was in English, and he believed it was a form pertaining to a medical matter relating to the birth of the child. Although the better practice is to file a challenge in writing using the language of the statute, Julio’s challenge was sufficient under § 43-1409 to allege a material mistake of fact with regard to the acknowl- edgment form and was recognized as such by the referee. Julio acted promptly and unequivocally to put paternity at issue at the initial referee hearing, and the district court cor- rectly determined that the case related to paternity in its order for appointment of counsel. Julio’s subsequent motions to dismiss the complaint and for genetic testing and the affirm­ ative defenses asserted in his answer are consistent with a paternity proceeding. In Carroll v. Moore, 228 Neb. 561, 579, 423 N.W.2d 757, 767 (1988), we held that under the U.S. Constitution, an indigent person who is alleged to be the father of a child has “an absolute right” to court-appointed counsel in a paternity proceeding. See, also, Elstun v. Elstun, 8 Neb. App. 97, 589 N.W.2d 334 (1999), reversed in part on other grounds 257 Neb. 820, 600 N.W.2d 835. We noted that due process was implicated because, inter alia, the “threat of future incar- ceration resulting from a finding of paternity is significant in determining the need for counsel.” Carroll v. Moore, 228 Neb. at 578, 423 N.W.2d at 767. We stated: “The concepts of ‘fundamental fairness’ and ‘meaningful opportunity to be heard’ which are integral to the notion of due process make the right to counsel mandatory.” Id. at 579, 423 N.W.2d at 767. In Carroll v. Moore, we observed that all parties, includ- ing the State, are interested in an accurate and fundamentally  - 213 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF MIA G. v. JULIO G. Cite as 303 Neb. 207 fair determination of paternity. Although the posture of Carroll v. Moore differs from the current case, its principles logically apply to this action initiated by the State and in which paternity was inextricably linked to the prosecution of the matter. Because the child support action was based on a notarized acknowledgment of paternity, Julio’s challenge to the acknowl- edgment under § 43-1409 rendered the action a “paternity pro- ceeding.” Julio was indigent, and under our recognized course of procedure, the district court correctly concluded that he had a right to court-appointed counsel at public expense. In this case, the district court properly ordered that appointed coun- sel’s reasonable fees, up to and including preparation of the closing letter to the client, be paid by Lancaster County. CONCLUSION In this action initiated by the State, Julio, who was indi- gent, challenged his signed acknowledgment of paternity under § 43-1409 based on a material mistake of fact. Julio had a right to appointed counsel at public expense. Accordingly, the dis- trict court did not err when it appointed counsel for Julio and ordered Lancaster County to pay reasonable attorney fees. We affirm the orders of the district court. A ffirmed. 

633 F.Supp. 1209 (1986) The WARNER & SWASEY COMPANY, a Michigan Corporation, Plaintiff, v. SALVAGNINI TRANSFERICA S.p.A., an Italian corporation, and Guido Salvagnini, Defendants. No. CIV-85-275C. United States District Court, W.D. New York. April 28, 1986. *1210 Saperston, Day, Lustig, Gallick, Kirschner & Gaglione (Tricia Thomas Semmelhack, of counsel), Buffalo, N.Y., Cullen, Sloman, Cantor, Grauer, Scott & Rutherford (Thomas K. Ziegler, of counsel), Detroit, Mich., and The Cross & Trecker Corp. (Raymond J. Eifler, of counsel), Bloomfield Hills, Mich., for plaintiff. Moot & Sprague (Michael A. Brady, of counsel), Buffalo, N.Y., and Schnader, Harrison, Segal & Lewis (Gary A. Kimmelman, and Saul Sherman, of counsel), New York City, for defendants. CURTIN, Chief Judge. Defendant Salvagnini Transferica S.p.A., an Italian corporation, is the owner of two United States patents for automatic bending machines, including a line called the "Multi-bend P-4" model. Defendant Guido Salvagnini, who owns and controls the corporate defendant, is the patentee and inventor of these patents. On September 28, 1979, defendants entered into a license agreement with plaintiff's predecessor, Warner & Swasey Company, an Ohio corporation. This agreement gave plaintiff's predecessor an exclusive license to manufacture, use and sell machines covered by the defendants' patents in the "licensed territories" of North, Central and South America and Japan. From 1980 through 1984, plaintiff's predecessor went through a series of corporate mergers and acquisitions. At all times, the license agreement was held by the Wiedemann Division of the Warner & Swasey Company. In April of 1984, the company was acquired by Cross & Trecker Corporation. In May of 1984, defendants sent a notice of termination of the license agreement to Warner & Swasey Company, now a Michigan corporation, plaintiff in this action (see affidavit *1211 of Noel H. Ashworth, General Manager of the Wiedemann Division, Item 11, Exh. A). In this action, plaintiff alleges that defendants are infringing the patents, for which plaintiff claims to retain an exclusive license by virtue of the licensing agreement, by selling and offering to sell machines covered by the patent in the United States. Jurisdiction is premised on 28 U.S.C. § 1338(a), granting district courts jurisdiction in patent actions; 28 U.S.C. § 1332, diversity of citizenship; and 28 U.S.C. § 2201, the Declaratory Judgment Act. Defendants have moved to dismiss the complaint, pursuant to Rules 12 or 56 of the Fed.R.Civ.Pro., on two grounds: (1) plaintiff has no rights under the licensing agreement because it was assigned to plaintiff without the prior written consent of the defendants, as required by the terms of the agreement; and, in the alternative, (2) the licensing agreement provides that plaintiff may only bring suit to enforce any rights he may have under the agreement in Vicenza, Italy. Plaintiff has had full opportunity to respond. For the reasons below, I find that plaintiff is bound by the forum clause in the licensing agreement to bring this action in Italy. In light of this, defendants' first ground for dismissal will not be addressed, summary judgment is granted to defendants on the second ground, and the complaint is dismissed. The threshold issue is the applicability of the choice of forum clause. Plaintiff contends that the choice of forum clause, by its terms, covers only suits for breach of contract. Since the cause of action pleaded is patent infringement, plaintiff claims the choice of forum clause does not apply to this case. Article XVIII of the licensing agreement contains the choice of forum clause agreed to by the parties: In the event either party intends to file suit against the other on the basis of an alleged breach of this Agreement, or any provision thereof, such party shall notify the other party at least two months before such suit is instituted, stating its intentions and the basis of the proposed action. Both parties agree to use their best efforts during the two month period to try to resolve their differences and avoid the litigation. Any suit brought by Salvagnini shall be brought in Cleveland, Ohio; any suit brought by W & S shall be brought in Vicenza, Italy. Defendant Salvagnini filed an affidavit setting out his belief that any suit brought by his company would be brought in Ohio while any suit brought by plaintiff would be brought in Italy (Item 6, p. 2). A simple reading of Article XVIII would indicate that any suit arising between the parties out of their contractual relationship would be covered by the agreement. However, plaintiff maintains that "any suit" refers only to actions based on a breach of the agreement or any of its provisions, as set forth in Article XVIII. Plaintiff argues that under this reading, a suit for patent infringement would not be covered by Article XVIII (see affidavit of Noel H. Ashworth, Item 13, Exh. A). Since this is a motion for summary judgment, it would be inappropriate for the court to choose between two reasonable, but differing, interpretations of Article XVIII (see Ward Company v. Stamford Ridgeway Associates, 761 F.2d 117, 120 (2d Cir. 1985). Even taking plaintiff's more restrictive reading, however, the choice of forum clause still applies to this action. Although the cause of action pleaded is patent infringement, this action is ultimately based on alleged breach of the licensing agreement by defendants. In Article II of the agreement, defendants grant plaintiff an exclusive license to make, use or sell the machines covered by the patents in specified territories. Without this exclusive license, plaintiff would have no rights in the patents. Without a breach of Article II by defendants, there would be no infringement by defendants. If defendants have infringed the patents by selling machines *1212 in the licensed territory, as plaintiff claims, they have also breached Article II.[1] Under either defendants' or plaintiff's reading, the choice of forum clause set out in Article XVIII applies to this action. Plaintiff makes several arguments against requiring it to sue in Italy, in accordance with the choice of forum clause. Plaintiff claims that jurisdiction in patent infringement suits rests exclusively with United States district courts, 28 U.S.C. § 1338(a), so that an Italian court would not have jurisdiction to hear the case. Plaintiff also urges that even if an Italian court has jurisdiction, the U.S. patent laws are too complex to be addressed by a foreign court. Defendants respond by pointing out that the federal courts have patent jurisdiction exclusive of state courts, not foreign courts. They also point to a line of cases in which litigation or dispute resolution in a foreign forum agreed to by the parties is enforced — even in cases involving unique or complex American law. In urging that this court has jurisdiction exclusive of an Italian court, plaintiff relies on 28 U.S.C. § 1338(a). That section provides that federal district courts have original jurisdiction in civil actions arising under the patent laws, and that "[s]uch jurisdiction shall be exclusive of the courts of the states ..." Plaintiff points to Diematic Mfg. Corp. v. Packaging, 381 F.Supp. 1057 (S.D.N.Y. 1974), appeal dismissed, 516 F.2d 975 (2d Cir.1975), cert. denied, 423 U.S. 913, 96 S.Ct. 217, 46 L.Ed.2d 141 (1975) in which the court held that patent infringement claims may be heard only by federal courts, not arbitrators (or state courts). However, the force of the Diematic case has been undercut by statute, 35 U.S.C. § 294.[2] It has also been effectively overruled by Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., ___ U.S. ___, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), which held that American Safety Equipment v. J.P. Maguire & Co., 391 F.2d 821 (2d Cir.1968), on which the Diematic court relied heavily, does not apply in the international context. Plaintiff also points to cases in which a claim of patent infringement is raised between a licensee of a patent and his licensor. In Air Products and Chemicals, v. Reichhold Chemicals, Inc., 755 F.2d 1559 (Fed.Cir.1985), the court found that the complaint properly stated a claim and sought relief under the patent laws. Federal subject matter jurisdiction was not defeated by the fact that questions of contract law would necessarily have to be decided. Similarly, the court in Yarway Corp. v. Eur-Control USA, Inc., 775 F.2d 268 (Fed.Cir.1985), found that simply because a patent dispute arises between licensee and licensor does not mean that the cause of action arises in contract rather than patent so as to deprive a federal court of jurisdiction. In the instant case, plaintiffs properly seek relief for patent infringement and this court has jurisdiction exclusive of the state courts. However, in light of Mitsubishi, supra and a line of cases preceding it, this jurisdiction is not exclusive of other forums in the international context. See also, Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974). Plaintiff also claims that the U.S. patent laws are too complex to be applied by a foreign court. However, in the context of international business transactions, choice of forum clauses has been favored by the courts, even in cases involving complex American statutes. The Supreme Court has established a general policy favoring choice of forum clauses in the context of international business. The Bremen v. Zapata Off-Shore *1213 Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). In that case, a German and American corporation had contracted for one to tow the other's drilling rig from Louisiana to Italy. The choice of forum clause provided that "any dispute arising must be treated before the London Court of Justice." The Court concluded that, in admirality actions, such clauses are prima facie valid unless enforcement would be unreasonable under the circumstances. Id. at 10, 92 S.Ct. at 1913. The elimination of uncertainty as where suit would be tried and the effectuation of the intent of the parties were two important concerns. The Bremen has been cited with approval in Scherk, 417 U.S. at 518-19, 94 S.Ct. at 2456-57, and Mitsubishi, 105 S.Ct. at 3355. In Scherk, an American corporation purchased several businesses organized under the laws of Germany and Liechtenstein from a German citizen. It was agreed by the parties that any dispute arising from the agreement or its breach would be arbitrated in Paris, France, and the court enforced this provision in a suit based on the securities laws, specifically § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5. Similarly, in Mitsubishi, a Japanese corporation and a Puerto Rican corporation had agreed that all disputes arising out of or relating to a contract for the sale of cars in Puerto Rico would be handled by arbitration in Japan. The court ordered arbitration of the antitrust claims. It is important to note that in both Scherk and Mitsubishi, the holdings rested in large part on the Arbitration Act, 9 U.S.C. § 1 et seq., which sets forth federal policy favoring arbitration agreements. The Arbitration Act has no application in the instant case. However, the policy of enforcing choice of forum provisions also played a significant part. As the court in Mitsubishi stated: The Bremen and Scherk establish a strong presumption in favor or enforcement of freely negotiated contractual choice-of-forum provisions. Here, as in Scherk, that presumption is reinforced by the emphatic federal policy in favor of arbitral dispute resolution.... Moreover, the party may attempt to make a showing that would warrant setting aside the forum-selection clause — that the agreement was `affected by fraud, undue influence, or overweening bargaining power,' that `enforcement would be unreasonable and unjust,' or that proceedings `in the contractual forum will be so gravely difficult and inconvenient that [the resisting party] will for all practical purposes be deprived of his day in court.' The Bremen, 407 U.S., at 12, 15, 18 [92 S.Ct., at 1914, 1916, 1917]. But absent such a showing ... there is no basis for assuming the forum inadequate or its selection unfair. Mitsubishi, 105 S.Ct. at 3356-57. In the instant case, there is no evidence of fraud, undue influence or overweening bargaining power. On the contrary, the reciprocal nature of the clause is clear: if plaintiff brings a suit of the type covered by the forum selection clause, he shall sue in Italy. If the defendant brings such a suit, he shall sue in Ohio. This clause was clearly designed by the parties to place the burden of travel on the party who initiated the lawsuit. According to Mr. Salvagnini, this was an important aspect of the agreement (see The Bremen, 407 U.S. at 14, 92 S.Ct. at 1915). Nor is the choice of forum clause "unreasonable" so as to make the clause unenforceable (see The Bremen at 16, 92 S.Ct. at 1916). This is an international agreement with many potential forums. Defendants are Italian, plaintiff corporation is American. The agreement gives plaintiff the right to sell or use the machines covered by the patent in North, Central or South America, and Japan (see Articles I and II of the agreement). In this case, no court is the obvious place for suit, as was the Dutch forum selected by the parties in AVC Nederland B.V. v. Atrium Inv. Partnership, 740 F.2d 148 (2d Cir.1984). As in The Bremen, the forum clause here gives some certainty as to the cite of a suit between the parties. The agreement also provides some certainty about the law to be *1214 applied: the agreement is to be governed by the laws of Ohio (article XVII of the agreement). Plaintiff claims, however, that an Italian court would have difficulty applying complex U.S. patent law. This argument is not persuasive, particularly on the facts of this case. Although the patent laws are complex, there is no reason to believe that an Italian court would be any less capable of applying them than the International Chamber of Commerce in Paris, France would be in applying the securities law (Scherk) or the Japan Commercial Arbitration Association hearing a case involving the anti-trust laws (Mitsubishi). Additionally, there are contract issues in this case which must be decided. If the Italian court finds that the agreement was improperly assigned to plaintiff or that defendant properly terminated it in May of 1984, there would be no need to address any patent issues: there could be no infringement. On the other hand, if the Italian court found for plaintiff on these issues, it is unlikely that an Italian court would be required to delve into issues of patent validity, since the defendants, as ultimate owners of the patents, would be unlikely to argue that they are invalid. The Italian court might be faced with the issue of whether the machines allegedly being sold by defendants infringe the patents. At the present time, this issue is not contested by defendants. On the basis of the choice of forum clause in the licensing agreement, plaintiff has sued in the wrong forum. Summary judgment is granted to defendants and the complaint is dismissed. So ordered. NOTES [1] Of course, if plaintiff sued a third party for infringement, he could sue in any appropriate forum (Art. VII of agreement), since no breach of the agreement would be involved. [2] 35 U.S.C. § 294 provides that a contract involving a patent or a right under a patent may contain a provision requiring arbitration of disputes concerning patent validity or infringement. The law was enacted on August 27, 1982 and became effective six months later.

481 F.Supp. 1022 (1979) EMONS INDUSTRIES, INC., Plaintiff, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY and Reserve Insurance Company, Defendants. No. 75 Civ. 3227 (KTD). United States District Court, S. D. New York. October 18, 1979. Amended Opinion December 28, 1979. *1023 Greenberg, Irwin, Pellman & Slade, New York City, for plaintiff; Frederick R. Biehl, John F. Triggs, New York City, of counsel. Townley & Updike, New York City, for defendants Liberty Mutual Fire Ins. Co. and Liberty Mut. Ins. Co.; Philip D. Pakula, Harry H. Wise III, New York City, of counsel. Gillen, Turk & Caliendo, New York City, for defendant Reserve Ins. Co.; Charles P. Caliendo, Martin V. Martinelli, New York City, of counsel. Anderson, Russell, Kill & Olick, P. C., New York City, for Keene Corp., amicus curiae; Eugene R. Anderson, Jerold Oshinsky, R. Mark Keenan, Sherry Gilbert, New York City, of counsel. OPINION KEVIN THOMAS DUFFY, District Judge: This action was commenced by Emons Industries, Inc. [hereinafter referred to as "Emons"] against Liberty Mutual Fire Insurance Company [hereinafter referred to as "Liberty"] and Reserve Insurance Company [hereinafter referred to as "Reserve"]. The amended complaint charges Liberty and Reserve with having breached their respective contractual obligations to defend and indemnify Emons against product liability arising from its sale and distribution of pharmaceutical products. Emons seeks a declaration that Liberty and Reserve are contractually obligated to defend it in a number of suits now pending and those which may arise in the future together with reimbursement for costs previously incurred to defend these suits and amounts paid in settlement of one of these actions. Beginning in 1945 and continuing through much of 1971, Emons[1] engaged in the wholesale distribution of prescription and non-prescription drugs. During much of this time, Emons distributed Diethylstilbestrol, a drug which has come to be known as DES. It is a synthetic estrogen which during the 1950's and 1960's was widely prescribed for use by pregnant women to prevent certain complications including miscarriages and spontaneous abortions. Tragically, however, subsequent medical research has revealed that DES may be a *1024 potential cause of cancer in those women who ingested it during pregnancy as well as in their female offspring.[2] As a result, numerous lawsuits were commenced throughout the United States. The parties have brought to my attention the following suits which to date have named Emons as a defendant: In Abel v. Eli Lilly, et al. ["Abel"] it was charged that between 1947 through 1964 DES was distributed to the mothers of the female plaintiffs during pregnancy. The plaintiffs charge that as a result of the drug they have, as teenagers, developed cancerous or pre-cancerous conditions; In Bevelhymer v. Grant Chemical Co., et al. ["Bevelhymer"] the plaintiff charges that as a result of her mother having ingested DES during 1956-57, she later developed cancer. No date is given for when this cancerous condition either manifested itself or was diagnosed; In Collins v. Eli Lilly Co., et al. ["Collins"] the plaintiff charges that as a result of her mother having ingested DES during her 1957-58 pregnancy, in August, 1975, she discovered she suffered from clear-cell adenocarcinoma of her reproductive organs; In Ferrigno v. Eli Lilly Co., et al. ["Ferrigno"], denominated as a class action, the representative charges that her mother ingested DES during a 1952-53 pregnancy and, as a result, the plaintiff subsequently developed cancer; In Sochanchak v. Eli Lilly Co., et al. ["Sochanchak"], denominated as a class action, the complaint charges that as a result of the ingestion of DES by pregnant women between the years 1947 through 1964, their offspring have developed cancer or pre-cancerous conditions; And in Spivey v. Amfre-Grant, Inc. ["Spivey"] the plaintiff charges that as a result of the ingestion of the drug by her mother during a 1960 pregnancy, the plaintiff developed pre-cancerous lesions. This condition was first discovered in May, 1974. Liberty insured Emons against product liability under a series of policies between 1964 through 1970. There is some dispute, however, whether and to what extent Liberty may have insured Emons prior to 1965.[3] Reserve insured Emons against product liability for a one year period from November, 1970 through November, 1971. Upon commencement of the DES actions set forth above, Emons notified both Liberty and Reserve of the suits and requested that they defend it in these proceedings as provided in the contracts of insurance. Both Liberty and Reserve refused to provide a defense in these suits. Later, however, Liberty and Emons entered into an agreement, dated July 28, 1978, which provided that Liberty would reimburse Emons for all costs and expenses incurred in the defense of the DES actions. The agreement further provided that Liberty reserved the right to disclaim any liability for any judgments or settlements in these actions. Reserve, on the other hand, has consistently refused to defend or indemnify Emons with respect to these suits. None of the DES actions have yet gone to trial. The Abel action has been settled with respect to Emons for the sum of $40,000.[4] The Sochanchak action has been dismissed with respect to Emons for want of personal jurisdiction. The balance of these actions remain unresolved and occupy various stages within the pre-trial process. Plaintiff commenced this suit to establish the duty of Liberty and Reserve to defend *1025 it in these actions and to recover funds expended in the continuing litigation and settlement of these actions. Emons now moves for partial summary judgment insofar as its claims against Reserve are concerned and seeks leave to amend its complaint to include two recently filed suits in which it charges the defendants owe a duty to defend and indemnify. Liberty has also moved for summary judgment on three of its cross-claims lodged against Reserve which seek: A declaration that Reserve is liable for all or part of the defense costs in the pending actions; Judgment against Reserve for all or part of the $16,681.07 in past defense costs paid by Liberty; and Judgment against Reserve for all or part of the $20,000 paid by Liberty towards Emons' share of the Abel settlement. Finally, Reserve opposes both plaintiff's and Liberty's motions and itself moves for summary judgment on its second affirmative defense, contained in its amended answer, which provides that "the incidents which gave rise to the personal injury cases . . . were not actions or occurrences within the meaning of the defendant'[s] . . . contract or contracts." In addition, Reserve seeks leave to implead, as third-party defendants, a number of insurance companies who have insured Emons since 1972 after Emons had terminated all activities in the pharmaceutical industry. I turn first to Emons' motions for partial summary judgment and to amend its complaint. It is clear that leave to amend a complaint is to be freely granted. See Fed. R.Civ.P. 15(a). It is evident that these actions which plaintiff seeks to include herein involve DES cases in which it has been named as a defendant and in which it argues that Liberty and/or Reserve owe it a defense and indemnification should liability be found. Thus, Reserve's protestations notwithstanding, in light of judicial economy, plaintiff's complaint is amended to include a request for a defense and indemnification in the Ferrigno and Bevelhymer actions mentioned above. Plaintiff's motion for summary judgment, however, requires a more protracted analysis. It appears that Reserve no longer contests its "duty" to defend Emons in the DES actions outlined above. Originally Reserve asserted, by way of counter-claim against Emons, that as a result of certain material misrepresentations by Emons in procuring the insurance policy, Reserve was entitled to rescind the policy. However, by letter dated November 15, 1978, Reserve withdrew its counter-claim and "explored" the possibility of participating in past and future litigation expenses. More importantly, nowhere in its papers does it deny its duty to defend the plaintiff either in the settled action (Abel) or in those suits still pending. Indeed, Reserve states that the escence [sic] of the dispute between the parties does not center around the duty to defend under their policies but rather in the amount to which it is [sic] legally obligated to be expended by each in the defense of the underlying personal injury actions and further, which attorneys should conduct the defense of those personal injury lawsuits. Reserve's Memorandum of Law at 2. Consequently, insofar as plaintiff seeks a declaration that Reserve is under a duty to defend it in the actions listed above, the motion for partial summary judgment is granted. It remains to be determined to what extent must Reserve contribute to the past and future defense of Emons and who may designate the counsel to undertake such defense. Reserve argues that it owes only its proportionate share of the litigation expenses. It computes this share by use of a rather interesting, albeit self serving, formula: since the complaints in issue specify a period of exposure to DES and a manifestation of medical problems between 1947 through 1975, the amount to be contributed to litigation expenses should be fixed by the number of years a given carrier insured Emons over the liability years. Despite its *1026 facial appeal, this formula of apportionment must be rejected. Reserve's insurance policy provides that: The company [Reserve] shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury . . ., even if any of the allegations of the suit are groundless, false or fraudulent . . . It further provides that: The company [Reserve] will pay on the behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury. It is apparent that Reserve's duty to defend Emons extends beyond its duty to indemnify. Thus, "[t]he insurer has promised to relieve the insured of the burden of satisfying the tribunal where the suit is tried, that the claim as pleaded is `groundless,'" false or even fraudulent. Lee v. Aetna Casualty & Surety Co., 178 F.2d 750, 752 (2d Cir. 1949) (Learned Hand, C.J.). Indeed, in Lee the Court, construing an almost identical "duty to defend" provision, held that: the insurer will defend the suit, if the injured party states a claim, which, qua claim, is for an injury "covered" by the policy; it is the claim which determines the insurer's duty to defend; and it is irrelevant that the insurer may get information from the insured, or from any one else, which indicates, or even demonstrates, that the injury is not in fact "covered." 178 F.2d at 751. Thus, the Court concluded that "[w]hen . . . the complaint comprehends an injury which may be within the policy . . the promise to defend includes it." Id. at 753. Applying these principles to the case at bar, it seems clear that at least at this juncture, Reserve's duty to defend is coextensive with that imposed upon Liberty. Each complaint in issue states claims, which, qua claims, comprehend injuries potentially within the coverage of Reserve's policy despite the fact that the policy protected Emons for only a one year period. This is true even though there may be some dispute as to whether "bodily injury," as contemplated in Reserve's policy, resulted when the DES was ingested (1947 through 1965) or when the claimant contracted a cancerous or pre-cancerous condition (at various points after the birth of the female offspring). Suffice it to say that both interpretations are potentially liability producing. But see American Motorists Insurance Co. v. E. R. Squibb & Sons, Inc., No. 77-17593 (Sup.Ct.N.Y.Cty. October 20, 1977), appeal withdrawn with prejudice, 65 App.Div.2d 675 (1st Dep't 1978) (date of manifestation is crucial date). Thus, it may develop that these claims fall within either Liberty's coverage or that of Reserve. Consequently, the disparate number of years of coverage notwithstanding, both insurance companies stand on equal footing with respect to potential liability and their concomitant duty to defend.[5] Reserve's request for an order directing that it be permitted to appoint counsel to litigate those actions still pending must be rejected insofar as it attempts to oust the counsel chosen by Liberty who has, to date, defended these actions on behalf of Emons. While Reserve's duty to defend Emons in these actions is coextensive with that of Liberty, this does not give Reserve a license to pre-empt Liberty's choice of counsel. *1027 However, since there is a potential conflict as to when the bodily injuries in issue took place (ingestion or manifestation) which in turn may determine which, if any, of the operative policies cover indemnification, Reserve must be permitted to designate its own trial counsel to litigate these suits on behalf of Emons. The plaintiff, citing American Motorists, supra, argues that New York law is settled on this point and consequently no conflict exists. I disagree. American Motorists was a lower court case which was never appealed to the Appellate Division. True, while the decision is some indication of how the New York courts will resolve the issue, it is not dispositive.[6] Since the extent of Reserve's liability may very well turn upon the facts developed by trial counsel in these various actions, Reserve is entitled to designate trial counsel. Turning to Liberty's motion for summary judgment on its cross-claims against Reserve, it is granted in part and denied in part. Concerning Liberty's first and second cross-claims the motion is essentially granted. As previously determined, Reserve's obligation to defend Emons in the suits in issue is equal to that of Liberty. Thus, insofar as past defense costs are concerned, Reserve is obligated to reimburse Liberty for one half of said costs. Concerning future expenses, however, the motion must be denied. Since Reserve is permitted to designate trial counsel of its own choosing to represent Emons in the future, it will thereby satisfy its obligation to defend Emons. However, should Reserve decide to permit counsel designated by Liberty to continue to represent Emons, then it shall contribute its pro rata share of the litigation expenses. Finally, with respect to Liberty's third cross-claim, seeking a 50 percent contribution from Reserve for the settlement in the Abel case, the motion is denied. It is true that where an insurer is under a duty to defend the insured and wrongfully refuses to do so, he is liable for the reasonable settlement of the suit. Sucrest Corp. v. Fisher Governor Co., Inc., 83 Misc.2d 394, 371 N.Y.S.2d 927 (Sup.Ct.N.Y.Cty.1975), aff'd, 56 A.D.2d 564, 391 N.Y.S.2d 987 (1st Dep't 1977). It is equally clear, however, that the settlement must be reasonable. While I am inclined to find the settlement to be reasonable, the task of a Judge upon a motion for summary judgment is not to decide factual issues but rather to determine if triable issues of fact exist. However remote, it is possible that the settlement could be construed as unreasonable.[7] Suffice it to say that this is a question for the trier of fact. Turning finally to Reserve's motion for summary judgment, the motion is denied. Whether the injuries alleged in the several complaints at issue herein fall within the injuries covered in Reserve's insurance policy is a material question of fact properly left for the trier of fact. In addition, Reserve's motion to implead those insurance companies which insured Emons after 1971 is denied. Rule 14 of the Federal Rules of Civil Procedure permits a third-party action when the third-party defendant is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against him. In the case at bar, however, there is every indication that Emons ceased all activities in the pharmaceutical industry in 1971 and sold all its interests therein. See Footnote 2, supra. Indeed, after 1971 Emons acted as the lessor of railroad box cars and the operator of a shortline railroad. It is indeed unlikely that any insurance procured by Emons thereafter would contain coverage for product liability. In any event, Reserve has failed to show that these insurance policies would cover such liability. Since this information is clearly within the knowledge of *1028 Emons and as such discoverable by Reserve, the motion is denied without prejudice, to be renewed at such time that Reserve can demonstrate that the policies in issue may insure Emons against product liability. Accordingly, the motions of Emons, Liberty and Reserve are granted and denied as provided above. Settle judgment on five (5) days' notice. AMENDED OPINION KEVIN THOMAS DUFFY, District Judge: The plaintiff, Emons Industries, Inc., and the defendant Liberty Mutual Life Insurance Co., have jointly requested that I reconsider my earlier decision, dated October 18, 1979, on the narrow question of the manner in which Liberty's duty to defend the plaintiff and that of its co-defendant, Reserve Insurance Company, will be satisfied. In addition, the Keene Corporation, not a party to the instant action, requested and was granted an opportunity to file an amicus brief in support of the reargument. Since it has come to my attention that certain facts upon which my prior decision rested at least in part, were not accurately presented to me earlier, the motion to reargue is granted and the Opinion modified as provided below. In my earlier Opinion, I found that there was a potential conflict between Liberty and Reserve and permitted Reserve the opportunity to obtain counsel of its choosing to defend plaintiff. This conclusion was based upon the statement of Emons' counsel to the effect that Liberty had chosen plaintiff's counsel. As it developed, however, Emons retained its own counsel and when Liberty recognized its duty to defend the plaintiff, it concurred in the plaintiff's choice of counsel. Thus, there is no indication that any conflict presently exists either between the insured and the insurance companies or between the insurance companies themselves. Nor does a future conflict appear to be likely insofar as the defense of plaintiff is concerned. In addition, under the circumstances, any delay on the part of Emons or Reserve in making the motion to reargue was excusable and will not defeat this motion. I turn finally to the amicus brief filed herein. The brief argues the question of whether "manifestation" or "exposure" should govern an insurer's ultimate liability to an insured. This question, however, is not before me and I must decline the invitation to render an advisory opinion. The case before me only concerns the question of whether the defendants were under a duty to defend the plaintiff in the DES related cases. Having answered this question in the affirmative, I need not speculate as to which of the defendants, if either, will be required to indemnify the plaintiff. Accordingly, it was inappropriate to permit Reserve to retain independent counsel to defend the plaintiff. This is a choice belonging only to the plaintiff. Prashker v. U. S. Guaranty Co., 1 N.Y.2d 584, 154 N.Y. S.2d 910, 136 N.E.2d 871 (1956). Thus, Reserve is hereby ordered to satisfy its duty to defend plaintiff by contributing its pro-rata share of the current defense costs. SO ORDERED. NOTES [1] From 1945 until 1971 Emons operated under the name of Amfre-Grant in the distribution of pharmaceutical products. Thereafter, Amfre-Grant sold all its interests in the pharmaceutical area to the Ormont Drug & Chemical Company including the name Amfre-Grant. Amfre-Grant's Certificate of Incorporation was amended in 1972 to reflect this change, at which time Emons was adopted as the corporate name. Consequently, for purposes of this Opinion, Amfre-Grant will be referred to as Emons. It is also of interest to note that since the sale of Amfre-Grant in 1971, Emons has not been engaged in the business of pharmaceutical products. [2] In addition to the possible harmful long range effects of DES, it was also asserted that the drug was in fact "contraindicated" for use in the prevention of miscarriage. Indeed, in 1971 the Food and Drug Administration required DES labels to include a statement to that effect. [3] It would appear from the face of these later policies that the first policy to be issued to Emons was in 1945. See, e. g. Liberty's Exhibits A and B. Consequently, the real issue is the terms and extent of coverage of these earlier policies. Since neither Emons nor Liberty have copies of these earlier policies, the terms and coverage will have to be established, if at all, through extrinsic evidence. [4] The Court dismissed as to the other defendants on the ground that the statute of limitation had run. [5] Reserve's reliance upon Insurance Company of North America v. Forty-Eight Insulations, Inc., 451 F.Supp. 1230 (E.D.Mich.1978) is simply misplaced at this time. In Forty-Eight the court indeed does apportion the cost of defending the action among the several insurers. However, that case dealt with injuries resulting from exposure to asbestos. The court, addressing the question of whether the bodily injury, as contemplated in the several insurance policies, arose when the asbestos was first inhaled or when the injuries manifested themselves, held that the exposure theory applied. Thus, in Forty-Eight, the duty of the several insurance companies and the extent of the liability of each were capable of precise computation. In the case at bar, however, it is not clear which theory will be applied to the several cases now pending across the United States. Thus, to adopt the reasoning employed in Forty-Eight would be inappropriate. [6] It is clear that insofar as the Reserve policy is concerned, New York law will be controlling. Indeed, the policy itself so provides. [7] Indeed, Reserve argues that since the action was ultimately dismissed as to the other defendants, the Abel settlement was unreasonable. What Reserve fails to acknowledge, however, is that the case against Emons was somewhat stronger than against the other defendants.

Fourth Court of Appeals San Antonio, Texas July 19, 2017 No. 04-17-00295-CV SERVICE LIFE & CASUALTY INSURANCE COMPANY, Appellant v. TRINITY MESA REAL ESTATE SERVICES, LLC and Matthew Coale, Appellees From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-05243 Honorable Stephani A. Walsh, Judge Presiding ORDER Appellant’s petition for permissive appeal is DENIED. This appeal is DISMISSED FOR WANT OF JURISDICTION. We order that appellees recover their costs of this appeal. It is so ORDERED on July 19, 2017. _____________________________ Luz Elena D. Chapa, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 19th day of July, 2017. _____________________________ Luz Estrada, Chief Deputy Clerk 

319 So.2d 114 (1975) Odessa D. TAYLOR, Petitioner, v. STATE of Florida, Respondent. No. 75-604. District Court of Appeal of Florida, Second District. September 26, 1975. *115 Charles W. Ehrlich, St. Petersburg, for petitioner. Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for respondent. HOBSON, Judge. Petitioner, Taylor, seeks certiorari review of an order of the circuit court, acting in its appellate capacity, which reversed an order of the county court granting petitioner's motion to dismiss the information filed against her. The county court, after hearing, concluded that the undisputed facts would not show a prima facie case of guilt, and dismissed the charge, basing its finding on Jolley v. City of Jacksonville, Fla.App.1st 1973, 281 So.2d 901. The facts stipulated at the hearing were that at approximately 1:15 a.m. Police Officer Gell responded to a call of a disturbance created by loud record playing at a duplex apartment. When the officer stood on the porch of the duplex he smelled marijuana coming from one of the apartments. Officer Gell looked through a window and saw three males smoking what appeared to be marijuana cigarettes, but did not see any of the females smoking marijuana cigarettes nor did he see any cigarettes being passed around. The officer saw petitioner, Odessa Taylor, sitting on a couch between a male and a female. Officer Gell knocked on the door and arrested everyone in the room. On the floor next to the sofa was found a plastic baggie containing a small amount of marijuana, some marijuana particles were on the cushions of the sofa, and some crushed marijuana cigarette butts were found in the room. Taylor did not own or live in the premises and did not know the names of the owners. Someone had told her there was a party going on and she had arrived about twenty minutes prior to the arrest. Taylor does not smoke marijuana, was offered a marijuana cigarette at the party which she refused, and the only thing she had was some beer. Taylor was charged with possession of less than five grams of marijuana. Charges were later dropped by the State against the two persons who sat on the sofa on either side of Taylor. We are not concerned with whether the county court was correct in relying *116 on Jolley, supra. On this petition for writ of certiorari our review is limited to the face of the record to determine whether the circuit court has exceeded its jurisdiction, failed to follow the essential requirements of the law, or applied the wrong rule of law to admitted facts. Mathews v. Metropolitan Life Insurance Company, Fla. 1956, 89 So.2d 641; State v. Staley, Fla.App.2d 1957, 97 So.2d 147; Zediker v. State, Fla.App.3d 1969, 218 So.2d 464; Mangone v. State, Fla.App.3d 1969, 219 So.2d 447; Coffman v. State, Fla.App.4th 1974, 292 So.2d 608. Even where drugs are found on premises in joint possession, the proof must establish both the accused's knowledge of the presence of the drug and his ability to maintain control over it or reduce it to his personal dominion. Spataro v. State, Fla.App.2d 1965, 179 So.2d 873. This will not be inferred but must be established by proof. Frank v. State, Fla. App.1st 1967, 199 So.2d 117; Markman v. State, Fla.App.3d 1968, 210 So.2d 486; Harris v. State, Fla.App.3d 1974, 307 So.2d 218. The only evidence in the case sub judice with which the State could prove that Taylor could maintain control over the marijuana or had the ability to reduce it to her personal dominion was her proximity to it. This is circumstantial evidence. In order for circumstantial evidence to be sufficient for conviction it must be consistent with the accused's guilt, inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. Harris, supra. The evidence in this case is not only subject to the hypothesis of Taylor's guilt but is also subject to the equally reasonable hypothesis of her innocence in that the marijuana was in the possession of the owner of the apartment or one of the other occupants. Langdon v. State, Fla.App.3d 1970, 235 So.2d 321. Taylor did not have control or joint control of the premises, but was a mere visitor with no apparent authority to treat the drugs as her own. Arant v. State, Fla. App.1st 1972, 256 So.2d 515; D.M.M. v. State, Fla.App.2d 1973, 275 So.2d 308. Constructive possession may be inferred from other incriminating statements or circumstances. Frank, supra; Markman, supra. In the case sub judice the State did not present any other incriminating circumstances from which possession could be inferred. The trial judge was correct in holding that the State failed to make out a prima facie case of guilt under the statute involved. In reversing the county judge's order, the circuit court applied the wrong rule of law to admitted facts. Mathews, supra; Staley, supra; Zediker, supra; and Mangone, supra. The writ of certiorari is hereby granted, the order of the circuit court is quashed, and the cause remanded to the circuit court with directions to affirm the order of the county court. McNULTY, C.J., and BOARDMAN, J., concur.

WVILL WILSON AlTORNEYG~NERAL October 10, 1961 Honorable Robert S. Calvert Opinion NO. ~~-1160 Comptroller of Public Accounts Capitol Station Re: Exemption from inheritance Austin, Texas tax of devise to Shriners Hospitals for Crippled Children under submitted Dear Mr. Calvert: facts. In connection with your request on the above-captioned matter, you have advised us of the following facts. L. Alberta Watkins and her husband, who predeceased her, had executed a joint and mutual will. Paragraphs 3 and 5 of this will read as follows: “3. In case of a common disaster of the undersigned testators causing the death of each of us, then,,in that event, we jointly and severally devise and bequeath all of the property, whether real, personal or mixed of which we,may die seized and possessed to Shriners Hospital for Crippled Children, a Corporation, for the use and benefit of the hospitals owned, operated, and main- tained by said Corporation. 8, . . . “5. In case either testator survives the other, but makes no other or later will, then In such event, the estate of such survivor shall pass under and accord- ing to the program of distribution set forth in numerical Paragraph Three above." Article 14.06, Title 122A, 20-A, Tax.-Gen., Vernon's Annotated Texas Statutes, provides an exemption from inheritance taxes for transfers to charitable organizations if such charitable organizations are to use the gift within this State. Article 14.06 also contains the following further provisions for exemption which reads as follows: "Provided, further, that If the property so passing is to or for the use of a Honorable Robert S. Calvert, Page 2 Opinion No. ~~-1160 religious, educational, or charitable organization which conducts its operations on a regional basis, one such region of which includes the State of Texas, or any part thereof, then a bequest, devise or gift to be used within such region shall be'deemed to be'used within this state. "For purposes of this paragraph a region shall comprise not more than five contiguous states, either in whole or in part, one of which is the State of Texas." The Attorneys for Shriners Hospitals for Crippled Children have supplied you with certain information which they deem pertinent in the determination of the taxability of the devise in question and which is offere~din support of their position that said devise Is exempt from an inheritance tax. We quote the following excerpt from the letter submitted to you in connection with this matter. "Shriners Hospitals for Crippled Children is a wholly charitable corporation organized pursuant to the laws of the State of Colorado. This organization,owns and operates hospitals for crippled children located in different parts of the country; one such hospital being located in Shreveport, Louisiana, which services the region of Texas, Arkansas, Mississippi, and Alabama. In other words, crippled children of parents financially unable to supply needed orthopedic care, hospitalization and surgical treatment from the states mentioned are admitted for treat- ment at our Shreveport, Louisiana, hospital entirely without cost. Over the years since our hospitals have been in existence, many crippled children from the State of Texas have been admitted for treatment at a cost of many thousands of dollars which might otherwise have been spent in treating such children in public institutions within the State of Texas. "Shriners Hospitals for Crippled Children have always been affiliated with the Imperial Council of the Ancient Arabic Order of the Nobles of the Mystic Shrine of North America, Honorable Robert S. Calvert, Page ~3 Opinion NO. ~~-1160 a fraternal order. The 'charitable corpora- tion was organized tomoperate the hospitals which administer the charitable work of the Shrine fraternal order. The Shrine is operated under the so-called Lodge System form of government, which means~that Shrine Temples are chartered by the parent body and are~located throughout the country. Eleven such Shrine Temples are located in the State of Texas, one such temple being in Austinand another in Dallas, where the Watkins estate Is being administered. The other temples are at Amarillo; El Paso, Wichita Falls, Fort Worth, San Angelo, San Antonio, 'Waco, Houston and Galveston. The members of the Shrine fraternal order make annual payments toward the operation and maintenance of Shriners Hospitals for Crippled Children and the various Shrine Temples are responsible for locating and processing crippled children who are eligible for admis- sion to our hospitals. The Shrine Temples also provide transportation for the children to and from the hospitals and assist in many other ways ,in furthering the charitable endeavors of the organization. II . . . "As indicated above, -the funds to be received by Shriners Ho~spitalsfor Crippled Children from the estate of L. Alberta Watkins will be used at the Shreveport, Louisiana unit of Shriners Hospitals for Crippled Children for the care and treatment of crippled children from the State of Texas. An affidavlt to such effect over the signature,of one of our cor- porate officers was to have been attached to the inheritance tax report. . .' The submitted affidavit was signed by George M. Saunders, Secretary of the Shriners Hospitals for Crippled Children. The substance of the affidavit Is that George M. Saunders is the Secretary of.the Shriners Hospitals for Crippled Children and that, as such officer, he ~1s authorized to make the state- ments contained In .the affidavit on behalf of the Shriners Hospitals. These,,statcments:areto theeffect that the Shriners Hospitals for Crippled Children is a charitable Honorable Robert S. Calvert, Page 4 Opinion NO. ~~-11.60 Colorado corporation owning and operating hospitals for Crippled Children throughout the country and providing care for children of parents financially unable to provide such care. He states that the Hospitals are administered and operated on a regional basis and that one such hospital unit is located at Shreveport, Louisiana, and is known as the Shreveport unit of Shriners Hospitals for Crippled Children. He states that children from,,theState of Texas are treated there and that it is hereby . . .stipulated and agreed that the funds and/or assets received by Shriners Hospitals for Crippled Children from the estate of L. Alberta Watkins will be expended exclusively for the care, surgery, hospitalization and treatment of crippled children who are residents and domiciliaries of the State of Texas at the Shreveport, Louisiana, unit of said Shriners Hospitals for Crippled Children wholly without charge;. . ,' Attached to the affidavit is a copy of a resolution adopted by the Board of Directors of Shriners Hospitals for Crippled Children at a regular meeting held in Miami, Florida, on June 15, 1961. This resolution provides, in part, that, among other officers, the Secretary J.sauthorized, directed and empowered in the name and in behalfof Shriners Hospitals for Crippled Children, a Colorado corporation, to take certain enumerated legal steps. Paragraph 3 of the resolution reads as follows: "To make and execute all necessary contracts and documents affecting the property of Shriners Hospitals for Crippled Children, and other properties of the corporation;" Paragraph 9 reads as follows: "To make and execute any and all papers and documents as may be necessary from time to time to comply with the laws of the state in which any of the properties of the corporation may be located for the pur- pose of protecting and safeguarding the same;" Paragraph 10 reads as follows: "To make and execute such agreements, papers and documents as may be necessary from time to time to settle any controversies over the properties of the corporation, or such suits as may be pending affecting the properties of the corporation, and as may Honorable Robert S. Calvert, Page 5 Opinion No. ~~-1160 be deemed necessary.‘for the’protection bf the proparties of the corporati,on;” Tha foregoing facts clearly satisfy the requirements of the statute. The limitation as to the use and expenditure of the devise is in no way lnconsistant with the terms of the will. The Secretary of Shrlners Hospitals for Crippled Chll- dren is plainly authorized to so bind the corporation. The regional operation of the Shriners Hospitals for Crippled Children within the states of Texas, Arkansas, Mississippi and Alabama meets the statutory requirement that the region shall comprise not more than five contiguous states, either in whole or In part, one of which is the State of Texas. In Attorney Qeneralls,Opinion No. W-1141, the following statament appears in connection with the proper construction of the statutory provision hare under consideration: II .The Legislature did not see fit to pr&ide any yardstick for measuring the amount of baneflts which this State should receive from the charitable organization operating on a regional basis; yet it Is avident that tha Legislature did not intend to accord an exemption for all charitable, bequests, devises or gifts since this regional axemptlon provision is limited to regions of not more than five contiguous states, either In whole or in part; one of which is the State of Texas. Therefore, necessarily the statute contamplates that this State receive some teneflt bafore exemption will be allowed . . . The “benefits tast” established by Opinion No. NW-1141 as determinative of exemption has been mat in this case by Irrevocably committing the devise In question for the use and benefit of the crippled children of this State. You are, tharefora, advised that the devise Is exempt from an inheritance tax. SUMMARY A devisa to Shrlners Hospitals for Crippled Children, a Colorado charitable corporation, is exempt from an inherltanca tax undar Article 14.06, 20-A, Tax.-Gen., V.A.T.S., by vlrtua of the corporation’s Honorable Robert S. Calvert, Page 6 Opinion No. ~~-1160 regional operation in the states of Texas, Arkansas, Mississippi, and Alabama and by its irrevocable commitment of the devise for the use and benefit of the crippled children of this State. Very truly yours, WILL WILSON Attorney General of Texas Assistant MMP:lmc APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman Henry Braswell Tom Burrus Linw~ardShivers REVIEWED FOR THE ATTORNEY GENERAL By: Houghton Brownlee, Jr. 

652 P.2d 499 (1982) Rodney Lee SMITH, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. 5958. Court of Appeals of Alaska. October 15, 1982. *500 Michael L. Wolverton, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. Richard A. Weinig, Asst. Municipal Prosecutor, Allen M. Bailey, Municipal Prosecutor, and Theodore D. Berns, Municipal Atty., Anchorage, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ. OPINION COATS, Judge. Rodney Smith was convicted of concealment of merchandise in violation of AMC 8.05.550(B).[1] On appeal Smith argues his conviction should be reversed because the jury was not instructed that in order to convict him the jury had to find proof that he had a specific intent to conceal and a specific intent to permanently deprive the owner of the merchandise. We conclude that the ordinance does not require a specific intent to permanently deprive the owner of the merchandise. However, we interpret the ordinance as requiring an intent to conceal merchandise. We find that the instructions which the trial court gave in this case sufficiently informed the jury of the requirement of an intent to conceal and, accordingly, we affirm Smith's conviction. On January 9, 1981, in the Gambell Street Safeway store, security guard Kenneth Ray observed Smith carrying a bottle of Calvert's Extra whiskey. When Ray approached Smith, he observed a bulge in Smith's jacket. Smith then walked to the back of the store and left the bottle of whiskey in a section of wine bottles. Smith was ultimately convicted of concealment of merchandise. At trial, defense counsel requested an instruction which stated that a specific intent to permanently deprive the owner of the concealed merchandise was a necessary element for conviction. The prosecutor argued that the ordinance required only general intent. The trial court refused to instruct the jury that an intent to deprive the owner of property was a necessary element for conviction. The jury was instructed that willful concealment of merchandise was necessary for conviction. Instructions defining the words "willfully"[2] and "conceal"[3] were given. The jury was also *501 instructed that general intent[4] was necessary for conviction. We begin our analysis by noting that there is no state statutory prohibition to the enactment of AMC 8.05.550(B). Because Anchorage is a home rule municipality, the Municipal Assembly has the power, unless expressly or impliedly prohibited by state statute, to enact a concealment statute which does not require specific intent. Alaska Const. art. X, § II; Jefferson v. State, 527 P.2d 37, 43 (Alaska 1974). Enforcement of AMC 8.05.550(B) does not prevent giving any statute the full weight of law.[5] We will first consider whether a specific intent to permanently deprive is a necessary element of the offense. Smith argues that when drafting AMC 8.05.550(B), it was the legislative intent to include specific intent to permanently deprive as a necessary element. He states that the element of specific intent must be implied, because there is no indication that the municipality intended to delete the specific intent element designated in the state statute, AS 11.46.220[6] and its predecessor, AS 11.20.275.[7] He offers no authority for this position. This argument might be valid if the municipal ordinance were derived from the state statute. However, the shoplifting ordinance, AMC 8.05.550, was adopted from the Greater Anchorage Area Borough Code 18.05.040, which was identical to the current ordinance. Secondly, Smith argues that because shoplifting is a common law, larceny-type offense, specific intent to permanently deprive must be required by implication. Smith does not question the constitutionality of the ordinance. However, as noted in Kimoktoak v. State, 584 P.2d 25, 31 (Alaska 1978) and State v. Rice, 626 P.2d 104, 108 (Alaska 1981), the "danger of unconstitutionality is a relevant concern in determining whether to construe intent into the regulation." Most states enacted shoplifting statutes in the 1950's and 1960's, when it became apparent that traditional larceny statutes were inadequate to control shoplifting. See Note, Shoplifting — An Analysis of Legal Controls, 32 Ind.L.J. 20 (1956); Comment, Legislation — Survey and Analysis of Criminal and Tort Aspects of Shoplifting Statutes, 58 Mich. L. Rev. 429, 432 (1960); Comment, Shoplifting and the Law of Arrest: The Merchant's Dilemma, 62 Yale L.J. 788 (1952). As one commentator states: *502 Because the elements needed to prove larceny do not coincide with the evidence often available in shoplifting cases, convictions were difficult to obtain. For example, unless a witness saw the taking and subsequent departure from the premises without payment for the goods, it was hard to prove the essential element of an intent to deprive the owner of his property or to appropriate the property to the taker's own use. In an attempt to facilitate criminal prosecutions, some of the new statutes provide that certain specific acts shall constitute the crime of shoplifting. ... . Potentially, the most effective criminal provision is the `willful concealment' type of legislation ... In those states[[8]] with no statutory intent requirement, prosecution is facilitated by the fact that an offender can be accosted on the premises, and also by the use of statutory presumptions which provide that goods found concealed upon the person constitute prima facie evidence of willful concealment. 58 Mich. L. Rev. at 433, 435 (footnotes omitted). The North Carolina "willful concealment" statute was upheld as constitutional in State v. Hales, 122 S.E.2d 768 (N.C. 1961). The language of the statute is nearly identical to Anchorage's ordinance.[9] In Hales, the defendant argued that the statute was unconstitutional because the crime of shoplifting was a common law crime which required a specific intent to permanently deprive. The court concluded that "the offense charged therein is not based on a violation of the common law." Id. at 773. We agree. The Hales court also held that it was within the legislature's power to outlaw concealment of merchandise without requiring proof of a specific intent to permanently deprive. It ruled that such a law bore a rational relation to the need to deter store thefts and insulate store managers from civil suits for false arrests and imprisonment. Again, we agree. AMC 8.05.550(B) passes constitutional muster without requiring proof of a specific intent to deprive.[10] However, the Anchorage ordinance must be interpreted to require an intent to conceal property. The intent of the ordinance was to prohibit a person from intentionally concealing merchandise. To construe the ordinance otherwise could lead to constitutional problems by allowing a person to be convicted of a crime where he had no criminal intent. State v. Rice, 626 P.2d 104 (Alaska 1981). Construing the ordinance to require an intent to conceal meets the substantive due process problem suggested in Rice. Almost all people are aware that concealing merchandise will arouse suspicion and, if detected, will probably result in allegations of criminal conduct. We therefore believe that a person who violates the ordinance, if found to have a specific intent to conceal *503 merchandise, has received adequate notice that his conduct is illegal. In addition, concealment of merchandise is reasonably related to the legitimate purpose of preventing theft. See State v. Rice, 626 P.2d at 110. Although we believe that the instructions given in the instant case would have been better if the instruction on the elements of the offense had told the jury that the defendant had to have an intent to conceal the property, we believe that the instruction which stated that the jury had to find the defendant "wilfully concealed ... merchandise" was adequate. First, although the defendant asked the court to instruct the jury that a specific intent to permanently deprive the owner of property was required, he never specifically objected that the instructions which the trial judge gave did not adequately convey that the jury had to find an intent to conceal the property. Given the definitions of "willfully" and "conceal" which the court included in the jury instructions, we believe that the jury would have understood that in order to convict Smith, it had to find that he intended to conceal the merchandise. Furthermore, Smith's defense at trial was not that he did not intend to conceal the merchandise, but that he never concealed the merchandise. Any error in the instructions was therefore harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Accordingly the conviction is AFFIRMED. NOTES [1] AMC 8.05.550(B) provides: Concealment of Merchandise. It is unlawful for any person, without authority, willfully to conceal upon or about his person any merchandise or thing of value upon the premises where such merchandise or thing of value is kept for the purposes of sale, barter or storage. Any merchandise or thing of value found concealed upon or about the person and which has not theretofore been purchased by the person is prima facie evidence of willful concealment. [2] word willfully when applied to an act done, means that the act was done knowingly and intentionally and with a purpose. The word does not require in its meaning any intent to violate the law. [3] conceal means to hide, to withdraw from ordinary observation, to cover or keep from sight. [4] the crimes charged in this complaint, there must exist a union or joint operation of act or conduct in criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violate the law. Where a person intentionally does that which the law declares to be a crime, he's acting with criminal intent, even though he may not know that his act or conduct is unlawful. [5] The Alaska Supreme Court has considered whether a local ordinance differs from state statutes which were enacted for the purpose of establishing statewide uniformity. When state statutes are enacted to establish statewide uniformity in an area of law and a local ordinance appears to conflict with the goal of statewide uniformity of legislation, the court has found an implied prohibition of the local ordinance. See DeHusson v. City of Anchorage, 583 P.2d 791 (Alaska 1978); Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978). However, statewide uniformity is not a significant purpose of AS 11.46.220, concealment of merchandise. See also Simpson v. Municipality of Anchorage, 635 P.2d 1197 (Alaska App. 1981). [6] AS 11.46.220 provides in part: Concealment of Merchandise. (a) A person commits the crime of concealment of merchandise if without authority he knowingly conceals on or about his person the merchandise of a commercial establishment, not purchased by the person, while still upon the premises of the commercial establishment, with intent to deprive the owner of the merchandise. [7] AS 11.20.275 provided: Concealment of Merchandise. (a) A person who without authority, wilfully conceals upon or about his person the goods or merchandise of a retail business establishment, not theretofore purchased by the person, while still upon the premises of the retail business establishment, with intent to deprive the owner of the goods or merchandise, shall be guilty of a misdemeanor and, upon conviction, is punishable by a fine of not more than $500, or by imprisonment for not more than six months, or by both. [8] Currently three states have "willful concealment" statutes which do not require specific intent to permanently deprive. Idaho Code § 18-4626 (1979); N.H. Rev. Stat. Ann. § 644:17 (1981); N.C. Gen. Stat. § 14-72.1 (1981). See also Me. Rev. Stat. Ann. tit. 17, § 3501 (1955) (repealed 1975, ch. 499, § 19). [9] N.C. Gen. Stat. § 14-72.1 (1981) states: Concealment of merchandise in mercantile establishments. Whoever, without authority, wilfully conceals the goods or merchandise of any store, not theretofore purchased by such person, while still upon the premises of such store, shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than one hundred dollars ($100.00), or by imprisonment for not more than six months, or by both such fine and imprisonment. Such goods or merchandise found concealed upon or about the person and which have not theretofore been purchased by such person shall be prima facie evidence of a willful concealment. [10] The Hales case interpreted the North Carolina statute as requiring a specific intent to conceal. The court said: `Willfully conceals' as used in the statute means that the concealing is done under the circumstances set forth in the statute voluntarily, intentionally, purposely and deliberately, indicating a purpose to do it without authority, and in violation of law, and this is an essential element of the statutory offense of shoplifting. State v. Hales, 122 S.E.2d at 773.

598 F.Supp. 1124 (1984) Barbara KULSAR, Diane Yackle, Michelle Munro, Walter Schewtschuk, Stasia Schewtschuk, Betty Keeton, Vera Muerle, and Beverly Stalker, Plaintiffs, v. Gordon M. AMBACH, Commissioner of Education of the State of New York; New York State Board of Regents; State Board for Professional Medical Conduct; Jerome Ditkoff, D.O.; Lawrence Ames, M.D.; William Heyden, M.D.; David Sherman, M.D.; Robert Briber, and Marshall Grauer, Esq.; individually and as members of the State Board for Professional Medical Conduct; David Axelrod, M.D.; Commissioner of Health of the State of New York; Robert B. Abrams, Attorney General of the State of New York; and Douglas K. McGivney, Esq., Designee of the Attorney General, Defendants. No. CIV-84-932E. United States District Court, W.D. New York. December 21, 1984. Jeffrey A. Lazroe, Buffalo, N.Y., for plaintiffs. Peter B. Sullivan, Asst. Atty. Gen., Buffalo, N.Y., for defendants. MEMORANDUM and ORDER ELFVIN, District Judge. In this action under 42 U.S.C. § 1983 seeking injunctive relief as well as a declaration that certain laws of the State of New York unconstitutionally prohibit plaintiffs' physician from administering to them a "nutritional-hormonal" treatment for hypoglycemia, plaintiffs have moved for a preliminary injunction and defendants Ambach, Axelrod, Abrams and the New York State Board of Regents ("the Board") have moved to dismiss the Complaint or, alternatively, for summary judgment.[1] *1125 Plaintiffs have alleged that they are residents of Erie County, N.Y., "who wish to avail themselves of medical treatment for hypoglycemic disorders from Dr. Raymond L. Moreland." Complaint, at page 2. It is further alleged that defendants' acts and policies have made it impossible for certain plaintiffs suffering from various afflictions to receive "professional services of a preventive-nutritional oriented doctor specializing in vitaminal, nutritional and adrenal-cortical hormonal therapy." Ibid. Although the Complaint is somewhat ambiguous, it appears that it contains two distinct claims—namely, (1) that plaintiffs' constitutional privacy rights have been infringed due to the allegedly improper removal by defendants of Moreland's license to practice medicine; and (2) that their right to choose medical treatment of their choice has been violated by defendants' ban upon the treatment of hypoglycemia by utilization of a "nutritional, vitamin, adrenal-cortical and hormonal approach to treatment." (Complaint, at page 4). Defendants have asserted that there is currently pending before New York's Appellate Division, Third Department, a review of the Board's determination that had revoked Moreland's license, that Moreland's motion for a stay of the revocation order had been denied by the Appellate Division July 23, 1984 and that plaintiffs lack standing to assert any claim based upon any alleged violation of the rights of Moreland. Defendants have correctly stated that Moreland's license had not been revoked by the Board primarily due to his treatment of patients with substances such as raw adrenal cortex extract ("a.c.e.") and laetrile, but due to his failure to have examined and diagnosed patients properly, to have evaluated tests properly, his ordering of unnecessary tests and his demonstrated poor judgment and incompetence in the practice of medicine. See Report of Hearing Committee, annexed as exhibit C to the September 12, 1984 affidavit of Peter B. Sullivan. This Court agrees with defendants' position that, in view of the pending stateside appeal of the revocation of Moreland's license, it would be inappropriate for this Court to consider plaintiffs' claim that Moreland's license had been arbitrarily and capriciously removed due to his rendering to them of an unorthodox medical treatment. Moreland's entitlement vel non to practice medicine in the State of New York has been and is being addressed by proper stateside proceedings. This Court would not and properly could not permit Moreland presently to challenge herein the correctness of the stateside administrative or judicial proceedings and plaintiffs lack standing to assert before this Court that the removal of Moreland's license is improper. Plaintiffs' request for a preliminary injunction permitting Moreland to administer to them the adrenal-cortex treatment during the pendency of the stateside appeal must be denied due to the absence of a valid claim before this Court. In addition, it is clear that plaintiffs' claim of a constitutional right to receive the a.c.e. treatment must be dismissed. Plaintiffs' counsel's September 21, 1984 affidavit indicates that Moreland's treatment of plaintiffs, including the use of a.c.e., has relieved their symptoms and that, since the revocation of Moreland's license and the absence of treatments, their conditions have deteriorated. However, it is further averred in such affidavit that in January 1978 the federal Food and Drug Administration ("the FDA") had ordered a.c.e. removed from the marketplace, having found that it was obsolete, and had reclassified it as a new drug requiring testing prior to readmission to the market. Counsel's affidavit also states that no other physician known to plaintiffs now provides a.c.e. treatments and that a California entity has applied to the FDA for permission to test the effectiveness of a.c.e., thereby changing the status of a.c.e. from "new drug" to "investigative new drug." Assuming that these assertions are accurate, plaintiffs' *1126 claim of a constitutional right to a.c.e. treatment must still be dismissed. Although it has been held that the decision by a patient "whether to have a treatment or not is a protected right," her or his "selection of a particular treatment, or at least a medication, is within the area of governmental interest in protecting public health." Rutherford v. United States, 616 F.2d 455, 457 (10th Cir.), cert. denied, 449 U.S. 937, 101 S.Ct. 336, 66 L.Ed.2d 160 (1980) (a laetrile case). The constitutional right of privacy does not give individuals the right to obtain a particular medical treatment "free of the lawful exercise of government police power." Carnohan v. United States, 616 F.2d 1120, 1122 (9th Cir.1980). In the case at bar, plaintiffs have not named the FDA as a defendant, have not alleged that the FDA's removal of a.c.e. from the market had been in any way improper, or that there has been any inordinate delay or impropriety with respect to the FDA's processing of the California entity's application to test a.c.e.'s effectiveness. Moreover, plaintiffs have not alleged that they, Moreland or anyone else has made an application to New York's Commissioner of Education or its Commissioner of Health pursuant to section 6817 of New York's Education Law in order to be permitted to utilize or sell a.c.e. as a drug within this state. Plaintiffs' conclusory allegations that defendants' application of New York's Education Law and Public Health Law has infringed their right to a.c.e. treatment fail to state a claim upon which relief may properly be granted by this Court in the absence of allegations that plaintiffs have exhausted their administrative remedies by availing themselves of the procedures which those laws afford. See Carnohan v. United States, supra, at 1122. For these reasons, plaintiffs' motion for a preliminary injunction will be denied and the motion of defendants Ambach, Axelrod, Abrams and the Board for summary judgment will be granted. Accordingly, it is hereby ORDERED that plaintiffs' motion for a preliminary injunction is denied; and it hereby further ORDERED that the motion of defendants Ambach, Axelrod, Abrams and New York State Board of Regents for summary judgment of dismissal is granted, without prejudice. NOTES [1] Although defendants' motion papers refer to Fed.R.Civ.P. rule 54 rather than rule 56, it is clear that they are moving for summary judgment under the latter provision and plaintiffs have recognized such in their opposition papers.

746 So.2d 1132 (1999) PREMIER CRUISE LINES, LTD., INC., Appellant, v. Joan PICAUT, Eugene Picaut, et al., Appellees. Joan Picaut, Eugene Picaut, et al., Appellants, v. Premier Cruise Lines, Ltd., Inc., Appellee. Nos. 97-2013, 97-2258 and 98-2072. District Court of Appeal of Florida, Fifth District. October 22, 1999. Rehearing Denied November 29, 1999. David H. Simmons, Kenneth P. Hazouri, and Stephen J. Jacobs, of Drage, de Beaubien, Knight, Simmons, Romano & Neal, Orlando, for Premier Cruise Lines, Ltd., Inc. Douglas Bowdoin and Kevin K. Smith, of Smith, MacKinnon, Greeley, Bowdoin & Edwards, P.A., Orlando, and Stephanie Zorie, Santa Fe, New Mexico, W. Roderick Bowdoin of Darby, Peele, Bowdoin & Payne, P.A., Lake City, and J. Craig Bourne, Orlando, for Joan Picaut, Eugene Picaut, et al. ON MOTION FOR REHEARING PER CURIAM. The motion for rehearing is granted and we withdraw our opinion dated June 18, 1999, and substitute the following opinion in its place. We reverse the summary judgment and remand the cause to the trial court with directions. This cause originally came here on pleading issues but was, upon motion, relinquished to the trial court, which then granted summary judgment in favor of defendant. It is that summary judgment affirmed by this court which is the subject of the present motion for rehearing. *1133 The gist of the complaint below was that defendant cruise line had advertised its fares so that purchasers were misled into believing that the add-on "port charges" were only those charges to be paid to governmental agencies for the privilege of using their ports when, in fact, such charges included more than governmental fees and taxes. The plaintiffs also alleged, as a part of their false and fraudulent advertising claim, that the cruise line falsely billed for port charges not related to its port stay "with the excess being kept by Premier as an additional but secret charge for the cruise." It was on these allegations that plaintiffs were put to the test at the hearing on summary judgment. They failed the test on that portion of their false and fraudulent advertising claim which sought to limit the unambiguous definition of "port charges" to only fees and taxes paid for the use of the port but have not yet had their day in court on the fraudulent billing allegations. In the material contained in this record, the cruise line indicated what the fixed price for the cruise included and what it did not include: Fare includes: Your ship rate includes shipboard accommodations as reserved and paid for, ocean transportation, all meals and entertainment as provided aboard ship. The ship is your hotel for the entire cruise. NOT INCLUDED are gratuities, port charges, Splashdown programs, medical services, bar beverages, soft drinks, optional onshore activities, all taxes and any other items not specifically stated as included in the cruise rate. By separating "port charges" from "all taxes," in the excluded items, it is clear that the two are not synonymous. The provision above limits the "fare included" to those services received on board the ship; "port charges," as other courts have found and we believe reasonably so, are to cover those costs associated with port-side expenses which make the cruise possible and which are not itemized as being included in the fare. Assuming that defendant included only those charges associated with its port stay in its "port charges," its advertising was not false or fraudulent. We agree, however, that if plaintiffs can show that the cruise line used "port charges" as a vehicle to hide additional profits for its cruise operation, plaintiffs should be permitted to proceed with that portion of its class action related to these allegations. And while we agree with the trial court that this proof was not made at the hearing on summary judgment, plaintiffs do not appear to have been solely at fault. But the plaintiffs also asserted a belief that port charges were limited to only those charges that were paid to governmental authorities for the use of the port. They do not claim, nor can it be based on the material in the record, that this belief came from any representation made by Premier. They claim instead that the defendant never told them anything that would correct their misunderstanding. The trial court refused to accept plaintiffs' subjective understanding which was not based on some representation by defendant as a basis for making a misleading or fraudulent advertising claim. We agreed with the trial court in our initial opinion and we do so now. But a rejection of plaintiffs' claim that the cruise line profited from port charges by including improper charges or including expenses not incurred, even though not proved at the summary judgment hearing, seems to have been premature. The plaintiffs asserted by affidavit the following: [T]he port charges collected by Premier] while I was a Premier employee may have included costs and expenses other than amounts paid to ports and governmental authorities, and that Premier may have gained revenue through this practice. (emphasis added). To suggest that this evidence has sufficient weight to prove plaintiffs' allegations, is, to be charitable, foolish. But plaintiffs do not make this claim. Instead, they *1134 assert that because of stonewalling by Premier and certain court orders delaying discovery, they were denied the opportunity to develop the proof they, in good faith, believed was available prior to the summary judgment hearing. The record supports out their contention that discovery, although in process, was not completed at the time of the summary judgment hearing and this was brought to the attention of the trial judge. We overlooked this argument in our first analysis. We reverse the summary judgment entered herein solely on the basis of the allegation that Premier engaged in an unfair or deceptive trade practice by including in its port charges expenses not related to its port stay or expenses not incurred by it for its "port operation" and instead used this device for making additional profits from its cruise operation. We remand for further discovery on this issue. The initial certified class, made moot by the summary judgment herein reversed, was based primarily on plaintiffs' allegation of misleading or fraudulent advertising based on defendant's including charges other than port fees and taxes as "port charges." Because we agree with the trial court that the advertisement was not misleading for that reason—port charges are not limited to taxes and fees associated with the ship's port stay—we reject this reason for certifying the class. If, however, the trial court, after considering additional discovery, determines that there is a legitimate issue as to whether Premier engaged in a practice of hiding additional profits under the guise of port charges, it may wish to amend its previous certification to reflect that allegation. REVERSED and REMANDED with directions. ANTOON, C.J., DAUKSCH and HARRIS, JJ., concur.

NO. 07-09-00206-CR   IN THE COURT OF APPEALS   FOR THE SEVENTH DISTRICT OF TEXAS   AT AMARILLO   PANEL B   AUGUST 15, 2011     NICK LEE GRIEGO, APPELLANT   v.   THE STATE OF TEXAS, APPELLEE      FROM THE 242ND DISTRICT COURT OF HALE COUNTY;   NO. B17934-0902; HONORABLE EDWARD LEE SELF, JUDGE     Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.     ORDER             Appellant, Nick Lee Griego, has filed a motion in which he requests that this Court set reasonable bail pending final disposition of his appeal.  We grant his motion.             Appellant originally appealed his conviction by jury of the third-degree felony offense of evading arrest or detention using a vehicle and having been previously convicted of evading arrest or detention.  See Tex. Penal Code Ann. § 38.04(b)(2)(A) (West 2011).  Following a complex procedural journey, appellant’s case was remanded to this Court with directions to reconsider the issues he raises in light of Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010).  We have done so.  See Griego v. State, 07-09-00206-CR, 2011 Tex. App. LEXIS 5477 (Tex.App.—Amarillo July 18, 2011, no pet. h.).             In our most recent opinion, we rendered a judgment of acquittal as to the third-degree felony offense because the State, admittedly, failed to introduce evidence that appellant had, in fact, been previously convicted of evading arrest or detention.  Id. at *13–14.  We then found that, based on our review of the evidence, there was insufficient evidence to support a finding that appellant was guilty of the state jail felony offense of evading arrest or detention using a motor vehicle and, therefore, declined to reform the judgment to reflect such a conviction.   See Tex. Penal Code Ann. § 38.04(b)(1)(B); Griego, 2011 Tex. App. LEXIS 5477, at *31.  We did, however, find that the evidence was sufficient to support a conviction for evading arrest or detention, a class B misdemeanor, and remanded the cause to the trial court for a new trial on punishment.  See Griego, 2011 Tex. App. LEXIS 5477, at *35.             Appellant has filed in this Court his motion for reasonable bail pending final determination of his appeal.  We are authorized to set bail upon request by an appellant in the following circumstances: If a conviction is reversed by a decision of a Court of Appeals, the defendant, if in custody, is entitled to release on reasonable bail, regardless of the length of term of imprisonment, pending final determination of an appeal by the state or the defendant on a motion for discretionary review.  If the defendant requests bail before a petition for discretionary review has been filed, the Court of Appeals shall determine the amount of bail.  If the defendant requests bail after a petition for discretionary review has been filed, the Court of Criminal Appeals shall determine the amount of bail.  The sureties on the bail must be approved by the court where the trial was had.  The defendant's right to release under this subsection attaches immediately on the issuance of the Court of Appeals’ final ruling as defined by Tex.Cr.App.R. 209(c).[1] Tex. Code Crim. Proc. Ann. art. 44.04(h) (West 2007).  So, having reversed appellant’s conviction and having been requested to set bail at a time prior to the filing of a petition for discretionary review, we have authority to consider appellant’s motion.             Though article 44.04(h) directs that the defendant be released on reasonable bail under these circumstances, it does not specify the factors we are to consider when determining the appropriate sum.  We are not without guidance, however.  Certain general rules govern the amount of bail to be required: 1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.   2. The power to require bail is not to be so used as to make it an instrument of oppression.   3. The nature of the offense and the circumstances under which it was committed are to be considered.   4. The ability to make bail is to be regarded, and proof may be taken upon this point.   5. The future safety of a victim of the alleged offense and the community shall be considered.   Id. art. 17.15 (West 2005).  Consistent with article 17.15’s general principles, the Texas Court of Criminal Appeals outlined more specific factors to be taken into consideration when determining reasonable bail: (1) the length of the sentence, (2) the nature of the offense, (3) work history, (4) family and community ties, (5) length of residency, (6) ability to make the bond, (7) criminal history, (8) conformity with previous bond conditions, (9) existence of other outstanding bonds, and (10) aggravating factors involved in the offense.  Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex.Crim.App. 1981).  When, as here, the issue is reasonable bail pending final determination of an appeal following a reversal by an appellate court, the Fourteenth Court of Appeals outlined additional, perhaps even more specifically-tailored, considerations: (1) the fact that the conviction has been overturned, (2) the State’s ability (or inability) to retry the appellant, and (3) the likelihood that the decision of the court of appeals will be overturned.  See Aviles v. State, 26 S.W.3d 696, 699 (Tex.App.—Houston [14th Dist.] 2000, pet. ref’d).             With these several considerations in mind, we turn to appellant’s motion.  Appellant’s motion provides very little new information that would aid in our determination.  He points out that he has been incarcerated since June 2009 and represents that he is in poor health and in need of medical care.  The record on direct appeal provides us with additional information.             From the record, we observe that appellant’s criminal history is fairly significant.  As an adult, appellant has been charged with five offenses, ranging from the Class A misdemeanor of resisting arrest to the third-degree felony offense of tampering with evidence.  The other three offenses were state jail felonies.             In the instant case, appellant was originally charged with and convicted of another third-degree felony, but the State conceded that its failure to introduce evidence of a prior evading arrest or detention conviction at the guilt-innocence phase of trial rendered the evidence insufficient to sustain a conviction for the third-degree felony offense.  See Tex. Penal Code Ann. § 38.04(b)(2)(A).  We agreed with the State’s concession, found the evidence insufficient, and rendered a judgment of acquittal as to the third-degree felony.  The State urged us to find the evidence sufficient to sustain a conviction of the state jail felony offense of evading arrest or detention using a motor vehicle.  See Haynes v. State, 273 S.W.3d 183, 184 (Tex.Crim.App. 2008) (authorizing us to reform the judgment to reflect that appellant was convicted of the state jail felony if such offense was included in the jury charge and if the evidence was sufficient to support such conviction).  We found, instead, that the evidence was also insufficient to support a conviction for the state jail felony.  We may and do consider the fact that the State may not retry appellant for the third-degree or state jail felony offense.             This observation leads to other relevant considerations: the length of sentence and the nature of the offense.  See Rubac, 611 S.W.2d at 849.  We determined that the evidence was sufficient to support the finding that appellant was guilty of the class B misdemeanor, the maximum punishment for which is 180 days’ confinement.  See Tex. Penal Code Ann. § 12.22 (West 2011).  As it stands, then, appellant has been incarcerated well beyond the unenhanced maximum sentence for the offense of a class B misdemeanor.  That is not to say, however, that the State will be unable to enhance punishment for the misdemeanor offense by properly employing appellant’s prior convictions.  Nonetheless, we note that enhancement of a class B misdemeanor effects not the maximum punishment, but only the minimum punishment, making it mandatory that a defendant spend at least thirty days in jail.  See id. § 12.43(b) (West 2011).  So, it remains that the time appellant has spent in jail has exceeded the maximum punishment for a class B misdemeanor. Not to minimize any attempt to avoid detention by police, we also note the offense with which appellant was charged is a nonviolent one.  Here, the State made no allegation that appellant used his car as a deadly weapon.  Nor, as we have observed, was there any evidence of reckless or erratic driving.             We also consider appellant’s financial resources.  See Rubac, 611 S.W.2d at 849.  In his affidavit of financial status executed prior to trial, appellant represented that he had a gross monthly income of $1,600.00 to $2,000.00 and monthly expenses ranging from $1,095.00 to $1,195.00.  Appellant was represented by appointed counsel both at trial and throughout the appeal process, suggesting that he was indigent.  Considering that appellant has been incarcerated for over two years, we presume that his financial status has not improved.  In an affidavit in support of his motion, appellant maintains that he is without money or property that could be sold to raise funds to post a bond on appeal in any amount, explaining that the only means he has of securing money for a bond is through assistance of his three brothers.  His brothers have been able to garner $1,000.00 that they are prepared to use for appellant’s bail.             The record lends little assistance to our attempt to determine the nature and degree of appellant’s ties to the community of Plainview.  From their separate affidavits, it would appear that appellant’s three brothers live in Norman, Oklahoma.  The record indicates, however, that appellant has been in Hale County for a number of years.             With respect to the likelihood that the Texas Court of Criminal Appeals will reverse our decision, we are respectfully hesitant to predict the high court’s disposition of a petition for discretionary review in this case and will go only so far as to say that we remain confident that our decision employed the proper standard of review under Brooks, that the evidence was insufficient to sustain a conviction for the third-degree or state jail felony, and that our disposition of the case was correct under the law.  We do, however, note that the timing of this case in relation to the abrogation of factual sufficiency review in Brooks does lend a certain vulnerability to our disposition.  That is, although the Brooks court noted that the standard is far from new, the application of a single evidentiary sufficiency standard in this case presents some room for interpretation and further development.             Appellant’s pretrial bail was originally set at $5,000.00 but, it having been determined that such amount was insufficient, was increased to $10,000.00.  In his motion, he requests that this Court set bail at $1,000.00.  Considering the factors on which we have been provided information and endeavoring to strike a balance between ensuring appellant’s presence and avoiding oppressive bail, we GRANT appellant’s Motion for Reasonable Bail Pending Final Determination of Appeal and set bail pending final determination of appeal at $1,500.00.  See Tex. Code Crim. Proc. Ann. art. 44.04(h). IT IS SO ORDERED.   Per Curiam   Do not publish.      [1] As the Waco Court explained, the former Rule 209(c) of the Texas Rules of Post Trial and Appellate Procedure in Criminal Cases provided: As used in these rules, ‘final ruling of the court’ means (1) the 16th day after the date of the delivery of the court’s opinion or order where a motion for rehearing is permitted under Rule 208 but is not filed or rehearing is not granted on the court’s own motion, (2) the day after the date of the overruling of a motion for rehearing where a further motion for rehearing is not permitted under Rule 208, or (3) if a motion for rehearing pursuant to Rule 208(d) is granted, the day after the date of the disposition of the case on rehearing, whichever is later. In re Keeter, 134 S.W.3d 250, 253 (Tex.App.—Waco 2003, orig. proceeding).  

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: May 14, 2015 105535B ________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MEMORANDUM AND ORDER KRISTIAN WHEELER, Appellant. ________________________________ Calendar Date: March 24, 2015 Before: Peters, P.J., Egan Jr., Rose and Lynch, JJ. __________ Theodore J. Stein, Woodstock, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent. __________ Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered October 10, 2012, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree. Defendant was charged in a six-count indictment arising out of three separate sales of crack cocaine. In full satisfaction thereof, he pleaded guilty to criminal sale of a controlled substance in the third degree with the understanding that he would be sentenced as a prior felony offender to an eight-year prison term with three years of postrelease supervision. During the plea colloquy, County Court incorrectly informed defendant that he faced potential sentences of 15 years, rather than the correct maximum term of 12 years (see Penal Law §§ 220.16 [1];  -2- 105535B 220.39 [1]; 119 AD3d 1236, 1237 [2014]; compare Penal Law § 70.70 [3] [b] [i], with Penal Law § 70.70 [4] [b] [i]). Defendant was thereafter sentenced pursuant to the terms of the plea agreement. Upon defendant's initial appeal, we rejected his counsel's Anders brief and assigned new counsel to address, at a minimum, County Court's error in informing defendant of the incorrect maximum term of incarceration (119 AD3d at 1237). On this appeal, defendant's contention that his plea was not knowing, voluntary and intelligent because County Court erroneously stated his maximum potential terms of incarceration on the crimes charged is unpreserved for our review, as the record on appeal does not reflect that defendant made an appropriate postallocution motion (see People v Royce, 122 AD3d 1008, 1009 [2014]; People v Smith, 49 AD3d 1032, 1033 [2008], lv denied 10 NY3d 939 [2008]). Further, after reviewing the record, we decline to exercise our interest of justice jurisdiction in light of defendant's extensive experience with the criminal justice system, the lack of any indication that he relied on the erroneous information in accepting the plea agreement and the lack of any other evidence that the plea was involuntary (see People v Smith, 49 AD3d at 1033; People v Robles, 5 AD3d 180, 180-181 [2004], lv denied 2 NY3d 805 [2004]; see also People v Ortiz, 69 AD3d 966, 967-968 [2010]). Peters, P.J., Egan Jr. and Lynch, JJ., concur. ORDERED that the judgment is affirmed. ENTER: Robert D. Mayberger Clerk of the Court 

348 S.E.2d 593 (1986) Shirley PATTON v. David E. PATTON. No. 50A86. Supreme Court of North Carolina. October 7, 1986. *594 James B. Maxwell, Durham, for plaintiff-appellee. Clayton, Myrick & McClanahan by Robert D. McClanahan, and Robert W. Myrick, Durham, for defendant-appellant. PARKER, Justice. In this appeal from a judgment in equitable distribution of marital property under N.C.G.S. §§ 50-20, 50-21, ordering division of the marital property, defendant challenges the trial court's finding of fact concerning the value of defendant's interest in a closely-held corporation. The majority of the panel of the Court of Appeals held that the trial court's finding of fact was sufficient to support its conclusion as to the value of defendant's interest. For the reasons hereinafter stated, we hold that the trial court's judgment in this respect is not supported by sufficient findings of fact; consequently, we reverse in part the decision of the Court of Appeals and remand the cause for further proceedings. Plaintiff and defendant were married in 1959 and separated in 1981. A judgment of absolute divorce based on a one-year separation was entered on 1 December 1983. By judgment entered 28 August 1984, defendant was awarded his interest in Patco, Inc. (Patco), a closely-held corporation. In its judgment of 28 August 1984, the trial court made the following finding of fact: 34. That in evaluating the defendant's/husband's share of Patco, Inc., the Court has considered the estimate of the defendant himself as given in an insurance application approximately six months prior to the separation of the parties (plaintiff's exhibit 10), the book value of the business in 1980 through November, 1984, the relative ownerships of the stock in the company in 1980 through 1984 (it being noted that defendant is the sole (or 96%) stockholder of the company having purchased the interest of his brother with the company redeeming his stock by treasury stock), has considered the capitalization of earnings of the company, has considered the earning capacity of the company as demonstrated in the last four-to-five year period of time, the present economic outlook for the business and industry, the good will that has accumulated to the business through the hard work and competent efforts of the defendant, and the financial position of Patco, Inc., as demonstrated by its unaudited statements for 1980 through April 30, 1984. The value of the defendant's interest in Patco, after consideration of all these factors, at the *595 relevant time for evaluation for equitable distribution in this matter was at least $85,000. In providing for distribution of marital property, N.C.G.S. § 50-20(j) states, "[T]he court shall make written findings of fact that support the determination that marital property has been equitably divided." In the recent case of Poore v. Poore, the Court of Appeals stated that in its order of distribution of marital property, the trial court "should make specific findings regarding the value of a spouse's professional practice and the existence and value of its goodwill, and should clearly indicate the evidence on which its valuations are based, preferably noting the valuation method or methods on which it relied." 75 N.C.App. 414, 422, 331 S.E.2d 266, 272, disc. rev. denied, 314 N.C. 543, 335 S.E.2d 316 (1985). See also, Weaver v. Weaver, 72 N.C.App. 409, 324 S.E.2d 915 (1985) (valuation of a professional partnership interest). Certainly the requirement of specific findings is no less applicable in an equitable distribution order involving a spouse's interest in a closely-held corporation. The purpose for the requirement of specific findings of fact that support the court's conclusion of law is to permit the appellate court on review "to determine from the record whether the judgment— and the legal conclusions that underlie it— represent a correct application of the law." Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980). Furthermore, this requirement "is not designed to encourage ritualistic recitations by the trial court," but "is designed to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system." Montgomery v. Montgomery, 32 N.C.App. 154, 158, 231 S.E.2d 26, 29 (1977). We do not intend to imply, however, that the trial court should recite in detail the evidence presented at the hearing; rather the trial court should be guided by the same rules applicable to actions for alimony pendente lite, Peoples v. Peoples, 10 N.C.App. 402, 179 S.E.2d 138 (1971), and to actions for child support, Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985), thus limiting the findings of fact to ultimate, rather than evidentiary, facts. Applying these principles to the case before us, finding of fact No. 34 appears to be merely an enumeration of the factors considered by the trial court in determining the value of defendant's interest in Patco, lacking any indication of what value, if any, the trial court may have attributed to each of the enumerated factors. The trial court's conclusion that the value of defendant's interest in Patco "was at least $85,000" is nebulous, if not meaningless. The finding of fact is not clear as to how much more than $85,000 the interest may be worth. Distributions of this nature require more precise findings and determinations of ultimate facts. Therefore, in our view, finding of fact No. 34 is too vague and conclusory to permit appellate review. Since the order appealed from does not contain findings of fact sufficient to support the judgment, the decision of the Court of Appeals is reversed as to the sufficiency of finding of fact No. 34 and the cause is remanded to the Court of Appeals for further remand to the District Court, Durham County, for proceedings consistent with this decision. REVERSED IN PART AND REMANDED.

796 F.2d 473 Macaulayv.Life Ins. Co. of North America 85-1374 United States Court of Appeals,Fourth Circuit. 7/31/86 1 E.D.Va. AFFIRMED

51 Cal.4th 764 (2011) MARIA CABRAL, Plaintiff and Respondent, v. RALPHS GROCERY COMPANY, Defendant and Appellant. No. S178799. Supreme Court of California. February 28, 2011. *767 Richland, Timothy T. Coates and Lillie Hsu for Defendant and Appellant. Shernoff Bidart Darras Echeverria, Darraslaw, Frank N. Darras, Lissa A. Martinez; Donahue & Horrow, Michael B. Horrow; Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Respondent. Smith & McGinty and Daniel U. Smith for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Respondent. *768 OPINION WERDEGAR, J.— A truck driver working for Ralphs Grocery Company (Ralphs) stopped his tractor-trailer rig alongside an interstate highway in order to have a snack. Plaintiff's husband, decedent Adelelmo Cabral, driving his pickup truck home from work, veered suddenly off the freeway and collided at high speed with the rear of the stopped trailer, resulting in his own death. (Cabral was not intoxicated at the time; experts opined he either fell asleep at the wheel or lost control due to an undiagnosed medical condition.) The jury found both decedent and the Ralphs driver to have been negligent and to have caused the accident, but allocated 90 percent of the fault to decedent and only 10 percent to the Ralphs driver. The trial court denied Ralphs's motion for judgment notwithstanding the verdict and entered a judgment awarding plaintiff damages for the wrongful death of her husband. The Court of Appeal reversed, holding Ralphs owed no legal duty to avoid a collision between a negligent driver and the company's stopped truck. We disagree with the Court of Appeal's conclusions. California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).) While this court may and sometimes does find exceptions to the general duty rule, the recognized grounds for doing so (Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 [70 Cal.Rptr. 97, 443 P.2d 561]) are lacking here. That drivers may lose control of their vehicles and leave a freeway for the shoulder area, where they may collide with any obstacle placed there, is not categorically unforeseeable. Nor does public policy clearly demand that truck drivers be universally permitted, without the possibility of civil liability for a collision, to take nonemergency breaks alongside freeways in areas where regulations permit only emergency parking. (1) Were we to recognize the categorical exemption from the duty of ordinary care Ralphs seeks, no liability could be imposed even when a driver unjustifiably stops his or her vehicle alongside the freeway in particularly dangerous circumstances. For example, parking a tractor-trailer for the night immediately next to the freeway traffic lanes on the outside of a poorly lit downhill curve, merely in order to save the cost of a spot in a truck stop, could well be considered negligent. Yet the parking truck driver in that scenario would as a matter of law bear no responsibility for a collision if, as Ralphs contends, no duty exists to exercise reasonable care, in parking alongside a freeway, for the safety of motorists who may unintentionally leave the freeway. We therefore decline to create a categorical rule exempting those parking alongside freeways from the duty of drivers to exercise ordinary care for others in their use of streets and highways. *769 The general duty of ordinary care being applicable, it was for the jury to determine whether the Ralphs driver breached that duty, whether decedent Cabral was also negligent, whose negligence caused the collision, and how to allocate comparative fault between the parties. As Ralphs does not contend the evidence was insufficient to support the finding the company breached its duty of ordinary care and bore one-tenth of the total fault for the accident, we do not decide that question. FACTUAL AND PROCEDURAL BACKGROUND On the day of the accident, February 27, 2004, Hen Horn was employed by Ralphs as a tractor-trailer truck driver. On that evening, while driving his delivery route eastbound on Interstate 10, Horn stopped just beyond the Interstate 15 crossing to have a snack. He regularly made a brief stop at this location to eat part of the meal his wife had prepared for him. Horn stopped the tractor-trailer rig off the paved roadway, on what the investigating California Highway Patrol officer, Michael Migliacci, described as "the dirt portion of the shoulder." There is a large dirt area at that location between the eastbound Interstate 10 lanes and a transition road from northbound Interstate 15. In 2001, at the request of the California Highway Patrol, California's Department of Transportation (CalTrans) had placed an "Emergency Parking Only" sign in the area. Horn saw the sign from where he stopped, about 16 feet from the outermost traffic lane.[1] Decedent Adelelmo Cabral was driving home from work alone in his pickup truck, eastbound on Interstate 10. Juan Perez, driving on the freeway behind him, saw decedent's vehicle, which was traveling around 70 or 80 miles per hour, swerve within its lane, then change lanes rapidly and pass other vehicles. Finally, the pickup truck abruptly crossed the outermost lane of traffic and left the freeway "as if he was trying to get off the interstate." Decedent's vehicle then traveled parallel to the road along the adjacent dirt until it hit the rear of Horn's trailer. Perez saw no brake lights or other indications of an attempt to slow down before the collision. A toxicology report on Cabral, who died at the scene, was negative. In the absence of evidence of intoxication, suicide, mechanical defects or a medical condition, and considering how long Cabral had been awake on the day of the accident (which occurred in the evening), an expert witness called by plaintiff believed Cabral had fallen asleep while driving. A defense expert, believing *770 Cabral's reported lane and speed changes were inconsistent with the results of fatigue, opined the accident probably resulted from an unknown medical condition. Cabral's widow, plaintiff Maria Cabral, sued Ralphs for wrongful death, alleging the company's employee, Horn, had caused decedent's death through his negligence in stopping for nonemergency reasons on the freeway shoulder. Ralphs cross'complained for damage to its tractor-trailer. The jury found both Cabral and Horn were negligent, both their negligent acts were substantial factors in causing Cabral's death, and Cabral's negligence was a substantial factor in causing the damage to Ralphs's tractor-trailer. The jury assigned 90 percent of the responsibility for the accident to Cabral and 10 percent to Horn. Plaintiff's total economic damages were fixed by the jury at $480,023; noneconomic damages were $4.33 million. After reduction for Cabral's 90 percent comparative fault and offset by the $4,725 awarded Ralphs on its cross-complaint, plaintiff's net damage award was $475,298. Ralphs appealed from the judgment on the jury verdict and from the trial court's denial of its motion for judgment notwithstanding the verdict. A divided panel of the Court of Appeal reversed, agreeing with Ralphs that the company was entitled to judgment notwithstanding the verdict because it "owed no duty to Decedent." The majority rested its holding primarily on its conclusions that the possibility of a driver losing control of his or her vehicle and colliding with a tractor-trailer stopped off the freeway, in an area in which emergency parking is permitted, is too remote to be considered foreseeable and that the societal burden of imposing a duty would be great, as parked motorists or neighboring property owners could be held liable for failure to provide a "safe landing" for drivers leaving any type of roadway. We granted plaintiff's petition for review. DISCUSSION "A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support. [Citation.] [¶] . . . As in the trial court, the standard of review [on appeal] is whether any substantial evidence—contradicted or uncontradicted—supports the jury's conclusion." (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 [104 Cal.Rptr.2d 602, 18 P.3d 29].) In part II., post, we will consider whether substantial evidence supports the jury's verdict as to causation. We first must decide whether Ralphs owed plaintiff a duty of reasonable care to avoid injury to her husband, decedent Adelelmo Cabral. Duty is a question of law for the court, to be reviewed de novo on appeal. *771 (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213 [63 Cal.Rptr.3d 99, 162 P.3d 610]; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137, 863 P.2d 207].) I. Duty (2) The general rule in California is that "[e]veryone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . ." (Civ. Code, § 1714, subd. (a).) In other words, "each person has a duty to use ordinary care and `is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . .'" (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472 [63 Cal.Rptr.2d 291, 936 P.2d 70], quoting Rowland v. Christian, supra, 69 Cal.2d at p. 112 (Rowland).) In the Rowland decision, this court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland, at p. 113; accord, e.g., Castaneda v. Olsher, supra, 41 Cal.4th at p. 1213; John B. v. Superior Court (2006) 38 Cal.4th 1177, 1192 [45 Cal.Rptr.3d 316, 137 P.3d 153]; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477 [110 Cal.Rptr.2d 370, 28 P.3d 116]; Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 473.) As we have also explained, however, in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where "clearly supported by public policy." (Rowland, at p. 112; accord, John B., at p. 1191; Merrill v. Navegar, at p. 477.)[2] *772 (3) Before applying the Rowland considerations to the duty question posed here, we note an important feature of the analysis: the Rowland factors are evaluated at a relatively broad level of factual generality. Thus, as to foreseeability, we have explained that the court's task in determining duty "is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed . . . ." (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6 [224 Cal.Rptr. 664, 715 P.2d 624]; accord, Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 476; Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1841 [20 Cal.Rptr.2d 913].) In applying the other Rowland factors, as well, we have asked not whether they support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy. Thus in Rowland itself, considering whether the traditional property-law categories of invitee, licensee and trespasser should govern a property owner's duty of care, we observed that while in particular cases the certainty of injury, the burden of exercising due care, or the availability and cost of insurance may be greater as to one class of persons entering real property than as to another, such particular instances "do not warrant the wholesale immunities resulting from the common law classifications." (Rowland, supra, 69 Cal.2d at p. 119; see also Knight v. Jewett (1992) 3 Cal.4th 296, 315-320 [11 Cal.Rptr.2d 2, 834 P.2d 696] [danger of chilling participation in active sports justifies a categorical exception to the duty of ordinary care for participants' careless acts toward coparticipants]; Parsons v. Crown Disposal Co., supra, 15 Cal.4th at pp. 474-475 [societal burden of imposing a duty to guard against fright to a horse when properly using a vehicle or machine justifies not recognizing such a duty]; Castaneda v. Olsher, supra, 41 Cal.4th at pp. 1216-1217 [declining to recognize a landlord's duty not to rent to gang members in light of the burdens that recognizing such a duty would create].) By making exceptions to Civil Code section 1714's general duty of ordinary care only when foreseeability and policy considerations justify a categorical no-duty rule, we preserve the crucial distinction between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the court to make, and a determination that the defendant did not breach the duty of ordinary care, which in a jury trial is for the jury to make. We explained the distinction as to foreseeability in Ballard v. Uribe, supra, 41 *773 Cal.3d at page 573, footnote 6: While the court deciding duty assesses the foreseeability of injury from "the category of negligent conduct at issue," if the defendant did owe the plaintiff a duty of ordinary care the jury "may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant's conduct was negligent in the first place." An approach that instead focused the duty inquiry on case-specific facts would tend to "eliminate the role of the jury in negligence cases, transforming the question of whether a defendant breached the duty of care under the facts of a particular case into a legal issue to be decided by the court . . . ." (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 724, fn. 13 [110 Cal.Rptr.2d 528, 28 P.3d 249] [determining the scope of duty of an officer pulling over a vehicle for a moving violation].) (4) On the facts of a particular case, a trial or appellate court may hold that no reasonable jury could find the defendant failed to act with reasonable prudence under the circumstances. Such a holding is simply to say that as a matter of law the defendant did not breach his or her duty of care, i.e., was not negligent toward the plaintiff under the circumstances shown by the evidence. But the legal decision that an exception to Civil Code section 1714 is warranted, so that the defendant owed no duty to the plaintiff, or owed only a limited duty, is to be made on a more general basis suitable to the formulation of a legal rule, in most cases preserving for the jury the fact-specific question of whether or not the defendant acted reasonably under the circumstances.[3] Turning to the case before us, we observe that no question as to breach of the duty of ordinary care is presented. The issue of Horn's negligence was submitted to the jury, which found him to have breached his duty of care under the particular circumstances shown by the evidence, but assessed his comparative fault as slight, 10 percent to decedent's 90 percent. Ralphs does *774 not contend substantial evidence of Horn's negligence or the allocation of fault was lacking, i.e., that on these specific facts no reasonable jury could have found Ralphs was even 10 percent at fault in the accident. On the duty question that is presented here, the factual details of the accident are not of central importance. That Horn parked 16 feet from the outermost traffic lane, rather than six feet or 26 feet; that parking for emergencies was permitted in the dirt area he chose; that Adelelmo Cabral likely left the highway because he fell asleep or because of some unknown adverse health event, rather than from distraction or even intoxication—none of these are critical to whether Horn owed Cabral a duty of ordinary care. These facts may have been important to the jury's determinations of negligence, causation and comparative fault, but on duty California law looks to the entire "category of negligent conduct," not to particular parties in a narrowly defined set of circumstances. (Ballard v. Uribe, supra, 41 Cal.3d at p. 573, fn. 6; see also Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at p. 1841 [rejecting, as an improper "ultra-specific manner" of defining risk, the defendant's claim that "it was not reasonably foreseeable that the decedent would be struck by an errant vehicle `while standing on the shoulder of the roadway four feet inside the fog line.'"].) To base a duty ruling on the detailed facts of a case risks usurping the jury's proper function of deciding what reasonable prudence dictates under those particular circumstances. (5) Ralphs contends Horn "owed Cabral no duty to avoid stopping near the freeway for a nonemergency," while plaintiff claims truck drivers generally, and Horn specifically, owe other drivers "a duty of reasonable care . . . concerning the manner in which they park their trucks alongside California freeways." We take the issue between the parties to be whether a freeway driver owes other drivers a duty of ordinary care in choosing whether, where and how to stop on the side of the road. Because the general duty to take ordinary care in the conduct of one's activities (Civ. Code, § 1714, subd. (a)) indisputably applies to the operation of a motor vehicle, the issue is also properly stated as whether a categorical exception to that general rule should be made exempting drivers from potential liability to other freeway users for stopping alongside a freeway. A. Foreseeability and Related Factors We examine here the first three related considerations identified in Rowland: "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, [and] the closeness of the connection between the defendant's conduct and the injury suffered . . . ." (Rowland, supra, 69 Cal.2d at p. 113.) *775 (6) In the generalized sense of foreseeability pertinent to the duty question, that a vehicle parked by the side of a freeway may be struck by another vehicle leaving the freeway, resulting in injury to either vehicle's occupants, is clearly foreseeable. Drivers are supposed to control their vehicles and keep them on the traveled roadway, but common experience shows they do not always do so. Freeway drivers may be intoxicated, distracted, blinded by the weather or sun, sleepy or sick, and for any of these reasons or others may drive off the roadway. Mechanical problems with their vehicles can also force motorists to suddenly leave the freeway. If they do so at freeway speeds and collide with another vehicle parked alongside the road, they are likely to be injured or injure other occupants of the vehicles, or both. This general foreseeability is reflected in the Official Reports, in that numerous decisions have involved collisions between vehicles leaving a highway and vehicles or other obstacles on the roadside.[4] As we observed in Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58 [192 Cal.Rptr. 857, 665 P.2d 947] (albeit in discussing an issue of breach, not duty), "it is not uncommon for speeding and/or intoxicated drivers to lose control of their cars and crash into poles, buildings or whatever else may be standing alongside the road they travel—no matter how straight and level that road may be." Evidence at trial showed that safety standards and guidelines have been formulated with the goal of avoiding collisions between vehicles leaving freeways and trucks or other obstacles alongside the freeway. A highway engineer testified that freeway safety standards disapproved placing any "massive obstacle" within 30 feet of the traffic lanes. Where feasible, existing obstacles—objects massive or large enough to cause rapid deceleration or change in direction to a vehicle leaving the freeway—are to be removed. Where they cannot be removed, relocated or redesigned to bend or break, they are to be protected with guardrails or similar devices.[5] The Ralphs *776 transportation manager in charge of driver training and discipline testified that when he learned Ralphs drivers were stopping on the freeway side for nonemergency reasons he instructed them not to do so. He regarded such stopping as a danger to the drivers themselves and to other motorists "should they leave the roadway." The existence of guidelines seeking to keep the shoulder area free of massive obstacles supports a conclusion the possibility of vehicles leaving the freeway and colliding with obstacles is generally foreseeable. Ralphs cites Whitton v. State of California, supra, 98 Cal.App.3d 235, as holding a collision between a vehicle leaving the freeway and one stopped alongside is not foreseeable absent site-specific circumstances making an accident particularly likely at the location. But Whitton, heard on the plaintiff's appeal of a defense verdict, held only that substantial evidence supported the jury's finding highway patrol officers acted nonnegligently in stopping a speeding motorist and conducting sobriety tests while stopped on the freeway shoulder (where the patrol vehicle was hit by a drunken driver, injuring the motorist who had been pulled over). (Id. at pp. 242-243.) Whitton, in other words, decided a question of breach, not one of duty. In the course of its discussion, the Whitton court rejected the plaintiff's contention "that irrespective of the fact that the jury found on solid and substantial evidence that the officers acted reasonably, there is some sort of absolute liability on the part of the CHP officers" (Whitton v. State of California, supra, 98 Cal.App.3d at p. 242, italics added) because of a possibility a drunken driver would crash into the stopped vehicles, reasoning that such a possibility did not make the officers "negligent as a matter of *777 law" or render them "insurers of the motorists' safety from drunken drivers" (ibid., italics added). No such issue of negligence as a matter of law or absolute liability is involved here, of course. Here the jury found defendant's driver did act negligently, and defendant contends it had no duty of care towards plaintiff or her husband. Whitton, as noted, did not question the existence of such a duty of care. Indeed, as we have previously explained, the Whitton court "explicitly recognized that the CHP officers, in making the traffic stop, had a duty `to perform their official duties in a reasonable manner'" (Lugtu v. California Highway Patrol, supra, 26 Cal.4th at p. 717, quoting Whitton, at p. 241), but held the evidence at trial sufficient to show they had done so. Ralphs contends CalTrans's prior placement of an "Emergency Parking Only" sign at the accident site showed it was a safe place to park in an emergency, and hence "a safe place to stop, period," making a collision there unforeseeable. Relying on Richards v. Stanley (1954) 43 Cal.2d 60 [271 P.2d 23] and its progeny, Ralphs argues that for an accident to be considered foreseeable there must be "evidence of specific circumstances that make an accident in a particular place likely to happen." We disagree. To be sure, the evidence at trial showed Horn stopped his tractor-trailer at a location where the freeway was bordered with a dirt area, and there was no evidence the spot he chose entailed danger beyond the normal risk posed by parking on the shoulder of a freeway. These circumstances probably played a role in the jury's decision to assign Horn and Ralphs only a minimal share of responsibility for the collision, but they do not show lack of foreseeability for the entire category of negligent conduct at issue here. (Ballard v. Uribe, supra, 41 Cal.3d at p. 573, fn. 6.) As discussed earlier, the foreseeability question for duty purposes is not whether Horn could reasonably have foreseen an accident at that exact spot along the highway, but whether it is generally foreseeable that a vehicle stopped alongside a freeway may be hit by one departing, out of control, from the road. (7) Moreover, that emergency parking was permitted where Horn stopped, and would presumably not have been considered negligent, does not imply a collision at that spot was unforeseeable. The reasonable care required by negligence law depends on all the circumstances, and there are many acts prudent to do under the pressure of exigency that would be negligent but for the emergency. (See, e.g., Lane v. Jaffe (1964) 225 Cal.App.2d 172, 176 [37 Cal.Rptr. 171] [evidence supports finding that a driver who parked his car with a flat tire on a narrow median was not negligent].) The difference between parking a truck alongside the freeway in an emergency and parking in the same location to eat a meal or make a telephone call does not lie in the *778 type or degree of foreseeable risk; in both cases it is foreseeable, in the general sense pertinent to duty, that a vehicle might depart from the freeway and hit the stopped truck. The difference lies instead on the justification side of the negligence balance. As plaintiff observes, in the emergency situation "[s]ociety tolerates that risk because allowing drivers to stop in an occasional emergency outweighs the risk." The balance is different—or, at least, juries may find it so—when the stop is made for discretionary personal purposes.[6] Nor do Richards v. Stanley, supra, 43 Cal.2d 60 (Richards), and our subsequent key-in-the-ignition cases stand for the proposition that absent special circumstances a collision between a vehicle parked alongside the freeway and one departing out of control from the freeway is unforeseeable. The Richards line of cases involves significantly different facts. In Richards, the defendant had left her parked car unlocked, with the ignition key in the lock. A thief took the car and, driving carelessly, injured the plaintiff. (Richards, supra, 43 Cal.2d at pp. 61-62.) Relying on the principle that ordinarily, "in the absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another" (id. at p. 65), and the corollary rule that "an automobile owner is not ordinarily negligent if he lends his car to another; except in certain special circumstances . . ." (id. at pp. 65-66), we concluded the defendant's "duty to exercise reasonable care in the management of her automobile did not encompass a duty to protect plaintiff from the negligent driving of a thief" (id. at p. 66). In later decisions we distinguished Richards, finding special circumstances in the characteristics of the vehicle or piece of equipment, or in the manner or location in which a vehicle was left vulnerable to third party driving, that warranted recognition of a duty. (See, e.g., Ballard v. Uribe, supra, 41 Cal.3d at p. 573; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 184-186 [203 Cal.Rptr. 626, 681 P.2d 893]; Richardson v. Ham (1955) 44 Cal.2d 772, 776 [285 P.2d 269].) Richards's limitation on the duty of a vehicle owner "to protect third parties from the unauthorized use of the vehicle by another" (Ballard v. Uribe, supra, 41 Cal.3d at p. 572), a limitation derived from the principle that in the absence of a special relationship there is ordinarily no duty to control the dangerous conduct of another person (Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at pp. 184-185; Richards, supra, 43 Cal.2d at pp. 65-66), has no application to the type of negligent conduct at issue in this case. That *779 the risk created by a thief's negligent driving was deemed unforeseeable in Richards does not tend to establish that the risk created by Horn's own negligence in stopping, with inadequate justification, by the side of a freeway should also be deemed unforeseeable. (See Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at pp. 1843-1844 [distinguishing Richards, where the defendant's own negligence led to the plaintiff being stopped by the side of the freeway, creating a risk of collision with vehicles leaving the roadway].) Richards reasoned in part that the defendant, by leaving her car unlocked and unguarded, did not increase the risk of an accident over the risk that would have existed had she intentionally entrusted her car to another. (Richards, supra, 43 Cal.2d at p. 66.)[7] But parking a tractor-trailer rig alongside the freeway in what CalTrans calls the "recovery zone" (CalTrans, Traffic Manual, supra, ch. 7, Traffic Safety Systems, § 7-02.1, p. 7-2), as Horn did, does increase the risk of a collision over the risk existing when no obstacle is present. Richards, which concerned conduct that merely allowed a third party to take a vehicle and injure the plaintiff, does not stand for the proposition that special circumstances should be required for the instant, very different category of negligent conduct. (8) As the above discussion suggests, the question of "the closeness of the connection between the defendant's conduct and the injury suffered" (Rowland, supra, 69 Cal.2d at p. 113) is strongly related to the question of foreseeability itself. Richards's holding could fairly be characterized as resting on a too attenuated connection between the defendant's negligent conduct, leaving the car unlocked, with the ignition key available, and the plaintiff's injury in a collision caused by a negligently driving thief. (See Bryant v. Glastetter, supra, 32 Cal.App.4th at pp. 781, 782, fn. 2 [noting relationship between foreseeability and closeness-of-connection factors]; Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at p. 1844 [relating foreseeability and closeness-of-connection considerations in discussion of Richards].) Generally speaking, where the injury suffered is connected only distantly and indirectly to the defendant's negligent act, the risk of that type of injury from the category of negligent conduct at issue is likely to be deemed unforeseeable. Conversely, a closely connected type of injury is likely to be deemed foreseeable. *780 Bryant v. Glastetter, supra, 32 Cal.App.4th 770, which Ralphs cites on the foreseeability factor, is best understood as resting on a lack of close connection between the defendant's conduct and the injury suffered. In Bryant, a tow truck driver working to remove a vehicle from the shoulder of a freeway was fatally struck by a passing vehicle. His surviving wife and children sued the original driver of the vehicle he was removing, who had earlier been pulled over and arrested for drunken driving at that location. (Id. at pp. 774-775.) The appellate court held the defendant (the drunken driver) owed no duty to the decedent to prevent the injury he suffered. The defendant owed decedent, like anyone else potentially injured by her driving while intoxicated, a duty to refrain from doing so (id. at p. 779), but the connection between her negligence and the type of injury that resulted—an errant vehicle striking the tow truck driver called to remove her car from the freeway—was too indirect and attenuated, for "there is no logical cause and effect relationship between that negligence and the harm suffered by decedent except for the fact that it placed decedent in a position to be acted upon by the negligent third party." (Id. at p. 782.)[8] Resting as it does on the indirectness of the connection between the defendant's drunken driving and the injury to the plaintiff, Bryant does not assist Ralphs's argument. Unlike the situations in Bryant—and Richards—no third party negligence intervened between the Ralphs driver's negligent conduct and Adelelmo Cabral's injury. Ralphs did not merely "place[] decedent in a position to be acted upon by [a] negligent third party." (Bryant v. Glastetter, supra, 32 Cal.App.4th at p. 782). Rather, the conduct of the Ralphs driver that the jury found negligent, stopping his tractor-trailer alongside an interstate highway for a nonemergency reason, placed by the roadway a massive, if temporary, obstacle not previously there. It thus directly created the risk of a collision for any vehicle leaving the freeway at that point, the same risk that eventuated and resulted in Cabral's death. *781 Cabral's own negligence was, of course, also found to be a cause of the accident, for which the jury assigned him 90 percent of the comparative fault. Ralphs, however, disavows any argument that Cabral's negligent driving was a superseding cause cutting off the company's own liability, an argument that, in any event, would appear precluded by our reasoning and conclusion in Lugtu v. California Highway Patrol, supra, 26 Cal.4th at pages 725-726. We held there that the negligence of a driver whose vehicle veered into the median and hit a vehicle negligently pulled over there by the highway patrol was not a superseding cause of the stopped driver's and passengers' injuries: "The risk of harm posed by the negligence of an oncoming driver is one of the foremost risks against which [the highway patrol officer's] duty of care was intended to protect." (Ibid.) Any comparison of the two negligent acts, the officer's and the vehicle driver's, was to be done by the jury in apportioning fault, not by the court as a matter of law. (Id. at p. 726.) To the extent Horn acted negligently in stopping alongside the freeway, as the jury found he did, it is because he unreasonably created a risk of precisely the type of event that occurred; the connection between negligent conduct and injury is thus sufficiently close. In urging us to hold it owed Cabral no duty because he was injured only as a result of his own negligence, Ralphs asks us to do under the duty rubric what we would not do in the name of causation in Lugtu, an invitation we should again decline. The general foreseeability of a collision between a vehicle leaving the freeway and one stopped alongside the road, and the relatively direct and close connection between negligent stopping and such a collision, weigh against creating a categorical exception to the duty of ordinary care.[9] B. Considerations of Public Policy (9) We ask next whether the public policy factors identified in Rowland—"the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved" (Rowland, supra, 69 Cal.2d at p. 113)—justify creating a duty exception immunizing drivers from potential liability for negligently stopping their vehicles alongside freeways. We conclude such an exception is not "clearly supported by public policy." (Id. at p. 112.) The overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible. The *782 policy question is whether that consideration is outweighed, for a category of negligent conduct, by laws or mores indicating approval of the conduct or by the undesirable consequences of allowing potential liability. While a driver who negligently stops his or her vehicle alongside a freeway does not act in an especially blameworthy manner, Ralphs concedes its driver could be ticketed where, as here, the area was marked for emergency parking only. More to the point, no state or federal law encourages or authorizes drivers to stop their vehicles alongside an interstate highway in order to eat a meal, take a nap, make a nonemergency telephone call, or conduct other personal business. Stopping alongside the freeway for such discretionary purposes is hardly a heinous act, but neither does it receive any special legal protection. The parties dispute whether parking along a highway without exigent reason violates Vehicle Code section 21718, subdivision (a), which generally prohibits unnecessarily parking or stopping a vehicle "upon a freeway." Ralphs contends the prohibition applies only to the freeway's traffic lanes,[10] while plaintiff argues it applies to the freeway shoulder as well.[11] We need not decide the issue, as the question before us is only whether there is any state policy, such as would clearly justify an exception to the general duty of ordinary care, promoting or protecting the activity of parking alongside freeways for nonemergency purposes. We can discern no such state policy. Nor would recognizing negligence liability place heavy burdens on those in Ralphs's circumstances or on the broader community of freeway users. As noted earlier, Ralphs's driver safety manager testified the company already prohibited its drivers from making nonemergency stops alongside the freeway. In general, drivers will be able to find rest areas, truck stops, or other parking areas near freeway exits where meals can be eaten, telephone calls made, luggage rearranged in the vehicle, and so on. (In the present case, as previously noted, Horn could have stopped at either of two truck stops in the immediate vicinity. (See ante, at p. 778, fn. 6.)) In unusual circumstances where *783 no such exits are available for long stretches, a stop alongside the freeway is less likely to be found negligent. Ralphs argues that "creating a common-law duty to avoid stopping near a freeway for nonemergencies would adversely impact roadway safety" because tired or hungry drivers, uncertain whether or not their situations qualify as an emergency, might continue driving even when it is unsafe to do so. This argument materially misstates the issue. The question is not whether a new duty should be created, but whether an exception to Civil Code section 1714's duty of exercising ordinary care in one's activities, including operation of a motor vehicle, should be created. And the duty at issue is not one of avoiding all nonemergency freeway stops, but the duty to use reasonable care in choosing whether, when and where to stop alongside a freeway. This duty applies in both emergencies and nonemergencies, though the degree of urgency created by the circumstances is, of course, likely to be crucial in determining whether the driver exercised reasonable care. Moreover, as just discussed, tired or hungry drivers generally have the option of exiting the freeway and stopping to eat or rest where their vehicles will not pose a potential danger to other drivers. Because the duty at issue is only that of ordinary care, our rejection of the exemption Ralphs seeks does not mean all parking alongside freeways can result in negligence liability; whether the duty of ordinary care has been breached depends on the particular circumstances, including those aggravating or mitigating the risk created and those justifying the decision to stop on the shoulder or median rather than exit the freeway. Ralphs offers no support for its assertion that juries cannot be trusted to weigh these considerations under the particular facts of each case, as they do in deciding negligence generally. Finally, Ralphs maintains recognizing a duty to exercise care in parking alongside a freeway "would have far-reaching consequences," allowing for potential liability for a driver who parks alongside "a suburban or rural road" or a landowner who places a fixed object such as a light post or mailbox next to a road if these vehicles or objects were later hit by a drunken or drowsy motorist on the road. Ralphs's parade of horribles is unpersuasive for two reasons. First, the consequences Ralphs posits do not follow from declining to create an exemption from potential liability here. As plaintiff observes, "freeways are radically different in their purpose and design from other public roads," making extrapolation of liability rules from freeways to other urban, suburban, or rural roads an uncertain exercise at best. Second, the consequences posited are not necessarily absurd or unthinkable. California juries and courts have, in certain circumstances, imposed liability for collisions where the defendant has negligently parked a vehicle, or negligently placed an obstacle such as a street light pole, along a road *784 other than a freeway. (See, e.g., Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260 [97 Cal.Rptr.3d 241] [light pole installed too close to curb]; Flynn v. Bledsoe Co. (1928) 92 Cal.App. 145 [267 P. 887] [truck parked at wrong angle on an urban street].) Whether or not all such cases were correctly decided, recognition of potential liability for placement of obstacles alongside roadways is clearly not the "radical expansion" Ralphs claims it is. The Court of Appeal majority below similarly claimed that potential liability, if recognized here, would have no end. The dissenting justice's response was a cogent one: "[T]he majority asks, `If a duty is imposed under the facts of this case, where does it end?' [Citation.] In turn, I ask: If a duty is not imposed under the facts of this case, then where does it begin?" Indeed, one might ask under what circumstances Ralphs would have us recognize a duty of ordinary care in stopping alongside a freeway, if not in these. If stopping 16 feet from the traffic lanes exempts a driver from the duty of care, does the same hold for parking six feet from the lane? Six inches? If we are to create immunity for a truck driver stopping for a few minutes to have a snack, should we also do so for one who decides to sleep for hours by the roadside rather than pay for a motel room? Would the categorical exemption Ralphs seeks still apply if a tractor-trailer driver parked an inch from the traffic lanes, on the outside of a curve, leaving the rig there all night without lights? To ask these questions is to see why a categorical exemption is not appropriate. The duty of reasonable care is the same under all these circumstances; what varies with the specific facts of the case is whether the defendant has breached that duty. That question, as discussed earlier, is generally one to be decided by the jury, not the court.[12] II. Causation Ralphs contends the evidence at trial was insufficient to show Horn's negligent stopping of his tractor-trailer alongside the freeway was a but-for cause of the collision, and plaintiff thus failed to show Horn's negligent conduct was a substantial factor in causing Cabral's death. (See Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 [1 Cal.Rptr.2d 913, 819 P.2d 872].) The company also argues that, for reasons of public policy, Horn's stopping by the freeway should, as a matter of law, be deemed not a proximate cause of the collision. (See Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1045 [135 Cal.Rptr.2d 46, 69 P.3d 965].) *785 On the question of cause in fact, Ralphs maintains the trial court should have excluded the opinion of plaintiff's accident reconstruction expert that Adelelmo Cabral was braking and turning back toward the freeway when his pickup truck collided with Horn's tractor-trailer, because it rested on a nontestifying highway patrol officer's report; without that testimony, Ralphs argues, the remaining evidence is insufficient to support the jury's finding. We need not, however, decide whether the trial court erred in admitting the expert opinion. Substantial evidence independent of that opinion supports the jury's implied finding that, had Horn's tractor-trailer not been stopped where it was, Cabral likely would have come to a stop without a fatal collision like that which occurred. The driver behind Cabral testified Cabral's pickup was traveling parallel to the freeway at the time of the collision. Other evidence showed that in the direction of Cabral's travel there was a large expanse of hardpacked dirt without obstacles for Cabral to hit, ending with a gravel shoulder at a freeway on-ramp. The nearest structure was off to the right, not in the direction of Cabral's travel, and more than 400 feet away. Viewing this evidence in the light most favorable to plaintiff (Sweatman v. Department of Veterans Affairs, supra, 25 Cal.4th at p. 68), we conclude a jury could reasonably find no fatal collision was likely had Horn's tractor-trailer rig not been stopped in the shoulder area, making Horn's negligent conduct a substantial factor in causing Cabral's death. Ralphs further contends Horn's negligent conduct cannot be deemed a cause of the collision, either as a factual matter or under a policy-oriented proximate cause analysis, because the same collision would have occurred had Horn stopped for emergency rather than personal reasons. "Because the same injuries would have occurred whether or not Horn was negligent," Ralphs argues, "as a matter of law his negligence cannot be deemed a proximate cause of Cabral's injuries." Again, we disagree. The negligent conduct plaintiff claimed caused her husband's death was Horn's stopping his tractor-trailer rig at the site. The counterfactual question relevant to but-for causation, therefore, is what would have happened if Horn had not stopped his tractor-trailer rig there, not what would have happened if Horn had had a better reason to stop. (10) Causation in fact and justification are generally independent considerations in assessing liability. A justified shooting, for example, can be as fatal as an unjustified one, yet, as plaintiff observes, "If Horn shot and killed Cabral in cold blood, he would not be able to escape liability by arguing that—under different circumstances—he could have been acting in self-defense." Similarly, stopping by the side of a freeway for an emergency might be just as dangerous to other motorists as stopping for a snack, but an emergency stop will not create liability because it is justified. While potential liability differs in the two situations (emergency and nonemergency), causation does not. Under the evidence at trial, a jury could find Horn's stop was a *786 substantial factor in causing the collision whether or not it was made for an emergency—though if made for an emergency, the stop would presumably not have been found negligent. Capolungo v. Bondi (1986) 179 Cal.App.3d 346 [224 Cal.Rptr. 326], upon which Ralphs relies, does not support its argument. The defendant in Capolungo parked for several hours in a zone restricted by city ordinance to short-term parking for freight loading. The plaintiff, hit by a moving vehicle while swerving her bicycle to avoid the defendant's parked car, alleged negligence per se based on the parking ordinance violation. (Id. at pp. 348-349.) The appellate court rejected that claim, upholding summary judgment for the defendant, on the ground that the ordinance was not designed to prevent an accident of the type that occurred or to protect a class of persons that included the plaintiff, both elements of a negligence per se action. (Id. at pp. 350-354; see Evid. Code, § 669.) Parking time limits (in contrast to prohibitions on parking) are designed to maintain access to the space by multiple vehicles—to ensure one vehicle does not monopolize the space—not to keep traffic lanes unobstructed; indeed, such a time limit "clearly contemplates that the zone may be legally in use by vehicle after vehicle so that traffic in that lane might be constantly obstructed." (Capolungo, at p. 352.) In a brief discussion, the court then held that even if the plaintiff could establish the other elements of her action, causation could not be shown because the plaintiff "would have had to swerve around the car in exactly the same manner whether it had been parked there five minutes or five hours." (Id. at p. 354.) Capolungo's reasoning on causation is not entirely clear. The court's assertion that the accident would have happened in the same way if the defendant had obeyed the ordinance's time limit is incorrect if taken literally as a statement of fact; had the defendant removed his vehicle after five minutes, it would not in fact have been there when the plaintiff approached the location on her bicycle. To the extent the Capolungo court meant the plaintiff could not show causation because the parking space was one that, under the parking ordinance, was intended and likely to be more or less continually occupied, its reasoning has no application here. While emergency parking was permitted in the area where Horn stopped his tractor-trailer, no evidence suggested the area was expected to "be legally in use by vehicle after vehicle" as in Capolungo v. Bondi, supra, 179 Cal.App.3d at page 352. To the extent the court's conclusion rested on a policy ground—that statutory limits on negligence per se should not be bypassed through an expansive construction of proximate causation—it also has no application, as the jury here was not instructed and did not rest its verdict on a theory Ralphs was negligent as a matter of law. Capolungo is therefore unpersuasive in the circumstances. *787 CONCLUSION AND DISPOSITION We conclude, contrary to the decision of the Court of Appeal, that Ralphs was not entitled to judgment notwithstanding the verdict on grounds either of lack of legal duty or insufficient proof of causation. The judgment of the Court of Appeal is therefore reversed. Cantil-Sakauye, C.J., Kennard, J., Baxter, J., Chin, J., Moreno, J., and Corrigan, J., concurred. NOTES [1] Horn testified he pulled over to check his brakes because of fluctuations on the pressure gauge. He was impeached on this point, however, by his statements at the time of the accident to the investigating California Highway Patrol officer and, later, to an investigator hired by plaintiff, as well as by his admission he never told Ralphs of the asserted problem and by expert testimony that the fluctuations described were normal. [2] California law accords in this respect with that of American jurisdictions generally as reflected in recently published portions of the Restatement Third of Torts. Section 7 of the Restatement's summary of personal injury liability states: "(a) An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm. [¶] (b) In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification." (Rest.3d Torts, Liability for Physical and Emotional Harm, § 7 (2010).) One exception to the accord is that while California law considers foreseeability of injury a major factor in determining duty, the Restatement, as just quoted, would consider only "an articulated countervailing principle or policy," as distinct from foreseeability. (Ibid.; see id., com. j, p. 82 ["The extent of foreseeable risk depends on the specific facts of the case and cannot be usefully assessed for a category of cases; small changes in the facts may make a dramatic change in how much risk is foreseeable. Thus, . . . courts should leave such determinations to juries unless no reasonable person could differ on the matter."].) [3] Again, California law accords with the Restatement view. "No-duty rules are appropriate only when a court can promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of cases." (Rest.3d Torts, Liability for Physical and Emotional Harm, § 7, com. a, p. 78.) "Sometimes reasonable minds cannot differ about whether an actor exercised reasonable care . . . . In such cases, courts take the question of negligence away from the jury and determine that the party was or was not negligent as a matter of law. . . . [¶] In other situations, reasonable minds could differ about the application of the negligence standard to a particular category of recurring facts, but under the rubric of duty courts render a judgment about that category of cases. . . . In conducting its [duty] analysis, the court may take into account factors that might escape the jury's attention in a particular case, such as the overall social impact of imposing a significant precautionary obligation on a class of actors. These cases are properly decided as duty or no-duty cases. When no such categorical considerations apply and reasonable minds could differ about the competing risks and burdens or the foreseeability of the risks in a specific case, however, courts should not use duty and no-duty determinations to substitute their evaluation for that of the factfinder." (Id., com. i, pp. 81-82, citation omitted.) [4] See, e.g., Lugtu v. California Highway Patrol, supra, 26 Cal.4th at pages 708-709 (pickup truck drifted out of the fast lane of a freeway into the median area, striking another vehicle that a highway patrol officer had pulled over for speeding); Bryant v. Glastetter (1995) 32 Cal.App.4th 770, 774-775 [38 Cal.Rptr.2d 291] (tow truck driver killed while preparing to remove a vehicle from the shoulder of an interstate highway); Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at page 1835 (truck driver stopped alongside the highway due to a mechanical problem was struck by a vehicle veering off the highway); Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 513-514 [6 Cal.Rptr.2d 810] (drunken driver drifted off the highway, hit a guardrail placed to block a fixture on the adjoining property, and veered back across the center line); Whitton v. State of California (1979) 98 Cal.App.3d 235, 239 [159 Cal.Rptr. 405] (drunken driver drove off the freeway at 45 to 50 miles an hour, colliding with a California Highway Patrol vehicle stopped on the shoulder). We cite these decisions here only for their facts, not their holdings. [5] Published guidance from CalTrans is to the same effect. "An area clear of fixed objects adjacent to the roadway is desirable to provide a recovery zone for vehicles that have left the traveled way. Studies have indicated that on high-speed highways, a clear width of 30 feet from the edge of the traveled way permits about 80 percent of the vehicles leaving the roadway out of control to recover. Therefore, 30 feet should be considered the minimum, traversable clear recovery area for freeways and high-speed expressways." (CalTrans, Traffic Manual (2008) ch. 7, Traffic Safety Systems, § 7-02.1, p. 7-2, accessible at [as of Feb. 28, 2011].) We granted plaintiff's request to take judicial notice of this section of the CalTrans Traffic Manual over Ralphs's objection that the Traffic Manual was not introduced as evidence or presented for judicial notice in the trial court. We consider the CalTrans Traffic Manual here not to supplement the factual record of the case, but only as it bears on the legal issue of existence of a duty of care in stopping alongside a freeway. In determining de novo what the law is, appellate courts routinely consider materials that were not introduced at the trial, including publications containing expressions of viewpoints and generalized statements about the state of the world. These are considered not as a substitute for evidence but as an aid to the court's work of interpreting, explaining and forming the law. As the Law Revision Commission has explained, the Evidence Code does not restrict courts in their consideration of materials for the purpose of determining the law. (Cal. Law Revision Com. com., 29B pt. 1 West's Ann. Evid. Code (1995 ed.) foll. § 450, p. 420; see also Rest.3d Torts, Liability for Physical and Emotional Harm, § 7, com. b, p. 79 ["Courts determine legislative facts necessary to decide whether a no-duty rule is appropriate in a particular category of cases."].) We could have considered the CalTrans manual as background to our determination of the law without taking formal notice of it; plaintiff's request, while not improper, was thus unnecessary. [6] In this connection, we note the evidence showed there were two truck stops in the immediate vicinity of the accident site, one about a mile west of where Horn stopped and one two or three miles to the east. In light of that evidence, the jury may well have believed Horn was particularly unjustified in routinely stopping alongside the freeway at this location for his snack. [7] One might well question the Richards court's apparent assumption that car thieves, as a class, are no worse drivers than persons to whom vehicles are intentionally loaned. As Richards is distinguishable on more fundamental points here, however, we again have no occasion to reconsider its validity. (See Ballard v. Uribe, supra, 41 Cal.3d at p. 572, fn. 5, and Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at p. 186, fn. 13 [both noting, but not resolving, questions about Richards's continued viability].) [8] Because the defendant in Bryant clearly owed all users of the road, including the decedent, a duty to refrain from driving while intoxicated, the court's holding (that she did not owe the decedent a duty of reasonable care to prevent his injury at the hands of a third party driver while he removed the defendant's car from the freeway shoulder) was one limiting the scope of the defendant's duty rather than a holding of no duty. Whether determinations of this sort—that the particular injury suffered by the plaintiff was not within the range of risks created by the defendant's negligent conduct—should be made by the court as part of a duty analysis or by the jury in determining causation is debatable. (See Rest.3d Torts, Liability for Physical and Emotional Harm, § 29, com. f, p. 500 [acknowledging different approaches and arguing most limitation-of-liability determinations should be made by the jury because of their dependence on the specific facts of the case]; see also Prosser, Palsgraf Revisited (1953) 52 Mich. L.Rev. 1, 31-32 [urging courts to proceed with caution in taking cases from juries on grounds of too attenuated a connection between negligent conduct and injury suffered, in light of frequent disagreement among courts and commentators over how close the connection must be].) [9] The final Rowland consideration in this group, the degree of certainty plaintiff was injured, is also satisfied here. Adelelmo Cabral was killed in the accident, for which plaintiff undisputedly has a remedy in wrongful death if his death was negligently caused. [10] See People v. Hernandez (1990) 219 Cal.App.3d 1177, 1184 [269 Cal.Rptr. 21] (implying the defendant would not have violated predecessor statute had he coasted his stalled vehicle to the freeway shoulder instead of allowing it to stop in traffic lane); Shuff v. Irwindale Trucking Co. (1976) 62 Cal.App.3d 180, 184 [132 Cal.Rptr. 897] (truck driver violated predecessor statute by parking so as to "block[] a portion of the freeway"). [11] See Tannyhill v. Pacific Motor Trans. Co. (1964) 227 Cal.App.2d 512, 516 [38 Cal.Rptr. 774] (expressly assuming predecessor statute was violated by parking on a freeway shoulder); Lane v. Jaffe, supra, 225 Cal.App.2d at pages 175-177 (impliedly assuming predecessor statute would be violated by parking on a freeway median without statutorily adequate justification); Patterson v. Delta Lines, Inc. (1956) 147 Cal.App.2d 160, 163 [304 P.2d 842] (holding Veh. Code section requiring vehicle parked or standing "`upon a highway'" at night to display a rear light applies to a vehicle parked on the highway shoulder). [12] The final Rowland consideration in this group, the availability of insurance, is clearly satisfied. (Rowland, supra, 69 Cal.2d at p. 113.) Insurance for operation of motor vehicles is generally available and, indeed, required, and there is no reason to believe its cost or prevalence will be significantly affected by declining to create the duty exception Ralphs seeks.

ACCEPTED 12-14-00290-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 4/1/2015 4:11:44 PM CATHY LUSK CLERK 12·14·00290-CR FREDRICK PERKINS § IN THE COURT OF APPEALS § vs. § FILED IN 12th JUDICIAL DISTRICT § 12th COURT OF APPEALS TYLER, TEXAS STATE OF TEXAS § TYLER, TEXAS 4/1/2015 4:11:44 PM CATHY S. LUSK MOTION TO WITHDRAW Clerk TO THE HONORABLE JUDGE OF SAID COURT: Now comes James Huggler, Counsel for the Appellant, in the above styled and numbered causes, and would show the Court as follows: I. Factual and Procedural Background Counsel was appointed to serve as appellate counsel in these matters on October 9, 2014. The Brief of the Appellant is due on April1, 2015. II. Grounds for Withdrawal Counsel has reviewed the Clerk's Record and the Court Reporter's Record in these cases. Following a professional evaluation of the record, it is Counsel's opinion that there is no valid issue to present to this Court, and that the record contains no reversible error or jul'isdictional defects. Counsel has filed an Appellant's Brief in accordance with Anders v. California, 386 U.S. 738 (1967). Finding no valid issue to present to the Court, Counsel seeks to withdraw. Counsel has sent Appellant explaining his rights, and the ability to pursue his own appeal, and a motion to obtain the record if he desires to do so in this matter, and attaches a copy of that letter as Exhibit A to this Motion. Page 1 of 4  III. Prayer for Relief Counsel requests that he be allowed to withdraw, and for other such relief as the Court may deem appropriate. Respectfully submitted, Law Office of James W. Huggler, Jr. 100 E. Ferguson, Suite 805 Tyler, Texas 75702 Tel: (903) 593·2400 Fax: (903) 593·3830 By: /S/ James W. Huggler. Jr. James Huggler State Bar No. 00795437 Attorney for Appellant Page 2 of 4  CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Motion has been delivered to Michael West, Counsel for the State, and the Appellant, Fredrick Perkins, at the addresses listed below on this the let day of April, 2015 by hand delivery or regular mail or the State of Texas electronic filing system. Counsel also certified that he has provided Fredrick Perkins, a motion to obtain the record if he so chooses. IS/ James W. Huggler. Jr. James Huggler Michael West Fredrick Perkins Smith County District Attorney's Office TDCJ #01961955 100 North Broadway, 4th Floor Moore Unit Tyler, Texas 75702 1700 North FM 87 Bonham, Texas 75418 Page 3 of 4  Exhibit A Letter to Fredrick Perkins Page 4 of 4  JAMES Wo HUGGLER9 JRo Board Certified in Criminal Law ATIORNEY AT LAW Board Certified in Criminal Appellate Law Texas Board of Legal Specialization April I, 2015 Fredrick Perkins TDCJ #01961955 Moore Unit 1700 North FM 87 Bonham, Texas 75418 RE: Fredrick Perkins v. State Appeal Number: 12-14-00290-CR Trial Number: 114-0932-14 Dear Mr. Perkins, I am sending you a copy of the Appellant's Brief and a Motion to Withdraw that I have filed with the Twelfth Court of Appeals in this matter. I have thoroughly reviewed the record, and have found no reversible error or jurisdictional defect in these cases. However, you may choose to file a Brief of your own in these matters. I am also sending you a motion to obtain access to the record for your use. If you desire to file your own brief in the case, please sign the motion to allow access to the record, and return it to me immediately and I will make the necessary copies and file the document for you. If you have any questions, please feel free to contact me. Appellant's Brief Motion to Withdraw Appellant's Motion to Obtain Record C:ldata\Corel User Files\Ciients\APPEALS\Perkins, Frederick\Ciient.Briet2.wpd First Place Building • 100 East Ferguson, Suite 805 • Tyler,Texas 75702 903#593#2400 • www.jameshugglerlaw.com • Fax 903#593#3830 

476 F.3d 847 David W. HALL, Petitioner,v.UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, Respondent. No. 05-9512. United States Court of Appeals, Tenth Circuit. February 13, 2007. Mick G. Harrison, Berea, Kentucky, appearing for Petitioner. Ian H. Eliasoph, Attorney (Howard M. Radzely, Solicitor of Labor, Steven J. Mandel, Associate Solicitor, and Paul L. Frieden, Counsel for Appellate Litigation, with him on the brief), United States Department of Labor, Washington, D.C., appearing for Respondent. Before TACHA, Chief Circuit Judge, McKAY and HENRY, Circuit Judges. TACHA, Chief Circuit Judge. 1 Petitioner-Appellant Dr. David W. Hall, a civilian chemist for the United States Army Dugway Proving Ground ("Dugway" or "Army"), filed a complaint with the United States Department of Labor on February 13, 1997, alleging violations of the employee protection provisions of several environmental statutes, which protect employees from being discriminated against for engaging in specified protected activity.1 After investigating the allegations, on April 17, 1997, the Occupational Safety and Health Administration ("OSHA") determined that there was no merit to Dr. Hall's complaint. Dr. Hall requested a hearing before an Administrative Law Judge ("ALJ"), and effective June 12, 1997, he resigned his position at Dugway. 2 On August 8, 2002, following an exhaustive 57-day hearing, the ALJ issued a Recommended Decision and Order ("RD & O") finding that Dr. Hall's resignation was a constructive discharge due to a hostile work environment created by Dugway in retaliation for Dr. Hall's protected activities under the environmental statutes. Dugway petitioned the Administrative Review Board ("ARB" or "Board") for a review of the ALJ's RD & O. The ARB rejected the ALJ's conclusion, finding that Dr. Hall failed to prove Dugway acted with retaliatory motive in any of the alleged hostile acts taken against him. Dr. Hall now asks this court to review the ARB's ruling. We exercise jurisdiction to review the Secretary of Labor's final ruling pursuant to 42 U.S.C. § 6971(b) and AFFIRM. I. BACKGROUND 3 Dr. Hall worked as a civilian chemist in the Chemical Laboratory Division ("Chem Lab") at Dugway, a munitions test and evaluation range, from 1986 through June 1997. His position as a chemist with access to hazardous chemicals required him to have a valid security clearance. Between 1987 and 1997, Dr. Hall reported several perceived environmental and safety hazards to federal and state agencies, some of which resulted in investigations of and enforcement actions against Dugway. 4 On February 13, 1997, Dr. Hall filed a complaint with the United States Department of Labor alleging Dugway violated the employee protection provisions of several environmental statutes. Dr. Hall alleged that after he reported environmental and safety concerns to the Army and outside agencies, Dugway retaliated by creating a hostile work environment. For example, he alleged that the Army retaliated against him by reinvestigating and recommending revocation of his security clearance, requiring him to undergo unnecessary mental health and fitness-for-duty exams, subjecting him to hostile comments and policies in the workplace, unfairly lowering his performance evaluations and threatening disciplinary action against him, and interfering with his work in an effort to stymie completion of his assignments. 5 Upon the initial filing of Dr. Hall's complaint, OSHA investigated and concluded that it had no merit. Dr. Hall then requested a hearing before an ALJ. He retired effective June 12, 1997, prior to the hearing; consequently, the ALJ construed Dr. Hall's original complaint of retaliation to include a claim that he was constructively discharged. In a lengthy RD & O, the ALJ concluded that Dr. Hall had engaged in protected activity, and that Dugway had indeed retaliated against Dr. Hall because of his protected activities, in violation of the environmental statutes. The ALJ's recommended order awarded substantial damages and attorney's fees to Dr. Hall. 6 Dugway challenged the ALJ's recommended order, and the case was submitted for review to the ARB. See 29 C.F.R. § 24.8 (explaining that the ARB "has been delegated the authority to act for the Secretary [of Labor] and issue final decisions" as to such discrimination claims). In its Final Decision and Order, issued in December 2004, the ARB rejected the ALJ's recommendations and dismissed Dr. Hall's complaint, finding (1) under Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), it had no authority to review the merits of Dugway's reinvestigation and revocation of Dr. Hall's security clearance; and (2) with respect to the remaining hostile actions alleged, Dr. Hall failed in his burden to prove retaliatory motive. 7 On appeal, Dr. Hall argues that: (1) the ARB abused its discretion by misconstruing Egan and failing to review the Army's security clearance decisions; (2) the ARB's decision is not supported by substantial evidence because the ARB improperly evaluated direct and circumstantial evidence of retaliatory motive; and (3) the ARB abused its discretion by misconstruing Dr. Hall's complaint and the law of constructive discharge. II. DISCUSSION 8 We review the ARB's decision under the standard established by the Administrative Procedure Act, 5 U.S.C. §§ 701-06. See Anderson v. U.S. Dep't of Labor, 422 F.3d 1155, 1173 (10th Cir.2005). Thus, the Court will reverse the Final Order only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). We review the factual findings of the Board, not those of the ALJ, and the Board's findings are conclusive if they are supported by "substantial evidence." See id. § 706(2)(E); Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir.2004). Our review under this "substantial evidence" standard is "quite narrow." Zoltanski, 372 F.3d at 1200. We review questions of law de novo. See Anderson, 422 F.3d at 1173. 9 The various environmental statutes Dr. Hall alleges Dugway to have violated contain employee protection provisions that prohibit an employer from discharging or discriminating against an employee for reporting environmental violations. See, e.g., 42 U.S.C. § 6971(a) (SWDA's employee protection provision); see also 29 C.F.R. § 24.2(a) (providing for implementation of the employee protection provisions of the SWDA and other environmental statutes).2 "To state a claim under the whistleblower provision of an environmental statute, the plaintiff must establish that his employer retaliated against him because he engaged in a protected activity." Sasse v. U.S. Dep't of Labor, 409 F.3d 773, 779 (6th Cir. 2005). Specifically, Dr. Hall must show: (1) he was an employee; (2) he engaged in protected activity; (3) Dugway knew of the protected conduct; (4) the alleged discrimination occurred—that is, the alleged hostile acts occurred; and (5) a nexus exists making it likely that the protected activity led to the alleged discrimination. See Anderson, 422 F.3d at 1178. The plaintiff bears the burden of proving discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). 10 Dr. Hall alleges that Dugway created a hostile work environment in retaliation for his environmental reporting activities that ultimately led to his constructive discharge. The ARB found, and the parties do not contest, that Dr. Hall engaged in protected activity and that Dugway was aware of his activities. On appeal, the only challenge concerns the ARB's conclusion that there was no nexus between Dr. Hall's protected activity and Dugway's allegedly hostile acts. An employer creates a hostile work environment when "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998) (quotations omitted) (hostile work environment claim brought under Title VII). A constructive discharge claim based on a hostile work environment goes a step farther. An employee is constructively discharged when the employer by his illegal discriminatory acts makes "working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign." Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534 (10th Cir.1998) (quotation omitted) (discrimination and retaliation action brought under Age Discrimination in Employment Act and Title VII). Thus, a constructive discharge "can be regarded as an aggravated case of ... hostile work environment." Pa. State Police v. Suders, 542 U.S. 129, 146, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). In either case, the plaintiff must show that he was targeted for harassment because of his protected activity. See Sasse, 409 F.3d at 779.3 That is, there must be evidence that justifies "an inference of retaliatory motive" for Dugway's allegedly hostile actions. Burrus v. United Tel. Co. of Kan., 683 F.2d 339, 343 (10th Cir.1982). 11 A. Authority to Review Security Clearance Decisions 12 Dr. Hall contends that Dugway retaliated against him by reinvestigating, suspending, and recommending revocation of his security clearance. The ARB declined to review these actions because it concluded that it lacked authority to do so. We agree with the Board that it lacked authority to review the Army's determinations regarding Dr. Hall's security clearance. 13 As the Supreme Court explained in Egan, security clearance decisions are made pursuant to constitutional authority vested in the Executive Branch. Egan, 484 U.S. at 527, 108 S.Ct. 818. Allowing an individual access to national secrets involves a "sensitive and inherently discretionary judgment call ... committed by law to the appropriate agency of the Executive Branch." Id. This discretion stems from the President's role as the Commander-in-Chief; executive authority to "classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy" to access secured information "flows primarily from this constitutional investment of power in the President." Id. Because a determination to grant or revoke a clearance is based on a prediction of an individual's potential to compromise sensitive information, it is "not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence." Id. at 529, 108 S.Ct. 818; see also Hill v. Dep't of Air Force, 844 F.2d 1407, 1411 (10th Cir.1988) (explaining that the substance of security clearance judgments includes both the "merits and motives" of the executive decision and the "nexus between those decisions and national security interests"). Ultimately, therefore, because of both the executive's constitutional supremacy and expertise in this area and outside authorities' lack of competence to evaluate these decisions, neither agencies nor courts have authority to review the merits of the denial of a security clearance absent a clear statutory directive from Congress. Id. at 529-30, 108 S.Ct. 818 (holding Merit Systems Protection Board has no statutory authority to review the Navy's substantive decision to revoke a civilian employee's security clearance); see also Beattie v. Boeing Co., 43 F.3d 559, 565 (10th Cir.1994) (stating that Egan's application to the Merit Systems Protection Board of the rule that security-clearance decisions are the province of the Executive Branch also applies to federal courts). 14 The Army's investigation, suspension, and recommended revocation of Dr. Hall's security clearance were all taken pursuant to this unique executive authority. Determining whether there was a retaliatory motive behind the challenged actions would have required the Board to examine the legitimacy of the Army's proffered reasons and the merits of the revocation decision. Because Egan held that such scrutiny is an impermissible intrusion by a non-expert body into the authority of the Executive Branch over matters of national security, we agree with the ARB's conclusion that Dr. Hall's claim of retaliatory revocation of his security clearance is unreviewable. 15 Dr. Hall argues, however, that the holding in Egan is confined to the specific statutory scheme at issue in that case—the authority granted to the Merit Systems Protection Board under the Civil Service Reform Act, 5 U.S.C. § 1201 et seq.—and that because he brought his claim under the employee protection provisions of various environmental statutes, Egan is not controlling. We disagree. Notwithstanding the factual incongruity, the principles underlying Egan are equally applicable here. The whistleblower protection laws passed by Congress do not alter the constitutional order, recognized in Egan, that gives the Executive Branch the responsibility to make national security determinations. Because of the discretionary nature of the decision to withhold a security clearance and the constitutional delegation of the obligation to protect national security to the Executive Branch, the Board may inject itself into the sensitive issue of security clearance review only where Congress expressly grants it authority to do so. See Becerra v. Dalton, 94 F.3d 145, 149 (4th Cir.1996) (holding that "unless Congress specifically has provided otherwise," courts may not subject the Navy's decision to revoke a plaintiff's security clearance to judicial scrutiny). The environmental statutes upon which Dr. Hall bases his claim do not provide this authority. 16 Dr. Hall also seeks to distinguish Egan by suggesting that we need not review the merits of the Army's ultimate revocation decision, as the petitioner requested in Egan. Rather, he argues that we need only consider the security clearance decisions to determine whether they constitute evidence of retaliatory motive or that they contributed to Dr. Hall's constructive discharge. Dr. Hall argues for a distinction without a difference. To review the circumstances under which the Army recommended revocation of Dr. Hall's security clearance for evidence of retaliation is to review the basis of the determination itself, regardless of how the issue is characterized. The inquiry "goes to the very heart of the `protection of classified information [that] must be committed to the broad discretion of the agency responsible.'" Becerra, 94 F.3d at 149 (quoting Egan, 484 U.S. at 529, 108 S.Ct. 818) (alteration in original) (declining to review the reasons why the Navy instigated an investigation into the plaintiff's security clearance). This is precisely what Egan prohibits. See Hill, 844 F.2d at 1411 (explaining that Egan prohibits review of "merits and motives" of agency decisions relating to clearance decisions). Indeed, other courts have consistently applied Egan to cases involving antidiscrimination legislation similar to the environmental whistleblower protections at issue here for the same reasons. See Hill v. White, 321 F.3d 1334, 1335-36 (11th Cir.2003) (discrimination action brought under Title VII and Rehabilitation Act); Hesse v. Dep't of State, 217 F.3d 1372, 1377 (Fed.Cir.2000) (whistleblower discrimination brought under Civil Service Reform Act); Weber v. United States, 209 F.3d 756, 759-60 (D.C.Cir.2000) (whistleblower discrimination brought under Civil Service Reform Act); Perez v. F.B.I., 71 F.3d 513, 514 (5th Cir.1995) (retaliation brought under Title VII); Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 196 (9th Cir.1995) (race discrimination brought under Title VII); Becerra, 94 F.3d at 149 (national origin discrimination brought under Title VII); Guillot v. Garrett, 970 F.2d 1320, 1324-26 (4th Cir. 1992) (disability discrimination brought under Rehabilitation Act). In each case, the court held that absent express statutory authority to review security clearance decisions, it would violate the principles of Egan to review the employee's claim that the security clearance process or decision was discriminatory or retaliatory. 17 Finally, Dr. Hall asserts that the ARB erred in failing to recognize that it has the power to review the agency's decision for compliance with procedural requirements. It is true that courts are not precluded from reviewing a claim that an agency violated statutory or regulatory procedures when revoking or denying a security clearance. See Duane v. U.S. Dep't of Defense, 275 F.3d 988, 993 (10th Cir.2002); Hill, 844 F.2d at 1412. To this end, Dr. Hall argues that procedural deficiencies in Dugway's decision-making process give rise to an inference of retaliation. This argument fails for two reasons. First, Dr. Hall makes no clear, substantiated allegation, nor provides any relevant record citations, indicating that the Army failed to follow its own procedural rules in revoking the security clearance. Furthermore, even if he did, what Dr. Hall essentially asks this Court to do is precisely what Egan makes clear is prohibited: to probe the legitimacy of the Army's motives to reach an outcome on the merits of Dugway's decision. 18 B. Substantial Evidence Supports the ARB's Resolution of Dr. Hall's Constructive Discharge Claim 19 Dr. Hall contends that the ARB failed to properly evaluate purported direct and circumstantial evidence of retaliation. As noted, we review the factual findings of the Board, not those of the ALJ, and the Board's findings are conclusive if they are supported by "substantial evidence." See 5 U.S.C. § 706(2)(E); Zoltanski, 372 F.3d at 1200. "Substantial evidence is such relevant evidence a reasonable person would deem adequate to support the ultimate conclusion." Grubb v. F.D.I.C., 34 F.3d 956, 961 (10th Cir.1994). This standard requires more than a scintilla but less than a preponderance of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent the Board's findings from being supported by substantial evidence. Zoltanski, 372 F.3d at 1200. In determining whether the Board's decision is supported by substantial evidence, the court must also consider that evidence which fairly detracts from the Board's decision. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). This includes the ALJ's evaluation of witness credibility. Where "the Board rejects the ALJ's findings concerning credibility of witnesses ... the Board must have substantial justification apparent from the record." Zoltanski, 372 F.3d at 1201 (quoting Nephi Rubber Prods. Corp. v. N.L.R.B., 976 F.2d 1361, 1364 (10th Cir.1992)). More specifically, when the Board disagrees with the ALJ's assessment of witnesses' credibility, the Board "should fully articulate [its] reasons for so doing, and then, with heightened scrutiny, we must decide whether such reasons find support in the record." Aylett v. Sec'y of Hous. and Urban Dev., 54 F.3d 1560, 1561 (10th Cir.1995) (quoting Fierro v. Bowen, 798 F.2d 1351, 1355 (10th Cir.1986)). Also, we will reject the ARB's finding if it rests "solely on testimony discredited by the ALJ." Pogue v. U.S. Dep't of Labor, 940 F.2d 1287, 1289 (9th Cir.1991) (emphasis added). 1. Direct Evidence of Retaliatory Motive 20 Dr. Hall contends that he presented direct evidence of retaliation against him and that the Board's final decision must be reversed because it consequently failed to shift the burden of proof to Dugway.4 Our review of the record reveals that Dr. Hall did not, in fact, present direct evidence of retaliation, and therefore, the ARB did not err in failing to shift the burden of proof. 21 "Direct evidence is evidence, which if believed, proves the existence of a fact in issue without inference or presumption." Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir.1999) (alterations and quotations omitted), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). Direct evidence requires "proof of an existing policy which itself constitutes discrimination," Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1477 (10th Cir.1996) (quotations omitted), or "oral or written statements on the part of a defendant showing a discriminatory motivation," Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). "A statement that can plausibly be interpreted two different ways—one discriminatory and the other benign—does not directly reflect illegal animus, and, thus, does not constitute direct evidence." Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 (1st Cir.2002) (quotation omitted). Statements of personal opinion, even when reflecting personal bias or prejudice, do not constitute direct evidence of discrimination, but at most, are only circumstantial evidence of discrimination because the trier of fact must infer discriminatory intent from such statements. See Shorter, 188 F.3d at 1207. 22 None of the statements Dr. Hall offers as direct evidence of retaliatory motive can be so characterized. First, Dr. Hall claims that in a January 1996 meeting, Dugway Test Center Commander, Lieutenant Colonel William Kiskowski, told Dr. Hall that General George Akin, the Commanding General at the Army Test and Evaluation Command in Aberdeen, Maryland, had called Dr. Hall a "traitor" in 1990 for reporting environmental violations. Dr. Hall claims that this statement is direct evidence of discrimination. In fact, the ARB concluded—contrary to the ALJ—that Dr. Hall failed to prove that Lieutenant Colonel Kiskowski made this statement at all. The ALJ had determined that Lieutenant Colonel Kiskowski made this statement based only on Dr. Hall's testimony and a "similarly blatant statement" that General Akin allegedly published in a Dugway newsletter in which the General said he had a "deep concern with employees who reported concerns ... outside the chain of command." The ALJ also concluded that Lieutenant Colonel Kiskowski, who testified that he never made such a statement, was not credible. The ARB rejected this credibility determination for several reasons: (1) Jerry Steelman, Dr. Hall's supervisor at the time, and a witness who attended the January 1996 meeting, testified that he did not remember Lieutenant Colonel Kiskowski making this comment to Dr. Hall; (2) the record contains a note from Dr. Hall after the January 1996 meeting expressing positive feelings about the meeting; (3) Lieutenant Colonel Kiskowski testified that the meeting was productive; (4) the record contains a note from Lieutenant Colonel Kiskowski to Dr. Hall, written immediately after the meeting, indicating that the meeting was productive; and (5) the absence in the record of the Dugway newsletter in which General Akin allegedly expressed his concern that employees were reporting environmental issues outside the chain of command. It therefore concluded that Dr. Hall failed to prove that he was called a traitor. The ARB adequately stated its reasons for rejecting the ALJ's credibility determinations as to this claim, and its conclusions find substantial support in the record. The ARB went on to find that even if the statement was made, there was no evidence to suggest that Dr. Hall subjectively perceived the comment as "hostile," and there is substantial evidence to support this conclusion. See Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (stating that the "objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so."). 23 Second, in the same January 1996 meeting discussed above, which was convened after Dr. Hall reported safety concerns directly to the Department of Defense, Lieutenant Colonel Kiskowski allegedly issued Dr. Hall a chain-of-command "gag order" requiring Dr. Hall to report his environmental and safety concerns internally through the chain of command as opposed to outside agencies. Specifically, Dr. Hall alleges that Lieutenant Colonel Kiskowski "told me I shouldn't even talk to [Dugway's counsel] without clearing it with him." This is not direct evidence of retaliation. Even assuming that Lieutenant Colonel Kiskowski admonished Dr. Hall to report his concerns through the chain of command, this fact alone does not provide the nexus between Dr. Hall's reporting activity and the alleged discrimination. Multiple inferences must be drawn from this statement to find that Dugway's alleged hostility was motivated by a desire to retaliate. Furthermore, in context, the statement is ambiguous because several people testified that they understood Lieutenant Colonel Kiskowski's order not to prohibit Dr. Hall from reporting his concerns to outside agencies, but to ensure that Dugway first was aware of the issues so it could immediately address any safety or environmental problems.5 24 Third, Colonel Dean Ertwine, the head of Dugway's Material Test Command, which includes both the Chem Lab and the Joint Operations Directorate ("JOD"), offered Dr. Hall a temporary detail outside Chem Lab in the JOD in 1991. According to Dr. Hall's notes, Colonel Ertwine stated at the time that he was concerned that the transfer not appear as if it were in retaliation for Dr. Hall's reports to OSHA. Dr. Hall's notes read, "Col. Ertwine does not want the appearance that I am being moved out in retaliation for having caused an OSHA inspection. He and I agreed that would be very counterproductive insofar as getting employees to take safety and hazardous waste matters seriously." One permissible inference to be drawn from the statement is that Colonel Ertwine wanted to prevent others from feeling inhibited in their ability to report safety concerns because of a belief that Dr. Hall was transferred because he reported such concerns. As noted, statements susceptible to two different interpretations—one discriminatory, the other not—is not direct evidence of illegal animus. 25 Fourth, Dr. Harvey, a fellow chemist at Dugway, testified that in 1997 he was ordered to submit to a fitness-for-duty exam at the same time as another employee (who Dr. Harvey believed to be Dr. Hall) in order to avoid the appearance of disparate treatment with respect to the other employee's exam. Again, retaliatory motive must be inferred from this evidence because Dr. Harvey's testimony requires one to infer that the other employee was Dr. Hall. Moreover, the testimony provides no explicit nexus between Dugway's decision to require Dr. Hall to submit to a fitness-for-duty exam and Dr. Hall's protected activity. See McCowan v. All Star Maint. Inc., 273 F.3d 917, 922 n. 3 (10th Cir.2001) ("When a plaintiff alleges that discriminatory comments constitute direct evidence of discrimination, . . . the plaintiff must demonstrate a nexus exists between the allegedly discriminatory statements and the decision to terminate her." (alteration and quotation omitted)). As such, it does not constitute direct evidence. 26 Fifth, Dr. Gary Resnick, a supervisor, instructed Dr. Hall's immediate supervisor at the time, Dr. Lyman Condie, to "turkey farm" Dr. Hall. Dr. Hall argues this statement is an expression of hostility, but the meaning of this statement is ambiguous. In context, the comment supports an inference that Dr. Resnick intended Dr. Hall to be placed on non-critical assignments due to Dr. Hall's lack of productivity, not due to his reporting of environmental and safety concerns. Though retaliatory comments made by a manager responsible for the employment decision at issue during the decision-making process might constitute direct evidence of discrimination, the same does not hold true for ambiguous statements where the retaliatory motive is not apparent on its face. See Danville v. Reg'l Lab Corp., 292 F.3d 1246, 1249 (10th Cir.2002) (when decision-maker's comment that plaintiff "might not be around very long" could have referred either to plaintiff's age or to her tendency to change jobs frequently, the comment was only circumstantial evidence of discrimination). 27 Finally, Dr. Hall contends that statements appearing in an internal Dugway memorandum regarding Dr. Hall, composed after Dr. Hall wrote to United States Senator Carl Levin expressing concerns about safety at Dugway, are direct evidence of retaliation. Dr. Hall's letter to Senator Levin resulted in a report to the Secretary of the Army by Senator Levin on behalf of the Senate Subcommittee on Oversight of Government Management regarding concerns about safety at Dugway. Colonel Cox, Dugway's Commander, composed an internal memorandum to Dr. Frank Bagley, Dr. Hall's immediate supervisor at the time, explaining the actions he intended to take in response to the Senate's report to the Secretary. These actions included briefing the Under Secretary of the Army and advising employees that they must cooperate to resolve problems in the lab and must advise Dugway in writing of any future safety concerns. The memo expresses anxiety that, in the context of declining defense spending, base closure is a serious concern if Dugway has to explain to Senators why "we are not doing our job right." The memo further states that supervisors should discuss the "gravity of the situation" with Dr. Hall and that he "must understand that we can resolve his concerns here" using "Dugway, then Army assets, prior to raising issues with OSHA, EPA, Congress, etc." 28 There is no indication of retaliatory intent here, and the ARB could infer that Colonel Cox was merely appropriately concerned with resolving issues within the chain of command. Moreover, none of these statements are connected to any hostile action taken against Dr. Hall. As such, Colonel Cox's memo, at best, constitutes circumstantial evidence of retaliatory motive, but it is not direct evidence under the law of this Circuit.6 29 The statements and evidence advanced by Dr. Hall on appeal are not direct evidence of retaliation. Instead, they are evidence from which a retaliatory purpose could arguably be inferred. Because there is no direct evidence to satisfy Dr. Hall's burden to prove retaliatory motive, the ARB did not abuse its discretion in refusing to shift the burden of proof to Dugway. 30 2. Circumstantial Evidence of Retaliatory Motive 31 Dr. Hall argues the ARB's determination that he failed to prove a causal nexus between his protected activity and the alleged hostility against him is not supported by substantial evidence. As support for his contention that he was subjected to this hostility because he engaged in protected conduct, he cites the evidence we previously discussed and rejected as direct evidence of discrimination, as well as evidence (1) that the Army has a policy of retaliating against whistleblowers; (2) that Dugway did not follow procedure in dealing with Dr. Hall in different situations; (3) that the timing of certain alleged hostile acts is so close in time to his protected activity to justify finding retaliation; (4) that Dugway subjected his work product to hostile editing; and (5) that the ARB should have payed more credence to the ALJ's positive credibility determination regarding Dr. Hall. We have reviewed Dr. Hall's assertions on appeal, the ARB's decision, and the record on appeal, including the ALJ's RD & O, and find that substantial evidence supports the ARB's conclusions. In so finding, we acknowledge that a reasonable person may infer that the Army's alleged hostility against Dr. Hall was related to his protected activity. Our standard of review, however, is not de novo. We are charged only with determining whether the Board's decision to the contrary is supported by substantial evidence, which we have already described as more than a scintilla, but less than a preponderance of the evidence. See Zoltanski, 372 F.3d at 1200. 32 First, the ARB rejected Dr. Hall's contention that there was a "clear Army policy" that treated employees who reported to outside agencies as disloyal and subject to discipline. As support for his contention that the ARB erred in this determination, he points to: (1) a statement by General Akin in a Dugway newsletter that he had deep concern with employees who reported outside their chain of command; (2) a Defense Investigative Services ("DIS") report that stated that one of Dr. Hall's supervisors said Dr. Hall admitted to blowing the whistle in the past but that Dr. Hall has improved in this respect and is "more willing to work through proper channels"; (3) Dugway's treatment of fellow Dugway employee Judy Moran; and (4) Dr. Hall's testimony that a supervisor made reference to Dr. Hall as one who cannot be trusted not to report to the state environmental agency. 33 Substantial evidence supports the ARB's conclusion that Dr. Hall failed to prove that Dugway had a policy of retaliation against whistleblowers. First, the alleged statement by General Akin does not appear in the record (nor did it appear in the record before the ARB). Second, the statements in the DIS report regarding Dr. Hall's whistle-blowing are evidence as to Dugway's knowledge of Dr. Hall's protected activities, but that fact is not contested. Taken in its full context, the statement indicates legitimate employer concern with employee performance—the statement forms part of a discussion of a supervisor's concerns with Dr. Hall's productivity and difficulty in handling work situations, evidenced by his tendency to go straight to supervisors without attempting to resolve problems on his own. Third, substantial evidence supports the ARB's determination that Dugway's treatment of Ms. Moran does not evidence a retaliation policy. Dr. Hall relies upon the ALJ's conclusion that Ms. Moran "credibly testified" that Dugway would not hesitate to conceal environmental violations to the State. As the ARB points out, the testimony of one witness that Dugway generally may conceal environmental violations does not conclusively prove that Dugway has a policy of retaliation against whistleblowers, much less that Dr. Hall's supervisors took retaliatory action against him for reporting environmental violations. In rejecting the ALJ's credibility determination of Ms. Moran, the ARB recognized conflicting evidence in the record showing that Dugway did not retaliate against Ms. Moran as Dr. Hall alleged and noted the testimony of three other employees who engaged in whistle-blowing activity but experienced no retaliation from Dugway. The ARB clearly and logically stated its reasons for finding against the ALJ's determination that there was a policy of retaliation at Dugway as alleged by Ms. Moran. Finally, that Dugway managers believed Dr. Hall "[could not] be trusted" does not require a conclusion that Dugway had a policy of retaliating against whistleblowers because the record also contained evidence that other employees engaged in whistle-blowing but suffered no disciplinary actions. 34 Second, the ARB also rejected Dr. Hall's contention that instances of irregular procedure proves that he was retaliated against. First, he argues that Commander Como's recommendation to revoke Dr. Hall's security clearance without waiting for a response from Dr. Hall showed inadequate investigation and irregular procedure, both of which prove retaliatory motive in that decision. We have already held that Egan prohibits both the Board's and this Court's inquiry in the motives behind security clearance review. Although Egan does allow review of an agency's compliance with its own procedures, Dr. Hall does not provide us with the procedure that Commander Como should have but failed to follow.7 35 Also as an example of irregular procedure, Dr. Hall argues that Lieutenant Colonel Kiskowski's failure in a February 1997 meeting to comply with procedure requiring advance notice to union officials of meetings with union employees is evidence of retaliatory motive. The ARB concluded that although Lieutenant Colonel Kiskowski did fail to follow procedure in this respect, Dr. Hall failed to prove that this failure was in retaliation for his protected conduct. The ARB martialed substantial evidence to support its finding that the meeting was called as a result of Dr. Hall's deficient work performance, and not evidence of retaliatory motive. 36 Third, Dr. Hall argues that the ARB failed to take account of retaliatory actions that occurred so close in time to his protected activity as to justify an inference of retaliatory motive. A factfinder may infer retaliatory motive from the fact that a hostile action is taken shortly after an employee's protected activity, see, e.g., Weaver v. Chavez, 458 F.3d 1096, 1098 (10th Cir.2006), but it is not required to do so. Dr. Hall was reassigned to the JOD shortly after he engaged in protected activity. The ARB found, however, and the record supports, that Dr. Hall's temporary reassignment to the JOD was motivated by supervisors' desire to give Dr. Hall an environment in which he had better opportunity for advancement and to separate quarreling employees in the Chem Lab. Moreover, the ARB found that the transfer could not even be characterized as a "hostile" act, and we find the record supports this conclusion for the reasons stated in the ARB's Order. 37 Fourth, the ARB rejected the ALJ's view of the evidence supporting Dr. Hall's claim that "hostile editing" contributed to a hostile work environment. Dr. Hall alleged that Christine Wheeler, a Dugway technical editor who edited Dr. Hall's work, made it impossible for him to complete a report on time. The ALJ agreed, in part because he believed Ms. Wheeler was "arrogant." The ARB rejected the ALJ's conclusion, noting that Ms. Wheeler's purported arrogance alone does not prove that she intentionally obstructed Dr. Hall's efforts to finish his report or that if she did obstruct his report it was because of his protected activity. To support its rejection of the ALJ's credibility determination, the ARB referred to evidence in the record that Ms. Wheeler's edits were "routine, prompt, and clear" and noted the testimony of Jim Barnett, a union vice president, that Ms. Wheeler's editing of Dr. Hall's report was like her editing of other people's work, including his own. Although the record does contain testimony from union official Michael LeFevre that he believed it was "possible" that Ms. Wheeler intentionally blocked Dr. Hall's report, the ALJ made no credibility determinations with respect to this witness and, given the other record evidence, the evidence is sufficiently substantial even under the heightened credibility standard to reject the ALJ's conclusion as to the charge of "hostile editing." 38 Finally, Dr. Hall objects to the ARB's rejection of the ALJ's across-the-board credibility determination in favor of Dr. Hall in the face of conflicting and substantial evidence in the record. The ALJ found that Dr. Hall took "good notes" and is an "honest, conscientious and dedicated individual," and therefore generally credited his testimony. The ARB found that the ALJ evaluated only Dr. Hall's credibility, despite the fact that 50 witnesses testified, 40 of whom testified against Dr. Hall. See Be-Lo Stores v. N.L.R.B., 126 F.3d 268, 279 (4th Cir.1997) (rejecting ALJ's "generalized, conclusory statement" about credibility determinations with respect to multiple witnesses). The ARB also explained that the ALJ failed to weigh or to discuss the reasons for discounting conflicting evidence. See Brindisi v. Barnhart, 315 F.3d 783, 787-88 (7th Cir.2003) (rejecting ALJ's conclusions for lack of adequate discussion of conflicting evidence). It is not illogical for the ARB to question the ALJ's credibility determination favoring Dr. Hall in this respect. 39 C. Alternative Theory of Constructive Discharge 40 As a final matter, we note that Dr. Hall argues the ARB erred in failing to recognize and analyze his claims under a specific theory of constructive discharge. To prevail on a constructive discharge claim, a plaintiff must show either that (1) "the employer by its illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign," Sanchez, 164 F.3d at 534 (quotation omitted), or (2) the employer by its discriminatory actions forced the plaintiff to choose between resignation or termination, Burks v. Oklahoma Publ'g Co., 81 F.3d 975, 978 (10th Cir.1996); Acrey v. Am. Sheep Indus. Ass'n, 981 F.2d 1569, 1573-74 (10th Cir.1992). In issuing its recommended decision, the ALJ referred only to the first method of proving constructive discharge. Although he made no clear effort to delineate separate constructive discharge claims before the ALJ or the ARB, Dr. Hall now contends that the ARB erred by failing to directly address whether Dugway constructively discharged him by forcing him to choose between resignation and termination. Because Dr. Hall raises this second theory of constructive discharge for the first time on appeal, the argument is waived. See Jantzen v. Hawkins, 188 F.3d 1247, 1257 (10th Cir.1999) ("We will not consider an appellant's new legal theory on appeal, even if it falls under the same general category as an argument presented at trial." (internal quotation omitted)); see also Taylor v. U.S. Dep't of Labor, 440 F.3d 1, 8-9 (1st Cir.2005) (refusing appellate review based on a new legal theory that appellant failed to raise during the administrative hearings before both the ALJ and ARB).8 III. CONCLUSION 41 For the foregoing reasons, we AFFIRM. Notes: 1 Dr. Hall alleged violations of the whistleblower provisions of various environmental statutes, including the Solid Waste Disposal Act, 42 U.S.C. § 6971(a) ("SWDA"), the Clean Air Act, 42 U.S.C. § 7622(a); the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9610(a); the Federal Water Pollution Control Act, 33 U.S.C. § 1367(a); the Safe Drinking Water Act, 42 U.S.C. § 300j-9(i)(1) 2 The ARB found Dr. Hall alleged violations under the SWDA and consequently did not examine the remaining statutes 3 On appeal, Dr. Hall does not separately press a claim for being subjected to a hostile work environment. He alleges only that because of the hostility at Dugway, he was constructively discharged. Because we affirm the Board's determination that Dr. Hall failed to establish that the alleged hostility was connected to his protected activity, any hostile work environment claim Dr. Hall could have pressed would likewise fail 4 Once a plaintiff established that retaliation played a motivating part in the defendant's actions against him, it becomes the defendant's burden to prove by a preponderance of the evidence that "itwould have made the same decision notwithstanding its retaliatory motive." Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 550 (10th Cir.1999) (quotation omitted); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). 5 Lieutenant Colonel Kiskowski testified that although he acknowledged that Dr. Hall had a "constitutional right" to report concerns to whomever he wanted, "[w]hat I was concerned about is that there were potential safety or environmental problems somewhere down in the lab ... and he had not informed his immediate supervisor of those problems." Lieutenant Colonel Stansbury, the Chemical Test Division Chief and Dr. Hall's second-line supervisor, testified that his understanding of Lieutenant Colonel Kiskowski's instruction was, "Give the chain of command the opportunity to correct any kind of deficiencies or answer any kind of concerns you may have, and if you're not satisfied, then exercise your authority" to report to outside agencies. Mr. Steelman, when asked if he recalled Dr. Hall being instructed not to communicate with federal or state agencies, said, "I don't believe that's correct. I believe his instructions were not to contact them before he contacted his internal Dugway chain of command." 6 Dr. Hall also claims that Army Commander Colonel John Como decided to revoke Dr. Hall's security clearance based on a packet of information that included Dr. Hall's whistleblower complaint. He argues this is direct evidence of retaliation. As explainedsupra, per Egan, neither the Board, nor this Court has authority to review this action or the motives surrounding it. 7 Similarly, Dugway's actions in rating Dr. Hall as fully successful in his performance evaluations in 1992 and 1995 but telling a psychiatrist that examined Dr. Hall on October 1, 1996 that he was experiencing unsatisfactory performance is not reviewable evidence of retaliatory motive. The psychiatric evaluation was part of the DIS's reinvestigation of Dr. Hall's security clearance and, perEgan, the Board cannot examine the legitimacy of Dugway's concerns in evaluating his clearance. For the same reason, we reject Dr. Hall's contention that Dugway raised old allegations of sexual harassment in an attempt to influence the outcome of Dr. Hall's security clearance review. 8 During Dr. Hall's opening statement before the ALJ, his counsel asserted that Dr. Hall "basically became convinced that the Army's intent at this point ... was to either terminate his employment ... or to remove his security clearance," so Dr. Hall terminated his employment to "mitigate the damage he was absolutely certain was about to occur, which was his termination and the removal of his security clearance." During the hearing, Dr. Hall's attorney also referred to the alleged constructive discharge as "forced retirement." Dr. Hall maintains that these statements squarely raise the second theory of constructive discharge. We disagree. These ambiguous allegations unsupported by legal argument or citation to evidentiary support in the record are insufficient to raise the specific legal theory Dr. Hall now alleges the ARB overlooked. The ARB cannot be charged with reviewing the entire record to glean andsua sponte raise legal theories referenced only obliquely by a party but not clearly articulated in its briefs or ruled on by the ALJ. In any case, Dr. Hall's newly articulated distinction makes no difference. As part of its analysis of the "first" claim—that Dugway constructively discharged Dr. Hall by subjecting him to a hostile work environment—the ARB evaluated each act that Dr. Hall now alleges "communicated a threat of imminent termination" and determined that there was no retaliatory motive behind the actions. Because Dr. Hall must show retaliatory motive to succeed on either theory of constructive discharge, the ARB's analysis and factual findings on the "first" constructive discharge claim precludes success on the "second."

873 F.2d 1448 Home Ins. Co.v.General Tire & Rubber NO. 88-1775 United States Court of Appeals,Eighth Circuit. MAR 02, 1989 1 Appeal From: E.D.Ark. 2 AFFIRMED*. * Rule 14 Dismissals

820 F.2d 407 Blairv.D & R Jewelry Mfg., Inc. 86-5961 United States Court of Appeals,Ninth Circuit. 6/16/87 1 C.D.Cal. AFFIRMED

76 F.Supp. 239 (1948) UNITED STATES v. 40.75 ACRES OF LAND, MORE OR LESS, SITUATE IN DU PAGE COUNTY, ILL, et al. Civ. A. No. 47 C 1077. District Court, N. D. Illinois, E. D. February 24, 1948. *240 *241 Otto Kerner, Jr., U. S. Atty., for Northern District of Illinois, and Clarence W. Beatty, Jr., Sp. Asst. to U. S. Atty., both of Chicago, Ill., for petitioner. Edward B. Hayes and Stephen A. Milwid, both of Chicago, Ill., for defendants. CAMPBELL, District Judge. The primary concern of the court in setting all pending motions herein for oral argument was jurisdictional. Certain defendants had attacked the validity of the service of process upon them. As indicated in the court's memorandum of October 29, 1947, it was the invalidity of the first process served on the defendants that required the vacating of the original judgment on the declarations of taking. This jurisdictional question was removed in this instance when the motions were called for argument on February 4, 1948 by the Government's dismissal as to the Township Supervisors of Downers Grove and by the other defendants' admission that subsequent valid summons had been served upon them. The remaining motions pending for disposition are (1) the defendants' motion and traverse to the petition for condemnation, (2) the Government's motion to strike certain sections of the motion and traverse, and (3) the defendants' motion to resume the taking of depositions which have been interrupted pending the disposition of the other motions. I shall now take all the objections raised in the motion and traverse on the basis of the argument heard on February 4, 1948, and the briefs, pleadings and other papers heretofore filed from the inception of this cause. As indicated in the second part of the memorandum of October 29, 1947, consideration of the question of the validity of the taking is required by Catlin v. United States, 1945, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911, if the property owners challenge it. The legal question now presented by the pending motions is the extent to which protesting property owners can attack the validity of the taking. As above indicated, I have heard sufficient argument to pass at this time upon the legal issues presented in the motion and traverse and the motion to strike. These issues all relate to the central question presented by the Catlin case, viz., the extent *242 to which and the grounds upon which the Government's exercise of the eminent domain power can be attacked. Taking in order the objections raised in the defendants' motion and traverse, I shall rule upon each; and wherever the Government has moved to strike a particular objection I shall rule upon the motion in connection with the portion of the traverse to which it is directed. Objection No. 1 Defendants' Motion & Traverse The first objection is that the petition for condemnation is insufficient in law and fails to allege facts showing a cause of action. This objection is overruled. Objection No. 2 The second objection is that the basis for the condemnation set forth in the petition is not in fact true. This objection is an aspect of the attack on the good faith of the Atomic Energy Commission in undertaking this condemnation, and will therefore be considered with the tenth objection. Objection No. 3 The third objection is that the condemnation here sought is not within the terms and authorization of the federal statutes governing these matters. The Atomic Energy Act of 1946, by Section 13(b), 42 U.S.C.A. § 1813(b), gives the Atomic Energy Commission the power to acquire property by condemnation, under the general condemnation statute (40 U.S.C.A. § 257) and "any other applicable Federal statute". The latter phrase includes the Declaration of Taking Act, 40 U.S.C.A. §§ 258a-258f. The Government has proceeded here under both of these statutes, by the filing of a petition for condemnation setting forth the general purpose of the taking and the property to be taken, and of declarations of taking by the Atomic Energy Commission setting forth the elements required by 40 U.S.C.A. § 258a, and by the payment into the Registry of the court of the sums estimated to cover the just compensation to the property owners. This general objection to the lack of statutory authority for this proceeding is therefore overruled. Objections No. 4 and 5 The fourth objection is a specific one, alleging the lack of an appropriation Act necessary to sustain this proceeding. The fifth objection is substantially the same. The Government has moved to strike the latter objection, on the ground that it is based on the theory of a taxpayers suit to enjoin the expenditure of public funds. I shall consider both objections together, and the motion to strike as though it were made to both. A suit by a person in his capacity as a taxpayer to restrain the expenditure of federal funds cannot be maintained, since no taxpayer has sufficient interest in the aggregate amount of federal revenue to be damaged by the expenditure of a portion thereof. Massachusetts v. Mellon, 1923, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. The defendants, however, attempt to bring themselves under the rule of United States v. Butler, 1936, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, in which taxpayers were held to have sufficient interest to question the imposition of taxes on them and the expenditure thereof in pursuance of an unconstitutional plan to regulate a segment of the nation's economy. I think that these defendants are not attempting to restrain the expenditure of federal funds within the meaning of Massachusetts v. Mellon; but it is also obvious that they are not in the position of taxpayers attempting to restrain the imposition of taxes on them in pursuance of an unconstitutional scheme, within the meaning of United States v. Butler. The federal statutes in both of these cases were attacked by taxpayers as beyond the powers granted the federal government by the Constitution. In the case at bar the defendants do not challenge the existence of the federal power of eminent domain, or the propriety of its use to acquire a site for the Argonne Laboratory, or the constitutionality of the Atomic Energy Act. The Government's motion to strike on the basis of the rule of Massachusetts v. Mellon, is therefore denied. The defendants' real point in the fourth and fifth objections is that the money paid into the Registry of the court *243 was without the authority of an appropriation act. A similar situation was presented in Barnidge v. United States, 8 Cir., 1939, 101 F.2d 295, in which a property owner complained of the manner in which the funds available for paying him had been transferred for that purpose by executive order. The condemnation was not under the Declaration of Taking Act and the availability of funds was therefore not a condition precedent to the maintenance of the action because the Government would not acquire title until the compensation had been determined and paid. The court therefore said it was unnecessary to inquire into the manner in which the funds had been made available, but said further, 101 F.2d at page 298: "As a matter of practical fact, so far as this appellant is concerned, the funds are available, and it would not seem to be in his power to challenge the validity of the executive or legislative act by which he can not possibly be injured." The court cited Massachusetts v. Mellon, which is also authority for the more general proposition than the one heretofore discussed that a litigant will not be heard to complain of action which does not harm him. In the oral argument, however, counsel for the defendants asserted that they would be harmed by anything less than payment in full for their property, that the amount paid into court may not cover in full the award that a jury might make for the value of their land, that they would then have only a judgment against the Government, and that just compensation under the Fifth Amendment does not mean a judgment which Congress may never honor. This argument in effect questions the constitutionality of the Declaration of Taking Act, which provides that the Government takes title to property immediately upon the filing of the declaration and the payment into court of the estimated value of the property taken. Long before the passage of the Declaration of Taking Act, the Supreme Court held that the Fourteenth Amendment is not violated by the provision of a state condemnation law authorizing the taking of possession prior to the final determination of the amount of compensation and the payment thereof, if adequate provision is made for compensation. Backus v. Fort Street Union Depot Co., 1898, 169 U.S. 557, 18 S.Ct. 445, 42 L.Ed. 853. The provision in the Declaration of Taking Act for the payment into court of the estimated value of the property sought to be condemned, and the provision that if just compensation as finally determined exceeds the amount deposited in court, judgment shall be entered against the United States for the deficiency at six percent interest from the date of the taking, have been held to be adequate provision for compensation. City of Oakland v. United States, 9 Cir., 1942, 124 F.2d 959, certiorari denied, 1942, 316 U.S. 679, 62 S.Ct. 1106, 86 L.Ed. 1753. Furthermore, unlike the type of condemnation in the Barnidge case, further protection is afforded property owners by the provision that the Government cannot abandon a condemnation under the Declaration of Taking Act, but must carry it through to completion, including the payment in full of the compensation ultimately awarded. Catlin v. United States, 1945, 324 U.S. 229, 241, 242, 65 S.Ct 631, 89 L.Ed. 911; 40 U.S.C.A. §§ 258c and 258e. I must therefore hold that the defendants' contentions going to the constitutionality of a Declaration of Taking Act condemnation have already been raised and decided adversely to them in the foregoing cases, which I regard as controlling here. The defendants' argument on the meaning of the constitutional requirement of just compensation is more basic than their point concerning the lack of an appropriation to support this condemnation. I have digressed to discuss the constitutional issue because defendants' counsel raised it in the oral argument in support of his contention that the defendants were not within the rule of Massachusetts v. Mellon, since their interests were directly threatened by this proceeding. I now return to the defendants' fourth and fifth objections concerning the lack of an appropriation for this condemnation. As a practical matter, inquiry into the lack of an appropriation has little relevance when based on the defendants' contention that their concern is the possibility of not receiving the full amount of an ultimate *244 award. For, regardless of the source of the money paid into court — whether by an administrative transfer or allocation of funds, or by a specific appropriation for the Argonne National Laboratory — if the amount now in court is insufficient to pay what a jury may ultimately award, the defendants will face the same problem, about which they profess to be concerned, of inducing the Government to honor the unsatisfied judgment. Since the constitutional issue, on which rests the defendants' argument that they may be injured by this proceeding, has been resolved against them, and since under a practical view of the matter as set forth in the preceding paragraph, it is immaterial to the defendants' fear of having judgment unsatisfied whether the source of the money paid into court was the general funds of the Commission or a specific appropriation for the Argonne Laboratory, the issue raised by the fourth and fifth objections in the motion and traverse could be resolved against the defendants on the basis of the view in the Barnidge case heretofore quoted. Apart from the constitutional issue and the defendants' fear of not receiving payment in full of an ultimate award, however, there remains the possibility that a specific appropriation is by statute a necessary element in the Government's right to condemn. Counsel for the Government argues that a specific appropriation is not needed to sustain a condemnation under the Declaration of Taking Act, if the Government agency has money available for immediate payment to property owners and has paid it into court; that in any event Public Laws 515 and 663 of the 79th Congress, Second Session, Act July 16, 1946 and Joint Resolution Aug. 8, 1946, 60 Stat. 541, 910, are a sufficient appropriation; and finally that under Section 13(b) of the Atomic Energy Act the Commission could take immediate possession of the property without the deposit of money in the Registry of the court as provided by the Declaration of Taking Act. It is unnecessary to pass on the last ground advanced by the Government, since it has in fact proceeded under the Declaration of Taking Act by depositing in court the estimated compensation for the defendants. The defendants' position is that 40 U.S. C.A. § 259 prohibits the payment of money or the making of contracts for the payment of money for any public building site in excess of the amount specifically appropriated therefor; that 40 U.S.C.A. § 263 provides that no act authorizing the purchase of a site and the erection of a building thereon shall be construed to appropriate money unless it contains express language appropriating money; and that 31 U.S.C.A. § 627 provides that no act shall be construed to make an appropriation, or to authorize the execution of a contract involving payment of money in excess of appropriations made by law, unless the act specifically declares that an appropriation is made or that a contract may be executed. Public Law 515 is the Military Appropriation Act, 1947, and includes an appropriation of $375,000,000 for "atomic service", including "the acquisition of land or interest in land, construction, installation * * * and maintenance of buildings * * *". The Atomic Energy Act of 1946, transferring authority over the development and control of atomic energy to a civilian agency, was approved two weeks later. Public Law 663, the First Supplemental Appropriation Act, 1947, therefore provided for the Atomic Energy Commission by authorizing the President to transfer unexpended balances available to The Manhattan Engineer District (the military agency concerned with atomic development) to such agencies as he may determine for the purpose of carrying out the provisions of the Atomic Energy Act. It cannot therefore be said that the Commission has no authority to expend money for the acquisition of building sites. I think that the three statutes cited by defendants provide standards of conduct binding on executive officers in the making of contracts and the spending of money. But these statutes are not jurisdictional, and do not affect the power of this court to proceed with a condemnation action. In condemnations not under the Declaration of Taking Act, it has been held that an act of Congress limiting the amount which could be spent on a project did not *245 affect the condemnation proceeding, which merely determines the compensation to which the property owner is entitled. If this amount exceeds the Congressional limit on the project, the executive and legislative branches have the option of abandoning the project or increasing the appropriation to cover the compensation due the property owner. Shoemaker v. United States, 1893, 147 U.S. 282, 302, 13 S.Ct. 361, 37 L.Ed. 170; United States v. Gettysburg Electric Ry. Co., 1896, 160 U.S. 668, 684, 16 S.Ct. 427, 40 L.Ed. 576; See also Danforth v. United States, 1939, 308 U. S. 271, 284, 60 S.Ct. 231, 84 L.Ed. 240; and Barnidge v. United States, supra, 8 Cir., 101 F.2d 295, at page 298, holding that a taking by eminent domain is not by contract or agreement and hence does not violate 16 U.S.C.A. sec. 462(d) which is similar in purpose to the three statutes relied on by defendants here. By the Declaration of Taking Act, Congress, for the purpose of expediting building projects, gave the executive branch of the Government the power to bind the Government irrevocably by filing a declaration of taking and paying the amount of estimated compensation into court. If this procedure is inconsistent with the policy expressed in the statutes relied on by defendants, it merely represents the purpose of Congress to release the executive agencies from the restraints imposed by the aforesaid three statutes and allows them to pledge the faith of the Government to pay whatever amount is determined ultimately to be due the owners of the property taken. However, section 3 of the Declaration of Taking Act, 40 U.S.C.A. § 258c, provides a limitation on the exercise of discretion by the executive agencies. This section provides that action under this act "shall not be taken unless the chief of the executive department or agency or bureau of the Government empowered to acquire the land shall be of the opinion that the ultimate award probably will be within any limits prescribed by Congress on the price to be paid". Defendants' counsel made the point in the oral argument that it does not appear in the pleadings filed by the Government that the Atomic Energy Commission or its chairman was of the opinion that the amount of the ultimate award would probably be within any limits prescribed by Congress on the price to be paid. Where Congress has prescribed any limits, this section is analogous to 40 U.S. C.A. § 259, one of the statutes cited by defendants, which limits executive agencies in paying or contracting for building sites to the amount specifically appropriated. But the term "any limits prescribed by Congress" has the meaning of "such limits as may be prescribed by Congress". It does not imply that Congress will or must prescribe limits on every specific building project undertaken by the Government. If Congress does provide specifically for each project, as appears to be its custom in post-office building appropriations, such limits bind the executive agency under both 40 U.S.C.A. § 259 and section 3 of the Declaration of Taking Act. But Congress can choose to authorize a land condemnation and building program in general terms and under a lump sum appropriation. In that situation section 3 of the Declaration of Taking Act is inapplicable. In any event, section 1 of the Act, 40 U.S.C.A. § 258a, does not require the expression of such opinion as a necessary element to be included in the declaration of taking. The mere filing of the action may be sufficient expression of such opinion, as the mere request to the Attorney General to file a condemnation action has been held to be a sufficient indication of an administrative finding of the necessity for the taking. See Old Dominion Land Co. v. United States, infra. I conclude that the Commission is proceeding with the construction of the Argonne National Laboratory under a general grant of power from Congress and is authorized to spend money for that purpose under a lump sum appropriation; that no specific appropriation for this particular project is necessary; that Congress need not provide limits on the amount to be spent on land for a specific project under the Declaration of Taking Act; that if Congress does provide such limits, the requirement of an administrative opinion that the amount of an ultimate award will *246 probably be within such limits is met by the request of the agency to the Attorney General to file these proceedings. The fourth and fifth objections are therefore overruled. Objection No. 6 Under the sixth objection of the traverse, the defendants assert that the Commission has already acquired land in the neighborhood in excess of its needs and has been unable to pay for all of such land, that the sums deposited in court are insufficient to permit these defendants to replace the properties here sought to be taken, that compensation is not "just" within the meaning of the Fifth Amendment if it is not paid promptly, and that there is no reasonable, certain and adequate provision for the defendants to obtain compensation before their occupancy is disturbed. Insofar as this objection is concerned with the amount of land needed by the Commission, it goes to the good faith of the Commission in exercising the power of eminent domain and therefore will be considered with the tenth objection. The allegations concerning the Commission's inability to pay other landowners in the neighborhood for their land are not relevant to this proceeding, since the money to pay these defendants is in the possession of this court. If this sum should prove to be insufficient to cover the amount of the ultimate award to defendants, this court must assume that the executive and legislative branches of the Government will promptly and faithfully pay the balance of such award. The judiciary is not the sole repository of the conscience of the Federal Government. The possibility that the amount paid into court may not cover in full the ultimate determination of the value of the property taken has been held not to render the Declaration of Taking Act unconstitutional. City of Oakland v. United States, supra. For it is also possible, on the other hand, that on a declaration of taking the amount deposited in court and paid the property owners may exceed the amount of the ultimate award, and the Government will then be entitled to a judgment of restitution for the excess. See United States v. Miller, 1943, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55. The good faith issue of this objection will, as above stated, be considered with the tenth objection. As to the other issues, the Government's motion to strike Objection No. Six of the traverse is granted. Objections No. 7 and 8 The seventh and eighth objections also allege that the Commission does not need the land of these defendants. They therefore constitute an allegation of lack of good faith and will be considered with the tenth objection. The Government's motion to strike is therefore denied. Objection No. 9 The ninth objection is that the Commission has made no finding that the property of these defendants is necessary to the establishment of the Argonne National Laboratory as alleged in paragraph III of the petition for condemnation. The defendants argue that an administrative agency exercising the eminent domain power is subject to the ordinary rule that it must make findings of fact bringing its action within the statute from which it derives its authority, citing Panama Refining Co. v. Ryan, 1934, 293 U.S. 388, 432, 55 S.Ct. 241, 79 L.Ed. 446, and Florida v. United States, 1931, 282 U.S. 194, 206, 51 S.Ct. 119, 75 L.Ed. 291. These cases involved administrative regulations of interstate commerce under delegated legislative power. The fact that Congress in delegating legislative power to regulate commerce must prescribe the standards by which the administrative agency is to be guided, and that the administrative agency must make findings of fact essential to its exercise of the delegated power, is not material here. The exercise of the eminent domain power is not analogous to the exercise of the power to regulate commerce. In Bragg v. Weaver, 1919, 251 U. S. 57, 58, 40 S.Ct. 62, 63, 64 L.Ed. 135, the Supreme Court declared: "Where the intended use is public, the necessity and expediency of the taking * * * are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment." *247 If a hearing is not essential, it follows that the making of detailed findings of fact is likewise not essential. The mere filing of a petition for condemnation is a sufficient indication of an administrative finding of necessity. In Old Dominion Land Company v. United States, 1925, 269 U.S. 55, 66, 67, 46 S.Ct. 39, 40, 70 L.Ed. 162, Mr. Justice Holmes speaking for the Court declared: "Some question is made as to whether a letter from the Secretary of War to the Attorney General sufficiently authorized the present proceedings by showing that in his opinion it was necessary or advantageous to the Government to take them. The Act of August 1, 1888, c. 728, 25 Stat. 35, [40 U.S.C.A. § 257], allows the Secretary to acquire by condemnation lands which he is authorized to procure for public purposes, `whenever in his opinion it is necessary or advantageous to the Government to do so'; gives jurisdiction to the courts of the United States, and makes it the duty of the Attorney General upon every application of such officer to cause proceedings to be commenced. We perceive no requirement that the Secretary should go further than to apply to the Attorney General." The ninth objection is therefore overruled. Objection No. 10 The tenth objection, and all or portions of the second, sixth, seventh, and eighth objections in defendants' traverse, allege that this condemnation was not undertaken in good faith. Defendants rely on United States v. Carmack, 1946, 329 U.S. 230, 67 S.Ct. 252 and United States v. Meyer, 7 Cir., 1940, 113 F.2d 387, certiorari denied 1940, 311 U.S. 706, 61 S.Ct. 174, 85 L.Ed. 459, for the proposition that a court may inquire into the good faith of the agency exercising the power of condemnation. The Carmack case, however, is not authority for this proposition. It is true that there the District Court took voluminous evidence on this question, and concluded that the condemnation should be denied as capricious and arbitrary. The Supreme Court reversed the judgment on the ground that the District Court was merely substituting its discretion for that of the officials charged with the selection of a site. The Supreme Court said at pages 242, 243 of 329 U.S., at page 258 of 67 S.Ct.: "The judgment exercised by the designated officials in selecting this site out of 22 sites suggested, and out of two closely balanced alternatives, constituted an administrative and legislative decision not subject to judicial review on its merits." On the question of judicial review of good faith, the Court said at page 243, of 329 U.S., at page 258 of 67 S.Ct.: "In this case, it is unnecessary to determine whether or not this selection could have been set aside by the courts as unauthorized by Congress if the designated officials had acted in bad faith or so `capriciously and arbitrarily' that their action was without adequate determining principle or was unreasoned." The Court reached this conclusion on the basis of the record made in the District Court which showed the care with which the site had been finally selected. But the Supreme Court thus specifically left open the question whether the District Court could have refused to order the condemnation if the record showed bad faith. It follows that the additional question is also open whether the District Court should even have allowed the introduction in evidence of the reasons for the selection of the site. The Meyer case, on the other hand, stated that the conditions for the exercise of the eminent domain power were the payment of just compensation and good faith on the part of the agency seeking to take the property. But our Circuit Court of Appeals did not state what it meant by good faith, nor with respect to what aspect of a condemnation proceeding it would require good faith. In the instant case, the defendants challenge the Commission's good faith only with respect to the selection of a site and to the area sought to be condemned; they do not, for example, assert that their land will in fact be used for another purpose than the building of a laboratory for atomic research. The cases cited in the Meyer case by our Circuit Court of Appeals, in the context in which it referred to good faith as *248 a necessary condition for a taking by condemnation, do not, with one exception, mention good faith. Rindge Co. v. County of Los Angeles, 1923, 262 U.S. 700, 43 S.Ct. 689, 67 L.Ed. 1186, held that the taking was for a public use, that the necessity for the taking is a legislative question, and that no hearing on that question is necessary as a matter of due process. To the same effect are Joslin Mfg. Co. v. City of Providence, 1923, 262 U.S. 668, 43 S.Ct. 684, 67 L.Ed. 1167, and Sears v. City of Akron, 1918, 246 U.S. 242, 38 S.Ct. 245, 62 L.Ed. 688. Bragg v. Weaver, 1919, 251 U. S. 57, 40 S.Ct. 62, 64 L.Ed. 135, held that where adequate provision is made for the payment of compensation without unreasonable delay, the fact that the taking precedes the determination of the just compensation due the owners does not violate due process. Shoemaker v. United States, 1893, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170, which stated that the extent to which property shall be taken for a public use is a legislative question, is chiefly significant at this point for the striking similarity in the language used by the Supreme Court and by the Circuit Court of Appeals in the Meyer case, showing the addition by the Court of Appeals of the good faith element in the Meyer case. In the Shoemaker case, the Supreme Court declared (147 U.S. at page 298, 13 S.Ct. at page 390) that the cases establish the proposition, among others, "that the extent to which such property shall be taken for such use rests wholly in the legislative discretion, subject only to the restraint that just compensation must be made". In the Meyer case, the Circuit Court of Appeals declared (113 F.2d at page 392) with reference to the determination of the extent, amount or title of property to be taken: "The decision as to such questions rests wholly in legislative discretion, subject only to the restraints that just compensation must be paid and the determination made in good faith". It is thus apparent that the Circuit Court of Appeals added the requirement of good faith to a clause taken verbatim from the Supreme Court's opinion in the Shoemaker case. In United States v. Gettysburg Electric Ry. Co., 1896, 160 U.S. 668, 16 S.Ct. 427, 40 L.Ed. 576, the issue was whether the taking was for a public use, which is a judicial question; but the use having been determined to be a public use, the Court said that the quantity of land to be taken is a legislative question. Barnidge v. United States, 8 Cir. 1939, 101 F.2d 295 implies that a court may consider whether the act of a government officer in undertaking to condemn property is an abuse of the power granted him by statute. But this is only another way of stating the principle that a court may examine whether the taking is for a public purpose within the meaning of the act under which the condemnation is sought. The issue before that court was whether condemnations under the Historic Sites Act, 16 U.S.C.A. § 461 et seq., were strictly limited to the preservation of historic buildings. United States v. Threlkeld, 10 Cir., 1934, 72 F.2d 464, 465, is the only case cited in the Meyer case which mentions good faith. The court stated the general principle that it could determine whether the proposed use is public or private, and added, "but, in the absence of bad faith, and if the use is a public one," the necessity or expediency of appropriating property is a legislative question not for judicial determination. If the court in the Threlkeld case had not stated good faith and public use as coordinate conditions, the good faith problem could be understood as an aspect of the public use inquiry which is a judicial question. Although not essential to this decision, it should be noted that even the judicial power to inquire into the public use question has been placed in doubt by recent decisions. See United States v. State of New York, 2 Cir., 1947, 160 F.2d 479, certiorari denied 1947, 331 U.S. 832, 67 S. Ct. 1512. If a taking is for a use not authorized by statute, as the contention was made in the Barnidge case, it may be said to be a taking in bad faith. Or if the taking authorized by statute is for a use which a court will declare to be essentially a taking from some private owners for the benefit of other individuals, the court will declare the proposed taking is not for a public use. The use of the eminent domain power *249 in connection with public housing legislation has been attacked on this basis. See Public Housing in Illinois, 8 U. of Chi.L. Rev. 296, at 298, 302, 316. As in the case of a taking not within prescribed statutory purposes, a taking for a use not within the constitutional powers of government may be said to be in bad faith. But see United States ex rel, Tennessee Valley Authority v. Welch, 1946, 327 U.S. 546, 552, 66 S.Ct. 715, 90 L.Ed. 843. These types of bad faith, however, are not malevolent, and do not seem to be what was meant in the Threlkeld case. Reference to the cases cited in the Threlkeld case is not helpful. In addition to the Gettysburg Electric Railway and Rindge cases, discussed previously in connection with the Meyer case, the court in the Threlkeld case relied on Hairston v. Danville and Western Ry. Co., 1908, 208 U.S. 598, 28 S.Ct. 331, 52 L.Ed. 637, 13 Ann.Cas. 1008, in which the issue was whether the taking was for a public or private use, and Cincinnati v. Vester, 1930, 281 U.S. 439, 50 S.Ct. 360, 74 L.Ed. 950, in which the issue was whether the taking was for a public use within the state statute. So far as the precedents are concerned, the status of good faith as a condition of a taking by condemnation is therefore doubtful. The United States Supreme Court specifically left the question open in the Carmack case. Our Circuit Court of Appeals in the Meyer case, apparently quoting the language of the Supreme Court in the Shoemaker case, appended the requirement of good faith to the Supreme Court's statement which said that the requirement of just compensation was the "only" restraint on the extent to which property may be taken for a public purpose. The Threlkeld case also mentioned the requirement of good faith, but without support in the authorities which it cited, except insofar as a taking not for a public purpose can be said to be not in good faith. The Meyer case, however, is the law of this circuit. Furthermore, I assume a priori that the question of bad faith on the part of government officers can be raised in a judicial proceeding. For this reason, the Government's motion to strike the tenth objection, and all or portions of the second, sixth, seventh and eight objections on the good faith issue is denied. None of the foregoing cases, however, is explicit as to the meaning of bad faith. In the law of torts bad faith can mean either the mere lack of legal excuse or an actual malevolent purpose. As a restraint on the power of eminent domain, apart from the public use inquiry which goes to the lack of legal excuse for the taking, I think that bad faith means actual malevolence toward the complaining defendants by government officers under the color of a lawful condemnation. It does not mean merely poor judgment or careless planning in the selection of a site. The defendants' factual allegations which they sought to prove, by the taking of depositions of members of the Atomic Energy Commission are that a better site for the Laboratory is its present site in the Palos Forest Preserve, that the Commission preferred the Palos site, that political considerations led the Commission not to begin condemnation proceedings against the Forest Preserve District of Cook County for that site, and that the site selected in Du Page County was only a secondary choice. These are matters going only to the exercise of discretion by administrative agencies. Political considerations of comity are a proper part of the discretion allowed the executive branch of the Government. Which site is better is an engineering, not a judicial question. Even if it should be proved from the records and testimony of the Commission that the site selected was not its first choice, such proof would not constitute proof of bad faith. This was the situation in United States v. Carmack, supra, 329 U.S. 230, at pages 244, 245, 67 S.Ct. 252, in which the court declared that the record presented no issue of capricious and arbitrary action. There is nothing in the allegations of these defendants indicating actual malevolence, or spite, directed toward them by the Commission and being its real reason for taking their land. They are only asking this court to substitute its opinion on the matter of site selection for that of the Commission. *250 The tenth objection, and all or portions of the second, sixth, seventh and eighth objections considered herewith, are therefore overruled. Objection No. 11 The eleventh objection of the defendants' traverse is that this condemnation is an attempt to take property without due process of law and contrary to the Fifth Amendment. This argument has been considered at length in prior sections of this memorandum, and is overruled. Objection No. 12 The twelfth objection is that the propriety of this taking has not been determined by Congress, and that the petition for condemnation was filed on July 25, 1947 to circumvent an investigation of this site by a subcommittee of the Joint Committee on Atomic Energy of the Congress. As in all condemnations, the Commission is exercising legislative power duly delegated to it by Congress. It was not contemplated by Congress that it should pass on such questions. Furthermore, it should be noted that in the long delay to which this condemnation has been subjected, it does not appear that the subcommittee has taken any action, or has reached any contrary conclusion, regarding the site for the Argonne Laboratory. The Government's motion to strike the twelfth objection is therefore granted. All the issues raised by the defendants' motion and traverse, and by the Government's motion to strike, have thus been disposed of by the Court as a matter of law. The legal defenses relied on by the defendants, and the ultimate facts which they sought by deposition to support such defenses, are not sufficient to constitute a bar to this proceeding. The defendants' motion to resume the taking of depositions is therefore denied. The Government is directed to prepare judgment on the declarations of taking and to submit the same to Counsel for defendants for approval as to form and then to the Court for entry.

817 So.2d 1095 (2002) HEALTHCOMP EVALUATION SERVICES CORPORATION and Thomas Hartnett, individually and in his official capacity, Appellants, v. Cynthia G. O'DONNELL, Appellee. No. 2D01-3335. District Court of Appeal of Florida, Second District. June 14, 2002. *1096 Alan M. Oravec, Sarasota, for Appellants. Nicholas J. Taldone, Clearwater, for Appellee. SALCINES, Judge. Healthcomp Evaluation Services Corporation and Thomas Hartnett appeal a nonfinal order denying their motion to compel arbitration. We hold that the trial court erred when it refused to order the parties to participate in arbitration with regard to three of the eight counts set forth in Cynthia G. O'Donnell's amended complaint. Ms. O'Donnell sold her business to Healthcomp in 1999 under an "Agreement for Sale of Assets" which contained a clause which stated: 18. Arbitration. Except for claims or disputes related to the confidentiality and nonsolicitation as set out in paragraphs 7 and 13 of this Agreement, it is the intention of the parties hereto not to resolve claims, disagreements or disputes concerning this Agreement through litigation in the courts. Rather, the parties acknowledge and consent to binding arbitration, as provided for below, concerning any such claims, disagreements, or disputes. If any controversy, claim, disagreement, or dispute should arise between the parties in the performance, interpretation, or application of this Agreement, and such controversy or dispute shall not be resolved or compromised, then after thirty (30) days' notice either party may serve upon the other party a written notice stating that the controversy, claim, disagreement or dispute is being referred to a sole arbitrator selected by the American Arbitration Association. The arbitration proceeding shall be conducted in Sarasota County, Florida and shall be governed by the Commercial Rules of the American Arbitration Association. The decision and award of the arbitrator shall be final and binding upon the parties, and all parties hereby acknowledge that there shall be no appeal or review whatsoever of such arbitration award and such arbitration award may be entered as a final judgment in any court of competent jurisdiction. (emphasis added). Ms. O'Donnell also entered into a two-year contract with Healthcomp to be employed by them as director of medical services for the company. Thereafter, Ms. O'Donnell filed a lawsuit in the Pinellas County Circuit Court asserting claims in contract and in tort against Healthcomp and its representative, Mr. Hartnett. In response, a motion to compel arbitration and to dismiss for improper venue was filed. After a hearing on the motion, the Pinellas trial court transferred the case to Sarasota County without ruling on the portion of the motion seeking to compel arbitration. *1097 The Sarasota County Circuit Court conducted a hearing to consider whether arbitration should be compelled. At the hearing, counsel for Ms. O'Donnell stipulated that the amended complaint did encompass arbitrable claims. In fact, it was agreed that counts two (fraudulent misrepresentation), three (fraud by nondisclosure), and seven (securities fraud) of the complaint would be subject to arbitration if a valid agreement had been made. In reviewing the arbitration clause, the only argument made by counsel for Ms. O'Donnell was that the arbitration clause was invalid because the last sentence of the clause endeavored to preclude the parties from pursuing an appeal of any arbitration decision. Counsel also urged the court to deny the motion to compel arbitration because the amended complaint was predominated by nonarbitrable claims. The trial court indicated that the attempt to prevent the parties from appealing any arbitration decision was not enforceable and the court found the provision to be "offensive." In fact, this sentence within the arbitration clause is in contravention to the Florida Arbitration Code which provides a limited right of appeal. See § 682.20, Fla. Stat. (1999). The trial court was correct when it held that the last sentence of the arbitration clause was unenforceable. See Damora v. Stresscon Int'l, Inc., 324 So.2d 80 (Fla.1975). Counsel for Healthcomp and Mr. Hartnett directed the trial court's attention to the severability clause contained within the agreement for sale of assets which stated: [23](d) Severability. All agreements and covenants contained herein are severable, and in the event any of them shall be held to be invalid by any competent court, this Agreement shall be interpreted as if such invalid agreements or covenants were not contained herein, and the remaining provisions of this Agreement shall not be affected by such determination and shall remain in full force and effect. This Agreement shall not fail because any part or any clause hereof shall be held indefinite or invalid. It was argued that the offending sentence in the arbitration clause could be severed from the remainder of the clause and the agreement to arbitrate should be enforced. The trial court did not find Healthcomp and Hartnett's argument concerning severability to be persuasive. Additionally, the trial court acknowledged that judicial economy technically was not an issue to be considered when determining a motion to compel. However, it found that judicial economy clearly would not be served by compelling arbitration in the present case and denied the motion to compel arbitration. Judicial economy was a primary deciding factor for the trial court. In reviewing a motion to compel arbitration, a trial court must consider three elements: (1) whether a valid, written agreement to arbitrate exists, (2) whether an arbitrable issue exists, and (3) whether the right to arbitrate has been waived. Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999). The trial court improperly considered judicial economy when making its decision. Agreements to arbitrate are a favored means of dispute resolution. Fla. Select Ins. Co. v. Keelean, 727 So.2d 1131, 1132 (Fla. 2d DCA 1999). When there is an enforceable arbitration agreement, the courts should require the terms to be followed. Micronair, Inc. v. City of Winter Haven, 800 So.2d 622, 625 (Fla. 2d DCA 2001). The severability clause was a valid part of the agreement to purchase assets. There was no interdependence between the arbitration clause and the remaining clauses of the agreement which would have required the trial court to rewrite or "blue pencil" the agreement. See, e.g., Pitchford v. Oakwood Mobile Homes, Inc., 124 *1098 F.Supp.2d 958, 965 (W.D.Va.2000). The arbitration clause itself was divisible and the offending sentence contained therein could have been severed without affecting the intent of the parties. See Brevard County Bd. of County Comm'rs v. Williams, 715 So.2d 1100, 1101-02 (Fla. 1st DCA 1998). The trial court erred when it failed to sever the unenforceable sentence from the arbitration clause and when it denied the motion to compel arbitration as to those counts which were stipulated to be arbitrable. Accordingly, we reverse the order denying the motion as to counts two, three, and seven, and affirm as to the remaining counts. Affirmed in part, reversed in part, and remanded for further proceedings. NORTHCUTT and KELLY, JJ., Concur.

67 B.R. 99 (1986) In re Carl H. NEUMAN, d/b/a Lydia E. Hall Hospital, Syossett Hospital and Long Island Food Company, Debtor. Nos. 86 Civ. 7915 (RWS), 86 Civ. 7920 (RWS), 86 Civ. 7921 (RWS) and 86 Civ. 8230 (RWS). United States District Court, S.D. New York. November 6, 1986. As Amended November 17, 1986. *100 Garrity, Connolly, Lewis, Lowry, Grimes & Silverman, New York City, for James L. Garrity, Chapter 11 Trustee; Paul H. Silverman, of counsel. Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., New York City, for U.S. Dept. of Health & Human Services; Nancy Kilson, Asst. U.S. Atty., of counsel. Solomon, Green & Ostrow, New York City, for Edward Leffler. Lola Lee, New York City, Special Counsel to Carl Neuman. OPINION SWEET, District Judge. Related appeals from orders of the bankruptcy court dated August 22, October 2, and October 20, 1986 have been filed and debtor Carl H. Neuman ("Neuman") has moved by order to show cause for a stay of the effectiveness of the October 20 order pending appeal to this court of that order. Chapter 11 Trustee James L. Garrity ("Garrity") has moved the court to dismiss the August 22, 1986 appeals as moot and to adopt the October 20 order. For the reasons stated below, the October 20 order is hereby vacated, the August 22 order is vacated in part, and the remaining matters on the appeals from the August 22 order are remanded to the bankruptcy court for further determination in accordance with this opinion. Commencing in the late 1960's and during the 1970's, Neuman created several health care institutions, among them The Sarah R. Neuman Nursing Home ("SRN"). Although Neuman held the operating certificate, Edward Leffler ("Leffler") was the executive director of SRN in charge of the day-to-day operations. On September 23, 1984, Neuman and Leffler executed a contract of sale for SRN which provided for an immediate transfer of title and stated that if approval for the issuance of a new operating certificate to Leffler were not obtained by September 30, 1986 the agreement would terminate. On December 11, 1984, Neuman filed a petition under Chapter 11 of the Bankruptcy Code. After various proceedings before the bankruptcy court, the court appointed Garrity, a bankruptcy lawyer, as Chapter 11 Trustee on March 18, 1986. Leffler continued in charge of the day-to-day operations of SRN. On August 20 Garrity obtained an ex parte order from the bankruptcy court granting him control of the operations of SRN, based upon a letter from the New York State Department of Health, obtained ex parte, stating that his status as trustee would permit him to act as receiver pursuant to New York Public Health Law § 2810. After a hearing on August 22, the bankruptcy court partially vacated that order and, in recognition of Leffler's rights as contract vendee, directed that Garrity and Leffler share joint control of SRN and reserved operational responsibilities to Leffler. Garrity appealed from the August 22 order, see 86 Civ. 7915, and Leffler and Neuman cross-appealed, see 86 Civ. 7920; 86 Civ. 7921. Neuman subsequently commenced an action in the Supreme Court, County of Albany, for a determination of his rights under the operating certificate. On a contempt motion before the bankruptcy court, the court enjoined the state court proceedings on the grounds that they required a finding as to what is property of the estate of the debtor. See Order of October 2, 1986. That order has also been appealed but that appeal has not been perfected. Based on the expiration of Leffler's contract on September 30, 1986, and Leffler's resulting loss of possessory and managerial *101 rights with respect to SRN, the bankruptcy court on October 20 ordered that Leffler relinquish control of the operations of SRN and that Garrity "take sole possession and control of SRN and its operations. . . ." On October 27, Neuman petitioned this court by order to show cause to stay enforcement of the October 20 order pending appeal to this court from that order. At a conference at which counsel for Garrity, Leffler, Neuman and the United States were present, the request for a temporary restraining order was denied, and a hearing was scheduled for October 29. It was agreed by all parties that motions on the appeals from the August 22 order, previously returnable on November 7, would be heard at the same time. The following findings and conclusions are based on that hearing and memoranda and affidavits submitted in connection therewith. With respect to the requested stay of the October 20 order, this court concludes that the bankruptcy court was without jurisdiction to issue the October 20 order and on its own motion dismisses the appeal from that order. It is well-settled that the filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). Similarly, the taking of an appeal from a bankruptcy court to a district court normally deprives the bankruptcy court of jurisdiction over matters involved in the appeal. See Re Bialac, 694 F.2d 625, 627 (9th Cir. 1982); Re Crozier Bros., Inc., 60 B.R. 683 (S.D.N.Y.1986); Re Emergency Beacon Corp., 58 B.R. 399 (S.D.N.Y.1986). While courts have recognized an exception to this rule where action by the lower court is necessary to preserve the status quo as of the time of the appeal, see Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 625 (2d Cir.1962); McClatchey Newspapers v. Central Valley Typographical Union, 686 F.2d 731, 734-35 (9th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982), the October 20 order does not fall within that exception. That order did not preserve the status quo, that is, the grant of joint control to Garrity and Leffler, but granted Garrity sole control of the operations of SRN. Although Leffler's contract rights expired on September 30, the proper forum for relief from the August 22 order was the district court. The October 20 order is therefore vacated as having been entered without jurisdiction.[1] Garrity has moved to dismiss the appeals from the August 22 order as moot based on the October 20 order and the change of Leffler's status. On the basis of undisputed facts presented on the instant motions, that part of the order granting Leffler joint control and operational responsibilities in recognition of the uncertainty as to Leffler's possessory and managerial rights by virtue of his contact with Neuman is vacated. It is undisputed that Leffler's contractual right to purchase SRN expired on September 30. Since the bankruptcy court had, by order of September 26, denied an extension of that contract right, which order has not been appealed, Leffler no longer has any right by virtue of the contract to remain in possession or control of SRN or its operations. Because of the change in circumstances with respect to Leffler, that part of the order granting Leffler such rights is vacated on Garrity's motion as moot. The appeals from the August 22 order are hereby remanded to the bankruptcy court to determine whether the trustee is authorized under New York Public Health Law § 2810 to operate SRN and whether Neuman has any continuing rights under the certificate of operation. IT IS SO ORDERED. NOTES [1] In light of this conclusion, Garrity's motion to adopt the October 20 order is denied.

229 Md. 475 (1962) 184 A.2d 811 CITY OF HAGERSTOWN v. HUTSON ET UX. [No. 12, September Term, 1962.] Court of Appeals of Maryland. Decided October 17, 1962. The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ. Elwood E. Hauver, with whom was Edward Oswald, Jr., on the brief, for appellant. Samuel C. Strite, with whom was William P. Kreykenbohm on the brief, for appellees. HAMMOND, J., delivered the opinion of the Court. The City of Hagerstown appeals from an order of the Circuit Court for Washington County which reversed the action of the Board of Zoning Appeals of the City in denying the appellees, the Hutsons, the right to use a residentially zoned lot for a filling station. The Hutsons acquired the lot in 1947. Zoning was put in force in Hagerstown on September 6, 1951, by the passage of an ordinance now codified as Ch. 24 of the Code of the City of Hagerstown (1956 Edition). When acquired and when zoning was adopted, the lot had a frontage of one hundred four feet on Nottingham Road and a depth of one hundred eighty-six feet along Washington Avenue, narrowing as it went back, with a rear line of seventy-two and a half feet. Recently Washington Avenue was made the eastbound lane of the dual highway known as U.S. Route 40. In the process the State took the ten feet of the lot nearest *477 Washington Avenue, and raised the grade. In addition, three easement rights over separate areas of the lot were acquired. The first was for a slope adjacent to Washington Avenue sixteen feet wide at the back and tapering to nothing at Nottingham Road. The second covered a small area at the intersection, and the third embraces a ten-foot strip, bordering the rear line of the lot, with a length of forty-eight feet. The last easement was for the purpose of receiving water from a twenty-four inch drain which crosses Washington Avenue and ends at the bottom of the slope on the Hutson lot. The building lines on the front and side of the lot are, under the zoning ordinance, twenty-five feet from the pavements on Nottingham Street and Washington Avenue, respectively. The lot slopes away from both thoroughfares. In the rear, on the south, it is twelve feet below street level. When the building lines on both streets are taken into account, there remains an area available for a building site with a frontage of fifty-nine feet on Nottingham Road and a depth of one hundred fifty-one feet along Washington Avenue, to a rear line of thirty-seven and a half feet. The area involved was zoned originally for a community shopping center; but, because it has never been so availed of, the only uses permitted are, under Sec. 24.11 (2), "uses permitted in residential districts." A number of houses of a market value of from $7,500 to $10,000 have been built nearby, either just before or since zoning was established. The neighborhood is entirely residential except for a reservoir owned by the City, across the dual highway. The Hutsons, claiming that the diminution in size and the lowering of the grade of the lot caused by the new highway made it not reasonably adaptable to any permitted residential use, applied for a permit to use the lot for a filling station on the ground that the applicable zoning constituted an unconstitutional taking. After a hearing at which a number of witnesses testified in a rather vague and general way, due somewhat to the almost continuous colloquies between Board members or between a Board member and a witness, current or past, the Board denied the application. No findings of fact *478 were made and no opinion was filed by the Board. From the nature of the questions asked and the colloquies indulged in, it may be inferred that it was thought that the lot could be sold or utilized by the Hutsons for the erection of a dwelling, although the record does not foreclose the inference that the Board felt it had not been shown that the lot could not be used for some one of the sixteen uses other than a dwelling house permitted in a residential zone. The Hutsons went to the Circuit Court under the right of appeal given by Sec. 24.31 (1) of the Hagerstown Code. Judge Cobey said it was his opinion that the evidence before the Board clearly established that the only economic use for the property is a commercial use and that its continuance in a residential zoning classification would constitute a taking in the constitutional sense under Frankel v. City of Baltimore, 223 Md. 97, and City of Baltimore v. Cohn, 204 Md. 523, but it seems apparent, both from the evidence before the Board and the opinion as a whole, that the premise of the decision was the necessity of a choice between use for a dwelling or use for a filling station. We think it is a close question whether or not a dwelling can economically be put on the lot. All of the witnesses said it could be done, with those testifying for the owners adding that it could not be done reasonably. The Chairman of the Board said that some of the neighboring houses on Nottingham Road were split levels. Mr. Hutson, a builder, replied that it was doubtful whether one could get "any reasonable figure out of it" if a house of this type were built on the lot, that generally in building on unusual topography one takes a loss, and that F.H.A. requirements could not be met. A land engineer testified that the lot was not "reasonably adaptable" for use as a residence site. When the Chairman suggested that the maps in evidence showed that one could put a house thirty feet by thirty feet (or "a little bigger") on the lot, with due observance of the building lines, with a difference in elevation between front and rear of only two feet, the witness agreed. The Chairman then said: "If the topography is the same there now as when this map was drawn, *479 would it, in your opinion, be feasible to construct a house facing on Nottingham Road?" The answer was "Yes, you could put a dwelling upon the front of the lot." A real estate man also testified that the lot was not "reasonably adaptable" for use as a residence site. To the Chairman's suggestion that if a house were built facing Nottingham Road, as the neighboring houses had been, there would be "very little difference in your elevation," the witness answered in part: "If you have a house down in a hole, it is much harder to sell than a house that sits up on a bank." The City Building Inspector said the lot would not be "a choice building section" and when asked if the lot were reasonably adaptable for residential use, answered: "For my own personal use, no. I might add there isn't a member on this Board that would like to live there." A Board member asked if the lot could be used "for anyone of the seventeen uses under Section 24.8" and the Inspector said, "You are going to have to pick out somebody that has money to build there." The testimony, unsatisfactory as it is in its vagueness, could be interpreted as bringing the case within the holdings of Reiskin v. Montgomery County Council, 229 Md. 142, and Cities Service Oil Co. v. Board of County Comm'rs, 226 Md. 204, rather than being controlled by Frankel and Cohn. In Reiskin there was evidence that made it fairly debatable whether the land there involved, which was in the midst of residences, as is the land here involved, could be used for the single family dwelling classification for which it was zoned, and it was pointed out that the general residential environment and the reasonable probability of use for which zoned, less profitable though it might be, distinguished the case from Frankel and Cohn, and made the action of the County Council in denying reclassification neither arbitrary, capricious, discriminatory nor unconstitutional in effect. The record before us makes it plain that the most profitable use of the Hutson lot is for a filling station, but mere loss of profit is not confiscation or an unconstitutional taking, as Reiskin and the Cities Service cases, citing earlier decisions to this effect, reiterated. *480 The case before us should not, as we see it, necessarily turn on whether the Circuit Court was right in deciding, as it did, that the lot could not, with economic feasibility, serve as a base for a dwelling. The property owner has the burden of showing that the controlling zoning regulation deprives him, in the words of Frankel, "of all beneficial use of his property" and thus in effect takes his property without just compensation. The Hutsons failed entirely to show that their lot could not reasonably and beneficially be used for one or more of the sixteen uses, other than a dwelling, permitted by Sec. 24.8 of the Hagerstown Code. These include an apartment house (the use sought and denied in Reiskin), a church, a club, a convalescent or nursing home, a library, art gallery, museum or community center, a professional office, an aged home, a school or kindergarten or nursery school, a telephone exchange, and a tourist home. It may be that competent testimony would show that the lot cannot be reasonably and beneficially (as distinguished from most profitably) be used for any of these permitted purposes. We think that the substantial merits of the case will best be determined by a remand without affirmance or reversal under Maryland Rule 871 (a) for the giving of testimony which will either sustain the claim of the Hutsons of an unconstitutional taking or show that their lot has a reasonable and beneficial permitted use or uses. Section 24.31 (4) of the Code of the City of Hagerstown (1956 Edition) provides that if upon appeal "it shall appear to the Court that testimony is necessary for a proper disposition of the matter, it may take evidence or appoint a commissioner to take such evidence as it may direct and report the same to the Court with his findings of fact and conclusions of law which shall constitute a part of the proceedings upon which the determination of the Court shall be made." The paragraph further provides that the Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. Maryland Rule B 10 says that upon appeal to the Circuit Court "Additional evidence may be allowed when permitted by law." Rule B 12 provides that in addition to affirming, *481 reversing or modifying the action appealed from, the Circuit Court may remand the case to the agency for further proceedings. Upon remand the Circuit Court for Washington County may take additional evidence as to the feasibility of devotion of the lot to any of the uses permitted by Sec. 24.8 of the Hagerstown Code, either directly or through a commissioner, or remand the case to the Board to determine the question specifically. Case remanded, without affirmance or reversal, costs to abide the result.

702 F.Supp. 1158 (1988) B.G., by his Guardian Ad Litem, F.G., Plaintiff, v. CRANFORD BOARD OF EDUCATION, Defendant. CRANFORD BOARD OF EDUCATION, Plaintiff, v. B.G., by his Guardian Ad Litem, F.G., Defendant. Civ. A. Nos. 87-1360, 87-4745. United States District Court, D. New Jersey. December 29, 1988. *1159 Weinberg & Kaplow, P.A. by Richard J. Kaplow, Springfield, N.J., for plaintiff. Theodore A. Sussan, Spotswood, N.J., for defendant. SUPPLEMENTAL OPINION WOLIN, District Judge. This opinion supplements a prior opinion issued by the Court and filed on November 18, 1988. That opinion affirmed the decision of the Administrative Law Judge ("ALJ") providing for B.G.'s residential placement and directed that the Cranford Board of Education ("Board") pay for all of its associated costs. Left unresolved and reserved was the issue of reimbursement to B.G.'s father ("F.G.") for a voluntary and unilateral placement of B.G. at the Youth Behavior Program ("YBP") in Colorado. For the reasons contained in this opinion, reimbursement to F.G. for B.G.'s placement at YBP is denied. I. PROCEDURAL AND FACTUAL HISTORY The Court's initial opinion, 702 F.Supp. 1140 (D.N.J.1988), is incorporated herein by reference, thereby eliminating the need for an exhaustive reiteration of the prior case history. Only facts that relate to disposition *1160 of the pending issues are set forth in further detail. A. The ALJ's Opinion The ALJ concluded that F.G. was not entitled to reimbursement for placing B.G. in the YBP program since B.G. was not receiving special education in a self-contained classroom for emotionally disturbed students. Accordingly, YBP was not an appropriate placement and the reimbursement provided by Town of Burlington v. Department of Education, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), was inapplicable to the established facts of this case. Although the Court affirms this determination, other considerations of statutory, administrative and decisional law require a more expansive discussion of the reimbursement denial. B. Factual Considerations After the Child Study Team ("CST") initially classified B.G. as perceptually impaired ("P.I."), F.G. was aghast and after listening to their presentation, left the conference in "absolute, total, sheer disgust." He characterized the conference as an "absolute, positive charade" and attributed the CST recommendation to "nothing more than a school board fearful that they were going to have to pay for a kid to go to a special treatment center and they didn't want to fund it." F.G. and his wife ("the F.G.'s") refused to sign the Individualized Education Program ("IEP"). On June 6, 1986, F.G. advised the CST by letter that he refused to consent to the IEP and considered any further contact or effort to request a different placement a "waste of time." At or about this time, F.G. had learned of YBP and determined that it was the proper placement for B.G. He was encouraged in making this decision by Dr. Leonard Volenski, a certified school psychologist and a licensed clinical psychologist, who had been treating B.G. on a weekly basis since December 1985. Though Volenski felt that the least restrictive setting for B.G. would be a residential placement, he was able to recommend YBP since it was the only program of which he was aware that addressed attachment disorders of Korean children. (B.G. is an adopted Korean child.) At the time of this recommendation, Volenski was under the impression that B.G. would attend public schools as a classified student and be placed in a self-contained classroom for emotionally disturbed ("E.D.") students. The Youth Behavior Program focus is on emotionally disturbed children with special emphasis on the unbonded attachment syndrome. Its primary goal is to gradually reintegrate an enrollee into the home environment within 12 to 18 months. Through a therapeutic approach of residing with surrogate parents, a program of individualized therapy, and an E.D. classification supplemented by a contained classroom, both the home and school problems are addressed. Unfortunately, as later learned, B.G. was not classified as E.D. (or in any other classification) nor was he placed in a contained classroom for E.D. students. He was "mainstreamed" without special education benefits and matriculated to the next highest grade at the completion of the academic year. At no time was YBP on the approved list of out-of-district educational placements maintained by the New Jersey Department of Education. In fact, the Department of Education does not consider YBP an educational program. At footnote 13 of its original opinion, this Court concurred in the Department's opinion and stated: YBP is not an educational program and does not contain an educational component. YBP confronts negative behavior in emotionally disturbed children by application of appropriate reasonable consequences to negative behavior, thereby making the child totally accountable. Under its program the child lives with a therapeutic foster family and receives individual therapy; a therapist is on call 24 hours per day. 702 F.Supp. at 1146 n. 13. While B.G. was enrolled at YBP, residing with surrogate parents, and attending Jefferson County schools, procedural aspects of the case were unfolding. The Board *1161 requested a due process hearing, which resulted in a reversal of the P.I. classification. The ALJ determined that an E.D. classification was the appropriate classification for B.G. The CST then implemented another in-district program, which they presented to the F.G.'s at a planning conference on February 12, 1987. The conference was very brief, lasting some 10 to 12 minutes, and concluded without any discussion. The F.G.'s were presented with a copy of the proposed IEP. Parenthetically, the CST was unwilling to recommend YBP as an out-of-district placement because it thought that YBP was inappropriate for B.G.'s educational needs. There was no further contact between the F.G.'s and the CST related to B.G.'s proposed IEP. Instead, on February 25, 1987 the F.G.'s requested a due process hearing, as the Board had previously requested when the first IEP was rejected. On September 30, 1987 the ALJ decided that a residential placement was the least restrictive environment for B.G. She also denied F.G.'s claim for reimbursement; that denial, inter alia, invited this litigation. II. STATUTORY PROVISIONS AND ADMINISTRATIVE REGULATIONS The essence of F.G.'s claim for reimbursement pertains to the breadth and scope of the term "related services" as it appears in the Education of All Handicapped Children Act ("EAHCA"), 20 U.S.C. ง 1401 et seq., and New Jersey Administrative Code ("N.J.A.C.") 6:28-1.1 et seq. F.G. does not assert that he is entitled to reimbursement on the ground that YBP was a residential placement; he concedes that it is not. Rather, he bottoms his reimbursement theory solely on the "related services" aspect of the law. He argues that psychological services fall within the purview of "related services" necessary to a free appropriate public education regardless of their geographical location โ€” whether it be Cranford, New Jersey, or Evergreen, Colorado. A. EAHCA Through the legislative vehicle of the EAHCA, Congress in no uncertain terms provided to handicapped children meaningful access to a "free appropriate public education." 20 U.S.C. ง 1412(1) & (2). Included in the definition of a free appropriate public education is the right to special education and "related services." Id. ง 1401(16)-(18). Special education and related services are specifically defined in ง 1401(16) and (17) of the Act, respectively. Psychological services are expressly provided for in the definition of "related services." A fair reading of each of these sections demonstrates the criticality of employing modalities that meet the unique needs of the handicapped child and that will assist such child in benefiting from special education. Explicit in the phrase "free appropriate public education" is its availability at no cost to parents. Probably the most essential element of the EAHCA's comprehensive educational plan is the development of an IEP as more particularly defined in 20 U.S.C. ง 1401(19). In its salient features that statute provides for a written statement for each handicapped child to be developed among the CST, the teacher, the parents and, whenever appropriate, the handicapped child. It also includes various data that permit an objective measurement of the relative success or failure of the plan.[1] Since the statutory scheme anticipates parental participation, *1162 a full panoply of procedural safeguards has been incorporated into the Act. Particularly relevant to this Court's inquiry are งง 1415(b)(1)(C) & (E), 1415(e)(2) & (3). Subsections (C) and (E) of ง 1415(b)(1) deal with notice to parents whenever a change is initiated. The subsections provide parents with an opportunity to participate in any matter that impacts on their child's right to a free appropriate public education. Subsections (2) and (3) of ง 1415(e) are operative sections to be applied when adversary proceedings ensue between the parents and the school authorities.[2] The last sentence of ง 1415(e)(2) cloaks the Court with the power to "grant such relief as the Court determines is appropriate." B. N.J.A.C. The New Jersey State Board of Education has adopted a broad range of rules pertaining to educationally handicapped pupils. Many of these rules either equal or exceed the provisions of the EAHCA. Through the N.J.A.C. general requirements, all educationally handicapped pupils are ensured a free appropriate public education that includes special education and/or related services. N.J.A.C. 6:28-1.1(b)(1). Subsection (d)(4) limits "related services" to those "located in State approved facilities that are accessible to the handicapped." Under the definitional section of the rules โ€” unlike the comparable EAHCA provision โ€” the term "related services" omits reference to "psychological services." N.J.A.C. 6:28-1.3.[3] Subchapter 2 of the rules, entitled "Procedural Safeguards," provides for parental notice, consent and participation, including appellate rights, should the board and the parents disagree. Id. 6:28-2.3(b)(2) & (3). Unlike the EAHCA, N.J.A.C. 6:28-2.6 provides for resolution of conflicts between parents and a school prior to a request for a due process hearing. The N.J.A.C.'s prescription for an Individualized Education Program, especially with its intent for parental participation in the program's development, id. 6:28-3.6(c), is equally as specific as the EAHCA. Subsection (e)(1) of N.J.A.C. 6:28-3.6 requires "[a] statement of the pupil's eligibility for special education and/or related services." N.J.A.C. 6:28-3.7, which sets forth a collection of "related services," provides for "in school" counseling, id. (a)(1)(i), and "[o]ther related services, as necessary, [to] be specified in the pupil's individualized education program." Id. 6:28-3.7(a)(1)(i) & (a)(6). Under subchapter 4, entitled "Programs," N.J.A.C. 6:28-4.1(a) requires that the district board of education provide educational programs and related services for handicapped pupils in accordance with their individualized education programs. III. DISCUSSION Whether F.G. is entitled to be reimbursed for his expenses arising from B.G.'s *1163 placement at the Youth Behavior Program depends upon whether YBP is a related service within the meaning of the EAHCA. Clearly, the concept of "related services" embraces and has been interpreted to include psychological services. T.G. v. Board of Education, 576 F.Supp. 420, 423 (D.N.J.1983), aff'd without opinion under various names, 738 F.2d 420, 738 F.2d 421 & 738 F.2d 425 (3d Cir.), cert. denied, 469 U.S. 1086, 105 S.Ct. 592, 83 L.Ed.2d 701 (1984); Papacoda v. Connecticut, 528 F.Supp. 68, 72 (D.Conn.1981). However, not every supply of psychological service may be considered a related service. The pivotal inquiry is whether the service was tailored to meet the unique needs of the handicapped child and whether it provided the child with some educational benefit. Board of Education v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 3042, 73 L.Ed. 2d 690 (1982). Cognate to that inquiry is the requirement that the related service be incorporated into the child's IEP. Id. at 181-82, 102 S.Ct. at 3038. Unfortunately, not all IEP's are developed by agreement between the school authorities and the parents. When a dispute arises and the parents voluntarily and unilaterally remove the child from his or her educational placement to another placement during the pendency of the proceedings, the expense entailed is reimbursable provided the parental placement is determined to be proper under the EAHCA. 20 U.S.C. ง 1415(e)(2); Burlington, 471 U.S. at 368, 105 S.Ct. at 2002; Muth v. Central Bucks School District, 839 F.2d 113, 127 (3d Cir.) (reimbursement for learning-disabled child with associated emotional problems), cert. denied, ___ U.S. ___, 109 S.Ct. 103, 102 L.Ed.2d 78 (1988); Board of Education v. Diamond, 808 F.2d 987, 993 (3d Cir.1986) (reimbursement to parents for residential placement of a child with severe congenital physical abnormalities). Moreover, unilateral placement of the child elsewhere does not constitute a waiver of the parents' right to reimbursement nor does it violate 20 U.S.C. ง 1415(e)(3) (commonly referred to as the "stay put" provision).[4]Burlington, 471 U.S. at 372, 105 S.Ct. at 3004; Alamo Heights Independent School District v. State Board of Education, 790 F.2d 1153, 1160 (5th Cir.1986); cf. Wexler v. Westfield Board of Education, 784 F.2d 176, 182 (3d Cir.) (parents' withdrawal of child prior to enactment of ง 1415(e)(3) relieved town of liability for reimbursement), cert. denied, 479 U.S. 825, 107 S.Ct. 99, 93 L.Ed.2d 49 (1986). The parties have not cited, nor can this Court find, any legal authority addressing a factual pattern similar to B.G.'s where the claim for relief is directed toward the "related services" provision of the EAHCA.[5] However, the last sentence of 20 U.S.C. ง 1415(e)(2) provides guidance by use of the phrase "such relief as the court determines is appropriate." This provision was interpreted in Burlington, 471 U.S. at 374, 105 S.Ct. at 2005, to mean that equitable considerations are relevant in fashioning relief. Muth, 839 F.2d at 126. Therefore, whether reimbursement is appropriate and at what amount should be determined by "balancing the equities" of the particular case. Jenkins v. Florida, 815 F.2d 629 (11th Cir.1987). The Alamo court suggested factors to be considered in deciding the reimbursement issue. The factors are (1) the existence of other, perhaps more suitable substitute placements; (2) the parents' effort in securing alternative placements; and (3) the general cooperative or uncooperative position of the school district itself. 790 F.2d at 1161. Similarly, the Wexler court, exercising its broad discretion in denying reimbursement, was strongly influenced by the parents' *1164 failure to investigate the town's proposed program, as well as their placement of the child in another school without prior notice to or discussion with the school board. See 784 F.2d at 179, 183. With these thoughts in mind, a consideration of F.G.'s claim for reimbursement is appropriate. A. Whether the Youth Behavioral Program Was Part of an Individualized Education Program Tailored to Meet the Unique Needs of B.G. B.G. is a handicapped child who is classified as E.D. Each psychotherapist who examined him prior to his placement at YBP recommended a residential placement. Despite that knowledge, F.G. voluntarily and unilaterally placed B.G. with YBP. As previously stated, YBP is not an educational program and does not contain an educational component. It relies on the Jefferson County public school system for the education of its enrollees. B.G. was an unclassified student who was main-streamed (that is, placed with non-handicapped children). No IEP exists demonstrating that YBP's program was tailored to meet B.G.'s unique needs or that he would receive an educational benefit from it. In fact, after two years at YBP, B.G. made no visible educational headway. The program afforded by YBP is undoubtedly a psychotherapeutic program but it is not a "related service" as contemplated by the relevant sections of the EAHCA. By definition, a "related service" is one that is required to assist a handicapped child in benefiting from special education. 20 U.S.C. ง 1401(17). Psychological services isolated from and incongruent with the educational experience necessarily fall outside the ambit of "related services." New Jersey, as pointed out in Geis v. Board of Education, 774 F.2d 575, 582 (3d Cir.1985), requires that its children be afforded a program that assures them the fullest opportunity to develop their intellectual capacities. The YBP program fails to measure up to that standard because it is not an educational program. The ALJ first found that the YBP placement may be a related service under the education laws. Notwithstanding this gratuitous statement, she subsequently found YBP to be an inappropriate placement because of the absence of a self-contained class for emotionally disturbed students. Measured by the Alamo factors, the Court finds that there exist more suitable placements for B.G.;[6] that the F.G.'s employed minimal efforts in securing alternative placements; and that the CST, though misguided, was generally cooperative. At all times the CST stood ready, willing and able to discuss a negotiated program with the F.G.'s. Nonetheless, the F.G.'s voluntarily and unilaterally removed B.G. from his school district and placed him with YBP without prior notice or discussion with the CST. Burlington and its progeny invest the Court with great discretion and call upon it to fashion relief with equitable considerations in mind. In balancing the equities between the Board and F.G., the Court finds that the scales of justice convincingly preponderate in favor of the Board. Having determined that B.G.'s placement at YBP was inappropriate and that its psychological component does not qualify as "related services," the Court is constrained to deny F.G.'s claim for reimbursement. As stated in Burlington, 471 U.S. at 373-74, 105 S.Ct. at 2004, "parents who unilaterally change their child's placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk." B. Whether Equitable Considerations Require a Denial of Reimbursement A common thread of concern for parents' procedural safeguards is woven throughout the fabric of the statutory, administrative and decisional law. The EAHCA, in 20 U.S.C. ง 1415, requires state, local and intermediate educational agencies to establish and maintain procedures to assure that handicapped children and their parents will play an integral part in the formulation and development of an IEP that satisfies the *1165 free appropriate public education imperative. Included among parental rights are the opportunity to examine all relevant records pertaining to their child; written notice when the school agency proposes or refuses to initiate a change; an opportunity to present complaints; a right to a due process hearing; and, if necessary, the right to bring a civil action in any state court of competent jurisdiction or in a district court of the United States. The rules of the New Jersey Department of Education provide parallel protection to parents of handicapped children. Moreover, they attempt to resolve conflicts between parents and a school district prior to a request for a due process hearing. N.J.A.C. 6:28-2.6(a)(1). Such conflict resolution may occur through an administrative review by the local district or through mediation by the Department of Education. Id. 6:28-2.6(b) & (c). In recounting the manner in which an IEP should be developed, the Supreme Court in Burlington employed words and phrases such as "jointly" and "cooperative approach." 471 U.S. at 368, 105 S.Ct. at 2002. It cautioned that the fashioning of relief, including retroactive reimbursement to parents, is subject to equitable considerations. Id. at 374, 105 S.Ct. at 2005. Other courts have noted the immense importance of involving parents in the development of their child's educational program. E.g., Scituate School Committee v. Robert B., 620 F.Supp. 1224, 1229 (D.R.I.1985), aff'd, 795 F.2d 77 (1st Cir.1986). The Robert B. court noted that "[t]he procedural requirements of the Act are not satisfied if the parents are included `only in the initial and penultimate steps of the planning process.'" Id. at 1229-30 (quoting Lang v. Braintree School Committee, 545 F.Supp. 1221, 1223 (D.Mass.1982)). The need for parental participation cannot be overstated. It is a prudent course and an enforceable legal right for them to participate in the development of an IEP for their child. The Robert B. opinion is particularly helpful in focusing on the interplay between parents and school authorities. The court in that case stated: The mere fact that the school came to the meeting with a document that was titled Independent Education Program and was dated to take effect immediately does not invalidate the IEP meeting of October 20, or the product of that meeting. An IEP should contain, whenever appropriate, "the projected date for initiation and anticipated duration of such services." 20 U.S.C.A. ง 1401(19) (West 1978). That the school's proposal evidenced a desire to commence Todd's education as soon as parental permission was received does not in and of itself indicate that the school came to the October 20 meeting with an immutable, unchangeable, completed plan subject only to parental acceptance or rejection. Additionally, it is "appropriate for agency staff to come prepared with evaluation findings, statements of present levels of educational performance, and a recommendation regarding: annual goals, short term instructional objectives, and the kind of special education and related services to be provided. However, the agency must make it clear to the parents at the outset of the meeting that the services proposed by the agency are only recommendations for review discussion with the parents". (Education for the Handicapped Law Report, Supplement 4, February 6, 1981, p. 103:59) * * * * * * After evaluating the relevant information available to me, I have determined that the October 20, 1981 IEP was a valid product of the approved process. The requisite opportunity for parental involvement, crucial to acceptance and implementation of a valid IEP, did exist. The IEP which was prepared prior to the conference was a professional recommendation only; the purpose of the meeting was to discuss the proposals, receive input from any interested parties, and to formulate a final, formal independent education program for Todd. 620 F.Supp. at 1231. The preceding jurisprudence vigorously promotes parental participation with almost *1166 a singleminded resolve in every phase of the IEP's development and preparation. The F.G.'s disavowed the participatory process after the initial CST meeting at which B.G. was classified P.I. Although they attended a subsequent conference, approximately eight months later, their attendance was purely in response to the ALJ's decision changing B.G.'s classification from P.I. to E.D. Their conduct was impermissible and contrary to the stated purposes of the EAHCA. The precepts of the law are clear and available to all who come forth with a cooperative spirit and an open mind. The F.G.'s were aware of their right to offer input to the CST. In their disappointment over the proposed IEP's, they lost sight of the process and unilaterally placed B.G. at YBP without prior notice or discussion with the Board. They made no inquiry about the proposed IEP nor did they register any constructive criticism. Equally controlling in the Court's decision is the CST and Board's respect for the procedural safeguards of the F.G.'s. The proposed IEP, though substantively inadequate, was procedurally correct. The substantive inadequacy was legally insufficient to evoke F.G.'s response that "any further contact or effort to request a different placement [would be] a waste of time." The CST at all times was prepared to alter or supplement the IEP if it proved to be ineffective. As Mrs. DePinto, the certified social worker stated, "[t]he program was not written in stone." When a Court, such as this, is authorized to apply equitable considerations and balance the equities in a particular case, the conduct of the parties is extremely relevant. To the F.G.'s the Youth Behavior Program became an idee fix้. They lost sight of the comprehensive nature of the EAHCA, as well as the remedial conflict resolution measures of the N.J.A.C.[7] They palpably failed on the Alamo factors, and unwisely ignored the Robert B. insights. Conduct that disregards the participatory process cannot be ignored nor condoned. The cross-pollination of ideas between parents and school authorities expresses hope, trust and confidence in the system and inures to the benefit of the child, who is entitled to a free appropriate public education. The cooperative efforts of parents and school authorities are inextricably intertwined with a handicapped child's inalienable right to a "free appropriate public education." Whoever disrupts that cooperative venture, and thus interferes with the child's rightโ€”whether it be parents or school authoritiesโ€”does so at his or her financial peril. CONCLUSION B.G.'s placement at the Youth Behavior Program and the therapeutic intervention he received do not qualify as "related services" under the EAHCA and the N.J.A.C. Further, equitable considerations require a denial of reimbursement. NOTES [1] 20 U.S.C. ง 1401(19) provides: The term `individualized education program' means a written statement for each handicapped child developed in any meeting by a representative of the local educational agency or an intermediate educational unit who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of handicapped children, the teacher, the parents or guardian of such child, and, whenever appropriate, such child, which statement shall include (A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, an (E) appropriate objective criteria evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. [2] 20 U.S.C. ง 1415(e)(2) & (3) provides: (2) Any party aggrieved by the findings and decision made under subsection (b) of this section who does not have the right to an appeal under subsection (c) of this section, and any party aggrieved by the findings and decision under subsection (c) of this section, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. (3) During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents or guardian, be placed in the public school program until all such proceedings have been completed. [3] N.J.A.C. 6:28-1.1(b)(1) reads as follows: `Related services' for educationally handicapped pupils means counseling for pupils, counseling and/or training for parents relative to the education of a pupil, speech correction, recreation, occupational therapy, physical therapy, transportation, as well as any other appropriate developmental, corrective and supportive services required for a pupil to benefit from education and as indicated in the pupil's individualized education program. See N.J.A.C. 6:28-3.7(e)(6) as to "other related services as necessary...." [4] The "stay put" provision attempts to preserve the status quo and to minimize the delay that accompanies disputes over educational programs. It ensures that a school cannot eject a child without complying with due process requirements. Tokarcik v. Forest Hills School District, 665 F.2d 443, 453 (3d Cir.1981), cert. denied, 458 U.S. 1121, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982). [5] Many courts have denied reimbursement simply because the voluntary and unilateral placement was not on the state's "approved list" of out-of-district placements. Antkowiak v. Ambach, 838 F.2d 635, 642 (2d Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 133, 102 L.Ed.2d 105 (1988). [6] B.G. is currently enrolled as a residential student at Deveraux House. [7] Though the Department of Education held settlement conferences on July 10, 1986 and April 1, 1987, each occurred after the request for a due process hearing.

455 F.Supp.2d 453 (2006) WONDER WORKS and Wonder Workshops, Inc., Plaintiff, v. CRANIUM, INC., Defendant. No.: 2:06-1896. United States District Court, D. South Carolina, Charleston Division. August 22, 2006. *454 *455 Douglas W. Kim, Hunter S. Freeman, McNair Law Firm, Greenville, SC, for Plaintiff. Brent OE Clinkscale, Jacquelyn D. Austin, Jeffrey Pascoe, Womble Carlyle Sandridge and Rice, Greenville, SC, John D. Denkenberger, Robert J. Carlson, Christensen O'Connor Johnson Kindness, Seattle, WA, for Defendant. ORDER DUFFY, District Judge. On July 19, 2006, Plaintiff Wonder Works and Wonder Workshops, Inc. ("Wonder Works" or "Plaintiff'), moved this court for a preliminary injunction to enjoin Cranium, Inc. ("Cranium" or "Defendant") from using the marks WODERWORKS, CRANIUM WONDEWORKS, any mark containing WONDER WORKS or any other mark that is confusingly similar to Plaintiffs WONDER WORKS registered marks. On August 17, 2006, the court held a hearing during which it heard the parties' arguments regarding the motion. BACKGROUND Plaintiff has been in the business of selling and distributing toys and games in Charleston County, South Carolina under its WONDER WORKS mark for nearly sixteen years. Plaintiff has two locations, one in Mount Pleasant and one in the West Ashley neighborhood of Charleston. On or about March 4, 1991, Plaintiff filed federal service mark applications for the mark WONDER WORKS and design, to be used in association with retail toy and gift store services. These federal mark applications matured into U.S. Trademark Registrations Nos. 1,765,042 and 1,695,058 on or about June 16, 1992 (the "Marks"). Both of these registered Marks have become "incontestable" pursuant to 15 U.S.C. § 1065. Therefore, Plaintiff's registrations are conclusive evidence of the validity of the registered Marks, of the registration of the Marks, of the owner's ownership of the Marks, and of the owner's exclusive right to use the Marks with the goods/services. 15 U.S.C. § 1115(b). Plaintiff uses its Marks both at its retail store and on the Internet through its website, www. wonderworkscharleston.com, which receives about 500 "hits" a day. Plaintiffs website is not interactive in any way; however, it lists both a local and an 888 number and encourages potential customers to order goods that it offers to ship throughout the nation. Defendant Cranium, Inc. is in the business of designing, creating, and manufacturing toys, games, and board games. Defendant sells its Cranium products across the nation. Since at least 2000, Plaintiff has sold Cranium products in its Wonder Works retail toy stores. Given that Defendant *456 maintained a business relationship with Plaintiff, Plaintiff asserts that Defendant knew, or should have known, of Plaintiffs use of the Mark. On April 15, 2005, Defendant filed a federal trademark application for the mark WONDERWORKS in association with toys, activity toys, creativity toys, video games, computer software, paper goods, and printed matter. On or about November 17, 2005, the Trademark Office refused to register Defendant's trademark application based, in part, on the fact that when used in connection with the goods identified in the application, Cranium's WODERWORKS mark is likely to cause confusion with Plaintiffs WONDER WORKS marks. Defendant filed another federal trademark application for the mark CRANIUM WONDERWORKS on or about March 1, 2006. Approximately fifteen days after filing this second application, Defendant contacted Plaintiff to inquire whether Defendant could use the WONDERWORKS mark for a new line of toys. Shortly thereafter, Defendant provided Plaintiff with a proposed agreement entitled "Trademark Co-Existence Agreement." Plaintiff refused to enter the agreement or to consent to Defendant's use of the WODERWORKS mark. Plaintiff insisted that Defendant either enter into a license agreement with Wonder Works or discontinue any plans to use any mark including WONDER WORKS or any other confusingly similar marks in association with toys or games. Despite knowing that Plaintiff does not consent to any use of WONDERWORKS and/or CRANIUM WONDERWORKS in connection with toys and/or games, Defendant began using these marks in advertising, marketing, selling, and offering for sale three games that target the same type of customers to which Plaintiff targets its retail toy store services. Cranium also advertises and sells the games under the contested CRANIUM WONDERWORKS mark on its website, www.cranium.com. On June 27, 2006, Plaintiff filed this action against Defendant Cranium, alleging violations of the Lanham Act, 15 U.S.C. §§ 1114 and 1125(a), common law trademark infringement, violations of the South Carolina Unfair Trade Practices Act, and interference with prospective economic relations. Plaintiff now seeks a preliminary injunction to enjoin Defendant from further use of the contested WODERWORKS and/or CRANIUM WODERWORKS marks. ANALYSIS In the Fourth Circuit, the entry of a preliminary injunction is governed by the four-part test set forth in Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir.1977), which requires the court to consider: (1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction were to be denied, (2) the likelihood of irreparable injury to the defendants is the request were granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest. Id. at 193-95. When deciding whether to grant a preliminary injunction, the court must first determine whether the plaintiff has made a strong showing of irreparable harm if the injunction is denied; if such a showing is made, the court must then balance the likelihood of harm to the plaintiff against the likelihood of harm to the defendant. See Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 859 (4th Cir.2001); Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F2d 802, 812 (4th Cir.1991). If the balance of the hardships "tips decidedly in favor of the plaintiff," Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 *457 (4th Cir.1991) (internal quotation marks omitted), then typically it will "be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation," Blackwelder, 550 F.2d at 195 (internal quotation marks omitted). But if the balance of hardships is substantially equal as between the plaintiff and defendant, then "the probability of success begins to assume real significance, and interim relief is more likely to require a clear showing of a likelihood of success." Direx, 952 F.2d at 808 (internal quotation marks omitted). The Fourth Circuit has held that, in the context of a Lanham Act trademark infringement action, "[a] finding of irreparable injury [to the plaintiff] ordinarily follows when a likelihood of confusion or possible risk to reputation appears." Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 938 (4th Cir.1995) (quoting Wynn Oil Co. v. American Way Service Corp., 943 F.2d 595, 608 (6th Cir.1991)); see Scotts Co. v. United Industries Corp., 315 F.3d 264, 273 (4th Cir.2002) ("In Lanham Act cases involving trademark infringement, a presumption of irreparable injury is generally applied once the plaintiff has demonstrated a likelihood of confusion, the key element in an infringement case."); see also Eli Lilly & Co. v. Natural Answers, Inc., 233 F.3d 456, 469 (7th Cir.2000) ("Irreparable harm is generally presumed in cases of trademark infringement and dilution."); Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 142 (2nd Cir.1997) ("In the context of trademark and unfair competition injunctions, the requirement of irreparable harm carries no independent weight, as we have held that a showing of likelihood of confusion (a requirement of both trademark infringement and unfair competition claims) establishes irreparable harm."); Helene Curtis Industries, Inc. v. Church & Dwight Co., Inc., 560 F.2d 1325, 1332 (7th Cir.1977) (holding that the complete injury from trademark infringement "almost inevitably" results in irreparable injury that is not, fully compensable in damages). Another district court in this Circuit has added that: "[Infringement] gives rise to irreparable injury, in that plaintiff has lost control of its business reputation to this extent, there is substantial likelihood of confusion of the purchasing public, there may be no monetary recovery available, and there is an inherent injury to the `good will and reputation of the plaintiff." Philip Morris Inc. v. Mid-West Tobacco Inc., 9 U.S.P.Q.2d 1210, 1215, 1988 WL 150693 (E.D.Va.1988) (quoting Long John Silver's Inc. v. Washington Franchise, Inc., 209 U.S.P.Q. 146, 149, 1980 WL 30249 (E.D.Va.1980)). In this case, Plaintiff asserts that, if the court does not issue a preliminary injunction, it will be irreparably harmed by the inevitable devaluing of its Marks inherent in the continuing infringement of its Marks. As such, the "likelihood of irreparable harm to Plaintiff" question is intertwined with questions about the merits of the infringement action. Accordingly, the court's analysis of the balance-of-the-hardship question will first require a detour into the substance of Plaintiffs Lanham Act claims. Scotts Co., 315 F.3d at 272. To succeed on a Lanham Act cause of action for trademark infringement, a plaintiff must show that (1) its mark is protectable[1] and that (2) the use *458 of the junior mark is likely to confuse the public. 15 U.S.C. §§ 1114(1)(a). "[I]t is not necessary for the owner of the registered trademark to show actual confusion: the test is whether there is likelihood of confusion." Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir.1984). If the use of the contested mark is likely to cause such "likelihood," the owner of the registered trademark is entitled to relief. Id. The factors to be considered in determining likelihood of confusion are: (a) the strength or distinctiveness of the mark; (b) the similarity of the two marks; (c) the similarity of the goods or services the marks identify; (d) the similarity of the facilities the two parties use in their businesses; (e) the similarity of the advertising used by the two parties; (f) the defendant's intent; and (g) actual confusion. Id. (citing Sun-Fun Products v. Suntan Research & Development, 656 F.2d 186, 189 (5th Cir.1981)). The court generally applies these factors, but with the understanding that "[n]ot all these [factors] are always relevant or equally emphasized in each case." Modular Cinemas of America, Inc. v. Mini Cinemas Corp., 348 F.Supp. 578, 582 (S.D.N.Y.1972). Considering the above factors, the court is not convinced that Plaintiff has made the requisite showing of likelihood of confusion. First, in determining the strength of the Mark, the court weighs two aspects of strength:(1) Conceptual Strength: the placement of the inherent distinctiveness of the mark on the spectrum of marks; and (2) Commercial Strength: the marketplace recognition value of the mark. Renaissance Greeting Cards, Inc. v. Dollar Tree Stores, Inc., 405 F.Supp 2d 680 (E .D .Va 2005) (citing McCarthy on Trademarks § 11:83); see Petro Stopping Centers, L.P. v. James River Petroleum, Inc., 130 F.3d 88, 93 (4th Cir.1997) ("Thus, courts must examine, in addition to the mark's characterization as suggestive or descriptive, the extent of secondary meaning a mark has acquired in the eyes of consumers."). The court agrees that Plaintiffs sixteen year, uninterrupted use of WONDER WORKS in its retail business constitutes a showing of the commercial strength of the Mark, especially considering the great deal of time, money, and effort Plaintiff spent building its reputation in the Charleston area. However, as Defendant points out, many third-parties[2] use the mark WONDER WORKS (either alone or in combination with other words) in association with children's activities and products throughout the nation. Such prevalent third party usage undermines Plaintiffs claim that the WONDER WORKS mark is particularly distinctive. In re Broadway Chicken, Inc., 1996 WL 253841, 38 U.S.P.Q.2d 1559 (Trademark Tr. & App. Bd.1996) ("Evidence of widespread third-party use, in a particular field, of marks containing a certain shared term is competent to suggest that purchasers have been conditioned to look to other *459 elements of the marks as a means of distinguishing the source of goods or services in the field."). As such, the court finds that, although Plaintiff has proven that the Mark has significant commercial strength, Plaintiff has not shown that the inherent distinctiveness of the Mark is particularly strong. Second, the court is not convinced that the Plaintiff has proven that the Marks and Defendant's allegedly infringing mark are so similar as to be likely to cause confusion. Plaintiffs Mark is WODER WORKS and Defendant's contested mark is CRANIUM WONDERWORKS. The well-known Cranium house mark— with its signature purple brain logo—is a part of the allegedly offending mark, and is obviously not a part of Plaintiffs Marks. Although clearly "exact similitude is not required" for a finding that marks are confusingly similar, Washington Speakers Bureau Inc. v. Leading Authorities Inc., 33 F.Supp.2d 488, 49 U.S.P.Q.2d 1893 (E.D.Va.1999), aff'd 217 F.3d 843 (4th Cir. 2000) ("[A]bsolute identity is not necessary for infringement; all that is necessary is enough similarity between the marks to confuse consumers."), the inclusion of the Cranium house mark could minimize the risk that the marks are confusingly similar. Other courts have held the prominent use of a well-known house mark considerably reduced or eliminated the likelihood of confusion. See W.W.W. Pharmaceutical Co. v. Gillette Co., 808 F.Supp. 1013 (S.D.N.Y.1992), aff'd 984 F.2d 567 (2d Cir. 1993) (no likelihood of confusion between RIGHT GUARD SPORT STICK for deodorant and SPORTSTICK for lipbalm because of use of RIGHT GUARD); A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d 198 (3d Cir.2000) (finding no likelihood of confusion between MIRACLESUIT and MIRACLE BRA, both for swimwear, where latter was used with a house mark: "affixing a well-known house mark like that of Victoria's Secret can help diminish the likelihood of confusion."). The court further notes that the fonts and symbols on the allegedly similar marks are not the same. The court refrains from determining whether the use of the Cranium house mark and the variations in styling sufficiently differentiates Defendant's mark from the' Marks;[3] however, these differences lessen the possibility that the marks are so similar as to cause confusion. Because Plaintiff has not shown that its Marks are inherently distinctive and that the contested mark is confusingly similar to the Marks, the court finds that Plaintiff has not proven a strong likelihood of consumer confusion. This finding undermines Plaintiffs claim that its reputation and Marks would be' irreparably harmed absent the issuance of a preliminary injunction. 'Scotts Co., 315 F.3d at 283 ("[B]ecause we have rejected [Plaintiffs] evidence of consumer confusion, it follows that the district court erred by applying the presumption of irreparable harm."). Further, the court finds that Defendant would be substantially harmed by a an order enjoining distribution of toys bearing the CRANIUM WONDEWORKS mark. These toys are already in stores, in customer distribution centers and warehouses throughout the United States, and in daily production. If enjoined, Defendant would be faced with the cost of recalling all of its products already in the hands of consumers; shipping them *460 back to Cranium; designing, printing and fabricating new packaging; re-boxing the products and distributing them once again. Even if the court were to limit an injunction to Charleston County, which Defendant claims is the "geographic area in which [Plaintiff] provides services under its mark," such an injunction would cause significant monetary losses to Cranium. Where the harm suffered may be compensated by an award of money damages at judgment, courts generally have refused to find that harm irreparable. Hughes Network Systems, Inc. v. InterDigital Communications Corp., 17 F.3d 691, 694 (4th Cir.1994). However, in this case, the court is concerned that the bond required to protect Defendant's interests should Plaintiff not succeed on the merits of its case would be so large as to be impossible for Plaintiff to provide. Courts have held that irreparable harm may still exist, even where the injury is purely monetary, where "[d]amages may be unobtainable from the defendant because he may become insolvent before a final judgment can be entered and collected." Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir.1984); see also Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 206 (3d Cir.1990) (holding that "the unsatisfiability of a money judgment can constitute irreparable injury"). Applying this reasoning, the court finds that Defendant could be irreparably harmed by the issuance of an injunction because, if Plaintiff is unsuccessful on the merits, it is unlikely that Plaintiff would have the means to fund a bond that would adequately compensate Defendant for the loss caused by the injunction. Plaintiff does not contest that an injunction would harm Defendant. However, because Defendant had knowledge of the preexisting mark—through its distributorretailer relationship with Plaintiff and though the Trademark Office's denial of their first application for the WONDEWORKS mark—Plaintiff asserts that Defendant's investment in the CRANIUM WONDERWORKS campaign was made at Defendant's own risk and with full knowledge of Plaintiff's rights. Accordingly, Plaintiff argues that Defendant cannot claim that it would be irreparably harmed if the injunction is granted, because such harm was self-inflicted. Plaintiff's argument, however, is without merit. The Fourth Circuit instructs courts that it is error to consider, the likely harm to the defendant with any less weight because such harm may have been self-inflicted. As that Court explains, If self-made harm is given substantially less weight, as it was by the district court in this case, then the balance of the harms will almost always favor the plaintiff, thus transforming a preliminary injunction from an extraordinary remedy into a routine occurrence. And when the purpose behind the requirement that the court balance the harms is recognized, it becomes apparent that it is error to dismiss as self-inflicted the harms that might be suffered by a defendant if an injunction were to issue. "[G]ranting a preliminary injunction requires that a district court, acting on an incomplete record, order a party to act, or refrain from acting, in a certain way. `The danger of a mistake in this setting is substantial.'" Hughes Network Sys., Inc. v. InterDigital Communications Corp., 17 F.3d 691, 693 (4th Cir.1994) (internal alteration omitted) (quoting American Hosp. Supply Corp. v. Hospital Prods. Ltd., 780 F.2d 589, 593 (7th Cir.1986)). . . . Thus, while cases frequently speak in the short-hand of considering the harm to the plaintiff if the injunction is denied and the harm to the defendant if the injunction is granted, the real issue in this regard is the degree *461 of harm that will be suffered by the plaintiff or the defendant if the injunction is improperly granted or denied: If the judge grants the preliminary injunction to a plaintiff who it later turns out is not entitled to any judicial reliefwhose legal rights have not been violated-the judge commits a mistake whose gravity is measured by the irreparable harm, if any, that the injunction causes to the defendant while it is in effect. If the judge denies the preliminary injunction to a plaintiff who it later turns out is entitled to judicial relief, the judge commits a mistake whose gravity is measured by the irreparable harm, if any, that the denial of the preliminary injunction does to the plaintiff. American Hosp. Supply Corp., 780 F.2d at 593. By dismissing outright or giving less weight to the harm that would be suffered by a defendant on the grounds that the harm was self-inflicted, a court is effectively considering the harms that would flow from a properly entered injunction (that is, an injunction entered against a defendant who would go on to lose) rather than considering the harms that would flow from an injunction entered in error (an injunction entered against a defendant who would go on to win). We therefore believe that it is error for a district court to conclude that any harm that would be suffered by a defendant was self-inflicted and thus entitled to lesser weight in the balancingof-the-harms portion of the preliminary injunction calculus. Scotts Co., 315 F.3d at 284-85. After receiving such instruction from the Fourth Circuit, the court will not give less weight to Defendant's likely harm because such harm is allegedly "self-inflicted." Plaintiff Wonder Works has shown that it may succeed on the merits of this case; however, where the Defendant is likely to suffer such strong injuries, Plaintiff must make "a clear showing of a likelihood of success" to justify the issuance of a preliminary injunction. Direx, 952 F.2d at 808 As such, the court finds that a preliminary injunction is not appropriate at this time. The court orders, however, that this case be tried on an expedited schedule, so as to determine the merits of Plaintiff's causes of action as quickly as possible and thus minimize any possible further harm to either party. CONCLUSION It is therefore ORDERED, for the foregoing reasons, that Plaintiff Wonder Works and Wonder Workshops, Inc.'s Motion for Preliminary Injunction is hereby DENIED. The parties are further ODERED to submit a Scheduling Order, setting the trial of this matter in six months, within five days of the issuance of the Order. AND IT IS SO ORDERED. NOTES [1] In this case, Plaintiff claims that it has used the WONDER WORKS mark in conjunction with its retail toy and games services for sixteen years following the registration, of the mark. As such, Plaintiff claims that its right to use the Mark is incontestable, pursuant to 15 U.S.C. § 1065, and thus the registration constitutes conclusive evidence of the validity of its mark, the registration of the marks, Plaintiff's ownership of the marks, and Plaintiff's exclusive right to the marks. 15 U.S.C. § 1115(b). Defendant does not deny that the Mark is incontestable pursuant to section 1065; therefore, the court should consider the Mark to be "protectable." [2] Defendant names several entities in Illinois, Florida and Tennessee that operate educational and amusement facilities under the Wonder Works trade name, and include onpremises retail sale of toys and souvenirs [3] The court remains concerned, for example, that the Cranium house mark is not prominent enough to "cleanse" the other similarities between the marks. The court is also concerned that the WONDERWORKS part of the Cranium mark appears to be two words, not one word as described in the trademark application.

United States Court of Appeals For the First Circuit No. 11-1559 COORS BREWING COMPANY, Plaintiff, Appellant, v. JUAN CARLOS MÉNDEZ-TORRES, Secretary of the Treasury Department of the Commonwealth of Puerto Rico, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge] Before Lynch, Chief Judge, Torruella and Lipez, Circuit Judges. Helgi C. Walker, with whom William S. Consovoy, Claire J. Evans, Brett A. Shumate, Wiley Rein LLP, Pedro Jiménez, and Adsuar Muñiz Goyco Seda & Pérez-Ochoa, P.S.C. were on brief, for appellant. Susana I. Peñagarícano-Brown, Assistant Solicitor General, with whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. Girón-Anadón, Deputy Solicitor General, were on brief, for appellee. April 27, 2012  LYNCH, Chief Judge. The question presented in this case is whether the Supreme Court's decision in Levin v. Commerce Energy, Inc., 130 S. Ct. 2323 (2010), requires the federal courts to refrain from exercising jurisdiction over this case, a dormant Commerce Clause attack on Puerto Rico's differential taxation of categories of brewers. We answer that question affirmatively and affirm the district court's dismissal on comity grounds. Puerto Rico has classified Coors Brewing Co. ("Coors") as a "large brewer" under its beer tax schedule and accordingly taxes Coors at a higher rate than it taxes "small brewers," including local Puerto Rico brewer Cervecería India. In 2006, Coors brought suit in federal district court against Juan Carlos Méndez–Torres, Puerto Rico's Secretary of the Treasury Department (the "Secretary"), challenging this differential treatment under the dormant Commerce Clause. The district court originally dismissed the case on comity grounds, but in 2009, this court reversed that decision, interpreting the Supreme Court's decision in Hibbs v. Winn, 542 U.S. 88 (2004), to conclude that neither comity nor any federal statute barred Coors from seeking relief from the state taxation scheme in federal court. Coors Brewing Co. v. Méndez-Torres (Coors Brewing Co.), 562 F.3d 3 (1st Cir. 2009). On remand to the district court, the parties moved toward a final resolution of the case, stipulating to resolve Coors's motion for summary judgment before any other matter pending in the -2- case. As it turned out, the Supreme Court interpreted Hibbs differently than we predicted. On June 1, 2010, the Supreme Court decided Levin, which expressly abrogated this court's 2009 Coors Brewing Co. decision. On July 14, 2010, the Secretary moved the district court to dismiss the case based on Levin. The district court then issued an opinion in which it reached Coors's motion for summary judgment, which it denied, before granting the Secretary's motion to dismiss on grounds of comity. Coors has appealed both decisions, arguing primarily that the Secretary consented to resolving this case in federal court, and that, even if he had not, the Puerto Rico courts do not provide the "plain, adequate, and complete" forum required under comity, and that equity requires reversal here for other reasons. Because we find that the Secretary has not consented to litigate this case in federal court, and because we have long found the Puerto Rico courts to provide an "adequate state forum" for the adjudication of federal constitutional claims, and no other grounds justify retention of jurisdiction, we affirm the district court's grant of the Secretary's motion to dismiss. We also vacate the district court's merits ruling denying Coors summary judgment; it will have no effect on any later proceedings in the courts of Puerto Rico. -3-  We do not address the merits of Coors's challenge to the beer tax regime and make no ruling as to the validity of that regime under the dormant Commerce Clause. Should Coors choose to pursue its case in the Puerto Rico courts, it may press its federal constitutional claims there and, should it receive an unfavorable disposition, it may seek further review of any substantial federal claims in the U.S. Supreme Court. Pleasures of San Patricio, Inc. v. Méndez-Torres, 596 F.3d 1, 7 (1st Cir. 2010). I. Puerto Rico has a long history of differentiating in its beer excise tax between "small" and "large" brewers, and the "large" brewers have a long history of bringing challenges to this differentiation. In 1969, Puerto Rico first imposed a uniform excise tax of $0.75 per gallon on all beer sold within the Commonwealth. P.R. Law 143 of June 30, 1969. In 1978, the legislature began differentiating within this tax between "large brewers," those producing more than 31 million gallons annually, and "small brewers," those producing less than that amount. That same year, the tax on large brewers was raised to $1.60 per gallon, while the tax on small brewers was set at $1.05 per gallon. P.R. Law 37 of July 13, 1978. This $0.55 differential between large and small brewers held steady until 2002, when the legislature amended the law to increase the difference to $1.90 per gallon. The large brewer tax was raised to $4.05 per gallon; the small brewer tax to -4- $2.15 per gallon, and four intermediate gradations were added in between.1 P.R. Laws. Ann. tit. 13, § 9521 (2002). In 2004, the legislature again amended the regime, this time, to permit small brewers to pay the tax rates for each of the respective lower gradations, so long as their total per annum production remained below 31 million gallons. P.R. Laws. Ann. tit. 13, § 9574 (2004). A. Early Litigation Since the 1978 amendments, Puerto Rico's beer tax has undergone almost continuous litigation in state and federal court. In 1978, the United States Brewers Association ("USBA") brought initial challenges to the tax regime in both the federal district and Puerto Rico courts. Under the Butler Act, 48 U.S.C. § 872, a close analogue to the Tax Injunction Act ("TIA"), 28 U.S.C. § 1341,2 the federal district court directed USBA to seek a 1 As of 2002, the gradations within the excise tax were as follows: Gallons Produced Tax Rate (/gal.) 0 to 9 million $2.15 9 to 10 million $2.36 10 to 11 million $2.57 11 to 12 million $2.78 12 to 31 million $2.99 Over 31 million $4.05 P.R. Laws Ann. tit. 13, § 9521 (2002). 2 Under the Butler Act, "No suit for the purpose of restraining the assessment or collection of any tax imposed by the laws of Puerto Rico shall be maintained in the United States District Court for the District of Puerto Rico." 48 U.S.C. § 872. The TIA, which is not applicable to Puerto Rico, reads: "The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a -5- decision in state court on the merits of the tax challenge, but retained jurisdiction over the suit in the event the state courts failed to provide a "plain, speedy and efficient remedy." U.S. Brewers Ass'n v. Cesar Perez, 455 F. Supp. 1159, 1164 (D.P.R. 1978) (internal quotation marks omitted). USBA accordingly brought its case in state court, where it lost on the merits. The Puerto Rico Superior Court rejected USBA's various constitutional and other challenges to the tax and dismissed the complaint, U.S. Brewers Ass'n v. Perez, Civ. No. PE-78-1137 (Dec. 12, 1978), and the Puerto Rico Supreme Court upheld the dismissal, U.S. Brewers Ass'n v. Sec'y of the Treasury (U.S. Brewers P.R.), 109 P.R. Dec. 456, 9 P.R. Offic. Trans. 605 (1980). Meanwhile, USBA appealed the federal district court's decision to this court, arguing that the Butler Act did not bar federal jurisdiction over the action since USBA was not seeking to reduce Puerto Rico's tax revenue. This court rejected that argument, holding that the action was barred by considerations underlying the Butler Act, namely "equity practice, . . . principles of federalism . . . and the imperative need of a State to administer its own fiscal operations," U.S. Brewers Ass'n v. Perez (U.S. Brewers), 592 F.2d 1212, 1214 (1st Cir. 1979) plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S.C. § 1341. -6- (omissions in original) (quoting Tully v. Griffin, 429 U.S. 68, 73 (1976)) (internal quotation marks omitted), and remanded to the district court for dismissal, id. at 1215. Later, on the very same day the 2002 Amendments went into effect increasing the tax differential between small and large brewers to $1.90 per gallon, a new suit was filed attacking the new law. The Puerto Rico Association of Beer Importers ("PRABI"), of which Coors was then a member, challenged the new law in Puerto Rico Superior Court. PRABI argued that the special exemption for small brewers -- which favored local Puerto Rico brewer, Cervecería India -- violated the dormant Commerce Clause. The Superior Court dismissed the case, and the Puerto Rico Supreme Court affirmed. Puerto Rican Ass'n of Beer Imps. v. Puerto Rico (Beer Imps.), 171 P.R. Dec. 140 (2007), cert. denied, 552 U.S. 1257 (2008). About two weeks after PRABI filed suit in Puerto Rico Superior Court, and before that court had ruled on the merits, Coors withdrew its claims without prejudice. Three days later, it initiated its own suit in the U.S. District Court for the District of Columbia, requesting a temporary restraining order and preliminary injunction against the enforcement of the new tax. The district court dismissed the suit with prejudice on jurisdictional grounds under the Butler Act. Coors Brewing Co. v. Calderon (Calderon), 225 F. Supp. 2d 22, 27 (D.D.C. 2002); see also id. at 26 ("Coors' argument that the Butler Act and [TIA] foreclose -7- subject matter jurisdiction only in those instances where a party seeks to enjoin the collection of taxes, thereby decreasing a state's tax revenues, is similarly unconvincing as a thinly veiled attempt to circumvent the clear will of Congress."). On appeal, Coors settled the case, agreeing to a stipulation that the district court's judgment "determines with finality the Court's lack of jurisdiction but is without prejudice to the substantive claims that the Court lacked jurisdiction to address." B. The Present Litigation over the 2004 Amendments In 2004, the Puerto Rico legislature again amended the tax regime, this time to permit small brewers to take advantage of all five lower tax gradations. P.R. Laws. Ann. tit. 13, § 9574. In response to these amendments, on November 17, 2006, Coors filed suit in the U.S. District Court for the District of Puerto Rico. It is in this suit that Coors's present appeal is taken. The suit attacked the tax differential, sought a declaration that the "Special Exemption" for small brewers violated section three of the Federal Relations Act, 48 U.S.C. § 741a, as well as the dormant Commerce Clause, and requested additional declaratory and injunctive relief under 42 U.S.C. § 1983. See Complaint, Coors Brewing Co. v. Méndez-Torres, No. 3:06-cv-02150 (Nov. 17, 2006). The Secretary initially filed a motion to dismiss with prejudice on grounds that the district court lacked subject matter jurisdiction -8- under the Butler Act and TIA, on grounds of comity, and on grounds of collateral estoppel based on the earlier decisions in U.S. Brewers P.R., Beer Imps., and Calderon. The district court dismissed the case on jurisdictional and collateral estoppel grounds. Coors made several arguments in its first appeal in this case. First, it challenged the district court's collateral estoppel ruling, arguing that its suit challenged the new, 2004 Amendments to the tax, and thus presented circumstances unaddressed in Calderon, Beer Imps. and U.S. Brewers P.R. It also argued that there had been an intervening change in the law since the district court dismissed its 2002 suit. In 2004, the Supreme Court decided Hibbs v. Winn, which held that the TIA did not bar a challenge by Arizona taxpayers to a tax credit for donations to school tuition organizations which were then permitted under state law to award tuition grants for religious schools. 542 U.S. at 92. The Supreme Court reasoned that Congress had only intended the TIA to bar federal jurisdiction in cases where state taxpayers sought to avoid paying state taxes or sought to decrease state tax revenues overall. Id. at 107. Extending this reasoning to the Butler Act, Coors argued that because it did not seek to decrease its own tax burden, but sought a higher tax rate on small brewers, neither comity not the Butler Act barred its requested relief. -9-  As said, this court ruled in favor of Coors in 2009, holding that the suit was not precluded and that neither the Butler Act nor principles of comity barred the exercise of federal jurisdiction. Coors Brewing Co., 562 F.3d at 3. We briefly summarize the reasoning set forth in that opinion. First, we held that because Calderon merely found the federal courts to be without jurisdiction to address Coors's claims, and Hibbs altered the applicable legal standard, Calderon did not foreclose a new jurisdictional inquiry. 562 F.3d at 12. Under the logic of Hibbs, we held that the Butler Act did not bar federal jurisdiction over Coors's suit. 562 F.3d at 15-16. We also rejected the Secretary's comity argument, finding that Hibbs had narrowed the comity doctrine.3 562 F.3d at 18. Thus overruling our previous decision in U.S. Brewers, we reversed the district court's grant of the Secretary's motion to dismiss and remanded for further consistent proceedings. 562 F.3d at 22-23. 3 In a footnote, the Hibbs majority had dispensed with the comity argument in that case by noting that traditionally, the Court has relied on comity "to preclude original federal-court jurisdiction only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection." Hibbs v. Winn, 542 U.S. 88, 107 n.9 (2004). This court joined several other circuit courts of appeal in reading this footnote broadly, see Commerce Energy, Inc. v. Levin, 554 F.3d 1094 (6th Cir. 2009), rev'd, Levin v. Commerce Energy, Inc., 130 S. Ct. 2323 (2010); Levy v. Pappas, 510 F.3d 755 (7th Cir. 2007); Wilbur v. Locke, 423 F.3d 1101 (9th Cir. 2005); but see DIRECTV, Inc. v. Tolson, 513 F.3d 119 (4th Cir. 2008) (construing Hibbs more narrowly), and as lifting the bar on federal court review of state tax challenges so long as the requested relief does not "arrest state revenue generation," Coors Brewing Co. v. Méndez-Torres, 562 F.3d 3, 18 (1st Cir. 2009). -10-  At this point, the Secretary elected not to seek further review of this court's adverse decision in the U.S. Supreme Court. He requested two extensions of time to consider whether to seek certiorari, noting that the case presented issues of "exceptional importance" and that he must "carefully consider the issues involved and fittingly set forth the public policy of the new administration as well as the judicial ramifications." Ultimately, he elected not to seek certiorari. C. Procedural History Since Our 2009 Opinion Soon after the mandate from this court issued in Coors Brewing Co., Coors renewed its motion for summary judgment, which it had initially filed on July 30, 2007. On July 16, 2009, the district court ordered the Secretary to show cause why the court should not grant Coors's motion. The Secretary responded in a motion requesting leave to conduct discovery pursuant to Rule 56(f), and the parties agreed to meet to resolve these discovery issues. On November 2, 2009, the U.S. Supreme Court granted certiorari in Levin v. Commerce Energy, Inc., 130 S. Ct. 496, thus raising the issue of whether comity precluded a challenge to an allegedly discriminatory state taxation scheme even where the challenger did not seek to reduce state tax revenue. That petition had been filed on August 20, 2009, about three months after the mandate had issued in Coors Brewing Co. The Secretary did not -11- bring this relevant development to the attention of the district court at this juncture; indeed, he did not even mention the case until he filed his motion to dismiss, more than one month after the Supreme Court had decided Levin. On December 23, 2009, the parties submitted a Joint Status Report in compliance with the district court's order, in which they informed the court that (1) they had agreed to limited discovery, (2) they would attempt to file a joint stipulation of certain facts within three months, and (3) they had "agreed to hold all other proceedings in abeyance until the Court rules on the Motion for Summary Judgment." After several additional discovery motions were filed, which the district court did not act upon, the parties filed their joint stipulation of facts in accordance with their agreement on March 16, 2010.4 On June 1, 2010, the Supreme Court decided Levin v. Commerce Energy, Inc., 130 S. Ct. 2323, reversing the U.S. Court of Appeals for the Sixth Circuit and abrogating this court's decision in Coors Brewing Co. On July 14, 2010, the Secretary filed a motion to dismiss in light of Levin; however, he did not seek relief from or even mention in this motion the stipulation agreement to hold all other matters in abeyance until a decision on summary judgment. In its opposition, Coors argued that by entering 4 On that same day, the Secretary filed a motion requesting relief from the agreement regarding discovery on other grounds not at issue here. -12- into the stipulation agreement on December 23, 2009, the Secretary had "voluntarily submitted" to a merits determination in federal court. In addition, Coors argued that even if Levin applied, comity did not justify dismissal in this case because the Puerto Rico courts would not provide a "plain, adequate, and complete remedy" for Coors's suit. On December 29, 2010, the district court referred all pending motions in the case to a magistrate judge for a report and recommendation. On February 10, 2011, the magistrate judge recommended that Coors's motion for summary judgment be denied and the Secretary's motion to dismiss be granted. As an initial matter, the magistrate judge recommended that the district court bind the Secretary to the parties' agreement to resolve the summary judgment motion before any other matter, including the motion to dismiss, noting that the Secretary had agreed to the stipulation, and would not "suffer any manifest injustice from having the summary judgment motion decided first." Coors Brewing Co. v. Mendez-Torres, 787 F. Supp. 2d 149, 186 (D.P.R. 2011). The magistrate judge examined the merits of Coors's summary judgment challenge to the excise tax first, and recommended the motion be denied. Id. at 194. Then, turning to the motion to dismiss, the magistrate judge applied Levin and recommended the suit be dismissed. Id. at 198. -13-  On February 17, 2011, having lost both on its motion for summary judgment and on the Secretary's motion to dismiss, Coors filed its objections to the report and recommendation. On March 7, 2011, the Secretary filed a lengthy response to Coors's objections, reasserting his comity claims under Levin and arguing that the stipulation agreement "did not require or constitute[] a waiver of the Secretary's arguments for dismissal on comity grounds" and should not be construed as a voluntary submission to federal jurisdiction. On March 30, 2011, the district court issued an opinion and order adopting the magistrate's report and recommendation. Coors Brewing Co. v. Mendez-Torres, 787 F. Supp. 2d at 177. The court found that the Secretary had failed to "set forth any showing of good cause" as to why the stipulation agreement should be set aside, and addressed and denied Coors's summary judgment motion. Id. at 165, 173. It then granted the Secretary's motion to dismiss on grounds of comity. Id. at 177. Coors has appealed from both the dismissal and the denial of summary judgment. II. We review de novo the district court's grant of the Secretary's motion to dismiss. Fothergill v. United States, 566 F.3d 248, 251 (1st Cir. 2009). In Levin, the Supreme Court expressly abrogated this court's decision in Coors Brewing Co. The Court held that in the -14- state taxation context, the comity doctrine is "[m]ore embracive than" the TIA and "restrains federal courts from entertaining claims for relief that risk disrupting state tax administration." 130 S. Ct. at 2328. The Court explained that Hibbs had not changed the basic principle that comity, a non-merits ground for dismissal, "counsels lower federal courts to resist engagement in certain cases falling within their jurisdiction."5 Id. at 2330. Thus, even if the TIA does not bar federal court jurisdiction in certain classes of state tax challenges, comity may require dismissal nonetheless. As a general matter, comity constrains the exercise of federal jurisdiction in cases implicating a variety of important state interests. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716-17 (1996). This includes cases that would interfere with a state criminal proceeding, see, e.g., Younger v. Harris, 401 U.S. 37 (1971), or with certain types of state civil proceedings, see, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); cf. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976); cases in which a determination of the federal constitutional issue 5 In Hibbs, the Court held that neither the TIA nor comity posed a hurdle to reaching the merits of the plaintiffs' tax administration challenge in that case. However, in Levin v. Commerce Energy, Inc., the Court distinguished Hibbs on its facts, noting in particular that Hibbs had involved an Establishment Clause challenge. 130 S. Ct. 2323, 2335-36 (2010). Specifically, the Levin Court stated that "[a] confluence of factors . . . , absent in Hibbs, leads us to conclude that the comity doctrine controls [in the present case]." Id. at 2336. -15- might be made unnecessary by a state court interpretation of ambiguous state law, see R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941); cases in which federal adjudication could interfere with a complex state administrative scheme, of which state judicial review is an integral part, see Burford v. Sun Oil Co., 319 U.S. 315 (1943); cases that implicate an important "sovereign prerogative" and in which the state's law is unclear, see La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959); and cases in which the federal courts might unduly interfere with state tax administration, see Fair Assessment in Real Estate Ass'n v. McNary, 454 U.S. 100 (1981). Levin made clear that the rule of comity carries "particular force" in this last context, where taxpayers file suit in federal court under either dormant Commerce Clause or Equal Protection theories, alleging that the state has singled them out for discriminatory treatment by taxing them unevenly in comparison to their competitors. Levin, 130 S. Ct. at 2330. There are several reasons for this strict rule. For one, "in taxation, even more than in other fields, legislatures possess the greatest freedom in classification." Id. at 2333 (quoting Madden v. Kentucky, 309 U.S. 83, 88 (1940)) (internal quotation marks omitted). Even "upon finding impermissible discrimination in a State's allocation of benefits or burdens," it is the Supreme Court's usual practice to remand the case to the state court, -16- "leaving the remedial choice in the hands of state authorities." Id. at 2333-34. This "leaves the interim solution in state-court hands, subject to subsequent definitive disposition by the State's legislature." Id. at 2334. By contrast, if the lower federal courts were to find a state tax system unconstitutional, they "lack authority to remand to the state court system [any] action initiated in federal court," and they are severely constrained in their choice of remedies. Id. Further, federal judges are bound by the TIA and Butler Act, which preclude the diminishment of state revenues, even if that relief is the least disruptive of the state legislature's design. Id. Finally, state courts have the ability to construe narrowly, where necessary, state statutory language so as to alleviate constitutional concerns. Id. at 2334 n.7. "These limitations on the remedial competence of lower federal courts counsel that they refrain from taking up cases of this genre, so long as state courts are equipped fairly to adjudicate them." Id. at 2334. The Levin Court discussed three factors which led it to conclude that comity required dismissal. Id. at 2336. First, it held that "respondents seek federal-court review of commercial matters over which [the state] enjoys wide regulatory latitude" and that "their suit does not involve any fundamental right or classification" to which heightened judicial scrutiny would attach. Id. Second, the Court found that the plaintiffs sought to enlist -17- the aid of the federal courts "to improve their competitive position." Id. Finally, it held that state courts "are better positioned than their federal counterparts" to fashion a suitable remedy "because they are more familiar with state legislative preferences and because the TIA does not constrain their remedial options." Id.; see also id. at 2334. The Court held that while individually any one of these considerations might not compel dismissal, "in combination" they require it. Id. at 2336. The Court emphasized that none of these factors were present in Hibbs. 130 S. Ct. at 2336. By contrast, all three factors applied in Levin, and all three plainly apply here. First, Coors seeks review of regulatory matters over which Puerto Rico enjoys wide regulatory latitude under the Butler Act, 48 U.S.C. § 872. The Supreme Court has recognized in Levin and numerous other cases that states enjoy wide regulatory latitude over the administration of their tax systems. See Levin, 130 S. Ct. at 2330 n.2 ("The procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers' disputes with tax officials are generally complex and necessarily designed to operate according to established rules. State tax agencies are organized to discharge their responsibilities in accordance with the state procedures. If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into -18- disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law." (citation and internal quotation marks omitted)). Further, Coors's suit does not implicate any fundamental right or classification that would require heightened judicial scrutiny. See id. at 2336. Second, Coors is explicitly seeking to improve its competitive position with respect to Puerto Rico's local brewer, Cervecería India, and has framed its arguments around the competitive advantage that the tax differential bestows on that company. See id. Third, Puerto Rico's courts are better positioned than are the federal courts to address and remedy any potential constitutional violations because they are more familiar with state legislative preferences and less constrained in their remedial options. See id. III. Coors presents three arguments as to why comity does not require dismissal here. Two are derived directly from Levin. First, Coors correctly notes that if a state "voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State's own system." Id. at 2336 (quoting Ohio Bureau of Emp't Servs. v. Hodory, 431 U.S. 471, 480 (1977)) (internal quotation marks omitted). Coors argues that the Secretary voluntarily consented to -19- have this case adjudicated in federal court by his actions and through a combination of waiver and sleeping on his rights. Second, Coors argues that since dismissal on comity grounds is an equitable doctrine, even if the Secretary has not consented to have the case adjudicated in federal court, the unique history and circumstances of this case justify our exercise of equitable discretion to resolve the case on its merits. Finally, Coors points to the condition underlying the comity doctrine itself, recognized in Levin, that there exist "an adequate state-court forum" competent "to hear and decide . . . constitutional claims." Id. at 2330. Coors argues that Puerto Rico does not meet this constitutional floor and will not, in this case, provide an adequate forum for the full and fair resolution of their constitutional claims. We reject each of these arguments for the reasons laid out below. A. Voluntary Consent Coors's voluntary consent argument focuses on the actions and inactions of the Secretary -- what it characterizes as a pattern of failure by the Secretary to preserve and assert his claims -- after this court's remand in Coors Brewing Co. First, Coors argues that the Secretary and Solicitor General of Puerto Rico, at the highest level of tax and legal policymaking, abandoned the comity argument by not seeking certiorari from this court's 2009 decision in Coors Brewing Co. Further, Coors argues that the -20- Secretary should have been aware of and alerted the court to the Supreme Court's November 2, 2009, grant of certiorari in the parallel case of Levin. Coors notes that instead of reserving his rights in light of the grant in Levin, the Secretary filed the stipulation agreement on December 23, 2009, in which he agreed to hold all other pending matters in abeyance until the district court ruled on the summary judgment motion. At no point did the Secretary mention Levin or reserve the comity issue. Not until the Supreme Court had decided the case half a year later did the Secretary finally raise Levin with the district court. Furthermore, Coors stresses that once the magistrate judge recommended that the district court hold the Secretary to the stipulation agreement, and rule on the summary judgment motion before the motion to dismiss, the Secretary did not file any objections to the recommendation in district court and did not cross-appeal the issue to this court. Coors argues that as a result, the Secretary has waived the right to contest the district court's decision to enforce the stipulation agreement. Coors relies on several decisions of this court discussing waiver in this context. See, e.g., Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998) ("[A] party's failure to assert a specific objection to a report and recommendation irretrievably waives any right to review by the district court and the court of appeals."). -21-  It is true that the Secretary could have sought certiorari in Coors Brewing Co. and likely should have kept the district court abreast of the developments in Levin even before the Supreme Court decided that case. However, the Supreme Court has made it clear that the rule of consent is a strict one: a state must "expressly urge [the federal court] to proceed to an adjudication of the constitutional merits." Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619, 626 (1986). This rule precludes a finding of voluntary consent to federal jurisdiction in this case. While we have found no "consent" case involving challenges to state tax laws, cases from other contexts help provide guidance. In Dayton Christian Schools, on facts similar to those here, the Court held that the district court should have abstained, under Younger, from deciding the case. Although the State had urged abstention in the district court and on appeal, the plaintiff in that case argued that the state nonetheless had waived its abstention claim because it had stipulated to the district court's jurisdiction. Dayton Christian Sch., 477 U.S. at 626. The Supreme Court rejected this argument as "misconceiv[ing] the nature of Younger abstention," which "does not arise from lack of jurisdiction in the District Court, but from strong policies counseling against the exercise of such jurisdiction where particular kinds of state proceedings have already been commenced." Id. -22-  The Dayton Christian Schools Court contrasted the facts of that case with those in other earlier cases in which states had expressly urged the federal courts to resolve their cases on the merits. Id. For example, in Ohio Bureau of Employment Services, the state did not request Younger abstention in the Supreme Court and the Court considered the issue at the request of an amicus curiae. 431 U.S. at 480. The state had argued Younger abstention to the district court, which had ruled against it, but at the Supreme Court, the state opposed remand based on abstention. Id. The Court noted that where the state opposed abstention6 and specifically asked for a decision on the merits, the Younger doctrine did not require dismissal. Id. Here, by contrast, the state has requested dismissal based on comity both in this court and the district court. Similarly, in Brown v. Hotel & Restaurant Employees & Bartenders International Union Local 54, 468 U.S. 491 (1984), although the state had argued for Younger abstention below, it did not press that claim at the Supreme Court but instead expressly submitted to the jurisdiction of the Supreme Court "in order to obtain a more expeditious and final resolution of the merits of the constitutional issue," id. at 500 n.9. And in Sosna v. Iowa, 419 6 The Court noted that one reason the state might have chosen to forego abstention was to avoid the "prospect of lengthy administrative appeals followed by equally protracted state judicial proceedings." Ohio Bureau of Emp't Servs. v. Hodory, 431 U.S. 471, 480 (1977). -23- U.S. 393 (1975), both parties addressed the question of Younger abstention, and "urged that [the Court] reach the merits" of the case, id. at 396 n.3. Here, the Secretary's mere stipulation to a priority decision on summary judgment (and, implicitly, to the retention of federal jurisdiction), does not constitute the "express urg[ing]" necessary for voluntary consent. While the Secretary did agree to "hold all other proceedings in abeyance" until the district court ruled on the summary judgment motion, he entered into that agreement only after this court specifically rejected his comity argument. And while it is true that the petition for certiorari had been granted in Levin at the time he entered into the agreement, the case had not yet been decided.7 Coors also argues that the Secretary waived any objections to the enforcement of the stipulation agreement by not objecting to the report and recommendation in the proper time frame. But the Secretary had prevailed on the merits on both issues: the magistrate judge recommended the denial of Coors's motion for summary judgment and the grant of the motion to dismiss. 7 In addition, the Secretary's decision not to seek certiorari in Coors Brewing Co. did not amount to consent to the exercise of federal jurisdiction and certainly did not amount to consent to forgo the benefit of a later Supreme Court decision expressly abrogating Coors Brewing Co. The reality is that the public law offices of state attorneys and solicitors general have limited resources and must choose how best to deploy them. -24- The Secretary wanted an affirmance, so he instead filed a lengthy response to Coors's objections to the report and recommendation. That the Secretary did not consent to the exercise of jurisdiction was made plain in this response, in which he reiterated that he did not consent to the federal forum and argued that the stipulation agreement should not be construed as such. Indeed, he argued, his compliance with court orders "while forced to litigate against his will in [the federal] forum can hardly be construed as a waiver of [his] prior request for dismissal, or as a voluntary submission to the federal forum." He also argued, once Levin was decided, that the district court was obligated to consider his motion to dismiss on comity grounds before considering the merits of Coors's constitutional claims on summary judgment. We agree.8 From the outset of this litigation, the Secretary has claimed the protection of comity. Once the Supreme Court abrogated this court's decision in Coors Brewing Co., he notified the district court within a month and sought immediate dismissal on grounds of comity. In summary, none of his actions in this case 8 Normally, of course, a court must address jurisdiction before it addresses the merits of plaintiff's claims. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). The question here is not one of Article III jurisdiction but whether the federal court was required to refrain from exercising jurisdiction. Here, the Levin decision was an intervening event which should have been given preference and priority. The district court was incorrect, in light of Levin, to address the merits of Coors's claims before dismissing on grounds of comity. -25- amounted to voluntary consent, as the Supreme Court has defined that term, and, under the circumstances of the case, he has preserved his comity claim. B. Equitable Conduct Coors argues that even so, the Secretary's conduct as described above, combined with what Coors alleges to be a strategy of "keep away," played by the Commonwealth these last thirty-five years to forestall federal adjudication of the dormant Commerce Clause question, justify setting aside comity in this instance. It is far from clear that Levin permits us to retain jurisdiction over this case on Coors's argument that it would be more equitable to do so given the Commonwealth's conduct. We need not decide this abstract issue, however, because the argument fails on its own terms. We have already addressed and rejected most of the substantive arguments advanced by Coors in support of our retaining jurisdiction. These "equitable conduct" arguments are the same arguments raised under Coors's voluntary consent theory, and merely relabeling the arguments does nothing to advance them. Coors's remaining arguments do not support our retaining jurisdiction even if we had the power to do so. Coors argues that once the Secretary had "finally agreed[]" to the resolution of the summary judgment motion, and after Coors had "fully performed its obligations under [that] agreement and acted in reliance upon it," the Secretary sought to -26- renege on the agreement by requesting additional discovery "on immaterial and irrelevant matters" and by reopening the comity question. At this late stage of the litigation, Coors argues that forcing it to file a new suit in the courts of Puerto Rico would "impose an 'unusual hardship'" on it and require "'an unnecessary expenditure of time or energy.'" (quoting Rosewell v. LaSalle Nat'l Bank, 450 U.S. 503, 518 (1981)). Coors notes that it first filed this case in federal district court five years ago and has "expended significant time and costs in" its prosecution. Since comity is an "equitable" doctrine, Fair Assessment in Real Estate Ass'n, 454 U.S. at 116 n.8, Coors argues that the balance of equitable considerations in this case justifies providing it with a federal forum for resolution of its constitutional claims. Even if the equitable discretion described by Coors existed in these types of cases, this would not be an instance where we would retain jurisdiction. The Secretary's conduct in this case, including as to discovery and the stipulations, was not inequitable and in any event carries little weight when compared to the institutional rationales for comity here. Comity is a doctrine of "equitable restraint," id. at 108 (emphasis added), and operates to "stay [the] hand" of the federal courts when state-law remedies are "plain, adequate, and complete," id. The balance in favor of restraint arises here in the state taxation context: "comity . . . counsel[s] that [federal] courts should adopt a hands-off approach -27- with respect to state tax administration." Nat'l Private Truck Council, Inc. v. Okla. Tax Comm'n, 515 U.S. 582, 586 (1995); see also Fair Assessment in Real Estate Ass'n, 454 U.S. at 108 ("The reason for this guiding principle [of equitable restraint] is of peculiar force in cases where the suit, like the present one, is brought to enjoin the collection of a state tax in courts of a different, though paramount sovereignty." (alteration in original) (quoting Matthews v. Rodgers, 284 U.S. 521, 525 (1932))). Whether or not inequitable conduct by a party could ever overcome these concerns, the equities in this case weigh more heavily on the side of "aversion to federal interference with state tax administration." Nat'l Private Truck Council, 515 U.S. at 586. C. Whether the Puerto Rico Courts Meet the Adequate State-Court Forum Test Coors's final argument is that dismissal on comity grounds would be improper because the Puerto Rico court system will not provide "an adequate state-court forum" to hear and decide the merits of the federal constitutional claims. In Fair Assessment in Real Estate Ass'n, the Court explained that under the doctrine of comity, federal courts must refrain from deciding state tax matters "when remedies at law are plain, adequate, and complete," 454 U.S. at 108, and "where [federal rights] could otherwise be preserved unimpaired," id. at 109 (quoting Boise Artesian Hot & Cold Water Co. v. Boise City, 213 U.S. 276, 282 (1909)) (internal quotation marks omitted). -28-  Coors argues the Puerto Rico forum is stacked against it: the courts all but certainly will "woodenly" reject its constitutional challenge to the tax. Moreover, in the past, Coors alleges, Puerto Rico's courts have exempted Puerto Rico from the reach of the dormant Commerce Clause entirely and will continue to do so here. Finally, Coors contends that the Puerto Rico courts impermissibly refuse to consider legislative history in determining whether a law has a constitutionally discriminatory purpose and in doing so here, will hinder Coors's ability to present its claims. See, e.g., Family Winemakers of Cal. v. Jenkins, 592 F.3d 1, 13 (1st Cir. 2010) ("[W]hen a state statute is allegedly motivated by an intent to discriminate against interstate commerce," to determine legislative purpose, "we look to 'the statute as a whole,' including statutory text, context, and legislative history, . . . [as well as] whether the statute was 'closely tailored to achieve the legislative purpose' the state asserted" (quoting Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 37-38 (1st Cir. 2005))); see also id. at 13 n.15 (describing methodologies employed by other courts of appeal). -29-  As to legislative history,9 Coors attempts to rely on the case of Chévere v. Levis, 150 P.R. Dec. 525 (2000). The Puerto Rico Supreme Court there, however, expressly reviewed the legislative history of the law in question to determine legislative intent and stated: [I]n the process of inquiry into the legislature's intent, it is necessary to examine the legislative history. If the law has a statement of purpose, it generally summarizes the purpose that inspired its creation. In cases in which the law lacks a statement of purpose or, even though it has one, the statement does not contain the legislative intent, it is useful to consult other documents such as the reports from the committees that studied the bill and the debates held when the measure was discussed on the floor of the legislative chamber, as appears in the Record of Proceedings. Likewise, the preliminary drafts and reports surrounding them, which are prepared outside the Legislative Assembly, may be used, when the Assembly had the same before it and substantially adopted the preliminary drafts. Id. at 540-41 (translation available on Ct. App. Dkt. No. 11-1559). We reject Coors's contention that the Puerto Rico courts will impermissibly refuse to consider legislative history in 9 The Secretary argues that this is really a dispute about which portions of the legislative history are to be given weight. He cites to F. Vázquez, Inc. v. Sec'y of the Treasury, 103 P.R. Dec. 388, 3 P.R. Offic. Trans. 539 (1975), in which the Puerto Rico Supreme Court stated that, "statements of a lawmaker, on the floor of the legislative body to which he belongs do not represent the collective intent of the body enacting the statute." Id. at 390. The Secretary argues that the Puerto Rico courts do review legislative history and are capable of conducting a comprehensive, "pithy" and "in-depth" review of the applicability of the dormant Commerce Clause. (quoting Coors Brewing Co. v. Mendez-Torres, 787 F. Supp. 2d 149, 197 (D.P.R. 2011)). -30- considering Coors's claims. Nothing in Chévere suggests that the courts, as a rule, will refuse to consider the legislative history in ascertaining the purpose of the excise tax. Coors also argues that the Puerto Rico courts have refused to hold that the dormant Commerce Clause applies to the Commonwealth, pointing to the concurring opinion of a single justice in a 2007 case. See Puerto Rican Ass'n of Beer Imps. v. Puerto Rico, 171 P.R. Dec. 140 (2007) (Fuster, J., concurring in the judgment) (stating that the dormant aspect of the Commerce Clause of the U.S. Constitution does not apply to Puerto Rico) (translation available on Ct. App. Dkt. No. 11-1559). However, in a more recent opinion the Puerto Rico Supreme Court clearly held that the "limitations inherent in the interstate Commerce Clause in its dormant state apply to Puerto Rico ex proprio vigore." Estado Libre Asociado de P.R. v. Nw. Selecta, Inc., 2012 WL 1109131, 2012 TSPR 56, at *31 (P.R. Mar. 27, 2012). This opinion also reinforces the rule articulated in Chévere as to when resort to legislative history is appropriate. Finally, the fact that the Puerto Rico courts ruled against large brewers in earlier cases simply does not meet the test for inadequacy. This court recently rejected a similar inadequacy challenge brought by cigar manufacturers against a Puerto Rico excise tax which allegedly discriminated against mainland cigar manufacturers. Pleasures of San Patricio, 596 F.3d -31- 1. We held that the cigar manufacturers could not demonstrate the inadequacy of the Puerto Rico courts merely by predicting that they would lose their case. Id. at 9. We reject Coors's inadequacy argument. Should Coors receive an unfavorable merits ruling from the Puerto Rico courts, it may seek further review of "[a]ny substantial federal question" in the U.S. Supreme Court. Levin, 130 S. Ct. at 2334 n.8 (citing McNeese v. Bd. of Educ. for Cmty. Unit Sch. Dist. 187, 373 U.S. 668, 673 (1963)). In addition, should the Puerto Rico courts, as Coors fears, fail to follow federal constitutional precedent or unconstitutionally constrain their analyses, that, in and of itself, may constitute grounds for a petition for certiorari in the U.S. Supreme Court.10 10 The Supreme Court has addressed similar challenges under what is known as the "fair support rule." Where a state court engages in "an obvious subterfuge to evade consideration of a federal issue," Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 129 (1945), the Supreme Court may look beyond an asserted state law rationale to inquire whether the state court decision rests upon a "fair or substantial basis," Broad River Power Co. v. South Carolina ex rel. Daniel, 281 U.S. 537, 540 (1930); see, e.g., Howlett v. Rose, 496 U.S. 356, 366 (1990); Staub v. City of Baxley, 355 U.S. 313, 318-319 (1958). The Court has deployed this rule in the context of dormant Commerce Clause challenges to state taxation schemes, see, e.g., Union Pac. R.R. Co. v. Pub. Serv. Comm'n, 248 U.S. 67, 69-70 (1918); Gaar, Scott & Co. v. Shannon, 223 U.S. 468, 470 (1912), and where other state laws have been found to unconstitutionally restrain interstate commerce, see, e.g., Davis v. Wechsler, 263 U.S. 22, 24 (1923); Am. Ry. Express Co. v. Levee, 263 U.S. 19, 21 (1923); Sioux Remedy Co. v. Cope, 235 U.S. 197, 203-04 (1914); Vandalia R.R. Co. v. Indiana ex rel. City of South Bend, 207 U.S. 359, 367 (1907). -32-  IV. Because Levin applies and requires dismissal of this federal case in favor of resolution of Coors's claims in the courts of Puerto Rico, we affirm the district court's grant of the Secretary's motion to dismiss and vacate the court's denial of Coors's motion for summary judgment. So ordered. -33- 

29 F.3d 191 74 A.F.T.R.2d 94-5928, 94-2 USTC P 50,400 UNITED STATES of America, Plaintiff-Appellee,v.Charles T. WICKERSHAM, Defendant-Appellant. No. 93-5009. United States Court of Appeals,Fifth Circuit. Aug. 5, 1994. Richard B. Kuniansky, Thano Dameris, Houston, TX, for appellant. Paul E. Naman, Bob Worthman, U.S. Atty., Beaumont, TX, for appellee. Appeal from the United States District Court for the Eastern District of Texas. Before WISDOM, DAVIS and DUHE, Circuit Judges. PER CURIAM: 1 Charles T. Wickersham appeals his conviction of making a false statement on his tax return. Finding no error, we affirm. I. 2 Wickersham purchased a grain elevator for $100,000 in March, 1989. Two weeks later, a commissioner on the Orange County Port and Navigation District (OCPND) suggested that the OCPND should purchase the elevator. The OCPND was interested in acquiring a "bagging facility," a facility capable of bagging grain for overseas shipment by cargo vessels. The Board authorized Commissioner Frederick to begin negotiations with Wickersham to purchase the elevator. A OCPND attorney wrote an opinion letter indicating that the OCPND had the authority to acquire such a facility through purchase, lease or condemnation and reviewed this authority with the Board. 3 At the end of July, Wickersham contacted his accountant and told him that an Orange County agency was interested in acquiring the grain elevator. Wickersham advised his accountant that he was interested in purchasing some other property in the county. The accountant suggested that both transactions could be accomplished in a "like-kind exchange" which would defer the recognition of taxes on the gain realized. Wickersham attempted to negotiate a "like-kind exchange" involving the grain elevator and a shopping center owned by a third party, but the third party ultimately refused to agree to it. 4 On July 31, the OCPND voted to purchase Wickersham's elevator for $450,000. Shortly after the OCPND agreed to purchase the grain elevator, Wickersham's attorney informed the OCPND attorney that Wickersham needed a letter of condemnation. Although the OCPND did not use condemnation, Commissioner Frederick told the OCPND attorney that he had threatened to use condemnation during negotiations. The OCPND's attorney faxed Wickersham's tax attorney a letter stating that Frederick had used the threat of condemnation during negotiations even though the attorney only remembered condemnation being discussed during a Board meeting as an option, not that Frederick had actually used the threat of condemnation in order to make the purchase. 5 Wickersham's 1989 tax return indicated that he had sold the grain elevator under threat of condemnation for $450,000. The IRS contends that there was no threat of condemnation, and that Wickersham owes $98,000 in taxes on the capital gain of $350,000 he made as a result of the sale. 6 Wickersham, Commissioner Frederick and Commissioner Winfree were charged with conspiracy to defraud the OCPND by selling a grain elevator to them at an inflated price. Wickersham was also charged with making a false statement on his tax return, namely that the grain elevator was sold under threat of condemnation. The jury convicted Wickersham on the tax fraud count and acquitted him on all other charges. Wickersham raises a number of issues on appeal which we discuss below. II. 7 Wickersham first argues that the evidence was insufficient to support his conviction. In reviewing the sufficiency of the evidence, this court determines whether, viewing the evidence in favor of the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt. U.S. v. Sparks, 2 F.3d 574, 579 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 720, 126 L.Ed.2d 684 (1994). 8 The jury convicted Wickersham of filing a false tax return in violation of 26 U.S.C. Sec. 7206(1). To convict, the government must show that the defendant willfully made a false statement on his return. U.S. v. Robinson, 974 F.2d 575, 579 (5th Cir.1992). 9 Under 26 U.S.C. Sec. 1033, the gain realized on the sale of property under the threat of condemnation is not recognized under the Internal Revenue Code, provided replacement property is purchased within the statutory period.1 Wickersham argues that he did sell the property under a threat of condemnation and was entitled to the tax deferment. 10 The evidence established that Commissioner Frederick was notified of his right to threaten condemnation and told the OCPND attorney that he had threatened condemnation. But the jury was entitled to conclude that there was no genuine threat, but, instead, a subterfuge to support preferred tax treatment for Wickersham. The jury was entitled to infer from the evidence that Wickersham, Frederick and Winfree were acting together to defraud the OCPND by selling the elevator at an exorbitantly inflated price. Wickersham bought the elevator for only $100,000 in March and sold it for $450,000 in July. Wickersham and Winfree were business partners in a business venture, in which Wickersham had provided a $75,000 letter of credit on Winfree's behalf, and Winfree had once owned the elevator and had sold it for only $85,000. The government produced evidence that Winfree, while technically recusing himself from the purchase of the grain elevator, used his influence to persuade the commissioners to buy it from Wickersham, for the inflated price. Moreover, Wickersham did not ask for the letter of condemnation until after he was unable to do a like-kind exchange and after the Board had already voted to purchase the elevator. 11 The evidence was sufficient to support the conviction. It was not unreasonable for the jury to determine that Wickersham knew that condemnation had never been threatened and that he knew his statement to the contrary was false. III. 12 Wickersham next argues that the court erred in barring admission of evidence of prosecutorial misconduct. Wickersham contends that he should have been allowed to elicit the testimony of Wayne Peveto and Joseph Alford, Winfree's defense attorneys, regarding a meeting they had with U.S. Attorney Smith. Wickersham alleges that at this meeting, Smith told Peveto and Alford that unless Frederick changed his grand jury testimony and testified that he did not mention the authority to condemn to Wickersham, that he would be indicted. 13 Wickersham argues that the exclusion of evidence violates his due process and the compulsory process clause. He relies on U.S. v. Heller, 830 F.2d 150 (11th Cir.1987), in which the court reversed a conviction because the defendant was not allowed to present evidence that the prosecutor had intimidated a defense witness into providing testimony against the defendant. 14 In the case at bar, however, the court held an evidentiary hearing and determined, as a matter of law, that there was no prosecutorial misconduct. The court found that the prosecutors had merely suggested that if Frederick had lied to the grand jury, he should tell the truth. The court refused to allow Wickersham to elicit the testimony because it was not proper to allow a co-defendant's attorney to testify and because the evidence was not relevant. 15 Wickersham does not present any evidence that Frederick actually was intimidated into changing his grand jury testimony. Nor is there evidence that other witnesses were intimidated. The district court did not abuse its discretion in refusing to admit this evidence. IV. 16 Wickersham next argues that the district court erred in giving a modified "Allen" charge to the jury. We review the modified "Allen" charge for abuse of discretion. U.S. v. Lindell, 881 F.2d 1313 (5th Cir.1989), cert. denied, 496 U.S. 926, 110 S.Ct. 2621, 110 L.Ed.2d 642 (1990). 17 The modified "Allen" charge given by the district court comports with the modified "Allen" charge approved in Lindell. The court did not abuse its discretion. V. 18 Wickersham argues next that the court should have ordered a new trial because the jurors were improperly affected by the "Allen" charge. After the verdict was rendered, Wickersham's attorney received an unsolicited phone call from a juror who said that she hoped they appealed the case because the defendant was not guilty and that she and several other jurors changed their verdict after receiving the "Allen" charge. 19 Federal Rule of Evidence 606(b) prohibits the use of juror's statements to impeach the verdict. Rule 606(b) has consistently been used to bar testimony when the jury misunderstood instructions. Farmers Coop. Elev. Ass'n v. Strand, 382 F.2d 224, 230 (8th Cir.) (testimony to misinterpretation of instructions inadmissible), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967); U.S. v. Chereton, 309 F.2d 197, 200-01 (6th Cir.1962) (disallowing testimony to mistakes made by jury in interpreting charge), cert. denied, 372 U.S. 936, 83 S.Ct. 883, 9 L.Ed.2d 767 (1963). Therefore, the court did not err in refusing to allow jury testimony to impeach the verdict. VI. 20 Finally, Wickersham argues that the indictment was defective because it did not state the year of the return. U.S. v. Boulet, 577 F.2d 1165, 1167-68 (5th Cir.1978) (because tax system is on an annual basis, indictment for failure to file tax return must charge an offense for a specific year), cert. denied, 439 U.S. 1114, 99 S.Ct. 1017, 59 L.Ed.2d 72 (1979). However, the indictment here was for making a false statement on a return, rather than failing to file a return. The indictment did cite the date the false return was filed. Furthermore, Wickersham was provided a copy of the tax return. The indictment was not defective. 21 In any case, objections to the indictment are generally waived if not made before trial. U.S. v. Campos-Asencio, 822 F.2d 506 (5th Cir.1987). Wickersham did not object to the indictment before trial and has shown absolutely no prejudice based on the Government's failure to allege the date of the return in the indictment. 22 AFFIRMED. 1 The purchase of replacement property within the statutory period was uncontested

968 F.2d 1211 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Lorene H. BOSTIC, Plaintiff-Appellant,v.RUSSELL COUNTY SCHOOL BOARD; Roger L. Taylor, Individuallyand as principal of Lebanon Elementary School; G. B. Meade,Individually and as Vice-Chairman of the Russell CountySchool Board; Larry A. Massie, Individually and as DivisionSuperintendent of Russell County Public Schools; MilesHillman, Individually and as a member of the Russell CountySchool Board; Charlie L. Collins, Individually and asprincipal of Clinch River Elementary School; Linda G.Tiller, Individually and as Chairman of the Russell CountySchool Board; Roger D. Sward, Individually and as a memberof the Russell County School Board; John H. Smith,Individually and as a member of the Russell County SchoolBoard; Sammy Lou Rasnake, Individually and as a member ofthe Russell County School Board, Defendants-Appellees. No. 91-1644. United States Court of Appeals,Fourth Circuit. rgued: February 3, 1992Decided: July 24, 1992 Argued: Hope Dene, Dene & Dene, Abingdon, Virginia, for Appellant. Scott Sanford Cairns, McGuire, Woods, Battle & Boothe, Richmond, Virginia, for Appellees. Before PHILLIPS and MURNAGHAN, Circuit Judges, and OSTEEN, United States District Judge for the Middle District of North Carolina, sitting by designation. PER CURIAM: OPINION 1 This is an appeal by Lorene H. Bostic from the district court's order granting a directed verdict to the Russell County School Board at the conclusion of the Plaintiff's evidence. The issues stem from the Board's decision to transfer Ms. Bostic to a comparable teaching position in another school. We agree with the decision of the district court as to all of Ms. Bostic's claims and therefore affirm. 2 Ms. Bostic was a teacher at Lebanon Elementary School in the Russell County School System. On May 20, 1988, the school was conducting the second of two local education association elections. Ms. Bundy, a third-grade teacher in charge of distributing the ballots, asked a student to deliver a ballot to Ms. Bostic. Ms. Bostic, upset that no envelope accompanied the ballot, entered Ms. Bundy's classroom, threw her ballot on Ms. Bundy's desk, and stated that she could not vote due to the envelope's absence. Ms. Bostic then engaged in a "discussion" with Ms. Bundy which left Ms. Bundy in tears in front of her class. 3 On July 12, 1988, School Superintendent Larry Massie recommended that the School Board transfer Ms. Bostic to another school. Ms. Bostic knew that her possible transfer was to be discussed at the Board meeting on that day, but she chose not to attend. The Board elected to transfer Ms. Bostic to Clinch River Elementary School. At that same meeting, the Board decided to transfer many other employees. 4 Working at Clinch River would require Ms. Bostic to travel via a winding mountainous road. Ms. Bostic refused to accept this position and she resigned as of August 1, 1990. 5 Seven months prior to the May 1988 incident in litigation here, Ms. Bostic had filed a grievance against the school's principal, Mr. Taylor. At some point prior to May, she also had been summoned to appear before a fact-finding panel concerning another teacher's conduct, but was not called to testify. Ms. Bostic asserted that she was threatened by her superiors subsequent to these occurrences. 6 Ms. Bostic's complaint against the Board alleged violations of the Age Discrimination Act, the First and Fourteenth Amendments, intentional infliction of emotional distress, and breach of contract. The crux of her complaint was that she had been constructively discharged because the Board knew she was too old to make the longer and more difficult drive to Clinch River. Before trial, Ms. Bostic voluntarily dismissed the age discrimination claim. At trial she maintained, for the first time, that she was constructively discharged because the Board knew her driving phobia would prevent her from negotiating the route to Clinch River. 7 A directed verdict is appropriate where there is no substantial evidence in dispute and, without weighing the credibility of the witnesses, the party with the burden of proof has failed to make a prima facie case, leaving but one reasonable conclusion as to the proper verdict. Fed. R. Civ. P. 50(a); see also Business Dev. Corp. v. United States, 428 F.2d 451, 453 (4th Cir. 1970), cert. denied, 400 U.S. 957 (1970). 8 Ms. Bostic's first argument on appeal is that the trial court erred in failing to find sufficient evidence to send the constructive discharge claim to the jury. Our court has held that a constructive discharge occurs when "an employer deliberately makes an employee's working conditions intolerable and thereby forces him to quit his job." Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), cert. denied, 475 U.S. 1082 (1986). To prevail, Ms. Bostic must demonstrate that the Board intended to force her to quit her position. See id. The trial court correctly found there was insufficient evidence that the Board members knew of Bostic's phobia and intended her transfer as a means of forcing her to resign.1 9 Ms. Bostic contests the trial court's grant of a directed verdict to her due process claim. We have previously held that in order to establish a due process action, either substantive or procedural, a plaintiff must demonstrate that she has a protected liberty or property interest and that she has been deprived of such interest by state action. See Stone v. University of Maryland Medical System Corp., 855 F.2d 167, 172 (4th Cir. 1988). While Ms. Bostic had a property interest in her job, a transfer at the same salary does not comprise a constitutional violation absent proof of constructive discharge. See Huang v. University of North Carolina, 902 F.2d 1134, 1141, (4th Cir. 1990); Stone, 855 F.2d at 173.2 Since Ms. Bostic did not successfully show that she was constructively discharged, she fails to demonstrate a due process violation.3 10 Ms. Bostic's third basis for appeal involves the trial court's decision to disallow her First Amendment claims from going before the jury. Ms. Bostic asserts that the Board's decision to transfer her was in retaliation for three instances of protected First Amendment speech. They were her appearance at a panel hearing regarding a coworker, her filing of a grievance against Mr. Taylor, and the classroom disturbance. 11 In order to prove a First Amendment infringement, Ms. Bostic must show: a) that the expressions alleged to have provoked the retaliatory action relate to matters of public concern; b) that the alleged retaliation deprived her of some valuable benefit; and c) that but for the protected expression, the employer would not have taken the alleged retaliation. Huang, 902 F.2d at 1140. 12 The first two instances of her alleged protected speech may be matters of public concern. However, there is no evidence that either of these incidents was the "but for" cause of Ms. Bostic's transfer. In fact, the transfer occurred a full year after Ms. Bostic filed her grievance. 13 As for the classroom incident, even if we should find that Ms. Bostic's concern over voting procedures constitutes a matter of public concern, we have held that First Amendment protection attaches only if the employee's interest in the speech outweighs the employer's interest in the "effective and efficient fulfillment of its responsibilities to the public." Huang, 902 F.2d at 1140 (quoting Connick v. Myers, 461 U.S. 138, 150 (1983)). Assuming the Board transferred Ms. Bostic because of this incident, it did not violate her First Amendment rights. The Board's interest in maintaining the dignity and efficiency of its classrooms prevails over Ms. Bostic's interest in promoting voting propriety in front of a third-grade class. 14 Ms. Bostic further contends that the trial court erred in directing a verdict for the defendants regarding Ms. Bostic's allegations of breach of contract. Ms. Bostic's contract specifically provided that the Board could transfer her at any time, and the Virginia courts have recognized that a school board can reassign a teacher provided that the teacher's salary remains the same. See Tazewell County School Bd. v. Gillenwater, 400 S.E.2d 199, 200 (Va. 1991). Ms. Bostic concedes that her transfer to Clinch River would not have involved a loss of pay or seniority. Therefore, the trial court acted correctly in refusing to submit this claim to a jury. 15 Ms. Bostic's final cause of action is her claim for intentional infliction of emotional distress. The trial court properly found that Ms. Bostic did not provide sufficient evidence to show that the Board's actions were so outrageous and severe as "to be regarded as atrocious, and utterly intolerable in a civilized community." Russo v. White, 400 S.E.2d 160, 162 (Va. 1991). Accordingly, the judgment is 16 AFFIRMED. 1 Because we agree with the trial court's finding as to the absence of intent, we elect not to consider whether Ms. Bostic also failed to meet the second part of the constructive discharge standard regarding the intolerability of working conditions 2 Additionally, Ms. Bostic had the opportunity to appear and be heard at the Board meeting when her transfer was discussed. She elected not to avail herself of this opportunity 3 The School Board argues that even if the transfer amounted to a constructive discharge and thus were grievable, Ms. Bostic failed to file a grievance within 15 working days of the discharge as required by the School Board and the Virginia Code. Since we agree with the trial court's finding that the Board did not constructively discharge Ms. Bostic, we do not need to consider whether her grievance was timely filed

Filed: July 9, 1998 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 96-2610 CA-93-1064-2-18AJ JEROME M. MYERS; SAMUEL KENNLEY, Plaintiffs - Appellants, and LANTZ H. LITTLE; W. L. PACE; REGINALD A. LEE; JAMES E. YOUNG; ELMER E. MARTIN; UNDRA L. EVERSON; JIMMIE S. TAYLOR; THOMAS O. WILLIAMS; NORMAN ROBERT KNIGHT, III, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee, and PETER CAMPBELL, Claimant. No. 96-2698 CA-93-1914-2-18 ARTHUR PINCKNEY, Plaintiff - Appellant,  and NORMAN WITHERSPOON; THOMAS WILLIAMS; CYNTHIA H. COAXUM; LUCILLE MYERS; NORMAN JAMES WITHERSPOON, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee, and FRANK SIMMONS, JR., Claimant. No. 96-2699 CA-93-3206-2-18AJ ELZINE R. FABERS, Plaintiff - Appellant, and WILLIAM L. DIBBLE; NATHANIEL JUST; JAMES H. MOULTRIE; NATHANIEL JONES; ELDRIDGE C. LEE; ARTHUR L. NESBITT; HENRY L. MOORE, JR., Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee. 2  No. 96-2720 CA-93-2410-2-18AJ DAVID RILEY, Plaintiff - Appellant, and THURMOND HAMMOND; CAROLYN G. CHAVIS; HORACE WILLIAMS; ODIS C. MOORE, JR.; WILLIAM GLOVER, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee. No. 96-2721 CA-93-2410-2-18AJ CAROLYN G. CHAVIS; WILLIAM GLOVER, Plaintiffs - Appellants, and THURMOND HAMMOND; DAVID RILEY; HORACE WILLIAMS; ODIS C. MOORE, JR., Plaintiffs, versus DEPARTMENT OF THE NAVY, 3  Defendant - Appellee. 4  No. 96-2771 CA-93-3293-2-18AJ FRANK REED, Plaintiff - Appellant, and JASPER M. BRYANT; CATHIE M. CRAWFORD; JOHN DINGLE; HARVEY J. DOCTOR; SEAFUS JORDAN; LEROY M. LLOYD; ABRAHAM J. SMALLS; RICHARD A. SPENCER; JOSEPH SWINTON, JR.; VENA L. VAIRD; JAMES L. WASHINGTON, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee. No. 97-1859 CA-93-2410-2-18AJ HORACE WILLIAMS, Plaintiff - Appellant, and THURMOND HAMMOND; CAROLYN G. CHAVIS; DAVID RILEY; ODIS C. MOORE, JR.; WILLIAM L. GLOVER, Plaintiffs, versus 5 DEPARTMENT OF THE NAVY, Defendant - Appellee. No. 97-1860 CA-93-3206-2-18AJ HENRY L. MOORE, JR., Plaintiff - Appellant, and WILLIAM L. DIBBLE; NATHANIEL JUST; JAMES H. MOULTRIE; ELZINE R. FABERS; NATHANIEL JONES; ELDRIDGE C. LEE; ARTHUR L. NESBITT, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee. O R D E R Appellants in the above-styled appeals were not afforded an opportunity to file informal briefs prior to our disposition of their appeals. In order for these Appellants to submit informal briefs for our review before we act on their appeals, we construe their post-decision pro se filings as petitions for rehearing and grant rehearing for the limited purpose of reviewing their informal 6 briefs. We direct that the Clerk’s Office issue an informal briefing order in these appeals directing that these Appellants mail their informal briefs to this Court no later than August 3, 1998. FOR THE COURT /s/ Patricia S. Connor 7  UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 96-2324 NORMAN ROBERT KNIGHT, III, Plaintiff - Appellant, and LANTZ H. LITTLE; W. L. PACE; JEROME M. MYERS; REGINALD A. LEE; JAMES E. YOUNG; ELMER E. MARTIN; UNDRA L. EVERSON; JIMMIE S. TAYLOR; SAMUEL KENNLEY; THOMAS O. WILLIAMS, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee, and PETER CAMPBELL, Claimant. No. 96-2325 JAKE LEE, JR., Plaintiff - Appellant, 8  and PONCE DELEON JONES; JAMES L. CRAWFORD; WILLIAM E. REID, JR.; SHERMAN WESLEY BARCLIFF, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee, and PETER CAMPBELL, Claimant. No. 96-2365 PONCE DELEON JONES, Plaintiff - Appellant, and JAKE LEE, JR.; JAMES L. CRAWFORD; WILLIAM E. REID, JR.; SHERMAN WESLEY BARCLIFF, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee, 9  and PETER CAMPBELL, Claimant. No. 96-2610 JEROME M. MYERS; SAMUEL KENNLEY, Plaintiffs - Appellants, and LANTZ H. LITTLE; W. L. PACE; REGINALD A. LEE; JAMES E. YOUNG; ELMER E. MARTIN; UNDRA L. EVERSON; JIMMIE S. TAYLOR; THOMAS O. WILLIAMS; NORMAN ROBERT KNIGHT, III, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee, and PETER CAMPBELL, Claimant. 10  No. 96-2698 ARTHUR PINCKNEY, Plaintiff - Appellant, and NORMAN WITHERSPOON; THOMAS WILLIAMS; CYNTHIA H. COAXUM; LUCILLE MYERS; NORMAN JAMES WITHERSPOON, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee, and FRANK SIMMONS, JR., Claimant. No. 96-2699 ELZINE R. FABERS, Plaintiff - Appellant, and 11 WILLIAM L. DIBBLE; NATHANIEL JUST; JAMES H. MOULTRIE; NATHANIEL JONES; ELDRIDGE C. LEE; ARTHUR L. NESBITT; HENRY L. MOORE, JR., Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee. No. 96-2700 STANLEY E. SHAW, Plaintiff - Appellant, and JERALD WATSON; ROBERT WATSON; JAMES FRAZIER Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee. No. 96-2720 DAVID RILEY, Plaintiff - Appellant, 12  and THURMOND HAMMOND; CAROLYN G. CHAVIS; HORACE WILLIAMS; ODIS C. MOORE, JR.; WILLIAM GLOVER, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee. No. 96-2721 CAROLYN G. CHAVIS; WILLIAM GLOVER, Plaintiffs - Appellants, and THURMOND HAMMOND; DAVID RILEY; HORACE WILLIAMS; ODIS C. MOORE, JR., Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee. 13  No. 96-2771 FRANK REED, Plaintiff - Appellant, and JASPER M. BRYANT; CATHIE M. CRAWFORD; JOHN DINGLE; HARVEY J. DOCTOR; SEAFUS JORDAN; LEROY M. LLOYD; ABRAHAM J. SMALLS; RICHARD A. SPENCER; JOSEPH SWINTON, JR.; VENA L. VAIRD; JAMES L. WASHINGTON, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee. No. 96-2772 JAMES E. YOUNG, Plaintiff - Appellant, and NORMAN ROBERT KNIGHT, III; LANTZ H. LITTLE; W. L. PACE;JEROME M. MYERS; REGINALD A. LEE; ELMER E. MARTIN; UNDRA L. EVERSON; JIMMIE S. TAYLOR; SAMUEL KENNLEY; THOMAS O. WILLIAMS, Plaintiffs, versus 14 DEPARTMENT OF THE NAVY, Defendant - Appellee, and PETER CAMPBELL, Claimant. No. 97-1768 NORMAN ROBERT KNIGHT, III, Plaintiff - Appellant, and LANTZ H. LITTLE; W. L. PACE; JEROME M. MYERS; REGINALD A. LEE; JAMES E. YOUNG; ELMER E. MARTIN; UNDRA L. EVERSON; JIMMIE S. TAYLOR; SAMUEL KENNLEY; THOMAS O. WILLIAMS, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee, and PETER CAMPBELL, Claimant. 15  No. 97-1857 REGINALD A. LEE, Plaintiff - Appellant, and NORMAN ROBERT KNIGHT, III; LANTZ H. LITTLE; W. L. PACE; JEROME M. MYERS; JAMES E. YOUNG; ELMER E. MARTIN; UNDRA L. EVERSON; JIMMIE S. TAYLOR; SAMUEL KENNLEY; THOMAS O. WILLIAMS, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee, and PETER CAMPBELL, Claimant. No. 97-1858 WILLIAM E. REID, JR., Plaintiff - Appellant, 16  and JAKE LEE, JR.; PONCE DELEON JONES; JAMES L. CRAWFORD; SHERMAN WESLEY BARCLIFF, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee, and PETER CAMPBELL, Claimant. No. 97-1859 HORACE WILLIAMS, Plaintiff - Appellant, and THURMOND HAMMOND; CAROLYN G. CHAVIS; DAVID RILEY; ODIS C. MOORE, JR.; WILLIAM L. GLOVER, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee. 17  No. 97-1860 HENRY L. MOORE, JR., Plaintiff - Appellant, and WILLIAM L. DIBBLE; NATHANIEL JUST; JAMES H. MOULTRIE; ELZINE R. FABERS; NATHANIEL JONES; ELDRIDGE C. LEE; ARTHUR L. NESBITT, Plaintiffs, versus DEPARTMENT OF THE NAVY, Defendant - Appellee. Appeals from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (CA-93-1064-2-18AJ, CA-93-2081-2-18AJ, CA-93-1914-2-18, CA-93-3206- 2-18AJ, CA-94-479-2-18AJ, CA-93-2410-2-18AJ, CA-93-3293-2-18AJ) Submitted: May 19, 1998 Decided: June 3, 1998 Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. 18 Norman Robert Knight, III, Jake Lee, Jr., Ponce DeLeon Jones, Jerome M. Myers, Samuel Kennley, Arthur Pinckney, Elzine R. Fabers, Stanley E. Shaw, David Riley, Carolyn G. Chavis, William L. Glover, Frank Reed, James E. Young, Norman Robert Knight, III, Reginald A. Lee, William E. Reid, Horace Williams, Henry L. Moore, Jr., Appellants Pro Se. John Harris Douglas, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 19 PER CURIAM: This is a consolidated appeal. In case Nos. 96-2324, 96-2325, 96-2365, 96-2610, 96-2698, 96-2699, 96-2700, 96-2720, 96-2721, 96- 2771, and 96-2772, the Appellants appeal the district court's orders granting the Navy summary judgment in their civil action filed under the Privacy Act, see 5 U.S.C. § 552a (1994), and deny- ing their motion styled "Motion for a Status Conference Hearing and Rule 60(b) Errors Correction." In case Nos. 97-1860, 97-1859, 97- 1858, and 97-1857, the Appellants appeal only the denial of the mo- tion styled "Motion for a Status Conference Hearing and Rule 60(b) Errors Correction." Finally, the Appellant in No. 97-1768 appeals the district court's order granting counsel's request to be relieved. We have reviewed the record and the district court's thorough and well-reasoned opinions and find no reversible error. Accordingly, we affirm on the reasoning of the district court. No. 96-2324, Knight v. Department of the Navy, No. CA-93-1064-2-18AJ (D.S.C. Sept. 18, 1996; May 27, 1997); No. 96-2325, Lee v. Depart- ment of the Navy, No. CA-93-2081-2-18AJ (D.S.C. Sept. 18, 1996; May 27, 1997); No. 96-2365, Jones v. Department of the Navy, No. CA-93- 2081-2-18AJ (D.S.C. Sept. 18, 1996; May 27, 1997); No. 96-2610, Myers v. Department of the Navy, No. CA-93-1064-2-18AJ (D.S.C. Sept. 18, 1996; May 27, 1997); No. 96-2698, Pinckney v. Department of the Navy, No. CA-93-1914-2-18 (D.S.C. Sept. 18, 1996; May 27, 1997); No. 96-2699, Fabers v. Department of the Navy, No. CA-93- 3206-2-18AJ (D.S.C. Sept. 18, 1996; May 27, 1997); No. 96-2700, Shaw v. Department of the Navy, No. CA-94-479-2-18AJ (D.S.C. Sept. 20 18, 1996; May 27, 1997); No. 96-2720, Riley v. Department of the Navy, No. CA-93-2410-2-18AJ (D.S.C. Sept. 18, 1996; May 27, 1997); No. 96-2721, Chavis v. Department of the Navy, No. CA-93-2410-2- 18AJ (D.S.C. Sept. 18, 1996; May 27, 1997); No. 96-2771, Reed v. Department of the Navy, No. CA-93-3293-2-18AJ (D.S.C. Sept. 18, 1996; May 27, 1997); No. 96-2772, Young v. Department of the Navy, No. CA-93-1064-2-18AJ (D.S.C. Sept. 18, 1996); No. 97-1768, Knight v. Department of the Navy, No. CA-93-1064-2-18-AJ (D.S.C. May 20, 1997); No. 97-1857, Lee v. Department of the Navy, No. CA-93-1064- 2-18AJ (D.S.C. May 27, 1997); No. 97-1858, Reid v. Department of the Navy, No. CA-93-2081-2-18AJ (D.S.C. May 27, 1997); No. 97-1859, Williams v. Department of the Navy, No. CA-93-2410-2-18AJ (D.S.C. May 27, 1997); No. 97-1860, Moore v. Department of the Navy, No. CA-93-3206-2-18AJ (D.S.C. May 27, 1997). We grant the motions to adopt other Appellants' informal briefs. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 21 

2013 VT 87 State v. Green Mountain Future (2012-072)   2012 VT 87   [Filed 27-Sep-2013]   NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports.  Readers are requested to notify the Reporter of Decisions by email at: [email protected] or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.     2013 VT 87   No. 2012-072   State of Vermont Supreme Court       On Appeal from      v. Superior Court, Washington Unit,   Civil Division     Green Mountain Future September Term, 2012         Geoffrey W. Crawford, J.   William H. Sorrell, Attorney General, and Eve Jacobs-Carnahan and Megan J. Shafritz, Assistant   Attorneys General, Montpelier, for Plaintiff-Appellee/Cross-Appellant.   Joshua R. Diamond of Diamond & Robinson, P.C., Montpelier, and James Lamb of Sandler,   Reiff, Young & Lamb, Washington, DC, for Defendant-Appellant/Cross-Appellee.     PRESENT:   Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Cohen, Supr. J.,                      Specially Assigned   ¶ 1.             DOOLEY, J.   Appellant Green Mountain Future (GMF) appeals the summary judgment decision of the trial court finding that it is a political action committee (PAC) and violated a number of provisions of the Vermont campaign finance laws.  GMF maintains that the trial court erred in not applying a narrowing construction created by the U.S. Supreme Court in the 1976 case of Buckley v. Valeo, 424 U.S. 1 (1976), to the definition of a PAC under Vermont campaign finance laws, and that without that construction the registration and disclosure laws are unconstitutional under the overbreadth doctrine of the First Amendment and the vagueness doctrine of the Fourteenth Amendment.  The State cross-appeals the $10,000 civil penalty assigned by the trial court, asserting that that court abused its discretion by misapplying certain factors and imposing a penalty for only one of GMF’s violations.  We affirm the trial court’s decision on summary judgment and the civil penalty, except that we remand for reconsideration of the penalty for the violation of the identification requirement. ¶ 2.             This case largely turns on the scope and continuing vitality of the “magic words” that GMF argues are required by Buckley v. Valeo.  See infra ¶¶ 25-27.  GMF argues that its advertisements were purely issue advocacy and did not seek to affect the outcome of an election, in this case for Governor of Vermont.  The State argues that GMF’s advertisements were transparently employed to defeat the candidacy of Brian Dubie for Governor—indeed, they could have no other purpose—although they did not state so explicitly.  We hold that the “magic words” are not required to make the applicable campaign finance statute constitutional. ¶ 3.             GMF is an issue advocacy organization registered with the Internal Revenue Service pursuant to 26 U.S.C. § 527 with an address in Barre, Vermont.  Its stated purpose is “to communicate with the citizens of Vermont about economic, environmental, and other issues of importance without expressly advocating the election or defeat of any candidate.”  In September 2010, the month that it was established, it reported contributions of $533,955 and expenditures of $429,186.  The contributions were almost exclusively from the Democratic Governors Association, and the expenditures went mainly towards two television advertisements that were aired a total of over 4000 times in September and October 2010.  Both advertisements focused on the Republican candidate for Governor, and then-Lieutenant Governor, Brian Dubie and his support for the continued operation of the Vermont Yankee Nuclear Power Station.  They included his photograph and concluded with the statements, “Vermont Yankee open another twenty years would be a disaster.  Tell Brian Dubie he’s wrong about Vermont Yankee,” and “Want Vermont Yankee open another twenty years?  Tell Brian Dubie no.”  They were strongly negative in tone, but did not mention the upcoming election for Governor nor Brian Dubie’s candidacy and did not urge voters to vote for a particular candidate in that election. ¶ 4.             17 V.S.A. § 2801(4) defines a “political committee” or “political action committee” (PAC) as an: entity . . . which receives contributions of more than $500.00 and makes expenditures of more than $500.00 in any one calendar year for the purpose of supporting or opposing one or more candidates, influencing an election, or advocating a position on a public question,[1] in any election or affecting the outcome of an election.[2]    ¶ 5.             If an organization is a PAC under this definition, it is then subject to 17 V.S.A. § 2831 (the “registration requirement”), which requires any PAC or party spending more than $500 to register with the Secretary of State within 10 days of having reached the $500 threshold for expenditures, and to 17 V.S.A. § 2811 (the “disclosure requirement”), which requires it to file campaign finance reports on specified dates. ¶ 6.             The other statutory provision in question is 17 V.S.A. § 2892 (the “identification requirement”).  This provision is not limited to any particular type of group, and provides: All electioneering communications shall contain the name and address of the person, political committee, or campaign who or which paid for the communication.  The communication shall clearly designate the name of the candidate, party, or political committee by or on whose behalf the same is published or broadcast.    ¶ 7.             “Electioneering communication” is defined at § 2891 as:   [A]ny communication, including communications published in any newspaper or periodical or broadcast on radio or television or over any public address system, placed on any billboards, outdoor facilities, buttons, or printed material . . . that refers to a clearly identified candidate for office and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office, regardless of whether the communication expressly advocates a vote for or against a candidate.   ¶ 8.             The State filed an action in the trial court requesting a declaration that GMF was in violation of Vermont election laws for: (1) failing to register with the state as a PAC in violation of the registration requirement, 17 V.S.A. § 2831; (2) failing to file reports in violation of the disclosure requirement for PACs, id. § 2811; and (3) failing to include its address in the two television advertisements in violation of the identification requirement, id. § 2892.  The State claimed that GMF was subject to the disclosure and registration requirements because it had received and expended more than $500 in the calendar year “for the purpose of supporting or opposing one or more candidates, or influencing an election.” ¶ 9.             GMF responded that, because its advertisements were pure issue advocacy ads related to nuclear policy, they constituted neither expenditures that triggered PAC status and the registration and disclosure requirements, nor “electioneering communications” that triggered the identification requirement.  GMF further argued that putting its website address on the advertisements satisfied the identification requirement.  It also counterclaimed, under 42 U.S.C. § 1983, making two constitutional arguments: (1) that the First Amendment prohibits state regulation of issue advocacy, and (2) that the registration requirement, its accompanying disclosure requirement, and the disclaimer requirement are unconstitutional because they are vague and overly broad, therefore violating the First Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.  The two parties filed cross motions for summary judgment. ¶ 10.         The trial court rejected GMF’s constitutional arguments and found that GMF violated the registration, disclosure, and identification requirements.  The court specifically found that GMF’s advertisements were electioneering communications because “[t]hey refer to a clearly identified candidate for office” and “oppose [his] fitness for office by raising questions about his judgment and policy choices.”  In so doing, the court adopted a narrowing construction of the PAC definition in order to avoid both vagueness and overbreadth concerns for the registration and disclosure requirements, finding that PAC status is triggered with respect to a candidate election by an expenditure “for the purpose of supporting or opposing one or more candidates.” ¶ 11.         In reaching its decision, the trial court concluded “[i]t would require the cheerful credulity of a very young child to conclude that the two political advertisements, prominently featuring Lt. Governor Dubie’s name and photograph and aired just prior to the gubernatorial election, had neither the intention nor the effect of advocating against his election.”  Thus, it drew the “obvious inference from the undisputed facts that the advertisements, objectively viewed, were created and broadcast for the purpose of opposing a candidate.”  It held that GMF violated the statutes imposing the registration, disclosure and identification requirements.  GMF disputes these conclusions only by arguing that the statutes must be narrowed to be constitutional and, as narrowed, that the statutes do not extend to GMF’s conduct. ¶ 12.         Following the summary judgment decision, the State sought a $100,000 civil penalty from GMF.  The trial court declined to impose such a large penalty, but instead levied on GMF a civil penalty of $10,000 for the violation of the registration requirement, finding that to be the “most critical violation” of the campaign finance laws.  It declined to give a separate penalty for the violation of the disclosure requirement.  Its decision on the civil penalty does not reference the violation of the identification requirement, although it does seem perhaps to be referring to that violation when it states: “The potential number of individual violations is astronomical since the television advertisements were aired thousands of times.”  ¶ 13.         On appeal, GMF argues that the trial court erred in its construction of the statutory definition of a PAC when it did not employ the “express advocacy” construction of the federal statute from Buckley in order to avoid vagueness and overbreadth, but instead created its own narrowing construction of the definition.  Under the Buckley construction, GMF argues, its advertisements did not trigger PAC status because they did not “include any words expressly advocating any electoral action,” or in fact “include any references to an election, voting, campaigns, or identify that any person in the communications was a candidate for elected office,” and GMF therefore did not violate either the registration or the disclosure requirement.  If the limiting construction of Buckley is not employed, GMF argues, “[a]ny broader interpretation would be rendered unconstitutional for vagueness and overbreadth.”  GMF does not appeal the finding of the violation of the identification requirement, presumably because it was not given a penalty for that finding.[3]  For its part, the State appeals the $10,000 civil penalty, arguing that that court abused its discretion by misapplying certain factors and giving a penalty for only one of the violations.  Further, it argues that the trial court abused its discretion in failing to consider the violation of the identification requirement in assigning the penalty.  ¶ 14.         This case comes to us from a summary judgment order.  We review a summary judgment order using the same standard as the trial court.  Richart v. Jackson, 171 Vt. 94, 97, 758 A.2d 319, 321 (2000).  Summary judgment is appropriate when, taking all allegations made by the nonmoving party as true, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.  V.R.C.P. 56(a); Richart, 171 Vt. at 97, 758 A.2d at 321. ¶ 15.         We review the trial court’s conclusions of law, particularly its constitutional decisions, de novo.  See Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 476 (7th Cir. 2012). ¶ 16.         We review the trial court’s imposition of a civil penalty under an abuse of discretion standard.  State v. Irving Oil Corp., 2008 VT 42, ¶ 18, 183 Vt. 386, 955 A.2d 1098.  Abuse of discretion will be found where “the court either failed to exercise its discretion altogether or exercised it for reasons that are clearly untenable or unreasonable.”  Herald Ass’n v. Dean, 174 Vt. 350, 359-60, 816 A.2d 469, 477-78 (2002). ¶ 17.         We begin with the appeal of the trial court’s decision on summary judgment, and GMF’s constitutional arguments regarding vagueness and overbreadth.  Although we follow the general policy of Buckley, as currently understood in more recent U.S. Supreme Court decisions, we conclude that the “magic words” need not be required in a communication in order to uphold a registration, disclosure or identification requirement of the type contained in the relevant Vermont statutes against either a vagueness or overbreadth challenge.  We engage generally in a constitutional analysis of the registration, disclosure and identification requirements and find them constitutional, adopting a narrowing construction of 17 V.S.A. § 2801(4) that is slightly more broad than that used by the trial court.  Re-examining GMF’s activities after determining that the registration and disclosure requirements of 17 V.S.A. §§ 2811 and 2831 are constitutional, we find that GMF violated those statutes.  Next, we address the State’s cross-appeal regarding the civil penalty.  Finally, we briefly address a motion made in this Court regarding the documents GMF included in its printed case. ¶ 18.         GMF challenges the registration and disclosure provisions under both the overbreadth and vagueness doctrines.  These two doctrines are not the same: the overbreadth doctrine of the First Amendment asks “whether the statute in question is so broad that it may not only prohibit unprotected behavior but may also prohibit constitutionally protected activity as well.”  Blondheim v. State, 529 P.2d 1096, 1100 (Wash. 1975) (citing Grayned v. Rockford, 408 U.S. 104, 114 (1972)).  The vagueness doctrine of the Due Process Clause of the Fifth or Fourteenth Amendment, on the other hand, asks “whether a statute provides fair notice . . . of that conduct which is prohibited and whether there are proper standards for adjudication.”  Id. (citing Grayned, 408 U.S. at 108).  However, courts “have traditionally viewed vagueness and overbreadth as logically related and similar doctrines,” Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983), and that is even more true in campaign finance cases and First Amendment cases more generally.  Beginning with Buckley v. Valeo in 1976, the U.S. Supreme Court’s vagueness jurisprudence surrounding campaign finance has involved overbreadth concepts as well, the idea being that a statute must be clear enough (vagueness) so as not to extend to protected speech (overbreadth).  See 424 U.S. at 41. ¶ 19.         It is thus unsurprising that GMF’s constitutional argument mixes the two concepts.  First, we look at Buckley to understand the relationship between the two doctrines.  Next, we address each doctrine in turn.  ¶ 20.         In Buckley, the U.S. Supreme Court addressed challenges to a number of provisions of the federal campaign finance law in force at that time, including 18 U.S.C. § 434(e).[4]  424 U.S. at 75-82.  That provision required “[e]very person (other than a political committee or candidate) who makes contributions or expenditures [of over $100 in a calendar year]” to file statements with the Federal Election Commission on certain dates.  “Contribution” and “expenditure” were defined in 18 U.S.C. § 431(e) and (f), respectively.  The definition of “expenditure,” 18 U.S.C. § 431(f), was a “purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value,” made “for the purpose of influencing . . . [an] election.”  Buckley, 424 U.S. at 146.  ¶ 21.         In order to avoid what the Court termed “serious problems of vagueness,” 424 U.S. at 76, it adopted a narrowing construction of the phrase “for the purpose of influencing an election,” under which an “expenditure” had to take the form of “funds used for communications that expressly advocate the election or defeat of a clearly identified candidate” in order to trigger regulation.  Id. at 80.  Elsewhere in the decision, in a footnote to a different section that also applied a narrowing construction limiting the statute’s requirements to communications containing “express terms advocat[ing] the election or defeat of a clearly identified candidate,” the Court gave examples of words or phrases that would qualify as express advocacy.  Id. at 44 n.52.  These examples have come to be known as Buckley’s “magic words,” intended to distinguish express (campaign) advocacy from issue advocacy.  McConnell v. Fed. Election Comm’n, 540 U.S. 93, 103 (2003).  ¶ 22.         Although this narrowing construction was made specifically to avoid the “vagueness problems” of 18 U.S.C. § 434(e), the Court declared that it was construing “expenditure” “for the purposes of that section,” which presumably meant all of § 434.  Buckley, 424 U.S. at 80.  This was important because § 434(a)-(c) set out the disclosure requirements for political committees. The Court noted that those disclosure requirements could “raise similar vagueness problems” because “political committee” in § 431(d) was “defined only in terms of amount of annual ‘contributions’ and ‘expenditures,’ ” suggesting that the narrowing construction was intended to apply also to the “expenditures” that triggered “political committee” status and the consequent registration requirement with the FEC under § 433.[5]  Buckley, 424 U.S. at 79. ¶ 23.         A crucial point to understand about Buckley is that it contains two relevant holdings—about overbreadth and vagueness—each of which has evolved over time.  One, concerning overbreadth, is that the government can regulate express campaign advocacy in ways that it cannot regulate issue advocacy.  The difference between the two types of advocacy particularly relates to disclosure requirements that may intrude on associational privacy when applied to issue advocacy.  Because the statute involved in Buckley did not make a distinction between the two types of advocacy, the Court found it to be overbroad, although it did not use that term.  Id. at 79-80 (explaining that the phrase “for the purpose of influencing an election” was suspect because it had the “potential for encompassing both issue discussion and advocacy of a political result,” and announcing a narrowing construction “[t]o insure that the reach of § 434(e) is not impermissibly broad”).  Cases have clarified since that this holding was about overbreadth.  See Osborne v. Ohio, 495 U.S. 103, 120 n.14 (1990) (stating that Buckley was a “landmark case where a law was construed to avoid potential overbreadth problems”); Fed. Election Comm’n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 248 (1986) (describing the narrowing construction of Buckley as made “in order to avoid problems of overbreadth”); Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 53 (1st  Cir. 2011) (collecting cases) (“[T]here are hints in Buckley that the constitutional basis for the Court’s concern lay more in overbreadth [than in vagueness]—i.e., that statutes that reached issue discussion might be deemed to regulate impermissibly a substantial amount of speech protected by the First Amendment[.]”), cert. denied, 132 S. Ct. 1635 (2012). ¶ 24.         The second holding of Buckley is that, without a specific narrowing construction, the statute involved is vague because the constitutional line between issue advocacy and election advocacy is by itself too difficult to predict in light of the statutory language.  See Buckley, 424 U.S. at 42 (“[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application.”).  Relying on the discussion in Thomas v. Collins, 323 U.S. 516 (1945), the Court noted that the distinction puts the speaker at the mercy of the varied understanding of the audience and, therefore “ ‘offers no security for free discussion.’ ”  Buckley, 424 U.S. at 43 (quoting Thomas, 323 U.S. at 535).  Thus, the Court observed the phrase “for the purpose of influencing an election” has the “potential for encompassing both issue discussion and advocacy of a political result,” id. at 79. ¶ 25.         This holding led the Court to narrow the application of the statute to avoid the constitutional deficiency.  Id. at 79-82.  In turn, the narrowing construction led to the “magic words;” that is, the Court deemed the presence of certain words—like “elect”—to be prerequisite for triggering regulation.  See id. at 80, 44 n.52.  The Court reasoned that such words are express words of election advocacy and show that the communicator is not engaged in issue advocacy alone.  See id.  ¶ 26.         In applying Buckley to the case at hand, GMF refers to Buckley’s “express advocacy” requirement as a necessary construction to avoid both vagueness and overbreadth concerns, and argues that because the definition of an expenditure triggering PAC status under the Vermont statute also includes the phrase “for the purpose of influencing an election,” it must be construed in the same way that the phrase was construed in Buckley.  Thus, under such a construction, GMF argues that none of the requirements in issue—registration, disclosure or identification—can apply to GMF because its communication did not use any of Buckley’s magic words.  ¶ 27.         If Buckley were the only source of law governing this case, we might find GMF’s analysis persuasive.  However, as noted above, Buckley is merely the beginning of a line of relevant campaign finance decisions—and thus Buckley’s holdings have evolved.  The constitutional significance of the line between issue advocacy and election advocacy broke down in McConnell v. Federal Election Commission, 540 U.S. 93 (2003).  In McConnell, the U.S. Supreme Court upheld an amendment to the Federal Election Campaign Act (FECA) by the Bipartisan Campaign Reform Act (BCRA) of 2002 that called for disclosure statements in the case of “electioneering communications” not by candidates or political committees.  540 U.S. at 102.  An “electioneering communication” was defined as any “broadcast, cable, or satellite communication” that referred to a “clearly identified candidate,” was made within a specified amount of time of an election, and (except for references to presidential or vice-presidential candidates) was “targeted to the relevant electorate.”  Id. at 189-90 (quotations omitted).  In approving this provision, the Court called the premise that “Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers possess an inviolable First Amendment right to engage in the latter category of speech” a “misapprehen[sion]” of the Court’s prior decisions, and thus “rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy.”  Id. at 190, 194.  Therefore, because “the important state interests that prompted the Buckley Court to uphold FECA’s disclosure requirements . . . apply in full to BCRA,” “Buckley amply supports application of . . . disclosure requirements to the entire range of ‘electioneering communications.’ ”  Id. at 196.  This holding was reinforced in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), where the Court rejected the argument that “disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.”  558 U.S. at 369; see McKee, 649 F.3d at 54-55 (“We find it reasonably clear, in light of Citizens United, that the distinction between issue discussion and express advocacy has no place in the First Amendment review of these sorts of disclosure-oriented laws.”). ¶ 28.         With this background, we turn to our analysis of GMF’s constitutional claims.  In doing so we start with three general points.  First, this case involves primarily “as-applied” constitutional claims.  In its complaint, the State claimed violations of three statutory regulations: failure to register as required by 17 V.S.A. § 2831(a); failure to file a campaign finance report as required by 17 V.S.A. § 2811(c); and failure to include in “electioneering communications” an address as required by 17 V.S.A. § 2892.  GMF filed an answer alleging that the laws the State seeks to apply to GMF violate the First Amendment to the U.S. Constitution.  This allegation created the as-applied challenge. ¶ 29.         GMF also filed a counterclaim with four counts.  Two of these counts related directly to the State’s action against GMF.  They could equally have been alleged as affirmative defenses that restate and amplify the as-applied challenge.  One, Count IV, alleges that the definition of electioneering communication in 17 V.S.A. § 2891 is overbroad and vague.  Another, Count III, alleges that the definition of political committee or political action committee in 17 V.S.A. § 2801(4) is overbroad and vague.  For these counts, GMF sought a declaration that the statutory scheme is unconstitutional.  We interpret these counts as facial challenges to the statute. ¶ 30.         As a second general point, we observe that increasingly, as this case has progressed, GMF has focused on Count III of the counterclaims, challenging the definition of political action committee or political committee, see supra ¶ 4, and making the argument that the definitions are unconstitutional under Buckley particularly because they trigger other obligations with emphasis on the contribution limits applicable to a PAC.  In GMF’s reply brief, the arguments narrow almost exclusively to the definition of a political action committee and the accompanying registration and contribution requirements.  GMF argues that: (1) the State’s precedents are irrelevant to the extent that they involve statutory schemes that do not have contribution limits; and (2) statutory schemes with contribution limits should be construed, with respect to all elements—including disclosure requirements—to apply only in cases of express election advocacy using the Buckley magic words. ¶ 31.         There are two ways to look at the issue of the statutory definition of a PAC.  Under GMF’s theory, it is the central element that triggers all the other regulatory requirements so that, if the definition of a PAC is unconstitutionally broad, there can be no regulation of any type, including disclosure regulation.  The contrary theory is that GMF is attacking a definition, and not a substantive requirement, and that the definition may be adequate for some requirements but not for others.  Indeed, the definition of a PAC is irrelevant to the regulation of electioneering communications, because that provision targets the communication and not the speaker.  See 17 V.S.A. § 2892. ¶ 32.         The modern decisions in this area have uniformly adopted the second theory and have analyzed each substantive requirement independent of the others.  See Worley v. Fla. Sec’y of State, 717 F.3d 1238, 1243-44 (11th Cir. 2013) (PAC regulations themselves are not subject to strict scrutiny; every circuit has applied exacting scrutiny to disclosure schemes); see generally McKee, 649 F.3d at 56 (“[Plaintiff’s] attempt to ascribe a free-standing significance to the PAC label is unpersuasive.  It is not the designation as a PAC but rather the obligations that attend PAC designation that matter for purposes of First Amendment review.”); Vt. Right to Life Comm. v. Sorrell, 875 F. Supp. 2d 376, 392 (D. Vt. 2012) (“[I]t is the underlying regulation, not the PAC definition, that counts.”).  Thus, the fact that a definition is overbroad for a contribution limit does not make it so for purposes of a disclosure requirement.  It is no mystery, of course, why a party would choose to argue otherwise: GMF argues that the Vermont disclosure provisions must meet a more stringent constitutional standard because they are in a statutory scheme that includes contribution limits.  Again, the logic is that a contribution limit must survive strict scrutiny, and therefore the definition of a PAC must also survive strict scrutiny or, if it does not, GMF is not a PAC and is unregulated.  At least impliedly because it was reviewing statutory schemes with contribution or expenditure limits, the U.S. Supreme Court rejects this argument.  The lower court precedents explicitly reject it, especially with respect to disclosure requirements.  See Worley, 717 F.3d at 1243-44; Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1013 (9th Cir. 2010). ¶ 33.         There is another consequence here that undermines GMF’s approach.  Although GMF has characterized contribution limits as unreasonable burdens, it has never challenged the limits in the Vermont statute even in its counterclaims.[6]  Thus, it seeks to strike down the entire regulatory regime based on the presence of contribution limits without a holding that disclosure limits are unconstitutional.  See McKee, 649 F.3d at 55-56 (noting that plaintiff’s arguments are contradictory because they seek to justify the application of strict scrutiny review based on an undefined set of PAC burdens, but they do not attack the burdens, only the PAC definition); Vt. Right to Life Comm., 875 F. Supp. 2d at 393 (“Since [appellant] has not raised issue with the contribution restriction, it strikes the Court as improbable that the challenge relates to any PAC burden other than the registration and reporting disclosure requirements.”). ¶ 34.          The differences in the way the parties view this case are brought to a head by the State’s characterization of the case as a disclosure case and GMF’s insistence that it is instead a PAC case.  In our view, the State’s characterization is accurate—this is a disclosure case, and GMF’s attempt to broaden it beyond disclosure is ineffective. ¶ 35.         As a third and final general point, we note that we are proceeding on well-charted ground.  Virtually all of the litigation about disclosure requirements has been about what Senator Susan Collins of Maine called “bogus issue advertising.”  See McConnell, 540 U.S. at 170 (quoting Senator Collins as stating, “the twin loopholes of soft money and bogus issue advertising have virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal rubble”).  The Court in McConnell addressed an asserted issue advertisement that uses the same approach as the advertisement before us, albeit on a different subject.  See id. at 194 n.78. ¶ 36.         Since Citizens United, there have been a number of federal circuit court decisions upholding campaign finance disclosure requirements against facial challenges.  See Madigan, 697 F.3d at 470 n.1 (collecting cases); see also Worley, 717 F.3d at 1252.  Most are cited and relied upon in our analysis of GMF’s claims, supra and infra.  In addition, the U.S. District Court for the District of Vermont has recently considered a facial challenge to the same campaign finance statutes at issue here and found them to be constitutional.  Vt. Right to Life Comm., 875 F. Supp. 2d at 386-400. ¶ 37.         We turn next to the various requirements GMF has challenged.  We start with the as-applied challenge to the disclosure requirements, including the disclosures made in the registration and the identification information required for electioneering communications.  Although we have separately characterized the registration and identification requirements to explain the specific provisions the trial court found GMF to have violated, we can properly analyze them here as disclosure requirements.  See The Real Truth About Abortion, Inc. v. Fed. Election Comm’n, 681 F.3d 544, 551 n.3 (4th Cir. 2012) (stating that registration requirement is “akin to the disclosure requirements” for purposes of constitutional analysis); McKee, 649 F.3d at 55 n.29 (stating that registration is “first and foremost a disclosure provision”).  Viewed as a disclosure regulation, the registration component for a PAC is very modest—to provide its full name and address, the name of its treasurer, and the name of the bank in which it maintains its campaign checking accounts.  17 V.S.A. § 2831(a).  As one court noted, these requirements reflect little more than what a prudent organization would do.  See Worley, 717 F.3d at 1250.  We judge the registration requirements to add little to the analysis. ¶ 38.         Citizens United sets out the primary law under which we must evaluate a First Amendment challenge to disclosure requirements.  The U.S. Supreme Court recapitulated that campaign-finance-disclosure requirements have the least burden on First Amendment rights because they “impose no ceiling on campaign-related activities and do not prevent anyone from speaking.”  Citizens United, 558 U.S. at 366 (quoting Buckley, 424 U.S. at 64 and McConnell, 540 U.S. at 201) (internal quotation marks omitted).  Thus, these requirements must meet a standard of exacting scrutiny, “which requires a substantial relation between the disclosure and a sufficiently important government interest.”  Id. at 366-67 (quotation omitted); see Madigan, 697 F.3d at 477.  The substantial governmental interest involved is in “providing the electorate with information about the sources of election-related spending.”  Citizens United, 558 U.S. at 367 (quotation omitted).  Contribution disclosure requirements were upheld in McConnell as substantially related to the governmental interest.  McConnell, 540 U.S. at 194-97.  Under McConnell and Citizens United, the disclosure requirements here survive the basic First Amendment challenge.[7]  See Madigan, 697 F.3d at 499; McKee, 649 F.3d at 57; Brumsickle, 624 F.3d at 1018; Vt. Right to Life Comm., 875 F. Supp. 2d at 397. ¶ 39.         GMF attacks the disclosure requirements as overbroad and vague.  On these points, it argues that the governing law comes from Buckley.  In addressing this as-applied challenge, we point out that the trial court found that GMF made the minimum-qualifying expenditures for the purpose of opposing a candidate, and the court did not address the State’s claim that the expenditures were made to influence an election.  Even if Buckley provided the governing law, it is debatable how its analysis would apply to this “influencing” standard. ¶ 40.         But, as discussed above, Buckley is not the governing law on the constitutional arguments raised by GMF.  GMF’s overbreadth argument, derived from Buckley, that the disclosure requirements must apply only to express election advocacy, has been clearly rejected by Citizens United and McConnell.  Citizens United specifically rejected the “contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.”  558 U.S. at 369; see also McConnell, 540 U.S. at 193-94 (following Citizens United’s rejection of a strict divide between express advocacy and issue advocacy); Madigan, 697 F.3d at 484 (same); Brumsickle, 624 F.3d at 1016 (same).[8] ¶ 41.         Nor do we believe that GMF’s vagueness argument fares any better.  There can be no serious argument that the purpose of GMF’s advertisements was not to oppose Brian Dubie’s campaign for Governor, despite the absence of any magic words.  As the Supreme Court said in McConnell, the magic words requirement of Buckley “is functionally meaningless.”  McConnell, 540 U.S. at 193.  Objectively evaluated, as the trial court did here, we do not believe the standard “for the purpose of . . . opposing one or more candidates” is vague; indeed it is very close to wording found not to be vague in McConnell.  See McConnell, 540 U.S. at 170 n.64; see also Madigan, 697 F.3d at 486; McKee, 649 F.3d at 63; Vt. Right to Life Comm., 875 F. Supp. 2d at 389. ¶ 42.         While we do not have to evaluate the definition of “electioneering communication” to determine whether it is overbroad or vague, in view of GMF’s failure to appeal the trial court decision on this point, we note that this definition is also essentially the same as that evaluated and upheld in McConnell.  McConnell, 540 U.S. at 102; see Madigan, 697 F.3d at 491; McKee, 649 F.3d at 62-63.  We see no ground to find it either overbroad or vague.  Vt. Right to Life Comm., 875 F. Supp. 2d at 400 & n.19. ¶ 43.         We affirm the trial court’s decision with respect to its conclusion on the merits that GMF violated each of the sections alleged and that the law as applied is constitutional.  This answers GMF’s as-applied challenges. ¶ 44.         GMF’s facial challenge is broader primarily because it challenges the alternative element of “influencing an election,” which was not the basis for the as-applied challenge.[9]  In all other respects our analysis is the same as that above for the as-applied challenge.  The exacting scrutiny standard applies and is met.  The additional element is not overbroad in light of the holding of Citizens United that disclosure regulation can apply to issue advocacy.  Nevertheless, the trial court held that it needed to narrow the definition of a PAC in 17 V.S.A. § 2801(4) to avoid a conclusion that the definition is vague.  It did so by collapsing the alternative element (“influencing an election”) into the other relevant element—“supporting or opposing one or more candidates.” ¶ 45.         Statutes “are unconstitutionally vague when they either (1) fail to provide sufficient notice of what conduct is prohibited, or (2) authorize or encourage arbitrary and discriminatory enforcement by failing to provide explicit standards.”  In re Rusty Nail Acquisitions, Inc., 2009 VT 68, ¶ 12, 186 Vt. 195, 980 A.2d 758.  Furthermore, “[t]he concern for vagueness is heightened in the context of the First Amendment.”  Vt. Right to Life Comm., 875 F. Supp. 2d at 386; see also Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010) (“We have said that when a statute interferes with the right of free speech or of association, a more stringent vagueness test should apply.” (quotation omitted)).[10] ¶ 46.         As noted above, 17 V.S.A. § 2801(4) defines a political committee as a group that makes certain expenditures for one of three alternative reasons: “for the purpose of supporting or opposing one or more candidates, influencing an election, or advocating a position on a public question.”  With respect to elections of public officers, as opposed to “public question” elections, we read the statute as containing two alternative elements: “for the purpose of supporting or opposing one or more candidates” and “for the purpose of . . . influencing an election.”  The trial court, faced with GMF’s vagueness claim, decided that the meaning of the statute must be narrowed to avoid a vague decision striking the second element and leaving the first one above: “for the purpose of supporting or opposing one or more candidates.”  In its brief, the State advocates our adoption of the trial court’s interpretation of § 2801(4), stating that “[t]he superior court properly . . . interpreted the more general language ‘to be the equivalent of ‘supporting or opposing one or more candidates,’ ’ and therefore found no vagueness.”  The U.S. District Court ruled in Vermont Right to Life Committee that the narrowed construction adopted by the trial court eliminated any vagueness concern.  See 875 F. Supp. 2d at 389. ¶ 47.         GMF’s vagueness argument is specifically aimed at the phrase “for the purpose of . . . influencing an election.”  In addressing this argument, the trial court was particularly influenced by the analysis of the same question in McKee.  In McKee, the court found that the use of the term “influencing” presented vagueness problems.  649 F.3d at 64-65.  The court noted that the word “influence” is not as “result-oriented” as phrases like “promote,” “oppose,” “defeat,” or “support,” which “focus[] on advocacy for or against a particular candidacy.”  Id.  It observed, “[c]onceivably falling within the meaning of ‘influence’ are objectives as varied as advocacy for or against a candidate’s election; championing an issue for inclusion in a candidate’s platform; and encouraging all candidates to embrace public funding.”  Id.  On that basis, the court found the term to be vague: “[w]ithout more context . . . the intended meaning of ‘influence’ [is] uncertain enough that a person of average intelligence would be forced to guess at its meaning and modes of application.”  Id. (quotation omitted).  We agree with this conclusion.  ¶ 48.          State courts have wide latitude for assigning narrowing constructions to potentially unconstitutional statutes.  In contrast to a federal court, which can adopt a narrowing construction of a state statute only if that statute is “readily susceptible” to the construction, Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988), a state court “in reading a statute for constitutional testing, may give it a narrowing construction to save it from nullification, where such construction does not establish a new or different policy basis and is consistent with legislative intent.”  State v. Downey, 476 N.E.2d 121, 123 (Ind. 1985).  Even when adopting a narrowing construction, we must engage in statutory construction to be sure we are not deviating from the intent of the Legislature.  See State v. Read, 165 Vt. 141, 147, 680 A.2d 944, 948 (1996). ¶ 49.         A primary method of narrowing a statute by appropriate interpretation is to construe it to create an objective standard.  We have done that in cases in which we faced overbreath and vagueness challenges.  See State v. Albarelli, 2011 VT 24, ¶¶ 13-14, 189 Vt. 293, 19 A.3d 130; State v. Colby, 2009 VT 28, ¶ 11, 185 Vt. 464, 972 A.2d 197; State v. Allcock, 2004 VT 52, ¶ 7, 177 Vt. 467, 857 A.2d 287 (mem.).  We do not deviate from the intent of the Legislature by construing the statute before us to create objective standards.  The trial court adopted an objective standard.[11]  We affirm and endorse that decision.   ¶ 50.         We are concerned, however, that the trial court’s narrowing construction went too far and left the statute not fully consistent with legislative intent.  Rather than narrowing the phrase “influencing an election,” it eliminated the phrase completely.  We avoid statutory construction that makes a substantial part of the language superfluous, the result of the trial court’s action here.  See State v. Beaudoin, 2008 VT 133, ¶ 36, 185 Vt. 164, 970 A.2d 39.  Thus, we reexamine the narrowing reached by the trial court to leave “influencing an election” intact as an alternative element. ¶ 51.         The deficiency in the statutory language is that it is unclear what kind of “influence” the statute refers to—as the court pointed out in McKee, this could encompass advocacy for a vote for a particular outcome, or it could encompass other goals such as bringing a particular issue to the election debate or discouraging negative campaign advertisements.  Furthermore, it leaves unclear whether simply raising an issue of public concern that might be an important one in the election, without any mention of a candidate, could be considered to be “for the purpose of . . . influencing an election.” ¶ 52.         The canon of construction noscitur a sociis roughly means “it is known by its associates.”  In re E.C., 2010 VT 50, ¶ 10, 188 Vt. 546, 1 A.3d 1007 (mem.).  Under that principle, we “seek the meaning from the context and by the light of what precedes or follows.”  Parks’ Adm’r v. Am. Home Missionary Soc’y, 62 Vt. 19, 25, 20 A. 107, 108 (1890); Black’s Law Dictionary 1087 (8th ed. 2004) (“Noscitur a sociis . . . A canon of construction holding that the meaning of an unclear word or phrase should be determined by the words immediately surrounding it.”). ¶ 53.         Applying this principle to 17 V.S.A. § 2801(4), we note that the specifically defined phrases (“supporting or opposing one or more candidates” and “advocating a position on a public question”) are of a particular class: they both refer to advocacy for a vote in a particular way in an election.  We therefore interpret the more general language “for the purpose of . . . influencing an election” to refer only to this class of advocacy.  In other words, “influencing” means encouraging a vote for or against a candidate or a vote “yes” or “no” on a public question. On this point, our views are consistent with the approach of the trial court. ¶ 54.         We diverge, however, when considering the methods an organization might use to accomplish its objectives.  The purpose of the methods used by GMF in this case was very clear, partially because GMF identified the candidate by name and included his pictures in the advertisements.  If in the next case, however, an organization ran advertisements in the same way and in the same timeframe with respect to an election without mentioning the candidate’s name, and without including a picture of the candidate, we would be reluctant to hold that the statute as narrowed by the trial court could cover this method—even if an objective observer would find the purpose to be the same as when the candidate name and picture was used.  As in this case, the objective observer should look to multiple factors: for example, the timing of the advertisement, the images used in the advertisement, the tone of the advertisement, the audience to which the advertisement is targeted, and the prominence of the issue(s) discussed in the advertisement in the campaign. But where the objective observer concludes that the purpose of an advertisement is to influence voters to vote yes or no on a candidate, the “influencing an election” language should apply.[12]  Other than in this circumstance, we agree with the trial court’s narrowing construction. ¶ 55.         While we have narrowed the statute to a lesser degree than the trial court, we have preserved a role for the contested language.  We conclude that the very limited purpose and effect of the “influencing an election” language addresses the vagueness challenge.  For example, the federal court’s analysis in Vermont Right to Life Committee, rejecting the vagueness challenge under the trial court narrowing of the statute, would be the same under the interpretation in this opinion.  There, the federal court relied upon the McConnell analysis to conclude that “promote,” “oppose,” “attack,” and “support” are not vague terms, and thus found the statute as construed by the trial court not vague.  See id.  Our construction, compared with the trial court’s, additionally interprets “for the purpose of . . . influencing an election” to mean for the objective purpose of persuading someone to vote in a certain manner in an election.  So construed, 17 V.S.A. § 2801(4) (and the similarly construed definition of “expenditure”) is not vague. ¶ 56.         While we chose to adopt our narrowing construction so as to properly address GMF’s facial vagueness argument, it is not—as noted above—necessary to do so in order to determine that GMF violated 17 V.S.A. §§ 2811 and 2831.  That is because GMF’s advertisements fit clearly into one of the specific statutory alternatives of the PAC definition: “supporting or opposing one or more candidates.”  GMF’s advertisements featured Brian Dubie, the widely-known Republican candidate for governor, in the weeks preceding the general election, and attacked his character and fitness for office.  Having found in the above sections that the statute is neither vague nor overbroad, either facially or as applied to GMF, we also affirm the trial court’s finding that GMF violated 17 V.S.A. §§ 2811 and 2831. ¶ 57.         The State cross-appeals the trial court’s imposition of a $10,000 fine for GMF’s failure to register as a political committee and its decision not to impose a fine for any of the other statutory violations.  As previously stated, we review the trial court’s imposition of a civil penalty under an abuse of discretion standard.  Irving Oil Corp., 2008 VT 42, ¶ 18.  Abuse of discretion will be found where “the court either failed to exercise its discretion altogether or exercised it for reasons that are clearly untenable or unreasonable.”  Herald Ass’n, 174 Vt. at 359-60, 816 A.2d at 477-78. ¶ 58.         The trial court correctly took four factors into account in assigning the penalty: “(1) the good or bad faith of the defendants; (2) the injury to the public; (3) the defendant’s ability to pay; and (4) the necessity of vindicating the authority of the [regulator].”  See Fed. Election Comm’n v. Furgatch, 869 F.2d 1256, 1258 (9th Cir. 1989). ¶ 59.         The State argues that the trial court abused its discretion when it: (1) misapplied the factor of public harm by requiring evidence of actual harm; (2) misapplied the factor of deterrence by considering only deterrence of GMF rather than other potential offenders and by failing to assign penalties for the disclosure requirements; (3) improperly considered compliance with federal law as a mitigating factor; and (4) entirely failed to consider the violation of the identification requirement. We address each in turn. ¶ 60.         First, in deciding not to impose any penalty for GMF’s violation of the disclosure requirement, the trial court focused on the lack of harm to the public because GMF’s receipts and disbursements were disclosed to the IRS and are viewable online.  The State argues that in an area of “fundamental government interest” such as campaign finance, “public harm is presumed from the serious nature of the violation.”  The cases that the State cites, however, stand for the proposition that a court may presume harm, not that it must or that the violation itself constitutes harm to the public.  In Furgatch, for example, the court’s justification for allowing a trial court to presume harm was the “difficulty of proving that violations of [reporting and disclosure requirements] actually deprived the public of information.”  Furgatch, 869 F.2d at 1259.  Here, the trial court’s decision not to impose a penalty was not because of the difficulty of proving the harm, but because it found that there was “little or no actual harm caused.” ¶ 61.         Second, the State argues that the trial court misapplied the factor of deterrence when it considered counsel for GMF’s representation that “GMF would abide by any order of this court which is upheld on appeal.”  The State argues that the factor of deterrence refers not only to a penalty imposed on the actor but also to penalties that would be imposed on other actors if they engage in similar violations.  We need not consider whether it is, in fact, a requirement for a trial court to consider deterrence of other actors, because the trial court did so: “To the extent other campaigns look to this case for guidance, a $10,000 penalty is a sufficient deterrent to achieve compliance.”  This may not be a detailed analysis of the deterrence factor, but the court’s rationale is clear. ¶ 62.         The State argues further that the trial court abused its discretion when it gave a penalty only for the violation of the registration requirement because that “diminished the value of the reporting requirements” and the low total penalty will not have enough deterrent value to “secure future compliance by any political entity.”  This is the type of analysis that is absolutely within the realm of the trial court.  While the State may disagree with the court’s finding, the court applied the appropriate factors and determined that the $10,000 penalty for the violation of the registration requirement was “sufficient to meet the needs of the state to respond to GMF’s failure to comply with the law.”  This was not an abuse of discretion. ¶ 63.         Third, the State argues that the trial court abused its discretion in taking into account GMF’s compliance with federal law as a mitigating factor.  The trial court mentioned compliance with IRS requirements twice, and neither time did it treat such compliance as a “mitigating factor.”  The first time was its discussion of harm to the public.  It was reasonable, and certainly not an abuse of discretion, to take into account the fact that IRS reports are posted online in evaluating whether the public was harmed by failure to disclose the same information that was in those reports.  The second time was in the discussion of deterrence, where the trial court found that since GMF was already subject to, and complying with, federal law in filing disclosure reports, this was not a case in which compliance was likely to be a problem.  This is a fair consideration, and does not use compliance with federal law as a “mitigating factor,” but rather as a circumstance leading to a higher likelihood of compliance. ¶ 64.         Finally, the State argues that the trial court failed entirely to consider the violations of the identification requirement in calculating the penalty.  In its decision on summary judgment, the court rejected GMF’s argument that listing its web address complied with the statutory requirement that “electioneering communications” contain the “name and address” of the political committee that paid for the communication and held that the statute requires disclosure of a “physical or mailing address.”  See 17 V.S.A. § 2892.  Therefore, the advertisements, without the required address, were in violation of a provision of the campaign finance chapter, and GMF was subject to a civil penalty of up to $10,000 for each violation.  See id. § 2806(b).  ¶ 65.         In the introduction to the “Decision on Civil Penalty,” the court referred to its previous ruling that GMF violated Vermont campaign finance law when it “failed to register and disclose its expenditure of $429,186 on two political ads shortly before the 2010 gubernatorial election,” with no mention of the violations of the identification requirement.  It did, however, reference the identification requirement violation when it stated: “The potential number of individual violations is astronomical since the television advertisements were aired thousands of times.”  This brief (and unclear) reference to the violation of the identification requirement does not show a true exercise of discretion.  See Vt. Nat’l Bank v. Clark, 156 Vt. 143, 145, 588 A.2d 621, 622 (1991) (a trial court’s “with[olding] its discretion entirely” is an abuse of discretion).  Nor does the difficulty of calculating a penalty mean that no penalty can be awarded.  “It would eviscerate the [regulatory system] to allow violators to escape civil penalties on the ground that such penalties cannot be calculated with precision.”  United States v. Mun. Auth. of Union Twp., 929 F. Supp. 800, 806-07 (M.D. Pa. 1996).  While there may be other factors that would allow a court in its discretion not to assign a penalty for these violations, the court needs to state explicitly that it is doing so and include its rationale for this decision.  We cannot find these actions in the trial court’s decision with respect to the violation of the identification requirement. ¶ 66.         Before oral argument, the State moved to strike portions of GMF’s printed case because they were not part of the trial court record.  V.R.A.P. 30(a)(1) provides that an appellant must prepare a printed case “containing extracts from the record that are necessary to present fully the questions raised.”  Because the documents to which the State objects were not filed in the trial court, they were not appropriate to include in the printed case, so this motion is granted.  We have not, however, relied on either of the documents. Affirmed, but remanded to the trial court for consideration of a penalty for the violations of the identification requirement.       FOR THE COURT:                       Associate Justice   [1]  A “public question” is an “issue that is before the voters for a binding decision.”  17 V.S.A. § 2801(8).  No public question advocacy is involved in this case.   [2]  The purposes contained in the definition of “expenditure,” 17 V.S.A. § 2801(3), are similar (albeit in a slightly different order) to those in the reference to “expenditures” in the definition of a PAC: “a payment, disbursement, distribution, advance, deposit, loan, or gift of money or anything of value . . . for the purpose of influencing an election, advocating a position on a public question, or supporting or opposing one or more candidates.”  17 V.S.A. § 2801(3).  Unlike the § 2801(4) definition of a PAC, however, the definition of “expenditure” does not contain the ending phrase “in any election or affecting the outcome of any election.”  We have never construed this phrase or commented on its significance.  GMF has not relied upon this phrase in its overbreadth or vagueness challenges, focusing instead on the phrase “influencing an election.”  Therefore, we do not consider the effect of this phrase on our analysis in the remainder of this opinion.  With this exception, this opinion follows the trial court decision in focusing on the definition of a PAC in § 2801(4), but that analysis is of course applicable to § 2801(3) as well, insofar as the language connected to “expenditure” in § 2801(4) is largely a repetition of the content of § 2801(3). [3]  We have nevertheless addressed this ruling because it is related to the lower court decision with respect to the PAC definition. [4]  The text of the campaign finance law at the time can be found in the appendix to Buckley, 424 U.S. at 144 et seq. [5]  In the same section, the Court approved a separate narrowing construction of “political committee,” § 431(d), whereby such a group must also be “under the control of a candidate or the major purpose of which is the nomination or election of a candidate.”  Buckley, 424 U.S. at 79.  This has come to be known as the “major purpose” test.  However, it has been interpreted by lower courts as only a construction of “political committee” under federal law, not as a constitutional requirement for state definitions of political committees.  See Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 59 (1st Cir. 2011) (“We find no reason to believe that this so-called ‘major purpose’ test . . . is anything more than an artifact of the Court's construction of a federal statute.”), cert. denied, 132 S. Ct. 1635 (2012); Yamada v. Weaver, No. 10–00497 JMS–RLP, 2012 WL 983559, at *17 (D. Haw. Mar. 21, 2012). [6]  GMF’s failure to challenge the contribution limits may have been affected by the decision of the U.S. District Court for the District of Vermont that the contribution limits are unconstitutional if a PAC makes only independent expenditures, and that the court must make a factual inquiry to determine whether the PAC makes solely independent expenditures. Vt. Right to Life Comm., 875 F. Supp. 2d at 405-06.  Thus, if the expenditures here are independent under Vermont Right to Life, there are no applicable contribution limits eliminating GMF’s argument that the presence of contribution limits governs how we review disclosure requirements.  In fact, the issue of whether GMF’s expenditures are independent has never been raised in this case. [7]  GMF has not directly argued that the disclosure requirements fail to satisfy exacting scrutiny, but we include this analysis to show the basic validity of the requirements. [8]  Although not necessary for us to state, but clear in light of the trial court’s evaluation of GMF’s communications, those communications would meet a standard of functional equivalency with express advocacy.  See, e.g., Brumsickle, 624 F.3d at 1015-16. [9]  As with the as-applied challenge, the facial challenge to the definition of an “electioneering communication” is not part of the appeal.   [10]  The State has challenged GMF’s right to go beyond the facts of its communications, relying on the holding of Village of Hoffman Estates v. Flipside, Hoffmann Estates, Inc., 455 U.S. 489, 495 (1982), that one who engages in some conduct that is clearly proscribed cannot complain of the vagueness of a law as applied to the conduct of others.  Although GMF’s pleadings are neither a model of completeness nor of precision, we understand that it is an advocacy organization that desires to engage in issue advocacy that could be viewed as coming under any of the elements of the definition of a PAC and trigger regulation, and that is the basis of its facial attacks.  Thus, its facial attacks are not based on its past actions, about which it has raised as-applied challenges, but instead on its actions in the future.  The State has not contested its right to raise an independent facial challenge by a counterclaim; nor has it claimed that GMF lacks standing to do so.  In these circumstances, we reach the merits of GMF’s facial-attack claims.  [11]  GMF argues at great length against intent-based tests. Since the trial court rejected an intent-based test, and we agree with the trial court, we need not address these arguments specifically.    [12]  Although we agree with McKee that “influencing,” without further definition, is overly vague, one facet of the word in particular supports our saving construction of “influencing an election” here.  The primary dictionary definition of “influence” is: “To alter or move in respect to character, conduct, or the like; to sway; persuade; affect . . . .”  Webster’s New World International Dictionary 1276 (2d ed. 1961).  As detailed above, when an objective observer concludes that the purpose of an advertisement is to persuade a voter to vote in a certain way, that advertisement will be considered to be “influencing an election” as far as we interpret that phrase.  

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT DEC 22 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS STATE OF HAWAII; ISMAIL ELSHIKH; No. 17-17168 JOHN DOES, 1 & 2; MUSLIM ASSOCIATION OF HAWAII, INC., D.C. No. 1:17-cv-00050-DKW-KSC Plaintiffs-Appellees, District of Hawaii, Honolulu v. ORDER DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN M. NIELSEN, in her official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX W. TILLERSON, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, Defendants-Appellants. Before: HAWKINS, GOULD, and PAEZ, Circuit Judges. The opinion disposition filed on December 22, 2017, is withdrawn and a new opinion disposition is filed concurrently with this order.  FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 22 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT STATE OF HAWAII; ISMAIL ELSHIKH; No. 17-17168 JOHN DOES, 1 & 2; MUSLIM ASSOCIATION OF HAWAII, INC., D.C. No. 1:17-cv-00050-DKW-KSC Plaintiffs-Appellees, v. OPINION DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN M. NIELSEN, in her official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX W. TILLERSON, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, Defendants-Appellants. Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding Argued and Submitted December 6, 2017 Seattle, Washington Before: Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez, Circuit Judges. PER CURIAM:  For the third time, we are called upon to assess the legality of the President’s efforts to bar over 150 million nationals of six designated countries1 from entering the United States or being issued immigrant visas that they would ordinarily be qualified to receive. To do so, we must consider the statutory and constitutional limits of the President’s power to curtail entry of foreign nationals in this appeal of the district court’s order preliminarily enjoining portions of § 2 of Proclamation 9645 entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” (the “Proclamation”). The Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., vests the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has enacted through the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. 1 Although Proclamation 9645 imposes varying restrictions on nationals of eight countries—Chad, Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela—Plaintiffs challenge only the restrictions imposed on the nationals of six Muslim-majority countries. 2 Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation. On these statutory bases, we affirm the district court’s order enjoining enforcement of the Proclamation’s §§ 2(a), (b), (c), (e), (g), and (h). We limit the scope of the preliminary injunction, however, to foreign nationals who have a bona fide relationship with a person or entity in the United States. I. Background2 A. Prior Executive Orders and Initial Litigation On January 27, 2017, one week after his inauguration, President Donald J. Trump signed an Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry into the United States.” Exec. Order 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) (“EO-1”). EO-1’s stated purpose was to “protect the American people from terrorist attacks by foreign nationals admitted to the United States.” 2 Portions of the background section have been drawn from the district court’s order below. See Hawai’i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 4639560, at *1–4 (D. Haw. Oct. 17, 2017) (“Hawai’i TRO”). 3 Id. EO-1 took effect immediately and was challenged in several venues shortly after it was issued. On February 3, 2017, a federal district court in the State of Washington enjoined the enforcement of EO-1. See Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017). The Government filed an emergency motion seeking a stay of the injunction, which we denied. See Washington v. Trump, 847 F.3d 1151, 1161–64 (9th Cir. 2017) (per curiam), reh’g en banc denied, 853 F.3d 933 (9th Cir. 2017). The Government later voluntarily dismissed its appeal of the EO-1 injunction. On March 6, 2017, the President issued Executive Order 13,780, which was given the same title as EO-1 and was set to take effect on March 16, 2017. 82 Fed. Reg. 13,209 (Mar. 6, 2017) (“EO-2”). EO-2 directed the Secretary of Homeland Security to conduct a global review to determine whether foreign governments were providing adequate information about their nationals seeking entry into the United States. See EO-2 § 2(a). EO-2 also directed the Secretary of Homeland Security to report those findings to the President; following the Secretary’s report, nations identified as providing inadequate information were to be given an opportunity to alter their practices before the Secretary would recommend entry restrictions for nationals of noncompliant countries. Id. §§ 2(b), (d)–(f). During this global review, EO-2 imposed a 90-day suspension on the entry of certain foreign nationals from six Muslim-majority countries: Iran, Libya, 4 Somalia, Sudan, Syria, and Yemen. Id. § 2(c). That 90-day suspension was challenged in multiple courts and was preliminarily enjoined by federal district courts in Hawai‘i and Maryland. See Hawaiʻi v. Trump, 245 F. Supp. 3d 1227 (D. Haw. 2017); Int’l Refugee Assistance Project (“IRAP”) v. Trump, 241 F. Supp. 3d 539 (D. Md. 2017). Those injunctions were affirmed by the Ninth and Fourth Circuits, respectively. See Hawai‘i v. Trump (Hawai‘i I), 859 F.3d 741 (9th Cir. 2017) (per curiam); IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc), as amended (May 31, 2017). The Supreme Court granted a writ of certiorari in both cases and left the injunctions in place pending its review, except as to foreign nationals who lacked a “credible claim of a bona fide relationship with a person or entity in the United States.” Trump v. IRAP, 137 S. Ct. 2080, 2088 (2017). On September 24, 2017, the President issued the Proclamation, which indefinitely suspends immigration by nationals of seven countries and imposes restrictions on the issuance of certain nonimmigrant visas for nationals of eight countries. 82 Fed. Reg. 45,161, 45,164–67 (Sept. 24, 2017). The entry restrictions were immediately effective for foreign nationals who 1) were subject to EO-2’s restrictions, and 2) lack a credible claim of a bona fide relationship with a person or entity in the United States. Id. at 45,171. For all other affected persons, the Proclamation was slated to take effect on October 18, 2017. Id. On October 10, 2017, the Supreme Court vacated the Fourth Circuit’s opinion in IRAP v. Trump as 5 moot. See Trump v. IRAP, No. 16-1436, — S. Ct. —, 2017 WL 4518553 (U.S. Oct. 10, 2017). On October 24, 2017, the Supreme Court vacated our opinion in Hawai‘i I on the same grounds. See Trump v. Hawai‘i, No. 16-1540, — S. Ct. —, 2017 WL 4782860 (U.S. Oct. 24, 2017). In vacating our prior decision as moot, the Supreme Court explicitly noted that it expressed no view on the merits of the case. See id. B. Plaintiffs’ Third Amended Complaint On October 10, 2017, Plaintiffs sought to amend their complaint to include allegations related to the Proclamation. The third amended complaint includes statutory claims for violations of the INA, the Religious Freedom Restoration Act, and the Administrative Procedure Act, as well as constitutional claims for violations of the Establishment and Free Exercise Clauses of the First Amendment and the equal protection guarantees of the Fifth Amendment’s Due Process Clause. Plaintiffs also moved for a temporary restraining order; after expedited briefing, the district court granted the motion on October 17, 2017. Hawai’i TRO, 2017 WL 4639560, at *1. Relying on our now-vacated opinion in Hawai‘i I, the district court found that the Proclamation suffered from the same deficiencies as EO-2. Id. at *1, *9–13. At the parties’ request, the district court converted the temporary restraining order into a preliminary injunction on October 20, 2017, rendering it an 6 appealable order. Hawai’i v. Trump, No. CV 17-00050 DKW-KSC (D. Haw. Oct. 20, 2017), ECF No. 390 (order entering preliminary injunction). The Government timely appealed. During the pendency of this appeal, we partially stayed the district court’s preliminary injunction “except as to foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Hawai‘i v. Trump, No. 17-17168, 2017 WL 5343014 (9th Cir. Nov. 13, 2017). On December 4, 2017, the Supreme Court granted the Government’s request for a complete stay pending review of the district court’s preliminary injunction. Trump v. Hawai‘i, No. 17A550, — S. Ct. — (Dec. 4, 2017). C. The Proclamation The Proclamation derives its purpose from the President’s belief that he “must act to protect the security and interests of the United States.” 82 Fed. Reg. at 45,161. In furtherance of this goal, the Proclamation imposes indefinite and significant restrictions and limitations on entry of nationals from eight countries whose information-sharing and identity-management protocols have been deemed “inadequate.” Id. at 45,162–67. The Proclamation notes that screening and vetting protocols and procedures play a critical role in preventing terrorist attacks and other public safety threats by enhancing the Government’s ability to “detect foreign nationals who may commit, aid, or support acts of terrorism.” Id. at 7 45,162. Thus, the Proclamation concludes, “absent the measures set forth in th[e] proclamation, the immigrant and nonimmigrant entry into the United States of persons described in section 2 of th[e] proclamation [will] be detrimental to the interests of the United States.” Id. at 45,161–62. The President selected eight countries for inclusion in the Proclamation based on a “worldwide review” conducted under the orders of EO-2. Id. at 45,161, 45,163–64. As part of that review, the Secretary of the Department of Homeland Security established global requirements for information sharing “in support of immigration screening and vetting” that included a comprehensive set of criteria on the information-sharing practices, policies, and capabilities of foreign governments. Id. at 45,161–63. The Secretary of State then “engaged with the countries reviewed in an effort to address deficiencies and achieve improvements.” Id. at 45,161. The Secretary of Homeland Security, after consultation with the Secretary of State and the Attorney General, ultimately identified 16 countries as “inadequate” based on “an analysis of their identity-management protocols, information-sharing practices, and risk factors.” Id. at 45,163. An additional 31 countries were deemed “at risk” of becoming “inadequate.” Id. Countries were classified as “inadequate” based on whether they met the “baseline” developed by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence. Id. at 45,162. The 8 baseline incorporated three categories of criteria: 1) identity-management information; 2) national security and public-safety information; and 3) national security and public-safety risk assessment. Id. Identity-management information ensures that foreign nationals seeking to enter the United States are who they claim to be. Id. This category “focuses on the integrity of documents required for travel to the United States,” including whether the country issues passports with embedded data to confirm identity, reports lost and stolen passports, and provides additional identity-related information when requested. Id. National security and public-safety information includes whether the country “makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request,” whether it provides identity document exemplars, and whether the country “impedes the United States Government’s receipt of information about passengers and crew traveling to the United States.” Id. Finally, national security and public-safety risk assessment focuses on whether the country is “a known or potential terrorist safe haven,” whether the country participates in the Visa Waiver Program, and whether the country “regularly fails to receive its nationals” following their removal from the United States. Id. at 45,162–63. After a “50-day engagement period to encourage all foreign governments . . . to improve their performance,” the Secretary of Homeland Security ultimately determined that Chad, Iran, Libya, North Korea, Syria, 9 Venezuela, and Yemen continued to be “inadequate” based on their identity- management protocols, information-sharing practices, and risk factors.3 Id. at 45,163. The Secretary of Homeland Security also determined that Iraq did not meet the baseline requirements, but concluded that entry restrictions and limitations were not warranted because of the “close cooperative relationship between the United States and the democratically elected government of Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combating the Islamic State of Iraq and Syria (ISIS).” Id. On September 15, 2017, the Secretary of Homeland Security submitted a report to the President recommending entry restrictions for nationals from seven countries “determined to be ‘inadequate’ in providing such [requested] information and in light of the other factors discussed in the report.” Id. After consultation with “appropriate Assistants to the President and members of the Cabinet, including the Secretaries of State, Defense, and Homeland Security, and the Attorney General” and “accounting for the foreign policy, national security, and 3 The Proclamation does not include the other thirty-nine countries deemed either “inadequate” or “at risk” of becoming “inadequate.” See 82 Fed. Reg. at 45,163. As the district court noted, “the explanation for how the Administration settled on the list of eight countries is obscured.” Hawaiʻi TRO, 2017 WL 4639560, at *11 n.16. This is due, in large part, to the fact that no court has been able to consider— or even view—the DHS report in question. 10 counterterrorism objectives of the United States,” the President decided to “restrict and limit the entry of nationals of 7 countries found to be ‘inadequate’”: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. Id. at 45,164. And although Somalia “generally satisfies” the information-sharing requirements of the baseline, the President also imposed entry restrictions and limitations on Somalia nationals because of “its government’s inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory.” Id. The President restricted entry of all immigrants from seven of the eight countries, and adopted “a more tailored approach” to the entry of nonimmigrants. Id. at 45,164–65. Section 2’s challenged country restrictions and proffered rationales are as follows: Chadian nationals may not enter as immigrants or nonimmigrants on business, tourist, or business/tourist visas because, although Chad is “an important and valuable counterterrorism partner of the United States, and . . . . has shown a clear willingness to improve,” it “does not adequately share public-safety and terrorism-related information,” and several terrorist groups are active within Chad or the surrounding region. Id. at 45,165. Iranian nationals may not enter as immigrants or nonimmigrants except under valid student and exchange visitor visas, and such visas are subject to 11 “enhanced screening and vetting.” Id. The Proclamation notes that “Iran regularly fails to cooperate with the United States Government in identifying security risks, fails to satisfy at least one key risk criterion, is the source of significant terrorist threats, and fails to receive its nationals” following final orders of removal from the United States. Id. The entry of Libyan nationals as immigrants and as nonimmigrants on business, tourist, or business/tourist visas is suspended because, although Libya “is an important and valuable counterterrorism partner,” it “faces significant challenges in sharing several types of information, including public-safety and terrorism-related information,” “has significant deficiencies in its identity- management protocols,” does not “satisfy at least one key risk criterion,” has not been “fully cooperative” in receiving its nationals after their removal from the United States, and has a “substantial terrorist presence” within its territory. Id. at 45,165–66. The entry of all Syrian nationals—on immigrant and non-immigrant visas alike—is suspended because “Syria regularly fails to cooperate with the United States Government in identifying security risks, is the source of significant terrorist threats, and has been designated by the Department of State as a state sponsor of terrorism.” Id. at 45,166. Syria also has “significant inadequacies in identity- 12 management protocols, fails to share public-safety and terrorism information, and fails to satisfy at least one key risk criterion.” Id. Yemeni nationals may not enter the United States as immigrants or nonimmigrants on business, tourist, or business/tourist visas because despite being “an important and valuable counterterrorism partner,” Yemen “faces significant identity-management challenges, which are amplified by the notable terrorist presence within its territory.” Id. at 45,166–67. Somali nationals may not enter the United States as immigrants, and all nonimmigrant visa adjudications and entry decisions for Somali nationals are subject to “additional scrutiny.” Id. at 45,167. Although Somalia satisfies information-sharing requirements, it “has significant identity-management deficiencies” and a “persistent terrorist threat also emanates from Somalia’s territory.” Id. These restrictions apply to foreign nationals of the affected countries outside the United States who do not hold valid visas as of the effective date and who do not qualify for a visa under § 6(d)4 of the Proclamation. Id. Suspension of entry does not apply to lawful permanent residents of the United States; foreign nationals 4 Section 6(d) of the Proclamation permits individuals whose visas were marked revoked or canceled as a result of EO-1 to obtain “a travel document confirming that the individual is permitted to travel to the United States and seek entry under the terms” of the revoked or canceled visa. 82 Fed. Reg. at 45,171. 13 who are admitted, paroled, or have a non-visa document permitting them to travel to the United States and seek entry valid or issued on or after the effective date of the Proclamation; any dual national traveling on a passport issued by a non- designated country; any foreign national on a diplomatic visa; any refugee already admitted to the United States; or any individual granted asylum, withholding of removal, advance parole, or Convention Against Torture protection. Id. at 45,167– 68. Further, a consular officer, the Commissioner of U.S. Customs and Border Protection, or the Commissioner’s designee “may, in their discretion, grant waivers on a case-by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended or limited if such foreign nationals demonstrate that waivers would be appropriate and consistent” with certain specified guidelines. Id. at 45,168. II. Justiciability We first address several of the same justiciability arguments that we found unpersuasive in Washington v. Trump and Hawai‘i I. Once more, we reject the Government’s contentions. The Proclamation cannot properly evade judicial review. A. Ripeness 14  The Government argues that Plaintiffs’ claims are speculative and not ripe for adjudication until a specific applicant is denied a visa.5 We reject this argument. We conclude that the issues in this case are “fit for review,” and that significant hardship to Plaintiffs would result from “withholding court consideration” at this point. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 812 (2003). “Ripeness is peculiarly a question of timing, designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1122 (9th Cir. 2009) (alteration and internal quotation marks omitted) (quoting Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000)). This case does not concern mere abstract disagreements. Instead, Plaintiffs challenge the Proclamation as implemented by the Department of State and the Department of Homeland Security. That is permissible. Under the traditional “pragmatic” approach to finality, an order may be immediately reviewable even if no “particular action [has been] brought against a particular [entity].” U.S. Army 5 The Government does not challenge Plaintiffs’ Article III standing on appeal. Nonetheless, we “have an obligation to consider Article III standing independently, as we lack jurisdiction when there is no standing.” Day v. Apoliona, 496 F.3d 1027, 1029 n.2 (9th Cir. 2007). For the reasons set forth in the district court’s order, we conclude that Plaintiffs have Article III standing. See Hawaiʻi TRO, 2017 WL 4639560, at *4–7. 15 Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1815 (2016) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 150 (1967)). Moreover, contrary to the Government’s position, the Proclamation’s waiver provisions are not a “sufficient safety valve” and do not mitigate the substantial hardships Plaintiffs have already suffered and will continue to suffer due to the Proclamation. Washington, 847 F.3d at 1168–69. Plaintiff Muslim Association of Hawaii, for example, has already lost members as a result of the Proclamation and its predecessors, and expects to lose more. The mere possibility of a discretionary waiver does not render Plaintiffs’ injuries “contingent [on] future events that may not occur.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks omitted) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–81 (1985)). “[W]ithholding court consideration” at this juncture would undoubtedly result in further hardship to Plaintiffs. See Nat’l Park Hosp. Ass’n, 538 U.S. at 808. We therefore conclude that Plaintiffs’ claims are ripe for review. B. Doctrine of Consular Nonreviewability As in the litigation over EO-1 and EO-2, the Government contends that we are precluded from reviewing the Proclamation by the consular nonreviewability doctrine. Under that doctrine, “the consular official’s decision to issue or withhold a visa is not subject either to administrative or judicial review.” Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986). In other words, “it is not 16 within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (emphasis added). Although the political branches’ power to exclude aliens is “largely immune from judicial control,” it is not entirely immune; such decisions are still subject to “narrow judicial review.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (citations omitted). Moreover, this case is not about individual visa denials, but instead concerns “the President’s promulgation of sweeping immigration policy.” Washington, 847 F.3d at 1162. Reviewing the latter “is a familiar judicial exercise,” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012); courts do not hesitate to reach “challenges to the substance and implementation of immigration policy.” Washington, 847 F.3d at 1163. Although “[t]he Executive has broad discretion over the admission and exclusion of aliens, [] that discretion is not boundless. It extends only as far as the statutory authority conferred by Congress and may not transgress constitutional limitations. It is the duty of the courts, in cases properly before them, to say where those statutory and constitutional boundaries lie.” Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986), aff’d by an equally divided court, 484 U.S. 1 (1987). The Government’s arguments to the contrary are foreclosed by Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187–88 (1993). In Sale, the Supreme 17 Court reviewed on the merits whether the President had violated the INA and the United States’ treaty obligations by invoking his authority under 8 U.S.C. § 1182(f) to “suspend[] the entry of undocumented aliens from the high seas.” Id. at 160. By reaching the merits, Sale necessarily first decided that the Court had jurisdiction to review whether the President’s orders under the color of § 1182(f) were ultra vires. See id. at 187–88. As in Sale, here we determine whether the Proclamation goes beyond the limits of the President’s power to restrict alien entry. Because Sale did not address the Court’s jurisdiction explicitly, the Government speculates that the Supreme Court “could have decided it was unnecessary to” reach this issue, “given that the Court agreed with the government on the merits.” We disagree. Instead, the argument “that a court may decide [questions on the merits] before resolving Article III jurisdiction” is “readily refuted.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998). “Without jurisdiction the court cannot proceed at all in any cause.” Id. at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)). “On every writ of error or appeal, the first and fundamental question is that of jurisdiction . . . .” Id. (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)). While it is true that “drive-by jurisdictional rulings . . . have no precedential effect,” Sale was not a case where jurisdiction “had been assumed by the parties” and so went unaddressed. Id. at 91. To the contrary, as the Government concedes, the parties 18 in Sale thoroughly briefed and debated this issue. See U.S. Br. 13–18 (No. 92- 344); Resp. Br. 50–58 (No. 92-344); Reply Br. 1–4 (No. 92-344). Judicial review of the legality of the Proclamation respects our constitutional structure and the limits on presidential power. The consular nonreviewability doctrine arose to honor Congress’s choices in setting immigration policy—not the President’s. See Sing v. United States, 158 U.S. 538, 547 (1895). This doctrine shields from judicial review only the enforcement “through executive officers” of Congress’s “declared [immigration] policy,” id., not the President’s rival attempt to set policy. The notion that the Proclamation is unreviewable “runs contrary to the fundamental structure of our constitutional democracy.” 6 Washington, 847 F.3d at 1161. We have jurisdiction to review such an action, and we do so here. C. Cause of Action and Statutory Standing 6 The Government argues that the President, at any time and under any circumstances, could bar entry of all aliens from any country, and intensifies the consequences of its position by saying that no federal court—not a federal district court, nor our court of appeals, nor even the Supreme Court itself—would have Article III jurisdiction to review that matter because of the consular nonreviewability doctrine. United States Court of Appeals for the Ninth Circuit, 17-17168 State of Hawaii v. Donald Trump, YouTube (Dec. 7, 2017) at 13:01– 17:33, https://www.youtube.com/watch?v=9Q0p_B40Pa8. Particularly in the absence of an explicit jurisdiction-stripping provision, we doubt whether the Government’s position could be adopted without running roughshod over the principles of separation of powers enshrined in our Constitution. 19  The Government also contends that Plaintiffs’ statutory claims are unreviewable for lack of a cause of action and lack of statutory standing. We disagree. 1. APA Cause of Action We begin first by examining whether Plaintiffs’ claims are reviewable under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Although the President’s actions fall outside the scope of direct review, see Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992), “[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President’s directive,” id. at 828 (Scalia, J., concurring); see also Chamber of Commerce v. Reich, 74 F.3d 1322, 1324, 1328 (D.C. Cir. 1996) (holding that the court could review whether an executive order conflicted with a federal statute where plaintiffs had sought to enjoin executive branch officials implementing the order). Here, Plaintiffs bring suit not just against the President, but also against the entities charged with carrying out his instructions: the Department of State and the Department of Homeland Security. Further, because these agencies have “consummat[ed]” their implementation of the Proclamation, from which “legal consequences will flow,” their actions are “final” 20 and therefore reviewable under the APA.7 Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citation and internal quotation marks omitted). Finally, the Government argues that the APA precludes review of actions committed to “agency discretion by law,” 5 U.S.C. § 701(a)(2), and that the Proclamation is such an action. Plaintiffs counter that the Proclamation is not an unreviewable discretionary action, but rather is cabined by discernible constitutional and statutory limits. We are not persuaded by the Government’s characterization of the Proclamation as an action committed to the Executive’s discretion. This exception to the presumption of judicial review is “very narrow,” applying only where “statutes are drawn in such broad terms that . . . there is no law to apply.” Heckler v. Chaney, 470 U.S. 821, 830 (1985) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971)). It does not apply where, as here, a court is tasked with reviewing whether an executive action has exceeded statutory authority. See Assiniboine & Sioux Tribes v. Bd. of Oil & Gas Conservation, 792 F.2d 782, 791–92 (9th Cir. 1986) (collecting cases). 2. Zone of Interests The Government additionally argues that even if an APA cause of action exists, Plaintiffs cannot avail themselves of it because they do not fall within the 7 The Government contends that there is no “final” agency action here because Plaintiffs’ claims are unripe. For the reasons discussed previously, we reject this argument. 21 INA’s zone of interests. Once again, we are tasked with determining whether Plaintiffs’ interests “fall within the zone of interests protected by the law invoked.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1388 (2014) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). We conclude that Dr. Elshikh’s challenge to the Proclamation falls within the INA’s zone of interests. He asserts that the Proclamation prevents his brothers- in-law from reuniting with his family. See Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469, 471–72 (D.C. Cir. 1995) (“The INA authorizes the immigration of family members of United States citizens and permanent resident aliens. In originally enacting the INA, Congress implemented the underlying intention of our immigration laws regarding the preservation of the family unit. Given the nature and purpose of the statute, the resident appellants fall well within the zone of interest Congress intended to protect.” (internal citations and alterations omitted)), vacated on other grounds, 519 U.S. 1 (1996). John Does 1 and 2 fall within the same zone of interest, alleging that they will be separated from family members—a son-in-law and a mother, respectively. The Government maintains that these interests are inadequate because a relative of an alien seeking admission has no right to participate in visa proceedings. Yet the Supreme Court has reviewed the merits of cases brought by U.S. residents with a specific interest in the entry of a foreigner, as have we. See, 22 e.g., Kerry v. Din, 135 S. Ct. 2128, 2131 (2015) (involving a challenge by U.S. citizen to denial of her husband’s visa); Kleindienst v. Mandel, 408 U.S. 753, 756– 60 (1972) (arising from a challenge by American professors to denial of visa to journalist invited to speak at academic events); Cardenas v. United States, 826 F.3d 1164, 1167 (9th Cir. 2016) (addressing a U.S. citizen’s challenge to denial of husband’s visa). In a case similar to the one before us, Legal Assistance for Vietnamese Asylum Seekers v. Department of State, the D.C. Circuit found that visa sponsors had standing to sue when they alleged that the State Department’s refusal to process visa applications resulted in an injury to the sponsors. 45 F.3d at 471–73. Likewise, Hawai‘i’s “efforts to enroll students and hire faculty members who are nationals from the six designated countries fall within the zone of interests of the INA.” Hawaiʻi I, 859 F.3d at 766. The INA clearly provides for the admission of nonimmigrant students into the United States. See 8 U.S.C. § 1101(a)(15)(F) (identifying students qualified to pursue a full course of study); 8 C.F.R. § 214.2(f) (providing the requirements for nonimmigrant students, including those in colleges and universities). The INA also provides that nonimmigrant scholars and teachers may be admitted into the United States. See, e.g., 8 U.S.C. § 1101(a)(15)(J) (identifying students, scholars, trainees, and professors in fields of specialized knowledge or skill, among others); id. § 23 1101(a)(15)(H) (identifying aliens working in specialty occupations); id. § 1101(a)(15)(O) (identifying aliens with extraordinary abilities in the sciences, arts, education, business, or athletics). As we have said before, “[t]he INA leaves no doubt” that Hawai‘i’s interests in “student- and employment-based visa petitions for its students and faculty are related to the basic purposes of the INA.” Hawaiʻi I, 859 F.3d at 766. Further, the Muslim Association of Hawai‘i (the “Association”) alleges that its members will suffer harms such as separation from their families, and that the Association itself will suffer the loss of its members if it is not granted a preliminary injunction. Once again, we conclude that “Plaintiffs’ claims of injury as a result of the alleged statutory violations are, at the least, ‘arguably within the zone of interests’ that the INA protects” and therefore judicially reviewable. Id. at 767 (quoting Bank of Am. Corp. v. City of Miami, — U.S. —, 137 S. Ct. 1296, 1303 (2017) (citation omitted) (emphasis added). 3. Equitable Cause of Action Even if there were no “final agency action” review under the APA, courts have also permitted judicial review of presidential orders implemented through the 24 actions of other federal officials.8 This cause of action, which exists outside of the APA, allows courts to review ultra vires actions by the President that go beyond the scope of the President’s statutory authority. See Reich, 74 F.3d at 1327–28 (citing Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108, 110 (1902) and Leedom v. Kyne, 358 U.S. 184, 188–89 (1958)) (permitting challenge to an Executive Order promulgated by the president and implemented by the Secretary of Labor, despite the lack of a final agency action under the APA); see also Duncan v. Muzyn, 833 F.3d 567, 577–79 (6th Cir. 2016); R.I. Dep’t Envtl. Mgmt. v. United States, 304 F.3d 31, 40–43 (1st Cir. 2002); cf. Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015) (citing McAnnulty for the proposition that federal courts may enjoin “violations of federal law by federal officials”). When, as here, Plaintiffs challenge the President’s statutory authority to issue the Proclamation, we are provided with an additional avenue by which to review these claims. Having concluded that Plaintiffs’ claims are justiciable, we now turn to the district court’s preliminary injunction. III. The Preliminary Injunction 8 The Supreme Court has decided the merits of such claims, including the specific claim that an action exceeded the authority granted under § 1182(f). See Sale, 509 U.S. at 187–88; see also Dames & Moore v. Regan, 453 U.S. 654 (1981). 25  A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20. We may affirm the district court’s entry of the preliminary injunction “on any ground supported by the record.” Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1159 (9th Cir. 2011). A. Likelihood of Success on the Merits We consider first whether Plaintiffs are likely to succeed on the merits. In so doing, we consider four arguments9 advanced by Plaintiffs: (1) the President has exceeded his congressionally delegated authority under 8 U.S.C. § 1182(f); (2) the President has failed to satisfy § 1182(f)’s requirement that prior to suspending entry, the President must find that entry of the affected aliens would be detrimental to the interests of the United States; (3) the Proclamation’s ban on immigration from the designated countries violates 8 U.S.C. § 1152(a)(1)(A)’s prohibition on nationality-based discrimination; and (4) the President lacks the authority to issue 9 As we explain below, we decline to reach Plaintiffs’ arguments other than those listed here. 26 the Proclamation in the absence of a statutory grant. We address each in turn. 1. Scope of Authority under § 1182(f) In determining whether the President has the statutory authority to issue the Proclamation under 8 U.S.C. § 1182(f), we begin with the text. See Sale, 509 U.S. at 171; Haig v. Agee, 453 U.S. 280, 289–90 (1981). But our inquiry does not end there. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000); see also United States v. Witkovich, 353 U.S. 194, 199 (1957) (declining to “read in isolation and literally” an immigration statute that “appear[ed] to confer upon the Attorney General unbounded authority”). In Brown & Williamson, the Court looked beyond the “particular statutory provision in isolation,” and interpreted the statute to create a “symmetrical and coherent regulatory scheme.” 529 U.S. at 132–33. The Court thus undertook a holistic review, which entailed examining the statute’s legislative history, see id. at 146–47, “congressional policy,” id. at 139, and “common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude,” id. at 133. Taking guidance from the Court’s instructions in Brown & Williamson to look beyond the challenged “provision in isolation,” id. at 132, we conclude that the Proclamation is inconsistent not just with the text of § 1182(f), but with the statutory framework as a whole, legislative history, and prior executive practice. 27 Although no single factor may be dispositive, these four factors taken together strongly suggest that Plaintiffs are likely to succeed on their claim that the President has exceeded his delegated authority under section 1182(f). We discuss each factor in greater detail below. a. Statutory Text We turn first to the text of § 1182(f). The INA grants the President the power to “suspend the entry of . . . any class of aliens” “for such period as he shall deem necessary.” 8 U.S.C. § 1182(f) (emphasis added). We note at the outset that broad though the provision may be, the text does not grant the President an unlimited exclusion power. Congress’s choice of words is suggestive, at least, of its hesitation in permitting the President to impose entry suspensions of unlimited and indefinite duration. “The word ‘suspend’ connotes a temporary deferral.” Hoffman ex rel. N.L.R.B. v. Beer Drivers & Salesmen’s Local Union No. 888, 536 F.2d 1268, 1277 (9th Cir. 1976) (citing Webster’s Third New International Dictionary (1966) and Bouvier’s Law Dictionary (3d ed. 1914)). “[T]he word ‘period,’” in turn, “connotes a stated interval of time commonly thought of in terms of years, months, and days.” United States v. Updike, 281 U.S. 489, 495 (1930). This construction 28 of the term “period” is reinforced by the requirement that it be “necessary.” 10 § 1182(f). At argument, the Government contended that the indefinite duration of the Proclamation’s entry restrictions is consistent with the text of § 1182(f). United States Court of Appeals for the Ninth Circuit, 17-17168 State of Hawaii v. Donald Trump, YouTube (Dec. 7, 2017) at 22:45–23:15. Citing to § 4 of the Proclamation, which provides for a review of the restrictions every 180 days, the Government argued that because the suspensions will be “revisited” twice a year, the Proclamation is less indefinite than President Reagan’s and President Carter’s orders regarding Cubans and Iranians,11 respectively. Id. at 23:04–23:14. This argument is unpersuasive. The Government has repeatedly emphasized that the travel restrictions are necessary to incentivize and pressure foreign governments into improving their information-sharing and identity-management practices. This creates a peculiar situation where the restrictions may persist ad infinitum. To paraphrase a well- 10 As we discuss later, although prior executive orders or proclamations invoking § 1182(f) did not provide for a set end date, they were noticeably narrower in scope than the Proclamation. At the very least, Congress in adopting § 1182(f) likely did not contemplate that an executive order of the Proclamation’s sweeping breadth would last for an indefinite duration. 11 Proclamation 5517, 51 Fed. Reg. 30,470 (Aug. 22, 1986) (Cuba order); Exec. Order 12172, 44 Fed. Reg. 67,947 (Nov. 26, 1979) (Iran order), amended by Exec. Order 12206, 45 Fed. Reg. 24,101 (Apr. 7, 1980). 29 known adage, the Proclamation’s review process mandates that the restrictions will continue until practices improve. The Proclamation’s duration can be considered definite only to the extent one presumes that the restrictions will, indeed, incentivize countries to improve their practices. Where, as here, there is little evidence to support such an assumption, the Proclamation risks producing a virtually perpetual restriction—a result that the plain text of § 1182(f) heavily disfavors for such a far-reaching order.12 b. Statutory Framework We next examine the statutory framework of the INA. Brown & Williamson, 529 U.S. at 133. We first note that the Constitution gives Congress the primary, if not exclusive, authority to set immigration policy. See Arizona v. United States, 567 U.S. 387, 409 (2012) (citing Galvan v. Press, 347 U.S. 522, 531 (1954)); see also Fiallo, 430 U.S. at 792 (“[O]ver no conceivable subject is the legislative power of Congress more complete than it is over the admission of 12 Because issuing indefinite entry restrictions under these circumstances violates § 1182(f), we further view § 1182(f) as prohibiting a series of temporary bans when it appears such serial bans are issued to circumvent the bar on indefinite entry restrictions. See also Brief of T.A., a U.S. Resident of Yemeni Descent, as Amicus Curiae, Dkt. No. 41 at 7–8 (arguing that § 1182(f)’s use of the singular as it relates to “proclamation” and “period” is meaningful and precludes the use of serial bans to bypass the bar on indefinite suspensions, and noting that other provisions in § 1182 specifically use plural nouns to authorize multiple actions by the executive branch). 30 aliens.” (citation and internal quotation marks omitted)); Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320, 340 (1909) (“[T]he authority of Congress over the right to bring aliens into the United States embraces every conceivable aspect of that subject . . . .”). Congress has delegated substantial power in this area to the Executive Branch, but the Executive may not exercise that power in a manner that conflicts with the INA’s finely reticulated regulatory scheme governing the admission of foreign nationals. In line with this principle, the D.C. Circuit has held that the Executive cannot use general exclusionary powers conferred by Congress to circumvent a specific INA provision without showing a threat to public interest, welfare, safety or security that was independent of the specific provision. Abourezk, 785 F.2d at 1057–58. The Abourezk court reasoned that the Executive’s use of the general exclusionary provision to deny entry to members of groups proscribed in the specific provision would “rob [the general provision] of its independent scope and meaning,” render the specific provision superfluous, and conflict with limits that Congress imposed on the use of the specific provision. Id. at 1057. We agree with the D.C. Circuit’s approach and apply it to § 1182(f). We conclude that the Proclamation conflicts with the statutory framework of the INA by indefinitely nullifying Congress’s considered judgments on matters of immigration. The Proclamation’s stated purposes are to prevent entry of terrorists 31 and persons posing a threat to public safety, as well as to enhance vetting capabilities and processes to achieve that goal. See 82 Fed. Reg. at 45,161. Yet Congress has already acted to effectuate these purposes. As for the prevention of entry of terrorists and persons likely to pose public- safety threats, Congress has considered these concerns, and enacted legislation to restrict entry of persons on those specific grounds. Under 8 U.S.C. § 1182(a)(3)(B), any alien who has “engaged in a terrorist activity” is inadmissible,13 unless the Secretary of State determines in his unreviewable discretion that the alien qualifies for a waiver. See id. § 1182(d)(3)(B). With regard to public safety, Congress has created numerous inadmissibility grounds, including an array of crime-related grounds. See, e.g., id. § 1182(a)(2)(A) (crime of moral turpitude or drug offense); § 1182(a)(2)(B) (two or more offenses for which the aggregate sentences were five years or more); § 1182(a)(2)(C) (drug trafficking or benefitting from a relative who recently trafficked drugs); § 1182(a)(2)(D) (prostitution or “commercialized vice”); § 1182(a)(2)(H) (human trafficking); § 1182(a)(2)(I) (money laundering); § 1182(a)(3) (“Security and related grounds”). 13 The term “engaged in a terrorist activity” is comprehensive. For example, “terrorist activity” includes any unlawful use of a weapon or dangerous device “other than for mere personal monetary gain,” and “[e]ngag[ing] in terrorist activity” includes providing “material support” for any “terrorist activity” or terrorist organization. See 8 U.S.C. § 1182(a)(3)(B)(iii)(V)(bb), (a)(3)(B)(iv). 32  With respect to the enhancement of vetting capabilities and processes, we likewise conclude that Congress has considered the reality that foreign countries vary with respect to information-sharing and identity-management practices, as well as terrorism risk. In fact, Congress addressed those concerns in a neighboring section, 8 U.S.C. § 1187 (the Visa Waiver Program or “VWP”), which was amended as recently as 2015 to address the heightened risk of terrorism in certain countries. See Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, Pub. L. No. 114-113, § 203, 129 Stat. 2242, 2989–91. Significantly, many of the criteria used to determine whether a foreign national’s country of origin qualifies for VWP treatment are replicated in the Proclamation’s list of baseline criteria. This includes that the countries use electronic passports, § 1187(a)(3)(B), report lost or stolen passports, § 1187(c)(2)(D), and not provide safe haven for terrorists, § 1187(a)(12)(D)(iii). See 82 Fed. Reg. 45,162. The Proclamation even makes participation in the Visa Waiver Program part of its criteria for evaluating countries. Id. at 45,162–63. The Government argues that the Visa Waiver Program is irrelevant because its “specific purpose” is the “facilitation of travel,” and therefore it does not foreclose the President from addressing the “separate issue of what to do about a country that fails so many criteria that its information-sharing practices and other risk factors are collectively inadequate.” This argument falls short. The Visa 33 Waiver Program’s travel facilitation purpose is notable, but not for the reason advanced by the Government. As we explained above, the Visa Waiver Program utilizes many of the same criteria relied upon by the Proclamation. Congress thus expressly considered the reality that countries vary with respect to information- sharing and identity-management practices, as well as terrorism risk. In response to that reality, Congress could have enacted measures restricting travel from countries with inadequate risk factors, taken no action, or enacted provisions facilitating travel from low-risk countries. In creating the Visa Waiver Program, Congress chose the third approach. In so doing, Congress necessarily determined that the interests of the United States would be better served by facilitating more travel, not less. By heavily restricting travel from the affected countries, the Proclamation thus conflicts with the purpose of the Visa Waiver Program. More broadly, the Government contends that Plaintiffs’ reliance on the statutory framework is misplaced because § 1182(f) empowers the President to issue “supplemental” admission restrictions when he finds that the national interest so warrants. Although true, this merely begs the question of whether the restrictions at issue here are “supplemental.” We conclude that the indefinite suspension of entry of all nationals from multiple countries, absent wartime or exigent circumstances, nullifies rather than “supplement[s]” the existing statutory scheme. The President is not foreclosed from acting to enhance vetting capabilities 34 and other practices in order to strengthen existing immigration law, but must do so in a manner consistent with Congress’s intent. Put another way, the President cannot effectively abrogate existing immigration law while purporting to merely strengthen it; the cure cannot be worse than the disease. Here, the President has used his § 1182(f) and § 1185(a) powers to nullify numerous specific provisions of the INA indefinitely with regard to all nationals of six countries, and has overridden Congress’s legislative responses to the same concerns the Proclamation aims to address. The Executive cannot without assent of Congress supplant its statutory scheme with one stroke of a presidential pen. c. Legislative History The legislative history suggests further limitations on § 1182(f)’s broad grant of authority. Prior to passing the INA, which included § 1182(f), the House of Representatives debated an amendment that would have continued to restrict the President’s authority to suspend immigration only “[w]hen the United States is at war or during the existence of a national emergency proclaimed by the President.” 98 Cong. Rec. 4423 (statement of Rep. Multer).14 Speaking in opposition to the 14 Section 1182(f)’s 1941 predecessor limited the president’s authority to suspend entry of aliens only to times of war or national emergency. See Act of June 21, 1941, 55 Stat. 252, 252–53. In anticipation of future immigration reform, the Senate Committee on the Judiciary published a comprehensive report in 1950 on the state of immigration laws in the country. See S. Rep. No. 81-1515, at 1–2 (1950). Although the report states that the committee was considering a provision that would “permit the President to suspend any and all immigration whenever he 35 ultimately unsuccessful amendment, the sponsor of the bill urged that § 1182(f)’s broad language was “absolutely essential,” because [W]hen there is an outbreak of an epidemic in some country, whence these people are coming, it is impossible for Congress to act. People might conceivably in large numbers come to the United States and bring all sorts of communicable diseases with them. More than that, suppose we have a period of great unemployment? In the judgment of the committee, it is advisable at such times to permit the President to say that for a certain time we are not going to aggravate that situation. Id. (statement of Rep. Walter) (emphasis added). Although Representative Walter and the bill’s supporters did not “intend[] [their] list of examples to be exhaustive,” Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 649 (1990), “it is significant that the example[s] Congress did give” all share the common trait of exigency. Moran v. London Records, Ltd., 827 F.2d 180, 183 (7th Cir. 1987). Proponents of § 1182(f) deliberately pinned the provision to examples where it would be difficult, if not impossible, for Congress to react in a timely manner, thus necessitating swift presidential action.15 The finds such action to be desirable in the best interests of the country,” it is unclear whether the report’s brief statement was in reference to what would eventually become § 1182(f) two years later. Id. at 381. More importantly, as Plaintiffs point out, none of the bill’s supporters affirmatively voiced such a broad interpretation of § 1182(f) when pressed on the matter by members of the opposition. 15 We note that hearings in 1970 and 1977 produced testimony from the Department of State that § 1182(f) (or § 212(f) of the INA) could be traced to “health prohibitions” even though the text does not explicitly limit executive use to exigencies, health or otherwise. See, e.g., United States-South African Relations: South Africa’s Visa Policy: Hearing Before the Subcomm. on Africa & Int’l Org. of 36 legislative history, then, suggests that despite § 1182(f)’s facially broad grant of power,16 the Proclamation—which cites to no exigencies, national or otherwise, and does not respond to a situation Congress would be ill-equipped to address— falls outside of the boundaries Congress set. d. Prior Executive Practice the Comm. on Int’l Relations H. Rep., 95th Cong. 10–11 (1977) (statement of Hon. Barbara M. Watson, Administrator, Bureau of Security and Consular Affairs, Dep’t of State). Considering the strength of legislative history supporting use of § 1182(f) to restrict entry during epidemics, it is noteworthy that a 2014 Congressional Research Service report cautioned that the provision could only “potentially” be used to prevent entry of “foreign nationals traveling from a particular country or region from which there has been an Ebola outbreak.” See Sarah A. Lister, Preventing the Introduction and Spread of Ebola in the United States: Frequently Asked Questions, Cong. Res. Serv. 3 (Dec. 5, 2014). The report noted that § 1182(f) had “never been employed so broadly” before. Id. 16 Several congressmen did express concerns prior to enactment that § 1182(f) would give the President “an untrammeled right, an uninhibited right to suspend immigration entirely.” 98 Cong. Rec. 4423 (statement of Rep. Celler). Their “fears and doubts,” however, “are no authoritative guide to the construction of legislation[,] [because] [i]n their zeal to defeat a bill, [opponents to a bill] understandably tend to overstate its reach.” Bryan v. United States, 524 U.S. 184, 196 (1998) (internal citations and quotation marks omitted). Moreover, there is some evidence that supporters of § 1182(f) and its predecessor provision believed the opposition’s concerns unreasonably presumed executive abuse of power. See 87 Cong. Rec. 5049 (1941) (statement of Rep. Bloom) (dismissing a representative’s concerns because “the gentleman is figuring on something that the President would not do”); see also 98 Cong. Rec. 4424 (statement of Rep. Halleck) (“I take it that the gentleman would not be concerned [about section 1182(f)] if he were sure he would always have a President that could not do any wrong”). 37  Notwithstanding the aforementioned factors, the Government argues that “[h]istorical practice confirms the breadth of, and deference owed to, the President’s exercise of authority under Sections 1182(f) and 1185(a)(1).” We pass no judgment on the legality or appropriateness of the Executive’s past practice, but we consider such practice to the extent it bears on congressional acquiescence. See Abourezk, 785 F.2d at 1055 (“[E]vidence of congressional acquiescence (or the lack thereof) in an administrative construction of the statutory language during the thirty-four years since the current act was passed could be telling.”); see also Zemel v. Rusk, 381 U.S. 1, 17–18 (1965) (“We have held . . . and reaffirm today, that the 1926 [Passport] Act must take its content from history: it authorizes only those passport refusals and restrictions ‘which it could fairly be argued were adopted by Congress in light of prior administrative practice.’” (quoting Kent v. Dulles, 357 U.S. 116, 128 (1958))). The Government is correct that presidents have suspended the entry of foreign nationals in various foreign policy and national security settings, but we nevertheless conclude that the Proclamation and its immediate predecessors, EO-1 and EO-2, stand apart in crucial respects. First, out of the forty-three proclamations or orders issued under § 1182(f) prior to EO-1, forty-two targeted only government officials or aliens who engaged in specific conduct and their associates or relatives. See Kate M. Manuel, Cong. Research Serv., R44743, 38 Executive Authority to Exclude Aliens: In Brief 6–10, (2017) (listing prior § 1182(f) proclamations and orders). Only one § 1182(f) proclamation suspended entry of all nationals of a foreign country. Proclamation 5517, issued in 1986, suspended entry of Cuban nationals as immigrants in response to the Cuba government’s own suspension of “all types of procedures regarding the execution” of an immigration agreement between the United States and Cuba. 51 Fed. Reg. 30,470 (Aug. 22, 1986). In addition, President Carter delegated authority under § 1185(a) to the Secretary of State and the Attorney General to prescribe limitations governing the entry of Iranian nationals, but did not ban Iranian immigrants outright. See Exec. Order 12172, 44 Fed. Reg. 67,947 (Nov. 26, 1979), amended by Exec. Order 12206, 45 Fed. Reg. 24,101 (Apr. 7, 1980). These isolated instances, which applied to a single country each and were never passed on by a court, cannot sustain the weight placed on them by the Government. See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 169 (2001) (“Although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care.”). Moreover, unlike the Proclamation, the Cuba and Iran orders were intended to address specific foreign policy concerns distinct from general immigration concerns already addressed by Congress. The same holds true for the vast majority 39 of prior § 1182(f) suspensions. See, e.g., Executive Order 13606, 77 Fed. Reg. 24,571 (Apr. 22, 2012) (suspending entry of persons who facilitated cyber-attacks and human rights abuses by the Syrian or Iranian governments); Proclamation 6925, 61 Fed. Reg. 52,233 (Oct. 3, 1996) (suspending entry of persons “who formulate, implement, or benefit from policies that impede Burma’s transition to democracy, and the immediate family members of such persons”); Proclamation 6569, 58 Fed. Reg. 31,897 (June 3, 1993) (suspending entry of persons “who formulate, implement, or benefit from policies that impede the progress of the negotiations designed to restore constitutional government to Haiti, and the immediate family members of such persons”). The only prior entry suspension lacking a foreign policy or national security purpose distinct from general immigration concerns is found in President Reagan’s High Seas Interdiction Proclamation and its implementing executive orders. That Proclamation suspended “entry of undocumented aliens from the high seas” and ordered that such entry “be prevented by the interdiction of certain vessels carrying such aliens.” Proclamation 4865, 46 Fed. Reg. 48,107 (Sep. 29, 1981). Consequently, Proclamation 4865 and its implementing executive orders, unlike the present Proclamation, applied by their terms almost entirely to aliens who were 40 already statutorily inadmissible.17 See id.; Exec. Order 12324, 46 Fed. Reg. 48,109 (Sep. 29, 1981); Exec. Order 12807, 57 Fed. Reg. 23,133 (May 24, 1992). We recognize that presidents ordinarily may use—and have used—§ 1182(f) to suspend the entry of aliens who might otherwise be admissible under the INA. But when, as here, a presidential proclamation addresses only matters of immigration already passed upon by Congress, the President’s § 1182(f) authority is at its nadir. The High Seas Interdiction suspensions are consistent with this principle because they apply predominantly to otherwise inadmissible aliens. In contrast, by suspending entry of a class of 150 million potentially admissible aliens, the Proclamation sweeps broader than any past entry suspension and indefinitely nullifies existing immigration law as to multiple countries. The Proclamation does so in the name of addressing general public-safety and terrorism threats, and what it deems to be foreign countries’ inadequate immigration-related practices— concerns that Congress has already addressed. 17 Under 8 U.S.C. § 1182(a)(7)(A)(i)(I), an alien who does not possess “a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document” is inadmissible. The High Seas Interdiction suspensions did, however, affect some aliens who could have become admissible insofar as the suspensions prevented refugees fleeing persecution from reaching United States territorial waters. See Sale, 509 U.S. at 187–88 (holding that barring the entry of refugees outside the territorial waters of the United States did not violate the INA or the United Nations Convention Relating to the Status of Refugees). 41  We conclude that the Executive’s past practice does not support the Government’s position. Instead, such practice merely confirms that the Proclamation, like EO-2, “is unprecedented in its scope, purpose, and breadth.” Hawai‘i I, 859 F.3d at 779. e. Constitutional Avoidance and Separation of Powers Principles of separation of powers further compel our conclusion that the Proclamation exceeds the scope of authority delegated to the President under § 1182(f). It is a bedrock principle of statutory interpretation that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); see also INS v. St. Cyr, 553 U.S. 289, 300 (2001) (“[W]e are obligated to construe the statute to avoid [serious constitutional] problems.”). Here, a conclusion that the Proclamation does not exceed the President’s delegated authority under § 1182(f) would raise “serious constitutional problems” and should thus be avoided. See DeBartolo, 485 U.S. at 575. Reading § 1182(f) to permit the Proclamation’s sweeping exercise of authority would effectively render the statute void of a requisite “intelligible principle” delineating the “general policy” to be applied and “the boundaries of th[e] delegated authority,” Mistretta v. United 42 States, 488 U.S. 361, 372–73 (1989). Without any meaningful limiting principles,18 the statute would constitute an invalid delegation of Congress’s “exclusive[]” authority, Galvan, 347 U.S. at 531, to formulate policies regarding the entry of aliens. As discussed above, the Proclamation functions as an executive override of broad swaths of immigration laws that Congress has used its considered judgment to enact. If the Proclamation is—as the Government contends—authorized under § 1182(f), then § 1182(f) upends the normal functioning of separation of powers. Even Congress is prohibited from enabling “unilateral Presidential action that either repeals or amends parts of duly enacted statutes.” Clinton v. City of New York, 524 U.S. 417, 439 (1998). This is true even when the executive actions respond to issues of “first importance,” issues that potentially place the country’s “Constitution and its survival in peril.” Id. at 449 (Kennedy, J., concurring). In addressing such critical issues, the political branches still do not “have a somewhat free hand to reallocate their own authority,” as the “Constitution’s structure requires a stability which transcends the convenience of the moment” and was crafted in recognition that “[c]oncentration of power in the hands of a single branch is a threat to liberty.” Id. at 449–50. 18 These limiting principles are primarily found in the text of the statute, but also include the surrounding statutory framework, the legislative history, and prior executive practice. 43  And the Proclamation’s sweeping assertion of authority is fundamentally legislative in nature. Where an action “ha[s] the purpose and effect of altering the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and [an alien], all outside the legislative branch,” the Supreme Court has held that the action is “essentially legislative in purpose and effect” and thus cannot bypass the “single, finely wrought and exhaustively considered, procedure” for enacting legislation.19 INS v. Chadha, 462 U.S. 919, 951–52 (1983). Here, the Proclamation does not merely alter the “legal rights, duties and relations” of a single alien, id. at 952, but rather affects the rights, duties and relations of countless American citizens and lawful permanent residents whose ability to be reunified with, and receive visits from, their family members is inhibited by the Proclamation; the Proclamation also significantly affects numerous officials within the Department of Homeland Security and Department of State. Whereas the House’s action in Chadha “operated . . . to overrule the Attorney General,” id., here the Proclamation would operate to overrule Congress’s “extensive and complex” scheme of immigration laws, Arizona, 567 U.S. at 395, as 19 Although the Government has not explained why the President has thus far failed to ask Congress to enact the Proclamation’s policies by legislation, potential congressional inaction cannot sustain the President’s authority to issue the Proclamation, as “[f]ailure of political will does not justify unconstitutional remedies” like violating the Constitution’s separation of powers. Clinton v. City of New York, 524 U.S. at 499 (Kennedy, J., concurring). 44 they pertain to the eight affected countries and the over 150 million affected individuals. Decades of Supreme Court precedent support reading meaningful limitations into § 1182(f) in order to avoid striking down the statute itself as an unconstitutional delegation. For example, in Zemel v. Rusk, the Court opted to read in limiting principles despite statutory language that, on its face, appeared to grant the Executive complete discretion: “The Secretary of State may grant and issue passports under such rules as the President shall designate and prescribe for and on behalf of the United States.” 381 U.S. at 7–8, 17. By so doing, the Court saved the statute from constituting “an invalid delegation.” Id. at 18. The Court noted that principles of separation of powers still apply even in the field of foreign relations, holding that “simply because a statute deals with foreign relations” does not mean that the statute “can grant the Executive totally unrestricted freedom of choice.” Id. at 17. Similarly, in United States v. Witkovich, the Court—faced with statutory language that “if read in isolation and literally, appears to confer upon the Attorney General unbounded authority”—nonetheless adopted a more “restrictive meaning” in order to avoid the “constitutional doubts” implicated by a “broader meaning.” 353 U.S. at 199. To avoid the inescapable constitutional concerns raised by the broad interpretation the Government urges us to adopt, we interpret § 1182(f) as 45 containing meaningful limitations—limitations that the Proclamation, in effectively rewriting the immigration laws as they pertain to the affected countries, exceeds. After all, “whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law.” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090 (2015). 2. Compliance with § 1182(f) We next turn to whether, even assuming the President did not exceed the scope of his delegated authority under § 1182(f), the Proclamation meets § 1182(f)’s requirement that the President find that the entry of certain persons “would be detrimental to the interests of the United States” prior to suspending their entry. 8 U.S.C. § 1182(f). Although we considered this question in Hawai’i I and ultimately answered it in the negative, 859 F.3d at 770–74, the Proclamation differs from EO-2 in several ways. As we discussed above, the Proclamation’s suspensions of entry apply indefinitely, rather than for only 90 days. Unlike EO-2, the Proclamation developed as a result of a multi-agency review. The justifications for the Proclamation are different, too. The Proclamation puts forth a national security interest in information sharing between other countries and the United States, explains that it imposes its restrictions as an incentive for other countries to meet the United States’ information-sharing protocols, and identifies “tailored” 46 restrictions for each designated country. And the list of affected countries differs from EO-2’s: the Proclamation adds Chad, removes Sudan, and includes two non- majority Muslim countries, North Korea and Venezuela. Although there are some differences between EO-2 and the Proclamation, these differences do not mitigate the need for the President to satisfy § 1182(f)’s findings requirement. Despite our clear command in Hawai‘i I, the Proclamation—like EO-2—fails to “provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.” Id. at 773. In assessing the scope of the President’s statutory authority, we begin with the text. The relevant portion of § 1182(f) states: Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. 8 U.S.C. § 1182(f). While § 1182(f) gives the President broad authority to suspend or place restrictions on the entry of aliens or classes of aliens, this authority is not unlimited. Section 1182(f) expressly requires that the President find that the entry of a class of aliens would be detrimental to the interests of the United States before the aliens in a class are excluded. The use of the word “find” was deliberate. 47 Congress used “find” rather than “deem” in the immediate predecessor to § 1182(f) so that the President would be required to “base his [decision] on some fact,” not on mere “opinion” or “guesses.” 87 Cong. Rec. 5051 (1941) (statements of Rep. Jonkman and Rep. Jenkins). By contrast, the Proclamation summarily concludes: “[A]bsent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States of persons described in section 2 of this proclamation would be detrimental to the interests of the United States.” 82 Fed. Reg. 45,161–62. The Proclamation points out that screening and vetting protocols enhance the Government’s ability to “detect foreign nationals who may commit, aid, or support acts of terrorism and other public-safety threats.” Id. at 45,162. It then asserts that the travel restrictions will encourage the targeted foreign governments to improve their information-sharing and identity-management protocols and practices. The degree of desired improvement is left unstated; there is no finding that the present vetting procedures are inadequate or that there will be harm to our national interests absent the Proclamation’s issuance. In assessing the merits of Plaintiffs’ motion for a preliminary injunction, the district court considered whether the Government had made the requisite findings for the President to suspend the entry of aliens under § 1182(f). Relying on our decision in Hawaiʻi I, the district court concluded that the Government had not. 48 Hawaiʻi TRO, 2017 WL 4639560, at *9–10. Although our prior decision in Hawai‘i I has since been vacated as moot, the Supreme Court “express[ed] no view on the merits” in ordering vacatur. Trump, 2017 WL 4782860, at *1. We therefore adopt once more the position we articulated in Hawai‘i I that § 1182(f) requires entry suspensions to be predicated on a finding of detriment to the United States. 859 F.3d at 773. The Government argues that the “detailed findings” in the Proclamation satisfy the standard we set forth in Hawai‘i I. Plaintiffs respond that the findings were inadequate because § 1182(f) expressly requires (1) “‘find[ings]’ that support the conclusion that admission of the excluded aliens would be ‘detrimental,’” and (2) “the harm the President identifies must amount to a ‘detriment to the interests of the United States.’” We agree with Plaintiffs. The Proclamation makes no finding whatsoever that foreign nationals’ nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.20 Nor does it contain a finding that the nationality of the covered individuals alone renders their entry into the United States on certain forms of visas detrimental to the interests of the United States. As such, there is no stated connection between the scope of the restriction imposed 20 Rather, a declaration from former national security advisors—quoting a study from the Department of Homeland Security—states: “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.” 49 and a finding of detriment that the Government seeks to alleviate. While the district court may have imprecisely stated that the Proclamation was “unsupported by verifiable evidence,” Hawaiʻi TRO, 2017 WL 4639560, at *11, it was correct in concluding that the stated findings do not satisfy § 1182(f)’s prerequisites. To be sure, the Proclamation does attempt to rectify EO-2’s lack of a meaningful connection between listed countries and terrorist organizations. For instance, it cites to the fact that “several terrorist groups are active” in Chad. 82 Fed. Reg. at 45,165. But the Proclamation does not tie the nationals of the designated countries to terrorist organizations. For the second time, the Proclamation makes no finding that nationality alone renders entry of this broad class of individuals a heightened security risk or that current screening processes are inadequate.21 National security is not a “talismanic incantation” that, once invoked, can support any and all exercise of executive power under § 1182(f). United States v. Robel, 389 U.S. 258, 263–64 (1967). Section 1182(f) requires that the President make a finding that the entry of an alien or class of aliens would be detrimental to the interests of the United States. That requirement has not been met. 21 As the statistics provided by the Cato Institute demonstrate, no national from any of the countries selected has caused any of the terrorism-related deaths in the United States since 1975. See Brief of the Cato Institute as Amicus Curiae, Dkt. No. 84 at 26–28. 50  The Government argues that the district court erred by imposing a higher standard than that set forth in Hawai‘i I by objecting to the President’s stated reasons for the ban, by identifying internal inconsistencies, and by requiring verifiable evidence. We need not address the Government’s argument because, as discussed above, the Proclamation has failed to make the critical finding that § 1182(f) requires. We therefore hold that Plaintiffs have shown a likelihood of success on the merits of their § 1182(f) claim that the President has failed to make an adequate finding of detriment. 3. Section 1185(a) In addition to relying on § 1182(f), the Proclamation also grounds its authority in 8 U.S.C. § 1185(a), which states: Unless otherwise ordered by the President, it shall be unlawful [] for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe. 8 U.S.C. § 1185(a)(1). The Government does not argue that § 1185(a) provides an independent basis to suspend entry. Instead, the Government contends that § 1185(a) permits the President to skirt the requirements of § 1182(f) because § 1185(a) does not require a predicate finding before the President prescribes reasonable rules, regulations, and orders governing alien entry and departure. The Government also 51 argues that there is no meaningful standard for review because these matters are committed to the President’s judgment and discretion. Plaintiffs respond that the Government cannot use the general authority in § 1185(a) to avoid the preconditions of § 1182(f). We conclude that the Government cannot justify the Proclamation under § 1182(f) by using § 1185(a) as a backdoor. General grants in a statute are limited by more specific statutory provisions, and § 1182(f) has a specific requirement that there be a finding of detriment before entry may be suspended or otherwise restricted. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (“It is a commonplace of statutory construction that the specific governs the general.” (internal quotation marks and alterations omitted)). Section 1185(a) does not serve as a ground for reversal of the district court’s conclusion on Plaintiffs’ likelihood of success. 4. Section 1152(a)(1)(A)’s Prohibition on National Origin Discrimination Next, we consider the impact of 8 U.S.C. § 1152(a)(1)(A) on the President’s authority to issue the Proclamation. Section 1152(a) states: [N]o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A) (emphasis added). 52  The Government argues that the district court erred by reading § 1152(a)(1)(A) to limit the President’s authority under § 1182(f), and that § 1152(a)(1)(A) has never been used as a constraint on the President’s authority under § 1182(f). In making this argument, the Government once again urges us to conclude that § 1152(a)(1)(A) operates in a separate sphere from § 1182(f). This we decline to do. Congress enacted § 1152(a)(1)(A) of the INA contemporaneously with the Civil Rights Act of 1964 and the Voting Rights Act of 1965 to eliminate the “national origins system as the basis for the selection of immigrants to the United States.” H.R. Rep. No. 89-745, at 8 (1965). In so doing, Congress manifested its intent to repudiate a history of nationality and race-based discrimination in United States immigration policy.22 See 110 Cong. Rec. 1057 (1964) (statement of Sen. 22 The discriminatory roots of the national origins system may be traced back to 1875, when xenophobia towards Chinese immigrants produced Congress’s first race-based immigration laws. See Brief of the National Asian Pacific American Bar Association as Amicus Curiae, Dkt. No. 126, at 5. The Page Law, passed in 1875, banned immigration of women—primarily Asian women—who were presumed, simply by virtue of their ethnicity and nationality, to be prostitutes. Id. at 5. The Page Law was followed in quick succession by the Chinese Exclusion Act in 1882 and the Scott Act in 1888. Id. at 6. These laws were justified on security grounds. See Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889) (declining to overturn the Scott Act because “the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security.”). This underlying xenophobia eventually produced the national origins system, which clearly signaled that “people of some nations [were] 53 Hart) (“[A]n immigration policy with different standards of admissibility for different racial and ethnic groups, in short, a policy with build-in bias, is contrary to our moral and ethical policy.”). Recognizing that “[a]rbitrary ethnic and racial barriers [had become] the basis of American immigration policy,” Senator Hart, the bill’s sponsor, declared that § 1152(a)(1)(A) was necessary “[t]o restore equality and fairplay in our selecting of immigrants.” Id. The Government argues that § 1152(a)(1)(A)’s prohibition of discrimination in the issuance of visas does not cabin the President’s authority to regulate entry under § 1182(f). We disagree. As the Government concedes, the Proclamation restricts the entry of affected aliens by precluding consular officers from issuing visas to nationals from the designated countries. See 82 Fed. Reg. at 45,168. Put another way, the Proclamation effectuates its restrictions by withholding immigrant visas on the basis of nationality. This directly contravenes Congress’s “unambiguous[] direct[ions] that no nationality-based discrimination . . . occur.” Legal Assistance for Vietnamese Asylum Seekers, 45 F.3d at 473. We are bound to give effect to “all parts of a statute, if at all possible.” Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633 (1973). The Government’s position that § 1152(a)(1)(A) and § 1182(f) operate in different more welcome to America than others,” and created “token quotas” based on “implications of race superiority.” 110 Cong. Rec. 1057 (statement of Sen. Hart). 54 spheres—the former in issuance of immigrant visas, the latter in entry—would strip § 1152(a)(1)(A) of much of its power. It is difficult to imagine that Congress would have celebrated the passing of the bill as “one of the most important measures treated by the Senate . . . [for its] restate[ment] [of] this country’s devotion to equality and freedom” had it thought the President could simply use § 1182(f) to bar Asian immigrants with valid immigrant visas from entering the country. 111 Cong. Rec. 24785 (1965) (statement of Sen. Mansfield); see also Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill, Liberty Island, New York, The Am. Presidency Project (Oct. 3, 1965), http://www. presidency.ucsb.edu/ws/index.php?pid=27292 (concluding that the discriminatory national origins quota system “will never again shadow the gate to the American Nation with the twin barriers of prejudice and privilege”). We do not think Congress intended § 1152(a)(1)(A) to be so easily circumvented. We therefore read § 1152(a)(1)(A) as prohibiting discrimination on the basis of nationality throughout the immigration visa process, including visa issuance and entry. 23 23 Even if we assume for the sake of argument that Congress intended § 1182(f) and § 1152(a)(1)(A) to operate in entirely separate spheres, as is argued by the Government, the result would be the same. This is so because both at oral argument and in the Proclamation’s text, the Government has conceded that if its entry ban were upheld, all embassy actions in issuing visas for nationals of the precluded countries would cease. 82 Fed. Reg. at 45,168 (noting that waiver by consular officers will be effective “both for the issuance of a visa and for any 55  To the extent that § 1152(a)(1)(A) conflicts with the broader grant of authority in § 1182(f) and § 1185(a), the Government asks us to give the latter two provisions superseding effect. The Government argues that as the more recently amended and “more specific” provision, § 1185(a) ought to control over § 1152(a)(1)(A). We are unpersuaded by this argument for several reasons. First, when two statutory provisions are in irreconcilable conflict, a later- enacted, more specific provision is treated as an exception to an earlier-enacted, general provision. See, e.g., Perez-Guzman v. Lynch, 835 F.3d 1066, 1075 (9th Cir. 2016); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 183–87 (2012). Section 1152(a)(1)(A) was enacted over a decade after § 1182(f). Section 1152(a)(1)(A) also operates at a greater level of specificity than either § 1182(f) or § 1185(a)—it eliminates nationality-based discrimination for the issuance of immigrant visas. Because the “specific provision is construed as an exception to the general one,” we agree with Plaintiffs that § 1152(a)(1)(A) provides a specific anti-discrimination bar to the President’s general § 1182(f) powers. RadLAX, 566 U.S. at 645. subsequent entry on that visa” (emphasis added)); United States Court of Appeals for the Ninth Circuit, 17-17168 State of Hawaii v. Donald Trump, YouTube (Dec. 7, 2017) at 9:55–11:33; 11:59–12:12. Enforcement of the entry ban under § 1182(f) would inescapably violate § 1152(a)(1)(A)’s prohibition on nationality- based discrimination in the issuance of immigrant visas, because the Proclamation effectively bars nationals of the designated countries from receiving immigrant visas. 56  Second, § 1152(a)(1)(A) clearly provides for exceptions in a number of circumstances. See 8 U.S.C. §§ 1101(a)(27), 1151(b)(2)(A)(i), and 1153. Neither § 1182(f) nor § 1185(a) is included in the list of enumerated exceptions. We presume that Congress’s inclusion of specified items and exclusion of others is intentional. See United States v. Vance Crooked Arm, 788 F.3d 1065, 1075 (9th Cir. 2015) (“Under the longstanding canon expressio unius est exclusio alterius, we presume that the exclusion of . . . phrases” by Congress was intentional). The conspicuous absence of § 1182(f) and § 1185(a) from the listed exceptions vitiates the Government’s position that both provisions fall outside § 1152(a)(1)(A)’s purview. Lastly, the Government’s reliance on prior Executive practice is misplaced. The Government again points to President Reagan’s Proclamation 5517 suspending immigration from Cuba in response to Cuba’s own suspension of immigration practices, and President Carter’s Executive Order 12172 and the accompanying visa issuance regulations as to Iranian nationals during the Iran hostage crisis. As we explained above, supra at § III.A.1.d, those restrictions were never challenged in court and we do not pass on their legality now. Moreover, both orders are outliers among the forty-plus presidential executive orders restricting entry, and therefore cannot support a showing of congressional acquiescence. See Solid Waste Agency, 531 U.S. at 169. Finally, we need not 57 decide whether a President may, under special circumstances and for a limited time, suspend entry of all nationals from a foreign country. See IRAP v. Trump, No. TDC-17-0361, 2017 WL 4674314, at *21 (D. Md. Oct. 17, 2017). Such circumstances, if they exist, have not been argued here. For the reasons stated above, the Proclamation’s indefinite entry suspensions constitute nationality discrimination in the issuance of immigrant visas. We therefore conclude that Plaintiffs have shown a likelihood of success on the merits of their claim that the Proclamation runs afoul of § 1152(a)(1)(A)’s prohibition on nationality-based discrimination. 5. Alternative Authority Having concluded that the Proclamation violates the INA and exceeds the scope of the President’s delegated authority under § 1182(f), we view the Proclamation as falling into Justice Jackson’s third category from Youngstown Sheet & Tube Co. v. Sawyer: “[w]hen the President [has] take[n] measures incompatible with the expressed or implied will of Congress.” 343 U.S. 579, 637 (1952) (Jackson, J., concurring). Under Youngstown’s tripartite framework, presidential actions that are contrary to congressional will leave the President’s “power [] at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. We therefore must determine whether the President has constitutional authority to issue 58 the Proclamation, independent of any statutory grant—for if he has such power, it may be immaterial that the Proclamation violates the INA. But when a President’s action falls into “this third category, the President's asserted power must be both ‘exclusive’ and ‘conclusive’ on the issue” in order to succeed. Zivotofsky ex rel. Zivotofsky, 135 S. Ct. at 2084. We conclude that the President lacks independent constitutional authority to issue the Proclamation, as control over the entry of aliens is a power within the exclusive province of Congress.24 See Galvan, 347 U.S. at 531 (“[T]he formulation of these [immigration] policies is entrusted exclusively to Congress”); see also Arizona, 567 U.S. at 407 (citing Galvan, 347 U.S. at 531). While the Supreme Court’s earlier jurisprudence contained some ambiguities on the division of power between Congress and the Executive on immigration,25 the Court has 24 In Hawai’i I, we opted not to decide the question of “whether and in what circumstances the President may suspend entry under his inherent powers as commander-in-chief or in a time of national emergency.” 859 F.3d 741, 782 n.21 (9th Cir. 2017). In holding today that the President lacked independent constitutional authority to issue the Proclamation, we again need not, and do not, decide whether the President may be able to suspend entry pursuant to his constitutional authority under any circumstances (such as in times of war or national emergency), as the Proclamation was issued under no such exceptional circumstances. 25 See Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 Yale L.J. 458, 467–482 (2009) (examining the Supreme Court’s shift from viewing authority over immigration as ambiguously belonging to the political branches—without specifying the allocation of power between the two—to increasingly identifying control over immigration as the province of Congress). 59 more recently repeatedly recognized congressional control over immigration policies. See, e.g., Chadha, 462 U.S. at 940 (“The plenary authority of Congress over aliens under Art. I, § 8, cl. 4 is not open to question”); Fiallo, 430 U.S. at 793 (recognizing “the need for special judicial deference to congressional policy choices in the immigration context”); Galvan, 347 U.S. at 531–32 (“[T]hat the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government . . . . [we] must therefore under our constitutional system recognize congressional power in dealing with aliens.”). Exclusive congressional authority over immigration policy also finds support in the Declaration of Independence itself, which listed “obstructing the Laws for Naturalization of Foreigners” and “refusing to pass [laws] to encourage their migrations hither” as among the acts of “absolute Tyranny” of “the present King of Great Britain.” The Declaration of Independence para. 2 (U.S. 1776). As Justice Jackson noted in Youngstown, “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.” 343 U.S. at 641 (Jackson, J., concurring). This is perhaps why the Constitution vested Congress with the power to “establish an uniform Rule of Naturalization”: the 60 Framers knew of the evils that could result when the Executive exerts authority over the entry of aliens, and so sought to avoid those same evils by granting such powers to the legislative branch instead. See U.S. Const. art. I, § 8, cl. 4. B. Remaining Preliminary Injunction Factors The three remaining preliminary injunction factors also lead us to affirm the preliminary injunction. Plaintiffs have successfully shown that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that the preliminary injunction is in the public interest. Winter, 555 U.S. at 20. 1. Irreparable Harm The Government argues that Plaintiffs will suffer “no cognizable harm” absent the injunction because the Proclamation may only “delay” their relatives, students and faculty, and members from entering the United States. Indefinite delay, however, can rise to the level of irreparable harm. See, e.g., CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (Blackmun, J., in chambers) (granting emergency stay from preliminary injunction because the “indefinite delay” of a broadcast would cause “irreparable harm to the news media”). This is one such instance. Plaintiffs have presented evidence that the Proclamation will result in “prolonged separation from family members, constraints to recruiting and retaining 61 students and faculty members to foster diversity and quality within the University community, and the diminished membership of the Association,” the last of which “impacts the vibrancy of [the Association’s] religious practices and instills fear among its members.” Hawaiʻi TRO, 2017 WL 4639560, at *13. As we have said before, “[m]any of these harms are not compensable with monetary damages and therefore weigh in favor of finding irreparable harm.” Hawaiʻi I, 859 F.3d at 782– 83; see also Washington, 847 F.3d at 1168–69 (“[T]he States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad.”); Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017) (characterizing the “collateral harms to children of detainees whose parents are detained” as an irreparable harm); Regents of Univ. of Cal. v. Am. Broad. Cos., Inc., 747 F.2d 511, 520 (9th Cir. 1984) (crediting intangible harms such as the “impairment of their ongoing recruitment programs [and] the dissipation of alumni and community goodwill and support garnered over the years”); cf. Moore v. East Cleveland, 431 U.S. 494, 503–04 (1977) (explaining that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition”). We therefore conclude that Plaintiffs are likely to suffer irreparable harm in the absence of the preliminary injunction. 2. Balance of Equities 62  We next conclude that the district court correctly balanced the equities in this case. When considering the equities of a preliminary injunction, we must weigh the “competing claims of injury” and “consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24 (citation omitted). In contrast to Plaintiffs’ concrete allegations of harm, the Government cites to general national security concerns.26 National security is undoubtedly a paramount public interest, see Haig, 453 U.S. at 307 (“[N]o governmental interest is more compelling than the security of the Nation.”), but it cannot be used as a “talisman . . . to ward off inconvenient claims.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017); cf. New York Times Co. v. United States, 403 U.S. 713, 719 (1971) (Black, J., concurring) (describing “security” as a “broad, vague generality whose contours should not be invoked to abrogate” the law). When, as here, the President has failed to make sufficient findings that the “entry of certain classes of aliens would be detrimental to the national interest,” “we cannot conclude that national security interests outweigh the harms to Plaintiffs.” Hawaiʻi I, 859 F.3d at 783. 26 The Government additionally argues that “[t]he injunction . . . causes irreparable injury by invalidating an action taken at the height of the President’s authority.” Not so. For the reasons discussed earlier, by acting in a manner incompatible with Congress’s will, the President’s power here is “at its lowest ebb.” Youngstown, 343 U.S. at 638 (Jackson, J., concurring). 63  The injunction here would only preserve the status quo as it existed prior to the Proclamation while the merits of the case are being decided. We think it significant that the Government has been able to successfully screen and vet foreign nationals from the countries designated in the Proclamation under current law for years. See Brief of the Cato Institute as Amicus Curiae, Dkt. No. 84 at 26– 27 (explaining that, from 1975 through 2017, "no one has been killed in a terrorist attack on U.S. soil by nationals from any of the eight Designated Countries"); id. at 29 (showing that the U.S. incarceration rate for persons born in the designated countries is lower than the U.S. incarceration rates for persons born in the U.S. or other non-U.S. countries). Accordingly, the balance of equities tips in Plaintiffs’ favor. 3. Public Interest Lastly, we consider whether Plaintiffs have successfully shown that “an injunction is in the public interest.” Winter, 555 U.S. at 20. We conclude that they have. It is axiomatic that the President must exercise his executive powers lawfully. When there are serious concerns that the President has not done so, the public interest is best served by “curtailing unlawful executive action.” Texas v. United States, 809 F.3d 134, 187 (5th Cir. 2015), aff’d by an equally divided court 136 S. Ct. 2271 (2016). Amici provide further insight into the public interests that 64 would be served by sustaining the district court’s injunction. They have furnished us with a plethora of examples, of which we highlight a few. Amici persuasively cite to increased violence directed at persons of the Muslim faith as one of the Proclamation’s consequences. See Brief of Civil Rights Organizations as Amici Curiae, Dkt. No. 52 at 19–23; Brief of Members of the Clergy et al. as Amici Curiae, Dkt. No. 97 at 29–32. Amici also explain that by singling out nationals from primarily Muslim-majority nations, the Proclamation has caused Muslims across the country to suffer from psychological harm and distress, including growing anxiety, fear, and terror. Brief of Muslim Justice League et al. as Amici Curiae, Dkt. No. 68 at 21–23. In assessing the public interest, we are reminded of Justice Murphy’s wise words: “All residents of this nation are kin in some way by blood or culture to a foreign land.” Korematsu v. United States, 323 U.S. 214, 242 (Murphy, J., dissenting). It cannot be in the public interest that a portion of this country be made to live in fear. We note, too, that the cited harms are extensive and extend beyond the community. As Amici point out, the Proclamation, like its predecessors, “continues to disrupt the provision of medical care” and inhibits “the free exchange of information, ideas, and talent between the designated countries and [various] [s]tates, causing long-term economic and reputational damage.” Brief of New 65 York et al. as Amici Curiae, Dkt. No. 71 at 4. Moreover, because the Proclamation bans the entry of potential entrepreneurs, inventers, and innovators, the public’s interest in innovation is thwarted at both the state and corporate levels. See Brief of Technology Companies as Amici Curiae, Dkt. No. 99 at 5–7. The Proclamation further limits technology companies’ abilities to hire to full capacity by barring nationals of the designed countries from filling vacant positions. See Brief of Massachusetts Technology Leadership Council as Amicus Curiae, Dkt. No. 120 at 8–16 (explaining that “the technology industry is growing too rapidly to be staffed through domestic labor alone”). The Proclamation also risks denying lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) individuals in the United States the opportunity to reunite with their partners from the affected nations. See Brief of Immigration Equality et al. as Amici Curiae, Dkt. No. 101 at 17–20. The Proclamation allows that it “may be appropriate” to grant waivers to foreign nationals seeking to reside with close family members in the United States. 82 Fed. Reg. at 45,168–69. But many of the affected nations criminalize homosexual conduct, and LGBTQ aliens will face heightened danger should they choose to apply for a visa from local consular officials on the basis of their same-sex relationships. Brief of Immigration Equality at 4. The public interest is not served by denying LGBTQ persons in the United States the ability to safely bring their partners home to them. 66  *** For the foregoing reasons, we conclude that the district court did not abuse its discretion in granting an injunction. C. Scope of the Preliminary Injunction The Government argues that the injunction is overbroad because it is not limited to redressing the Plaintiffs’ “own cognizable injuries.” Plaintiffs argue that the nationwide scope of the injunction is appropriate particularly in the immigration context because piecemeal relief would fragment immigration policy. Plaintiffs further argue that it would be impracticable or impossible for them to name all those who would apply to the University of Hawai‘i or the Association, but who have been chilled or prevented by the Proclamation from doing so. We review the scope of a preliminary injunction for abuse of discretion. McCormack v. Hiedeman, 694 F.3d 1004, 1010 (9th Cir. 2012). Although the district court has “considerable discretion in fashioning suitable relief and defining the terms of an injunction,” Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991), there are limitations on this discretion. Injunctive relief must be “tailored to remedy the specific harm[s]” shown by the plaintiffs. Id. Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights. See Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1987) (“[A]n injunction is not necessarily 67 made over-broad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.”). “[T]he Constitution requires ‘an uniform Rule of Naturalization’; Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly’; and the Supreme Court has described immigration policy as ‘a comprehensive and unified system.’” Texas, 809 F.3d at 187–88 (citations omitted). Any application of § 2 of the Proclamation would exceed the scope of § 1182(f), violate § 1152(a)(1)(A), and harm Plaintiffs’ interests. Accordingly, the district court did not abuse its discretion by granting a nationwide injunction. Although a nationwide injunction is permissible, a worldwide injunction as to all nationals of the affected countries extends too broadly. As the Supreme Court observed in IRAP: “The equities relied on by the lower courts do not balance the same way in that context.” 137 S. Ct. at 2088. “[W]hatever burdens may result from enforcement of § 2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified [previously].” Id. “At the same time, the Government’s interest in enforcing § 2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.” Id. 68  We therefore narrow the scope of the preliminary injunction, as we did in our November 13, 2017 order on the Government’s motion for emergency stay. See Hawai‘i v. Trump, 2017 WL 5343014, at *1. We then wrote: The preliminary injunction is stayed except as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” as set out below. The injunction remains in force as to foreign nationals who have a “close familial relationship” with a person in the United States. Such persons include grandparents, grandchildren, brothers-in-law, sisters- in-law, aunts, uncles, nieces, nephews, and cousins. “As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [Proclamation 9645].” Id. (internal citations omitted). We again limit the scope of the district court’s injunction to those persons who have a credible bona fide relationship with a person or entity in the United States. The injunction remains in force as to foreign nationals who have a “close familial relationship” with a person in the United States, including grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins. As for entities, the relationship must be formal, documented, and formed in the ordinary course of business, rather than for the purpose of evading the Proclamation. IV. Establishment Clause Claim 69  Plaintiffs argue that the Proclamation also violates the Establishment Clause of the United States Constitution. They urge us to adopt the view taken by the en banc Fourth Circuit in its review of EO-2 that “the reasonable observer would likely conclude that EO-2’s primary purpose [was] to exclude persons from the United States on the basis of their religious beliefs.” IRAP, 857 F.3d at 601. Because we conclude that the district court did not abuse its discretion in granting the preliminary injunction relying on Plaintiffs’ statutory claims, we need not and do not consider this alternate constitutional ground. See Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989) (“Particularly where, as here, a case implicates the fundamental relationship between the Branches, courts should be extremely careful not to issue unnecessary constitutional rulings.”). V. Conclusion For all of these reasons, we affirm in part and vacate in part the district court’s preliminary injunction order. We narrow the scope of the injunction to give relief only to those with a credible bona fide relationship with the United States, pursuant to the Supreme Court’s decision in IRAP, 137 S. Ct. at 2088. In light of the Supreme Court’s order staying this injunction pending “disposition of the Government’s petition for a writ of certiorari, if such writ is sought,” we stay our decision today pending Supreme Court review. Trump v. Hawai‘i, No. 17A550, — S. Ct. —, 2017 WL 5987406 (Dec. 4, 2017). Because we conclude 70 that Plaintiffs have shown a likelihood of success on their statutory claims, we need not reach their constitutional claims. AFFIRMED IN PART, VACATED IN PART. 71 Counsel page Hashim M. Mooppan (argued), Deputy Assistant Attorney General; Sharon Swingle, H. Thomas Byron III, and Lowell V. Sturgill Jr., Appellate Staff; Chad A. Readler, Acting Assistant Attorney General; Jeffrey B. Wall and Edwin S. Kneedler, Deputy Solicitors General; Noel J. Francisco, Solicitor General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants. Mitchell P. Reich (argued), Neal Kumar Katyal (argued), Colleen Roh Sinzdak, Elizabeth Hagerty, Yuri S. Fuchs, Sundeep Iyer, and Reedy C. Swanson, Hogan Lovells US LLP, Washington, D.C.; Thomas P. Schmidt, Hogan Lovells US LLP, New York, New York; Sara Solow and Alexander B. Bowerman, Hogan Lovells US LLP, Philadelphia, Pennsylvania; Deirdre Marie-Iha, Donna H. Kalama, Kimberly T. Guidry, Robert T. Nakatsuji, Kaliko‘Onalani D. Fernandes, and Kevin M. Richardson, Deputy Attorneys General; Clyde J. Wadsworth, Solicitor General; Douglas S. Chin, Attorney General; Department of the Attorney General, Honolulu, Hawaii; for Plaintiffs-Appellees. Eric T. Schneiderman, Attorney General; Barbara D. Underwood, Solicitor General; Anisha S. Dasgupta, Deputy Solicitor General; Zainab A. Chaudhry, Assistant Solicitor General of Counsel; Office of the Attorney General, New York, New York; Lisa Madigan, Attorney General; David L. Franklin, Solicitor General; Office of the Attorney General, Chicago, Illinois; Xavier Becerra, Attorney General, Office of the Attorney General, Sacramento, California; George Jepsen, Attorney General, Office of the Attorney General, Hartford, Connecticut; Matthew P. Denn, Attorney General, Delaware Department of Justice, Wilmington, Delaware; Thomas J. Miller, Attorney General, Office of the Attorney General, Des Moines, Iowa; Janet T. Mills, Attorney General, Office of the Attorney General, Augusta, Maine; Brian E. Frosh, Attorney General, Attorney General’s Office, Baltimore, Maryland; Maura Healey, Attorney General, Attorney General’s Office, Boston, Massachusetts; Hector Balderas, Attorney General, Office of the Attorney General, Santa Fe, New Mexico; Ellen F. Rosenblum, Attorney General, Office of the Attorney General, Salem, Oregon; Peter F. Kilmartin, Attorney General, Office of the Attorney General, Providence, Rhode Island; Thomas J. Donovan Jr., Attorney General, Office of the Attorney General, Montpelier, Vermont; Mark R. Herring, Attorney General, Office of the Attorney General, Richmond, Virginia; Robert W. Ferguson, Attorney General, Office of the Attorney General, Seattle, Washington; Karl A. Racine, Attorney General, Office of the Attorney General, Washington, D.C.; for Amici Curiae States of New York, Illinois, California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, and Washington, the Commonwealth of Virginia, and the District of Columbia. Scott A. Keller, Solicitor General; J. Campbell Barker, Deputy Solicitor General; Ari Cuenin, Assistant Solicitor General; Ken Paxton, Attorney General; Jeffrey C. Mateer, First Assistant Attorney General; Office of the Attorney General, Austin, Texas; for Amici Curiae States of Texas, Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Missouri, Ohio, Oklahoma, South Carolina, and West Virginia. 72 Richard D. Bernstein, Willkie Farr & Gallagher LLP, Washington, D.C., for Amicus Curiae T.A., a U.S. Resident of Yemeni Descent. Amir H. Ali, Washington, D.C., as and for Amicus Curiae Roderick & Solange MacArthur Justice Center. Nicole G. Berner, Deborah L. Smith, and Leo Gertner, Service Employees International Union, Washington, D.C.; Judith Rivlin, American Federation of State, County and Municipal Employees, Washington, D.C.; David J. Strom, American Federation of Teachers, AFL-CIO, Washington, D.C.; Jody Calemine, Communications Workers of America, Washington, D.C.; Niraj R. Ganatra and Ava Barbour; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; Detroit, Michigan; Mario Martínez, Martínez Aguilasocho & Lynch APLC, Bakersfield, California; Nicholas Clark, United Food and Commercial Workers, Washington, D.C.; for Amici Curiae International Labor Organizations. Lynne Bernabei and Alan R. Kabat, Bernabei & Kabat PLLC, Washington, D.C., for Amici Curiae Civil Rights Organizations. Aaron X. Fellmeth, Sandra Day O’Connor College of Law, Arizona State University, Phoenix, Arizona; Joseph M. McMillan and Michelle L. Maley, Perkins Coie LLP, Seattle, Washington; for Amici Curiae International Law Scholars and Nongovernmental Organizations. Benjamin G. Schatz, Amy Briggs, John W. McGuinness, Sirena Castillo, Matthew Bottomly, Olufunmilayo Showole, Ketakee Kane, and Eve Torres, Manatt Phelps & Phillips LLP, Los Angeles, California, for Amici Curiae Muslim Justice League, Muslim Public Affairs Council, and Council of American-Islamic Relations California. Marc A. Hearron, Sophia M. Brill, and Sandeep N. Nandivada, Morrison & Foerster LLP, Washington, D.C.; Jennifer K. Brown and Amanda Aikman, Morrison & Foerster LLP, New York, New York; Purvi G. Patel, Morrison & Foerster LLP, Los Angeles, California; for Amici Curiae Interfaith Group of Religious and Interreligious Organizations and Clergy Members. Fatma Marouf, Fort Worth, Texas; Sabrineh Ardalan, Philip L. Torrey, Nathan MacKenzie, Dalia Deak, Niku Jafarnia, and Rachel Kroll, Cambridge, Massachusetts; Geoffrey Hoffman, Houston, Texas; Karla McKanders, Nashville, Tennessee; for Amici Curiae Immigration Law Scholars on Statutory Claims. Donald Francis Donovan, David W. Rivkin, Jennifer R. Cowan, and Elizabeth Nielsen, Debevoise & Plimpton LLP, New York, New York; Ilana H. Eisenstein, John M. Leitner, and Ryan S. Macpherson, DLA Piper LLP (US), Philadelphia, Pennsylvania; for Amicus Curiae International Bar Association’s Human Rights Institute. Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans, Constitutional Accountability Center, Washington, D.C.; Raymond H. Brescia, Albany, New York; Peter Karanjia and Geoffrey Brounell, Davis Wright Tremaine LLP, Washington, D.C.; Victor A. Kovner, Davis Wright Tremaine LLP, New York, New York; for Amici Curiae Members of Congress. 73 Christopher J. Hajec, Julie B. Axelrod, Michael M. Hethmon, Elizabeth A. Hohenstein, and Mark S. Venezia, Washington, D.C., as and for Amicus Curiae Immigration Reform Law Institute. Cameron C. Russell, David Y. Livshiz, and Karen Wiswall, Freshfields Bruckhaus & Deringer US LLP, New York, New York; Daniel Braun and Peter Jaffe, Freshfields Bruckhaus & Deringer US LLP, Washington, D.C.; for Amicus Curiae The Cato Institute. Meir Feder, Rasha Gerges Shields, and Rajeev Mittreja, Jones Day, New York, New York; Catherine Y. Kim, New York, New York; Judith Resnik, New Haven, Connecticut; Burt Neuborne, New York, New York; Lucas Guttentag, Palo Alto, California; for Amici Curiae Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law. Lindsay C. Harrison, Thomas J. Perrilli, and Tassity S. Johnson, Jenner & Block LLP, Washington, D.C.; for Amici Curiae Boston University, Brandeis University, Brown University, Bucknell University, Carnegie Mellon University, Case Western Reserve University, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Johns Hopkins University, Massachusetts Institute of Technology, Middlebury College, Northeastern University, Northwestern University, Princeton University, Rice University, Stanford University, Tufts University, University of Chicago, University of Michigan, University of Pennsylvania, University of Southern California, Vanderbilt University, Washington University, Worcester Polytechnic Institute, and Yale University. Benna Ruth Solomon, Deputy Corporation Counsel; Edward N. Siskel, Corporation Counsel; Andrew W. Worseck, Chief Assistant Corporation Counsel; Carl Newman, Sara K. Hornstra, and Jonathon D. Byrer, Assistant Corporation Counsel; Department of Law, Chicago, Illinois; Nick Kahlon, Riley Safer Holmes & Cancila LLP, Chicago, Illinois; Ryan P. Poscablo, Brian Neff, and Eliberty Lopez, Riley Safer Holmes & Cancila LLP, New York, New York; Michael N. Feuer, Los Angeles City Attorney, Los Angeles, California; Zachary W. Carter, Corporation Counsel, New York Law Department, New York, New York; Sozi Pedro Tulante, City Solicitor, Law Department, Philadelphia, Pennsylvania; John Danial Reaves, Washington, D.C.; for Amici Curiae Chicago, Los Angeles, New York, Philadelphia, and other Cities and Counties, joined by the U.S. Conference of Mayors. Richard B. Katskee, Eric Rothschild, and Kelly M. Percival, Americans United for Separation of Church and State, Washington, D.C.; Elliot M. Mincberg and Diane Laviolette, People for the American Way Foundation, Washington, D.C.; Gillian B. Gillers, Kristi L. Graunke, and Naomi R. Tsu, Southern Poverty Law Center, Decatur, Georgia; Susan L. Sommer, Lambda Legal Defense and Education Fund Inc., New York, New York; Camilla B. Taylor, Lambda Legal Defense and Education Fund Inc., Chicago, Illinois; Sharon M. McGowan, Lambda Legal Defense and Education Fund Inc., Washington, D.C.; Jennifer C. Pizer, Lamba Legal Defense and Education Fund Inc., Los Angeles, California; for Amici Curiae Members of the Clergy, Americans United for Separate of Church and State, Bend the Arc, A Jewish Partnership for Justice, Central Conference of American Rabbis, Lambda Legal Defense and Education Fund 74 Inc., People for the American Way Foundation, Riverside Church in the City of New York, Southern Poverty Law Center, Union for Reform Judaism, and Women of Reform Judaism. Andrew J. Pincus, Paul W. Hughes, and John T. Lewis, Mayer Brown LLP, Washington, D.C., for Amici Curiae Technology Companies. Pratik A. Shah and Martine E. Cicconi, Washington, D.C.; Robert S. Chang and Lorraine K. Bannai, Ronald A. Peterson Law Clinic, Seattle University School of Law, Seattle, Washington; Eric Yamamoto, Fred T. Korematsu Professor of Law and Social Justice, William S. Richardson School of Law, University of Hawaii, Honolulu, Hawaii; Robert L. Rusky, San Francisco, California; Dale Minami and Donald K. Tamaki, Minami Tamaki LLP, San Francisco, California; Peter Irons, Director Emeritus, Earl Warren Bill of Rights Project, University of California at San Diego, San Diego, California; Leigh-Ann K. Miyasato, Honolulu, Hawaii; Rodney L. Kawakami, Seattle, Washington; Robert A. Johnson and Alice Hsu, Akin Gump Strauss Hauer & Feld LLP, New York, New York; Jessica M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California; for Amici Curiae Karen Korematsu, Jay Hirabayashi, Holly Yasui, The Fred T. Korematsu Center for Law and Equality, Civil Rights Organizations, and National Bar Associations of Color. Matthew E. Sloan, Richard A. Schwartz, Allison B. Holcombe, Alyssa J. Clover, nad Brittany Ellenberg, Skadden Arps Slate Meagher & Flom LLP, Los Angeles, California; Eric J. Gorman and Jennifer H. Berman, Skadden Arps Slate Meagher & Flom LLP, Chicago, Illinois; Noelle M. Reed, Sarah Grossnickle, and Jonathan Fombonne, Skadden Arps Slate Meagher & Flom LLP, Houston, Texas; Joseph M. Sandman, Skadden Arps Slate Meagher & Flom LLP, Washington, D.C.; Aaron Morris, Immigration Equality, New York, New York; Virginia M. Goggin, New York City Gay and Lesbian Anti-Violence Project, New York, New York; Glenn Magpantay, The National Queer Asian Pacific Islander Alliance, New York, New York; for Amici Curiae Immigration Equality, New York City Gay and Lesbian Anti-Violence Project, LGBT Bar Association of Los Angeles, LGBT Bar Association of Greater New York, Lesbian and Gay Bar Association of Chicago, GLBTQ Legal Advocates & Defenders, and Bay Area Lawyers for Individual Freedom. Alan E. Schoenfeld and Scott McAbee, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Peter Margulies, Roger Williams University School of Law, Bristol, Rhode Island; for Amici Curiae Scholars of Immigration Law. Dan Jackson, John W. Keker, and R. Adam Lauridsen, Keker Van Nest & Peters LLP, San Francisco, California, for Amicus Curiae Khizr Khan. Brett R. Tobin, Goodsill Anderson Quinn & Stifel, Honolulu, Hawaii; Michael B. Keating, Kristyn M. Defilipp, Christopher E. Hart, and Daniel L. McFadden, Foley Hoag LLP, Boston, Massachusetts; for Amicus Curiae Massachusetts Technology Leadership Council Inc. Robert A. Wiygul and Mark A. Aronchick, Hangley Aronchick Segal Pudlin & Schiller, Philadelphia, Pennsylvania, for Amici Curiae Immigration, Family, and Constitutional Law Professors. 75 James W. Kim and Andrew J. Genz, McDermott Will & Emery LLP, Washington, D.C.; Tina R. Matsuoka, Navdeep Singh, Meredith S.H. Higashi, Rachana Pathak, and Albert Giang, National Asian Pacific American Bar Association, Washington, D.C.; for Amicus Curiae National Asian Pacific American Bar Association. Herbert W. Titus, William J. Olson, Robert J. Olson, and Jeremiah L. Morgan, William J. Olson P.C., Vienna, Virginia; Joseph W. Miller, Fairbanks, Alaska; for Amici Curiae Citizens United, Citizens United Foundation, Conservative Legal Defense and Education Fund, U.S. Justice Foundation, Gun Owners Foundation, Gun Owners of America Inc., Public Advocate of the United States, Restoring Liberty Action Committee, English First, English First Foundation, and Policy Analysis Center. Yolanda C. Rondon, Samer E. Khalaf, and Abed A. Ayoub, Washington, D.C., as and for Amicus Curiae American-Arab Anti-Discrimination Committee. 76 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-1419 BRIAN COLBERT, Plaintiff - Appellant, and MICHAEL RUNNELS; DONNA RUNNELS, Plaintiffs, v. NORCOLD, INC.; THETFORD CORPORATION; THE DYSON-KISSNER- MORAN CORPORATION, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:16-cv-00713-LO-IDD) Argued: March 21, 2018 Decided: April 13, 2018 Before NIEMEYER, TRAXLER, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Kassi Dee Patrick Marks, LEGER KETCHUM & COHOON, PLLC, The Woodlands, Texas, for Appellant. Martin Andrew Conn, MORAN REEVES & CONN PC, Richmond, Virginia, for Appellee. ON BRIEF: Bradley L. Leger, LEGER KETCHUM & COHOON, PLLC, The Woodlands, Texas, for Appellant. Lisa M. McMurdo, Laura May Hooe, MORAN REEVES & CONN PC, Richmond, Virginia for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: I. On August 2, 2015, hydrogen gas leaking from a Norcold 1200 Series gas absorption refrigerator ignited and caused a fire inside of a recreational vehicle. While responding to the fire, Brian Colbert, a sheriff’s deputy and volunteer firefighter, was injured by shrapnel from an explosion caused by the fire. Consequently, Colbert sued Norcold, Thetford Corporation, and The Dyson-Kissner-Moran Corporation (collectively, “Norcold”) alleging claims for breach of the implied warranty of merchantability; negligent design defect and failure to warn; and punitive damages. The district court granted summary judgment to Norcold on all claims. In doing so, the district court determined that Virginia’s Fireman’s Rule, which bars firefighters from recovering from defendants whose negligence created the fire, applied to products liability claims. See Va. Code Ann. § 8.01-226 (West 2015 & Supp. 2017). Further, the district court examined Norcold’s conduct and concluded that the exception to the Fireman’s Rule for willful and wanton conduct did not apply. As a result, the district court held that the Fireman’s Rule operated to bar Colbert from recovering against Norcold. The district court also concluded that Colbert’s breach of implied warranty of merchantability claim failed because Colbert was not within the class of permissible plaintiffs as one “whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods.” Va. Code Ann. § 8.2-318 (West 2015). 3  II. Colbert appeals the district court’s summary judgment order. We review the order de novo and view the facts in the light most favorable to Colbert as the nonmoving party. See Hickerson v. Yamaha Motor Corp., 882 F.3d 476, 481 (4th Cir. 2018). Having carefully considered Colbert’s arguments, we affirm. III. A. Colbert first argues that the district court erred by ruling on his breach of implied warranty of merchantability and negligent failure to warn claims because Norcold did not move for summary judgment on these claims. We conclude that the district court did not err in this regard. Norcold plainly requested summary judgment on the breach of warranty claim as to all plaintiffs, claiming they were “entitled to judgment as a matter of law on Count I of [p]laintiffs’ [c]omplaint.” J.A. 141. * Additionally, Colbert pled his negligent failure to warn claim as part of “Count II - Negligence,” id. at 32, and Norcold moved for summary judgment on “Count II” “[p]ursuant to Virginia’s ‘Fireman’s Rule,’” id. at 143, 141. Accordingly, the district court did not err by ruling on these claims. B. Colbert next contends that the Virginia Fireman’s Rule does not apply to products liability claims. He argues in the alternative that Norcold’s conduct was willful and wanton, which would warrant an exception to the Fireman’s Rule. See Goodwin v. Hare, * Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal. 4 436 S.E.2d 605, 605–06 (Va. 1993). The Virginia Fireman’s Rule, a now codified common law doctrine, bars firefighters and other public officials engaging in high risk activities from recovering for negligence causing them injury sustained while performing their duties. See Va. Code Ann. § 8.01-226 (West 2015 & Supp. 2017); Chesapeake & Ohio Ry. Co. v. Crouch, 159 S.E.2d 650, 653–55 (Va. 1968). The rule does not apply, however, if the defendant’s conduct was willful or wanton. See Goodwin, 436 S.E.2d at 606. After reviewing the record and the order of the district court, we agree with the district court: the Fireman’s Rule applies to products liability claims, and Norcold’s conduct was not willful or wanton. The reasoning behind the Fireman’s Rule applies with equal force to products liability claims, and we see no reason the Virginia Supreme Court would not apply it here. See Benefiel v. Walker, 422 S.E.2d 773, 775 (Va. 1992) (“It is the fireman’s business to deal with . . . hazard[s] and hence . . . he cannot complain of negligence in the creation of the very occasion for his engagement.” (quoting Flowers v. Rock Creek Terrace Ltd. P’ship, 520 A.2d 361, 367 (Md. 1987))); Commonwealth v. Millsaps, 352 S.E.2d 311, 315 (Va. 1987) (explaining that it is Virginia’s policy to impose the burden of compensating firefighters for their injuries received in the line of duty “on the public generally, through workers’ compensation and other benefits”). Moreover, Norcold issued seven recalls, commissioned several studies, and instituted logging protocols, all in an effort to reduce the risk of fires attributable to their refrigerators. Indeed, that risk has now been reduced to negligible levels. Such responsive conduct is not willful or wanton. 5  Thus, Colbert’s products liability claims are barred by the Fireman’s Rule. Accordingly, we need not address whether Colbert is within the class of permissible plaintiffs for a breach of implied warranty claim. C. Colbert also asserts that a recent statutory amendment creating a gross negligence exception to the Fireman’s Rule applies retroactively. See Va. Code Ann. § 8.01-226 (West 2015 & Supp. 2017). We disagree. In creating a new exception, the amendment affects “substantive” rights; that is, it deals with “creation of duties, rights, and obligations.” Shiflet v. Eller, 319 S.E.2d 750, 754 (Va. 1984). Therefore, it cannot apply retroactively, see id., and we need not address the applicability of the gross negligence exception to this case. In light of the foregoing, we affirm substantially for the reasons stated by the district court. AFFIRMED 6 

Case: 14-41165 Document: 00513487896 Page: 1 Date Filed: 05/02/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 14-41165 Fifth Circuit FILED May 2, 2016 DAVID RASHEED ALI, Lyle W. Cayce Clerk Plaintiff–Appellee, v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Defendant–Appellant. Appeal from the United States District Court for the Eastern District of Texas Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges. EDWARD C. PRADO, Circuit Judge: Plaintiff–Appellee David Rasheed Ali is an observant Muslim and in the custody of the Texas Department of Criminal Justice (“TDCJ”). This appeal concerns his suit seeking permission to grow a “fist-length” (i.e., four-inch) beard and wear a kufi, a knit skullcap, as required by his religious beliefs. Ali alleges that, as applied to him, TDCJ’s grooming policy, which bans four-inch beards, and religious headwear policy, which prohibits kufis to be worn outside of an inmate’s cell or religious services, violate the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. After a five-day bench trial, the trial court granted declaratory and injunctive relief  Case: 14-41165 Document: 00513487896 Page: 2 Date Filed: 05/02/2016 No. 14-41165 enabling Ali to grow a four-inch beard and wear his kufi throughout TDCJ’s facilities. Defendant–Appellant William Stephens, in his capacity as TDCJ Director, appealed. Finding no reversible error, we AFFIRM. I. BACKGROUND Ali is confined to TDCJ’s Michael Unit, a maximum security prison. He is a “trusty” inmate, which is the lowest security level classification, and lives in a dormitory outside of the Michael Unit’s fence line. Ali is also an observant Muslim. According to Ali, his faith requires him to have a beard that is not shorter than a fist’s length, which is approximately four inches, and to wear his kufi at all times. A. Procedural Background In March 2009, Ali brought this suit, proceeding pro se, against the Director of TDCJ. 1 Ali asserted that TDCJ’s grooming and religious headwear policies violated RLUIPA to the extent they prevented him from growing a fist- length beard and wearing his kufi in accordance with his religion. 2 At the time he filed suit, TDCJ’s grooming policy required male inmates to be clean shaven. The sole exception was for inmates who had been diagnosed with certain dermatological conditions. This medical exemption allowed an inmate to shave with clippers rather than a razor and, depending on the nature of the condition, grow a quarter-inch beard. TDCJ did not provide any exemption to its grooming policy for religious reasons. Inmates that violated the grooming policy were subject to disciplinary action. In addition, TDCJ’s religious 1 Because this case is against William Stephens in his official capacity as TDCJ Director, we refer to Ali’s claims as against TDCJ itself. 2 In his complaint, Ali also brought claims under the Equal Protection Clause and the Free Exercise Clause of the United States Constitution, which the district court dismissed. See Ali v. Quarterman, 434 F. App’x 322, 324 (5th Cir. 2011). We affirmed the dismissal of those claims and rejected a claim under the Establishment Clause that Ali raised for the first time on appeal. Id. at 325–26. Ali’s constitutional claims are not at issue here. 2  Case: 14-41165 Document: 00513487896 Page: 3 Date Filed: 05/02/2016 No. 14-41165 headwear policy permitted male inmates to wear religious caps, such as kufis, only when they were within their housing area, such as a cell or dormitory, or at religious services. In his suit, Ali sought declaratory judgment, as well as preliminary and permanent injunctions requiring TDCJ to exempt Ali from its beard and kufi restrictions. In 2010, the district court denied Ali’s motion for a preliminary injunction and dismissed his complaint for failing to state a claim pursuant to 28 U.S.C. § 1915A. See Ali v. Quarterman, 434 F. App’x 322, 324 (5th Cir. 2011). This Court, however, vacated the dismissal of Ali’s RLUIPA claims concerning both the grooming and headwear policies and remanded for further proceedings. Id. at 325–26. It also vacated the denial of the preliminary injunction as to the grooming policy but held that Ali had abandoned his appeal of the denial of the preliminary injunction as to the headwear policy. Id. at 326. In February 2014, the trial court 3 granted in part a preliminary injunction that allowed Ali to grow a quarter-inch beard, relying on our intervening decision in Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013). See Ali v. Stephens, No. 9:09-CV-52, 2014 WL 495162, at *2 (E.D. Tex. Feb. 4, 2014). In Garner, a Muslim inmate brought a RLUIPA challenge seeking to grow a quarter-inch beard and wear his kufi while traveling to and from services. 713 F.3d at 241. After a bench trial, the district court in that case granted an injunction permitting the inmate to grow a quarter-inch beard but denied his kufi request. Id. TDCJ appealed, and we affirmed. 4 Id. at 240. 3 In August 2013, the district court assigned the case to Magistrate Judge Zack Hawthorn for pretrial proceedings. Ali was appointed counsel thereafter. In January 2014, the parties agreed to refer the case to Magistrate Judge Hawthorn for trial, entry of final judgment, and all post-judgment matters. 4 Because the inmate in Garner did not appeal, we did not address the denial of the injunction in regard to the headwear policy. See 713 F.3d at 241. 3  Case: 14-41165 Document: 00513487896 Page: 4 Date Filed: 05/02/2016 No. 14-41165 In this case, the trial court cited Garner to explain why it was denying Ali a preliminary injunction to grow a fist-length beard. As it noted, “the record in this case is different than the record in Garner” in part because Ali was requesting a longer beard than the one sought in Garner. Ali, 2014 WL 495162, at *3. The court also explained that TDCJ had submitted evidence that it had not in Garner, such as estimates regarding the cost of changing its grooming policy. Id. In July 2014, the trial court held a five-day bench trial. Ali called three expert witnesses, including George Sullivan and Roy Timothy Gravette, who between them had over 60 years of experience working for and auditing correctional facilities. They testified about the impact of beards and kufis based on their experience with prisons that already permitted them. TDCJ’s expert witness, Ronald Angelone, testified primarily about his experience with beards in the prison systems in which he had served as the director. Robert Eason, TDCJ’s Deputy Director, testified about TDCJ’s security interests associated with Ali’s requested exemptions and his findings related to his tours of other prisons that allow inmates to have beards and wear kufis throughout their facilities. In September 2014, the trial court granted an injunction allowing Ali to have a beard not to exceed four inches and to wear his kufi throughout TDCJ’s facilities. See Ali v. Stephens, 69 F. Supp. 3d 633, 654–55 (E.D. Tex. 2014). Among its findings of fact, it concluded that Ali’s expert witnesses were “more credible” than TDCJ’s witnesses because Ali’s witnesses “both have significant experience working in prisons where beards are allowed and [kufis] are allowed to be worn at all times.” Id. at 642. TDCJ timely appealed. B. Post-Trial Developments While this appeal was pending, the Supreme Court decided Holt v. Hobbs, 135 S. Ct. 853 (2015). The Court in Holt held that the grooming policy 4  Case: 14-41165 Document: 00513487896 Page: 5 Date Filed: 05/02/2016 No. 14-41165 of Arkansas’s prison system violated RLUIPA to the extent it prevented a Muslim inmate from growing a half-inch beard in accordance with his religious beliefs. Id. at 859. The policy at issue—like TDCJ’s policy at the time of trial— banned inmates from growing beards, with the sole exception that inmates with dermatological needs could grow facial hair no longer than a quarter-inch. Id. at 860. In response to Holt, TDCJ moved to stay its appeal while it developed a new grooming policy. We denied the stay, and TDCJ implemented its new policy prior to oral argument. Under its current grooming policy, inmates “with religious belief who want to grow a beard” are permitted, subject to TDCJ’s approval, to have a beard that is not longer than “one-half (1/2) inch in length.” 5 There is no evidence that TDCJ has changed its religious headwear policy in any pertinent respect. C. The Statutory Scheme Section 3 of RLUIPA, which concerns institutionalized persons, states: No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc–1(a). RLUIPA, which provides a private cause of action, id. § 2000cc–2(a), implements a burden-shifting framework, Chance v. Tex. Dep’t of Criminal Justice, 730 F.3d 404, 410 (5th Cir. 2013). The plaintiff’s initial burden is two-fold: he or she must show that (1) the relevant religious exercise 5TDCJ’s current grooming policy is contained in its Offender Orientation Handbook (“Handbook”), which is available online. See Tex. Dep’t of Criminal Justice, Offender Orientation Handbook (Sept. 2015), available at http://www.tdcj.state.tx.us/documents/ Offender_Orientation_Handbook_English.pdf. We have previously taken judicial notice of the Handbook, and we do so here. See Cantwell v. Sterling, 788 F.3d 507, 509 (5th Cir. 2015). 5  Case: 14-41165 Document: 00513487896 Page: 6 Date Filed: 05/02/2016 No. 14-41165 is “grounded in a sincerely held religious belief” and (2) the government’s action or policy “substantially burden[s] that exercise” by, for example, forcing the plaintiff “to ‘engage in conduct that seriously violates [his or her] religious beliefs.’” Holt, 135 S. Ct at 862 (quoting Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2775 (2014)). If the plaintiff carries this burden, the government bears the burden of proof to show that its action or policy (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc–1(a); Holt, 135 S. Ct. at 863. The Supreme Court recently emphasized that “[s]everal provisions of RLUIPA underscore its expansive protection for religious liberty.” Holt, 135 S. Ct. at 860. Courts must construe RLUIPA “in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” Id. (quoting 42 U.S.C. § 2000cc–3(g)). In addition, RLUIPA “may in some circumstances require [a] [g]overnment to expend additional funds to accommodate [inmates’] religious beliefs.” Hobby Lobby, 134 S. Ct. at 2781 (citing 42 U.S.C. § 2000cc–3(c)); see also Holt, 135 S. Ct. at 860. Finally, the law defines “‘religious exercise’ capaciously to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’” Holt, 135 S. Ct. at 860 (quoting 42 U.S.C. § 2000cc–5(7)(A)). Although RLUIPA subjects governmental action to exacting scrutiny, “it also affords prison officials ample ability to maintain security.” Id. at 866. When applying RLUIPA, “courts should not blind themselves to the fact that the analysis is conducted in the prison setting.” Id. In particular, we must recognize that “[p]rison officials are experts in running prisons and evaluating the likely effects of altering prison rules.” Id. at 864. Yet our deference is not unyielding: courts are not “bound to defer” to a prison system’s assertions. Id. “[I]t is the obligation of the courts to consider whether exceptions are required 6  Case: 14-41165 Document: 00513487896 Page: 7 Date Filed: 05/02/2016 No. 14-41165 under the test set forth by Congress.” Id. (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 434 (2006)). Thus, while we “should respect” the prison officials’ expertise, we cannot abandon “the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard.” Id. Even before Holt clarified the deference owed to prison officials under RLUIPA, we observed that “[r]ather than deferring to the prison’s general policy regarding a matter, we have consistently tested the prison’s asserted interests with regard to the risks and costs of the specific accommodation being sought.” Chance, 730 F.3d at 418; see also id. at 419 (emphasizing that the deference owed to “TDCJ’s expertise in prison administration and security . . . does have limits” (internal citation omitted)). II. STANDARD OF REVIEW After a bench trial, we review a trial court’s findings of fact for clear error and its conclusions of law de novo. Garner, 713 F.3d at 242. Under clear error review, if the trial court’s factual findings are “plausible in light of the record viewed in its entirety, we must accept them, even though we might have weighed the evidence differently if we had been sitting as a trier of fact.” Anderson v. Sch. Bd. of Madison Cty., 517 F.3d 292, 296 (5th Cir. 2008) (quoting Price v. Austin Indep. Sch. Dist., 945 F.2d 1307, 1312 (5th Cir. 1991)); see also Ogden v. C.I.R., 244 F.3d 970, 971 (5th Cir. 2001) (per curiam) (“Clear error exists when this court is left with the definite and firm conviction that a mistake has been made.”). “When reviewing a district court’s factual findings, this court may not second-guess the district court’s resolution of conflicting testimony or its choice of which experts to believe.” Grilletta v. Lexington Ins. Co., 558 F.3d 359, 365 (5th Cir. 2009) (per curiam). Credibility determinations are “peculiarly within the province of the district court.” Id. (quoting League of United Latin Am. Citizens No. 4552 v. Roscoe Indep. Sch. Dist., 123 F.3d 843, 846 (5th Cir. 1997)). Accordingly, “the clearly erroneous standard of review 7  Case: 14-41165 Document: 00513487896 Page: 8 Date Filed: 05/02/2016 No. 14-41165 following a bench trial requires even ‘greater deference to the trial court’s findings when they are based upon determinations of credibility.’” Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d 1031, 1036 (5th Cir. 2015) (quoting Luhr Bros. Inc. v. Shepp (In re Luhr Bros. Inc.), 157 F.3d 333, 338 (5th Cir. 1998)). In the context of RLUIPA, determining whether a prison system has satisfied its statutory burden is “highly dependent on a number of underlying factual issues” and, as such, is “best characterized as a mixed question of fact and law, which is subject to de novo review.” Garner, 713 F.3d at 242. Thus, although we review the court’s factual findings for clear error, we review de novo its application of those findings in determining whether the challenged government action is in furtherance of a compelling governmental interest and is the least restrictive means to advancing that interest. Id. III. DISCUSSION On appeal, TDCJ does not challenge the trial court’s holding that its grooming and religious headwear policies substantially burden Ali’s religious exercise. We therefore decline to address this issue. See Garner, 713 F.3d at 244. TDCJ instead contends the trial court erred by holding that its policies violate RLUIPA as applied to Ali because they (1) do not further any compelling governmental interests and (2) are not the least restrictive means. We first address whether the grooming policy complies with RLUIPA. A. TDCJ’s Grooming Policy TDCJ first argues that a four-inch beard constitutes “long hair” and that Fifth Circuit precedent establishes that TDCJ’s grooming policy complies with RLUIPA as a matter of law to the extent it bans long hair. In support, TDCJ relies on Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007) (per curiam). In that case, a Texas inmate alleged that his religion barred him from cutting his head hair and sought an exemption from TDCJ’s short-hair policy. Id. at 900. This 8  Case: 14-41165 Document: 00513487896 Page: 9 Date Filed: 05/02/2016 No. 14-41165 Court dismissed his RLUIPA claim as frivolous, explaining that it was bound by Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997). See Longoria, 507 F.3d at 904. The Longoria court noted that in Diaz, after an evidentiary hearing, the district court had found that “long hair . . . facilitates the transfer of contraband and weapons into and around TDCJ institutions” and “requiring prisoners to have short hair makes it more difficult for escaped prisoners to alter their appearance.” Longoria, 507 F.3d at 904 (alteration in original) (quoting Diaz, 114 F.3d at 72–73). This Court then concluded that the evidentiary showing in Diaz was “sufficient to preclude [the inmate’s] RLUIPA claim” to grow long, unshorn head hair. Longoria, 507 F.3d at 904. Longoria, however, does not foreclose Ali’s request for a four-inch beard. As we observed, RLUIPA compels a “fact-intensive inquiry” into the particular costs and risks that the requested exemption engenders. Chance, 730 F.3d at 418 (quoting Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781, 795– 96 (5th Cir. 2012)). We, in turn, have repeatedly conducted “case-specific inquiries” when addressing a RLUIPA claim. Id. at 411 (citing Garner, 713 F.3d at 245–46 and Moussazadeh, 703 F.3d at 795–96); see id. (“[O]ur RLUIPA analysis requires a careful consideration of each case’s specific facts . . . .”). For instance, we have even recognized that a holding against an inmate that assembled a “thin” record does not “foreclose” another inmate from subsequently demonstrating less restrictive means are available. Moussazadeh, 703 F.3d at 795; see also Yellowbear v. Lampert, 741 F.3d 48, 62 (10th Cir. 2014) (“[T]he feasibility of requested exceptions usually should be assessed on a ‘case-by-case’ basis, taking each request as it comes.” (quoting O Centro, 546 U.S. at 436)). Therefore, in assessing Ali’s request for a four-inch beard, we focus on the record before us to analyze whether TDCJ has “not merely . . . explain[ed] why it denied the exemption [to its grooming policy] but . . . prove[d] that denying the exemption is the least restrictive means of 9  Case: 14-41165 Document: 00513487896 Page: 10 Date Filed: 05/02/2016 No. 14-41165 furthering a compelling governmental interest.” 6 Holt, 135 S. Ct. at 864. For the reasons provided, we conclude that TDCJ has not met this burden. 1. The “Compelling Interest” Test In deciding whether TDCJ has stated a compelling interest, the court does not ask if the challenged policy, in general, furthers a compelling governmental interest in security and costs. Id. at 863; see also Chance, 730 F.3d at 418. Instead, the government must show that “the compelling[-]interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Holt, 135 S. Ct. at 863 (quoting Hobby Lobby, 134 S. Ct. at 2779). This requires “scrutiniz[ing] the asserted harm of granting specific exemptions to particular religious claimants” and “‘look[ing] to the marginal interest in enforcing’ the challenged government action in that particular context.” Id. (quoting Hobby Lobby, 134 S. Ct. at 2779). Applied in this case, we assess TDCJ’s interests in preventing Ali from having a four-inch beard. Moreover, determining whether TDCJ’s policy is “substantially underinclusive” may “implicate the RLUIPA analysis.” Id. at 865. As the Tenth Circuit elaborated in the RLUIPA context, “[a] law’s underinclusiveness—its failure to cover significant tracts of conduct implicating the law’s animating and putatively compelling interest—can raise with it the inference that the government’s claimed interest isn’t actually so compelling after all.” Yellowbear, 741 F.3d at 60; see also Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668 (2015) (“Underinclusiveness can . . . reveal that a law does not actually advance a compelling interest.”). We have similarly observed that a prison 6 A case-specific approach comports with our observation that the hair length requested by an inmate can affect the RLUIPA analysis. See Odneal v. Pierce, 324 F. App’x 297, 301 (5th Cir. 2009) (per curiam) (unpublished); Gooden v. Crain, 255 F. App’x 858, 861 n.1 (5th Cir. 2007) (per curiam) (unpublished). 10  Case: 14-41165 Document: 00513487896 Page: 11 Date Filed: 05/02/2016 No. 14-41165 system’s justification for denying an inmate’s requested privilege is “dampened” where it affords other inmates a similar privilege. Moussazadeh, 703 F.3d at 795–96. The Supreme Court’s analysis in Holt is instructive. The Court found the prison system’s grooming policy “substantially underinclusive” in two respects. Holt, 135 S. Ct. at 865. First, although the prison system did not allow inmates to grow half-inch beards as the plaintiff requested, it “permit[ted] inmates to grow more than a [half]-inch of hair on their heads.” Id. Yet the prison system’s policy did not require inmates to “go about bald” even though head hair is “a more plausible place to hide contraband than a [half]-inch beard.” Id. at 866. An inmate’s clothing and shoes similarly were better hiding places for contraband yet inmates were not required to be “barefoot[] or naked.” Id. Second, in light of the fact that the prison already permitted quarter-inch beards for inmates with dermatological conditions, it had failed to establish “that a [quarter]-inch difference in beard length poses a meaningful increase in security risk.” Id. 2. The “Least Restrictive Means” Test The least-restrictive-means test “‘is exceptionally demanding,’ and it requires the government to ‘sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].’” Id. at 864 (alterations in original) (quoting Hobby Lobby, 134 S. Ct. at 2780). The challenged policy cannot stand if “available, effective alternatives” are less restrictive of the inmate’s religious exercise. Moussazadeh, 703 F.3d at 795 (quoting Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004)). Moreover, courts “must not ‘assume a plausible, less restrictive alternative would be ineffective.’” Holt, 135 S. Ct. at 866 (quoting United States v. Playboy Entm’t Grp., 529 U.S. 803, 824 (2000)). The state’s burden is not to show that it considered the claimant’s proposed alternatives 11  Case: 14-41165 Document: 00513487896 Page: 12 Date Filed: 05/02/2016 No. 14-41165 but rather to demonstrate those alternatives are ineffective. See Yellowbear, 741 F.3d at 63. 3. Analysis TDCJ argues that a blanket prohibition on four-inch beards is the least restrictive means of furthering its compelling interest in (1) preventing the transfer of contraband within prison; (2) facilitating identification of inmates within prison and in the event an inmate escapes; and (3) controlling costs and, relatedly, maintaining orderly prison administration. The trial court rejected each of these arguments, holding that TDCJ did not prove that any of its asserted interests satisfied either the compelling-interest or least-restrictive- means test as applied to Ali. We analyze each interest in turn. a. Preventing contraband TDCJ contends its grooming policy is the least restrictive means of furthering its compelling interest in combatting the transfer of contraband within its facilities. The trial court found that “[p]ossession of contraband by inmates is one of the largest security issues in TDCJ.” It also found that, based on testimony from both Ali’s and TDCJ’s witnesses, contraband has been discovered in inmates’ beards at prisons that permit longer beards, specifically, the Federal Bureau of Prisons (“BOP”) and the California Department of Corrections and Rehabilitation (“CDCR”). The court observed, however, that TDCJ had failed to introduce documentary evidence in support of its position and held that banning Ali’s four-inch beard would not further a compelling interest in preventing contraband. We disagree with the trial court’s application of its factual findings to the compelling-interest test in this case. TDCJ clearly has “a compelling interest in staunching the flow of contraband into and within its facilities.” Holt, 135 S. Ct. at 863. While “prison officials’ mere say-so” may be insufficient to satisfy RLUIPA, id. at 866, the trial court erred by overemphasizing the lack 12  Case: 14-41165 Document: 00513487896 Page: 13 Date Filed: 05/02/2016 No. 14-41165 of documentary evidence, particularly given the fact that Ali’s own expert, Tim Gravette, testified that contraband had been found in beards in BOP facilities where he has worked. More importantly, the record indicates that a fist-length beard poses a greater risk with regard to contraband than a half-inch beard, which is the length Holt sanctioned and TDCJ permits under its current policy. In Holt, none of the witnesses testified to “any instances . . . in Arkansas or elsewhere” in which an inmate hid contraband in a half-inch beard. Id. at 861. The Supreme Court, in turn, rejected the prison system’s argument that banning such beards furthered a compelling interest in rooting out contraband. Id. at 863. In contrast, the record here indicates that inmates can and do hide contraband in longer beards. Thus, the difference in length between the beard permitted under TDCJ’s current policy and the beard requested here poses a meaningful increase in security risks vis-à-vis the threat of contraband smuggling. Ali responds that TDCJ’s grooming policy is underinclusive because it permits an entire class of persons—female inmates—to have hair that is “much longer and thicker than a fist-length beard.” TDCJ’s female inmates are permitted to grow long hair, which must be neatly groomed, yet TDCJ did not introduce any evidence of finding contraband in a female inmate’s hair. According to Ali, the underinclusiveness of TDCJ’s grooming policy is substantial because of the trial court’s finding that female inmates commit the same type of disciplinary infractions as men, although at a slightly lower rate on a per capita basis. Even though TDCJ’s policy concerning its female inmates is relevant to our analysis, we find that TDCJ has an adequate explanation for its differential treatment. As the Tenth Circuit has noted, a government can rebut a claim that its policy is underinclusive “by showing that it hasn’t acted in a logically inconsistent way—by (say) identifying a qualitative or quantitative 13  Case: 14-41165 Document: 00513487896 Page: 14 Date Filed: 05/02/2016 No. 14-41165 difference between the particular religious exemption requested and other . . . exceptions already tolerated.” Yellowbear, 741 F.3d at 61. At trial, TDCJ introduced evidence indicating that the contraband threat posed by male inmates is qualitatively different than that of female inmates. TDCJ’s Senior Warden, Elizabeth Bailey, testified that the type of contraband female inmates smuggle is a lesser security concern because they tend to be non-dangerous items such as eyeliner or lipstick whereas men are more likely to smuggle cell phones or weapons. Further, as the trial court found, there are fewer correctional officers (“COs”) per prisoner for its male prisons than its female prisons. In light of the record, we cannot say that TDCJ’s stricter hair-length policy for male inmates is so inconsistent with its asserted interest in security that the challenged policy is substantially underinclusive. Consequently, we hold the trial court erred in concluding that TDCJ’s ban on four-inch beards did not satisfy the compelling-interest test. Our inquiry, however, does not end here. TDCJ must also prove that its current grooming policy is the least restrictive means, a burden the trial court concluded TDCJ did not meet. We agree given the record before us. The trial court found that when searching male inmates, TDCJ’s procedure is to have COs visually inspect short hair and “require inmates with longer hair to shake out their own hair with their fingers.” It also found that TDCJ policy is to deny an inmate a religious devotional item if an inmate misuses that item or “present[s] a security risk based on documented behavior.” The court then held that an effective alternative to banning all four- inch beards would be to have the CO perform the same search of a beard “as is done [for] searches of hair”: the CO can visually inspect the beard and, if necessary, have the inmate run his fingers through his beard. The court also noted that, in conjunction with these searches, TDCJ could revoke an inmate’s beard privilege if he abused it or refused to comply with the searches. 14  Case: 14-41165 Document: 00513487896 Page: 15 Date Filed: 05/02/2016 No. 14-41165 The trial court did not err in light of the record. Ali’s expert witness, George Sullivan, testified that, based on his experience auditing prisons that allow longer beards and personally conducting searches as a CO, a visual inspection accompanied by having the inmate shake his own beard, if needed, effectively reveals contraband. Tim Gravette, Ali’s other expert, similarly testified that COs can search long beards by having an inmate shake out his beard hair, which is the technique used by BOP. 7 Finally, Holt bolsters the court’s conclusions. In that case, the Supreme Court found that a less restrictive alternative to prohibiting beards would be to require inmates to conduct a self-search, albeit with a comb rather than his fingers, and that an institution could revoke an accommodation should an inmate abuse it. Holt, 135 S. Ct. at 864, 867. TDCJ responds that the trial court committed reversible error because it did not “afford any level of deference” to the testimony of its witnesses. Specifically, it argues that the trial court should have deferred to two TDCJ officials, Director Robert Eason and Warden Todd Foxworth, who it claims testified that having inmates shake out their own beards would be unworkable because an inmate can manipulate the self-search in a way that avoids 7 The parties dispute the applicability of the policies of BOP and CDCR. The trial evidence indicated that both prison systems allow four-inch beards and kufis to be worn throughout their facilities. TDCJ argues that the trial court “attached unprecedented weight to [the] evidence of other prison systems’ grooming and kufi policies,” specifically, that of BOP and CDCR. The trial court, however, acknowledged the differences among systems, especially with regard to BOP’s and CDCR’s larger budgets and different surveillance equipment. The court also noted that, although BOP has a bigger budget, it also has “a much larger inmate population” and “more offenders per correctional officer than TDCJ.” The court did not err in concluding that, although there are “clearly differences” among the systems, it “[does] not preclude comparisons” and that the other policies are pertinent evidence that inform its analysis. See, e.g., Holt, 135 S. Ct. at 866 (“While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction.” (quoting Procunier v. Martinez, 416 U.S. 396, 414, n.14 (1974))); Garner, 713 F.3d at 247. 15  Case: 14-41165 Document: 00513487896 Page: 16 Date Filed: 05/02/2016 No. 14-41165 revealing contraband. 8 We find that the trial court did not so err. To begin, contrary to TDCJ’s characterization of Director Eason’s testimony, his testimony is consistent with that of Ali’s experts. In discussing how he would search fist-length beards, he testified that he would have inmates “run their fingers through that beard.” Importantly, he did not express any concern that such searches would fail to reveal contraband, although he averred that self- searches would “take a little more time” than visual inspections. Such testimony—while relevant to TDCJ’s separate interest in administrative costs, which we address below—does not support TDCJ’s argument that self- searches would not uncover contraband. 9 As for Warden Foxworth, he testified that having inmates run their fingers through their beards was not “feasible . . . simply because of the consistency of beards” in that “[s]ome people have very thick beards.” He also testified that some inmates “can’t really grow a beard” and that “each [inmate] is going to be different.” We cannot say that the trial court failed to adequately defer to this testimony. In its holding, the court found that beard hair can be searched in the same way as head hair—which does not have a prescribed 8 TDCJ also argues that the “sole alternative to prohibiting long beards” would be to have the CO physically touch the inmate’s beard and that this technique would seriously compromise the CO’s safety because it requires the CO to stand in the inmate’s “strike zone,” which, according to TDCJ, is “a proximity considered to be dangerous and is avoided when possible.” Because we find no clear error in the trial court’s findings regarding self-searches, we do not address TDCJ’s contention regarding searches in which the CO touches an inmate’s beard. 9 Director Eason also raised the possibility that if the CO discovered contraband in an inmate’s beard, the inmate may refuse to take the contraband out of the beard, leading to a confrontation with the inmate. However, as the district court found, contraband can be discovered “in any article of clothing, in an inmate’s genitals or anus, or it can be swallowed.” Director’s Eason testimony is unconvincing to the extent that TDCJ fails to explain why an inmate would be reluctant to hand over contraband that has been found in his beard but not contraband found in or on any other part of the inmate’s body. See Holt, 135 S. Ct. at 864 (refusing to find that search of a beard would be an ineffective alternative where the prison system’s assertion regarding risks to guard safety would be “no less true for searches of hair, clothing, and [quarter]-inch beards”). 16  Case: 14-41165 Document: 00513487896 Page: 17 Date Filed: 05/02/2016 No. 14-41165 length limit under TDCJ’s policy so long as it is “neatly cut.” Although we must respect a prison official’s expertise, the trial court in this case did not exceed its prerogative as a fact finder in resolving competing testimony in Ali’s favor where, as here, its finding was supported by testimony from both Ali’s experts and TDCJ’s own witness. Cf. Knight v. Thompson, 797 F.3d 934, 945 (11th Cir. 2015) (noting that, in the RLUIPA context, the trial court “as the finder of fact, remain[s] free to reject” witnesses’ testimony that is contradicted). 10 b. Inmate identification TDCJ contends that its grooming policy is necessary to further a compelling interest by aiding in the identification of inmates within the prison and inmates who escape. As to within-prison identification, the evidence introduced at trial indicated that inmates are provided an identification card containing their photograph and biographical information. Director Eason’s testimony was that inmates “are identified by their identification cards [eight] times each day at count and several other times throughout the day.” TDCJ, citing this policy, claims that its ban on four-inch prevents an inmate from 10 In Knight, the plaintiffs, a group of Native American inmates, brought a RLUIPA challenge against the Alabama prison system, seeking a “complete religion-based exemption” from its short-hair policy for male inmates that would allow them to grow long, unshorn hair. 797 F.3d at 937. The district court, after a bench trial, found that Alabama had carried its burden under RLUIPA, and the Eleventh Circuit affirmed. Id. Although the Eleventh Circuit ruled in favor of the prison system, much of its reasoning helps Ali. The court repeatedly emphasized that its RLUIPA analysis was tied to the district court’s particular factual findings and resolution of competing evidence. See, e.g., id. at 941, 944 (“[Appellants] merely mount an attack on the District Court’s factual findings and choice to credit the testimony of [appellee’s] witnesses.”). Our RLUIPA analysis, like that of the Eleventh Circuit, is specific to the record and the trial court’s findings, including those based on its assessment of conflicting testimony. In addition, the Knight opinion is distinguishable because the case involved a request for a complete exemption in order to wear head hair unshorn, which raises factual issues that are distinct from a request for a beard that is four-inches. Id. at 937. As the Eleventh Circuit observed in a related opinion, “RLUIPA requires us to scrutinize the asserted harm of granting [the] specific exemption of long, unshorn hair.” Knight v. Thompson, 796 F.3d 1289, 1292 (11th Cir. 2015) (emphasis added) (referencing Holt, 135 S. Ct. at 863). 17  Case: 14-41165 Document: 00513487896 Page: 18 Date Filed: 05/02/2016 No. 14-41165 being able to shave his beard and thereby no longer resembling the picture on his card. It also contends that it is especially reliant on identification cards because, according to Director Eason, officers are often rotated within their units to prevent the staff from becoming “overly familiar” with inmates and “complacent.” Further, TDCJ introduced evidence that beards hinder identification because they can cover identifying marks and facial tattoos. The trial court rejected TDCJ’s arguments that banning Ali from having a four-inch beard satisfies the compelling-interest test with respect to inmate identification. In light of the governing case law and the record below, we agree. In Garner, we considered a similar contention with respect to quarter- inch beards. 713 F.3d at 247. Rejecting this argument, we reasoned that even though TDCJ “presented evidence that allowing inmates to have beards hinders inmate identification,” it failed to carry its burden because “TDCJ allows inmates to shave their heads, and there was testimony that shaved heads pose just as many identification problems as allowing prisoners to grow and shave beards.” Id. In Holt, the Supreme Court rejected a similar argument concerning the risk that inmates would shave to disguise themselves and even swap identification cards with each other. 135 S. Ct. at 865. The Court responded that the prison system “failed to establish why the risk that a prisoner will shave a [half]–inch beard to disguise himself is so great that [half]–inch beards cannot be allowed, even though prisoners are allowed to grow mustaches, head hair, or [quarter]–inch beards for medical reasons.” Id. These other kinds of hair “could also be shaved off at a moment’s notice, but the [the prison system] apparently does not think that this possibility raises a serious security concern.” Id. The reasoning of Garner and Holt apply with equal force based on the record here. The parties’ evidence establish that an inmate can alter his appearance in many ways under TDCJ’s current policy. An inmate, for 18  Case: 14-41165 Document: 00513487896 Page: 19 Date Filed: 05/02/2016 No. 14-41165 instance, could shave his head, shave his quarter-inch beard (if he is permitted to grow one for medical reasons), or change his hairstyle. Further, Ali’s expert, Tim Gravette, disagreed with TDCJ’s witnesses who testified that permitting inmates to wear beards would create problems with identification, stating that there are many ways an inmate could alter his appearance. Because of the various ways an inmate can permissibly change his appearance, TDCJ has not shown that denying Ali’s request for a four-inch beard furthers a compelling interest as to within-prison inmate identification. Cf. Schlemm v. Wall, 784 F.3d 362, 366 (7th Cir. 2015) (observing in response to a prison system’s asserted interest in suppressing gang identification that “it is difficult to depict as ‘compelling’ a desire to cut out one potential means of [gang] identification” where other means of identification were “widely available already”). TDCJ’s change in grooming policy—which now permits inmates to grow half-inch beards for religious reasons—also undermines its position. See Moussazadeh, 703 F.3d at 795–96 (accounting for TDCJ’s change in policy in assessing a RLUIPA challenge). As noted, the compelling-interest test focuses on TDCJ’s “marginal interest” in denying the accommodation. Holt, 135 S. Ct. at 863. We abided by this principle in Garner: in analyzing an inmate’s request for a quarter-inch beard, we looked to whether there was “evidence that TDCJ would encounter greater or added difficulty if it enforced a one-quarter-inch as opposed to a clean-shaven rule.” 713 F.3d at 246 (emphasis added). Here, we focus on the additional risk of permitting a four-inch beard instead of enforcing a half-inch limit. TDCJ’s arguments concern how beards in general hinder identification, namely, they cover face tattoos and allow an inmate to change his appearance by shaving. Yet the testimony of TDCJ’s officials indicated that half-inch beards, which TDCJ presently allows, also pose such risks. TDCJ in fact concedes that “easy identification of an inmate with a facial tattoo would be hampered whether there was a short beard or a long beard.” Therefore, with 19  Case: 14-41165 Document: 00513487896 Page: 20 Date Filed: 05/02/2016 No. 14-41165 respect to its interest in within-prison identification, TDCJ fails to adequately address the risks associated with the three-and-a-half-inch difference in beard length. 11 See Holt, 135 S. Ct. at 866. In addition, even if we assumed that banning all beards over a half-inch furthered a compelling interest by facilitating within-prison identifications, TDCJ has not proved its policy is the least restrictive means. The trial court found that a less restrictive alternative would be to maintain two photographs of the inmate, one with the beard and one without. In Holt, the Supreme Court condoned the “dual-photo method” in which prison officials would have “a bearded and clean-shaven photo to use in making identifications.” Id. at 865. The Court highlighted that Arkansas, “like many other States,” already had a policy of “photographing a prisoner both when he enters an institution and when ‘his appearance changes at any time during [his] incarceration.’” Id. (alteration in original). Just so here. TDCJ’s policy—like that of Arkansas and the other prison systems referenced in Holt—is to photograph an inmate during intake and to take a new photograph if his appearance changes while in TDCJ custody. Therefore, as we held in Garner, TDCJ’s identification concerns can be “addressed by requiring an inmate to have his identification picture changed if he grows or shaves his beard” given that TDCJ already requires a new picture when an inmate alters his appearances “in any way.” 713 F.3d at 247. Indeed, TDCJ has incorporated this method into its new grooming policy—TDCJ will issue a new identification card to an inmate permitted to grow a half-inch beard for religious reasons. TDCJ has not explained why it cannot use the same technique for a beard that is four inches. 11It is worth noting that Ali does not seek permission to consistently change the style or shape of his beard. He seeks only to maintain a four-inch beard, which, as the trial court found, he can do by clasping his hand around his beard and using clippers to trim the protruding hair. 20  Case: 14-41165 Document: 00513487896 Page: 21 Date Filed: 05/02/2016 No. 14-41165 As to identifying escaped prisoners, TDCJ argues that its policy prevents an inmate from significantly changing his appearance by shaving upon escape. TDCJ also claims that because it publicly releases a photograph when an inmate escapes, it would cause confusion and impede identification if TDCJ had to release multiple photographs, such as one photograph with the beard and one without. The trial court acknowledged but ultimately rejected TDCJ’s assertions and, on this record, we cannot say that it was incorrect. The evidence adduced at trial indicated that after escaping, an inmate can change his appearance in many ways, such as by growing or cutting his hair or facial hair, dyeing his hair, wearing a hat, or donning glasses. TDCJ’s witness Senior Warden Bailey agreed that such steps would alter an inmate’s appearance. Further, Ali’s expert, George Sullivan, testified that having to release more than one picture of the inmate if he escaped would not pose a security risk. Sullivan explained that law enforcement officials already release both the most recent picture of the inmate and one that projects his potential change in appearances, and such a practice does not confuse the public. Thus, as in Garner, we are unpersuaded by TDCJ’s argument regarding identifying escaped inmates where the evidence established an inmate could “chang[e] his appearance outside of the prison” in many ways. Id. Holt also bolsters this conclusion: the prison system there argued that inmates could change their appearance by shaving in order “to escape[] and to evade apprehension after escaping,” but the Court found that the prison system did not carry its burden, emphasizing the other ways an inmate could change his appearance. 135 S. Ct. at 864. c. Cost control and prison operations TDCJ also argues that its policy is the least restrictive means of advancing its compelling interests in controlling costs and ensuring orderly program administration. “[C]ost reduction, as a general matter, is 21  Case: 14-41165 Document: 00513487896 Page: 22 Date Filed: 05/02/2016 No. 14-41165 unquestionably a compelling interest of TDCJ.” Moussazadeh, 703 F.3d at 795. TDCJ relatedly has a compelling interest in maintaining the orderly administration of its operations. See Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007). RLUIPA, however, “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” Garner, 713 F.3d at 245 (quoting 42 U.S.C. § 2000cc–3(c)). In determining whether a cost is compelling, a court may need to “put th[e] amount in perspective” by measuring the projected expense against the resources devoted to that interest. Moussazadeh, 703 F.3d at 795. For instance, in Moussazadeh, the inmate requested kosher food, which TDCJ denied citing cost concerns. Id. at 794. In the subsequent RLUIPA challenge, the evidence indicated that the annual cost to provide the accommodation at most would be “about $88,000” whereas TDCJ’s total food budget was $183.5 million. Id. at 795. We responded by noting our “skeptic[ism] that saving less than .05% of the food budget constitutes a compelling interest,” although “we decline[d] to draw a bright-line rule.” Id. TDCJ argues that if four-inch beards were allowed, then staff would spend additional time searching those beards. The added time, according to TDCJ, would disrupt its daily schedule and impose significant costs because it would have to pay staff for the search time. Further, TDCJ asserts that because it is responsible for statewide policies, its costs must be measured on a statewide basis. It contends that its cost estimates should be based on the number of inmates statewide who belong to a faith group “that ha[ve] requested or ha[ve] a religious basis to request a beard.” That number, according to TDCJ, is 131,478 inmates, which represents 94% of TDCJ’s total male inmate population. TDCJ claims that if 25% of those inmates—which totals 32,870 inmates—requested and were granted permission to grow a four- 22  Case: 14-41165 Document: 00513487896 Page: 23 Date Filed: 05/02/2016 No. 14-41165 inch beard, then COs would spend 182.6 hours searching beards every day. 12 It claims that 182.6 hours of staff salary equals $1,110,372.34 annually and that its interest in saving that amount is compelling. 13 The trial court rejected TDCJ’s projections. It noted that Ali’s expert, George Sullivan, testified that, in his experience in prisons that allow beards, 30 to 40% of Muslim inmates grew beards. Relying on this testimony, the court considered the time spent searching four-inch beards if 40% of Muslim inmates in the Michael Unit chose to grow such a beard and found that it would take 34 minutes each day. The court found that any additional time spent searching beards would either be absorbed by existing staff, thus costing TDCJ nothing, or, even if new staff was hired to search beards, amount to $3,445.84 each year, an insignificant fraction of TDCJ’s $3 billion budget. The trial court did not commit clear error in rejecting TDCJ’s estimates regarding the number of inmates that are likely to request a fist-length beard. TDCJ officials admitted there had been no studies or surveys to determine the number of inmates that would seek to grow beards. See Garner, 713 F.3d at 245–46 (holding that the district court’s “finding that any increased costs would be insignificant” was not “clearly erroneous” where TDCJ had conducted “no studies concerning the costs of allowing inmates to grow beards”). Nor was the trial court bound to accept TDCJ’s predications in light of the speculative nature of the testimony of TDCJ’s witnesses. TDCJ’s cost estimates were based on 25% of inmates that belong to a faith group that, according to TDCJ Chaplain Billy Pierce, may have a religious basis for requesting an exemption if those inmates chose to request one. However, Chaplain Pierce’s testimony 12 TDCJ’s estimates are based on the trial court’s finding that a search of a four-inch beard takes five seconds and that, on average, an inmate would be searched four times daily, thus totaling twenty seconds per day per inmate. 13 To estimate costs, the TDCJ multiplied (1) the COs’ average hourly wage—$16.66— and (2) the time it takes per day to search a beard. 23  Case: 14-41165 Document: 00513487896 Page: 24 Date Filed: 05/02/2016 No. 14-41165 concerned the number of inmates that “could possibly ask” for a beard. TDCJ did not present any evidence that many of the faith groups identified by Chaplain Pierce have in fact petitioned for a beard similar in length to Ali’s request. Warden Foxworth similarly stated in a conclusory manner that if the “privilege” to grow a long beard “is out there,” an inmate is “go[ing to] do it.” He then “speculate[d]” that if Ali’s request was granted, there would be “a lot of . . . [one]-inch, inch and a half, [two]-inch beards.” Such conjecture does not satisfy TDCJ’s burden. See id. at 246; cf. Hobby Lobby, 134 S. Ct. at 2783 (rejecting, in the analogous context of the Religious Freedom Restoration Act of 1993, the government’s argument that ruling in favor of the plaintiff “will lead to a flood of religious objections” when the government fails to “substantiate this prediction”). Further, we cannot disturb the trial court’s finding that existing staff will absorb the time spent searching beards because we are not left with “the definite and firm conviction” that this finding is a mistake. Ogden, 244 F.3d at 971. The trial court’s finding was based on its estimations regarding the time that would be spent searching beards requested by Muslim inmates in the Michael Unit. The estimated 34 minutes each day spent searching beards was compared to the roughly 74,160 minutes of CO time spent staffing Michael Unit each day. TDCJ responds that the proper scope of the cost inquiry is not the Michael Unit but rather all TDCJ’s facilities. Although we agree that TDCJ must be able to consider statewide ramifications when responding to a RLUIPA challenge, the magistrate judge did not err in refusing to engage in such an analysis given the record. As it noted, “there [was] no evidence in the record for the court to determine the amount of correctional officer hours worked state-wide on a daily basis.” RLUIPA does not require “unquestioning acceptance” of a prison system’s assertions. Holt, 135 S. Ct. at 864. Therefore, in order for a court to evaluate whether the time spent searching statewide 24  Case: 14-41165 Document: 00513487896 Page: 25 Date Filed: 05/02/2016 No. 14-41165 inmates would be absorbed by existing staff, TDCJ must provide some concrete evidence regarding its statewide resources allocated to its asserted interest. Lastly, TDCJ’s contentions regarding the costs and disruption caused by four-inch beards are undercut by its change in policy. For instance, TDCJ introduced evidence concerning the costs associated with providing a religious exemption to its no-beard policy, such as having to issue new identification cards with updated photographs, provide beard covers for kitchen workers, and process an inmate’s request to grow a beard. Yet TDCJ’s current grooming policy allows inmates to grow a half-inch beard for religious reasons. Therefore, TDCJ already must bear many of the administrative costs it cited at trial. TDCJ has not shown it will bear a significantly greater burden in this respect by permitting an inmate to grow a beard that is three-and-one-half-inches longer than is currently permitted. Accordingly, based on the record before us, we conclude that TDCJ has not carried its burden under RLUIPA with respect to its denial of Ali’s request for a fist-length beard not to exceed four inches. 14 B. TDCJ’s Religious Headwear Policy TDCJ argues that its religious headwear policy, like its grooming policy, furthers its compelling interest in (1) preventing the spread of contraband, (2) allowing for rapid identification of inmates within prison, and (3) controlling 14 TDCJ also argues that the trial court clearly erred by discounting the testimony of its expert, Ron Angelone, concerning inmate hygiene and that hygiene is a compelling state interest that TDCJ’s grooming policy furthers. It specifically points to the fact that Angelone, TDCJ’s expert, implemented a clean-shaven grooming policy for hygienic reasons when he was director of Virginia’s correctional facilities. We find the trial court did not clearly err in this regard. In addressing Angelone’s testimony, the trial court noted that part of his testimony was contradicted by TDCJ’s medical expert, Dr. Bobby Vincent. Specifically, the court noted that Angelone had expressed concerns with lice, but Dr. Vincent’s testimony indicated that “having longer hair does not increase the incidence of lice.” Further, Angelone’s testimony regarding the hygienic benefits of a clean-shaven policy is insufficient to carry TDCJ’s burden that its grooming policy—which allows for shorter beards—is the least restrictive means to further a compelling interest in inmate hygiene. 25  Case: 14-41165 Document: 00513487896 Page: 26 Date Filed: 05/02/2016 No. 14-41165 costs and maintaining orderly operations. The trial court rejected these arguments and held that none of TDCJ’s assertions satisfied either the compelling-interest or the least-restrictive-means test as applied to Ali. As explained below, we conclude that TDCJ has not satisfied its burden. 1. Analysis TDCJ’s religious headwear policy allows inmates to wear a kufi in their cells and at religious ceremonies but prohibits them from wearing them in other areas of the prison. As such, we address each of TDCJ’s assertions by focusing on TDCJ’s interest in enforcing its religious headwear policy to prohibit Ali from wearing his kufi outside of his cell and religious services. a. Preventing contraband The trial court held that, although an inmate “could hide contraband in or under a [k]ufi,” TDCJ had failed to carry its burden to show that its headwear policy furthered a compelling interest in combatting contraband. In support, it noted that although TDCJ already permits inmates to wear kufis in their cell and at religious ceremonies and that some inmates are allowed to wear hats for work assignments, it failed to produce evidence of a single incident in which contraband was hidden “in or under a religious head covering, or even under a work cap.” TDCJ responds that the testimony of its witnesses established that inmates will hide contraband in kufis if they are allowed to wear them throughout the facilities, despite the fact that a kufi, as TDCJ notes, “is not the easiest place to hide something.” Even assuming that TDCJ’s headwear policy furthers a compelling interest in combatting contraband, TDCJ did not carry its burden to show that its current policy is the least restrictive means. The trial court found that Ali, like many Muslim inmates, are already allowed to possess a kufi, to wear them in their housing areas and at religious services, and to transport the kufis to and from religious services. Ali also owns another religious item, a prayer rug, 26  Case: 14-41165 Document: 00513487896 Page: 27 Date Filed: 05/02/2016 No. 14-41165 which he carries to and from services. TDCJ’s policy is to search Ali’s kufi and prayer rug when he returns from services. TDCJ also frequently searches other items of clothing, such as hats or jackets. The trial court, in turn, concluded that a lesser restrictive alternative would be to search the kufis during routine inmate searches and, as it already does for religious devotional items, revoke any kufi privilege if it is abused. TDCJ claims that searching the kufi would be ineffective because inmates will resist searches of a religious item and even threaten to sue. According to TDCJ, inmate resistance will deter COs from conducting searches, and inmates will then use kufis to smuggle contraband. We find TDCJ’s argument unavailing in light of the district court’s findings and the record below. TDCJ permits inmates to have kufis and prayer rugs and inmates are already required to make them available for inspection by COs. TDCJ fails to adequately explain why it can search an inmate’s kufi when he is traveling with it to and from religious services but not if he was to wear it at other times. Further, TDCJ has not shown why it is impracticable to revoke kufi privileges for those inmates that resist such searches. See id. at 866–67 (“[A]n institution might be entitled to withdraw an accommodation if the claimant abuses the exemption in a manner that undermines the prison’s compelling interests.”). b. Inmate identification The trial court rejected TDCJ’s assertion that its policy regarding kufis satisfies the compelling-interest test with respect to within-prison identification. It provided three reasons. First, male inmates could still alter their appearance by shaving or changing their hairstyle. Second, other types of head coverings that TDCJ permits, such as caps that are authorized for certain jobs, change how an inmate looks “as much as a [k]ufi.” Third, female inmates that are Muslim are permitted to wear a hijab throughout its facilities. 27  Case: 14-41165 Document: 00513487896 Page: 28 Date Filed: 05/02/2016 No. 14-41165 As the district court found, a hijab is a headscarf that is “larger” and “cover[s] more of the head” than a kufi. The court then concluded that kufis may actually help rather than hamper identification. TDCJ contends that, contrary to the trial court’s conclusion, kufis will hinder rather than facilitate inmate identification. TDCJ asserts that an inmate may wear a kufi sporadically and that, in turn, kufis will impede rapid identification should an inmate choose to wear his kufi one day and then remove it the next day. However, in light of Holt and Ali’s evidence, we are unpersuaded that TDCJ has met its burden on this point. The prison system in Holt asserted that identification concerns are “particularly acute” because inmates “live in barracks and work in fields.” 135 S. Ct. at 865. As noted, the Court rejected this argument because of the other ways that an inmate can disguise himself “at a moment’s notice,” including shaving his head hair or his quarter-inch beard. Id. TDCJ’s policies permit an inmate to take similar steps that would change his appearance. Additionally, the prison also permits male inmates to wear other garments that impede identification, such as hats while working in the kitchen or outdoors and jackets when it is cold. Further, TDCJ argues that kufis hinder identification by covering tattoos on the top of an inmate’s head, including tattoos that are used as gang identifiers. It cites the testimony of Robert Grant, an official in TDCJ’s Security Threat Group, who stated that a kufi would potentially hide a gang- related tattoo. TDCJ argues that it is crucial that it monitor tattoos so it can identify an inmate’s gang affiliation. We acknowledge TDCJ’s compelling interest in identifying inmates’ gang affiliation. However, on this record, TDCJ has not shown its kufi restriction is the least restrictive means to furthering this interest or its interest in identification generally. At trial, TDCJ introduced photographs of inmates with tattoos that would be covered by a kufi. The trial court found such 28  Case: 14-41165 Document: 00513487896 Page: 29 Date Filed: 05/02/2016 No. 14-41165 evidence unconvincing, explaining that for each photograph the inmate could have been identified by facial tattoos that a kufi would not cover. Equally important, the trial court also held that a less restrictive alternative would be to have the inmate remove his kufi should the CO need to identify the inmate or his gang affiliation and, if necessary, revoke the privilege if it is misused. 15 TDCJ’s witness, Robert Grant, agreed that he would be able to determine the necessary gang-related information by requiring the inmate to remove the kufi. Finally, the court found that TDCJ’s current policy is to document whether an inmate is allowed to have a kufi. It concluded that TDCJ could track which inmates were allowed to have a kufi by issuing property slips that an inmate must carry on his person, as it already does for other personal property such as watches. We hold that the trial court’s conclusions are not erroneous. 16 c. Cost control and prison operations The trial court found that the only kufi-related expense or disruption to operations arise from the additional staff time needed to search kufis. The court reasoned that if 30% of Muslim inmates at the Michael Unit wore kufis, it would take an extra 15 minutes each day to search them, which is spread across 74,160 minutes of correctional officer time each day. 17 It concluded that this additional search time would be absorbed by the existing staff. Even if 15 The only evidence concerning an instance in which a religious item was misused for gang-related purposes occurred when inmates began using colored rosaries to affiliate with different gangs. TDCJ responded by changing its policy to permit only black rosaries. In this case, TDCJ’s argument addresses the opposite concern: it contends that kufis will be used to conceal rather than promote gang affiliation. 16 TDCJ also argues that the trial court erred by relying on evidence concerning female inmates being allowed to wear hijabs. However, because we hold that TDCJ has failed to prove that its ban is the least restrictive means without regard to evidence concerning female inmates, we decline to address the issue. 17 The trial court found, based on an in-court demonstration, that it takes three seconds to search a kufi and that it will be searched on average four times a day, totaling 12 seconds per inmate per day. As of 2014, there were 260 Muslim inmate at the Michael Unit. If 30% of those inmates wore kufis, it would equal 78 inmates. 29  Case: 14-41165 Document: 00513487896 Page: 30 Date Filed: 05/02/2016 No. 14-41165 additional staff had to be hired, it would cost at most $1,533 each year in staff salary. Ali’s expert agreed that any added costs from kufis would be insignificant. TDCJ responds that the trial court erred in limiting its analysis only to Muslims in the Michael Unit. It argues that the time and costs associated with Ali’s request must account for all male inmates statewide, specifically, if 25% of male inmates wore a religious cap at all times, then it would entail 115.53 hours of CO time to search those kufis and other religious garments, which equals $702,526.37 in CO salary annually. TDCJ argues alternatively that every Muslim inmate will wear a kufi if Ali is permitted to wear one. It claims that searching all Muslim inmates who wear kufis would take 21.48 hours each day and cost $130,658.27 annually. The trial court, however, rejected these estimates as “pure conjecture,” and its conclusion is not clearly erroneous. TDCJ’s claim that all Muslim inmates will want to wear a kufi was not based on any study or survey. See Garner, 713 F.3d at 246. Further, Ali’s expert, George Sullivan, who had spent much of his career in prison systems that allow kufis, testified that around 20 to 30% of Muslim inmates chose to wear a kufi. The court noted that, in contrast to Ali’s witness, none of TDCJ’s witnesses “had experience in correctional systems that allow [k]ufis to be worn throughout the prison.” Thus, while TDCJ may have presented testimony that was inconsistent with Sullivan’s testimony regarding the number of Muslim inmates that would wear a kufi, we will not second-guess the trial court’s resolution of competing evidence. See Anderson, 517 F.3d at 296. We also cannot accept TDCJ’s cost estimates based on its assertion that 25% of all male inmates would choose to wear some kind of religious headwear should Ali be granted the requested accommodation. Under RLUIPA, we have found it appropriate to “tak[e] an object-specific approach to requests for 30  Case: 14-41165 Document: 00513487896 Page: 31 Date Filed: 05/02/2016 No. 14-41165 religious items.” Chance, 730 F.3d at 418. TDCJ, however, fails to specify what other religious headwear inmates would request or point to any evidence regarding the search procedure required for such headwear. Without any concrete evidence regarding which items will be requested, the risk these items would pose, and the methods required to search them, we cannot conclude TDCJ has met its statutory burden on this point. See, e.g., id.; Schlemm, 784 F.3d at 366 (“On this record the cost of accommodating Navajo inmates [by providing special religious meals] appears to be slight, and the costs of accommodating other inmates’ requests (should any be made) can be left to future litigation.”). Finally, TDCJ has not shown it has a compelling interest in the costs associated with allowing Muslim inmates statewide to wear kufis. As of 2014, there were 6,446 male TDCJ inmates that identified as Muslim. Given the record, we find no clear error in the trial court’s finding that the cost of searching 30% of Muslim inmates would be absorbed by existing staff. However, even if none of the search time was absorbed by existing staff, then under TDCJ’s methodology, it would cost $39,221 per year to search all the kufis. 18 The record below indicates that TDCJ’s budget for staff salary and wages was $1.045 billion in 2014, which is roughly one-third of its total operating budget of $3.1 billion. TDCJ has not shown it has a compelling interest in saving less than .004% of its budget that is dedicated to CO compensation. See Moussazadeh, 703 F.3d at 795 (expressing doubt that TDCJ had a compelling interest in saving $88,000 in food-related expenses where that cost amounted to “less than .05% of the food budget”). 18Thirty percent of all male Muslim inmates equals 1,934 inmates. If, as the district court found, it takes 12 seconds to search a kufi per day, then it would take approximately 6.45 hours per day statewide. 31  Case: 14-41165 Document: 00513487896 Page: 32 Date Filed: 05/02/2016 No. 14-41165 Therefore, we conclude that, based on the record, TDCJ has not carried its burden under RLUIPA with respect to its denial of Ali’s request to wear his kufi throughout TDCJ facilities. IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s judgment and permanent injunction. 32 

37 F.3d 1508NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Oscar WILLIAMS, Plaintiff-Appellant,v.P. LOPEZ, Defendant-Appellee. No. 94-15150. United States Court of Appeals, Ninth Circuit. Submitted Sept. 20, 1994.*Decided Sept. 27, 1994. Before: SNEED, WIGGINS, and FERNANDEZ, Circuit Judges. 1 MEMORANDUM** 2 Oscar Williams, a California state prisoner, appeals pro se the district court's summary judgment in favor of correctional officer P. Lopez in Williams' 42 U.S.C. Sec. 1983 action. Williams contends that Lopez violated his Eighth Amendment rights during a random search of his locker by confiscating prescribed medication and making remarks which placed his life in danger. Williams also contends that Lopez violated his First Amendment rights during the search by confiscating certificates of completion for a Bible study course and related material. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We review the district court's summary judgment de novo, McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), and affirm. 3 A grant of summary judgment should be affirmed only if the evidence, read in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); McGuckin, 974 F.2d at 1059. The party opposing summary judgment cannot rest on conclusory allegations, but must set forth specific facts showing that there is a genuine issue for trial. Leer v. Murphy, 844 F.2d 628, 631 (9th Cir.1988). Moreover, to defeat a summary judgment motion, the nonmoving party must come forward with evidence sufficient to establish the existence of any elements that are essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A. Confiscation of Prescribed Medicine 4 To establish a violation of the Eighth Amendment, a prisoner must show that defendant was deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin, 974 F.2d at 1059. A prison official's intentional interference with the prescribed medical treatment of a prisoner may constitute such deliberate indifference. Estelle, 429 U.S. at 104-05. 5 Due to security concerns at Williams' prison, regulations require prisoners to maintain prescribed medication in plastic bags issued to prisoners along with the medication. Inmates are not permitted to keep medicine beyond the expiration date of the prescription, and medicine kept beyond the expiration date is considered contraband. Williams had been prescribed medicine for treatment of minor hypertension. He alleged that Lopez placed his life in danger by confiscating his medication and causing him stress. 6 In an affidavit supporting her motion for summary judgment, Lopez stated that she confiscated only expired medicine from Williams locker and left current medication. In his objection to the summary judgment motion, Williams conceeded that the seized medication was contained in a bag with an expired prescription date. Therefore, under prison regulations, which are not challenged by Williams, the seized medicine was contraband and properly subject to seizure. We note that any unexpired medicine contained in the seized bag also was contraband because its presence in the bag with the expired date would mean that it had been improperly transferred to that bag from the one initially issued to Williams as the proper container for it. 7 In short, Williams failed to substantiate that any current medication was improperly confiscated. Moreover, he did not present any evidence showing that his health was jeopardized by the confiscation of expired medication. His medical records show no reports of resulting illness, and no request for new medication for more than a month after the date on which the expired medication had been confiscated. Because Williams failed to present any evidence showing that Lopez acted with deliberate indifference when she confiscated the expired medication, the district court properly granted summary judgment for Lopez on this issue. See Celotex, 477 U.S. at 322. B. Remark About Williams 8 A prisoner may establish a 42 U.S.C. Sec. 1983 claim under the Eighth and Fourteenth Amendments against prison officials who acted with deliberate indifference to the threat of serious harm or injury by another prisoner. Leer, 844 F.2d at 633.; Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir.1986). "A mere threat" of future bodily harm to a prisoner, however, may not provide a basis for a cognizable 42 U.S.C. Sec. 1983 claim. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.1987). Nor does verbal abuse by a prison official amount to a constitutional violation. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir.1987). 9 Williams alleged that Lopez remarked "Oh! You like children do you?", when Lopez saw a picture of Williams' family in his locker. Williams, who is serving a sentence for committing lewd and lascivious acts with a child, further alleged that the remark "would have had the effect of placing [him] in extreme danger" if those present when the remark was made had known of his crime. Assuming, for the sake of argument, that Lopez made the remark, Williams failed to allege that it subjected him to the threat of serious harm. See Gaut, 810 F.2d at 925. In addition, in response to the motion for summary judgment, Williams failed to present evidence that the remark was heard by other prisoners or that they would seek to injure him. At most, the remark can only be regarded as verbal abuse and, as such, is not actionable. See Oltarzewski, 830 F.2d at 139. 10 C. Confiscation of Certificates and Other Material 11 Prisoners retain protections afforded by the First Amendment including its directive that no law shall prohibit the free exercise of religion. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). Prison officials violate the First Amendment when they deny prisoners reasonable opportunities to exercise their religious freedom. See Cruz v. Beto, 405 U.S. 319, 322 (1972). 12 Williams alleged that Lopez confiscated certificates of completion for a Bible study course and unspecified "related material" and that his religious practices were affected as a result. In her affidavit supporting her motion for summary judgment, Lopez stated that she confiscated excessive papers which had been copied on prison copy machines, and magazine pictures that could be used as tattoo patterns and were considered contraband. The papers and pictures were seized pursuant to a prison policy directed at both reducing fire hazards and facilitating cell searches for contraband. 13 Williams admitted that the prison chaplain replaced the certificates. He did not state how their temporary absence affected his religious practices and failed to present any evidence to substantiate his claim. Accordingly, the district court properly granted summary judgment for Lopez on this issue. See Leer, 844 F.2d at 633-34. 14 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

272 F.2d 741 GREAT NORTHERN RAILWAY COMPANY, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent. No. 16443. United States Court of Appeals Ninth Circuit. Nov. 23, 1959. Woodrow L. Taylor, Clark A. Eckart, Seattle, Wash., for petitioner. Stuart Rothman, General Counsel, Thomas J. McDermott, Associate General Counsel, Marcel Mallet-Prevost, Assistant General Counsel, Norton J. Come, Herman M. Levy, Attorneys, N.L.R.B., Washington, D.C., for respondent. Before HAMLEY, HAMLIN, and KOELSCH, Circuit Judges. HAMLEY, Circuit Judge. 1 This matter is before us on the petition of Great Northern Railway Company to review and set aside an order of the National Labor Relations Board. In the questioned order the Board dismissed a complaint charging that two unions were engaging in an unfair labor practice proscribed by section 8(b)(4))A) of the National Labor Relations Act, 29 U.S.C.A. 158(b)(4)(A). 2 The precise question presented for our consideration is whether in view of the restrictions placed on the terms 'employer' and 'employee' in section 2(2) and (3) of the act, 29 U.S.C.A. 152(2) and (3), a railroad must be denied Board protection from conduct which would otherwise constitute a secondary boycott proscribed by section 8(b)(4)(A) of the act.1 3 The complaint in question, based on charges filed by the railroad, was issued against Lumber & Sawmill Workers Local 2409 and Montana District Council, Lumber & Sawmill Workers Unions. The principal allegations of the complaint are summarized in the following two paragraphs. 4 On or about January 30, 1953, the named unions became engaged in a primary labor dispute with Foley's Mill and Cabinet Works of Helena, Montana. On that date, acting in concert and pursuant to a common plan, the unions caused pickets to patrol at a point where a spur track of the railroad serves Foley. Such picketing took place at such times as the railroad sought to move freight cars over the spur track with freight destined to Foley. 5 The described union action, it is alleged, induced employees of the railroad to engage in a strike, or a concerted refusal to transport freight or to operate trains to or from Foley over the spur track. The object of such union activity was to force or require the railroad and other employers or persons to cease transportation, handling, or otherwise dealing in the products of Foley, or to cease doing business with Foley. 6 After proceedings which consumed five and a half years, a trial examiner for the Board rendered an intermediate report and order on November 18, 1958. It was found that the named unions were labor organizations within the meaning of section 2(5) of the act, 29 U.S.C.A. 152(5). It was also found that Foley's Mill & Cabinet Works was an employer within the meaning of section 2(2) of the act, 29 U.S.C.A. 152(2), and engaged in commerce within the meaning of section 2(6) and (7) of the act, 29 U.S.C.A. 152(6) and (7). 7 Concerning the strike activity referred to in the complaint, the trial examiner found as follows: On January 30, 1953, the employees of Foley became engaged in a primary labor dispute with Foley and began a strike against Foley, which still continues. The strike was accompanied by picketing which at first did not involve the railroad. Picketing involving the railroad, of the kind and with the object described in the complaint, began on February 8, 1953, and still continues.2 The only purpose of the picketing on the spur track of the railroad was to involve the railroad in the unions' dispute with Foley. Such picketing was therefore not primary in nature, but, except for the question of the railroad's status as discussed below, amounted to a secondary boycott, proscribed by section 8(b)(4)(A) of the act. 8 All of these findings by the examiner were favorable to the railroad. The unions, however, argued before the examiner that the complaint must nevertheless be dismissed. It was their contention that Great Northern Railway Company, being a railroad company, is not 'an employer' as defined in the act and that therefore inducement of its train crews was not inducement or encouragement of 'employees' of an 'employer' within the meaning of section 8(b)(4)(A). 9 The examiner reviewed this contention at great length in his intermediate report and recommended order, citing and discussing the pertinent court and Board decisions. He expressed the personal view that under the applicable court decisions a railroad is entitled to the protection of section 8(b)(4)(A) under circumstances such as were found to exist here. The examiner, however, pointed out that a majority of the Board had in previous cases adopted the opposite view. The examiner stated that he therefore felt obliged to recommend dismissal of the complaint on the ground that Great Northern Railway Company is not an 'employer' and its employees are not 'employees' within the meaning of section 8(b)(4)(A). 10 The Board, on February 13, 1959, adopted the findings, conclusions, and recommendations of the trial examiner and dismissed the complaint.3 It is this Board order which is here under review. 11 Under section 8(b)(4)(A) indicated activity is proscribed as a secondary boycott if it utilizes certain described means of accomplishing specified objects. The described means are set out in division (4) of section 8(b) immediately preceding clause (A).4 The specified objects are set out in clause (A). 12 The specified objects as set out in clause (A) include the forcing or requiring of 'any employer or other person' to cease handling or transporting the products of any other manufacturer. Thus, for the purpose of determining whether the unions here had an objective condemned by section 8(b)(4)(A), it is immaterial whether the railroad is an 'employer' or its workmen are 'employees' within the meaning of the act. They are in any event 'persons' as defined in section 2(1), 29 U.S.C.A. 152(1), which term is referred to in clause (A).5 13 But, in so far as the means of accomplishing a specified object are concerned, subdivision (4) of section 8(b), immediately preceding clause (A), does not expressly refer to the inducing or encouraging of action by 'any person.' It speaks only of the inducing or encouraging of 'the employees of any employer' to engage in forbidden action. 14 The Board therefore held that since the railroad is subject to the Railway Labor Act, it is not an 'employer' and its workmen are not 'employees' as those terms are used in section 8(b)(4)(A). In reaching this conclusion the Board relied upon the statutory definition of those terms set out in section 2(2) and (3) of the act.6 The Board accordingly ruled that the means utilized by the unions to attain their objective of forcing or requiring the railroad to cease handling or transporting Foley products was not forbidden by section 8(b) (4), and that hence no statutorily forbidden secondary boycott occurred. 15 The Board thus conformed to the view which a majority of that agency has consistently maintained through the years. It is, however, a view which has been rejected by the courts every time the matter has come before them. In two of these court cases the decision was by a court of appeals-- in both instances the Court of Appeals for the Fifth Circuit. 16 The first of these court of appeals cases is International Rice Milling Co., Inc. v. N.L.R.B., 5 Cir., 183 F.2d 21, decided on June 21, 1950. The Board petitioned for a writ of certiorari but in doing so sought no review of the particular ruling here in question.7 Hence, although the court of appeals decision was reversed on other grounds (341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1277), its decision concerning the point here in issue remained undisturbed. 17 The second court of appeals case was W. T. Smith Lumber Co. v. N.L.R.B., 5 Cir., 246 F.2d 129, decided June 21, 1957. The Board did not petition for certiorari and, accepting the court's adverse decision, remanded the proceeding to the regional director for a hearing on the merits. Thereafter all parties entered into a stipulation consistent with the decision of the court of appeals. 18 In both of these Fifth Circuit cases it was held that the words 'any employer,' as used in section 8(b)(4), are broad enough to include railroads despite section 2(2) and (3). In reaching this conclusion attention was called to the use of the word 'any' in the particular context of section 8(b)(4). It was also pointed out that to exclude railroads from the protection afforded by section 8(b)(4) would to a large extent render meaningless and ineffective the words 'transport' and 'transporting,' as they appear in that section. On the other hand, inclusion of railroads within the protection afforded by this section against the damage caused by secondary boycotts was held in these decisions to be consonant with the general objectives Congress sought to attain. 19 In the first of these decisions the court carefully delineated the line of demarcation Congress intended to draw between matters affecting railroads which were withheld from Board jurisdiction and matters affecting railroads which were not so withheld. The purpose of section 2(2) and (3) in defining 'employers' to exclude persons subject to the Railway Labor Act was to leave railroad employer-employee matters exclusively to the administration of the latter act. It was not intended thereby to deny Board relief under section 8(b)(4)(A) when railroads occupying the position of neutral third parties are adversely affected by activities designed to aid a nonrailroad union in a primary labor dispute with an independent employer. 20 In two federal district court decisions and in one state court case the same result has been reached on generally parallel reasoning.8 Two decisions of the Supreme Court of the United States, while dealing with different factual patterns, contain statements which appear to support the view that Congress did not intend to deny railroads protection against what for any other industry would be secondary boycotts.9 21 There has not been presented in the instant case any argument of substance in favor of the Board's position which has not already been discussed at length in one or more of the court decisions referred to above.10 It will accordingly serve no useful purpose to here restate these same reasons why the Board's petition must be rejected. It is sufficient to state that we concur in the views expressed in the cited judicial decisions.11 22 The order of the Board dismissing the complaint is set aside and the case is remanded to the Board for further proceedings consistent with this opinion. In view of the lapse of time since these proceedings were instituted, it is ordered that the mandate issue forthwith. 1 The reference here and throughout this opinion unless otherwise indicated is to section 8(b)(4)(A) prior to its amendment by section 704(a) of the Labor-Management Reporting and Disclosure Act of 1959; Public Law 86-257; 73 Stat. 519; 1959 U.S.Code Cong. and Admin.News, No. 14, Sept. 16, 1959, page 2984. Prior to the 1959 amendment, and as applicable in this case, section 8(b)(4)(A) read as follows: '(b) It shall be an unfair labor practice for a labor organization or its agents-- '(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person.' In section 2(2) it is provided that 'the term 'employer' * * * shall not include * * * any person subject to the Railway Labor Act. * * *' In section 2(3) it is provided that 'the term 'employee' * * * shall not include * * * any individual employed by an employer subject to the Railway Labor Act. * * *' 2 The examiner's findings speak as of November 18, 1958. At the oral argument before this court, however, we were advised that the strike and picketing in question still continue 3 Expressing its dissatisfaction with some of the trial examiner's discussion and conclusions, the Board stated in its decision and order: 'We find, in agreement with the Trial Examiner, that railroad employees are not employees in the meaning of Section 8(b)(4)(A) of the Act. See Superior Derrick Corporation, 122 NLRB No. 6. However, we do not adopt the Trial Examiner's discussion, and conclusions as to the import, of various Board and Court decisions regarding the instant issue, nor do we adopt his statement of his personal views as to the proper rule to be derived from these decisions.' 4 See footnote 1 5 Section 2(1) reads as follows: '(1) The term 'person' includes one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.' 6 See footnote 1 7 See footnote 2 in N.L.R.B. v. International Rice Milling Co., Inc., 341 U.S. 665, at pages 668-669, 71 S.Ct. 961 at pages 962-963, 95 L.Ed. 1277 8 Knapp v. United Steelworkers of America, D.C.Minn.1959, 179 F.Supp. 90; Penello v. Seafarers' Intern. Union, D.C.E.D.Va.1957, 164 F.Supp. 635; Swift & Company v. Doe, St. Louis, Ct.App., Mo.App.1958, 315 S.W.2d 465. See, also, Wichita Falls & Southern R. Co. v. Lodge No. 1476, International Ass'n of Machinists, Tex.Civ.App.1954, 266 S.W.2d 265 9 Local Union No. 25 of Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. New York, N.H. & H.R. Co., 350 U.S. 155, 76 S.Ct. 227, 100 L.Ed. 166; Plumbers, Steamfitters, Refrigeration Petroleum Fitters, and Apprentices of Local 298, A.F. of L. Union v. County of Door, 359 U.S. 354, 79 S.Ct. 844, 3 L.Ed.2d 872. See, also, Douds v. Seafarers' International Union, D.C.E.D.N.Y., 148 F.Supp. 953 10 Most of these arguments have also been dealt with extensively in minority opinions filed in proceedings before the Board. See the dissent of Member Rogers in the Paper Makers Case, 116 N.L.R.B. 267, 280 (1956), and the dissent of Member Jenkins in U and Me Transfer, 119 N.L.R.B. 852, 863 11 By its 1959 amendment of section 8(b)(4)(A) (see footnote 1), Congress has removed any possible doubt for the future. It has done so by making (4) applicable with respect to 'any individual employed by any person engaged in commerce or in any industry affecting commerce,' and by making the object (now (4)(ii)(B)) applicable with regard to 'any person.' As above indicated, even under the section prior to its 1959 amendment, the Board recognizes that in the Fifth Circuit Railroads have this protection

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-7683 EDWARD JOSEPH LUCAS, JR., Petitioner - Appellant, versus PATRICK CONROY; ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (CA-02- 388-AMD) Submitted: January 16, 2003 Decided: January 27, 2003 Before WILLIAMS, KING, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Edward Joseph Lucas, Jr., Appellant Pro Se. John Joseph Curran, Jr., Attorney General, Mary Ann Rapp Ince, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Edward Joseph Lucas, Jr., seeks to appeal the district court’s order denying relief on his petition filed under 28 U.S.C. § 2254 (2000). An appeal may not be taken from the final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue for claims addressed by a district court on the merits absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). We have reviewed the record and conclude for the reasons stated by the district court that Lucas has not met this standard. See Lucas v. Conroy, No. CA-02-388-AMD (D. Md. Oct. 22, 2002). Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2 

77 Wn. App. 943 (1995) 895 P.2d 848 THE STATE OF WASHINGTON, Respondent, v. ROGER HEISKELL, Appellant. No. 17046-9-II. The Court of Appeals of Washington, Division Two. May 23, 1995. Pattie Mhoon, for appellant (appointed counsel for appeal). John W. Ladenburg, Prosecuting Attorney, Barbara Corey-Boulet, Deputy, and A. Annette Long, Legal Intern, for respondent. BRIDGEWATER, J. Roger Heiskell appeals a juvenile court order requiring him to register as a sex offender under RCW 9A.44.130. He contends that (1) registration is punitive and inconsistent with the intent of the sex offender statutes; (2) *945 the juvenile court had discretion to waive registration; (3) the State failed to comply with the notice requirements of RCW 10.01.200; (4) the registration statute is unconstitutionally vague and violates the equal protection clause; and (5) as applied to him, registration violates his constitutional right to liberty, travel and privacy, and inflicts punishment greatly disproportionate to the offense committed. We reverse. Heiskell, who was under 15 years of age when he committed the offense, was charged by information with three counts of first degree child molestation. The prosecutor later filed an amended information charging Heiskell with one count of first degree child molestation, to which he pleaded guilty. Defense counsel moved to waive sex offender registration on the basis of RCW 9A.44.140(2). The trial judge denied Heiskell's motion, stating: The only other thing that needs to be dealt with is the issue of registration, and counsel has noted my position on that. I don't believe, regardless of the fact that this may be the perfect case for not requiring it, that I am allowed to make that decision under the law. I think under the law it is a mandatory requirement and I cannot waive it. Accordingly, I am ordering the registration as directed by the statute. The trial court entered a sexual offender disposition order, placing Heiskell under community supervision pursuant to the special sex offender disposition alternative (SSODA), RCW 13.40.160(5). The disposition order contained notice of the registration requirement, and Heiskell was given separate written notice of the registration requirement at the time the disposition order was entered. Nevertheless, he refused to register, and he now appeals the juvenile court's order requiring him to do so. I We have carefully considered Heiskell's contentions that (1) registration is punitive and inconsistent with the intent of the sex offender statutes; (2) the State failed to comply with the notice requirements of RCW 10.01.200; and (3) registration violates his constitutional right to liberty, travel and privacy, and inflicts punishment greatly disproportionate *946 to the offense. In light of State v. Ward, 123 Wn.2d 488, 869 P.2d 1062 (1994), these issues are without merit and warrant no further discussion. Further, in light of our holding herein concerning the construction of the relevant statutes, an equal protection analysis is unnecessary. II Juveniles that commit sex offenses have a duty to register as sex offenders pursuant to RCW 9A.44.130. State v. Acheson, 75 Wn. App. 151, 877 P.2d 217 (1994). Heiskell argues, however, that the trial court had discretion to relieve him of his duty, pursuant to RCW 9A.44.140. We agree. Pertinent sections of RCW 9A.44.140 provide: (2) Any person having a duty to register under RCW 9A.44.130 may petition the superior court to be relieved of that duty.... Except as provided in subsection (3) of this section, the court may relieve the petitioner of the duty to register only if the petitioner shows, with clear and convincing evidence, that future registration of the petitioner will not serve the purposes of RCW 9A.44.130, 10.01.200, 43.43.540, 46.20.187, 70.48.470, and 72.09.330. (3) An offender having a duty to register under RCW 9A.44.130 for a sex offense committed when the offender was a juvenile may petition the superior court to be relieved of that duty. The court shall consider the nature of the registrable offense committed, and the criminal and relevant noncriminal behavior of the petitioner both before and after adjudication, and may consider other factors. The court may relieve the petitioner of the duty to register for a sex offense that was committed while the petitioner was fifteen years of age or older only if the petitioner shows, with clear and convincing evidence, that future registration of the petitioner will not serve the purposes of RCW 9A.44.130.... The court may relieve the petitioner of the duty to register for a sex offense that was committed while the petitioner was under the age of fifteen if the petitioner (a) has not been adjudicated of any additional sex offenses during the twenty-four months following the adjudication for the sex offense giving rise to the duty to register, and (b) the petitioner proves by a preponderance of the evidence that future registration of the petitioner will not serve the purposes of RCW 9A.44.130.... [1] This statute is ambiguous. Kadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 185, 829 P.2d 1061 (1992) (statute ambiguous if subject to more than one reasonable interpretation). *947 On the one hand, it might mean that a juvenile can be relieved of his duty to register either (a) within 2 years, using a clear and convincing standard, or (b) after 2 years, using a preponderance standard. On the other hand, it might mean that a juvenile cannot be relieved of his duty to register before 2 years have expired, although he can be relieved after 2 years, using a preponderance standard. [2-4] Ambiguous statutes should be interpreted in a reasonable manner, and courts should strive to seek out the intent of the legislative body. State Human Rights Comm'n ex rel. Spangenberg v. Cheney Sch. Dist. 30, 97 Wn.2d 118, 121, 641 P.2d 163 (1982). When a statute is susceptible to differing interpretations, the construction that best advances the overall intent of the legislature will be adopted. Hart v. Peoples Nat'l Bank, 91 Wn.2d 197, 203, 588 P.2d 204 (1978). Other familiar rules of statutory construction indicate that unlikely, absurd or strained results are to be avoided, and that where a statute is susceptible of more than one interpretation, one of which may render it unconstitutional, the court will adopt a construction which sustains the statute's constitutionality. State ex rel. Faulk v. CSG Job Ctr., 117 Wn.2d 493, 500, 816 P.2d 725 (1991). [5, 6] In this case, it appears that the Legislature enacted subsection (3) to make it easier for young offenders to be relieved of the duty to register. Originally, RCW 9A.44.140 treated juveniles and adults alike. Laws of 1990, ch. 3, § 408. Subsection (3) was added as an amendment in 1991. Laws of 1991, ch. 274, § 3. The only legislative history concerning this section consists of comments by members of the House Judiciary Committee. H.R. Judiciary Comm., Tape H-52-JUD-20b (Feb. 27, 1991). Representative James Hargrove, who drafted subsection (3), explained that its purpose was to make it easier for juveniles to prove that registration is no longer required. Construing RCW 9A.44.140(3) to prohibit juveniles who commit sex offenses when under age 15 from petitioning for discharge for 2 years, while permitting all other juveniles and adults to petition for discharge immediately is inconsistent with the Legislature's intent of making *948 it easier for young offenders to be relieved of the duty to register.[1] An absurd, unlikely result would obtain in that it would be more difficult under the State's interpretation for young offenders to be relieved from the duty to register. Additionally, treating juveniles under age 15 differently from other juveniles and adults may raise equal protection concerns; our construction plainly sustains the constitutionality of the statute. Consequently, we hold that a juvenile who commits a sex offense while under age 15 has two remedies. The juvenile may petition for discharge from the registration requirement in the same manner and subject to the same burden of proof as a juvenile who commits a sex offense while age 15 or over, or the juvenile may utilize the less strict burden of proof after waiting 2 years. The juvenile court erred when it determined that it did not have discretion to relieve Heiskell of the duty to register. We reverse and remand for the juvenile court to exercise its discretion in determining whether Heiskell is required to register as a sex offender. MORGAN, J., and UTTER, J. Pro Tem., concur. Review granted at 128 Wn.2d 1001 (1995). NOTES [1] Additionally we note that imposing a mandatory 2-year registration requirement on juveniles who commit sex offenses while under age 15 is not related to SSODA, since age is not a criterion for granting a SSODA disposition order. RCW 13.40.160(5).

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 35,682 5 CINDY OTERO-GALLEGOS, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Charles W. Brown, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Santa Fe, NM 14 Steven J. Forsberg, Assistant Public Defender 15 Albuquerque, NM 16 for Appellant 17 MEMORANDUM OPINION 18 ZAMORA, Judge.  1 {1} Defendant appeals from an on-the-record district court judgment affirming her 2 metro court conviction for driving while intoxicated (DWI) (slightest degree). We 3 issued a calendar notice proposing to affirm. Defendant has responded with a 4 memorandum in opposition. We affirm. 5 {2} Issue 1: Defendant has abandoned this issue. See State v. Salenas, 1991- 6 NMCA-056, ¶ 2, 112 N.M. 268, 814 P.2d 136 (observing that where a party has not 7 responded to the Court’s proposed disposition of an issue, that issue is deemed 8 abandoned). 9 {3} Issue 2: Defendant continues to challenge the sufficiency of the evidence to 10 support her conviction for DWI. [MIO 1] A sufficiency of the evidence review 11 involves a two-step process. Initially, the evidence is viewed in the light most 12 favorable to the verdict. Then the appellate court must make a legal determination of 13 “whether the evidence viewed in this manner could justify a finding by any rational 14 trier of fact that each element of the crime charged has been established beyond a 15 reasonable doubt.” State v. Apodaca, 1994-NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 16 756 (internal quotation marks and citation omitted). 17 {4} In order to convict Defendant of DWI, the evidence had to show that Defendant 18 was under the influence of intoxicating liquor while operating a motor vehicle, and 2  1 that this affected her ability to operate the vehicle to at least the slightest degree. 2 NMSA 1978, § 66-8-102(A) (2016); UJI 14-4501 NMRA. 3 {5} Here, at 2:40 a.m. an officer stopped Defendant’s car based on an inoperable 4 headlight. [RP 128] When stopped, Defendant had bloodshot, watery eyes and slurred 5 speech, smelled of alcohol, and admitted to drinking. [RP 128] Defendant then 6 proceeded to perform poorly on the field sobriety tests (FSTs). [RP 129] Defendant 7 then refused to submit to chemical testing. [RP 132] To the extent that Defendant is 8 claiming that her injured ankle could explain the poor performance on the field 9 sobriety tests, the metropolitan court, sitting as fact-finder, specifically noted that 10 many indications of impairment during the FSTs could not be attributed to the ankle. 11 [RP 132] We therefore conclude that there was sufficient evidence presented to 12 support Defendant’s DWI conviction. See, e.g., State v. Soto, 2007-NMCA-077, ¶ 34, 13 142 N.M. 32, 162 P.3d 187 (holding that there was sufficient evidence to support a 14 conviction where officers observed the defendant driving, where the defendant 15 admitted to drinking, and where the defendant had bloodshot watery eyes, smelled of 16 alcohol, and slurred speech), abrogated on other grounds by State v. Tollardo, 2012- 17 NMSC-008, 275 P.3d 110; State v. Notah-Hunter, 2005-NMCA-074, ¶ 24, 137 N.M. 18 597, 113 P.3d 867 (holding that evidence that a defendant smelled of alcohol, had 3 1 slurred speech, admitted to drinking alcohol, failed field sobriety tests, and was 2 driving erratically was sufficient to uphold a conviction for driving while intoxicated). 3 {6} For the reasons set forth above, we affirm. 4 {7} IT IS SO ORDERED. 5 6 M. MONICA ZAMORA, Judge 7 WE CONCUR: 8 9 JAMES J. WECHSLER, Judge 10 11 J. MILES HANISEE, Judge 4 

658 F.3d 867 (2011) Gladys MENSING, Appellant v. WYETH, INC., et al., Appellees. No. 08-3850. United States Court of Appeals, Eighth Circuit. September 29, 2011. ORDER The Supreme Court having reversed the judgment of this court and remanded this action for further proceedings in light of its opinion in PLIVA, Inc. v. Mensing, ___ U.S. ___, 131 S.Ct. 2567, 180 L.Ed.2d 580 (2011), we now vacate Sections I, II, and IV of our opinion in Mensing v. Wyeth, Inc., 588 F.3d 603 (8th Cir.2009), reinstate Section III of that opinion, and deny Mensing's motion for leave to file a supplemental brief.

541 U.S. 987 CARMICHAEL ET UX.v.PAYMENT CENTER, INC. No. 03-955. Supreme Court of United States. April 19, 2004. 1 C. A. 7th Cir. Certiorari denied. Reported below: 336 F. 3d 636.

957 F.Supp. 762 (1996) Buford T. MYERS, Plaintiff, v. TOWN OF LANDIS; and Gene R. Beaver in his official capacity as Mayor of the Town of Landis, and in his individual capacity, Defendants. Civil No. 4:94CV700. United States District Court, M.D. North Carolina, Salisbury Division. March 22, 1996. *763 *764 *765 Robert M. Elliot, Elliot, Pishko, Gelbin & Morgan, P.A., Winston-Salem, NC, for Plaintiff. Allan R. Gitter, James Redfern Morgan, Jr., Womble Carlyle Sandridge & Rice, Winston-Salem, NC, for Defendants. MEMORANDUM OPINION BULLOCK, Chief Judge. This is a suit by Buford T. Myers against the Town of Landis, North Carolina and its Mayor, Gene Beaver. Myers used to work for the town, and he alleges that he was fired in retaliation for exercise of his right to free speech. He asserts several claims under federal and state law. Now before the court are Myers's motion for leave to amend his complaint and the motion of all defendants for summary judgment. For the reasons discussed in this memorandum opinion, Myers's motion for leave to amend will be granted, and the defendants' motion for summary judgment will be granted in part and denied in part. BACKGROUND The following facts are undisputed. Until April 1994, Buford T. Myers, the plaintiff, worked for the town of Landis, North Carolina. Myers held several positions at different times, including laborer and mechanic. On August 3, 1989, while Myers was the town's mechanic, he spoke to an agent of the North Carolina State Bureau of Investigation ("SBI") regarding allegations that the Mayor of Landis, Gene R. Beaver, had illegally taken town property for his own use and had improperly directed town workers to do projects for the benefit of private persons (including Mayor Beaver) on town time. The investigation closed without any charges being brought against Mayor Beaver. Another town employee who spoke to the SBI agent regarding the allegations against Mayor Beaver was Willie Deadmon, Director of Public Works for the Town of Landis. About a month after Deadmon spoke with the SBI agent, the town board voted to fire Deadmon, purportedly for having been rude to citizens of Landis while performing his duties. Myers believed that the real reason for Deadmon's termination was Deadmon's cooperation with the SBI's investigation of the Mayor. Myers wrote a statement attacking what he saw as the "railroading" of Deadmon and complaining about the town's treatment of its employees and cuts in their benefits. Besides Myers, eleven other employees of Landis signed the statement and Myers read the statement aloud at a meeting of the town board on September 5, 1989. In the years that followed these incidents, Myers suffered a series of reverses related to his employment. In the fall of 1990, Myers was transferred from his job as a mechanic to a laborer's duties. The transfer did not then mean a cut in pay. Roughly a year later, however, Myers suffered a pay cut from $12.68 per hour to $7.03 because of a town-wide reclassification of jobs. Myers had varying duties as a laborer, and by the spring of 1994, Myers had been assigned to the mowing detail. Finally, on March 7, 1994, the town board voted to hire a private company to cut the grass, and Myers consequently lost his job. This suit followed. ANALYSIS Myers alleges violations of his right to free speech under the First and Fourteenth Amendments to the Constitution of the United *766 States and his right to substantive due process under the Fourteenth Amendment. He also alleges violations of his rights to free speech and substantive due process under the Constitution of North Carolina and wrongful discharge under state law. The defendants have moved for summary judgment on all of Myers's claims. A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material if it could affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. 1. Federal Right to Free Speech Myers claims that he suffered a pay cut and lost his job because of his protected speech to the SBI agent and before the town board. He seeks damages from Mayor Beaver in his individual and official capacities and from the Town itself. The defendants say that Myers has failed to establish a genuine issue of material fact such that this claim should go to the jury. Further, Mayor Beaver asserts the defense of qualified immunity from damages in his individual capacity and the Town asserts that it is immune from punitive damages. The court will address these arguments in turn. a. Violation of Substantive Right Because of the First Amendment, which applies to the states through the Fourteenth Amendment, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, ___ n. 1, 115 S.Ct. 1511, 1514 n. 1, 131 L.Ed.2d 426 (1995), a state or local government may not fire or otherwise retaliate against one of its employees for exercise of his right to free speech. Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); DiMeglio v. Haines, 45 F.3d 790, 804 (4th Cir.1995). However, because a state has an interest in ensuring that its employees provide effective services to its citizens, the state may subject its employees to restraints that it could not apply to citizens in general. See Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. Under Pickering and the cases that have followed it, a state employee's speech on a matter of public concern is protected if the employee's interest in speaking outweighs the state's interest as an employer in promoting the efficient delivery of public services. Id. The Fourth Circuit has explained how to do the balancing that Pickering requires. [The court] must first determine whether [the plaintiff's] speech involved an issue of public concern. If the speech regarded an issue of public concern, [the court should] next determine whether [the plaintiff] would have been dismissed "but for" [his] protected speech. Finally, we decide whether [the plaintiff's] exercise of free speech is outweighed by the [state's countervailing interest in providing effective service]. Hall v. Marion Sch. Dist. No. 2, 31 F.3d 183, 192 (4th Cir.1994) (citations omitted). i. Public Concern For speech to be on a matter of public concern, it must relate to a "matter of political, social, or other concern to the community." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). In contrast, an employee's personal grievances about his employment are not matters of public concern. Daniels v. Quinn, 801 F.2d 687, 690 (4th Cir.1986). The proper classification depends on whether the employee was speaking as a citizen or as an employee, DiMeglio, 45 F.3d at 805, and the inquiry is one of law, Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1690 n. 7. Myers claims that his transfer, pay cut, and ultimate discharge were in retaliation for his meeting with an agent of the SBI and for reading his statement to the Town Board. Both events involved speech on matters of public concern. When Myers met the SBI agent, Myers accused Mayor Beaver of taking city property for his own use and of having town employees work for the benefit of individual citizens (including the Mayor *767 himself) on town time. (SBI Report.) Accusing the highest elected town official of a breach of public trust and criminal wrongdoing is speech on a matter of public concern. See Connick, 461 U.S. at 149, 103 S.Ct. at 1691; Davis v. Ector County, 40 F.3d 777, 782 (5th Cir.1994) ("There is perhaps no subset of `matters of public concern' more important than bringing official misconduct to light."). The speech is of public concern despite being made privately to the SBI agent. Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415-16, 99 S.Ct. 693, 696-97, 58 L.Ed.2d 619 (1979); Maciariello v. Sumner, 973 F.2d 295, 299 (4th Cir.1992), cert. denied, 506 U.S. 1080, 113 S.Ct. 1048, 122 L.Ed.2d 356 (1993). Myers's statement before the Town Board also touched on a matter of public concern, despite the defendants' argument to the contrary. Much of the statement did consist of generalized grievances about benefits and working conditions, and these grievances are not protected. Connick, 461 U.S. at 148, 103 S.Ct. at 1690. However, the statement began with an accusation that Willie Deadmon was "being railroaded on a bunch of dreamed up charges" in retaliation for his participation in the SBI's investigation of Mayor Beaver. (Def.Ex. f at 1.) An allegation that a public official has tried to cover up wrongdoing by retaliating against a whistleblower is itself an accusation of significant wrongdoing and a matter of public concern. ii. Causation The defendants assert that they are entitled to summary judgment because, they say, Myers has failed to adduce evidence that he was fired because of his statements. The structure for this part of the inquiry is controlled by the Supreme Court's decision in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The plaintiff has the initial burden of showing that his protected speech was a "substantial" or "motivating" factor behind his discharge. Id. at 287, 97 S.Ct. at 576. If the plaintiff makes this showing, the defendant can still escape liability by showing that the plaintiff would have been discharged even without the impermissible motive. Id. Myers's evidence creates a triable issue of the cause of his discharge. In the five years following his statements, Myers was first transferred,[1] then given a pay cut, and ultimately discharged. Although the time span seems to rebut any inference that Myers's speech motivated these actions, Myers has produced evidence probative of ongoing animus. Myers offers witnesses to several statements by Mayor Beaver to the effect that Beaver intended to have Myers fired. According to James Upright, a former employee of the Town of Landis, Mayor Beaver repeatedly said that he wanted to "get rid of" Myers. (Upright Aff., Pl.Ex. 3 at ¶ 6.) Another former town employee, Bobby Ray Smith, says that at various times after the town meeting, Mayor Beaver said that he wanted to fire Myers; the Mayor said things like: "I am going to get rid of B.T. Myers the first chance I get. I'm going to make an example of him." (Smith Aff., Pl.Ex. 4 at ¶ 7.) Smith also claims to have heard Mayor Beaver and Bobby Wood, who had then been promoted to Director of Public Works to replace Willie Deadmon, say they wanted to get rid of Myers because he was a "trouble-maker." Id. at ¶ 9. Viewed most favorably toward the plaintiff, this evidence would allow a finding that Mayor Beaver retaliated against Myers. *768 After Myers was transferred from the mechanic's shop, but before the reclassification of jobs resulted in Myers's pay cut, Smith says that Mayor Beaver said, "We have already sent him back to labor. We're going to cut his pay." Id. at ¶ 8. Perhaps the strongest evidence supporting an inference of improper motivation is the deposition testimony of Michael Dennis Brown, who was on the Town Board when it voted to hire a private company to mow grass. According to Brown, the Mayor said in executive session, "Well, we need to do something about the mowing because B.T.'s on the mowing crew and he's a troublemaker." (M.D. Brown Depo., Pl.Ex. 14 at 23.) Mayor Beaver expressed these sentiments repeatedly during the executive session, and, Brown says, was "driven" to contract out the mowing in part by a desire to get rid of B.T. Myers. Id. at 23-24. Although precisely what Beaver meant by "troublemaker" is disputable, such a dispute is to be resolved by the trier of fact, not on a motion for summary judgment. The defendants try to rebut the showing of causation by pointing out that Mayor Beaver, acting alone, did not have authority to reclassify Myers, to approve the mowing contract, or to discharge Myers. The personnel ordinance for the Town of Landis gives the Town Clerk the responsibility to develop a plan for classifying Town employees and to submit that plan to the Town Board for approval. (Def.Ex. d Art. IV.) Further, the Town Board approved the mowing contract and instructed A.B. Patterson, then the Director of Public Works, and Bobby Wood, by then the Town Clerk, to decide who would be laid off. (Bobby Wood Dep. at 134.) However, the record contains testimony that the Mayor had substantial power to get both the Town Board and Bobby Wood to do what the Mayor wanted.[2] (Pl.Ex. 14 at 35-36) (saying Wood usually went along with Beaver because of their close political relationship); Id. at 11 (expressing belief that earlier Boards were heavily influenced by Beaver); (Deadmon Aff., Pl.Ex. 2 at ¶ 12) (saying board usually did what Mayor wanted). Trying to show that Myers would have been discharged anyway, the Town points out that contracting out the mowing saved the Town a lot of money. (Wood Dep. at 31.) However, as already discussed, contracting out the mowing did not necessarily mean that Myers would be fired. The evidence would permit a jury to find that the Board approved the contract knowing that Mayor Beaver would use it as an excuse to have Myers fired and did nothing to prevent the illegal retaliation. Cf. Hall, 31 F.3d at 196 (holding that School Board ratified superintendent's conduct where it knew of improper plan to fire teacher, did nothing to intervene, and approved firing). iii. The State's Interest in Effective Provision of Services Even if a public employee speaks on a matter of public concern, his speech will not be protected if it sufficiently impairs his employer's interest "in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1734; see also Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 2899, 97 L.Ed.2d 315 (1987) ("[T]he state interest element of the test focuses on the effective functioning of the public employer's enterprise."). Speech may impair efficiency by disrupting the office, undermining the authority of supervisors, or destroying close working relationships. See Connick, 461 U.S. at 154, 103 S.Ct. at 1694. Further, the employer does not need to prove that the agency's efficiency or morale has actually been impaired, but only that such damage is reasonably to be apprehended. Jurgensen v. Fairfax County, 745 F.2d 868, 879 (4th Cir.1984). But cf. Rankin, 483 U.S. at 389, 107 S.Ct. at 2899 ("[T]here is no evidence that [plaintiff's speech] interfered with the efficient functioning of the office."). The balancing of the employee's and employer's interests is a question of law for the court. Joyner v. Lancaster, 815 F.2d *769 20, 23 (4th Cir.), cert. denied, 484 U.S. 830, 108 S.Ct. 102, 98 L.Ed.2d 62 (1987). Here, nothing suggests that any impairment of any governmental function was reasonably apprehended. The relationship between the Mayor of a town and one of the town's mechanics or waste collectors is hardly a "close working relationship[ ] ... essential to fulfilling public responsibilities." See Connick, 461 U.S. at 151-52, 103 S.Ct. at 1692. Although Myers's accusations might reasonably be thought to cause disagreements among employees, Myers's speech was protected absent a reason to expect actual disruption of services. Cf. Hall, 31 F.3d at 194 (holding plaintiff teacher's speech protected even though it led twenty out of twenty-five other teachers to petition for plaintiff's transfer). This record suggests no such reason. b. Qualified Immunity Mayor Beaver has asserted qualified immunity as a defense to personal liability. Qualified immunity protects an official from liability in his individual capacity except where a reasonable officer in the defendant's position would know that he was violating the plaintiff's rights. DiMeglio, 45 F.3d at 794-95 n. 1. The test is purely objective: "immunity shields officials `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Id. at 794 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). The right of a public employee to be free from retaliation for protected speech is "clearly established." Hughes v. Bedsole, 48 F.3d 1376, 1385 (4th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 190, 133 L.Ed.2d 126 (1995); Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir.1993). However, the qualified immunity inquiry is not done at the level of abstract rights, but at the level of application to the concrete facts of the case. DiMeglio, 45 F.3d at 803. Accordingly, the inquiry for this court becomes: "In 1991 (when Myers suffered a pay cut) and in 1994 (when Myers was discharged), was it clearly established that Myers could not be subjected to adverse action because of his speech to the SBI agent and at the Town Board meeting?" See id. at 804. Because this court holds that such a right was clearly established at those times and that no reasonable official could have believed that retaliation against Myers for his speech was permissible, Defendant Beaver's motion for summary judgment on the ground of qualified immunity will be denied. This right was clearly established even though it was the result of applying the Pickering balancing test. The Fourth Circuit has said that where the existence of a right depends on a balancing test, as in Pickering, such a right will rarely be "clearly established." DiMeglio, 45 F.3d at 806. However, "rarely" does not mean "never." See, e.g., Reuber v. Food Chem. News, Inc., 899 F.2d 271, 287-88 (4th Cir.) (denying qualified immunity because no reasonable official could have thought speech was not protected), reh'g granted, vacated on other grounds, 922 F.2d 197 (4th Cir.1990). The ultimate issue remains whether "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Here, the public interest in Myers's speech was very strong. Myers told a state law enforcement officer during an official investigation that he believed that Mayor Beaver had engaged in criminal misconduct. Myers further spoke at a Town Board meeting to protest what he believed was an attempt to hinder that investigation by firing the head of the Department of Public Works. Such speech about elected officials implicates core First Amendment values. Moreover, as discussed above, the record is devoid of anything that would suggest that Myers's speech actually hindered any municipal function or had the potential to do so. When the interest in speech is this strong, and there is no evidence of a threat to the government agency's mission, no reasonable official can conclude that the speech is not protected. See Kincade v. City of Blue Springs, 64 F.3d 389, 398-99 (8th Cir.1995). Mayor Beaver thus is not immune from damages in his individual capacity. *770 c. Punitive Damages All defendants have moved for summary judgment as to liability for punitive damages resulting from this claim. Although a municipality can be liable for compensatory damages arising out of a violation of an individual's constitutional rights, municipalities are not subject to punitive damages in actions under § 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981). Thus, summary judgment on punitive damages will be granted for the Town of Landis and for Mayor Beaver in his official capacity. In contrast, the trier of fact can award punitive damages against an official sued in his individual capacity when the illegal action was motivated by an evil motive or intent, or when the violation involves reckless or callous indifference to federal rights. Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983). Here, the evidence creates an issue as to Mayor Beaver's intent, so summary judgment as to this part of Myers's First Amendment claim will be denied. 2. Federal Substantive Due Process Myers claims that his discharge also violated his substantive due process rights under the Fourteenth Amendment to the Constitution. To the extent that this claim is based on an alleged violation of his right to free speech, the claim is identical to, and subsumed under, his claim that his discharge violated his rights under the First Amendment. See Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994) (plurality opinion); Wilkes v. Young, 28 F.3d 1362, 1364 n. 2 (4th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1103, 130 L.Ed.2d 1069 (1995). Other than that, any right that Myers may have had to continued employment with the Town of Landis is not protected by substantive due process. Substantive due process protects fundamental rights created by the Constitution. Huang v. Board of Governors of Univ. of N.C., 902 F.2d 1134, 1142 n. 10 (4th Cir.1990) (citing Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229-30, 106 S.Ct. 507, 515-16, 88 L.Ed.2d 523 (1985) (Powell, J., concurring)). Myers's right to his job, if any, was created by state contract law, and does not implicate substantive due process. McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc), cert. denied, 513 U.S. 1110, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995); see Huang, 902 F.2d at 1142 n. 10. Summary judgment for all defendants on this claim will thus be granted. 3. State Constitutional Claims A public employee who suffers retaliation for his protected speech has a cause of action against his employer directly under Article I, section 14 of the Constitution of North Carolina. Corum v. University of N.C., 330 N.C. 761, 786, 413 S.E.2d 276, 292, cert. denied, 506 U.S. 985, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992). When a plaintiff makes such a claim against a public agency or against a public employee acting in his official capacity, the analysis is the same as that under § 1983. See Lenzer v. Flaherty, 106 N.C.App. 496, 515, 418 S.E.2d 276, 288, disc. rev. denied, 332 N.C. 345, 421 S.E.2d 348 (1992). Sovereign immunity does not bar any such suit. Corum, 330 N.C. at 785-86, 413 S.E.2d at 291-92. However, the state constitution does not create a right to recover against a public employee in his individual capacity. Id. at 788, 413 S.E.2d at 293. Thus, the defendants' motions for summary judgment on Myers's claim under the state constitution's free speech clause will be granted as to Mayor Beaver in his individual capacity and denied as to Mayor Beaver in his official capacity and to the Town of Landis. The defendants have moved for summary judgment on plaintiff's claim that they violated his right to substantive due process under the North Carolina Constitution. The Supreme Court of North Carolina has held that the "law of the land" clause of the state constitution, Art. I, § 19, has the same meaning and effect as the Due Process clause of the Federal Constitution. McNeill v. Harnett County, 327 N.C. 552, 563, 398 S.E.2d 475, 481 (1990). Thus, for the reasons discussed in connection with Myers's federal right to substantive due process, the court *771 will grant summary judgment for all defendants on this claim. 4. Wrongful Discharge in Violation of Public Policy Myers's final claim is that his discharge was illegal as against the public policy of North Carolina. See Amos v. Oakdale Knitting Co., 331 N.C. 348, 355, 416 S.E.2d 166, 170 (1992). In Amos, the Supreme Court of North Carolina said that "at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes." 331 N.C. at 353, 416 S.E.2d at 169. Based on this statement, the North Carolina Court of Appeals has held that discharge in retaliation for speech protected by the North Carolina Constitution violates the public policy of North Carolina. Lenzer, 106 N.C.App. at 514-15, 418 S.E.2d at 287. The Town of Landis has moved for summary judgment on the ground of sovereign immunity. A town is not liable for the torts of its agents or employees except to the extent the town waives immunity by buying insurance. Wiggins v. City of Monroe, 73 N.C.App. 44, 49-50, 326 S.E.2d 39, 43 (1985). This immunity extends to employees of the town sued in their official capacities. Whitaker v. Clark, 109 N.C.App. 379, 381-82, 427 S.E.2d 142, 143-44, disc. rev. denied, 333 N.C. 795, 431 S.E.2d 31 (1993). To state a claim against a town or its employees in their official capacities, the plaintiff must allege that the town has bought insurance and waived its immunity. Whitaker, 109 N.C.App. at 384, 427 S.E.2d at 145. The Town of Landis and Mayor Beaver have moved for summary judgment on the ground that Myers has failed to allege this waiver. Myers has moved to amend his complaint to make this allegation and has produced copies of the Town's insurance policies. Considering the strong favor with which the federal rules regard motions to amend, see, e.g., Medigen of Ky., Inc. v. Public Serv. Comm'n, 985 F.2d 164, 167-68 (4th Cir.1993), and the lack of significant prejudice to the defendants, Myers's motion to amend his complaint will be granted. Because of the amendment and the evidence of waiver, the claim against the Town and Mayor Beaver in his official capacity may proceed.[3] Finally, defendants make two arguments that Mayor Beaver is not liable in his individual capacity. First, citing Sides v. Duke University, 74 N.C.App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985), defendants assert that an action for wrongful discharge will lie against Myers's employer only, and since Myers worked for Landis, not for its Mayor, defendants say that the Mayor is not liable. Second, defendants cite several cases for the proposition that Mayor Beaver is not personally liable for actions related to his official duties. Defendants' first argument is persuasive. The North Carolina Court of Appeals has held that an action for wrongful discharge will lie only against an employer, and not against individual employees. Id. at 343, 328 S.E.2d at 826-27. Although some courts have allowed wrongful discharge claims against officers of the employer to stand, they have done so without explicitly considering this issue. E.g., Amos, 331 N.C. at 354, 416 S.E.2d at 170; Lenzer, 106 N.C.App. at 514, 418 S.E.2d at 287. Moreover, the courts that have considered this issue have followed Sides. Phillips v. J.P. Stevens & Co., 827 F.Supp. 349, 353 (M.D.N.C.1993); Williams v. Vogler, No. 6:91CV00637, 1993 WL 402900, at *2 (M.D.N.C. March 6, 1993). Plaintiff offers no compelling reason to disregard this precedent, and, accordingly, this court holds that Mayor Beaver is not individually liable to Plaintiff on the wrongful discharge claim. An order and judgment in accordance with this memorandum opinion shall be entered contemporaneously herewith. ORDER and JUDGMENT For the reasons set forth in the memorandum opinion filed contemporaneously herewith, *772 IT IS ORDERED that Plaintiff's motion to amend his complaint is GRANTED. IT IS ORDERED AND ADJUDGED that Defendants' motion for summary judgment as to the substantive due process claim under federal law as set forth in the complaint as Plaintiff's Second Claim for Relief is GRANTED, and this claim is DISMISSED; and IT IS FURTHER ORDERED AND ADJUDGED that Defendants' motion for summary judgment as to the claim for violation of Plaintiff's right to free speech under the North Carolina Constitution as set forth in the complaint as Plaintiff's Fourth Claim for Relief is GRANTED as to Gene R. Beaver in his individual capacity, and this claim is DISMISSED as to Gene R. Beaver in his individual capacity; and IT IS FURTHER ORDERED AND ADJUDGED that Defendants' motion for summary judgment as to the substantive due process claim under state law as set forth in the complaint as Plaintiff's Fifth Claim for Relief is GRANTED, and this claim is DISMISSED; and IT IS FURTHER ORDERED AND ADJUDGED that Defendants' motion for summary judgment as to the claim for wrongful discharge in violation of the public policy of North Carolina as set forth in the complaint as Plaintiff's Seventh Claim for Relief is GRANTED as to Gene R. Beaver in his individual capacity, and this claim is DISMISSED as to Gene R. Beaver in his individual capacity; and IT IS FURTHER ORDERED that Defendants' motion for summary judgment as to the claim for violation of Plaintiff's right to free speech under the Constitution of the United States as set forth in the complaint as Plaintiff's First Claim for Relief is DENIED. IT IS FURTHER ORDERED that Defendants' motion for summary judgment as to the claim for violation of Plaintiff's right to free speech under the North Carolina Constitution as set forth in the complaint as Plaintiff's Fourth Claim for Relief is DENIED as to the Town of Landis and as to Gene R. Beaver in his official capacity as Mayor of the Town of Landis; and IT IS FURTHER ORDERED that Defendants' motion for summary judgment as to the claim for wrongful discharge in violation of the public policy of North Carolina as set forth in the complaint as Plaintiff's Seventh Claim for Relief is DENIED as to the Town of Landis and as to Gene R. Beaver in his official capacity as Mayor of the Town of Landis; and IT IS FURTHER ORDERED AND ADJUDGED that, pursuant to Plaintiff's stipulation in his brief, Plaintiff's claim for violation of his right to procedural due process under the Constitution of the United States, Plaintiff's claim for violation of his right to procedural due process under the Constitution of North Carolina, and Plaintiff's claim for conspiracy under 42 U.S.C. § 1985 be, and the same hereby are, DISMISSED with prejudice. NOTES [1] The defendants assert that the transfer cannot give rise to a cause of action because it took place more than three years before Myers filed this action. Under Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), claims under § 1983 must be filed within the time allowed by the state statute of limitations for personal injuries. Id. at 276, 105 S.Ct. at 1947. In North Carolina, such suits must be filed within three years of accrual of the cause of action. N.C.Gen.Stat. § 1-52(16) (1991). Thus, a claim that Myers was transferred from his duties as a mechanic in retaliation for his protected speech would be barred. However, this does not affect the validity of Myers's claims that he suffered a cut in pay and was eventually discharged because of his protected speech. Lendo v. Garrett County Bd. of Educ., 820 F.2d 1365, 1368 (4th Cir.1987). [2] This evidence of bias on the part of the Town Board precludes granting summary judgment as to the liability of the Town or of Mayor Beaver in his official capacity, which amounts to the same thing. See Hall, 31 F.3d at 196. The defendants do not suggest that the Town Board is not the final policymaking authority for the Town of Landis. [3] The parties have not discussed whether the insurance policies cover Myers's claims. For purposes of this motion, the court will assume that they do.

163 Conn. 419 (1972) STATE OF CONNECTICUT v. WILLIAM R. MAYELL Supreme Court of Connecticut. Argued June 6, 1972. Decided July 18, 1972. HOUSE, C. J., RYAN, SHAPIRO, LOISELLE and MacDONALD, JS. *420 Michael C. Hagstrom, for the appellant (defendant). Thomas F. Wall, state's attorney, for the appellee (state). LOISELLE, J. The defendant was charged with (1) robbery with violence and (2) binding with intent to commit crime. A jury found him guilty of robbery with violence, but not guilty of binding with intent to commit crime. The court subsequently found him to be a second offender under the second part of the information, pursuant to § 54-418 of the General *421 Statutes. The defendant has appealed, assigning error in certain rulings on evidence and the court's denial of his motions to dismiss and set aside the verdict. The defendant's attack on the court's denial of his motion to set aside the verdict is dispositive of this appeal. The attack is considered by examining the evidence printed in the appendices to the briefs in order to determine whether the jury acted fairly, intelligently and reasonably in rendering their verdict. State v. Shelton, 160 Conn. 360, 361, 278 A.2d 782; State v. Miller, 154 Conn. 622, 624, 228 A.2d 136. From the evidence offered, the jury could reasonably have found the following facts: On the night of August 21, 1968, Peter Plungis of Watertown, while in his farmhouse, saw a vehicle stop in a driveway to his home. He turned on an outside light and walked out of his home toward the vehicle. A man sitting in the driver's seat, who appeared to be covering his face with his hands, asked Plungis for directions when Plungis was about thirty-five feet from the house and about fourteen feet from the vehicle. At this point two men, whom Plungis had not seen, brutally attacked Plungis, bound him and rendered him unconscious, causing permanent disability. Plungis' nephew, who lived about a quarter of a mile away, heard "hollering" and observed unusual activity at his uncle's home and proceeded from his home to investigate. As he approached, the assailants took Plungis' billfold and fled, abandoning their vehicle. Plungis' nephew attended to his uncle's wounds and, with his rifle, fired into the gas tank and at a front tire of the vehicle, disabling it. He then left the premises to call the police. Plungis had approximately $1200 in his wallet; so far as he *422 knew, only those who had made purchases of cattle and hay from him knew that he possessed that amount of cash. Edward Boker Co., Inc., Bronx, New York, owned the assailants' vehicle and maintained it for the sole use of Morris Unger, chairman of its board of directors. The company employed the defendant from February 26, 1968, through August 21, 1968, to drive the vehicle. On August 21, 1968, the defendant returned Unger to his home at 6 p.m.; the defendant's duties then required him to garage the automobile at a location directly across the street from the Unger residence on 72nd Street in the city of New York. On the morning of August 22, the Watertown, Connecticut, police informed the president of Edward Boker Co., Inc., Sidney Schwartzreieh, that the company's vehicle was in Watertown. Schwartzreieh then inquired at the garage about the vehicle and learned that it had not been returned to the garage on the evening of August 21. He was unsuccessful in his attempts to reach the defendant, either at the defendant's home in the city of New York or at the home of the defendant's mother in the city of Waterbury. The defendant never called for or requested the pay check which was due him. On August 22, the defendant called the Unger residence and inquired of a domestic whether Unger was "mad at him" about the disappearance of the vehicle. Other than this inquiry, the defendant made no report concerning the vehicle. The Watertown police sent out an all-points broadcast that reached thirteen states and indicated that it was looking for the defendant. After August 22, a Watertown police detective attempted to contact the defendant a number of times. The Boker vehicle was "dusted" for fingerprints *423 and one clear print was found on the rearview mirror and another print was found superimposed on a third print. The clear fingerprint was identified as belonging to the defendant. On August 29, 1968, a warrant was issued for the arrest of the defendant. In April, 1969, the Watertown police received information from the city of New York as to the whereabouts of the defendant and commenced extradition proceedings. Because of internal difficulties at the Watertown police department, no one appeared for the department at the third extradition hearing in the city of New York or received notice of the decision denying extradition. The defendant was arrested in Waterbury in July, 1969. The defendant offered evidence to prove the following facts: After leaving Unger at his residence on the evening of August 21, 1968, the defendant went to a cafe near 47th Street in the city of New York. He parked the Boker vehicle at a meter in the vicinity of the cafe and left the keys on the sun visor. He decided to leave the vehicle parked there through the night, as allowed by city parking regulations, because it was "more convenient" than returning it to the 72nd Street garage where it was supposed to be kept. From the cafe he went to his girl friend's home where he ate, read and watched television. He did not leave his girl friend's home to get the vehicle until 8:10 or 8:15 the following morning. He found that it was not where he had left it and, believing that it had been towed away, he called his girl friend to borrow money to redeem the vehicle. He went to the pound where confiscated vehicles were towed. He was informed that the vehicle was not there. He then called the Unger residence and told a maid that the vehicle had been stolen. Again, at about 4:30 p.m., he called the Unger residence *424 and was told that Unger was angry about the disappearance of the automobile. He decided not to return to work because he knew that he would be fired and he did not think "it was worth the humiliation" to collect the salary for working three days which was owed to him. He first learned of the crime involved in this case when extradition papers were served; when the extradition was denied, he believed that "it was all over." He visited his parents in Connecticut on several occasions and on one occasion, when he appeared at the Waterbury police station to inquire about a driver's license, he was arrested for the crimes charged here. At the time of the trial in January of 1970, the defendant had been a doorman at the Sheraton-Russell Hotel for five months. Before his job at the Sheraton-Russell, he had worked as a doorman at the Waldorf-Astoria Hotel for six months. It is the state's claim that the defendant attempted to fabricate an alibi and that such attempt, together with the evidence which the state offered, amply supported the jury verdict convicting the defendant of robbery with violence. The evidence presented by the state was circumstantial; one of the circumstances relied on by the state was the defendant's alleged flight from the scene of the savage beating. Flight, when unexplained, tends to prove a consciousness of guilt. State v. Miller, 154 Conn. 622, 628, 228 A.2d 136; State v. Ford, 109 Conn. 490, 496, 146 A. 828; 1 Wharton, Criminal Evidence (12th Ed.) § 205; 1 Wigmore, Evidence (3d Ed.) § 276. The only evidence which supports this claim is that the defendant drove the Boker vehicle at about 6 p.m. one evening in the city of New York, which vehicle was found abandoned in Connecticut at about midnight with the keys in it; that his employer and a *425 detective tried to contact the defendant at his home and at his mother's home on August 22, 1968; that a thirteen-state alarm was sent out by the police on the same day without any explanatory evidence as to the effect of such an alarm, other than to inform other police departments that the defendant was wanted; that a detective attempted "a number of times" to contact the defendant, without any evidence as to what he did or the extent of his attempts; and that the defendant resisted extradition seven months later. Assuming that the jury completely disbelieved the defendant's testimony, the evidence hardly supports a conclusion that the defendant fled. The fact that the defendant drove a vehicle at 6 p.m. in the city of New York which was found at about midnight in Watertown with the keys in the ignition is not a sufficient basis for a reasonable inference that the defendant was in Watertown at midnight. Moreover, the fact that the police sought the defendant cannot by itself support an inference of his flight. Flight may be established by proof of the efforts of the police to locate the defendant. See United States v. Waldman, 240 F.2d 449, 452 (2d Cir.). Such proof, however, must be supported by either direct or inferential evidence that the defendant knew he was wanted by the police. With that evidence, the vain efforts of the police to find him would tend to show that he intended to elude them. See Kanner v. United States, 34 F.2d 863, 866 (7th Cir.); note, 25 A.L.R. 886, 899; 29 Am. Jur.2d, Evidence, 280, 281. In the case before us, the state was able to show only that the defendant knew of and opposed the attempt at his extradition. That the defendant exercised his legal right to defend against his extradition in New York proceedings is *426 not a proper basis for inferring that the defendant fled from the police or possessed a consciousness of guilt—just as pleading not guilty or defending against any criminal charge is not a proper basis for inferring a consciousness of guilt. The state's argument that the flight of the defendant was a proper element to be considered by the jury is not supported by the evidence. The fact that the defendant's fingerprints were on the rearview mirror of the abandoned vehicle, in and of itself, is of no moment. Unless it can be shown that the circumstances are such that the fingerprints could have been impressed only at the time the crime was perpetrated, the presence of the defendant's fingerprints on the rearview mirror does not establish his connection with the crime charged. See United States v. Corso, 439 F.2d 956, 957 (4th Cir.); United States v. Jones, 433 F.2d 1107, 1109 n. (D.C. Cir.); United States v. Collon, 426 F.2d 939, 942 (6th Cir.); Borum v. United States, 380 F.2d 595 (D.C. Cir.); Rhoden v. State, 227 So.2d 349 (Fla. App.); Brunson v. State, 9 Md. App. 1, 261 A.2d 794, following McNeil v. State, 227 Md. 298, 176 A.2d 338; note, 28 A.L.R.2d 1115, 1155-57, It is undisputed that the defendant was regularly employed to drive the vehicle and was rightfully in it six hours before the time the crime was committed. Under these circumstances, the fact that the defendant's fingerprints were found on the vehicle has no probative force. The state heavily relies on the right of the jury to find the evidence offered by the defendant to be a fantastic and obviously concocted story which attempted to fabricate an alibi. It is apparent that the jury could so find. Even assuming, however, that the jury rejected all of the evidence which the *427 defendant offered, the jury would not have been entitled to make an affirmative finding to the contrary. Marquis v. Drost, 155 Conn. 327, 332, 231 A.2d 527; Panicali v. Connecticut State Board of Labor Relations, 147 Conn. 344, 348, 160 A.2d 903; Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 680, 154 A.2d 608; Walkinshaw v. O'Brien, 130 Conn. 151,153, 32 A.2d 639; Meagher v. Colonial Homes Co., 109 Conn. 343, 347, 146 A. 609; State v. Poplowski, 104 Conn. 493, 495,133 A. 671. Obviously the jury concluded that the defendant was one of the three assailants involved in the Plungis robbery on August 21, 1968. We do not believe that the evidence was sufficient to justify that conclusion. Considering that (1) the presence of the defendant's fingerprints on the rearview mirror is of no probative force, that (2) the evidence was insufficient to establish flight, and that (3) the rejection of the defendant's testimony does not authorize an affirmative finding to the contrary, the evidence, construed most favorably to the state, established only that the defendant operated a vehicle in the city of New York on August 21, 1968, at about 6 p.m., and that the vehicle was on the Plungis' premises at about midnight that evening with keys in the ignition. No evidence was offered to show that the defendant knew or had any connection with Plungis or that he knew that Plungis had a substantial amount of money on his person on August 21, 1968. No evidence was offered to tie the defendant with Plungis in any way. "A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant's guilt and inconsistent with any other *428 rational conclusion." State v. Foord, 142 Conn. 285, 295, 113 A.2d 591; State v. Kelsey, 160 Conn. 551, 553, 274 A.2d 151; State v. Reid, 154 Conn. 37, 40, 221 A.2d 258; State v. Annunziato, 145 Conn. 124, 136, 139 A.2d 612. Although it is true that a conviction may be supported wholly by circumstantial evidence, that evidence must be sufficient to prove guilt beyond a reasonable doubt. State v. Reid, supra. The evidence was insufficient to establish the guilt of the defendant to that degree. It may be that the defendant was either a participant or an accomplice in the savage beating of Plungis but, in a trial of a person charged with the commission of a crime, the time-tested safeguards which the law has erected for the protection of the innocent may not be subverted in order to punish one who may be a guilty person. State v. Doucette, 147 Conn. 95, 108, 157 A.2d 487, overruled on other grounds, State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494; State v. Ferrone, 97 Conn. 258, 270, 116 A. 336. There is error, the judgment is set aside and the case is remanded with direction to grant the motion to set the verdict aside. In this opinion the other judges concurred.

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before HAIGHT, PENLAND, and WOLFE Appellate Military Judges UNITED STATES, Appellee v. Private (E-2) STUART H. CLARK United States Army, Appellant ARMY 20140312 Headquarters, Maneuver Support Center of Excellence and Fort Leonard Wood Gregory B. Batdorff, Military Judge Colonel Robert F. Resnick, Staff Judge Advocate For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R. Inkenbrandt, JA; Captain Amanda R. McNeil, JA (on brief). For Appellee: Colonel Mark H. Sydenham, JA; Major A.J. Courie III, Major Daniel D. Derner, JA; Captain James P. Curtin, JA (on brief). 16 December 2015 ----------------------------------- SUMMARY DISPOSITION ----------------------------------- WOLFE, Judge: A general court-martial composed of a military judge convicted appellant, consistent with his pleas, of one specification of sexual abuse of a child, two specifications of producing child pornography, and two specifications of possessing child pornography in violation of Articles 120b and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920b and 934 (2012) [hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable discharge, confinement for six years, and a reduction to the grade of E-1. Pursuant to a pretrial agreement, the convening authority reduced the confinement to sixteen months and approved the remainder of the sentence. Appellant’s case is before this court for review under Article 66, UCMJ. Appellant assigns two allegations of error, one of which merits discussion but not relief. CLARK—ARMY 20140312 Background During the summer and early fall of 2013, appellant met two unrelated children online - girls aged 13 and 16. During a series of emails and chats, he independently convinced both of them to take graphic photos of themselves in various stages of undress and nudity. Despite knowing their age, appellant sent each child emails directing them on how to take additional photos, how to position themselves, and how to better display their genitals for his sexual pleasure. Both children complied and sent appellant a series of pictures. Appellant copied and stored the pictures and reviewed them weekly for the purpose of sexual gratification. Appellant pleaded guilty to one specification of sexual abuse of a child for communicating indecent language to the 13-year old child, including telling her to use two fingers to spread open her labia. Appellant pleaded guilty to two specifications of producing child pornography for directing both children to create child pornography that did not previously exist. * Appellant pleaded guilty to two specifications of possessing child pornography for copying the images he was sent on to various media devices so he could view them later. Unreasonable Multiplication of Charges On appeal, for the first time, appellant argues that the charges are unreasonably multiplied, and that the military judge abused his discretion in not merging the specifications. We disagree. As an initial matter, we note that appellant specifically waived this issue when he agreed to waive all waivable motions under the exact same circumstances as were presented in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009). While this court can notice a waived error, see Article 66(c), UCMJ, we decline to do so in this case for two independent reasons. First, appellant’s convictions address three separate criminal acts, each designed to avoid different societal harms. When appellant indecently communicated graphic sexual language to children, the offense was completed regardless of whether the children eventually complied with his direction to provide sexual photos. When the children took the photos at appellant’s direction, appellant produced child pornography. When appellant copied and saved the images and reviewed them on a regular basis for the purpose of sexual gratification, the victimization of the children continued. Appellant stipulated that child pornography * Appellant’s providence inquiry was detailed and lengthy and included admissions that he was giving directions on how to pose in the same manner as a photographer would direct a model. 2 CLARK—ARMY 20140312 is not a victimless crime and to the unknown future impact his offenses may have on his victims. Second, it important to note that appellant’s pleas were part and parcel of a negotiated guilty plea. That is, in exchange for a substantial limit to the confinement appellant would serve, appellant agreed to plead guilty to all charges and specifications. If, for example, appellant had raised the issue of unreasonable multiplication of charges at trial, he would have violated his agreement with the convening authority and risked losing the benefit of the deal. Alternatively, had appellant negotiated to plead guilty to only some of the offenses, or to have the offenses merged, it is far from certain that the parties would have arrived at the same deal. Appellant fails to provide any reason to disturb this negotiated agreement, and our independent review of the record finds none. Conclusion After considering the entire record and the submissions of the parties, the findings of guilty and the sentence are AFFIRMED. Senior Judge HAIGHT and Judge PENLAND concur. FOR THE COURT: FOR THE COURT: JOHN P. TAITT JOHN Chief P. TAITT Deputy Clerk of Court Deputy Clerk of Court 3 

745 S.W.2d 253 (1988) Brian HAMMONS, Guardian of the Estate of Francis Ralph Eisert, a/k/a Ralph Francis Eisert, Plaintiff-Respondent, v. Eugene EISERT, et al., Defendant-Appellant. Vernon B. TYLER, Plaintiff-Respondent, v. Eugene EISERT, et al., Defendant-Appellant. Nos. 15069, 15070. Missouri Court of Appeals, Southern District, Division Two. February 9, 1988. *254 Robert L. Payne, P.C., Cassville, for defendant-appellant. Joseph B. Phillips, Stockton, for plaintiff-respondent. FLANIGAN, Judge. On July 20, 1977, Nina Bowles, using her own money, purchased two certificates of deposit at a savings and loan institution in Springfield. One certificate, in the amount of $11,700, was payable to "Nina Bowles, Trustee for Francis Ralph Eisert." The other certificate, also in the amount of $11,700, was payable to "Nina Bowles and Eugene Eisert, Co-trustees for Vernon E. Tyler." This opinion will refer to the foregoing persons by their respective first names. On May 12, 1980, Nina, then 90, and Eugene pledged the two certificates as security for two loans, one in the amount of $10,530 and the other in the amount of $10,500. Later the security was used to pay the loans and Eugene received the balance of the security. Checks representing the loans were delivered to Nina and Eugene. One check was payable to Nina and Eugene as co-trustees for Vernon, and the other check was payable to Nina as trustee for Francis. On May 13, 1980, Nina and Eugene cashed both of the checks. With that cash they purchased a Chevrolet for $5,200. *255 The balance of the money, $15,830, was applied by Eugene to the payment of a debt owed by Eugene to a bank in Greenfield. On March 1, 1981, Nina died. On April 6, 1981, a guardian was appointed for Francis, an incompetent person. In December 1981 Francis, through his guardian, filed an action against several defendants, including Eugene. In October 1982 Vernon filed an action against several defendants, including Eugene. The petitions in both of the actions alleged that Eugene exercised undue influence over Nina throughout the foregoing transactions. Vernon claimed that Eugene's undue influence over Nina caused Nina to revoke Vernon's trust. Francis claimed that Eugene's undue influence over Nina caused Nina to revoke Francis's trust. Both petitions alleged that the trust funds were diverted by Eugene to his own use. Both petitions sought actual and punitive damages. Vernon and Francis were represented by the same counsel. On motion of the plaintiffs, the cases were consolidated and tried to a jury. In Francis's case the jury found in favor of Francis and against Eugene and awarded Francis actual damages. The jury awarded Vernon $5,000 in punitive damages against Eugene, as well as actual damages. The details of the verdicts are set forth later in this opinion. In Francis's case the trial court entered judgment in favor of Francis's guardian and against Eugene in the sum of $12,804.13. In Vernon's case the trial court entered judgment in favor of Vernon and against Eugene in the sum of $22,649.61 for actual damages and $5,000 for punitive damages, for a total amount of $27,649.61. Eugene appeals from the two judgments, and his two appeals were consolidated in this court. In general, Eugene contends that the respective petitions failed to state a claim upon which relief can be granted against Eugene, that Francis and Vernon failed to make a submissible case against Eugene, that the cases were improperly consolidated for trial, that Eugene was entitled to a mistrial due to improper argument by plaintiffs' counsel, and that neither plaintiff was entitled to the award of "pre-judgment interest" contained in the verdicts and judgments. On this appeal this court confines its review to the "points relied on." Rule 84.04(d).[1]Kurtz v. Fischer, 600 S.W.2d 642, 645[1] (Mo.App.1980). "The questions for decision on appeal are those stated in the points relied on, and a question not there presented will be considered abandoned on appeal and no longer an issue in the case." Pruellage v. De Seaton Corporation, 380 S.W.2d 403, 405[3] (Mo.1964). See also Smith v. Welch, 611 S.W.2d 398, 399[1] (Mo.App.1981). Matters which could have been raised, but were not, are neither mentioned nor considered. This opinion should be so viewed. Eugene's first point reads: "The court erred in submitting these cases to the jury on the ground that plaintiffs' petitions fail to state a cause of action recognized by the courts of this state and to grant appellant's motion for summary judgment, in that the evidence showed as a matter of law that a revocable `Totten' trust was created by Nina Bowles and that she unilaterally revoked, thus plaintiffs are without standing to recover under the facts as were alleged in the pleadings." Portions of Eugene's first point appear to claim that the petitions are defective and that the court should have sustained his motion for summary judgment. Those portions have not been preserved for appellate review for the reason that the statement of facts section of Eugene's brief makes no mention of the contents of Vernon's petition or Francis's petition, nor does it mention the contents of Eugene's motion *256 for summary judgment. Rule 84.04(c). The legal file does not contain Eugene's motion for summary judgment, contrary to Rule 81.12(a). As this court understands Eugene's first point, it is that Nina, in obtaining issuance of the two certificates of deposit on July 20, 1977, created two separate revocable trusts which she "unilaterally revoked," and that plaintiffs may not complain of her act in so doing. Eugene's theory seems to be that Nina exercised her power to revoke the trusts by pledging the two certificates of deposit on May 12, 1980, and that she had a right to do so. Eugene relies primarily on First Nat. Bank of Mexico v. Munns, 602 S.W.2d 910 (Mo.App.1980), where a grantor established a revocable trust in a savings account in a bank and later pledged the trust certificate of deposit as security for a loan. The court held that the grantor's actions revoked the trust to the extent necessary to secure the loan and that upon the grantor's default in the payment of the loan the lender was entitled to the funds held in the account, despite the claims of the trust beneficiaries. Eugene concedes, at least tacitly, that if the two trusts had not been revoked by Nina during her lifetime, Vernon and Francis would have been entitled to the respective trust funds. See § 369.179. Neither Eugene's first point nor his argument in support of it mentions the fact that both petitions allege that Nina's conduct in pledging the two certificates of deposit was the product of undue influence exercised by Eugene. The two plaintiffs introduced substantial evidence on the issue of Eugene's undue influence, but Eugene's brief makes no mention of that evidence. Much of the evidence concerning that issue came from Eugene himself, whom the plaintiffs called as an adverse witness. Eugene argues, and plaintiffs tacitly agree, that Nina's procurement of the two certificates of deposit on July 20, 1977, constituted the creation by her, as settlor, of two revocable trusts, with Francis and Vernon as the respective beneficiaries. Neither party has cited any authority on the question of whether a beneficiary of a revocable trust has a claim for relief, at least after the death of the settlor, against a third person who, by undue influence, induces the settlor to revoke the trust and diverts all or part of the trust funds to his own purpose. There seems to be no direct Missouri authority on the issue. Missouri recognizes a cause of action for tortious interference with business relations. Fischer, Etc. v. Forrest T. Jones & Co., 586 S.W.2d 310, 315 (Mo. banc 1979); Minn. Mining & Mfg. Co. v. Williamson, 675 S.W.2d 951, 953[1] (Mo.App.1984). Missouri has long recognized that the exercise of undue influence may result in the invalidity, or at least avoidability, of the transfer of a note, Crowe v. Peters, 63 Mo. 429 (1876); the assignment of a contract, Metropolitan Paving Co. v. Brown-Crummer Inv. Co., 309 Mo. 638, 274 S.W. 815 (1925); the execution of a will, Maurath v. Sickles, 586 S.W.2d 723 (Mo.App.1979), a deed, Been v. Jolly, 247 S.W.2d 840 (Mo. 1952), a mortgage, Bell v. Campbell, 123 Mo. 1, 25 S.W. 359, 45 Am.St.Rep. 505 (1894), or a trust instrument, Creek v. Union Nat. Bank in Kansas City, 266 S.W.2d 737 (Mo.1954); and the making of a gift, Michaelson v. Wolf, 364 Mo. 356, 261 S.W. 2d 918 (Mo.1953), or a guaranty, Tandy v. Elmore-Cooper Live Stock Commission Co., 113 Mo.App. 409, 87 S.W. 614 (1905). "Undue influence," at least as used in a will contest, means such influence as destroys the free choice of the person making the will. MAI 15.03. Substantial out-state authority recognizes the cause of action of tortious interference with non-business forms of advantageous economic relations. In Mitchell v. Langley, 123 Ga. 827, 85 S.E. 1050 (1915), the owner of a benefit certificate named Langley as beneficiary. The owner had the right to change the beneficiary. Mitchell fraudulently induced the owner to change the beneficiary and to appoint Mitchell as the new beneficiary of the fund, which was payable on the death of the owner. The owner died after the change was made, and Mitchell collected the amount due under the amended certificate. Upholding Langley's claim against Mitchell, the court said that although Langley *257 had no vested interest in the certificate, this did not prevent Langley from proceeding in equity to have a trust declared in her favor if the benefit which would have accrued to her was diverted from her and the fund went into the possession of Mitchell by means of fraud. At p. 1053 the court said: "Would not a man have the right to receive gifts or insurance or the like, if they were in process of being perfected, and would have come to him but for malicious and fraudulent interference? A bare possibility may not be within the reason for this position. But where an intending donor, or testator, or member of a benefit society, has actually taken steps toward perfecting the gift, or devise, or benefit, so that if let alone the right of the donee, devisee, or beneficiary will cease to be inchoate and become perfect, we are of the opinion that there is such a status that an action will lie, if it is maliciously and fraudulently destroyed, and the benefit diverted to the person so acting, thus occasioning loss to the person who would have received it." Section 774B of the Restatement of Torts 2d recognizes a cause of action for intentional interference with an inheritance or gift. That section reads: "One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift." In addition to Mitchell v. Langley, supra, out-state cases recognizing the cause of action of tortious interference with a gift or inheritance include the following: Davison v. Feuerherd, 391 So.2d 799 (Fla.App. 1980); Nemeth v. Banhalmi, 99 Ill.App.3d 493, 55 Ill.Dec. 14, 17, 425 N.E.2d 1187, 1190[1] (Ill.App.1981); Frohwein v. Haesemeyer, 264 N.W.2d 792, 795[2] (Iowa 1978); Cyr v. Cote, 396 A.2d 1013, 1018[11] (Me.1979); King v. Acker, 725 S.W.2d 750, 754[5] (Tex.App.1987); DeWitt v. Duce, 599 F.2d 676 (5th Cir.1979). See also Holt v. First Nat. Bank of Mobile, 418 So.2d 77, 79[2] (Ala.1982). Scholarly treatment of the general subject may be found in the following authorities: Prosser & Keeton on Torts (5th Ed.) § 130, p. 1007; Laws of Torts, Harper, James and Gray (2d Ed.) Vol. 2, § 6.11, p. 345; 22 A.L.R.4th, 1229 (Liability in Damages for Interference with Expected Inheritance or Gift); 19 U.K.C.Law Rev. 78 (1950) (Tort Liability for Interference with Testamentary Expectancies in Decedents' Estates). In Cyr v. Cote, supra, at 1019, footnote 7, the court said: "In recognizing this tort, we emphasize that it is one for the wrongful interference with an intended bequest and not an independent action for undue influence or duress. Rather, undue influence and duress, traditionally considered wrongful under well-established precedent... are simply the means by which the alleged interference occurred." (Citing authorities.) In Nemeth v. Banhalmi, supra, 55 Ill. Dec. at 18, 425 N.E.2d at 1191, the court pointed out that the interference must be "conduct tortious in itself, such as fraud, duress or undue influence." In Davison v. Feuerherd, supra, the doctrine of tortious interference with an expected gift or inheritance was applied in favor of the beneficiary of a revocable trust where the defendants, through undue influence, induced the settlor to revoke the trust. The court said, at p. 802: "[W]ith regard to tortious interference claims, no real distinction exists between gifts of inheritance through a will and gifts through a revocable trust. Both forms of giving create only an expectancy in the beneficiary and, in both forms, the donor has the privilege of changing his mind. The rationale of the court in Mitchell v. Langley is applicable to and derived from cases dealing with wills, and yet the situation in that case involved a benefit certificate. It is the expectancy status to which this theory of liability applies, and both wills and revocable trusts create expectancies." At p. 801, the court quoted with approval the following statement of Dean Prosser: *258 "There is no essential reason for refusing to protect such non-commercial expectancies, at least where there is a strong probability that they would have been realized. * * * The problem appears in reality to be one of satisfactory proof that the loss has been suffered, instead of the existence of a ground of tort liability." Eugene's position is, simply, that the two trusts created by Nina on July 20, 1977, were revocable and she revoked them, thus depriving plaintiffs of their standing to sue. This position does not address the fact that the petitions alleged that the revocation was the result of Eugene's undue influence and that the plaintiffs introduced substantial evidence in support of those allegations. Eugene makes no mention of the foregoing authorities which support plaintiffs' cause of action. This court holds that the beneficiary of a revocable written trust has a cause of action, at least after the death of the settlor, against a person who, by the exercise of undue influence induces a settlor to revoke the trust and thereby diverts all or part of the trust funds and prevents the beneficiary from receiving that which he would otherwise have received. The additional fact that Eugene was a co-trustee with Nina in Vernon's trust does not, of course, excuse Eugene's conduct with respect to that trust, but indeed demonstrates that he violated a fiduciary duty as well. Eugene's first point has no merit. Eugene's second point is that the trial court erred in "consolidating the two causes for trial" because the consolidation "allowed the jury to hear evidence of two alleged `bad acts' instead of hearing each case on its own evidentiary merits." Eugene cites no authority in support of his second point other than Rule 66.01(b) which, in pertinent part, reads: "When civil actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the civil actions; it may order all the civil actions consolidated;..." Although the two actions had different plaintiffs, they had the same defendants. Each action involved the events of July 20, 1977, and May 12 and 13, 1980, described in the first three paragraphs of this opinion. It is clear that the two actions involved common questions of law and common questions of fact. The two actions were consolidated for trial on the motion of the plaintiffs. Where, as here, the requirements of Rule 66.01(b) have been met, a determination of such a motion requires the exercise of a sound judicial discretion on the part of the trial court. State ex rel. Rosen v. McLaughlin, 318 S.W.2d 181, 184[2] (Mo. banc 1958); State ex rel. Allen v. Yeaman, 440 S.W.2d 138, 145[5] (Mo. App.1969). This court holds that the trial court did not abuse its discretion in holding a joint trial of the two actions. Eugene's second point has no merit. Eugene's third point is that the trial court erred in failing to declare a mistrial when one of plaintiffs' attorneys made an allegedly improper statement during his final argument to the jury. During the course of the trial Eugene, called as an adverse witness by the plaintiffs, was interrogated by plaintiffs' counsel concerning his financial condition. When Eugene refused to answer, his counsel requested a recess and a recess was taken. When the court reconvened, Eugene answered the questions. Referring to Eugene, plaintiffs' counsel, during the course of his final argument, said: "You saw what kind of person, how free and open he was. We had to take a break, and it was explained to him—his attorneys say that he had to be open and he should be—well, his lawyer, I know what they told him back there; they told him if he didn't answer those questions and I was asking the Judge to instruct him to answer—he kept—and, the Judge instructed him to answer, and he kept refusing to answer, he would have went to jail for contempt of this Court. That's why he answered those questions; not because he wanted to be free and open." *259 At that point an attorney for another defendant made an objection and the objection was sustained. Eugene's counsel made no objection, nor did he join in the objection which was made. No request for a mistrial was made by any counsel. In his argument to this court on this appeal, Eugene's counsel did not question the accuracy of the statement that the witness would go to jail for contempt of court if he persisted in his refusal to answer. Counsel's complaint is that there was no factual predicate for the argument, that is, there was no showing that Eugene's counsel gave such advice to Eugene. A request for a mistrial based on allegedly improper final argument comes too late where, as here, it appears initially in a motion for new trial. Halley v. Schopp, 400 S.W.2d 123, 126[5, 6] (Mo.1966). Eugene's third point has not been preserved for appellate review. This court holds that the challenged argument does not constitute plain error. Rule 84.13(c). See Underwood v. Crosby, 447 S.W.2d 566, 570[10] (Mo. banc 1969). Eugene's third point has no merit. Eugene's fourth point is that the trial court erred in including in the judgments in favor of the respective plaintiffs "interest at the rate of 12% compounded quarterly from March 1, 1981, after the jury returned such a verdict where there was no evidence or jury instruction authorizing such a finding." Both petitions demanded interest, and Eugene has not challenged the sufficiency of those demands. The two verdicts awarded actual damages in certain principal amounts, which Eugene does not contest.[2] Those verdicts purported to award 12% interest "compounded quarterly from March 1, 1981, until paid." March 1, 1981, was the date of Nina's death. At the time the verdicts were received, Eugene's counsel made no objection to their contents. The statement of facts section of Eugene's brief makes no mention of interest except for stating the contents of the two verdicts. That section does not mention evidence concerning interest or instructions concerning interest. The record on appeal does not contain any of the instructions. The events set forth in the first three paragraphs of this opinion, coupled with evidence of Eugene's undue influence, entitled each plaintiff to an award of prejudgment interest. In Cannon v. Bingman, 383 S.W.2d 169, 174 (Mo.App.1964), this court said: "[I]f money is wrongfully or fraudulently obtained or withheld the law raises an artificial implied promise to pay interest from the date the money is wrongfully obtained. It is also held that where a wrongful act is involved, interest is recoverable as a part of the damages." Section 408.020 "permits interest on liquidated claims arising by operation of law as well as upon contract." Coleman v. Kansas City, 182 S.W.2d 74, 78[11] (Mo. banc 1944). The general rule is that in actions of trover, or actions in the nature of trover, for the conversion of property, interest or the equivalent of interest on the value of the property converted may be recovered. Independence Flying Service, Inc. v. Ailshire, 409 S.W.2d 628, 632[7] (Mo.1966). The rate of interest allowable is that prescribed by § 408.020. Id. See also Southern Missouri Bank v. Fogle, 738 S.W.2d 153, 158[9] (Mo.App.1987). Although usually, in conversion actions, interest is allowed on the value of the property from the date of its conversion, plaintiffs, by not appealing, make no complaint that interest should run from the date of defendant's wrongful acts as distinguished from the date of Nina's death. Nina had the right to make a valid revocation, and plaintiffs had no right to the trust funds until she died. In Doerflinger Realty Company v. Fields, 281 S.W.2d 609 (Mo.App.1955), the *260 jury verdict awarded interest but did not compute the amount. The court held that the trial court should have refused to accept the verdict as returned, but that no reversal was required. The court pointed out that the amount of interest is a "mere mathematical calculation" and the court of appeals modified the judgment to reflect the correct amount of interest. In Campbell v. Kelley, 719 S.W.2d 769 (Mo. banc 1986), the only issue before the jury was whether the agreement in question was a promissory note. The jury resolved that issue in favor of the plaintiff but made no award of damages. The court held that since the jury found the agreement was a note, plaintiffs were entitled to principal and interest and that the court could perform the necessary calculations and enter judgment accordingly. Although the instant verdicts seek to award 12% interest compounded quarterly from March 1, 1981 until paid, the allowable rate of interest is 9% per annum. § 408.020. The provision with respect to quarterly compounding was also improper. Nika Corp. v. City of Kansas City, Mo., 582 F.Supp. 343, 367[31] (W.D.Mo.1983). In a jury case the judgment "shall be entered as of the date of the verdict." Rule 78.04. The instant verdicts were returned on October 7, 1986. Each plaintiff was entitled to interest on their respective actual damages awards, set forth in footnote 2, from March 1, 1981 until October 7, 1986. Accordingly, based upon the verdicts, Vernon was entitled to actual damages in the amount of $17,596.80, and $5,000 punitive damages for a total judgment of $22,596.80, and Francis was entitled to $9,776 in actual damages. On remand, the trial court is instructed to enter the respective judgments as of October 7, 1986, to reflect the corrected figures. As so modified, the judgments are affirmed. PREWITT, P.J., and MAUS, concur. HOGAN, J., not participating. NOTES [1] All references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1986, V.A.M.S. [2] The jury awarded Vernon $11,700 in actual damages plus the challenged interest, as well as punitive damages. $11,700 was the amount of each certificate of deposit obtained by Nina on July 20, 1977. Each certificate bore interest at 7¾% per annum. The jury awarded Francis $6,500 in actual damages which, perhaps, was based on the difference between the amount of the certificate naming him as beneficiary and $5,200, the purchase price of the Chevrolet purchased on May 13, 1980.

856 F.2d 197 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Elmer WINTERS, Plaintiff-Appellant,v.Patrick LYNCH; City of Euclid; Euclid Police Department;Anthony J. Giunta, Mayor; Unknown, PoliceOfficers, Defendants-Appellees. No. 87-3804. United States Court of Appeals, Sixth Circuit. Aug. 31, 1988. 1 Before NATHANIEL R. JONES and RALPH B. GUY, Jr., Circuit Judges and DOUGLAS W. HILLMAN, Chief District Judge.* ORDER 2 This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). 3 Plaintiff, an Ohio state prisoner, appeals the district court's judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. Sec. 1983. 4 Seeking monetary relief, plaintiff filed suit in June of 1985 alleging that his constitutional rights were violated in May of 1980 when police officers physically abused him during the course of an arrest. Plaintiff also alleged that while detained at the Euclid, Ohio jail, he was again beaten, stripped naked, not given any food, and not allowed to telephone his attorney. In an earlier appeal (Case No. 85-4002), this court remanded the case to the district court for further consideration. Upon remand, the district court dismissed the complaint as time-barred by Ohio's one year statute of limitations. 5 Upon review, we shall affirm the district court's judgment. Plaintiff's suit was filed well beyond the one year statute of limitations contained in Ohio Rev.Code Sec. 2305.11. Plaintiff was arrested and placed in the Euclid, Ohio jail on May 21, 1980; but his complaint was not filed until June 27, 1985, well over four years after the limitations period had expired. Moreover, plaintiff's incarceration did not toll the limitations period. Higley v. Michigan Dep't of Corrections, 835 F.2d 623, 626-27 (6th Cir.1987); Perotti v. Carty, No. 86-4014 (6th Cir. June 13, 1988). Finally, even if the limitations period were tolled during the time plaintiff was adjudged mentally incompetent, the suit would still be time-barred as the time period commenced running again when he was adjudged competent in October of 1981. 6 Accordingly, the district court's judgment is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit. * The Honorable Douglas W. Hillman, Chief U.S. District Judge for the Western District of Michigan, sitting by designation

50 F.3d 16 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Daniel AMES, Defendant-Appellant. No. 94-30114. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 9, 1995.Decided March 15, 1995. Before: WRIGHT, HALL, and WIGGINS, Circuit Judges. 1 MEMORANDUM* FACTS 2 State narcotics agents received a tip that Daniel Ames wanted to find a local source of cocaine in the Idaho Falls, Idaho area. They set up a sting operation in which INS Agent Al Martinez posed as a drug dealer, and agreed to sell Ames an ounce of cocaine. Martinez and Ames met in a parking lot, where they got into Martinez's car and completed the drug sale. The transaction was captured on videotape and audiotape, and Ames was arrested as soon as he got out of the car. The arresting officers retrieved a loaded 9 mm. handgun from between the front seats of Ames' car. Paraphernalia associated with drug trafficking was also found in his car. 3 Ames was indicted on two counts: possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1); and using or carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1). Prior to trial he entered a guilty plea to Count I. He proceeded to a jury trial on Count II (the firearm charge), and was found guilty. He appeals that conviction. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm. DISCUSSION I. Informing the Jury of the Guilty Plea 4 Appellant argues that the district court erred by granting the Government's motion to preclude any reference to Appellant's guilty plea to Count I, the underlying drug offense. The district court held that the guilty plea was irrelevant to the jury's decision on Count II. We review the district court's decision for an abuse of discretion. United States v. Perkins, 937 F.2d 1397, 1400 (9th Cir.1991). 5 We conclude that the district court did not abuse its discretion. Appellant's guilty plea on count I does not make his guilt on Count II "more probable or less probable than it would be without the evidence." See Fed.R.Evid. 401. Appellant argues that informing the jury of his guilty plea would have enhanced his credibility, but his plea is not probative of his likelihood to tell the truth. Contrary to his assertion that the plea demonstrates that he is the type who accepts responsibility when he is guilty, the plea could mean many things totally unrelated to his truthfulness. It could mean that he realized the government had a really strong case against him, for example, and that it would have been futile to contest it. Or it could mean that the government agreed to recommend a smaller sentence on that count. 6 We also reject Appellant's second rationale for allowing the guilty plea into evidence. Appellant states that without evidence of his guilty plea the jury wrongly believed that if it found him not guilty on the firearm charge, it would have been letting an admitted drug pusher go free. Appellant is merely conjecturing as to what the jury was thinking, however. Further, admission of the evidence would just as likely have introduced an improper jury prejudice as eliminated one. That is, it may have eliminated an improper fear of allowing a drug dealer to go free, but it might just as likely have introduced a feeling that because the defendant was already going to serve time for Count I, the jury needed not find him guilty on Count II, as well. 7 II. Evidence of Appellant's Prior Drug Transactions 8 Appellant also argues that the district court erred in allowing the Government to cross examine him concerning prior drug transactions. He argues that this evidence is irrelevant, prejudicial, and precluded by Federal Rule of Evidence 404(b). We review the district court's decision for abuse of discretion. United States v. Ono, 918 F.2d 1462, 1464 (9th Cir.1990). It is clear that the district court did not abuse its discretion in this case. 9 The gist of Appellant's argument is that he stipulated to being a drug dealer, and that other evidence tending to prove the same was therefore irrelevant. We reject this argument. This circuit has repeatedly held that the government is not required to accept such stipulations or admissions, and can instead prove the elements of the offense by introducing probative evidence. See, e.g., United States v. Chambers, 918 F.2d 1455, 1462 (9th Cir.1990); United States v. Cutler, 806 F.2d 933, 936 (9th Cir.1986); United States v. Campbell, 774 F.2d 354, 356 (9th Cir.1985); United States v. Gilman, 684 F.2d 616, 622 (9th Cir.1982). One of the essential elements of 18 U.S.C. Sec. 924(c)(1) is that the defendant must be engaged in a drug trafficking crime. Accordingly, the government was properly allowed to introduce evidence as proof that Appellant was a drug dealer. 10 Further, the evidence that Appellant wishes to exclude is not properly characterized as evidence of prior bad acts, excludable under Rule 404(b). It is, instead, evidence of his present and continuing involvement in drug trafficking. Moreover, the evidence clearly is admissible under Rule 404(b) to show intent, preparation, plan and knowledge. 11 Perhaps most importantly, any error in the admission of the evidence was harmless. The facts that Appellant argues were improperly discussed during cross examination were all already before the jury. Appellant discussed the underlying facts with Agent Martinez during the sting operation, and this conversation was captured on audiotape. Those audiotapes were admitted into evidence, and are not being contested. Moreover, even without this evidence the case against Appellant was overwhelming. Appellant was caught red-handed engaging in a drug deal with an undercover officer. The transaction was videotaped and audiotaped. He came to the meeting with a loaded gun hidden next to his seat. Considering all this evidence that was undisputedly properly before the jury, any improper references to his allegedly "past" drug dealing did not, more likely than not, affect the verdict. III. Jury Instructions 12 Appellant argues that the district court erred in not giving a jury instruction stating that specific intent was required under Section 924(c). The language of this statute requires that the firearm must be used or carried "in relation to" the drug trafficking crime. Appellant argues that because of this language, when a defendant posits an unrelated reason for having a weapon, the Government must prove specific intent. We review the district court's decision de novo. Caballero v. Concord, 956 F.2d 204, 206 (9th Cir.1992). 13 The jury instructions in this case accurately reflected the requirements of Section 924(c), and do not warrant reversal. In a recent case this Circuit stated that the "in relation to" requirement of Sec. 924(c) was properly explained when the jury instructions stated that the firearm must have been available "to provide protection to the defendant or intimidate others in connection with his or her involvement in drug trafficking." United States v. Lopez, 37 F.3d 565, 569 (9th Cir.1994) (emphasis added by appellate court.) The instructions in the present case placed an even higher burden on the government than "in connection with." The district court here repeatedly instructed the jury that the government must prove that the firearm "in some way facilitated (aided or assisted) the Defendant in the commission of the first element listed above." (Emphasis added). IV. Sufficiency of the Evidence 14 Lastly, Appellant argues that the evidence was insufficient to support the jury's verdict. He argues that at no time did he threaten Officer Martinez or brandish the weapon, and that there is no evidence that it emboldened him to commit the crime. Further, he argues that he had a perfectly legitimate reason for carrying the gun--a jealous husband had threatened him. We must uphold a conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Torres-Medina, 935 F.2d 1047, 1048 (9th Cir.1991). We hold that a rational trier of fact could have found that the essential elements of Section 924(c) were proven. 15 As Appellant admits, Section 924(c) does not require that the firearm be fired or brandished. It is enough that the gun embolden the defendant to commit the drug offense. See, e.g., United States v. Garcia, 997 F.2d 1273, 1284 (9th Cir.1993) (finding that possession of a loaded gun in a bedroom, near a closet with drugs, was enough to support the verdict); Torres-Medina, 935 F.2d at 1050 (finding the evidence sufficient even though the wheelchair-bound defendant could not personally have gained access to the firearm hidden in a crawlspace, because a rational trier of fact could have found that the defendant's confederates assisted him in retrieving the gun when necessary); United States v. Winslow, 962 F.2d 845, 852-53 (9th Cir.1992) (holding that two guns retrieved from the van defendants had driven while planning a bombing was sufficient evidence, because they were "easily accessible" to defendants). In light of these Ninth Circuit precedents, it is clear that the facts of this case suffice to support the verdict. A rational jury could indeed conclude that the gun was related to the drug offense, or that it emboldened Appellant to undertake the drug transaction. 16 Appellant also seems to argue that the fact that he posited an alternative explanation for the presence of the firearm requires us to overturn the jury's verdict. This is unconvincing. The jury is the trier of fact, and he was allowed to present his alternative explanation to them. Obviously they did not believe him. CONCLUSION 17 For the foregoing reasons, we AFFIRM the judgment of the district court. * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

FILED UNITED STATES COURT OF APPEALS SEP 24 2018 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS In re: RUBEN GONZALEZ CUEVAS, No. 16-60086 Debtor, BAP No. 15-1353 ______________________________ PHILIP EBERHARD KOEBEL, ORDER AMENDING MEMORANDUM DISPOSITION Appellant, AND DENYING PETITION FOR PANEL REHEARING v. STEVAN CHANDLER, Trustee of the Juliana Cuevas Living Trust and HEIDE KURTZ, Appellees. In re: PHILIP EBERHARD KOEBEL, No. 16-60091 ______________________________ BAP No. 16-1149 PHILIP EBERHARD KOEBEL, attorney disciplinary matter, Appellant. Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,* District Judge. * The Honorable Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation.  The memorandum disposition filed August 23, 2018 (Docket Entry No. 49), is amended as follows: 1. On page 6, replace the second sentence of the first complete paragraph: Moreover, Koebel was well aware that he had been sanctioned in the past for wrongfully removing unlawful detainer actions against his debtor clients to bankruptcy court.” with Moreover, Koebel was well aware that he had been warned in the past for wrongfully removing unlawful detainer actions against his debtor clients to the bankruptcy court, and had also previously been sanctioned for "egregious, vexatious, and bad faith conduct." 2. On page 6, replace the second sentence of the second complete paragraph: Koebel did not question the bankruptcy court's authority to impose sanctions against him and conceded certain points at the disciplinary hearing, namely that he may have left himself "defenseless" by neglecting to address the disciplinary order against him in a meaningful way. with Koebel did not question the bankruptcy court's authority to impose sanctions against him and conceded certain points to the BAP, namely that he may have left himself “defenseless” by neglecting to address the disciplinary order against him in a meaningful way. With the foregoing amendments to the memorandum disposition, Appellant’s petition for panel rehearing (Docket Entry No. 50) is DENIED. No further petitions for rehearing will be accepted in this case. 2  NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 24 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT In re: RUBEN GONZALEZ CUEVAS, No. 16-60086 Debtor, BAP No. 15-1353 ______________________________ PHILIP EBERHARD KOEBEL, MEMORANDUM* Appellant, v. STEVAN CHANDLER, Trustee of the Juliana Cuevas Living Trust and HEIDE KURTZ, Appellees. Appeal from the Ninth Circuit Bankruptcy Appellate Panel Kirscher, Kurtz, and Taylor, Bankruptcy Judges, Presiding In re: PHILIP EBERHARD KOEBEL, No. 16-60091 ______________________________ BAP No. 16-1149 PHILIP EBERHARD KOEBEL, attorney disciplinary matter, Appellant. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Appeal from the Ninth Circuit Bankruptcy Appellate Panel Kirscher, Pappas, and Faris, Bankruptcy Judges, Presiding Submitted August 8, 2018** Pasadena, California Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,*** District Judge. In this consolidated appeal, Philip E. Koebel (Koebel) appeals the Bankruptcy Appellate Panel’s (BAP) decision affirming a bankruptcy court’s orders suspending and imposing monetary sanctions against him. We have jurisdiction to review Koebel’s appeal pursuant to 28 U.S.C. § 158(d). We review the bankruptcy court’s interpretations of the Bankruptcy Code de novo and its findings of fact for clear error. United States v. Hatton (In re Hatton), 220 F.3d 1057, 1059 (9th Cir. 2000). We review the imposition of Rule 9011 sanctions and discipline for an abuse of discretion. See Price v. Lehtiner, 564 F.3d 1052, 1058 (9th Cir. 2009). We affirm. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation. 2  I. The BAP found that Koebel did not make any argument specifically and distinctly addressing the bankruptcy court's sanctions in his appeal brief, and any argument was therefore forfeited. The BAP also explained that Koebel did not address the disciplinary suspension during oral argument, and that his appeal to the BAP did not identify any error in the order suspending him. “Absent exceptional circumstances, issues not raised before the BAP are waived.” In re Eliapo, 468 F.3d 592, 603 (9th Cir. 2006) (internal quotation marks omitted). Koebel has not offered any exceptional circumstance that excuses his failure make these arguments to the BAP. Instead, he asserts that challenging the dismissal of his chapter 13 plan was sufficient. Accordingly, Koebel waived any argument challenging his suspension and the monetary sanctions. However, even if Koebel did not waive these arguments, they would fail. II. The bankruptcy court did not err by imposing monetary sanctions. Under Fed. R. Bankr. P. 9011, a bankruptcy court has authority to impose monetary sanctions, such as reasonable attorneys’ fees and costs, against an individual where the papers are frivolous or filed for an improper purpose, such as to harass, cause unnecessary delay, or a needless increase in litigation costs. See Valley Nat’l Bank v. Needler (In 3 re Grantham Bros.), 922 F.2d 1438, 1441 (9th Cir. 1991) (internal citations omitted).1 Koebel asserts that the bankruptcy court failed to consider evidence, such as the contents of Cuevas’s chapter 13 schedules and plan, which, he alleges, establishes that his bankruptcy filings were made in good faith. He maintains that post-chapter 7 tax debts in excess of $17,785 remained to be addressed as well as legal fees potentially owed to a lawyer who had defended Cuevas in an unlawful detainer action. Koebel made other dubious claims, such as his reliance on a speculative, lump-sum trust distribution in the amount $195,000 as funding for Cuevas’s chapter 13 plan, and Cuevas’s claimed homestead exemption. None of these arguments have merit. Cuevas’s chapter 13 case sought to establish a homestead exemption in spite of a previous ruling that Cuevas held no legal or equitable title or possessory interest in the subject home at the time his bankruptcy petitions were filed. Koebel’s reliance on In re Moffat, 107 B.R. 255, 259 n.7 (Bankr. C.D. Cal. 1989), and In re Harris, 101 B.R. 210, 214 (Bankr. E.D. Cal. 1989), overlooks the fact that in both of those cases the debtors had either a 1 Since Fed. R. Civ. P. 11 and Fed. R. Bankr. P. 9011 utilize essentially identical language, courts often rely on cases interpreting the former when construing the latter. See Grantham Bros., 922 F.2d at 1441. 4 current or prior legal interest in the properties for which they sought a homestead exemptions. Indeed, at the time of Cuevas’s chapter 13 filing, Koebel had no arguable basis for believing Cuevas possessed any legal interest in his mother’s home beyond his claim for distribution of trust funds. Also, Koebel has not refuted that Cuevas’s creditors were not pressing, and that Cuevas lacked the ability to reorganize his finances. Furthermore, the finding of an improper purpose is fully supported by the timing of the filing of the chapter 13 case. We find that the bankruptcy court’s bad faith finding was not illogical, implausible, or unsupported by the record and that the imposition of monetary sanctions did not violate Fed. R. Bankr. P. 9011. See Retz v. Samson (In re Retz), 606 F.3d 1189, 1196 (9th Cir. 2010). III. Nor did the bankruptcy disciplinary panel (BDP) err in suspending Koebel from filing any new case or proceeding in the bankruptcy court and placing him on probation for four and one-half years. Bankruptcy courts have inherent authority to regulate the practice of attorneys who appear before them, including disbarment or the suspension of attorneys from practice. Chambers v. NASCO, Inc., 501 U.S. 32, 43–45 (1991). An attorney subjected to discipline, however, is entitled to certain guarantees of procedural due process, namely notice and a hearing. See Rosenthal v. Justices of the Supreme Court of Cal., 910 F.2d 561, 564 (9th Cir. 1990). 5  Contrary to Koebel’s claims, the record shows that the order to show cause issued by the bankruptcy court notified Koebel of the conduct charged against him. Koebel was also served with notice of the bankruptcy court’s decision and recommendation, which was adopted by the BDP. Moreover, Koebel was well aware that he had been warned in the past for wrongfully removing unlawful detainer actions against his debtor clients to the bankruptcy court, and had also previously been sanctioned for “egregious, vexatious, and bad faith conduct.” The order to show cause not only identified the bankruptcy court’s disciplinary authority, but also the possibility of the imposition of sanctions against Koebel for his conduct. Koebel did not question the bankruptcy court’s authority to impose sanctions against him and conceded certain points to the BAP, namely that he may have left himself “defenseless” by neglecting to address the disciplinary order against him in a meaningful way. Therefore, Koebel’s due process rights were not violated when the BDP addressed other relevant conduct as well as his conduct during the hearing. Further, the BDP’s decision to discipline Koebel did not rest on evidence other than that presented to or found by the bankruptcy court through judicial notice or its records. The BDP made its extensive, detailed factual findings based upon Koebel’s sworn testimony concerning his handling of Cuevas’s case, declarations and exhibits submitted by him, and other evidence presented to the bankruptcy court. The BDP 6 found that the appellant had an extensive history—as well as an ongoing practice— of similar violations, consisting of bad faith, dilatory tactics, undertaken without any legitimate purpose other than to stall or maximize delay in litigation for his bankruptcy debtor clients. More importantly, Koebel does not dispute his motivation for filing the chapter 13 case—to stall or delay Cuevas’s eviction. Finally, the BDP considered Koebel’s mitigating circumstances, including his financial responsibilities. Nonetheless, it chose to impose the sanctions recommended by the bankruptcy court, referencing the criterion of the American Bar Association. Koebel does not maintain that the sanctions were disproportionate to the attorneys’ fees and costs incurred, or otherwise penal in nature. We conclude that the disciplinary sanctions imposed by the BDP were based on record evidence and are reasonable under the circumstances. Koebel has not shown that the bankruptcy court abused its discretion in sanctioning and disciplining him. The bankruptcy court’s orders are AFFIRMED. 7 

Eddy v. Sybert - Rec'd 11/06/02 Rule 23 order filed NO. 5-01-0235 November 19, 2002; Motion to publish granted IN THE January 3, 2003. APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ___________________________________________________________________________ APRIL D. EDDY, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Madison County. ) v. ) No. 98-L-900 ) FLOY E. SYBERT, ) ) Defendant ) ) (State Farm Insurance Company, ) Honorable ) George J. Moran, Intervenor-Appellee). ) Judge, presiding. ___________________________________________________________________________ JUSTICE GOLDENHERSH delivered the opinion of the court: April D. Eddy (plaintiff) appeals from an order of the circuit court of Madison County  ordering plaintiff to pay State Farm Insurance Company (State Farm) its entire subrogation lien less attorney fees of one-third for the payment of State Farm's medical-pay lien.  The issue on appeal is whether the trial court erred in awarding State Farm its full subrogation lien, minus a reduction under the fund doctrine, for medical payments made by State Farm under its contract of insurance with plaintiff.  We affirm and remand with directions. BACKGROUND Plaintiff and Floy E. Sybert (defendant), who takes no part in this appeal, were involved in an automobile accident on November 14, 1998.  Both plaintiff and defendant were insured by State Farm.  Defendant's policy with State Farm provided for maximum liability limits of $100,000 per person.  Plaintiff's policy with State Farm provided medical-pay coverage in the amount of $25,000.  The terms of the insurance policy issued by State Farm to plaintiff also contained a subrogation clause that allowed State Farm to obtain plaintiff's right to recover against a third party after State Farm paid plaintiff's medical bills.  The subrogation provision provided in pertinent part as follows: "b.  Under medical payments coverage: (1)  we are subrogated to the extent of our payment to the right of recovery the injured person has against any party liable for the bodily injury . *** (3)  if the person to or for whom we make payment recovers from any party liable for the bodily injury , that person shall hold in trust for us the proceeds of the recovery[] and reimburse us to the extent of our payment."  (Emphasis in original.)   Upon learning of the accident, State Farm sent plaintiff a letter dated November 18, 1998, in which it outlined the rights and obligations of both plaintiff and State Farm.  In the letter, State Farm specifically advised plaintiff that her policy provided for reasonable expenses for necessary medical treatment caused by the accident up to a limit of $25,000 per person and that "[t]he expenses are covered for three years from the date of the accident for bodily injury, provided the injury is discovered and treated within one year of the accident date."  State Farm also advised plaintiff, via the letter, of its subrogation rights and asserted, "We will not subrogate for the amount we have paid if your recovery from the responsible party plus our payments do not exceed your damages." State Farm asked plaintiff to sign a medical authorization form to allow State Farm to obtain her medical records.  Plaintiff declined to do so, opting instead to allow her attorney to obtain her medical records and bills and forward them to State Farm.  State Farm made payments on behalf of plaintiff and sent letters informing plaintiff of the amounts of medical bills paid on her behalf.  State Farm advised plaintiff that the medical payments made by State Farm on her behalf "are subject to [State Farm's] right to subrogation or reimbursement." On December 15, 1998, plaintiff filed a lawsuit against defendant.  On September 29, 1999, plaintiff's counsel made a settlement demand by letter for "payment in the range of $160,000."  The parties ultimately agreed to settle for the policy limits of $100,000.  On November 24, 1999, an order was entered, pursuant to a stipulation of the parties, dismissing the case with prejudice.  The order also stated that the trial court retained jurisdiction to resolve lien issues. The record shows that between December 1, 1998, and July 2, 1999, State Farm paid $19,079.82 of plaintiff's medical bills.  State Farm issued two separate checks to fulfill its payment obligations under the settlement.  One check was in the amount of $12,719.88, made payable to plaintiff, her attorneys, and State Farm.  State Farm refused to endorse the check unless plaintiff agreed to pay the $12,719.88 to State Farm pursuant to its right of subrogation. After the settlement, plaintiff discovered that a bill in the amount of $2,985 owed to Dr. Anderson had not been paid.  On February 4, 2000, plaintiff's attorney sent a letter to State Farm requesting the payment of Dr. Anderson's bill.  The letter also explained that the check for $12,719.88 had been placed in an escrow account.  Pursuant to the fund doctrine, plaintiff requested a reduction for future medical bills, estimated at $3,000, and offered State Farm $11,719.88 to settle the subrogation claim.  State Farm responded that it would not pay future medical bills and denied any responsibility for the unpaid $2,985 medical bill on the basis that it had not been made aware of that bill until six months after the case was settled. On April 5, 2000, plaintiff filed a motion to adjudicate lien, in which she asked the trial court to enter an order "adjudicating the amount of any subrogation claim[,] including a deduction for attorneys fees and unpaid medical bills pursuant to the 'fund doctrine.' "  On October 12, 2000, State Farm filed a response to plaintiff's motion to adjudicate lien.  State Farm claimed a lien for medical payments made under plaintiff's automobile policy for $19,079.88 and agreed to allow plaintiff a reduction of one-third of that total under the fund doctrine pursuant to Baier v. State Farm Insurance Co. , 66 Ill. 2d 119, 361 N.E.2d 1100 (1977).  However, State Farm claimed that it had no duty to pay future medical bills or a bill submitted after a claim was settled, "because by settling[,] [p]laintiff destroys any right of subrogation that State Farm may have."  State Farm claimed that it did not have Dr. Anderson's bill until February 4, 2000.   In response, plaintiff submitted Dr. Anderson's affidavit, in which he claimed: "[O]n or about November 19, 1998, Dr. Peter J. Anderson issued a physician's lien to State Farm which notified State Farm Insurance that Illinois SW Orthopedics, Ltd.[,] asserted a lien for treatment, care, physician's services[,] and maintenance upon any and all claims and causes of actions which April Eddy may assert against any persons for damages on account of personal injuries alleged to have been received in an accident that occurred on or about 11/14/98.  The physician's lien letter notified State Farm that the amount of lien was the balance at the time of settlement."  Dr. Anderson attached a copy of the lien letter, as well as the receipt for the lien letter signed by an agent for State Farm.  Dr. Anderson further set forth in the affidavit that a member of his staff called State Farm on May 24, 1999, and informed State Farm that medical charges for the services of Dr. Anderson remained unpaid and that, prior to the telephone call, the bills had been sent to State Farm.  Plaintiff asserted that a balance of $2,985 remained.   State Farm introduced evidence that it paid $19,079.82 in medical bills for plaintiff under the medical-pay provision in her policy.  On January 4, 2001, the trial court entered an order awarding State Farm its entire subrogation lien amount of $19,079.82, less one-third for attorney fees under the fund doctrine.  Accordingly, plaintiff was ordered to pay State Farm $12,719.88.  Plaintiff then filed a motion to reconsider and/or clarify its order, which the trial court denied on March 21, 2001.  The trial court's order contained no language concerning the unpaid medical bill submitted by Dr. Anderson.  Plaintiff now appeals. ANALYSIS The issue on appeal is whether the trial court erred in awarding State Farm its full subrogation lien, minus a reduction under the fund doctrine, for medical payments made by State Farm under its contract of insurance with plaintiff.  Plaintiff contends that the contract language is ambiguous and that any ambiguity must be resolved in her favor.  She further contends that she was not fully compensated for her damages and that, thus, State Farm should not be allowed to recoup its medical payments from the settlement.  Plaintiff also contends that the trial court failed to consider the equities involved in this case.  We disagree. Subrogation rights originated in equity but now arise by both statute and contract.   In re Estate of Scott , 208 Ill. App. 3d 846, 848, 567 N.E.2d 605, 606 (1991).  Where the right is created by an enforceable subrogation clause in a contract, contract terms, not the common law or equitable principles, apply.   Capitol Indemnity Corp. v. Strike Zone, S.S.B. & B. Corp. , 269 Ill. App. 3d 594, 596, 646 N.E.2d 310, 312 (1995).  The construction of an insurance policy is a question of law subject to de novo review.   State Farm Mutual Automobile Insurance Co. v. Villicana , 181 Ill. 2d 436, 441, 692 N.E.2d 1196, 1199 (1998).  Ambiguous language in an insurance policy should be construed against the drafter.   Katz v. American Family Insurance Co. , 163 Ill. App. 3d 549, 552, 516 N.E.2d 795, 796 (1987).  Where the terms in a policy are clear and unambiguous, they must be given their plain and ordinary meaning.   American States Insurance Co. v. Koloms , 177 Ill. 2d 473, 479, 687 N.E.2d 72, 75 (1997).   In the instant case, the language in plaintiff's contract clearly states that if plaintiff recovers from any party liable for bodily injury, State Farm obtains plaintiff's right to recover against that third party.  Here, it is the unambiguous contract language that controls, not the language of the letter or equitable considerations.  Nevertheless, plaintiff insists that the letter State Farm sent to plaintiff concerning medical subrogation should be construed as saying that if the plaintiff did not recover all her damages , State Farm would not pursue its subrogation within the context of the medical-pay provisions.  Even assuming, arguendo , that the letter controls, we disagree with plaintiff's construction of the language contained in the letter.  Our review of that language indicates that the letter informs plaintiff that if she did not recover her medical damages , subrogation would not be pursued.  State Farm would not be concerned about a recovery above and beyond its own limits of liability under plaintiff's policy.  Here, plaintiff settled for defendant's policy limits of $100,000, well in excess of the $19,079.82 paid by State Farm under the medical-pay provision of its contract with plaintiff. Plaintiff also contends that she was not made whole by the underlying settlement and, thus, that there should be no right to subrogation.  Plaintiff relies on cases from foreign jurisdictions in support of this argument.  Plaintiff has not cited any Illinois cases, nor have we found any, that hold that there is no right to subrogation unless the plaintiff was made whole by the underlying settlement.  Such a ruling would run contrary to our state's policy encouraging the settlement of cases.  We find this case similar to Gibson v. Country Mutual Insurance Co. , 193 Ill. App. 3d 87, 549 N.E.2d 23 (1990).  Plaintiff's attempt to distinguish Gibson is unpersuasive. In Gibson , like the instant case, the plaintiff recovered medical payments under her own insurance policy and then negotiated a settlement with the driver who was at fault and insured by the same insurance company as the plaintiff.  The plaintiff attempted to prevent her insurance company from enforcing subrogation and reimbursement provisions in her policy to recover the medical payments it paid her from the settlement she received from the at-fault driver.  The plaintiff argued that the enforcement of the subrogation and reimbursement provisions in her policy violated public policy because she had not been fully compensated for her damages.   Gibson , 193 Ill. App. 3d at 89-91, 549 N.E.2d at 25-26.  The Gibson court rejected this argument and allowed the insurance company to recover the medical payments from the plaintiff's settlement with the at-fault driver.   Gibson , 193 Ill. App. 3d at 90-92, 549 N.E.2d at 25-26.  Thus, Gibson declined to follow the made-whole doctrine that has been adopted by other jurisdictions. Plaintiff also argues that even if State Farm has a valid right of subrogation, it cannot exercise that right because State Farm failed to pay all of plaintiff's medical bills.  We recognize that an insurance company may not exercise its right of subrogation until it has paid the insured's damages under the policy giving rise to the subrogation rights ( Benge v. State Farm Mutual Automobile Insurance Co. , 297 Ill. App. 3d 1062, 1072, 697 N.E.2d 914, 921 (1998)); however, the facts in the instant case do not trigger that rule.  Here, State Farm did not refuse to pay all of plaintiff's medical bills.  The only bill that was not paid was a $2,985 bill submitted by Dr. Anderson.  State Farm insists that it was not made aware of this bill until six months after the case settled and that, therefore, it was under no obligation to pay the bill.  Plaintiff, on the other hand, insists that State Farm should have been aware of Dr. Anderson's bill and was obligated to pay it under the medical-pay provision of its policy with plaintiff. Dr. Anderson's affidavit reveals that State Farm was put on notice of the bill after Dr. Anderson's office sent State Farm a notice of his lien within four days of the accident and later called State Farm about the outstanding bill.  The trial court's order fails to mention this unpaid medical bill.  We note that even after paying this bill, State Farm will not have paid in excess of plaintiff's $25,000 limit of liability under the medical-pay provision of her policy.  Therefore, we find that State Farm is liable for the bill under plaintiff's medical-pay provision but that it can subrogate this claim under the liability coverage in defendant's policy.  State Farm is entitled to reimbursement from the proceeds of the settlement with defendant, minus a reduction of one-third under the fund doctrine.  Plaintiff, however, fails to convince us that State Farm was required to pay future medical bills.   For the foregoing reasons, we hereby affirm the order of the circuit court of Madison County ordering plaintiff to pay State Farm its full subrogation lien, minus a one-third reduction under the fund doctrine.  Additionally, pursuant to our powers under Supreme Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)), we hereby amend the judgment to order State Farm to pay Dr. Anderson's medical bill of $2,985 under the medical-pay provision of plaintiff's policy, and we further order plaintiff to reimburse State Farm for that bill, less one-third under the fund doctrine in the amount of $995.33. Affirmed as modified. HOPKINS, P.J., and KUEHN, J., concur.                                      NO. 5-01-0235 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ___________________________________________________________________________________ APRIL D. EDDY, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Madison County. ) v. ) No. 98-L-900 ) FLOY E. SYBERT, ) ) Defendant ) ) (State Farm Insurance Company, ) Honorable ) George J. Moran, Intervenor-Appellee). ) Judge, presiding. ___________________________________________________________________________________ Rule 23 order filed : November 19, 2002 Motion to Publish Granted : January 3, 2003 Opinion Filed : January 3, 2003 ___________________________________________________________________________________ Justices : Honorable Richard P. Goldenhersh, J. Honorable Terrence J. Hopkins, P.J., and Honorable Clyde L. Kuehn, J., Concur ___________________________________________________________________________________ Attorney Brian M. Wendler, Wendler & Ezra, P.C., 4955 South State Route 159, Glen for Carbon, IL 62034 Appellant ___________________________________________________________________________________ Attorney Jane Unsell, Unsell, Schattnik & Juen, 55 South 9th Street, East Alton, IL 62024 for Appellee ___________________________________________________________________________________

Opinions of the United 2001 Decisions States Court of Appeals for the Third Circuit 4-10-2001 Westmoreland Human v. Walsh Precedential or Non-Precedential: Docket 00-3070 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001 Recommended Citation "Westmoreland Human v. Walsh" (2001). 2001 Decisions. Paper 71. http://digitalcommons.law.villanova.edu/thirdcircuit_2001/71 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. Filed April 10, 2001 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 00-3070 WESTMORELAND HUMAN OPPORTUNITIES, INC., Appellant v. JAMES R. WALSH, Trustee of the Bankruptcy Estate of Life Service Systems, Inc.; LIFE SERVICE SYSTEMS, INC. On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civ. No. 99-cv-00110) District Judge: Honorable D. Brooks Smith Argued: October 25, 2000 Before: BECKER, Chief Judge, SCIRICA and FUENTES, Circuit Judges. (Filed April 10, 2001) DANIEL B. PAGLIARI, ESQUIRE (ARGUED) Pagletta & Pagliari, LLP 2773 Leechburg Road Lower Burrell, PA 15068-3138 Counsel for Appellant JAMES R. WALSH, ESQUIRE (ARGUED) Spence, Custer, Sayler, Wolfe, and Rose 400 U.S. Bank Building P.O. Box 280 Johnstown, PA 15907 Counsel for Appellee DAVID W. OGDEN, ESQUIRE Assistant Attorney General United States Department of Justice P.O. Box 878 Ben Franklin Station Washington, DC 20044 HARRY LITMAN, ESQUIRE United States Attorney 633 U.S. Post Office & Courthouse Pittsburgh, PA 15219 WILLIAM KANTER, ESQUIRE H. TYOMAS BYRON, III, ESQUIRE Attorneys, Appellate Staff Civil Division, PHB Room 9102 Department of Justice 601 D Street, N.W. Washington, DC 20530-0001 CAROLE W. WILSON, ESQUIRE Associate General Counsel ANGELO AIOSA, ESQUIRE Assistant General Counsel BATINA R. WILLS, ESQUIRE Trial Attorney Department of Housing and Urban Development 451 7th Street, S.W., Room 10258 Washington, DC 20410 Counsel for United States of America as Amicus Curiae 2 OPINION OF THE COURT BECKER, Chief Judge. This bankruptcy appeal requires us to define the boundaries of the term "property of the estate," as used in S 541 of Title 11 of the United States Code (Bankruptcy Code), in the context of a federal grant relationship. The appeal arises out of an adversary action instituted by the trustee of debtor Life Service Systems, Inc. (LSS) against defendant Westmoreland Human Opportunities, Inc. (WHO), charging the latter with a breach of itsfiduciary duty to LSS's Unsecured Creditors Committee (Committee). Both LSS and WHO are non-profit organizations which provide community services to residents of Westmoreland County in western Pennsylvania. In 1995, LSS was selected by the Department of Housing and Urban Development (HUD) to receive grant moneys under the federal Supportive Housing Program; LSS and HUD executed a Supportive Housing Grant Agreement (Grant Agreement) as part of this grantor/grantee arrangement. Shortly thereafter, LSS experienced significant financial difficulties, ultimatelyfiling a Chapter 11 bankruptcy petition. Because WHO was one of LSS's largest creditors, it accepted an invitation to join the Unsecured Creditors Committee. During its tenure on the Committee, WHO, without notifying either its fellow Committee members or the Bankruptcy Court, assumed LSS's position as r ecipient of Supportive Housing Program funds, executing a Supportive Housing Grant Agreement Amendment (Grant Agr eement Amendment) with HUD. In the adversary action at issue on this appeal, LSS's trustee in bankruptcy alleged that WHO, by assuming LSS's interest in the grant r elationship in this manner, breached its fiduciary duty to Committee constituents. WHO defended on the ground that LSS's interest in the Supportive Housing Program grant relationship was not property of LSS's bankruptcy estate and thus did not trigger a fiduciary duty on WHO's part. The Bankruptcy Court rejected WHO's defense, holding that 3 LSS's interest in the grant relationship constituted part of LSS's bankruptcy estate and that WHO had ther efore violated its fiduciary obligations. It enter ed judgment against WHO in the sum of $135,653. On appeal, the District Court affirmed. Against this background, WHO's appeal pr esents the question whether a debtor non-profit community service organization's interest in a HUD-type federal grant relationship constitutes property of the debtor's estate. Disagreeing with the Bankruptcy and District Courts, we hold that LSS's interest in the grant r elationship with HUD is excluded from the definition of "pr operty of the estate" set forth in S 541 of the Bankruptcy Code. Despite S 541's considerable breadth, HUD's singular supervisory interest in ensuring the effective administration of the Supportive Housing Program, evidenced by the pervasive, strict, and minute oversight over the grant relationship imposed by the Program's relevant statutory and r egulatory provisions, suffices to exclude LSS's interest in the Supportive Housing Program grant relationship from S 541's property definition. The District Court, in conducting its S 541 pr operty analysis, failed to account for HUD's weighty inter est. The court mistakenly viewed the provisions of the Grant Agreement as the exclusive calipers for measuring the rights yielded to LSS by virtue of the grant r elationship, and therefore neglected to consider the substantial limitations imposed on those rights by the other statutory and regulatory components of the Supportive Housing Program scheme. As a result, we conclude that the District Court erred in deciding that LSS's inter est in the grant relationship constituted property of its bankruptcy estate, and we therefore set aside the court's judgment. However, our conclusion that LSS's inter est does not qualify as property for purposes of the Bankruptcy Code does not dispose of this appeal. Left unanswer ed is a question not considered by either the Bankruptcy or the District Court: whether, despite the fact that LSS's interest in the grant relationship with HUD was not pr operty of its bankruptcy estate, WHO's assumption of LSS's inter est without notice to Committee members or to the Bankruptcy Court violated the fiduciary duty WHO owed to Committee 4 constituents. The Bankruptcy and District Courts, as well as the parties themselves, all appear to have assumed that resolution of the bankruptcy property question would also dispose of the breach of fiduciary duty issue. Because neither the District nor the Bankruptcy Court addr essed the issue that our disposition of the case now raises, relying instead on the erroneous conclusion that LSS's interest qualified as property for purposes of the Bankruptcy Code, and because the parties failed to adequately brief and argue the question to us, we remand the case to the District Court, which may in tur n refer it to the Bankruptcy Court, for resolution of the issue. I. Facts and Procedural History A. In 1995, LSS, a private non-profit community service organization operating in western Pennsylvania, undertook a project to provide supportive housing assistance to homeless families in Westmoreland County. LSS planned to purchase and refurbish two small apartment buildings, which it would then use to provide those families with transitional housing. As the name suggests, transitional housing is not intended to furnish homeless families with a permanent residence, but rather is designed to supply recipients with temporary shelter while they seek permanent housing and learn basic life skills necessary for independent living.1 LSS's pr oject was to house some twenty families with children, and would have provided supportive services, including job training and placement, day care, adult education, and instruction in daily life skills such as nutrition and budgeting. As its primary source of funding for the pr oject, LSS turned to HUD, seeking moneys from HUD's Supportive Housing Program. The purpose of this Pr ogram "is to _________________________________________________________________ 1. Section 11384(b) of the Stewart B. McKinney Homeless Assistance Act defines "transitional housing" as "housing the purpose of which is to facilitate the movement of homeless individuals and families to permanent housing within 24 months." 42 U.S.C. S 11384(b). 5 promote the development of supportive housing and supportive services, including innovative appr oaches to assist homeless persons in the transition fr om homelessness, and to promote the provision of supportive housing to homeless persons to enable them to live as independently as possible." 42 U.S.C. S 11381. The Supportive Housing Program facilitates this public purpose by furnishing federal moneys to qualified HUD-selected applicants, who are to use the funds for several types of housing-related activities, including acquisition and/or rehabilitation of existing structures, construction of new structures, leasing of existing structur es, and provision of supportive services for transitional housing r esidents. See generally 42 U.S.C. S 11383(a); 24 C.F .R. S 583.100(a) (2000). Recipients of Supportive Housing Program grants are selected through a nationwide competitive pr ocess. See 42 U.S.C. S 11386(b). As part of this process, LSS was required to submit to HUD a detailed application and pr oject proposal, which furnished information about: (1) the housing project itself, such as the project location, the number of homeless families that LSS would accommodate at that location, and the types of supportive services that would be offered at the site; (2) LSS's past experience in providing housing assistance, including pr evious housing programs it had operated and prior HUD grants it had received; and (3) the budget for the pr oposed project. In its application, LSS requested $1,326,965 in Supportive Housing Program funds to cover the cost of acquiring and rehabilitating the two apartment buildings, the operating expenses for those premises, the cost of the supportive services that would be offered at those sites, and a five percent administrative fee for the expenses LSS would incur in administering the Supportive Housing Program grant. On February 5, 1996, LSS received final appr oval from HUD for a transitional housing project to be located at 49 Division Street in Greensburg, W estmoreland County. Several days later, LSS and HUD executed the Grant Agreement, which obligated HUD to provide $1,326,965 to the 49 Division Street project, and committed LSS to administer those funds at that project site. The Grant 6 Agreement, which was subject to renewal, carried a three- year term and was scheduled to expire in 1999. Shortly after the execution of the Grant Agreement, LSS purchased the Division Street property and began r enovations. B. Several months after entering into the Grant Agr eement with HUD, LSS began experiencing significant financial and administrative problems. LSS attempted to r esolve these difficulties by seeking consulting relationships with other non-profit entities. First, in September 1996, LSS entered into a consulting agreement with WHO, pursuant to which WHO was to furnish management assistance to LSS. However, this affiliation ended after a month when WHO elected to terminate the agreement upon discovering that LSS's financial troubles were mor e serious than originally anticipated. Subsequently, on November 9, 1996, LSS retained Adelphoi, Inc., another non-pr ofit organization operating in Westmoreland County. Pursuant to the management agreement entered into with Adelphoi, all of LSS's board members resigned and wer e replaced by new directors selected by Adelphoi. Two months after Adelphoi took over LSS's management, LSS filed a voluntary Chapter 11 petition. At the time of the petition, LSS had drawn down approximately $288,800 in federal Supportive Housing Program moneys. LSS's interest in the grant relationship with HUD was not itself listed on the schedule of assets LSS submitted to the Bankruptcy Court. An Unsecured Creditors Committee was formed, and WHO, which had a claim against LSS for compensation based on the brief period it spent providing consulting services to LSS, accepted an invitation to sit on the Committee. WHO resigned from the Unsecur ed Creditors Committee in September 1997 due to accusations of a conflict of interest. However, WHO's assumption of LSS's Supportive Housing Program grant occurr ed prior to the date of this resignation. Less than two weeks after LSS filed its Chapter 11 petition, HUD declared LSS in default of the Supportive Housing Program grant. By letter dated January 29, 1997, 7 HUD notified LSS that it could no longer r eceive Supportive Housing Program disbursements. HUD also infor med LSS that its grant would be reactivated should LSS develop a "workable plan" acceptable to HUD. Further more, HUD warned LSS that if a suitable plan was not forthcoming within 30 days, HUD would exercise its power to either cancel the remainder of the grant, or select a successor to administer the program. Although LSS did not r espond within the requested 30-day period, HUD did not in fact terminate the grant or replace LSS as grantee; rather, on March 4, 1997, HUD sent a follow-up communication to LSS, once again requesting a "work-out plan for the continued implementation of the [49 Division Str eet transitional housing] project." Ultimately, LSS responded by proposing to HUD that Adelphoi acquire ownership of the Division Str eet property and that WHO take over administration of the transitional housing project located at that site. On May 28, 1997, WHO was substituted as recipient of LSS's Supportive Housing Program grant, and WHO and HUD executed the Grant Agreement Amendment, which identified WHO as the project sponsor and as the "Successor to Life Service Systems, Inc." The Amendment listed both 49 Division Street and a second site at 203 South Maple A venue as the relevant project locations for the transitional housing project. Apparently, WHO did not fur nish any consideration to LSS's estate in exchange for assuming the Grant Agreement, and neither WHO nor LSS provided notice of the assumption to the Unsecured Creditors Committee or to the Bankruptcy Court. After assuming LSS's Supportive Housing Program grant, WHO did not in fact continue the transitional housing project at the Division Street location. Shortly after WHO and HUD executed the Grant Agreement Amendment, LSS, following its proposal that Adelphoi acquir e the transitional housing project's real property, petitioned the Bankruptcy Court to sell the Division Street property to Westmoreland CHODO, a non-profit entity controlled by Adelphoi (and apparently unaffiliated with WHO). With approval of the Bankruptcy Court, the Division Street r eal estate was put up for auction. However, Westmor eland CHODO was outbid 8 by a third party purchaser, and thus did not acquire the Division Street real estate. WHO, appar ently uninterested in dealing with the third party buyer, discontinued the transitional housing project at the Division Street site and elected to carry on the program at a dif ferent location. C. Following the property sale, the Bankruptcy Court appointed James Walsh as LSS's Chapter 11 Bankruptcy Trustee, at the request of the Unsecur ed Creditors Committee. On February 16, 1998, the Trustee instituted an adversary action against WHO in the Bankruptcy Court, alleging that WHO, as a member of the Unsecur ed Creditors Committee, owed a fiduciary duty to the other members of the Committee which it breached by taking over LSS's status as a recipient of federal Supportive Housing Program moneys without furnishing notice to other unsecured creditors or obtaining prior court appr oval.2 In its defense, WHO argued that it breached no fiduciary duty because LSS's interest in the Supportive Housing Pr ogram grant relationship with HUD was never property of LSS's bankruptcy estate within the meaning of S 541 of the Bankruptcy Code. The Bankruptcy Court held in the Trustee's favor, concluding that LSS's interest in the grant r elationship with HUD constituted property of LSS's bankruptcy estate. Furthermore, the court determined that WHO did in fact breach its fiduciary duty to fellow Committee members, and awarded LSS's estate $135,653 in monetary r elief.3 WHO (Text continued on page 11) _________________________________________________________________ 2. LSS's Bankruptcy Trustee also instituted adversary actions against Adelphoi and LSS's board of directors (elected by Adelphoi), claiming, inter alia, a breach of fiduciary duty in connection with WHO's succession to the Supportive Housing Program grant. These actions were settled before trial. 3. As the remedy for WHO's alleged br each of fiduciary duty, LSS's Trustee did not seek to have the Bankruptcy Court void and set aside WHO's assumption of the Supportive Housing Pr ogram grant; rather, the Trustee only requested monetary damages. The record does not make the basis for this monetary relief entir ely clear. The following is our rendering. 9 The damage request consisted of three components. First, the Trustee sought compensation for claims brought by five individuals relocated by LSS as part of its acquisition and rehabilitation of the Division Street property. The Supportive Housing Program r equires a grant recipient to provide compensation to individuals displaced as a direct result of the recipient's supportive housing project. See 24 C.F.R. S 583.310 (2000). Although the record is silent on this issue, we can infer from the fact that these five individuals were listed among LSS's general unsecured creditors that LSS had failed to provide the full measure of assistance required by the Supportive Housing Pr ogram. Second, LSS's Trustee sought recovery for amounts owed to matching fund grantors Westmoreland County Housing Authority, United Way, and Richard K. Mellon Foundation, also listed among LSS's general unsecured creditors. Before a grantee can receive federal funds under the Supportive Housing Program for the acquisition or rehabilitation of existing structures, or for new construction, it must obtain matching funds from non-HUD sources equal to the amount of federal funds it is requesting for those activities. See 42 U.S.C. S 11386(e); 24 C.F.R. S 583.145 (2000). To satisfy this obligation, LSS contributed its own moneys, and secured matching funds from the Westmoreland County Housing Authority, the United Way, and the Mellon Foundation. Although the record on appeal does not contain the terms of the agreements entered into by LSS and the matching fund grantors, the grantors apparently conditioned their pr ovision of matching funds on the continued use of those funds for a transitional housing project at the 49 Division Street location. According to the Bankruptcy Court, when WHO, after succeeding to LSS's interest in the Supportive Housing Program grant relationship with HUD, decided not to continue the project at the 49 Division Street site, the matching fund grantors acquired a claim against LSS's estate for a return of the balance of their donated moneys. Finally, LSS's Trustee requested monetary relief in the amount of the Supportive Housing grant moneys allocated to the grantee's administrative expenses. According to the Bankruptcy Court, WHO benefitted by receiving this amount as part of its succession to LSS's Supportive Housing Program grant because WHO was able to use those moneys to pay part of its employee salaries without having to demonstrate that those employees worked exclusively on the administration of the transitional housing pr ogram. The Bankruptcy Court's $135,653 award cover ed only the latter two components of the Trustee's monetary r elief claim. Because WHO stipulated at trial that it had assumed LSS's obligation to provide 10 appealed to the District Court for the Wester n District of Pennsylvania, contending that the Bankruptcy Court had erroneously concluded that LSS's interest in the Supportive Housing Program grant relationship with HUD qualified as property of LSS's bankruptcy estate. The District Court, however, affirmed the Bankruptcy Court's judgment, and WHO timely appealed to this court.4 In addition to the briefs of the parties, we requested (and r eceived) an amicus curiae brief from the Bankruptcy Section and the Commercial Litigation Department of the Civil Division of the Department of Justice stating their position on the central issues. We also gave the parties an opportunity to reply to this amicus brief. II. Property of the Estate The filing of a voluntary petition in bankruptcy court commences a bankruptcy case and creates a bankruptcy estate comprised of the debtor's property as of the commencement of the case. See 11 U.S.C.SS 301, 541. Section 541(a)(1) of the Bankruptcy Code defines"property of the estate" as including "all legal or equitable interests of the debtor in property as of the commencement of the case." Id. S 541(a)(1). As the Supr eme Court observed in United States v. Whiting Pools, Inc., 462 U.S. 198 (1983), S 541(a)'s legislative history demonstrates that the language of this provision was intended to sweep br oadly to include "all kinds of property, including tangible or intangible property, causes of action . . . and all other forms of property currently specified in section 70a of the Bankruptcy Act." Id. at 205 n.9 (quoting H.R. Rep. No. 95- 595, at 367 (1977), reprinted in 1978 U.S.C.C.A.N. 5963); see also In re O'Dowd, 233 F.3d 197, 202 (3d Cir. 2000). In view of this definition, we must determine whether LSS's interest in the grant relationship constituted a "legal _________________________________________________________________ relocation assistance to the five displaced individuals (the first component), the Bankruptcy Court held that LSS's bankruptcy estate could not recover that amount. 4. The Bankruptcy Court exercised jurisdiction pursuant to 28 U.S.C. S 157, the District Court had jurisdiction under 28 U.S.C. S 158(a)(1), and we have jurisdiction pursuant to 28 U.S.C. S 158(d). 11 or equitable interest[ ]" that, under the terms of S 541(a)(1), falls within S 541's property definition. Because a district court's conclusion as to whether an item constitutes "property of the estate" for purposes ofS 541 raises a question of law, our review is plenary. See In re Blatstein, 192 F.3d 88, 94 (3d Cir. 1999). W e first identify the specific interests regarded by the District Court as constituting property of LSS's bankruptcy estate. We next examine the ways in which a federal agency's supervisory inter est in a grant relationship can alter the dynamics ofS 541's property calculus. We then focus on the District Court's principal error in this case, i.e., its failur e entirely to account for HUD's weighty federal interest in the Supportive Housing Program, and conclude that, had the court given proper weight to HUD's strong interest, LSS's interest in the grant relationship would have been excluded from LSS's estate for bankruptcy purposes. Finally, we note that considerations of bankruptcy policy militate in favor of excluding LSS's interest from S 541's property definition. In the course of this discussion, we distinguish LSS's Trustee's attempts to rely on case law holding that government-issued licenses, in general, qualify as property of the estate under the Bankruptcy Code. Our last task will then be to delineate the scope of our holding in the instant case. A. Analysis under S 541's property definition must begin by focusing directly on the specific inter ests claimed to constitute the debtor's property. In the case before us, the District Court characterized LSS's interest in the grant relationship as a set of contractual rights arising out of the Grant Agreement executed between LSS and HUD in 1995, ultimately deciding that these contractual rights were property of LSS's bankruptcy estate. In r eaching this conclusion, the District Court began by turning to relevant Pennsylvania state law and determining that, under that case law, contractual rights are classified as property interests. See, e.g., Klingner v. Pocono Int'l Raceway, Inc., 433 A.2d 1357, 1361 (Pa. Super. Ct. 1981) (noting that contractual rights are personal property under Pennsylvania law). 12 In terms of our analysis, we do not question the District Court's reading of Pennsylvania law, and assume that ordinary contract rights would qualify as such property interests under that state law; it is well-established that federal courts typically must look to state law in ascertaining the existence and scope of the debtor's"legal or equitable interests" for purposes ofS 541(a)(1). See Butner v. United States, 440 U.S. 48, 54 (1979) ("Congress has generally left the determination of pr operty rights in the assets of a bankrupt's estate to state law.") (footnote omitted); O'Dowd, 233 F.3d at 202 ("While federal law defines what types of property comprise the estate, state law generally determines what interest, if any, a debtor has in property."). It is also settled that the expansive nature of S 541's property definition encompasses rights and interests arising from ordinary contractual r elationships. See 5 Collier on Bankruptcy P 541.08[4], at 541-49 (15th ed. rev., King et al. eds., 1996); see also In re Minoco Group of Cos., Ltd., 799 F.2d 517, 519 (9th Cir. 1986) (holding that insurance contracts constitute "property of the estate" for purposes of S 541). Attempting to delineate the scope of LSS's inter est in the grant relationship, the District Court examined the provisions of the Grant Agreement executed in 1995 between LSS and HUD, and identified three sets of contractual rights that it believed arose out of the relationship: (1) the debtor LSS's right to r eceive payment from HUD for authorized expenditures that LSS incurred while administering its Supportive Housing Pr ogram project; (2) the debtor's right to compel HUD to make payments in connection with LSS's administration of the Supportive Housing Program; and (3) the debtor's right to assign its interest in the Supportive Housing Grant, subject to HUD's prior written approval. The court then held that LSS's interest in the grant relationship, evidenced by these three sets of rights, qualified as pr operty of LSS's bankruptcy estate within the meaning of S 541. We conclude that this decision was incorrect. B. At bottom, the problem with the District Court's S 541 property analysis lies in its failure to take into account 13 HUD's strong federal interest in supervising the efficient and effective administration of Supportive Housing Program grant funds by intermediaries such as LSS, designed to ensure that the Program's ultimate beneficiaries (i.e., homeless individuals) receive the full measur e of federal assistance afforded to them under the ter ms of the Program. As will be seen in detail below, HUD's singular interest in preserving such a supervisory role--evidenced by the strict and pervasive oversight imposed by the Supportive Housing Program scheme on the grant relationship--can alter the dynamics of S 541's property calculus, resulting in the exclusion of the grantee's interest from its bankruptcy estate. Our analysis proceeds in several steps. W e first explain that a federal agency's supervisory interest over the administration of a grant program can r esult in the exclusion of a grantee's interest in the grant relationship from S 541's property definition if the interest is sufficiently weighty. We then present a method for assessing when an agency's interest rises to such a level. Finally, we focus on the facts of the case before us and on the specific provisions of the Supportive Housing Pr ogram, explaining the two related ways in which the District Court's failure to account for HUD's supervisory interest manifested itself: (1) the court neglected to consider the pervasive r estrictions imposed on a Program grantee's rights by the substantive provisions of two major components of the Supportive Housing Program grant scheme; and (2) in light of these limitations, the court construed the scope of the LSS's rights under the grant arrangement too expansively. 1. A federal agency like HUD clearly has a substantial supervisory interest in preserving the coherence and integrity of the federal grant scheme it is char ged with administering, and in ensuring that federal grant moneys disbursed pursuant to that scheme are dispensed by intermediaries in an efficient and ef fective manner to the ultimate beneficiaries of the grant. While the Bankruptcy Code's property definition is certainly expansive, it is not limitless, and, as we will demonstrate, a federal agency's 14 strong supervisory interest in the administration of a grant program can play a significant role in determining whether the interests created by a federal grant program fall within S 541's definition of "property of the estate." We recognize, of course, that each time a federal agency executes a contractual agreement with a private party, or enters into an arrangement with an entity in or der to furnish assistance to the public, a federal interest is arguably implicated. We therefor e must take care to distinguish those situations in which a federal grantor agency's supervisory interest is sufficiently weighty to exclude the grantee's interest in the grant r elationship from S 541's property definition from those situations in which it is not. As we see it, the strength of an agency's supervisory interest can best be gauged by examining the substantive provisions of the grant scheme established by applicable federal statutes and regulations. Cf. In r e Joliet-Will County Cmty. Action Agency, 847 F.2d 430, 431-32 (7th Cir. 1988) (analyzing the provisions of a federal "foster grandparents" grant program administered by ACTION as part of the S 541 bankruptcy property inquiry). To be sure, if a provision of a federal grant program specifically authorizes federal grant moneys to be used to pay a debtor grantee's creditors, it will be difficult for us to conclude that the federal agency's interest is sufficiently weighty to exclude the debtor's interest fr om S 541's property definition. Cf. id. at 432. But the Supportive Housing Program involved in the case befor e us contains no such authorization, and thus our analysis of the nature of HUD's supervisory interest, as manifested in the substantive provisions of the Program, must be more searching. The strength of an agency's supervisory inter est can best be measured by the level of agency oversight over the grant relationship preserved in the provisions of the federal grant program. A grant framework clearly evidences a desire to sustain the federal agency's strong supervisory interest over that relationship when it: (1) gives an agency extensive control over the identity of the grant r ecipients with whom it must deal by limiting the pool of applicants eligible to receive funds, and by restricting the grantee's ability to 15 substitute a replacement entity in its stead; and (2) imposes rigorous federal oversight of the grantee's per formance in furtherance of the grant relationship. As we see it, a federal agency's retention of pervasive restrictions on a grantee's identity and manner of performance under a HUD-type grant pr ogram is inconsistent with the grantee's assertion of a pr operty interest in the grant relationship. As we will discuss below after examining the details of the Supportive Housing Program, such limitations greatly constrict the scope of the rights yielded to the grantee by the terms of the grant arrangement, and substantially (if not completely) r estrict their transferability and alienability, ther eby effectively rendering the grantee's interest essentially valueless. Moreover, as we explain infra in Part II.C., inclusion of such interests in the grantee's bankruptcy estate would further neither the equitable nor the rehabilitative purpose of the Bankruptcy Code. As a result, we are satisfied that if these controls are sufficiently extensive, i.e., if, under the terms of the arrangement between the grantor federal agency and the grantee, the agency retains strict, pervasive, and minute oversight over the identity of the grant r ecipient and the manner of that recipient's perfor mance, the existence of such controls can demonstrate that the federal grantor agency's interest in ensuring the effective administration of that program is weighty enough to exclude the grantee's interest from S 541's property definition.5 A number of federal courts have applied a similar approach to resolve the related question whether _________________________________________________________________ 5. Our analysis of the supervisory controls and limitations over the grant arrangement reserved to HUD is not meant to speak to the relationship between federal grantees and grantor agencies in other contexts, such as the government's liability for the acts of its grantees for purposes of the Federal Tort Claims Act. In that context, the Supreme Court has distinguished between the pervasive conditions imposed by a grantor agency to further federal supervision of the grant's administration, and the control over day-to-day operations r etained by the grant recipient. Because of this distinction, the Court has held that federal "regulations do not convert the acts of entrepreneurs .. . into federal government acts." United States v. Orleans, 425 U.S. 807, 816 (1976) (footnote omitted). 16 unexpended federal funds themselves and property purchased with those moneys once disbursed (as opposed to contract rights like those at issue on this appeal) constitute bankruptcy property of the debtor within the meaning of S 541. For instance, the Seventh Circuit in Joliet-Will considered the bankruptcy property status of such funds and property in the case of a bankrupt nonprofit community service organization. Although the debtor's trustee claimed that those items repr esented property of the debtor's estate, the Seventh Circuit concluded that the federal moneys and personal pr operty fell outside of S 541's property definition because the nature of the federal grant program and the relationship between the grantee community organization and grantor federal agency rendered the debtor organization "a trustee, custodian, or other intermediary, who lacks beneficial title and is merely an agent for the disbursal of funds belonging to another." Id. at 432 (citing to 11 U.S.C. S 541(d)). In reaching this conclusion, the court r elied principally on the fact that "[t]he grants impose minute controls on the use of the funds, such that the recipient has very little discretion." Id. (emphasis added). More specifically, the court noted that each grant required the r ecipient to adhere to a budget identifying particular project items and the costs chargeable to the grant for each item; that the grantee could not re-allocate unused moneys between items; that the grantee was required to reconvey title to property purchased with grant funds and costing mor e than $1,000 to the federal government, at the federal agency's direction; and that the statutes and regulations cr eating the grant scheme did not authorize the grantor federal agency to permit grant moneys to be used to pay cr editors of the private grantee. See id. Federal district and bankruptcy courts have also used the pervasiveness of government control over the administration of a grant program as the touchstone for assessing whether federal grant moneys and the pr operty purchased with those moneys constitute pr operty of the grantee's bankruptcy estate. See, e.g., In r e Community Assocs., Inc., 173 B.R. 824, 828 (D. Conn. 1994) (holding that three vans purchased with grant funds by the debtor, 17 a private community service organization, did not constitute property of the debtor's estate for bankruptcy purposes, on the ground that the agreement between the grantee organization and grantor agency imposed " `minute controls' on . . . [the] use of the grant funds and the use of the vans" purchased with those grant funds); In r e Alpha Ctr., Inc., 165 B.R. 881, 884 (Bankr. S.D. Ill. 1994) (holding that a van and state grant moneys transferred by the debtor community service organization to a successor grantee were not property of the debtor's estate for bankruptcy purposes, on the ground that extensive legislation and r egulatory rules restricted the debtor community service organization's discretion as to the use of grant moneys and vans purchased with those grant moneys); cf. In re Southwest Citizens' Org. for Poverty Elimination, 91 B.R. 278, 286-87 (Bankr. D.N.J. 1988) (noting that, although the federal grantor agency conceded that twenty vehicles pur chased by the debtor community service organization with federal grant funds constituted property of the debtor's estate, the federal agency, by virtue of the restrictions imposed by the agency on the grantee's use of the funds, retained an "equitable reversionary interest" in the vehicles superior to the debtor's interest and the debtor's trustee's interest as a hypothetical lien creditor under 11 U.S.C.S 544). We believe that such a "minute control" analysis is equally appropriate in assessing whether a debtor's interest in a grant relationship with HUD qualifies as pr operty of the debtor's estate under the terms of the Bankruptcy Code. We hold then that a federal agency's inter est in ensuring the efficient administration of program funds can result in the exclusion of the debtor grantee's interest in the grant relationship from S 541's pr operty definition if the agency's supervisory controls over the identity of the grantee and the manner of the grantee's performance ar e sufficiently pervasive and rigorous. The District Court, however, neglected entirely to take account of HUD's str ong interest in the Supportive Housing Program. This omission manifested itself in two related ways. First, the court mistakenly viewed the provisions of the Grant Agreement itself as the exclusive calipers for measuring the rights and obligations that LSS and HUD incurred by virtue of their grantor/grantee relationship, failing to consider the 18 restrictions placed on those rights by the other major components of the Supportive Housing Program, both statutory and regulatory. Second, the court construed the scope of the contractual rights it identified as arising out of the Grant Agreement too expansively, omitting consideration of the limitations imposed on those rights by the full Supportive Housing Program scheme. W e now turn to the facts of the case sub judice and to the details of the Supportive Housing Program, and explain why the District Court's conclusion that LSS's interest in the Program qualified as bankruptcy property was err oneous. 2. The District Court conducted its "property of the estate" inquiry by focusing solely on the Grant Agreement executed between LSS and HUD in 1995, concluding that "LSS' rights under the Grant Agreement became property of the bankruptcy estate once the bankruptcy petition wasfiled." By confining its examination to the Grant Agr eement, however, the court failed to take into account the fact that the Grant Agreement represents only one component of a broader federal grant scheme. To be sur e, the grant agreement into which the government and a grantee enter is an important element of the Supportive Housing Program's framework for the disbursement and administration of federal housing assistance funds. See 24 C.F.R. S 583.400(a) (2000) ("The duty to provide supportive housing or supportive services in accordance with the requirements of this part will be incorporated in a grant agreement executed by HUD and the recipient."). However, the grant agreement is by no means the exclusive source of those parties' rights and obligations under the federal Supportive Housing Program. The rights and obligations of grantor and grantee are also detailed in: (1) Subtitle C of the Stewart B. McKinney Homeless Assistance Act (Homeless Assistance Act or Act), 42 U.S.C. SS 11381-89; and (2) a set of regulations codified at 24 C.F.R. S 583 (Supportive Housing Rule or Rule), see 42 U.S.C. S 11387 (authorizing the HUD Secretary to issue final regulations implementing the Homeless Assistance Act). In fact, the Grant Agreement itself recognizes that the provisions of the 19 Homeless Assistance Act and the Supportive Housing Rule are integral elements of the grant relationship. For example, the Grant Agreement states that "[t]his grant agreement will be governed by the [Homeless Assistance] Act, [and] the Supportive Housing rule (24 CFR 583), a copy of which is attached hereto . . . and made a part her eof." Considering all of the components of the Supportive Housing Program as a coherent whole, it is evident that HUD's strong federal interest in safeguar ding the effective administration of Program funds, demonstrated by the rigorous controls imposed on the grant r elationship by the Act and the Rule, suffices to exclude LSS's inter est in the grant relationship from LSS's bankruptcy estate. The Supportive Housing Program scheme--embodied in the Homeless Assistance Act, Supportive Housing Rule, and the grant agreement executed between HUD and the grantee-- places important limitations on and provides HUD with extensive oversight over both the identity of grant recipients and the manner of those recipients' per formances under the grant arrangement. Turning first to the restrictions imposed on the identity of grantees, the provisions of the Program limit eligibility for receipt of federal funding to certain statutorily-enumerated entities: only "a State, metropolitan city, urban county, governmental entity, private nonprofit organization, or community mental health association that is a public nonprofit or ganization" is eligible to serve as a grant recipient. See 42 U.S.C. S 11382(1).d Further, in order to secure the right to administer Program funds, even those entities within this limited pool of eligible applicants must participate in a nationwide competitive process, in which they are r equired to submit a comprehensive project proposal. Recipients are selected by HUD, and the Homeless Assistance Act expressly mandates that HUD use the seven statutorily-enumerated criteria listed in the margin in order to make its selection. See 42 U.S.C. S 11386(b).6 On their face, these seven criteria _________________________________________________________________ 6. Section 11386(b), titled "Selection criteria," states in full: The Secretary [of Housing and Urban Development] shall select applicants approved by the Secretary as tofinancial responsibility to 20 demonstrate that HUD is to use these factors as a screen for ensuring that the grant recipient will implement its proposed project and administer Supportive Housing Program funds in an efficient and effective manner. In addition, and most importantly, the Supportive Housing Program preserves HUD's contr ol over the identity of the grant recipient by prohibiting changes in the grantee absent HUD's prior written approval. The Supportive Housing Rule states that "[a] recipient may not make any significant changes to an approved pr ogram without prior HUD approval," and expressly defines"significant changes" to include "a change in the recipient." 24 C.F.R. S 583.405(a)(1) (2000). This general r estraint on a grantee's ability to alienate or assign its interest in the grant arrangement with HUD is also reflected in a provision of the Grant Agreement executed between LSS and HUD:"No change may be made to the project nor any right, benefit, or advantage of the Recipient hereunder be assigned without prior written approval of HUD." _________________________________________________________________ receive assistance under this part by a national competition based on criteria established by the Secretary, which shall include-- (1) the ability of the applicant to develop an d operate a project; (2) the innovative quality of the proposa l in providing a project; (3) the need for the type of project pr oposed by the applicant in the area to be served; (4) the extent to which the amount of assistan ce to be provided under this part will be supplemented with resources from other public and private sources; (5) the cost-effectiveness of the pr oposed project; (6) the extent to which the applicant has demo nstrated coordination with other Federal, State, local, private and other entities serving homeless persons in the planning and operation of the project, to the extent practicable; and (7) such other factors as the Secretary d etermines to be appropriate to carry out this part in an ef fective and efficient manner. 42 U.S.C. S 11386(b). 21 The Supportive Housing Program's limitations on the uses to which grantees can put federal funds ar e just as strict, if not more so, than the Program's controls over the identity of grant recipients. In general, a Supportive Housing Program grant is tied to a particular project location, detailed in the recipient's funding proposal and application. A recipient may not change the location of the project site without prior written HUD appr oval. See 24 C.F.R. S 583.405(a)(1) (2000). Further more, the Supportive Housing Rule requires each recipient's project to comply with all applicable state and local housing codes, see id. S 583.300(a), and to meet various habitability standards with respect to such matters as structur e and materials, interior air quality, and water supply, see id. S 583.300(b). Most importantly, if the grant recipient r eceives Supportive Housing Program moneys for acquisition, r ehabilitation, or new construction purposes, the Supportive Housing Program requires that the recipient continue to use the property at that project site for the particular purposes specified in the funding application for at least 20 years. See 42 U.S.C. S 11383(b)(1); 24 C.F .R. S 583.305(a) (2000). Finally, the Supportive Housing Program fur nishes HUD with a series of remedial options exercisable in the event of a default on the part of the grant recipient. For example, should the grantee cease to use the project site for the agreed-upon project purposes befor e the expiration of the 20-year period, the Supportive Housing Program mandates that the recipient be required to r epay to HUD some or all of the federal grant moneys it has received. If the property ceases to be used for listed project purposes within 10 years of the project's start date, the Pr ogram requires that the recipient repay to HUD 100 per cent of the acquisition, rehabilitation, or new construction assistance received. And if the property ceases being used in the r equired manner some time after 10 years have passed, the repayment obligation is reduced by 10 percentage points for each year in excess of the 10 years that the property was used as supportive housing. See 42 U.S.C. S 11383(c)(1); 24 C.F.R. S 583.305(b) (2000). In addition, the Grant Agreement executed between LSS and HUD lists other remedial options available to HUD upon due notice to the grantee, including the issuance of a letter of warning requesting 22 corrective action, the reduction of grant amounts, and the substitution of an alternate recipient of HUD's choosing. In the aggregate, these provisions demonstrate that the Supportive Housing Program contemplates a str ong supervisory role for HUD, the agency char ged with implementing the Program and ensuring its efficient and effective administration. As we see it, HUD's interest was strong enough to materially affect theS 541 "property of the estate" calculus, excluding LSS's interest in the grant relationship with HUD from LSS's bankruptcy estate. In contrast, in its opinion, the District Court never mentioned either the Homeless Assistance Act or the Supportive Housing Rule, instead focusing exclusively on the Grant Agreement. The court's failure to account for HUD's strong supervisory interest in the administration of the Supportive Housing Program led to its incorrect conclusion that LSS's interest qualified as property of its bankruptcy estate. Furthermore, by omitting consideration of HUD's strong supervisory interest in the grant relationship, the District Court also appeared to give too much weight to LSS's contractual rights, because it failed to consider the limitations imposed on those rights by the substantive provisions of the Supportive Housing Pr ogram scheme. For example, in identifying the contractual rights yielded to LSS by virtue of its grant relationship with HUD, the District Court pointed to the fact that LSS had the power to assign its interest in the Supportive Housing Grant arrangement to another party. Although it recognized that this power of assignment was subject to HUD's prior written appr oval, the District Court did not take sufficient note of the extent of the restrictions that the other components of the Supportive Housing Program, i.e., the Homeless Assistance Act and the Supportive Housing Rule, placed on the grantee's power to assign. For instance, as discussed above, S 11382(1) of the Homeless Assistance Act restricts eligibility for Supportive Housing Program funding to a prescribed list of entities-- essentially state and local government units and non-profit organizations--and S 11386(b) of the Act directs that grantees be selected by HUD according to expr ess statutorily-enumerated criteria. Under the ter ms of the 23 Supportive Housing Program, LSS would not have had the power to assign its interest to a party that fell outside of S 11382(1)'s list of eligible entities--e.g., a private for-profit corporation--or to a party that failed to meet the criteria set forth in S 11386(b). The District Court's analysis, however, implied that LSS's right to assign was limited solely by the necessity of HUD's formal approval, and not by the substantial restrictions on the grant r elationship imposed by the other components of the Supportive Housing Program. In short, by omitting consideration of HUD's strong supervisory interest, the court construed the scope of the grantee's power of assignment too broadly.7 _________________________________________________________________ 7. Although not necessary to our conclusion that LSS's interest in the grant relationship fails to constitute part of the property of its bankruptcy estate, we note another way in which the District Court's assessment of the scope of LSS's interest was too expansive. As noted at the outset of Section II, the District Court, in concluding that LSS had a cognizable property interest for bankruptcy purposes, also pointed to two other contractual rights that it believed LSS possessed as a consequence of its grant relationship with HUD: (1) LSS's right to receive payment from HUD for authorized expenditur es incurred while administering its Supportive Housing Program pr oject; and (2) LSS's right to compel HUD to make payments in connection with LSS's administration of the Supportive Housing Program. In essence, these rights represent two sides of the same coin: both are concerned with LSS's ability to require HUD to pay moneys for expenses that LSS incurred in implementing and running its Supportive Housing Program project, and hence our discussion treats these two rights together. The Department of Justice (DOJ), as amicus curiae, argues that, just as the District Court construed LSS's power of assignment too robustly, so too it treated these contractual rights to compel payment as having too broad a scope. Specifically, DOJ contends that LSS did not have a general right to receive moneys for HUD. Rather , DOJ asserts, LSS's right to receive payment from HUD was cir cumscribed by the provisions of the Tucker Act, which authorizes actions seeking money damages against the federal government for breach of contract. See 28 U.S.C. S 1346(a)(2) ("Little Tucker Act" granting concurrent jurisdiction to the district courts and the United States Court of Federal Claims over claims, not in excess of $10,000, founded "upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort"); id. S 1491(a)(1) ("Big Tucker Act" granting exclusive jurisdiction to the United States Court of Federal Claims over identical claims in excess of $10,000); Dia Navigation Co. v. Pomeroy, 34 F.3d 1255, 1267 (3d Cir. 1994). 24 C. Considerations of bankruptcy policy also militate in favor of the conclusion detailed in the previous section. Cf. _________________________________________________________________ According to DOJ, a claim against the federal government under the Tucker Act will lie only if the government, in administering the grant program, incurs a contractual obligation to the grantee, breaches that obligation (thereby injuring the grantee), and the grantee then uses the Tucker Act as a vehicle for obtaining "monetary compensation for [this] past injury." Cole County Reg'l Sewer Dist. v. United States, 22 Cl. Ct. 551, 556 (1991), aff 'd without opinion, 949 F.2d 402, 404 (Fed. Cir. 1991); see also City of Wheeling v. United States, 20 Cl. Ct. 659, 664 (1990) (holding that the Claims Court, the pr edecessor to the Court of Federal Claims, has jurisdiction under the Tucker Act to hear a city's challenge to the Environmental Protection Agency's refusal to disburse grant funds to cover the increased engineering fee the city was obligated to pay as a result of its renegotiation of an engineering contract, on the ground that the city's claim "seeks a r emedy which is retroactive in nature (monetary compensation for an injury to property)"). With respect to the Supportive Housing Program, DOJ contends that a contractual obligation on the part of HUD would have been triggered only if LSS had expended its own moneys for authorized Program expenses, and then HUD had refused to r eimburse LSS out of the grant funds allocated to LSS's supportive housing pr oject. Thus, according to DOJ, LSS did not have the broad, generalized right to compel HUD to disburse Program moneys that the District Court appeared to assume that LSS possessed; rather, the argument continues, LSS had the much narrower right to receive grant funds fr om HUD to cover expenses incurred in furtherance of authorized grant purposes. DOJ's analysis of LSS's ability to compel payment of Program moneys glosses over significant unresolved issues, e.g., whether federal assistance agreements, such as the Grant Agr eement at issue on this appeal, constitute "express or implied contract[s]" within the meaning of the Tucker Act. The jurisprudence on this issue is inconclusive. Compare Trauma Serv. Group, Ltd. v. United States, 33 Fed. Cl. 426, 429-30 (1995) (holding that a cooperative agreement, a species of federal assistance agreement identified in the Federal Grant and Cooperative Agreement Act, did not qualify as a contract within the coverage of the Tucker Act), aff 'd on other grounds, 104 F.3d 1321 (Fed. Cir. 1997) with Thermalon Indus., Ltd. v. United States, 34 Fed. Cl. 411, 413, 414 (1995) (holding that a grant agreement "satisfies the criteria for an express or implied contract with the United States and, thus, falls within the scope 25 Kokoszka v. Belford, 417 U.S. 642, 645 (1974) (noting that because "it is impossible to give any categorical definition to the word `property' " as used inS 70a(5) of the Bankruptcy Act, the predecessor to the current definition of property contained in 11 U.S.C. S 541, "[i]n determining the term's scope--and its limitations--the purposes of the Bankruptcy Act must ultimately govern") (inter nal quotation marks and citations omitted). It is well-settled that two overarching purposes, one equitable and the other rehabilitative, undergird the Bankruptcy Code in general and the definition of property contained in S 541 in particular. See, e.g., In re Andrews, 80 F.3d 906, 909 (4th Cir. 1996). First, the Bankruptcy Code attempts to provide for the efficient and equitable distribution of an insolvent debtor's remaining assets to its creditors. See, e.g., City of New York v. Quanta Resources Corp., 739 F.2d 912, 915 (3d Cir. 1984). Second, the Code seeks to provide debtors with a _________________________________________________________________ of . . . Tucker Act jurisdiction" so long as it meets the general black letter requirements for a binding contract, i.e.,"a mutual intent to contract including an offer, an acceptance, and consideration passing between the parties"). See also Jeffrey C. Walker, Note, Enforcing Grants and Cooperative Agreements as Contracts Under the Tucker Act, 26 Pub. Cont. L.J. 683 (1997) (analyzing the disagreement between the Court of Federal Claim's decisions in Trauma Services and Thermalon, and reasoning that federal assistance agreements should constitute "contracts" for purposes of the Tucker Act). The case before us does not directly pr esent a claim by LSS seeking to compel HUD to pay over Supportive Housing Pr ogram funds, however, and we will therefore refrain fr om resolving such open issues. Nonetheless, we believe that DOJ's argument in regard to the scope of LSS's right to compel payment is not without for ce. If grant agreements do qualify as contracts for Tucker Act purposes, it appears that the District Court overemphasized the scope of LSS's right to receive Program moneys from HUD insofar as the court characterized it as a general right to compel payment from HUD. T o the contrary, under the Tucker Act regime advanced by the gover nment, LSS's right is much narrower, in that a claim against the federal government for money owed would lie only if LSS incurred expenses authorized by the terms of the Supportive Housing Program, and HUD refused to disburse federal moneys to cover such expenses. While the for egoing analysis does not inform our decision, it does inveigh against facile, expansive construction of LSS's rights under the Grant Agr eement. 26 "fresh start" by relieving them of the weight of their outstanding debts and permitting them to r eorganize their affairs. See, e.g., United States v. Whiting Pools, Inc., 462 U.S. 198, 203 (1983); Insurance Co. of North America v. Cohn, 54 F.3d 1108, 1113 (3d Cir. 1995). We do not believe that inclusion of intangible contractual rightsflowing from a HUD-type federal grant arrangement will further either of the dual purposes of the Bankruptcy Code. Under the scheme contemplated by the Bankruptcy Code, a debtor's creditors are typically compensated to the extent possible and in as equitable a fashion as possible pursuant to a court-approved plan, generally after the trustee marshals the debtor's bankruptcy property and liquidates it at a bankruptcy sale. As a practical matter, in order for such a procedure to generate a pool of funds from which creditors can be compensated, the items constituting the bankrupt's property must be readily alienable and assignable--i.e., they must be capable of being sold to a third party and of fetching some value as a consequence of that sale. Unlike a federal license, which fur nishes clear, quantifiable benefits to the licensee, it is difficult to see how LSS's tenuous interest in the Supportive Housing Program grant relationship with HUD would yield that value, given the fact that, as discussed supra in Part II.B.2, any potential purchaser would surely have to fall within the list of eligible applicants contained in S 11382(1) of the Homeless Assistance Act, and would be requir ed to meet the criteria set forth in S 11386(b). Mor eover, it is unclear why an entity that qualifies as an eligible applicant under S 11382(1) would elect to bid on and pur chase the opportunity to administer Program funds fr om a previous grantee, rather than simply engaging in the or dinary grantee selection process. Put another way, even were LSS's Trustee to place the right to succeed to LSS's interest in the Grant Agreement with HUD up for auction, we ar e dubious, as a practical matter, that any potential buyers would actually bid for that right. Inclusion of a grantee's intangible contractual rights as part of the bankruptcy estate in furtherance of the Bankruptcy Code's rehabilitative goal seems equally problematic. It is true that a debtor's "r eorganization effort 27 would have small chance of success . . . if pr operty essential to running the business were excluded from the estate," Whiting Pools, 462 U.S. at 203; cf. Stewart v. Gurley, 745 F.2d 1194, 1196 (9th Cir . 1984) (per curiam) ("Unless the debtor can demonstrate that the pr operty is necessary to an effective reorganization, the property is of no value to him.").8 However , given the pervasive supervisory controls over the grant reserved to HUD under the terms of the Supportive Housing Pr ogram scheme, see supra Part II.B.2., it is difficult to see how LSS's interest in the Supportive Housing Program grant could be considered essential to the continued operation of its community service operations. The Supportive Housing Program makes available to HUD an array of remedial options in the event of a default on the part of a grantee, such as the filing of a bankruptcy petition. For instance, under the terms of the Grant Agreement executed between LSS and HUD, once the grantee defaults, HUD can seek to preserve the integrity of the Supportive Housing Program grant by or dering the recipient to stop incurring costs chargeable to the grant program, by reducing the amount of grant moneys available, or by substituting another recipient of HUD's choosing. In fact, after LSS filed its Chapter 11 bankruptcy petition on January 14, 1997, HUD exercised one such remedial option by freezing LSS's ability to draw down grant moneys. Neither of the parties disputes that HUD's actions were authorized by the Supportive Housing Program. In light of this freeze on the disbursement of funds to LSS, it is difficult to see how LSS's contractual interest in the grant relationship would be of any assistance to its business reorganization. In short, we think, as a practical matter, that LSS's tenuous interest in the Supportive Housing grant _________________________________________________________________ 8. In fact, if an item of property in the hands of a third party is essential to the debtor's continuing business operations, the debtor's trustee, provided that the appropriate statutory conditions are met, will typically seek to have the property turned over the debtor's estate, see 11 U.S.C. SS 542-43, or to have the transfer set aside, see id. S 544. Interestingly, in the instant case, LSS's Trustee never sought to have WHO's assumption of the Supportive Housing Grant voided. 28 arrangement, subject to HUD's pervasive supervisory controls, would yield no value even if put up for auction by LSS's Trustee. Given the apparent worthlessness of LSS's interest, we do not believe that inclusion of that interest within S 541's definition of property would serve either the Bankruptcy Code's equitable goal of protecting creditors by ensuring that they are fairly compensated fr om a tangible pool of funds, or the Code's rehabilitative goal of permitting the debtor to make a fresh start. D. In response to this S 541 property analysis, LSS's Trustee counters that even highly regulated items of pr operty, such as stock exchange seats and government-issued licenses, can constitute "property of the estate" for bankruptcy purposes, and argues, therefore, that the fact that federal law imposes significant restrictions on grantees such as LSS should not preclude the grantee's inter est from falling within the Bankruptcy Code's property definition. In support of this position, the Trustee points us to such decisions as In re Page, 107 F . 89 (3d Cir. 1901), involving the bankruptcy status of a member's seat on the Philadelphia Stock Exchange, see id. at 89, and In re Central Arkansas Broadcasting Company, 68 F.3d 213 (8th Cir. 1995) (per curiam), concerning the bankruptcy status of a radio station broadcasting license issued by the Federal Communications Commission (FCC), see id. at 214. The Trustee is certainly correct in contending that the fact of significant regulatory control, by itself, will not keep a piece of property outside of S 541's expansive scope, and we do not mean to suggest that regulation qua regulation directs the outcome of the S 541 property inquiry. Rather, we conclude only that, under the appropriate set of circumstances, the supervisory controls imposed on a grant relationship by the substantive provisions of the grant program can be sufficiently pervasive, strict, and minute so as to make manifest the federal agency's str ong interest in overseeing the administration of that grant pr ogram. It is that weighty federal interest, and not the bar e fact of regulation itself, that can keep the debtor's interest in the grant relationship outside of S 541's pr operty definition. 29 Furthermore, the Trustee's r eliance on cases such as Page and Central Arkansas Broadcasting is unavailing. In Page, a decision that is now a century old, we held that a debtor's seat on the Philadelphia Stock Exchange qualified as property of the bankruptcy estate under the Bankruptcy Act of 1898, notwithstanding the fact that the Stock Exchange's constitution required any sale or transfer of the seat to be approved by the Exchange. See Page, 107 F. at 92. We noted that this limitation "possibly affected the value of the seat for the purposes of sale, but, while restricting, did not destroy its transferability." Id. However, our decision in Page has little bearing on our analysis in the instant case. Unlike Page, which examined the effect of a transfer restriction alone on the bankruptcy status of the subject property, our S 541 property analysis takes into account the full panoply of supervisory conditions and controls imposed by the Supportive Housing Pr ogram scheme on the grant relationship between LSS and HUD. More importantly, because the case befor e us involves a federal agency with a substantial interest in overseeing the grant program it is charged with administering, we must accord greater weight to that gover nmental interest than we ordinarily would provide, as in Page , to a private entity's supervisory interest over its relationship with its constituent members. The Trustee's reliance on Central Arkansas Broadcasting, in which the Court of Appeals for the Eighth Cir cuit held that a FCC-issued radio operating license fell within the ambit of the Bankruptcy Code's property definition, see 68 F.3d at 214-15, does more to advance his case. After all, the fact that the FCC, a federal agency, designates a particular radio operator as licensee and retains the power to approve the transfer of an issued license does implicate a federal concern. Moreover, the Eighth Circuit's decision is consistent with a line of cases holding that state-issued licenses, commonly liquor licenses, are encompassed within S 541's property definition. See, e.g., In re Nejberger, 934 F.2d 1300, 1300-01 (3d Cir. 1991) (holding that a debtor licensee's interest in a license issued by the Pennsylvania Liquor Control Board constituted pr operty of the debtor's estate within the meaning of S 541). Nonetheless, we conclude that there are fundamental dif ferences in the 30 nature of a HUD-type grant relationship as compared to that of a licensing arrangement that excludes the former from S 541's property definition. First, an entity selected as a licensee plays a dif ferent role and faces a different set of incentives than does an entity chosen as a HUD-type grantee. Ordinarily, an entity's receipt of a license permits the entity to engage in federally regulated activities for its own profit. In other words, the benefits of the license accrue primarily to the licensee itself. In contrast, an entity chosen as a HUD-type grant r ecipient is not itself the beneficiary, but acts as an intermediary administering those moneys for the benefit of the ultimate recipients of the federal assistance. Put another way, unlike the licensee, the grantee's position is more akin to that of "a trustee, custodian, or other intermediary, who lacks beneficial title and is merely an agent for the disbursal of funds belonging to another." In r e Joliet-Will County Cmty. Action Agency, 847 F.2d 430, 432 (7th Cir . 1988). In this latter situation, as compared to a typical licensing arrangement, the federal government will likely possess a weightier supervisory interest in ensuring that the grantee administers the moneys it receives in an ef fective and efficient manner so that the ultimate beneficiaries receive the full measure of the federal assistance intended for them. Furthermore, as a practical matter , we do not believe that a grantee's interest in a HUD-type grant arrangement is as easily bought and sold--and thus as readily capable of serving as a source of funds from which the debtor's creditors can be paid--as is a debtor's inter est in a government-issued license. For example, in Central Arkansas Broadcasting, the FCC-issued radio license found to constitute property of the debtor's estate had been sold and transferred as part of a bankruptcy auction conducted by the trustee. See 68 F.3d at 214. In fact, courts have generally acknowledged that the value of a gover nment- issued license can typically be realized thr ough sale, notwithstanding conditions requiring gover nment approval prior to transfer. See, e.g., Nejber ger, 934 F.2d at 1302 (noting that "in practice, a liquor license can be bought and sold in the market place"); In re T erwilliger's Catering Plus, 31 Inc., 911 F.2d 1168, 1171 (6th Cir . 1990) ("It is undeniable that a liquor license has pecuniary value to its holder since the license enables the holder to sell alcoholic beverages and can be sold for value."). In sharp contrast, our discussion supra at Part II.C. demonstrates the unlikelihood that a grantee's interest in a HUD-type grant relationship would be able to yield any type of value at a bankruptcy auction, especially given the strict r estrictions imposed by federal law over the identity of any potential grantee. E. In light of the numerous and varied scenarios under which federal agencies enter into contractual arrangements with private entities, we must be careful to delineate the scope of our holding. As we earlier observed, each time a federal agency executes a contractual agreement with a private party, a federal interest is ar guably implicated, and we certainly do not mean to suggest in our discussion that every right arising out of any such contractual arrangement should be automatically excluded from S 541's property definition. For example, as discussed supra in Part II.D., a licensee's interest in a government-issued license is generally likely to fall within the ambit of the Bankruptcy Code's property definition, given the fact that licenses, unlike grants, typically inure to the dir ect benefit of the recipient (as opposed to other, ultimate beneficiaries), and are generally capable of being bought and sold in the public market. Moreover, we recognize that agencies of the federal government can and do routinely enter into contracts with private entities that share the features of ordinary commercial agreements. Federal procur ement contracts, typically entered into between government agency purchasers and private suppliers, are one such example.9 _________________________________________________________________ 9. In fact, in our prior case law, we appear to have assumed that the Bankruptcy Code's definition of "property of the estate" would cover federal procurement contracts. For instance, in Matter of West Electronics, Inc., 852 F.2d 79 (3d Cir. 1988), we considered a 32 Our holding is not meant to imply that the rights and interests yielded to private entities by those contracts automatically fall outside the scope of S 541's property definition. Although we need not decide today the question whether a contractual interest arising out of a federal procurement relationship qualifies as property of the debtor's estate within the meaning of 11 U.S.C.S 541, we observe that, in contrast to a grantor/grantee r elationship such as the one entered into between HUD and LSS in this case, a garden-variety federal procur ement contract (for goods or services) generally does not directly further a public-oriented purpose (such as the provision of transitional housing to homeless individuals). Thus, federal procurement contracts appear significantly less likely to implicate a federal concern akin to the weighty federal interests operating in the instant case--i.e., HUD's supervisory interest in ensuring the efficient administration of federal grant moneys by qualified inter mediaries to the ultimate beneficiaries of the grant. The absence of a significant, direct public-oriented objective undergirding a procur ement contract relationship is evident from the language of the Federal Grant and Cooperative Agreement Act of 1977 (FGCAA), curr ently codified at 31 U.S.C. SS 6301-08.10 The FGCAA's distinction _________________________________________________________________ procurement contract executed between the United States and West Electronics, Inc., under which West obligated itself to furnish the Air Force with missile launcher power supply units. See id. at 80. After suffering financial difficulties, W est filed for Chapter 11 bankruptcy relief, triggering an automatic stay under 11 U.S.C. S 362, and the United States petitioned the bankruptcy court to lift the stay to allow the government to terminate the contract. See id. at 80-81. Although we reserved a final determination of the issue, we assumed that the automatic stay provision--which under S 362(a) of the Bankruptcy Code extends to "any act to obtain possession of property of the [debtor's] estate," 11 U.S.C. S 362(a)(3) (emphasis added)--would cover the procurement contract at issue in West. See West Elecs., 852 F.2d at 82. 10. Congress enacted the FGCAA in response to agencies' inconsistent and often interchangeable use of assistance instruments such as procurement contracts and grant agr eements. One of the FGCAA's principal stated goals is to 33 between procurement contracts and grant agreements is, in large part, based on the extent to which each contractual arrangement directly furthers a public purpose. The statute characterizes a procurement contract as"the legal instrument reflecting a relationship between the United States Government and . . . [an]other r ecipient when . . . the principal purpose of the instrument is to acquir e (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government." 31 U.S.C. S 6303 (emphasis added). In contrast, the FGCAA describes a grant agreement as the legal instrument reflecting a relationship between the United States Government and . . . [an]other recipient when-- (1) the principal purpose of the relationship is to transfer a thing of value to . . . [the] other recipient to carry out a public purpose of support or stimulation authorized by a law of the United States instead of acquiring (by purchase, lease, or barter) pr operty or services for the direct benefit or use of the United States Government; . . . . Id. S 6304 (emphasis added). As the FGCAA's provisions recognize, a private party's interest in a federal procurement contract is much less likely to serve a public- oriented purpose, such as the provision of federal assistance to third-party beneficiaries, and thus the federal _________________________________________________________________ prescribe criteria for executive agencies in selecting appropriate legal instruments to achieve-- (A) uniformity in their use by executive age ncies; (B) a clear definition of the relationships they reflect; and (C) a better understanding of the responsibil ities of the parties to them . . . . 31 U.S.C. S 6301(2). For an overview of the r elationship between the various federal assistance instruments, and an examination of the legal issues they raise, see generally Jeffrey C. Walker, Note, Enforcing Grants and Cooperative Agreements as Contracts Under the Tucker Act, 26 Pub. Cont. L.J. 683 (1997). 34 government's interest in the contractual arrangement appears substantially less likely to lead to the exclusion of LSS's interest from S 541's pr operty definition. F. In sum, we do not mean to suggest that every grantee's interest in a grant relationship with a federal agency will fall outside the scope of S 541's property definition, for we must be mindful of the fact that Congress intended the Bankruptcy Code's definition of property to sweep broadly. But the Code's property definition is not without limitations, and under certain concededly narr ow circumstances, a federal agency's weighty inter est in overseeing the administration of its grant pr ograms can suffice to keep a grantee's interest outside of the Code's property definition. In this regar d, the touchstone of our analysis is the strength of the federal agency's supervisory interest over the grant program, best measured by the level of agency oversight over the grant relationship preserved in the provisions of the federal grant program. Controls that are sufficiently extensive, i.e., federal agency retention of strict, pervasive and minute oversight over the identity of the grant recipient and the manner of that recipient's performance, can demonstrate the strength of an agency's federal interest in the ef fective administration of grant moneys, and can lead to the exclusion of the grantee's interest in the grant relationship from its bankruptcy estate. In the case befor e us, HUD's weighty interest, manifested in the extensive supervisory controls imposed by HUD through the pr ovisions of the Homeless Assistance Act, Supportive Housing Rule, and Grant Agreement itself, sufficed to keep LSS's interest in the grant relationship outside of S 541's property definition. III. Breach of Fiduciary Duty Our conclusion that LSS's interest in the Supportive Housing Grant relationship with HUD does not constitute property of LSS's bankruptcy estate does not fully dispose of the merits. There is an issue in this case that was not directly considered by either the Bankruptcy or the District 35 Court, and that remains open even in light of our holding that LSS's interest falls outside of S 541's property definition: whether WHO, by assuming LSS's inter est without notifying constituents of the Unsecur ed Creditors Committee of which WHO was a member at the time of the assumption, breached a fiduciary duty to its fellow Committee members. The Bankruptcy Code authorizes the appointment of a committee of creditors, see 11 U.S.C.S 1102, and grants to such committees the power to investigate debtors, to negotiate a bankruptcy reorganization plan, and to "perform such other services as ar e in the interest of those represented," 11 U.S.C. S 1103(c). We have construed S 1103(c) as implying a fiduciary duty on the part of members of a creditor's committee, such as the present Unsecured Creditors Committee, towar d their constituent members. See In re PWS Holding Corp., 228 F.3d 224, 246 (3d Cir. 2000). A committee member violates its fiduciary duty by pursuing a course of action that furthers its self- interest to the potential detriment of fellow committee members. On May 28, 1997, about four months after LSS's January 14, 1997 bankruptcy petition, WHO executed a Grant Agreement Amendment with HUD, pursuant to which WHO assumed LSS's interest in the Supportive Housing Program grant relationship. The Grant Agreement Amendment in fact identified WHO as "Successor to Life Service Systems, Inc." LSS had not identified the original Grant Agreement on its Schedule of Assets. At the time it assumed LSS's interest, WHO was serving on LSS's Unsecur ed Creditors Committee. WHO, however, did not disclose the fact that it had assumed LSS's interest in the Supportive Housing Program grant relationship to its fellow Committee members or to the Bankruptcy Court. By accepting an invitation to sit on the LSS's Unsecured Creditors Committee, WHO clearly incurr ed a fiduciary obligation to its fellow Committee members. The question remaining before us, therefor e, is whether WHO's actions in assuming LSS's interest violated such a duty. The Bankruptcy Court summarily concluded that WHO "breached the fiduciary duty it owed to general unsecured 36 creditors as a result of its membership on the committee of unsecured creditors in that its conduct was blatantly self- aggrandizing." The conduct to which the Bankruptcy Court referred was WHO's assumption of LSS's interest in the Grant Agreement with HUD, without notice to either fellow Committee members or to the Bankruptcy Court. The District Court never reviewed the Bankruptcy Court's fiduciary duty analysis, stating that WHO had not claimed "that the bankruptcy court erred in concluding that WHO breached its fiduciary duty by assuming the LSS' rights under the agreement." In light of our conclusion above, we are constrained to conclude that both the District and Bankruptcy Courts' analysis of the breach of fiduciary duty issue was incomplete, as neither court considered the important question whether a fiduciary obligation to Committee members can arise in connection with a transaction involving property that falls outside of the debtor's bankruptcy estate. This omission is of course explained by the fact that both the Bankruptcy and District Courts appeared to predicate their breach offiduciary duty analyses on the assumption that LSS's interest in the Grant Agreement with HUD constituted pr operty of the debtor's estate within the meaning of 11 U.S.C.S 541. As discussed extensively in Section II, this assumption was erroneous. Thus, neither court had occasion to consider whether this error would alter its analysis of the fiduciary duty issue. Moreover, in the initial briefing and at oral argument, the parties to this appeal never addressed this important question, framing the issue before us solely as whether LSS's interest in the Supportive Housing Grant Agreement constituted property within the meaning ofS 541. Both LSS's Trustee and WHO appear to have assumed that the Trustee's action for breach of fiduciary duty would not lie if LSS's interest fell outside of S 541's property definition. In its amicus curiae brief, the Department of Justice (DOJ) challenges this assumption. While arguing at length that LSS's interest in the grant relationship with HUD does not constitute property of its bankruptcy estate, DOJ also contends that WHO violated its fiduciary obligation to fellow 37 Committee members by not disclosing the existence of that interest. In response, WHO asserts that a breach of a fiduciary duty can never occur--in fact, that afiduciary duty can never arise--in connection with the transfer of an item that is not "property of the estate" within the meaning of S 541. We have problems with both DOJ's and WHO's positions in regard to the breach of fiduciary duty issue. DOJ's argument that a fiduciary obligation was violated notwithstanding the fact that LSS's interest did not constitute property of the estate is less than pellucid. Under the DOJ's theory, WHO's failure to disclose the existence of LSS's interest in the grant r elationship to either the Bankruptcy Court or LSS's creditors materially undermined the ability of the Bankruptcy Court to take the Supportive Housing Program grant into account in formulating a comprehensive Chapter 11 plan for LSS's reorganization. What the DOJ fails to explain, however, is why property that falls outside of S 541's definition, such as LSS's interest in the grant relationship with HUD, has any role in a debtor's reorganization. At the same time, we are unwilling at this stage, given the scanty briefing and argument on this issue, to adopt WHO's suggested bright-line rule, which would have us declare that a fiduciary obligation can never arise with respect to an item of property not included in S 541's definition. Perhaps situations (which we cannot anticipate here) could exist in which a creditor's active concealment of an item of property that does not qualify as pr operty of the estate for bankruptcy purposes would threaten to undermine the ability of other creditors to receive an equitable distribution of the debtor's remaining assets or the efforts of the bankruptcy trustee to r eorganize the debtor's affairs. In such a circumstance, imposition of a fiduciary obligation may very well further the purposes of the Bankruptcy Code and the general fiduciary pr ohibition against self-dealing. In light of the fact that both the Bankruptcy and District Courts did not consider these issues, and given the parties' failure to fairly present and addr ess these issues to us, we decline at this stage of the proceedings to r esolve the 38 question whether WHO breached a fiduciary duty it owed to fellow Committee members by failing to disclose the existence of an item of property--LSS's inter est in the Supportive Housing Grant program--that does not constitute property of the debtor's estate within the meaning of 11 U.S.C. S 541. Rather, we believe the proper course of action lies in remand for further pr oceedings designed to resolve this issue in the first instance. On remand, the court should consider whether afiduciary obligation to fellow unsecured creditors can arise out of a transaction involving an item of property that does not qualify as property of the estate for Bankruptcy Code purposes and, if so, whether, based on the specific facts of WHO's case, WHO breached such a fiduciary duty. IV. Conclusion For the foregoing reasons, the judgment of the District Court will be reversed, and the case remanded to the District Court for a determination as to whether WHO breached its fiduciary duty to fellow members of the Unsecured Creditors Committee, in light of the fact that LSS's interest in the Grant Agreement with HUD does not constitute property of LSS's bankruptcy estate. The District Court may of course remand the matter to the Bankruptcy Court for this determination. Parties to bear their own costs. A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit 39 

17-550 Singh v. Sessions BIA Hom, IJ A206 443 902 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of August, two thousand eighteen. PRESENT: JON O. NEWMAN, DENNIS JACOBS, RICHARD C. WESLEY, Circuit Judges. _____________________________________ FATEH SINGH, Petitioner, v. 17-550 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Dalbir Singh, New York, NY. FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Kiley Kane, Senior Litigation Counsel; Lynda A. Do, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.  UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is GRANTED, and the case is REMANDED. Petitioner Fateh Singh, a native and citizen of India, seeks review of a January 27, 2017, decision of the BIA affirming a September 28, 2015, decision of an Immigration Judge (“IJ”) denying Singh’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Fateh Singh, No. A 206 443 902 (B.I.A. Jan. 27, 2017), aff’g No. A 206 443 902 (Immig. Ct. N.Y. City Sept. 28, 2015). We assume the parties’ familiarity with the underlying facts and procedural history in this case. Under the circumstances of this case, we have reviewed both the IJ’s and BIA’s decisions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the agency’s adverse credibility determinations under a substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 2 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The governing REAL ID Act credibility standard provides as follows: Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on . . . the consistency between the applicant’s or witness’s written and oral statements . . . the internal consistency of each such statement, the consistency of such statements with other evidence of record . . . and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless . . . it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. In this case, the petitioner alleged persecution by governmental authorities because of his membership in a pro- Sikh independence party. He testified in detail that on three occasions he was arrested, detained, and severely beaten. These episodes occurred in 2009, 2012, and 2013. The agency concluded that he was not credible because of what it considered two inconsistencies in his testimony. The first concerned his account of the medical treatment he received 3 after the 2009 and 2012 episodes. The second concerned the source of funds expended on the petitioner’s behalf. Petitioner was first questioned about medical treatment he received after the 2012 episode. He said treatment was provided by a “local doctor” in the village. Certified Administrative Record (“CAR”) 143. Then, asked about treatment after the 2009 episode, he said, “I received treatment from the same village doctor.” CAR 145. Asked about treatment after the 2013 episode, he said, “I didn’t receive any treatment.” Id. Government counsel confronted petitioner as follows, “Now you just testified after all three beatings you received medical attention from a local village official.” CAR 146. The Petitioner answered, “I received treatment two times, not three times.” Id. When Government counsel persisted, stating, “[Y]ou stated you were treated by the same village helper who treated you in March 2012 and who treated you in November 2013,” id., the Petitioner replied, “I said I was treated once by the village doctor.” Id. Government counsel then said, “Sir, we can replay the tape.” Id. The IJ then said, “We don’t have to.” The petitioner clarified that after his first beating, he was treated at a 4 hospital by Dr. J.P. Gupta. Exhibit 3E is a “medical certificate” reporting that Dr. J.P. Gupta from J.P. Surgical Hospital treated Fateh Singh for “lash injuries” on November 2, 2009. The IJ concluded that there was an inconsistency between the petitioner’s stating that he was twice treated by “a pharmacist trained medical person” in a “village facility” and his testimony and an exhibit showing he was treated by Dr. Gupta at a hospital. CAR 66. Although there might be an inconsistency, it is also possible that the IJ was led astray by the questioning of Government counsel, who incorrectly asserted that the petitioner said he received treatment from a local village official on three occasions. The petitioner refuted this incorrect statement of his testimony by asserting that he was treated once by the village doctor and once by Dr. Gupta at a hospital, the latter assertion corroborated by the doctor’s certificate. With respect to funds, the petitioner testified that the money used to pay police officers to secure his release from detention came from people to whom his farming family sold grains and also from a bank. CAR 159. The petitioner testified 5 that the money “to reach here” came from the sale of land that was his but was “on my grandfather’s name.” Id. 161. The IJ concluded that the petitioner “testified inconsistently that the source of the money that was used to pay for his alleged release was based upon property owned by his grandfather who allegedly sold portions of it to acquire funds used by” the petitioner. CAR 66. The IJ misapprehended what the petitioner had said. He had testified that the land sale funds were used “to reach here,” i.e., to enable him to travel to the United States. In considering the second of the two alleged inconsistencies relied on to find the petitioner not credible, we encounter a threshold matter. With respect to the source of funds, the argument portion of the Government’s brief makes no attempt to support the credibility conclusion on the ground of an alleged inconsistency, arguably forfeiting any reliance on that ground. For his part, the petitioner’s brief also makes no mention of the alleged discrepancy concerning source of funds, an omission that the Government contends shows he has “waived any challenge to the agency’s finding.” Br. for Respondent at 18 n.6. The 6 Government cites Ahmed v. Holder, 624 F.3d 150, 153 (2d Cir. 2010), but that decision concerned forfeiture of an entire “ruling,” not one of multiple bases for a ruling such as lack of credibility. Whether or not the omissions from the briefs of both sides would entitle us to deem an argument forfeited by either side, we are not required to do so, and we elect to consider both of the alleged inconsistencies. The matter of the funds is plainly not an inconsistency providing a valid basis for an adverse credibility finding. The IJ simply misunderstood the testimony, an understandable occurrence by a hearing officer obliged to adjudicate several cases in a single day and promptly dictate findings. The matter of the medical treatment is an arguable inconsistency, but rendered uncertain by the misleading questioning of Government counsel. Cf. Gao v. BIA, 482 F.3d 122, 129 (2d Cir. 2007) (IJ improperly adopted assumption in cross-examiner’s question). Under all the circumstances, we are left with an insufficient basis to uphold the finding of lack of credibility, and the case must be remanded for a new hearing. See Jin Chen v. U.S. Dept. of Justice, 426 F.3d 104, 113 (2d 7 Cir. 2005) (“[W]e will reverse where [an] adverse credibility determination is based upon . . . an incorrect analysis of the testimony.”) (internal quotation marks omitted). At the hearing the details of the source of funds and the providers of medical treatment can be fairly and fully ascertained for such relevance, if any, as they might bear on the credibility of the petitioner’s account of his three episodes of persecution. For the foregoing reasons, the petition for review is GRANTED, ands the case is REMANDED to the BIA so that an IJ may conduct a new hearing. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 8 

495 So.2d 895 (1986) Jack Stanley TOWNE, Appellant, v. STATE of Florida, Appellee. No. BI-354. District Court of Appeal of Florida, First District. October 13, 1986. *896 Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant. Jim Smith, Atty. Gen. and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee. JOANOS, Judge. Appellant Jack Stanley Towne appeals from the denial of his motion to suppress statements and physical evidence. The questions presented for our review are: (1) whether the arrest was lawful, and (2) whether appellant's statements were voluntarily given. We affirm. Appellant entered pleas of nolo contendere in four cases involving charges of armed burglary, aggravated assault, and sexual battery with a weapon. The pleas were entered with an express reservation of the right to appeal the trial court's denial of the motion to suppress. Appellant and the state stipulated that the issues presented by the suppression motion were dispositive of the cases against him. On December 4, 1984, at 1:00 a.m., appellant was arrested at an apartment complex which was located next to the apartment complex where he lived. The arresting officer had been dispatched to the Villas Apartments in response to a complaint that a prowler was peeking in windows. The officer observed appellant walk approximately thirty paces, stop next to a window, and then crouch down to look in the window for several seconds. Appellant matched the description the officer had been given of the prowler. The officer's police radio squawked revealing his presence, whereupon appellant hastily left his position at the window. Although appellant did not run as the officer approached, his pace continuously quickened as the officer moved toward him. The officer caught up with appellant at a car. Appellant denied ownership of the car and denied having keys in his hand. When asked to explain his reason for being in the apartment complex, appellant told the officer he had gone to ask a classmate about the time scheduled for an exam. He was unable, however, to give the name or address of the classmate. When appellant pointed in a direction away from the particular building where his classmate purportedly lived, the officer arrested him for loitering and prowling. Appellant's account of the circumstances of his arrest differs somewhat from that of the officer. Appellant said he left his apartment at 12:30 a.m. to pick up computer printouts at school and he intended to stop by a classmate's apartment to ask when exams were scheduled in the class. He had never been to the apartment before and did not know the classmate's last name, so he had trouble locating her apartment. At some point during his walk through the apartment complex, appellant stooped or crouched down and looked in an open apartment window. Appellant said that after he looked in the window, he noticed a police officer with a walkie-talkie *897 crouched down by a telephone pole. As appellant walked towards his car, the officer approached him. Appellant explained that he did not know his friend's last name and was uncertain about the apartment. He explained that the car he was about to get in was a rental car, and he told the officer he did not have keys in his hand because he had put them in his pocket. The officer placed appellant under arrest within two minutes or less after he approached him at the car. The officer arrested appellant for loitering and prowling, because the answers appellant gave to his questions were too imprecise and so insufficient to be considered truthful. When asked whether he had made the arrest on the basis of an inarticulable hunch, the officer explained that when he first observed appellant, he immediately thought appellant was the suspect in a rape investigation he had been conducting. The officer then agreed that it was an inarticulable hunch, since he could not explain why he felt as he did. Appellant was given the Miranda rights, both at the car at the time of the arrest, and again at the police station. Appellant maintains that he asked to see a lawyer, and the arresting officer told him he could have an attorney but if he elected to go that route the officer would "throw the book at him." According to appellant, the officer then told him he recognized that appellant had psychological problems. Appellant said the officer told him he was a "new school" officer, that he was interested in helping appellant with his problems, that he would help appellant obtain release on his own recognizance, and that he would help appellant obtain probation. In addition, appellant maintains the detectives and the arresting officer told him that tape recording his statements would not only assist in a court proceeding, but could be used by a psychiatrist to determine the nature of his stress. Appellant contends he trusted the officers and relied upon their representations. Again, the officers' version of the events surrounding the circumstances of appellant's incriminating statements differs from that of appellant. The officers note appellant was given his Miranda warnings not once, but several times, and he indicated he understood the rights available to him. The officers contend appellant did not request an attorney, and though the officers acknowledge the arresting officer promised to do everything he could to help, the discussions concerning offers of psychiatric help and promises to do everything possible to help him occurred in the context of the "entire realm of possibilities" attendant upon disposition of the case. According to the officers, these discussions occurred after appellant had made incriminating statements. The officers testified that no promises were given, and note that appellant read and signed a form waiving his right to consult an attorney. The psychiatrist appointed by the court to evaluate appellant's psychological status testified that at the time appellant talked with the investigators, he was primarily motivated by his desire to get help. The psychiatrist testified further that appellant was peculiarly susceptible to suggestions that psychological counseling could be made available to him. In the psychiatrist's opinion, appellant would not have confessed if he had not been promised psychological help. The trial court ruled the initial stop and arrest was valid and legal, and that appellant's statements were made freely, knowingly and voluntarily. Appellant's arrest was predicated upon Section 856.021, Florida Statutes (1983), which provides: (1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. (2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement *898 officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern. (3) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Since loitering and prowling is a misdemeanor, only the officer's own observations will be considered in determining probable cause to arrest. S. 901.15(1), Fla. Stat. (1983); State v. Ecker, 311 So.2d 104 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975); T.L.M. v. State, 371 So.2d 688 (Fla. 1st DCA 1979); Springfield v. State, 481 So.2d 975 (Fla. 4th DCA 1986). Upon observing conduct which the officer considers suspect, he must then "`be able to point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant' a finding that a breach of the peace is imminent or the public safety is threatened." State v. Ecker, 311 So.2d at 109, quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). To justify an arrest pursuant to Section 856.021, proof as to both elements of the statute must be established. B.A.A. v. State, 356 So.2d 304, 306 (Fla. 1978); State v. Ecker, 311 So.2d at 110; Patmore v. State, 383 So.2d 309, 310 (Fla. 2d DCA 1980). In the instant case, a consideration of appellant's conduct in light of the factors which have been upheld as supporting an arrest for loitering and prowling demonstrates first, that appellant's suspect conduct was observed by the arresting officer; second, appellant matched the description of a reported trespasser; and third, appellant's explanation for his presence at the apartment complex lacked sufficient specificity to assure the arresting officer of its truth. We find that in the circumstances of this case, there was probable cause to arrest. To be admissible, a confession or incriminating statement must be made voluntarily. Brewer v. State, 386 So.2d 232, 235 (Fla. 1980). The voluntariness of a confession is measured by the fifth amendment privilege against self-incrimination in state prosecutions as in federal. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The appropriate inquiry for a determination of voluntariness was set forth in Bram v. U.S., 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), and provides that: a confession, in order to be admissible must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises however slight, nor by the exertion of any improper influence... . A confession can never be received by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted. See also Brewer v. State, 386 So.2d at 235; Hawthorne v. State, 377 So.2d 780, 784 (Fla. 1st DCA 1979); State v. Kettering, 483 So.2d 97, 98 (Fla. 5th DCA 1986). It is the state's burden to prove, by a preponderance of the evidence, that the statement was made voluntarily. Brewer v. State, 386 So.2d at 236; Wiley v. State, 427 So.2d 283 (Fla. 1st DCA 1983); Gaspard v. State, 387 So.2d 1016 (Fla. 1st DCA 1980); State v. Kettering, 483 So.2d at 98. One aspect of the voluntariness, hence admissibility, of a confession or incriminating *899 statement, is the waiver of the right to assistance of counsel during custodial questioning. The threshold inquiry with regard to waiver is whether the right to counsel was ever invoked. Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). If an accused has in fact invoked the right to have counsel present during custodial questioning, then — a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378, 386 (1981). In Cannady v. State, 427 So.2d 723, 729 (Fla. 1983), the court held the stricter standard of Edwards v. Arizona can be overcome by showing that an accused has knowingly and intelligently waived a previous request for counsel when he voluntarily executes a written waiver. Similarly, in Waterhouse v. State, 429 So.2d 301, 305 (Fla.), cert. denied, 464 U.S. 977, 104 S.Ct. 415, 78 L.Ed.2d 352 (1983), the court found Edwards was not applicable "because appellant did not express a desire to deal with the police only through counsel." And in Norris v. State, 429 So.2d 688, 689 (Fla. 1983), the court held that although "[i]nvestigating officers must respond affirmatively to a request for counsel, ... they are not required to try to convince a defendant that he needs an attorney." We conclude that under the circumstances, the trial court could have concluded that appellant did not request assistance of counsel during interrogation. The transcript of the suppression hearing indicates appellant testified that after he had been transported to the police station, he asked to see a lawyer. Controverting testimony was provided by the officers, who stated unequivocally that although appellant asked the officers if they thought he should have a lawyer — he did not request counsel. Consistent with the officers' assertion is record evidence that appellant telephoned his wife and advised her that he did not get a lawyer because he believed the police were going to help him. Corroborative evidence that appellant did not invoke the right to counsel is the fact that he signed a written waiver of the right to counsel. The voluntariness issue is more difficult to resolve. It is undisputed that the officers discussed the possibility of treatment at North Florida Evaluation and Treatment Center, and that the arresting officer promised appellant he would do everything he could to make sure appellant received psychiatric help. Nevertheless, the trial court was persuaded that all discussions concerning offers of help were held in the context of the ultimate disposition of the case and after appellant had confessed. It is well settled that the ruling of the trial court on a motion to suppress comes to the reviewing court clothed with a presumption of correctness and that "the reviewing court will interpret the evidence and reasonable inference derived therefrom in a manner most favorable to sustain the trial court's ruling." McNamara v. State, 357 So.2d 410, 412 (Fla. 1978). We cannot say as a matter of law, that the trial court erred in finding the appellant's statements were made voluntarily. Therefore, the trial court's ruling on the motion to suppress is affirmed. ZEHMER, J., and CAWTHON, VICTOR M., Associate Judge, concur.

68 P.3d 1232 (2003) Jerry L. CONNER, Appellant, v. Margaret CONNER, Appellee. No. S-10273. Supreme Court of Alaska. April 18, 2003. *1234 William T. Ford, Anchorage, for Appellant. Maurice N. Ellis, Law Offices of Maurice N. Ellis, Anchorage, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices. OPINION MATTHEWS, Justice. I. FACTS AND PROCEEDINGS After a marriage of twenty-nine years, Jerry and Margaret Conner separated on August 13, 1999. Their divorce trial was held on December 14, 2000. The main issue in this appeal is the division of retirement benefits. During the marriage, Jerry worked as an air traffic controller for the Federal Aviation Administration. He became disabled in 1995 at the age of forty-two. Jerry initially took a disability retirement, but in 1996 he began collecting federal workers' compensation benefits instead, because the workers' compensation benefits were greater and were tax free. Retirement benefits were $2,428 per month, whereas the workers' compensation benefits were approximately $4,100 every four weeks. Upon divorce, Jerry's workers' compensation benefits were reduced to approximately $3,850 every four weeks. In the divorce trial, the superior court allocated to Margaret what would have been her monthly share of the retirement benefits from the day of separation to the day of the divorce trial. This was $19,424, one-half of $2,428 times the sixteen months between separation and trial.[1] But this amount appears not to have been used in the trial court's ultimate property division calculations. In addition, the court awarded half of Jerry's workers' compensation payments to Margaret for the next four years. After the four-year period the award to Margaret was reduced to $1,214, one-half of the imputed retirement payments. During the parties' separation, Margaret was awarded exclusive use of the couple's house. Jerry was ordered to continue to make payments of $1,288 on the home equity loan that was secured by both the house and by their truck. The court also ordered Jerry to pay interim spousal support of $750 per month. In the property division, the court refused to credit Jerry for the loan payments. Jerry was awarded the truck and Margaret the house, but the court allocated the entire remaining $50,000 debt to the house, thus reducing Margaret's net assets by $50,000 and showing Jerry's truck as free and clear. The trial court also ordered Jerry to designate Margaret as the sole beneficiary of any life insurance he carries, and ordered the parties to split the cost of obtaining survivor benefits for Margaret, should Jerry ever elect to receive his retirement benefits. Jerry challenges these actions on appeal. II. STANDARDS OF REVIEW A. Property Division The trial court has broad discretion to make a property division in the manner it determines to be most equitable; this court will not overturn a property division unless it *1235 is clearly unjust.[2] A three-step process is used to divide marital assets.[3] First, the court determines what specific property is available.[4] Second, the court values that property.[5] Finally, the court equitably allocates the property.[6] The division of property is reviewed for abuse of discretion except that any legal questions that might be involved are reviewed de novo.[7] An equal division is presumed to be most equitable absent findings that warrant an unequal division.[8] B. Findings of Fact Findings of fact will only be set aside if they are clearly erroneous,[9] that is, if this court is left with "a definite and firm conviction on the entire record that a mistake has been made."[10] III. DISCUSSION A. The Superior Court Erred in Its Treatment of Jerry's Retirement Benefits. 1. Only a portion of Jerry's workers' compensation benefits replaces his retirement benefits and only that portion should be classified as marital property. Jerry argues that his workers' compensation benefits are his separate property and that the superior court erred when it awarded one-half of these benefits to Margaret. He is partly correct. Workers' compensation payments or disability retirement payments represent income replacement.[11] After divorce, they are regarded as the separate property of the spouse to whom they are paid.[12] In contrast, retirement benefits earned during the marriage are marital property subject to equitable division.[13] But once Jerry's pension matures,[14] Margaret will be entitled to one-half of his retirement benefits.[15] Until then, Jerry's workers' compensation award is a form of income replacement in which Margaret has no interest. Because a portion of Jerry's workers' compensation income will be a substitute for Jerry's regular retirement benefits after maturity of his pension, this portion should be viewed as marital property and divided. Otherwise, when Jerry takes workers' compensation benefits in lieu of matured retirement benefits, Margaret will be deprived of a valuable marital asset. We thus hold that the imputed retirement portion of this income stream must be separated from the disability-related portion, with the former divided as marital property and the latter left as the employee spouse's separate property. Other courts are in accord.[16]*1236 For example, the Washington Court of Appeals has stated that if the employee spouse "would be receiving retirement benefits but for a disability, so that disability benefits are effectively supplanting retirement benefits, the disability payments are a divisible asset to the extent they are replacing retirement benefits."[17] Likewise, the Supreme Court of Rhode Island held: [W]here the employee spouse elects to receive disability benefits in lieu of a matured right to retirement benefits, only the net amount thus received over and above what would have been received as retirement benefits constitutes compensation for personal anguish and loss of earning capacity and is, thus, the employee spouse's separate property. The amount received in lieu of matured retirement benefits remains... property subject to division on dissolution.[18] It follows that the court's allocation of $19,424 to Margaret, representing one-half of the retirement benefits from the time of separation to the time of trial, was erroneous because the pension had not yet matured.[19] However, this error appears to be harmless because no order ever effectuated the award of $19,424. To the extent that the award of one-half of the workers' compensation benefits for four years following the date of trial represents an award of Margaret's share of pension benefits, the award is also erroneous until the date of maturity. But for the reasons discussed below, it is possible that some or all of this award may be justified on other grounds.[20] At the end of four years, the trial court required Jerry to begin paying Margaret $1,214, half of his imputed monthly retirement benefits. This was proper because Jerry's pension will have matured when this aspect of the order becomes effective. 2. Jerry's fiftieth birthday is an appropriate maturity date. Jerry contends that the applicable maturity date of the retirement benefits should be July of 2009, when he turns fifty-six. He contends that this was his earliest reasonably expected retirement date because air traffic controllers cannot serve beyond the age of fifty-six. Margaret argues that Jerry's retirement benefits should be considered to be mature as of Jerry's fiftieth birthday. The statute governing Jerry's retirement age is 5 United States Code § 8412(e), which provides that an employee is entitled to retirement benefits (1) after completing twenty-five years of service as an air traffic controller, or (2) after becoming fifty years of age and completing twenty years of service as an air traffic controller. Because of the disability that Jerry suffered beginning in 1995, he will never have twenty years of service as an air traffic controller. But he would have had twenty years of service as an air traffic controller before reaching the age of fifty had he not been disabled. Therefore the earliest date that the parties could have been expected to begin receiving the pension—again absent the disability—would have been on Jerry's fiftieth birthday. This should mark the earliest possible maturity date and thus, the earliest point at which Margaret had any expectation of realizing benefits from the pension. The trial court found that Jerry could have elected to receive retirement benefits in 1995, *1237 after he became disabled. But Jerry could only receive retirement benefits if he did not receive workers' compensation. Jerry was not eligible for regular retirement at the age of forty-two when he became disabled, or at the time of trial when he was forty-seven. Until the maturity of his pension—2003 at the earliest—Jerry's retirement benefits are wage replacement payments. Use of the earliest maturity date has been found to be proper in order to protect the nonemployee spouse.[21] While choosing the earliest maturity date may not be required,[22] it is not an error to make such a choice and it is evident that here the trial court intended to choose the earliest possible date. We conclude therefore that the maturity date that should be used in this case is Jerry's fiftieth birthday. This is the date when the workers' compensation payments should be considered to include pension payments that are subject to division. 3. The award to Margaret may be justified as rehabilitative spousal support. Margaret argues that the superior court's award of one-half of the workers' compensation benefits for four years may be justified as rehabilitative alimony. Rehabilitative alimony may be appropriate when one spouse is exiting the marriage with few job skills and limited earning capacity.[23] An award of rehabilitative alimony should be designed to support the spouse while she receives the training and education necessary for her to become self-supporting.[24] A number of the findings made by the trial court suggest that the court in making the award in question was motivated at least in part by considerations relevant to rehabilitative alimony. The court noted that Margaret did not pursue a career during the marriage and instead raised the parties' two children. Her earning capacity at the time of trial was roughly $10,000 per year, and she was unable to find satisfactory year-round employment. Margaret is currently enrolled in an engineering program from which she should graduate in 2005, and Jerry was ordered to pay her one-half of his workers' compensation benefits until then. In this case, the award was explicitly a part of the property division ordered by the court and the court referred to it as such. The needs analysis typically required as an accompaniment of an award of rehabilitative alimony is not reflected in the court's findings.[25] We therefore conclude that the four-year award cannot be affirmed based on the current findings. On remand the court may consider whether rehabilitative alimony is appropriate and, if so, may make an award accompanied by appropriate findings. B. The Superior Court Did Not Err in Failing To Separately Allocate the Debt on the Truck and the House. Jerry argues that the trial court erred by failing to divide the liability between *1238 the house and the truck. The trial court made Margaret responsible for paying the entire amount of the note and allocated it entirely to the house. Jerry contends that this has the effect of distorting the value of the truck which was awarded to him. In the court's calculation the truck was valued at $23,000 free and clear. Jerry contends that in reality the truck is encumbered and cannot be sold. Although Jerry is correct that his truck will not be saleable until the note is paid, and although it would have been preferable to have allocated a part of the note to the truck and a part to the house, he did not demonstrate that this could actually be done.[26] The security holder would not necessarily agree to a novation releasing part of the security or one of the jointly responsible parties. Further, vehicles have value even if they are not saleable, as the popularity of long-term leasing of vehicles illustrates. Finally, the trial court found that the note should be paid off within three and one-half years of the hearing. If this is done, Jerry's truck will then be free and clear. We conclude based on these considerations that the court did not err in failing to allocate some portion of the debt to the truck. C. The Superior Court Did Not Err by Refusing To Credit Jerry for His Post-Separation Payments on the Parties' Mortgage. Jerry also argues that the trial court erred in failing to give him credit for his interim house payments when he was already required to pay interim spousal support. Trial courts are required to consider payments made from one party's post-separation income to preserve marital assets, but are not required to give credit for such payments in the final property division.[27] This court has stated that "no fixed rule requiring credit in all cases should be imposed. Instead... payments from non-marital income to preserve marital property should be considered as one of the circumstances to be weighed by the trial court in dividing the marital property."[28] In this case, the trial court specifically considered Jerry's post-separation house payments. The court found that due to the parties' disparate incomes the payments were fair and it refused to give Jerry any credit for the payments. We have routinely upheld decisions where the trial court has denied credit for post-separation house payments because of the disparity in the parties' incomes.[29] Thus, the trial court did not err in refusing to give Jerry credit for the interim house payments. D. The Superior Court Erred in Requiring Jerry To Name Margaret as the Sole Beneficiary of His Life Insurance. The trial court ordered "to the extent that [Jerry] currently maintains life insurance, he must designate [Margaret] the sole beneficiary of his life insurance. The reason for this is to protect [Margaret] in the event that [Jerry] passes away before her right to collect the retirement benefits kicks in." No evidence was presented at trial regarding Jerry's life insurance. Jerry contends that this requirement is unnecessary because he has already made an election with the pension administrator that Margaret shall receive a survivor annuity which exceeds her current calculated share of the retirement amount in the event of his death. In his motion for reconsideration, Jerry submitted a letter from the federal office of personnel management which appears to verify his position that Margaret is adequately protected in the event of his death. This court has held that survivor benefits are an "intrinsic part of the retirement benefits earned during the marriage."[30]*1239 Accordingly, when dividing retirement benefits as part of the marital estate, trial courts must protect a spouse's interest in the retirement benefits either by requiring life insurance or by including a clause in the qualified domestic relations order (QDRO) requiring that survivor benefits be paid to that spouse.[31] In this case, the trial court ordered both life insurance and survivor benefits to protect Margaret's share of Jerry's retirement benefits without adequate findings to support such an order.[32] It would be inappropriate to require Jerry to name Margaret as the sole beneficiary of any life insurance policy if she is already adequately protected by the survivor annuity. On remand, we believe that the court should reconsider requiring life insurance in view of the evidence that indicates that it is not needed. IV. CONCLUSION REVERSED and REMANDED for further proceedings in light of this opinion. NOTES [1] The trial court made its calculations based on the sixteen months between the separation and divorce (1,214 × 16 = 19,424) but mistakenly said it was basing its calculations on a fourteen-month period. [2] Broadribb v. Broadribb, 956 P.2d 1222, 1225 (Alaska 1998) (quoting Cox v. Cox, 882 P.2d 909, 913-14 (Alaska 1994)). [3] Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983). [4] Id. [5] Id. [6] Id. [7] Johns v. Johns, 945 P.2d 1222, 1225 (Alaska 1997) (quoting Lundquist v. Lundquist, 923 P.2d 42, 47 (Alaska 1996)); Cox, 882 P.2d at 913. [8] McDougall v. Lumpkin, 11 P.3d 990, 993 (Alaska 2000). [9] Alaska R. Civ. P. 52(a). [10] Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998) (internal citation omitted). [11] Miller v. Miller, 739 P.2d 163, 165 (Alaska 1987). [12] Id. [13] Edelman v. Edelman, 3 P.3d 348, 356 (Alaska 2000). [14] Maturity refers to the earliest point at which the worker can receive retirement benefits. See Laing v. Laing, 741 P.2d 649, 655 n. 8 (Alaska 1987). [15] We refer here to the payment-upon-receipt method for dividing pension payments. This method was used by the trial court. The other method is to calculate the marital property portion of a pension's present value and take that into account in the property division. Id. at 656-57. [16] See Levy v. Office of Pers. Mgmt., 902 F.2d 1550 (Fed.Cir.1990) (applying California law and holding that the component of a disability pension that is based on longevity of service is subject to division but the remainder is the disability component and is separate property); Villasenor v. Villasenor, 134 Ariz. 476, 657 P.2d 889 (Ariz. App.1982) (separating the "disability component" from the "retirement component" of a civil service disability retirement annuity); In re Marriage of Castor, 249 Mont. 495, 817 P.2d 665, 669 (1991) (civil service disability pensions can have both a "retirement" component and a "disability" component, here the annuity was characterized as "retirement" benefits); Ciliberti v. Ciliberti, 374 Pa.Super. 228, 542 A.2d 580 (1988) (where part of the disability pension represents retirement benefits, that part remains marital property subject to distribution); Allard v. Allard, 708 A.2d 554 (R.I.1998) (a disability pension that serves to replace a retirement pension is divisible to the extent that it replaces the retirement portion). Allard lists additional jurisdictions in accord. Id. at 558. [17] In re Marriage of Geigle, 83 Wash.App. 23, 920 P.2d 251, 255 (1996). [18] Allard, 708 A.2d at 558 (quoting In re Marriage of Stenquist, 21 Cal.3d 779, 148 Cal.Rptr. 9, 582 P.2d 96, 101 (1978)). [19] See discussion infra A.2. [20] See discussion infra A.3. [21] A Massachusetts court stated: [The nonemployee spouse] argues that for purposes of computing present value in the context of divorce proceedings, a court should assume the earliest possible retirement date for the spouse with the pension. Some courts have thought this a sound principle. See In re Marriage of Gillmore, 29 Cal.3d 418, 174 Cal. Rptr. 493, 629 P.2d 1 (1981). The point, adverted to in the Gillmore opinion at 424-425 [174 Cal.Rptr. 493, 629 P.2d 1], is that the spouse with the retirement benefits should not be able to manipulate them to impair the other spouse's benefits. Dewan v. Dewan, 30 Mass.App.Ct. 133, 566 N.E.2d 1132, 1134 (1991) (citations omitted). [22] See id. "In general, fair value analysis assumes norms.... There is no distortion if a judge chooses a retirement age that is the norm" rather than "the earliest possible retirement age." Id. [23] See Myers v. Myers, 927 P.2d 326, 329 (Alaska 1996). [24] Id. at 329 (citing Ulsher v. Ulsher, 867 P.2d 819, 822 (Alaska 1994)). [25] See AS 25.24.160(a)(2). See, e.g., Dixon v. Dixon, 747 P.2d 1169, 1174 (Alaska 1987) (remanding case for specific findings because spouse's "vague education plans" did not support trial court's award of rehabilitative alimony); Miller v. Miller, 739 P.2d 163, 165 (Alaska 1987) (rejecting alimony award absent specific findings as to whether wife intended to use alimony for job training); Carlson v. Carlson, 722 P.2d 222, 225 (Alaska 1986) (requiring trial court to reconsider alimony award and to state reasons for its decision); see also Jones v. Jones, 835 P.2d 1173, 1178-79 (Alaska 1992) (requiring superior court to make specific findings regarding spouse's financial needs when awarding spousal support). [26] Jerry asserted at trial that he had researched dividing the note and that it could be done, but he failed to provide the court with a practical method to accomplish the division. [27] Ramsey v. Ramsey, 834 P.2d 807, 809 (Alaska 1992). [28] Id. [29] Dodson v. Dodson, 955 P.2d 902, 912 (Alaska 1998) (upholding trial court's refusal to grant credit to husband for post-separation house payments because the parties had highly disparate incomes); Harrelson v. Harrelson, 932 P.2d 247, 253 (Alaska 1997) (same). [30] Zito v. Zito, 969 P.2d 1144, 1147 (Alaska 1998) (internal quotations and citation omitted). [31] See McDougall v. Lumpkin, 11 P.3d 990, 996 (Alaska 2000) ("Here, [the wife] either needs life insurance to protect her interest ... or a clause in the QDRO [ensuring her the survivor benefits]."). [32] First, the trial court's order dividing the federal retirement plan awards Margaret the maximum former spouse survivor annuity, plus 100% of the balance of any retirement funds if Jerry should die, plus the maximum death benefit as allowed by law. The court's order and findings also state that if and when Jerry elects to receive his retirement pay, Margaret and Jerry will split equally the costs of obtaining survivor benefits for Margaret. Second, the trial court also ordered Jerry to designate Margaret as the sole beneficiary on any life insurance Jerry maintains "to protect [Margaret] in the event that [Jerry] passes away before her right to collect the retirement benefits kicks in."

(2008) Howard MORRIS, et al., Plaintiffs, v. ADT SECURITY SERVICES, et al. Case Nos. 07-80950-CIV, 07-81074, 07-81220. United States District Court, S.D. Florida. October 3, 2008. ORDER ON ADT'S MOTION TO DISMISS DONALD M. MIDDLEBROOKS, District Judge. Plaintiffs commenced this purported class action suit against Defendant, ADT, alleging (1) a violation of Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. § 501.201 ("Count I") and (2) unjust enrichment (Count II).[1] Before me now is Defendant's Motion to Dismiss the Complaint. BACKGROUND[2] ADT is a burglar and fire alarm system company with its headquarters and principal place of business in Boca Raton, Florida. ADT sells and installs alarm systems, and provides monitoring services for customers throughout the United States. The alarm systems have a back-up component which relies on cellular phones to transmit an alarm in the event that the primary land line fails for some reason. It is the cellular-based back-up systems which at are issue in the instant litigation.[3] Plaintiffs allege as follows: From 2002 to 2006, the alarm systems that ADT sold to customers relied on analog, as opposed to digital, cellular back-up signals to transmit alarm signals to monitoring locations. In 2002 the Federal Communications Commission ("FCC") determined that cellular carriers would no longer be required to maintain analog service lines and ruled that cellular companies were no longer required to continue to carry analog cellular signals (the "2002 Ruling"). The FCC allowed for a "sunset" period to enable companies whose products relied on analog-based cellular signals to transition their products to work with digital-based cellular signals. As a result of the 2002 Ruling, and with its knowledge of the industry, ADT knew in 2002 that its analog-based equipment would stop working properly at some point in February 2008 (the analog sunset date, hereinafter the "ASD"). The crux of Plaintiffs' Complaint is that, despite its awareness of the ASD, ADT continued to sell analog-based equipment to its customers, without informing them that their back-up system would not be functional Plaintiffs assert that ADT intentionally concealed this information from customers. Plaintiffs quote the FCC's findings that: Members of the alarm industry have long been aware of the approaching sunset date, yet continued to install analog radio equipment as recently as 2006. The alarm industry cannot now shift the responsibility and expense for its business decisions to the cellular industry and wireless consumers through regulatory arbitrage. In 2007, ADT informed its customers that their cellular systems would stop working properly In February 2008, and urged its customers to pay several hundred dollars in order to upgrade to digital systems. Plaintiffs argue that because ADT chose to conceal this "material fact" from customers and to shift the responsibility to customers to pay for the upgrade, Plaintiffs and hundreds of thousands of individuals and entities across the country have had to pay to purchase new equipment or are left security systems that do not work properly. Plaintiffs allege that it was in Palm Beach County, where ADT's senior-level management made the decision to conceal the fact that its cellular backup system would stop working in February 2008. Plaintiffs contend that ADT generated revenue as a result of this decision, and that this revenue flowed to Florida, where Plaintiffs made payments to ADT. Furthermore, Plaintiffs assert that any communication that was made with customers was generated in and disseminated from Florida. Finally, Plaintiffs contend that ADT was unjustly enriched from its deceptive and unfair trade practices that originated in Florida. LEGAL STANDARD In a motion to dismiss, whether it is a motion to dismiss for lack of subject matter jurisdiction or for failure to state a claim, the Court is required to construe the complaint in the light most favorable to the plaintiff, and accept all the facts alleged by the plaintiff as true. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990) (stating that a facial, as opposed to a factual, attack on whether or not a Plaintiff has sufficiently alleged a basis for subject matter jurisdiction under Rule 12(b)(1) is decided using the same standard as a Rule 12(b)(6) motion for failure to state a claim). However, a complaint "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (citation omitted). Factual allegations in a complaint need not be detailed but "must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1964-65 (citations omitted). Regardless of the alleged facts, a court may dismiss a complaint on a dispositive issue of law. Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993). When, on the basis of a dispositive issue of law, no construction of the factual allegations of a complaint will support the cause of action, dismissal of the complaint is appropriate. Powell v. United States, 945 F.2d 374 (11th Cir.1991). DEFENDANT'S MOTION TO DISMISS In it Motion to Dismiss, ADT argues that Plaintiffs' FDUTPA claim fails as a matter of law, because (1) in its 2002 Ruling, the FCC predicted that cellular carriers would continue to provide analog service after the sunset period, therefore, ADT was under no duty to inform its potential customers of the existence of the sunset date; (2) the claims are barred because Plaintiffs entered into written contracts with ADT; and (3) Plaintiffs are unable to plead essential elements of their claims, because ADT had no duty to inform prospective customers about a law that was published in the Federal Register or to offer predictions about what thirdparty cellular carriers might do in the future. ADT additionally asserts that the Plaintiffs' unjust enrichment claims fail both because of the written contracts and also because they have not alleged the absence of an adequate remedy at law, which is an essential element of an unjust enrichment claim. As stated above, the alarm systems that ADT monitors and installs generally send signals from the customers' premises to ADT monitoring centers through traditional wire line telephone systems. However, as an additional part of its service offering, ADT states that it offers wireless cellular backup to send alarm signals should the traditional telephone line system fail. ADT asserts that the equipment that it monitors and installs is manufactured by third-parties which means that it, ADT, does not manufacture cellular equipment or operate telephone networks, and that it therefore is not regulated by the FCC. In September 2002, the FCC released a report which provided that the sunset of the analog requirement would "not preclude carriers from continuing to provide analog service." The FCC went on further to say, "we do not anticipate, as a general matter, carriers will immediately discontinue such service as it is reasonable to conclude that analog service will continue to be available as long as consumers demand it." Thus, ADT argues that it did not have an obligation to disclose the sunset date to customers, as carriers were required to support analog service until February 18, 2008, and some providers were expected to sell and support analog devices even after that date. The FCC did not require cellular carriers to disclose their post-sunset plans for analog service until 2006. In 2006, two regional carriers disclosed to the FCC that they planned to terminate their analog services. ADT argues that it did not know until then, that its customers who relied on analog systems would have their alarm services disrupted. Defendant contends that on October 4, 2006, to minimize the risk to customers that would be affected by the sunset of analog devices, it asked the FCC to extend the sunset date. ADT posted a press release on its website the next day, expressing concern that the regulatory sunset could affect alarm service for hundreds of thousands of Americans who rely on analog-based equipment. On June 15, 2007, the FCC announced that it declined to extend the sunset date. ADT asserts that the FCC further stated that cellular providers could continue to provide analog services, but since a number of cellular providers had informed the FCC that they intended to discontinue analog service shortly after the sunset date, it was time to notify analog subscribers of the sunset date. ADT argues that Plaintiffs' Complaint should be dismissed, because the FCC's report, upon which the Complaint is premised, contradicts Plaintiffs claims. ADT contends that its decision not to warn customers of the sunset date for analog technology was not unfair or deceptive, because it did not have an obligation to warn the customers that analog service would stop working after the sunset date. Given the FCC's report, released on September 24, 2002, predicting that analog devices would continue to work after the regulatory sunset, ADT contends that it could not have possibly been required to inform customers that their equipment would not work properly after the sunset period, especially considering that the actions of the cellular carriers were out of ADT's control. I find that the Plaintiffs have properly alleged a claim under FDUTPA. Fla. Stat. § 501.204(1). A Plaintiff can sustain an action under the statute if a reasonable consumer acting in the same circumstances would likely be deceived by a company's business practice. Romano v. Motorola, Inc., 2007 WL 4199781, *1 (S.D.Fla., November 26, 2007); citing Davis v. Powertel, Inc., 776 So.2d 971, 974 (Fla. 1st DCA 2001). The Complaint alleges that ADT sold a security system from 2002 through 2006, that it knew would stop working properly in 2008, without disclosing this fact to customers, and then decided to charge customers to upgrade the system so that it would work as originally promised, is sufficient to state a claim under FDUTPA. Additionally, a duty to disclose is not an element of FDUTPA. Plaintiffs argue that FDUTPA is intended to be read broadly, and "imposes a general duty upon businesses to act in a manner that is not unfair or deceptive." See Fla. Stat. § 501.202(2) ("The provisions of this part shall be construed liberally to promote the following policies: To protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.") Specifically, Plaintiffs argue that the "unfairness" aspect of FDUTPA would not require a duty to disclose in order to bring a claim under the Act. Id. at 7; Citing FTC v. Sperry & Hutchinson Co., 405 U.S. 233 n. 5, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972) (stating that FTC unfairness analysis is not tied to the deception standard). Although FDUTPA sets out particular acts and practices that are "per se" violations of the Act, Plaintiffs argue that these acts and practice are not exclusive. Id. at 6; Mack v. Bristol-Myers Squibb Co., 673 So.2d 100, 104 (Fla. 1st DCA 1996) ("While paragraphs (a) through (c) of subsection 501.203(3) set forth possible violations which would permit recovery under the Florida DUTPA, it is clear that the legislature did not intend the list to be exclusive."). Moreover, Plaintiffs assert that ADT's suggestion that it had no duty to disclose to customers that its product would stop working properly in 2008, because the product's failure was a result of a change in the law, is irrelevant to their FDUTPA claims. I agree. This case is virtually identical to Atlass v. Mercedes-Benz USA LLC, 2007 WL 2892803 (D.N.J. Sept. 25, 2007). In Atlass, which while an unpublished district court opinion having no precedential weight upon this Court, the Plaintiffs similarly filed a suit against a car manufacturer for selling cellular-based navigation type system despite the 2002 Ruling. The Atlass court declined to dismiss a consumer fraud claim that was based on failure to disclose to customers a change in the FCC rules. The court stated: Defendant's first argument on this score, that it did not engage in wrongful or unlawful conduct because it had no duty to inform Plaintiff of changes in FCC rules, falls short. Plaintiff's allegations are not simply that Defendant did not inform him of the FCC rule change, but rather that Defendant, knowing of the FCC's decision to end the requirement that wireless carriers provide an analog network, continued to market the analog Tele Aid system without informing consumers of its potentially brief life span. The Court has concluded that these contentions sufficiently allege wrongful conduct on the part of the Defendant. I find the reasoning in Atlass persuasive, and given the nature of a 12(b)(6) claim, I find that Plaintiffs have adequately alleged a claim under Florida's Deceptive and Unfair Trade Practices Act.[4] ADT next asserts that the each Plaintiff executed a contract with it, and so dismissal of their Plaintiffs' Complaint is warranted. Specifically, ADT argues that no FDUTPA or unjust enrichment claim can proceed where the allegedly "deceptive" or "unjust conduct" is consistent with a valid contract between the plaintiff and defendant. ADT contends that Plaintiffs' contracts with it provide that Plaintiffs will bear the risk that the carriers' technology will change, and; therefore, Plaintiffs' FDUTPA claims should be dismissed. ADT points to provisions in the contracts, that state that Plaintiffs would pay ADT "to reprogram the system if necessary," for increases in its "cost for facilities used for transmitting alarm signals," and that ADT could pass on charges to the Plaintiffs from the "telephone or signal transmission company" and could increase charges after one year of service. The Plaintiffs' contracts with ADT also provide that they will not rely on ADT's "advice or advertisements." ADT relies on University of Miami v. Intuitive Surgical, Inc., 166 Fed.Appx. 450 (11th Cir.2006). In University of Miami, the University of Miami sued the seller of a robotic surgical device for breach of contract, promissory estoppel, and several fraud-based claims under FDUTPA, claiming, among other things, that the seller provided the University with an obsolete surgical system. The University of Miami Court held that there was a valid contract between the parties and under that contract, the defendant in the case did not have an obligation to continue to manufacture the product. And so, the Court dismissed the FDUTPA claim as barred by the existence of the contract. Defendant presents Berry v. Budget Rent a Car Systems, Inc., 497 F.Supp.2d 1361 (S.D.Fla.2007), in further support of its assertion that the existence of a contract requires dismissal it the Plaintiffs' FDUTPA claim. In Berry, the plaintiff signed a rental agreement which provided that it would pay cost recovery fees in a certain amount, which the plaintiff later claimed to be fraudulent because the fees did not get applied to any "cost recovery." The Court held that because the fees at issue were within the scope of the parties rental agreement. The court considered the fact that the plaintiffs had agreed to pay the rental charges as well as the fee at issue in exchange for using the car. Id. at 1369. ADT's reliance on these cases is misplaced. "Contractual limitation of remedies is an affirmative defense, and is not a ground upon which [a] consumer's complaint can be dismissed." In re America Online, Inc., 168 F.Supp.2d 1359, 1367 (S.D.Fla.2001), citing Tamiami Partners, Ltd. v. Miccosukee Tribe, 177 F.3d 1212, 1220 n. 5 (11th Cir.1999). Plaintiffs, as I stated above, have adequately pled a claim under FDUTPA. I am not prepared at this juncture to find that Plaintiffs may not later properly claim that the contracts ADT rely upon are void as having been procured through the deceptive and unfair trade practices of ADT. ADT's claim that Plaintiffs unjust enrichment should be dismissed because of the contracts is similarly misplaced. While it is true that a claim of unjust enrichment cannot stand where there exists a valid contract, I find dismissal of this count premature for the same reason that I find it premature to dismiss Plaintiffs' FDUTPA claim at this point in time. In determining whether to grant a motion to dismiss under Rule 12(b)(6), a court may look only to the facts alleged in the complaint and not to evidence outside of the pleadings. Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir.2003); Malowney v. Federal Collection Deposit Group, 193 F.3d 1342 (11th Cir.1999); BB In Technology Co., Ltd. v. JAF LLC, 242 F.R.D. 632 (S.D.Fla.2007). Plaintiffs' Amended Complaint includes the following allegations: (1) ADT knew in August 2002 that its analog-based equipment would stop working on February 18, 2008; (2) Despite this knowledge, ADT continued to sell analog equipment to customers, without notifying those customers that its equipment would stop functioning on February 18, 2008; (3) ADT was aware of the FCC's proposed rule change and knew the change would result in wireless carriers ceasing to provide analog networks; and (4) ADT made the decision to charge customers to upgrade systems in order for the systems to remain functioning as they originally should have. Accordingly, Plaintiffs argue that ADT has improperly attempted to prevail on its Motion to Dismiss by raising several "factbased defenses" that are contrary to the facts alleged in their Complaint, and therefore, should be disregarded. For example, Plaintiffs contend that ADT's argument that it did not know its product would stop working, should be disregarded as a basis for its Motion to Dismiss, as it is contrary to Plaintiffs' allegations in their Complaint. They also assert that the additional documents that the FCC Rulings and individual contracts were not attached to their Complaint, and so may not properly be considered as a basis for the Motion to Dismiss. Given my findings set forth above, I find it unnecessary to address this contention. ADT lastly claims that Plaintiffs have not pled the essential elements for a claim of unjust enrichment. ADT states that Plaintiffs have not demonstrated the lack of an adequate remedy of law, which Defendant asserts is a legal prerequisite to pleading an unjust enrichment claim. As a result, ADT argues that Plaintiffs unjust enrichment claim should also be dismissed. Under Florida law, to prevail on a claim for unjust enrichment, a plaintiff must prove that (1) "the plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) the defendant has voluntarily accepted and retained the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff." Id.; Tooltrend, Inc. v. CMT Utensili, SRL, 198 F.3d 802, 805 (11th Cir.1999). Plaintiffs state that they have pled a proper claim for unjust enrichment, because they have alleged that (1) they conferred a benefit on ADT by paying to acquire its analog-based cellular product, that (2) ADT knowingly and voluntarily accepted that benefit by accepting the payments from Plaintiffs, and that (3) the circumstances are such that it would be inequitable for ADT to retain the benefit of the payments at their expense. Id. Furthermore, Plaintiffs assert that unlike other equitable claims, "an unjust enrichment claim may be maintained even though a remedy at law exists." Id. at 19; In re Wiand, 2007 WL 963165, *5 (M.D.Fla. March 27, 2007). Plaintiffs maintain that the cases that Defendant cited are different from this case, because in those cases the plaintiffs had asserted contract claims that conflicted with their unjust enrichment claims, and in this case the Plaintiffs have not asserted a contract claim. Id. Under Florida law, Plaintiffs contend that if a plaintiff "has not asserted a claim based on an express contract, his claim for unjust enrichment may proceed." Id.; Goldberg v. Chong, 2007 WL 2028792 at *9 (S.D.Fla. July 11, 2007). I agree that under the circumstances presented herein, dismissal is premature. Accordingly, for the reasons set forth above, it is ORDERED and ADJUDGED that the Motion (DE 25) be and is hereby DENIED. NOTES [1] Several procedural steps occurred wherein cases were transferred and consolidated into the instant action. An Amended Consolidated Complaint was filed and is the operative complaint in this matter. [2] The following recitation of facts are derived from the Plaintiffs' First Consolidated Amended Complaint. [3] All references to ADT's Alarm Systems in this Order are referring to the cellular-based back-up systems only unless otherwise indicated. [4] I make two observations here. First, the Complaint alleged a count under FDUTPA, and the "consumer protection laws" of other states. As such, I decline to address Defendants argument that the FDUTPA claim must be dismissed as against the out of state defendants because ADT did not establish that these out of state plaintiffs could not make out a valid claim under their respective consumer protection statutes. The second observation goes to ADT's assertion that the individual contracts' statute of limitations provision bars Plaintiffs from bringing their claims. I find that the Plaintiffs claims are timely.

348 F.Supp.2d 1112 (2004) J. DOE, Plaintiff, v. Alvaro RAFAEL SARAVIA; and Does 1-10, inclusive, Defendants. No. CIV-F-03-6249. United States District Court, E.D. California. November 24, 2004. *1117 Nicholas W. Van Aelstyn, Heller, Ehrman, White and McAuliffe, Matthew James Eisenbrandt, Center for Justice and Accountability, San Francisco, CA, Carolyn Patty Blum, Pro Hac Vice, Law Office of Carolyn Blum, New York, NY, for plaintiff. FINDINGS OF FACT AND CONCLUSIONS OF LAW[*] WANGER, District Judge. FINDINGS OF FACT 1. [REDACTED] 2. Pursuant to Order of the Court dated September 18, 2003, for good cause shown, Plaintiff has brought this case under the pseudonym J. Doe. 3. [REDACTED] 4. Plaintiff justifiably believes that El Salvador remains an extremely dangerous country and that if his role in bringing this case were widely known, he would be in danger. 5. The Plaintiff justifiably believes that he could not bring this case in the Courts of El Salvador, because no criminal investigation and prosecution were ever completed to identify the perpetrators of the assassination of Archbishop Romero. Further, based on the grant of amnesty to perpetrators, continuing unreliability of the Courts of El Salvador, including demonstrated hostility to imposing legal responsibility for the assassination of Archbishop Romero, Plaintiff justifiably believes that a fair and impartial hearing could not be received in the Courts of El Salvador. 6. The Plaintiff in good faith believes that he and his family, through the present time, may be subject to attacks for his role in this case and would not have brought the case except under the privilege of anonymity. 7. Plaintiff acknowledges that conditions have changed to the extent that his attorneys could meet with witnesses, who testified at trial in the United States, and gathered evidence which, in earlier years before the end of the civil war, was not possible. 8. Defendant Alvaro Rafael Saravia, a Salvadoran citizen, was born on February 16, 1946. Criminal Complaint, U.S. v. Alvaro Rafael Saravia Merino, 87-03598-CIV (S.D.Fla. Nov. 25, 1987), and supporting affidavit of Sharon L. Kegerreis, ¶ 5; Complaint for Extrajudicial Killing and Crimes Against Humanity, filed 9/12/03 ("Complaint"), ¶ 4. Saravia previously served as a captain in the Salvadoran Air Force. In 1979, he was separated from *1118 the Salvadoran military, and from that time worked closely with Major Roberto D'Aubuisson. 9. D'Aubuisson, at the direction of and in conjunction with elements of the Salvadoran armed forces and land-owning Salvadoran civilians inside and outside of El Salvador, founded the political movement Frente Amplio Nacional (the "FAN") and the political party Alianza Republicana Nacionalista ("ARENA"), and organized "escuadrones de la muerte," or "death squads," paramilitary organizations composed of military personnel and civilians who systematically carried out politicallymotivated assassinations and other human rights abuses in El Salvador. Complaint ¶¶ 4, 11-13. Saravia was an active member of these death squads and held the position of "chief of security" for Robert D'Aubuisson in 1980. Id.; Hr'g. Tr. 8/27/04 (Karl) 89:4-10.[1] 10. Saravia was resident in Modesto, California, in the Fresno Division of the Eastern Judicial District of California at the time this suit was filed. He continues to receive mail at 2401 Manor Oak Drive, Modesto, California 95355, and was served with process there. Proof of Service, filed January 9, 2004. 11. Public records connect Defendant, by his date of birth, to that address, and establish that Defendant is the same Alvaro Rafael Saravia, who was sought to be extradited by the U.S. Government to El Salvador in 1987-1988 to face charges, later dismissed, of his complicity in the assassination of Archbishop Romero. See Declaration of Lecia Smith, and Ex. A, filed 9/2/04 ("Smith Decl."). These records link Defendant to an earlier Florida address and a Social Security Number issued in Florida in 1985-1986. Id.; see also Supplemental Declaration of Mary Beth Kaufman, filed 9/2/04 ("Kaufman Decl"). 12. On September 12, 2003, Plaintiff filed a complaint against Saravia for violations of the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350, and the Torture Victim Protection Act ("TVPA"), Pub.L. No. 102-256 (1992) (codified at 28 U.S.C. § 1350, note) for his role in the March 24, 1980 assassination of Archbishop Romero in San Salvador, El Salvador. 13. Substitute service was effected on September 15, 2003, and October 18, 2003, by leaving a copy of the papers with Ines Olsson, the owner of 2401 Manor Oak Drive, Modesto, California 95355, the address at which Saravia was or had been residing and at which he was and is continuing to receive mail. The registered process server who served the Summons, Complaint and related papers, explained the general nature of the papers to Ms. Olsson at the time of personal service. Thereafter the papers were mailed on October 21, 2003, by a registered process server in the United States mail to Saravia at that address. 14. As of January 7, 2004, Defendant held recorded fictitious business names for Alo Fashion, Aquarius Enterprises, in the name of Alvaro Saravia, listing his business address as 2401 Manor Oak Drive, Modesto, California 95353. Personal records showed Defendant's listing of the same address as his address since at least 1997. 15. In a December 16, 2003, conversation, Ms. Olsson told M.B. Kaufman, a fellow and attorney for the Center for Justice and Accountability, that Alvaro Saravia had moved to Modesto in 1990, after conversations with Ms. Olsson and *1119 that Ms. Olsson "knew Mr. Saravia had been in the Air Force in El Salvador." 16. The Court entered Saravia's default by Order of the Clerk dated April 13, 2004. 17. Plaintiff applied for default judgment by the Court. In support of the application, Plaintiff filed declarations from numerous witnesses and presented live testimony at an evidentiary hearing held in open court on August 24-27 and September 3, 2004. The witnesses testifying at the hearing included The Reverend Canon William L. Wipfler, Ph.D.; Bishop Thomas J. Gumbleton; Amado Antonio Garay; Ambassador Robert White (by videotape deposition); Judge Atilio Ramirez Amaya; Professor Terry Lynn Karl; Maria Julia Hernandez; Father Jon Cortina, S.J.; Esther del Carmen Chavez Mancia; Francisco Acosta Arevalo; Father Walter Guerra; and Professor Naomi Roht-Arriaza. III. FACTUAL BACKGROUND: THE ROOTS OF THE CONFLICT IN EL SALVADOR A. COUNTRY BACKGROUND 18. The recent history of El Salvador has been defined by the concentration of the vast majority of land in the hands of a small group of wealthy landowners. This group is colloquially referred to s the "14 families," signifying that a small number of people hold great wealth and political influence in the country. Hr'g. Tr. 8/26/04 (Karl), 3:12-25; Ex. 98, March 15, 1993 Report of the United Nations Commission on the Truth in El Salvador ("TC Report") (Ex. 98), pp. 132-33. 19. Peasants and workers were constantly attacked in order to prevent them from organizing. These attacks culminated in a massacre in 1932 with more than 30,000 killed by military forces aligned with the landowners. This led to the imposition of a military regime that remained in power for more than 50 years, the longest military regime in the history of Latin America. Hr'g Tr. 8/26/04 (Karl), 2:6-25; TC Report, pp. 132-33. 20. A de facto alliance between the military and the oligarchs strengthened the oligarchs' grip on power. The military located their barracks on the property of these landowners and thereby controlled peasants and workers by repressing any opportunities for organization. By protecting their land and keeping the workers under control, the military served the landowner's interests opposing land reform. Hr'g Tr. 8/26/04 (Karl), 3:18, 4:1-25; TC Report, pp. 132-33. 21. The armed forces of El Salvador included an army and three security forces: the National Guard, the National Police and the Treasury Police. These three forces operated under the orders of the High Command but simultaneously served the landowners. The National Guard was traditionally the body of the security forces with the greatest presence in rural areas. Hr'g Tr. 8/26/04 (Karl), 16:1-25. B. The Rise of Paramilitary Forces. 22. In 1969 El Salvador went to war against Honduras in a border conflict better known as the "soccer war." Closing the borders eliminated a "safety valve" for Salvadorans unable to find work on the farms or in factories. This increased the pressure for land reform and the already extensive strength of the military and security forces. Hr'g Tr. 8/26/04 (Karl), 3:1-15; 6:19-7:21. 23. In response to new attempts by Salvadoran peasants to organize during the sixties and the emergence of some reformists within the military who favored land reform, the security forces created paramilitary groups to operate in rural areas. One of the main paramilitary *1120 groups was known as ORDEN. Colonel Jose Alberto Medrano, the former head of the National Guard, was the founder of ORDEN and oversaw more than 80,000 members, mostly civilians, throughout the country. Medrano also created the National Intelligence Agency of El Salvador (ANSESAL). Hr'g Tr. 8/26/04 (Karl), 3:18,17:1-25, 22:1-25, 23:1-25; TC Report, p. 133. 24. By 1979, the security forces and ORDEN had thoroughly consolidated thenpower, sowing terror among the civilian population. Not only were workers, peasants and priests targeted, teachers, union leaders, doctors, and other professionals were brutally repressed. Hr'g Tr. 8/26/04 (Karl), 68:1-25; TC Report, p. 133. C. The Emergence of Liberation Theology. 25. During the same time, the Catholic Church underwent a major transformation after a conference of bishops in Medellin, Columbia, S.A., in 1969, at which it was decreed that the church should focus on the needs of the poor. Because the Catholic Church had traditionally been aligned with the oligarchy in El Salvador, this new interpretation of theology, known as "Liberation Theology," was a significant change. Hr'g Tr. 8/26/04 (Cortina), 95:16-25. 26. Priests all over El Salvador began to engage in projects to support poorer communities. The oligarchy and sympathetic military leaders considered Liberation Theology to be a front for Marxism. Starting in at least 1977, priests and lay Catholic workers became targets of repression. The World Anticommunist League and its regional body, the Confederation of Latin American Anti-Communists (CAL), approved resolutions condemning priests and establishing groups to monitor their activities. Hr'g Tr. 8/26/04 (Karl), 67:1-25, 68:1-25, 69:1-25, 70:1-25, 71:1-25, 72:1-25. 27. On February 22, 1977, Oscar Romero, then bishop of San Miguel, was elevated to Archbishop of San Salvador. At that time he was known for his moderate traditional views. On March 12, 1977, Father Rutilio Grande, a Jesuit priest, was murdered in the town of Aguilares. (Aguilares provided an example of the implementation of Liberation Theology, where community members, with the help of Father Grande and others, established Christian Base Communities). Father Grande was a close and important friend of Archbishop Romero. After the murder, Romero realized that Father Grande was targeted simply because he wanted to improve the deplorable condition of the poor in El Salvador. The steadily increasing human rights abuses against poor civilians and members of the church changed Romero's views on the role of the church in El Salvador. Hr'g Tr. 8/26/04 (Karl), 71:1-73:25; Hr'g Tr. 8/26/04 (Cortina), 88:1-89:25. D. Coup and Violent Backlash. 28. In October 1979 a coup was carried out by younger reformist military officers led by Colonel Adolfo Majano. The new Revolutionary Governing Junta promised democracy and land reform, decreed the dismantling of ANSESAL and ORDEN, and briefly jailed some of the most notorious repressive figures in the military. Hr'g Tr. 8/26/04 (Karl), 55:21-56:25. 29. The coup resulted in a new period of violence. Various groups vied for control of the repressive apparatus. A core of military officers sought to block any reform. They considered the Junta to be infiltrated by reformers. One of the leaders of this faction was former Major Roberto D'Aubuisson, who up until 1979 had been third in command of ANSESAL and *1121 had secreted away many of the agency's archives. D'Aubuisson began organizing death squads as early as 1977, but intensified his efforts after the coup. The group of military officers he led performed widespread and brutal abductions and murders throughout the late 1970s and early 1980s. TC Report, p. 133-34. 30. Major D'Aubuisson drew considerable support from wealthy civilians who feared that their lands and business interests would be adversely affected by the reform program announced by the Junta. They were convinced that the country faced a serious threat of Marxist insurrection which they needed to overcome. Some of the richest landowners and businessmen inside and outside the country offered their estates, homes, vehicles, and bodyguards to help the death squads. They also provided the funds used to organize and maintain the squads, especially those directed by Major D'Aubuisson. TC Report, p. 134. 31. Saravia was "[o]ne of the principal lieutenants of D'Aubuisson" and was widely known to be D'Aubuisson's "Chief of Security" after both were cashiered from the Salvadoran military. Hr'g Tr. 8/27/04 (Karl), 122:15-17; Hr'g Tr. 8/24/04 (White), White Dep. 34:4-5. E. Romero's Increasingly Vocal Criticism. 32. During this time Archbishop Romero showed a profound interest in and sympathy for the needs of poor Salvadorans. He used his position as Archbishop to address the repression in the country. In his weekly Sunday homilies he denounced the human rights abuses occurring throughout El Salvador. Often his homilies were the only public source of information about these abuses, identifying victims of violence and victims who "disappeared." He explicitly denounced the military and members of the security forces for their repressive actions. His homilies were broadcast throughout the country and millions of Salvadorans listened to them regularly. Hr'g Tr. 8/26/04 (Cortina), 98:23-25, 99:20-100:2; Hr'g Tr. 8/27/04 (Guerra), 57:1-58:25. 33. On March 23, 1980, Archbishop Romero delivered his most decisive homily. After weeks of increasing repression, Archbishop Romero declared, "No soldier is obliged to obey an order counter to the law of God." He continued, "In the name of God, then, and in the name of this suffering people, whose cries rise to heaven each day more tumultuous, I beseech you, I beg you, I order you, in the name of God, stop the repression?" Ex. 92 (March 23 homily); Hr'g Tr. 8/24/04 (Wipfler), 64:3-65:16. IV. ASSASSINATION OF ARCHBISOP ROMERO A. The Assassination. 34. On March 24, 1980, Major D'Aubuisson, Saravia and others gathered at the home of a D'Aubuisson supporter in San Salvador. The group had knowledge that Archbishop Romero would celebrate a mass that day. A member of the group proposed that this provided a good opportunity to carry out the already approved assassination. D'Aubuisson agreed, and the group began to make arrangements. Saravia took charge of the operation and was involved in paying the fees of the assassin. Complaint, ¶¶ 15, 19; TC Report, pp. 127-131; Ex. 99, Inter-American Commission on Human Rights Decision ("IACHR Decision"), ¶¶ 3, 20, 43, 54, 54 (citing with approval the findings of the TC Report). 35. Amado Garay testified that early that evening, Saravia was at home when he instructed his driver, Garay, to drive him to a house with distinctive Japanese Maronon trees in front. Saravia, along with two members of the National Police, Nelson *1122 Morales, and Nelson Garcia, who had previously recruited Garay to work for Saravia, and another person also drove to the house. Hr'g Tr. 8/24/04 (Garay), 103:22-104:23; TC Report, pp. 127, 130, 131. 36. Garay waited by the gate of the house while Saravia went into the house. Saravia later emerged accompanied by a tall man with a beard. Saravia told Garay to drive the bearded man to an undisclosed location, and told him that the man would give him directions. Hr'g Tr. 8/24/04 (Garay), 105:11-106:5; TC Report, pp. 127, 130, 131. 37. Saravia said to the tall, bearded man, in Garay's presence, "It [is] better to shoot in the head because maybe he have [sic] a bulletproof vest. You have to be sure he got [sic] killed." Saravia also informed Garay that they would be provided with protection, as a vehicle would drive behind him. Hr'g Tr. 8/24/04 (Garay), 106:7-16. 38. Saravia directed Garay to get into a red Volkswagen to drive the tall, bearded man. The man had a long rifle with a telescopic lens. Garay followed the directions of the man, who spoke with a Salvadoran accent, to a location with a big gate followed by a long path. Complaint, ¶ 16; Hr'g Tr. 8/24/04 (Garay), 106:13-14; 20-23; 107:1-2; 111:12-13; 112:16; TC Report, pp. 127,130-131. 39. During the ride, while Garay drove, the bearded man said, "I can't believe it, I'm going to shoot a priest." Hr'g Tr. 8/24/04 (Garay), 112:3-4. 40. The man directed Garay to stop at the front door of a church, which was identified by eyewitnesses as the chapel of the Hospital of Divine Providence. Garay saw people sitting in the pews of the church and a priest—whose identity was unknown to him at the time—speaking. The priest was Archbishop Romero, who was celebrating a mass in memory of Sara Meardi de Pinto, the mother of Jorge Pinto, a friend of the Archbishop's and the owner of the opposition newspaper, El Independiente. Notice of the mass, celebrated at six o'clock in the afternoon, had been published in the newspapers, La Prensa Grafica and Diario de Hoy. Hr'g Tr. 8/24/04 (Garay), 107:5-7; 108:21-25; 109:1; Hr'g Tr. 8/24/04 (Ramirez Amaya) 34:19-22; 35:10-11; Hr'g Tr. 8/26/04 (Hernandez), 153:2-7; Ex. 40 (photo of Jorge Pinto); IACHR Decision, ¶ 45, n. 31; Ex. 115 (announcement of mass for Sara Meardi di Pinto). 41. The bearded man in the car directed Garay to act like he was fixing something in the car. Garay bent over in the front seat. Hr'g Tr. 8/24/04 (Garay), 107:8-11. 42. Garay then heard a loud explosion as the bearded man in the back seat of the vehicle shot Archbishop Romero. Hr'g Tr. 8/24/04 (Garay), 107:12-13, 108:24; Complaint, ¶ 6; TC Report, pp. 28, 127, 130, 131. 43. The man told Garay to drive slowly away from the church. Garay drove slowly, and subsequently got lost, but the shooter made contact with the security car by radio and was given directions back to the house with the Japanese Maronon trees. Hr'g Tr. 8/24/04 (Garay), 107:14-22. 44. When Garay and the shooter returned to the house with the Maronon trees, they were greeted by Saravia. The shooter informed Saravia that the assignment had been carried out. Saravia told Garay and the shooter that he had heard the news on the radio that the Archbishop had died instantly. Complaint ¶ 16; Hr'g Tr. 8/24/04 (Garay), 109:20-22, 24-25; 110:1-4. 45. Saravia, Nelson Morales, Nelson Garcia and Garay drove back to Saravia's house in a Jeep Cherokee, which was the *1123 vehicle regularly used to transport Saravia. Hr'g Tr. 8/24/04 (Garay), 101:24; 115:7. 46. Once at Saravia's house, Saravia advised Garay that Garay, Nelson Morales, and Nelson Garcia would sleep at a different house that night. Hr'g Tr. 8/24/04 (Garay), 116:25; 117:1, 3-10; 119:1, 4-5. 47. Several days later, Garay drove Saravia from Saravia's home to a house in Sal Salvador that looked like a castle. The house had a long driveway and a big, white gate. Major D'Aubuisson emerged from the house. Saravia saluted Major D'Aubuisson and told him, "Mission completed." Complaint, ¶ 17; Hr'g Tr. 8/24/04 (Garay), 127:1-11, 16-23; 127:5-9. 48. Saravia also delivered to the assassin a sum of money, which earlier had been provided to him to pay the assassin, or his agent. Complaint, ¶ 17; RT Report, pp. 127, 131. 49. On a later date, Garay was driving Saravia past an empty lot. He saw a car that had been burned. Saravia told Garay that the car was the red Volkswagen that had been used to transport the shooter to the Romero assassination. Hr'g Tr. 8/24/04 (Garay) 115:9-11, 13-18, 20-25; 116:1-8. B. Events in the Immediate Aftermath of the Assassination. 50. Archbishop Romero fell where he had been shot at the Chapel of the Hospital of Divine Providence and was tended to by the nuns who lived and worked there. He was rushed to the Policlinica Hospital in a station wagon right after he was shot. Hr'g Tr. 8/26/04 (Hernandez), 149:18-20; Exs. 22, 24-30, 34, 36, 38 (photos of assassination); Declaration of Maria Clelia Flores Iraheta, ¶ 7, filed 8/20/04. 51. At the Hospital of Divine Providence, many people were gathered, including Father Jon Cortina; Monsenor Ricardo Urioste; other nuns and priests; one of the lawyers for the Archdiocese's human rights office, Florentin Melendez; the members of an American ecumenical delegation; relatives of the Archbishop; and others. Hr'g Tr. 8/24/04 (Wipfler), 73:20-24; Hr'g Tr. 8/25/04 (Ramirez Amaya) 30:22-25; Hr'g Tr. 8/26/04 (Cortina), 104:1-2; 5-6; Hr' Tr. 8/26/04 (Hernandez), 145:21-23; 146:4-6, 9; Ex. 42 (photograph at the Policlinica); Declaration of Rosa Nohemy Ortiz, ¶ 7, filed 8/20/04; Declaration of Philip Berryman, ¶ 21, filed 8/20/04; Declaration of Thomas Quigley, ¶ 4, filed 8/20/04. 52. Archbishop Romero was pronounced dead on his arrival at the Policlinica. Hr'g Tr. 8/24/04 (Wipfler), 73:23-24. 53. At the Chapel of the Hospital of Divine Providence, some of the hospital patients were detaining the photographer from the newspaper, Diario de Hoy, who had attended the mass. He initially was suspected of carrying out the assassination. Father Cortina testified he was somewhat knowledgeable about photography, he went to Divine Providence to investigate this situation. Hr'g Tr. 8/26/04 (Cortina), 104:8-21, 105:5-13; Hr'g Tr. 8/26/04 (Hernandez), 150:21-23. 54. Fearful to go by himself, Father Cortina was accompanied by Monsenor Modesto Lopez to the Chapel of the Hospital of the Divine Providence. Father Cortina arrived at the chapel and hospital area around 8:00 p.m. At that time, the area was filled with armed soldiers wearing camouflage uniforms and armed policemen, he believed were members of the National Police. Hr'g Tr. 8/26/04 (Cortina), 104:25, 105:3-4; 108:10-15, 108:25-109:10. Father Cortina determined that the two cameras of the photographer could not have been converted to fire a bullet and were not out of the ordinary. Father Cortina then left with the photographer to assist him in developing the photographs *1124 at the offices of the Diario de Hoy. Hr'g Tr. 8/26/04 (Cortina), 104:20-24; 105:1-2, 5-15, 16-18; 107:11-16; Exs. 24, 25, 27-30, 33-36 (photographs of assassination). C. Post-Assassination Investigation. 55. Judge Atilio Ramirez Amaya, the Criminal Judge of the Fourth Criminal Court in San Salvador, testified he attempted to carry out a serious investigation into the assassination of Archbishop Romero, but National Police and other government officials charged with assisting in the investigation actively obstructed his efforts, failed to conduct a timely investigation, failed to collect and preserve material evidence, and failed to identify witnesses. Complaint, ¶ 18; Hr'g Tr. 8/25/04 (Ramirez Amaya), 22:2-4; 23:5-7, 15-18; 24:6-15; 27:4-7, 11-18; 45:21-25; 46:1-11; TC Report, p. 128; IACHR Decision, ¶¶ 10,12, 20, 43, 46, 87-91. 56. On March 24, 1980, Judge Ramirez Amaya heard by word of mouth that Archbishop Romero had been shot. He went to the Policlinica Hospital after he determined that Archbishop Romero had not been taken to the forensic clinic, a departure from the normal procedure. He arrived around seven o'clock in the evening. The National Police had not informed Judge Ramirez Amaya of the murder, also a departure from standard procedure. Since Romero was a person of high ranking, Judge Ramirez Amaya, as the Criminal Judge in San Salvador, immediately took over the investigation from the Justice of the Peace. Hr'g Tr. 8/25/04 (Ramirez Amaya), 22:19-22; 23:15-18, 20-23; 28:17-21, 22-25; 28:12-14; 29:1-10. 57. Judge Ramirez Amaya did not observe any police at the Policlinica despite the fact that they should have been there to ensure security. Judge Ramirez Amaya then called his secretary and asked him to call the police to request their presence at the Policlinica. The police never arrived. Hr'g Tr. 8/25/04 (Ramirez Amaya), 27:4-7; 30:13-18; 31:21; 46:9-11. 58. The room finally was cleared of all the people, and Judge Ramirez Amaya ordered the forensic doctors to perform the autopsy. The autopsy was performed by Dr. Cuellar Ortiz, Dr. Pedro Chavarria, and two others. Judge Ramirez Amaya and his secretary were present during the autopsy. Hr'g Tr. 8/25/04 (Ramirez Amaya), 31:1-5; 32:22-25; TC Report, p. 128. 59. The first step in the autopsy was the taking of X-rays to make a determination as to the location of the bullet in Archbishop Romero's body. The first Xray was unsuccessful so two or three more X-rays were taken. From these X-rays, the doctors determined that a small entry wound, barely 5 millimeters in diameter in the right thorax, evidenced the point of entry of the bullet. The bullet had fragmented into three parts and was still inside Archbishop Romero's thorax. Hr'g Tr. 8/25/04 (Ramirez Amaya) 31:5-8; TC Report, p. 128; Ex. 113 (Romero autopsy report). 60. The forensic doctors cut the cartilage in the sternum area of Archbishop Romero's chest to open his thorax. They discovered a number of blood clots which inhibited the locating of the bullet fragments. The blood clots were removed and dissolved individually. Finally, the bullet fragments were located. Hr'g Tr. 8/25/04 (Ramirez Amaya) 31:9-18; TC Report, p. 128; Ex. 113 (Romero autopsy report). 61. The autopsy took almost four hours. The book of acknowledgment and the final autopsy report, signed by Dr. Chavarria, on behalf of his colleagues, and by Judge Ramirez Amaya and his secretary, recorded that Archbishop Romero died from a hemorrhage caused by the bullet fragments severing his aorta and the venae cavae. Hr'g Tr. 8/25/04 (Ramirez Amaya) 32:5-6, 9-21; 33:1-3, 6-7; *1125 IACHR Decision, ¶¶ 45, 46; Ex. 113 (Romero autopsy report). 62. At this point, Judge Ramirez Amaya requested that his secretary telephone the National Police once again so the police could secure the evidence in bags, as was standard operating procedure. The police did not arrive. Hr'g Tr. 8/25/04 (Ramirez Amaya), 24:12-15; 31:19-22. 63. Later, Judge Ramirez Amaya requested that his secretary place yet another call to the National Police to arrange for them to accompany him and his secretary to the scene of the crime, the Chapel of the Hospital of the Divine Providence. The police never arrived. Judge Ramirez Amaya was forced to take the evidence, the bullet fragments and the X-rays, with him. Judge Ramirez Amaya and his secretary had to travel to the crime scene in Judge Ramirez Amaya's private vehicle. Hr'g Tr. 8/24/04 (Ramirez Amaya), 33:8-15; 34:14-17. 64. When Judge Ramirez Amaya arrived at the chapel around 11:30 p.m., Florentin Melendez and Roberto Cuellar, the two lawyers for the Archdiocese's Human Rights Office, were present. No police were present. Hr'g Tr. 8/25/04 (Ramirez Amaya), 33:6-18; 34:15; Hr'g Tr. 8/26/04 (Hernandez), 146:9-18, 21-23; 147:9-10. 65. Judge Ramirez Amaya and the others canvassed the small chapel in search of the bullet. They took measurements to determine the range and distance from which the shot could have been fired. They thoroughly searched for any type of evidence but found none. Hr'g Tr. 8/25/04 (Ramirez Amaya), 33:19-25. 66. A short time before midnight, Judge Ramirez Amaya drove his secretary to the court, where his secretary stayed instead of returning to the secretary's home as it would have been extremely dangerous to drive there. By this time, Judge Ramirez Amaya observed Army tanks on the streets and police patrolling with automatic weapons. Hr'g Tr. 8/25/04 (Ramirez Amaya), 34:2-13. 67. Because the National Police never came to pick up the evidence, Judge Ramirez Amaya took the bullet fragments and the X-rays with him to his home. Hr'g Tr. 8/25/04 (Ramirez Amaya), 34:14-17. 68. The next day, March 25, 1908, Judge Ramirez Amaya went to his chambers at the Fourth Criminal Court. There, he organized the files on the case and the book of acknowledgment so that it could be transcribed. He also was made aware of the published advertisement announcing Archbishop Romero's celebration of the memorial mass for Sara Meardi de Pinto the previous evening. Hr'g Tr. 8/25/04 (Ramirez Amaya), 26:20-24; 34:19-22,23-25; 35:18-21. 69. The National Police finally went to the crime scene four days after the assassination. The police did not collect evidence nor did they provide the investigating judge any information or evidence to assist in the investigation. IACHR Decision, ¶¶ 46, 88, 89; Complaint, ¶ 18. 70. Despite a National Police analysis confirming Judge Ramirez Amaya's conclusion that the projectiles extracted from Archbishop Romero's body came from a.22 caliber bullet, these conclusions never appeared in the judicial file of Archbishop Romero's case. The X-rays also disappeared from the judicial file. TC Report, p. 128; IACHR Decision ¶¶ 46, 90; Complaint, ¶ 18. 71. Pedro Napoleon Martinez was alleged to have been an eyewitness to the flight of the assassins. At the chapel, he assisted in moving Archbishop Romero's body for transport to the hospital. Twenty days after the assassination, on April 13, 1980, P. Martinez was kidnapped and disappeared. His disappearance was never *1126 investigated. Complaint, ¶ 18; Hr'g Tr. 8/26/04 (Hernandez), 149:18-22, 25, 150:1-4; 152:22-23; Hr'g Tr. 8/27/04 (Karl) 129:4-130:16; Ex. 34 (photograph showing Martinez helping to remove Romero from the chapel); IACHR Decision, ¶¶ 11, 103-104. 72. In the months following the assassination, several other suspicious events occurred, obstructing any investigation of the murder of Archbishop Romero. These included: • On July 5, 1980, the offices of Socorro Juridico were searched by the National Police and the files concerning Socorro Juridico's investigation of the assassination were removed and were never seen again. IACHR Decision, ¶ 106; Hr'g Tr. 8/26/04 (Hernandez), 148:1-15, 20-23; 149:7-10. • In 1980, both the Director of Socorro Juridico, Roberto Cuellar, and its staff attorney working on the investigation of the assassination of Archbishop Romero, Florentin Melendez, were forced to flee El Salvador after receiving death threats. Hr'g Tr. 8/26/04 (Hernandez), 146:9-16; 21-25; 147:1-25; Ex. 42 (photo of Melendez at autopsy). D. Attack on Judge Amaya. 73. On March 25, 1980, Judge Ramirez Amaya received a telephone death threat at his home. Altogether, on March 25 and 26, Judge Ramirez Amaya received three or four telephoned death threats. In one instance, his thirteen-year old daughter, who answered the phone, was asked her favorite color. She was told that "that was the color they would paint the coffin that they would have [Judge Ramirez Amaya] in." Hr'g Tr. 8/25/04 (Ramirez Amaya), 39:2-10; 41:16; IACHR Decision ¶ 114. 74. On March 27, 1980, at about 10:15 p.m., two men knocked at Judge Ramirez Amaya's door. The men claimed to know a friend of the Judge. Ramirez Amaya told his housekeeper to carefully open the door. The two men entered his home. Hr'g Tr. 8/25/04 (Ramirez Amaya), 39:11-22; 40:4-5. 75. Judge Ramirez Amaya, armed with a twelve gauge shotgun, stayed in the bedroom. He opened the bedroom door, peeked out, and realized that he did not know the men. He told them to be seated. Hr'g Tr. 8/25/04 (Ramirez Amaya), 39:22-23; 40:5-9. 76. One of the man immediately pulled an automatic weapon from a briefcase he was carrying. Judge Ramirez Amaya responded by pulling out his shotgun. As Judge Ramirez Amaya was about to fire at them, his housekeeper ran towards him. Hr'g Tr. 8/25/04 (Ramirez Amaya), 40:10-15; IACHR Decision ¶ 112. 77. One of the men fired the gun at Judge Ramirez Amaya. However, since the housekeeper was in the way, the gunman missed the judge and, instead, wounded the housekeeper. She was injured in the back and the buttocks area. She fell towards Judge Ramirez Amaya, who was not able to break her fall. Hr'g Tr. 8/25/04 (Ramirez Amaya), 40:17-22; IACHR Decision, ¶¶ 11, 112. 78. The men immediately fled from Judge Ramirez Amaya's home. Outside, they shot at the house and the tires of Judge Ramirez Amaya's car. Hr'g Tr. 8/25/04 (Ramirez Amaya), 40:23-25; 41:1-2. 79. Judge Ramirez Amaya then heard noises on the roof of his house. He began to fire his shotgun out the windows. He was mindful of the fact that within recent weeks, Mario Zamora, the Attorney General of El Salvador, the mayor of the City of San Miguel had been killed in a similar fashion. Hr'g Tr. 8/25/04 (Ramirez Amaya), 41:4-11. *1127 80. Judge Ramirez Amaya yelled to his wife "Josefina, they are going to kill us, just like they did with Mario Zamora," and urged her to fire a pistol out the windows. In addition, Judge Ramirez Amaya protected his daughter by throwing a mattress over her. He crawled through his home and listened for the attackers. Finally, the noises stopped. Hr'g Tr. 8/25/04 (Ramirez Amaya), 41:12-20. 81. Breaking the silence ten minutes later, the phone rang. The voice on the other end said, "Doctor, this is Elicio Soto from the National Police." This voice was familiar to Judge Ramirez Amaya as he had known Soto, now a National Police inspector, since childhood. Ramirez Amaya's mother had assisted Soto in obtaining his job with the police. Hr'g Tr. 8/25/04 (Ramirez Amaya), 41:21-25; 42:1-9. 82. Next, in a surprised tone of voice, Soto said to Ramirez Amaya, "Doctor, you are alive." Judge Ramirez Amaya answered, "Yes, I am happy to be alive." Soto replied, "Don't worry. Perhaps they were just trying to scare you." Hr'g Tr. 8/25/04 (Ramirez Amaya), 42:10-15. 83. Within a half hour, family and friends, whom Judge Ramirez Amaya had telephoned, arrived at his house. When he opened the door for them, Judge Ramirez Amaya also greeted some of his neighbors and the night watchman. The night watchman informed Judge Ramirez Amaya that the police must have been "deaf because two marked police vehicles had been parked on the street during the assassination attempt and did not move. Hr'g Tr. 8/25/04 (Ramirez Amaya), 42:16-20, 24-25; 43:1-5, 6-9. 84. One of Judge Ramirez Amaya's students at the National University, the boyfriend of his neighbors, was visiting his girlfriend at the same time as the attack. He confidentially informed Judge Ramirez Amaya that he saw that three persons were involved in the attempted murder of the Judge. In addition to the two men who entered the house, one remained behind in the get-away car. He told Ramirez Amaya that he personally knew the man at the wheel of the car to be a member of the National Police. Judge Ramirez Amaya knew that the neighbor's boyfriend had worked with the National Police. Hr'g Tr. 8/25/04 (Ramirez Amaya), 43:10-25. 85. The night of the attempt, a group of police detectives arrived at Judge Ramirez Amaya's home and inquired what was happening. They dismissed the assassination attempt as the work of "amateurs" that they could have prevented from happening. No further investigation occurred thereafter. Hr'g Tr. 8/25/04 (Ramirez Amaya), 44:3-6; 46:12-22; IACHR Decision, ¶¶ 115, 116. 86. At this point, Judge Ramirez Amaya told his wife they would be killed by the police so they had to leave El Salvador. Despite the fact that he had a ticket to go to Venezuela two days later, Judge Ramirez Amaya determined that, with police control of the airports, traveling by plane would be too risky. He arranged to leave by boat through the Gulf of Fonseca and to travel directly to Nicaragua. Complaint, ¶ 18; Hr'g Tr. 8/25/04 (Ramirez Amaya), 43:25; 44:1-2, 20-25; 45:1-4, 6-9. 87. Judge Ramirez Amaya went to the hospital the next day to visit his housekeeper. He found that she had not been admitted to the hospital. She was still lying on the floor in the hallway. A doctor explained that they did not intend to remove the bullets and would send her home the next day. Hr'g Tr. 8/25/04 (Ramirez Amaya), 44:7-19. 88. Judge Ramirez Amaya then resigned his position and fled El Salvador. Judge Ramirez Amaya was not able to return to El Salvador for almost ten years. Complaint, ¶ 18; Hr'g Tr. 8/25/04 (Ramirez *1128 Amaya), 21:7-11, 19-20; 45:10-13; IACHR Decision, ¶ 46. 89. The assassination attempt against Judge Ramirez Amaya was never investigated. Hr'g Tr. 8/25/04 (Ramirez Amaya), 44:3-6. 90. The Truth Commission concluded that "[t]here is sufficient evidence that the failed assassination attempt against Judge Atilio Ramirez Amaya was a deliberate attempt to deter investigation of the case." TC Report, pp. 127, 128, 131; IACHR Decision ¶ 54 (citing with approval the finding of the TC Report). E. The Funeral for Archbishop Romero. 91. For one week after the assassination, Archbishop Romero's body was available for viewing by the public. His coffin was never alone. Different communities were a part of this ritual by leading the activities and mass each day. Hr'g Tr. 8/27/04 (Guerra), 59:13-17; Hr'g Tr. 8/26/04 (Cortina), 111:10-18; Declaration of Julia Elvira Chacon, ¶ 8, filed 8/20/04. 92. On March 31, 1980, the funeral for Romero was held at the cathedral in San Salvador. The National Palace, located next to the cathedral, was an official government building, inaccessible to the public, and could be entered only by government officials. The day of the funeral, the palace was closed. Nonetheless, during the funeral mass, bombs were thrown into the crowd from a window at the far end of the National Palace. Additionally, government officials in civilian clothes were stationed on the roofs of the National Palace and surrounding buildings. After the bombs were thrown, government officers in plainclothes on the roofs opened fire on the crowd. Hr'g Tr. 8/26/04 (Cortina), 115:10-16, 25; 116:1-4, 24-25; Hr'g Tr. 8/26/04 (Acosta), 40:1-2, 18-20; 39:12-20; Hr'g Tr. 8/27/04 (Guerra), 60:19-21. 93. The bombs and gunfire caused the approximately 100,000 people at the funeral to run in fear. Many in the crowd were trampled. The priests who had carried Archbishop Romero's casket were forced to take his body inside the cathedral and hurriedly place it in the burial vault for fear that it would be stolen. About 5,000 people crammed into the cathedral in search of safety. Once Archbishop Romero was buried, the priests encouraged those in the cathedral to sing. Hr'g Tr. 8/27/04 (Guerra), 61:7-20; Hr'g Tr. 8/27/04 (Acosta), 40:1-8; Hr'g Tr. 8/26/04 (Cortina), 115:4-8. See also Declaration of the Rev. Charles Harper, ¶ 16, filed 9/01/04; Declaration of Carlos Ayala Ramirez, ¶ 19, filed 8/20/04; Declaration of Philip Berryman, ¶ 22, filed 8/20/04; Declaration of Julia Elvira Chacon, 119, filed 8/20/04; Declaration of Maria de la Luz Cueva Santana, ¶ 7, filed 8/20/04; Declaration of Pierre Jean DeClarcq, ¶ 8, filed 8/20/04; Declaration of Jose Humberto Giron Pez, ¶ 9, filed 8/20/04. 94. After about two hours, some of the priests went outside to the plaza. They recovered seventeen dead bodies. Not until 4:30 in the afternoon were all the priests and nuns who had been trapped in the cathedral able to leave under Red Cross protection. Hr'g Tr. 8/27/04 (Guerra), 61:21-24; 62:6-8, 17-19; Ex. 65 (photo of dead bodies at funeral); Ex. 66 (photo of nuns leaving cathedral at funeral). V. FAILED EFFORTS TO PROSCUTE ARCHBISHOP ROMERO'S KILLERS A. The Arrest of D'Aubuisson, Saravia, Garay and Others at the San Luis Finca on May 7, 1980. 95. On May 7, 1980, twelve civilians and twelve military personnel met at a farmhouse near San Salvador known as the San Luis Finca. They included D'Aubuisson, *1129 Saravia and Garay, as well as numerous other persons associated with El Salvador's rightwing death squads. At the meeting, D'Aubuisson gave his .45 millimeter handgun to Garay to hold while he was inside the farmhouse. Hr'g Tr. 8/24/04 (Garay), 121:12-122:13; Hr'g Tr. 8/24/04 (White) [White Dep. 43:18-44:14]; Hr'g Tr. 8/27/04 (Karl), 152:17-153:5; Ex. 122 (May 8, 1980 U.S. diplomatic cable); Ex. 125 (May 12, 1980 report of Maj. Jose Francisco Samayoa); TC Report, pp. 28 and 129. 96. While the meeting was going on, troops from the Salvadoran Army's First Brigade raided the farmhouse, arresting, among others, D'Aubuisson, Saravia and Garay. The raid had been ordered by Col. Majano, a member of the five-man Revolutionary Governing Junta. Hr'g Tr. 8/24/04 (White), [White Dep. 45:13-47:5]; Ex. 122 (May 8,1980 U.S. diplomatic cable). 97. Numerous documents were seized during the raid which implicated many of those arrested in the assassination of Archbishop Romero, a coup plot, and other serious crimes. Hr'g Tr. 8/24/04 (White) [White Dep. 40:10-20 and 63:14-64:2]; Ex. 122, Ex. 125; Ex. 127 (June 19, 1980 U.S. diplomatic cable); Declaration of Todd R. Greentree, ¶¶ 5 & 7, filed 8/20/04; Hr'g Tr. 9/3/04 (Karl), 3:6-12, 4:10-12, 5:9-16. 98. Members of the Junta and experts contacted by U.S. Ambassador White concluded that the "Operacion Pina" documents seized at the San Luis Finca, along with the so-called "Saravia Diary," referred to the plan to assassinate Archbishop Romero. Hrg. Tr. 8/24/04 (White), [White Dep. 35:2-39:2]; Hrg. Tr. 9/3/04 (Karl), 19:15-22:10; Ex. 122 (May 8, 1980 U.S. diplomatic cable); TC Report, p. 129. 99. On May 12, 1980, Col. Majano lost his influence over the Junta when Col. Jaime Abdul Gutierrez was appointed President of the Junta by the High Command of the Armed Forces. That same day, several newspapers published a message from a group calling itself "death squad" that demanded the release of D'Aubuisson and the others arrested at the San Luis Finca. TC Report, p. 204, n. 24. 100. D'Aubuisson and the others arrested at the San Luis Finca were soon released without ever being interrogated, much less prosecuted for any of the crimes for which they were implicated. Col. Majano was removed from the Junta by the end of the year, and was forced to flee El Salvador not long afterwards. Hrg. Tr. 8/24/04 (Garay); 123:15-124:4; Hrg. Tr. 8/24/04 (White), [White Dep. 47:9-14]; Hrg. Tr. 9/3/04 (Karl), 9:15-17, 32:1-6; TC Report, pp. 28, 29 and 205, n. 29. B. Failed Investigations During the Early and Mid-1980s. 101. The investigation of Archbishop Romero's murder was not pursued by the Government of El Salvador in the months following the killing and was actively thwarted in many ways. In June 1984, Jose Guerrero, a member of the ARENA party, Roberto D'Aubuisson's personal lawyer, and a former delegate to the CAL, the regional anti-communist league, was named as Public Prosecutor of El Salvador by the Legislative Assembly, which at the time was controlled by ARENA and its allies. IACHR Decision at ¶ 120; Hrg. Tr. 9/3/04 (Karl), 51:11-17. 102. On December 12, 1984, the Fourth Criminal Court's investigation of the Romero assassination was formally closed. IACHR Decision at ¶ 14. 103. The Fourth Criminal Court's investigation was reopened in 1985. Id. 104. On May 21, 1985, the Legislative Assembly, which was no longer controlled by ARENA, dismissed Guerrero as the Public Prosecutor "for not meeting the well-known requirements of morality and *1130 competence." However, Guerrero was quickly reinstated by the Salvadoran Supreme Court of Justice, which ruled that his dismissal had been unconstitutional. Id. at ¶ 120. 105. In August 1985, the Public Prosecutor, Guerrero, submitted the statement of Robert Adalberto Salazar Collier ("Pedro Lobo") to the Fourth Criminal Court. At that time Guerrero did not mention that the videotaped "confession" of "Pedro Lobo" had first been presented by Major D'Aubuisson during the March 1984 electoral campaign, and that it had been immediately discredited when it was determined that "Pedro Lobo" was a common criminal who had been incarcerated from 1979 through 1981 and who had admitted that he had been offered $50,000 to confess to being an accomplice in the assassination of Archbishop Romero. IACHR Decision at ¶ 50, n. 43; TC Report, p. 129. C. The Failed Extradition Effort of 1987-1988. 106. In January 1986, President Jose Napoleon Duarte appointed a Commission to Investigate Criminal Acts ("the Investigative Commission") to give impetus to the Romero investigation. IACHR Decision at ¶ 14. 107. The work of the Investigative Commission led to the discovery of Amado Antonio Garay, Saravia's former driver. On November 20, 1987, the Investigative Commission presented Garay to Judge Ricardo Alberto Zamora Pérez of the Fourth Criminal Court, who took Garay's sworn statement. IACHR Decision at ¶ 52; Complaint, ¶ 20, TC Report at p. 130. 108. On November 24, 1987, Judge Zamora charged Saravia with aggravated homicide in violation of Article 53 of the Salvadoran Penal Code for his alleged role in the murder of Archbishop Romero. Judge Zamora issued an arrest warrant for Saravia, and an extradition request was duly issued to the United States. TC Report, p. 130. 109. On November 25,1987, the United States Department of Justice filed a Criminal Complaint against Saravia in the United States District Court for the Southern District of Florida, and that court issued a warrant for his arrest. U.S. v. Alvaro Rafael Saravia Merino, Case No. 87-3598-CIV, (S.D.Fla.11/15/87). The November 25, 1987 affidavit of Sharon L. Kegerreis, an Assistant U.S. Attorney for the Southern District of Florida, filed in support of the Complaint identifies Saravia as a citizen of El Salvador who was born on February 16, 1946 in Santiago de Maria, Usulatan Province, El Salvador. U.S. v. Alvaro Rafael Saravia Merino, Affidavit of Sharon L. Kegerreis at ¶ 5. 110. On November 27, 1987, Saravia was arrested in Florida pursuant to the arrest warrant. U.S. v. Alvaro Rafael Saravia Merino, Case No. 87-3598-CIV, "Certification of Extraditability and Order of Commitment" (S.D.Fla. Sept. 27, 1988), p. 1; Complaint, ¶ 20. 111. Saravia, reportedly with funding for his legal costs provided by Major D'Aubuisson, filed habeas corpus petitions in both the U.S. and Salvadoran courts. See Saravia v. U.S., 88-01975-CIV-TES (S.D.Fla.). On October 3, 1988, the United States Ambassador to El Salvador, William Walker, sent a diplomatic cable to the United States Secretary of State regarding "The Saravia Extradition and the D'Aubuisson Mafia." Ex. 96, p. 1. Ambassador Walker reported the following to the Secretary of State: There is ample cireumstancial [sic] evidence that an effort is underway to obstruct the extradition from the U.S. of Cpt. Alvaro Rafael Saravia, the cashiered Salvadoran Air Force officer charged with complicity in the March 24, 1980 assassination of Archbishop Oscar *1131 Arnulfo Romero. The effort is traceable to Roberto D'Aubuisson and associates through a document telefaxed from D'Aubuisson's Mariscos Tazumal office to Saravia's U.S. lawyer for entry into the Saravia extradition court records. * * * * * * The Mariscos Tazumal fax identification clearly links the Saravia defense to an entire realm of coup plotters, death squad chiefs, kidnappers, baby robbers, mad bombers, car thieves, and other assorted criminals. None, however, has ever been convicted, and prosecution is unlikely as long as D'Aubuisson and his backers are free to manipulate the Salvadoran judicial system. Ex. 96, pp. 1 and 8. 112. On December 19, 1988, the Constitutional Division of the Supreme Court of Justice of El Salvador issued a decision ordering the Fourth Criminal Court to stop the investigation of Saravia and to withdraw the warrant for his arrest. U.S. v. Alvaro Rafael Saravia Merino, Case No. 87-3598-CIV, "Government's Motion to Dismiss Extradition Proceedings" (S.D.Fla. Dec. 28, 1988) (attaching a certified translation of the Salvadoran court's decision). 113. No member of the Salvadoran Supreme Court had been present when Garay gave his statement. The Chief Judge of the Supreme Court at the time was the same Jose Francisco Guerrero who had served as D'Aubuisson's personal lawyer and who had submitted the discredited "Pedro Lobo confession" to the Fourth Criminal Court when he was the Public Prosecutor in 1985. Id., Hrg. Tr. 9/3/04 (Karl), 51:11-53:1, 55:23-56:10. 114. The U.N. Truth Commission found the Salvadoran Supreme Court "played an active role that served to hinder the extradition from the United States and later imprisonment of Saravia in El Salvador." The Truth Commission interpreted the decision as politically motivated. Complaint, ¶ 20; TC Report, p. 131; IACHR Decision, ¶ 98. 115. On December 28, 1988, the U.S. District Court for the Southern District of Florida vacated the Certificate of Extraditability and Order of Commitment and ordered the United States Marshals to release Saravia. U.S. v. Alvaro Rafael Saravia Merino, Case No. 87-3598-CIV, "Order of Dismissal and Vacation." (S.D.Fla. Dec. 28, 1988). 116. No further efforts have ever been made in El Salvador to prosecute Saravia or anyone else for the murder of Archbishop Romero. Complaint, ¶ 21. D. End of Civil War. 117. From 1980 to 1992, El Salvador was engaged in full-scale civil war, caused in part by the assassination of Archbishop Romero. In 1990, the parties began informal talks about the possibility of negotiating a peace agreement. Actual negotiations continued from 1990 to 1992. A formal cease fire and Peace Accords were signed in Chapultepec, Mexico, on January 16, 1992. The peace agreement required the dismantling of the Treasury Police and the National Police because they "were so thoroughly repressive and corrupt that they could not be saved." However, the death squads that operated out of those forces were not entirely dismantled. Hrg. Tr. 8/25/04 (White), [White Dep. 55:13-56:1]; Hrg. Tr. 8/27/04 (Acosta), 41:2-6; 42:6-21; Hrg. Tr. 8/25/04 (Karl), 75:6-18, 93:3-16. E. United, Nations Truth Commission. 118. In accordance with the Peace Accords, the United Nations established a Truth Commission that began investigating crimes committed since 1980. It was set up in July 1992 and was composed of former Colombian president Belisario Betancur, *1132 former Venezuelan foreign minister Reinaldo Figueredo Planchart, and George Washington University law professor Thomas Buergenthal. The Truth Commission's report on "serious acts of violence" since 1980 entitled "From Madness to Hope: the 12-Year War in El Salvador: Report of the Commission on the Truth for El Salvador," was released on March 15, 1993, at the United Nations. The peace agreements also commissioned the Truth Commission to make "legal, political or administrative" recommendations that were either general or related to specific cases. The Truth Commission was delegated two specific powers: the power to make investigations and the power to make recommendations. The Parties to the peace agreement had agreed to be bound by the Truth Commission's recommendations. TC Report, p. 11, 18-25; Hrg. Tr. 8/25/04 (Karl), 75:19-21. 119. The Truth Commission testimony attributed almost 85% of all abuses to agents of the government of El Salvador, allied paramilitary groups, and the death squads. TC Report, p. 43. Among other things, the Truth Commission concluded that: • Violence in the 1980s "originated in a political mind-set that viewed political opponents as subversives and enemies." TC Report, p. 43. • Those who promoted opposing ideas that questioned official policy were automatically labeled subversive and deemed to be working for the guerrillas. TC Report, p. 43. • In the early 1980s, violence in rural areas was "indiscriminate in the extreme." TC Report, p. 44. • Several members of the armed forces admitted and gave details of their involvement at the highest levels in the organization, operation and financing of the death squads. TC Report, p. 132. • Between 1980 and 1991, human rights violations were committed in a systematic and organized manner by groups acting as death squads. TC Report, p. 132. • Many of the civilian and military authorities in power during the 1980s "participated in, encouraged and tolerated" the activities of the death squads. TC Report, p. 132, 137. • The intelligence sections of many armed forces units operated on the death squad model, dressing in civilian clothes and driving unmarked cars. TC Report, p. 136. • Salvadoran exiles living in Miami "directly financed" certain death squads. TC Report, p. 137. • The lack of effective action by the judicial system was a factor in maintaining impunity for "members and promoters" of the death squads. TC Report, p. 137. • None of the branches of government were capable of restraining the military's overwhelming control of society. TC Report, p. 172. • The judicial system suffered from a "glaring inability" to investigate crimes or to enforce the law, especially with regard to crimes committed or supported by government institutions. TC Report, p. 178. 120. Based on these findings, the Truth Commission recommended, among other things: • The discharge of officers in the Salvadoran armed forces who were named in the report. TC Report, p. 176. • The appointment of a new Supreme Court. TC Report, p. 177. • Elimination of the defense of "due obedience" for soldiers who carry out orders that are clearly illegal. TC Report, p. 179. *1133 • The subordination of the military to civilian authorities. TC Report, p. 179. • The eradication of illegal armed groups by "all necessary measures." TC Report, p. 180. • Review of the constitutional rules which led to "tremendous concentration" of power in the hands of the Supreme Court, particularly its President. TC Report, p. 181. 121. The Truth Commission was unable to recommend specific penalties because, as it found: "El Salvador has no system for the administration of justice which meets the minimum requirements of objectivity and impartiality so that justice can be rendered reliably. This is a part of the country's current reality and overcoming it urgently should be a primary objective for Salvadoran society." TC Report, p. 178. F. Amnesty Law. 122. On March 20, 1993, five days after the Truth Commission Report was released at the United Nations, the Legislative Assembly of El Salvador adopted the General Amnesty Law by Decree No. 486 ("Amnesty Law"). IACHR Decision, ¶ 55; Hrg. Tr. 8/26/04 (Hernandez), 126:3-10, 128:4-12; Hrg. Tr. 9/3/04 (Roht-Arriaza), 130:16-21, 131:14-17. 123. The Amnesty Law grants a "broad, absolute and unconditional amnesty... in favor of all those who in one way or another participated in political crimes, crimes with political ramifications, or common crimes committed by no less than twenty people, before January 1, 1992." The Amnesty Law extends to indirect perpetrators and accomplices as well, and includes those who have been convicted, indicted or not yet charged. Id. At Art. 1, 4. 124. Shortly after passage of the Amnesty Law, on March 31, 1993, Judge Luis Antonio Villeda Figueroa applied the Amnesty Law to Saravia and dismissed with prejudice the case against him for the murder of Archbishop Romero. Specifically, Judge Villeda found that the Romero assassination was a "political" crime which provides Saravia with amnesty under the 1993 law. Judge Villeda's decision was upheld by the First Criminal Chamber on May 13, 1993, which entered a final judgment in the case because the time for the Office of the Public Prosecutor to file a motion had expired without any action. The First Criminal Chamber ruled that its decision has res judicata effect with regard to Saravia in the Romero case. IACHR Decision, ¶¶ 22, 98, n. 100, 101; Amnesty Law, Art. 2, 4(c). 125. The Inter-American Commission on Human Rights found in 2000 that "the application of the General Amnesty Law in the [Romero] case eliminated the possibility of undertaking judicial investigations aimed at determining the responsibility of all those involved. In addition, that decision violated the right of the victim's relatives and of society at large to know the truth about the events in question." The IACHR Commission recommended that the government of El Salvador pass legislation to nullify the amnesty law. IACHR Decision, ¶¶ 151,159(3). 126. No such legislation has ever been passed. The Salvadoran Supreme Court has twice upheld the constitutionality of the Amnesty Law, in 1993 and 2000. Although the Court's 2000 decision, postdating the IACHR Decision does not foreclose narrowing of the amnesty, in the twelve years following enactment, no prosecutions have taken place for crimes and individuals facially covered by the Amnesty Law. This is because the Public Prosecutor has interpreted the Salvadoran Supreme Court decision to apply the amnesty *1134 law to all cases of human rights abuses. Hrg. Tr. 9/3/04 (Roht-Arriaza), 136:3-20. 127. Aside from the Amnesty Law's blocking prosecution of Saravia for his involvement in the assassination of Archbishop Romero, the passage of the Amnesty Law immediately following the release of the Truth Commission Report served to stifle discussion of the report and frustrated the implementation of its recommendations. This undermined the efficacy and purpose of the entire truth-finding process. Hrg. Tr. 9/3/04 (Roht-Arriaza) 130:16-21, 131:14-19. G. Inability to Publicly or Privately Pursue Justice in El Salvador. (1) Fear of Reprisal. 128. Prior to the first democraticallyelected government taking office in El Salvador on June 1, 1994, the military and security forces held enormous power. From 1980 to 1994, any person who made allegations against active or former members of the military risked reprisal, including death. However, citizens did not just fear reprisals by the military. The ARNA party held great power in El Salvador in the 1980s and continues to run the government today. The ARENA party was founded by Roberto D'Aubuisson, who also founded the death squads that operated in direct concert with the Salvadoran armed forces. Salvadorans feared and continue to fear, not only retaliation from the military, but also from the ARENArun government and its death squads. Complaint, ¶ 22; Hrg. Tr. 8/25/04 (Ramirez Amaya), 26:12-19; 493:3-12, 51:22-52:21. 129. During the civil war, judges were murdered at a high rate. As the Truth Commission concluded, "In the 1980s, it was dangerous to be a judge in El Salvador." During that decade, 28 judges were killed. The judiciary could not defend itself against violence. It "fell victim to intimidation and the foundations were laid for its corruption... [I]ts ineffectiveness steadily increased until it became, through its inaction or its appalling submissiveness, a factor which contributed to the tragedy suffered by the country." TC Report, pp. 170, 172-73. 130. Even after the security forces were disbanded pursuant to the Peace Accords, Salvadoran courts were still unable or unwilling to hear most claims for human rights violations against individuals for alleged involvement in financing, ordering, assisting, or carrying out death squad killings, including the assassination of Archbishop Romero. Even today, survivors of torture and relatives of killings committed by Salvadoran death squads and the armed forces as far back as the 1970s and early 1980s have declined to bring claims in El Salvador or elsewhere against the individuals responsible, for fear of violent reprisals. Complaint, ¶ 22. 131. J. Doe, specifically, was afraid to bring a case either inside or outside of El Salvador due to risks of violent reprisals against plaintiff and plaintiffs family. Although plaintiff has now brought this case, it is only with the protection of anonymity provided by filing under the name J. Doe. El Salvador remains a dangerous place, but changed circumstances now permit this case to be brought and improved cooperation of witnesses in El Salvador now makes it possible to present this case in a United States Court. Supplemental Declaration of Plaintiff J. Doe, ¶¶ 4-6, filed 9/28/04. 132. Fear is a primary reason that cases have never been brought. The inefficiency and corruption of the El Salvadoran judiciary contributed to the unwillingness of persons to assert claims in the courts of El Salvador. The judiciary bore "tremendous responsibility" for the impunity that persisted during the civil war and displayed a "glaring inability" to investigate *1135 crimes, particularly those committed with support of the government. Tutela Legal, the human rights office of the San Salvador archdiocese, brought more than 24,000 cases between 1982 and 1992. Of these, only about five or six were accepted by the courts and eventually all the defendants in those cases received amnesty. TC Report, p. 177-78; Hrg. Tr. 8/26/04 (Hernandez), 125:20-22. 133. The Truth Commission also found that the El Salvador Supreme Court held far too much power, "seriously undermining the independence of lower court judges and lawyers." The Truth Commission recommended that new justices be immediately named to the Supreme Court and that the court's powers be revised. TC Report, p. 177-78,181. 134. In addition to all these obstacles, El Salvador's 1993 Amnesty Law immunized nearly every person who had committed human rights abuses before and during the civil war. See Section V.F., supra. (2) No Private Prosecutions in Romero Case Due to Fear of Reprisals and Corruption of Salvadoran Judicial System. 135. No prosecution has ever been brought by Archbishop Romero's family in El Salvador, even though Salvadoran law permits private citizens to initiate criminal proceedings. Victims of a crime, or their relatives, may bring a private accusation for crimes subject to ex officio proceedings. As a general rule, a private attorney acting as prosecutor represents the victim and notifies the judge in writing of such representation. Code of Penal Procedure, Art. 50; Hrg. Tr. 8/26/04 (Hernandez), 127:4-13, 129:11-130:10. 136. However, fear of reprisal and the corruption of the judicial system continue to prevent any private prosecution for the Romero assassination. Tutela Legal spoke with two criminal lawyers during the 1980s about bringing a private prosecution on behalf of Archbishop Romero's family, but both refused to take the case for fear of reprisal. Even today private lawyers refuse to bring a private accusation. This specific example reflects the reality that very few private prosecutions have ever been brought for human rights violations and related crimes. Hrg. Tr. 8/26/04 (Hernandez), 127:4-13, 129:11-130; Hrg. Tr. 8/25/04 (Ramirez Amaya), 26:13-16, 52:8-11. (3) No State Prosecutimis in Romero Case. 137. Beyond the failed attempt to extradite Saravia, which was abrogated by Salvadoran courts, there have been no prosecutions brought by the Salvadoran government for the assassination of Archbishop Romero. Public prosecutors are selected by the Congress. Congress is controlled by the ARENA party and does not operate in an independent and nonpartisan manner. In practice, public prosecutors will not even consider bringing a state case concerning the assassination. Hrg. Tr. 8/25/04 (Ramirez Amaya), 52:5-7, 17-21; 53:15-45:1. 138. Even the modest efforts to investigate the case were disrupted. The Truth Commission found that the official investigation was "inefficient ... highly controversial and plagued by political motivations." The Supreme Court also actively intervened to prevent Saravia's extradition, thereby ensuring impunity for the perpetrators of the assassination. TC Report, pp. 127-28. (4) No Civil Liability in Romero Case. 139. [REDACTED] *1136 (5) Deterrent to Earlier Filing. 140. Due to the continuing climate of repression and active fear of reprisal, plaintiff was effectively inhibited from bringing this case in the courts of El Salvador and the United States. Although United States courts were independent from the intimidation and reprisal operative in El Salvador during the 1990-2003 time period, the plaintiff was subject to fear, intimidation, and was deterred by the example that the prior extradition attempt in a United States District Court had been thwarted by the Salvadoran court. 141. The totality of these conditions effectively barred Plaintiff from earlier filing this human rights case until the Plaintiffs lawyers and supporting organizations facilitated the commencement and prosecution of this case in 2003. A. Compensatory Damages. 142. [REDACTED] 143. [REDACTED] 144. [REDACTED] 145. [REDACTED] B. Archbishop Romero's Enduring Legacy. (1) Archbishop Romero's Theological Influence. 146. Archbishop Romero's legacy within the Roman Catholic Church is immense. The archdiocese of San Salvador, which he served as Archbishop, has formally nominated him to be canonized as a martyr of the church, and the Vatican is presently conducting the formal canonization process. Hrg. Tr. 8/26/04 (Hernandez), 155:18-156:24. 147. Many already refer to him as a saint, often as "Saint Romero of the Americas." Hrg. Tr. 8/24/04 (Wipfler), 79:18-80:11; Hrg. Tr. 8/27/04 (Acosta), 43:15-18; Declaration of Philip Berryman, ¶ 29, filed 8/20/04; Declaration of Rosa Nohemy Ortiz, ¶ 19, filed 8/20/04; Declaration of Anna Lisa Peterson, Ph.D., ¶ 8, filed 8/20/04; Declaration of Fr. Paul Schindler, ¶ 12, filed 8/20/04; Declaration of Jean Stokan, ¶ 16, filed 8/20/04; Declaration of Thomas Quigley, ¶ 7, filed 8/20/04. 148. In 1988, Westminster Abbey in London unveiled the busts of ten 20th Century martyrs that now stand over the main entrance to that historic church. Archbishop Romero is included, the last of the ten to be killed. Hrg. Tr. 8/27/04 (Guerra), 64:12-16; Declaration of Philip Berryman, ¶ 29, FILED 8/20/04; Declaration of Eileen M. Purcell, ¶ 20, filed 8/20/04. 149. Archbishop Romero's theological influence has been significant, contributing to ideas of the Christian church as the "people of God" rather than as a formal and remote institution; ideas of "accompaniment," which guide Christians in their social and political lives; broader understandings of the Christian concept of martyrdom; new concepts of leadership within the church, particularly priests' and nuns' obligations to exercise a "preferential option for the poor;" and an understanding of the church doctrine known as "Liberation Theology." Declaration of Carlos Ayala Ramirez, ¶ 22, filed 8/20/04; Declaration of Fr. Robert Stuart Pelton, ¶¶ 9-11, filed 8/20/04; Declaration of Anna Lisa Peterson, Ph.D., ¶ 4, filed 8/20/04; Declaration of Eileen M. Purcell, 122, filed 8/20/04; Declaration of Juan Sobrino y Pastor, S.J., ¶¶ 5-7, filed 8/20/04; Declaration of Prof. Juan Jose Tomayo Acosta, ¶¶ 9-10, filed 8/20/04. 150. In addition to his contribution to ideas, the model of his actions embodies this theology manifested by his religious and spiritual practices. The most evident example is his courageous denunciations of human rights abuses. Hrg. Tr. 8/24/04 (Gumbleton), 164:12-166:4; Declaration of Philip Berryman, ¶¶ 27-28, filed 8/20/04; *1137 Declaration of Anna Lisa Peterson, Ph.D., ¶ 5, filed 8/20/04. (2) Archbishop Romero's International Influence as a Proponent of Human Rights and Non-Violence. 151. Archbishop Romero's courageous defense of human rights, his solidarity with the poor, and his commitment to nonviolence and democracy, all rooted in a deep and abiding respect for the dignity of all human beings, in the face of real and continuing mortal intimidation which resulted in his assassination, have been an inspiring model to the world. During his life he came to be known as the "Voice of the Voiceless," and this model has stood for nearly 25 years as one of the world's most revered beacons of hope. He has been compared to Martin Luther King, Jr., and Mahatma Gandhi. Hrg. Tr. 8/24/04 (Wipfler), 80:12-81:17; Hrg. Tr. 8/27/04 (Acosta), 43:12-14, 44:6-9; Declaration of President Oscar Arias Sánchez, ¶¶ 11-13, filed 8/20/04; Declaration of Carlos Ayala Ramirez, ¶ 13, filed 8/20/04; Declaration of Maria Catriona Elena Bain de Alvarenza, ¶ 7, filed 8/20/04; Declaration of Representative Michael D. Barnes, ¶ V, filed 8/20/04; Declaration of Hector Miguel Antonio Dada Hirezi, 1125, filed 8/20/04; Declaration of Representative George Miller, ¶ 11, filed 8/20/04; Declaration of Adolfo Perez Esquivel, ¶ 11, filed 8/20/04; Declaration of Eileen M. Purcell, ¶ 22, filed 8/20/04; Declaration of Jean Stokan, ¶ 15, filed 8/20/04; Declaration of Archbishop Desmond Mpilo Tutu, ¶ 4, filed 9/20/04. 152. The impact of his murder is partially captured through literature and art. Plays honoring him have been produced worldwide, including the United States, France, and Germany. Numerous biographies have been published about him in French, German, Italian, English, Spanish, and Portuguese. There is a major motion picture about his death; there are medical clinics, student scholarships, community centers, and scholarship programs bearing his name. Hrg. Tr. 9/3/04 (Karl) 73:8-74:3. 153. Archbishop Romero's legacy as a continuing beacon of hope is manifest. Each March 24, there are religious services, memorials and marches in his memory all over the world. Hrg. Tr. 8/24/04 (Gumbleton), 165:24-166:15; Hrg. Tr. 8/27/04 (Guerra), 64:20-66:5; Exs. 78-82 (photos of memorials). C. Due to His Stature and the Unique Role that he Played Within El Salvador, the Damages Caused by the Assassination of Archbishop Romero Have Been Profound. (1) Loss of El Salvador's Primary Mediator/Bridge. 154. Archbishop Romero was widely recognized as the one person who could act as a bridge between the divided sectors of Salvadoran society. He was able to mediate labor disputes and many other types of conflicts because he was the one figure in El Salvador who was consistently respected and listened to by all sides. He was viewed by the U.S. government and many others as essential to any nonviolent or less-violent resolution of the crisis gripping El Salvador at the time. Hrg. Tr. 8/25/04 (White), [White Dep. 21:1-22:5]; Hrg. Tr. 9/3/04 (Karl), 74:13-23. (2) The Assassination of Archbishop Romero was a Major Catalytic Event that Helped to Precipitate El Salvador's Civil War. 155. Archbishop Romero acted as a critical bridge between the polarized sectors of Salvadoran society. Eliminating that bridge helped drive El Salvador into civil war. His killing—and the absolute impunity that his assassins enjoyed in its aftermath—signaled the futility of nonviolent methods of change. As Robert White, *1138 the then-U.S. Ambassador to El Salvador testified: Those who killed Monsignor Romero knew perfectly well what they were doing and what they would accomplish. They destroyed the one figure in El Salvador that could have served as a bridge, as a creative interpreter between all the different sides. And his removal by violence basically sent a signal that—that no dialogue was warranted, that what the Salvadoran rich and military were after was a total pressure of this burgeoning movement towards democratic change. Hrg. Tr. 8/24/04 (White) [White Dep. 28:15-29:13, 55:13-56:1]; see also Hrg. Tr. 9/3/04 (Karl), 74:13-23; Declaration of President Oscar Arias Sanchez, ¶ 7, filed 8/20/04; Declaration of Philip Berryman, ¶ 23, filed 8/20/04; Declaration of Hector Miguel Antonio Dada Hirezi, ¶ 17, filed 8/20/04. 156. The assassination also signaled that no one was safe. The message was clear: "If the Archbishop could be killed with impunity, then anyone could be." Ambassador White testified: the failure of the Salvadoran military to arrest and keep under arrest Roberto D'Aubuisson and Alvaro Saravia and their fellow conspirators, their failure to try them and convict them and put them into prison was another lesson to the Salvadoran people that impunity in El Salvador was alive and well, that there was no chance of getting justice from the system. And, therefore, the Archbishop not only did it—reinforced the image of a military that was a law unto itself. It also served as a recruiting tool for revolutionaries, because if you can kill an Archbishop, you know, you can kill anybody. No one is sacred. Hrg. Tr. 8/24/04 (White) [White Dep. 56:2-14]; see also Hrg. Tr. 9/03/04 (Karl) 91:20-21; Hrg. Tr. 8/27/04 (Acosta), 35:17-36:1; Hrg. Tr. 8/26/04 (Cortina), 110:16-20; Declaration of Eileen M. Purcell, ¶ 10, filed 8/20/04; Declaration of Carlos Ayala Ramirez, ¶ 18, filed 8/20/04; Declaration of Plazido Erdozoin Beroiz, ¶ 7, filed 8/20/04; Declaration of Maria Elena Galvan de Giron, ¶ 31, filed 8/20/04. 157. Romero's death also fueled support for both the unarmed and armed left, further polarizing the country. In April 1980, shortly after his murder, the Frente Democratico Revolucionario ("FDR") formed; it was the first organization in the history of El Salvador to unite all factions of the left and much of the center, reflecting the extent to which the actions of the military had destroyed the political center and driven its remnants to ally with the left. Archbishop Romero became their rallying cry and a major symbol for recruitment. Hrg. Tr. 8/24/04 (White) [White Dep. 56:1-57:1]; Hrg. Tr. 9/3/04 (Karl), 75:24-76:19. 158. As repression continued, this also fueled the establishment of a guerrilla army, which by the end of 1980, grew from five small armed factions to the Frente Farabundo Marti para la Liberation National ("FMLN"). In effect, the extraordinary state terror launched by the military and security forces united the armed left into a single command and produced the formation of a guerrilla army—an action they had never been able to achieve previously. Hrg. Tr. 9/3/04 (Karl) 76:25-78:5. 159. With two armies confronting each other, El Salvador had moved from widespread social conflict to a state of civil war. Hrg. Tr. 9/3/04 (Karl) 78:2-5. 160. Other prominent members of the nonviolent opposition were murdered in the ensuing months, along with hundreds of less prominent individuals. In November of 1980, six political leaders of the nonviolent FDR were killed by the armed forces. Hrg. Tr. 9/3/04 (Karl), 76:20-77:7; *1139 Hrg. Tr. 8/26/04 (Hernandez), 160:20-161:23. 161. The civil war between the Salvadoran government and the FMLN raged for the next 11 years. TC Report, pp. 28-29 and 58-62; Exs. 67-72 (photos of death squad victims). 162. Murders in El Salvador increased significantly following the Archbishop's death, further immersing the country in violence. The month prior to his death (February 1980) 237 people were killed; by June 1980, the number had grown to 1,000. Hrg. Tr. 9/3/04 (Karl) 79:16-80:5. 163. The number of murders following the Archbishop's assassination increased yearly. While approximately 1,000 civilians were killed in 1979, this figure rose to well over 11,000 in 1980 and 16,000 in 1981. Many of the civilians killed were young. As Ambassador White testified, "in the great majority, these were the killing of unarmed civilians, most of them young, young men, young boys that were just rounded up and herded and gunned down execution style. So, it was terrible. I mean, I'd seen enough dead 15 year olds to, you know, to last me the rest of my life." Hrg. Tr. 8/24/04 (White) [White Dep. 24:21-25:5]; see also Hrg. Tr. 9/3/04 (Karl) 83:17-21. 164. By the end of the war, estimates of civilian dead ranged from 75,000 (USAID) to 80,000 (World Bank), far higher on a per capita basis than in other cases of state terror such as Chile or Argentina. Hrg. Tr. 9/3/04 (Karl), 78:8-13, 83:22-84:7. 165. The military, security forces and death squads were responsible for "almost 85 percent" of these murders. TC Report, p. 43. 166. In addition to the incalculable cost of the thousands of lost lives, the economic damage was severe. The damage to El Salvador's infrastructure is estimated at $2.2 billion, including the destruction of schools, hospitals, and clinics. Hrg. Tr. 9/03/04 (Karl), 84:23^85:4. 167. The disruption of livelihoods and the profound dislocation of economy and society resulted in the decrease in domestic investment, the most important indicator of a country's growth, from 22% of GDP in 1979 to 12% in 1989, despite huge increases in U.S. aid. The real GDP declined by 12% during the 1980s, and per capita income dropped 25%. From a development perspective, this has been a generation of loss. By the end of the war, for example, health expenditures were a third of the Latin America average, illiteracy was almost twice the Latin American average, and infant mortality was significantly higher than the Latin American average. Hrg. Tr. 9/3/04 (Karl), 85:12-86:23. (3) More than One Million Salvadorans Driven into Exile. 168. At least 1.2 million Salvadorans— roughly one-fifth of the population—were forced into exile during the civil war that followed the assassination of Archbishop Romero. In addition, more than 600,000 Salvadorans were internally displaced within the country. Hrg. Tr. 9/3/04 (Karl), 87:3-10. 169. One of these refugees was Francisco Acosta Arevalo. A student of the Jesuit University of Central America, he was forced to sleep outside for days to avoid attacks by security forces and death squads. He was given an offer to join an armed opposition group, but declined due to his nonviolent principles. He believed his only alternative was to flee the country. Seventy-two of Mr. Acosta's relatives were killed during the war. His family is now dispersed among 14 countries, and they speak nine different languages. Hrg. Tr. 8/27/04 (Acosta), 36:2-38:22, 45:5-12. 170. Another typical member of the Salvadoran diaspora is Esther Chavez. *1140 She came under the suspicion of the Treasury Police when she organized a day care center for children. She had to flee the country after her father was captured. She stated that when she left in October 1980: I have mixed feeling regarding that I was in some way betraying my community. Because of my family's condition, I was able to leave the country. But the majority of people that was [sic] involved, they didn't have that chance. And that's why I felt I was betraying my community and my belief. And I was hoping that in two years, I would be able to go back and continue to work. But two years came to be four, six and many years. Hrg. Tr. 8/27/04 (Chavez), 14:22-16:11; 15:13-21. (4) The Killing was Particularly Brutal. 171. The very public nature of Archbishop Romero's assassination made it brutal to those who experienced the loss. As Archbishop Desmond Mpilo Tutu testified, "His assassination in public, with his people, was reminiscent of the assassination of another great man, Mahatma Gandhi. Such a brutal act demonstrated the arrogance of the perpetrators, their total disrespect for life and confidence in their impunity." Declaration of Desmond Mpilo Tutu, ¶ 4, filed 9/3/04. 172. The killing of Archbishop Romero was of a different character from many other atrocities in El Salvador, a sniper's bullet as opposed to accounts of torture and grotesque brutality. The powerful symbolism of Archbishop Romero's killing was just as brutal. He was killed while celebrating mass. The intentional profaning of the sacred, perpetrating an attack upon a faith deeply shared by the people. One eyewitness, a nun, described the killing: I was in the left wing, four meters away from the altar of the Temple of Atonement that he had dedicated with oil on the sixteenth of July one thousand nine hundred and seventy-four, and which this day he consecrated with his own blood at six fifteen in the afternoon. In his homily he made reference to "the grain of wheat that can't give life if it does not die," as though he felt this would be his Post humus [sic] Mass. During his homily he kept his eye on the main door, but then he moved to the center of the Altar to lay out the corporal before beginning the offertory. In that moment from the main door an assassin's bullet entered rapidly and exploded his heart. Due to the instinct of conservation, Monsenor Romero grabbed the table of the Altar and pulled the tablecloth onto which the hosts fell without being consecrated, and Monsenor fell at the feet of Christ, who had been his faithful model since his childhood, his youth, as a Priest, as a Bishop and as an Archbishop. In our Religious Community we interpreted this painful event as God saying, "TODAY I DON'T WANT YOU TC) OFFER BREAD AND WINE AS ALWAYS. TODAY YOU WILL BE THE VICTIM, OSCAR." Declaration of Maria de la Luz Cueva Santana, ¶ 6, filed 8/20/04. 173. This symbolism affected those who were not Catholic as well. An Evangelical minister, Raul Lopez Pacheco, testified as follows: What shocked me the most about the death of Monsenor Romero was the cruelty of the moment in which he was assassinated. For the entire Christian community the moment most noble and sacred is the presentation of the bread as the body of Christ; this has many implications because it was precisely at *1141 this point during mass when he was assassinated. Declaration of Raúl Lopez Pacheco, ¶ 8, filed 8/20/04; see also Declaration of Miguel Tomas Castro Garcia, ¶ 5, filed 8/20/04 (also a Protestant minister). 174. The killing of Archbishop Romero was part of an overall strategy of the junta to attack the church, particularly the adherents of Liberation Theology. Killing the country's foremost religious leader while celebrating mass most powerfully expressed this war on the church. Killing Romero in this way sent a message of terror and intimidation to all who shared his commitment to the faith. (5) It Became more Dangerous to Worship Following Archbishop Romero's Murder. 175. Archbishop Romero's killing served to unleash still more terror directed against the church in El Salvador. More priests were killed or driven into exile, many hundreds of catechists (lay church activists) were killed, and it became increasingly dangerous and difficult to participate in any religious services. Some worshipers were forced to practice their faith clandestinely. Hrg. Tr. 8/27/04 (Guerra), 66:13-67:10; Hrg. Tr. 8/26/04 (Hernandez), 161:3-18; Hrg. Tr. 8/27/04 (Chavez), 11:3-12:5, Declaration of Rosa Nohemy Ortiz, ¶¶ 11 & 15, filed 8/20/04; Declaration of Rigoberta Menchu Turn, ¶¶ 6-7, filed 8/20/04; Maria Catriona Elena Bain de Alvarenga, ¶¶ 6 & 8, filed 8/20/04; Declaration of Maria Clelia Flores Iraheta, ¶ 14, filed 8/20/04. (6) The People Were Deprived of Their Protector. 176. The death of Archbishop Romero caused many to feel that they were without protection from the repression. For many, his role as the "Voice of the Voiceless," meant that he was their only protection against attack. Many felt profoundly bereft and afraid. Hrg. Tr. 8/26/04 (Cortina), 110:21-22; Declaration of Maria Elena Galvan de Giron, ¶¶ 29-30, filed 8/20/04. 177. The loss of the one who was their protector created an atmosphere of fear that was acutely felt. See, e.g., Declaration of Meria Leonor del Carmen Chacon, ¶¶ 5 & 7, filed 8/20/04. (7) Many Shared a Sense of Profound Loss, as Archbishop Romero was Revered by many Almost as a Member of their Family. 178. Julia Elvira Chacon is a housewife who first met Archbishop Romero in 1963. Whenever he was in her town, he would drop in and she would "make some beans and a hot sauce the way he liked them." On March 24, 1980, her brother-in-law told her that he was there in her town, and so she went home to make dinner for him. The table was ready when she received the news that he had been killed. She is an old woman now, but that memory persists. There will always be an empty place at her table. Declaration of Julia Elvira Chacon, ¶¶ 5-6 & 14, filed 8/20/04. 179. Sara Sorto de Lopez, a dressmaker, testified that she was "greatly impacted by the death of Monsenor Romero," and recalled that he "enjoyed listening to the marimba and he came to my house to listen to it being played." Declaration of Sara Sorto de Lopez, ¶¶ 5 & 7, filed 8/20/04. 180. The death of Archbishop Romero caused many to experience profound sadness and horror. See, e.g., Declaration of Anay Emerita Gonzalez de Sosa, ¶ 5, filed 8/20/04; Declaration of Concha Marina del Carmen Leiva Argueta, ¶ 6, filed 8/20/04; Declaration of Rigoberto Membreno, ¶ 8, filed 8/20/04; Declaration of Ramon Eleazar Moran Colorado, ¶ 7, filed 8/20/04; *1142 Declaration of Maria Leonor del Carmen Chacon de Romero, ¶ 7, filed 8/20/04. 181. One reason that so many so personally felt the loss was the presence Archbishop Romero represented in their lives. Most of the country heard his homilies broadcast every Sunday. One could walk from village to village in the countryside and not miss a word, as it was heard from radios in every house and hut along the way. Hrg. Tr. 8/24/04 (White) [White Dep. 15:20-16:7]; Declaration of Fr. Paul Schindler, ¶ 5, filed 8/20/04; Declaration of Transito Ruano de Castro, ¶ 4, filed 8/20/04. (8) The Impact of the Killing has been Great and has Reached Sociological Dimensions. 182. The brutal, public and highly symbolic murder of Archbishop Romero, the "Voice of the Voiceless," during a troubled time in El Salvador's history when the country teetered on the brink of civil war, has had a profound impact upon those who survived the ensuing war, whether within El Salvador or among those who fled. Feelings of helplessness, powerlessness, fear, and genuine despair, within both the spiritual and social realms were experienced by many, and many were overwhelmed. A psychologist who works with refugees, Felix Kury, testified to this: Healing the scars of war and violence of these refugees is a difficult task. And it might be that all these activities help alleviate their suffering. For many of the relatives of the 75,000 civilians that were killed in the last twenty years, healing takes a quite different and profound meaning. Families will have to perceive that their loss and pain were not in vain. Since "El Dolor" (their pain) was collective, healing will also have to be in a dialectic process that comes from the social to the particular individual situation. Declaration of Felix Kury, ¶ 5, filed 8/20/04; see also Hrg. Tr. 9/3/04 (Karl), 87:14-89:1. 183. Holding accountable those responsible for Archbishop Romero's murder is one means to facilitate this healing. Declaration of Felix Kury, ¶ 5, filed 8/20/04 ("The trial of individuals involved in the death of Romero would be a significant part of the healing of all Salvadorans everywhere."). As Francisco Acosta testified, To me personally, and I am for sure for the members of my family, the point is: Should we forget? Should we forgive? How can we move on? Because this is heavy in misery for us. Extremely heavy. The fact I was invited to be a witness in this time, in this place, is a way to get a closure, saying, justice is done. I can move on in my life. Hrg. Tr. 8/27/04 (Acosta), 45:17-23. CONCLUSIONS OF LAW I. SUBJECT MATTER JURISDITION. 184. Plaintiff brings this case under the Alien Tort Claims Act, 28 U.S.C. § 1350 (the "ATCA"), and the Torture Victim Protection Act, Pub.L. No. 102-256, 106 Stat. 73 (1993) (codified at 28 U.S.C. § 1350 note) (the "TVPA"). This Court has jurisdiction over this action under the ATCA and 28 U.S.C. § 1331. II. PERSONAL JURISDICTION. 185. This Court has personal jurisdiction over Defendant Saravia, who is or was a resident in Modesto, California, at the time this action commenced and who continues to receive mail at 2401 Manor Oak Drive, Modesto, California 95355, where he was served with process in the Eastern District of California. *1143 186. Substitute service was affected on September 15 and October 18, 2003, following attempts to serve the defendant personally, by leaving a copy of the papers with the owner of 2401 Manor Oak Drive, Modesto, California 95355, the address at which Saravia had been residing and at which he is continuing to receive mail, and by then mailing the papers to Saravia at the Modesto address. Proof of Service, filed January 9, 2004. 187. Service is valid under Fed. Rule Civ. P. 4(e)(1), which permits service "pursuant to the law of the state in which the district court is located," and California Code Civ. P. § 415.20(b), which authorizes service at a person's "usual mailing address other than a United States Postal Service post office box, in the presence of a competent ... person apparently in charge of his or her office, place of business or usual mailing address ..., at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint ... to the person to be served at the place where a copy of the summons and complaint were left ...." 188. A registered process server served the Summons and Complaint and related papers on the owner of the usual mailing address for Saravia, personally on October 18, 2003, and explained the nature of the papers, and thereafter by mail on October 21, 2003, to Defendant's usual mailing address, 2401 Manor Oak Drive, Modesto, California 95355. 189. Based on a verified declaration under penalty of perjury of substituted service, the Court entered Saravia's default by Order of the Clerk dated April 13, 2004. 190. Substitute service has been made on the correct Alvaro Rafael Saravia. The Alvaro Rafael Saravia who was living at and continues to receive mail at 2401 Manor Oak Drive, Modesto, California, shares the same birthdate—February 16, 1946—with the Alvaro Rafael Saravia sought to be extradited to El Salvador to face charges in connection with the assassination of Archbishop Romero. Smith Decl. ¶¶ 4-5, Ex. A; Criminal Complaint, U.S. v. Alvaro Rafael Saravia Merino, 11/25/87, and supporting affidavit of Sharon L. Kegerreis, ¶ 5. That same report shows that Saravia is associated with a previous address in Florida and has a Social Security Number issued in Florida between 1985 and 1986, where he was known to be living at the time the extradition proceedings commenced. Smith Decl. ¶¶ 4-5. Ms. Olsson, who lived at and owns the 2401 Manor Oak Drive residence met Saravia in Miami, told Saravia about the type of city Modesto was, and Saravia moved to Modesto. Ms. Olsson was told by Saravia that he had family in Miami and Ms. Olsson knows that Saravia used to be in the Salvadoran Air Force. Kaufman Decl. ¶¶ 4-5. 191. The evidence preponderates that the correct Alvaro Rafael Saravia was validly served with the Summons and Complaint in Modesto, California, on September 15 and October 18 and 21, 2003. III. DEFAULT PROCEEDING. 192. The entry of default deems Saravia to have admitted every well-pleaded allegation of the complaint except those relating to damages. Bender Shipbuilding & Repair Co., Inc. v. The Vessel DRIVE OCEAN V., 123 F.Supp.2d 1201, 1208 (S.D.Cal.1998); see also United States v. Woody, No. CIV.S-98-0442, 1999 U.S. Dist. LEXIS 9088 (E.D. Cal. June 2, 1999). The entry of default conclusively establishes a defendant's liability. Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir.1990); Bender Shipbldg. & Repair, 123 F.Supp.2d at 1208; Taylor Made Golf Co., Inc. v. Carsten Sports, *1144 Ltd., 175 F.R.D. 658, 661 (S.D.Cal.1997); United States v. Wight, No. CIV.S-98-0442, 2001 U.S. Dist. LEXIS 22785 (E.D.Cal. Dec. 14, 2001). 193. Here, the facts pleaded in the Complaint establish Plaintiffs claims of extrajudicial killing in violation of the TVPA and extrajudicial killing and crimes against humanity in violation of the ATCA. This alone is sufficient to establish Saravia's liability, although Plaintiff also has presented independent evidence in support of its claim, and evidence to establish its damages. Fed.R.Civ.P. 55(b). IV. LIABILITY UNDER THE TVPA AND ATCA A. The Statutory Scheme. (1) ATCA. 194. The ATCA states: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. 28 U.S.C. § 1350. 195. In Sosa v. Alvarez-Machain, the United States Supreme Court held that the ATCA gives federal courts jurisdiction to hear claims by an alien for torts in violation of the law of nations. It does not itself provide a cause of action, but provides jurisdiction over certain international law claims, to the extent those claims have been incorporated into the common law. As the Court explained: In sum, although the [ATCA] is a jurisdictional statute creating no new causes of action, the reasonable inference from the historical materials is that the statute was intended to have practical effect the moment it became law. The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time. Sosa v. Alvarez-Machain, ___ U.S. ___, ___, 124 S.Ct. 2739, 2761, 159 L.Ed.2d 718 (2004). 196. When the ATCA was enacted in 1789, only three torts were recognized under the common law as being violations of the law of nations "with a potential for personal liability:" violation of safe conduct, infringement of the rights of ambassadors, and piracy. Id. at 2761. 197. A majority of the Court found, however, that the "international law violations" recognized by federal common law did not remain frozen as of 1789. "We assume, too, that no development in the two centuries from the enactment of § 1350 to the birth of the modern line of cases beginning with Filartiga v. PenaIrala, 630 F.2d 876 (2d Cir.1980), has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law; Congress has not in any relevant way amended § 1350 or limited civil common law power by another statute." Sosa, 124 S.Ct. at 2761. However, the recognition of a claim under the "present-day law of nations" as an element of common law is circumscribed to "norm[s] of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized." Id. at 2761-2762. 198. The norms amenable to being the subject of the ATCA must be "specific, universal and obligatory." Id. at 2765. 199. As described below, both extrajudicial killing and crimes against humanity meet the specific, universal and obligatory standard. *1145 (2) TVPA. 200. The TVPA was passed by Congress in 1991 and enacted in 1992. 106 Stat. 83 (passed Mar. 12, 1992). It sets forth an unambiguous and separate jurisdictional basis for civil actions in federal courts for redress against the acts of extrajudicial killing and torture. S.Rep. No. 102-249, p. 3 (1991); H.R.Rep. No. 102-367, pp. 2-3 (1991). The TVPA was intended explicitly to ratify the ATC by denoting that aliens also can bring a claim under its aegis. H.R.Rep. No. 102-367, pp. 3-4 (1991). Further, the TVPA extended the civil remedy to United States citizens. S.Rep. No. 102-249, p. 3 (1991); H.R.Rep. No. 367, p. 3 (1991).[2] 201. As the U.S. Supreme Court recently stated in Sosa, "[A] clear mandate appears in the Torture Victim Protection Act of 1991, 106 Stat. 73, providing authority that `establish[es] an unambiguous and modern basis for' federal claims of torture and extrajudicial killing." H.R.Rep. No. 102-367, pt. 1, p. 3 (1993); Sosa, 124 S.Ct. at 2763. 202. The TVPA states: 2.(a) An individual who, under actual or apparent authority, or color of law, of any foreign nation ... (2) subjects an individual to an extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death. 28 U.S.C. § 1350 (note). 203. Although the TVPA provides a statutory basis for a claim for extrajudicial killing, the enactment of the TVPA did not diminish the scope of the ATCA in any way. Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir.1995) ("[t]he scope of the Alien Tort Act remains undiminished by enactment of the Torture Victim Act."); see also Wiwa v. Royal Dutch Petroleum Company, No. 96 CIV.8386, 2002 WL 319887, *4 (S.D.N.Y. Feb.28, 2002) ("This Court reads Kadic I to hold that the TVPA did not preempt torture and summary execution claims under the ATCA.... In fact, no court that has evaluated ATCA claims since the enactment of the TVPA has held that the TVPA in any way preempts ATCA claims for torture and extrajudicial killings.... [T]he TVPA simply provides an additional basis for assertion of claims for torture and extrajudicial killing."); see also S.Rep. No. 102-249, p. 3 (1991) ("The ATCA has ... important uses and should not be replaced"); accord H.R.Rep. No. 102-367, p. 3 (1991). Plaintiff may assert a claim for extrajudicial killing under both the TVPA and ATCA. B. Plaintiff Has Standing to Bring This Action Under the TVPA and ATCA. (1) TVPA. 204. [REDACTED] 205. [REDACTED] 206. [REDACTED] (2) ATCA. 207. The ATCA has no explicit standing requirements. To ascertain, however, whether Plaintiff has standing to bring a claim under the ATCA, the Court either follows the approach of the TVPA to look to California law (which establishes standing here), or employs a choice of laws analysis to look to Salvadoran law. See Alvarez-Machain v. U.S., 331 F.3d 604, 632-33 (9th Cir.2003) (employing choice of law analysis) (issue not reached by the United States Supreme Court in Sosa v. *1146 Alvarez-Machain, 540 U.S. 1045, 124 S.Ct. 807, 157 L.Ed.2d 692 (2003)). The former approach, was adopted in Xuncax v. Gramajo, 886 F.Supp. 162, 191 (D.Mass.1995); cf. Papa v. U.S., 281 F.3d 1004, 1012 (9th Cir.2002) (finding TVPA closest analogue to ATCA for purposes of determining statute of limitations under ATCA). The application of Salvadoran law does not affect the outcome. (3) Salvadoran Law. 208. If a choice of law analysis is undertaken, the Court looks to the law of El Salvador, but only to the extent it does not frustrate the purpose of the ATCA. See Tachiona v. Mugabe, 234 F.Supp.2d 401, 419 (S.D.N.Y.2002) (choice of law determination should not compel "dispositive application of foreign law where the municipal rule of decision may conflict with federal law or international standards"); see also Filartiga v. Pena-Irala, 577 F.Supp. 860, 863-64 (E.D.N.Y.1984) ("the court should consider the interests of Paraguay to the extent they do not inhibit the appropriate enforcement of the applicable international law or conflict with the public policy of the United States"). 209. [REDACTED] 210. In El Salvador, a civil law jurisdiction, a civil action for wrongful death may be brought only in connection with a criminal action, as part of the penal proceeding. The civil proceeding arises from criminal responsibility. See Salvadoran Civil Code Art.2065 ("the person who commits a felony or a misdemeanor has the obligation to compensate, independently of the punishment established by the law for that particular fact."); see also Art. 114, 115, 116, 117 & 130 of the Penal Code; Art. 69 and 89 of the Code of Penal Procedure; Hrg. Tr. 8/25/04 (Ramirez Amaya), 47:6-10; Noya Decl. ¶¶ 3, 4. 211. [REDACTED] C. Equitable Tolling Avoids the Bar of the Statute of Limitations. 212. Plaintiff filed the Complaint on September 12, 2003. Although there is no express limitation period prescribed by the ATCA, the Ninth Circuit has held the applicable limitations period to be the 10-year period set out in the TVPA. U.S.C. § 1350, (note) § 2(c) 28; Papa v. U.S., 281 F.3d at 1012 ("the statute of limitations applicable to the ATCA is that provided by the TVPA.") 213. Courts, however, have held that the 10-year TVPA limitation period is subject to equitable tolling. Hilox) v. Marcos, 103 F.3d 767, 773 (9th Cir.1996); Cabello, 157 F.Supp.2d at 1367-68 citing cases and quoting H.R.Rep. No. 102-367, at 5 (1991). The Cabello court concluded that "the TVPA's ten-year limitations period is equitably tolled, where either `(1) defendant's wrongful conduct prevented plaintiff from asserting the claim; or (2) extraordinary circumstances outside the plaintiffs control made it impossible to timely assert the claim.'" Id. at 1368 (quoting Doe v. Unocal Corp., 963 F.Supp. 880, 897 (C.D.Cal.1997) (opinion vacated on other grounds by Doe v. Unocal Corp., 395 F.3d 978, 2003 WL 359787 (9th Cir. Feb.14, 2003)) and citing Forti v. Suarez-Mason, 672 F.Supp. 1531, 1549 (N.D.Cal. 1987)). This is consistent with the policy expressed by the Court in Forti, 672 F.Supp. at 1548, "of providing a forum for claims of violations of internationally recognized human rights." See also, S. Rep. 102-249, p. 10 ("the legislation provides for a 10-year statute of limitations, but explicitly calls for consideration of all equitable tolling principles in calculating this period with a view toward giving justice to Plaintiffs rights."). 214. Forti held that the inability to obtain justice from Argentina's courts could *1147 provide a basis for tolling the limitation period: Plaintiffs claim that it was impossible for them to gain relief for defendant's wrongdoing n the courts of Argentina from the time their claims accrued until the demoncratically-elected [sic] government assumed power. As defendant points out, plaintiffs were not actually denied access to the Argentine courts. Nominally, the Argentine courts retained their powers to adjudicate civil claims against military officers and to grant habeas relief. As a practical matter, however, access to Argentine courts may have been denied to plaintiffs. Plaintiffs present facts indicating that the court retained of its powers over the military in form only and that effectively, no relief ivas or could be granted by the Argentine courts. Additionally, given the pervasiveness of the military's reign of terror, it may be possible for plaintiffs to demonstrate that members of the judiciary neglected to apply laws granting relief out of fear of becoming the next victim of the "dirty war." 672 F.Supp. at 1550 (emphasis added). 215. In this case, there is clear support in the Complaint and in the record for tolling the limitations period. As in Forti, Plaintiff could not have obtained justice from Salvadoran courts as a result of Plaintiffs lawyers, and some judges' objective and reasonable fear of retaliation or judicial complicity with the repressive regime. This fear extended to proceedings brought outside of El Salvador as well. Supplemental Declaration of Plaintiff J. Doe, ¶ 4, filed 9/28/04. 216. The evidence is that from 1980 to 1994, and even through to the present, any person who leveled allegations against active or former members of the military risked reprisal, including death. Complaint, ¶ 22, Hrg. Tr. 8/25/04 (Ramirez Amaya), 26:12-19. Salvadorans also feared retaliation from the ARENA-run government and its death squads, which worked closely with the armed forces. Hrg. Tr. 8/25/04 (Ramirez Amaya), 52:12-21. 217. Judges were murdered at a high rate. As the Truth Commission concluded, "In the 1980s, it was dangerous to be a judge in El Salvador," and during that decade, 28 judges were killed. TC Report, p. 170. The judiciary had little power to defend itself against violence. It "fell victim to intimidation and the foundations were laid for its corruption.... [I]ts ineffectiveness steadily increased until it became, through its inaction or its appalling submissiveness, a factor which contributed to the tragedy suffered by the country." TC Report, pp. 172-73. 218. "Even after the Salvadoran security forces were disbanded pursuant to the Peace Accords, Salvadoran courts were still unable or unwilling to hear most claims for human rights violations against individuals for alleged involvement in financing, ordering, assisting, or carrying out death squad killings, including the assassination of Archbishop Romero." Complaint, ¶¶ 22, Hrg. Tr. 8/26/04 (Hernandez), 127:6-13, 129:11-130:10; Hrg. Tr. 9/03/04 (Karl) 51:19-25. "Even today, survivors of torture and relatives of killings committed by Salvadoran death squads and the armed forces as far back as the 1970s and early 1980s have declined to bring claims in El Salvador or elsewhere against the individuals responsible for fear of violent reprisals." Complaint, ¶ 22, Hrg. Tr. 9/3/04 (Karl) 88:21-89:1. In fact, the plaintiff has brought this case under a pseudonym precisely because of fear of reprisals. 219. Due to this same fear of violent reprisals, plaintiff was unable to bring this claim in a U.S. Court earlier. Although plaintiff has now brought this case, it is only with the protection of filing under the *1148 pseudonym J. Doe. El Salvador remains a dangerous place, but changes in the country have now allowed plaintiffs attorneys to investigate the case and obtain the cooperation of witnesses in El Salvador. Supplemental Declaration of J. Doe, ¶¶ 4-5, filed 9/28/04. 220. In thwarting extradition of Defendant Saravia, in judicially validating Amnesty laws, and in rejecting direct, credible evidence of Defendant's participation in the assassination, the courts of El Salvador have foreclosed the opportunity for plaintiffs case to be maintained before the judicial system of El Salvador and have evidenced their inability and unwillingness to provide a fair, honest, and reliable forum for the hearing of Plaintiffs claims. 221. For these reasons, the 10-year limitation period applicable to the TVPA and ATCA has been equitably tolled through the date of filing of the complaint, September 12, 2003. D. Defendant is Liable Under the TVPA for Extrajudicial Killing. 222. Under the TVPA, 2.(a) An individual who, under actual or apparent authority, or color of law, of any foreign nation ... (2) subjects an individual to an extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death. 28 U.S.C. § 1350 (note). 223. Extrajudicial killing is defined as "a deliberate killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Id. at § 3(a). The TVPA also requires that a plaintiff exhaust "adequate and available" local remedies and provides a ten-year statute of limitations. Id. at § 2(b) and (c). (1) Saravia's Role in the Assassination. 224. Saravia's role in coordinating and planning the assassination of Archbishop Romero is sufficient to establish liability against him under the TVPA and ATCA as a direct participant, conspirator, accomplice, and aider and abettor. 225. In Tachiona v. Mugabe, 216 F.Supp.2d 262, 270 (S.D.N.Y.2002) the court found members of Zimbabwe's ruling party liable under the TVPA for "organizing] targeted violence against political opponents and their families and supporters, assassinations and assassination attempts, kidnappings, tortures, rapes, beatings, mass destruction of property, and mob riots in a consistent and focused campaign of terror designed to crush political opposition to ZANU-PF." Other cases have found defendants liable for authorizing or directing torture or killings. See, e.g., Kadic, 70 F.3d at 232. 226. As explained by the Court in Mehinovic v. Vuckovic, 198 F.Supp.2d 1322 (N.D.Ga.2002), the TVPA encompasses the liability of accomplices: United States Courts have recognized that principles of accomplice liability apply under the ATCA to those who assist others in the commission of torts that violate customary international law. Similarly, the Senate report on the TVPA notes that that statute is intended to apply to those who "ordered, abetted, or assisted" in the violation. Principles of accomplice liability are well-established under international law. Relevant international conventions explicitly provide that those who assist in the commission of acts prohibited by international law may be held individually responsible. [Under the International Criminal Tribunal for the Former Yugoslavia], it is *1149 sufficient that the accomplice knows that his or her actions will assist the perpetrator in the commission of the crime. Id. at 1355-56 (footnotes omitted); see also Wiwa, 2002 WL 319887 at *16 ("the Court finds that the language and legislative history of the TVPA supports liability for aiders and abettors of torture and extrajudicial killings."). Cabello v. Fernandez Larios, 205 F.Supp.2d 1325, 1333 (S.D.Fla. 2002). 227. Saravia's significant involvement in Archbishop Romero's assassination, which was not authorized by any previous judgment of a court, includes the following: • Saravia was in charge of the operation and was involved in paying the fees of the assassin. Complaint, ¶¶ 15, 19; TC Report, pp. 127, 130, 131; IACHR Decision (citing with approval the findings of the TC Report), ¶¶ 3, 20, 43, 53, 54. • Saravia instructed his driver, Amado Garay, to drive him to a staging home. Hrg. Tr. 8/24/04 (Garay), 103:22-25; 104:1-23; TC Report, pp. 127, 130-131. • Saravia emerged from the house with a tall man with a beard. Hrg. Tr. 8/24/04 (Garay), 105:22-106:5. • Saravia told Garay to drive this man to an undisclosed location. Hrg. Tr. 8/24/04 (Garay), 105:9-106:3, TC Report, pp. 127,130-131. • Saravia said to the tall, bearded man, "It's better to shoot in the head because maybe he have [sic] a bulletproof vest. You have to be sure he got [sic] killed." Hrg. Tr. 8/24/04 (Garay), 106:7-17. • Saravia informed Garay that they would be provided with protection, as a vehicle would be driving behind him. Hrg. Tr. 8/24/04 (Garay), 106:7-17. • Saravia directed Garay to get into a red Volkswagen in order to drive the tall, bearded man. The man had a long rifle with a telescopic lens. Complaint, ¶ 16, Hrg. Tr. 8/24/04 (Garay), 106:13-14, 18; 20-23; 107:17; 111:12-15; TC Report, p. 127, 130-131. • When Garay and the shooter returned to the staging house, they were greeted by Saravia who informed the shooter that he had successfully assassinated Archbishop Romero, as Saravia had heard the news on the radio that the Archbishop had died instantly. Complaint ¶ 16; Hrg. Tr. 8/24/04 (Garay), 109:20-22, 24-25; 110:1-4. • Saravia, Nelson Morales, Nelson Garcia and Garay drove back to Saravia's house in a Jeep Cherokee, which was the vehicle regularly used for transporting Saravia. Hrg. Tr. 8/24/04 (Garay), 101:24; 115:7. • Several days later, Saravia reported to Major D'Aubuisson, "mission completed." Complaint, ¶ 17, Hrg. Tr. 8/24/04 (Garay), 127:1-11, 16-21. • Saravia also delivered a sum of money, which earlier had been provided to him to pay the assassin, to the assassin or his agent. Complaint, ¶ 17; TC Report, p. 127,131. 228. Based on substantial evidence, including eyewitness testimony, the egregious and significant conduct of the defendant, Saravia makes him liable, as a direct participant, coconspirator, and aider and abettor, for the assassination of Archbishop Romero. (2) Apparent Authority. 229. Saravia acted under apparent authority and color of law of the government of El Salvador. Under Section 2(a) of the TVPA, in order to make out a claim for extrajudicial killing, plaintiff must show that Saravia acted "under actual or apparent authority, or color of law, of any foreign nation." Courts have *1150 generally required this showing for extrajudicial killing claims under the ATC as well. See Wiwa, 2002 WL 319887 at *13. To meet this definition, plaintiff must show "some governmental involvement" in the Romero assassination. See Kadic, 70 F.3d at 245 (quoting H.R.Rep. No. 102-367, at 5 (1991)). 230. Courts have looked to the jurisprudence of 42 U.S.C. § 1983 as a guide to determine when persons who are not themselves government officials, nonetheless act under apparent authority or color of law. Under § 1983, the standard is met when a person "acts together with state officials" or acts with "significant state aid." Id. Other courts have applied the virtually identical "joint action" test requiring a "substantial degree of cooperative action" between the defendant and the government. Wiwa, 2002 WL 319887 at *13; see also Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289, 328 (S.D.N.Y.2003); Tachiona v. Mugabe, 169 F.Supp.2d 259, 313 (S.D.N.Y.2001). 231. Here, plaintiff has demonstrated by substantial evidence that Saravia acted under apparent authority and color of law of the Salvadoran government. Specifically: • The death squad responsible for planning and carrying out the assassination of Archbishop Romero operated "with the financial and logistical support of the Salvadoran armed forces and far right Salvadoran civilians inside and outside El Salvador." Complaint, ¶¶ 12-14; TC Report, pp. 132, 134, 137. • In 1980, death squad operations were frequently coordinated with the El Salvador Armed Forces. The clandestine nature of their actions made it possible to cover up the state responsibility and to create a condition of total impunity for the killers. Complaint, ¶ 19; TC Report, pp. 132, 134, 137; Hrg. Tr. 8/27/04 (Karl) 80:24-25, 81:1-8. • Death squads incorporated active members of the El Salvador state security forces in their ranks and had the support of the corresponding official institutions. Complaint, ¶ 19; TC Report, pp. 132, 134, 137; Hrg. Tr. 8/27/04 (Karl) 80:24-25, 81:1-8. • The Salvadoran government conspired to cover up responsibility for the assassination. Complaint, ¶ 19. • The National Police, contrary to standard operating procedure, did not provide security at the autopsy. Hrg. Tr. 8/25/04 (Ramirez Amaya), 27:5-7; 30:13-19. • Hours after Romero's body had been taken to the Policlinica Hospital, armed soldiers in camouflage uniforms filled the chapel and surrounding areas. However, the National Police, contrary to the law and standard operating procedure, refused to assist Judge Ramirez Amaya in investigating the chapel as a crime scene later that night. Hrg. Tr. 8/26/04 (Cortina), 105:2-4; 108:10-14, 15-17, 18-19; 109:2-10; Hrg. Tr. 8/25/04 (Ramirez Amaya), 33:8-15; 34:14-17. • The National Police attempted to murder Judge Ramirez Amaya. Ten minutes after the attempted assassination against him, a National Police inspector called Ramirez Amaya and expressed surprise that he was still alive and confirmed knowledge about the recent attempt on the Judge's life. Hrg. Tr. 8/25/04 (Ramirez Amaya), 41:21-25; 42:1-9, 10-15. Marked National Police vehicles parked on the street did not move despite the gunfire. Hrg. Tr. 8/25/04 (Ramirez Amaya), 42:24-25; 43:1-5, 7-9. A neighbor identified the man in the getaway car *1151 as a National Policeman. Hrg. Tr. 8/25/04 (Ramirez Amaya), 43:10-25. 232. These facts more than preponderate to meet the tests of Kadic and Wiwa, that in carrying out the assassination of Archbishop Romero, Saravia acted under apparent authority and color of law of the government of El Salvador. (3) Plaintiff has Shown that no Legal Remedy was or is Available in El Salvador. 233. Under the TVPA, a claimant must show that he or she has "exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred." 28 U.S.C. § 1350, (note) § 2(b). However, when foreign remedies are "unobtainable, ineffective, inadequate, or obviously futile," exhaustion of remedies is generally not required. Xuncax, 886 F.Supp. at 178. See also S.Rep. No. 102-249, p. 9 (1991) (plaintiff in a TVPA case may rebut alleged availability of domestic remedies by showing they are "ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.") Plaintiff has established that no legal remedy was or is available in El Salvador for a civil suit against Saravia. (i) Inability to Bring Civil Suit Without Criminal Prerequisite Under Salvadoran Law. 234. Plaintiff cannot obtain a civil remedy against Saravia—or any other person involved in Archbishop Romero's assassination —unless a criminal prosecution first occurs. In El Salvador, as in other civil law countries, criminal responsibility is necessary in order to obtain civil damages flowing from that conduct. Noya Decl., ¶ 2; Hrg. Tr. 8/25/05 (Ramirez Amaya), 47:6-7, 6-10; see also Art. 130 of the Penal Code ("any person liable for a crime or misdemeanor is also civilly liable. Any person who has suffered injury arising from a crime has the right to redress and compensation."). 235. In particular, under Salvadoran law, homicide, aggravated homicide and murder are specific intent or public actionable crimes. An action for civil liability for the killing or wrongful death of an individual can only be brought as part of the penal proceeding to investigate and prosecute such crime, and the wrongful death action may only commence upon the termination of the penal phase. Hrg. Tr. 8/25/04 (Ramirez Amaya), 47:6-10; 49:13-17; see also Art. 90 of the Code of Penal Procedure ("the civil action against the participants in the crime will be only brought in conjunction with the penal action."). 236. Salvadoran law permits private citizens to initiate criminal proceedings. Victims of a crime, or their relatives, may bring a private accusation for crimes subject to es officio proceedings. Art. 50 of the Code of Penal Procedure. As a general rule, a private attorney acting as prosecutor represents the victim and notifies the judge in writing of such representation. However, fear of reprisal and the corruption of the judicial system continue to prevent any private criminal prosecution for the Romero assassination. See Hrg. Tr. 8/26/04 (Hernandez), 127:6-13; 129:11-130:6 (explaining unwillingness of private attorneys to bring case). Even today private lawyers would refuse to bring a private accusation in El Salvador. Hrg. Tr. 8/26/04 (Hernandez), 130:7-10; Hrg. Tr. 8/25/04 (Ramirez Amaya), 52:8-11. 237. Similarly, beyond the failed attempt to extradite Saravia, there have been no prosecutions brought by the Salvadoran government for the assassination of Archbishop Romero. Public prosecutors are selected by the Congress. Hrg. Tr. 8/25/04 (Ramirez Amaya), 53:15-18. Congress is controlled by the ARENA *1152 party and does not operate in an independent and nonpartisan manner. Hrg. Tr. 8/25/04 (Ramirez Amaya), 52:20-21; 53:19-54:1. In practice, public prosecutors will not even consider bringing a state case concerning the assassination. Hrg. Tr. 8/25/04 (Ramirez Amaya), 52:5-7. 238. Because there has never been a successful criminal prosecution against the killers of Archbishop Romero, and the opportunity to do so has effectively been abrogated, plaintiff has no judicial remedy in El Salvador. (ii) D'Aubuisson and the Salvadoran Supreme Court Actively Thwarted an Attempt to Obtain a Criminal Conviction Against Saravia. 239. In the one attempt to pursue a prosecution in connection with the Romero assassination, Roberto D'Aubuisson and the Salvadoran Supreme Court acted to ensure that no prosecution would result. See Ex. 96 ("The Saravia Extradition and the D'Aubuisson Mafia") at 1. ("There is ample circumstantial evidence that an effort is underway to obstruct the extradition from the U.S. of Cpt. Alvaro Rafael Saravia, the cashiered Salvadoran Air Force officer charged with complicity in the March 24, 1980, assassination of Archbishop Oscar Arnulfo Romero. The effort is traceable to Roberto D'Aubuisson and associates through a document telefaxed from D'Aubuisson's Mariscos Tazumal office to Saravia's U.S. lawyer for entry into the Saravia extradition court records."); id. at 8 ("prosecution is unlikely as long as D'Aubuisson and his backers are free to manipulate the Salvadoran judicial system.").[3] 240. The Chief Judge of the Supreme Court at the time was the same Jose Francisco Guerrero who had served as Maj. D'Aubuisson's personal lawyer and who submitted the notorious "Pedro Lobo confession" to the Fourth Criminal Court when he was the Public Prosecutor in 1985. Id.; Hrg. Tr. 9/3/04 (Karl), 51:11-53:1, 55:23-56:10. *1153 241. The Commission found the Salvadoran Supreme Court "played an active role that served to hinder the extradition from the United States and later imprisonment of former Capt. Saravia in El Salvador." The Truth Commission determined the decision was politically motivated. Complaint, ¶ 20; TC Report, p. 131; IACHR Decision, ¶ 98. 242. No further efforts were made in El Salvador to prosecute Saravia or anyone else for the murder of Archbishop Romero. Complaint, ¶ 21. (iii) The Amnesty Law Further Ensured There Would Be No Remedy For Plaintiff in El Salvador. 243. Further ensuring that there would be no remedy in El Salvador, the Amnesty Law provided that Saravia would never face criminal or civil responsibility for the assassination. See Amnesty Law, Arts. 1, 4. 244. Thus, on March 31, 1993, Judge Luis Antonio Villada Figueroa applied the Amnesty Law to Saravia and dismissed with prejudice the case against him for the murder of Archbiship Romero. IACHR Decision, ¶¶ 22, 98, n. 100. Specifically, Judge Villeda found that the Romero assassination was a "political" crime which provides Saravia with amnesty under the 1993 law. IACHR Decision, ¶ 98, fn.100; Amnesty Law, ¶¶ 2, 4(c). Judge Villeda's decision was upheld by the First Criminal Chamber on May 13, 1993, which entered a final judgment in the case because the time for the Office of the Public Prosecutor to file a motion had expired without any action. IACHR Decision, ¶ 101. The First Criminal Chamber thereby ruled that its decision has res judicata (claim preclusive) effect with regard to Saravia in the Romero case. IACHR Decision, ¶ 22. This decision bars any criminal prosecution of Saravia for the Romero assassination in El Salvador. (iv) IACHR Determined That Domestic Remedies Had Been Exhausted. 245. Art. 46(1)(a) of the American Convention requires the exhausting of domestic remedies before the "mechanisms of international protection established in the American Convention are triggered." IACHR Decision, ¶ 25. In finding that there had been exhaustion, the IACHR stated that Judge Villeda's decision applying the Amnesty Law to Saravia and dismissing with prejudice the case against him for the murder of Archbishop Romero "had the effect of deciding the instant case in the domestic jurisdiction of El Salvador. Once this domestic means of settling the matter posed is exhausted in the internal jurisdiction of El Salvador, the mechanisms of international protection established in the American Convention are triggered." IACHR Decision, ¶ 25. 246. As found by the IACHR, and based on the evidence presented at the hearing, plaintiff has met the requirements of the TVPA by establishing that domestic remedies have been exhausted or that remedies are "unobtainable, ineffective, inadequate, or obviously futile." Xuncax, 886 F.Supp. At 178. E. Defendant Is Liable Under The ATCA. 247. Plaintiffs claims under the ATCA were for extrajudicial killing and crimes against humanity. Complaint, ¶¶ 25, 29. (1) Extrajudicial Killing. 248. Although the ATCA does not provide a definition of extrajudicial killing, under international law, extrajudicial killing is a norm that is "specific, universal, and obligatory." It meets the requirements *1154 of Sosa to be recognized under federal law. 249. The Ninth Circuit has held that "[t]he prohibition against summary execution... is ... universal, obligatory and definable." In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir.1994) (citing Forti 672 F.Supp. at 1541, amended, 694 F.Supp. at 710-11). The Xuncax court, relying in part on "[a]n affidavit signed by twenty-seven widely respected scholars of international law [that] attests that every instrument or agreement that has attempted to define the scope of international human rights has `recognized a right to life coupled with a right to due process to protect that right,'" concluded that, "[a]s with official torture, the practices of summary execution, `disappearance' and arbitrary detention have been met with universal condemnation and opprobrium." Xuncax, 886 F.Supp. at 185 (citing Forti 694 F.Supp. at 711). 250. Congress' enactment of the TVPA, singling out torture and extrajudicial killing, confirms that extrajudicial killing provides a cause of action under federal law. Sosa, 124 S.Ct. at 2763, ("a clear mandate appears in the Torture Victim Protection Act of 1991 ... providing authority that `establish[es] an unambiguous and modern basis for' federal claims of torture and extrajudicial killing ..."). 251. Plaintiff has established that Saravia is liable for the extrajudicial killing of Archbishop Romero. (2) Crimes Against Humanity 252. In Sosa, the United States Supreme Court held that ATCA claims must "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized." 124 S.Ct. at 2761-62. The Sosa court identified three offenses that give rise to liability under the traditional law of nations: violation of safe conduct, infringement of the rights of ambassadors, and piracy. Id. at 2761. These offenses were universally accepted and defined with specificity. The Court relied on the criteria then available to Congress and the courts—the extensive practice between states and the work of scholars, including Blackstone and Vattel, to identify these norms. In addressing the modernization of the ATCA, the court cited with approval, cases which permitted ATCA claims for violations of international norms which were "specific, universal and obligatory." Id. at 2765. The prohibition against crimes against humanity constitutes such a specific, universal and obligatory norm. 253. The international, prohibition of crimes against humanity is explicitly codified in several multilateral agreements and has been extensively litigated in international tribunals, constituting a body of doctrinal exposition. It has been exhaustively addressed in numerous scholarly treatises. The prohibition of crimes against humanity has been defined with an ever greater degree of specificity than the three 18th-century offenses identified by the Supreme Court and that are designed to serve as benchmarks for gauging the acceptability of individual claims under the ATCA. 254. The prohibition against crimes against humanity was first recognized by the Charter of the International Military Tribunal at Nuremberg ("Nuremberg Charter"). See Restatement (Third) of the Foreign Relations Law of the United States § 702, rpt. note 1 (1987). The Nuremberg Charter was adopted to ensure that serious human rights abuses committed during World War II by the military and political leaders of Nazi Germany were punished. See generally M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law (2d ed.1999). *1155 Under the Nuremberg Charter, acts constituting crimes against humanity included murder, extermination, enslavement, deportation, persecution on political, racial or religious grounds, or other inhuman acts committed against a civilian population. Charter of the International Military Tribunal, August 8, 1945, art. 6(c), 82 U.N.T.S. 284. In its final ruling on the criminal liability of Nazi leaders, the International Military Tribunal acknowledged the status of crimes against humanity under international law and convicted several defendants of this crime. See The Nurnberg Trial, 6 F.R.D. 69 (1946). 255. Since the adoption of the Nuremberg Charter, the prohibition against crimes against humanity has been expressly recognized in several international instruments. See, e.g., G.A. Res. 95(1), 1 GAOR U.N. Doc. A/64/Add.1, at 188 (1946) (affirmation of principles set forth in Nuremberg Charter and decision of International Military Tribunal); Convention on the Non-Applicability of Statutory Limits to War Crimes and Crimes Against Humanity, Nov. 26, 1968, 660 U.N.T.S. 195, reprinted in 8 I.L.M. 68 (1969); Principles of International Co-Operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, G.A. Res. 3074(XXVIII), 28 GAOR Supp. (No. 30) at 78, U.N. Doc. A/9030/Add.1 (1973). 256. Recent developments affirm the status of crimes against humanity under international law. In 1993, the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia ("ICTY") to prosecute serious violations of international law committed in that territory, including genocide, war crimes, and crimes against humanity. See State of the International Criminal Tribunal for the former Yugoslavia, U.N. Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1192 (1993). The International Criminal Tribunal for Rwanda ("ICTR") was established by the Security Council in 1994 to prosecute similar violations of international law committed in Rwanda. See Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1602 (1994). Both statutes set forth an expanded list of enumerated offenses which are crimes against humanity, including murder. 257. Both the ICTY and ICTR have affirmed the status of crimes against humanity under international law. In Tadic, for example, the ICTY noted that "the customary status of the prohibition against crimes against humanity and the attribution of individual criminal responsibility for their commission have not been seriously questioned." Prosecutor v. Tadic, Case No. IT-94-1, (May 7, 1997), at ¶ 623. See also Prosecutor v. Akeyesu, Case No. ICTR-96-4-T, (Sep.2, 1998). 258. The Rome Statute of the International Criminal Court ("Rome Statute") provides the most current definition of crimes against humanity under international law. Rome Statute of the International Criminal Court (July 17, 1998), reprinted in 37 I.L.M. 999 (1998). Article 7 of the Rome Statute defines crimes against humanity as one of a number of defined acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. These acts include murder, among an expanded list of crimes. Its recent codification in the Rome Statute makes Article 7 an authoritative interpretation of crimes against humanity in international law. See generally, Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court (ed., 1999). The Rome statute has been ratified or acceded to by 94 countries and signed by an additional 47, including four of the five members of the U.N. Security Council, *1156 signifying widespread acceptance. (The United States is not a signatory, however, this does not affect the analysis). 259. The Rome statute requires four elements for establish a crime against humanity: (1) a violation of one of the enumerated acts; (2) committed as part of a widespread or systematic attack; (3) directed against a civilian population; and (4) committed with knowledge of the attack. Significantly, even a single act by an individual, taken within the context of a widespread or systematic attack against a civilian population, can constitute a crime against humanity. 260. According to Antonio Cassesse, the former President of the International Criminal Tribunal for the former Yugoslavia, "when one or more individuals are... accused ... of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty or wickedness." Antonio Cassesse, "Crimes against Humanity," in I The Rome Statute of the International Criminal Court: A Commentary 353, 361 (eds.2002); see generally, Darryl Robinson, Development in International Criminal Law: Defining "Crimes against Humanity" at the Rome Conference, 93 Am. J. of Int'l Law 43, 48 (2002). This principle was affirmed by the ICTY in Prosecutor v. Msksic, where the court stated: Crimes against humanity ... must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such, an individual committing a crime against a single victim or a limited number of victims might be recognized as guilty of a crime against humanity if his acts were part of the specific context identified above. Prosecutor v. Msksic, Case No. IT-95-13-R61, (Apr. 3, 1996), at ¶ 30. See also Prosecutor v. Tadic, Case No. IT-94-1-T, (May 7, 1997), at ¶ 649 ("Clearly, a single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual criminal responsibility and an individual perpetrator need not commit numerous offenses to be held liable."). 261. Several federal courts in the United States have accepted the well-established nature of crimes against humanity and their actionability under the ATCA. See, e.g., Flores v. Southern Peru Copper Corp., 343 F.3d 140, 151 (2d Cir.2003) ("Customary international law rules proscribing crimes against humanity, including genocide, and war crimes, have been enforceable against individuals since World War II."); Aldana v. Fresh Del Monte Produce, Inc., 305 F.Supp.2d 1285, 1299 (S.D.Fla.2003) ("Crimes against humanity have been recognized as violation of customary international law since the Nuremberg Trials in 1944."); Sarei v. Rio Tinto PLC, 221 F.Supp.2d 1116, 1150 (C.D.Cal. 2002) ("It is well-established that a party who commits a crime against humanity violates international law and may be held liable under the ATCA."); Cabello, 157 F.Supp.2d at 1360-61 ("[T]he ruling of the Nuremberg Tribunal memorialized the recognition of `crimes against humanity' as customary international law."); Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 440 (D.N.J.1999) (recognizing crimes against humanity as a violation of international law); Quinn v. Robinson, 783 F.2d 776, 799 (9th Cir.1986) ("crimes against humanity, such as genocide, violate international law"). See also United States v. Yousef 327 F.3d 56, 105 (2d Cir.2003) ("Following *1157 the Second World War, the United States and other nations recognized `war crimes' and `crimes against humanity,' including `genocide,' as crimes for which international law permits the exercise of universal jurisdiction"); Sosa, 124 S.Ct. at 2783 (Breyer, J., concurring) (recognizing that international law views crimes against humanity as universally condemned behavior that is subject to prosecution). 262. In particular, several U.S. courts have referenced the specific, universal, and obligatory nature of crimes against humanity in their rulings on ATCA liability. In Mehinovic, the district court applied the "specific, universal and obligatory" test and held that crimes against humanity are actionable under the ATCA.198 F.Supp.2d at 1344, 1352-54. The district court in Wiwa, also followed this approach, analyzing several ATCA claims under the "specific, universal and obligatory" standard and holding the prohibition of crimes against humanity to be "a norm that is customary, obligatory, and well-defined in international jurisprudence." 2002 WL 319887 at *5, 9, 27. 263. These cases demonstrate that crimes against humanity constitute a specific, universal, and obligatory norm and that this norm is actionable under the ATCA. The assassination of Archbishop Romero meets the elements for establishing a crime against humanity. The Romero assassination occurred in an environment of state-sanctioned violence that was both widespread throughout El Salvador and constituted systematic, inhumane attacks on the civilian population by the ruling military. The death squad which perpetrated the murder of Archbishop Romero acted as part of a calculated strategy by the military to terrorize the civilian population into submission. The decision to kill Romero was implemented to silence his criticism of the state security forces and state implemented repression. At or about the same time other priests were being murdered by the military and death squads to deter their practice of liberation theology. 264. Saravia knew that he was involved in an operation to commit the murder of one of the most important civilians in El Salvador, its revered Archbishop. Given that this particular act took place within the context of other widespread and systematic attacks against the civilian population by state security forces and state-sponsored death squads, the assassination of Romero meets the four criteria for establishing it as a crime against humanity. 265. This extrajudicial killing meets the Supreme Court's requirements identified in Sosa. (3) No Exhaustion of Remedies Requirement Under ATCA. 266. Plaintiffs asserting claims under the ATCA are not required to exhaust their remedies in the state in which the alleged violations of customary international law occurred. See Abiola v. Abubakar, 267 F.Supp.2d 907, 910 (N.D.Ill. 2003); Sarei, 221 F.Supp.2d at 1132-35 ("The court is not persuaded that Congress' decision to include an exhaustion of remedies provision in the TVPA indicates that a parallel requirement must be read into the ATCA.") (citing Kadic, 70 F.3d at 241). See also Jama v. I.N.S., 22 F.Supp.2d 353, 364 (D.N.J.1998) ("There is nothing in the ATCA which limits its application to situations where there is no relief available under domestic law."). 267. In Kadic, which the Sarei court cited, the Second Circuit held that "[t]he scope of the Alien Tort Act remains undiminished by enactment of the Torture Victim Act." 70 F.3d at 241. The Kadic court did not apply the TVPA exhaustion of remedies requirement to the plaintiffs' ATCA claims for torture and summary execution, even though plaintiffs asserted *1158 the same claims under the TVPA. Id. at 243-44. 268. The Supreme Court in Sosa noted in dicta that exhaustion of remedies available in the foreign domestic legal system may be necessary under the ATCA in "an appropriate case." 124 S.Ct. at 2766, n. 21. However, the court did not elaborate on the issue and did not disavow the Second Circuit's ruling. As plaintiff's claims for extrajudicial killing and crimes against humanity are brought under the ATCA and customary international law, plaintiff need not show that plaintiff has exhausted remedies in El Salvador, which exhaustion has been determined to be futile. F. Plaintiff is Entitled to Damages Under the TVPA and the ATCA. 269. Courts have awarded significant compensatory and punitive damages for extrajudicial killing under the TVPA. See, e.g., Tachiona, 216 F.Supp.2d at 267-68. In that case, the Court awarded $2.5 million for consistency with next pages in compensatory and $5 million in punitive damage for extrajudicial killing. In reaching that decision, the Court cited the following awards of other courts: Mushikiwabo v. Barayagwiza, No. 94 Civ. 3627, 1996 WL 164496, at *3 (S.D.N.Y. Apr.9, 1996) (awarding compensatory damages including $500,000 in pain and suffering and awarding $1 million in punitive damages to each relative of a victim and $5 million to each victim for torture and murder under the TVPA and ATCA); Mehinovic, 198 F.Supp.2d at 1358-60 (awarding $10 million in compensatory and $25 million in punitive damages to each victim for torture, cruel and inhumane treatment, arbitrary detention, violations of the law of war and crimes against humanity under both the TVPA and ATCA as well as assault and battery, false imprisonment, intentional infliction of emotional distress and conspiracy under Georgia law). 270. Courts have also awarded significant compensatory and punitive damages for violations of the ATCA, including extrajudicial killing and crimes against humanity.[4] Previous courts have awarded the following: • Filartiga (awarding $5 million each in punitive damages to the father and sister of Joelito Filartiga, who was tortured to death by Paraguayan officials; court also awarded $350,000 in compensatory damages); • Xuncax (awarding $7 million in compensatory and punitive damages to each of the three plaintiffs asserting a claim for extrajudicial killing); • Mushikiwabo (awarding between $10 million and $35 million in compensatory and punitive damages to each plaintiff suing for the extrajudicial killing of a number of relatives during massacres in Rwanda); • Trajano v. Marcos (In re Estate of Ferdinand E. Marcos Human Rights Litigation), 978 F.2d 493 (9th Cir. 1992) (awarding $4.16 million in compensatory and punitive damages and *1159 attorneys fees for torture and extrajudicial killing); • Tachiona (awarding undifferentiated damages under both the TVPA and the ATCA in the amount of $7.5 million in compensatory and punitive damages for each of three claims of extrajudicial killing); and • Cabello v. Fernandez-Larios, No. 99-0528-CIV-LENARD (S.D.Fla. Oct.31, 2003) (following a jury trial, an award of $4 million was entered in favor of plaintiffs for a single claim of extrajudicial killing and crimes against humanity). 271. These decisions have awarded damages on the basis of the following factors: i. Brutality of the act; ii. Egregiousness of defendant's conduct; iii. Unavailability of criminal remedy; iv. International condemnation of act; v. Deterrence of others from committing similar acts; vi. Provision of redress to plaintiff, country and world. 272. For all the reasons discussed, these factors support the award of substantial damages in this case. In many ways, this case is different from any other because of the national and international stature of the victim, his importance to any effort to avoid war, and the violence that followed his death. Archbishop Romero was widely recognized as the one person who could act as a bridge between the divided sectors of Salvadoran society and was seen by the U.S. government and many others as absolutely crucial to any nonviolent or less-violent resolution of the crisis gripping El Salvador at the time. With his death and the elimination of the bridge between the polarized sectors of Salvadoran society, El Salvador descended into civil war. 273. Plaintiff has suffered a loss only partially compensable in money and is entitled to significant compensatory and punitive damages, in the respective amounts of $5 million and $5 million for a total damage award of $10 million. V. CONCLUSION 274. For all reasons stated, plaintiff is entitled to judgment on the claim of extrajudicial killing under the TVPA and on the claims of extrajudicial killing and crimes against humanity under the ATCA, in the total amount of $10 million against defendant, Saravia, plus his costs of suit. 275. The Redacted Findings of Fact and Conclusions of Law shall be filed. 276. The Unredacted Findings of Fact and Conclusions of Law shall be filed UNDER SEAL. SO ORDERED. NOTES [*] Editor's Note: Redacted Version—Not Filed Under Seal [1] All citations to the transcript of the evidentiary hearing on Plaintiff's Application for a Default Judgment are to the preliminary version; the final transcript was not yet available at the time of filing. [2] A federal court also has jurisdiction over a claim brought by a U.S. citizen under the TVPA pursuant to its general federal question jurisdiction under 28 U.S.C. § 1331. Estate of Cabello v. Fernandez.-Larios, 157 F.Supp.2d 1345, 1355 (S.D.Fla.2001) (citing cases). [3] D'Aubuisson's interference with the extradition process and the irregularity of the Supreme Court's decision to dismiss the charges provides a strong basis for disregarding entirely its decision to reject the testimony of Amado Garay as "not credible." The stated grounds for this decision were that (a) Garay's statement was given more than seven years after the assassination; (b) Garay's testimony allegedly conflicted with that of another witness; and (c) Garay was covering up his own involvement in the killing. Government's Motion to Dismiss Extradition Proceedings filed December 28, 1988 (attaching December 19, 1988 decision of Salvadoran Supreme Court). As a preliminary matter, the Salvadoran Supreme Court's decision has no binding effect in this proceeding as the plaintiff, J. Doe, was not a party to that case. Claim preclusion does not apply. In any event, no deference should be given to the 1988 decision because that Court never had an opportunity to see Garay testify in person and therefore was in no position to assess his credibility. In contrast, Garay testified in this court and was subject to wide-ranging questioning to test his credibility. See Mason v. Vasquez, 5 F.3d 1220, 1224-25 (9th Cir.1993) (emphasizing importance of trial judge's ability to see "variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said"), citing Anderson v. Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Furthermore, due to the differences in procedures between the two legal systems and significant questions about political interference from D'Aubuisson (see, e.g., Ex. 96), neither comity nor issue preclusive effect should be given to that decision. See, e.g., Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 937 (D.C.Cir.1984) ("the obligation of comity expires when the strong public policies of the forum are vitiated by the foreign act"); cf. Kremer v. Chemical Const. Corp., 456 U.S. 461, 102 S.Ct. 1883, 1897, 72 L.Ed.2d 262 (1982) (issue estoppel should not apply if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation). [4] If a choice of law analysis is necessary to determine the applicability of punitive damages, this Court may look to the law of El Salvador, but only to the extent it does not frustrate the very purpose of the ATCA. See Tachiona, 234 F.Supp.2d at 419 (choice of law determination should not compel "dispositive application of foreign law where the municipal rule of decision may conflict with federal law or international standards"); see also Filartiga v. Pena-Irala, 577 F.Supp. 860, 863-64 (E.D.N.Y.1984) ("the court should consider the interests of Paraguay to the extent they do not inhibit the appropriate enforcement of the applicable international law or conflict with the public policy of the United States"). Salvadoran law does support awards of "moral damages," which are tantamount to punitive damages under U.S. law. See Noya Decl. at ¶¶ 19-21. Therefore, even under a choice of law analysis, plaintiff is entitled to punitive damages.

166 Cal.App.2d 620 (1958) THE PEOPLE, Respondent, v. CARLOS ZAPATA ZUBIA et al., Defendants; SEFERINO RALPH GUZMAN, Appellant. Crim. No. 6295. California Court of Appeals. Second Dist., Div. Three. Dec. 30, 1958. John H. Marshall for Appellant. Edmund G. Brown, Attorney General, and William E. James, Deputy Attorney General, for Respondent. WOOD (Parker), J. Defendant Guzman and one Zubia were accused of unlawfully possessing marijuana. In a nonjury trial, they were convicted. Guzman appeals from the judgment and the order denying his motion for a new trial. *621 Appellant contends that the court erred in receiving the marijuana in evidence. His argument is that the marijuana was obtained by unlawful search and seizure. Officer Boyle testified that on December 26, 1957, about 12:45 p.m., while he was driving an automobile south on Arroyo Boulevard, he observed a Chrysler automobile that was also traveling south on that boulevard. He followed the Chrysler about six blocks in an area on the boulevard where there are many sharp curves. When the Chrysler slowed down on some of the curves, he did not see the stop light on the Chrysler "light up." He thought the Chrysler was being driven in violation of section 637, subdivision (a) of the Vehicle Code (without an adequate stop light). When he turned the automobile siren and red light on, the Chrylser stopped, and he (witness) stopped the police automobile beside the Chrysler. Defendant Guzman got out of the Chrysler on the "driver's side" and approached the police automobile. (Guzman will be referred to as the defendant.) When he (officer) asked defendant for his driver's license, defendant produced the license and asked why he had been stopped. The officer replied that he had been stopped for violation of section 637, subdivision (a) of the Vehicle Code. Defendant said that he had been stopped before by the police, and he planned to have the stop light fixed. The officer asked defendant if he had any weapons in the automobile. Defendant said that he did not have any weapons in the automobile and, "If you wish, you may look in the car--I do not have any weapons." As the officer approached the Chrysler from the left side, defendant jumped into that automobile and crawled across the front seat on his knees. The seat was covered with a blanket, and there were two paper sacks on the blanket about the center of the seat. While defendant was crawling across the seat he moved the blanket with his knees and the blanket covered the sacks. The officer unrolled the blanket, removed the sacks, and asked defendant what the sacks were. He replied that "they" were his lunch. The officer opened the sacks. One sack contained a salt shaker and the other sack contained a portion of a sandwich and a rolled-up paper sack. The rolled-up sack contained a small portion of wax paper in which there was a green leafy substance. The officer thought that the substance might be marijuana. He showed the leafy substance to the two defendants and "they" said that "they knew nothing of it." The officer found a package of cigarette papers in the glove compartment of the Chrysler, and found *622 another package of cigarette papers in a pocket of defendant Guzman's pants. On cross-examination, Officer Boyle testified that he did not have a warrant for the arrest of either defendant. The question he asked Guzman regarding weapons was a routine question. There had been many "burglaries of guns and so forth in broad daylight" in the neighborhood where the arrest was made, and Guzman, according to his driver's license," did not live in that neighborhood." The leafy substance which was in the wax paper was marijuana. The package of cigarette papers which was in the Chrysler and the package of cigarette papers which was in the defendant's pocket contained fragments of marijuana within the leaves of the papers. Defendant testified that he did not tell Officer Boyle to "go ahead and look" in the automobile; and he did not tell the officer that he had permission to search the automobile. Defendant Zubia testified that he was riding with Guzman at the time the automobile was stopped by the officers (Officer Scholl accompanied Officer Boyle in the police automobile); the officers did not ask him for permission to search the automobile. When the leafty substance and the cigarette papers were offered in evidence, the defendant objected to the offer on the ground that those things were obtained as the result of an illegal search and seizure. The objection was overruled. At the close of the prosecution's case, the defendant made a motion to exclude the leafy substance and cigarette papers as evidence. The motion was denied. [1] Appellant contends that the marijuana and cigarette papers should not have been received in evidence, for the reason they were obtained by illegal search and seizure. He argues that the fact that defendant committed a minor traffic violation (not having an adequate stop signal light on his automobile) did not justify the officer in searching the automobile or defendant, since the search was unrelated to such an offense and was not incidental to such an arrest. By reason of the defective stop signal light, the officer had reasonable cause to stop the defendant. When the defendant stopped, he got out of his automobile and approached the police automobile before the officer approached the defendant's automobile. When the officer asked the defendant a routine question as to whether he had any weapons in the automobile, the defendant replied in the negative and said further that the officer might *623 look in the car if he wished to do so. The conduct of defendant, immediately thereafter, in jumping into his automobile, crawling across the seat, and covering the sacks with the blanket might reasonably cause the officer to suspect that defendant was attempting to conceal something that was in the automobile. The question as to whether defendant consented that the officer might search the automobile was a question of fact for the determination of the trial court. Under the evidence here the court could reasonably find that defendant gave such consent. Since the search of the automobile revealed a leafy substance which the officer thought was marijuana, the officer had reasonable cause to search the defendant, who was the owner and driver of the automobile. The court did not err in receiving the marijuana in evidence. The judgment and the order denying the motion for a new trial are affirmed. Shinn, P. J., and Vallee, J., concurred.

86 F.3d 1164 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Mario OLACHEA-JIMENES, Defendant-Appellant. No. 95-55132. United States Court of Appeals, Ninth Circuit. Submitted May 20, 1996.*Decided May 29, 1996. Before: BROWNING, REINHARDT, and FERNANDEZ, Circuit Judges. 1 MEMORANDUM** 2 Federal prisoner Mario Olachea-Jimenes appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate and set aside his guilty plea conviction and sentence for conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. §§ 846, 841(a)(1). Olachea-Jimenes contends the district court erred by finding without an evidentiary hearing that he received effective assistance of counsel and that his guilty plea was knowing and voluntary. We have jurisdiction under 28 U.S.C. §§ 1291, 2255, and we affirm. 3 We review de novo the denial of a section 2255 motion, and for an abuse of discretion the denial of an evidentiary hearing. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir.1994). "We review for clear error any factual findings the district court made in deciding a section 2255 motion." United States v. Mett, 65 F.3d 1531, 1534 (9th Cir.1995) (quotation omitted). A. Ineffective Assistance of Counsel 4 In order to prevail on an ineffective assistance of counsel claim, a defendant must show deficient performance by counsel and prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Swanson, 943 F.2d 1070, 1073 (9th Cir.1991). In the context of guilty pleas, "to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also United States v. Keller, 902 F.2d 1391, 1394 (9th Cir.1990). 5 Olachea-Jimenes contends that counsel was ineffective because he advised Olachea-Jimenes to plead guilty before the government complied with his motion to disclose the identities of the confidential informants. Olachea-Jimenes argues that this was prejudicial because the information obtained would have led to an "outrageous government conduct claim." See United States v. Montoya, 45 F.3d 1286, 1299-1300 (9th Cir.), cert. denied, 116 S.Ct. 69 (1995). Olachea-Jimenes relies on our previous decision in United States v. Solorio, 37 F.3d 454 (9th Cir.1994), withdrawn, 43 F.3d 1334 (1995), and superseded, 53 F.3d 341 (1995), where we state that a fee arrangement for an informant which hinges payment upon conviction violates due process by creating improper incentives to the informant to be dishonest in testimony. 6 Solorio was withdrawn and replaced with an unpublished memorandum disposition. Even were the Solorio opinion good law, its reasoning would be inapplicable to Olachea-Jimenes. Contrary to Olachea-Jimenes's characterization, compensation based on the amount of contraband involved does not amount to an improper "contingency fee arrangement." 7 Moreover, to prevail on an outrageous government conduct claim, Olachea-Jimenes would have to show that the government conduct was "so grossly shocking and so outrageous as to violate the universal sense of justice." United States v. McClellan, 72 F.3d 717, 721 (9th Cir.1995) (quotation omitted), cert. denied, 116 S.Ct. 1446 (1996); Greene v. United States, 454 F.2d 783 (9th Cir.1971). Olachea-Jimenes's allegations regarding the involvement of the government informants does not reach this level. See McClellan, 72 F.3d at 721. In addition, the district court's finding that Olachea-Jimenes's counsel investigated the facts and circumstances of his case is not clearly erroneous. See Mett, 65 F.3d at 1534. Thus, Olachea-Jimenes has failed to show that counsel's performance was deficient. See Swanson, 943 F.2d at 1073. Accordingly, the district court did not err by denying this claim without conducting an evidentiary hearing because the record conclusively shows that Olachea-Jimenes is entitled to no relief. See Doganiere v. United States, 914 F.2d 165, 168 (9th Cir.1990), cert. denied, 499 U.S. 940 (1991); Shah v. United States, 878 F.2d 1156, 1158 (9th Cir.), cert. denied, 493 U.S. 869 (1989). B. Guilty Plea 8 Olachea-Jimenes contends that his guilty plea was involuntary because he did not possess sufficient knowledge of the circumstances surrounding the arrest and deportation of Antonio Motolese, one of the government's confidential informants. Olachea-Jimenes contends that his lack of knowledge was due to the government's failure to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963). This contention lacks merit. 9 A guilty plea must be knowing and voluntary, rather than the result of threats, misrepresentations, or improper promises. Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir.1995). The government is required to turn over material information which exculpates the defendant. Id. In the context of a guilty plea, evidence is material if "there is a reasonable probability that but for the failure to disclose the Brady material, the defendant would have refused to plead and would have gone to trial." Id. "[T]he test for whether the defendant would have chosen to go to trial is an objective one that centers on the likely persuasiveness of the withheld information." Id. (quotation omitted). 10 Olachea-Jimenes contends that if he had known that Motolese was an informant and had known the circumstances surrounding his arrest and deportation, he would have gone to trial and asserted defenses of outrageous government conduct and entrapment. As previously discussed, the outrageous government conduct claim is not viable. See McClellan, 72 F.2d at 721. In addition, an entrapment defense almost certainly would fail. See Sanchez, 50 F.3d at 1454. Olachea-Jimenes would have to show both government inducement to commit the crime and lack of predisposition to commit the crime. See id. Olachea-Jimenes's history as a drug trafficker and the absence of any evidence that he was reluctant to engage in the transaction makes an entrapment defense objectively implausible because Olachea-Jimenes could not show lack of predisposition. See id. Thus, under the objective standard, Motolese's status as an informant was not material to the decision whether to plead guilty.1 See id. 11 Olachea-Jimenes also contends that the district court improperly relied on counsel's affidavit in rejecting his claim that his guilty plea was involuntary. This contention lacks merit because it was the Petitioner himself that submitted the affidavit.2 AFFIRMED.3 * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 We decline to consider Olachea-Jimenes's claim, raised for the first time on appeal, that counsel was ineffective by failing to uncover the "Motolese problem" because it would have resulted in "a more substantial plea bargain." See United States v. Reyes-Alvarado, 963 F.2d 1184, 1189 (9th Cir.), cert. denied, 506 U.S. 809 (1992) 2 We decline to consider Olachea-Jimenes's claim, raised for the first time in his reply brief, that the district court failed to comply with Fed.R.Crim.P. 11(e)(2). See Eckert v. Tansy, 936 F.2d 444, 450 n. 5 (9th Cir.1991) (declining to consider issues not raised in habeas petition to the district court) 3 Because we affirm the denial of Olachea-Jimenes's motion under the former version of 28 U.S.C. § 2255, we do not consider whether the Antiterrorism and Effective Death Penalty Act of 1996 applies to this appeal

282 So.2d 907 (1973) Homer Lee SMITH v. The STATE of Alabama. SC 359. Supreme Court of Alabama. August 30, 1973. Rehearing Denied September 27, 1973. Arnold W. Umbach, Jr., Opelika, for appellant. William J. Baxley, Atty. Gen., Montgomery, and Samuel L. Adams, Sp. Asst. Atty. Gen., Dothan, for the State. FAULKNER, Justice. Homer Lee Smith was indicted by the Grand Jury of Lee County, Alabama, for the offense of burglary in the second degree. He was tried by a jury on a plea of not guilty. He was found guilty as charged in the indictment and was sentenced to ten years in the State penitentiary. He appealed his conviction and sentence to the Court of Criminal Appeals. On April 24, 1973 the appeal was transferred to this Court. The victim of the alleged burglary was Moses Glenn who was working out a fine for D.W.I. at the Auburn police headquarters. Glenn testified that when he went to work on the morning of July 21, 1971, he *908 left all the doors of his house locked. When he reutrned home in the afternoon of the same day, he found a door open and the screen off one widow. He went into a bedroom and noticed that the drawers of a chifforobe and chest of drawers were open. He called the police. He then noticed that a yellow sports shirt was missing. His wrist watch, cuff links, and a few other things left lying on a chair were also missing. Glenn, who was convicted of forgery in 1961, further testified that he had not given any person permission to enter his house. The State's case was made on an alleged voluntary confession given by the accused, Smith, to Lt. Frank deGraffenried and Sgt. Murphy of the Auburn Police Department. Smith could not read or write, but could write his name. He allegedly confessed that he went into the house and took the yellow sports shirt. The alleged confession was taken in writing by the police, who read it back to the accused. He signed it. The circumstances surrounding this alleged voluntary confession is the basis of this appeal. After the jury had left the courtroom, and out of the presence of the jury, Lt. deGraffenried testified that he had advised Smith of all his constitutional rights and Smith made the statement voluntarily. The statement was then read. Defense counsel entered an objection to the admission of the statement. The jury was brought into the courtroom and questions concerning the voluntariness of the statement were propounded to the officer. Defense was permitted to question on voir dire: "Q. So from the afternoon before until the next afternoon he was not taken before a Magistrate, no bond was set? "A. I don't know about the bond, sir. I'm sure he wasn't taken before a Magistrate. It's not common procedure for us. "A. Was he taken before any other Judicial official the next day when you questioned him? "A. No, sir. "Q. Was this on—Was this during the week? "A. I'm not sure, I believe he was arrested on Sunday afternoon and the 2nd was a Monday, but I'm not positive. "Q. I'm talking about the day you questioned him, that was a weekday? "A. It was during the week. "Q. A week day? "A. Yes, sir. "Q. So Courts were available and open on this day? "MR. WRIGHT: Your Honor, he has testified that he didn't know exactly what day it was when he was arrested, whether it was Sunday or Monday or what. "MR. UMBACH: I'm asking about when he questioned him, he was there when he questioned him. I'm asking him about what day of the week, whether it was a workday and the Courts were open. And he said he was there, I'm not asking when he was arrested. "MR. WRIGHT: Your Honor, they have gone through all this and of course, it is my position that it is all immaterial as to whether or not he was brought before a Magistrate or not. "THE COURT: Sustained. The man was indicted. And the Court cites the cases of Braden v. State [,45 Ala.App. 186], 227 So.(2) 816, Hn. 1; Ex Parte Flanigan [278 Ala. 432], 178 So. (2) 825, Hn. 1; Trammell *909 v. State [, 43 Ala.App. 308], 189 So (2) 760, Hn. 4; cert. stricken, 189 So. (2) 763. "MR. UMBACH: Your Honor,— "THE COURT: Also Alabama Digest on Criminal Law, Key 223; and also those cases around Alabama Digest on Criminal Law, Keys 219, 220, 221, 222 and 223. "Q. Why was he not taken before a Magistrate the next day? "MR. WRIGHT: Objection. "THE COURT: Sustained on the authorities the Court has just cited. * * *" It is Smith's contention that the court erred in not allowing a complete inquiry into the conditions surrounding the taking of his statement before the jury. The authorities cited by the trial court hold that after a person has been indicted, failure to bring him before a committing magistrate becomes a moot question. Trammell, supra. However, in this case, the issue of whether a preliminary examination was held, concerns an arrest and subsequent questioning on August 1st and 2nd. The defendant was not indicted until September. A confession is not inadmissible solely because it was made after arrest by an officer and before the accused was taken before a committing magistrate. Myhand v. State, 259 Ala. 415, 66 So.2d 544 (1953); Ingram v. State, 252 Ala. 497, 42 So.2d 36 (1949). However, our courts have held that the jury is to consider all of the facts and circumstances surrounding the taking of a confession in determining the weight and credibility that it will give to the confession. Bennett v. State, 46 Ala.App. 535, 245 So.2d 570 (1971); Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Johnson v. State, 242 Ala. 278, 5 So.2d 632 (1941). Whether the defendant was taken before a magistrate in compliance with title 15, § 160, Code of Alabama 1940, Recompiled 1958, is a relevant factor for the jury to consider in determining the voluntariness of a confession. Davis v. State, 42 Ala.App. 374, 165 So.2d 918 (1964); see cases cited therein. In limiting the cross-examination of Detective deGraffenried the trial court denied defense counsel the right to go into all of the circumstances surrounding the taking of the defendant's confession for the consideration of the jury. Reversed and remanded. HEFLIN, C. J., and COLEMAN, BLOODWORTH and JONES, JJ., concur. MERRILL, HARWOOD, McCALL and MADDOX, JJ., dissent.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4738 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STEPHEN DUANE DULA, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00022-RLV-CH-1) Submitted: May 18, 2009 Decided: June 5, 2009 Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Roderick M. Wright, Jr., THE WRIGHT LAW FIRM OF CHARLOTTE, P.L.L.C., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Stephen Duane Dula pled guilty pursuant to a written plea agreement to one count of conspiracy to possess with intent to distribute fifty grams or more of cocaine base and five grams or more of powder cocaine, in violation of 21 U.S.C. §§ 841, 846 (2006). The district court imposed the statutory mandatory minimum sentence of 120 months in prison. Dula timely appealed. Counsel for Dula filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious grounds for appeal, but questioning whether the district court fashioned a reasonable sentence. Finding no reversible error, we affirm. A review of the record reveals no error in sentencing. When determining a sentence, the district court must calculate the appropriate advisory guidelines range and consider it in conjunction with the factors set forth in 18 U.S.C. § 3553(a) (2006). Gall v. United States, 128 S. Ct. 586, 596 (2007). Appellate review of a district court’s imposition of a sentence, “whether inside, just outside, or significantly outside the [g]uidelines range,” is for abuse of discretion. Id. at 591. Sentences within the applicable guidelines range may be presumed by the appellate court to be reasonable. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). 2  The district court followed the necessary procedural steps in sentencing Dula, appropriately treating the sentencing guidelines as advisory, properly calculating and considering the applicable guidelines range, and weighing the relevant § 3553(a) factors. Dula’s guidelines range was 108 to 135 months but because of the statutory mandatory minimum sentence, his range became 120 to 135 months. Dula’s 120-month sentence, which is the low end of the applicable guidelines range, below the statutory maximum of life, and the minimum sentence the district court was required to impose, may be presumed reasonable by this court. Pauley, 511 F.3d at 473. We conclude that the district court did not abuse its discretion in imposing the chosen sentence. We have reviewed Dula’s pro se supplemental brief and find no merit to his claims. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court’s judgment. This court requires that counsel inform Dula, in writing, of the right to petition the Supreme Court of the United States for further review. If Dula requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Dula. 3  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4 

FILED DEC 10 2018 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT In re: BAP No. NC-18-1078-FBKu RAQUEL MEDINA, Bk. No. 16-41967 Debtor. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Certificate Trustee on behalf of Bosco Credit II Trust Series 2010-1, Appellant, v. MEMORANDUM* RAQUEL MEDINA, Appellee. Argued and Submitted on November 29, 2018 at San Francisco, California Filed – December 10, 2018 * This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1.  Appeal from the United States Bankruptcy Court for the Northern District of California Honorable Roger L. Efremsky, Chief Bankruptcy Judge, Presiding Appearances: Kristin A. Zilberstein of The Law Offices of Michelle Ghidotti argued on behalf of appellant Deutsche Bank National Trust Company, as Certificate Trustee on behalf of Bosco Credit II Trust Series 2010-1; Raymond R. Miller argued on behalf of appellee Raquel Medina. Before: FARIS, BRAND, and KURTZ, Bankruptcy Judges. INTRODUCTION Appellant Deutsche Bank National Trust Company, as Certificate Trustee on behalf of Bosco Credit II Trust Series 2010-1 (“Deutsche Bank”), held a junior lien on chapter 131 debtor Raquel Medina’s real property. Ms. Medina moved the court to avoid Deutsche Bank’s junior lien and to confirm her plan. Deutsche Bank knew of the motions and had information inconsistent with the factual predicate for the motion to avoid lien, but decided not to object. Nearly a year later, Deutsche Bank moved for reconsideration. The bankruptcy court denied the motion for 1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, all “Rule” references are to the Federal Rules of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of Civil Procedure. 2 reconsideration because Deutsche Bank had waited too long to seek relief. On appeal, Deutsche Bank argues that its failure to protest the lien avoidance was excused, because it was seeking information from the senior lienholder and negotiating with Ms. Medina behind the scenes. It contends that the bankruptcy court ignored its newly discovered evidence and improperly recalculated the amount owed under the senior lien. The bankruptcy court did not abuse its discretion in denying the motion for reconsideration. We AFFIRM. Ms. Medina requests that we sanction Deutsche Bank for bringing a frivolous appeal. We DENY her request. FACTUAL BACKGROUND2 A. Prepetition events On or around October 21, 2005, Ms. Medina and her husband executed a promissory note in the principal sum of $414,000. The promissory note was secured by a deed of trust (“First Deed of Trust”) encumbering real property in Pittsburg, California (the “Property”). JPMorgan Chase Bank, National Association (“Chase”) eventually acquired the First Deed of Trust. On the same day, Ms. Medina and her husband executed a second 2 We exercise our discretion to review the bankruptcy court’s docket, as appropriate. See Woods & Erickson, LLP v. Leonard (In re AVI, Inc.), 389 B.R. 721, 725 n.2 (9th Cir. BAP 2008). 3 promissory note for $103,500. The promissory note was secured by another deed of trust (“Second Deed of Trust”) encumbering the Property. In October 2005, Deutsche Bank acquired the Second Deed of Trust. B. Ms. Medina’s chapter 13 case On July 13, 2016, Ms. Medina filed a chapter 13 petition. She listed the Property in her schedules as having a value of $351,000. She identified Chase as a creditor with a $518,000 claim partially secured by the Property; as such, $167,000 of Chase’s lien was unsecured. She listed Deutsche Bank as having a $102,512.28 unsecured claim.3 Ms. Medina also filed her proposed chapter 13 plan on July 13. Chase initially objected to plan confirmation because the original plan did not provide for treatment of its claim for prepetition arrears. It stated that it was “finalizing its proof of claim for this matter and estimates that its total secured claim is in the approximate amount of $286,161.58 . . . .” It later withdrew its objection after Ms. Medina amended her plan to include Chase’s prepetition arrearage. The operative plan, the seventh amended plan, provided that Ms. Medina would pay $419 monthly for sixty months. Chase held a Class 1 claim for prepetition arrears totaling $12,856.89. The plan reduced the 3 Ms. Medina’s amended Schedule D listed Chase’s claim as $414,000, of which $63,000 was unsecured. She increased Deutsche Bank’s claim to $200,567.53, the entirety of which was unsecured. 4 value of Deutsche Bank’s collateral to zero and treated its claim as wholly unsecured. Deutsche Bank filed a proof of claim for $198,351.46 based on the Second Deed of Trust. C. The motions to avoid Deutsche Bank’s lien On July 28, 2016, Ms. Medina filed a motion to value Deutsche Bank’s lien at zero and avoid the lien pursuant to §§ 506, 1322, and 1327 (“First Motion to Avoid Lien”). Deutsche Bank knew about the First Motion to Avoid Lien. It also had information suggesting that the amount due under the First Deed of Trust was less than Ms. Medina stated: it had pulled Ms. Medina’s credit report in July 2016, which indicated that Chase was owed $277,120. In August 2016, it corresponded with Ms. Medina’s counsel to discuss the discrepancy but did not take further action. It later tried to contact Chase to request a payoff quote, but did not receive a timely response. It did not file a response to the First Motion to Avoid Lien. Ms. Medina sought entry of an order granting the motion by default. The bankruptcy court denied the First Motion to Avoid Lien on September 7, 2016 because Ms. Medina did not present any evidence to support the amount of the First Deed of Trust as of the petition date. On October 8, 2016, Ms. Medina filed another motion to avoid Deutsche Bank’s lien (“Second Motion to Avoid Lien”). She represented that the Property was worth $351,000 (according to www.zillow.com) and 5 that the amount due under Chase’s First Deed of Trust was $518,000. Accordingly, she proposed to strip Deutsche Bank’s second priority lien from the Property. In support of her assertion that she owed Chase $518,000, she attached a partially executed copy of a loan modification agreement effective March 1, 2011 that provided: B. The modified principal balance of my Note will include all amounts and arrearages that will be past due (excluding unpaid late charges) and may include amounts toward taxes, insurance, or other assessments. The new principal balance of my Note is $518,727.23 (the “New Principal Balance”). C. $217,000.00 of the New Principal Balance shall be deferred (the “Deferred Principal Balance”), and I will not pay interest or make monthly payments on this amount. The New Principal Balance less the Deferred Principal Balance shall be referred to as the “Interest Bearing Principal Balance,” and this amount is $301,727.23. The Interest Bearing Principal Balance will re-amortize over 480 months. The loan modification agreement specified that Ms. Medina would “pay in full . . . the Deferred Principal Balance . . . by the earliest of the date [she] sell[s] or transfer[s] an interest in the Property, . . . the date [she] pay[s] the entire Interest Bearing Principal Balance, or the Maturity Date.” Deutsche Bank was served with and knew about the Second Motion 6 to Avoid Lien but again did not respond. On November 14, the bankruptcy court entered an order (“Lien Avoidance Order”) avoiding Deutsche Bank’s junior lien and providing that “the Lien is valued at zero, Lien holder does not have a secured claim, and the Lien may not be enforced, pursuant to 11 U.S.C. §§ 506, 1322(b)(2) and 1327.” Deutsche Bank also did not oppose confirmation of Ms. Medina’s seventh amended plan. After a hearing, the bankruptcy court entered an order (“Plan Confirmation Order”) confirming the plan on November 21. In December 2016, Deutsche Bank received a payoff quote from Chase showing that the amount due under the First Deed of Trust was $286,554.01 with $0.00 in deferred principal.4 Chase confirmed by e-mail in April 2017 that the amount due was $285,766.35 with no deferred principal due. Deutsche Bank’s counsel communicated with Ms. Medina’s counsel in an attempt to settle Deutsche Bank’s claim, but Ms. Medina maintained that the total amount due to Chase was $518,000. The last e-mail Deutsche Bank’s counsel sent to Ms. Medina’s counsel was dated April 6, 2017. D. Deutsche Bank’s motion for reconsideration On October 10, 2017, nearly a year after the Lien Avoidance Order and Plan Confirmation Order were entered and over six months since its 4 The record is somewhat unclear, but Deutsche Bank indicated that it received another payoff quote dated February 6, 2017. Only the December 2016 payoff quote is included in the excerpts of record. 7 last attempt to communicate with Ms. Medina, Deutsche Bank filed a motion (“Motion for Reconsideration”) to reconsider the two orders. It sought relief under Civil Rule 60(b)(1), (2), and (6) based on “a mistake of fact concerning the amounts owed on the first position lien secured by the Property[,]” “newly discovered evidence after the avoidance of [Deutsche Bank’s] lien that prevents the valuation of its lien and avoidance of its claim[,]” and “the principals [sic] of equity[.]” Deutsche Bank argued that it “was forced to accept” Ms. Medina’s representation of Chase’s lien amount because it could not verify otherwise soon enough to file a timely response to the Second Motion to Avoid Lien; Chase did not file a proof of claim and did not timely respond to Deutsche Bank’s request for a payoff quote. Rather, it obtained Ms. Medina’s credit report in July 2016, which reported that the amount due under the First Deed of Trust was only $277,120. As a part of its exhibits, Deutsche Bank attached various correspondence between its counsel and Ms. Medina’s counsel showing that it had raised the issue of the discrepancy concerning the First Deed of Trust in August 2016, while the First Motion to Avoid Lien was pending. Once it received the payoff quote (after the Lien Avoidance Order and Confirmation Order), Deutsche Bank claimed that it then tried to negotiate with Ms. Medina to undo the Lien Avoidance Order, but to no avail. When Ms. Medina ceased communications in April 2017, Deutsche 8 Bank claimed that it “was forced to file the instant motion to seek reconsideration” in October 2017. Deutsche Bank argued that, under Civil Rule 60(b)(1), a mistake of fact warranted reconsideration of the Lien Avoidance Order and Plan Confirmation Order. It said that the court mistakenly relied upon the “completely erroneous fact” and “improper assertion” that the First Deed of Trust was $518,000, when it was actually only $285,766; as such, Deutsche Bank’s lien was partially secured. Deutsche Bank contended that the payoff quote and confirmation e- mail that it received from Chase were “newly discovered evidence” under Civil Rule 60(b)(2). It alleged that it received the new information three months after the court confirmed Ms. Medina’s plan and could not with reasonable diligence have obtained the information sooner. Finally, Deutsche Bank argued that the court should grant reconsideration under Civil Rule 60(b)(6) to prevent manifest injustice. It took the position that it had acted diligently and that Ms. Medina should not be able to shirk repayment of the Note “due to these unfortunate events and her general unwillingness to correct the situation . . . .” In response, Ms. Medina argued that it was unreasonable for Deutsche Bank to stay silent for eleven months and then seek to upend her confirmed plan, which had been proceeding well thus far. She reminded the court that Deutsche Bank did not object to either the First Motion to 9 Avoid Lien or the Second Motion to Avoid Lien. She stated that her counsel had communicated with Deutsche Bank in August 2016 to explain the amount due under the First Deed of Trust. At the hearing on the Motion for Reconsideration, the bankruptcy court noted that the evidence from Chase regarding the amount due under the First Deed of Trust was conflicting and stated, “I just don’t have good evidence here.” It said that it wanted a definitive answer from Chase that clarifies the discrepancy in the amount due: “I want something definitive from Chase, not just some sort of a payment demand, but something where somebody says they’ve reviewed the file, they’ve looked . . . at the loan modification, and then as of the date, here is what’s owed on the loan.” The bankruptcy court held that there was insufficient evidence to establish the amounts owed under the First Deed of Trust. It continued the hearing for three months to February 7, 2018 and required that Deutsche Bank obtain discovery from Chase specifying the exact amount due as of the petition date. On February 6, Deutsche Bank filed a supplemental brief informing the bankruptcy court that it had unsuccessfully tried to contact Chase. It had not conducted any formal discovery. At the second hearing, Deutsche Bank requested another continuance, and the court continued the hearing to February 21. On February 8, Chase filed a proof of claim for $286,161.58. The 10 attachment listed a $0.00 “deferred balance” and included a fully executed copy of the March 2011 loan modification agreement. At the third hearing on February 21, Deutsche Bank did not have any further information from Chase, and the bankruptcy court declined to continue the hearing again. The court noted that it had granted Deutsche Bank multiple continuances to conduct discovery, but it had failed to do so. The bankruptcy court rejected Deutsche Bank’s contention that reconsideration was warranted for mistake, inadvertence, surprise, or excusable neglect because it “was aware of the discrepancy in the amount owed Chase prior to the second motion to value being filed[,]” yet failed to object or conduct any discovery. The bankruptcy court also held that there was “no newly discovered evidence that with reasonable diligence could not have been discovered in time to move for a new trial under Rule 59(b). Again, movant was aware of the discrepancy in the amount owed Chase . . . . [M]ovant simply chose not to object or do any type of formal discovery towards Chase.” It further found that there was no evidence of fraud. Regarding timing of the Motion for Reconsideration, the court ruled that Deutsche Bank did not act within a reasonable time following the Lien Avoidance Order and instead “chose to sit on its hands.” Finally, it found “no other reason that justifies relief in that the claim filed by Chase on February 8th, 2018 . . . supports the full amount owed as 11 being $518,727.23, based on the [loan modification agreement] which is attached to Part 3 of the Proof of Claim.” The bankruptcy court entered an order denying the Motion for Reconsideration (“Reconsideration Order”). Deutsche Bank timely appealed. JURISDICTION The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(B), (K), (L). We have jurisdiction under 28 U.S.C. § 158. ISSUES (1) Whether the bankruptcy court abused its discretion in denying the Motion for Reconsideration. (2) Whether Ms. Medina is entitled to an award of her fees and costs on appeal. STANDARD OF REVIEW We review for abuse of discretion the bankruptcy court’s denial of a motion for reconsideration. See First Ave. W. Bldg., LLC v. James (In re Onecast Media, Inc.), 439 F.3d 558, 561 (9th Cir. 2006). We apply a two-part test to determine whether the bankruptcy court abused its discretion. United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc). First, we consider de novo whether the bankruptcy court applied the correct legal standard to the relief requested. Id. Then, we review the bankruptcy court’s factual findings for clear error. Id. at 1262. 12 We must affirm the bankruptcy court’s factual findings unless we conclude that they are illogical, implausible, or without support in inferences that may be drawn from the facts in the record. Id. DISCUSSION A. The bankruptcy court did not abuse its discretion in denying the Motion for Reconsideration. Despite sitting on its hands for nearly a year, Deutsche Bank sought reconsideration of the Lien Avoidance Order and Confirmation Order under Civil Rule 60(b).5 On appeal, it argues that the bankruptcy court erred in holding that the Motion for Reconsideration was untimely and did not satisfy Civil Rule 60(b)(2). We discern no error. 1. Deutsche Bank failed to bring the Motion for Reconsideration within a reasonable time. Deutsche Bank argues that the Motion for Reconsideration was timely because it did not earlier have the necessary evidence to support 5 The federal rules do not recognize motions for reconsideration. See Captain Blythers, Inc. v. Thompson (In re Captain Blythers, Inc.), 311 B.R. 530, 539 (9th Cir. BAP 2004). Rather, there are two avenues through which a party may obtain post-judgment relief: (1) a motion to alter or amend judgment under Civil Rule 59, made applicable in bankruptcy by Rule 9023; and (2) a motion for relief from judgment under Civil Rule 60, made applicable in bankruptcy by Rule 9024. If a party seeks reconsideration within fourteen days following the date of entry of the judgment or order, the motion is treated as a motion to alter or amend the judgment under Civil Rule 59(e). See Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). Otherwise, a motion for reconsideration is construed as a motion for relief from judgment under Civil Rule 60(b). See Negrete v. Bleau (In re Negrete), 183 B.R. 195, 197 (9th Cir. BAP 1995). 13 reconsideration. We reject this argument. A party must seek relief under Civil Rule 60(b) within a “reasonable time” after the order or judgment has been entered: “A motion under Rule 60(b) must be made within a reasonable time – and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.” Civil Rule 60(c)(1). “What constitutes ‘reasonable time’ depends upon the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to other parties.” Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (citing Lairsey v. Advance Abrasives Co., 542 F.2d 928, 930-31 (5th Cir. 1976); Sec. Mut. Cas. Co. v. Century Cas. Co., 621 F.2d 1062, 1067-68 (10th Cir. 1980)); see In re Johnson, 564 B.R. 653, 658-59 (E.D. Cal. 2017) (holding that even a motion for reconsideration filed eight days after an order may be untimely, based on the facts of the case). “[R]elief under Rule 60(b) should only be granted where the moving party is able to demonstrate ‘that circumstances beyond its control prevented timely action to protect its interests.’” Zurich Am. Ins. Co. v. Int’l Fibercom, Inc. (In re Int’l Fibercom, Inc.), 503 F.3d 933, 945 (9th Cir. 2007) (quoting United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993)); see Foley v. Biter, 793 F.3d 998, 1004 (9th Cir. 2015) (“relief may only be granted where the petitioner has diligently pursued review of his claims”). “Although the 14 timeliness of a Rule 60(b)(6) motion ‘depends on the facts of each case,’ relief may not be had where ‘the party seeking reconsideration has ignored normal legal recourses.’” See Alpine Land & Reservoir Co., 984 F.2d at 1049 (quoting United States v. Wyle (In re Pac. Far E. Lines, Inc.), 889 F.2d 242, 249, 250 (9th Cir. 1989)). a. Deutsche Bank has failed to show good reason for delay or its inability to learn of the pertinent grounds for reconsideration earlier. The bankruptcy court faulted Deutsche Bank for sitting on its hands and failing to take any action within a reasonable time. Deutsche Bank’s dilatoriness is evident in three time periods: (1) before the court granted the Second Motion to Avoid Lien, (2) after the court issued the Lien Avoidance Order, and (3) during the continuances of the hearing on the Motion for Reconsideration. Taken as a whole, these multiple instances of Deutsche Bank’s failure to act support the bankruptcy court’s ruling that the Motion for Reconsideration was untimely and that there was no new evidence that could not reasonably have been discovered earlier. First, there is no dispute that Deutsche Bank knew about the discrepancy concerning the amount due under the First Deed of Trust in the summer of 2016, before the bankruptcy court decided the Second Motion to Avoid Lien. Deutsche Bank admitted that it had a copy of Ms. Medina’s credit report in July 2016 that caused it to question the 15 amount due under the First Deed of Trust and began e-mailing Chase and Ms. Medina’s counsel to clarify the issue. Yet it chose to remain silent before the court and not oppose either the Second Motion to Avoid Lien or the plan confirmation that stripped its junior lien. Second, Deutsche Bank argues that it could not have brought the motion for reconsideration sooner, because it only received Chase’s payoff quote and e-mail confirmation after the court had issued the Lien Avoidance Order and Plan Confirmation Order. But these facts actually confirm Deutsche Bank’s dilatoriness. Deutsche Bank apparently received a payoff quote from Chase in December 2016 and e-mail confirmation in April 2017. But rather than move for reconsideration at that time, it did nothing until October 2017. It states on appeal that it moved for reconsideration only when it was “confident that a resolution could not be reached.” It fails to explain why it seemingly dropped the issue for half a year and did not bring the evidence to the court’s attention immediately. Third, the bankruptcy court granted Deutsche Bank multiple continuances to allow it to procure evidence in support of the Motion for Reconsideration. It specified at the first hearing that it wanted Deutsche Bank to obtain an affidavit or other discovery from Chase explaining the discrepancy in the amount due under Chase’s First Deed of Trust, not just a conclusory statement of the amount owed. Deutsche Bank failed to do so during the first three-month continuance, and the court reluctantly granted 16 a second continuance. When Deutsche Bank still had not procured the required evidence by the third hearing, the bankruptcy court declined to continue the hearing again and denied the Motion for Reconsideration. It noted that Deutsche Bank had not conducted any formal discovery and held that it had failed to carry its burden, despite the multiple continuances. We discern no abuse of discretion. Deutsche Bank also contends that it should not be punished for attempting to resolve the issue with Chase and Ms. Medina through “cordial communication” rather than in court. But the bankruptcy court unequivocally told Deutsche Bank that it wanted a “definitive” statement from Chase, possibly through formal discovery. It was not unreasonably difficult for Deutsche Bank to propound discovery requests or depose a Chase representative to obtain the necessary information. The desire to behave cordially does not excuse a party’s failure to take formal steps to compel the production of necessary information in a pending legal case. In sum, the record amply reflects Deutsche Bank’s pattern throughout this litigation of failing to take action within a reasonable time. The bankruptcy court did not err in determining that Deutsche Bank provided no credible reason for delay and that it could have discovered the pertinent information earlier. 17  b. Deutsche Bank agrees that Ms. Medina will be prejudiced by a reversal of the Lien Avoidance Order. Deutsche Bank concedes that Ms. Medina would suffer “significant prejudice” if we reverse the bankruptcy court and would have to “restructure” her plan to provide for payments on the Second Deed of Trust. Nevertheless, it argues that “the prejudice to Appellant is even greater to allow the lien avoidance to stand.” There is no dispute that Ms. Medina would be significantly prejudiced if we reverse the bankruptcy court. She is over two years into her five-year confirmed plan, which otherwise appears to be proceeding smoothly. We decline to force her to modify the plan to accommodate Deutsche Bank’s dilatoriness.6 Deutsche Bank repeatedly asserts, without offering any citation to the record, that Ms. Medina had the resources to fund a plan that deals with a secured claim in favor of Deutsche Bank. This cannot possibly be true. According to her schedules (which Deutsche Bank does not dispute), Ms. Medina’s income consists of social security benefits in the amount of only $1,020 per month. This is only slightly above the federal poverty 6 Although Deutsche Bank does not substantively discuss the interest of finality, we similarly hold that the interest of finality weighs in favor of affirming the Reconsideration Order, given that Ms. Medina has completed over forty percent of her plan. See Ashford, 657 F.2d at 1055 (“Because the time for appeal had passed in this case, the interest in finality must be given great weight.”). 18 guideline of $1,011.67.7 Even including “family support” of $1,500 per month, her total income is only $2,520. Her monthly expenses (including her payments on Chase’s First Deed of Trust) total $2,101 and are modest in nature. This leaves her with $419 per month to fund her plan. Deutsche Bank does not argue, and the record does not suggest, that Ms. Medina has any way to increase her income or reduce her expenses. In order to accommodate Deutsche Bank’s junior secured claim, Ms. Medina’s plan payments would have to increase substantially. If the Property is not Ms. Medina’s residence (as the record suggests), then she would be able to strip down Deutsche Bank’s lien to the difference between the Property value and Chase’s proof of claim: $64,838.48. See §§ 506(a), 1322(b)(2). But repayment of even this reduced amount is likely impossible, given Ms. Medina’s limited income. She would have to pay $2,026.20 per month over the remaining thirty-two months of her plan,8 in addition to 7 The 2018 federal poverty guidelines set out by the Department of Health and Human Services calculate the poverty guideline for a single person at $12,140 per year. See U.S. Dep’t of Health & Human Servs., U.S. Fed. Poverty Guidelines Used to Determine Fin. Eligibility for Certain Programs, https://aspe.hhs.gov/poverty-guidelines. Alternatively, the U.S. Census Bureau calculates the 2017 poverty threshold at $12,488 per year for a single person. See U.S. Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-povert y-thresholds.html. 8 As of November 2018, she has thirty-two months left on her sixty-month chapter 13 plan. 19 her current plan payments and regular contractual payments on the First Deed of Trust. Combined with her other monthly expenses, this sum is nearly double her total gross income and family support.9 Thus, there is no basis for Deutsche Bank’s cavalier assertion that Ms. Medina could successfully propose and consummate a modified plan. 2. Deutsche Bank’s evidence was not “newly discovered” under Civil Rule 60(b)(2). Deutsche Bank argues that the Chase payoff quote and confirmation e-mail were newly discovered evidence under Civil Rule 60(b)(2). (It does not appeal on the basis of Civil Rule 60(b)(1) and (6).) Deutsche Bank’s lack of diligence defeats this argument. Civil Rule 60(b)(2) provides that the court may relieve a party from a final order for “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)[.]” The Ninth Circuit has stated that: Relief from judgment on the basis of newly discovered 9 The situation is even bleaker if the Property is Ms. Medina’s residence. She could only retain the Property if she resumed making her regular contractual payments to Deutsche Bank ($935.17 per month) and increased her plan payments by enough to cure her arrears under the Second Deed of Trust in a reasonable time. See § 1322(b)(5). Her total arrears as of November 2018 are probably about $127,183.02 (based on a $100,998.26 prepetition arrearage and $935.17 monthly payments for twenty-eight postpetition months). Ms. Medina would have to pay this amount during the remaining thirty-two months of her plan term at $3,974.47 per month. As a result, including her regular payments, she would have to pay approximately $4,909.64 more per month. 20  evidence is warranted if (1) the moving party can show the evidence relied on in fact constitutes “newly discovered evidence” within the meaning of Rule 60(b); (2) the moving party exercised due diligence to discover this evidence; and (3) the newly discovered evidence must be of “such magnitude that production of it earlier would have been likely to change the disposition of the case.” Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003) (quoting Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., Inc., 833 F.2d 208, 211 (9th Cir. 1987)). Deutsche Bank’s argument fails under each of these prongs. First, while Deutsche Bank may have received the payoff quote and confirmation e-mail after the Lien Avoidance Order, it knew of the discrepancy beforehand. It admitted that it pulled Ms. Medina’s credit report in July 2016 and contacted her counsel about the discrepancy the following month. It could have brought this evidence to the court but inexplicably neglected to do so. See Coastal Transfer Co., 833 F.2d at 212 (“Evidence is not ‘newly discovered’ . . . if it was in the moving party’s possession at the time of trial or could have been discovered with reasonable diligence.”). Deutsche Bank had enough evidence to oppose the Second Motion to Avoid Lien and plan confirmation or at least to seek a continuance so it could search for additional evidence. Second, as we discussed above, Deutsche Bank did not exercise due diligence to uncover the evidence concerning the amount due under the 21 First Deed of Trust. It remained silent before the court during the Second Motion to Avoid Lien, plan confirmation, and thereafter for almost a year. It never took any formal steps to compel Chase to produce the relevant information. (We find it particularly telling that Deutsche Bank ignored the bankruptcy court’s instruction to conduct discovery when the court twice continued the hearing on the Motion for Reconsideration.) We cannot excuse Deutsche Bank’s dilatory approach to this matter. Third, the purportedly new evidence was not of such great magnitude so as to likely have changed the outcome of the case. The bankruptcy court was skeptical that the payoff quote and confirmation e- mail were accurate representations of the full amount owed to Chase. (No one has bothered to explain what happened to the deferred balance.) We are equally unconvinced that the new evidence, standing alone and uncorroborated by any formal discovery, would have been sufficient to undo the Lien Avoidance Order. Simply stated, even if the court had considered the new evidence earlier, we cannot say that it would have likely changed the disposition of the case. The bankruptcy court did not abuse its discretion in holding that there was no newly discovered evidence that Deutsche Bank could not reasonably have obtained earlier. 22  3. The bankruptcy court properly considered Chase’s payoff quote and its proof of claim. Deutsche Bank contends that the bankruptcy court should not have continued the hearings and required further evidence, because Chase’s payoff quote and its proof of claim were sufficient evidence of the amount due under the First Deed of Trust. It argues that the bankruptcy court “should have considered” the payoff quote and erred when it “refused to consider” the proof of claim.10 We disagree. Deutsche Bank misapprehends the bankruptcy court’s ruling at the initial hearing on the Motion for Reconsideration. It did not refuse to consider those pieces of evidence; rather, it found that, crediting Deutsche Bank’s evidence, there was conflicting evidence presented by Ms. Medina that was also attributable to Chase. However, although Deutsche Bank had not carried its burden, the court allowed Deutsche Bank another opportunity to present a “definitive” statement from Chase, rather than denying the Motion for Reconsideration outright. Deutsche Bank squandered this opportunity. The bankruptcy court did not err when it directed Deutsche Bank to address its doubts about the accuracy or reliability of the evidence 10 Deutsche Bank sometimes asserts that “under California law, payoff quotes are binding.” But the authorities it cites only hold that a payoff quote “can be relied upon.” There is a vast gulf between these two concepts. 23 presented by Deutsche Bank on reconsideration. It properly evaluated the conflicting evidence, found neither completely convincing, and required more information. The bankruptcy court did not err in requiring Deutsche Bank to produce “definitive” evidence from Chase. 4. The bankruptcy court did not object to or amend Chase’s proof of claim. Deutsche Bank also argues that, by denying the Motion for Reconsideration, the bankruptcy court objected to and modified Chase’s proof of claim sua sponte. We disagree with Deutsche Bank’s characterization of the court’s ruling. Deutsche Bank takes the position that the bankruptcy court “noted that the modification attached to the Proof of Claim overrode the amount listed in the Proof of Claim as the total claim[,]” which was “the equivalent to an objection to the total claim amount . . . .” It claims that the court lacked standing to object to or amend a proof of claim and that its objection did not comport with due process. The bankruptcy court did not object to, amend, or otherwise alter Chase’s proof of claim. To date, Chase’s proof of claim remains unchanged from its original amount of $286,161.58. Rather, the bankruptcy court merely relied on evidence contained within Chase’s proof of claim (the claimed amount and loan modification agreement) in denying the Motion for Reconsideration. The bankruptcy court did not modify Chase’s proof of 24 claim or otherwise abuse its discretion. B. Ms. Medina is not entitled to her fees and costs on appeal. Ms. Medina requests in her appellate brief that we sanction Deutsche Bank under Rule 8020 for filing a frivolous appeal. Because Ms. Medina failed to comply with the applicable rule, we deny her request. Rule 8020(a), which is based on Federal Rule of Appellate Procedure 38, provides that, if the Panel “determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” We will not entertain a sanctions request that is not presented in a separate motion. See Cal. Emp’t Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1154 (9th Cir. 1996) (“A request made in an appellate brief does not satisfy [Federal Rule of Appellate Procedure] 38.”); Kyle v. Dye (In re Kyle), 317 B.R. 390, 395 (9th Cir. BAP 2004), aff’d, 170 F. App’x 457 (9th Cir. 2006) (“the requests are rejected as not being in ‘a separately filed motion’ as required by [Rule 8020]”). Ms. Medina did not file a separate motion requesting sanctions, as required by Rule 8020. We therefore DENY her request for fees and costs. CONCLUSION The bankruptcy court did not abuse its discretion. We AFFIRM. 25 

712 N.E.2d 1033 (1999) B & L APPLIANCES AND SERVICES, INC., Appellant-Defendant, v. Nicholas McFERRAN and Elizabeth McFerran, Appellees-Plaintiffs. No. 27A05-9809-CV-445. Court of Appeals of Indiana. June 9, 1999. *1034 Donald K. McClellan, McClellan, McClellan & Arnold, Muncie, Attorney for Appellant. Joe Keith Lewis, Marion, Attorney for Appellees. OPINION ON REHEARING MATTINGLY, Judge On February 16, 1999, this court issued its memorandum decision, 708 N.E.2d 925, affirming the trial court's denial of B & L Appliances and Services, Inc.'s (B & L) motion *1035 for relief from default judgment in favor of Nicholas and Elizabeth McFerran (the McFerrans). In our decision, we addressed a single issue: whether the trial court abused its discretion in refusing to set aside the default judgment. B & L now petitions for rehearing, insisting that our decision "omits and ignores" an agreement between the parties and is contrary to law. Appellant's Petition for Rehearing at 1. It also contends our decision amounts to "a bad lawyer joke" and fuels negative perceptions about the legal profession. Id. at 4. We address each of B & L's contentions in turn. FACTS AND PROCEDURAL HISTORY On December 13, 1995, Nicholas McFerran fell on a sidewalk in front of a building owned by Kem Mart Investors (Kem Mart), part of which building had been leased to B & L. Counsel for the McFerrans submitted settlement brochures and demands to Auto Owners Insurance Company (Auto Owners), the insurer for B & L, and to American States Insurance, the insurer for Kem Mart. The McFerrans filed a complaint for damages against B & L and Kem Mart on December 9, 1997. On December 12, 1997, the McFerrans' counsel sent a letter to both insurers, which stated that: Moreover, my clients have authorized me to instruct each of the carriers that we will not attempt to obtain a default judgment against your insureds. We pledge to both carriers that if this matter cannot be resolved between the parties, that we will give each of you written notice that answers should be filed (we will give you a minimum 30[sic] window to hire counsel after our written notification to you). R. at 58. Settlement discussions were held on December 20, 1997. On December 29, 1997, the McFerrans' counsel sent a letter to both insurance companies rejecting their joint offer. That letter stated: It is obvious that the parties are miles apart concerning the settlement of this claim based upon our demand and the offer of $20,000.00. Our clients reject this offer. Moreover, our clients reject any structured settlements at this time. We will entertain any serious offers on your parts. Please allow this letter to serve as written notice to you that we are prepared to go forward with the lawsuit. If no serious offers are going to be made, then we would expect answers to our complaint for damages to be filed within thirty days of this letter. I look forward to hearing from the both of you. Id. at 34. On December 30, 1997, counsel for Kem Mart filed an appearance. On January 12, 1998, counsel for the McFerrans contacted the adjuster for Auto Owners, who was handling the claim for B & L, and reduced the plaintiffs' demand. Neither B & L nor Auto Owners made any further settlement offers. Although telephone calls were exchanged, counsel for the McFerrans and the adjuster for Auto Owners never spoke. On March 25, 1998, almost three months after the McFerrans' letter notifying B & L and Kem Mart of their intention to proceed with the lawsuit, the McFerrans filed a motion for default judgment against B & L. The court granted that motion on March 26, 1998, setting a hearing for damages. On March 27, 1998, counsel for B & L entered an appearance; an answer to the complaint was filed on March 30, 1998. B & L filed a "Trial Rule 60(B)(1)[,](3) and (8) Motion for Relief from Judgment" on April 8, 1998. Id. at 46-50. The trial court denied B & L's motion on April 21, 1998. B & L then filed a "Motion to Enforce Plaintiffs' Agreement Not to Seek Default and for the Court to Reconsider Order Denying Defendant, B & L's Motion for Relief from Judgment," id. at 65-66, which the trial court denied on the same day it was filed. We affirmed the trial court's denial of B & L's motion. DISCUSSION AND DECISION 1. Agreement Between Parties B & L adamantly contends that the facts of record show that the McFerrans promised they would not seek a default of B & L and that we ignored that promise in reaching our previous decision. B & L argues as follows: *1036 Contrary to the Court's finding, the promise not to seek a default was not conditional. On December 12, 1997, after suit was filed, counsel for the McFerrans sent to Bruce Kotek[1] a confirming letter which state [sic] in part: . . . "My clients have authorized me to instruct each of the carriers that we will not attempt to obtain a default judgment against your insurers [sic] . . ." Contrary to the Court's determination set forth on page 6 of its opinion, the McFerrans did not promise to seek a default judgment without first giving the Defendants 30 days to appear. The December 12, 1997, letter and affidavit of Bruce Kotek, clearly revealed the McFerrans promised never to seek a default judgment. The promise, not to seek a default judgment, did not go away once the Defendants were given 30 days to file an Answer. The McFerrans did advise they would give the Defendants 30 days to file an answer, but there was never any statement the promise not to seek a default judgment was withdrawn or went away. Appellant's Petition for Rehearing at 1-2 (footnote added) (emphasis in original). B & L seems to argue that the McFerrans' December 12, 1997 letter amounted to an unconditional promise by the McFerrans never to seek a default judgment against B & L. We disagree. Under B & L's interpretation of the letter, the McFerrans would surrender all control over their lawsuit to B & L, but would receive no benefit in return. If B & L simply decided never to make an acceptable settlement offer, the McFerrans would have no recourse and could not proceed in any manner with their claim against B & L. We decline to adopt B & L's illogical interpretation of the effect of the correspondence. B & L further claims that the McFerrans misrepresented their intent to seek a default of B & L, and that Gallant Ins. Co. v. Toliver, 695 N.E.2d 592 (Ind.Ct.App.1998) controls. In Gallant, an insurance carrier relied on plaintiff's counsel's representations that he would contact the carrier after taking the defendant's deposition, and so did not file an appearance in the case. This court set aside a default judgment entered against the insurer, stating that: Although Ludlow [plaintiff's counsel] generally would not be obligated to keep Gallant informed of the progress in the case, his representation to Gallant that he intended to depose Rickelman and that he would inform Gallant of Rickelman's insurance status created a duty to keep Gallant apprised of any change in his intentions with respect to proceeding with the case. Gallant need not establish that Ludlow intentionally mislead [sic] it, only that it was justified in assuming nothing was going to happen in the case until further notice by Ludlow. Therefore, we conclude that Gallant reasonably relied on Ludlow's representation and, therefore, satisfied the requirements of T.R. 60(B)(1) in showing excusable neglect. Id. at 595. Gallant is distinguishable from the present case, as the McFerrans' counsel notified the defendants that the McFerrans intended to proceed with the lawsuit. The December 29, 1997 letter from the McFerrans' counsel made it quite clear that the McFerrans expected B & L to file an answer to their complaint within thirty days absent a serious settlement offer. We observe that B & L's co-defendant, Kem Mart, had no difficulty understanding the clear meaning of that language, and hired counsel to appear and answer on its behalf. B & L argued on appeal that, because the December 29, 1997 letter indicated that the possibility of settlement still existed, the adjuster "was justified in assuming nothing was going to happen until further notice." Brief of Appellant at 15. We do not agree. The letter states, in part, that "[i]f no serious offers are going to be made. . . ." R. at 34. Auto Owners made only one offer, which was rejected in the December 29, 1997 letter. Had Auto Owners actually made another offer to the McFerrans, then B & L might have grounds to complain that "counsel deceived an insurance representative as to the purpose of the lawsuit." Brief of Appellant at 15. Since there was no further offer, *1037 however, B & L could not have been deceived. The McFerrans did not extend to B & L a promise never to seek a default judgment under any circumstances. They did extend a promise not to seek a default judgment without first giving the defendants thirty days to appear. That promise was fulfilled in the McFerrans' December 29, 1997 letter. Unlike its co-defendant, B & L simply did not respond to the letter. As a result, B & L is not entitled to relief under Trial Rule 60(B)(1), (3), or (8). The trial court did not abuse its discretion in failing to set aside the default judgment. 2. B & L's Attack on the Integrity of this Court We quote verbatim B & L's third argument in support of its petition for rehearing: III. SADLY, THE RAMIFICATIONS OF THE COURT'S DECISION READS [sic] LIKE A BAD LAWYER JOKE . . . "WHEN IS IT OKAY FOR A LAWYER TO LIE? WHEN HIS LIPS ARE MOVING TO AN INSURANCE ADJUSTER." This Court's opinion continues the perception that was discussed extensively in the Indiana Lawyer, March 3-16, 1999, where the legal profession is attempting a public relations campaign concerning the public's perception of lawyers. The Indiana Lawyer discussed the American Bar Association's study that said the public's perception is lawyers are more concerned with their own interests than the public's or their client's and expressed a concern to stop the cocktail party jokes or mute the motion picture stereotypes that paint the legal profession as greedy and ruthless. The Court's opinion does nothing more than fuel these perceptions. It is a widely held belief by the general public that lawyers lie and the Court's [sic] protect them. This Court cannot ignore McFerrans' lawyer lied to Bruce Kotek, when he promised not to seek a default, communicated both orally and in writing, and then later filed a default. The breaking of a promise is a lie and the essence of the Court's holding is that it is acceptable for a lawyer to lie to an insurance adjuster. The Trial Court abused its' [sic] discretion in not enforcing McFerrans' promise not to seek a default. This Court could have advanced lawyer accountability in communications by finding the Trial Court abused its' [sic] discretion in not enforcing McFerrans' lawyer's promise and further, by stating the failure to enforce a lawyer's promise not to seek a default constitutes an abuse of discretion and holding that attorney misrepresentations or lying would not be tolerated. Appellant's Petition for Rehearing at 4 (emphasis in original). We take strong exception to B & L's characterization of this court's ruling as a bad lawyer joke. B & L's assertions are no laughing matter.[2] The very nature of a petition for rehearing generally presupposes that the counsel who files such a petition disagrees with the court's earlier holding. This court is certainly willing to reconsider its decisions when appropriate and encourages counsel to pursue rehearing or our reconsideration when warranted to zealously represent the interests of clients. However, in framing arguments in support of rehearing or reconsideration, counsel are obliged to maintain a respectful bearing towards this court. See Redman v. State, 28 Ind. 205, 212 (1867). We remind B & L's counsel that members of the bar are officers of the court. They are its assistants in the administration of justice, and so intimately related to our judiciary system, and so much a part of it, that thoughtful and self-respecting attorneys seldom allow themselves, however much they may feel aggrieved, to make public expression, in argument or otherwise, derogatory to the rectitude or good intentions of the bench. See Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Muncie & Portland Traction *1038 Co., 166 Ind. 466, 466, 77 N.E. 941, 941 (1906). We direct counsel for B & L to the advice this court rendered in WorldCom Network Servs., Inc. v. Thompson: [O]verheated rhetoric is unpersuasive and ill-advised. Righteous indignation is no substitute for a well-reasoned argument. We remind counsel that an advocate can present his cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics. 698 N.E.2d 1233, 1236-37 (Ind.Ct.App.1998). As our supreme court noted in Portland Traction: Counsel has need of learning the ethics of his profession anew, if he believes that vituperation and scurrilous insinuation are useful to him or his client in presenting his case. The mind, conscious of its own integrity, does not respond readily to the goad of insolent, offensive, and impertinent language. It must be made plain that the purpose of a brief is to present to the court in concise form the points and questions in controversy, and by fair argument on the facts and law of the case to assist the court in arriving at a just and proper conclusion. A brief in no case can be used as a vehicle for the conveyance of hatred, contempt, insult, disrespect, or professional discourtesy of any nature for the court of review, trial judge, or opposing counsel. Invectives are not argument, and have no place in legal discussion, but tend only to produce prejudice and discord. 166 Ind. at 466, 77 N.E. at 941-42. This court has previously acknowledged its plenary power to order a brief stricken for "the use of impertinent, intemperate, scandalous, or vituperative language in briefs on appeal impugning or disparaging this court, the trial court, or opposing counsel. . . ." Clark v. Clark, 578 N.E.2d 747, 748 (Ind.Ct.App.1991). Striking scandalous or impertinent material has been a part of Indiana practice since long before adoption of our present trial rules. See WorldCom, 698 N.E.2d at 1237; State v. Hoovler, 673 N.E.2d 767, 768 (Ind.1997). We thus strike the entire third section of B & L's Petition for Rehearing. Counsel is admonished that such impertinent argument is both a disservice to his client and demeaning to the judiciary and the legal profession. The petition for rehearing is granted. This opinion on rehearing shall modify and supersede our memorandum decision. FRIEDLANDER, J., and KIRSCH, J., concur. NOTES [1] Bruce Kotek was the insurance adjuster for B & L's insurance carrier. [2] In Bloomington Hosp'l v. Stofko, 709 N.E.2d 1078, 1079 n. 1 (Ind.Ct.App.1999), we cautioned counsel that "referring to an opinion as `incomprehensible' when seeking reconsideration from the very judges who issued the opinion is unpersuasive and ill-advised." The same consideration holds when referring to one of our opinions as a bad lawyer joke.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-6016 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DARRELL KEITH EVANS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Matthew J. Perry, Jr., Senior District Judge. (CR-95-837, CA-97-2072-10-3) Submitted: May 19, 1998 Decided: June 18, 1998 Before ERVIN and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Randolph Marshall Lee, Charlotte, North Carolina, for Appellant. Marshall Prince, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant Darrell Keith Evans seeks to appeal the district court's order denying his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998). We have reviewed the record and the dis- trict court's opinion and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reasoning of the district court. United States v. Evans, Nos. CR- 95-837; CA-97-2072-10-3 (D.S.C. Nov. 24, 1997). We dispense with oral argument because the facts and legal contentions are adequate- ly presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2